Common Law Blog Archive

Zachary Dulabon, CLS ’23

In the past few years authorities have begun to take an increasingly hard look at labor market restrictions and the potential application of antitrust scrutiny.^[1] Recent scholarship has used the National Residency Matching Program  (NRMP) as an example of how sharing of salary information among employers may be used as a facilitating practice to fix wages in labor markets, such that this practice in other labor markets is particularly ripe for antitrust scrutiny.^[2]  It is high time that the statutory exemption from antitrust scrutiny that the NRPM enjoys be reconsidered, as medical residents should have a meaningful say in the compensation, hours, and conditions associated with their employment.  Allowing for antitrust challenges to the system could lead to reforms, with courts considering less restrictive alternatives to the proffered procompetitive justifications for the NRMP.^[3]

Residency refers to the period of three to seven years following graduation from medical school that prospective physicians spend working and training before they can become a licensed physician.^[4]  On the third Friday of every March, applicants to residency programs are notified of the residency program to which they are matched.  This annual process is the culmination of months of stress for applicants, as the opaque process leaves them in the dark about where and in what practice area they will be working for the next several years.^[5]  According to the 2021 Report from the Association of American Medical Colleges (AAMC), the average salary for first year residents was $59,279 in 2021 with relatively little variation across both specialty and geographical location.^[6]  When adjusted for inflation, there has been a small decrease in the real wage for residents since 1972, and when taking into account that residents routinely work more than eighty hours per week, the hourly wage may be below the relevant jurisdiction’s minimum.^[7]

The small spread in compensation is facilitated by information sharing among the programs and the restraints on individual negotiation imposed by the NRMP.^[8]  Participation in the NRMP is near compulsory.  Completion of a residency program accredited by the Accreditation Council for Graduate Medical Education (ACGME) is required to become a licensed physician, and nearly all spots in ACGME accredited programs are filled through the NRMP.^[9]  The NRMP uses a computer algorithm to match applicants and programs based upon the rank order lists of preferred programs and preferred applicants.^[10]  Applicants are prohibited from agreeing on any employment terms prior to the match and from discussing with other applicants how they plan to rank programs.  Critically, both applicants and programs are contractually bound to adhere to whatever match the algorithm produces.  These restraints effectively bar applicants from engaging in negotiations over the terms of employment with the program with which they are matched.^[11]

The horizontal nature of these restraints raise obvious antitrust questions, and, in 2002, a class-action suit was brought against the AAMC, NRMP, the ACGME, and participating residency programs on behalf of all individuals who had been employed in accredited residency programs.^[12]  The plaintiffs in Jung v. Association of American Medical Colleges asserted that the defendants had violated Section 1 of the Sherman Act through horizontal agreements to impose anti-competitive restraints on medical residency placement and hiring through the NPRM; amounting to a de facto prohibition on the ability of residents to engage in individual negotiations.^[13]  The plaintiffs alleged that these practices, along with information sharing, had resulted in the fixing of wages at a level below the competitive equilibrium.^[14]  In a February 2004 order addressing the Defendant’s motion to dismiss, the Court allowed the suit to proceed against several of the defendants and gave nodding approval to the plaintiff’s theories regarding the alleged agreement and the nature of the antitrust violation.  Before the suit could proceed further, Congress sprang into action by exempting the NRMP from antitrust law in the Pension Funding Equity Act of 2004.^[15] The statutory exemption led to the subsequent dismissal of the suit by the district court and denials of the plaintiff’s attempts to appeal the decision.^[16]  There have been no subsequent antitrust challenges alleging horizontal price fixing by residency programs.  This is because it would be nearly impossible for plaintiffs to prove an agreement without using participation in the NRMP as evidence.^[17]  The exploitation of residents during the COVID-19 pandemic in conjunction with unionization may be the impetus needed to either get residency programs to voluntarily allow for meaningful negotiation or for Congress to reconsider the antitrust exemption of the NRMP.^[18]

^[1] See Department of Justice Antitrust Division and Federal Trade Commission to Hold Workshop on Promoting Competition in Labor Markets, Dep’t of Just. (Oct. 27, 2021) https://www.justice.gov/opa/pr/department-justice-antitrust-division-and-federal-trade-commission-hold-workshop-promoting; DOJ Criminally Prosecutes First No-Poach Agreement on Heels of First Criminal Wage Fixing Indictment, Cooley (Jan. 12, 2021) https://www.cooley.com/news/insight/2021/2021-01-12-doj-criminally-prosecutes-first-no-poach-agreement.

^[2] See Richard A. Bales & Katherine V.W. Stone, The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace, 41 Berkeley J. Emp. & Lab. L. 1, 38–39 (2020); Suresh Naidu et. al., Antitrust Remedies for Labor Market Power, 132 Harv. L. Rev. 536, 599–600 (2018).

^[3]  Melissa Mayeux, A Match Made in Antitrust Heaven? A Liberalistic Exploration of the Medical Match’s Antitrust Exemption, 13 Wash U. Jur. Rev. 121, 143–44 (2020).

^[4] Mayeux, supra note 3, at 121.

^[5] Id. at 126.

^[6] Ass’n Am. Med. Colls., Survey of Resident/Fellow Stipends and Benefits Report (2021),  https://www.aamc.org/media/9606/download. While wages have remained stagnant the average debt of medical school graduates is now over $200,000.  Furthermore, the COVID-19 pandemic further highlighted the significant demands placed upon residents in terms of both the type of care they provide and the hours they work. Clifford M. Marks, Make Residency—and Health Care—More Equitable by Scrapping the Match, Stat (Mar. 18, 2021), https://www.statnews.com/2021/03/18/make-residency-more-equitable-scrap-the-match/.

^[7] Mayeux, supra note 3, at 129.

^[8] See George L. Priest, Timing “Disturbances” in Labor Market Contracting: Roth’s Findings and the Effects of Labor Market Monopsony, 28 J. Lab. Econ. 447, 450–51 (2010).

^[9] The Match: Explaining the Application Process and Your Residency Results, St. Geo. U. (Mar. 17, 2021), https://www.sgu.edu/blog/medical/explaining-the-match-for-residency/.

^[10] Alvin E. Roth, The Origins, History, and Design of the Resident Match, 289 JAMA 909, 911 (2003).

^[11] Kristin Madison, The Residency Match: Competitive Restraints in an Imperfect World, 42 Hous. L. Rev. 759, 775–76 (2005).

^[12] Jung v. Ass’n of Am. Med. Colls., 300 F. Supp. 2d 119, 125 (D.D.C. 2004).

^[13] Id. at 125–27.

^[14] Id. at 166–69.

^[15]  A provision of the act, entitled “Confirmation of Antitrust Status of Graduate Medical Resident Matching programs states that “It shall not be unlawful under the antitrust laws to sponsor, conduct, or participate in a graduate medical education residency matching program… Evidence of any of the conduct described in the preceding sentence shall not be admissible in federal court to support any claim or action alleging a violation of the antitrust laws.” 15 U.S.C. § 37b(b)(2).

^[16] Jung v. Ass’n of Am. Med. Colleges, 339 F. Supp. 2d 26 (D.D.C. 2004); Jung v. Ass’n of Am. Med. Colls.,184 F. App’x 9 (D.C. Cir. 2006), cert. denied, 127 S. Ct. 1041 (2007).

^[17] Mayeux, supra note 3, at 145.

^[18] See Marks, supra note 6 (arguing that due to the significant debt burden and the increase in exploitation of residents by hospitals during COVD-19, the NRMP should be disbanded or subject to challenge).

Logan Wilke, CLS ’23

Martin Shkreli, aka the “Pharma Bro,” gained notoriety in 2015 for purchasing a drug that treats toxoplasmosis, a parasitic infection primarily affecting those with HIV/AIDS, and raising its price by 5,000%.[1]  Although Shkreli had originally defended this price increase as “not excessive at all,”[2] the Federal Trade Commission and a group of seven States Attorneys’ offices pursued a lawsuit against him and his company, Vyera Pharmaceuticals, alleging that the hike was only possible due to “an elaborate, multi-part scheme to block generic entry” in violation of both federal and state antitrust laws.[3]

Although Vyera settled ahead of trial, [4] a federal court recently found Shkreli individually liable under federal and state law for monopolizing the market for the drug and blocking generic entry.[5]  Following a bench trial in federal court in December 2021, the court ordered Shkreli barred for life from participating in the pharmaceutical industry and to disgorge $64.6 million in net profits.[6]

While this result certainly offers some comfort in knowing that Shkreli’s notoriously brazen scheme did not go unpunished, an earlier ruling against Vyera has implications for antitrust enforcement beyond the case at hand.  Earlier last year, the Supreme Court held that the FTC does not have the authority to obtain equitable monetary relief as a remedy in federal court.[7]  As a result, the FTC could no longer seek disgorgement, a form of such relief, of Vyera’s allegedly ill-gotten profits in the case at hand.[8]  Still, State plaintiffs maintained their claims for disgorgement under the Sherman Act, Clayton Act, and their respective state laws.[9]  While the court did not rule on every state’s authority to seek disgorgement, the court did hold that in New York, where Vyera conducted its scheme, state law grants such authority to the New York Attorney General, one of the plaintiffs.[10]

An open question remained, however, as to the scope of such relief.  Vyera moved for partial summary judgment on the issue, arguing that State plaintiffs may only pursue disgorgement where the defendants’ net profits are tied to sales that have victimized citizens of their States.[11]  The court denied the motion, finding that New York Executive Law § 63(12) permits the Attorney General to seek relief on behalf of out-of-state residents injured by the wrongdoing stemming from a company’s New York-based operations.[12]  As the Attorney General can use this authority to enforce its state antitrust law, the finding allowed the court to hold Shkreli personally liable to disgorge the $64.6 million of excess profits gained from the scheme.[13]

As the FTC remains unable to seek disgorgement in the courts, this ruling paves the way for the New York Attorney General and other State enforcers with similar state-law statutory authority to fill the void and pursue nationwide disgorgement as New York did here.[14]  Although disgorgement had not been used widely until the past decade, it has become an increasingly important tool for antitrust enforcers to deter future violations where injunctive relief alone would not suffice.[15]

[1] Cecilia Kang, Martin Shkreli Faces New Accusations Over High-Priced Drug, New York Times (Dec. 21, 2020), https://www.nytimes.com/2020/01/27/business/martin-shkreli-ftc-lawsuit.html.

[2] CBS News, CEO: 5,000-percent Drug Price Hike “Not Excessive at All,” CBS News (Sep. 22, 2015), https://www.cbsnews.com/news/turing-pharmaceuticals-ceo-martin-shkreli-defends-5000-percent-price-hike-on-daraprim-drug/.

[3] See Complaint, Fed. Trade Comm’n v. Vyera Pharms., LLC, No. 20CV00706, 2021 WL 4392481 at 2 (S.D.N.Y. Jan. 27, 2020) (ECF 1).

[4] See Luc Cohen and Brenan Pierson, U.S. FTC Focuses on Deal with Japanese Company in Shkreli Trial, Reuters (Dec. 14, 2021), https://www.reuters.com/world/us/us-ftc-states-take-shkreli-trial-over-price-hike-2021-12-14/.

[5] See Opinion and Order, Fed. Trade Comm’n v. Vyera Pharms., LLC, No. 20CV00706 at 6 (S.D.N.Y. Jan. 14, 2022).

[6] Id. at 6-7.

[7] See AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 1341 (2021). The Court interpretated Section 13(b) of the FTC Act to authorize the Commission to seek equitable monetary relief through administrative proceedings but not in federal court.

[8] See Opinion and Order Denying 459 Motion for Partial Summary Judgment at 9, Fed. Trade Comm’n v. Vyera Pharms., LLC, No. 20CV00706, 2021 WL 4392481 (S.D.N.Y. Sept. 24, 2020) (ECF 482).

[9] See id. at 10.

[10] See id. at 11.

[11] See id. at 4.

[12] See id. at 11.

[13] See Opinion and Order, supra note 5 at 129 (New York Executive Law § 63(12) authorizes the Attorney General to seek actions in equity, including for monetary relief, “to disgorge unlawfully gained profits wherever they were derived.”  The Attorney General can use this authority to enforce the Donnelly Act, the State’s antitrust statute.).

[14] See Consumer Protection and Recovery Act, H.R. 2668, 117th Cong. (2021); Although the House passed stand-alone legislation in July to amend the FTC Act to expressly authorize the Commission to seek equitable monetary relief, the bill passed largely along party lines and has not moved in the Senate.

[15] See Fed. Trade Comm’n, Withdrawal of the Commission’s Policy Statement on Monetary Equitable Remedies in Competition Cases, at 2 (July 31, 2012), https://www.ftc.gov/publicstatements/2012/07/statement-commission-regarding-withdrawal-commissions-policy-statement.

Suzy Park, CLS ’22

Since the beginning of the coronavirus disease (COVID-19) pandemic in early 2020, the United States has experienced an uptick in anti-Asian violence.[1]  On January 28, 2021 in San Francisco, an 84-year-old Thai man, who was taking a morning walk, was shoved to the ground and ultimately died from the injuries.[2]  A few days later, in New York City, a 61-year-old Filipino man was slashed in the face while riding the subway.[3]  According to the Center for the Study of Hate and Extremism at California State University, San Bernardino, last year, while the rate of hate crimes decreased overall, hate crimes targeting Asians rose by almost 150 percent.[4]  Further, between March 19, 2020 and February 28, 2021, Stop Asian American Pacific Islander (AAPI) Hate found 3,795 self-reported hate incidents targeting Asians.[5]

It is against this backdrop that the Atlanta-area spa shootings — in which Robert Aaron Long, a 21-year-old White man, fatally shot eight people, including six women of Asian descent — occurred.  Following the attacks, the local police’s seeming hesitancy in labeling the massacre a “hate crime” fueled outrage and disappointment in the Asian American community.[6]  Accordingly, there have been renewed calls for federal and state hate crime legislations.  Soon after the attacks garnered national attention, President Joe Biden urged Congress to pass the COVID-19 Hate Crimes Act, which would “designate an official at the Department of Justice to review COVID-19 related hate crimes reported to law enforcement, establish an online database of these incidents, and expand public education campaigns to mitigate racially incendiary language around the pandemic.”[7]  In South Carolina, Arkansas, and Wyoming, the only three U.S. states that do not have hate crimes laws or require data collection on hate crimes,[8] legislations that criminalize acts motivated by the victim’s group identity are gaining momentum.[9]

However, many remain skeptical that a growth in hate crime legislations will lead to an end in anti-Asian violence.[10]  Generally, for hate crimes, “a prosecutor has to prove to a jury beyond a reasonable doubt not only that the defendant committed a murder or a crime . . . but also that the defendant committed the crime for a very specific reason.”[11]  Unless “a perpetrator shouts a racist epithet or uses a racist symbol against a victim,” their motive is difficult to establish and thus, prosecutors shy away from charging hate crimes.[12]  A study from the Transactional Records Access Clearinghouse at Syracuse University revealed that while “state attorneys submitted more than 2,000 hate crimes to the federal government for prosecution over the last decade . . .[,] only 15% led to court cases.”[13]  In Texas, out of 981 hate crime cases reported to law enforcement between 2010 and 2015, only five resulted in convictions.[14]

Despite these challenges, there are reasons to pass legislation and pursue prosecution against anti-Asian violence.  Some view that notwithstanding the limited prosecutions and convictions, hate crime legislations are important because they “tell victims of hate crimes that ‘you matter and we’ll take it seriously if somebody hurts you.’”[15]  Others argue that a prosecutor’s failure to prove at trial that the defendant was motivated by racial animus will likely have little impact on whether the defendant is convicted of other crimes, and urge prosecutors to charge anti-Asian violence as a hate crime.[16]  “[H]aving hate crime laws on the books and not using them undermines confidence in the criminal justice system . . . because it sends the message that hate crimes do not really matter.”[17]

[1] Sam Cabral, Covid ‘Hate Crimes’ Against Asian Americans on Rise, BBC (May 5, 2021), https://www.bbc.com/news/world-us-canada-56218684.

[2] Thomas Fuller, He Came From Thailand to Care for Family. Then Came a Brutal Attack., N.Y. Times (Feb. 27, 2021), https://www.nytimes.com/2021/02/27/us/asian-american-hate-crimes.html.

[3] Ritchel Mendiola, Filipino American Man Slashed in the Face While Riding NYC Subway, Asian J. (Feb. 8, 2021), https://www.asianjournal.com/usa/newyork-newjersey/filipino-american-man-slashed-in-the-face-while-riding-nyc-subway/.

[4] Chelsey Sanchez, Hate Crime Laws Won’t Deliver Justice to AAPI Communities, Harper’s Bazaar (Mar. 26, 2021), https://www.harpersbazaar.com/culture/politics/a35905453/hate-crime-laws-aapi-abolition/.

[5] Russell Jeung et al., Stop AAPI Hate, Stop AAPI Hate National Report 1 (2021), https://secureservercdn.net/104.238.69.231/a1w.90d.myftpupload.com/wp-content/uploads/2021/03/210312-Stop-AAPI-Hate-National-Report-.pdf.

[6] Bill Chappell & Dustin Jones, ‘Enough is Enough’: Atlanta-Area Spa Shootings Spur Debate Over Hate Crime Label, NPR (Mar. 18, 2021), https://www.npr.org/2021/03/18/978680316/atlanta-spa-shootings-expose-frustration-and-debate-over-hate-crime-label.

[7] Sanchez, supra note 4.

[8] Laws and Policies, U.S. Dep’t of Just., https://www.justice.gov/hatecrimes/laws-and-policies.

[9] Nathan Layne & Andy Sullivan, Killings of Asian Women Renew Push for Tougher U.S. Hate Crime Laws, Reuters (Mar. 20, 2021), https://www.reuters.com/article/us-crime-georgia-spas-laws/killings-of-asian-women-renew-push-for-tougher-u-s-hate-crime-laws-idUSKBN2BC0AC.

[10] Jaweed Kaleem, Atlanta-Area Spa Shootings Place Spotlight on Hate Crime Laws, L.A. Times (Mar. 19, 2021), https://www.latimes.com/world-nation/story/2021-03-19/atlanta-spa-shootings-hate-crime-history.

[11] Eric Levenson, Why Prosecuting Hate Crimes Can Be Difficult, CNN (Oct. 31, 2018), https://edition.cnn.com/2018/10/31/us/hate-crimes-charges-motive/index.html.

[12] Layne & Sullivan, supra note 7.

[13] Kaleem, supra note 10.

[14] Sanchez, supra note 4.

[15] Layne & Sullivan, supra note 9.

[16] Shan Wu, Anti-Asian Violence Must Be Charged as a Hate Crime, CNN (Feb. 26, 2021), https://edition.cnn.com/2021/02/25/opinions/hate-crime-anti-asian-violence-wu/index.html.

[17] Id.

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).

Cole Campbell, CLS ’21

A United States District Court recently found that particular regulations targeting littering—and ostensibly unauthorized immigration—substantially burdens the free exercise of some religious practices.[1] Because these regulations are not the least restrictive means of fulfilling a compelling government interest, the court declared them invalid under the Religious Freedom Restoration Act.

Understanding how federal littering and permitting regulations could be invalidated as unduly burdensome on religious practices requires a bit of statutory background. The Religious Freedom Restoration Act, or “RFRA,” was passed by Congress in 1993 to protect the free exercise of religion. At its core, RFRA exempts religious practitioners from laws that substantially burden the exercise of their religious beliefs. But the government can override the exemption if they show that the application of that law to that practitioner is the “least restrict means” of furthering a “compelling government interest.”[2]

Lawyers and law students will recognize that language as akin to the “strict scrutiny” test employed by courts to adjudge government interference in sensitive areas like free speech and religious liberty. Here, Congress essentially imposed strict scrutiny on all federal action that touches on religious practice. Congress is understood to have overruled or superseded a past Supreme Court holding, Employment Division v. Smith (1990), which held that the Free Exercise Clause of the First Amendment “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”[3]

Enter the defendants in United States v. Hoffman (D. Ariz. 2020). The defendants, including named defendant Natalie Hoffman, are volunteers with “No More Deaths,” an organization associated with the Unitarian Universalist Church of Tucson. No More Deaths was founded to combat the deaths of migrants who attempted to enter the United States across dangerous terrain. The group would leave jugs of water in highly trafficked desert areas to help prevent dehydration.

And the defendants did just that in the Cabeza Prieta National Wildlife Refuge in southern Arizona. They entered the park without the requisite permitting, travelled down a restricted-access road to their destination, and dropped off food and water for the anticipated migrants. The defendants were subsequently charged with violating a series of regulations governing the CPNWR, including one that prohibited leaving water bottles, food, blankets, and clothing on the Refuge.[4]

The defendants ultimately raised a defense under RFRA, claiming that the park regs could not be applied to their activities, which they characterized as religious in nature. A typical RFRA analysis will consider first whether the Defendants are being prosecuted for a “sincere exercise of religion,” and then the court will move on assess whether the burden is substantial, whether the government interest is compelling, and whether the law or regulation is the least restrictive means of fulfilling that compelling interest. The defendants succeeded on all counts, but the court’s “sincere exercise of religion” analysis is particularly interesting.

The bulk of the court’s analysis revolves around determining whether the defendants’ practice can be characterized as religious, and whether it is sincere.[5] This is perhaps understandable: the court does not want every defendant cloaking their illegal actions in the garb of religious practice. But it is also a delicate venture. Throughout the opinion, the court is self-conscious of the distastefulness of a court evaluating whether someone’s beliefs are sufficiently sincere—especially in the religious context.[6] And because “No More Deaths” is not overtly religious, but is rather associated with the Unitarian Universalist Church, the court had a tough task on its hands.

The court ultimately engaged in a fine-grained analysis of the defendants’ religious beliefs. With certain defendants, the religious nature of the acts was apparent; Reverend Fife tied his actions to Christ’s words at the Last Judgment. But another defendant gestured towards her belief that their humanitarian activity was “sacred,” and characterized her moments of silence in the desert as a “sort of prayer.”[7] Some of the analyzed testimony would probably not strike one as traditionally “religious,” but the court cited precedent from the Supreme Court and a pair of sister circuits that suggests the protected belief need not fall within an established religion.

The Ninth Circuit will have its say on whether the defendants’ activities are properly protected under RFRA: the prosecutors have reportedly appealed the District Court’s judgment.

[1] United States v. Hoffman, 2020 U.S. Dist. LEXIS 19060 (D. Ariz. 2020).

[2] 42 U.S.C. 2000bb-1(b).

[3] Employment Div. v. Smith, 494 U.S. 872, 879 (1990).

[4] 50 C.F.R. 27.93.

[5] Hoffman, 2020 U.S. Dist. LEXIS 19060 at *10-24.

[6] Id. at *10 (“The Supreme Court has long recognized that a determination of what is a religious belief or practice is a most delicate question” (internal citations and quotation marks omitted)).

[7] Id. at *14-15.

Leo Weissburg, CLS ’21

You may not have heard of Clearview AI. However — if you are one of the hundreds of millions of Americans with a Facebook, Instagram, or Linkedin account — Clearview has almost certainly heard of you. Since 2016, Clearview has quietly “scraped” billions of publicly available photos from millions of websites.^[i] Clearview has used these photos to create a powerful facial recognition app: users simply upload a photo of a person, and Clearview’s app provides links to other publicly available photos of the person — such as their Facebook profile.^[ii] Clearview’s database is orders of magnitude larger than typical law enforcement facial recognition databases — which draw mostly from drivers’ license, passport, and jail booking photos.^[iii] Clearview counts Walmart, the NBA, ICE, and hundreds of local police departments among its clients.^[iv] Since January 2020, when New York Times reporting first brought Clearview’s activities into the public eye, Clearview has been subject to numerous legal threats.

Congress has not yet enacted a general federal data privacy law.^[v] However, some indications suggest that one may not be far off. California has passed the California Citizens’ Privacy Act (CCPA), a broad data privacy statute modeled on the European Union’s recently enacted General Data Protection Regulation (GDPR).^[vi] Many state legislatures are considering similar proposals.^[vii] Concerned that technology companies may face inconsistent (and strict) state privacy regimes, the Chamber of Commerce supports federal legislation in principle.^[viii] Two proposed bills await consideration in the Senate, one supported by the Republican caucus and another supported by the Democrats.^[ix] Concerns about Clearview’s practices may help spur action — Senators Ed Markey and Ron Wyden have sent letters to the company questioning their practices and seeking additional information.[x]

Until Congress enacts federal privacy legislation, affected parties must rely on state law remedies — or pursue theories unrelated to data privacy. Today, the CCPA is the nation’s broadest data privacy law.[xi] In relevant part, the CCPA requires that companies notify individuals when collecting their personal information.^[xii] Companies that collect personal information must also delete all collected information upon request, and allow individuals to opt-out of collection.^[xiii] To satisfy its CCPA obligations, Clearview publishes a “Clearview California Privacy Notice” on its website.^[xiv] While the notice does explain Clearview’s deletion and opt-out procedures, it isn’t clear whether such a statement satisfies the CCPA’s mandate that disclosure be made “at or before the point of collection.”

Putative class actions have been filed in California under the CCPA^[xv] and in Illinois — under that state’s “Biometric Information Privacy Act,” a 2008 law that prohibits companies from collecting individuals’ biometric data without consent.^[xvi] Vermont’s Attorney General has also sued, alleging that Clearview’s practices violate Vermont consumer protection law.^[xvii] The online services from which Clearview obtained photos have also threatened litigation. Facebook, Google, Twitter, Linkedin, Venmo, and Youtube have issued cease-and-desist letters to Clearview, each alleging that Clearview has violated the services’ terms of use.^[xviii] Clearview responds that it has a First Amendment right to make use of publicly available information.^[xix] A recent Ninth Circuit case, HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019), involved (but did not resolve) a similar argument.^[xx] There, Linkedin argued that, by “scraping” publicly available information from Linkedin, HiQ had accessed data without authorization — thus violating the Computer Fraud and Abuse Act (CFAA).^[xxi] The Ninth Circuit rejected this restrictive reading of the CFAA—but did not address HiQ’s First Amendment argument.^[xxii]

Despite these legal challenges and mounting pressure from groups like the ACLU, Clearview’s founder has vowed that his company will continue to operate.^[xxiii] It remains to be seen whether the growth of Clearview and other companies like it will spur Congress to act on a federal privacy bill.

^[i] “Scraping” refers to automated downloading of publically-available web content, typically images. Louise Matsakis, Scraping the Web Is a Powerful Tool. Clearview AI Abused It, Wired, (Jan 25, 2020), https://www.wired.com/story/clearview-ai-scraping-web/.

^[ii] Kashmir Hill, The Secretive Company That Might End Privacy as We Know It, N.Y. Times, (Jan. 18, 2020), https://www.nytimes.com/2020/01/18/technology/clearview-privacy-facial-recognition.html.

^[iii] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[iv] Ryan Mac et. al., Clearview’s Facial Recognition App Has Been Used By The Justice Department, ICE, Macy’s, Walmart, And The NBA, Buzzfeed News (Feb. 27, 2020), https://www.buzzfeednews.com/article/ryanmac/clearview-ai-fbi-ice-global-law-enforcement.

^[v] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[vi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[vii] Rachel Marmor et. al., “Copycat CCPA” Bills Introduced in States Across Country, DWT Privacy & Security Law Blog, (Feb. 8, 2020), https://www.dwt.com/blogs/privacy–security-law-blog/2019/02/copycat-ccpa-bills-introduced-in-states-across-cou/.

^[viii] David Saunders & Allison Glover, INSIGHT: A Federal Privacy Bill May Be Closer Than Once Thought, Bloomberg Law, (Feb. 14, 2020), https://news.bloomberglaw.com/privacy-and-data-security/insight-a-federal-privacy-bill-may-be-closer-than-once-thought.

^[ix] Id.

Wendy Zhang, Comprehensive Federal Privacy Law Still Pending, Nat’l. Law Review, (Jan. 22, 2020), https://www.natlawreview.com/article/comprehensive-federal-privacy-law-still-pending.

[x] Ryan Mac et. Al., Senators Are Probing Clearview AI On The Use Of Facial Recognition By Gulf States And International Markets, Buzzfeed News, (Mar. 4, 2020), https://www.buzzfeednews.com/article/ryanmac/senators-markey-wyden-clearview-ai-facial-recognition.

[xi] Anjali C. Das & Stefanie L. Ferrari, California Consumer Privacy Act Effective January 1, Nat’l L. Rev., (Dec. 3, 2019), https://www.natlawreview.com/article/california-consumer-privacy-act-effective-january-1-update.

^[xii] Id.

^[xiii] Id.

^[xiv] California Privacy Notice, Clearview AI, (Last visited Mar. 31, 2020), https://staticfiles.clearview.ai/clearview_california_notice.html.

^[xv] The CCPA provides no private right of action, except for claims arising out of data breaches or hacks. The Burke complaint frames the alleged CCPA violations as also violating the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, which prohibits businesses from engaging in practices that violate other California laws—such as the CCPA. Complaint, Burke v. Clearview AI, Inc., No. 3:20-cv-00370, 4 (S.D. Cal. Feb. 27, 2020). However, the CCPA appears to explicitly disclaim this kind of bootstrapping. Cal. Civ. Code § 1798.150(c) (“Nothing in this title shall be interpreted to serve as the basis for a private right of action under any other law.”).

^[xvi] Daniel R. Stoller, Sarah Merken, Clearview AI Faces California, Illinois Lawsuit After Breach, Bloomberg Law, (Feb 28, 2020), https://news.bloomberglaw.com/privacy-and-data-security/clearview-ai-faces-california-illinois-lawsuit-after-breach.

^[xvii] Complaint, State of Vermont v. Clearview AI, Inc., Vt, Super. Ct. (Filed Mar. 10, 2020);

Press Release, Office of the Vermont Attorney General, Attorney General Donovan Sues Clearview AI for Violations of Consumer Protection Act and Data Broker Law (Mar. 10, 2020), https://ago.vermont.gov/blog/2020/03/10/attorney-general-donovan-sues-clearview-ai-for-violations-of-consumer-protection-act-and-data-broker-law/.

^[xviii] Kashmir Hill, Twitter Tells Facial Recognition Trailblazer to Stop Using Site’s Photos, N.Y. Times, (Jan 22, 2020) https://www.nytimes.com/2020/01/22/technology/clearview-ai-twitter-letter.html.

^[xix] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xx] HiQ Labs, Inc. v. Linkedin Corp., 938 F.3d 985 (9th. Cir. 2019).

^[xxi] Kaixin Fan, Clearview AI Responds to Cease-and-Desist Letters by Claiming First Amendment Right to Publicly Available Data, JOLT Digest, Harv. J. L. & Tech. (Feb. 25, 2020), http://jolt.law.harvard.edu/digest/clearview-ai-responds-to-cease-and-desist-letters-by-claiming-first-amendment-right-to-publicly-available-data.

^[xxii] Id.

^[xxiii] Caroline Haskins et. al., The ACLU Slammed A Facial Recognition Company That Scrapes Photos From Instagram And Facebook, Buzzfeed News, (Feb. 10, 2020) https://www.buzzfeednews.com/article/carolinehaskins1/clearview-ai-facial-recognition-accurate-aclu-absurd.

Bastian Shah, CLS ’21

As governments ban gatherings to stop the spread of Covid-19, workplaces and universities are shifting to teleconferencing platforms to replace in-person meetings and classes. Before the pandemic, Zoom had been a go-to teleconferencing platform for companies and universities.[1] Now, many schools and businesses, including Columbia University, are meeting exclusively over Zoom. Data privacy watchdogs and digital rights groups have raised questions about Zoom’s use and handling of user data.[2] In the rush to implement social distancing while maintaining business and learning, one may question whether decisionmakers adequately considered security and privacy when choosing a teleconferencing platforms. This post summarizes what we know and don’t know about Zoom’s 1) collection, 2) sale, and 3) disclosure to law enforcement of user data.

Zoom’s Data Collection

The Electronic Frontier Foundation (EFF), an impact litigation organization advocating online free speech, has raised concerns about how much data Zoom collects from users.[3] Like most paid online services, Zoom collects payment information, names, physical locations, and device information from its users.[4] In addition, Zoom allows administrators, like employers and school officials, to record meeting sessions and track users’ computer usage while Zoom is open.[5] It is these employer surveillance measures to which EFF primarily objects.[6] As a result of social distancing policies, employers are surveilling workers in their own homes, raising additional privacy concerns.

Sale of User Data

Zoom’s “Privacy Policy” is ambivalent about whether it sells user data. It does not “allow marketing companies, advertisers, or anyone else to access Personal Data in exchange for payment.”[7] Zoom, in its “humble opinion,” does not “think most of [its] users would see [it] as selling their information.”[8] However, Zoom does share data with third parties, like Google Ads, that advertise on Zoom,[9] and those third parties may use that data for their general advertising business. Despite its “humble opinion,” Zoom’s distribution of user data to third parties for advertising purposes “may be considered a ‘sale’ … under the California Consumer Privacy Act.”[10] Zoom users in California can, therefore, opt-out of the sale of their data to third parties. Students and employees from other states required to use Zoom must either acquiesce to the sale of their data to third parties or discontinue schooling or employment.

Sharing Data with Law Enforcement.

Access Now, a watchdog group that advocates for digital privacy and civil rights, has sent an open letter to Zoom.[11] The letter requests Zoom issue reports on what “safeguards against government abuses” it has in place and “the number of government requests for user data” it receives.[12] Many large tech companies, including Microsoft, which operates Skype; Google, which operates Hangouts; and Facebook, which operates WhatsApp, publicly report data on government requests for user information and policies for data breaches.[13] Zoom does not currently issue such a report. Zoom discloses no information on how many law enforcement demands it receives, nor whether it notifies customers whose information has been requested by law enforcement. Zoom’s privacy policy states that the company will respond “to a legally binding demand for information” but gives no detail on how, or if, it protects against government overreach.[14] Fear of government overreach is compounded by the existence of “Zoom for Government,” a Zoom service for government agencies accredited and used by the Department of Homeland Security.[15] Vulnerable populations, such as undocumented immigrants, may feel less safe working or learning from home with the knowledge that Zoom may, without notice, disclose their location and demographic data to law enforcement.

Teleconferencing platforms like Zoom are allowing important economic and educational activities to continue despite the Covid-19 pandemic. However, those advocating for legal protections for digital privacy have questioned whether Zoom is unambiguously positive for students and employees. Without nationwide legislation addressing online privacy and security rights, states and watchdog groups are left on their own in addressing the digital side of the current crisis.

[1] See Laurie Clarke, Zoom Urged to Be Transparent About Government Data Requests, New Statesman (Mar. 19, 2020), https://tech.newstatesman.com/security/zoom-government-data-requests (“Even before the coronavirus outbreak, Zoom was reportedly used by over 60 per cent of Fortune 500 companies and over 96 per cent of the top 200 universities in the US.”)

[2] See Isedua Oribhador, et al., Open Letter: Zoom’s Policies Affecting Digital Rights, Access Now (Mar. 18, 2020), https://www.accessnow.org/cms/assets/uploads/2020/03/Letter-to-Zoom-.pdf; Lindsay Oliver, What You Should Know About Online Tools During the Covid-19 Crisis, Electronic Frontier Foundation (Mar. 19, 2020), https://www.eff.org/deeplinks/2020/03/what-you-should-know-about-online-tools-during-covid-19-crisis;

[3] See Oliver, supra note 2.

[4] Zoom Privacy Policy, Zoom (Mar. 18, 2020), https://zoom.us/privacy.

[5] Attendee Attention Tracking, Zoom (last visited Mar. 29, 2020), https://support.zoom.us/hc/en-us/articles/115000538083-Attendee-attention-tracking (detailing how to ensure employees keep the Zoom app “in focus” on their screens during meetings).

[6] See Oliver, supra note 2.

[7] Zoom Privacy Policy, supra note 4.

[8] See id.

[9] See id.

[10] Id. (California Consumer Privacy Act information only appears as a pop-up when viewing the website on a computer located in California or using a private browser session) (on file with Colum. J.L.. & Soc. Probs.). See also, Cal. Civ. Code § 1798.140(t)(1) (Deering 2020) (“‘[S]ale’ … means … making available … a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.”).

[11] See Oribhador, supra note 2.

[12] Id.

[13] See Transparency Reporting Index, Access Now (last visited Mar. 22, 2020), https://www.accessnow.org/transparency-reporting-index/.

[14] See Zoom Privacy Policy, supra note 4.

[15] See Priscilla Barolo, Zoom Achieves FedRAMP Moderate Authorization, Zoom (May 7, 2019), https://blog.zoom.us/wordpress/2019/05/07/zoom-achieves-fedramp-moderate-authorization/ (Announcing Zoom for Government’s sponsorship by the United States Department of Homeland Security); Who’s Behind Ice: The Tech and Data Companies Fueling Deportations, National Immigration Project at 6, 24 (last visited Mar. 29, 2020), https://www.nationalimmigrationproject.org/PDFs/community/2018_23Oct_whos-behind-ice.pdf (noting that “Zoom for Government” is used by the Department of Homeland Security, possibly for Customs and Border Protection).

Katie Friel, CLS ’21

On November 8, 2018, Florida passed Amendment 4 to its constitution, restoring the voting rights of the state’s ex-felons who have completed all terms of their sentences, including parole or probation.[1] According to reports, Amendment 4 would make an estimated 1.4 million Floridians eligible to vote.[2] In a matter of months after Amendment 4’s passage, in June 2019, Florida Governor Ron DeSantis signed Senate Bill 7066, which implemented the Amendment and interpreted its language of “completion of all terms of sentence” to include a requirement that a felon pay all fines, fees, and restitution associated with his sentence before any rights are restored.[3] The Supreme Court of Florida subsequently confirmed this interpretation of Amendment 4, ruling that the text of the Amendment required completion of all payments associated with an individual’s sentence as a precondition to re-enfranchisement.[4]

Almost immediately after the enactment of SB 7066, seventeen ex-felons in Florida filed suits in federal court, challenging the constitutionality of SB 7066’s “fines and fees” requirement.[5]  As the highest court in the state, the Florida Supreme Court’s prior interpretation of Amendment 4 is determinative;[6] therefore, the only question for the federal courts is whether SB 7066 and Amendment 4, so interpreted, violates the United States Constitution. The fines and fees requirement, plaintiffs argued in a consolidated action in the Northern District of Florida, is a violation of the Equal Protection Clause of the 14^th Amendment because it punishes indigent citizens more harshly—by denying them the right to vote—than those who are able to pay their fines and fees.[7] Were it not for this requirement and their genuine inability to pay, plaintiffs argued, they would be eligible to vote under Amendment 4.[8] Following an evidentiary hearing, the district court granted plaintiffs’ motion for a preliminary injunction on October 18, 2019, enjoining the defendants from denying them access to the ballot box based solely on their inability to pay their fines and fees.[9]

Defendants subsequently appealed the district court’s injunctive relief, and, on February 19, 2020, the 11^th Circuit issued its decision on the matter.[10] The Court of Appeals found that the fines and fees requirement disproportionally punishes those who are unable to pay, resulting in the loss of a fundamental right—that to vote.[11] Typically, felon disenfranchisement and re-enfranchisement schemes are subject to rational basis review[12]; however, there are instances that may call for stricter scrutiny. For example, though wealth is not typically a suspect class, as the circuit court noted, Supreme Court precedent suggests that wealth classifications may be subject to heightened scrutiny when “they are used to restrict access to the franchise and in the administration of criminal justice,” both of which apply in Jones[13]; further, heightened scrutiny traditionally applies when fundamental rights are implicated—fundamental rights such as the right to vote.[14] As such, the court found, an analysis of the fines and fees requirement warrants heightened scrutiny.[15] Applying this standard, the 11^th Circuit found that the requirement likely violates the Equal Protection Clause as applied to the seventeen plaintiffs in the case.[16] Therefore, having also concluded that the plaintiffs would suffer irreparable injury in the absence of injunctive relief[17], that potential injury outweighs any harm to the defendants[18], and relief would be in the public interest[19], the court affirmed the district court’s preliminary injunction.[20]

[1] Jones v. Governor of Fla., 950 F.3d 795, 800 (11th Cir. 2020).

[2] Id.

[3] Id.

[4] Id. at 803.

[5] Id. at 804.

[6] Id.

[7] Id. at 805.

[8] Id. at 804.

[9] Id. at 805.

[10] Id. at 800.

[11] Id. at 800.

[12] Id. at 823.

[13] Id. at 808.

[14] Id.

[15]  Id. (“Once a state provides an avenue to ending the punishment of disenfranchisement, it must do so consonant with the principles of equal protection, and it may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny.”).

[16] Id. at 827.

[17] Id. at 828.

[18] Id. at 829-30.

[19] Id. at 830-31.

[20] Id. at 832-33.

Jaime Brosnan, CLS ’21

Throughout the coronavirus pandemic, Americans have heard the President issue federal stay-at-home guidelines, including a nationwide lockdown until April 30^th. Americans have also heard the President discuss potentially lessening those restrictions and reopening businesses after this date; however, it is not his call to make. [1]  Although it may appear from the Coronavirus Task Force press conferences that the President ordered the current lockdowns, it is the state governments who possess the authority to impose these types of restrictions, although they often take their cues from the federal government. States have the police power to regulate almost everything in its state, including the ability to issue statewide lockdowns, force closures of institutions and businesses, limit public gatherings and prevent travel.[2] Protecting public health and safety is one of the states’ most compelling use of state power. [3] Under the Constitution, the federal government has a limited set of enumerated powers, leaving the state government with the primary authority to fight the pandemic.[4] States have many key advantages over the federal government in enacting these types of restrictions during an emergency, including more knowledge on its own resources and hazards, ability to shape policies on local issues and more flexibility to alter their emergency response plans.[5] That’s not to say the federal government does not possess any power during this crisis. The federal government has the power to provide medical supplies, transfer money to state governments, bar individuals with coronavirus from entering the United States, and fund research for a vaccine. It cannot, however, impose statewide quarantines.[6]

While some experts suggest a national lockdown would dramatically help slow the spread of the coronavirus[7], the United States federalism system likely prevents the federal government from officially enacting one and, instead, leaves that power in the hands of the individual states.[8] Although national emergencies, especially wartime, usually give rise to broader presidential power, a national shelter-in-place order is unprecedented and could likely be challenged in court.[9] While the President’s constitutional authority during emergency crises is not entirely defined[10], without an executive order to the contrary, the states have the lockdown power in their hands. A successful nationwide lockdown would require joint cooperation from all states, but states have each enacted varying levels of restrictive measures. Thirteen states, including New York and California, enacted the most restrictive measures in closing all nonessential businesses and prohibiting all gatherings. [11] Meanwhile, twelve states have yet to issue official statewide stay-at-home orders, including Alabama, Arkansas, Iowa, Missouri and North Dakota.[12] All states have issued some form of restriction, but their degree of prohibitions and exemptions vary. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases and a key leader in the administration’s coronavirus response, does not believe a nationwide shutdown is necessary because of the variation in infection rates across the states. [13] Nonetheless, responsibility for making decisions about the pandemic rests with the states, not the federal government, so look to your state governor for an update on your state’s individual restrictive stay-at-home measures during this pandemic.

[1] Walter Olson, Federalism and the Coronavirus, The Wall Street Journal https://www.wsj.com/articles/federalism-and-the-coronavirus-lockdown-11585609012

(Mar. 30, 2020).

[2] John Yoo, Pandemic Federalism, National Review, https://www.nationalreview.com/2020/03/pandemic-federalism/ (Mar. 20, 2020).

[3] Id.

[4] Id.

[5] See Olson, supra note 1.

[6] See Yoo, supra note 2.

[7] Nurith Aizenmen, Experts Say the U.S. Needs a National Shutdown ASAP—But Differ on What Comes Next, National Public Radio https://www.npr.org/sections/health-shots/2020/03/27/822146372/experts-say-the-u-s-needs-a-national-shutdown-asap-but-differ-on-what-comes-next (Mar. 27, 2020).

[8] See Yoo, supra note 2.

[9] Reid Wilson, Could Trump Declare a National Coronavirus Shutdown? Momentum is Rising, The Hill https://thehill.com/homenews/state-watch/488735-could-trump-declare-national-coronavirus-shutdown-momentum-is-rising (Mar. 20, 2020).

[10] Id.

[11] Id.

[12] Cristina Marcos, Several States Have Yet to Issue Stay-at Home Orders, The Hill https://thehill.com/homenews/state-watch/490695-several-states-have-yet-to-issue-stay-at-home-orders (Apr. 1, 2020).

[13] See Aizenman, supra note 6.

Morgan Marmaro, CLS ’21

For many of us, the COVID-19 pandemic has brought life to a halt. States have rushed to implement social distancing measures, ordering the close of non-essential businesses while non-essential workers work from home. This has provoked the question of “what is essential?” Hospitals, sanitation, courier, and restaurant workers all made the cut.[1] While keeping hospitals and streets clean are essential, Trump’s Environmental Protection Agency made the decision on March 26th that enforcing environmental violations was non-essential.[2]

There has been a backlash against the new temporary policy as many see the move as the administration taking advantage of an unprecedented global pandemic to advance their deregulatory agenda. Though facilities must comply with regulations “where reasonably practicable,” the EPA will not “seek penalties for noncompliance with routine monitoring and reporting obligations.”[3] The EPA announcement stresses that the measures are temporary and only affect “routine monitoring and reporting obligations.”[4] Moreover, the policy only applies to civil violations and “does not provide leniency for intentional criminal violations of law.”[5]

To qualify for discretionary enforcement, facilities must provide documentation of “decisions made to prevent or mitigate noncompliance” and establish a causal link between the COVID-19 pandemic and the company’s noncompliance.[6] David Uhlmann, former chief of the environmental crimes section at the Justice Department, noted that suspicion of the decision—given Trump’s “deplorable record” on environmental protection—is not unfounded, but that “this policy may be less nefarious than the alarming environmental rollbacks that the Trump EPA continues to pursue.”[7]

Environmental advocates are unconvinced by the supposedly narrowly tailored policy. While some flexibility for the current pandemic might be understandable, environmental advocates are concerned that the COVID-19 pandemic is merely pretextual. Cynthia Giles, the former head of the EPA’s Office of Enforcement, noted that “[t]his EPA statement is essentially a nationwide waiver of environmental rules for the indefinite future” and that she is “not aware of any instance when EPA ever relinquished this fundamental authority as it does in this memo.”[8] After all,  as noted by senior attorney for Environment America, John Rumpler, “the absence of verified monitoring strikes at the heart of environmental compliance.”[9]

The policy also has some inconsistencies. While the EPA says documentation about the causal link between noncompliance and COVID-19 is mandatory to avail oneself of the enforcement discretion, it still forgoes all fines or civil penalties for failure to monitor, report, or meet other requirements.[10]  The L.A. Times was quick to note that the oil and gas industries had been lobbying for relaxed environmental enforcement due to staffing issues.[11] Gina McCarthy, the former Obama-era EPA chief explained her outrage at the policy, noting that the waiver applied to “standard work that takes very few people to do.”[12] She further commented that many of the companies lobbying to relax standards due to staffing issues are also lobbying to keep their factories open so workers can keep their jobs.[13]

By implementing this policy, states will lack critical data on what pollutants have been released, hampering future environmental clean-up efforts. It is also interesting to see an ex ante pass being given to facilities rather than dealing with cases as they come up post-pandemic. How effective, or ineffective, the nascent policy will be depends entirely on enforcement and implementation.

[1] And from all of us quarantined at home, thank you profusely!

[2] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[3] Isaac Scher, The Environmental Protection Agency says it won’t enforce its own rules during the coronavirus pandemic, Business Insider (Mar. 27, 2020), https://www.businessinsider.com/coronavirus-epa-stops-enforcing-environmental-protection-rules-2020-3.

[4] Ledyard King, EPA suspends some public health monitoring and enforcement because of the coronavirus crisis, USA Today (Mar. 27, 2020), https://www.usatoday.com/story/news/politics/2020/03/27/coronavirus-crisis-epa-eases-key-permitting-enforcement-oversight/2925990001/.

[5] See Scher.

[6] Press Release, Environmental Protection Agency, EPA Announces Enforcement Discretion Policy for COVID-19 Pandemic, EPA.GOV (Mar. 26, 2020), https://www.epa.gov/newsreleases/epa-announces-enforcement-discretion-policy-covid-19-pandemic-0.

[7] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[8] See Scher.

[9] See King.

[10] Susanne Rust et al., Citing coronavirus, EPA suspends enforcement of environmental laws, L.A. Times (Mar. 27, 2020), https://www.latimes.com/environment/story/2020-03-27/epa-suspends-enforcement-amid-coronavirus.

[11] Id.

[12] Id.

[13] Id.

Wicy Wang, CLS ’21

The story of the proposed $26 billion merger between T-Mobile and Sprint began last year, when the Federal Communications Commission and the U.S. Justice Department approved the deal contingent, in part, on the divestiture of certain assets.[1] However, there remained concerns about the merger, which would combine the third- and fourth-largest wireless carriers in the U.S. into an expansive corporation servicing approximately 100 million customers.[2] In June 2019, ten attorney generals, including the New York State Attorney General, filed suit in the Southern District of New York to enjoin the merger from taking place under Section 7 of the Clayton Act; they argued that the increased market concentration would result in “diminished competition, higher prices, and reduced quality and innovation.”[3]

On February 11, the S.D.N.Y. dismissed the case, allowing the merger between Sprint and T-Mobile to move forward.[4] The court did not agree that “the New T-Mobile would pursue anticompetitive behavior that . . . will yield higher prices or lower quality for wireless telecommunications services.”[5] One important factor the court noted was that T-Mobile and Sprint have agreed to keep prices steady for three years following the merger; as part of its antitrust analysis, the court was also skeptical that, absent the merger, Sprint’s financial situation would have allowed it to remain competitive in the telecommunications industry.[6]

From an antitrust perspective, the court primarily looked at two ways in which such a merger would be anticompetitive.[7] Firstly, the court dismissed the possibility that the merger would enable “coordinating effects,” where rival firms work together to set high prices that harm consumers. The court gave particular credence to the argument that in the telecommunications industry, firms compete on other dimensions than price such as capacity advantages.[8] Secondly, the court also discounted “unilateral effects” resulting from a general lack of competition, citing AT&T and Verizon as other active competitors in the telecommunications space.[9]

The merger still has its fair share of skeptics. FCC Jessica Rosenworcel argued last year that the promise by T-Mobile not to raise prices is rendered meaningless by the existence of loopholes and surcharges, and that such a promise might not be enforced by the FCC anyway.[10] Furthermore, the telecommunications industry is notorious for its lack of competition at the local level, because of how closely service is tied to geographic coverage; in the New York City metropolitan area, for instance, “the combined company’s share of subscribers would exceed 50%.”[11] And unsurprisingly, the merger is taking place against a backdrop of general industry consolidation;[12] in 2018, AT&T completed its $85.4 billion merger with Time Warner.

What might explain the court’s decision to dismiss this case is a history of generally conservative judicial approaches to antitrust cases, which are traditionally left to federal agency review. In its decision, the court also expressed a fundamental ambivalence towards deciding antitrust cases, noting that the presentation of expert witnesses on both sides was not only unhelpful but counterproductive, and that “conflicting engineering, economic, and scholarly business models . . . essentially cancel each other out as helpful evidence.”[13] Later on in the opinion, the court argues that without discounting economic models, “more traditional judicial methods” are a better approach.[14] By relying on “traditional judicial methods,” however, the court does turn away from data-driven analyses by experts, relying instead on statements from executives in making its decision.[15]

For now, the New York Attorney General has declined to appeal the case.[16] The merger is moving forward, pending approval from the California Public Utility Commission,[17] although it is unclear at the moment how the state public utility commission’s decision would affect the merger.[18] Regardless of whether the merger eventually takes place, this particular case provides an interesting case of state attorney generals asserting their interest under federal antitrust law.

[1] Makena Kelly, T-Mobile and Sprint Merger Approved By Justice Department, The Verge (July 26, 2019) https://www.theverge.com/2019/7/26/6646158/t-mobile-sprint-merger-justice-department-approves-26-billion-fcc.

[2] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[3] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[4] New York v. Deutsche Telekom AG, 2020 WL 635499 (S.D.N.Y. 2020).

[5] Id. at 4.

[6] Id.

[7] Id. at 39.

[8] Id. at 41.

[9] Id. at 43.

[10] Jessica Rosenworcel, The T-Mobile and Sprint Merger Will Only Hurt Consumers, The Atlantic (Oct. 16, 2019) https://www.theatlantic.com/ideas/archive/2019/10/t-mobile-and-sprints-merger-will-hurt-consumers/599245.

[11] Redacted Third Amended Complaint, New York v. Deutsche Telekom AG, No. 1:19-cv-5434 (S.D.N.Y. Sept. 18, 2019).

[12] Edmund Lee, T-Mobile and Sprint Are Cleared to Merge as the Big Get Bigger, The New York Times, (Feb. 11, 2020) https://www.nytimes.com/2020/02/11/business/media/t-mobile-sprint-merger.html.

[13] New York v. Deutsche Telekom AG, 2020 WL 635499 at 2 (S.D.N.Y. 2020).

[14] Id. at 44.

[15] Id.

[16] Jennifer Ablan and Ortenca Aliaj, New York Decides Against T-Mobile-Sprint Merger Appeal, Financial Times (Feb. 16, 2020) https://www.ft.com/content/66fba848-50ed-11ea-90ad-25e377c0ee1f.

[17] Jon Reid and Victoria Graham, Sprint, T-Mobile Still Need OK From California Utility Regulator, Bloomberg Law (Feb. 11, 2020) https://news.bloomberglaw.com/tech-and-telecom-law/sprint-t-mobile-still-need-ok-from-california-utility-regulator.

[18] Sarah Krouse, California Regulators a Potential Obstacle to T-Mobile, Sprint Merger (Jan. 26, 2020), https://www.wsj.com/articles/california-regulators-a-potential-obstacle-to-t-mobile-sprint-merger-11580063967.

Zhihao (Amy) Zhang, CLS ’21

The Second Circuit recently grappled with the scope of a landlord’s duty to intervene in tenant-on-tenant racial harassment under the Fair Housing Act (“FHA”), and the decision may have significant consequences for the future of landlord-tenant litigation.

In Francis v. Kings Park Manor, Inc., the plaintiff, after moving into an apartment complex owned by the defendants, soon became the victim of “a brazen and relentless campaign of racial harassment, abuse, and threats.”[1] While the plaintiff sought help from the police several times and reported the incidents to his landlord, the landlord failed to respond to his complaints, let alone taking any substantive steps to resolve the conflict or evict the harasser from the property. The harasser eventually pled guilty to harassment charges, and the plaintiff subsequently filed this suit against his landlord.

One of the grounds on which the harassed tenant sued his landlord is alleged violation of section 3604 (b) of the FHA[2] and section 3617 of the Act.[3] The plaintiff argued that in failing to remedy a racially hostile housing environment, the landlord’s behavior amounted to intentional discrimination prohibited by the FHA. While the district court dismissed the plaintiff’s FHA claims, the Second Circuit took a different position and reinstated the claims. Noting that the defendants were “actually aware” of the discriminatory behavior and had a history of “[intervening] against other tenants regarding non‐race‐related violations of their leases or of the law,” the Second Circuit concluded that the landlord’s conduct evinced intentional discrimination that is cognizable under the FHA.[4]

In reinstating the plaintiff’s claims, the Second Circuit joined the Seventh Circuit in deeming landlords liable when they fail to intervene in situations concerning tenant-on-tenant harassment on the basis of a protected class.[5] This ruling can lead to a significant increase in litigation attempting to hold landlords accountable even when they themselves are not the primary perpetrators of discrimination. Tenants under the jurisdiction of other circuit courts may cite to this opinion and urge their courts to follow suit.

There is, however, some concern with the actual impact of the Second Circuit’s decision and the legal uncertainty it may create. First, since the court determines that landlord liability in the racial discrimination context can be predicated on a finding of past interventions by the landlord in non-race-related disputes, this may create perverse incentives for landlords to stop addressing all disputes going forward, thus diminishing the quality of housing services. Furthermore, as Judge Livingston points out in her dissent, the court provides no “parameters of the necessary intervention.”[6] The question remains as to what responses landlords must produce to tenants’ complaints in order to avoid a finding of intentional discriminatory practice. In the face of mounting threats of litigation, they may well pass along the burden to those seeking protection under the FHA through more onerous housing costs, further rendering housing inaccessible to those who need it the most.[7]

[1] 944 F.3d 370, 373 (2d Cir. 2019).

[2] Section 3604(b) of the FHA makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” 42 U.S.C. § 3604(b).

[3] “It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the Act].” 42 U.S.C. § 3617.

[4] Francis, 944 F.3d at 379.

[5] Joseph William Singer, Landlord may be liable for fair housing violation if no response to one tenant’s racial harassment of another, Property Law Developments (Dec. 7, 2019), https://scholar.harvard.edu/jsinger/blog/landlord-may-be-liable-fair-housing-violation-if-no-response-one-tenants-racial.

[6] Id. at 395 (Livingston, J., dissenting).

[7] Id. (cautioning that “this decision . . . is but another stumble along the path to ever more litigation that increases housing costs for those who rent, renders affordable housing more scarce, and risks the loss of housing for some of the most vulnerable among us”).

Susannah Price, CLS ’21

On January 30, 2020, the Ninth Circuit issued a decision that may usher intense scrutiny of universities’ past and present practices for addressing sexual misconduct on their campuses.

In Karasek v. Regents of the University of California,[1] three former students who were sexually assaulted while undergraduates at the University of California, Berkeley (Berkeley), sued their alma mater, asserting two theories of liability under Title IX of the Education Amendments Act of 1972 (Title IX).[2]  First, they alleged that Berkeley failed to adequately investigate and respond to their individual reports of sexual assault. Second, they alleged that Berkeley cultivated “a general policy of deliberate indifference to sexual misconduct” against female students that created a “sexually hostile environment” and increased the risk that they would be sexually assaulted.[3] This latter theory of deliberate indifference is known as a “pre-assault claim” due to its reliance on events that occur before the assault in question.[4] The Ninth Circuit affirmed the district court’s judgment in favor of Berkeley with respect to the plaintiffs’ individual assaults, but vacated its dismissal of the pre-assault claim and remanded for further proceedings.[5]

In holding that pre-assault deliberate indifference is a cognizable theory of Title IX liability, the Court explained that a school need not have had actual knowledge of a specific assault for liability to attach when that school’s official policy violates Title IX.[6] Thus, rather than zeroing in on a school’s response to a particular report of sexual assault, pre-assault claims allege that a school’s policies and practices, in general, contribute to the occurrence of sexual misconduct by failing to adequately prevent it.[7] According to the Court, a pre-assault claim should not be dismissed if the plaintiff plausibly alleges that: “(1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result.”[8] The Court did not provide further guidance as to what conditions would satisfy this standard, but rather left it to the district court to determine on remand.[9]

Despite the Court’s reassurances that universities are not required to “purge” their campuses of all sexual misconduct or “guarantee[] the good behavior of [their] students,” Karasek has serious implications for universities in the Ninth Circuit. Some predict that this decision will cause previously adjudicated Title IX complaints to face more exacting inspection.[10] For example, since Karasek establishes a framework that focuses on policies prior to the occurrence of sexual assault, plaintiffs bringing pre-assault claims will likely seek to introduce the details of past complaints as relevant to proving their own cases.[11] Attorneys representing educational institutions worry that this, in turn, may raise privacy concerns and increase the scope and cost of discovery.[12]

While the precise outcome remains to be determined, this ruling gives new hope to victims of sexual assault on college campuses.[13] Karasek is expected to incentivize Berkeley and other universities across the Ninth Circuit to ensure prompt and effective responses to future allegations, provide preventative training opportunities for students, and assess the overall climate of their campuses with respect to sexual misconduct.[14]

[1] Karasek v. Regents of the Univ. of Cal., 2020 U.S. App. LEXIS 2933, *1 (9th Cir. Jan. 30, 2020).

[2] Id. at *4.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *38-39.

[7] Id.

[8] Id. at *39-40.

[9] Id. at *45.

[10] Susan D. Friedfel and Jason A. Ross, University’s Handling of Students’ Pre-Assault Complaints of Sexual Misconduct Open to Title IX Claim, Nat’l L. Rev. (Feb. 14, 2020), https://www.natlawreview.com/article/university-s-handling-students-pre-assault-complaints-sexual-misconduct-open-to.

[11] Id.

[12] Id.

[13] See Press Release, The Zalkin Law Firm, The Zalkin Law Firm Secures Landmark Ruling in Title IX Sexual Assault Lawsuit Against University of California Berkeley (Feb. 3, 2020), https://www.pr.com/press-release/804817.

[14] See id. See also Paige Hoster Good, Across Campus: Title IX ‘Pre-Assault’ Claims May Increase Liability for Universities, McAfee & Taft (Feb. 24, 2020), https://www.jdsupra.com/legalnews/across-campus-title-ix-pre-assault-97179/.

Noah Bunnell, CLS ’21

Amid a flurry of increasingly aggressive immigration actions by the Trump administration, a number of lawsuits challenging the new DHS “public charge” rule, governing the admissibility of immigrants into the United States, continue to wend their way through the courts.

On January 27, 2020, the Supreme Court granted a stay pending appeal of a preliminary injunction issued by a federal district court in New York, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place — and allowing the “public charge” rule to go into effect.^[1] But on February 21, 2020, by way of another 5-4 vote, the Court granted an additional stay with respect to the State of Illinois,^[2] giving leave to U.S. Citizenship and Immigration Services (USCIS) to begin implementing the final rule in all 50 states on February 24, 2020.^[3]

What’s at stake here, most immediately, is immigrants’ eligibility for permanent legal status. Under the Immigration and Nationality Act, an individual seeking permanent resident status is inadmissible if he, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”^[4] The new rule — which defines “public charge” as an “alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months)”^[5] — amounts to a significant expansion of DHS’s previous interpretation of the statute.

For the past 20 years, the federal government defined “public charge” as someone who had become or was likely to become “primarily dependent on the government for subsistence.”^[6] The guidance issued in 1999 “specified that the federal government would not consider use of Medicaid, CHIP, or other supportive programs in public charge determinations, with the exception of use of Medicaid for long-term institutional care.”^[7] DHS’s redefinition now permits USCIS to deny residency to anyone it deems likely to receive any of a wide range of cash or non-cash benefits.^[8]

In their challenge to the rule, three states, New York City, and a number of immigrant rights groups have argued, among other things, that the administration’s interpretation of the rule is in excess of its statutory jurisdiction and arbitrary and capricious under § 706(2) of the Administrative Procedure Act.^[9] It remains to be seen whether the Court will end up facing any of these issues on the merits, but the 5-4 grants of stay in Department of Homeland Security v. New York and Wolf v. Cook County, Illinois surfaced broader doctrinal issues that continue to agitate some members of the Court.

Along with the January 27 grant of stay, Justice Gorsuch^[10] filed a concurring opinion, joined by Justice Thomas, in which he decried the “increasingly common practice of trial courts ordering relief that transcends the cases before them. Whether framed as injunctions of ‘nationwide,’ ‘universal,’ or ‘cosmic’ scope, these orders share the same basic flaw—they direct how the defendant must act toward persons who are not parties to the case.”^[11]

Relying on a 2017 law review article by Samuel Bray,^[12] Gorsuch argued that nationwide injunctions are constitutionally suspect,^[13] expressing hope that the Court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions” raised by their use.^[14] Echoing Bray, Gorsuch also contended that as a matter of judicial policy such injunctions are “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected.”^[15] Specifically, Gorsuch argued, they facilitate forum shopping,^[16] increase the risk of conflicting injunctions,^[17] prevent legal questions from percolating up through multiple circuits,^[18] and “tend to force judges into making rushed, high-stakes, low-information decisions.”^[19]

The other side of the argument, left largely untouched by Gorsuch’s concurring opinion, counsels that universal injunctions play an important role in “preventing widespread harm.”^[20] Forcing plaintiffs to wait for a lawsuit to reach the Supreme Court before an injunction can be issued ignores the fundamental reality that injunctions are issued to prevent “irreparable harm.” And in the immigration context in particular, nationwide injunctions may be the only means of affording complete relief to plaintiffs.^[21] The alternative — permitting federal courts only to grant injunctions of limited geographical scope — would potentially create massive administrability problems, rendering agency rules enforceable in one place and unenforceable in another.^[22]

Sounding a very different note to Gorsuch in her dissent from the Court’s February 21 grant of stay, Justice Sotomayor took aim at the government’s increasing willingness to seek — and the Court’s increasing willingness to grant — stays pending appeal that overrule lower court injunctions.^[23] The Court has historically recognized that such stays represent “extraordinary relief,” and should only be offered where a party can demonstrate a likelihood of irreparable harm.^[24] Recently, however, as Sotomayor’s dissenting opinion emphasized, the government has made an “unprecedented number of requests for emergency or extraordinary relief from the Justices.”^[25]

Indeed, over the first two and a half years of the Trump administration, the DOJ filed over 20 applications for stays at the Supreme Court, compared to eight total applications during the prior 16 years under Bush and Obama.^[26] And, as Sotomayor argued, the Court has recently granted these requests in a number of high-profile immigration cases, despite being forced “to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”^[27]

To hear and grant an application for stay, in Sotomayor’s view — particularly here, with the Seventh Circuit scheduled to hear oral argument on February 26, 2020 — frustrates the ability of lower courts to fully consider these questions and asks the Court to review them prematurely. An injunction preserving “a 20-year status quo” immigration policy in one state, on the other hand, hardly rises to the level of irreparable harm.^[28]

Whether the Justices will have occasion to consider these issues squarely anytime soon remains uncertain, but as federal courts continue to issue nationwide injunctions and as the DOJ continues to seek emergency stays, the Court may not be able to refrain from addressing these questions for long.

^[1] Department of Homeland Security v. New York, 140 S.Ct. 599 (mem.) (2020).

^[2] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (mem.) (Feb. 21, 2020).

^[3] Press Release, U.S. Citizenship and Immigration Services, USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions (Jan. 30, 2020), https://www.uscis.gov/news/news-releases/uscis-announces-public-charge-rule-implementation-following-supreme-court-stay-nationwide-injunctions.

^[4] Immigration and Nationality Act § 212(a)(4), 8 U.S.C. § 1182(a)(4)(A) (2012). In making that determination, the statute requires the consular officer or Attorney General to consider the applicant’s age, health, family status, assets, resources, financial status, education, and skills. §1182(a)(4)(B). The statute does not define “public charge.”

^[5] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41292, 41295 (Aug. 14, 2019) (codified at 28 C.F.R. Pts. 103, 212, 213, 214, 245, 248).

^[6] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28689 (Mar. 26, 1999).

^[7] Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[8] The rule “defines public benefits to include federal, state, or local cash benefit programs for income maintenance and certain health, nutrition, and housing programs that were previously excluded from public charge determinations, including non-emergency Medicaid for non-pregnant adults, the Supplemental Nutrition Assistance Program (SNAP), and several housing programs.” Changes to “Public Charge” Inadmissibility Rule: Implications for Health and Health Coverage, Kaiser Family Foundation (Aug. 12, 2019), https://www.kff.org/disparities-policy/fact-sheet/public-charge-policies-for-immigrants-implications-for-health-coverage/#endnote_link_417492-5.

^[9] Complaint at 112–114, Make the Road New York v. Cuccinelli, 2019 WL 5484638 (S.D.N.Y. 2019) (19 Civ. 7993 (GBD)).

^[10] Notably, Justice Gorsuch’s doctrinal opposition to the modern administrative state stands in some tension with his hostility to the nationwide injunction — the former position tending to empower federal judges and the latter tending to restrain them. For Gorsuch’s views on the administrative state, see, e.g., Kisor v. Wilkie, 139 S.Ct. 2400, 2446 n.114 (2019) (Gorsuch, J., concurring in judgment) (“To be sure, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we sometimes defer to an agency’s construction of a statute. But there are serious questions, too, about whether that doctrine comports with the APA and the Constitution.” (emphasis in original)).

^[11] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020). For more on the distinction between “nationwide” and “universal” injunctions, see Amanda Frost, In Defense of Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted)).

^[12] Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). For a response to Bray, see Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49 (2017).

^[13] Department of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring in the grant of stay) (When a district court orders “the government to take (or not take) some action with respect to those who are strangers to the suit, it is hard to see how the court could still be acting in the judicial role of resolving cases and controversies. Injunctions like these thus raise serious questions about the scope of courts’ equitable powers under Article III.”).

^[14] Id. at 601.

^[15] Id. at 600.

^[16] Id. at 601 (“Because plaintiffs generally are not bound by adverse decisions in cases to which they were not a party, there is a nearly boundless opportunity to shop for a friendly forum to secure a win nationwide.”).

^[17] Id. at 600.

^[18] Id. (“The traditional system of lower courts issuing interlocutory relief limited to the parties at hand . . . encourages multiple judges and multiple circuits to weigh in only after careful deliberation, a process that permits the airing of competing views that aids this Court’s own decisionmaking process.”).

^[19] Id.

^[20] Spencer E. Amdur & David Hausman, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. 49, 50 (2017) (“Indeed, the Supreme Court has recently suggested that sometimes ‘the equitable balance’ in a case will favor extending injunctive relief to ‘parties similarly situated to’ the plaintiffs” (citing Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (per curiam)).

^[21] Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1090–94 (2018).

^[22] Id. at 1098–1101.

^[23] Wolf v. Cook County, Illinois, No. 19A905, 2020 WL 858799 (Feb. 21, 2020) (Sotomayor, J., dissenting from grant of stay); see also Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3, 4 (2019) (Sotomayor, J., dissenting from grant of stay) (“Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”).

^[24] Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in chambers).

^[25] Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 124 (2018). Vladeck argues that the uptick in grants of stay can be attributed less to a rise in nationwide injunctions than to a shift in the Court’s conception of irreparable harm. “[A] majority of the Justices now appear to believe that the government suffers an irreparable injury militating in favor of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling — or the harm the statute or policy would cause if allowed to go into effect.” Id. at 126.

^[26] Id. at 125.

^[27] Wolf, 2020 WL 858799, at *3.

^[28] Id.

Taylor Larson, CLS ’21

The Third Circuit ruled last month that the Immigration and Nationality Act (INA) does not bar district courts from hearing non-removal claims from detained immigrants, priming a Supreme Court showdown of judicial reviewability against INA limitations on courts.

In E.O.H.C. v. DHS Secretary,[1] a detained Guatemalan father and daughter who traveled through Tijuana, Mexico to seek asylum in the United States challenged the government’s attempt to send them to Tijuana pending the appeal of their removal orders. Detainees usually remain in the U.S. throughout their removal proceedings,[2] but the government argued the recently enacted Migrant Protection Protocols (MPP, or “Remain in Mexico” policy) allows it to send the two from holding in a Pennsylvania detention center to Tijuana before the Board of Immigration Appeals decides their removal appeal.[3] The father and daughter argued in district court that, among other claims, sending them to Tijuana would endanger a minor (the daughter) in violation of the Flores settlement.[4]

The district court ruled it had no subject-matter jurisdiction to hear their claims.[5] It held § 1252(b)(9) of the INA blocks districts courts from hearing claims “arising from any action taken or proceeding brought to remove [aliens.]”[6] Appellants must bring their claims through all levels of immigration administrative rulings, and only then can appeal to a circuit Court of Appeals; federal district courts rarely have any role in the process.[7]

The Third Circuit Court of Appeals disagreed.[8] It found the INA only bars district courts from claims on final removal orders, not those unrelated to final removal. The circuit used a “now or never” principle to distinguish removal claims from non-removal ones. Any claim asking for relief that cannot be granted at the time of a final removal decision—relief that can only come when a plaintiff seeks it (now) or never at all—amounts to a now-or-never claim.[9] Such claims are not final removal claims, and therefore the INA does not block district courts from reviewing them.[10]

The Third Circuit found most of the appellants’ claims constituted now-or-never claims.[11] It held, for example, a court of appeals ruling that applying MPP to the appellants violated the Flores settlement, as it decides on their removal order, would provide no remedy: “[The appellants] allege that Tijuana is dangerous, so retuning them poses a grave danger. By the time there is a final order of removal to Guatemala . . . it will be too late to review or remedy their return to Mexico[.]”[12]

The ruling begs a Supreme Court decision to settle how far the INA limits judicial review. The Third Circuit relied on three-Justice pluralities in Supreme Court decisions, admitting the Court has left open what constitutes a removal action under § 1252(b)(9)[13] and inviting it to clarify. The Court has shown a recent willingness to address judicial review in immigration, such as deciding to hear Thuraissigiam v. DHS[14] this month, showing a return to 1252(b)(9) is more likely to happen now than never.

The Third Circuit sought to limit bans on judicial review of immigration agency decisions, and if the Supreme Court rules in a similar spirit, it could open the door to other challenges against the INA blocks on judicial review.

[1] E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., No. 19-2927, 2020 U.S. App. LEXIS 4628 (3d Cir. Feb. 13, 2020).

[2] Id. at 3.

[3] Id. at 4.

[4] Id. at 7.

[5] Id. at 10.

[6] 8 U.S.C. 1252(b)(9).

[7] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 1.

[8] Id. at 40.

[9] Id. at 10.

[10] Id. at 13.

[11] Id. at 19-20.

[12] Id. at 19.

[13] No. 19-2927, 2020 U.S. App. LEXIS 4628, at 13-14, “[T]he Supreme Court has left open whether detention pending an asylum ruling counts as an ‘action taken . . . to remove an alien from the United States.’ See Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (plurality opinion). In any event, the removal proceedings are ‘proceedings brought to remove’ appellants from the United States to Guatemala.”; id. at 16, “The Justices largely reprised these positions in Nielsen v. Preap, 139 S. Ct. 954 (2019) . . . A three-Justice plurality repeated the Jennings plurality’s view that § 1252(b)(9) does not bar challenges to detention rather than removal.”

[14] Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 427 (2019) (cert. granted). The case involves an asylum seeker suing to appeal his deportation order, gained through an allegedly flawed credible fear interview, in a federal court, against an INA ban on judicial review.

Cortnay Cymrot, CLS ’21

The Supreme Court’s decision to deny a petition to review a recent Ninth Circuit ruling—affirming a blind man’s right to access Domino’s Pizza website and mobile app—opens the door for a flood of litigation targeting website and app accessibility.

In Robles v. Domino’s Pizza, the plaintiff alleged that, despite his use of common screen-reading software, he was unable to order food on Domino’s website and mobile app. He brought suit under the Americans with Disabilities Act (ADA), which requires that businesses serving as “places of public accommodation”—including restaurants—remove barriers to access for the disabled. Circuit courts are split on whether—and in what circumstances—the ADA applies to websites and mobile apps.[1]

Domino’s argued that, as the ADA does not explicitly address accessibility with regard to mobile apps and the internet, it applies only to physical spaces—not websites. The Ninth Circuit disagreed, focusing on the nexus between Domino’s website/app and its physical location to find the ADA violated. As the online inaccessibility impeded blind customers from accessing products sold at Dominos’ physical locations, the pizza chain fell short of federal disability requirements.

In declining to revisit the Ninth Circuit’s decision, the Supreme Court has put on alert all places of public accommodation that operate websites or mobile apps (read: the vast majority of such businesses).  The ruling is expected to cause these businesses to improve their website and app accessibility, ensuring they’re optimized to enable screen-reading software to read and vocalize all content. [2]

Disability advocates regard the Ninth Circuit’s decision—and the Supreme Court’s subsequent denial of the appeal—as a major win. As mobile apps and the internet are an increasingly integral part of the modern economy, a contrary decision threatened to further isolate the visually impaired (and others relying on accessibility tools).[3]

Yet some fear the decision will have a perverse impact on accessibility.[4] Many within the retail and restaurant industries filed amicus briefs backing Domino’s, stressing the “impossibility of guessing what accessibility means in the online environment.” The threat of litigation could lead such businesses to reduce or eliminate their online presence, rather than fronting the costs necessary to ensure full accessibility.

Federal courts have already seen an increasing number of lawsuits addressing website accessibility. Over 2200 such suits were filed in federal courts in 2018—nearly tripling the prior year’s figure.[5] The Ninth Circuit’s decision will likely give rise to an escalation of this trend, emboldening plaintiffs to bring suit against inaccessible online businesses on a much larger scale.

[1] Alexis Kramer, Supreme Court Won’t Hear Domino’s Pizza Website Access Dispute, Bloomberg Law (Oct. 7, 2019), https://news.bloomberglaw.com/tech-and-telecom-law/supreme-court-wont-hear-dominos-pizza-website-access-dispute.

[2] Steven Melendez, Domino’s Pizza Was Just Dealt a Supreme Court Blow That Could Reshape the ADA in the Digital Era, Fast Company (Oct. 7, 2019), https://www.fastcompany.com/90414147/dominos-pizza-dealt-scotus-blow-that-could-affect-ada.

[3] Richard Supple, Domino’s Wants to Slice Away at the Americans With Disabilities Act (Sept. 30, 2019), https://slate.com/technology/2019/09/supreme-court-dominos-web-accessibility-visually-impaired.html.

[4] Stephanie Condon, Supreme Court Lets Blind Man Sue Domino’s Over Website Accessibility, ZDNet (Oct. 7, 2019), https://www.zdnet.com/article/supreme-court-lets-blind-man-sue-dominos-over-website-accessibility.

[5] Tucker Higgins, Supreme Court Hands Victory to Blind Man Who Sued Domino’s Over Site Accessibility, CNBC (Oct. 7, 2019), https://www.cnbc.com/2019/10/07/dominos-supreme-court.html.

Abigail Kertzman, CLS ’21

On November 15, the District Court for the Northern District of Florida struck down a Florida election law mandating that candidates in the same party as the current Governor be listed first on ballots.[1] The challengers to the law claimed that this rule gave the Governor’s party (currently in Florida, Republicans) an unfair and unconstitutional advantage.

To analyze whether the law was in fact unconstitutional, the court applied the Anderson/Burdick standard which weighs the character and magnitude of the burden on the plaintiffs’ First and Fourteenth Amendment rights against the legitimacy and necessity of the interests the State expresses to justify the burden.[2] Under this framework, the Court then considers the magnitude of the burden in order to determine which level of scrutiny to apply.[3]

In assessing the Plaintiff’s injury, the court explored the existence and potential impact of the primacy effect – the theory that voters are more likely to vote for the first candidate on a ballot. Judge Mark E. Walker relied heavily on the testimony of two Plaintiff’s experts who testified that scholarship on ballot ordering indicates that a candidate listed first likely receives an advantage of three[4] to five[5] percentage points. The court noted that this may seem like a “relatively small percentage taken in isolation, but the records of Florida’s elections which are before this Court demonstrate it is more than the margin of victory or defeat in a great many elections.”[6] Accordingly, the court held that the law was discriminatory because it gave candidates “a statistically significant advantage in that election, conferred by the primacy effect; and it does so on the explicit basis of the candidates’ party affiliation.”[7]

In weighing the State’s interests to justify this burden, the court considered Florida’s expressed interests of ballot uniformity and preventing voter confusion.[8] While the court did agree that the State had some legitimate interests, it found that the evidence linking the current ballot ordering scheme to those interests was weak.[9] The court decided that the burdens imposed by this scheme merited a level of review between rational basis and strict scrutiny. The court held that Florida’s law did not satisfy this level of review, opining in dicta that it would not even hold up to rational-basis review, and thus found that the law violated the First and Fourteenth Amendments. [10] As Judge Walker wrote, “[i]n our democracy there are no head starts.”[11]

Florida Secretary of State Laurel Lee says that the State will comply with the order to devise a new rule for ordering candidates while seeking to appeal.[12]

Multiple states, including New York, have similar laws that now may face similar challenges.[13] Earlier in the month, Democratic organizations filed such challenges in Texas, Arizona, and Georgia – three states which have a similar history of close elections results as Florida.[14] While the results of any potential appeal remain to be seen, Democrats may see Judge Walker’s opinion as an open door to continue challenging state ballot rules that can be perceived as giving any slight advantage to one party.

[1] Jacobson. v. Lee, No. 4:18cv262-MW/CAS (N.D. Fla. Nov. 15, 2019).

[2] Id. at 27.

[3] Id. at 60.

[4] Id. at 39.

[5] Id. at 33.

[6] Id. at 48.

[7] Id. at 49.

[8] Id. at 51.

[9] Id. at 60.

[10] Id. at 64.

[11] Id. at 26.

[12] Lori Rozsa, Federal judge declares Florida ballots unconstitutional, orders change, Washington Post (Nov. 15, 2019), https://www.washingtonpost.com/politics/federal-judge-declares-florida-ballots-unconstitutional-orders-change/2019/11/15/0b91dc0a-0810-11ea-924a-28d87132c7ec_story.html.

[13] N.Y. Elec. Law § 7-116 (McKinney).

[14] Colby Itkowitz, Democrats sue three battleground states over law that GOP candidates’ names be listed first on ballot, Washington Post (Nov 1, 2019), https://www.washingtonpost.com/politics/democrats-sue-three-battleground-states-over-law-that-gop-candidates-names-be-listed-first-on-ballot/2019/11/01/b62c8f44-fcc0-11e9-8906-ab6b60de9124_story.html.

Lydia Turnage, CLS ’21

On November 12, a magistrate judge in the Western District of Pennsylvania ruled that a group of wheelchair users from Pittsburgh could move forward with their proposed class action against the ride-share company Uber for alleged violations of the Americans with Disabilities Act (ADA) despite Uber’s attempt to force arbitration on the issue.[1] The plaintiffs in this case were able to successfully navigate around the arbitration clause included in Uber’s terms and conditions of service by virtue of the fact that none of the plaintiffs have ever actually used or downloaded the Uber app.[2] In fact, this lack of use is central to their claim: namely, that downloading and using the Uber app would be “futile,” due to company’s alleged failure to provide sufficient access to wheelchair accessible vehicles.[3]

The plaintiffs in the Pennsylvania suit, like plaintiffs in similar actions brought against Uber as well as its competitor Lyft,[4] brought their claims under Title III of the ADA. Specifically, the plaintiffs allege that Uber is in violation of Section 12182 of the Act, which prohibits private entities that own or operate public accommodations from discriminating on the basis of disability[5], as well as Section 12184, which prohibits disability discrimination in regards to specified public transportation services provided by private entities.[6] The plaintiffs argue that under the ADA, “individuals…who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles (“WAVs”) for transportation, are injured by [Uber’s] failure to provide any access to its on-demand ridesharing transportation service to disabled individuals requiring WAVs….”[7] While the Pennsylvania plaintiffs were successful in bypassing the arbitration clause and establishing Article III standing, they now face the much greater challenge of convincing the court that Uber is actually subject to ADA liability.

Recent federal court cases regarding Title III claims brought against Uber and Lyft highlight the challenges faced by plaintiffs seeking to enforce the ADA against ride-sharing apps and other companies operating in the sharing economy. These companies—including Uber, Lyft, and Airbnb—do not operate as actual service providers, but rather serve to facilitate transactions between users and independent providers in ways intended to “mak[e] the transaction easy, possible, and safe.”[8] While this business model is good for people looking for convenient app-based services or side hustles, it has proven detrimental to individuals with disabilities who face the double disadvantage of being denied both accessible services and ADA protections.

Title III of the ADA requires that businesses open to the public take reasonable steps to ensure that their goods and services are accessible to individuals with disabilities.[9] Importantly, however, the ADA doesn’t reach private homes or private cars, which makes it difficult to hold home- and rise-share companies liable for widespread barriers to accessibility.[10] There is also a significant circuit split on the question of whether the ADA applies to internet- or app-based companies without physical locations.[11] These issues have allowed app-based companies like Uber, Lyft, and Airbnb to argue that they are primarily technology companies that do not operate public accommodations within the meaning Title III.[12] Lyft even went so far as to argue in federal court earlier this year that “it is not in the transportation business.”[13] While some courts have allowed plaintiffs to survive motions to dismiss on the basis that they have stated plausible claims of ADA liability,[14] it is far from clear whether courts will actually take the step of defining these companies as public accommodations under Title III.

Companies like Uber, Lyft, and Airbnb have so far benefitted from the regulatory grey area created by the advent of the sharing economy, skirting ADA liability by relying on definitions for covered businesses that were written in a pre-internet world. Because individuals with disabilities make up a relatively small percentage of their users, discrimination is likely to continue without pressure from Congress or the courts. As ongoing litigation like the class action in Pennsylvania demonstrates, the time has come for the law to catch up with the realities of modern business practices if the ADA is to live up to its promise of equal access for all.

[1] O’Hanlon et al. v. Uber Technologies, Inc. et al., Civil Action No. 2:19-cv-00675, U.S. Dist. LEXIS 196029 (W.D. Pa. Nov. 12, 2019)

[2] Id. at *3.

[3] Id.

[4] Plaintiffs brought similar claims in Lowell v. Lyft, Inc., 352 F. Supp. 3d 248 (S.D.N.Y. Nov. 29, 2018), and Namisnak v. Uber Techs., 2018 U.S. Dist. LEXIS 221054 (Apr. 13 2018).

[5] 42 U.S.C. § 12182 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

[6] 42 U.S.C. § 12184 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”

[7] O’Hanlon at *2.

[8] Bernard Marr. The Sharing Economy: What It Is, Examples, And How Big Data, Platforms and Algorithms Fuel It. Forbes, (Oct. 21, 2016) https://www.forbes.com/sites/bernardmarr/2016/10/21/the-sharing-economy-what-it-is-examples-and-how-big-data-platforms-and-algorithms-fuel/#e4ce6d77c5af.

[9] 42 U.S.C. §12181 et. seq.

[10] Michael Byrne. New Study Quantifies Airbnb’s Widespread Exclusion of Disabled Guests. Vice, (Jun. 5, 2017) https://www.vice.com/en_us/article/8x9nx5/new-study-quantifies-airbnbs-widespread-exclusion-of-disabled-guests.

[11] See Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 at *14 (S.D.N.Y. Sec. 20, 2017).

[12] Helen Christophi. Jude Advances Men’s ADA Complaint Against Uber. Courthouse News Service, (Mar. 1, 2018) https://www.courthousenews.com/judge-advances-mens-ada-complaint-against-uber/; Melissa Locker. Lyft’s Response to ADA Lawsuit: Sorry, we’re “not in the transportation business.” FastCompany, (May 3, 2019) https://www.fastcompany.com/90343921/lyft-claims-its-not-a-transportation-company-to-avoid-ada-compliance.

[13] Locker, supra note 12.

[14] See Nat’l Fedn. of the Blind of Cal. v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (Apr. 17, 2015), Ramos v. Uber Tech., Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015)

David Berman, CLS ’21

Over the past few years, state and private plaintiffs alike brought lawsuits alleging that federal student loan servicers misled borrowers in violation of state consumer protection laws.[1] These lawsuits now confront the problem of federal preemption: the Higher Education Act of 1965 (“HEA”) forbids states from layering disclosure requirements on “[l]oans made, insured, or guaranteed pursuant to a program authorized by title VI of the Higher Education Act.”[2] Because student borrowers in these cases have taken loans originated or guaranteed by the Department of Education (“DOE”), preemption by the HEA looms.

For plaintiffs, the stakes of federal preemption are high. The HEA does not offer a private right of action,[3] and the DOE has resisted the Consumer Financial Protection Bureau’s efforts to hold student loan servicers accountable.[4] Foreclosing state law remedies would limit student borrowers’ ability to recover at all.[5]

Nelson v. Great Lakes Educational Loan Services, Inc.,[6] a recent ruling by the Seventh Circuit, provides some clarity and hope to student borrowers seeking a remedy under state law. The plaintiff, Nicole Nelson, claims that her student loan servicer, Great Lakes Educational Loan Services (“Great Lakes”), held itself out as employing student loan “experts,” and encouraged its struggling borrowers to reach out for assistance.[7] Nelson called her student loan servicer, but claims that she was steered towards the most profitable options for Great Lakes, to her detriment.[8] Nelson brought suit alleging that Great Lakes violated the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as Illinois common law.[9]

The Seventh Circuit found that the HEA does not expressly preempt Nelson’s state law claims because Great Lakes made inaccurate, voluntary statements. The Court distinguished between those statements compelled by the HEA, and those that are not. State law cannot interfere with HEA-required disclosure, so a case brought under a theory of fraudulent non-disclosure, implying any duty to provide additional information, is expressly preempted.[10] Nelson’s claims, however, relate to affirmative misrepresentation falling outside of the HEA’s requirements.[11] The Seventh Circuit panel agreed that § 1098g does not extend to misrepresentation in counseling, “where Great Lakes could have avoided liability under state law by remaining silent (or telling the truth) on certain topics.”[12] The Seventh Circuit also quickly dispensed with claims of conflict preemption[13] and field preemption,[14] before remanding for further proceedings.

Nelson has broad implications for future student loan litigation. Plaintiffs and amici cited the case in briefs to the Third Circuit[15] and oral arguments before the Eleventh Circuit,[16] both of which are actively considering whether the HEA preempts state law claims. A district court cited the case favorably in allowing private plaintiffs to proceed with state law claims.[17] Nelson is not a panacea for plaintiffs: the decision still preempts nondisclosure.[18] Even though the dust has yet to settle on this issue,[19] borrowers have reason to hope that they can hold student servicers accountable with state and common law claims.

[1] See, e.g., Complaint, New York v. Pa. Higher Educ. Assistance Agency, No. 19-cv-9155 (S.D.N.Y. Oct. 3, 2019); Complaint, Hyland v. Navient Corp., No. 17-2-01115-1 (S.D.N.Y. Oct. 3, 2018); Complaint, Mississippi v. Navient Corp., No. G2108-98203 (Miss. Ch. Ct., July 17, 2018); Complaint, California v. Navient Corp, No. CGC-18-567732, (Cal. Super. Ct., Jun. 29, 2018); Complaint, Massachusetts v. Pa. Higher Educ. Assistance Agency, No. 1784-CV-026282 (Ma. Sup. Ct. Feb. 28, 2018); Complaint, Pennsylvania v. Navient Corp., No. 17-CV-01814 (M.D. Pa. Oct. 5, 2017); Complaint, Illinois v. Navient Corp., No. 2017CH00761 (Ill. Cir. Ct. Jan. 18, 2017); Complaint, Washington v. Navient Corp., No. 17-2-01115-1 (Wash. Super. Ct. Jan. 18, 2017).

[2] 20 U.S.C. § 1098g.

[3] Thomas M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006).

[4] Eric Levitz, Trump’s Student Debt Policies are Mind-bogglingly Corrupt, N.Y. Mag. Intelligencer (Aug. 28, 2018), http://nymag.com/intelligencer/2018/08/cfpbs-student-loan-watchdog-resigns-in-protest-of-trump.html; Andrew Kreighbaum, Education Dept. Ends Partnership with CFPB, Inside Higher Ed (Sept. 5, 2017) https://www.insidehighered.com/news/2017/09/05/education-dept-rebukes-cfpb-overreach-kills-information-sharing-agreement.

[5] Brief for Ctr. for Responsible Lending and U.S. Pub. Interest Research Grp, Inc. as Amici Curae in Support of Appellant Nicole D. Nelson, Urging Reversal at 24, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. July 2, 2018) (No. 18-1531).

[6] 928 F.3d 639 (7th Cir. 2019).

[7] Complaint at 8, Nelson v. Great Lakes Educ. Loan Services, Inc., 928 F.3d 639 (7th Cir. Feb. 21, 2017) (No. 18-1531).

[8] Id. at 13. (claiming that alternative options “would have likely allowed Plaintiff a $0.00 or extremely low monthly payment. . .”)

[9] Id. at 2-3.

[10] Nelson, 928 F.3d at 649.

[11] Id.

[12] Id. at 650.

[13] Id. at 651.

[14] Id. at 652.

[15] Brief for Appellee at 40, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4013792 (3d Cir. Aug. 22, 2019); Brief for States of New York et al. as Amici Curae Supporting Appellee at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139130 (3d Cir. Aug. 29, 2019); Brief for Amicus Curae the Am. Fed. of Teachers in Support of Plaintiff-Appellee and Urging Affirmance at 22, Pennsylvania v. Navient Corp., (No. 19-2116), 2019 WL 4139129 (3d Cir. Aug. 29, 2019).

[16] Oral Argument at 2:04, Lawson-Ross v. Great Lakes Educ. Loan Services, Inc., No. 18-14490 (11th Cir. Sept. 10, 2019), http://www.ca11.uscourts.gov/oral-argument-recordings?title=&field_oar_case_name_value=lawson-ross&field_oral_argument_date_value%5Bvalue%5D%5Byear%5D=&field_oral_argument_date_value%5Bvalue%5D%5Bmonth%5D=.

[17] Hyland v. Navient Corp., No. 18cv9031 (DLC), 2019 WL 2918238 at *6 (S.D.N.Y. July 8, 2019).

[18] Adam Minsky, This Big Court Decision May Help Student Loan Borrowers, Forbes (Oct. 22, 2019), https://www.forbes.com/sites/adamminsky/2019/10/22/this-big-court-decision-may-help-student-loan-borrowers/#694149003188.

[19] Andrew Keshner, Student-Loan Servicer Can’t Use Federal Law to Avoid Lawsuit Over Alleged Bad Advice, MarketWatch (July 2, 2019), https://www.marketwatch.com/story/student-loan-servicer-cant-use-federal-law-to-avoid-lawsuit-over-alleged-bad-advice-2019-07-02 (“Professor David Rubenstein of the Washburn University School of Law said the ruling could bring the clash of state and federal laws on student loans one step closer to the Supreme Court.”)

Elie Peltz, CLS ’21

In recent years, searches of electronic devices have skyrocketed at the border, nearly quadrupling.[1] In response to litigation filed by the ACLU of Massachusetts and the Electronic Frontier Foundation (EFF), the United States District Court for the District of Massachusetts recently issued a ruling on November 12^th stating that arbitrary searches of international travelers’ devices at airports and U.S. ports of entry violate the Fourth Amendment.

The ACLU and EFF brought the lawsuit on behalf of eleven travelers whose electronic devices had been searched at border crossings and airports. During the court proceedings, an attorney for Customs and Border Protection (CBP) stated that the agency had searched 30,200 electronic devices in 2018, a 60% increase from the previous year. [2] It was also revealed that CBP and Immigration and Customs Enforcement (ICE) permitted searches of travelers’ devices for matters beyond the scope of customs and immigration enforcement.[3] The agency explained that searches can include downloading material from a laptop to looking at pictures on a camera memory card.[4]

Judge Denise Casper’s summary judgment ruling held that in order to comply with the Fourth Amendment, agents with ICE and CPB must show reasonable suspicion that a device includes illegal contraband before initiating a search.[5]  In addressing the privacy interests of travelers, Judge Casper underscored the heightened concern attached to searches of digital devices.  She wrote that “the potential level of intrusion from a search of a person’s electronic devices simply has no easy comparison to non-digital searches.”[6] The ruling relied on previous Supreme Court and circuit decisions that have made clear that older Fourth Amendment principles applied to non-digital contexts cannot be applied carte blanche to digital searches.[7] These decisions have established that digital devices contain a wealth of personal information not accessible through searches of most non-digital items.

Plaintiffs had sought a heightened privacy standard mandating warrants justified by probable cause. Instead, Casper opted to institute a lower reasonable suspicion standard given the government’s interest in “territorial integrity” and travelers’ reduced expectation of privacy when crossing the border. [8] Casper also ruled against a motion requesting that all information previously gathered from agency electronic device searches at the border be expunged. Granting the motion would be superfluous, asserted Casper, given that the government will have to demonstrate reasonable suspicion to legitimize use of that data in the future. [9]

Casper found that both “basic” and “advanced” searches conducted by the agency violate the Fourth Amendment, and ruled that both kinds of searches will require reasonable suspicion of illegal material moving forward.[10] “Advanced” searches, as defined by CPB, occur when an officer uses external equipment through a wired or wireless connection to an electronic device to review or a copy the contents on the device. All other searches are classified as “basic.”[11] Additionally, Casper’s decision applies to both U.S. persons as well as foreign visitors.[12]

Plaintiffs hailed the ruling as a “historic opinion.”[13] The government has until January to appeal Casper’s ruling.[14]

[1] Hugh Handeyside, et al., Federal Court Rules That Border Officers Can’t Arbitrarily Search Our Electronic Devices, ACLU, (November 13, 2019) https://www.aclu.org/news/immigrants-rights/federal-court-rules-that-border-patrol-cant-arbitrarily-search-our-electronic-devices/.

[2] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[3] Id.

[4] Id.

[5] Alasaad v. Nielsen, 2019 WL 5899371 (D. Mass. Nov. 12, 2019).

[6] Id. at *12.

[7] See e.g. Riley v. California, 573 U.S. 373, 393 (2014) (noting that cell phones are “minicomputers that also happen to have the capacity to be used as a telephone”); United States v. Cotterman, 709 F.3d 952, 964 (9th Cir. 2013).

[8] Alasaad, 2019 WL at *8.

[9] Zack Huffman, Judge Says Feds Need Reasons for Border Tech Searches, Courthouse News Service, (November 12, 2019) https://www.courthousenews.com/judge-says-feds-need-reasons-for-border-tech-searches/.

[10] Id. at *14.

[11] Id. at *2.

[12] Sophia Cope , et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[13] Sophia Cope, et al., Federal Judge Issues Historic Opinion for Digital Privacy at the Border, Electronic Frontier Foundation, (November 15, 2019) https://www.eff.org/deeplinks/2019/11/federal-judge-issues-historic-opinion-digital-privacy-border.

[14] Alaina Lancaster, ICE and CBP Searches Violate Fourth Amendment, Judge Rules, LAW.COM, (November 20, 2019) https://www.law.com/2019/11/20/whats-next-the-fourth-amendment-at-the-border-and-beyond-meeting-hackers-in-the-middle-what-to-watch-in-google-v-oracle/.

Connor Clerkin, CLS ’21

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

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

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

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

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

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

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

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

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

[6] Bork Memo at 6.

[7] Trump Brief at 9-10.

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

[9] 2 Farrand at 65.

[10] Id.

[11] Bork Memo at 6.

[12] 2 Farrand at 64.

[13] Id. at 65.

[15] 2 Farrand at 64.

Benjamin Apfel, CLS ’21

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

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

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

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

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

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

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

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

[1] Josh Russell, Top NY Court Won’t Weigh in on Tribe Leadership Fight, Courthouse News (Oct. 29, 2019), https://www.courthousenews.com/top-ny-court-wont-weigh-in-on-tribe-leadership-fight/.

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

[3] Id. at *1.

[4] Id.

[5] Id. at *2–3.

[6] Id. at *8.

[7] Id. at *5.

[8] Id. at *10.

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

[10] Id. at *11.

[11] Id.

[12] Id. at *18–9.

[13] Id.

[14] Id. at *22.

[15] Ryan Franklyn, Appeals court leaves internal leadership question up to the Cayuga Nation, Auburn Pub (Oct. 31, 2019), https://auburnpub.com/news/local/appeals-court-leaves-internal-leadership-question-up-to-the-cayuga/article_7b602eb5-2e73-58ea-95b2-c90300cc50f6.html.

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

Tené Johnson, CLS ’21

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

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

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

[1]  Lauren M. Johnson, The House Passes a Bill that Makes Animal Cruelty a Federal Felony, CNN (October 23, 2019), https://www.cnn.com/2019/10/23/politics/house-passes-pact-act-trnd/index.html [https://perma.cc/3DGD-54PQ]. Currently, federal law only prohibits animal fighting and the creation and sale of videos depicting certain acts of animal cruelty, through the Animal Crush Video Prohibition Act.

[2] Kelly Taylor Hayes, ‘A Significant Milestone’: House Unanimously Passes Bill to Make Animal Cruelty a Federal Felony, Fox 5 New York (October 25, 2019), https://www.fox5ny.com/news/a-significant-milestone-house-unanimously-passes-bill-to-make-animal-cruelty-a-federal-felony [https://perma.cc/39G9-UMBA].

[3] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), https://www.washingtonpost.com/science/2019/10/23/most-animal-cruelty-isnt-federal-crime-house-just-passed-bill-change-that/ [https://perma.cc/JC5E-CFWQ].

[4] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), https://www.washingtonpost.com/science/2019/10/23/most-animal-cruelty-isnt-federal-crime-house-just-passed-bill-change-that/ [https://perma.cc/JC5E-CFWQ].

[5] Neil Vigdor, House Unanimously Approves Bill to Make Animal Cruelty a Federal Offense, New York Times (October 23, 2019), https://www.nytimes.com/2019/10/23/us/politics/animal-cruelty-pact-act-bill.html [https://perma.cc/VV36-VNB5].

[6] Cole Higgins, The Senate Unanimously Passes a Bill that Makes Animal Cruelty a Federal Felony, CNN (November 6, 2019), https://www.cnn.com/2019/11/05/politics/senate-pact-act-animal-cruelty-felony/index.html [https://perma.cc/WZQ5-DDZR].

[7] 116th Congress, H.R. 724- Preventing Animal Cruelty and Torture Act, Congress.Gov (2019-2020), https://www.congress.gov/bill/116th-congress/house-bill/724 [https://perma.cc/3A29-ZHBR].

[8] Kelly Taylor Hayes, ‘A Significant Milestone’: House Unanimously Passes Bill to Make Animal Cruelty a Federal Felony, Fox 5 New York (October 25, 2019), https://www.fox5ny.com/news/a-significant-milestone-house-unanimously-passes-bill-to-make-animal-cruelty-a-federal-felony [https://perma.cc/39G9-UMBA].

[9] 116th Congress, H.R. 724- Preventing Animal Cruelty and Torture Act, Congress.Gov (2019-2020), https://www.congress.gov/bill/116th-congress/house-bill/724 [https://perma.cc/3A29-ZHBR].

[10] Id.

[11] Hannah Knowles, Most Animal Cruelty Isn’t a Federal Crime. The House Just Passed a Bill to Change That, Washington Post (October 23, 2019), https://www.washingtonpost.com/science/2019/10/23/most-animal-cruelty-isnt-federal-crime-house-just-passed-bill-change-that/ [https://perma.cc/JC5E-CFWQ].

[12] Animal Legal Defense Fund, Farmed Animals & The Law, Animal Legal Defense Fund (Accessed October 27, 2019), https://aldf.org/wp-content/uploads/2018/12/FmDRu3zPSGSwWmQPzuzl_2018-123-7784-Farmed-animals-and-the-law-Brochure_vF-1.pdf [https://perma.cc/5GMW-R25X].

Alak Mehta, CLS ’21

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

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

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

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

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

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

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

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

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

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

[5] Id. at *12.

[6] Id. at *1.

[7] Id. at *5-11.

[8] Id. at *8.

[9] The SALT deduction cap has, in fact, led to a decline in home values in several counties in the plaintiff states, according to a recent Moody’s study. See Jonathan D. Salant & Samantha Marcus, Your N.J. Home is Worth Less Than It Should Be, Thanks to the Trump Tax Law, NJ.com (Oct. 12, 2019), https://www.nj.com/politics/2019/10/your-nj-home-is-worth-less-than-it-should-be-thanks-to-the-trump-tax-law.html; Moody’s Analytics, Home Price Impact of Tax Cuts and Jobs Act of 2017, ProPublica (Oct. 2019), https://www.propublica.org/datastore/dataset/home-price-impact-of-tax-cuts-and-jobs-act-of-2017.

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

[11] Id. at *10.

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

[13] Id. at *12-14.

[14] Id. at *12-14.

[15] Id. at *12.

[16] Id. at *14-17.

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

[18] Id. at *14.

[19] Id. at *16.

[20] Id. at *16.

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

Sherwin Nam, CLS ’21

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[6] 262 Ga. 573 (1992).

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

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

[9] See Karl Bode, Cops Need a Warrant to Access Your Car’s Data, Court Rules, Vice: Motherboard (Oct. 22, 2019 8:00 AM), https://www.vice.com/en_us/article/ne8kxk/cops-need-a-warrant-to-access-your-cars-data-court-rules (quoting Nathan Wessler, ACLU Staff Attorney, and Guarav Laroia, Senior Policy Counsel at Free Press); Jeffrey Neuburger, Warrantless Retrieval of Electronic Automobile Data Held to Be Unreasonable Search – Ruling Points to Private Nature of Digital Data in Today’s World, Proskauer Rose LLP: New Media and Technology Law Blog (Oct. 21, 2019), https://newmedialaw.proskauer.com/2019/10/21/warrantless-retrieval-of-electronic-automobile-data-held-to-be-unreasonable-search-ruling-points-to-private-nature-of-digital-data-collected-in-todays-world/ (calling [Mobley] an “important follow-up to . . . Riley [v. California] and Carpenter”).

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

[11] For a digest of Carpenter and its place in Fourth Amendment jurisprudence, see Sean Lerner, Fourth Amendment Law and Third-Party Doctrine After Carpenter v. US, Columbia University School of Law Journal of Law & Social Problems: The Common Law (Nov. 16, 2018), https://jlsp.law.columbia.edu/2018/11/16/fourth-amendment-law-and-third-party-doctrine-after-carpenter-v-us/.

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

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

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

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

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

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