In the American constitutional system, Congress writes the laws and the president executes them. Each derive their authority from the Constitution and are bound by it. One of Congress’s most important sources of power is the Spending Clause, which enables it to raise and allocate funds in pursuit of the nation’s “general welfare.” Through this clause, Congress has enacted some of the country’s most significant civil rights laws, including Title VI, Title IX, Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA). The job of the president (and federal agencies) is not to change Congress’s laws but to carry them out.
Federal agencies do this by creating regulations and the Administrative Procedure Act (APA) sets the rules for how they do so. Because regulations shape rights and obligations across the country, the APA requires that they be made—and unmade—openly, with public explanation and opportunities for input. When a president sidesteps the APA’s procedures to rescind a regulation grounded in Spending Clause legislation, the harm is not merely technical. It breaches constitutional boundaries, infringes on Congress’s authority, and violates the separation of powers. Last week, the administration crossed that line.
A Wolf in Sheep's Clothing
On December 10, the U.S. Department of Justice issued a final rule rescinding long-standing provisions of its Title VI regulation that prohibited policies and practices with a disparate impact based on race, color, or national origin. The administration explained that the change was necessary to “conform more closely” to the statutory language of Title VI and Supreme Court precedents and to reflect an executive decision to eliminate disparate-impact analysis altogether.
Formally, the rule modifies sections of 28 C.F.R. Part 42 that, for decades, defined discrimination to include facially neutral practices that disproportionately burden people based on race, color, or national origin. Moving forward, federal enforcement under Title VI will focus solely on proof of intentional discrimination.
The regulation is remarkable and I was stunned when I read it. However, the response to it has been surprisingly subdued. This is not because the rule is insignificant but because, in two key ways, it simply recognizes a reality that has been present for some time. First, since the Supreme Court’s ruling in Alexander v. Sandoval, 532 U.S. 275 (2001), private plaintiffs bringing Title VI claims generally need to demonstrate intentional discrimination, leaving disparate impact claims to be enforced only by federal authorities. Second, the move represents a change in regulation that simply reflects the current reality. Cuts in staffing at the Civil Rights Division of the Department of Justice and the Department of Education’s Office for Civil Rights have led to inconsistent (and sometimes non-existent) civil rights enforcement at best. Viewed this way, the rescission is more a confession than a revolution.
But to stop there misses the real story. The deeper significance of this episode lies not in the fate of disparate impact theory, nor even in civil rights policy writ large. Instead, the real story lies in the administration’s casual treatment of the Administrative Procedure Act (APA), the Constitution’s Spending Clause, and the guard rails that have protected our democracy for over 200 years.
A Theory Already on Life Support
Disparate impact has long been a controversial topic. Detractors say that civil rights laws are designed to combat prejudice and bigotry—results caused by hatred or bias against certain groups—and not innocent actions that happen to produce statistically different outcomes. Supporters do not deny that intent matters or that genuinely innocent actors should not face harsh punishment. Instead, they emphasize necessity. Modern discrimination is rarely overt and almost never documented—only a fool would leave behind a “smoking gun” like a memo admitting unlawful motives. Bias is often hidden in seemingly neutral rules and routines, with impacts only visible through patterns that emerge over time. Disparate impact analysis compels organizations to scrutinize outcomes, identify patterns they might overlook, and refine the very systems civil rights laws aim to improve.
The debate over disparate impact has persisted for decades in courts and legislatures. Regardless of one’s position, however, the legal landscape after Sandoval became clear: disparate impact under Title VI primarily involved federal enforcement rather than private lawsuits. Agencies could sue fund recipients under Title VI based on statistical disparities, but private plaintiffs could not.
Seen in that light, DOJ’s decision to revoke the disparate impact provisions of its Title VI regulations could be viewed as a symbolic act that reflects its ongoing retreat from civil rights enforcement. However, symbolism matters when it masks a deeper strategy at work. It is that strategy that should raise concern.
Abusing the Administrative Procedure Act
When it rescinded the disparate impact provisions of Title VI, the Department of Justice bypassed the usual 90-day notice and comment period entirely and issued a final regulation that took effect immediately. For a regulation that defines the government’s civil rights obligations nationwide, that shortcut is not routine housekeeping; it is a deliberate choice to avoid democratic scrutiny.
The notice and comment rulemaking process is essential to modern democracy. In June 2024, I wrote about the Administrative Procedure Act (APA) and explained the federal rulemaking process in a post discussing the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). Basically, Congress passes broad statutes and agencies develop detailed regulations to implement those statutes. The APA usually requires agencies to publish draft regulations publicly and allow the public to comment for a 90-day period. Afterwards, agencies must review every comment and, if they decide to issue a final regulation, explain how the public’s comments influenced the final rule. This process is intentionally slow, deliberate, and transparent.
The administration decided to ignore the notice and comment process, using the pretext of Section 553(a)(2) of the APA (which exempts rules relating to “public property, loans, grants, benefits, or contracts” from notice and comment). But legislation enacted under the Constitution’s Spending Clause (such as Title VI) is not merely a “contractual arrangement” with the executive branch. Instead, laws passed under the Spending Clause are one of the only ways Congress sets the terms on which public funds may be spent. Through it, Congress controls a broad swath of rules on which we all depend, from civil rights to highway safety. By recasting those statutory obligations as mere “contracts,” the administration asserts its belief that it can rewrite or ignore any regulation grounded in Spending Clause legislation at will and without any public oversight. If rules implementing Congress’s spending decisions can be created or erased without public process, the separation of powers becomes a formality. What may appear as just a regulatory shortcut may actually be an outright power grab.
The Dismantling of Civil Rights
Put bluntly, every civil right since the 1960’s is potentially up for grabs because at least some portion of them is based on the Spending Clause. Title VI prohibits discrimination based on race, color, or national origin. Section 504 of the Rehabilitation Act prohibits disability discrimination. Title IX bars sex discrimination in education. The Age Discrimination Act of 1975 protects older Americans. The Individuals with Disabilities Education Act (IDEA) protects students with disabilities. Each of these laws are based on the Spending Clause and, according to the administration, the regulations for each of these laws can be rescinded at the stroke of a pen.
This blog focuses on the intersection of technology and disabilities. So let’s bring this discussion even closer to home. Back in May, we blogged about the HHS regulation that requires HHS fund recipients (including Medicare and Medicaid funding) to meet WCAG 2.1 A/AA. That regulation, which took years of careful and public rulemaking, could disappear with a simple notice in the Federal Register.
Why This Transcends Politics
It is tempting to view all of this through a familiar partisan lens. Democrats and Republicans both criticize the president for abusing executive power whenever the other party occupies the White House. This administration dislikes disparate impact and expansive civil rights enforcement. Using Section 553 of the APA is just a clever way to eliminate them and the Democrats are mad that they didn’t discover it first.
Spending Clause legislation cuts both ways, however. A striking recent example is the so-called “One Big Beautiful Bill Act,” which conditions federal funding on the exclusion of abortion services. Those provisions rest on the Spending Clause, just like Title VI. The current administration will have to go through a lengthy rulemaking process to implement that requirement and so a future administration could simply eliminate that provision at the stroke of a pen—no notice, no comment, no accountability required.
If the Democrats did that, I would complain just as loudly because democratic systems are not supposed to work that way. The genius of the Administrative Procedure Act lies in its restraint. It deliberately slows down government, requiring agencies to explain their choices, listen to objections, and justify changes publicly. This serves as a quiet check on impulsiveness—a safeguard against rule by fiat.
Similar procedural limits are under pressure in many democracies around the world. Populist leaders use technical interpretations and administrative shortcuts under the guise of speed and decisiveness. This procedural erosion rarely signals a constitutional crisis, but the full impact of their actions becomes clear in hindsight. The rescission of DOJ’s Title VI disparate impact regulation does not, by itself, end civil rights enforcement. However, the method used to achieve this should worry anyone concerned about the future of civil rights and democracy in our country. The true threat is the gradual erosion of the procedural boundary that separates a constitutional president from an abusive autocrat.
Just last week, the Supreme Court heard arguments in Trump v. Slaughter, which questions whether the president has unlimited authority to remove the heads of independent federal agencies. This week’s issue of The Economist discussed this expansion of presidential power and offered a unique historical perspective only a British publication could provide. Before our country was established, the English Civil War (roughly 1642 to 1651) resulted in Parliament controlling the monarch’s ability to raise and spend money—and thus wage war—as a key safeguard preventing a monarch from becoming an autocrat. A little over 100 years later, our founders were very aware of that lesson from British history when they included the Spending Clause in the Constitution. Hopefully, we won’t forget that lesson today.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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