Customers Allege Phone Case Manufacturer Failed to Protect Personal Data

Data Security” by Blogtreprenuer is licensed under CC BY 2.0.

Blythe McGregor, Associate Member, University of Cincinnati Law Review

Consumers purchase and use phone cases to protect their devices from wear, tear, and damage. When purchasing cases online, customers often provide personal information such as home addresses, phone numbers, email addresses, and financial information to a seller. Customers may not realize that, along with their cell phones, their personal information may also need protection.

In February 2020, customers of Slickwraps, Inc., a company specializing in skin-tight cases for tech accessories, became especially vulnerable to data theft.[1] When a slickwraps.com hacker emailed around 400,000 consumers “We have your data” from a corporate email address, these consumers were put on notice of a breach.[2] The email made it clear that the hacker did not intend to use the information for harm, but wanted to inform recipients that anyone could access the information and use it for any purpose.[3] Although consumers were notified in a unique way, corporate data breaches are not at all uncommon. As of January 2020, an estimated 7.9 billion records were exposed since the beginning of 2019.[4] In a complaint filed on March 12, 2020, a handful of slickwraps.com users affected by the hack initiated a class action lawsuit against Slickwraps alleging that this breach, unlike many other corporate breaches, was wholly avoidable.[5]

Almedia et al v. Slickwraps, Inc.

Three named plaintiffs filed a class action complaint in the Eastern District of California alleging a data breach case that was beyond the typical.[6] The data breach affected about 858,000 customers: more than double the amount notified via email of the breach by the aforementioned hacker. The information breached included the customers “names, physical addresses, phone numbers, purchase histories, and unique email addresses.”[7] The complaint also alleged that photos customers had uploaded to make a personalized phone case were  released.[8] Slickwraps, the defendant, claimed that no passwords or payment information was compromised.[9] Plaintiffs allege that Slickwraps’ security policy was “woefully lax” and that the company was well aware of its insufficiency.[10] Not long before the breach, a cybersecurity analyst publicly announced that the analyst had been able to access the customers’ personal information from the Slickwraps website.[11] The analyst described how, through the site’s phone case customization page, anyone was able to access the company’s entire network and access all its information.[12] The analyst also tried to alert Slickwraps directly by sending the company a direct message on Twitter and emailing the CEO, but the company allegedly ignored the warnings and took no action.[13]

Class members were Slickwraps customers whose data was exposed as a result of the breach.[14] The complaint proposed certification of either a class of all persons whose data was compromised, or a class of all people residing in California whose data was compromised.[15] The class action lawsuit seeks to hold Slickwraps liable for “inadequate safeguarding” of information and failing to provide notice to customers that their information had been made vulnerable.[16] Specifically, plaintiffs assert claims of negligence, intrusion into private affairs, negligence per se, breach of express contract, breach of implied contract, and deprivation of rights under the California Unfair Competition Law and California Consumer Privacy Act.[17] The complaint alleges that Slickwraps knew or should have known of the importance of the personal data stored, and in storing this information the company assumed a legal duty to keep information secure.[18] Plaintiffs assert that even though Slickwraps knew of the breach for several days, they only decided to inform the public when they became afraid of liability for inaction.[19] Also, although the CEO eventually emailed a notification about the breach and an apology, there is no information on the website or elsewhere about the breach, thus leaving many affected customers unaware of the situation.[20] As to the negligence claim, plaintiffs claim that a duty to protect against a security breach was imposed by Federal Trade Commission cyber-security guidelines, e-commerce industry standards, and California law.[21] This duty was allegedly breached by Slickwraps’ failure to implement reasonable measures.[22]

Plaintiffs seek compensatory damages, reimbursement of out of pocket mitigation measures, such as credit monitoring fees, and injunctive relief in the form of Slickwraps’ implementation of security monitoring systems.[23] The complaint expresses that, in addition to the immediate loss of privacy suffered by plaintiffs, class members will suffer a heightened risk of fraud and identity theft for years to come.[24]

Recent Related Caselaw

Recent data breach cases raise issues related to standing and the ability to state a claim for data privacy cases like Almeida. Specifically, data breach case defendants often assert that plaintiffs have not suffered an injury in fact, as required to establish standing, and that defendants do not have a duty of care, as required to successfully assert a claim for negligence. These recent cases may be instructive regarding the potential for the Almeida plaintiffs’ success in winning their claim. For example, the Ninth Circuit considered a similar case in 2018: In Re Zappos.com, Inc.[25] Much like the Almeida plaintiffs, customers’ personal account data was compromised when a hacker infiltrated an online retailer’s website.[26] The district court dismissed certain plaintiffs’ claims for lack of standing, holding that plaintiffs whose information had yet to be used fraudulently had not suffered an injury in fact, as required for Article III standing.[27] Those plaintiffs appealed.[28] The Ninth Circuit concluded that the district court erred because a plaintiff has standing to sue if “there is a substantial risk that the harm will occur.”[29] Zappos was factually distinct from Almeida because the Zappos plaintiffs’ credit and debit card information was compromised.[30] The Ninth Circuit considered the sensitive nature of customers’ bank account data during its standing analysis.[31]  The Ninth Circuit also expressed that when plaintiffs allege that the full extent of an injury resulting from a data breach may not be experienced until some time after the breach occurs, even if such harm has yet to occur, plaintiffs allege an injury in fact based on substantial risk.[32]

More recently, the Northern District of California in Bass v. Facebook faced a similar set of facts when Facebook users sued the social networking website alleging their personal information was taken by hackers due to the company’s failure to implement adequate security procedures.[33] Specifically,  hackers accessed and stole users’ “access tokens,” the ability to log into the website multiple times without reentering a username and password, giving the hackers access to a multitude of personal information stored within each user’s account.[34] The court concluded that the plaintiffs’ increased risk of identity theft satisfied Article III standing’s injury in fact requirement.[35] One roadblock to establishing standing in this case was one plaintiff’s failure to show that his injury in fact was fairly traceable to the data breach.[36] Facebook had not notified the plaintiff that he had been a victim of the breach, although the company had notified other victims, and the plaintiff was unable to show any plausible link to the breach.[37] The court made it clear that notification by the company, even if the company did notify other victims, is not essential to a plausible allegation.[38]

Importantly, the Bass court discussed the factors that must be present for California courts to find a duty of care exists to support a negligence action.[39] These factors include:

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.[40]

Analysis

It is likely that the Almeida complaint successfully states a claim and establishes standing. No clear injury has yet occurred, especially since the hacker made clear in his or her email he or she would not use the information obtained for harm. However, the Bass court required only an increased risk of identity theft to establish injury in fact, whereas, the Zappos court required a substantial risk that the injury will occur. Almeida plaintiffs likely established that there is an increased risk of substantial harm. The hacker had access to personal information such as name, address, and phone number, thus increasing the likelihood that an identity theft crime will injure all members of the proposed class. Thus, under the Bass standard, plaintiffs likely established an injury in fact. However, if the higher Zappos standard is applied, it may be more difficult to prove injury in fact, although the standard likely would still be met. The Slickwraps hacker accessed a large amount of personal information, even if this personal information was not financially sensitive. Although some of this information may be publicly available, there is likely not evidence that all of this information was publicly available for the hundreds of thousands of customers affected. Also, personal photographs that customers had uploaded to the customization tool were compromised, many of which likely were not otherwise available to the public. Because of the sheer mass of customer information compromised, and the private nature of the information viewed as a whole, plaintiffs likely successfully established that a substantial harm will result from the breach.

It is also likely that plaintiffs will establish that Slickwraps had a duty to protect customers’ secure information. This is a unique case: a seemingly friendly “cybersecurity analyst” hacked the website and warned Slickwraps of vulnerabilities. This situation provides a very strong basis for finding that the data breach was wholly foreseeable to Slickwraps. Even if the analyst had not warned Slickwraps, any time that a company is storing personal information, a duty to protect sensitive information exists. This is evident in the Bass case, where Facebook’s use and storage of private information was evidence that plaintiff placed trust in the social network, thus giving rise to a duty to protect that information.[41] The complaint also alleges that a duty is established under the Federal Trade Commission Act, California Civil Code, and industry standards.[42]

Additionally, because of the clear notice given by the cybersecurity analyst and Slickwraps’ choice to continue business as usual, courts should impose additional liability and punitive damages. Data breaches are common, and hackers are becoming more advanced, making security procedures tougher to successfully implement.[43] When alerted to a weakness in security, ecommerce vendors should have an additional duty to make efforts to strengthen the current cybersecurity system immediately, and to notify consumers of the threat of breach so all involved can take protective action.

Conclusion

The Almeida facts provide a twist on a classic corporate data breach case by alleging strong evidence that Slickwraps knew or should have known about the vulnerability on its website. Situations like this may become more common as hacking ability and knowledge is used to detect cybercrime rather than commit it.[44] When the private, personal information of hundreds of thousands of consumers is compromised, each consumer is at higher risk of identity theft and an injury in fact is established. Additionally, when outside analysts or hackers identify vulnerabilities and bring them to a company’s attention, victims of a data breach can provide very convincing evidence of a neglected duty of care should the company fail to act. This should expose a company to increased liability for resulting harm.


[1] Ben Kochman, Phone Case Co. Sued After Hackers Say ‘We Have Your Data’, Law 360 (March 13, 2020), https://www.law360.com/classaction/articles/1253070/phone-case-co-sued-after-hackers-say-we-have-your-data-.

[2] Id.

[3] Complaint, Almeida v. Slickwraps Inc., 2:20-at-00256, (E.D. Cal. March 12, 2020).

[4] All Data Breaches in 2019 & 2020 – An Alarming Timeline, Selfkey (March 5, 2020), https://selfkey.org/data-breaches-in-2019/.

[5] Complaint, supra note 3, at 1.

[6] Id. at 2.  

[7] Id. at 3.

[8] Id. at 4.

[9] Igor Bonifacic, Vinyl Cover Maker Slickwraps Coughs Up Customer Info in Data Breach, Engadget (Feb. 21, 2020), https://www.engadget.com/2020/02/21/slickwraps-data-breach/.

[10] Complaint, supra note 3, at 3.

[11] Id.

[12] Id. at 4.

[13] Id.

[14] Id. at 35.

[15] Id.

[16] Id. at 8.

[17] Id.

[18] Id. at 21.

[19] Id. at 17.

[20] Id. at 18.

[21] Id. at 40.

[22] Id.

[23] Id. at 8.

[24] Id. at 9.

[25] In re Zappos.com, Inc., 888 F.3d 1020 (9th Cir. 2018).

[26] Id. at 1023.

[27] Id. at 1024.

[28] Id.

[29] Id. at 1029.

[30] Id. at 1023.

[31] Id. at 1027.

[32] Id. at 1028-29.

[33] Bass v. Facebook, Inc., 394 F. Supp. 3d 1024 (N.D. Cal. 2019); see also Adkins v. Facebook, Inc., No. C 18-05982-WHA, 2019 WL 7212315 (N.D. Cal. Nov. 26, 2019).

[34] Bass, 394 F. Supp. 3d at 1029-30.

[35] Id. at 1035.

[36] Id.

[37] Id. at 1035-36.

[38] Id. at 1036.

[39] Id. at 1039.

[40] Id.

[41] Id.

[42] Complaint, supra note 3, at 40.

[43] Paul Rubens, Cybersecurity: Defending ‘Unpreventable’ Cyber Attacks, BBC (Feb. 3, 2015), https://www.bbc.com/news/business-31048811.

[44] Taylor Armerding, Hackers Needed to Defeat Hackers, Forbes (Sept. 5, 2019), https://www.forbes.com/sites/taylorarmerding/2019/09/05/hackers-needed-to-defeat-hackers/#7811b5177823.

Can Federally Funded Educational Institutions Get in Trouble for Helping Public Health Authorities Battle Coronavirus?

Photo by moren hsu on Unsplash

Alisher Kassym, Associate Member, University of Cincinnati Law Review

According to the National Center for Education Statistics, there are 98,277 public schools and almost 50.8 million students in the United States.[1] Amidst the coronavirus outbreak, 37 states have decided to close public schools, which amounts to 72,000 schools being closed, affecting at least 37 million students.[2] However, closing schools is not the only way to mitigate the spread of the virus. Some educational institutions may disclose students’ personal information to public health authorities to facilitate the ongoing fight against the coronavirus. These disclosures may be problematic, as the federal law dictates that the educational institutions and agencies—barring few exceptions—cannot disclose and release students’ personal information.[3] Will educational institutions be punished for sharing students’ data, even if the purpose of the disclosure is to prevent the effects of coronavirus?

Family Educational Rights and Privacy Act

20 U.S.C.S. § 1232g, also known as the Family Educational Rights and Privacy Act (“FERPA”), is a federal law that applies to all educational institutions and agencies that receive federal funding under programs administered by the Department of Education.[4] Per FERPA, the educational institutions and agencies generally cannot disclose personally identifiable information from students’ educational records.[5] Noncompliance with FERPA’s rules may result in funding cuts for the violating parties.[6]

There are notable exceptions to the non-disclosure provision of FERPA. First, an eligible student can submit written consent to disclose personally identifiable information.[7] Multiple exceptions allow—but do not require—the release of information without consent from the students.[8] Out of the available non-consensual exceptions, perhaps the most applicable exception for the current coronavirus outbreak is health or safety emergency.[9] The exception permits disclosure of students’ educational records “in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other person.”[10] The language of the statute does not clarify what constitutes a health or safety emergency.[11]

It is safe to presume that, due to absence of federal guidelines, the educational institutions have discretion over qualifying events as an emergency. Before 1988, the Code of Federal Regulations (“CFR”) listed four non-statutory criteria for determining the application of the emergency exception under FERPA.[12] The CFR listed the following considerations: (1) seriousness of the threat to the health or safety of the student population; (2) the necessity of the information at issue to meet the emergency; (3) whether the parties receiving the information are in a position to address the emergency; and (4) time considerations.[13] In 1988, the Secretary of Education deleted those criteria, reasoning that educational institutions and agencies were capable of making the necessary determinations without the Federal regulation.[14] The discussion also hinted that the removed criteria would remain relevant.[15] Still, it became clear that institutions covered by FERPA were free to determine whether the emergency exception applied.

Discussion

The educational institutions and agencies will likely face no issues with invoking the FERPA’s emergency exception to share students’ personal information with public health authorities. Institutions have the discretion to protect students’ health by any measures deemed necessary because the institutions have no required criteria governing the application of the emergency exception. Moreover, information disclosures in connection with a global pandemic[16] are likely to be viewed as reasonable due to the nature of the situation and health risks imposed on individuals. The COVID-19 outbreak also satisfies the pre-1988 CFR emergency exception standards—the threat from the virus is serious, time is of the essence, and the release of students’ personal information (such as health conditions) can ease the pandemic’s effect. Lastly, because the virus is a recognized threat to public welfare, the measures taken against it will inevitably be connected to health and safety of the population. Thus, the schools and other entities governed by FERPA will be able to use the FERPA’s emergency exception to disclose information from students’ educational records.

This prediction is further fortified by the Department of Education’s recent report. The report stated that an educational institution or agency may release personally identifiable information if it considers the “totality of circumstances” surrounding the spread of COVID-19.[17] The report also noted that public health officials and medical personnel are typically “appropriate parties” to whom students’ information is disclosed under the emergency exception.[18] Taken together, the report’s wording implies that the educational institutions would be under minimal risk of violating FERPA for disclosing students’ personal information in connection with the pandemic emergency. Nevertheless, the report cautioned that educational institutions’ judgment must be based on a specific emergency, not a general and distant threat.[19] On top of that, the disclosures are limited in time to the period of emergency, meaning that blanket releases of information should not be practiced.[20] Since a violation of FERPA can result in loss of federal funding, the educational institutions can still choose to obtain students’ consent to minimize the risks of potential litigation.

Conclusion

Educational institutions will likely be able to disclose students’ personally identifiable information to public health authorities to mitigate the effects of coronavirus. The spread of coronavirus can be classified as a public health and safety emergency under the FERPA exception due to the threat posed by the virus. Thus, the institutions can invoke the emergency exception to share information from students’ educational records.


[1] Map: Coronavirus and School Closures, Education Week (March 6 2020), https://www.edweek.org/ew/section/multimedia/map-coronavirus-and-school-closures.html (last visited March 16, 2020).

[2] Information as of March 16, 2020. Id.

[3] See 20 U.S.C.S. § 1232g(b) (LexisNexis, Lexis Advance through Public Law 116-108).

[4] U.S. Department of Education, FERPA General Guidance for Students, https://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html.

[5] See 20 U.S.C.S. § 1232g(b) (LexisNexis, Lexis Advance through Public Law 116-108).

[6] Id. at § 1232g(b)(1).

[7] Id.

[8] U.S. Department of Education, supra note 4.

[9] 20 U.S.C.S. § 1232g(b)(1)(I).

[10] Id.

[11] Id. at § 1232g.

[12] Brown v. City of Oneonta, 106 F.3d 1125, 1132 (2d Cir. 1997)

[13] Id.

[14] Final Regulations, Family Educational Rights and Privacy, 53 F.R. 11942 (1988).

[15] Id. “Nothing in the statute or legislative history prohibits an agency or institution from considering the four specific criteria that have been removed.”

[16] “We have therefore made the assessment that COVID-19 can be characterized as a pandemic.” World Health Organization, WHO Director-General’s opening remarks at the media briefing on COVID-19 (11 March 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020.

[17] FERPA & Coronavirus Disease 2019 (COVID-19), U.S. Department of Education, 3 (March 2020), https://studentprivacy.ed.gov/resources/ferpa-and-coronavirus-disease-2019-covid-19.

[18] Id. at 4.

[19] Id. at 3.

[20] Id. at 4.

International battle for baby: when one parent abducts the couples’ child

“World mapping”by sufianalatrash is licensed under CC BY-NC-SA 2.0

Chloe Knue, Associate Member, University of Cincinnati Law Review

I.            Introduction

A man and a woman make a baby. This natural occurrence can trigger a range of circumstances, including a family, co-parenting, or even—abduction. Abduction is the major concern of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “the Convention”).[1] The Convention is an international treaty, signed by 99 countries that facilitates the “return [of] children ‘to the State of their habitual residence,’. . .”[2] A dispute over habitual residence often occurs when one “parent[ ] tak[es] matters into [his or her] own hands[,]” and removes the child to another country.[3] The question becomes whether the child was a habitual resident of the country from which they were taken.[4] If the answer is no, the removal is not wrongful and the child will not be returned by a signatory nation to which the child was removed.[5] Under the Convention, the courts of the country to which the parent has taken the child decide whether the child must be returned to the parent petitioner.[6] If the child is to be returned, the underlying custody dispute is resolved in the original country.[7]

The following hypothetical is instructive: Mom and Dad have Baby. The relationship between Mom and Dad deteriorates. Mom leaves Original Country, taking Baby to New Country. The question is: where is Baby’s habitual residence? It is only when the answer to this question is Original Country that: (1) Baby is returned to Original Country and (2) Original Country may adjudicate the underlying custody dispute.

Section II will summarize Sixth Circuit case law leading up to the court’s seminal decision in Ahmed v. Ahmed.[8] Section III will discuss Taglieri v. Monasky.[9] Section IV will argue that Taglieri should have been remanded to the district court to determine whether there was, in fact, a meeting of the minds between the parties.

II.         Background

In Friedrich v. Friedrich, the Sixth Circuit resolved a dispute over habitual residence where the child had lived in only one country.[10] Mrs. Friedrich was an American citizen serving in the military, and Mr. Friedrich was a German citizen.[11] The couple married and had a child in Germany. When the child was almost two years old, Mrs. Friedrich removed the child to Ohio.[12] Mrs. Friedrich argued that the child was a habitual resident of the United States based on her intention to return to the states after serving in the military.[13] The court disagreed. It explained, “[t]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”[14] Based on the child’s past experience in Germany, the court determined that Germany was, in fact, the child’s habitual residence.[15] But things got a little more complicated in Robert v. Tesson.[16]

Unlike Friedrich, Robert was a two-country case.[17] In Robert, the couples’ twin boys spent time in both the United States and France.[18] Not only had they attended school in countries places, but they also were bilingual.[19] Noting that Friedrich was the Sixth Circuits’ “sole precedent on this issue[,],” the court started there.[20] It distinguished Friedrich because the facts “did not provide this Court with an opportunity to determine what standard should apply when a child has alternated residences between two or more countries.”[21] For that reason, the court adopted a new acclimatization standard.[22] The acclimatization inquiry asks: how well does the child know the place the parent contends is the child’s habitual residence? A court will weigh a variety of factors to determine acclimatization, including, “‘academic activities’. . . ‘social engagements,’ ‘participation in sports programs’. . . and ‘meaningful connections with the people and places’. . .”[23] Because the twins’ time spent in the United States, when viewed in light of these factors, suggested they had acclimated to the United States rather than France, the court found the United States to be their habitual residence.[24]

The Ahmed court adopted Robert’s acclimatization test but added a second prong.[25]In Ahmed, Mrs. Ahmed gave birth to twins in the United States.[26] Shortly after, Mrs. Ahmed and her two children traveled to the United Kingdom to visit Mr. Ahmed.[27] “The couple dispute[d] whether Mrs. Ahmed considered the relocation to the United Kingdom permanent.”[28] As in Robert, the children in Ahmed had spent time in two countries but the children were so young that the court struggled to evaluate acclimatization.[29] The court stated, “[a]s infants, they were unable to [acclimate] . . . anywhere when Mrs. Ahmed traveled with them . . .”[30]As a result, Ahmed adopted a shared parental intent prong.[31] It described this inquiry as “the parents’ last ‘settled mutual intent’ for where their children would live.”[32] Because the court could not identify a mutual intent between the parents, the children were permitted to stay in the United States with their mother.[33]

When Taglieri v. Monasky was decided, pre-Ahmed, in the Northern District of Ohio, the proper analytical framework was still unclear.[34] Unfortunately, the Taglieri court provided little clarity when it issued a majority opinion, a concurring opinion, and three dissenting opinions. The judges disputed three main questions of law: (1) whether the Friedrich test still applied; (2) whether a remand was necessary in light of Ahmed; and (3) whether there had to be a meeting of the minds under the second Ahmed prong. The Supreme Court has since granted certiorari and will hear the case when it reconvenes this October. 

III.        Monasky v. Taglieri

Monasky (the mother) was an American citizen and Taglieri (the father) was an Italian citizen. They met in graduate school in Illinois.[35] Shortly after, the couple moved to Italy. At trial, Monasky accused Taglieri of physical abuse and even alleged that Baby A.M.T. had been conceived when Taglieri raped Monasky. The couple also lived apart for almost the entire pregnancy after Taglieri began a new job three hours away.[36] All of Baby A.M.T.’s experiences had been in Italy before Monasky removed the child to the United States.[37] At eight weeks old, it was clear to the court that Baby A.M.T. was too young to acclimate.[38] The court then focused entirely on the shared parental intent prong.[39]

Monasky argued that Baby A.M.T. had no habitual residence at the time of his or her removal because: (1) “Monasky . . . investigat[ed] health care and child care options in the United States[;]” (2) “[Monasky] look[ed] for American divorce lawyers[;]” (3) “[Monasky and Taglieri] jointly initiated applications for Italian and American passports for [Baby] A.M.T.[;]” and (4) “[s]he contacted . . . international moving companies.”[40] Whereas, Taglieri argued the child was a habitual resident of Italy because: 

[1] Monasky pursued recognition of her academic credentials by Italian officials. [2] Together, Monasky and Taglieri purchased several items necessary for raising A.M.T. in Italy, including a rocking chair, stroller, car seat, and bassinet. [3] Monasky applied for an Italian driver’s license. And [4] Monasky set up routine checkups for A.M.T. in Italy, registered their family to host an au pair there, and invited an American family member to visit them there in six months.[41]

On appeal, Monasky argued that the evidence did not support a meeting of the minds and Baby A.M.T. did not have a habitual residence.[42] The Sixth Circuit said that a meeting of the minds was “a sufficient, [but] not a necessary, basis for locating an infant’s habitual residence.”[43] As a result, it affirmed the decision of the district court and found Taglieri met his burden, by a preponderance of the evidence, of showing that Italy was Baby A.M.T.’s habitual residence.[44] Baby A.M.T. has since been returned to Italy.[45]

IV.       Discussion

The proper analytical framework under the Convention merges all three tests—Friedrich, Robert, and Ahmed. The three-prong test would first ask whether the facts present a one-country case. If so, the Friedrich test should be applied. If the answer is no, the court should apply Robert’s acclimatization standard which is also the first prong in Ahmed. Only when the child is too young to acclimate should the court look to the second Ahmed prong—shared parental intent. The shared parental intent prong should be insulated by other tests as much as possible because it is properly interpreted as a high standard. 

Friedrich was improperly ignored by the court in Taglieri. In his concurrence, Judge Boggs argued that, like FriedrichTaglieri is a “‘simple case.’”[46] Under Friedrich, if the child has lived in only one country for a reasonable period of time, the strong presumption should be that the original country is the child’s habitual residence.[47] In Friedrich, a reasonable time was a year and seven months.[48]Judge Boggs feared that if the Ahmed test would have been applied in Friedrich, the child would not have been returned to Germany.[49] He reasoned, “[t]he nineteen-month-old child . . . may have been too young to acclimate to Germany, and there was considerable evidence of marital discord and a lack of shared parental intent, . . .”[50] For that reason, Friedrich should serve as the critical first step in the framework. 

Although Friedrich should have been discussed in Taglieri to preserve its application in other cases, the Friedrich test would not have resolved the dispute between Monasky and Taglieri. In Friedrich, the child had almost two years of past experience in Germany. Additionally, the parents had lived together at some point as a family unit.[51] It was pretty clear that Germany was “home.”[52] In contrast, the relationship between Monasky and Taglieri, during the pregnancy and immediately after Baby A.M.T.’s birth, was contentious and Monasky left with the child when he or she was only eight weeks old. Because Baby A.M.T. spent significantly less time in Italy and the relationship between Taglieri and Monasky was much less stable than the couples’relationship in FriedrichFriedrich cannot apply, and Ahmed is triggered.

The shared parental intent prong should be the test of last resort for three reasons. First, the focus shifts from the child to the parents.[53] Second, it is difficult to find a meeting of the minds, as the Ahmed court required, when a relationship has deteriorated to the point that one parent leaves.[54] Third, “[t]he strict two-part ‘Ahmed test’ all too often will compel the conclusion that a very young child is without a habitual residence. It therefore conflicts with the very purposes of the Hague Convention by leaving many young children unprotected.”[55] Nonetheless, this consideration cannot be removed from the analysis entirely. When a child has spent time in two countries or little time in any one country and is too young to acclimate, courts have no choice but to look to the parents. 

The Sixth Circuit correctly determined that Baby A.M.T. was too young to acclimate. The court then relied on the parents for clarity and misapplied the second Ahmed prong when it failed to require a meeting of the minds. In the interest of efficiency and fairness, a meeting of the minds should be required. Otherwise, any Google search for a moving company or an off-handed comment to a friend about wanting a divorce becomes highly relevant. Judge Moore said it best: “[s]elf-serving testimony by either party about their internal thought process is insufficient on its own to establish either a shared parental intent or lack thereof.”[56] Internal evidence is like the court traveling through a turbulent, one-sided time machine and it does not do what the “settled”or “mutual” intent language requires.[57] Because the Sixth Circuit looked to whomever had the most “[s]elf-serving testimony” rather than whether there was a meeting of the minds, the dissenting opinions were correct in stating that a remand is necessary. 

In light of Ahmed, the Sixth Circuit should have remanded the case to the district court to determine whether there was a meeting of the minds. On remand, the lower court should have been instructed to consider any mutual decisions made by Monasky and Taglieri after Baby A.M.T.’s birth. Some relevant factors are whether the pair: (1) bought items for the child together; (2) lived together after the child’s birth; or (3) made future plans for the child, such as, appointments and visits with other family members.[58] The facts of this case make the outcome a close call. Ultimately, there is enough evidence to show a meeting of the minds. Even though the Sixth Circuit reached the correct result, it should have required the district court to apply Ahmed. Not only did the couple buy items necessary for raising a child together, like a car seat and a stroller, but Monasky also scheduled a family member and an au pair to stay with them in the future. Therefore, Baby A.M.T. was properly returned to Italy. 

V.          Conclusion

 As the majority emphasized, all international abduction disputes are difficult.[59] There are no winners when one parent leaves the country with a child, and a family is broken apart. Unfortunately, for Taglieri and Monasky, the facts of their case present an even greater degree of difficulty than most. Not only had Baby A.M.T. spent a short time in Italy, but he or she was incredibly young. Therefore, the dispute could not be resolved under Friedrich or the first Ahmed/Robert prong. Although courts “should [be careful] not to invent a habitual residence[,]” there are enough facts here to show a meeting of the minds.[60]It is also important to restate the implications of this inquiry. Monasky should take some comfort in the fact that this framework only determines whether Baby A.M.T. should be returned to Italy. She may still petition an Italian court for an order requiring Baby A.M.T. to spend time in both the United States and Italy as part of a custody agreement.[61] In the meantime, we must wait for guidance from the Supreme Court. 


[1]Taglieri v. Monasky, 907 F.3d 404, 405 (6th Cir. 2018). 

[2]Id. at 407 (quoting the Hague Convention on the Civil Aspects of International Child Abduction, pmbl,, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89.). 

[3]Id

[4]Id

[5]Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017) (citing March v. Levine, 249 F.3d 462, 465-66 (6th Cir. 2011)).  

[6]Id. (citing Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996) (citing 22 U.S.C. §9003(b)(4)). 

[7]Id. (citing Friedrich, 983 F.2d at 1067). 

[8]Ahmed, 867 F.3d at 682. 

[9]Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018). 

[10]Friedrich, 983 F.2d at 1401. 

[11]Id. at 1398. 

[12]Id. at 1399. 

[13]Id. at 1401. 

[14]Id

[15]Id. at 1402. 

[16]Robert v. Tesson, 507 F.3d 981, 982 (6th Cir. 2007). 

[17]Taglieri v. Monasky, 907 F.3d 404, 413 (6th Cir. 2018) (Boggs, J., concurring) (“Robert adopted the acclimatization test to use when, and only when, the child has lived in multiple countries, leaving Friedrich Iintact as our precedent for one-country cases.”). 

[18]Robert, 507 F.3d at 984-87. 

[19]Id. at 985-87. 

[20]Id. at 988. 

[21]Id. at 992. 

[22]Id. (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995)). 

[23]Id. at 996 (quoting Karkkainen v. Kovalchuk, 445 F.3d 280, 293-94 (3rd Cir. 2006) (quoting Feder at 224). 

[24]Id. at 997-98. 

[25]Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (quoting Ahmed, 867 F.3d at 687, 689) (citing Robert, 507 F.3d at 992). 

[26]Ahmed v. Ahmed, 867 F.3d 682, 685 (6th Cir. 2017). 

[27]Id

[28]Id

[29]Id. at 690 (quoting Simcox v. Simcox, 511 F.3d 594, 602 (6th Cir. 2007)). 

[30]Id

[31]Id

[32]Id. at (quoting Gitter v. Gitter, 396 F.3d 124, 133, 135 (2nd Cir. 2005)). 

[33]Id. at 690-91. 

[34]Taglieri v. Monasky, 907 F.3d 404, 416 (6th Cir. 2018) (Moore, J., dissenting).

[35]Id. at 406. 

[36]Id

[37]Id. at 407. 

[38]Id. at 407-8. 

[39]Id. at 408. 

[40]Id. at 406, 409 (citing Taglieri v. Monasky, No. 1:15 CV 947, 2016 WL 10951269 at *2-3, *8-9 (N.D. Ohio Sept. 14, 2016). 

[41]Id. at 409 (citing Taglieri, No. 1:15 CV 947, 2016 WL 10951269 at *7-8). 

[42]Id. at 410. 

[43]Id.

[44]Id. at 411. 

[45]Id. at 407. 

[46]Id. at 413 (Boggs, J.,concurring) (quoting Friedrich, 983 F.2d at 1402). 

[47]Id. at 411. 

[48]Friedrich, 983 F.2d at 1398-99. 

[49]Taglieri, 907 F.3d at 413 (Boggs, J., concurring). 

[50]Id.

[51]Id. at 411. 

[52]Robert v. Tesson, 507 F.3d 981, 991 (6th Cir. 2007); cf. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); see also Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004). 

[53]Ahmed v. Ahmed, 867 F.3d 682, 688 (6th Cir. 2017) (quoting Holder v. Holder, 392 F.3d 1009, 1016-17 (9th Cir. 2004) (“recognizing “‘parental intent acts as a surrogate’ in cases involving very young children for whom the concept of acclimatization has little meaning””). 

[54]Taglieri, 907 F.3d at 412 (Boggs, J., concurring) (“After all, in most circumstances where the inter-family tension is so great that one parent has abducted a young child, it is very likely that the parents will have quarreled about many things, most especially about their hopes and plans for where the child will be raised.”)

[55]Id. at 415. (Boggs, J., concurring). 

[56]Taglieri, 907 F.3d at 417 (Moore, J., dissenting). 

[57]Ahmed, 867 F.3d at 687-88 (quoting Gitter, 396 F.3d 124, 133, 135 (2nd Cir. 2005)).

[58]Taglieri, 907 F.3d at 418 (Moore, J., dissenting) (citing Mauvais v. Herisse, 772 F.3d 6, 13 (1st Cir. 2014)) (citing Maxwell v. Maxwell, 588 F.3d 245, 252 (4th Cir. 2009)). 

[59]Id. at 411. 

[60]Id. at 418 (Moore, J., dissenting). 

[61]Id. at 407 (“Taglieri filed an action in Italian court to terminate Monasky’s parental rights. The court ruled in Taglieri’s favor ex parte.”). 

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

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

Corey Bushle, Associate Member, University of Cincinnati Law Review

I. Introduction

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

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

II. Background

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

A. The President’s Arguments

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

B. The Court’s Decision

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

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

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

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

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

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

III. Analysis

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

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

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

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

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

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

IV. Conclusion

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


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

[2]Id.at 82.

[3]Id. at 99.

[4]Id. at 84-85.

[5]Id. at 86.

[6]Id. at 96-97.

[7]See id. at 105.

[8]Id. at 97.

[9]Id.

[10]Id. at 98.

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

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

[13]Id. at 100.

[14]Id.

[15]Id. at 101.

[16]Id. at 96.

[17]Id. at 101. 

[18]Id. at 101-103.

[19]Id. at 101.

[20]Id.

[21]Id. at 103.

[22]Id. at 105.

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

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

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

[26]Id. at 151-52.

[27]Id. at 152.

[28]Id. at 161-62.

[29]Id.

[30]  Id.at 165.

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

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

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

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

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

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

US-China Trade War: The Authority to Levy Tariffs

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

Theron Anderson, Associate Member, University of Cincinnati Law Review

I. Introduction

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

II. Background

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

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

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

III. Separation of Powers 

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

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

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

IV. Presidential Tariff Power 

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

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

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

V. Analysis

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

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

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

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

VI. Conclusion

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


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

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

[3]Wong, supra note 1. 

[4]Id.

[5]Id.

[6]Id.

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

[8]Wong, supra note 1. 

[9]Id.

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

[11]Id.

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

[13]Id.

[14]Id.

[15]Id.

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

[17]Id.

[18]Id.

[19]Id.

[20]Id.

[21]Id

[22]U.S. Const. art. I, §8, cl. 1.

[23]U.S. Const. art. I, §8, cl. 3.

[24]U.S. Const. art. I, §8, cl. 18.

[25]U.S. Const. art. II, §2, cl. 2.

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

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

[28]Lewis, supra note 26.

[29]Golshan, supra note 27.

[30]Id.

[31]Id.

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

[33]Id.

How to Constitutionally Treat Prisoners with Gender Dysphoria

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

Nicolette Crouch, Associate Member, University of Cincinnati Law Review

I. Adree Edmo’s Journey

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

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

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

II. Prisons Must Provide Adequate Medical Care to Inmates

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

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

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

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

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

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

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

IV. The Argument Against Providing GCS: Gibson v Collier

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

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

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

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

V. A Comprehensive Analysis of Medical Care for Inmates

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

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

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

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

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

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

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

VI. Conclusion

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


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

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

[3]Id.

[4]Id.

[5]Id. at *4.

[6]Id. at *7.

[7]Id.

[8]Id.

[9]Id. at *8.

[10]Id. at *10.

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

[12]2019 WL 3978329, at *1.

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

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

[15]429 U.S. at 106.

[16]Id.

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

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

[19]Id. at 97.

[20]Id.

[21]Id. at 105-06.

[22]Id. at 107.

[23]See id. at 102-06.

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

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

[26]Id. at *3.

[27]Id.

[28]Id. at *23-24.

[29]Id. at *24.

[30]Id. at *27-29.

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

[32]Id. at *27.

[33]Id.

[34]Id.

[35]Id. at *1.

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

[37]Id. at *59-60.

[38]Id.

[39]Id. at *61-63.

[40]Id. at *66.

[41]Id. at *27, 64.

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

[43]See id. at *66-74.

[44]Id. at *66.

[45]Id. at *23.

[46]Id. at *69.

[47]Id. at *3.

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

[49]Id. at 216-17.

[50]Id. at 217.

[51]Id.

[52]Id. at 218.

[53]Id. at 220.

[54]Id.

[55]Id.

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

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

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

[59]Id. 221-22.

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

[61]F.3d 212at 221.

[62]Id. at 220-21.

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

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

[65]Id. at 104-05.

[66]Id.

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

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

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

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

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

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

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

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

Anticommandeering Doctrine Protects States’ Right to Gamble

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

Theron Anderson, Associate Member, University of Cincinnati Law Review

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

I. Introduction

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

II. Background

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

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

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

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

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

III. Analysis

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

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

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

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

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

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

IV. Conclusion

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


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

[2]Id. at 1470.

[3]Id. at 1468-69.

[4]Id. at 1470-71.

[5]Id. at 1471.

[6]Id.

[7]Id.

[8]Id.

[9]Id.

[10]Id.

[11]Id.

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

[13]Murphy, 138 S. Ct. at 1473.

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

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

[16]Murphy, 138 S. Ct. at 1475. 

[17]Id.

[18]Id. at 1477. 

[19]Id

[20]Id.

[21]Id.

[22]Id. at 1481.

[23]Id. at 1482.

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

[25]Id.

[26]Id.

[27]Id.

[28]Id.

[29]Id.

[30]Id.

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

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

From $2 Billion to $87 Million: California Judge a saving Grace for Bayer’s Roundup Legal Trouble

“Courtroom Gavel”by bestlawdir is licensed under CC PDM 1.0

Kyle Greene, Blog Editor, University of Cincinnati Law Review

Bayer’s Roundup weed killer product has been facing an onslaught of legal challenges in the last few years.[1] In particular, two separate juries in California federal court ruled against Bayer just in the past month.[2] In one case, a California couple, Alva and Alberta Pilliod, were set to receive about $55 million in compensatory damages and $2 billion in punitive damages due to a chemical in Roundup weed killer that caused people to contract non-lymphatic cancer from prolonged exposure to the product.[3] In Hardeman v. Monsanto, a separate California jury awarded the cancer-stricken plaintiff with $5 million in compensatory damages and over $75 million in punitive damages.[4] The lawsuits appeared to stem from a 2015 World Health Organization study which stated that a chemical in Roundup “probably caused” cancer in certain patients.[5] Apparently, evidence showed a conscious effort on the part of Bayer to downplay or dismiss the WHO’s findings as non-conclusive. Although the study wasn’t conclusive at the time, July California juries were unmoved by Bayer’s apparent lack of concern for the potentially cancerous chemical of their now famous weed killer.[6]

Although juries may not hesitate when laying massive punitive damages on giant corporate-companies like Bayer, giants like Bayer are not without respite. California judges, fortunately for Bayer, are inclined to follow the well-settled law that punitive damages must not be unconstitutionally egregious compared to compensatory damages.[7] In striking down and changing the punitive damages in both cases – from $2 billion to $87 million for the Pilliod couple and from $75 million to $20 million for Hardeman – the California federal court cited State Farm Mut. Ins. Co. v. Campbell, which set a fairly well-defined test for courts to use in assessing whether excessive punitive damages violate due process.[8]

In State Farm, a jury awarded plaintiff-insureds $2.6 million in compensatory damages and an astounding $145 million in punitive damages on their bad faith claim, citing State Farm’s nationwide fraudulent behavior, their massive wealth, and the need to deter State Farm from engaging in bad behavior in the future.[9] The Supreme Court ruled that such a high punitive award violates the Due Process Clause’s rule against the imposition of “grossly excessive or arbitrary punishments on a tortfeasor.”[10]In light of these concerns, the Court established three guideposts for courts to consider when reviewing punitive damages given by juries: (1) the reprehensibility of the defendant’s conduct; (2) the disparity between the plaintiff’s actual or potential harm suffered and the punitive damages; and (3) the difference between the awarded punitive damages and the imposed penalties in similar cases.[11]

The judges presiding over Hardeman’s and the Pilliod’s cases used these guideposts to rationalize lowering the jury’s high punitive damages against Bayer. In regard to the first guidepost, the Hardeman court noted that although Bayer’s conduct was reprehensible, it was not without mitigating factors.[12] For example, when the people bringing these claims used Roundup, the scientific community was quite unsure of the damages of the chemical in Roundup. However, the court also noted that this does not make them totally innocent, as there was evidence presented that Bayer intentionally downplayed negative findings about their chemical and repeatedly stood by the safety of their product despite findings to the contrary.[13] The second guidepost was perhaps the most illuminating for the California Roundup cases. The Supreme Court has routinely held that a jury’s punitive damage award errs on the side of unconstitutional when it nears a ratio of 9:1 to the compensatory damages.[14] Thus, it easy to see that both the Pilliod’s punitive damages and the Hardeman punitive damages far exceed the nearly bright-line rule that the ratio between compensatory and punitive should generally not reach the double-digits. Hardeman mostly ignored the third guidepost, as the amount of civil penalties Bayer could be subjected to remained unclear, and neither party sufficiently explained how these penalties could be calculated.[15] The court noted that the first two guideposts carry more weight than the third.

Bayer’s next challenge will be in Missouri, where juries are notorious (or praised) for their willingness to side against corporate-defendants. Bayer still has a long war ahead of them in defending the effects of their weed-killing product as they plan to appeal both judgements in California.[16] Judges will likely continue to shield them from some liability given the well-settled law in State Farm, but if Bayer’s appeal proves fruitless, they may want to consider a largescale settlement.[17]


[1]Jonathan Stempel, U.S. judge slashes Roundup jury award to $25.3 million; Bayer still plans to appeal, Reuters, (July 15, 2019), https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/us-judge-slashes-roundup-jury-award-to-253-million-bayer-still-plans-to-appeal-idUSKCN1UA2CH;see also Tina Bellon, Judge Reduces $2 Billion Roundup Jury Verdict to $86 Million, Insurance Journal (July 29, 2019), https://www.insurancejournal.com/news/national/2019/07/29/534109.htm

[2]Id.; see also Hardeman v. Monsanto Co. (In re Roundup Prods. Liab. Litig.), 2019 U.S. Dist. LEXIS 117594, *71. (N.D. Cal. July 15, 2019).

[3]Stempel, supra note 1. 

[4]Hardeman at *4.

[5]Tina Bellon, California jury hits Bayer with $2 billion award in Roundup cancer trial, Reuters (May 13, 2019), (https://www.reuters.com/article/us-bayer-glyphosate-lawsuit/california-jury-hits-bayer-with-2-billion-award-in-roundup-cancer-trial-idUSKCN1SJ29F)

[6]Stempel, supra note 1.  

[7]Hardeman at *4; see also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 409-410 (2003).

[8]538 U.S. 408, 409-410 (2003).

[9]Hardeman at *4.

[10] Id. at *415.

[11]Id.; see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).

[12]Hardeman at *4.

[13]Id.

[14]State Farm. See also Pac. Mun. Life Ins. Co. V. Haslep., 499 U.S. 1, 23-24 (1991).

[15]Hardeman at *4.

[16]Bellon, supra note 1. 

[17]Id.

Justice Kennedy: To Swing or Not to Swing

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

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

Presidential Eligibility: The Meaning of ‘Natural Born Citizen’

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

As the 2016 presidential hopefuls are making their way across the campaign trail, accusations about credibility, experience, and beliefs have been thrown at each candidate. One such accusation is that Ted Cruz may not be constitutionally eligible to run for President. Cruz was born in Canada to an American mother and Cuban father.[1] While this makes him a citizen at birth, there are questions about whether this makes him a “natural born citizen”. Continue reading “Presidential Eligibility: The Meaning of ‘Natural Born Citizen’”