The Fight for the Equal Right to Fight: Does All-Male Draft Registration Violate the Fifth Amendment?

Photo by Israel Palacio on Unsplash

Logan Kline, Associate Member, University of Cincinnati Law Review

I. Introduction

While the United States hasn’t implemented military conscription in nearly a half-century, the legal possibility of a military draft for American men still remains. The draft lottery and conscription may seem like the object of history books for many Americans, but registration for the draft is still mandatory to this day for all American men.[1] Within 30 days of his 18th birthday, every man in the United States is required by the Military Selective Service Act to register with the Selective Service System, making him eligible for military conscription.[2]

The last draft in the United States was called on December 7, 1972, and the authority to induct into the military based on this draft expired on June 30, 1973.[3] The last draft lottery was held on March 12, 1975, assigning 366 numbers to all potential birth dates in a given year.[4] Each birth date was placed in a blue capsule and then drawn from a container to determine the order, with the birthdates pulled from the container first being the first called to serve.[5] For example, just one of the many birthdates called during the draft lottery was October 15, 1950. If a man was born the day before or after, he was free to go about his life, but being born on October 15th made him a soldier in the Vietnam War, whether he liked it or not.[6]

When the draft ended in 1973, women made up only two percent of the enlisted forces in the United State military and eight percent of the officer corps.[7] As of 2018, those numbers have grown exponentially, with women representing sixteen percent of the enlisted forces and nineteen percent of the officer corps.[8] However, if the draft were to be called tomorrow, only men would be called to action to defend the nation, as per 50 U.S.C.A. § 3802, which proclaims that registration is the duty of  “every male citizen of the United States.”[9] Recently, in National Coalition for Men v. Selective Service System, the exclusively male draft system was challenged as unconstitutional under the Fifth Amendment right to freedom from sex discrimination.[10]

II. Legal Background

Just last month, the United States Fifth Circuit Court of Appeals held that the male-only military draft did not violate the constitutional right against sex discrimination.[11] The case was filed by James Lesmeister, Anthony Davis, and the National Coalition for Men who sued the Selective Service System and its director for unlawful sex discrimination in the United States District Court for the Southern District of Texas.[12] The district court granted the plaintiffs a declaratory judgment, holding that the draft policy only requiring males to register violated the Fifth Amendment to the United States Constitution.[13] However, on appeal, the court in National Coalition for Men v. Selective Service System reversed the holding of the lower court, holding that United States Supreme Court precedent directly contradicted this finding, and that stare decisis bound the court to find in favor of the Selective Service System.[14]

In its decision, the Fifth Circuit recognizes the storied history behind this question.[15] As far back as 1980, President Jimmy Carter recommended to Congress that the laws governing conscription should be extended to cover women.[16] However, after consideration, Congress declined to follow the President’s urgings.[17] Just a year later, the United States Supreme Court would discuss the issue in Rostker v. Goldberg.[18] Chief Justice Rehnquist delivered the opinion for the Court, holding that the male-only registration requirement was well within the constitutional powers of Congress and therefore constitutional.[19] In the opinion, Justice Rehnquist highlighted that only men, not women, were allowed to occupy combat positions.[20] Rehnquist went on to write that the Court should defer to Congress on matters of how to maintain the military.[21] However, Justice Marshall saw the inherent failing at the heart of the majority’s opinion.[22] In his dissent, Justice Marshall wrote the following:

The Court today places its imprimatur on one of the most potent remaining public expressions of “ancient canards about the proper role of women”… It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation. Because I believe the Court’s decision is inconsistent with the Constitution’s guarantee of equal protection of the laws, I dissent.[23]

Since the Rostker decision, the male-only registration standard has been examined by Congress several more times, with the 2017 National Defense Authorization Act representing the most recent instance.[24] The version of this bill that passed the Senate would have included women in the mandatory registration, but by the time the bill became law, this portion was replaced.[25]

The Fifth Circuit Court reviewed all of this history, demonstrating a thorough knowledge of the historical canvas on which it painted.[26] However, the court held that it could not “disregard a Supreme Court decision as to the constitutionality of the exact statute at issue here because some key facts implicated in the Supreme Court’s decision have changed.”[27] Therefore, the Fifth Circuit Court of appeals, bound by the Supreme Court’s decision in Rostker, upheld the constitutionality of the all-male registration requirement.

III. Discussion

The factual basis that supported the Supreme Court decision in Rostker has all but fallen away, leaving the decision as an isolated vestige of an antiquated school of thought. Women proudly serve in the military today in ever-increasing numbers, burying Justice Rehnquist’s argument regarding women in combat positions. If the premise of a military draft is to supply the most able-bodied Americans to serve, then the logical conclusion is to include women in the registration requirement, which would more than double the size of the available draftees.

Beyond the shortcomings on a factual level, the Rostker holding also fails to uphold the Constitutional rights of both men and women. First, as Justice Marshall so eloquently opined in his dissent, a male-only draft reinforces the historical, oppressive norms regarding women’s place in society. If the United States reaches an impasse so extreme that the nation is forced to resort to the draft after a half-century dormancy, that challenge will call for the best and brightest the country has to offer. Women have a right to engage with their civic duty in the same way as men, and the Court’s failure to enforce this is a denial of women’s rights.

Further, requiring men by force of law to register for the draft violates their Fifth Amendment right against sex discrimination. If a war called for the revival of the draft, men would be forced into the service while women, who are equally capable of defending the nation and serving in all branches of the military, would not be. This is a clear violation of the Fifth and Fourteenth Amendments of the United States Constitution, as sex would be the deciding factor in eligibility for state-driven conscription.

IV. Conclusion

The Fifth Circuit in National Coalition for Men v. Selective Service System applied the law presented to it properly and cannot be faulted for following the binding precedent of the Supreme Court. However, the factual underpinnings of the Supreme Court’s decision in Rostker v. Goldberg have changed drastically in the past 39 years. Now, the onus falls on the current Supreme Court to grant cert. The Court must re-evaluate the flawed premise that women should not be called upon in the same way as men to defend our nation in its greatest time of need.

In anticipating the Court’s decision, it’s hard to imagine that it would not overturn the Fifth Circuit’s holding in National Coalition. The Fifth Circuit all but says that it would rule differently if it were given the latitude to do so under stare decisis. Further, this issue is not as facially charged with the same political divisiveness that has split the Court so often in recent years. In ruling against the male-only draft requirement, the Court could eliminate a remnant of inequity and move the United States one step closer to fulfilling its foundational promise of equality.


[1] Vietnam Lotteries, Selective Service System, https://www.sss.gov/history-and-records/vietnam-lotteries/#:~:text=The%20last%20draft%20call%20was,suspended%20on%20January%2027%2C%201976, (last visited Sept. 11, 2020).

[2] Id.; 50 U.S.C.A. § 3801 (West 2020).

[3] Id.

[4] Id.

[5] Id.

[6] Mike Varano and Josh Miller, Would Your draft number have been called? USA TODAY Networkhttps://www.usatoday.com/vietnam-war/draft-picker, (last visited Sept. 11, 2020).

[7]  Demographics of the U.S. Military, Council on Foreign Relations (July 13, 2020), https://www.cfr.org/backgrounder/demographics-us-military.

[8] Id.

[9] 50 U.S.C.A. § 3802 (West 2020).

[10] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546 (5th Cir. 2020); U.S. Const. amend. V.

[11] Id. at 550.

[12] Id. at 547; 42 U.S.C.A. § 1983 (West 2020).

[13] Id.

[14] Id. at 549.

[15] Id. at 548.

[16] Id.

[17] Id.

[18] Rostker v. Goldberg, 453 U.S. 57 (1981).

[19] Id. at 83.

[20] Id. at 76-77.

[21] Id. at 80-82.

[22] Rostker v. Goldberg, 453 U.S. 57 (1981) (Marshall, J. dissenting).

[23] Id.; Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (Marshall, J., concurring).

[24] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546,548 (5th Cir. 2020).

[25] Id.

[26] Id.

[27] Id. at 550.

Employers, Drug Tests, and Bathroom Privacy: Analyzing the Supreme Court of Ohio’s Decision in Lunsford v. Sterilite of Ohio.

Photo by m01229 on Flickr

Brandon Bryer, Associate Member, University of Cincinnati Law Review

I. Introduction

An individual’s “bathroom time” is customarily regarded as a purely private matter. The Supreme Court of the United States has described “doing your business” as a function “traditionally performed without public observation”[1] and one “traditionally shielded by great privacy.”[2] However, despite its explicitly private nature, an individual’s status as an at-will employee may permit an employer’s interests to co-occupy the bathroom stall when undergoing a drug test. Recently, the Supreme Court of Ohio narrowly upheld a drug testing policy under which the employer utilized a direct-observation method when collecting the urine samples of its employees.[3] Through the lens of Lunsford v. Sterilite of Ohio, this article assesses how the legitimate interests of employers clash with an employee’s right to privacy and argues that the employment-at-will doctrine operates as a strong bar against an employee’s allegation of coerced or involuntary consent.

II. The Lunsford Decision

In 2018, two former and two current Sterilite of Ohio (“Sterilite”) employees brought suit challenging the private company’s workplace substance-abuse policy.[4] Under Sterilite’s policy, employees can be selected for a drug test at random, if a workplace accident occurs, or if there is reasonable suspicion an employee is impaired by drugs or alcohol.[5] If the employee does not produce a valid urine sample within two and half hours, the employee will be considered to have refused the test and is subject to immediate termination.[6]

Once selected for a drug test, all four employees signed a Consent and Release form authorizing “any testing necessary” to determine the presence and level of alcohol or drugs.[7] However, the consent form and Sterilite policy were silent as to the method of collection used.[8] After signing the consent form, a same-sex monitor escorted each employee to a designated drug testing restroom.[9] The first instance in which the employees realized the direct-examination method would be used was not until the same-sex monitor entered the restroom with them and shut the door.[10]

All four employees proceeded with the drug test under direct supervision without objection.[11] The two current employees produced a valid urine sample, however, despite “good faith efforts” the two former employees were unable to produce a sample within the allotted two and a half hours.[12] Pursuant to Sterilite policy, both employees were terminated for failure to produce a sample.[13] The employees alleged Sterilite committed the common-law invasion of privacy tort because the direct observation of one’s genitalia during urination is “highly offensive to a person of ordinary sensibilities.”[14] The employees further argued that their “consent” to be tested under the direct-observation method was involuntary because the only avaliable alternative was to be fired from their job.[15]

Writing for a slim 4-3 majority of the Supreme Court, Justice Kennedy held that when an at-will employee consents, without objection, to the collection of a urine sample under direct observation, the at-will employee has no cause of action for common-law invasion of privacy.[16] According to the majority, the employees gave both explicit and implied consent and had two opportunities to object and failed to do so. As to consent, because both employers and employees have the right to terminate an employment relationship at any time for any reason not contrary to law under the employment-at-will doctrine, the employee’s argument that their consent was involuntary due to fear of termination necessarily fails.[17]

Justice Stewart, writing for the dissent, objected strenuously to the relevance of the employment-at-will doctrine.[18] The dissent noted that while the employment-at-will doctrine does permit an employer or employee to terminate the employment relationship for any cause or no cause, the doctrine does not permit employers to commit intentional torts, such as invasion of privacy, against its employees or terminate an employee for reasons contrary to public policy.[19] According to the dissent, status as an at-will employee does not diminish one’s expectation of privacy nor does it supersede the employee’s right to obtain redress for the violation of public policy and privacy rights.[20] Further, the dissent argued that forcing an employee to choose between having your privacy invaded or loss of your job is no choice at all and it would distort the meaning of the word consent to say the Sterilite employees did so under these facts.[21]

III. Discussion

Most sensible people would agree that a co-worker or a stranger directly viewing your genitalia while you produce a urine sample offends personal dignity and invades one’s privacy. However, the same sensible person would also agree that a business has valid interests in ensuring the health and safety of its employees through drug and alcohol testing. But when these common sensibilities clash, which should prevail? At the heart of Lunsford and all similar cases that have and will arise in the future lies the controversial question of whether consent is invalidated when an employee must choose between having his or her privacy invaded or being fired. Answering that question is where the Lunsford court fractured.

The Lunsford majority relied solely on the employment-at-will doctrine to answer this fundamental consent question.[22] If an employee does not want to produce urine for a drug test under the direct-examination method, there are numerous alternative routes they may pursue. Importantly, there is more than just a false choice between show your genitalia to a stranger or be fired. The argument runs that an at-will employee could ask questions about the drug testing process before signing the consent form. If offended by the method, an at-will employee should object to direct examination, refuse to produce a urine sample, and request that a different process be used. If the employer refuses to compromise and still demands that direct examination be used, the at-will employee should quit. The employment-at-will doctrine puts faith in the employer and the employee to resolve employment relationship issues and if severance of employment is the ultimate result, so be it.[23]

Others, including the Lunsford dissent, would argue this approach is idealistic and that threatening an employee with termination if they do not ultimately submit to the direct examination of their genitalia is “tantamount to no choice at all.” [24] This predicament invokes a classic tort law example of determining when consent is invalidated due to duress. For example, if the Sterilite employees were held at knifepoint and forced to take a drug test under the direct-observation method, the employees cannot reasonably be said to have “consented.” Yet, the Lunsford majority clearly believes an at-will employee losing their job does not rise to the level of being held at knifepoint because once again the employment-at-will doctrine presents an at-will employee numerous options of recourse up to the ultimate act of quitting. Whether that reasoning is sound within the power complex of an employer-employee relationship has been debated and is ultimately why the Supreme Court of Ohio disagreed in this case.  

However, does the employment-at-will doctrine act even stronger than this? The answer seems to be yes. By interjecting the employment-at-will doctrine into the consent analysis, it is difficult to envision how the Lunsford majority could arrive at a different conclusion even if the employees did object. To illustrate this point, imagine if upon entering the bathroom and realizing the direct-observation method would be used, the Sterilite employees refused and explicitly revoked their consent. If Sterilite believed so strongly that the direct-observation method is necessary to preserve the integrity of its drug testing procedure, it could still refuse to accommodate a different method. No matter how much debate occurs between employer and employee, the Lunsford majority and the employment-at-will doctrine’s answer to this dilemma is ultimately “at-will employee, you should quit.”

While it is merely speculative whether Sterilite would have allowed for an unobserved urine production method had the employees objected, a case presenting such a fact pattern is an issue for another day. However, the Lunsford majority’s explicit use of the employment-at-will doctrine to refute the employee’s involuntary consent claim in effect constructs an extremely strong barrier between an employee who believes they were presented an unfair choice and any recourse in the courts. In fact, not even language from the United States Supreme Court discussing the intimately private nature and shield of great privacy afforded to an individual’s “bathroom time” could overcome the employment-at-will doctrine.[25] As an at-will employee, it is the employment relationship and your employer who will protect your privacy or not.

IV. Conclusion

In light of the Lunsford decision, Ohio’s private employers have the final say – if a company wants to conduct drug testing by means of the direct-observation method, they have the right to do so and the authority to condition employment upon it. However, it would be imprudent to read Lunsford as an outright denial of the privacy rights of employees. Rather, carefully read, the decision implicitly calls for employee privacy rights to be asserted and defended through the employer-employee relationship, not in the courts. Due to the importance that the employment-at-will doctrine now plays within the context of employee privacy rights, it would be sensible for Ohio’s private employers to be more amenable to their employee’s privacy concerns. For example, one compromise that balances employer and employee interests is to have a same-sex monitor accompany an employee to a bathroom stall, leave the stall door half open, and use audio rather than visual authentication of an accurate, clean drug test.

Even following Lunsford, it is clear that employers who use the direct-observation method are on much shakier legal ground and are more vulnerable to lawsuits than those who use different methods. Going forward, the best course of action for a private employer insistent on using the direct-observation method is to explicitly outline in employment contracts and consent waiver forms that drug tests are conducted using the method.[26] Private employers should also be prepared to either compromise with alternative, less-invasive procedures when collecting urine samples or be willing to terminate any and all employees who refuse a direct observation test. If a private employer believes the benefits of drug testing by the direct-observation method so far outweighs the risk of losing certain members of its workforce, that is a decision Lunsford leaves to the employer’s discretion. In light of the employment-at-will doctrine’s power within the context of privacy and consent, an employee who is adamant on protecting the privacy of their “bathroom time” during a drug test may come at the cost of their employment. 


[1] Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 617 (1989).

[2] Bd. Of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 832 (2002) (quoting Skinner, 489 U.S. at 626).  

[3] Lunsford v. Sterilite of Ohio, L.L.C., No. 2018-1431, 2020 Ohio LEXIS 1907, at *2 (Ohio Aug. 26, 2020).

[4] Id. at *2.

[5] Id. at *2-3.

[6] Id. at *3.

[7] Id. at *4.

[8] Id. at *5.

[9] Id. at *4.

[10] Id. at *5.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *6.

[15] Id.

[16] Id. at *2.

[17] Id. at *22.  

[18] Id. at *24.

[19] Id. at *31-32 (citing Collins v. Rizkana, 652 N.E.2d 653 (1995)).

[20] Id. at *31.  

[21] Id. at *34.

[22] Id. at *22. “Sterilite had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. Because Sterilite had the legal right to terminate appellees’ employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails.”

[23] Mers v. Dispatch Printing Co., 483 N.E.2d 150, 153 (1985).

[24] Doyon v. Home Depot U.S.A., Inc., 850 F.Supp. 125, 130 (D. Conn. 1994).

[25] Bd. Of Edn. of Indep. School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 832 (2002) (quoting Skinner, 489 U.S. at 626).

[26] The Lunsford dissent explicitly notes that consent would not have been an issue had Sterilite notified employees at the time of their hiring or when the policy was changed that the direct-observation method is used.

Protecting Personally Identifiable Information in the United States

Photo by Markus Spiske on Unsplash

Logan Kline, Associate Member, University of Cincinnati Law Review

I. Introduction

Today, smart devices fill every facet of life; We check the time on our smart watches, listen to music on smart speakers, stream shows on smart TVs, and do just about everything else imaginable on smart phones. These systems are constantly pooling information to better serve both the individual user and the customer base as a whole. Amidst this growing sea of  raw data, personally identifiable information (PII) serves as a link between the individual and the otherwise faceless accumulation of information.[1] PII includes any data that could identify an individual such as a person’s name, face, or phone number, but the concept can also extend to IP addresses, web browser information and even GPS coordinates.[2] When your speaker calls you by name, or your phone recognizes your face, PII collection is streamlining your technological life.

However, a breach of trust and privacy can occur when the information a person believed to be protected is shared with others or sold for profit. To prevent this violation of confidence and security, various laws have been implemented on the state and federal level to govern the sharing and sale of PII, but these laws are far from uniform.[3] Some states, like California, have pushed ahead by passing legislation that thoroughly protects their citizens, while the majority of states lag behind, leaving their residents relatively unguarded.[4]

II. The Federal Landscape

The United States currently lacks a comprehensive law that governs the commercial sharing and sale of PII.[5] In this way, the United States lags far behind the European Union, which passed the General Data Protection Regulation (GDPR) in 2016 to protect its resident’s personal information and data.[6] The GDPR has set the global standard for PII protection, and a number of states have recently taken steps to follow this foreign example.[7]

However, the United States is not entirely devoid of federal regulation in this area. Section 5 of the Federal Trade Commission Act (FTC Act) prohibits unfair or deceptive practices and is the primary federal law protecting American PII.[8] While the FTC Act does not explicitly regulate the sharing of this information, it asserts that companies must be abundantly clear about what information they will be collecting, particularly when that information may be shared with a third party.[9] In short, the FTC Act does not tell companies what they may or may not do with the data collected, but instead ensures that the companies are transparent with how they intend to use customer data.[10] No private right of action exists under the FTC Act, so individuals are granted no recourse under federal law for violations of their PII rights.[11]

III. The State Legal Landscape and California’s Latest Legislation

Many states are quickly developing their own data privacy laws to fill the gaps left by the federal legislation.[12] California has led the way for American PII protection, but many other states have taken substantial steps to protect residents’ PII from financial exploitation.[13] 

Effective January 1, 2020, the California Consumer Privacy Act of 2018 (CCPA) serves as the United States’ most comprehensive statutory protection of PII.[14] The CCPA does not regulate every business that collects consumer data in the state, but instead focuses on those for-profit businesses that collect and profit the most from PII. [15] To be subject to the CCPA, a business must:

1) collect consumer PII;

2) determine the purposes and means of processing that PII; and

3) meet one of the following thresholds:

A) have annual gross revenues in excess of $25 million;

B) annually buy, sell, or share data relating to 50,000 or more consumers or devices; or

C) derive 50% or more of its annual revenue from selling this data.[16]  

The CCPA provides various protections to the data of California residents, including mandating that consumers have the right to opt out of their PII being sold.[17] Businesses that fall under this law must help consumers exercise their opt-out rights by including a “Do Not Sell My Personal Information” link in a “clear and conspicuous” location.[18] The CCPA also prevents businesses from discriminating against those customers that opt-out of sharing their PII, or otherwise exercise their rights under the act.[19] Under the California law, consumers have both a right to know what information is being collected and a right to delete this information by request.[20]

 Unlike the current federal system and most other states, the CCPA provides a private right of action for consumers in the event of a breach, with maximum statutory damages of $750 per consumer.[21] The new California law also expands the definition of PII to include all “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”[22] While information that is made publicly available on the state or federal level is exempted from the statute, California’s expansive definition of PII affords its residents more comprehensive rights to data protection than anywhere else in the country.[23]

That said, the CCPA only protects California residents, with the vast majority of states lagging significantly behind in data protection legislation.[24] While other states have recently passed or are actively considering new legislation, each state adopts their own definition of PII, what constitutes the sale of PII, and what level of protection should be afforded to the data.[25]  

In 2019, Maine passed L.D. 946, which afforded consumers the right to restrict the use of their PII and prevented businesses from discriminating against those that asserted this control.[26] In these two areas, the L.D. 946 mirrors the CCPA, but Maine’s latest legislation differs from California in several key areas, including a less expansive definition of PII and the omission of a private right of action.[27] Even without these provisions, Maine is far ahead of the vast majority of states which have no laws at all governing the use and sale of PII.[28] This inconsistencies are creating a highly variable legal landscape that lacks predictability or cohesive structure.[29]

IV. Analysis

The current patchwork approach regulating the collection, use, and sale of PII provides insufficient protection to the data of most Americans. The amorphous form of data collection presents a challenge too pervasive for the states to handle on an individual basis. In order to best remedy this mounting problem, the United States could either implement nationwide legislation that creates a baseline protection for all citizens or draft a uniform code that provides state legislatures a model to build upon.

To protect all residents from overreaching and exploitative PII use, the United States could implement a national statute establishing fundamental data protection rights for all Americans. This approach would provide a level of consistency and predictability that the current system lacks. Currently, when an app user in Columbus, Ohio connects with a friend from San Diego, California, the applicable statutory lines are blurred. Can the app developer collect and sell the PII of one and not the other? What if the app company is based in Maryland and wants to apply Maryland law? These ambiguous situations occur constantly in contemporary data sharing. Without uniform legislation, companies are free to target residents of states with the least restrictive regulations on data sharing and PII. Of course, even with a national law, some states would inevitably pass further legislation to protect their residents beyond the protections provided by the federal government. While this future state innovation would create some inequity across the country, a nationwide law would effectively raise the floor for data privacy rights from the current nonexistent requirement to a more just standard.

Businesses would also benefit from a federal statute that establishes a minimum threshold for PII protection. Currently, businesses in this market are forced to go through each state’s applicable PII laws and ensure that their policies are up to date with rapidly developing and relatively unpredictable legislation. Companies have to evaluate their risk of exposure to litigation under each statutory construction independently and decide whether business in the state is worth the risk. In contrast, a federal standard would simplify this process by providing businesses a stable, consistent benchmark by which they could conduct business. 

The most prevalent countervailing interest to this proposed federal law arises from a concern for the financial wellbeing of small businesses in the face of potentially oppressive regulations. However, this objection could be easily addressed by establishing a sliding-scale standard based on business size and the amount of data collected. For small businesses that collect relatively little data, the requirements would be fairly lenient, while large corporations that collect vast pools of consumer data would be held to a higher standard. A comparable approach has already been implemented in California and could be similarly applied on a national scale with some adjustments. 

Absent national legislation, a model code to serve as a framework for best practices in data protection legislation could be immensely helpful and lead to more predictable laws from state to state. States would have to voluntarily choose to adopt this uniform law, but a model statute would at least provide a baseline for commonality between the states. The advantage to this approach is that it leaves the decision up to the states and avoids federal interference in state affairs. Each state legislature could adjust the model code to fit the needs of their particular constituency instead of having to build upon a federal statute in which they had limited input.

V. Conclusion

The next time you mindlessly plug in your name, date of birth, or phone number into one of your smart devices, pause for a moment and consider if you actually know where that information goes after you press send. Even now, what sites are collecting your information and linking it to you through PII? Without a comprehensive and uniform legal system protecting the PII of individuals across the country, the answer could be drastically different depending on your home state.

To remedy this inconsistency, the United States should follow the example of the European Union and create an equitable, predictable PII regulation that affords every American the same right to privacy and data protection.


[1] Data privacy principles all legal providers should adopt, Thomson Reuters,https://legal.thomsonreuters.com/en/insights/articles/data-privacy-principles (last visited Sept. 4, 2020).

[2] Id. (PII includes both direct and indirect identifiers. Direct identifiers include information that can independently identify a person such as their full name or complete social security number. Indirect identifiers also point to an individual, but they do so less explicitly, and therefore require other information to identify a specific person. Indirect identifiers include birthdates, the last four digits of a social security number, and street addresses without a city listed.).

[3] Andy Green, Complete Guide to Privacy Laws in the US, Varonis (Mar. 29, 2020), https://www.varonis.com/blog/us-privacy-laws/.

[4] Id. (See for more information on PII laws in New York, Hawaii, Maryland, Massachusetts, North Dakota, and California).

[5] Ieuan Jolly, US Privacy and Data Security Law: Overview, Thomson Reuters Practical Law https://1.next.westlaw.com/6-501-4555?isplcus=true&transitionType=Default&contextData=%28sc.Default%29 (last visited Sept. 4, 2020).

[6] Commission Regulation 2016/679, 2016 OJ (L 119).

[7] Elizabeth L. Feld, United States Data Privacy Law: The Domino Effect After the GDPR, 24 N.C. Banking Inst. 481 (2020) (The GDPR focuses on individual rights to data that had previously not existed in Europe such as the right to control and delete one’s own data); Green, supra note 3 (Upcoming or recently passed PII legislation in New York, Hawaii, Maryland, Massachusetts, North Dakota, and California.).

[8] Federal Trade Commission Act § 5, 15 U.S.C. §§ 41-58 (2018); Green, supra note 3.

[9] Jolly, supra note 5.

[10] Id.

[11] Federal Trade Commission Act, 15 U.S.C.A. § 45 (2018) (citing Morales v. Walker Motors Sales, Inc., 162 F. Supp. 2d 786, 790 (S.D. Ohio 2000)) (There is no implied private right of action under the provision of the Federal Trade Commission Act prohibiting unfair and deceptive acts and practices.); See also U.S. v. Philip Morris Inc., 263 F. Supp. 2d 72 (D.D.C. 2003).

[12] Mitchell Noordyke, US state comprehensive privacy law comparison, IAPP (Apr. 18, 2019), https://iapp.org/news/a/us-state-comprehensive-privacy-law-comparison/.

[13] Cynthia Brumfield, 11 new state privacy and security laws explained: Is your business ready? CSO Online (Aug. 8, 2019), https://www.csoonline.com/article/3429608/11-new-state-privacy-and-security-laws-explained-is-your-business-ready.html.

[14] TITLE 1.81.5. California Consumer Privacy Act of 2018 [1798.100 – 1798.199].

[15] Brumfield, supra note 10 (“The law applies to applies to businesses that collect information from California residents and meet at least one of the following thresholds: (1) have over $25 million in annual gross revenue; (2) buy, receive, sell, or share for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or (3) derive 50 percent or more of their revenue from the sale of consumers’ personal information.”).

[16] Id.

[17] California Consumer Privacy Act (CCPA), State of California Department of Justice, Attorney General’s Office, https://oag.ca.gov/privacy/ccpa (last visited Sept. 4, 2020).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] TITLE 1.81.5. California Consumer Privacy Act of 2018 [1798.100 – 1798.199].

[23] See California Consumer Privacy Act, supra note 17. (Information that is exempted from the statute includes public licenses or property records.)

[24] Id.

[25] Green, supra note 3; Noordyke, supra note 12. (Maryland, Hawaii, New York, North Dakota, Nevada, Pennsylvania, Rhode Island, and Massachusetts are some of the states that have recently proposed or passed legislation related to PII protection.)

[26] Noordyke, supra note 12.

[27] Id.; L.D. 946, 2019 Leg., 129th Sess. (Me. 2019). (PII is defined in Maine by § 9301(1)(A)(1)).

[28] Green, supra note 3 (As of early 2020, only California, Nevada, and Maine had privacy laws regarding PII in effect.).

Recent Litigation Surrounding the Public Charge Rule: A “Wealth Test” for Immigrants

Photo by Annika Gordon on Unsplash

Rebekah Durham, Associate Member, University of Cincinnati Law Review

I. Introduction

2020 has been a traumatic year for America’s immigration system. Travel in and out of the country ground to a halt and every U.S. embassy and consulate around the world shut down in response to the coronavirus.[1] President Trump issued an executive order in April that suspended the issuance of visas to numerous categories of skilled workers seeking employment in the United States.[2] In the courts, the litigation surrounding the Deferred Action for Childhood Arrivals program, which protects certain individuals from deportation who were brought to the U.S. illegally as children, kept us on the edge of our seats.[3] The future of the entire immigration system continues to hang in the balance as the U.S. Citizenship and Immigration Service (“USCIS”) narrowly avoided furloughing almost three-fourths of its workforce on August 25 and continues to predict drastic layoffs if revenue does not improve.[4] In the midst of all the chaos, a fierce battle is being fought over a change in U.S. immigration law that was begun back in October 2019: the Public Charge Rule. This rule bars foreign nationals from entering the U.S. who are likely to become dependent on government welfare, and it has been a part of American immigration law for almost 150 years. However, a recent rule change by the Trump administration has expanded the definition of who qualifies as a public charge to include recipients of more common government benefits.

II. Background of the Public Charge Rule

The U.S. immigration system has always viewed dependence on government support as grounds for inadmissibility into the country. In 1882, the Immigration Act contained a provision that excluded “any person unable to take care of him or herself without becoming a public charge.”[5] The Immigration and Nationality Act of 1952 (“INA”), which today is the principal statute governing legal immigration in the US, contains a similar provision stating that any visa applicant considered likely to become a public charge at any time is inadmissible,[6] and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 amended the statute to list a series of factors that consular officers should consider when making public charge decisions.[7] However, none of these acts ever defined the meaning of the term “public charge,” and the absence of such a definition is the reason for the current lawsuits. 

Although “public charge” has been listed as grounds for exclusion since 1882, the definition of the term has always been left up to the executive branch.[8] In 1999, the Immigration and Naturalization Service (“INS”) published a proposed rule that, for the first time, defined public charge as an alien who is “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”[9] This definition did not include recipients of non-cash benefits such as food stamps or housing vouchers, and specifically instructed that these were not to be considered as grounds for exclusion.[10] The 1999 proposed rule was never finalized, but as the only definition available, it became the standard that was used in subsequent agency guidelines.[11]

III. Litigation Round 1: A Wealth Test for Immigrants

Enter the Trump administration, campaigning on a platform of “America first” and seeking to limit immigration privileges to only those foreign nationals who would contribute the most to America’s economy and social system. In August 2019, the Department of Homeland Security (“DHS”) published a final rule (“Public Charge Rule”) that gave a tangible and significantly more restrictive definition to the nebulous term “public charge.”[12] The new rule, which went into effect in October 2019, expanded the list of public benefits that could render a foreign national ineligible for a visa and provided that receipt of public benefits for twelve months in any thirty-six-month period would render an applicant ineligible to renew his or her visa.[13] This second part is especially significant, since most foreign nationals pursuing permanent residence in the U.S. must go through a long series of petitions, applications, and short-term visas on the road to acquiring a green card. Denial at any stage can jeopardize the entire immigration process, which often means a loss of an investment of many years and tens of thousands of dollars.

The 2019 Public Charge Rule was met almost instantly with a flood of lawsuits by States and organizations who felt that expanding the definition took what had previously been a barrier against immigrants who would be dependent on the government and made it into a “wealth test.”  Viewing this as an impermissible interpretation of the meaning of “public charge,” several district courts issued preliminary injunctions against enforcement of the rule, both local and national in scope.[14] Some of these injunctions were stopped at the appellate court level but eventually two cases reached the U.S. Supreme Court from Illinois and New York in early 2020.[15] The Court in both cases granted stay of the injunctions, permitting the DHS to enforce the new rule as long as the cases remain pending in the court system. Accordingly, DHS began to enforce the rule on February 24, 2020.[16]

IV. Litigation – Round 2: COVID Edition

As courts began operations again in the wake of coronavirus-related delays, litigation resumed on the Public Charge Rule. One of the first rulings came from the Southern District of New York, in the same case where the Supreme Court had stayed preliminary injunction in January.[17] Judge George B. Daniels issued another injunction against enforcement of the Public Charge Rule, this time based on the coronavirus pandemic and limited in time for the duration of the public health emergency.[18] The injunction went into effect on July 29 and continues currently to prevent enforcement of the new rule by the DHS.[19]

Two more preliminary injunctions were decided in early August in the Second and Fourth Circuit Courts of Appeal.[20] In order for a preliminary injunction to be upheld, the court must determine that the plaintiffs have a strong likelihood of success on the merits of their case.[21] Since each inquiry as to the plaintiff’s likelihood of success on the merits is an individual one, the August decisions were not bound by the Supreme Court stay of injunction that was issued without comment back in January.[22] The Second and Fourth Circuits came to opposite decisions on an essentially identical issue. The Fourth Circuit chose to respect the Supreme Court’s prior decision in the almost identical cases from January, while the Second Circuit concluded that the DHS had interpreted public charge inconsistently with Congressional intent as laid out in the INA and that the new rule was “arbitrary and capricious.”[23] The Second Circuit did limit the scope of the injunction to the three plaintiff states of New York, Connecticut, and Vermont, rather than issuing a nationwide injunction as many district courts had done previously.[24]

V. Conclusion: Where Do We Stand Now?

As long as the injunction issued by the Southern District of New York on July 29 remains in effect, the DHS is prohibited from enforcing the new Public Charge Rule as long as the public health emergency caused by the Covid-19 pandemic remains in place.[25] This means that visa applications and renewals cannot be denied based on the applicant’s receipt of non-cash benefits such as Medicaid or housing benefits. For many foreign nationals currently in the U.S. on temporary visas, this postponement of enforcement is a critical lifeline as they try to maintain lawful status in an immigration system thrown into chaos by the myriad of new travel and employment rules created in response to the pandemic.

Once the public health emergency is over, however, the DHS can likely resume enforcement of the Public Charge Rule. With disagreement among the Circuit and Appellate Courts, the only way this issue will ultimately be decided is if one of the challenges makes it to the Supreme Court on the merits, rather than on the preliminary injunction. If one of the cases does make it to the Supreme Court, the government will almost certainly prevail. As the Fourth Circuit explained in its opinion, the DHS followed all the correct procedures in both designing and promulgating the final Public Charge Rule.[26] The new definition is neither arbitrary nor absurdly restrictive, but rather the inevitable result of the delegation of authority by Congress to the Executive branch in the interpretation and enforcement of current immigration statutes.

The Public Charge Rule has played out as a fascinating study of separation of powers, as the vague definition of “public charge” given by Congress resulted in a perhaps overreaching interpretation of that term by the executive branch, followed by the judicial branch attempting to act as an executive watchdog through a series of nationwide injunctions from various Federal District Courts. Congress could have given a more specific definition of “public charge” in any of the multiple acts passed to reform various parts of immigration law since the INA in 1952. By choosing to delegate that privilege to the executive branch, Congress ran the risk of ending up with a definition it did not like very much. And until the Supreme Court rules otherwise or a change of administration in the executive leads to a new rule, we might very well be stuck with it.


[1] Suspension of Routine Visa Services, U.S. Department of State – Bureau of Consular Affairs (March 20, 2020), https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.

[2] Proclamation No. 10014, 85 Fed. Reg. 23,441 (April 22, 2020).

[3] Department of Homeland Security v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020).

[4] USCIS Averts Furlough of Nearly 70% of Workforce,U.S. Citizenship and Immigration Services (August 25, 2020), https://www.uscis.gov/news/news-releases/uscis-averts-furlough-of-nearly-70-of-workforce

[5] Public Charge Provisions of Immigration Law: A Brief Historical Background, U.S. Citizenship and Immigration Services (August 14, 2019), https://www.uscis.gov/history-and-genealogy/our-history/public-charge-provisions-of-immigration-law-a-brief-historical-background

[6] Id.

[7] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. at 28,689 (Mar. 26, 1999).

[8] CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *12 (4th Cir. Aug. 5, 2020).

[9] Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. at 28,689.

[10] Id.

[11] Public Charge Provisions of Immigration Law: A Brief Historical Background, U.S. Citizenship and Immigration Services (August 14, 2019), https://www.uscis.gov/history-and-genealogy/our-history/public-charge-provisions-of-immigration-law-a-brief-historical-background.

[12] Inadmissibility on Public Charge Grounds, 84 Fed. Reg. at 41,292 (Aug. 14, 2019) (to be codified at 8 C.F.R. pts 103, 212, 213, 214, 245 and 248).

[13] Id. at 41,295.

[14] CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *16 (4th Cir. Aug. 5, 2020).

[15] Id. at *17.

[16] Id.

[17] New York v. United States Dep’t of Homeland Sec., 19 Civ. 7777, 19 Civ. 7993 (S.D.N.Y. July 29, 2020).

[18] Id.

[19] Public Charge, U.S. Citizenship and Immigration Services (August 21, 2020), https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge.

[20] New York v. United States Dep’t of Homeland Sec., 2020 U.S. App. LEXIS 24492 (2d Cir. Aug. 4, 2020). CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *15 (4th Cir. Aug. 5, 2020).

[21] Id. at *28.

[22] Id. at *6.

[23] New York v. United States Dep’t of Homeland Sec., 2020 U.S. App. LEXIS 24492, at *35 (2d Cir. Aug. 4, 2020).

[24] Id. at *96.

[25] Alexandra Holland, DHS Blocked From Enforcing New Public Charge Rule During COVID-19 Pandemic, The National Law Review (August 14, 2020), https://www.natlawreview.com/article/dhs-blocked-enforcing-new-public-charge-rule-during-covid-19-pandemic.

[26] CASA de Md., Inc. v. Trump, 2020 U.S. App. LEXIS 24672, at *15 (4th Cir. Aug. 5, 2020).

Trump Administration Denies Pebble Mine Permit

Photo by Erin McKittrick on Wikimedia Commons

J.P. Burleigh, Blog Editor, University of Cincinnati Law Review

I. Introduction

Environmental activists rejoiced this last week after hearing that the Trump administration’s Army Corps of Engineers (“Corps”) denied a permit for the Pebble Mine Project.[1] The project proposed to build an open-pit mine for copper, gold, and molybdenum on undeveloped land in southwest Alaska.[2] Despite the Trump administration giving the project more deference than the Obama administration, the Corps published a letter on August 24 explaining that the project could not proceed without mitigating its adverse effects on the environment.[3] This article explains how a broad coalition of conservation interests helped influence this result and why the mitigation requirement likely spells doom for the Pebble Mine Project.

II. Background

The Pebble Mine Project proposes to build a surface mine near Alaska’s Iliamna Lake, in the headwaters area of the Bristol Bay watershed.[4] In addition to the mine itself, the project would require infrastructure including a 270-megawatt generating power plant; earthen dams to contain waste in large reservoirs; a 192-mile natural gas pipeline; a port facility; and access roads to the mine and port.[5] Supporters of the project argue that the Pebble Mine would bring over 16,000 jobs to rural Alaska and allow for the extraction of over $400 billion of valuable minerals.[6]

But opposition to the Pebble Mine has been strong among those who fear that the project would harm the Bristol Bay fishery.[7] The Bristol Bay watershed is home to several species of wild salmon that travel into headwater streams each year to spawn.[8] About half of the world’s wild salmon come from Bristol Bay, making fishing of the area a $1.5 billion industry.[9] Commercial fishermen, recreational anglers, and native Alaskan tribes have joined together to resist the project, believing it would pollute Bristol Bay and harm one of the strongest salmon ecosystems left in the world.[10]

Because Pebble Mine would discharge into waters of the United States, the project requires a permit under Section 404(b) of the Clean Water Act (“CWA”).[11] In 2014, the Obama administration’s Environmental Protection Agency (“EPA”) took steps to prevent the project from even applying for the permit.[12] Specifically, the EPA began the process under Section 404(c) of the CWA to veto the Pebble Mine, finding that the project could cause irreversible damage to fish and fish habitat.[13] But the Trump administration’s EPA began the process to rescind the proposed veto in 2017 and finalized that decision in 2019, clearing the way for the Pebble Mine to apply for a CWA permit.[14]

On July 24, 2020, the Corps released a Final Environmental Impact Statement for Pebble Mine, finding that although the project would permanently remove fish habitat, that loss would not “have a measurable impact on fish populations.[15] While the project’s supporters cheered this result, people close to the president spoke out in opposition.[16] A former aid to Vice President Pence tweeted his disapproval of the Pebble Mine project and suggested he was lobbying the president to weigh in against the Corps issuing the necessary permit.[17] Donald Trump Jr. echoed this sentiment in a tweet of his own:

As a sportsman who has spent plenty of time in the area I agree 100%. The headwaters of Bristol Bay and the surrounding fishery are too unique and fragile to take any chances with. #PebbleMine.[18]

A spokesman for Pebble Mine suggested these comments were both factually wrong and inappropriate, since the president does not decide whether to issue a CWA permit.[19]

On August 24, 2020, the U.S. Army Corps of Engineers issued a letter explaining that the project would only receive the CWA permit if the project could mitigate its adverse effects on the environment.[20] Leaving out any reference to fish or wildlife, the Corps noted its previous finding that the Pebble Mine would adversely impact 3,285 acres of wetlands, 496.7 acres of open waters, and 185 miles of streams.[21] To receive a CWA permit, the Corps explained, the Pebble Mine must provide a plan within 90 days for “in-kind compensatory mitigation within the Koktuli River Watershed.”[22] In an online notice to the public the same day, the Corps explained that “the project, as currently proposed, cannot be permitted under section 404 of the [CWA]” because “the project could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation.”[23]

The project’s leaders have said that mitigation is a routine condition for a permit, and that that a plan is already in the works to meet the Corps’ standards.[24] But environmental groups are heralding the letter as creating a significant obstacle, asserting that Pebble Mine will be unable to offset the damage it will create.[25]

III. Analysis

Opponents of the mine have reason for optimism; the Pebble Mine will likely not meet the mitigation requirement. The Corps has defined compensatory mitigation as “the restoration (reestablishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources to offset unavoidable adverse impacts.” [26] Further, the Corps requires “in-kind” mitigation, meaning a one-for-one setoff: for every acre of waters adversely impacted, the Pebble Mine would need to restore, establish, enhance or preserve an acre of waters somewhere else.[27] This can be done through any combination of three methods: Pebble Mine can perform the mitigation itself; Pebble Mine can pay a private company to perform the mitigation through a “mitigation bank;” or Pebble Mine can pay an fee in lieu of mitigation to a qualifying public program.[28] Mitigating adverse impacts in this one-to-one way can be quite expensive and time-consuming. But time and money are not the greatest barriers the Corps has placed in front of the Pebble Mine.

Mitigation on the scale the Corps has called for might not be possible because of where the Corps wants mitigation performed. Sometimes mitigation can be done outside the affected area of a proposed development; that is not the case here. All mitigation must be done “in-region:” the Corps’ letter states that mitigation for the mine site must be done within the Koktuli River Watershed, where the Pebble Mine would be located. This presents two problems which will make this project’s mitigation difficult—if not impossible.

First, the Koktuli River Watershed is a relatively narrow area: the Koktuli River is but a tributary of the larger Mulchatna River, and the main stem of the Koktuli is less than 60 miles long.[29] Compared to the what Pebble Mine needs for mitigation, this is not a large amount of waters to work with. As of the time of this article, no existing mitigation banks or in-lieu fee programs exist in the Koktuli River Watershed, according to an online registry from the Corps.[30]

Second, the area is almost entirely wilderness. That rules out restoring, establishing, or enhancing waters there, because the ecosystem is already in pristine, wild condition. The remaining method would be to “preserve” (buy and protect) waters in enough quantity to offset the impacts of the mine.

Preservation would be challenging. While the Koktuli River Watershed might contain enough streams to offset the mine’s impact (185 miles), there might not be enough open waters (about 5 square miles) or wetlands (0.8 square miles). Even if such aquatic resources exist within the area, Pebble Mine might not be able to acquire the land: many Alaskans oppose the project and would not be willing to sell property for mitigation. On the whole, the prospect of Pebble Mine achieving the necessary mitigation within the area required by the Corps is highly unlikely.

IV. Conclusion

While the Pebble Mine could in theory meet the mitigation requirement, this will be a steep hill to climb. Further, the high bar that the Corps has set for Pebble Mine suggests a departure from the deference Corps has shown the project thus far under the Trump administration. Although environmental groups continue to press for a total veto of Pebble Mine’s CWA permit, such a move is probably unnecessary to defeat the project. The winds have changed against the Pebble Mine project, which might well be dead in the water after last week’s regulatory setback.


[1] In Major Reversal, Trump Administration Stalls Pebble Mine, Natural Resources Defense Council (Aug 24, 2020), https://www.nrdc.org/media/2020/200824.

[2] Pebble Project Environmental Impact Statement: Executive Summary, U.S. Army Corps of Engineers (Jul. 24, 2020), https://pebbleprojecteis.com/files/8c7ee895-a7b2-4229-a117-7ea23d651fa0 (hereinafter “EIS Executive Summary”).

[3] Scott Bronstein, Curt Devine, and Drew Griffin, Alaska Pebble Mine opposed by Trump Jr. hit with unexpected setback, CNN (Aug. 24, 2020, 7:03 PM), https://www.cnn.com/2020/08/24/politics/pebble-mine-alaska-invs/index.html.

[4] See generally, EIS Executive Summary, supra.

[5] Id.  

[6] Patrick Gleason, Former Trump Advisor Urges The President To Kill Thousands Of Jobs, Forbes (Aug. 26, 2020, 6:17 PM), https://www.forbes.com/sites/patrickgleason/2020/08/26/former-trump-advisor-urges-the-president-to-kill-thousands-of-jobs/.

[7] What’s At Risk, Save Bristol Bay, http://www.savebristolbay.org/bristolbayatrisk.

[8] Chris Wood, Chris Wood cheers Bristol Bay news: Ding dong, the witch is down (but out?), Trout Unlimited (Aug. 27, 2020), https://www.tu.org/blog/ding-dong-the-witch-is-down-but-out/?utm_source=newsletter&utm_medium=email&utm_campaign=informz&_zs=5Xxtb&_zl=OG7E2.

[9] What’s At Risk, supra.

[10] Id.

[11] 33 U.S.C. § 1345(b).

[12] Juliet Eilperin and Brady Dennis, Obama blocked this controversial Alaskan gold mine. Trump just gave it new life., The Washington Post (May 12, 2017, 7:37 AM),https://www.washingtonpost.com/news/energy-environment/wp/2017/05/12/obama-blocked-this-controversial-alaskan-gold-mine-trump-just-gave-it-new-life/.

[13] Proposed Determination of the U.S. Environmental Protection Agency Region 10 Pursuant to Section 404(c) of the Clean Water Act, Pebble Deposit Area, Southwest Alaska, Environmental Protection Agency (Jul. 2014), https://www.epa.gov/sites/production/files/2014-07/documents/pebble_pd_071714_final.pdf.

[14] EPA Withdraws Outdated, Preemptive Proposed Determination to Restrict Use of the Pebble Deposit Area as a Disposal Site, Environmental Protection Agency (Jul. 30, 2019), https://www.epa.gov/newsreleases/epa-withdraws-outdated-preemptive-proposed-determination-restrict-use-pebble-deposit.

[15] Pebble Project Final EIS, Section 4.34 Fish Values, U.S. Army Corps of Engineers (Jul. 2020), https://pebbleprojecteis.com/files/23524c2b-30ca-493b-9103-14bf9965795a.

[16] Gleason, supra.

[17] Id.

[18] Devan Cole, Donald Trump Jr. opposed controversial Alaska mine that could disrupt critical salmon fishery, CNN (Aug. 7, 2020, 9:26 AM), https://www.cnn.com/2020/08/05/politics/pebble-mine-donald-trump-jr-alaska/index.html.

[19] Id.

[20] Letter from David S. Hobbie, U.S. Army Corps of Engineers, to James Fueg, Pebble Limited Partnership (Aug. 20, 2020), https://pebbleprojecteis.com/files/3053b63e-0532-4c01-bedf-63b1537ba22d.

[21] Id.

[22] Id.

[23] U.S. Army Public Affairs, Army finds Pebble Mine project cannot be permitted as proposed, U.S. Army (Aug. 24, 2020), https://www.army.mil/article/238426.

[24] Alexis Fernandez, Proposed Pebble Mine faces setback over environmental concerns, KTUU (Aug. 24, 2020, 6:50 PM), https://www.ktuu.com/2020/08/24/proposed-pebble-mine-project-faces-setback-over-environmental-concerns/.

[25] Wood, supra.

[26] EIS Executive Summary, supra, 111 (emphasis added).

[27] 33 CFR 332.3(f)(1).

[28] 73 FR 19594-95.

[29] Koktuli River Float, Regal Air, https://regal-air.com/alaska-shore-excursions/alaska-river-rafting/koktuli-river-float/.

[30] Regulatory In-Lieu Fee and Bank Information Tracking System, U.S. Army Corps of Engineers, https://ribits.ops.usace.army.mil/.

October Term 2019 in Review

Photo by Phil Roeder on Flickr

Trane J. Robinson, Robin2t3@mail.uc.edu, Citations Editor, University of Cincinnati Law Review

In July, the Supreme Court tied a bow on a term that won’t soon be forgotten.  October Term 2019 featured live-streamed, telephonic oral arguments during the May sitting—firsts at the court[1]—complete with seldom-heard questioning from Justice Thomas, a presidential impeachment trial in January pulling the Chief Justice across the street for double duty, and, by the way, a merits docket with more huge cases than the game show Deal or No Deal.  Apparently less eager for summer recess than usual (damn virus!), for the first time in decades the justices completed their work after the Fourth of July.[2]

In this post, I review the momentous Term that was O.T. 19.  I look to the court’s disposition of cases that reached invigorating social and religious issues and sculpted executive power.  This term saw expanded Title VII protections but constricted Affordable Care Act coverage.  It saw the court strike down an abortion restriction while it bolstered the free exercise of religion, expand executive removal power but not executive privilege.  The justices’ summer recess marks a fine occasion to reflect upon a term just completed to digest cases, weigh outcomes, discern trends, and extrapolate projections, but it is important not to diagnose unwritten motives—or even presume their existence.  The following comes from the four corners of published opinions.  Everything here presupposes that the justices decide cases discretely, based on facts applied to law and precedent, without horse-trading votes across cases or regarding extra-record influences on decision making.

With that said, court commentators have centered on one theme above all to characterize this iteration:  As his title and center-seat intimate, Chief Justice John G. Roberts is the court bellwether.  The Chief Justice occupies the median seat in terms of judicial philosophy.[3]  Indeed, he joined the majority in all but two merits cases this term (59/61[4]), 14 of those were decided 5-4.  And as Chief he always assigns opinion authorship for his side, be that the majority or dissent.  John Roberts, now fifteen terms in and healthy (right?[5]), is just an adolescent in his line of work and figures to steer the judiciary for the foreseeable future.

Look no further than this term to realize the significance of the opinion-assigning function:  The Chief, by his own assignment, wrote the lead opinions in Vance, Mazars, Seila Law, Regents, and Espinoza to name a handful[6]—all hot-button cases discussed below.  In those cases and others, Roberts swung majorities in his preferred direction, tactfully dictating outcomes and the narrowness of reasoning.  Begin, though, where the Chief registered minority votes.

Justice Gorsuch delivered the decision for a bare majority in McGirt v. Oklahoma.[7]  His coalition threw out for lack of prosecutorial jurisdiction the Oklahoma criminal convictions of Creek Nation Indians who committed crimes on Native American soil.  The Chief wrote a dissent on account of history and precedent for the remaining four Justices.

Contrary precedent, it turns out, motivated both of Roberts’ dissenting votes:  He disagreed with the majority’s fractured decision in Ramos v. Louisiana[8] to contravene a Sixth Amendment precedent called Apodaca[9] and incorporate into the Due Process Clause of the Fourteenth Amendment—applicable to States—the jury unanimity requirement.[10]  Justice Gorsuch carefully criticized and ultimately laid to rest Apodaca’s plurality decision written by his former boss Justice White.  Several members wrote separately.  Justice Thomas applied a hybrid of his concurrences in McDonald[11]and Gamble[12] to argue incorporation is properly achieved through the Privileges or Immunities Clause regardless of stare decisis; Justice Kavanaugh submitted his own theory of the doctrine of stare decisis by collecting cases to synthesize a workable rule from precedent for reevaluating precedent.  Justices Alito, Sotomayor, and Gorsuch jousted over today’s relevance of the racial animus that poisoned the antebellum origin of states’ non-unanimous jury provisions.  Notably, Justice Kagan along with the Chief Justice joined Justice Alito’s dissenting opinion in this fractured but fundamentally 6-3 decision.

McGirt and Ramos, both Justice Gorsuch opinions, share another common thread.  Both decisions upset federalism generally and state criminal convictions in particular.  McGirt frustrated state convictions of Creek Nation Indians on jurisdictional grounds; relatedly, after Ramos,a question lingers regarding retroactive application of the newly incorporated right to unanimous convictions.[13]  State reliance interests, like stare decisis, loomed large in the dissents from McGirt and Ramos.

A proper term review would devote attention to additional state sovereignty cases, and now’s the chance.  On an issue of first impression, the unanimous court banded behind Justice Kagan to hold that states may prevent the “faithless elector” from eroding democracy by pledging electoral college votes to their State’s popular vote loser.[14]  The court was poised to break its decade-long hiatus from addressing the Second Amendment,[15] until New York City scrapped a dubious gun regulation to moot the case after certiorari had been granted.[16]  The State of Kansas fared well this Term:  The court approved its policy choice to deprive murder defendants the insanity defense;[17] plus the court held a federal law did not preempt the Kansas statutes used to prosecute illegal-immigrant fraudsters.[18]  North Carolina prevailed on an Eleventh Amendment claim because Congress lacked authority to abrogate sovereign immunity from copyright infringement liability.[19]  Potentially—though hopefully not—a foreshadow of November, the court was thrust into an election in Wisconsin on an emergency basis amidst pandemic; the court lifted a corona-virus related preliminary injunction issued by a three-judge district court panel.[20]  Justice Ginsburg illuminated disenfranchisement risks sown by Wisconsin and sanctioned by her court.[21]  Last, the court authorized a District Attorney’s subpoena of a sitting president’s records—as discussed below in connection with a companion case about executive power.[22]

Social Issues

The armchair expert will remember this Term for unforeseen results in high-stakes cases.  The court reached abortion, transgender and homosexual rights, Obama’s Dreamers program, and religious freedom.  And sometimes, get this, the court ruled for the party favored by social progressives.  “How could those five conservatives do such a thing?” some wondered perplexingly.  Others rejoiced “a miracle!”  Rumors swirled over whether Chief Justice Roberts had quote-unquote “flipped” in similar fashion to his republican-appointed-turned-progressive-champion former colleagues Justices Stevens, Souter, and sometimes Kennedy.  The U. S. Reports, however, told a different story.  Roberts never abandoned his restrained, conservative predilections.  The landmark progressive victories in June Medical (abortion), Regents (DACA), and Bostock (Title VII) were not so pronounced as the headlines screamed.

No case illustrates the point better than June Medical Services v. Russo.[23]  A 4-1-4 fractured court struck down Louisiana’s law that required abortion providers to obtain admitting privileges at a nearby hospital.  Justice Breyer for the plurality picked up where he left off a few terms back in Hellerstedt,[24] a case that invalidated an analogous Texas law.  Chief Justice Roberts, who dissented in Hellerstedt and “continue[s] to believe that the case was wrongly decided,”[25] issued the fatal vote to Louisiana’s law solely based onprecedent, namely Hellerstedt.[26]  Roberts’ vote against a law he personally thinks not unconstitutional displayed humility; Roberts’ written opinion displayed his deft legal acumen.  He abided by the result Hellerstedt commanded—admission-privilege requirements are unduly burdensome—an simultaneously nodded to the impetus of Supreme Court precedent.  Meanwhile, he revamped the test by reverting back to Casey’s familiar undue burden analysis.  Hellerstedt called for a balancing of State interests against abortion-patients’—a task Roberts analogized to “judging whether a particular line is longer than a particular rock is heavy.”[27]  He thought weighing divergent interests in this charged area is better left to elected officials.  But asking whether a law imposes a substantial obstacle, Roberts explained, is judge’s work.

Ironically, the fractured court in Casey did something analogous when it upheld the central holding of Roe v. Wade, while completely reworking the analytical framework for lower courts to operate in. June Medical is noteworthy for its outcome, yet it was reached only on the narrowest possible grounds[28]stare decisis—while discarding the interest balancing analysis that so often leaves judges with carte blanche.[29]

In other news, Barrack Obama’s non-deportation program Deferred Action for Childhood Arrivals (DACA) survived a Trump Administration takedown attempt.[30]  The court blocked the President’s move not for lack of authority given that Obama, not Congress, promulgated DACA, but for shirking the Administrative Procedures Act.  The justification produced by the Secretary for Homeland Security explained the rescission of Dreamers’ (DACA beneficiaries) stateside benefits, but not the rescission of forbearances—refrain from enforcing deportation laws on qualifying immigrant-children.  The APA required justifications for both; absent the latter, the executive action was improper—“arbitrary and capricious” in administrative law jargon.  By preserving DACA on statutory procedural grounds, the court avoided hot-button immigration policy and admonished the government to “turn square corners in dealing with the people.”[31]

Justice Sotomayor, concurring alone, would have allowed the Regents on remand to press an equal protection claim in light of the President’s derogatory remarks towards immigrants.  A Justice Thomas dissent argued that rescission was proper because DACA is unconstitutional.  Regents provided short-term reprieve for Dreamers, but Chief Justice Roberts’ opinion left no doubt that the Constitution and APA, properly followed, tolerate DACA’s rescission.[32]

Bostock v. Clayton County,[33] which brought homosexual and transgender protection under the auspices of Title VII to the Civil Right Act, drew perhaps the most attention this term.  A victory for the LGBTQ community right on par with Obergefell, six justices agreed that to fire someone based on their sexuality or gender identity is to “discriminat[e] . . . because of . . . sex.”  That decision will protect millions and likely alter the interpretation of numerous statutes (that Justice Alito exhaustively listed in Appendix C to his more than 100-page dissent).  Justice Gorsuch, President Trump’s textualist first-appointee, delivered the majority opinion and no one else concurred separately.  Thus the Court furnished this seachange in employment discrimination law “under a textualist flag.”[34]  Likewise, both dissenting opinions offered textualist analyses in support of the opposite result.  The disagreement pitted a sort of literal textualism (“[o]nly the written word is the law”[35]) against an original meaning flavor of textualism (“Title VII’s prohibition of discrimination because of ‘sex’ still means what it has always meant.”[36]).  Indeed, a subplot in Bostock was a tug-of-war for the late Justice Scalia’s approval.[37]  Purposovism (considering uncodified congressional intent) and consequentialism (reverse engineering rationale from a chosen result) were conspicuously absent from the decision.  If textualism is “conservative,” then conservative judging will bear progressive results.

The party advocating a progressive result prevailed in June Medical, Regents, and Bostock.  Yet those cases moved the needle somewhat to the right in a judicial sense: doctrinally in abortion law and toward a method of statutory interpretation beginning and ending with text.  Another trio of cases saw a pronounced doctrinal shift to the right.  This term, the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA) perpetuated religious freedom.

Religion

Espinoza held that a State violates the Free Exercise Clause by prohibiting state-funded scholarships to attend religious schools when it provides those scholarships to secular schools.[38]  States cannot exclude religious institutions from an otherwise available education subsidy.  The decision invalidated Montana’s constitutional provision, colloquially referred to as a Blaine Amendment, that “broadly and strictly prohibit[s] aid to sectarian schools”[39]—which, Justice Alito explained, had pernicious origins in anti-Catholic bigotry.[40]  Some 37 other States have Blaine Amendments or the like.  The end result will reverberate across the country, requiring school voucher programs to include religious charter schools if such programs are to exist at all.  Roberts’ majority decision drew sharp criticism from the living-constitutionalist bloc, who argued this expansion of Free Exercise derogates its First Amendment companion the Establishment Clause.  Espinoza stands for the unremarkable, but somehow now “conservative”, ideal that the Free Exercise Clause defends America’s pluralistic society, tolerant of diverse and not necessarily reconcilable views.[41]

The Religious Clauses in Our Lady of Guadalupe School v. Morrissey-Berru prevented courts from adjudicating the employment discrimination claims of displaced teachers who were fired from sectarian schools.[42]  This extension of the so-called “ministerial exception” keeps courts from intervening in the pedagogical decisions over which “ministers”—a term that encompasses teachers—will inculcate students in the faith.

Finally, Little Sisters upheld an administrative decision to excuse employers with religious or moral objections from complying with the woman’s health coverage mandate to the Affordable Care Act.[43]  RFRA compelled that result.  This case interplays with Bostock, which expressly left open the question of Title VII employment discrimination for sincere religious purposes.

The religious parties’ victories this Term on constitutional and statutory grounds were sweeping; look ahead for the court to continue bringing Free Exercise doctrine towards the Clause’s original meaning,[44] or alternatively to decelerate the momentum of the doctrinal shift we saw this term.[45]

Executive Power

Believe it or not, the foregoing leaves unmentioned a swathe of this term’s cases.  The coordinate political branches of government called upon the judiciary to resolve sharp disputes.  The Supreme Court issued monumental decisions defining “the executive Power” and its relationship with competing powers entrusted elsewhere in the Constitution:  Can Congress curb the President’s removal power?  Is the President immune to a congressional subpoena?  A State criminal subpoena?  What judicial review are deported immigrants entitled?

When the Consumer Financial Protection Bureau fined Seila Law firm, the firm resisted by challenging the constitutionality of the agency’s structure.[46] Per Congress, the CFPB leader could be fired only for cause.  In something like an ode to Justice Scalia’s solo dissent in Morrison v. Olson,[47] the Chief Justice’s lead opinion held that the for-cause removal prescription defied the separation of powers.  In particular, the President, who wields “the executive Power,”[48] needs not show cause to remove an executive agent, even an agency boss.  An old precedent, Humphrey’s Executor, still good law but somewhat out of style, ensures that the removal power is not absolute.  Without overruling it outright, the court narrowed Humphrey’s Executor further towards obsolescence.[49]  That decision drew a concurrence from Justice Thomas who would have wholesale overruled the outdated precedent, and a memorable dissent from Justice Kagan—the only one she wrote this Term—who would have relied on that not-meaningfully-distinguishable case to uphold the CFPB structure.  Seila Law reflects the court-majority’s robust and unitary conception of executive power.

Allow a brief aside to discuss severability.  The court took up the Solicitor General’s position in Seila Law to sever the unconstitutional provision rather than strike down the entire CFPB.[50]  Seven Justices agreed with that remedy.  One week later, the court found a Free Speech violation in an exception from the Telephone Consumer Protection Act.[51]  There too, it severed the constitutionally infirm provision from the Act with seven Justices’ agreement.  It was no surprise to see the Justices staking positions on the severability doctrine:  In November, in California v. Texas,[52] the court will decide whether a hallmark provision to the Affordable Care Act is unconstitutional, and if so, whether it is severable.

This term’s immigration docket likewise tilted towards the executive branch.  For example, Thuraissigiam established that immigrants detained soon after illegally crossing the boarder and approved for expedited removal by an immigration court are not entitled to habeas corpus review.[53]  Going further, the court held such immigrants are not owed due process beyond an administrative deportation hearing.[54]  And the 5-4 court in Barton v. Barr said immigration statutes “do not allow cancellation of removal when a lawful permanent resident” commits serious crimes.[55]  But in Nasrallah v. Barr the court allowed deferential judicial review from an immigration court’s denial of Convention Against Torture relief from deportation.[56]Don’t lose sight of Regents either, the most significant immigration case of the term, where the Dreamers prevailed.

A pair of cases involving subpoenas stood for the unremarkable point that the President is not above the law.  House committees four times subpoenaed President Trump’s financial records in custody of Mazars accounting firm to “help guide legislative reform.”[57]  President Trump sought executive immunity.  Far from categorically immune to a legislative subpoena, Mazars v. Trump directed courts to balance a series of factors to determine whether the President must comply.[58]

President Trump likewise sought to quash “the first [ever] state criminal subpoena directed to a President.”[59]  In an opinion that read like a history lesson, beginning with a famous feud between gentlemen named Hamilton and Burr, the court concluded: “the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”[60]  His failed categorical-immunity argument does not foreclose President Trump’s ability on remand to press an as applied challenge to the subpoena for imposing on his constitutional duties.[61]  In any event, information gathered by grand jury subpoena is reviewed under seal, thus the general public will continue its wait to view Donald Trump’s financial information.

*          *          *

All told, let’s see where the chips fell.  October Term 2019 produced its fair share of 5-4 decisions, as expected.  (Chief Justice Roberts voted in the majority in all but one of those fourteen cases.[62])  That should not shortchange the court’s achievement to obtain seven-member majorities over divisive issues, such as those in the subpoena cases and two of the religious freedom cases.  The court also reached heterodox majority lineups in the 6-3 decisions Ramos and Bostock.  Rather than comment on judicial partisanship, I think pairing-off the justices better tells the story.  Justices Ginsburg and Breyer, for example, only disagreed four times this Term, that’s 7% of cases[63]—the same amount as the Chief Justice and Justice Kavanaugh.[64]  Justices Thomas and Alito are a natural pairing; they disagreed just 8% of the time.[65]  Justice Kagan aligned most frequently with Justice Breyer, at 90% of the time.[66]  And Justices Sotomayor and Gorsuch had slightly less alignment with any particular colleague, which squares with their earned reputation for each having independent streaks.

I noted at the outset that the commentariat characterized O.T. 19 by the emergence of Chief Justice Roberts at the court’s helm.  For my part, I agree with that characterization, but I think a corollary is equally true and more informative.  This is a conservative court.  Perhaps the adjective—conservative—distracts from the noun, which matters more to John Roberts and it should to us too.  This is after all a court.[67]  A conservative court is not like a conservative legislature.  This court believes “The executive Power” is robust, and singular; it does not believe the temporary officeholder is above the law—i.e., categorically immune to subpoena.  This court leaves immigration policy to the political branches; it does not dismiss statutory procedural requirements.  And this court defends (expands) religious freedom, even to the Affordable Care Act’s detriment.  Conservative judges will reach results untenable to Conservative lawmakers.[68]  Sure, that disappoints some folks.  It may take the wind from the sails of the punditry who aspire to politicize—or worse, add seats to—the Supreme Court.  Save plenty of room for disagreement on the merits,[69] O.T. 19 stands for the reality that those, of any ideology, who envision a court as the means to their desired policy end will continue to be surprised and disappointed.  Courts are passive tribunals,[70] not political organs;[71] they respond to laws,[72] and move in increments,[73] not lurches[74]—that is the essence of this term on Roberts’ court.[75]


[1] The Court also implemented two minutes of uninterrupted argument time to begin each advocate’s oral presentation.

[2] The court did not clear its merits docket until July 9 this year.  Not counting special circumstances, such as the September re-argument of Citizens United v. FEC, 558 U.S. 310 (2010), the last time a term concluded after Independence Day was 1986, when the Burger Court decided Bowsher v. Synar, 478 U.S. 714, Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, and other cases on July 7.

[3] Justices Ginsburg, Breyer, Sotomayor, and Kagan are jurisprudentially more progressive—i.e., outcome conscious; Justices Thomas, Alito, Gorsuch, and Kavanaugh are jurisprudentially more conservative—i.e., textualist.

[4] Adam Feldman, Final Stat Pack for October Term 2019 (updated), SCOTUSblog (Jul. 10, 2020, 7:36 PM), https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/, 21.

[5] Robert Barnes, Chief Justice John Roberts was hospitalized last month after injuring his head in a fall, Washington Post (July 7, 2020), https://www.washingtonpost.com/politics/courts_law/john-roberts-hospitalized-supreme-court/2020/07/07/6bc230ae-c0a0-11ea-b4f6-cb39cd8940fb_story.html.

[6] Not to mention the controlling opinion in June Medical Services v. Russo.

[7] McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020) (Gorsuch, J., delivered the opinion of the court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Alito and Kavanaugh, JJ., joined, and in which Thomas, J., joined, except as to footnote 9. Thomas, J., filed a dissenting opinion).

[8] Ramos v. Louisiana, No. 18-5924 (U.S. April 20, 2020) (Gorsuch, J., announced the judgment of the court, and delivered the opinion of the court with respect to Parts I, II–A, III, and IV–B–1, in which Ginsburg, Breyer, Sotomayor, and Kavanaugh, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which Ginsburg, Breyer, and Sotomayor, JJ., joined, and an opinion with respect to Part IV–A, in which Ginsburg and Breyer, JJ., joined. Sotomayor, J., filed an opinion concurring as to all but Part IV–A. Kavanaugh, J., filed an opinion concurring in part. Thomas, J., filed an opinion concurring in the judgment. Alito, J., filed a dissenting opinion, in which Roberts, C. J., joined, and in which Kagan, J., joined as to all but Part III–D).

[9] Apodaca v. Oregon, 406 U.S. 404 (1972).

[10] Ramos is my pick for the most entertaining read of O.T. 19.

[11] McDonald v. Chicago, 561 U.S. 742, 837 (2010) (Thomas, J., concurring in part and concurring in judgment) (supporting incorporation by way of the Privileges or Immunities Clause, U.S. Const., Amend. XIV, §1).

[12] Gamble v. United States, 139 S. Ct. 1960 (2019) (Thomas, J., concurring) (slip op., at 2) (providing view of the proper role of stare decisis).

[13] Ramos, (Kavanaugh, J., concurring in part) (Slip op., at 15-16); Id. (Alito, J., dissenting) (Slip op., at 21-22).  Next Term will supply the answer in Edwards v. Vannoy. No. 19-5807 (Cert. granted) (whether Ramos applies retroactively).

[14] Chiafalo v. Washington, No. 19-465 (U.S. July 6, 2020) (Washington law does not violate First Amendment by enforcing an elector’s pledge to vote for the popular vote winner); Colorado Dept. of State v. Baca, No. 19-518 (U.S. July 6, 2020) (upholding Colorado law requiring electors to vote for State popular vote winner).

[15] See District of Columbia v. Heller, 554 U.S. 570 (2008) (Opinion of Scalia, J.); McDonald v. Chicago, 561 U.S. 742 (2010).

[16] New York State Rifle & Pistol Assn., Inc. v. City of New York, No. 18-280 (U.S. April 27, 2020).  In a concurring opinion, Justice Kavanaugh noted the several Second Amendment certiorari petitions pending and suggested the court should grant one.  Id. (Slip op., 1).  To his disappointment, the court denied all of those petitions.  See Rogers v. Grewal, No. 18-824 (June 15, 2020) (Thomas, J., dissenting from the denial of certiorari, joined by Kavanaugh, J.).  Also, look ahead to Uzuegbunam v. Preczewski, No. 19-968 (cert. granted), for a sequel to the mootness issue (damages sought for now-rescinded college campus policy that designated “free speech zones”).

[17] Kahler v. Kansas, No. 18-6135 (U.S. March 23, 2020) (Kagan, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined).

[18] Kansas v. Garcia, No. 17-834 (U.S. March 3, 2020) (Alito, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Sotomayor, and Kagan, JJ., joined).  See also Kansas v. Glover, No. 18-556 (U.S. April 6, 2020) (Fourth Amendment case).  Following Kansas’ winning Term, President Trump nominated Kansas Solicitor General Toby Crouse to the U. S. District court for the District of Kansas.

[19] Allen v. Cooper, No. 18-877 (U.S. March 23, 2020).

[20] Republican National Committee v. Democratic National Committee, No. 19A1016 (U.S. April 6, 2020) (per curiam).

[21] Id. (Ginsburg, J., dissenting, joined by Breyer, Sotomayor, Kagan, JJ.).

[22] Trump v. Vance, No. 19-635 (U.S. July 9, 2020) (Roberts, C. J., delivered the opinion of the court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kavanaugh, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined. Thomas, J., and Alito, J., filed dissenting opinions.).

[23] June Medical Services L. L. C. v. Russo, No. 18-1323 (U.S. June 29, 2020) (Breyer, J., announced the judgment of the court and delivered an opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed an opinion concurring in the judgment. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Gorsuch, J., joined, in which Thomas, J., joined except as to Parts III–C and IV–F, and in which Kavanaugh, J., joined as to Parts I, II, and III. Gorsuch, J., and Kavanaugh, J., filed dissenting opinions.).  Take note that six justices wrote opinions in this abortion case.  Who didn’t?  Justices Ginsburg, Sotomayor, and Kagan—the Supreme Court’s three female Members.

[24] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Opinion of Breyer, J.).

[25] June Medical, slip op., at 2 (Roberts, C.J., concurring in the judgment).

[26] Id. (“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.”).

[27] Id., slip op., at 6 (quoting Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J., concurring in judgment)).

[28] Marks v. United States, 430 U. S. 188, 193 (1977) (the narrowest position supported by a majority is the court’s holding); Cf. June Medical Services, slip op., at 4 n.1 (Roberts, C.J., concurring in the judgment) (citing Marks).

[29] June Medical, slip op., at 6 (Roberts, C.J., concurring in the judgment) (“In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in protecting the potentiality of human life and the health of the woman, on the one hand, against the woman’s liberty interest in defining her own concept of existence, of meaning, of the universe, and of the mystery of human life on the other. . . . There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. . . . Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an unanalyzed exercise of judicial will in the guise of a neutral utilitarian calculus.” (internal quotation marks and citations omitted)).

[30] Department of Homeland Security v. Regents of Univ. of Cal., No. 18-587 (U.S. June 18, 2020) (Roberts, C. J., delivered the opinion of the Court, except as to Part IV. Ginsburg, Breyer, and Kagan, JJ., joined that opinion in full, and Sotomayor, J., joined as to all but Part IV. Sotomayor, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Alito and Gorsuch, JJ., joined. Alito, J., and Kavanaugh, J., filed opinions concurring in the judgment in part and dissenting in part.).

[31] Id., slip op., at 17 (internal quotation marks omitted) (“The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted.”).

[32]  If inclined, the United States Secretary of Commerce may include a citizenship question on the 2030 census.  See Department of Commerce v. New York, No. 18-996 (U.S. June 27, 2019).  Much the same, the Department of Homeland Security may rescind DACA.  Justice Thomas’ dissent urged rescission based on DACA’s unconstitutionality.

[33] Bostock v. Clayton County, No. 17-1618, slip op. at 2 (U.S. June 15, 2020).

[34] Id., slip op., at 3 (Alito, J., dissenting).

[35] Id., slip op., at 2 (Gorsuch, J.).

[36] Id., slip op., at 2-3 (Alito, J., dissenting).

[37] Id., slip op., at 3 (Alito, J., dissenting) (“The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.”).

[38] Espinoza v. Montana Dept. of Revenue, No. 18-1195 (U.S. June 30, 2020) (Roberts, C. J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Alito, J., and Gorsuch, J., filed concurring opinions. Ginsburg, J., filed a dissenting opinion, in which Kagan, J., joined. Breyer, J., filed a dissenting opinion, in which Kagan, J., joined as to Part I. Sotomayor, J., filed a dissenting opinion.).

[39] Id., slip op., at 5 (Roberts, C.J.).

[40] Id., slip op., at 2-3 (Alito, J., concurring) (“Named after House Speaker James Blaine, the Congressman who introduced it in 1875, the amendment was prompted by virulent prejudice against immigrants, particularly Catholic immigrants.”).

[41] See generally Legal Docket. Episode 4: Religious Education Discrimination (August 18, 2020) (podcast).

[42] Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (U.S. July 8, 2020) (Alito, J., delivered the opinion of the court, in which Roberts, C. J., and Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.).

[43] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431 (U.S. July 8, 2020) (Thomas, J., delivered the opinion of the court, in which Roberts, C. J., and Alito, Gorsuch, and Kavanaugh, JJ., joined. Alito, J., filed a concurring opinion, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment, in which Breyer, J., joined. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.).

[44] See Espinoza, slip op., at 1-3, 8-9 (Thomas, J., concurring) (“The Free Exercise Clause, although enshrined explicitly in the Constitution, rests on the lowest rung of the Court’s ladder of rights, and precariously so at that. Returning the Establishment Clause to its proper scope will not completely rectify the Court’s disparate treatment of constitutional rights, but it will go a long way toward allowing free exercise of religion to flourish as the Framers intended.”).

[45] See Fulton v. City of Philadelphia, No. 19-123 (Cert. granted) (whether Philadelphia’s, in barring a religious institution from placing children in foster homes because they would not choose homes of same-sex couples, violated the First Amendment).

[46] Seila Law LLC v. Consumer Financial Protection Bureau.  (Roberts, C. J., delivered the opinion of the court with respect to Parts I, II, and III, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined, and an opinion with respect to Part IV, in which Alito and Kavanaugh, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Gorsuch, J., joined. Kagan, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.).

[47] Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting).

[48] U.S. Const., Art. II, §1 (Vesting Clause) (emphasis added).

[49] See also,Hernandez v. Mesa, similarly foreclosing the availability of new Bivens claims without outright overruling Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

[50] The House of Representatives defended the CFPB structure because the Department of Justice agreed with Seila Law firm that the structure violated the separation of powers.

[51] Barr v. American Assn. of Political Consultants, Inc., No. 19-631 (U.S. July 6, 2020) (Kavanaugh, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Alito, J., joined, and in which Thomas, J., joined as to Parts I and II. Sotomayor, J., filed an opinion concurring in the judgment. Breyer, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Ginsburg and Kagan, JJ., joined. Gorsuch, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined as to Part II.).

[52] California v. Texas, No. 19-840 (Cert. granted) (whether nullifying the Affordable Care Act’s noncompliance penalty renders the minimum-essential-coverage requirement unconstitutional, and, if so, whether that provision is severable).  This case testing the constitutionality of the Affordable Care Act is set for argument on November 10, one week after the election.

[53] Department of Homeland Security v. Thuraissigiam, No. 19-161 (U. S. June 25, 2020) (Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Sotomayor, J., filed a dissenting opinion, in which Kagan, J., joined.).

[54] Id.

[55] Barton v. Barr, No. 18-725 (U.S. April 23, 2020) (Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.).

[56] Nasrallah v. Barr, No. 18-1432 (U.S. June 1, 2020) (Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a dissenting opinion, in which Alito, J., joined.); see also Guerrero-Lasprilla v. Barr, No. 18-776 (U.S. March, 23, 2020).

[57] Trump v. Mazars USA, slip op., at 1 (Roberts, C.J.).

[58] Those factors are: (1) the legislative purpose, (2) the scope of the subpoena, (3) the nature of evidence justifying the subpoena, and (4) burdens imposed on the President.  Id., slip op., at 19-20.

[59] Trump v. Vance, slip op., at 1 (opinion of Roberts, C.J.).

[60] Id., slip op., at 21.

[61] Id., slip op., at 20.

[62] Feldman, supra., n.4.

[63] Id., at 23.

[64] Id.

[65] Id.

[66] Id.

[67] Need I mention that these nine unelected jurists have neither the “will” nor “force” to reshape society, only a pen to settle live cases or controversies with?

[68] See, e.g., Bostock.

[69] See, e.g., id. (Alito, J., dissenting); Seila Law (Kagan, J., dissenting); Little Sisters (Ginsburg, J., dissenting); McGirt (Roberts, C.J., dissenting).

[70] See, e.g., New York State Rifle & Pistol Assn. (dismissed for mootness).

[71] See, e.g., Vance (Kavanaugh, J., concurring in judgment, joined by Gorsuch, J.) (approving subpoena of President Trump, who nominated both men).

[72] See, e.g., Regents (APA decision); Little Sisters (same).

[73] See, e.g., June Medical (Roberts, C.J., concurring in judgment) (narrowing Hellerstedt); Espinoza (expanding Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)).

[74] See, e.g., Seila Law (severing provision, not striking down the entire CFPB).

[75] Accord Rucho v. Common Cause, (Roberts, C.J.) (“This Court’s authority to act, . . . is ‘grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.’”).

Should Judges Have “Take your Spouse to Work Day”?

Photo by Bill Oxford on Unsplash

Chloe Knue, Blog Editor, University of Cincinnati Law Review

I. Introduction

Courtrooms, by design, are formal places. They are adorned with wood-paneling, rich colors, and the official state or federal seal. The setting is intended to convey the seriousness of the matters at stake. People go to court to resolve life-changing issues, like disputes over large sums of money. Some disputes can even result in a person’s physical imprisonment. And one individual is responsible for leading these formal proceedings—the judge. Thus, judges are bound by their respective state’s Code of Judicial Conduct. These codes demand that judges act with and maintain strict professionalism.

A trial judge in Colorado had an interesting take on what it means to be a professional.[1] Not only did Judge Thomas Ensor allow his wife to sit on a jury that returned a criminal conviction, but he repeatedly joked about his connection to the juror.[2] He said things like, “‘Be nice to Juror 25. My dinner is on the line;’” “‘You forced her to spend more time with me;’” and “‘I’m getting chicken again? Oh God.’”[3] But the Colorado Supreme Court let these comments, and several others, slide when it upheld the conviction this past June.[4]

II. Background

In Richardson v. People, the defendant, Gary Val Richardson, faced a slew of criminal charges.[5] He allegedly fired one or two shots at police officers while in possession of a controlled susbtance.[6] On top of that, he was a repeat offender.[7] The jury found him guilty of several crimes, including attempted second degree assault.[8] Judge Ensor sentenced him to 16 years in prison.[9] Mr. Richardson appealed his conviction all the way to the Colorado Supreme Court.[10] But unfortunately, that appeal had nothing to do with the merits of the case.[11] The defense impliedly called into question the judge’s professionalism.[12] And the record speaks for itself.[13]

It all starting during voir dire.[14] Juror 25 indicated on her juror questionnaire that she was married to the judge.[15] Outside the presence of the prospective jurors, Judge Ensor told the prosecution and the defense to “‘[b]e nice to Juror 25.’”[16] Apparently, both attorneys took that advice seriously—neither moved to strike Juror 25.[17] Thereafter, the record reflects the following conversation:

            [DEFENSE COUNSEL]: I think we’re both afraid to challenge her.

            [THE COURT]: That wasn’t a stupid idea. Thank you. I appreciate it.[18]

From then on, the judge’s relationship to Juror 25 was a source of comic relief.[19] Judge Ensor joked about what he and his wife were having for dinner, the fact that “[he] said no to [his] wife[,]” and that his wife was forced to spend time with him.[20] The Colorado Supreme Court reviewed the record and released two opinions on June 1st.[21]

The majority and the dissent analyzed the issues differently.[22] The majority asked three main questions: “[1] whether [Mr.] Richardson waived his challenge to Juror 25 . . . [2] whether the trial judge had a duty to sua sponte excuse Juror 25 or [3] recuse himself from the trial.”[23] The majority answered all three questions in favor of the People.[24] It pointed out that the defense had an opportunity during voir dire to object to Juror 25 but failed to do so.[25] It also noted “‘a trial judge is not required to excuse a prospective juror sua sponte.’”[26] In addition, the majority explained that “neither a statute nor the [Colorado] Code [of Judicial Conduct] expressly requires a judge to sua sponte disqualify himself when he is related to a juror.”[27]

The dissent, on the other hand, employed a two-prong analysis.[28] First, it asked whether there was an error.[29] It named several but mainly pointed to a judge’s duty to “‘avoid impropriety and the appearance of impropriety.’”[30] Second, the dissent asked whether this was a structural error.[31]  A structural error is something that would “taint” the whole trial.[32] The dissent answered that question in the affirmative; the prejudicial effect was beyond measure.[33] Thus, the dissent would have reversed and remanded the case.[34]

This case presents some interesting issues. As a result, it was covered by various news outlets, including the American Bar Association.[35] Part III will weigh in on the unconventional conversation surrounding this case.  

III. Discussion

Judge Ensor should have removed his wife from the jury sua sponte. This position can be broken down into two subpoints: (1) a judge’s duty to conduct him or herself as a professional; and (2) the intent behind the Judicial Code of Conduct. These two points will be addressed in that order.

It is important that all members of the workforce carry themselves in a professional manner. This is the only way to earn respect. And people will take the things you say more seriously. But this point is particularly important for judges. Judges serve on the bench as government representatives; they are lawyers who have attained a prestigious role. For those reasons, judges have a heightened duty to carry themselves as professionals and conduct their courtroom in a professional manner. When members of the public go to court, it is never a joyous occasion. There is time, money, and—most significantly—liberty on the line. A judge should never be making jokes on what is potentially the worst day of a person’s life. Mr. Richardson received a sentence of over a decade in prison. When you lose in court, it can be earth-shattering. But what makes that loss even more devastating is walking out feeling like you did not get a fair shake. Every state and federal judge has a responsibility to legitimize the American court system. Each time Judge Ensor joked about having chicken for dinner or saying no to his wife, he set the perception of the American court system back. He failed as a leader and as a dignified arbitrator. And that is unacceptable. Whether a judge is presiding over a murder trial or a trial for attempted second degree assault, he or she should take it seriously and be a professional.

True enough, there is no explicit duty in the Colorado Judicial Code of Conduct to remove your spouse from the jury. But as the dissent pointed out, there is an overarching duty to avoid the appearance of impropriety, which is a critical responsibility. The entire court system hinges upon one principle—fairness. If that comes into question, the court system’s integrity could fall apart. That is why this decision should not come down to a mere technicality. No, the Judicial Code of Conduct does not instruct judges, verbatim, to remove their spouses. But the drafters of the Code should not be forced to sit down and think of every possible way that unfairness could creep into a criminal trial. Judges are smart people. They are leaders, scholars, and problem-solvers. They know—hopefully—right from wrong. They should be able to reflect upon the overarching purpose of their state’s Judicial Code of Conduct and make an ethical decision. Judge Ensor should have asked himself: How will it look to have my wife deliver the verdict? And, before making jokes about the circumstances, he should have asked himself: Will this undermine public confidence in my sentencing? And if there was any doubt, Judge Ensor should have instructed the attorneys to find a new Juror 25. There were literally thousands of other people who could have fulfilled the role.

IV. Conclusion

Legitimate legal arguments can be made on both sides of this case. The majority argued that Judge Ensor could have carried himself in a more professional manner, but his jokes probably did not influence the outcome of the trial.[36] The dissent disagreed, feeling strongly about the duty to avoid the appearance of impropriety. But at this point, it is necessary to hit pause and ask: Is a legal analysis really necessary here? Or could a person arrive at the correct conclusion by relying on a much simpler skill—say, common sense?[37] The question is: Should you bring your spouse with you to work? No. That single question could end the inquiry.


[1] Richardson v. People, 2020 CO 46, 2020 WL 2829847, *1 (Colo. 2020).

[2] Id. at *2.

[3] Id. at *2-*3, *6.

[4] Id. at *2, *19.

[5] Id. at *2-*3.

[6] Richardson at *2-*3

[7] Id. at *3; *2 (Gabriel, J., dissenting) (referring to Mr. Richardson as “a habitual criminal”).

[8] Id. at *6-*7 (“The jury ultimately found [Mr.] Richardson guilty of two counts of attempted second degree assault, three counts of attempted third degree assault (as lesser included offenses), one count of violation of bail bond conditions, and one count of possession of a controlled substance.”).

[9] Id. at *7.

[10] Id. at *7-*8 (citing n. 1).

[11] Richardson at *7-8 (The Colorado Supreme Court summarized the argument made at the appellate level as follows: “[Mr.] Richardson appealed, contending among other things that Juror 25’s participation on the jury violated his constitutional right to a fair trial before an impartial jury and was therefore structural error mandating reversal.”).

[12] Id.

[13] Id. at *2-*6.

[14] Id. at *3.

[15] Id.

[16] Richardson at *3.

[17] Id. at *4-*5.

[18] Id. at *5.

[19] Id. at *5-*6.

[20] Id.

[21] Richardson at *8 (citing n. 1).

[22] Id. at *2-*19; *1-*13 (Gabriel, J., dissenting).

[23] Id. at *8.

[24] Id.

[25] Id. at *10 (“Crim. P. 24(b)(2) instructs that ‘[a]ll matters pertaining to the qualifications and competency of . . . prospective jurors shall be deemed waived by the parties if not raised prior to the swearing in of the jury to try the case.’”) (citing Section 13-71-140, C.R.S. (2019); *11 (“The trial judge even seemed to invite defense counsel to exercise a peremptory challenge to Juror 25 when he stated, ‘[Juror 25]? We have the defendant’s fifth peremptory challenge . . . . I need you to make the call.’ Defense counsel responded by excusing a different juror. Thus, Richardson, through counsel, intentionally relinquished his right to challenge Juror 25.”) (citing n. 2).

[26] Richardson at *14 (People v. Abu-Nantambu-El, 454 P.3d 1044, 1052 (Colo. 2019)) (citing People v. Coney, 98 P.3d 930, 934 (Colo. App. 2004)).

[27] Id. at *17.

[28] Id. at *4-*5 (Gabriel, J., dissenting) (citing Hagos v. People, 288 P.3d 116, 118-19 (Colo. 2012).

[29] Id. at *7 (Gabriel, J., dissenting).

[30] Id. (Gabriel, J., dissenting) (citing Colorado Code of Judicial Conduct 1.12) (emphasis added).

[31] Richardson at *11 (Gabriel, J., dissenting).

[32] Id. (Gabriel, J., dissenting).

[33] Id. at *6 (Gabriel, J., dissenting) (“An error is also structural when ‘the effects of the error are simply too hard to measure,’ as, for example, when a defendant is denied the right to select his or her own attorney.”) (quoting Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991); *12 (“Because these facts defy any showing of prejudice, I would conclude that the errors here were structural.”) (citing Weaver v. Massachusetts, 137 S. Ct. at 1907-08).

[34] Id. at *1, *13 (Gabriel, J., dissenting).

[35] Debra Cassens Weiss, http://www.abajournal.com/news/article/man-convicted-by-jury-that-included-judges-wife-isnt-entitled-to-new-trial-top-state-court-says, ABA Journal (June 4, 2020) (This article notes that Judge Ensor is now retired).

[36] Richardson at *2 (“While the trial judge could have handled this unusual situation in a more restrained manner, his failure to do so did not create a reversible error.”)

[37] Id. at *12 (Gabriel, J., dissenting) (Justice Gabriel refers to this as “the intuitive result[.]”).

Ohio Courts Should Put an End to Unconstitutional General Assembly Regulations on the People’s Referendum Power

Photo by Oz Seyrek on Unsplash

William Malson, Blog Editor, University of Cincinnati Law Review

I. Introduction

In 1912, the Ohio Constitution was amended to include the people’s right of referendum, a power that could be exercised against the General Assembly to overturn laws by popular vote. The mechanics and limitations of this power are specified in great detail in Article II of the Ohio Constitution. Courts have consistently held that, to effectuate the right of referendum, the power should be liberally construed, and laws exempted from that power must be plainly and persuasively included in the exceptions in Article II, § 1d. Puzzlingly, courts have limited this construction to apply to constitutional limitations, rather than statutory ones. Statutory regulation, by contrast, must be strictly adhered to unless the statute specifically allows for substantial, and not total, compliance. In effect, General Assembly regulations on the referendum power are given greater effect than constitutional limitations on that same power. Even more puzzling is the position of courts, unwavering since the referendum power was adopted, that the power is itself legislative in nature, undelegated, and reserved by the source of the legislative power itself—the people. And yet, courts uphold costly and time-consuming regulations placed on the people’s exercise of their legislative power by the General Assembly.

The referendum power should at least be liberally construed against General Assembly regulations. These regulations should not be construed more strictly than constitutional limitations on the same power. However, to be consistent with the plain language of the Ohio Constitution, and court interpretations of the referendum power as legislative in nature, all General Assembly regulations on that power should be overturned. Part II of this article presents the origins of the referendum power. Part III presents courts’ interpretations of that power as legislative. Part IV presents example General Assembly regulations on the referendum power and explains their cost. Part V concludes.

II. The Origins of the Referendum Power

The Ohio Constitution is remarkably specific in its construction of the referendum power: the minimum signature requirements are announced, a timeline is set, ministerial actions are compelled, and the result of the entire process is given constitutional weight. The people’s referendum power over General Assembly regulations is delineated in Article II, §§ 1c-g of the Ohio constitution.[1] Section 1c lists the requirements of a referendum petition and the procedure for putting the referred law to a general vote.[2] These requirements, together with other limitations in Article II, constitute the “machinery to carry out the referendum” as it was adopted by the Ohio Constitutional Convention of 1912.[3] Rather than generally describing a right held by the people, § 1c presents the process “with the particularity of detail usually found only in legislative acts,”[4] “leaving nothing to the action of the general assembly.”[5] In effect, the people have regulated themselves, adopting a procedure for the overturning of General Assembly laws. It is then no surprise that courts have interpreted this procedure as itself Legislative in nature.

III. The Legislative Nature of the Referendum Power

The constitutional referendum process has been interpreted by Ohio courts—and the Supreme Court of the United States—to be legislative.[6] The referendum power is, by the Ohio constitution’s description, reserved by the people.[7] Prior to the adoption of the referendum power, the Ohio constitution vested the legislative power solely in the General Assembly.[8] By adopting the right of referendum, the people expressly limited the General Assembly’s legislative power by reserving to themselves the power to reject laws by popular vote.[9] This power is not a delegation from the legislature to the people, but a specific reservation of power ultimately derived from the people.[10] As a result of this reservation, the term “legislature” in Ohio now not only includes the two branches of the General Assembly but “the popular will as expressed in the referendum provided for in Sections 1 and 1c of Article II of the Ohio Constitution.”[11]

This interpretation is not novel.[12] Two cases are of particular interest: State ex rel. Davis v. Hildebrant, and the Supreme Court of the United States’ affirmation of the same in Ohio ex rel. Davis v. Hildebrant.[13] In 1915, a referendum petition seeking to overturn a redistricting act of the General Assembly completed the constitutional process and was submitted to Ohio voters.[14] The referendum was successful and the law was rejected.[15] A dissatisfied citizen filed suit in the Ohio Supreme Court seeking a writ of mandamus asking that the referendum proceedings be declared invalid, and that the law be upheld.[16] In refusing the writ, the court asked a question central to this article’s argument: Does the term “legislature” as used in Article I, § 4 of the U.S. Constitution comprehend “simply the representative agencies of the state,” or does it comprehend the “various agencies in which is lodged the legislative power to make, amend and repeal the laws of the state”—including the power reserved to the people enabling them to adopt or reject General Assembly Laws?”[17] Certainly the legislative power has been delegated to the Ohio Senate and House of Representatives, but the people of Ohio have, through the referendum power found in Article II, imposed conditions under which laws passed by the bicameral body may become overturned.[18] Nowhere is “legislature” defined to mean a bicameral body: Webster’s New International Dictionary defines it as the “body of persons in a state, or politically organized body of people, invested with power to make, alter and repeal laws.”[19] The Century Dictionary defines it even more broadly, as “[a]ny body of persons authorized to make laws or rules for the community represented -by them.”[20] Even at the time of the U.S. Constitution’s creation, the legislatures of Pennsylvania, Georgia, and Vermont consisted of a single house.[21] It is the people, not a unicameral or bicameral body, who designate an agency as the state lawmaking body, and it is the people’s right to impose on that agency “any checks or conditions under which a law may be enacted and become operative.”[22] Prior to the adoption of the referendum power, the “legislative power” of the state was vested in the General Assembly—but by the adoption of the amendment of 1912 the people limited this power.[23]  In affirming the Supreme Court of Ohio’s decision, the Supreme Court of the United States found that, by adopting the referendum power, the legislative power was “expressly declared to be vested not only in the . . . General Assembly, but in the people in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.”[24]

If the referendum power is truly legislative, it is surprising that courts would accept General Assembly regulations on a legislative body from where their power originates. And yet, regulations are consistently upheld, costing petitioners signatures, time, and hundreds of thousands of dollars.

IV. General Assembly Regulations on the Referendum Power

Despite the clear language of Article II and the courts’ position that the referendum power is reserved by the people, the General Assembly has imposed numerous burdensome regulations on the exercise of that power. Would-be petitioners must drudge through an arduous statutory process before the constitution process is even begun. For instance, ORC 3519.01(B) requires persons seeking to refer a law to create an additional petition, summarize the law, circulate the petition, have it signed by 1,000 electors, and submit it to the Secretary of State and the Attorney General, who must examine the referendum summary and certify it within ten business days if it is a “fair and truthful statement of the measure to be referred.” No hint of this requirement exists in the Ohio constitution. In practice, summarizing a long and complicated law for the average voter can result in a month-long delay—or a rejection entirely—before a referendum petition enters the constitutional process, reducing the constitutionally-allotted ninety-days by one-third, or negating the right entirely.

The most recent referendum attempt in Ohio came on the heels of the passage of Amended Substitute House Bill 6 (“H.B. 6”), signed into law on July 23, 2019.[25] H.B. 6 established the nuclear generation fund out of which qualifying nuclear power plants in Ohio would receive approximately $1.05 billion over the next seven years.[26] Petitioners attempting to submit the law for referendum filed their first summary of the law with the Attorney General’s office on July 29, 2019.[27] The Attorney General rejected the petition’s summary as inaccurate on August 12, fourteen calendar days later.[28] Petitioners submitted a revised summary on August 16, approved by the Attorney General on August 29, thirty-one calendar days after the first summary was submitted—thirty-seven days after the law was passed—a loss of over one-third of the constitutionally allotted time.[29]

In addition to losing time, petitioners can lose signatures by complying with ORC 3519.16. This section of the Ohio Code requires petitioners to file electronic copies of each part-petition—copies of the petition circulated by an individual within a county—numbered sequentially, along with a summary of the number of part-petitions filed per county and an index of the electronic copy. In practice, this regulation is extremely time-consuming and expensive, costing hundreds of thousands of dollars and necessitating the destruction of tens of thousands of signatures that may not strictly comply with the additional statutory requirements of 3519.16.[30]

Worst of all, petitioners may have their entire petition invalidated if even a single person fails to file the required form under ORC 3501.381(A). This regulation requires persons to file statements who will give or receive compensation for “supervising, managing, or otherwise organizing any effort to obtain signatures” for referendum petitions. The Ohio Secretary of State supplies the form, today known as Form 15,[31] which must be filed prior to the date the person gives or receives compensation, or obtains signatures for the petition, whichever is later.[32] Failure to properly file a Form 15 results in invalidation of the entire petition—not just the part-petition for which the person was gathering signatures.[33] The Ohio Supreme Court interpreted this penalty in Ohio Renal Association. v. Kidney Dialysis Patient Protection Amendment Commt. (“ORA”).[34]

In ORA, the Ohio Renal Association challenged an initiative petition to place a constitutional amendment on the November 6, 2018 ballot proposed by respondents Kidney Dialysis Patient Protection Committee.[35] Relators did not allege that any of respondent’s petitioners failed to file the required disclosures under ORC 3501.381, but that four individuals and two companies failed to file the requisite form before circulators under their supervision obtained signatures for the petition.[36] Although the court reaffirmed its obligation to “liberally construe” the people’s legislative rights, it presented the contradictory standard that “when an election law is clear, ‘the settled rule is that [it is] mandatory and require[s] strict compliance.’”[37] There, the court found that ORC 3501.381(A)(1) was abundantly clear that individuals or entities who are compensated or who will compensate others are prohibited from collecting signatures before they have filed a Form 15 with the Secretary of State.[38] ORC 3501.381(C) provides that if division (A) is violated, the petition—not just the affected part-petitions—on which the individual or entity was working on shall be deemed invalid.[39] Therefore, since “strict compliance” with the law is required, the entire petition must be invalidated.[40]

In a merit brief attached to ORA, respondents detailed the enormous efforts taken to comply with Ohio statutory regulations on the constitutional power of referendum. At virtually every step of the petition-circulation process, the committee was forced to spend additional time, money, and manpower to comply with the regulations imposed by ORC 3519.16(B).[41] Circulation managers performed initial quality-control checks for compliance, transported the part-petitions to a central office for a second quality-control check, and returned any defective part-petitions to the circulators to correct errors, which were subject to another quality-control check after being filled out correctly.[42] Prior to this stage, the part-petitions could not be numbered in compliance with 3519.16(B), another step costing extra time and money. All of these steps had to be completed before the electronic copy of the part-petition could be created in compliance with Ohio law—part-petitions could not be scanned before they were numbered, and they could not be numbered before they had passed every prior stage.[43] The combined effect of the statutory burdens of ORC 3519.16 and 3501.381 lead to possible errors in the required summary, and necessitated the outlay of approximately $230,527.[44] To put the difficulty of the electronic copy requirement alone into perspective, respondents had to scan “nearly 20,000 part-petitions, each containing 14 stapled pages-or approximately 280,000 separate pieces of paper.”[45]

These are just three of the regulations that limit and restrict the people’s exercise of their referendum power. What might be argued, despite the burdens imposed above, is that such laws may be constitutional as long as the referendum power is liberally construed against those laws. But as the court demonstrated in ORA, courts do not construe General Assembly regulations the same as constitutional limitations. In fact, courts give greater deference in this area to acts of the bicameral body than to the constitutional guarantees of Article II, § 1c. One person’s failure to properly file a one-page form results in the death of the petition.

V. Conclusion

General Assembly regulations on the people’s referendum power are inconsistent with the plain language of the Ohio Constitution and court interpretations of the referendum power as legislative. The detailed machinery of the referendum should constitute the entire process that, constitutionally, people must follow in order to refer a law. Somehow, people exercising their right of referendum are both the ultimate source of legislative power and yet subject to the regulatory conscience of the General Assembly. Courts have allowed the General Assembly to steamroll the people’s power by imposing enormous costs and restrictions on the same, in work hours, financial costs, and time-consuming requirements that narrow the already small window for referendum. Even if petitioners can safely navigate the tedious minutiae of ORC 3519.01 and 3519.16, there is a landmine waiting in 3501.381: If even one person files Form 15 one day late, the entire petition is invalidated.

Ohio courts must resolve these internal contradictions. Courts should liberally construe the referendum power against General Assembly regulations, not just constitutional limitations. However, in order to be entirely consistent with the text and intent of the Ohio constitution, courts should overturn all General Assembly regulations on the people’s power of referendum as delineated in Article II.


[1] Oh. Const. Art. II, § 1c-1g. § 1c specifies that any referendum petition must have signatures attached totaling six percent of the electors of the state. Such a petition must be filed with the Secretary of State within ninety days after the law it seeks to refer has been filed by the Governor with the Secretary of State. At such time, the Secretary shall submit the petition to the electors for their approval or rejection.

[2] Id. at § 1c.

[3] Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).

[4] State ex rel. Keller v. Forney, 108 Ohio St. 463, 467, 141 N.E. 16 (1923).

[5] Shryock v. Zanesville, 92 Ohio St. 375, 382, 110 N.E. 937 (1915).

[6] See State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 114 N.E. 55 (1916); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).

[7] Oh. Const. Art. II, §§ 1 & 1c.

[8] State ex rel. Davis v. Hildebrant, 94 Ohio at 162.

[9] Id.

[10] Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 672, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976).

[11] State ex rel. Davis v. Hildebrant, 94 Ohio at 154.

[12] See Id. and Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).

[13] Id.

[14] State ex rel. Davis v. Hildebrant, 94 Ohio St. at 155.

[15] Id. at 156.

[16] Id. at 155, 157.

[17] Id. at 160.

[18] Id.

[19] Id. at 162 (emphasis added).

[20] Id. (emphasis added).

[21] Id. at 163.

[22] Id. at 162.

[23] Id. In disposing of a related case, Ohio Chief Justice Fuller opined that the legislative authority is supreme “except as limited by the constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed.” McPherson v. Blacker, 146 U.S. 1, 25, 13 S.Ct. 3, 36 L.Ed. 869 (1892) (emphasis added).

[24] Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).

[25] The Ohio Legis., House Bill 6: Status (2019), https://www.legislature.ohio.gov/legislation/legislation-status?id=GA133-HB-6.

[26] See Creates Ohio Clean Air Program, 2019, Am. Sub. H. B. No. 6, 2019, Ohio Laws File 12, § 3706.49; See generally William Malson, H.B. 6: Is this the End of Nuclear Power in Ohio? Univ. of Cincinnati L. Rev. (Sept. 11, 2019), https://uclawreview.org/2019/09/11/h-b-6-is-this-the-end-of-nuclear-power-in-ohio/.

[27] List of petitions submitted to the Attorney General’s Office, Ohio Att’y Gen., https://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives/Petitions-Submitted-to-the-Attorney-General-s-Offi (last visited April 30, 2020).

[28] Id.

[29] Id.

[30] OHIO RENAL ASS’N v. KIDNEY DIALYSIS PATIENT PROT. AMEND., 2018 OH S. Ct. Briefs LEXIS 1543, 58, 60, 61-62.

[31] Form No. 15: Statement of Receiving or Providing Compensation For Circulating a Statewide Issue Petition, Ohio Sec’y of State (Sept. 2017), https://www.sos.state.oh.us/globalassets/elections/forms/15.pdf.

[32] ORC 3501.381(A)(1) and (2).

[33] ORC 3501.381(C).

[34] 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 24.

[35] Id. at 86. While this case is about a proposed constitutional amendment, and not the referendum power, the regulation applies to both, and this case is demonstrative of the burdens that Ohio regulations impose.

[36] Id. at 88.

[37] Id. at 88.

[38] Id. at 91.

[39] Id. at 92.

[40] Id.

[41] OHIO RENAL ASS’N v. KIDNEY DIALYSIS PATIENT PROT. AMEND., 2018 OH S. Ct. Briefs LEXIS 1543, 56.

[42] Id. at 57.

[43] Id. at 58.

[44] Id. at 58, 60.

[45] Id. at 59.

To Waive or Not to Waive? Employer Liability During the COVID-19 Crisis

Photo by Anshu A on Unsplash

Sam Berten, Blog Editor, University of Cincinnati Law Review

I. Introduction

COVID-19 has affected nearly every aspect of our daily lives. The United States has reported over 4.5 million cases, with just over 153,000 deaths.[1] Because of the impact of the virus, some businesses now require customers and workers to sign liability waivers.[2] Liability waivers typically release a party from any damage that may result from participating in an activity or performing under a contract.[3]

However, these liability waivers may not exempt employers or businesses from legal action. Liability waivers are not a panacea for every kind of claim that might arise.  Both employee waivers and customer waivers could present potential issues for employers. Additionally, some employees may be wary of signing a waiver for fear of losing their legal recourse.[4] This article will discuss the applicability and enforceability of liability waivers, and how courts may choose to interpret liability waivers in light of the COVID-19 crisis.

II. Background

Liability waivers may curb liability for common negligence suits, but they will not block claims of intentional or wanton misconduct, or gross negligence.[5] Further, the waiver only releases the named party from liability as explicitly stated in the waiver itself.[6] These waivers must be clear and understandable, and should be tailored to the business at hand.[7] Additionally, some states require the customer or employee to sign the waiver, so it can’t simply be posted at an entrance.[8]

Liability waivers are also a contract between two designated parties, including a business and a customer, not just an employee. If, by chance, the customer contracts COVID-19 and goes home and infects someone outside of the waiver’s terms, such as a family member or a neighbor, that family member or neighbor may be able to bring an action against the nail salon.[9] However, the difficulty with waivers is “contact tracing and proving fault.”[10]

Also, if an employer asks an employee to sign a liability waiver, that waiver will not protect the employer from Occupational Safety and Health Administration (“OSHA”) complaints if a workplace is dangerous.[11] But the President signed an executive order directing federal agencies (such as OSHA) to “make exceptions for employers who attempt in good-faith to follow agency regulations during the COVID-19 pandemic.”[12]

Thirteen states to date[13] Three states do not enforce liability waivers are unenforceable.[14] Courts in New York, for example, have stated that liability waivers are only enforceable if: “(1) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable language, and (iii) the provisions are clear and coherent.”[15]

However, “it’s hard to know how state courts would view such [COVID-19] waivers.”[16]

“[B]ecause no court has considered whether a liability waiver is enforceable in the context of a pandemic, or whether such a waiver would be void as against public policy, it is unclear whether a COVID-19 waiver relieving an entity of liability for exposure on its premises would be enforceable … From a public policy perspective, it is possible that liability waivers in this context may be deemed enforceable so that these non-essential businesses can operate with some level of protection.”[17]

John Abegg, executive vice president of the U.S. Chamber Institute for Legal Reform, has stated that a new federal law is being proposed to “create a safe harbor for businesses and nonprofit organizations, including colleges and universities, that follow federal or state guidelines for COVID-19.”[18] Harold Kim, president of the U.S. Chamber Institute for Legal Reform, clarified this, explaining that businesses will not be granted immunity if they were grossly negligent.[19]

As of June 17, 2020, there were 2,741 lawsuits filed in the U.S. because of COVID-19.[20] The majority of the cases were complaints over government shutdown orders and essential business designations.[21] Seven came from consumers and 49 were filed by employees because of exposure to COVID-19.[22]

III. Analysis

Courts will be forced to grapple with the issue of COVID-19 liability when the pandemic quiets and the courts resume. This is largely uncharted territory. Liability waivers, in general, are enforceable in most states. But there are many unanswered questions that judges at every level of the judiciary will have to sort through.

For instance, if an employer has an employee sign a COVID-19 liability waiver, and the employee contracts COVID-19 from their workplace, will the employer be liable? The information in the foregoing section seems to indicate that if the employer was acting in good faith and following proper guidelines, they wouldn’t be liable, especially in states that have expressly limited liability due to COVID-19 related causes. Courts may also find that employee liability waivers are unenforceable because of the unequal bargaining power between the parties. Employees who are forced to return to work by their employer and must choose between signing a waiver or losing their job are on a different playing field than their employer, which may result in an unenforceable waiver. If this is the case, employees may be able to raise claims related to COVID-19 against their employers but depending on the good faith efforts of their employers, the employer may have safe harbor.

Customers’ waivers may be enforceable since customers could simply choose to shop elsewhere if they didn’t want to sign a waiver, but if the business is not following proper guidelines or is acting with gross negligence, the business could still be liable.

IV. Conclusion

This is a tough time for businesses, customers, employees, employers, local governments, state governments, the federal government, and all of America. COVID-19 has affected every industry and nearly every aspect of our lives. Businesses are floundering and struggling to survive. They want to reopen, but the impending threat of a lawsuit if someone contracts COVID-19 at their business is massive.

Liability waivers may be a helpful solution in some cases, especially as a way of recording that the business was trying its best to adhere to the guidelines and to act in good faith. However, since modern courts haven’t discussed the issue of enforceability of liability waivers during a pandemic, it is unclear whether courts will adhere to a waiver in the event of a lawsuit. Additionally, if a customer or employee’s family member or close relation contracts COVID-19, that family member or close relation could likely raise a claim against the business or employer. Thus, COVID-19 still presents a massive liability risk, even with a waiver in place. Hopefully, state governments and/or the federal government will provide guidance for the judiciary to delineate good faith actions from negligent actions during this pandemic.


[1] Coronavirus in the U.S.: Latest Map and Case Count, The New York Times (July 31, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

[2] Tom Krisher & Mark Sherman, Businesses want customers and workers to give up their right to sue over COVID-19. Can they do that?, The Chicago Tribune (June 17, 2020), https://www.chicagotribune.com/business/ct-biz-coronavirus-liability-waivers-20200616-pk2mcrbxyjgzxctqy63toz54hu-story.html

[3] Waiver and Release from Liability Law and Legal Definition, USLegal.com [not dated], https://definitions.uslegal.com/w/waiver-and-release-from-liability/.

[4] Krisher & Sherman, supra note 2.

[5] Laura Lorek, How Effective are Liability Waivers in the Age of the Novel Coronavirus?, ABA Journal (July 2, 2020), https://www.abajournal.com/web/article/understanding-liability-waivers-in-the-age-of-covid-19.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Benjamin Ross & Samantha Saltzman, Can Employers use COVID-19 Waivers to Limit Liability?, Fisher Phillips (May 26, 2020), https://www.fisherphillips.com/resources-alerts-can-employers-use-covid-19-waivers-to.

[12] Id.

[13] If the employer is acting in good faith and accordance with governmental guidance; Jim Paretti & Michael J. Lotito, States Enact Laws Limiting COVID-19 Liability, Littler Mendelson (July 1, 2020), https://www.littler.com/publication-press/publication/states-enact-laws-limiting-covid-19-liability; Lorek, supra note 5 (Alaska, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Oklahoma, Utah, Wisconsin, and Wyoming).

[14] Lorek, supra note 5; Briana Clark, Katie Jacobs, Kimberly O’Donnell, Yi Zhou, Enforceability of Liability Waivers to Protect Against COVID-19 Claims, JD Supra (June 5, 2020), https://www.jdsupra.com/legalnews/enforceability-of-liability-waivers-to-39970/ (Virginia, Louisiana, and Montana).

[15] Clark, Jacobs & O’Donnell, supra note 14; See, e.g., Gross v. Sweet, 400 N.E. 2d 306, 309 (N.Y. 1979).

[16] Krisher & Sherman, supra note 2.

[17] Clark, Jacobs & O’Donnell, supra note 14.

[18] Lorek, supra note 5.

[19] Krisher & Sherman, supra note 2.

[20] Id.

[21] Id.

[22] Id.

The Use of Force: The Proper Timeframe to Assess Reasonableness in Excessive Force Cases

Photo by AJ Colores on Unsplash

Brianna Vollman, Blog Editor, University of Cincinnati Law Review

I. Introduction

Over the past two months, protestors have filled the streets of United States cities, large and small, to protest police brutality and the deaths of Black Americans at the hands of police.[1] Primarily sparked by the death of George Floyd, a Black man who was suffocated by a white police officer in Minneapolis during his arrest, protestors march worldwide for racial justice and for police accountability.[2] Multiple bills have been written to attempt to address systemic racism and the misdeeds of the police, notably, Representative Justin Amash has written a bill that would abolish the doctrine of qualified immunity.[3] Excessive force is a core issue of police brutality.

II. Circuit Split

Less than two weeks before George Floyd’s death, the Fifth Circuit weighed in on a circuit split relevant to the police and the use of force.[4] The circuit split has existed for two decades regarding the proper timeframe to assess the reasonableness of the use of force in police misconduct claims, created by Section 1983 of the United States Code.[5] The use of excessive force during a seizure, often times an arrest, violates the Fourth Amendment, which protects citizens against unreasonable searches and seizures.[6] The Supreme Court has explained that analysis of reasonableness of force under this section must necessarily look to the facts and surrounding circumstances, such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[7] The Fifth Circuit has articulated three factors that must be established for a petitioner to prevail on a Section 1983 claim: (1) injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.[8] The third factor, dealing with reasonableness, is where the brunt of the circuit split lies.

The Fifth Circuit, just two months ago, determined that only the moments immediately before the threat of force are relevant to the reasonableness inquiry.[9] The Court explicitly disagrees with the Tenth Circuit, which has held that the timeframe should sometimes be extended, including almost the entirety of officer’s actions leading up to the threat of force, causing officers to use force themselves.[10] The Tenth Circuit’s articulation of the timeframe has been coined the “state-created-need theory,” which highlights circumstances in which an officer’s reckless actions brought about the need to use force.[11] The Fifth and Tenth Circuit have come to an explicit disagreement, and other circuits have previously weighed in on the issue.

In 1997, the Tenth Circuit dealt with a Section 1983 claim brought by a woman whose husband, Terry Allen, was shot and killed by police during his attempted arrest.[12] Officers were aware that Mr. Allen was suicidal and armed.[13] The officers allegedly ran screaming up to Mr. Allen’s car, leading to a ninety-second altercation that resulted in Mr. Allen’s death.[14] The Tenth Circuit explained that “the excessive force inquiry includes not only the officers’ actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect’s threat of force.”[15] The court quoted a previous Tenth Circuit case, Sevier, in determining that not only does a court look to the threat of danger at the moment force was used, but also “whether Defendants’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.”[16] The court determined that conflicting testimony about how the officers approached the vehicle was a genuine issue of material fact, denying summary judgment.[17] Importantly, the Tenth Circuit has specified that this slightly broader inquiry into the officers’ actions is only relevant if their actions are “immediately connected” to the seizure and the threat of force.[18]

The Tenth Circuit’s state-created-need theory is supported by the First and Third Circuits.  The First Circuit adopted the broader reasonableness inquiry in rejecting the analysis that “the police officers’ actions need be examined for ‘reasonableness’ under the Fourth Amendment only at the moment of the shooting.”[19] The Third Circuit, in assuming that the reasonableness inquiry applies to all pre-seizure conduct, explained that “there are considerable practical problems with trying to wrest from a complex series of events all and only the evidence that hurts the plaintiff.”[20] Although the Tenth, First and Third Circuits reject such a narrow reasonableness inquiry, these circuits stand alone in their usage of the broader, state-created-need theory.

The Fifth Circuit’s recent decision rejects the state-created-need theory.[21] In Malbrough, officers were conducting a warrant on the SUV of Anthony Campbell, a known drug dealer, while he was inside the car with friends.[22] Mr. Campbell attempted to drive away, knocking an officer into a bush.[23] This led to shots being fired, killing Mr. Campbell.[24] The Fifth Circuit explicitly rejected the state-created-need theory, explaining that the law of the Fifth Circuit applies and past cases have zeroed in on “whether officers or others were ‘in danger at the moment of the threat that resulted in the officer’s use of deadly force.’”[25] The court explained that the moment of the threat, not manner of the officers’ arrival at that threat, is the relevant timeframe in assessing reasonableness of the use of force.[26]

The Fifth Circuit has the support of the Seventh, Eighth and Fourth Circuits. The Seventh Circuit explained that only unreasonable seizures are prohibited by the Fourth Amendment, while unreasonable conduct generally is not prohibited.[27] The Eighth Circuit explained, “it may appear, in the calm aftermath, that an officer could have taken a different course, but we do not hold the police to such a demanding standard . . . . Police officers have tough jobs. . . .”[28] Similarly, the Fourth Circuit determined that events leading up to a shooting were not probative because officers often make “split-second judgments,” again supporting that the reasonableness inquiry should only look at the moment before force is used.[29] The Sixth Circuit has not explicitly chosen a side in this split and has issued separate decisions impliedly supporting both sides of the split.[30]

III. Discussion

When the events and actions of the officers leading up to the officer’s use of force are “immediately connected” to seizure and the threat of force, courts should adopt the stricter, state-created-need theory. In light of public outcry against police brutality, a more “demanding standard” is appropriate. Police indeed have a “tough job,” but in no way should officers not be held accountable for their own reckless actions that brought about the need for force, and sometimes, that end in the death of a civilian. Further, officers have training in how to deal with these tense “split-second judgments” and also have training on how to deal with mentally ill civilians. Thus, this expanded, more demanding standard merely requests that officers use their training and be held accountable when they do not use what they’ve been taught.

With the expanded timeframe, the actions leading up to the initial threat of force may reveal that officers handled the situation poorly, bringing about a violent response from the civilian. Just even one minute before the threat of force may give enough insight into whether the officers’ use of force were truly reasonable. Of course, this standard may not always reveal evidence that helps the defendant; but, this standard is fairer to civilians arrested in situations where the police indeed recklessly escalated the pre-seizure altercation.

  Civilians should not be excepted to remain perfectly calm when a gun is pointed at them; police officers, who have received training and are paid to perform this duty, should be the party to the altercation expected to deescalate tense situations. The state-created-need theory does not expand the timeframe in an irrelevant manner; rather, the theory looks at the related events leading up to the threat of force by the civilian relevant to the reasonableness of officers’ eventual use of force. Defendants have the right to the full breadth of the Fourth Amendment and to be arrested in a reasonable manner, regardless of their alleged wrongdoings.

IV. Conclusion

Evaluating all pre-seizure actions of police when assessing reasonableness of force used enables courts to more accurately determine whether the force used was excessive. In some cases, looking to the recklessness of the officers may allow the aggrieved party to succeed on their excessive force claim. And in a time of combatting police brutality and seeking police accountability, courts should adopt the state-created-need theory.


[1] June 3 coverage of nationwide unrest and ongoing protests, NBC News, (June 3, 2020) https://www.nbcnews.com/news/us-news/blog/2020-06-03-george-floyd-protests-n1223081

[2] Protests across the globe after George Floyd’s death, CNN, (June 13, 2020, 3:22 PM) https://www.cnn.com/2020/06/06/world/gallery/intl-george-floyd-protests/index.html

[3] Ian Millhiser, 3 ways to ensure that rogue cops aren’t above the law, Vox, (June 9, 2020, 8:50 AM) https://www.vox.com/2020/6/9/21284270/qualified-immunity-rogue-cops-justin-amash-8-cant-wait-supreme-court-justice-in-policing. “Qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.” Legal Information Institute, https://www.law.cornell.edu/wex/qualified_immunity

[4] Malbrough v. Stelly, 19-30269, 2020 WL 2507355, at *4 (5th Cir. May 14, 2020).

[5] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 42 U.S.C. § 1983 (2020).

[6] Malbrough, 19-30269, 2020 WL 2507355, at *3 n. 7.

[7] Graham v. Connor, 490 U.S. 386, 396 (1989).

[8] Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (quoting Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)).

[9] Malbrough, 19-30269, 2020 WL 2507355, at *4.

[10] Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir. 1997).

[11] Malbrough, 19-30269, 2020 WL 2507355, at *4; Muskogee, 119 F.3d at 840.

[12] Muskogee, 119 F.3d at 839.

[13] Id.

[14] Id.

[15] Id. at 840, quoting Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995).

[16] Muskogee, 119 F.3d at 840; Sevier, 60 F.3d at 699.

[17] Muskogee, 119 F.3d at 841.

[18] Romero v. Bd. of County Comm’rs, 60 F.3d 702, 705 n. 5 (10th Cir.1995); See also Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001).

[19] St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995); See also Hegarty v. Somerset County, 53 F.3d 1367, 1375 (1st Cir. 1995).

[20] Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999).

[21] Malbrough, 19-30269, 2020 WL 2507355, at *4.

[22] Malbrough, 19-30269, 2020 WL 2507355, at *1-2.

[23] Id.

[24] Id.

[25] Malbrough, 19-30269, 2020 WL 2507355, at *4, quoting Harris v. Serpas, 745 F.3d 767, 773 (5th Cir. 2014) (emphasis in original).

[26] Malbrough, 19-30269, 2020 WL 2507355, at *4,

[27] Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir. 1992)

[28] Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996).

[29] Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991).

[30] See Claybrook v. Birchwell, 274 F.3d 1098, 1104–1105 (6th Cir.2001); But see Dickerson v. McClellan, 101 F.3d 1151, 1160–62 (6th Cir.1996).