The Claims of Official Reason: Administrative Guidance on Social Inclusion

By Emerson, Blake | The Yale Law Journal, July 2019 | Go to article overview

The Claims of Official Reason: Administrative Guidance on Social Inclusion


Emerson, Blake, The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION                                                    2125   I.  GUIDANCE AND OFFICIAL CONDUCT                             2139       A. The Problem Presented: Deferred Action and Texas v.    2140          United States       B. Law Without Force: The Normative Weight of Official    2144          Duty  II.  EXTERNAL EFFECTS OF GUIDANCE                              2156       A. Externalizing the "Internal Point of View"             2158       B. The Reviewability of Guidance: Title VII Enforcement   2163          Policy III.  INTERPRETIVE RULES AS NONBINDING GUIDANCE                 2173       A. The Practice of Regulatory Interpretation: Title IX,   2175          Sexual Harassment, and Sexual Violence       B. Binding Language in Nonbinding Interpretations         2178       C. Regulatory Interpretations Before the Courts           2186  IV.  RELYING ON GUIDANCE                                       2195       A. Guidance and Social-Movement Mobilization              2196       B. Reliance and Reason Giving                             2201       C. Reliance on Official Recognition                       2207 CONCLUSION                                                      2216 

INTRODUCTION

During Barack Obama's presidency, administrative agencies issued several controversial guidance documents that attempted to push the boundaries of social inclusion. The Department of Education issued a Dear Colleague letter interpreting statutory and regulatory norms against sex discrimination in education to encompass an obligation on federal-education-grant recipients to adjudicate claims of sexual assault and harassment. (1) The Equal Employment Opportunity Commission (EEOC) issued guidelines on when the use of arrest-and-conviction records in employment decisions may constitute racial discrimination under Title VII of the Civil Rights Act of 1964. (2) The Departments of Justice and Education jointly issued guidance on the application of the civil rights laws to transgender persons. (3) In each case, the agencies implemented regulatory laws that concern racial or gender inclusion in various social spheres. The resulting guidance documents sought to delineate the scope of that inclusion. They stated that schools must ensure that campus interactions do not create a hostile environment that excludes people from access to education because of their sex; federal grantees must ensure transgender persons are not excluded from facilities that are consistent with their gender identity; and employers should ensure that they do not, without sound business justification, exclude persons arrested for or convicted of a crime from labor-market participation.

The Obama Administration's deferred-action immigration programs likewise sought to extend the sphere of political recognition. The Department of Homeland Security (DHS) issued enforcement memoranda, listing criteria to be considered in deferring deportation proceedings against persons who unlawfully entered the United States as children, (4) or who entered unlawfully and have children who are citizens or lawful permanent residents. (5) The former policy, known as Deferred Action for Childhood Arrivals (DACA), states that its purpose is to specify how the government should "enforce the Nation's immigration laws against certain young people who were brought to this country as children and know only this country as home." (6) The latter policy, known as Deferred Action for Parents of Americans (DAPA), similarly declares that "[t]he reality is that most individuals" who may qualify for deferral "are hard-working people who have become integrated members of American society." (7) Both DACA and DAPA therefore invoke these individuals' social grounding in the United States as a reason to allow them to remain in the country and gain a qualified, protected status--a claim their longstanding presence in the territory makes upon the American people and government. …

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