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) —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.
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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.
Below, this Article introduces the relevant case law by examining the recent case of United States v. Hill, a federal Hate Crimes Prevention Act prosecution of a battery committed on a gay fellow-employee at an Amazon Fulfillment Center. There follows a brief tour of the most crucially relevant Supreme Court Commerce Clause jurisprudence, with an emphasis on current doctrine.
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. The vagueness problem impairs attempts to clarify the meaning and bounds of the language of the Commerce Clause.
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.
This Note will argue that although the CCPA was imperfectly drafted, much of the world seems to be moving toward a standard that embraces data privacy protection, and the CCPA is a positive step in that direction. However, the CCPA does contain several ambiguous and potentially problematic provisions, including possible First Amendment and Dormant Commerce Clause challenges, that should be addressed by the California Legislature. While a federal standard for data privacy would make compliance considerably easier, if such a law is enacted in the near future, it is unlikely to offer as significant data privacy protections as the CCPA and would instead be a watered-down version of the CCPA that preempts attempts by California and other states to establish strong, comprehensive data privacy regimes. Ultimately, the United States should adopt a federal standard that offers consumers similarly strong protections as the GDPR or the CCPA. Part I of this Note will describe the elements of GDPR and the CCPA and will offer a comparative analysis of the regulations. Part II of this Note will address potential shortcomings of the CCPA, including a constitutional analysis of the law and its problematic provisions. Part III of this Note will discuss the debate between consumer privacy advocates and technology companies regarding federal preemption of strict laws like the CCPA. It will also make predictions about, and offer solutions for, the future of the CCPA and United States data privacy legislation based on a discussion of global data privacy trends and possible federal government actions.
Until January 2018, under the border search exception, CBP officers were afforded the power to search any electronic device without meeting any standard of suspicion or acquiring a warrant. The border search exception is a “longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained . . . .” It provides that suspicionless and warrantless searches at the border are not in violation of the Fourth Amendment merely because searches at the border are “reasonable simply by virtue of the fact that they occur at the border . . . .” The CBP, claiming that the border search exception applies to electronic devices, searched more devices in 2017 than ever before, with approximately a 60 percent increase over 2016 according to data released by the CBP. These “digital strip searches” violate travelers’ First, Fourth, and Fifth Amendment rights. With the advent of smartphones and the expanded use of electronic devices for storing people’s extremely personal data, these searches violate an individual’s right to privacy. Simply by travelling into the United States with a device linked to such information, a person suddenly—and, currently, unexpectedly—opens a window for the government to search through seemingly every aspect of his or her life. The policy behind these searches at the border does not align with the core principles behind our longstanding First and Fifth Amendment protections, nor does it align with the policies behind the exceptions made to constitutional rights at the border in the past.
In order to protect the privacy and rights of both citizens and noncitizens entering the United States, the procedures concerning electronic device searches need to be rectified. For instance, the border search exception should not be applied to electronic devices the same way it applies to other property or storage containers, like a backpack. One is less likely to expect privacy in the contents of a backpack than in the contents of a password- or authorization-protected devices—unlike a locked device, a backpack can be taken, can be opened easily, can fall open, and also has been traditionally subjected to searches at the border. Moreover, there are many reasons why electronic devices warrant privacy.