Habeas Corpus: The Limitation of the Writ Creating Issues for Prisoners

September 2024 | Haley Zavsza Zavsza (Staff Writer)

In the American judicial system, “you have the body,” or, in Latin terms, the writ of habeas corpus; but do you? In 2023, the Jones v. Hendrix [1] Supreme Court 6-3 ruling decided that imprisoned people who have filed for post-conviction relief can be barred from filing a second time, even if they’re innocent of the crime they have been incarcerated for. Rather than through habeas petition, Congress now requires prisoners to challenge sentences in the sentencing courts. This new ruling faced criticism when prisoners were restricted from seeking habeas relief based on a new interpretation of criminal stature. Even though habeas corpus is not a right, is it unconstitutional for prisoners to be barred from habeas relief? If not, a course of action should be taken to reform the post-conviction relief process. The Jones v. Hendrix ruling restricts prisoners from filing habeas petitions, highlighting an ongoing trend in the last thirty years of a lack of retribution from Congress and the judicial branch toward wrongfully incarcerated people.

History of Habeas Corpus 

The writ of habeas corpus is used in the U.S. federal court system to bring a prisoner or detainee before the court to determine whether the confinement is lawful.  It was first introduced in the U.S. court system in the Judiciary Act of 1789, authorizing the federal courts to grant habeas relief to federal prisoners. [2]

In the antebellum period U.S., the court used habeas corpus to free slaves and block their return to the South or to cooperate with the South to recapture enslaved people. [3] The Alabama court in 1853, Field v. Walker, ruled that enslavers had a right to a jury trial before an enslaved person could be taken from them. [4] The following year, the Kentucky Court of Appeals in Weddington v. Sam Sloan upheld the power of the master to recapture enslaved people discharged through habeas corpus. [5] As a result, four Northern states guaranteed a jury trial for habeas corpus involving slavery. In these jury trials, courts often denied habeas relief to enslaved people. After the Civil War, the Judiciary Act expanded to allow habeas relief to prisoners even if they were held in custody for violating federal law. [6]

Beginning the 30-year lack of advocacy toward incarcerated individuals, The Antiterrorism and Effective Death Penalty Act 1996 [7] (AEDPA) significantly changed and instituted limitations on the habeas corpus writ. AEDPA increased penalties for crimes involving terrorism, provided restitution for victims of terrorism, and set new legal procedures for capital cases. [8] These reforms restricted a habeas petitioner’s ability to file a second habeas petition, stating that a habeas claim is only successful when the court decisions are conflicting, involved in an unreasonable application of a clear-cut federal law, or based on an unreasonable determination of facts from the evidence presented at state court hearings.   

The Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA) [9] attempted to limit the writ of habeas corpus further. The DTA prohibited the inhuman treatment of enemy combatants and listed the order of operations for interrogations in the United States. [10] The MCA was an act that followed the DTA, which required prisoners who were held in Guantanamo Bay to go through military commissions and then seek appeal in the D.C. District Court rather than using habeas corpus to access the federal courts. [11] However, in 2008, the Supreme Court case (5-4 ruling) Boumediene v. Bush [12] made it clear that enemy combatants who were not American and were being held outside the United States had the constitutional right to habeas corpus through the Suspension Clause. The suspension clause guarantees the privilege of the writ of habeas corpus except in cases of rebellion or invasion. [13]

Jones v. Hendrix Case Facts

The 2023 Supreme Court case, Jones v. Hendrix, [14] provides the most recent limitation on habeas corpus. Marcus DeAngelo Jones, convicted by a jury on one count of making false statements to acquire a firearm and two counts of possessing a firearm as a felon, appealed, and the U.S. Court of Appeals for the Eighth Circuit affirmed. The district court initially denied Jones’s motion to vacate his sentence because it was illegally imposed. Still, the Eighth Circuit reversed, resentencing him on one count of possessing a firearm as a felon instead of two. Jones filed for a second habeas petition on account of a new interpretation of criminal stature, but it was dismissed. 28 U.S.C. § 2255 does not allow a prisoner asserting a change in criminal statute to bypass AEDPA’s restrictions on second filings of a habeas petition, and according to §2255(e), must challenge their sentences in the sentencing court. [15]

 Prisoner Affected by Jones v. Hendrix Ruling

Following the ruling of Jones v. Hendrix, many prisoners were negatively affected, including a man named Samuel Hogsett. Samuel Hogsett is currently incarcerated for a 30-year sentence for multiple felonies: possession of a firearm, possession with intent to distribute 0.5 grams of crack cocaine, and possession of a gun in the interest of a drug-trafficking crime. [16]

The new felonies resulted in Hogsett having three or more violent felonies, classifying him as an Armed Career Criminal. Being a Armed Career Criminal meant he would have had to serve a sentence between 15 years to life for his firearm possession charge. [17] However, in 2021, the criminal stature of a violent felony was narrowed in the U.S. Supreme Court’s ruling in Borden v. United States. [18] Before the decision of Jones v. Hendrix, Hogsett assumed he would no longer be classified as an Armed Career Criminal, thus qualifying for release, since one of his previous convictions no longer qualified. But after the Jones v. Hendrix ruling, Hogsett was barred from filing a second habeas petition and was sent to the lower courts to dismiss his case. [19]

Supreme Court Arguments in Defense

The Supreme Court rooted its reasoning in a lack of subject matter jurisdiction and on the count that §2255(e) does not allow prisoners to find a way around the AEDPA’s restrictions. AEDPA restricts a second or successive §2255 motions by filing a habeas petition (§2241). Jones attempted to argue that the ‘savings clause’ in §2255 uses present tense words, meaning that §2241 is available whenever a prisoner cannot file a §2255 motion. [20]However, this was rejected due to AEDPA’s changes that prevented §2241 from being available at any time. Jones then argues that denying him a §2241 claim is unconstitutional, which Chief Justice Marshall claims is false because a habeas court has no power to re-examine the charges for which it was delivered based on Ex parte Watkins, 28 U.S. 193 (1830). [21] Thus, every argument against his barring of habeas petition was unpersuasive, resulting in the majority (6-3) ruling against Jones. The Jones v. Hendrix ruling and establishing §2255 aimed to alleviate the burden on the courts since they were overwhelmed with habeas petitions. [22] The Supreme Court’s solution to the exceedingly high number of habeas petitions was to have the prisoners seek review in the sentencing courts. [23] Thus, the result of §2255 only allows prisoners to file habeas petitions for “unusual circumstances,” creating barriers for prisoners seeking relief from the sentencing court. [24] 

Conclusion

The Jones v. Hendrix ruling brings to light ongoing issues regarding the writ of habeas corpus and its limitations negatively impacting incarcerated individuals, starting in 1996 with the Antiterrorism and Effective Death Penalty Act, going into 2006 with the Military Commissions Act, and to the new ruling. The writ of habeas corpus is narrowing, impacting prisoners and even barring them from filing a habeas petition. In the past, anyone incarcerated in federal prison could file a habeas corpus petition once the conviction was finalized. The new ruling, even though it aids the Supreme Court, does not aid prisoners. If a prisoner forfeits his freedom by challenging his conviction once before, then actions should be taken to allow prisoners greater habeas petition opportunities than just one time.

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Sources

1. . Jones v. Hendrix. Thomas, Clarence. (2022)

2. Habeas corpus | Wex | US Law | LII / Legal Information Institute.” 2022.

3. Naylor, Chris. “You have the body": Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820-1863.”

4. Gregory, Anthony. The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror. Cambridge: Cambridge University Press, 2013.

5. Rehnquist, William H. n.d. “Securities and Exchange Commission v. Sloan.”

6. Ibid.

7. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” 2022.

8. Ibid.

9. Legal Information Institute, ‘habeas corpus. 2024.

10. Statement on Signing the Detainee Treatment Act.” n.d. Teaching American History.

11. Ibid.

12.  Kennedy, Anthony M. Boumediene v. Bush. (2007)

13. Naylor, Chris. “You have the body": Habeas Corpus Case Records of the U.S. Circuit Court for the District of Columbia, 1820-1863.”

14. Jones v. Hendrix. Thomas, Clarence. (2022)

15. Ibid.

16. Weill, Elizabeth, Meg O'Connor, and Aja Arnold. “Supreme Court Jones v. Hendrix Ruling is Hurting Innocent People.” (2023)

17. Ibid.

18. Kagan, Elena. “Borden v. United States.” (2020)

19. Ibid.

20. Jones v. Hendrix. Thomas, Clarence. (2022)

21. Ibid.

22.  Harvard Law Review. “Jones v. Hendrix.” (2023)

23. Ibid.

24. Ibid.

Letter From the Editor

June 2024 | Annie Vong (Editor-in-Chief)

Dear Esteemed Reader,

I’m Annie Vong, and I served as Editor-in-Chief of UNLV’s Undergraduate Law Review during the 2023-2024 academic year. Having passed the torch to another dedicated student, I wanted to express an infinite amount of gratitude for everything and everyone in this club has taught me.

I first joined ULR in July 2021, after I had finished a year of online classes due to the pandemic. It seemed like every other club was struggling to stay alive, but ULR was thriving in an online format. With busy lives and work schedules, we all found time to meet each other and read each other’s drafts. 

When I first joined, I wasn’t the best staff writer or researcher. Over time, the more articles I wrote, the more I read articles by stellar writers in this club, and the more advice I learned from senior members of this club, I improved so much. I learned how to transform confusing legal jargon into something that was understandable to an everyday audience, which is an invaluable skill that I now use while reporting for local newspapers. 

When I was Editor-in-Chief, I made it a mission to clarify the admission process for students, to get law students to offer advice, to have LSAT resources available for free to students who needed it. 

This club, to me, represents the hard work of so many students who are the first in their families to get a bachelor’s degree, let alone being the first in their families to apply for law school. I’ve never seen this level of professionalism and dedication among undergraduate students, who are jumping into the unknown by choosing this career path.

It’s hard to say goodbye, but I also can’t wait to see how each generation of leadership takes and transforms this club.

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Garland v. Cargill: What Is A Machine Gun, Anyway?

July 2024 | Yong Qin Xu (Staff Writer)

When an average person is asked to picture a courtroom, what are they likely to see? Sharp-dressed attorneys and wisened judges revealing shocking twists and turns within an ever-growing labyrinth of evidence while an anxious defendant’s life hangs in the balance? The truth is, courtroom trials in real life are often far different from what’s presented to us through video games or prime-time TV, and a lot of these life-changing cases more often than not boil down to arguments over the definitions of certain terms and phrases rather than the constant revelations of mind-blowing plot twists. For example, what is the definition of a weapon? Can someone’s fists or a piece of rope be considered a weapon if they’re used to harm another? Questions like these may seem ridiculous and their answers obvious, but in cases involving aggravated assault, whether or not the suspect used a weapon can significantly alter what sorts of punishment they’re eligible to receive. In such cases, defining what “a weapon” actually means cannot be more important. Therefore, any court decision in which the definition of a term is legally changed via precedence can have potentially earthshaking implications. Garland v. Cargill is one of such cases, and its final decision changed the world of American firearms regulation forever.

In 1934, Congress passed the National Firearms Act, aimed at restricting civilian access to “gangster-type” weapons such as machine guns and sawed-off shotguns. [1] Within this law, a machine gun was specifically defined as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” [2] In other words, if a gun fires more than one shot with a single pull of the trigger by any means or mechanism, then it’s to be considered a machine gun. The law explains that “the term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun” [3] is legally a machine gun. This definition essentially specified that any extra parts or modifications which can turn a non-machine gun into a machine gun would also be legally qualified as machine guns.

As years turned to decades, the definition of a machine gun remained relatively well-understood and unaltered, but all of that changed in 2017. Shortly after the mass shooting incident at the Mandalay Bay Resort & Casino in Las Vegas, Nevada, the definition of what a machine gun is suddenly became a hot subject of contention. Based on the ATF’s investigations, the Mandalay Bay shooter killed 58 people using a vast arsenal consisting of 24 weapons, 12 of which were outfitted with bump-stocks. [4] A bump-stock is a piece of recoil-compensating accessory capable of “bouncing” a gun forwards off of user’s shoulder after a shot is fired, thus pushing the gun’s trigger into its user’s finger and allowing them to continuously fire more shots without any further movements beyond the initial trigger-pull. [5] Under the original National Firearms Act, bump stocks were not considered as machine guns or as components capable of creating machine guns. However, this ruling came into question following the Mandalay Bay shooting because several eye-witnesses of the event described the gunshots as “gradually getting faster” and “sounding like they came from an automatic weapon.” [6] Given the massive casualties caused by this shooting and its perpetrator’s possession of several bump-stocks, then-president Donald Trump formally requested his Attorney General to dedicate all available resources towards banning devices with the capability to modify legal firearms in such a way that they resemble banned machine guns. [7] Following the rulemaking procedures allotted in section 553 of the Administrative Procedure Act, the Department of Justice was able to include bump-stock devices into the definition of machine guns as specified in the original National Firearms Act, thus effectively banning their transfer and manufacturing for civilian use. [8] It’s worth noting that Congress was not directly involved in this rule change. 

The Garland v. Cargill case that overturned this rule change began in the Fifth Circuit Court of Appeals after a man named Micheal Cargill was made to surrender the bump-stocks under his ownership. When the rule first changed, Cargill surrendered the bump-stocks in his possession without much incident. However, in January of 2023, he filed an appeal against the ATF’s demands for him to do so. The appeal primarily argued that bump-stocks are not in fact machine guns by the definition of the National Firearms Act, but also that even if they were, the Department of Justice and the ATF should not have the right to change the scope of a law without Congress. [9] The appeal acknowledged that the main reason the ATF changed its ruling on bump-stocks was because of the Las Vegas shooting, but stressed the fact that bump-stocks were not the only firearm-enhancing accessories the shooter possessed. Additionally, the appeal used the National Firearms Act’s own definitions of a machine gun against itself to argue that bump-stocks cannot be machine guns because they do not affect how many bullets are fired with a single mechanical function of the trigger. [10] The shooter can still technically only fire one bullet with one trigger-pull, he would simply be doing so a lot faster than he would be able to unassisted, seeing as he would not need to move his finger but instead only has to maintain forward pressure on his weapon. In other words, Cargill’s appeal argued that bump-stocks are not machine guns according to the National Firearms Act because bump-stock enabled guns still only fire one bullet per “single function of the trigger,” which means they do not match the first definition of a machine gun given by the law. 

Cargill’s appeal reached the Supreme Court of the United States in November of 2023, was argued in February of 2024, and finally decided upon in June of the same year. [11] The final decision reached for the case, as authored by Justice Clarence Thomas, generally agreed with the arguments presented in Cargill’s initial appeal. Essentially, because a bump-stock does not alter the fundamental trigger mechanism of any gun it’s attached to, it cannot allow a gun to fire more than one shot per trigger-pull if it’s already a law-complying non-automatic weapon prior to the modification. Every shot fired by the gun still requires an ongoing manual input from the shooter, even if it’s simply the act of maintaining forward pressure on the gun to take advantage of recoil, so a bump-stock enabled gun would not qualify as a machine gun under the National Firearms Act’s definitions. [12] Justice Samuel Alito concurred with Justice Thomas’ decision, claiming that the National Firearms Act does not have the ability to ban bump-stocks in its current state because bump-stocks cannot be included in its definitions of a machine gun, and it can only be amended by Congress to allow for such definitions. [13] In other words, Justice Thomas agreed with the first argument of Cargill’s appeal and Justice Alito agreed to the second one.

The dissenting opinion against Cargill was written by Justice Sonia Sotomayor, who argued that “maintaining forward pressure to take advantage of recoil” does not actually count as conscious manual input from the user of a given firearm to pull the trigger. Since guns generally cannot fire themselves without human action, a “single function of the trigger” should measure the amount of human movements made to pull the trigger instead of simply how many times the trigger was mechanically pulled. [14] Justice Sotomayor essentially argued that as far as the average person’s understanding of the act of pulling a trigger goes, bump-stocks still allowed multiple shots from one pull of the trigger, but in the end, Justice Thomas’ opinion won out and Cargill’s appeal was ruled in his favor.

The Garland v. Cargill case may seem like an almost meaningless argument over a technicality at first. After all, Cargill already surrendered his bump-stocks, and whether or not this one specific gun accessory was taken away from people should not in any way stop them from ending lives with firearms. Yet, this case serves as a perfect demonstration of just how important specific language can be to the field of law. The entire disagreement in the Garland v. Cargill case basically boiled down to what a “single function of the trigger” meant and whether it measured a human movement or a mechanical one. This one seemingly minute detail alone could decide the validity of an entire legal ruling, and all it took was one man to notice this fact. In the end, it would seem that the act of pulling a trigger was ruled as a mechanical movement, which may have a negative impact on future gun control related ruling as the law’s definitions sway away from human agency. Ironically, the idea that “guns don’t kill people, people kill people” was used as part of the dissenting argument in favor of gun control in this case, the political implications of which remain to be seen.

---

Sources

1. Greg S. Weaver, “Firearm Deaths, Gun Availability, and Legal Regulatory Changes: Suggestions from the Data,” Journal of Criminal Law and Criminology 92, no. 3 (2002)

2.  National Firearms Act, 26 U.S.C. ch. 53 § 5845 (1934).

3. Ibid.

4. Stefan Becket, “More details revealed about Las Vegas shooter's arsenal of weapons.” CBS News, October 4, 2017.

5.  Garland v. Cargill, 602 U.S. __ (2024)

6. Mia Romano & Dru Stevenson, “Litigating the Bump-Stock Ban.” Kansas Law Review 70, no. 243 (2021)

7. Ibid.

8. Mia Romano & Dru Stevenson, “Litigating the Bump-Stock Ban.” Kansas Law Review 70, no. 243 (2021)

9.  Garland v. Cargill, 602 U.S. __ (2024)

10. Ibid.

11. "Garland v. Cargill." Oyez. Accessed July 21, 2024.

12. Ibid.

13. Ibid.

14. Ibid.

Fischer v. United States: Evaluating Sarbanes-Oxley in Non-Corporate Applications

July 2024 | Madeline Krieger (Staff Writer & Editor)

Introduction

On a chill December evening in 1773, a group of Boston revolutionaries boarded a merchant ship, dumping over three hundred chests of tea overboard in an act of defiance against British taxation. [1] While the Boston Tea party was immortalized in the American mythos, it would be only the first of many protests in America’s history, from the Stonewall riots to the Vietnam War demonstrations, to shape freedoms and  politics. However, while the First Amendment protects the right to assemble and “petition the Government for a redress of grievances,” it does not vindicate acts of violence and civil disobedience. [2]

The events of January 6th, 2021 were an unprecedented blurring between protest and insurrection, as rioters stormed the Capitol building in a violent attempt to interfere with the electoral vote count. [3] Rising tensions between the Democratic and Republican parties had led to volatile distrust in the validity election’s outcome— distrust that would fuel the mob that descended on the Capitol. [4] Joseph Fischer, a former police officer, was among these protestors and was arrested for disorderly conduct and assault of a member of law enforcement. [5] While Fischer would be punished for these charges, he would challenge the initial application of the 2008 Sarbanes-Oxley Act to his case. Sarbanes-Oxley, which could have expanded the government’s ability to criminalize obstruction of official proceedings, would be heavily contested as a threat to First Amendment freedoms. [6] The Supreme Court’s ruling in favor of Fischer affirms American cultural emphasis on the right to protest, limits how future insurrectionists can be punished, and follows a recent trend of limiting expanded powers. 

Context and Cases “Otherwise” Relevant

The Sarbanes-Oxley Act was Congress’s response to the accounting scandals of the early 2000s, which were catalyzed by corporations fabricating information about their debts to investors. [7] The ensuing financial crisis led Congress to enact policy that would require more accountability and criminalize falsely reporting audits. In addition to improving financial transparency, Sarbanes would outline punishments for tampering with “any record, document, or tangible object with the intent to impede, obstruct, or influence” government proceedings, as shown below in §802. [8]

§1512 would later restate §802’s criminalization of evidence tampering, but would separate the “intent to to impede” phrase into its own line, preceded by the words “or otherwise." [9]

This slight adjustment of phrasing would create ambiguity about whether Congress had intended for c(2) to stand on its own— something Fischer would contest in his trial twenty years later. However, Sarbanes-Oxley would actually first be applied in a non-corporate setting in the 2014 case Yates v. United States. 

Oleta Yates was a fishing captain charged with destruction of evidence after dumping illegally undersized fish overboard, despite being instructed to take them to a dock by a federal agent. [10] Yates would challenge his conviction under §802, arguing that Sarbanes-Oxley was only intended for financial and corporate applications. The Supreme Court would rule in his favor later that year, establishing that §802’s use of the phrase “tangible object” referred only to “objects used to store information, such as computer hard drives, not fish.” [11] While Fischer v. United States would focus more on the breadth of §1512, Yates set a precedent for a more narrow, context-bound application of Sarbanes.

Miller v. United States would precede Fischer’s case as one of the first trials in the January 6th proceedings to consider Sarbanes-Oxley as well. [12] Garret Miller believed that §1512(c)2 was irrelevant to his prosecution, arguing that he had not damaged evidence or participated in a protest with corrupt intent. [13] Miller claimed that c(2) required the  requisite of c(1) and that even if c(2) was read on its own, his actions did not constitute interference with an official proceeding. The District of Columbia District Court would rule that the electoral vote count was an official proceeding, but acknowledged that the phrase “or (2) otherwise” made it unclear how c(2) should be applied.  [14]

 Judge Carl Nichols would rule in favor of a non-inclusive interpretation, citing the 2008 Supreme Court Case Begay v. United States. [15] Begay considered the definition of “violent felony” under a law that defined it as an act that involves “burglary of a dwelling, arson, or extortion… use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” [16] The Supreme Court ruled that the first half of the definition was a prerequisite and that other behavior not specifically listed was not a felony even if it led to risk of injury. [17] Judge Nichols would apply this ruling to Miller’s case and affirm that the use of “or otherwise” in Sarbanes-Oxley did not make c(2) a standalone section. [18]

Fischer’s Initial Prosecution and Appeal

During his initial trial at the District of Columbia District Court in March 2022, Fischer would claim that §1512 was unconstitutionally broad and did not apply to the scope of his actions. [19] The section opens with the phrase “whoever corruptly,” a somewhat subjective requisite for intent that gives judges discretion in evaluating what types of protest constitute disruption of justice.  Ruling that Sarbanes-Oxley §1512c(2) criminalizes any form of interference with official proceedings would be a broad interpretation that could overlap with First Amendment rights to political protest. Fischer would ultimately be prosecuted for obstructing law enforcement, but Judge Nichols would again rule for a narrow interpretation of §1512. [20] Nichols argued that Sarbanes-Oxley could not be applied because Fischer had not destroyed evidence, despite interfering with the electoral vote count. [21] This decision would later be appealed in April 2023, and Nichols’ ruling would be overturned by Florence Pan, the Appellate Circuit Judge.  [22]

The Appeal Court noted that Begay could not be used as precedent, because the definition of a felony was structured differently than Sarbanes. Pan argued that §1512’s sections sit within a “separately numbered subparagraph,” putting each section “visually on an equal footing and indicat[ing] that they have separate meanings.” [23] To support this interpretation, the Court also referenced Loughrin v. United States, which established that “two clauses [that] have separate numbers, line breaks before, between, and after them, and equivalent indentation” have independent meanings. [24] While Pan would acknowledge that there was no precedent to use Sarbanes to prosecute crimes that did not involve evidence tampering, he opposed Fischer’s argument that the act’s interpretative room was unconstitutionally broad. [25] Fischer would go on to submit a writ of certiorari later that year, which would be approved in December 2023. [26]

April 2024 Supreme Court Oral Arguments

The Supreme Court would hear Fischer’s oral arguments on April 16th, 2024 and consider the issues addressed by both the district and appellate courts. [27] Fischer’s legal team was primarily questioned about Congress’s intent for applications of §1512(c)2 if not to create a broader application for (c)1. [28] Justice Kagan would argue that there were “multiple ways in which the drafters of c(2) could have made it clear that… [it] operate[s] only in the sphere of evidence spoliation.” [29] On its own, §1512c(2) makes no reference to evidence and does not seem to be constructed as a subsequent of c(1), as Justice Barrett would claim. Barrett posits that if c(2) was meant to be read with the inclusion of c(1), it would have been written as “otherwise obstructs, influences, or impedes any official proceeding with the intent to impair the object's integrity or availability for use in an official proceeding.” [30] Despite the awkward phrasing, had Sarbanes-Oxley been constructed in this way, it would have been more clear that c(2) was not intended to serve as a catchall. Justice Alito also noted that there had been some dissatisfaction between the judges who had decided the Begay vs. United States case. Alito said that he was “not a fan” of the decision that had been reached and was hesitant to apply it as precedent for Sarbanes.

Solicitor General Elizabeth Prelogar, however, would speak in favor of Fischer during the second oral argument. Along with Justice Roberts, she would share concerns about the breadth of c(2) if read on its own. Prelogar considered §1512’s structure and noted that it “[didn’t] look like the typical kind of statutory phrase that consists of parallel list of nouns.” [31] The semicolon separating c(1) and c(2) convolutes §1512’s structure, making it unclear if the two sections are meant to be read as part of the same list. Justice Roberts would also consider the potential issue in the broad phrasing of “obstructs, influences, or impedes” in c(2). [32] Prelogar considered multiple situations where someone might influence a proceeding, like protesting in a courtroom or blocking government vehicles during a protest. While these actions might not be clearly protected by the first amendment, it would be difficult to determine if they had the “corrupt” intent Sarbanes requires. [33] Even if Fischer’s actions in the January 6th insurrection were deemed corrupt, the Court acknowledged the potential significance of extending the reach of Sarbanes through this case. 

June 2024 Supreme Court Ruling and the Potential of Relabeling Corruption as Protest

On June 28, 2024, the Supreme Court ruled with a 6-3 vote that Fischer could not be prosecuted under Sarbanes-Oxley. The ruling acknowledged that the purpose of c(2) was to clarify that actions not specifically mentioned in c(1) were illegal, but that it’s unclear how broad c(2) was meant to be. [34] The majority opinion would cite United States vs. Williams, a case that established that sections of a law should be interpreted in concordance with the breadth of the sections around it. Sinice c(1) is intentionally specific with its relevance to evidence, the Court also reaffirmed Begay’s non-inclusive interpretation of the phrase “or otherwise.” [35] The Court would conclude that if c(2) was meant to be a catchall for all forms of obstruction, Congress wouldn’t have given specific examples and punishments in c(1). 

The dissenting opinion, which was written by Justices Barret, Sotomayor, and Kagan, criticized this limited interpretation of Sarbanes-Oxley. The Justices argued that the words “obstruct” and “impede” in c(2) were intentionally broad and written as a catchall. [36] While c(1) was meant to outline punishments for impeding official proceedings through evidence destruction, c(2) was framed to address impeding through any other means. [37] Barret, Sotomayor, and Kagan would specifically question why c(1) would “give examples for other forms of obstructing proceedings” if it was written only to criminalize evidence tampering. [38]

This ruling follows some of the Supreme Court’s recent decisions in cases like Dobbs and Chevron to limit the powers of the federal government. However, the immediate impacts of Fischer’s outcome are reassuringly minimal, since only  twenty four percent of other January 6th defendants were initially tried under Sarbanes-Oxley to begin with. [39] Furthermore, the majority of these defendants were found guilty of other charges, demonstrating that the Court’s ruling in favor of Fischer was not inherently confinement.  [40]

This case ultimately establishes that  Sarbanes-Oxley’s application in future cases will be explicitly evidence-related, not that insurrections will be seen as constitutionally protected forms of political protest by the courts. However, this significance could be exaggerated through a partisan interpretation. The events of January 6th are reflective of national political divides and distrust of the Supreme Court extends further than concerns raised by its conservative majority. Narrowing the scope of how criminals like Fischer can be prosecuted could also be seen as a right-wing victory and encourage future extremists into relabeling corruption as protest. The outcome of Fischer v. United States exacerbates tensions if seen as a partisan victory, despite the legal impact it holds on its own.

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Sources

1.  “Boston Tea Party Timeline.” National Parks Service, n.d.

2. “U.S. Constitution - First Amendment.” Constitution Annotated, n.d.

3.   Jonathan Katz, Lily Conway, et al. “The January 6 Insurrection: One Year Later.” Brookings, 2 Aug. 2022.

4. Ibid.

5. Howe, Amy. “Jan. 6 Defendant Asks Supreme Court to Throw out Obstruction Charge.” SCOTUSblog, 17 Apr. 2024.

6.   Golde, Kalvis. “Fischer v. United States.” SCOTUSblog. Accessed July 21, 2024.

7.  “Sarbanes-Oxley Act.” Legal Information Institute, Legal Information Institute.

8.  Office of the Federal Register, National Archives and Records Administration. "Public Law 107 - 204 - Sarbanes-Oxley Act of 2002". Government. U.S. Government Printing Office, July 29, 2002.

9. Ibid.

10.  “Yates v. United States, 574 U.S. 528 (2015).” Justia Law, n.d.

11. Ibid.

12.  “Yates v. United States, 574 U.S. 528 (2015).” Justia Law, n.d.

13.  Ibid.

14.  United States v. Fischer, 2022 District of Columbia District Court. CRIMINAL ACTION 1:21-cr-00234 (CJN)

15. Ibid.

16.  Begay v. United States.” Legal Information Institute, Legal Information Institute,

17.  Ibid.

18.  United States v. Fischer, 2022 District of Columbia District Court. CRIMINAL ACTION 1:21-cr-00234 (CJN)

19.  Ibid.

20.  Ibid.

21.  Ibid.

22.  United States v . Fischer, 2023 United States Court of Appeals, District of Columbia. United States v. Fischer. No. 22-3038.

23. Ibid.

24. Ibid.

25. Ibid.

26.  Golde, Kalvis. “Fischer v. United States.” SCOTUSblog,

27.   Transcript of Oral Argument, Fischer v. United States (23-5572). United States Supreme Court.

28. Ibid.

29. Ibid.

30. Ibid.

31. Ibid.

32. Ibid.

33. Ibid.

34.  United States v. Fischer. June 2024 Supreme Court of the United States. No. 23–5572.

35. Ibid.

36. Ibid.

37. Ibid.

38. Ibid,

39.  Ryan Goodman, Mary B. McCord. “The Limited Effects of Fischer: DOJ Data Reveals Supreme Court’s Narrowing of Jan. 6th Obstruction Charges Will Have Minimal Impact.” Just Security, June 28, 2024.

40. Ibid.

U.S. v. Daren W. Phillips: Search and Seizure in the Digital Age

June 2024 | Oscar Cuevas (Editor-in-Chief)

Introduction:

In the digital age, the intersection between privacy rights and law enforcement’s investigatory power presents complex legal challenges, particularly concerning the contents of personal electronic devices. The Fourth Amendment protects individuals against unreasonable searches and seizures. Yet, the parameters of these protections become blurred when differentiating under what circumstances can personal data from digital devices be used as evidence without violating constitutional rights. 

Facts: 

In United States of America v. Daren W. Phillips, [1] Daren Phillips was convicted on charges of possessing child pornography after his former fiancee, Amanda Windes, reported the information to law enforcement. [2] Windes, having suspicions about Phillips, accessed his laptop by resetting the password, and later discovering illegal content. [3] She brought the laptop to the Washoe County Sheriff’s Office.[4] At the sheriff’s office, Detective Gregory Sawyer instructed Windes only to show him the images she had previously viewed, ensuring she did not expand the scope of her initial private search. [5] Phillips entered a conditional guilty plea to possession of child pornography, reserving the right to appeal in the event that his motion to suppress the evidence is denied, which he claimed was derived from an unlawful search. 

Issue: 

Should the evidence discovered on Philips’s laptop be excluded from court proceedings? Phillips contended that the search was unconstitutional, citing the absence of prior knowledge by law enforcement and an illegal search based on intent, as outlined in United States v. Jacobsen, 466 U.S. 109 (1984). [6] Under the Jacobson (1984) ruling, the Supreme Court ruled that the Drug Enforcement Agency (DEA) did not need to attain a warrant for a search (given they had one from a previous, similar search) and, thereby, did not infringe upon the Fourth Amendment’s “search and seizure” clause. Similarly, the “common-law trespassory test” outlined in United States v. Jones (2012) [7] requires suppression in this case, as a private computer is considered a function of personal privacy, and a warrantless intrusion of such would violate the Fourth Amendment. Furthermore, Phillips argued that the search was impermissible because Windes acted as a state agent when she accessed the laptop at the sheriff’s office, and Detective Sawyer could not holistically base his judgment on whether Windes’ had accurately reenacted the initial search. 

Ruling: 

The appellate court mainly relied on precedents set forth in Jacobsen and United States v. Bowman (2000), [8] which provided reasons for evidence being permissible when it is replicated in the presence of law enforcement without exceeding the scope of the initial private intrusion. The panel noted that Windes did act as a state agent, and it was still permissible under the Jacobsen (1984) ruling. The Supreme Court held in Jacobsen (1984) that the FedEx employees’ earlier private search and decision to alert law enforcement to their findings made the agent’s warrantless search permissible. In connection to the Phillips’ case, Windes decided to inform law enforcement of her findings despite obtaining the information without the consent of Phillips. Evidence points to the fact that when Windes accessed the child pornography on Phillip’s computer at the sheriff’s office, she merely mimicked her earlier private search and listened to Sawyer so as not to show him anything she had not already seen. The panel also addressed Phillips’ argument in how Jacobsen (1984) does not apply in this scenario because there are conditions that were not met in this case. These conditions primarily include Sawyer's lack of virtual certainty. In a legal context, "virtual certainty" is a term often used to describe a situation where an outcome or consequence of an action is so likely to occur that it can be confidently expected. This term is particularly relevant in criminal law and tort law to determine liability or culpability. The panel responded that Jacobsen’s “virtual certainty” doesn’t create any subjective requirements, and the language is intended to illustrate an objective test about the scope of the searches. The Supreme Court ruled in Jacobsen (1984) that as long as a government search does not exceed the bounds of a private one, it is, therefore, not an invasion of privacy under the Fourth Amendment. Likewise, Sawyer didn’t learn anything new that had not previously been discovered during Windes’ private search, and therefore, “the search is permissible.” The panel asserted that United States v. Young (2009) [9] didn’t support Phillips' argument regarding “virtual certainty” as to the nature of the content of his laptop. In Young, the government appealed a district court's decision to suppress evidence obtained from Michael Young's hotel room without a warrant, arguing against the district court's finding that the search and seizure violated the Fourth Amendment. The case unfolded when a hotel staff, after mistakenly giving Young a key to another guest's room, entered his room in his absence to search for missing items, discovering a firearm in a backpack but not the items in question. Young, unaware of being locked out or evicted, found his key no longer worked and, upon contacting staff, was confronted by police, leading to his arrest for possessing a firearm as a felon. The appellate court affirmed the district court's suppression, ruling that since Young was not evicted, he retained an expectation of privacy in the room, upholding the decision to suppress the evidence found. In the case of Phillips, compared to Young, it did not involve a warrantless entry into a home or its equivalent; instead, it was a search into his private computer. While Phillips argued that the extensive amount of personal information contained was similar to a private residence, the argument was quickly overruled by Burdeau v. McDowell (1921), in which the validity of this conduct does not depend on the extent of the private information contained in the object or location in which the private party intruded. The last argument was the common-law trespassory test set in Jones (2012) and Jacobsen (1984), in which Phillips argued that if Windes had not previously viewed the files containing child pornography on his computer, it did not give law enforcement the authority to intrude on his property again physically; and contends that his Fourth Amendment rights were violated. The Ninth Circuit Court of Appeals rejected Phillips' argument by pointing out that Jacobsen supports the notion that law enforcement officers didn’t violate the Fourth Amendment when they mimicked a prior private trespass and gathered information. The Ninth Circuit Court also cited United States v. Tosti (2013), [10] where a computer technician uncovered child pornography on the defendant's computer. Law enforcement directed the technician to open and view the images, and the appeals court ruled that it didn’t violate the Fourth Amendment. The appeals court asserted that law enforcement didn’t need a warrant, citing cases that had applied Jacobsen (1984) to warrantless searches of modern digital devices.  

Conclusion: 

The Ninth Circuit affirmed the judgment of conviction, holding that the evidence obtained from Phillips’s laptop was admissible as Windes's actions at the sheriff's office did not exceed the scope of her initial private search. The appellate court also upheld the legality of the challenged conditions of Phillips's supervised release, aligning with precedent that defines the permissible statutory penalty and constitutional boundaries. The only opinion given by District Judge Edward Korman decided to reject all of Philips' objections to using evidence obtained from his computer and the three conditions of his supervised release. This precedent could have consequences for future cases, especially those involving digital evidence. It underscores the legal distinction between private searches conducted by individuals and those carried out by law enforcement, suggesting that evidence obtained from digital devices by private parties can be used by the police without a warrant as long as their investigation does not reveal new information not already exposed by the private search. This could lead to an increased reliance on evidence gathered from digital devices by non-governmental actors, as it affirms the legality of law enforcement using such evidence in their investigations without necessitating a warrant, assuming they adhere strictly to the confines of the initial private discovery. However, more precedent would have to be laid forth in regard to resetting another person’s password. As it constitutes several crimes that include unauthorized access, computer fraud, and identity theft. Law enforcement can access someone’s personal information as part of an investigation, but having probable cause and a warrant would make sure that law enforcement is not in violation of laws designed to protect individuals rights. Furthermore, this ruling emphasizes the evolving interpretation of privacy rights in the context of digital information and technology, indicating a nuanced approach to applying Fourth Amendment protections. As digital devices continue to play a central role in daily life, containing vast amounts of personal information, the implications of this precedent will likely be scrutinized and debated in legal circles and beyond, affecting how privacy, consent, and search and seizure laws intersect in the digital age.

---

Sources

1. United States of America v. Daren W. Phillips, No. 20-10304 (9th Cir. 2022).

2. Ibid.

3. Ibid.

4. Ibid.

5. Ibid.

6. United States v. Jacobsen, 466 U.S. 109 (1984)

7.  United States v. Jones 565 U.S. 400 (2012)

8. United States v. Bowman, 215 F.3d 951(9th Cir. 2000)

9.  United States v. Young F.3d 711 (9th Cir. 2009)

10.  United States v. Tosti (9th Cir. 2013)

The Wolves Who Cried “Unconstitutional”: The Issue of The National Labor

June 2024 | Floyd Velasquez (Associate Editor)

Introduction

Within the last three years, a new wave of organizing for workers’ rights has crashed against corporate doors, with many workers exercising their right to come together and collectively improve their workplace. At Amazon, warehouse workers in Staten Island, New Jersey voted to unionize for the first time two years ago. [1] Earlier this year, more than 400 Starbucks employees voted to form a union. [2] On a more recent note, workers for a Mercedes-Benz plant in Alabama filed to join the United Auto Workers union within the first week of April 2024, marking the union’s expansion to the South. [3] All of these companies’ workers have exercised their rights to collectively organize and bargain – a right bestowed to them under the National Labor Relations Act of 1935. [4] Aside from ensuring these rights be available to workers across the United States, the National Labor Relations Act of 1935 also established the National Labor Relations Board (NLRB) – a government agency designed specifically to enforce employees’ rights and adjudicate their disputes. [5] However, a death sentence may be imposed on almost 90 years of the NLRB’s authority and commitment to workers’ rights as Amazon, SpaceX, and Trader Joe’s have recently come together to raise their swords against the federal agency’s constitutionality. [6]

The National Labor Relations Board and its Father Document

In response to the continued grievances and outbursts of violence that workers faced in the early 1930s, President Franklin D. Roosevelt signed the National Labor Relations Act (NLRA) into law on July 5th, 1935. [7] Within this bill, its author, Senator Robert Wagner, enshrined the pivotal right to strike and unionize, guaranteeing the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining.” [8] In addition, the Act included provisions regarding union elections, bargaining units, and unfair labor practices and their procedure of investigation. [9] Featured as an enforcement mechanism to uphold workers’ rights protected by the NLRA, the Act established the National Labor Relations Board, an independent federal agency whose power lies in defending employees’ rights to organize and seek better working conditions, ensuring the democracy of union elections, and perhaps its most vital role – investigating the violations of unfair labor practices. [10]

The NLRB consists of many arms that serve specific functions to facilitate the investigation and prosecution of unfair labor practices. The NLRB’s 26 regional offices across the country, led by regional directors, investigate and prosecute alleged violations, and are supervised by the general counsel – an individual independent from the Board who is appointed by the President to serve a four-year term. [11] In instances where the issue is not resolved at a regional level, the case is then presented before an NLRB administrative law judge, whose purpose is to hear the case and issue initial decisions, which are subject to review by the full NLRB Board – a quasi-judicial body whose deciding authority is on equal footing with the general counsel. [12] In full, the Board consists of five members appointed by the President and confirmed by the Senate, each serving five-year terms, with the term of one member expiring each year. [13] Should an issue be appealed to the Board, a panel of three members will decide on the case. [14] However, in cases that present novel ideas or hold the potential to overturn precedent, the full Board will meet to hear and decide those cases. [15]

While the NLRB holds an considerable influence when it comes to their decision-making power, the federal agency is just that – a federal agency – in which its purpose is vested in the responsibility to uphold the NLRA, an Act passed by Congress – the institution in which they receive their funding from to fulfill this very duty. It is under this premise that the NLRB’s legitimacy is in question. Can a government agency acting as an extension of Congress, who has the ability to provide legal remedy, do so outside the judicial system laid out by the Constitution?

SpaceX, Trader Joe’s, and Amazon 

The efforts to deprive the NLRB of its power, spearheaded by SpaceX, Trader Joe’s, and Amazon, come after these companies have collectively been charged with hundreds of violations of workers’ rights. Firing pro-union employees, various forms of retaliation against organizing, and bargaining in bad faith are just some of the claims that these companies have amassed. [16] Amazon alone currently has over 400 open or settled cases against their company for unfair labor practices and other violations of workers’ rights. [17] Trader Joe’s, while standing at a smaller scale of 150 open or settled cases against them, has also been charged with unfair labor practices, as well as failing to bargain in good faith. [18] Interestingly, SpaceX’s claims do not originate in violating the right to unionize, but rather the right to “protected concerted activity” in which workers may come together to address issues within the workplace. [19] In an open letter, eight employees raised concerns about the SpaceX workplace, which included complaints regarding social media comments made by Elon Musk – and all eight employees were fired in response. [20]

SpaceX, Trader Joe’s, and Amazon are attacking the NLRB’s constitutionality on multiple fronts. In a recent lawsuit filed on April 19th, 2024 in a federal District Court in Texas, SpaceX alleges that the NLRB’s organizational structure violates Article II of the Constitution. [21] Specifically, SpaceX claims that the NLRB’s administrative law judges – who are “inferior officers” with “substantial authority” – are over-protected from removal, interfering with the President’s right within Article II to oversee and remove subordinate officers who assist the President with ensuring that laws be “faithfully executed.” [22] SpaceX’s complaint claims that they are dually “insulated,” for administrative law judges can only be removed for-cause by officials who themselves are only removable for-cause – leaving no other avenue for a judge’s removal. [23] Essentially, the judges can only be removed for “bad behavior” by the authority above them, who also can only be removed by the same process, and not more accessible mechanisms, such as impeachment. Following in SpaceX’s footsteps, Trader Joe’s echoed the same exact argument during a hearing with administrative law judges. [24] Amazon has become the most recent challenger to the constitutionality of the NLRB, whose legal complaint filed on February 15, 2024, repeated the aforementioned argument and presented additional arguments. Within its filing, Amazon claims that the removal process of administrative law judges, as well as the Board, violate the separation of powers detailed in the Constitution, citing the same violation of Article II of the Constitution as their preceding refuters. [25] Additionally, Amazon argues that the proceedings that the NLRB held denied the company their rights guaranteed under the Fifth Amendment to a jury trial and due process; they argue that NLRB Board members exercise powers of the legislative, executive, and judicial branch simultaneously within their proceedings. [26]

Corporate Personhood

Amazon’s claim (a recycled argument from SpaceX and Trader Joe’s) within their lawsuit against the NLRB that their company has been deprived of the right to due process is cut from a controversial cloth – the legal concept of corporate personhood. While the rights guaranteed under the Bill of Rights are protective of infringements on the rights of American citizens, the notion of “corporate personhood” allows those guarantees to be afforded to corporations as well. [27] The notion of corporate personhood originates in the decision from Santa Clara County v. Southern Pacific Rail Road (1886). [28] While the decision in this case is rather dry – concerning taxes to railroad companies – its importance is tied to housing corporations’ rights under the 14th Amendment to due process and equal protection under the law. Chief Justice Morrison Waite states, “The Court does not wish to hear argument on the question [of] whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of the opinion that it does.” [29]

Corporate personhood received legal expansions later down the line, where the case of Citizens United v Federal Election Commision (2010) resulted in a decision that protected corporations’ political spending as free speech under the First Amendment, and again in Burwell v. Hobby Lobby Stores (2014), where the Supreme Court held that companies are allowed to deny contraceptive health coverage on religious objections of the company’s owners. [30]

Amazon’s implication of corporate personhood – and therefore SpaceX’s and Trader Joe’s – is a notable example of the power in which corporations presently wield, which the strategy to weaken the NLRB’s decision-making power would significantly fuel.

NLRB: A Piece of a Bigger Puzzle

SpaceX, Trader Joe’s, and Amazon’s attempt to topple the constitutionality of the NLRB is not a new legal strategy; similar tactics were used when employers made efforts to defy the constitutionality of the National Labor Relations Act after its passage in 1935. [31] However, these companies’ arguments raised against the NLRB are a part of a more concerning whole.

Aside from reverberating the same claims reflected in complaints filed by SpaceX and Trader Joe’s, Amazon argues that its cases filed against them should be dismissed, as they invoke the new “Major Questions” doctrine. [32] The “Major Questions” doctrine, a legal principle expressly used for the first time in West Virginia v. EPA (2022), prohibits federal agencies from deciding on questions of “vast economic and political significance” without authorization from Congress. [33] Through invoking this doctrine, Amazon proclaims that the NLRB’s administrative rulemaking authority, within its proceedings on retaliation against unionized workers, are deciding on issues that are outside of their jurisdiction – as it is a subject matter that holds a significance too crucial for them to decide.

 If SpaceX, Amazon, and Trader Joe’s arguments against the NLRB are accepted by the courts, it leaves a potential for future NLRB decisions to be challenged by those similarly-aggrieved to Amazon under the “Major Questions” doctrine, dampening the authority of the NLRB. Additionally, it creates an example for other companies to follow in pursuit of subverting other government agencies, and a substantial precedent for companies to doubt the validity of other agencies’ decisions, or question the legitimacy of their respective administrative judges. 

However, the most devastating consequence would lie in the loss of an avenue for workers’ rights. Should the courts rule in agreement that the NLRB lacks constitutional authority, its deciding body would be rendered obsolete – removing the sole safeguard for the right to unionize, and eroding a mechanism for justice in the workplace that has been in place for almost 90 years. Should the efforts put forth by SpaceX, Amazon, and Trader Joe’s leave the NLRB powerless, not only would the growing labor rights movement be stymied, but the decision would communicate a clear message on where companies stand – in protection only of themselves.

---

Sources

1. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.” Economic Policy Institute.

2. Ibid

3. “Mercedes Workers at an Alabama Plant Call for Union Representation Vote.” AP News,

4. “1935 Passage of the Wagner Act.” National Labor Relations Board.

5. Ibid.

6. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

7.  “National Labor Relations Act (1935).” National Archives and Records Administration.

8. “National Labor Relations Act.” National Labor Relations Board.

9. Ibid.

10. Ibid.

11.  “Introduction to the NLRB.” National Labor Relations Board.

12. “Decide Cases.” National Labor Relations Board.

13. Ibid.

14. Ibid.

15. Ibid.

16. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

17.  “Case Search | National Labor Relations Board.” National Labor Relations Board.

18. Ibid.

19. Rhinehart, Lynn, and Celine McNicholas. “What’s behind the Corporate Effort to Kneecap the National Labor Relations Board?: Spacex, Amazon, Trader Joe’s, and Starbucks Are Trying to Have the NLRB Declared Unconstitutional-after Collectively Being Charged with Hundreds of Violations of Workers’ Organizing Rights.”

20. Scheiber, Noam. “SpaceX Illegally Fired Workers Critical of Musk, Federal Agency Says.” The New York Times.

21. Space Explotation technologies Copr v. NLRB, et al.

22. Ibid.

23. Ibid.

24. Roscoe, Jules. “U.S. Corporations Are Openly Trying to Destroy Core Public Institutions. We Should All Be Worried.” VICE.

25. Roscoe, Jules. “Amazon Joins Elon Musk’s Spacex in Mission to Destroy Federal Agency Protecting Workers.” VICE.

26. Ibid.

27. Pruitt, Sarah. “How the 14th Amendment Made Corporations Into ‘People.’” History.com.

28. Ibid.

29. Ibid.

30. Ibid.

31. Fry, John. “Understanding the Latest Constitutional Attacks on the NLRB .” OnLabor,

32.  Roscoe, Jules. “Amazon Joins Elon Musk’s Spacex in Mission to Destroy Federal Agency Protecting Workers.” VICE.

33.  Joyce, Samuel Buckberry Buckberry. “Testing the Major Questions Doctrine.” Stanford Law School.

The Supreme Court’s Neglected Power Grab: Immigration

February 2024 | Otoniel Ramos (Staff Writer)

The Supreme Court’s deference and Congress’s plenary powers over immigration are contrasted against another power the Court seems intent to claw back: the Chevron doctrine. Chevron U.S.A Inc. v. Natural Resources Defense Council. Inc. (1984) has been a framework of review applied by the courts toward the practices of administrative agencies for nearly four decades. In a case involving the Chevron Oil Company, the Court decided, as a general practice, it would defer to the interpretations of congressional statutes offered by administrative agencies so long as the Court could deem them reasonable. [1] What has this doctrine come to mean? Why do some argue that overturning it represents another Supreme Court power grab, and how can the Court’s recent treatment of it compare to its treatment of immigration deference? The ruling in Chevron needed to answer challenges by environmental groups to an EPA regulation that interpreted the Clean Air Act in a manner that would hamper the goals of the legislation to improve air quality. [2] In a unanimous decision, the Supreme Court upheld the regulation, given the EPA’s “reasonable” interpretation of the specific provision in question. [3] Per the Court, Congress had not laid out a particular intention for the interpretation of the provision, and the policy choice by the EPA was reasonable. [4] What Chevron did was reconceive the “pre-Chevron” view that when Congress enacts statutes, these come with prescriptions from Congress for all questions that may arise. [5] The conceptualization “post-Chevron,” then, has been that Congress actually rarely anticipates these questions, let alone has answers for them, and thus, it is because of Chevron that agencies hold interpretive rights over the questions unanswered by Congress. [6] 

In practice, the Chevron doctrine has led to a shift in power to agencies within the executive branch, but more specifically, given the power to shape environmental policy, for example, to the experts within those agencies rather than their lawyers or the federal courts. [7] [8] Chevron then, representing a broad delegation of interpretive rights to executive agencies, sheds light on why overturning the doctrine would represent not only a shift in power but a taking of power. 

A few relatively recent Supreme Court decisions have indicated the looming overturn of Chevron. One example is Northwest Austin Municipal Util. Dist. No. One v. Holder (2009), where the particular district in question sought an exemption from Section 5 of the Voting Rights Act. [9] Section 5 prohibits “states and political subdivisions with histories of racial discrimination in voting” from enacting changes to their voting procedures without an administrative review from the Department of Justice (DOJ) or the U.S. District Court for the District of Columbia. [10] While the Court did not strike down Section 5 of the Voting Rights Act in this case, it struck a compromise opinion that granted the municipal utility district in question an exemption to the oversight but neglected to address the constitutional issue at hand. [11] This was not the same in Shelby County v. Holder (2013), which challenged a provision within Section 4 of the Voting Rights Act meant to classify the districts requiring administrative oversight under Section 5. [12] The Supreme Court ruled Section 4 of the Voting Rights Act unconstitutional, citing the use of outdated information and asserting that these restrictions presented an unconstitutional violation of a state's power to regulate elections. [13] It is notable that in this case, like in Northwest, the Court demonstrated no willingness to defer to the DOJ’s interpretations despite existing statutory delegations of power. [14]

While these two cases place the looming demise of Chevron into context, more recent Supreme Court history indicates a much broader trend in the Supreme Court’s behavior — a growing willingness to overturn precedent. Decisions like Brnovich v. Democratic National Committee (2021), [15] Dobbs v. Jackson Women’s Health Organization (2022) [16] and New York State Rifle & Pistol Association v. Bruen (2022) [17] all point to an ever-growing lack of judicial restraint. This development itself, albeit not new, is significant given the Court’s early use of judicial restraint to establish itself and its place in American politics. [18] Analyzing early Supreme Court history makes today's scope of its powers difficult to believe. To understand how much its power has grown, it may be helpful to discuss what the Court lacked or was not fully granted at its outset—that being judicial review and judicial sovereignty. [19] [20] With the Supreme Court “biding its time” during the tenure of the three Chief Justices before John Marshall, anticipating a greater role for itself, the themes of both “power grab” and “restraint” become essential for understanding its current place, status, and prestige in American politics. [21] Both Marbury v Madison (1803) and the Dredd Scott v. Sandford (1857) decisions illuminate the intriguing manner by which the Court has sought to grow its influence. [22] The Court’s broad deference over immigration, then, stands as an anomaly, particularly in the context of a court today that has no qualms ignoring deference and overturning precedent.

Immigration Deference 

The Supreme Court’s broad deference in the administration of immigration law, specifically as it pertains to grounds of admission, exclusion, and deportation, begins with Chae Chan Ping v. United States (1889) or the Chinese Exclusion Case. [23] This case provides foundational reasoning to support the proposition that the substantive criteria enacted by Congress concerning admission, exclusion, and deportation are not subject to constitutional limitations. [24] Chae Chan Ping, who had been a long-time resident of the United States and held certificates issued to him that granted permission to return, challenged the constitutionality of an 1888 act preventing Chinese laborers from re-entering the United States. [25] The 1888 law in question was a reflection of the xenophobic animosity held toward these laborers in the state of California; [26] however, in upholding Congress’s power to exclude these Chinese laborers, the arguments provided by Justice Field have served to justify Congress’s plenary power over the enactment of provisions within immigration law. [27]

Those arguments are as follows: first, that the independence and sovereignty of the nation entail its absolute control over the entry of aliens into its territory. [28] Next, the migration of persons from one nation to another may be treated as if it were “a transaction between two governments, governed by extra-constitutional rules.” [29] These assertions have come to imply that immigration control exists as an unenumerated power inherent in the nationhood of any state. [30] The third and fourth propositions laid out by Justice Field are that the “independence and identity of a nation must not be adulterated or overwhelmed by the addition of uninvited aliens” [31] and that “the degree of threat is for the political branches, not the judiciary to evaluate.” [32] The last two arguments are grouped as they refer to the identity of a nation and the threat posed by the influx of migrants as a question to be substantiated by the political branches of government. 

It is relevant to note that while Field believed that the judicially unreviewable powers gave Congress broad authority over the exclusion of migrants, it would be a later case in which he dissented, Fong Yue Ting v. United States (1893). [33] Fong Yue Ting extended Field’s reasoning to give Congress broad authority in setting standards for deportation. Some, however, posit that these arguments signal an “illegitimate judicial move” meant to supersede the interests and claims of individuals and their rights. [34] The question then turns to the legitimacy of this doctrine within a nation that holds a specific obligation to protect individual rights — not only those that may be limited in their application to noncitizens but also rights held by U.S. citizens. 

Field’s contention may well have been that limiting the power of individual interests, and by extension, the ability of courts to undervalue governmental interests, was justified given a perceived inapplicability of Constitutional protections toward noncitizens. However, his argument in the first proposition disregards U.S. citizens' rights, which such broad power may infringe on. The absolute control over the entry of aliens, which Field argues derives from the nation’s independence and sovereignty, treats noncitizens as “guests,” making their permanence or stay here a retractable privilege. [35] Are noncitizens considered guests of the United States or guests of the individual citizens, relatives, or employers whom they have actually come to visit? Does the federal government, then, wielding such broad power over the entrance, treatment, and permanence of these individuals, not hold the potential to trample over a citizen’s freedom of association? [36] Add to this a further incompatibility with current international law standards in which human rights norms, like protections afforded under The Convention Against Torture, [37] may impose broader limitations on a nation’s conduct towards not just its people but noncitizens. [38] With continued adherence to this doctrine, real issues emerge. 

As a consequence of such plenary power, various statutes and government provisions allowing for government discrimination based on ethnicity and political beliefs have been upheld while citing this power. The Court itself recognized in Demore v. Kim (2003) that it endorses “the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens.” [39] Examples of this include upholding a law that discriminated against fathers related by an “illegitimate” child from specific immigration preferences in Fiallo v. Bell (1977), [40] and maintaining laws rendering communists ineligible for visas in Kleindienst v. Mandel (1972). [41]

Among the most notable consequences of this deference have been in the realm of due process. For example, the Administrative Procedures Act (APA), passed in 1946, governed the processes by which federal agencies develop and issue regulations, including the standards for adjudicatory proceedings. [42] In the Immigration and Naturalization Services (INS) exempted itself from the requirements of the APA. [43] The Court established that deportation proceedings were (1) of judicial character and (2) required the INS to adhere to the provisions of the APA, such as the separation of functions for the prosecutor and the hearing officer. [44] What followed was a notable decrease in the number of deportations for Mexican immigrants, dropping from 16,903 in 1949 to 3,319 in 1950. [45] Congress would act quickly to nullify the effects of Wong Yang Sung, granting the INS a carve-out statutory exemption to the APA. [46] The significance of the deference afforded here is that the APA, [47] along with the Freedom of Information Act, [48] and the Constitution, [49] hold a distinct place for the Court when it comes to doctrines like Chevron, and receive de novo review or no deference at all from the Court. [50]

Returning to Field’s third and Fourth arguments, the suggestion is that elected officials, not the courts, should address national identity and immigration concerns. Professor Roger M. Smith argues, importantly, that political leaders often craft citizenship laws (a fundamental national identity and immigration concern) to fulfill two imperatives: fostering a unified national identity and legitimizing their leadership. [51] To accomplish this, they may offer civic ideologies or myths to foster that sense of peoplehood and further embed them in citizenship laws to serve as a “basic source of identity.” [52]

Two issues then arise from the argument that a nation’s citizenship laws and, accompanying it, the construction of a national identity, are not suited for judicial discretion. [53] The first issue is a more normative and political issue that arises from neglecting the dangers of constructing a membership in a political community to create a “peoplehood.” That is not to ignore the value a particular “peoplehood” may have but to recognize that the formation of such is often accompanied by tendencies to treat the community as “natural” and pre-political, usually leading to oppressive internal hierarchies and harsh injustices toward outsiders. [54] The second issue arises from the idea that provisions for citizenship or permanent immigration, like the allocation of membership within a political community, are best resolved democratically through the government’s political bodies and are not suited so much for judicial resolution. This issue, like the first, creates conflict when the allocation or the constraints to citizenship are designed in such a manner as to form a specific racial identity for the country or to favor one religion over another. [55] Such standards would undoubtedly come into conflict with constraints laid out in the Constitution, and it is those same oppressive internal hierarchies and harsh injustices that could find remedy if not for the suspension of normal standards of judicial review brought about by the Court’s deference. [56] 

Final Considerations

The issues discussed above arise from a “political question” doctrine and call into question the deference the Court has adopted. Is the construction of citizenship or the rights of noncitizens within the U.S. strictly a “political question?” Does that categorization justifiably eliminate constitutional rights and limitations on constructing immigration law? How might a “political question” doctrine fare when balancing the real restrictions our nation has consented to through the making of international law? There is clearly a problem with a deference doctrine that the Court has positioned itself as reluctant to overturn for over a century. [57]

Next, take the understanding that both constitutional rights and obligations to obey the law should be grouped together. [58] Often presented as the mutuality of obligation approach, it provides that rights are required to justify legal obligations. [59] This mutuality of obligation doctrine was applied by the Supreme Court in Reid v. Covert (1957), extending to U.S. citizens abroad fundamental due process rights, such as a trial by jury, when the U.S, while prosecuting these citizens, attempted to assert legal obligations over them. [60] That ruling has led to an understanding that the Constitution and its limitations “apply” wherever the government decides to act and that the application of the Constitution and its protections provides the source for the government’s legitimate authority to act. [61] In following this logic, should extending government action or the imposition of legal obligations toward noncitizens not also require the complete application of the Constitution to be deemed legitimate? [62]

Finally, when considering the sufficient personal interests that ought to trigger protection through normal standards of judicial review, we can turn to due process and the debates around what process is “due” once its application in a given case is recognized. Should such a decision follow the same logic surrounding the Court’s deference on immigration? [63] Some might argue that individuals should only be afforded procedures mandated by Congress and nothing more. [64] The proponents of this argument point to the English common law origin of due process and an understanding that the due process or per legem terrae concession in the Magna Carta never overrode parliamentary action. [65] The first case taken to construe the due process clause, Murray’s Lessee v. Hoboken Land & Improvements Co. (1855), rejected the superiority of legislation over common law, making it clear, “the article is a restraint on the legislative as well as on the executive and judicial powers, and cannot be construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.” [66] Yet this is precisely what, until very recent history, the Court allowed Congress to do with immigration, with the Justices in Chae Chan Ping and Fong Yue Ting citing extra-constitutional powers and granting a plenary or “omnipotent” authority to the legislature over immigration to limit the role of individual interests. [67] It is Justice Field dissenting in Fong Yue Ting v. United States (1893) who points to the government's limited delegated powers, citing that the government “takes nothing from the usages or the former action of European Governments, nor does it take any power by any supposed inherent sovereignty.” [68]   

In light of these considerations, the Supreme Court’s deference to legislative authority in immigration, juxtaposed against the foundational principles of due process, underscores a profound inconsistency in the guardianship of individual rights. When Justice Field, in his dissent in Fong Yue Ting, articulates the inherent limitations of government power, he not only contradicts himself and challenges the expansive authority granted to Congress over immigration but reaffirms the principle that the Constitution serves as the safeguard against arbitrary governance. This principle demands that the essence of due process, the Bill of Rights, and the Constitution’s protective reach should not be compromised by legislative will, especially in matters as consequential as immigration. In this context, the Court’s historical deference reveals not just an anomaly in its jurisprudence but a critical departure from its role in upholding the Constitution’s commitment to individual rights.

---

Sources

1. McCloskey, Robert G. 2016. The American Supreme Court, Sixth Edition. Edited by Sanford Levinson. University of Chicago Press. At 250.

2.  Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)

3. Ibid.

4. Ibid.

5.  Elliot, E. D. 2005. “Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law.” Villanova Environmental Law Journal 16 (1): 1 - 19.

6. Sunstein, Cass R. 2019. “Chevron as Law.” The Georgetown Law Journal 107 (6): 1613 - 1683.

7. Elliot, E. D. 2005. “Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law.”

8. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Id at 865.

9. Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 (2009)

10. Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437.

11. Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 (2009)

12.  Shelby County v. Holder, 570 U. S. 529 (2013)

13. Ibid.

14. McCloskey, Robert G. 2016. The American Supreme Court., At 250. 

15. Brnovich v. Democratic National Committee, 594 U. S. ___ (2021).

16. Dobbs v. Jackson Women’s Health Organization, 597 U. S. ___ (2022).

17. New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___ (2022).

18. Lee, Evan T. 2011. “John Marshall and the Inseparability of Action and Restraint.” In Judicial Restraint in America: How the Ageless Wisdom of the Federal Courts was Invented, 1 - 18. OUP USA. 

19.  Marbury v. Madison, 1 Cranch 137 (1803).

20. Sullivan, E. T. 2003. “Judicial Sovereignty: The Legacy of the Rehnquist Court. Book Review Of: Narrowing the Nation's Power: The Supreme Court Sides with the States. by John T. Noonan, Jr.” University of Minnesota Law School Constitutional Commentary:171 - 189.

21.  McCloskey, Robert G. 2016. The American Supreme Court, At 19, Describes constitutional history from 1789 to 1801 as “marking time.”

22. Marbury v. Madison, 1 Cranch 137 (1803) See also Dred Scott v. Sandford, (1857)

23. Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 581 (1889)

24. Law, Anna O. 2010. The Immigration Battle in American Courts. N.p.: Cambridge University Press.

25. Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 581 (1889)

26. Motomura, Hiroshi. 2007. Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States. N.p.: Oxford University Press USA.

27. Martin, David A. 2015. “Why Immigration's Plenary Power Doctrine Endures.” Oklahoma Law Review 68 (1): 28 - 56. 

28. Neuman, Gerald L. 1996. Strangers to the Constitution., At 119 Citing Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 581 (1889)

29. Ibid.

30. Ibid.

31. Ibid.

32. Ibid.

33.  Fong Yue Ting v. United States, 149 U. S. 698 (1893)

34. Hernandez-Truyol, Berta E. 2000. “Nativism, Terrorism, and Human Rights -- The Global Wrongs of Reno v. American-Arab AntiDiscrimination Committee.” Columbia Human Rights Law Review 31, no. 521 (January):

35. Legomsky, Stephen H. 1984. “Immigration Law and the Principle of Plenary Congressional Power.” The Supreme Court Review 1984:255 - 307. At 269.

36.  Neuman, Gerald L. 1996. Strangers to the Constitution., At 121

37. 1465 U.N.T.S. 85, 113; S. Treaty Doc. No. 100-20 (1988); 23 I.L.M. 1027 (1984)

38. Joint Project on the Governing Rules of International Law. 1992.

39. Demore v. Kim, 538 U. S. 510 (2003)

40. Fiallo v. Bell, 430 U. S. 787 (1977)

41. Kleindienst v. Mandel, 408 U. S. 753 (1972)

42. 5 U.S.C. §§ 551–559

43. Ngai, Mae M. 2014. Impossible Subjects: Illegal Aliens and the Making of Modern America - Updated Edition. Princeton University Press. At 88.

44. Wong Yang Sung v. McGrath, 339 U. S. 33 (1950)

45. Ngai, Mae M. 2014. Impossible Subjects: Illegal Aliens and the Making of Modern America. At 88.

46. Ibid.

47.  Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014) (“[A]n agency has no interpretive authority

    over the APA.”).

48. Fed. Labor Relations Auth. v. U.S. Dep’t of the Treasury, Fin. Mgmt. Serv., 884 F.2d 1446, 1451 (D.C. Cir. 1989);

    Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 164 F. Supp. 3d 145, 155-56 (D.D.C.

49.  Emp’r Solutions Staffing Grp. II, L.L.C. v. Office of Chief Admin. Hearing Officer, 833 F.3d 480, 484 (5th Cir. 2016); see also Miller v. Johnson, 515 U.S. 900, 923 (1995)

50. Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006)

51.  Smith, Rogers M. 1997. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven and London: Yale University Press.

52. Krasner, Stephen D. 1984. “Approaches to the State: Alternative Conceptions and Historical Dynamics.” Comparative Politics 16, no. 2 (January)

53.  Baker v. Carr, 369 U. S. 186 (1962).

54.  Smith, Roger M. 1997. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. At 10.

55.  Neuman, Gerald L. 1996. Strangers to the Constitution., At 138.

56. Ibid.

57.  Kleindienst v. Mandel, 408 U. S. 753 (1972),

58.  Neuman, Gerald L. 1996. Strangers to the Constitution., At 98.

59. Ibid.

60. Reid v. Covert, 354 U.S. 1 (1957).

61. Neuman, Gerald L. 1996. Strangers to the Constitution., At 98.

62. Mary Lynn Nicholas, United States v. Verdugo-Urquidez: Restricting the Borders of the Fourth Amendment, 14 FORDHAM INT’L L.J. 267 (1990)

63.  Redish, Martin H., and Lawrence C. Marshall. 1986. “Adjudicatory Independence and the Values of Procedural Due Process.” The Yale Law Journal 95, no. 3 (January): 455 - 505. 

64. Easterbrook, Frank H. 1982. “Substance and Due Process.” The Supreme Court Review 1982:85 - 125.

65. Redish, Martin H., and Lawrence C. Marshall. 1986. “Adjudicatory Independence and the Values of Procedural Due Process.”

66. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856) Id. at 276.

67.  Chae Chan Ping v. U.S. (Chinese Exclusion Case), 130 U.S. 581 (1889) and Fong Yue Ting v. United States, 149 U. S. 698 (1893).

68. Fong Yue Ting v. United States, 149 U. S. 698 (1893)

Juvenile Justice in the United States: A Historical Analysis

February 2024 | Mary Miller (Staff Writer)

Adolescence is the most impressionable period of human life where an emphasis is placed on providing children with guidance and strong values to become law-abiding citizens. [1] However, not all children are afforded the privilege of having strong leaders and mentors, which significantly contributes to delinquent behaviors. [2] Combined with trauma, neglect, and other social factors that increase opportunities for delinquent behavior, it is easy for children to fall into the criminal justice system. Juvenile justice in the United States has historically changed throughout Supreme Court decisions. In fact, the Court has not touched on or spoken up about youth rights since 2016 and has left states to decide the extent of which rights are applied to juveniles. [3] Following the complicated timeline of youth rights through Supreme Court cases presents several arguments on how states approach juvenile justice and what the future looks like for kids who fall into the criminal justice system. 

1. The First Juvenile Court 

Up until 1899, juveniles were not only expected, but subjected to the trials and tribulations of the adult court. In courts’ eyes, there were no differences between the adult mind and the growing mind of an adolescent, saying “... children accused of a crime, and children were charged, jailed, and punished as if they were adults.” [4] However, Illinois changed this perspective by establishing the first juvenile court through legislation. The Illinois Juvenile Court Act of 1899 created a separate court for accused criminals under the ages of sixteen. [5] This was the first piece of legislative reform that changed the focus on delinquent youth from punishment to rehabilitation, affording them additional supportive opportunities like confidential court proceedings. [6] Although this was the first step in the right direction towards reformative juvenile justice practices, significant Supreme Court decisions altered the way that juvenile courts approached youth rights. 

1. Juveniles and Interrogation 

Due process rights and interrogation protections are a prominent issue in juvenile justice that has been historically represented throughout Supreme Court decisions. Prior to these decisions, juveniles were not afforded the same rights as adults facing criminal charges. These decisions acknowledged a need for juvenile protection, guidance, and rehabilitative opportunities. 

1. Kent v. United States (1966)

In 1966, the Supreme Court ruled on Kent v. United States (1966), wherein the petitioner was a juvenile accused of heinous crimes. [7] The District of Columbia Juvenile Court waived their right to decide on the case without a hearing or investigation, forcing the petitioner to be tried in the adult court where he was ultimately convicted and sentenced at the age of sixteen. [8] Recognizing the issue with remitting trials to adult court, the petitioner appealed and the Supreme Court invalidated the waiver. [9] The implications of this case afforded juveniles due process rights usually extended to adults. By requiring that juvenile courts conduct thorough investigations and ensuring that juveniles retain the same due process rights as adults, the Supreme Court established the principle that juvenile cases should be handled with the utmost care and consideration with the same procedural safeguards extended to adults. [10]

1. J.D.B v. North Carolina (2011)

After the 1966 ruling of Miranda v. Arizona (1966) established obligations of law enforcement to afford accused individuals statements of due process rights before interrogation, the Supreme Court was again presented with the application of pre-interview statements in regards to juveniles. [11] The petitioner in J.D.B v. North Carolina (2011) was thirteen years old when he was taken into custody and questioned by police officers without first being informed of his rights outlined in Miranda. [12] Due to law enforcement’s authority and the impressionability of the adolescent mind, the minor confessed and provided a written statement following the interrogation. [13] However, because he was never afforded the understanding of his right to counsel, parent supervision, or other rights established through Miranda warnings, the Supreme Court contended that the child’s age should be applied in the informing of due process rights. [14] Applying a juvenile’s age as a relevant factor in the administration of Miranda warnings further granted youth rights that had only been previously applied to adults and extended interrogation protections. 

1. Juveniles and Sentencing 

The protections of juveniles from excessive punishments that inhibit their rehabilitative efforts have consistently been approached in Supreme Court cases. Specifically, the court has ruled on the applicability of capital punishment and extensive prison sentences given to juveniles. These rulings set a precedent of confusion in regards to how juvenile criminality should be approached following court procedures. 

A. Juveniles and the Death Penalty 

The Supreme Court was first presented with juvenile death penalties in 1988. In Thompson v. Oklahoma (1988), the petitioner was a fifteen year old who was tried in adult court, convicted, and sentenced to capital punishment. [15] However, the court contended that the Eighth Amendment's prohibition of cruel and unusual punishment directly applied to juveniles under the age of sixteen largely due to the reduced culpability and increased impressionability of adolescents. [16] Although this was a significant extension of juvenile justice protections, particularly with regard to the minimum age of capital punishment, this ruling was swiftly altered just one year later. Stanford v. Kentucky (1989) further focused on setting age requirements for juvenile death sentences. [17] However, the Court instead ruled that the applicability of protections against capital punishment through the Eighth Amendment did not pertain to juveniles of the ages of sixteen or seventeen. [18] Therefore, the court established that constitutional protections from death sentences as a “cruel and unusual” punishment did apply to juveniles fifteen and under, but not for ages sixteen to eighteen. [19] This contradicting application of death sentences on juveniles lasted for over a decade, up until Roper v. Simmons (2005) overturned Stanford. [20] In 2005, the Supreme Court ruled that the Eighth Amendment’s prohibition of cruel and unusual punishment did in fact apply to juvenile death sentences, including those of the ages sixteen and over. [21] Roper v. Simmons (2005) opened the door for states to focus on rehabilitative efforts rather than irreparable sentencing of minors and further extended criminal protections to convicted juveniles. 

B. Life without parole 

In 2012, the Court collectively decided on Miller v. Alabama (2012) [22] and Jackson v. Hobbs (2012) [23] as they both pertained to the sentencing of juveniles to life without the possibility of parole. In both cases, minors of the age fourteen were given the extensive punishments and appealed on the same basis as capital punishment, citing the Eighth Amendment's bar on cruel and unusual punishment. [24] In these landmark cases, the Supreme Court concluded that children are constitutionally different from adults, especially in relation to sentencing due to the adolescent mind increase on risk-taking and vulnerability as well as their underdeveloped understanding of consequences. [25] They further concluded that juvenile sentencing requires increased individualized analysis, providing a better opportunity for courts to focus on rehabilitative efforts that juveniles and adults alike had not previously received. [26] Following the ruling of Miller v. Alabama (2012), the Court lastly touched on juvenile sentencing by retroactively extending the previous ruling. In Montgomery v. Louisiana (2016), the petitioner was sentenced to life without parole at the age of seventeen in 1963. Following Miller, he argued for his release or complete resentencing based on his age at the time the crime was committed. [27] The court agreed with Montgomery, requiring states to vacate or reconsider cases where juveniles received sentences of life without parole. [28] As it stands, juveniles are constitutionally unable to receive sentences of life without the possibility of parole given their significant opportunity and potential for rehabilitation. 

Looking Forward 

It has now been eight years since the Supreme Court last ruled on and extended the rights of juveniles. With every decision, the Court has extensively shed light on the importance of differentiating juveniles from adults in the criminal justice system. The historical analysis of juvenile justice emphasizes the importance of consistently evolving and extending juvenile protections within the criminal justice system. 

While progress has been made in the safeguarding of juvenile rights and promoting rehabilitative efforts in the justice system, challenges pertaining to juvenile justice still persist. The eight year gap signals a significant absence of recent decisions advocating and ensuring continued protection of juveniles and advancement of youth justice. As a result, states have significant room to establish and implement their own separate juvenile justice systems, targeting issues like interrogation tactics and sentencing guidelines. This, however, does not create a cohesive application of legal standards and protections for juveniles, undermining their due process rights and creating disparities in the treatment of young offenders. Without further addressing issues in youth justice, there is a significant gap in juvenile justice policies that effectively serve adolescents that fall into the criminal justice system.

---

Sources

1. Steinberg, Laurence. 2014. Age of Opportunity : Lessons from the New Science of Adolescence. Boston: Mariner Books, Houghton Mifflin Harcourt.

2. Ibid.

3. Montgomery V. Louisiana, 577 U.S. 190 (2016).

4. “Illinois Juvenile Court Act of 1899.” Ill. Laws 131–137 (1899).

5.  Ibid.

6.  Ibid.

7. Kent V. United States, 383 U.S. 541 (1966).

8. Ibid.

9. Ibid.

10. Ibid.

11. J. D. B. V. North Carolina, 564 U.S. 261 (2011).

12. Ibid.

13. Ibid.

14. Ibid.

15. Thompson V. Oklahoma, 487 U.S. 815 (1988).

16. Ibid.

17.  Stanford V. Kentucky, 492 U.S. 361 (1989).

18. Ibid.

19. Ibid.

20.  Roper V. Simmons, 543 U.S. 551 (2005).

21. Ibid.

22. Miller V. Alabama, 567 U.S. 460 (2012).

23.  Jackson v. Hobbs, 10-9647 (2012).

24. Ibid.

25. Ibid.

26. Ibid.

27. Ibid.

28. Ibid.

Razor Dividing the Nation: The Texas Border Crisis

February 2024 | Isabelle Graham (Staff Writer)& Yong Qin Xu (Staff Writer)

“Come and take it!” [1] is a historic Texan battle slogan that remains a symbol of defiance in contemporary times. [2] Due to the recent border issues between Texas and the federal government, there have been flags with this slogan lining the US-Mexico border. In 2021, Greg Abbott, the Governor of Texas, ordered razor wire to be placed along the US-Mexico border, but recently, these orders have caused chaos and division in the United States. [3] The current Texas border crisis has become a battle between Texas and the federal government. However, states are beginning to choose whether to side with Texas or the federal government. Threats of secession have manifested from the border crisis. Nevertheless, Texas’ history of independence does not allow them to defy the supremacy of the federal government while it remains in the United States.

 Serious efforts have been and are continuing to be made for Texas to become its own independent state. The region known as Texas today was first settled by Spanish missionaries in 1718, and became open to settlers from the United States following the Revolutionary War and the War of Mexican Independence. However, this influx of Americans into Texas led the territory to stray further from the interests of its then-Mexican government until it declared independence from Mexico in the year 1836, joining the United States. The reason Texas eventually became a US state, then, was that it lacked the military resources to defend itself against the Mexican government and protect its newfound independence. [4] Texas started its statehood by seceding from another nation and even today, its people seem ready to do it again. In June of 2021, the Texas Nationalist Movement successfully drafted and filed House Bill 1359, a piece of legislation meant to allow Texans to vote for independence from the greater United States, and though the bill was ultimately shot down and dismissed, [5] the movement still contains over 620,000 registered supporters out of the 30 million people currently living in Texas. [6] Therefore, when the federal government and the Texan government came into conflict in January 2024, Texas, drawing from history, would likely not back down.

 The recent Texas border crisis began when Governor Abbott became concerned about the federal government’s lack of focus on the US-Mexico border. In March 2021, Governor Abbott started his mission, “Operation Lone Star,” declaring state troopers and the Texas National Guard to place razor wire along the border, hoping to secure the border from undocumented immigrants. [7] However, the border issue has become increasingly controversial due to the 2024 presidential election and historically high numbers of undocumented immigrants crossing the border in recent years. [8] Major issues with the razor wire began on January 12, 2024, when the Texas National Guard stopped border agents from gaining access to the US-Mexico border near Rio Grande. [9] The border agents claimed that they were responding to Mexican authorities in an urgent matter, but Texas claimed they were unaware of the urgency of the situation. The tensions between the federal government and Texas exploded at this point, causing a huge legal and political battle between the entities. Texas and the United States Department of Homeland Security (DHS) had two lower court proceedings in November and December of 2023, however, the government called for an appeal to the Supreme Court on January 22, 2024. In the December proceeding, the Fifth U.S. Court of Appeals chose to support Texas, due to the fact that they sued the DHS on the basis of breaking state trespass laws. [10] However, the federal government argues that federal law overrules state legislation. The lack of clarity on who has jurisdiction over the border and property is why the case was appealed further to the Supreme Court.

At the Supreme Court, the case was ruled in favor of the DHS in a 5-4 decision. There were several reasons as to why the federal government was favored by the law. It was found that federal law “grants Border Patrol agents the authority, without a warrant, to access private land within 25 miles of the international border, 8 U.S.C. 1357 (a) (3).” [11] Therefore, invalidating Texas’ suit against state trespassing laws. In the process of upholding the law, the Court also uses the Supremacy Clause in the U.S. Constitution to support the defendant. It was determined “Under the Supremacy Clause, state law cannot be applied to restrain those federal agents from carrying out their federally authorized activities.” [12] The Constitution protects the authority of the federal government through this clause, so that states can have their own power, while belonging to the nation.

The Supreme Court used several precedents to back up their decision in favor of the DHS. The Court’s precedent included McCulloch v. Maryland (1819), Johnson v. Maryland (1920), In re Neagle (1890), and Arizona v. California (1931). [13] In each of these cases, the Supreme Court decided that the federal law rules supreme over the state law. Specifically, in Arizona v. California (1931), the Court ruled that the state could not impose on a federal construction project, even though it was on Arizona property. Similarly, the federal government has the right to complete federal duties on Texas land. 

This case remains controversial due to how close the decision was. The 10th Amendment of the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [14] The sovereign power of the states is part of why this case was a close decision. This case has caused issues because the Constitution doesn’t explicitly discuss immigration, so it is legally unclear as to whether the states along the border should receive power to govern immigration matters. Although the Supreme Court ruled in favor of the DHS, the current political polarization of America might cause some immigration reforms in the near future. 

Many Republican politicians across the nation have been siding with Governor Abbott’s decisions regarding the US-Mexico border. [15] The legal and political issues that have resulted from the Supreme Court proceeding, led to an introduction of a new bill. Mike Collins, a Representative from Georgia, announced that he would be introducing the “Restricting Administration Zealots from Obliging Raiders Act,” better known as the RAZOR Act, to show support for Texas. [16] This legislation would prevent the federal government from getting in the way of any state’s preventative measures along the border. [17] Since the states are the ones having to deal with the aftermath of increased immigration into the country, they believe that they should have some power in preventing undocumented immigration. The introduction of this new legislation is in support of Texas and border autonomy, which the 10th amendment allows states to be able to do. 

Of course, the RAZOR Act is not where the outside support for Texas ends. On January 25, 2024, a letter was released by the Republican Governors Association condemning the Supreme Court’s decision to allow US border agents to remove the razor wire deployed during Operation Lone Star. The letter was signed by 25 other states including but not limited to the entire former Confederacy of the American Civil War, [18] voicing support for Texas and decrying the alleged tyranny of the Biden administration in its handling of the southern US border. The Texas immigration conflict has placed the United States in a similar position to the Antebellum period of American history, except instead of slavery causing factionalism among the states, it’s immigration. As evidenced by the Civil War, Texas and its supporters would have no legal right to assert their opposition. The 14th Amendment of the U.S. Constitution was added specifically to prevent states from making law that infringed legal rights provided by the federal government while also banning insurrectionists from holding power in the U.S. government. [19]

A better way to analyze the contradiction between state and federal power would be to look at a similar issue — the legalization of marijuana in the United States. As marijuana legalization and the treatment of immigrants overlap, both issues resulted in conflicts between state and national legal rulings. As of February 2024, the usage of marijuana in food and drugs is still illegal in four states but legalized in others. [20] Yet, in terms of federal law, marijuana is illegal and still currently classified as a Schedule I drug with no officially recognized medicinal benefits and the possession, sale, and use of which would result in the highest possible penalties under the law. [21] The reason why this is possible is because local law enforcement agents are allowed to choose to enforce state laws rather than federal laws in the case of a conflict. [22] However, any federal organization and law enforcers would still have to act within the boundaries of federal laws even when they contradict with local state laws. [23] Banks are chartered by the federal government and thus required to obey federal laws as opposed to state ones. Therefore, they cannot interact with businesses that sell federally illegal substances, which means marijuana dispensaries cannot accept credit cards or have business bank accounts with major banks. [24] The federal government can make laws, but the enforcement of the legislation is still up to the states. If individuals and businesses are not explicitly restrained by the federal government via specific charters and licenses, then they will be allowed to operate under state laws even when they contradict with federal regulations. However, problems arise when state and federal law enforcement agents come into direct conflict with one another on the ground, such as when the US Department of Homeland Security went up against Operation Lone Star.

Despite Texas’ rebellious history and the uncanny similarities between its current behavior and the Antebellum era of U.S. history, almost every previous case on the matter of federal vs. state immigration law enforcement seems to lean on the side of federal actions taking precedence over state ones. The Department of Homeland Security can and will rightfully override Texas local law enforcement in their treatment of immigrants crossing the border, but much like the enforcement of anti-marijuana legislation, as soon as these federally-aligned forces leave Texas, there’s nothing stopping local agents from going back to the ways of Operation Lone Star. However, this battle between state and federal control over the border isn’t close to being over. Until there are immigration and international border policies implemented, the lack of clarity on who legally has the right to govern the border, will remain causing conflicts.

---

Sources

1. Burnett, John. 2016. “'Come And Take It': A Texan Symbol Of Defiance For Sale.” NPR.

2.  Ibid.

3. Aldis, Meredith. 2024. “Texas border: Abbott standing ground despite SCOTUS decision siding with feds.” FOX 7 Austin.

4.  History.com Editors. 2024. “Texas.” History.com.

5.  McDaniel, Kirk. 2021. “Inside the movement for Texas independence.” Courthouse News Service.

6.  “Texas Nationalist Movement.” 2024, The Texas Nationalist Movement.

7. “Supreme Court Lets Border Patrol Cut Razor Wire Texas Installed to Stop Migrants.” 2024. The Wall Street Journal.

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. Ibid.

14.  U.S. const. amend. X.

15.  “25 states with Republican governors sign letter supporting Texas in border control fight: What to know.” 2024. USA Today.

16. “Collins Unveils RAZOR Act to Ban Federal Government from Removing Texas Border Barriers.” 2024. Mike Collins.

17. Ibid.

18.  Crowley, Kinsey and Gore, Hogan. “25 states with Republican governors sign letter supporting Texas in border control fight: What to know.” 2024. USA Today.

19. US Constitution, Fourteenth Amendment, sec. 1 & 3

20. “Marijuana Legality by State.” 2024. DISA Global Solutions.

21.  Kellogg, Amy. Anderson, Caitlin. Michiels, Meg. “A Cannabis Conflict of Law: Federal vs. State Law.” 2022. American Bar Association

22. Shein, Marcia. “How States Are Able to Legalize Marijuana.” 2014. Shein, Brandenburg, and Schrope Federal Criminal Law Center. https://federalcriminallawcenter.com/2014/10/states-able-legalize-marijuana/

23. Ibid.

24.  Crowley, Kinsey and Gore, Hogan. “25 states with Republican governors sign letter supporting Texas in border control fight: What to know.” 2024. USA Today.

Anti-Homelessness Policies on the Supreme Court’s Doorstep: Will the Court's Decision Make Room for Everybody?

February 2024 | Floyd Velasquez (Associate Editor)& Annie Vong (Editor-in-Chief )

In the 2024 election year, affordability has climbed its way to the top of American voters’ political priorities. With inflation impacting the prices of everyday goods, coupled with the expiration of COVID-19 era financial relief programs, it is no question that the burden of cost is affecting Americans’ livelihoods, posing a serious threat to housing stability. In 2023, homelessness went up to 12%, leaving more than 650,000 people unhoused on a single night – the highest number recorded since homelessness data collection began in 2007. [1] While an estimate from the U.S. Department of Housing and Urban Development shows an increase in homelessness across every state, the issue of homelessness is one well-known to densely populated urban cities – particularly those on the west coast. [2] For example, over two-thirds of California’s homeless population and almost two-thirds of Oregon’s homeless population do not have shelter. [3] Symptomatic of higher costs of living in bigger cities, states in the west have the highest concentration of chronic homelessness. [4] However, in attempts to tackle these issues, these cities have criminalized homelessness. For instance, in 2019, the City of Las Vegas passed an ordinance that prohibited sleeping and camping in public right-of-ways (i.e. streets or sidewalks) if there are available shelter beds. [5] The penalty for disobeying this ordinance? Up to $1,000 in fines, or jail time up to six months. [6] Las Vegas, along with Henderson, and other major cities such as Los Angeles, have joined or submitted amicus curiae briefs to overturn previous decisions made in the 9th U.S. Circuit Court of Appeals. [7] Primarily, the cities aim to appeal the case of City of Grants Pass v. Johnson (2024), which was granted certiorari by the Supreme Court on January 24th, 2024. Later this year, the Supreme Court will have the final word on this issue, which could reshape homelessness policy entirely. Do anti-encampment policies violate the excessive fines and cruel and unusual punishment clause of the Eighth Amendment?

In 2021, Oregon passed state legislation that allowed any city or county to regulate any homeless persons that are sleeping, lying, or sitting on public property so long as that regulation has “objectively reasonable” time, place, and manner restrictions. [8] Under that law, five anti-camping and anti-sleeping ordinances are under scrutiny in Grants Pass, Oregon. Those who are cited under those five ordinances can be given civil fines. [9] If a person is found to have violated the ordinances multiple times, they are given an exclusion order and barred from city property and if the person is still on the property despite being barred, they will be charged with trespassing. [10]

The original plaintiff, Debra Blake, filed a legal complaint against the ordinance, but has since passed away. New plaintiffs, Gloria Johnson and John Logan, joined and have filed a suit against the City of Grants Pass. Johnson has been issued a citation for camping in a park and was prevented from sleeping in her van. [11] Johnson claims that the citation violates her right against excessive fines outlined in the Eighth Amendment. [12] The Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” [13]

At the district court level, it was ruled that the city cannot enforce the camping ban during the day and without 24 hours notice. [14] After losing that case at the district court level, the City appealed the case to the U.S. Court of Appeals for the Ninth Circuit. The City argued that the case was out of the District Court’s jurisdiction because the case became moot in light of Blake’s passing. [15] A case can become “moot” when the plaintiff, defense, or the issue at hand no longer holds any relevance and that a decision made by the court would have little or no impact on the plaintiff, defense, or the issue at hand. [16] However, the Ninth Circuit rejected that claim, saying that Blake’s passing “did not moot the [plaintiffs’] claims as to all challenged ordinances except possibly the anti-sleeping ordinance.” [17] Additionally, the panel held that Martin only applied to civil citations whereas here, the civil and criminal punishments were closely intertwined due to the likelihood of being charged with trespassing. [18] Ultimately, in a 2-1 decision, the Ninth Circuit affirmed the district court's decision. [19]

In 2018, the U.S. Court of Appeals for the Ninth Circuit ruled on a similar case, Martin v. Boise (2018). [20] In Martin, the City of Boise cited six homeless residents under the City’s Camping and Disorderly Conduct Ordinances, however, they filed suit and the Supreme Court ruled that Boise violated the resident’s Eighth Amendment right. [21] They ruled that the City would be imposing a cruel and unusual punishment on homeless persons if they did not have access to shelter elsewhere. The Court held that the City could not punish someone for the status of being homeless nor the unavoidable consequences of being homeless. However, in Johnson v. City of Grants Pass (2023), the Ninth Circuit Court did not rule on whether the ordinance was a violation of the Eighth Amendment, only using Martin to guide their decision. 

The City of Grants Pass appealed the case to the Supreme Court, arguing that they need the ability to reduce, “crime, fires, the reemergence of medieval diseases, environmental harm, and record levels of drug overdoses and deaths on public streets.” [22] On the other hand, the plaintiffs argued that being homeless means that they have nowhere else to exist but outside. [23]

The implications of City of Grants Pass v. Johnson’s outcome is transformative, whether  the plaintiffs or the City wins the case. Should the Supreme Court decide in favor of Gloria Johnson – affirming Grant Pass’ violation of the “cruel and unusual punishment” and "excessive fines” clause of the Eighth Amendment – they would effectively be mandating that local governments’ policies cannot criminalize homelessness. As a result, this outcome would potentially force cities to shift their policy focus on creating pathways to affordable housing, or to tackle affordability in their local economy. On the other hand, should the Supreme Court rule that anti-homelessness policies are protected under the Constitution, there could be consequences that exacerbate the homelessness crisis. If the Supreme Court’s decision rules in favor of the City of Grants Pass, it would allow any already existing anti-sleeping or anti-encampment laws to remain, as well as promote this policy solution as one that is available to all cities across the United States. Furthermore, a decision in favor of criminalization would mean that criminal records for the homeless population would increase, creating an issue for those who are homeless who are struggling to change their situation. A criminal record creates a barrier for those who are homeless and are attempting to rise from their circumstances should they want to apply for a job, rent a home or apartment, or even make time for themselves outside of time spent in jail or in court. [24]

While reading the Supreme Court justices’ minds is nearly impossible, some scholars have casted predictions for the outcome of cases heard in the same term as City of Grants Pass v. Johnson (2024). Arguably, one can infer which way a justice may lean due to their partisan ideologies; the bench currently consists of a minority of three liberal justices, and a majority of six conservative justices —  a bench that is the most conservative it has been in around 90 years. [25] Interestingly enough, these cities – most of which are led by Democratic politicians – are eager to hear a decision from this majority-conservative court. [26] As the cards cannot currently tell where the Supreme Court will land on this case, we must await the first arguments to be heard on April 22nd, 2024. [27]

---

Sources

1. Frost, Riordan. “Record Homelessness Amid Ongoing Affordability Crisis.” Joint Center for Housing Studies at Harvard University. February 12, 2024.

2. Ibid.

3.  Shumway, Julia. “Supreme Court will hear Grants Pass homeless camping case.” Oregon Capital Chronicle. January 16, 2024.

4. Haines, Julia. “States With the Largest Homeless Populations.” U.S. News and World Report.

5. Willson, Miranda. “Following tense meeting, Las Vegas council approves homeless ordinance.” Las Vegas Sun. November 6, 2019.

6. Ibid.

7. Lyle, Michael. “Las Vegas, Henderson join cities asking U.S. Supreme Court for power to clear homeless camps.” NevadaCurrent. September 29, 2023.

8. “Noncamping use of public property by homeless individuals.” OR Rev Stat § 195.530 (2021).

9.   Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).

10. Ibid.

11. Vaughan, Jane. “As Grants Pass awaits Supreme Court decision, city’s struggles with homelessness continue.”OPB News. December. 26, 2023.

12. Ibid.

13.  U.S. Const. amend. VIII.

14. Howe, Amy. “Justices take up camping ban case.” SCOTUSblog. January 12, 2024.

15.  Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).

16. “Moot.” Legal Information Institute at Cornell Law School. June 2023.

17. Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).

18. Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018).

19. Ibid.

20.  Ibid.

21. Ibid.

22.  Gloria Johnson et al. v. City of Grants Pass, No. 20-35752 (9th Cir. 2023).

23.  Howe, Amy. “Justices take up camping ban case.” SCOTUSblog. January 12, 2024.

24.  Berg, Steve. “Supreme Court and Homelessness: What the Grants Pass v. Johnson Case Could Do.” National Alliance to End Homelessness. January 26, 2024.

25. Totenberg, Nina. “The Supreme Court is the most conservative in 90 years.” NPR. July 5, 2022.

26. Taylor, S. G., & White, J. B. (2024, January 12). Blue states look to conservative Supreme Court for help on homelessness. POLITICO. 

27. Howe, A. (2024, February 21). Court releases April argument calendar. SCOTUSblog. 

Kangaroo Court

November 2023 | Otoniel Ramos (Staff Writer & Editor)

Forty years and ten months ago, the Executive Office for Immigration Review (EOIR) was created by the U.S. Department of Justice. [1] The immigration courts under the EOIR have the task of adjudicating the cases of detained individuals in the United States facing removal or deportation proceedings and ultimately decide whether or not an individual should be allowed to stay in the United States. [2] Last year, a piece of legislation, the Real Courts, Rule of Law Act of 2022, was introduced to the U.S. House of Representatives. It sought the establishment of U.S immigration courts independent from the Department of Justice and, by kinship, the Executive Branch. [3] These courts would fall under Article I of the Constitution and provide the need for appellate judges to receive a presidential appointment “by and with the advice and consent of the Senate” and move past the practice of these judges being career attorneys at the DOJ—appointed by the Attorney General. [4] What, then, does the introduction of such legislation signify? 

By moving these courts under Article I, the bill’s sponsors signal a discontent with the lack of judicial and administrative independence in these courts and a recognition of the harm allowed due to these courts’ setup. The recognition of harm, which derives from the inadequate due process guardrails within the system, signifies, at the very least, that the perception of fairness is important — important to the legislators, their constituents, and the American people. However, it can be argued that the proposition of such legislation also signifies a level of judicial complicity — recognized by the lawmakers — in the disenfranchisement of non-citizens within our criminal justice system, or those seeking asylum, of fundamental rights.

Judicial complicity, as expounded by Robert Cover, comes from the examination of the judiciary and its role in the “enforcement of law which violates all that is worthwhile in human community.” [5] Cover’s work in the book Justice Accused is born of the Vietnam War era and seeks to answer the question of how judges responded when confronted with a law that they deemed unjust. [6] Cover turned to the Antebellum period in the U.S., where he noticed that leading judges of that period were sympathetic to the efforts of abolitionists. [7] Despite these sympathies, however, they demonstrated “powerlessness” toward permitting significant anti-slavery victories in court. [8] The judges remained constrained to what the federal law commanded, and despite other procurable sources of law from which to pull, a troubling trend emerged. [9] The courts maintained summary judgment for procedures involving fugitive slave laws, disallowed anti-kidnapping laws to be used as a defense, and ruled against the use of both juries and the application of habeas corpus in these cases. [10] In this regard, the charge of complicity in the enforcement of fugitive slave laws, laws rightfully considered unjust and immoral today and at that time, is warranted given the independence of the federal judiciary. The purpose of a charge of complicity, therefore, was for the exploration of pathways to justice through judicial activism. [11]  

What we see, then, with immigration courts and their enforcement of this country’s immigration laws and executive policy is complicity in the enforcement of law that perpetuates structural racism. [12] However, when confronted with the structural setup of immigration courts, the same independence of the federal judiciary cannot be ascribed to them; while the enforcement of unjust and racist law remains, their complicity in this enforcement can only be described as “forced.” Therefore, while legislation like the Real Courts Rule of Law Act of 2022, which seeks to grant, at the very least, some level of further judicial independence to immigration judges, may remedy the “forced” aspect of this complicity, an independent judiciary who remains adherent to the enforcement of “immoral” laws because federal law or, as will be discussed in this paper, political pressure mandates it, will remain, nonetheless, complicit.  

The manner in which immigration laws and the surrounding enforcement apparatus, Immigrations and Customs Enforcement (ICE), Department of Homeland Security (DHS), Immigration courts, etc., perpetuate the enforcement of racist law was acknowledged by Judge Miranda Du of the U.S. District Court of the District of Nevada. In 2021, Judge Miranda Du dismissed a case against Gustavo Carillo-Lopez, who was indicted for violating the federal reentry law. The reentry law, under which Carillo Lopez was indicted, “makes it a crime for persons to enter, re-enter or attempt to enter the U.S. if they have previously been denied admission to the U.S., been removed, departed, excluded from the U.S., or left the U.S. under an order of removal or deportation order.” [13] What Judge Du held in her dismissal, however, was that the defendant, Carillo-Lopez, demonstrated that the re-entry law was “enacted with discriminatory purpose,” “has a disparate impact on Latinx persons,” and that “the government failed to show that Section 1326 would have been enacted absent racial animus.” [14] Judge Du’s decision is significant when one considers that cases under the re-entry statute make up almost a third of all federal criminal cases. [15] In her dismissal, Judge Du pointed to the legislative history of provisions within the reentry statute, specifically to provisions that dated to the early 20th century, [16]

“The evidence clearly indicates, as both parties and other district courts agree, that the Act of 1929 was passed during a time when nativism and eugenics were widely accepted, both in the country at large and by Congress, and that these racist theories ultimately fueled the Act's passage.” [17]

Eugenics today is widely discredited, and any attempt at replicating or enacting policy that serves the interest of eugenics proponents can rightfully be considered morally reprehensible considering the horror and misery “carried out in the name of eugenics in the 20th century.” [18] In the same way, the continuing enforcement of a law, or at least provisions within a law, which the proponents of eugenics brought forward, makes that law and its enforcement racist and immoral. For this very reason, like with the enforcement of antebellum fugitive slave laws, continued enforcement of such laws represents in much the same ways a continuing injustice and the court's complicity in perpetuating it.         

Judge with a Boss

When the framers of the Constitution laid out the provisions for the U.S. Supreme Court in Article III, they prescribed that the judges “hold their office during good behaviour.” [19] This provision, of course, has come to be understood to provide for the lifetime appointments of Justices to the Supreme Court. It was justified by the requisite that these courts be independent and “considered as the bulwarks of a limited Constitution against legislative encroachments” and because the “independence of the judges is equally requisite to guard the Constitution and the rights of individuals…” [20] The manner in which immigration courts under the Justice Department’s EOIR have functioned for the past 40 years, under administrative policy pressure and with the enforcement requirements prescribed within the Immigration and Nationality Act (INA), gives credence to the premonitions in mind at the time of the Supreme Court’s framing. 

What immigration courts fail to live up to is precisely that ability to guard the rights of the individuals who stand before it. In the most extreme cases, the “Tent Courts,” established under the Trump administration, demonstrate the palest disregard for any perception of fairness and impartiality. These courts, established in 2019 to operate as temporary Migrant Protection Protocols (MPP) courts and as part of President Donald Trump’s “Remain in Mexico” program, were widely criticized for their perceived lack of Due Process guardrails. [21] The courts were closed to the public, the press, and any legal observers. [22] As Sarah Towle, a reporter who was able to sneak into one of these courts while accompanying an Iranian Immigration attorney, describes: “What I witnessed at US immigration tent court that morning was not just. It was not legal. It was a sham, a dystopian, Kafka-esque travesty of jurisprudence that hops — like a kangaroo — right over legal due process.” [23] The Trump-era tent courts provide a glimpse into the epitome of pressure from administrative policy-making on the enforcement of immigration law and its real function in the transgression of the notions of fundamental fairness.

However, the problem is not necessarily that due process protections do not exist in immigration court but with how they have been interpreted to apply in such limited and counterproductive ways that they not only lose usefulness but bring harm. Precedents relating to immigration law and what constitutes a violation of the Fourth Amendment, for example, demonstrate a grave incompatibility between their interpretations in an immigration law context and notions of fundamental fairness as they are thought to apply to U.S. citizens. For example, the requirement to stop an individual suspected of being unlawfully present in the United States is that an officer be able to “articulate objective facts to support that suspicion.” [24] That consideration becomes troubling when, for example, speaking a foreign language or the inability to speak English is an allowable consideration United States v. Manzo-Jurado (2006), [25] and further yet, that the proximity of an individual to the border can serve to support any officer’s given suspicion United States v. Garcia-Barron (1997). [26] Disregarding for a moment whether or not these allowable considerations in any form constitute “objective facts,” what interpretations like these do, at first look, is sanction the application of racial profiling for the enforcement of these laws.  As Fatma Marouf describes, “Permitting immigration stops based partly or entirely on race/ethnicity undercuts the role that the reasonable suspicion standard is meant to play in protecting a presumption of innocence by acting as a check on unbridled government power.” [27] What can be gleaned from these few examples is that the interpretation of constitutional protections in such a harmful manner is essentially a requirement for the enforcement of laws such as the 8 U.S.C. 1326 or the Re-entry law to be possible. It is then reasonable to think that such a requirement brings into question the true compatibility of these immigration laws within the scope of the intended protections of the Fourth and Fifth Amendments. 

The Case of El Salvador’s State of Exception

Today, another example arises. El Salvador, in March 2022, as a response to extreme homicide rates under President Nayib Bukele, enacted what was then called “un Estado de excepción,” or a state of exception “that suspended certain civil liberties, including due process.” [28] The purpose of this state of exception was the mass incarceration of members of street gangs like the MS-13 and Barrio 18 (18th Street); as can be expected, however, with such a suspension of civil liberties and mass incarceration, many of the individuals caught up in the arrests are innocent and have been subject to immense human rights abuses. [29] El Salvador has gone about arresting as many as 39,000 individuals for “unlawful association” and defines that charge broadly to include individuals with relations “of any nature” to gangs. [30] These arrests usually target young men and individuals with tattoos but, notably, also include those who arrive in El Salvador after being deported. [31]

Asylum, like the withholding of removal and protections under the Convention against Torture, represents forms of relief for noncitizens that have already been found removable in deportation proceedings when there is a danger of facing human rights violations in the country they are being deported to. [32] In the most basic of terms, eligibility for asylum comes from a fear of persecution due to an individual’s race, religion, nationality, political opinion, or inclusion in a particular social group. [33] Given that the government of El Salvador was associating deported individuals with the activities of gangs [34] and further taking into account the harms actual gang members (who may have renounced their membership) faced from the gangs themselves, what deporting an individual to El Salvador meant was placing them into a “particular social group” which was likely to face the threat of persecution. Despite this, precedent in the Board of Immigration Appeals did not always accept the idea that gang members qualify as members of a “particular social group” eligible for asylum. [35] The decision reached by the 4th Circuit Court of Appeals challenged the BIA’s standard for determining “whether a group of former gang members is sufficiently particular” because that standard was considered “too narrow and exacting.” [36]  

However, forms of relief like asylum are discretionary, meaning it is ultimately within the judge's scope to decide whether or not an individual is eligible to receive relief such as asylum. [37] Presidential administrations understand this and are among the myriad sources of pressure on immigration judges. That is not, however, to say that immigration judges act as political agents responsive to the wishes of any given administration; in fact, there is very little evidence to suggest immigration judges strictly adhere to the policy goals of any given administration. [38] What is true, however, is that immigration judges navigate in an in-between world, as both “bureaucrats with robes” expected to make decisions based on the law and facts of a given case [39] and as bureaucrats, there is an expected prioritization for the implementation of public policy sometimes over “due process and independent justice.” [40]

Returning to El Salvador’s state of exception, where two opposing forces seem to be at play. First, the judicial responsibility of immigration judges to adhere, as is expected, to the ruling of a higher court, and second, the public policy pressure exerted by a given administration in response to the potential unpopularity of granting asylum to gang members. Data relating to the granting of asylum demonstrates that, beyond these two sources of pressure, both local and state politics also significantly impact the percentages of asylum granted. [41] Immigration judges operating in states where Republicans are in control were less likely to grant asylum, and the same was the case for judges working in pro-republican communities that had a desire to limit immigration into the country. [42] This, without a doubt, creates tension for immigration judges. With this added pressure in mind, the question becomes, how can immigration judges navigate this in-between world without jeopardizing the rights of the individuals they are adjudicating cases for? What the Trump-era tent courts demonstrate is that they really can’t. [43]

Adversarial court?

Finally, what cannot be ignored is the reality faced by those “respondents” who find themselves navigating the world of immigration courts. What the current immigration court setup leaves unanswered is whether an individual finding themselves in these courts could perceive impartiality, especially when the judge and opposing counsel share the same employer. It is hard to argue that they should. The Department of Homeland Security and the Department of Justice both operate under the Executive Branch, and it is hard to argue that the two do not have, at least some, shared institutional interests and are, as discussed earlier, susceptible to the same external pressures when adjudicating these cases. Such a setup should understandably present doubts about the appearance of impartiality and fairness within these courts. A further troubling data point in removal proceedings is what Professor Michael Kagan refers to as a “mass voluntary surrender of fundamental rights.” [44] In removal proceedings, what can be seen is that respondents admit and concede to charges “in nearly every case, without getting anything concrete in return.” [45] Kagan argues that this trend of mass surrender has allowed for the adjudication of removability cases to become incredibly quick, with 94.6% of the cases observed in Las Vegas immigration courts taking less than 18 minutes to find a respondent removable. [46] What this represents is a troubling development; similar to the requirement of summary procedure in cases involving fugitive slave laws, the mass surrender present in immigration courts today, facilitated by immigration judges and DHS attorneys, is a roadblock to any serious recourse to justice. 

However, this discussion of mass surrender is incomplete without addressing the proverbial elephant in the room, which is the lack of a right to counsel in removal proceedings for noncitizens. In the year 2023, of all individuals who had pending cases with at least one hearing adjournment, only 59% were represented, and the same was the case for Unaccompanied Children who had cases pending for more than one year. [47] Unaccompanied Children (UACs) are “migrants under eighteen years old with no lawful status in the United States and who have no parent or legal guardian available to care for them.” [48] The reason such a right to counsel does not exist in these proceedings is because removal proceedings are considered civil. [49] That categorization is troubling when confronted with the actual reality of immigration proceedings. While civil procedures are understood as disputes among two private entities, persons, or organizations, removal proceedings involve a “full flex of government power” in the arrests, searches, interrogations, filing of charges, detentions, and finally, the deportations of individuals. [50] Add to that the Supreme Court’s recognition in Padilla v. Kentucky (2010) that deportation is “intimately related to the criminal process,” [51] and what remains is an undertaking that pretends to be civil while applying the punishment and state power requisite of a criminal procedure. The only reason to pretend immigration court is something that it is not is because the mass surrender of individuals is particularly what is desired. The kind of pressure described earlier and manifest here, is reflected in the amount of immigration judge-ordered deportations in just the past 20 years.  The amount of deportations in that period represents an immense increase — equal almost to the number of deportation orders in the century before. [52] This trend was additionally accompanied by a venture into the deportation of the parents of U.S. citizens — a practice that was not common before 1976. [53] Extending to noncitizens the due process rights common in criminal procedures, like the right to counsel at government expense, presents a barrier to the bureaucratic responsibility mentioned before. What rulings in the federal judiciary that don't question, grant, or extend these rights to noncitizens in removal proceedings do is acquiesce to that bureaucratic responsibility, which appears like a responsibility to deport in an almost summarily fashion individuals of Hispanic, Asian, or African descent, [54] over the responsibility to due process considerations and impartial justice. 

 Conclusion

In his dissent in the case of Perez v. Brownell (1958), Chief Justice Earl Warren articulated the following: “Citizenship is man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession, and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf. His very existence is at the sufferance of the state within whose borders he happens to be.” [55] In the context of the modern immigration court system, these words resonate profoundly. Immigration courts, in their current form, have become the tools by which the U.S. exacts that same sufferance described by Chief Justice Warren. While the proposed legislative reform within the Real Courts Rule of Law Act of 2022 offers a substantial change in the right direction, it is not enough to address the sufferances exacted by the state on the “stateless person.” Perhaps the increased independence of the courts gives space for judicial activism against these laws, but if the denial of rights to these individuals — rights held in reverence by U.S citizens — has already taken place, then it represents the imposition of a hierarchy of law that is incompatible with the norms already generated and held — as espoused by Chief Justice Earl Warren — by society. [56] By this same token, the continued imposition of these “incompatible” hierarchies of law will inevitably lead to the recognition that the methods of adjudication applied by courts are no longer better than the political pressures that forced or enabled this complicity on them in the first place. As such, the only natural path to remedy said complicity and the harm already perpetrated is to begin extending elements of that “right to have rights” to the “stateless person” or, in other words, to inaugurate his emancipation from the legal binds of U.S immigration law. 

---

Sources

1. “Executive Office for Immigration Review | About the Office.” n.d. Department of Justice. Accessed November 11, 2023.

2. “Executive Office for Immigration Review | Fact Sheet.” 2022. Department of Justice.

3. Congressional Research Service, Andorra Bruno, William A. Kandel, Abigail F. Kolker, Audrey Singer, Holly Straut-Eppsteiner, and Jill H. Wilson. 2022. “Immigration Legislation and Issues in the 117th Congress.” CRS Reports. Under Immigration Courts and Removals At 25

4. Congressional Research Service. 2022, “Immigration Legislation and Issues in the 117th Congress.” At 25.

5. Cover, Robert. 1968. “reviewing R. Hildreth, Atrocious Judges: Lives of Judges Infamous As Tools of Tyrants And Instruments of Oppression (1856).” Columbia Law Review 1003 (1005). (Cited in Paulsen, Michael S. 1989. “Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused.” Journal of Law and Religion 7 (1): 33 - 97. At 33). 

6.  Smith, Michael E. 1976. “Reviewed Work Justice Accused: Antislavery and the Judicial Process by Robert M. Cover.” The American Journal of Comparative Law 24, no. 1 (Winter): 138 - 143.

7. Cover, Robert M. 1975. Justice Accused: Antislavery and the Judicial Process. N.p.: Yale University Press.

8. Cover, Robert M. 1975. Justice Accused (Cited in  Minow, Martha, Michael Ryan, and Austin Sarat, eds. 1992. Narrative, Violence, and the Law: The Essays of Robert Cover. N.p.: University of Michigan Press. At 4)

9.  Minow, Martha, Michael Ryan, and Austin Sarat, eds. 1992. Narrative, Violence, and the Law At 3.

10. Ibid.

11. Paulsen, Michael S. 1989. “Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused.” At 35.

12. Kamasaki, Charles. 2021. “US immigration policy: A classic, unappreciated example of structural racism.” Brookings Institution.

13. 8 USC 1326

14.  United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021)

15.  Koh, Jennifer. 2021. “Court to decide requirements for noncitizens defending against federal prosecution for criminal re-entry.” SCOTUSblog, April 26, 2021.

16.  United States v. Carrillo-Lopez, 555 F. Supp. 3d 996 (D. Nev. 2021).

17.  Ibid.

18. Caplan, Arthur, Glenn McGee, and David Magnus. 1999. “What is immoral about eugenics?” British Medical Journal, (November).

19. U.S Const. Art.3 §1.1

20.  Hamilton, Alexander. 1788. “No. 78.” In The Federalist Papers. New York.

21. Hennessy-Fiske, Molly. 2019. “Trump administration bars access to immigration tent courts.” Los Angeles Times, September 11, 2019.

22. Ibid.

23.  Towle, Sarah. 2020. “An Unlikely Witness to Trump’s Kangaroo Courts.” Medium, March 18, 2020.

24.  United States v. Brigoni-Ponce 442 U.S 873, 887 (1975)

25. United States v. Manzo-Jurado 457 F.3d 928, 937 (9th Cir. 2006)

26.  United States v. Garcia-Barron 116 F.3d 1305, 1308 (9th Cir. 1997).

27. Marouf, Fatma. n.d. “Immigration Law's Missing Presumption.” The Georgetown Law Journal, Forthcoming, Texas A&M University School of Law Legal Studies Research Paper. At 1007.

28.  Zulver, Julia, and José Méndez. 2023. “El Salvador's “State of Exception” Makes Women Collateral Damage.” Carnegie Endowment for International Peace.

29. Ibid.

30. “El Salvador: Leaked Database Points to Large-Scale Abuses.” 2023. Human Rights Watch.

31. “Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse.” 2020. Human Rights Watch.

32. “Asylum in the United States.” 2022. American Immigration Council. Under “What is Asylum”.

33. Ibid.

34.  “Deported to Danger: United States Deportation Policies Expose Salvadorans to Death and Abuse.” 2020. Human Rights Watch.

35.  Weissner, Daniel. 2021. “Former Gang Members are a distinct 'social group' that can qualify for asylum - 4th Circuit.” Reuters Legal, January 25, 2021.

36.  Ibid.

37. U.S. Congress. United States Code: Immigration and Nationality Act, 8 U.S.C. 1158.

38. Blasingame, Elise, Christina L. Boyd, Roberto F. Carlos, and Joseph T. Ornstein. 2023. “How the Trump Administration’s Quota Policy Transformed Immigration Judging.” American Political Science Review, 1 -16.

39.  Chand, Daniel, and William Schreckhise. 2020. “Independence in Administrative Adjudications: When and Why Agency Judges Are Subject to Deference and Influence.” Administration & Society 52, no. 2 (July): 171 - 206.

40. Lens, Vicki. 2012. “Judge or Bureaucrat? How Administrative Law Judges Exercise Discretion in Welfare Bureaucracies.” Social Service Review 86, no. 2 (June): 269 - 293. (Cited in Blasingame Elise, et al.  “How the Trump Administration’s Quota Policy Transformed Immigration Judging.” At. 3) 

41. Chand, Daniel E., William D. Schreckhise, and Marianne L. Bowers. 2017. “The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions.” Journal of Public Administration Research And Theory, 182 - 196. At 193. 

42. Ibid.

43.  Towle, Sarah. 2020. “An Unlikely Witness to Trump’s Kangaroo Courts.” Medium, March 18, 2020. 

44. Kagan, Michael. 2023. “Mass Surrender in Immigration Court.” UC Irvine Law review 14, no. Forthcoming (March): 1 - 54. At 2.

45. Ibid.

46. Ibid.

47. ““Current Representation Rates.” 2023. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ADJUDICATION STATISTICS.

48. Roy, Diana, and Ameila Cheatham. 2023. “U.S. Detention of Child Migrants.” Council on Foreign Relations. Under “What is the definition of an unaccompanied minor?”

49.  “Executive Office for Immigration Review | Fact Sheet.” 2022. Department of Justice.

50. Marouf, Fatma. n.d. “Immigration Law's Missing Presumption.” At 987. 

51. Padilla v. Kentucky, 559 U. S. 356 (2010)

52. Asad, Asad L. 2019. “Deportation Decisions: Judicial Decision-Making in an American Immigration Court.” American Behavioral Scientist 63, no. 9 (August): 1221-1249. (Cited in Blasingame Elise, et al.  “How the Trump Administration’s Quota Policy Transformed Immigration Judging.” At 2.)

53.  Kamasaki, Charles. 2021. “US immigration policy: A classic, unappreciated example of structural racism.” Brookings Institution.

54.  Kamasaki, Charles. 2021. “US immigration policy: A classic, unappreciated example of structural racism.” Brookings Institution

55. Perez v. Brownell, 356 U. S. 44 (1958) (Cited in Ngai, Mae M. 2014. Impossible Subjects: Illegal Aliens and the Making of Modern America - Updated Edition. N.p.: Princeton University Press. At 229).

56. Cover, Robert M. 1983. “The Supreme Court, 1982 Term Foreword: Nomos and Narrative.” Harvard Law Review 97, no. 1 (November): 4 - 68.

International Humanitarian Law: The Case of Nagorno-Karabakh

November 2023 | Mary Giandjian (Staff Writer & Editor)

On September 19th, 2023, Azerbaijan launched an "anti-terrorist operation" in the Nagorno-Karabakh Republic (NKR), a mountainous enclave in the South Caucasus. Though located in Azerbaijan’s borders, Nagorno-Karabakh is a de facto state predominantly populated by ethnic Armenians. The September 2023 Azerbaijani operation resulted in over two hundred casualties, including civilians, [1] as well as the cession of NKR to Azerbaijan proper beginning January of 2024. Ten days after the launch of the "anti-terrorist operation," Armenia submitted a request to the International Court of Justice for an “indication of provisional measures, ‘to preserve and protect rights enshrined in the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).” [2] In reference to 1993 United Nations Resolutions, the Geneva Conventions, and the pending ICJ court decision, this article will look at applications of international humanitarian law. 

The present matter of Nagorno-Karabakh has enduring foundations from the Soviet-era that brought forth various international legal issues. When the Nagorno-Karabakh Autonomous Oblast attempted to secede from Azerbaijan in 1988, the de facto state’s name changed to the “Nagorno-Karabakh Republic,” then to the “Republic of Artsakh” two decades later. The inter-ethnic fighting became an international armed conflict following the Soviet Union’s collapse in 1991. [3] In a referendum vote, 99.9% of Nagorno-Karabakh declared independence from Azerbaijan on the 6th of January 1992, despite the Azerbaijani minority boycotting the separation. [4] By the spring of 1993, Armenia and Azerbaijan engaged in a full-scale war over the NKR, concluded with the territorial acquisition by Armenia’s armed forces.

Previous clashes of the two parties resulted in UN Resolutions that should be acknowledged for their precedential applications. The United Nations Security Council (UNSC), in observation of the intensifying hostilities, adopted four resolutions in 1993. Resolution 822, adopted on April 30th 1993, demanded the cessation of “all hostilities and hostile acts with a view to establishing a durable cease-fire,” as well as the withdrawal of all “occupying forces.” [5] The resolution urged all parties involved to resume resolution negotiations within the framework of the Conference for Security and Cooperation in Europe, known today as the Organization for Security and Cooperation in Europe (OSCE) or the “Minsk Group.” Resolution 822 further called for the “unimpeded access for international humanitarian relief efforts” in the region, reaffirming that all parties are obligated to principles of international humanitarian law. [6] Resolution 822 was followed by three additional resolutions that reaffirmed concern over civilian displacement in the “humanitarian emergency.” [7]

In the decades-long duration of the Nagorno-Karabakh conflict, the treatment of the civilian population remains a foregoing concern. Today, a fundamental issue of the September 19th “anti-terrorist” operation by Azerbaijan’s armed forces addresses the conduct and use of force by Azerbaijan against Armenians of Nagorno-Karabakh. The circumstances today of the Nagorno-Karabakh Republic are not standalone events, and therefore, the legal implications cannot be evaluated in a single conclusion. Past United Nations decisions, as well as its current involvements significantly affect the developments and will be analyzed as such.  

At the core of international humanitarian law are the 1949 Geneva Conventions, of which Armenia and Azerbaijan have been parties since 1993. As state parties, Armenia and Azerbaijani are held accountable to compliance with the 1949 Geneva Conventions itself, as well as Protocols I–III. These conventions established a widely accepted definition of armed conflict that future determinations cite. Per the International Committee of the Red Cross, Common Article 2 of the Geneva Conventions, armed conflict is “declared war or of any other armed conflict which may arise between two or more [States], even if the state of war is not recognized by one of them.” [8] Following the establishment of armed conflict in Common Article 2, Common Article 3 institutes that during times of armed conflict not international in nature, each party must oblige by the following: 

“Persons taking no active part in the hostilities, including members of armed forces who 

have laid down their arms and those placed hors de combat by sickness, wounds, 

detention, or any other cause, shall in all circumstances be treated humanely, without any 

adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any 

other similar criteria.” [9]

The humanitarian crisis in the Nagorno-Karabakh Republic resulted from recurring violations of humanitarian standards by the Azerbaijani government, and must be addressed as such. The September 9th offensive in which Azerbaijani armed forces took control of Nagorno-Karabakh occurred in addition to a blockade that prevented necessities from reaching these populations nine months prior to the “anti-terrorist operation.” In early December 2022, Azerbaijan closed the Lachin Corridor, a stretch of land into the de facto state where resources were delivered to residents. In the absence of electricity, food, water, and medicines, Azerbaijan attacked a population facing severe deprivation by September 2023. Such conduct raises questions about the 1949 Geneva Conventions Article 3, protecting noncombatants in armed conflict not of international standing. 

Until recently, international institutions have generally done little to address potential violations of humanitarian law in Nagorno-Karabakh. Following September’s developments, the Republic of Armenia filed its fifth request with the United Nations’ International Court of Justice (ICJ) to hear the Application of the International Convention on the Elimination of All Forms of Racial Discrimination in Armenia v. Azerbaijan (2021). Armenia stated Azerbaijan orchestrated a “full-scale military assault on the 120,000 ethnic Armenians of Nagorno-Karabakh,” killing and wounding hundreds, including civilians, in addition to forcibly displacing tens of thousands of ethnic Armenians from the NKR to Armenia. [10] The referent UN convention, The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), was adopted in 1965 and enacted in 1969. The convention commits its Parties to the elimination of racial discrimination, establishing the Committee on the Elimination of Racial Discrimination (CERD) to oversee member compliance. 

In the fifth request, submitted September 28th, 2023, Armenia asked the ICJ to indicate ten provisional measures, some of those being Azerbaijan refraining from breaching obligations under the CERD and refraining from taking action that displaces the remaining ethnic Armenains of NK or preventing their safe return to Armenia. Of these provisional measures, Armenia includes the humanitarian safeguarding of civilians, asking that Azerbaijan restore utilities such as gas and electricity and refrain from any future disruption and for Azerbaijan to refrain from hindering the ability of the International Committee of the Red Cross to provide humanitarian aid to the ethnic Armenians of Nagorno-Karabakh. The International Court of Justice cannot establish breaches under the jurisdiction of the Committee on the Elimination of Racial Discrimination, but it can approve provisional measures in the case that irreparable prejudice “could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.” [11]

Azerbaijan contended that Armenia had not established a correlation between the rights it sought to protect in the request for provisional measures. Further, Azerbaijan maintained that Armenia provided no evidence of an intentional deprivation of public utilities, or the detention of political representatives for their national or ethnic origin as described in Armenia’s submission to the ICJ. The Court’s decision, however, refutes this and considers a link between civilian rights and the prevention of displacement for the remaining individuals of Armenian origin. Azerbaijan held that there was no direct threat to the civilian population of Karabakh, and that the blockade referenced above is now open for humanitarian deliveries and civilian movement. 

The Court, however, in observation of the population’s long-standing exposure to a “situation of vulnerability and social precariousness,” [12] concluded that conditions for the indication of provisional measures are satisfied. As such, the Court will now provide measures to be taken in order to protect the rights Armenia claimed in its request. In accordance with the obligations under CERD, Azerbaijan must ensure that individuals having left Nagorno-Karabakh after September 29th and wish to return, as well as individuals having remained in Nagorno-Karabakh after September 29th and now wish to depart, can do so in a “safe, unimpeded and expeditious manner,” and that all individuals of Nagorno-Karabakh are free from the “use of force or intimidation” that may result in their departure. [13]

The United Nations’ role in the Nagorno-Karabakh conflict has varied. During the 1993 Nagorno-Karabakh war, the United Nations issued four resolutions that urged for the end of hostilities, mediated peace negotiations, and access for international humanitarian relief efforts. The November 17th decision delivered by the United Nations’ International Court of Justice acknowledges the civilian conditions discussed previously, specifically the forced exodus and deprivation, that are now reaffirmed in legal obligations of Azerbaijan. Prior to the International Court of Justice Application of the International Convention on the Elimination of All Forms of Racial Discrimination Armenia v. Azerbaijan (2021) decision delivered November 17th, international institutions left the offensive largely unaddressed. While the Court decision did not address the cession of Nagorno-Karabakh to the Republic of Azerbaijan beginning January of 2024, the obligations to be fulfilled nonetheless remain as decided. In the “anti-terrorist” offensive of September 9th, as well as the blockade that led up to it, Azerbaijan raised considerable international legal concerns of humanitarian assistance. These concerns specifically targeted the noncombatants of Nagorno-Karabakh, of which the Geneva Conventions Common Article 3 details Parties’ obligations. 

The circumstances of 2023 have been unlike those of previous years. The cession of the Nagorno-Karabakh Republic to the Republic of Azerbaijan raises questions of how the provisional measures will be enforced. Civilian conditions and the differentiation of noncombatants and combatants remain fundamental issues to international humanitarian law, codified in the 1949 Geneva Conventions, the respective 1993 United Nations Resolutions, as well as the International Court of Justice decision.

---

Sources

1. Roy, Diana. “In Photos: The Nagorno-Karabakh Exodus.” Council on Foreign Relations, October 6, 2023.

2.  Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) Press Release. International Court of Justice. 29 September 2023.

3. Schmitt, Michael N., and Kevin S. Coble. “The Evolving Nagorno-Karabakh Conflict - an International Law Perspective - Part I.” Lieber Institute West Point, September 27, 2023.

4. Ruys, Tom, and Felipe Rodríguez Silvestre. “Military Action to Recover Occupied Land : Lawful Self-Defense or Prohibited Use of Force? The 2020 Nagorno-Karabakh Conflict Revisited.” International Law Studies. 97 (1).  2021. 669

5. UN Security Council, Security Council Resolution 822 (1993) [Armenia-Azerbaijan], 30 April 1993, S/RES/822 (1993).

6. Ibid.

7. Ibid.

8. The Geneva Conventions. International Committee of the Red Cross. 1949.

9. Ibid.

10. Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Request for the Indication of Provisional Measures, I.C.J. Reports 2023.

11. Ibid.

12. Ibid.

13. Ibid.

Beyond Bars: A New Era of Criminal Justice Reform

November 2023 | Allison Hardy (Staff Writer & Editor) & Luke Slota (Executive Director)

Criminal justice reform is a long-standing, worldwide effort aiming to end harsh policies and racial inequities present in criminal justice systems. It is a multi-faceted fight for equality that tackles issues inside and outside the courtroom, applying to individuals in pretrial detention, defendants in the courtroom, and even those convicted who are striving to rebuild their lives after navigating the challenges from their criminal record. In 2023, multiple states furthered the fight for racial equality in the criminal justice system by implementing various policies, many of which were the first of their kind to pave the way for future reform in other states. [1] Most notably, two states, Illinois and Texas, have implemented progressive reforms, cash bail and record expungement, respectively, that pose benefits and challenges. Although substantively different, both areas of reform are aimed at reducing tools of discrimination that severely prejudice individuals who fall into low-income and/or minority groups by enhancing their ability to return to their community, build support networks, and increase employment opportunities. 

Elimination of Cash Bail

The cash bail system present today emerged from two waves of cash bail reforms in the middle of the 20th century that emphasized the importance of public safety. It allows defendants to pay a set amount, determined by the judge, to avoid pretrial detention and allows them to receive the money once the legal proceeding is completed, ultimately incentivizing appearing in court rather than fleeing. [2] However, racial justice reform has committed to starting a third wave of cash bail reform aimed at solving racial injustices from the retribution approach as a majority of those who can not afford cash bail are minority groups, and are effectively kept behind bars. [3] For example, many states like New Jersey have already made reforms to cash bail, not a complete abolition, and have seen considerable success on all fronts. Before cash bail reform, New Jersey had a massive pretrial population as 75% of the 15,000 incarcerated were awaiting trial or sentencing, unable to afford bail. With cash bail reform in effect, between 2015 and 2022, there was a steady decrease in people behind bars, with a total 20% decrease in pretrial detention. On top of this, it has saved tens of millions of dollars in New Jersey’s expenditure as mass incarceration continues to eat up taxpayer dollars with each individual kept behind bars.

New Jersey’s cash bail reform serves as a strong case study to open the discussion for future states to take the next step and eliminate cash bail. For example, at the beginning of 2023, Illinois took a progressive step in pretrial detention by implementing the SAFE-T Act, marking a historic departure from the traditional cash bail system and shifting towards a fully risk-based system, effectively eliminating cash bail. Now, under Illinois’ system, judges have primary discretion on who will be detained before trial, which resorts to house arrest and less restrictive measures for anyone else not detained. Their case predicates release or detention based on the state’s burden to prove that the defendant "poses a specific, real and present threat to a person, or has a high likelihood of flight."[4]Various factors will be taken into consideration, such as past criminal history and the nature of the offense. [5] Such criteria already determines cases including felonies such as murder or sexual assault, but make it extremely difficult for individuals with low-level offenses to be detained. 

Illinois’ system represents a significant advancement in racial justice reform. More than half of the defendants in jail are eligible for cash bail but can not afford it, a majority of whom are part of minority communities and only face low-level offenses. Cash bail can be  a tool of racial discrimination against minorities and a mechanism to perpetuate biases, as it can be misused by prosecutors, judges, or even detectives lacking investigative evidence . For minority communities, the impact is as severe as prolonged incarceration, which can last for years, disrupting lives by causing individuals to lose access to critical support networks, hurting employment and those reliant on one’s employment, and reducing the capacity to enjoy life. The choice facing those who can afford to pay the cash bail is no less severe as those individuals who face a double-bind: either suffer a loss of liberation or pay for liberation and lose hard-earned money that goes into surviving week to week. [6] Regardless, cash bail disproportionately affects minority communities and the elimination of cash bail in Illinois opens the doors for people behind bars to go home and continue to provide for their family.

While Illinois’ system is lauded for its benefits, the elimination of the cash bail system poses unique challenges as lawmakers rely on predictions rather than any truly proven outcomes. For example, since the cash bail system naturally puts fewer people behind bars and out in the community, concerns about public safety have begun. Although severe offenders will still be incarcerated, judges are not infallible in other cases, and currently-charged people may commit similar or even more serious offenses. However, previous research on reforms of cash bail, such as in New York and New Jersey, indicates that there is no strong correlation between the reduction of cash bail and crime in those respective communities. [7] Along with this, under a cash bail system, many people who pose a threat to safety could go free if they had enough money to post bail, which is far less likely under a judge’s discretion.

Among concerns about public safety, many people in the legal sphere hold doubts about its effects on court clog and the speed at which trials move. Already, court clog is an existing issue where it can take years for cases to get off the desks of prosecutors. However, under cash bail elimination, this issue could be exacerbated; showing up to the trial was incentivized since the funds would be returned upon successful legal completion. But under cash bail elimination, there serves no incentive to return for trial, potentially causing many arrestees to not show up to trial and affect the efficiency and speed of the legal system as a whole, limiting the distribution of justice and the right to a speedy trial.

Record Expungement

While acknowledging legal system challenges, states such as Texas are actively pursuing justice reform to provide their community with improved and more equal opportunities. Texas was the first state to pave the way for individuals to expunge or seal their criminal records through a nondisclosure order. This not only marked a pivotal change within Texas, but also created a model for others to fight for nationwide reformation in their state or around the country. This Texas law aims to offer a lifeline to millions who have past legal infractions, especially small ones. Chapter 55 of the Texas Code of Criminal Procedure states specific timeframes, outlining the waiting period in which residents can expunge or seal their criminal records based on the severity of the offense. [8] This requirement presents residents with a renewed opportunity for societal reintegration after completing their time for crimes committed. By granting eligible individuals a chance to change their lives, this legal recourse becomes a catalyst for employment prospects, enabling them to reclaim their lives outside of their criminal past. The Texas State Bar states the significance of expunction by highlighting the pivotal distinction it creates in removing the arrest, charge, or conviction from a permanent record. [9] This outlook on expunction speaks volumes about the need for reformation and societal reintegration beyond punitive measures in the justice system. 

“People can change," bill sponsor Assemblywoman Catalina Cruz, a Democrat who represents the Queens borough of New York City, said on the Assembly floor. "People can get better. People can repent. People can be forgiven. Our society should not be judged on the behavior of one member at its worst moment but on our ability to forgive them and to grant them the ability to move forward and heal and to become productive members of our society.” [10] Assemblywoman Catalina Cruz's statement echoes the fundamental essence of this reformative approach by stating the importance of allowing individuals the chance to change, prove themselves, and contribute meaningfully to society.

In 2023, Congress introduced a bill that could not only change lives in Texas but unlock opportunities for millions of Americans who have some sort of charge on their record that is holding them back from meaningfully contributing to society. This bill is known as the Clean Slate Bill and passed in 2023. This law would allow for a person's criminal records to be sealed after the required time if they are not on probation or parole and have no other pending charges. This opportunity will inspire others to rejoin society and transform their lives for years to come instead of feeling stuck in the system. 

Further, ​​The Clean Slate Initiative is a group that works to pass and implement laws that automatically clear eligible records for people who have completed their sentence and remained crime-free. They played a huge role in passing the Clean Slate bill. Sheena Meade, CEO of The Clean Slate Initiative states, “We're building a pathway so that automatic record clearance is a reality in all 50 states that will unlock second chances for an additional 14 million people.” [11] This bill empowers former criminals to keep their communities safe. By providing former criminals with opportunities to work and change their lives, it will inspire them to embark on a journey of transformation. It has been proven time and time again that people are less likely to commit crimes if they can possess a job which can lead to safe housing and the ability to care for their families. [12] Former criminals who have proven they can behave in society should be granted an expunction for equal opportunity to find a job and contribute to society outside of the system. Criminal justice reform, in general, should be about fighting for equality and fairness within the legal system and the expunction of records is a great place to start the fight. 

Conclusion

The year of 2023 marks a significant stride in the fight for racial equality, with Illinois and Texas at the forefront for progressive changes. Illinois’ abolition of the cash bail system to a risk-based system targets the injustices of pretrial detention through the SAFE-T Act. The case-by-case evaluations support the freedom and financial security of those convicted of low-level offenses, allowing many minority groups to maintain support networks and employment while awaiting their completion of the legal proceedings. Texas’ policy focuses on reintegration, allowing countless individuals to expunge their records. For those in Texas, it’s not solely about erasing a criminal record, but rather restoring dignity, opportunity, and hope to those that are at a systemic disadvantage. These reforms, although distinct in their approach, emphasize the importance of a justice system that is equitable and independent of economic status or race. In tandem with this, they reflect a shift in societal values from pure retribution to a new wave of rehabilitation and understanding. Looking forward, these reforms in Illinois and Texas are significant milestones, and are a part of the ongoing and long-standing effort for racial equality. It is imperative to monitor the implications of these reforms and use the many successes to further push other legislation to make similar efforts.

---

Sources

1. Pereira, Ivan. “Here Are Some of the Major New Laws That Go into Effect in 2023.” ABC7 Chicago, 1 Jan. 2023.

2.  Hill, Caitlin. “A Brief History of Cash Bail.” ACLU of Ohio, 12 Dec. 2017.

3. New Jersey Bail Reform Fact Sheet, Arnold Ventures. 

4. Moeder, Nicole, et al. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, 19 Dec. 2022, abcnews.go.com/Politics/illinois-set-become-1st-state-eliminate-cash-bail/story?id=95421342. 

5. “Cash Bail Changes - 2023 Safe-T Act.” Illinois Legal Aid Online.

6. Moeder, Nicole, et al. “Illinois Set to Become 1st State to Eliminate Cash Bail.” ABC News, 19 Dec. 2022.

7. Ibid.

8. United States of America. Texas Legislature. Chapter 55. Texas Code of Criminal Procedure. 2023.

9. “Expunctions in Texas.” Texas Young Lawyers Association and the State Bar of Texas. 2019. 

10.  Lisa, Kate. “After hours of debate, Legislature passes Clean Slate Act.” Spectrum News 1. June 9, 2023.

11. Meade, Sheena “How "second chance" laws could transform the US justice system.” TED. April 2023.

12. Blattman, Christopher & Annan, Jeannie, 2016. "Can Employment Reduce Lawlessness and Rebellion? A Field Experiment with High-Risk Men in a Fragile State," American Political Science Review, vol 110(01), pages 1-17.

#HotLaborSummer: The Right to Strike and the Supreme Court’s Recent Challenge to Organized Labor

September 2023 | Floyd Velasquez (Associate Editor)

While many Americans are quick to adjust to the pace of societal advancement, the American workforce is not as prompt in adapting to society’s myriad of changes. Rapid technological advancements, coupled with the growing wage disparity between employers and employees, have sprouted issues that continue to plague the workforce. However, in attempts for these issues to be remediated, workers have left the workplace doors and found their way into the picket lines and are leaving demands atop many CEO’s desks, as workers have collectively organized to demand change. This past summer, organized labor has reclaimed its spot at the forefront of the American Agenda. Many labor unions, from the United Auto Workers to the Writers’ Guild of America, have gathered their members together in a fight for a fair workplace. However, amidst the many strikes that erupted over the summer of 2023, the Supreme Court decided on a case that holds the potential to upend organized labor, and erode the right to strike.

What does the 40-hour work week and a labor-less childhood have in common? They both can trace their origins to organized strikes. [1] [2] Striking, defined as an “organized and intentional stoppage or slowdown of work by employees”, is intended to result in employers reaching demands to better the conditions of work or the workplace overall. [3] The right to strike was born out of the National Labor Relations Act, which was passed by Congress and signed into effect by President Franklin D. Roosevelt in 1935. [4] Introduced by Senator Robert F. Wagner in the previous year, the act enshrines not only the rights of employees to form and join unions, but obligates employers to “collectively bargain”, or negotiate contracts, with them as well. [5]

 In addition, the act also makes clear distinctions between what makes a strike lawful and unlawful. The lawfulness of a strike typically depends on the “object”, or the purpose of a strike. There are two objects in which a strike can be categorized as lawful: “economic” strikers or “unfair labor practice” strikers. [6] “Economic” strikers are those whose object of their strike is for the purpose of obtaining an “economic concession,” which are economic benefits that employers yield to their employees as a result of a strike, typically coming in the form of an increase in wages, change in work hours, or better work conditions. [7] On the other hand, “unfair labor practice” strikers strike with the object of protesting an unfair labor practice, such as coercion or discrimination, that has been committed by their employer. [8] Outside of these two classes of lawful strikes, there are many different instances in which a strike is deemed unlawful. Strikes that counter the purpose of the two lawful strike categories, like a strike that is in favor of an unfair labor practice for example, are automatically unlawful. [9] In addition, strikes that violate a “no-strike” provision of a contract, that do not provide a minimum 10-day written notice to the Federal Mediation and Conciliation Service when protesting a health care institution, or aim to terminate or change an existing contract, are all examples of unlawful strikes. [10] An unlawful strike is also one in which strikers engage in misconduct throughout the course of their strike, such as blocking people from entering a struck plant, threatening violence against non-strikers, attacking management representatives, or damaging company property. [11] This specific unlawful element, striker misconduct, became the point of contention in the Supreme Court this past summer in Glacier Northwest v. International Brotherhood of Teamsters Local No. 174, creating complications to the right to strike.

In the summer of 2017, a bargaining agreement had expired between Glacier Northwest and their truck drivers’ union, the International Brotherhood of Teamsters Local Union No. 174. [12] In attempts to reach a new deal, negotiations went awry, prompting the union to go on strike on August 11th, 2017. [13] Glacier Northwest, a Washington-based company, sells batches of ready-mix concrete which the company then sends their truck drivers out to deliver in special trucks that hold the batches in rotating drums to prevent concrete from hardening. On that day, the truck drivers’ union agent signaled a work stoppage, prompting at least 16 drivers to return from their deliveries, leave their fully-loaded trucks, with the drums still spinning, and walk off the job. Glaciers then enacted emergency protocol, relying on nonstriking employees to unload the concrete and store it in specially-built bunkers, but the concrete had hardened despite their efforts and became useless. Glacier Northwest then sued the union for damages in both trial courts and the Washington State Supreme Court, both of which wrestled with one basic question: Does the National Labor Relations Act supersede state-court lawsuits against a union, protecting their right to intentionally destroy property while on-strike? While the lower courts answered in the affirmative, the Supreme Court decided otherwise.

Writing on behalf of the majority, Justice Amy Coney Barrett not only decided that the National Labor Relations Act (NLRA) does not preempt state-court lawsuits against a union from occurring, but takes the burden of decision upon themselves to decide the lawfulness of the strike misconduct – which ignores established precedent laid out in Garmon v. San Diego Building Trades Council (1959) that exclusively leaves this responsibility in the hands of the National Labor Relations Board (NLRB). [14] The opinion relies on specific language from the NLRA, which states that strikers who do not take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger, as a result of sudden work stoppage, are not protected under the NLRA. [15] If the facts put forth by Glacier Northwest are true, the majority finds that when the workers left their already-filled trucks, though concrete was still spinning in their drums, they had put Glacier Northwest’s property in foreseeable and imminent danger, as they knew the concrete is a product that can easily perish and can be usable only for a limited time in a truck’s rotating drum. Additionally, the majority asserts that despite the union being aware of the possibility that the concrete being left to harden in the trucks could pose serious damage to the delivery truck itself, they had coordinated a strike otherwise, further failing the “reasonable precautions” test. [16]

The majority also takes time to strike down some aspects of the Union’s submitted brief, in which they emphasize that the NLRA’s basic protection of the right to strike should “be given a generous interpretation,” and that “workers do not forfeit the Act’s protections simply by commencing a work stoppage at a time when the loss of perishable products is foreseeable.” [17] In regards to the union’s first point, the majority states that the union’s claim is an oversimplification of the NLRA, as they again use the “reasonable precautions” principle aforementioned in a way to affirm that striking as a way to support their own economic demands is simply not enough to shield them from consequence. [18] In refuting their second point, they state that the lifespan of wet concrete implies that it must be batched at a point when it is ready to be delivered, and that the drivers “prompted the creation” of the perishable product by reporting for duty, pretending that they would deliver the concrete, then walking off the job, which then put the trucks in harm’s way. [19] The union also mentions that the drivers had returned the trucks back to their facilities, and that all the drivers left the drums of their trucks still rotating, delaying the hardening process, and providing reasonable precaution. [20] The majority again, simply sees it differently – they claim that refraining from stealing an employer’s vehicle does not indicate reasonable precaution, and that the rotating drums prevent hardening for a limited time, not indefinitely, still falls short from passing their test. 

In concurring opinions, Justices Samuel Alito and Clarence Thomas write in reference to the principle laid out in Garmon, which lays out the burden in which the Court has taken in this case’s decision of the facts of the strike to specifically be the responsibility of the NLRB – the “Garmon preemption”. They go as far to say that Garmon should be revisited, aiming to remove the jurisdiction in which the NLRB has to be the primary arbiter in situations involving the lawfulness of strike misconduct.

It is this “Garmon preemption” in which Justice Ketanji Brown Jackson firmly grounds her dissent. Justice Jackson begins by affirming the lack of scope in which the majority has in this case, as Garmon asserts that a General Counsel, who generally supervises the NLRB’s processing of cases, [21] in filing a complaint to the NLRB, is reason enough to assume that a union’s conduct is “at least arguably protected by the NLRA.” [22] Where there is a complaint from the General Counsel, (as there is one in this case), any court should retire their evaluation. [23] Justice Jackson claims that this “Garmon preemption” prevents any right that the Court has to insert themselves as they did in the majority opinion in the first place, further stating that the Court “inappropriately weighing in” on this case has caused the majority to misapply the Board’s cases in a way that impedes “the Board’s uniform development of labor law and erodes the right to strike.” [24] Interestingly, Justice Jackson goes on to highlight the passage of the NLRA and its protections, which “marked a fundamental change in the Nation’s labor policies,” putting an end to the days when union activity was viewed as “a species of conspiracy” that wedged conflict between labor and management, and birthing the National Labor Relations Board, a “specific and specially constituted tribunal” in the process. [25] By emphasizing the integrity of the NLRB, she not only implies the special importance of the Board, but recognizes that their power is specifically granted to them, and not the courts – even the Supreme Court. In evaluating the perishable nature of the concrete as it pertains to the timing of the work stoppage, Justice Jackson looks to Glacier Northwest’s own submissions in Washington’s state court, which confirmed that the union had instructed the drivers to return their trucks back to the company premises with the concrete-filled drums still running once the strike had begun – precautions which provided remaining employees and management with “sufficient time” to address the situation and prevent harm to their property. In regards to the majority’s conclusion that the workers had “prompted the creation” of the perishable product by pretending as if they were going to perform their job responsibilities, Justice Jackson highlights their primary job responsibility, delivering wet concrete, calling the timing “unremarkable” as that is the nature of their responsibilities, and the perishable nature of the concrete did not give reason for the the employes to strike at any other time. [26] In Justice Jackson’s view, what Glacier Northwest seeks to do in this case is to shift the onus of protecting the employer’s property from damage or loss as a result of a strike unto the striking workers, beyond the “reasonable precautions” principle. [27] She underscores the fact that not only does this action undermine the intent of Congress in their vesting of power to the National Labor Relations Board, but that this also sets a “significant burden” on the right to strike. Justice Jackson writes, “Workers are not indentured servants, bound to continue working until planned work stoppage would be as painless as possible for their master. They are employees whose collective and peaceful decision to withhold their labor is protected by the NLRA even if economic injury results.” [28]

Labor justice in a post-Glacier legal landscape is not entirely secure. As Justice Samuel Alito and Justice Clarence Thomas provide ample support in their concurring opinion, an end to the “Garmon preemption” may be imminent. If the Supreme Court were to revisit Garmon, there is no assurance that the preemption – one of the powerful legal provisions that gives the National Relations Board their distinctive duty – would stay standing, eroding the power of the NLRB, a tribunal that has consistently stood at the forefront of issues related to organized labor which has protected the legal sanctity of the National Labor Relations Act, the creed in which the the right to strike originates. Furthermore, the overextension of the Court in which Justice Jackson centers her dissent suggests that the heavy hand in which they used to decide the matter of this case signals precedent for the Supreme Court to not put considerable respect on the decisions of Congress, nor on the integrity of administrative bureaucracy as they both stand today.

---

Sources

1. “Haymarket Affair: Topics in Chronicling America: Introduction.” Introduction - Haymarket Affair: Topics in Chronicling America - Research Guides at Library of Congress.

2. Schuman, Michael. “History of Child Labor in the United States—Part 2: The Reform Movement.” U.S. Bureau of Labor Statistics, January 2017.

3. “Strike.” Cornell Law School. Accessed September 25, 2023.

4. “1935 Passage of the Wagner Act.” National Labor Relations Board. Accessed September 25, 2023.

5. “1935 Passage of the Wagner Act.” National Labor Relations Board. Accessed September 25, 2023.

6. “The Right to Strike.” National Labor Relations Board. Accessed September 25, 2023.

7. Ibid.

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 21-1449 (2023)

13. Ibid.

14. Ibid.

15. Ibid

16. Ibid

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

21. “Who We Are.” National Labor Relations Board. Accessed September 25, 2023.

22. Glacier Northwest, Inc. v. International Brotherhood of Teamsters, 598 U.S. 21-1449 (2023)

23. Ibid.

24. Ibid.

25. Ibid.

26. Ibid.

27. Ibid.

28. Ibid.

Stopping “Woke” Culture at the Expense of Free Speech

September 2023 | Kevin Xu (Staff Writer) & Annie Vong (Editor-in-Chief)

As the 2024 election cycle ramps up, one of the main Republican contenders, Florida Governor Ron DeSantis, has waged a war on “woke” culture. Parts of “woke” culture that have been scrutinized are feminist studies, gender and sexuality studies, and black and african american studies. [1] In June 2021, the Board of Education in Florida banned Critical Race Theory, putting it in the same category as the Holocaust for being “theories that distort historical events.” [2] In March 2022, the Florida legislature passed the Don’t Say Gay Bill. [3] In January 2023, the AP course on African and American studies was banned in Florida high schools. [4]

In April 2022, the Individual Freedom Act, also nicknamed Stop Wrongs to Our Kids and Employees (WOKE) Act, was signed by DeSantis. With this act, any instruction that makes certain parties feel “personal responsibility” for historic events is illegal for businesses and teachers. The most widely advertised component of the Stop WOKE Act is its alleged ability to eliminate the teaching of Critical Race Theory (CRT) in K-12 education and corporate employee training programs in the state of Florida. [5] The acronym itself may be reminiscent of an old blocky television, but in this context, CRT refers to a legal theory used by university scholars to analyze how American laws and the systems that enforce them may contain remnants of our centuries-old racial discrimination that still affect the lives of people to this day. [6] For example, the study of CRT may entail discussing the history of how segregation led to redlining and the formation of “the hood,” as well as the widespread poverty caused by minority families’ inaccessibility to real estate loans and properties relative to white families. [7] In other words, CRT is a collegiate-level academic topic that isn’t typically a required component of elementary, middle, or high school curriculum, nor is it explicitly used in any type of corporate training.

However, proponents of the Stop WOKE Act argue that any teaching of American history or sociology that implies racism to be a form of systemic discrimination qualifies as CRT education, even if it’s not deliberately advertised as such. [8] However, the central tenets of CRT are to analyze the subtle traces of racism found in American politics and institutions beyond laws explicitly targeting Black populations. 

So, how does the Stop WOKE Act work? In 1992, a law called the Florida Civil Rights Act banned discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. [9] The Stop WOKE Act expands the definition of an unlawful employment practice to include instruction of any of the following concepts: [10]

1. “Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.

2. A person by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

3. A person’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex. 

4. Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex. 

5. A person, by virtue of his or her race, color, national origin, or sex bears responsibility for, or should be discriminated against or receive adverse treatment because of actions committed in the past by other members of the same race, color, national origin, or sex. 

6. A person, by virtue of his or her race, color, national origin, or sex should be discriminated against or received adverse treatment to achieve diversity, equity, or inclusion. 

7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sec. 

8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindedness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.”

However, if businesses do not create a diverse and inclusive environment, they could be violating Title VII of the Civil Rights Act of 1964, [11] attracting the attention of the Equal Employment Opportunity Commision (EEOC), leaving them in a legal limbo between state and federal law. 

The law was first challenged in Honeyfund et al. v. Ron DeSantis (2022) in Florida’s District Court in Tallahassee. [12] Some of the plaintiffs that challenged the law are Honeyfund, a company that manages honeymoon registries; Ben & Jerry’s, an ice cream company; and Collective Concepts, a workplace diversity consulting firm. [13] The preliminary injunction for this case states, “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.” [14] Additionally, the judge pointed out how the law deems instruction on race and gender permissible only if it is “objective.” The term “objective” [15] is not defined in the law, making it vague and open to be interpreted and twisted in a number of ways. [16]

The law was challenged in Pernell v. Lamb (2022), [17] with the plaintiffs, Pernell and American Civil Liberties Union (ACLU), arguing that it violates the 1st and 14th Amendments for both teachers and students. [18] The ACLU argued that the law violates the Equal Protection Clause in the 14th Amendment on the basis that it “was enacted with a racially discriminatory purpose and will have a disparate impact on Black educators and students.” [19] Additionally, the ACLU argues that the law violates the strict scrutiny standard set forth by the Supreme Court. Strict scrutiny is a standard that is applied in cases involving fundamental rights, such as freedom of speech. If the government is alleged to infringe on a fundamental right, the burden of proof falls on them, they must have a “compelling interest” for infringing on it, and the law itself must be “narrowly tailored.” The Court has allowed justifications for an infringement on free speech if it is in pursuit of national defense. For example, the Court allowed the government to crack down on speech that criticized the draft in the Vietnam War in United States v. O’Brien (1968) [20] and the Court upheld the decision to intern Japanese Americans citing the compelling governmental interest of national security in Korematsu v. U.S. (1944). [21] Florida would have to bring forth a compelling interest in order to keep the law. Strict scrutiny is a standard that is strict in theory, but fatal in practice. In November 2022, U.S. District Judge Mark E. Waller blocked the enforcement of the law with a preliminary injunction. [22] 

Simply put, any education, in school or the workplaces, that describes racism as anything other than the malicious acts of individuals, qualifies as CRT under the Stop WOKE Act. Educators would be allowed to teach that racism is bad and that racist people are bad, but not the idea that racism is inherent to certain institutions and laws. [23] The stated purpose behind this, of course, is evident in the wording of the law itself — to prevent the ‘guilt, anguish or any form of psychological distress’ of students. [24] In other words, proponents of Stop WOKE Act believe that CRT should be banned because they oppose the idea of racism perpetuated through systemic institutions and that it is something anyone can accidentally be a part of. They believe this is an idea that may cause people paranoia and distress in their daily lives. They favor the idea that racism is a malicious, individual act. In that sense, the Stop WOKE Act is a law intended to prevent panic and disorder in the same way that the First Amendment does not protect people who cry of fires in crowded theaters. However, those who oppose the Stop WOKE Act believe that the prevention of guilt and sadness among specific individuals is not enough reason to create an entire law controlling the contents of Florida state curriculum. 

Florida’s laws preventing the free speech of private companies and teachers, is one of the first dominos to fall. Other states are following suit to Florida’s educational censorship laws. Tennessee is one of many states to enact a law that restricts teachings on race and gender. Students in these states will grow up to find their recount of history as completely different from their peers. Ultimately, to neglect racism’s influence on modern-day institutions is to do a disservice to the communities that make up states like Florida. Laws that prevent schools from teaching students about the accurate history of this country means that the next generation will be doomed to repeat the worst parts of it. Though it’s technically passed into law, the Stop WOKE Act still faces heavy resistance every day from teachers confused by its vague wording and activists not willing to let education of true history be censored. The right to free speech is threatened everyday, with the government targeting activists, protestors, journalists, and teachers. Laws like this need to be challenged because they pose imminent danger to the right to free speech not only for this generation, but for generations that will live beyond the lifespan of governors like Ron DeSantis.

---

Sources

1. Harriot, Michael. “War on wokeness: the year the right rallied around a made-up menace.” The Guardian. December 21, 2022.

2. Ali, Safia Samee. “Florida Board of Education passes rule banning critical race theory in classrooms” NBC News. June 10, 2021.

3. Woodhouse, Britannia. “Saying ‘Gay’: Out of Class or Out of Mind?” UNLV Undergraduate Law Review. April 2022.

4. Contorno, Steve. “Florida gives its reasons for rejecting proposed AP African American Studies course.” CNN. January 20, 2023.

5. Reilly, Katie. “Florida’s Governor Just Signed the 'Stop Woke Act.’ Here’s What It Means for Schools and Businesses.” TIME. April 22, 2022.

6. Waxman, Olivia. “'Critical Race Theory Is Simply the Latest Bogeyman.' Inside the Fight Over What Kids Learn About America's History.” TIME. July 16, 2021.

7. Townsley, Andres, and Nowlin. “The Lasting Impacts of Segregation and Redlining.” Indy Midtown Magazine. July 16, 2021.

8. Khaled, Fatma. “DeSantis Bans CRT From K-12 Classrooms Despite Absence From 

   Curriculum.” Newsweek. April 22, 2022.

9. United States. Florida Legislature. Florida Civil Rights Act of 1992. Florida Statutes. Chapter 760, Section 760.01. Adopted 1992.

10. United States. Florida Senate. Individual Freedom Act. Florida Statutes. Adopted 2022.

11. United States. United States Congress. Title VII of the Civil Rights Act of 1964. Public Law 88-352. Statutes at Large 78 Stat. 241. Adopted 1964.

12. Honeyfund et al. v. Ron DeSantis. (2022) Case No.: 4:22cv227-MW/MAF.

13. Ibid.

14. Ibid.

15. Ibid.

16. Ibid.

17. Pernell v. Lamb (2022) Case No.: 4:22-cv-00304.

18. “Pernell v. Lamb.” American Civil Liberties Union. July 7, 2023.

19. Ibid.

20. United States v. O’Brien (1968). 391 U.S. 367.

21. Korematsu v. U.S. (1944). 323 U.S. 214.

22. Vile, John. “Stop W.O.K.E Act (Florida) (2022).” Free Speech Center at Middle Tennessee State University. August 10, 2023.

23.  Mudde, Cas. “What is behind Ron DeSantis’s Stop-Woke Act?” The Guardian. February 6, 2023.

24.  Smith, Kyle. “The White-Guilt Cult.” National Review. June 18, 2020.

Neo Brandeis and the Broader Role of Antitrust in Preserving Democratic Health

August 2023 | Otoniel Ramos (Staff Writer & Editor)

Hunched over the illumination provided by gas light, Louis Brandeis struggled. His eyesight had begun to worsen, the large volume of required reading for his legal studies and the poor illumination provided by those same gas lights had taken their toll. [1] In his legal practice, Brandeis would earn the label of “The People’s Lawyer,” successfully leading fights to maintain public control of Boston’s transportation, consolidate the utility companies in the area, and even began to promote the idea of state unemployment insurance. [2] The case of Muller v. Oregon (1908) would see Brandeis’ first appearance before the United States Supreme Court; it is before this courtroom that Brandeis would provide a brief relying more on social and scientific data than on legal citations. [3] Later known as the Brandeis brief, this style of briefing before the Court would play a major role in cases like Brown v. Board of Education (1954), [4] where the need to demonstrate the harm of segregated education was paramount. [5]

An important component of Brandeis’ advocacy revolved around his battle with J.P Morgan, at that time a railroad magnate—making fortunes reorganizing and consolidating railroad companies. Brandeis warned of the “Curse of Bigness” and the threat of concentrated economic power. [6] This article attempts to look at how the ongoing concentration of private economic power in our present decade has damaged the social, legal, and economic conditions necessary for a healthy democracy and the Neo-Brandeis. The past few decades have been marked by the massive growth in size and influence of tech corporations like Google, Meta, and Amazon, and the decrease in options available to consumers when it comes to grocery goods, event ticket providers, and even cable TV services. It is important to look at the effectiveness of current antitrust laws and enforcement as well as their role in this trend towards consolidated market power and the effects this has on levels of economic inequality, corporate political influence, and regulatory capture. 

While it may be true, as stated by author Herbert Hovenkamp that concentrations of economic power have been “...the greatest engines of economic growth in recent history,” [7] their impact on levels of economic disparities, corporate political influence, and regulatory capture do more harm than good to the social, legal, and economic conditions necessary for a healthy representative democracy.

Understanding the Neo-Brandeis Antitrust Movement

Neo-Brandeisian policy calls for a broader interpretation and stronger enforcement of antitrust laws. Neo-Brandeisian policy possesses with it a strong and binding commitment to reducing the growing power of large corporations, which undermine the political self-determination of a country’s citizens. [8] Looking past what has been the standard of assessing harm to consumers, such an approach to competition policy intends to mitigate damage concentrations of market power may also pose to smaller businesses, smaller farmers, and labor. [9] Importantly, looking past strictly economic factors for antitrust regulation, Neo-Brandeisian policy directs attention to more social and political considerations for the application of antitrust policy. [10] Antitrust, as the next section of this article will address, has always had shifting political perspectives—often guided by contemporary economic/labor conditions.  One cannot, however, disregard the intentions of antitrust legislation to subvert corporate political power. [11] In this regard, a neo-Brandeisian approach intends to impose a strict prohibition on the oligarchization of the country's political institutions. [12] Antitrust legislation in general has in one form or another been intended to function along some of the principles above mentioned. However, among the most unmistakably Neo-Brandeisian positions on competition policy are (1) a firm “opposition to economic concentration,” regardless of market efficiencies such a concentration would produce,  (2) an opposition of vertical integration (in general), and (3) perhaps among the most “radical” of Neo-Brandeisian positions is the support for collective action by small business and workers to balance bargaining dynamics. [13]  

Opposition to Neo-Brandeis

Ongoing debate exists around whether or not Neo-Brandeis is a viable or even the correct solution to the increased concentration of market power in today’s world. The most conservative of positions, with regard to the manner in which antitrust rules are applied today, is the position held by the ‘Chicagoans’ or the Chicago school of thought. [14] The more conservative position (not referring to partisan) argues that antitrust rules as they are today are enough and to redesign and reform them in their entirety poses harm to innovation, economic efficiency, and, interestingly, consumer welfare. [15] Much of the Chicago school of thought is influenced by the writings of Roberk Bork and Ward Bowman in ‘The Crisis of Antitrust’ (1965), in which the assertion is made that special considerations for small businesses or for the “inefficient” was not the intent of legislation such as the Sherman Act. [16] The strongest of assertions is that antitrust, as social policy, is incompatible with rules that promote competition. Such a balancing act and the courts’ attempts to fulfill the intentions of Congress would render antitrust cases a toss-up. [17] The view, however, of efficiency as the goal of competition, as many Neo-Brandeis scholars write, presents a “grotesque distortion of antitrust laws passed by Congress.” [18] A primary position in the advocacy of the Chicago School of Thought is to limit the power of antitrust law but to also limit the accessibility of relief for plaintiffs. [19] The middle ground, or “reform centrist camp,” as they are referred to by Professor Daniel A. Crane, seeks to address this aspect of antitrust, increasing the access of plaintiffs to relief. [20] Like the Chicago School, the reform centrist camp values efficiency and consumer welfare; [21] it is here where the biggest split between the reform centrists and Neo-brandeisians lies. While the regard for economic efficiency and consumer welfare is a strong position within the reform centrist camp, this same consumer welfare standard and the goal of protecting economic efficiencies are, for the Neo-Brandeisians, the fundamental problem with antitrust enforcement. [22]

The turn to the thoughts of Justice Louis Brandeis, then, is not unwarranted. Brandeis had, after all, spent most of his career practicing business law. He appreciated the goods a business could provide for its customers and the benefits of growth at a human scale, which at the time, that growth characterized American business and American farms. [23] Nonetheless, Brandeis was still weary of the ongoing trend of massive mergers and consolidations. In his battle against J.P Morgan and the New Haven Railroad, Brandeis railed against the problem of “excessive bigness.” [24] For Brandeis, the ongoing aggressive campaign to consolidate entire sectors of industry and these new businesses now characterized by massive mergers represented a “house of cards.” [25] Brandeis would later comment:

 “We are in a position, after the experience of the last twenty years, to state two things: In the first place, that a corporation may well be too large to be the most efficient instrument of production and of distribution, and, in the second place, whether it has exceeded the point of greatest economic efficiency or not, it may be too large to be tolerated among the people who desire to be free.” [26]

It is here where Neo-Brandeis ideas begin to take shape. That despite a large business being at the point of greatest economic efficiency, it is enough justification against its existence if its size, influence, and power is not tolerated by “people who desire to be free.” [27] Indeed the uniquely Neo-Brandeisian political considerations in competition law are influenced by Brandeis’s belief that concentrations of power either market or governmental were detrimental to a people’s freedoms and insensitive to their fears. [28]

Historical Context: Government-Business Relations and the Threat to Democracy

The legal history of antitrust in the U.S. began with the Sherman Antitrust Act of 1890. [29] Later acts such as the Clayton Act of 1914 [30] and the Federal Trade Commission Act of 1914 [31] represent a legislative effort to thwart the threat of concentrated market power and demonstrate a recognition these legislators had of the threat monopolistic power had on American liberties. [32] The threat to self-determination and the ability of Americans to decide the direction of their political future has always been an element of antitrust legislation. For example, The Celler-Kefauver Act passed in 1950 with the intention of strengthening the Clayton Act. [33] This act, often referred to as the “anti-mergers” act, was brought forward given its sponsors’ recognition that a lack of ability to control “economic welfare” was invariably linked to an eventual need for public seizure once a market concentration became too large and too powerful. [34] Such a seizure, warned Senator Kefauver, resulted in a Fascist state or the nationalization of industries. [35]

However, the history of American opinion on antitrust has often been influenced by the economic and labor conditions of the time. For instance, one can look at the Supreme Court from the end of the 19th and start of the 20th century. The Supreme Court of that era, according to author Robert G. McCloskey, had been hijacked by and made sacrosanct the principle of laissez-faire to the extent it was willing to question the legislature on issues of social policy. [36] The Lochner era, for example, represents an era of jurisprudence marked by arbitrary restrictions against government regulation. [37] Cases like Lochner v New York (1905), in which the Court struck down a maximum hour law for bakers, cited a new principle of “liberty of contract” between an employee and their employer. A later case, Bunting v. Oregon (1917), [38] illustrated these arbitrary restrictions clearly. [39] The case of Bunting, which posed a similar question before the Court— a maximum hour law for men and women was challenged on the basis that such a law infringed on the “liberty of contract.” The law in Bunting was upheld and decided entirely differently from Lochner. [40] The Court, essentially creating a parallel and dual precedent, fashioned for itself the tools necessary to decide as it wished on questions of regulation. While these cases represented a broader trend of what interpretation of the Due Process clause of the 14th Amendment would begin to mean, the commerce clause had already, in essence, been hijacked by the ideologies of laissez-faire. [41] The case of U.S v. E.C Knight Co. (1895), for example, brought before the Court a question surrounding the application of the Sherman Antitrust Act against E.C Knight, a company with control of 98% of sugar refining in the country. [42] In its decision, ruling against the government, the Court ruled that (1) manufacturing was not commerce and (2) that the Sherman Antitrust Act “did not reach the admitted monopolization of manufacturing.” [43]

In stark contrast to said era, the period of World War II and up the 1960s was marked by a much different understanding of the role of antitrust. Congressmen such as Carey Estes Kefavuer understood that the Nazi totalitarianism that had taken hold in Germany could be attributed to the concentrations of economic power that had taken place in the preceding decades. [44] Such was the case that antitrust laws by the 1960s had been proclaimed an essential part of any functioning democracy. [45] If one takes a look at the case of United States v. Columbia Steel. Co (1948), [46] Justice Douglas’s words, in his dissent, paint a clear picture of what antitrust laws meant during that era and what they were intended to accomplish:

“The philosophy of the Sherman Act is that it should not exist, for all power tends to develop into a government in itself. Power that controls the economy should be in the hands of elected representatives of the people, not in the hands of an industrial oligarchy. Industrial power should be decentralized. It should be scattered into many hands so that the fortunes of the people will not be dependent on the whim or caprice, the political prejudices, the emotional stability of a few self-appointed men. The fact that they are not vicious men but respectable and social-minded is irrelevant. That is the philosophy and the command of the Sherman Act. It is founded on a theory of hostility to the concentration in private hands of power so great that only a government of the people should have it.” 

It becomes apparent then that the common law history of antitrust is a substantial aspect of it. [47] The Chicago School of thought during the late 70s was able to convince the Supreme Court, based on its rulings in the 1940s and 50s, to “correct course” and rely on strictly economic factors—arguing that this posed no threat to market power. [48] Evidence of this is laid out in the case, Morrison v. Murray Biscuit Co. (1986), [49] in which Judge Posner asserts:

“To answer a question about antitrust as about any other field of law, it is always helpful and often essential to consider what the purpose of the law is. The purpose of antitrust law, at least as articulated in the modern cases, is to protect the competitive process as a means of promoting economic efficiency.” [50]  

This trend from the 1970s to today, largely influenced by the Chicago school of thought and the broader Adam Smith laissez-faire ideals, marks once again a drastic shift in our interpretation of antitrust law. For Federal Trade Commission (FTC) chair Lina Khan, “We have shifted from a republican theory of antitrust to a neoliberal one.” [51] For example, in a more recent case, Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, [52] a case on Verizon’s refusal to deal with a competitor, Justice Scalia’s words drastically move away from those that Justice Douglas had delivered some 50 years ago. In his opinion, Justice Scalia contends that the ability of a company to hold monopolistic power is (1) “not unlawful” but also that it is (2) “an important element of the free-market system.” [53] Some may, rightfully, make the claim that these are the words of one of the most conservative Justices that has sat on the Supreme Court, [54] but the ruling in this case, however, was unanimous. [55] Scalia’s opinion was additionally joined by 5 other Supreme Court Justices, including Breyer and Ginsburg. [56] In his opinion, Scalia adds:

The opportunity to charge monopoly prices—at least for a short period—is what attracts “business acumen” in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct. [57]

This trend then, away from the view that concentrations of economic power pose a substantial threat to people’s freedom and the social and economic conditions of functioning democracies, threatens to replace the quite clear intentions of Congress, with an economic interpretation of the benefits a monopoly might provide. [58] [59] Legislative history up until the 1950s, with the amendment to Section 7 of the Clayton Act, had unequivocally rebuked the elimination of small business and entrepreneurship at the hands of concentrations of power and massive corporations. [60] Such a shift marks a stark disregard, not only for this legislative history, but for its intention to subvert the threat of concentrations of private market power to democratic health.

The Neo-Brandeis Approach: Addressing the Harms of Centralized Private Power

The departure of the Neo-Brandeisian approach from a strict emphasis on the standard of consumer welfare and economic efficiency, as the courts have largely established, is the strongest indicator of its departure from traditional approaches to antitrust. This position, however, is not without reason. Economic prosperity has not entirely followed an increase in market power since the broad adoption of the Chicago school of thought within courts. [61] It is also the case that the U.S. has additionally seen a decline in the growth of private labor productivity and multifactor productivity (MFP) since the start of the 21st century. [62] This report, in attempting to discern a decline in productivity, recognizes “barriers to competition” among other factors as an explanation for a decline in concentrated productivity growth. [63] It is clear that the allowance of market concentration has resulted in quite the opposite of what the Chicago school had intended. The idea that market forces and laissez-faire are a safeguard against monopoly and lead to economic efficiency, which should be rewarded and not stifled, leaves much to desire in the form of cooperative evidence. [64]    

Then, it becomes useful to look at precedent, which Neo-brandeisians have looked to repeal. With the Chicago school having recognized the importance of consumer protection, it would, of course, make sense for practices such as predatory pricing, refusal to deal, and exclusionary trade practices, among others, to be rightly considered to have met the burden of harm to consumers. [65] Predatory pricing involves the reduction of prices to a level unsustainable for competitors, in turn eliminating competition, expanding market power of a corporation and profit motivation for the practice. [66] The most recognizable example of this phenomenon is Amazon, which began much of its early years without turning a profit. [67] Amazon shareholders valued growth and integration into different sectors over profit. The idea was that such a practice would inevitably yield the profits they had hoped for.  

A protection against predatory pricing, however, is not the precedent set by the case Brooke Group Ltd. v. Brown & Williamson Tobacco Corp. (1993), [68] which Neo-brandeisians have called for legislative measures in efforts to repeal. [69] Brooke, contrary to the intentions of legislation such as the Sherman Antitrust Act, set two required bars a successful claim of predatory pricing must meet. First, the need to demonstrate the price set by the defendant or competitor was below cost, and second, the requirement that the plaintiff establish a “reasonable prospect” of recoupment by the defendant. [70] The Court, in its justification for setting up the below cost pricing requirement, argued as follows: that price cuts are “the means by which a firm stimulates competition,” and that so long as price was above cost, it would remain “desirable” and improve consumer welfare. [71] To condemn a price cut would “chill” the practice of cutting prices. [72] The Court argued that in ruling against Brown & Williamson Tobacco Corp. for predatory pricing, it would create potential for ”false condemnation” and discourage companies from undertaking price cuts. [73] This logic, as some Neo-brandeisians have pointed out, fails to consider that such a price cut with the potential to exclude a higher cost rival undermines competition. [74] The desirability of the price cut, which “antitrust laws are designed to protect,” as the Court ruled, is completely undermined by the elimination of competition whose presence would have acted as a check on the larger firm's prices. [75]

In turning to exclusionary and restrictive trade practices, the precedent of Ohio v. American Express Co. (2018) [76] also leaves much to desire for the Neo-brandeisians. [77] The case involved the anti-steering practices of credit card companies and their effects on trade restrictions, which came under scrutiny of the Sherman Antitrust Act. [78] The Court, in deciding this case, argued that because American Express and other credit card companies operate in two markets, that being the market for merchants and the market for cardholders, the burden was on the government to prove that the actions of Amex were anti-competitive in both (which they did not). [79] This ruling in setting up the “two-sided markets construct” would now require an antitrust plaintiff to establish the harm of anti-competitive behavior across multiple markets. [80] Neo-Brandeis scholars have contended that this precedent has important implications for the growing issue of platform monopolies. They argue that the same exclusionary practices the credit card companies were engaging in are similar to the ones adopted by Google, Amazon, Meta, and Apple to obtain their monopolistic power. [81]

The decision in Ohio, however, for even those in the moderate or reformist camp, represents a lack of recognition in the courts of an ever increasing market problem. [82] The inaction and the reluctance to revamp competition rules disregards the feelings around the country in favor of strong antitrust rules and enforcement. [83] The predatory pricing and exclusionary practices which have become widely adopted among the tech giants of today are a clear reflection of this inaction. Courts have increasingly adopted the mindset that judicial errors are much harder to correct than the anticompetitive behavior of a corporation. [84] [85] As Justice Neil Gorsuch during the oral argument for Ohio put it: 

“Why shouldn’t we take Judge Easterbrook’s admonition seriously, that judicial errors are a lot harder to correct than an occasional monopoly where you can hope and assume that the market will eventually correct it? Judicial errors are very difficult to correct.” [86]

Precedent over the past 50 years, despite the perception of judges as to the effects (of it) and the increasing problem of market concentration, has thus left the courts with only the option of pushing competition rules further into the non-interventionist path. [87] Then, taking a look at the precedent set to this point, small steps can be taken towards protecting economic fairness and countering the effects of concentrated private power. 

Contemporary Challenges and the Neo-Brandeis Response

Today, the purpose of antitrust laws, as they have been established by recent precedent, has been the promotion of economic efficiency. [88] But is this purpose and application of antitrust laws up to the task of addressing some of the important contemporary issues we face today? Among the issues that antitrust laws and their enforcement must begin to address are: (1) the increases in globalization and interdependence and the jurisdictional issues that accompany that, (2) the rise of platform monopolies, and (3) the protection of privacy and user data on digital platforms. First, the increase in globalization poses a very interesting issue of extending a nation's antitrust policies beyond its borders. In some instances, such an expansion of antitrust laws and the attempted application of said laws outside a nation's borders raises questions of national sovereignty. [89] For antitrust cases involving market integration across borders, the most pertinent question that arises is how to define the “relevant market.” [90]

The rise in platform monopolies has also seen increased attention, especially as public scrutiny of the tech giants of today has taken hold. Platform monopolies of our time, have had the unique advantage of benefitting from a lax understanding of antitrust laws set forth by the Chicago school of thought. [91] In recent years, they have been able to “exploit their positions as providers of multiple essential services to bankrupt, supplant, or sideline rivals in every market in which they operate.” [92] Microsoft for example has, for the past year, been the target of FTC action against its acquisition of Activision Blizzard Inc. [93] The FTC alleges that if the merger goes through, Microsoft would possess the sole ability to manipulate Activision prices, game experience on competing platforms, and withhold Activision content “from competitors entirely.” [94] In a view to a future where the issues of globalization and platform monopolies go hand in hand, it ends up being the case that the U.S., burdened with its current antitrust framework, will have to wait and take note of the manner in which the European Union and United Kingdom approach the regulation of platform monopolies. [95] Similarly, as discussed earlier with regard to the precedent set by Ohio v. American Express (2018), [96] the issue of privacy also comes up. The argument has been made by Neo-brandeisians, that antitrust enforcement against the exclusionary practices of the same digital platforms mentioned can, as a tool, serve the protection of privacy. [97] They argue that the monopolistic barriers posed by the platform monopolies of today impede competitors that are “pro-privacy” from competing. [98] Indeed protection against privacy violations, access to diverse essential services, and the integration of markets across borders poses a direct impact on the direction a population's political future takes.   

Conclusion

There has been a rise in centralized private power, as the consequence of modern case law on the subject of antitrust laws; most will agree this poses a significant threat to the social and economic conditions necessary for the functioning of a democracy. The work, advocacy, and fight against concentrated economic power of Justice Louis Brandeis has served as a guide to the Neo-Brandeisian movement, which today seeks a broader and stronger enforcement of competition law. This movement, despite its noble intent, is not without its detractors and those who argue for the necessity of an antitrust enforcement focused solely towards the goal of economic efficiency and the protection of consumers. The history of antitrust legislation, however, makes it clear that the role of antitrust has always been the protection of democratic principles and of a population from the harms of concentrated economic power. The departure then, from strict economic considerations and the consumer welfare standard of the Neo-Brandeis movement is in line with this early anti-monopolistic movement. The Neo-Brandeis approach with its emphasis on social and political considerations presents a path forward, including for the complex contemporary issues presented above. The goals of protecting economic fairness, small business, and labor remain in line with the broader goals of safeguarding democracy and a people’s right to self determination against concentrated economic power. 

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Sources

1. Vile, John R., “Great American Judges: An Encyclopedia.” (Santa Barbara: ABC-CLIO Inc., 2003). 122.

2. Ibid.

3. Muller v. Oregon, 208 U.S. 412 (1908).

4. Brown v. Board of Education, 347 U.S. 483 (1954).

5. Finkelman, Paul, “Encyclopedia of African American History, 1896 to the Present from the Age of Segregation to the Twenty-First Century.” Oxford University Press (2009).

6. Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. 2018.

7. Hovenkamp, Herbert, “Antitrust and Platform Monopoly.” The Yale Law Journal Vol.130 (June 2021) 1952-2273.

8. Congressional Record. December 12, 1950 Vol. 96, Part 12 — Bound Edition. 81st Congress - 2nd Session.

9. Baker, Jonathan B., “Finding Common Ground Amongst Antitrust Reformers.” 84 Antitrust Law Journal No. 3 (2022).

10. Pitofsky, Robert. “The Political Content of Antitrust.” University of Penn Law Review. Vol.127. 1051-1075.

11.  United States Congress. Senate. Sherman Antitrust Act. 26 Stat. 209. 15 U.S.C. §§ 1–7. 51st Cong.

12. Pitofsky, Robert. “The Political Content of Antitrust.” University of Penn Law Review. Vol.127. 1051-1075

13.  Baker ABA

14. Shapiro, Carl. “Antitrust: What Went Wrong and How to Fix It.”Antitrust, Vol. 35, No. 3, (Summer 2021:) 33-4

15.  Crane, Daniel. “On antitrust and big tech, Biden must return to his centrist roots.” The Hill. April 13, 2021.

16. Bork, Robert H. and Bowman Jr., Ward S., “The Crisis in Antitrust.” Columbia Law Review Vol. 65, No. 3 (March 1965), 363-376.

17. Ibid.

18. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018).

19. Shapiro, Carl. “Antitrust: What Went Wrong and How to Fix It.”Antitrust, Vol. 35, No. 3, (Summer 2021:) 33-45.

20. Crane, Daniel. “On antitrust and big tech, Biden must return to his centrist roots.” The Hill. April 13, 2021.

21. Ibid.

22. Carl Shapiro. “Antitrust: What Went Wrong and how to Fix it,” Antitrust, Vol. 35 No.3 Summer 2021., 33

23.  Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. 2018.

24. Ibid.

25. Ibid.

26. Brandeis, Louis. 1911.

27. Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. 2018.

28. Ibid.

29. “The Sherman Antitrust Act.” 26 Stat. 209, 15 U.S.C. §§ 1 – 7. (1890).

30. “The Clayton Antitrust Act” 15 U.S.C. 12-27. (1914)

31.  “The Federal Trade Commission Act” 15 U.S.C. §§ 41-58 (1914).

32. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018). 

33. Ibid.

34. “The Celler-Kefauver Act” P.L. 81-899 (1950).

35. United States Congressional Record. 1950. No. 16,452. 

36. McCloskey, Deirdre and DeMartino, George, “The Oxford Handbook of Professional Economic Ethics” Oxford University Press. 2016.

37. Ibid.

38. Bunting v. Oregon. 243 US 426 (1917).

39.  Lochner v. New York. 198 US 45 (1905).

40. Bunting v. Oregon. 243 US 426 (1917).

41. McCloskey, Deirdre and DeMartino, George, “The Oxford Handbook of Professional Economic Ethics” Oxford University Press. 2016.

42.  United States v. E.C. Knight Co. 156 US 1 (1895).

43. Ibid.

44. Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. 2018.

45.  Ibid.

46. United States v. Columbia Steel. Co. 334 U.S. 495 (1948).

47. Shapiro, Carl. “Antitrust: What Went Wrong and How to Fix it,” Antitrust, Vol. 35 No.3 Summer 2021., 33.

48. Ibid.

49.  Morrison v. Murray Biscuit Co., 797 F.2d 1430 (1986).

50.  Ibid.

51. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018).

52. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko. 540 U.S. 398, 407 (2004).

53.  Ibid.

54. Totenberg, Nina. “Justice Antonin Scalia, Known For Biting Dissents, Dies At 79.” NPR. February 13, 2016.

55. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko. 540 U.S. 398, 407 (2004).

56. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018).

57.  Verizon Communications Inc. v. Law Offices of Curtis V. Trinko. 540 U.S. 398, 407 (2004).

58. Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. 2018.

59. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018).

60.  Pitofsky, Robert. “The Political Content of Antitrust.” University of Penn Law Review. Vol.127. 1051-1075.

61. Baker, Jonathan B. “Finding Common Ground Among Antitrust Reformers.” Antitrust Law Journal No. 3. Vol. 84. 705-751. (2022).

62. Weinstock, Lida R. “Introduction to U.S. Economy: Productivity.” Congressional Research Service. January 3, 2023.

63. Ibid.

64.  Shapiro, Carl. “Antitrust: What Went Wrong and how to Fix it,” Antitrust, Vol. 35 No.3 Summer 2021., 33.

65. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

66. Bolton et. al, “Predatory Pricing: Strategic Theory and Legal Policy.” Justice.gov.

67.  Khan, Lina M. “Amazon’s Antitrust Paradox.” Yale Law Journal. Vol. 126. No. 3. (2017).

68. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993).

69. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

70.  United States v. Vulte, 233 U.S. 509 (1914).

71. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993). 

72. Ibid.

73. Hemphill, Scott C. and Weiser, Phillip J., “Beyond Brooke Group: Bringing Reality to the Law of Predatory Pricing.” Yale Law Journal. Vol. 127, No. 7. (2018).

74. Ibid.

75. Ibid.

76. Ohio v. American Express Co. 585 US _ (2018).

77. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

78. Ohio v. American Express Co. 585 US _ (2018).

79.  Ibid.

80. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

81. Ibid.

82. Baker, Jonathan B. “Finding Common Ground Among Antitrust Reformers.” Antitrust Law Journal No. 3. Vol. 84. 705-751. (2022).

83.  Ibid.

84.  Ohio v. American Express Co. 585 US _ (2018).

85. Khan, Lina M. “The Ideological Roots of America’s Market Power Problem.” 127 Yale L. J. F. 960 (2018).

86. Ohio v. American Express Co. 585 US _ (2018).

87.  Baker, Jonathan B. “Finding Common Ground Among Antitrust Reformers.” Antitrust Law Journal No. 3. Vol. 84. 705-751. (2022).

88. Wu, Tim. “The Curse of Bigness Antitrust in the New Gilded Age.” Columbia Global Reports. (2018).

89. Evenett et. al. “Antitrust Policy in an Evolving Global Marketplace.” Brookings. 1-27. (2004).

90. Ibid.

91. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

92.  Ibid.

93.  “FTC Seeks to Block Microsoft Corp.’s Acquisition of Activision Blizzard, Inc.” Federal Trade Commission. (December 8, 2022).

94.  Ibid.

95. Shapiro, Carl. “Antitrust: What Went Wrong and How to Fix it,” Antitrust, Vol. 35 No.3 Summer 2021., 33.

96.  Ohio v. American Express Co. 585 US _ (2018)

97. Hubbard, Sally. “Proposals to Strengthen the Antitrust Laws and Restore Competition Online.” Testimony before the 115th Congress: House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law (2020).

98.  Ibid.

An End to Affirmative Action

July 2023 | Mary Giandjian, Kira Kramer (Staff Writers & Editors)

The June 29th SCOTUS decision of Students for Fair Admissions (SFFA), Inc v. President and Fellows of Harvard College striking down affirmative action brought forth nationwide controversy regarding the basis of discrimination. The end to affirmative action, a government-approved and voluntary private program granting opportunities to minorities, alters the path and definition of legal discrimination defined in previous SCOTUS decisions. Furthermore, the Court’s opinion delivered on June 29th, 2023 was divided among a majority, a concurring, and a dissenting opinion. The varying conclusions drawn by SCOTUS, while a current topic of discussion for the American public, can be clarified with historical relevance and current implications. 

An assessment of the recent decision must first recognize the program now struck down, affirmative action. Affirmative action itself is a proactive devotion of resources in order for individuals and groups to not be discriminated against on the basis of gender or ethnicity. However, with regards to the education sector, affirmative action takes place in the college admission process as institutions consider an applicant’s race to be a “plus factor.” [1] Meaning, the race-sensitive college admission process, while evaluated on academic, extracurricular, and personal criterion, has also allowed applicants’ status based on race. 

The admission process of Harvard College, for example, was detailed in the opinion of the Court delivered for Students for Fair Admissions, Inc v. President and Fellows of Harvard College (2023). Every received application is “screened by a ‘first reader,’” who will assign the applicant a score in six categories: academic, athletic, extracurricular, school support, personal, then overall. [2] Ratings range “1” to “6,” one being the best and six being the worst an applicant can receive. A rating of “1” signifies, for example, perfect standardized test scores or “truly unusual achievement” in extracurriculars. [3] After the application is first read, the application is forwarded to a subcommittee, then to the full committee of forty members. The opinion of the Court writes, “at the end of the full committee meeting, the racial composition of the pool of tentatively admitted students is disclosed to the committee.” [4] Student admission is concluded at the “lop” stage in which the final cut is made, considering “legacy status, recruited athlete status, financial aid eligibility, and race.” [5] The duration of Harvard College’s admissions emphasizes race as a determining factor, especially for African American and Hispanic applicants. [6]

Before addressing the majority and dissenting opinions of the Court, there are several relevant cases that informed the precedent and shaped the Court’s decisions. The cases and legislation most relevant to both the majority and minority opinions include the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, Plessy v. Ferguson (1896), Brown v. Board of Education (1954), Regents of Univ. of Cal. v. Bakke (1978), and Grutter v. Bollinger. Understanding the precedent set in these cases, as well as their implications for how the law has progressed since then, is integral to understanding how the concurring and dissenting opinions were formed. 

While highlighting the case of Harvard College, the opinion also references the matter of the Students for Fair Admission, In. (SFFA) against the University of North Carolina (UNC), a case in which the applicant’s race is a factor of consideration. As such, the main constitutional issues at hand in Students for Fair Admissions, Inc (SFFA) v. President and Fellows of Harvard College (2023) and Students for Fair Admissions v. University of North Carolina (2023) is whether or not Harvard and UNC violated the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. The Equal Protection Clause explains that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [7] Similarly, Title VI of the Civil Rights Act of 1964 demands that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” [8] The Court’s precedence asks that laws “operate equally upon all.” [9] The opinions analyze if and or how these elite universities’ admissions programs violated these legal statutes. 

Outside of the statutes being contested, there are many issues of case law that pertain to the Court's decision and provide context and precedence for legal analysis. In Plessy v. Ferguson (1896), the Court upheld the “Separate Car Act”, which insisted that 14th Amendment established equality of the races, but “held that separate treatment did not imply the inferiority of African Americans.” [10] While the Court has expressed grievance over this falsely “color-blind” decision, it is applicable to the decision about admissions procedures in deciding whether or not affirmative action perpetuates race-based separation. Brown v. Board of Education (1954) then reversed the precedent set in Plessy when it was determined that “separate but equal” educational facilities created for African Americans were unequal and in violation of the Equal Protection Clause of the 14th Amendment. [11] These two decisions provide context in which the Court deems affirmative action to be an appropriate or inappropriate course of action under the guise of the Constitution. 

Understanding the specifics of the legality of affirmative action can first be identified in Regents of Univ. of Cal. v. Bakke (1978). Interestingly enough, there was no majority opinion decided for this case. By and large, the Court looks to Justice Lewis F. Powell’s decision when deciding the constitutionality of affirmative action. Powell argued that the rigid use of racial quotas employed by the school did indeed violate the Equal Protection Clause, but Powell joined the opinion of four other justices in saying that the use of race as a “criterion in admissions decisions was constitutionally permissible.” [12] This case allows affirmative action only where the school’s interest is sufficiently compelling and constitutionally permissible. The most compelling interest found by Justice Powell in this case was “obtaining the educational benefits that flow from a racially diverse student body.” [13] This case also mandated that race “could operate only as a ‘plus’ in a particular applicant’s file” and that it must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” [14]  Regardless, lower courts struggled in legal decisions around affirmative action when the Supreme Court had supplied such a fractured decision, as described in the majority opinion delivered by Chief Justice Roberts. [15]

Despite the Bakke ruling, the matter pursued nonetheless in Grutter v. Bollinger (2003). In this case, the Court endorsed Justice Powell’s view and provided that universities were allowed affirmative action, but were limited in the means in which they could pursue it. The school could not “establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks,” “insulate applicants who belong to certain racial or ethnic groups from the competition for admission;” nor could it desire for “some specified percentage of a particular group merely because of its race or ethnic origin.” [16] These specifications aimed at preventing two dangers: illegitimate stereotyping and the idea that race would be used not as a plus, but as a negative to discriminate against the racial groups that were not the beneficiaries of race-based preference. [17] Lastly, Grutter suggested that race-based admissions programs must end. It insinuated that race based preferences should end within 25 years from which Grutter was decided, which would be around the year 2028. 

Fisher v. University of Texas is another integral case that set precedent for affirmative action. In this case, Abigail N. Fisher, a Caucasian female, applied to the University of Texas in 2008. At this time the University of Texas implemented specific policies around race-based admissions policies. The policies in place admitted all students in the top ten percent of their in-state high school class regardless of race. Any student not in the top ten percent would be subject to policy that considered race as a factor. Fisher was not in the top ten percent of her class and the University of Texas denied Fisher's application. [18] The Court ruled in favor of Fisher stating that the lower courts did not “verify that the University policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits.” [19] This case did not overturn the precedent set in Grutter but augmented it by saying that such cases are reviewable under the Fourteenth Amendment. However, they must be reviewed under a standard of strict scrutiny to determine whether the policies are “precisely tailored to serve a compelling governmental interest.” [20] They did not rule on the constitutionality of affirmative action in this case, but set parameters that the policies must be guided by a compelling interest, which has been determined by Justice Powell’s opinion. 

The majority opinion for Students for Fair Admissions, Inc v. President and Fellows of Harvard College (2023) was written by Chief Justice Roberts, and joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. The majority opinion ruled to overturn affirmative action using four main reasons: that affirmative action programs “ lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints'' which stand in violation of the demands set in Grutter. [21] The Court felt that Harvard and UNC’s identified goals and benefits pertaining to the use of affirmative action were not compelling enough to be subjected to meaningful judicial review. These goals were as follows: (1) “training future leaders in the public and private sectors;” (2) preparing graduates to “adapt to an increasingly pluralistic society;” (3) “better educating its students through diversity;” and (4) “producing new knowledge stemming from diverse outlooks.” [22] UNC provided similar goals. The Court felt that these goals were not measurable nor sufficient. 

Therefore, SCOTUS concluded that the holistic approach by admissions programs fail to establish a meaningful connection between the means in which they employ their program and the goals they pursue in turn employing race in a negative manner. The Court argues that Harvard’s race categories are overbroad or underinclusive which the Court feels undermines the respondents’ goals of being “broadly diverse.” Similarly, the Court believes that, by accepting race-based admissions programs in which some students may obtain preferences on the basis of race alone, the programs would tolerate stereotyping. They believe that the universities may not operate programs on the belief that “minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” [23] Justice Roberts argues that when a university admits students on the basis of race, that they are assuming that students of a particular race think alike. [24] They claim that Harvard’s admissions program rests on the idea that a minority student usually brings something that a white person cannot offer, rather than by the student’s own merit or essential qualities. Lastly, because Grutter specified that affirmative action must have an end in sight, Harvard’s admissions program lacks a “logical end point.” [25]

Conversely, the dissent focuses on the protections that the Fourteenth Amendment does secure, as well as the subsequent decisions in Brown. Justice Sotomayor produced the dissent with whom Justices Kagan and Jackson joined. The dissent begins with a detailed history of the discriminatory practices upheld by the United States since the country's founding, as well as heinous laws that perpetuated such inequities. Sotomayor explained that the ruling in Brown itself was a “race-conscious decision” decided unanimously by the Court that emphasized the importance of equitable education in American society. When Brown was first decided, many following desegregation cases aimed at achieving an educational system that ensured racial equal opportunity. Even after the doors were opened for children to attend all schools on a race-blind basis, de facto segregation still persisted when students of any particular race did not leave the school systems they were previously attending (noting that 85% of Black children in the school system were still attending an all-Black school). [26] The Court upheld in several court cases that “affirmative steps are constitutionally necessary when mere formal neutrality cannot achieve Brown’s promise of racial equality.” [27] The dissent argues that racial “indifference” is not enough, and that the ultimate goal is racial equality of opportunity. 

Furthermore, in the Fisher litigation, the Court twice reaffirmed that a limited use of race in college admissions is constitutionally permissible if it satisfies strict scrutiny. When universities pursue racial diversity, as well as the dissemination of knowledge and opportunity, it acts as a compelling interest in student body diversity that is grounded in the Court's equal protection jurisprudence. [28] The majority claimed that the dissenting  “uphold[s] respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures''. [29] In response, the dissenting then references statistics that refute the majority’s claim by providing that affirmative action is not a remedy to past societal discrimination, but rather to address current societal discrimination that is perpetuated today.The dissent cites statistics explaining that, today, half of all Latino and Black students attend racially homogenous schools with a 75% minority enrollment, and schools with 90% to 100% minority student enrollment are on the rise. [30]  

Coupled with tax-based school system funding and residential segregation, minority communities often have less robust school systems and fewer educational opportunities. In North Carolina, where UNC is located, racial minorities are disproportionately affected by a lack of equal access to educational opportunities, which results in fewer underrepresented students applying to university, let alone elite universities like UNC and Harvard. Black and Latino applicants combined only account for 20% of domestic applicants each year, and that does not reflect the percentage of students that are accepted. The dissent cites statistical analysis from the Court of Appeals describing how race representation has increased over time at Harvard, including in the Asian community, since the implementation of affirmative action. More specifically, “the admission rates of Asian Americans at institutions with race-conscious admissions policies, including at Harvard, have ‘been steadily increasing for decades.’’ [31]

The same data was used to discuss the ramification of eliminating affirmative action which would at times cut the underrepresented minority population by up to 72%. This is supplemented by the data from California showing the rates of admitted minority students at elite and non-elite universities in the state before and after the prohibition of race-conscious admissions in 1996. The chart developed and cited by the majority does not consider the number of applicants from each racial group that applied, rather, just the statistics of those that were accepted. This fails to compare the size of the application pool of each minority group proportionate to the amount that was accepted from those groups, which the dissent claims omits the relevant data in the record, is misleading and ignores broader context.

This Court’s decision has overturned decades of precedence and redefines racial segregation in the eyes of the law. Justice Thomas equates affirmative action in higher education with segregation, arguing that it denotes Black and Latino students as inferior. The dissent refutes this argument, saying that this is Justice Thomas’s own stigma, and cites research that studied “seven law schools showing that stigma results from “racial stereotypes that have attached historically to different groups, regardless of affirmative action’s existence.” [32] Associating race-conscious admissions policies with segregation trivializes the horrific effects of segregation and threatens the transformative legacy of Brown. 

The Equal Protection Clause evidently proves to hold a significant role in the application of case law in the opinions delivered by the Court, making clear the differences in each Justices’ interpretation. The majority opinion delivered by Chief Justice Roberts, which notably opposed Harvard’s application of affirmative action,  maintained the position that the admissions process in which Harvard applicants underwent was, in fact, a violation of the Equal Protection Clause of the 14th Amendment. Before the opinions were delivered, the case syllabus establishes that, “eliminating racial discrimination means all of it,” and cites Yick Wo v. Hopkins (1986), “the Court has held that the Equal Protection Clause applies ‘without regard to any differences of race, of color, or of nationality’– it is ‘universal’ in [its] application.” [33] Per Justice Roberts, the lack of “sufficiently focused and measurable objectives,” the negative employment of race, and racial stereotyping that maintained affirmative action’s legality were unquestionable violations of the Equal Protection Clause. Furthermore, Roberts emphasizes differential treatment of individuals on the basis of skin color, be it within an admissions process or not, is an insult to the individual’s “merit and essential qualities,” and violates the Equal Protection Clause. [34] By the majority, Harvard’s use of race qua race– race for race’s sake– allows selective benefits and resulted in the reversal of Grutter. The dissent as presented by Justice Kagan and Sotomayor showcased an undeniably contrasting application of equal protection, who wrote of Roberts’ application to be “not only contrary to precedent and the entire teachings of our history ... but is also grounded in the illusion that racial inequality was a problem of a different generation". [35]

The matter of affirmative action proves itself to have both a demanding, as well as problematic history in the United States. The majority opinion served by Chief Justice Roberts makes note that institutions often assume that a student of one demographic, a black student for example, offers a characteristic that another demographic cannot. The attempts institutions make to remedy “societal discrimination” can no longer include race as one of multiple determining variables, though students are permitted to a discussion of “how race affected his or her life.” [36] The program’s subsequent end leaves inquiry to the future of post-secondary education, and what means institutions who have previously applied affirmative action will now utilize. Since the SCOTUS decision, Michael Drake, the president of the University of California (UC) system, described affirmative action as a “valuable practice that has helped higher education institutions increase diversity and address historical wrongs over the past several decades." [37] Ron Daniels, president of John Hopkins University, details the ruling as a "significant setback in our efforts to build a university community that represents the rich diversity of America." [38]

Discussion of the future of higher education in the U.S. must also acknowledge the demographics impacted by the Students for Fair Admissions, Inc v. President and Fellows of Harvard College decision. By expanding the legal definition of race-segregation, SCOTUS has overturned the argument of affirmative action serving to be a remedy. Public opinion, however, has been sporadic regarding the matter. “Soft” forms of affirmative action take preference over “hard” forms, such as programs where race and gender is a tiebreaking factor. [39] For upcoming students, the question of admissions is argued by some to now hold more of a subjective value. With the absence of race as a consideration, the Court suggests that students will be evaluated with more of an emphasis on academic, extracurricular, and personal achievements. 

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Sources

1.  Crosby, Faye J., Aarti Iyer, and Sirinda Sincharoen. “Understanding Affirmative Action | Annual Review of Psychology.” Annual Reviews, January 10, 2006.

2. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

3. Ibid.

4. Ibid.

5. Ibid.

6. Ibid.

7. “Fourteenth Amendment  Equal Protection and Other Rights.” Constitution Annotated. Accessed July 15, 2023.

8. “Title VI, Civil Rights Act of 1964.” Office of the Assistant Secretary for Administration & Management. Accessed July 15, 2023.

9. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

10. “Plessy v. Ferguson”, 163 U.S. 537 (1896). Oyez. Accessed July 15, 2023.

11. “Brown v. Board of Education of Topeka”, 347 U.S. 483 (1954). Oyez. Accessed July 15, 2023.

12. Ibid.

13. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

14. Ibid.

15. Ibid.

16. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

17. Ibid.

18. “Fisher v. University of Texas”, 570 U.S. 297 (2013). Oyez. Accessed July 16, 2023.

19. Ibid.

20. Ibid.

21. Ibid.

22. Ibid.

23. “Grutter v. Bollinger”, 539 U.S. 306 (2003).

24. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

25. “Grutter v. Bollinger”, 539 U.S. 306 (2003).

26. “Students for Fair Admissions, Inc. v. President and Fellows of Harvard College”, 600 U.S. __ (2023).

27. Ibid.

28. Ibid.

29. Ibid.

30. Ibid.

31. Ibid.

32. Ibid.

33. Ibid.

34. Ibid.

35. Ibid.

36. Ibid.

37. Singh, Simrin. “Harvard, Universities across U.S. React to Supreme Court’s Affirmative Action Ruling.” CBS News, June 30, 2023.

38. Ibid.

39. Crosby, Faye J., Aarti Iyer, and Sirinda Sincharoen. “Understanding Affirmative Action | Annual Review of Psychology.” Annual Reviews, January 10, 2006.

Letter From the Editor

June 2023 | Vanessa Aponte (Former Editor-in-Chief)

Dear Esteemed Reader,

My name is Vanessa Aponte, and I’ve had the pleasure of serving as the Editor-in-Chief of UNLV’s Undergraduate Law Review for the past 2½ years. As graduation approaches, I have been reflecting on this organization and my time leading it. I remember when I first found ULR in the Involvement Center, searching for any clubs that had the word “law” in it. Amidst a pandemic and a severe bout of imposter syndrome, the newly-founded Undergraduate Law Review spoke to me. I applied for a leadership position and, even after underestimating my ability, I was given the opportunity to serve as an inaugural Associate Editor. After months of editing articles and helping writers through the process, my dedication was rewarded with the position of Editor-in-Chief. The rest is history. 

During my tenure, ULR has successfully published over 30 articles, educating the public on everything from defamation to tax law to labor rights to intellectual property. We’ve covered countless Supreme Court cases and pieces of legislation, carefully analyzing the constitutional legitimacy of every topic. Some of the articles have focused solely on local Nevada laws, while others have discussed laws in various other states. We’ve even had the pleasure of receiving submissions from undergraduate students in Illinois. Now, after all this time, I’m so grateful that my curiosity led me to this organization. I’m even more grateful for the opportunity to oversee it and watch ULR blossom into a respectable law review.

I’d like to thank all my executive board members across these past 2½ years who have helped me run ULR. There has always been a dedicated team behind this organization, and that teamwork truly made the dream work. Any time I felt overwhelmed or made mistakes, I could always count on them to find solutions and take responsibilities off my plate. I’d also like to thank everyone who has been a part of ULR while I have served in this leadership role. The writers never ceased to amaze me with their passion, and the editors always gave wonderful feedback during meetings. This organization’s success is not mine to claim—it is the collective work of each ULR member that poured their heart and soul into every article. Thank you from the bottom of my heart for always giving it your all, and I cannot wait to see how future publications progress beyond my wildest imagination. Finally, none of this would have been possible without ULR’s founder and first Editor-in-Chief, Kyle Catarata, as well as our faculty advisor from Boyd School of Law, Joseph Regalia. You both have my infinite gratitude.

To my successor, Annie Vong: I am so proud of you. Like many ULR members, you joined the club with so much enthusiasm. I watched your writing improve tremendously, and I was overjoyed when you applied for Associate Editor and then Editor-in-Chief. You are the embodiment of success within ULR, and I have no doubt that you will lead this organization into greatness. I’m so excited to see how ULR thrives under your leadership, and please know that I’m always here to support you and the club at large (albeit as a Boyd Law student now instead of an undergrad). If you ever need anything, I’m only a short walk away!

If you’ve made it this far into the letter, please continue keeping up with our publications. Not only will you learn the law in a digestable manner, but you will also be supporting the work of undergraduate pre-law students with no other avenue to hone their legal writing skills. We write for you, so please read for us. I promise you won’t regret it. 

Sincerely,

Vanessa Aponte

Associate Editor (2020-2021)

Editor-in-Chief (2021-2023)

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Abortion: Troubling Legal Concerns in a Post-Roe America

April 2023 | Vanessa Aponte [former] Editor-in-Chief

In 1839, someone reading a copy of the New York Sun may have noticed an advertisement addressed to married women from a physician named “Madame Restell,” claiming to have medicine that would “alleviate private difficulties” and “remove obstructions.” [1] After mailing Madame Restell a few dollars, a person would receive a powder or some pills that contained ingredients such as pennyroyal, black draught, ergot of rye, and motherwort. These ingredients sound like a recipe from Hocus Pocus, but Madame Restell was no witch. She was an abortion provider almost two centuries ago, infamously dubbed the “Wickedest Woman in New York” due to her services.[2] Despite her notoriety, Madame Restell’s practice shows just how prevalent the issue of abortion has been over time. Abortion is defined as the intentional termination of a pregnancy and, as far back as 1550 BCE, humans have managed unwanted pregnancies by obtaining abortions. [3] The Center for Disease Control (CDC) reported about 620,000 abortions in 2020, or roughly 11 abortions for every 1,000 women ages 15-44. [4] The legality of abortion in the United States used to be protected under Roe v. Wade (1973), but after the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022), Americans no longer have a federally protected right to abortion under the U.S. Constitution. This new ruling upended 50 years of precedent and triggered a wave of abortion bans across the country. As abortion becomes criminalized again in many states, it is imperative to understand the history of reproductive rights in the U.S. and the troubling legal concerns that arise in a post-Roe America. 

The origin of Roe v. Wade can be traced back to 1969, when Norma McCorvey found out she was pregnant with her third child. After seeking out abortion options, she was referred to Linda Coffee and Sarah Weddington. [5] These two attorneys wanted to abolish the statute that criminalized abortion in Texas, so McCorvey agreed to sign on as their plaintiff in order to sue the state of Texas. [6] Under the pseudonym “Jane Roe”, McCorvey filed a class-action lawsuit against Henry Wade, the Dallas County District Attorney at the time. Roe claimed that the law in question—which made it a crime to “procure [or attempt to procure] an abortion” except if done under a doctor’s orders for life-saving circumstances—was unconstitutionally vague and violated her right to privacy under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. [7] Meanwhile, the state of Texas asserted that there was a compelling state interest to restrict abortion in order to protect the health of pregnant people, as well as protect prenatal life from the moment of conception. [8]

Roe v. Wade went all the way to the Supreme Court, where the Court ruled 7-2 that the Due Process Clause in the Fourteenth Amendment contains a right to privacy which protects a pregnant individual’s choice on whether to have an abortion. [9] Since the Due Process Clause protects life, liberty, and property from being taken unlawfully, the abortion decision was deemed a private matter that—for the sake of liberty—should not be infringed upon. However, the Court did not grant an absolute right to privacy for pregnant individuals, which would have allowed abortions at any point in a pregnancy. Rather, the Court did agree with the state of Texas that, at some point, it had a compelling interest to regulate this right. During the first trimester of pregnancy, the state had no compelling interest in regulating abortion. During the second trimester, the state had a compelling interest in regulating abortion as it related to parental health because, at this point, the mortality rate from an abortion procedure exceeded the mortality rate from normal childbirth. [10] Regulations of this kind could include qualifications of the abortion provider, abortion facility standards, etc. During the third trimester, the state had a compelling interest in regulating abortion entirely because, at this point, the fetus has reached the threshold of viability—where it can survive outside the womb. [11] As such, the Court allowed states to ban abortions past the threshold of viability except in cases where the pregnant individual’s life was in danger. Meanwhile, Justice White’s and Justice Rehnquist’s dissents criticized the majority for their arbitrary trimester framework, which lacked constitutional foundation, and for overstepping into legislative decision-making rather than concentrating on the intent of the Founding Fathers who wrote the Fourteenth Amendment. [12] Furthermore, the dissenters' collective focus on consistent historical restrictions on abortion foreshadowed Roe’s overruling in 2022 for that precise reason. 

After Roe, some states legalized abortion while others attempted to find loopholes to the ruling—many of which ended up in court. In fact, since Congress never codified Roe—meaning that the right to abortion never became federal law—this right has always been up to judicial interpretation. As such, a plethora of cases following Roe v. Wade gradually chipped away at abortion rights until Dobbs v. Jackson Women’s Health Organization (2022) completely overturned Roe. This case was brought about because of Mississippi’s Gestational Age Act, which made it a crime to “intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being” past the 15th week of pregnancy except in cases of “medical emergency” or “severe fetal abnormality.” [13] Jackson Women’s Health Organization sued Thomas Dobbs, Mississippi’s State Health Officer, to challenge the Act’s constitutionality. The organization claimed that the state had not proven that a fetus was viable at 15 weeks and that Supreme Court precedent in Roe did not allow states to ban abortion prior to fetal viability. [14] The Mississippi Legislature, in justifying the Act, asserted that the state had a compelling interest in protecting unborn life against the dilation and evacuation procedure used in abortions after 15 weeks. [15]

As a consequence of polarized political ideologies seeping into the Court, the majority in Dobbs narrowly ruled 5-4 to overturn Roe v. Wade. The majority opinion relied on the framework from Washington v. Glucksberg (1997), where the Court held that physician-assisted suicide was not a constitutional right because it was not “deeply rooted in the Nation’s history and tradition.” [16] Applying that same standard to abortion, the Court conducted a historical analysis and found that, prior to Roe, there was virtually no legal support for such a right. On the contrary, abortion was criminalized for most of the nation’s history, even during the adoption of the Fourteenth Amendment—the exact amendment from which Roe had derived the abortion right. [17] Furthermore, the Court argued that a right to abortion was not essential to the “concept of ordered liberty” because there was no order in circumventing the legislative process. [18] In trying to strike a balance between the interests of pregnant individuals and potential life, Roe imposed a specific valuation onto the entire nation and prevented state legislators from expanding or tightening abortion regulations as their voters saw fit. Finally, the Court remained unconvinced that an abortion right was connected to the broader right of liberty, as that argument could lead to a slippery slope of justifying a right to prostitution, illicit drug use, and other illegal actions. [19] The Court’s lengthy opinion ultimately concluded that abortion was no longer a constitutional right, which allowed the Mississippi Legislature—and any other state legislature—the power to legislate abortion as it saw fit. 

Although the decision to overrule Roe was narrowly divided, the ultimate judgment in Mississippi’s favor was a 6-3 decision. Chief Justice Roberts concurred with the judgment, as he felt that Mississippi’s Gestational Age Act should have been upheld but not at the cost of overturning Roe. His concurrence argued that 15 weeks gave people enough time to decide how to handle their pregnancy, so the Court could have simply overturned the viability aspect of Roe’s decision while still maintaining the right to choose. [20] While Roberts concurred because he felt the Court went too far, Justice Thomas’ concurrence did not think the Court went far enough. Thomas believed that the only rights rooted in the Fourteenth Amendment’s Due Process Clause were those that concerned procedural aspects of law enforcement and did not extend further. [21] As such, his concurrence advocated for the overturning of all cases with these seemingly-fabricated rights, including the cases which granted a right to same-sex marriage, a right to contraceptives, and a right to consensual non-procreative sexual activity — Obergefell v. Hodges (2015), Griswold v. Connecticut (1965), and Lawrence v. Texas (2003), respectively. [22]

While the majority opinion assured that no other rights were at risk, the dissenters pointed out that all these rights were linked to the same framework and that, if one could fall, then so can the rest. Justice Kagan explained that abortion was rooted in the Fourteenth Amendment’s promise of liberty, as carrying a pregnancy to term undoubtedly alters someone’s life course. [23] As such, safeguarding reproductive freedom ensured that pregnant individuals were not deprived of liberty, but rather given the opportunity to make this personal medical decision for themselves. With this majority opinion, however, states could now restrict abortion as they wished—regardless of the physical, emotional, or financial impact on the pregnant person. The dissent criticized the majority for pretending to be neutral, when in actuality “the Court acts neutrally when it protects the right against all comers” rather than allowing states to decide who has a right and who does not. [24]Ultimately, the dissent warned of the damaged integrity of the Court for overturning precedent for “no good reason” and foreshadowed the harm that would come to those attempting to exercise reproductive rights when abortion is completely criminalized in their state. [25]

Anticipating the demise of Roe, 13 state legislatures passed “trigger laws” that would immediately criminalize abortion if the Supreme Court overturned Roe. Those laws went into effect after Dobbs was announced, with some states banning abortion at the moment of conception and without exceptions for cases of rape, incest, or serious health risks to the pregnant person. [26] The penalties for violating abortion bans can be as severe as a $100,000 fine and a life sentence in prison, as well as loss of medical license for abortion providers. [27] There have also been attempts to include “bounty hunter” provisions that allow individuals to sue abortion providers and receive damages, but they were struck down due to issues of constitutionality—mainly revolving around vagueness and lack of standing. [28] While certain states have waged war against abortion, others have made it a point to enshrine the right to abortion in their state constitutions. Some states also have “shield laws” in place that provide safeguards for out-of-state patients who seek abortion services in protected states, as well as for their abortion providers within those states. Nevada’s shield law states that the governor will not cooperate with states that criminalize abortion in regard to issuing arrest warrants, surrendering information about someone’s visit to an abortion provider, or utilizing law enforcement to apprehend the individual. [29] Although shield laws certainly help, the financial burden of obtaining out-of-state reproductive care makes abortion beyond reach for many Americans, especially considering most abortion-seekers are low-income and abortions alone cost over $500—not including travel costs. [30]

In spite of this, states with abortion bans are still trying to extend those bans nationwide, criminalizing their residents for obtaining an abortion even in a different state. Idaho is the first state to attempt this so far, but its law only entails minors seeking abortions out of state. [31] Regardless, these laws have contradicting support from the U.S. Constitution, as Americans have a right to travel between states and states must respect the laws of other states while also not impeding interstate commerce. [32] There is a high likelihood that the Supreme Court may be asked to resolve this contradiction. Abortions via medication may seem more feasible considering its availability through the mail, but anti-abortion states are working to restrict that as well. Although mifepristone—the primary drug for inducing abortions—was approved by the U.S. Food and Drug Administration (FDA) back in 2000, the FDA recently created some restrictions to mifepristone’s accessibility. [33] As such, two separate lawsuits came about and required the FDA to somehow revoke its approval of mifepristone and lessen regulations regarding mifepristone’s availability. [34] Since there is a disagreement between two federal courts, the Supreme Court will likely be asked to rectify this issue as well. 

Dobbs' most troubling consequence may be the confusion doctors face, which makes them hesitant to provide necessary care to pregnant patients. Physicians are so fearful of the legal recourse for performing an abortion that they wait until the symptoms are astronomically severe before providing reproductive healthcare, resulting in near-death experiences and long-term pregnancy complications. [35] Yet, the Emergency Medical Treatment and Labor Act of 1986 (EMTALA) requires medical professionals to provide stabilizing treatment in emergency situations, and violations of this federal law for the sake of statewide abortion bans are already being investigated in Missouri. [36] Amidst the legal limbo, pregnant people’s lives are at stake. Despite having good health insurance, expectant patients may be at risk for serious infections or extreme blood loss due to vague abortion bans and harsh penalties for violating them. In the worst-case scenario, a pregnant individual cannot seek medical help at all and will have to either succumb to fatal symptoms or resort to unconventional, life-threatening methods to terminate their pregnancy. Considering that the vast majority of people who obtain abortions are low-income, this future seems inevitable for anyone from an anti-abortion state wishing to terminate their pregnancy, regardless of medical necessity. 

Ultimately, the Supreme Court’s ruling in Dobbs produced more problems than solutions. Not only did the decision upend 50 years of precedent, but it also gave an avenue for the Court to rescind other rights that fall under the “privacy” umbrella. Moreover, the inconsistency across states’ abortion regulations creates inequity regarding access to reproductive healthcare—even in life-saving circumstances. The most harrowing aspect of this ordeal is that statewide abortion bans only force people to either travel to a protected state, if they have the means, or resort to unsafe methods of terminating their unwanted pregnancy. Criminalizing abortion does not stop abortions from occurring. [37] Given that financial concern is the biggest reason why people seek abortions, anti-abortion states would probably see more reduction in abortions if they provided better financial assistance to pregnant individuals. Increasing the amount of paid family leave, raising the minimum wage, or establishing a universal base income are just a few solutions that would drastically improve the financial situations of expectant people. Until then, the issue may only worsen, as the Supreme Court could hear cases in the near future regarding abortion bans’ legal contradictions. That said, while this current Supreme Court majority opposes abortion, a future Supreme Court could reverse Dobbs and repeat this cycle in another 50 years. The legal future of reproductive rights remains unclear, so until Congress establishes federal legislation regarding the matter, “[states] can force [people] to bring a pregnancy to term, even at the steepest personal and familial costs.” [38]

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Sources

1. Horwitz, Rainey. “Ann Trow (Madame Restell) (1812–1878) .” The Embryo Project Encyclopedia, August 23, 2017.

2. Aliano, Kelly. “Life Story: Ann Trow Lohman, a.k.a. Madame Restell.” Women & the American Story, May 17, 2023. 

3.  Potts, Malcolm, and Martha Campbell. “History of Contraception.” The Global Library of Women’s Medicine, May 2009.

4. Diamant, Jeff, and Besheer Mohamed. “What the Data Says about Abortion in the U.S.” Pew Research Center, January 11, 2023.

5.  Barnard, Christianna K., "Jane Roe Gone Rogue: Norma McCorvey’s Transformation as a Symbol of the U.S. Abortion Debate." Women's History Theses. May 2018.

6. Ibid.

7. Roe v. Wade, 410 U.S. 113 (1973).

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. MS Code § 41-41-191 (2018)

14. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

15.  Ibid.

16. Washington v. Glucksberg, 521 U.S. 702 (1997)

17. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

18. Ibid.

19. Ibid.

20. Ibid.

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid.

25. Ibid.

26. Jiménez, Jesus, and Nicholas Bogel-Burroughs. “What Are Abortion Trigger Laws and Which States Have Them?” The New York Times, June 24, 2022.

27. Damante, Becca, and Kierra B. Jones. “A Year after the Supreme Court Overturned Roe v. Wade, Trends in State Abortion Laws Have Emerged.” Center for American Progress, June 15, 2023.

28. Ibid.

29. SB 131, 82nd Session (Nevada 2023).

30. Diep, Karen, Usha Ranji, and Alina Salganicoff. “Key Facts on Abortion in the United States.” KFF, May 11, 2023.

31. Hanna, John, and Geoff Mulvihill. “Next Abortion Battles May Cross State Borders.” AP News, April 10, 2023.

32. Ibid.

33.  Sobel, Laurie, and Alina Salganicoff. “Q & A: Implications of Two Conflicting Federal Court Rulings on the Availability of Medication Abortion and the FDA’s Authority to Regulate Drugs.” KFF, April 8, 2023.

34. Ibid.

35. Simmons-Duffin, Selena. “Doctors Who Want to Defy Abortion Laws Say It’s Too Risky.” NPR, November 23, 2022.

36. Meyer, Harris. “Hospital Investigated for Allegedly Denying an Emergency Abortion after Patient’s Water Broke.” KFF Health News, November 1, 2022.

37. Biggs, M Antonia, Heather Gould, and Diana Greene Foster. “Understanding Why Women Seek Abortions in the US.” BMC Women’s Health 13, no. 1 (July 5, 2013).

38. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

The Laws that Change America’s Health

April 2023 | Kira Kramer (Staff Writer & Editor)

One of the purposes of law in civil society is, arguably, to protect the general safety and welfare of all people. Laws that protect human safety may be associated with those that prevent bodily harm or wrongdoings such as robbery or murder. Bodily harm, however, can also be a result of unsafe practices such as the unsanitary handling of food. In that case, laws are developed and implemented to promote food safety. While associations with the law are not often correlated to healthcare, nearly all commonplace civilian protections towards health and safety are guaranteed to society through a specific area of the law – health law. As described by Harvard Law, “health lawyers work on cases and policy relating to access to care, insurance coverage, difficult ethical choices, providers of care, the safety of our drugs and food supply, disease prevention and treatment” and many other complex healthcare-related issues. [1] As a result of health law and policies implemented over the last century, people can enjoy longer, healthier lives. The history surrounding this type of law has not always been constructive. In today’s world, there exist many laws and policies that govern the healthcare world that threaten to discriminate against members of society, subsequently worsening healthcare outcomes.

One aspect of health law that is incredibly fascinating is the overlap between this type of law and other areas of law that are utilized to craft health legislation. Some of the types of law that are utilized within health law include: “contract law, tax law, insurance and pension law, employment and labor law, public benefits law, torts, ethics, criminal law, administrative law, privacy, civil rights, reproductive rights, constitutional law, and statutory drafting and interpretation—even First Amendment religious liberty and freedom of speech concepts can be implicated in the field.” [2] Health law is practiced at every governmental level, from local government up to the national level, and even into the private sector. Different types of groups, from nonprofit organizations, private or public interest law firms, can practice health law. Some of the major issues that health law aims to address include access to healthcare, insurance, public benefits, provider behavior, cost containment, public health, bioethics, food policy and regulation, medical malpractice, and many more. While health law may seem like a very niche area of the law, it is deeply associated with the everyday lived experiences of many people. Everything – from access to clean drinking water to laws requiring that you wear a helmet while riding a motorcycle  – has been regulated by the health law.

While health law incorporates vast specialties within the law, it also protects the health and well-being of citizens. Some of the most incredible accomplishments of health law include the Pure Food and Drug Act of 1906 and the subsequent legislative accomplishments that allowed for the regulation of “foods and prescription drugs; mandated folic acid fortification of cereal grain products; limits on chemical contamination of crops; food stamps; the Women, Infants, and Children program; and school meals” are measures that have improved the health and safety of Americans. After the publication of Upton Sinclair’s, The Jungle – which exposed the horrific working conditions in the meat-packing industry – laws and regulations were introduced to protect consumers from unsanitary food manufacturing practices. As a result of The Jungle, President Theodore Roosevelt passed a law regulating food and drugs on June 30, 1906. That same day, he also signed the Meat Inspection Act. This would eventually lead to the Pure Food and Drug Act, which regulates food additives and prohibits misleading labeling of food and drugs, as well as the formation of the Food and Drug Administration (FDA). Today, the FDA is responsible for “protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation's food supply, cosmetics, and products that emit radiation.” [3]

Health law, however, has not always been as forthcoming or upstanding. Sometimes the law has been downright atrocious. At times, the purveyors of the legal system have enacted laws that actively harm the health and well-being of citizens. One of the most heinous examples takes place in 1927 when the Supreme Court decided to uphold a state's right to forcibly sterilize a person they considered unfit to procreate in a 8 to 1 vote. In Buck v. Bell (1927), a young woman named Carrie Buck, whom the state of Virginia had deemed to be "feebleminded” was forcibly sterilized against her will. [4] This ruling would lead to the forced sterilization of over 70,000 people in the 20th century. [5] Justice Holmes was able to rule using ​​compulsory vaccination, validated under Jacobson v. Massachusetts (1905), to support the justification of forced sterilization. [6] He then verbally justified his decision saying that “three generations of imbeciles are enough.” [7] This was a major violation of human rights and a horrific failure of the public health law to protect the health of citizens. 

The degree to which the government can intervene in the health of a person or community has not always been straightforward. The recent COVID-19 pandemic and subsequent vaccination requirements have spurred constitutional discourse about whether or not the federal and state governments are permitted to pass public safety policies that may or may not violate constitutional rights. There are two Supreme Court decisions that guide state and local authorities to issue vaccine mandates. In 1905, the Supreme Court ruled in Jacobson that “under a state law local health authorities could compel adults to receive the smallpox vaccine.” [8] The Court justified this decision by saying that under the state’s general police power there exists the ability to enact laws that protect the health, safety, morals, and general welfare of the public. 

In 1922, the second decision on vaccine mandates came as a result of Zucht v. King,where the Court reached a similar conclusion. Henning Jacobson and Rosalyn Zucht argued that the vaccine policy violated their 14th Amendment due process rights. Similar lawsuits that occurred during the pandemic still ruled in favor of vaccination mandates, stating that there is not enough evidence to support the argument that their constitutional rights are being violated by having to observe vaccine mandates. These mandates are made possible through Section 361 of the Public Health Service Act (PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” [9] However, federal laws provide protections to employees based on religious beliefs or disability status. Enacting a federal vaccine mandate would provoke legal challenges because the 10th Amendment prohibits commandeering or forcing states to use their own resources to carry out our federal policies.

Even though there are limitations to the extent to which the government can enact health policy, there are opportunities at the state level to enact laws that change the health of communities. There does not exist a universal healthcare system in the United States, therefore, each state is able to dictate different types of health and safety laws. There exists a handful of laws and policies in the world of healthcare that are enacted and enforced by the federal government. Some examples of these would be the enforcement of the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Patient Safety and Quality Improvement Act of 2005 (PSQIA), and fraud and abuse laws to name a few. [10] Despite these federal regulations, much of the public health law that governs peoples’ daily lives come from state legislators. Even though Medicare, Medicaid, Children's Health Insurance Program (CHIP), and other federal programs were created by the federal government, the benefits and eligibility pertaining to each are decided differently by each state. This causes significant discrepancies and disparities between health access and coverage. Therefore, Health law advocates are siloed by the law and policy that exists in their state. 

Despite the challenges that the fragmented system presents, it is still possible for individuals to influence policies that change the health outcomes of their communities for the better. Some of these changes can be sought out through the presentation of bills at the local, state, and national levels. Legislators can develop their bills from several different sources. These sources include constituents, legislative hearings, and personal experience as well as research on the idea (current Nevada law or other states). [11] There could also be a request for a bill draft resolution (BDR) or they have the option to have the Legal Division prepare the bill draft and deliver it to a sponsor (requestor). [12] This means that people personally affected by a health issue in the community can seek out their representatives and propose a bill that addresses a concern in their community. David Bandbaz did just that. 

Bandbaz is a fourth-year medical student at the Kirk Kerkorian School of Medicine. In the spring of 2023, he matched with the University of Utah to attend their general surgery residency program. While on rotations in UMC’s trauma center, he would observe the grotesque injuries that patients would present as a result of motorcycle accidents. After becoming seriously injured in a motorcycle accident himself and researching the incidence and severity of motorcycle-related death and injury, he knew something needed to be done. Through collaborating with community partners and staff at the Kirk Kerkorian School of Medicine, he was able to work with Nevada State Senator, Dallas Harris, to propose a bill in the 2023 legislative session that aims to reduce the risk of death and injury in motorcycle vehicle accidents – SB 423. 

One of the components of this bill calls for riders who were found riding without a motorcycle endorsement to undergo rider safety training within nine months of the date of the final order of the court in lieu of assessing the fine for the violation. [13] The bill also requests that motorcycle endorsements be renewed by retesting via taking a safety course, to prove that riders are still capable of riding a motorcycle. [14]Another component of the bill is that riders under 30 years old must complete a course of motorcycle safety in order to renew their endorsement at least once every 8 years after the initial issuance of the endorsement. [15] For riders over 30 years of age, this would be at least once every 12 years after initial issuance. SB 423 passed through the Senate Committee on Growth and Infrastructure and Assembly Growth and Infrastructure Growth Committee.  It has also passed both the Assembly and State Senate as of May 25, 2023. Bandbaz has been working with legislators and community members on this bill for three years, and his dedication is a testimony to how individual community members can enact change. 

Many public health laws are being presented at the 2023 Nevada Legislative Session. This is likely due to the fact that this is the state’s entire in-person session since the COVID-19 pandemic. The pandemic shined a spotlight on the deficiencies of healthcare systems across the country, and through law and policy, legislators and public health professionals can hope to improve access to healthcare, quality of care, and ultimately, health outcomes for all people. It is imperative to public health objectives that these initiatives continue to be prioritized and given adequate attention as time goes on, and as the memory of the pandemic fades from view. Due to global warming, overcrowding, and other modern-day issues, it is likely that pandemics and other infectious diseases will arise. Creating robust public health systems supported by law and policy will allow societies to be prepared for what the future holds.

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Sources

1.  Pattanayak, Catherine, Joan Ruttenberg, and Annelise Eaton. “Health Law: A Career Guide.” Bernard Koteen Office of Public Interest Advising. Harvard Law, 2012.

2. Ibid.

3.  “Food and Drug Administration.” USAGov.

4.  Buck v. Bell. 274 US 200 (1927).

5.  The Petrie-Flom Center Staff. “Why Buck V. Bell Still Matters.” Bill of Health. Harvard Law Petrie-Flom Center, October 15, 2020.

6.  Buck v. Bell. 274 US 200 (1927).

7. Ibid.

8.  Bomboy, Scott. “Current Constitutional Issues Related to Vaccine Mandates.” National Constitution Center. August 6, 2021.

9.  “42 U.S. Code § 264 - Regulations to Control Communicable Diseases.” Legal Information Institute. Cornell Law.

10. Kalantar, Art. “6 Key Laws That Regulate the Healthcare Industry?” Law Offices of Art Kalantar, June 12, 2020. 

11. Malkiewich, Lorne, and Allison Combs. “The Nevada Legislative Process Lorne Malkiewich.” Nevada Legislature. Accessed April 20, 2023.

12. Ibid.

13. Nevada Legislature. Senate Bill NO. 423–Committee on Growth and Infrastructure. 82nd Leg. sess. Introduced in Senate March 27, 2023.

14. Ibid.

15. Ibid.