The Download of the Week is The Dismantling of Civil Rights Protections and Thoughts on Rebuilding by Samuel R. Bagenstos & Ellen D. Katz. Here is the abstract:
Over a few months in 2025, the second Trump Administration dismantled the infrastructure for federal civil rights enforcement in the United States. In this paper, we describe key elements of this assault assess its impact, and sketch the beginnings of a set of longer-term goals for remaking civil rights enforcement.
We begin with the premise that there is no returning to precisely the same doctrinal and institutional structures set up in the second part of the twentieth century. Restoring the regime to provide the protections that existed on January 20, 2025, when the present assault began, would resurrect what was already a hollowed-out system whose operation fell far short of the aspirations that first propelled it. Nor do we advise restoring the regime to the contours it occupied in, say, 1970, before the many cutbacks that prevented it from operating as intended. Such a restoration simply would not be feasible, even allowing for the dramatic change in political will necessary to secure the far more modest legal changes we recommend here. Nor would such a restoration address head on the evolution in both the manifestation of discriminatory practices and the resistance to remedies for them.
We must instead rethink both the substantive doctrines through which we seek to achieve democratic equality and the institutional structures through which those doctrines will be elaborated and enforced. Examining the events of the last year, we believe that a lasting infrastructure for civil rights enforcement requires direct engagement with the specific tactics the current Administration has used to dismantle the pre-existing system. The paper focuses on three of these tactics, which we label erasure, demolition, and weaponization. More specifically, it argues that rebuilding will require structures designed to withstand more effectively future efforts that seek to (1) erase existing data pertaining to race, ethnicity, and gender in a host of realms and terminate the further collection and reporting of such data by both public and private entities; (2) demolish federal civil rights offices within various agencies that worked to promote multi-racial democracy; and (3) weaponize the longstanding enforcement tools of civil rights law against the goals of multiracial equality and democracy. The paper sketches some preliminary proposals for doing so.
Highly recommended.