Transgender Rights & the Eighth Amendment

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019—the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person. Other state departments of corrections will surely follow, as they must under the Eighth Amendment. These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy. But they trend in one direction: toward a recognition of the rights and dignity of transgender people.

* Jennifer L. Levi, Professor of Law, Western New England University Law School.

† Kevin M. Barry, Professor of Law, Quinnipiac University School of Law. Thanks to Shannon Minter for thoughtful advice; to the Southern California Law Review staff for editorial assistance; and to Lexie Farkash for research assistance.

Designing Supreme Court Term Limits

Since the Founding, Supreme Court Justices have enjoyed life tenure. This helps insulate the Justices from political pressures, but it also results in unpredictable deaths and strategic retirements determining the timing of Court vacancies. In order to regularize the appointments process, a number of academics and policymakers have put forward detailed term-limits proposals. However, many of these proposals have been silent on several key design decisions, and there has been almost no empirical work assessing the impact that term limits would have on the composition of the Supreme Court.

This Article provides a framework for designing a complete term-limits proposal and develops an empirical strategy to assess the effects of instituting term limits. The framework we introduce outlines the key design features that any term-limits proposal must make, including frequently overlooked decisions like what the default would be if there is Senate inaction on a president’s nominee. The empirical strategy we develop uses simulations to assess how term-limits proposals would have shaped the Court if they had been in place over the last eighty years of American history. These simulations enable comparative assessments of term-limits proposals relative to each other and to the historical status quo of life tenure. Using these simulations, we are able to isolate the design features of existing proposals that produce significant differences in the composition of the Supreme Court. For instance, proposals that commence appointing term-limited Justices immediately could complete the transition in just sixteen years, but proposals that wait until after the sitting Justices leave the Court to appoint term-limited Justices would take an average of fifty-two years to complete the transition. Our results also reveal that term limits are likely to produce dramatic changes in the ideological composition of the Court. Most significantly, the Supreme Court had extreme ideological imbalance for sixty percent of the time since President Franklin Roosevelt’s effort to pack the Court, but any of the major term-limits proposals would have reduced the amount of time with extreme imbalance by almost half.

          *     Professor of Law, University of Chicago Law School. J.D. 2013, Ph.D. 2013, A.M. 2012, Harvard University. M.A., B.A. Yale University, 2007.

          †     Treiman Professor of Law, Washington University in St. Louis. J.D. Harvard University 2008, A.B. Duke University 2004.

          ‡     Associate Professor of Law, Washington University in St. Louis. Ph.D., 2015, Cornell University. J.D. 2011, Washington University. B.S.E. 2008, Grand Valley State University.                  

††         Professor of Public Policy, Harvard Kennedy School. Ph.D. 2012, A.M. 2011, A.B. 2000, Harvard University. J.D. 2004, Stanford University. For helpful conversations and comments, we are grateful to Gabe Roth and participants at workshops at the University of Chicago Law School, Washington University School of Law, NYU Law School, and the American Law & Economics Association Annual Meeting.

The Constitutional Right to Travel Under Quarantine

The constitutional right to travel has long been an enigma for courts and academics alike. Despite being widely recognized and regularly applied, relatively little has been written about the breadth or limits of this constitutional guarantee. This gap is particularly striking in the context of restrictive measures designed to curb the spread of a dangerous disease, like quarantines. Although travel rights are directly implicated by such regulations, the law of quarantines (to the limited extent that one has been developed) has almost entirely disregarded the constitutional right to travel. This Article seeks to close this gap by building a detailed model of the Constitution’s protections of movement and travel and then applying this model to quarantines and similar regulations aimed at controlling the spread of a contagious disease. In so doing, this Article makes contributions to the fields of constitutional law and health law, while providing a robust framework of immediate use to policymakers, courts, and litigants responding to the COVID-19 pandemic.

The Expressive Fourth Amendment

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all racesmarching, screaming, and demonstrating against police brutality and for racial justice.Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first Part of this Article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second Part of this Article reviews circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation to analyze how courts currently evaluate, in section 1983 Actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor. This Part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third Part of this Article argues that the Fourth Amendment mandates courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the Framers’ intent and Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth Part of this Article discusses the difference an expression-specific Fourth Amendment—the expressive Fourth Amendment—reasonableness test would have made in one of the circuit protest cases.

You’re fired: The Original meaning of Presidential Impeachment by ames C. Phillips* & John C. Yoo†

Article | Consitutional Law
You’re Fired: The Original Meaning of Presidential Impeachment
by James C. Phillips* & John C. Yoo†

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1191 (2021)

Keywords: Impeachment, Mueller Report, Federalist

 

In 2020, for just the third time in its history, the Senate conducted an impeachment trial of the President. While the 2020 case of President Donald Trump presented different facts than those of President Andrew Johnson in 1868 or President Bill Clinton in 1998, the Senate rendered the same verdict of acquittal. Initial investigations had probed whether President Trump or his campaign had coordinated with Russia to influence the 2016 elections, and then pursued the possibility of obstruction of the investigations themselves. But when the Justice Department decided that it could not indict a sitting President, Congress focused its inquiry on whether President Trump had withheld foreign aid from Ukraine until its leaders launched an investigation into his opponent in the 2020 election, then-former Vice President and current President Joseph Biden.

Whether Congress could constitutionally remove President Trump through impeachment raises questions as old as the Republic and facts as new as social media. The Constitution uses language to define the grounds for impeachment, such as “high Crimes and Misdemeanors,” that remains a mystery today. Does impeachment require a federal crime, or can it include abuses of power and obstruction of Congress? How would Congress define these “high Crimes and Misdemeanors” in a neutral way that would not deter future Presidents from invoking their legitimate authority or unduly place the executive under legislative control? Can Congress remove the President because of a good-faith disagreement over the scope of executive power or the meaning of the Constitution itself? Even if impeachment included noncriminal acts, does the Constitution require that the offenses rise to a level of seriousness that justify removal? President Trump’s case raised the further question whether Congress could remove the President for actions that had a plausible public interest, or whether the legislature need only find that the President had pursued personal interests as well. The 2020 trial finally asked whether impeachment provides the only remedy for presidential misconduct, or whether the Constitution provides other remedies.

This Article seeks to answer these questions by examining the original understanding of presidential impeachment. We undertake this analysis both because the Framers’ work formed the central basis for both the prosecution and defense cases during the President Trump’s first impeachment and because other guides to constitutional meaning are lacking. As the Supreme Court has decided that impeachment qualifies as a “political question” outside Article III’s case or controversy requirement,[1] these questions have no legal answers from traditional sources, such as judicial opinions. Practice also provides little help. The House of Representatives has impeached only two other Presidents in American history. In the wake of President Abraham Lincoln’s assassination, Republicans in Congress found their plans for a radical reconstruction of the South frustrated by the new President Andrew Johnson, a Southern Democrat who favored a more lenient peace.[2] In 1868, the House impeached President Andrew Johnson for conducting himself in office in a disgraceful, yet not illegal, manner. President Johnson broke prevalent norms by speaking directly to the people to lobby for legislation and attacking Congress as “traitors.” Congress responded by including an article of impeachment for his unacceptable rhetoric.[3] To strengthen their case, congressional Republicans made it a crime for the President to fire his cabinet officers without their consent—a law that the Supreme Court would later find an unconstitutional infringement of the President’s removal power.[4]

Exactly 130 years later, the House flexed its impeachment powers for only the second time in its history, but over the sordid and banal rather than the high and mighty. Rather than the reconstruction of the nation after a terrible Civil War, the impeachment of President Bill Clinton asked whether the President had committed perjury about his affair with a White House intern, Monica Lewinsky. The President had committed a crime, but the independent counsel, Kenneth Starr, concluded that the Justice Department could not indict a sitting President, much as it would almost two decades later. Instead, Starr referred the case to Congress to decide whether to take action. While the House impeached along a party-line vote, the Senate refused to convict, also on a close party-line vote. It seemed that President Clinton’s argument that he had only lied about sex and had not committed any harm to the nation on a par with treason or bribery, seemed to carry the day. But the partisan nature of the vote also suggested that impeachment and removal would become a test of party discipline, in that Presidents would likely survive so long as they could maintain the support of thirty-four Senators of their party.

A third President, Richard Nixon, likely would have faced impeachment and removal had he not resigned on August 9, 1974. Both a special counsel and the House had launched probes into a burglary of Democratic Party offices at the Watergate Hotel during the President’s reelection campaign. After the Supreme Court ordered President Nixon to obey a subpoena for White House tapes of meetings where the President had allegedly ordered the cover-up of the break-ins, the Judiciary Committee reported three articles of impeachment to the full House. President Nixon resigned before the House could vote but only after he had met with delegations of Republican congressmen who told him that he would likely lose the votes in Congress. While the committee had considered a wide variety of charges, such as bombing Cambodia without congressional authorization and tax cheating, in the end it recommended impeachment only for obstruction of the special counsel investigation, impeding the House’s probe, and for violating the individual rights of his political enemies through misuse of the CIA, FBI, and IRS. Unlike the Johnson and Clinton examples, however, President Nixon’s case never came to a vote in the House, not to mention a full trial in the Senate. It is difficult to conclude, therefore, that President Nixon’s resignation creates some kind of precedent in the way that the 1868 and 1998 examples might.

It is not even clear that the Nixon case or even the Johnson and Clinton impeachments should create any precedent, in a judicial sense, for Congress. In both the Johnson and Clinton cases, the Senate refused to convict. It could have found that the House had not “proved” its facts, though in both cases the facts seemed fairly clear. President Johnson had indeed fired his Secretary of War without the consent of Congress; President Clinton had lied to prosecutors in a deposition recorded on video. If the facts were proven, then the Senate must have acquitted because they did not amount to high crimes and misdemeanors as defined by the Constitution. But the Senate leaves behind no written opinion to explain its decision because it acts much as a jury in a criminal trial to solely determine conviction. Therefore, we can draw no firm legal precedents from these earlier impeachments.

A previous Senate, moreover, could not bind a future Senate to its interpretation of the constitutional standards on impeachment. One Congress generally cannot bind a future Congress; as with all three branches of government, Congress can simply undo any action by a past Congress by passing a repealing law or rule. The Senate that tried President Andrew Johnson may well have concluded that it should not remove a President for exercising the executive power to fire cabinet officers. It could have believed that the exercise of constitutional power could not qualify as a high crime or misdemeanor, or it could have thought the President had to actually violate federal criminal law. But the Reconstruction Senate never took a vote, issued an opinion, or enacted an internal rule that interpreted the standard for impeachment. Even if it had, a contemporary Senate could change any rule or opinion by majority vote, just as the Senate changed the filibuster rule to exclude judicial and cabinet appointments. Senators who wanted to follow the Johnson or Clinton impeachments as some sort of precedent would have to appeal to tradition, rather than any legal rule, to govern a Trump impeachment.

Without any legal precedents, or even any system of binding practice, the original understanding of the Constitution becomes magnified in importance. The Constitution does not provide for the trial or punishment of a sitting President by prosecutors or a regular court. Instead, the Impeachment Clause creates a means to remove “the President, Vice President, and all civil Officers of the United States.”[5] It vests the power to impeach in the House and specifies no vote requirement, so we have always assumed it occurs by majority vote. Impeachment amounts to an indictment in a criminal case, in which prosecutors decide they have enough evidence to bring a prosecution before a jury. Vesting the power in the House, rather than prosecutors or judges, could suggest that impeachment will not fall solely within the preserve of law, but will involve politics as well. Without any reading of the Impeachment Clauses based on legal authorities, Congress might allow politics to overwhelm law in its indictment and trial of Presidents. Then-House Minority Leader Gerald Ford, for example, defended the impeachment of Justice Douglas because “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”[6]

Our analysis reveals new sources of materials that make the first Trump impeachment more complex than presented in the trial, debates, and media commentary. Contrary to the claims of President Trump’s defense, we find that the Framers understood “high Crimes and Misdemeanors” to include conduct that went beyond the violation of federal criminal law. Such offenses could include abuse of power; but we also conclude that these acts had to inflict serious harm upon the nation. A President could commit a crime, but it would not impose sufficient injury upon the public to justify removal (as with the Clinton example). A President could also commit no crime, but his misconduct or negligence could so harm the nation as to justify removal from office. We also find that the Framers were so worried that Congress would turn impeachment toward partisan political purposes that they erected the two-thirds requirement for conviction to preserve executive independence. Instead of impeachment, the Framers expected that elections would provide the primary check on presidential misconduct.

This Article proceeds in three parts. Part I reviews the investigations into President Trump, his first impeachment and trial, and his acquittal. Part II uses both new and old techniques to recover the history of the drafting and ratification of the Constitution. We use computerized textual analysis—corpus linguistics—of British materials pre-dating the Constitution’s framing to analyze what those of the founding generation would have believed the phrase “high Crimes and Misdemeanors” meant. We then examine the drafting and ratification of the Constitution to understand how the Founders expected the Impeachment Clauses to work. Part III draws forth lessons from this history and applies them to the issues raised by the Trump impeachment.

 


        *        Assistant Professor of Law, Dale E. Fowler School of Law, Chapman University. We received helpful comments from Jesse Choper, who has now witnessed seventy-five percent of all presidential impeachments. The authors wish to thank Francis Adams, Min Soo Kim, Darwin Peng, David Song, and the research librarians at Chapman University’s Fowler School of Law for research assistance.

       †     Emanuel S. Heller Professor of Law, University of California at Berkeley Law School; Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution, Stanford University. Professor Yoo thanks the Thomas W. Smith Foundation for support.
         [1].     Nixon v. United States, 506 U.S. 224, 253 (1993).

         [2].     See Michael Les Benedict, The Impeachment and Trial of Andrew Johnson 87 (1973).

         [3].     Jeffrey K. Tulis, Impeachment in the Constitutional Order, in The Constitutional Presidency 229, 232 (Joseph M. Bessette & Jeffrey K. Tulis eds., 2009).

         [4].     Myers v. United States, 272 U.S. 52, 176 (1926).

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

         [6].      Kenneth C. Davis, The History of American Impeachment, Smithsonian Mag. (June 12, 2017), https://www.smithsonianmag.com/history/what-you-need-know-about-impeachment-180963645 [https://perma.cc/56EW-YKLU].

 

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Time to Go Auer Separate Ways: Why the Bia Should not Say What the Law is by Tatum Rosenfeld

Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*

From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)

Keywords: Board of Immigration Appeals (“BIA”), Auer

Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.

The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns. 

This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.

This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether
Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. 
The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.

This Note proceeds as follows: Part I briefly details a background of the BIA, and a current understanding of Auer deference. This discussion includes Auer’s political implications, and how the Supreme Court chose not to overrule the doctrine in Kisor v. Wilkie. This Section then explores the relationship between Auer and the BIA, including why the BIA’s political vulnerability makes the agency particularly unfit for Auer deference. Certain appointees to this agency have been rewarded with a position as a board member by openly declaring their hostility to the very people who are the object of the agency’s mission, and whose fragile life prospects are in their hands. Ironically, this flips the partisan commitments normally seen in the world of administrative law as follows: Those who would classically support increasing agency discretion by according Auer deference should be worried about giving heightened power to the self-declared, anti-immigrant agenda pervading the BIA, while those who would classically resist excessive delegation and deference to agencies, because of their limited accountability, seek to endow the BIA with vast independence and partisan manipulation. Part II argues that even in the wake of Kisor v. Wilkie, deference to the BIA’s interpretations of immigration regulations presents a heightened threat to constitutional principles of separation of powers and democracy. Part III then provides a potential solution to the inadequacy of Auer deference and the judicial role in the realm of regulatory gap filling for immigration laws. 
 

* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.

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Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting

Note | Constitutional Law
Get Out the Vote (or Else): Testing the Constitutionality of Compulsory Voting
by Ryan Eason*

94 S. Cal. L. Rev. 963 (2021)

Keywords: Election Law, Voting, Constitutional Law

The Preamble to the United States Constitution envisions a nation governed by “We the People.”1 The United States has never been governed by the people, however. Instead, the United States is and always has been run by the voters. Voters are wealthier, more educated, older, and whiter than “the People.”2 These differences have consequences. Since voters hold the key to lawmakers’ job security, representatives are often more responsive to voters’ interests than nonvoters’ interests.3

The reason voters differ so much from the population4 as a whole is that voter turnout is consistently low in the United States. In federal midterm elections since the passage of the Voting Rights Act in 1965, voters have only constituted an average of 41.4% of the population.5 Even in presidential elections, in which voters usually do make up a majority of the population, the majority is usually bare.6 Consequently, the winners of those elections

are chosen by nowhere near a majority of the population. For example, President Donald Trump was elected by roughly 27% of the population in 2016.7 Even President Joe Biden, who won the largest number of votes for a presidential candidate in United States history, was elected by roughly 34% of the population in 2020.8 These low voter turnout figures set the United States apart from most of the developed world.9

Of course, low levels of voter turnout do not delegitimize elections in the United States. Other major democracies also do not achieve full voter turnout.10 Electoral legitimacy would be impossible to realize if it depended on full voter turnout in every election. However, many argue that low voter turnout in the United States is a serious problem.11 To the extent a country values majoritarianism,12 its elections arguably serve that purpose better

when the gap between its voters and its population is minimized. One day, Congress may agree with this argument. Therefore, this Note imagines a world in which Congress takes a decisive step to fix low voter turnout: compel every eligible American adult to vote.13

Congress is unlikely to pass such a transformative piece of legislation in the near future. However, it might enact compulsory voting someday. Far from being a fringe or radical idea, it has been implemented by several democracies,14 and it has been successful where actually enforced.15 Indeed, commentators often cite compulsory voting as a solution to the United States’ low voter turnout problem.16 Compulsory voting legislation has even been recently proposed at the statewide level in California.17

But if Congress decided to pass compulsory voting legislation, it would face a substantial and unanswered question: would it be constitutional? This Note intends to answer that question by analyzing how compulsory voting would fare in various constitutional challenges.18 Part I explores how compulsory voting might be structured in the United States if Congress based its legislation on Australia’s. Part II addresses the most likely constitutional challenges to compulsory voting. The structural argument addressed in Section II.A concerns whether Congress has the constitutional power to pass compulsory voting if it conflicted with state legislation. I conclude that it does because the Elections Clause gives Congress the power to supersede

state election regulations, even when states have not acted. The rights-based arguments addressed in Section II.B concern whether compulsory voting would violate the right not to speak or a potential right not to vote. I conclude that while the voting is expressive conduct, compulsory voting would not violate the First Amendment by compelling it. I also conclude that there is likely no such thing as a right not to vote. However, if there is a right not to vote, the interests served by compulsory voting would outweigh the light burden upon it. Finally, Section II.C argues that compulsory voting legislation could be legally justified as a tax.

__________________________________________________________________________________________________________

*.2021, University of Southern California Gould School of Law. This Note has benefited greatly from the guidance of Professor Sam Erman; the support from my fiancée, Katie Bayard; and the astute editing of my colleagues at the Southern California Law Review.

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The Certificate of Division and the Early Supreme Court by Jonathan Remy Nash and Michael G. Collins

Article | Constitutional Law
The Certificate of Division and the Early Supreme Court
by Jonathan Remy Nash* and Michael G. Collins†

94 S. Cal. L. Rev. 733 (2021)

Keywords: Constitutional Law; Certification by Division

The history and development of Supreme Court review over state courts in the early republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.

As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely studied practice. In addition, because review was obligatory when there was division, disagreement between the judges

was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.

*. Robert Howell Hall Professor of Law and Associate Dean for Research, Emory University School of Law; Director, Center on Federalism and Intersystemic Governance, Emory University School of Law; Director, Center for Law and Social Science, Emory University.

†. Joseph M. Hartfield Professor of Law and Joseph W. Dorn Research Professor of Law, University of Virginia School of Law. We are grateful to Barry Cushman, Miguel de Figueiredo, Deborah Dinner, Michael Gilbert, Daniel Klerman, Ronald Krotoszynski, Leandra Lederman, Kay Levine, Caleb Nelson, Barak Richman, Fred Smith, Dane Thorley, Ted White, John Witte, and Ann Woolhandler for helpful discussions and suggestions and to Kedar Bhatia, Lucy Gauthier, and Justin Ian Sia for excellent research assistance. We received valuable feedback from presentations at the Midwest Political Science Association annual meeting (especially the input of Justin Wedeking, who served as discussant for the paper), the Canadian Law and Economics Association annual meeting, and the Midwestern Law and Economics Association annual meeting.


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How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It by Abigail Sellers

Article | Consitutional Law
How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It
by Abigail Sellers*

From Vol. 94, No. 3
94 S. Cal. L. Rev. 691 (2021)

Keywords: First Amendment, Reproductive Health, Abortion, Roe v. Wade

On May 15, 2019, Alabama Governor Kay Ivey signed the Alabama Human Life Protection Act into law.1 The Act imposes serious punishments on doctors who perform an abortion unless it “is necessary in order to prevent a serious health risk to the unborn child’s mother,” there is an ectopic pregnancy, or the fetus has a “lethal anomaly.”2 Notably, the Act does not provide an exception for pregnancies resulting from rape or incest.3 Of particular interest to this Note are statements made by Alabama lawmakers indicating this law was passed to comport with their and Alabama citizens’ religious belief that “every life is a sacred gift from God.”4 Furthermore, Alabama lawmakers are keenly aware the law is in violation of a woman’s right to terminate a pregnancy as protected under the Fourteenth Amendment Due Process right to privacy.5 In fact, the Act was designed to challenge the cases establishing and upholding this right—Roe v. Wade and Planned Parenthood v. Casey—in the hopes that the Supreme Court will overrule these precedents.6

Even more disconcerting to reproductive health advocates, Alabama was only one of seven states that passed laws in 2019 severely restricting access to abortions.7 The six other states—Georgia, Kentucky, Louisiana, Missouri, Mississippi, and Ohio—criminalized abortion after six to eight weeks of pregnancy when a fetal heartbeat can be detected.8 These are aptly referred to as “heartbeat laws.” The passage of these laws was marked by religious statements from state lawmakers, and some of these laws have been expressly designed to challenge Roe.9

With a challenge to each of these laws making its way through various federal courts,10 it is possible that the Supreme Court will hear a case involving one or more of these laws and will once again get a chance to reconsider its holdings from Roe and Casey.11 This Note will argue that the Court should never reach the privacy issue at the heart of Roe and Casey. Instead, exercising judicial restraint, the Court should decide only as much as is necessary to resolve the case in front of it12 and should deem the Alabama Human Life Protection Act and the six heartbeat laws unconstitutional under the First Amendment’s Establishment Clause. Under current Supreme Court precedent, when a law lacks a sincere secular purpose, it violates the Establishment Clause,13 and as the previously mentioned religious statements by lawmakers indicate, the purpose behind these laws is not secular. Thus, the Court should never reach the privacy issue.

This Note will (1) examine the history of the debate surrounding abortion in American politics to show how Roe and Casey are once again ripe to be challenged, (2) explain the need for a new approach to challenge the abortion laws in question based on the current composition of the Supreme Court, (3) argue that the laws violate the Establishment Clause, and (4) explain why an Establishment Clause claim is worth pursuing.

*. Editor-in-Chief, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biochemistry & B.A. Spanish, 2018, Arizona State University. I would like to thank Melissa Sellers, Dave Sellers, Perry Vargas, and the rest of my Sellers & Vargas family members for their support throughout my time in law school. I would also like to thank Professor Rebecca Brown for her feedback. Finally, many thanks to all the Southern California Law Review for their invaluable work on my piece.

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My Car Is My Castle: the Failed Historical Roots of the Vehicle Exception to the Fourth Amendment by Thomas J. Snyder

Article | Constitutional Law
My Car Is My Castle: the Failed Historical Roots of the Vehicle Exception to the Fourth Amendment
by Thomas J. Snyder*

Vol. 93, Article (December 2020)
93 S. Cal. L. Rev. Postscript 987 (2020)

Keywords: Collection Act of 1789, Fourth Amendment, Admiralty Jurisdiction, Border Exception

INTRODUCTION

This Article will demonstrate that the originalist argument in Carroll is based on an incorrect historical interpretation of the history of the Fourth Amendment. As discussed in greater detail below, the Carroll argument hinges on the allowance of warrantless ship searches by the First Congress (the same Congress that proposed the Fourth Amendment), coupled with a further analytic step of analogizing ship searches to land vehicle searches. This Article will show that warrantless ship searches were considered permissible under the Fourth Amendment because they were confined to federal admiralty jurisdiction at the time of the Founding. In contrast, land searches were treated differently by the First Congress. Thus, as this Article will demonstrate, the originalist argument in Carroll fails.

Finally, this Article will refute the pragmatic policy arguments offered by the Supreme Court to justify the vehicle exception. While policy arguments are not necessarily meritless, they are the weakest justifications in this instance, because the vehicle exception goes against both the text and the original intent of the Fourth Amendment. There are two main arguments in favor of a warrantless search exception: (1) the mobility of vehicles and (2) the substantial government regulation of vehicles. This Article will demonstrate that both rest on faulty premises that do not justify the abrogation of the Fourth Amendment warrant requirement.

Even upon its creation in 1925, the vehicle exception to the Fourth Amendment has always rested on a shaky ground. The time has come for the Supreme Court to overturn this exception and instead apply the text and history of the Fourth Amendment to require warrants for the search of vehicles.

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*. Ph.D. Candidate in History, University of Chicago; A.B. 2013, Harvard University; M.A. 2014, University of Chicago; J.D. 2018, Harvard Law School. He would like to thank Tracey Maclin for his very helpful comments and suggestions on an earlier draft of this Article.