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Steven Trebach, CLS ’22

Having a criminal record is, in the United States, a clear detriment to one’s employability.[1] Given the makeup of the American prison system, this disadvantage to ex-felons face likely falls most heavily on the African-American community, which experiences a far higher rate of incarceration than other communities.[2]  This dynamic has become so explicitly racialized, that certain strategies, such as “Ban the Box ” which stop employers from requiring applicants to disclose a criminal record may have backfired.[3] Employers, wanting to avoid hiring people with felony records, assume African American men have undisclosed criminal records and avoid hiring them[4] In this context, the Second Circuit determined not to rehear en banc the case Mandala v. NTT Data, Inc.[5]

Mandala and Barnett (Plaintiffs), African-American men with past criminal records, were denied positions they had previously been offered at NTT Data, Inc. (NTT) in 2017 because of their criminal records.[6] In response, they brought a class action lawsuit against NTT, alleging the company had violated Title VII for racial discrimination.[7] Refusing to hire formerly incarcerated people, these Plaintiffs argue, “disqualifies a disproportionate number of African-American applicants” because of their aforementioned disproportionate rate of incarceration.[8] Despite the Plaintiffs proffering the statistical data demonstrating the higher rate of arrest and incarceration of African-Americans, when pleading their case, “the district court dismissed the complaint for failure to state a claim.”[9]  A 2-1 split panel of the Second Circuit would go on to uphold this ruling, indicating “it is error for Plaintiffs to simply presume that population-level statistics will accurately describe subgroups of that population,” specifically the subgroup of people qualified to work at NTT.[10]

The Second Circuit’s decision not to rehear this case en banc raised dissent beyond the original dissenting judge.[11] In addition to including reiterations of the statistical disparities in criminalization of African Americans,[12] a major crux of the dissent was that the panel majority was willing to make “inferences favoring the Defendants while declining to make obvious inferences for Plaintiffs that would rebut the central basis of the panel majority’s reasoning,” thus incorrectly applying Federal Rule of Civil Procedure 12(b)(6).[13] The ultimate fear is that the panel has created a higher than usual standard for pleading that threatens to founder valid civil rights litigation for failure to state a claim.[14]
The ABA Journal article that drew the attention of this Journal to the case seems to be firmly on the side of the dissent, ending the article with a dissenting judge’s statement that “the panel majority ‘uses a statistical sleight of hand to hide the clear implications of NTT’s blanket policy.’”[15]  While there is likely some truth to the dissent’s assertion, the potential problem may not be as far reaching as the dissent fears.

The panel and several other circuit judges, in a concurring opinion, respond to the dissent’s fears in a manner that seems to narrow the ultimate significance of the ruling to the specific facts of the Plaintiffs’ pleading. For example, a major crux of the dissent was that the panel erroneously narrowed what should be considered NTT’s applicant pool, relative to the general population.[16] The concurrence indicates, however, that the Plaintiffs’ complaint had, in fact, suggested the range of viable candidates for the position was narrower than the general population.[17] Thus, although this individual case may have been a step backward in the struggle to mitigate the burden of post-incarceration life on the African-American community, it could very well be a limited one.

[1] Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, The New York Times, Feb. 28, 2015.

[2] John Gramlich, Black imprisonment rate in the U.S. has fallen by a third since 2006, Pew Research Center – Fact Tank,  May 6, 2020 (African-American are incarcerated at a rate roughly seven times per capita higher than white Americans, and almost twice as high as Hispanic Americans).

[3] Casey Leins, More Data Needed to Determine Whether ‘Ban the Box’ Laws Work, U.S. News and World Report, Sept. 10, 2019 (“Some studies show that ban the box laws could actually have a negative impact: When employers aren’t allowed to ask about applicants’ criminal background early in the hiring process, they may be more likely to assume certain applicants – especially black and Hispanic men – have a criminal history, denying jobs to qualified applicants who don’t have a criminal history.”).

[4] See Id.

[5] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021).

[6] See Mandala v. NTT Data, Inc., 975 F.3d 202, 205-06 (2d Cir. 2020).

[7] See id. at 206.

[8] Id.

[9] See Id. 

[10] Id. at 211.

[11] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021).

[12] See id. (p.7 of Judge Chin’s dissent).

[13] See id. (p.1 of Judge Pooler’s dissent).

[14] See id. (p.1 of Judge Chin’s dissent).

[15] Debra C. Weiss, 2nd Circuit won’t consider reinstating suit alleging refusal to hire felons amounts to hiring bias, ABA Journal, Feb. 24, 2021.

[16] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021) (p.27 of Judge Chin’s dissent).

[17]  See id. (pp. 2-3 of concurrence).

Arthur Schoen, CLS ’22

On March 11, 2021, Washington became the first state[1] to extend the constitutional protection against mandatory life sentences without parole to individuals older than 18. In a ground-breaking 5-4 ruling, the Supreme Court of Washington held that the state’s aggravated murder statute, which carries a mandatory penalty of life without parole for adult offenders, was unconstitutional as applied to individuals between the ages of 18 and 21.[2]

In 2012, the United States Supreme Court held in Miller v. Alabama[3] that mandatory sentences of life without parole are unconstitutional when applied to individuals younger than 18, finding that such statutes violate the Eight Amendment protection against cruel and unusual punishments.[4] Instead, said the court, judges sentencing minor defendants must be allowed to exercise their discretion to craft an individualized sentence that considers the mitigating qualities of youth[5] – though the judge still may assign the full range of non-death-penalty punishments, including a sentence of life without parole. In 2018, the Washington Supreme Court took this even further, barring any sentences of life without parole for minors.[6]

Washington’s aggravated murder statute – amended in 2014 to fit with Miller’s guidelines[7] – provides for a mandatory sentence of life without the possibility of parole for anyone aged 18 and older who is convicted of aggravated murder in the state of Washington, and a range of possible penalties for minors.[8]

In this case, Washington’s Supreme Court held that under both the Eight Amendment and Washington’s state constitutional prohibition on cruel punishments,[9] the holding of Miller should be extended to cover convicted murderers aged 18-20 as well.[10] The court provided several grounds for this landmark ruling. The court cited neuroscience research indicating that there is no meaningful difference in maturity between 17 and 18-year-olds,[11] and that mental development continues into a person’s 20s.[12] Though no other state has banned mandatory life without parole for offenders aged 18-20,[13] the court cited criminal statutes from several other states that provide for differentiated penalties for individuals in their 20s on account of their youth.[14] The court also pointed out that the age of majority in the United States used to be 21,[15] and that some states continue to use 21 as the cut-off point;[16] moreover, even Washington’s own laws feature flexibility in different contexts regarding at what age a child becomes an adult.[17]

In a dissenting opinion here, Justice Susan Owens strongly disagreed with the court’s extension of the Miller rule. Pointing out the many contexts in which 18-year-olds are considered adults by the law, Justice Owens argued that there are no grounds to distinguish between youthful adults and other adults for purposes of mandatory minimum sentences.[18] In addition to various constitutional arguments, the dissent contended that the determination of adulthood is best left to a legislature – which has the capacity to review all the necessary evidence and considerations – rather than a court, which is “insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.”[19]

The two petitioners in this case were both convicted of brutal murders and sentenced to life without parole under Washington’s aggravated murder statute. The first, Dwayne Bartholomew, was convicted in 1981 for shooting the attendant of a gas station he was robbing; he was 20 years old.[20] The second, Kurtis Monschke, participated in the vicious group murder of a homeless person as part of an initiation into a white supremacist gang.  He was 19 when he committed that murder and he was convicted in 2003.[21] In granting their petition, the court ordered that Bartholomew and Monschke would each receive a new sentencing hearing that takes into account the petitioners’ ages at the time they committed those murders.[22]

Of course, it remains to be seen whether other states and courts might consider following Washington’s lead and doing away with mandatory sentences of life without parole for offenders aged 18-20. Though there have been voices arguing for such measures in the years since the Supreme Court’s Miller decision,[23] courts have not proven receptive to the argument until now, as numerous petitions citing Miller to argue for reconsideration of sentences given to 18-20-year-olds have been denied.[24] In 2018, the federal court in the District of Connecticut actually did grant one such petition, vacating a mandatory life without parole sentence for an 18-year-old as unconstitutional under the Eight Amendment;[25] however, the Second Circuit overturned that holding on appeal last year.[26] Now that Washington has come down strongly in favor of the efforts to extend Miller to the 18-20 age bracket, perhaps the legislatures and courts in other jurisdictions might be more willing to follow suit.

[1] In re Pers. Restraint of Monschke, 2021 Wash. LEXIS 152 at *43 (Mar. 11, 2021) (Owens, J., dissenting). See also Gene Johnson, Court Overturns Automatic Life Sentences for Young Killers, Seattle Times (Mar. 11, 2021), https://www.seattletimes.com/seattle-news/washington-state-supreme-court-overturns-automatic-life-sentences-for-young-killers/.

[2] In re Pers. Restraint of Monschke, 2021 Wash. LEXIS 152 (Mar. 11, 2021).

[3] Miller v. Alabama, 567 U.S. 460 (2012).

[4] See U.S. Const. Amend. VIII.

[5] Miller, 567 U.S. at 489.

[6] State v. Bassett, 192 Wn.2d 67 (2018).

[7] Monschke, 2021 Wash. LEXIS 152 at *18 n.15.

[8] Wash. Rev. Code Ann. § 10.95.030 (2015).

[9] Wash. Const. Art. I, § 14.

[10] Monschke, 2021 Wash. LEXIS 152 at *7-*8, *29.

[11] Id. at *19.

[12] Id. at *19-*20.

[13] See supra note 1.

[14] In re Pers. Restraint of Monschke, 2021 Wash. LEXIS 152 at *8 n.8 (Mar. 11, 2021).

[15] Id. at *9.

[16] Id. at *10 n.9.

[17] Id. at *16-*18.

[18] Id. at *30-31 (J. Owens, dissenting).

[19] Id. at *31 (J. Owens, dissenting).

[20] Id. at *2. See also Richard Carelli, High Court Reinstates Tacoma Man’s Murder Conviction, Associated Press (Oct. 10, 1995), https://apnews.com/article/16469a0184bfe4e74ecac1a31d8f73b9.

[21] In re Pers. Restraint of Monschke, 2021 Wash. LEXIS 152 at *2 (Mar. 11, 2021). See also Jeffrey M. Barker, White Supremacist Gets Life for Killing Homeless Man, Seattle Post-Intelligencer (June 1, 2004) (updated Mar. 15, 2011), https://www.seattlepi.com/local/article/White-supremacist-gets-life-for-killing-homeless-1146209.php.

[22] Monschke, 2021 Wash. LEXIS 152 at *29.

[23] See, e.g., Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole, 52 U. Rich. L. Rev. Online 83 (2018). See also Juvenile Sentencing Project, Consideration of Youth for Young Adults (Jan. 2020), https://juvenilesentencingproject.org/wp-content/uploads/model_reforms_consideration_of_youth_for_young_adults.pdf.

[24] See, e.g., Meas v. Lizarraga, 2016 U.S. Dist. LEXIS 184672 (C.D. Cal. Dec. 14, 2016); see further Cruz v. United States, 2018 U.S. Dist. LEXIS 52924 at *41 (D. Conn. Mar. 29, 2018) (listing several cases). See also, however, State v. Norris, 2017 WL 2062145 at *5 (N.J. Super. Ct. App. Div. May 15, 2017) (the court recognized that mandatory life without parole might not give 21-year-olds the opportunity for full consideration of mitigating age-related factors).

[25] Cruz, 2018 U.S. Dist. LEXIS 52924 at *41 (D. Conn. Mar. 29, 2018).

[26] Cruz v. United States, 826 F. App’x 49 (2d Cir. 2020).

Josie Wexler, CLS ’22

As COVID-19 began to spread, governors and local officials started to publicly disagree on restrictions. Governors in many states, including Florida, Georgia, and Mississippi, released orders meant to supplant local orders.[1] This trend has continued throughout the pandemic. In New York, when Mayor de Blasio announced a plan for closures in certain parts of Brooklyn and Queens, Governor Cuomo stepped in to overrule him and announced a new plan.[2] Cuomo’s broad emergency powers, granted by the New York Legislature, preempted de Blasio’s authority on certain issues, including lockdowns.[3] In most states, state law creates a similar balance of power between the governor and local officials during the pandemic.[4]

The easing of COVID-19 restrictions is once again calling attention to these conflicts. A number of states have ended their statewide mask mandates, but not all local officials want to do so. In Texas, state officials and the local officials of Austin and the surrounding Travis County are in the midst of a legal battle over a mask mandate. Texas Governor Greg Abbott announced the end of his state’s mask mandate in early March 2021. His Executive Order forbids “any jurisdiction” from requiring individuals to wear a mask unless a certain hospitalization threshold is reached.[5] Nonetheless, officials in Austin and Travis County continued to require masks.[6]

Despite pressure from the Texas Attorney General Ken Paxton to end the mandate, local officials refused to back down. Attorney General Paxton then filed suit.[7] Travis County Judge Lora Livingston initially denied the State’s request for a temporary restraining order, setting a hearing date for two weeks later.[8] At the hearing, the State argued that the Texas Disaster Act, which gave the Governor authority over the crisis response and his orders “the force and effect of law,” superseded the conflicting local mandate.[9] Local officials argued the Texas Health and Safety Code, which allows local officials to adopt public health measures, was not preempted under the Act.[10] Judge Livingston declined to grant an injunction, expressing skepticism that the Governor’s authority under the Act gave him overriding authority.[11]

Attorney General Paxton is expected to appeal,[12] and it seems likely that he could eventually win. The Texas Supreme Court previously overturned rulings from lower courts that allowed Austin and Travis County to prohibit dine-in service at bars and restaurants on New Year’s Eve, a restriction in conflict with an Executive Order allowing such service.[13]

As restrictions ease and people “return to normal,” it is likely that the disagreements between governors and local officials will continue. The pandemic has highlighted these issues, and it may have long-lasting repercussions on the balance of power between state and local authorities.[14]

[1] Sheila R. Foster, As COVID-19 Proliferates Mayors Take Response Lead, Sometimes in Conflicts with Their Governors, The Georgetown Law Project on State and Local Governmental Policy and Law, https://www.law.georgetown.edu/salpal/as-covid-19-proliferates-mayors-take-response-lead-sometimes-in-conflicts-with-their-governors/ (last visited Mar. 23, 2021). For a further discussion of how the balance between state and local governments work, see id.

[2] Jesse McKinley, & et al., How a Feud Between Cuomo and de Blasio Led to a Chaotic Virus Crackdown, N.Y. Times, (Oct. 12, 2020), https://www.nytimes.com/2020/10/12/nyregion/cuomo-coronavirus-orthodox-shutdown.html.

[3] See NY Legislature Votes to Repeal Cuomo’s Pandemic Emergency Powers, NBC New York (Mar. 5, 2021), https://www.nbcnewyork.com/news/politics/ny-legislators-poised-to-remove-gov-cuomos-pandemic-emergency-powers/2925931/.

[4] See Foster, supra note 1.

[5] Tex. Executive Order No. GA-34 (Mar. 2, 2021), https://open.texas.gov/uploads/files/organization/opentexas/EO-GA-34-opening-Texas-response-to-COVID-disaster-IMAGE-03-02-2021.pdf.

[6] Audrey McNamara, Texas Attorney General Sues Austin for Refusing to Lift Mask Mandate, CBS News (Mar. 12, 2021), https://www.cbsnews.com/news/mask-mandate-ken-paxton-texas-attorney-general-sues-austin-for-refusing-to-lift/.

[7] Attorney General Ken Paxton (@KenPaxtonTX), Twitter (Mar. 11, 2021, 3:25 PM), https://twitter.com/KenPaxtonTX/status/1370108518104174600.

[8] Jordan William, Judge Sides with Austin in Texas Mask Lawsuit, The Hill, (Mar. 12, 2021) https://thehill.com/homenews/state-watch/542990-judge-sides-with-austin-in-texas-mask-lawsuit?rl=1.

[9] Chuck Lindell, Judge Allows Austin Mask Mandate to Continue, Rejecting Texas AG Ken Paxton’s Arguments, Austin American-Statesman (Mar. 26, 2021), https://www.statesman.com/story/news/2021/03/26/austin-mask-mandate-continues-texas-ken-paxton-rejected/7011102002/.

[10] Id.

[11] Connor Perrett, A Judge Ruled Austin Can Continue to Enforce Mask Mandate After the Texas Attorney General Sued to Stop It, Business Insider (Mar. 27, 2021), https://www.businessinsider.com/austin-mask-mandate-judge-sides-against-texas-governor-2021-3.

[12] Id.

[13] Nadia Chaudhury, How the State of Texas Worked to Block Austin’s New Year’s Dine-In Curfew, Eater (Jan. 5, 2021), https://austin.eater.com/2021/1/5/22213624/austin-nye-dining-curfew-blocked-texas-state-coronavirus.

[14] See Richard Briffault, The Challenge of the New Preemption, 70 Stanford Law Review 1995 (2018) for a discussion of how state preemption over local law has changed in the last decade.

Julia Levitan, CLS ’22

On November 12, 2020, the First Circuit Court of Appeals ruled in favor of Harvard University in a high-profile affirmative action case.[1] The plaintiff, Students for Fair Admissions (SFFA), has already announced its intention to bring its suit against Harvard to the Supreme Court.[2]  If the Supreme Court does choose to hear the Harvard case, or any of the other SFFA lawsuits currently in the lower courts, the increasingly conservative Court could revisit and possibly upend the established affirmative action jurisprudence that dates back to the 1970s.[3] Under the current standard, a school’s admissions process can consider race as one factor in a multi-factor, holistic evaluation of applications in the interest of achieving the educational benefits of a diverse student body.[4] A school cannot engage in “racial balancing” or use quotas in admissions.[5]

The case began in 2014, when SFFA, a group founded by “anti-affirmative-action activist” Edward Blum, filed suit against Harvard College, alleging that the school’s undergraduate admissions process discriminates against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964.[6]  The plaintiffs argued that the college engages in impermissible racial balancing and relies too heavily on race as the dominant factor in the school’s admissions program.[7]  Harvard defended against these claims by arguing that its admissions process involves a “holistic” review that does not overemphasize or too heavily weigh the race of the applicant.[8] The first victory for Harvard came in 2019, when a district court judge found that the college’s admission program survives strict scrutiny, that is, that the school’s use of race is “narrowly tailored to further a compelling interest.”[9] The First Circuit affirmed the district court’s decision, holding that Harvard’s admission process does not violate Title VI.

But the First Circuit decision is unlikely to be the end of the road for the Harvard case, or for SFFA’s litigation battles against affirmative action policies. The Harvard case is one of many lawsuits the group is pursuing challenging affirmative action policies at institutions of higher education.[10]

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).

[2]  Benjamin L. Fu & Dohyun Kim, What to Expect Next in the Harvard Admissions Suit, The Harvard Crimson (Oct. 13, 2020), https://www.thecrimson.com/article/2020/10/13/harvard-sffa-next-steps.

[3] See Fisher v. University of Texas at Austin, 578 U.S. __ (2016) (slip op), Gratz v. Bollinger, 539 U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

[4] Fisher, 136 U.S. at 13.

[5] Id. at 7.

[6] Students for Fair Admissions, 2020 WL 6604313, at *1.

[7] Id. at *22-25.

[8] Id.

[9] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 191 (D. Mass. 2019), aff’d sub nom. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).

[10] See Anemona Hartocollis, Affirmative Action Cases May Reach Supreme Court Even Without Trump, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/11/09/us/affirmative-action-north-carolina.html.

Madeline Holbrook, CLS ’22

The rapid spread of the coronavirus disease (COVID-19) induced governments all over the world to create emergency safety measures in an attempt to slow the transmission between people.[1] In the United States, the most stringent of these safety measures are shelter-in-place orders, otherwise known as stay-at-home orders or lockdowns.[2] These measures are created by state governments, which direct citizens to stay in their homes as much as possible—and force “non-essential” businesses to close for the duration of the order.[3]

The state of Pennsylvania lived under one such order beginning on March 21, 2020.[4] On May 7, 2020, citizens and business owners from several different counties in Pennsylvania filed a lawsuit, County of Butler v. Wolf, in the Western District of Pennsylvania alleging that the stay-at-home order violated two Constitutional rights: the First Amendment right to assemble; and the fourteenth amendment right to substantive and procedural due process.[5]

On September 14, 2020, the district court ruled that stay-at-home orders violate the First Amendment right to assemble and the Fourteenth Amendment right to due process of law.[6] The court applied intermediate scrutiny to the restrictions. To pass intermediate scrutiny, a law must further an important government interest and do so by means substantially related to that interest. The court found that the restrictions were undertaken in support of a significant government interest: containing and managing the effects of COVID-19.[7] However, the government may not regulate free speech or free assembly in such a manner that a substantial part of the burden does not reach the government’s goals.[8] In short, stay-at-home orders are not a narrowly tailored solution to the problem. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of the “evil” it seeks to remedy.”[9] The court found that shelter-in-place orders impose too heavy a burden on citizens—taking away an express constitutional right—to solve too narrow a problem.

Turning to the Fourteenth Amendment analysis, the court also ruled that stay-at-home orders violate substantive due process.[10] Courts have long recognized the right of citizens to be out and about in public. [11] Lockdowns deny citizens of this right and create a default position of being kept inside. While governments are authorized to take emergency measures to preserve the public health, the court ruled that the timeline for such measures has been long exceeded.[12] The court ruled that the government is required to find a less burdensome means to mitigate the effects of COVID-19.[13] In short, while lockdowns may be acceptable in the short term, in the long term they are not a sufficiently narrowly tailored solution to the public health problem as to be found constitutional.

“Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end.”[14] In a case where liberty and safety go head-to-head, the Western District of Pennsylvania came down on the side of liberty.

[1] Jacob Gershman, A Guide to State Coronavirus Reopenings and Lockdowns, Wall St. J. (May 20, 2020), https://www.wsj.com/articles/a-state-by-state-guide-to-coronavirus-lockdowns-11584749351.

[2] Id.

[3] Id.

[4] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *8 (W.D. Pa. Sep. 14, 2020).

[5] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 2769105, at *2 (W.D. Pa. May 28, 2020).

[6] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *2 (W.D. Pa. Sep. 14, 2020).

[7] Id. at 14.

[8] Id. at 45.

[9] Frisby v. Schultz, 487 U.S. 474, 485 (1988).

[10] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *16 (W.D. Pa. Sep. 14, 2020).

[11] City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999); Papachristou v. Jacksonville, 405 U.S. 156, 164-165 (1972); Byofsky v. Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting).

[12] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *62 (W.D. Pa. Sep. 14, 2020).

[13] Id. at 23.

[14] Id. at 72-73.

Paul Riley, CLS ’22

2020 marks 55 years since the passage of the Voting Rights Act of 1965 (the “VRA”) and the year that John Lewis, a civil rights icon, was laid to rest.[1] Many will never forget the footage of John Lewis and other non-violent protestors being brutalized by police as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the scenes from the Edmund Pettus Bridge in Selma, Alabama rocked the collective conscience of the nation and President Lyndon B. Johnson. Enacted into law on August 6, 1965, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process.[2] More specifically, Section 2 of the VRA (“§ 2”) prohibits, “any standards, practices, or procedures” that abridge racial or language minorities’ voting rights.[3] However, the Supreme Court’s continual narrowing down of the scope of § 2 claims has limited minority groups’ ability to seek adequate relief under the VRA.

The Supreme Court’s desire to narrow the scope of § 2 claims is perhaps most apparent in its City of Mobile, Alabama v. Bolden decision. In Mobile, the Court held that § 2 violations “required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.”[4] Given that intent is extremely difficult to prove, Congress repudiated Mobile in its 1982 VRA Amendments ­– which rejected the Court’s “intent” test and now only required plaintiffs to show that an electoral practice had a discriminatory result.[5] With this new guidance, the Supreme Court, in Thornburg v. Gingles, established three preconditions for plaintiffs hoping to mount a § 2 claim. The minority group must be able to demonstrate that: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “it is politically cohesive,” and (3) “the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”[6]

Put simply, the Supreme Court notes that, “[u]nder § 2…the injury is vote dilution.”[7] Further, the Supreme Court has outlined two main types of vote dilution: (1) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters,” and (2) “the concentration of blacks into districts where they constitute an excessive majority.”[8] Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from making “influence-dilution” or “vote-packing” claims under this latter definition. In League of United Latin American Citizens v. Perry, the Supreme Court held that § 2 does not require the creation of “influence districts” – districts “in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”[9] Similarly, the Supreme Court, in Bartlett v. Strickland, held that § 2 does not require the creation of “crossover districts” – districts where the minority group’s influence is potentially large enough to elect their desired candidate with the support of white voters who cross over to add their support.[10] Without these “influence” and “crossover” districts, there is essentially no remedy available for vote-packing claims under § 2.

The Supreme Court has demonstrated an unwillingness to create cognizable vote-packing claims because it fears that doing so will obliterate its Gingles preconditions ­– which have been the baseline and bedrock of its § 2 jurisprudence.[11] However, the evolution of the Supreme Court’s § 2 jurisprudence (with respect to vote-packing) has been anything but clear.[12] Congress should resolve this tension by specifically creating a vote-packing claim under § 2. In doing so, Congress could compel the courts to establish a judicial framework to protect this other form of vote dilution, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities – excessively packed into these districts – with some form of relief under the VRA.

[1] N.J. Admin. Code § EX. ORD. No. 167 (2020) (“An Order Directing the U.S. and New Jersey Flags to Fly at Half-Staff in Honor of U.S. Representative John Lewis”).

[2] 52 U.S.C.A. § 10101.

[3] 52 U.S.C.A. § 10301 (“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

[4] Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (referencing City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)).

[5] S. REP. NO. 97-417, at 36 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 214.

[6] Gingles, 478 U.S. at 50–51.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 402 (2006).

[8] Gingles, 478 U.S. at 46 n.11.; Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993).

[9] Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (referencing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)).

[10] Id.

[11] Id. at 16.

[12] Voinovich, 507 U.S. at 154 (“We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2.”); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993); Gingles, 478 U.S. at 46 n.11–12 (1986).

Michael Tinti, CLS ’22

In Woolslayer v. Driscoll, the District Court for the Western District of Pennsylvania ruled on the intersection between First Amendment speech rights and the COVID-19 pandemic.[1] The plaintiff worked as the Director of Facilities Operation for defendants Indiana University of Pennsylvania for four years, receiving positive reviews from his employers throughout his tenure.[2] This changed in March of 2020, when—as we are all painfully aware—the COVID-19 pandemic first fastened its grip on United States’ workplaces. Upon learning that the spouse of a fellow employee had contracted the virus, the plaintiff—against the express recommendation from his supervisors—informed his fellow coworkers of this over email, and suggested they seek medical consultation.[3] Plaintiff was fired on the grounds that his supervisors “had lost confidence in [plaintiff’s] ability to effectively perform his assigned duties…”[4] Plaintiff subsequently commenced his suit, alleging a First Amendment retaliation claim under 42 U.S.C. § 1983.[5] Defendant moved to dismiss.[6]

Under the Supreme Court jurisprudence, a government employee whose speech was the but-for cause of their termination can be protected under the First Amendment Free Speech Clause if the speech was made as a citizen, the subject matter of the speech was of public concern, and the government-employer’s interest in the efficient functioning of the workplace does not outweigh the employee’s free speech interest.[7] The district court dispatched with the second and third issues quickly; the context of the COVID-19 pandemic bolstered the court’s conclusion that plaintiff spoke on a matter of public concern.[8]

The brunt of the district court’s First Amendment analysis, therefore, was focused on this first prong. Specifically, if plaintiff made his statements “pursuant to his official duties,” he would not be speaking as a citizen for First Amendment purposes.[9] The defendant pointed to the mode of plaintiff’s speech—an email sent from his work account exclusively to other university employees—as evidence the speech was made in plaintiff’s official capacity.[10] Yet the court dismissed this argument, finding that the mode of speech or its audience is not dispositive on the issue.[11] Rather, the court analyzed whether or not the plaintiff’s speech was “part of the work [he] was paid to perform on an ordinary basis.”[12] In his complaint, plaintiff asserted that his position did not grant him the power to speak in the name of a university policy maker, or to work in matters concerning the scope and nature of university functions.[13] Accepting these allegations as true, the court found that the plaintiff adequately plead he spoke as a citizen.

After finding that the plaintiff’s official capacity claim against the university president was not barred by the Eleventh Amendment, the court concluded that the plaintiff had adequately plead a retaliation claim under the First Amendment. The defendant’s motion to dismiss was thus denied.

Though the court ruled in favor of the plaintiff, the court’s reasoning is yet another indictment on the Garcetti jurisprudence. Paradoxically, an employee who has no professional responsibility to alert fellow employees of potential COVID exposure is protected by the First Amendment, yet an employee who does would not be protected, despite the clear public importance of performing such speech. Even if other state or federal statutes potentially protect against this form of retaliation, this critical chink in the First Amendment shield is troubling, to say the very least.

[1] 2020 U.S. Dist. LEXIS 186610 (W.D. Pa. 2020).

[2] Id at *2

[3] Id at *3.

[4] Id. at *3-4.

[5] Id. at *1.

[6] Id.

[7] See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers, 461 U.S. 138, 146 1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[8] Woolslayer, supra at *10-11.

[9] Garcetti, 547 U.S. at 421

[10] Woolslayer, supra at *8.

[11] Id. at *8-9.

[12] Id. (quoting De Ritis v. McGarrigle, 861 F.3d 444, 454 (3d Cir. 2017)).

[13] Woolslayer, supra at *9.

Paul Riley, CLS ’22

2020 marks 55 years since the passage of the Voting Rights Act of 1965 (the “VRA”) and the year that John Lewis, a civil rights icon, was laid to rest.[1] Many will never forget the footage of John Lewis and other non-violent protestors being brutalized by police as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the scenes from the Edmund Pettus Bridge in Selma, Alabama rocked the collective conscience of the nation and President Lyndon B. Johnson. Enacted into law on August 6, 1965, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process.[2] More specifically, Section 2 of the VRA (“§ 2”) prohibits, “any standards, practices, or procedures” that abridge racial or language minorities’ voting rights.[3] However, the Supreme Court’s continual narrowing down of the scope of § 2 claims has limited minority groups’ ability to seek adequate relief under the VRA.

The Supreme Court’s desire to narrow the scope of § 2 claims is perhaps most apparent in its City of Mobile, Alabama v. Bolden decision. In Mobile, the Court held that § 2 violations “required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.”[4] Given that intent is extremely difficult to prove, Congress repudiated Mobile in its 1982 VRA Amendments ­– which rejected the Court’s “intent” test and now only required plaintiffs to show that an electoral practice had a discriminatory result.[5] With this new guidance, the Supreme Court, in Thornburg v. Gingles, established three preconditions for plaintiffs hoping to mount a § 2 claim. The minority group must be able to demonstrate that: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “it is politically cohesive,” and (3) “the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”[6]

Put simply, the Supreme Court notes that, “[u]nder § 2…the injury is vote dilution.”[7] Further, the Supreme Court has outlined two main types of vote dilution: (1) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters,” and (2) “the concentration of blacks into districts where they constitute an excessive majority.”[8] Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from making “influence-dilution” or “vote-packing” claims under this latter definition. In League of United Latin American Citizens v. Perry, the Supreme Court held that § 2 does not require the creation of “influence districts” – districts “in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”[9] Similarly, the Supreme Court, in Bartlett v. Strickland, held that § 2 does not require the creation of “crossover districts” – districts where the minority group’s influence is potentially large enough to elect their desired candidate with the support of white voters who cross over to add their support.[10] Without these “influence” and “crossover” districts, there is essentially no remedy available for vote-packing claims under § 2.

The Supreme Court has demonstrated an unwillingness to create cognizable vote-packing claims because it fears that doing so will obliterate its Gingles preconditions ­– which have been the baseline and bedrock of its § 2 jurisprudence.[11] However, the evolution of the Supreme Court’s § 2 jurisprudence (with respect to vote-packing) has been anything but clear.[12] Congress should resolve this tension by specifically creating a vote-packing claim under § 2. In doing so, Congress could compel the courts to establish a judicial framework to protect this other form of vote dilution, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities – excessively packed into these districts – with some form of relief under the VRA.

[1] N.J. Admin. Code § EX. ORD. No. 167 (2020) (“An Order Directing the U.S. and New Jersey Flags to Fly at Half-Staff in Honor of U.S. Representative John Lewis”).

[2] 52 U.S.C.A. § 10101.

[3] 52 U.S.C.A. § 10301 (“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

[4] Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (referencing City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)).

[5] S. REP. NO. 97-417, at 36 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 214.

[6] Gingles, 478 U.S. at 50–51.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 402 (2006).

[8] Gingles, 478 U.S. at 46 n.11.; Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993).

[9] Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (referencing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)).

[10] Id.

[11] Id. at 16.

[12] Voinovich, 507 U.S. at 154 (“We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2.”); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993); Gingles, 478 U.S. at 46 n.11–12 (1986).

Mary Gardner, CLS ’22

When an NYPD officer abuses his authority, who holds him accountable? The short answer is: no one. After George Floyd and Breonna Taylor were murdered by police officers, millions of Americans risked the pandemic to protest police violence and push for comprehensive reform.[1] Local governments felt the pressure of civilian scrutiny. People across the country began to inquire with greater urgency—Who reviews police misconduct? Who disciplines officers? Who terminates officers who endanger civilians?

In New York City, the Civilian Complaint Review Board (“CCRB”) functions as the independent watchdog agency intended to increase police accountability by processing claims of misconduct and recommending disciplinary action to the Police Commissioner. The CCRB is comprised of civilian employees and has the power to “receive, investigate, mediate, hear, make findings, and recommend action on complaints against New York City police officers alleging the use of excessive or unnecessary force, abuse of authority, discourtesy, or the use of offensive language.”[2] Although the existence of an independent watchdog agency has been lauded as ‘progressive,’ New Yorkers have long wondered how the CCRB works—and if the CCRB works.

Over the summer, New York lawmakers passed a series of laws intended to increase police accountability and curb police violence.[3] This package included the repeal of 50-A, a law that shielded police disciplinary records from the public.[4] On August 20, 2020, 323,911 accusations of police misconduct were published by the New York Civil Liberties Union.[5] The data rings alarm bells.

Between 2001 and 2020, over 81,000 officers have received at least one complaint, but the CCRB has recommended disciplinary action for only 3,188.[6]  Of these, 798 received some kind of penalty or additional training and returned to their roles, and 890 were not disciplined at all.[7] In the last twenty years, only seven officers have been fired.[8]

The data tells us that NYPD Officer Michael Raso has fourteen substantiated allegations in eight separate complaints against him, but he has not been fired.[9] Officer David Leonardi has eleven substantiated allegations in seven separate complaints against him, but he remains on the force.[10] Officer Joseph Tallarine has 23 substantiated allegations in six separate complaints, but he has maintained his position and even earned several raises.[11]

Moderate liberals who favor gradual police reform—including President-Elect Joe Biden[12]—have long referred to violent officers as a “few bad apples.” The CCRB data demonstrates the New York City’s disciplinary measures systematically retain “bad apples” while creating the illusion of civilian oversight. The whole barrel is rotten.

Now that the failures of the CCRB are readily apparent, the path to reform should be clear. New York needs a civilian oversight agency that is truly led by civilians and has some teeth. Currently, the City Council selects five board members, the Mayor selects five, and the Police Commissioner selects three.[13] New York Mayors have long felt political pressure to appear ‘tough on crime,’ so the board members selected by the Mayor lean conservative. As a result, the communities most impacted by police violence remain severely underrepresented. If the CCRB is truly intended to represent the population, the Mayor’s five board seats should be elected by citizens in each borough. The current mayoral appointees are racially diverse, but lack socioeconomic diversity – three out of five are corporate lawyers.[14]

Furthermore, the CCRB should have the authority to actually discipline officers based on their findings. At the moment, the board can only recommend disciplinary action to the Police Commissioner who may disregard the recommendation completely if he chooses.[15] The new data demonstrates that the Police Commissioner follows the CCRB recommendation only twenty percent of the time.[16] The consequences of this design flaw are tremendous. Officers who engage in excessive force, sexual harassment, and abuse of authority, are often reprimanded by losing a few vacation days.[17] Giving the CCRB real disciplinary authority would give the organization a backbone. Taking disciplinary authority out from under the NYPD and placing it in the hands of democratically-elected CCRB is a necessary step in creating meaningful police accountability.

[1] Luis Ferré-Sadurní and Jesse McKinley, N.Y. Bans Chokeholds and Approves Other Measures to Restrict Police, N.Y. Times (June 17, 2020), https://www.nytimes.com/2020/06/12/nyregion/50a-repeal-police-floyd.html.

[2] CIVILIAN COMPLAINT REVIEW BOARD, https://www1.nyc.gov/site/ccrb/about/about.page (last visited Nov. 21, 2020).

[3] See Ferré-Sadurní, supra note 1.

[4] Innocence Staff, In a Historic Victory, Governor Cuomo Signs Repeal of 50-A Into Law, Innocence Project (June 9, 2020), https://innocenceproject.org/in-a-historic-victory-the-new-york-legislature-repeals-50-a-requiring-full-disclosure-of-police-disciplinary-records/.

[5] Ashley Southall, 323,911 Accusations of N.Y.P.D. Misconduct Are Released Online, N.Y. Times (Aug. 20, 2020), https://www.nytimes.com/2020/08/20/nyregion/nypd-ccrb-records-published.html.

[6] Ashley Southall, Ali Watkins and Blacki Migliozzi, A Watchdog Accused Officers of Serious Misconduct. Few Were Punished., N.Y. Times (Nov. 15, 2020), https://www.nytimes.com/2020/11/15/nyregion/ccrb-nyc-police-misconduct.html.

[7] Id.

[8] Id.

[9] George Joseph, Christopher Robbins, Jake Offenhartz and Jake Dobkin, Here Are the Current NYPD Officers with the Most Substantiated Misconduct Complaints, Gothamist (July 28, 2020, 1:32 PM), https://gothamist.com/news/here-are-current-nypd-officers-most-substantiated-misconduct-complaints.

[10] Id.

[11] Id.

[12] Reid J. Epstein and John Eligon, Biden Said, ‘Most Cops Are Good.’ But Progressives Want Systemic Change., N.Y. Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/19/us/politics/democrats-biden-defund-police.html.

[13] See CIVILIAN COMPLAINT REVIEW BOARD, supra note 2.

[14] Id.

[15] Id.

[16] See Southall, supra note 5.

[17] See Joseph, supra note 8.

Arpan Patel, CLS ’22

The ongoing pandemic has wrought devastation on American small and medium sized enterprises (SMEs). These businesses make up the critical “Main Street” segment of the American economy – they provide work for 45 million Americans and their workforce accounts for nearly 40% of private sector employees.[1] Yet, in the three months ending in June 2020, 1.4 million SMEs either closed or suspended operations.[2] The recession on Main Street impedes our ability to manage and recover from the pandemic.

In response, Congress directed the Board of Governors of the Federal Reserve (Fed) and U.S. Department of the Treasury (Treasury) to create a program to support SMEs in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).[3] Pursuant to this mandate, and under authority of section 13(3) of the Federal Reserve Act (FRA),[4] the Fed and the Treasury created the Main Street Lending Program (MSLP or “Program”) to “[e]nsure credit flows to small and mid-sized businesses…who were in sound financial condition before the onset of the COVID-19 pandemic.”[5] The Fed, through the MSLP, is authorized to purchase up to $600 billion in loans made to SMEs, with Treasury providing $75 billion in equity investment to absorb losses that accrue to the MSLP.[6]

However, the MSLP has received only modest use since its inception, leading many to question its utility.[7] As of September 22, 2020, banks in the Program had issued or initiated $2 billion of loans, which amounts to 0.3% of the total funds available to the MSLP.[8] And as of August 10, 2020, only 160 out of the 522 banks in the program had publicized that they are accepting loan applications from new customers.[9]

The MSLP’s nonuse is a function of practical, legal, and political deficiencies.

On a practical level, the overly restrictive terms for borrowers combine with the unattractive terms for lenders to discourage use by SMEs and banks alike.[10] Many SMEs on the demand side of the Program are either explicitly shut out by the restrictive eligibly terms or are discouraged by the onerous borrowing terms. Similarly, the complexity increases the costs to the bank to originate MSLP loans in the first place, which spoils the Program’s appeal on the supply side.[11]

On a legal level, section 13(3) of the FRA imposes restrictions on the Fed’s ability to administer the MSLP successfully.[12] Notwithstanding Congressional attempts to navigate these legal restrictions in the CARES Act, the MSLP remains handicapped by at least four structural legal deficiencies. First, Congress attempted to satisfy the Fed’s loss protection requirement in subsection (B)(i) by mandating the first-loss investment by Treasury. However, Treasury Secretary Mnuchin has leveraged this equity stake to effectively increase the price and terms of the MSLP, which is a major driver of the Program’s nonuse.[13] Second, Congress suspended sub silento the subsection (B)(i)’s requirement that lending be designed to provide liquidity to the financial system as a whole (as opposed to real economy borrowers like individual businesses) by implying that the Fed in fact does have that power: Section 4003(b) of the CARES Act authorizes Treasury to invest in “programs or facilities established by the Board . . . for the purpose of providing liquidity to the financial system that supports lending to eligible businesses, States, or municipalities…”[14] Sub silento lawmaking comes with significant costs in terms of clarity, uncertainty, and accountability for agencies.[15] Third, the inability of the Fed to lend to any individual counterparties under (B)(i) and (iii) means that any aid under section 13(3) must come as standardized product that has broad-based eligibility. To create a standardized product that is useful for hundreds of thousands of SMEs with unique borrower profiles is not, as Chairman Powell said, “practicable.”[16] And fourth, the Fed is bound by its own Regulation A, which requires any 13(3) lending be done at a penalty rate at a premium to the market rate in normal circumstances.[17] While the Fed has plenary authority to amend Regulation A, its continued effectiveness operates as a self-imposed restriction on the Fed’s ability to offer more attractive terms in the MSLP.

On a political level, the MSLP, its ineffective-by-design structure and the intertwining of Fed and Treasury, is pushing the Fed into legitimately concerning political territory.[18] In the MSLP, Congress is asking the Fed to act in an industrial policy capacity (instead of its typical monetary policy capacity) by providing credit directly to the real economy. This is a role for which the Fed has neither the institutional nor operational capacity. Moreover, this new role opens up the Fed to political lobbying. [19]  Indeed, multiple revisions to the terms MSLP has been the result of intense lobbying pressure from stakeholders across the spectrum.[20]

Despite all this, the Fed continues to insist that the MSLP is effective. Fed officials excuse the nonuse by pointing to the fact that SMEs have made use of the Payroll Protection Program (which has now expired) or taken out loans from nonbank lenders.[21] Further, Fed Chairman Jerome Powell said that if conditions get worse, the MSLP stands ready, as a “backstop.”[22] But this means that, without amendments to the Program, a future downturn in the economy will force SMEs to either shut their doors or turn to the unwelcoming embrace of the MSLP. Before that day comes, the Fed, Treasury, and Congress must revisit the provision of SME pandemic aid if they hope to save Main Street.[23]

[1] Nick Timiaraos & Kate Davidson, Fed, Treasury Disagreements Slowed Start of Main Street Lending Program,

Wall Street Journal (July 12, 2020), https://www.wsj.com/articles/fed-treasury-disagreementsslowed-start-of-mainstreet-lending-program-11594558800

[2] Gretchen Morganson et al., Misery on Main Street: COVID-19 takes a grim toll on America’s small businesses, NBC News (Sep. 23, 2020), https://www.nbcnews.com/business/economy/misery-main-street-covid-19-takes-grim-toll-america-s-n1239524

[3] CARES Act § 4003

[4] 12 U.S.C. § 343(3)

[5] Press Release, Board of Gov. of the Fed. Res., Federal Reserve takes additional actions to provide up to $2.3 trillion in loans to support the economy (Apr. 9, 2020), https://www.federalreserve.gov/newsevents/pressreleases/monetary20200409a.htm

[6] Id.

[7] Jeanna Smialek, A Coffee Chain Reveals Flaws in the Fed’s Plan to Save Main Street, N.Y. Times (Jul. 9, 2020), https://www.nytimes.com/2020/07/09/business/economy/federal-reserve-treasury-main-street.html

[8] Hybrid Hearing With Federal Reserve Chair Jerome H. Powell Before Select Subcomm. on the Coronavirus Crisis, 116th Cong. (September 23, 2020)

[9] Congressional Oversight Commission, The Fourth Report of the Congressional Oversight Commission, August 21, 2020, at 5, https://coc.senate.gov/sites/default/files/2020-08/COC%204th%20Report_08.21.2020%20with%20Appendix%208-27%20update.pdf

[10] Christopher Condon & Catarina Saravia, Banks Blame Tight Terms for Fed Main St Program’s Slow Start, Wash. Post (Sep. 29, 2020, 8:30 P.M.) https://www.washingtonpost.com/business/on-small-business/banks-blame-tight-terms-for-fed-main-st-programs-slow-start/2020/09/29/d7165f8a-027f-11eb-b92e-029676f9ebec_story.html; see also Laura Noonan et al., US Main Street virus era loans programme largely shunned, Financial Times (Jul. 1, 2020), https://www-ft-com.ezproxy.cul.columbia.edu/content/c09da6a2-39a9-4523-bd9a-1061e9865b66

[11] Howard Schneider, Fed’s Main Street lending may be missing core group of firms – survey, Reuters (Sep. 29, 2020, 2:50 PM) https://www.reuters.com/article/idUSKBN26K39M

[12] Under the subsection (A), before the Fed can purchase a loan in the MSLP, it must “obtain evidence that such participant . . . is unable to secure adequate credit accommodations from other banking institutions.” Subsection (B) imposes further obligations: (i) the Fed program must be designed to provide liquidity to the financial system as a whole, and the terms of the loans are sufficient to protect taxpayers from losses; (ii) the Fed must establish procedures to prohibit borrowing by insolvent counterparties; (iii) the program may not be designed to assist a single company; and (iv) the Fed must receive approval from the Secretary of the Treasury before authorizing lending under the provision. 12 U.S.C. § 343(3)

[13] Jeanna Smialek & Alan Rappeport, Fear of Risk Could Diminish the Economic Rescue by the Treasury and Fed, N.Y. Times (May 18, 2020), https://www.nytimes.com/2020/05/18/business/economy/economic-stimulus-treasury-fed-risk.html

[14] CARES Act § 4003.

[15] Lev Menand, Unappropriated Dollars: The Fed’s Ad Hoc Facilities and the Rules That Govern Them (Euro. Corp. Gov. Institute, Law Working Paper No. 518/2020, May 16, 2020), https://ssrn.com/abstract=3602740

[16] See supra note 9

[17] 12 C.F.R. 201.4(d)(7); see also 84 Fed. Reg. 39723 (Aug. 12, 2019)

[18] David T. Zaring, The Government’s Economic Response to the COVID Crisis (July 28, 2020), https://ssrn.com/abstract=3662049; see also Chrstine A. Desan et al., The Constitution and the Fed after the COVID-19 Crisis (Univ. of Colo. Law Legal Studies, Paper No. 20-38, June 24, 2020), https://ssrn.com/abstract=3635059

[19] Menand, supra note 14

[20] Id.

[21] See supra note 9

[22] Id.

[23] William English & Nellie Liang, How to fix the Fed’s broken Main Street Lending Program, L.A. Times (Oct. 8, 2020) https://www.latimes.com/opinion/story/2020-10-08/op-ed-how-to-fix-main-street-lending-program

Joe Sullivan, CLS ’22

It has been five years since the Supreme Court’s historic marriage equality ruling in Obergefell v. Hodges.[1]  However, on the first day of the Supreme Court’s 2020-2021 term, two conservative justices voiced their continued disapproval of Obergefell.  Kim Davis, a county clerk from Kentucky, petitioned for a writ of certiorari for her case against one of the gay couples to whom she denied a marriage license in the wake of Obergefell.[2]  The court denied Davis’ petition, but included a statement on its denial from Justice Clarence Thomas, joined by Justice Samuel Alito, that alarmed LGBTQ+ Americans and allies.

Justice Thomas, who joined Chief Justice John Roberts’ dissent in Obergefell,[3] wrote that, “Davis may have been one of the first victims of th[e] Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.”[4]  Justice Thomas opined that a legislative solution would have been preferable to the Court “bypass[ing] that democratic process.”[5]  Finally, Thomas’ statement ended with a possible ultimatum: “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix.”[6]

Is Justice Thomas’ statement an implicit call for plaintiffs to bring new religious liberty challenges to Obergefell?  It is too early to tell, but the prospect of such challenges facing a majority-conservative Court (should the Senate confirm Judge Amy Coney Barrett’s nomination) has been enough to cause legal analysts to question the security of LGBTQ+ Americans’ right to marry.[7]

Should the Court overrule Obergefell and resort to legislative solutions, it is possible that these statutes will be subject to religious liberty challenges raised under the Religious Freedom Restoration Act (RFRA).[8] The RFRA requires the government to show that it is burdening a religion only if it furthers a compelling interest, and is the least restrictive means of furtherance.[9]  RFRA-based challenges to marriage equality statutes, if successful, could potentially dilute LGBTQ+ American’s right to marry, making it conditional on a least-restrictive application.  While this standard is heightened, it is not impossible to overcome.[10]  However, the added burden on the government could potentially usher in an erosion of some freedoms for which LGBTQ+ Americans have fought.

[1] Obergefell v. Hodges, 576 U.S. 644 (2015).

[2] Michael C. Dorf, In Gratuitously Attacking Marriage Equality, Clarence Thomas Accidentally Raised an Important Question About the Scope of Religious Liberty, Verdict (Oct. 14, 2020), https://verdict.justia.com/2020/10/14/in-gratuitously-attacking-marriage-equality-clarence-thomas-accidentally-raised-an-important-question-about-the-scope-of-religious-liberty.

[3] 576 U.S. at 686.

[4] Davis v. Ermold, No. 19-926, slip op. at 2 (U.S. Oct. 5, 2020).

[5] Id. at 1.

[6] Id. at 4.

[7] See Joan Biskupic, With court in flux, Thomas and Alito attack same-sex marriage ruling, CNN (Oct. 5, 2020, 6:16 PM), https://www.cnn.com/2020/10/05/politics/thomas-alito-obergefell-same-sex-marriage-analysis/index.html; Dorf, supra note 2; Adam Liptak, Justices Thomas and Alito Question Same-Sex Marriage Precedent, N.Y. Times (Oct. 5, 2020), https://www.nytimes.com/2020/10/05/us/politics/thomas-alito-same-sex-marriage.html.

[8] 42 U.S.C. § 2000bb-1.

[9] Id.

[10] See, e.g., U.S. v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) (holding that the government met the RFRA’s least restrictive means standard in criminalizing possession of eagle feathers without a proper permit).

Olivia Berci, CLS ’22

On November 10^th, a week after the presidential election, the Supreme Court heard oral arguments in two consolidated cases challenging the constitutionality of the Affordable Care Act (ACA).[1] Hanging in the balance is not only the insurance tens of millions of Americans gained through the ACA’s premium subsidies (that help enrollees cover their monthly insurance payments) and the law’s expansion of Medicaid,[2] but also the provisions of the law that protect people with preexisting conditions.[3]

Before the ACA, refusing to issue insurance to people with certain health conditions, excluding from coverage care associated with certain illnesses, and charging higher premiums based on a person’s health status were common practices.[4] Fifty-four million Americans have a preexisting condition that would have led to coverage denial in the individual insurance market before the ACA,[5] and that number will likely worsen as coronavirus cases in the United States surge well over 10 million.[6]

COVID-19 will likely become a preexisting condition.[7] In fact, having taken hydroxychloroquine, an anti-malaria drug President Trump pugnaciously promoted as a treatment for the coronavirus,[8] could have impaired one’s access to coverage before the ACA.[9] Should the Supreme Court strike down the ACA, a person who applies for health insurance who is sick or who has been sick with coronavirus could be “turned down, charged more, or offered a plan that excludes coverage for COVID-19 or related symptoms.”[10] Insurers could also cancel coverage if someone develops a health problem linked to an undisclosed coronavirus diagnosis.[11] In other words, an insurer could rescind someone’s policy when they develop an expensive heart or lung condition if they have coronavirus antibodies — even if they were unaware of their exposure to the virus.[12] Analysts further suggest that someone who tests negative for COVID-19 could be discriminated against if insurers determine that those who seek testing carry a higher risk of contracting the virus,[13] which could disincentivize individuals from seeking testing.

To rewind: In 2012, in NFIB v. Sebelius, the Supreme Court narrowly held that it would be unconstitutional for Congress to force Americans to purchase health insurance.[14] But, the Court upheld the ACA’s individual mandate by interpreting the statute as giving people a choice between buying insurance or paying a tax to the IRS.[15] In 2017, Congress zeroed the tax penalty for not purchasing health insurance.[16]  The ACA is still on the books and includes an instruction that people “shall” buy health insurance,[17] but, when Congress eliminated the tax associated with the coverage requirement, the ACA’s instruction became unenforceable: “Neither the Act nor any other law attache[d] negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.”[18]

Back to present day: The most recent challenge against the ACA was originally brought by a group of 20 attorneys general from Republican states.[19] They claim that the mandate, without the penalty, no longer offers people a choice between complying with the law or facing a tax, and, thus, represents an unconstitutional command to purchase insurance. [20] Moreover, the plaintiffs argue, the entire ACA must be struck because the mandate is inseverable from the rest of the law.[21] Legal scholars argue that neither claim is legally defensible.[22]

A Democratic Congress could revive the ACA by passing a law that cures the constitutional command problem – either by imposing a nominal tax penalty for foregoing insurance or by striking the instruction altogether.[23] However, if Republicans maintain control of the Senate, Senate Majority Leader Mitch McConnell would likely block any attempt by President Biden to restore the law, and, even if Democrats pick up both Georgia Senate seats in the January runoff, Democrats would have to reckon with the Senate’s filibuster.[24]

The ACA may yet survive. Even if the challengers have the votes on the constitutional merits of the challenge, they still have to win the Court over on standing – as a threshold matter – and severability, for the entire law to fall.[25] But, to be clear, the only source of protection for Americans with pre-existing conditions is the ACA.[26] A decision in the case is expected sometime in 2021.[27]

[1] See Transcript of Oral Argument, California v. Texas, 140 S. Ct. 1262 (2020) (No. 19-840), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-840_i426.pdf [https://perma.cc/H3P2-MLW8].

[2] See Chart Book: Accomplishments of Affordable Care Act, Center on Budget and Policy Priorities, https://www.cbpp.org/research/health/chart-book-accomplishments-of-affordable-care-act [https://perma.cc/X7GE-RWFE].

[3] See Katie Keith, What It Means To Cover Preexisting Conditions, Health Affairs Blog, https://www.healthaffairs.org/do/10.1377/hblog20200910.609967/full/ [https://perma.cc/5RRJ-V5Y2].

[4] See Larry Levitt, Protecting People With Pre-Existing Conditions Isn’t As Easy As It Seems, Kaiser Family Foundation, https://www.kff.org/policy-watch/protecting-people-with-pre-existing-conditions-isnt-as-easy-as-it-seems/ [https://perma.cc/CFQ6-L5G3].

[5] See Nearly 54 Million Americans Have Pre-Existing Conditions That Would Make Them Uninsurable in the Individual Market without the ACA, Kaiser Family Foundation, https://www.kff.org/health-reform/press-release/nearly-54-million-americans-have-pre-existing-conditions-that-would-make-them-uninsurable-in-the-individual-market-without-the-aca/ [https://perma.cc/2PL8-7YJV].

[6] See Covid in the U.S.: Latest Map and Case Count, N.Y. Times https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html [https://perma.cc/HS5J-8EY5]; See Keith, supra note 3.

[7] Andy Slavitt & Nicholas Bagley, America’s Health Care Is Under Existential Threat, N.Y. Times, https://www.nytimes.com/2020/09/23/opinion/trump-supreme-court-obamacare.html [https://perma.cc/YXW8-JLMQ] (“[C]ontracting the virus is the ultimate pre-existing condition.”).

[8] See Peter Baker et al., Trump’s Aggressive Advocacy of Malaria Drug for Treating Coronavirus Divides Medical Community, N.Y. Times, https://www.nytimes.com/2020/04/06/us/politics/coronavirus-trump-malaria-drug.html [https://perma.cc/3Y4R-AZEZ].

[9] See Levitt, supra note 4.

[10] Karen Pollitz et al., Is COVID-19 a Pre-Existing Condition? What Could Happen if the ACA is Overturned, Kaiser Family Foundation, https://www.kff.org/policy-watch/is-covid-19-a-pre-existing-condition-what-could-happen-if-the-aca-is-overturned/ [https://perma.cc/HYY4-PREX].

[11] See Tara Straw & Aviva Aron-Dine, Commentary: ACA Repeal Even More Dangerous During Pandemic and Economic Crisis, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/health/commentary-aca-repeal-even-more-dangerous-during-pandemic-and-economic-crisis [https://perma.cc/2QRM-TCLZ].

[12] Id.

[13] See Pollitz et al., supra note 10.

[14] See National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012).

[15] Id. at 563.

[16] See Heather Long, The final GOP tax bill is complete. Here’s what is in it., Wash. Post.,   https://www.washingtonpost.com/news/wonk/wp/2017/12/15/the-final-gop-tax-bill-is-complete-heres-what-is-in-it/ https://perma.cc/48E8-J7BS].

[17] 26 U.S.C. § 5000A(a).

[18] 567 U.S. at 568.

[19] See Texas v. United States, 945 F.3d 355 (5th Cir. 2019).

[20] See, e.g., Brief of Plaintiffs in Support of Application for Preliminary Injunction at 1, Texas v. United States, 945 F.3d 355 (5th Cir. 2019) (No. 18-cv-00167-O).

[21] Id.

[22] See generally Brief for Professors Michael C. Dorf and Martin S. Lederman as Amici Curiae in Support of Petitioners on Question Two, California v. Texas, 140 S Ct. 1262 (2020) (No. 19-840).

[23] See Nicholas Bagley, the Fallout of a SCOTUS Health-Care Decision Could Be Quick, Devastating, and Irreversible, Atlantic, theatlantic.com/ideas/archive/2020/11/fallout-scotus-health-care-decision/617048/ [https://perma.cc/RLK7-KARL].

[24] Id.

[25] See Transcript of Oral Argument, California v. Texas, 140 S. Ct. 1262 (2020) (No. 19-840), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-840_i426.pdf [https://perma.cc/H3P2-MLW8].

[26] Some states have moved to ensure the ACA’s protections prohibiting discrimination on the basis of health history are written into state law. See Sabrina Corlette & Emily Curran, Can States Fill the Gap if the Federal Government Overturns Preexisting Condition Protections?, COMMONWEALTH FUND, https://www.commonwealthfund.org/blog/2019/can-states-fill-gap-preexisting-condition-protections. [https://perma.cc/7VT5-3WR5]. But, before the ACA, state efforts to enact protections for preexisting conditions had destabilizing effects on state insurance markets. See id. (“[S]tate efforts to require insurers to cover people with preexisting conditions resulted in large premium spikes and, in some cases, caused insurers to exit the market.”).

[27] Amy Howe, Argument analysis: ACA seems likely to survive, but on what ground?, SCOTUSblog, https://www.scotusblog.com/2020/11/argument-analysis-aca-seems-likely-to-survive-but-on-what-ground/ [https://perma.cc/U9EP-3XEC].

Maxwell Potluri, CLS ’22

For the second time in two years, the Supreme Court is the focus of public attention regarding a contentious confirmation hearing. In 2018, Justice Brett Kavanaugh’s confirmation highlighted the increasingly partisan battle over the nation’s highest court. Now, the Senate has confirmed Judge Amy Coney Barrett to the seat vacated by Justice Ruth Bader Ginsburg, which promises to tip control of the Court decisively in favor of its conservative wing. Judge Barrett’s nomination was particularly contentious because it came just before the 2020 Presidential Election. Her confirmation raises the question of how Democrats, should they win power, will attempt to deal with a more conservative Supreme Court.

Proposals for Supreme Court reform are not new — indeed, one of the more radical proposals is for Democrats to expand or “pack” the Court, something President Roosevelt attempted and failed to do in the 1930s. However, the Court’s size is not fixed: in the 1800s, its membership grew and shrank before reaching its current composition of nine justices.[1] Democratic president-elect Joe Biden has so far remained elusive on whether he would be willing to pack the Court. Despite calls from the progressive left, Biden has only gone so far as to propose a bipartisan commission of scholars to study possible judicial reform.[2] Liberal proponents of court expansion argue that Republicans are already effectively packing the courts, citing Senator McConnell’s tactics blocking President Obama’s nominations (including Judge Merrick Garland), and arguing that it would be “political suicide” for Democrats not to respond in turn.[3]

However, there are grave political implications inherent in any attempt to expand the Court. Roosevelt’s court-packing debacle, a response to the Court striking down New Deal legislation, was a political power play cloaked as an institutional reform.[4] Today, a court-packing scheme would be a similar move. It could come at the cost of increased partisanship and major political upheaval.[5] And while an expanded court might satisfy the immediate policy goals of liberals, the Court’s decisions on the most contentious issues would have less authority, and the consequences for the rule of law would be unpredictable.[6]

Legal scholars have suggested many Supreme Court reforms intended to address some of the perceived underlying issues with the Court.[7] One proposal is to replace life tenure with a system of staggered, non-renewable eighteen-year terms; arguably, this system could solve or mitigate three major problems: strategic retirements, incentives for presidents to appoint younger nominees, and the randomness of Supreme Court appointment distributions among presidents.[8] Whereas court-packing schemes inherently seek the advantage of one political party, proponents of the term limit system argue that it would be “party and ideology neutral” over time.[9] Such a change could reduce the political desires for court-packing, and would address the Court’s oft-criticized life tenure appointments.[10] However, term limits are certainly constitutionally suspect, as Article III makes no mention of them.[11] They also run contrary to the thought of at least some of the founders, who emphasized that the necessary constraint on the independent judiciary should be the requirement of “good behavior.”[12]

To implement such a reform would likely require a Constitutional amendment rather than a simple statute — a significant barrier to practical implementation.[13] An alternative, typically dismissed but worthy of consideration, is that the Court itself adopt a self-governing norm that justices retire after eighteen years of service, either through its own internal traditions or through the nomination procedure.

Since Supreme Court term limits may be unconstitutional if created by statute, and because the passage of a Constitutional amendment creating term limits is unlikely, perhaps the best chance at reforming the Court (without expanding its membership) is the development of such norms. If the only alternative begins to look like the effective subjugation of the Court to legislative and executive will via court-packing, the justices may choose instead to preserve their institution’s independence in an atmosphere of growing political polarization, scrutiny, and public pressure by creating an internal, self-governing norm for principled retirement. While it is true that this approach would likely have a major collective action problem initially, it could work. For instance, the Second Circuit has established a norm that all judges take senior status on the first day that they are eligible.[14] Congress could further encourage the development of this norm on the Supreme Court by enticing justices to retire at a certain time through the offer of more generous retirement benefits to the justices who desire once they have served eighteen years.[15]

Such a development of retirement norms may be impossible, however, for a Court and a country so accustomed to life tenure on the high court that the retirement of Justice David Souter “at the relatively youthful age of 69” came as a surprise.[16] For now, it remains to be seen whether Amy Coney Barrett’s confirmation will serve as a catalyst for a greater partisan fight over the Court’s future in the upcoming presidential term.

[1] See Kyle Sammin, It’s Definitely Time To Pack The Supreme Court, But For Entirely Practical Reasons, Federalist, (July 13, 2018), https://thefederalist.com/2018/07/13/definitely-time-pack-supreme-court-entirely-practical-reasons/.

[2] See Charlie Savage & Katie Glueck, Biden Punts on Expanding the Supreme Court, Calling for a Panel to Study Changes, N. Y. Times, (Oct. 22, 2020), https://www.nytimes.com/2020/10/22/us/politics/biden-supreme-court-packing.html.

[3] Michael Klarman, Why Democrats Should Pack the Supreme Court, Take Care, (Oct. 15, 2018), https://takecareblog.com/blog/why-democrats-should-pack-the-supreme-court.

[4] See Bob Bauer, Don’t Pack the Courts, Atlantic, (July 6, 2018), https://www.theatlantic.com/ideas/archive/2018/07/dont-pack-the-courts/564479/.

[5] See Ryan D. Doerfler & Samuel Moyn, Reform the Court, but Don’t Pack It, Atlantic, (Aug. 8, 2020), https://www.theatlantic.com/ideas/archive/2020/08/reform-the-court-but-dont-pack-it/614986/.

[6] See Bauer, supra note 4.

[7] See generally Roger C. Cramton & Paul D. Carrington, The Supreme Court Renewal Act: A Return to Basic Principles, in Reforming the Court: Term Limits for Supreme Court Justices 467 (Roger C. Cramton & Paul D. Carrington eds., 2006).

[8] See James E. DiTullio & John B. Schochet, Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms, 90 Va. L. Rev. 1093, 1096–97 (2004).

[9] Id. at 1144.

[10] See Gregg Easterbrook, The Case for Supreme Court Term Limits, 26 Intl. Soc’y Barristers Q. 373, 374 (1991) (arguing that the only comparable institution of power existing in America where individuals become “vested in the gray and unremovable” is the Catholic Church).

[11] See U.S. Const. art. III, § 1.

[12] The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[13] See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 Yale L. J. 148, 173 (2019).

[14] See Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 Harv. J. L. & Pub. Pol’y 769, 874–75 (2006).

[15] See Kevin T. McGuire, Are the Justices Serving Too Long – An Assessment of Tenure on the U.S. Supreme Court, 89 Judicature 8, 15 (2005).

[16] Russell Berman, No Other Western Democracy Allows This, Atlantic, (Sept. 25, 2020), https://www.theatlantic.com/politics/archive/2020/09/supreme-court-retirement-age/616458/.

Gage Hodgen, CLS ’22

The opportunity for the criminally accused to contest his or her guilt is fundamental to the criminal justice system.  Despite the centrality of the constitutional right to a trial at which the government must prove criminal charges beyond a reasonable doubt, however, the federal Sentencing Guidelines effectively punish defendants who avail themselves of their right to trial and contest the factual elements of their guilt.[1]  This incentive to admit guilt in order to obtain a more lenient sentence may be troubling in the typical case for punishing defendants who do not submit meekly to government prosecution.  In the context of defendants who contest their guilt by asserting an entrapment defense, however, the concept of acceptance of responsibility itself is particularly elusive, as demonstrated by the Third Circuit’s recent opinion in United States v. Jackson, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020), which raises serious questions about how courts should treat such a defense when determining moral culpability of the sort considered in the Sentencing Guidelines § 3E1.1(A).

The facts of Jackson, like the facts of many cases in which a defendant raises an entrapment defense,[2] do not inspire a great deal of sympathy for the accused.  Jackson was arrested for selling several ounces of methamphetamine to a confidential informant for the police in York County, Pennsylvania.[3]  The evidence showed that Jackson did not take a great deal of convincing to sell the drugs to the police informant,[4] which led the Third Circuit on review to conclude that Jackson had not satisfied his burden of showing that the government induced him to commit the crime.[5]

The more conceptually troubling aspect of Jackson is the Third Circuit’s conclusion that “[o]rdinarily a claim of entrapment seems to be the antithesis of the acceptance of responsibility”[6] and therefore that a defendant who raises an entrapment defense should be precluded from receiving a reduction of the offense level of his or her crime under § 3E1.1(A) of the Sentencing Guidelines even if he or she professes to accept responsibility for it.  The Third Circuit’s parsing of the entrapment defense as the defendant rejecting personal moral responsibility is in some tension with the nature of an entrapment defense and is not the only rational way to frame the defense.

As an affirmative defense, the entrapment defense requires that the defendant admit to committing the crime alleged (i.e., take responsibility for his or her actions) and plead a justification of sorts that the government wholly induced the otherwise law-abiding defendant to commit the crime.  A defendant could reasonably argue that the entrapment defense is at its core an admission by the defendant that the crime he or she committed was wrong coupled with a claim that the defendant committed the crime due to extraordinary pressure from the government and against his or her better judgment.  The Jackson Court’s conclusory treatment of the entrapment defense as necessarily a rejection of personal responsibility that precludes an offense level reduction under § 3E1.1(A) misses this key point; a court could just as reasonably understand the entrapment defense as the acceptance of responsibility for the crime joined with an appeal to compassion based on the extreme government temptation that induced the defendant to commit the crime.

Defendants already face an uphill battle when arguing entrapment. The vast majority of entrapment defenses fail either because of the high standard for what constitutes government inducement[7] or the low factual burden to justify a jury finding that a defendant was predisposed to commit the crime at issue.[8]  By stating that in most cases a defendant who even asserts an entrapment defense should receive a lengthier sentence under the Sentencing Guidelines because of a failure to accept moral responsibility, the Third Circuit in Jackson even further disincentivizes defendants from raising an entrapment defense and undercuts defendants’ ability to fully defend themselves without fear of retribution from the courts.

[1] U.S. Sent’g Guidelines Manual § 3E1.1(A) (U.S. Sent’g Comm’n 2018) provides that the offense level of a crime will be decreased by two “if the defendant clearly demonstrates acceptance of responsibility for his offense.”  The Guidelines explain that this adjustment is “not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”  Id. at n.2.

[2] Even when entrapment defenses are successful, the facts of the defendants’ crimes are often off-putting because such defenses arise from police sting operations targeting drug crimes, terrorism, or sex crimes.  See, e.g., Jacobson v. United States, 503 U.S. 540 (1992) (finding entrapment of a defendant who ordered child pornography because of a police sting operation).

[3] United States v. Jackson, 2018 WL 4469694, at *1–3 (M.D. Penn. Sept. 18, 2018), aff’d, 2020 WL 5681690 (3rd Cir. Sept. 24, 2020).

[4] Id.

[5] Jackson, 2020 WL 5681690 at *2.  A successful entrapment defense requires that a defendant prove two elements:  government inducement of the crime and lack of predisposition on the part of the defendant to engage in the criminal conduct.  Id.

[6] Id.

[7] See, e.g., United States v. Dennis, 826 F.3d 683, 690 (3rd Cir. 2016) (“A mere solicitation or request by the government to participate in a criminal activity, without more, is not inducement.  Likewise, merely opening an opportunity for a crime is insufficient. Rather, the defendant must show that law enforcement engaged in conduct that takes the form of persuasion, fraudulent representation, threats, coercive tactics, harassment, promises of reward or pleas based on need, sympathy or friendship.”) (internal quotations marks and citations omitted).

[8] See, e.g., United States v. Bolatete, 2020 WL 5784153, at *10–11 (11th Cir. Sept. 29, 2020) (finding that a jury’s finding of predisposition to buying an unregistered silencer was reasonably supported by the evidence despite the defendant’s expressed disinterest in purchasing such a silencer and the police officer’s conclusion that the defendant had “no desire to own a silencer.”)

Lauren Stewart, CLS ’22

During the Coronavirus pandemic, states wielded unprecedented emergency powers. As a result, courts served as arbiters when state power clashed with individual rights across the country. One of the most convoluted court battles was waged in Texas. In one month, the legal status of abortion in Texas changed nine times.[1]

On March 22, 2020, Governor Abbott issued executive order GA-09 postponing non-essential surgeries and procedures until April 21.[2] The next day the Texas attorney general published a press release interpreting GA-09 which explicitly stated abortion providers must stop all non-emergency abortions for that period.[3] The Texas Medical Board immediately passed a corresponding Emergency Rule.[4] Purportedly to conserve Personal Protective Equipment (PPE) and preserve hospital capacity during the crisis, .[5] For some who would be past the gestational threshold for legal termination by April 21, abortion would be wholly inaccessible.

Several abortion facilities immediately filed for a Temporary Restraining Order (TRO).[6] The district court ruled that while GA-09 was within the governor’s authority, the press release and Emergency Rule was an abortion ban that violated Supreme Court precedent.[7] The court concluded that the ban’s limited potential reduction of PPE was outweighed by the harm imposed on the right to a pre-viability abortion. On the balance, eliminating this time-sensitive medical procedure did not serve the public interest.[8]

The State appealed and the Fifth Circuit employed the writ of mandamus— a “drastic and extraordinary remed[y]”[9]— to vacate the TRO. The Fifth Circuit substituted the rights-specific test and standard of review developed by Roe v. Wade[10] and its progeny and instead applied their interpretation of the 115-year-old case Jacobson v. Massachusetts.[11] In the Fifth Circuit’s view, Jacobson, a case concerning a $5 fine for a man who refused to get vaccinated, dictated a mandatory universal standard of deferential, rational basis-like review during a public health crisis.[12]

The sole dissenter emphatically criticized the majority in both substance and procedure. The dissent argued that Jacobson is not only clearly distinguishable but also Jacobson clearly states in emergency situations that courts should invalidate laws that “went beyond the necessity of the case and, under the guise of exerting a police power… violated rights secured by the Constitution.”[13] Additionally the dissent criticized the majority’s reliance on the writ when the lower court rightly applied 50 years of Supreme Court abortion precedent.[14]

In a second TRO, the district court applied both Jacobson and Planned Parenthood v. Casey,[15] and allowed resumption of medication abortions and procedural abortions for patients who would be legally barred from having an abortion after April 21.[16] The two-one Fifth Circuit panel once again employed the writ of mandamus and reinstated the abortion ban.[17]

On April 22, a new state order, confirmed in the State’s court filing, officially allowed abortion providers to resume services.[18]

What remains unclear is the role of the Fifth Circuit when a state’s emergency powers clashes with individual liberty. Justice Jackson’s warning in his Korematsu v. United States dissent remains a relevant caution: “[excessive state power] lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”[19]

[1] In re Abbott II, 956 F.3d 696, 740 (5th Cir. 2020) (Dennis, J., dissenting in part) (explaining that decision would be the seventh time abortion’s status had changed during the pandemic); In re Abbott III, 809 F. App’x 200 (5th Cir. 2020) (holding medication abortion could resume); State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. * 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020) (conceding under the new state order announced the day before that abortion procedures could resume).

[2] In re Abbott I, 954 F.3d 772, 777 (5th Cir. 2020).

[3] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d 753, 756-57 (W.D. Tex. 2020), vacated, No. A-20-CV-323-LY, 2020 WL 1808897 (W.D. Tex. Apr. 8, 2020).

[4] In re Abbott I, 954 F.3d at 780.

[5] Id. at 790-91 (explaining the time limit for legal abortion in Texas is twenty-two weeks after the last menstrual period).

[6] Planned Parenthood Ctr. for Choice v. Abbott I, 450 F. Supp. 3d at 756-57.

[7] In re Abbott I, 954 F.3d at 758.

[8] Id. at 758-59.

[9] In re Abbott II, 956 F.3d at 724 (Dennis, J., dissenting in part) (quoting Ex Parte Fahey, 332 U.S. 258, 259 (1947)).

[10] 410 U.S. 113 (1973).

[11] 197 U.S. 11 (1905).

[12] In re Abbott I, 954 F.3d at 784.

[13] Id. at 800-02 (Dennis, J., dissenting) (quoting Jacobson v. Mass., 197 U.S. 11, 29).

[14] In re Abbott I, 954 F.3d at 804 (Dennis, J., dissenting).

[15] 505 U.S. 833 (1992).

[16] Planned Parenthood Ctr. for Choice v. Abbott II, No. A-20-CV-323-LY, 2020 WL 1815587, at *6-7 (W.D. Tex. April 9, 2020).

[17] In re Abbott II, 956 F.3d 696 (5th Cir. 2020).

[18] State Defs. Supp. Resp. to Pls.’ Mot. for Prelim. Inj. at 4, Planned Parenthood Ctr. for Choice v. Abbott, No. 20-cv-00323 (W.D. Tex. Apr. 22, 2020).

[19] 323 U.S. 214, 246 (1944).

Morrease Leftwich, CLS ’22

Abdullah Muhammad filed a Habeas Corpus petition in the U.S. District Court for the Eastern District of Pennsylvania this summer.[1] He is seeking relief from a sentence imposed by the Court of Common Pleas of Philadelphia County and upheld by the Superior Court of Pennsylvania. In his state appeal and in his Habeas Corpus petition, he makes a number of arguments which point to alleged improper behavior on behalf of the trial court. However, it is my opinion that his most meritorious argument has to do with a parole restriction the trial court imposed, which seems to be unauthorized under the text of the court’s supporting statute.

In 2014, the Court of Common Pleas of Philadelphia County convicted Muhammad of first degree murder. In the court’s opinion, the trial judge held that Muhammad was sentenced in accordance with 18 Pa.C.S. § 1102. [2] §1102 governs first degree murder sentencing; it allows the jury in such cases to decide between life imprisonment and death. [3] In the case of Muhammad, the government did not seek death. Considering the plain text of § 1102, it is reasonable to believe Muhammad’s sentence would be life imprisonment: “shall be sentenced to death or to a term of life imprisonment…” Instead, the court held, “where the Commonwealth did not seek the death penalty, life imprisonment without the possibility of parole was a mandatory sentence.”[4]

On review, the Superior Court of Pennsylvania upheld the parole restriction, framing it as an issue regarding 42 Pa.C.S. § 9756, [5] which requires that trial courts attach a minimum sentence to any sentence of total confinement. [6] This minimum sentence serves as a mandatory term of confinement, during which an inmate is not eligible for parole.[7] To justify an exemption from this rule, the Superior Court quoted the Pennsylvania Supreme Court’s decision in Hudson v. Pa. Board of Probation and Parole, which held that “the sole statutory directive for courts in imposing a minimum term of total confinement does not apply to mandatory life sentences.”[8] In Hudson, the Pennsylvania Supreme Court was adjudicating another challenge to a parole restriction.[9] To justify that trial court’s seemingly unauthorized parole restriction, [10] the Pennsylvania Supreme Court pointed to § 9756(c).[11] However, the problem is that the version the Court cited to is twenty-one years old.[12] The current version of § 9756(c) reads:

The court may impose a sentence to imprisonment without the right to parole under this subsection only when:(1) a summary offense is charged; (2) sentence is imposed for nonpayment of fines or costs, or both, in which case the sentence shall specify the number of days to be served; and (3) the maximum term or terms of imprisonment imposed on one or more indictments to run consecutively or concurrently total less than 30 days.[13]

In the Pennsylvania Supreme Court opinion, however, § 9756(c) begins, “[e]xcept in the case of murder of the first degree, the court may impose…”[14] Assuming the Court wouldn’t purposely misquote the statute, I reviewed older versions and found that such language which the Court imputed to § 9756(c) was last found in the 1999 version of the statute.[15] Given my understanding of the gravity of a life without parole sentence, this error is troubling to say the least.

That said, I do not believe that the change to § 9756 shows the legislature’s intent to make inmates like Muhammad parole eligible. Instead, I believe it only goes to show that the courts have no right to impose a parole restriction. Thus, I agree with the Pennsylvania Supreme Court’s reliance on the other statute it cited: 61 Pa.C.S. § 6137.[16] That statute is directed to the Parole Board and it denies the Board the right to parole inmates serving life sentences.[17] In the Pennsylvania Supreme Court’s opinion in Hudson, § 6137 was properly applied – the defendant brought a challenge to the Parole Board’s denial of the defendant’s parole application, instead of a challenge to a sentence.[18]

However, in the Superior Court’s opinion in Muhammad’s case, reliance on § 6137 and Hudson was misplaced. The fact that the legislature intends for the Parole Board to deny parole to Muhammad does not authorize the courts to preempt the parole board from doing just that. The Commonwealth of Pennsylvania is no different from the United States in that its governmental underpinning is the separation of powers. Accordingly, the Pennsylvania courts should clean up its jurisprudence on parole restrictions under 18 Pa.C.S. § 1102 sentencing. In this day-in-age, where criminal justice reform has already gained tank-like traction, it is reasonable to suspect that the Pennsylvania legislature may amend its statutory scheme to allow for the parole of reformed inmates serving life sentences, specifically by amendment of 61 Pa.C.S. § 6137.

My concern is that if the courts persist in upholding statutorily unauthorized life without parole sentences, those sentences will shield inmates like Muhammad from the lawful effects of such progressive statutory amendments.[19] The Pennsylvania courts clearly believe they are executing the legislative plan. However, by doing so, they will prevent future legislation from having its intended effect, thus standing in the way of legislative choice. Staying silent, except to execute the text of the statutes, would be a more effective way to implement the legislative plan. In the case of Muhammad’s Habeas Corpus petition, the U.S. District Court should make clear to the Pennsylvania courts that it recognizes its error and is willing to correct it in lieu of their own motivation to do so.

[1] Petition for Habeas Corpus, Muhammad v. Ransom, No. 20-4313 (E.D. Pa. Aug. 31, 2020)

[2] Commonwealth v. Muhammad, No. CP-51-Cr-0005853-2012, at *12 (Phila. C.P. Dec. 23, 2014) (written opinion filed Oct. 5, 2018).

[3] 18 Pa.C.S. § 1102(a)(1) (2020) (“[A] person who has been convicted of a murder of the first degree or of murder of a law enforcement officer of the first degree shall be sentenced to death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the first degree).”); 42 Pa.C.S. § 9711(a)(1) (2020) (“[T]he jury shall determine whether the defendant shall be sentenced to death or life imprisonment.”).

[4] Muhammad, No. CP-51-Cr-0005853-2012, at *12

[5] Commonwealth v. Muhammad, No. CP-51-Cr-0005853-2012, 2019 Pa. Super. LEXIS 4663, at *11 (Pa. Super. Ct. Dec. 19, 2019).

[6] 42 Pa.C.S. § 9756(b)(1) (2020).

[7] Id. at § 9756(b)(2).

[8] Muhammad, 2019 Pa. Super. LEXIS 4663, at *11 (quoting Hudson v. Pennsylvania Board of Probation and Parole, 204 A.3d 392, 398 (Pa. 2019))

[9] Id. at 394-96 This case actually involved an inmate’s challenge to the Pennsylvania Parole Board’s denial of his application for parole. It can further be differentiated by the fact that the defendant was serving a life sentence for a second-degree murder conviction.

[10] Id. at 394-95 (The ‘parole restriction’ imposed was really just a failure on behalf of the trial court to impose a minimum sentence in accordance with 42 Pa.C.S. § 9756(b)(1)).

[11] Hudson, 204 A.3d at 398.

[12]  Compare 42 Pa. Cons. Stat. § 9756 (2000) with 42 Pa. Cons. Stat. § 9756 (1999).

[13] 42 Pa.C.S. § 9756(c) (2020), https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/42/00.097.056.000..HTM [https://perma.cc/HF9G-ZYB5].

[14] Hudson, 204 A.3d at 398.

[15] Compare 42 Pa. Cons. Stat. § 9756 (2000) with 42 Pa. Cons. Stat. § 9756 (1999).

[16] Hudson, 204 A.3d at 398.

[17] See 61 Pa.C.S. § 6137(a)(1) (2020) (“The board. . . may release on parole any inmate. . . except an inmate condemned to death or serving life imprisonment. . .”).

[18] Hudson, 204 A.3d, at 394.

[19] As Hudson shows, such a change in the legislative plan would still face the obstacle posed by the fact that the Pennsylvania courts almost never impose minimum sentences on defendants sentenced to life imprisonment. See, e.g., Commonwealth v. Manning, 495 Pa. 652 (Pa. 1981); Commonwealth v. Yount, 419 Pa. Super. 613 (Pa. Super. Ct. 1992). However, it would be easier for the legislature to impose a general minimum sentence by statute for those defendants than it would be to correct individual cases of judicial overreach on behalf of a few overzealous trial courts.

Sam Ackerman, CLS ’22

Unlike most federal agencies, the Federal Elections Commission (FEC) is uniquely led by an equal number of Democrat and Republican commissioners.[1] Because issues related to election integrity impact all Americans, the Federal Election Campaign Act (FECA)—the FEC’s governing statute—provides for the right of private parties to file complaints and appeal non-enforcement decisions to the U.S. District Court for the District of Columbia.[2] If the District Court finds the FEC’s dismissal of a complaint to be “contrary to law,” the FEC must either enforce the matter, or the complainants may bring a civil action against the accused party themselves.[3] However, following the March 2019 D.D.C. decision in CREW v. FEC (New Models), the citizen-led review mechanism and FECA’s distinctive statutory structure may be cast asunder.

In 2014, Citizens for Responsibility and Ethics in Washington (CREW), an election ethics watchdog, filed a complaint with the FEC against a conservative organization called New Models for failing to disclose its donors.[4] FECA (and subsequent case law interpreting FECA) requires any organization that makes more than $1,000 in expenditures towards influencing elections and for whom influencing elections is a “major purpose” to register as a political committee subject to donor disclosure regulations.[5] In 2012, New Models spent $3 million, or 68%, of its total spending on Political Action Committees (PACs), and thus, CREW argued that New Models itself is a “political committee” under FECA.[6] In its complaint, CREW asserted that $3 million in spending is far beyond the $1,000 statutory threshold for expenditures.[7] CREW then asserted that New Models had a “major purpose” of electing candidates because far more than a simple majority (68%) of its spending went towards PACs.[8]

Nonetheless, the FEC—in a 2-2 party-line split—dismissed the complaint against New Models.[9] The GOP commissioners claimed that New Models’ $3 million in spending was merely contributions and not expenditures[10], and thus, the spending does not qualify towards FECA’s $1,000 expenditure requirement.[11] Further, the commissioners looked at New Model’s spending over a number of years—which then averaged out to less than 50% of spending—to determine that New Models lacked a “major purpose” in electing candidates.[12] CREW filed a complaint to the D.D.C., as case law seemed to invariably point to the fact that both of the FEC’s interpretations of FECA’s requirements had been uniformly rejected by the courts.[13]

Upon CREW’s 2018 appeal to the D.D.C., however, the District Court did not get a chance to address the substantive claims that most likely would have favored the complainants. Rather, the court claimed that “because the Controlling Commissioners invoked prosecutorial discretion, the Court is also foreclosed from evaluating the Controlling Commissioners’ otherwise reviewable interpretations of statutory text and case law.”[14] As it turned out, the 32-page dismissal memo that engaged in deep and likely flawed interpretations of FECA, passively used the phrase “prosecutorial discretion” in a single sentence in the memo’s conclusion.[15]

Although the case is currently on appeal to the D.C. Circuit, the ruling as it stands has the potential to eviscerate FECA’s deliberately bipartisan enforcement structure that allows citizens to challenge non-enforcement decisions. The D.D.C.’s creation of a magic words-like test will certainly ensure that the term “prosecutorial discretion” is inserted in any politically salient non-enforcement memo. Such a change in the FEC appeals process flies in the face of Congress’ goals in enacting FECA: to ensure partisanship does not infect the enforcement of integrity in elections.

The decision could also have consequences that pervade the post-Citizens United campaign finance system generally. Citizens United allowed for a flurry of uncoordinated, independent expenditures made by individuals, corporations, and non-profits alike.[16] However, Citizens United was also predicated on the notion that corruption in independent expenditures is not a compelling state concern, so long as there is a rigorous system of donor disclosure.[17] If a partisan group of commissioners can effectively block action against political allies without a shred of legal justification, then there is reason to doubt that the disclosure system will continue to act as a partial (albeit inadequate) check on unlimited outside expenditures and the appearance of corruption unlimited expenditures may evoke. With no hearing in sight at the D.C. Circuit, CREW v. FEC (New Models) will certainly curtail FEC enforcement as the country enters into the final stages of what will likely be the most expensive presidential election in American history.

[1] 52 U.S.C. § 30106(a)(1).

[2] 52 U.S.C. § 30109(a)(8)(A).

[3] 52 U.S.C. § 30109(a)(8)(C).

[4] Complaint, CREW v. FEC (New Models), No.1:18-cv-00076 (D.D.C. filed Jan. 12, 2018).

[5] 52 U.S.C. § 30101(4)(A); 52 U.S.C. § 30104(b)(2)–(8); Buckley v. Valeo, 424 U.S. 1, 79 (1976) (requiring the influencing of election outcomes to be a “major purpose” under FECA).

[6] Id. at 1-2.

[7] Id. at 2.

[8] Id. at 9.

[9] See, Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.

[10] FECA defines “contributions” in part as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(8)(A)(i). FECA defines “expenditure” to be inclusive of many forms of contributions and is similarly defined in part as “any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. § 30101(9)(A)(i).

[11] Id. at 18.

[12] Id. at 20.

[13] See, CREW v. FEC, 209 F. Supp. 3d 77, 94 (D.D.C. 2016) (“CREW/AAN”) (explaining that a multi-year approach to the major purposes test is impermissible); Shays v. FEC, 511 F. Supp. 2d 26-27 (D.D.C. 2007) (suggesting that once a major purpose is established, the term “expenditure” is to be broadly construed to encompass all spending to influence the outcome of an election).

[14] CREW v. FEC (New Models) at 22-23, No. 1:18-cv-00076-RC, (D.D.C. 2019).

[15] Statement of Reasons of Vice Chair Caroline C. Hunter and Comm’r Lee E. Goodman at 31, MUR No. 6872 (Dec. 20, 2017), https://eqs.fec.gov/eqsdocsMUR/17044435569.pdf.

[16] Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, Open Secrets (Jan. 14, 2020), https://www.opensecrets.org/news/reports/a-decade-under-citizens-united.

[17] Citizens United v. FEC, 558 U.S. 310, 370-71 (2010).