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Among his first acts, President Biden signed Executive Order 13,985 to advance “Racial Equity and Support for Underserved Communities Through the Federal Government.” Alongside an order directing regulatory review to include “social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations” and an ambitious infrastructure plan, this Equity E.O. signals a new engagement of the administrative state in proactively promoting racial equity and other dimensions of inclusion. The outlines of the infrastructure initiative are still emerging, but what appears key is its conceptualization of infrastructure as extending beyond roads and buildings to the social and human capital — including technological access and caregiving — that enables connection to opportunity and full thriving for all Americans. Crucially, the proposed infrastructure plan also directs investments into communities that were intentionally excluded from or harmed by federal government programs, for instance, communities cut off from economic opportunity by the construction of federally-funded highways or redlined out of federally backed housing loan programs. The Equity E.O. may seem technocratic in comparison, as it is big on process and short on concrete initiatives and new money, but, alongside the other initiatives, it has potential to prompt serious examination of the role of the administrative state in the formation and maintenance of racial and other forms of inequality and to lead to creative rethinking of the structure and design of federal programs across a range of domains.


Administrative Law | Civil Rights and Discrimination | Law


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