Judicial Overreach or a Necessary Check on Executive Power? The Implications of Trump v. Hawai’i and the Resulting Push Against Nationwide Injunctions

Postscript | Immigration Law
Judicial Overreach or a Necessary Check on Executive Power? The Implications of Trump v. Hawai’i and the Resulting Push Against Nationwide Injunctions
by Christine Cheung*

Vol. 93, Postscript (April 2020)
93 S. Cal. L. Rev. Postscript 89 (2020)

Keywords: Immigration Law, Executive Orders, 

 

INTRODUCTION

Over the past three years, President Donald Trump has issued several executive orders that led people to turn to the courts for injunctive relief.[1] The current administration’s immigration policies, especially, have been the source of a number of such cases.[2] The primary example stemmed from Executive Order 13,769, which suspended the ability of millions of people from “countries of particular concern” to enter the United States.[3] Hundreds filed suit in opposition of this executive order;[4] however, only one needed to be successful in order to prevent implementation of the policy on a nationwide scale. This is because the injunctions that the courts issued not only applied to the named plaintiffs, but to everyone.[5] In Washington v. Trump, the plaintiffs successfully obtained a nationwide injunction against Executive Order 13,769.[6]

The Trump administration responded by issuing new iterations of the Muslim ban,” the policy’s colloquial name.[7] In September 2017, President Trump issued Proclamation 9645, resuspending the entry of the nationals of eight countries into the country.[8] In June 2018, the Supreme Court examined the validity of the order in Trump v. Hawaii.[9]

While this was happening, the House Judiciary Committee identified the issue of nationwide injunctions as one that it hoped to deal with in the upcoming term.[10] The Committee found that nationwide injunctions are problematic and introduced the Injunctive Authority Clarification Act of 2018 on September 7, 2018, which would prohibit such injunctions.[11] The House Judiciary Committee approved the bill on September 13, 2018,[12] but the bill failed to move to the next stage of the legislative process, avoiding a vote by the full House of Representatives.[13]

First, this Note will explain the constitutionality and legal scope of the executive order as a political tool of the president. It will then discuss the rise of nationwide injunctions and the judicial system’s changing attitudes toward such injunctions as a viable judicial tool. Next, it will explain the series of executive orders passed by President Donald Trumpwhich together constituted the Muslim banand the nationwide injunctions issued by district courts in response to these orders, culminating in the Trump v. Hawaii Supreme Court decision. Finally, it will discuss the legislation for which Trump v. Hawaii paved the way: The Injunctive Authority Clarification Act of 2018, which sought to prohibit courts from issuing nationwide injunctions.

Ultimately, this Note will argue that Trump v. Hawaii was decided correctly, but that the consequences of the decision as they relate to expanding executive power and the case’s procedural history have serious implications for the future of judicial lawmaking. This Note will critically analyze arguments on both sides of the issue of whether nationwide injunctions should be prohibited. Additionally, this Note argues that while nationwide injunctions have positive effects, those effects are outweighed by the incentives they create for forum shopping and the judicial territorial clashes they create that undermine judicial decisionmaking. Finally, this Note argues that prohibiting nationwide injunctions entirely, as the Injunctive Authority Clarification Act would have done, is not the proper solution. Instead, nationwide injunctions should be limited in some way, such as allowing only district or circuit-wide injunctions.

 

I.  BACKGROUND

A.  The Constitutionality and Scope of Executive Orders

Article II of the United States Constitution vests the power to execute the laws of the nation in the office of the President.[14] From the obligation to faithfully execute the laws[15] arose the legitimacy of the executive order, “a type of written instruction that presidents use to work their will through the executive branch of government.[16] Executive orders direct the executive branch how to implement laws, and they “may have the force and effect of law only if the presidential action is based on power vested in the President by the U.S. Constitution or delegated to the President by Congress.”[17] However, the power to issue executive orders is not explicit in the Constitution; therefore, presidential “authority for the execution and implementation of these written instruments stems from implied constitutional and statutory authority.[18]

Although the president has Article II authority to issue executive orders directing the executive branch on how it should implement the laws, this authority is limited: executive orders may be reviewed by the courts,[19] revoked or modified by future presidents,[20] and  repealed or defunded by Congress.[21] This Note will focus on the implications of the judiciary being able to limit executive orders through the use of nationwide injunctions.

B.  The Rise of Nationwide Injunctions

Once a court holds that an executive order or other piece of legislation is invalid, the court determines what the appropriate remedy should be.[22] One option a court has is to issue a nationwide injunction, which “controls the federal defendant’s conduct against everyone, not just against the plaintiff.”[23] An argument exists that the descriptor “nationwide” to describe injunctions of this sort is improper[24] because the term implies that the most relevant characteristic of the injunction is that it applies everywhere in the country; however, the most significant and controversial part of nationwide injunctions is not that they apply everywhere, but instead that “they regulate the defendant’s conduct as to everyone in the countryeven if they were not party to the suit.[25] Howard Wasserman prefers to call them “universal” injunctions, since “they prohibit government officials from enforcing the challenged laws, regulations, and policies against the universe of persons who might be subject to enforcement, regardless of whether they were parties to the lawsuit producing the injunction.”[26] Ultimately, nationwide injunctions, by any name, refer to the scope of who could be protected from the federal action at issue, not where in the world those people will be protected.[27]

The first example of a court accepting and implementing a nationwide injunction as a viable remedy was in Wirtz v. Baldor Electric Co. in 1963.[28] Rather than citing any precedent exemplifying and justifying the use of a nationwide injunction, the D.C. Circuit court in Wirtz offered four reasons that it would allow such an injunction: consistency, fairness, statutory language, and constitutionality.[29] Courts today continue to invoke these fundamental reasons when arguing in support of a nationwide injunction.[30] After Wirtz, national injunctions slowly became a tool that more courts utilized, though they were not immediately popular.[31] At some point, however, a change in mindset occurred, and judges began to think of injunctions as an offensive measure, a means to challenge the validity of a statute.[32]

Contemporarily, courts “strike down” statutes; “instead of seeing courts as preventing or remedying a specific wrong to a person and only incidentally determining the constitutionality of a law, now many see courts as determining the constitutionality of a law and only incidentally preventing or remedying a specific wrong to a person.”[33] This newer mindset about the role of courts in examining issues strengthens the basis for nationwide injunctions.[34] Striking down a statute as facially unconstitutional means that the court likely should not apply the statute to anyone; thus, the equitable remedy would be a nationwide injunction.[35]

C.  Executive Order 13,780 and Proclamation 9645: “The Muslim Ban”

On January 27, 2017, President Donald Trump issued Executive Order 13,769, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” immediately suspending the ability of millions of people from “countries of particular concern” to enter the United States.[36] Primarily, the executive order required the executive branch to suspend the entry of all refugees for 120 days while it implemented a new system that would tighten the vetting process, prohibit nationals from seven majorityMuslim countries from entering the country for ninety days, and cease the flow of refugees from Syria “until further notice.”[37] The Muslim ban left hundreds stranded in their travels and “led to the cancellation of 60,000 valid visas.”[38] Over the next few days, protests occurred, attorneys flooded airports across the country to give free legal help to travelers detained under the executive order, and the ACLU, amongst other organizations, filed suit challenging the executive order.[39]

Less than one month later, in Washington v. Trump, the plaintiffs were successful in preventing the implementation of Executive Order 13,769, as the court issued a temporary restraining order against the implementation of the policy.[40] The temporary restraining order was against the Executive Order “on a nationwide basis,” invalidating the order across the country.[41] In response, the Trump administration issued new, slightly modified iterations of the Muslim ban.[42] Executive Order 13,780 revoked Executive Order 13,769 and effectively replaced it.[43]

However, on March 15, 2017, in Hawaii v. Trump, a district court in Hawai’i granted an injunction in the form of a temporary restraining order before the new executive order took effect.[44] Specifically, the order clarifie[d] and narrow[ed] the scope of Executive action regarding immigration, extinguishe[d] the need for emergent consideration, and eliminate[d] the potential constitutional concerns identified by the Ninth Circuit.”[45] For their part, the plaintiffs asserted claims on both constitutional and statutory grounds, contending that the legal violations the executive order posed would cause them irreparable injury.[46] The court agreed, granting the temporary restraining order.[47] Citing Klein v. City of San Clemente,[48] the Court held that because a violation of the Establishment Clause qualifies as a First Amendment violation and the plaintiffs were held likely to succeed on the merits of the claim, the requirement that the plaintiffs suffer irreparable injury without a temporary restraining order was satisfied.[49]

Thus, on September 24, 2017, President Trump issued the third version of the Executive Order restricting travel in the form of Proclamation 9645.[50] The Proclamation suspended the ability of the nationals of eight countries—six of which were majorityMuslim countries—to enter the United States.[51] Like the previous executive order, this proclamation included exemptions, including lawful permanent residents of the United States, and a system for case-by-case waivers.[52] This Proclamation is what the Supreme Court examined in Trump v. Hawai’i.[53]

D.  Trump v. Hawaii

On June 26, 2018, the Supreme Court held that the President was within the scope of his executive power when issuing Proclamation No. 9645, and the proclamation did not violate the Immigration and Nationality Act (INA) or the Establishment Clause.[54] First, the Court held that § 1182(f) of the INA granted the President broad discretion to suspend the entry of aliens into the United States;[55] therefore, the Proclamation did not exceed the power granted to the President under § 1182(f).[56] Second, the Court rejected the plaintiff’s argument that the Proclamation violated § 1152(a)(1)(A), which prohibits discrimination in the allocation of immigrant visas based on nationality and other traits.[57]

Next, the Court held that the Plaintiffs did not demonstrate a likelihood of success on their claim that the Proclamation violated the Establishment Clause.[58] Because the admission and exclusion of nationals is “a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control,” the Court reviewed the Proclamation under rational basis review.[59] However, the Court took the review a step further, looking “behind the face of the Proclamation to the extent of applying rational basis review” to determine whether the policy “is plausibly related to the Government’s stated objective.[60] Thus, the Court upheld the policy because it determined that it was possible to reasonably understand that the policy was based on the valid justification of national security and a desire to improve vetting processes, rather than the unconstitutional justification of discrimination against Muslims.[61] Thus, although the plaintiffs sought for the Court to further analyze the effectiveness of the Proclamation, the Court held that it “cannot substitute its own assessment for the Executive’s predictive judgments on such matters.”[62]

E.  The Injunctive Authority Clarification Act

On September 7, 2018, the House Judiciary Committee drafted the Injunctive Authority Clarification Act of 2018.[63] The goal was to preempt the problematic situation where “opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else.”[64] Therefore, the Act sought to prohibit nationwide injunctions by limiting the effects of an injunction to only parties listed in the case.[65]

Beginning in June 2017, the House Judiciary Committee committed to addressing the issue of nationwide injunctions.[66] In November 2017, the Subcommittee on Courts, Intellectual Property and the Internet held a hearing to discuss “The Role and Impact of Nationwide Injunctions by District Courts.”[67] This hearing culminated in the proposal of the Injunctive Authority Clarification Act of 2018, which would prohibit any court from issuing “an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.”[68] It was ordered to be reported to the House of Representatives, but it failed to move to the next stage of the legislative process, a vote by the full House of Representatives.[69]

 

II.  ARGUMENT

A.  Implications of Trump v. Hawai’i

The Supreme Court in Trump v. Hawai’i gave deference to executive action, despite the lower courts lack of hesitation in granting injunctions against the Muslim ban orders. Because Congress gave the President the exclusive right to regulate who enters the United States and for how long in the INA, and because the Court determined that Congress had vested that right broadly rather than narrowly, the Supreme Court reviewed the President’s actions under rational basis review.[70] Thus, the President needed only some rational, constitutional basis for the policy in order for the policy to be upheld. Consequently, deciding to apply rational basis review allowed for an expansion of presidential power and upheld a policy that seems to exemplify executive aggrandizement, although the Court could have restricted presidential power by finding that Congress delegated more narrow authority to the President under the INA.

There are benefits to restricting executive power as the Court declined to do in Trump v. Hawai’i (interestingly, the Court retained the right to make such restrictions in future cases). First, executive aggrandizement circumvents and almost flaunts the checks and balances system on which the United States government was founded. The ability of each branch to check the power of the other branch is essential to maintaining a federal democratic system. The Framers of the Constitution were especially concerned with maintaining a check on executive power because they feared that by vesting the executive power in a single person, the President, that person could aggrandize power and become a monarch or dictator.[71] Thus, generally speaking, both Congress and the judiciary were structured to be able to prevent the executive from accumulating too much power. That being said, the development of the administrative state has already pushed the Office of the President far beyond the scope of powers it was originally intended to have under the Constitution. Between executive orders, which essentially allow the President to legislate by directing the executive branch to interpret and implement laws, and offices under the President that facilitate unilateral bureaucratic control by the President, such as the White House Office of Presidential Personnel and the Office of Management and Budget, the President has significantly more power than other branches of government.[72] Although the legislative branch was designed to have more authority, deadlock has reduced that authority as increasing polarization in the United States has made it appear useless in the eyes of the public, confirmed by its shutting down three times the past five years.[73]

One could argue that there is no point in trying to prevent further executive aggrandizement; however, allowing more executive power could further derail the system and lead the United States down a more treacherous path toward despotism and demagoguery.[74] Additionally, maintaining a precedent that allows the President such broad discretion under rational basis review could result in the courts being unable to stop unconstitutional executive action before irreparable harm is done. The requirements to qualify for a preliminary injunction inherently limit injunctions to applying solely in instances where the court is seeking to prevent irreparable harm.[75] Allowing an expansion of executive power that would be above or outside the scope of what the courts can protect with preliminary injunctions would be to, at least temporarily, eliminate the only check on presidential power that can be immediately implemented. Outside of the preliminary injunction, the judicial branch must wait until a case has been fully litigated before granting a permanent injunction. Congress must either go through the entire legislative process to override presidential action, likely necessitating a two-thirds majority to override a presidential veto or the case must be so serious that the House of Representatives brings impeachment charges against the President. None of these options offer the same level of immediate relief that a court can offer through a preliminary injunction. Ultimately, several valid policy considerations suggest that the Supreme Court should not give such deference to executive action that it allows for further executive aggrandizement.

Alternatively, there are benefits to expanding executive power as the Court opted to do with its decision in Trump v. Hawai’i. For one, Congress is deadlocked and has become continually less efficient due to polarization. Thus, prioritizing efficiency suggests that concentrating more power in the executive branch, which does not face as much partisanship in its implementation of policy as Congress does, would allow for more effectual adoption of federal policy. Also, executive orders are within the scope of the powers vested to the president under the Constitution; therefore, courts should give such orders deference when considering their constitutionality and application in the context of preliminary injunctions. When the president is acting with the authority of the Constitution and of Congress, as was the situation in Trump v. Hawai’i, it is valid for him to have the most discretion and receive a rational basis review. The purpose of judicial review is not for judges to make independent, politicized determinations of whether they agree with the executive action, but to make impartial decisions about the validity of the executive action with reference to the Constitution and current laws. Similarly, despite the changes that have increased executive authority through the reorganization of the executive branch into the administrative state, the checks and balances system is likely strong enough to prevent executive aggrandizement from leading to despotism. While this might seem idealistic, the United States has the oldest written constitution still in use today.[76] From 1789, through two World Wars, the Great Depression, the Cold War, and more, the structural integrity of the U.S. government has remained intact, suggesting that the system is capable of enduring more than modern skeptics might assume. Because power is separated amongst the branches and each branch can exert checks on the others, it seems that allowing deference to executive action is not something that would cause the entire system to crumble.

Finally, allowing executive orders to expand presidential authority allows the President to secure the first-mover advantage in the struggle over policy. Federal policy has two avenues through which it can be implemented: the President, or Congress. Whichever institution acts first retains certain advantages, such as framing the major issues of a policy, establishing its timeline, and being able to proactively determine the policy’s finished product.[77] Alternatively, second-movers must be defensive and reactive to the firstmover’s policy and strategy decisions. When Congress has first-mover status, presidents must accept that legislation may never emerge from the Congressional process, that it may emerge in a form that is significantly different from the president’s expectations, and that it may emerge in a condition that is unacceptable, forcing the president to veto his own idea.[78] On the other hand, when the president has the first-mover advantage, Congress becomes the second-mover and all the features of the dual-channel, three-stage, veto system work to the president’s advantage.[79] Between 1973 and 1997, there were over 1,000 executive orders issued, and Congress only made thirty-seven attempts to countermand an executive order; notably, only  three of these attempts were ultimately successful.[80] Thus, it might be beneficial from a policy perspective that the Court in Trump v. Hawai’i allowed the president to retain the first-mover advantage, because that allows for more policy to be effectively implemented in the future.

As a whole, the Supreme Court likely decided Trump v. Hawai’i correctly based on precedent and the specific language of the INA, regardless of its effect on executive power. However, executive aggrandizement is an overall negative phenomenon because the president is able to obtain all of the positive effects of legislating through executive order and maintain the first-mover advantage. Because concerns exist about the state of despotism in the United States and the presidency has continued to accumulate power through the administrative state, the safest option to preserve separation of powers is to restrict executive power and prevent further executive aggrandizement.

Aside from the impact that Trump v. Hawai’i’s decision had on executive power, the case’s procedural history has significant implications for the future of litigation against government policy. The case demonstrated that obtaining a nationwide injunction is an extremely efficient way for plaintiffs suing the government to reach the Supreme Court. Thus, it is possible, if not probable, that future litigants may seek nationwide injunctions as their remedies if they hope to have a law or policy declared unconstitutional by the Supreme Court, regardless of whether or not a nationwide injunction is an appropriate remedy. This Note will discuss the positive and negative consequences of nationwide injunctions further in the following section, but Trump v. Hawai’i illuminated an extremely efficient path to the Supreme Court.

B.  Consequences of Nationwide Injunctions

Because nationwide injunctions have the ability to impact anyone in the country who would be subject to enforcement of a law or executive order, regardless of whether they are a party to the case, they are an exceptionally powerful tool at the court’s disposal. Due to their unique ability to put a stop to executive action faster than any other check on presidential power, nationwide injunctions have received praise and criticism from across the political spectrum, depending on who holds power. Thus, the ability of district courts to enact nationwide preliminary injunctions have both positive and negative consequences.

Preliminary nationwide injunctions yield several positive results. First, they can prevent irreparable harm across the country for all people who face the danger of having an unconstitutional policy enforced against them but who might not be a party before the court. Also, nationwide injunctions increase efficiency. When people all over the United States would sue over the same issue, as they did with President Trump’s travel ban executive orders, it saves both time and money to allow one court to respond on behalf of them all. Similarly, such a process allows for nationwide uniformity of application, which is desirable in the law because all those who are similarly situated should have the same outcome under the law. Furthermore, nationwide injunctions allow for complete relief to plaintiffs because they ensure that the plaintiffs will not be negatively impacted by an unlawful policy directly or indirectly.[81] This is especially true in the case of institutional plaintiffs, for whom a plaintiff-specific injunction would not provide complete relief because they interact with others who may be burdened by the administrative law from which the institutional plaintiff should have injunctive relief.[82] Finally, nationwide injunctions can be a useful tool to combat the imperial presidency and prevent further executive aggrandizement, as discussed above, especially as Congress becomes too deadlocked to advance much policy.

On the other hand, nationwide preliminary injunctions also yield several negative consequences. First, allowing nationwide injunctions incentivizes forum shopping, which undermines judicial decisionmaking. One judge upholding a challenged law has no effect on other potential plaintiffs, which incentivizes other plaintiffs to, as Samuel Bray phrases it, “shop ‘til the statute drops,”[83] since if one district judge invalidates the law, the injunction controls the defendant’s actions with respect to everyone. Thus, one judge can undermine the opinions of all others by invalidating a law that has been upheld elsewhere through the use of a nationwide injunction. This makes litigation unpredictable. Additionally, nationwide injunctions undermine the need for Federal Rules of Civil Procedure Rule 23(b)(2), which allows for injunctive relief while maintaining certain due process protections, because nationwide injunctions can allow plaintiffs to get the same relief in an individual suit as they would as part of a class action.[84] However, the requirements to obtain class action status are not always easily met because of heightened commonality requirements,[85] so it could be necessary to preserve the nationwide injunction when many people would be unconstitutionally affected by a law or policy but do not have the time or immediate ability obtain class certification.

At the same time, allowing for preliminary nationwide injunctions increases the possibility of conflicting injunctions and territorial clashes between courts. As stated, one court may rule a law or policy valid, only to be “overruled” by a court in a different district issuing a nationwide injunction. President Trump’s executive order instituting the travel ban exemplifies this problem.[86] As Representative Goodlatte put it in his introduction of the Injunctive Authority Clarification Act, “opponents of government action can seek a preliminary injunction and lose in 93 of the 94 judicial districts, win one injunction in the 94th, and through that injunction obtain a stay of government action nationwide despite it being upheld everywhere else.”[87] Such a system seems inherently illogical, even if uniformity in the law is desirable. Also, nationwide preliminary injunctions prematurely freeze the law: short-term differences in lower courts allow for issues of law to percolate through various judges, which means a difficult legal question is more likely to be answered correctly . . . than if it is answered finally by the first panel to consider it.”[88] Thus, there is value to reducing the number of nationwide injunctions for purposes of having a complete analysis of the law by multiple judges.

Ultimately, while nationwide injunctions allow for uniformity in the law, increase efficiency, and can be a tool to combat the imperial presidency, their implications for incentivizing forum shopping and creating territorial clashes where district judges have the power to overrule one another undermines judicial decisionmaking. Therefore, injunctions should generally be limited to the parties before the court, and nationwide injunctions should be used sparingly and only in circumstances in which a policy would certainly cause irreparable harm to all those impacted by it.

C.  Implications of Eliminating Nationwide Injunctions Entirely

While the Injunctive Authority Clarification Act may have died on the floor, there is nothing preventing Congress from proposing a bill in the future that prohibits nationwide injunctions. Such a bill would have the potential to dramatically alter the current abilities that courts have with regard to the scope of nationwide injunctions. The judiciary has used nationwide injunctions to halt policy implemented by both ends of the political spectrum. As such, it is curious that judges who have been appointed, rather than elected, and who possess life tenure have the ability to alter and eliminate policy so completely. Judges are not accountable to the people, yet they have the ability to strike down policy created by government officers who are accountable to the people through elections. Thus, there are strong arguments that prohibiting nationwide injunctions would be a positive restriction on judicial power.

First, courts have become too powerful, even without nationwide injunctions. The United States allows the Supreme Court, and even lower courts, to decide controversial issues that the government has been unable to pass legislatively due to congressional deadlock, thereby creating law while circumventing the legislative process. An early example is in Brown v. Board of Education[89]: Congress was unable or unwilling to pass legislation eliminating school segregation, so people turned to the courts to remedy the injustice. By declaring school segregation unconstitutional, the Supreme Court effectively acted as a legislative body.[90] Examples of such legislation by the courts have continued through today—Reed v. Reed extended 14th Amendment equal protection rights to women,[91] Roe v. Wade restricted states’ ability to legislate against abortion,[92] and Obergefell v. Hodges legalized gay marriage,[93] to name a few. As the courts gained power unchecked by the other branches, “using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.”[94] Judges are not accountable to democracy, and they were not appointed to legislate: they were appointed to rule on the law.

Furthermore, the minority party at any given time should not be able to bypass the legislative process by finding a sympathetic judge who will grant a nationwide injunction. Logically, it makes no sense for courts to be able to enact a nationwide injunction when other courts may rule on—and in many cases, have ruled on—the same law differently. The fact that such territorial clashes happen implies that the law applies to different plaintiffs differently; therefore, no single court should assume that because a law should not apply to the parties before it, the law necessarily should not apply to everyone. Class action lawsuits already exist as a solution for parties who are similarly situated to be able to sue in one legal action to reduce total cost on each plaintiff and to increase efficiency. Thus, prohibiting nationwide injunctions would be a positive step toward reigning courts back toward their original purpose: considering the facts of the plaintiffs before the court and ruling on the law as it applies only to those plaintiffs.

However, in the face of congressional deadlock, nationwide injunctions may be one of the only effective tools available to combat executive aggrandizement. Eliminating nationwide injunctions would make it more difficult to take immediate action to stop an executive order once it has been issued. Also, when a court issues a nationwide injunction, it is not usually because the court finds that the law should not be enforced against the particular plaintiffs; it is because the court finds the law itself to be unconstitutional. Ever since Marbury v. Madison, courts have retained the ability to invalidate laws based on their unconstitutionality. Nationwide injunctions merely extend that power. Furthermore, while judges might not be accountable in the same way that the president or legislators are, that is intentional. Judges have life tenure so that they are not swayed by the passions of the people. They purportedly apply the law rationally and as they believe the Constitution directs, not how they think voters want them to interpret it so that they can be reelected. Thus, judges are in a unique position to be more trustworthy in their decisions.

Also, eliminating the judiciary’s ability to issue nationwide injunctions would reduce efficiency. When hundreds or thousands of people across the country need to file suit against a policy would not have the time or ability to join together in a class action lawsuit, like in response to President Trump’s Executive Order restricting entry on several majority-Muslim countries, it is more economically and temporally efficient to allow one court to respond on behalf of them all. Additionally, eliminating nationwide injunctions as a tool for the court increases the risk of a lack of uniformity in a law’s application, as some districts allow the law or policy and others do not. Uniformity of application is important because all people should be treated equally before the law, regardless of where in the country they live.

Ultimately, eliminating nationwide injunctions would probably be more harmful than it would be beneficial. Nationwide injunctions are an extremely useful tool against executive aggrandizement and an efficient method for protecting individual rights in the face of congressional deadlock. That being said, there are significant drawbacks to allowing nationwide injunctions, so they should be used in moderation and should be limited in some way, rather than be completely abolished.

D.  Other Possible Solutions

Since nationwide injunctions have serious drawbacks but are too useful to be abolished completely, they should be limited. One solution is only allowing district- or circuit-wide injunctions. This would reduce inefficiency because the injunction could cover more than just the parties before the court, without being so overarching as to cover the entire country, where plaintiffs may be affected differently. It would also reduce forum shopping, as the maximum area the injunction could cover would either be the district or the circuit. Circuit-wide injunctions could reduce territorial clashes, as circuits could give deference to one another and rule the same way. This, in turn, would make litigation less unpredictable than if judges could invalidate the decisions of other judges by granting an injunction against a law that those judges had upheld. Additionally, if there were clashes between circuits after the issuance or denial of a circuit-wide injunction, that could increase the likelihood that the case reached the Supreme Court, even if it did not involve an executive order. Both district- and circuit-wide injunctions would increase efficiency, since fewer affected people would need to file suit. Thus, geographically limited injunctions would reduce the drawbacks of judicial overreach associated with nationwide injunctions, while still allowing for some of the primary benefits of nationwide injunctions. Also, in the context of actions like President Trump’s executive orders restricting travel, a more limited injunction such as a district or circuit-wide injunction would still effectively make the policy toothless, since travelers from prohibited countries could fly into a state that had passed an injunction against the policy and then would be free to travel elsewhere within the United States. Thus, limiting nationwide injunctions to a smaller geographic scale would not fundamentally change what courts are able to do with regard to checking executive power.

Another possible solution to limit nationwide injunctions is prohibiting nationwide injunctions at the preliminary phase, only allowing them after the case has been decided on the merits. This type of a solution would retain the cost efficiency and uniformity benefits that nationwide injunctions offer, since the injunction would still apply nationally. Also, a judge’s decision to grant an injunction would be based on substantially more information if granted once the case has been decided on the merits than if it were granted as a preliminary injunction. However, this solution likely does not sufficiently address the concerns about judicial overreach.

 

CONCLUSION

Ultimately, both Trump v. Hawai’i and the possibility that Congress may pass a bill like the Injunctive Authority Act of 2018 have significant implications on the roles and relationship between the executive and judicial branches. The Supreme Court likely decided Trump v. Hawai’i correctly based on precedent and the specific language of the INA, regardless of its effect on executive power. However, the Court’s decision expands the scope of presidential authority. Executive aggrandizement is problematic because the president can obtain the positive effects of legislating through executive order while maintaining the first-mover advantage compared to Congress, which may be a slippery slope. The case is also relevant for the impact that its procedural history may have on future litigants—those suing the government may see the effective trajectory from nationwide injunction to an appearance before the Supreme Court and seek such an injunction as their remedy, regardless of whether such an injunction is appropriate.

In considering whether nationwide injunctions are ever an appropriate remedy, this Note contemplated both the positive and negative consequences that such injunctions have in terms of efficiency, effects on plaintiffs’ behavior, and the impact on judicial decisionmaking. As a whole, nationwide injunctions are a useful tool that should be used in extreme moderation because of their negative consequences. One possible solution to the problem of nationwide injunctions is limiting the geographic scope of injunctions to the district or circuit involved. Alternatively, it may be more efficient to prohibit nationwide injunctions at the preliminary phase, only allowing nationwide injunctions after the case has been decided on the merits, thereby retaining the cost efficiency and uniformity benefits that such injunctions offer while also requiring judges to base their decisions on substantially more facts.

Finally, a law such as the Injunctive Authority Clarification Act of 2018 would have serious ramifications. Because it would prohibit all nationwide injunctions, it would effectively eliminate concerns regarding judicial overreach and judicial legislating that critics of nationwide injunctions commonly voice, and it would minimize forum shopping and the problem of one district judge invalidating the decisions of other district judges by overturning a law or policy other judges had upheld. However, eliminating nationwide injunctions would reduce temporal and economic efficiency in situations where many people across the country are similarly affected by an issue to which they need an immediate solution. Furthermore, eliminating nationwide injunctions expands the chances that the law will not be applied consistently.

Thus, nationwide injunctions empower judicial overreach, which was a driving factor behind the Injunctive Authority Clarification Act. However, they are too useful as a check against executive aggrandizement to justify eliminating nationwide injunctions completely. Instead, nationwide injunctions should be limited in some way, such as geographically restricted to district- or circuit-wide injunctions.

 


[*] *.. Managing Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Political Science 2017, University of California, Los Angeles. Thank you to my parents, Eric and Lisa, for all of their encouragement and support. In addition, thank you to Professor Samuel Erman for encouraging me to pursue this topic and for his guidance during the drafting of this Note. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

 [1]. Avalon Zoppo et al., Heres the Full List of Donald Trumps Executive Orders, NBC News (Oct. 17, 2017, 8:58 AM), https://www.nbcnews.com/politics/white-house/here-s-full-list-donald-trump-s-executive-orders-n720796 [https://perma.cc/Y7B7-C7EX].

 [2]. See, e.g., Lydia Wheeler, Immigrant Groups Sue Trump Administration Over Travel Ban, The Hill (July 30, 2018, 2:11 PM), https://thehill.com/regulation/399528-immigrant-groups-sue-trump-administration-over-travel-ban [https://perma.cc/938W-XL38].

 [3]. Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8977 (Jan. 27, 2017).

 [4]. Wheeler, supra note 2.

 [5]. Howard M. Wasserman,Nationwide Injunctions are Really Universal Injunctions and They Are Never Appropriate, 22 Lewis & Clark L. Rev. 335, 338 (2018) (“[Universal injunctions] prohibit enforcement of the challenged laws, regulations, and policies not only against the named plaintiffs, but against all persons everywhere who might be subject to enforcement of those laws.).

 [6]. Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012, at *2 (W.D. Wash. Feb. 3, 2017) (granting temporary restraining order against implementation of January 2017 Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States” (citation omitted)).

 [7]. See Timeline of the Muslim Ban, Am. Civ. Liberties Union: Wash., https://www.aclu-wa.org/pages/timeline-muslim-ban [https://perma.cc/CW8U-HCZZ].

 [8]. Donald J. Trump, Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, White House (Sept. 24, 2017), https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats [https://perma.cc/7M26-VF23] [hereinafter Trump, Presidential Proclamation].

 [9]. Trump v. Hawaii, 138 S. Ct. 2392, 23992402 (2018).

 [10]. Press Release, House Judiciary Comm., Goodlatte Statement at Oversight Hearing on Department of Justice Programs (June 8, 2017), https://republicans-judiciary.house.gov/press-release/goodlatte-statement-oversight-hearing-department-justice-programs [https://perma.cc/NWD4-Z9XZ] [hereinafter Press Release, Goodlatte Statement on Programs].

 [11]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [12]. See Press Release, House Judiciary Comm., House Judiciary Committee Approves Bill on Nationwide Injunctions (Sept. 13, 2018), https://republicans-judiciary.house.gov/press-release/house-judiciary-committee-approves-bill-on-nationwide-injunctions [https://perma.cc/R3L9-TM2C] [hereinafter Press Release, Nationwide Injunctions].

 [13]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as ordered to be reported by H. Comm. on the Judiciary, Sept. 13, 2018).

 [14]. U.S. Const. art. II, § 1.

 [15]. U.S. Const. art. II, § 3.

 [16]. Heritage Explains: Executive Orders, Heritage Found., https://www.heritage.org/political-process/heritage-explains/executive-orders [https://perma.cc/J4XG-RXTM].

 [17]. Vivian S. Chu & Todd Garvey, Cong. Research Serv., RS20846, Executive Orders: Issuance, Modification, and Revocation 1 (2014).

 [18]. Id.

 [19]. Justice Jacksons concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring), set out a tripartite scheme that courts use to this day to determine the constitutionality of a presidential action. At the height of presidential power, where he or she is acting with direct or implied authority from Congress, the Court applies rational basis review. At the lowest ebb of presidential power, where he or she is acting contrary to Congresss express wishes, the Court applies strict scrutiny. At the twilight zone of presidential power, where it is unclear which branch should act, the Court applies intermediate scrutiny. See NCC Staff, Executive Orders 101: What Are They and How Do Presidents Use Them?, Const. Daily (Jan. 23, 2017), https://constitutioncenter.
org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them [https://perma.cc/J2S6-5SK8]; see also Chu & Garvey, supra note 17, at 5.

 [20]. Chu & Garvey, supra note 17, at 7–9 (referring to Executive Order 13497, which revoked Executive Orders 13528 and 13422 and instructed the Director of OMB and the heads of executive departments and agencies to rescind orders, rules, guidelines, and policies that implemented President Bushs executive orders).

 [21]. Id. at 9–10. Congress may revoke an executive order by removing the underlying authority upon which the action is predicated, although such legislation could run counter to the Presidents interests and therefore may require a congressional override of a presidential veto.Id. at 9. Congress can withhold funding for executive orders by either denying salaries and expenses for an office established by an executive order, or by directly denying funds to implement a particular section of an order.” Id. at 10 (footnote omitted).

 [22]. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 424 (2017).

 [23]. Id. at 425.

 [24]. See id. at 425 (referring to such injunctions as national injunctions); see also Wasserman, supra note 5, at 339; Getzel Berger, Note, Nationwide Injunctions Against the Federal Government: A Structural Approach, 92 N.Y.U. L. Rev. 1068, 1076 (2017).

 [25]. Berger, supra note 24, at 1076 n. 37 (referencing Bray’s term, “national injunction”).

 [26]. Wasserman, supra note 5, at 338 (emphasis added).

 [27]. See id.

 [28]. Bray, supra note 22, at 437.

 [29]. See Wirtz v. Baldor Elec. Co., 337 F.2d 518, 534 (D.C. Cir. 1963).

 [30]. Bray, supra note 22, at 438–39.

 [31]. Id. at 444–50. After Wirtz, judges viewed injunctions a defensive measure against the enforcement of an action by a public official, such that an injunction would require not merely that the plaintiff is injured . . . , but that there is a threat of enforcement against him, and it is the threatened enforcement that the injunction is meant to prevent.Id. at 450. Consequently, nationwide injunctions would be illogical under this type of antisuit injunction mindset, since the injunction should protect this plaintiff from that enforcement action.” Id.

 [32]. See Bray, supra note 22, at 449–50 (pointing to the adoption of the federal Declaratory Judgment Act in 1934 as a moment that broadened federal thinking and helped develop the idea that statutes could be challenged facially, meaning they would be stricken down as written).

 [33]. Id. at 451 (footnote omitted).

 [34]. Id. at 452.

 [35]. Id.

 [36]. Exec. Order No. 13,769, 82 Fed. Reg. 8977, 8977 (Jan. 27, 2017).

 [37]. What is the Muslim Ban?, Anti-Defamation League, https://www.adl.org/education/
resources/tools-and-strategies/what-is-the-muslim-ban [https://perma.cc/P7YE-UWHN]. It impacted nationals from Syria, Iran, Sudan, Libya, Somalia, Yemen, and Iran.

 [38]. Spencer E. Amdur & David Hausman, Response, Nationwide Injunctions and Nationwide Harm, 131 Harv. L. Rev. F. 49, 49 (2017).

 [39]. See Miriam Jordan & Alejandro Lazo, Airports Clear Out, But Confusion Over Travel Ban Lingers, Wall St. J., https://www.wsj.com/articles/airports-clear-out-but-confusion-over-travel-ban-lingers-1485837752 [https://perma.cc/L2UH-W2KH], see also ACLU and Other Groups Challenge Trump Immigration Ban After Refugees Detained at Airports Following Executive Order, ACLU, https://www.aclu.org/blog/national-security/discriminatory-profiling/aclu-and-other-groups-challenge-trump-immigration [https://perma.cc/R3WX-NNPE].

 [40]. Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012, at *2 (W.D. Wash. Feb. 3, 2017) (granting temporary restraining order against implementation of January 2017 Executive Order, Protecting the Nation from Foreign Terrorist Entry into the United States” (citation omitted)).

 [41]. Id. at *8.

 [42]. See Timeline of the Muslim Ban, supra note 7.

 [43]. See generally Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) (removing Iraq from the list of countries, creating an exception for people who already have visas and green cards, and removing the Syria-specific ban on refugees and references to an individuals status as being part of a religious minority).

 [44]. Hawai’i v. Trump, 241 F. Supp. 3d 1119, 1122–23 (D. Haw. 2017). The court discussed the changes from Executive Order 13,780 to Executive Order 13,769 and how the court would analyze the request for a temporary restraining order under the context that President Trump issued this new executive order to deal with the issues the court in Washington v. Trump identified. Hawai’i v. , 241 F. Supp. 3d at 1123–26, 1128–39

 [45]. Id. at 1125–26 (citation omitted).

 [46]. See id. at 1128.

 [47]. See id. at 1134 (holding that a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion and therefore, the plaintiffs were likely to succeed on the merits of their claim that the order violated the Establishment Clause of the Constitution).

 [48]. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009).

 [49]. Hawai’i, 241 F. Supp. 3d at 1139.

 [50]. Timeline of the Muslim Ban, supra note 7.

 [51]. Trump, Presidential Proclamation, supra note 8. The justification for the countries selected to be restricted were those whose information sharing and managing systems were deemed by the President to be inadequate under the recommendation of the Department of Homeland Security and after a period of diplomatic efforts to encourage improvement of said systems.

 [52]. Id.

 [53]. Trump v. Hawaii, 138 S. Ct. 2392, 2399 (2018).

 [54]. Id. at 2400–02.

 [55]. Id. at 2408–10. The Court identified that the sole requirement for the President to restrict alien entry is that the President findthat the entry of the covered aliens would be detrimental to the interests of the United States.’ Id. at 2408 (quoting 8 U.S.C. § 1182(f)). To address plaintiffs argument that the Presidents justification for the Proclamation were discriminatory, the Court cited to Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993), noting that  ‘[w]hether the Presidents chosen method of addressing perceived risks is justified from a policy perspective is irrelevant to the scope of his [§ 1182(f)] authority.’ Trump, 138 S. Ct. at 2409 (second alteration in original) (quoting Sale, 509 U.S. at 187–88).

 [56]. Id. at 2409–10.

 [57]. Id. at 2413–15. The Court rejected plaintiffs argument because it “ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA,id. at 2414, because § 1152(a)(1)(A) does not limit the Presidents delegated authority under § 1182(f) because Congress could have written § 1152(a)(1)(A) in such a way that it would constrain the Presidents power to determine who may enter the country, but it did not. And because based on the history of § 1152(a)(1)(A), the section has never been treated as a constraint on the criteria for admissibility in § 1182,” and Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality.” Id. at 2415. The Court then pointed to examples from the Reagan and Carter administrations to further its point. Id.

 [58]. Id. at 2417–23. The primary evidence introduced by the plaintiffs consisted of the Presidents statements about Muslims during his campaign and since he assumed office, and they argued that national security concerns and vetting protocols were mere justifications to mask the true purpose of the Proclamation, to discriminate against Muslims. Id. at 2417–18.

 [59]. Id. at 2418 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)).

 [60]. Id. at 2420 (referencing R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)).

 [61]. Id. at 2420–21. It further noted that the entry restrictions against Muslim-majority nations were limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Id. at 2421.

 [62]. Id. at 2421 (citing Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948), and Holder v. Humanitarian Law Project, 561 U.S. 1, 3334 (2010)).

 [63]. Press Release, House Judiciary Comm., Goodlatte Introduces the Injunctive Authority Clarification Act of 2018 (Sept. 10, 2018), https://republicans-judiciary.house.gov/press-release/
goodlatte-introduces-the-injunctive-authority-clarification-act-of-2018 [https://perma.cc/BF73-DS7B%5D [hereinafter Press Release, Goodlatte Introduces Act].

 [64]. Press Release, Nationwide Injunctions, supra note 12.

 [65]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [66]. Press Release, Goodlatte Statement on Programs, supra note 10.

 [67]. See generally The Role and Impact of Nationwide Injunctions by District Courts: Hearing Before the Subcomm. on Courts, Intellectual Prop. and the Internet of the H. Comm. on the Judiciary, 115th Cong. (2017), https://republicans-judiciary.house.gov/hearing/role-impact-nationwide-injunctions
-district-courts [https://perma.cc/MT9K-P22R]. The Subcommittee heard from leading scholars on nationwide injunction. Each speaker presented on the consequences of nationwide injunctions, both positive and negative, although only one speaker affirmatively argued in favor of nationwide injunctions.

 [68]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as introduced in House, Sept. 7, 2018).

 [69]. Injunctive Authority Clarification Act, H.R. 6730, 115th Cong. (as ordered to be reported by H. Comm. on the Judiciary, Sept. 13, 2018).

 [70]. Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018).

 [71]. See The Federalist No. 69 (Alexander Hamilton) (highlighting the differences between the President and a monarch to address the primary concern of the anti-federalists).

 [72]. Scott C. James, Assoc. Professor, UCLA, Lecture: The Administrative PresidencyPolitical Appointees and the Problem of Bureaucratic Discretion (Mar. 14, 2017).

 [73]. Jennifer Earl, A Look Back at Every Government Shutdown in US History, Fox News (Jan. 28, 2019) https://www.foxnews.com/politics/a-look-back-at-every-government-shutdown-in-us-history [https://perma.cc/9WGF-EPKW].

 [74]. In fact, many would argue that the United States has already reached the point of demagoguery. See Michael Gerson, Are Republicans Abetting a Demagogueor Something Worse?, Wash. Post (May 24, 2018, 2:14 PM), https://www.washingtonpost.com/opinions/is-donald-trump-an-instinctual-dema
gogue-or-an-instinctual-authoritarian/2018/05/24/cc62c342-5f8b-11e8-9ee3-49d6d4814c4c_story.html [https://perma.cc/WYK5-MLVL] (identifying President Trump as a demagogue); see also Bob Bauer, The Demagogue as President: Speech, Action, and the Big Parade, Lawfare (Feb. 9, 2018, 7:00 AM), https://www.lawfareblog.com/demagogue-president-speech-action-and-big-parade [https://perma.cc/D9
2X-3QAL]; Ross Douthat, The Taming of a Demagogue, N.Y. Times (Feb. 7, 2018), https://www.
nytimes.com/2018/02/07/opinion/trump-republicans-vote-democrat.html [https://perma.cc/LNB8-ZYJ3]; Christopher Woolf, Is Trump an Autocrat, a Demagogue, or Anything Like That? We Looked at Definitions, Pub. Radio Int’l (May 11, 2017, 5:15 PM), https://www.pri.org/stories/2017-05-11/trump-autocrat-demagogue-or-anything-we-looked-definitions [https://perma.cc/B62M-FGAF] (identifying Trump as authoritarian).

 [75]. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

 [76]. Sean Gorman, Goodlatte Says US Has the Oldest Working National Constitution, PolitiFact (Sept. 22, 2014), https://www.politifact.com/factchecks/2014/sep/22/bob-goodlatte/goodlatte-says-us-has-oldest-working-national-cons [https://perma.cc/H5FJ-DQFS] (confirming that the U.S. Constitution is the oldest written national constitution still in use today based on figures from Tom Ginsburg’s research with the Comparative Constitutions Project).

 [77]. Scott C. James, Assoc. Professor, UCLA, Lecture: Unilateral Policy Instruments and the Congress-Optional Presidency: Executive Orders (Mar. 2, 2017).

 [78]. Id.

 [79]. Id.

 [80]. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. Econ. & Org. 132, 165-66 (1999).

 [81]. Berger, supra note at 24, at 1084.

 [82]. Id. at 108485.

 [83]. Bray, supra note 22, at 460.

 [84]. Id. at 46465.

 [85]. Suzette M. Malveaux, Response, Class Actions, Civil Rights, and the National Injunction, 131 Harv. L. Rev. F. 56, 5859 (2017).

 [86]. Compare Louhghalam v. Trump, 230 F. Supp. 3d 26 (D. Mass. 2017) (refusing to enact an injunction against the travel ban), with Washington v. Trump, No. C17-0141JLR, 2017 U.S. Dist. LEXIS 16012 (W.D. Wash. Feb. 3, 2017) (granting a temporary preliminary injunction against the travel ban).

 [87]. Press Release, Goodlatte Introduces Act, supra note 63.

 [88]. Berger, supra note 24, at 1086 (citing Richard A. Posner, The Federal Courts: Crisis and Reform 163 (1985)).

 [89]. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

 [90]. See id. at 495.

 [91]. See Reed v. Reed, 404 U.S. 71, 76–77 (1971).

 [92]. See Roe v. Wade, 410 U.S. 113, 164–66 (1973).

 [93]. See Obergefell v. Hodges, 135 S. Ct. 2584, 2588 (2015).

 [94]. Kim R. Holmes, Has the Supreme Court Become Too Powerful?, Heritage Found. (Feb. 25, 2016), https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-pow
erful [https://perma.cc/W4E4-X23M].

Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless

Postscript | Constitutional Law
Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless
by Jared Osborne*

Vol. 93, Postscript (April 2020)
93 S. Cal. L. Rev. Postscript 70 (2020)

Keywords: Constitutional Law, Ordinance No. 18-0020, Manhattan Beach 

 

It is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage. – City of Chicago v. Morales[1]

  Introduction

On September 4, 2018, the Manhattan Beach City Council unanimously passed Ordinance No. 18-0020.[2] The ordinance states, in relevant part: “It shall be unlawful and a public nuisance for any person to camp” on public property.[3] Its stated purposes, among other things, are to keep all public areas “readily accessible and available . . . for their intended purposes”[4] and to promote the “health, safety, environment and general welfare of the community.”[5] Violating the ordinance may be punished as either a misdemeanor or an infraction at the city attorney or city prosecutor’s discretion.[6]

Coincidentally, on the same day the ordinance was passed, the Ninth Circuit held in Martin v. City of Boise that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”[7] The court concluded, “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”[8]

In turn, Manhattan Beach announced that it would only enforce the ordinance if an individual refused shelter.[9] However, the city failed to mention that Manhattan Beach lacks homeless shelters and that the city planned to have police transport individuals to shelters in other municipalities.[10] Further, many of its neighboring cities also lack homeless shelters,[11] and those that do are over ten miles away.[12] It is unclear what enforcement actions the city has taken pursuant to the ordinance since it has passed.[13] However, the city did join thirty-two other California counties and cities in an amicus brief petitioning the Supreme Court for review of the Ninth Circuit’s Martin decision, which was denied.[14]

Nonetheless, should Manhattan Beach choose to enforce its anti-camping ordinance as planned, this paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.

I.  Background

Manhattan Beach’s potential transportation of the homeless out of its jurisdiction should not be viewed in isolation. Instead, it should be evaluated within the current state of homelessness and the laws and practices used to criminalize and control the homeless.

A.  Current State of Homelessness

Before discussing homelessness in America, it is important to understand the U.S. Department of Housing and Urban Development’s (“HUD”) definitions of homelessness and its Point-In-Time Count. According to HUD, “homeless describes a person who lacks a fixed, regular, and adequate nighttime residence,” “sheltered homelessness refers to people who are staying in emergency shelters, transitional housing programs, or safe havens,” “unsheltered homelessness refers to people whose primary nighttime location is a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for people,” and “Point-in-Time Counts” (“PIT”)  “are unduplicated [one]-night estimates of both sheltered and unsheltered homeless populations” done every year by local planning bodies during the last week of January.[15]

In 2019, HUD’s PIT counted 567,715 people experiencing homelessness.[16] Approximately 62 percent (356,422) were sheltered while the other 38 percent (211,293) were unsheltered.[17] In California, the PIT counted 151,278 individuals experiencing homelessness,[18] but only 136,839 year-round beds.[19]

HUD’s numbers most likely undercount the homeless population. First, the PIT count of unsheltered individuals uses visual counting, resulting in a sizeable portion of the homeless population being excluded from the statistics on account of being unseen.[20] Second, HUD’s measures do not include either those living with others in temporary “doubled up” situations or those who are currently incarcerated or institutionalized but were homeless prior to arrest.[21] Therefore, it is unsurprising that the population has been estimated to be between 2.5 to 10.2 times greater than the PIT count.[22]

Certain localities have seen dramatic growth in not just the numbers of homeless but also the visibility and awareness of such individuals. For instance, the number of unique homeless encampments reported in the media from 2007 to 2016 has increased by 1,342 percent.[23] While some of these encampments are temporary, many others became at least semi-permanent if not fully permanent fixtures within cities.[24]

B.  Punitive Response to Rise of Homeless Population

In response to these overwhelming numbers, cities have largely favored punitive measures over less costly rehabilitative ones.[25] These measures roughly fit into four categories[26]: (1) ordinances prohibiting sitting, lying down, sleeping, or camping in public places; (2) anti-panhandling laws; (3) trespass admonishments and exclusionary orders; (4) homeless encampment sweeps.

Many cities—like Manhattan Beach—have enacted ordinances banning or limiting a citizen’s ability to sit, sleep, or camp in public places. According to the National Law Center on Homelessness & Poverty’s (“NLCHP”) 2016 survey of 187 cities across the country, 18.2 percent of cities banned sleeping in public city-wide and 26.7 percent prohibited sleeping in particular public places. Moreover, the same survey found that 32.6 percent of cities surveyed restricted camping in public city-wide and 49.7 percent did so in particular areas.

Boise, Idaho’s ordinances on sitting, lying, and sleeping in public places—challenged by plaintiffs in Martin—are illustrative of such laws. One law makes “standing, lying, or sitting down on any of the sidewalks, streets, alleys or public places” in an obstructive manner a misdemeanor upon refusal of an authority’s request to “immediately move on.”[27] Sleeping and camping are also covered:

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time . . . . The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn.[28]

As NLCHP’s survey demonstrates, Boise is not an anomaly.[29] Consequently, a 2016 survey found that 75 percent of homeless people do not know a place where it is safe and legal for them to sleep.[30] These laws collectively punish the homeless for engaging in the elementary human need for rest and sleep.

Panhandling and loitering laws further allow the state to exert control over the homeless.[31] The following example from the Los Angeles Municipal Code exemplifies this approach:

No person shall stand in or upon any street, sidewalk or other public way open for pedestrian travel or otherwise occupy any portion thereof in such a manner as to annoy or molest any pedestrian thereon or so as to obstruct or unreasonably interfere with the free passage of pedestrians.[32]

 Other localities, such as Bakersfield, California, more specifically target panhandling, by making “aggressive” panhandling a crime in any public place and placing time and manner restrictions on non-aggressive forms of soliciting.[33] Critics contend that cities have used the wide-ranging latitude such ordinances offer to “target and harass” the homeless for the simple and involuntary act of being in public.[34]

Trespass admonishments are different from previously discussed measures in that they involve private business interests using the power of the state to ban unwanted individuals from private, semi-public, and public locations, including “the public transportation system, hospitals and religious institutions, libraries and recreation centers, neighborhood stores, and social service agencies.”[35] In these arrangements, private businesses band together and deputize local police officers to banish “unauthorized” individuals from places for up to one year under threat of arrest, prosecution, and conviction for violating the trespass admonishment.[36] Likewise, exclusion orders provide localities with another method to keep out homeless individuals from certain areas. For example, in Seattle, any individual violating one of the many rules governing behavior in public parks can be subject to an exclusion order prohibiting entry into the park—and possibly all city owned parks—for up to a year.[37]

Finally, in response to the rise of homeless encampments, cities have resorted to forcibly removing and clearing out these campsites.[38] These sweeps frequently result in the destruction or confiscation of people’s only property, including important items such as tents, sleeping bags, valuables, documents, and even medications.[39] Cities argue that these sweeps are necessary to limit crime, prevent environmental degradation, and promote public health.[40] While these sweeps do allow a city to clean areas,[41] they do so at a steep budgetary and human cost.[42] Even worse, there is evidence that these sweeps are an ineffective means to clear out areas[43] or induce individuals to seek out shelters.[44]

II.  Banishment Overview

A.  Banishment in the Criminal Context

Historically, banishment was a form of punishment whereby an individual was deported and exiled from a specific area, typically a state or country.[45] As others have noted,[46] perhaps the most famous banishment known to Western culture occurred when God banished Adam and Eve from Eden.[47] The Greeks, Romans, Chinese and Russians applied such punishment throughout the world.[48] Furthermore, this tradition was prevalent during colonial times as England “transported” criminals to the colonies.[49]

While it is often viewed as an outdated and primitive mode of punishment, banishment is not unheard of in the United States.[50] Today, banishment conditions are generally encountered as a condition imposed on parole, probation, or suspended sentence.[51] It has been theorized that banishment promotes rehabilitation, deterrence, and public safety.[52] Banishment conditions vary in degree and scope, ranging from state exile[53] to banishment from smaller delineated geographic areas within cities.[54]

Despite the continued use of banishment in the United States, the majority of jurisdictions have found at least some forms of banishment to be void, especially in cases involving interstate banishment and banishment by deportation.[55] In fact, twenty-seven of the thirty-six state courts that have evaluated the legality of banishment orders have held that at least some forms of banishment are illegal.[56] Generally, the larger the area a banishment order covers, the increased likelihood a court will find that the condition is void.[57] Each of the seven state courts that have reviewed banishment conditions requiring a defendant to self-deport from the United States as a condition of probation or suspended sentence have overturned such conditions because they violated the Supremacy Clause and exceeded the trial court’s judicial authority.[58] Further, all fifteen state courts that have ruled on state banishment as a condition of probation or suspension of a sentence have found it illegal.[59] However, at least five states distinguish conditions of parole or pardon from conditions of probation or suspension of a sentence, primarily arguing that banishment is a valid condition of parole and pardon because both involve an individual voluntarily agreeing to the banishment condition.[60]

As for multi-county, county, and city banishments, the results are more mixed. No court has held they are per se illegal, though seven of the ten appellate state courts that have reviewed such conditions have refused to uphold a county or city-wide banishment order.[61]

More limited banishment restrictions—specific areas within a city—have been viewed less suspiciously by courts. In five states, such narrower restrictions have been upheld in every instance these types of banishments were challenged.[62] On the other hand, Alaska and Illinois have both invalidated and upheld intracity restrictions dependent on the attendant circumstances,[63] while California, Florida, and Minnesota have voided intracity banishment conditions each time they have been challenged.[64]

At the state constitutional level, fifteen state constitutions explicitly prohibit interstate banishment,[65] and another six state constitutions forbid banishment without some form of due process.[66]

Federal courts have largely followed the same pattern as state courts—exhibiting a decreasing reluctance to void banishment orders the more limited their scope. The two federal district courts to have ruled on the legality of state banishments as conditions of probation each determined that banishment from an entire state is unconstitutional.[67] On the other hand, in 1983, the Ninth Circuit upheld a parole condition requiring a defendant—a resident of Washington prior to incarceration—to complete parole in Iowa, and not enter Washington without the parole commissioner’s permission.[68] There, the court reasoned that the constitutional right to travel is not “revived by the change in status from prisoner to parolee.”[69] In 1982, an Ohio district court held, under the “very peculiar circumstances” of the case, that a convict’s commutation granted by the governor—conditioned upon state banishment—was valid because the defendant waived his constitutional rights when accepting the commutation, and moreover, the government may impose certain conditions of liberty on individuals released early.[70]

Like state courts, federal courts are much more likely to uphold conditions of banishment from a county or specific area within a state than those banishing an offender from an entire state. The First,[71] Third,[72] Sixth,[73] Ninth,[74] and Eleventh Circuits[75] as well as the Southern District of Mississippi[76] have all upheld conditions banishing an individual from a particular county on grounds that such conditions were authorized by Federal statute, reasonably related to rehabilitation, not contrary to public policy, or some combination of these factors.[77]

Federal and state courts, in addition to various legal authorities, disagree on what constitutes banishment.[78] For example, an Oregon court held:

Banishment, however, has traditionally been “synonymous with exilement or deportation, importing a compulsory loss of one’s country.” The 90-day exclusion at issue here differs from traditional banishment in two important respects. First, it is of limited duration. Second, it does not involve loss of one’s country or even one’s place of residence or one’s ability to carry out lawful business within the drug free zones. As noted, variances are available for those who live within the drug free zones or have legitimate business there.[79]

On the other hand, the Supreme Court of Arkansas defined banishment “as an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[80] Generally, courts, like the Oregon court cited above, that apply a more extreme definition of banishment—an absolute, unqualified, and long-term ban from a large geographical area—are more likely to uphold banishment orders on a limited scale, whereas courts, like the Arkansas court cited above, that apply a less extreme definition of banishment, are less likely to uphold banishment orders.[81]

Johnson v. City of Cincinnati presents a unique example of generalized banishment. In Johnson, the Sixth Circuit held that an ordinance mandating banishment from all “public streets, sidewalks, and other public ways” within a city’s drug-exclusion zones for anyone arrested or taken into custody on certain drug-related offenses in these zones was unconstitutional.[82] Specifically, the court took issue with the ordinance’s lack of individualized consideration prior to exclusion,[83] and its infringement on the right to intrastate travel.[84]

Ketchum v. West Memphis also involved an individual being banished without a conviction or judicial order. In Ketchum, a man sufficiently stated a claim supporting a violation of his federal constitutional right to travel when he alleged police officers arrested him for loitering in West Memphis, Arkansas, drove him across the Mississippi River, and then “dumped” him in Memphis, Tennessee.[85]

B.  Challenges to Banishment Conditions

Banishments have been invalidated for: (1) infringing the constitutional right to travel,[86] (2) lacking a reasonable relation to rehabilitation,[87] (3) violating public policy,[88] and (4) exceeding the statutorily authorized range of punishment.[89]

Banishment conditions have been found to unconstitutionally infringe on an individual’s right to travel.[90] The Supreme Court has recognized a right to “be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”[91] While the right to interstate travel is a fundamental freedom, not all courts apply a strict scrutiny analysis to banishment as a condition of parole, probation, suspended sentence, or pardon.[92] Some apply rational review[93] and others strict scrutiny.[94] Further, parolees may be subject to harsher travel restrictions than what could be imposed on a citizen not on parole.[95]

One potential reason why courts are more likely to uphold county or city banishment orders over state banishment orders could be a reluctance to explicitly recognize a constitutional intrastate right to travel.[96] The Supreme Court has not ruled on whether there is an implicit right to intrastate travel inherent from the right to interstate travel.[97] However, multiple state and federal courts have expressly found such a right, including California,[98] Washington, Wyoming, Wisconsin, Hawaii, Minnesota, and New York at the state level and the Sixth Circuit[99] at the federal level.[100] “[T]he right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.”[101] Moreover, “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”[102]

Given that many courts do not recognize a fundamental right to travel, or have held that probationers and parolees are subject to stricter restrictions on their constitutional rights, banishment orders have also been challenged as not being reasonably related to states’ dual goals to rehabilitate convicts and protect the public at large.[103] Generally, such challenges are roughly analyzed via an application of the attendant facts and circumstances of the underlying criminal offense, banishment, and the connection between the two. However, some courts, such as Washington[104] and Mississippi,[105] apply a specific set of factors to aid in this analysis. A Texas court held that “banishing appellant from the county . . . when he is broke and unemployed is not reasonably related to his rehabilitation,” especially considering the appellant was a resident of the area prior to his conviction for the unauthorized use of a vehicle.[106] On the other hand, a Wisconsin court upheld a banishment condition prohibiting a convicted stalker from entering a city where his victim resided because it was reasonably related to rehabilitation and the defendant had no reason to enter the city, making the banishment a mere “inconvenience.”[107]

In addition to challenging the penological purposes of a banishment order, courts have held that such orders violate public policy.[108] In 1930, the Michigan Supreme Court, in People v. Baum, articulated how interstate banishment violates public policy:

To permit one State to dump its convict criminals into another would entitle the State believing itself injured thereby to exercise its police and military power in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.[109]

Baum is often cited when courts invalidate a banishment order on public policy grounds.[110] In 1946, a California court applied the same reasoning to invalidate county or city banishments on public policy grounds.[111] Conversely, state courts in Mississippi and Georgia have held that intrastate banishments do not violate public policy.[112]

Finally, banishments have been challenged for exceeding the range of punishment authorized by statute. “A common tenet of criminal law . . . is that the judge can only sentence the defendant to that which the legislature has deemed within the permissible range of punishment . . . .”[113] Thus, absent statutory authorization, a judge may not impose a condition of banishment on probation or suspension of a sentence.[114]

III.  Manhattan Beach’s Ordinance and Practices as an Illegal Form of Banishment

The Manhattan Beach Ordinance and its planned enforcement protocol is unconstitutional because it is a form of banishment, burdens the right to travel, is not reasonably related to rehabilitation or public safety, and violates public policy. This is true regardless of whether the city only enforces it when an individual in violation of the ordinance refuses transportation to a shelter arranged for by the city.

A.  The Manhattan Beach Ordinance and Enforcement Protocol Constitute Banishment

Banishment should be understood as “an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[115] By forcing a homeless individual to leave Manhattan Beach, the ordinance and its enforcement plan undoubtedly “compels” an individual to quit the city. Further, by arranging mandatory shelter services for the individual, the city has specified a period of time—at minimum overnight—the person may not return given that Manhattan Beach lacks homeless shelters. Despite the seemingly fleeting nature of the banishment involved—one might argue a homeless individual can return to Manhattan Beach after spending the night in a shelter—the realities of being homeless make the banishment substantial. By virtue of being impoverished and homeless, an individual forced to acquiesce to a police officer’s offer of relocation under threat of fine or imprisonment most likely lacks the resources to return in a timely manner. Furthermore, the homeless often have jobs they must return to,[116] nearby families or loved ones that require care or visitation, and vital social services close to where they live, albeit without shelter.[117] As researchers Katherine Beckett and Steve Herbert have documented in their interviews with homeless individuals in Seattle banished from certain city zones, ostensibly temporary and limited forms of banishment have a profound impact on the homeless akin to more traditional forms of banishment[118]

Furthermore, it should make no difference whether or not a person “chooses” to accept Manhattan Beach’s offer to accept shelter under threat of prosecution. Just as courts have ruled that a defendant’s “agreement” to a banishment condition on probation does not make it valid,[119] consent given by a homeless person—who unlike a probationer has not just been convicted of a crime—to accept shelter elsewhere does not make the forced transportation out of Manhattan Beach legal. Therefore, the relocation under threat of prosecution should be categorized as a form of banishment.

B.  The Ordinance and Mandated Shelter Beyond Manhattan Beach’s Jurisdiction is Invalid

California has recognized not only an intrastate but also an intra-municipal right to travel under the United States and California constitutions.[120] Therefore, one is precluded from arguing that the forced relocation to a nearby shelter is too geographically narrow to run afoul of the constitutionally provided right to travel. Moreover, while probationers, parolees and prisoners may be subject to “limitations on liberty from which ordinary persons are free,”[121] homeless individuals—like housed individuals—not convicted of a crime may not be. Given the Martin decision, Manhattan Beach cannot prosecute an individual for sleeping outside if the city lacks shelter beds. Therefore, homeless individuals in Manhattan Beach have not relinquished their full constitutional right to travel and the city would violate this right by mandating an individual leave a municipality where a person wants to remain.

While judges are often legally bound by sentencing guidelines requiring punishment to be reasonably related to rehabilitation and public safety at large, the Manhattan Beach City Council is generally not under such constraints when enacting ordinances and city practices. Nonetheless, the city should apply this type of analysis to its anti-camping ordinance. In this case, the homeless individual is not an incarcerated or supervised criminal, so the city should not be concerned with a criminal rehabilitation, but rather a more holistic rehabilitation aiming to help an individual obtain safe and stable housing. Unfortunately, Manhattan Beach’s plan as currently constructed will most likely fail to achieve this aim. As previously discussed, homeless people live in areas where they have social, familial, and employment ties. Thus, forcing someone to immediately accept shelter at a city determined location—potentially with no input from the homeless individual—seems to bear little relation to the goal of getting a person off the streets. At best it might be a temporary and shortsighted fix for the city at the expense of the individual. At worst, a person will refuse the offer and be arrested by the police, requiring the city to use its resources to house the individual in jail, waste administrative capacity on processing, and most likely end up with the individual back living unsheltered in its jurisdiction.[122] Instead of forcing an individual to choose between prosecution and forced relocation, the city should proactively apply city services, including its newly hired homeless liaison, to homeless prevention, not criminalization or banishment.

Additionally, Manhattan Beach’s planned policies are void for public policy for the same reasons criminal banishment orders violate public policy. It invokes the same problems identified by the Baum court in its critique of banishing criminals: sending one’s homeless to neighboring jurisdictions would most definitely “tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States [or municipalities] which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.”[123]

Finally, Manhattan Beach’s planned enforcement exceeds the range of punishment provided by statutory authority. A violation of the ordinance is punishable “as a misdemeanor or an infraction at the discretion of the City Attorney or City Prosecutor.”[124] The ordinance does not authorize the forced relocation of an individual upon pain of punishment. Similar to how judicial banishment orders were found to exceed the court’s authority,[125] the city’s planned enforcement exceeds the city’s statutory authority. Further, a potential unlawful seizure could result should a person “accept” transportation to an area shelter.[126]

In conclusion, Manhattan Beach’s plan constitutes banishment because it impermissibly compels an individual to quit Manhattan Beach for a period of time. Furthermore, the planned practices are illegal because they unduly burden the constitutional rights of interstate and intrastate travel, are void for public policy, and exceed the statutorily authorized range of punishment. Finally, the city council should alter its practices given how its plan is not reasonably related to achieving a long-term decrease in the homeless population or increasing public safety.

 


[*] *.. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Art History 2009, New York University. Thank you to my wife, Allison, and my family and friends for all of their support. In addition, thank you to Professor Clare Pastore for her guidance not just during the drafting of this Note but throughout my time in law school. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

 [1]. City of Chicago v. Morales, 527 U.S. 41, 54 (1999) (plurality opinion) (quoting Kent v. Dulles, 357 U.S. 116, 126 (1958)) (holding that an ordinance prohibiting a gang member from loitering in any public place with one or more people to be unconstitutionally vague).

 [2]. Manhattan Beach, Cal., Municipal Code ch. 4.140 (2019).

 [3]. Id. § 4.140.030.

 [4]. Id. § 4.140.010.

 [5]. Id.

 [6]. Id. § 4.140.130.

 [7]. Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019).

 [8]. Id. at 618.

 [9]. Homelessness, Manhattan Beach, https://www.citymb.info/government/city-manager/
homelessness [https://perma.cc/78KC-XQ6U] (“If the City has arranged for adequate and available shelter, and an individual chooses not to use it, the City will enforce the new Ordinance.”). The city steadfastly maintained its ability to enforce the ordinance. Emily Holland, Manhattan Beach Makes it Illegal to Live On the Street, Patch (Sept. 13, 2018, 10:10 AM), https://patch.com/california/manhattan
beach/anti-camping-ordinance-adopted-manhattan-beach [https://perma.cc/4F8J-3FAZ] (“The City still retains the authority to arrest any individual who has committed a crime, regardless of his or her status, and will continue to exercise that authority . . . .”).

 [10]. Mark McDermott, Anti-Camping Ordinances Aimed at Homeless under Scrutiny, Easy Reader News (Sept. 21, 2018), https://easyreadernews.com/anti-camping-ordinances-aimed-at-home
less-under-scrutiny [https://perma.cc/ZV8W-33UK] (“[T]here are no homeless shelters in Manhattan Beach. MBPD offers homeless transport to regional homeless shelters.”).

 [11]. This author’s search could not locate any homeless shelters in the nearby cities of El Segundo, Redondo Beach, Hermosa Beach, or Gardena.

 [12]. For example, the Doors of Hope Women’s Shelter in Wilmington, California, is a 15.9 mile drive from Manhattan Beach’s city center; the Beacon Light Mission, also in Wilmington, is a 16.5 mile drive; and Jordan’s Disciples Community Service is 16.9 miles from Manhattan Beach.

 [13]. The author’s email to the city’s homeless liaison went unanswered.

 [14]. For this brief, see generally Brief for Cal. State Ass’n of Counties & 33 Cal. Counties & Cities as Amici Curiae Supporting Petitioner, 140 S. Ct. 674 (2019) (No. 19-247) (mem.).

 [15]. U.S. Dep’t of Hous. & Urban Dev., Annual Homeless Assessment Report (AHAR) to Congress pt. 1, at 2–3 (2017), https://files.hudexchange.info/resources/documents/2017-AHAR-Part-1.pdf [https://perma.cc/EG3Q-DYRM].

 [16]. U.S. Dep’t of Hous. & Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: All States, Territories, Puerto Rico and District of Columbia 1 (2019), https://files.hudexchange.info/reports/published/
CoC_PopSub_NatlTerrDC_2019.pdf [https://perma.cc/HB2V-EJEM].

 [17]. Id.

 [18]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_PopSub_State_CA_2019.pdf [https://perma.cc/M
9N8-FHF6].

 [19]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Housing Inventory Count Report: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_HIC_State_CA_2019.pdf [https://perma.cc/727M
-ERDB].

 [20]. Nat’l Law Ctr. on Homelessness & Poverty, Don’t Count on It: How the HUD Point-in-Time Count Underestimates the Homeless Crisis 6 (2017), https://nlchp.org/wp-content/
uploads/2018/10/HUD-PIT-report2017.pdf [https://perma.cc/RE4P-ACTM] [hereinafter Don’t Count on It]. One New York study found that 31 percent of the homeless slept in areas “not visible” at the time of the count. Kim Hopper et al., Estimating Numbers of Unsheltered Homeless People Through Plant-Capture and Postcount Survey Methods, 98 Am. J. Pub. Health 1438, 1440 (2008).

 [21]. Don’t Count on It, supra note 20, at 6. Such exclusions are not trivial as Houston’s 2017 PIT count increased 57 percent when including individuals in county jails who reported being homeless at the time of arrest. Id.

 [22]. Id.

 [23]. Natl Law Ctr. on Homelessness & Poverty, Tent City, USA: The Growth of Americas Homeless Encampments and How Communities are Responding 7 (2017), https://nlchp.org/wp-content/uploads/2018/10/Tent_City_USA_2017.pdf [https://perma.cc/K9N5-Y2D8] [hereinafter Tent City]; see also Phil Willon & Taryn Luna, Californias Homelessness Crisis Is ‘A Disgrace,Newsom Says in State of the State Address, L.A. Times (Feb. 19, 2020), https://www.latimes.com/homeless-housing/story/2020-02-19/governor-gavin-newsom-state-of-state-california-speech-homelessness [https://perma.cc/T84S-XNWX].

 [24]. See Tent City, supra note 23, at 7 (“Close to two-thirds of reports which recorded the time in existence of the encampments showed they had been there for more than one year, and more than one-quarter had been there for more than five years.”).

 [25]. See Natl Law Ctr. on Homelessness & Poverty, Housing Not Handcuffs 2019: Ending the Criminalization of Homelessness in U.S. Cities 71–73 (2019), https://nlchp.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf [https://perma.cc/U6EH-L5AS] (estimating that the annual cost per homeless person of arrests, jail stays, ER visits, and hospital stays costs Central Florida $31,000 in comparison to $10,000 per year to provide permanent housing and a case manager).

 [26]. Cf. Farida Ali, Note, Limiting the Poors Right to Public Space: Criminalizing Homelessness in California, 21 Geo. J. on Poverty L. & Poly 197, 212–16 (2014) (categorizing criminalization of homelessness into the following: (1) sleeping ordinances, (2) loitering ordinances, (3) panhandling ordinances, (4) sanitation ordinances).

 [27]. Boise, Idaho, City Code § 7-3A-1 (2019).

 [28]. Id. § 7-3A-2.

 [29]. See, e.g., Durango, Colo., Code of Ordinances § 17-60(c) (2019) (outlawing—with only limited exceptions—sitting, kneeling, reclining, or lying down “in the downtown business area upon any surface of any public right-of-way, or upon any bedding, chair, stool, or any other object placed upon the surface of any public right-of-way between the hours of 7:00 a.m. and 2:30 a.m. of the next day”); see also Santa Monica, Cal., Municipal Code § 4.08.095 (2020); Beverly Hills, Cal., City Code § 5-6-1501–5-6-1502 (2019); Seattle, Wash., Municipal Code § 18.12.250 (2020).

 [30]. W. Reg’l Advocacy Project, National Civil Rights Outreach Fact Sheet 2 (2016), https://wraphome.org/wp-content/uploads/2017/10/NationalCivilRightsFactSheetOctober2016.pdf [https://perma.cc/KLC8-2GJ4].

 [31]. Terry Skolnik, Homelessness and the Impossibility to Obey the Law, 43 Fordham Urb. L.J. 741, 759–61 (2016) (noting that while not all persons who panhandle are homeless, studies have shown that many panhandlers are).

 [32]. L.A., Cal., Municipal Code  § 41.18(a) (2019).

 [33]. Bakersfield, Cal., Municipal Code § 9.32.020 (2019).

 [34]. Ali, supra note 26, at 212–213.

 [35]. ABA Comm’n on Homelessness & Poverty, No Such Place as “Away:” Why Banishment is a Wrong Turn on the Path to Better and Safer Cities 1–2 (2010), https://www.americanbar.org/content/dam/aba/migrated/homeless/PublicDocuments/ABA_CHP_Banishment_White_Paper_February_2010.pdf [https://perma.cc/4TYY-GWGU].

 [36]. Id. at 1.

 [37]. Id. at 2.

 [38]. Natl Coal. for the Homeless, Swept Away: Reporting on the Encampment Closure Crisis 2 (2016), http://nationalhomeless.org/publication/view/swept-away-2016 [https://perm
a.cc/7FEQ-HGTX
].

 [39]. Id.; see also Jennifer Wadsworth, San Jose Dramatically Increases Sweeps of Homeless Camps, San Jose Inside, (Nov. 2, 2018), http://www.sanjoseinside.com/2018/11/02/san-jose-dramatically-increases-sweeps-of-homeless-camps [https://perma.cc/PV6N-W75X].

 [40]. Natl Coal. for the Homeless, supra note 38, at 5.

 [41]. Dakota Smith, L.A. Wants More Money for Homeless Encampment Sweeps, L.A. Times (Feb. 21, 2018, 4:00 AM), http://www.latimes.com/local/lanow/la-me-ln-homeless-clean-backlog-20180221-story.html [https://perma.cc/7QC3-5WQ6].

 [42]. Office of the City Auditor, Report to the City Council City of San Jose, Audit of the City’s Homeless Assistance Programs 41 (2018), https://www.sanjoseca.gov/Home/Show
Document?id=33914 [https://perma.cc/TT3P-QZQK]. The City of San Jose spent over two million dollars during the 2017–2018 fiscal year. Id. at 37.

 [43]. Laura Waxmann, Homeless Advocates Claim April Sweeps Led to More Encampment Complaints, S.F. Examr (May 25, 2018, 12:00 AM), http://www.sfexaminer.com/homeless-advocates-claim-april-sweeps-led-encampment-complaints [https://perma.cc/59KD-BHNC] (noting that an analysis of homeless encampment complaints in an area affected by a major sweep actually increased 8 percent the month after tents were removed).

 [44]. See Natl Coal. for the Homeless, supra note 38, at 7 (“Seattle’s Human Services Department admitted that the majority of campers displaced in sweeps did not end up in city shelters, and a Honolulu survey revealed that more encampment residents stated that sweeps made them less likely or able to seek shelter than the reverse.” (footnote omitted)).

 [45]. 1 Shirelle Phelps & Jeffrey Lehman, Wests Encyclopedia of American Law 462 (2d ed. 2005).

 [46]. Jason S. Alloy, Note, “158-County Banishment in Georgia: Constitutional Implications Under the State Constitution and the Federal Right to Travel, 36 Ga. L. Rev. 1083, 1085 (2002).

 [47]. Genesis 3:22–23 (New International Version).

 [48]. Phelps & Lehman, supra note 45, at 462.

 [49]. Id.

 [50]. See Brian McGinnis, This Is Why Some U.S. Judges Banish Convicts From Their Home Communities, Wash. Post (Mar. 16, 2017, 4:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/16/this-is-why-some-u-s-judges-banish-convicts-from-their-home-communities/?no
redirect=on&utm_term=.1b630b8931b2 [https://perma.cc/6TET-JPVD] (“Houston County, for instance, has banished more than 500 people since 1998.”).

 [51]. Robert E. Haffke, Note, Intrastate Banishment: An Examination and Argument for Strict Scrutiny of Judicially and Executively Imposed Banishment Orders, 57 Case W. Res. L. Rev. 896, 903 (2007).

 [52]. Id. at 903–08.

 [53]. Reeves v. State, 5 S.W.3d 41, 42 (Ark. 1999) (reviewing an appeal of a seven-year exile from the state of Arkansas as a probation condition imposed on a defendant convicted of stalking).

 [54]. State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (affirming a special probation condition that banned a defendant convicted of prostitution from the French Quarter neighborhood for the length of the defendant’s probation).

 [55]. Wm. Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 New Eng. J. on Crim. & Civ. Confinement 455, 466 (1998) (“The majority of courts, both federal and state, which have addressed the legality of banishment, have held that banishment is illegal.”).

 [56]. See Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1995); Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986); Reeves, 5 S.W.3d at 44–45; Alhusainy v. Super. Ct., 48 Cal. Rptr. 3d 914, 919 (Ct. App. 2006); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969); People v. Harris, 606 N.E.2d 392, 397 (Ill. App. Ct. 1992); Burnstein ex rel. Burnstein v Jennings, 4 N.W.2d 428, 429 (Iowa 1942); Weigand v. Commonwealth, 397 S.W.2d 780, 781 (Ky. Ct. App. 1965); State v. Sanchez, 462 So. 2d 1304,1309–10 (La. Ct. App. 1985); Howard v. State, No. 1909, 2016 Md. App. LEXIS 1370, at *37–38 (Md. Ct. Spec. App. Oct. 12, 2016) (unpublished); Commonwealth v. Pike, 701 N.E.2d 951, 960–61 (Mass. 1998); People v. Baum, 231 N.W. 95, 96 (Mich. 1930); State ex rel. Halverson v. Young, 154 N.W.2d 699, 701–02 (Minn. 1967); Mackey v. State, 37 So. 3d 1161, 1166–67 (Miss. 2010); State v. Muhammad, 43 P.3d 318, 324 (Mont. 2002); Ex parte Thornberry, 254 S.W. 1087, 1089–1090 (Mo. 1923); State v. J. F., 621 A.2d 520, 522 (N.J. Super. Ct. App. Div. 1993); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992); People v. Marcial, 577 N.Y.S.2d 316, 317 (App. Div. 1991); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1953); State v. Mose, No. 11CA0083-M, 2013 Ohio App. LEXIS 562, at *7 (Ohio Ct. App. Feb. 25, 2013); State v. Jacobs, 692 P.2d 1387, 1389 (Or. Ct. App. 1984); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); State v. Baker, 36 S.E. 501, 502 (S.C. 1900); Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005): Crabtree v. State, 112 P.3d 618, 622 (Wyo. 2005).

 [57]. See, e.g., Schimelpfenig, 115 P.3d at 339 (“An order banishing an individual from a large geographical area is bound to raise both societal and legal concerns.”).

 [58]. See In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); Weigand, 397 S.W.2d at 781; Sanchez, 462 So. 2d at 1309–1310; State v. Pando, 921 P.2d 1285, 1286–87 (N.M. Ct. App. 1996); Commonwealth v. Nava, 966 A.2d 630, 635–36 (Pa. Super. Ct. 2009); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); Gutierrez v. State, 354 S.W.3d 1, 7 (Tex. Ct. App. 2011).

 [59]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997); Reeves,  5 S.W.3d at 44–45; Alhusainy, 48 Cal. Rptr. at 919; Burnstein, 4 N.W. 2d at 429; Harris, 606 N.E.2d at 397; Q.M. v. Commonwealth, 459 S.W.3d 360, 370 (Ky. 2015); Pike, 701 N.E.2d at 960–61; Baum, 231 N.W. at 96; Halverson, 154 N.W.2d at 701; J. F., 621 A.2d at 522; Charlton, 846 P.2d at 344; Marcial, 577 N.Y.S.2d at 317; Doughtie, 74 S.E.2d at 924; Mose, 2013 Ohio App. LEXIS 562l at *7; Baker, 36 S.E. at 502; Snider, supra note 55, at 466 (“Almost without exception, courts reviewing a plan of probation requiring a person to leave the state or a large geographical subdivision of the state, have found the plan to be illegal.”).

 [60]. Beavers v. State, 666 So. 2d 868, 871–72 (Ala. Crim. App. 1995) (holding county banishment was valid because there was no statutory or constitutional authority proscribing banishment as a condition of parole, the parole board had statutory authority to set parole rules, and had defendant turned down parole he would have faced banishment anyways, so there was no loss of liberty); Dougan v. Ford, No. 04-623, 2005 Ark. LEXIS 519, at *3–4 (Ark. Sept. 29, 2005) (holding a parole condition requiring defendant not return to a specific county valid because there was no constitutional right or entitlement to parole, the parole board was provided statutorily authorized discretion to set parole conditions, and defendant was free to decline and serve out his sentence instead); In re Petition for Cammarata, 67 N.W.2d 677, 682–83 (Mich. 1954); Ex parte Snyder, 159 P.2d 752, 754 (Okla. Crim. App. 1945); Mansell v. Turner, 384 P.2d 394, 395 (Utah 1963) (“If the conditional termination were void, petitioner has no complaint as to recommitment to prison, since the compact was nudum pactum.”); see also Snider, supra note 55, 466 (1998) (“[A] number of states have drawn a distinction between banishment as a condition of probation or suspension of sentence, and banishment as a condition of a pardon or parole.”).

 [61]. Alabama, California, Maryland, Missouri, Montana, Ohio, Washington and Wyoming have all rejected each county and city banishment reviewed. See Brown, 660 So. 2d at 236 (“Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Ct. App. 1946); Howard, 2016 Md. App. LEXIS 1370, at *37–38; Thornberry, 254 S.W. at 1089–90; Muhammad, 43 P.3d at 324; State v. Jerido, No. 1997CA00265, 1998 Ohio App. LEXIS 2482, at *2–3 (Ohio Ct. App. May 26, 1998); State v. Schimelpfenig, 115 P.3d 338, 341 (Wash. Ct. App. 2005); Crabtree, 112 P.3d at 622. On the other hand, Mississippi has both upheld and invalidated such banishments dependent on the circumstances of the case. See Mackey v. State, 37 So. 3d 1161, 1166­–67 (Miss. 2010) (holding that a condition prohibiting defendant from coming within 100 miles of a city for 30 years was invalid because the trial court’s order lacked factual findings in support of banishment); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983) (upholding banishment condition requiring defendant to stay at least 125 miles away from a county). Georgia and Wisconsin have upheld city or county banishments each time they have been reviewed.   De Terry v. Hamrick, 663 S.E.2d 256, 258–59 (Ga. 2008); State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995); State v. Johnson, No. 02-2793-CR, 2003 Wis. LEXIS App 188 (Wis. Ct. App. July 15, 2003) (unpublished), aff’d 681 N.W.2d 901 (Wis. 2004).

 [62]. People v. Brockelman, 933 P.2d 1315, 1320–21 (Colo. 1997); Tyson v. State, 687 S.E.2d 284, 287 (Ga. Ct. App. 2009); State v. Morgan, 389 So. 2d 364, 366 (La. 1980); State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999); State v. McBride, 873 P.2d 589, 592–94 (Wash. Ct. App. 1994).

 [63]. For Alaska, compare Oyoghok v. Anchorage, 641 P.2d 1267, 1270–71(Alaska Ct. App. 1982) (holding that a two-block radius restriction as condition of probation for prostitution conviction was not overbroad as applied, was reasonably related to rehabilitation, and did not unduly impinge upon probationer’s liberty), with Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986) (holding that a forty-five block restriction was invalid as there was no nexus between location and defendant’s crime and the banishment was unnecessarily severe and restrictive). For Illinois, compare People v. Pickens, 542 N.E.2d 1253, 1257 (Ill. App. Ct. 1989) (holding that banishment from a fifty-block area of downtown absent written permission from a probation officer was not invalid and was reasonable), with In re J.G., 692 N.E.2d 1226, 1229 (Ill. App. Ct. 1998) (holding that banishment was invalid because it was not reasonably related to rehabilitation).

 [64]. In re White, 158 Cal. Rptr. 562, 555–57 (Cal. Ct. App. 1979) (holding that a probation restricting a convicted prostitute from known areas of prostitution too broad and unrelated to rehabilitation, and thus unreasonable and unconstitutional); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (“[O]ut-of-town or informal banishment . . . from the city is cruel and unusual punishment and is prohibited by the Federal and Florida Constitutions.”); State v. Holiday, 585 N.W.2d 68, 71 (Minn. Ct. App. 1998) (holding that an order banning defendant from reentering all public housing within the city after a charge of minor trespass was an unconstitutional violation of defendant’s right of association).

 [65]. Snider, supra note 55, at 465; see also Ala. Const. art I, § 30 (“[N]o citizen shall be exiled.”); Ark. Const. art. II, § 21 (“[N]or shall any person, under any circumstances, be exiled from the State.”); Ga. Const. art. I, § 1, para. XXI (“Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime.”); Ill. Const. art I, § 11 (“No person shall be transported out of the State for an offense committed within the State.”); Neb. Const. art. I, § 15 (“[N]or shall any person be transported out of the state for any offense committed within the state.”); Ohio Const. art. I, § 12 (“No person shall be transported out of the state, for any offense committed within the same.”); Tex. Const. art. I, § 20 (“No person shall be transported out of the State for any offense committed within the same.”); Vt. Const. ch. I, art. XXI (“[N]o person shall be liable to be transported out of this state for trial for any offence committed within the same.”); W. Va. Const. art. III, § 5 (“No person shall be transported out of, or forced to leave the State for any offence committed within the same.”).

 [66]. Snider, supra note 55, at 465. Md. Const. art. XXIV (“[N]o man ought to be . . . exiled . . . but by the judgment of his peers, or by the Law of the land.”); Mass. Const. pt. 1, art. XII (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.H. Const. pt. 1, art. XV (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.C. Const. art. I, § 19 (“No person shall be . . . exiled . . . but by the law of the land.”); Okla. Const. art. II, § 29 (“No person shall be transported out of the State for any offense committed within the State, nor shall any person be transported out of the state for any purpose, without his consent, except by due process of law.”); Tenn. Const. art I, § 8 (“[N]o man shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”).

 [67]. Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (holding that a ten-year banishment from Virginia was void on both public policy and cruel and unusual punishment grounds); Naked City, Inc. v. Aregood, 667 F. Supp. 1246, 1261 (S.D. Ind. 1987) (holding—without any reasoning provided—that a ten-year banishment from the state was in violation of the Constitution).

 [68]. Bagley v. Harvey, 718 F.2d 921, 924–25 (9th Cir. 1983).

 [69]. Id. The court also relied on the fact that the parolee suggested he complete parole in Iowa, and he was free to return to Washington after parole concluded.

 [70]. Carchedi v. Rhodes, 560 F. Supp. 1010, 1017–19 (S.D. Ohio 1982).

 [71]. United States v. Garrasteguy, 559 F.3d 34, 43–44 (1st. Cir. 2009) (upholding a condition of supervised release requiring defendants to not enter the county—without any exceptions­—where they distributed cocaine for eight and twelve years, respectively, despite the breadth of the banishment giving the court “pause”).

 [72]. United States v. Sicher, 239 F.3d 289, 292 (3d Cir. 2000) (upholding prohibition from two counties, with limited ability to enter with a probation officer’s permission, because it was reasonably related to the rehabilitative goal of keeping defendant away from influences that would engage her in further criminal activity).

 [73]. United States v. Alexander, 509 F.3d 253, 256–58 (6th Cir. 2007) (approving a requirement that defendant live hundreds of miles away from the city where his child and other family members reside after defendant had committed five supervised-release violations); United States v. Rantanen, 684 Fed. Appx. 517, 520–22 (6th Cir. 2017) (mem.) (upholding a special banishment condition from a county because geographic restrictions are expressly authorized by federal sentencing guidelines set out in 18 U.S.C. § 3563(b)(13) and the county restriction was not plain error despite the court’s discomfort with the nine-year length of banishment and lack of exceptions, such as obtaining permission to enter the county).

 [74]. United States v. Watson, 582 F.3d 974, 985 (9th Cir. 2009) (holding that a condition of supervised release to not return to San Francisco or a county for the entirety of defendant’s supervised release without permission of the probation officer was reasonably related to goals of rehabilitation and deterrence and was no broader than reasonably necessary to serve those purposes).

 [75]. United States v. Cothran, 855 F.2d 749, 753 (11th Cir. 1988) (upholding a banishment from a county because it was expressly authorized by statute and “simply not contrary to public policy”).

 [76]. Watts v. Brewer, No. 2:09cv122-KS-MTP, 2012 U.S. Dist. LEXIS 52775, at *26 (S.D. Miss. Mar. 16, 2012) (upholding a sentence suspended on condition defendant remain outside a hundred-mile radius from the courthouse because such a condition did not violate any constitutional rights).

 [77]. See infra notes 7176.

 [78]. See Peter Edgerton, Comment, Banishment and the Right to Live Where You Want, 74 U. Chi. L. Rev. 1023, 1039–40 (2007) (listing various definitions of banishment found in multiple legal dictionaries); Matthew D. Borrelli, Note, Banishment: The Constitutional and Public Policy Arguments Against This Revived Ancient Punishment, 36 Suffolk U. L. Rev. 469, 480–81 (2002–2003) (“The broadened definition of probation allows states to avoid calling punishment ‘banishment’ and escape the regulations that the courts set as precedent. This creates potential confusion over what banishment entails . . . .” (footnote omitted)).

 [79]. State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999) (quoting Black’s Law Dictionary 131 (5th ed. 1979)).

 [80]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

 [81]. Key v. State, No. 01-01-01051-CR, 2002 Tex. App. LEXIS 7980, at *7 (Tex. Ct. App. Nov. 7, 2002) (unpublished) (holding that conditions requiring defendant to serve community supervision in a particular county and obtain permission to enter a separate county do not constitute banishment and are therefore valid).

 [82]. Johnson v. City of Cincinnati, 310 F.3d 484, 506 (6th Cir. 2002).

 [83]. Id. at 503.

 [84]. Id. at 498.

 [85]. Ketchum v. West Memphis, 974 F.2d 81, 83 (8th Cir. 1992).

 [86]. See, e.g., State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005) (“At the most, banishment orders encroach on an individual’s constitutional right to travel, which includes the right to travel within a state.”).

 [87]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (holding a seven-year exile from the state as a condition of probation is, among other things, “repugnant to the underlying policy of the probation law, which is to rehabilitate offenders without compromising public safety” (quoting State v. Young, 154 N.W.2d 699, 702 (1967)).

 [88]. See, e.g., People v. Baum, 231 N.W. 95, 96 (Mich. 1930) (“[Banishment] is impliedly prohibited by public policy.”).

 [89]. See e.g., People v. Blakeman, 339 P.2d 202, 202–03 (Cal. Ct. App. 1959) (“It was beyond the power of the court to impose banishment as a condition of probation. The provision therefor was a void and separable part of the order granting probation.”).

 [90]. In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005).

 [91]. Shapiro v. Thompson, 394 U.S. 618, 629 (1969).

 [92]. Borrelli, supra note 78, 473; see also United States v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (“A restriction on a defendant’s [constitutional right] is nonetheless valid if it: (1) ‘is reasonably related’ to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) ‘involves no greater deprivation of liberty than is reasonably necessary’ to achieve these goals; and (3) ‘is consistent with any pertinent policy statements issued by the Sentencing Commission . . . .’ ” (citations omitted)).

 [93]. See, e.g., State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (“[T]he condition of probation [of banishment from French Quarter neighborhood] is reasonably related to Ms. Morgan’s rehabilitation.”).

 [94]. See, e.g., Schimelpfenig, 115 P.3d at 339 (Wash. Ct. App. 2005) (“Because of its constitutional implications, we apply strict scrutiny in reviewing a banishment order.”).

 [95]. Morrissey v. Brewer, 408 U.S. 471, 478 (1972).

 [96]. Haffke, supra note 51, at 919.

 [97]. Id. at 921; see also Johnson v. City of Cincinnati, 310 F.3d 484, 496 (6th Cir. 2002) (“The Supreme Court has not yet addressed whether the Constitution also protects a right to intrastate travel.”).

 [98]. In re White, 158 Cal. Rptr. 562, 567 (Ct. App. 1979) (holding that the intrastate right to travel, including an intramunicipal right to travel, are protected by the United States and California Constitutions).

 [99]. Johnson, 310 F.3d at 498 (“In view of the historical endorsement of a right to intrastate travel and the practical necessity of such a right, we hold that the Constitution protects a right to travel locally through public spaces and roadways.”).

 [100]. Haffke, supra note 51, at 922.

 [101]. In re White, 158 Cal. Rptr. at 567 (emphasis added).

 [102]. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971).

 [103]. See, e.g., State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

 [104]. State v. Schimelpfenig, 115 P.3d 338, 340–41 (Wash. Ct. App. 2005) (citing the following factors: “(1) whether the restriction is related to protecting the safety of the victim or witness of the underlying offense; (2) whether the restriction is punitive and unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides or is employed in the area from which he is banished; (4) whether the defendant may petition the court to temporarily lift the restriction if necessary; and (5) whether less restrictive means are available to satisfy the State’s compelling interest”).

 [105]. Mackey v. State, 37 So. 3d 1161, 1165 (Miss. 2010) (“[T]he banishment provision herein bears a reasonable relationship to the purposes of the suspended sentence or probation, that the ends of justice and the best interest of the public and the Defendant will be served by such banishment during the period of the suspended sentence, that the banishment provision of the suspended sentence does not violate the public policy of the State of Mississippi, that the banishment provision of the suspended sentence herein does not defeat the rehabilitative purpose of the probation and/or suspended sentence, and such provision does not violate the Defendant’s rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution.” (citation omitted)).

 [106]. Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984).

 [107]. State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

 [108]. Borrelli, supra note 78, at 478–79; Haffke, supra note 51, at 910.

 [109]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see also State v. Sanchez, 462 So. 2d 1304, 1310 (La. Ct. App. 1985) (“[T]he portion of trial judge’s sentence in the instant case which imposes banishment as a special condition of probation is unconstitutional.”); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1922) (holding that a suspended sentence conditioned upon a two-year exile from the state for was void because it was effectively a banishment and such punishment is “not sound public policy to make other states a dumping ground for our criminals”).

 [110]. Snider, supra note 55, at 467–68; see also Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (“[Banishment] is impliedly prohibited by public policy.” (citing People v. Baum, 231 N.W. 95 (Mich. 1930))); Doughtie, 74 S.E.2d at 924 (N.C. 1953); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992) (quoting Baum to support holding that state banishment violates public policy); State v. Gilliam, 262 S.E.2d 923, 924 (S.C. 1980) (holding a suspension of sentence conditioned on indefinite banishment from the state was invalid because it was beyond the power of a circuit judge and “such a sentence is impliedly prohibited by public policy”).

 [111]. Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Dist. Ct. App. 1946) (“The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city.”).

 [112]. State v. Collett, 208 S.E.2d 472, 474 (Ga. 1974); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983).

 [113]. Snider, supra note 55, at 466.

 [114]. Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1998) (“No. Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d at 826; see also State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969) (“The court was without power to indefinitely suspend a sentence in return for petitioner’s promise to stay out of town.”); Weigand v Kentucky, 397 S.W.2d 780, 781 (Ky. 1965) (“The Commonwealth concedes it is beyond the power of a court to inflict banishment as an alternative to imprisonment.”); Bird v. State, 190 A.2d 804, 438 (Md. Ct. App. 1963) (“We hold therefore that the suspension of sentence conditioned on banishment was beyond the power of the trial court and void . . . .”).

 [115]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

 [116]. See, e.g., Metro. Wash. Council of Gov’ts, Homelessness in Metropolitan Washington 21–22 (2017) (noting that 22 percent of single homeless adults and 32 percent of adults in homeless families are employed).

 [117]. Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America 115–16 (2010) (“For many others, though, the fear of going to jail was simply not enough to compel compliance [with exclusion orders]. This was not because they particularly enjoyed jail, but rather that the locales from which they were excluded housed many important amenities, including social networks, contacts, and relationships; social services; a sense of safety and security; and a place they called home.”).

 [118]. Id. “[The judge] said, ‘Oh, there are other places.’ I said, ‘Your Honor, I don’t know how, understand? This is my home.’” Id. at 115 (alteration in original). “I mean as far as being homeless, that’s the only area you know.” Id.

 [119]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

 [120]. In re White, 158 Cal. Rptr. 562, 556–57 (Ct. App. 1979).

 [121]. United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).

 [122]. See Beckett & Herbert, supra note 117, at 114. (“Many reported that they resisted their banishment order because they needed access to important services. In particular, both parks and [exclusionary] zones housed services that rendered compliance with an exclusion order impractical . . . .”).

 [123]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930).

 [124]. Manhattan Beach, Cal., Municipal Code § 4.140.130 (2019).

 [125]. Warren v. State, 706 So. 2d 1316,  1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

 [126]. “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave . . . .” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case a reasonable person would not have believed he was free to leave. Moreover, under Martin, a homeless individual caught sleeping outside may not be prosecuted in Manhattan Beach because it has no shelter beds. Therefore, an arrest is improper and transportation to a nearby shelter would constitute a seizure.

The Limits of the Interstate Commerce Power: How to Decide the Close Cases – Postscript by R. George Wright

Postscript | Constitutional Law
The Limits of the Interstate Commerce Clause:
How to Decide the Close Cases

by R. George Wright*

Vol. 93, Postscript (June 2019)
93 S. Cal. L. Rev. Postscript 45 (2019)

Keywords: Commerce Clause

 

Introduction

The exceptional importance of the congressional power to regulate interstate commerce[1] is widely acknowledged.[2] The Commerce Clause authorizes, or is claimed to authorize, a remarkable range, in particular, of criminal prosecutions. One court of appeals case[3] listed an actual or purported Commerce Clause basis for federal criminal statutes focusing on, respectively, animal terrorism,[4] avoiding payment of child support,[5] avoiding prosecution,[6] transportation of strikebreakers,[7] murder for hire,[8] causing a riot,[9] participating in a riot,[10] robbery involving controlled substances,[11] domestic violence,[12] stalking,[13] violating a domestic protective order,[14] and providing minors for sex.[15]

To this listing we might add sex offender registration and notification requirements,[16] biological weapons in the context of terrorism,[17] chemical weapons prohibition,[18] church arson prevention,[19] access to health clinic entrances,[20] hate crimes prevention,[21] a broad federal arson statute,[22] a felon’s possession of a firearm,[23] brandishing of a firearm during a violent crime,[24] Hobbs Acts robberies,[25] violent crimes in aid of a racketeering enterprise,[26] and particular crimes associated with child pornography.[27]

For our purposes, the problem is whether a given federal statute, either on its face, or as applied under the circumstances of a particular case, can somehow be sufficiently linked to the legitimate scope of the underlying congressional power to regulate interstate commerce. We are thus concerned with the scope and limits of the interstate commerce power. And our focus is in particular on the many close, difficult, or controversial such cases.

Below, this Article introduces the relevant case law[28] by examining the recent case of United States v. Hill,[29] a federal Hate Crimes Prevention Act prosecution of a battery committed on a gay fellow-employee at an Amazon Fulfillment Center.[30] There follows a brief tour of the most crucially relevant Supreme Court Commerce Clause jurisprudence, with an emphasis on current doctrine.[31]

In light of these materials, this Article then highlights a number of largely unsolvable problems in trying to delimit the scope of the Commerce Clause power. There is, merely to begin, the problem of the vagueness of legal language in general and of the key terms embodied in the Commerce Clause more specifically.[32] The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.[33]

These largely unsolvable problems of vagueness then afflict the courts’ attempts to rely on ideas such as a given activity somehow sufficiently affecting interstate commerce, or being such as to sufficiently concern interstate commerce.[34] Similarly unsatisfactory are the judicial attempts to rely on a distinction between an entity’s being sufficiently active, or actively engaged with respect to interstate commerce, as supposedly distinct from being merely passive, or insufficiently engaged with interstate commerce. And then perhaps most deeply problematic is the standard judicial reliance on the idea of sometimes aggregating small separate effects on interstate commerce into a hypothetical or actual substantial collective effect of those activities on interstate commerce.

Given the insolubility of these problems, the Conclusion below recommends instead drawing the boundary lines in close Commerce Clause cases with a conscious regard for independently recognized fundamental constitutional rights and, especially in these close cases, for the expressive or symbolic value, or the lack thereof, of particular statutes and court judgments.

I.  HATE CRIMES LEGISLATION AND THE SCOPE of the interstate commerce power: the hill case

In the recent case of United States v. Hill, the Fourth Circuit Court of Appeals considered the scope of congressional power to punish bias-motivated[35] crimes.[36] In this case, the defendant was charged under the federal Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009.[37] The defendant Hill had “boastfully admitted to physically and violently assaulting a co-worker preparing packages for interstate sale and shipment because of the co-worker’s sexual orientation.”[38]

At the time of the incident, Hill and his victim were engaged in tasks such as moving, binning, packing, loading, and scanning items for shipment from the Amazon Fulfillment Center in Chester, Virginia.[39] From the record, Hill approached the victim “from behind and—without provocation or warning—repeatedly punched him in the face.”[40] The victim was treated at the Amazon in-house medical clinic and at a local hospital for bruising, cuts, and a bloody nose.[41]

The victim did not return to work for the remaining several hours of his shift.[42] The immediate workplace area was closed for perhaps 30-45 minutes to remove the victim’s blood from the floor.[43] As it turned out, the Amazon Center did not miss any relevant deadlines “because other areas of the facility absorbed the work.”[44]

Hill was initially charged with the state law offense of misdemeanor assault and battery.[45] The state prosecutor, however, noting the absence of any Virginia hate crimes statutory protection based on sexual orientation,[46] asked that the federal government assume the prosecution of the case.[47] A federal grand jury then indicted Hill under the Hate Crimes Prevention Act.[48] The indictment charged Hill with attacking the defendant “because of”[49] the victim’s “actual and perceived sexual orientation.”[50]

As to the necessary relation between Hill’s act and the interstate commerce power, the indictment charged that Hill “interfered with commercial activity in which [the victim] was engaged at the time of the conduct,”[51] and “otherwise affected interstate and foreign commerce.”[52]

The court majority in the Hill case addressed both the facial and the as-applied legitimacy of the Hate Crime Prevention statute pursuant to the Commerce Clause.[53] The majority noted the specific attention of Congress to the scope of its Commerce Clause power in constitutionally justifying the Hate Crimes Prevention Act.[54] Congress had distinguished hate crimes from other, non-hate-based violent crimes.[55] Among the findings of Congress was that hate-motivated violent crimes “affect interstate commerce in many ways.”[56]

In particular, the congressional findings located an interstate nexus referring to the impeded and the forced movement across state lines of victimized members of the specified targeted groups;[57] to the prevention of targeted group members from fully participating in the interstate economy;[58] to the crossing of state lines by hate crime perpetrators;[59] to the use by perpetrators of the “channels, facilities, and instrumentalities of interstate commerce;[60] and to violence perpetrated by using objects that have themselves traveled in interstate commerce.[61] Whether any one, or some combination of, these factors, to one extent or another, could suffice to establish a constitutionally satisfactory link between a given hate crime and interstate commerce was left unaddressed by Congress.

What seems clear, however, is that Congress intended to extend the coverage of the Hate Crimes Prevention Act to the full scope of its power to regulate interstate commerce. That is, there was no congressional intent to adopt a restricted scope for the Hate Crime Prevention Act by requiring a stronger connection between the underlying conduct and interstate commerce than would be constitutionally necessary.[62]

The court in Hill then concluded that “when Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interfaces with or affects that activity.”[63] Based on this understanding of the law and the facts recited above, the court saw no error in the jury’s finding that Hill’s conduct “interfered with”[64] or “affected”[65] the “preparation of packages for interstate sale and shipment, and therefore ‘affect[ed] commerce over which the United States has jurisdiction.’”[66]

That the Amazon facility’s operations were in some respects unaffected, or only minimally affected, did not dictate a contrary result, as “Congress may regulate interference with commerce, even if the effect of the interference on interstate commerce in an individual case is ‘minimal.’”[67] In as-applied challenges, the courts are to look not to the interstate commerce significance or insignificance of the particular event in question, but to the impact on interstate commerce of an aggregated class of offending acts, taken together.[68]

Certainly, the hate-motivated battery in Hill need not be thought of as, itself, some sort of economic or commercial transaction.[69] Instead, the Hate Crimes Prevention Act’s explicit interstate commerce nexus requirements, or its jurisdictional hook, “ensures that the statute regulates only economic violent criminal conduct, not . . . noneconomic violent criminal conduct.”[70] Thus the Hate Crimes Prevention Act, as properly interpreted, requires that the victim have been engaged at the time of the offense in economic or commercial activity.[71] It does not purport to grant a general federal license to prosecute all hate-motivated crimes, however private the circumstances.[72]

The Hill case, however, also produced a dissenting opinion on the merits of the Commerce Clause nexus issue.[73] Judge Agee determined, in dissent, that Hill’s prosecution fell outside the boundaries of congressional power to legislate crimes pursuant to its interstate commerce regulatory power.[74] Judge Agee found the Hate Crime Prevention Act’s explicit jurisdictional provision,[75] or its jurisdictional nexus, to extend the reach of the statute beyond the legitimate scope of the Commerce Clause.[76] Judge Agee determined that the defendant’s “bias-motivated punch . . . [was] not an inherently economic activity and therefore not within the scope of Congress’ Commerce Clause authority.”[77] His crucial focus was thus on the defendant’s motive and his conduct, in and of itself. A bias-motivated battery, presumably, might be committed partly from bias, and partly from a desire to prevent the victim from engaging in interstate commerce. In such a case the perpetrator might himself therein be affecting interstate commerce. But not all bias-motivated batteries need have, in themselves, any such relation to interstate commerce.

Judge Agee’s underlying concern was with the potential illimitability of the federal Commerce Clause. In his words:

To allow Congress to exercise its Commerce Clause power over the non-economic offense of a bias-motivated punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.[78]

Judge Agee argued that permitting the Hate Crime Prevention Act’s jurisdictional statute to cover the case at bar would encompass any bias-motivated battery “as long as the government can show that the victim [as distinct from the defendant] was ‘engaged’ in some sort of economic activity.”[79] Given what he saw in this case as an “attenuated”[80] linkage between the regulated conduct and interstate commerce,[81] Judge Agee feared for the constitutional distinction “between what is truly national and what is truly local.”[82]

Overall, the Hill case at least suggests most of the significant issues associated with the limits of the congressional interstate commerce power. The crucial underlying problem, however, is that not all of the issues present in the Hill case are consciously and expressly recognized, let alone consciously addressed. This Article takes up the important issues, both recognized and latent, in Hill below.[83] Any understanding of these issues, however, depends upon a sense of the relevant Supreme Court case law. Thus, a highly selective, stage-setting presentation of the most crucially relevant Supreme Court jurisprudence follows.

II.  The Supreme Court Cases: Source of Answers and of Unresolved Questions

However much the Supreme Court may have later vacillated between expansive and narrowing approaches to the scope of the interstate commerce power, the seminal case of Gibbons v. Ogden[84] seems to endorse a broad understanding of, respectively, the scope and meaning of commerce,[85] the scope and meaning of interstate commerce,[86] and the scope and meaning of regulation of interstate commerce.[87] The mark left by the Gibbons opinion in each of these respects has been, despite changing judicial emphases, indelible.

 The Gibbons opinion attempted to describe the distinctive nature of the commerce that is, for constitutional purposes, interstate in character. In the words of Chief Justice Marshall, distinctively interstate commerce does not encompass the commerce that “is completely internal [to a single state], which is carried on between man and man in a State, or between different parts of the same State . . . .”[88] This language, however, tells us only what interstate commerce is not.

When Chief Justice Marshall expressed the idea of interstate more positively, he set a durable precedent by referring to the ideas of commerce extending to, concerning, or, crucially, “affecting,”[89] more than one state.[90] The language of affecting more than one state has become an apparently essential element of the Commerce Clause cases. The language of affecting interstate commerce in some sufficient fashion, or to some sufficient degree, recurs throughout crucial cases including Wickard v. Filburn,[91] Heart of Atlanta Motel, Inc. v. United States,[92] Katzenbach v. McClung,[93] United States v. Lopez,[94] United States v. Morrison,[95] Gonzales v. Raich,[96] and National Federation of Independent Business v. Sebelius.[97] The Court’s continuing reliance on the concept of affecting, or concerning, interstate commerce leads, however, into important general and specific[98] problems of vagueness and of policy uncertainty.

The Court’s inquiries into the idea of affecting interstate commerce become inseparable from questions of adding up, or aggregating, many instances of activities that each, by themselves, have only a trivial effect on interstate commerce. The Court’s willingness to aggregate individually minimal effects on interstate commerce is famously developed in Wickard v. Fillburn.[99]

In Wickard, an individual farmer exceeded his allotted wheat production quota, with the excess wheat then being variously used on his own local farm, rather than being sold on the interstate wheat market.[100] The farmer was by himself a price-taker, rather than a price-maker, in the wheat market. But the Court noted the existence of many other farmers similarly situated under the farm price support program in question.[101] Based on the logic of aggregation, the Court declared:

That [Filburn’s] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.[102]

The idea of aggregating a number of individually insignificant cases into a collectively sufficient effect on interstate commerce was then later pursued against individual businesses in the racial discrimination cases,[103] in Gonzales,[104] in Sebelius,[105] and in the Hobbs Act robbery case of Taylor v. United States.[106] Unfortunately, the idea of aggregation in the Commerce Clause area is fraught with a number of unaddressed, and certainly unresolved, problems.[107]

The Court has also attempted to draw Commerce Clause boundary lines through recourse to some sort of distinction between activity, or initiative-taking by the relevant party, and passivity, or something like ordinary behavior apart from any distinctive association with interstate commerce. While this distinction is most familiar from Sebelius, which dealt with the  Affordable Care Act,[108] the active-passive distinction, or something akin thereto, also occurs elsewhere.[109] This inevitably controversial and contested distinction is also briefly explored below.[110]

Finally, the Court has acknowledged that in many of the most interesting cases, the Commerce Clause power is really not primarily about commerce. The power to regulate interstate commerce is, in such cases, instead seized upon opportunistically by Congress as an expedient means of promoting some element of morality, equality, justice, or personal dignity. Regulating the flow of goods, services, or persons in interstate commerce may be a genuine, but secondary, concern to the legislators in such cases. Among the Supreme Court cases in which the Commerce Clause power was successfully invoked largely to promote morality, equality, justice, or personal dignity are the foreign and interstate lottery ticket suppression case of Champion v. Ames,[111] the sex trafficking case of Caminetti v. United States,[112] the multiple spouse case of Cleveland v. United States,[113] and of course the civil rights cases in the line of Heart of Atlanta Motel.[114]

These broad, morality-focused cases may be at some distance from the core Commerce Clause cases, which are more economicefficiency focused.[115] We explore below, however, the possibility that a moral focus may substantially contribute to our best understanding of how to decide the close Commerce Clause cases more generally.[116] For the present, though, the Supreme Court cases cited above suggest some of the largely insoluble boundary area problems inherent in the Commerce Clause cases. These dimensions include problems of general and specific vagueness and ill-definedness;[117] controversy and contestability in applying the concepts of affecting and concerning;[118] reliance on the perennially controversial distinction between active and merely passive connections to interstate commerce;[119] and a number of largely unacknowledged problems associated with the idea of aggregation.[120] These elements of the boundary problems of Commerce Clause jurisprudence are addressed below.

III.  Diagnosing the Commerce Clause Boundary Area Problems

The underlying dynamic in Commerce Clause controversies often reflects differences as to the relevance and the weight of ideas such as federalism, efficiency, democracy, decentralization, plurality and dispersion of authority, and local experimentalism.[121] These differences, however, have manifested themselves in the Commerce Clause cases in distinctive recurring problems.

First are the problems we may classify under the heading of vagueness. Vagueness, for our purposes, is a matter of some number of borderline,[122] or better, boundary area cases of the proper application of a term.[123] While we might say that in a sense, all ordinary language is vague,[124] vagueness clearly is also a matter of degree.[125] In our context, commerce and interstate commerce are both relatively vague, but the Constitution plainly aspires to a logic of bivalence,[126] or binary classification. Commerce and non-commerce are thought to jointly exhaust the field. They are not thought to be mere segments on a broad continuous spectrum with numerous degrees.

Judicially attempting to fit relatively vague ideas such as commerce or interstate commerce into bivalent categorieseither within or beyond the authorized constitutional scope—will often seem arbitrary and futile. But as we consider below, it may still be possible to adjudicate close Commerce Clause cases by reference to the presence or absence of any overriding interests[127] or fundamental rights[128] that may be lurking in the case at hand, even if the effect of the decision in that case is largely symbolic or expressive in character.[129]

The courts may attempt to reduce the vagueness of commerce and of interstate commerce by applying some form of original intent or original meaning theory.[130] And such approaches are sometimes endorsed by Commerce Clause scholars today.[131] But even if we endorse some inevitably controversial specific version of originalism, the remaining indeterminacies and apparently unresolvable disputes must limit our progress in usefully pinning down the vagueness of the terms in question.[132]

Even if we could resolve the vagueness issues associated with commerce and interstate commerce themselves, we would then have to confront the Court’s familiar jurisprudence of conduct that, in some sufficient way, affects or concerns interstate commerce.[133] Here, we set aside any issues of vagueness, and focus instead on substantive, policy-based uncertainties as to how to best understand and apply terms such as affects or concerns.

Whether an activity affects, and perhaps sufficiently affects, commerce or interstate commerce is not a matter of dictionary entries, but of substantive policy choices. A number of the issues are, by analogy, present as well in the use of affects, concerns, and similar concepts in the classic work of John Stuart Mill on the boundaries of the legitimate exercise of individual liberty.[134]  As it turns out, even the celebrated philosopher John Stuart Mill could not apply the concepts of affect or concern with any consistency. It would be surprising if a shifting, multi-member body such as the Supreme Court could regularly fare any better.

Thus Mill seeks at points to draw the boundary line for permissible government regulation of a person’s activity at what “concerns” the self, as presumably distinct from activity that concerns others.[135] Perhaps more realistically, Mill sometimes shifts to a focus on activity that “more particularly concerns” others.[136] In a related additional qualification, Mill also sometimes seeks to crucially distinguish between effects of conduct on others that are direct and effects of conduct on others that are merely indirect.[137]

But then, perhaps recognizing the dubiousness of this direct-indirect effect distinction, Mill shifts from a focus on affecting others to a focus more specifically on affecting their interests,[138] or affecting their interests “prejudicially.”[139] Mill also seeks to avoid the direct-indirect effect distinction, as well as the problem of identifying interests, by sometimes drawing the crucial line at conduct that “seriously affects”[140] others. Mill does not, however, consistently draw the crucial line at serious harms, as opposed to harms that may be less serious.[141] In fact, Mill sometimes qualifies his harm principle to allow for the regulation of activities that merely pose a “a definite risk of damage” to others.[142] The inescapable bottom line is thus simply one of confusion.

Unavoidably, the Court in the Commerce Clause cases must by analogy either confront each of the problems above that afflict Mill’s parallel discussion, or fail in its responsibilities. As it turns out, the Court often relies, for example, on the plainly doubtful and not obviously significant direct-versus-indirect effect on interstate commerce distinction.[143] And where the Court is concerned about effects on interstate commerce, it has often seemed to require that the effects be somehow “substantial.”[144] But the Court has also then admitted that “our case law has not been clear whether an activity must ‘affect’ or ‘substantially affect’ interstate commerce in order to be within Congress’ power to regulate . . . .”[145]

Overall, the Court has not managed the idea of affecting commerce or interstate commerce any more consistently than did John Stuart Mill in the context of the limits to liberty. A final possibility, though, often arises in the cases in which a statute invokes the Commerce Clause power, but not to its full extent, leaving some constitutionally regulable activities outside the scope of the statute.[146] In such cases, typically some object must have been used in interstate commerce. And this statutory requirement has typically moved the courts to distinguish between the active use and the mere passiveuse of the entity in interstate commerce.[147]

The attempts by courts to clarify such cases by means of an active-passive use distinction often fail immediately, based on arbitrary descriptions of the specific case circumstances. Consider, for example, an act of arson that reaches only one small building among a complex of other buildings, where only the latter buildings are thought to be actively used in interstate commerce. Perhaps these latter buildings could not possibly have been affected by the fire in question. Will it usually be obvious whether the arsonist’s hostility is directed toward one particular building among related other buildings? Isn’t the arsonist’s real hostility sometimes directed toward the entire building complex, or toward the institution or idea it represents?[148]

Beyond such largely arbitrary line-drawing among the possible targeted properties, these cases typically take an elaborate inventory of the ways an entity might be said to be used in interstate commerce, including sometimes marginal matters such as telephone communications or media use; highway use; various forms of insurance; building leases and their terms; the full range of all the activities on one or more of the properties; property use or mere availability to out-of-state guests; property ownership structure; and even connections to utility services.[149] Some of these considerations are then said to fall within the scope of active use of the relevant property in interstate commerce, and others to amount only to passive, and thus statutorily insufficient, use.[150]

Unavoidably, characterizing a particular feature of an arson-targeted entity as active or as passive with respect to its use in interstate commerce will typically be largely arbitrary. So will a determination that some set of such activities adds up to a somehow sufficient connection to interstate commerce. But the real problem is that the active-passive use distinction unavoidably sends us down a deeply controversial path. There is a substantial and unresolved debate among the philosophers on the usefulness of the broader active-passive distinction in various contexts.[151]

Of course, the Court is not bound to recognize a relevant philosophical controversy, as it is similarly not bound in the Commerce Clause cases by the relevant conclusions of the economists. Thus, the Court in Sebelius argued that “[t]o an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction . . . would not have been lost on the Framers”[152] The problem in our more general context, though, is that the Framers had no clear intent as to how to draw, in practice, any distinction between actively using versus merely passively using some object or property in interstate commerce. If the courts continue to attempt to rely on this distinction, any private party with any inclination to do so can strategically adjust their behavior in such a way as to either minimally qualify or else not qualify as actively using a property in interstate commerce.[153]

A final, and typically unrecognized, crucial boundary area problem involves the Court’s jurisprudence of aggregation, in which small units are added up to create an overall substantial effect on interstate commerce.[154] The Commerce Clause aggregation jurisprudence is central not only to Wickard,[155] but to Morrison,[156] Raich,[157] Taylor,[158] and thence to the recent hate crime case discussed above, United States v. Hill.[159]

To this point, however, the Court has not meaningfully addressed several of the most basic problems attending the aggregation process in the Commerce Clause cases. First, the Court has never determined in a definite way whether the aggregation of intrastate activities can consist partly or even entirely of non-economic or non-commercial activities.[160] Second, the Court has referred merely to a class of activities that is to be aggregated for purposes of determining whether a substantial effect on interstate commerce exists.[161] But the Court has not meaningfully addressed how to define or limit even a clearly economic class of activities. Classes of relevantly similar activities are not self-identifying. Classes can be defined at various degrees of specificity or generality,[162] by either Congress or by the courts.

As merely one example of this class definition problem, consider the problem of criminal attempts. Can criminal attempts, as well as completed offenses, be somehow aggregated in such a way as to substantially affect interstate commerce, on a reasonable congressional judgment?[163] More broadly, can the somehow relevantly similar other class members be merely hypothetical? Or else perhaps likely to exist, over some appropriate period of time? Or perhaps just reasonably possible? And, crucially, how would these numbers of class members change over time if the relevant statute either were or were not enforced pursuant to the Commerce Clause?[164] Class membership, however defined, need not be fixed over time and unresponsive to enforcement policies. Any enforcement or lack of enforcement of a statute may create incentives, or disincentives, for persons to join the class in question.

More broadly, the Court’s aggregation in arriving at a substantial effect on interstate commerce faces what is classically called the Sorites problem.[165] The Sorites problem notices that in many binary classification problems, very small changes in the numbers do not allow us to make any principled change in how we classify the case in question.[166] Thus if a person with, say, 117 hairs is bald, so, we seem bound to say, is someone with 118. The problem is that there is no distinct further incremental point—say, then moving from 118 to 119 hairs—at which the person becomes non-bald. But some persons, inescapably, are not bald. In the Commerce Clause area, too, there will be no principled reason to find that some single additional incident or some additional single actor has somehow transformed a previously insubstantial effect into a substantial effect on interstate commerce. If 117 farmers produce only an insubstantial effect on interstate commerce, so, presumably, would 118. But equally clearly, some number of farmers suffices for a substantial collective effect on interstate commerce.

A related further problem addresses the status of universalizing principles, or more familiarly, the status of what if everyone did that? tests for any proposed principles. What if Congress or the courts were to find a substantial effect on interstate commerce based on the outcome if everyone somehow similarly situated to the defendant—perhaps everyone in general—acted as the defendant did? This would be done not in order to show that the defendant acted in a morally wrong manner,[167] but for constitutional interpretive and policymaking purposes. Would finding a given actor to violate a federal statute based on the substantial effect on interstate commerce that would result if everyone at some point acted similarly be reasonable?

Overall, then, the courts attempting to address the close cases as to the scope and meaning of the federal Commerce Clause power face daunting problems as to vagueness;[168] the debates over affecting commerce;[169] active versus passive involvement in interstate commerce;[170] and the proper meaning and limits of aggregating in order to reach a somehow substantial effect on interstate commerce.[171] Jointly, these largely unresolved problems threaten to impeach the claim that any particular resolution of a close Commerce Clause case is more reasonable than deciding the case in some contrary fashion. Below, we briefly suggest a value-sensitive alternative approach to the close Commerce Clause power cases.

IV.  The Role of Fundamental Rights and Legal Symbolism

Let us think of a close Commerce Clause case not so much as one which is merely controversial, or which would divide judges, but as one in which the arguments for opposed judicial outcomes seem to an observer to be largely non-comparable, or else nearly equal in their opposed overall strength, even if the contending sides emphasize different considerations. Given this non-comparability or else very rough equality in the perceived strength of the opposed arguments, it seems likely that in some cases, deciding the case in favor of, or against, the exercise of Commerce Clause authority will not make much overall total value difference.[172] But particularly if the two judicial outcomes stem from very different assumptions, predictions, and values, it is also quite possible that deciding even a close case wrongly may be costly.

The problem, as we have seen throughout, is that the Supreme Court’s Commerce Clause jurisprudence generates, and then leaves unresolved and often unrecognized, a number of basic interpretive problems. Until such interpretive problems are somehow resolved, how can courts most responsibly address and resolve the close cases?

One useful general strategy would be to consider whether the close Commerce Clause case at issue is one that distinctively evokes what has been called the symbolic[173] or expressive[174] functions of lawmaking and adjudication. In a broad sense, symbolic or expressive law and adjudication recurs throughout the law, including freedom of speech;[175] equal protection and respect;[176] Establishment Clause cases;[177] tax policy;[178] and of course in expressivist theories of criminal punishment.[179]

Symbolism and expressivism can play a useful role as well in adjudicating the close Commerce Clause cases. Some such cases will distinctively call for the embrace of symbolic or expressive considerations, and other such cases much less so, or not at all. Where it is appropriate, courts should attend to and invoke any distinctively relevant symbolic considerations in deciding the close Commerce Clause cases.

Given the limited predictability of the real consequences of much Commerce Clause-based legislation, it is important to recognize that incorporating respect for symbolic value in adjudication need not always aspire to provable change in any underlying behavior. Nor need symbolically oriented adjudications amount merely to a trivial consolation prize for a superficially winning party. Sometimes there is real public value in making a statement, in getting an institution officially on the record in some context, or in fulfilling a public need to “send a message.”[180] Judicially sending a symbolic or expressive message thus need not be aimed, at least primarily, at producing any provable material change in the world.[181]

Some, but not all, of the close Commerce Clause cases will have some loose association with fundamental constitutional rights and values, or even with widely recognized basic human rights.[182] In those close Commerce Clause cases, the mere presence of fundamental constitutional or human rights concerns, even in the absence of their actual violation, should ordinarily tip balance in favor of at least symbolically or expressively acknowledging and endorsing the basic right in question.

Consider again in this context our exemplary hate crime case of United States v. Hill.[183] Hill involved a physical assault and battery, motivated by hostility on the basis of sexual orientation.[184] In this instance, the nature of the charge and the available range of penalties under Virginia state law could not begin to match those available under the Federal Hate Crimes Prevention Act.[185] Particularly under these circumstances, especially including victimization on the basis of sexual orientation,[186] along with the sheer public physical battery itself,[187] a national-level symbolic and expressive statement is generally appropriate. Combined with the crucial element of explicit discrimination on the basis of sexual orientation, the public physical battery in Hill and the fundamental status of physical safety suggest the value of an authoritative judicial denunciation, and a clear symbolic statement through a prosecution at the national level.

But not every close Commerce Clause case will evoke any sense of lurking fundamental constitutional or human rights, or the basic values underlying such rights, whether any such rights are actually violated in the given case or not. Some close Commerce Clause cases are instead merely near the limits of the congressional power to, for example, remove barriers to the free and uninhibited flow of manufactured goods. Even the leading case of Wickard v. Filburn involved only Filburn’s alleged violation of his own agreement to limit his wheat production in exchange for price subsidies,[188] with no fundamental constitutional or human rights, or their underlying basic values, anywhere on the horizon. No such rights are typically relevant even to broad, important, health-related statutes and regulations, as in, for example, the area of a legally specified uniformity in food nutrition labeling.[189] Many Commerce Clause-based regulations are mostly about ordinary commerce, and may even have, overall, neither significantly favorable nor significantly unfavorable effects even on commerce.[190]

Normally, close cases that do not implicate the values underlying any fundamental constitutional or human right should take seriously the widely recognized values and advantages of a meaningfully federalist system. In those close cases, the values of federalism, dispersion and decentralization of authority, welfare efficiency, pluralism, community, local democracy, and state-level experimentation should normally prevail.[191] Where no fundamental constitutional or human right or their underlying values are implicated in a close Commerce Clause case, the limiting values of federalism should thus ordinarily control.[192]

Conclusion

In the various close Commerce Clause cases, the courts must confront, or more typically ignore, multiple problems of vagueness; of what kinds and degrees of effects on interstate commerce are to be constitutionally required in a given case; of how to meaningfully distinguish between active and passive involvement with interstate commerce; and of when and how to aggregate minimal effects on interstate commerce into a somehow substantial overall effect. Until the courts can arrive at some appropriate clarification of these constitutional uncertainties, courts are better advised to instead direct their focus elsewhere when addressing the many close Commerce power cases.

Specifically, courts in such cases should consider whether the case circumstances detectably evoke a sense of the values underlying any fundamental constitutional or human right. Violent bias-motivated attacks present the clearest such cases, and those cases should ordinarily be held to fall within the scope of the Commerce Clause power. Such cases afford the courts an opportunity to at least symbolically or expressively validate, if not to materially advance, national-level policy values of the highest order. On the other hand, if a close Commerce Clause case evidently bears no detectable relationship to any fundamental constitutional or human right, or to the values crucially underlying such rights, the courts should normally accommodate instead the values and interests served by federalism, and hold the case to fall outside the scope of the Commerce Clause power.

 


     [*].    Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law.

 [1]. U.S. Const. art. I, § 8, cl. 3.

 [2]. See, e.g., Edward Samuel Corwin, The Constitution and What It Means Today 67 (14th ed. 1978) (“The Commerce Clause comprises . . . the direct source of the most important peace-time powers of the National Government . . . .”); Steven D. Smith, The Constitution and the Pride of Reason 51, 59 (1998); Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State 38, 41 (2016); Richard A. Epstein, Constitutional Faith and the Commerce Clause, 71 Notre Dame L. Rev. 167, 167 (2014) (“[T]he Commerce Clause . . . in its New Deal incarnation expanded the powers of the federal government far beyond any level that it had previously held.”); Calvin H. Johnson, The Dubious Enumerated Power Doctrine, 22 Const. Comment. 25, 30 (2005) (“In the last seventy years, an explosive expansion of the power to regulate commerce . . . has found a wide range of appropriately national activities to be legitimate.”); John Paul Stevens, Should We Have a New Constitutional Convention?, N.Y. Rev. (Oct. 11, 2012), https://www.nybooks.com/articles/
2012/10/11/should-we-have-new-constitutional-convention [https://perma.cc/Y56K-FZ87] (referring to “[t]he central importance of the Commerce Clause”). The scope of the congressional interstate commerce clause regulatory power is elaborately explored in Geoffrey R. Stone et al., Constitutional Law 196–254 (8th ed. 2018).

 [3]. United States v. Ballinger, 395 F.3d 1218, 1229 (11th Cir. 2005) (en banc).

 [4]. See id. (referring to 18 U.S.C. § 43).

 [5]. See id. (referring to 18 U.S.C. § 228).

 [6]. See id. (referring to 18 U.S.C. § 1073).

 [7]. See id. (referring to 18 U.S.C. § 1958).

 [8]. See id. (referring to 18 U.S.C. § 2101).

 [9]. See id. (referring to 18 U.S.C. § 2101).

 [10]. See id. (referring to 18 U.S.C. § 2102).

 [11]. See id. (referring to 18 U.S.C. § 2118).

 [12]. See id. (referring to 18 U.S.C. § 2261).

 [13]. See id. (referring to 18 U.S.C. § 2261A).

 [14]. See id. (referring to 18 U.S.C. § 2262).

 [15]. See id. (referring to 18 U.S.C. § 2423).

 [16]. 18 U.S.C. §§ 113, 2250, as discussed in United States v. Ambert, 561 F.3d 1202, 1209–10 (11th Cir. 2009); United States v. Howell, 552 F.3d 709, 711 (8th Cir. 2009).

 [17]. 18 U.S.C. § 178(2), as discussed in United States v. Le, 902 F.3d 104, 109–11 (2d Cir. 2018).

 [18]. 18 U.S.C. § 229(a)(1), as discussed in Bond v. United States, 572 U.S. 844, 844 (2014) (reversing the criminal conviction).

 [19]. 18 U.S.C. § 247, as discussed in United States v. Ballinger, 395 F.3d 1218, 1221 (11th Cir. 2005) (en banc); United States v. Corum, 362 F.3d 489, 492 (8th Cir. 2004); United States v. Roof, 225 F. Supp. 3d 438, 452 (D.S.C. 2016).

 [20]. 18 U.S.C. § 248(a)(2), as discussed in Zhang Jinrong v. Chinese Anti-Cult World Alliance, 314 F. Supp. 3d 420, 423 (E.D.N.Y. 2018).

 [21]. 18 U.S.C. § 249 (a)(2), as discussed in United States v. Hill, 927 F.3d 188, 193 (4th Cir. 2019); United States v. Beckham, No. 3:18-cr-00075-1 2019 U.S. Dist. LEXIS 111582, at *1 (M.D. Tenn. July 3, 2019); United States v. Mason, 993 F. Supp. 2d 1308, 1316 (D. Or. 2014); United States v. Jenkins, 909 F. Supp. 2d 763, 763 (E.D. Ky. 2012); United States v. Mullet, 868 F. Supp. 2d 618, 620 (N.D. Ohio 2012) (recognizing that scissors and hair clippers used in an assault had moved in interstate commerce; and that the postal system and motor vehicles were also used in connection with the assault in question).

 [22]. 18 U.S.C. § 844(i), as discussed in United States v. Mahon, 804 F.3d 946, 949 (9th Cir. 2015); United States v. Laon, 352 F.3d 286, 288 (6th Cir. 2003); United States v. Lamont, 330 F.3d 1249, 1250 (9th Cir. 2003); United States v. Rayborn, 312 F.3d 229, 231 (6th Cir. 2002); United States v. Rea, 300 F.3d 952, 959 (8th Cir. 2002); United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1207 (10th Cir. 2001); United States v. Dascenzo, 152 F.3d 1330, 1301 (11th Cir. 1998).

 [23]. 18 U.S.C. § 922(g)(i), as discussed in United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011); United States v. Urbano, 563 F.3d 1150, 1153 (10th Cir. 2009).

 [24]. 18 U.S.C. §§ 924 (c)(1)(A), 924(c)(1)(C), as discussed in United States v. Gillespie, 452 F.3d 1183, 1185 (10th Cir. 2006).

 [25]. 18 U.S.C. § 1951, as discussed in United States v. Lynch, 437 F.3d 902, 909 (9th Cir. 2006).

 [26]. 18 U.S.C. § 1959(b)(2), as discussed in United States v. Aquart, 912 F.3d 1, 17–18 (2d Cir. 2018); United States v. Ulmana, 750 F.3d 330, 336–37 (4th Cir. 2014); United States v. Mejia, 545 F.3d 179, 203 (2d Cir. 2008).

 [27]. 18 U.S.C. § 2251(a), as discussed in United States v. Humphrey, 845 F.3d 1320, 1321 (10th Cir. 2017).

 [28]. See infra Part I.

 [29]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

 [30]. See id. at 193–94.

 [31]. See infra Part II. For the Court’s ongoing attempts to establish what should count as ‘commercial’ in the context of commercial speech as distinct from non-commercial speech, see, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976); Cent. Hudson Gas & Elec. Co. v. PSC, 447 U.S. 557 (1980). A copy of even an intensely political book or newspaper, however, is still commercial in the sense of commonly being an item intentionally moving in interstate commerce.

 [32]. See infra Part III.

 [33]. See infra Part III.

 [34]. See infra Part IV.

 [35]. Questions of the necessary kind and degree of causal relationship between a bias motive and the harm inflicted have been addressed in various legal contexts, with no single approach to the necessary causation emerging as generally applicable. One court has surveyed interpretations of the phrase “because of,” including as “a motivating factor,” “a substantial reason,” “a significant factor,” and more stringently, “solely because of,” or else a “but-for” cause of the harm. For discussion, see United States v. Jenkins, 120 F. Supp. 3d 650, 655 (E.D. Ky. 2013). Jenkins itself, a hate crimes case, appears to distinguish between “a” substantial factor and “the” substantial factor, and to require that the prohibited bias be “the factor that motivates the conduct . . . .” Id. at 658. Of course, an act may have two or more jointly necessary causes, or there may be no single necessary or indispensable cause, as the act could have two or motivating causes, each of which would by itself suffice to cause the act, with no single one of these causes itself being necessary. For background, see generally Tony Honore, Necessary and Sufficient Conditions in Tort Law, in Philosophical Foundations of Tort Law 363 (David G. Owen ed., 1997).

 [36]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019).

 [37]. Pub. L. No. 111-84, §§ 4701–13, 123 Stat. 2190, 2833–44 (2009) (codified at 18 U.S.C. § 249(a)(2) (2018)) [hereinafter Hate Crimes Prevention Act] (rider to Defense Authorization Act).

 [38]. Hill, 927 F.3d at 193; see also id. at 194.

 [39]. See id. at 193.

 [40]. Id.

 [41]. See id. at 194.

 [42]. See id.

 [43]. See id.

 [44]. Id. One might ask, however, whether interstate commerce could be sufficiently affected by an act that stretches Amazon’s local distributing capacity thinner by forcing Amazon to call upon other workers, or upon reserve workers, to take on additional tasks, whether at the immediate expense of their other tasks or not.

 [45]. See id.

 [46]. See id.

 [47]. See id.

 [48]. See id. (referring to the federal hate crimes statute in supra note 37).

 [49]. See id. For the lack of consensus on the precise import of “because of” in this and similar contexts, see supra note 35.

 [50]. Id.

 [51]. Id.

 [52]. Id.

 [53]. See id. at 196.

 [54]. See id.

 [55]. See id.

 [56]. Id. (internal citation omitted).

 [57]. See id.

 [58]. See id.

 [59]. See id.

 [60]. See id.

 [61]. See id.

 [62]. See id. For background discussion, see Russell v. United States, 471 U.S. 858, 860–62 (1985); Jones v. United States, 529 U.S. 848, 856–57 (2000) (declining to impute an exceptionally broad intended scope of coverage to Congress in enacting the federal arson statute).

 [63]. Hill, 927 F.3d at 201.

 [64]. Id.

 [65]. Id.

 [66]. Id.

 [67]. Id. at 202 (citing Taylor v. United States, 136 S. Ct. 2074, 2081 (2016) (Hobbs Act robbery and firearm case)).

 [68]. See id.

 [69]. For the reliance on this distinction, see United States v. Morrison, 529 U.S. 598, 617 (2000) (Violence Against Women Act case).

 [70]. Hill, 927 F.3d at 204, 205. For discussion of the typical value, but not the invariable decisiveness, of an explicit statutory jurisdictional “hook” or linkage to interstate commerce, see id. at 208.

 [71]. See id. at 205.

 [72]. See id.

 [73]. See id. at 210 (Agee, J., dissenting).

 [74]. See id. (Agee, J., dissenting).

 [75]. 18 U.S.C. § 249(a)(2)(B)(iv)(I) (2018).

 [76]. See Hill, 927 F.3d at 210 (Agee, J., dissenting).

 [77]. See id. (Agee, J., dissenting).

 [78]. Id. at 223 (Agee, J., dissenting).

 [79]. Id. (Agee, J., dissenting) (citation omitted).

 [80]. Id. at 224 (Agee, J., dissenting).

 [81]. See id. (Agee, J., dissenting).

 [82]. Id. at 225 (Agee, J., dissenting) (quoting United States v. Morrison, 529 U.S. 598, 617–18 (2000)).

 [83]. See infra Part III.

 [84]. Gibbons v. Ogden, 22 U.S. 1 (1824).

 [85]. See id. at 189–90 (defining “commerce” as extending far beyond the actual traffic in or exchange of commodities).

 [86]. See id. at 193–95.

 [87]. See id. at 195–200 (defining “regulation” as extending far beyond prohibition, as distinct from a broader power of imposing any sort of rule regarding the object in question).

 [88]. Id. at 194.

 [89]. See id. at 194–95 (using the language of “extend to or affect other states;” of “concerns which affect the States generally;” and of “affect other states”).

 [90]. See id.

 [91]. See Wickard v. Filburn, 317 U.S. 111, 124 (1942) (home consumption of home-produced wheat).

 [92]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964) (holding that a racially segregated Georgia hotel sufficiently affected interstate commerce).

 [93]. See Katzenbach v. McClung, 379 U.S. 294, 302 (1964) (using “affect other states” language as well as that of “exerts a substantial economic effect on interstate commerce”).

 [94]. See United States v. Lopez, 514 U.S. 549, 559 (1995) (discussing gun possession in school zone case and referring to “activities that substantially affect interstate commerce”). For an exceptionally useful and concise overview of the Lopez case on what constitutes commerce and interstate commerce, see Deborah Jones Merritt, Commerce!, 94 Mich. L. Rev. 674, 746–47 (1995).

 [95]. See United States v. Morrison, 529 U.S. 598, 612 (2000) (federal Violence Against Women Act case) (discussing the “effects” and the “substantial effects” language in Lopez).

 [96]. See Gonzales v. Raich, 545 U.S. 1, 19–20 (2005) (discussing the scope of the federal power to regulate local marijuana cultivation and addressing the aggregated effects of local cultivation on interstate drug prices and the overall “substantial effect” on the national market).

 [97]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (discussing the Affordable Care Act individual mandate and referring to aggregation of similar activities that jointly “substantially affect . . . interstate commerce”). The Sebelius case also illustrates the frequent attempts by the courts to resolve Commerce Clause power cases through some sort of distinction between a party’s activity as opposed to that party’s passivity in the relevant respect. See id. at 553–55.

 [98]. The question of how much of an effect on interstate commerce is actually required is notoriously unresolved as among merely potential effects, slight actual or probable effects, and significant or substantial effects, whether actual or likely. See United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

 [99]. See Wickard v. Filburn, 317 U.S. 111, 127–28 (1942).

 [100]. See id. at 114–15.

 [101]. See id. at 127.

 [102]. Id. at 127–29.

 [103]. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 300–01 (1964).

 [104]. See Gonzales v. Raich, 545 U.S. 1, 19, 22 (2005).

 [105]. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (plurality opinion) (“Congress’s power . . . is not limited to regulation of an activity that by itself substantially affects interstate commerce, but also extends to activities that do so only when aggregated with similar activities of others.”).

 [106]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016) (referring not to any individual criminal activity, but to “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce” and to a “‘class of activities’ that in the aggregate substantially affect interstate commerce”).

 [107]. See infra Part III.

 [108]. See Sebelius, 567 U.S. at 553–55.

 [109]. See, e.g., Jones v. United States, 529 U.S. 848, 859 (2000); Russell v. United States, 471 U.S. 858, 861 (1985).

 [110]. See infra Part III.

 [111]. Champion v. Ames (The Lottery Case), 188 U.S. 321, 327–28 (1903) (discussing the interstate transportation of foreign lottery tickets as, supposedly, “confessedly injurious to the public morals”).

 [112]. Caminetti v. United States, 242 U.S. 470, 491 (1917) (referring to “the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses”).

 [113]. Cleveland v. United States, 329 U.S. 14, 19 (1946) (holding that the interstate commerce power “may be used to defeat what are deemed to be immoral practices,” despite the resemblance in the actual underlying federal legislative motive to the exercise of state police powers).

 [114]. See, e.g., Heart of Atlanta Motel v. United States , 379 U.S. 241, 250, 256–57 (1964) (referring respectively to the “fundamental object” of vindicating “personal dignity;” to “immoral and injurious use” of the channels of interstate commerce; and to “legislating against moral wrongs” as, on a mere rational basis review, clearly permissible aims under the Commerce Clause).

 [115]. This is despite the inevitable broader federalism issues. See Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342 (1914) (discussing the permissibility of federal regulation of intrastate rail freight rates where necessary to the proper regulation of interstate rates).

 [116]. See infra Part IV.

 [117]. See infra notes 122132 and accompanying text.

 [118]. See infra notes 133145 and accompanying text.

 [119]. See infra notes 146153 and accompanying text.

 [120]. See infra notes 154167 and accompanying text.

 [121]. For background references, see Geoffrey R. Stone et al., Constitutional Law 177–81 (8th ed. 2018); see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016).

 [122]. See Ray Sorenson, Vagueness, Stan. Encyclopedia Phil. (Apr. 5, 2018), https://plato.
stanford.edu/entries/vagueness [https://perma.cc/UMA3-ZMLA].

 [123]. See id. The philosophers’ debate whether any boundary case has a genuinely right classification—for example, either bald, or else not bald—even if that right answer is unknowable to us. For this debate, see generally Timothy Williamson, Précis of Vagueness, 57 Phil. & Phenomenological Res. 921 (1997) (referring to Timothy Williamson, Vagueness (1994)); Timothy Williamson & Peter Simons, Vagueness and Ignorance, 66 Proc. Aristotelian Soc’y 145 (1992); Timothy Williamson, Wright on the Epistemic Conception of Vagueness, 56 Analysis 39 (1996). More broadly, see Timothy A.O. Endicott, Vagueness in Law 57–75  2000).

 [124]. See Bertrand Russell, Vagueness, 1 Australasian J. Psych. & Phil. 84, 84 (1923).

 [125]. See id. at 88.

 [126]. For background, see Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Calif. L. Rev. 509, 516 (1994).

 [127]. See generally Delia Graff Fara, Shifting Sands: An Interest Relative Theory of Vagueness, 28 Phil. Topics 45 (2000).

 [128]. See Keith C. Culver, Varieties of Vagueness, 54 U. Toronto L.J. 109, 111 (2004). For a sense of Dworkin’s moral right-oriented approach to legal vagueness, see generally Ronald Dworkin, No Right Answer?, in Law, Morality & Society: Essays in Honour of H.LA. Hart 58 (Clarendon Press ed. 1977).

 [129]. For elaboration, see infra Part IV.

 [130]. See, e.g., Gibbons v. Ogden, 22 U.S. 1 (1824) for the historical intent theory adopted by Chief Justice Marshall throughout the case.

 [131]. See generally Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1 (2010) (discussing the then contemporary meaning of “commerce” as not confined narrowly to economic matters, but as also including social interactions beyond business or trade that pose collective action problems); Randy E. Barnett, Jack Balkin’s Interaction Theory of “Commerce, 2012 Ill. L. Rev. 623 (discussing the then contemporary usage of “commerce” as, in practice, not including even economic production, let alone social interaction more broadly); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101 (2001) (arguing “commerce” originally meant something akin to the exchange of goods and services); Richard A. Epstein, The Proper Scope of the Commerce Power, 73 Va. L. Rev. 1387 (1987); Robert G. Natelson & David Kopel, Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Mich. L. Rev. First Impressions 55, 56 (2010) (discussing the contemporary understandings of “commerce” in both ordinary and legal contexts as encompassing “mercantile trade and traditionally associated activities” as the primary meaning). For a  reading of a nearly contemporaneous essay by David Hume that offers no unequivocal evidence either way, see generally David Hume, Of Commerce, in Selected Essays 154 (Stephen Copley & Andrew Edgar eds., Oxford Univ. Press 2008).

 [132]. See supra note 131. Fittingly, Dr. Samuel Johnson’s A Dictionary of the English Language, as of 1755, offers both a relatively broad and a relatively narrow understanding of the meaning of “commerce.” See Samuel Johnson, A Dictionary of the English Language 41718 (1755), available at https://johnsonsdictionaryonline.com/commerce-noun [https://perma.cc/UF9Y-5TPG]. To the extent that the disputes focus on differences between economic and noneconomic affairs, see David M. Driesen, The Economic/Noneconomic Activity Distinction Under the Commerce Clause, 67 Case W. Res. L. Rev. 337, 338 (2016) (“Scholars agree that Lopez and Morrison offer no guidance about how to apply the economic/noneconomic distinction, leaving lower courts adrift.”).

 [133]. See supra notes 8997 and accompanying text.

 [134]. See generally John Stuart Mill, On Liberty & Utilitarianism (Wordsworth 2016) (1859).

 [135]. See id. at 15, 16, 83; see also id. at 87 (referring to “self-regarding conduct” and to “purely personal conduct”).

 [136]. Id. at 78.

 [137]. See id. at 79, 81, 83.

 [138]. At least without their valid consent. See id. at 14, 78, 81, 97.

 [139]. Id. at 78, 79, 97. For a classic discussion of the distinction between affecting others and affecting their interests, see J.C. Rees, A Re-Reading of Mill On Liberty, in Limits of Liberty: Studies of Mill’s On Liberty 87, 93 (Peter Radcliff ed., 1966).

 [140]. Mill, supra note 134, at 84; see also id. at 15 (referring to causing “evil” to others).

 [141]. See id. at 16 (focusing on “harm” to others).

 [142]. Id. at 85, 97. For a sense of the critical accounts of these distinctions and their value, see David O. Brink, Mill’s Progressive Principles 173–90 (2013); John Gray, Mill On Liberty: A Defence 48–57 (2d ed. 1996) (critiquing the approach of Rees, supra note 139); Dale E. Miller, J.S. Mill 117–32 (2010); Jonathan Riley, Mill On Liberty 98–102 (1998); C.L. Ten, Mill On Liberty 52–67 (1980); David O. Lyons, Liberty and Harm to Others, in Mill’s On Liberty: Critical Essays 115 (Gerald Dworkin ed., 1997); Ben Saunders, Reformulating Mill’s Harm Principle, 125 Mind 1005-06 (2016) (emphasizing consent or the lack of consent, as opposed to harm).

 [143]. See, e.g., United States v. Lopez, 514 U.S. 549, 557–58 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

 [144]. See, e.g., United States v. Morrison, 529 U.S. 598, 609, 612, 615; Lopez, 514 U.S. at 558–59 (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)).

 [145]. Lopez, 514 U.S. at 559; see also United States v. Lee, 834 F.3d 145, 150–51 (2d Cir. 2016).

 [146]. See, e.g., supra note 22; Jones v. United States, 529 U.S. 848, 856–57 (2000); Russell v. United States, 471 U.S. 858, 860–62 (1985); see also Bond v. United States, 572 U.S. 844, 866 (2014) (on the courts’ reluctance to broadly interpret a federal criminal statute to impinge upon matters traditionally allocated to state regulation, given the value of federalism, unless Congress has made a “clear statement” to the contrary).

 [147]. See, e.g., supra note 146.

 [148]. Consider the disputes over the proper characterizations of targeted buildings and of organizational relationships. For background, see United States v. Laton, 352 F.3d 286, 298–30 (6th Cir. 2003) (citing United States v. Rayborn, 312 F.3d 229, 234 (6th Cir. 2002); United States v. Terry, 257 F.3d 366, 369–70 (4th Cir. 2001); United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001)); United States v. Lamont, 330 F.3d 1249, 1255–57 (9th Cir. 2003); United States v. Rea, 300 F.3d 952, 960–61 (8th Cir. 2002); United States v. Tush, 151 F. Supp. 2d 1246, 1250–1254 (D. Kan. 2001).

 [149]. See supra note 148; see also United States v. Corum, 362 F.3d 489, 493 (8th Cir. 2004) (“It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.”). Realistically, the degree of any judicial tendency to stretch the idea of interstate commercial linkage may reflect, in some cases, the sheer gravity of any charged criminal activity.

 [150]. See supra notes 147148.

 [151]. See, e.g., Jonathan Glover, Causing Death and Saving Lives 95–97 (1990) (discussing different sorts of omissions and passivities); Peter Davson-Galle, Killing and Relevantly Similar Letting Die, 15 Applied Phil. 199 (1998); Helga Kuhse, Critical Notice: Why Killing Is Not Always Worse—And Is Sometimes Better—Than Letting Die, 7 Cambridge Q. Healthcare Ethics 371 (1998); Xiaofei Liu, A Robust Defense of the Doctrine of Doing and Allowing, 24 Utilitas 63 (2012); E.J. Lowe, Active and Passive Euthanasia: An Objection, 55 Phil. 550 (1980); Joseph Raz, The Active and the Passive, 71 Aristotelian Soc’y Supplementary Volume 211 (1997); Fiona Woollard & Frances Howard-Snyder, Doing vs. Allowing Harm, Stan. Encyclopedia of Phil. (Nov. 1, 2016), https://plato.stanford.
edu/entries/doing-allowing [https://perma.cc/HKP5-M9ST]. Very roughly, the more one cares about actual consequences, as distinct from the state of mind of a party, the less value in general will one tend to see in the act versus passivity or omission distinction. Of course, we can also imagine omissions or passivities that are clearly intended to result in great harm.

 [152]. Nat’l Fed’n Indep. Bus. v. Sebelius, 567 U.S. 519, 555 (2012).

 [153]. However rarely any entity might be thus motivated, given the availability of insurance and of state-level arson statutes.

 [154]. The leading aggregation case is Wickard v. Filburn, 317 U.S. 111 (1942). See generally Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719 (2003) (discussing Filburn and its legacy).

 [155]. See Wickard, 317 U.S. at 127–28.

 [156]. See United States v. Morrison, 529 U.S. 598, 613 (2000).

 [157]. See Gonzales v. Raich, 545 U.S. 1, 17–22 (2005).

 [158]. See Taylor v. United States, 136 S. Ct. 2074, 2080 (2016).

 [159]. See United States v. Hill, 927 F.3d 188, 194 (4th Cir. 2019) (noting Hill’s battery as not in itself affecting the Amazon Center’s ability to meet any of its measured deadlines or quotas).

 [160]. See Morrison, 529 U.S. at 613. The degree of deference due from courts to congressional findings, or the effects of the absence of such congressional findings, in the context of aggregation issues also varies noticeably. See id. at 614.

 [161]. See, e.g., Raich, 545 U.S. at 22; Taylor, 136 S. Ct. at 2080; see also Perez v. United States, 402 U.S. 146, 154 (1971) (“Where the class . . . is within the reach of the federal power, the courts have no power to ‘excise, as trivial, individual instances of that class.’” (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)).

 [162]. See John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 Mich. L. Rev. 174, 179–80 (1998). Of course, the very idea of a “substantial” effect, whether through aggregation or not, partakes of vagueness in unusual measure. See generally R. George Wright, Substantial Burdens in the Law, 46 Sw. L. Rev. 1 (2016) (exploring this vagueness at length).

 [163]. See Taylor, 136 S. Ct. at 2081–82 (attempt to rob prosecuted under the Hobbs Act).

 [164]. There were obviously, in 1942, many U.S. wheat farmers. Some percentage of them participated in the relevant price support and quota program. And some unspecified percentage of those farmers may have acted in a way either loosely or else closely similar to Roscoe Filburn in Filburn. And every Commerce Clause ruling is of course an incentive to change or maintain one’s present conduct.

 [165]. For background, see Dominic Hyde & Diana Raffman, Sorites Paradox, Stan. Encyclopedia of Phil. (Mar. 26, 2018), https://plato.stanford.edu/entries/sorites-paradox [https://perma.cc/YFQ4-DR2G].

 [166]. See id.

 [167]. For universalizability, or a “what if everyone did that?” question, as a possible test for the morality of particular acts, see Immanuel Kant, Groundwork of the Metaphysics of Morals 71 (H.J. Paton trans. 1948) (Harper ed. 1964) (1785); see also Brad Hooker, Ideal Code, Real World 188–89 (2000)) (focusing on the expected value of rules if they were internalized by the overwhelming majority); Kent Bach, When to Ask, “What If Everyone Did That?, 37 Phil. & Phenomenological Res. 464 (1977); Michael Robbins, The Fallacy of “What If Everybody Did That?, 6 Sw. J. Phil. 89 (1975). For a broader discussion of aggregation problems in general, see Iwao Hirose, Moral Aggregation (2015); Larry S. Temkin, Rethinking the Good: Moral Ideals and the Nature of Practical Reasoning 23-161 (2015).

 [168]. See supra notes 122132 and accompanying text.

 [169]. See supra notes 133145 and accompanying text.

 [170]. See supra notes 146153 and accompanying text.

 [171]. See supra notes 154167 and accompanying text.

 [172]. If we cannot readily decide whether to go out for the evening or else to stay home, it may be that taking either option would likely produce roughly equally overall value results.

 [173]. The classic citation in the political science literature is Murray Edelman, The Symbolic Uses of Politics (2d ed. 1985). For a discussion of one element of our focus herein, see Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool For Criminal Enforcement?, 80 B.U. L. Rev. 1227, 1247–48 (2000).

 [174]. For discussion, see Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503, 1504 (2000) (“At the most general level, expressive theories tell actors . . . to act in ways that express appropriate attitudes toward various substantive values.”) (discussing “the pervasively expressive character of much of the law”); Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 Or. L. Rev. 339, 339 (2000) (“A strict focus on sanctions . . . obscures how law can otherwise influence behavior. Legal Theorists sometimes posit that law affects behavior expressively’ by what it says rather than by what it does.”); Cass R. Sunstein, On The Expressive Function of the Law, 144 U. Pa. L. Rev. 2021, 2022 (1996) (“Many people support law because of the statements made by law, and disagreements about law are frequently debates over the expressive content of law.”). If the idea of an expressive function of the law is understood too broadly, however, the idea loses its distinctive interest value. See Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. Pa. L. Rev. 1363, 1364 (2000); Steven D. Smith, Expressivist Jurisprudence and the Depletion of Meaning, 60 Md. L. Rev. 506, 511 (2001) (“[T]he claim that law expresses meaning is . . . so universally recognized that in itself it can hardly amount to any distinctive jurisprudential perspective . . . .”).

 [175]. See, e.g., the emotionally charged flag burning protest case of Texas v. Johnson, 491 U.S. 397, 410–11 (1989).

 [176]. See Anderson & Pildes, supra note 174, at 1504.

 [177]. See, e.g., Alex Geisinger & Ivan E. Bodensteiner, An Expressive Jurisprudence of the Establishment Clause, 112 Penn. St. L. Rev. 77 (2007).

 [178]. See, e.g., Kitty Richards, An Expressive Theory of Tax, 27 Cornell J.L. & Pub. Pol’y 301 (2017).

 [179]. For the classic source, see generally Joel Feinberg, The Expressive Function of Punishment, 49 Monist 397 (1965). For discussion, see generally Bernard E. Harcourt, Joel Feinberg On Crime and Punishment: Exploring the Relationship Between the Moral Limits of the Criminal Law and the Expressive Function of Punishment, 5 Buff. Crim. L. Rev. 145 (2001); Susan A. Bandes, All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty, 116 Mich. L. Rev. 905 (2018).

 [180]. Beale, supra note 173, at 1254.

 [181]. Something akin to this point, and the underlying distinction among kinds of symbolic adjudications, is discussed in McAdams, supra note 174, at 339 n.2 (citing Lewis A. Kornhauser, No Best Answer?, 146 U. Pa. L. Rev. 1599, 1624–25 (1998)). We assume, of course, that the Commerce Clause case in question does not actually involve any actionable violation of any fundamental constitutional right. Any such case should be adjudicated on precisely those fundamental constitutional right grounds.

 [182]. For background, see generally James Griffin, On Human Rights (2008); James W. Nickel, Making Sense of Human Rights (1987); Henry Shue, Basic Rights (2d ed. 1996).

 [183]. United States v. Hill, 927 F.3d 188 (4th Cir. 2019); see also infra Part I.

 [184]. See Hill, 927 F.3d at 193. Consider also the notorious racially-based hate crime case of United States v. Roof, 225 F. Supp. 3d 438 (D.S.C. 2016) (applying the federal Church Arson Act).

 [185]. See Hill, 927 F.3d at 194. But again, there could still be justification for a Commerce Clause-based federal prosecution, for national-level symbolic and expressive purposes, even if the federal and state level and penalties were similar.

 [186]. For an authoritative account of the effects of governmental sexual orientation discrimination under an equal protection and substantive due process analysis, see generally Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

 [187]. For the classic exposition of the relationship of basic physical safety, bodily integrity in public spaces, and bodily security to even minimal well-being, see Thomas Hobbes, Leviathan 183–86 (C.B. MacPherson ed., 1968) (1651). For human rights references to physical security of the person, see Griffin, supra note 182, at 193 (“We have a right to life and to some form of security of person.”); Nickel, supra note 182, at 86; Shue, supra note 182, at 20 (“[P]eople have a basic right to physical security—a right that is basic not to be subjected to murder, torture, mayhem, rape, or assault.”); see also Jeremy Waldron, Security as a Basic Right (After 9/11), in Global Basic Rights 207, 211 (Charles R. Beitz & Robert E. Goodin eds., 2009).

 [188]. See Wickard v. Filburn, 317 U.S. 111 (1942).

 [189]. See Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2535 (codified as amended at 21 U.S.C. § 343 (2018)).

 [190]. For a broad critique, see generally Omri Ben-Shahar & Carl E. Schneider, More Than You Wanted to Know: The Failure of Mandated Disclosure (2014); R. George Wright, The Compelled Commercial Speech Cases: Why Not Just Flip a Coin?, 71 Mercer L. Rev. (forthcoming 2020). For a number of entertaining examples from other areas of federal law, most with a Commerce Clause basis, see Jason Pye, 19 Ridiculous Federal Criminal Laws and Regulations, Freedom Works (January 14, 2016), https://www.freedomworks.org/content/19-ridiculous-federal-criminal-laws-and-regulations [https://perma.cc/S67P-TGP2]. More broadly, see generally Mike Chase, How to Become a Federal Criminal: An Illustrated Handbook for the Aspiring Offender (2019) (drawing from https://twitter.com/crimeaday [https://perma.cc/PJ8P-UK6S]). Consider also whether the entirely intrastate Delhi Sands Flower-Loving Fly is somehow related to the values underlying fundamental constitutional or human rights and could not be adequately protected by the State of California. See Nagle, supra note 162 (discussing the diverging opinions in Nat’l Assn. of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)).

 [191]. See Geoffrey R. Stone et al., Constitutional Law 175–81 (8th ed. 2018); see also A.E. Dick Howard, The Values of Federalism, 1 New Eur. L. Rev. 143 (1992); Robert P. Inman, Federalism’s Values and the Value of Federalism (Nat’l Bureau of Econ. Research, Working Paper No. 13735, 2008).

 [192]. While it is certainly possible that we could all be mistaken about fundamental constitutional or human rights, epistemic humility is a virtue not only for federal decisionmakers, but for state-level decisionmakers as well. For useful discussion, see generally Guido Calabresi & Eric S. Fish, Federalism and Moral Disagreement, 101 Minn. L. Rev. 1 (2016). And while elements of our own proposal herein are certainly vague, it is important to recognize that the overall consequences of vagueness may, depending upon context, be harmful; modest; or even beneficial. The vagueness of terms such as “fundamental constitutional rights” and “recognized constitutional rights” can, if desired, be reduced by any authoritative listing of such rights. Persons can certainly continue to debate which rights should be on the authoritative list, but the adopted list will not count as itself damagingly vague. Of course, referring to such rights as “in the neighborhood,” or “lurking,” or being loosely suggested but not violated in a given case invokes deliberately vague ideas. However, vagueness in this context is not only inevitable, but deeply valuable; it distinctively sensitizes courts to the possibility of, in a proper case, symbolically advancing the most important moral and legal values of which we know: those of recognized basic rights.

 

The Climate Crisis Is a Human Security, Not a National Security, Issue – Postscript (Comment) by Maryam Jamshidi

Postscript | Environmental Law
The Climate Crisis Is a Human Security,
Not a National Security, Issue

by Maryam Jamshidi*

Vol. 93, Postscript (November 2019)
93 S. Cal. L. Rev. Postscript 36 (2019)

Keywords: Climate Change, National Security

Climate change is one of the first issues in recent memory for which there has been public debate about treating a pressing matter as a national security concern. As recently as the September 20, 2019 Climate Strike in New York City, for example, activist Greta Thunberg described the climate crisis as an “emergency.[1] Like much of the grassroots rhetoric on climate change, her demand gestures toward the sort of existential threat national security is designed to address. It is but one amongst a host of good reasons for treating the climate crisis as a security concern. Indeed, in the past, the U.S. government appeared to have recognized this and treated climate change as a national security issue as a result.[2] There were and continue to be equally good reasons, however, to worry about applying the national security label to climate change, which have largely been absent from public debate. These reasons include various threats to liberal democracy endemic to the national security sector, such as broadening and bolstering executive authority, reducing government transparency, increasing government secrecy, eroding civil liberties, and marginalizing disadvantaged groups. They also include the limited effectiveness of traditional national security solutions, which  emphasize military-oriented strategies that adapt to rather than tackle the underlying causes of climate change.

This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change.[3] While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.

Part I of this Article briefly examines calls to treat climate change as a national security issue, specifically from within the grassroots climate change movement, and canvasses the benefits of doing so. Part II explores the downsides to securitizing climate change and demonstrates how a human security approach resolves these concerns. Overall, this Article accepts the view that a security-oriented attitude towards climate change is vital to meaningful action on the issue. It takes the position, however, that this approach must both align with liberal democratic values and facilitate solutions for mitigating the climate crisis. These changes to the prevailing security paradigm are unlikely to come from the state itself, which is invested in maintaining a state-centered view of security. It must, instead, be led by civil societyparticularly the climate change movement, which has the most incentive to take action on these issues.

I.  Climate Change as a National Security Issue

Over the last decade, various citizen-led groups, including 350.org, the Sunrise Movement, and the Extinction Rebellion, have drawn attention to climate change and focused on pushing corporations, governments, and intergovernmental institutions to act on the issue.[4] In raising the alarm bells, these and other groups have often used the crisis, war-framing rhetoric associated with the national security sector. Though they have not specifically invoked the term “national security,” various climate campaigners, like Bill McKibben and Naomi Klein, have described climate change as an extreme crisis requiring immediate action.[5] Other members of the climate movement have more explicitly aligned themselves with a national security framework. In 2015, the Sunrise Movement’s Twitter account tweeted: “‘The Pentagon says that #climate change poses immediate risks to our national security. We should act like it. #WaronClimateChange . . . .”[6] The 350.org website has applauded the U.S. military’s decision to securitize climate change and pushed for other government branches to do the same.[7] Still, other groups have urged application of particular national security laws and policies to climate change. The Youth Climate Strike organization has, for example, called for a national emergency declaration on the climate crisis.[8]

Both a normative and practical logic supports these demands. Most obviously, a national security approach is appropriate given the scope of the problem and the resources required to address it. According to an October 2018 report from the U.N.’s Intergovernmental Panel on Climate Change (IPCC), the impact of 2.7 degrees Fahrenheit of warming, which could be reached in as little as 10 years,[9] would lead to rises in sea levels, increases in ocean acidification, species loss and extinction, pervasive drought in some regions, and heavy precipitation in others.[10] The report predicts increased warming will erode human health, contribute to poverty, exacerbate food and water shortages, and negatively impact global economic growth.[11] To address these issues, “pathways limiting global warming to 1.5°C with no or limited overshoot . . . require rapid and far-reaching transitions in energy, land, urban, and infrastructure . . . . These system transitions are unprecedented in terms of scale . . . .”[12]

Treating climate change as a national security matter also creates legal opportunities for streamlining government responses. Among other things, it expands presidential authority to plan and invest in climate change adaptation within the United States, specifically at military installations.[13] More broadly, it gives the president latitude to respond to overseas humanitarian crises created by climate change, organize the military to deal with future climate threats abroad, and enter into sole executive agreements, like the 2015 Paris Agreement, that Congress is unlikely to ratify for partisan reasons.[14]

Finally, focusing on the national security dimensions of climate change may yield support from those holding stronger feelings about national security than the environment.[15] As scholars have argued, one of the most effective ways of generating attention is to describe an issue in national security terms; this often leads to increased “public focus, institutional power, and mobilization of resources . . . .[16]

Despite the good reasons for treating climate change as a security issue, the conventional national security frame also has a number of downsides, including various threats to liberal democracy and conceptual presumptions about the best strategies for addressing the climate crisis. Human security can help mitigate these failings by placing people, instead of the state, at the center of climate initiatives, as discussed in the next section.

II.  Securitizing Climate Change: Mitigating Costs through Human Security

When it comes to national security’s downsides, the erosion of democratic principles tops the list. Generally, over the last seventy years, national security has become synonymous with increased executive branch power, and diminished judicial and Congressional authority, all of which has harmed American democracy and the rule of law.[17] It has led to pervasive government secrecy;[18] the creation of secret evidence, secret law, and secret courts;[19] increased militarization of domestic government activities, including law enforcement;[20] and substantial restrictions on human and civil rights that have had adverse consequences for minority and immigrant communities. The government’s recent climate change policy, which has been defined by a national security framework, has been shaped by these trends. It has been almost exclusively dominated by intelligence gathering and various military initiatives dealing with climate-related issues.[21] In fact, in responding to recent natural disasters caused by climate change,[22] federal and state governments have relied on secrecy and militarized strategies,[23] which have had negative effects on marginalized communities. After Hurricane Katrina in 2005, for example, various government officials depicted minority black and brown communities as the enemy, used this rhetoric to justify government failures to meet their needs, and kept secret information vital to these communities in exercising their rights.[24]

On top of these democratic downsides, a traditional national security approach also exacerbates the disparities created by climate change. The concept of national security developed in response to national threats, like nuclear weapons, that had roughly the same impact on all people. Climate change, by contrast, has and will continue to have disparate impacts on different populations.[25] In particular, within the United States, climate change will have some effect on all regions,[26] but is expected to have the most negative consequences for poor and minority populations.[27] With its emphasis on the nation as a whole, as opposed to individual communities, a conventional national security framework is unlikely to address these differential costs.

Finally, national security places conceptual limitations on addressing climate change. Most solutions to national security problems prominently feature a militarized or military-focused approach. These strategies are less suited to the global coordination, as well as social, economic, and political transformations, necessary to mitigate climate change. When it comes to tackling the crisis, a mix of policies relating to human well-being, economic development, and environmental protection must be adopted by all states.[28] A predominantly military approach is more likely to emphasize armed conflict and the security of military installations over these development-oriented policies.[29] In particular, a national security framing increases the chances military force, not diplomacy, will be used against countries that are recalcitrant in addressing the climate crisis[30]a result that undermines, rather than bolsters, coordination between states.

The concept of human security avoids these disadvantages while preserving the benefits of securitizing climate change. Initially articulated by the U.N. in 1994, human security has two main components.[31] First, it requires that states protect people from chronic dangers, like hunger, disease, oppression, and environmental degradation.[32] Second, it demands that governments work to reduce substantial disruptions to people’s daily lives.[33] This “durable” approach emphasizes the inter-relationship between various components of security, including economic, food, health, environmental, personal, community, and political security.[34] A human security framework places the onus on governments to work towards achieving all these elements of security.[35] This obligation extends to meeting the human security needs of the international community, more broadly.[36]

Rather than blunting the benefits of a security frame, human security strengthens them by connecting security directly to people’s survival and flourishing. As a result, a human security paradigm is likely to sustain and even increase public attention to security-related issues, as well as the institutional focus and resources that come with it. It also rectifies national security’s many shortcomings. This includes challenging assumptions that security is best and most effectively achieved through unilateral executive action. Of course, human security does not entirely prohibit these sorts of activities, which are reflected in various laws facilitating presidential engagement on climate change. Nevertheless, it challenges assumptions that the president should always have exclusive authority over national security matters. It suggests, instead, that security is something inter-governmental and non-governmental organizations, as well as grassroots civil society actors, social movements, and influential individuals, have a role in creating and sustaining.[37] To facilitate this public involvement in national security decisionmaking, human security privileges government transparency over secrecy.

Significantly, human security can help mitigate national security’s civil and human rights problems. In the national security context, derogations from these rights are often considered permissible for security’s sake.[38] At times, governments have even used national security to justify emergency measures typically disallowed in liberal democracies because of their threat to individual liberty.[39] Under a human security approach, by contrast, human and civil rights are paramount.[40] Focusing on the rights of people, both as the objects and providers of security, challenges the notion that states of emergency and other suspensions of liberal, democratic norms are the best or only way of achieving security.[41]

As for national security’s strategic limitations, a human security approach yields three distinct benefits. First, unlike national security, human security de-emphasizes military strategies and emphasizes investment in development initiatives. In particular, it promotes reductions in military budgets and reallocation of funds to development work. Though human development and security are distinct, poverty and social inequality undermine the physical, material, and political wellbeing of individuals.[42] In many countries, like the United States, military spending eats up resources necessary to tackling these pressing issues.[43] By linking security to sustainable development, rather than to the military’s might, human security points dollars toward the former.[44]

Second, human security facilitates the integrated, interstate solutions necessary to address climate change. When it comes to tackling the climate crisis, experts agree that richer states must shoulder more of the economic burden and provide a range of support to poorer states.[45] Domestically, a similar redistribution of resources is necessary to realize environmental justice and ensure the most vulnerable are protected from climate change.[46] These cooperative strategies are precisely the sort of activities supported by human security, which emphasizes the connections between people and their responsibilities to one another.

Third, human security’s people-centered approach provides a basis not only for top-down, but also bottom-up approaches to climate change.[47] Addressing climate change requires both government regulation and decentralized action by citizens. As Naomi Klein has argued,

[t]here is a clear and essential role for national plans and policiesto set overall emission targets that keep each country safely within its carbon budget . . . . But if these transitions are to happen as quickly as required, then the best way to win widespread buy-in is for the actual implementation of a great many of the plans to be as decentralized as possible.[48]

Of course, to be meaningful, a human security approach to climate change must be reflected in government policy. Even with a change of administration, achieving that goal will require overcoming multiple challenges. They include confronting intra-government actors invested in taking a military-first approach to climate change; building substantial political will within government to take public demands about climate change’s securitization seriously; and ensuring those demands remain rooted in a cosmopolitan notion of human security, rather than a nationalistic or nativist one.

The first step, however, is to understand how human security leads to better outcomes than a traditional national security framework, both for democracy, as well as for efforts to solve the climate crisis. The climate change movement would be well-served to prioritize this issue sooner rather than laterlest its calls to treat climate change as a serious security threat are accepted and government policies are adopted that do more harm than good.

 


     [*]. Assistant Professor of Law, University of Florida Levin College of Law. For helpful comments and conversations, I am grateful to Sarah Bishop, Seth Endo, Anastacia Greene, Andrew Hammond, J. Benton Heath, Merritt McAlister, Paul McGovern, Mark Nevitt, Aziz Rana, Andrew Winden, and Ehsan Zaffar. Thank you to the editors at the Southern California Law Review for their thoughtful review of this piece. All errors are my own.

 [1]. Kalhan Rosenblatt, Teen Climate Activist Greta Thunberg Delivers Scathing Speech at U.N., NBC News (Sept. 23, 2019, 9:28 AM), https://www.nbcnews.com/news/world/teen-climate-activist-greta-thunberg-delivers-scathing-speech-u-n-n1057621 [https://perma.cc/975U-JWFB].

 [2]. Mark P. Nevitt, The Commander in Chief’s Authority to Combat Climate Change, 37 Cardozo L. Rev. 437, 443–44 (2015). The administration of President Donald Trump has moved away from treating climate change as a national security issue. Michael T. Klare, The Surprising Ally in Fighting Global Warming, Daily Beast (Sept. 21, 2019, 5:07 AM), https://www.thedailybeast.com/the-surprising-ally-in-fighting-global-warming-the-pentagon [https://perma.cc/N67W-LM6G].

 [3]. While some have advocated for treating climate change as a human security issue, they have not considered competing arguments in favor of a national security framing. See, e.g., Karen O’Brien, Asuncion Lear St. Clair, & Berit Kristoffersen, The Framing of Climate Change: Why It Matters, in Climate Change, Ethics, and Human Security 3, 4 (Karen O’Brien et al. eds., 2010). In particular, they have failed to consider the costs and benefits of each approach, a gap which this Essay attempts to fill.

 [4]. “Falter”: In New Book, Bill McKibben Asks If the Human Game Has Begun to Play Itself Out, Democracy Now! (Apr. 15, 2019), https://www.democracynow.org/shows/2019/4/15 [https://perma.
cc/8GRE-6PH5].

 [5]. A Natural Solution to the Climate Disaster, The Guardian, (Apr. 3, 2019, 1:00 AM), https://www.theguardian.com/environment/2019/apr/03/a-natural-solution-to-the-climate-disaster [https://perma.cc/7SVZ-S3LW].

 [6]. Sunrise Movement (@sunrisemvmt), Twitter (Jan. 20, 2015, 6:55 PM), https://twitter.com/
sunrisemvmt/status/557733287649882112 [https://perma.cc/97QG-CXH7].

 [7]. Anna Goldstein, Climate Change and National Security: The Low Down on the National Security Strategy, 350.org (Dec. 21, 2017), https://350.org/climate-change-national-security-the-low-down-on-the-national-security-strategy [https://perma.cc/97SZ-BMPP].

 [8]. Youth Climate Strike, Action Network, https://actionnetwork.org/event_campaigns/youth-climate-strike [https://perma.cc/57MG-S4T5].

 [9]. Intergovernmental Panel on Climate Change, Global Warming of 1.5°C, Summary for Policymakers 6 (2018), https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_
SPM_version_report_LR.pdf [https://perma.cc/8SVL-QTKB] [hereinafter 2018 IPCC Report].

 [10]. Id. at 9–11.

 [11]. Id.

 [12]. Id. at 17.

 [13]. Nevitt, supra note 2, at 473–76.

 [14]. Id. at 477–83, 499–502.

 [15]. Sarah E. Light, Valuing National Security: Climate Change, the Military, and Society, 61 UCLA L. Rev. 1772, 1778 (2014).

 [16]. Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1705 (2011).

 [17]. David Rudenstein, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order 7 (2016).

 [18]. Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within, 115 Yale L.J. 2314, 2319 (2006).

 [19]. Rudenstein, supra note 17, at 7–8.

 [20]. Lisa Grow Sun & RonNell Anderson Jones, Disaggregating Disasters, 60 UCLA L. Rev. 884, 917–18 (2013).

 [21]. U.S. Dep’t of Defense, 2014 Climate Change Adaptation Roadmap (2014), http://ppec.
asme.org/wp-content/uploads/2014/10/CCARprint.pdf [http://web.archive.org/web/20170127042339/
http:/ppec.asme.org/wp-content/uploads/2014/10/CCARprint.pdf]; Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879, 881, 906 (2014);

 [22]. Amina Khan, Fires, Droughts and Hurricanes: What’s the Link Between Climate Change and Natural Disasters?, LA Times (Dec. 5, 2017, 11:25 AM), https://www.latimes.com/science/sciencenow/
la-sci-sn-climate-change-natural-disasters-20170907-htmlstory.html [https://perma.cc/ZS6F-XFMY].

 [23]. Sun & Jones, supra note 20, at 886–87.

 [24]. Id. at 942.

 [25]. 2018 IPCC Report, supra note 9, at 20; David Wallace Wells, The Uninhabitable Earth: Life After Warming 132 (2019); Michelle Melton, Climate Change and National Security, Part II: How Big a Threat Is the Climate?, Lawfare (Jan. 7, 2019, 12:45 PM), https://www.lawfare
blog.com/climate-change-and-national-security-part-ii-how-big-threat-climate [https://perma.cc/J2FC-NJKS].

 [26]. Leah Burrows, From Sea to Rising Sea: Climate Change in America, Harv. U. Ctr. for Env’t (Sept. 19, 2017), https://environment.harvard.edu/news/faculty-news/sea-rising-sea-climate-change-america [https://perma.cc/5EK5-TM2C].

 [27]. Douglas Fisher, Climate Change Hits Poor Hardest in U.S., Sci. Am. (May 29, 2009), https://www.scientificamerican.com/article/climate-change-hits-poor-hardest [https://perma.cc/QTE4-VE7L].

 [28]. 2018 IPCC Report, supra note 9, at 20.

 [29]. Donald Wallace, Introduction: Security and Global Climate Change, in Climate Change, Policy and Security: State and Human Impacts 1, 10–11 (Donald Wallace & Daniel Silander eds., 2018).

 [30]. Id. at 25–26.

 [31]. United Nations Dev. Programme, Human Development Report 1994, at 22 (1994), http://hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_nostats.pdf [https://perma.cc/
9Z3J-FUJK] [hereinafter Human Development Report 1994].

 [32]. Id. at 23.

 [33]. Id.

 [34]. Id. at 24–25.

 [35]. Giorgio Shani, Introduction: Protecting Human Security in a Post 9/11 World, in Protecting Human Security in a Post 9/11 World 1, 6-7 (Giorgio Shani et al. eds., 2007).

 [36]. Rep. of the High-Level Panel on Threats, Challenges & Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565, at 21–22 (Dec. 2, 2004).

 [37]. David Andersen-Rodgers & Kerry F. Crawford, Human Security 15–16, 44–49 (2018).

 [38]. Id. at 41–42.

 [39]. Wallace, supra note 29, at 6.

 [40]. Andersen-Rodgers & Crawford, supra note 37, at 83.

 [41]. See id. at 21–30.

 [42]. Human Development Report 1994, supra note 31, at 22.

 [43]. Id. at 50.

 [44]. Id. at 58–60.

 [45]. Larry Elliott, Do More to Help Poor Nations Cope with Climate Change, IMF Tells Rich Countries, The Guardian (Sept. 28, 2017, 1:49 AM), https://www.theguardian.com/business/2017/
sep/27/do-more-to-help-poor-nations-cope-with-climate-change-imf-tells-rich-countries [https://perma.
cc/4TXK-8P8G].

 [46]. Environmental justice focuses on addressing inequalities created by environmental protection efforts in low-income and minority communities. James M. Van Nostrand, Energy and Environmental Justice: How States Can Integrate Environmental Justice into Energy-Related Proceedings, 61 Cath. U. L. Rev. 701, 702 (2014).

 [47]. Yoichi Mine, Downside Risks and Human Security, in Protecting Human Security in a Post 9/11 World, supra note 35, at 64, 67.

 [48]. Naomi Klein, This Changes Everything: Capitalism vs. the Climate 133 (2014).

An Uneasy Dance with Data: Racial Bias in Criminal Law – Postscript (Comment) by Joseph J. Avery

 

From Volume 93, Postscript (June 2019)
DOWNLOAD PDF


 

an uneasy dance with data: racial bias in criminal law

Joseph J. Avery[*]

INTRODUCTION

Businesses and organizations expect their managers to use data science to improve and even optimize decisionmaking. The founder of the largest hedge fund in the world has argued that nearly everything important going on in an organization should be captured as data.[1] Similar beliefs have permeated medicine. A team of researchers has taken over 100 million data points from more than 1.3 million pediatric cases and trained a machine-learning model that performs nearly as well as experienced pediatricians at diagnosing common childhood diseases.[2]

Yet when it comes to some criminal justice institutions, such as prosecutors’ offices, there is an aversion to applying cognitive computing to high-stakes decisions. This aversion reflects extra-institutional forces, as activists and scholars are militating against the use of predictive analytics in criminal justice.[3] The aversion also reflects prosecutors’ unease with the practice, as many prefer that decisional weight be placed on attorneys’ experience and intuition, even though experience and intuition have contributed to more than a century of criminal justice disparities.

Instead of viewing historical data and data-hungry academic researchers as liabilities, prosecutors and scholars should treat them as assets in the struggle to achieve outcome fairness. Cutting-edge research on fairness in machine learning is being conducted by computer scientists, applied mathematicians, and social scientists, and this research forms a foundation for the most promising path towards racial equality in criminal justice: suggestive modeling that creates baselines to guide prosecutorial decisionmaking.

I.  Prosecutors and Racial Bias

More than 2 million people are incarcerated in the United States, and a disproportionate number of these individuals are African American.[4] Most defendants—approximately 95%—have their cases resolved through plea bargaining.[5] Prosecutors exert tremendous power over the plea bargaining process, as they can drop a case, oppose bail or recommend a certain level of bail, add or remove charges and counts, offer and negotiate plea bargains, and recommend sentences.[6]

When it comes to racial disparity in incarceration rates, much of it can be traced to prosecutorial discretion. Research has found that prosecutors are less likely to offer black defendants a plea bargain, less likely to reduce their charge offers, and more likely to offer them plea bargains that include prison time.[7] Defendants who are black, young, and male fare especially poorly.[8]

One possible reason for suboptimal prosecutorial decisionmaking is a lack of clear baselines. In estimating the final disposition of a case, prosecutors have very little on which to base their estimations. New cases are perpetually commenced, and prosecutors must process these cases quickly and efficiently, all while receiving subpar information; determining what happened and when is a matter of cobbling together reports from victims, witnesses, police officers, and investigators. In addition, prosecutors must rely on their own past experiences, a reliance that runs numerous risks, including that of small sample size bias. Given these cognitive constraints, prosecutors are liable to rely on stereotypes, such as those that attach to African Americans.[9]

II.  Predictive Analytics in Criminal Justice

The use of predictive analytics in the law can be bifurcated into two subsets. One involves policing, where what is being predicted is who will commit future crimes.[10] Embedded in this prediction is the question of where those crimes will occur. In theory, these predictions can be used by police departments to allocate resources more efficiently and to make communities safer.

Dozens of police departments around the United States are employing predictive policing.[11] Since 2011, the Los Angeles Police Department (“LAPD”) has analyzed data from rap sheets in order to determine how best to utilize police resources.[12] Chicago officials have experimented with an algorithm that predicts which individuals in the city are likely to be involved in a shooting—either as the shooter or as the victim.[13]

The second subset primarily involves recidivism. Here, we have bail decisions in which predictions about who will show up to future court dates are made.[14] Embedded in these predictions is the question of who, if released pretrial, will cause harm (or commit additional crimes).[15] This subset also includes sentencing, such that judges may receive predictions regarding a defendant’s likelihood of recidivating.[16]

The Laura and John Arnold Foundation (“Arnold Foundation”) designed its Public Safety Assessment tool (“PSA”) to assess the dangerousness of a given defendant.[17] The tool takes into account defendants’ age and history of criminal convictions, but it elides race and gender and supposed covariates of race and gender, such as employment background, where a defendant lives, and history of criminal arrests.[18] Risk assessments focusing on recidivism are consulted by sentencing courts.[19] These statistical prediction tools make use of a number of features (factors specific to a defendant) to produce a quantitative output: a score that reflects a defendant’s likelihood of engaging in some behavior, such as committing additional crimes or additional violent crimes.[20]

III.  Against Predictive Analytics in Criminal Justice

Statistical algorithms that have been used for risk assessment have been charged with perpetuating racial bias[21] and have been the subject of litigation.[22] A 2016 report by ProPublica alleging that an algorithm used in Florida was biased against black defendants received nationwide attention.[23] The subsequent debate about whether the algorithm actually was biased against black defendants pivoted on different definitions of fairness, with a specific focus on rates of false positives, true negatives, and related concepts.[24] Overall, the fear is that, at best, algorithmic decisionmaking perpetuates historical bias; at worst, it exacerbates bias. As one opponent of the LAPD’s use of predictive analytics said, “[d]ata is a weapon and will always be used to criminalize black, brown and poor people.”[25]

Professor Jessica Eaglin has argued that risk itself is a “malleable and fluid concept”; thus, predictive analytics focused on risk assessment give a spurious stamp of objectivity to a process that is agenda-driven.[26] Furthermore, Professor Eaglin argues that the agenda of these tools is one of increased punishment.

Critics also address the creation of the models. Some argue that the training data is nonrepresentative.[27] Others argue that recidivism is difficult to define[28] and that some jurisdictions are improperly defining it to include arrests, which may be indicative of little beyond police bias.[29] Still others debate which features such models properly should include.[30]

IV.  The Importance of Data for Criminal Justice Fairness

While it is important to question how data is used in criminal justice, the importance of data’s role in diminishing racial disparity in incarceration should not be underestimated. First, without robust data collection, we have no way of knowing when similarly-situated defendants are being treated dissimilarly. If we cannot clearly identify racial bias in the different stages of the criminal justice system, then we cannot fix it. And there is still a ways to go before prosecutorial data is properly organized and digitized.[31]

Second, data is essential for collaborative intelligence, which shows significant potential for improving prosecutorial decisionmaking. Prosecutors’ offices are in possession of information that can be used to form clear and unbiased baselines: hundreds of thousands of closed casefiles. Using advanced statistical and computer science methods, these casefiles can be used as a corpus from which to build a model that, based on an arresting officer’s narrative report and suggested charges, produces a prediction as to how a case would resolve if the defendant were treated race-neutrally. This is a classic machine-learning task: train an algorithm to produce a prediction function that relates case characteristics to case outcomes. This model can then be used to guide prosecutorial decisionmaking to make it more consistent (less variance across attorneys and across time) and less biased.

Algorithms will produce biased outcomes when the training data (the historical record) is biased and the algorithm is designed to maximize predictive accuracy. It should be obvious as to why this is the case: if predictive accuracy is the goal and the data is biased, then bias is a feature of the system, not a bug. In other words, bias must be taken into account if the prediction is to be accurate.

This is the reason why, in my research, I do not optimize prediction. My colleagues and I have different goals. Our models are not predictive models but “suggestive” models. One of our primary goals is to remove suspect bias from the model, bringing its suggestions into closer accord with Constitutional mandates for racially equal treatment of criminal defendants by state actors.

Can this be done? It is no easy feat, but researchers around the country are diligently working to build models that correct for suboptimal historical records.[32] Some of these approaches involve a weak version of disparate treatment in which the protected attribute (for example, race) is accessed during model training but omitted during classification.[33] Such approaches build from the recognition, long established in the scholarly community, that not only does blindness not entail fairness,[34] it often is a poor notion of fairness.[35]

Lastly, such models can themselves be used to identify racism that is endemic to the historical record or which emerges in the construction of the model. One strength of machine learning is that it is able to make connections between inputs and outputs that elude human actors. Social science long ago established that the human mind itself is a black box, and human actors have poor insight into their reasons for acting.[36] The black box of human decisionmaking, however, can be unpacked through careful use of statistics. Local-interpretable-model-agnostic explanations,[37] for instance, can be used to identify the aspects of input data on which a trained model relies as it makes its predictions, which should, in turn, offer insight into historical human reliance.[38]

CONCLUSION

When it comes to racial disparities, the U.S. criminal justice system is failing, and it has been failing for many years. In addition, charges of racial bias have been leveled against various organizations that are employing predictive analytics in their legal decisions. Scholars are right to question how data is being used. Past discrimination must not become enshrined in our machines. But movement away from data is also movement away from identification of unequal treatment, and it represents abandonment of the most promising path towards criminal justice fairness. While it is tempting for prosecutors’ offices to maintain the status quo and not augment their processes with data science, this would be a mistake. Collaborative intelligence has the potential to render prosecutorial decisionmaking more consistent, fair, and efficient.

 


[*] *. Joseph J. Avery is a National Defense Science & Engineering Graduate Fellow at Princeton University; Columbia Law School, J.D.; Princeton University, M.A.; New York University, B.A.

 [1].               Ray Dalio, Principles: Life and Work 527 (2017).

 [2]. Huiying Liang et al., Evaluation and Accurate Diagnoses of Pediatric Diseases Using Artificial Intelligence, 25 Nature Med. 433, 433 (2019), https://www.nature.com/articles/s41591-018-0335-9.pdf.

 [3]. Karen Hao, AI is Sending People to Jail—and Getting It Wrong, MIT Tech. Rev. (Jan. 21, 2019), https://www.technologyreview.com/s/612775/algorithms-criminal-justice-ai.

 [4]. Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, Bureau Just. Stat. 1 (Apr. 2018), https://www.bjs.gov/content/pub/pdf/cpus16.pdf.

 [5].               Lindsey Devers, Plea and Charge Bargaining: Research Summary, Bureau Just. Assistance 1 (Jan. 24, 2011), https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf. Plea bargaining is a process wherein a defendant receives less than the maximum charge possible in exchange for an admission of guilt or something functionally equivalent to guilt. See Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303, 131012 (2018).

 [6]. Scott A. Gilbert & Molly Treadway Johnson, The Federal Judicial Center’s 1996 Survey of Guideline Experience, 9 Fed. Sent’g Rep. 87, 88–89 (1996); Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers, 56 Stan. L. Rev. 1211, 1215, 1219–20 (2004); Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L.J. 1420, 142226 (2008); Besiki Kutateladze et al., Do Race and Ethnicity Matter in Prosecution? A Review of Empirical Studies, Vera Inst. Just., 3–4 (June 2012), https://www.vera.org/publications/do-race-and-ethnicity-matter-in-prosecution-a-review-of-empirical-studies.

 [7]. See Besiki Kutateladze et al., Cumulative Disadvantage: Examining Racial and Ethnic Disparity in Prosecution and Sentencing, 52 Criminology 514, 518, 527-537 (2014).

 [8]. See Gail Kellough & Scot Wortley, Remand for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions, 42 Brit. J. Criminology 186, 194–201 (2002); Besiki Kutateladze et al., Opening Pandora’s Box: How Does Defendant Race Influence Plea Bargaining?, 33 Just. Q. 398, 410-419 (2016).

 [9]. Decades of research at the nexus of law and psychology have identified stereotypical associations linking blackness with crime, violence, threats, and aggression. See Joshua Correll et al., The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1324-1328 (2002); Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. Personality & Soc. Psychol. 876, 889-891 (2004); Brian Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. Personality & Soc. Psychol. 181, 190-191 (2001).

 [10]. See Albert Meijer & Martijn Wessels, Predictive Policing: Review of Benefits and Drawbacks, Int’l J. Pub. Admin. 1, 2-4 (2019).

 [11].               Issie Lapowsky, How the LAPD uses Data to Predict Crime, Wired (May 22, 2018, 5:02 PM), https://www.wired.com/story/los-angeles-police-department-predictive-policing.

 [12]. Id.

 [13]. Jeff Asher & Rob Arthur, Inside the Algorithm That Tries to Predict Gun Violence in Chicago, N.Y. Times: The Upshot (June 13, 2017), https://www.nytimes.com/2017/06/13/upshot/what-an-algorithm-reveals-about-life-on-chicagos-high-risk-list.html.

 [14].               See, e.g., Public Safety Assessment: Risk Factors and Formula, Pub. Safety Assessment [hereinafter Risk Factors and Formula], https://www.psapretrial.org/about/factors (last visited June 6, 2019).

 [15]. See Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishment in an Actuarial Age 1 (2007); Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory L.J. 59, 61 (2017); Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803, 808–18 (2014).

 [16].               Melissa Hamilton, Adventures in Risk: Predicting Violent and Sexual Recidivism in Sentencing Law, 47 Ariz. St. L.J. 1, 3 (2015); Anna Maria Barry-Jester et al., The New Science of Sentencing, Marshall Project (Aug. 4, 2015, 7:15 AM), https://www.themarshallproject.org/2015/08/04/the-new-science-of-sentencing.

 [17]. About the PSA, Pub. Safety Assessment, https://www.psapretrial.org/about (last visited June 6, 2019).

 [18]. Risk Factors and Formula, supra note 14.

 [19]. Timothy Bakken, The Continued Failure of Modern Law to Create Fairness and Efficiency: The Presentence Investigation Report and Its Effect on Justice, 40 N.Y.L. Sch. L. Rev. 363, 363–64 (1996); Starr, supra note 15, at 803.

 [20]. John Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va. L. Rev. 391, 405–06 (2006).

 [21]. Solon Barocas & Andrew D. Selbst, Big Data’s Disparate Impact, 104 Calif. L. Rev. 671, 674, 678 (2016); Jessica M. Eaglin, Predictive Analytics’ Punishment Mismatch, 14 I/S: J.L. & Pol’y for Info. Soc’y 87, 102–03 (2017).

 [22]. See State v. Loomis, 881 N.W.2d 749, 75760 (Wis. 2016).

 [23]. Julia Angwin et al., Machine Bias, ProPublica (May 23, 2016), https://www.propublica.org/
article/machine-bias-risk-assessments-in-criminal-sentencing.

 [24]. See Anthony W. Flores et al., False Positives, False Negatives, and False Analyses: A Rejoinder to “Machine Bias: There’s Software Used Across the Country to Predict Future Criminals. And It’s Biased Against Blacks.”, 80 Fed. Prob., Sept. 2016, at 38; see also Danielle Keats Citron & Frank Pasquale, The Scored Society: Due Process for Automated Predictions, 89 Wash. L. Rev. 1, 6 (2014) (calling for predictions that are consistent with normative concepts of fairness).

 [25]. Cindy Chang, LAPD Officials Defend Predictive Policing as Activists Call for Its End, L.A. Times (July 24, 2018, 8:20 PM), https://www.latimes.com/local/lanow/la-me-lapd-data-policing-20180724-story.html.

 [26]. Eaglin, supra note 21, at 105; see also Eaglin, supra note 15, at 64.

 [27]. See Eaglin, supra note 15, at 118.

 [28]. Joan Petersilia, Recidivism, in Encyclopedia of American Prisons 215, 215–16 (Marilyn D. McShane & Frank R. Williams III eds., 1996).

 [29].               See Kevin R. Reitz, Sentencing Facts: Travesties of Real-Offense Sentencing, 45 Stan. L. Rev. 523, 528–35 (1993) (arguing against reliance on unadjudicated conduct at sentencing).

 [30]. See Alexandra Chouldechova, Fair Prediction with Disparate Impact: A Study of Bias in Recidivism Prediction Instruments, 5 Big Data 153, 153-162 (2017); Don A. Andrews, Recidivism Is Predictable and Can Be Influenced: Using Risk Assessments to Reduce Recidivism, Correctional Serv. Can. (Mar. 5, 2015), https://www.csc-scc.gc.ca/research/forum/e0