Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection by Rosie Frihart-Lusby

Note | Constitutional Law
Unconstitutional or Just Bad Policy? Title IV-E’s AFDC “Lookback” and the Constitutional Guarantee of Equal Protection
by Rosie Frihart-Lusby*

Vol. 93, Note (December 2020)
93 S. Cal. L. Rev. Note 1069 (2020)

Keywords: Foster Care Funding, AFDC, Equal Protection Analysis 

INTRODUCTION

This Note will consider one possible means for judicially striking down the AFDC Lookback: that it is a classification so arbitrary it violates the Equal Protection clause implicit in the Fifth Amendment. In Section I, I describe in greater depth the structure of foster care funding and the distinct roles played by the federal and state governments in the provision of funds. Next, in Section II, I elaborate on the history of the AFDC Lookback and attempt to pinpoint a rationale for its continued inclusion in the Social Security Act. In Section III, I enumerate and briefly explain common arguments as to why the AFDC Lookback is bad policy. Section IV includes a brief overview of Equal Protection doctrine—both the traditional approach utilizing tiered scrutiny and Justice Thurgood Marshall’s alternative slidingscale approach. Then in Section V, I consider the level of scrutiny a court might apply to the Lookback. Finally, in Section VI, I analyze the AFDC Lookback under both the traditional approach and Justice Marshall’s slidingscale approach, concluding in both cases that the AFDC Lookback is likely a Fifth Amendment Equal Protection violation.

____________________

*. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.A., History and Film Studies 2011, University of Tulsa. Thank you, first and foremost, to Professor Clare Pastore, whose guidance and feedback throughout this process was as useful as it was thoughtfully given. Thank you to the experts and practitioners who graciously shared their time and knowledge as this Note evolved, including Professor Dara Barker, Adam Cherensky, Judge Amy Pellman, Rachel Stein, Tyler Sutherland, Professor Karen Ullman, and Professor Kimberly West-Faulcon. Thank you to the editors of the Southern California Law Review for their excellent work. Finally, thank you to my family and friends who not only offered support during this process but also served as volunteer editors.

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. 

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.

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Rethinking Racial Entitlements: From Epithet to Theory – Article by Tristin K. Green

Article | Race and Legal Theory
Rethinking Racial Entitlements: From Epithet to Theory
by Tristin K. Green*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 217 (2020)

Keywords: Racial Entitlements, Voting Rights Act, Affirmative Action, Title VII

Abstract

From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.

In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.

Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.

*. Professor of Law, University of San Francisco School of Law. This Article benefited from participation in the UCLA Critical Race Studies Symposium: Whiteness as Property (2014), where I first presented the idea, and the panel on Law, Discrimination, and Constructions of Inequality at the Annual Law and Society Meeting in Mexico City (2017), as well as from presentations at the University of Washington School of Law and USF School of Law. I also owe thanks to Rachel Arnow-Richman, Angela Harris, Peter Honigsberg, Osamudia James, Yvonne Lindgren, Orly Lobel, Rhonda Magee, Gowri Ramachandran, Jalen Russell, Leticia Saucedo, Michelle Travis, and Deborah Widiss for feedback on drafts. Most of all, thanks to Camille Gear Rich for intense re-tooling and inspired conversation about racial entitlements and more.

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

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

by R. George Wright*

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

Keywords: Commerce Clause

 

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III.  Diagnosing the Commerce Clause Boundary Area Problems

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV.  The Role of Fundamental Rights and Legal Symbolism

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

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

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

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

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

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

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

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

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

Conclusion

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

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

 


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

 [1]. U.S. Const. art. I, § 8, cl. 3.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 [28]. See infra Part I.

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

 [30]. See id. at 193–94.

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

 [32]. See infra Part III.

 [33]. See infra Part III.

 [34]. See infra Part IV.

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

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

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

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

 [39]. See id. at 193.

 [40]. Id.

 [41]. See id. at 194.

 [42]. See id.

 [43]. See id.

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

 [45]. See id.

 [46]. See id.

 [47]. See id.

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

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

 [50]. Id.

 [51]. Id.

 [52]. Id.

 [53]. See id. at 196.

 [54]. See id.

 [55]. See id.

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

 [57]. See id.

 [58]. See id.

 [59]. See id.

 [60]. See id.

 [61]. See id.

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

 [63]. Hill, 927 F.3d at 201.

 [64]. Id.

 [65]. Id.

 [66]. Id.

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

 [68]. See id.

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

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

 [71]. See id. at 205.

 [72]. See id.

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

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

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

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

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

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

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

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

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

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

 [83]. See infra Part III.

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

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

 [86]. See id. at 193–95.

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

 [88]. Id. at 194.

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

 [90]. See id.

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

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

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

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

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

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

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

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

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

 [100]. See id. at 114–15.

 [101]. See id. at 127.

 [102]. Id. at 127–29.

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

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

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

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

 [107]. See infra Part III.

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

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

 [110]. See infra Part III.

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

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

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

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

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

 [116]. See infra Part IV.

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

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

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

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

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

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

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

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

 [125]. See id. at 88.

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

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

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

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

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

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

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

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

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

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

 [136]. Id. at 78.

 [137]. See id. at 79, 81, 83.

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

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

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

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

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

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

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

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

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

 [147]. See, e.g., supra note 146.

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

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

 [150]. See supra notes 147148.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 [166]. See id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

On Immigration, Information, and the New Jurisprudence of Federalism – Note by Nathaniel F. Sussman

Article | Immigration Law
On Immigration, Information, and the New Jurisprudence of Federalism
by Nathaniel F. Sussman*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 129 (2019)

Keywords: Section 1373, Anti-Commandeering Doctrine, Murphy v. NCAA

 

This Paper argues that in the wake of the Supreme Court’s 2018 decision, Murphy v. NCAA—a case completely unrelated to immigration—there is now a single best answer to the constitutional question presented in the ongoing sanctuary jurisdiction cases. The answer is that the Trump Administration’s withholding of federal grants is indeed unconstitutional, but this is because Section 1373, the statute on which the Executive’s actions are predicated, is itself unconstitutional. Specifically, this Paper argues that the expansion of the anti-commandeering doctrine under Murphy provides a tool by which the federal appellate courts can invalidate Section 1373 as an impermissible federal regulation of state and local governments. By adopting this approach, courts can surpass the comparatively surface-level questions about the Executive’s power to enforce a particular federal statute, and instead address the more central issue: the existence of Section 1373.

This argument proceeds in the following stages. Part I provides a background for each of the central concepts in this analysis. These include (1) an explanation of the anti-commandeering doctrine in its pre- and post-Murphy forms, (2) a description of Section 1373, (3) a working definition of “sanctuary jurisdictions,” and (4) a brief overview of the sanctuary jurisdiction cases decided to date. Part II argues that, in light of the Supreme Court’s decision in Murphy, there is no question that Section 1373 is subject to anti-commandeering claims. Part III then argues that, as a matter of doctrine, Section 1373 should fail to withstand such claims because it does not qualify for any exceptions to the anti-commandeering rule. Finally, Part IV argues that, aside from Supreme Court precedent, there are a series of independent, normative reasons to strike down Section 1373. This Paper concludes that Section 1373 should be held unconstitutional in its challenge before the higher federal courts, including the Supreme Court of the United States if necessary, and that such a ruling is the most desirable method of resolving the sanctuary jurisdiction cases.

*. Executive Articles Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; M.S. Philosophy 2017, The London School of Economics and Political Science; B.A. Political Science 2016, University of Western Ontario. I am grateful to Professor Rebecca Brown for her invaluable guidance throughout this Paper’s development.  I also thank my family, friends, and peers at USC Gould for their helpful feedback on the presentation and substance of my arguments.  Finally, I thank the fantastic team of editors at the Southern California Law Review for their diligent and thoughtful work throughout the publication process.

 

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