Funding for the Border Wall: Where’s it Coming from and Will it Survive Legal Challenges

Kyle Greene, Associate Member, University of Cincinnati Law Review

There have been fifty-eight national emergencies declared by presidents since 1979 pursuant to the National Emergency Act passed in 1975.[1] President Trump plans to enact the sixtieth to build a wall along the Southern Border in the face of an immigration crisis. While declaring a national emergency is nothing new for U.S. presidents, doing so to bypass Congress’s spending authority is unique. The move would be the first time a president declared a national emergency to free up funds that Congress declined to provide.[2] The President’s avenues to provide funding for the border wall are complex; understanding them involves a multitude of statutes to fully understand where the authority and money will come from. This blog will discuss the constitutionality of the President’s power to declare a national emergency to bypass Congress’ spending power and detail the Trump Administration’s argument.

 

The Constitutionality of the President’s Power to Act Without Congressional Approval

        At first blush, it may seem that the power of the president to declare a national emergency to appropriate funding would be the crux of the Trump Administration’s argument. However, there is alarmingly little guidance on what a president must show to declare a national emergency.[3] The argument may lie within whether Congress has expressly or implicitly authorized the President to appropriate funding for the wall.  Youngstown Sheet & Tube Co. v. Sawyer is informative.[4]  Justice Jackson’s concurrence in Youngstown introduced “the three buckets of presidential power”.[5]  Justice Jackson eloquently pronounced that the President’s power is at its greatest when he “he acts pursuant to an expressed or implied authorization of Congress”[6] and inversely, the President’s power is at its lowest when he “takes measures incompatible with the expressed or implied will of Congress”.[7] Then there is a “zone of twilight” when the president acts “in absence of either a congressional grant or denial of authority” where he can “only rely upon his independent powers”.[8] Courts and legal scholars continually cite to Jackson’s concurrence to help parse out the scope of presidential authority. Unfortunately, Justice Jackson says nothing about what to do once you determine which category of power the President is in; only that in the highest bucket, the president is likely to win, and in the lowest the president is likely to lose.[9] How would this analysis turn out in the present case? On one hand, Congress has expressly approved a spending bill giving $1.6 billion towards construction of the border, therefore, Congress has appropriated what they believe necessary to secure the border and implicitly denied the President anything more than that.[10] Moreover, the Constitution gives spending power to Congress, and some would argue the President only has the power to spend money that Congress deems necessary.[11] Challengers to the declaration might argue this puts the President in his lowest “bucket” of power. Additionally, if the Senate overrides the national emergency declaration in a vote (subject to presidential veto) pursuant to the National Emergency Act, it would be an expression of disapproval to extend the President the funding he requires.[12] On the other hand, there are a number of statutes passed by Congress expressly giving the president power to acquire additional funding. The Trump Administration has outlined which statues it will rely on its website, some of which require a National Emergency while others do not.[13] Since Congress passed these statutes it naturally follows that they have implicitly approved of the President’s power when acting pursuant to those statutes.  This would put the President in the “bucket” where his power is strongest.

In reality, The Supreme Court historically defers to the Executive and Legislative branch when faced with national emergency arguments.[14] Thus, assuming arguendo that the Supreme Court will uphold President Trump’s National Emergency Declaration,  the next step is to look at which statutes the Administration will rely upon, and if the Supreme Court will rule that the President is using the statutes correctly.

The White House’s Outline

        The White House has announced that it intends to identify $8.1 billion that will be available to build the border wall. $601 million will come from the Treasury Forfeiture Fund, up to $2.5 billion under the Department of Defense funds transferred for Support for Counterdrug Activities (U.S.C Section 284), and up to $3.6 billion reallocated from Department of Defense military construction projects (Title 10 U.S.C. Section 2808).[15] Of these statute’s only U.S.C. Section 2808 requires a national emergency.[16] The National Emergency Act of 1976 governs the President’s power to declare a national emergency This blog will analyze each of the aforementioned statutes.

 

Treasury Forfeiture Fund[17]

            The Department of the Treasury Forfeiture Fund allows the Secretary of the Treasury (Executive Branch) to make available, without fiscal year limitation, all assets from federal seizures and forfeitures made pursuant to any law for expressed law enforcement purposes.[18] The first legal hurdle the Trump Administration will need to overcome is defining building the wall on the southern border as a “law enforcement purpose.”[19] The Administration will argue that securing the border is done pursuant to immigration law and in order to better enforce those laws the wall is necessary. A “law enforcement purpose” under the statute is “contract services”.[20] The contractor whether private or governmental through the military will have a contract to build the wall, as such, it literally will be a contract for a law enforcement purpose. Another aspect of the Forfeiture Fund is that much of the fund is already obligated towards other projects, so the Trump Administration would only have access to any “unobligated balances remaining in the Fund.”[21] President Trump hopes to access $252 million unobligated funds forfeitures from the Fund immediately with another $359 million available from “future anticipated forfeitures”.[22] President Trump will likely succeed in gaining access to the Forfeiture Fund because it is being used towards a “law enforcement purpose” for “contract services.”

 

 Support for Counter Drug Activities: 10 U.S. Code Section 284

            10 U.S.C. § 284 allows the Secretary of Defense (again Executive Branch) to provide support for “counterdrug activities or activities to counter transnational organized crime . . . if requested by an appropriate department or agency of the Federal Government.”[23] One of the stated purposes for which such support can be granted is “the Construction of roads and fences . . . to block drug smuggling corridors across international boundaries of the United States.”[24] The President will likewise have little trouble gaining access to funds pursuant 10 U.S.C. § 284. The language of the statute gives expressed access to funds to combat drug smuggling by building a “fence.” Opponents of the wall will cite research showing drug smuggling across the border is down, and that most drug smugglers go through ports of entry as opposed to random unfenced areas of the southern border (this will likely be used to prove there is no national emergency).[25] However, this does not eliminate the possible argument that additional fencing will lower the number even further, or alternatively, allow law enforcement around the border to focus their efforts on ports of entry. Furthermore, the statute has no requirement that a national emergency be in effect; the funds are available at the Secretary of Defense’s discretion.[26] Another argument the opposition will put forth is that while the statute allows funding for “fences,” the Trump Administration is using it for a “wall.” A U.S. Court would likely find this argument tenuous at best; a wall, a fence, a steel barrier, or any other way it’s framed serves the same purpose, but it is a distinction that the Trump Administration will need to address. Lastly, a White House briefing notes that the funds used from the Counter-Drug Activities account will be used on land already owned by the Federal Government.”[27]In all likelihood, the $2.5 billion President Trump seeks pursuant to the 10 U.S.C. § 284  will survive a legal challenge.

 

National Emergency Act

            Before taking a look at the President’s last proposed source of funding, which does require a national emergency, it is necessary to take a look at the National Emergency Act. That National Emergency Act, signed into law in 1976, was originally drafted as a way to curb national emergency declarations.[28] The statute lays out clear cut restrictions on how long a national emergency can last without renewal or Congressional approval and allows a joint resolution by Congress to terminate the emergency, which is what we see Congress contemplating now.[29] In fact, most of the language of the statute deals with procedural and administrative guidelines that create obligations on the president. For example, a national emergency automatically terminates ninety days after it’s anniversary of declaration, and Congress is supposed to meet within six months of a declaration to determine if there is indeed an emergency.[30] Additionally, the President must submit his findings and proof that there is a national emergency to Congress.[31] Congress constructed The National Emergency Act to give a clear cut check on the President’s power to declare a national emergency. However, as Congress never met to consider a vote to stop the national emergency as is their right every six months.[32] Also the joint resolution power to stop a national emergency declaration was amended in 1985 and is now subject to presidential veto.[33] The statute’s requirement that it be renewed or terminated a year after an emergency’s enactment has done little to slow down the state of national emergencies. Presidents routinely renew the emergencies, and as of today, 28 emergencies declared under the National Emergency Act remain enacted.[34] Although the National Emergency Act started with good intentions to limit presidential power, it has in practice lost its force. Notably, and perhaps most importantly , the statue is devoid of any definition of what constitutes a national emergency, leaving no guidelines for courts to follow when determining whether a state of emergency exists.[35] Consequently, the Supreme Court may be more likely to defer judgement to the President, or suggest to the Legislative Branch that if it wants more constraints on the president’s power, it should amend the law.

Reallocation from the Department of Defense for Military Construction Projects (Title 10 U.S.C. Section 2808)

            The strongest legal challenge to the proposed funding will come from access to $3.6 billion pursuant to 10 U.S.C. § 2808, which does require a national emergency. 10 U.S.C. § 2808 allows the Secretary of Defense, “in the event of a declaration of war or a declaration by the president of a national emergency in accordance with the National Emergencies Act that requires the used of the armed forces” to undertake “military construction projects . . . not otherwise authorized by law that are necessary to support such use of the armed forces”.[36] President Trump intends to access around $3.6 billion of funds for the border pursuant to this statute, and it will most likely be a source of great debate. Assuming the national emergency declaration will be upheld, the Trump Administration will still need to prove that building the border wall is a “military construction project” and that it is  “necessary to support such use of the armed forces”.[37] “Military construction” is loosely defined within the statutes as “any construction, development, conversion, or extension of any kind carried out with respect to a military installation, whether to satisfy temporary or permanent requirements.”[38] By this definition, the Trump Administration would need to categorize the border wall as a military installation. The statute contemplates the need for construction of military bases, the acquisition of land to secure such bases, and any fencing or defense needed to secure military areas.[39] Broadening the legislative understanding of the term “military construction” may prove to be the largest barrier to President Trump’s access to the funding he seeks.

 

Conclusion

            The variety of sources the President intends to use to fund the border wall will bring legal challenges from different angles. The result may end up being a hodgepodge with Courts allowing the use of some funding, for example, from the forfeiture fund, but pushing back and denying access to funds pursuant to 10 U.S.C. § 2808 unless the President’s legal team provides ample support for its broadened definition of “military construction project.”[40]

Challengers of the national emergency declaration may face an uphill battle, as the Supreme Court routinely defers to the judgement of the Executive in matters of national security.[41] However, if Congress is concerned, perhaps the judiciary isn’t the only option for halting President Trump. Congress could pushback with some of the procedural safeguards built into the National Emergency Act as it is currently doing with a show of disapproval through a joint resolution against the declaration.[42] In the long term, Congress could try to create momentum in a bill to amend the National Emergency Act to better define what constitutes a national emergency, although this may be easier said than done, as it any amount of statutory language would have a hard time accounting for the multitude of security threats America plausibly faces.[43] The power of the President to declare a national emergency is always hotly contested and the Trump Administration’s case will be no different.

[1] Grace Segers, How Many National Emergencies Have Been Called by Presidents?, CBS News (Feb. 15, 2019), https://www.cbsnews.com/news/how-many-national-emergencies-have-been-called-by-presidents/.

[2] Alan Neuhauser, Trump Taps Civil Asset Forfeiture to Fund Border Wall, U.S. News, (Feb. 15, 2019), https://www.usnews.com/news/national-news/articles/2019-02-15/trump-taps-civil-asset-forfeiture-to-fund-border-wall.

[3] Jeffrey Rosen, Can the President Declare a National Emergency to Build the Wall?, National Constitution Center(Jan. 10, 2019), https://constitutioncenter.org/debate/podcasts/can-the-president-declare-a-national-emergency-to-build-the-wall.

[4] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

[5]Id. at 635 (Jackson, J., concurring).

[6] Id.

[7] Id.

[8] Id.

[9] Rosen, supra note 3.  

[10] Deirdre Walsh, House Approves Spending Bill With $1.6 billion For the Border Wall, CNN Politics (Jul. 27, 2017), https://www-m.cnn.com/2017/07/27/politics/spending-bill-vote-border-wall-money/index.html?r=https%3A%2F%2Fwww.bing.com%2Fsearch%3Fq%3Dcongress%2Bmoney%2Bto%2Bwall%26form%3DEDGTCT%26qs%3DPF%26cvid%3D3cc0eb90c3cc4089893d71c11d597b59%26refig%3Dc476fd53050c4138e831827d6f7891b3%26cc%3DUS%26setlang%3Den-US%26elv%3DAY3%2521uAY7tbNNZGZ2yiGNjfNLbF317ZRFBspX8HNzgZ8sbHDblGmemZBxd02XE%2521BeZQ7vcsRFx8TnvyXzGwczsJ9qe30CtSEqWawqtGv14jI1%26PC%3DDCTS.

[11] U.S. Const. art. I, § 8m cl. 1.

[12] Catherine Padhi, Emergencies Without End: A Primer on Federal States of Emergency, LawFare (Dec. 8, 2017), https://www.lawfareblog.com/emergencies-without-end-primer-federal-states-emergency.

[13] President Donald J. Trump’s Border Security Victory, The White House, National Security & Defense, (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-border-security-victory/; see also, e.g., 10 U.S.C. § 2808; 31 U.S.C. § 9705; 10 U.S.C § 284; 50 U.S.C. § 1922.

[14] Sean Illing, Trump Declared a National Emergency on the Border. I Asked 11 Experts If It’s Legal, Vox (Feb. 15, 2019), https://www.vox.com/2019/2/15/18225359/trump-speech-national-emergencies-act-border.

[15] President Donald J. Trump’s Border Security Victory, The White House, National Security & Defense, (Feb. 15, 2019), https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-border-security-victory/.

[16] 10 U.S.C. § 2808.

[17] 31 U.S.C. § 9705.

[18] Id.

[19] Id.

[20] § 9705(a)(1)(B)(i).

[21] § 9705(a)(2)(G).

[22] The Funds Available to Address the National Emergency at Our Border, National Security and Defense (Feb. 26, 2019), https://www.whitehouse.gov/briefings-statements/funds-available-address-national-emergency-border/.

[23] 10 U.S.C § 284(a).

[24] § 284(b)(7).

[25] Eugene Kiely, Will Trump’s Wall Stop Drug Smuggling, The Anneburg Public Policy Center of the University of Pennsylvania (Aug. 30, 2017), https://www.factcheck.org/2017/08/will-trumps-wall-stop-drug-smuggling/.

[26] Id.

[27] The Funds Available to Address the National Emergency at Our Border, supra note 22.

[28] https://www.vox.com/2019/2/15/18225359/trump-speech-national-emergencies-act-border.

[29] 50 U.S.C. § 1922(a); see also Gregory Korte, How Congressional Democrats could fight a Trump Wall National Emergency Declaration, USA Today (Feb. 8, 2019), https://www.usatoday.com/story/news/nation/2019/02/08/presidential-declaration-national-emergency-donald-trump-border-wall-congress-oversight/2784488002/.

[30] § 1922(c )(1). See also §1922(b).

[31] Id.

[32] Padhi, supra note 12.

[33] Id.

[34] Id.

[35] Id.

[36] 10 U.S.C. § 2808(a).

[37] Id.

[38] Id.

[39] Rosen, supra note 3.  

[40] Id.

[41] Padhi, supra note 12.

[42] 10 U.S.C. § 2808.

[43] Rosen, supra note 3.

Timbs v. Indiana: The Death of Civil Forfeiture?

Nathan Potter, Associate Member, University of Cincinnati Law Review

Timbs v. Indiana continues the swing away from the almost absolute discretion that many state governments give to law enforcement. [1] The Supreme Court of the United States held that the seizure of Timbs’s SUV was a violation of the Eighth Amendment and applied the Amendment to the states through the Due Process Clause of the Fourteenth Amendment.[2] Specifically, the Supreme Court stated that the Eighth Amendment applies to in rem cases.[3] That is because civil forfeiture is not a case against the owner of the thing, it is against the thing itself.

Why is the distinction of being against the thing, instead of the owner, an important one? It comes down to rights. A thing has no right to due process. It has no right to an attorney. It has no right to stop itself from being seized. This is how in rem civil forfeiture in this country has been growing rampant over the last several decades. Law enforcement has had the ability to seize property, which it thinks is involved in a crime, without any concrete process to allow the owner to reclaim the property. Moreover, law enforcement can seize your property without charging you with a crime.[4]

The difference between civil forfeiture and criminal forfeiture is an important one. In criminal forfeiture, the proceedings are against the person, not the thing, and seizure occurs if and after the person is found guilty of the accusation. This is the correct way to perform forfeiture because it prevents people who are convicted of a crime from benefitting from that crime after they serve their sentence. To the contrary, civil forfeiture involves no due process and typically requires the—uncharged or not convicted—individual to take his or her local law enforcement to civil court to reclaim the individual’s property. The idea is that the property, itself, is the guilty party and the property has no rights. And even if the individual is convicted of a crime, sometimes the civil forfeiture is disproportionately excessive. This was the issue in Timbs.[5]

Timbs pled guilty to selling less than $400 (not $4,000, not $40,000) worth of drugs.[6] He was sentenced to: one year of home detention, five years of probation, and required to pay $1,203 in fees and costs.[7] But, this was not enough for the state of Indiana. Local law enforcement determined that it was appropriate, even necessary, to use civil forfeiture to seize Timbs’ $42,000 Land Rover.[8] The Supreme Court even pointed out that this seizure was for a value greater than four times the maximum fine which could be collected from Timbs in this case.[9] If this does not shock you, then no abuse of law enforcement power will.

The Supreme Court disagreed with all of the state of Indiana’s arguments. The state attempted to argue that: (1) the fine was not excessive; (2) a civil forfeiture cannot be categorized as a fine; and (3) that the Excessive Fines Clause cannot be incorporated against the states.[10] Justice Ginsberg noted that the value of the SUV was more than four times the maximum fine imposable on Timbs. Additionally, the Supreme Court declined the state’s second argument, noting that civil forfeiture was categorized as a fine in Austin v. US when the forfeiture was at least partially punitive. The third argument is the one which held the most merit for the state and provided the largest opportunity for Justice Ginsberg to convey the ideology of the Court. Justice Ginsberg wrote: “Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.”[11]

Timbs is a huge win for United States citizens. While it does not eliminate civil forfeiture, it does remove the excessive cases. No longer shall law enforcement be able to take a parent’s house if their son is busted for dealing drugs.[12] Nor will highway patrolmen be able take $10,000 from a pregnant couple with no criminal charges issued.[13] However, it is important to focus attention to the parties that can change the law. Timbs should be seen as a victory for citizen’s rights, not as a victory against law enforcement. The proper action to eliminate civil forfeiture is to inform elected officials of your views and to push them to finish what the Supreme Court has started.

[1] Timbs v. Indiana, No. 17-1091, 2019 U.S. LEXIS 1350 (Feb. 20, 2019).

[2] Timbs, No. 17-1091 at *12.

[3] Id.

[4] See Sarah Stillman, Taken, The New Yorker, https://www.newyorker.com/magazine/2013/08/12/taken (last accessed March 3, 2019).

[5] Timbs No. 17-1091 at *6.

[6] Lauren Cahn, 14 Bizarre Things the Government Actually Has the Power to Do, Reader’s Digest, https://www.rd.com/culture/bizarre-government-powers/ (last accessed Mar. 3, 2019).

[7] Timbs, No. 17-1091 at *5.

[8] Id.

[9] Id.

[10] Id. at 13.

[11] Id. at 14.

[12] Brown, Pamela, Parents’ House Seized After son’s Drug Bust, CNN (Sept.8, 2014), https://www.cnn.com/2014/09/03/us/philadelphia-drug-bust-house-seizure/index.html.

[13] Deanna Paul, Police Seized $10,000 of a Couple’s Cash. They Couldn’t get it Back—Until They Went Public, Washington Post (Aug. 31, 2018), https://www.washingtonpost.com/nation/2018/09/01/police-seized-couples-cash-they-couldnt-get-it-back-until-they-went-public/?utm_term=.4ac9bb5bfda7.

The Constitutionality of Gerrymandering: Will the Supreme Court Ever Give Us an Answer?

Kyle Greene, Associate Member, University of Cincinnati Law Review

  1. Introduction

            Gerrymandering is the process by which legislative officials draw the political boundaries of their state’s districts to give one party an advantage over an opposing party at the polls. For example, Democrats will establish political districts in which only Democrats have a feasible chance of winning. The party in power in any particular state will draw the district in a way that either 1) stacks all of one party’s voters into only a few districts, 2) dilutes the voting power of a party amongst so many districts so that none can achieve a majority, or 3) stacks the majority party voters by creating bizarre district lines to capture a majority in any particular district.[1]

States have the power to regulate Congressional elections through the Elections Clause of the Constitution, which confers the power to regulate congressional elections to the legislature of each state.[2] Dating back to 1812, the majority party of any particular state has used this authority to gain political advantage both in federal and state elections.[3] In most cases, it is done quite egregiously.[4] For example, Ohio’s congressional districts are known as some of the most gerrymandered in the U.S.[5] In 2012, Republicans won 75% of the seats with only 52% of the overall vote through the use of Republican-drawn district lines.[6] This type of district manipulation can decrease the worth of votes and drastically decrease competitiveness. In 2014, the partisan advantage due to district construction was so one-sided that sixteen House seats, as well as ten of thirty-three Senate seats did not even bother to field a candidate.[7]

If elections and people’s voting rights are being manipulated by partisan district lines, what can be done to curtail it? This blog will discuss the Supreme Court’s history of trying to deal with gerrymandering as a violation of the Equal Protection Clause, as well as discussion of the implications of new gerrymandering cases that the Supreme Court has set for argument in February 2019. This article will discuss what states have done to fix the problem in light of the Supreme Court’s unwillingness to get involved, and finally it will conclude that the Supreme Court should make up its mind in deferring the solution of gerrymandering to the States or to Congress.

  1. The Supreme Court’s History with Challenges to Gerrymandering.

The Supreme Court has long held that gerrymandering based on racial discrimination is unconstitutional.[8] However, the Justices have disagreed on whether plaintiffs have standing and whether political gerrymandering is justiciable.[9] A claim is not justiciable if it deals with a political question,  if there is no injury in fact to the plaintiff, or if the Court is unable to find “manageable standards” on which to follow.[10] On the latter point, the Justices offer and disagree with each other on the test to determine if gerrymandering based on political lines violates the First and Fourteenth Amendment, the Equal Protection Clause, or the Elections Clause.[11] Although the Supreme Court has fielded numerous cases on the issue of gerrymandering, it continues to accept cases on the subject because it has yet to provide a definitive answer. As a result, district courts remain torn on how to handle gerrymandering challenges because in every Supreme Court case, the Justices change their mind on whether such a challenge has standing, what the test should be, and whether constitutional challenges to gerrymandering are justiciable.[12]

The Supreme Court first took up a gerrymandering constitutionality claim in Gaffney v. Cummings.[13] Gaffney was different than a traditional gerrymandering case because the political parties drew district lines to achieve equality between both parties at the polls, but at the cost of drawing bizarre district lines.[14] The plaintiff claimed drawing district lines based on political parties rather than population violated the Equal Protection Clause under the Fourteenth Amendment.[15] The Justices were unwilling to become involved in much debate about the issue and rejected the plaintiff’s claim. The Court wrote that it’s impossible to expect there to be no political consideration in districting because inevitably, there will always be some political consequence to how a district is drawn.[16]

Then the Court heard Davis v. Bandemer.[17] Bandemer was the first case the Supreme Court heard that dealt with gerrymandering as people perceive it today. The Republican party redrew the districts to give a large advantage to its candidates.[18] The plurality decision ruled that political gerrymandering claims were justiciable because the Supreme Court would only be ensuring the fair representation of voters, similar to the standard set forth in racial gerrymandering claims.[19] However, the Court denied the plaintiff’s claim that the district reapportionment plan violated the Equal Protection Clause because the plaintiff failed to “prove both intentional discrimination and an actual discriminatory effect”.[20] The Court essentially set up an incredibly stringent test that few plaintiffs would be able to overcome. The remaining three Justices would have held that the case was not justiciable because there are no judicially manageable standards for political gerrymandering claims”[21]

Next came Vieth v. Jubelirer where the plaintiffs again alleged gerrymandering by the majority Republican party.[22] The plurality overruled Bandemir and held that political gerrymandering claims are non-justiciable because there is no discernible and manageable standard to decide them.[23] The dissent in Vieth would have allowed the case to go forward on a district-by-district basis, with a standard akin to that of the racial gerrymandering cases. This standard would require that “any district with a bizarre shape for which the only possible explanation was a naked desire to increase partisan strength would be found unconstitutional under the Equal Protection Clause.”[24]

Finally, the Court’s most recent attempt at the issue was in Gill v. Whitford.[25] In Gill, the Supreme Court took an approach similar to the dissenters in Vieth by concluding that since the plaintiff’s claim alleged a statewide injury, they had no standing because there was no alleged injury in fact.[26] The plaintiffs must have individual injury in fact from the source of the claim; but here, the injury came from the way their individual district was drawn up, not the state as a whole. However, the Majority also noted that the plaintiffs should be given an opportunity to present evidence of how their injury stemmed from statewide redistricting through the use of data and more prepared evidence on remand to see if they can prove that their injury stemmed from the state-wide scheme.[27]

The Supreme Court’s take on the constitutionality of political gerrymandering is not crystal clear, but it is important to see how embattled the Supreme Court is on this issue in order to to understand why states are able to continue drawing partisan district lines. Generally, these cases demonstrate how the Court will either find political gerrymandering claims either non-justiciable (through political question doctrine or no manageable standards), or that plaintiffs do not have standing. There is a natural flow towards the Court deciding the cases as justiciable, but then not quite being able to say the plaintiffs offered the evidence necessary to invalidate a redistricting plan. An underlying issue may be a fear of a drastic influx of political gerrymander claims coming from all fifty states as soon as they rule one plan unconstitutional; but that should never be reason alone to allow a system of vote dilution to continue.

  • The gerrymandering saga continues: Common Cause v. Rucho[28]

On February 8th, 2019, the Supreme Court (now with two new members) will had another chance to solve the political gerrymandering puzzle. Plaintiff’s from Common Cause gave arguments in February on the merits of their claim that North Carolina unconstitutionally gerrymandered the districts of their states to favor Republicans in North Carolina’s case.

The plaintiff’s in Common Cause wisely used what they learned from Gill and only alleged injury on a district-by-district basis.[29] The plaintiffs in Common Cause were made up of democratic voters from each of the thirteen districts in North Carolina, so although they only argued injury by district, a ruling in their favor would have, in effect, made the entire redistricting scheme unconstitutional.[30] The district court agreed with the plaintiff that this litigation strategy on the plaintiff’s part satisfied precedent and had standing.[31] The district court next turned to the problem of finding judicially manageable standards (justiciability) as the previous gerrymandering cases had tried and failed to do. The district court found the answer much easier. After lengthy discussion of how harmful gerrymandering is to voter integrity and how it allows representatives to avoid responding to their constituents, they found that partisan gerrymandering infringed on a “variety of individual rights and does so by targeting the right to vote.”[32] The district court went on to say that “The Supreme Court long has recognized that when the Constitution preserves individual rights, courts have an obligation to enforce those rights.”[33] The district court discussed how the controlling precedent (Vieth, Bandemer) failed to construct a workable test that plaintiffs could overcome.[34] Since precedent failed to find a workable test, Common Cause looked at aspects of the precedent they found applicable and formulated a three prong test to apply: the plaintiffs must show 1) discriminatory intent, 2) discriminatory effects, and 3) lack of justification to prove that the redistricting plan violated the equal protection clause against a political party.[35] The plaintiff proved each element and prevailed in the claim, making the district lines as drawn in North Carolina unconstitutional. Of course, the defendants promptly appealed and were be heard by the Supreme Court.

  1. How will the Supreme Court respond?

The Plaintiffs in Common Cause should hold off on any shouts of victory just yet. In the precedential cases explained above, it is the conservative Justices that tend to find political gerrymandering plaintiffs to have a lack of standing or to be non-justiciable issues. Since conservative Justices tend to loathe veering from precedent, they may find the self-made test in Common Cause hard to swallow. While the district court test has its basis in deep historical roots (i.e. the Equal Protection clause), the conservative Justices may not appreciate the district court decreeing that plaintiffs in political gerrymandering cases deserve to fall under this net. On the other hand, the decision in Common Cause made heavy use of relatively new historical research and data, which shows how computers and technology can help draw districting lines fairly and precisely based on previous election.[36]

The technology could be able to use what state legislatures are using for evil to everyone’s advantage instead. This may help win over some of the new Justices like Justice Kavanaugh and Gorsuch, if they can see a technological alternative to partisan drawn district lines . As hopeful as that may sound, it is more likely that they stray from becoming involved in what they might see as an inherently political issue. Moreover, the Constitution expressly gives the power to the state legislature to regulate elections, and although that power is not unlimited, the conservative branch of the Supreme Court will likely find the proper redress for overstepping this power lies within the federal or state legislative branch, not with the judiciary.

Either way, the gerrymandering problem will hopefully be solved after Common Cause. The Supreme Court needs to rule definitively whether political gerrymandering is something they wish to get involved in or not so that states can improvise accordingly. For example, if the Supreme Court finally decreed that political gerrymandering is none of their business, then state legislatures would be more inclined to offer referenda to their citizens to change the State constitution and allow for independent commissions to draw district lines. Independent commissions take drawing redistricting out of partisan hands or, at least, ensure it is completed by a bipartisan committee. Different forms of independent commissions already exist in one-third of states.[37] Redistricting commissions still remain a somewhat new concept so it is difficult to see how much effect they have had just yet, but these commissions could be an effective alternative to political gerrymandering if the federal government or the Supreme Court refuses to get involved.

[1]Matt Rosenberg, How States Create Congressional Districts Based on Census Data, Thought Company (Jan. 7, 2018), https://www.thoughtco.com/gerrymandering-1435417.

[2] U.S. Const. art. I, § 4, cl. 4. See also Michael Morley and Franita Tolson, Interpretation: Elections Clause, National Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretations/elections-clause-morley-tolson (last visited Jan. 17, 2018).

[3] Rosenberg, supra note 1.

[4] See Com. Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018).

[5] Richard Gunther, Ohio Becomes Latest State to Vote down Gerrymandering, Huffington Post (Dec. 30, 2016),  https://www.huffingtonpost.com/entry/ohio-gerrymandering_us_563a5c76e4b0411d306f487e.

[6] Id.

[7] Id.

[8]  Whitcomb v. Chavis, 403 U.S. 124, (1970).

[9] See, e.g. Gaffney v. Cummings, 413 U.S. 735 (1973); Davis v. Bandemer, 478 U.S. 109 (1986); Vieth, 541 U.S. at 267; Gill v. Whitford, 138 U.S. 1916 (2018).

[10] Baker v. Carr, 369 U.S. 186, 198-200, (1961).

[11] Vieth v. Jubelirer, 541 U.S. 267, (2004).

[12] See e.g. Gaffney v. Cummings, 413 U.S. 735 (1973); Davis v. Bandemer, 478 U.S. 109 (1986); Vieth, 541 U.S. at 267; Gill v. Whitford, 138 U.S. 1916 (2018).

[13] Gaffney, 412 U.S. at 737.

[14] Id.

[15] Id. at 741

[16] Id.

[17] Davis v. Bandemer, 478 U.S. 109 (1986).

[18] Id.

[19] Id at 132.

[20] Id.

[21] Id. at 147.

[22] Vieth, 541 at 267.

[23] Id at 306.

[24] Id at 339.

[25] Gill, 138 U.S. at 1931.

[26] Id.

[27] Id.

[28] Com. Cause v. Rucho, 318 F. Supp. 3d 777 (M.D.N.C. 2018).

[29] Id at 821.

[30] Id.

[31] Id.

[32] See id. at 840-843.

[33] Id. (quoting Marbury, 5 U.S. at 166).

[34] Id. at 867.

[35] Id. at 868.

[36] Michael Wines, Is Partisan Gerrymandering Legal? Why the Courts Are Divided, The New York Times (Jan. 11, 2018), https://www.nytimes.com/2018/01/11/us/gerrymander-court-north-carolina-pennsylvania.html.

[37] Kimberly Robinson, Panels to End Gerrymandering Could Reach SCOTUS, Bloomberg Law (Jan. 4, 2019), https://www.bloomberglaw.com/document/X8NRRPLS000000?bna_news_filter=true&jcsearch=BNA%252000000167c877dfaaaf7fcf7740540000#jcite.

Consumers Continue to Fight Companies in the Battle for Their Right to Repair

Nathan Potter, Associate Member, University of Cincinnati Law Review


picture1

Consumers must continue their efforts to reclaim ownership of their purchased goods. Over the last twenty to thirty years, computer systems have been integrated into everything from watches to tractors to kitchen appliances. With this integration came software. And with this software came control. This control comes in many forms, but most common is the ability for a manufacturer to prevent a consumer from choosing where, how, and who may repair the purchased device.[1] This arises out of the copyright over the device’s software, not the physical components of the computer or the machine.

In 1998, the Digital Millennium Copyright Act (DMCA) inadvertently (or possibly intentionally) destroyed consumers’ right to choose who can repair devices. The DMCA was enacted to combat the unique challenges of protecting and regulating digital media. Title 17 of the DMCA, along with subsequent court decisions, barred non-authorized companies and tradespeople from accessing some of the information in the consumer’s device. Beginning in subsection (d), 17 U.S.C. § 1201 also provides exemptions to companies’ ability to gatekeep their software.[2] These exemptions are reviewed every three years and the public may petition the continuation or broadening of existing exemptions, or they may introduce a new category of exemptions.[3] Previous exemptions include: “unlocking” cellular phones so that they can be used on different networks;[4] accessing data from medical devices such as pacemakers and insulin pumps;[5] and granting access to the computer programs used by motorized land vehicles (namely cars and tractors).[6]

Many organizations, including The Repair Association, argue that DMCA exemptions are too slow and not robust enough to adequately protect consumers.[7] Many initiatives were enacted or were retained in 2018 due to very public outcries over consumer goods. In one instance in January 2018, Apple changed its battery repair program due to consumer reports of inadequate device longevity and performance issues, as well as a “miscommunication” which Apple sent directly to its consumers in late 2017, indicating a capping of phone performance.[8] This controversy, in addition to Apple’s demand that customers only use Apple-authorized repair services, contributed to numerous suits throughout the year. Apple is currently involved in ongoing litigation because consumers are seeking a resolution to the battery- and Apple-created system slowdown software that is adversely affecting the consumers’ devices.[9]

Apple claims the slowdown is necessary to increase the battery life of older devices because Operating System (OS) updates continue to require the usage of more system resources from iPhones and iPads. The more resources that are required, the quicker the battery will drain. Additionally, Apple will not create or allow consumers to turn off these system-slowing measures unless the consumer “jailbreaks” their device.

Thankfully, “jailbreaking” was granted a DMCA exemption in the 2015 triennial amendments.[10] Unfortunately, only a small percentage of consumers are aware of jailbreaking or can perform the process (which is actually very simple but could damage the device if performed improperly).

Alarmingly, companies are lobbying to get consumers to sign away their right to repair regardless of DMCA exception. One such example is the agreement between John Deere (and other tractor and farm supply manufacturers) and the California Farm Bureau.[11] In the agreement, John Deere agreed to supply consumers with manuals, diagnostic tools, and more. In exchange, John Deere retained control over the source code and other software utilized by the machinery. This agreement seemed beneficial to both parties. However, what it really accomplished was an assurance that John Deere retained a monopoly to repair John Deere’s products. This allowed John Deere to set prices without the threat of third-party companies legally offering identical repair services at lower rates. It is still unclear how the 2018 amendments to 17 U.S.C. § 1201 will affect this agreement. Consumers, however, are often given the benefit of contracting away their rights and the amendments specifically exclude exemptions for subscription-based services provided by the manufacturer.[12]

The Right to Repair effort continues and is expanding in 2019. Consumers can contribute in many ways. First, consumers can follow this link to select a state and write to the local representatives about the need for consumers’ right to repair. Next, consumers can vote with their wallet. Some companies have such a stranglehold on certain markets that it is not possible to purchase other brands, but in the case of cellular phones and other smart devices, there is an extremely large assortment of products and companies from which to purchase goods. Also, try to avoid purchasing goods that require a subscription service for premium usage (such as John Deere tractors). And lastly, remember that one should own what is purchased, let companies know this through social media and other outlets. Let your voice be heard!

 

[1] See e.g., 17 U.S.C. § 1201(d).

[2] 17 U.S.C. § 1201(d).

[3] 17 U.S.C. § 1201(a)(1)(C).

[4] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 Fed. Reg. 68476 (Nov. 27, 2006) (codified at 17 U.S.C. § 1201).

[5] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 80 Fed. Reg. 65958 (Oct. 28, 2015) (codified at 17 U.S.C. § 1201).

[6] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 83 Fed. Reg. 54022 (Oct. 26, 2018) (codified at 17 U.S.C. § 1201).

[7] It’s Time to Fix the DMCA, repair.org, https://repair.org/copyright/ (last visited Jan 16, 2019).

[8] Mikey Campbell, Apple Replaced 11M iPhone Batteries under 2018 Repair Program, 9M More than Average, AppleInsider (Jan. 14, 2018 1:52 AM), https://appleinsider.com/articles/19/01/15/apple-replaced-11m-iphone-batteries-under-2018-repair-program-9m-more-than-average.

[9] In re Apple Inc. Device Performance Litig., No. 18-md-02827-EJD, 2018 U.S. Dist. LEXIS 169606 (N.D. Cal. Oct. 1, 2018).

[10] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 80 Fed. Reg. 65953 (Oct. 28, 2015) (codified at 17 U.S.C. § 1201).

[11] Kyle Wiens and Elizabeth Chamberlain, John Deere Just Swindled Farmers out of their Right to Repair, Wired (Sep. 19, 2019 1:12 PM), https://www.wired.com/story/john-deere-farmers-right-to-repair/.

[12] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 83 Fed. Reg. 54022 (Oct. 26, 2018) (codified at 17 U.S.C. § 1201).