Vol. 99, No. 2 Archives – Southern California Law Review

Sentencing Immigrants

March 2026March 2026Eric S. Fish*

Introduction

The most commonly charged federal felony is the crime of reentering the United States after deportation.¹ On average twenty thousand people have been prosecuted for it per year since 2010, making unlawful reentry cases about one-third of the federal criminal caseload.² And that number is about to dramatically increase. President Trump’s Department of Justice has announced a new policy of charging felony unlawful reentry in every available case, and it plans to reassign federal prosecutors working on drug and terrorism cases in order to prosecute more immigrants.³ Roughly 99% of the defendants in unlawful reentry cases are Latin American.⁴ The charge is, by definition, a nonviolent and victimless crime. It involves only entering or being found in the United States after a deportation. Yet defendants in these cases are systematically punished more harshly than comparable U.S. citizen defendants are in other cases. This happens in two ways.

First, the United States Sentencing Guidelines count reentry defendants’ criminal history against them twice. The Sentencing Guidelines are a complex set of rules that produce recommended sentences in federal criminal cases. While federal judges are not bound by the Guidelines, they follow the Guidelines about 90% of the time in unlawful reentry sentencings.⁵ In a standard criminal case, the Guidelines create a recommended sentence range by quantifying two variables: the defendant’s past convictions and facts about the current case. Past convictions create a “Criminal History Category” between one and six, while facts about the current crime create an “Offense Level” between one and forty-three.⁶ But in unlawful reentry cases, past convictions increase both the Criminal History Category and the Offense Level. Reentry defendants thus receive much larger sentence enhancements for their past crimes.

This double counting is worsened by another problem: the arbitrary way prior convictions are used to generate enhancements. The unlawful reentry guidelines make large swings in sentence length turn on obscure details of a person’s criminal history. This renders sentencing in these cases uniquely random and uncertain. Multiple years in prison turn on minutiae like the precise timing of a deportation order or probation violation, or whether a state uses a determinate or indeterminate sentencing system. People with similar criminal and immigration histories receive vastly different sentences based on such technical differences. And this problem is further compounded by the difficulty of finding and interpreting state conviction records. Figuring out the recommended sentence is like solving a high-stakes logic game. Defense lawyers are commonly unable to discern what length of sentence a defendant is looking at. And because the system pressures reentry defendants to plead guilty at the first opportunity, defendants often find out at sentencing that their punishment will be more severe than anticipated.

Second, undocumented immigrants serve a substantially larger portion of their sentences than do U.S. citizen defendants. The First Step Act, signed into law by President Trump in 2018, created a new system of “earned time” credits for federal prisoners.⁷ Under that law, a federal defendant who is willing to participate in anti-recidivism programs can get up to fifteen days off their prison sentence for every thirty days served.⁸ That means their time in prison can be reduced by up to one-third. In addition, defendants receive these credits even if they are not assigned to a program or no program is available. The only requirement is that they not refuse to participate. But deportable immigrants are prohibited from both participating in First Step Act programs and receiving custody reductions.⁹ This means that, by law, an undocumented prisoner will serve a significantly higher percentage of their sentence due to their immigration status.

To illustrate how this sentencing discrimination works in practice, consider two federal defendants: X and Y. Defendant X is charged with escaping from a federal prison, while defendant Y is charged with reentering the United States after deportation.¹⁰ Both X and Y have identical criminal histories: two prior felony convictions within the past fifteen years, each resulting in a two-year sentence. Under the Sentencing Guidelines, both X and Y will have a Criminal History Category of III due to the two prior felonies.¹¹ Assuming that there are no aggravating or mitigating facts (like using physical violence or returning to custody voluntarily), X will have an Offense Level of thirteen for escaping from prison.¹² Y will start with a lower Offense Level of eight for reentering the United States. But Y’s past convictions will also trigger enhancements of the Offense Level. If Y’s first deportation happened either before or after their two felony convictions, their total Offense Level will be sixteen.¹³ If their first deportation happened in between the two felony convictions, the Offense Level will be twenty-four.¹⁴ The Guidelines will recommend a sentence of eighteen to twenty-four months for X’s prison escape. And for Y’s reentry, they will recommend a sentence of either twenty-seven to thirty-three months or sixty-three to seventy-eight months (depending entirely on the timing of the first deportation). Unlawful reentry is the only federal crime for which criminal history is double counted like this. And once in prison, X will qualify for First Step Act programs that will let X spend up to one-third of their sentence out of custody or at a halfway house. Y, as a deported immigrant, cannot benefit from those programs.

As this example shows, these rules create two separate and unequal federal sentencing systems. Undocumented defendants, basically all of them Latin American, are treated more severely for their past crimes and are denied the lenient sentence reductions that U.S. citizens enjoy. And the enactment history of these policies reflects nativist animosity toward Latin American immigrants. The large recidivist enhancement for unlawful reentry was first created in 1991 with no study and little debate.¹⁵ It was enacted in response to Congress increasing the maximum sentence from two to fifteen years. That statutory change, in turn, was driven by racial panic in Florida over Haitian and Cuban refugees causing a supposed crime wave.¹⁶ The initial enhancement focused only on a small number of serious crimes, including murder and drug trafficking. But it evolved over time into a general enhancement for all past crimes. The First Step Act, in turn, was the first Trump Administration’s signature criminal justice reform initiative. Since the Trump Administration has been the most anti-immigration presidency in

recent memory, it is not surprising that the law excludes deportable immigrants from its earned time credit system.¹⁷

These sentencing rules explicitly discriminate against immigrants, and their history reflects racist and nativist antipathies. It might thus be logical to look to the Equal Protection Clause for a remedy, or to the federal statute mandating that the Sentencing Guidelines be “entirely neutral” as to race and national origin.¹⁸ But defendants trying to make such arguments have run into a problem—the Supreme Court’s antidiscrimination doctrines erect numerous obstacles to such equality claims.¹⁹ Federal laws that discriminate by immigration status are only subjected to “rational basis” review.²⁰ While these sentencing rules overwhelmingly burden Latin American defendants, the Supreme Court has disallowed racial discrimination claims that rely on disparate impact.²¹ And the Court adopts a strong presumption that government action is not motivated by racial animus.²²

But sentencing is not like judicial review. In the discretionary sentencing context, the judge is the legally designated decisionmaker. They are not reviewing the work of an agency or legislature. Federal judges are empowered to disregard the Guidelines and sentence a defendant anywhere within the statutory range.²³ The deference concerns that have hollowed out Equal Protection doctrine thus do not apply to discretionary sentencing decisions. In other contexts, scholars have identified circumstances in which executive branch agencies engage in “administrative constitutionalism”—incorporating constitutional norms into policy more robustly than formal legal doctrine requires.²⁴ Judges should also embrace a version of administrative constitutionalism at sentencing. Here I call this “sentencing constitutionalism.” Employing it, judges should reject sentencing rules that create racial and immigration-status-based hierarchies. And they should do so even if those rules would be upheld in the formal constitutional review context. Justice Kennedy gestured at something like this approach in Beckles v. United States.²⁵ In that case, the Supreme Court held that constitutional vagueness challenges do not apply to the Federal Sentencing Guidelines because they are advisory.²⁶ But Justice Kennedy wrote a concurrence arguing that quasi-constitutional vagueness arguments still have a place in the discretionary sentencing context.²⁷ Sentencing constitutionalism is also analogous to the idea of “imperfect” defenses in criminal cases. There are contexts in which a defendant cannot legally argue a defense like duress or self-defense, but the moral justification underlying that defense still clearly applies.²⁸ Judges will often reduce defendants’ sentences due to such imperfect defenses.²⁹ Sentencing constitutionalism operates the same way, but with constitutional equality claims in place of defenses.

Federal crack cocaine sentencing provides a powerful example of sentencing constitutionalism in practice, as well as a close analogue to the sentencing discrimination faced by immigrants. For sentencing purposes, the Guidelines initially treated one gram of crack cocaine the same as one hundred grams of powder cocaine.³⁰ This caused crack cocaine traffickers to be punished much more harshly than powder cocaine traffickers for the same volume of basically equivalent drugs. And this had a clear disparate impact by race because crack cocaine defendants were almost entirely African American.³¹ Much like the policy of double-counting immigrants’ criminal history, these crack sentencing rules were designed without formal deliberation or policy analysis,³² and were made in response to a congressional statute enacted during a racialized moral panic over crime.³³ The crack sentencing guidelines were ultimately upheld in direct constitutional challenges.³⁴ But many federal judges have exercised their authority to disregard the crack guidelines and adopt less discriminatory sentencing practices.³⁵ In doing so, these judges have adhered to a higher standard of antidiscrimination than formal doctrine requires. Judges should act similarly in the immigrant sentencing context. They should refuse to impose the discriminatory rules built into the Guidelines, and they should counteract the discrimination built into the First Step Act’s sentence reductions.³⁶

This Article has two goals: to describe how federal sentencing law discriminates against undocumented immigrants, and to propose a framework for judges to counteract that discrimination. It is organized into four Parts. Part I traces the history of federal immigrant sentencing over the last several decades, exploring how and why these unequal rules were adopted. Part II shows that these sentencing rules discriminate explicitly by immigration status, and in effect by race. Part III explains how the Guidelines’ double-enhancements for criminal history create a sentencing system where arbitrary details of a defendant’s criminal record dictate large (often multi-year) increases in their sentence. It also illustrates the problem with a real-life case. Part IV introduces the concept of sentencing constitutionalism. It argues that judges should exercise their inherent power over discretionary sentencing to counteract punishment rules that discriminate by race and immigration status. It also shows that federal judges have been doing precisely this in the context of crack cocaine sentences—varying downward to mitigate racial discrimination that has gone unredressed in formal legal challenges.

I. The Evolution of Undocumented Immigrant Sentencing

This Part explores how federal law crafted a separate sentencing system for undocumented immigrant defendants. It focuses on three key changes. First, in the late 1980s and early 1990s, three members of Congress from Florida—Lawton Chiles, Bob Graham, and Bill McCollum—successfully pushed to increase the maximum penalty for unlawful reentry from two to twenty years.³⁷ These legislators justified the increase by arguing that immigrants were causing a crime wave. They did so in reaction to a nativist panic in Florida over Cuban and Haitian immigration. Second, in response to this increase in the maximum penalty, the United States Sentencing Commission amended the unlawful reentry guidelines in 1991 to provide double sentence enhancements for prior convictions.³⁸ Those guidelines have changed significantly in the intervening years, most notably in 2001 and 2016. But they still punish unlawful reentry defendants more severely for past convictions than other federal defendants. Third, in 2018 Congress enacted the First Step Act with support from the Trump Administration.³⁹ Among other things, that law created a system of earned time credits that let federal prisoners reduce their custody time by up to a third. But, due to the Trump Administration’s antipathy toward Latin American immigrants, prisoners with deportation orders were excluded from earning such credits.

A. Florida’s Refugee Crisis and Reentry Sentences

Congress originally criminalized unlawful reentry in 1929, as part of the “Undesirable Aliens Act.”⁴⁰ The legislators who enacted it believed in scientific racism, and their goal was to limit immigration from Latin America in order to preserve the purity of the white race.⁴¹ The law established, among other things, that any noncitizen convicted of reentering the United States after deportation would face up to two years in prison.⁴² That unlawful reentry provision is now codified at 8 U.S.C. § 1326.

The sentences for unlawful reentry remained unchanged from 1929 until the late 1980s, when three members of Congress from Florida—Senator Lawton Chiles, Senator Bob Graham, and Representative Bill McCollum—sponsored a series of amendments that made the law harsher. To understand these legislators’ focus on punishing unlawful reentry more severely, one must appreciate Florida’s immigration politics in the 1980s and early 1990s.⁴³ During that period, large influxes of refugees from Cuba and Haiti sparked a racial panic.⁴⁴ In 1980, the Mariel boatlift brought nearly 125,000 Cubans and Haitians to Florida.⁴⁵ Thousands more Haitians arrived in Florida as refugees from the Duvalier regime, and later from the military government that overthrew President Aristide in a coup.⁴⁶ The presence of these immigrants caused a racist and nativist backlash among Floridians. The refugees were seen as carrying infectious diseases and creating a public health crisis.⁴⁷ They were also viewed as committing widespread crime.⁴⁸ Especially salient in Floridians’ minds was the specter of Latin American and Caribbean drug trafficking networks.⁴⁹ Florida’s politicians (including Chiles, Graham, and McCollum) stoked these nativist fears and responded to them with anti-immigrant measures.⁵⁰ The federal government incarcerated thousands of Cuban and Haitian immigrants in detention centers and jails.⁵¹ And Florida’s representatives in Congress sought, among other things, to increase the penalties for unlawful reentry.

The maximum sentence for unlawful reentry stayed at two years until 1988, when Senator Lawton Chiles proposed an amendment to increase it.⁵² Chiles’s amendment, which was attached to the Anti-Drug Abuse Act of 1988, increased the maximum penalty to five years for any defendant who was deported after a felony conviction.⁵³ It also increased the maximum to fifteen years for any defendant deported after an “aggravated felony” conviction (Senator Chiles’s original proposal was for a fifteen-year mandatory minimum sentence, but this was changed to an increased maximum in the final statute).⁵⁴ The term “aggravated felony” was introduced in the same legislation, as a way to designate crimes that will almost certainly result in deportation.⁵⁵ The term initially only applied to a small list of crimes—murder, drug trafficking, and firearms trafficking—but it was later expanded.⁵⁶ Along with the increase in reentry penalties, Chiles introduced a number of other amendments to make immigration enforcement more punitive. These included a provision increasing the penalties for immigrant smuggling, a provision making it a crime not to appear at deportation proceedings, and a provision denying bond in the immigration system for people with aggravated felony convictions.⁵⁷

In arguing for his amendments, Senator Chiles explicitly connected them to Florida’s panic over immigrant crime. In the committee hearing that he chaired presenting the proposals, he asserted in his opening statement that “an expansive drug syndicate established and managed by illegal aliens” was “so widespread and lucrative that they are attracting other aliens just to come into the illegal enterprise.”⁵⁸ He also claimed that “one of the largest and most widespread crack operations is run by illegal Haitians.”⁵⁹ Chiles elicited testimony from several Florida law enforcement witnesses, who testified that Haitian immigrants play a major role in the Florida drug trade, and that it is difficult to prosecute such immigrants due to them skipping bond or leaving the United States.⁶⁰ For example, one witness, an undocumented Haitian immigrant who was a police informant in Orlando, testified: “Many Haitians are brought into the United States illegally for the

sole purpose of dealing drugs and to recruit other Haitians for the drug business. These dealers are mixed with political refugees to hide their identity.”⁶¹

In Chiles’s speech introducing his proposed amendments on the Senate floor, he stated that “the number of illegal aliens who deal in crack in the Orlando area has increased 300 percent in the last year,” and that “these numbers are being duplicated throughout Florida.”⁶² He further warned that Florida was facing “expansive drug syndicates established and managed by illegal aliens.”⁶³ He claimed that “these syndicates operate many of the drug networks—crack, cocaine, and heroin—in Florida and throughout the United States.”⁶⁴ And also that “illegal alien felons . . . have no fear of or respect for our legal system.”⁶⁵ Chiles’s claims about the scope of immigrant drug activity were exaggerated and implausible.⁶⁶ Nonetheless, they were the major motivation behind his successful effort to increase reentry penalties. Chiles said the goals of the law were “creating a greater deterrent to alien drug traffickers who are considering illegal entry into the United States” and to “give law enforcement authorities a broader arena for prosecuting the drug offender.”⁶⁷

Several other legislative changes sponsored by Florida congressmen in the early 1990s also made § 1326 more punitive. In 1994, Representative McCollum successfully advocated an additional hike in the maximum sentences for unlawful reentry.⁶⁸ His amendment increased the maximum penalty to ten years for a defendant deported after a felony conviction, and to twenty years for a defendant deported after an aggravated felony conviction.⁶⁹ In addition, Representative McCollum and Senator Graham successfully sponsored several amendments that expanded the definition of “aggravated felony” to include a significantly longer list of crimes, many of them less serious.⁷⁰ Senator Graham also co-sponsored a provision that would have required the U.S. Sentencing Commission to increase unlawful reentry sentences for people deported after aggravated felony convictions.⁷¹ The proposal called on the Commission to “assign[] an offense level . . . that constitutes a meaningful deterrence to the commission of such offense.”⁷² Graham added this provision to Senate Bill 1711, titled “Implementing the President’s 1989 National Drug Control Strategy,” which passed in the Senate but did not ultimately become law.⁷³ A prosecutor testifying before a congressional subcommittee later described Graham’s proposal as “a ‘sense of the Congress’ recommendation to the Federal Sentencing Commission that would upgrade the penalty for an aggravated criminal felon who after conviction returns to the United States.”⁷⁴ Like Senator Chiles, Senator Graham and Representative McCollum were both focused on indulging Florida’s anti-refugee backlash.⁷⁵ They made unlawful reentry punishments harsher in response to the perceived immigrant crime wave in their home state. As the next Section will show, these three politicians’ efforts had enormous consequences for unlawful reentry sentencing.

B. Writing and Rewriting the Reentry Guidelines

In 1984, Congress enacted the Sentencing Reform Act and created the United States Sentencing Commission.⁷⁶ Three years later, the Commission published the first version of the United States Sentencing Guidelines.⁷⁷ The main purpose of these new Guidelines was to reduce sentencing disparities between judges.⁷⁸ They created a complex formula that takes facts about the defendant’s crime and past convictions as inputs, quantifies them into points,

and produces a sentencing range that judges were (until 2005) required to follow.⁷⁹

The Guidelines’ sentencing ranges are arrayed on a two-dimensional six by forty-three cell grid called the “Sentencing Table.”⁸⁰ The Sentencing Table’s Y-axis ranges from one to forty-three, and a defendant’s level is determined by facts about the current crime. Each crime is given a “base offense level” of a certain number of points, for example eight points for unlawful entry and thirteen points for escaping from prison.⁸¹ Additional points are then added (or subtracted) for “specific offense characteristics,” which are facts particular to the defendant’s crime. If someone escaping from prison uses or threatens to use force, for example, they get five additional points.⁸² The Sentencing Table’s X-axis provides the defendant’s “criminal history category,” which ranges from category I to category VI. Where a defendant lands on this dimension is determined by the number, severity, and recency of their past convictions.⁸³ The Guidelines thus take facts about the defendant’s current case and facts about their criminal history, plug those facts into two distinct formulas, and map the resulting numbers onto a two-dimensional grid to produce a sentence range.⁸⁴

When the Guidelines were first promulgated in 1987, a defendant convicted of unlawful reentry received a base offense level of six.⁸⁵ If the defendant had previously “unlawfully entered or remained in the United States,” they received two additional points as a specific offense characteristic.⁸⁶ The maximum offense level for unlawful reentry was thus eight. With eight offense level points, the sentence range varied from zero to six months (for those in criminal history category I) to eighteen to twenty-four months (for those in criminal history category VI).⁸⁷ According to the Sentencing Commission, this initial version of the reentry guideline was designed to reflect then-existing sentencing norms for immigration cases.⁸⁸ A year later, in 1988, the Commission wrote a new version of this guideline that simply had a base offense level of eight, with no specific offense characteristics.⁸⁹

In 1989, the reentry guideline was amended to double-count defendants’ criminal history. The Commission added a four-point enhancement applying to any defendant who “previously was deported after sustaining a conviction for a felony.”⁹⁰ This was the first time that the Commission created a specific offense enhancement for simply having a past conviction.⁹¹ This enhancement applied regardless of the prior conviction’s age—a felony from fifty years ago would still trigger the four-point enhancement.⁹² By contrast, the Guidelines’ standard criminal history score formula stops counting convictions after ten or fifteen years (depending on the prior sentence length).⁹³

The Commission enacted this enhancement without conducting any studies or hearings, and without providing any apparent explanation for the change.⁹⁴ The Commission’s commentary only notes that “this specific offense characteristic is in addition to, and not in lieu of, criminal history points added for the prior sentence.”⁹⁵ The enhancement closely tracks the language in Senator Chiles’s 1988 amendment to § 1326, which increased the maximum penalty to five years for any defendant “whose deportation was subsequent to a conviction for commission of a felony.”⁹⁶ The Guidelines’ commentary also mentions aggravated felonies, and suggests that “an upward departure may be warranted” in cases involving “a defendant previously deported after sustaining a conviction for an aggravated felony.”⁹⁷ The four-point enhancement in the 1989 Guidelines Manual is thus properly seen as a response to Senator Chiles’s amendment increasing the maximum sentences for defendants with prior felonies and aggravated felonies.⁹⁸

In 1991, the Commission added a much larger sixteen-point enhancement for any defendant who “previously was deported after a conviction for an aggravated felony.”⁹⁹ This was a very punitive change. For a reentry defendant in criminal history category I, it brought the sentencing range from zero to six months to fifty-one to sixty-three months.¹⁰⁰ For a defendant in category VI, it created a range of one hundred to one hundred twenty-five months. With this new enhancement, a single prior felony conviction for drug trafficking (or any other aggravated felony) would add multiple years to a defendant’s reentry sentence. This amendment was adopted a little over a year after Senator Graham’s proposal to mandate that the Commission increase penalties for reentry after an aggravated felony.¹⁰¹ While the Commission’s records do not reference Graham’s amendment, it was likely a motivating factor.¹⁰²

The Commission conducted hearings in 1991 on various proposed Guidelines amendments, including the enhancement for a prior aggravated felony.¹⁰³ At those hearings, a federal prosecutor named Joe Brown testified on behalf of the Department of Justice.¹⁰⁴ Brown recommended that the Commission adopt a twenty-point enhancement for defendants deported after committing an aggravated felony.¹⁰⁵ He connected this proposed enhancement to Senator Chiles’s amendment, noting that “[a]n increased penalty of this magnitude—two years to [fifteen] years—and limited to particularly defined offenses must, in our view, be reflected in the sentencing guidelines if the will of Congress is to be effectuated.”¹⁰⁶ Brown also emphasized the need to deter immigrant drug dealers, claiming that “[i]n the ordinary case, an alien drug dealer who illegally returns to the United States to practice his trade will continue this pattern of conduct until there is a substantial disincentive to do so.”¹⁰⁷ Brown was the only witness to discuss this enhancement at the hearings.¹⁰⁸ His analysis of it was perfunctory, taking up only two pages of the 171-page hearing transcript. By way of comparison, the Commission was simultaneously considering proposals for its corporate crime guidelines.¹⁰⁹ For those it held a public hearing with fourteen witnesses (including a former attorney general and two assistant attorneys general) that generated a 267-page transcript.¹¹⁰

The Commission conducted no policy analysis to justify the “aggravated felony” enhancement to the reentry guideline.¹¹¹ The Commission’s own staff declined to endorse the enhancement due to a lack of data.¹¹² No defense lawyers testified at the public hearing on the merits of the aggravated felony enhancement.¹¹³ Numerous federal prosecutors and law enforcement agents wrote to the Commission urging it to increase the penalties for reentry, with many of them citing Chiles’s law as a justification.¹¹⁴ The Sentencing Commission also interviewed practitioners in California and Texas, including INS agents, prosecutors, defense lawyers, and judges, who provided different perspectives on whether illegal reentry should be punished more harshly.¹¹⁵ Ultimately, aside from referencing Mr. Brown’s testimony, the Commission did not explain or justify the aggravated felony enhancement when it was adopted. The Commission enacted Mr. Brown’s proposal, but with sixteen points rather than twenty.¹¹⁶

These enhancements made the federal justice system much harsher for undocumented immigrants. They caused the average time in prison for unlawful reentry to more than double from 1991 to 2000, going from fifteen months to over thirty.¹¹⁷ The enhancements also helped the government bring many more reentry prosecutions. In 1991 only around 2,000 reentry cases were prosecuted in the federal courts, but by the year 2000 there were nearly 10,000 cases.¹¹⁸ The prior conviction enhancements facilitated this increase by giving federal prosecutors much more punishment leverage to compel plea bargains. And the federal prosecutors who lobbied the Commission for higher reentry guidelines in 1991 were keenly aware that higher guidelines meant more and faster guilty pleas.¹¹⁹ The increased reentry punishments empowered prosecutors to create a fast-paced plea system called “Fast Track.”¹²⁰ Under the Fast Track program, reentry defendants who qualified for an enhancement were offered a deal for a charge with a two-year maximum sentence.¹²¹ This deal required them to plead guilty at their first court appearance, waive the right to appeal, and agree to a specific sentence followed by immediate deportation.¹²² The stipulated sentence was usually two years, but prosecutors sometimes required sentences of two-and-a-half or four years.¹²³ If a defendant rejected this deal and had a prior felony or aggravated felony, then they faced a higher sentence under the mandatory Guidelines.¹²⁴ Fast Track thus used punishment leverage provided by the prior conviction enhancements to create a hyper-efficient plea process. The program was started in San Diego, but it spread to other border districts and allowed the massive growth of reentry prosecutions throughout the 1990s.¹²⁵

The Commission changed the reentry guideline in 2001 to create a more graduated system of prior conviction enhancements.¹²⁶ This change was motivated by concern over the proliferation of aggravated felonies. Congress repeatedly expanded the definition of “aggravated felony” over the course of the 1990s.¹²⁷ This caused a much larger number of crimes to trigger the sixteen-level enhancement. Initially, the enhancement had been narrowly focused on immigrants who committed murder, drug trafficking, and weapons trafficking.¹²⁸ But by 2001 the term “aggravated felony” applied to dozens of crimes, including fraud, forgery, burglary, immigrant smuggling, failing to appear for a sentence, crimes designated as “crimes of violence,” and many more.¹²⁹ The breadth of this list, combined with the severity of the sixteen-level enhancement, created some palpably unjust case outcomes. Defendants were regularly given much more severe sentences for reentry than they got for the original aggravated felony.¹³⁰ And a prior murder triggered the same sixteen-level enhancement as a prior forgery.

Federal judges and defense attorneys criticized the Guidelines for producing such harsh sentences.¹³¹ Judges also departed downward in about forty percent of cases, which the Commission characterized as judges “addressing this problem on an ad hoc basis.”¹³² The Commission rewrote the reentry guideline in 2001 in order to address these criticisms, and also to reduce the number of downward departures.¹³³ It created a tiered system of enhancements based on conviction type. Under the new guideline, different types of convictions would trigger enhancements of sixteen, twelve, eight, or four levels.¹³⁴ For example, the sixteen-level enhancement was limited to firearms offenses, drug trafficking, crimes of violence, immigrant smuggling offenses, and a few other enumerated crimes.¹³⁵ Less serious drug trafficking convictions (those with a sentence of thirteen months or less) triggered a twelve-level enhancement.¹³⁶ The remaining aggravated felonies resulted in only an eight-level enhancement.¹³⁷ And other felonies still caused a four-level enhancement.¹³⁸ The Commission also deleted an application note that permitted downward departures if an enhancement was based on a less-serious aggravated felony.¹³⁹

While the 2001 amendment made the reentry guideline somewhat less harsh, it still produced clear injustices. Relatively minor nonviolent crimes, like immigrant smuggling or low-level drug trafficking, triggered large twelve- or sixteen-point enhancements. And there were still no time limits, so crimes from several decades ago would count for the enhancements. The federal defense bar criticized these features of the guideline in letters and testimony before the Commission.¹⁴⁰ And in 2005, the Supreme Court declared in United States v. Booker that the Sentencing Guidelines were no longer mandatory.¹⁴¹ Federal judges could thus sentence defendants outside of the Guidelines range, through what became known as Booker variances. Judges took advantage of this new power to vary downward in illegal reentry cases in which the Guidelines were especially harsh.¹⁴² In one notable case, for example, the Ninth Circuit reversed a within-Guidelines fifty-two-month sentence because it was based on a prior conviction from twenty-five years ago.¹⁴³ From 2012 to 2016, about twenty-five percent of twelve-level and thirty-five percent of sixteen-level enhancement cases received below-Guideline sentences.¹⁴⁴ The Commission characterized this as an unusually high rate.¹⁴⁵

Federal judges and the Department of Justice also criticized the post-2001 reentry guideline for requiring use of the “categorical approach.”¹⁴⁶ Under that version of the guideline, the key question was whether a defendant’s prior conviction matched one of the enumerated crime categories triggering an enhancement. These categories included “crime of violence,” “firearms offense,” “drug trafficking offense,” “aggravated felony,” and more.¹⁴⁷ The categorical approach requires lawyers and judges to look at the statutory elements of a conviction, compare them to the generic federal version of the enumerated crime category, and determine whether the two match.¹⁴⁸ Many judges dislike the categorical approach because it raises difficult legal questions, creates additional litigation, and produces non-uniform results across different states.¹⁴⁹ And federal prosecutors repeatedly complained about the categorical approach at public hearings before the Commission, arguing that it produces arbitrary results and unnecessary litigation.¹⁵⁰

In 2016, the Commission rewrote the reentry guideline to address these criticisms.¹⁵¹ It made four major changes. First, the Commission keyed enhancements to the sentence imposed for the prior crime rather than the category of crime. This cut out the categorical approach. Under the new system, defendants receive the largest of a ten-, eight-, six-, or four-level enhancement depending on the length of the sentence imposed for a prior felony.¹⁵² In designing these enhancements, the Commission tried to approximate the enhancements previously imposed under the 2001 Guidelines for various kinds of prior convictions.¹⁵³ Second, the Commission added a new, second enhancement for a felony committed after the first deportation.¹⁵⁴ Prior versions of the guideline had only enhanced reentry sentences for felonies committed before the defendant was deported. This reflected Senator Chiles’s amendment, which only increased the maximum sentence for defendants whose removal was “subsequent to” a felony (or aggravated felony) conviction.¹⁵⁵ The Commission reasoned that it was arbitrary to enhance a sentence for pre-deportation crimes but not post-deportation crimes, so it added a second enhancement covering the latter.¹⁵⁶ Third, the Commission introduced time limits for the criminal history enhancements.¹⁵⁷ These time limits are the same as those for the normal criminal history score calculation—sentences of thirteen months or less count until ten years after imposition, and sentences of over thirteen months count until fifteen years after release from custody.¹⁵⁸ Fourth, the Commission added a new four-level enhancement for having been previously convicted of illegal reentry.¹⁵⁹

This new version of the reentry guideline mirrors the Sentencing Guidelines’ general criminal history calculation,¹⁶⁰ adding up to two additional (often much larger) prior conviction enhancements on top of it.¹⁶¹ This means reentry defendants now have their criminal history counted against them twice in two separate formulas, both based on prior sentence length. Other federal defendants are subjected to only one formula. The 2016 changes significantly lowered the amount of sentencing litigation in reentry cases, because they ended the use of the categorical approach.¹⁶² They also somewhat lowered the average reentry sentence.¹⁶³ But some defendants—namely those with a felony both before and after their first deportation—receive much higher sentences under the new guideline.¹⁶⁴ These changes did not seem to affect judges’ overall rate of downward variance, which has remained around eleven percent.¹⁶⁵ That is, notably, the lowest variance rate for all major categories of federal crime.¹⁶⁶

In sum, the reentry guideline has transformed repeatedly over three decades. The 1991 amendment reflected Senator Chiles’s (and Florida’s) panic over a purported wave of Haitian drug traffickers. It added sixteen levels for defendants deported after murder, drug trafficking, or weapons trafficking convictions. As Congress expanded the definition of “aggravated felony” over the 1990s to include a long list of crimes, the sixteen-level enhancement became obviously unjust in many cases. But rather than pare the guideline down, the Commission expanded it in 2001 to create graduated enhancements for many types of prior crime. Judicial, prosecutorial, and defense bar dissatisfaction with that version of the guideline caused the Commission to amend it again in 2016. The new version focuses on the length of prior sentences and adds an additional enhancement for post-deportation convictions. The reentry guideline has thus, in a process of preservation through transformation, morphed into a general criminal history enhancement that applies only to undocumented immigrants.¹⁶⁷ The Commission has yet to conduct any studies or publish any reports explaining why reentry defendants should be doubly punished for past crimes.¹⁶⁸

C. The First Step Act and Trump-Era Immigration Politics

Until 1984, federal prisoners were eligible for parole.¹⁶⁹ They could be released at the discretion of the United States Parole Board after serving at least one-third of their sentence. Under this system, the average federal prisoner served only forty-five percent of their sentence.¹⁷⁰ But Congress abolished federal parole in 1984, through the same law that created the Sentencing Commission.¹⁷¹ Congress replaced parole with a much less generous system of “good time” credits. Under this system, prisoners can now earn up to fifty-four days off for each year in prison.¹⁷² This means that, barring any other reductions, they must spend at least eighty-five percent of their sentences in prison.

The end of parole thus required federal prisoners to serve a much higher portion of their sentences. That did not change until 2018, when Congress enacted the First Step Act.¹⁷³ The First Step Act created a new system of “earned time” credits that further reduce a prisoner’s time in custody. Under this system, federal inmates are evaluated by a prison official to determine what kinds of in-custody programs they should participate in.¹⁷⁴ Such programs include, for example, prison work assignments, substance abuse treatment, psychological treatment, job training, and formal schooling.¹⁷⁵ As long as an eligible prisoner does not refuse to participate in these programs, they will receive ten days off of their prison sentence for every thirty days in custody.¹⁷⁶ Prisoners designated as “low” or “minimum” recidivism risks (fifty-five percent of federal prisoners) receive an additional five days off for every thirty days in custody.¹⁷⁷ “Low” and “minimum” risk prisoners also have their first year of earned time credit count toward early release from custody.¹⁷⁸ All other credit counts toward release into either home confinement or a halfway house.¹⁷⁹ Since halfway houses are designed for shorter stays to transition people out of prison, most of that time will go toward home confinement.¹⁸⁰ And prisoners can also receive the standard fifty-four days per year of good time credit on top of their earned time credit.¹⁸¹ Someone who earns all these credits will spend only about fifty-six percent of their sentence in a federal prison.¹⁸² The First Step Act has thus, at least for some, brought the federal system back to the old parole model where only about half of a sentence was served in prison.

But not all federal prisoners benefit from the First Step Act’s earned time credit system. Unlawful reentry defendants with a prior felony conviction are explicitly excluded.¹⁸³ So are all immigrants with a prior order of deportation.¹⁸⁴ And if a deportable immigrant who has not yet been ordered deported seeks to collect earned time credit, the law requires that they be put into deportation proceedings “as early as practicable” during their incarceration.¹⁸⁵ Thus, previously deported defendants (including all unlawful reentry defendants) cannot collect earned time credit, and deportable immigrants who try to collect it will swiftly be ordered deported.¹⁸⁶ The First Step Act also contains a list of forty-seven other criminal charges that trigger exclusion from earned time credits.¹⁸⁷ These are mostly violent crimes, and all of them are much more serious crimes than unlawful reentry. They include, for example, convictions related to explosives, drive-by shootings, arson, child pornography production, terrorism, torture, weapons of mass destruction, sex trafficking, and being a drug kingpin.¹⁸⁸ Defendants convicted of these crimes, as well as undocumented immigrants, only have access to good time credits. They therefore must serve at least eighty-five percent of their sentences.¹⁸⁹

The original version of the First Step Act allowed undocumented immigrants to collect earned time credit.¹⁹⁰ The bill passed by the House of Representatives in May 2018 did contain a list of conviction-based exclusions, including one for unlawful reentry with a prior felony, but not the broader immigration status exclusion.¹⁹¹ That was added when the bill went to the Senate. Contemporaneous reporting indicates that a bipartisan group of senators agreed to an amended version of the First Step Act in November 2018.¹⁹² This new version included the provision excluding all deportable immigrants from earned time credits.¹⁹³ The senators made that and other changes in negotiations with the White House, especially President Trump’s son-in-law Jared Kushner who played a significant role pushing for the law.¹⁹⁴ The senators’ goal with these changes was to persuade Senate Republicans to support the First Step Act, and ultimately to convince President Trump to sign it into law.¹⁹⁵ Including deportable immigrants was thus a nonstarter. Shon Hopwood, who worked directly with the Trump administration on the law, observed that “providing federal tax money to pay for rehabilitation programs and early release for those who will be deported had no chance of passing in the current Congress.”¹⁹⁶

These negotiations coincided with the first Trump Administration’s most intense period of hostility to Latin American immigration. In April 2018, shortly before the House passed its version of the First Step Act, President Trump made a series of posts on Twitter warning about immigrant caravans from Latin America. He wrote in one post, for example, that “Honduras, Mexico and many other countries that the U.S. is very generous to, sends many of their people to our country through our WEAK IMMIGRATION POLICIES. Caravans are heading here. Must pass tough laws and build the WALL.”¹⁹⁷ Trump also gave a speech claiming that immigrants in these caravans were committing widespread rapes.¹⁹⁸ Shortly after Trump’s posts, Attorney General Jeff Sessions announced a “zero tolerance” policy toward undocumented immigration.¹⁹⁹ This new policy caused an enormous increase in prosecutions for unlawful entry and unlawful reentry.²⁰⁰ That increase continued through 2018 and 2019.²⁰¹ The Trump Administration also, as part of its 2018 “zero tolerance” policy, systematically separated children from their parents at the border so that the parents could be prosecuted.²⁰² This family separation policy sparked a nationwide protest movement against the administration’s immigration policies.²⁰³ And in November 2018, while the First Step Act compromise was being negotiated, President Trump issued an executive order categorically denying asylum to immigrants who entered unlawfully.²⁰⁴ In signing the order Trump declared, “The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders.”²⁰⁵ This larger context of anti-immigrant policy and rhetoric explains why the Senate, in negotiations with the White House, excluded deportable immigrants from the new earned time credit system.

Immigrants’ rights groups and some Democratic House members opposed the First Step Act’s exclusion of undocumented immigrants. A coalition of activist groups including the NAACP, the ACLU, and the National Immigrant Justice Center raised concerns about the law in letters and press releases.²⁰⁶ This coalition cited, among other problems, that the law “excludes from its reforms most undocumented immigrants,” that it thereby “further criminalizes migration,” and that these exclusions “could also have a disparate impact on racial minorities.”²⁰⁷ A coalition of immigration-related nonprofits expressed concern that the law “sets the precedent that immigrants are outside the scope of people who should benefit from criminal justice reform.”²⁰⁸ And in the House debates concerning the First Step Act, several Democratic Representatives highlighted its discriminatory impact on immigrants. Representative Pramila Jayapal noted that she was “very concerned about language in the bill that excludes immigrants from being eligible for time credits.”²⁰⁹ And Representative Jerrold Nadler observed that “the new incentive system for pre-release custody credits could exacerbate racial biases,” because it “excludes large categories of inmates based on convictions for various offenses and on immigration status.”²¹⁰

The First Step Act enacted a generous new earned time credit system that, for those who qualify, can reduce a sentence by up to one-third. But the law also categorically excluded undocumented immigrants, keeping them trapped in a much more punitive system allowing only good time credits. That exclusion was crafted during the first Trump Administration’s most intense period of hostility toward Latin American immigration. And activists and legislators at the time pointed out its discriminatory consequences.

II. The Discrimination Problem

These policies create two separate and unequal federal sentencing systems: one system for U.S. citizens and another system for deported immigrants. In the citizens’ system, criminal history is counted once; in the immigrants’ system, it is counted twice. In the citizens’ system you can serve up to forty-five percent of your sentence out of prison, in the immigrants’ system you can serve only fifteen percent. This separate system for immigrants is not small. Since 2010, about one-third of all federal cases have been unlawful reentry prosecutions.²¹¹ And over ninety-nine percent of the defendants in those cases have been Latin American.²¹² Federal sentencing law thus creates a caste structure in which undocumented immigrants from Latin America are relegated to a punishment underclass. This Part makes the straightforward observation that this is discriminatory. It does so by comparing these two sentencing systems in detail. It shows that federal sentencing law discriminates facially by immigration status, and in effect by race and ethnicity.²¹³ The more complicated issue of constitutionality is explored in Part IV.

A. Double Counting Criminal History

The unlawful reentry guideline stands alone in basing a defendant’s offense level calculation entirely on their past crimes.²¹⁴ Other federal sentencing guidelines focus instead on the facts of the current crime. For drug trafficking, what matters is the amount and type of drugs.²¹⁵ For fraud, it is the amount of money lost or stolen.²¹⁶ For child pornography distribution, it is the number of images and the ages of the victims, among other factors.²¹⁷ But for unlawful reentry, facts about the current crime are not factored in.²¹⁸ The only thing that matters is the defendant’s criminal history. The reentry guideline enhances a defendant’s sentence once along the “criminal history category” axis, and a second time along the “specific offense level” axis. Past crimes thus count against a reentry defendant twice in two separate formulas. For nearly all other federal defendants, they count only once.²¹⁹

There are a few other places in the Guidelines where a past conviction triggers an increase in the offense level. A couple of guidelines have modest enhancements for defendants who committed the same kind of crime previously.²²⁰ For example, the guidelines for immigrant smuggling, passport fraud, and immigration fraud all contain a two-level enhancement for having been previously convicted of a “felony immigration and nationalization offense.”²²¹ The guideline for adulterating or misbranding food products contains a four-level enhancement for a prior conviction for the same offense.²²² And the guideline for domestic violence contains a two-level enhancement for a pattern of “stalking, threatening, harassing, assaulting the same victim,” which includes prior convictions.²²³ In addition, the guideline for being a felon in possession of a firearm ties the offense level to the nature and number of prior felony convictions.²²⁴ And the drug trafficking guideline increases the offense level if both (1) the drugs caused death or serious bodily injury and (2) the defendant has a prior felony drug offense.²²⁵

These other criminal history enhancements are much narrower than the reentry enhancements.²²⁶ They only apply to specific kinds of prior crimes, while the reentry enhancement applies to any prior felony. These other enhancements also have a much closer nexus to the defendant’s current crime. Most of them involve having committed the same kind of crime previously. For the felon-in-possession enhancements, the prior felony is itself an element of the new crime.²²⁷ And the drug trafficking criminal history enhancements only apply if the drugs caused death or serious bodily injury.²²⁸ In these circumstances, the prior crimes are directly relevant to the defendant’s conduct in the new case. By contrast, the enhancements in the unlawful reentry guideline apply to all criminal history in general, not just related crimes.

The reentry guideline’s criminal history enhancements are also much larger than other comparable enhancements. A single prior felony will get a reentry defendant between four and ten additional offense level points, depending on the sentence length.²²⁹ And this can happen up to twice, once for a felony before the first deportation and once for a felony after it.²³⁰ Nowhere else in the Guidelines can a defendant get such a high increase for just a single prior conviction. It is thus actually something of an understatement to say that reentry defendants have their convictions counted twice, because the extra enhancement is potentially much more severe than the Guidelines’ normal criminal history calculation. A prior conviction with a five-year sentence, for example, gives a reentry defendant both a one-level increase in their criminal history category and a ten-point increase in their offense level.²³¹ This takes a reentry defendant from a zero to six month range to a thirty to thirty-seven month range.²³² Other federal defendants starting from the same baseline would only see the one-level criminal history category increase, going from zero to six months to four to ten months.²³³ Reentry defendants can thus receive multiple additional years in prison due to past crimes that would net other defendants only a few extra months.

These enhancements apply in a significant percentage of reentry cases. According to the U.S. Sentencing Commission’s 2023 data, 43.6% of unlawful reentry defendants received a prior conviction enhancement.²³⁴ The average sentence for unlawful reentry was twelve months in 2023, and since 2012 it has fluctuated between nineteen months and eight months.²³⁵ But reentry defendants with prior convictions receive much longer sentences due to criminal history enhancements. According to the Commission, about 15% of reentry defendants since 2021 received sentences of at least two years, and 1% received sentences of at least five years.²³⁶ At the top of this distribution, hundreds of reentry defendants have gotten more than five years, and some even more than a decade in prison.²³⁷

The reentry guideline is also the only federal sentencing guideline that applies exclusively to noncitizens. It is used for four crimes: 8 U.S.C. § 1326 (unlawful reentry), 8 U.S.C. § 1325(a) (felony unlawful entry), 8 U.S.C. § 1253 (failure to depart after deportation order), and 8 U.S.C. § 1185(a)(1) (violating prescribed entry and departure regulations).²³⁸ By their explicit terms, these four provisions only apply to noncitizens.²³⁹ There are several other federal entry crimes that do apply to U.S. citizens, including passport fraud, entering the country without inspection, and entering the country through forgery or false statements.²⁴⁰ But those crimes are not covered by the reentry guideline, and do not receive its extra criminal history enhancement.²⁴¹ So, for example, a U.S. citizen fugitive who tries to reenter the country with a fake passport will not receive a double enhancement. And arguably comparable crimes that punish illicit presence, such as escaping from federal prison, failing to appear in court, failing to register as a sex offender, and trespassing on federal property, also receive no double enhancement.²⁴² Only counting criminal history twice in the reentry guideline thus constitutes explicit discrimination by immigration status. And because the reentry guideline is by far the most racially skewed, with over ninety-nine percent of defendants being of Latin American ancestry, doing so also effectively discriminates by race.²⁴³

The main rationale used to justify these criminal history enhancements is that they deter immigrants with prior convictions from reentering the United States. That was the rationale Senator Graham and Sentencing Commission witness Joe Brown invoked in 1991 when arguing for extra recidivist enhancements.²⁴⁴ It is also the primary rationale that federal judges have cited in upholding the enhancements.²⁴⁵ Though, notably, the Sentencing Commission itself has never announced an official justification for the enhancements.²⁴⁶ The logic of a deterrence rationale is simple—by imposing higher sentences, the reentry enhancements give immigrants with past convictions a stronger disincentive to return. But the Commission has not conducted any study or other policy analysis to explain why the normal criminal history enhancement inadequately deters.²⁴⁷ Rather, the story of the reentry guideline is one of politics and path dependence. As discussed above, the initial criminal history enhancement was a response to Senator Chiles’s 1988 statutory sentence increase.²⁴⁸ And that increase was, in turn, motivated by Floridians’ fear of Haitian drug dealers supposedly reentering the country to commit crimes.²⁴⁹ The Commission set the original enhancement at sixteen points for no recorded reason, and then revised it in 2001 and 2016 to accommodate judges’ and prosecutors’ complaints.²⁵⁰ But the size and nature of the reentry enhancements have never been connected to any empirical data about deterrence, or about reentry defendants committing additional crimes. Indeed, it is unlikely that first-time reentry defendants have any idea their Guidelines calculation will be enhanced so severely by their past criminal record.²⁵¹

These double enhancements also impose a great deal of suffering on defendants and their families. Many reentry defendants have deep ties to the United States. According to Commission data from 2013, 53.1% of reentry defendants first entered the United States when they were minors,²⁵²and 49.5% of reentry defendants have children living in the United States.²⁵³ And 74.5% had worked in the United States for more than a year before their arrest.²⁵⁴ People with criminal history in the United States are also more likely to have lived in the United States for an extended period.²⁵⁵ Thus, by focusing on prior convictions, the reentry guidelines direct more punishment at people with strong personal and family ties to this country. The prototypical target of the reentry enhancements is not a foreign drug dealer returning to commit more crimes. It is someone who grew up in the United States, has a family here, and wants to return to them. Many such immigrants spend large portions of their lives in federal prison because they repeatedly try to return to their spouses, their children, and the country they grew up in.²⁵⁶

B. Doing More and Harder Time

The First Step Act also discriminates against undocumented immigrants. It creates two different classes of prisoner: a majority who can collect earned time credits, and a minority who cannot.²⁵⁷ U.S. citizens are in the former category, excepting those who are in prison for a disqualifying crime like torture, child pornography production, or terrorism.²⁵⁸ Deportable immigrants, including all reentry defendants, are in the latter category.²⁵⁹ Prisoners who qualify for earned time credits can get up to fifteen days off their sentence for every thirty days served.²⁶⁰ That means they can serve up to one-third of their sentence in a halfway house, home confinement, or released from custody altogether. Prisoners who do not qualify for earned time credits only get the standard fifty-four days of good time credit per year. And the exclusion of deportable immigrants is also racially discriminatory, since nearly all deportable immigrants in federal prison are Latin American.²⁶¹

To defend this discrimination, one might argue that it makes sense to deny limited rehabilitation resources to prisoners who will be deported. Perhaps the federal government has an interest in limiting programs like drug treatment and job training to U.S. citizens. But this argument ignores a key fact about the earned time credit system: a prisoner can collect custody credits even while they are not participating in anti-recidivism programs. As long as a prisoner does not refuse to participate in programs assigned to them, they remain in earning status.²⁶² And this happens even if programs are unavailable, or if the Bureau of Prisons decides the prisoner does not need programs. For example, prisoners assigned to programs that lack openings still earn time credits while waiting for a spot.²⁶³ Prisoners also earn time credits for working jobs within the prison, like cleaning laundry or working in the kitchen.²⁶⁴ Such work assignments are standard in federal prison, and all able-bodied inmates (including deportable immigrants) are required to perform them.²⁶⁵ Many U.S. citizen prisoners receive earned time credit under the First Step Act for performing these prison jobs.²⁶⁶ But deportable immigrants do not receive that credit. The federal government has thus created a system where two prisoners—one a U.S. citizen and the other an

immigrant—will work alongside each other at the same job in the same prison kitchen, with the citizen getting a one-third sentence reduction for their labor and the immigrant getting nothing.

The federal prison system discriminates against deportable immigrants in numerous other ways as well. In addition to First Step Act credits, a federal prisoner can spend ten percent of their sentence (up to six months) in home confinement.²⁶⁷ Deportable immigrants, however, cannot get home confinement.²⁶⁸ They are excluded from nearly all in-prison treatment and rehabilitation programs.²⁶⁹ This includes the Residential Drug Abuse Program, a 500-hour treatment program that gives a one-year sentence reduction upon completion.²⁷⁰ Deportable immigrants cannot receive a “minimum security” designation by the Bureau of Prisons, meaning that they cannot be housed in the least restrictive prison facilities.²⁷¹ Unlike other prisoners, they cannot serve part of their sentences in a halfway house.²⁷² While the Bureau of Prisons is required to try to house inmates within 500 miles of their families, it does not do so for deportable immigrants.²⁷³ And the federal prison system houses most deportable immigrants in segregated facilities that have fewer amenities and less security than normal prisons, feature little in-custody programming, and are run by private corporations.²⁷⁴ In conjunction with the earned time credit exclusion, these policies create a separate and unequal prison system for undocumented prisoners.

III. The Arbitrariness Problem

The reentry guideline is also quite illogical in practice. It distributes prison time through a convoluted formula that is tangential to the severity of a defendant’s criminal history. From the defendant’s perspective, it feels like a twisted lottery—prison time is distributed at random based on what numbers turn up in what order. This Part explores several features of the guideline that cause it to treat defendants so arbitrarily. The basic problem is that up to two large (commonly multi-year) sentence enhancements are imposed based on superficial aspects of a defendant’s record. First, the guideline places a puzzling emphasis on the order of convictions vis-à-vis the first deportation. If all convictions occurred either before or after the first deportation, then there is only one enhancement. But if two convictions straddle the first deportation, there are two enhancements. Thus, multiple years in prison often turn on the order of events. Second, the guideline only looks at nominal sentences, not actual time served. The enhancements are thus inflated by state sentencing policies, like indeterminate parole and automatic good time credit, that make the nominal sentence much longer than the real one. Third, violations of criminal supervision (e.g., probation) artificially inflate these past sentences and cause very old convictions to still trigger enhancements. This is a common problem for reentry cases because deportation itself often results in probation violations. Fourth, the difficulty of obtaining conviction and deportation records, combined with the fast pace of guilty pleas in these cases, leaves many defendants in the dark. They often plead guilty thinking their prison term will be brief, only to find out that it will be much longer. This Part explains these sources of arbitrariness, showing how they exacerbate the guideline’s anti-immigrant discrimination. It also illustrates them with a real-world case example.

A. The Criminal History Lottery

Timing the Deportation

Before 2016, the reentry guideline only gave an enhancement for past convictions that were followed by a deportation.²⁷⁵ This mirrored Chiles’s amendment to § 1326, which increased the maximum punishment if a defendant was deported “subsequent to” a felony or aggravated felony.²⁷⁶ Convictions occurring after a defendant’s most recent deportation did not trigger an enhancement. The criminal history enhancement was thus a collateral consequence of being deported after a conviction, and not of a conviction alone. This reflected the Commission’s apparent purpose of deterring immigrants deported after felony convictions from returning to the United States.²⁷⁷

When the Sentencing Commission rewrote the reentry guideline in 2016, it expressed concern that just focusing on pre-deportation convictions was arbitrary.²⁷⁸ Take two defendants who committed the exact same prior crime, one before being deported and the other after being deported. Following the Commission’s logic, it made little sense to give the former defendant multiple more years in prison than the latter.²⁷⁹ But rather than simply removing the requirement that a conviction occur before a deportation, the Commission added a second enhancement.²⁸⁰ Under the new version of the guideline, a defendant can get up to two enhancements of up to ten specific offense points. The first enhancement is for a conviction occurring before the defendant’s first deportation, and the second is for a conviction occurring after their first deportation.²⁸¹ This solved the arbitrariness problem, by the Commission’s reasoning, because it treated defendants with pre- and post-deportation felonies equally.

However, the 2016 amendment added a whole new dimension of arbitrariness. Under this new system, the order of convictions vis-à-vis the first deportation is enormously important. And that fact bears little relationship to the actual severity of someone’s prior record. Consider the following four defendants, who suffer deportations and felony convictions in the following order:

Defendant A: Felony, Deportation, Felony: two enhancements (one under Guidelines section 2L1.2(b)(2), another under (b)(3))
Defendant B: Felony, Felony, Felony, Felony, Deportation: one enhancement (under (b)(2))
Defendant C: Deportation, Felony, Felony, Felony, Felony: one enhancement (under (b)(3))
Defendant D: Deportation, Felony, Deportation, Felony, Deportation, Felony, Deportation, Felony: one enhancement (under (b)(3))

Defendant A has the least serious criminal record, with just two felonies. But only Defendant A will receive two enhancements under the reentry guideline. Every other defendant gets just one enhancement, despite having more convictions than A and as many or more deportations than A. Why is Defendant A treated much more harshly? There is no logical explanation for distributing prison time this way. If the Commission’s goal is to punish people more severely for returning to the United States and committing additional crimes, it should not focus just on the first deportation. For example, Defendant D above receives no second enhancement despite being convicted of crimes both before and after their deportations. According to a study by the Sentencing Commission, in 2013 the median number of prior deportations for reentry defendants was 2, and the mean was 3.2.²⁸² According to the same study, the median number of past criminal convictions was 3 and the mean was 4.4.²⁸³ Conditioning sentence severity on the precise sequence of these events makes little sense.²⁸⁴ And from the defendant’s perspective, it seems quite random. Due to the size of these enhancements (between four and ten offense points), defendants who receive two of them are commonly looking at five to ten years in prison, sometimes even more.²⁸⁵ For example, assuming that all the felonies in the above illustration carried two-year sentences, Defendant A would have a recommended sentence range of sixty-three to seventy-eight months.²⁸⁶ Without the second enhancement, Defendant A’s range would be only twenty-seven to thirty-three months.²⁸⁷ And Defendants B, C, and D would face a range of forty-one to fifty-one months, despite having much more extensive felony records than A.²⁸⁸

Prosecutors can also exercise unilateral discretion over whether a post-deportation enhancement applies. In situations where a previously deported person is charged with a state crime, the federal prosecutor has a choice of when to bring them to federal court on the reentry case.²⁸⁹ If the prosecutor waits for the state case to end, and it results in a conviction and sentence, the defendant will then receive a sentencing enhancement in their federal reentry case.²⁹⁰ But if the prosecutor instead brings the reentry case first, there is no extra enhancement. The reentry guideline thus empowers prosecutors to manipulate a defendant’s sentence. And given the potential size of the enhancement, this sometimes means doubling or tripling a defendant’s prison term.²⁹¹ Different prosecutors’ offices have different policies on this question, with some prosecuting the reentry case right away and others waiting.²⁹² That adds yet another dimension of randomness to reentry sentencing.²⁹³

Misinterpreting State Sentences

Before 2016, the reentry guidelines’ prior conviction enhancements were keyed to substantive crime categories. These included “crime of violence,” “drug trafficking offense,” “aggravated felony,” and more.²⁹⁴ This caused much litigation using the categorical approach, with lawyers arguing over which state crimes did or did not qualify for which enhancements.²⁹⁵ Responding to judges’ and prosecutors’ complaints about this litigation, the Commission changed the guideline in 2016 to focus instead on past sentences. Under this new version of the guideline, the length of a sentence is treated as a proxy for the seriousness of the underlying crime.²⁹⁶ If the “sentence imposed” for a prior crime was five years or more, it is worth ten points; if it was at least two years and less than five, it is worth eight points; if it was more than thirteen months and less than two years, it is worth six points; and all other felonies are worth four points.²⁹⁷ This new system has reduced litigation over reentry sentences.²⁹⁸ But it interprets state sentences in an incredibly unsophisticated way. In doing so, it creates arbitrary differences in punishment, and artificially inflates many enhancements, based on variations in state sentencing procedures.

The current guideline looks at the nominal sentence imposed by a court, not at the amount of time a defendant served in custody.²⁹⁹ But the relationship between those two numbers varies widely between (and within) state systems. Some states require a defendant to serve all or nearly all of their sentence. Others set the sticker price of a sentence much higher than the time actually served. Consider some examples. In California, by default defendants serve only half of the announced prison sentence (and, under the recent “realignment” system, some defendants serve much less than that).³⁰⁰ Arizona and Florida, by contrast, are truth-in-sentencing states, and require all defendants to serve at least eighty-five percent of the announced sentence.³⁰¹ In Minnesota, felony defendants are released on supervision after serving two-thirds of their sentences.³⁰² And discretionary parole systems (which most states have) introduce further complications.³⁰³ In Utah, third-degree felonies are sentenced to an indeterminate term of zero to five years, and second-degree felonies get one to fifteen years.³⁰⁴ In Texas, defendants are eligible for parole after serving twenty-five percent of their sentence.³⁰⁵ But for all of these different state sentencing systems, the reentry guideline treats the maximum possible sentence as the “real” sentence. It does not matter if everyone in the courtroom—the judge, the lawyers, the defendant—understood that only a fraction of that time would be spent in prison. It does not matter if the sentence was an indeterminate term of zero to five years, and the defendant was paroled after just two months. The reentry guideline is deliberately ignorant of these facts. The sticker price is the sentence.

The 2016 amendment thus replaced one form of arbitrariness with another. Under the categorical approach regime, seemingly irrelevant differences in the elements of state crimes determined whether a prior conviction counted for an enhancement.³⁰⁶ Under the nominal sentence length regime, seemingly irrelevant differences in state sentencing procedures determine an enhancement’s size.³⁰⁷ The new system eases the burden of litigation on judges and prosecutors, but it maintains the burden of arbitrary treatment on defendants. One problem is that people with substantively similar prior sentences will get very different enhancements due to differences in state procedures. Another, related problem is that the nominal sentence often significantly overstates the seriousness of the underlying crime.³⁰⁸ For example, in Utah’s discretionary parole system you can serve just a few days in custody on a sentence that the Guidelines will count as five years long.³⁰⁹ But “five years” is a terrible proxy for the severity of the actual crime in such a case. And it seems seriously unjust to get a ten-point enhancement for conduct that only merited a short stay in jail. A system based on time actually served would be far more rational. Such an approach has precedent in the federal system: federal drug crimes use a time-served model for determining recidivist sentence enhancements.³¹⁰ But, for the sake of administrative convenience, the Sentencing Commission rejected that approach when it amended the reentry guidelines.³¹¹

Supervision Complications

Criminal supervision introduces further problems. Supervision sentences are very common in the United States: about 3.7 million people are currently on some form of probation or parole.³¹² When someone is sentenced to supervision, they can be put in custody for violating certain rules. This can happen if they do things like refuse to meet with a probation officer, fail a drug test, or commit a new crime.³¹³ Under the Guidelines, any sentence for a violation of criminal supervision gets added to the sentence for the original crime.³¹⁴ So if a person is initially sentenced to zero days in prison plus probation, and then gets a 219-day sentence for violating probation conditions, the Guidelines treat that as a 219-day sentence for the original crime.³¹⁵ In the context of the reentry guideline, this means supervision violations enlarge the prior conviction enhancements by adding to the measured lengths of past sentences.³¹⁶

Reentry defendants are especially susceptible to supervision violations, because deportation itself often causes them.³¹⁷ One standard supervision condition is that the supervisee must report in person to a probation or parole office.³¹⁸ But when someone is deported after release from jail, they cannot go meet their probation officer. This can trigger a violation report and an arrest warrant.³¹⁹ In addition, many state courts impose immigration-related conditions on undocumented supervisees, such as prohibitions on returning to the United States without legal permission or requirements to report to a probation officer upon return.³²⁰ When defendants are punished for violating immigration-based conditions, it also inflates their sentence enhancement in any later reentry case. This creates yet more double punishment—the state gives you a probation violation for returning to the United States, then the federal system treats that violation as evidence of separate bad conduct meriting an increased sentence for returning to the United States.³²¹

The Guidelines’ treatment of supervision violations also reproduces the problems discussed in the above Sections. Consider a person sentenced to probation and then deported for the first time. If that person returns to the United States and is prosecuted for a new crime, they will also get a probation violation.³²² If the sentence for that probation violation runs concurrent to the sentence on the new crime, then a single term in prison will count for two separate enhancements.³²³ Further, a supervision violation can also result in a nominal sentence that is higher than the real sentence. For example, in California the half-time rule applies to probation violations, and in Utah a violation sentence can include an indeterminate prison term with parole.³²⁴ In such cases the violation is counted as the maximum possible custody time rather than the actual time spent in prison.³²⁵ Consider the case of United States v. Gomez-Colin.³²⁶ The defendant was initially sentenced to probation on a Georgia felony conviction and then deported.³²⁷ He later returned to the United States and received a state probation violation for reentering the country unlawfully.³²⁸ This resulted in a five-year sentence that was set aside by the state court (meaning he did not serve it).³²⁹ But the federal court treated it as a full five-year sentence under the reentry guideline, giving him a ten-point enhancement.³³⁰ The guideline’s treatment of violation sentences thus compounds with its treatment of indeterminate sentences to inflate the reentry enhancements even further.

Lastly, supervision violations also cause very old cases to trigger sentencing enhancements. For any sentence of over thirteen months, the reentry guideline only imposes an enhancement if the defendant was in custody within fifteen years of their arrest for reentry.³³¹ So if someone served a two-year sentence but was released from custody more than fifteen years ago, that prior sentence does not count. However, supervision violations extend this timeline forward.³³² Thus, if someone served a two-year prison sentence and was released on parole thirty years ago, but they served time on a later parole violation within the last fifteen years, the entire conviction still counts under the reentry guideline.³³³ This is a common problem for reentry defendants, because deportation itself triggers supervision warrants.³³⁴ If a supervisee fails to report because they were deported, the court can issue a probation warrant that indefinitely pauses the clock on the term of probation.³³⁵ Then, if the supervisee is arrested and jailed many years later on the warrant, the supervision violation causes the underlying crime to count for a Guidelines enhancement. This is true regardless of how long ago the underlying conviction occurred.³³⁶ Reentry defendants are thus punished anew for decades-old crimes.

Slow Court Records, Fast Guilty Pleas

Given all these complications, it is often quite difficult to figure out a reentry defendant’s Guidelines range. First you need to get their conviction records, their supervision revocation records, and their deportation records. This commonly means requesting documents from multiple state and federal government bodies. Ordering these records is often a complicated matter.³³⁷ Many county courthouses only use paper documents, and many require records requests to be made in person or by mail.³³⁸ And the federal government takes months to provide immigrants with their deportation records.³³⁹ Indeed, a large portion of federal immigration files are kept in a defunct limestone mine in Missouri, and requested documents must be physically located there before they are provided.³⁴⁰ Once you have all of these documents, you must piece together the defendant’s deportation and criminal history, and put it in chronological order to figure out the recommended sentence. For the defendant, this exercise is a high-stakes logic game. It produces a longer or shorter sentence based on the specific features (and sequence) of their prior record.

Unfortunately, this logic game has a short time limit. Unlawful reentry prosecutions proceed very quickly. Over ninety-seven percent of them end in guilty pleas.³⁴¹ About one-quarter of those pleas are obtained through a prosecutor-controlled program called “Fast Track.”³⁴² The Fast Track program provides the defendant with a somewhat lower Guidelines range (usually a two- or four-point reduction) in exchange for (1) not filing any motions or appeals, and (2) pleading guilty within thirty days of their arrest.³⁴³ Reentry cases in the Fast Track program thus resolve very quickly.³⁴⁴ Even outside the Fast Track program, reentry cases tend to end in much faster guilty pleas than other federal crimes.³⁴⁵ Most reentry prosecutions are brought in high-volume border districts, where they comprise the majority of cases.³⁴⁶ Judges, defense lawyers, and prosecutors in those districts expect reentry cases to be routine guilty pleas and process them accordingly.³⁴⁷

This means defendants are pressured to plead guilty without having access to their full deportation and conviction records. The prosecutor usually provides a RAP sheet with basic prior conviction information from the FBI’s criminal records database, but such RAP sheets are incomplete. They often lack information about the dates of past convictions, the sentences, and any probation or parole violations.³⁴⁸ That information must be obtained from state agencies, which is a burdensome process. And while complete deportation records should theoretically be provided in discovery, reentry defendants who plead guilty have no right to pre-plea disclosure of those records.³⁴⁹ The defendant’s full deportation and criminal history is thus often unknown until a court-appointed probation officer obtains the records while writing a presentence report. Presentence reports are prepared after the conviction and take several months to complete.³⁵⁰ When provided to the defendant before sentencing, they often contain unpleasant surprises. If the probation officer finds a deportation order or supervision violation that the defense lawyer missed, multiple years can be added to the expected sentence.³⁵¹ Defendants thus often plead guilty thinking their prison term will be relatively short, only to find out right before the sentencing hearing that it will be much longer. The rapidity of guilty pleas in these cases, combined with the difficulty of obtaining records quickly, keeps defendants in the dark.

B. The Case of Mr. R

The reentry guideline’s criminal history enhancements thus create numerous problems. They produce arbitrary and illogical punishments, inaccurately measure prior sentence lengths, and make it difficult to ascertain a defendant’s sentencing range before the guilty plea. It is helpful to illustrate these problems with a concrete case. To that end, here is the story of Mr. R, a reentry defendant who was sentenced to ninety-six months in prison in 2014.³⁵² The sentencing in his case illustrates several of the reentry guideline’s absurdities.

Mr. R was born in a Latin American country. He moved to the United States with his father at the age of eight. In his late teens and early twenties, he collected a series of criminal convictions in California. In June 1995, when Mr. R was eighteen years old, he was convicted of stealing a car.³⁵³ He was sentenced to 365 days in jail and three years of probation. Shortly after his release, in September 1995, he was convicted of possessing cocaine with intent to sell.³⁵⁴ He was sentenced to three years in prison for the drug conviction and given a probation violation on the auto theft case with a concurrent three-year sentence. After his release from custody, he was deported from the United States for the first time in November 1997. He also received two separate three-year terms of parole in California, one for each of the 1995 convictions.³⁵⁵

Mr. R then reentered the United States and returned to California. He was convicted of robbery in 1998.³⁵⁶ For that conviction he received a state sentence of fifteen years in prison. He also received two concurrent parole violations in each of the 1995 cases. He remained in prison in California on this sentence until 2012, when he was released from custody and deported again. He then reentered the United States and was prosecuted federally for unlawful reentry. Under the pre-2016 Guidelines, he received a sentence of fifty-seven months in prison because of his prior robbery conviction.³⁵⁷

Fast forward to 2018. Mr. R is arrested again for entering the United States and charged with unlawful reentry. He is now in his early forties, and his most recent state conviction is from 1998. Mr. R’s court-appointed defense lawyer knows that the 1998 robbery conviction will trigger a ten-point enhancement, because Mr. R was released from custody within the last fifteen years.³⁵⁸ But the lawyer does not think either of the 1995 convictions will count, because they are too old. This means Mr. R will receive just one prior conviction enhancement (for a post-first-deportation felony).³⁵⁹ The lawyer tells Mr. R that he is looking at a Guidelines range of forty-six to fifty-seven months, and Mr. R pleads guilty less than two months after his arrest.³⁶⁰

Between the guilty plea and sentencing, a court-appointed probation officer orders Mr. R’s criminal case records from California to prepare a presentence report. These records reveal that the two 1995 convictions produced parole violations that ran concurrent with the 1998 robbery sentence. The probation officer concludes that those 1995 convictions should therefore be counted in Mr. R’s 2018 Guidelines calculation, because he was in custody within the relevant timeframe. This has two consequences for the sentence. First, it gives Mr. R six more criminal history points, putting him in the Guidelines’ highest criminal history category. Second, it gives Mr. R a large new pre-first-deportation enhancement under the reentry guideline. The 1995 convictions occurred before Mr. R’s first deportation, so they trigger a separate enhancement from the 1998 sentence. And even though the parole violation ran concurrent with the new robbery sentence, it is added to the 1995 sentence and thus the pre-deportation sentence enhancement.³⁶¹ Based on this calculation, the probation officer concludes that Mr. R’s Guidelines range is 130 to 162 months.

The defense lawyer makes no objections to the probation officer’s conclusions. At the sentencing hearing, the defense lawyer argues that these convictions are quite old and the product of Mr. R’s troubled youth, while today Mr. R is a deeply religious man who works as a Christian pastor. Mr. R complains to the judge that his defense lawyer has not communicated with him about the surprise increase in his sentence. The judge proceeds with sentencing anyway and gives Mr. R ninety-six months in prison.

Subsequent litigation revealed that this Guidelines range was in fact wrong. The 1995 convictions should not have counted for the 2018 Guidelines calculation, because Mr. R’s parole violation sentences were discharged in September 2000. California law provides that a person cannot be kept in custody longer than four years on a parole violation for a noncapital felony.³⁶² This means Mr. R was not in custody on those cases within fifteen years of 2018. But his discharge from parole could only be discovered by looking at prison administrative records kept by the California Department of Corrections. Mr. R’s discharge was noted in pencil on a paper log in his prison file, which could only be obtained through a written request.³⁶³ Because of this error, Mr. R should have been in a lower criminal history category, and he should not have received a pre-deportation felony enhancement. Mr. R’s actual Guidelines range should have been forty-six to fifty-seven months.

This case illustrates several absurdities about unlawful reentry sentencing. First is the strange focus on the timing of the first deportation. Mr. R was deported from the United States multiple times, but his recommended sentence was dramatically increased because his first deportation happened to occur between two felony convictions. Had his first deportation happened before 1995 or after 1998, his Guidelines range would have been at least five years lower.³⁶⁴ Second is the importance of supervision violations. Because they extend the clock on very old convictions, large swings in sentence length can turn on precisely when a probation or parole violation occurred. And because the Guidelines count violations as part of the original conviction, two completely concurrent sentences (one for a new crime and one for a supervision violation) are treated as separate sentences of the same length. Third is how crucial the Guidelines make difficult-to-find state records. Mr. R’s defense lawyer did not know about the parole violations that, according to the probation officer, made the 1995 convictions count against Mr. R in 2018. And neither the lawyer nor the probation officer found the document in Mr. R’s prison file that proved the convictions were, in fact, too old. When large sentence swings turn on the precise details of state cases, defendants are at the mercy of state agencies’ variable recordkeeping practices.

Mr. R’s case is exceptional in some respects, including that his sentence was unusually long for a reentry case.³⁶⁵ But the problems it illustrates are endemic to the reentry guideline. They emerge in one form or another in thousands of cases every year. And his case also follows a familiar pattern for reentry prosecutions. Mr. R spent nearly his entire life in the United States. It is where his family lives and it is the only country he considers home. But he also accumulated a serious criminal record in his late teens and early twenties. Now, as a man in his forties whose entire life is in the United States, he keeps trying to return.³⁶⁶ And, because of the reentry guidelines’ double enhancements, those convictions from his youth keep triggering lengthy sentences every time he comes back.

IV. Sentencing Constitutionalism

This Article has shown that the federal sentencing system discriminates against undocumented immigrants. So what can be done about it? Naturally, Congress could amend the First Step Act so that immigrants receive earned time credit. The Sentencing Commission could also rewrite the reentry guideline to remove its extra criminal history enhancements. Such legislative fixes would be straightforward. This Part will thus focus instead on what can be done by federal judges and the lawyers who appear before them.³⁶⁷ A constitutional Equal Protection challenge seems like an intuitive strategy.³⁶⁸ But that approach faces significant obstacles under current case law. The Supreme Court has disallowed racial disparate impact claims, and it grants the federal government substantial leeway to discriminate by immigration status.³⁶⁹ Such doctrinal hurdles may be surmountable, but advocates challenging these sentencing policies have yet to overcome them.

This Part proposes another approach, herein labeled “sentencing constitutionalism.” The basic idea is that sentencing decisions are less constrained than other judicial decisions. In the sentencing context, judges exercise normative discretion over the size of the punishment and the reasons that justify it. And judges can include amongst those reasons a desire to advance underenforced constitutional norms.³⁷⁰ Because so much deference is built into modern Equal Protection doctrine, many instances of clear discrimination go unremedied in formal constitutional review. Recognizing this, several scholars have developed a theory of “administrative constitutionalism.”³⁷¹ These scholars have observed that executive branch agencies use their policymaking discretion to combat forms of discrimination, such as racial disparate impact, that cannot be remedied in court. Judges should do the same in the immigrant sentencing context. Specifically, judges should counteract the racial and immigration-status-based discrimination built into federal sentencing law by (1) refusing to apply the reentry guideline’s recidivist enhancements, and (2) discounting immigrants’ sentences to account for the fact that they cannot earn First Step Act credits.³⁷² Many federal judges have already embraced this kind of approach in the crack cocaine sentencing context. The crack/powder disparity in federal sentencing law is racially discriminatory, and Equal Protection challenges have entirely failed to remedy it. However, federal judges have somewhat counteracted this discrimination in their sentencing decisions. Numerous judges have explicitly rejected the higher crack guideline as a matter of policy. And overall, federal judges vary downward from the Guidelines range in most crack cocaine cases. This systematic judicial rejection of the crack guideline is motivated by constitutional equality concerns. Judges should do the same with reentry sentences.

A. A Two-Track Model of Equal Protection at Sentencing

Immigrant defendants can challenge the sentencing discrimination described above as violating Equal Protection. This argument can be made as a constitutional challenge to the validity of the laws themselves. It can also be made as a quasi-constitutional appeal to judges’ discretionary sentencing power. The former strategy runs into major obstacles in the form of deference principles established by the Supreme Court. The latter strategy lacks the compulsory force of law, but avoids the limitations of contemporary Equal Protection doctrine. Here both strategies will be explored in turn.

Both the First Step Act and the reentry guideline explicitly discriminate against defendants based on their immigration status.³⁷³ Numerous defendants have argued that these laws are therefore unconstitutional.³⁷⁴ To date, such arguments have not found success. Defendants have been unable to overcome the Supreme Court’s deference to the federal government when it comes to immigration policy. Under the plenary power doctrine, the Court gives Congress and the President broad leeway to enact policies that discriminate by immigration status.³⁷⁵ The Court has directed greater scrutiny at state laws that harm immigrants, but that is not helpful in the federal sentencing context.³⁷⁶ Perhaps more usefully, the Court in Hampton v. Wong did apply heightened scrutiny to federal agency regulations that discriminate against immigrants.³⁷⁷ Wong involved a Civil Service Commission regulation excluding all noncitizens from federal employment.³⁷⁸ The Court applied heightened scrutiny to this regulation, reasoning that the plenary power doctrine does not protect agency rules unless they are mandated by Congress or the President.³⁷⁹ The Court held that when an agency discriminates by immigration status, it must demonstrate both an “overriding national interest” and evidence that the policy was “actually intended to serve” that interest.³⁸⁰ Because the Guidelines are written by an independent agency (the Sentencing Commission), Wong may support a constitutional challenge to the reentry guideline.³⁸¹ The post-deportation enhancement seems especially vulnerable, since it (1) is not connected to Congress’s statutory maximum increase, which applies only to pre-deportation felonies, and (2) does not meaningfully deter reentry because it punishes only post-reentry conduct. Nonetheless, Wong-based challenges to the reentry guideline have yet to find success in court.³⁸²

Defendants could also argue that the reentry guideline and the First Step Act discriminate by race and ethnicity. Nearly every person harmed by these rules is of Latin American ancestry.³⁸³ And policies that discriminate by race are subjected to strict scrutiny.³⁸⁴ The problem, however, is that these rules are facially neutral as to race, and the Supreme Court has foreclosed Equal Protection challenges based on disparate impact claims.³⁸⁵ A law could thus apply against only one race ninety-nine percent of the time and still be upheld in court because it is facially neutral. The Court has carved out one important exception to this rule: under the Arlington Heights test, a formally race-neutral law violates Equal Protection if it was enacted with racist purposes and has a racially disparate impact.³⁸⁶ A defendant could try to bring such a challenge to the First Step Act or the reentry guideline. In the guideline context, this would likely mean emphasizing the racist panic in Florida that gave rise to the double criminal history enhancements. In the First Step Act context, it would mean focusing on the Trump Administration’s 2018 nativism. However, Arlington Heights challenges face two significant hurdles. First is the problem of proving intent—federal courts adopt a strong presumption that government action is not racially motivated.³⁸⁷ Second is the problem of reenactment—if a rule is enacted for discriminatory reasons at Time One, and then reenacted for different reasons at Time Two, courts often treat Time Two as decisive. For example, many defendants have argued that the unlawful reentry statute is itself unconstitutional due to its racist history.³⁸⁸ While federal courts have largely conceded that the law’s original enactment was racist, they have unanimously upheld the law because it was later reenacted.³⁸⁹

Modern Equal Protection doctrine thus erects significant barriers to immigrants’ antidiscrimination claims. While these barriers may be surmountable in some cases, they significantly limit the potential of constitutional challenges against the First Step Act and the reentry guideline. Another option would be to appeal to district judges’ sentencing discretion. After Booker, sentencing judges do not have to follow the Guidelines.³⁹⁰ They can sentence a defendant anywhere within the statutory range, subject only to deferential appellate review for reasonableness.³⁹¹ Because the judge is the key decisionmaker at sentencing, rather than Congress or the executive, the deference doctrines discussed above lack purchase. A judge can use their discretion to counteract race-based and immigration-status-based discrimination built into the federal sentencing rules. And judges should do so to vindicate a constitutional equality norm that, because of those deference doctrines, goes widely underenforced.³⁹² Constitutional norms can thereby have wider play in the discretionary sentencing context than they do in the judicial review context. This idea will here be called “sentencing constitutionalism.”

Administrative constitutionalism is a close analogue to sentencing constitutionalism. In numerous contexts, scholars have observed administrative agencies using their policymaking discretion to advance constitutional norms beyond the level required by courts. For example, in the 1960s both the Federal Communications Commission and the Federal Power Commission interpreted the Equal Protection Clause as requiring regulated companies to achieve racial equality in employment.³⁹³ In the 1940s and 1950s, the Federal Social Security Board enforced an Equal Protection norm safeguarding the welfare rights of the poor.³⁹⁴ During the Obama Administration, the Department of Housing and Urban Development adopted rules requiring recipients of federal funding to affirmatively reduce racial housing disparities.³⁹⁵ And, in the criminal justice context, contemporary federal (and some state) prosecutors have adopted a wide array of self-limiting rules that protect defendants’ constitutional rights beyond what courts require.³⁹⁶ In these examples and others, agencies go above the floor set by judicial doctrine and implement a more robust vision of constitutional rights. They do so through their own discretionary rulemaking authority. Judges, when they sentence defendants, operate in a similar context. Deference doctrines like plenary power over immigration, the prohibition on disparate impact claims, and others lack purchase because judges are themselves determining sentences. So long as they do not violate the law, judges can go above the constitutional floor just as agencies have.³⁹⁷ Policymaking discretion thus lets them implement constitutional antidiscrimination norms to a greater degree than formal doctrine requires.

Sentencing constitutionalism is also similar to the concept of an imperfect defense.³⁹⁸ In criminal trials, defenses are binary. The judge either will or will not let the defendant argue a defense, and the jury either will or will not acquit based on a defense. Because a successful defense exonerates completely, the formal elements of defenses are often written quite narrowly. The federal duress defense, for example, only applies where the defendant faces an “immediate threat of death or serious bodily injury.”³⁹⁹ The most common version of the insanity defense is limited to situations where the defendant either (1) did not know what they were doing or (2) was incapable of understanding that their action was wrongful.⁴⁰⁰ And California’s entrapment defense only applies where the police conduct would cause a “normally law-abiding person” to commit the crime.⁴⁰¹ Because these and other defenses are defined narrowly, they fail to exonerate the defendant in many cases where it seems like they should apply. Take, for example, someone who committed a crime on the orders of their abusive partner, but was not in immediate peril at the time of the crime. That person will not satisfy the elements of a duress defense, even though the moral purpose underlying the defense clearly applies.⁴⁰² In cases like these, many U.S. jurisdictions lower the defendant’s sentence to account for the “imperfect” defense.⁴⁰³ The Federal Sentencing Guidelines, for example, enumerate imperfect duress as a reason for downward departure.⁴⁰⁴ Several federal circuits have also recognized imperfect entrapment as a legitimate basis for downward departure.⁴⁰⁵ And numerous states’ sentencing statutes specifically list imperfect defenses as mitigating factors.⁴⁰⁶ Such imperfect defenses are structurally similar to sentencing constitutionalism. Both involve situations where a defendant’s legal argument has strong moral force (e.g., a duress defense or discrimination claim). However, the argument fails in court for technical reasons (e.g. the defense is too narrowly defined, or the discrimination claim is denied out of deference and administrability concerns). In such circumstances, judges can use their sentencing discretion

to compensate for the narrowness of formal law. They can lower a defendant’s sentence to account for the injustice that otherwise goes unremedied.⁴⁰⁷

Sentencing constitutionalism also finds conceptual support in Justice Anthony Kennedy’s concurrence in Beckles v. United States.⁴⁰⁸ In Beckles, the Supreme Court held that defendants cannot bring constitutional vagueness challenges to the Sentencing Guidelines.⁴⁰⁹ The majority reasoned that because the Guidelines are purely advisory post-Booker, they do not raise the same due process concerns as a vague criminal statute.⁴¹⁰ Justice Kennedy wrote separately to note that constitutional vagueness challenges should still have a place in discretionary sentencing decisions. However, he posited that “the realm of judicial discretion in sentencing” required “some other explication of the constitutional limitations.”⁴¹¹ He thus suggested that the Constitution should be operationalized differently at sentencing. That is also the intuition behind sentencing constitutionalism. Indeed, Kennedy’s reasoning could cover a variety of criminal procedure rights that do not normally apply at sentencing.⁴¹² The right to confront witnesses, the prohibition on double jeopardy, the right not to be punished for acquitted conduct, the privilege against self-incrimination, and other constitutional principles can be incorporated into the discretionary sentencing context (perhaps in a modified form with more judicial flexibility).⁴¹³ This would particularly make sense in the federal system, where trials have all but disappeared and there is far more litigation at sentencing than at the guilt-or-innocence phase.⁴¹⁴ Thus sentencing constitutionalism, in addition to providing an alternative remedy for Equal Protection claims, might also bring some of the Constitution’s criminal procedure architecture into the sentencing process.

B. Sentencing Constitutionalism and The Crack/Powder Disparity

The history of federal crack cocaine sentencing provides a real-world case study of sentencing constitutionalism. The story begins in 1986, with the tragic death of a basketball player named Len Bias. Bias died after using cocaine on the night he was drafted into the NBA.⁴¹⁵ The public reaction to his death launched a nationwide media-driven moral panic over crack cocaine.⁴¹⁶ This panic had a clear racial dimension, as crack cocaine abuse was widely perceived to be an epidemic amongst African-American individuals.⁴¹⁷ Politicians and the wider public feared that crack use was spreading from the inner cities to suburbia.⁴¹⁸ For example, Senator Lawton Chiles inserted a Florida newspaper article into the Congressional Record that reported: “Less than a block from where unsuspecting White retirees play tennis, bands of young Black men push their rocks on passing motorists, interested or not.”⁴¹⁹

Responding to this panic, Congress enacted the Anti-Drug Abuse Act of 1986.⁴²⁰ Senator Chiles was one of the “prime movers” behind the law.⁴²¹ It created new mandatory minimum penalties for federal drug trafficking crimes, which were triggered by a much lower quantity of crack than of powder cocaine. The law provided a ten-year mandatory minimum sentence for crimes involving five kilograms of powder cocaine, but just fifty grams of crack.⁴²² Similarly, it provided a five-year mandatory minimum for 500 grams of powder but just five grams of crack.⁴²³ This 100-to-1 ratio was not the product of any systematic study of the drugs’ relative effects—Congress’s factfinding process was perfunctory.⁴²⁴ Rather, legislators engaged in a one-way auction, ratcheting up the crack cocaine penalties in a competition to show which party could look tougher.⁴²⁵

The higher penalties for crack had a clear disparate impact on African American defendants. In 1993, 88.3% of federal crack cocaine defendants were Black and only 4.1% were White.⁴²⁶ By comparison, powder cocaine defendants were 27.4% Black and 32% White.⁴²⁷ The average federal drug sentence for a Black defendant went from 11% higher than that of a White defendant in 1986 to 49% higher four years later.⁴²⁸ Black defendants sentenced under the new law brought Equal Protection challenges, arguing that this crack/powder disparity was racially discriminatory. Such Equal Protection claims succeeded, albeit temporarily, in only two cases. Judge Clyde Cahill of the Eastern District of Missouri struck down the crack/powder disparity on Equal Protection grounds, finding that the 1986 Congress was motivated by unconscious anti-Black racism.⁴²⁹ Judge Cahill’s ruling was then reversed by the Eighth Circuit.⁴³⁰ The Minnesota Supreme Court also struck down a state statute creating higher penalties for crack than powder cocaine, concluding that it violated the state constitution.⁴³¹ The Minnesota legislature responded by increasing the penalties for powder cocaine to match those of crack.⁴³² Beyond those two outliers, such Equal Protection challenges failed. The federal courts of appeal unanimously upheld the disproportionate punishment of crack defendants.⁴³³ As the Fourth Circuit explained: “[T]here is evidence that the line Congress and the Sentencing Commission have drawn has a disproportionate impact upon blacks. But this is not sufficient to make out an Equal Protection violation.”⁴³⁴

When the Sentencing Commission published the first Guidelines Manual in 1988, it based drug trafficking sentences on the mandatory minimums set by Congress.⁴³⁵ The centerpiece of the drug trafficking guideline is a “Drug Quantity Table” that specifies the defendant’s base offense level.⁴³⁶ This Table gives the defendant an offense level between six and thirty-six depending on the type and amount of drug involved in the crime. Following Congress, the Commission set the amount of crack cocaine corresponding to each level on the Table at 1/100th the amount of powder cocaine at that same level. So, for example, a defendant would have a base offense level of 28 for 2.0–2.9 grams of crack cocaine or 200–299 grams of powder cocaine.⁴³⁷ This gave defendants with crack much higher sentences than defendants with an equivalent amount of powder. Appeals courts rejected defendants’ Equal Protection challenges to the Guidelines, using the same reasoning that they applied to the underlying statute.⁴³⁸ In 1995, the Sentencing Commission attempted to change the drug guideline in order to reduce the gap between crack and powder cocaine sentences.⁴³⁹ Congress, however, exercised its veto power over Guidelines amendments to keep the disparity in place.⁴⁴⁰

Then, in the 2005 case United States v. Booker, the Supreme Court made the Guidelines advisory.⁴⁴¹ This meant district judges could now choose to disregard the Guidelines and sentence defendants anywhere within the relevant statutory range. Federal judges soon took advantage of this new discretion to mitigate the crack/powder disparity. Citing racial discrimination concerns, numerous judges began to systematically sentence defendants below the Guidelines range in crack cocaine cases.⁴⁴² One such judge noted that “[t]his Court’s conclusion that a non-Guideline sentence is called for is . . . supported by the vast majority of district courts that have evaluated the crack/powder cocaine sentencing disparity in the wake of Booker.”⁴⁴³ The Supreme Court then confirmed judges’ power to categorically reject the crack cocaine guidelines in two decisions: Kimbrough v. United States and Spears v. United States.⁴⁴⁴ The Court also singled out the crack guideline for criticism in Kimbrough, noting that it was based solely on the mandatory minimums in the 1986 law, not on any empirical study of drug crimes or drug sentencing.⁴⁴⁵ Since then, judges have increasingly used their discretion to lower crack cocaine sentences. The Sentencing Commission’s statistics show that the rate of below-Guideline sentences in crack cases has consistently been the highest of all major drug types.⁴⁴⁶ The rate of downward variances has also steadily risen since Booker, and today more than half of all federal crack cocaine sentences are below the relevant Guidelines range.⁴⁴⁷

This history is a real-world example of sentencing constitutionalism. The crack/powder sentencing disparity is clearly racially discriminatory. It was produced during a racialized moral panic over Black drug use, and it disproportionately burdens Black defendants. Due to the hollowed-out nature of Equal Protection doctrine, defendants were unable to convince judges to declare the crack/powder disparity unconstitutional. However, some judges have exercised their sentencing discretion to lessen the constitutional harm.

Judges should do the same thing in unlawful reentry cases. Indeed, there are deep parallels between crack cocaine sentencing and unlawful reentry sentencing. Both involve formally neutral guideline provisions that produce overwhelming disparate impacts according to race and ethnicity. Neither guideline provision was the product of any systematic study by the Commission. Both were essentially copied from recently enacted statutes that increased the punishment ranges. In both cases, the underlying statute was enacted during a racialized moral panic in the 1980s. Both statutes were championed by the same Senator (Lawton Chiles), indeed both were even enacted through bills with the title “Anti-Drug Abuse Act.” And constitutional Equal Protection challenges to both statutes have failed in the federal courts. The major difference is that judges have systematically used their discretion to mitigate sentencing discrimination in crack cocaine cases. They have not yet done so in unlawful reentry cases.

Conclusion

This Article has shown that federal sentencing laws explicitly discriminate against undocumented immigrants. The Sentencing Guidelines give them duplicative recidivism enhancements that do not apply to U.S. citizens. The First Step Act denies them sentence reductions that U.S. citizens receive. This discrimination contributes to a racial and nationality-based hierarchy in the federal criminal justice system. Undocumented immigrants, nearly all of them Latin American, prosecuted for entering the United States, are treated as a legal underclass. They are punished more severely for past crimes and granted less mercy for current rehabilitation. Fortunately, federal district judges can help counteract this discrimination. Sentencing judges have the power to disregard the Guidelines’ duplicative enhancements. They also have the power to correct for immigrants’ exclusion from in-custody sentence reduction programs. For nearly twenty years, judges have mitigated a similar injustice in crack cocaine cases by systematically lowering sentences. They have done so out of recognition that the sentences for crack cocaine are racially discriminatory, and that this discrimination has gone unremedied in ordinary litigation. Judges should do the same for undocumented immigrants.

Appendix

99 S. Cal. L. Rev. 291

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Eric S. Fish*

*Professor of Law, University of California at Davis. For their invaluable help the author would like to thank Jessie Agatstein, Elizabeth Arford, Amber Baylor, Marcus Bourassa, Jack Chin, Haiyun Damon-Feng, Ingrid Eagly, Sheldon Evans, Jailene Gutierrez, Deborah Kang, Doug Keller, Litzy Martinez Rodriguez, Emmanuel Mauleon, Sean McGuire, Jacob Schuman, Rory Van Loo, Charles Weisselberg, Rebecca Wexler, and the participants in Crimfest, Southwest Crim, the Yale Law PhD program colloquium, and faculty workshops at the University of California Irvine and the University of California Berkeley. Thank you also to the editors of the Southern California Law Review for their excellent editorial work.

PI + 9: A Modest Proposal to Protect Americans’ Individual Rights

March 2026March 2026Lincoln Son Currie*

INTRODUCTION

Civil liberties deserve better protection than the dubious doctrine of substantive due process. Fortunately, an underappreciated, yet significant, development is ripening within the Supreme Court’s jurisprudence surrounding the incorporation of the Bill of Rights. At least two Supreme Court Justices¹ are willing to consider opening the Privileges or Immunities Clause door to incorporation that the Slaughter-House Cases slammed shut.² What if three more Justices changed their minds and that door swung open?

This Note provides a new methodology called the “PI + 9 Framework.” The PI + 9 Framework combines the Fourteenth Amendment’s Privileges or Immunities Clause (“PI”) with the Ninth Amendment (“9”) to apply the Bill of Rights to the states in a more efficient, clear, and sturdy way. This proposition is a bold, yet modest, means by which to incorporate the Bill of Rights against the states while securing unenumerated rights. The Framework is faithful to the original public meaning and original intent of the Privileges or Immunities Clause. The PI + 9 Framework focuses on the procedures by which substantive rights are secured rather than seeking untested answers that could destabilize manifold areas of law. Instead, the PI + 9 Framework seeks to ground the Bill of Rights, including unenumerated rights, in something more robust than substantive due process. The emphasis on a proper mechanism addresses justified concerns about the Privileges or Immunities Clause and the Ninth Amendment becoming a Pandora’s box.

This Note will begin by examining the only appropriate means for incorporating the Bill of Rights against the states: the Privileges or Immunities Clause. Part I conducts an in-depth textual analysis of the meaning of privileges and immunities in the context of the Privileges or Immunities Clause. Part II analyzes the case law surrounding the Clause, with a particular focus on the Slaughter-House Cases and some pertinent concurrences and dissents by Justice Black and Justice Thomas, respectively. Part III makes the case for overruling Slaughter-House based on the Supreme Court’s recent application of stare decisis factors. This Part goes factor-by-factor to argue why stare decisis should not prevent Slaughter-House from being overruled. Part IV argues for an end to substantive due process due to its poor reasoning and inability to adequately secure rights. Part V discusses how the Court should recognize unenumerated rights and considers which Ninth Amendment methodology would best identify and secure those rights. Part VI applies the PI + 9 Framework to two hypothetical fact patterns—one involving an enumerated right and the other involving an unenumerated right. A helpful chart of the Framework is included in that Part. Part VII lays out the advantages the PI + 9 Framework has over the current substantive due process regime. This Note gives the Supreme Court a guide for replacing substantive due process while preserving incorporation of the Bill of Rights and protecting the unenumerated rights that the Court is anxious about safeguarding.

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

Before analyzing the Privileges or Immunities Clause’s case law, the meaning of privileges and immunities—and the meaning of those words when used alongside one another—is worth examining.

A. Interpreting Privileges and Immunities in Historical Context

The meaning of privileges and immunities is best explored by looking at the words’ meanings at the time of the Fourteenth Amendment’s ratification—while also keeping in mind the historical usage of those words in the Anglo-American legal tradition.

A Few Meanings of Privilege

The meaning of privilege at the time of the Fourteenth Amendment’s ratification, 1868,³ offers a guide that may be considered independently or alongside the Framers’ intent when interpreting the Privileges or Immunities Clause. A leading dictionary from around the time of ratification provided three definitions of privilege: (1) “[a] particular and peculiar benefit or advantage enjoyed by a person, company, or society, beyond the common advantages of other citizens”; (2) “[a]ny peculiar benefit or advantage, not common to others of the human race”; (3) “[a]dvantage; favor; benefit.”⁴ The first and second definitions are plausible, but the third is too vague to offer meaningful guidance toward understanding the Privileges or Immunities Clause in context. The first two definitions are more precise. Additionally, the third definition does not contradict the preceding definitions; thus, its interpretive value diminishes. Therefore, two definitions of privilege remain.

Privilege As a Benefit Beyond Those Held by Common Citizens

The first definition of privilege does not suit the Privileges or Immunities Clause and is better understood in the mode that privilege is used in the Speech and Debate Clause found in Article I, Section 4 of the Constitution.⁵ The Speech and Debate Clause guarantees that “Senators and Representatives” shall “be privileged from Arrest” during legislative sessions and when coming from and going to those sessions—except in cases of “Treason, Felony and Breach of the Peace.”⁶ This fits the first definition of privilege because the privilege granted to Senators and Representatives is not granted to common American citizens, who enjoy no such privilege.

Anglo-American jurists such as William Blackstone, Matthew Hale, and James Kent all occasionally used privilege to mean a benefit beyond those held by common citizens. For example, Blackstone described the “privilege of letters”⁷ that allowed members of parliament to send and receive letters free of postage.⁸ Hale wrote about bishops and abbots who “had special privileges granted to them to have mints.”⁹ Kent mentioned the privileges consuls are entitled to, “such as for safe conduct.”¹⁰ However, interpreting privilege in that manner in the context of the Privileges or Immunities Clause creates an incongruity. Under this inappropriate definition of privilege, the Privileges or Immunities Clause would guarantee that states could not abridge the benefits that citizens of the United States enjoyed beyond the benefits enjoyed by citizens of the United States. Inserting the first definition of privilege creates a contradiction. This preposterous result proves that privilege in the Privileges or Immunities Clause should not be interpreted as an advantage enjoyed beyond those enjoyed by common citizens.

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

To determine whether a “peculiar benefit or advantage not common to others of the human race”¹¹ is within the Clause’s scope, the Court would need to consider which benefits or advantages of citizens of the United States fall within the Clause’s scope. Americans enjoy manifold privileges as citizens of a prosperous nation. However, regarding the Privileges or Immunities Clause, the legal privileges are the most suitable for judges to ascertain.

The writings of prominent Anglo-American jurists suggest that the second definition of privilege, as a peculiar benefit or advantage, encompasses rights. Anglo-American jurists sometimes used privilege interchangeably with rights. For example, Blackstone described “those civil privileges”¹² as part of what constitutes a right found in “the declaration of our rights and liberties.”¹³ Kent mentioned the “right of trial by jury”¹⁴ in suits at common law, which the Seventh Amendment secures.¹⁵ Elsewhere, Kent referred to the jury trial right as a privilege. For example, Kent described some of “the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves, and the privilege of trial by jury.”¹⁶

Founding-era historical evidence offers additional proof that privilege’s second definition is the most appropriate one. At the time of the American Revolution, “[t]he words rights, liberties, privileges, and immunities, seem to have been used interchangeably.”¹⁷ Indeed, as evidenced by Blackstone’s invocation of privilege and historical examples that predate or coincide with the American Revolution, the interchangeability of privilege and right is well-founded.¹⁸

Viewing privilege as interchangeable with right, advantage, benefit, or immunity results in an interpretation aligned with privilege’s original public meaning at the time of the Fourteenth Amendment’s ratification. Under that definition, the Privileges or Immunities Clause would be understood to protect “the [rights, benefits, advantages] or [I]mmunities of citizens of the United States” from state abridgment.¹⁹

A Few Meanings of Immunity

Around the time of the Fourteenth Amendment’s ratification, a leading American dictionary listed three definitions for immunity: (1) “[f]reedom or exemption from obligation”; (2) “[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”; and (3) “[f]reedom.”²⁰ Like the three definitions of privilege, the first two are plausible on their faces, but the third is too vague. Moreover, like the third definition of privilege,²¹ the third definition of immunity does not contradict the first or second definition. Thus, two definitions are ripe for examination.

The Broader Immunity Definition Is the Best Match

The first definition of immunity is an incomplete match for how immunities is used in the Privileges or Immunities Clause.²² The second and more capacious definition of immunities—“[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”²³—fits more naturally with other constitutional protections that existed at the time of the Fourteenth Amendment’s ratification. One example precedes the Bill of Rights.

Before the ratification of the Bill of Rights, Americans enjoyed an important immunity that remains in force. Article III, Section 3 of the Constitution grants Congress the power to decide how treason is punished but provides that “no Attainder of Treason shall work Corruption of Blood.”²⁴ The Constitution does not define the prohibition of Corruption of Blood as punishment for treason as a right, immunity, or anything else. The punishment is simply prohibited. Any attempt by Congress to make treason punishable by Corruption of Blood would be voided due to its conflict with the Constitution.²⁵ Thus, Article III, Section 3 of the Constitution could reasonably be interpreted as providing immunity to American citizens from Corruption of Blood as a punishment for treason.

In a similar way, several provisions in the Bill of Rights provide for exemptions against certain charges and impositions. The Fifth Amendment prohibits double jeopardy and thus exempts a person from any charge of which they were already acquitted.²⁶ The Eighth Amendment exempts or immunizes Americans from the imposition of excessive fines.²⁷ Even if the word rights were not synonymous with immunities, some provisions of the Bill of Rights could reasonably be interpreted as immunities.

B. Rights, Privileges, and Immunities

Rights, privileges, and immunities were interchangeable words at the time of the Fourteenth Amendment’s ratification.²⁸ One needs to look no further than a dictionary to see that privilege and immunity were words used to define the word right.²⁹ Justice Thomas recognized this reality in his concurrence in McDonald v. City of Chicago.³⁰ Absent a showing that the Privileges or Immunities Clause means something other than what it says, the plain meaning appears to cover at least those rights enumerated in the Constitution at the time of the Fourteenth Amendment’s ratification, namely those in the Bill of Rights.³¹ The Bill of Rights originally established a baseline of rights that only applied to the federal government.³² Despite the rights being limited to protection against federal government infringement, all citizens of the United States still nonetheless enjoyed those rights, albeit with application being limited to the federal government and not state governments.

The plain meaning of privileges and immunities in the Privileges or Immunities Clause is not ambiguous, but construing the Clause is trickier. Given that rights, privileges, and immunities were synonymous at the time of the Fourteenth Amendment’s ratification, one would need to determine whether the Bill of Rights is within the scope of rights enjoyed by citizens of the United States that no state shall abridge.

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

Although several interpretations of the Privileges or Immunities Clause are reasonable,³³ the Clause must answer two questions. First, Are citizens of the United States the only persons whose privileges or immunities are protected from state abridgment? Second, Are states prohibited from infringing on those privileges or immunities that citizens of the United States hold? The first question asks who gets protected by the Privileges or Immunities Clause. The second question asks which rights are protected.

Justice Thomas answered the first question satisfactorily in his concurrence in McDonald v. City of Chicago.³⁴ One need not search outside the same section in which one finds the Privileges or Immunities Clause to find another that operates as a more natural and efficacious anti-discrimination provision: the Fourteenth Amendment’s Equal Protection Clause.³⁵ The Supreme Court occasionally used the Equal Protection Clause to strike down discriminatory laws shortly after Slaughter-House was decided.³⁶ Furthermore, suppose a state passed a law that only abridged the rights of noncitizens. Such abridgment may violate the Fourteenth Amendment’s commandment that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”³⁷ The Privileges or Immunities Clause is read more naturally as a clause that establishes a “minimum baseline of federal rights” that states may not abridge.³⁸ Such a reading answers the aforementioned second question in the affirmative.

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

Any examination of the jurisprudence surrounding the Privileges or Immunities Clause must begin with the Slaughter-House Cases.³⁹ The majority opinion and dissents illuminate Reconstruction Era views of the Clause. Since the Court decided Slaughter-House, the few Justices who have conducted extensive historical analysis of the Clause’s legislative history have arrived at a more expansive view of the Clause.⁴⁰

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

In 1873, the Supreme Court in Slaughter-House held that the Privileges or Immunities Clause did not incorporate the Bill of Rights against the states.⁴¹ Since then, the Privileges or Immunities Clause has been relegated to obsolescence.⁴² Once, in Saenz v. Roe, the Court used the Clause to recognize a right to travel⁴³ by striking down a California law⁴⁴ limiting welfare benefits for new California residents.⁴⁵ In his Saenz dissent, Chief Justice Rehnquist lamented the Court’s revival of the Clause, in part because the Clause had been dormant for so long.⁴⁶ Eleven years after Saenz, the Court in McDonald v. City of Chicago reluctantly affirmed, or at least refused to revisit, Slaughter-House’s narrow construction of the Privileges or Immunities Clause.⁴⁷ The reluctant affirmation of a questionable precedent was unwarranted in light of the developments after Slaughter-House. Federalism concerns pervaded the majority opinion’s reasoning in Slaughter-House. The Court worried that the Constitution—and the Court expounding it—would become a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”⁴⁸

Nevertheless, the Supreme Court has incorporated most of the Bill of Rights against the states. The remaining unincorporated enumerated rights are the seldom-litigated Third Amendment,⁴⁹ the Fifth Amendment’s Grand Jury Clause,⁵⁰ and the Seventh Amendment right to a trial by jury in suits at common law.⁵¹ The resultant beefing up of the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause has achieved an effect rivaling the censor that the Slaughter-House majority feared.⁵²

Although the Privileges or Immunities Clause’s construction in Slaughter-House stands as good law today, the dissenters’ views shed some light on other views of the Privileges or Immunities Clause around the time of the Fourteenth Amendment’s ratification. Four Justices dissented in Slaughter-House.⁵³ Justice Field—joined by Chief Justice Chase, Justice Swayne, and Justice Bradley—dissented and wrote that if the Fourteenth Amendment’s Privileges or Immunities Clause were interpreted as narrowly as the majority interpreted it, then the Privileges or Immunities Clause “was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”⁵⁴ Justice Field foresaw the superfluity of the new Clause if it were read so narrowly and wrote, “With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference.”⁵⁵ Justice Field’s prediction has but one blemish more than 150 years after the Court decided Slaughter-House: Saenz v. Roe.⁵⁶ Although Justice Field’s prediction proved prescient, Justice Bradley and Justice Swayne wrote broader dissents that explicitly advocated incorporating the Bill of Rights against the states via the Privileges or Immunities Clause.

Justice Bradley criticized the majority’s decision by averring that “the Constitution itself” contains “some of the most important privileges and immunities of citizens of the United States.”⁵⁷ One problem with narrowly construing the Privileges or Immunities Clause is that it denigrates the rights set forth in the Bill of Rights as not fundamental or less fundamental. A judge’s place is not to decide which rights in the Bill of Rights are essential and which are not.⁵⁸ Those who ratified the amendments comprising the Bill of Rights thought each was important enough to become part of the nation’s founding document. The people’s will, as expressed through their passage of the amendments, ought to be dispositive on the issue of whether a right in the Bill of Rights is fundamental. Justice Bradley grasped this flaw when he wrote that other rights, privileges, and immunities “of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government.”⁵⁹ The Fourteenth Amendment changed the equation by protecting the privileges or immunities of citizens of the United States from state abridgment.⁶⁰

Justice Swayne wrote a separate dissent and believed that the Reconstruction Amendments “may be said to rise to the dignity of a new Magna Charta.”⁶¹ Justice Swayne also thought the majority’s analysis served to obfuscate rather than clarify.⁶² Justice Swayne believed the Privileges or Immunities Clause was clear and wrote, “Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.”⁶³ Justice Swayne believed the Privileges or Immunities Clause concerned, “among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation.”⁶⁴ This formulation would almost certainly cover each enumerated provision of the Bill of Rights and perhaps some rights not enumerated in the Constitution. After all, even the narrowly construed Privileges or Immunities Clause has already been held to protect at least one unenumerated right: the right to travel.⁶⁵ Justice Swayne acknowledged the objection that “the power conferred is novel and large.”⁶⁶ Justice Swayne had a simple answer to the objection:

The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective.⁶⁷

Justice Swayne ended his dissent by expressing hope that the consequences of the majority’s decision would be “less serious and far-reaching than the minority fear they will be.”⁶⁸ Justice Swayne’s fear was partially realized. On the one hand, most of the Bill of Rights is now incorporated.⁶⁹ On the other hand, incorporation of the Bill of Rights against the states proceeded tardily.⁷⁰ The majority failed to create a precedent that provided a bulwark against the specter of the “perpetual censor”⁷¹ of which the majority expressed great trepidation.⁷² However, the majority succeeded in crafting a precedent that dissuaded most future jurists from pursuing incorporation of the Bill of Rights via the Privileges or Immunities Clause.

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Following Slaughter-House, few Justices have dared to broaden the construction of the Privileges or Immunities Clause. The two most significant proponents of such a construction are Justice Black and Justice Thomas.

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

In 1947, Justice Black, an early practitioner of constitutional originalism,⁷³ concluded in his dissent in Adamson v. California that the Privileges or Immunities Clause was intended to apply the first eight amendments of the Bill of Rights to the states.⁷⁴ In 1968, Justice Black, in a concurrence joined by Justice Douglas,⁷⁵ doubled down on his Adamson dissent. Justice Black once again concluded that the Privileges or Immunities Clause “seem[ed] to [him] an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.”⁷⁶

Experience as a prominent legislator guided Justice Black’s view of the Privileges or Immunities Clause.⁷⁷ Justice Black’s historical analysis of the Privileges or Immunities Clause—and the wholesale incorporation view that resulted therefrom—has value because of his decade-long experience as a United States senator.⁷⁸ Although Justice Black’s opinions regarding incorporation lack the force of law, his experience as a legislator may guide current and future Justices in evaluating the Privileges or Immunities Clause’s legislative history. Regarding the value of prior opinions, Justice Gorsuch wrote, “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.”⁷⁹ The wisdom of former legislators who served as Justices can only be found in the past. No current Supreme Court Justice was ever a legislator. Justice O’Connor was the most recent Justice with any legislative experience,⁸⁰ and Justice Black was the last member of Congress to serve on the Court.⁸¹ Justice Black’s perspective regarding the Privileges or Immunities Clause aids the argument that views the legislative history of the Privileges or Immunities Clause as intending a full incorporation of the Bill of Rights.

Some have lamented when a judge heavily relies on history,⁸² but Justice Black’s opinions offer helpful surveys of the Fourteenth Amendment’s legislative history. The lived experience of a decade as a United States senator adds weight to his opinions regarding the Privileges or Immunities Clause’s legislative history. The fact that no current Justice on the Supreme Court has any experience as a legislator would be a problem if the Court had no previous opinion from a former legislator from which to draw. This is not the case. Justice Black passed down his learning about the Privileges or Immunities Clause’s meaning through his opinions in cases such as Adamson v. California⁸³ and Duncan v. Louisiana.⁸⁴ No judge ought to be required to follow Justice Black’s jurisprudence on every matter that touches legislative history on account of his experience. However, his legislative experience and pioneering originalism lend a unique perspective to any jurist seeking the original meaning of the Privileges or Immunities Clause.

Justice Thomas’s Revival of Privileges or Immunities in McDonald v. City of Chicago

In the past twenty years, Justice Thomas has led the charge for a potent Privileges or Immunities Clause in concurring opinions when a case arises in which the incorporation of a provision of the Bill of Rights is at issue.⁸⁵ Justice Thomas’s interpretation of the Constitution centers around a search for the Constitution’s original meaning.⁸⁶ Justice Thomas employed this interpretive method in his concurring opinion in McDonald v. City of Chicago.⁸⁷ In McDonald, Justice Thomas concluded that the Second Amendment’s right to keep and bear arms applied to the states via the Fourteenth Amendment’s Privileges or Immunities Clause.⁸⁸ After a detailed treatment of the Fourteenth Amendment’s text and history,⁸⁹ Justice Thomas wrote the following about the Privileges or Immunities Clause as it relates to incorporating the Bill of Rights:

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.⁹⁰

Justice Thomas recognized that the legislative history surrounding the Clause was “less than crystal clear.”⁹¹ He also acknowledged the difficulties that interpreting the once-dormant Clause may pose. Still, he argued that interpretation of the Privileges or Immunities Clause was “far more likely to yield discernible answers[ ]than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.”⁹²

In McDonald, Justice Thomas was alone in his interpretation of the Privileges or Immunities Clause. The plurality opinion stated that it “saw no need to reconsider” Slaughter-House and “therefore decline[d] to disturb the Slaughter-House holding.”⁹³ The phrasing in that sentence is crucial. The plurality did not reject Justice Thomas’s view on the merits or defend Slaughter-House on the merits. Instead, they saw another path to incorporation—substantive due process. Because that path remained open, the plurality believed it was merely unnecessary—though perhaps not improper—to revisit Slaughter-House.

The dissents rejected Justice Thomas’s view for similar reasons. In his dissent, Justice Stevens acknowledged the “impressive amount of historical evidence”⁹⁴ that the petitioners compiled in support of their position that Slaughter-House’s narrow reading of the Privileges or Immunities Clause was erroneous. Yet, Justice Stevens believed the original meaning of the Clause was “not nearly as clear as it would need to be to dislodge 137 years of precedent.”⁹⁵ In a separate dissent joined by Justice Ginsburg and Justice Sotomayor, Justice Breyer declined to defend Slaughter-House on the merits and instead wrote only that “the plurality today properly declines to revisit our interpretation of the Privileges or Immunities Clause.”⁹⁶ The refusal to substantively engage with Justice Thomas’s opinion or to defend Slaughter-House on the merits is at least some evidence of the weak footing on which opposition to Justice Thomas’s conclusion rests. A maxim from Chief Justice Marshall is enough to support Justice Thomas’s conclusion and defeat Slaughter-House’s construction of the Privileges or Immunities Clause, such that the only justification for upholding Slaughter-House is stare decisis. In Marbury v. Madison, Chief Justice Marshall wrote, “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”⁹⁷ The words of the Privileges or Immunities Clause do not require such a narrow construction. Slaughter-House ought to be overruled unless stare decisis justifies upholding the precedent.

The Post-McDonald Future of the Privileges or Immunities Clause

Although Justice Thomas was unsuccessful in reviving the Privileges or Immunities Clause in McDonald, he has continued to defend his interpretation of the Clause. In Timbs v. Indiana, Justice Thomas would have applied the Eighth Amendment’s prohibition of excessive fines to the states via the Privileges or Immunities Clause—not the Due Process Clause.⁹⁸ In Dobbs v. Jackson Women’s Health Organization, Justice Thomas argued for reconsidering every substantive due process precedent and deciding whether the rights protected by those precedents are protected by the Privileges or Immunities Clause.⁹⁹ Since McDonald, Justice Thomas has found one potential ally to support his view of the Privileges or Immunities Clause. In 2019, Justice Gorsuch has emerged as a possible proponent of incorporation via the Privileges or Immunities Clause, a position he contemplated in Timbs.¹⁰⁰

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

Stare decisis is not an “inexorable command.”¹⁰¹ However, the rule of law rests on a measure of stability. Justice Brandeis was prudent to say, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”¹⁰² Nevertheless, the oft-wise policy is weakest when the Supreme Court interprets the Constitution because changing a constitutional precedent can only be accomplished via constitutional amendment—an arduous process—or by overruling the precedent.¹⁰³

The Slaughter-House majority’s interpretation of the Privileges or Immunities Clause is wrong and should be overruled. To overrule it, the Court would need to find that stare decisis factors weigh in favor of overruling the case. The Court tends to rely on six stare decisis factors: (1) nature of the error; (2) quality of the reasoning; (3) workability of the rule established; (4) disruptive effect on other areas of law; (5) developments since the case was decided; and (6) reliance interests.¹⁰⁴ All but one particular factor is either neutral or weighs in favor of overruling Slaughter-House. The factors as a whole weigh strongly in favor of overruling Slaughter-House and interpreting the Fourteenth Amendment’s Privileges or Immunities Clause as fully incorporating the Bill of Rights.

A. The Nature of the Slaughter-House Majority’s Error

The first factor focuses on the degree of wrongness and the damaging effects of the decision rather than the reasoning itself.¹⁰⁵

The Slaughter-House majority’s opinion constituted the type of egregious and deleterious error¹⁰⁶ that makes the first stare decisis factor weigh in favor of overruling Slaughter-House. Suppose that each provision of the Constitution were interpreted as narrowly as the Privileges or Immunities Clause. If each constitutional provision were interpreted so narrowly as to be famous for having little or no effect,¹⁰⁷ what purpose would the Constitution serve? The judicial nullification of the Privileges or Immunities Clause is repugnant to a democratic people and disrespects the ratifiers of the Fourteenth Amendment. The majority’s decision in Slaughter-House was nothing more than the “exercise of raw judicial power,”¹⁰⁸ which in effect nullified part of the Fourteenth Amendment.

Decisions that invent “principles or values that cannot fairly be read into [the Constitution] usurp the people’s authority.”¹⁰⁹ Here, the Slaughter-House majority did the inverse of what the Dobbs majority criticized Roe v. Wade¹¹⁰ and Planned Parenthood of Southeastern Pennsylvania v. Casey¹¹¹ for doing. The Dobbs majority believed that Roe and Casey improvidently took a decision not yet made by the American people and made it for them via judicial pronouncement;¹¹² the Slaughter-House majority took a decision already made by the American people, through the ratification of the Fourteenth Amendment, and revoked it via an impermissibly narrow interpretation¹¹³ of the Privileges or Immunities Clause that sapped the Clause of all might.

B. The Quality of the Slaughter-House Majority’s Reasoning

Silence and evasion cry out for criticism. When nobody stands to defend a precedent’s reasoning, the quality of the reasoning is weaker.¹¹⁴ In 2020, a plurality of the Court in Ramos v. Louisiana found the quality of the reasoning factor to weigh in favor of overruling a precedent, partly because “no Member of the Court today defend[ed] [the precedent] as rightly decided.”¹¹⁵ Justices from across the spectrum have attacked the Slaughter-House majority’s reasoning by refusing to defend the merits of Slaughter-House’s interpretation of the Privileges or Immunities Clause.¹¹⁶ The Justices were right to refuse to defend the opinion on the merits because doing so is almost impossible. The consensus of constitutional scholars is that the Slaughter-House majority’s interpretation of the Privileges or Immunities Clause was wrong.¹¹⁷

The reasoning in Slaughter-House was “exceptionally weak.”¹¹⁸ The reasons for the narrow construction were (1) a bald, results-based conclusion and (2) an absurd reading that ignores text and legislative history.

A Bald, Results-Based Conclusion

Beginning with the bald conclusion, the Court stated, “There can be little question that the purpose of both [Article IV’s Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause] is the same, and that the privileges and immunities intended are the same in each.”¹¹⁹ In clear language, the Court admitted its result-oriented construction was “not always the most conclusive” argument.¹²⁰ Nevertheless, the Court made its choice out of fear of a theory that “radically change[d]” the relationship between state and federal governments and about concerns that the Court would become a “perpetual censor” over state legislatures.¹²¹ The Court’s reasoning depended on avoiding a purportedly undesirable outcome, but that feared result has already been achieved.¹²² The reasoning undergirding Slaughter-House’s results-based conclusion has crumbled as substantive due process has grown.¹²³

To overcome its concerns about a radical change to the constitutional order, the Court asked for “language which expresse[d] such a purpose too clearly to admit of doubt.”¹²⁴ The Court adopted something akin to a beyond-reasonable-doubt standard for interpretation that had no basis in constitutional interpretation. The total concoction of a novel standard for constitutional interpretation is further evidence of an egregiously wrong opinion.

An Absurd Reading That Ignores Text and Legislative History

In the majority opinion, Justice Miller set forth an anti-textual reading of the Fourteenth Amendment that distinguished between the privileges or immunities of citizens of a state and the privileges or immunities of citizens of the United States.¹²⁵ According to Justice Miller, the privileges and immunities of the citizen of a state “embrace[] nearly every civil right for the establishment and protection of which organized government is instituted.”¹²⁶ Conversely, the privileges and immunities of the citizen of the United States were limited to things like the right to travel to and from the seat of government and access to seaports.¹²⁷ The dichotomy between state citizens’ rights and United States citizens’ rights is difficult to square with Justice Miller’s belief that the purpose and effect of the Fourteenth Amendment should be to protect Black Americans.¹²⁸ The plain language of the Privileges or Immunities Clause seems to desire some nationwide baseline for individual rights. If that baseline was as paltry as Justice Miller suggested, then the enactment truly was “vain and idle.”¹²⁹

Regarding legislative intent, Justice Miller did not believe that a broad Privileges or Immunities Clause was intended. Justice Miller summarily concluded that he was “convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”¹³⁰ Justice Miller failed to conduct even a cursory survey of the legislative history. If he had done so, he would have found that leading Republicans in the Congress that passed the Fourteenth Amendment believed the capacious definition of privileges and immunities was appropriate for the federal government to prevent state infringement of the same.¹³¹ Adding to the case against Justice Miller’s reading of the legislative history is the fact that Representative John Bingham, the Privileges or Immunities Clause’s primary draftsman, stated in a speech in Congress that the purpose of the Clause was to apply the Bill of Rights to the states.¹³² The quality of the Slaughter-House majority’s reasoning was abysmal because it failed to heed the Privileges or Immunities Clause’s plain text or legislative history.

For the above reasons and many more, “[v]irtually no serious modern scholar—left, right, and center—thinks that [the majority’s reading] is a plausible reading of the Amendment.”¹³³ The quality of the majority’s reasoning surpasses an excusable “garden-variety error”¹³⁴ and makes the quality of the reasoning factor weigh strongly in favor of overruling the precedent.

C. The Workability of the Rules Imposed on the Country

The workability factor asks whether the rule “can be understood and applied in a consistent and predictable manner.”¹³⁵ To laud Slaughter-House for creating a workable rule would be a mistake. The opinion created a bright-line rule that refused to incorporate any provision of the Bill of Rights.¹³⁶ This rule is easy for lower courts to apply in the same way that the following absurd, bright-line interpretation would be easy to apply: Suppose the Court held that “Speech” in the First Amendment¹³⁷ context must be construed in the same manner as “Speech” described in Article I’s Speech and Debate Clause.¹³⁸ That construction would be easy for lower courts to apply due to the narrow circumstances in which Speech and Debate Clause issues arise. However, workability through absurdity should not suffice.¹³⁹

D. The Disruptive Effect on Other Areas of Law

A precedent that has distorted other legal doctrines is more suitable for overruling.¹⁴⁰ Although achieving substantially similar results, the closing off of incorporation via the Privileges or Immunities Clause caused jurists who did not want to overrule Slaughter-House to distort the Fourteenth Amendment’s Due Process Clause in order to incorporate the Bill of Rights against the states.¹⁴¹ Due Process Clause distortion caused two nasty ailments.

First, the incrementalist incorporation route required Justices to inquire whether a provision of the Bill of Rights was “fundamental to our scheme of ordered liberty” with “dee[p] root[s] in [our] history and tradition.”¹⁴² Part of the rationale for Constitution-related precedent being weaker is the high bar for amending the Constitution.¹⁴³ When a provision of the Constitution enumerates a right, it is self-evident that a great majority of American voters considered the provision sufficiently fundamental to make it part of the nation’s foundational legal document. Judicial inquiry into whether a provision is important enough to be elevated to fundamental status is improper. The entire Bill of Rights is fundamental to liberty. The Anti-Federalists who pressed for a bill of rights in the Constitution did so partly because they believed some liberties were so fundamental that their inclusion in the nation’s founding document was necessary.¹⁴⁴

Second, the absorption of unenumerated-rights analysis into substantive due process¹⁴⁵ let the Ninth Amendment wither on the vine. Justices rarely refer to the Amendment. In Griswold v. Connecticut, Justice Goldberg penned a concurrence that examined the Ninth Amendment at length.¹⁴⁶ But aside from this single concurrence and occasional fleeting references,¹⁴⁷ the Court has ignored a provision of the Constitution that is no less deserving of interpretation and application than any other.¹⁴⁸ The absence of the Ninth Amendment in the Court’s unenumerated-rights jurisprudence is a consequence of the growth of substantive due process and neglect of the Privileges or Immunities Clause.¹⁴⁹

In sum, Slaughter-House has had the disruptive effect of implicitly disparaging some provisions of the Bill of Rights as nonfundamental while stunting the growth of Ninth Amendment jurisprudence. Those two consequences have damaged the Constitution and counsel in favor of overruling Slaughter-House.

E. Developments Since the Case Was Decided

A precedent is significantly weakened when the grounds for the decision have been “eroded” by the Court’s subsequent decisions.¹⁵⁰ A crucial aspect of the reasoning in Slaughter-House was its result-oriented approach that did not want incorporation to transform the Constitution into a “perpetual censor”¹⁵¹ of state legislatures.¹⁵² However, the majority’s fear has already been realized due to substantive due process’s subsequent metastasis. The vast majority of the Bill of Rights is already incorporated against the states.¹⁵³ At the 2018 oral argument for Timbs, Justice Gorsuch and Justice Kavanaugh were incredulous that Indiana’s solicitor general was contesting incorporation of any part of the Bill of Rights.¹⁵⁴ The subsequent legal developments of near-total incorporation have obliterated the result-oriented reasoning that grounded the Slaughter-House majority opinion. The ensuing legal developments counsel strongly in favor of overruling Slaughter-House.

F. The Absence of Concrete Reliance

People have concrete reliance on the rights that substantive due process preserves, but this reliance is separate from reliance on the procedural mechanism itself. Their reliance would only be concrete if abrogating substantive due process would also mean that the Bill of Rights was not incorporated against the states. Adoption of the PI + 9 Framework would avoid such issues.

The primary concrete reliance interests that would be upset by Slaughter-House being overruled would be those that rely on the unincorporated parts of the Bill of Rights remaining unincorporated. Today, the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment are the only enumerated rights that remain unincorporated.¹⁵⁵

The Third and Seventh Amendment present inconsequential reliance interests. The Third Amendment’s incorporation would be the least substantial because situations that lead to Third Amendment litigation are exceedingly rare.¹⁵⁶ Similarly, the Seventh Amendment’s incorporation would change little. Only three states lack a right to a civil jury trial in their state constitutions: Colorado, Louisiana, and Wyoming.¹⁵⁷ However, the right to a civil jury trial can be found elsewhere in those three states. The rules of civil procedure for Colorado,¹⁵⁸ Louisiana,¹⁵⁹ and Wyoming¹⁶⁰ allow a party to demand a jury trial. Accordingly, incorporating the Third and Seventh Amendment would change little for states or private parties.

Incorporating the Fifth Amendment’s Grand Jury Clause presents the greatest reliance-interest issues of the amendments that prescribe enumerated rights. States without a grand jury requirement have reliance interests in preserving the finality of criminal judgments and avoiding the costs associated with implementing an institution for criminal prosecutions—the grand jury.¹⁶¹

The finality of criminal judgments in state courts would likely remain intact despite incorporation of the Grand Jury Clause. In Edwards v. Vannoy, the Supreme Court refused to retroactively apply the Ramos jury-unanimity rule on federal collateral review.¹⁶² Given the refusal in Edwards to retroactively apply the unanimous jury verdict requirement from Ramos on federal collateral review,¹⁶³ it seems unlikely that the Court would rule differently if the Grand Jury Clause were incorporated. To apply the requirement retroactively, the Court would need to apply a rare exception that it described as “moribund” in 2021.¹⁶⁴

A state’s reliance interest in avoiding the costs associated with grand juries is the most significant reliance interest jeopardized by total incorporation of the Bill of Rights. However, reliance-interests analysis usually concerns the costs borne by private parties, not the government.¹⁶⁵ All but two states, Pennsylvania and Connecticut, still have grand jury indictment as part of their criminal procedure scheme—even if twenty-eight states do not require a grand jury indictment.¹⁶⁶ The familiarity with the grand jury as an institution and the existence of the institution in all but two states limit the extent to which incorporating the Grand Jury Clause would upset reliance interests. Moreover, the Court has repeatedly incorporated procedural protections against states despite the attendant costs.¹⁶⁷ Such decisions evince a belief in the relative unimportance of a state’s reliance interest in maintaining criminal laws and procedures that are inconsistent with the Constitution. As Justice Gorsuch wrote in Ramos, the most essential reliance interests are “the reliance interests of the American people.”¹⁶⁸ Given the relatively meager reliance interests that would be affected by overruling Slaughter-House, the reliance interests factor weighs only slightly against overruling the precedent.

Weighing the stare decisis factors as a whole in a manner consistent with the Court’s recent application of those factors, Slaughter-House should be overruled. Accordingly, the Fourteenth Amendment’s Privileges or Immunities Clause should incorporate every right in the Bill of Rights against the states.

IV. SUBSTANTIVE DUE PROCESS MUST END

Substantive due process is a doctrine with severe flaws. As will be explained below, the doctrine cannot justify itself with anything but a result-oriented conclusion. However, even that justification is unsatisfying because substantive due process is not the best means to protect individual liberties against state infringement—the Privileges or Immunities Clause is. The result is a disjointed Fourteenth Amendment and an ineffectual Ninth Amendment.

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause seems, on its text’s face,¹⁶⁹ to be an inapt mechanism to incorporate the Bill of Rights against the states. After all, the Due Process Clause describes process, not substance.¹⁷⁰ Over the years, several Supreme Court Justices have recognized the contradiction in terms for the folly that it is.¹⁷¹ Other Supreme Court Justices have employed substantive due process without defending the mechanism itself.¹⁷² Stranger yet, however, is when Justices who have openly expressed their distaste for substantive due process have nonetheless approved its use in applying the Bill of Rights to the states.¹⁷³

Despite substantive due process’s status as the favored means to incorporate the Bill of Rights against the states, the method has failed to justify itself by any means other than a result-oriented approach. This approach would be more understandable if a more apt provision of the Constitution could not accomplish the same objectives. The Privileges or Immunities Clause can achieve those objectives and would do so with greater force, clarity, and efficiency.

Furthermore, revitalizing the Privileges or Immunities Clause while curtailing substantive due process would harmonize the Fourteenth Amendment’s Due Process Clause, Equal Protection Clause, and Privileges or Immunities Clause. The Due Process Clause would consider only “procedural fairness.”¹⁷⁴ The Equal Protection Clause would address equality alone.¹⁷⁵ The Privileges or Immunities Clause would set a baseline of substantive rights that no state may abridge.¹⁷⁶ The failure to harmonize the three above-mentioned Fourteenth Amendment clauses puts rights on weaker footing.

B. Substantive Due Process Shortchanges the Ninth Amendment

Any construction that renders a constitutional provision superfluous is “inadmissible, unless the words require it.”¹⁷⁷ Chief Justice Marshall’s proscription against superfluous constructions was farsighted, and its logic extends to the wounds substantive due process has inflicted on the Ninth Amendment. The established doctrine the Court employs to evaluate whether the Constitution protects an unenumerated right is substantive due process.¹⁷⁸ The repeated¹⁷⁹ resort to the Due Process Clause to achieve purposes for which it was never intended,¹⁸⁰ and to which it is ill-suited, shortchanges the Ninth Amendment and renders it superfluous.¹⁸¹ Furthermore, to render the Ninth Amendment superfluous does more than flout one of Chief Justice Marshall’s memorable axioms. The failure to ground unenumerated-rights jurisprudence in the constitutional provision most suited to that purpose puts jealously guarded individual liberties at risk.

The Ninth Amendment offers the protection that unenumerated rights deserve. Regarding one such precious unenumerated right, Chief Justice Warren wrote for a unanimous Court that, “[u]nder our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”¹⁸² The right to interracial marriage is one of many precious unenumerated rights that deserves better protection than what a procedural clause can offer. The Ninth Amendment can secure those rights better than substantive due process. Any defense of substantive due process to defend an unenumerated right disserves the very rights the doctrine purports to protect. Substantive due process must be abrogated so that Ninth Amendment jurisprudence can become the sentinel of unenumerated rights.

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

The biggest challenge to adopting an expansive construction of the Privileges or Immunities Clause may be getting Justices to agree on a test for whether the Constitution protects a particular unenumerated right. Fortunately, there is a consensus about protecting some unenumerated rights.¹⁸³ This Part argues that the Ninth Amendment should protect unenumerated rights and considers which test is appropriate for accomplishing that objective.

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

The Dobbs v. Jackson Women’s Health Organization majority was quick to emphasize that its elimination of an unenumerated constitutional right to abortion should not “be understood to cast doubt on precedents that do not concern abortion.”¹⁸⁴ In his concurring opinion in Dobbs, Justice Kavanaugh expressed support for Supreme Court precedents concerning marriage and contraception.¹⁸⁵ The Dobbs dissenters believed that it was not possible to decouple the precedents concerning marriage and contraception from the precedents concerning abortion.¹⁸⁶ The fact that both sides agreed in Dobbs that at least some unenumerated rights were protected by the Fourteenth Amendment’s Due Process Clause is some evidence of the broad support for constitutional recognition of some unenumerated rights.

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

The Ninth Amendment shares at least two things in common with the Privileges or Immunities Clause. First, both have been mostly read out of the Constitution.¹⁸⁷ Second, substantive due process has haphazardly achieved some of each’s overarching goals.¹⁸⁸

There is a broad consensus that the Constitution protects some unenumerated rights.¹⁸⁹ And if the Constitution protects unenumerated rights, those rights ought to be safeguarded by a framework sturdier than the flimsy, contradictory substantive due process approach. Substantive due process’s embrace of unenumerated-rights jurisprudence would be more understandable if no part of the Constitution dealt explicitly with the issue of unenumerated rights. Fortunately, this is not the case. A provision that discusses unenumerated rights exists, and that provision is the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”¹⁹⁰

The decision to craft a jurisprudence about unenumerated substantive rights in a procedural clause is confounding in light of the Ninth Amendment. The Supreme Court has traditionally declined to hold that the Ninth Amendment is the source of substantive rights.¹⁹¹ Indeed, the Ninth Amendment does not specify which rights were retained by the people. The only body with the power and qualifications necessary to decide which rights are retained by the people is the federal judiciary. The “province and duty of the judicial department to say what the law is”¹⁹² extends to expounding and interpreting which rights are “retained by the people”¹⁹³ under the Ninth Amendment.

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Supreme Court must choose a proper, workable rule of law for lower courts to apply when deciding Ninth Amendment cases if the Court were to adopt the PI + 9 Framework. The Ninth Amendment seems so open to interpretation that it could create Pandora’s box concerns that may produce workability problems.¹⁹⁴ Indeed, the Court has recently cited unworkability in both constitutional¹⁹⁵ and statutory¹⁹⁶ cases as a key reason for overruling precedents. However, substantive due process raises the same Pandora’s box predicaments,¹⁹⁷ yet the Court has had little trouble applying substantive due process in recent years.¹⁹⁸ Indeed, when the Court overruled Roe and Casey, the Court insisted on being guided by “history and tradition” in order to avoid the “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”¹⁹⁹

However, if the Court were to hand down a landmark Ninth Amendment decision, it would have ultimate authority to say what the law is and could choose any test it desired. The Court ought not to be frozen by a fear of political backlash or public outcry when deciding the cases and controversies that it has the power to decide under Article III.²⁰⁰ In 2022, the Court acknowledged the importance of deciding cases based on principles, “not social and political pressures.”²⁰¹ A wise Justice once said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.”²⁰² The Court ought to trust itself enough to exercise the power vested in it by the Constitution to interpret and construe the Ninth Amendment. Several options abound—ranging from ignoring the Ninth Amendment to presuming liberty—for the Court if it adopts the PI + 9 Framework.

The Ink Blot Approach: Disregarding the Ninth Amendment

Judge Robert H. Bork infamously compared the Ninth Amendment to an “ink blot” that the Court should not interpret.²⁰³ Judge Bork’s conception should be rejected because it underestimates the judiciary’s abilities, ignores history, and is impractical.

Judge Bork’s interpretation should be rejected because it ignores a provision of the Constitution due to its potential for being difficult to interpret. Judge Bork underestimated the Court. The “task of translating the majestic generalities of the Bill of Rights” is daunting.²⁰⁴ However, this task is the province and duty of the judges who comprise the federal judiciary.²⁰⁵ There is no exception to this province and duty in cases that raise complex and profound questions.

Furthermore, Judge Bork’s conception is not historically defensible from any conceivable originalist perspective.²⁰⁶ For Anti-Federalists, enumerating any rights was dangerous because doing so could be construed to imply the nonexistence of other rights.²⁰⁷ James Madison acknowledged this criticism when he defended the Constitution’s ratification and offered a provision, which became the Ninth Amendment, that expressly guaranteed protection for unenumerated rights.²⁰⁸ Although Ninth Amendment scholars have come to vastly different conclusions—from natural-rights readings²⁰⁹ to readings emphasizing control for local governance²¹⁰—it appears there was more underneath the ink blot than Judge Bork thought.

Finally, Judge Bork’s conception is impractical. Some unenumerated-rights protections, including those for contraception and same-sex marriage, enjoy support from Justices across the ideological spectrum. The differences are in degree, not kind. For example, the Dobbs majority opinion, a concurring opinion, and the joint dissenting opinion all claimed to stand for unenumerated rights other than abortion.²¹¹ The idea of stripping all unenumerated rights of constitutional protection is simply unthinkable. For example, the right to interracial marriage is unenumerated.²¹² However, any prominent person who suggests that it is not a right protected by the Constitution is instantly and vociferously rebuked.²¹³ Aside from its indefensibility as a matter of history and principle, the idea that all unenumerated rights would be summarily stripped of constitutional protection is beyond the realm of realistic possibilities.

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Randy E. Barnett has written extensively on the Ninth Amendment²¹⁴ and has his own grand Ninth Amendment theory. Under Barnett’s theory of unenumerated rights, one could first conduct an originalist analysis to determine which unenumerated rights get constitutional recognition.²¹⁵ However, Barnett conceded that originalist materials would be insufficient to recognize all the rights worthy of Ninth Amendment protection, so the sphere of unenumerated rights would be even more expansive than originalism could contemplate.²¹⁶ Barnett advocated a framework that presumes liberty for unenumerated rights.²¹⁷ Presuming liberty would place the burden on the government to establish why any government infringement on individual freedom is both necessary and proper, rather than assuming constitutionality when possible.²¹⁸ In determining when liberty should be presumed, Barnett’s dividing line is a rightful/wrongful conduct distinction.²¹⁹

Barnett’s contributions to Ninth Amendment scholarship are admirable, but his solutions are quixotic. First, to presume liberty would be to undo fundamental canons of construction. Established canons of constitutional construction dating back to the early nineteenth century demand that “[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to [a statute] which should involve a violation, however unintentional, of the constitution.”²²⁰ To reverse the paradigm to one in which the federal judiciary seeks to strike down laws that touch so-called “rightful activity”²²¹ would be catastrophic. The current Court’s desire to take more issues out of constitutional law and insert them into the democratic process is at odds with Barnett’s framework.²²²

Aside from the current Court’s probable unwillingness to adopt the kind of radical shift that Barnett supports, workability concerns are sufficient to reject Barnett’s framework. In recent years, the Court expressed frustration with unworkable rules of law and overruled precedents on that basis.²²³ The idea that the Court would adopt a rightful/wrongful conduct test for trial and appellate courts to apply to every piece of legislation is fantasy.

To be sure, Barnett’s theory is far from the only Ninth Amendment framework. Many theories abound.²²⁴ For example, Kurt T. Lash’s theory considers the Ninth Amendment through a federalism prism that emphasizes retained powers in addition to retained rights.²²⁵ In any event, Barnett’s presumption-of-liberty theory represents the opposite of Judge Bork’s ink-blot theory. Between Barnett’s Ninth Amendment maximalism and Judge Bork’s Ninth Amendment ignorance lie too many possibilities to ponder in this Note.

An ideal rule for the Court to adopt in inaugurating its Ninth Amendment jurisprudence would be one that is workable, in line with current precedents, and moored by “respect for the teachings of history.”²²⁶ A workable rule of law would promote consistency and predictability to a constitutional provision that many may fear due to its unpredictability.²²⁷ A rule of law in line with current precedents regarding unenumerated rights would prevent the instability that a brand-new rule might invite. A rule of law grounded in respect for history and tradition would avoid the open-ended judicial activism of the Lochner era.²²⁸

Glucksberg’s Goldilocks Test

Fortunately, there is an established test that is workable and guided by history. Further, this test is more than merely consistent with current precedents—it is current precedent.

The Court adopted a sensible unenumerated-rights framework in Washington v. Glucksberg.²²⁹ The framework requires a “careful description” of the asserted liberty interest.²³⁰ The careful description provides a buffer against broad assertions of a liberty interest that could mean anything and everything. Additionally, adopting an approach that describes a liberty interest rather than a retained right²³¹ is appropriate because liberty and right have been used interchangeably since the American Revolution.²³² Then, there is a two-pronged test for deciding whether the Due Process Clause protects a right, and this framework applies to evaluating unenumerated rights.

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”²³³

The above framework gets at the heart of the Ninth Amendment, even though it brands itself as a Due Process Clause analysis. The language about a right needing to be “objectively, deeply rooted in this Nation’s history and tradition”²³⁴ is appropriate for evaluating which rights have been “retained by the people.”²³⁵ For a right to be retained, the right could not have recently come into existence—thus the deeply rooted phrasing. This approach shows proper respect for history’s teachings, prefers judicial restraint and caution,²³⁶ and averts the unrestrained judicial activism of the Lochner era.²³⁷ The history-and-tradition prong also ensures that the Ninth Amendment would preserve an existing right. Any analysis that claims the Ninth Amendment is not the source of substantive rights²³⁸ is telling a lawyerly half-truth. The nation’s history and tradition are the source of the rights retained by the people in the Ninth Amendment.

The Glucksberg test also scores high in workability when lower courts have applied the test to purported unenumerated rights in various contexts.²³⁹ For example, not long after the Court decided Glucksberg, the Fourth Circuit Court of Appeals applied the two-pronged test to reject a petitioner’s asserted unenumerated right to be free from unjust or arbitrary incarceration.²⁴⁰ In another case, the Eighth Circuit Court of Appeals had no difficulty applying Glucksberg to uphold an Iowa statute limiting where sex offenders could reside.²⁴¹ In 2024, a federal district court judge in Murphey v. United States had little issue applying Glucksberg’s two-pronged test to reject a plaintiff’s asserted right to grow, possess, and use psychedelic and other drugs.²⁴² Additionally, in the district court’s application of the test in Murphey, the court looked to Supreme Court decisions that counseled against recognizing additional rights because “guideposts for responsible decisionmaking in this unchartered area [were] scarce and open-ended.”²⁴³ Lower courts have proven Glucksberg to be workable.

The second prong allows judges to ensure that sordid practices do not get constitutional protection merely for existing long enough to be deeply rooted in the nation’s history and tradition. As Justice Stevens observed in Bowers v. Hardwick, “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”²⁴⁴ However, the right to interracial marriage is beyond doubt implicit in the concept of ordered liberty.²⁴⁵ Moreover, there may be “room for play in the joints”²⁴⁶ between the first prong and second prong.²⁴⁷ The first prong may act as a nonabsolute constraint on the second prong. Regarding the relationship between the prongs, Justice Kennedy wrote, “History and tradition guide and discipline [the second prong] but do not set its outer boundaries.”²⁴⁸

To be sure, the second prong requires courts to “exercise reasoned judgment.”²⁴⁹ But the exercise of reasoned judgment is inherent to the judicial power. It is “emphatically the province and duty of the judicial department to say what the law is.”²⁵⁰ Neither political branch has the power to identify constitutional rights.²⁵¹ Thus, the proper body for identifying rights in the context of the Ninth Amendment is the judicial branch.²⁵² Through its substantive-due-process jurisprudence, the Court has already

recognized a number of unenumerated rights deemed to be fundamental.²⁵³ If it continues to do so, it ought to do so through the proper means: the Ninth Amendment. Doing so gives unenumerated rights a place in law that is more secure than substantive due process.

VI. THE FRAMEWORK APPLIED

The PI + 9 Framework would apply amendments one through nine to the states through the Privileges or Immunities Clause and conduct its unenumerated-rights inquiry under the Ninth Amendment by using the two-pronged Glucksberg test. Figure 1 shows how amendments one through nine would apply to state governments under the PI + 9 Framework.

Figure 1. The PI + 9 Framework

A. The Framework for Enumerated Rights

The PI + 9 framework has the benefit of simplicity, especially as the framework applies to enumerated constitutional rights, such as the right to bear arms.²⁵⁴ Under the PI + 9 Framework, the Second Amendment would apply to the states via the Privileges or Immunities Clause. There would be no need to consider whether the Second Amendment is implicit in the concept of ordered liberty because it would automatically be incorporated via the Privileges or Immunities Clause. A judge would only consider whether the state law violates the Second Amendment, which would get to the heart of the issue more quickly than a gratuitous rehashing about the wisdom or foolishness of substantive due process. Under the PI + 9 Framework, the state law would be analyzed in accordance with pertinent Second Amendment precedents, such as New York State Rifle & Pistol Association v. Bruen²⁵⁵ and District of Columbia v. Heller.²⁵⁶

In any opinion concerning a state law’s alleged abridgment of the Second Amendment, the Court would quickly state what is clear from the text, legislative history, and original intent,²⁵⁷ which is that the Privileges or Immunities Clause applies every right in the Bill of Rights to the states. Then, the Court would decide whether the state law at issue violates the Second Amendment. In the Second Amendment context, the prevailing test remains the test from Bruen.²⁵⁸ Any difficulties arising from applying Bruen²⁵⁹ could be hashed out purely within the confines of the Second Amendment. Full incorporation takes distracting debates about substantive due process off the table and decreases judicial discretion as it relates to incorporation. The focus would be more on the right itself rather than the procedure by which the right in question is incorporated.

PI + 9 Applied to a Hypothetical About an Enumerated Right

Assume the following hypothetical factual scenario:

After increasing pressure from the public, Iowa enacts Statute One,²⁶⁰ which criminalizes the “carrying, transportation, or possession of any firearm on the grounds of any public school in the state of Iowa.” After Statute One’s enactment, Tina attends a parent-teacher conference at a public school in Marion, Iowa, with a loaded Glock 17 pistol in a holster on her hip. After seeing the holstered pistol, a student at the school calls the police, and the police arrive at the school and arrest Tina. Tina is charged with violating Statute One, and a jury convicts her in Linn County District Court. The Iowa Court of Appeals affirms the conviction. Tina petitions for a writ of certiorari to the Supreme Court of the United States, challenging her conviction and alleging that Statute One violates the Second Amendment to the United States Constitution. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would state that the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶¹ No inquiry would occur into whether the Second Amendment right is deeply rooted or implicit in the concept of ordered liberty. Once incorporated, the Second Amendment would operate “identically to both the Federal Government and the States.”²⁶² Given that, the Court would apply the pertinent Second Amendment precedents.

The Court would apply Bruen’s inquiry and make the government “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”²⁶³ Here, the Court could look to a precedent like Heller, which held that forbidding firearms in “sensitive places such as schools” was permissible and consistent with historical restrictions.²⁶⁴ The Court could also conduct a historical analysis to confirm or reject the view set forth in Heller about the presumptively lawful nature of prohibitions against guns in schools.²⁶⁵ Under the hypothetical set of facts, the Privileges or Immunities Clause would mandate that the Second Amendment be applied to the Iowa government. The Supreme Court’s precedents on the Second Amendment would control, and the petitioner’s conviction would likely be upheld.

The Framework for Unenumerated Rights

The PI + 9 Framework for unenumerated rights requires just a few more steps than the PI + 9 Framework for enumerated rights. First, the Court would incorporate the Ninth Amendment against the states via the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶⁶ Then, the Court would carefully describe the liberty interest at stake in accordance with Glucksberg’s “careful description” mandate.²⁶⁷ After formulating a careful description of the asserted unenumerated right at issue, the Court would analyze under the Ninth Amendment²⁶⁸ whether (1) the right is “deeply rooted in this Nation’s history and tradition”;²⁶⁹ and (2) whether the right is “implicit in the concept of ordered liberty.”²⁷⁰ If the Court answered yes to those two questions, the Ninth Amendment would protect the right from infringement by the federal government and state governments.

PI + 9 Applied to a Hypothetical About an Unenumerated Right

Assume the following hypothetical factual scenario:

After a public campaign against homeschooling, California enacts Statute Two, which mandates, “No parent may homeschool their child, and all children must attend an accredited private or public school. Parents who violate this statute are guilty of a felony.” Tom is a parent in Los Angeles, California who homeschools his son. After Statute Two’s enactment, Tom continues homeschooling his child because he believes he can provide a better education for his son than any nearby public or private school. After a neighbor reports Tom to the police for homeschooling, Tom is arrested and charged with violating Statute Two. Tom is convicted of violating Statute Two in the Los Angeles County Superior Court and appeals to the California Second District Court of Appeal, which affirms his sentence. Tom petitions for a writ of certiorari to the Supreme Court of the United States, challenging his conviction and alleging a violation of his Ninth Amendment right to homeschool his child. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would first note that the right at issue here is not enumerated in the Constitution. Thus, a Ninth Amendment inquiry is apt. The Court would quickly explain that the Privileges or Immunities Clause applies the Ninth Amendment to the states. Then, the Court would carefully describe the right at issue in the instant case, which is the right to homeschool one’s child. After carefully describing the right, the Court would answer each Glucksberg prong: (1) whether the right is deeply rooted in the nation’s history and tradition; and (2) whether the right is implicit in the concept of ordered liberty.

Under the first prong, the Court would be free to conduct an independent historical analysis. Homeschooling in America predates the American Revolution.²⁷¹ Many colonies passed laws in the seventeenth century that required parents to educate their children.²⁷² Colonial fathers were expected to teach their children reading and religion.²⁷³ Abigail Adams homeschooled her children, and the Adams family was not unique among New Englanders in this respect.²⁷⁴ Before the Civil War, enslaved people used home education as a means to defy racist anti-literacy laws.²⁷⁵ Today, homeschooling is legal in all fifty states,²⁷⁶ except for the fictitious California in the hypothetical.

Additionally, early-twentieth-century Supreme Court cases decided issues related to the right of parents to make decisions about their child’s education. If the Court decided that the early twentieth century was early enough to inform the history-and-tradition inquiry, the Court could cite Pierce v. Society of Sisters²⁷⁷ and reaffirm Pierce’s proposition that parents have a right “to direct the upbringing and education of children under their control.”²⁷⁸ The Court could also rely on Meyer v. Nebraska, which held that “[c]orresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”²⁷⁹ The cases recognizing a right of parents to control the upbringing of their children are more than one hundred years old. Those cases, in addition to historical evidence, buttress the proposition that the right to homeschool one’s children is deeply rooted. The Court would answer (1) in the affirmative and move on to answering whether the right to homeschool one’s children is implicit in the concept of ordered liberty.

The Court would likely also answer (2) in the affirmative and hold that the right to homeschool one’s child is implicit in the concept of ordered liberty. In Meyer, the Court held that the right to “establish a home and bring up children” was protected by the Constitution.²⁸⁰ Additionally, the right to homeschool one’s child could be drawn within the sphere of “related rights of childrearing, procreation, and education” that the Court has recognized.²⁸¹ Under sufficiently analogous precedents and the exercise of reasoned judgment, the Court would hold that the right to homeschool one’s children is implicit in the concept of ordered liberty. After carefully describing the right at issue and satisfying Glucksberg’s two prongs, the Court would hold that the Ninth Amendment protects the right to homeschool one’s children and would void Statute Two.

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

The PI + 9 Framework has three main advantages: (1) it provides a stronger mechanism for protecting individual rights; (2) it is a more efficient, clear, and appropriate means by which to incorporate the Bill of Rights; and (3) it could lead to the development of Ninth Amendment jurisprudence.

A. Putting Individual Rights on Stronger Footing

The primary advantage of the PI + 9 Framework is that it puts the precious civil liberties enshrined in the Constitution on stronger footing. Every single right recognized by substantive due process is always somewhat in doubt because of the dubious, wobbly nature of the doctrine. Why risk it? Those alarmed by Justice Thomas’s concurrence in Dobbs,²⁸² which suggested that all substantive due process precedents ought to be reconsidered, have nobody to blame but themselves if they previously championed a flawed doctrine like substantive due process. Individual substantive rights are too important to leave behind the unlocked door of a process-related clause. The PI + 9 Framework gives substantive rights the defense they deserve by providing power to the text, history, and intent of the Privileges or Immunities Clause.

B. Efficiency, Clarity, and Respect for the People’s Amendments

The PI + 9 Framework offers a better approach to incorporation than substantive due process. Glucksberg’s application to enumerated rights is inappropriate, inefficient, and unclear. It is inappropriate because a judge should not answer whether an amendment to the Constitution is sufficiently important to qualify as a sort of “super right” to be incorporated against the states. Each provision of the Bill of Rights was important enough for two-thirds of Congress and three-fourths of the states²⁸³ to add the provision to the nation’s founding document. Furthermore, it is inefficient because it requires a two-pronged analysis for provisions that were clearly fundamental enough to liberty to be included in the Constitution and are part of the nation’s history and tradition since 1791. Finally, there is a lack of clarity as to why some amendments in the Bill of Rights are more vital to liberty than others. As Justice Thomas wrote in McDonald, a Privileges or Immunities Clause analysis is “far more likely to yield discernible answers” than substantive due process.²⁸⁴ If the Court were to adopt the PI + 9 Framework, there would be no more ink spilled or time wasted defending substantive due process. The Court could instead get to the business of interpreting what each provision of the Bill of Rights means and how it ought to be construed and applied to the facts of a case.

C. Development of Ninth Amendment Jurisprudence

Another benefit of the PI + 9 Framework is the development of Ninth Amendment jurisprudence. In carrying out its duty to “say what the law is,”²⁸⁵ the judicial branch ought to tell the American people what the Ninth Amendment means. Scholars may argue about the proper interpretation and construction of the Ninth Amendment, and this Note advocates Glucksberg’s two-pronged approach. Such words are wind. Only the judiciary can give meaning to the Constitution’s text. Perhaps this will mean freezing the American people’s rights as of 1791 or 1868.²⁸⁶ Perhaps this will mean a presumption of liberty that would drastically curtail the role of government in Americans’ lives.²⁸⁷ Perhaps this will mean adopting Glucksberg’s two-pronged approach. However, the first Court opinion that grounds itself in the Ninth Amendment could give birth to a new age of Ninth Amendment scholarship and jurisprudence aimed at discovering the proper meaning and construction of the Ninth Amendment. Each time the Court is tempted to defer interpretation of the Ninth Amendment and choose the more well-trodden path of substantive due process, the Court instead ought to heed the words of Chief Justice Marshall: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”²⁸⁸

CONCLUSION

The PI + 9 Framework secures rights in a more robust, efficient, and clear manner than substantive due process does. Substantive due process is worse than a mere contradiction in terms. The ever-expanding reach of substantive due process has robbed two provisions of the Constitution—the Privileges or Immunities Clause and the Ninth Amendment—of the importance they deserve. Any stare decisis issues would be more well-founded if most of the Bill of Rights had not already been incorporated. Moreover, the substantive changes that replacing substantive due process with the PI + 9 Framework would cause are the incorporation of the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment, and using the current controlling framework for unenumerated rights. Thus, adopting the Framework would not cause a significant expansion or diminution in substantive rights. Far from an expansion or diminution, the PI + 9 Framework offers enumerated and unenumerated rights the durable, efficient, and clear protection that American privileges and immunities deserve.

99 S. Cal. L. Rev. 359

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Lincoln Son Currie*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.S. 2023, Boston University. I thank my supervisor, Professor Rebecca Brown, for providing me with careful suggestions and guidance as I wrote this Note. I am grateful to the editors of the Southern California Law Review for their diligence in improving this Note. All errors are my own.

Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case

March 2026March 2026Anna Fein*

INTRODUCTION

In 2016, Ben and Hank Brinkmann (the “Brinkmanns”) embarked on a journey of building a hardware store on an empty, commercially zoned lot in the Town of Southold, New York (“the Town”).¹

In 2017 and early 2018, the Brinkmanns met with the Town Planning Department to “create and revise site plan applications” for the hardware store.² At the beginning of 2018, the Brinkmanns filed their first permit application.³ This application contained a site plan, which allegedly underwent two rounds of revisions while implementing the Planning Department’s requests.⁴ The Town denied the permit three months later. The Brinkmanns claimed that the Town informed them that “no site plan had been approved by the Planning Department.”⁵ In May 2018, the Brinkmanns again applied for site plan approval.⁶ In July 2018, the Town allegedly demanded that the Brinkmanns pay for a $30,000 Market and Municipal Impact Study.⁷ According to the Town, such a market study was required because the Brinkmanns wanted to “construct a big box hardware store in a small, semi-rural hamlet on eastern Long Island,”⁸ which was not in the best interest of the Town.

There are two sides to every story, and this is where the stories begin to significantly diverge. For their part, the Brinkmanns allege that the Town never conducted the $30,000 study they paid for, despite being legally required to do so.⁹ Yet the Town asserted that it had “complied procedurally and substantively with New York eminent domain law.”¹⁰

The Brinkmanns argue that the Town chose to acquire their parcel despite the availability of an adjacent undeveloped plot of land, which the Town “never [even] considered acquiring.”¹¹ The Brinkmanns further allege that in October 2018, the Town took even more “drastic measures,” “pressur[ing]” the bank to breach its own “purchase contract [with the Brinkmanns] for the vacant lot” and demanding that the bank enter into a purchase contract with the Town of Southold instead.¹² The Brinkmanns were “[u]ndeterred” by the Town’s intimidation tactics.¹³

In February 2019, the Town enacted a six-month moratorium on new building permits.¹⁴ The Brinkmanns argue that the moratorium was limited to a “one-mile stretch of road,” essentially targeting their lot.¹⁵ The Town claims, however, the six-month moratorium was on “any new building permits along one mile of Route 25, which included the Brinkmanns’ proposed site, among several other businesses.”¹⁶

The Town then twice extended the moratorium—first in August 2019 and then again in July 2020.¹⁷ The Brinkmanns allege that the Town extended the moratorium contrary to Suffolk County’s disapproval and despite lacking any evidentiary support for these moratoriums.¹⁸ The Town also generously gave out moratorium waivers, but not to the Brinkmanns.¹⁹ The Town emphasizes the Brinkmanns never applied for such a waiver in the first place—an application which the Brinkmanns “believed [would be] futile, as the moratorium was clearly target[ing them].”²⁰ In May 2019, the

Brinkmanns sued the Town to end the moratorium.²¹ In June 2020, “[t]he state trial court denied the Town’s motion to dismiss.”²²

In August 2020, the Planning Board “held a public hearing on the proposed project to build a public park” on the Brinkmanns’ lot.²³ In September 2020, the Town issued a “Findings and Determination” in which it concluded that the “acquisition [of the Brinkmanns’ lot would] benefit the public” because a public park would allow “the residents of Mattituck and Southold . . . the opportunity to create . . . [a] community gathering place.”²⁴ In May 2021, the Town “initiat[ed] condemnation proceedings on the [Brinkmanns’ lot].”²⁵ The Brinkmanns note that the Town’s September 2020 announcement of the acquisition of their lot via eminent domain conveniently occurred shortly after the state trial court allowed the Brinkmanns to proceed with their moratorium claim against the Town.²⁶ The Brinkmanns also emphasize that the park the Town decided to build was a passive use park that lacks “any improvements” or facilities.²⁷

Moreover, a September 2020 article published in The Suffolk Times by Southold Town Board Member Sarah Nappa drew attention to the Brinkmanns. In the article, Nappa hints at there being good probability that the Town exercised its eminent domain power because it disliked the Brinkmann family.²⁸ Nappa opined that the Brinkmanns’ fate would have likely been different had they been members of the Town of Southold’s “old boys club,” as opposed to being community “outsider[s].”²⁹

In a 2-1 decision in 2024, the Second Circuit’s Brinkmann majority affirmed the lower court’s ruling in favor of the Town.³⁰ Even though the panel agreed that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use”³¹ and conceded that the Town exercised its eminent domain power only after the failure of its various “regulatory hurdles,”³² the Brinkmanns still lost. So, what went wrong for the Brinkmanns?

Apart from examining the Brinkmann majority’s reasoning to answer this question, this Note proposes a heightened scrutiny analysis for bad-faith takings via the tripartite burden-shifting framework. Although this evidentiary framework was put forth in McDonnell Douglas Corporation v. Green,³³ an employment discrimination case, the application of the framework has not stopped there. The framework has also been applied by Daniel B. Kelly in the context of takings driven by “impermissible favoritism”: when a “favored private entit[y]” or person has a “benefit[]” conferred on them, “with only incidental . . . public benefits.”³⁴

What happened to the Brinkmanns, however, is arguably the exact opposite of favoritism. Thus, this Note extrapolates the tripartite burden-shifting framework to takings arising out of disfavor, from reasons ranging from discrimination and animosity to outright bias. Such an inquiry has largely gone unexplored due to the common assumptions that (1) strict deference to the legislature should somehow justify or excuse bad-faith takings or (2) the Equal Protection Clause is sufficient to address discriminatory takings. This Note will address both of these arguments and also illustrate what is at stake if bad-faith takings continue to slip consequence-free through the cracks of American jurisprudence.

Section I briefly provides an overview of takings in general, largely focusing on the history of the rapid expansion of “public use.” Section II explores Brinkmann’s reasoning, highlighting its many legal conclusions, each of which exhibits flaws. Section III focuses on the Ninth and Seventh Circuits to discuss the federal circuit split. Finally, Section IV examines the tension between rational basis review and some unspecified form of heightened scrutiny proposed by Justice Kennedy’s concurrence in Kelo v. City of New London.³⁵ Section IV then uses Justice Kennedy’s heightened scrutiny suggestion as an entry point to examining the tripartite burden-shifting framework and its application to takings motivated by discrimination and bias. After extrapolating Kelly’s scholarship to bad-faith takings, Section IV examines the perils of adopting rational basis review instead. Section IV further underscores why the Equal Protection Clause and the doctrine of unconstitutional animus, while attractive solutions at first glance, are actually inadequate to the task in this context. Section IV concludes with an assessment of Brinkmann’s societal impact.

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” This clause applies to the states through the Fourteenth Amendment.³⁶ What the Takings Clause prohibits is governmental takings of private property without just compensation, not takings altogether.

So, what does “public use” encompass? Perhaps the more salient question, though, is what does “public use” exclude? Traditionally, the Takings Clause was used by governmental entities to “condemn and acquire property to be used by the public” in innocent, even useful, ways: for example, “building public roads or providing for utilities infrastructure” like electric transmission lines.³⁷ Most people acknowledged, understood, and even “appreciate[d]” this eminent domain power to condemn private property for conversion into public use, provided there was just compensation.³⁸ Without this inherent power to appropriate land, the public would not have highways, courthouses, post offices, and railroads (the so-called clear instances of public use).³⁹ And without these amenities and structures, society would probably cease to function. The public was relatively content with this interpretation of public use because everyone got their share: all members of the public had access to these public uses and “benefit from the system” that provided the “basics of modern life.”⁴⁰ But then something happened—an expansion of the concept of public use beyond highway-building.

Public use became an “amorphous concept, resistant to precise definition”⁴¹ and—conveniently for the government—began to be defined broadly.⁴² From its humble beginnings as a non-contentious issue, eminent domain erupted into a “hotly contested” area of law.⁴³ In 1908, the Supreme Court held in Hairston v. Danville & Western Railway Company “that it is beyond the legislative power to take . . . the property of one and give it to another for what the court deems private uses,” despite “full compensation.”⁴⁴ This was likely comforting to hear; members of the public probably understood this statement as the Court saying that taking private party A’s property to give it to private party B was off-limits. But then, private corporations began to seek the “power to condemn property for their own objectives.”⁴⁵ There had been a shift in takings jurisprudence.

In its 1925 Old Dominion Land Corporation v. United States decision, the Supreme Court emphasized that the legislative branch, as it pertains to public use, is “entitled to deference until it is shown to involve an impossibility.”⁴⁶ But the legislative branch’s limitless power to deem any non-impossible undertaking a public use was hardly the only facet of takings doctrine abused by both private and governmental entities.

In 1954, the Supreme Court decided Berman v. Parker.⁴⁷ In Berman, the Court allowed an administrative agency to take a non-blighted department store and redevelop it “so as to . . . prevent slum . . . housing conditions.”⁴⁸ The department store was also to be transferred to a “private development corporation for the purpose of curing blight.”⁴⁹ Petitioners argued that this would make it a “taking from one business [person] for the benefit of another.”⁵⁰ The Court ruled, however, that the so-called “means” of “executing [a] project are for Congress and Congress alone to determine”⁵¹ and that the “public end may be as well or better served through an agency of private enterprise . . . or so the Congress might conclude.”⁵²

So long as Congress believes that an act of conferring a private benefit from party A to party B “may” or “might” serve the public, such a taking is Berman-blessed. Thus, Berman found constitutional the District of Columbia Redevelopment Act of 1945—which, among other things, authorized sales of “condemned [private] lands to [other] private interests.”⁵³ Under Berman, public use essentially became synonymous with everything under the sun, just as long as the taking was justified by some nominal argument citing “public health, safety, morals, [or] welfare.”⁵⁴ But this Berman reiteration was hardly surprising in the context of Old Dominion. If anything, Berman was a case that truly legitimized hostility to private property owners, reinforcing public use as a broad concept that works to benefit governmental interests. Berman further underscored the irony that “public use” also serves to benefit private corporations that profit from such projects. This Note will return to Berman in Section IV.D to examine its catastrophic fallout.

In 1984, the Supreme Court decided Hawaii Housing Authority v. Midkiff, examining the validity of the Land Reform Act of 1967.⁵⁵ The Act authorized a transfer of titles from lessors to lessees, so as “to reduce the concentration of land ownership.”⁵⁶ This blunt conveyance of private property from party A to party B (a private beneficiary) neither raised concern nor constituted a taking “as having only a private purpose.”⁵⁷ So, although the Midkiff Court acknowledged that there was obviously some type of private purpose here (i.e., person B receiving person A’s private property), the Court emphasized that “[i]t is not essential that the entire community, nor even any considerable portion [of the community], . . . directly enjoy or participate in any improvement in order . . . to constitute a public use.”⁵⁸

Thus, under Midkiff the public use definition was even further expanded; a taking no longer even had to benefit a considerable portion of the community. This begs the question: how many members of the community would need to benefit for a taking to constitute a valid public use? Perhaps zero—if one subscribes totally to Berman-esque legislative deference where Congress might “conclude” that the public may be served in some way via a taking.

A basic overview of takings law cannot be complete without consideration of Kelo v. City of New London, a highly divisive 5-4 decision of the Supreme Court from 2005.⁵⁹ Kelo plays a major role in the Brinkmann decision, the unfortunate North Star of this Note. The Kelo majority authorized the taking of Susette Kelo’s “non-blighted”⁶⁰ little pink house in the name of a “speculative” economic development rationale.⁶¹ The little pink house and several others like it were to be torn down so Pfizer Inc., a private pharmaceutical company, could erect a $300 million research facility in their place.⁶² The New London Development Corporation (“NLDC”) wanted to erect this $300 million Pfizer facility so as to attract new commerce, create jobs, generate tax revenue, and help to “build momentum for the revitalization of downtown New London.”⁶³ This “momentum” also apparently included making New London more “attractive.”⁶⁴

Kelo’s most egregious overstep is that none of these public uses were actually reasonably expected to occur or even had to occur. They were merely alleged, and indeed, were “speculative” because neither Pfizer nor NLDC would be required to use the condemned property “in a way that [actually] bolsters the local economy.”⁶⁵ Viewed differently, not only is the conveyance of private benefit to a private party permissible under Kelo if there is embedded therein some whiff of public use, but this whiff of public use no longer even need be actualized. Instead, it can simply be hypothetical. And this line of criticism tracks with the Kelo majority, who emphasized the sufficiency of NLDC merely “believ[ing]” the development plan would benefit the community.⁶⁶ The Kelo majority further disagreed with Susette Kelo that there needs to be “reasonable certainty” that the “expected public benefit[]” will actually “accrue.”⁶⁷

Where did this absolute faith in what NLDC was alleging come from? One can cite federalism, as did the majority in virtually every federal decision upholding a taking. Sure, the Kelo majority said that the “amount and character of land to be taken” and the “need” for specific land “rests in the discretion of the legislative branch.”⁶⁸ Sure, to negate these consequences of lack of oversight, checks and balances, and even de minimis accountability, states can impose public use requirements that are “stricter than the federal baseline.”⁶⁹ But if states are the only ones who care about not “wash[ing] out” all distinctions between public and private uses, this will lead to a drastic discrepancy.⁷⁰ Justice Sandra Day O’Connor warns that, thanks to the Kelo majority, some states now might as well replace all “Motel 6[s] with . . . Ritz-Carlton[s],” or other little pink houses with shopping malls, or farms with factories, simply because they might revitalize or possibly beautify a city.⁷¹ Justice O’Connor further posits that if the legislative branch is the “sole arbiter[] of the public-private [use] distinction, the Public Use Clause [will] amount to little more than hortatory fluff.”⁷² Judicial checks on interpretation of public use are necessary if the Public Use Clause, as a “constraint on government power[,] is to retain any meaning.”⁷³

Moreover, as Justice O’Connor further points out, the true impact of such radical deference to the legislative branch will, of course, be disparate.⁷⁴ What happens when the government can take “private property currently put to ordinary private use,” such as homes and small family businesses, and “give it over” for new private use—a use that can, but does not have to, “generate some secondary benefit for the public”?⁷⁵ The “beneficiaries” will likely be large entities, development firms, and people with “disproportionate influence and power in the political process” at the expense of those with less resources.⁷⁶

After Kelo was decided, newly discovered evidence revealed that NLDC “blocked” a competitive bidding process for the site to guarantee that Pfizer would get it.⁷⁷ NLDC used eminent domain to “appease” Pfizer.⁷⁸ So much so that the President of NLDC wrote a letter to Pfizer before Pfizer announced its plans, promising to “meet Pfizer’s requirements.”⁷⁹ To this end, NLDC promised to “buy up all the[] properties [in Susette Kelo’s neighborhood], clearing the way for redevelopment in line with Pfizer’s wishes.”⁸⁰ And NLDC ultimately did everything to “entice[] Pfizer to join the project by letting Pfizer dictate the contours of the [redevelopment], including the decision to condemn the properties in [Susette] Kelo’s neighborhood.”⁸¹ None of this was known at trial, and one could certainly speculate that the Kelo decision may have been different had the Kelo Court

known about the driving force behind these vague promises of economic revitalization—or perhaps not.

Although these are seminal cases in takings jurisprudence, they focus solely on the act of conferring a private benefit on another private party through the transference of property rights. They do not discuss takings which are inherently driven by discrimination, racism, homophobia, or animosity toward condemnees. That is, they do not tackle the issue of what happens when a governmental entity simply decides to condemn party A’s property out of hostility toward party A’s family, for instance. Although Brinkmann ostensibly seeks to address this question, the Brinkmann majority relied heavily on Kelo to show that Kelo imposes no requirement that the “government’s stated objective” be “genuine” and free from “pretext for some other, illegitimate purpose.”⁸² Hence the importance of discussing Kelo at length before this Note could delve into an explanation of how the Brinkmann majority likely misinterpreted Kelo. This discussion will take place in Section II(C). Another crucial takeaway from Kelo resides in Justice Kennedy’s concurrence, specifically Justice Kennedy’s reference to the possibility of some unknown form of demanding scrutiny and when it should be invoked.⁸³

II. THE BRINKMANN CASE

The purpose of this Section is to examine some of the Brinkmann majority’s arguments in support of their decision to dismiss the Brinkmanns’ bad-faith takings claim. This Section demonstrates why the Brinkmann majority’s reasoning is, in many ways, flawed and therefore does not support its holding.

A. The Impossible Inquiry That Is (Actually) Possible

According to the Brinkmann majority, looking beyond the Town’s stated purpose behind a taking is an exercise “fraught with conceptual and practical difficulties.”⁸⁴ Such inquiry, holds the Brinkmann majority, is too demanding and would require courts to look into the “subjective motivation of every official who supported the [taking]”; this task is too demanding because motives are “rarely, if ever, pure.”⁸⁵ True, examining the intentions of every single official involved in the condemnation process would indeed be an exercise that is, at best, impracticable. Nonetheless, the logical assumption underpinning the Brinkmann rationale—namely, that scrutiny of every official’s underlying motive is necessary to determine the presence of bad faith—is, to put it mildly, a bit flawed.

But the Brinkmann majority took it a step further: government officials can be outright “hostile,” and the Brinkmann majority would still deem the taking valid as long as there is merely an asserted valid public use.⁸⁶ As openly admitted by the Town, even if the Town condemns homes of “disfavored minorities” purely “out of animus toward those minorities and a desire to drive them out of [Town],” this, too, would constitute a valid taking if the park excuse is presented to disguise that animosity.⁸⁷

By prioritizing judicial efficiency and simple-to-apply bright-line rules over ones that actually protect rights, the legal landscape in the wake of the Brinkmann decision is not merely grimly unfair; it verges on dystopian because bad faith slips through the cracks in the name of judicial efficiency.

Simple-to-apply, bright-line rules are not without their charms, however: they are easy to comprehend, produce consistent results, and are hard to misapply. But what happens when said consistency renders unfair outcomes? What happens when a condemnee has fistfuls of objective evidence that they have been wronged, but the court refuses to even consider any of it because doing so would apparently be too demanding an undertaking?

These simple-to-apply rules produce blatant injustices: as precedent, Brinkmann authorizes courts to deem a taking valid as long as there is any asserted public use, even if the condemnees could prove that the condemnation process was initiated and executed in bad faith.

Critically, none of these examples of conduct tackle the incentives or motives of any official. Instead, they come down to objective evidence. One need not delve into why the town officials enacted a moratorium over the protest of the county planning commission. One need not know why the town officials refused to send the county any evidentiary support concerning the supposed need for a moratorium. Similarly, one need not know the reason why the town never conducted an expensive market study that the condemnees had paid for, thereby expressly violating its own city code.⁸⁸ None of this evidence demands discernment of inscrutable motivations. This impossible inquiry is possible because it need not address the motivations of every official involved.

What is truly egregious in Brinkmann is the objective evidence provided. Hence why the Brinkmann majority had no difficulty in finding that the Town’s taking was pretextual.⁸⁹ The Brinkmann majority reached their conclusion via factual inquiry and managed to parse the evidentiary record. Other courts would similarly have no problem in conducting such inquiries on a routine basis.

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

If the plaintiff fails to provide sufficient evidence of a taking that is a pretext for private purpose or instead animus, dislike, or spite, courts can absolutely reject their claims and have done so in the past. But this ability to screen out plaintiffs who lack sufficient evidence is actually a good thing because it greatly streamlines the judicial process. No case better exemplifies this than Goldstein v. Pataki, a 2008 Second Circuit case that the Brinkmann majority, ironically, cites extensively.⁹⁰ Why ironically? Because Goldstein in no way supports the Brinkmann majority’s position.

Significance of Objective Evidence

The Goldstein plaintiffs claimed that “the [alleged] public uses were pretexts for a private taking” because Mr. Ratner, the owner of the New Jersey Nets and the Project’s primary developer, was the project’s “sole beneficiary,” while all the invoked public uses were mere “pretexts advanced by corrupt . . . state officials.”⁹¹ The plaintiffs did not prevail for various reasons—each of which would likely be sufficiently dispositive when taken individually.

The plaintiffs failed to provide objective evidence of the corruption they alleged, or of any bad faith for that matter. Thus, beyond “far-reaching allegation[s]” the plaintiffs had nothing to offer the court.⁹² The biggest error committed by the Goldstein plaintiffs was that they failed to allege “any specific examples of illegality . . . by which the Project was approved” or any “specific illustration of improper dealings between Mr. Ratner and . . . government officials.”⁹³ Noteworthy here, however, is the fact that the Goldstein court was open to hearing such evidence in the first place. And, unlike the Brinkmann majority, the Goldstein court would not have considered the process of evaluating said evidence to be “fraught with conceptual and practical difficulties.”⁹⁴ Instead, the Goldstein court actively sought such evidence. The Goldstein court wanted the plaintiffs to provide them with evidence of bad faith, so they could actually assess and analyze the bad faith that the plaintiffs alleged. Yet the plaintiffs provided the Goldstein court with essentially nothing beyond “mere suspicion[s].”⁹⁵ It is unsurprising, then, that the Goldstein court dismissed the plaintiffs’ claim.

Further, as emphasized by Judge Menashi, the dissenting judge in Brinkmann, the Goldstein court dismissed the plaintiffs’ claim “not because pretextual takings are permissible” but only because the allegations of pretext lacked specificity.⁹⁶ The Goldstein court’s concern was that a “reasonable juror” would simply not be able to conclude that the asserted laundry list of traditional public uses was mere pretext.⁹⁷ Now, contrast this with Brinkmann: The Brinkmann majority expressly admitted that the Brinkmanns’ “complaint . . . allege[d] facts sufficient to support a finding that the decision to create the park was a pretext.” Thus, evidence of pretext was definitely not lacking in Brinkmann.⁹⁸

Possibility of Closer Objective Scrutiny

The Goldstein court also stated that they wished to “preserv[e] the possibility that a fact pattern may one day arise in which the circumstances” would so align that “a closer objective scrutiny” would be “required” in the context of pretextual takings.⁹⁹ To justify this closer objective scrutiny, the so-called “circumstances of the [condemnation’s] approval process” would have to “greatly undermine the basic legitimacy of the outcome reached.”¹⁰⁰ Naturally, the Goldstein plaintiffs’ utter failure to provide facts supporting their allegations of bad faith, pretext, and illegality did not trigger that closer

objective scrutiny to which the Goldstein court alluded as a possibility in some pretextual takings cases.

The Goldstein fact pattern, however, is not present in all cases, and there are cases in which the plaintiffs can and do provide the court with ample evidence concerning pretext, thus triggering a closer objective scrutiny. Brinkmann presented precisely such a fact pattern. In Brinkmann, the “circumstances” surrounding the process of a passive park approval ranged from the Town’s alleged lawbreaking arising out of the Town’s refusal to conduct the $30,000 market study for which the Brinkmanns had paid to the allegedly baseless moratoriums. Such accusations must have, at a minimum, been supported by objective evidence that the Brinkmanns provided, as the Brinkmann majority even noted that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use.”¹⁰¹

But returning to the Goldstein rule, here the “approval” consisted of the Town authorizing the condemnation of the Brinkmanns’ parcel. And as to the “outcome” reached: one could plausibly argue that a regulation-abiding family business was shut down, and the parcel was condemned simply so others could enjoy a park without any amenities. The rule that Goldstein sets out, calling for a closer objective scrutiny, can therefore be applied to the Brinkmann facts. On its face, Brinkmann checks off all three elements of the Goldstein rule: circumstances, approval, and outcome. Of course, counterarguments could be made here, such as (1) building a hardware store in this specific location might further “increas[e] traffic in an area that is already dangerous” and (2) residents of the Town of Southold have numerous “concerns” about this hardware store and do not want the Brinkmanns to build it.¹⁰² But all of these accusations and counterarguments would likely require closer objective scrutiny—as opposed to automatically blessing a bad-faith taking because the condemner asserted some public use.

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

One last aspect of Goldstein worth addressing is how the Brinkmann majority emphasized that, apparently, pursuant to Goldstein, “a pretext-based challenge to a taking has a ‘dubious jurisprudential pedigree.’ ”¹⁰³ This is largely taken out of context and is an inappropriate generalization. The Goldstein court said that the “particular kind of ‘pretext’ claim the plaintiffs [raised] in this case . . . bears an especially dubious jurisprudential pedigree.”¹⁰⁴ What has a dubious jurisprudential pedigree is the evidentiary underpinning of the Goldstein plaintiffs’ pretext claim, not all other pretext-based claims outside of the Goldstein realm; Mr. Ratner offered an extensive list of “well-established” public uses to counter the Goldstein plaintiffs’ claim.¹⁰⁵ Contrast Goldstein’s “creation of affordable housing units,” “mass-transit improvements,” and “redress of blight” with Brinkmann’s 1.7-acre empty park.¹⁰⁶ The difference is as starkly evident as it is profound, indicating that the Brinkmanns’ assertion of a pretextual taking was not of dubious jurisprudential pedigree.

C. The Possibly Fatal Mistake of Kelo Misinterpretation

Before this Note addresses the Brinkmann majority’s possible misinterpretation of Kelo—or at least, its failure to consider alternative interpretations and dispose of them appropriately—an important question should be addressed: Why does it matter how the Brinkmann majority interpreted Kelo? The answer is simple: the Kelo misinterpretation alone likely cost the Brinkmanns their property.

The Brinkmann majority helped themselves to generous portions of Kelo—or, more specifically, the following Kelo passage—which is the key in this analysis: “[T]he [C]ity would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party . . . Nor would the [City] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”¹⁰⁷

An Unwarranted Inference Drawn by the Kelo Majority

The Brinkmann majority confidently asserted that the “mere pretext of a public purpose” language is not an “overarching prohibition against any and all purposes alleged to be ‘illegitimate.’ ”¹⁰⁸ Per the Brinkmann majority, Kelo imposed no requirement that the “government’s stated objective . . . be genuine, and not a pretext for some other, illegitimate purpose,” unless that purpose concerns bestowal of private benefit.¹⁰⁹ The Brinkmann majority concluded that, under Kelo, “the only impermissible pretext is bestowing a private benefit.”¹¹⁰ So only when there is an alleged private purpose (e.g., private party A conferring a private benefit on B, another private party) does the Brinkmann majority actually care to delve into whether the government’s stated objective is genuine. Other kinds of pretext such as prevention of a legal land use (think a family-owned hardware store), spite, and discrimination are permissible under Brinkmann—as long as there is an asserted valid public use.¹¹¹

And in Brinkmann, bestowal of private benefit was not alleged, so the Brinkmanns were simply out of luck.¹¹² In Brinkmann, the issue was not that the government bestowed a private benefit upon some private party at the Brinkmanns’ expense. Nor was there some other permutation of the “private benefit” concern. Instead, at issue was a municipality taking private land for a pretextual public use (i.e., a passive use park)—not for purposes of giving the land to some other private party.

But here an interesting wrinkle emerges in the Brinkmann majority’s logic: when did Kelo say that the sole impermissible takings are those in which the government’s actual motive is to bestow a private benefit upon some private party? Similarly, when did Kelo say that takings driven by spite, discrimination, or animus are allowed and require no inquiry into both purpose and mechanics? These are trick questions because Kelo never said either, and yet the Brinkmann majority inferred that it did.

It would seem that the likely reason why Kelo’s “mere pretext of a public purpose” language is immediately followed by a bestowal of private benefit qualifier is because Kelo, as a case, focused exclusively on private use. At issue in Kelo was whether the city could seize private property from one private party in order to confer a benefit on another private party, all for the ostensible purpose of economic development. Accordingly, by what logic can the Brinkmann majority confidently decree which other pretextual takings are permissible or impermissible when the only issue before the Kelo court involved private use and nothing else? Or are we supposed to assume that because private benefit was the only kind of pretext mentioned by Kelo, this now suddenly means that all other kinds of pretext are excluded from this status of impermissibility, therefore making them permissible under all circumstances—even the most egregious?

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

The Brinkmann majority interpreted “mere pretext of a public purpose” as stating that the only impermissible takings are those in which there is a conveyance of private benefit.¹¹³ The same language, however, can also be interpreted thusly: takings that convey a private benefit, along with other forms of pretextual takings (e.g., those arising out of spite, discrimination, or unfair prohibition of running a regulation-abiding family business) are all impermissible. This Kelo language does not necessarily close all doors to other claims stemming from other forms of pretext, as claimed by the Brinkmann majority. One can just as well argue that Kelo merely provided a single, non-exclusive example of pretext (i.e., conveyance of private benefit) and the reason why this example pertained to conveyance of private benefit and not something else is because Kelo is a case that narrowly addresses the private benefit issue. But this act of providing a single example of pretext does not deny protection to all other kinds of pretextual takings. The “mere pretext of a public purpose” language does not delineate what is excluded from the so-called “pretext.” Nor does Kelo place any restrictions or limits upon potential plaintiffs raising other types of pretextual takings claims, such as those involving discrimination or spite.

This idea of varying interpretation of the Kelo language was also examined in New England Estates, LLC v. Town of Branford, a 2010 Connecticut Supreme Court decision which is in direct opposition to Brinkmann.¹¹⁴ Notably, the Second Circuit (where Brinkmann was decided) includes Connecticut in its footprint.¹¹⁵ In New England Estates, New England Estates wanted to build an affordable housing development near the landfill.¹¹⁶ The Town committee then abruptly decided that the town had an urgent need for playing fields precisely where the affordable housing development was to be built.¹¹⁷

Apart from the dire need to build a playing field, the town in New England Estates also decided to bolster its tenuous position via an alternative justification for the taking by citing environmental concerns surrounding the proposed development’s proximity to the landfill.¹¹⁸ And this justification would have probably worked had there been no evidence to the contrary: (1) an internal memorandum outlining which strategies had already been implemented by the town for the sole purpose of “protecting the town against affordable housing appeals” and (2) “internal communications” among town officials revealing just how much they did not want an affordable housing development.¹¹⁹

To justify its environmental concerns, the town relied on a one-page sketch of the playing fields and a five-page letter, which outlined “generic” concerns regarding building residential developments near landfills.¹²⁰ Beyond alluding to “possibilities” of such contamination, the letter said nothing substantive in regard to the specific landfill at issue.¹²¹ The incriminating internal communications, coupled with the town officials’ sudden environmental concerns at a time very convenient for them, followed swiftly by the exercise of eminent domain power to stop the affordable housing project, made it rather easy for the New England Estates court to properly halt the town’s bad faith actions.¹²²

The town argued that it did not violate the Takings Clause by being “dishonest” about its reasons for taking the land because the Takings Clause only prohibits takings for private use, not other kinds of pretextual takings.¹²³ If this argument sounds familiar, it is because this is precisely what the Brinkmann majority emphasized: the “[Brinkmanns’] complaint does not allege that the Town meant to confer [a] private benefit” and because an “unimproved” public park still constitutes public use, this makes the condemnation valid.¹²⁴ Unlike the Brinkmann majority, however, which praised this reasoning, the New England Estates court rejected the town’s assertion that takings become violations solely when the government seizes private property for a private use.¹²⁵ This assertion made by the town in New England Estates is identical to that of the Brinkmann majority¹²⁶ and also has its roots in a possible misinterpretation of Kelo, as examined in this Section.

The New England Estates court emphasized that the town’s reliance on Kelo “for the proposition that only a taking for the purpose of conferring a benefit on a private party constitutes a violation of the [Takings Clause]” is incorrect.¹²⁷ Such a reading of Kelo’s “mere pretext of a public purpose” language interprets the Takings Clause in an unjustifiably “overbroad[]” manner.¹²⁸ That is, it takes Kelo’s prohibition against bestowals of private benefits and extends it to say that the sole impermissible takings are those in which there is a bestowal of private benefit. Further, because the “issue of whether a bad-faith taking would violate the [Takings Clause]” was never before the Kelo court to begin with,¹²⁹ the inference that bad-faith takings should go unchecked cannot be made. Thus, the Connecticut Supreme Court would disagree with the Brinkmann majority concerning the interpretation of the pretext language in Kelo.

It is the current reality of the takings landscape that whether a Connecticut resident loses or prevails on their pretextual taking claim now largely depends on choice of venue.¹³⁰ In Connecticut state court, someone with a Brinkmann-esque fact pattern would likely prevail on the merits.¹³¹ Yet that same hypothetical person marching into federal court would summarily lose for lack of an alleged bestowal of private benefit.¹³²

III. THE NINTH & SEVENTH CIRCUITS

This Section examines the reasoning of the Ninth and Seventh Circuits in cases that resemble Brinkmann and tackle bad-faith takings analysis. Both circuits, to varying degrees, stand in contrast to the Brinkmann majority which conducted no such analysis.

A. Analysis of the Ninth Circuit

In the 1966 Ninth Circuit decision, Southern Pacific Land Company v. United States, the Ninth Circuit stated that when administrative agencies engage in takings for an “authorized public purpose,” such takings are “not subject to judicial review,” with one crucial exception.¹³³ Takings for an authorized public purpose can be subject to judicial review if the administrative agency’s decision to condemn a property is “alleged to be arbitrary, capricious, or in bad faith.”¹³⁴ While easy enough to allege, this standard is deferential to administrative agencies, resulting in a low likelihood of success for plaintiffs. In fact, the Ninth Circuit even stressed how unlikely it is for plaintiffs in such cases to succeed: “in each instance in which a lower court set aside a federal agency’s determination that it was necessary to take [a] particular property . . . the lower court’s ruling was reversed on appeal.”¹³⁵ The principle nevertheless stands: there are instances when the Ninth Circuit will examine alleged bad faith in takings claims, even though these allegedly bad-faith takings all bear expressly stated ostensible public uses.

A natural inquiry in this line of analysis is to examine what is required to clear the Ninth Circuit’s high bar for challenging administrative agencies’ “arbitrary” takings. The Ninth Circuit instead provides multiple examples of how not to satisfy it, which all come down to the quality of bad faith evidence. If the evidence of bad faith is insubstantial or nonexistent—especially coupled with very big, almost scandalous, but largely unsupported assertions—the Ninth Circuit will not invalidate the administrative agency’s taking.

In Southern Pacific, the Southern Pacific Land Company (“SPLC”) owned 4,600 acres of land, including the mineral rights.¹³⁶ The U.S. Government wanted to condemn the land and the mineral rights for purposes of constructing a naval air station.¹³⁷ SPLC thought it advantageous to essentially imply that the U.S. Government decided to profit off SPLC’s land and engage in an “outside land speculation.”¹³⁸ When deposed, the Assistant Secretary of the Navy testified to the exact opposite of this assertion, stating that mineral extraction was actually “inconsistent with the establishment of the naval air station, and was not [even] contemplated when the declaration of taking was filed.”¹³⁹ In fact, the primary reason for condemnation was so that the land and the associated mineral rights would be utilized to produce oil only “in the case of emergency.”¹⁴⁰ And just like that, with absolutely no evidence to refute any of the U.S. Government’s aforementioned points, the plaintiffs did not prevail on their bad-faith taking claim.¹⁴¹

A subsequent 1968 Ninth Circuit decision, Scott Lumber Company v. United States, is largely identical to Southern Pacific’s reasoning and, unfortunately, its outcome too.¹⁴² Here, the United States (on behalf of the United States Forest Service) sought to condemn appellant’s estate in timber land “for the construction, maintenance and permanent use of highways . . . and for the use, conservation and protection . . . of [the] forests [on appellant’s land].”¹⁴³ Similar to SPLC in Southern Pacific, the Scott Lumber appellant claimed that the “taking was not for a public purpose” but instead for the “purpose of benefitting certain competitors of appellant pursuant to an illegal agreement.”¹⁴⁴ As in Southern Pacific, the assertion was as unsupported as it was bold.¹⁴⁵ Moreover, the deposition of the Acting Secretary of the Department of Agriculture also revealed nothing suspicious.¹⁴⁶ Accordingly, the Scott Lumber court ruled that it was “completely satisfied” that the government’s taking was for public use—given that the “facts alleged by [the appellant], [even] taken in the light most favorable to [the appellant]” still did not “show that the action of the officials ha[d] such an arbitrary, capricious or bad faith quality as to justify [judicial] interference.”¹⁴⁷ Crucially, however, the Scott Lumber court did contemplate judicial interference and was even willing to possibly invalidate a bad-faith taking had the appellant actually produced sufficient evidence of bad faith, beyond claims that were as baseless as they were audacious.¹⁴⁸

The Scott Lumber court even agreed with the lower court’s declaration that “[t]his Court need not, and will not, stand idly by and allow administrative officials to take private property arbitrarily, capriciously, [or] in bad faith,” something that cannot be said about the Brinkmann majority.¹⁴⁹ If anything, this “idle” manner is emblematic of Brinkmann’s reasoning: even when there is blatant evidence of bad faith coupled with some suspect public use, the Brinkmann majority would decline to look into any “alleged pretexts and motives.”¹⁵⁰ The Scott Lumber court was not only eager to conduct itself in a non-idle manner but also examined the facts in the light most favorable to the appellant. Yet, even with the Scott Lumber court largely cheering the appellant on and giving the appellant all the necessary tools to prevail, the appellant simply failed to provide evidence of bad faith.

Would a similar evidentiary framework, as employed by the Southern Pacific and Scott Lumber courts (specifically in the context of arbitrary takings by administrative agencies) make sense in the Takings Clause context? This is a ready-to-go framework that can be easily applied beyond cases where administrative agencies (such as Scott Lumber’s United States Forest Service) are accused of engaging in bad-faith takings.

Although it offers a potential solution, this framework has its pitfalls. One, it is similar to rational basis review, so much so that it even uses rational basis review’s “arbitrary” language. Such language is called for in rational basis review only because higher levels of scrutiny require something more than the regulatory action not being arbitrary. At the end of the day, it is a pretty low bar, offering little protection for condemnees’ interests; any legitimate interest (e.g., a passive use park) would suffice. Two, it is hard to define just what constitutes “good” evidence in a manner sufficient to demonstrate bad faith. And three, even if condemnees provide satisfactory evidence, the government can simply argue the following:

That only one or two members of the agency (or a municipality like in Brinkmann) had bad-faith intent in condemning the land (while the rest did not);
That it is not the province of the judicial system to disrupt a democratic process; and
That it is not bad faith but mere incidental disparate impact that was not actually intended.

B. The Seventh Circuit & Question of Legislative Deference

The Seventh Circuit takes a similar approach to the Ninth Circuit: although some deference may be given to administrative agencies, evidence of arbitrariness and bad faith matters when a court evaluates whether an administrative agency’s taking was indeed for a public use. That is, the Seventh Circuit holds that there is no valid or legitimate public use if such public use stems from bad faith or pretext. So even if there is an alleged unimpeachable public use (such as a public park), the administrative agency’s taking is declared invalid if the plaintiff can prove bad faith or pretext associated with said public use.¹⁵¹ This is a stronger iteration of what the Ninth Circuit decided in Scott Lumber and Southern Pacific. The Ninth Circuit provided the condemnees with an opportunity to present evidence that could, in theory, demonstrate bad faith or arbitrariness by the administrative agency. But again, realistically, because the evidentiary bar is high and administrative agencies are (automatically) given much deference, such efforts will likely fail. The Seventh Circuit, on the other hand, made “public use” determinations conditional on there being no bad faith and reserved the judicial right to dig deeper to see if legislative deference is warranted.

In United States v. 58.16 Acres of Land—a 1971 Seventh Circuit decision—a husband and wife owned a 58.16-acre tract which primarily contained farmland on which the landowners’ home stood.¹⁵² The United States wanted to take this farmland for purposes of flood control and reduction of flood crests.¹⁵³ The landowners then argued that the United States’ action was “arbitrary, discriminatory, capricious, vindicative, and in bad faith,” thus warranting a “valid defense to the condemnation proceeding.”¹⁵⁴ Or, in short, landowners contended that the asserted public use (to prevent flood control and reduce flood crests) was a pretext. To prove this, they cited their repeated complaints to the government regarding erosion and the government’s “failure to maintain proper water levels” from 1968 through 1970.¹⁵⁵ The landowners went on to stress that “no [government] action had [ever] been taken to repair the damage or to prevent further erosion.”¹⁵⁶ After three years of refusing to fix the issue and not responding to any of the landowners’ complaints, the government responded to the complaints in 1971, informing the landowners that condemning their property would be much cheaper than protecting it from erosion or floods.¹⁵⁷

It was unclear to the Seventh Circuit why the district court judge denied without merit the motion to vacate the order for possession.¹⁵⁸ The Seventh Circuit surmised that perhaps the reason the motion had been denied without merit (i.e., the motion was basically deemed frivolous) was that the district judge found against the landowners’ bad faith claim.¹⁵⁹ Or, as the Seventh Circuit further posited, perhaps the district court ruled that way because the court thought that the administrative decision to condemn the land “was [simply] not judicially reviewable”—given that there was an alleged public use, regardless of the substantial pretext evidence.¹⁶⁰

The Brinkmann majority also greatly relied on a “longstanding policy of deference to legislative judgments” to rationalize inaction.¹⁶¹ Brinkmann is actually far from being the only court that emphasizes legislative deference in the takings context; it is neither a novel argument nor dispositive. For instance, even in 58.16 Acres of Land, the Seventh Circuit emphasized that “once the question of the public purpose has been decided, the amount and character of land to be taken . . . rests in the discretion of the legislative branch.”¹⁶² But the Seventh Circuit does not use this discretion to justify its own inertia. To the contrary, while the Seventh Circuit acknowledges and even embraces legislative deference, it nevertheless considers it proper for the judicial branch to “materially . . . aid[]” public use analysis “by exploring the good faith and rationality of the governmental body in exercising its power of eminent domain.”¹⁶³ Therefore, the two—that is, a substantive bad-faith takings analysis and deference to the legislative branch—are not mutually exclusive. According to the Seventh Circuit, the “determination of the extent, amount or title of property to be taken . . . rests wholly in legislative discretion,” assuming there is (1) an “absence of bad faith” and (2) the “determination” to condemn was “made in good faith.”¹⁶⁴ These “restraints” that the Seventh Circuit cleverly placed serve as evidence of how bad-faith takings analysis can peacefully co-exist with legislative deference.¹⁶⁵

The main takeaway here is that the Seventh Circuit emphasized that the district court was “required to resolve . . . questions” of “bad faith, arbitrariness, and capriciousness,” all of which bore upon the “determination of public use.”¹⁶⁶ The Seventh Circuit is firm that there is no valid public use without an absence of bad faith and a presence of “good faith and rationality of the governmental body in exercising its power of eminent domain,”¹⁶⁷ and this assertion runs directly counter to the Brinkmann majority.

While the Ninth Circuit was, in theory, willing to look at evidence of bad faith, which would potentially invalidate the taking, the Seventh Circuit made a pronouncement with which the Brinkmann majority would certainly disagree. Specifically, if there is strong evidence of bad faith or arbitrariness (and the Brinkmann majority acknowledged that there had been), there can be no legitimate public use, making the taking invalid. Unlike the Seventh Circuit, the Ninth Circuit does not make a valid public use expressly dependent upon a lack of bad faith. Regardless, both circuits prioritize and actively consider evidence of bad faith, so they can draw an inference of a taking’s validity.

IV. WHAT NOW?

The purpose of Part IV is to examine the Brinkmann fallout, while remaining solution-oriented with an eye toward the future. This Note examines which standard of review could be used to evaluate bad-faith takings on a federal level, focusing on the tripartite burden-shifting framework and also discussing the downsides of the Equal Protection Clause and the doctrine of unconstitutional animus in the context of bad-faith takings. This Section continues to imagine what could be, with the intention to move forward jurisprudentially from Brinkmann to a more fair, uniform, and dignified approach to bad-faith takings.

A. The Dangers of Rational Basis Review

In the context of bad-faith takings, there is a conflict between rational basis review and the various forms of heightened review. While there exist various permutations of what heightened review can and should look like—and of course, much disagreement too—this Note will only closely examine the tripartite burden-shifting framework. But first, rational basis review.

One cannot talk about rational basis review in the context of property law without, yet again, mentioning Kelo. The Kelo majority “declared that a taking should be upheld as consistent with the Public Use Clause,” just as long as it is “ ‘rationally related to a conceivable public purpose.’ ”¹⁶⁸ This “deferential standard of review echoes the rational-basis test.”¹⁶⁹ And rational basis review is extremely deferential to the legislative process—so much so that a “challenged law will be upheld if it could be rationally interpreted as advancing any conceivable legitimate public purpose.”¹⁷⁰ In fact, “even the ‘flimsiest’ of reasons will survive [said] scrutiny.”¹⁷¹ Courts are known to grant this legislative deference “even if there is nothing other than judicial speculation” to imply that the government was trying to advance a public purpose when enacting the law.¹⁷² This is precisely what happened in Kelo.

Under Kelo, a mere prediction (or judicial speculation) that some public use will generate some secondary public benefit is enough.¹⁷³ Even the Kelo majority itself, likely sensing a risk for the potential abuse of eminent domain under rational review, suggested that states can and should place “further restrictions” upon the takings power.¹⁷⁴ A large concern with this standard is that the embedded presumption of permissibility within the rational basis of review may “motivate[] trial judges to see no evil, hear no evil, and speak no evil” even in takings cases which “fail the smell test”¹⁷⁵—chief among them the Brinkmann case.

In the takings context, rational basis review can invalidate two types of condemnations: (1) when the “asserted purpose is not a cognizable public purpose” and (2) when there is a “clear intention to benefit a private party.”¹⁷⁶ Takings driven by bad faith (such as discrimination or arbitrarily forbidding a property owner from running a regulation-abiding family business) do not fall into either category. Why? Because an asserted public purpose such as a park is a cognizable public purpose, and discrimination would likely not involve a conveyance of private benefit upon a private party. This is why Justice Kennedy’s concurrence in Kelo suggested that “a more stringent standard of review” might be suitable for a “more narrowly drawn category of takings,” though largely referring to takings marked with “impermissible favoritism.”¹⁷⁷

To clarify, favoritism alludes to the governmental entity’s inherent reason “for favoring a certain party”; these reasons range from corruption to “a complex web of social and business relations.”¹⁷⁸ One could arguably view favoritism as a particular form or sub-category of bad-faith taking, one that punishes a property owner to benefit someone else. Favoritism is prohibited “out of concerns for basic fairness.”¹⁷⁹ The same exact logic, however, applies to takings which are marked by other kinds of bad faith, manifested in things like discrimination, racism, or animosity toward specific individuals—this, too, violates our inherent sense of fairness. Although Justice Kennedy’s concurrence speaks to issues of favoritism in the takings context, the reasoning outlined in the concurrence can be extrapolated further to other kinds of bad faith.

Justice Kennedy made reference to a more heightened standard of review, but he did not actually delve into the logistics of this more “stringent” standard.¹⁸⁰ For instance, it remains unclear as to which situations warrant a “meaningful rational-basis review that in [Justice Kennedy’s] view is [always] required under the Public Use Clause” versus those meriting a “demanding level of scrutiny” which in some cases even justifies a “rebuttable” “presumption of [a taking’s] invalidity” if the “risk of undetected impermissible favoritism of private parties is [] acute.”¹⁸¹ Would Justice Kennedy’s “demanding level of scrutiny” be akin to strict scrutiny? Rational basis plus? Justice Kennedy’s Kelo concurrence is vague on these questions. Justice Kennedy also failed to identify what evidence would trigger these standards or what exactly the court is supposed to do with said evidence of favoritism,¹⁸² an omission for which he received much criticism.¹⁸³

This Note disagrees with the assertion that Justice Kennedy exclusively referred to “rational basis plus” review.¹⁸⁴ Justice Kennedy referred to multiple standards. And yes, while Justice Kennedy’s Kelo concurrence creates much unnecessary confusion, that is the nature of the contemplated standards. Thus, the extra layer of complexity should not be swept under the rug. In fact, certain scholars even argue that the criteria¹⁸⁵ Justice Kennedy considers (which supposedly triggers some form of heightened scrutiny) directly “collid[e]” with the Kelo majority’s assertion that there should be no “intrusive scrutiny”¹⁸⁶—suggesting that Justice Kennedy indeed took it a step further than rational-basis-plus review. Accordingly, this Note posits that in addition to rational-basis-plus review, Justice Kennedy was also hinting at something even more demanding.

Furthermore, although not a focus of this Note, prudence demands a discussion, albeit brief, of rational-basis-plus review. Although Justice O’Connor characterizes it as a “more searching form of rational basis review,”¹⁸⁷ the Supreme Court “has never acknowledged its existence” and Justice Scalia downright denied it.¹⁸⁸ Previous inquiries into this doctrine (such as the “justification” of its presence or the “underlying theory”) were “the equivalent of a constitutional snipe hunt, and about as productive.”¹⁸⁹ Overall, there certainly exists the notion that the doctrine is “suspicious” and “problematic,” given that it “lack[s] an articulated basis in principle” and “is impossible to either apply or constrain in a principled way.”¹⁹⁰ Also, on a more practical level, it is often difficult to identify which level of scrutiny the court actually applied (i.e., rational basis versus rational-basis-plus) and most of the time this distinction is rooted in mere speculation.

Contrast the rational-basis-plus review doctrine with the burden-shifting evidentiary framework first put forth in McDonnell Douglas Corp. v. Green, a 1973 Supreme Court case.¹⁹¹ This framework has frequently been used to analyze claims of discriminatory treatment such as discrimination claims under the Americans with Disabilities Act and Title IX gender discrimination claims.¹⁹²

Thus, this Note will next explore the McDonnell Douglas burden-shifting evidentiary framework for purposes of steering bad-faith takings analysis in a more uniform and fair direction.

B. Heightened Review: The Tripartite Burden-Shifting Standard

In the context of takings, this standard was originally proposed by Daniel Kelly to examine takings which are rooted in favoritism only.¹⁹³ The goal of this Note is to see how this framework would operate in the context of takings driven by discrimination and bias.

Direct Versus Indirect Evidence

In part one of the analysis, an allegedly wronged employee can either produce direct or indirect evidence of discrimination.¹⁹⁴ Similarly, a condemnee would be required to demonstrate that a taking is tainted with favoritism via either producing direct or indirect evidence.¹⁹⁵ Direct evidence could essentially act as a “smoking gun.”¹⁹⁶ And in the context of favoritism, for example, direct evidence could be satisfied by an email exchange between some private developer and a municipal official in which it is clear that the “actual purpose of the taking [was] to benefit the [private] developer.”¹⁹⁷ This is a high burden to satisfy, so the indirect evidence would be more practical. The condemnee (again, in the favoritism context) would need to prove two elements: (1) that the “project involves a private party” and (2) said private party “might obtain a distinct benefit” (given that “favoritism is only possible in a project in which a private party expects to obtain an advantage”).¹⁹⁸

In the context of other kinds of bad faith, the analysis would look something like this: If the condemnee who (allegedly) was on the receiving end of bad faith decides to take the direct evidence route, they would be required to demonstrate some form of smoking gun. For example, a documented exchange in which municipal officials exhibit disdain for the condemnee—whether it be discrimination, racism, homophobia, or something else. There are a few issues with the direct evidence route, however. For instance, how likely is it that a condemnee will obtain records of these discriminatory written exchanges from multiple municipal officials, and not just one? If the animosity toward the condemnee stems from just one municipal official, should this suffice as conclusive evidence of bad faith? For instance, other municipal officials on the same board may have voted for condemnation under a genuine belief that condemnation would promote an actual public interest. Another issue with direct evidence is that most conduct is simply not marked with blunt evidence of discrimination. Further, municipal officials can easily argue that something they said was taken out of context—which may raise evidentiary issues—or was misinterpreted. So, it is therefore unlikely that a condemnee would easily satisfy the direct evidence threshold.

As to indirect evidence, Brinkmann supplies a great example. In a nutshell, the Brinkmanns could argue that the Town of Southold engaged in multiple machinations to prevent construction of the Brinkmanns’ hardware store (allegedly ranging from pressuring the bank to breach its contract with the Brinkmanns¹⁹⁹ to inventing moratoriums).²⁰⁰ So what kind of evidence would the Brinkmanns need to show to satisfy this indirect evidence standard and establish a prima facie case of bad faith, thus satisfying the first element of the tripartite burden-shifting framework and thereby shifting the burden onto the Town to prove that the taking was not driven by bad faith? Largely mirroring the requirements of a Title VII claim, the Brinkmanns would be required to show that:²⁰¹

Either
- They are members of a protected group (think religion, race, pregnancy, sex, gender, sexual orientation, national origin, etc.) or
- Their fundamental right was infringed upon (although the right to own and use property has not been deemed a fundamental right, certain scholars have argued that such rights “need to be protected with nothing less than the judiciary’s strictest level of scrutiny.”²⁰² This is certainly an

expansion of the framework, but an argument worth considering)

(2) That they have applied and complied with all requirements in their permit application;

(3) That, although the Brinkmanns complied with all regulatory requirements,

The Brinkmanns’ permit application was rejected and
The municipality decided to seize the Brinkmanns’ land via eminent domain; and

(4) That, after the rejection,

The municipality continued to grant permit applications to similarly situated individuals and
Did not seize property of similarly situated individuals (such as adjacent lots with virtually identical characteristics, for instance).

If the Brinkmanns successfully demonstrate indirect evidence, then the burden would shift to the governmental entity to articulate some “legitimate, nondiscriminatory” reason for the permit’s rejection and subsequent taking.²⁰³

Beyond a Merely Cognizable Reason for Condemnation

As to the second element of the test, the burden would then be on the municipality to articulate a legitimate, non-bad faith driven reason as to why it rejected the Brinkmanns’ numerous permit applications and decided to take their land.²⁰⁴ In analyzing favoritism-motivated takings, Kelly emphasizes that a condemner’s mere articulation of some cognizable public purpose (such as “preserving open space” or “generating new jobs”) would be insufficient to satisfy this element.²⁰⁵ A condemner would instead be required to show why a specific kind of private involvement is required for the project to take place.²⁰⁶ For instance, perhaps said private party possesses some crucial information or expertise that other similarly situated experts do not.²⁰⁷

The Town of Southold would satisfy this element by showing that their reason for rejecting the Brinkmanns’ permit and taking their land was not driven by bad faith. What would be that “reasonable basis” for taking the Brinkmanns’ land?²⁰⁸ This could be a wide array of things. Perhaps the Brinkmanns’ business was not compliant with regulations, or their proposed business constituted a hazard, a nuisance, or a danger to others, compelling the municipality to act to protect the safety of its residents. But such claims would require actual empirical evidence (e.g., studies done by civil engineers who hold proper qualifications) suggesting that the construction of a hardware store in that specific location would lead to a significant increase in traffic and thus present a real danger to residents. Further, these experts should be subject to cross-examination.

Elevated Risk of Pretext/Bad Faith

If the condemner (in this case, a municipality) meets the burden outlined in the previous element, the “presumption” of intentional bad faith would disappear.²⁰⁹ The condemnee can nevertheless prove “disparate treatment” by showing that a condemner’s explanation is pretextual.²¹⁰ In the context of favorability, a condemnee would satisfy this element by demonstrating a heightened risk of impermissible favoritism.²¹¹ For instance, a condemnee could show that a municipality was “capable of selecting a private party through a competitive process but decide[d] not to do so.”²¹²

By analogy, for purposes of demonstrating a heightened risk of pretext, the Brinkmanns could demonstrate any of the following (this list is non-exhaustive):

(1) An overwhelming majority of Town residents did not want a passive use park²¹³ or actively advocated for the Brinkmanns’ hardware store;

(2) The Town had not considered any other alternatives before condemning Brinkmanns’ land and ignored the empty adjacent lot;²¹⁴

(3) The Town decided to condemn the Brinkmanns’ land only after the Brinkmanns announced their plans to build a regulation-abiding, family-owned hardware store;²¹⁵

(4) The Town became interested in acquiring the Brinkmanns’ empty lot only after the court allowed the Brinkmanns to proceed with their claim against the Town’s moratorium;²¹⁶

(5) The Town never hired any professionals to evaluate whether the Brinkmanns’ property was suitable for a park;²¹⁷

(6) The “projected . . . benefits” of a passive use park were and remain de minimis and “trivial.”²¹⁸

Now, the Town could argue that because a park is an established public use, it was allowed to take the Brinkmanns’ land, given that there is a presumptive benefit to the public.²¹⁹ This line of argumentation should not be allowed (just as it is not allowed in the second element of this test) because that would make this test regress back into rational basis review. Furthermore, because this test largely centers around the risk of ill motive, the condemnees (like the Brinkmanns) should not be required to establish actual ill motive. All they would be required to show is an elevated or substantial risk of bad faith conduct. So for purposes of this last element, it should be sufficient for the Brinkmanns to demonstrate that there is a heightened risk that the municipality’s taking is not justified; this can be achieved via a showing of 1-6, or some robust combination thereof.

C. So What About the Equal Protection Clause?

The Brinkmann majority cited the Equal Protection Clause as an example of a hypothetical potential avenue available to those afflicted by governmental takings instead of the Takings Clause.²²⁰ But the Equal Protection Clause is a trap because it largely falters at the level of rational basis review, despite the existence of two other standards for Equal Protection Clause analysis (intermediate scrutiny and strict scrutiny). Under rational basis review, most condemnees will simply never meet the burden of proving that there is an absence of any legitimate municipal interest in condemnation. A cheap park or an empty playing field will satisfy that legitimate municipal interest just fine, or so rational basis review will typically find.

The Three-Tier Framework

The Equal Protection Clause of the Fourteenth Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”²²¹ When someone wants to argue that their equal protection rights were violated (in the context of challenging eminent domain takings), they are required to initiate suit under 42 U.S.C. § 1983.²²² To prevail on a § 1983 claim, the condemnee must successfully demonstrate two elements: (1) that their federal right was violated (that is, their right to “equal protection under the law as guaranteed by the Fourteenth Amendment”) and (2) the defendant “who violated [their] right did so under the color of state law.”²²³ The defendant who is alleged to have violated the condemnee’s equal protection rights can be a person or entity “who effectuated the condemnation proceeding.”²²⁴ Thus, “local governing bodies” and “local officials” can be sued under § 1983 when their alleged unconstitutional action essentially violated the condemnee’s equal protection rights.²²⁵

Equal protection jurisprudence is analyzed under three tiers: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.²²⁶ Rational basis review is the “default standard” and is the “lowest level of judicial scrutiny.”²²⁷ Under rational basis review, the burden would be on the condemnee to show the absence of any legitimate municipal interest served by the condemnation.²²⁸ An overwhelming majority of equal protection cases are assessed under this very deferential standard.²²⁹ This means that plaintiffs overwhelmingly lose under rational basis review.²³⁰ In fact, the “number of rational basis cases in which plaintiffs have prevailed is so small that these cases have become an object of study in and of themselves.”²³¹ For example, between 1971 and 1996, the Supreme Court “considered one hundred ten rational basis equal protection cases” and “of these cases the plaintiffs won only ten times,” rendering a nine percent success rate.²³² The Brinkmanns, for instance, would never prevail under this standard: A park is a recognized public use and even a park that is devoid of any facilities could rationally be said to benefit Town residents. The Town residents could still hold picnics there or let their kids run around. So, under rational basis review, the Town would be viewed as having had some conceivable or possible interest in condemning the Brinkmanns’ land.²³³

As to strict scrutiny, courts may depart from rational basis review in two instances: (1) when there is either a suspect or quasi-suspect classification or (2) a fundamental right at issue.²³⁴ These two are jurisprudential rabbit holes and thus beyond the scope of this Note, but the following are deemed examples of suspect classifications (thereby triggering strict scrutiny): race and national origin.²³⁵ Age, disability, and economic disadvantage—among many others—do not qualify as suspect classifications and would only be subject to rational basis review.²³⁶ In the takings context, the “suspicion” comes from the very fact that a government or municipality may have relied on one of these classifications when making the condemnation decision (in the takings context).²³⁷ Such reliance would indicate “prejudice or antipathy toward the named group rather than a basis for sound [decision].”²³⁸

A fundamental right, on the other hand, has a much more confusing roadmap, or lack thereof: despite the fact that strict scrutiny “presupposes” so-called fundamental rights, the strict scrutiny formula gives absolutely “no guidance concerning how the identification [of rights violations] should occur.”²³⁹ Some of the recognized fundamental rights are the right to vote,²⁴⁰ the right to have children,²⁴¹ and the right to travel interstate.²⁴²

Categories of suspect class and fundamental right are now considered to be “seemingly closed,” making strict scrutiny, therefore, “virtually inaccessible” unless there is an already recognized suspect classification or a fundamental right at play.²⁴³ The Supreme Court has not “conferred suspect status on any [new] group since the 1970s,” even for “groups widely acknowledged to have suffered invidious treatment.”²⁴⁴

And the Brinkmanns, along with most other condemnees, would most likely not even make it to strict scrutiny analysis under the Equal Protection Clause in the first place. For instance, in Brinkmann, there was no alleged or potential suspect classification. And a property right is not a fundamental right in the eyes of substantive due process.

If a governmental action imposes a facially neutral classification (i.e., the law does not, on its face, single anyone out in particular, thereby implicating no suspect classification), condemnees could still argue that:

(1) The governmental action has a disparate impact (i.e., disadvantages a certain group of people) AND

(2) The governmental action was taken purposefully to harm this particular group of people (e.g., on the basis of race).

Although this would be an alternate pathway to strict scrutiny, most condemnees’ claims will likely fail prong #2’s discriminatory intent test and be given the short shrift of rational basis review instead.²⁴⁵ To demonstrate prong #2, condemnees (such as the Brinkmanns) would need to prove that a decision to condemn was because the government wanted to harm a certain group of people, not “in spite of” their decision to condemn having a disparate effect on a certain group of people.²⁴⁶ That is, the Brinkmanns would need to prove that the Town initiated this bad faith condemnation action precisely because of the Town’s intent to cause “adverse effects” upon the Brinkmanns as members of an “identifiable group” (assuming that the Brinkmanns had been members of an identifiable group).²⁴⁷ Proving such discriminatory intent is widely acknowledged as being “exceptionally difficult” to do,²⁴⁸ and this is another reason why most claims are subject only to rational basis review.

Doctrine of Unconstitutional Animus

This Note also acknowledges the doctrine of unconstitutional animus, which is based largely on the Equal Protection Clause.²⁴⁹ At first glance, it presents an attractive solution: If a municipality’s condemnation is motivated by animus, why can’t the court just strike it down? Why is the Takings Clause even necessary? But unconstitutional animus has some glaring problems.

Unconstitutional animus is basically a loophole that allows an equal protection claimant to possibly prevail under rational basis review.²⁵⁰ While that would be good news for the Brinkmanns, the bad news is that it is, at best, unclear what constitutes forbidden animus.²⁵¹ A law (or a decision to condemn, for instance) is animus-based if it is “based on nothing more than bias, hatred, or dislike.”²⁵² The Supreme Court has defined animus as “a bare . . . desire to harm” a person, which is a high burden to meet.²⁵³ For one, what if a condemnation is based on both animus and some animus-free “public-regarding objective”?²⁵⁴ For instance, in Brinkmann, both the Town residents and even the dissenting judge (pursuant to the Brinkmann majority’s snarky suggestion) could come to the park, “breathe its air” and

“spread [a] picnic.”²⁵⁵ A public park is, by definition, for the public to enjoy, and would thus constitute a public-regarding objective.

The definition of “animus” poses further issues. To illustrate, neither “religious belief[s]” nor “personal morality” are necessarily equated with animus.²⁵⁶ Take the 2015 Supreme Court decision, Obergefell v. Hodges, for instance.²⁵⁷ Although the Obergefell Court held that prohibiting same-sex couples from marrying violated both the Equal Protection Clause and substantive due process, the Court also noted that it declines to “disparage” those who “deem same-sex marriage to be wrong . . . based on decent and honorable religious or philosophical premises.”²⁵⁸ So when is it a decent and honorable religious belief and when is it animus-based homophobia?²⁵⁹ How does the court draw a consistent or predictable line between prejudice and a decent and honorable personal belief? This absence of a framework on how to arrive at a decision that something indeed constitutes animus is the reason that lower courts have been “wary of relying on animus” in the first place.²⁶⁰

Further, this doctrine necessitates an inquiry into subjective motivations of those officials who decided to condemn property. This takes us back to one of the Brinkmann majority’s concerns: that motivational inquiry is an “exercise as fraught with conceptual and practical difficulties.”²⁶¹ And the Brinkmann majority, in the context of unconstitutional animus, would not be wrong because the unconstitutional animus doctrine has been criticized as “analytically empty, a conclusion clothed in argument.”²⁶² The unconstitutional animus doctrine largely sits on a famously shaky foundation of just four cases (the so-called “animus quadrilogy”).²⁶³ Some scholars even argue that three of these cases “could and should have relied instead on [the traditional] equal protection doctrine for suspect and quasi-suspect classifications,” thereby expanding the suspect and quasi-suspect classifications.²⁶⁴ The unconstitutional animus doctrine is simply not as robust as the Takings Clause or the three tiers of scrutiny under the Equal Protection Clause. In contrast to the doctrine of unconstitutional animus, various bad-faith takings frameworks (all directly arising from the interpretation of the “public use” language in the Takings Clause) were already employed by the Ninth Circuit in Southern Pacific and Scott Lumber, the Seventh Circuit in 58.16 Acres of Land, and even the Connecticut Supreme Court in New England Estates. Although future jurisprudential analysis may well be able to rely on a vigorous animus framework, the current lack of such a framework, along with its high bar for success, makes animus analysis a suboptimal solution.²⁶⁵

D. Brinkmann Implications

At its core, Brinkmann is more than just bad law. It is actually dangerous because it incentivizes governmental entities to lie when condemning someone’s land, which in turn denies basic accountability to the public. Under Brinkmann, any bad-faith taking can receive judicial blessing if the government or a municipality simply utters words like “passive use park” or “playing field.” Discrimination can be sanitized in this manner. Likewise, racism and outright hostility. In Brinkmann, the Town stated at oral argument that, under the Brinkmann majority’s interpretation of public use, it would be perfectly acceptable for the Town to “seize the homes of disfavored minorities out of animus toward those minorities and a desire to drive them out,” just so long as the Town “said it would build parks where the minorities’ homes once stood.”²⁶⁶ Frighteningly, the Town’s analysis is not incorrect under the Brinkmann rule. Even scarier is that this is now the law in the Second Circuit, and this is what the Second Circuit has authorized condemnors to do.

Law has real world consequences. For instance, Kelo expanded the concept of public purpose to “encompass any economically beneficial goal, guarantee[ing] that these losses [of property] will fall disproportionately on poor communities.”²⁶⁷ Kelo gave a green light to “large corporations and development firms” to “victimize” people who are “less likely to put their lands to the highest . . . social use.”²⁶⁸ Kelo essentially “affirmed that a government may take the private property of one party and give it to another private party if the other pays more taxes.”²⁶⁹ It did not take long to confirm that Kelo “engendered fear across the nation”:²⁷⁰ in the year immediately after Kelo was decided, the Institute for Justice “found that 5783 properties ha[d] been [either] threatened or condemned for private commercial development, roughly equal to the number of such condemnations in the five years preceding Kelo.”²⁷¹ Scholars also found that this Kelo-authorized “private involvement in the exercise of eminent domain” increased the risk of corruption and threat of relocation.²⁷²

Berman serves as another notable example. Over 97% of the people “forcibly removed from their homes”²⁷³ were Black—all for the declared sake of “public safety, public health, morality, peace and quiet, law and order.”²⁷⁴ Post-Berman, “public works projects [of the] 1950s and 1960s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland.”²⁷⁵ And in 1981, “urban planners in Detroit, Michigan, [used eminent domain to] uproot[] the largely ‘lower-income and elderly’ Poletown neighborhood for the benefit of the General Motors Corporation.”²⁷⁶

So, what will Brinkmann’s impact be? While it is uncertain to what extent it will inform the actions of governmental entities, the impact will certainly not be a societal positive. Instead, it will continue its catastrophic trajectory because Brinkmann encourages, and even rewards, municipalities to lie about their intentions behind condemnation decisions.

CONCLUSION

Sometimes there are more questions than answers, but sometimes asking good questions is better than any answer—an endeavor that is by necessity limited in scope and applicability. And perhaps, this is the case here. The Brinkmann decision raises a lot of questions, ranging from the Brinkmann majority’s disregard of their own Goldstein precedent to a likely misinterpretation of Kelo, which cost the Brinkmanns their lot.

But Brinkmann also sparks an important conversation concerning what could and should be employed instead of the Brinkmann rule. After examining decisions rendered by the Connecticut Supreme Court and the Seventh and Ninth Circuits, all of which stand in opposition (in varying degrees) to Brinkmann, this Note envisions an alternative to the Brinkmann rule via the tripartite burden-shifting standard. But that is not all. This Note also demonstrates the failings of rational basis review, the Equal Protection Clause, and the animus doctrine when applied to addressing bad-faith takings.

The Takings Clause can destroy lives, but it can also build and improve the society in which those same lives exist. Similarly, the Takings Clause can also preserve freedom and even “empower[]” people “to shape and to plan their own destiny in a world in which governments are always eager to do so for them.”²⁷⁷ It is all a matter of perspective, but also—and critically—cultivating good law.

99 S. Cal. L. Rev. 405

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Anna Fein*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. English 2022, University of California, Los Angeles. Thank you to Professor Jacob Charles, Professor Jonathan Barnett, Lance Entrekin, and the wonderful Southern California Law Review staff for their thoughtful comments. Thank you also to my family for their continued love and support.

Quis Custodiet Ipsos Custodes: Labor & Privacy in the Age of Kidfluencers and the Internet’s Stage Mothers

March 2026March 2026Elinor J. Haddad*

INTRODUCTION

In 2022, a group of minors sued Tiffany Smith, mother and producer of prolific child influencer Piper Rockelle, and her corporation Piper Rockelle Inc. (“PRI”), alleging nineteen claims in total, nearly all for violations of either state tort law or the California Labor Code.¹ The minors had previously appeared in monetized content on Rockelle’s YouTube channel, which then boasted over 8.5 million followers,² as part of a group of children self-nicknamed “the Squad.”³ According to their complaint, they devoted long hours—in some cases more than twelve hours a day for seven days a week⁴—over three years to producing “hundreds” of “highly lucrative” videos but were never compensated, were denied meal and rest breaks while filming, and did not receive regular on-set education.⁵ Following the suit’s initial filing, YouTube demonetized Rockelle’s channel, and venues where Rockelle had upcoming tour dates canceled her appearances.⁶ In 2023, Smith countersued for $30 million, accusing plaintiffs and their parents of defamation, fraud, and extortion; before plaintiffs responded, Smith dropped her lawsuit.⁷ In March 2024, a Los Angeles Superior Court judge denied Smith’s motion for summary judgment, thus scheduling the case for trial.⁸ By October 2024, the parties had settled for $1.85 million.⁹

The suit illustrates the potential for severe damage inherent in the world of child influencers—a world that is, as of now, largely unregulated. The plaintiffs in the suit, and Rockelle herself, represent a common demographic among child influencers (“kidfluencers”): children between ten and sixteen years of age with public, monetized accounts on large social-media platforms like YouTube, Instagram, and TikTok, and talent and training in skills like dancing and singing as well as video editing and other skills required for content creation. Between 2017 and 2020, the plaintiffs appeared in content on Rockelle’s YouTube channel and on her accounts on other platforms; while Rockelle’s early postings were relatively innocuous (videos with titles like “My trip to the Los Angeles Zoo”¹⁰ and “Getting a pet turtle!!!”¹¹), the channel’s tone quickly took a questionable turn, with videos featuring children performing skits, challenges, and pranks in various stages of undress and in suggestive situations accompanied by clickbait thumbnails and titles¹² such as “24 HOURS HANDCUFFED to my ‘BOYFRIEND’ ” (featuring a then-ten-year-old Rockelle),¹³ “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌,”¹⁴ and “Asking STRANGERS To Be My BOYFRIEND Challenge **1 DATE = $100** ❤️💵” (featuring a then-twelve-year-old Rockelle).¹⁵

Using the Piper Rockelle lawsuit (“the PRI lawsuit”) as a case study,¹⁶ this Note will focus on the growing number of kidfluencers and the need for standardized, federal laws ensuring their fair labor conditions and preservation of personal privacy. In particular, this Note will discuss the inadequacy of federal and state regulation of two forms of exploitation that present concerns in the kidfluencer context: (1) labor (exploiting a child’s work without compensation, meaningful consent, or regulation) and (2) privacy (exploiting a child’s image or likeness without compensation and meaningful consent).¹⁷ Part I of this Note presents an overview of the kidfluencer phenomenon and the evolution of stage parents from vaudeville and the early motion picture industry to the Internet and social media. Part II describes kidfluencers’ vulnerability to labor exploitation, discussing how measures protecting child performers remain largely unavailable to kidfluencers and require expansion to cover this new demographic of child workers. Part III details the rampant exploitation of kidfluencers’ privacy and analyzes how the increasing legal spotlight on protecting children as social-media users has yet to acknowledge kidfluencers’ privacy and publicity interests and must do so to adequately protect them. Part IV proposes that, in addition to enacting laws to protect the labor and privacy rights of kidfluencers, Congress should empower social-media platforms as enforcers of kidfluencer laws and impose liability on platforms that host content produced in violation of these recognized kidfluencer rights. Ultimately, this Note presents a holistic set of common-sense regulations, grounded in analogous, existing law, that are designed to close the critical gaps in kidfluencer protections as quickly and effectively as possible. This all-encompassing approach—covering both privacy and labor—to regulating children in monetized content is essential given the pervasiveness of their online presence and the reality of ever-advancing online technology that is here to stay.

I. THE ARRIVAL OF KIDFLUENCERS

The influencer economy is worth over $250 billion worldwide¹⁸ and is expected to swell to $480 billion before the year 2030.¹⁹ U.S. brands spend more than $5 billion on influencers each year.²⁰ Massive content-sharing platforms like YouTube, Instagram, and TikTok host millions of influencers who then share content to millions more subscribers.²¹ On YouTube, influencers creating and sharing videos on their “channels” earn revenue based on the number of views their videos generate. When a YouTube channel is monetized, YouTube collects forty-five percent of advertising revenue from the creator’s videos, and the creator receives the remainder.²² With this formula, top creators earn tens of millions of dollars each year—and kidfluencers with at least one million followers can earn $10,000 or more for each sponsored post they share.²³ Before the onset of the PRI lawsuit, PRI made between $4.2 million and $7.5 million annually from social-media advertising alone, and the PRI plaintiffs averaged up to $28,000 per month in YouTube revenue.²⁴

And kidfluencers are a fast-growing demographic in monetized social-media content.²⁵ Social-media accounts listed in children’s names but managed by parents (typically with a moniker like “Managed by Mom” in the account biography) feature young children almost exclusively, with little to no regulations governing the children’s compensation, working conditions, or content output. Thus, children can work extensive hours, receive little to no formal schooling, and have their intimate details shared on the Internet at-large with essentially no recourse and no safeguarding of their earnings from parents or other adults controlling their accounts. Many kidfluencer accounts boast massive followings, with subscribers in the hundreds of thousands or even millions, and the financial payout is huge. Roughly a century ago, states began regulating labor conditions for child performers, many of whom were pushed into the entertainment industry by their parents and subsequently experienced extensive exploitation.²⁶ Now, social media has given stage parents a new arena—one with novel and potentially catastrophic dangers if left unchecked.

A. A Brief History of Stage Mothers

The concept of “stage parents” and “stage mothers” enjoys a long and controversial history in American culture.²⁷ Early discussion of overbearing and even abusive parents pushing their children into careers on stage and in film arose from personal anecdotes of early film stars. Legendary movie star Judy Garland often recounted growing up on a vaudeville stage in the 1920s and 1930s, and the intensity with which her mother, Ethel Gumm, pushed her to perform; in a 1967 interview, Garland, recalling her early days of performing onstage, stated, “[My mother] would sort of stand in the wings . . . and if I didn’t feel good, if I was sick to my tummy, she’d say, ‘You get out and sing, or I’ll wrap you around the bedpost and break you off short!’ So, I’d go out and sing.”²⁸ Garland, cemented in American culture by her performance as Dorothy in 1939’s The Wizard of Oz, later characterized her mother as “the real Wicked Witch of the West” and described how Ethel began giving her pills to increase energy or to promote sleep before Garland’s tenth birthday.²⁹

Nearly a century and the passage of much legislation for child performers later, stage parents like Ethel Gumm remain, motivated by many of the same interests—money, fame, power, attention—as their twentieth-century counterparts. These interests can easily collide with children’s needs, and the development of laws protecting child actors demonstrates a commitment by the traditional entertainment industry to limiting the effects of such conflict. Today, child actors in multiple states, including California and New York, and members of entertainer unions like SAG-AFTRA have protections that Judy Garland’s generation did not, such as guaranteed access to wages, adequate education, and limitations over working hours.³⁰ These regulations acknowledge both the potential conflict of interest between stage parents and child performers as well as the reality of children as a key and enduring presence within the entertainment industry. But while child actors today are more protected from parents who squander their earnings or force them to work oppressively long hours, children are still at the mercy of their parents as to whether they ultimately pursue an entertainment career in the first place and, if they do, the relentlessness of that pursuit.

In 2022, former child star Jennette McCurdy released her memoir I’m Glad My Mom Died. Chronicling her ascent from poverty to fame on the highly successful Nickelodeon show iCarly, McCurdy detailed her late mother’s longstanding obsession with McCurdy’s success as a child actor, regardless of McCurdy’s own disinterest in such a career. Recalling the initial signing meeting with her first agent, McCurdy wrote,

“It’s important that Jennette wants to act, in order for her to do well,” [the agent] says.

“Oh, she wants this more than anything,” Mom says as she signs on the next page’s dotted line.

Mom wants this more than anything, not me. [Auditioning] was stressful and not fun, and if given the choice, I would choose to never do anything like it again. On the other hand, I do want what Mom wants, so she’s kind of right.³¹

McCurdy emphasized her lack of agency and meaningful choice in embarking on her career as an actor, framing her mother’s eventual death from cancer as the catalyst that allowed McCurdy to leave behind the career she never wanted—though she could not as easily escape her fame.³²

When I was six years old, she pushed me into a career I didn’t want. I’m grateful for the financial stability that career has provided me, but not much else. I was not equipped to handle the entertainment industry and all of its competitiveness, rejection, stakes, harsh realities, fame. I needed that time, those years, to develop as a child. To form my identity. To grow. I can never get those years back.³³

B. Reality Television Bridges the Gap from Film and Television to the Internet

In 2011, the Lifetime reality series Dance Moms premiered, unwittingly marking the beginning of a new era and a new medium for twenty-first-century stage parents. Following a group of young competitive dancers and their intense and argumentative mothers, Dance Moms became an overnight sensation and launched the show’s young dancers into stardom. In the show’s early seasons, the dancers’ mothers spoke of their hopes for their children to achieve careers on a Broadway stage and in film.³⁴ In 2011, Instagram was in its infancy and the advent of TikTok was years away; a handful of hit reality shows featuring children, like Jon and Kate Plus 8 and the ill-fated 19 Kids and Counting,³⁵ existed but the children on those shows were not positioned adjacent to entertainment careers and also had not built independent followings or fanbases—the concept of kidfluencers was entirely new. Dance Moms changed the game.³⁶

Today, the original Dance Moms dancers are in their early to mid-twenties and their primary careers are as social-media influencers.³⁷ Instead of becoming “stars” in a traditional sense on stage and in film, the Dance Moms girls achieved stardom as themselves, beloved by young fans of their show who flocked to follow them on social media as Instagram and other platforms simultaneously took off.³⁸ While the first Dance Moms dancers did not begin their time on the show imagining kidfluencer fame, cast members during the show’s later seasons arguably did. In 2016, a group of younger dancers joined the now-wildly successful Dance Moms cast; entering the show in the post-Instagram and Musical.ly (TikTok’s forerunner application) world, these new dancers had social-media pages ready when the show’s global audience began following them in droves. Now teenagers, many members of Dance Moms’ second generation work as kidfluencers today³⁹—and the world of kidfluencers and reality child stars is a small one. Dance Moms’ second generation includes seventeen-year-old Lilliana Ketchman and eighteen-year-old Elliana Walmsley. Ketchman was named by the PRI plaintiffs as a perceived competitor to Rockelle, “anger[ing]” Smith; the plaintiffs believed Smith subsequently used “dirty tactics” to cause a significant decline in Ketchman’s followers, viewership, and revenue in January 2021.⁴⁰ Meanwhile, Walmsley is a former member of Rockelle’s Squad, though she was not a party to the PRI lawsuit.⁴¹

Image 1. Former Dance Moms Cast Member and Current Influencer Kendall Vertes’s Instagram⁴²

Image 2. Former Dance Moms Cast Member and Current Influencer Chloé Lukasiak’s Instagram⁴³

Barely a decade after Dance Moms’ premiere and Instagram’s launch, kidfluencing is now eclipsing the once-well-trodden paths to child stardom found on television and in film. Piper Rockelle exemplifies this phenomenon:

Paparazzi don’t wait outside Piper’s fuchsia-painted mansion in the San Fernando Valley, but among a young, YouTube-fixated demographic, the ebullient brunette is idolized. As a rising star on the most-watched video-content platform of her generation, Piper bypassed the traditional paths of Nickelodeon and Disney to become a millionaire through the monetization of her social media content.

Propelled by the force of millions of likes and heart emojis, Piper was making between $4.2 million and $7.5 million a year before the Squad’s lawsuit. Her YouTube videos had amassed over 1.87 billion views, and companies such as NBCUniversal, Disney and Amazon were paying her to promote their products on Instagram and TikTok. Super-VIP tickets on her tour—a live variety show that trades on the Squad’s online personas—went for $599.99. She was also selling merchandise on her website, offering personalized greetings via Cameo and making music. She has released seven singles.⁴⁴

The PRI “empire[],” much like many YouTube money machines, “was built at home.”⁴⁵ Smith’s live-in boyfriend, Hunter Hill, also a defendant in the PRI lawsuit, filmed and edited the Squad’s videos in the Smith home, and Smith planned video content and coordinated filming schedules for Squad members.⁴⁶ Initially, Rockelle and other members of the Squad sought success as actors on stage and in film; after her social-media channels took off, however, Rockelle narrowed her focus solely to kidfluencing, while Smith “strongly discouraged” other Squad members from continuing to pursue work beyond their growing YouTube empire.⁴⁷

And though stage parents like Smith are pursuing fame for their children in a new medium, the same conflicts of interest between parents and children that persist in film and television recur in the Internet-child-stardom era. In the early 2000s, the challenges of living in poverty colored Jennette McCurdy’s high-stress journey into the television industry; just a few years later, PRI would allegedly take advantage of children also coming from limited means in order to profit from their involvement in the Squad. Said one PRI plaintiff, “[s]ingle mothers using YouTube to support the family—there’s a lot of those in the [Squad’s families].”⁴⁸

While the PRI lawsuit is seemingly unique (as of now) in terms of its size and the breadth of the allegations at-issue, Rockelle and the Squad are in good company as part of a vast, bankable movement of kidfluencer content creators. Kidfluencer accounts are undeniably popular: a 2019 study revealed that videos featuring a child younger than thirteen-years-old receive three times the views garnered by videos without children.⁴⁹ And critics of the kidfluencer phenomenon say that platforms like YouTube, as well as brands that partner with kidfluencers for paid product placements, are deliberately skirting child labor laws because of kidfluencer accounts’ popularity and payoff; in their view, the legal gray area surrounding kidfluencers enables platforms and brands to make “billions” from kidfluencer content while avoiding the costs and coordination that film and television productions are legally required to undertake to work with child performers.⁵⁰ YouTube currently makes it fairly easy, with strategic use of algorithmic tools like hash-tagging, to achieve monetized status, requiring that channels reach just 1,000 subscribers and 4,000 viewing hours within twelve months to become monetized; as of last year, YouTube hosted roughly two million monetized accounts.⁵¹

Between YouTube, Instagram, and TikTok, opportunities for children to build a massive online presence—and for adults to make serious money off their backs—are exploding. As the last century of developing adequate legal protections for child actors demonstrates, this level of financial promise coupled with children as the key moneymakers is a recipe for exploitative disaster. Now that the recipe has found a new home on the Internet, the potential for lifelong damage to the children behind the money machines has reached devastating levels. The baby steps that some lawmakers are beginning to take toward protecting, primarily, kidfluencers’ compensation are, to be sure, essential regulatory efforts. But the reality of the kidfluencer world demands a much more all-encompassing approach—one that treats kidfluencers as the professionals they are and treats the Internet as the uniquely permanent and wide-ranging medium it is. Making parents the unchecked shot-callers over their children’s labor conditions and privacy is an untenable arrangement because of the potential conflict of interest inherent in parents choosing between substantial monetary gain and their children’s best interests. Kidfluencers and the Internet (much like child film stars and the motion picture industry as seen a century ago) are not going anywhere. So, lawmakers must get serious about how to regulate them.

II. REGULATING THE LABOR OF KIDFLUENCERS

While federal law does provide some protections for child labor, it expressly exempts child performers from those protections. Thus, to the extent that child entertainers receive protection from labor exploitation, those protections come either from state law or from unions for media professionals such as SAG-AFTRA. However, summarizing what relevant federal law is present in this area helps contextualize the gaps in child entertainer regulations that state laws and unions have had to attempt to fill. And while neither state laws (for the most part) nor unions protect kidfluencers’ labor rights, they do protect child entertainers and thus provide helpful and relevant models for what effective legal protections for kidfluencers’ labor should entail.

Only a handful of states have laws governing child entertainers, and the most stringent laws exist in California and New York; both states limit child entertainers’ working hours, regulate their education, mandate their on-set supervision and advocacy, and protect their wages. All of these regulations should be expanded to cover kidfluencers; further, because kidfluencers primarily work at home and thus are not restricted by a need to live within range of entertainment hubs like Los Angeles and New York City, these regulations should apply to kidfluencers in every state through federal legislation. Recent legislation in California, Illinois, Utah, and Minnesota protecting primarily kidfluencers’ wages, while helpful, is but one small piece of the comprehensive regulatory scheme needed to adequately protect kidfluencers’ labor.

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

In 1938, the Fair Labor Standards Act (“FLSA”) marked a new era for regulation of child workers. Setting the minimum age of employment for most non-agricultural work at sixteen,⁵² the act came on the heels of the United States Supreme Court striking down laws aimed at regulating commercial goods produced by child workers in Hammer v. Dagenhart⁵³ and the Child Labor Tax Case.⁵⁴ These decisions were but one component of a long struggle by labor reformers to protect child workers—by the twentieth century, reformers heavily emphasized how child labor led to extensive health problems and the deprivation of adequate education.⁵⁵ In developing their platform regarding child labor, advocates also had to reckon with the difficult but inescapable reality that many child workers came from immense poverty. Some reformers lobbed heavy criticism at parents who they claimed were “too lazy to work” and had “become accustomed to subsist[ing] by their children’s labor.”⁵⁶

The FLSA still has multiple exemptions, some critical to child entertainers and kidfluencers alike: the FLSA exempts from regulation “a parent employing his own child”⁵⁷ and does not apply to “any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions.”⁵⁸ The latter exemption is known as the “Shirley Temple Act” because without it, the then-wildly popular child star would have disappeared from movie screens.⁵⁹ Further, the lawmakers behind the FLSA did not consider entertainment work especially hazardous or oppressive, unlike the dangerous factory and agricultural labor the FLSA was intended to address, and thus excluded minors in entertainment from coverage.⁶⁰ Due to this exclusion of child performers from federal regulation, labor rights for child performers fall under state law, and states have adopted a variety of protections (including, in seventeen states, no protections at all) for this demographic.⁶¹

2. SAG-AFTRA, States’ Approaches & the Coogan Law

Some of the most comprehensive protections for child entertainers come from SAG-AFTRA, the primary union for media professionals in the United States. SAG-AFTRA’s collective bargaining agreements with production companies require that companies adhere to the standards delineated in SAG-AFTRA’s contracts as well as applicable state law regarding employment of minors.⁶² Thus, SAG-AFTRA functions as the enforcer of its own standards for employing child performers; its collective bargaining agreements act as a bottleneck against potentially negligent or exploitative employment practices because production companies that are SAG-AFTRA signatories must comply with these standards in order to employ children with SAG-AFTRA membership.⁶³ SAG-AFTRA restricts the working hours of child entertainers working anywhere in the United States, stipulating that minors may not work before 5:00 a.m. or after 10:00 p.m. on days preceding a school day (and may not work after 12:30 a.m. on mornings of non-school days); SAG-AFTRA further limits total working hours per school day to four hours for children ages six to eight, five hours for children ages nine to fifteen, and six hours for children ages sixteen and seventeen.⁶⁴ School days for SAG-AFTRA contract purposes conform to the public school calendar for the district where the minor resides, and SAG-AFTRA requires that school-age minors receive an average of at least three hours of educational instruction on school days.⁶⁵ Minors between six months and two years old may work up to two hours while minors between two and five years old may work up to three hours; only preschool-age minors do not attend on-set school.⁶⁶

SAG-AFTRA’s protections for child actors’ compensation also conform to applicable state law, where present.⁶⁷ Originally passed in California in 1939, the Coogan Law now requires that fifteen percent of all minors’ earnings for entertainment work be placed in a blocked trust account (known as a “Coogan Account”) accessible only by the minor once they reach adulthood.⁶⁸ The law’s namesake, child actor Jackie Coogan, enjoyed a tremendously successful career in the 1920s after being discovered by Charlie Chaplin.⁶⁹ But despite Coogan’s millions of dollars in earnings as a child star, he only ever received a weekly allowance of $6.25 from his mother until, when Coogan turned twenty-one, she ultimately refused to ever turn over more of his earnings to him.⁷⁰ Though intended to prevent exploitation like that Coogan suffered from befalling future young actors, the first iteration of the Coogan Law had critical gaps, including merely permitting, rather than mandating, trust accounts for child performers.⁷¹ It was precisely these gaps that enabled the parents of Shirley Temple herself to devote her earnings entirely to supporting their family of twelve even after the initial passage of the Coogan Law; after her acting career slowed down in her teenage years, the generation-defining star’s “only assets were a few thousand dollars and the deed to her dollhouse in the back yard [sic] of her parents’ Beverly Hills home.”⁷² California closed the gaps in its Coogan Law in January 2000 following advocacy by SAG-AFTRA for unequivocal legal recognition that minors’ earnings from entertainment work are their own.⁷³ Currently, New York, Illinois, Louisiana, and New Mexico all have trust-account mandates for child actors comparable to California’s Coogan Law.⁷⁴

Meanwhile, some states also have laws concerning child performers’ labor conditions in addition to compensation requirements and union protections. California mandates a maximum eight-hour workday for child entertainers in addition to three hours of on-set education for each weekday that children work; California also requires that a state-licensed teacher or welfare worker be present at all times on sets where child performers are working,⁷⁵ and that adults obtain permits before employing children and ensure that a minor’s parent or guardian is within their sight and hearing range at all times that the minor is on set.⁷⁶ In New York, employers of child entertainers working three or more consecutive days must provide a credentialed on-set teacher to ensure that state educational requirements for child entertainers are met.⁷⁷

3. When Does the Home Become a Set?

State laws protecting child entertainers, however well-established, largely do not extend to kidfluencers—even in states like California, which has very strict regulations for child performers⁷⁸ (PRI is located in Los Angeles and the Squad’s videos were filmed there⁷⁹). If we apply California and SAG-AFTRA’s labor regulations for child actors to PRI and the Squad, PRI—sometimes allegedly, other times admittedly—fell far short.⁸⁰ Smith did not obtain permits to work with the minors in the Squad.⁸¹ Some PRI plaintiffs claimed they worked up to twelve hours per day, seven days a week, without rest and meal breaks and without compensation.⁸² The mother of two plaintiffs, sisters, worried that one of her daughters “was falling behind in school because she wasn’t getting enough sleep” due to Smith’s demanding filming schedule.⁸³ Some of the plaintiffs’ parents alleged that Smith “regularly forbade other adults from being on set”;⁸⁴ Smith reportedly only ever “briefly” hired an on-set teacher for Squad members and “was uninterested in the children’s education,” even though none of the minors attended traditional in-person school during their years filming.⁸⁵ After some of the plaintiffs’ parents hired a private tutor to work with the minors in Smith’s guesthouse, Smith “barged” into the guesthouse mid-lesson, “screaming” that the child currently studying needed to “report to set immediately” and that “she didn’t care whether the tutor’s hour wasn’t up.”⁸⁶ The tutor left her position teaching the Squad after the incident.⁸⁷ Plaintiffs also reported that Rockelle herself had significant educational gaps, claiming Rockelle, who has only ever been homeschooled,⁸⁸ had trouble reading and “never” did schoolwork.⁸⁹

Commenting on the allegations in the PRI lawsuit regarding failure to provide compensation as well as the maintenance of an oppressive work environment, plaintiffs’ attorney Matthew Sarelson remarked, “Imagine if these kids had been on a movie set for Lionsgate . . . . People would go to jail if this had happened at a studio.”⁹⁰ But kidfluencers occupy a legal gray area existing somewhere between professional child performers and the kids-next-door getting together to make a funny video.⁹¹ And the PRI plaintiffs assert that that legal gray area has given rise to a “Wild West atmosphere of content creation” where adults can push children into extensive, high-profile content creation with little to no oversight.⁹²

Throughout the PRI lawsuit, Smith emphasized that she “did not view her home as a workplace” nor herself as the plaintiffs’ employer; she described the Squad’s activities as “ ‘kids get[ting] together voluntarily to collaborate on making videos,’ ” a far cry, in her view, from a professional studio environment that would necessitate her compliance with state child labor laws.⁹³ Smith’s lawyer commented, “There is tremendous uncertainty about what labor laws apply in the context of filming a YouTube video at home, with an iPhone . . . . At what point is that a professional production?”⁹⁴ Meanwhile, Sarelson argued that “PRI should be treated no differently than a traditional production company” and expressed “hopes [that] the lawsuit sparks change in the social media space.”⁹⁵ Some of PRI’s activities—including using a professional camera to film content and posting audition notices for young actors to film with Rockelle—could indicate that the corporation was effectively operating as a professional production company.⁹⁶ But currently, no federal legislation exists delineating the line between making home videos and shooting professional social-media content.

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A handful of states are beginning to enact labor protections for kidfluencers, underscoring the desire and need for a comprehensive, federal approach to kidfluencer regulation.⁹⁷ In July 2025, Minnesota enacted some of the most significant kidfluencer regulations so far: not only does the state now mandate protected trust accounts to safeguard kidfluencers’ earnings, but it also prohibits children less than fourteen years old from appearing in monetized content at all.⁹⁸ Instead of designing its law solely as a means of “legitimizing” kidfluencers as akin to child entertainers, University of Minnesota Law School Dean William McGeveran said Minnesota “ ‘set [its law] up as almost a child labor law. . . . It’s about kids needing to be able to be paid for work that they do . . . . And if they’re 13 and under, kids can’t work in the ice cream shop and they can’t work in their parents’ content creation either.’ ”⁹⁹ Minnesota’s statute does not enshrine any further labor regulations for kidfluencers over fourteen beyond protecting their earnings.

For the other six states that now protect kidfluencers’ labor, their measures are limited to regulating kidfluencers’ compensation. In July 2024, Illinois became the first U.S. state to enact laws expressly protecting kidfluencers’ earnings.¹⁰⁰ Content creators in Illinois must now set aside a portion of earnings in a protected trust account for all minors age sixteen and under who appear in at least thirty percent of their monetized content.¹⁰¹ Illinois Senator Dave Koehler, who introduced the law, took action after Shreya Nallamothu, a fifteen-year-old high school student in his district, alerted him to the issue of young children being featured extensively online with no labor protections for them in place.¹⁰² “This new digital age has given us tremendous opportunities to connect with one another, but it’s also presented legal issues that have never existed before,” said Koehler.¹⁰³ “We need to work with our children to see the problems they face and tackle them head-on before any further harm is done.”¹⁰⁴

The Illinois law protects earnings for minors under the age of sixteen while stipulating that minors under sixteen who produce their own videos are not considered “vlogger[s]” subject to the compensation and record-keeping requirements established by the law.¹⁰⁵ The law explicitly includes “famil[ies]” in its definition of “vlogger[s],” thus requiring parents who produce content featuring their own children (as well as any other children) to set aside the minors’ earnings if their inclusion reaches the specified threshold. The law also amends Illinois’ Child Labor Law by allowing teenagers who are at least eighteen years old to take legal action against their parents for failing to compensate them in accordance with the new requirements.¹⁰⁶ In response to the law, University of Alabama professor of digital media Jessica Maddox called the legislation “long overdue” and pushed for other states to take similar steps as well as expand protections to allow eighteen-year-olds to petition for the removal of social-media content that features them.¹⁰⁷ Emphasizing the need for regulations that adequately measure up to the reality of the kidfluencer phenomenon, Maddox commented:

[Kidfluencing and vlogging] are actual jobs, possible ways of earning income, that need protection . . . . Since there aren’t unions, there isn’t systemic protection in terms of laws, that is why Illinois law is super important for setting the precedent that this type of labor needs to be protected, especially for minors.¹⁰⁸

Meanwhile, on September 26, 2024, California Governor Gavin Newsom signed legislation expressly expanding the state’s Coogan Law to cover kidfluencers sharing content on YouTube and similar platforms.¹⁰⁹ The bill in question, AB 1880, defines “content creator” as “an individual who creates, posts, shares, or otherwise interacts with digital content on an online platform,” including “vloggers, podcasters, social media influencers, and streamers”; “online platform” is defined as “any public-facing website, web application, or digital application.”¹¹⁰ Regarding Governor Newsom’s support for the bill, bill author Assemblymember Juan Alanis remarked:

I thank Governor Newsom for signing AB 1880 and for his commitment to addressing the unique challenges minors face as online content creators in the rapidly growing digital entertainment industry. Child content creators deserve the same protections under the Coogan Law as their counterparts in traditional entertainment. With this bill, California takes a significant step in protecting the financial rights and well-being of child online influencers by extending critical protections against exploitation and ensuring they receive a fair share of earnings from their content.¹¹¹

Former child actor and successful musician Demi Lovato championed the bill as a critical step toward “grant[ing] agency” toward kidfluencers upon reaching adulthood.¹¹²

Signed alongside AB 1880 was SB 764,¹¹³ the Child Content Creator Rights Act (“CCCRA”), authored by Senator Steve Padilla.¹¹⁴ The CCCRA stipulates that video bloggers (“vloggers”) engage a minor “in the work of vlogging” when at least thirty percent of the vlogger’s monetized visual content includes “the likeness, name, or photograph of the minor.”¹¹⁵ Vloggers engaging minors in vlogging work under the definition of the CCCRA are required to keep detailed records of the minor’s age during the vlogging period and the extent of their appearance in and compensation for monetized content.¹¹⁶ Contracts for vlogging work between a minor and their parent must be approved by a court to avoid application of the bill’s terms; “[i]n determining whether to approve such a contract, the court shall consider whether the terms of the contract are at least as beneficial to the minor as the compensation the minor would otherwise receive under [the CCCRA].”¹¹⁷

And as of May 2025, Utah now also mandates protected trust accounts for kidfluencers.¹¹⁸ With similar provisions to those in California and Illinois, Utah’s law also lays out procedures for managing kidfluencers trusts and also requires that content creators “inform a minor’s parents that the minor is featured” in their content if, as in the PRI lawsuit, the creator is not themselves the minor’s parent.¹¹⁹ In the same vein, Virginia, Arkansas, and Montana all enacted kidfluencer laws in 2025, and each state focused its labor protections for kidfluencers on compensation safeguards, mandating Coogan Account-esque trusts for kidfluencers appearing in a certain percentage of creators’ content.¹²⁰

As lawmakers in California, Minnesota, Illinois, Utah, Arkansas, Montana, and Virginia have recognized, kidfluencing is a job, plain and simple. It demands the same safeguards against labor exploitation that are accepted throughout the United States for children in traditional entertainment jobs, along with additional protections that are necessary to address issues unique to kidfluencing. Thus, while the recent legislation in these states represents important progress, much more robust protections for kidfluencers—regulations modeled after California’s existing laws for child actors—are needed. Because of the geographic flexibility inherent in kidfluencer work, such protection is needed at the federal level to be fully comprehensive; further, kidfluencer regulations must not only mandate safeguards to compensation, but also ensure limits on working hours, guaranteed access to education, on-set supervision and advocacy, and the obtainment of permits to employ minors. As it stands today, even for kidfluencers now protected from financial exploitation in a handful of states, the rest of their working conditions remain largely unregulated—as does their privacy.

III. REGULATING THE PRIVACY OF KIDFLUENCERS

Growing up in the pop culture spotlight compromises a child’s privacy and reputation in ways that can be painful and enduring. As child actor Jennette McCurdy put it, “Growing is wobbly and full of mistakes, especially as a teenager—mistakes that you certainly don’t want to make in the public eye, let alone be known for for the rest of your life. But that’s what happens when you’re a child star.”¹²¹ And for kidfluencers, the extent to which their privacy and reputations are at stake is much greater. For Shirley Temple and Judy Garland, while the laws protecting them were still woefully inadequate, the personal information they shared with the public was limited to their performances as fictional characters, filmed on a soundstage by a camera that never followed them home. But for kidfluencers, the camera lives at home. Nothing is off-limits and every experience, every mistake, every embarrassment is potential content with dollar signs attached to it.

If labor regulations for kidfluencers are largely undeveloped, laws protecting kidfluencers’ privacy seem like less than an afterthought—perhaps even conceptually oxymoronic given that the point of kidfluencer content, in general, is to share children’s personal lives online. Even as lawmakers take steps to protect children as Internet users, kidfluencers are nowhere to be found in their policies. Though states have common law rights to privacy and publicity and a 1998 federal act regulates online platforms’ collection of children’s personal data, these rights can all generally be waived with consent—and for children, the consenting parties are their parents. Meanwhile, online platforms typically limit accounts to users aged thirteen and older, but given the numerous active kidfluencer accounts heavily featuring children under thirteen, platforms do not appear to restrict accounts that overwhelmingly feature children if the accounts are set up and managed by adults. These gaping loopholes in existing rights and policies allow kidfluencer accounts to thrive unchecked,¹²² leading to severe, long-term harm to and exploitation of kidfluencers that society is likely only beginning to reckon with.¹²³

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

The Children’s Online Privacy Protection Act of 1998 (“COPPA”) is the primary set of federal regulations concerning children’s online privacy, covering consent and notice requirements for online platforms and entities that collect personal data from children.¹²⁴ COPPA’s “primary goal . . . is to place parents in control over what information is collected from their young children online,”¹²⁵ and it focuses on protecting children as users of online platforms as opposed to children appearing in online content. COPPA requires the Federal Trade Commission (“FTC”) to regulate online collection of children’s data and was last amended in 2013 in an effort to keep up with advancing technology.¹²⁶ Kidfluencers are not explicitly covered by COPPA or any other federal law.

As a protective measure for children who are merely consumers of online content, COPPA is reasonably comprehensive (though it needs continuous updates to remain effective). Its critical failure as a protective measure for kidfluencers, however, lies in its parental-consent-based structure—and in the fact that it makes no actual mention of kidfluencers at all. COPPA only applies to children under thirteen and requires that online entities obtain parental consent before collecting children’s personal data from children. COPPA prohibits “unfair and deceptive acts and practices in connection with the collection and use of personal information from and about children on the Internet.”¹²⁷ The act applies to websites or online services “directed to children”; in determining whether a given platform qualifies under this standard, the FTC considers the platform’s “subject matter,” “use of . . . child-oriented activities and incentives,” and “presence of child celebrities” as among relevant factors.¹²⁸ COPPA defines “collection” as “the gathering of any personal information from a child by any means, including . . . [r]equesting, prompting, or encouraging a child to submit personal information online,” “[e]nabling a child to make personal information publicly available,” and “[p]assive tracking of a child online.”¹²⁹ “[P]ersonal information” under COPPA includes identifiers like first and last name, physical address, and a “photograph, video, or audio file where such file contains a child’s image or voice.”¹³⁰ “Child” under COPPA includes only “individual[s] under the age of 13.”¹³¹

Before online entities collect personal data from a child, COPPA requires that the child’s parent receive adequate notice about the information collected and its intended use and that the parent consent to such collection.¹³² Online platforms also must provide parents with a “reasonable means . . . to review the personal information collected . . . and to refuse to permit its further use or maintenance.”¹³³ COPPA specifies that any means employed for parents to review collected information cannot be “unduly burdensome” to the parent and asserts that parents have the right to “at any time . . . refuse to permit . . . further use or future online collection of personal information . . . and to direct the [online platform] to delete the child’s personal information.”¹³⁴ Platforms have the right to terminate a child’s use of its services if the child’s parent revokes consent and requests deletion of collected information.¹³⁵ Platforms also must only retain children’s information for “as long as is reasonably necessary to fulfill the purpose for which the information was collected.”¹³⁶

Lastly, COPPA includes safe harbor provisions, allowing online entities that follow approved sets of self-regulatory guidelines to be deemed compliant with COPPA and eligible for safe harbor treatment shielding them from potential liability.¹³⁷

ii. COPPA 2.0

In May 2023, U.S. Senator Edward Markey, the author of COPPA, alongside Senator Bill Cassidy, introduced a new version of COPPA, “COPPA 2.0.”¹³⁸ After the Senate Commerce, Science, and Transportation Committee unanimously advanced COPPA 2.0 in July 2023, the Senate passed the bill in August 2024.¹³⁹ Senators Markey and Cassidy then reintroduced the bill in March 2025.¹⁴⁰ In early 2024, COPPA 2.0 cosponsor Senator Ted Cruz described the bill’s purpose as ensuring that no child leaves behind a digital footprint:

When Congress first passed the Children’s Online Privacy Protection Act, Americans were using dial-up to search “Ask Jeeves” instead of Google. Now, kids can access the Internet in the palm of their hands, and tech companies routinely surveil and target America’s youth. I’m proud to have worked with Sens. Markey, Cantwell, and Cassidy on bipartisan legislation to empower parents to safeguard their children’s online privacy and hold tech companies responsible for keeping minors safe from data collection. Every child deserves to grow up free of a digital footprint, and this bipartisan legislation is one step closer to achieving that goal.¹⁴¹

Championed as a means of bringing “children and teen’s online privacy standards into the 21st century,”¹⁴² COPPA 2.0 enumerates additional categories of online platforms, including mobile applications,¹⁴³ and forms of personal data, including biological and physiological information.¹⁴⁴ Most significantly, however, COPPA 2.0 creates an entirely new class of protected minors: teenagers between thirteen and sixteen years old.¹⁴⁵ Under COPPA 2.0, teenagers—not their parents—consent to collection of their own personal data and are empowered to request review of collected data as well as revoke consent for data collection.¹⁴⁶ However, COPPA 2.0 does not permit teenagers to withdraw consent for their own data that was collected with their parents’ consent before they turned thirteen.¹⁴⁷ The omission of this right, under either iteration of COPPA, is particularly sobering in the kidfluencer context because it prevents kidfluencers from compelling platforms to remove their data, collected before age thirteen, in the event that their parents cannot or will not do so.

2. Online Platforms’ User Age Restrictions

The largest social-media platforms typically require users to be at least thirteen years old,¹⁴⁸ though caveats to this rule exist. YouTube’s terms of service specify that users “must be at least 13 years old to use [YouTube]; however children of all ages may use [YouTube and YouTube Kids] . . . if enabled by a parent or legal guardian.”¹⁴⁹ TikTok requires users to be at least thirteen years old,¹⁵⁰ and TikTok’s settings default accounts associated with minor users to private mode; TikTok users ages sixteen and seventeen can choose to make their accounts public.¹⁵¹

Instagram also requires that users be at least thirteen;¹⁵² on September 17, 2024, Instagram began defaulting all accounts created by users who indicated they are under eighteen to private mode.¹⁵³ These changes, which Instagram says are being “rolled out on an individual basis,”¹⁵⁴ are part of Instagram’s new “Teen Accounts” initiative promoted as a means of increasing safety for minors using the platform.¹⁵⁵ Under the “Teen Accounts” setup, users ages sixteen and seventeen can change the default privacy setting themselves to make their accounts public; minors under sixteen need their parents’ permission to do so.¹⁵⁶

It is not clear whether Instagram’s recent changes will affect accounts that feature minors but are at least ostensibly managed by an adult (as most kidfluencer accounts typically are); however, Instagram makes no mention of such accounts in its communications about this new measure, while stipulating that the “Teen Accounts” setup applies to “users.” Thus, even as platforms begin rolling out age restrictions, kidfluencer accounts continue to

occupy a gray area outside of the growing spotlight on child social-media users.

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

In the United States, the common law rights of privacy and publicity are “distinct” from one another and “intended to vindicate different interests,” though the latter initially evolved out of the former.¹⁵⁷ While the right of publicity enshrines the “right to control the commercial value of one’s identity,”¹⁵⁸ the right of privacy “protects one’s right ‘to be let alone.’ ”¹⁵⁹ The common law right of privacy comprises four tort causes of action: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation.¹⁶⁰

The common law right of publicity developed out of both the right of privacy and intellectual property law, and has existed formally in the United States since the 1970s.¹⁶¹ While the United States Supreme Court recognized the existence of the right of publicity in 1977 in Zacchini v. Scripps-Howard Broadcasting Co.,¹⁶² there is no federal right of publicity; rather, the right of publicity exists at the state level and is currently recognized in thirty-five states, including California.¹⁶³ The right of publicity stipulates that individuals have a common law right against appropriation of “the commercial value of [their] identity . . . without consent”;¹⁶⁴ inherent in the right is the recognition that “an individual’s likeness” is that individual’s “own property.”¹⁶⁵ The right of publicity is based on three core justifications: (1) the right to “reap the fruit of [one’s] labors,” connected to concerns about unjust enrichment;¹⁶⁶ (2) the “copyright-incentive theory” that the law must protect the individual’s persona so as to promote creative artistry; and (3) the need to protect “consumer[s] from advertising deception.”¹⁶⁷ Section 3344 of the California Civil Code (“section 3344”) codifies California’s common law right of publicity and prohibits use of another’s image or “likeness” for profit without consent.¹⁶⁸ For minors, however, it is precisely the element of “consent” that is likely to prove most challenging if and when section 3344 is invoked to protect their rights, for the law expressly recognizes consent by a minor’s parent or guardian as equivalent to the minor’s own consent.¹⁶⁹

While the PRI lawsuit is currently unique, it illustrates how disputes over consent are likely to be central to any efforts to protect kidfluencers’ privacy and publicity rights under the common law and corresponding statutes. Three plaintiffs in the PRI lawsuit alleged violations of both section 3344 and California’s common law right of publicity;¹⁷⁰ Smith argued that she could not be liable under section 3344 and the common law precisely because the parents of the three plaintiffs had consented to the use of their children’s likenesses for commercial purposes on Rockelle’s channel.¹⁷¹ The plaintiffs disputed the fact of such consent¹⁷² and, in denying summary judgment in March 2024, the Superior Court of California ruled that these claims created issues of triable fact. Presumably, parents of the other eight plaintiffs had consented to use of their children’s likenesses for profit by Smith and PRI. And given that no plaintiff ever alleged that their parent had no knowledge whatsoever of their appearance in videos on Rockelle’s channel, it follows that the parents of the three children alleging publicity violations simply may not have given meaningful consent.

At least for situations like the ones in which these three PRI plaintiffs found themselves, requiring that online platforms verify meaningful consent and notice by kidfluencers or their parents to use of the child’s likeness in monetized content would counteract harm. But still further, the lack of application of recognized privacy and publicity rights to the kidfluencer context as well as the parental-consent waiver’s potential for conflicts of interest in that context is representative of the current limitations of existing laws. Looking at the plain language and spirit of the recognized rights of privacy and publicity alongside the raw reality of the kidfluencer phenomenon, as typified by the PRI lawsuit, it follows not only that our society and legal system should care about protecting kidfluencers’ privacy and publicity rights, but that we in fact do care about it. However, our society has not yet recognized how our concern for privacy and publicity rights implicates kidfluencers due to their novelty; and it would likely take years of litigation—and kidfluencer exploitation—before the common law could produce a legal framework appropriate for the competing claims of parents and kidfluencers to control over the child’s rights to privacy and publicity.

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

The Senate’s passage of COPPA 2.0 indicates a strong desire on the part of lawmakers to protect children online. But thus far, kidfluencers are missing entirely from that conversation—and to disastrous results. The types of information COPPA and COPPA 2.0 mention specifically as constituting “personal” data worth protecting—full names, online contact information, photographs, video and audio files containing a child’s image or voice, geolocation information, and more—are available in droves on kidfluencer accounts. And even as social-media platforms place age restrictions on users, kidfluencer accounts need only include a few words claiming to be managed by a parent in their description to post massive amounts of kidfluencer content to vast online audiences without constraint.

And kidfluencers’ audiences grow more dangerous as their accounts gain traction: in early 2024, the New York Times published an in-depth investigation into kidfluencers’ follower demographics, and the results are sobering. The proportion of kidfluencer account followers who are adult males grows “dramatically” as accounts grow in popularity.¹⁷³ While men made up approximately 35 percent of kidfluencer audiences overall, “[m]any [accounts] with more than 100,000 followers had a male audience of over 75 percent,” while some had over 90 percent.¹⁷⁴ The Times discovered men previously charged with or convicted of sex crimes among kidfluencer followers and found that some of these men participated in chat rooms with thousands of members, “treat[ing] children’s Instagram pages . . . as menus to satisfy their fantasies.”¹⁷⁵

While some parents are ignorant of the dangers posed by their children’s audiences,¹⁷⁶ others have grown “numb” trying to beat back the unending tide of suspicious followers.¹⁷⁷

“You are so sexy,” read one comment on an image of a 5-year-old girl in a ruffled bikini. “Those two little things look great thru ur top,” said another on a video of a girl dancing in a white cropped shirt, who months later posted pictures of her 11th birthday party.

For many mom-run accounts, comments from men—admiring, suggestive or explicit—are a recurring scourge to be eradicated, or an inescapable fact of life to be ignored. For others, they are a source to be tapped.

“The first thing I do when I wake up and the last thing I do when I go to bed is block accounts,” said Lynn, the mother of a 6-year-old girl in Florida who has about 3,000 followers from the dance world.

Another mother, Gail from Texas, described being desensitized to the men’s messages. “I don’t have as much of an emotional response anymore,” she said. “It’s weird to be so numb to that, but the quantity is just astounding.”¹⁷⁸

Still other parents are taking knowing advantage of this population: men in the chat rooms that the Times uncovered “frequently praise[d] the advent of Instagram as a golden age for child exploitation” and “trade[d] information about parents considered receptive to producing and selling ‘private sets’ of images.”¹⁷⁹ And among the allegations in the PRI lawsuit was a claim by one plaintiff that she accompanied Smith in mailing “several of Piper’s soiled training bras and panties to an unknown individual,” whereupon Smith told the plaintiff that “old men like to smell this stuff.”¹⁸⁰ Plaintiffs also alleged that Smith often “boast[ed] . . . about being the ‘Madam of YouTube’ ” and a “Pimp of YouTube,” and about making “kiddie porn.”¹⁸¹

Rockelle’s content and the PRI plaintiffs’ allegations paint a stark picture of the rampant sharing of invasive kidfluencer content carrying on unchecked throughout social media. For the members of the Squad, their experience working with PRI shares themes with Jennette McCurdy’s recollection of losing her childhood, autonomy, and privacy to child stardom. The Squad made countless videos centered around the group’s internal “crushes” and these videos performed much more strongly than the more innocent videos from Rockelle’s early days.¹⁸² Smith and Hill documented Rockelle’s first kiss on camera at age eleven¹⁸³ and filmed challenges among the Squad in which the minors competed to see who could kiss without stopping for the longest period of time.¹⁸⁴ The mother of two PRI plaintiffs, who is also Rockelle’s aunt, claimed that Smith sent Rockelle “a daily iPhone checklist cataloging the attention she needed to pay to her boyfriend, including sending him heart emojis [and] giving regular kisses, hugs and loving touches.”¹⁸⁵

In addition to the suggestive video content on Rockelle’s channel, the thumbnail images for the videos themselves are clearly set up to provide shock value and drive an increase in viewership. The mother of one PRI plaintiff alleged that Smith “often urged [plaintiffs] to pose more provocatively for thumbnail photo shoots,” ¹⁸⁶ and the lawsuit claimed that Smith, declaring that “sex sells,” “would frequently tell [the Squad members] to make ‘sexy kissing faces’ for thumbnails, to ‘push their butts out,’ to ‘suck their stomachs in,’ ‘wear something sluttier’ and would otherwise position [the p]laintiffs’ bodies in explicitly and sexually suggestive positions.”¹⁸⁷ As a result, minors are frequently depicted in provocative, revealing, or otherwise exploitative positions and situations in Rockelle’s thumbnails.

Image 3. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁸

Image 4. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁹

Image 5. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹⁰

Image 6. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹¹

The following YouTube video thumbnail images are merely described herein to protect the privacy of the minors featured in them:

Six teenagers (four female, two male), aged thirteen to seventeen, photoshopped to appear crowded together inside a bubble bath. The two male teenagers are shirtless, while the female teenagers appear to be wearing tank tops. The female teenager in the center has her hair arranged covering the straps of her tank top. The video is entitled “LAST TO LEAVE THE BUBBLE BATH!!” and has 2.3 million views.¹⁹²

Six teenagers (three female, three male), aged twelve to fifteen, arranged in co-educational pairs, each in one of three horizontal panels. Each female is touching her male counterpart. The male in the center panel is shirtless and his female counterpart is touching his bare torso. The video is entitled “LAST TO STOP MASSAGING THEIR BOYFRIEND WINS **Couples Challenge** 💆‍♀️💕” and has 1.9 million views.¹⁹³

One female aged eleven pictured in a cropped shirt pointing at her navel. A fake piercing is attached to her navel and a yellow circle is superimposed around her stomach while a zoomed-in image of her navel with the piercing appears in the right-hand side of the thumbnail. In the center of the thumbnail, the words “11 YEARS OLD!!” appear in large block lettering. The video is entitled “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌” and has 4.6 million views.¹⁹⁴

Two females, aged eleven and twelve, wearing fake “baby bumps” designed to look like a pregnant woman’s belly with their shirts raised to expose the bumps. The video’s description includes the note, “We are only 11 and 12 so [this is] a pretty crazy challenge for us.” The video is entitled “24 Hours Being PREGNANT Challenge in PUBLIC with TWINS **FUNNY REACTIONS** 🍼🎀” and has 14 million views.¹⁹⁵

According to the Los Angeles Times’ investigation of the PRI lawsuit, PRI’s videos chronicling the Squad’s “crushes” performed the best with Rockelle’s online audience.¹⁹⁶ This data combined with the New York Times’ findings regarding dangerous followers of kidfluencers reflect the significant market that exists for kidfluencer content that is sensitive at best and criminal at worst. If, in the words of COPPA 2.0 cosponsor Senator Ted Cruz, “[e]very child deserves to grow up free of a digital footprint,”¹⁹⁷ the law is currently failing kidfluencers to a staggering degree.

Further, even content that perhaps falls short of the hallmark suggestiveness of Rockelle’s brand victimizes kidfluencers—according to some kidfluencers themselves. In July 2023, Ruby Franke, former figurehead of the now-defunct YouTube channel “8 Passengers,” made headlines when her two youngest children, then ages nine and twelve, were found emaciated and wounded.¹⁹⁸ The children had been imprisoned and suffered months of abuse by both Franke and her business partner Jodi Hildebrandt.¹⁹⁹ Franke had stopped posting videos of her children over a year before, changing the name of her channel to “Moms of Truth” and posting solemn videos alongside Hildebrandt discussing parenting strategies and religion. But in the 8 Passengers heyday, Franke posted videos of her family of eight almost daily, chronicling her six children’s lives as they grew up in front of an audience of up to two million subscribers.²⁰⁰

By 2022, 8 Passengers viewers had started to grow concerned about Franke’s behavior—while the harrowing nature of Franke’s eventual abuse would have been impossible for viewers to predict, many subscribers began to notice that Franke showed an indifference, at best, to her children’s privacy.²⁰¹ Franke spoke at length in her YouTube videos about sensitive matters in her children’s lives; over the course of several videos, she described in-depth her and her husband Kevin’s decision to send their oldest son, then fourteen, to a behavioral modification camp in the Arizona wilderness. At one point, Franke played a voicemail for viewers that her son had left her while at the camp; her son cried throughout the voicemail as he described his experience.²⁰² Another video featured the parents taking their preteen daughter to buy her first bra. After Kevin asked his preteen, “How come you’re all embarrassed?” his oldest daughter Shari spoke up off camera: “Because you’re filming her and you’re her dad?”²⁰³

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

In October 2024, Shari, now twenty-one, addressed Utah’s Business and Labor Interim Committee; Utah Representative Doug Owens, who sponsored Utah’s subsequent bill regulating kidfluencers, introduced her testimony.²⁰⁴ Shari told lawmakers that she appeared before them “as a victim of family vlogging” in hopes of “shed[ding] light on the ethical and monetary issues that come from being a child influencer.”²⁰⁵ Her words highlighted how adequate compensation is but one small component of a comprehensive regulatory scheme to protect kidfluencers; her experiences as a kidfluencer also evoke many of the same themes as Jennette McCurdy’s retelling of her time as a child actor—in particular, the sense that the compensation she received, while helpful, was simply not worth the loss of her childhood.

[Being a kidfluencer] is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

. . . .

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income . . . . Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. . . . Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

. . . Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video for that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

. . . .

[A]s children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. . . . I did not realize the impact that filming as a child would have on me now. . . .

. . . .

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. . . . I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is.²⁰⁶

As Shari’s words illustrate, kidfluencing is currently too unchecked and too profitable—for parents—to be safe; thus, common-sense regulations aimed at deterring parents from overworking and oversharing their children for a financial payout are critically necessary. Just as labor protections for kidfluencers would be most effective if enacted at the federal level, protective measures for kidfluencers’ privacy need federal support. COPPA presents a key opportunity to begin developing that support by empowering kidfluencers to wield greater control over their digital footprints long term. While COPPA 2.0 takes an important step forward by expanding online privacy protections for teenagers, a truly comprehensive and effective COPPA amendment would also cover kidfluencers.

Protections for kidfluencers under a new version of COPPA would make explicit the right of teenaged kidfluencers to consent (or not) to sharing their personal information in monetized content and their right to revoke that consent at any time; this system would empower teenaged kidfluencers by allying them with the social-media platforms hosting their content—regardless of a parent’s role in producing kidfluencer content, platforms would require the kidfluencer’s consent before new content could be shared. For kidfluencers under thirteen, the consent that their parents give to sharing their children’s information and to commercial use of their likeness would become provisional only and revocable by the child upon reaching age thirteen. This change would allow kidfluencers to retroactively revoke consent to personal data their parents had agreed to share and compel platforms to remove it.²⁰⁷ And in situations where groups of kidfluencers create content together, as in the case of Piper Rockelle’s Squad, a kidfluencer-focused COPPA section would provide legal scaffolding to discourage casual content-sharing to large online audiences without informed consent by every parent or teenager involved. These amendments would be a first step in giving kidfluencers the privacy protections that they currently lack.

Four of the states that now regulate kidfluencers’ compensation have also taken steps in this direction: recent laws in Montana, Arkansas, Utah, and Minnesota include provisions aimed at empowering kidfluencers to request removal of content featuring them. In particular, Minnesota’s flat ban on children thirteen and under working as kidfluencers is well worth lawmakers’ consideration both in other states and at the federal level; such a ban would have automatically made much of the Squad’s early content unlawful due to the children’s ages, while also avoiding the challenges of enforcing more nuanced regulations. Yet gaps persist—Minnesota’s law provides that “[c]ontent containing the likeness of a child must be deleted and removed from any online platform by the individual who posted the content, the account owner, or another person who has control over the account when the request is made,” either by a kidfluencer at least thirteen years old or by a former kidfluencer who is now an adult.²⁰⁸ However, the law does not provide an explicit enforcement mechanism or a means for relief for kidfluencers whose requests for removal go unheeded; it also seemingly exempts social-media platforms from responsibility entirely as it has no “effect on a party that is neither the content creator nor the minor who engaged in . . . content creation.”²⁰⁹

Meanwhile, Utah’s law does involve social-media platforms that host kidfluencer content explicitly in its removal provisions, requiring that platforms “provide a readily apparent process” for former kidfluencers who are now at least eighteen to request removal of content featuring themselves as minors.²¹⁰ But under Utah’s system, creators can still refuse to comply with removal requests. The law provides only an ex post, litigation-dependent right of action for former kidfluencers to challenge a creator’s refusal; at that point, a court would then consider the “emotional harm or substantial embarrassment” the challenged content poses to the former kidfluencer and both “the interests of the content creator” as well as “the public interest served by” that content.²¹¹ Thus, while Utah and Minnesota’s protections are certainly better than nothing, they are also critically limited; because kidfluencer exploitation is so rampant and systemic, an expensive, slow, after-the-fact system of relief available only on a state-by-state basis is simply not enough to protect them.

From that perspective, Arkansas and Montana have gone the furthest toward effecting an adequate legal solution: both states’ kidfluencer laws put responsibility on platforms, though with some caveats, to enforce kidfluencer protections, including removing kidfluencer content upon request. In Montana, creators are removed from the takedown process entirely; instead, Montana’s law triggers platforms’ responsibility to “take all reasonable steps to permanently delete” kidfluencer content as soon as former kidfluencers (who are at least eighteen) request removal.²¹²

Arkansas’ kidfluencer law is arguably even more sweeping; under that law, platforms must allow for removal requests by kidfluencers and then notify content creators of their obligation to remove the applicable content within thirty days; if creators do not do so, platforms “shall review and take all reasonable steps to remove the content.”²¹³ Unlike Montana, Arkansas does include caveats to platforms’ mandated removal, including for content that the platform finds “sufficiently newsworthy or of other public interest to outweigh the privacy interests” of the kidfluencer in question.²¹⁴ However, Arkansas also elevates platforms’ responsibilities in an additional, consequential area: its law makes it “unlawful to financially benefit from knowingly producing or distributing publicly . . . any visual depiction of a minor with the intent to sexually gratify or elicit a sexual response in the viewer or any other person.”²¹⁵ This section mandates platforms to “develop and implement a risk-based strategy to help mitigate risks related to monetization of the intentional sexualization of known minors” in a content-creation context; the structure of such strategies is at platforms’ discretion and can include monetization policies, “automated system[s] to identify and enforce against potentially problematic content and accounts,” and “[q]uality assurance processes” to monitor the effectiveness of platform’s policies in this area.²¹⁶ While the precise standard for determining whether content has “the intent to sexually gratify or elicit a sexual response” under Arkansas’ law are unspecified, much of the PRI Squad’s content could likely qualify. Thus, in addition to placing responsibility on social-media platforms to effectuate kidfluencer content removal, Arkansas also made the critical first step, at the state level, toward mandating that platforms develop ongoing procedures to monitor for at least some kinds of problematic kidfluencer content, and, ideally, prevent exploitation before it occurs.

Overall, both Arkansas and Montana’s regulatory approaches—situating platforms as the enforcers of newly-recognized kidfluencer privacy and publicity rights—represent the most effective way forward for a comprehensive federal scheme to protect kidfluencers.

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

Kidfluencers need comprehensive labor and privacy protections, and because the Internet transcends the geographical limits that made state-specific labor regulations for child actors practical, adequate kidfluencer labor and privacy regulations must be set at the federal level. But once enacted, these comprehensive federal protections will require an effective enforcement mechanism—and the social-media platforms that host kidfluencer content are likely the entities best situated to moderate and enforce kidfluencer regulations. Thus, a robust set of federal kidfluencer labor and privacy protections would include an imposition of liability on platforms that feature kidfluencer content on monetized accounts (thereby creating revenue for the platform itself as well as for those managing the kidfluencer accounts) when that content is produced under conditions that violate kidfluencer laws. So far, only two states, Montana and Arkansas, have placed legal responsibility squarely on platforms to remove kidfluencer content upon request; lawmakers seeking to adequately protect kidfluencers must follow these states’ lead by pushing for federal measures that regulate kidfluencers’ labor and privacy and enable platforms to enforce those laws.

A. Section 230 and Techlash

Any conversation surrounding potential liability for online platforms based on a platform’s third-party content implicates section 230 of the Communications Decency Act of 1996 (“section 230”). Recognizing how “[t]he rapidly developing array of Internet . . . services available to individual Americans represent[s] an extraordinary advance in the availability of educational and informational resources,”²¹⁷ and how the Internet “ha[s] flourished, to the benefit of all Americans, with a minimum of government regulation,”²¹⁸ section 230 provides limited immunity to any online platform for content posted by third-party users.²¹⁹ In the nearly thirty years since section 230’s passage, its supporters have credited it with enabling some major online platforms to grow from start-ups into global giants,²²⁰ particularly with regard to the largest companies commonly referred to as a whole as “Big Tech.”²²¹ And many of those supporters have defended section 230 in the last ten years as an increasing number of detractors began voicing concerns over Big Tech’s ever-growing and seemingly unchecked power, a phenomenon dubbed “techlash.”²²²

Kidfluencers are glaringly missing from this increasingly heightened debate over the virtues and dangers of section 230 and, more broadly, about the responsibilities or lack thereof that Big Tech owes to users. Any federal proposal to impose liability upon platforms who violate laws designed to prevent kidfluencer exploitation will prompt questions about whether imposing such liability would infringe platforms’ rights under section 230 and their constitutional rights to freedom of expression. Crucially, however, section 230 itself already includes limiting language: in addition to protecting the right of platforms to “voluntarily” and “in good faith” “restrict access to or availability of material that [the platform] considers to be obscene, lewd, . . . or otherwise objectionable, whether or not such material is constitutionally protected,”²²³ section 230 dictates explicitly that it has “[n]o effect on intellectual property law.”²²⁴ Thus, new kidfluencer regulations, if modeled after this exception for intellectual property law, could be fully consistent with section 230.

B. Contributory Liability as a Basis for Platform Enforcement

In keeping with section 230’s unrestricted exception for intellectual property concerns, the Digital Millennium Copyright Act (“DMCA”), passed two years later, empowers copyright owners to compel online entities to remove infringing material hosted on their platforms or otherwise face liability.²²⁵ Under the DMCA’s “notice-and-takedown system,” online platforms can qualify for limitations on liability, known as safe harbor provisions, provided that they comply with an owner’s takedown request.²²⁶ Thus, the system enables copyright owners to safeguard their work from infringement while avoiding litigation and also ensures, via its safe harbor provisions, that online platforms are not impeded in their industrial development by these intellectual property protections. The DMCA has roots in common law contributory liability doctrine in recognizing partial responsibility on the part of online entities for infringement happening on their platform.²²⁷ In this way, the DMCA serves as an analog for a potential liability model for platforms hosting kidfluencer content produced in violation of expanded regulations.

In the kidfluencer context, online platforms also go a step further than inadvertent sharing of objectionable material—they profit directly from kidfluencer content by collecting a percentage of advertising revenue from the accounts they monetize.²²⁸ Thus, under expanded labor and privacy protections for kidfluencers, adapted from existing laws for child actors and child social-media users, platforms hosting monetized kidfluencer accounts would more than meet the criteria for contributory liability for profiting off of content produced in violation of these new regulations. Yet at the same time, platforms are also likely the most well-situated party to enact protocols that can effectively monitor and enforce updated kidfluencer laws.

Platforms can develop a more robust application process for kidfluencer account monetization requiring that adults running kidfluencer accounts to comply with the same laws regulating studios employing traditional child entertainers: obtaining permits to employ minors, tracking and reporting kidfluencers’ working hours and staying within working hour limits, providing proof of regular education and on-set supervision, and setting up protected trust accounts to safeguard kidfluencers’ compensation. Under this regulatory system, would-be kidfluencer accounts would have to meet these requirements as part of applying for account monetization, and existing kidfluencer accounts would have to provide documentation showing that they are maintaining these mandates to retain their monetized status on a continuing basis. Further, if federal protections for kidfluencers’ privacy were enshrined in an expansion of COPPA, online platforms could also be required to actively monitor kidfluencer accounts’ adherence to COPPA’s expanded mandates; specifically, platforms must obtain consent by teenagers and provisional consent by parents of children under thirteen to appear in monetized content and provide a means to revoke consent and compel removal upon request. Just as proof of continuing adherence to expanded kidfluencer labor regulations should be required for kidfluencer accounts to achieve monetization, so too should kidfluencer accounts be required to demonstrate compliance with privacy protections in order to keep gaining revenue. Online platforms already have established procedures to conform with COPPA’s existing mandates for children’s data collection that are similar to DMCA’s safe harbor criteria—in particular, COPPA includes its own self-regulatory guidelines for platforms to keep themselves eligible for COPPA’s longstanding safe harbor provisions. Thus, platforms are poised with a foundation to further develop protocols that monitor compliance with kidfluencer regulations. And despite the ongoing debate over the fate of section 230, imposing liability for online platforms in the kidfluencer context arguably need not threaten section 230, or platforms’ free expression more broadly, at all; such liability would not be without precedent given section 230’s blanket exception for intellectual property infringement, the DMCA’s subsequent imposition of the notice-and-takedown system, and COPPA’s longstanding restrictions on how online platforms interact with child users.

CONCLUSION

While some former kidfluencers like Shari Franke have explicitly called for a ban on kidfluencing entirely, such a drastic measure would be remarkably difficult, if not impossible, to achieve. At the same time, though the PRI lawsuit is unique, as of this writing, in its involvement of kidfluencers personally suing adult content producers, the PRI plaintiffs are part of an ever-growing cohort, the oldest of whom are only beginning to reach adulthood. As the first generation of kidfluencers comes of age while regulations to protect kidfluencers remain, at best, in their infancy, courts could see a rise in litigation by former kidfluencers only now independent enough to seek legal recourse. Rather than Shari’s proposed all-out ban on kidfluencing or a slew of merely reactive, post-exploitation lawsuits in the spirit of the PRI lawsuit, the more promising approach to addressing kidfluencer exploitation lies in enacting strict labor and privacy regulations at the federal level; once these regulations are created or expanded, lawmakers can then explore mechanisms for imposing liability on social-media platforms that host kidfluencer content produced in violation of these expanded regulations. If kidfluencers are to remain a fixture of the content-creator world (and they likely will, given the pervasiveness of their online presence as well as their financial value to the platforms that feature them), their career field needs to be regulated like the bona fide occupation that it is. Thus, federal law must ensure the right of kidfluencers in every state to limits on their working hours, guaranteed access to education, on-set supervision and advocacy, and compensation safeguards—the same protections that the most stringent states afford to professional child actors.

But merely applying labor regulations for child actors to kidfluencers as an overall protective measure still falls short because the nature of kidfluencing itself presents an unprecedented privacy intrusion. Child actors have built-in privacy protections by virtue of conducting their work on a set, away from home, playing characters. Their work, by and large, is only seen by people who pay to see it and is only broadcast subject to intellectual property and other licensing agreements between production companies and distributors. In contrast, when kidfluencers’ parents say, “Action!” the entire world immediately has an unrestricted window directly into their personal, private life. Thus, just as federal law must be expanded to regulate kidfluencers’ labor, COPPA should be amended to explicitly cover kidfluencers and also to make parental consent to collection of kidfluencers’ personal data provisional only—once children turn thirteen, they must be able to retroactively withdraw consent for data their parents turned over on their behalf. Under this new regulatory system, social-media platforms would be charged with monitoring kidfluencer accounts’ adherence to these requirements and suspending accounts in violation, drawing upon their existing safe harbor guidelines that currently ensure their compliance with COPPA and the DMCA as a model. This all-encompassing approach will serve to close the gaps in kidfluencer protections as quickly and effectively as possible, preventing future generations of kidfluencers from needing to wait to reach adulthood before they can pursue legal recourse after years of exploitation. It defies common sense that, as far as kidfluencers’ labor and privacy are concerned, the younger—and more vulnerable—they are, the fewer rights they have.

APPENDIX

My name is Shari Franke. My mother, Ruby Franke, is the prominent family vlogger arrested last year for child abuse. I don’t come today as the daughter of a felon, nor a victim of an abnormally abusive mother. I come today as a victim of family vlogging. My goal today is not to present any idea of a solution to this problem, but to shed light on the ethical and monetary issues that come from being a child influencer.

When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

Utah is specifically a hotspot for family content due to the LDS culture around family and the goal to share the church with the world. We also have large families which makes family content more lucrative. Specifically, many parents film their regular family life as an online video blog, called a vlog. But I want to be clear that there is never, ever a good reason for posting your children online for money or fame. There is no such thing as a moral or ethical family vlogger.

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income as is often the case for full time family vloggers. Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. Or other times, simply going on vacation was expected to be payment enough—because most kids don’t get to go on regular and expensive trips. Never mind the fact that the child’s labor is actually what paid for the vacation or trip. There is no law in place to guarantee that child influencers get any money from their work. If a family account does not become an LLC, parents are taxed heavily for paying their children. But parents receive tax write offs for the regular clothes they wear, the gas money used to drive places, and even the houses they live in—anything that is filmed can be written off. And even after registering their business as an LLC, there is no guarantee that children will get paid. Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

But despite any monetary payment children may receive, don’t let this excuse the 24/7 labor that these children are subjected to. As a child, I was fully aware that I was an employee. The business was successful when I was happy or when I shared my hardships with the world. Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video [for] that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

At the time, I’d tell you that I had a choice in what was filmed. But I’ve come to learn that every child influencer, in a way, suffers from Stockholm syndrome. Most child influencers would probably tell you they have full control over what is posted; but the reality is that their parents bribe and shame them into posting their most vulnerable moments. In fact, many child influencers may tell you they enjoy their work because of the monetary perks they receive, or the fun experiences that they can have. After all, what child would say no to a fun vacation or shopping spree if all they needed to do was film [a mental breakdown or] an embarrassing moment?

But as children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. In any other context, it is understood that children cannot give consent—but for some reason, people think family vlogging is different. I did not realize the impact that filming as a child would have on me now. My social media became flooded with rumors of having sexual relations with my own brother, to being called a baby birthing machine at the age of thirteen. All these things have stuck with me, and I will forever live between the ages of thirteen to seventeen in many of my viewer’s minds. In addition, pedophiles stalk the internet, specifically seeking out child influencers. I promise you that the parents are aware of these predators and choose to post their children anyway.

I understand that this a big issue to tackle. I am not asking you to ban family vlogging, though that is my end goal. I also understand that as Utahns, we don’t appreciate big government overreach. But when it comes to protecting children, it should be a bipartisan issue. The only people harmed by child influencer laws are the parents exploiting their children. While this may not seem like an issue now, as child influencers in Utah continue to grow up, I foresee there will be legal crises with these children realizing that vlogging has brought severe emotional distress. Or these kids may realize they don’t have an appropriate amount of money to show for their [forced] labor. After all, how does that child know how much they should have made versus what their parents may or may not have paid them? Let’s deal with this now, before we reach that point. But even despite a good paycheck, I want to be absolutely clear that there is no amount of money can justify selling your soul, as a child, to the world. In no other industry would we justify unregulated child labor with a huge paycheck, and we should not do that here.

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. While I don’t have all the answers, nor many feasible solutions for this problem, I am proud to be one of the first child influencers in the state of Utah to speak against this issue. I don’t want people to look at me and blame my unique circumstances, with a mother in prison, to the Franke criminal case. Family vlogging ruined my innocence long before Ruby committed a crime. I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is. Thank you.²²⁹

99 S. Cal. L. Rev. 449

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Elinor J. Haddad*

*Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate, 2026, University of Southern California Gould School of Law; B.A. Law, History, and Culture, 2016, University of Southern California. This Note is dedicated to the memory of my grandmother Nan Johnson. Thank you to my advisors Professors Jonathan Barnett and Jef Pearlman for their support and guidance; to Cristopher Swain for his unconditional encouragement; to Mark E. Haddad for his faith and wisdom; to Miranda Johnson-Haddad for her unwavering support; to Madeline Goossen and Robyn Kazemaini for their loyal mentorship; and to Kelcey Sholl, Isabella Flaherty, Nicholas Considine, and the staff of the Southern California Law Review for their thoughtful and dedicated editing.

Introduction

I. The Evolution of Undocumented Immigrant Sentencing

A. Florida’s Refugee Crisis and Reentry Sentences

B. Writing and Rewriting the Reentry Guidelines

C. The First Step Act and Trump-Era Immigration Politics

II. The Discrimination Problem

A. Double Counting Criminal History

B. Doing More and Harder Time

III. The Arbitrariness Problem

A. The Criminal History Lottery

Timing the Deportation

Misinterpreting State Sentences

Supervision Complications

Slow Court Records, Fast Guilty Pleas

B. The Case of Mr. R

IV. Sentencing Constitutionalism

A. A Two-Track Model of Equal Protection at Sentencing

B. Sentencing Constitutionalism and The Crack/Powder Disparity

Conclusion

Appendix

99 S. Cal. L. Rev. 291

INTRODUCTION

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

A. Interpreting Privileges and Immunities in Historical Context

A Few Meanings of Privilege

Privilege As a Benefit Beyond Those Held by Common Citizens

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

A Few Meanings of Immunity

The Broader Immunity Definition Is the Best Match

B. Rights, Privileges, and Immunities

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

The Post-McDonald Future of the Privileges or Immunities Clause

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

A. The Nature of the Slaughter-House Majority’s Error

B. The Quality of the Slaughter-House Majority’s Reasoning

A Bald, Results-Based Conclusion

An Absurd Reading That Ignores Text and Legislative History

C. The Workability of the Rules Imposed on the Country

D. The Disruptive Effect on Other Areas of Law

E. Developments Since the Case Was Decided

F. The Absence of Concrete Reliance

IV. SUBSTANTIVE DUE PROCESS MUST END

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

B. Substantive Due Process Shortchanges the Ninth Amendment

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Ink Blot Approach: Disregarding the Ninth Amendment

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Glucksberg’s Goldilocks Test

VI. THE FRAMEWORK APPLIED

A. The Framework for Enumerated Rights

PI + 9 Applied to a Hypothetical About an Enumerated Right

PI + 9 Applied to a Hypothetical About an Unenumerated Right

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

A. Putting Individual Rights on Stronger Footing

B. Efficiency, Clarity, and Respect for the People’s Amendments

C. Development of Ninth Amendment Jurisprudence

CONCLUSION

99 S. Cal. L. Rev. 359

INTRODUCTION

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

II. THE BRINKMANN CASE

A. The Impossible Inquiry That Is (Actually) Possible

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

Significance of Objective Evidence

Possibility of Closer Objective Scrutiny

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

C. The Possibly Fatal Mistake of Kelo Misinterpretation

An Unwarranted Inference Drawn by the Kelo Majority

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

III. THE NINTH & SEVENTH CIRCUITS

A. Analysis of the Ninth Circuit

B. The Seventh Circuit & Question of Legislative Deference

IV. WHAT NOW?