THE TRUMP ADMINISTRATION SHOULD CONDUCT A “DISPARATE IMPACT INVENTORY”: In Ricci v. DeStefano (2009), a Title VII case that concerned the tension between liability for intentional discrimination and liability for disparate impact liability, Justice Scalia began his concurrence this way:

I join in the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?

I gave a talk at the Federalist Society’s Executive Branch Review a couple of months ago entitled It’s Time for the Executive Branch to Conduct a “Disparate Impact Inventory” (The link is to a written version of the talk w/ a few footnotes added). Essentially, I said that Scalia’s doubts about the constitutionality of disparate impact liability need to be taken seriously.  The Trump Administration should begin evaluating the issue for each of the anti-discrimination laws and policies that use disparate impact liability. Does that use violate the Constitution’s guarantee of equal protection or not?  (More here.)