Outsourced Censorship: A Case for Judicial Revival of the State Action Doctrine’s Encouragement Theory by Haley Tuchman

Note | Constitutional Law
Outsourced Censorship: A Case for Judicial Revival of the State Action Doctrine’s Encouragement Theory
by Haley Tuchman*

Vol. 93, Note (December 2020)
93 S. Cal. L. Rev. Note 1039 (2020)

Keywords: State Action Doctrine, Encouragement Theory 

INTRODUCTION

Part I traces the evolution of First and Fourteenth Amendment jurisprudence and examines the existing doctrine as it pertains to the NFL’s anthem policy. Although the Court has developed a patchwork of state action tests over the years, this Note focuses specifically on the impact and necessity of expanding the state encouragement theory. Part II proposes that the President unconstitutionally coerced and influenced the NFL to change its longstanding anthem policy by unleashing a calculated media firestorm, encouraging fans to boycott games, and threatening to revoke the league’s tax-exempt status. Trump’s success in employing these unprecedented tactics to suppress speech he deemed objectionable exemplifies his willingness to disregard constitutional principles and norms in pursuit of unfettered executive control. Overall, the government’s ability to influence the NFL to depart from its longstanding position, and censor player protests, sets a frightening precedent. Part III focuses on the vulnerability of three private actors: universities, news outlets, and social media and technology companies, and assesses the mounting danger of outsourced censorship beyond the NFL. Part IV argues that the Court has abdicated a core part of its role as a co-equal branch of government by abandoning formerly-broad notions of state action and allowing the Executive Branch to hide behind private actors.

In order to combat the growing threat of outsourced censorship, the Court must revive the state encouragement theory and unequivocally apply the doctrine to cases in which the government has manifestly coerced or influenced a private actor’s speech restrictions. The future of the First Amendment is at a crossroads, and if the Court continues to turn a blind eye to the Executive’s constitutional abuses, truly meaningful speech or press protections will cease to exist.

______________________

*. Executive Development Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.A. Government 2016, University of Texas at Austin. First and foremost, I am deeply grateful to my parents, Deborah and Jeremy, who have always encouraged and supported me in everything that I do. Thank you to Professor Rebecca Brown for your steadfast faith in our Constitution and your invaluable guidance in drafting this Note. Also, many thanks to my friends and family who endured countless iterations of this argument with me. Finally, thank you to the team of editors at the Southern California Law Review who made editing during a pandemic a seamless process. I have the utmost respect and appreciation for your exceptional work.

Resolving the Merits of the Emoluments Cases: Either Way, Several Presidents Were Wrong by Jesse Mentz

Postscript | Constitutional Law
 Resolving the Merits of the Emoluments Cases: Either Way, Several Presidents Were Wrong
by Jesse Mentz*

Vol. 94, Postscript (October 2020)
94 S. Cal. L. Rev. Postscript 44 (2020)

Keywords: the Emoluments Clause, President Trump

INTRODUCTION

Consider the following stories.

Story 1: The Federal Government owns some land and is trying to sell it. The people the government has put in charge of selling it are highly politically connected. One of them was appointed by the president, whom we will call “Don.” Distinct from the salary he receives for his services as president of the United States, Don owns property and runs a small enterprise. He buys the land. Has Don done anything wrong? Has he violated convention? Has he used his public office for personal gain? And more importantly, even if the answer to the last three questions is yes, has he violated the Constitution?

Story 2: The Federal government owns a building and is trying to lease it. The people put in charge of managing the lease work for the president, Don. Don leases the building for his business enterprise. Has Don done anything wrong?

Story 3: The Federal government needs money. Don pools his money together with other investors and loans it to the government in exchange for annual repayment with interest. Has Don violated the Constitution?

Story 4: What if instead of loaning money to the Federal government, Don and his fellow investors loan money to a state government? Or a city government? Or a foreign government?

Story 5: Don owns an agricultural business. Don exports his goods abroad for general sale. Don is not sure, but it is likely that at least some of the people who buy Don’s goods are employed by a foreign government. Has Don violated the Constitution?

Story 6: Don owns a hotel company. A foreign government sends its diplomats to the United States to meet with Don and his employees. While here, they spend a substantial amount of money on hotel rooms and meeting spaces. They have a choice of hotels and venues, but they choose one owned by Don. Has Don violated the Constitution?

Finally, does the answer to any of the above change depending on who “Don” is?

All of the stories above are true. Only stories two and six exclusively involve Donald Trump. Story one is about George Washington. Story five is about George Washington, Thomas Jefferson, and James Madison. Stories three and four are about Barack Obama and very likely every other president since the invention of the bond fund. They would almost certainly apply to every modern candidate running for office.

Story six, regarding diplomatic business at the Trump International Hotel, has attracted significant media attention and several lawsuits[1] utilizing a Constitutional Clause never before litigated[2]—the Foreign Emoluments Clause, which reads “No Title of Nobility shall be granted by the United States: And no Person holding any Office or Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[3] Story two, regarding Trump International Hotel leasing space in the Old Post Office Building from the Government Services Agency which sits in the executive branch, has also generated litigation.[4] The cases also allege a litany of other violations, including foreign governments buying or leasing space from Trump properties,[5] moving conventions and parties to Trump hotels,[6] paying Trump royalties for permission to air The Apprentice,[7] expediting Trump real estate developments[8] or Trump trademark applications,[9] and the State Department marketing Mar-a-Lago on its website.[10]

The question in these cases is whether the Foreign Emoluments Clause applies to President Trumps’ private business revenue.[11] While there is some debate on whether the president is included as “a Person holding any Office or Profit or Trust under” the United States,[12] the majority of the debate has centered on the meaning of the word “emoluments.” This argument has primarily involved two categories of evidence: evidence from language—usually historical statements of the founders, ratification-era dictionaries, and corpus linguistics; and evidence from practice—how presidents and others behaved, shedding light on the proper understanding of this clause, throughout history. I have summarized the most convincing arguments below in Part I.

In this Note, I offer a summary, a realization, a conclusion, and an explanation: a summary of what I found to be the most convincing arguments of each side, noting both the plaintiffs’ and defendant’s efforts to characterize history as uniquely supporting their favored interpretation; a realization of the impossibility of perfect historical consistency in any interpretation; a conclusion that in light of unavoidable historical inconsistency, the Foreign Emoluments Clause does indeed apply to President Trump’s hotel revenues; and an explanation of one possible way to view the inconsistent application of the clause in view of my conclusion that it does apply.

Under my proposed view, the fact patterns of all the introductory stories fall within the scope of the Emoluments Clause(s)[13]—they are all “emoluments” under the broad definition—but the difference in the propriety of the behavior is based primarily on what is outside the fact patterns: the appearance of the possibility of corruption. The reason these cases are being brought against the forty-fifth president and not the first has much more to do with the perception of who the presidents were and are, and the public’s corresponding intuitive sense of the possibility of corruption. This understanding is one possible explanation of how Washington could purchase land at a public auction designed to raise funds for the founding of the new capital without raising flags, but Trump cannot similarly lease hotel space from the government and avoid scrutiny.

I.  BACKGROUND

In Blumenthal v. Trump, in which more than two hundred members of Congress sue President Donald Trump for violating the Emoluments Clause, President Trump argues that there were two definitions of emoluments in use at the time the Constitution was written and ratified: a “broad” and a “narrow” definition. The broad view, which the plaintiffs argue for, is that emoluments “refer[s] generally to benefit and advantage.”[14]

The narrow definition, which President Trump argues for, means “profit arising from an office or employ.”[15] Under this definition, only profits that are paid by a foreign government to the president in an official, employment-like relationship would apply. The clause prevents a foreign government from hiring the president, outright, as an employee. President Trump’s amici also argue that the Foreign Emoluments Clause does not apply to presidents, although President Trump has not raised this argument in his own briefs.

A.  Arguments from Language

The arguments from language support a broad view. While I cannot comprehensively recap every argument here, I have highlighted the ones that I found most convincing and added a more exhaustive list in the footnotes.[16]

First, Professor John Mikhail’s exhaustive study of seventeenth century dictionary definitions finds that every definition of “emolument” published in English language dictionaries from 1604 to 1806 relies on “profit,” “advantage,” “gain,” or “benefit.”[17] Only 8 percent of dictionaries have any reference to “office” or “employment,” and these 8 percent also include “gain” or “advantage.”[18] Also, none of the founders or ratifiers owned the only two dictionaries that President Trump cites for his definitions, and all of the dictionaries they owned define “emolument” in the broad sense.[19]

Second, contrary to the argument that emolument had an alternate specific technical or legal meaning, in most of the significant common law dictionaries published from 1523 to 1792, “emolument” is not defined.[20] In Sir William Blackstone’s treatise, with which all the founders would have been familiar, he uses “emolument” sixteen times, referring to such diverse categories as family inheritance, private ownership of land, church property, gifts to third parties, and increases in the national treasury, among other things.[21] Similarly, “emolument” is used twice in The Wealth of Nations and twice again in Basil Kennet’s translation of Samuel Pufendorf’s treatise. The founders would have been familiar with both works, and each time “emoluments” is used it refers to private market transactions.[22]

Third, in a corpus linguistics analysis of over 126,000 texts created between 1760 and 1799, containing over 2,800 uses of the word “emoluments,” researchers found overwhelming support for the broad definition.[23] The corpus included twenty-five different nouns that were referred to as types of emoluments, including: bounties, clothing, command, commissions, commutation, contracts, fees, fishing, forage, gratuity, lands, liberty, navigation, offices, pay, pensions, perquisites, places, privileges, rank, rations, subsistence, sum, tithes, and toll.[24] The range—from non-monetary uses like clothing, fishing, forage, liberty and navigation, to a wide variety of monetary uses pay, pensions, tithes, and tolls—makes private hotel revenues seem well within the term’s conceptual borders.

Finally, the founder’s own statements demonstrate that this is what emoluments meant. George Washington, Thomas Jefferson, James Madison, James Monroe, Alexander Hamilton, and Chief Justice John Marshall all used the word “emolument” to refer to private commercial contexts.[25] George Mason, Edmund Randolph, William Grayson, and James Madison all used the word “emoluments” in ways that would be inconsistent with a narrow definition in the ratification debates themselves.[26]

In support of the narrow definition, there are only two founding era dictionaries, neither of which the founders owned. There is one corpus linguistics analysis suggesting that the narrow definition was in view in the two other emoluments clauses, but even that analysis concludes the meaning is “ambiguous” regarding the Foreign Emoluments Clause.[27] And I did not come across any evidence from the ratification debates supporting a narrow definition.

B.  Arguments from Practice

After reading the textual evidence, I had almost made up my mind that emoluments must cover private hotel revenue—until I learned that multiple presidents, including George Washington, had acted in ways apparently inconsistent with the broad definition.

In 1790, Congress implemented a plan to raise money for public buildings and to facilitate the government in moving its seat to D.C. in 1800.[28] Under the scheme, private owners of land within the boundaries of the new district could donate part of their land to “Trustees on behalf of the Public,” who would then hold the land until the president approved which lots would make up the District, convey ownership of the land to Commissioners who would hold the land, give half of the remaining lots back to the donors, and sell the other half of the remaining lots at public auction.[29] The Trustees would then use the proceeds from the auction to pay the donors £25 per acre for the land that would be used for the District.[30] The Commissioners, who were appointed by president Washington, conducted the auctions and advertised and presided over the sales.[31] In September 1793, while president, Washington purchased four lots at these auctions.[32] At the time, these Commissioners were David Stuart, Daniel Carroll, and Thomas Johnson.[33] Stuart and Johnson had been part of their states’ Constitutional ratifying conventions, Carroll had been a member of the Federal Convention that drafted the Constitution, and Johnson had served as a Supreme Court Justice from January 1792 to January 1793, resigning because of his health.[34]

If the broad definition were correct, Trump argues, then President Washington’s purchase of public land would have been a clear violation of the Domestic Emoluments Clause.[35] And since it is extremely unlikely that Washington would have violated the clause in public, in front of three men involved in the making of the Constitution and one who was a Supreme Court Justice, then a broad definition of emoluments must be incorrect.[36]

This issue is even more interesting when one considers the claim for leasing the Old Post Office building from the Government Services Agency, which sits under the Executive Branch. While one might conceivably draw a line between two types of hotel receipts and a land purchase, it is much harder to pretend the same clause condemns one President for leasing real estate from the federal government while exonerating the other for purchasing real estate from the federal government.

Professors Blackman and Tillman, authors of an amicus brief on Washington’s land transactions in support of President Trump’s position, recognize this and argue the point hard. Commenting on the District Court case in Maryland where Judge Messite adopted the broad interpretation, Blackman and Tillman write:

If President Washington was correct, then President Trump should prevail. . . . If Judge Messite’s interpretation of the Domestic Emoluments Clause and its “emoluments”-language were correct, then Washington violated the clause, and his three commissioners conspired to help him do so in full light of day. . . . [T]he 1793 Washington land purchase—at an advertised, public auction—serves as an on point Executive Branch precedent that the President is permitted to derive benefits from doing business with the federal government, notwithstanding the “emoluments” language in the Domestic Emoluments Clause.[37]

If the broad definition of “emoluments” is correct, it is hard to avoid the conclusion that President Washington violated at least one of the emoluments clauses.

Blackman and Tillman also bring up a number of historical examples of other early founders and presidents receiving gifts without the consent of Congress. Tillman points out that in addition to the land transactions, Washington received an extravagantly framed portrait of Louis XVI in 1791, and a painting of the Bastille along with a key to the fortress from France.[38] Thomas Jefferson, while president, received a bust of Czar Alexander I from the Russian government.[39] Jefferson also received presents from Indian tribes, which he regarded as diplomatic gifts from foreign governments, and Lewis and Clark returned from their expeditions with gifts from Indian tribes for President Jefferson.[40] James Madison, while President, received two elaborate ceremonial pistols from an Argentinian General. And after Madison left office, he left them to President Monroe.[41] If the foreign emoluments clause applied, Tillman and Blackman argue, all of these presidents would have been required to seek the consent of Congress. Yet none of them did, even though Congress had used the Foreign Emoluments Clause as early as 1798 to deny a parting gift from the French court to the outgoing U.S. ambassador to France.[42]

Finally, President Trump and his amici point out that a broad definition is incompatible with the practices of President Obama and almost any conceivable presidential candidate in the modern economy. For example, a broad definition would implicate royalties that President Obama earned from foreign book sales purchased by visiting officials or public universities. Also, it would implicate anyone who owns government bonds, which are nothing less than loans to the government that the government then repays with interest. Anyone with the requisite assets to run for President almost certainly owns U.S. government bonds—for reference, Obama’s financial disclosures indicate he held between five hundred thousand and one million dollars in government bonds—and a large majority of them likely also own foreign government bonds.[43] Additionally, it would implicate anyone who holds stock in a business that receives income from foreign governments; indeed, it is hard to imagine many public companies who do not do business internationally, and harder still to imagine any presidential candidate not owning stock. And in a set of facts mirroring President Trump, it would implicate anyone who owns stock in Marriott International (which is a high percentage of people who own U.S. stock, since Marriott is part of the S&P 500). Almost certainly, some foreign official will stay at some Marriott hotel somewhere during a president’s term, and that president will be receiving the benefit of foreign hotel revenues from a business that he or she owns a portion of.[44]

In light of these examples, President Trump argues the narrow definition must be correct:

If the district court’s [broad] interpretation of the term “emolument” means that myriad government officials have always violated the Clauses . . . [i]t is a reason . . . to adopt an interpretation consistent with the plain text, historical practice, and common sense. And under that interpretation, which prohibits only compensation accepted from a foreign government for services rendered by an officer in either an official capacity or employment-type relationship, the President’s share of the profits from governmental customers of his businesses does not constitute a prohibited emolument.[45]

In the Department of Justice’s point of view, there is no way to differentiate the payments Trump’s businesses receive from any of the examples above. To construe the Foreign Emoluments Clause to implicate Trump is to construe it to implicate Washington, Jefferson, Madison, Monroe, and Obama as well.

II.  ARGUMENT

Notwithstanding the arguments and posturing, the facts given above are irreconcilable. Rigorous study of language leaves little doubt that the broad definition is correct. Meanwhile, the actions of past presidents and office holders leave little doubt that the broad definition cannot be correct.

The arguments for the plaintiffs were straightforward: almost all of the linguistic evidence from the founding era, including the usage of many of the founders themselves, suggests “emoluments” was a broad, catch-all term, consistent with the drafters’ intent to protect the Presidency from foreign corruption. Put simply, the Foreign Emoluments Clause has a broad definition and applies to the president. Therefore, Trump’s hotel revenues are in violation.

But the arguments for the defendants were logically compelling: adopting a broad definition and applying the clause to President Trump would be inconsistent with the practice of numerous presidents, past and present. Framed as a syllogism, President Trump’s strongest arguments can be summarized as follows.

Premise 1: The plaintiffs’ interpretation is inconsistent with the practice of (1) George Washington, entitled to special solicitude because his actions as Founder and first president are an excellent indication of how the Constitution was understood, (2) numerous other presidents who received gifts in office without reporting them to Congress, including Jefferson, Madison, and Monroe, and (3) almost all modern presidents and potential candidates, including Obama.

Premise 2: An interpretation inconsistent with the practice of Washington, numerous other presidents, and almost all modern presidents must be incorrect.[46]

Conclusion: Therefore, the plaintiffs’ interpretation is incorrect.

Considering the defendant’s argument, adopting the plaintiffs’ interpretation felt illogical. But considering the historical and linguistic evidence, not adopting the plaintiffs’ interpretation felt dishonest.

The plaintiffs’ main counterarguments, which, in essence, were aimed at undermining Premise 1, did little to help. Plaintiffs argued that President Trump’s hypotheticals were “different, and far more attenuated,” because the Clause is only violated when an official “accept[s]” an emolument.[47] They argued that Washington’s land sale was private, since the title was held in trust rather than owned outright by the federal government at the time of sale.[48] They argued that stock ownership is different because public and private companies are different, and that book sales “trigger contractual obligations. . . to increase an author’s royalty payments” but do not mean that the author has “accepted” an emolument from a foreign state.[49] The bond arguments they ignored altogether.[50]

None of these counterarguments are convincing. On the land sale: in every way that matters for the founders who were concerned about the possibility of corruption, Washington’s land purchase was public—the Commissioners in charge of the sale were all appointed by the president. On the stock argument: if stock ownership is different, are the plaintiffs suggesting that the problem with Trump’s ownership is merely that it is held in a private structure? If the Trump Organization went public, would that really be less problematic, even if Trump retained a majority of stock? Why does owning a Trump Hotel involve “accept[ing]” emoluments “from” a government while owning a Marriott Hotel does not? And on the royalties: if book royalties merely “trigger” “contractual obligations” on a publisher to “increase an author’s royalty payments,” don’t hotel stays merely trigger contractual obligations on hotel managers to increase the owner’s hotel revenues? Isn’t this just a rephrasing of the way any business works?

A.  A Realization

What finally wrested me from my position on the fence was not an outright rebuttal of either side’s main points, or a recharacterization of either side’s historical evidence, but an additional set of historical facts.

In 1830, President Andrew Jackson presented to Congress a gold coin that Colombian President Simon Bolivar had given him, which Congress told him to deposit in the Department of State.[51] In 1840, President Martin Van Buren told the Imam of Muscat that he was precluded from receiving “two horses, a case of rose oil, five bottles of rose water, a package of cashmere shawls, a Persian rug, a box of pearls, and a sword” because of a “fundamental law of the Republic which forbids its servants from accepting gifts from foreign States or Princes.” Like Jackson, he “deemed it his duty to lay the proposition before Congress,” and Congress similarly told him to deposit the gifts in the Department of State, and to sell anything that could not be deposited there and give the proceeds to the Department of the Treasury.[52] The Imam of Muscat similarly offered President John Tyler two horses in 1843. President Tyler again sought the consent of Congress, who told him to sell the horses and put the money in the Treasury.[53] While President, Abraham Lincoln presented to Congress two decorative elephant tusks, a sword, and a photograph from the King of Siam, writing to the King, “our laws forbid the President from receiving these rich presents as personal treasures . . . .” Congress told him to deposit the gifts with the Department of the Interior.[54] President Benjamin Harrison received honorary medals from Brazil and Spain, which Congress allowed him to keep in 1896.[55] President John F. Kennedy rejected an offer of Honorary Irish Citizenship in 1963, on the belief that it would violate the emoluments clause.[56] All of these Presidents sought the consent of Congress or rejected the gifts outright, because they thought the Foreign Emoluments Clause applied.

In attempting to define the foreign emoluments clause, both sides draw lines that put all the weight of historical evidence on their side.[57] The defendant points out that the plaintiffs’ interpretation is inconsistent with the practice of numerous presidents. But problematic for the defendant’s line-drawing exercise is that Abraham Lincoln and at least five other Presidents end up on the other side of it.

Armed with President Washington’s land transaction, scholars Blackman and Tillman portray the issue as a “simple one,” where “either (1) President Washington and his three commissioners (including a Supreme Court Justice) were right, and [the District Judge] is wrong; or (2) [the District Judge] is correct, and President Washington and his three commissioners were wrong.”[58] But such a description is woefully incomplete. No matter which definition one chooses, the list of who is wrong on the other side is long, includes several presidents, and either George Washington or Abraham Lincoln. Take your pick.

In light of this choice, the more honest solution seems to be to give up the false insistence on perfect consistency in the first place.

There is no interpretation of the clause that is consistent with the practice of all prior presidents. The Department of Justice’s view that the narrow definition is correct is inconsistent with the statements of George Washington, Thomas Jefferson, James Madison, James Monroe, Alexander Hamilton, Chief Justice John Marshall, George Mason, Edmund Randolph, and William Grayson, who all used “emoluments” to mean something broader than “office or employment.” Tillman’s view that the clause does not apply to the president is inconsistent with the actions of Andrew Jackson, Martin Van Buren, John Tyler, Abraham Lincoln, Benjamin Harrison, and John F. Kennedy, who all believed the clause applied to them.[59] And the plaintiff’s view that the broad definition is correct and that the clause applies to President Trump is inconsistent with the actions (although not the statements) of Washington, Jefferson, Madison, Monroe, and Obama.

Therefore, returning to defendant’s syllogism, Premise 2 is the better one to doubt: an interpretation inconsistent with the practice of several presidents may in fact be correct, because any interpretation of the clause, even that of the defendant or his amici, is inconsistent with the practice of at least some presidents.

B.  A Necessary Conclusion and an Explanation

The uncomfortable consequence of adopting these views—that the broad definition applies and that it implicates past presidents—is the conclusion that the clause has not been enforced consistently. That is, it has been applied (or not applied) with discretion.[60] This conclusion is descriptive rather than prescriptive. I am not attempting to say that this is the way it should be applied, or that this is a good or a bad thing, nor am I prescribing a remedy or arguing that any violation would be impeachable. But if the broad definition is correct, then undoubtedly this is the way it has been applied.

In the D.C. District Court opinion in Blumenthal, Judge Sullivan implicitly acknowledged this when he referenced “the consistent Executive Branch practice of applying a totality-of-the-circumstances approach to applying the Clause.”[61] The placement of the adjective “consistent” is not on the application of the Clause, but rather on the application of an “approach to applying” it. Assumed in Judge Sullivan’s double use of the word “applying” is that invoking the Clause is a two-step process: before one applies the clause, one must decide when to apply it. In a word, this preliminary step is discretionary. And what Judge Sullivan describes as a “totality-of-the-circumstances” is, in a crude form, a sort of smell-test.

And by the nature of the Founders’ choice to leave the acceptance of emoluments to the consent of Congress, this seems to comport with the Constitution’s intent as well.

To me, this is the most plausible explanation—that the common-sense, “intuitive” definition is the intended one: that this clause was designed to prevent corruption, and to be a broad tool to do so, but that its enforcement is plainly discretionary. The “unchallenged practices of countless federal officials”[62] are just that, “unchallenged”, because they do not smell of corruption. They have gone under the radar, because there was nothing to get them on the radar to begin with.

Instead of arguing that the difference between Washington buying land from the federal government and Trump leasing a building from the federal government is whether the land was held in trust or fee simple, is it not more honest to acknowledge that one simply raised more red flags? Like Justice Stewart’s “I know it when I see it” test for pornography,[63] the best test of whether something is rotten is whether it smells.

While allowing for discretion in a clause’s application admittedly opens it up to being used subjectively, politically, or maliciously, I am not convinced that makes it the wrong interpretation for two reasons. First, the framers seemed to allow for, if not outright intend, subjective and political discretionary use of a Constitutional Clause as part of our system of checks and balances when they inserted “other high Crimes and Misdemeanors”[64] as impeachable offenses. Second, any president who wishes to avoid malicious use of discretion can avoid it by presenting the receipts in question to Congress. Congress can either accept or reject it. If a president really wants to avoid the possibility of being sued over it, or impeached, or raked over the coals in the press by his opponents, he or she can either present everything for Congressional approval or relinquish ownership in the possible emolument-generating business for the remainder of their term. If the president believes his or her actions do not smell of corruption, they can take the risk.

Here, Congress, the courts, and the public have discretion over when to apply the clause—or, more accurately, over when to raise an uproar over its non-application when the president does not present emoluments to Congress for approval. And this will not be a substantial issue for a president whose actions do not suggest a possibility of corruption.

The simple truth is that the flow of money from one party to another has the capacity to corrupt, but often, it is just a simple market transaction. This is even more true in the context of globalization. One person pays another for goods or services honestly provided. Another pays someone for goods or services as a front for political influence. Congress was meant to be able to consent because it would allow them to smell the difference between the two. When the flow of money does not seem to be of the problematic type (for example, when President Washington, with a personal reputation for honesty, buys land from the federal government to support a program designed to aid the government in establishing its capital in D.C.), Congress does not complain about not being asked to consent.[65] But when it does, under the broad definition, Congress can enforce the rule.

CONCLUSION

While the courts are unlikely to resolve the emoluments cases on the merits, the issue of whether business revenue constitutes an emolument under the Constitution is unlikely to go away. Our globalized world virtually guarantees that future presidents will have to resolve this question, and even those who choose to play it safe or comply with the conventional practice of pre-Trump presidents will need to consider the Clauses’ application to foreign income from book sales and bond revenue.

There are three potential answers. One could adopt a narrow definition and preserve the historical reverence for George Washington and other early presidents. But to do so, one must defy the more intuitive definition, the weight of dictionary evidence, the broad anti-corruption purpose evidenced in the statements of the ratifiers, and the practice of Abraham Lincoln and multiple other presidents. And perhaps worse still, one leaves open and unpreventable the sizeable possibility of corruption through foreign governments doing business with a sitting president. Alternatively, one could adopt the broad definition but ignore the obvious implications that some of President Washington’s actions were not substantively different than President Trump’s, and that the modern economic consequences of globalization almost certainly expose all modern presidents to the clause. This is no solution at all.

Thirdly, one can adopt the broad definition, admit that its application implicates presidents past, present, and future, but allow that its enforcement is necessarily contingent on the appearance of corruption. This is the only solution that honestly appraises the weight of the evidence of original public meaning, the mixed history of presidential practice, and the far-reaching results of applying the broad definition to modern presidents.


           *.      Executive Postscript Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; M.A. International Relations 2012, University of Southern California; B.A. International Relations 2012, University of Southern California. Thank you to my wife, Sonia, for encouraging me to pursue law school, and to my two daughters for making this stage of life so enjoyable. Additionally, thank you to Professor Franita Tolson for encouraging me to write about what interested me and helping me hone what I wanted to say. Finally, thank you to the Southern California Law Review editors for their excellent work.

          [1].      E.g., Citizens for Responsibility & Ethics in Wash. v. Trump (CREW), 276 F. Supp. 3d 174 (S.D.N.Y. 2017); District of Columbia v. Trump, 291 F. Supp. 3d 725 (D. Md. 2018); Blumenthal v. Trump, 335 F. Supp. 3d 45 (D.D.C. 2018), rev’d, 949 F.3d 14 (D.C. Cir. 2020). These three cases are the most substantive and have each made it to federal circuit courts in the Second, Fourth, and D.C. Circuits respectively, but other cases exist. See, e.g., Nyabwa v. Trump, 1:17-mc-00058, 2017 U.S. Dist. LEXIS 221020, at *2 (D.D.C. Jan. 31, 2017) (asking for injunction of inauguration until Trump divests business interests because of violation of emoluments clause; dismissed for lack of filing fee).

          [2].      A Lexis search Shepardizing the Foreign Emoluments Clause in all cases prior to November 8, 2016 (election day), yielded only seventy-five results. Of those, only ten were Supreme Court opinions, of which two were in dissents, four referenced only that “No Title of Nobility shall be granted by the United States,” one noted that United States was a plural noun in the Constitution, another listed the times “Person” was used in the United States, another listed a criminal case in which the defendant had marked several clauses in the Constitution, and one stated in a footnote that a retired military officer may lose pay if he accepts employment by a foreign government with statutory exceptions. E.g., McCarty v. McCarty, 453 U.S. 210 (1981). No case has directly addressed the meaning of emoluments in the Foreign Emoluments Clause.

          [3].      U.S. Const. art. I, § 9, cl. 8.

          [4].      Technically, the plaintiffs in all three of the major lawsuits allege the hotel lease is a violation of the Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7., but the meaning of the word “emoluments” is still at issue. See Second Amended Complaint at 43, Blumenthal, 335 F. Supp. 3d 45 (No. 17-cv-1154), ECF No. 87 [hereinafter Blumenthal Complaint]; Amended Complaint at 26–29, District of Columbia, 291 F. Supp. 3d 725 (No. 17-cv-1596), ECF No. 95 [hereinafter District of Columbia Complaint]; Second Amended Complaint at 30–34, CREW, 276 F. Supp. 3d 174 (No. 17-cv-458), ECF No. 28 [hereinafter CREW Complaint].

          [5].      Blumenthal Complaint, supra note 4, at 46–47; District of Columbia Complaint, supra note 4, at 19–20; CREW Complaint, supra note 4, at 23–25.

          [6].      CREW Complaint, supra note 4, at 20–21.

          [7].      Blumenthal Complaint, supra note 4, at 47–48; District of Columbia Complaint, supra note 4, at 24; CREW Complaint, supra note 4, at 28.

          [8].      Blumenthal Complaint, supra note 4, at 48–50; District of Columbia Complaint, supra note 4, at 24–26; CREW Complaint, supra note 4, at 28–30.

          [9].      Blumenthal Complaint, supra note 4, at 40–42; District of Columbia Complaint, supra note 4, at 22–24; CREW Complaint, supra note 4, at 26–27.

        [10].      District of Columbia Complaint, supra note 4, at 29–31.

        [11].      These three cases will almost certainly be resolved on procedural issues, and the courts will decline to reach the merits, but that has not stopped the litigants from arguing the merits and will not stop us here from attempting to resolve them.

        [12].      One of the stronger textual arguments supporting the position that the clause does not apply to the president’s actions argues that the clause does not cover the president at all. See Josh Blackman & Seth Barrett Tillman, The Congressional Research Service Has Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President, Volokh Conspiracy (Oct. 3, 2019, 7:30 AM), https://reason.com/2019/10/03/the-congressional-research-service-has-shifted-its-position-on-whether-the-foreign-emoluments-clause-applies-to-the-president [https://perma.cc/ZRR9-FDZS]. But see Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30, 42–45 (2012); Norman Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, Brookings (Dec. 16, 2019) https://www.brookings.edu/research/the-emoluments-clause-its-text-meaning-and-application-to-donald-j-trump [https://perma.cc/VVE2-3UTD]. Regardless of the strength of Tillman’s argument here, the Department of Justice has not argued this position in the lawsuits, much to Blackman and Tillman’s apparent bewilderment. See Josh Blackman & Seth Barrett Tillman, The Office of Legal Counsel Has Not Shifted Its Position on Whether the Emoluments Clause Applies to the President. But the Civil Division Has, Volokh Conspiracy (Oct. 4, 2019, 7:30 AM), https://reason.com/2019/10/04/the-office-of-legal-counsel-has-not-shifted-its-position-on-whether-the-foreign-emoluments-clause-applies-to-the-president-but-the-civil-division-has [https://perma.cc/4642-RB42] (“The government’s position emulates Schrodinger’s cat: maybe the Foreign Emoluments Clause applies to the President; maybe it doesn’t; don’t ask; we won’t tell.”).

        [13].      Either the Foreign Emoluments Clause, U.S. Const. art. I, § 9, cl. 8, the main clause at issue in the cases, or the Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7., implicated in a few of the claims. See supra text accompanying note 4.

        [14].      Brief for the Appellees at 47–48, Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020) (No. 19-5237).

        [15].      Brief for the Appellant at 39–40, Blumenthal, 949 F.3d 14 (No. 19-5237).

        [16].      For a more complete representation of the relevant arguments on both sides, the filings in the D.C. Circuit appeal of Blumenthal are particularly helpful. While over 124 amici participated, of special note are: Brief for the Appellees; Brief for the Appellant; Reply Brief; Brief for Amici Curiae Certain Legal Historians in Support of Plaintiffs-Appellees and Affirmance; and Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert in Support of Neither Party; as well as the following Brief from the District Court ruling in District of Columbia: Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia v. Trump, 344 F. Supp. 3d 828 (D. Md. 2018) (No. 17-cv-1596) [hereinafter Brief for Tillman]. The three amici briefs are summaries of more detailed scholarship by the authors, which are also worth reading, and can be found here: Clark D. Cunningham & Jesse Egbert, Using Empirical Data to Investigate the Original Meaning of “Emolument” in the Constitution, 36 Ga. St. U. L. Rev. 465 (2020); John Mikhail, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523–1806, at 8 (July 13, 2017) (unpublished article), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995693 [https://per
ma.cc/TX7F-JD7N]; Seth Barrett Tillman, A Compilation: The Emoluments Clauses Litigation, Volokh Conspiracy (Sept. 25, 2017–Aug. 3, 2018) (unpublished manuscript), https://ssrn.com/abstract=3311758 [https://perma.cc/LCA2-UFFT]. This last source, a collection of blogs posted on Volokh Conspiracy over the course of almost a year, articulate most of the originalist arguments in favor of the President. Finally, for a corpus linguistics argument against the position taken by Cunningham and Egbert, see James Cleith Phillips & Sara White, The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English from 1760–1799, 59 S. Tex. L. Rev. 181, 189–96 (2017).

        [17].      Mikhail, supra note 16, at 8.

        [18].      Id.; Brief for Amici Curiae Certain Legal Historians in Support of Plaintiffs-Appellees and Affirmance at 13-14, Blumenthal, 949 F.3d 14 (No. 19-5237) [hereinafter Brief for Certain Legal Historians].

        [19].      See Brief for Certain Legal Historians, supra note 18, at 15–16.

        [20].      Id. at 14–15.

        [21].      Id. at 16–17. Blackstone even includes the term in a form lease as part of a list of benefits transferred when conveying land parcels. Id. at 17.

        [22].      Id. at 18–19.

        [23].      Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert in Support of Neither Party at 13, Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020) (No. 19-5237) [hereinafter Brief of Cunningham and Egbert].

        [24].      Id. at 15.

        [25].      Brief for Certain Legal Historians, supra note 18, at 20–21.

        [26].      Id. at 10–13. The authors even quote Edmund Randolph and George Mason debating whether the Foreign Emoluments Clause was strong enough to prevent “the great powers of Europe” from corrupting the president. Id. at 10.

        [27].      Phillips & White, supra note 16, at 233-234.

        [28].      Office of the Inspector General, U.S. General Services Administration, JE19-002, Evaluation of GSA’s Management and Administration of the Old Post Office Building Lease, app. A at 2 (2019). In the wake of the controversy surrounding the Old Post Office Building, the Office of the Inspector General examined Washington’s land transactions for comparison. But, they declined to reach a conclusion: “Consequently our report does not reach a definitive judgment on whether Washington’s lot purchases show a historic practice of the first President conducting private business with the United States.” Id. app. A at 6.

        [29].      Id.

        [30].      Id.

        [31].      Id. app. A at 3.

        [32].      Id. app. A at 4.

        [33].      Josh Blackman & Seth Barrett Tillman, The Emoluments Clause Litigation, Part 4—an Emolument is the “Profit Derived from a Discharge of the Duties of the Office,Volokh Conspiracy (Sept. 29, 2017 5:14 AM) https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/29/th
e-emoluments-clauses-litigation-part-4-an-emolument-is-the-profit-derived-from-a-discharge-of-the-dut
ies-of-the-office [https://perma.cc/7LAM-8AWX].

        [34].      Id.; Thomas Johnson, Oyez, https://www.oyez.org/justices/thomas_johnson [https://perma.
cc/R6FM-BDK].

        [35].      “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” U.S. Const. art. II, § 1, cl. 7.

        [36].      See Blackman & Tillman, supra note 33.

        [37].      Josh Blackman & Seth Tillman, Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington? Volokh Conspiracy (Aug. 3, 2018, 3:17PM) https://reason.com/
2018/08/03/who-was-right-about-the-emoluments-claus/printer [https://perma.cc/VY9T-NHXP].

        [38].      Brief for Tillman, supra note 16, at 20.

        [39].      Brief for Tillman, supra note 16, at 22.

        [40].      Brief for Tillman, supra note 16, at 22.

        [41].      Brief for Tillman, supra note 16, at 23.

        [42].      Ironically enough, the ambassador denied the gift here was Charles Pinckney, the same person who moved to add the clause to the Constitution at the Federal Constitutional Convention in 1787. Library of Congress, 1 Annals of Cong. 1582–93 (1789); Teachout, supra note 12, at 39.

        [43].      Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639, 663 (2017)

        [44].      Brief for the Appellant, supra note 15, at 45.

        [45].      Id. at 45–46.

        [46].      For a good summary of this argument, see Reply Brief at 27, Blumenthal, 949 F.3d 14 (No. 19-5237) (“In sum, the Members’ position, if applied consistently, would render unconstitutional the unchallenged practices of countless federal officials.”).

        [47].      Brief for the Appellees, supra note 14, at 54.

        [48].      Id. at 52–53.

        [49].      Id. at 54.

        [50].      Reply Brief, supra note 46, at 26.

        [51].      Blumenthal Complaint, supra note 4, at 33-34.

        [52].      Id. at 34.

        [53].      Id. at 34–35.

        [54].      Id. at 35.

        [55].      Id.

        [56].      Id. at 35–36.

        [57].      Two of the more nuanced discussions of the emoluments clause meaning and implications are Grewal, supra note 43, and Robert G. Natelson, The Original Meaning of ‘Emoluments’ in the Constitution, 52 Ga. L. Rev. 1 (2017). They reach conclusions, but with some degree of humility, and both propose a new way of looking at the problem.

        [58].      Blackman & Tillman, supra note 37.

        [59].      Blumenthal Complaint, supra note 4, at 33–36. It is additionally inconsistent with the statements of George Mason and Edmund Randolph at the Virginia ratifying convention, who debated whether the clause was strong enough to protect the president from corruption. See supra text accompanying note 26.

        [60].      In analyzing the meaning of the Emoluments Clause, Professor Grewal notes the consequences of a broad definition. “[A]n expansive interpretation of the Foreign Emoluments Clause would inevitably justify the impeachment of many future U.S. Officers and would stain those who have previously served our country with honor.” Grewal, supra note 43, at 692–93. While clarifying that consequences should not dictate the meaning, he recognizes that the broad interpretation implies the use of discretion. “Of course, the harsh consequences of any given interpretation should not by itself disqualify it. If the Constitution . . . absolutely prohibits the President from receiving even a penny . . . then so be it. It will be upon the people to amend the Constitution or upon the Congress (or its houses) to exercise any discretion under the relevant consent, impeachment, or removal powers.” Id. at 665–666 (footnotes omitted). He is particularly concerned with the potential unfairness of an approach that allows discretion. “[T]he rule of law requires that constitutional provisions apply neutrally, to all persons with their scope.” Id. at 692. Because Grewal thinks the term is susceptible to a narrow definition, he ultimately chooses it in order to “avoid[] strange consequences.” Id. at 666. Interestingly, Grewal suggests that Trump’s business revenues would still fall under the narrow definition of emoluments, and offers an innovative financial test to help differentiate the types of income likely to open the possibility of corruption, helping to solve the bond, stock, and royalty hypotheticals raised by the defendant. Id. at 675–66.

        [61].      Blumenthal v. Trump, 373 F. Supp. 3d 191, 204 (D.D.C. 2019).

        [62].      Reply Brief, supra note 46, at 27.

        [63].      Jacobellis v. Ohio, 378 U.S.184, 197 (1964) (Stewart, J., concurring).

        [64].      U.S. Const. art. II, § 4.

        [65].      Electoral considerations may have an effect here as well, as the public’s perception of whether an action is corrupt will either punish or reward a member who sees it the same way.

Guilty Beyond a Reasonable Vote: Challenging Felony Disenfranchisement Under Section 2 of the Voting Rights Act

Note | Criminal Law
Guilty Beyond a Reasonable Vote: Challenging Felony Disenfranchisement Under Section 2 of the Voting Rights Act
by Jonathan Kwortek*

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 849 (2020)

Keywords: Felon Disenfranchisement, the Voting Rights Act

This Note argues that the Court requires a showing of disparate impact for section 2 claims—purposeful race discrimination is not the standard. This Note posits that, following the 1982 amendments to the VRA (“1982 amendment”), the court should use a Results Test (to assess such claims), which connects the challenged voting procedure to the social and historical conditions affecting minority opportunities to participate in the political process.

Section II.A examines the historical origins of felon disenfranchisement laws in the United States as well as the broader trend of racial disenfranchisement after the Civil War. Section II.B details the legal background of the VRA and congressional amendments. Section II.B subsequently argues the standard for discrimination is disparate impact under section 2 due to the 1982 amendment, which the Supreme Court affirmed through the seminal case Thornburg v. Gingles.17 The final portions of Part II cover felony disenfranchisement challenges under the Fourteenth Amendment, comparing two cases—Richardson v. Ramirez and Hunter v. Underwood.18 Part II concludes by focusing on the inconsistent application of the VRA to felon disenfranchisement statutes by federal courts.

Section III.A posits that, despite a circuit division on the issue, convicted felons have standing to bring section 2 challenges of felony disenfranchisement statutes before the courts. Section III.B suggests a proper application of the Results Test to felon disenfranchisement statutes. The Note focuses on the disparate impact the criminal justice system has on minority civil rights, in Section III.B.1, and the use of racial campaign tactics through “tough on crime” policies, in Section III.B.2.

 

*. Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University
of Southern California Gould School of Law. Thank you to Professor Jody Armour for his encouragement, support, and guidance during the research and drafting of this Note. Further, thank you to the editors at the Southern California Law Review for their hard work at every level of review.

 

Apps Too: Modifying Interactive Computer Service Provider Immunity Under Section 230 of the Communications Decency Act in the Wake of “Me Too”

Note | Constitutional Law
Apps Too: Modifying Interactive Computer Service Provider Immunity Under Section 230 of the Communications Decency Act in the Wake of “Me Too”

by Alexandra Lotty*

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 885 (2020)

Keywords: Section 230 of the Communications Decency Act, Me Toof

This Note examines the status of interactive computer service provider (“ICSP”) liability under section 230 of the federal Communications Decency Act of 199613 (the “Act” or the “CDA”) within the context of the “Me Too” movement against sexual harassment and sexual assault. Section 230 has long provided a safe harbor for web-based businesses, shielding online services from legal claims premised on the words or actions of their users. While section 230 has played an instrumental role in promoting the growth of the Internet, much has changed since it was passed two decades ago. In light of these changes, section 230 must be reassessed. This Note will argue that current interpretations of the scope of section 230 immunity wrongfully deny individuals who have been sexually harassed or assaulted an opportunity to hold online services accountable for causing or exacerbating their harms. A reinterpretation of the section 230 doctrine is necessary to align the CDA with modern views regarding the role of the Internet user and the responsibility of technology companies to deter sexual misconduct.

*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law. Thank you to Professor Sam Erman for his valuable comments on my initial draft; the exceptional Southern California Law Review staff for their thoughtful and diligent edits; and my parents, Kathy and Bob, for their unyielding love and support. 

A Glimmer of Hope for California’s “Well-Intentioned” Attempt to Put More Women in the Boardroom – Jacqueline Concilla

Article | Anti-Discrimination Law
A Glimmer of Hope for California’s “Well-Intentioned” Attempt to Put More Women in the Boardroom
by Jacqueline Concilla*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 603 (2020)

Keywords: Senate Bill 826, Equal Protection Doctrine 

This Note necessarily hones in on the intersection between the principles underlying discrimination on the basis of gender and those animating the racial affirmative action cases. Part I of this Note explores the development of the Court’s equal protection doctrine, especially as it pertains to gender classifications. It then turns to the development of intermediate scrutiny as the standard of review for gender distinctions. Next, it examines how the Court has applied the equal protection doctrine in cases involving quotas and affirmative action programs designed to increase diversity, and how an anomaly has arisen between its treatment of race and gender. Finally, it introduces SB 826, California’s attempt at mandating gender diversity in the corporate boardroom. Part II of this Note then argues that the race/gender anomaly has left a narrow path for SB 826 to prevail against an equal protection claim, even within the Court’s current equal protection doctrine. Specifically, a colorable case exists that SB 826 will survive intermediate scrutiny because remedying past discrimination and dismantling gender stereotypes are important government interests to which the Act is substantially related. Finally, Part III concludes that although its success is unlikely given the makeup of the Supreme Court in 2020, SB 826 advances the goals of the Equal Protection Clause and that the Court would not have to alter its existing framework to uphold it.

 

*. J.D. Candidate, University of Southern California Gould School of Law, 2020. Many thanks to Professor Sam Erman for his guidance in developing this piece. Thank you to the entire Southern California Law Review team for their invaluable editing and insights, particularly Alix Lotty and Jason Rooindej. This Note would not have been possible without you. Finally, my deepest gratitude to my family for their unconditional support.

View Full PDF

Applying the Exclusionary Rule to Carpenter Searches – Note by Kevin Ganley

Note | Constitutional Law
Applying the Exclusionary Rule to Carpenter Searches
by Kevin Ganley*

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 571 (2020)

Keywords: Carpenter v. United States, the Fourth Amendment

This Note is useful in two respects. First and foremost, it provides a plausible approach for applying the exclusionary rule to mosaic searches, removing a thorny obstacle in the mosaic theory’s path. The after-act approach is also court friendly because it facilitates judicial review by incentivizing the government to show its work through sequencing its actions. Second and more subtly, this Note may encourage courts to avoid the mosaic theory altogether. The Supreme Court’s Fourth Amendment jurisprudence was already a “mess” before the digital age. This Note describes several complicated doctrinal puzzles that arise at the intersection of the exclusionary rule and the mosaic theory. Adopting the bright-line source rule would avoid having to address these difficulties.

Part I of this Note paints the backdrop underlying the Carpenter decision. It tracks the development of the Fourth Amendment search doctrine to the digital age and then demonstrates that over time the Court has adapted this doctrine in response to improvements in government surveillance technology. Then, Part I explains how the Court’s current analog-search rules, namely the third-party doctrine, have become outdated in the digital age.

Next, Part II of this Note explains how Carpenter marked a shift in the Court’s understanding of its Fourth Amendment search doctrine in the digital age but left open how to determine when exactly a Carpenter search occurs on new sets of facts. It will then more thoroughly introduce the mosaic theory and the source rule, which are two possible methods for determining when a Carpenter search occurs. In comparing the relative merits of each method, Part II will explain that, although the mosaic theory is theoretically sound, its application to the Court’s existing search doctrine presents many messy legal issues, including how to apply the exclusionary rule.

Part III addresses how to apply the exclusionary rule when a mosaic search occurs. In doing so, it briefly will introduce the exclusionary rule. It will then discuss the respective failings of the all-or-nothing and after-search approaches. Finally, Part III will outline the after-act approach and explain its various virtues, using the all-or-nothing and after-search approaches as foils.

*. Editor-in-Chief, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California, Gould School of Law; B.B.A. Finance 2017, University of San Diego; B.A. Political Science 2017, University of San Diego. I would like to thank my Mom, my Dad, Matt, and Madeline for their love and support throughout my time in law school. I would also like to thank Professor Sam Erman for his guidance as I worked through the many versions of this Note as well Professor Orin Kerr for his feedback on my manuscript. Finally, I would like to thank the talented members of the Southern California Law Review for their excellent editing work.

View Full PDF

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].

A Proposed Cure: More Expansive Conversion Therapy Legislation and the Limits of Parental Rights – Note by Nicole A. Meier

Article | Family Law
A Proposed Cure: More Expansive Conversion Therapy Legislation and the Limits of Parental Rights
by Nicole A. Meier*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 345 (2020)

Keywords: Sexual Orientation Change Efforts (“SOCE”), Conversion Therapy, Parental Rights

This Note will propose and examine the constitutional bounds of more expansive legislation that targets not just SOCE at the hands of state-licensed mental healthcare providers, but also at the hands of unlicensed providers—specifically religious leaders. Though more expansive legislation would likely trigger constitutional objections under the First Amendment, particularly with respect to free speech and free exercise rights, this Note will examine the constitutionality of this proposed legislation through the lens of parental rights under the Fourteenth Amendment.

This Note will proceed in the following order: Part I will examine the history and nature of SOCE, detail the current position of mainstream mental health professional associations regarding SOCE, and analyze current SOCE legislation and its deficiencies. Part II will propose more expansive SOCE legislation and establish that such legislation would not unconstitutionally infringe upon parental rights under the Fourteenth Amendment. Part III will analyze the limits that the Supreme Court has hitherto placed on parental rights, taking the defined limits of these rights in light of claims of religious freedom into special consideration. Parts IV and V will respond to anticipated critiques of the proposed legislation, focusing on the potential ease with which the legislation may be evaded and the ramifications that the legislation may have with respect to parental rights. Finally, Part VI will provide several policy justifications for the proposed legislation.

*. Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Philosophy 2016, Santa Clara University. Thank you to my parents, Josh and Barbara, for all of their encouragement and support. In addition, thank you to Professor Camille Gear Rich for encouraging me to pursue this topic and for her guidance during the drafting of this Note, and to Professor Scott Altman for his insight during the editing process. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

View Full PDF

Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA – Note by Ha Chung

Note | Environmental Law
Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA 
by Ha Chung*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 307 (2020)

Keywords: California Environmental Quality Act, Environmental Review Requirement

Although CEQA plays an important role in protecting communities from significant adverse environmental impacts, its self-executing nature allows it also to be used as a tool to halt or impede development for the wrong reasons. While many CEQA disputes are based on legitimate environmental concerns, CEQA litigation is also used to prevent development for discriminatory or nonenvironmental reasons. CEQA litigation is an attractive vehicle for this purpose due to overly broad standing requirements, unpredictable judicial results, extreme remedies, and attorney’s fees awards. Projects impeded by CEQA litigation include multifamily residential projects, homeless housing, health clinics, youth centers, and a multitude of other quasi-public uses. Since CEQA lacks uniform standards, local governments and developers must resort to costly overcompliance and guess work when confronted with the threat of litigation. To remedy the problem of CEQA abuse and unpredictability, this Note proposes moving away from judicial enforcement of CEQA and creating a state or regional agency dedicated to regulation, enforcement, and adjudication of CEQA.

Part I of this Note reviews CEQA processes, the history of exclusionary and discriminatory land use policies, and evidence of CEQA’s misuse for discriminatory and nonenvironmental reasons. Part II of this Note explores why CEQA is such an attractive tool for people to oppose development projects for exclusionary or nonenvironmental reasons and concludes that the judicial system is unsuitable for primarily enforcing CEQA. Part III proposes a dedicated agency that would handle adjudication, enforcement, and legislation under CEQA and discusses how the agency may fit into the broader environmental review process.

*. Senior Submissions Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.S. Environmental Science 2014, University of California, Los Angeles. I would like to thank Professor Robert H. Freilich for valuable guidance and feedback on earlier drafts of this note. In addition I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

View Full PDF

Charity for All: A Modern Call for a Renewed Commitment to Charitable Giving – Note by Joey Bloodworth

Note | Tax Law
Charity for All: A Modern Call for a Renewed Commitment to Charitable Giving 
by Joey Bloodworth*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 273 (2020)

Keywords: TCJA, Charitable Giving, Income Tax Deduction

This Note will center on the TCJA’s unpopularity, the charitable contribution deduction, and the adverse effect the TCJA is projected to have on charitable giving. It will conclude that now is an optimal time to expand the charitable contribution deduction. The expansion of the charitable contribution deduction would likely be popular for many of the same reasons that the TCJA is currently unpopular. The proposed expansion will also address some of the problems with charitable giving created or exacerbated by the TCJA…

This Note will use various tax-policy projections regarding the effects of the TCJA for tax year 2018. These projections cannot account for all outside variables, such as the state of the economy, which is affected by many factors besides taxation. With this in mind, the aspects of this Note that rely on the projections are tax policy specific, and the outside variables that affect the actual tax year 2018 statistics are not themselves within the scope of this Note. Therefore, unless there are significant, long-term, unexpected outcomes to the TCJA that lead to the alteration of tax policy projection methods, the projections can reasonably be used as data for the purposes of this Note.

*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; M.Acc. 2017, University of Arkansas; B.S.B.A. Accounting 2017, University of Arkansas. I could never thank my Mom, Dr. Dorothy Munch, and Dad, Judge John Bloodworth, enough for their unending support and unwavering belief in me. I would also like to thank my note advisor, Professor Edward McCaffery, the entire Southern California Law Review, and my support system at school, especially Kelsey Falkenberg.

View Full PDF