For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and...
Administrative Law
The visa application process is laden with discretion and reinforced by consular nonreviewability—an extensive form of judicial deference. Until recently, courts recognized a small exception to consular nonreviewability. Under this exception, courts engaged in limited review of a consular officer’s decision when visa denials implicated the fundamental rights of U.S. citizens.
The Court curtailed this exception in United States Department...
The Colorado River Basin is drying up, and with it, the water supply of seven states in the American West. Historically, the West relied on consumption-based laws to fuel development despite the arid landscape. The Colorado River Compact allocated water among the states, but those allocations suffered from two basic flaws: (1) The agreed-upon water flow of the river was based on a particularly wet season in the region, and (2) the Compact was not...
Social Security is funded by a regressive tax in which wages below the wage cap ($160,200 in 2023) are taxed at a flat rate but wages above the cap are taxed at zero. To address this normative shortcoming and make Social Security progressive, this Piece proposes eliminating the wage cap and using the resulting additional revenue to fund a zero-rate Social Security tax bracket analogous to the standard deduction of the federal income tax.
IRS...
Despite a burgeoning conversation about the centrality of information management to governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made...
In myriad areas of public life—from voting to professional licensure—the state collects, shares, and uses sex and gender data in complex algorithmic systems that mete out benefits, verify identity, and secure spaces. But in doing so, the state often erases transgender, nonbinary, and gender-nonconforming individuals, subjecting them to the harms of exclusion. These harms are not simply features of technology design, as others have ably written....
In a series of recent cases, the Supreme Court has reconfigured the administrative state in line with a particular version of Article II. According to the Court’s scheme, known as the theory of the “unitary executive,” all of the government’s operations must be housed under one of three branches, with the head of the executive branch shouldering unique and personal responsibility for the administration of federal law.
Guiding the...
National security review of corporate transactions has long been a relatively sleepy corner of regulatory policy. But as governments merge economic and national security, national security reviews are expanding in frequency and scope, causing numerous deals to be renegotiated or even blocked. This expansion of national security’s impact on corporate transactions—which this Essay calls “national security creep”—raises theoretical questions...
This Essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive...
This Article uncovers the intellectual foundations of presidential administration and—on the basis of original archival research and new contextualization—grounds its legitimacy in the fight against fascism. It shows how the architects of presidential control of the administrative state reconciled a strong executive with democratic norms by embracing separation of powers in order to make the government responsible and antifascist. It then draws...