No Return: Caste and the End of the Liberal Debate over U.S. Antidiscrimination Law

Julie Novkov

For decades, debates over antidiscrimination law have been between competing frames of antisubordination and anticlassification, both of which use the idea of caste as a form of immanent critique. This Article will analyze how the Trump Administration rejects this debate, articulating a new understanding of antidiscrimination. In considering and criticizing the Administration, many observers focused primarily on attempts to change constitutional structure to advance a highly empowered unitary executive branch and criticized the Administration’s willingness to violate longstanding norms and even laws defining and defending separation of powers. With this emphasis, the DEI, gender identity, and other orders appear as problematic but less dangerous to constitutional structure. The flurry of executive orders (“EOs”) released in the first three months of Trump’s second term, however, constitute more than a troubling distraction from a more fundamental structural agenda. For many years, antidiscrimination has been embedded in our legal framework as a core pillar of constitutional structure, and the EOs that the Trump Administration has released addressing identity, inequality, and discrimination across several policy areas engineer an important overall shift in constitutional discourse and the framework itself. They are themselves a central part of the Administration’s efforts to engage in constitutional transformation.