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Full-Text Articles in Law
How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen
How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen
Publications
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 …
Silence And The Second Wall, Ming H. Chen, Zachary New
Silence And The Second Wall, Ming H. Chen, Zachary New
Publications
The Trump administration has made its clarion call “build the wall.” From the start of the presidential campaign to the government shutdown to the declaration of a national emergency, he has made the wall the centerpiece of his immigration enforcement strategy. While the public attention has been riveted on these dramatic episodes at the southern border of the U.S., many more subtle challenges to legal migration have been introduced and implemented. Collectively, these constitute a second wall – one that is invisible to all but the few who have noticed it. This essay explores the distinctive challenges being posed to …
Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen
Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen
Publications
The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …
Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen
Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen
Publications
This Article provides a framework for understanding the role of the President as the Administrator-in-Chief of the executive branch. Recent presidents, in the face of heated controversy and political division, have relied on executive action to advance their immigration policies. Which of these policies are legitimate, and which are vulnerable to challenge, will determine their legacy. This Article posits that the extent to which the President enhances the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted regarding their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted …