The U.S. Immigration System Survives on Executive Action but Needs Legislative Reform

Photo by Darren Halstead on Unsplash

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

President Biden emphasized during his campaign that immigration reform was a top priority of his Administration. On day one of his presidency, President Biden issued multiple executive orders addressing immigration and introduced a comprehensive immigration bill aimed at revamping and modernizing the U.S. immigration system.[1] The U.S. Citizenship Act of 2021 (“the bill”) was introduced to Congress on February 18, 2021, promising to modernize the country’s immigration system, keep families together, grow the economy, manage the border, and address the root causes of immigration.[2] Proponents of progressive immigration policy are excited and optimistic about the bill, but many, including several Democratic members of Congress, fear that the bill has no hope of passing both houses of Congress and becoming law.[3]

Part II of this article will provide a brief overview of the progression of modern U.S. immigration law and the executive actions taken by the three most recent U.S. presidents. Part III will describe the U.S. Citizenship Act of 2021. Part IV will discuss the challenges the bill faces, explain the dangers of an immigration system largely controlled by executive action, and discuss the need for new immigration legislation to effectively address the shortcomings of the U.S. immigration system and offer lasting change.

II. Background

A. Legislative History

Although immigration has been a part of U.S. law since 1790, the Immigration and Nationality Act of 1965 marked the beginning of a new era of immigration legislation. The Act replaced the national origins quota system with a seven-category preference system emphasizing family reunification and skilled immigrants.[4] In 1980, Congress passed the Refugee Act which created a general policy for admissions of refugees.[5] Congress later passed the Immigration Control and Reform Act in 1986, granting legal status to millions of unauthorized immigrants who satisfied certain conditions, and the Immigration Act of 1990, creating specific work visas and establishing the “Temporary Protected Status” (“TPS”)  program.”[6] Congress passed subsequent laws in 1996, 2002, and 2006 emphasizing border control, employment laws, and tightened admission eligibility in response to growing concerns about terrorism and unauthorized immigration.[7]

Since 2006, no comprehensive immigration bill has come close to becoming law.[8] In 2007, Republican President George W. Bush and Democratic Representative Nancy Pelosi drafted a comprehensive bipartisan immigration reform bill; however, the bill was never introduced for a vote.[9] In 2013, the Obama Administration’s bipartisan effort to pass immigration legislation also failed—the bill passed in the Senate but never came up for a vote in the House.[10] Finally, in 2018, three immigration bills were introduced to the House floor, and none of the bills passed in the House.[11]

B. Executive Action

Congress’ unwillingness to pass immigration legislation stems in part from the increasingly polarized nature of immigration. Immigration issues are at the forefront of both the Republican and Democratic Party platforms, and recent presidents from both parties have yielded their executive power to invoke policy change within the immigration system. President Obama used executive power to enacted the Deferred Action for Childhood Arrivals (“DACA”) program in 2012 which provides two-year work permits for “Dreamers”—young adults brought to the U.S. without authorization as children—who meet certain requirements.[12]

President Trump took numerous executive actions to implement his immigration agenda, beginning with his travel ban (also known as the “Muslim ban”) which restricted travel to the U.S. from seven largely-Muslim countries and significantly lowered the number of refugees eligible to be admitted to the U.S.[13] President Trump later enacted the “Remain in Mexico” policy which required those seeking asylum at the southern border to wait in Mexico until their court date.[14] Additional policies enacted by President Trump’s executive actions included the third country transit bar, the “zero tolerance” policy that led to an increase in detentions and family separation for those crossing the southern border without proper documentation, the 2019 “public charge” rule, and various exclusionary measures related to the COVID-19 pandemic.[15]

President Biden took executive action during his first days in office in an effort to quickly reverse several of the Trump Administration’s immigration policies. On day one, President Biden halted construction and funding of the southern border wall, reversed the Muslim ban, and fortified DACA.[16] Additionally, President Biden issued executive orders that expanded the United States Refugee Admissions Program and rescinded Trump policies that limited refugee admissions, disbanded the family separation policy at the border, and created a task force to reunite separated families.[17]

III. United States Citizenship Act of 2021

On his first day in office, President Biden introduced the U.S. Citizenship Act of 2021, an immigration bill intended “to restore humanity and American values to our immigration system.”[18] This bill proposes the most far-reaching changes to immigration law in more than three decades.[19]

Significantly, the bill creates an eight-year pathway to citizenship for 11 million undocumented immigrants.[20] Undocumented individuals physically present in the U.S. before January 1, 2021 will be eligible to apply for temporary legal status and will have the ability to apply for green cards after five years.[21] DACA recipients, TPS holders, and immigrant farmworkers meeting certain qualifications will be eligible for green cards immediately. After three years of green card status, individuals may apply for citizenship.[22]

The bill also prioritizes family unity by “allowing immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for green cards to become available.”[23] Further, the bill seeks to embrace and protect diversity within the immigration system by including protections for LGBTQ+ families, introducing the NO BAN Act that prohibits discrimination based on religion, and increasing Diversity visas from 50,000 to 80,000 annually.[24]

The bill also seeks to address aspects of the employment-based immigration process and increase its efficiency by “clear[ing] employment-based visa backlogs, recaptur[ing] unused visas, reduc[ing] lengthy wait times, and eliminate[ing] per-country visa caps.”[25] The bill supports immigrant workers in high-wage sectors by making it easier for graduates of universities with advanced STEM degrees to stay in the U.S.[26] Similarly, the bill includes protections for low-wage migrant and seasonal workers who encounter workplace retaliation and employers who violate labor laws.[27]

Finally, the bill improves the immigration court system through expanded training and modernized technology, eliminates the one-year filing deadline for asylum claims, addresses the root causes of migration, and, notably, changes the word “alien” to “noncitizen” in U.S. immigration laws.[28]

IV. Discussion

The U.S. immigration system needs legislative reform, and the U.S. Citizenship Act of 2021 is a step in the right direction. However, the Act will not reform the immigration system if it fails to become law. Immigration bills, both small and large, have failed in Congress since the early 2000s, leaving presidential administrations concerned about immigration with little choice but to implement policy objectives through executive action. For example, The Development, Relief, and Education for Alien Minors (“DREAM”) Act was introduced to Congress in 2001 and, like the current DACA program, would have provided a pathway to legal status for undocumented individuals who came into the U.S. without authorization as a child.[29] Over the last two decades, at least ten versions of the DREAM Act have been introduced in Congress, and, despite bipartisan support, none have become law.[30] In 2012, President Obama bypassed the Congressional gridlock and implemented the DACA program through executive action, accomplishing the same goal as the DREAM Act.[31]

The issue with an immigration system heavily premised on executive action is its volatility—every four years, immigration policy may be turned completely on its head as different presidential administrations with different ideological approaches to immigration hold the power to make executive decisions. This flaw is exemplified by both the Trump and Biden Administrations. President Trump implemented policy decisions through executive actions that dramatically impacted the immigration landscape: immigrants from numerous countries were banned, asylum-seekers were required to reside in Mexico while their asylum claims were processed, and the allowed number of refugees and asylees per year was slashed.[32] Four years later, President Biden reversed many of these Trump Administration policies with the stroke of a pen and implemented policies of his own; and, four years from now, another president might do the same to President Biden’s policies. Although not all executive actions are completely vulnerable, illustrated by President Trump’s unsuccessful efforts to discontinue the DACA program,[33] the night-and-day difference between immigration policy on January 19, 2021 and January 20, 2021 sheds light on the unstable nature of the whole system.

Further, a volatile system poses significant logistical issues. For example, the number of refugee admissions decreased every year of the Trump Administration and hit a record-low of 15,000 in his last year in office.[34] During this time, the immigration system and government-funded refugee resettlement agencies operated on a budget and resource allocation that reflected these low numbers. Since taking office, President Biden has vowed to raise refugee admissions to 62,500 for the current budget year,[35] meaning that these agencies must find a way to quickly accommodate this exponential increase.

Legislation works to combat this volatility. Executive action must comport with existing legislation and the constitution, so any changes made by Congress to immigration legislation cannot be contradicted by executive actions.[36] This point is illustrated by President Biden’s approach to the Muslim ban. President Biden effectively reversed the ban through an executive order; however, President Biden’s executive order is potentially vulnerable to reversal by a future president. Accordingly, President Biden included a provision in his immigration bill that limits a president’s ability to issue bans like the Muslim ban in the future. Legislation offers security that extends past a president’s term, and, based upon Congress’ unwillingness to pass any sort of immigration legislation, any successful immigration legislation is likely to last.

V. Conclusion

New immigration legislation is not only the most effective way to comprehensively address the shortcomings of the current immigration system but will also protect immigration policy issues from the volatility of executive action. Although the U.S. Citizenship Act of 2021 offers much-needed revisions and additions to U.S. immigration law, its effects will only be realized if the bill does, in fact, become law. Based upon Congress’ record with immigration legislation and the polarized nature of immigration itself, the bill, as it stands, is unlikely to pass both houses. As several Democratic members of Congress have stated, the Biden Administration stands a better chance of passing key sections of the current immigration bill if those sections are isolated and introduced individually. However, any immigration bill faces a steep uphill battle as even bipartisan efforts to pass immigration legislation have all failed since 2006. Without legislative action, executive action will remain the main mode of immigration policy implementation, leaving the whole system vulnerable every time a change in presidential administration occurs.


[1] Fact Sheet: President Biden Sends Immigration Bill to Congress as Part of His Commitment to Modernize our Immigration System, The White House (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-president-biden-sends-immigration-bill-to-congress-as-part-of-his-commitment-to-modernize-our-immigration-system/.

[2] Id.

[3] Laura Barron-Lopez, Biden’s immigration bill lands on the Hill facing bleak odds, Politico (Feb. 18, 2021), https://www.politico.com/news/2021/02/18/bidens-immigration-bill-bleak-odds-469769.

[4] D’Vera Cohn, How U.S. immigration laws and rules have changed through history, Pew Research Center (Sept. 30, 2015), https://www.pewresearch.org/fact-tank/2015/09/30/how-u-s-immigration-laws-and-rules-have-changed-through-history/.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Elaine Kamarack and Christine Stenglein, Can immigration reform happen? A look back, Brookings (Feb. 11, 2019), https://www.brookings.edu/blog/fixgov/2019/02/11/can-immigration-reform-happen-a-look-back/.

[10] Id.

[11] Id.

[12] Cohn, supra note 4.

[13] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Feb. 1, 2017).

[14] Priyanka Boghani, A Guide to Some Major Trump Administration Immigration Policies, Frontline (Oct. 22, 2019), https://www.pbs.org/wgbh/frontline/article/a-guide-to-some-major-trump-administration-immigration-policies/.

[15] Id.

[16] First 100 Days of the Biden Administration: Table of Substantive Changes, American Immigration Lawyers Association(Feb. 24, 2021), https://www.aila.org/advo-media/issues/all/first-100-days.

[17] Id.

[18] The White House, supra note 1.

[19] Michael D. Shear, Democratic Lawmakers Introduce Biden’s Immigration Overhaul in House, N.Y. Times (Feb. 18, 2021), https://www.nytimes.com/2021/02/18/us/politics/house-democrats-biden-immigration.html?action=click&module=RelatedLinks&pgtype=Article.

[20] The White House, supra note 1.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] The Dream Act, DACA, and Other Policies Designed to Protect Dreamers, American Immigration Council (Aug. 27, 2020), https://www.americanimmigrationcouncil.org/research/dream-act-daca-and-other-policies-designed-protect-dreamers.

[30] Id.

[31] Id.

[32] Boghani, supra note 14.

[33] Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).

[34] Boghani, supra note 14.

[35] Matthew Lee and Julie Watson, Biden wants to quadruple refugee admissions set by Trump, Associated Press (Feb. 11, 2021), https://apnews.com/article/joe-biden-donald-trump-coronavirus-pandemic-dc238dd2f7f504eb34b8cb26e3d69ae6.

[36] Judicial Review of Executive Orders, Federal Judicial Center (last visited Feb. 22, 2021), https://www.fjc.gov/history/administration/judicial-review-executive-orders.

Judicial Deference & Judicial Duty: The Debate in South Bay

Photo by Ian Hutchinson on Unsplash

Jacob Hoback, Associate Member, University of Cincinnati Law Review*

I. Introduction

One of the first Supreme Court cases that law students read is Marbury v. Madison.[1] In that landmark decision, Chief Justice Marshall first articulated the principle of judicial review, under which courts have the authority to strike down laws that they rule unconstitutional.[2]

Although Marbury itself is rarely the subject of controversy, the use (and potential misuse) of judicial review is. At the turn of the 20th century, the Supreme Court often struck down laws that regulated labor and the economy.[3] Later, the Court struck down laws that infringed on unenumerated rights, such as the right to privacy.[4] Now, a new era exists: the COVID-era. To slow the spread of COVID, state governments have restricted social gatherings.[5] But sometimes in doing so, those governments acted unconstitutionally by infringing on fundamental human rights.[6] Consequently, the Supreme Court struck such laws down.[7]

When the Court strikes down laws that aim to achieve a particular interest, advocates of the interest often assert that the Court has abused its power by acting as a super-legislature. That was the argument of the dissent in South Bay United Pentecostal Church v. Newsom.[8] There, California Governor Gavin Newsom issued an executive order that completely prohibited indoor worship in places where COVID was most prevalent.[9] Despite the scientific evidence that proved that COVID was more likely to be transmitted in churches, the Court struck the order down by a 6-3 majority.[10] The dissent, however, argued that the Justices in the majority were not deferential enough to the scientists who testified on the record.[11]

This Article argues that the majority did not abuse its power by striking down the order. State governments do have the authority to handle COVID in the way that they see fit, but they are bound by the Constitution in doing so. It is then the Court’s job to determine whether the government acted unconstitutionally, and whether South Bay was right or not, that is all the Justices did.

II. Background

This Section provides a background of the Court’s free exercise jurisprudence and a summary of the Court’s recent decision in South Bay.

A. The Free Exercise Clause

The First Amendment of the Constitution prohibits the government from “respecting an establishment of religion, or prohibiting the free exercise thereof.”[12] In its jurisprudence, the Supreme Court has a simple test to determine whether a law that substantially burdens religious activity is unconstitutional: if the law is neutral and generally applicable, it will undergo rational basis review, but if the law is not, it will undergo strict scrutiny.[13] Rational basis review is usually an easy test for the government; the government must only show that the government has a legitimate interest and that there is a rational basis between the law’s means and its ends.[14] On the other hand, strict scrutiny is more rigorous; the government must show that its law is designed to achieve a compelling governmental interest and that the government narrowly tailored the law to further that interest.[15] Simply put, laws that are neutral and generally applicable are typically constitutional, whereas laws that permit secular conduct—but not religious conduct—are not.

B. South Bay United Pentecostal Church v. Newsom

The plaintiffs in South Bay argued that the law was unconstitutional since it closed houses of worship but not retail stores.[16] Like most state governments, California had adopted a system that dictated which activities could operate when.[17] In areas where COVID was the most severe, indoor religious activity was completely prohibited.[18] Retail stores, however, were able to operate at 25% capacity.[19] Consequently, the Court applied strict scrutiny and ruled that the law was unconstitutional since it was not narrowly-tailored to fit the state’s interest.[20] In contrast, the dissent concluded that strict scrutiny did not apply since the scientific findings revealed that retail stores were less dangerous than houses of worship.[21]

1. The Holding

South Bay was interesting because there was no majority opinion. Instead, the Justices each signed onto a concurring or dissenting opinion. This Part only discusses Justice Gorsuch’s concurrence.

In his concurrence, Justice Gorsuch concluded that the order was unconstitutional since the law was not neutral and generally applicable.[22] In attacking the neutrality of the order, he emphasized how California placed religious groups in their own category.[23] Moreover, he highlighted that while California completely prohibited indoor worship, it allowed retail stores to function at lighter capacity.[24] Also, Justice Gorsuch emphasized that California was the only state that had banned all religious gatherings.[25]

Because Justice Gorsuch concluded that the order was not neutral and generally applicable, he applied strict scrutiny.[26] In doing so, he reasoned that reducing the spread of COVID was a compelling governmental interest, but he did note that the factors involved in religious houses of worship that posed a serious risk (mixing households in close proximity for extended periods of time) existed in other secular activities.[27] Further, Justice Gorsuch emphasized that California never explained why it had to enact a total ban, thus failing the narrowly-tailored requirement.[28] Therefore, he concluded that the order was unconstitutional.[29]

2. The Dissent

Justice Kagan, joined by Justice Breyer and Justice Sotomayor, argued that the Court should have been deferential to the state government, explaining that “Justices of the Court are not scientists.”[30] The dissent argued that California’s ban on church services was neutral and generally applicable—satisfying the requirement for a law that burdens religion under modern free exercise jurisprudence.[31] Most critically to the dissent, medical experts testified that theaters, churches, and larger public gatherings were more dangerous than places like retail stores.[32] Accordingly, the dissent reasoned that California was justified in closing churches but not other venues.[33]

Additionally, the dissent sharply criticized the majority for not deferring to the legislature.[34] While the dissent believed that the Court was in legal error, it also feared that the decision by the Court would impair states in dealing with COVID as they saw fit.[35] Interestingly, the dissent quoted Chief Justice Roberts in an earlier case with the same plaintiffs, saying that “judges ‘lack[] the background, competence, and expertise to assess public health.’”[36]

Finally, the dissent expressed concerns over separation of powers.[37] Quoting Chief Justice Roberts again, the dissent explained that the Justices were “not accountable to the people.”[38] Moreover, it emphasized that the Justices would not have to face repercussions by striking down a public health measure since the Supreme Court was closed at the time.[39] Finally, the dissent concluded by asserting that the Court in its decision “forgoes ahead regardless, insisting that science-based policy yield to judicial edict.”[40]

IV. Discussion

Science does not dictate policy. Of course, it would have been inappropriate for the Justices to completely disregard the scientific evidence presented in the case. Nevertheless, holding that the order was unconstitutional does not contradict the evidence because although scientific findings influence policy decisions, they certainly do not dictate them. Consider something as simple as driving. If vehicle manufacturers designed cars that had square tires, the rate of traffic accidents would exponentially decline. Yet policy experts would never recommend such a strict rule because almost all Americans accept the risk of driving since they value efficiency over the small risk of serious bodily injury.

The same holds true with the Constitution. It exists to preserve the strongest American values so that even a bare majority could not infringe on fundamental rights. To ensure that those values are preserved, courts use tests to determine whether a law that undermines a fundamental right is justified. Which test is applied is dependent on the priority of the right at stake. For example, the medical experts in South Bay explained that COVID is more likely to spread in theaters than retail stores. Since there is no right to visit a theater, courts apply a lower standard of scrutiny, under which the law is usually upheld. Accordingly, the different classification of a theater and a shopping mall would probably be permissible. But when a law undermines a constitutional right, the standard for the government is higher.

Indeed, that is what South Bay was all about. The disagreement between the Justices was not whether the science was accurate but rather which level of scrutiny applied. Free exercise jurisprudence is hardly settled, and there is still debate about the scope of the law that governs the Free Exercise Clause today.[41] In this case, churches and theaters were left open, but retail stores were closed.[42] Under the dissent’s understanding of Smith, because the secular venues that posed the same risk as churches were closed, the law was neutral and generally applicable.[43] Under the majority’s understanding, however, because retail stores were able to operate, the law was not neutral and generally applicable.[44] Reasonable people might disagree which reading of the law is correct, but regardless of the answer, the underlying question of which standard of scrutiny applies is not a scientific inquiry, but a legal one.

The different levels of scrutiny resulted in different legal outcomes. Here, forty-nine states allowed worship, but California was the only state to impose such harsh restrictions against religious activity, and it provided no reason for doing so.[45] As Chief Justice Roberts said in his opinion, “[T]he State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”[46] Consequently, the majority held that the law was unconstitutional. This analysis is not a scientific formula, nor is it an epidemiological conjecture; it is the application of strict scrutiny. Determining whether a law passes strict scrutiny is not a job for scientists in lab coats but rather jurists in robes. Therefore, the dissent was incorrect in suggesting that the Justices simply just disregarded the science.

V. Conclusion

The majority in South Bay did not abuse its power. There are very thin lines that separate when courts should and should not exercise their power to strike down laws. Nevertheless, when a constitutional right is at issue, courts can and must step in. Under the Constitution, there is a fundamental right to the free exercise of religion. No mathematic formula or scientific hypothesis can declare whether a government has violated that right or not; that is a decision for the judiciary.


* I would like to thank Rufus King Professor of Constitutional Law Professor A. Christopher Bryant for his substantial help in writing this Article.

[1] 5 U.S. 137 (1803).

[2] Id. at 177-79.

[3] See e.g., Lochner v. New York, 198 U.S. 45 (1905); Hamer v. Dagenhart, 247 U.S. 251 (1918).

[4] See e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

[5] For a list of Covid restrictions, see Assisting businesses with evolving COVID-19 orders and helping them return to work, HuschBlackwell, https://bit.ly/3cSmct0 (last visited Feb. 8, 2021).

[6] See e.g., Roman Catholic Diocese of New York v. Cuomo, 592 U.S. ___ (2020).

[7] Id.

[8] 592 U.S. ___ (2021) (Kagan, J., dissenting).

[9] Id.

[10] Id.

[11] Id.

[12] U.S. Const. amend. I., incorporated against the states in Cantwell v. Connecticut, 310 U.S. 296 (1940).

[13] Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[14] Legal Information Institute, Rational Basis Test, Cornell Law School, https://bit.ly/3cPRUXO (last visited Feb. 8, 2021).

[15] Legal Information Institute, Strict Scrutiny, Cornell Law School, https://bit.ly/3oY2fn3 (last visited Feb. 8, 2021).

[16] South Bay, 592 U.S. ___.

[17] Blueprint for a Safer Economy, California for All, https://covid19.ca.gov/safer-economy/ (last visited Mar. 2, 2021).

[18] South Bay, 592 U.S. ___ (Gorsuch, J., concurring).

[19] Id.

[20] Id.

[21] Id. (Kagan, J., dissenting).

[22] Id. (Gorsuch, J., concurring) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-535 (1993)).

[23] Id.

[24] Id.

[25] Id.

[26] Id

[27] Id.

[28] Id.

[29] Id.

[30] Id. (Kagan, J., dissenting).

[31] Id.

[32] Id.

[33] Id.

[34] Id. (“Is it that the Court does not believe the science, or does it think even the best science must give way?”).

[35] Id.

[36] Id. (quoting South Bay United Pentecostal Church v. Newsom, 590 U.S., at ___ (Roberts, C.J., dissenting)).

[37] Id.

[38] Id. (quoting South Bay, 590 U.S., at ___ (Roberts, C.J., dissenting)).

[39] Id.

[40] Id.

[41] Emily Orshinsky, Foster Care and the First Amendment: What are the Requirements for Proving a Free Exercise Violation Under Smith?, Sunday Splits, Sunday Splits (July 19, 2020), http://sundaysplits.com/2020/07/19/foster-care-and-the-first-amendment-what-are-the-requirements-for-proving-a-free-exercise-violation-under-smith/ (explaining the current circuit split regarding the scope of Employment Division v. Smith). See also Rebekah Durham & Jacob Hoback, Seeing Both Sides: Was the Sixth Circuit Right About Kentucky School Closures?, U. Cin. L. Rev. Blog (Dec. 23, 2020), https://uclawreview.org/2020/12/23/seeing-both-sides-was-the-sixth-circuit-right-about-kentucky-school-closures/ (debating the scope of the Free Exercise Clause under Employment Division v. Smith).

[42] Id. (Gorsuch, J., concurring).

[43] Id. (Kagan, J., dissenting).

[44] Id. (Gorsuch, J., concurring).

[45] Id.

[46] Id. (Roberts, C.J., concurring).

People-First, Not Disability-First: Bringing the Ohio Constitution and Ohio Revised Code Into the 21st Century

Photo by Ɱ via Wikimedia Commons

Jehanzeb Khan, Associate Member, University of Cincinnati Law Review[1]

I. Introduction

On January 13, 2021, Katherine Yoder, the Executive Director of the Adult Advocacy Centers, sent a letter to every member of the Ohio General Assembly regarding certain offensive language that exists in the Ohio Revised Code and the Ohio Constitution.[2] The Adult Advocacy Centers, based in Columbus, exist to educate individuals on empathizing and understanding the realities of people with disabilities.[3] The letter discussed how certain provisions within the Ohio Revised Code and Ohio Constitution still use harmful and offensive language towards people with disabilities.[4] While Ms. Yoder highlighted House Bill 158 that replaced references to “mentally retarded person” in the Ohio Revised Code, she noted that terms such as “idiot,” “deaf and dumb,” “mentally retarded,” “lunatics,” “mental defective,” “crippled child/children,” “derangement” and “handicapped,” still exist in the Code and Constitution and must be changed.[5]

Additionally, Ms. Yoder provided a list of the almost two dozen sections of the Ohio Revised Code and two sections of the Ohio Constitution that contain the aforementioned offensive language.[6] Furthermore, the letter provided a list of suggested changes members of the Ohio General Assembly could make to the Ohio Revised Code and Ohio Constitution respectively.[7] In addition to being offensive, Ms. Yoder affirmed that the terms are “rooted in historical trauma, stereotyping and oppression, which can easily result in additional, unnecessary harm for people with disabilities.”[8] This blog will further analyze the current language of the Ohio Revised Code and the Ohio Constitution and the proposed changes suggested by Ms. Yoder. Additionally, this blog will delve into the legal ramifications that may arise if the Ohio General Assembly adopted the suggested changes.

Part II of this blog will outline some of the specific language that the letter highlights as being problematic with suggested language that the Ohio Constitution and Revised Code could use instead. Part III will discuss why the Ohio General Assembly should implement the changes as provided in the letter in full. Lastly, Part IV will conclude with why making the aforementioned changes would be significant in a legal context.

II. Background

To begin, the letter highlighted certain language that exists in the Ohio Revised Code and Ohio Constitution that should be removed outright.[9] For example, a section of the Ohio Constitution uses the term “idiot” that the letter suggests should be eliminated without substitution.[10] Under the Ohio Revised Code, the letter called for three provisions that use the term “mental defective” in reference to a person to be removed outright as well.[11] Furthermore, the letter also highlighted a separate section of the Ohio Revised Code that uses the term “mental defective” as a noun in reference to a person and suggested that it be replaced with “under adjudication of incompetence.”[12]

At least eight sections of the Ohio Revised Code use the term “retarded” or “retardation” in various fashions which the letter suggested be replaced with either “individuals with developmental disabilities or mental health disorders,” “mental health disorders or intellectual and developmental disabilities” or simply be deleted without substitution depending on its grammatical usage in the Code.[13] Two sections of the Ohio Revised Code use the term “handicapped” in reference to a person and it is suggested that it be replaced with “individuals with disabilities.”[14] Two sections of the Ohio Revised Code use the term “crippled children” or “crippled child” and Ms. Yoder suggested that both be replaced with “child with a disability.”[15]

Only one section of the Code uses the term “dead and dumb persons” alone which is suggested to be replaced with “deaf persons” only.[16] One section of the Code also uses the term “lunatics” and the letter suggested that it be replaced with the term “individuals adjudicated to be incompetent.”[17] Furthermore, one section states “’Of unsound mind’ includes all forms of derangement or intellectual disability,” and the letter suggested that “‘of unsound mind’ means that the person lacks the relevant mental capacity” be substituted in place.[18] Finally, the Ohio Constitution uses the term “Institutions for the benefits of the insane, blind, and deaf and dumb,” and the letter suggested that it be replaced with “facilities for and services to persons who, by reason of disability, require care, treatment, or habilitation.”[19]

 It should be noted that the two sections of the Constitution that are mentioned in the letter,  Section 6 of Article V and Section 1 of Article VII, were both drafted in 1851 as part of the original Constitutional Convention.[20] The letter highlights twenty different provisions in total of the Ohio Revised Code that contain offensive language towards people with disabilities and that have been added and amended by various General Assemblies since the very first convention.[21] For example, the oldest provision highlighted by the letter is O.R.C. § 3335.31 that has been effective since 1961.[22] On the other hand, the latest provision highlighted from the letter is O.R.C. § 2923.125(D)(1)(i) that has been effective since 2018.[23]

III. Analysis

The Ohio General Assembly should unquestionably adopt all of the changes suggested by Ms. Yoder in the letter in full. Concerning the language of Article VII § 1 of the Ohio Constitution, the letter added a notable note to the members of the Ohio General Assembly.[24] The section in question concerns how facilities for the service of people with disabilities will be supported by the state of Ohio.[25] In addition to adding the suggested change to the section, Ms. Yoder added the following: “Note: It is fully recognized that the state of Ohio operates and funds institutions in Ohio and should continue to do so. Language substitution is being requested to respect individuals with disabilities, not to change the intent of the Constitution.”[26]

Although this note was only added to highlight Article VII § 1 of the Ohio Constitution, the note itself goes to the great purpose of the letter. Ms. Yoder and the Adult Advocacy Centers are not requesting for any of the legal protections for people with disabilities to change in the Ohio Constitution and Ohio Revised Code. As mentioned, the Ohio Constitution and Revised Code uses “antiquated terms [that] are rooted in historical trauma, stereotyping and oppression, which can easily result in additional, unnecessary harm for people with disabilities.”[27] Adopting the changes suggested in the letter would be a step in the right direction for people with disabilities in the state of Ohio without legally changing any of the protections that govern the aforementioned provisions.

As it stands, much of the language highlighted by the letter that exists in the Ohio Constitution and Ohio Revised Code are now considered outdated and offensive accord to the National Center on Disability and Journalism (NCDJ) and the Associated Press (AP).[28] Foe example, the NCDJ purports that use of the term “defect” and other related terms when describing a disability is offensive since it implies the person is deficient or inferior to others.[29]

 Furthermore, President Obama in 2010 signed “Rosa’s Law” that replaced the term “mental retardation” in many federal laws.[30] Notably, “Rosa’s Law” specifies that it does not “change the coverage, eligibility, rights, responsibilities or definitions referred to in the amended provisions.”[31] If the federal government, over ten years ago, was able to successfully remove harmful language in federal laws without changing any coverage, there is no reason why the Ohio General Assembly cannot similarly make the linguistic changes necessary as mentioned in the letter.

The other problem with the provisions mentioned in the letter is that it uses language that is “identity-first” as opposed to “people-first.”[32] People-first language puts an emphasis on the individuality and dignity of people with disabilities, rather than emphasizing the disability itself.[33] The suggestions in the letter are desiring a change in the language from being “identity-first” to being “people-first.” Instead of using the phrase “handicapped persons” (antiquated term aside), which puts an emphasis on the identity, the letter instead suggests “individuals with disabilities” so as to put an emphasis on the person.[34] Again, changes like this, akin to “Rosa’s Law,” would not alter the intent or protection of any of the statutes or provisions in question, but simply demonstrate respect for people with disabilities.

IV. Conclusion

Some may argue that if the changes mentioned in the letter do nothing to alter the protections afforded to people with disabilities in Ohio, then making the changes is nothing but trivial. However, words that people commonly use and words that are used by our legal system are not trivial at all. That is why racial epithets that may have been commonly used in the 18th century are now viewed as pejoratives, slurs, and insults today. While language can at times change with social norms, language on its own is dynamic and cam guide the way modern society thinks and behaves too.[35]

Furthermore, the terms the Ohio legislature uses to refer to people with disabilities also shapes how the Ohio legal system views people with disabilities too. As it stands, the language in the Ohio Constitution and Revised Code suggests that the Ohio legal system views people with disabilities primarily by their disability while viewing their humanity as secondary.

Furthermore, it cannot even be said that the language is simply from an older period of time, where what was “appropriate” language for people with disabilities was not known. Thirteen of the Ohio Revised Code provisions in the letter were amened within the last ten years.[36] Ohio General Assemblies of recent years have amended some of the aforementioned provisions but made no adjustment to language that is deemed antiquated, outdated, offensive, and truly insulting to people with disabilities. It is time for this Ohio General Assembly to rectify past mistakes and enter the 21st Century.


[1] The author would like to thank Ms. Yoder, the Adult Advocacy Centers, and everyone who contributed to the letter for serving as the inspiration for this blog and for fighting for change for people with disabilities in Ohio.

[2] Tyler Buchanan, Advocates for people with disabilities want offensive Ohio laws rewritten, The Highland County Press (Jan. 27, 2021), https://highlandcountypress.com/Content/In-The-News/Headlines/Article/Advocates-for-people-with-disabilities-want-offensive-Ohio-laws-rewritten/2/73/64196. 

[3] We’re breaking new ground., Adult Advocacy Centers, https://www.adultadvocacycenters.org/about-us/#team (last visited Feb. 2, 2021).

[4] Letter from Katherine Yoder, Executive Director, to Ohio General Assembly (Jan. 13, 2021) available at https://www.adultadvocacycenters.org/wp-content/uploads/2021/01/Derogatory_Language_Letter_1-13-2021.pdf.; for the duration of this blog, Katherine Yoder’s letter to the Ohio General Assembly will be referred to as “the letter.”

[5] Yoder, supra note 3.

[6] Buchanan, supra note 1.

[7] Yoder, supra note 3.

[8] Yoder, supra note 3.

[9] Id.

[10] Oh. Const. Art. V, § 6; Yoder, supra note 3.

[11] O.R.C. § 2923.1213(B)(1)(b), O.R.C. § 2923.125(D)(1)(i) and O.R.C. § 2923.13(a)(5); Yoder, supra note 3.

[12] O.R.C. § 2923.128(B)(1)(f); Yoder, supra note 3.

[13] O.R.C. § 154.02(A)(1), O.R.C. § 154.20, O.R.C. § 2945.491, O.R.C. §5119.70 Art. I, O.R.C. §5119.70 Art. IX (a)-(b), Art. XI, O.R.C. § 5123.021(A), (B)(1) & (C), O.R.C. § 5126.011, O.R.C. § 5165.03(A)(4) & (B)(2), and O.R.C. § 5709.45(H)(1); Yoder, supra note 3.

[14] O.R.C. § 3335.51, O.R.C. § 3501.29(B)(1)(a)-(b), (C), (D)(2) and (F); Yoder, supra note 3. It should be noted that O.R.C. § 5153.16(A)(6) refers to the “bureau for children with mental handicaps” with the suggested replacement be in reference to the state department name called “Children with Mental Handicaps Program.”

[15] O.R.C. § 3113.55 and O.R.C. § 5153.16(A)(6); Yoder, supra note 3.

[16] O.R.C. § 1743.05; Yoder, supra note 3.

[17] O.R.C. § 4961.08; Yoder, supra note 3.

[18] O.R.C. § 1.02(C); Yoder, supra note 3.

[19] Oh. Const. Art. VII, § 1; Yoder, supra note 3.

[20] Oh. Const. Art. V § 6 and Oh. Const. Art. VII § 1.

[21] Yoder, supra note 3.

[22] Id.

[23] Id.

[24] Id.

[25] Oh. Const. Art. VII, § 1.

[26] Yoder, supra note 3.

[27] Id.

[28] Disability Language Style Guide, National Center on Disability and Journalism, https://ncdj.org/style-guide/ (last visited Feb. 12, 2021).

[29] Id.

[30] Id.

[31] Rosa’s Law, Pub. L. No. 111-265, 124 Stat. 2643.

[32] People-First Language, Employer Assistance and Resource Network on Disability Inclusion, https://askearn.org/topics/retention-advancement/disability-etiquette/people-first-language/ (last visited Feb. 6, 2021).

[33] Id.

[34] Yoder, supra note 3.

[35] See Labib Rahman, Disability Language Guide, Stanford Disability Initiative Board (July 2019), https://disability.stanford.edu/sites/g/files/sbiybj1401/f/disability-language-guide-stanford_1.pdf.

[36] Yoder, supra note 3.

Stoddard-Nunez v. City of Hayward: A New Challenge to Qualified Immunity

Photo by Matt Popovich on Unsplash

Paige Richardson, Associate Member, University of Cincinnati Law Review

I. Introduction

Shawn Joseph Jetmore Stoddard-Nunez (“Stoddard-Nunez”) was shot and killed by the defendant Police Officer Manuel Troche (“Troche”).[1] Stoddard-Nunez’s brother brought an excessive use of force claim and a wrongful death suit.[2] The District Court granted summary judgement to the defendants.[3] The Ninth Circuit Court of Appeals reversed and remanded on the basis of several genuine issues of material fact.[4] The Ninth Circuit also determined that Troche was not entitled to qualified immunity for his role in the death of Stoddard-Nunez.[5] The defendants have petitioned for certiorari to determine whether under the circumstances Troche would be entitled to qualified immunity.[6]

II. Facts

On March 3, 2013, Stoddard-Nunez and his brother, Jessie Lee Jetmore Stoddard-Nunez (“Plaintiff”), had a party at their apartment.[7] Stoddard-Nunez and his friend, Arthur Pakman (“Pakman”), drank alcohol at this party.[8] As the night went on, Pakman became belligerent and tried to fight the plaintiff.[9] As a result, Stoddard-Nunez left his apartment with Pakman, who drove them away.[10]

Troche was on duty in his cruiser the same night as the party.[11] Troche and his civilian ride-along passenger, Russell McLeod “(“McLeod”), witnessed Pakman’s vehicle swerving through the street, running red lights and stop signs.[12] Troche pursued Pakman, but never turned on his sirens or signaled he was in pursuit to dispatch.[13] Eventually, Pakman pulled into an empty business parking lot where Troche blocked Pakman’s car with his own cruiser.[14]

At this point, Troche called in a suspicious vehicle report to dispatch, exited the patrol cruiser, and drew his weapon.[15] Troche also claims that he identified himself as a police officer, but McLeod was unable to remember if Troche had done so.[16] Troche told Pakman to turn off the car and show his hands multiple times.[17] Pakman did not comply with the orders.[18] Troche testified that Stoddard-Nunez in the passenger seat started to reach under the dashboard, which led Troche to believe he was reaching for a weapon or hiding contraband.[19]

Pakman executed a three-point turn, facing the vehicle towards Troche, McLeod, and the cruiser.[20] McLeod testified that Troche yelled at Pakman once again to turn the car off;[21] however, Pakman accelerated in the direction of the cruiser.[22] There was some differing testimony as to whether Pakman swerved to aim the car at the area where Troche and McLeod were standing,[23] but evidence suggests that Pakman drove his car towards the passenger side of the cruiser, leaving a large gash on the side of the cruiser.[24]

As Pakman approached Troche and McLeod, Troche fired nine times into Pakman’s vehicle, killing Stoddard-Nunez.[25] Pakman was not hit and continued to drive away from the scene until he was eventually involved in a crash.[26]

III. Procedural History

The plaintiff brought a wrongful death claim and an excessive use of force claim against the city and Troche.[27] The defendants filed a motion for summary judgement, which the District Court granted.[28] The plaintiff appealed to the Ninth Circuit, and the District Court decision was reversed and remanded because there were genuine issues of material fact that precluded summary judgement. The court also determined that Troche was not entitled to qualified immunity.[29] The defendants have now petitioned the United States Supreme Court for certiorari.[30]

IV. Qualified Immunity

The issue presented to the Supreme Court is that of qualified immunity. Qualified immunity protects officers whose actions do not violate clearly established laws that a reasonable person would have known.[31] In cases of excessive force, the analysis for qualified immunity is fact-driven and done on a case-by-case basis.[32] Courts generally go through a two-step analysis to determine qualified immunity, although the first step is not strictly necessary.[33] First, the courts determine if there was a constitutional violation, and if so, the courts determine if that constitutional right was clearly established.[34]

The District Court argued that the plaintiff did not assert any violation of a constitutional right, and that even if he had, he had no evidence to prove that it was a clearly established right.[35] The District Court specifically noted the lack of authorities with similar fact patterns as a barrier to finding any right was clearly established.[36] On this basis, the District Court granted Troche qualified immunity.[37]

The Ninth Circuit disagreed, citing case law that clearly establishes “that deadly force may be used only if it is necessary to prevent the escape of a suspect and ‘the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’”[38] Because the court also reversed the District Court’s holding for summary judgement, a reasonable jury could believe the plaintiff’s version of events in which Troche used unconstitutionally excessive force in killing Stoddard-Nunez.[39] On this basis, the Ninth Circuit held Troche was not entitled to qualified immunity.[40]

The issue for courts reviewing qualified immunity claims is that there is no bright line rule determining the use of deadly force.[41] The courts simply apply a reasonable test to the totality of the circumstances.[42] Some level of flexibility is necessary for claims that are distinctly fact-driven as Fourth Amendment excessive force claims are. However, this also leads to some confusion and differences in application across the circuits. For instance, the circuits have differing views on what constitutes the totality of the circumstances, resulting in significantly more narrow analyses in some courts.[43] By taking this case, the Supreme Court could reconcile the various differing analytical approaches.

V. Conclusion

Though the petition presents a necessarily narrow issue because of the fact-driven nature of excessive force analysis, qualified immunity for officers has been a topic of intense debate due to the Black Lives Matter movement. In the summer of 2020, the Supreme Court declined to hear several qualified immunity cases.[44] If the Court decides to hear this case it could determine where a relatively new Court stands on important criminal procedure issues. This case could also place the Supreme Court in the center of a serious social and political debate surrounding the rights of officers versus the rights of their victims.


[1] Stoddard-Nunez v. City of Hayward, 817 Fed.Appx. 375 (9th Cir. 2020).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] James Romoser, 3D-printed firearms and liability for police shootings, SCOTUSblog: Petitions of the Week (Feb. 12, 2021), https://www.scotusblog.com/2021/02/3d-printed-firearms-and-liability-for-police-shootings/.

[7] Stoddard-Nunez v. City of Hayward, 2018 WL 3159618, at *1 (N.D.Cal. 2018).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *2.

[15] Id. at *2.

[16] Id. at *3.

[17] Id. at *2.

[18] Id. at *2.

[19] Id. at *2.

[20] Id. at *3.

[21] Id. at *3.

[22] Id. at *3.

[23] Id. at *3.

[24] Id. at *3.

[25] Id. at *4.

[26] Id. at *4.

[27] Id. at *4.

[28] See, Id.

[29] See, Stoddard-Nunez, 817 Fed.Appx.

[30] Romoser, supra note 6.

[31] Stoddard-Nunez, 2018 WL 3159618, at *10.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Stoddard-Nunez, 817 Fed.Appx. at 378 (citing Tennessee v. Garner, 471 U.S. 1, 3 (1985); see also Acosta v. City and County of San Francisco, 83 F.3d 1143 (9th Cir. 1996); Orn v. City of Tacoma, 949 F.3d 1167, 1178 (9th Cir. 2020).                                          

[39] Stoddard-Nunez, 817 Fed.Appx. at 378-79.

[40] Id. at 378.

[41] Scott v. Harris, 550 U.S. 372 (2007).

[42]Id.

[43] William Heinke, Deadly Force: Differing Approaches to Arrestee Excessive Force Claims, 26 Review of Law and Social Justice 155 (2017).

[44] Hailey Fuchs, Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests, NY Times (June 23, 2020),https://www.nytimes.com/2020/06/23/us/politics/qualified-immunity.html.

Everybody Take a Shot: The Legal Tightrope for Covid-19 Vaccine Mandates

Photo by Hakan Nural on Unsplash

Erica Anderson, Associate Member, University of Cincinnati Law Review

I. Introduction

On March 13, 2020,[1] millions of Americans clocked out from work, drove home for dinner, and never came back. Nearing a year later, many buildings remain vacant as only one in four Americans have the pleasure of working outside of their own four walls.[2] However, there was a single light at the end of the seemingly endless 2020 tunnel—a COVID-19 vaccine.

With mass vaccinations at the horizon, many employers plan to invite their workers back inside their offices.[3] How quickly employees can return to in-person work will likely depend upon how many employees are vaccinated—if they even have a choice.

Although vaccinations may be the strongest weapon against global outbreaks such as the coronavirus,[4] recently distrust has spiked in vaccines and the industries behind them.[5] Even some healthcare workers have come forward with their anti-vaccination stances.[6] Yet, 43% of employers are considering a COVID-19 vaccine mandate,[7] and employers have already begun to fire employees who refuse the vaccine.[8] This controversy begs the question: can their bosses make them get vaccinated anyway?

II. Background

Whether employers can require employees to get a vaccine depends upon the type of employer. Part A of this section discusses the law for public employers, and Part B discusses the law for private employers. Part C of this section summarizes the various legal exceptions to vaccine mandates.

A. Public Employers

In the world of politics, the possibility of vaccine mandates is a hot and wildly debated topic. Yet, most are unaware that the argument was already settled as a matter of law over 100 years ago in Jacobson v. Massachusetts.[9]

In the early 1900s, smallpox sailed through air of Massachusetts infecting over 1,500 people, and killing almost one-fifth of them.[10] Massachusetts citizens had two options—get the smallpox vaccine or pay a fine.[11] Henning Jacobson refused to do either, arguing that the vaccine mandate violated his right “to live and work where he will.”[12]

The Supreme Court rejected Jacobson’s argument because “upon the principle of self-defense . . . a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”[13] The Court ultimately held that societal safety should not merely depend upon individuals’ unwillingness to follow reasonable health regulations.[14]  Thus, a required vaccine protecting an entire community against a fatal disease is legal.[15]

The Supreme Court’s ruling in Jacobson is the legal foundation for vaccine mandates forced upon public school students[16] and public hospital healthcare workers.[17] As long as a vaccine is “necessary for public health,”[18] and it is considered a “reasonable regulation,”[19] then it can be mandated upon the whole, or certain members, of the public.

B. Private Employers

Even if the government does not enforce a vaccine mandate, private employers may require employees to get vaccinated because private employers are not confronted with the same constitutional concerns that public employers face. All but one of the 50 states follow a legal doctrine known as “at-will employment.”[20] “At-will employment” means an employer is free to dismiss an employee for any reason that is not illegal.[21] The employer is neither required to provide a warning or establish a justification for the termination.[22]

C. Exceptions

Employee vaccine mandates face a select few legal barriers. For example, public and private employers exceeding 15 employees[23] must abide by the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII).[24]

The ADA prohibits employers from firing an employee who may not adhere to a vaccine mandate due to a disability.[25] A “disability” is vaguely defined as “a physical impairment that substantially limits one or more . . . major life activities . . . .”[26] Employers must offer “reasonable accommodations” to any employee with a qualifying disability under the ADA.[27]A accommodation is considered “reasonable” if it would not create “undue hardship” for the employer.[28]

Title VII prohibits employers from discriminating against employees because of their religious beliefs.[29] However, it only requires employers to provide “reasonable accommodations” for employees whose religious beliefs are “sincerely held.”[30] Courts determine whether an individual’s religious beliefs are “sincerely held” on a case by case basis, but the most influential observances and practices include “attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.”[31]

The only legal exception to the ADA’s and Title VII’s requirements is known as the “direct threat” defense. A “direct threat” is a “significant risk of substantial harm to the health and safety of the individual or others.”[32] To determine whether an employee is a “direct threat,” courts review the duration of the potential risk while also looking at the severity, likelihood, and imminence of potential harm.[33] When balancing the factors, if an employer finds a “direct threat” exists and no “reasonable accommodations” can eliminate that threat, then employers may simply fire the employee to protect all others in the workplace.[34]

Additionally, unions may have an effect on whether certain employers will enforce a vaccine mandate. Unions are designed to provide employees with a collective power to negotiate conditions of their employment with their employer.[35] The National Labor Relations Act prohibits private employers from violating their employees’ right to unionize, and 24 states have laws protecting public sector employees’ right to be union members.[36] Thus, if members of a union do not agree to a vaccine mandate, the union can negotiate for other precautions to be taken instead.

III. Discussion

The answer to whether employers can require the COVID-19 vaccine differs depending upon whether the employer is public or private. Part A of this section delves into the constitutionality of a COVID-19 vaccine mandate by public employers, and Part B explores the legality of vaccine mandates by private employers along with foreseeable issues with disability-related and religious exemptions to those mandates.

A. Public employers may or may not be able to require the COVID-19 vaccine depending on whether it is “reasonable” and “necessary.”

In Jacobson, the Supreme Court affirmed that states possess the police power to enforce a vaccine mandate when it is a “reasonable regulation[]” necessary for public safety.[37] Accordingly, public employers may enforce the COVID-19 vaccine if found to be a reasonable expectation necessary for the pandemic to be under control.

i. Is the COVID-19 vaccine a reasonable regulation?

Vaccines are known to be both safe and effective.[38] For instance, the smallpox vaccine produced a 100% decrease in cases– saving almost 50,000 lives per year.[39] However, similar to most other medical treatment, vaccines are not magical cures with no risk. Some who receive vaccines may not be fully protected,[40] and some may be harmed by the vaccine itself.[41]

For example, the influenza (flu) vaccine only decreases the risk of contracting the flu by 40-60%.[42] Consequently, many who opt to receive the flu vaccine nevertheless catch the flu and are not protected from its symptoms.[43] Yet, many healthcare employers require their employees to get the annual flu vaccine.[44] A flu vaccine mandate is a reasonable regulation because the only known serious side effect caused by the vaccine itself is anaphylaxis,which is a treatable allergic reaction that only occurs in 0.2% of vaccination recipients.[45]

Although the flu and COVID-19 have similar symptoms, their vaccines possess a major difference. The original flu vaccine was created in the early to mid 1930s,[46] but was not widely available to U.S. citizens until 1945.[47] Over a decade of observation was conducted before Americans were offered the flu vaccine.

The same case cannot be made for the COVID-19 vaccine. Before vaccines are made available to U.S. citizens, they are evaluated by the Food and Drug Administration (FDA) for approval.[48] This process often takes 10 to 15 years.[49] The two leading COVID-19 vaccination companies, Moderna and Pfizer/BioNTech, began their clinical trials mid to late summer of 2020,[50] so FDA approval will likely not come for several years. Yet, these COVID-19 vaccines became available within a mere six months.[51] How is this possible?

For the first time in history, the FDA authorized vaccines under the “emergency use authorization” (EUA).[52] The EUA allows, in public health emergencies, for vaccines to be distributed without full FDA approval when there are no other known treatment alternatives.[53] The issuance of EUA does not mean that science has been ignored; the FDA closely assesses all available evidence including known and potential risks and benefits.[54] If the analysis weighs in favor of the vaccine being more beneficial than harmful, then EUA is granted.[55]

No legal precedent exists to determine whether vaccines approved via the EUA are “reasonable.” However, certain facts point toward EUA vaccines, such as the COVID-19 vaccine, not being “reasonable” regulations.

First, the FDA itself states individuals should have the right to refuse the vaccine.[56] Similarly to other rights, however, exceptions will exist. For example, employment attorneys are foreseeing a “public policy exception.”[57]

Second, although the technology used to develop the vaccine has been in development for years prior to the COVID-19 outbreak,[58] and the vaccine is more likely to be safe than not,[59] a great deal of research is yet to be done before the vaccine can be classified as safe and fully approved by the FDA. For example, clinical trials have not been performed on all classifications of people; there has been no testing on the effects of the vaccine on pregnant women.[60]

Because the COVID-19 vaccine has not gained full FDA approval, and the vaccine has not been clinically tested on all classes of people expected to receive the vaccine, public employers may struggle to argue that the COVID-19 vaccine is a “reasonable” regulation.

ii. Is the COVID-19 vaccine necessary for public safety?

In Jacobson, mass vaccination was necessary to protect citizens against smallpox.[61] It was an “effective, if not [the] best-known, way” to eradicate the disease that was killing over 9% of the population.[62]  The Supreme Court emphasized that public safety includes protection against “fearful,” “contagious,” and “dangerous” disease.[63]

COVID-19 has caused massive fear amongst the globe. In fact, COVID-19 related fears such as “mortality” and “unemployment rates” have become the “most searched topics in Google search history.”[64] Nationwide fear is not unwarranted, however, as COVID-19 is highly contagious[65] and fatal.[66] COVID-19 particles can live in the air for hours after an infected individual leaves the area.[67] Additionally, its incubation period can last up to two weeks[68] in comparison to the flu’s one to four day incubation timeline.[69]

Evidence clearly shows that COVID-19 has caused widespread fear and is highly contagious, but is COVID-19 “dangerous” by the Court’s standards in Jacobson? According to the Center for Disease Control and Prevention, before a smallpox vaccine was available, the disease killed approximately 30% of all who contracted it.[70] However, the COVID-19 mortality rate in America is less than 1%.[71]

The Court’s definition of “dangerous” disease has been ambiguous.[72] Thus, a reasonable argument can be made that dangerousness does not equate to mortality. COVID-19 can cause serious long-term damage to the lungs, heart, and brain.[73] Notably, it has caused strokes, seizures, and paralysis while increasing one’s risk of Parkinson’s, Alzheimer’s, and heart failure.[74] Although a less than 1% mortality rate seems minimal, 417,000 Americans have lost their lives to COVID-19 in a mere 10 months. Consequently, medical experts assume COVID-19 to be a highly dangerous virus.[75]

B. Private employers can enforce a covid-19 vaccine mandate, and the ADA exception may face trouble.

Conditional upon the existence of an exception, private employers can enforce a vaccine mandate whether the vaccine is “reasonable” and “necessary” or not. Montana is the only state excluded from this conclusion as it does not follow “at-will” employment policies.[76]

However, because COVID-19 is so dangerous, even employees with ADA disabilities or sincerely held religious beliefs will be confronted with legal problems. Courts may find that the risk of COVID-19 poses a “direct threat” as it is highly contagious through the air[77] and could have a fatal impact on those infected.[78] Thus, if an employer enforces a vaccine mandate, and an individual cannot be vaccinated due to a disability or sincerely held religious belief, and cannot reasonably complete his duties in isolation from other employees, then the employer may be able to fire that employee with no legal consequences.

IV. Conclusion

It is unclear whether public employers will be able to enforce a COVID-19 vaccine mandate. Because no other treatment is readily available, courts will likely find the vaccine to be necessary to public safety. Whether the vaccine is “reasonable” is uncertain. On the one hand, the vaccine may be viewed as a “reasonable regulation” because clinical trials have been performed with no major side effects. However, there is a valid argument to be made that the vaccine is an unreasonable regulation as it is not fully FDA approved.

As for private employers, all states except Montana are subject to “at-will” employment policies. This means employers can enforce upon their employees anything that is not illegal, and fire those employees who do not comply. Vaccine mandates are only illegal when forced upon those with disabilities or sincerely held religious beliefs that conflict with the vaccine, unless, of course, a “direct threat” exception exists. In that case, employees with disabilities or sincerely held religious beliefs can be legally terminated for refusing the vaccine. Beyond these exceptions, a union may be able to negotiate out of a COVID-19 vaccine mandate, but it is not guaranteed.


[1] Derek Hawkins, et. al., Trump declares coronavirus outbreak a national emergency, Wash. Post. (March 13, 2020) https://www.washingtonpost.com/world/2020/03/13/coronavirus-latest-news/.

[2] May Wong, Stanford research provides a snapshot of new working-from-home economy, Stanford News (June 29, 2020) https://news.stanford.edu/2020/06/29/snapshot-new-working-home-economy/.

[3] Philip Molnar, Given vaccine news, will companies call back workers sooner?, The San Diego Union-Tribune (Dec. 4, 2020) https://www.sandiegouniontribune.com/business/story/2020-12-04/given-vaccine-news-will-companies-call-back-workers-sooner. 

[4] See generally Brian Greenwood, The contribution of vaccination to global health; past, present and future, Phil. Trans. R. Soc. B. (2014).

[5] Talha Burki, The online anti-vaccine movement in the age of COVID-19, 2 Lancet Digital Health, 504 (Oct. 2020).

[6] Samantha Artiga, et. al., Key Characteristics of Health Care Workers and Implications for COVID-19 Vaccination, KFF (Jan. 21, 2021) https://www.kff.org/coronavirus-covid-19/issue-brief/key-characteristics-of-health-care-workers-and-implications-for-covid-19-vaccination/.

[7] Robert Iafolla, Few Employers Embrace Covid Vaccine Mandates, Survey Shows, Bloomberg Law (Feb. 9, 2021).

[8] Matthew Haag, N.Y. Restaurant Fires Waitress Who Wouldn’t Get Covid-19 Vaccine, N.Y. Times (Feb. 17, 2021) https://www.nytimes.com/2021/02/17/nyregion/waitress-fired-covid-19-vaccine-refusal.html.

[9] Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).

[10] Michael R. Albert, MD., et. al., Smallpox Manifestations and Survival During the Boston Epidemic of 1901 to 1903, Annals of Internal Med. (Dec. 17, 2002).

[11] Jacobson, 197 U.S. at 21.

[12] Id. at 29 (the right to live and work is secured in the Fourteenth Amendment of the Constitution).

[13] Id. at 27.

[14] Id. at 29.

[15] Id. at 29.

[16] Erin Walkinshaw, Mandatory vaccinations: The international landscape, 183 Canadian Med. Assoc. (Nov. 8, 2011).

[17] Robert I. Field, JD, MPH, PhD, Mandatory Vaccination of Health Care Workers: Whose Rights Should Come First, 34 Pharmacy and Therapeutics (Nov. 2009).

[18] Jacobson, 197 U.S. at 27.

[19] Id. at 29.

[20] Donald C. Robinson, The First Decade of Judicial Interpretation of the Montana Wrongful Discharge from Employment Act (WDEA), 57 Mont. L. Rev., 375, 376 (1996).

[21] Jay Shepherd, Firing at Will: A Manager’s Guide 4 (2011).

[22] Id.

[23] U.S. Equal Employment Opportunity Commission, Fact Sheet: Disability Discrimination (Jan. 15, 1997); 42 U.S.C § 2000(e)(2)(B) (2012).

[24] Public employers must also abide by the Religious Freedom Restoration Act which prohibits the government from “substantially burdening” a person’s religious exercise unless the government can withstand strict scrutiny by showing it has a “compelling interest” in enforcing the law and it is using the “least restrictive means” of achieving its goal (Amanda Brennan, Playing Outside the Joints: Where the Religious Freedom Restoration Act Meets Title VII, 68 Am. U. L. Rev., 569, 571 (2018).

[25] See generally Riggiero v. Mount Nittany Medical Center, 736 Fed.Appx.35 (2018) (holding a nurse suffering from anxiety and eosinophilic esophagitis should not have been terminated for refusing a TDAP vaccine because her disability fell under the ADA and reasonable accommodations were available).

[26] United States Department of Justice Civil Rights Division, Introduction to the ADA, https://www.ada.gov/ada_intro.htm (last visited Feb. 11, 2021).

[27] U.S. Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (Oct. 17, 2002). https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N.

[28] Id.

[29] Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e (1964).

[30] United States v. Seeger, 380 U.S. 163, 178 & 185 (1965) (holding personal preferences and social philosophies about religion will simply not suffice).

[31] U.S. Equal Opportunity Commission, EEOC Compl. Man., Directive No. 915.003 §12-I on Religious Discrimination (July 22, 2008).

[32] Jacquie Brennan, The ADA National network Disability Law Handbook 9 (2015).

[33] E.E.O.C. v. Hibbing Taconite Co., 720 F.Supp.2d 1073, 1082 (2010).

[34] Id.

[35] The Utility Workers Union of America, What are the Benefits of Being a Union Worker? https://uwua.net/what-are-the-benefits-of-being-a-union-worker/ (last visited Feb. 18, 2021).

[36] American Federation of State, County and Municipal Employees, States with Comprehensive Collective Bargaining Laws (Nov. 2017) https://files.epi.org/uploads/bwp-collective-bargaining-map.pdf.

[37] Jacobson, 197 U.S. at 25 (citing Gibbons v. Ogden, 22 U.S. 1 (1824)).

[38] Ross S. Federman, Understanding Vaccines: A Public Imperative, 87 Yale J. of Biology & Med., 417, 417 (2014).

[39] Kevin M. Malone and Alan R. Hinman, Vaccination Mandates: The Public Health Imperative and Individual Rights, 13 CDC, 262, 266 (last visited Feb. 11, 2021).

[40] Shanoor Seervai, ‘Not a Magic Wand’: The Race for a COVID-19 Vaccine, The Commonwealth Fund (Oct. 30, 2020) https://www.commonwealthfund.org/publications/podcast/2020/oct/not-magic-wand-race-covid-19-vaccine.

[41] Pam Belluck, et. al., Vaccine Injury Claims Are Few and Far Between, N.Y. Times (June 18, 2019) https://www.nytimes.com/2019/06/18/health/vaccine-injury-claims.html (over the past 12 years in the United States, approximately 126 million doses of measles vaccines have been given, and 143 people received compensation for injuries related to the vaccine).

[42] Centers for Disease Control and Prevention, Vaccine Effectiveness: How Well do the Flu Vaccines Work? (Dec. 16, 2020) https://www.cdc.gov/flu/vaccines-work/vaccineeffect.htm.

[43] Centers for Disease Control and Prevention, Misconceptions about Seasonal Flu and Flu Vaccines (last reviewed Jan. 25, 2021) https://www.cdc.gov/flu/prevent/misconceptions.htm.

[44] Mackenzie Bean, 17 states with hospital staff flu shot requirements, Becker’s Hospital Rev. (Oct. 22, 2020).

[45] John R. Su, MD., PhD., MPH., et. al., Anaphylaxis after vaccination reported to the Vaccine Adverse Event Reporting System, 1990-2016, 143 J. of Allergy and Clinical Immunology, 1465, 1465 (Apr. 1, 2019).

[46] Brian K. Nunnally, et. al., Vaccine Analysis: Strategies, Principles, and Control (Nov. 2014).

[47] Richard W. Compans & Walter A. Orenstein, Vaccines for Pandemic Influenza, 49 (Sept. 2009).

[48] Food and Drug Administration, Ensuring the Safety of Vaccines in the United States (July 2011) https://www.fda.gov/files/vaccines,%20blood%20&%20biologics/published/Ensuring-the-Safety-of-Vaccines-in-the-United-States.pdf.

[49] The College of Physicians of Philadelphia, Vaccine Development, Testing, and Regulation, History of Vaccines (Jan. 2018) https://www.historyofvaccines.org/content/articles/vaccine-development-testing-and-regulation (last visited Feb. 3, 2021).

[50] Will Brothers, A Timeline of Covid-19 Vaccine Development, Biospace (Dec. 3, 2020) https://www.biospace.com/article/a-timeline-of-covid-19-vaccine-development/ (last visited Feb. 3, 2021).

[51] Sarah Krouse, et. al., The Mass Distribution of COVID-19 Vaccines is Under Way. ‘Everything Has to Come Together.’, Wall St. J. (Dec. 13, 2020) https://www.wsj.com/articles/covid-19-vaccines-mass-distribution-supply-chain-11607874181?mod=article_inline.

[52] Food and Drug Administration, FDA Takes Key Action in Fight Against Covid-19 By Issuing Emergency Authorization for First Covid-19 Vaccine (Dec. 11, 2020) https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19.

[53] Id.

[54] Food and Drug Administration, Emergency Use Authorization for Vaccines Explained (Nov. 20, 2020) https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained.

[55] Id.

[56] U.S. Department of Health and Human Resources, Food and Drug Administration, Emergency Use Authorization of Medical Products and Related Authorities, 1, 24 (Jan. 2017) (the President may waive the option for refusal for members of the armed forces).

[57] Robert Iafolla, Emergency Virus Vaccines Approval Adds More Risk to Job Mandates, Bloomberg Law (Dec. 30, 2020) https://www.bloomberglaw.com/product/blaw/document/QM5SFUDWRGG9?criteria_id=3e481f7ca6a64776448e33d568b03109.

[58] Lauran Neergaard, Years of research laid groundwork for speedy COVID-19 vaccines, PBS (Dec. 7, 2020) https://www.pbs.org/newshour/health/years-of-research-laid-groundwork-for-speedy-covid-19-vaccines.

[59] Fernando P. Polack, M.D., et. al., Safety and Efficacy of the BNT162b2 mRNA COVID-19 Vaccine, N. Engl. J. Med. (2020) https://www.nejm.org/doi/full/10.1056/NEJMoa2034577.

[60] Centers for Disease Control and Prevention, COVID-19 Vaccination Consideration for People Who Are Pregnant (Jan. 7, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/pregnancy.html.

[61] See generally Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[62] Id. at 31 n.1.

[63] Id. at 34.

[64] Alisha Arora, et. al., Understanding coronaphobia, 54 Asian J. of Psychiatry, 1, 1 (2020).

[65] See generally Xi He, et. al., Temporal dynamics in viral shedding and transmissibility of COVID-19, 26 Nature Medicine, 672 (May 2020).

[66] Smriti Mallapaty, How deadly is the coronavirus? Scientists are close to an answer, Nature (June 16, 2020) https://www.nature.com/articles/d41586-020-01738-2.

[67] Centers for Disease Control and Prevention, Scientific Brief: SARS-CoV-2 and Potential Airborne Transmission (Oct. 5, 2020) https://www.cdc.gov/coronavirus/2019-ncov/more/scientific-brief-sars-cov-2.html.

[68] See generally Stephen A. Lauer, MS, PhD, et. al., The Incubation period of Coronavirus Disease 2019 (COVID-19) From Publicly Reported Confirmed Cases: Estimation and Application, ACP J. (May 5, 2020) https://www.acpjournals.org/doi/pdf/10.7326/M20-0504.

[69] Sam Ghebrehewet, et. al., Influenza, BMJ (Dec. 7, 2016) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5141587/.

[70] Centers for Disease Control and Prevention, History of Smallpox (Aug. 30, 2016) https://www.cdc.gov/smallpox/history/history.html.

[71] Leora I. Horwitz, MD, MHS, et. al., Trends in COVID-19 Risk-Adjusted Mortality Rates, 16 Journal of Hospital Medicine, 90, 91  (Feb. 2021) https://www.journalofhospitalmedicine.com/jhospmed/article/230561/hospital-medicine/trends-covid-19-risk-adjusted-mortality-rates (As of August 2020, the COVID-19 mortality rate of 0.38%).

[72] Jacobson, 197 U.S. 11, 39 (1905) (the Court consistently references “dangerous disease,” but never defines it).

[73] Mayo Clinic, COVID-19 (coronavirus): Long-term effects (Nov. 17, 2020) https://www.mayoclinic.org/diseases-conditions/coronavirus/in-depth/coronavirus-long-term-effects/art-20490351.

[74] Id.

[75] ABC News, WHO warns of coronavirus, now dubbed COVID-19, is ‘public enemy number 1’ and potentially more powerful than terrorism (Feb. 11, 2020) https://www.abc.net.au/news/2020-02-12/coronavirus-public-enemy-number-one-vaccine/11956446.

[76] Robinson, supra note 20.

[77] Cf. Arline v. Sch. Bd., 772 F.2d 759, 765 (11th Cir. 1985) (holding a teacher with tuberculosis was not a “direct threat” to students because the disease is not transmittible through the air).

[78] Compare with Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1265-6 (4th Cir. 1995) (holding that a fatal infection weighs in favor of a “direct threat” finding).

Politics over Precedent? How the Court Limited Telemedicine in FDA v. American College of Obstetricians and Gynecologists

Photo by Kari Shea on Unsplash

Sarah Simon, Associate Member, University of Cincinnati Law Review

I. Introduction

“Telemedicine” or “telehealth” is the use of technology to provide remote medical care.[1] In 2020, doctors saw “between 50 and 175 times more patients” via telemedicine than they did before COVID.[2] Telemedicine is here to stay: 83% of patients plan to use it post-COVID.[3] The U.S. Department of Health and Human Services removed barriers to telemedicine by allowing Medicare and Medicaid recipients to receive virtual care regardless of their location and waiving HIPAA violations for providers using private technology and “good faith delivery.”[4] The Supreme Court has not weighed in on these regulatory changes, but a recent decision addresses telemedicine—in the dissent.

FDA v. American College of Obstetricians and Gynecologists (“FDA”) is the first Supreme Court decision to reference “telemedicine.”[5] Only Justice Sotomayor and Justice Kagan discuss telemedicine in their dissent.[6] This article will analyze the Court’s decision in FDA and argue that the Court ignored the importance of telemedicine by choosing politics over precedent. Part II explains the Court’s decision in FDA. Part III describes a standard that the Court could have used to evaluate the case. Part IV discusses two ways that the Court could have approached the case along with telemedicine implications of the Court’s decision. Part V concludes by recommending that the Biden administration reverse the decision.

II. FDA v. American College of Obstetricians and Gynecologists

Mifepristone (or Mifeprex) is a medicine used to end pregnancy during the first trimester.[7] The U.S. Food and Drug Administration approved the pill 21 years ago but stipulated that it be given in a clinical setting.[8] The ACLU, on behalf of the American College of Obstetricians and Gynecologists (“ACOG”), sued to prevent the in-person requirement from being enforced, citing the dangers of COVID.[9] In 2020, three federal courts sided with the ACLU and granted a preliminary injunction that waived the in-person requirement.[10] This allowed providers to mail or deliver the drug directly to patients.[11] In one decision, U.S. District Judge Theodore Chuang emphasized, “in light of the limited timeframe during which a medication abortion or any abortion must occur, such infringement on the right to an abortion would constitute irreparable harm.”[12]

The Trump administration demanded the Supreme Court overrule the preliminary injunction and reinstate the in-person criteria for mifepristone.[13] In FDA, the Court sided with the Trump administration and restored the criteria for the pill.[14] However, the majority failed to provide any reasoning for this decision.[15] Chief Justice Roberts concurred, adding the issue is “not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion.”[16] Instead, he interpreted the issue as whether the federal courts were correct to override the in-person requirement.[17] Relying on the separation of powers notion, he concluded that courts should not overstep “politically accountable entities…[in] public health.”[18]

Justice Sotomayor and Justice Kagan dissented, pointing out that the FDA had waived in-person requirements for some controlled substances due to COVID, but singled out mifepristone for political reasons.[19] The justices also argued that the Trump administration failed to show “irreparable harm” to justify reversing the injunction.[20]

III. Undue Burden Standard

Stare decisis is a Latin term which means “let the decision stand.” This imposes a duty on the Court to follow its past decisions.[21] In Planned Parenthood v. Casey, the Court created the undue burden standard.[22] Under this standard, if a regulation’s “purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion,” the regulation is void as an undue burden.[23] The Casey precedent applies to future abortion regulations and requires the Court to ask if the regulation creates an “undue burden.”[24]

IV. Discussion

In FDA, the Court missed an opportunity to discuss the benefits of telemedicine during COVID. The Court viewed abortion as a political issue and voted along party lines.[25] The six justices appointed by Republican presidents made up the majority and the three justices appointed by Democrat presidents dissented.[26] The Court should have used the case to discuss the benefits of telemedicine during COVID.

There are two routes the Court could have taken, and both would have allowed the Court to appreciate telemedicine. First, the Court could have applied the Casey precedent by asking if the in-person requirement created an “undue burden” on seeking an abortion. Requiring patients to see their doctor in person significantly increases the risk of COVID, not only for the patient and doctor, but also for other healthcare workers and patients. This likely rises to an undue burden for the patient, especially for those with risk factors that predispose them to COVID.

As of 2019, six states only have one abortion clinic.[27] In these states, the in-person requirement brings in patients from all over the state, facilitating the spread of COVID, whereas telemedicine allows the patient to meet with their doctor, obtain their medicine, and stops the spread of COVID. [28] By ignoring the Casey precedent, the Court unnecessarily restricted telemedicine when it was crucial. The Court should have concluded that the totality of the circumstances with COVID constitute an undue burden.

Second, the Court could have focused on the literal meaning of the FDA’s “by or under the supervision of a certified prescriber” requirement and reasoned that video calls achieve this.[29] Video calls have replaced in-person interactions for the majority of Americans due to COVID. Things that we would have never thought could be done virtually are now commonly occurring via video calls. At a virtual appointment, a provider can closely observe the patient taking the medicine, then monitor them for side effects. Even for in-person visits, the provider cannot watch the patient for the entirety of the time that side effects may occur. Thus, virtual visits could have satisfied the FDA’s stipulation for mifepristone in light of COVID.

Misinformation from the government contributed to the spread of COVID in the U.S.[30] The Supreme Court could have helped counteract the spread of COVID by discussing the benefits of telemedicine. The Court could have also quelled fears of advancing technology by emphasizing that telemedicine provides safe and effective medical care. As a well-respected institution, the Court should have done its part to legitimize telemedicine. Instead, the Court failed to appreciate the potential implications of its decision on telemedicine.

V. Conclusion

The Court should have recognized the importance of telemedicine during COVID and upheld the federal court’s preliminary injunction waiving the in-person requirement for mifepristone. Now, the Biden administration should nullify the Court’s decision by getting rid of the in-person requirement for mifepristone and allow patients to obtain the medicine after a virtual visit with their doctor. As of now, COVID still poses a threat that telemedicine is best equipped to eliminate.  


[1] Ctrs. for Disease Control & Prevention, Trends in the Use of Telehealth During the Emergence of the COVID-19 Pandemic, Centers for Disease Control and Prevention (Oct. 30, 2020) https://www.cdc.gov/mmwr/volumes/69/wr/mm6943a3.htm.

[2] Marc Zarefsky, 5 Huge Ways the Pandemic has Changed Telemedicine, American Medical Association (Aug. 26, 2020), https://www.ama-assn.org/practice-management/digital/5-huge-ways-pandemic-has-changed-telemedicine?gclid=Cj0KCQiA34OBBhCcARIsAG32uvM52Rm7oIYwv6W-_FWyxegJTXaxNbDxF6_3fivIvwOICZ_CBpiIsnEaAuYZEALw_wcB.

[3] Andrei Zimiles, Four New Statistics that Prove that Telemedicine isn’t just a Pandemic Fad, Medical Economics (July 8, 2020), https://www.medicaleconomics.com/view/four-new-statistics-that-prove-that-telemedicine-isn-t-just-a-pandemic-fad.

[4] U.S. Dep’t of Health & Human Servs., HHS Issues New Report Highlighting Dramatic Trends in Medicare Beneficiary Telehealth Utilization amid COVID-19, U.S. Department of Health & Human Services (July 28, 2020), https://www.hhs.gov/about/news/2020/07/28/hhs-issues-new-report-highlighting-dramatic-trends-in-medicare-beneficiary-telehealth-utilization-amid-covid-19.html.

[5] Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 580 (2021).

[6] Id. at 579.

[7] Food & Drug Admin., Questions and Answers on Mifeprex, Food and Drug Administration (Apr. 12, 2019) https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifeprex.

[8] Id.

[9] Am. Civil Liberties Union, ACOG Led Coalition of Medical Experts and Reproductive Justice Advocates as Plaintiffs in the Lawsuit, American Civil Liberties Union (July 13, 2020) https://www.aclu.org/press-releases/federal-court-blocks-fda-restriction-unnecessarily-imposes-covid-19-risks-patients.

[10] Jaclyn Diaz, Supreme Court OKs White House Request to Limit Abortion Pill Access During Pandemic, National Public Radio (Jan. 13, 2021) https://www.npr.org/2021/01/13/956279232/supreme-court-oks-white-house-request-to-limit-abortion-pill-access-during-pande.

[11] Michael Kunzelman, Federal Judge Rules Women Can Get Abortion Pill Without Doctor Visits, Public Broadcasting Station (July 13, 2020) https://www.pbs.org/newshour/health/federal-judge-rules-women-can-get-abortion-pill-without-doctor-visits.

[12] Id.

[13] Diaz, supra note 9.

[14] Id.

[15] Food & Drug Admin. v. Am. Coll. of Obstetricians & Gynecologists, 141 S. Ct. 578, 579 (2021).

[16] Id. at 578-579.

[17] Id. at 579.

[18] Id.

[19] Id.

[20] Id.

[21] Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 854 (1992).

[22] Id. at 837.

[23] Id.

[24] Id.

[25] Food & Drug Admin., 141 S. Ct. at 578.

[26] Id.

[27] Holly Yan, These 6 States Have Only 1 Abortion Clinic Left, CNN (June 21, 2019) https://www.cnn.com/2019/05/29/health/six-states-with-1-abortion-clinic-map-trnd/index.html.

[28] Ctrs. for Disease Control & Prevention, Telemedicine – What Does it Mean and Why Should You Care?, Centers for Disease Control and Prevention (Sept. 15, 2020) https://www.cdc.gov/coronavirus/2019-ncov/global-covid-19/telemedicine.html. 

[29] Food & Drug Admin., supra note 7.

[30] Rem Rieder, Trump’s Statements About the Coronavirus, Fact Check (Mar. 18, 2020) https://www.factcheck.org/2020/03/trumps-statements-about-the-coronavirus/.

Predictive Policing Technology: Fourth Amendment and Public Policy Concerns

Photo by Rishabh Varshney on Unsplash

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

Police have always striven to predict the people and places involved in criminal activity in order to prevent crime from happening in the first place.[1] In recent years, software companies have started developing new technology to help law enforcement with this goal.[2] “Predictive Policing Technology” (“PPT”) is software programming that analyzes large sets of crime data to identify the most likely locations, perpetrators, and victims of future crime.[3] For example, PredPol, one of the most dominant predictive policing technologies on the market, runs crime data through a series of algorithms and pinpoints 10 to 20 “hot spot” areas an officer is most likely to see crime over his or her next shift.[4]

Dubbed a “holy grail of law enforcement,” PPT has become a multi-million dollar business, praised for its cost-effectiveness, progressivism, and ability to reduce crime.[5] However, many of the nation’s largest police departments have recently withdrawn their support of these programs,[6] and numerous independent organizations, such the American Civil Liberties Union, have openly criticized PPT for its perpetuation of racial bias and profiling in law enforcement, questionable efficacy, and, most notably, its potential to infringe on people’s fourth amendment rights.[7] PPT has not been extensively considered by courts, as the technology is still relatively new; however, the Fourth Circuit Court of Appeals recently issued an en banc decision discussing the issues surrounding PPT and its relation to the fourth amendment.[8]

Part II of this article will provide a brief overview of the fourth amendment and its exceptions. Part III will summarize the Fourth Circuit’s decision in United States v. Curry and its discussion of PPT. Part IV will explore the dangers of PPT as it relates to the “reasonableness” requirement of the fourth amendment and various public policy concerns and will advocate for greater regulation and monitoring of PPT.

II. The Fourth Amendment

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and states that “no Warrants shall issue, but upon probable cause.”[9] The amendment’s protection not only extends to unreasonable searches of personal property, such as homes and cars, but also to the search and seizure of one’s person, including “brief investigatory stops” by law enforcement.[10]

The Supreme Court has articulated certain exceptions to the fourth amendment’s warrant requirement that center around the “reasonableness” of a search or seizure. One exception is the “Terry stop” which allows officers to conduct brief investigatory stops without securing a warrant if they have a reasonable belief that “criminal activity may be afoot” and that the person they stop “may be armed and presently dangerous.”[11]

Another exception is the “exigent circumstances” doctrine, which applies when an emergency arises and the needs of law enforcement are so compelling that a warrantless search is objectively reasonable under the fourth amendment.[12] The Supreme Court recognizes only a few “emergency conditions” that rise to the level of “exigent,”[13] one of which being the need to “protect individuals who are threatened with imminent harm.”[14] This is known as the “emergency aid” exception and applies when an urgent situation arises that affects someone’s health and/or safety (such as the need to break down the door of a house to rescue the occupants).[15] The exigent circumstances doctrine typically applies only to the warrantless entry and search of private property, as opposed to the search and seizure of a person, but courts have allowed suspicionless searches of a person when officers can narrowly target their searches based on specific information about a known crime and a controlled geographic area.[16] The Fourth Circuit relied on this exception when examining PPT.

III. United States v. Curry

In July 2020, the Fourth Circuit Court of Appeals issued an en banc decision addressing whether the fourth amendment’s exigent circumstances doctrine justified the suspicionless search of Billy Curry, Jr.[17] Curry was charged with possession of a firearm by a convicted felon after police officers found a revolver on his person during a search.[18] The police officers who searched Curry were responding to reports of gunfire in Curry’s apartment complex, and these officers were specifically assigned to monitor this area after the department’s PPT registered an uptick in shootings and homicides within the preceding months.[19] Instead of stopping everyone close to the location of the reported gunshots, the officers focused their search on a public park at the rear of the apartment complex and only stopped people who were acting “suspicious.”[20] Curry was walking alone in the park when he was ultimately stopped and searched as a result of the officers’ actions is accordance with the PPT.[21]

In an 8-6 decision, the 4th Circuit agreed with the district court’s decision to grant Curry’s motion to suppress evidence of his revolver based on the unreasonable search that led to its discovery.[22] The court determined that the officers did not conduct a valid Terry stop, nor did the exigent circumstances doctrine apply because the police’s searches were not isolated to a geographic area with clear boundaries or to a discrete group of people.[23]

The concurring and dissenting opinions in Curry address the use of PPT and the various constitutional and public policy concerns it raises. The concurring judges argue that reliance on PPT may have a detrimental impact on the fourth amendment rights of people living in high crime areas and perpetuate racial bias and profiling within the criminal justice system.[24] The dissenting judges not only disagree with the Court’s holding that the conduct of the officers fell outside the scope of the exigent circumstances doctrine, but also argue that PPT makes communities safer and ensures that poorer, high-crime areas are not abandoned by law enforcement.[25]

IV. Discussion

“Predictive policing” in the broadest sense has always been a technique used by police, even if subconsciously. Police departments and their officers develop an idea of which parts of town are more prone to crime than others, what times of the day, week, and year crimes most often occur, and other factors learned through time and experience. However, there is a natural check on this system as people know that human intuition is not always accurate or perfectly objective. The danger of PPT is that it operates under a veil of objectivity. Programs like PredPol analyze decades of crime data, weather patterns, and other variables and then spit out the coordinates of a city block where the next burglary is likely to occur.[26] This result is more easily accepted as accurate and less biased than an officer acting on a “hunch.” But the very data these programs use is riddled with human error and biases.

One concern of PPT is that it will compromise people’s fourth amendment rights. This technology also raises significant public policy concerns, including the risk of promoting racial bias in policing. The following parts will explore each concern in turn.

A. Fourth Amendment Concerns

Arguably the most pressing danger of PPT is the effect its perceived objectivity and accuracy may have on fourth amendment interpretation, specifically the fourth amendment’s reasonableness requirement. Predictive policing tools may make it easier for police to find that individuals meet the reasonable suspicion standard, justifying more stops.[27]

The Supreme Court recognizes that a predictive profile can be a relevant, if not controlling, factor in finding reasonable suspicion, and a computerized profile might give more credence to an officer’s finding of reasonable suspicion if the officer’s target happens to be in a crime “hot spot.”[28] For example, absent predictive technology, if a patrolling officer saw a person looking into a parked car’s window, this alone would not be deemed sufficient activity to warrant a search of the person for suspected car theft.[29] However, if the officer was patrolling the street based on a predictive program’s “tip” that a car theft would likely occur in the area, the officer would have a stronger argument that he had reasonable suspicion to stop and search the person.

The court in Curry was concerned about the deterioration of the fourth amendment under these technological advancements, especially for those living in areas with higher crime rates. Despite the fact that PPT had indicated that there would likely be a shooting in Curry’s neighborhood and that gunfire had been reported, the court declined to find that the officers had reasonable suspicion to search Curry.[30] The court maintained that a person’s presence in a high-crime area cannot alone create reasonable suspicion.[31] Concurring, Judge Wynn went on to say that if the court had decided otherwise, it would give officers too much discretion to make suspicionless stops in similar circumstances.[32]

Further, Judge Gregory conceded in his concurring opinion that PPT may become an effective tool for law enforcement, but noted that it creates greater tension between police performing their duties and the fourth amendment rights of those being policed.[33] The constitution demands a balance between keeping society safe and protecting individual liberty. In Gregory’s words, “[i]f merely preventing crime was enough to pass constitutional muster, the authority of the Fourth Amendment would become moot.”[34] As technology changes rapidly, law enforcement, courts, and society as a whole must be prepared to ensure that the changes do not detrimentally impact already-existing rights.

B. Public Policy Concerns

Another danger of PPT is that it will reinforce and perpetuate racial bias in the criminal justice system. Proponents of PPT argue that the algorithm can predict future crimes more accurately and objectively than police officers relying on intuition alone, helping to combat racial bias in the system.[35] However, as Judge Thacker stated in Curry,“[t]echnology cannot override human flaws. It stands to reason that any computer program or algorithm is only as good as the data that goes into it.”[36]

The data used by PPT is far from objective as historical crime data is infected with years of racial bias. Racial and ethnic minorities comprise a disproportionate share of the population in urban and traditionally “high crime” areas, meaning that they are disproportionately represented in the crime statistics of those areas.[37] The use of this data produces a biased and inaccurate picture of a city’s crime landscape and assigns officers to “high crime” areas that hold a disproportionate number of racial and ethnic minorities. Further, recent studies show that some police departments rely on “dirty data”—data “derived from or influenced by corrupt, biased, and unlawful practices,” including discriminatory policing and manipulated crime statistics—to run their predictive policing systems.[38] This creates a circularity problem: if historical crime data indicates that a low-income, urban area is a crime “hot spot,” and an increased number of officers are assigned to constantly patrol that area, any arrests or convictions in that area will feed back into the system and reinforce the conclusion that the area is at high risk for crime. As the stereotypes of these communities are reinforced by data, officers may feel more justified in their search and seizure of members of these communities.

 Crime data is also notoriously incomplete and inaccurate.[39] The Department of Justice reports that half of crimes with victims go unreported, leading to incomplete police records.[40] Police officers are also susceptible to human error and inevitably make mistakes in their paperwork, and these mistakes are fed into the predictive policing system. Further, arrest data is inconsistently used in these programs, potentially leading to overstated results. Independent audits of several major police departments revealed that arrest statistics were used by their predictive policing programs to determine crime hotspots, regardless of whether the arrests ultimately resulted in charges or convictions.[41] The use of arrest data is problematic because this data may overemphasize the presence of crime in a particular area since not all arrests lead to charges or convictions.

A final concern of PPT is that too little is known about its effectiveness at preventing crime. Early implementers of PPT have praised it for its ability to decrease crime rates in the departments’ cities.[42] However, very little independent data exists to verify the methodology of predictive technology. Of the few independent studies that examined PPT methodology, researchers found that the software had no statistically significant impact on crime reduction.[43] Numerous departments across the country have ended their use of PPT after determining that it did not help reduce crime and provided information already being gathered by officers patrolling the streets.[44]

V. Conclusion

Upon the Santa Cruz Police Department’s initial adoption of PPT in 2011, the department’s crime analyst stated that “[t]he worst-case scenario is that [the PPT] doesn’t work and we’re no worse off.”[45] Despite best intentions, PPT has the potential to dramatically impact fourth amendment interpretation, as well as the day-to-day lives of many Americans. Predictive technology relies on inherently biased data that may lead to over policing of areas disproportionately populated by racial and ethnic minorities. The effects of PPT may also impact the reasonable suspicion interpretation of the fourth amendment, resulting in more frequent suspicionless and discretionary searches and seizures by police.

If programed and used correctly, PPT has the potential to be a useful supplementary tool to police officers as they strive to achieve their goal of keeping communities safe. But as it stands now, the costs of this technology outweigh the benefits. Predictive programming must do a better job of controlling for bias in data, and independent researchers must take on a greater role in monitoring these programs for accuracy. Finally, courts must remain on notice of these rapid technological changes and ensure that constitutional rights are not compromised by rigorously applying existing fourth amendment standards to determine whether PPT stops are, in fact, justified.


[1] Andrew G. Ferguson, Policing Predictive Policing, 94 Wash. U. L. Rev. 1109, 1123 (2017).

[2] Nate Berg, Predicting crime, LAPD-style, The Guardian (Jun. 25, 2014), https://www.theguardian.com/cities/2014/jun/25/predicting-crime-lapd-los-angeles-police-data-analysis-algorithm-minority-report.

[3] Tim Lau, Predictive Policing Explained, Brennan Center for Justice (Apr. 1, 2020), https://www.brennancenter.org/our-work/research-reports/predictive-policing-explained.

[4] Ellen Huet, Server And Protect: Predictive Policing Firm PredPol Promises To Map Crime Before It Happens, Forbes (Mar. 2, 2015), https://www.forbes.com/sites/ellenhuet/2015/02/11/predpol-predictive-policing/?sh=590d8ca04f9b.

[5] Andrew G. Ferguson, Predictive Policing and Reasonable Suspicion, 62 Emory L. J. 259, 269-70 (2012).

[6] Lau, supra note 3; Leila Miller, LAPD will end controversial program that aimed to predict where crimes would occur, Los Angeles Times (April 21, 2020), https://www.latimes.com/california/story/2020-04-21/lapd-ends-predictive-policing-program?eType=EmailBlastContent&eId=f3aa6ff4-fdc5-4596-b96a-2c0fe443df39.

[7] Predictive Policing Today: A Shared Statement of Civil Rights Concerns, American Civil Liberties Union (Aug. 31, 2016), https://www.aclu.org/other/statement-concern-about-predictive-policing-aclu-and-16-civil-rights-privacy-racial-justice#:~:text=Predictive%20Policing%20Today%%203A%20A%20Shared%20Statement%20of%20Civil%20Rights%20Concerns&text=A%20growing%20number%20of%20police,or%20who%20will%20be%20involved.

[8] United States v. Curry, 965 F.3d 313 (4th Cir. 2020)(en banc)(8-6 decision).

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

[10] United States v. Kehoe, 893 F.3d 232, 237 (4th Cir. 2018).

[11] Terry v. Ohio, 392 U.S. 1, 30 (1968).

[12] Mincey v. Arizona, 437 U.S. 385, 393-94 (1978).

[13] Welsh v. Wisconsin, 466 U.S. 740, 749–50 (1984).

[14] Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018) (citing Kentucky v. King, 563 U.S. 452, 460 & n.3 (2011)).

[15] King, 563 U.S. at 460; Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963).

[16] United States v. Yengel, 711 F.3d 392, 396 (4th Cir. 2013) (citing Mincey, 437 U.S. at 392–94).

[17] Curry, 965 F.3d at 315.

[18] Id. at 318.

[19] Id.

[20] Id. at 325.

[21] Id.

[22] Id. at 316.

[23] Id.

[24] Id. at 344-45 (Thacker, J., concurring); Id. at 334 (Gregory, J., concurring); Id. at 336-37 (Wynn, J., concurring).

[25] Id. at 350-51, 355 (Richardson, J., dissenting); Id. at 346, 349 (Wilkinson, J., dissenting).

[26] Chandler Harris, Richmond, Virginia, Police Department Helps Lower Crime Rates with Crime Prediction Software, Government Technology (Dec. 21, 2008), https://www.govtech.com/public-safety/Richmond-Virginia-Police-Department-Helps-Lower.html.

[27] Lau, supra note 3.

[28] Reid v. Georgia, 448 U.S. 438, 441 (1980).

[29] Ferguson, supra note 5, at 308.

[30] Curry, 965 F.3d at 316.

[31] Id. at 331.

[32] Id. at 337 (Wynn, J., concurring).

[33] Id. at 334 (Gregory, J., concurring).

[34] Id.

[35] Lau, supra note 3.

[36] Curry, 965 F.3d at 345 (Thacker, J., concurring).

[37] United States v. Black, 707 F.3d 531, 542 (4th Cir. 2013).

[38] Lau, supra note 3.

[39] Ferguson, supra note 1, at 1146.

[40] Id. at 1146-47.

[41] Lau, supra note 3.

[42] Ferguson, supra note 5, at 270.

[43] Justin Jouvenal, Police are Using Software to Predict Crime. Is it a ‘Holy Grail’ or Biased Against Minorities?, The Washington Post (Nov. 17, 2016), https://www.washingtonpost.com/local/public-safety/police-are-using-software-to-predict-crime-is-it-a-holy-grail-or-biased-against-minorities/2016/11/17/525a6649-0472-440a-aae1-b283aa8e5de8_story.html.

[44] Id.

[45] Erica Goode, Sending the Police Before There’s a Crime, N.Y. Times (Aug. 15, 2011), https://www.nytimes.com/2011/08/16/us/16police.html.

The United States Prison System: Is it Time for a CHANGE?

Photo by Warren LeMay via Wikimedia Commons

Grace Monzel, Associate Member, University of Cincinnati Law Review

I. Introduction

The United States is the world leader in mass incarceration.[1] Mass incarceration is defined as extreme rates of imprisonment as compared to historical rates of imprisonment.[2] According to the Global Alliance for Behavioral Health and Social Justice, “nearly 1 in every 100 adults in the United States is in prison or jail, a rate that is 5-to-10 times higher than rates in other democracies.”[3] Further, “since 1970, our incarcerated population has increased by 700% ­­–  2.3 million people in jail and prison today, far outpacing population growth and crime,” according to the ACLU.[4] These statistics have begged the questions: is this the best and most effective system and if not, can it be changed? This article will examine one alternative in particular—a diversion program in Ohio aptly named the CHANGE Court.

II. Background

A crucial place to begin answering these questions is to understand why prisons were created in the United States and how the prison system has evolved overtime. Professor Valerie Jenness from the University of California-Irvine Department of Criminology, Law & Society provides a brief historical answer: The first prison in America was founded in 1790 by the Pennsylvanian Quakers with the goal of creating a system that was less cruel and brutal than dungeon prisons and jails.[5] Prisoners could read scriptures and repent in order to become reformed prisoners.[6] Since the 1970s, there has been a huge expansion of prisons, due in large part to increased crime rates as well as some people viewing prisoners as incapable of being rehabilitated.[7] According to Professor Jenness’ article The United States Prison System, “today people seem to view the prison system as one that is less about rehabilitating criminals and turning them into functioning members of society and more about punishments.”[8]

Overall, prisons were originally created with the focus of rehabilitating people into society. With the advent of mass incarceration and the war on drugs, prisons have become overcrowded and punishment-based.[9] However, Ohio has begun to find and implement effective solutions. Judge Heather Russell, a graduate of the University of Cincinnati School of Law, has presided over CHANGE Court in Hamilton County.[10] Hamilton County CHANGE Court is a specialized Court with a judge-supervised treatment program for those charged with prostitution and related offense and victims of Sex Trafficking in Hamilton County.[11] It is voluntary and includes regular court appearances before the CHANGE Court Judge.[12] Those who take part in CHANGE Court work with a team of professionals to improve their life and work on skills to successfully stay out of the criminal justice system.[13] According to the Hamilton County Courts’ website, “CHANGE Stands For: Changing Habits And setting New Goals is Empowering…. There are four phases in CHANGE Court: (1) Orientation, (2) Compliance and Stabilization, (3) Growth and Development, (4) Community Reintegration.”[14]

Participants of CHANGE Court come from all walks of life, but most have dealt with drug addiction, leading them to turn to prostitution.[15] Further, many are homeless and unemployed when beginning CHANGE Court.[16] The program helps participants achieve job prospects, and it provides behavioral and mental health services, educational opportunities, family reconnections, trauma services, independent living, medical services, and more.[17] People who are eligible include those with current misdemeanor charges of prostitution or solicitation, along with related offenses, or a new misdemeanor arrest with a history of prostitution or solicitation.[18] They must be competent, have the cognitive ability to understand and voluntarily participate in CHANGE Court, and be appropriate for intensive supervision probation and case management services and treatment.[19] Participants may be eligible for expungement after successful completion of the program; the final decision rests with the Prosecutor.[20]

CHANGE Court has proven to be effective. Christina Kelly, who is 2 years drug-free, stated in a video on the Hamilton County Courts’ website, “I am proof that programs such as CHANGE Court and Drug Rehabilitation Centers work for those who want change. I came into CHANGE Court with nothing, no self-esteem, no relations with any family, no friends, no place I called home. Today this addict that you fight for knows she is so much more than an addict.”[21] Amanda Taylor, who is 2 years, 10 months drug-free, also stated in the video: “I’ve learned many things through Change Court, but most importantly I learned how to live and not just exist. I can honestly say that today because of Change Court I’m not only a productive member of society, but I want to be a productive member.”[22] Lastly,  Jackie Frommel, who is 10 months drug-free, stated in the video: “I’m grateful for Judge Russell for giving me the second chance at life. I got a great relationship with my mom and my two kids and I never thought I would have that, and I do. I’m starting to love myself.”[23]

III. Analysis

Based on CHANGE Court’s success, implementing more courts of this nature, especially those dedicated to rehabilitating people who have committed drug offenses, could be an effective way to reduce mass incarceration.  There are only three courts like CHANGE Court in the whole state of Ohio.[24] Ohio could greatly benefit from more programs like CHANGE Court because drug possession-crimes are the leading type of crime for which people are sent to Ohio prisons most years.[25] Further, programs with parallel missions to CHANGE Court could help reduce overcrowded prisons and mass incarceration in Ohio and the rest of the United States, as the nation’s incarcerated population has increased 700 percent since 1970, and Ohio’s state prison population has had a 435 percent increase, according to statistics compiled by the state prisons agency.[26]

Implementing more programs like CHANGE Court could also reduce the amount of rearrests after prisoners are released. Over three-fourths (76.9%) of state drug offenders released from state prison were rearrested within five years.[27] Statistics for rehabilitation compared to strict jail time are strong. Warren County began their drug court in 2016 and 22 of the 40 women that enrolled graduated and only 2 were found to have committed new crimes.[28] Further according to the Ohio Addiction Recovery Center, “75% of women who graduated from the Montgomery County drug court had no new crimes on their records and only 11% were found to have committed new crimes, three times less than the county’s 36% repeat offender rate.”[29] Programs based on the CHANGE Court model could have a significant impact reducing crowded prisons as Franklin County drug court judge Scott Van Der Karr estimates that 80% of all crimes are driven by substance abuse issues.[30]

IV. Conclusion

Overall, many believe tackling addiction issues with inpatient rehabilitation compared to strict criminal penalties is an effective way for Ohio to end rearrests in the criminal justice system.[31] Ronette Burkes, who worked at the Ohio Reformatory for Women (ORW) for 7 years, has said, “We have a system where we are sending people to prison for crimes like drug abuse and things like that… We have a responsibility to ensure that the people who go home have a chance, have an opportunity for a different life… our recovery services programs are absolutely necessary for that.”[32] The United States has become the world leader for mass incarceration. The prison system is overcrowded and reoffenders are common. Programs like CHANGE Court could offer an effective alternative solution to imprisonment and punishment, one that helps people take control of their lives and become better members of society. Is America ready to CHANGE?


[1] The History of Mass Incarceration, Brennan Center For Justice (July 20, 2018), https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration

[2] Mass Incarceration, Oxford Bibliographies (Apr. 24, 2012), https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0033.xml

[3] Mass Incarceration, Global Alliance for Behavioral Health and Social Justice (last visited Feb. 8, 2021), https://www.bhjustice.org/mass-incarceration

[4] Mass Incarceration, ACLU (last visited Feb. 8, 2021),  https://www.aclu.org/issues/smart-justice/mass-incarceration

[5] The United States Prison System History, Valerie Jenness (Aug. 27, 2016), https://valeriejenness.com/history-of-the-united-states-prison-system/

[6] Id.  

[7] Id.

[8] Id.

[9] The Drug War, Mass Incarceration and Race, Drug Policy (Jan. 25, 2018), https://drugpolicy.org/resource/drug-war-mass-incarceration-and-race-englishspanish

[10] Municipal Court Judge Heather S. Russell, Hamilton County Courts (last visited Feb. 8, 2021), https://hamiltoncountycourts.org/index.php/municipal-judges/municipal-court-judge-heather-s-russell/

[11] Hamilton County CHANGE Court, Hamilton County Courts (last visited Feb. 8, 2021),  https://hamiltoncountycourts.org/index.php/change-court-2/

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Ohio’s Issue 1 Diagnosed a Prison Problem, but Solutions Complicated, The Columbus Dispatch (Dec. 3, 2018), https://www.dispatch.com/news/20181203/ohios-issue-1-diagnosed-prison-problem-but-solutions-complicated

[26] Id.

[27] Recidivism Among Federal Drug Trafficking Offenders, United States Sentencing Commission (last visited Feb. 8, 2021),  https://www.ussc.gov/research/research-reports/recidivism-among-federal-drug-trafficking-offenders

[28] Ohio’s Female Prison Population Soars from Drug Arrests, Ohio Addiction Recovery Center (June 14, 2019),  https://www.ohioarc.com/ohios-female-prison-population-soars-from-drug-arrests/

[29] Id.

[30] Id.

[31] Id.

[32] Id.

Do the Blackwater Pardons Violate International Law?

Omar Chatriwala of Al Jazeera English, via Wikimedia Commons

Paige Richardson, Associate Member, University of Cincinnati Law Review

I. Introduction

On September 16, 2007, a car bomb exploded in the vicinity of a U.S. diplomat working in Baghdad, Iraq.[1] A security team from defense contractor Blackwater Worldwide evacuated the diplomat to a secure location.[2] During the operation, some of the Blackwater guards fired shots in Nisur Square, an area through which the diplomat never passed.[3] Although the guards later claimed that they did not fire the first shot, the gunfire in Nisur Square ultimately ended with fourteen Iraqi civilians dead and twenty more wounded.[4] Among the dead were ten men, two women, and two children, ages nine and eleven.[5]

After a lengthy prosecution process, four of the guards—Slatten, Slough, Liberty, and Heard—were found guilty of first-degree murder and voluntary manslaughter for their roles in the deaths.[6] Slatten was sentenced to life in prison, while Slough, Liberty, and Heard each received thirty-year sentences, which were later reduced.[7] But on December 22, 2020, President Trump pardoned all four guards.[8]

The pardons have drawn swift condemnation. Among those to speak out against the pardons are the victims of the attack,[9] the lead FBI investigator on the case,[10] Gen. David Petraeus and other top American officials in charge of U.S. policy in Iraq at the time of the shootings,[11] and United Nations experts.[12] Jelena Aparac, the Chair-Rapporteur of the U.N.’s Working Group on the use of mercenaries, called the pardons “an affront to justice.”[13] Ms. Aparac also claimed the “pardons violate US obligations under international law and more broadly undermine humanitarian law and human rights at a global level.”[14] Several U.N. experts have called on parties to the Geneva Conventions to condemn the pardons.[15] This article will examine whether the Blackwater pardons have violated U.S. obligations under international law.

II. International Law

International law has two primary sources: treaties and Customary International Law.[16] Treaties are binding agreements between two or more nations.[17] For a treaty to be binding, it must be signed by a head of state or appropriate dignitary and ratified through the proper domestic procedures.[18] In the U.S., treaties are ratified through a two-thirds vote in the Senate.[19] According to the 1969 Vienna Convention on the Law of Treaties, when a treaty is signed but not ratified, the state is obligated to “refrain from acts which would defeat the object and purpose of a treaty . . . until it shall have made its intention clear not to become a party to the treaty.”[20]

Under Article VI of the U.S. Constitution, treaties are considered “the supreme Law of the Land,”[21] so long as they have been properly implemented.[22] In most cases, the U.S. does not consider treaties to be self-executing.[23] This means that the treaty obligations only become judicially enforceable upon the passing of national legislation.[24] When it is unclear whether a treaty is non-self-executing or self-executing, courts decide.[25] If there is no national legislation and the treaty is non-self-executing, there is no national enforcement mechanism for treaty obligations in the U.S.[26]

International law is also significantly based on Customary International Law, or “CIL.”[27] CIL is a body of universal norms, standards, and practices that are accepted as international standards.[28] These norms are assessed through state practice and opinio juris, a sense of legal obligation, to determine their universality.[29] CIL is binding upon all states in the absence of repeated objection or contrary national legislation.[30] U.S. courts have held that CIL does not apply in cases where contrary national legislation has been adopted; however, courts are bound to interpret U.S. statutes consistently with CIL wherever possible.[31]

Among the types of international law is International Humanitarian Law (IHL), which governs the initiation (jus ad bellum) and waging (jus in bello) of war.[32] Perhaps the most important sources of IHL are the 1949 Geneva Conventions and their Additional Protocols. The four Geneva Conventions govern the treatment of wounded[33] and shipwrecked[34] soldiers, prisoners of war,[35] and civilians[36] in times of armed conflict. The first additional Protocol further restricts the adverse treatment of the classes protected by the four Conventions and adds rules for the treatment of significant cultural objects.[37] The second Protocol more clearly defines the “humane treatment” that is to be given to those members of the protected classes under the Conventions.[38] Finally, the third Protocol adds to the list of emblems used to identify humanitarian and aid workers in conflict areas.[39] The United States has signed and ratified all four of the Conventions and Protocol III.[40] The United States has signed but not ratified Protocols I and II.[41]

Under the fourth Geneva Convention, “the willful killing”[42] of “persons taking no active part in the hostilities,”[43] including civilians and wounded, detained, or surrendered soldiers, constitutes a grave breach. Under each of the four Conventions, as well as CIL,[44] member states are obligated to search for, investigate, and prosecute or extradite persons who have allegedly breached any of the Geneva Conventions.[45]

III. Analysis

As explained above, the U.S. has signed and ratified each of the four Geneva Conventions.[46] Most U.S. Courts have found that the Geneva Conventions are non-self-executing and therefore do not create a judicially enforceable legal mechanism on their own.[47] However, the specific international obligations under consideration in the fourth Geneva Convention protecting citizens in times of war are supplemented by 18 U.S. Code § 2441 on war crimes, which states any conduct “defined as a grave breach” in any of the Geneva Conventions will be subject to prosecution in the U.S.[48] This means that even if the Geneva Conventions are non-self-executing treaties, Congress has implemented specific legislation enshrining the Convention in domestic law. The U.S. is therefore obligated to search for, investigate, and prosecute or extradite persons who have allegedly breached any of the Geneva Conventions.[49] The United States met this obligation by prosecuting four members of the Blackwater team.

Despite the required prosecution, the pardons certainly seem to undermine the purported purpose of the Geneva Convention and the U.S. War Crimes statute—holding those found guilty of committing war crimes accountable. In the past, a number of nations have also attempted to pardon or grant amnesty to war criminals.[50] In most cases, these pardons or grants of asylum have been deemed unconstitutional by their respective domestic courts or have incited significant international backlash resulting in revocation.[51] Despite this, there is no black letter law forbidding the granting of pardons to war criminals. In fact, Additional Protocol II states that broad amnesty should be applied following the cessation of armed conflict.[52] Since the ratification of Additional Protocol II, several judicial decisions and UN Security Council Resolutions have attempted to synthesize Geneva Convention IV with Additional Protocol II by creating an amnesty exception for war criminals.[53] According to sources such as the International Committee of the Red Cross, there is enough state practice and opinio juris on the matter of war crimes amnesties exceptions for it to be binding under CIL.[54]

CIL is only binding in the U.S. in absence of contrary legislation, though that legislation should be interpreted in line with CIL wherever possible.[55] Article II, Section 2, Clause 1 of the U.S. Constitution states: “[the President] shall have Power to grant Reprieves and Pardons for Offenses against the United States.”[56] This Executive power is practically limitless. Following the Civil War, the Supreme Court found that Congress could not change or limit the effects of a presidential pardon.[57] Later, when the Supreme Court again had the chance to limit presidential pardon powers, Chief Justice Taft wrote, “Our Constitution confers this discretion on the highest officer in the Nation in confidence that he will not abuse it.”[58] Recognizing the possibility of abuse, Chief Justice Taft continued,

“If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.”[59]

In other words, the pardon powers of the President are so broad that the power could be abused to the point of destroying the judicial system and the proper remedy would be impeachment, rather than limitations on Executive power.

The U.S. must meet its treaty obligations under the Geneva Conventions. These obligations are binding under IHL and CIL and are enshrined in domestic law under the U.S. War Crimes statute. However, international opinion as to the legitimacy of pardons or grants of amnesty for war crimes is binding only through CIL. CIL is binding on the U.S. except in cases where there is contrary legislation. Here, the President’s Constitutional grant of executive pardon powers is in contradiction of the CIL obligation to a pardon exception for war crimes. The U.S. is nevertheless obligated to interpret the contrary legislation—the pardon power—in congruence with CIL wherever possible. Because the Supreme Court has previously affirmed the unlimited scope of the President’s power to pardon any crime against the U.S., there is no way to reconcile the CIL pardon exception with the Constitutional grant to the President. Thus, the pardon power is superior law and the pardon exception for war crimes is not binding on the U.S.

Despite the non-binding nature of CIL in this case, there are other substantive legal arguments as to the unlawful nature of the Blackwater pardons. Some argue that the pardons themselves are war crimes under the law of command responsibility.[60] Others point out that the pardons subordinate U.S. military law and may implicate the President’s position as Commander in Chief.[61] However, these arguments also rely on obligations under military law, CIL, or treaties to supersede the Executive powers expressly granted by the Constitution and affirmed by the Supreme Court.

This does not preclude other international enforcement mechanisms. For example, Spanish courts have previously held that domestic grants of amnesty do not revoke Spanish universal jurisdiction over the prosecution of war crimes.[62] However, amnesty is granted prior to prosecution, so it is unclear in the case of pardons granted after prosecution if international courts apply any principle of double jeopardy. Additionally, extradition of the accused may not be feasible. The U.S. is not party to the International Criminal Court or the International Court of Justice. Further, the U.S. holds a permanent seat and veto rights on the UN Security Council. International enforcement of obligations that U.S. does not believe are binding upon it would be difficult, if not impossible.

Therefore, while the Blackwater pardons expressly undermine the purpose of the IHL, the Geneva Conventions, CIL, and the U.S.’s own War Crimes statute, there is likely no violation per the U.S. interpretation of international law.

IV. Conclusion

In conclusion, the Blackwater pardons undermine the purpose and object of the Geneva Conventions as well as the U.S. War Crimes statute. While the pardons may be inhumane and a gross invalidation of international law and human rights, they do not violate international law as interpreted by U.S. domestic courts. The U.S.’s unlimited Executive power to pardon crimes supersedes the obligation to restrict pardons for those convicted of war crimes. That obligation is therefore not binding on the U.S., demonstrating the striking tension between the purpose of the International Humanitarian Law and its often contrary implementation in the U.S.


[1] U.S. v. Slough, 641 F.3d 544, 547 (C.A.D.C., 2011).

[2] Id.

[3] Id. at 548.

[4] Id.

[5] Dept. of Justice, U.S. Attorney’s office, Former Blackwater Employee Sentenced to Life Imprisonment for Murder in 2007 Shooting at Nisur Square in Iraq (2019) [hereinafter Dept. of Justice].

[6] Scott Neuman, Blackwater Guards Found Guilty in 2007 Shootings in Iraq, NPR (Oct. 22, 2014, 1:18 PM), https://www.npr.org/sections/thetwo-way/2014/10/22/358076714/blackwater-guards-found-guilty-in-2007-shootings-in-iraq.

[7] Dept. of Justice, supra note 5; Charlie Savage, Three Ex-Blackwater Guards Are Resentenced in Iraq War Massacre, NY Times (Sept. 5, 2019), https://www.nytimes.com/2019/09/05/us/politics/blackwater-guards-sentencing-iraq.html.

[8] Maggie Haberman and Michael S. Schmidt, Trump Pardons Two Russia Inquiry Figures and Blackwater Guards, NY Times (Dec. 22, 2020), https://www.nytimes.com/2020/12/22/us/politics/trump-pardons.html.

[9] Laurel Wamsley, Shock and Dismay After Trump Pardons Blackwater Guards Who Killed 14 Iraqi Civilians, NPR (Dec. 23, 2020, 5:44 PM), https://www.npr.org/2020/12/23/949679837/shock-and-dismay-after-trump-pardons-blackwater-guards-who-killed-14-iraqi-civil.

[10] Martin Pengelly, Lead FBI investigator in Blackwater case likens Iraq Massacre to My Lai, The Guardian (Jan. 2, 2021), https://www.theguardian.com/us-news/2021/jan/02/blackwater-trump-pardons-john-m-patarini-fbi.

[11] John Bowden, UN says Trump Blackwater pardons violate international law, The Hill (Dec. 30, 2020, 9:51 AM), https://thehill.com/homenews/administration/532065-un-says-trump-blackwater-pardons-violate-international-law?rl=1.

[12] US pardons Blackwater guards: An ‘affront to justice’ – UN experts, UN News (Dec. 30, 2020), https://news.un.org/en/story/2020/12/1081152.

[13] Id.

[14] Id.

[15] Id.

[16] Statute of the International Court of Justice, art. 38, ¶1.

[17] See Alexander Orakhelashvili, Akehurst’s Modern Introduction to International Law, 251-75 (8th ed. 2019).

[18] Id.

[19] U.S. Const. art. II, § 2.

[20] United Nations Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, https://www.refworld.org/docid/3ae6b3a10.html.

[21] U.S. Const. art. VI, § 2.

[22] See Orakhelashvili, supra note 17.

[23] See M.C. v. Bianchi, 782 F. Supp. 2d 127 (E.D.Pa., 2011).

[24] Id.

[25] Id.

[26] Id.

[27] Statute of the International Court of Justice, art. 38, ¶1.

[28] See The Paquete Habana, 20 S.Ct. 290 (1900).

[29] Id.

[30] Id.

[31] Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804).

[32] See ICRC, What is International Humanitarian Law?, Advisory Service on International Humanitarian Law (2004), https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf.

[33] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31.

[34]Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85.

[35] Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

[36] Geneva Convention Relative to the Protection of Civilian Persons in Times of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.

[37] Protocol Additions to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.

[38] Protocol II Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.

[39] Protocol III Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/615.

[40] Geneva Conventions and their Additional Protocols, Cornell Legal Information Institute, https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols#:~:text=The%20United%20States%20has%20signed,though%20it%20has%20signed%20them.

[41]Id.

[42] Geneva IV art. 147.

[43] Geneva IV art. 3(1)

[44] Customary IHL, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule158#Fn_499E7213_00013.

[45] See Geneva I art. 49; Geneva II art. 50; Geneva III art. 129; Geneva IV art. 146.

[46] Geneva Conventions and their Additional Protocols, supra note 40.

[47] See Noriega v. Pastrana, 559 U.S. 917 (2010) (Thomas, J., dissenting) (arguing that writ of certiorari should have been granted so the Court could resolve questions of the right to private action left open by the decision in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)).

[48] 18 U.S.C. §2441(c)(1).

[49] See Geneva I art. 49; Geneva II art. 50; Geneva III art. 129; Geneva IV art. 146.

[50] See, e.g., Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of Justice], 14/6/2005, “Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc.,” Fallos (2005-17-768) (Arg.); Masacre Las Hojas v. El Salvador, Case 10.287, Inter-American Commission on Human Rights (IACHR), 24 September 1992, available at: https://www.refworld.org/cases,IACHR,3ae6b69818.html [accessed 9 February 2021]; S.C. Res. 1315 (Aug. 14, 2000); Commission on Human Rights Res. 79 (April 25, 2002); U.N. Secretary-General, Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, ¶¶ 22-24, U.N. Doc. S/2000/915; Rep. of the S.C., at ¶ 62, U.N. Doc. S/2020/366.

[51] Id.

[52] Additional Protocol II art. 6(5).

[53] See Rule 159. Amnesty, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule159.

[54] Id.

[55] Charming Betsy, 6 U.S. at 118.

[56] U.S. Const. art. II, § 2, cl. 1.

[57] U.S. v. Klein, 80 U.S. 128 (1872).

[58] Ex parte Grossman, 267 U.S. 87, 121 (1925).

[59] Id.

[60] Gabor Rona, Can a Pardon Be a War Crime?: When Pardons Themselves Violate the Laws of War, Just Security (Dec. 24, 2020), https://www.justsecurity.org/64288/can-a-pardon-be-a-war-crime-when-pardons-themselves-violate-the-laws-of-war/.

[61] Noor Zafar, Trump’s War Pardons Are Sabotaging the Military Justice System, ACLU (Dec. 13, 2019), https://www.aclu.org/news/national-security/trumps-war-pardons-are-sabotaging-the-military-justice-system/.

[62] See Practice relating to Rule 159. Amnesty: Spain, ICRC IHL Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cou_es_rule159.

Let Them Eat Cake: Insufficient Government Responses to Food Insecurity During COVID-19

Photo by Claudio Schwarz on Unsplash

Rachel Harp, Associate Member, University of Cincinnati Law Review

I. Introduction

Food is a fundamental need that often goes unmet during times of crisis. The COVID-19 pandemic is no exception: food insecurity rates have skyrocketed and continue to rise.[1] Before the pandemic, food insecurity impacted approximately 35 million people in the U.S.–the lowest food insecurity rate since the 2008 financial crisis.[2] Near the end of 2020, more than 54 million people in the U.S. were food insecure.[3] Unsurprisingly, both food insecurity and COVID-19 have disproportionate impacts on communities of color.[4]

This article explores the emergency procedures addressing pandemic poverty and food insecurity implemented by Congress and the Trump Administration last year and why these procedures have been insufficient. The article will also discuss the role of food banks in filling gaps left by government assistance and the lack of sustainable food charities. This article will conclude with a discussion of President Biden’s “American Rescue Plan,” parts of which have already been implemented.[5]

II. 2020 Emergency Food Relief and Stimulus Checks

Reliable access to healthy food is key to surviving in normal times, but a raging health disaster like COVID-19 makes food security even more imperative.[6] Food insecurity is associated with several chronic illnesses that place individuals at higher risk of experiencing COVID-19 with severe complications.[7] There are a variety of systems that perpetuate food insecurity, but the insufficient federal response and varying state-by-state approaches to coronavirus last year have exacerbated food insecurity that already existed and created more food insecure households.[8]

Temporary emergency funding created by Congress and approved by former President Trump were minimal. The stimulus checks sent last year were likely not enough for families to pay for household needs and food.[9] States implemented Pandemic-Electronic Benefit Transfer (“P-EBT”) programs for school children who were on free and reduced lunch, but there were numerous distribution and administrative issues with P-EBT cards.[10]

The federal government also increased Supplemental Food and Nutrition Program (“SNAP,” also known as “food stamps”) allotments by 15% per household on a temporary basis that is extended each month.[11] The Trump Administration did not provide this increase to households receiving the maximum SNAP allotments.[12] SNAP alone often does not provide enough for families to survive each month, and unemployment benefits were an administrative nightmare to dispense in most states, leaving families in impossible financial situations.[13] There are also significant groups of people who qualify for SNAP and other government assistance but do not apply. For example, people who were food secure before the pandemic might not apply because of the stigma associated with SNAP and government assistance.[14] Legal immigrants might also not apply for SNAP even if they qualify due to fear of negative implications for their future citizenship statuses.[15]

III. The Role of Food Banks in the Pandemic and Poverty Promotion

Due to the insufficiency of federal programs in addressing food insecurity (both pre-pandemic and throughout), food banks and similar charities are left with the moral responsibility of feeding the nation.[16] Food banks operate on a supply and demand business model which perpetuates food insecurity.[17] Food banks receive leftover cans of off-brand foods that children in food secure households no longer want and take rotting produce from grocery chains to distribute.[18] Beyond the lack of dignity this entails, this system creates long-term problems.

Food banks are the main source of food for many Americans.[19] Unfortunately, food banks do not have healthy, sustainable food options, leaving individuals to live on “junk food,” or empty-calorie foods alone.[20] Food banks also struggle with food shortages during natural disasters and economic hardships, and they do not have many donations outside of the holiday season.[21] This leaves food banks with the unavoidable choice to limit services and food packages for families.[22] Families living on food banks alone certainly do not have enough food to live normal lives, much less combat COVID-19.[23] Individuals using both SNAP and food banks experience similar food shortages and impossible decisions about where to allocate their limited resources.

IV. The Potential Impact of President Biden’s American Rescue Plan[24]

President Biden’s American Rescue Plan seems more hopeful than the previous administration’s approach to coronavirus and its impacts, though it still has major downfalls. President Biden will issue executive orders to expand SNAP in similar ways, including a 15-20% benefit increase for families of four and extending this to households already receiving the maximum benefit.[25] This executive order will also provide $100 every two months to families of children who received free meals at school.[26] President Biden also has plans to release federal guidance on safely opening schools.[27] Further, the Biden Administration has announced upcoming stimulus checks and has already extended the moratorium on evictions and foreclosures.[28]

The effectiveness of SNAP expansion and stimulus checks at addressing food insecurity sweeping the U.S. is likely to be minimal. As previously discussed, SNAP allotments typically are not enough for families, leaving charities to cover the gaps.[29] Though an increase in monthly benefits would certainly help, it is unlikely to be sufficient to cover families in crisis. The groups of people who qualify for SNAP and choose not to apply are also left without recourse.

Children relying on school meals might fare better in 2021 than under the previous administration. Though the $100 every two months will have nearly negligent impact (especially in households with multiple children), the uniform federal guidance to school openings and procedures will provide local school districts the opportunity to reopen safely and begin providing much-needed meals to children on free and reduced lunch.[30]

The stimulus checks of $1,400 per person will likely have a similar impact as the $1,200 checks from last year.[31] Even combined with the $600 stimulus checks promised, they are unlikely to be enough for families struggling to make payments on mortgages, rent, utilities, and food.[32] Food insecure families will still be left relying on food banks and local charities, many of which are not able to accommodate the vast need. Houston Food Bank, the largest food distribution center in the U.S., experienced a 93% increase in the number of households served each week from March through December of 2020.[33] Not only are food banks struggling to accommodate needs, but they must also change or enhance safety protocols for food distribution, their employees and volunteers, and those they service.

Included in the American Rescue Plan is an effort to combat COVID-19 more aggressively than former President Trump, including mask mandates, efficient vaccine rollout, involvement with the World Health Organization (“WHO”), and other endeavors.[34] The stemming of the pandemic will have an indirect impact on combatting food insecurity, though food insecurity and economic issues from the pandemic are likely to be long-lasting.

V. Conclusion

Food insecurity is systemic and long-term. The number one indicator for poverty in the United States is medical bills.[35] Medicare for All is one way the Biden Administration could begin to address systemic issues in the U.S., like healthcare access and food insecurity. President Biden’s executive orders have already implemented positive changes, but the American Rescue Plan and other Biden Administration policies might still be insufficient at addressing the food needs of individuals across the United States. For now, food banks are left covering the gaps left by federal and state governments, as they have done for decades.[36]


[1] The federal government defines food insecurity as “the disruption of food intake or eating patterns because of lack of money and other resources.” Food Insecurity, HealthyPeople 2020 (Oct. 8, 2020), https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/food-insecurity; Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their.

[2] Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their.

[3] Id.

[4] Id.

[5] See generally, President-elect Biden Announces American Rescue Plan, https://buildbackbetter.gov/wp-content/uploads/2021/01/COVID_Relief-Package-Fact-Sheet.pdf. See also Jim Tankersley and Alan Rappeport, Biden Signs Orders to Expand Food Stamps and Raise Wages, but Says Economy Needs More Help, N.Y. Times (Jan. 22, 2021), https://www.nytimes.com/2021/01/22/business/biden-food-stamps-stimulus-checks.html.

[6] Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their.

[7] Id.

[8] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html.

[9] See Daniel Perez-Lopez and Charles Adam Bee, Majority Who Received Stimulus Payments Spending Most of It on Household Expenses, U.S. Census Bureau (June 24, 2020), https://www.census.gov/library/stories/2020/06/how-are-americans-using-their-stimulus-payments.html. See also How Did Americans Spend Their Stimulus Checks And How Did It Affect The Economy?, Peter G. Peterson Found. (Oct. 9, 2020), https://www.pgpf.org/blog/2020/10/how-did-americans-spend-their-stimulus-checks-and-how-did-it-affect-the-economy.

[10] Stacy Dean et al., Lessons From Early Implementation of Pandemic- EBT, Ctr. on Budget and Policy Priorities (Oct. 30, 2020), https://www.cbpp.org/research/food-assistance/lessons-from-early-implementation-of-pandemic-ebt.

[11] Press Release, USDA, Biden Administration Expands P-EBT to Benefit Millions of Low-Income and Food Insecure Children During Pandemic (Jan. 22, 2021), https://www.usda.gov/media/press-releases/2021/01/22/biden-administration-expands-p-ebt-benefit-millions-low-income-and.

[12] Jim Tankersley and Alan Rappeport, Biden Signs Orders to Expand Food Stamps and Raise Wages, but Says Economy Needs More Help, N.Y. Times (Jan. 22, 2021), https://www.nytimes.com/2021/01/22/business/biden-food-stamps-stimulus-checks.html.

[13] Press Release, USDA, Biden Administration Expands P-EBT to Benefit Millions of Low-Income and Food Insecure Children During Pandemic (Jan. 22, 2021), https://www.usda.gov/media/press-releases/2021/01/22/biden-administration-expands-p-ebt-benefit-millions-low-income-and (“USDA Says SNAP Benefits Are Inadequate for Most Participants…”).

[14] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html.

[15] Anna Gorman and Harriet Rowan, Why Millions of Californians Eligible For Food Stamps Don’t Get Them, Nat’l Pub. Radio (NPR) (May 1, 2018, 2:49 PM), https://www.npr.org/sections/thesalt/2018/05/01/606422692/why-millions-of-californians-eligible-for-food-stamps-dont-get-them.

[16] Mark Winne, Closing the Food Gap: Resetting the Table in the Land of Plenty 21-49, 69-81 (2009).

[17] Id. at 75-78.

[18] Id. at 69-81.

[19] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html.

[20] Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their.

[21] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html. See also, Food Security in the U.S.: Key Statistics and Graphics, USDA (Sept. 9, 2020), https://www.ers.usda.gov/topics/food-nutrition-assistance/food-security-in-the-us/key-statistics-graphics.aspx#trends.

[22] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html.

[23] Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their.

[24] President-elect Biden Announces American Rescue Plan, https://buildbackbetter.gov/wp-content/uploads/2021/01/COVID_Relief-Package-Fact-Sheet.pdf.

[25] Jim Tankersley and Alan Rappeport, Biden Signs Orders to Expand Food Stamps and Raise Wages, but Says Economy Needs More Help, N.Y. Times (Jan. 22, 2021), https://www.nytimes.com/2021/01/22/business/biden-food-stamps-stimulus-checks.html.

[26] Id.

[27] Id.

[28] Id.

[29] See e.g., Press Release, USDA, Biden Administration Expands P-EBT to Benefit Millions of Low-Income and Food Insecure Children During Pandemic (Jan. 22, 2021), https://www.usda.gov/media/press-releases/2021/01/22/biden-administration-expands-p-ebt-benefit-millions-low-income-and (“USDA Says SNAP Benefits Are Inadequate for Most Participants…”).

[30] President-elect Biden Announces American Rescue Plan, https://buildbackbetter.gov/wp-content/uploads/2021/01/COVID_Relief-Package-Fact-Sheet.pdf.

[31] Id. See e.g. Daniel Perez-Lopez and Charles Adam Bee, Majority Who Received Stimulus Payments Spending Most of It on Household Expenses, U.S. Census Bureau (June 24, 2020), https://www.census.gov/library/stories/2020/06/how-are-americans-using-their-stimulus-payments.html. See also How Did Americans Spend Their Stimulus Checks And How Did It Affect The Economy?, Peter G. Peterson Found. (Oct. 9, 2020), https://www.pgpf.org/blog/2020/10/how-did-americans-spend-their-stimulus-checks-and-how-did-it-affect-the-economy.

[32] Daniel Perez-Lopez and Charles Adam Bee, Majority Who Received Stimulus Payments Spending Most of It on Household Expenses, U.S. Census Bureau (June 24, 2020), https://www.census.gov/library/stories/2020/06/how-are-americans-using-their-stimulus-payments.html.

[33] Houston Food Bank COVID-19 Response (2020), https://www.houstonfoodbank.org/wp-content/uploads/2021/01/factsheet_covid19_cumulativethruDecember_20210120_FINAL.pdf.

[34] Rachel Siegel, What’s in Biden’s $1.9 trillion emergency coronavirus plan, Wash. Post (Jan. 14, 2021, 5:01 PM), https://www.washingtonpost.com/business/2021/01/14/biden-coronavirus-stimulus-plan/.

[35] How Expanded Medicaid Could Improve Food Security (Sept. 27, 2020, 5:21 PM), https://www.npr.org/2020/09/27/917554003/how-expanded-medicaid-could-improve-food-security.

[36] Megan Leonhardt, Covid-19 pandemic is the first time 40% of Americans have experienced food insecurity, CNBC (Nov. 19, 2020, 9:00 AM), https://www.cnbc.com/2020/11/19/covid-pandemic-first-time-many-americans-experienced-food-insecurity.html; Bridget Balch, 54 million people in America face food insecurity during the pandemic. It could have dire consequences for their health, American Association of Medical Colleges (Oct. 15, 2020), https://www.aamc.org/news-insights/54-million-people-america-face-food-insecurity-during-pandemic-it-could-have-dire-consequences-their; Mark Winne, Closing the Food Gap: Resetting the Table in the Land of Plenty 21-49, 69-81 (2009).