Congressional Oversight: Overreach of Authority, or Entrenched Legal Tradition?

“U.S. Capitol Building_15”by US Department of State is licensed under CC BY-NC 2.0

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction

On May 20, 2019 a D.C. District Court upheld the House of Representatives Oversight Committee’s power to conduct investigations pertinent to its legislative goals, even when those goals intersect with the President’s power.[1] The court held that the Committee had constitutional authority, through Congress’s implied power of inquiry, to request private financial statements of the President, including documents dated years prior to President Trump’s candidacy for president.[2] The decision is far from controversial when viewed in context with the Supreme Court’s jurisprudence on Congressional oversight and inquiry; the Court has not struck down an exercise of the Congressional inquiry power on Constitutional grounds since 1880.[3]

Nevertheless, the decision is important because it illustrates that, while the Supreme Court has paid lip service throughout its history to supposed limitations on Congress’s inquiry and oversight powers, these limitations are ultimately without real substance. This article will review the decision in Trump v. Committee on Oversight and Reform of the U.S. House of Representatives in context of U.S. legal tradition on legislative authority, analyzing whether the decision was correct. Finally, this article will examine whether the decision reflects a policy that will foster effective accountability between the President and Congress.

II. Background

The D.C. District Court’s decision in Trump v. Committee on Oversight and Reform of the U.S. House of Representatives came about from Congress’s massive, ongoing investigation into President Trump, his campaign, and his staff. After the President’s former attorney Michael Cohen testified before Congress alleging that the President routinely altered his financial statements in order to understate or overstate his financial position depending on the situation, the House Oversight Committee launched a series of inquiries into the President’s personal finances.[4] The Committee issued subpoenas to Mazars USA LLP, an accounting firm that provided services to the President, demanding access to several documents concerning the President himself and his affiliated organizations—the earliest of which was dated from 2011, well before Trump was even a presidential candidate.[5] The requests sparked a litigation clash between the President and the Oversight Committee over the extent of the legislative branch’s authority to investigate.

A. The President’s Arguments

The Court sorted President Trump’s arguments for why the subpoenas were unconstitutional into three general categories. First, the President argued that by allegedly investigating into the accuracy of a private citizen’s financial statements, the Committee was not engaged in “legislative” activity, but was usurping the executive and judicial branches by acting as law enforcement. Second, the President argued that since the scope of the inquiry extended beyond Trump’s time as a candidate for office, the Committee’s requests had nothing to do with government oversight, but was merely “exposure for exposure’s sake” of the conduct of a private citizen, which the Supreme Court has held to be an invalid purpose for a Congressional inquiry. Third, the President argued that the Committee did not act with a specific legislative purpose, but that it was conducting “roving oversight” without any end goal in sight, and that the financial documents from Mazars could not be related to any legislative purpose.[6]

B. The Court’s Decision

In granting summary judgement for the House Oversight Committee, the court rejected each of the President’s arguments.[7] As for the first point—that the Committee was usurping executive power by requesting documents that might reveal criminal wrongdoing—the court succinctly held that “[j]ust because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function.”[8] Moreover, the court observed that Congress has wide latitude in its committee activities, and that courts require “exacting proof” to hold that Congress has improperly intruded into the coordinate branches of government.[9] According to the court, Congress would probably need to go as far as indicate that it intended to try the President at bar for criminal wrongdoing by itself, or go on a fishing expedition at the behest of the Department of Justice to secure documents for an investigation, for the Court to conclude that Congress’s true motive in issuing the subpoenas was not legislative, but executive or judicial. Since, in the court’s reasoning, this case clearly did not constitute such an extraordinary case of overstepping of Constitutional authority, the court deferred to the Oversight Committee and concluded that the subpoenas were a valid exercise of legislative power.[10]

After dismissing the first argument, the court turned to the President’s assertion that the Committee was investigating a private citizen’s affairs. Relying heavily on the Supreme Court’s 1880 decision in Kilbourne v. Thompson,[11] where the Supreme Court held that Congress does not have “the general power of investigating the private affairs of a citizen,” the President argued that, since the inquiry focused on activity that preceded his time in office, and the inquiry was not legislative in nature, Congress had no authority to request his private records.[12] Recounting Kilbourne and its unconvincing impact on Congressional inquiries, the court found that the case was largely “impotent” as a guiding principle to limit Congressional power, as no Supreme Court or Circuit Court decision had ever declared a Congressional inquiry unconstitutional because it investigated the private affairs of a citizen. The court characterized the true nature of the Kilbourne holding as one which prohibits Congress from investigating private affairs without a valid legislative purpose.[13] To offend that standard, the court said, a Congressional inquiry must have only one predominant result—an invasion of a person’s private affairs.[14] According to the court, the presence of an underlying invasive motive by individual members of the Committee could not overcome an otherwise valid inquiry connected to a legislative goal.[15]

To that end, the court found that the subpoenas could rationally lead to legislation on ethics and disclosure laws, as well as allowing the Committee to ensure the President’s compliance with the Foreign Emoluments clause—the Oversight Committee’s provided reasons for requesting the subpoenas.[16] Because these subjects were within Congress’s authority to legislate, the inquiry was at least facially valid. Thus, while the President cited several errant remarks by some Committee members that indicated a desire to embarrass or humiliate the President with the subpoenas, the Court declined to speculate as to the “true motive” of the investigation in the face of an otherwise valid legislative purpose.[17]

The President’s final argument contained two prongs. The President argued that the documents were not reasonably relevant to a legitimate legislative purpose, because (1) the request is akin to a “fishing expedition” for which the Committee had no reason to expect it to yield specific information and (2) any contemplated legislation that might be related to the documents would be unconstitutional, and thus the Committee has no valid legislative purpose.[18]

In dismissing the first part of the argument, the court held that the standard for Congressional inquiries, “pertinence” is a much lower bar to meet than the civil litigation standard of “relevance.”[19] Moreover, according to the court, the inquiry at hand would plainly meet either standard as the documents were relevant to the Committee’s investigation into ethics and conflict of interest laws.[20] As to the second portion of the President’s argument, the court held that since the Committee had a facially valid legislative purpose in investigating potential ethics and emoluments violations by the President, as evidenced by the admissions of Trump’s personal attorney, the courts could not overstep their Constitutional authority by ruling contemplated legislation unconstitutional; doing so would amount to issuing an advisory opinion, well outside the authority of federal courts.[21]

Having dispensed with all of the President’s arguments, and finding that the Oversight Committee’s requests were reasonably related to its claimed legislative motives in ethics, conflict of interest, and emoluments laws, the court granted summary judgement to the Oversight Committee.[22]

III. Analysis

The D.C. District Court’s decision in Trump v. Oversight Committee was clearly the correct result, as even the most cursory review of the Supreme Court’s decisions on Congressional investigative authority will show. In an era where public trust in government is at an all-time low,[23] now is not the time for courts to break from tradition to shield elected officials from internal scrutiny for potential wrongdoing, even when the likelihood of revealing such wrongdoing seems low. Moreover, the term “legislative power” is far from a self-defining concept, and courts should avoid rigidly construing this term when doing so has a high likelihood of eroding fundamental, well-established checks and balances between the legislature and the executive.

The Supreme Court has long held that Congress has the implicit power to conduct inquiries and issue subpoenas to ensure that its laws are operating as intended, and to serve an informing function which allows Congress to look into corruption or inefficiencies in government.[24] In the 1927 case McGrain v. Daugherty, the Court considered whether Congress had the power to compel a private citizen to appear before it and testify as necessary to achieve a legislative purpose, and whether it appeared that Congress was actually using the testimony for its offered purpose.[25]At issue in McGrain was alleged misconduct by Attorney General Harry Daugherty, which caused the Senate to authorize a House Committee to investigate Daugherty.[26] In the course of the investigation, the Committee subpoenaed Daugherty’s brother—a banker—to provide testimony and documents from the bank where he worked which were relevant to the charges against the Attorney General.[27] The Court upheld the constitutionality of the subpoenas, observing that the power to obtain information needed to carry out its duties has long been an accepted power of the legislature, predating the United States and stretching back to Colonial Legislatures and British Parliament.[28] The House of Representatives has exercised this power as early as 1792.[29]

The Court in McGrain concluded that even the State courts have near-uniformly held that legislatures possess authority to compel discovery of information to perform their duties.[30] Even before McGrain was decided, legal scholars acknowledged the deeply entrenched nature of the powers of legislative inquiry, punishment for contempt in legislative hearings, and the power to send for persons and papers.[31] In short, there is no reasonable basis to claim that requesting documents and information is not a “legislative power” within Anglo-American legal tradition. 

However, a key issue in both McGrain and Trump is the alleged “private citizen” status of the subpoena’s subject matter. This issue really contains two separate questions: first, does the legal tradition of legislative oversight make a distinction between “public” and “private” persons; and second, is there any compelling policy reason to treat public and private persons differently when it comes to Congress’s power to gather information and conduct oversight?

As for the first question, the answer seems to be a soft “yes.” In Kilbourne, which may be the only case where a Congressional subpoena was held unconstitutional by a federal court, the Court held that Congress had exceeded its authority by investigating an unfavorable settlement with a bank to which the United States was a creditor.[32] The case has often been cited—as President Trump did in Trump v. Oversight Committee—to support the proposition that Congress does not have the general power to investigate the private affairs of a citizen.[33] However, this supposed limitation has proved to be toothless in practice. Since Kilbourne was decided in 1880, no Court of Appeal or Supreme Court case has ever struck down a Congressional subpoena on the grounds that it was an “investigation into the private affairs of a citizen.”[34]

As for the second question, practicality requires that the answer be “no.” The vast majority of conduct regulated by Congress is private; to effectively create laws that punish white collar crime, Congress may need to inquire into private business affairs; if a new technology arises that poses a threat to the safety of its constituents, Congress must be able to summon private scientists and businesspersons familiar with the technology to effectively proscribe regulations. Moreover, the testimony of private individuals may be necessary even when Congress investigates public officials like the President. The case at hand is the perfect illustration of this principle; but-for the time frame of the Mazars documents, which includes documents before Trump’s presidency, there would be no question that in the interest of possible impeachment proceedings, for example, the House could subpoena the President’s records from a private company. However, since the Committee requested some documents from before Trump’s presidency began, the President argued that they were irrelevant to a goal of public oversight. Such an argument has no basis in the law; writing for the Court in Watkins v. United States,Chief Justice Warren observed that citizens are entitled to know the inner workings of their government, and that Congress has the power to aid in that pursuit.[35] Whether the President of the United States has committed crimes, some of which may be ongoing, certainly falls under the umbrella of the inner workings of government to which the public is entitled to know.

IV. Conclusion

Modern legal scholarship on the effectiveness of Congressional oversight is limited, and what little study exists on this subject is inconclusive.[36] If politicians engage in covert dealings with private entities that creates conflicts of interest and a risk of corruption, they cannot be allowed to shield their misconduct behind the private entity through an artificially-imposed barrier. Such a barrier would ensure the evisceration of Congressional Oversight as a potentially effective check on the Executive. Thus, courts must continue to give wide deference to the judgment of Congress when evaluating the Constitutionality of an investigation as an exercise of legislative power.


[1]Trump v. Committee on Oversight and Reform of the U.S. House of Reps., 380 F.Supp. 3d 76 (D.D.C. 2019).

[2]Id.at 82.

[3]Id. at 99.

[4]Id. at 84-85.

[5]Id. at 86.

[6]Id. at 96-97.

[7]See id. at 105.

[8]Id. at 97.

[9]Id.

[10]Id. at 98.

[11]103 U.S. 168 (1880).

[12]Trump, 380 F. Supp. 3d at 99.

[13]Id. at 100.

[14]Id.

[15]Id. at 101.

[16]Id. at 96.

[17]Id. at 101. 

[18]Id. at 101-103.

[19]Id. at 101.

[20]Id.

[21]Id. at 103.

[22]Id. at 105.

[23]Public Trust in Government: 1958-2019, Pew Research Center (Apr. 11, 2019), https://www.people-press.org/2019/04/11/public-trust-in-government-1958-2019/ (last visited Sept. 17, 2019).

[24]See e.g. McGrain v. Daugherty, 273 U.S. 135 (1927); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957).

[25]273 U.S. at 154-55.

[26]Id. at 151-52.

[27]Id. at 152.

[28]Id. at 161-62.

[29]Id.

[30]  Id.at 165.

[31]James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 169 (1926).

[32]Kilbourne, 103 U.S. at 168.

[33]McGrain, 273 U.S. at 171.

[34]Trump v. Committee on Oversight and Reform of the U.S. House of Reps., 380 F. Supp. 3d 76, 99 (D.D.C. 2019).

[35]Watkins, 354 U.S. at 200.

[36]Carl Levin, Defining Congressional Oversight and Measuring its Effectiveness, 64 Wayne L. Rev. 1, 22 (2018).

US-China Trade War: The Authority to Levy Tariffs

Trading Post” by Felix63 is licensed under CC BY-NC-ND 2.0.

Theron Anderson, Associate Member, University of Cincinnati Law Review

I. Introduction

In a reaction to the economic activity between the United States and China, President Trump has exercised the presidential power to levy tariffs against the foreign rival.[1] The tariffs exercised are “taxes or duties that are imposed on a specific class of imports or exports.”[2] The specific tariffs exercised by President Trump are a tax on exports originating from China. In exercising this authority, questions arise of the origins of this power to place tariffs on China’s products and whether this power is well-suited in the hands of the Executive Branch. Interpreting the text of the Constitution to determine the correct course of action, it is clear that the Legislative Branch is the correct wielder of the power to levy tariffs. 

II. Background

Far before President Trump took office as the Commander in Chief, he expressed distaste for China’s trade practices.[3] While campaigning for the office, retaliation to the China’s trade practices stood as a pillar of his platform.[4] These comments came to fruition when President Trump signed a memorandum, dated March 22, 2018, directing an imposition of tariffs on Chinese products.[5] On June 15, 2018, the United States finalized and implemented the first list of 818 products that would be susceptible to a 25% tariff.[6] True to his statements before taking office, President Trump alleged that the motivation of this act was the unfair trading practices of China, as well as the amount of intellectual property theft occurring within their jurisdiction on their watch.[7] China was quick to impose tariffs of their own against the United States in retaliation to the power exercised by President Trump.[8]

Since the memorandum signed by President Trump, the United States and China engaged in a tit-for-tat tariff competition that has affected billions of dollars of goods, influencing those involved to label the activity as a trade war.[9] From the outset of the trade war initiated by President Trump, China appeared to be skeptical of the advertised motivation of the initial United States’ tariffs.[10] Some within China have the belief that the trade practices of China are pretext for the United States attempt to affect the continuous growth of China’s economy and spur a comeback of their own.[11]

In wars over trade, “victory can only be achieved when the country has more bargaining leverage than its opponent.”[12] It becomes a game of who can punish the opposition the most.[13] While both sides are hurting, neither side is clearly winning or losing.[14] A formula of no leverage and no clear victor results in a trade war with no clear end.[15] As the United States travels down the path with no true end, one could inquire about the authority of President Trump that is taking the country down that path. 

III. Separation of Powers 

An understanding of the separation of powers is key to building a foundational understanding of the authority that President Trump has wielded in the trade war against China. The term separation of powers was created by Charles-Louis de Secondat, a social and political philosopher in 18thcentury France.[16] This term divides political authority of the state into legislative, executive, and judicial powers.[17] Designating the three powers as branches of government, each is assigned a different role. Focusing on the two branches at issue regarding the power to tariff, the legislative branch is tasked with enacting laws of the state and appropriating the money needed to operate the government.[18] The executive branch is tasked with implementing and administering the public policy enacted and funded by the legislative branch.[19]

The intention of the model is to prevent the concentration of power in one unit and provide checks and balances.[20] Each branch is granted a limited authority to check another branches authority to ensure balance among the branches. 

Throughout the life of the Constitution, a natural ebb and flow has existed between the branches.[21] At times, a certain branch might have wielded more power than expressly granted to it by the text of the Constitution. Due to the system of checks and balances set in place, the government is equipped with the tools to maintain the desired balance. 

IV. Presidential Tariff Power 

As written in the Supreme Law of the Land, the Constitution, Congress “shall have the Power to lay and collect Taxes, Duties, Imposes and Excises.”[22] They shall also “regulate Commerce with foreign Nations, and among the several States.”[23] And, perhaps most importantly, Congress has the authority “to make all Laws which shall be necessary and proper” to carry out the powers that are given to them within section 8 of Article I.[24] Interpreting this language, the clauses of the Constitution authorize Congress to raise taxes, including tariffs, and make laws necessary to regulate commerce with foreign nations. 

Within the section granting Presidential powers, the Constitution states that the President shall have the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”[25] While this clause does contain ingredients of international power, the Constitution omits an expressed power over international commerce and trade.[26]

This lack of expressed Presidential power is compensated by the ebb and flow of tariff authority to the executive branch over the years due to congressional delegation.[27] Over the past 100 years, numerous laws have been implemented that grant the President authority to manipulate tariffs.[28] In the most recent display of discretion, President Trump cited Section 232 of the Trade Expansion Act of 1962.[29] To trigger this authority, President Trump pointed the Secretary of Commerce to a potential threat of national security regarding trade.[30] A positive finding of a security threat unlocked the door to the President’s room of trade war tactics.[31]

V. Analysis

Due to the text of the Constitution, the need for balance within the government, and the United States non-engagement in a prototypical war, the correct possessor of the authority to levy tariffs belongs to the Legislative Branch. 

When the roles of the governmental branches become unclear, the Constitution should be the used as an answer key. Within that text, Congress is the true possessor of the authority to levy taxes, as written within Section 8 of Article 1. In addition, Congress is the possessor of the power to make any law necessary to effectuate that end.

Congress’s grasp on the tariffs power is also a necessary check on the foreign policy authority of the President to ensure balance within the government. The President is the first point of contact between foreign nations and the people of the United States. Allowing too much power to be wielded while abroad could have domestic consequences, as experienced currently with the US-China trade war. 

During a time of prototypical war where lives are at stake, the authority to levy tariffs could be an important tool to subdue the opposition. Under the current circumstances, no sense of urgency exists to warrant the quick action of tariff imposition. Therefore, the ability of the President to implement tariffs quickly is immaterial. Even if a time of crisis existed, allocation of power should not be decided based on who can move the quickest.[32] The allocation should be determined based on who is granted that authority under the Constitution.[33]

VI. Conclusion

In the second half of the Constitution’s life, the authority to levy taxes has moved from the rightful hands of the Legislature into the grasp of the Executive. The transfer goes against the foundation of the United States based on the text of the Constitution and the separation of powers principle that surrounds it. Therefore, the government should be led to curb the growing authority of the Executive and grant it back to the rightful owner, the Legislature.  


[1]Dorcas Wong, The US-China Trade War: A Timeline, China Briefing (September 23, 2019), https://www.china-briefing.com/news/the-us-china-trade-war-a-timeline/.

[2]Rea Regan, A Closer Look at How the Trade War Impacts Small Business, Connecteam (August 27, 2019), https://connecteam.com/trade-war-small-business/.

[3]Wong, supra note 1. 

[4]Id.

[5]Id.

[6]Id.

[7]A quick guide to the US-China trade war, BBC News (September 2, 2019), https://www.bbc.com/news/business-45899310.

[8]Wong, supra note 1. 

[9]Id.

[10]A quick guide to the US-China trade war, BBC News, September 2, 2019, https://www.bbc.com/news/business-45899310. 

[11]Id.

[12]Charles Hankla, Who has the upper hand in the U.S.-China trade war?, Market Watch (August 10, 2019), https://www.marketwatch.com/story/who-has-the-upper-hand-in-the-us-china-trade-war-2019-08-05.

[13]Id.

[14]Id.

[15]Id.

[16]Separation of Powers – An Overview, NCSL (May 1, 2019), http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx.

[17]Id.

[18]Id.

[19]Id.

[20]Id.

[21]Id

[22]U.S. Const. art. I, §8, cl. 1.

[23]U.S. Const. art. I, §8, cl. 3.

[24]U.S. Const. art. I, §8, cl. 18.

[25]U.S. Const. art. II, §2, cl. 2.

[26]Caitlain Devereaux Lewis, Cong. Research Serv., R44707, Presidential Authority over Trade: Imposing Tariffs and Duties (2002).

[27]Tara Golshan, Why Trump can raise steel tariffs without Congress, Vox (April 8, 2018), https://www.vox.com/2018/3/8/17097206/trump-tariffs-congress.

[28]Lewis, supra note 26.

[29]Golshan, supra note 27.

[30]Id.

[31]Id.

[32]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Frankfurter, J., concurring).

[33]Id.

How to Constitutionally Treat Prisoners with Gender Dysphoria

Gender Neutral & Accessible Canada Day” by Mike Gifford is licensed under CC BY-NC 2.0.

Nicolette Crouch, Associate Member, University of Cincinnati Law Review

I. Adree Edmo’s Journey

Adree Edmo is serving ten years in prison for sexually abusing a 15-year-old boy.[1] When she was incarcerated in 2012, her name was Mason Edmo.[2] Edmo had identified as female since about age 6.[3] After entering prison, Edmo’s treating psychiatrist diagnosed her gender dysphoria,[4] which the American Psychiatric Association defines as a “marked incongruence between one’s experienced/expressed gender and assigned gender, of at least 6 months’ duration . . . .”[5] Shortly thereafter, Edmo changed her legal name to Adree Edmo and the sex on her birth certificate to “female.”[6] Throughout her incarceration, Edmo presented as female, wearing makeup and feminine hairstyles.[7] Since 2012, prison officials of the Idaho Department of Correction (“IDOC”) had provided hormone therapy to treat Edmo’s gender dysphoria.[8] Additionally, Edmo received treatment for mental health issues such as a major depressive disorder, anxiety, and drug and alcohol addiction.[9]

After Edmo tried to castrate herself, she brought suit against IDOC prison officials, Corizon, Inc. (the health care provider for IDOC) and others, alleging that the denial of gender confirmation surgery (“GCS”) violated the Eighth Amendment of the Constitution.[10]

This article proposes guidelines that courts should follow when deciding if prisons are constitutionally required to provide GCS to inmates for gender dysphoria. Part II of this article discusses the landmark case Estelle v. Gamble, which established the rule that deliberate indifference to serious medical needs could be an Eight Amendment violation.[11] Part III focuses on the Ninth Circuit’s recent ruling in Edmo v. Corizon, Inc.[12] that found prison officials had violated the Eighth Amendment for not providing Edmo with GCS. Part IV describes the Fifth Circuit ruling in Gibson v. Collier[13] that held prison officials’ decision to deny an inmate GCS was not deliberate indifference. Finally, Part V discusses how courts should analyze prison medical care claims under the deliberate indifference standard.

II. Prisons Must Provide Adequate Medical Care to Inmates

The Eighth Amendment prohibits cruel and unusual punishment of inmates.[14] In Estelle v. Gamble, the Supreme Court interpreted this prohibition to include “deliberate indifference to serious medical needs of prisoners.”[15] Accordingly, constitutional protection is granted only when an inmate can show that prison officials (1) acted with deliberate indifference (2) to the inmate’s serious medical need.[16] For purposes of this article, gender dysphoria is presumed to be a serious medical need.[17]

In Estelle, the inmate claimed that the prison violated the Eighth Amendment when it provided allegedly inadequate treatment for a back injury the inmate had sustained during prison work.[18] Although the Supreme Court ruled that failing to provide an inmate with proper medical care could constitute cruel and unusual punishment, the Court found that the inmate’s specific medical treatment did not meet that threshold.[19] In its reasoning, the Court provided several examples of deliberate indifference to medical needs, including intentional poor responses to inmates’ medical needs, intentional delays or denials of treatment, and intentional interference with treatment.[20] But the Court explained that the standard was not so broad as to encompass negligent treatment.[21] For example, there is no Eighth Amendment violation where an inmate merely disagrees with a physician’s treatment choices.[22] The Court did not elaborate on other types of conduct that constitute deliberate indifference,[23] leaving lower courts to more precisely define deliberate indifference.[24]

III. The Argument for Providing GCS: Edmo v. Corizon, Inc.

This year, the Ninth Circuit addressed the deliberate indifference standard in Adree Edmo’s case.[25] Here, the Ninth Circuit ruled that “responsible prison officials were deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment” for not providing GCS to Edmo.[26] The court’s remedy was to order the state of Idaho to provide Edmo with the surgery.[27]

Edmo sought GCS despite already receiving  hormone therapy and other treatment for gender dysphoria.[28] After attempting to castrate herself, Edmo was evaluated by the psychiatrist for GCS.[29] However, the psychiatrist did not recommend GCS, finding that Edmo did not satisfy criteria published by the World Professional Association for Transgender Health (“WPATH Standards”) or additional criteria required by the psychiatrist.[30] Although the psychiatrist recognized that Edmo’s gender dysphoria had worsened, the psychiatrist reported that Edmo failed to meet two of the six criteria required under the WPATH Standards for recommending GCS: the fourth prong, which required that “significant medical or mental health concerns . . . be well controlled,” (the “Mental Health Prong”) and the sixth prong, which required “12 continuous months of living in a gender role that is congruent with [the patient’s] gender identity.” (the “Gender Role Prong”).[31] With respect to the Mental Health Prong, the psychiatrist reasoned that Edmo experienced mental health issues separate from gender dysphoria that were not under adequate control.[32] Regarding the Gender Role Prong, the psychiatrist opined that Edmo needed to experience living as a woman outside of prison.[33] For those reasons, the psychiatrist concluded that GCS was not medically necessary for Edmo.[34]

The Ninth Circuit disagreed and held that Edmo established that GCS was medically necessary and, therefore, refusing to provide GCS constituted deliberate indifference by IDOC.[35] The Ninth Circuit explained that prison officials are deliberately indifferent when they provide treatment that is “medically unacceptable under the circumstances. . . .”[36] The court concluded that failing to provide GCS to Edmo was medically unacceptable.[37] The Ninth Circuit relied on the district court’s determination that the testimony of the psychiatrist and the State’s medical experts (collectively, the “State’s Experts”) was unsound, while the testimony of Edmo’s medical experts was credible.[38] First, the Ninth Circuit declared that the district court did not err in giving greater weight to the opinions of Edmo’s experts over those of the State’s Experts because the State’s Experts lacked “requisite experience.”[39] Second, the court asserted that the opinions of the State’s Experts “directly contradicted” the WPATH Standards of Care.[40] The court pointed to the Psychiatrist’s opinion regarding the Gender Role Prong.[41] This opinion, the court explained, ran “head-on” into the WPATH Standards of Care that provide that “[a]ccess to medically necessary treatment should not be denied on the basis of institutionalization . . . .”[42] Finally, the court found opinions of the State Experts “illogical and unpersuasive” because aspects of the opinions differed from those Edmo’s experts.[43] For example, Edmo’s experts found that Edmo exhibited symptoms of gender dysphoria for a sufficient length of time to receive the surgery.[44] However, the State’s Experts disagreed and cautioned that GCS was not yet appropriate because Edmo failed to present pre-incarceration medical records that documented symptoms of gender dysphoria.[45]

Accordingly, the Ninth Circuit upheld the district court’s determination that testimony from Edmo’s experts proved that GCS was medically necessary for Edmo.[46] The court affirmed the district court’s determination that IDOC acted with deliberate indifference in declining to provide Edmo with GCS, in violation of Eighth Amendment.[47]

IV. The Argument Against Providing GCS: Gibson v Collier

In contrast, the majority opinion in Gibson v. Collier relied heavily on evidence of an ongoing debate within the medical community about the necessity of GCS to hold that prison officials did not act with deliberate indifference in denying GCS to the inmate.[48]

Like Edmo, the inmate in Gibson was diagnosed with gender dysphoria during her incarceration.[49]Prior to claiming an Eighth Amendment violation, the inmate attempted castration and suicide.[50] The inmate acknowledged that mental health counseling and hormone therapy helped alleviate gender dysphoria to an extent.[51] However, after requesting and not receiving an individualized assessment for GSC, the inmate filed suit and challenged the refusal as deliberate indifference to her medical needs.[52] The majority disagreed with the inmate and concluded that prison officials are deliberately indifferent only when officials act “with malicious intent – that is, with knowledge that they were withholding medically necessary care.”[53] The majority found no malicious intent when prison officials deny a treatment that is debated and lacks consensus within the medical community.[54] The majority explained that a “single dissenting expert” does not “automatically defeat[] medical consensus about whether a particular treatment is necessary . . . But where, as here, there is robust and substantial good faith disagreement dividing respected members of the expert medical community, there can be no claim under the Eighth Amendment.”[55]

The majority reviewed evidence of the medical controversy from Kosilek v. Spencer[56] and the Center for Medicare & Medicaid Services under the U.S. Department of Health and Human Services (“CMS HHS”).[57] The majority acknowledged that the WPATH Standards provide that, “for many [transgender people], [GCS] is essential and medically necessary to alleviate their gender dysphoria.”[58] However, the majority described testimony from medical experts in Kosilek that (1) expressed hesitation to rely on the WPATH Standards; (2) emphasized  the availability of other noninvasive treatment options; (3) expressed concerns that WPATH Standards were driven by political considerations rather than medical judgement; and (4) emphasized gaps in the medical community regarding the long-term effects of GCS.[59] Additionally, the majority cited a CMS HHS memorandum that declined to mandate coverage for GCS with respect to Medicare and Medicaid patients, finding that “there is not enough high quality evidence to determine whether [GCS] improves health outcomes . . . .”[60] The majority found that this evidence demonstrated that the WPATH Standards of Care reflected only one side in a “sharply contested medical debate” over whether GCS is necessary to treat gender dysphoria.[61]

The majority concluded that prison officials were not deliberately indifferent in denying GCS to the inmate because the medical community was “deeply divided about the necessity and efficacy of [GCS].”[62]

V. A Comprehensive Analysis of Medical Care for Inmates

Both the Ninth Circuit and Fifth Circuit erred by leaving out important factors in their analyses of the deliberate indifference standard. The Ninth Circuit erred in suggesting that if an illness has a medically recognized treatment, the Eighth Amendment requires prisons provide it to inmates. The Fifth Circuit erred in allowing a prison to deny a medically recognized treatment without conducting an individualized assessment of the inmate’s particular medical needs. When determining whether a prison is constitutionally obligated to provide a treatment to an inmate, courts should consider both the inmate’s particular needs and other factors like security risks within a prison.[63]

The Supreme Court has suggested that a refusal to individually evaluate inmates for medical treatment could violate the Eighth Amendment.[64] In Estelle, the Supreme Court explained that deliberate indifference could occur through intentional denial or interference with an inmate’s medical care.[65] If “intentionally interfering”[66] with treatment could violate the Eighth Amendment, it follows that a blanket refusal to evaluate an inmate for treatment could violate the Eighth Amendment. Moreover, the policy followed by the prison in Gibson even instructed that inmates with gender dysphoria be “evaluated by appropriate medical and mental health professionals and [have their] treatment determined on a case by case basis. . . .” (emphasis added).[67] Therefore, the Fifth Circuit erred in allowing prison officials to deny GCS without evaluating whether the treatment was medically necessary for the inmate.

However, prison medical care analysis should not end after reviewing the inmate’s particular medical needs. Courts should consider other factors that alter the scope of medical treatment provided to inmates.

First, cost considerations are notably absent from deliberate indifference jurisprudence.[68] By ignoring costs, courts drain judicial resources on cases that affect a limited percentage of inmates.[69] Additionally, courts might award prisoners treatment that is out of reach for average, non-incarcerated members of society. Although cost estimates vary, the Philadelphia Center for Transgender Surgery, for example, estimates $21,400 to transition from male to female, and $24,900 to transition from female to male.[70] Therefore, when deciding whether prisons should provide particular treatment to inmates, courts should examine Medicaid coverage decisions and private insurance decisions about the same treatment. These coverage decisions signal whether states and private entities have chosen to fund particular treatment. By analyzing Medicaid and private insurance coverage decisions about a particular treatment, courts can weigh the cost of the particular treatment in their Eighth Amendment analyses. This is because states and private insurers have likely already considered cost in deciding whether to fund a particular treatment.[71]

Next, courts should give deference to prison officials regarding security and safety concerns surrounding an inmate’s circumstances. The Supreme Court has ruled that prison officials must protect inmates from harm.[72] Such deference is crucial because the Supreme Court explained that “courts cannot assume that state legislatures and prison officials are insensitiveto the requirements of the Constitution or to the perplexing sociological problems of how best to achieve the goals of the penal function of the criminal justice system.” (emphasis added).[73]

Finally, courts should consider expert testimony of medical professionals about particular treatments. Because cost and security concerns, alone, could block many treatment options for inmates, medical opinions and recommendations help courts examine the necessity and efficacy and, alternatives to, particular treatments. Both theCorizon court and Gibson majority relied heavily on expert medical testimony in reaching their conclusions.[74]

When determining whether a prison must constitutionally provide a particular treatment to an inmate, courts should first examine the inmate’s medical needs. But, the analysis should not end there. Courts should balance the inmate’s medical needs against cost, prison security concerns, and medical expert testimony.

VI. Conclusion

The Corizon decision will likely spur more Eighth Amendment Claims from criminals suffering from gender dysphoria who seek GCS after being denied the surgery. By expanding medical care analysis for prisoner to include factors like cost, security, and medical testimony, courts can better understand how such treatment decisions are made outside of prison – by the average American, by states, and by medical professionals.


[1]Amanda Peacher & James Dawson, State Must Provide Gender Confirmation Surgery To Idaho Inmate Adree Edmo, Boise State Public Radio, (Sept. 13, 2019) https://www.boisestatepublicradio.org/post/state-must-provide-gender-confirmation-surgery-idaho-inmate-adree-edmo#stream/0.

[2]Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 at *7 (9th Cir. Aug. 23, 2019).

[3]Id.

[4]Id.

[5]Id. at *4.

[6]Id. at *7.

[7]Id.

[8]Id.

[9]Id. at *8.

[10]Id. at *10.

[11]Estelle v. Gamble, 429 U.S. 97, 106 (1976).

[12]2019 WL 3978329, at *1.

[13]Gibson v. Collier, 920 F.3d 212, 220-21 (5th Cir. 2019).

[14]The Eighth Amendment of the Constitution states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const., amend. VIII.

[15]429 U.S. at 106.

[16]Id.

[17]Corizon, 2019 WL 3978329, at *19 (declaring that the parties agree that gender dysphoria is a “sufficiently serious medical need to trigger the State’s obligations under the Eighth Amendment.”).

[18]429 U.S. at 98-101.

[19]Id. at 97.

[20]Id.

[21]Id. at 105-06.

[22]Id. at 107.

[23]See id. at 102-06.

[24]See, e.g., Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 (9th Cir. Aug. 23, 2019).

[25]Corizon, 2019 WL 3978329, at *1.

[26]Id. at *3.

[27]Id.

[28]Id. at *23-24.

[29]Id. at *24.

[30]Id. at *27-29.

[31]Id. at *27 (quoting The World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, 60 (7th ed. 2011)).

[32]Id. at *27.

[33]Id.

[34]Id.

[35]Id. at *1.

[36]Id. at *57 (quoting Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016)).

[37]Id. at *59-60.

[38]Id.

[39]Id. at *61-63.

[40]Id. at *66.

[41]Id. at *27, 64.

[42]Id. at *65 (quoting Standards of Care at 67).

[43]See id. at *66-74.

[44]Id. at *66.

[45]Id. at *23.

[46]Id. at *69.

[47]Id. at *3.

[48]Gibson v. Collier, 920 F.3d 212, 220-24 (5th Cir. 2019).

[49]Id. at 216-17.

[50]Id. at 217.

[51]Id.

[52]Id. at 218.

[53]Id. at 220.

[54]Id.

[55]Id.

[56]Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) (en banc).

[57]Gibson, F.3d 212at 221-23.

[58]Id. at 218-21 (quotingStandards of Careat 54).

[59]Id. 221-22.

[60]Id. 223; Centers for Medicare & Medicaid Services, Decision Memo for Gender Dysphoria and Gender Reassignment Surgery48 (Aug. 30, 2016), https://www.cms.gov/medicare-coverage-database/details/nca-decision-memo.aspx?NCAId=282.

[61]F.3d 212at 221.

[62]Id. at 220-21.

[63]See, e.g., Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 (9th Cir. Aug. 23, 2019); see also Farmer v. Brennan, 511 U.S. 825 (1994).

[64]See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976).

[65]Id. at 104-05.

[66]Id.

[67]Gibson, F.3d 212at 217-18.

[68]See, e.g., Corizon, 2019 WL 3978329 (9th Cir. Aug. 23, 2019); Gibson, F.3d 212at 221-23.

[69]Marek Mędraś & Paweł Jóźków, Transsexualism — diagnostic and therapeutic aspects, 61 Polish J. Endocrinology412, 412-13 (2010) (reviewing a 2010 study reported that gender dysphoria affects less than 0.01% of the population).

[70]The Philadelphia Center For Transgender Surgery, Male To Female Price List, http://www.thetransgendercenter.com/index.php/maletofemale1/mtf-price-list.html (last visited Sept. 20, 2019); Female to Male Price List, http://www.thetransgendercenter.com/index.php/femaletomale1/ftm-price-list.html (last visited Sept. 20, 2019).

[71]National Conference of State Legislatures, Understanding Medicaid: A Primer for State Legislators(Aug. 30, 2019) http://www.ncsl.org/research/health/understanding-medicaid-a-primer-for-state-legislators.aspx (explaining why the Medicaid program is costly for states).

[72]Farmer v. Brennan, 511 U.S. 825 (1994). In this case, the prisoner-petitioner presented as female and was sexually assaulted by other inmates.

[73]Rhodes v. Chapman, 452 U.S. 337, 352 (1981).

[74]See Edmo v. Corizon, Inc., No. 19-35017, No. 19-35019, 19-35017, 2019 WL 3978329 at *59-60 (9th Cir. Aug. 23, 2019); Gibson v. Collier, 920 F.3d 212, 221-23 (5th Cir. 2019).

Anticommandeering Doctrine Protects States’ Right to Gamble

“Roulette table gambling”by Best Free Bets is licensed under CC BY 2.0

Theron Anderson, Associate Member, University of Cincinnati Law Review

This is the first article in a two-part discussion on sports betting. Click here to read Ohio’s response.

I. Introduction

On May 14, 2018, the Supreme Court reached a decision invalidating an Act that prevented states from opening the doors to sports betting within their jurisdictions.[1] Through this decision, the Court drew a visible line in the sand showing where they stand in the battle of federal and state powers in the war of federalism. The line was created through the stick of anticommandeering—a doctrine used to protect the states from the encroachment of the federal government on their powers. Part II discusses the case of Murphy v. NCAA, along with how it added another element to this protective doctrine. Part III will illustrate the reactions, and validity of those reactions to the case, as well as the possible congressional limitations that could be placed on this newfound state freedom. 

II. Background

In a reaction to a national push for the legalization of sports gambling in the late 20thcentury, Congress turned to legislation, and the Professional and Amateur Sports Protection Act (“PASPA”) was born.[2] Generally, this legislation made it unlawful for a State to “authorize” sports gambling.[3] When voicing support for the Act, legislators pointed to the need to protect the youth from gambling as well as the “integrity of sports.”[4] Despite barring the state authorization of gambling, Congress featured an exception in the Act that allowed active sports gambling, which took place in Nevada, Oregon, Montana, and Delaware, to continue.[5] These provisions were referred to as “grandfather” provisions.[6] Sports gambling was not made a federal crime in order to keep the Act consistent with the active gambling states, but the remedies of civil actions were available to prevent the spread to other states.[7] In support of New Jersey’s state congressional discussions, the Act also featured a provision that granted New Jersey the option of legalizing sports gambling in Atlantic City.[8] A deadline of one year from the Act’s effective date was placed on the option, which New Jersey failed to exercise.[9]

After missing the deadline to legalize gambling in Atlantic City, New Jersey voters decided that gambling was in the best interest of the State’s economy.[10] After New Jersey approved an amendment to the State Constitution allowing the legislature to legalize gambling, major professional sports leagues and the National Collegiate Athletic Association (“NCAA”) quickly reacted and brought an action in federal court against the agents of the State.[11] The provision at issue in PASPA made it “unlawful” to “authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling or wagering schemes based . . . on” sporting events.[12] After numerous years of hearings by the lower federal courts, the Supreme Court granted review of the case to rule on the constitutional issues.[13]

When assessing the facts of the case, the Justices of the Court questioned whether the anticommandeering doctrine was violated. The doctrine was created in the cases of New York v. United States[14] and Printz v. United States.[15] The anticommandeering doctrine “withhold[s] from Congress the power to issue orders directly to the State.”[16] The doctrine was derived from the principle that “both the Federal Government and the States wield sovereign powers” and work together cohesively as “dual sovereigns.”[17]

The Court reached the conclusion that the PASPA provision at issue violated the anticommandeering doctrine due to the provision “dictat[ing] what a state legislature may or may not do.”[18] This case presented a new anticommandeering issue because the Act in question was not directing the states to take certain actions, as found in New York and Printz, but rather directed the states to refrain from certain conduct.[19]

Those supporting PASPA argued that this should distinguish the case at bar and move it outside the reach of the anticommandeering doctrine.[20] The Court disagreed and ruled that the doctrine applies to affirmative actions commanded by Congress as well as imposed prohibitions.[21] The litigation culminated in the Court ruling that the provision concerning the state authorization of sports gambling was in violation of the anticommandeering doctrine, and therefore invalid.[22] The Court went on to invalidate the entirety of PASPA due to it being “evident that [Congress] would not have enacted those provisions which are within its power, independently of [those] which are not.”[23]

III. Analysis

What this Court ruling crafted was a key to the federal government’s shackles on the states, granting states the freedom to capitalize on the surge of betting revenue generated throughout the country. After the gavel struck the block, New Jersey and Delaware prepared to pass new legislation, and numerous other states commenced conversations concerning the issue.[24]

The reactions to this ruling varied. A large portion of states have jumped at the opportunity to raise revenue, while sports leagues have made moves to maintain control over their sport. In recent moves, certain sports leagues have adopted the old “if you can’t beat them…” mantra by attempting to secure a piece of the sports betting market for themselves. The National Basketball Association (“NBA”) has bid to secure a 1% cut, called an “integrity fee,” of every bet made on a game organized by the League.[25] The NBA supported their request by claiming that “as intellectual property creators, [their] games serve as the foundation for legalized sports betting, providing casinos the ability to earn revenue off [their] games, while [they] bear all of the risk that accompanies sports betting and will incur additional expenses to expand [their] existing compliance and enforcement programs.”[26] States have taken opposition to this stance, responding that they can coordinate better between each other, which will protect the amount of revenue flowing directly to the states, and not exploit states that do not have a professional sports team contributing to their economies.[27]

The National Football League (“NFL”) has also attempted to enter the market by “requesting that the states grant them exclusive control of game and player data, which state licensed sportsbooks would then be required to purchase from the leagues for its operations.”[28] Along with the request of the NBA, states have been quick to push back. 

Both sides of the argument have merit. The various professional leagues offer a product; therefore, it is not a far reach for those leagues to ask for a slice in the pie created by that product. Yet sports betting benefits these leagues in a way that might not show up on its own row in the financial statements. Attendance and viewership of sporting events have been consistently decreasing through the years.[29] An argument for the pro-sports betting camp follows the logic that when persons bet on a game, they will watch the game.[30] Therefore, when these states open up an arena for betting participation, the bottom line of the leagues are, in theory, positively affected.

Does this mean that states can occupy the sports betting space and do as they please? Absolutely not. The Murphy Court outlined the avenues that Congress has to limit the freedom of the states’ decision making. Looking into the future, Congress could enact federal regulations successfully by “(1) incentiviz[ing] states to adopt federal policies, or (2) prohibit[ing] certain conduct directly.”[31] Congress could also create a “baseline rule” and require the states to “either adopt that rule or another of their own choosing.”[32]

If Congress were to travel the avenue of regulating the private actors directly, a question arises of how the legislation would evade the grasp of the anticommandeering doctrine. It is a fact that multiple states have legalized sports gambling. Congress embedded in PASPA an exception for these states. If Congress were to push through an Act that was pointed towards private actors with the grandfather provisions for those states, would it successfully leave the anticommandeering doctrine undisturbed? One could argue that, in effect, it still forces states to prohibit sports gambling. Would the Court push the boundaries of the doctrine that far? To secure the sovereignty of the States, the doctrine should be extended when the federal government attempts to chain the States by influencing the people that operate within the State’s jurisdiction. When grey areas enter an argument regarding federalism, the Court should turn to the text of the Constitution and limit the Federal Government to the powers that are explicitly written. The Tenth Amendment has given the rest to the States, and that fact should guide our decisions. 

IV. Conclusion

Abiding by the Constitution of the United States, the Court came to the right decision. If the people of the states agree to take certain actions within their domain, the Federal Government should not be able to subdue their actions when it is not within their prescribed powers. In the future, the Court should also be vigilant of Congress and the lobbying professional leagues to ensure the federalist balance is not upset.  


[1]Murphy v. NCAA, 138 S. Ct. 1461 (2018).

[2]Id. at 1470.

[3]Id. at 1468-69.

[4]Id. at 1470-71.

[5]Id. at 1471.

[6]Id.

[7]Id.

[8]Id.

[9]Id.

[10]Id.

[11]Id.

[12]Professional and Amateur Sports Protection Act (PASPA) of 1992, Pub. L. No. 102-559, 28 U. S. C. §3702(1) (1992), invalidated by Murphy, 138 S. Ct. at 1461.

[13]Murphy, 138 S. Ct. at 1473.

[14]New York v. United States, 505 U.S. 144 (1992).

[15]Printz v. United States, 521 U.S. 898 (1997). 

[16]Murphy, 138 S. Ct. at 1475. 

[17]Id.

[18]Id. at 1477. 

[19]Id

[20]Id.

[21]Id.

[22]Id. at 1481.

[23]Id. at 1482.

[24]John Wolohan, The potential impact of the Murphy v. NCAA decision on sports betting in the United States, LawInSport (May 31, 2018), https://www.lawinsport.com/content/article/item/the-potential-impact-of-the-murphy-v-ncaa-decision-on-sports-betting-in-the-united-states.

[25]Id.

[26]Id.

[27]Id.

[28]Id.

[29]Id.

[30]Id.

[31]Cory Lapin, The Potentially Far-Reaching Implications of Murphy v. NCAA Outside of Sports Betting, Defense Litigation Insider (May 30, 2018), https://www.defenselitigationinsider.com/2018/05/30/the-potentially-far-reaching-implications-of-murphy-v-ncaa-outside-of-sports-betting/ (citing Murphy, 2018 U.S. 2805 at *31-34).

[32]Sam Kamin, Murphy v. NCAA: It’s about much more than gambling on sports, The Hill (May 15, 2018), https://www. Thehill.com/opinion/judiciary/387653-murphy-v-ncaa-its-about-much-more-than-gambilng-on-sports.

2020 Presidential Campaign: The Revived Plan to Pack the Court

“Atop the front steps”by bobosh_t is licensed under CC BY-SA 2.0

John Simon, Blog Editor, University of Cincinnati Law Review

I. Introduction

With the 2020 presidential campaign in full swing, Americans have had the opportunity to view the Democratic contenders debate the issues on multiple occasions. While the candidates have addressed issues pertaining to healthcare, college education, and the environment, one key issue remains murky: the state of the Supreme Court and a possible attempt to reset the scales by packing the most powerful court in the United States. 

In May of 2019, Senate Majority Leader Mitch McConnell, while speaking at a Chamber of Commerce luncheon in Paducah, Kentucky, remarked that if a Supreme Court seat opened up in 2020, prior to the potential election of a Democratic President, the seat would be filled.[1] McConnell noted that, while government action is generally reversible, appointments to the federal judiciary are not: “What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law…[t]hat’s the most important thing we’ve done in the country, which cannot be undone.”[2] These comments come three years after Senator McConnell blocked President Obama’s attempt to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia.[3]

With both McConnell’s comments and a string of recent anti-abortion legislation being passed at the state level, various Democrats naturally have taken issue with who sits on the bench.[4] This article will focus on the concept of court packing, its significance in United States history, and the plan presented by various Democratic candidates on the campaign trail. 

II. Court Packing in U.S. History

While several accounts of the showdown between President Franklin Roosevelt and the Supreme Court of the United States exist—coined the “switch in time that saved nine”—the most popular begins with the election of Franklin Roosevelt in 1932.[5] At that time, the Great Depression continued to debilitate the United States’ economy through crippling deflation, high unemployment rates, and low GDP.[6] Roosevelt promised the American people a “new deal” transformation of the traditional “laissez faire” political philosophy ascribed to by the American government into a system focused on a government-regulated economy.[7] Roosevelt’s “New Deal” sought to reverse the detrimental effects of the Great Depression. As Roosevelt took office in 1933, his New Deal became the focus for his administration. A significant portion of the New Deal was enacted within three months from Roosevelt’s inaugural day in office.[8] The plan initially focused on providing temporary aid to the unemployed while also revitalizing business and agricultural communities.[9] However, by 1935, nearing the reelection campaign, momentum stalled as the four conservative majority—known to Roosevelt as the “Four Horsemen”—gained the necessary swing vote from Justice Owen Roberts to overturn “New Deal” legislation.[10]

Over the next year, leading up to the 1936 election, the Supreme Court, on multiple occasions, overturned such federal legislative acts and programs like the Agricultural Adjustment Act and the National Recovery Administration.[11] In its final action of the 1936 term, the Supreme Court overturned a New York law that provided minimum wage to women and children.[12]

In 1936, Roosevelt won his second election by a landslide.[13] However, his victory was overshadowed by the fear that the Supreme Court would continue to undo legislative acts in furtherance of the New Deal.[14] Recognizing that the Court stood as the final obstacle preventing the passage of additional New Deal legislation, Roosevelt recognized that a direct confrontation was necessary.[15] At the same time, the public viewed the Supreme Court as an untouchable body; Roosevelt had to be cautious.[16] Following the election, Roosevelt and his Attorney General Homer Cummings drafted the final version of the plan to change the composition of the Supreme Court of the United States.[17]

In February 1937, Roosevelt finally unveiled his plan by proposing to Congress that he be permitted to appoint an additional justice to the Supreme Court for each member of the Court over the age of 70 who did not retire.[18] Additionally, the plan called for additional lower court judges to be appointed.[19] Roosevelt justified his plan by noting that a lack of judges had backlogged the judicial system.[20] Roosevelt also relied on the issue of capacity, stating that  “age or infirm judges” attributed to the problem, recognizing that while it was a delicate subject, it still merited dialogue.[21]

While the country split evenly on the constitutional issue of whether Roosevelt could add justices to the Supreme Court, the matter seemingly resolved itself. In several decisions following Roosevelt’s proposal, the Supreme Court reversed course, voting 5-4 to find constitutional a state minimum wage law and the Social Security Act.[22] Both swing votes—Chief Justice Hughes and Justice Roberts—sided with the liberal minority.[23] With the majority now in favor of New Deal policies, Roosevelt could continue his agenda.[24] Further, and more important, the proposed plan to pack the Supreme Court of the United States was not pursued as the issue had become moot.[25]

III. Amending the Supreme Court Today

Several Democratic candidates have pitched the idea of reforming the Supreme Court. For instance, hopeful Pete Buttigieg, mayor of South Bend, Indiana, believes that five additional members should be added to the Court.[26] In his opinion, the Court should be composed of five Republicans, five Democrats, and five members jointly selected by the sitting members of the Court.[27] Former Representative Beto O’Rourke stated that justices should be afforded 18-year term limits.[28] Senator Kamala Harris remarked that she would be open to the idea of adding justices to the Supreme Court, stating that “[t]he most critical issues of our lifetimes, before and in the future…will be decided by that United States Supreme Court.”[29]

Left-wing groups and scholars also strongly support Supreme Court reform. For instance, Pack the Court, a liberal group which supports the addition of justices to the bench, has launched an aggressive campaign to catch the attention of Democratic candidates.[30] Brian Fallon, director of Demand Justice, hopes to make the courts a key point in the 2020 election.[31] Specifically, he has urged the candidates to support the notion of setting term limits for justices.[32]

At the same time, the court packing plan being kicked around has been met with opposition, most notably from current Justice Ruth Bader Ginsburg.[33] She told NPR that nine was a good number and that she thought “it was a bad idea when President Franklin Roosevelt tried to pack the court.”[34] Justice Ginsburg added that the Constitution prescribes lifetime appointments for federal judges and that the Constitution cannot be easily amended.[35] Thus, the proposals put forward by Democratic candidates, in her opinion, remain unrealistic.

IV. Conclusion

With the Supreme Court growing more conservative and the current balance of power sitting 5-4 in favor of the conservative coalition, members of the Democratic Party have found it necessary to discuss ways of balancing the scales. With the 2020 election on the horizon, Democratic candidates have spoken publicly regarding measures that can be taken to reform the Court. While it’s unclear how court reforms may evolve in the future, the controversial issue will certainly be a point of concern as the campaign heats up.


[1]Ted Barrett, In reversal from 2016, McConnell says he would fill a potential Supreme Court vacancy in 2020, CNN (May 29, 2019), https://www.cnn.com/2019/05/28/politics/mitch-mcconnell-supreme-court-2020/index.html.

[2]Id.

[3]Joan Biskupic, Democrats look at packing the Supreme Court to pack the vote, CNN (May 31, 2019), https://www.cnn.com/2019/05/31/politics/democrats-supreme-court-packing-politics/index.html.

[4]Id.

[5]See Daniel E. Ho & Kevin M. Quinn, Did A Switch in Time Save Nine?, Journal of Legal Analysis (2010), https://law.stanford.edu/wp-content/uploads/sites/default/files/publication/259285/doc/slspublic/85.pdf (noting that the popular account of the story revolves around conflict between President Franklin Roosevelt and the Supreme Court whereby President Roosevelt threatened to reform the Supreme Court so that his “New Deal” policies would not be overturned. Yet an analysis of the decisions that “saved nine” shows that Justice Roberts voted consistent with his prior positions).

[6]Richard H. Pells & Christina D. Romer, Great Depression, Encyclopedia Britannica (Jul. 12, 2019), https://www.britannica.com/event/Great-Depression.

[7]New Deal, Encyclopedia Britannica (Jul. 4, 2019), https://www.britannica.com/event/New-Deal.

[8]William E. Leuchtenberg, When Franklin Roosevelt Clashed with the Supreme Court—and Lost, Smithsonian Magazine (May 2005), https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]Id.

[17]Id.

[18]Id.

[19]Id.

[20]Id.

[21]Id.

[22]Id.see also West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see also Helvering v Davis301 U.S. 619 (1937).

[23]Id.

[24]Id.

[25]Id.

[26]Richard Wolf, Liberal groups seek to make Supreme Court an issue in 2020 presidential race, and conservatives exult, USA Today(Jul. 28, 2019), https://www.usatoday.com/story/news/politics/elections/2019/07/28/pack-court-liberals-conservatives-fight-over-supreme-court-size/1821303001/.

[27]Id.

[28]Id.

[29]Biskupic, supra note3.

[30]Philip Elliott, The Next Big Idea in the Democratic Primary: Expanding the Supreme Court?, Time Magazine (Mar. 13, 2019), https://time.com/5550325/democrats-court-packing/.

[31]Wolf, supra note26.

[32]Id.

[33]Nina Totenberg, Justice Ginsburg: ‘I Am Very Much Alive’, NPR (Jul. 24, 2019), https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive.

[34]Id.

[35]Id.

Michigan v. Frederick: A Chance to Clarify Law Enforcement’s Knock-and-Talk Procedures

“Doors in the interior” by Dmitry Grigoriev is licensed under CC BY-NC-ND 4.0

John Simon, Blog Editor, University of Cincinnati Law Review

I. Introduction

In recent history, the Supreme Court has averaged 7,000-8,000 new petitions annually.[1] Of those new cases filed, approximately 80 receive plenary review with oral arguments heard before the Court. [2] On June 3, 2019, the State of Michigan submitted a petition for a writ of certiorari to have a Fourth Amendment case heard by the Justices.[3] The case of Michigan v. Frederick, which has an extensive legal history stretching back to 2012, asks the Court to clarify the limits that apply to law enforcement’s use of knock-and-talk procedures when attempting to conduct a warrantless search.[4] This article examines Supreme Court precedent regarding knock-and-talk procedures, Michigan’s disputed case, and the constitutional implications which might stem from the Supreme Court’s decision to grant or deny cert.

II. Background

While not directly on point with the issue of knock-and-talk procedures, the Supreme Court provided a glimpse into the Fourth Amendment analysis that shapes such encounters in Kentucky v. King.[5] In that case, police officers set up a controlled purchase of crack-cocaine outside an apartment complex in Lexington, Kentucky.[6] An officer observed the drug transaction and immediately radioed to other officers to move in on the suspect who was walking inside.[7] Just before officers arrived, the suspect went into an apartment. The officers then heard a door shut, but were uncertain which unit the suspect entered.[8] Smelling marijuana coming from one of the apartments, the police decided to approach that door.[9] They knocked on the door and announced to the occupants that it was the police.[10] Hearing rustling and movement on the inside, the officers believed that drug evidence was being destroyed.[11] At that point, they kicked in the door and found three occupants with marijuana and cocaine.[12]

King, one of the occupants, challenged his charges based on an alleged Fourth Amendment violation.[13] The case made its way to the Supreme Court after the Kentucky Supreme Court held that the police created an exigency prior to entering the apartment in violation of the Fourth Amendment.[14]

The Supreme Court ultimately reversed, finding that the police had not created an exigency or threatened to violate the Fourth Amendment prior to entering the apartment.[15] While the decision rested upon the exigent circumstance exception to the Fourth Amendment, the Court seemingly found support for the premise that the police did not create an exigency by looking at the implied license theory. The Court noted that when law enforcement officers knock on a door without a warrant, they are acting within the bounds of normal, private citizens; as such, the occupant has no obligation to open his door or to talk.[16] The Court further wrote that the choice to open the door and speak to police does not require occupants to let the police in, and that the occupants still have the freedom to refuse to answer questions at any time.[17]

Two years after the King case, the Court yet again invoked the implied license theory approving the law enforcement’s use of knock-and-talk procedures.[18] In Florida v. Jardines, police received an unverified tip that Jardines was growing marijuana inside his home.[19] A month later, police drove to Jardines’ home to investigate.[20] Upon seeing no cars in the driveway and the blinds drawn, police approached the home with a drug-sniffing dog.[21] The dog immediately picked up the scent which led officers to apply for a search warrant. Officers executed the search warrant a day later and discovered marijuana.[22]

At trial, Jardines moved to suppress the drug evidence on the basis of a Fourth Amendment search violation.[23] The case worked its way to the Florida Supreme Court, which granted the motion, finding that the use of the drug-sniffing dog constituted a search in violation of the Fourth Amendment.[24]

On appeal to the Supreme Court, Justice Scalia, writing for the majority, held that while the police have an implied license to approach a home, knock on the door, and engage in a conversation with the home’s occupant, using drug-sniffing dogs exceeded the scope of the implied license.[25] As Justice Scalia wrote: “We have…recognized that ‘the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.’”[26] Justice Scalia explained that knocking on the door is a common-sense occurrence, one that has been “managed without incident by the Nation’s Girl Scotus and trick-or-treaters.”[27] Effectively, law enforcement has the authority to act as any ordinary citizen would in approaching someone’s front door. Such actions do not constitute a trespass. However, the introduction of a trained drug-sniffing dog changes the situation entirely and is no longer comparable to the ordinary door-knocker – as Justice Scalia noted, merely hanging a door knocker does not qualify as an invitation for drug-sniffing dogs.[28]

Therefore, the Court affirmed the decision of the Florida Supreme Court finding that law enforcement, despite maintaining an implied license to enter someone’s property, exceeded the implied license by engaging in activities that the ordinary citizen would not while on someone’s property.[29]

III. Michigan v. Frederick[30]

Michigan v. Frederick presents a fairly straightforward timeline. In March 2014, officers with Michigan’s Kent Area Narcotics Enforcement Team (“KANET”) received a tip during an investigation that corrections officers in the Kent County Sheriff Department were purchasing “marijuana butter.”[31] The tip named Michael Frederick and Todd Van Doorne as corrections officers purchasing the marijuana butter.[32]

Hours after receiving the tip, at approximately 4:00 a.m., seven KANET officers, equipped with tactical vests and handguns, arrived at Frederick’s home.[33] Four officers approached the front door and knocked.[34] Within minutes, Frederick answered the knocks at which time the KANET officers informed Frederick of the pending criminal investigation and asked to enter his home.[35]The KANET officers asked Frederick for consent to search his home, which Frederick granted.[36] During the search, the KANET officers recovered the marijuana butter.[37]

At approximately 5:30 that same morning, the KANET officers arrived at Van Doorne’s home.[38] Four officers approached the side door and knocked.[39] Van Doorne, recognizing some members of the KANET team, opened the door and greeted the officers.[40] The KANET officers explained the purpose for their visit.[41] Van Doorne, thinking that he could clear the matter quickly by providing his medical marijuana card, invited the officers into his home.[42] Van Doorne consented to a search of his home which also revealed his marijuana butter.[43]

Frederick and Van Doorne were suspended from the Kent County Sheriff Department and were each charged with various drug offenses.[44] Both filed motions to suppress the evidence found during KANET’s searches arguing that consent was involuntarily obtained and that the knock-and-talk procedures violated the Fourth Amendment.[45] The trial court denied the motions finding the consent to be voluntarily given and that the knock-and-talk procedures did not implicate the Fourth Amendment’s protections.[46]

The Michigan Court of Appeals denied the defendants’ separately filed applications for leave to appeal.[47] The Supreme Court of Michigan remanded the cases to the appellate court for consideration of the Fourth Amendment issues under the Supreme Court decision in Jardines v. Florida.[48]

The Michigan Court of Appeals, on remand, was asked to “consider only whether the knock-and-talk procedures conducted in these cases were consistent with the Fourth Amendment as articulated in Jardines.”[49] Relying on federal precedent, the Michigan Court of Appeals affirmed the trial court’s decision holding that case law approves of law enforcement’s use of knock-and-talk procedures under the framework of an implied license to enter an individual’s property.[50] The court acknowledged the confines of the implied license, noting that such a license permits an individual to approach the home by a front path, knock on the door, and wait briefly for a response before leaving.[51] The Michigan Court of Appeals stated that a Fourth Amendment violation requires circumstances that “transform” a lawful entrance into a warrantless search.[52] Interpreting Jardines, the Michigan Court of Appeals found that police do not commit Fourth Amendment violations by simply approaching a home and asking to speak with the person who lives there. But, the court continued, there is a violation when the police enter that home not with the intent to speak to the occupant, but with the sole intent to conduct a search.[53]

Ultimately, the Michigan Court of Appeals affirmed the trial court’s decision to deny the motions to suppress, distinguishing the case from the facts presented in Jardines.[54] The court found that “[i]n each instance, officers approached the home, knocked, and waited to be received. And in each instance, the officers were received by the homeowners.”[55] Nothing in the record reflected the KANET unit’s intention to use the knock-and-talk as a smokescreen to conduct the search. Rather, the facts conveyed the officers’ intention to speak with the occupants of each home to ascertain information that would aid in the investigation.[56]

On appeal to the Michigan Supreme Court, the consolidated cases were remanded to the trial court with instructions to treat the knock-and-talks as illegal searches but for further examination of each appellant’s consent.[57] The Michigan Supreme Court, relying on precedent from the Supreme Court, found that knock-and-talk procedures do not implicate the Fourth Amendment when conducted in the proper scope.[58] However, police conduct outside of an implied license constitutes a trespass.[59] Trespass alone is insufficient to constitute a search in violation of the Fourth Amendment, but trespass in conjunction with conduct evincing information-gathering behavior constitutes an illegal search.[60]

Applying caselaw to the consolidated cases, the Michigan Supreme Court found that the KANET unit’s conduct constituted a Fourth Amendment violation.[61] The court was unwilling to extend the implied scope of the license to “predawn approaches” and held that the police were trespassing.[62] The KANET unit exceeded the scope of the implied license by entering constitutionally protected areas at unjustifiable times of the day.[63] However, as the court noted, trespass alone does not violate the Fourth Amendment; law enforcement must also seek information while trespassing. Regarding this prong of the analysis, the Michigan Supreme Court stated: “The KANET officers were not simply cutting across the defendants’ lawns as a shortcut, stopping by to drop off a get-well-soon basket…The officers approached each house to obtain information about the marijuana butter they suspected each defendant possessed.”[64] Thus, the KANET unit violated the Fourth Amendment’s protections against unreasonable searches.[65]

The Michigan Supreme Court remanded the case to the trial court to determine whether the consent provided after the search was attenuated from the illegality.[66] At the time of this article, the trial court on remand has granted the motions to suppress, ultimately preventing the prosecution from proceeding with trials against the defendants.[67] The cases are now pending before the Supreme Court.

IV. Legal Positions

The State of Michigan’s petition sequentially outlines the following questions: (1) whether the Fourth Amendment applies to knock-and-talk procedures; (2) whether the Michigan Supreme Court correctly determined that pre-dawn visits constitute trespass, exceeding the scope of an implied license; and (3) whether a trespass coupled with the intent to gather information constitutes a search under the Fourth Amendment.[68]

The petition argues that Supreme Court precedent expressly permits consensual encounters between law enforcement and citizens. Knock-and-talk procedures fall squarely within consensual encounters because law enforcement is acting as any other private citizen might act.[69]

Although the petition acknowledges that Supreme Court precedent has upheld knock-and-talk procedures, the thrust of the argument is that courts are unclear as to the limits, if any, on knock-and-talk procedures.[70] Specifically, after the Jardines decision was published, federal and state courts have had difficulty determining how to analyze the implied license that permits knock-and-talk encounters.[71] Regarding Justice Scalia’s quip regarding the Girl Scouts, the petition notes: “Some courts have seized upon this dicta to find a Fourth Amendment violation where police operate outside of the framework of what a Girl Scout might do.”[72] For instance, the Ninth Circuit found a Fourth Amendment violation when police approached a suspect’s home at 4:00 a.m. with the intent to arrest the suspect—an action that the ordinary person would not willingly accept.[73] On the other hand, the Tenth Circuit found that Jardines left knock-and-talk procedures undisturbed.[74]

While the State of Michigan ultimately asks the Supreme Court to issue a ruling clarifying whether Jardines in fact changed knock-and-talk protocol, the petition also explicitly requests the Court to approve of pre-dawn knock-and-talks. The petition states:

Petitioner submits that the implied license is not inherently violated by a predawn visit. While perhaps not desired, a person might approach a home for assistance at 4 am if that person had car trouble and did not have a working cell phone, for instance. Such a person should not be found liable in tort for trespass nor would the person generally be subject to criminal prosecution for trespass.[75]

According to the State of Michigan, the situation described above should be viewed similarly to law enforcement acting quickly to investigate a tip.[76]

Alternatively, the State of Michigan is arguing that if such a time constraint is imposed upon law enforcement’s knock-and-talk procedures, then acquiring consent precludes any consideration of the knock-and-talk as a search.[77] The petition notes that to find otherwise would significantly depart from precedent that police are able to ask for consent to speak to someone, or to search their home; asking to search a home is different, the State emphasized, from actually looking in the home.[78] The State of Michigan indicated that the Supreme Court has traditionally followed the objective standard whereby the evaluation of a knock-and-talk case centered on whether the officer went to a door, knocked, waited for the occupant to answer the door, and talked to that occupant.[79] In that scenario, there is no search.

In response to the State of Michigan’s brief, Frederick primarily focused on the State of Michigan’s apparent dislike for the Jardines decision as well as the lack of case law supporting the State of Michigan’s interpretation of Jardines. Frederick argued that the State decision had not even created a split between circuits or the highest state courts.[80]

Among those cases cited by the State of Michigan, Frederick points out each court ultimately found that law enforcement has an implied license to enter a person’s property.[82] However, none of those courts explicitly approved of 4:00 a.m. visits.[83] Because the State of Michigan did not provide sufficient support for its position that the implied license to enter one’s property extends to pre-dawn visits, Frederick asked the Court to deny the petition for certiorari.[84]

V. Future

With the State of Michigan’s petition being filed in early July, it remains unclear whether the Supreme Court will grant certiorari. Under Jardines, the Court confirmed that law enforcement may use knock-and-talk procedures. However, knock-and-talk procedures must be used within the confines of an implied license—such as is provided to any person whose trade requires entrance onto another’s property.

The present case attempts to widen the scope of the implied license to provide law enforcement with greater latitude in conducting a knock-and-talk by virtue of being able to go to someone’s door in the middle of the night. To the contrary, Jardines addressed whether the implied license was exceeded through the use of a drug-sniffing dog on someone’s premises. When the Court published the Jardines decision, the Court split 5-4 finding that such an activity exceeded the implied license and constituted a search in violation of the Fourth Amendment.[85] The five Justice majority consisted of Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan.[86] The four Justice minority was composed of Justices Roberts, Kennedy, Alito, and Breyer.[87] Since that decision, Justice Scalia has passed, and Justice Kennedy has retired, opening the door to Justices Gorsuch and Kavanaugh playing significant roles in the overall outcome of the case.[88]


[1] The Justices’ Caseload, Supreme Court of the United States (July 10, 2019), https://www.supremecourt.gov/about/justicecaseload.aspx.

[2] Id.

[3] Aurora Barnes, Petitions of the week, SCOTUSblog (July 3rd, 2019), https://www.scotusblog.com/2019/07/petitions-of-the-week-51/.

[4] Id., quoting

[5] Kentucky v. King, 563 U.S. 452 (2011).

[6] Id. at 455 (2011).

[7] Id. at 456.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 456-457.

[13] Id. at 457.

[14] Id. at 458.

[15] Id. at 472.

[16] Id. at 469.

[17] Id. at 470.

[18] Florida v. Jardines, 569 U.S. 1 (2013)

[19] Id. At 3.

[20] Id.

[21] Id.

[22] Id. at 4.

[23] Id. at 4-5.

[24] Id.

[25] Id. at 8.

[26] Id.

[27] Id.

[28] Id. at 9

[29] Id.

[30]

[31] People v. Frederick, 886 N.W.2d 1, 3 (Mich. App. 2015).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 4.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id. at 5.

[50] Id.

[51] Id. at 6 (citing Florida v. Jardines, 569 U.S. 1, 7 (2013)).

[52] Id. at 7.

[53] Id. at 9.

[54] Id. at 15.

[55] Id. at 7.

[56] Id. at 12.

[57] People v. Frederick, 895 N.W.2d 541, 542 (2017).

[58] Id. at 544.

[59] Id. at 545.

[60] Id.

[61] Id. at 546-547.

[62] Id. at 547.

[63] Id.

[64] Id.

[65] Id. at 548.

[66] Id. at 549.

[67] Petition for Writ of Certiorari at 8, People v. Frederick (Jun. 3, 2019).

[68] Id. at 1-2.

[69] Id. at 9-10.

[70] Id.

[71] Id. at 11.

[72] Id.

[73] Id. at 12 (citing United States v Lundin, 817 F3d 1151, 1159 (CA 9, 2016)).

[74] Id. (citing United States v Carloss, 818 F3d 988, 993 (CA 10, 2016)).

[75] Id. at 15.

[76] Id.

[77] Id. at 16.

[78] Id. “Asking if one may look in someone’s home is not the same as the person actually looking in the home.”

[79] Id. at 21.

[80] Respondents’ Brief in Opposition at 2, People v. Frederick, No. 18-1513 (Jun. 25, 2019).

[81] Id. at 3. “Petitioner has not even attempted to demonstrate how that Michigan Supreme Court decision created or exacerbated a split among the circuits or state courts of last resort.”

[82] Id. at 3-4 (citing, e.g., United States v. Carloss, 818 F.3d 988, 994-95 (10th Cir. 2016), United States v. Walker, 799 F.3d 1361 (11th Cir. 2015)).

[83] Id.

[84] Id. at 4-5.

[85] See, 569 U.S. 1 (2013).

[86] Id.

[87] Id.

[88] See, Sophie J. Hart & Dennis M. Martin, Judge Gorsuch and the Fourth Amendment, SLR (Mar. 2017), https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/ (noting that Judge Gorsuch, while a Court of Appeals Judge with the Tenth Circuit, dissented in the Carloss case writing that “No Trespassing” signs on a person’s property remove law enforcement’s implied license)

Knick v. Township of Scott: Supreme Court Overrules Precedent.

“Farm”by Digitalnative is licensed under CC BY-NC-ND 2.0

Kyle Greene, Blog Editor, University of Cincinnati Law Review

In a recent 5-4 decision, the Supreme Court overruled precedent, now allowing property owners to immediately bring a Takings Clause federal claim when their state government takes control of their property without just compensation.[1] The right exists regardless of whether a state procedure to apply for compensation is in place, or whether the state promises to pay sometime in the future.[2] This Article will explain the Court’s majority reasoning in Knick v. Township of Scott and why it decided to overrule the previously controlling case of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson. It will further describe the dissent’s concerns in the majority’s reasoning, and finally, conclude that while the majority’s decision alleviates some problems with Williamson, it also potentially subjects federal courts to have to analyze complex state law issues which they may not be best suited to handle.

I. The Overruled Precedent: William County Regional Planning Comm’n v. Hamilton Bank of Johnson City

In Williamson County, a property developer brought suit in federal court against a zoning board that rejected the developer’s proposal for a new subdivision, alleging Fifth Amendment Takings Clause violations.[3] The Supreme Court decided the developer’s case was not yet ripe for review in a federal court because (1) the developer still had an opportunity to seek variance from an appeals board, so the taking was not yet final, and (2) the developer did not have a federal takings claim because he had not sought compensation “through the procedures the State had provided for doing so.”[4] The Court reasoned that when a State provides adequate procedures for seeking compensation, the property owner cannot claim a violation of the Taking Clauses until its exhausts those procedures and is denied. Thus, a Takings Clause violation does not exist untill the state procedure for compensation denies the property owner of compensation.[5]

Under the Williamson County rule of law, the Supreme Court decided San Remo Hotel, L. P. v. City and County of San Francisco.[6] In San Remo, the plaintiffs brought their Takings Clause claim in state court as required by Williamson County.[7] However, when the plaintiff’s claim for compensation was denied, they were unable to later bring their Fifth Amendment claim to federal court.[8] The Court reasoned that the Full Faith and Credit Statute required the federal court to give preclusive effect to the state court’s decision, blocking any subsequent consideration of whether the plaintiff suffered a taking within the meaning of the Fifth Amendment.[9] Therefore, under Williamson County’s state litigation requirement, a plaintiff alleging a Takings Clause violation must first bring their claim through state procedures, but if they lose, then under San Remo they will be barred from bringing a federal claim because of the obligations under the Full Faith and Credit Statute.

II. The Supreme Court’s Answer: Knick v. Township of Scott

The Supreme Court recently sought to relegate the problems with Williamson in its June 2019 decision in Knick v. Township of Scott.[10] A woman had a family graveyard near the back of her 90 acre plot of land, as is fairly customary in Pennsylvania.[11] Scott Township passed an ordinance that “all cemeteries . . . be kept open and accessible to the general public during daylight hours.”[12] The Township had the authority to enter any property to determine the existence and location of cemeteries to enforce their ordinance.[13] The Township utilized their authority and found the small graveyard in Knick’s backyard. They notified her that she was violating the ordinance by failing to open it to the public and notified her of the violation. [14]In response, Knick sought declaratory and injunctive relief in state court, alleging that the ordinance effectively operates as a taking of her property.[15] The Township then withdrew its violation and stayed enforcement until after the state proceedings.[16] However, by doing so, the state court declined to rule on the claim because as long as the Township wasn’t enforcing the ordinance, she could not demonstrate irreparable harm for equitable relief. Knick, determined for relief on the issue, next brought her claim in federal court alleging the ordinance violated the Takings Clause of the Fifth Amendment. [17] The Third Circuit followed Williamson County and dismissed her claim because she had not exhausted state proceedings in the form of an inverse condemnation claim.[18]

The Supreme Court saw Knick’s claim and its lengthy backstory as an opportunity to rectify the perceived problems with Williamson County. The Court pointed out the oddity that the Williamson County and San Remo cases caused by requiring plaintiffs to first exhaust a state court proceeding for compensation, but then subsequently being barred under the Full Faith and Credit Statute from winning their federal claim.[19] The Supreme Court declared this development to be unworkable in current jurisprudence and found the state litigation requirement null and void.

The Supreme Court also reiterated that the “Fifth Amendment right to full compensation arises at the time of taking, regardless of post-taking remedies that may be available to the property owner.”[20] The Court explained that the Fifth Amendment violation occurs as soon the government takes their property without paying for it.[21] Even if the government promises a later payment or remedies the violation in a state proceeding, the violation still occurred. The Court analogized the Williamson County theory to that of a bank robber: “A bank robber might give the loot back, but he still robbed the bank.”[22] Therefore, the Williamson County logic that a violation does not occur untill the plaintiff exhausts state proceedings and is still left without compensation is untenable.[23] Instead, the Court decreed “because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking,” the property owner can bring a federal suit immediately after the taking regardless of any promised payment or available state procedures.[24] Thus, the government infringed on Knick’s Fifth Amendment rights when they first enforced the ordinance, and that violation exists whether or not they later decided to stay their enforcement.[25]

III. The Dissent

Justice Kagan took issue with the Majority overruling Williamson County as it, in effect, rejects a line of cases going back to the late 1800s.[26] Justice Kagan also challenged the majority decision reasoning that a promise of contemporaneous payment still results in taking under the Fifth Amendment, citing a long history of cases that allowed future payment for taken property.[27]

Most interestingly, Justice Kagan’s dissent explores the practical effect of the Majority’s decision. The dissent explains that “today’s decision means that government regulators will often have no way to avoid violating the Constitution.”[28] Because there are a lot of different ways that a regulation could affect property interests, the government will never know when it is violating the Fifth Amendment.[29] A government actor can never know when their actions will result in a taking because there is no set formula for determining whether a government action is a taking.[30]

Lastly, Justice Kagan explains that the Majority’s new rule will result in federal courts potentially dealing with an influx of cases that can more effectively be dealt with in state court. Now, federal courts will be forced to make rulings on complex and perhaps minute state laws (e.g. Pennsylvania’s graveyard law) to determine if the regulation is a taking.[31] The dissent reasons that this type of state law interpretation is better suited for state courts.[32]

IV. Conclusion

While the Knick majority ruling took on to correct what they saw as an unworkable set of cases in Williamson County and San Remo, they may have caused more problems than they solved. Plaintiffs will rejoice in now having multiple avenues for relief to choose from. Moreover, they will have an easier time winning those claims as Knick made clear a violation occurs and must be remedied as soon as the taking occurs whether or not they are promised compensation in the future. However, the dissent makes sounder practical points. Governments will be walking on eggshells every time they carry out an ordinance that in any way relates to private property interests with no way of determining if it amounts to a taking. The dissent is likely correct in noting that many of these issues are better suited for state court. It is unlikely that a federal court would know more about an obscure graveyard ordinance than the local state court whose judges dealt with it for a number of years. Federal court judges should get out the statute books and brush up on the various odd state property laws of their jurisdiction because they’ll be seeing a lot more of it after the ruling in Knick.


[1]Knick v. Township of Scott, No. 17-647, 2019 WL 2552486 (U.S. June 21, 2019).

[2]Id.at *7.

[3]William County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)

[4]Id.

[5]See id.

[6]San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323, 337-399, 125 S.Ct. 2491 (2005).

[7]Id.

[8]Id.

[9]Id.at 343-345.see also 28 U.S.C. § 1739.

[10]Knick v. Township of Scott, No. 17-647, 2019 WL 2552486 (U.S. June 21, 2019).

[11]Id.at *3.

[12]Id.

[13]Id.

[14]Id.at *4.

[15]Id.at *4.

[16]Id.

[17]Id.

[18]Id.(“inverse condemnation is a cause of action against a governmental defendant to recover the value of the property which has been taken in fact by the government defendant.” United States v. Clarke, 445 U.S. 253,357).

[19]Id.at *12.

[20]Id.at *5. Citing Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26 (1933).

[21]Id.at *6 citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378.

[22]Id.at *7.

[23]Id.

[24]Id.

[25]Id.

[26]Id.at *14 (Justice Kagan dissenting)

[27]Id.

[28]Id.

[29]Id.citing Arkansas Games and Fish Comm’n v. United States, 568 U.S. 23, 31, 133 S.Ct. 511 (2012).

[30]Id.

[31]Id.at *19

[32]Id.

An End to Partisan Gerrymanders? The Way Forward Post-Rucho

Gerrymander by judy_and_ed is licensed under CC BY-NC 2.0.

Kyle Roat, Blog Editor, University of Cincinnati Law Review

The Elections Clause is fundamentally flawed.[1] It vests the power of managing elections in the state legislatures and gives responsibility for supervising those legislatures to Congress.[2] Although the Framers were not unaware of the danger posed by this arrangement, it could not have been apparent to them the danger that partisan control of elections would pose in the future.[3] The advent of instant communication and computer software capable of devising electoral maps to consistently produce a desired result has given partisan groups powerful new tools to preserve legislative power in the face of popular opposition.[4] Now, with the 5-4 decision finding partisan gerrymandering claims to be unreachable political questions in Rucho v. Common Cause, the door is closed on federal judicial intervention in electoral mapmaking for the foreseeable future.[5]

Along the way, the majority was sure to mention the numerous ways states have taken the matter into their own hands.[6] Florida amended its constitution to require fair districts, and in 2015 the Supreme Court of Florida struck down the State’s map.[7] Both Colorado and Michigan have amended their constitutions to create commissions responsible for redistricting.[8] But in this direction lies a trap the Court does not mention in its Ruchoopinion. 

The Elections Clause explicitly vests the power to set the manner of elections in the state legislatures and gives Congress the power to overturn those regulations.[9] By amending their respective constitutions to allow parties other than the legislature to draw their electoral maps, these states are inviting challenges that will ask federal courts to determine whether the responsibility of determining the place and size of districts must be solely within the power of the state legislature, which the Court so far seems to have assumed is the case.

If the Court eventually decides that only the state legislature may determine how to set the electoral map for its respective state (with the ghost of congressional oversight), then the popular efforts that have so far sought to restrain the evil of partisanship in shaping who we are permitted to vote for will have been for naught, as state legislatures will once again have the ability to draw maps that nakedly favor one party at the expense of the other.

The solution to this problem is simple, if formidable. The United States Constitution must be amended to permit the States themselves, rather than the state legislatures, to determine how elections are to be held. If the Constitution is not amended, the efforts of the states to ensure the effective function of democratic government may be overturned yet again by the Supreme Court, and elections will continue to be determined by the cleverness of partisan computers. In spite of the high bar to amending the Constitution, it is critical that an amendment be passed to ensure measures can be put in place to prevent the open and flagrant subversion of the popular will of the electorate.


[1]U.S. Const. art. I, §4, cl. 1.

[2]Id.

[3]Rucho v. Common Cause, 139 S.Ct. 2484, 2494-2495 (2019).

[4]Vann R. Newkirk II, How Redistricting Became A Technological Arms Race, The Atlantic (July 11, 2019 5:41 PM), https://www.theatlantic.com/politics/archive/2017/10/gerrymandering-technology-redmap-2020/543888/.

[5]See Rucho, 139 S.Ct. 2484 (2019).

[6]Id. at 2507-2508.

[7]Id. at 2507.

[8]Id. at 2507.

[9]U.S. Const. art. I, §4, cl 1.

Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, Continue reading “Justice Kennedy: To Swing or Not to Swing”

The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.

Conclusion

The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at http://www.scotusblog.com/case-files/cases/heffernan-v-paterson/.

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I