McDonnell Douglas and the Cat’s Paw

Maria Castro, Associate Member, University of Cincinnati Law Review

The most common employment discrimination claim is an individual disparate treatment claim.[1]  Individual disparate treatment claims typically arise when an individual alleges the employer treated the employee differently based on a protected trait.[2]  Individuals commonly rely on circumstantial evidence to prove individual disparate treatment claims.[3]  In McDonnell Douglas v. Green, the Supreme Court developed a three-part burden-shifting test to assist courts in evaluating individual disparate treatment claims based on circumstantial evidence.[4]  Since this decision, the application of McDonnell Douglas has continued to confuse plaintiffs, defendants, attorneys, courts, and scholars.  One area of confusion that persists is the appropriate application of cat’s paw liability claims to the McDonnell Douglas framework.

The “cat’s paw” is a theory of vicarious liability, which establishes that an employer may be held liable for the discriminatory and retaliatory acts of its subordinate employees.[5]  The concept arises when a subordinate employee, lacking ultimate decision-making power, has an impermissible bias against another employee and uses this bias to influence the actions of the ultimate decision-maker.[6]  As a result, the ultimate decision-maker takes an adverse action against its employee, without realizing that this action was influenced by another employee’s impermissible bias.  Plaintiffs in cat’s paw liability cases do not allege that the decision-maker had an impermissible bias against the plaintiff.  Rather, the plaintiff seeks to impute the bias of another employee into the ultimate decision maker.  In Staub v. Proctor Hospital, the Supreme Court held that cat’s paw liability claims apply to the Uniformed Services Employment and Reemployment Rights Act (USERRA).[7]  Since this decision, the application and scope of Staub has continued to confuse plaintiffs, defendants, attorneys, courts, and scholars.  The First Circuit and the Sixth Circuit have utilized different analyses for the application of cat’s paw liability cases to the McDonnell Douglas framework.[8] The First Circuit integrates the cat’s paw liability analysis into the McDonnell Douglas framework, whereas the Sixth Circuit analyzes each concept separately. The confusion in analysis demonstrates that the McDonnell Douglas framework should not be extended to other employment cases.”

Supreme Court Holdings

Individual Disparate Treatment, Circumstantial Evidence: McDonnell Douglas

In McDonnell Douglas, the Supreme Court developed the framework for courts to use when determining an employer’s intent in an individual disparate treatment claim.[9] The plaintiff in McDonnell Douglas alleged that his employer refused to rehire him because of his race.[10]  The Court granted certiorari to clarify the standards governing the disposition of an action challenging employment discrimination.[11]  The Court recognized that the purpose of Title VII was to “assure equality of employment opportunities and eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.”[12]  The Court also recognized that Congress did not intend to guarantee a job to every person regardless of qualifications.[13]  Finally, the Court emphasized the need to balance the interests of efficient and trustworthy work with fair and racially neutral employment decisions.[14]

To balance these interests, the Court created a framework that shifts the burden of production.[15]  The Court held that a plaintiff must first carry the initial burden of establishing a prima facie case of discrimination based on a protected trait.[16]  A prima facie case consists of a showing that: (1) the plaintiff belongs to a protected class; (2) the plaintiff applied and was qualified for a job for which the employer was seeking applicants; (3) despite the plaintiff’s qualifications, the plaintiff was rejected; and (4) the position remained open, and the employer continued to seek applicants.[17]  The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employer’s decision.[18]  Finally, the burden shifts back to the plaintiff to prove that the employer’s preferred reason was pretext for discrimination.[19]

Cat’s Paw Liability: Staub v. Proctor Hospital

In 2011, the Supreme Court held that cat’s paw liability applies to the Uniformed Services Employment and Reemployment Rights Act (USERRA), a statute that the Court recognized was similar to Title VII.  The plaintiff in Staub was a member of the United States Army Reserve and alleged that his employer terminated him because of his military status, in violation of USERRA.  Under USERRA, an employer may not discriminate against an individual on the basis of military membership or obligation.[20]  The plaintiff’s immediate supervisors were hostile towards his military obligations and placed him on a disciplinary warning for allegedly violating a company rule.[21]  While under a disciplinary warning, the plaintiff’s coworker complained to the employer’s chief operating officer.  The chief operating officer reviewed the plaintiff’s personnel file and fired the plaintiff.  The plaintiff sued his employer for discrimination, alleging that his supervisors’ reports were impermissibly biased against him and that the chief operating officer relied on the biased reports when terminating the plaintiff.  Accordingly, the plaintiff sought to impute the impermissible bias of his supervisors into the ultimate decision-maker by using cat’s paw liability theory.

When considering whether cat’s paw liability applied, the Supreme Court first noted that the text of USERRA was very similar to that of Title VII.[22]  Like Title VII, USERRA requires that the discrimination be a “motivating factor” in the adverse action.[23]  Applying this to the case, the Court recognized that the decision to terminate an employee on the basis of a biased report might constitute a “factor” or a “causal factor,” but it did not constitute a “motivating factor.”  The Court next proceeded to the issue of causation and found that as long as “the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter requirement to be liable under USERRA.”[24]  Therefore, the subordinate employee’s actions may become the proximate cause of the employee’s injury, so long as the actions have some direct relation to the injury.  Accordingly, the Court held that cat’s paw theory of liability may be applied to USERRA claims when a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action if that act is a proximate cause of the ultimate employment action.[25]

Lower Court’s application of McDonnell-Douglas and Cat’s Paw

First Circuit: Ameen v. Amphenol

In Ameen v. Amphenol, the First Circuit applied cat’s paw liability to a claim of FMLA retaliation, but ultimately held that the plaintiff could not prove retaliation.[26]  The plaintiff in Ameen alleged that his employer terminated him for taking FMLA leave after the birth of his child.[27]  After returning from his FMLA leave, the plaintiff failed to follow proper procedures after making a mistake during his shift.[28]  When his supervisor found out, he issued a written warning to the plaintiff and informed him that if he failed to follow proper procedures again, he would be fired.[29]  Two of the plaintiff’s co-workers reported that the plaintiff was cheating on his timesheets by taking an extended lunch without clocking out for it.[30]  Upon review of the plaintiff’s timesheets, the supervisor discovered that the employee had been lying on his timesheets for two years.  The supervisor reported this to the company director, who subsequently fired the employee.[31] The plaintiff claimed that he was not fired due to the few extra minutes on his timesheet, but that he was fired due to taking FMLA leave.[32]  The plaintiff did not allege that the company director was biased against him; rather, he alleged that his supervisor was biased against him and that the company director’s decision to fire him was influenced by his supervisor’s bias.  Therefore, the plaintiff sought to apply cat’s paw liability.

When considering whether to apply cat’s paw liability to the plaintiff’s FMLA retaliation claim, the First Circuit recognized that the issue of whether the employer’s decision to take an adverse action was motivated by retaliation was similar to the issue of intent raised in Title VII.[33]  Accordingly, the court found that it needed to apply the three-part burden shifting McDonnell Douglas framework to analyze the employer’s motivation.[34]  First, McDonnell Douglas requires the plaintiff to make a prima facie case of discrimination or retaliation.[35]  Once the plaintiff establishes this, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the termination.[36]  Once the employer proffers its reason, the burden shifts back to the plaintiff to show that the employer’s stated reason was in fact a pretext for retaliating against him for taking protected FMLA leave.[37]

The court assumed that the plaintiff established the prima facie case of FMLA retaliation.[38]  Next, the court found that the employer offered a legitimate nondiscriminatory reason for terminating the plaintiff: he lied on his timesheets.[39]  When considering whether this reason was pretext, the court provided that the plaintiff must show that the retaliator knew about the plaintiff’s use of FMLA leave.[40]  Here, the decision-maker was unaware of the plaintiff’s FMLA leave.  As a result, the plaintiff could only prevail if he could impute his supervisor’s knowledge and animus into the decision-maker.  The court held that the plaintiff’s supervisor was not biased against the plaintiff for taking FMLA leave.[41]  Accordingly, there was no retaliatory animus to impute into the decision-maker and therefore the employer did not retaliate against the plaintiff for taking FMLA leave.

Sixth Circuit: Marshall v. Rawlings Company

In Marshall v. Rawlings Co., the Sixth Circuit applied cat’s paw liability under a slightly different analysis.[42]  The plaintiff in Marshall took FMLA leave to receive treatment for her mental health.[43]  After returning from leave, she experienced a backlog of work and had a difficult time getting back on track.[44]  Once she caught back up on her work, her supervisor worried that she might fall behind again.  The supervisor expressed these concerns to the company’s in-house attorney.  As a result, the in-house attorney demoted the plaintiff, claiming that the decision was based on the plaintiff’s performance-related issues.

One year after her first FMLA leave, the plaintiff took another FMLA leave.[45]  During a meeting with a different supervisor regarding her performance issues, the plaintiff claimed that her original supervisor harassed her for taking FMLA leave.  The second supervisor reported this to the same in-house attorney.  The in-house attorney believed that the plaintiff fabricated the allegation to deflect from her own performance-related issues. The company owner agreed with the in-house attorney and fired the plaintiff.  The plaintiff alleged that her immediate supervisors were biased against her and that the in-house counsel’s decision to demote her and the company owner’s decision to fire her were influenced by her supervisors’ bias.  Therefore, the plaintiff sought to apply cat’s paw liability.

When considering how to apply cat’s paw liability to FMLA retaliation claims, the court looked to Sixth Circuit precedent which provided that to prove FMLA retaliation, the plaintiff “must show that taking leave was a causal factor” in the employer’s decision to demote and terminate her.[46]  She may show this causal connection through either direct or indirect evidence.  The court then needed to clarify whether the McDonnell-Douglas burden-shifting framework applies to cat’s paw liability claims.  The Sixth Circuit found that a plaintiff alleging FMLA retaliation based on cat’s paw theory of liability must first satisfy the requirements of the McDonnell Douglas framework and then prove that the decision-maker was the cat’s paw of a biased subordinate.[47]  Therefore, the Sixth Circuit analyzes these two issues separately.

The Relationship between McDonnell-Douglas and Cat’s Paw

Since its initial application, there has been much confusion over when and how cat’s paw liability theory applies to employment discrimination and retaliation cases.  Uncovering the employer’s motivation is central to establishing liability under such claims.[48]  To hold an employer liable for employment discrimination, the employer must have been motivated by the protected trait when it took an adverse action against the individual.  To hold an employer liable for employment retaliation, the employer must have been motivated by the individual’s choice to exercise a protected right under the employment statute.  McDonnell-Douglas is the leading framework for determining single-motive, individual disparate treatment claims using circumstantial evidence.  It is used to determine the employer’s intent.  Cat’s paw liability poses a unique issue regarding the employer’s motivation because the ultimate decision maker who took the adverse action did not have the required discriminatory animus.  Accordingly, cat’s paw liability is also used to determine the employer’s intent.  However, the Court in Staub failed to articulate the relationship between cat’s paw liability and McDonnell-Douglas.  As a result, lower courts have struggled to determine how cat’s paw liability interacts with McDonnell Douglas.  Employers have had little to no guidance regarding how to avoid liability and employees discriminated against are not treated uniformly in cat’s paw scenarios based on the circuits in which their claims are brought.[49]

The First Circuit applied cat’s paw liability theory during the pretext stage of McDonnell Douglas.  The Sixth Circuit held that courts must do two separate analyses: first a McDonnell Douglas analysis and if that passes, then a cat’ paw liability theory analysis. Both of these approaches are unnecessarily confusing.  McDonnell Douglas was originally applied Title VII case.  However, courts apply this framework to various types of employment discrimination and retaliation statutes.  Although many of these statutes are similar to Title VII, McDonnell Douglas has proven to be a complicated framework that should not be further extended to other employment statutes.[50]

Many scholars have argued that it is time to get rid of McDonnell Douglas altogether.[51]  One way to eliminate McDonnell Douglas is to apply the cat’s paw liability framework to all individual disparate treatment claims utilizing circumstantial evidence.  Only a slight modification is necessary.  For example, instead of utilizing the three-part burden-shifting framework to determine the employer’s intent, courts could require the plaintiff to prove that the act was motivated by a discriminatory animus intended to cause an adverse employment action, which is the proximate cause of the final decision.[52]  Therefore, rather than attempting to fit cat’s paw liability into the existing McDonnell Douglas framework, courts should simply eliminate the McDonnell Douglas framework and analyze intent under a cat’s paw liability analysis.  Because cat’s paw liability is used to determine the employer’s intent, it is unnecessary for a court to analyze intent again under McDonnell Douglas.


Since the Supreme Court developed the three-part burden-shifting framework of McDonnell Douglas for analyzing the employer’s intent in an employment discrimination claim, lower courts have struggled to determine how to apply the analysis.  This confusion was expanded in Staub when the Supreme Court developed the cat’s paw theory of liability to determine the employer’s intent in an employment discrimination claim that alleges the ultimate decision maker was influenced by the discriminatory animus of another employee.  Both concepts require the court to determine whether the employer possessed discriminatory animus when it took an adverse action against the plaintiff.  Yet, both concepts provide completely different analyses.  The McDonnell Douglas framework is a much more complicated method to get to the same answer the cat’s paw liability theory reaches. Accordingly, it does not make sense to incorporate cat’s paw liability theory to McDonnell Douglas.  This confusion is demonstrated in the lower courts’ struggle to apply the two concepts to one another.  The First Circuit applied cat’s paw liability theory to the pretext stage.  The Sixth Circuit analyzed the two frameworks separately: first doing a McDonnell Douglas analysis and second doing a cat’s paw liability analysis.  Both decisions were confusing and unnecessary.  Cat’s paw liability determines whether the employer possessed the required intent.  Accordingly, it is unnecessary for a court to also determine the employer’s intent under a McDonnell Douglas analysis.

[1] Susan Grover, Sandra F. Sperino, & Jarod S. Gonzalez, Employment Discrimination 55 (2014).

[2] Id.

[3] Id. at 56 (circumstantial evidence is evidence that allows the jury to infer that a fact is true, rather than directly supporting the truth of that fact).

[4] Id.

[5] John S. Collins, Another Hairball for Employers? “Cat’s Paw” Liability. for the Discriminatory Acts of Co-Workers After Staub v. Proctor Hosp., 64 Baylor L. Rev. 908, 912 (2012).

[6]  Devin Muntz, Extending the Cat’s Paw Too Far into the Fire: Rejecting the Second Circuit’s Extension of the Cat’s Paw Theory of Liab. to Co-Worker Discriminatory & Retaliatory Animus, 2017 U. Chi. Legal F. 709, 710 (2017).

[7] Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011).

[8] Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63 (1st Cir. 2015); Marshall v. The Rawlings Co. LLC, 854 F.3d 368 (6th Cir. 2017).

[9] McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973).

[10] Id. at 796.

[11] Id. at 798.

[12] Id. at 800.

[13] Id.

[14] Id. at 801.

[15] Id. at 802.

[16] Id.

[17] Id. (the court noted that the prima facie proof required will vary depending on the facts).

[18] Id. at 802.

[19] Id. at 804.

[20] Staub. at 1190.

[21] Id. at 1189 (the plaintiff’s military obligations included attending drill once a month and training for two weeks a year).

[22] Id. at 1191.

[23] Id. at 1192.

[24] Id.

[25] Id. at1194.

[26] Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63 (1st Cir. 2015).

[27] Id. at 65.

[28] Id.

[29] Id. at 66.

[30] Id.

[31] Id.

[32] Id. at 67.

[33] Id. at 69.

[34] Id.

[35] Id. (To meet the burden of proving a prima facie case under the McDonnell Douglas framework, the plaintiff must show that (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between his protected activity and the employer’s decision to fire him).

[36] Id.

[37] Id. at 69.

[38] Id.

[39] Id. at 70.

[40] Id.

[41] Id. at 73.

[42] Marshall v. The Rawlings Co. LLC, 854 F.3d 368 (6th Cir. 2017).

[43] Id. at 372.

[44] Id. at 373.

[45] Id. at 375.

[46] Id. at 377.

[47] Id. at 379.

[48] Eric Rosoff, Disparate Treatment of Disparate Treatment: Harmonizing Title VII Pretext & Mixed-Motive Jury Instruction Causation Standards in Light of Staub v. Mem. Hosp., 35 Cardozo L. Rev. 2079, 2113 (2014).

[49] Pepper, Staub v. Proctor Hospital: A Tenuous Step in the Right Direction, 16 Lewis & Clark L. Rev. 363, 368 (2012).

[50] Sandra S. Sperino, Litigating the Fmla in the Shadow of Title VII, 8 FIU L. Rev. 501 (2013).

[51] Rosoff, supra note 35 at 2113.

[52] Id.

Asylum Claims for Gender-Based Violence

Natalia Trotter, Associate Member, University of Cincinnati Law Review


As with many other legal problems, the answer to the question of what standard applies when bringing a claim of gender-based asylum is, “it depends.” Gender-based asylum claims refer to situations affecting a particular gender, such as domestic violence, sexual assault, female genital mutilation, and forced marriage. To succeed on a gender-based asylum claim, individuals must demonstrate that they form part of a particular social group.[1] Although the Board of Immigration Appeals (BIA), through various holdings, provided guidelines for determining the parameters of the particular social group classification, the standard is vague and confusing.[2] Because of the lack of clarity, circuit courts have either ignored, modified, or adopted the BIA’s standards, leading to inconsistent results across jurisdictions.[3] Victims of gender-based violence, including physical and sexual assault, forced marriage, human trafficking, and female genital mutilation face a system made entirely too complicated by the BIA’s unclear standards. To resolve the inconsistency across jurisdictions, the BIA should require only that individuals claiming membership in a particular social group show that the group is created based on an immutable characteristic. Greater uniformity is necessary in the creation of particular social group classifications for victims of gender-based violence, to avoid inconsistent findings by the circuit courts and to provide greater relief for abused individuals.

Legal Analysis: The BIA Standards

When seeking asylum, an individual must demonstrate four distinct elements. The person must:

(1) . . . have a “fear” of “persecution”; (2) the fear must be “well-founded”; (3) the persecution feared must be “on account of race, religion, nationality, membership in a particular social group, or political opinion”; and (4) the [person] must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution.[4]

An individual may face challenges proving the first, second, and fourth elements, however, demonstrating membership in a particular social group is particularly difficult. Since claims of gender-based violence do not fall under the broader terms of race, religion or nationality, they are classified within the “particular social group” arena. Although the statute lays out the elements, it does not provide a definition for “particular social group” (PSG). In an attempt to fill in the gap, the BIA endeavored to delineate the standards for PSG claims. In one case, Matter of Acosta, the Board of Immigration Appeals (BIA) stated: “we interpret the phrase ‘persecution on account of membership in a particular social group’ to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.”[5] The court defined immutability as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.”[6] The court proceeded to include sex as a valid immutable characteristic.[7]

Although Matter of Acosta appeared favorable to gender-based claims, by accepting “‘sex’ as an immutable characteristic, few circuits have recognized the possibility of a cognizable social group based on gender alone, specifically a social group of women.”[8] In addition to the courts’ reluctance, two BIA cases, Matter of S-E-G and Matter of E-A-G created additional hurdles for individuals claiming membership in a PSG.[9] In these two cases, “the BIA added two new requirements to the PSG test,” holding “that in order to establish a viable PSG, the group must be based on an immutable characteristic, be socially visible, and particularly defined.”[10] Although described as two distinct features, “social visibility” and “particularity” seem interconnected. While particularity refers to the recognition in society of the group “as a discrete class of persons,”[11] social visibility is vaguely described as a trait generally recognized by individuals in the community.[12] The BIA later clarified the definition of social visibility claiming that it “does not mean literal visibility, but instead refers to whether the PSG is recognized within society as a distinct entity.”[13] Based on the BIA’s standards, claiming membership in a particular social group requires demonstrating that the shared characteristic of the group is an immutable characteristic, that the group is recognized in society, and that the group maintains an identity as a distinct class of individuals.

Circuit Split Over PSG Standard

While all the circuits accept the immutability standard identified in Matter of Acosta, the BIA’s use of the term “immutability” appears unclear. In 2014, the BIA held that “‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group.”[14] Following Acosta, the BIA in A-R-C-G acknowledged gender as an immutable characteristic and additionally held that “marital status can be an immutable characteristic where the individual is unable to leave the relationship.”[15] In deciding that marital status qualified as an immutable characteristic, the court based the decision on factors such as “whether dissolution of a marriage could be contrary to religious or other deeply held moral beliefs or if dissolution is possible when viewed in light of religious, cultural, or legal constraints.”[16] The BIA’s description of marital status as constituting an immutable characteristic provided a much broader and confusing standard.

Although accepting the standard of immutability, jurisdictions split over whether to adopt the additional steps laid out in Matter of S-E-G and Matter of E-A-G for gender-based asylum cases. The Seventh Circuit, in a case addressing the issue of female genital mutilation, discarded the BIA’s social visibility step, stating candidly: “it makes no sense.”[17] In Gatimi, the court pointed out one of the problems with including the social visibility step by stating: “[w]omen who have not yet undergone female genital mutilation in tribes that practice it do not look different from anyone else.”[18] The court demonstrated great discomfort with allowing the social visibility test to preclude the respondent from relief and ultimately chose not to show deference to the BIA’s additional standard.[19] Similarly, in a case involving a woman fleeing from forced prostitution, the court disagreed with the use of the particularity requirement. The court found “it would be antithetical to asylum law to deny refuge to a group of persecuted individuals who have valid claims merely because too many have valid claims.”[20] The court disagreed with the particularity step in instances where the requirement would preclude relief merely because the PSG would encompass a large group of people. When analyzing various claims of gender-based violence, the Seventh Circuit explicitly rejected the social visibility requirement and contradicted the particularity step, attempting to make it easier for the respondents to claim membership in a valid PSG.[21]

While the Seventh Circuit clearly rejected the BIA’s additional requirements, the Sixth Circuit represents a jurisdiction where the standard appears hazier. In Rreshpja v. Gonzales, a case of a woman fleeing forced prostitution (factually similar to Cece v. Holder but decided prior to S-E-G and E-A-G), the Sixth Circuit alluded to the principle of particularity in deciding to deny the PSG and therefore the asylum claim.[22] The court found that the PSG of “young (or those who appear to be young), attractive Albanian women who are forced into prostitution” did not qualify because it represented a “generalized, sweeping classification[].”[23] In addition, the court held that “individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”[24] The court appeared to emphasize particularity, requiring more than persecution and gender to qualify as a PSG. On the other hand, in a case five years later, and decided after S-E-G and E-A-G, the Sixth Circuit relied exclusively on the Acosta immutability test. The court in Bi Xia Qu v. Holder accepted the PSG of a woman from China fleeing from forced marriage and involuntary servitude.[25] The Court viewed the situation as a case where the respondent shared “the common, immutable characteristic of being a woman who has been abducted by a man trying to force her into marriage in an area where forced marriages are recognized.”[26] Based on Bi Xia Qu, it appears that the Sixth Circuit applies only the Acosta standard for gender-based violence claims, yet the Sixth Circuit has not affirmatively ruled on this issue.


Although all circuits apply the Acosta immutability test, the BIA should clarify the definition of immutability to allow victims of gender-based violence to claim relief. Similarly, while a portion of jurisdictions follows the BIA’s addition to the Acosta test of particularity and social visibility, some jurisdictions flatly reject the supplementary requirements. In addition, the holding by the Ninth Circuit demonstrates the confusion of the BIA in applying its own standards. Because of the misunderstandings generated by the requirements, the BIA should accept the Seventh Circuit’s position and revert back to an exclusive Acosta test, eliminating the added burden of demonstrating particularity and social visibility.

The BIA could greatly reduce the confusion of the immutability requirement by viewing sex as a sufficient element for creating a PSG. In Acosta, the BIA specifically accepted sex as a valid immutable characteristic.[27] Based on the BIA’s decision in that case, sex could stand alone in the creation of a particular social group. As pointed out by the Seventh Circuit, the possible size of the category should not be a factor in precluding persons from bringing valid asylum claims.[28] Although courts fear the floodgates of litigation if individuals could claim membership in a particular social group based only on sex, as with the other categories, the individuals claiming sex as the immutable characteristic must still demonstrate a well-founded fear of persecution.[29] For women in situations of domestic violence, forced prostitution, female genital mutilation, or forced marriage, acquiring the evidence to prove the persecution in their home countries is often a very difficult process. Assuming that allowing sex to constitute membership in a particular social group will blow open the door to asylum claims is unrealistic. Because women are more likely to seek asylum on the basis of a PSG then on the basis of race, nationality, or membership in a political group, defining the PSG class so narrowly, creates an “under-inclusive effect in granting asylum to women.”[30] Allowing “sex” to serve on its own as an immutable characteristic would allow women an equal opportunity to pursue asylum claims. In its next decision, the BIA should accept its own ruling from Acosta and permit sex to serve as a stand-alone immutable characteristic.

If the BIA chooses not to accept sex as an immutable characteristic sufficient to constitute a PSG, the BIA should do away with the social visibility and particularity requirements. Addressing the social visibility step, the Seventh Circuit highlighted the fact that it is unreasonable in many situations to require that a group be visible within society.[31] In cases of female genital mutilation or sexual assault, although the violence may not be visible to society, the members of the group still share an immutable characteristic. If the social visibility requirement is applied, women in these groups may not be able to receive relief of asylum since not all violence and abuse is visible. In addition to the complications that applying the social visibility standards pose for women in abusive situations, as the Ninth Circuit points out, the BIA’s own application of the standard appears extremely inconsistent.[32] Addressing the particularity requirement the Seventh Circuit also pointed out that courts should not limit asylum relief merely because the class of people is large. Applying the social visibility and particularity requirements greatly decreases the ability of women, from extremely abusive situations, to receive asylum relief.

In addition to eliminating the social visibility and particularity steps, courts should adopt a more flexible approach to the immutability requirement. In Matter of A-R-C-G-, the BIA found the class of married women unable to leave their partners, as cognizing a PSG since the members shared the immutable characteristic of being unable to leave their marriages.[33] Following this standard, women forced into prostitution or subjected to female genital mutilation should also be able to form PSGs, sharing the common immutable characteristic of pertaining to a culture where violence against women is so engrained in societal norms as to be extremely difficult if not impossible to change. Women in machista societies should demonstrate that forced rape or sexual assault counts as an immutable characteristic since it is something that cannot be changed within the society where the individual lives. The BIA in Matter of A-R-C-G-, provided a more flexible approach to the immutability requirement, which courts should use when addressing claims of gender-based asylum.


Because the standards for demonstrating membership in a particular social group are confusing and convoluted, the BIA should return to the Acosta test and require only the demonstration of immutability to establish a PSG. In addition, the BIA should permit sex, as an immutable characteristic, to stand alone in the creation of PSGs based on gender-based violence. Allowing sex to constitute a valid immutable characteristic, permitting a more flexible understanding of the term immutability, and eliminating the social visibility and particularity requirements, will result in enhanced protection of women escaping situations of violence and will decrease the under-representation of women receiving asylum relief.

[1] 8 U.S.C. § 1101(a)(42)(A).

[2] Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of S-E-G-. 24 I&N Dec. 579 (BIA 2008); Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008).

[3] Matter of A-R-C-G- et al., Respondents, 26 I&N Dec. 388 (BIA 2014); Gatimi v. Holder, 578 F.ed 611, 615 (7th Cir. 2009); Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013); Bi Xia Qu v. Holder, 618 F.3d 602, 607 (6th Cir. 2010); Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087-1088 (9th Cir. 2013).

[4] Matter of Acosta at 211; § 1101(a)(42)(A).

[5] Matter of Acosta at 233.

[6] Id. at 212.

[7] Id.

[8] Andrea Coutu, Gender Plus One: Broadening Judicial Interpretation of Gender-Based Social Group Formulations, 9 7th Cir. Rev.150, 151 (2013).

[9] Matter of S-E-G- at 24; Matter of E-A-G- at 591.

[10] Nat’l Immigrant Justice Ctr., Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G- and Matter of W-G-R, at 2 (2016), (last visited, Mar. 27, 2018).

[11] Id. at 2.

[12]S-E-G- at 586.

[13]Nat’ Immigrant Justice Ctr., supra note 11; Matter of M-E-V-G-, 26 I&N Dec. 277 (BIA 2014).

[14] Matter of A-R-C-G- et al., 26 I&N Dec. 388 (BIA 2014).

[15] Id. at 392-393.

[16] Id. at 393.

[17] Gatimi v. Holder, 578 F.3d 611, 615 (7th Cir. 2009).

[18] Id.

[19] Id.

[20] Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013).

[21] Nat’ Immigrant Justice Ctr., supra note 11 at 3.

[22] 420 F.3d 551(6th Cir. 2005).

[23] Id. At 55.

[24] Id.

[25] 618 F.3d 602, 607 (6th Cir. 2010).

[26] Id. at 607.

[27] Matter of Acosta, supra note 4 at 212.

[28] Cece, supra note 20 at 675.

[29] Coutu, supra note 9 at 154.

[30] Id.

[31] Gatimi, supra note 17 at 615.

[32] Henriquez-Rivas, supra note 27 at 1081.

[33] Matter of A-R-C-G- et al., supra note 14 at 388.

A Game of Thrones: Will Merging with Time Warner Really Put AT&T in Control of King’s Landing?

Patrick Reagan, Associate Member, University of Cincinnati Law Review

“When you play the game of thrones, you win or you die. There is no middle ground.” Those words were uttered by everyone’s favorite fictional bloodthirsty queen, Cersei Lannister, on the HBO series Game of Thrones. HBO is America’s number one paid premium television service and has churned out a constant string of hits that includes Sex and the City, Big Little Lies, Curb Your Enthusiasm, and The Sopranos. More germane to the law, however, is that HBO is owned by Time Warner, whom AT&T is trying to acquire in a $108 billion deal. United States v. AT&T is different from other antitrust cases because it involves a merger in a rapidly changing industry whose business model is being turned on its head by the Internet and companies like Netflix, Hulu, and Amazon. That is not completely fatal to the government’s case, but it shows that the government made a serious miscalculation of the facts when it drafted the complaint.

The Clayton Act

When most people think of American antitrust law, they think of the Sherman Antitrust Act. Its passage in 1890 allowed the United States to reverse the damaging effects monopolies had wrought on the economy in the 19th century and break up monopolies like Standard Oil.[4] However, the Sherman Act does not target mergers and acquisitions; thus, the Clayton Antitrust Act of 1914 was passed.[5] Among other things, the Clayton Act prevents mergers that will “lessen competition, or to tend to create a monopoly.”[6] It was updated in 1936 and 1976 to ban discriminatory prices/services and to require companies planning large mergers and acquisitions to give the government advance notice of such transactions.

The government is bringing its case under § 7 of the Clayton Act, which deals with mergers and acquisitions like the one in question.[8] The Supreme Court has interpreted § 7 broadly, stating, “[t]he language of this section requires merely that the government prove that the merger may have a substantial anticompetitive effect somewhere in the United States.”[9] Generally speaking, courts employ a burden-shifting framework when evaluating Clayton Act cases. Once the government (1) defines a relevant market and (2) shows th merger’s anticompetitive effects on that market[10] a presumption of illegality is created, which the defendant must then rebut.[11] Courts make specific factual and legal considerations when deciding cases under this standard, but the minutiae of that is beyond the scope of this article.[12]

What is the Government’s Argument?

The government’s complaint focuses on the vertical integrative effect of AT&T/DirecTV absorbing Time Warner, which can be illustrated using a hypothetical involving Harry Potter and HBO. Time Warner owns Warner Bros., whose studios were used to make the Harry Potter movies. In the media industry, studios like Warner Bros. sell broadcasting rights for movies Harry Potter to broadcast networks like HBO.[13] The networks then broadcast the movie through a service like DirecTV or AT&T’s U-Verse cable service, who buy the rights from the networks to include them in their lineup.[14] Thus, in a post-AT&T/Time Warner merger environment, the production and broadcast of Harry Potter would stay completely in-house. Warner Bros. Studios would produce the film; HBO would distribute the film; and DirecTV would broadcast the film into the households of millions of Americans. All along the production to distribution and broadcast food chain, AT&T would generate fees and earn profits. That would give AT&T enormous power to influence and shape the television distribution market,[15] which the government defines in the complaint to include traditional pay TV operators like Comcast and DirecTV as well as newcomers like Netflix, Sling TV and Hulu.[16]

The government’s concern is as follows. Networks like HBO, TNT, TBS, and CNN (all Time Warner entities) negotiate fees with traditional distributors like Comcast, DirectTV, and Charter.[17] Those fees are factored into the monthly subscription prices consumers pay.[18] In its complaint, the government highlights the fact that networks owned by Time Warner can make or break distributors because their programming is sought out by most Americans watching TV.[19] For example, Time Warner entities own the broadcast rights for Major League Baseball (through 2021), professional basketball (through 2025), and NCAA March Madness (through 2032).[20]

Additionally, and perhaps strongest to the government’s argument, is the market power exerted by Time Warner’s HBO. HBO markets itself to distributors as playing “’a key role in attracting and retaining’” customers.[21] HBO shows like Game of Thrones and Sex and the City have large, loyal fan bases. Thus, if distributors like Comcast and Charter do not acquiesce to a potential increase in fees they pay to a combined AT&T/Time Warner to broadcast their networks, the distributors would lose the ability to broadcast those networks.

This would also affect online-only TV options for people who “cut the cord” and do not subscribe to a service like DirecTV or Comcast. Examples of this are Sling TV, Netflix, Hulu. They still have to negotiate fee structures with entities like Time Warner for access to their content, and the government argues that this nascent industry would be crushed by the coercive economic power of a combined AT&T/Time Warner.[22] The government further argues that customers would have no other choice than to subscribe to a distributor like DirecTV or U-Verse, which would benefit from the AT&T/Time Warner merger.[23]

This is Not Your Garden Variety Antitrust Case

Antitrust is one of the areas of law most closely aligned with economics. In order for the government to prove a violation of § 7 of the Clayton Act, they must prove that this acquisition will cause a substantial anticompetitive effect in the media production/distribution market after defining a relevant market in which the anticompetitive effect will be wrought.[24] That is not just any anticompetitive effect, but rather a substantial anticompetitive effect. To meet the first element of a §7 claim, the government has defined its market as both traditional pay TV services and newcomers like Hulu, Sling TV, and Netflix.[25] While there may be some anticompetitive effect in the traditional pay TV market, the government has not shown there will be a substantial anticompetitive effect with internet video distributors like Netflix and Hulu—namely because AT&T/DirecTV is not trying to acquire any of them. While the government could make the argument that AT&T/DirecTV might raise licensing fees to hurt Netflix and Hulu, both services have large subscriber bases,[26] which translates to greater bargaining power.

The government’s complaint follows a traditional market analysis formula portraying AT&T/Time Warner as the profit-maximizing monopolist that squeezes consumers and society. It is a static analysis that does not sufficiently account for the significant impact the internet has had on traditional video distribution. That is a serious flaw because the government has defined the market in which the Time Warner acquisition will allegedly have an anticompetitive effect as one including Internet video distributors (i.e. Netflix and Hulu). AT&T has begun that discussion in its answer to the government’s complaint.[28] However, AT&T’s allegations of trying to become nothing more than a well-meaning, nimble competitor in a cutthroat market should not be taken as gospel truth. No company merges with or acquires another without serious analysis of the risks and benefits involved. It is likely that acquiring Time Warner will give AT&T a more prime position as a market mover and allow it to create a proprietary supply chain of media production and distribution that allows it to cut costs at every step. But where the government misses the mark is that traditional pay TV is a dying market, with more and more people cutting the cord every day.[29] Rather than becoming a market hog, AT&T/Time Warner will have to negotiate agreements with multiple online platforms to remain competitive in the media distribution market.

Cutting into the government’s argument that this acquisition will cause a substantial anticompetitive effect are (1) consumer trends; and (2) the pervasive and flexible nature of internet video distribution. Traditional pay TV distributors lost about 827,000 subscribers in the third quarter of 2017 alone.[30] Of that, 349,000 of the lost subscribers came from satellite TV, of which DirecTV is the largest provider.[31] Additionally, a recent Accenture survey of consumers revealed startling results for TV executives: the number of people who prefer to watch TV shows plummeted by 55%.[32]

Internet video distributors are taking advantage of these consumer trends to reshape the media market. Many people subscribe to multiple online distribution services like Netflix, Amazon Prime, and Hulu. In fact, HBO has its own proprietary service called HBO GO. All of those services spend large amounts of money on original programming and have loyal customer bases. That gives them leverage and influence in the marketplace and drives down prices for consumers as these services are often cheaper than traditional pay TV from DirecTV and U-Verse. Take for example the fact that Apple bought the rights to two seasons of Reese Witherspoon’s forthcoming television show—and they didn’t even watch the pilot.[33] If the show becomes a hit, customers will flock to Apple’s distribution service and watch it. That will make money for Apple and Reese Witherspoon, while creating another competitor for AT&T/Time Warner. Now, if AT&T/Time Warner sought to buy Apple’s distribution, that would be a problem because they would be reducing the number of competitors in a burgeoning industry so they could make more money. But, as is the case before us, simply buying one entity (Time Warner) that creates a lot of media in a last-ditch attempt to possibly push consumers to the dying service of traditional pay TV does not create a serious anticompetitive effect because the market has drastically changed. Basic economic theory holds that monopolists reduce the quantity in the marketplace and raise prices for consumers, which creates a “dead space” of utility lost to consumers.[34] That utility comes in the form of choice and true enjoyment of products—the two things that keep people buying and consuming in a market economy. Acquiring Time Warner in a video distribution market that is quickly decentralizing will not allow AT&T to reduce quantity or utility.This brave new world in which AT&T/Time Warner will have to compete shows that the market is still competitive and is emblematic of how the free market works. Products such as pay TV become old, outdated, and expensive; and newer, better, cheaper products like Netflix and Hulu replace them. That is how free market economics works, which the Department of Justice did not sufficiently take account of when it filed its action against AT&T.

The public would be harmed by one or two companies controlling what is produced and beamed across the airwaves into our homes and onto our smartphones. That would take us into a brave new world of access to information, and the principle of promoting competition translates into a myriad of other industries. That is why the Department of Justice has an antitrust division. But when a market, like media distribution, is rapidly decentralizing because of the internet and market forces, the acquisition of a content creator like Time Warner by a content distributor like AT&T does not create a substantial anticompetitive effect in a defined market—the necessary legal standard by which a Clayton Act claim must be measured. That decentralization is the fatal flaw in the government’s argument against AT&T acquiring Time Warner.

Conclusion: Who Will Rule King’s Landing?

To return to a youthful and culturally-relevant metaphor, the individual who occupies the throne in King’s Landing in the HBO series Game of Thrones wields immeasurable power over the Seven Kingdoms and will have their name etched in history. More relevant to the law, however, the government makes a compelling argument for why AT&T should not be allowed to acquire Time Warner. They paint a picture of a future where you won’t be able to watch TV unless you subscribe to DirecTV while Netflix is sent to the ash heap. The Department of Justice portrays AT&T as a power-hungry and brutally cunning Cersei Lannister, the wife of the king in Game of Thrones who will mow down anyone in her way, which they believe is the reason AT&T is trying to acquire Time Warner. To the Department of Justice, AT&T wants to sit on the throne in King’s Landing and rule the Seven Kingdoms, a.k.a. the media market. However, just as the Seven Kingdoms are in hot competition to rule King’s Landing, so are the creators and distributors in the media market. Instead of just competing against ageing pay TV competitors, a combined AT&T/Time Warner will have to compete against companies like Netflix, Hulu, Facebook, and Google, who have multiple millions of loyal viewers and immense market power because the Internet has allowed them to spread and compete. That is the perfect example of the free market at work. Given that the government’s complaint lists both traditional pay TV and newcomers like Netflix as its relevant market[35] (one of the required elements for a Clayton Act action), it is also the miscalculation the government made when filing its case against AT&T. That is because the aforementioned examples chip away at the government’s argument that the acquisition of Time Warner by AT&T will have a substantial anticompetitive effect. While the government may think AT&T will rule King’s Landing, the facts and economic realities facing this case point otherwise.

[1] Complaint, United States v. AT&T, November 20, 2017, at 1.

[2] Id. at 12.

[3] Id.

[4] Standard Oil Co. of New Jersey v. United States, 221 U.S. 1 (1911).

[5] Federal Trade Commission, “The Antitrust Laws,”

[6] 15 U.S.C. § 18.

[7] Federal Trade Commission, “The Antitrust Laws,”

[8] Complaint, United States v. AT&T, November 20, 2017, at 2.

[9] United States v. Pabst Brewing Co., 384 U.S. 546, 548 (1966).

[10] Fed. Trade Comm’n. v. Penn State Hershey Med. Ctr., 838 F.3d 327, 338 (3d Cir. 2016).

[11] United States v. Marine Bancorporation, Inc., 418 U.S. 602, 631 (1974).

[12] See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 324-347 (1962) (in affirming judgment for the government in preventing a vertical integration between the appellant and a smaller shoe company, Chief Justice Warren extensively analyzed the anticompetitive effects this merger would have); United States v. Energy Solutions, Inc., 265 F. Supp. 3d 415 (D.Delaware 2017).

[13] HBO isn’t the only broadcast network Time Warner owns. Through its Turner Broadcasting division, Time Warner owns networks like TNT, TBS, and CNN.

[14] Complaint, United States v. AT&T, November 20, 2017, at 8.

[15] See Id. at 8-10.

[16]Id. at 13. (“[t]his merger would substantially lessen competition among all distributors of professionally produced, full-length video programming services to residential customers in the United States.”).

[17] Id. at 16-17.

[18] Id. at 18-19.

[19] Id. at 12.

[20] Id. at 10.

[21] Id. at 12.

[22] Id. at 15-18.

[23] Id.

[24] See 18 U.S.C. § 15.

[25] [25] Complaint, United States v. AT&T, November 20, 2017, at 13. To prove a Clayton Act violation, the government has to define a market.

[26] See Tom Huddleston Jr., “Netflix Has More Subscribers than Cable TV,” Fortune (June 15, 2017),;Trey Williams, “Hulu subscriber base grew more than 40% in 2017,” Market Watch (Jan. 9, 2018),

[27] See note 17, supra.

[28] Answer of AT&T/Time Warner, November 28, 2017, at 5-6 (“[i]n sum, Time Warner accounts for a valuable, but exceptionally thin, slice of all the video content available to consumers, and AT&T’s legacy video distribution platforms are being squeezed by cable incumbents and tech giants alike. Far from lessening competition, the vertical combination of these assets is necessary to allow the combined company to keep pace in an environment where cable is the incumbent market leader and viewer preferences are rapidly tilting towards the direct-to-consumer platforms of Netflix, Google, Amazon Prime, Facebook, Apple, Hulu, and others.”).

[29] “Cord-cutting is speeding up: here’s how many people ditched cable TV this quarter,” Fast Company (Nov. 15, 2017), (this article specifically refers to DirecTV, which is owned by AT&T, as losing a large number of subscribers).

[30] Jeff Baumgartner, “Decline of Traditional Pay TV Accelerates in Q3,” Multichannel News (November 16, 2017),

[31] Id.

[32] Jon Lafayette, “Study: 55% Drop in Viewers Who Prefer TV Sets,” Multichannel News (April 24, 2017),

[33] Michael J. Santorelli, “Why the AT&T-Time Warner Merger Makes Sense,” The New York Times (November 16, 2017),

[34] See Thomas D. Morgan & Richard J. Pierce, Jr., Modern Antitrust Law and Its Origins 14-15 (2018).

[35] Complaint, United States v. AT&T, November 20, 2017, at 13.

Pre-Hearing Detention: Substantive or Procedural Due Process Analysis

Zach Kurzhals, Associate Member, University of Cincinnati Law Review

It is well established in federal courts that pre-hearing detentions, before arraignment or a comparable formal hearing, are limited in duration by the Due Process Clause (DPC) of the Fourteenth Amendment.[1] However, there is a circuit split over whether to analyze due process claims arising from prolonged detentions under substantive or procedural due process.[2] The circuits proffering an argument for utilizing a procedural due process analysis, over a substantive due process analysis, make a more compelling argument because their premises are simple and direct.

The Substantive Due Process Approach

In Armstrong v. Squadrito[3] Mr. Armstrong surrendered himself after he learned that a “body attachment warrant”[4] had been issued for his arrest regarding for child support arrearages.[5] Following Mr. Armstrong’s detainment the officers placed Mr. Armstrong on a “will call” [6] list of detainees waiting for court. However, a mistake was made in the transposition of Mr. Armstrong’s case number and thus Mr. Armstrong spent 57 days in jail.[7] Mr. Armstrong repeatedly queried about his court date but was repeatedly assured he was on the “will call” list.[8] On a few occasions, Mr. Armstrong wrote out an “Inmate Request Form” and on each occasion the guards refused to accept the forms.[9]  After, Mr. Armstrong’s release, he filed a civil suit against the Sheriff and various other government officials who were directly involved in the detention and jailing of Mr. Armstrong.[10] Mr. Armstrong asserted a § 1983[11] claim based on Constitutional violations under the Fourth, Eighth, and Fourteenth Amendments. The district court granted summary judgement in favor of the defendants with respect to all of Mr. Armstrong’s claims and Mr. Armstrong appealed.

On appeal, the Seventh Circuit reversed and remanded the case for a substantive due process violation. The court believed it necessary to address why Due Process claims in the context of pre-hearing detention should “play out on the yielding natural grass of substantive due process.”[12] The court began by acknowledging the Supreme Court’s reluctance to expand substantive due process when a “particular amendment provides an explicit textual source of constitutional protection.”[13] Next, the court explained that Armstrong’s Fourth and Eighth Amendment claims were insufficient under Seventh Circuit precedent,[14] concluding Mr. Armstrong’s § 1983 claim depended entirely on the Fourteenth Amendment. Finally, the court outlined its three-step analysis under substantive due process: examine whether the DPC protects against extended detention; determine whether the defendants’ conduct offended the standards of substantive due process; and consider whether the totality of the circumstances shocks the conscience.[15]

The court first addressed some procedural concerns. A quote utilized by the court explicitly states finding a DPC violation for prolonged detention would be dependent on the procedures the State afforded the detainee.[16] However, the Armstrong court utilized the quote only to establish that the Constitution guards against extended detention.[17] A second quote used by the court is from Coleman v. Frantz.[18] The Coleman quote finds a “first appearance” to be vital to procedural due process.[19] The court in Armstrong then referred to a “first appearance” as an “established” procedure.[20] The Seventh Circuit also referenced numerous prior court opinions, mainly from the Seventh Circuit, that claim to analyze similar issues under substantive due process.[21] Most of these specific references state an argument akin to: abridgment of an individual’s interest, without proper procedures, is unconstitutional.[22] Lastly, before starting its substantive due process analysis, the court highlighted a procedural deficiency in Mr. Armstrong’s detention.[23] Heretofore opinion appears to be a procedural analysis; this will be discussed later.

For its substantive due process analysis, the court applied a “deliberate indifference”[24] standard that had been recently utilized by the Supreme Court in County of Sacramento v. Lewis.[25] The court found the defendants were deliberately indifferent to a country-wide concern amongst jail administration regarding the possibility of prolonged detention.[26] In applying this standard, the court found all of Mr. Armstrong’s claims survived summary judgement because of the custom of refusing to accept the “Inmate Request Forms.”[27] Finally, the court addressed whether or not this instance of “deliberate indifference,” viewed in the totality of the circumstances, shocks the conscience. Efforts to bring Mr. Armstrong before a judge were less than those in Coleman,[28] and the conduct in Coleman shocked the conscience, thus the court determined the defendants’ deliberate indifference must certainly “shock the conscience.”[29] Having found Armstrong’s case to survive this three-part analysis, the court reversed the District Court’s summary judgment and remanded the case.

Procedural Due Process Approach

In April of 2012, Jessica Jauch was indicted by a grand jury on drug-related charges and a capias warrant was issued. Ms. Jauch was arrested, detained in jail, and presented with a misdemeanor warrant and the capias. Ms. Jauch cleared the misdemeanor warrant within a few days and remained detained on the capias warrant. Ms. Jauch made requests to be brought before a judge and protested her innocence. However, she was told she could not be taken before a judge until August, which was the next time the court would convene. Ms. Jauch waited 96 days before being brought before a judge. Ms. Jauch brought a civil suit under § 1983 asserting Sixth, Eighth, and Fourteenth Amendment violations. The district court treated Ms. Jauch’s Fourteenth DPC claim as a challenge to the probable cause underlying her arrest and detention but believed the Fourth Amendment was more apt and found the government had indisputable probable cause.[30] Ms. Jauch’s case was dismissed.

In Jauch v. Choctaw County[31] the Fifth Circuit does not rule out the possibility of substantive due process analysis in prolonged detention cases. However, the court does state they understand such cases to always “raise the immediate question of whether . . . procedural due process rights have been violated.”[32]  Thus, taking the Fifth Circuits opinion at face value leaves open the question of which analysis, procedural or substantive, should be used in prolonged detention cases. It also seems possible the answer may be either. However, citing and referencing several Supreme Court cases, the Fifth Circuit focused their analysis in the procedural realm and used Medina as their guide to find a due process violation.[33]

The Fifth Circuit first identified the constitutional interest at issue, Jauch’s liberty. Next, the court recognized it must identify the process due.[34] However, the court did not decide which procedural due process test should apply.[35] The court manifested, because the “indefinite-detention procedure” of the defendants violated Jauch’s right to procedural due process under the more “narrow[] inquiry” of the Medina test, the court did not need to resolve whether the Mathews Balancing test[36] or the Medina test should apply.[37]

First, the Fifth Circuit  outlined the two possible routes under the Medina Test for finding a procedural due process violation: the procedure “(i) ‘offends some principle so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or (ii) ‘transgresses any recognized principle of ‘fundamental fairness’ in operation.’”[38] The Fifth Circuit then looked to English historical practices as a guide to this first inquiry.[39] The court found an indefinite-detention procedure, without an arraignment or other court appearance, offends the same fundamental principles of justice that birthed the Sixth Amendment right to a speedy trial and Eighth Amendment prohibition of excessive bail.[40] Next, the court looked to contemporary practices and noted that it was the norm for state rules to require persons be brought before a judicial officer promptly or without unnecessary delay.[41] Thus, upon finding “no sanction, historical or modern, for the defendants’ indefinite detention procedure” the court determined the procedure at issue failed Medina’s historical test. The court also noted prolonged pre-trial detention without judicial oversight and an opportunity to assert constitutional rights is facially unfair and opposes the recognized principles of “fundamental fairness.”[42] The court concluded its procedural analysis stating if Medina is the proper test, it is because denying criminal defendants a hearing before prolonged detention denied those “defendants their enumerated constitutional rights relating to criminal procedure by cutting them off from the judicial officers charged with implementing constitutional criminal procedure.”[43]


The specific question in Jauch was whether a state could detain someone until a court reconvened several months after the defendant’s arrest. The court in Jauch attacked this question in the most direct manner possible. The court determined the right at issue: a mixture of speedy trial and bail. The Fifth Circuit then searched historical references to determine that in 1166 the right for speedy trial proscribed that an alternate judge be found to ensure “justice be not delayed.”[44] Continuing this direct approach, utilizing Supreme Court precedent, the Fifth Circuit was able to conclusively say that our country claimed these rights of Englishmen and adopted them as our own under their Constitutional counterparts.[45] Thus, a clear historical line was developed supporting a due process right requiring procedures that safeguard the fundamental principles birthing the Sixth and Eighth Amendments.

Reading the Seventh Circuit opinion in Armstrong it appears something is omitted from the logical procession warranting a need for substantive due process analysis. The Seventh Circuit does not explicitly address why substantive, and not procedural due process, should be utilized under the Fourteenth Amendment’s DPC.[46]

Simplified, the first half of the Armstrong opinion is the Constitution requires the process “Y,” or its equivalent, to curb “X.” The court then specifically pointed to procedural deficiencies that equated to: the defendants overstepped their authority while infringing on Armstrong’s rights.[47] The court in Armstrong could have finished their discussion here and called it a procedural due process violation. Instead, the court ventured into the messy jurisprudence of substantive due process. The second half of the Court’s opinion must be: although the Constitution creates the procedural requirement “Y,” it does not explicitly state requirement “Y,” therefore the constitutionally required procedure is substantively guaranteed. When the premise the court’s opinion relies upon is articulated it becomes clear the argument for a substantive approach becomes unsustainable in the face of a procedural analysis alternative. Especially given they both provide the same remedies under a § 1983 claim. Indeed, the Seventh Circuit admits that any orderly approach deteriorates within substantive due process.[48]

Upon closer inspection it appears the Seventh Circuit, claiming to analyze prolonged detention under substantive due process, actually used a mixture of procedural and substantive due process analysis.[49] The court wrote an opinion approximately twice as long as was needed to provide sufficient support for their determination.[50] Judicial efficiency supports a more direct procedural due process approach.

Under Seventh Circuit precedent, in order for a court to find a procedure inadequate, in this context, would require a finding that the state actors were “deliberately indifferent.” However, to be “deliberately indifferent” requires first being on notice of a deficiency. Surely, a Constitutional right, something intended to be absolute outside of procedural safeguards, cannot depend on an individual’s knowledge of a violation. The outcome should not be dependent on whether Armstrong had the courage to voice his concerns and frustration with his incarcerators. Should a detainee have remained silent, a court could compare historical and contemporary practices against the process at issue. This comparison could include the amount of time detained. This is the analysis offered in Jauch.[51]

The Seventh Circuit also does not argue that only one procedure, an arraignment hearing, is the sole procedure by which the government can ensure an individual’s Constitutional rights are protected. Just as the Jauch court mentioned, the possibility of alternate procedures in lieu of first appearances, to ensure defendant’s rights, seems particularly susceptible to a Mathews balancing test. By utilizing a procedural analysis the courts leave more options available to individual states to implement their local preferences and operate under their unique constraints. Although the Supreme Court has determined that state laws do not create substantive constitutional rights, contemporary considerations within Medina’s due process analysis allows courts to consider modern principles of due process.[52] Thus, even the concern that a more historical approach under procedural due process may lead to odds with contemporary understandings, the concern is at most a temporary one. American jurisprudence is not a fast changing animal. Our laws tend to begin changing long before our perceptions of the rights underscoring the laws advance. However, when those perceptions match, they will then have a historical basis to look back upon, albeit, a shorter more modern basis. It could be argued the Founders intended our laws to be resistant to arbitrary modifications.


Defendants have a right to a speedy trial and reasonable bail. Although under many jurisdiction’s precedent, what some outside the legal community might call a technicality, the Sixth and Eighth Amendments are not directly applicable to pre-hearing detention. However, certainly no one could argue with any iota of sincerity that the fundamental principles that underpin the Sixth and Eighth Amendments do not also embrace pre-hearing detention. It is this basic argument that makes the analysis in Jauch so easy and straightforward. One might also think any “fundamental right” would have sufficient historical and contemporary support, similar to Jauch’s case, and to make this easy analysis repeatable. Judicial resources, the simplicity of objective analysis, legal stability all favor a procedure due process approach in pre-hearing detention cases.

[1] Jauch v. Choctaw Cty., 874 F.3d 425, 437 (5th Cir. 2017); Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1483 (9th Cir. 1992); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998); Hayes v. Faulkner Cty., Ark., 388 F.3d 669, 676 (8th Cir. 2004).

[2] Currently the Seventh and Eighth circuits use a substantive due process analysis and the Fifth and Ninth Circuits use a Procedural Due Process Analysis. Jauch, 874 F.3d 425, 437 (utilizing procedural due process); Oviatt, 954 F.2d 1470, 1483 (utilizing procedural due process); Armstrong, 152 F.3d 564, 582 (utilizing substantive due process); Hayes, 388 F.3d 669, 676 (utilizing substantive due process).

[3] 152 F.3d 564, 582.

[4] A writ of body attachment, or body attachment warrant, is a process issued by the court directing the authorities to bring a person who has been found in civil contempt before the court.

[5] Arrears (or arrearage) is a legal term for the part of a debt that is overdue after missing one or more required payments.

[6] A “will call” list is simply a list of detainees that are to appear before a judge and the court informed the jail which detainees were to be seen each day.

[7] Armstrong, 152 F.3d 564, 567.

[8] Id.

[9] Id. The guards would explain to Mr. Armstrong that the forms were of no use because the officers could answer his questions faster.

[10] Mr. Armstrong’s boss eventually hired an attorney who was able to quickly gain Armstrong’s release. The attorney was able to secure Mr. Armstrong’s release by obtaining a court order requiring Armstrong to pay weekly child support plus arrearages.

[11] A §1983 claim comes from federal law 42 U.S.C. § 1983, which allows claims based on Constitutional rights.

[12] Armstrong, 152 F.3d 564, 569 (rejecting the procedural approach laid out by the Ninth Circuit in Oviatt, 964 F.2d 1470).

[13] Id. (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).

[14] Id. at 569-570. The court explained that they understood the Fourth Amendment to govern the period of confinement between arrest without a warrant and the preliminary hearing and in this case a warrant was issued. Citing Villanova v. Abrams, 972 F.2d 792, 797 (7th Cir. 1992). The court then explained that under their precedent, the Eighth Amendment only applies to convicted prisoners and not pretrial detainees. Citing

Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

[15] Armstrong, 152 F.3d 564, 570.

[16] Id. at 572 (citing Baker v. McCollan, 443 U.S. 144-145 (1979)).

[17] Id.

[18] Id at 572-573.

[19] Id.

[20] Id. (citing Coleman v. Frantz, 754 F.2d 719, 734 (7th Cir. 1985); Patton v. Przybylski, 822 F.2d 697 (7th Cir.1987)) (Finding these cases to show it is through this right of first appearance that an arrestee receives the necessary information for them to ensure the rest of their constitutional rights are protected.).

[21] Id.

[22] Id. (citing Brown v. Patterson, 823 F.2d 167 (7th Cir.1987) (detaining someone without verifying their identity is a DPC violation); Johnson v. City of Chicago, 711 F.Supp. 1465, 1470 (N.D.Ill.1989) (“[A] prolonged detention, coupled with the failure to investigate a claim of mistaken identification, may suggest a deprivation of liberty without due process.”).

[23]The court explained that the writ utilized in the case represented the mere authority of detaining and immediately taking the person to court. Therefore, the defendants exceeded the authority provided under the procedure utilized. Id. at 576.

[24] This standard applies to government actors acting in a custodial capacity and has the “luxury of forethought.” Id.

[25] Under the substantive due process standard of “shocks the conscience,” the Supreme Court found that when a government actor, acting in a custodial capacity, was “deliberately indifferent” to the needs of those under their care, such deliberate indifference may be enough to shock the conscience because the actors had the luxury of forethought and decided not to act. Id. at 581 (referencing County of Sacramento v. Lewis, 523 U.S. 846-849 (1998)).

[26] Id. at 579 (“[H]ow much more basic could it get—jails cannot confine people without the authority to do so.”).

[27]Although the Sheriff and Municipality operated under a policy that allowed detainees to make complaints and inquiries through “Inmate Request Forms,” which would allow the jail administration to minimize injury from prolonged detention, the defendants also had a policy or custom of not accepting those forms. Thus, the court determined that this policy or custom implicated each of the defendants whether through their direct refusal or through the abdication of the duty to ensure detainees see court to those that ultimately refused the forms. Id.

[28] 754 F.2d 719, 734 (7th Cir. 1985). The Seventh Circuit found the actions of a Sheriff to “shock the conscience” despite the Sheriff’s repeated efforts at arranging a court appearance. However, Coleman lost his civil suit because the court found the defendant to be entitled to qualified immunity.

[29] Armstrong, 152 F.3d 564, 582.

[30] Id. at 428.

[31] 874 F.3d 425, 437 (5th Cir. 2017).

[32] Id. at 431 (referencing Fuentes v. Shevin, 407 U.S. 67, 81-82 (1971), stating the right to a notice and a hearing is a right of procedural due process).

[33] Id. (“The Supreme Court, however, has turned to Medina repeatedly.”).

[34] Ky. Dep’t of Corr. V. Thompson, 490 U.S. 454, 460 (1989).

[35]The Fifth Circuit recognized due process claims concerning state criminal procedures are to be analyzed under the Medina test. Kaley v. United States, 134 S.Ct. 1090. However, the Fifth Circuit also noted that the procedure at issue, “confinement with process deferred,” is unlike criminal procedures normally considered within the Kaley and Medina line of precedent. Jauch, 874 F.3d 425, 431.

[36] Procedural due process “requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.” Mathews v. Eldridge, 424 U.S. 319, 321 (1976).

[37] Jauch, 874 F.3d 425, 431. (mentioning that Oviatt used the Mathews test before Kaley had been decided).

[38] Id. at 432 (citing Kincaid v. Gov’t of D.C., 854 F.3d 721, 726 (D.C. Cir. 2017).

[39] Id.

[40] Id.

[41] Id.

[42]Id. at 434 (citing Gerstein, 420 U.S. at 114, which discusses the severity of the consequences associated with prolonged detention).

[43] Id. at 435.

[44] Id. at 432 (citing Assize of Clarendon ¶4 (1166)).

[45] Id. at 434 (“At the embryonic stage, we claimed all the rights of Englishmen.”) (citing Hurtado v. California, 110 U.S. 516, 540 (1884)).

[46] Instead of fulling explaining their decision to embark down the substantive due process path, they cite

Villanova v. Abrams, 972 F.2d 792, 798 (7th Cir. 1992) for “describing ‘the persistent fallacy that procedural requirements create substantive entitlements.’”).

[47] Armstrong, 152 F.3d 564, 576.

[48] Id. at 570. (“Unfortunately, this orderly approach deteriorates when the constitutional right exists, if at all, as a matter of substantive due process.”).

[49] The historical analysis of Indiana’s treatment of their writ is remarkably similar a contemporary analysis under the Medina test.

[50] Id. at 576.

[51] Jauch, 874 F.3d 425, 432 (“’Historical practice and, to a lesser extent, contemporary practice’ guide our first inquiry.”) (quoting Kincaid v. Gov’t of D.C., 854 F.3d 721, 726 (D.C. Cir. 2017)).

[52] Medina v. California, 505 U.S. 437 (1992) (considering contemporary practice on placing the burden of proof on competency).

The Right to A Speedy Trial: A Road Crowded With Speedbumps

Alexandra Soisson, Associate Member, University of Cincinnati Law Review

From the moment a suspect is arrested, the clock starts. The police, attorneys, and investigators have thirty days to make their case.[1]They have thirty days to gather enough evidence to officially indict the suspect, and if they cannot build their case within the permitted thirty days, the preliminary charges against the individual must be dismissed.[2] Seems simple enough. However, as with most “simple” laws or regulations, there are a number of exceptions that can extend the thirty-day limit and leave individuals in jail for far longer than the “maximum.”[3] These exceptions allow the courts to tack on days, weeks, and months to the original thirty days for any number of reasons, both alluded to and prescribed within the statute.[4] Time extensions to negotiate plea deals is one area where courts have stretched the thirty-day requirement.[5] However, not all courts are applying the exception for plea discussions in the same way.

In four circuit courts, the plea negotiation exclusion allows the thirty-day period to be automatically extended while the defendant engages in plea discussions with the government. In contrast, the same number of circuit courts ruled that there must be an additional showing before the clock will be stopped for plea discussions. This split revolves around whether plea discussions should be automatically excluded as “resulting from other proceedings concerning the defendant” or should require an additional showing that the discussion “serves the ends of justice” in order to be excluded.[6] Eight circuit courts have all weighed-in on the issue creating an even split between the circuits on whether plea negations should per se be considered an excludable delay.[7] The split will hopefully be resolved by the Supreme Court in the upcoming year.[8] Given the importance of genuine plea discussions to the efficiency and capacity of the justice system and the benefits derived from promoting such discussions, the Court should hold that plea negotiations are an excludable delay under the Time Limits and Exclusions provisions of Title 18 of the U.S. Code.[9] However, that exclusion should only be permitted when the delay is found to be productive for the court, the defendant, and the people.[10]

The Origins of the Right To A Speedy Trial

Fundamental to our rights as citizens of the United States, the constitutional authors saw it necessary to include the right to a speedy trial as one of the basic rights guaranteed in the Bill of Rights.[11] Since the right to a speedy trial was ratified over 200 years ago, it has been modified and clarified through various legislation and litigation including the Speedy Trial Act of 1974.[12] In Barker v. Wingo, the Supreme Court held that a delay of nearly five years was not a violation of the right to a speedy trial because the defendant had not affirmatively invoked his right to a speedy trial. Since then, Congress enacted legislation that would more clearly define the parameters of the right to a speedy trial.[13] In Barker, the Court reasoned that the right to a speedy trial was more vague than other constitutional guarantees and thus it cannot be quantified into a specified number of days.[14] Instead, the Supreme Court outlined a balancing test that should be applied case-by-case to determine whether a defendant’s right to a speedy trial had been violated.[15]

Rather than rely on the case-by-case balancing test set forth by the Supreme Court, Congress passed the Speedy Trial Act in 1974, which outlined specific time limits for what is  considered “speedy” under the Sixth Amendment.[16] Congress disagreed with the Court’s assertion that the right to a speedy trial could not be quantified into a specified time limit and explicitly stated, among other provisions, that “[a]ny information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”[17] This specificity was designed to resolve the existing injustice in a case-by-case analysis by creating identical and equal standard for federal prosecutions.[18] But there are always exceptions.

Applying The Exceptions

Following the provision of the Speedy Trial Act that prescribes the thirty-day requirement is the section that outlines the exceptions. §18 U.S. §§ 3161(h)(1) lists eight events or “delays” which can be excluded from the thirty day requirement.[19] This section of the Act notes that the listed exceptions “shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence.”[20] This means that if one of the listed events, or delays, occurs, the thirty-day clock is stopped until the conclusion of the event and then the clock resumes. The problem is that courts are not stopping the clock with the same regularity. Though the authors of the Act listed specific delays when the clock is allowed to stop, courts have found ambiguity about whether these events are automatically excluded from the time requirements or if they should be applied only when there is a productive purpose that can be clearly articulated to the court.[21]

This difference in interpretation means that some delays are being counted against the required thirty days, whereas the same delays are pausing the clock in other jurisdictions.[22] One area where there has been a significant split in application is plea negotiations. Delays resulting from “consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government” is listed as an exception to the thirty-day requirement.[23] The Second, Fifth, Ninth, and Eleventh Circuits have held that delays resulting from plea negotiations may only be excluded where the judge has found that the delay “serves the ends of justice.” or, in other words, is seemingly productive for the court.[24] Conversely, the Fourth, Sixth, Seventh, and Eighth Circuits have held that delays resulting from plea negotiations are automatically excluded as events “resulting from other proceedings concerning the defendant,” a specified exclusion under 18 U.S. § 3161(h)(1).[25]

“Serves the end of Justice”

Recently, the Eleventh Circuit, in following three other circuit courts, held that plea negations do not automatically pause the thirty-day time period.[26] The Court specifically noted that its holding did not mean plea negotiations can never stop the “speedy-indictment clock,” but rather its ruling only explicitly prevented the automatic exclusion of time spent in plea negotiations under the Speedy Trial Act.[27] Referencing a subsection of the Speedy Trial Act which asserts that a judge may grant continuance beyond the thirty-day limit if he finds that “the ends of justice is served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,” the court reasoned that Congress did not intend for the clock to automatically pause if the delay did not further the interest of the parties and the people.[28] Rather, the court found, Congress intended to leave open the possibility that one or both parties may need more than thirty days before an indictment could be filed and that the thirty days should be provided but only if the “ends of justice” were served by providing that extension.[29] The court applied this “serves the end of justice” standard to plea discussions.[30] In short, the court held the judge should determine if the extension is a productive use of time for the defendant, government, and people; if not, the extension should not be granted.[31] The Eleventh Circuit noted that if the plea negotiation exclusion automatically applied, the government could simply state that they were negotiating a plea agreement and then delay the process as along as they wish while attempting to build their case.[32] The court’s concern over this potentially indefinite delay aims to protect both the defendant and the people’s interest in swift administration of justice.[33] Referencing the Supreme Court’s recent holding that the purpose of the Speedy Trial Act is not only to protect defendants but also to “vindicate the public interest in the swift administration of justice,” the Eleventh Circuit attempted to protect those interests in the rulings regarding plea agreements. [34] With that in mind, the Eleventh Circuit, in joining three other circuit courts, held that time spent in plea negotiations is not automatically excluded from the thirty day timeline.

“Other Proceedings Concerning the Defendant”

In 2017, the Sixth Circuit interpreted the language of the Speedy Trial Act to automatically exclude time spent in plea negotiations from the thirty days.[35] Joining the Fourth, Seventh, and Eighth Circuits, the court found that plea negotiations should be automatically excluded because they constitute another proceeding concerning the defendant. Preceding the list of excludable delays, the text of the Act reads that “any period of delay resulting from other proceedings concerning the defendant” shall be excluded from the thirty days.[36] The Sixth Circuit found that plea negotiations fit firmly into this category and interpreted the text to mean that proceedings found to fit into this category are automatically excluded from the thirty days.[37]

The Exclusion Must Serve the End of Justice

The reasoning by the Eleventh Circuit—and its followers— more appropriately supports the goals of the Speedy Trial Act and the justice system as a whole. The primary goal of the speedy trial guarantee under the Sixth Amendment was to ensure that defendants did not have their liberty restrained unnecessarily or unreasonably if the government was unable to build a workable case against them. Similarly, the goal of the Speedy Trial Act was to protect the defendant. However, in addition the Speedy Trial Act also set out to protect the interest of the public by not wasting unlimited amounts of resources trying to build cases against defendants that have little chance of securing a conviction. The plea negotiation exclusion has caused more concern than the other seven delays in the Act because of the lack of set time schedules for plea discussions. The remaining seven delays are more generally controlled by the court, so the court can impose a timeline that will keep the delay within reasonable limits and the process occurs on a more regulated schedule. On the contrary, plea discussions are more informal and court-controlled timelines are less common, so it creates potential for time and resources to be wasted while the defendant’s right to a speedy trial is essentially put on hold. The Eleventh Circuit’s holding that there must be a concrete end of justice being served, or in other words, a clear goal or purpose of the plea discussions, attempts to combat that informality of plea discussions and connect it to a tangible result. This creates a more controlled timeline for the extension and makes it less likely that the clock will be stopped arbitrarily.

A requirement that the plea discussion serve the “ends of justice” attempts to ensure that the spirit of the thirty-day requirement is honored and only extended if it serves the interests of both parties and people. Notably, the Eleventh Circuit is not attempting to completely remove plea discussions from the list of excludable delays and in fact notes that the “ends-of-justice continuance” is the most open-ended under the act. This open-ended standard means that as long as the parties can make a showing that justice is being served by excluding the time spent in plea negotiations, that exclusion will generally be granted. In other words, it is not a tough barrier for defendants or the government to meet as long as they have a genuine reason to engage in the discussions. This means that the importance of genuine plea negotiations will still be honored and it will not be difficult to exclude time spent in those negotiations if parties are serving the true purpose of the agreements. Therefore, by rejecting the automatic exclusion of plea negotiations, the court will simply be able to prevent parties from needlessly wasting the time and resources of the court, the parties, and the public.[38]

In January of 2018, the Supreme Court granted certiorari to decide whether the time spent in a plea negotiation is automatically excludable as “other proceedings concerning the defendant” or whether the time is only excludable if the court makes an “ends of justice” finding.[39] The Supreme Court should follow the precedent of the Eleventh Circuit and the three other circuit courts which found that plea agreements should only be excluded when the serve an actual purpose, not when they are being used as a tool to get around the requirements of the Speed Trial Act.

Although the purpose of the Act was to move away from a case-by-case determination of whether a person’s Sixth Amendment right to a speedy trial had been violated, it seems that some version of that analysis is still necessary.[40] The thirty-day benchmark is an important starting place for assessing violation of Sixth Amendment rights and so departures should only be made in cases where there is a legitimate reason to extend the timeline. The Supreme Court has held, and reason stands to agree, that the best interest of the defendant, the government, and the public is served when trials are approached with efficiency and only in the circumstances where there is a tangible “ends of justice” should that efficiency be overlooked.

[1] 18 U.S. § 3161(b) explicitly states that “Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges.”

[2] 18 U.S. § 3162(a)(1) requires that “If…no indictment or information is filed within the time limit required by section 3161(b) as extended by section 3161(h) of this chapter, such charge against that individual contained in such complaint shall be dismissed or otherwise dropped.

[3] 18 U.S. § 3161(h) outlines a number of delays that are excluded in computing the time within which an indictment must be filed.

[4] Id.

[5] Shon Hopwood, Comment, The Not So Speedy Trial Act, 89 Wash L. Rev. 709, 713 (2012).


[6] United States v. White, 679 Fed. Appx. 426, 429 (6th Cir. 2017).

[7] The Second, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits have all ruled on the issue.

[8] White v. United States, Scotus Blog (Jan. 08, 2018),

[9] 18 U.S. § 3161.

[10] 18 U.S. § 3161(h).

[11] U.S. Const. amend. XI.; “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…”

[12] Speedy Trial Act of 1974, 18 U.S. § 3161, 93rd Cong. (1974).

[13] Barker v. Wingo, 407 U.S. 514, 547 (1972).

[14] Id. at 521.

[15] Id.; the Court found that courts should consider the following factors when considering if a defendant was denied his right to a speedy trial: length of the delay, reason for the delay, the defendant’s assertion or nonassertion of his right, and prejudice to the defendant resulting from the delay.

[16] Speedy Trial Act of 1974, 18 U.S. § 3161, 93rd Cong. (1974).

[17] 18 U.S. § 3161(b).

[18] Though the Sixth Amendment was incorporated to the states through the Due Process Clause, the specific protections provided by the Speedy Trial Act only applied to federal cases, not state cases. The act merely serves as a guideline in state cases.

[19] (A)delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant; (B)delay resulting from trial with respect to other charges against the defendant; (C)delay resulting from any interlocutory appeal; (D)delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion; (E)delay resulting from any proceeding relating to the transfer of a case or the removal of any defendant from another district under the Federal Rules of Criminal Procedure; (F)delay resulting from transportation of any defendant from another district, or to and from places of examination or hospitalization, except that any time consumed in excess of ten days from the date an order of removal or an order directing such transportation, and the defendant’s arrival at the destination shall be presumed to be unreasonable; (G)delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and the attorney for the Government; and (H)delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.

[20] 18 U.S. § 3161(h).

[21] 18 U.S. § 3161(h)(1), emphasis added.

[22] Michelle Nussbaum, Negotiate and Chill: How (and Whether) The Time for Plea Negotiations Can be Excluded Under the Speedy Trial Act, Sunday Splits (Oct. 23, 2017),

[23] 18 U.S. § 3161(h)(1)(G), emphasis Added.

[24] United States v. Mathurin, 690 F.3d 1236, 1243 (11th Cir. 2012).

[25] White, 679 Fed. Appx. at 429, emphasis added.

[26] Mathurin, 690 F.3d at 1241, emphasis added.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Mathurin, 690 F.3d at 1241; 18 U.S.C. § 3161(h)(7)(A).

[32] Mathurin, 690 F.3d at 1242.

[33] Id.

[34] Id. citing Bloate v. United States, 130 S. Ct. 1345, 1356 (2010).

[35] White, 679 Fed. Appx. at 434.

[36] 18 U.S.C. § 3161(h)(1).

[37] White, 679 Fed. Appx. at 431.

[38] Of course, there is the potential that this potential that this requirement will lead to fewer defendants engaging in plea discussions and choosing to wait to trial, which could use more public resources. However, the idea behind the provision is not to cut down on the number of plea discussions, but rather to make those discussions more efficient.

[39]; the petition was granted. However, judgment was vacated and the case was remanded for further consideration in light of the confession of error by the Solicitor General in his brief for the United States filed on November 30, 2017.

[40] Case-by-case determinations can be used to ensure that the “ends of justice” are actually being served in plea discussions on an individual basis.

Casket Protectionism

Alexander Foxx, Associate Member, University of Cincinnati Law Review


Current news focuses on economic protectionism between the United States and other nations. For example, the United States recently imposed a protectionist tariff on washing machines.[1] However, economic protectionism is not limited between the United States and other nations; it is well established in the economies of individual states.[2] Such state protectionism is often manifested in state laws insulating specific industries from competition.[3] The constitutionality of this protectionism is the subject of disagreement between the Federal Circuit Courts of the United States.[4]

This article maintains that intrastate economic protectionism, implemented for the sole purpose of economic protectionism, can be ruled unconstitutional under the Fourteenth Amendment. The article first provides necessary constitutional background for understanding the economic protectionism debate. It then examines the different holdings of three Circuit Courts; the holdings of the Fifth and Sixth Circuits, against intrastate protectionism, and the holding of the Tenth Circuit, supporting intrastate protectionism. After examining the Circuit Court holdings, this article will frame the decisions against a holding by the Supreme Court. Finally, the article will analyze the presented case law and conclude that laws passed solely for intrastate economic protectionism should be held unconstitutional because they violate the Fourteenth Amendment’s equal protection clause under a rational basis review.

Constitutional Background

The cases discussed concern caskets. Namely, state laws passed protecting licensed funeral directors from unlicensed casket makers.[5] However, the Commerce Clause of the Constitution prevents states from restricting interstate commerce.[6] Therefore, the challenged laws all regulate the sale of caskets in the state of seller.[7] For example, the challenged law would not prevent an Ohio casket-maker from selling a casket in Kentucky. It would prevent an unlicensed casket-maker in Ohio to sell that casket in Ohio.

Given the intrastate nature of the challenged laws, the test used to evaluate the law is the rational basis test because laws drawn to form economic classifications do not create a protected class that requires a higher level of court scrutiny.[8] The rational basis test is used to evaluate a law under the due process and equal protection clauses of the Fourteenth Amendment. The test maintains a law that creates classifications of individuals (e.g. licensed casket sellers and unlicensed casket sellers) must bear “some rational relationship to a legitimate, governmental purpose.”[9] This is traditionally considered a less stringent test under the Fourteenth Amendment, in comparison to the strict scrutiny (used for certain protected classes, like race) and intermediate scrutiny (used for other protected classes ,like gender) standards. Even if a classification of individuals creates a disparate impact, it is still constitutional if the challenged law has at least a minimal connection to the governmental interest.[10] For example, a law harming employment chances of methadone users is constitutional, even if it has an uneven racial impact.[11]Powers v. Harris

In the case of Powers v. Harris the Tenth Circuit held economic protectionism, without a further purpose, was constitutional.[12] In this case, Oklahoma maintained a law that prevented the intrastate sale of caskets by individuals who were not licensed funeral directors.[13] Obtaining a license was not a nominal task—it required substantial education and training.[14] The plaintiffs were an Oklahoma corporation who sold caskets online.[15] The Plaintiffs were licensed in other states, but not Oklahoma, and sought a declaratory judgment[16] stating that their sale of caskets in Oklahoma would be legal.[17]

The plaintiffs maintained there was no rational connection between the licensing requirements and the sale of caskets and therefore the law was unconstitutional under the rational basis test and violated the Fourteenth Amendment.[18] To establish a lack of rationality, the plaintiffs indicate the education requirements of licensure do not correlate to the sale of caskets and such education requirements are not necessary for consumer protection.[19] The court seemed to concede this lack of correlation by noting that the “licensure requirements do not perfectly match its asserted consumer-protection goal.”[20]

However, even without a strong nexus between the licensure and the goal of consumer protections, the court noted  “the Tenth Circuit has held that state legislation granting special benefits to an intrastate industry…does not run afoul of the Equal Protection Clause.”[21] The court relied on an application of the rational basis test, which rendered the test nearly toothless.[22] The court expanded the nexus between the governmental interest and purpose of the law to “every conceivable” basis, .[23] Further, the court maintained that given the extreme difficulty in invalidating any law under the rational basis test, placing a nearly insurmountable burden on the challengers of the law.[24] This legal interpretation created an weak rational basis test, even by rational basis test standards.

Under the Tenth Circuit’s application of the rational basis, the test places a on the plaintiffs to prove the absurdity of the Oklahoma law. Intrastate protectionism was determined to be a legitimate governmental interest furthered by the Oklahoma law and not a violation of the Fourteenth Amendment’s Equal Protection Clause.[25]

Craigmiles v. Giles

In contrast to the Tenth Circuit, the Sixth Circuit struck down a state law based solely on economic protectionism in Craigmiles v. Giles.[26] Unlike Powers, the plaintiffs in Craigmiles were not seeking a declaratory judgment—they had been actively served with a cease and desist letter relating to their unlicensed intrastate sale of caskets.[27]

The Sixth Circuit held “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”[28] The defendant argued the law preventing the unlicensed sale of caskets was meant to protect consumer health and safety and consumer protection.[29] The Court disapproved of these arguments as excuses for protecting illicit economic protectionism noting the “only difference between the caskets is that those sold by licensed funeral directors were systematically more expensive” and therefore there was no rational relationship between the restriction on casket sellers and the alleged governmental interest.[30]

The Sixth Circuit applied a version of the rational basis test that “while deferential, [was] not toothless.”[31] The court noted the law did not protect consumers, but only served to harm consumer finances and protect a discrete trade of funeral directors.[32] The court remarked while invalidation of economic legislation by courts is rare, it is not inappropriate where the goal of such legislation bears no relationship to its purported purpose, save to promote a barrier to trade.[33] The court ruled intrastate economic protectionism violated the Fourteenth Amendment.[34]

St. Joseph Abbey v. Castille

Craigmiles and Harris occurred in 2002 and 2004, respectively. Castille was decided more recently in 2013 by the Fifth Circuit and it followed the market competition holding of Craigmiles.[35] This case provided a more contemporary view of intrastate economic protectionism.

The plaintiffs in Castille are markedly differ from both those in Craigmiles and Powers. Namely, the plaintiffs in Castille are a non-profit Abbey[36] that makes caskets and sells them to support the Abbey and its monks.[37] The restricting law in Castille also appears to be broader than the law in Powers and Craigmiles. Specifically, the law in Castille requires that casket sellers also be a licensed funeral home, which requires “a layout parlor for thirty people, a display room for six caskets, an arrangement room, and embalming facilities.”[38] These varied facts may indicate why the Court was hostile to a law based on intrastate economic protectionism.

Following a line of analysis extremely similar to Craigmiles the Fifth Circuit noted that there was not a rational relationship between the casket regulation and public safety or consumer protection.[39] While recognizimg the “great deference” demand by a rational basis review, the Court, departing from Powers, says that “judicial blindness” cannot be employed in reviewing a challenged rule.[40] In its closing thoughts the Court also noted the protection of consumers and the market from blatant economic protectionism, which has no other discernible purpose, is a valid judicial exercise.[41]

Williamson v. Lee Optical

Lurking behind the circuit split is the landmark Supreme Court case of Williamson v. Lee Optical. In this case, the Supreme Court held a law requiring an optician to require a vision prescription from an ophthalmologist before selling lenses to a consumer, was valid under the rational basis standard.[42]

However, Williamson can be distinguished substantially. First, the regulation of prescription lenses strikes much closer to protecting public health than the purported protections offered by casket regulation.[43] Eyeglasses are a medically needed product that treat living humans—caskets are not.  Williamson seemed to serve other legislative policies than economic protectionism. Referencing Williamson the Castille court noted, however, “a naked transfer of wealth” through economic protectionism cannot be upheld without a further governmental interest.[44]

Cragmiles and Castille Should Govern

The judiciary consistently defers to the legislature for reasons of separation of powers and for public policy reasons in supporting the more democratic nature of the legislature. Deference, however, does not implicate a complete abdication of review of state law as suggested by Powers. A critical role of courts is to strike down laws that run afoul of the Constitution. Laws that are drawn solely to protect economic interests serve no purpose save for the select few industry members that are protected by the law—they harm consumers and economic growth. If the logic of such laws were carried to their logical extreme, a single individual, perhaps a governor, could be granted exclusive right to sell a good intrastate. Such blatant favoritism runs afoul of due process under the rational basis test–a further purpose for protectionism is needed beyond industry interest.

The rational basis test is not a difficult burden to satisfy. Economic protectionism of a few at the expensive of the many is not a legitimate economic interest. It violates the spirit of the Constitution’s Commerce Clause and the national public policy of allowing for free markets.[45] Caskets are a common good. Protectionism for its own sake is legally indefensible; it does not promote a legitimate governmental interest. It only promotes a legitimate industry interest and industries do not govern states—governments do.

An argument can be made that naked economic protectionism is a legitimate governmental interest; Powers and Williamson support this proposition. This argument can be addressed with an examination of the Commerce Clause, which is meant to prevent interstate economic protectionism. At some point, intrastate restriction bleeds interstate restriction, as seen in the above cases. Individuals living on the borders of certain states cannot participate in the economy of one state due to restrictive laws—interstate commerce has essentially been restricted due to the legal fiction of state boundaries. This violates, not only the Fourteenth Amendment under the rational basis test, but also the Commerce Clause.

There is dedicated support of competitive markets in the United States. Free markets are deemed to provide favorable prices, products, and services. So strong is our support of free markets that an entire area of law is dedicated to protecting it—antitrust law. Intrastate economic protectionism runs afoul of this support of free markets. Intrastate economic protectionism violates the Fourteenth Amendment.


These economic regulations do not bear a rational relationship to a legitimate governmental interest. The laws purported interest of public safety or consumer protection are not related to the restriction of the sale of caskets—an unlicensed casket seller does sells caskets that are neither unsafe nor predatory to consumers. The unlicensed caskets are only cheaper. Such an irrationally drawn law serves no legitimate governmental purpose and is unconstitutional.

[1] See, Reuters, U.S. Washer Tariffs Put Samsung, LG Supply Chains Through the Wringer, The New York Times (2018), (last visited Jan 30, 2018).

[2] Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 484, 75 S. Ct. 461, 463 (1955).

[3] Craigmiles v. Giles, 312 F.3d 220, 222 (6th Cir. 2002).

[4] St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013).

[5] E.g., Powers v. Harris, 379 F.3d 1208, 1211 (10th Cir. 2004).

[6] USCS Const. Art. I, § 8, Cl 3

[7] Powers at 1211.

[8] E.g., Powers at 1217.

[9] United States Dep’t of Agric. v. Moreno, 413 U.S. 528, 540, 93 S. Ct. 2821, 2829 (1973) (citing Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S. Ct. 1400 (1972)).

[10] N.Y.C. Transit Auth. v. Beazer, 440 U.S. 568, 606, 99 S. Ct. 1355, 1376 (1979).

[11] Id.

[12] Powers at 1227.

[13] Id. at 1212.

[14] Id.

[15] Id. at 1213.

[16] Declaratory Judgment: a judgment that merely decides the rights of parties in a given transaction, situation, or dispute but does not order any action or award damages. (, declaratory judgment, (last accessed February 12, 2018)).

[17] Powers at 1213.

[18] Id. at 1215.

[19] Id. at 1215, 1216.

[20] Id. at 1216.

[21] Id. at 1221

[22] See Powers at 1219.

[23] Id.

[24] Id at 1217 (citing Starlight Sugar, Inc. v. Soto, 253 F.3d 137 (1st Cir. 2001).

[25] Id. at 1221.

[26] Craigmiles v. Giles, 312 F.3d 220, 229 (6th Cir. 2002)

[27] Id. at 223.

[28] Id. at 224.

[29] See id. at 225.

[30] Id. at 226.

[31] Craigmiles at 229 (citing Peoples Rights Org. v. City of Columbus, 152 F.3d 522 (6th Cir. 1998)).

[32] Id.

[33] Id.

[34] Id.

[35] St. Joseph Abbey v. Castille, 712 F.3d 215, 227 (5th Cir. 2013).

[36] Abbey: the group of buildings comprising such a monastery or convent. (,, (last visited February 6, 2018).

[37] Castille at 217.

[38] Id. at 218.

[39] Id. at 223 and 226.

[40] Castille at 226.

[41] Id.

[42] Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 490.

[43] Id. at 486.

[44] See Castille at 223.

[45] See Powers at 1219 (citing court cases that examine legislation based on the Commerce Clause); See ARTICLE:THE ILLUSION OF LAW: THE LEGITIMATING SCHEMAS OF MODERN POLICY AND CORPORATE LAW, 103 Mich. L. Rev. 1, footnote 56 (referencing the Cato Institute).


Federal Proscription on State Prescriptions: A Sensible Approach to ERISA Preemption

David Wovrosh, Associate Member, University of Cincinnati Law Review

Over half of all Americans suffer from a chronic illness requiring prescription medication.[1] As a result, Americans spend more per capita on prescription medication than anywhere else in the world.[2]  Every year, Americans spend the equivalent of eighteen percent of the U.S. GDP on prescription medication.[3] Criticism of the exponential increases in the cost of necessary medication has been leveled at nearly all players in the medical industry.[4] Whether the federal government or the states are to shoulder the responsibility to act is an ongoing legal saga playing out among the circuit courts.

As of August 2017, thirty states have introduced over sixty drafts of legislation aimed at increasing the transparency of drug pricing.[5] In response, the Pharmaceutical Care Management Association (PCMA)[6] has challenged the states’ legal authority to do so. In a recent case, Pharmaceutical Care Management Association v. Gerhart,[7] the Eighth Circuit Court of Appeals found that the Employee Retirement Income Security Act of 1974[8] (ERISA) preempted states’ ability to legislate drug transparency and pricing.[9]

The ruling relies on an increasingly untenable framework for analyzing federal law preempting states from regulating employer benefits. It is time for the Supreme Court to acknowledge that the existing body of ERISA preemption legislation far exceeds its originally-intended scope and purpose.  To make the preemption doctrine more workable, the Supreme Court should create a two-tiered analysis based on pension and non-pension plans.

ERISA, Preemption, and Opaque Standards

ERISA was enacted to “safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits.”[10] The primary aim of ERISA is “to provide a single uniform national scheme for the administration of ERISA plans without interference from the laws of the several States.”[11] To achieve this, Congress included a preemption clause, known as 514(a), stating that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.”[12] The “opaque language”[13] of 514(a) has forced the Supreme Court to often and begrudgingly take up the question of what it means to “relate to” an employee benefit plan such that it is preempted.[14]

The Supreme Court has articulated a two-prong test to determine whether a state law “relates to” an employee benefit plan.[15] First, courts look to whether the statute in question “connects to” ERISA in a meaningful way.[16] Second, courts must look to whether the statute impermissibly “references” ERISA.[17] This lack of clarity in defining the scope of ERISA preemption has, as the Court noted, caused an “avalanche of litigation in the lower courts.”[18]

ERISA in its Proper Historical Context

ERISA was enacted in 1974 in reaction to chronic underfunding and mismanagement of private employee retirement accounts.[19] Congress sought to stabilize the pension system by requiring national uniformity, given the dearth of regulation surrounding private retirement accounts at the time.[20] This was to be accomplished by establishing fiduciary duties on retirement plans and by mandating reporting and compliance requirements for all employee benefit plans.[21] Foremost among the outcomes sought by imposing regulations was the ability of consumers to make a meaningful and informed choice about their options for retirement accounts and fairly assess the security of their existing retirement accounts.[22]

ERISA’s legislative history is surprisingly quiet on its application to non-pension plans, despite the “uncommonly thorough document[ation]” of Congress’ motivations for “comprehensively reform[ing] the private pension industry.”[23] Indeed, many of the ERISA provisions that enforce and regulate “substantive protections” of core ERISA benefits do not apply to non-pension benefits at all.[24] This conspicuous absence from an otherwise well-documented statute has led come commentators to posit that ERISA’s application to health plans is, at best, peripheral.[25] Some scholars have even questioned whether Congress intended for ERISA’s preemption clause to apply to state regulations of non-pension plans at all.[26] Nevertheless, preemption of non-pension plans remains one of the most litigated aspects of 514(a).[27]

The Lower Court Litigation Avalanche

At the heart of the misunderstanding of 514(a)’s preemptive scope has been diametrically opposed Supreme Court interpretations of 514(a). Courts have applied both a textualist approach and an approach giving greater deference to states.

The Supreme Court’s early decisions involved a very strict and literal interpretation of what it meant to “relate to” an ERISA plan.[28] This approach embodies an understanding of the preemption clause that resulted from a “plain language” reading of the text.[29] Shaw v. Delta Air Lines, Inc. became the litmus test for preemption, finding that ERISA’s broad text was an intentional design meant to have an aggressive and sweeping preemptory effect on state law.[30] In Shaw, the Supreme Court used a textual interpretation of ERISA’s preemption clause to find that a New York law prohibiting maternity discrimination in employer-sponsored disability insurance claims was preempted by ERISA. As a result of Shaw and its progeny, any state legislation having even a marginal impact on any employee benefit would result in near “automatic preemption.”[31]

This literalist approach was silently rejected over a decade later.[32] In New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. (Travelers),[33] the Supreme Court sought to depart from the textualist interpretation under Shaw. In Travelers, the Court found that the Shaw approach gave too little deference to traditional state’s rights.[34] The Court emphasized that they “have never assumed lightly that Congress has derogated state regulation.”[35] Instead, the Court must examine “pre-emption with the starting presumption that Congress does not intend to supplant state law.”[36]

The PCMA has subsequently sought to prohibit states from passing pharmaceutical transparency legislation, arguing that states are wading into territory preempted by ERISA. The result has been a number of divided circuits that are at loggerheads as to whether ERISA preempts state legislation mandating the disclosure of drug pricing.

In January 2017, the Eighth Circuit handed PCMA a victory in Pharmaceutical Care Management Association v. Gerhart.[37] The Eighth Circuit held that an Iowa law requiring prescription insurance companies to disclose drug pricing methodologies[38] was preempted by 514(a).[39] The court found that the Iowa statute’s reporting requirements impermissibly referenced ERISA plans[40] as well as an impermissible “connection to” ERISA.[41]

Both the D.C. Court of Appeals as well as the First Circuit Court of Appeals arrived at the opposite conclusion. In Pharmaceutical Care Management Association v. Rowe, the First Circuit found a Maine statute requiring disclosures of drug pricing outside 514(a)’s scope.[42] The First Circuit found that the Maine statute’s disclosure requirements had neither a “connection to”[43] nor an impermissible “reference to” ERISA.[44] Conversely, the D.C. Circuit Court of Appeals found partial preemption in Pharmaceutical Care Management Association v. District of Columbia.[45] The D.C. Circuit found that placing fiduciary duties on PBMs is too burdensome on plan administration and that ERISA therefore preempted that portion of the D.C. statute, while allowing other transparency portions of the statute to survive.[46]

Whither the Laboratories of Democracy?

Proponents of an expansive reading of 514(a) point to the ability of the preemption clause to enable national stability among the various employee benefit plans.[47] National uniformity in law, they argue, ensures that significant costs can be saved by avoiding duplicitous state regulatory schemes that are superimposed on top of national law.[48] This avoids the costly administration of state-imposed regulations which pass these costs on to the consumers.[49] While this may be true for employee pension plans, 514(a) has the unintended consequence of creating regulatory “vacuums” as a result of 514(a) preemption.[50] ERISA’s tangential reference to non-pension plans brings those plans within 514(a)’s orbit. The net effect is to ensure that only federal legislation can regulate those environments. From a federalist perspective, this has proven incredibly problematic.

One of the core functions incumbent on the states is the responsibility to manage and implement healthcare.[51] The sweeping interpretation of 514(a) has severely curtailed the ability of states to carry out this core function, thereby creating a “regulatory vacuum.”[52] ERISA itself provides little in the way of creating the kind of stability and regulatory oversight for non-pension plans that it affords to pension plans.[53] The result is a paradox: states are estopped from regulating in a field that is within their domain by a regulatory body that is relatively indifferent to consumer needs.

ERISA Preemption: A Sensible Solution

Short of repealing ERISA or legislative action, the kind of change required to recalibrate the scope of 514(a) must come from the Supreme Court itself. The Court should dissolve the twin-prong analysis as applied to non-pension employment benefits. In its stead, the Court should adopt a standard that would preempt non-pension plans only if they directly contradict ERISA directives.

The rationale for a bifurcated 514(a) analysis critically begins with the historical and statutory heft that is given to pension plans and the paucity of regulatory oversight afforded to non-pension plans. As the Court in Travelers directed, “[w]e simply must go beyond the unhelpful text and the frustrating difficulty of defining [514(a)]” and examine Congress’ intent.[54] By enacting ERISA, Congress first and foremost sought to stabilize an unfettered pension market that had been crumbling under mismanagement and uncertainty.[55] ERISA critically omits non-pension from core ERISA provisions.[56] A careful reading of the legislative history shows that “Congress . . . was not dealing with non-pension benefit plans when it enacted ERISA.”[57]

An inquisition into 514(a)’s scope should begin with the “starting presumption that Congress does not intend to supplant state law.”[58] The regulation of healthcare squarely falls within the ambit of state regulation.[59] The Court has been reluctant to supersede the traditional powers reserved to the state unless preemption “was the clear and manifest purpose of Congress.”[60] As the Court in Shaw correctly observes, 514(a)’s legislative history is replete with Congress’ manifest intent to occupy the field of pension benefits.[61] Non-pension benefits, however, were barely contemplated in 514(a)’s legislative history.[62] It is sufficient to say that 514(a)’s preemptive intent had little contemplation of non-pension benefits. It would seem anomalous that Congress had set out to reserve for itself a field traditionally within the states’ ambit when it had little intention of occupying that field in any meaningful manner.

Instead of supplanting an entire field reserved to the states, a more prudent approach would be to bifurcate the 514(a) analysis by according pension and non-pension plans their own respective preemption analysis. The two-prong “relation to” approach would apply to pension plans. Non-pension plans should receive a less exacting level of scrutiny, such as conflict preemption, in which 514(a) would only serve to preempt when the state statute directly conflicts with ERISA such that it is impossible to carry out the mandates of both statutes.[63]

Resolving the Drug Pricing Tension

Nowhere is the usefulness of this approach more evident than the litigation surrounding drug pricing transparency legislation. The D.C. Circuit, First Circuit, and the Eighth Circuit have all applied the same preemption test but come to contradicting conclusions. Both the First Circuit Court of Appeals and the D.C. Circuit Court of Appeals have found state drug pricing legislation permissible under ERISA[64], while the Eighth Circuit has found it to be preempted under 514(a).[65] The wave of pending state pricing transparency statutes[66] makes further litigation inevitable. Under current 514(a) analysis, courts would engage in a fact-intensive and speculative inquiry.[67]

Instead, using the test articulated above, the court need only look to see if the statute directly contradicts ERISA directives. The looming “avalanche of litigation”[68] prompted by the “unhelpful”[69] current 514(a) test would instead be a straightforward conflict-preemption analysis. The litany of drug pricing statutes would be permitted under 514(a) insofar as they do not directly stand in conflict with other ERISA provisions. Under this test, state drug pricing disclosure statutes would fall squarely within the realm of the states. A tiered 514(a) analysis achieves both the current level of scrutiny for pension plans (for which ERISA has far more substantive statutory application to) while giving states the leeway to fill the “regulatory vacuum”[70] that has plagued non-pension benefit plans since Shaw.


Far from an exercise in state-led federalist revanchism, allowing states the leeway to act as laboratories of democracy[71] can work to increase the efficacy of healthcare systems amongst the states by allowing states to develop unique solutions to burgeoning healthcare costs. Uncertainty as to the scope of 514(a) has allowed ERISA to subsume broad swaths of territory that traditionally fall within the states’ ambit. In so doing, ERISA has exceeded its original intent to the detriment of the federalist system. In response to the impending litigation around drug pricing transparency, the Supreme Court should use the underlying rationale in Travelers to bifurcate the 514(a) analysis to account for ERISA’s distinction between pension and non-pension plans. In so doing, the Court will be able to recalibrate the scope ERISA to strike an appropriate balance between federalism and ERISA’s goal of national uniformity in employee pension benefits.

[1] Norman R. Augustine et al., Nat’l Acad. of Sci., Eng’g, & Med., Making Medicines Affordable: A National Imperative 5 (2017).

[2] Id.

[3] Id.

[4] Id. at 6-7.

[5] Trevor Flynn & Jerin Philip, Lowering Drug Costs: Transparency Legislation Sets Off Flurry of New State Approaches, Nat’l Acad. State Health Pol’y (Aug. 22, 2017),

[6] The PCMA is the national organization that represents pharmacy benefit managers. See About, Pharmaceutical Care MGMT. Ass’n,

[7] 852 F.3d. 722 (8th Cir. 2017).

[8] 29 U.S.C.A § 1001 et seq.

[9] Gerhart, 852 F.3d. at 731.

[10] Massachusetts v. Morash, 490 U.S. 107, 112 (1989).

[11] Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 947 (2016).

[12] 29 U.S.C.A. 29 § 1144(a).

[13] De Buono v. NYSA-ILA Med. and Clinical Services Fund, 520 U.S. 806, 809 (1997).

[14] Id. at 808 n.1. The Court in De Buono commented in dismay on the number of ERISA preemption cases on its docket during that term, as well as the sheer number of Supreme Court cases that had already been brought to the Court.

[15] See generally Egelhoff v. Egelhoff, 532 U.S. 141, 146-49 (2001).

[16] Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 (1983).

[17] New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995).

[18] De Buono, 520 U.S. at 808 n1.

[19] See Dahlia Schwartz, Breathing Lessons for the ERISA Vacuum: Toward A Reconciliation of ERISA’s Competing Objectives in the Health Benefits Arena, 79 B.U. L. Rev. 631, 636 (1999).

[20] See Donald T. Bogan, Protecting Patient Rights Despite ERISA: Will the Supreme Court Allow States to Regulate Managed Care?, 74 Tul. L. Rev. 951, 964-972 (2000).

[21] Id.

[22] Id. at 967.

[23] See Id. at 964; Mallory Jensen, Is ERISA Preemption Superfluous in the New Age of Health Care Reform?, 2011 Colum. Bus. L. Rev. 464, 473 (2011).

[24] See Bogan, supra note 20, at 974-75. Such protections that do not apply to healthcare plans regulations protecting against plan insolvency. Healthcare funding mandates are not covered. ERISA does not include healthcare plans in its regulations and requirements for vesting and distribution of benefits and termination of benefits.

[25] See Jensen, supra note 23 at 474-75.

[26] Dahlia Schwartz, Breathing Lessons for the ERISA Vacuum: Toward A Reconciliation of ERISA’s Competing Objectives in the Health Benefits Arena, 79 B.U. L. Rev. 631, 638 (1999).

[27] Id. at 638-39.

[28] See generally Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983).

[29] Id. at 97.

[30] 463 U.S. 85.

[31] Edward A. Zelinsky, Travelers, Reasoned Textualism, and the New Jurisprudence of ERISA Preemption, 21 Cardozo L. Rev. 807, 816 (1999).

[32] See generally Edward A. Zelinsky, ERISA Preemption After Gobeille v. Liberty Mutual: Completing the Retrenchment of Shaw, 34 Hofstra Lab. & Emp. L.J. 301, 306-11 (2017).

[33] 514 U.S. 645, 650 (1995).

[34] Id. at 654.

[35] Id.

[36] Id.

[37] 852 F.3d. 722 (8th Cir. 2017).

[38] I.C.A. § 510B.8.

[39] Gerhart, 852 F.3d. at 731.

[40] Id. at 729.

[41] Id. at 731.

[42] Pharm. Care Mgt. Ass’n v. Rowe, 429 F.3d 294, 298 (1st Cir. 2005).

[43] Id. at 303.

[44] Id. at 304.

[45] 613 F.3d 179 (D.C. Cir. 2010).

[46] Id. at 185-87.

[47] See Jenson, supra note 23, at 476.

[48] See Patricia M. Danzon PhD et al., Dept. of Labor, PBM Compensation and Fee Disclosure 13-14 (2014).

[49] Federal Circuit Court Strikes Down Iowa Mandate Restricting PBM Tools, PCMA, (last visited Feb. 2 2018); see generally Health Policy Issue Brief: Successful Employer-Provided Health Plans Depend On Nationally Uniform Standards, The ERISA Industry Committee (2007).

[50] See generally Schwartz, supra note 26.

[51] New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co,514 U.S. 645, 655 (1995).

[52] See Jensen, supra note 23 at 475 n.42; see generally Andrew L. Oringer, A Regulatory Vacuum Leaves Gaping Wounds-Can Common Sense Offer A Better Way to Address the Pain of ERISA Preemption?, 26 Hofstra Lab. & Emp. L.J. 409, 412 (2009).

[53] See Bogan, supra note 20, at 974-75.

[54] Id. at 656.

[55] See Bogan, supra note 20 at 965-67.

[56] See ERISA and its Proper Historical Context, supra and accompanying text.

[57] Bogan, supra note 20. at 977.

[58] Travelers, 514 U.S. at 654.

[59] Id. at 655.

[60] Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

[61] Shaw, 463 U.S. at 98-99.

[62] See Bogan, supra note 20, at 980-83.

[63] See generally Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000) (describing the mechanics of conflict preemption).

[64] See Pharm. Care Mgt. Ass’n v. Rowe, 429 F.3d 294 (1st Cir. 2005); Pharmaceutical Care Management Association v. District of Columbia, [64] 613 F.3d 179 (D.C. Cir. 2010).

[65] See Pharmaceutical Care Management Association v. Gerhart, 852 F.3d. 722 (8th Cir. 2017).

[66] See Flynn & Philip, supra note 5.

[67] While both the Maine and D.C. statutes required drug pricing disclosure, the D.C. circuit’s reticence to uphold the law in full stems from the D.C. statute’s imposition of fiduciary duties on prescription insurance plans. PCMA v. District of Columbia, 613 F.3d at 185-87. Because the plans became statutory fiduciaries, the D.C. Circuit found the fiduciary duties to be too onerous for insurance plans to administer alongside ERISA’s reporting requirements and the statute was thus preempted. Id. The First Cicruit in Rowe, in contrast, found the pricing disclosure requirements, without more, to be “purely ministerial.” 429 F.3d at 301. As such, reporting requirements failed to rise to the kind of burden preempted by ERISA. Id. In both cases, the courts were required to engage in a fact-intensive analysis of the legislation to anticipate what kind of effect it could have on ERISA plans.

[68] De Buono v. NYSA-ILA Med. and Clinical Services Fund, 520 U.S. 806, 808 n.1 (1997).

[69] New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 646 (1995).

[70] See generally Oringer, supra note 52.

[71] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).


FACT Act and Freedom

Maria Castro, Associate Member, University of Cincinnati Law Review

The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT) requires licensed pregnancy care clinics to post notices that state the existence of publicly funded family-planning services, such as contraception and abortion.[1]  In addition, the Act requires unlicensed pregnancy care clinics to post notices stating that they are not licensed by the State of California and do not have a licensed medical provider on staff or under contract to directly supervise the services.[2]  Several anti-abortion pregnancy centers filed for a preliminary injunction against the state to prevent enforcement of the Act and alleged the notice requirements violated their First Amendment rights to free speech and free exercise of religion.[3]  The District Court for the Southern District of California denied the motion and the Ninth Circuit affirmed.[4]  In November 2017, the Supreme Court granted certiorari, but limited the question to whether the FACT Act violates the Free Speech Clause of the First Amendment.[5]

Both licensed and unlicensed pregnancy related clinics offer ultrasounds, prenatal care, pregnancy testing and diagnosis, and counseling.[6]  The Act requires all licensed pregnancy-related clinics unable to enroll patients in state-sponsored programs to disseminate a notice that states California has public programs that provide free or low-cost access to comprehensive family planning service, prenatal care, and abortion for eligible women.  State-sponsored programs refer to Medi-Cal and California’s Family PACT Program.[7]  Pro-life clinics are unable to enroll patients in the Family PACT program because the program requires pregnancy care clinics to provide abortifacients and birth control.[8]  Therefore, the notice-requirement predominately affects pro-life pregnancy care clinics, since pro-life pregnancy care clinics cannot enroll in the Family PACT program.  Accordingly, this notice requirement does not apply to pregnancy care clinics that offer abortifacients and birth control, since they are able to enroll in the Family PACT program.

Plaintiff claims that this regulation is a regulation on speech and the Court should apply strict scrutiny when determining whether the requirement is unconstitutional.  Plaintiff argues the Court should ultimately find that the regulation fails strict scrutiny and therefore violates the Free Speech Clause.  Defendant argues the Court should find this requirement is a regulation of professional speech and therefore should apply intermediate scrutiny.  Additionally, Defendant believes the Court should hold the regulation does not violate the Free Speech Clause.  The Supreme Court should apply strict scrutiny review of the FACT Act licensed notice requirement because it is compelled speech and content-based speech.  However, the Court should follow similar precedent and uphold the regulation as a permissible speech regulation under strict scrutiny because it is narrowly tailored to the state’s compelling government interest.

Relevant Law

When determining whether a government regulation violates the Free Speech Clause, the Court applies one of three possible levels of review: (1) rational basis, (2) intermediate scrutiny, or (3) strict scrutiny.  The type of review depends on the type of regulation.  A neutral law that is generally applied is subject to rational basis review, the lowest level of scrutiny.  Under rational basis, a government regulation is valid if it is rationally related to a legitimate state interest.[9]  Intermediate scrutiny applies to speech regulations that are content neutral.[10]  Under intermediate scrutiny, a regulation passes if it (1) advances important/significant/substantial government ends; (2) is substantially related to advancing those ends; and (3) is not substantially more burdensome than necessary to advance those ends.[11]  Strict scrutiny applies to speech regulations that are content-based.[12]  Strict scrutiny is also used to review regulations that discriminate based on viewpoint.[13]  Under strict scrutiny, a regulation passes if it (1) advances a compelling or overriding government ends; (2) is directly or substantially related to advancing those ends; and (3) is the least restrictive, effective means to advance those ends.[14]

Pro-Life Pregnancy-Related Centers’ Argument

Plaintiffs argue the Supreme Court should apply strict scrutiny review when deciding whether the FACT Act violates the Free Speech Clause and ultimately hold the FACT Act does not survive strict scrutiny and is therefore an unconstitutional violation of the Free Speech Clause.[15]  Plaintiffs base this argument on the claims that the Act (1) compels speech, (2) is content based, and (3) is viewpoint discriminatory.[16]  It is undisputed that the Act compels speech.  Historically, compelled speech is subject to strict scrutiny.[17]  The Ninth Circuit applied a “professional speech” exception to compelled speech; however, petitioners argue that the Supreme Court has never found this category to be an exception.[18]  In addition, the pro-life centers believe that the Act is content-based since it prescribes the words the Plaintiffs must say.[19] Finally, Plaintiffs claim that the Act is viewpoint discriminatory because it “targets speakers with a particular viewpoint and forces them to advance the State’s viewpoint-biased message.”[20]

Plaintiffs argue the Act’s “Compelled Abortion Referral” does not survive strict scrutiny because the state’s interest in “providing women with information regarding healthcare” is not a compelling interest.[21]  In addition, Plaintiffs do not believe the Act is narrowly tailored since it has several limitations and exceptions, which “effectively compels only pro-life pregnancy centers to convey the State’s supposedly all-important message.”[22]  The regulation allows for an exception for pregnancy care centers that are enrolled in the Family PACT program.  Effectively, this provides an exception for pregnancy care clinics that provide abortifacients and birth control, which does not include pro-life centers.  Finally, the pro-life pregnancy centers argue the Act imposes burdensome requirements on the centers that are excessive to the State’s interest, such as having to print out notices and post them in the waiting room.[23]

California’s Argument

Defendant argues Plaintiffs cannot prevail on their free speech claim because the Act regulates conduct, not speech, but to the extent that it regulates speech, it is a permissible regulation of speech.[24]  Defendant bases this argument on three claims: (1) the notice requirement regulates professional conduct and survives under rational basis review; (2) the notice requirement regulates professional speech and survives under intermediate scrutiny review; and (3) the notice requirement regulates commercial speech and survives under rational basis review.[25]  Defendant claims a regulation on licensed facilities concerns professional conduct, not speech.[26]  Professional conduct includes regulations on forms of treatment.  Defendant also argues if the Act does regulate speech, it regulates professional speech, which the Ninth Circuit held to be an exception to the strict scrutiny review requirement of compelled speech, and requires a diminished form of review.[27]  Finally, Defendant claims the regulations on licensed-facilities are a permissible regulation of commercial speech.[28]

Defendant asserts the State may exercise its police power by regulating medical professions.[29]  Defendant further claims the First Amendment “allows leeway to regulate professionals to protect the health and general welfare of its citizens even where the state’s regulation has an incidental effect on protected speech.”[30]  Defendant argues the Court should apply intermediate scrutiny to the state’s regulation of professional speech and that it ultimately prevails under such review.[31]  Defendant claims the purpose of the Act is to “ensure California women know their reproductive rights, and the healthcare resources available to them, when they make their personal reproductive healthcare decisions” and this purpose is a both a substantial and compelling interest.[32]  According to the Defendant, the Act is drawn to achieve this interest because it is “carefully drawn and directly advances California’s interest in informing women of the availability of free or low cost health care resources and the manner in which they may access those resources.”[33]

The Court Should Apply Strict Scrutiny

There are two types of compelled speech cases typically heard in the abortion context.  The first category includes speech regulations that require physicians to disclose the risks and side effects associated with abortion, along with regulations that require physicians to describe the developmental details of the fetus, including showing the sonogram to the woman.[34]  Typically, courts uphold this type of speech regulation as “reasonable regulations of licensed professional conduct.”[35]  Second, there are speech regulations such as the one in the National Institute of Family and Life Advocates, which require pro-life pregnancy-related centers to disclose the availability of other pregnancy resources, such as abortion and contraception, and to disclose when they are not a medically licensed facility.[36]  Typically, courts have struck down this type of regulation as “ideologically compelled speech.”[37] Among the latter type of speech, circuits are split on the applicable level of scrutiny.[38]  The Eighth and Fifth Circuits have applied a reasonable basis standard, striking down regulations similar to the FACT Act.[39]  The Ninth Circuit applied intermediate scrutiny when it upheld the FACT Act.  To resolve legislative confusion, the Supreme Court should adopt a uniform standard that applies to all forms of compelled professional speech, regardless of whether the compelled professional speech is in the context of abortion.

The Ninth Circuit did not identify any Supreme Court precedent related to compelled professional speech and instead applied its own precedent.[40]  The Ninth Circuit “recognized a ‘continuum’ of First Amendment protection in professional settings, with professional conduct on one end, protected individual speech on the other, and professional speech somewhere in the middle.”[41]  The Ninth Circuit based this decision on its precedent from Pickup.[42]  Accordingly, the Ninth Circuit applies different standards of review depending on where the speech falls on the continuum.

However, there is no need for a “professional speech” exemption from the strict scrutiny review of compelled speech.  Instead, whether the speech falls under the category of “licensed professional” is relevant when determining whether the regulation passes strict scrutiny.  Under strict scrutiny review, the state may have a compelling government interest in regulating licensed professionals.  For example, the state has a compelling interest in ensuring that medical professionals receive informed consent from their patients, and accordingly can compel doctors to make certain statements that are “truthful and not misleading.”[43]  Therefore, it is possible for regulations on licensed professionals to survive strict scrutiny, as long as they are narrowly tailored to a compelling government interest.

The Ninth Circuit found the license notice requirement was content-based, but that it did not trigger strict scrutiny review because it did not discriminate based on viewpoint.[44] However, “a speech regulation targeted at specific subject matter is content based, and thus subject to strict scrutiny, even if it does not discriminate among viewpoints within the subject matter.”[45]  The license notice requirement is content-based because it regulates the content of what the pregnancy-related clinics must say.  Therefore, strict scrutiny should be applied.

When determining whether the FACT Act passes strict scrutiny, it is necessary to consider the state’s purpose in passing the Act, along with whether there are other, less restrictive ways to achieve the state’s purpose. The state’s purpose is to ensure California residents know their rights and options before making healthcare decisions.[46]  There are many methods that a state could use to educate and inform its residents without compelling private healthcare facilities to advertise public healthcare resources.  For example, the state could advertise its own resources through television, radio, billboards, and other media.

However, the legislature found that the ability of women to receive accurate information about their reproductive rights was being hindered by crisis pregnancy centers, such as the Plaintiffs in National Institute of Family and Life Advocates.[47]  The legislature found that crisis pregnancy centers utilize “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.”[48]  If a woman enters a crisis pregnancy center and mistakenly believes that it will inform her of all her options, then she may rely on its advice without seeking additional opinions.  Pregnancy decisions are time sensitive, which means that it is necessary for women to receive access to information and care early on in their pregnancy.  Accordingly, if the state has found that crisis pregnancy centers use intentionally deceptive advertising practices that mislead women, then it has a compelling interest in regulating these medical practices.

Requiring facilities to simply post a notice that the state offers additional resources will quickly and easily allow a patient to identify additional information about their healthcare options.  Posting a simple sign in the waiting room is not an overly burdensome requirement.  Medical facilities are often required to post certain notices to their patients; this notice would not require any overly burdensome effort on the part of the medical facility.  This regulation is the least restrictive option, which is narrowly tailored to the government’s compelling interest.  As a result, it passes strict scrutiny.


The FACT Act license notice requirement is constitutional.  The regulation survives under strict scrutiny.  California’s compelling interest is to “ensure that women have access to information regarding state-sponsored reproductive care and counseling in a timely manner.”[49]  The license notice requirement is narrowly tailored because pregnancy decisions are “uniquely time-sensitive” and therefore pregnancy-related relevant information must be disseminated as soon as possible to pregnant women in order to further the government’s purpose.[50]

[1] Natl. Institute of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016) (a licensed pregnancy care clinic is a clinic that is licensed by the State of California and has the primary purpose of providing family planning or pregnancy care services).

[2] Id.

[3] Id.

[4] Id.

[5] Natl. Institute of Family & Life Advocates v. Becerra, 138 S.Ct. 464 (2017).

[6] Id.

[7] National Institute of Family and Life Advocates v. Becerra, 2018 WL 347510 (U.S.), 10 (U.S., 2018).

[8] Id.

[9] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 840 (1992).

[10] Kelso, The Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Rev., & “Reasonableness” Balancing, 8 Elon L. Rev. 291, 293 (2016).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 294.

[15] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 17.

[16] Id. at 17-18.

[17] Id. at 17.

[18] Id.

[19] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 18.

[20] Id.

[21] National Institute of Family and Life Advocates, 2018 WL 347510 (U.S.) at 18-19.

[22] Id.

[23] Id.

[24] National Institute of Family and Life Advocates, et al., Plaintiffs and Appellants, v. Kamala Harris, Attorney General of the State of California, in her Official Capacity, et al., Defendants and Appellees., 2016 WL 1619316 (C.A.9), 21 Defendant has not yet submitted a reply brief to the United States Supreme Court at the time of this writing).

[25] Id. at 21-25; 33.

[26] Id. at 19.

[27] Id.

[28] Id.

[29] National Institute of Family and Life Advocates, 2016 WL 1619316 (C.A.9) at 25 (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 881-84 (1992).

[30] Id. at 22.

[31] Id. at 29.

[32] Id.

[33] National Institute of Family and Life Advocates, 2016 WL 1619316 (C.A.9) at 29.

[34] Roy, Constitutional Law-Ninth Circuit Applies Intermediate Scrutiny to Mandated Abortion Clinic Notices-Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016), Cert. Granted in Part Sub Nom. Nat’l Inst, 50 Suffolk U.L. Rev. 771, 776 (2017).

[35] Id.

[36] Id.

[37] Id.

[38] Roy, at 776-777.

[39] Id. at 777.

[40] Id. at 778.

[41] Id.

[42] Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013) (The Ninth Circuit reviewed a California law banning mental health therapists from conducting any practice that sought to change a minor’s sexual orientation.  The Court found that the level of protection to apply to profession speech or conduct was best understood along a continuum, with “public dialogue” on one end and “professional conduct” on the other.  Public dialogue is afforded the highest level of protection and professional conduct is afforded the least amount of protection).

[43] Haupt, Professional Speech, 125 Yale L.J. 1238, 1259 (2016).

[44] Natl. Institute of Family & Life Advocates, 839 F.3d at 834.

[45] Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230, 192 L.Ed.2d 236 (2015).

[46] Natl. Institute of Family & Life Advocates, 839 F.3d at 829.

[47] Id.

[48] Id.

[49] Roy, supra, at 779.

[50] Id.

Is a Wedding Cake a Form of Speech?

Amona Al-Refaei, Associate Member, University of Cincinnati Law Review

On Dec. 5, 2017, the Supreme Court heard arguments about whether compelling a bakery owner to create a wedding cake created an expression that violated his freedom of speech or free exercise clauses of the First Amendment.[1] In 2015, the Court of Appeals of Colorado unanimously affirmed the Colorado Civil Rights Commission decision to rule against Masterpiece on summary judgment, finding the bakery discriminated against a same-sex couple because of sexual orientation in violation of state law.[2] The court also found the application of Colorado Anti-Discrimination Act (CADA) did not infringe on the bakery’s freedom of speech or free exercise of religion.[3]

In its decision on the issue, the Supreme Court should find CADA does not infringe on the freedom of speech or the free exercise of religion and the state has a legitimate interest in eliminating discrimination in places of public accommodation. The Colorado public accommodations law can regulate communicative conduct because the government has an important interest that is unrelated to the suppression of the message and the impact on the communication is no more than necessary to achieve the government’s purpose. The law does not infringe on the free exercise of religion because it is generally applicable, does not discriminate on the basis of religion, and covers a broad spectrum of conduct.

First Amendment Rights

The First Amendment prohibits laws “abridging the freedom of speech.”[4] The freedom of speech protected by the First Amendment includes the “right to refrain from speaking” and prohibits the government from telling people what they must say.[5] The government cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” by forcing individuals to publicly disseminate its own ideological message.[6]  The government also cannot require “the dissemination of an ideological message by displaying it on [an individual’s] private property in a manner and for the express purpose that it be observed and read by the public.”[7]

Some forms of conduct are symbolic speech and deserve First Amendment protection.[8] First Amendment protection only extends to conduct that is “inherently expressive.”[9] In determining whether conduct is “inherently expressive,” courts must determine whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”[10] The Supreme Court has recognized expressive conduct in several cases.[11] The party asserting  conduct is expressive bears the burden of demonstrating the First Amendment applies, and the party must advance more than a mere “plausible contention” that its conduct is expressive.[12]

The First Amendment also states “Congress shall make no law . . . prohibiting the free exercise of religion.”[13] The Supreme Court concluded the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law prescribes (or proscribes) conduct that his religion prescribes (or proscribes).”[14] Neutral laws of general applicability need only be rationally related to a legitimate government interest in order to survive a constitutional challenge.[15] But, if the law is not neutral or generally applicable, it “must be justified by a compelling government interest” and must be narrowly tailored to advance that interest.[16] A law is not neutral if the object of a law is to infringe upon or restrict practices because of their religious motivation.[17] A law is also not generally applicable when it imposes burdens on religiously motivated conduct while permitting exceptions for secular conduct or favored religions.[18]

Facts of Mullins v. Masterpiece Cakeshop

David Mullins and Charlie Craig visited Masterpiece Cakeshop in 2012 to order a cake to celebrate their same-sex wedding.[19] The bakery owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He informed them he would be happy to make and sell them any other baked goods. Mullins and Craig left without discussing any details of their wedding cake with the bakery owner.[20] The owner believed that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.[21] At the time, Colorado did not recognize same-sex marriages, so Mullins and Craig planned to marry in Massachusetts and then celebrate with friends in Colorado.[22]

After being denied service, Mullins and Craig filed complaints with the Colorado Civil Rights Division contending the Masterpiece Cakeshop violated the Colorado Anti-Discrimination Act (CADA) by discriminating against them in a place of public accommodation because of their sexual orientation.[23] A “place of public accommodation” is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.”[24] Masterpiece admitted the bakery is a place of public accommodation and that they refused to sell Mullins and Craig a cake because of their intent to engage in a same-sex marriage ceremony. The Colorado Civil Rights Commission determined the bakery illegally discriminated against Mullins and Craig when it refused them service and required Masterpiece to take remedial measures and file quarterly compliance reports for two years with the Division.[25]

Colorado Anti-Discrimination Act

The Colorado Anti-Discrimination Act (CADA) prohibits public accommodations from refusing service based on characteristics like race, religion, or sexual orientation. CADA states, “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .”[26]

CADA defines “sexual orientation” as “an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof.”[27] The Court of Appeals of Colorado previously held to prevail on a discrimination claim under CADA, plaintiffs must prove that, “but for” their membership in an enumerated class, they would not have been denied the full privileges of a place of public accommodation.[28] It is sufficient that plaintiffs show the discriminatory action was based in whole or in part on their membership in the protected class.[29]

State Court Holding in Mullins

The Court of Appeals of Colorado in Mullins v. Masterpiece Cakeshop held Masterpiece Cakeshop was properly found to have violated CADA when it refused to make a wedding cake for a same-sex wedding.[30] The order did not violate the First Amendment right to free exercise of religion. [31]As a result of the close correlation between the act of same-sex marriage and the couples’ orientation, the refusal was because of the potential customers’ sexual orientation.[32] CADA does not impede the free exercise of religions because it is both neutral and generally applicable.[33] The law does not compel the maker to support or endorse any particular religious views.[34] CADA only prohibits the maker from discriminating against potential customers on account of their sexual orientation.[35]

The court also held the cease and desist order did not compel speech in violation of the First Amendment because compelling the bakery to sell wedding cakes to same-sex couples, if it wished to serve heterosexual couples in the same manner, was not sufficiently expressive.[36] In order for conduct to be sufficiently expressive, the conduct must convey a particularized message and that a reasonable observer would both understand the message and attribute it to the speaker.[37] Designing and selling a wedding cake to all customers free of discrimination is not sufficiently expressive because it does not convey a celebratory message about same-sex weddings likely to be understood by those who view it.[38] The court noted there was nothing in the record to support the conclusion that a reasonable observer would interpret the maker’s providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage, rather than a reflection of its desire to conduct business in compliance with Colorado’s public accommodations law.[39]

CADA Does Not Violate First Amendment Rights

The Colorado Anti-Discrimination Act does not violate the bakery owner’s freedom of speech because the government has an interest unrelated to the suppression of the message and the impact on the communication is no more than necessary to achieve the government’s purpose. If the Court determines the Commission’s order did compel expressive conduct, the question to determine whether the freedom of speech was infringed is whether the government has sufficient justification for regulating the conduct. However, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose.[40] In Masterpiece, the government’s interest is in eliminating discrimination in places of public accommodation. The bakery’s willingness to serve same-sex couples items other than wedding cakes does not satisfy the state’s interest because the purpose of the law is to ensure that all customers are treated equally. So if the bakery is willing to create wedding cakes for some customers, it must do so for all customers regardless of sexual orientation.

Moreover, even if the Court upholds CADA, Masterpiece Cakeshop can express its views on same-sex marriage and it may disassociate itself from its customer’s viewpoints. As the Court of Appeals of Colorado noted, CADA does not prevent Masterpiece from posting a disclaimer in the store or on its website indicating that the provision of its service does not constitute an endorsement or approval of conduct protected by CADA.[41] The bakery may argue that the statute compels it to participate in a ceremony that it feels is immoral. But, CADA requires the bakery to provide the same services for all customers and Masterpiece could post a message indicating that CADA requires it not to discriminate on the basis of sexual orientation and other protected characteristics.[42] Such a message would likely have the effect of disassociating Masterpiece from its customers’ conduct.

Creating a wedding cake is not expressive conduct by Masterpiece because it is not likely that viewers of the wedding cake will interpret the cake as an endorsement of the same-sex marriage. Moreover, even if there was expressive conduct here, a reasonable person would not consider baking a cake to be a religious act because the viewer is more likely to attribute the message to the customer rather than to Masterpiece. Additionally, because Masterpiece is a for-profit bakery, reduces the likelihood that a reasonable observer would believe the bakery supports the message expressed in its finished product.

CADA does not infringe upon the free exercise of religion because it is neutral and generally applicable. CADA is generally applicable and does not discriminate based on religion, but it exempts certain public accommodations that are principally used for religious purposes, such as churches, synagogues, and mosques. And CADA does not exempt secular conduct from its reach. CADA is neutral because it forbids all discrimination based on sexual orientation regardless of its motivation. CADA prohibits Masterpiece from denying services to customers based on their sexual orientation if it would offer the same services to the general public. Moreover, CADA does not infringe upon or restrict practices because of their religious motivation. And CADA generally applies because it does not impose burdens on religiously motivated conduct while permitting exceptions for secular conduct or favored religions. When a business is a place of public accommodation the government has an interest in preventing discrimination which allows the government to compel business owners to provide the same services to all customers even if it may go against their religious beliefs.


The Court of Appeals of Colorado in Mullins was correct in holding that preparing a wedding cake for same-sex weddings does not necessarily involve expressive conduct. Designing and selling a wedding cake to all customers will not result in others understanding that the creator of the cake endorses or supports same-sex weddings.

CADA requires Masterpiece not to discriminate against potential customers and even if such conduct is compelled by the government, it is not sufficiently expressive to warrant First Amendment protections.  The Supreme Court should reach the same result because CADA does not impede the free exercise of religions since it is both neutral and generally applicable. As long as CADA can pass a rational basis standard of review, it should be upheld. The state has an interest in eliminating discrimination in places of public accommodation. Without, CADA, businesses could discriminate against potential customers based certain characteristics, including their sexual orientation.

[1] Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, (last visited Feb. 4, 2018).

[2] Mullins v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (Colo. App. 2015).

[3] Id.

[4] USCS Const. Amend. 1

[5] Wooley v. Maynard, 430 U.S. 705, 714 (1977).

[6] West Viriginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

[7] Wooley, 430 U.S. at 713.

[8] United States v. O’Brien, 391 U.S. 367, 376 (1968) (holding that the public burning of draft cards during anti-war protest is a form of expressive conduct).

[9] Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65-66 (2006).

[10] Texas v. Johnson, 491 U.S. 397, 404 (1989).

[11] United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies).

[12] Clark v. Cmty. Of Creative Non-violence, 468 U.S. 288, 293 (1984).

[13] USCS Const. Amend. 1

[14] Employment Div. v. Smith, 494 U.S. 872, 879 (1990).

[15] Id.

[16] Id. at 883.

[17] Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).

[18] Id. at 534.

[19] Mullins, 370 P.3d at 276.

[20] Id.

[21] Id. at 277.

[22] Id.

[23] Id.

[24] Colo. Rev. Stat. § 24-34-601(1), C.R.S. 2014.

[25] Mullins, 370 P.3d at 277.

[26]  Colo. Rev. Stat. § 24-34-601(2)(a), C.R.S. 2014.

[27] Colo. Rev. Stat. § 24-34-301(7), C.R.S. 2014.

[28] Tesmer v. Colorado High School Activities Assoc., 140 P.3d 249, 254 (Colo. App. 2006).

[29] Id.

[30] Mullins, 370 P.3d at 276.

[31] Id. at 293.

[32] Id. at 281.

[33] Id. at 293.

[34] Id. at 291.

[35] Id. at 286.

[36] Id. at 285.

[37] Id. at 286.

[38] Id. at 286.

[39] Id. at 287.

[40] Johnson, 491 U.S. at 407.

[41] Mullins, 370 P.3d at 288

[42] Id.

“The Right of the People to Feel Secure,” Unless They Are Immigrants

Natalia Trotter, Associate Member, University of Cincinnati Law Review


As the current administration sanctions aggressive actions taken by Immigration and Customs Enforcement (ICE) while searching for immigrants unlawfully present in the U.S., it is clear that Fourth Amendment rights have little meaning in the immigration context. With increasing stories about ICE agents using force or coercive tactics to enter the homes of immigrants to execute arrests without warrants, the need for constitutional protections for non-citizens grows.[1] For many years, the Plenary Power Doctrine has insulated the immigration system and actions by the government from constitutional scrutiny.[2] However, as immigration and criminal law increasingly meld and the abuse of immigrants by the Executive Branch expands, lower courts, as well as the Supreme Court, should find that the Fourth Amendment protections against unreasonable searches and seizures apply within the immigration context.[3] The government should no longer be permitted to violate the rights of immigrants under the cover of the Plenary Power Doctrine.

The Historical Force of the Plenary Power Doctrine

For more than a century, a baffling structure has emerged, where the actions of the government within the immigration system are protected almost entirely from constitutional scrutiny. The Plenary Power Doctrine sanctions the operation of the government outside the bounds of the Cnstitution, within the immigration context. The Doctrine “holds that the political branches – the legislative and the executive – have sole power to regulate all aspects of immigration as a basic attribute of sovereignty.”[4] The Doctrine first emerged in Chae Chan Ping, where the Supreme Court provided Congress with tremendous power to legislate in the immigration context because of the government’s interest in national security.[5] Although Chae Chang Ping has since been recognized as a highly discriminatory decision, the Plenary Power Doctrine remains. In many regards, “immigration policy is not held to the same constitutional standards as domestic law and indeed at times escapes constitutional review entirely” due to the power of the Doctrine.[6] The discrepancies in the application of constitutional principles in the immigration and non-immigration contexts are readily apparent, especially in the Fourth Amendment context.

Individual Rights Under the Fourth Amendment

The purpose of the Fourth Amendment is to protect people from abuse by law enforcement. While the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,”[7] one of the strong protections interpreted from the Amendment is the right of persons to feel secure in their homes. In Payton v. New York, the Court stated: “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”[8] While the Court provided for some exceptions to the warrant requirement, such as exigent circumstances and hot pursuit, it reiterated that absent an exception, a warrantless entry into the home would amount to a clear constitutional violation.[9] According to the language of the Fourth Amendment, a valid warrant requires probable cause, particularity, and support by an oath or affirmation.[10] The Court also stipulated that a “neutral and detached magistrate” must provide the warrant “instead of being judged by the officer.”[11] Absent a warrant, the Court provided a consent exception, allowing a person to agree to a search by a law enforcement officer. The Court held that consent must be “voluntarily given, and not the result of duress or coercion, express or implied.”[12] In addition, to avoid abuse after an arrest, the Court in Gernstein v. Pugh found that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty.”[13] The Fourth Amendment thus requires law enforcement to provide a neutral and detached magistrate with particular evidence of probable cause and swear an oath affirming that the information is true in order to receive a search or arrest warrant.[14] The officer must execute the arrest warrant outside of the home or within the home only after voluntary consent is given to enter.[15] If law enforcement seeks to detain the person for more than forty-eight hours, a judge must determine whether there is probable cause to extend the restraint of liberty.[16] The rights provided under the Fourth Amendment serve to protect individuals within the U.S. from the invasion of their homes and the violation of their privacy.

Should the Fourth Amendment Apply in the Immigration Context?

Although the Court had, for over a century, consistently sustained the Plenary Power Doctrine in the immigration context, judicial decisions in the twenty-first century have emerged that challenge the longstanding view that immigration policies are entirely insulated from constitutional scrutiny.[17] With the decision of Zadvydas v. Davis in 2001, the Supreme Court opened up the possibility of a constitutional challenge to the immigration practices of the Executive and Legislative Branches.[18] In an unprecedented decision, the Court stated: “we believe that an alien’s liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, the Constitution permits detention that is indefinite and potentially permanent.”[19] Although the Court in Zavydas focused on the constitutional issue of indefinite detention of immigrants without bond hearings, the decision created a possibility for immigrants to raise constitutional claims for the violation of their liberty interests.[20] In addition, the Court also restricted the unfettered use by the Government of the Plenary Power Doctrine by stating: “that power is subject to constitutional limits.”[21] In its decision, the Court signaled a movement towards increased judicial discretion to control the previously unencumbered use of the Plenary Power Doctrine by the Executive and Legislative Branches.

With the decision by the Court in Zavydas, immigrants now have the possibility of pursuing a claim under the Fourth Amendment. The rise in the arrest and mass detention of immigrants within the past decade[22] creates a situation where the civil immigration system more closely resembles the criminal system. While the government maintains that immigration falls within the civil arena, the arrest procedures in immigration are uncomfortably similar to those used with criminal suspects. When persons are detained for immigration violations, they are handcuffed and transported to local jails where they are held until provided with a bond hearing or until transferred to a private detention center. Although the procedure of handcuffing individuals and depriving them of their liberty is the same in both the immigration and criminal contexts, “ICE does not obtain judicial warrants before it arrests immigrants for deportation. Nor is there any immediate probable cause finding.”[23]  The inconsistent application of the Fourth Amendment “raises an obvious question: if local police cannot detain noncitizens because there is no judicial warrant and no probable cause, why can ICE do exactly the same thing?”[24] This inconsistency is also evident in situations where law enforcement is not permitted to enter a person’s home to execute an arrest without a warrant, however ICE is permitted to enter the same home, without a warrant or consent and arrest the individuals inside. Providing a non-citizen Fourth Amendment protection when arrested for committing a criminal act, while denying the same non-citizen Fourth Amendment protection when arrested for an immigration violation creates grave inconsistency and sanctions abuse by law enforcement in the immigration context.

If the Fourth Amendment were applied to the immigration context, ICE agents would need to conduct a preliminary investigation to obtain specific evidence demonstrating an individual’s violation of immigration law. ICE could then present the evidence to a neutral and detached magistrate, an immigration judge, and affirm that the information was obtained in good faith. If the magistrate issued a warrant for the arrest and detention of the person, ICE would then be permitted to execute the warrant outside of the home or within the home after receiving non-coerced, voluntary consent to enter. After the arrest, if ICE sought to hold the person for an extended period of time, an immigration judge would evaluate the case and determine if probable cause existed to justify prolonged privation of liberty. Following Fourth Amendment Constitutional procedures would protect the rights and interests of immigrants in liberty and privacy.

Application of the Fourth Amendment to Morales v. United States

The need for extending Fourth Amendment protection to immigrants within an immigration context is evident in Morales v. United States, a case recently filed in the Northern District of Georgia, where ICE demonstrated an unfettered abuse of power in its search and arrest practices.[25] In January 2016, ICE implemented “an Enforcement and Removal Operation (“ERO”) entitled ‘Operation Border Resolve.’”[26] The purpose of the operation was to detain and deport family units from Central American countries.[27] The operation focused on several major cities including Atlanta, GA. The plaintiffs in Morales v. United States represent three families, the Vargas family, the Gutierrez family, and the Padilla family, who were all targeted during the raids in Atlanta.[28]

In regard to the practices of ICE, the cases of the three families are very similar. In each case, ICE arrived at the family’s home in the early morning. Agents banged on the door, rang the doorbell, and shined lights into the house.[29] In each case, the agents impersonated police officers and told the residents that they were searching for a criminal suspect whom they had reason to believe was hiding inside the house.[30] In two of the situations, the residents allowed the officers to enter the house out of fear that a criminal suspect might be hiding inside. In the other case, officers pushed the door open after an explicit denial of permission by a resident to enter the home.[31] Once inside the three homes, the agents detained the families in their living rooms under the watch of armed agents, and conducted searches of the rooms without ever producing valid search warrants.[32] While detaining the families in their own homes, ICE agents participated in other questionable activities such as denying members of the family access to their phones to call their lawyers.[33] After a temporary detention within the home, ICE agents arrested certain members of the families, without producing arrest warrants, and transferred them to detention facilities.[34] In all three cases, ICE provided nebulous reasons for arresting the individuals. The detained immigrants were eventually all released and their removal proceedings cancelled.[35] In the case of all three families, if the Fourth Amendment were applied in the immigration context, ICE would clearly have acted in violation of the Constitution.

Although the plaintiffs in this case are bringing claims under the Federal Tort Claims Act, this case and cases with similar fact patterns present opportunities to request that courts extend Fourth Amendment protection to immigrants within the immigration context. In this case, ICE officers did not obtain search or arrest warrants from their own agency, much less from a neutral and detached magistrate. Additionally, it appears that there was little evidence of probable cause because the immigrants detained were ultimately released from detention and their removal proceedings cancelled. In two of the cases, ICE did obtain consent to enter the home; however, the consent was not voluntary because it was obtained through fraud and coercion. In the third case, ICE officers physically pushed the door open, ignoring the denial of consent by the resident. Inside the home, ICE searched through the rooms without producing any valid search warrants and then arrested residents without providing a clear reason for the arrests or any arrest warrants. After the arrests, the immigrants were detained for over a month without a preliminary hearing to decide whether their detention was backed by probable cause. The situation in Morales is a clear demonstration of the need to extend constitutional protection to immigrants. ICE should not be permitted to enter a home without the consent of the residents or to gain entrance through coercion or fraudulent tactics. Similarly, ICE should not have the unrestrained authority to arrest any individual without a judicial warrant backed by probable cause.


Although the Plenary Power Doctrine insulated the Government from constitutional attack in the immigration arena for over a century, courts should extend the Supreme Court’s decision in Zavydas to afford immigrants protection under the Fourth Amendment. As ICE strategies grow more aggressive, the need for the protection of immigrants from unreasonable searches and seizures also grows. Allowing immigrants’ access to Fourth Amendment protections will provide a more uniform system of law enforcement control, will safeguard the right of individuals to feel secure in their homes, and will prevent the abuse of power present in Morales, from proliferating.

[1] Matthew Haag & Christine Hauser, ICE Arrested Man in Oregon Without a Warrant. Senators Want to Know Why., New York Times (Oct. 24, 2017),; SPLC Sues Federal Government Over Unconstitutional ICE Raids, Southern Poverty Law Center (Dec. 11, 2017),; Lisa Rein, Abigail Hauslohner, & Sandhya Somashekhar, Federal Agents Conduct Immigration Enforcement Raids in at Least Six States, The Washington Post (Feb. 11, 2017),

[2] Marisa Antos-Fallon, The Fourth Amendment and Immigration Enforcement in the Home: Can ICE Target the Utmost Sphere of Privacy? 35 Fordham Urban L. J. 1000, 1012 (2007); Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem, University of Nevada, Las Vegas 126, 129 (2015).

[3] Kagan at 129.

[4] Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy? Center for Immigration Studies (Feb. 25, 2009),

[5] The Chinese Exclusion Case, 130 U.S. 581, 609 (1889).

[6] Antos-Fallon at 1012.

[7] U.S. Const. amend. IV.

[8] 445 U.S. 573, 586 (1980).

[9] Id. at 587-588.

[10] U.S. Const. amend. IV.

[11] Payton at 586.

[12] Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973).

[13] 420 U.S. 103, 114 (1975).

[14] U.S. Const. amend. IV; Payton at 586.

[15] Payton at 586; Schneckloth at 248.

[16] Gernstein at 114.

[17] Id. at 142.

[18] Id. at 143; Zadvydas v. Davis, 533 U.S. 678, 695 (2001).

[19] Zavydas at 696; Kagan at 143.

[20] Kagan at 129.

[21] Zavydas at 682; Kagan at 143.

[22] Detention Bed Quota, National Immigrant Justice Center, (last visited, Jan. 26, 2017).

[23] Kagan at 127.

[24] Id.

[25] Compaint at 1, Morales v. United States (1:16-mi-99999-UNA).

[26] Id. at 5.

[27] Id.

[28] Id. at 2-4.

[29] Id. at 6, 13, & 16.

[30] Id. at 7, 13, & 16.

[31] Id. at 8, 13, & 17.

[32] Id. at 9, 13, & 17.

[33] Id. at 14, & 17.

[34] Id. at 9-10, 14-15, & 18.

[35] Id. at 10, 15, & 18.