The Impending Judicial Regulation of Artificial Intelligence in the Administrative State

Artificial Intelligence (AI) algorithms are being deployed in executive branch agencies at a brisk pace and with no executive branch account for their use. The proliferation of AI in government raises civil rights concerns because it has been found—at a general level—to succumb to racial and gender biases when AI algorithms are incompetently or intentionally trained. Policy solutions have been put forth to mitigate the issue of such AI uses in government, some of which are in the process of being implemented. Despite these gains, the political branches of the federal government have limited time to act before their primary policymaking authority is diluted or potentially ceded to the Judiciary. This essay argues that in the absence of timely action of the Executive or Legislative branches to establish procedures to mitigate administrative agency AI accountability and transparency gaps, the Judiciary may dictate such procedures via remands under the administrative record provision of the Administrative Procedure Act of 1946 as it first did 50 years ago with informal adjudications in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

Administrative Investigations

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that the Article III courts have held that such agency behavior is essentially unreviewable since the mid-twentieth century. It identifies the historical guideposts of administrative investigations and analyzes the substantial power agencies wield when they investigate. It surveys and analyzes the limiting principles in law that operate as nominal constraints to unlawful administrative investigative behavior. This Article concludes by considering procedural and substantive constraints that could be implemented to align agency investigations with constitutional and statutory norms without sacrificing their ability to fulfill their critical missions for the American public

Snap: How the Moral Elasticity of the Denaturalization Statute Goes Too Far

Comprehensive immigration reform is a popular topic in Congress. While many reform bills have been offered, none have addressed the significant substantive and procedural issues surrounding denaturalization, the process where the federal government may seek to have a naturalized persons citizenship revoked in federal court if his citizenship was unlawfully or fraudulently procured.Though denaturalization serves public policy as a final check on naturalization fraud, existing law also permits the government to denaturalize an individual solely for speech and expressive association that occurs after one acquires citizenship. This provision, 8 U.S.C. § 1451(c), violates naturalized citizens First Amendment rights to free speech and association, interferes with their Fifth Amendment right of equal protection, and also has a tendency to overpenalize otherwise innocent conduct. Moreover, authority to initiate a denaturalization proceeding is spread among the Attorney General and all U.S. Attorneys. Congress has not codified an evidentiary burden for denaturalization since the process was initially enacted in 1906. To protect the constitutional rights of all U.S. citizens and to provide legislative clarity, Congress should excise 8 U.S.C. § 1451(c) from immigration law, vest sole authority to initiate denaturalization proceedings with the Attorney General, and codify the clear, unequivocal, and convincing evidentiary burden

Administrative Investigations

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that Article III courts have held that such agency behavior is essentially unreviewable since the mid-twentieth century. It identifies the historical guideposts of administrative investigations and analyzes the substantial power agencies wield when they investigate. It surveys and analyzes the limiting principles in law that operate as nominal constraints to unlawful administrative investigative behavior. This Article concludes by considering procedural and substantive constraints that could be implemented to align agency investigations with constitutional and statutory norms without sacrificing their ability to fulfill their critical missions for the American public

Chaidez v. United States - You Can\u27t Go Home Again

This article examines a 2013 Supreme Court decision, Chaidez v. United States, in which the Court declined to apply retroactively another recent decision, Padilla v. Kentucky. To many observers, Chaidez appears to be a discrete departure from previous Sixth Amendment right to counsel jurisprudence. On a personal level, noncitizens who pled guilty to a crime without being apprised of the plea’s removal risks are now unable to seek redress under Padilla and return to their homes in the United States. This article examines relevant Sixth Amendment and retroactivity jurisprudence and proposes an explanation for the Court’s apparent aboutface

The Impending Judicial Regulation of Artificial Intelligence in the Administrative State

Artificial Intelligence (AI) algorithms are being deployed in executive branch agencies at a brisk pace and with no executive branch account for their use. The proliferation of AI in government raises civil rights concerns because it has been found—at a general level—to succumb to racial and gender biases when AI algorithms are incompetently or intentionally trained. Policy solutions have been put forth to mitigate the issue of such AI uses in government, some of which are in the process of being implemented. Despite these gains, the political branches of the federal government have limited time to act before their primary policymaking authority is diluted or potentially ceded to the Judiciary. This essay argues that in the absence of timely action of the Executive or Legislative branches to establish procedures to mitigate administrative agency AI accountability and transparency gaps, the Judiciary may dictate such procedures via remands under the administrative record provision of the Administrative Procedure Act of 1946 as it first did 50 years ago with informal adjudications in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

In Search of the Presumption of Regularity

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 bedrock case. It finds that due to the indeterminacy of the Supreme Court to squarely articulate the presumption and its limiting principles, courts have applied it in at least 14 distinct scenarios that each carry a unique definition. It argues that the presumption of regularity is inaccurately conflated with the presumption of good faith and that several aspects of its modern uses violate separation of powers principles and the Administrative Procedure Act of 1946. This Article makes the case that the Supreme Court or Congress should articulate a lawful, historically supported, and sensible doctrinal standard for the presumption of regularity to benefit each of the branches of the federal government and the American public