Monthly Archives: November 2019

8 posts

Originalism in The Trump Team’s Trump v. Vance Briefing and the Incidental Investigation of the President


Connor Clerkin, CLS ’21

President Trump’s legal team and the court in Trump v. Vance did not seem to agree on whom the at issue grand jury was investigating.[1] For the purposes of litigation, the court stated that the parties agreed that “the grand jury is investigating whether several individuals and entities have committed criminal violations of New York Law.”[2] The president’s legal team sought to downplay the distinction between an investigation of the president and of a third party which implicates the president in its brief, stating, “This subpoena subjects the President to criminal process under any reasonable understanding of that concept . . . That the grand-jury proceeding might involve other parties, or that the subpoena was issued to a third-party custodian, does not alter the calculus.”[3] In response to this claim the court stated, “it would … exact a heavy toll on our criminal justice system to prohibit a state from even investigating potential crimes committed by [the president] . . . or by other persons, not protected by any immunity, simply because the proof of those alleged crimes involves the President.”[4]

While the Trump legal team invoked the Framers for the proposition that the president was immune from any criminal process, even incidentally, their cited materials prove somewhat problematic. Solicitor General Robert Bork, in his Memorandum for the United States Concerning the Vice President’s Claim of Constitutional Immunity[5], cites to Madison’s Records of the Federal Convention to help establish his claim that the Framers viewed the chief executive as above the “ordinary criminal process.”[6] The president’s legal team argued that the Framers would support their client’s position, using this memo as proof.[7] Bork points to the debate on July 20th on the nature of impeachment, which does seem to rely on background assumption that, without impeachment, the chief would be essentially untouchable.[8] For instance, Benjamin Franklin expressed concern that, without impeachment, the only recourse of the people would be assassination.[9] Franklin himself favored impeachment for the reason that it was the only means by which an accused president might clear his name, further indicating that no threat of criminal trial existed.[10] It should be noted that no portion of this debate discusses investigation explicitly.

Gouvernuer Morris, who Bork cites by name for his representation on the views of the Framers, made remarks indicating a view that the executive would not be above investigation.[11] In his defense of unimpeachability, he stated that “[the executive] can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence.”[12] George Mason agreed as to coadjutors, but favored “punishing the principal as well.”[13] These statements indicate two important points. The Framers did not think that criminal associates of the president were above the law merely because of their association with the president.[14] Additionally, Morris’ two statements imply that the punishment of the coadjutors would create a situation where election could be “sufficient proof of [the president’s] innocence.”[15] It is hard to imagine how this could be possible if investigation of accomplices did not include some investigation of the president. An election following some revelation about the president’s actions could provide proof of innocence; an election following no such revelation could demonstrate only that the electors did not care about guilt or innocence.

To the extent then that the Framers believed that, without impeachment, the president was above criminal prosecution, they must also have believed that his associates were not, and at least hint that their trial might provide the evidence to prove or disprove the president’s own innocence.[16] That is not to say that the views of the Framers were fixed, particularly clear, or dispositive here. Only that perhaps Bork’s memo might not be the best cite for presidential immunity in cases involving his coadjutors as well.


[1] Trump v. Vance, 941 F.3d 631 (2d. Cir. Nov. 4, 2019).

[2] Trump, 941 F.3d at 636.

[3] President Trump’s Opening Brief at 9, Trump v. Vance, 2019 WL 5687447 (2d. Cir. Nov. 4, 2019) (No. 19-3204-cv) (“Trump Brief”).

[4] Trump, 941 F.3d at 644.

[5] In re Proceedings of the Grand Jury Impaneled Dec. 5, 1972, No. 73-cv-965, (D.Md.) (“Bork Memo”).

[6] Bork Memo at 6.

[7] Trump Brief at 9-10.

[8] Bork Memo at 6; 2 Farrand, Records of the Federal Convention, 63-70 (New Haven, 1911).

[9] 2 Farrand at 65.

[10] Id.

[11] Bork Memo at 6.

[12] 2 Farrand at 64.

[13] Id. at 65.

[15] 2 Farrand at 64.

New York’s Highest Court Reaffirms Tribal Sovereignty in Internal Leadership Dispute

Benjamin Apfel, CLS ’21

On October 29, NY’s Court of Appeals ruled that it lacks jurisdiction to resolve the longstanding internal dispute over leadership of the Cayuga Nation (“The Nation”), reversing the decision of the lower court.[1]

The Cayuga Nation owns and occupies land in Western New York State, including the properties subject to the instant litigation.[2] As a result of several treaties entered into with the Federal Government towards the end of the 18th century, the Nation retained its right to sovereignty over its internal affairs.[3] The Nation is instructed by the Great Law of Peace, which governs the procedures by which The Nation’s clan mothers approve or remove members of The Nation Council (the “Council”), which is the governing body of The Nation.[4]

The fifteen-year old dispute emerged as a result of the fragmentation of The Nation Council, when certain Council members, including William Jacobs, founder of Defendant “Jacobs Council”, claimed that other Council members, including Clint Halftown, founder of Plaintiff “Halftown Council”, had been removed from their positions of authority under Cayuga Law.[5]

After a decade of internal discord and attempted “takeovers”[6] of The Nation Council, in July 2017, the Halftown Council commenced action against the Jacobs Council, alleging trespass and theft of The Nation’s property and seeking damages and injunctive relief.[7]

The lower court acknowledged that, though New York Courts generally “lack the ability to resolve an intra-tribal leadership dispute,” the Bureau of Indian Affairs’ (“BIA”) tacit recognition of the Halftown Council for federal aid purposes relieves the courts from having to resolve that question.[8] The Court of Appeals disagreed, adopting the paradoxical conclusion that BIA’s limited recognition confers standing on the Halftown Council to sue on behalf of the Nation,[9] but does not resolve the “disputed issues of tribal law implicated by the merits of this action.”[10]

The Court explained that because the litigation regards property owned by The Nation, and the Halftown Council had commenced the lawsuit on behalf of The Nation, the question before the court turns entirely on which faction rightfully speaks on behalf of The Nation.[11] The Court castigated the Dissent for contending that The Nation’s lack of a conventional system of legal adjudication “disadvantages” The Nation, and leaves it “entirely without recourse.”[12] Describing this view as “paternalistic,” the Court reasoned that The Nation’s alternative dispute mechanisms are wholly expressive of their recognized right to sovereignty in their internal affairs.[13]

The Court concluded its argument by stating that “there is no federal or state precedent that would permit the Halftown Council to use a determination regarding federal funding as a sword against its competing leadership faction in order to have New York courts end a persistent fifteen-year-old internal dispute regarding tribal governance which is implicated by the claims presented here.”[14]

While Joseph Heath, attorney for the Jacobs Council, noted that the Court’s recognition of the Great Law of Peace was an “important legal win for traditional nations in general[,]”[15] the Court’s dissenters lamented that the majority’s decision “slam[s] the courthouse doors in the face of the Cayuga Nation…even though it has no other forum to which it can turn.”[16] This deeply divided decision serves as a microcosm for the difficulties US courts face in finding a balance between respecting Native Americans sovereignty and providing those who seek recourse in the US court system accessible avenues of legal relief.


[1] Josh Russell, Top NY Court Won’t Weigh in on Tribe Leadership Fight, Courthouse News (Oct. 29, 2019),

[2] Cayuga Nation v. Campbell, 2019 N.Y. LEXIS 3053, 2019 NY Slip Op 07711, 2019 WL 5549801 (Oct. 29, 2019).

[3] Id. at *1.

[4] Id.

[5] Id. at *2–3.

[6] Id. at *8.

[7] Id. at *5.

[8] Id. at *10.

[9] See id. at *36 (J. Wilson, dissenting) (“The oddest inconsistency in the majority’s position is that it assumes the Halftown Group is the proper party to sue on behalf of the Cayuga Nation, yet although the Nation is suing—necessarily to dispossess persons who are not the Nation—the majority refuses to permit the Nation the right to avail itself of the courts to regain its property.”)

[10] Id. at *11.

[11] Id.

[12] Id. at *18–9.

[13] Id.

[14] Id. at *22.

[15] Ryan Franklyn, Appeals court leaves internal leadership question up to the Cayuga Nation, Auburn Pub (Oct. 31, 2019),

[16] Cayuga Nation v. Campbell, 2019 N.Y. LEXIS 3053, 2019 NY Slip Op 07711, 2019 WL 5549801 (Oct. 29, 2019).

House and Senate Pass Bill Making Animal Cruelty a Federal Offense

Tené Johnson, CLS ’21

Many people are surprised to know that the United States currently doesn’t have a federal felony law against animal cruelty.[1] [2] While all states have laws against animal neglect and/or abuse, the lack of a federal law has many implications.[3] It sends the message that preventing and prosecuting animal cruelty is not a priority on a national level. It also makes it difficult to prosecute cases of animal cruelty occurring across multiple jurisdictions as well as cases that occur in places under federal purview, such as military bases and airports.[4] For example, a federal law would allow federal prosecutors and law enforcement officials to bring charges in cases in which animals are being mistreated while transported on interstate highways, cases in which information is being exchanged online to facilitate bestiality, cases in which the specific location of the abuse cannot be determined, and cases involving the interstate sale of abused dogs for puppy mills. On October 22, 2019, The Preventing Animal Cruelty and Torture Act (PACT Act), introduced by Reps. Ted Deutch (D-Fla.) and Vern Buchanan (R-Fla.) passed unanimously in the House.[5] On November 5, 2019, the Act also passed in the Senate.[6] The bill now awaits signature by President Trump.

The PACT Act allows authorities, regardless of state laws, to prosecute animal abusers for crushing, burning, drowning, suffocating, sexually exploiting, and impaling animals.[7] The ability to prosecute cases under the PACT Act is particularly important in the case of bestiality, as some states still do not have laws banning the sexual exploitation of an animal. Under current federal law, the sale of “crush videos” depicting these actions is illegal under The Animal Crush Video Prohibition Act.[8] The PACT Act would expand that law, making the underlying activities portrayed in these videos also illegal. If passed, under PACT, animal abusers could be punished with felony charges, up to seven years in prison, and/or fines.[9] The Act includes exceptions for hunting, veterinary care, scientific research, action needed to protect the life or property of a person, and unintentional acts.[10]


Supporters of the Act have cited many reasons for backing the bill. Some believe that animals are capable of suffering and are inherently worthy of moral and legal consideration. Consequently, they reason that we as humans have direct duties to them, including the duty to prevent cruelty towards them by deterring and punishing animal abusers. Others believe in a Kantian theory of indirect duties to animals based on the idea that while we do not have direct duties to animals, we should avoid their mistreatment as it ruins the moral state of society by normalizing aggression and encouraging future violence against humans.[11] While animal lawyers generally consider the bill a win, many also point to the lack of protections provided under the PACT Act for farmed animals. Each year, 9 billion land animals are raised for food in the United States, but currently no federal animal cruelty law governs their care, and they are exempt from most state cruelty laws as they fall under exceptions for agricultural practices.[12]


[1]  Lauren M. Johnson, The House Passes a Bill that Makes Animal Cruelty a Federal Felony, CNN (October 23, 2019), []. Currently, federal law only prohibits animal fighting and the creation and sale of videos depicting certain acts of animal cruelty, through the Animal Crush Video Prohibition Act.

[2] Kelly Taylor Hayes, ‘A Significant Milestone’: House Unanimously Passes Bill to Make Animal Cruelty a Federal Felony, Fox 5 New York (October 25, 2019), [].

[3] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), [].

[4] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), [].

[5] Neil Vigdor, House Unanimously Approves Bill to Make Animal Cruelty a Federal Offense, New York Times (October 23, 2019), [].

[6] Cole Higgins, The Senate Unanimously Passes a Bill that Makes Animal Cruelty a Federal Felony, CNN (November 6, 2019), [].

[7] 116th Congress, H.R. 724- Preventing Animal Cruelty and Torture Act, Congress.Gov (2019-2020), [].

[8] Kelly Taylor Hayes, ‘A Significant Milestone’: House Unanimously Passes Bill to Make Animal Cruelty a Federal Felony, Fox 5 New York (October 25, 2019), [].

[9] 116th Congress, H.R. 724- Preventing Animal Cruelty and Torture Act, Congress.Gov (2019-2020), [].

[10] Id.

[11] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), [].

[12] Animal Legal Defense Fund, Farmed Animals & The Law, Animal Legal Defense Fund (Accessed October 27, 2019), [].

Salty about the SALT Deduction Cap, Blue States File Suit in New York v. Mnuchin

Alak Mehta, CLS ’21

Does The Tax Cuts and Jobs Act of 2017’s cap on state and local tax (SALT) deductions exceed the scope of Congress’ taxing power under the Constitution?[1] Secondly, does this provision unconstitutionally coerce states into changing their tax policies, in violation of the principles of federalism embodied in the Tenth Amendment?[2] No and no, according to U.S. District Court Judge J. Paul Oetken, in a September 30, 2019 opinion dismissing a constitutional challenge levied by four blue states – New York, Connecticut, Maryland, and New Jersey – against the U.S. Treasury Department.[3]

The Tax Cuts and Jobs Act of 2017, signed into law by President Trump, implemented a cap of $10,000 on the amount a taxpayer may deduct from her federal taxable income to account for state and local tax payments.[4] Historically, taxpayers have been able to deduct the full amount of SALT payments on their federal tax returns (with some exceptions).[5] The plaintiff states, whose state and local taxes tend to be substantially higher than the national average, challenged this amendment due to the adverse impact it is likely to have on the states themselves and their taxpayers.[6]

Before delving into the merits of the challenge, Oetken disposed of three challenges by the United States to the court’s subject matter jurisdiction.[7] First, Oetken found that the states have standing to challenge the provision, conferred by the loss of tax revenue the states allege will result from the SALT deduction cap.[8] More specifically, the states contend that this tax revenue decrease will arise from declines in home values[9] and household spending.[10] Second, Oetken held that the Anti-Injunction Act, which bars state and federal courts from hearing suits seeking injunctions prohibiting the collection of federal taxes, does not cover this lawsuit because the states assert a violation of their own rights, not the rights of their taxpayers (which would likely be covered by the Anti-Injunction Act.)[11] Third, Oetken held that the political question doctrine does not bar the court from resolving this dispute, as assessing the constitutionality of a statute “is what courts do.”[12]

Moving on to the merits of the case, Oetken first held that there is no implicit constitutional limitation on the federal taxing power preventing Congress from setting a SALT deduction cap.[13] Put differently, Congress holds plenary power under the Constitution to tax income, meaning that deductions granted are purely a matter of legislative grace.[14] In his analysis, Oetken acknowledged that this cap on SALT deductions is “in some ways unprecedented,” but he failed to find any structural limitation in the Constitution barring such a cap.[15]

After confirming that SALT deduction caps are not unconstitutional per se, Oetken then found that the specific SALT deduction cap in the Tax Cuts and Jobs Act of 2017 does not unconstitutionally coerce states to decrease their tax burdens.[16] Drawing from the Supreme Court’s anti-commandeering and Spending Power jurisprudence, the plaintiff states argued that the SALT deduction cap represents an intentional effort by Congress to compel high-tax states to lower their tax rates.[17] In response, Oetken first noted that legislative intent is not relevant to the coercion inquiry: “An otherwise valid federal law does not offend the Constitution simply because it seeks to affect state policies.”[18] Rather, the coercion inquiry must be based on the statute’s effects.[19] Following this principle, Oetken next held that the States had not plausibly suggested that the SALT deduction cap would have the effect of “burden[ing] their taxpayers so heavily” that the States will be forced to choose between lowering tax rates and facing budgetary catastrophe.[20] In other words, the SALT deduction cap is not unconstitutionally coercive.

Oetken’s opinion is unsurprising, given federal courts’ reluctance to find even the imposition of conditions on states’ receipt of federal grants unconstitutionally coercive.[21] However, it is notable in its acceptance of the application of the coercion inquiry to a new domain: federal tax legislation. Given the plaintiff states’ loss in this case, it appears that their best hope of reinstating a complete SALT tax deduction is through Congress, rather than the courts.



[1] Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131 Stat. 2054 (2017); U.S. Const. art. 1, §8, cl. 1.

[2] U.S. Const. amend. X; see South Dakota v. Dole, 483 U.S. 203 (1987).

[3] New York v. Mnuchin, 2019 WL 4805709 (S.D.N.Y. Sep. 30, 2019).

[4] New York v. Mnuchin, 2019 WL 4805709 (S.D.N.Y. Sep. 30, 2019), at *3.

[5] Id. at *12.

[6] Id. at *1.

[7] Id. at *5-11.

[8] Id. at *8.

[9] The SALT deduction cap has, in fact, led to a decline in home values in several counties in the plaintiff states, according to a recent Moody’s study. See Jonathan D. Salant & Samantha Marcus, Your N.J. Home is Worth Less Than It Should Be, Thanks to the Trump Tax Law, (Oct. 12, 2019),; Moody’s Analytics, Home Price Impact of Tax Cuts and Jobs Act of 2017, ProPublica (Oct. 2019),

[10] New York v. Mnuchin, 2019 WL 4805709, at *6-7 (S.D.N.Y. Sep. 30, 2019)

[11] Id. at *10.

[12] Id. at *11, (quoting Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012)).

[13] Id. at *12-14.

[14] Id. at *12-14.

[15] Id. at *12.

[16] Id. at *14-17.

[17] Id. at *14; see South Dakota v. Dole, 483 U.S. 203 (1987).

[18] Id. at *14.

[19] Id. at *16.

[20] Id. at *16.

[21] But see Nat’l Fed. of Indep. Business v. Sebelius (NFIB), 567 U.S. 519 (2012) (opinion of Roberts, C.J.). In that case, for the first time ever, a majority of the Supreme Court found an exercise of Congress’ spending power unconstitutionally coercive. To see how Judge Oetken distinguishes NFIB, see New York v. Mnuchin, 2019 WL 4805709, at *17 (S.D.N.Y. Sep. 30, 2019).

Tempering Great Expectations After Mobley v. State

Sherwin Nam, CLS ’21

On October 21, 2019, the Supreme Court of Georgia issued its opinion in Mobley v. State, extending Fourth Amendment protection to warrantless retrievals of electronic data from cars.

Victor Mobley was involved in a car collision that killed both occupants of the other car. Mobley’s 2014 Dodge Charger had a built-in airbag control module (ACM).  ACMs automatically record the speed of the vehicle, the status of the brakes, and various other electronic data.  At the scene of the accident, investigators retrieved the data from the ACM of Mobley’s car and discovered that Mobley was speeding at nearly 100 miles per hour in the moments leading up to the collision.  Law enforcement soon after launched a criminal investigation into Mobley.  A grand jury later indicted Mobley, charging him with two counts of first-degree vehicular homicide.  Mobley moved to suppress the ACM data, but the trial court denied the motion.  Mobley was subsequently tried and convicted.  The Georgia Court of Appeals affirmed.

At issue before the Georgia Supreme Court was (1) whether investigators searched Mobley’s vehicle when they collected the ACM data; (2) if so, whether that search was reasonable; and (3) if the search was unreasonable, whether the procedural protections of Georgia Code § 17-5-30[1] barred any exception to the exclusionary rule.[2]

The Court found that investigators did conduct a search and that that search was unreasonable.  The traditional Fourth Amendment test for determining a search or seizure is grounded in trespass.  In other words, if law enforcement physically intrudes on a constitutionally protected area,[3] then it has conducted a search.[4]  To obtain the ACM data here, law enforcement physically intruded on Mobley’s car, which is “plainly among the ‘effects’ with which the Fourth Amendment[] . . . is concerned[.]”[5]  Thus, the Court found that the government had conducted a search.  This search was unreasonable because the government failed to rebut the presumption that warrantless searches are per se unreasonable.  That is, the government did not identify any applicable exception to the warrant requirement.

In finding that the government’s search was unreasonable, the Court partially overruled its prior decision in Gary v. State.  In Gary, the Court held that Georgia Code § 17-5-30 statutorily barred all exceptions to the exclusionary rule.[6]  Gary provided incredible protection to Georgia defendants because all evidence obtained without the proper constitutional process would be excluded from the record.  This was significant because other jurisdictions might make available, for example, an inevitable discovery exception to admit otherwise unlawfully obtained evidence if it “inevitably would have been discovered by lawful means[.]”[7]  In partially overruling Gary, the Court made available, moving forward, exceptions to the warrant requirement and strongly limited Fourth Amendment protections.  It did, however, explicitly leave open the question whether the Leon exception[8] would remain barred under Gary.

While Mobley is a step in the right direction—and commentators have already recognized the importance of this decision for privacy rights[9]—we should temper expectations of significantly greater Fourth Amendment protections for electronic data, even those obtained from ACMs, for three reasons.

First, the Court treaded lightly in reaching its decision.  It noted in its analysis on the reasonableness of the search, albeit relegated to a footnote, that its decision was “based on the record before [it].”[10]  The Court’s careful words sound in Carpenter v. United States,[11] where Chief Justice Roberts cautioned, “Our decision today is a narrow one.  We do not express a view on matters not before us[.]”[12]  Many lower courts in the wake of Carpenter have clung to those words as a failsafe when declining to extend Fourth Amendment protection to historical cell-site location data and other surveillance and tracking technologies.[13]  Lower courts in Georgia may follow suit and deny Mobley protection to ACM data and other forms of electronic data-recording devices.

Second, the Court left open the question whether the Leon exception might still apply where law enforcement agents obtain evidence relying in good faith on the validity of a search or seizure.  The Court welcomed, moving forward, government challenges to motions to suppress based on the good-faith exception.  This could arm lower courts with further legal backing to restrict Fourth Amendment protections, at least in cases where searches occurred prior to Mobley.  Indeed, after Carpenter, many lower courts relied on Leon to bar Fourth Amendment protection.[14]  Until the Georgia Supreme Court decides on the issue, we can expect Leon challenges to proliferate, potentially admitting evidence when lower courts would not have admitted it pre-Mobley.

Lastly, and perhaps most importantly, the Court explicitly uprooted Gary, which once provided vast evidentiary protection to defendants.  While the Leon exception may or may not remain barred, courts now have free range over the buffet of options including the automobile exception,[15] the exigent circumstances exception,[16] and the inevitable discovery exception,[17] among others.  Thus, Georgia law enforcement gained significant procedural backstops to admitting evidence, even if the evidence was collected using otherwise constitutionally dubious methods.

Undoubtedly, Mobley will eventually provide great Fourth Amendment protection to defendants navigating the criminal justice system in Georgia.  In current and future criminal investigations, law enforcement will be bound by Mobley when attempting to collect ACM data.   But unfortunately, it may take years before Georgia courts apply this protection uniformly and realize the true potential of Mobley.

[1] Georgia Code § 17-5-30 is a rule of criminal procedure that governs motions to suppress evidence.  Prior to this case, Georgia courts held that the rule bars all exceptions to the exclusionary rule.

[2] The Court also considered whether the inevitable discovery doctrine applied to this case, but that issue goes beyond the scope of this blog post.

[3] The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]”  U.S. Const. amend. IV.

[4] See United States v. Jones, 565 U.S. 400, 406 n.3 (2012).

[5] Mobley v. State, No. S18G1546, 2019 WL 5301819, at *5 (Ga. 2019) (citation omitted).

[6] 262 Ga. 573 (1992).

[7] Mobley, 2019 WL 5301819, at *12.

[8] In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that evidence obtained from law enforcement agents who rely in good faith on the constitutionality of a search or seizure is an exception to the exclusionary rule.

[9] See Karl Bode, Cops Need a Warrant to Access Your Car’s Data, Court Rules, Vice: Motherboard (Oct. 22, 2019 8:00 AM), (quoting Nathan Wessler, ACLU Staff Attorney, and Guarav Laroia, Senior Policy Counsel at Free Press); Jeffrey Neuburger, Warrantless Retrieval of Electronic Automobile Data Held to Be Unreasonable Search – Ruling Points to Private Nature of Digital Data in Today’s World, Proskauer Rose LLP: New Media and Technology Law Blog (Oct. 21, 2019), (calling [Mobley] an “important follow-up to . . . Riley [v. California] and Carpenter”).

[10] Mobley, 2019 WL 5301819, at *6 n.10 (finding that the government had not shown the applicability of the automobile exception and the exigent circumstances exception).

[11] For a digest of Carpenter and its place in Fourth Amendment jurisprudence, see Sean Lerner, Fourth Amendment Law and Third-Party Doctrine After Carpenter v. US, Columbia University School of Law Journal of Law & Social Problems: The Common Law (Nov. 16, 2018),

[12] 138 S. Ct. 2206, 2220 (2018).

[13] See, e.g., United States v. Kelly, 385 F. Supp. 3d 721, 726 (E.D. Wis. 2019) (highlighting the narrow holding of Carpenter); United States v. Felton, 367 F. Supp. 3d 569, 575 (W.D. La. 2019) (holding that the narrow ruling of Carpenter does not apply to the instant case); Hicks v. State, No. 129654C, 2019 WL 4233844, at *13 (Md. Ct. Spec. App. Sep. 6, 2019) (declining to extend Carpenter’s “narrow” holding to the instant case).

[14] See, e.g., United States v. Korte, 918 F.3d 750, 759 (9th Cir. 2019) (affirming the district court’s application of the good-faith exception); United States v. Ackies, 918 F.3d 190, 196 (1st Cir. 2019) (finding that even if the government did not prove probable cause for the warrants, the good-faith exception would apply); United States v. Streett, 363 F. Supp. 3d 1212, 1328 (D.N.M. 2018) (finding that the good-faith exception applies to the instant case).

[15] The automobile exception to the warrant requirement allows admission of evidence only when the vehicle in question is “readily mobile.”  United States v. Delva, 922 F.3d 1228, 1243 (11th Cir. 2019).  It does not apply where the suspect did not have access to the vehicle due to the officers impounding the vehicle.  See State v. LeJeune, 276 Ga. 179, 182 (2003).

[16] “The exigent circumstances exception to the warrant requirement applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.”  8A Barbara J. Van Arsdale et al., Federal Procedure, Lawyer’s Edition § 22:229 (2019) (citation omitted).  Examples of exigent situations include danger of damage and possible loss or destruction of evidence, risk of physical harm to officers or others, when officers are in hot pursuit of a fleeing suspect.  See id.

[17] The inevitable discovery applies only when “a reasonable probability that the evidence in question would have been discovered by lawful means[.]”  Mobley, 2019 WL 5301819, at *12.

Court Ruling: Cracking down on the Unauthorized Administration of Psychotropic Medication to Migrant Children

Ilana Gomez, CLS ’21

The legacy of the 1985 class-action lawsuit, Flores v. Reno, promulgated the Flores Settlement Agreement (“Flores Settlement”) and began a nationwide conversation on the ethical standards of processing undocumented minors separated from their parents and families. The agreement, which has proved a contentious crux for Trump’s zero-tolerance policy, essentially ordered the government to detain children in the “least restrictive” settings, create and implement appropriate standards of care of detained children, and release children “without unnecessary delay” to specific individuals listed in the agreement.

Many U.S. detention centers have failed to meet the Flores standards, and some have allegedly provided psychotropic medication without appropriate authorization.[1] In 2018, the Center of Human Rights and Constitutional Law (CHRCL) filed a class action lawsuit, Flores v. Sessions, against a Texas facility in Manvel, Texas, alleging that the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) unlawfully administered  psychotropic drugs to detained children without appropriate consent.[2] On one occasion, ORR staff threw a child to the ground and forcibly opened his mouth, while another complaint detailed coercive practices where children were threatened to take medication.[3] Such threats included telling the children that the only way they could leave the center was if they took the medication.[4] This treatment violates the Flores Settlement’s requirement where ORR facilities must “comply with all applicable state child welfare laws and regulations,” and only provide children with “appropriate mental health interventions when necessary.”[5]

In July 2018, U.S. District Judge Dolly Gee ordered in Flores v. Sessions, that Texas state child welfare laws and regulations govern the administration of any psychotropic medication to children at the Texas detention center in question.[6] Therefore, legally authorized persons defined in the Texas Administrative Code, Texas Family Code, or a court, must disclose any administration of psychotropic medication to detained children. In an emergency situation, however, the detention center could administer medication if it is immediately necessary to provide medical care in order to prevent the imminent probability of death or substantial bodily harm to the child or others.[7]

This recent decision, while a step in the right direction, might be insufficient for the protection of detained children’s consent rights considering the varying state child welfare laws and regulations defining informed consent. In Arizona, for example, an ORR Director or a licensed physician can medically authorize psychotropic medication to detained children.[8] The ORR also has a policy that if a state law requires informed consent from a parent – and it is not possible or timely to retrieve it due to the inability to locate the parent – then the ORR may direct a facility to seek a court order authorizing the medication.[9] It is clear that child welfare laws were drafted without undocumented and parentless children in mind, and therefore appropriate policy specific to the needs of migrant families separated at the border is both necessary and urgent.


[1] Scott J. Schweikart, April 2018 Flores Settlement Suit Challenges Unlawful Administration of Psychotropic Medication to Immigrant Children, 21 AMA Journal of Ethics 67, 67-68 (2018).

[2] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 20-21 (C.D. Cal. Nov. 5, 2018).

[3] Samantha Schmidt, S. Trump Administration Must Stop Giving Psychotropic Drugs to Migrant Children Without Consent, Judge Rules, Washington Post (July 31, 2018)

[4] Id.

[5] U.S. Department of Health & Human Services, Office of Refugee Resettlement, Children Entering the United States Unaccompanied: Section 3. (2015)

[6] Flores v Sessions, No. CV 85-4544 DMG (AGRx), 23-24 (C.D. Cal. Nov. 5, 2018).

[7] Id. at 23.

[8] U.S. Department of Health and Human Services, Office of Inspector General,

Care Provider Facilities Described Challenges Addressing Mental Health Needs of Children in HHS Custody (2019).

[9] Id.

Mandating a Seat at the Table

Valerie Achille, CLS ’21

On September 30, 2018, then-Governor of California Jerry Brown signed into law SB 826,  making California the first state to mandate the inclusion of female directors on corporate boards.[1] By the end of 2019, all publicly traded companies must have a minimum of one female director on their board.[2] By 2021, boards with five directors must have at least two female directors and boards with six directors must have at least three female directors.[3] Corporations that fail to comply with the new requirements can be fined $100,000 for a first-time violation and then $300,000 for subsequent violations.[4]

The purpose of SB 826 is to increase the number of female directors in order to produce equitable gender representation in corporate boards. At the time the bill was introduced, women held only fifteen percent of board seats.[5] Moreover, a quarter of California’s publicly traded companies did not have any women at all on their boards.[6]

There have been concerns about the constitutionality of SB 826. On August 6, 2019, Judicial Watch, a conservative activist group, filed a lawsuit in Los Angeles County Superior Court challenging the new law.[7] In its complaint, Judicial Watch argues that SB 826  is unconstitutional under the California Constitution because it creates a quota system.[8] Since there is a specific number of women that must be on the board, the plaintiffs argue that the law effectively makes boards discriminate against qualified male candidates. For example, if two qualified candidates (one male and one female) apply and the board has not met its requirement for female directors, the board would be required to choose the female candidate solely based on her gender.[9]

With this constitutional challenge on the horizon, proponents of SB 826 must overcome an additional obstacle. The California Assembly Committee on Judiciary determined that in order to defend the constitutionality of this bill, the defenders of the bill would need to show specific evidence of discriminatory behavior; citing statistics that women are grossly underrepresented on corporate boards alone would not be sufficient.[10]

The short-term effects of SB 826 demonstrate that the law merits preservation. The new law has led to real change in the demographics of company boards. As of July 2019, all S&P 500 companies have at least one female director on their board of directors.[11] The number of Russell 3000 companies with all-male boards has decreased from 500 to 376 companies.[12]

Despite its good intentions and good results, SB 826 may not be able to withstand these constitutional challenges. The new law reveals the difficulty for states to make significant impact in gender representation while remaining within the parameters of the Constitution.

[1] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018)

[2] Associated Press. Lawsuit Challenges California Law Requiring Women on Boards A Conservative Activist Group Is Challenging California’s First-in-the-Nation Law Requiring Publicly Held Companies to Put Women on Their Boards of Directors. US NEWS, (Aug. 9, 2019)

[3] Id.

[4] Patrick McGreevy. Gov. Jerry Brown Signs Bill Requiring California Corporate Boards to Include Women. Los Angeles Times, (Sept. 30, 2018)

[5] Governor Signs Jackson Bill to Make California the First State to Require Women on Corporate Boards. Senator Hannah-Beth Jackson- Representing Senate District 19, (Oct. 2, 2018) state-require-women-corporate.

[6] Ibid.

 [7] Judicial Watch. Judicial Watch Sues California Over Gender Quota Mandate for Corporate Boards. Los Judicial Watch. (Aug. 9, 2019)

[8] Ibid.

[9] Maj Veseghi & Sarah Ray, Bill to Impose Gender Quotas in Boardrooms Reflects Larger Trend, Daily Journal (Sep. 11, 2018)

[10] Assembly Judiciary Committee Staff Report, at 6.

[11] Lawsuit Challenges Constitutionality of California Law Mandating Women on Public Company Boards. O’Melveny, (Aug. 14, 2019)

[12] Id.

What Now? The Aftermath of Common Cause v. Lewis

Andrew Sun, CLS ’21

            After gerrymandering reform efforts met disappointment at the Supreme Court in Rucho v. Common Cause, which held that federal courts did not have enough guidance by the federal Constitution to handle gerrymandering challenges, a glimmer of hope came from a North Carolina state court.[1] A three-judge panel sitting in Wake County, North Carolina ruled unanimously in Common Cause v. Lewis that North Carolina’s Constitution provided sufficient guidance in a gerrymandering challenge and held that state legislative maps were unlawful as against the North Carolina Constitution’s free election, equal protection, freedom of speech, and freedom of assembly clauses.[2] This decision has the potential to serve as a guide for litigants and judges in other states to formulate the legal arguments against gerrymandered state legislative maps, especially in a time when federal courts have shuttered their doors to these challenges.[3]

The specific remedies that the court ordered and the lessons of the decision’s aftermath may also prove to be particularly instructive to litigants and courts in other states seeking to remedy gerrymandered maps.  Below are the remedies discussed in the remainder of the article, although additional remedies were included in the decision.[4]

  • Timeline: The court required the legislature to create new maps within two weeks of the decision and also retained the authority to change scheduled election dates if doing so should become necessary to provide proper relief.[5] The new maps must then be approved by a court appointed expert referee from Stanford University.[6]
  • Election data: Partisan considerations, elections results, and other election data cannot be used in the drawing of the new districts, and intentional attempts to favor voters or candidates of one political party is prohibited.[7]
  • Maps used as starting points: The maps invalidated in the case may not be used as a starting point for the new maps.[8]
  • Incumbency protection: Drafters of the remedial maps are allowed to take steps such that incumbents are not pitted against each other in the same district.[9]
  • Public process: The remedial process must be conducted “in full public view,” which, at a minimum, requires all map drawings to occur at public hearings.[10]

At the time of the writing of this article, the court is reviewing remedial maps passed by both chambers of the North Carolina legislature.[11] Mitch Kokai, senior political analyst at the John Locke Foundation, says that the maps are likely to be approved by both the expert and the court because of strong bipartisan support.[12] PlanScore, a nonpartisan group that analyzes maps nationwide, suggested that the new maps are an improvement over their predecessors.[13]

Yet the redistricting process has not been without controversy. Although the process has taken place with an unprecedented degree of transparency, the method by which the baseline map was chosen and developed upon raised suspicion.[14] The starting map that the legislature worked from was taken from a set of 1,000 maps simulated by Jowei Chen, a political scientist who served as an expert for the plaintiffs challenging the gerrymandered maps.[15] These maps were not drawn in public view, as they were created before the trial as trial evidence.[16] Additionally, during the mapmaking process a private legal team for the GOP shared a link with members of the House of Representatives containing political data for each of Chen’s maps, describing which would be more or less advantageous for GOP candidates.[17] Although the link was quickly shut down, this email still caused a delay in the mapmaking process due to the uncertainty of whether the process was prejudiced as a result of any lawmaker being exposed to the contents of the link.[18]

Some have also raised more general arguments against the court’s remedy. One economist has posited that barring the legislature from using partisan considerations and encouraging them to follow county lines is mathematically likely to produce more skewed districts, against the goal of the court.[19] Others, like Charlotte Senator Jeff Jackson and J. Michael Bitzer, scholar of North Carolina politics at Catawba College, challenge that legislators should not be involved at all in the redrawing process, as they are motivated by their own political interests.[20] A specific concern is that although partisan considerations are not allowed in the mapmaking process, Republicans can still serve their own political interests through the court’s allowance of incumbency protection, since currently most incumbents are Republican.[21]

So far, it seems that the court has successfully compelled the legislature to change their maps, but only time will tell as to whether the decision will improve the rights of voters in North Carolina. Either way, those seeking to challenge gerrymandering in other states ought to keep a close watch on how the aftermath of Lewis unfolds.

[1] 139 S. Ct. 2484, 2507 (2019).

[2] No. 18 CVS 014001, 2019 N.C. Super. LEXIS 56 (N.C. Super. Ct., Wake County Sept. 3, 2019).

[3] See Amber Phillips, Why Democrats’ Big Gerrymandering Win in North Carolina Matters, Washington Post (Sept. 4, 2019),; see also Ella Nilsen & Tara Golshan, A North Carolina Court Just Threw Out Republicans’ Gerrymandered State Legislature Map, Vox (Sept. 3, 2019),

[4] For a complete description of the court’s remedies, see Lewis, 2019 N.C. Super. LEXIS 56 at *404-420. Other court orders such as compliance with the Voting Rights Act and country grouping requirements have not generated much controversy thus far. As a result, these remedies have been omitted.

[5] Id. at *413.

[6] Michael Wines, In North Carolina, New Political Maps Don’t End Old Disputes, N.Y. Times (Sept. 17, 2019),

[7] Lewis, 2019 N.C. Super. LEXIS 56, at *416-17.

[8] Id. at *417.

[9] Id. at *416.

[10] Id. at *418-19.

[11] Brent Van Vliet, New State Legislative Maps Head to N.C. Superior Court for Approval, Daily Tar Heel (Sept. 23, 2019),

[12] Id.

[13] Wines, supra note 6.

[14] Will Doran, Did NC Lawmakers Look at Data Banned by Gerrymandering Ruling on Day 1 of Redraw?, Raleigh News & Observer (Sept. 10, 2019),

[15] Mark Joseph Stern, Instead of Fixing Their Gerrymander, North Carolina Republicans Are Trolling the Court, Slate (Sept. 10, 2019),

[16] Id.

[17] Doran, supra note 14.

[18] Id.

[19] See Charles Blahous, Don’t Expect a Revolution from NC Gerrymandering Ruling, E21 (Sept. 13, 2019),

[20] Will Doran, New Political Maps Pass NC Legislature, Will Be Reviewed by Judges Who Ordered Redraw, Raleigh News & Observer (Sept. 17, 2019),; Wines, supra note 6.

[21] Van Vliet, supra note 11; see also Stern, supra note 15.