Note, Two Wrongs Make a Right: Hybrid Claims of Discrimination

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II\u27s hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts

Governing by Guidance: Civil Rights Agencies and the Emergence of Language Rights

On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term national origin discrimination during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, albeit to different extents in schools and workplaces. The Article highlights the use of guidances to protect language minorities as a distinctive breed of civil rights law. It uses a historic, yet understudied episode to illustrate an often used, sometimes contested practice: governing by guidance

Race and Regulation Podcast Episode 7 - Citizenship, Race, and Political Inequality

Formal citizenship requirements for political participation excludes not only noncitizens, but also many individuals from racial communities perpetually seen as foreigners. Ming Hsu Chen of the University of California Hastings College of Law looks at regulatory barriers, such as voter ID laws, that inhibit both racial minorities and non-citizens from participating equally in the American political process. She offers proposals for regulatory changes that would create a more equitable political order

The Political (Mis)Representation of Immigrants in the Census

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality

Sanctuary Networks and Integrative Enforcement

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise sanctuary networks --to the Trump Administration\u27s Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor

How Much Procedure Is Needed for Agencies to Change “Novel” Regulatory Policies?

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier and faster and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment and immigration law issues such as deferred action. The current administration has rolled back many of these policies and advanced its own positions. This Essay will focus on recent developments in the use of guidance documents with an eye toward analyzing the implications of Trump Administration’s executive order on guidance. It begins by summarizing the issue of policymaking through guidance, highlighting the impact of recent issuances that stiffen procedural requirements for “novel legal and policy issues.” It illustrates the stakes of these changes using recent controversies in immigration law and civil rights and reflects on their significance for the administrative law of guidance