Brown Undergraduate Law Review -- Vol. 1, No. 1

2020 || Vol.1 || No.1

b r o w n

u n d e r g r a d u a t e

l a w r e v i e w

The Brown Undergraduate Law Review is Brown University?s

entirely student-written and run journal of legal scholarship.

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BROWN

UNDERGRADUATE

LAW REVIEW

2020 || Volume 1 || Issue 1

Editorial Board and Staff

EDITOR-IN-CHIEF

Joshua Buznitsky ?20

EDITOR-IN-CHIEF

Jordan Kei-Rahn ?21

EXECUTIVE EDITORS

Ilana Duchan ?22

Chaelin Jung ?23

Sophia Matthews ?21

Emma Rook ?21

Ryan Zang ?21

Filippo Zinni ?21

CREATIVE DIRECTOR

Zeynep Aydin ?23

FACULTY ADVISOR

Ari Gabinet

Senior Fellow, Watson Institute

Legal Expert in Residence

SPECIAL THANKS TO BROWN LEGAL HISTORY WORKSHOP

Brown Undergraduate Law Review

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FOREWORD FROM

ARI GABINET

You are holding in your hands the first ever issue of a Brown University law journal. It is a remarkable thing ?

a law journal produced at a University that does not have a law school; featuring papers, short and long,

written by students rather than by professors, judges or practicing lawyers; edited, published and funded

through the efforts of students who have never taken a law school class, much less earned a law school diploma

or passed a bar exam. Not a JD in sight.

Student edited journals are the norm in law. Positions on law review and law journal editorial boards are the

brass ring for law students. It makes perfect sense; law students are immersed in studying law. Their days and

evenings (and nights and mornings) are devoted to understanding the established and foundational principles of

law and to diving into arcane corners and evolving concepts. The scholarship and commentary of legal

scholars, tenured and aspiring, are published in these student-run publications. Their articles expose and tackle

conundrums that appear as legislators and courts attempt to provide continuity, logic and predictability to a

world that is constantly evolving away from the principles that motivated the adoption of laws and the decision

of cases. Editing the work of professors, judges and lawyers hones the skills of law journal staff and exposes

them to scholarship at its highest levels.


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Foreword From Ari Gabinet

That is not THIS journal. There are many journals publishing the scholarship of law professors. In preparing to teach my

classes at Brown ? two of the few hardcore law classes that we have here ? I am overwhelmed by the amount

scholarship that has piled up over the years on every conceivable aspect of the narrowest questions of securities law; and

yet I am sure that the possible ways of looking at the issues in my favorite field are far from exhausted. But I am

convinced that the world can use, and should have, undergraduate law journals. An undergraduate law journal lets

students expose their ideas to a community of cross-disciplinary creative thinkers ? their peers ? and goads them to

hone their thinking and perfect their advocacy. This journal is a medium for Brown students to publish their research and

thinking about the collision of law with the myriad subjects that fire their intellectual curiosity.

Although Brown does not have a law school, it is not surprising that Brown students show an interest in the subject.

Typing ?law? into the search field in the Courses@Brown website produces thirty hits. Of course, in fairness we can?t

include for present purposes courses such as ?The Laws of Thermodynamics.? But there are numerous courses at Brown

that DO focus on legal issues that DID NOT show up in those search results. Law is a deep and broad subject itself, from

the mechanics of civil procedure and the elements of crimes to the theoretical basis of jurisdiction and the natural law

origins of national constitutions. The opportunities for learning and exploration into fields of law, and the field of law, are

truly endless.

But law ? the enforceable expression of societal norms ? touches so many other subjects. Philosophy, politics, history,

medicine, technology, education, natural resources ? even sports ? all implicate law, are affected by law, or, in turn,

affect the law in their own right. If you study biomedical engineering, you are likely to learn bioethics and the law that

goes with it. If you study markets, or virtually any form of public policy, you will come across issues of administrative law

and, without a doubt, tax law. If you study history, you will undoubtedly trip over the evolution of legal institutions. If you

are interested in race, ethnicity, gender or feminist studies, law, for better or worse, will be a part of your curriculum. You

cannot study public policy without understanding lawmaking. And, of course, if you study physics, you will come to grips

with the laws of gravity, thermodynamics, and relativity ? and you SHOULD concern yourself with the law that protects

your intellectual property.

At a university such as Brown, characterized by interdisciplinary study, law features in numerous courses whose main

subject is something other than a particular area of law or jurisprudence. From ?War and Human Rights,? to ?Health

Policy Challenges,? to ?American Constitutional and Legal History,? through ?Law and Transformative Social

Change,? Brown faculty are engaging students in an exploration of how law impacts innumerable aspects of life and

society. And their students, as Brown students are justly known for doing, are taking it in, putting it through their own

intellectual and emotional machinery, and generating their own insights.

This first issue of the Brown Undergraduate Law Journal is the tangible product of that shared intellectual enterprise.

Sincerely,

Ari Gabinet

Senior Fellow, Watson Institute

Legal Expert in Residence


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A LETTER FROM

THE EDITORS

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A Letter from the Editors

When we proposed the Brown Undergraduate Law Review to a few faculty members back in 2018, many of them

told us that this project would prove unfeasible at an institution without an affiliated law school. In truth, most

law reviews feature solely the opinions of seasoned law professionals, academics, and the members of

international bar associations. Our goal was to make conversations about law and its multifaceted connections

to everyday life more accessible to nonprofessionals and those without a law degree. We wanted to create a

space where undergraduate students could begin to engage with and share complex legal issues.

Legal scholars often quote Aristotle, who infamously proclaimed, ?The law is reason free from passion.?

However, we intend for this publication to serve as an outlet for our fellow students?diverse intellectual

passions. By encouraging dialogue on social, political, and economic issues through the framework of deep

legal analysis, we hope to blend passion with logical and civil reasoning. Brown?s students each possess unique

personal experiences, interests, and life goals, as well as an abundance of knowledge. We desire that this

publication reflect this diversity, addressing a wide range of topics, including constitutional interpretation,

social justice reform, environmentalism, corporate law, and numerous other significant issues.

The law is unique in its ability to affect almost any area of life, and thus understanding how the law functions,

or fails to function, remains integral to the modern human experience. We hope that the Brown Undergraduate

Law Review will create an opportunity for fellow students to continue investigating and scrutinizing legal

systems and their multitudinous impacts. As we continue to live through the physical separation imposed by the

Covid-19 pandemic and the international protests against systemic injustices and racist violence affecting

People of Color, these critical moments have highlighted the need and will to advocate for radical legal change.

We sincerely hope this publication will serve as a forum for people to identify and explore injustices, how we

experience them, and how we can go about rectifying those wrongs.

The number of submissions and the amount of emails we received from interested students and faculty

completely astounded our team. In the early stages of this organization, we were hopeful, yet unsure, that we

would receive enough articles to print our inaugural volume. We ended up experiencing a completely different

problem: we were only able to publish a small fraction of the worthy submissions we received this semester. We

remain humbled by the incredible work the members of our Brown University community have shared with us.

As we continue to grow, we hope we can create space for an even greater number of voices, documenting how

students of this generation are approaching legal issues.

It is with deep gratitude that we thank both the hard-working members of our editorial board and our thoughtful

writers, all of whom continued to work on this project during the pandemic, making this edition possible despite

a tumultuous remote semester. We look forward to our continued collaboration on Brown?s very first law review,

further exploring the ever-changing nature of the law. May our words inspire a more just world.

Sincerely,

Joshua Buznitsky ?20 Jordan Kei-Rahn ?21

Editors-in-Chief

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TABLE OF

CONTENTS

Civil Asset Forfeiture: Unconstitutional Yet Legal

Property Seizure by Law Enforcement

Yvonne Audrey Diabene

Merits of the Significant Harm Threshold in

Pediatric Clinical Decision-Making

Ashwin Palaniappan

The Guarantee Claws: How the Constitution Can

Shred State Laws Restricting Voting Rights

Annabelle Hutchinson

Contract Prisons: A Failed Solution

Justin Scheer

Reconsidering Youngstown: When the Supreme

Court's Framework for Evaluating Presidential

Power Isn't Enough

Krista Stapleford

The Court's Expanded Commerce Clause: A

Misguided Mechanism of Change

Jordan A. Kei-Rahn

The Appearance of Impropriety: Dark Money and

the American Judiciary

Olivia Siemens

Child Soldiers and the Legal System

pg 9

pg 19

pg 25

pg 32

pg 39

pg 45

pg 53

pg 60

Alexandra Messersmith Johnson


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CIVIL ASSET FORFEITURE:

UNCONSTITUTIONAL YET LEGAL

PROPERTY SEIZURE BY LAW

ENFORCEMENT

Yvonne Audrey Diabene

Civil asset forfeiture, a process by

which law enforcement authorities

unilaterally seize property suspected

of being related to criminal activity,

has a long history in the justice

system, and has evolved into a tool of

oppression that upends the

protections of criminal procedure in

the United States. Although the

concept of seizing the property of

suspected criminals has some logical

historical antecedents, concerns about

its fundamental unfairness have

existed for almost as long as the

process itself. For a remedy that is

supposed to be a form of retribution

for criminal behavior, most

forfeitures happen without any

prosecution or conviction for an

ABSTRACT

underlying crime and without the

constitutional and procedural

protections afforded to the accused.

Moreover, the procedure for

recovering seized property is

byzantine, expensive, and largely

underutilized. This explains the

socioeconomic impact of forfeiture ?

it disproportionately affects

low-income neighborhoods and racial

minorities. In the latter half of the

20th century, primarily under the

Nixon and Reagan Administrations,

forfeitures were resurrected as a tool

in the ?War on Drugs,? and

predictably, have had the same impact

on poor, Black, and Hispanic

populations as the War on Drugs.

Forfeiture has been reined in

incrementally over the last twenty

years by the courts and some state

reforms, but the constitutional limits

on its use are still unclear, and state

and federal law enforcement agencies

continue to wield forfeitures as a

revenue-generating tool and as an

instrument of intimidation in poor

communities. The time has come to

acknowledge what advocates

recognized at the dawn of American

independence: that the general power

to seize private property without

proof of a crime is "the worst

instrument of arbitrary power.? 1 Civil

asset forfeiture should be abolished to

protect the rights and liberties

afforded by the Constitution to all

Americans.

1. James Otis, ?Against Writs of Assistance,? Constitution Society, February 24, 1761, https://www.constitution.org/bor/otis_against_writs.htm


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Civil Asset Forfeiture: Unconstitutional Yet Legal Property Seizure by Law Enforcement

Introduction

questionable process by which law enforcement agencies

confiscate property that they suspect is connected to

One afternoon in May of 2014, police visited the $350,000

criminal activity. In civil forfeiture, law enforcement bring

home of Christos and Markela Sourovelis in Somerset,

a civil action ? not a criminal proceeding ? against the

Pennsylvania, seeking to evict them and seize the

property. 2 property believed to be implicated in a certain crime: a

About a month prior, police had arrested their

crime that, in many cases, need not be proven prior to asset

22-year old son for selling $40 worth of drugs in front of

seizure. Research shows that 8 out of 10 federal forfeitures

the house, and though their son was charged, none of the

occur without prosecution,

evidence presented implicated his parents in the alleged

5 a fact supported by the nature

drug-dealing. 3 of in rem proceedings, which separate the owner from the

Yet, the Sourovelis were kicked out of their

property under the pretense that the property?s forfeiture is

home and were allowed to return after a week, only on the

distinct from the prosecution of the alleged crime. Civil in

condition that their son could not live there. The

rem forfeiture proceedings allow law enforcement to

Sourovelis would go on to spend considerable amounts of

circumvent the criminal procedure and Due Process

time in Room 478, the City Hall courtroom where

protections that are in place to protect the rights of the

forfeiture cases are heard, trying to get their case before a

accused. Proponents of this program argue that it allows

judge. Three months later, their case still had not been

law enforcement officials to crack down on crime,

heard.

especially drug-related activities, and allows them to

In Rhode Island, local law enforcement accused fisherman

?defund organized crime, take back ill-gotten gains, and

Brian Loftus of violating fishing regulations by using a

prevent new crimes from being committed.? 6 On the

different mesh size for his net, and before any legal

contrary, research by many civil rights groups and

proceedings, seized 300 pounds of catch worth over

non-profit organizations shows that most asset owners are

$1400. His boat was tied up, and he had to hire a personal

not directly implicated in any criminal activity and that the

lawyer at his own expense to argue his case. Though he

program disproportionately targets African-Americans and

was later proven innocent in court and acquitted, he never

people in low-income communities (See ?Socio-Economic

recovered the value of his catch and in the end lost more

Impacts ? The New Drug War?). 7

than $20,000 in legal fees, his seized catch, and valuable

hours of work time. 4

The absence of constitutional safeguards, otherwise

available to defendants in criminal hearings ? such as the

The Sourovelis and Brian Loftus were caught up in the

right to a speedy trial, guilt beyond reasonable doubt, and

nightmare of civil asset forfeiture, a legal but legally

the right to counsel ? makes civil forfeiture prevalent

2. Jeremy Roebuck, ?D.A.'s Office reaches partial settlement in forfeiture suit,? The Philadelphia Inquirer, June 25, 2015,

https://www.philly.com/philly/news/20150625_D_A__s_Office_reaches_partial_settlement _in_forfeiture_suit.html

3. Jeremy Roebuck, ?Homeowners sue Philly D.A. over seizure of property,? The Philadelphia Inquirer, August 12, 2014,

https://www.philly.com/philly/news/20140813_Homeowners_sue_Philly_D_A__over _seizures_of_cash__cars__properties.html

4. RI Center for Freedom and Prosperity, Why Rhode Island Needs Civil Asset Forfeiture Reform, June 6, 2018,

https://rifreedom.org/2018/06/rhode-island-needs-civil-asset-forfeiture-reform/

5. The Leadership Conference on Civil and Human Rights, ?FACT SHEET: Why Civil Asset Forfeiture is Legalized Theft,? July 23, 2015,

http://civilrightsdocs.info/pdf/criminal-justice/Civil-Asset-Forfeiture-Fact-Sheet.pdf

6. U.S. Department of Justice, Office of Public Affairs, ?Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets

Seized by State or Local Law Enforcement,? July 19, 2017,

https://www.justice.gov/opa/pr/attorney-general-sessions-issues-policy-and-guidelines-federal-adoptions-assets-seized-state

7. ?FACT SHEET: Why Civil Asset Forfeiture is Legalized Theft,? 2.


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among the most vulnerable communities. For a myriad of 18 U.S.C. §983, provided additional regulations to the

reasons, many of those who have been engulfed in this process after many citizens and civil rights organizations

ordeal do not reclaim their property, regardless of guilt or complained that the program had numerous loopholes. The

innocence.

Act put in place, inter alia, deadlines that demand that law

enforcement file the appropriate paperwork and give

Background

prompt notice to property owners whose property had been

Civil forfeiture proceedings are in rem ? meaning the

confiscated or were marked for forfeiture. However, the

government brings the suit against the property and not the

process of recovering assets still proves to be a long and

owner. Police officers can confiscate money or property

tedious one in many states. Like the Sourovelis who had to

that they believe is tied to criminal activity.

wait more than three months to get their case before a

Law enforcement need not file charges before seizing judge, many victims have to spend a considerable amount

property and only need to prove ?by a preponderance of of time returning to the courthouse, trying to get a date for

evidence? that they believe the property was implicated in their hearing and some never do. In fact, the Institute for

a crime. This would imply that law enforcement officials Justice reports that 87% of U.S. Department of Justice

would merely need to prove to a judge or jury that the (DOJ) forfeitures are pursued as civil rather than criminal

alleged crime was more likely than not to have occurred ? actions, 10 and within these civil cases, 88% of DOJ civil

arguably a bar low enough to defend almost any allegation. forfeitures are ?processed administratively rather than

In asset forfeiture law proceedings, the owner tied to the judicially, meaning that these cases never see a judge and

accused property is effectively presumed guilty until the property owners never have their day in court.? 11

proven innocent in a court of law and no criminal Administrative proceedings indicate that the property

conviction is required to seize property. Yet, property owner decided not to contest the forfeiture. The economic,

owners whose assets are forfeited are not provided federal procedural, and time requirements necessary to contest a

or state counsel during the trial process. The Southern forfeiture claim means that many people decide not to

Poverty Law Center?s research on asset forfeiture in pursue judicial action.

Alabama revealed that in 2015, the state won 84 percent of

Historical Context

disposed cases against property owners who were not

charged with a crime. 8 The concept of asset forfeiture traces its history to

Additionally, prior to 2016,

medieval England and, prior to then, Biblical times. Asset

defendants in the state of Michigan had to post a bond

forfeiture is historically rooted in the concept of

equal to 10% of the value of the property before the state

would begin trial proceedings. 9 ?deodand,? which is derived from the Latin phrase Deo

Failing to post bond within

Dandum or ?to be given to God.? The Judæo-Christian

20 days of notice meant automatic forfeiture of the

concept of deodand is derived from the Book of Exodus,

property.

which instructs that if an ox ?gore a man and woman that

In 2000, the Civil Asset Forfeiture Reform Act (CAFRA),

8. Southern Poverty Law Center, ?Civil Asset Forfeiture: Forfeiting Your Rights,? January 16, 2018,

https://www.splcenter.org/20180116/civil-asset-forfeiture-forfeiting-your-rights

9. Kahryn Riley, ?Key Part of Civil Asset Forfeiture Law Ruled Unconstitutional,? Mackinac Center for Public Policy, August 22, 2016,

https://www.mackinac.org/22725.

10. ?Federal Equitable Sharing? in ?Policing for Profit: The Abuse of Civil Asset Forfeiture: 2nd Edition,? Institute for Justice, accessed May 19,

2020, https://ij.org/report/policing-for-profit/federal-equitable-sharing/

11. Mark H. Kim, ?Device lets Police Seize Digital Cash, Raises Civil Liberties Concerns,? National Public Radio, July 2, 2016,

https://www.npr.org/sections/alltechconsidered/2016/07/02/483394735/device-lets-police-seize-digital-cash-raises-civil-liberties-concerns


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they die, then the ox shall be surely stoned.? 12 Thus, the

owner of the ox would have to forfeit that property because

it had violated the sacred law.

Thousands of years later, the concept of deodand had

evolved and found expression in the prosecution of treason

under English common law. People convicted of treason

were mandated to give up their property to atone for their

crimes. Under the Treason Act of 1351, anyone convicted

of high treason would be killed and their property would

be forfeited to the Crown. 13

As commerce and travel on the oceans became

increasingly common, forfeiture was used to enforce the

law against those persons who were away at sea for long

periods. Asset forfeiture was expanded to vessels, cargo

ships, and onshore property of sea workers and it began to

take on one of the signal characteristics that persists today

? the ability of the government to seize the property of

accused persons even those who had not been convicted of

a crime and were not present to protect their property.

English customs laws were later explicitly applied to the

American colonies under the 1696 Act for Preventing

Frauds and Regulating Abuses in the Plantation Trade.

Customs officials of the colonies were often royal

appointees sent from England, and these laws gave them

permission to execute a search of anyone?s premises

searching for contraband. They were given a general writ

of assistance, issued by the superior provincial courts, 14

which served as searched warrants with which they could

enter any premises to search for and ?seize... and bring

any kind of goods or merchandise whatsoever prohibited

and uncustomed.? 15 A general writ indicated that customs

agents could immediately search the premises and seize

any items they deemed a violation of the law ? without

initially presenting evidence of illegal activity. These writs

never expired, and for a period of time were transferable to

anyone.

By February of 1761, some infuriated merchants protested

against these writs that gave limitless power to custom

officers. James Otis Jr., a lawyer, legislator, and then an

advocate general in Massachusetts, resigned from his

position in the acting attorney general?s office and became

lead counsel for the merchants in Court. 16 Otis argued

before the Superior Court of Massachusetts saying that

issuing general writs to officers without scrutiny

essentially granted them unlimited power of search and

seizure. The merchants, led by Otis, lost the case.

Ironically for a country that 107 years later would adopt a

constitutional amendment protecting citizens from seizure

of their property without due process of law, the 1st U.S.

Congress (1789), following the American Revolution, 17

adopted the English law of forfeiture and gave courts

permission to seize property and distribute the income

between the Treasury and the law enforcement officials. 18

Much later, during the Prohibition period of the 1920s,

forfeiture was used extensively to seize the property of

bootleggers in an attempt to stymie the production and sale

12. Exodus 21:28 King James Bible.

13. Steven Schwarcz and Alan Rothman, ?Civil Forfeiture: A Higher Form of Commercial Law?? Fordham Law Review 62, no. 2 (1993): 287-320,

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1441&context=faculty_scholarship

14. Encyclopaedia Britannica, s.v. ?Writ of Assistance - British-American Colonial History,? last modified February 28, 2020,

https://www.britannica.com/topic/writ-of-assistance

15. James M. Farrell, ?The Child Independence is Born: James Otis and Writs of Assistance,? University of New Hampshire Scholars?Repository,

University of New Hampshire, 2014,

https://scholars.unh.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1004&context=comm_facpub, 5.

16. Francisco F. Segado, ?James Otis and The Writs of Assistance Case (1761)? in Common European Legal Thinking: Essays in Honour of Albrecht

Weber (Springer International Publishing AG Switzerland, September 2016), 1-26.

17. U.S. Const. amend. XIV, § 1

18. An Act to regulate the Collection of Duties imposed by law on the tonnage of ships or vessels, and on good, wares and merchandises imported

into the United States, 1st Congress, Session I, Ch. 5 §38 (1789), https://www.loc.gov/law/help/statutes-at-large/1st-congress/session-1/c1s1ch5.pdf.


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of alcohol. This became the model for the tremendous brief to the U.S. Supreme Court, saying that ?state and

expansion of civil asset forfeiture that was a principal local governments nationwide increasingly depend heavily

weapon in the U.S. War on Drugs in the 1970s. 19

on fines and fees as a source of general revenue.? 23

Forfeiture laws in the United States were amended and

became more prominent in 1984 after the passage of the

Comprehensive Crime Control Act under President

Reagan?s administration. Prosecutors and law enforcement

officials in favor of the program at the time insisted that it

was ? a very powerful law enforcement weapon? which

would help them fight the drug war. 20 Since then, many

states have adopted their own asset forfeiture laws,

expanding it in various unique ways, typically in

accordance with the political stance of the presiding

legislative body. Many states still continue to utilize the

JudæoChristian and Anglo concept of deodand, treating

civil asset forfeiture as an in rem procedure and thus,

regarding the object or physical property as the ?evil

sought to be remedied.? 21

Reagan?s ?War on Drugs? and the new laws concerning

asset forfeiture gave law enforcement officials broad

authority to seize property. According to 18 U.S.C.

§938(i), the Civil Forfeiture statute is defined as ?any

provision of federal law providing for the forfeiture of

property other than a sentence imposed upon conviction of

a criminal offense.? 22 These provisions have transformed

in rem forfeiture proceedings into a lucrative venture for

many law enforcement bureaus. The American Civil

Liberties Union (ACLU) has criticized the program in a

Today, while some states such as North Carolina,

Wisconsin, and California have adopted more stringent

regulations concerning forfeitures to curb abusive use of

forfeiture proceedings, federal law allows local law

enforcement to bypass state laws. Under the Department of

Justice?s Federal Equitable Sharing Program (FESP), local

and state law enforcement officers can seize assets and

share them with federal enforcement agencies if the

?conduct giving rise to the seizure is in violation of federal

law and where federal law provides for forfeiture.? 24

Through equitable sharing, up to 80 percent of the

proceeds can be returned to, or ?shared with? local and

state agencies, while the federal government gets to keep

the remainder. 25

In holding that civil asset forfeiture is subject to the Eight

Amendment limitation on excessive fines in Timbs v

Indiana (2019), Justice Ginsburg cautioned that forfeitures

have been ?employed in a measure out of accord with the

penal goals of retribution and deterrence? and ?undermine

other constitutional liberties.? In the past twenty years,

some courts have recognized this abuse and brought some

aspects of forfeiture within the bounds of legislative

control. Forfeiture proceedings continue nonetheless,

without a framework for determining when a forfeiture is

so excessive as to violate the Eighth Amendment, without

19. ?Civil Forfeiture,? Legal Information Institute, Cornell Law School, accessed May 19, 2020, https://www.law.cornell.edu/wex/civil_forfeiture

20. John Enders, ?Forfeiture Law Casts A Shadow On Presumption Of Innocence : Legal System: Government Uses The Statute To Seize Money

And Property Believed To Be Linked To Narcotics Trafficking. But Critics Say It Short-circuits The Constitution,? Los Angeles Times, April 18,

1993, http://articles.latimes.com/1993-04-18/local/me-24209_1_forfeiture-law

21. Donald Boudreaux and A.C. Pritchard, ?Innocence Lost: Bennis v. Michigan and the Forfeiture Tradition,? Missouri Law Review 61, Iss. 3

(Summer 1996): 596

22. ?18 U.S. Code §?1467. Criminal Forfeiture,? Legal Information Institute, Cornell Law School, accessed May 19, 2020,

https://www.law.cornell.edu/uscode/text/18/1467

23. Timbs v. Indiana, 586 U.S. 7 (2019).

24. ?Federal Equitable Sharing.?

25. Ibid.

26. Timbs, 586 U.S. 6.


13


fair procedural safeguards for persons whose property is financial incentive to pursue forfeiture cases.

taken without conviction of a crime, and without

Nine years after the passage of the 1984 Act which

regulations on the strong financial incentive that state law

established the Asset Forfeiture Fund, the Justice

enforcement agencies have to circumvent state law, the

Department reported almost $3 billion worth of cash and

Federal Equitable Sharing Program. 27

other property 29 , and between 2000 and 2013 alone, the

Financial Incentives and The Federal Equitable program generated approximately $4.7 billion for law

Sharing Program (FESP)

enforcement agencies. 30

Title III of the 1984 Comprehensive Crime Control Act,

which expanded the regulations and procedure for asset

forfeiture, also established the Asset Forfeiture Fund. This

permits law enforcement to retain forfeited property for

official use or for transfer to other Federal, state or local

governmental agencies assisting in related Federal law

enforcement. 28 The Fund is housed in the U.S.

Departments of Justice and the Treasury (as was mandated

by the 1st Congress in 1789) who handle the distribution to

state and local offices through the FESP. This program

allows the federal government to ?adopt? forfeiture cases

from state and local law enforcement if the property seized

is part of an ongoing federal investigation in which the

defendants are being prosecuted in federal court, if the

investigation concerns violation of a federal law, or if the

local or state agency worked in tandem with federal law

enforcement. Any revenue gained from that proceeding by

federal law officials would be split with the local or state

office from where the case was ?adopted.? This meant that

even in states where stringent laws and regulations had

been enacted to prevent abuses of asset forfeiture, law

enforcement in those states now had another path and a

Even though civil forfeiture is based on the relationship of

the seized asset to an alleged crime, research shows that

about 80% of federal forfeitures occur absent prosecution

of the underlying crime. 31 A 2014 investigation by the

Washington Post into Department of Justice data found

that there were 61,998 cash seizures made during highway

and roadside stops without search warrants or indictments

since 9/11. 32 These seizures ? half of which were under

$8,800 ? were made through the FESP and brought in

more than $2.5 billion to federal, state, and local law

enforcement agencies. 33 The economic incentive for law

enforcement to pursue civil forfeitures, in addition to the

lenient regulations they have to follow in most states and

the strenuous process for reclaiming assets, means that

civilians that get caught up in this system are doomed ?

regardless of the case?s outcome.

Currently, asset forfeiture laws in more than 26 states

direct 100% of all forfeiture proceeds to law enforcement.

In many law enforcement bureaus, profit from asset

forfeitures constitute a significant source of income for

budgets. In certain cases, proceeds from forfeitures are

27. The Supreme Court held in Timbs v. Indiana that the Excessive Fines Clause of the 8th Amendment is incorporated in the Bill of Rights and

therefore applies to states.

28. Comprehensive Crime Control Act of 1984, S. 1762, 98th Congress (1983 ? 1984),https://www.congress.gov/bill/98th-congress/senate-bill/1762.

29. Enders.

30. ?Federal Equitable Sharing.?

31. ?Part I: Policing for Profit? in ?Policing for Profit: First Edition - The Abuse of Civil Asset Forfeiture,? Institute for Justice, March 2010,

https://ij.org/report/policing-for-profit-first-edition/part-i-policing-for-profit/ (Many states, however, report combined data on civil and criminal

forfeitures, making it difficult to track them in detail.)

32. Michael Sallah et al., ?Stop and seize: Aggressive police take hundreds of millions of dollars from motorists not charged with crimes,? The

Washington Post, September 6, 2014, https://www.washingtonpost.com/sf/investigative/2014/09/06/stop-and-seize/?utm_term=.0481894ab90a

33. Ibid.


14


used to cover officers?salaries and overtime pay. 34 speedy trial and to the assistance of counsel for defence is

preserved under the Sixth Amendment. In short, the legal

In 2015, then-Attorney-General Eric Holder ceased the

principle is that one who is accused of a crime is innocent

FESP and barred local and state law enforcement from

until proven guilty.

using federal law to seize assets without a criminal

conviction (except for public safety reasons, in situations

involving ammunition, for example). 35 However, under the

Trump administration, Attorney General Jeff Sessions

reinstated the program in 2017 and asserted that forfeiture

was a ?key tool ? that weakened the criminals and the

cartels,? 36 even though the evidence shows that most

defendants of forfeiture claims are not convicted of a

However, civil asset forfeiture proceedings go contrary to

all these laws. Until CAFRA in 2000, the government only

had to ?demonstrate probable cause that a property was

subject to forfeiture,? the lowest standard of proof, which

is merely indicating that there is reason to believe that a

person had committed a crime; yet the burden of proof

shifted to the claimant who had to prove ?by a

crime. Asset forfeiture has evolved from an preponderance of evidence that the property was not

illegal-substance prevention tool to a money-making

machine for the government, and the judicial process

currently in place for forfeiture proceedings demonstrates

that from the onset, victims of asset forfeiture have little

chance of successfully contesting the government.

Constitutional Background

The Constitution includes several amendments that are

written to ensure free and fair trial in criminal proceedings:

the Fourth Amendment prohibits unreasonable searches

and seizures and requires law enforcement to prove

subject to forfeiture.? 37 Today, six states still employ the

probable cause burden of proof. 38 Twenty-seven states now

require law enforcement officials to demonstrate ?by a

preponderance of evidence? that the item in question

should be subject to forfeiture, and this is the same on the

federal level for civil proceedings. However, to prove guilt

by ?preponderance of the evidence,? one simply needs to

convince the judge that there is a ?greater than 50% chance

that the claim is true,? and that it is more likely than not

that the property is related to criminal conduct ? still a

relatively low standard. 39

probable cause and have a warrant to search a person or

In Austin v. United States, the Supreme Court held that

their property. The Fifth and Fourteenth Amendment both

forfeiture ?under §881(a)(4) and (a)(7) is a monetary

instruct that no person be deprived of property or be

proven guilty without due process of law. The right to a

punishment.? 40 Drawing from the history of English and

34. Dick Carpenter et al., ?Policing for Profit: The Abuse of Civil Asset Forfeiture. 2nd Edition,? Institute for Justice, accessed May 19, 2020,

https://ij.org/report/policing-for-profit.

35. Robert O?Harrow Jr. et al., ?Holder Limits Seized-Asset Sharing Process That Split Billions With Local, State Police,? Washington Post, January

16, 2015,

https://www.washingtonpost.com/investigations/holder-ends-seized-asset-sharing-process-that-split-billions-with-local-state-police/2015/01/16/

0e7ca058-99d4-11e4-bcfb-059ec7a93ddc_story.html?utm_term=.312381daad75

36. U.S. Department of Justice, Office of Public Affairs, ?Attorney General Sessions Issues Policy and Guidelines on Federal Adoptions of Assets

Seized by State or Local Law Enforcement,? July 19, 2017,

https://www.justice.gov/opa/pr/attorney-general-sessions-issues-policy-and-guidelines-federal-adoptions-assets-seized-state

37. United States v. 434 Main Street, Tewksbury, Massachusetts, 862 F.supp. 2d 24 (D. Mass 2012).

38. Asset Forfeiture Laws by State,? FindLaw, Thomas Reuters, February 06, 2019,

https://criminal.findlaw.com/criminal-rights/asset-forfeiture-laws-by-state.html

39. ?Preponderance of the Evidence,? Legal Information Institute, Cornell Law School, accessed May 19, 2020,

https://www.law.cornell.edu/wex/preponderance_of_the_evidence

40. Austin v. United States, 509 U.S. 602 (1993).


15


American law, the Court stated that ?forfeiture generally, Clause is incorporated in the Bill of Rights, and thus

and statutory in rem forfeiture in particular, historically applies to states, and upheld the unanimous decision in

have been understood, at least in part, as punishment,? 41 Austin v. United States, where the Court agreed that ?civil

and thus, forfeitures are properly considered punishment in rem forfeitures are fines for purposes of the Eighth

today. Yet still, several law enforcement agencies continue Amendment when they are at least partially punitive.? 44 In

to rationalize the limited protections in forfeiture short, these opinions invalidate the claims that asset

proceedings by construing its legal purpose as remedial, forfeiture is remedial and not punitive. 45 Even though the

since regarding it as punitive would render the proceeding exact demarcation of what constitutes an ?excessive fine?is

a quasi-criminal one ? demanding them to prove beyond still unclear, one thing is for sure: asset forfeiture is a form

a reasonable doubt that the property was implicated in a of punishment and should guarantee all the constitutional

crime. 42

procedural protections that are available to defendants in

criminal case proceedings.

The Indiana Court of Appeals acknowledged in Timbs v.

Indiana that forfeiting Timbs?s $42,000 Land Rover for a Socio-Economic Impacts ? The New Drug War

drug offense of which the maximum fine was $10,000

The nonobservance of constitutional rights and procedural

?would be grossly disproportionate to the gravity of [the]

protections in forfeiture cases particularly affect the

offense,? but the Indiana Supreme Court reversed this

vulnerable, including specifically, the poor and racial

holding. Despite granting certiorari and determining that

minorities, who simply cannot afford the time or resources

the excessive fines clause applies to state forfeiture laws,

to get justice. In 2015, the ACLU of Pennsylvania found

the Supreme Court did not answer the question as to

from an analysis of 351 random samples of cash forfeitures

whether forfeiting the Land Rover would be excessive as

that the median amount seized was $192. 46 Almost 60% of

the question was not presented to the Court. It also

cash seizures were less than $250 and one third of them

declined to review the question as to whether the Eighth

were for less than $100. 47 Forfeitures were also

Amendment?s Excessive Fines Clause restricts states use

concentrated in some of the city?s poorest neighborhoods,

of civil asset forfeiture. 43 However, the Supreme Court

like Kensington. Despite many law enforcement offices

decided that the Eighth Amendment?s Excessive Fines

41. Ibid.

42. ?Understanding Contempt of Court Violations,? Goldman Law, LLC, February 2017,

https://goldmanlaw303.com/understanding-contempt-court-citations/

43. Timbs, 586 U.S. 6.

44. Ibid. (citing Austin v. United States, 509 U.S. 602).

45. Alice W. Dery, ?Overview of Asset Forfeiture?, American Bar Association Business Law Section

https://www.americanbar.org/groups/business_law/publications/blt/2012/06/02_dery/

In 2012, the American Bar Association held that civil forfeiture was remedial rather than punitive in nature since the goal was not to punish but to

remedy the harm caused to society by the criminal activity. The Supreme Court fundamentally disagrees as opined in Timbs v. Indiana & Austin v.

United States.

46. Christopher Ingraham, ?How Philadelphia seized millions in ?pocket change?from some of the city?s poorest residents,? Washington Post, June

10, 2015,

https://www.washingtonpost.com/news/wonk/wp/2015/06/10/how-philadelphia-seizes-millions-in-pocket-change-from-some-of-the-citys-poorestreisdents/?utm_term=.d21259a3b5d5

47. Anna Lee et al., ?Exclusive: How Civil Forfeiture Errors, Delays Enrich SC Police, Hurt People,? Greenville News, January 17, 2020,

https://www.greenvilleonline.com/in-depth/news/taken/2019/01/29/civil-forfeiture-south-carolina-errors-delays-property-seizures-exclusiveinvestigation/2460107002/


16


insisting that asset forfeiture?s main goal is to capture drug the cash seized by South Carolina police comes from

traffickers and kingpins, poor, innocent residents bear the Black men and seven out of 10 people whose property are

brunt of police intimidation. It is also worth noting the seized are Black. 53 These statistics are painfully

racial composition of Kensington which, as of the 2015 reminiscent of the historical and structural barriers that are

American Community Survey, was reported to be 47.7% responsible for the wide chasms in economic advancement

Hispanic and 14.4% Black or African American (with between African-Americans and Whites in America.

proportions of racial minorities higher than the national

Civil asset forfeiture bears staggering parallels to

average). 48

inequitable policies like redlining, mass incarceration, and

Research shows that around the country, the majority of stop and frisk ? all of these systematic issues which have

forfeiture cases involve Blacks and Hispanics. In 1992, a targeted and discriminated against racial minorities.

Pulitzer-Prize winning Orlando Sentinel report showed that Forfeiture is clearly a masked continuation of the ?War on

in Volusia County, Florida, ?nine out of every 10 seizures Drugs? which infiltrated African-American communities,

involve [B]lacks or Hispanics,? though the Sheriff insisted introduced draconian laws and sentencing guidelines for

that the stops were legitimate. 49 Yet, the trends across the minor, non-violent drug offenses in these areas, and

board are alarming; though data from the Justice propelled the incarceration rate, of Black and Hispanic

Department on forfeitures does not contain information men especially, to the highest levels ever seen in the

about race, in 400 federal court cases examined by The United States and all over the world. 54

Post where people challenged seizures, ?majority were

Conclusion

[B]lack, Hispanic or another minority.? 50 That was in

2014. In 2018, 64 percent of cases in Alabama where

As the use of forfeiture surged throughout the 1980s,

charges were filed had a Black defendant, even though the

money deposited into the Justice Department?s federal

African-American population in the state is only about 27

forfeitures fund increased from $27 million in 1985 to

percent. 51 And recently in 2019, research from South

$556 million in 1993, reaching $2.6 billion in 2007. 55 In

Carolina showed that ?Black residents have their money

2017, the Department of Justice Assets Forfeiture Fund

and property taken away by police... nearly three times

and Treasury Department Treasury Forfeiture Fund

more often than whites.? 52 An overwhelming 65 percent of

reported net assets totalling more than $4 billion. 56 Profits

48. United States Census Bureau, American Community Survey, 2015, https://www.census.gov/programs-surveys/acs

49. Jeff Brazil And Steve Berry, ?Tainted Cash or Easy Money?? Orlando Sentinel, June 14, 1992,

https://www.orlandosentinel.com/news/os-xpm-1992-06-14-9206131060-story.html

50. Sallah et al.

51. Southern Poverty Law Center.

52. Nathaniel Cary and Mike Ellis, ?65% Of Cash Seized By SC Police Comes From Black Men. Experts Blame Racism,? Greenville News, January

17, 2020, https://www.greenvilleonline.com/story/news/taken/2019/01/27/south-carolina-racism-blamed-civil-forfeiture-black-men-takenexclusive-investigation/2459039002/

53. Ibid.

54. Wendy Sawyer and Peter Wagner, ?Mass Incarceration: The Whole Pie 2019,? Prison Policy Initiative, March 19, 2019,

https://www.prisonpolicy.org/reports/pie2019.html

55. Sallah et al.

56. Brian D. Kelly, ?Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture,? Institute for Justice, June 2019,

https://ij.org/wp-content/uploads/2019/06/Fighting-Crime-or-Raising-Revenue.pdf

(Note: proceeds from civil and criminal forfeitures are reported together.)


17


from asset forfeiture have been squandered by law

enforcement in New Mexico to fix up a seized Cadillac

Escalade for personal use by an employee, 57 in Texas to

pay for margarita machines and personal trips to Hawaii, 58

and in Oklahoma to fund lawyers to attend a conference at

a ski resort. 59

whereby in some cases owners of cash are made to sign

their money over to the government and to sign

agreements not to sue the government in the future. It has

also disproportionately affected low-income and Black and

Hispanic communities, with these populations often

getting racially-profiled and bearing the brunt of

forfeitures without criminal convictions. If the statutory

States? reform of forfeiture laws have undoubtedly had

definition of civil asset forfeiture is any provision of

significant impacts to restrict power abuse; yet, they have

federal law providing for the forfeiture of property other

either ignored the bedrock of the program, the Federal

than a sentence imposed upon conviction of a criminal

Equitable Sharing Program, or the unconstitutional nature

offense, then civil asset forfeiture should be,

of civil forfeiture as it is now. In 1761, when James Otis

unequivocally, ruled unconstitutional since the provision of

argued in favor of the merchants against general writs, he

federal law providing for civil forfeiture is, in fact, based

told the Court that the writ was ?the worst instrument of

on an allegation of a criminal offense.

arbitrary power? and that it violated ?one of the most

essential branches of English liberty? which is the

?freedom of one?s house.? 60 Today, that statement still

holds true, with ?writs? denoting civil asset forfeiture and

the ?house?representing one?s personhood and property.

The establishment of the Fourth Amendment was driven

Civil asset forfeiture is, undeniably, the New War on Drugs

? dehumanizing, abusive, and racist. It is currently legal

but highly unethical, and more importantly, highly

unconstitutional, and the call for the law?s abolition is

exigent.

by a fear of overreaching governmental power, and the

Court has held that this amendment?s protection against

unreasonable searches and seizures applies in forfeiture

proceedings. 61 This supports the argument that civil asset

forfeiture, a policy that is based on antiquated,

pre-revolutionary English laws, is unconstitutional.

Forfeiture has created incentives for abusive police

practices, says Vanita Gupta, former head of the DOJ?s

Civil Rights Division and current president of The

Leadership Conference on Civil and Human Rights, 62

57. Harjo v. City of Albuquerque, 326 F. Supp. 3d 1145 (D.N.M. 2018).

58. Diane Jennings, ?Lawmakers Eye Reforms For Texas Asset Forfeitures,? Dallas Morning News, February 28, 2011,

https://www.dallasnews.com/news/texas/2011/02/28/lawmakers-eye-reforms-for-texas-asset-forfeitures

59. Robert O?Harrow Jr. et al., ?Asset Seizures Fuel Police Spending.? The Washington Post, October 11, 2014,

https://www.washingtonpost.com/sf/investigative/2014/10/11/asset-seizures-fuel-police-spending/?noredirect=on&utm_term=.0509aab8669b

60. Otis

61. Austin, 509 U.S. 602 (citing One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 696).

62. Mary Johnson, ?Washington D.C.: 5 Things to Know About The Woman Taking on N.C.?s ?Bathroom Law,?? Bizwomen, The Business

Journals, May 9, 2016,

https://www.bizjournals.com/bizwomen/news/profiles-strategies/2016/05/washington-d-c-5-things-to-know-about-the-woman.html?page=all


18

MERITS OF THE SIGNIFICANT

HARM THRESHOLD IN PEDIATRIC

CLINICAL DECISION-MAKING

Ashwin Palaniappan

ABSTRACT

This article analyzes the fallibilities of the best-interests test and advocates for the significant harm threshold when

resolving disagreements between parties over a child?s clinical care. The best-interests test empowers the court to identify

and indomitably administer the sole medical intervention that provides the highest benefit to a child?s welfare regardless

of parental preference; highlighting the intrusive nature of legal jurisdiction in pediatric care. Conversely, the significant

harm test protects parental authority and only sanctions judicial intervention when parental decisions pose significant

harm to the child, allowing parents to choose from a range of treatments that they are capable of providing for their child.

Parental authority over a child?s medical care should only be relinquished when there is risk of significant harm to a child,

which necessitates a higher threshold for judicial intervention than the orthodox best-interests test.


19

Merits of the Significant Harm Threshold in Pediatric Clinical Decision-Making

Introduction

of options. The power to make this decision should only be

relinquished from parents when the parents? decision

There is renewed public furor, after the publicized Charlie

carries a ?substantial risk of significant harm?to the child,

Gard and Alfie Evans litigations, over the capacities of

and then court intervention is permissible. Additionally,

court intervention in medical law cases concerning

only after court intervention has occurred in the significant

children in the United Kingdom. Both litigations have

harm test, can the court then employ the best-interests test

reinforced the ability of the court to make medical

concerning treatment options for the child. This significant

decisions for a child, if the child?s welfare is under

harm threshold is markedly more instructive than the

scrutiny. The court?s legal capacity to intervene is

competing best-interests test, which is a broad test that

embodied in the parens patriae principle conferred to the

gives the court immense power to intervene if the

law authority of the Attorney General, with jurisdiction in

both England and Wales. 1 particular best-interest of a child is not being followed in

Parens patriae, ?father of the

the child?s medical plan or treatment regimen due to the

people,? is the power of the state to serve as a ?surrogate

perspectives of those involved with the treatment. Both the

parent? for dependent individuals, namely children, when

best-interests test and the significant harm threshold agree

there is a need to protect the well-being and life of

vulnerable populations. 2 that parental authority is not absolute, but the significant

This capacity is explicitly written

harm test provides significantly more guidance than the

in the 1989 Children?s Act in which the ?child?s welfare

shall be the court?s paramount consideration.? 3 best-interests test. Additionally, the significant harm test

Both the

has been successfully employed by healthcare

Gard and Evans rulings employed the conventional

professionals and courts, highlighting a need to change the

best-interests test when determining medical decisions for

current standard.. Casuistry examples of the significant

the child in question. The best-interests test is a metric

harm test being the benchmark for court intervention

used by the court which permits judicial intervention when

include Prince v Massachusetts, People Ex Rel. Wallace v

the welfare of a child is endangered. This arises in

Labrenz, and the Charlie Gard case. The significant harm

circumstances where the most optimal medical decision is

test should be employed by courts in place of the

not being chosen for the child, and the court will

best-interests test because the best-interests test

consequently rule in providing medical interventions that

quixotically expects parents to accurately weigh the

align with the ?best-interests?of the child?s welfare. This

different priorities of their children in a utopian society and

paper argues that the current standard best-interests test is

expects these parents to consistently select the most

inferior to a significant-harm test. The significant harm test

optimal treatment possible for their children at every stage

is another metric that can be applied by courts and

of life. It is far more pragmatic to employ the significant

differently demarcates when judicial intervention is

harm test, where the state entrusts parents with the ability

permissible. The significant harm test champions a claim

to make medical decisions for their children and only

that the authority to make decisions concerning the

intervenes and assumes custody of the child if a medical

medical care of children lies primarily with the parents,

decision will yield significant harm to the child.

who can select a medical intervention from a larger range

1. ?Parens patriae?, Practical Law UK Glossary 6-383-8338,, accessed December 17,

2019,https://uk.practicallaw.thomsonreuters.com/6-383-8338?transitionType=Default&contextData=(sc.Default).

2. Yolanda Vorys, ?The Outer Limits of Parental Autonomy: Withholding Medical Treatment from Children?, Ohio State Law Journal, Vol. 42, pp.

813-829, https://kb.osu.edu/bitstream/handle/1811/65162/OSLJ_V42N3_0813.pdf.

3. UK Public General Acts, 1989 c.41, Section 37 accessed December 24, 2019, http://www.legislation.gov.uk/ukpga/1989/41/section/37.


20


Nonclinical Application of the Significant Harm Test in had been applied, by assigning variable weights of the

Prince v Massachusetts

religious commitment of the child and the upbringing of

the child, which could have ultimately kept her in child

The scope of the significant harm test extends beyond a

labor. The flaw of applying the best-interests test in Prince

spectrum of clinical care since it deals with a child?s

v. Massachusetts is this inconsistency. Conversely, the

welfare, which can be influenced by factors beyond

significant harm threshold has a higher level of clarity and

medical decisions. In the case of Prince v Massachusetts,

consistency, which allowed the court to identify the harm,

the significant harm test was applied in a context outside

the uncertainty of public harm befalling a child on the

of medical care in order to protect a child from unfair labor

street, and remove the child from that harm.

practices. The facts of the case revolved around Betty M.

Simmons, a nine-year-old girl, and Sarah Prince, her Jurisdiction of the Significant Harm Test in People Ex

guardian. Prince would give Simmons religious pamphlets Rel. Wallace v Labrenz

and instruct Simmons to sell the pamphlets on a public

Hallmark cases regarding the use of the significant harm

street corner. Though Prince claimed Simmons was

threshold to safeguard children relate to children of

exercising her right to religious freedom, this behavior

committed Jehovah?s Witnesses who refuse to allow their

violated child labor laws. The capacity to use religious

child to have a lifesaving blood transfusion. A specific

freedom to bypass a child labor law was investigated;

example is People Ex Rel. Wallace v Labrenz, where a

ultimately the court ruled that if worship in the churches

child suffering from erythroblastosis fetalis ? red blood

and the activity of Jehovah's Witnesses on the streets

cells dying from antibodies ? had a distinctly low blood

"occupy the same high estate" and have the "same claim to

count, less than half the healthy blood count for her given

protection," 4 then child labor laws may be applied to both

physiology. The parents refused to consent to the blood

if it is applied to either. This case set the precedent that the

transfusion that was necessary to elevate the blood count

state can intervene in a child?s religious activities if it

of their daughter. Her father said: ?The life is in the blood

affects the child?s well-being. A previously standing statute

and the life belongs to our father, Jehovah, and it is only

to prevent child labor enabled the court to intervene on

his to give or take; it isn't ours, and as such I object to the

constitutional grounds to prevent harm from befalling the

using of the blood in connection with this case." However,

child. The court raised the issue of the crippling effects of

the harm was elucidated to the court by three different

child employment, specifically in public places, and

physicians: two believed death was inevitable without a

possible harms arising from other activities subject to the

transfusion, and the third believed in a slim chance of

diverse influences of the street. 5 This case highlights how

survival, where the child would survive with an

the significant harm threshold was utilized to allow the

irreversible mental impairment. The significant harm was

court to intervene to protect Simmons because Prince

not administering the blood transfusion, and upon realizing

continuously subjected her to child labor on public streets,

that, the court overruled the parents?desire of refusing a

which was dangerous for a nine-year-old child, fulfilling

lifesaving blood transfusion and transferred the custody of

the significant harm clause. The best interests test might

their daughter to a guardian, the chief probation officer,

have been interpreted in a myriad of different manners if it

4. Prince v. Massachusetts, 321 U.S. 158 (1944).

5. Ibid., 169.

6. People Ex Rel. Wallace v. Labrenz, 104 N.E.2d 769 (1952).

7. Ibid., 104 N.E.2d 770.

8. Ibid., 104 N.E.2d 773.


21


during the transfusion. This case went a step further when

the court did not immediately return the daughter to the

parents after the transfusion, but informed the chief

probation officer to remain her guardian until further

medical examinations were completed. 9 The court?s refusal

to return the child to her parents is indicative of the court?s

jurisdiction to invoke the condition of lingering significant

harm in order to maintain custody of the child beyond the

end of the incident in question. Parents can be consistently

medical decisions and increasing the possibility of judicial

incursions into a family. The parens patriae principle is

when vulnerable populations, such as a young girl with a

dangerously low blood count, need protection from harm,

such as refusal of lifesaving treatment, and a court

intervening to fulfill parental responsibilities of pursuing

recovery upholds beneficence.

Utilitarian Benefits

overruled until the child is no longer at risk ? in this case,

There is also a utilitarian benefit where fewer

the child in question was not returned to her parents until

medical examiners determined she had reached a normal

blood cell count. The significant harm threshold served as

a guiding principle for the medical care of the child from

onset of symptoms till she was safely out of the perils of a

low blood cell count, which is in the best-interests of the

child. This litigation exemplifies how judicial intervention

began due to the significant harm threshold being met, and

once the court had the authority to make a medical

decision for the child, they chose a medical intervention

that would be in the best-interest of the child?s welfare.

Additionally, a critique of the significant harm test is that

children will not be protected before suffering a fatal

outcome because the best-interests test imposes the best

possible care for the child at all times. People Ex Rel.

Wallace v Labrenz invalidates that claim because it

demonstrates how judicial intervention after a significantly

harmful decision is made by parents can still protect

children before a harmful outcome arises. Parents are

given a range of options for medical care in the significant

harm test, and selecting a significantly harmful medical

treatment, in this case the refusal of treatment, justifies the

court?s authority to make medical decisions for a child.

The best-interests test contains a threshold for intervention

that is far too low and would have allowed for judicial

intervention at much earlier stages. This would negatively

affect parents who would feel cornered by the court into a

particular medical decision for their child, causing them to

feel as though they have less autonomy over their child?s

disagreements between parents and clinicians over a

child?s medical decisions will be tried in court, reducing

the emotional burden on the family of the patient during

the course of medical treatment and starting treatments on

the child sooner. This is because the discourse between the

significant harm test and the best-interests test also

revolves around when judicial intervention becomes

permissible. Under the guidelines of the best-interests test,

both of the two parties need judicial assistance if there is

any disagreement in order to convince the other party in

adhering to the treatment of their choice. For instance, if a

parent selects a medical intervention that is not what the

clinician desires for the child, the parent needs the

assistance of a court to convince the clinician to treat their

child with that treatment. Conversely, if a clinician wants

to treat a child with a treatment that parents do not give

consent to, the clinician needs the assistance of the court.

The utilitarian benefit arises from the significant harm test

because clinicians will have to prove the treatment the

parents suggest will cause harm to the child, otherwise

they have to oblige and perform the treatment the parents

want for their child. Therefore, fewer litigation cases will

arise from a discrepancy in treatment wishes between

parents and clinicians, reducing legal costs for National

Health Service (NHS) trusts and hospitals that can be

diverted towards medical care, yielding better outcomes

for patients. The significant harm test also aligns more

effectively with the Hippocratic Oath. The Hippocratic

Oath is a ceremonial swearing of physicians that outlines a

9. Ibid., 104 N.E.2d 774.


22


medical professional?s moral compass. It stresses the concerned is suffering or is likely to suffer significant

importance of a physician in ?seeking counsel of others harm, and that the harm is attributable to parental care or

when they are more expert so as to fulfill [the physician?s] the child being beyond parental control. 13 However,

obligation to those who are entrusted in [the physician?s] medical decisions use the best-interests test, which

care.? 10 The physician cannot uphold this clause if they do suggests the court can intervene whenever parents are not

not give weight to the decisions of the parents who weigh doing what is precisely the best for their child. This is

countless nonmedical values and priorities in the extremely restrictive and impractical because parents are

upbringing of a child, opposed to a physician who is solely fallible, and there will naturally be instances where

responsible for the medical aspects.

faultless, conscious parental care is precluded by any

number of reasons ranging from stress, multiple children,

Analysis of the Charlie Gard Case

or simply a limited income. For instance, when arriving at

The Charlie Gard case intensified legal scrutiny over the

a medical decision for a child, parents have to

discrepancies between the significant harm threshold and

contextualize this medical decision in the larger picture of

the best-interests test. The patient, 11-month old Charlie

their child?s upbringing. A parent might not have the

Gard, suffered from encephalomyopathic mitochondrial

resources to consistently ensure their child receives the

DNA depletion syndrome, which is a genetic disorder with

best medical treatment and will have to decide what is the

a poor prognosis. 11 An experimental nucleoside treatment

best they can do given their circumstances. There is also a

in the United States could save Gard, but the Great

plausible situation where intensive medical procedures on

Ormond Street Hospital (GOSH) wanted to end life

one child in a family takes time away from the other

support and give Gard a dignified death. Ultimately, the

children in the family, and parents have to weigh the

court ruled with the GOSH and the parents accepted the

importance of family life against the medical treatment of

fate after the American physician involved with the

a child. Different parents have different values and

nucleoside treatment examined Gard and concluded that

priorities, and it is important to minimize intrusions into

survival would be rare due to the progression of the

family life, which is better accomplished under the

disease. 12 This decision polarized the public because the

significant harm test.

court?s intervention and authority ultimately led to Gard?s

Scope to Minimize Rationing

death. The Gard case should have been judged on the

merits of whether the experimental treatment is harmful Despite the moral necessity, it is impractical from a

and acted upon before the disease progressed significantly resource standpoint to undertake the best-interests test in

because of a desire to delicately enunciate the best-interest all medical situations which require it. The NHS is already

of a child in a time-consuming process. This is also overworked and understaffed ? the added responsibility

inconsistent with social service practices. For instance, the of childcare would exacerbate existing issues. Thus, there

1989 Children?s Act allows for public authorities to is an inherent tension between using the best-interests test

remove a child when the court is satisfied that the child while actively rationing NHS services. For instance, in

10. Hantman Melissa, ?Revised Hippocratic Oath Resonates with Graduates,? Cornell Chronicle, Weill Cornell Medical College, June 22, 2005,

http://www.news.cornell.edu/stories/June05/Hippocratic_Oath.mh.html.

11. Charlie Gard: The story of his parents' legal fight, July 27, 2017, https://www.bbc.com/news/health-40554462.

12.Ibid.

13. Dominic Wilkinson, ?The Charlie Gard Case,? in Ethics, conflict and medical treatment for children: From disagreement to dissensus, U.S.

National Library of Medicine, September 4, 2018, https://www.ncbi.nlm.nih.gov/books/NBK537990/.

14. Emily Jackson, Medical Law: Text, Cases, and Materials, (United Kingdom: Oxford University Press, 2019), 331.


23


November 2019, the NHS disclosed a list of 34 routine

treatments and tests to be rationed, ranging from X-rays on

sore backs, replacement of arthroscopies with painkillers,

to kidney stones being removed via ultrasound on

outpatient wards instead of an invasive surgery in an

operating theatre. Therefore, rationing is already present in

the NHS, which leads to poorer health outcomes. It is

important to minimize rationing in efforts to promote

health outcomes, and the significant harms test achieves

this because not all parents will elect for the highest

resource demanding treatments.

The Larger Framework of United Kingdom Law

Contextualizing this in the larger framework of UK

medical law, the best-interests test is inconsistent. UK law

accepts the impact of legislations on those closest to the

patient in litigations in confidentiality, where the ethical

duty to the dead, maintaining the secrecy of cause of death,

dwindles as time goes on out of regard for relatives of the

dead patient and their public images. Similarly, in medical

malpractice cases, there is a duty of care to non-patients,

when it can be established that there is a proximity of time

and space between the caretaker of a patient and the

patient. However, in medical incapacity cases relating to

children, the category of UK law that the best-interests test

would fall under, there is a stark inconsistency where there

is little regard given to the relationship between parents

significant harm threshold allows for this because the

alternative therapies parents seek are evaluated solely on

efficacy, not juxtaposed with other treatments, which

would further complicate the decision, as it is in the

best-interests test. It also supports Article 8, which

concerns the right to respect for private and family life,

because there are decisions that parents make that may not

be perfect, but is one that they are capable of and can

afford in a pragmatic society, where the best medical

intervention for their child is beyond their capacities.

However, in cases where the child is at risk for significant

harm, it is justifiable to remove them from the custody of

their parents under the parens patriae power, and then

administer the best-interests test. By giving parents leeway

in medical decisions for their children within a healthy

range of options, there is also a utilitarian benefit because

not all parents will opt for the most resource demanding

treatment, freeing up resources for others. There will

always be variation in parenting methods, and it is

sufficient when courts only intervene to prevent significant

harm to the child. Addressing these issues between the

significant harm test and best-interests test in contexts such

as the Gard case will always be muddled with public

discourse, but it is also imperative that judicial intervention

only comes at a time when there is harm to befall a child,

not when the chosen medical intervention is not as high

yield as the medical intervention the best-interests test

and children. The best-interests test is therefore

would have produced. This shift to the significant harm

inconsistent because the courts emphasize this relationship

significantly in patient confidentiality judgments such as in

Re C (Deceased) [2016] EWCOP 21, but fail to give the

same relationship comparable weight in rulings concerning

the parental authority in deciding medical care of a child.

Conclusion

Medical decisions often need to be made quickly, and the

test will better balance the jurisdiction of parents

concerning the care of their children with the protection of

children while not being overly invasive in the private

lives of families. The significant harm test also signals a

message of tolerance of differing opinions regarding

medical care and underscores a commitment to respecting

those differing opinions.

15.Denis Campbell, Revealed: NHS plans to ration 34 everyday tests and treatments, The Guardian, November 29,2019,

https://www.theguardian.com/society/2019/nov/29/revealed-nhs-plans-to-ration-34- unnecessary-tests-and-treatments

16. Jo Maybin, Anna Charles, Matthew Honeyman, ?Thinking about rationing. London: The King?s Fund,?

www.kingsfund.org.uk/publications/thinking-about-rationing, 2012

17. Jackson, 417.

18. Ibid., 164-165.


24

THE GUARANTEE CLAWS: HOW

THE CONSTITUTION CAN SHRED

STATE LAWS RESTRICTING

VOTING RIGHTS

Annabelle Hutchinson

ABSTRACT

The Guarantee Clause of Article IV, Section IV of the U.S. Constitution states, ?[T]he United States shall guarantee to

every State in this Union a Republican Form of Government.? In this essay, I argue that the Guarantee Clause can be used

as the basis upon which unfair state voting laws might be ruled unconstitutional and thereby struck down in the courts. In

Part I, I introduce my reason for writing the article: the importance of fair electoral practices in republican governments.

In Part II, I lay out a brief history of the Guarantee Clause in U.S. legal history and how it became entangled with the

?political question doctrine.? That doctrine holds that some questions brought to courts are by nature political, not legal,

and that those cases are nonjusticiable, that is, that they should not be ruled upon. In Part III, I present a case for the

justiciability of the Guarantee Clause. If the Guarantee Clause is justiciable, then courts are free to use it to strike down

unfair electoral laws.


25

The Guarantee Claws: How the Constitution Can Shred State Laws Restricting Voting Rights

Introduction

constitution, instead of drafting a new one like other states

in the Union. The charter included property ownership in

Voting is the most fundamental act of democracy.

its state voting requirements, which precluded over half of

However, state laws continue to disenfranchise millions of

the otherwise eligible electorate from voting.

Americans, restricting their ability to vote or diminishing

the meaning of their votes through gerrymandering. The In October 1841, Rhode Islanders held a constitutional

question remains: if legal efforts thus far have not gone far convention in opposition to the royal charter and passed

enough to extend justice and fairness in voting, then what the ?People?s Constitution? which enfranchised all white

other avenues of recourse can be pursued? In Federalist males over the age of twenty-one. Violence ensued

No. 57, James Madison writes, ?The elective mode of between a constitutional government led by Governor

obtaining rulers is the characteristic policy of republican William Dorr and a royal charter government led by

government.? 1 A republican form of government is not Governor William King (whose very name certainly

constitutionally tenable without fair elections. Therefore, enraged the constitutionalists). 4 A constitutional supporter

state laws that restrict the ability to vote or the significance brought a suit before the Supreme Court, arguing that the

of a citizen?s vote should be deemed unconstitutional per royal charter was invalid under the Guarantee Clause. 5 The

Article IV, Section IV of the United States Constitution, Supreme Court, in Luther v. Borden, ruled that such cases

commonly known as the Guarantee Clause.

were nonjusticiable and that the Court could not determine

the legitimacy of a state government, effectively neutering

A History Of The Guarantee Clause

the Guarantee Clause. Enshrined in Baker v. Carr but with

In 1867, Senator Charles Sumner, famed for having been

roots in Marbury v. Madison, the political question

beaten with a cane on the floor of the Senate by a southern

doctrine declares a case too political to be adjudicated by

Democrat before the Civil War, described the Guarantee

the Court and limits judicial review. More recently, the

Clause as ?a sleeping giant in the Constitution.? 2 The

understanding of the Luther case as a political question

clause proclaims that, ?[T]he United States shall

doctrine ruling has been challenged by scholars, as will be

guarantee to every State in this Union a Republican Form

discussed in Section III.

of Government.? That is, the clause grants the government

Post-war Reconstruction brought a renewed interest in the

the power to ensure that a state government is a republic,

Guarantee Clause as a constitutional basis for creating new

as opposed to some other form. After the Constitution was

southern institutions postbellum, which is what led Sumner

ratified, however, the clause went largely unnoticed until

to declare the Guarantee Clause a ?sleeping giant.? In the

the mid-19th century during the Dorr Rebellion in Rhode

Island, a conflict about unfair voting restrictions. 3 Arizona Law Review, Chicago-Kent College of Law

After the

Professor Carolyn Shapiro held that the Thirteenth,

American Revolution, the State of Rhode Island decided to

Fourteenth, and Fifteenth Amendments, collectively

keep its 17th-century Royal Charter as its state

known as the The Reconstruction Amendments, were

1. James Madison, ?The Federalist Papers: No. 57,? The Avalon Project, Yale Law School Lillian Goldman Law Library,

https://avalon.law.yale.edu/18th_century/fed57.asp.

2. CONG. GLOBE, 40th Cong.,1st Sess. 614 (1867) (statement of Sen. Sumner).

3. Justin Shatwell,?Dorr Rebellion: Rhode Island's Very Own, Very Small Civil War.? New England Today, Yankee Publishing Inc., 14 Mar. 2019,

newengland.com/today/living/new-england-history/dorr-rebellion/.

4. Matt Ford, ?Make the Guarantee Clause Great Again,? The New Republic, 17 July 2019,

newrepublic.com/article/154486/guarantee-clause-hindering-gerrymandering-reform/.

5. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).


26


informed by an understanding of the Guarantee Clause. 6

Specifically, the Fifteenth Amendment clarifies which

citizens have rights in a republican government, namely

black men as well as white; the Nineteenth Amendment

Reconstruction policies. 11 While Lincoln pocket vetoed the

measure for political reasons, the message about the

Guarantee Clause was clear: it was the constitutional

foundation that the federal government would use to

would do the same for women in the early 20th century. rebuild formerly Confederate state governments. 12

The Guarantee Clause played a noteworthy role during

congressional debates about Reconstruction. 7 Yale Law

professor Ahkil Amar argues in America?s Unwritten

Constitution that the Fourteenth Amendment, which

enshrined ?equal protection of the laws,? ?pivoted on a

fresh interpretation of the republican-government clause?

reflecting a ?principle of broad national control over

undemocratic state franchise law.? 8

Between the Civil War and 1873, Congress used the clause

liberally in its justification of southern Reconstruction. 13

Debates surrounding the Reconstruction Acts were rooted

in the Guarantee Clause. 14 The Acts included provisions

for military control of southern territory, a requirement for

states that had seceded to draft new state constitutions, and

expanded suffrage. Although Congress restrained itself

after 1873, that precedent remains.

Abolitionists held that slavery violated the very nature of a

republican government and argued that the Guarantee

Clause protected against such violations. Pro-slavery

Southerners countered that the Framers must have

condoned this contradiction given that twelve of the

thirteen original states permitted slavery. 9 In 1864,

Congress passed the Wade-Davis Bill which drew directly

upon the Guarantee Clause as the basis for

Reconstruction. 10 Henry Winter Davis, the U.S.

Representative from Annapolis, Maryland whose name

adorns the bill, firmly believed that the Guarantee Clause

empowered the federal government to carry out Radical

After Reconstruction, the Guarantee Clause was largely

overlooked until 1912 when Pacific States Telephone &

Telegraph v. Oregon reached the Supreme Court. Dicta

from Justice Taney?s opinion in Luther indicated that

Congress held the power in determining Guarantee Clause

issues. This dicta came to the fore in Pacific States.

However, use of the Luther dicta was potentially faulty as

the original opinion emphasized Luther?s uniqueness, thus

suggesting that the Court did not mean for this decision to

extend to future cases.Nonetheless, the Court maintained

that ?[T]he enforcement of [the Guarantee Clause],

because of its political character, is exclusively committed

6. Carolyn Shapiro, ?Democracy, Federalism, and the Guarantee Clause.? Arizona Law Review 62 (February 2019): 183-240,

https://ssrn.com/abstract=3355020

7. Ibid, pg. 203-204

8. Akhil R. Amar, America?s Unwritten Constitution: the Precedents and Principles We Live By. Basic Books, 2015.

9. Charles O. Lerche, ?Congressional Interpretations of the Guarantee of a Republican Form of Government during Reconstruction,? The Journal of

Southern History 15, no. 2 (1949): 196, www.jstor.org/stable/2197997

10. Ibid.

11. Henry Winter Davis, ?Henry Winter Davis on the Southern Insurrection; And Power of a Republican Government to Suppress It.; Mr. Davis?

Address.? The New York Times, November 27, 1861,

https://www.nytimes.com/1861/11/27/archives/henry-winter-davis-on-the-southern-insurrection-and-power-of-a.html

12. Lerche.

13. Ibid.

14. ?A Niche for the Guarantee Clause.? Harvard Law Review 94, no. 3 (1981): 681?699, www.jstor.org/stable/1340683.

15. Tara L. Grove, ?The Lost History of the Political Question Doctrine,? New York University Law Review 90 (December 2015): 1908-1974,

https://www.nyulawreview.org/wp-content/uploads/2018/08/NYULawReview-90-6-Grove.pdf


27


to Congress.? 16,17 For the time being, the Supreme Court particular case was not justiciable, but not because of the

had determined that the Guarantee Clause was political question doctrine. Indeed, until 1912, Guarantee

nonjusticiable. Then came Colegrove v. Green in 1946, a

case about congressional district apportionment. 18 As in

Pacific States, the Court held that the fairness of

congressional districts (which meaningfully impacts how

valuable an individual?s vote is to the outcome of an

election) was a political question in which the Court could

not intervene, and the Guarantee Clause was again

rendered nonjusticiable. 19

The Case For Justiciability

Clause cases were not decided under the political question

doctrine. As Justice Sandra Day O?Connor wrote in her

opinion of New York v. United States, those cases before

1912 ?addressed the merits on claims founded on the

Guarantee Clause without any suggestion that the claims

were nonjusticiable.? 22

As for Colegrove v. Green, Justice Frankfurter, writing for

the Court, considered the inexpediency and damaged Court

prestige as a reason to deny jurisdiction. 23, 24 While Justice

Frankfurter certainly had reason to worry, his using

After Pacific States and Colegrove, the question of

inexpediency and prestige as legal reasoning is, at best,

justiciability on the Guarantee Clause seemed settled.

ill-judged. Inconvenience is no reason to declare a

However, there has been a great deal of scholarship to the

constitutional provision irrelevant. Then came Baker v.

contrary, stretching all the way back to Luther. Some

Carr in 1961. Chief Justice Earl Warren said that Baker v.

scholars have argued that Luther does not consider the

Carr was the most important decision his Court handed

political question doctrine, which declared a case too

down during his tenure.

political to be adjudicated by the Court, to be applied. In

He ranks Baker above other

landmark cases during his tenure such as Miranda v.

the NYU Law Review, William and Mary Law Professor

Arizona, Loving v. Virginia, Gideon v. Wainwright, and

Tara Leigh Grove asserted that Luther did not declare that

Brown v. Board of Education. Significantly, Baker v. Carr

the case was nonjusticiable, but merely that the President

essentially overturned Colegrove. The central question

had already ?recognized the charter government as the

government of Rhode Island.? 20 answered by Baker was whether the Supreme Court had

This determination, the

jurisdiction over questions of legislative district

Court declared, was as ?authoritative? as the chief

apportionment, which Colegrove appeared to deny.

executive?s recognition of the government of a foreign

The

country.? 21 issue of how legislative districts ought to be apportioned is

By this understanding of Luther, the case is not

central to the gerrymandering conflict, a crucial

ruled as a political question, and the Court left the door

battleground for voters?rights activists. In a 6-2 decision,

open for future application of the Guarantee Clause. That

16 .Grove.

17. Pacific States Telephone & Telegraph v. Oregon. 223 U.S. 118, 133, 136-37 (1912).

18. Colegrove v. Green, 328 U.S. 549 (1946)

19. Ibid, 328 U.S. 573-574.

20. Grove, 1920.

21. Ibid, 1911.

22. New York v. United States, 505 U.S. 144, 184 (1992).

23. Lerche, 859-860.

24. Colegrove, 328 U.S. 549, 553-554.

25. Encyclopaedia Britannica, s.v. ?Baker v. Carr,? last modified May 09, 2017, https://www.britannica.com/event/Baker-v-Carr.

26. Baker v. Carr, 369 U.S. 186 (1962)


28


decision, the case was found to be justiciable in federal Court has no qualms in deciding those cases. 32 In 1992,

court. 27 It was not, the Court said, a nonjusticiable the Court modestly backed away from its position that

political question. In his opinion in the case, Justice the Guarantee Clause is entirely nonjusticiable and

Clark wrote,

announced that at least some claims under the

Guarantee Clause may be justiciable in New York v.

?It is well for this Court to practice self-restraint

United States.

and discipline in constitutional adjudication, but

33 In that case, New York State sued the

U.S. government over a federal radioactive waste

never in its history have those principles received

management law that the State claimed was beyond the

sanction where the national rights of so many have

purview of federal authority. In her opinion, Justice

been so clearly infringed for so long a time.

O?Connor asserted that ?More recently, the Court has

National respect for the courts is more enhanced

suggested that perhaps not all claims under the

through the forthright enforcement of those rights

Guarantee Clause present nonjusticiable political

rather than by rendering them nugatory through

the interposition of subterfuges.? 28

questions... Contemporary commentators have likewise

suggested that courts should address the merits of such

While Baker was not technically a Guarantee Clause

claims, at least in some circumstances.? 34 With this

case, Justice Frankfurter declared that it was a

precedent, if the Supreme Court chooses to accept a

?Guarantee Clause claim masquerading under a

relevant case, the door is open to adjudicate on the

different label.? 29 Further, Framers like James Madison

Guarantee Clause.

understood republicanism to be inseparable from the

The political question doctrine requires courts to set a

protection of minority rights and ?was particularly

case aside and leave it to the other branches to

concerned that states might be controlled by stable

determine the solution. However, the other two

majority coalitions that would systematically impede

minority rights?, as per Federalist No.10. 30,31 branches are made up of elected officials, who by the

State

nature of their position cannot attend to cases about

laws that diminish minority rights, therefore, cannot

voting rights with the impartiality of a court because

exist under a fair republican form of government. The

their job security depends upon the way that their

Guarantee Clause protects basic individual voting

constituents vote. There very well may be a great deal

rights, and the Supreme Court is meant to protect those

of unbiased, dispassionate lawmakers in state

lawful, constitutional rights. What comprises a

legislatures, but a legislature should not be trusted to

?republican form? might not be easily defined, but

always enact nonpartisan and just voting rights laws.

neither is ?equal protection? or ?due process,? yet the

27. Ibid.

28. Baker, 369 U.S. 186, 261-62.

29. Ibid, 297.

30. Erwin Chemerinsky, ?Cases Under the Guarantee Clause Should Be Justiciable,? University of Colorado Law Review 65 (1994): 850-880,

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1696&context=faculty_scholarship.

31. James Madison, ?The Federalist Papers: No. 10,? The Avalon Project, Yale Law School Lillian Goldman Law Library,

https://avalon.law.yale.edu/18th_century/fed10.asp

32. Ibid, 871.

33. New York v. United States, 505 U.S. 144 (1992).

34. Ibid.


29


History proves this point. If the court waives its power to Conclusion: On Waking The Sleeping Giant

judge on voting rights cases, it abdicates its duty as well.

State laws that prohibit certain categories of voters from

The Guarantee Clause cannot be extricated from voting

voting, that magnify the importance of other groups, or

rights because the act of voting is the cornerstone of a

that modify districting to favor one party over another,

republic, therefore it cannot be disregarded as

such as through felon voting restrictions or

nonjusticiable under the political question doctrine. Baker

gerrymandering, are undemocratic and unrepublican.

v. Carr proved this.

Unlike the monarchy that the revolutionaries of 1776

In his ?Farewell Address,? George Washington said, ?the fought against, power in a democracy resides with the

Constitution which at any time exists, till changed by an people. Eleven states still prohibit American citizens who

explicit and authentic act of the whole people, is sacredly have been convicted of felonies from voting for life,

obligatory upon all.? 35 In other words, the Constitution is despite legal efforts to enfranchise discriminated groups,

the supreme law of the land. In Federalist No.43, James such as the Civil Rights Act of 1964. Twenty-one other

Madison wrote of the Guarantee Clause, ?In a confederacy states bar felons from voting for at least some period of

founded on republican principles, and composed of time after they are released from prison. 37 During the 2016

republican members, the superintending government ought elections, 6.1 million Americans were unable to vote for

clearly to possess authority to defend the system against their elected leaders because of felony convictions. 38 To

aristocratic or monarchical innovations.? 36 There is put those statistics into perspective, more individuals were

certainly a case to be made that modern American elites disenfranchised in 2016 than there are voters who currently

might not have royal titles but often try to limit minority live in Montana, Delaware, South Dakota, Alaska, North

rights nonetheless. The Guarantee Clause was written into Dakota, Vermont, and Wyoming combined. As a

the U.S. Constitution not to lie dormant but to affirm an consequence of the disproportionate number of black

avenue for redress if the republican ideals of the Union Americans convicted with felonies, black Americans are

were undermined. By dismissing cases as "political disenfranchised at four times the rate as other racial

questions,? courts diminish themselves beyond what is groups. 39 Sociologists Jeff Manza of Northwestern

fitting in a system of checks and balances. To argue that University and Christopher Uggen of the University of

politics, governance, and the judiciary can be disentangled Minnesota found that the Senate could have been

from each other is ahistorical and illogical. Indeed, if controlled by Democrats throughout the 1990s if felons

voting rights cases are political questions, then the Court could vote, and had disenfranchised felons in Florida been

must, pursuant to the Guarantee Clause, adjudicate on able to vote in 2000, Al Gore ?would certainly have

political questions.

carried the state, and the election.? 40

35. George Washington, ?Washington?s Farewell Address,? The Avalon Project, Yale Law School Lillian Goldman Law Library, 1796.

https://avalon.law.yale.edu/18th_century/washing.asp

36. James Madison, ?The Federalist Papers: No. 45,? The Avalon Project, Yale Law School Lillian Goldman Law Library, January 26, 1788,

https://avalon.law.yale.edu/18th_century/fed45.asp

37. ?Criminal Disenfranchisement Laws Across the United States,? Brennan Center for Justice, May 30, 2019,

www.brennancenter.org/our-work/research-reports/criminal-disenfranchisement-laws-across-united-states .

38. Elena Holodny, ?Millions of American Adults Are Not Allowed to Vote - and They Could Change History,? Business Insider, Insider Inc.,

January 3, 2018, www.businessinsider.com/what-if-felons-could-vote-2017-7 .

39. Jennifer R. Taylor, ?Jim Crow's Lasting Legacy At The Ballot Box,? The Marshall Project,, August 20, 2018,

www.themarshallproject.org/2018/08/20/jim-crow-s-lasting-legacy-at-the-ballot-box .

40. Christopher Uggen and Jeff Manza. ?Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States,?

American Sociological Review 67, no. 6 (2002): 777?803, www.jstor.org/stable/3088970.


30


In 2018, the Supreme Court ruled in Rucho v. Common

Cause that federal courts could not rule on gerrymandering

cases because they were political questions. 41 The case was

argued on the grounds that partisan gerrymandering

violated Article 1, Section 2 of the Constitution, that

citizens should be able to choose their governmental

representatives. 42 Justice Roberts wrote, ?[t]hat seems like

an objection more properly grounded in the Guarantee

Clause of [Article IV, Section 4], which ?guarantee[s] to

every State in [the] Union a Republican Form of

Government.? 43,44 The Constitution is the supreme law of

the land, trumping all else. If the United States is to remain

the global bastion of democracy, liberty, and equality under

the law, then courts must use the entire Constitution to

make their decisions, the Guarantee Clause included.

41. Rucho v. Common Cause, No. 18-422, 588 U.S. ___ (2019).

42. Ford.

43. Ibid.

44. Rucho, 588 U.S. ___ (2019).


31

CONTRACT PRISONS:

A FAILED SOLUTION

Justin Scheer

ABSTRACT

This article argues for the elimination of private prison use in the United States as a response to over incarceration and, as

an alternative, offers solutions relating to criminal justice and sentencing legislation. It begins with a brief history of

private prisons and incarceration trends in the United States over the last half-century, followed by a discussion of the

shortcomings and adverse economic incentives at play in the private prison industry, and concludes with a proposal for

reform of drug and sentencing policy ? Particularly The 1994 Violent Crime and Law Enforcement Act and The

Anti-Drug Abuse Act of 1986 ? to which over-incarceration is largely attributable.


32

At the end of President Obama?s second term, the U.S.

Department of Justice (DOJ) made a monumental decision.

Citing a lack of rehabilitative programs, marginal cost

savings over government operated prisons, security

concerns, poor overall performance and a decreasing

federal inmate population, the Obama administration

decided to phase out incarceration of federal inmates in

private prisons. Sally Yates, former Deputy Attorney

General, explained that ?private prisons served an

important role during a difficult period,? referring to the

massive increase in federal incarceration witnessed

between the early 1980s and early 2010s, but that these

institutions were simply a worse alternative to publicly

operated prisons. 1 But, as was done to many Obama-era

policies, the Trump administration subsequently reversed

this decision, choosing instead to expand the Federal

Bureau of Prisons? (BOP) use of contract prisons. This

essay will argue against President Trump?s decision; rather

than expanding the BOP?s problematic use of private

prisons in order to accomodate large inmate populations,

the root legislative causes of over-incarceration must be

reformed. Private prisons (or contract prisons) are

for-profit correctional facilities operated by private

companies contracted by federal and state governments to

hold federal and state prisoners as they serve their

sentences. While this essay will draw on evidence

pertaining to the BOP?s use of private prisons to

accommodate a growing federal inmate population, the

discussion of private prisons? failures and the perverse


incentives of for-profit incarceration can be extrapolated to

private prisons contracted by state governments as well.

State-contracted and federally-contracted private prisons

are, after all, essentially the same insofar as they

incarcerate prisoners with the presumable objective of

profit maximization.

Federal law, especially the Anti-Drug Abuse Act of 1986,

contributed substantially to the spike in federal inmate

population observed from the end of the 20th century and

into the 21st, prompting the Bureau of Prisons? shift

toward contract prisons in the 1980?s and 1990?s. Although

the federal inmate population and incarceration rate

increased by a factor of nine 2 and six 3 , respectively, from

1980 to 2012, the national crime rate has steadily declined

since the early 1980s. 4 This is evidence of some sort of

change in government practice and policy; people were not

simply committing more federal crimes than usual and

ending up in prison. The U.S. government, through some

level of its federal criminal justice system, acted differently

to affect this spike in federal inmate population and

incarceration rate. As it turns out, these spikes are

generally attributed by researchers to reforms in drug

sentencing and enforcement beginning in the 1980s; drug

offenders represented over one third of the total federal

inmate increase between 1980 and 2010. 5 Moreover, at

least from the late 1990s until 2010, the increase in

average sentence length of federal drug offenders is shown

statistically to have been the ?single greatest contributor to

growth in the federal prison population.? 6 Thus, the

1. Sally? ?Q.? ?Yates,? ??Reducing? ?our? ?Use? ?of? ?Private? ?Prisons,?? ??U.S.? ?Department? ?of? ?Justice?,? ?August? ?18, 2016,?

?https://www.justice.gov/archives/opa/file/886311/download.

2. ??Past? ?Inmate? ?Population? ?Totals,?? ??Federal? ?Bureau? ?of? ?Prisons,? ??December? ?14,? ?2017,

https://www.bop.gov/about/statistics/population_statistics.jsp#old_pops?.

3. ??Federal? ?Prison? ?Incarceration? ?Rate,?? ??Prison? ?Policy? ?Initiative,? ??2014.

https://www.prisonpolicy.org/graphs/US_federal_incrates_1978-2012.html

4. Diane? ?Whitmore? ?Schanzenbach,? ?Megan? ?Mumford,? ?and? ?Ryan? ?Nunn,? ??The? ?Hamilton? ?Project:? ?The Economics? ?of?

?Private? ?Prisons,?? ??Brookings? ?Institution?,? ?October? ?20,? ?2016,

http://www.hamiltonproject.org/papers/the_economics_of_private_prisons.

5. ?Trends? ?in? ?U.S.? ?Corrections,?? ??The? ?Sentencing? ?Project,? ??June,? ?2017,

http://sentencingproject.org/wp-content/uploads/2016/01/Trends-in-US-Corrections.pdf.

6. Barbara? ?Parthasarathy,? ?Kamala? ?Mallik-Kane,? ?and? ?William? ?Adams,? ??Examining? ?Growth? ?in? ?the? ?Federal? ?Prison

Population,? ?1998? ?to? ?2010,?? ??Urban? ?Institute? ?Justice? ?Policy? ?Center,? ??September,? ?2012,

https://www.urban.org/sites/default/files/publication/26311/412720-Examining-Growth-in-the-Federal-Prison-Population--to--.PDF.


33

Anti-Drug Abuse Act of 1986 was one of the primary ? if

not the primary ? causes of the spike in federal

incarceration. In addition to making drug law, law

enforcement, and prosecution guidelines more strict and

punitive, the Anti-Drug Abuse Act established mandatory

minimum sentences for different types of drug offenses,

which resulted in those charged with drug offenses being

incarcerated more often and for longer periods. 7 Further,

the elimination of federal parole under the Sentencing

Reform Act of 1984 made early release much more

difficult to attain. 8 The impact of these reforms was

massive, placing stress on the federal BOP as their

facilities began filling up in the 1980s. The BOP then

turned to contract prisons as a less expensive ? but,

ultimately, unsuccessful ? alternative to increasing public

correctional facility capacity at the end of the 1980s. 9

First in the case against contract prisons is their negligent

management practices, largely a result of cost

minimization. One contract prison company, Corrections

Corporation of America (CCA), now known as CoreCivic,

operates the Lake Erie Correctional Institution in

Conneaut, Ohio. This facility was purchased from the state

of Ohio, making it the first state prison sold to a private

company in the history of the United States. 10 Paul

Reynolds, a corrections officer employed at Lake Erie both

before and after the purchase, recounts the management

transfer process to CCA: ?[prior to the purchase] when we

saw a fight, our job was to go in and break the fight up. We

actually had a fight break-up technique... When CCA came


in, they said ?no touching, you don?t touch the inmates,

you don?t break up the fight?.? 11 Negligence of this sort is

common in the industry. CoreCivic manages both state and

federal prisons, and like the two other prison corporations

contracted by the BOP, Management and Training

Corporation (MTC) and Geo Group, it has shown patterns

of incompetence and negligence in managing its detention

facilities. According to a federal report published by the

Office of the Inspector General under President Obama,

?in a majority of the categories we examined, contract

prisons incurred more safety and security incidents per

capita than comparable BOP institutions.? 12 This included

higher rates of inmate-on-inmate and inmate-on-staff

assaults; higher rates of contraband incidents for

cell-phones, tobacco, and weapons; and higher rates of

guilty verdicts for ?serious inmate discipline charges?

relative to comparable BOP operated prisons. 13 These

operational issues are likely consequences of contract

prisons? cost saving practices, paramount of which is

reduced officer pay: a private prison correctional officer?s

salary is, on average, $7,000 less than that of an officer at a

publicly operated prison. 14 Furthermore, private prisons

tend to be insufficiently staffed; whereas there are, on

average, 4.9 inmates per officer at a public institution,

inmates outnumber officers 6.9 to 1 at private facilities. 15

Thus, correctional officers at contract prisons are less able

and, economically speaking, rewarded less for inmate

supervision. The cost-saving practices themselves,

however, reveal a more fundamental issue: the morality of

7. H.R.5484? -?Anti-Drug?Abuse?Act?of?1986.

8. ??History?of?the?Federal?Parole?System,?? U.S.?Department?of?Justice,?May, 2003,

https://www.justice.gov/sites/default/files/uspc/legacy/2009/10/07/history.pdf.

9. Cody Mason,??Too?Good?to?be?True?Private?Prisons?in?America,??The?Sentencing?Project,?January, 2012,

http://sentencingproject.org/wp-content/uploads/2016/01/Too-Good-to-be-True-Private-Prisons-in-America.pdf.

10. ?Prisons For?Profit,??ACLU?Ohio,? http://www.acluohio.org/prisons-for-profit.

11. Ibid.

12. ?Review?of?the?Federal?Bureau?of?Prisons??Monitoring?of Contract?Prisons,??Office?of?the Inspector General,?August,?2016,?

https://oig.justice.gov/reports/2016/e1606.pdf?.

13. Ibid.

14. Schanzenbach et al.

15. Ibid.


34

profiting from incarceration.

For-profit incarceration, as it exists within the larger U.S.

criminal justice system and political landscape, is driven

by a perverse economic incentive and is, therefore, an

inherently unethical business model. Profiting off of the

incarceration of humans creates a fine ethical line, one

which private prisons have generally been unable to walk.

Private prisons earn more for each inmate they quarter

each day and are, thus, economically interested in

detaining more inmates for longer sentences. In any civil

society, the principal objective of incarceration is to protect

and improve the law-abiding majority, to serve the

common good, whereas private prisons seek a profit first

and foremost. Indeed, a typical argument in favor of

private prisons is premised on the belief in the private

sector?s ability to cost optimize and operate more

?efficiently? than could a government institution. This is

not without its drawbacks. For example, a public

correctional facility would certainly aim to reduce

recidivism because this is in the best interest of society;

ideally, when convicts are released they should not pose a

threat to society, nor should they continue to burden the

criminal justice system. A contract prison, on the other

hand, generally has no economic incentive to minimize

recidivism rates, 16 and as it turns out, prisoners released

from sentences served at private facilities are significantly

(around 10-15%) more likely to be convicted again than

prisoners released from public facilities. 17 Contract prison

companies?financial incentive to incarcerate more people

for longer periods of time goes beyond its own internal

practices; their legislative interests and lobbying efforts

reveal a motivation, in certain respects, antithetical to the


common good. According to a CCA annual report from

2005,

?The demand for our facilities and services could

be adversely affected by the relaxation of

enforcement efforts, leniency in conviction and

sentencing practices or through the

decriminalization of certain activities that are

currently proscribed by our criminal laws. For

instance, any changes with respect to drugs and

controlled substances or illegal immigration could

affect the number of persons arrested, convicted,

and sentenced, thereby potentially reducing

demand for correctional facilities to house

them.? 18

Private prisons ? as represented by CCA ? and their

shareholders are interested in legislation that incarcerates

more people for longer, particularly ?with respect to drugs?

which, as previously discussed, accounts for a massive

portion of the federal inmate population and increase

thereof since the 1980s. This is precisely why in 2015 the

three major private prison corporations spent nearly $2

million lobbying for favorable legislation, namely

legislation that incarcerates more people for longer

sentences. Clearly, the premise of the contract prison

business represents a conflict of interests and,

unsurprisingly, contract prisons tend to pursue of financial

gain via increased and prolonged incarceration of people.

This comes at the obvious expense of the incarcerated, but

also at that of the general public, which receives

ex-convicts from private prisons who are relatively more

likely to recidivate.

16. Ibid.

17. ?How?Private?Prison?Companies?Increase?Recidivism,??In?the?Public?Interest,? June,?2016,

https://www.inthepublicinterest.org/wp-content/uploads/ITPI-Recidivism-ResearchBrief-June2016.pdf.

18. Clint?Smith,? ??Why ?the?U.S.? ?is? ?Right? ?to? ?Move? ?Away? ?from? ?Private?Prisons,???The?New?Yorker,? August? 24,?2016,

https://www.newyorker.com/news/news-desk/why-the-u-s-is-right-to-move-away-from-private-prisons.

19.? ?Trends?in?U.S.?Corrections.??

20. ?Schanzenbach et al.


35

On top of all of this, private prisons are not superior

alternatives to public facilities in terms of cost-efficacy.

Although overall per capita operating expenses of private

prisons are usually 1-3 thousand dollars per year less than

those of public facilities, private prisons tend to only

receive mid to low security inmates, which may warp this

data. Private prisons? cost-efficacy relative to public

prisons is still subject to debate because of this data

obscurity, but what is clear is that if real cost savings do

exist, they are not large, according to Department of

Justice and BOP data: ?moving federal prisoners into

private prisons might not help to control the rising costs of

the federal prison system.? These marginal cost savings

cannot excuse or justify the grossly inadequate

management and ethical violations previously discussed.

And yet, the Trump Administration believes otherwise. In

an order to rescind the Obama Administration

memorandum to discontinue the use of contract prisons,

former Attorney General Jeff Sessions wrote that said

memorandum ?impaired the Bureau's ability to meet the

future needs of the federal correctional system.? It is now

evident that ?future needs? referred to the detention

capacity required to accommodate Trump?s increased

boarder security measures. Indeed, detained undocumented

immigrants awaiting trial constitute a large portion of the

private prison population today. One may critique the prior

argument by noting that many of the detained

undocumented immigrants are subsequently deported, so

the argument pertaining to recidvism is evidently moot

with respect to undocumented immigrants since


?recidivism?, as used in this essay, has no practical

application in the context of unlawful immigration. While

this is true, I maintain that private prisons still detain many

inmates who are citizens and to whom the recidivism

argument applies. Further, state private prisons, which

detain those convicted of state crimes ? which excludes

unlawful entry into the United States, a federal crime ?

exist and hold a large population of said prisoners. Finally,

I would rebut that, while recidivism may not be pertinent

per se, the implication of private prisons detaining

undocumented immigrants is worrisome. We must ask;

should U.S. boarder policy ? purportedly a matter of

national and economic security ? be influenced by a

private prison lobby evidently interested in incarceration

of immigrants for profit? While this question is outside of

the scope of this essay, it is a crucial one to consider. That

said, the remainder of this essay will discuss policy

solutions to address the problem of private prisons and the

incarceration explosion that gave rise to the for-profit

prison industry in the first place. The solution to the former

is rather simple: eliminate private prisons. However, to

comprehensively address the latter is far too large a task

for the purposes of this essay; over incarceration in

America is the product of incredibly complex systems and

social structures largely outside of the direct influence of

criminal justice policy ? many of which originate in race

and racial constructs ? deeply entrenched in the American

socio-political landscape. Instead, this essay will focus on

specific policy reform within the sphere of criminal justice

and sentencing that would help mitigate over incarceration.

21. ?Review? of? the?Federal?Bureau?of?Prisons??Monitoring?of?Contract?Prisons.?

22. ?Nathan?James,??The?Federal ?Prison?Population?Buildup:?Options?for?Congress,?? Congressional?Research?Service, May?20, 2016.?

??https://fas.org/sgp/crs/misc/R42937.pdf?.

23. Jefferson? ?Sessions,? ??Rescission? ?of? ?Memorandum? ?on? ?Use? ?of? ?Private? ?Prisons,?? ?U.S.? ?Department? ?of? ?Justice,?

?February 21,? ?2017, https://www.justice.gov/oip/foia-library/attorney_general_memorandum_advising_the_federal_bureau_of_prisons_that

_the_department_will_continue_to_use_private_prisons.pdf/download.

24. Clyde Haberman, ?For Private Prisons, Detaining Immigrants is Big Business,? The New York Times, October 1, 2018,

https://www.nytimes.com/2018/10/01/us/prisons-immigration-detention.html.

25.Ibid.

26. ?Private Prisons in the United States,? The Sentencing Project, October 24, 2019,

https://www.sentencingproject.org/publications/private-prisons-united-states/.


36

Elimination of private prisons would help reverse the

explosion in federal incarceration that began in the 1980?s.

First, it is important to note that the federal inmate

population has been on a steady decline since 2013, having

decreased by over 22%. 27 Elimination of private prisons,

and thus elimination of the inmate demand they create,

would in itself theoretically decrease the total inmate

population over time. Without private prisons, there would

be no $2 million per year private prison lobby pushing

lawmakers to maintain strict enforcement and sentencing

laws. 28 More importantly, if not kept in contract prisons,

inmates are far less likely to be convicted of crimes in the

future; a lower overall recidivism rate translates to a

decreased incarceration rate and inmate population. 29

Reform of three sentencing laws/rules ? the Sentencing

Reform Act of 1984, the 1994 Violent Crime and Law

Enforcement Act (or ?Crime Act?), and ?safety valve?

provisions ? would shrink the U.S. inmate population

considerably. On the federal level, the Sentencing Reform

Act of 1984 abolished federal parole in order to achieve

?truth-in-sentencing? (i.e. making sure convicts serve a

greater portion of their original sentence before release),

making it much more difficult to earn a reduced

sentence. 30 In a similar vein, the Crime Act created the

Violent Offender and Truth-in-Sentencing Incentive Grants

Program, which awards federal grants to states that require

certain violent offenders to serve no less than 85% of their

sentence or otherwise demonstrate that, on average, their

state prisoners serve at least 85% of their sentence. 31

Relaxation of these truth-in-sentencing provisions and

incentive programs would afford greater discretion to

individual parole boards, granting them the authority to


modify sentences appropriately according to the unique

circumstances of each case and inmate, thus making it

easier to circumvent mandatory minimum sentences and

decrease inmate population. Next, expansion of ?safety

valve? provisions for low level offenders, as proposed in a

Congressional Research Service report, would allow

?inmates to earn additional good time credit as a part of a

risk and needs assessment system,... reducing mandatory

minimum penalties for some offenses.? 32 Again, such a

reform would allow for case-by-case evaluation of

convicts and avoidance of mandatory minimum sentencing

guidelines, helping decrease the overall inmate population.

These reforms would all, more or less, allow exceptions to

be made for specific cases so that certain offenders are not

unfairly subjected to one-size-fits-all mandatory

sentencing guidelines. Even more effective than these

reforms, however, would be direct reform or repeal of

those mandatory minimums at the root of the

over-incarceration issue, many of which were established

by the Anti-Drug Abuse Act of 1986.

Reform of the Anti-Drug Abuse Act of 1986 and

replacement of punitive measures with rehabilitative ones

would have a profound impact on the inmate population.

As previously described, the Anti-Drug Abuse Act of 1986

established harsh mandatory minimum sentencing rules for

certain drug convictions and contributed significantly to

the prison population boom. As this act was a product of

rushed lawmaking in response to a ?national sense of

urgency? and involved little legislative deliberation, no

committee hearings, and no congressional reports

produced, its contents deserve close scrutiny and

reconsideration today. 33

27. ??Past? ?Inmate? ?Population? ?Totals.??

28. ?Schanzenbach et al.

29. ??How? ?Private? ?Prison? ?Companies? ?Increase? ?Recidivism.?

30. Steve Y. Koh and Kate Stith, "The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines," 28 Wake

Forest Law Review 223 (1993).

31.?Truth in Sentencing Law and Legal Definition,? USLegal, accessed April 5, 2020, https://definitions.uslegal.com/t/truth-in-sentencing/.

32. James.

33. ?Report to?the?Congress: Impact of?the?Fair?Sentencing?Act?of?2010,??United?States?Sentencing? Commission, August,? 2015,

https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/201507_RtC_Fair- Sentencing-Act.pdf?.


37

For instance, the infamous ?100-to-1? drug quantity ratio

established in this Act, which created a disparity in drug

sentencing such that two drastically different quantities of

the same drug, cocaine, were required to trigger the same

mandatory minimum sentence depending on whether the

cocaine was in solid or powder form, ought to be

eliminated. 34 The 2010 Fair Sentencing act made

solid-to-powder ratio less extreme though still quite

disproportionate, now standing at 18-to-1. 35 However, the

Anti-Drug Abuse Act and its mandatory minimum

sentence provisions, the most significant among ?war on

drug? legislation, remains mostly intact and still resembles

the original version of the law passed in 1986. This is

problematic since this legislation, according to UC

Berkeley Law professor and Criminal Justice expert David

Onek, is responsible for the ?huge increase in low level

drug offenders? serving time in federal prison. 36 Rather

than placing drug addicts, a significant portion of drug

offenders, into the criminal justice system as mandated by

the Anti-Drug Abuse Act?s harsh mandatory minimums,

low level drug-addicted offenders would be better dealt

with through medical treatment of their addictions.

According to a report by the U.S. Department of Health

and Human Services, ?drug abuse and crime continue to be

linked; and although addiction is recognized as a chronic,

relapsing disease, offenders are still not getting the

treatment they need.? It goes on to report that drug

treatment for offenders is a ?cost-effective? option that

would ?help end the vicious cycle of... criminal

recidivism,? which would certainly alleviate the federal


prison overcrowding issue at hand. 37 If 1) greater authority

were afforded to judges and parole boards to customize

reasonable sentences on a case-by-case basis rather than be

forced to hand out lengthy, inappropriate sentences

required by Anti-Drug Abuse Act mandatory minimums, 38

and if 2) the pattern of incarceration of drug addicts and

abusers required by the Anti-Drug Abuse Act were

replaced with a rehabilitative, drug-treatment approach,

criminal recidivism and the federal inmate population

would decline considerably. 39

These legislative reforms, in tandem with the elimination

of for-profit prisons on the federal and state level, would

begin to solve the problem of over incarceration in the

United States, who?s incarceration rate is the highest in the

world. If not for the elimination of private prison use, there

should be, at the very least, increased private prison

transparency. At present, various prison records and

information that government-managed facilities must

publish can be kept private by private prison companies.

Greater transparency would allow for more comprehensive

public scrutiny of private prison operations, thereby

deterring ethics violations and management issues. 40 This

initiative has already been introduced in congress as H.R.

1980: Private Prison Information Act of 2017, passage of

which would represent a good first step toward an

improved prison system, though marginal (at best) in the

grand scheme of mass incarceration and the continued use

of private prisons.

34. Deborah?J.?Vagins?and?Jesselyn?McCurdy,??Cracks?in?the?System:?Twenty?Years?of?the?Unjust?Federal Crack Cocaine?Law,?? ACLU,?

October,?2006,?https://www.aclu.org/files/assets/cracksinsystem_20061025.pdf.

35. ??Report?to?the?Congress:?Impact?of?the?Fair?Sentencing?Act?of?2010.??

36. ?David?Onek.?Interviewed?by?Justin?Scheer.?February?14,?2017.

37. ?Addiction?and?the?Criminal?Justice?System,??U.S.?Department?of?Health?and?Human?Services,

https://report.nih.gov/NIHfactsheets/ViewFactSheet.aspx?csid=22.

38. Parthasarathy et al.

39. ??Addiction?and?the?Criminal?Justice?System.?? ??

40.? ??H.R.?1980:?Private?Prison?Information?Act?of?2017,??govtrack,?April 6,?2017, https://www.govtrack.us/congress/bills/115/hr1980.


38

RECONSIDERING YOUNGSTOWN:

WHEN THE SUPREME COURT?S

FRAMEWORK FOR EVALUATING

PRESIDENTIAL POWER ISN?T

ENOUGH

Krista Stapleford

ABSTRACT

In this essay, I argue that the constitutional values invoked in the Supreme Court's 1952 decision in Youngstown Sheet &

Tube Co. v. Sawyer regarding separation of power are as relevant today as they were then. But in the wake of the National

Emergencies Act and President Trump's attempts to use the act to subvert Congress? will, the decision provides an

ineffective framework for actually evaluating and reigning in an abuse of power such as this one. Nevertheless, imbued in

the Youngstown decision? and in the now famous framework for evaluating presidential power articulated by Justice

Jackson in his concurrence? are constitutional values that are inherent to our democracy and vital to its success. These

values demand that we, as the electorate, recognize when they are being undermined and act to hold a President who

violates the norms and expectations of the office accountable at the ballot box.


39

Reconsidering Youngstown: When the Supreme Court?s Framework for Evaluating Presidential Power Isn?t Enough

In its 1952 decision in Youngstown Sheet & Tube Co. v.

Sawyer, the Supreme Court famously limited the power of

the President to act beyond his or her Article II powers

without Congressional approval and reaffirmed the notion

of checks and balances that is so inherent to our

Constitution. In doing so, the Court? and in particular,

must ?stem either from an act of Congress or from the

Constitution itself.? 2 In doing so, the Court emphasized the

delineations of power between the two branches,

highlighting Congress?role as a law-making body and the

President?s role as merely an executor of those laws. In

Justice Jackson?s concurrence, he provided a three-part

Justice Robert H. Jackson, in his concurring framework to help distinguish how presidential powers

opinion? erected a standard and framework for evaluating

Presidential power that many people view as still relevant

today. The National Emergencies Act of 1976, however,

has since provided sweeping emergency powers to the

president that are at odds with the constitutional values

invoked in Youngstown. In this essay, I will argue that

Youngstown problematically lends itself to loose and

differing interpretations of the limits of executive

authority, leaving the case substantively ineffective in

serving as a framework to evaluate potential abuses of

presidential power. Nevertheless, the ruling, which harkens

back to the fundamental constitutional doctrine of

separation of powers, has important symbolic value that is

still highly relevant.

?fluctuate depending upon their disjunction or conjunction

with those in Congress.? 3 Jackson outlined that the

president?s power is at its highest when the action he takes

is implicitly or expressly authorized by Congress and is at

its lowest when he acts against Congress? explicit or

implicit will. Finally, he described a ?zone of twilight? in

which the President acts ?in absence of a congressional

grant or denial of authority,? 4 at which point the

distribution of authority is uncertain. While many people

view this framework as an incredibly powerful precedent

for evaluating presidential power, it actually provides very

little substantive guidance on how future Courts should

decide when to invalidate future instances of questionable

executive action.

Though Youngstown is commonly viewed as the Court?s

most seminal precedent on evaluating the limits of

presidential power, a closer look at the Court?s majority

opinion and Justice Jackson?s concurrence elucidates the

reality that the ruling provides few concrete guidelines to

delineate the boundary of power between the executive and

the legislature when it is most unclear. Youngstown was

argued before the Supreme Court after President Truman

issued an executive order to seize the nation?s steel mills to

ensure production, necessary to the Korean War effort,

would continue despite labor strikes. Truman justified his

actions by citing an ?inherent power? to ensure the safety

and well-being of a nation at war. 1 The court found his

actions unconstitutional, arguing that the president?s power

Most troublingly, the justices ruling in the majority do not

even seem to agree on the specific scope of the president?s

authority. In the majority opinion written by Justice Black,

the Court clearly limits presidential powers to only those

specifically enumerated in the Constitution or explicitly

granted to the president by the legislature. In other words,

Black?s opinion suggests the Court is supporting a narrow

interpretation of presidential power here ? one in which

the president can only act in response to specific

authorities. Nevertheless, Justice Jackson?s famous

concurrence suggests otherwise. Jackson argues that

presidential powers may indeed fall into a ?zone of

twilight? where Congress and the president ?may have

concurrent authority, or in which its distribution is

1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 584 (1952)

2. Ibid., 343 U.S. 585

3. Ibid., 343 U.S. 635

4. Ibid., 343 U.S. 637


40


uncertain.? 5 In doing so, Jackson suggests instead that the Ultimately, the ruling?s insufficient and non-substantive

president may have the legal authority to act with implied, framework for reigning in presidential authority is most

rather than explicit powers, but he does not seek to define evident when evaluated against the National Emergencies

these powers or further limit their interpretation. This Act (NEA), particularly as it is used today. In particular,

inherent conflict in the Court?s majority ruling thus leaves though the framework of the NEA has allowed the current

us with little substantive way to evaluate the president?s president to act in a way that violates the unambiguous

authority to act in cases where there are indeed disputes will of Congress, as will be discussed further below, the

between him and Congress.

authority granted to the president by the NEA is perfectly

in line with the limits on presidential power that

Furthermore, Justice Jackson?s three part framework

Youngstown enumerates.

provides the least guidance where it is needed most. By

including a ?zone of twilight,? Jackson admits that there When the National Emergencies Act was first passed more

will be situations in which Congress is silent on the issue, than 20 years following the Youngstown decision, it was

and/or the distribution of power between the two branches written in response to concerns about the scope of

is unclear. He also implies that, by its very nature, this presidential emergency powers and the frequency of their

zone is most difficult to evaluate, yet he makes no attempt use. Though it formally handed emergency declaration

to establish a useful rubric by which future courts could authority to the president, Congress also made sure to give

attempt to do so. Indeed, he even goes so far as to say that, itself the power to terminate an emergency provision if

in cases such as these, the president?s use of implied both houses reached a simple majority to adopt concurrent

authority could be evaluated as legal, but not based on any resolutions supporting such a move. 8 This fail-safe

framework of theoretical law. Rather, the authority would mechanism was not solely a just use of Congress?authority

rest on ?the imperative of events.? 6 Seeing as situations in to ?make all laws which shall be necessary and proper? for

which the distribution of power is constitutionally executing its powers. 9 It was also a move that was

uncertain would leave the most room for a potential abuse perfectly in line with the original intent of the Framers,

of power, it seems imperative that such a framework would who clearly sought to create a system that could restrain an

provide ample guidelines for evaluating the appropriate executive who believed he had unrestrained authority to

distribution of power in this realm. Nevertheless, Jackson act as he pleased. When the Supreme Court ruled in 1983

remains ambiguous about the Court?s role in intervening in in INS v. Chadha that any act of Congress that would

such situations where the power delineation between the modify existing law? including reversal of presidential

two branches is most unclear; this ambiguity is particularly action that was legally sanctioned ? was a lawmaking

surprising given his clear concern about the potential function that required presentation to the president for

?grave dangers? that could arise in cases of unfettered consent or veto, the NEA was amended. 10 Now, in its

executive action. 7

present form, in order for the Congress to terminate an

5. Youngstown, 343 U.S. 637

6. Ibid., 343 U.S. 637

7. Ibid., 343 U.S. 634

8. Nicholas Fandos, ?Answers to 4 Key Questions About Trump's Declaration of an Emergency.? New York Times (New York, NY), February 15,

2019, https://www.nytimes.com/2019/02/14/us/politics/trump-congress-national-emergency.html.

9. U.S. Constitution, art. 1, sec. 8, cl. 18.

10. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983)


41


emergency, it must issue a joint resolution subject to Yet, Youngstown provides no insightful guidelines on how

presidential approval or veto. In essence, this rendered the to go about resolving this practical paradox found in the

fail-safe mechanism built into the original version of the NEA?s current structure. If anything, a strictly textual

Act completely void. Thus, while the Act originally served interpretation of the Court?s ruling leads to the conclusion

to narrow executive power, its current form substantially that Trump?s use of power in the described situation is a

empowers the president to use his emergency powers at constitutionally justified use of the executive office.

will.

Firstly, the Court, as stated in Black?s opinion for the

majority, held that the president?s powers must be granted

President Trump?s use of the emergency declaration in an

to him either through an act of Congress or from the

attempt to gain funding for a southern border wall is likely

Constitution itself. While the NEA, in its original form,

the best example of the breadth of power that the NEA

sought to limit the executive use of emergency powers by

now affords a president? even when Congress has

providing a clearly outlined mechanism for congressional

explicitly denied the president these powers. When

oversight of these decisions, it also was an act of Congress

President Truman declared a national emergency to seize

that formally bestowed such a power on the president. In

the steel mills, he did so after Congress had already

other words, the NEA created a formal mechanism to

debated and decided against granting the president the

transform an implied presidential power into an explicitly

ability to do so when drafting the Taft-Hartley Act. In

authorized one, leaving the president?s power in this realm

other words, Congress had already considered authorizing

unambiguously constitutional. Secondly, since the National

the president this power and decided against it, meaning

Emergencies Act serves as an explicit granting of power to

the president?s power was at its ?lowest ebb? in Justice

the president from the legislature, it places the president?s

Jackson?s framework; it was unambiguously clear that the

executive did not have the authority to act. 11 emergency powers squarely into the realm of power that

This, in part,

Jackson?s framework defines as being of the highest

was what supported the Youngstown ruling. Similarly,

legitimacy. Before the National Emergencies Act was

when President Trump declared a national emergency in

created, whenever the executive invoked a declaration of

February 2019 to gain access to funds for his border wall,

emergency, the executive?s authority to do so was merely

he did so after Congress had previously debated and

assumed; the distribution of power between the president

rejected the idea of appropriating funds for this objective

in the budget. 12 and Congress was uncertain, landing squarely in the realm

If one were to apply the Youngstown

that Jackson would eventually refer to as the ?zone of

decision to his actions, one could convincingly conclude

twilight.? In passing the NEA, Congress reclassified this

they were unconstitutional: they violated the expressed

power; it now falls cleanly in line with Jackson?s

will of Congress, and since the power of the purse is

description of presidential authority that is at its maximum.

granted solely to the legislature, they were not grounded in

Jackson developed this framework to provide a legitimate

any constitutionally-granted executive powers.

metric by which to ?challenge? potential overreaches of

Nevertheless, Trump?s actions were justified under the

presidential authority, and the NEA, viewed on a purely

NEA since its stipulations grant the president the ability to

textual basis, places the president?s powers at their

move forward with a declaration of national emergency, no

maximum legitimacy.

matter the will of Congress.

11. Youngstown, 343 U.S. 637

12. Baker, Peter, and Jim Tankersley. ?Defying Congress, Trump Plans to Renew Fight for Border Wall Funding.? New York Times (New York, NY),

March 10, 2019, www.nytimes.com/2019/03/10/business/economy/trump-budget-wall.html.


42


This textual-based interpretation of Youngstown and the Court?s decision rests.

ways in which it legitimizes the National Emergencies Act

Inherent to the Court?s ruling in Youngstown is a keen

can only be reasonably reached because of the weakness

deference to the framework of our constitution and its

and limited applicability of the Youngstown ruling. Indeed,

explicit intent to vest authority in more than just one entity.

it provides no guidance on how to truly evaluate the

Indeed, in choosing to narrow the scope of executive

legitimacy of presidential power in a situation such as this

authority rather than affirm a view of plenary presidential

one, where the president?s authority stems from an act of

power, the Court harkened back to the very notion that

Congress while simultaneously violating its explicitly

motivated the Framers to create the separation of powers

articulated will. In this way, the NEA does little to overrule

structure that we have today: fear of an absolute monarch.

the Youngstown holding, since it has almost no specific

As Justice Jackson notes in his concurring opinion, the

applicability to the issues of power that the Act has

Framers were most impacted by the tyranny of George III,

engendered. The inherent contradiction present in the

whose actions provided significant motivation for the

National Emergencies Act? which has allowed President

debates around executive power that occurred prior to the

Trump to declare emergency powers in pursuit of funds for

ratification and that still influence our thoughts on

a purpose the Congress has already expressly rejected? is

presidential power today. In their designing of the new

a sober reminder that we may need to rely on more than

republic, the Framers? relied heavily on political

just judicial review and the normal legislative process to

philosopher Montesquieu?s theories on creating a

ensure the Framer?s true intent for the executive office is

government structure that would effectively ensure, rather

realized.

than encroach on, the political liberties of its

There is more to the Youngstown holding than just an constituents. 13 Montesquieu, in his work The Spirit of the

explicit, narrowly-tailored reading of the decision?s Laws writes: ?constant experience shows us that every

implications for presidential power. The NEA, in its man invested with power is apt to abuse it? [thus] it is

current form, violates the Framers?intent, which they made necessary from the very nature of things that power should

clear in their creation of an executive branch with be a check to power.? 14 Indeed, in Federalist no. 51,

explicitly defined authority and purpose, separate from and Madison calls for ?the proper checks and balances between

checked by both the judiciary and the legislature. This the different departments? by arguing that it will be

notion, fundamental to the Constitution and our entire ?essential to the preservation of liberty,? since men are not

conception of our democratic republic, is indeed still angels. 15 Even Alexander Hamilton, who was explicit

grounded symbolically in the Youngstown decision, no about his desire for a strong, unitary executive with ample

matter how weak the framework it provides may be. So power and authority to execute the laws, supported the

while the NEA may seem in line with the explicit ruling in notion of a ?numerous legislature? to serve as a check on

Youngstown, it violates the spirit of the court?s ruling, the executive?s power. 16 Originalist thinkers would likely

which is important and powerful to consider, given the key argue that, since the mechanisms outlawed in the NEA

constitutional tenets of separation of powers on which the adhere to the explicit aspects of Articles I and II of the

13. Hilary Bok, ?Baron De Montesquieu, Charles-Louis De Secondat,? Stanford Encyclopedia of Philosophy. Stanford University, April 2, 2014,

https://plato.stanford.edu/entries/montesquieu.

14. Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, Book 11 (London: Printed for J. Collingwood, 1823),

http://press-pubs.uchicago.edu/founders/documents/v1ch17s9.html

15. James Madison, Federalist No.51, in The Federalist Papers (New York: Race Point Publishing, 2017), 272.

16. Alexander Hamilton, Federalist No.70, in The Federalist Papers (New York: Race Point Publishing, 2017), 373.


43


Constitution that grant law-making authority to Congress ensuring the president does not wield unfettered power in

and law-executing authority to the Executive, the NEA is violation of the Constitution?s clear intent to ensure

both constitutional and in line with the explicit ruling of balance of powers, where can we go from here? The

Youngstown. Yet, founding documents like the Federalist Constitution has long remained an important guide for

Papers are helpful in elucidating the fact that the presidents to make certain that they are living up to the

Constitution was intended to protect against abuses of true duties of the office, but the high expectations that

power? the same abuses of power the majority Court in accompany the office are not simply imbued in the text of

Youngstown was worried about? that the NEA, in its the document. Rather, they are embodied in a long history

current form, enables the president to commit.

of past executives who have created a collective set of

norms around the presidency. These norms compel the

The manner in which the NEA has been exploited by the

executive, no matter who he or she is, to place the dignity

current president to vest ultimate and final authority in

of the office, as well as the duty to defend the Constitution

himself is a daunting reminder of the symbolic value and

and its values, above all personal aims. These

modern day importance of the Youngstown decision. It is

norms? which call for the president to be a person of

clear that the Framers of the Constitution reflected very

higher character who respects the intent of the

carefully on the kind of governing structure they wanted to

Constitution?s creation of shared power between three

create to ensure the liberties of the people were never

separate branches? were first articulated in George

infringed on. They placed the power of the purse in the

Washington?s second inaugural address, when he called for

hands of the legislature for a reason, just as they placed the

the Congress to subject him to ?upbraidings? should he fail

authority to execute the laws in the hands of the executive

to meet the high standards of the office.

for a reason. Thanks to the Federalist Papers, which

17 For our system

of separation of powers to work as it was intended during

preserved the Framers? key thoughts on the system they

our nation?s founding, the American electorate is obligated

were creating, we know their purpose was, in part, to

to consider the character of the president they are electing.

ensure power was not solely vested in one person capable

Now more than ever, as presidents in the modern era

of abusing it. As it is currently being used, the NEA not

continue to push the limits on their constitutionally-granted

only grants more power to the president than Congress

powers, as Trump has done with the National Emergencies

intended. It also grants more power to the president than

Act, it is imperative that the American people hold their

the Framers of the Constitution intended: it has enabled the

president to the norms set before him? norms that

president?s actions to undermine legislative powers

prioritize respecting the intent of the Constitution and

explicitly enumerated in the Constitution. So while it is

preserving the dignity of the office.

clear that Youngstown does not provide an adequate

framework for the Court to evaluate the true extent of the

president?s authority under the NEA in a situation such as

the current southern border wall funding stand-off, the

decision nevertheless has immense symbolic insight, given

the clear emphasis the decision places on the need to

maintain checks on potential presidential abuses of power.

If Youngstown provides an ineffectual framework for

17. George Washington. ?Second Inaugural Address of George Washington.? Avalon Project, Yale Law, March 4c 1793,

avalon.law.yale.edu/18th_century/wash2.asp.


44

THE COURT?S EXPANDED

COMMERCE CLAUSE: A

MISGUIDED MECHANISM OF

CHANGE

Jordan A. Kei-Rahn

ABSTRACT

The present text explores and challenges the judicial origins of the United States Congress?expanded Commerce Clause

powers. Beginning in the late 1930s, The U.S. Supreme Court began justifying federal legislative action on the basis that

the targeted behavior could ?substantially affect interstate commerce.? This text focuses on the evolution of the

?substantial effects? test and its epitomization in Wickard v. Filburn (1942), a seemingly benign case regarding a farmer?s

violation of the Agricultural Adjustment Act of 1933. Wickard enabled the largest engrossment of federal power in the

20th century by allowing Congress to justify regulation on the basis of a theoretical impact on the national marketplace.

Indeed, Congress emerged from the Court?s decision with a broadened scope of authority, including welfare regulation

previously reserved for state legislatures, thus laying the ground for not only New Deal programs, but even the 1960s civil

rights acts. This text will argue that the Court misguidedly delegated authority to the legislative branch, minimizing

standards of judicial review, thereby threatening the system of inter-compartmental checks and balances. Far from arguing

that the New Deal and the Civil Rights Act of 1964 were unconstitutional, this text will show that the government should

have relied on other mechanisms of social change, including constitutional amendments and the Equal Protection Clause,

rather than overly broadening the Commerce Clause.


45

The Court?s Expanded Commerce Clause: A Misguided Mechanism of Change

In the 21st century, the United States Federal Government such ends. Indeed, the Court?s rejection of economic

permeates into almost every layer of political discourse, realities in Wickard and the government?s failure to appeal

either as a primary actor, source of funding, regulatory to other doctrines and protocols place the legacy of

body, or tax-collector. Regardless of one?s stance on the acclaimed legislation on foundations of illegitimate

merits or legalities of centralized government, few precedent.

Americans fail to acknowledge the expansive power the

During the early 20th century, the Supreme Court served as

federal government currently holds. However, the

a sentinel for property and contract rights, only later

omnipresence of the United States government both in

supporting New Deal legislation as a result of presidential

domestic and international affairs remains a relatively

coercion. In Lochner v. New York (1905), the Supreme

modern phenomenon. Indeed, the original government

Court held that the State of New York could not establish

under the Articles of Confederation served largely as a

maximum working hours within the baking industry,

symbol of unity without any real power to craft or enforce

despite potential health risks that overexposure to airborne

national law. Even after the Constitution?s ratification in

flour could cause to the workers? lungs. 3 This decision

1789 granted Congress the power to tax, raise an army, and

ushered in an era in which government could not interfere

regulate interstate commerce, statesmen such as Alexander

with an individual?s contracts with private industry. Courts

Hamilton and Thomas Jefferson quarreled over

in the ?Lochner Era? soon evaluated federal laws along the

enumerated and implied powers under the ?necessary and

same guidelines, employing an originalist interpretation of

proper? doctrine. 1 For over 150 years, and to a lesser

Article I, Section 8 of the U.S. Constitution: ?to regulate

extent in the present, this debate also preoccupied the

Commerce with foreign Nations, and among the several

Supreme Court, which fluctuated between allowing

states,? (emphasis added). 4 Exemplifying strict textual

government expansion and limiting intrusions into

adherence, the Court held in Hammer v. Dagenhart (1918)

personal economic rights. These vacillations came to a

that the Commerce Clause did not allow Congress to

halting stop in the face of Franklin Delano Roosevelt?s

regulate child labor because only the product of such labor

New Deal reformation. 2 The Supreme Court?s decision to

moved between states. Therefore, child labor, as a matter

expand the Commerce Clause in Wickard v. Filburn,

of intrastate commerce, remained outside the purview of

allowing for pervasive regulation of the general welfare,

the federal government. 5 This decision stood as a barrier

represents the largest enrichment of federal power since

to F.D.R.?s New Deal, which emphasized the moral

the nation?s inception. However, while the New Deal

necessity of national regulations on labor, wages, working

produced beneficial and necessary results, the Court

conditions, and price controls, all of which dealt with

improperly broadened the Commerce Clause to achieve

1. U.S. Constitution, art. 1, § 8.

This doctrine, also known as the ?Elastic Clause,? refers to Congress?ability to pass laws that are incidentally related and ?necessary and proper? to

the execution of their enumerated legislative powers. A more expansive discussion of this clause may be found in McCulloch v. Maryland, 17 U.S. (4

Wheat.) 316 (1819).

2. Ira Katznelson, Fear Itself: the New Deal and the Origins of Our Time, (New York: Liveright, 2014).

The above referenced source serves as a guide for readers interested in learning more about the particularities of the New Deal, as the scope of this

paper does not allow for a proper discussion of Roosevelt?s programs.

3. Lochner v. New York, 198 U.S. 45 (1905).

4. U.S. Constitution, art. 1, § 8.

5. Hammer v. Dagenhart, 247 U.S. 251 (1918).


46


manufacturers often located in a single state. Indeed, the

Supreme Court unanimously declared one of F.D.R.?s first

labor policies, the Live Poultry Code, unconstitutional

to enact the National Labor Relations Act (NLRA), and

thus affirmed the NLRB?s decision that Jones & Laughlin

Steel Corp. violated the act when refusing to hire

using the same reasoning contained in Dagenhart: ?the unionized workers. Instead of directly contradicting

fact that there may be an indirect effect upon interstate

commerce does not subject the parties to federal statute,

not withstanding its broad provisions.? 6 Although this

Dagenhart and insisting that employment directly

comprised interstate commerce, the majority, under Chief

Justice Hughes, declared that the Commerce Clause

majority opinion in A.L.A. Schechter Poultry v. United included activities affecting interstate commerce:

States (1937) seemed to recover the States? power to

govern intrastate commerce weakened in Lochner, the

limits on federal power remained absolute. Ironically,

however, this seemingly final ruling on the Commerce

Clause directly spurred the cause of the Court?s complete

reverse less than a year later. F.D.R., furious at the

Schechter decision, threatened to pack the court with six

new justices, one for every sitting justice over the age of

seventy. 7 Although a blatant disruption to the separation

of powers, Roosevelt?s threat succeeded in changing the

Court?s interpretation of the Commerce Clause in National

Labor Relations Board v. Jones & Laughlin Steel Corp.

(1937). This ?switch in time that saved nine? enabled a

?Although activities may be intrastate... if they have such a

close and substantial relation to interstate commerce that

their control is essential or appropriate to protect that

commerce... Congress cannot be denied the power to

exercise that control.? 10 The Court reaffirmed this logic,

and introduced the exact working ?substantial effect on

interstate commerce? in U.S. v. Darby, a similar case to

NLRB involving a violation of the Fair Labor Standards

Act. 11 This original ?substantial effects? test serves the

important purpose of enabling regulation of the entire flow

of commerce, from raw goods to end product. If the

Commerce Clause only reflected a strict originalist sense

of goods flowing across boundaries, Congress could enact

cascade of legislation based on the newly accepted no uniform standards regarding such an item?s

doctrine of ?substantial effects on interstate commerce.? 8,9 manufacture or final sale. Indeed, pure interstate

commerce, distribution, and shipment comprise a small

The Court?s initial development of the ?substantial effects?

fraction of a good?s life-cycle. However, the Court?s actual

test in NLRB and United States v. Darby (1941) corrected

application of the ?substantial effects? test increases

for the failings of the Lochner Era, however, eventually

congressional power carelessly, giving Congress broad

allowed for congressional overreach in private,

discretion to determine what activities constitute a

non-commercial enterprise. In NLRB, the Court held that

?substantial? impact on interstate commerce. In NLRB, the

Congress, under its Commerce Clause power, had the right

Court all but decided that Congress had the power to enact

6. A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 547 (1935).

In Schechter, a poultry corporation violated the National Industry Recovery Act for a variety of reasons including failure to comply with maximum

work hours. While the government argued that this constituted unfair competition in the national market, however the Court focused on the fact that

Schechter Poultry operated locally within only New York State.

7. Corey L. Brettschneider. Governmental Powers in Constitutional Law and American Democracy, (New York: Wolters Kluwer Law & Business,

2014), 175-176.

8. Ibid., 177.

9. United States v. Darby Lumber Co., 312 U.S. 119 (1941).

10. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 37 (1937).

11. Darby, 312 U.S. 100 (1941).


47


the NLRA because it specifically targeted industries

?affecting commerce?: ?It [the NLRA] purports to reach

only to what may be deemed to burden or obstruct that

commerce and, thus qualified, it must be construed as

contemplating the exercise of control within constitutional

bounds.? 12 Thus, the Court?s reinterpretation of the

Commerce Clause defers to the judgement of Congress,

provided that the legislative branch offers a rational basis

amount of wheat the Agricultural Adjustment Act of 1938

permitted; however, Mr. Filburn also planted 12 acres of

wheat for personal use, for which he received a fine. 14

Although the wheat never left Filburn?s farm and was not

intended for sale, the Court upheld Congress? right to

regulate this production under the substantial effects test:

?It can hardly be denied that... home-consumed wheat

would have a substantial influence on price and market

for enacting the law in question. Such deference confers to conditions.? 15 However, because Filburn?s wheat

Congress both the power to legislate and determine the

validity of their legislation; this minimization of the

Court?s responsibility to conduct judicial review renders a

system of inter-compartmental checks and balances

meaningless. Not coincidentally, the Supreme Court

expressed this exact concern in Schechter Poultry, Chief

Justice Hughes arguing that under a broad Commerce

Clause, ?the extent of the regulation of cost would be a

question of [congressional] discretion, and not of power.? 13

The indication that Congress can declare constitutional any

law simply through evoking the ?substantial effects? test in

a technically appropriate manner wrongly dismisses the

Supreme Court?s right and duty to assess the underlying

meaning of the legislation and its actual accordance with

constitutional doctrine. However, facing a barrage of

economic and welfare legislation, the Court expanded the

Commerce Clause even further in Wickard v. Filburn

(1942), forgoing any limitations the phrase ?interstate

commerce? formerly imposed.

production alone cannot affect national markets, the Court

expanded their interpretation to consider that ?his

contribution, taken together with that of many others

similarly situated, is far from trivial.? 16 Significantly, this

aggregation test allows for the consideration of theoretical

scenarios in which entire populations act in the same

manner as the litigant. Such a theoretical aggregation test

misguidedly ignores economic realities in favor of

discussing unproven hypotheticals. This sudden rejection

of the burgeoning legal realism movement generates two

important implications. Firstly, so long as a particular

activity theoretically produces an indirect effect on a

national market when considered a predominating

behavior, Congress holds a rational basis to regulate the

activity. This implies that Congress can justify legislation

based on the potential behaviors of those individuals not

adversely impacting the economy and/or individuals not

currently engaged in the targeted form of commerce.

Seventy years later, Justices Scalia, Kennedy, Alito, and

Thomas condemned this logic in NFIB v. Sebelius (2012),

The Court?s holding in Wickard v. Filburn deems

a case involving an individual mandate to purchase health

regulations constitutional if the targeted behavior could

care: ?if every person comes within the Commerce Clause

potentially impact the national economy, wrongly

power of Congress to regulate by simple reason that he

empowering Congress to regulate activities irrelevant to

will one day engage in Commerce, the idea of limited

interstate commerce. In Wickard, the appellee owned a

small commercial farm on which he grew the maximum

government is at end.? 17 Secondly, because of the

12. NLRB, 301 U.S. 31.

13. Schechter, 295 U.S. 549.

14. Wickard v. Filburn, 317 U.S. 111 (1942).

15. Ibid., 317 U.S. 128.

16. Ibid.

17. National Federation of Independent Business v. Sebelius, 567 U.S. 530 (2012).


48


capitalistic nature of the United States, economic activity

remains inseparable from everyday life; any given

behavior applied in the theoretical aggregation test impacts

legislative judgement that the activity substantially

affected interstate commerce, even though no substantial

effect was visible to the naked eye, [the government] is

market prices directly or indirectly. Thus, the lacking here.? 19 While Lopez does begin to reestablish

re-envisioned Commerce Clause in Wickard seemingly

gives Congress the power to limit any activity provided an

limits on Congress? use of the Commerce Clause to

preemptively legitimize legislation, the Rehnquist Court

underlying economic motive. This reasoning hardly fails to address the theoretical nature of Wickard?s

qualifies as a rational basis for enacting legislation as aggregate test. Indeed, in ignoring this particular

Congress need not provide any evidence of the

population?s actual overall behaviors and resulting effects.

On the contrary, the theoretical aggregations justifying

legislation can potentially contradict reality.

precedent, Rehnquist missed a valuable opportunity to

ensure proper use of the Commerce Clause through

increasing judicial oversight and insistence on legal

realism.

Furthermore, the Court?s application of the theoretical

aggregation test delegates too much authority to Congress

in determining the rationality of legislation. Indeed, in

Wickard and later in the 1960s civil rights cases, including

Heart of Atlanta Motel, Inc. v. United States (1964), the

Court merely defers to Congress? determination that the

potential aggregate effect obstructs commerce. The

Court?s refusal to assess the quality of Congress?purported

evidence, and thus make its own independent conclusions

regarding the ?substantial effects? test, epitomize the

legislative branch?s increasing claim on ?judicial? review.

The Rehnquist Court somewhat restored the balance of

power between the Court and Congress in United States v.

Alfonso D. Lopez, Jr. (1995), establishing stricter scrutiny

into the level of connection between a law and commerce.

In Lopez, the Court decided that Congress could not create

gun-free school zones because while possessing a gun

could potentially impact commerce, the activity was not

inherently economic. 18 More relevantly, however, Chief

Justice Rehnquist predicated this new qualification of the

?substantial effect? test on Congress? failure to provide

evidence for the Court?s consideration: ?to the extent that

congressional findings would enable us to evaluate the

Proponents of Wickard argue that the moral dilemmas

surrounding New Deal and civil rights legislation

necessitated expanding the Commerce Clause, however,

morality in-and-of-itself cannot justify radical

transformations of constitutional doctrine. President

Roosevelt?s intention to end the Great Depression and

President Johnson?s crusade against racial discrimination

represent inarguably noble missions, but even a moral

reading of the Constitution remains reliant on pre-existing

doctrines. The originator of moral reading, Robert

Dworkin, framed this interpretive lens as a mechanism

allowing for legitimate counter-majoritarian decisions

when ?no moral cost has been paid, because no one,

individually or collectively, is worse off...? 20 In essence,

the Court?s moral reading invokes the ?necessary and

proper? clause, insinuating that if a law corrects for

inequality in society then Congress may use any applicable

power, enumerated or implied, to justify this legislation.

Thus, the Court insisted in NLRB until Lopez, that morality

always acted in conjunction with Congress? Commerce

Clause power. While the moral reading allows for a broad

application of a specific power, the inherent meaning of

that power never changes; the Court failed in this latter

18. United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995).

19. Ibid., 514 U.S. 563.

20. Ronald William Dworkin, Freedoms Law: the Moral Reading of the American Constitution (Oxford: (Oxford University Press, 1999), 32.


49


respect. In order to make their moral reading argument in

Wickard and Heart of Atlanta Motel, the Court created a

substantively new formulation of the Commerce Clause,

shifting the doctrine away from the confines of economics

and into the realm of general welfare. However, the

Clause, Congress can wield its newfound power

independent of the Court?s original intent. Although

Congress used the theoretical aggregate test morally in

Heart of Atlanta Motel, shifts in popular opinion may one

day create a scenario in which Congress applies the power

judiciary, moral intent notwithstanding, cannot without regard for Dworkin?s moral reading. Such a

significantly transform the Constitution?s underlying

meaning, precisely because the Constitution provides an

alternative pathway for such change. Article V dictates

that ?Amendments... shall be valid to all Intents and

Purposes, as Part of the Constitution, when ratified by the

Legislatures of three-fourths of the several states.? 21 This

usually insurmountable barrier to changes indicates a

desire to protect the Constitution from the whims of a

constantly changing society. Indeed, Alexander Hamilton

even argued that the Supreme Court served to maintain the

Nation?s long-term values: ?Judges [require fortitude] to

do their duty as faithful guardians of the Constitution,

where legislative invasions of it have been instigated by

the majority of the community.? 22 In creating an overly

dilemma resembles Plato?s tale of the Ring of Gyges: A

farmer obtains a ring enabling him to become invisible,

which he uses to kill the king, rape the queen, and become

a tyrant. 24 A grant of broad power relies on the discretion,

and thus character of the recipient. This concept pertains

potently to the Supreme Court because under stare decisis,

the broadened Commerce Clause exists as precedent in

perpetuity; the Court cannot tailor the Wickard precedent

to only cases morally similar to the New Deal. 25 Thus, in

empowering congressional action it deemed socially

valuable, the Court put too much trust in the morality and

beliefs of all future U.S. Congresses. If the people, under

Article V, agree to this transformation of Article I, so be it,

however, the Court should not entertain such inquiries.

enabling doctrine such as the theoretical aggregation test,

Even without a constitutional amendment, the Court could

the Court not only allowed Roosevelt and Congress to

have upheld the 1960s civil rights cases using a moral

violate the separation of powers, but also to bypass the

reading of the state action doctrine. The Fourteenth

?higher lawmaking exercise? of crafting a constitutional

Amendment declares (1) ?no state shall... deny to any

amendment. 23 Transformative doctrines based on morality

person within its jurisdiction the equal protection of the

must remain limited to Article V because some moral

law,? and (5) ?The Congress shall have the power to

principles shift over time; the Constitution must only grant

enforce, by appropriate legislation, the provisions of this

government regulatory power when the value holds

article.? 26 The 1880s Civil Rights Cases limited the Equal

overwhelming and permanent support. However, because

Protection Clause through institution of the state action

the Court, unlike a constitutional amendment, cannot tie

doctrine: the Fourteenth Amendment only pertains to the

any specific moral principle onto the expanded Commerce

21. U.S. Constitution, art. 5.

22. Alexander Hamilton, ?The Judiciary Department,? Federalist Papers no. 78, (New York: J & A McLean, 1788).

23. Bruce A. Ackerman, We the People, Volume I: Foundations, Cambridge, (MA: Belknap Press of Harvard University Press, 1991), 48.

24. Plato, The Republic of Plato, trans. Allan Bloom (New York: Basic Books, 1968), Book II, 358d-361d.

25. This purposefully ignores Justice Scalia?s unusual proclamation in Bush v. Gore, 531 U.S. 98 (2000), in which the justice essentially asserts that

the court may predetermine how a specific decision may (or may not) be later applied as precent. As an untested aberration in the Court?s doctrine of

stare decisis, the statement holds little weight in the present discussion.

26 U.S. Constitution, amend. 14.


50


public sphere; private industry could legally remains a rare feat, issues of civil rights, not commerce,

discriminate. 27 Almost a century later in Heart of Atlanta

Motel, the Court refused to make a decision on the Equal

Protection Clause, instead adopting the Commerce Clause

power developed in Wickard. 28 While the decision upheld

quintessential personal liberties, the theoretical aggregate

test represented an improper means to obtain such an end;

impacts on interstate commerce are tangential to the

equality of mankind. Furthermore, continued reliance on

have the strongest history of such decisions, primarily the

Court?s rejection of ?separate but equal? doctrine in Brown

v. Board of Education of Topeka. 30 Thirdly, supposing

Heart of Atlanta Motel would substantively expand

Congress? power under the Fourteenth Amendment, the

Equal Protection Clause deals only with protection from

identity discrimination; Congress cannot as readily abuse

this power compared to the broad economic scope of the

the Commerce Clause only perpetuates the possibility for Commerce Clause in Wickard. Unfortunately, this

and actualization of congressional overreach as elaborated interpretation, narrowly tailored to incidents of racial

above. Instead, the Court could have included inequality cannot apply to the New Deal cases. Thus, as

enforcement of segregationists?policies under its definition

of state action, an alternative moral reading requiring no

arbitrary expansion of federal power. Indeed, Justice

Douglas, in his Heart of Atlanta Motel concurrence, argued

that the Equal Protection Clause applied because

??discrimination? in the present cases is ?enforced by

officials of the State,?i.e., by the state judiciary under the

trespass laws.? 29 One could even extrapolate that police

aforementioned, a constitutional amendment acknowledging

Congress? power to regulate the general welfare

remains the most universal solution for incorporating

morality into legislation. However, the difficulty in

achieving support for such an amendment suggests that

Congress will continue to rely on the Commerce Clause

until the Court restores boundaries on congressional

authority.

officers, in choosing to enforce private segregation,

While the New Deal and the Civil Rights Act of 1964

indicated public support for discriminatory policies. Thus,

represented positive change considering the historical

the Court could use a moral reading to assert that this

background, the Court misguidedly upheld such legislation

implicit state support necessitates the Civil Rights Act of

by expanding Congress? Commerce Clause powers. The

1964 to ensure that criminal proceedings and arrests do not

Court?s deference to congressional determinations of

favor white, pro-segregationist individuals. This reading

?substantial effects on interstate commerce? allowed the

provides a cleaner framework than the Commerce Clause

House of Representatives and Senate both to legislate and

interpretation: firstly, the Fourteenth Amendment pertains

judge the validity of their legislation. While the Rehnquist

specifically to discrimination and was created as a

Court in the 1990?s limited the scope of the ?substantial

commitment to morality and equality; the Commerce

effects? test to purely economic activities, it failed to

Clause primarily serves an economic role. Secondly, a

remedy the Court?s rejection of legal realism in Wickard v.

decision based on the presence of state action requires no

Filburn. The theoretical aggregate test remains one of the

real expansion of the Equal Protection Clause, merely a

most dangerous precedents of the New Deal, wrongly

reevaluation of the precedent set under the 1880s Civil

allowing Congress wide discretion in regulating activities

Right?s Cases. Although directly overturning precedent

27. Brettschneider, 230.

28. Atlanta Motel v. United States, 379 U.S. 241 (1964).

29. Ibid., 379 U.S. 282.

30. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).


51


with marginal or only hypothetical effects on Commerce.

The Supreme Court deserves only partial blame for

handing Congress this carte blanche; President Roosevelt?s

manipulation of the Court infringed on the separation of

powers and ignored proper constitutional protocol. Indeed,

in enacting his long-term vision for a new ?moral order,?

Roosevelt opted for the most expedient means available. 31

However, such transformative changes should not rely on

tenuous connections to the Commerce Clause, but rather

must be explicitly enshrined in the Constitution.

31. Franklin D. Roosevelt, Annual Message to Congress, Records of the United States Senate, SEN 77A-H1, Record Group 46, National Archives,

January 6, 1941.


52

THE APPEARANCE OF

IMPROPRIETY: DARK MONEY

AND THE AMERICAN JUDICIARY

Olivia Siemens

ABSTRACT

The United States judiciary has a legitimacy problem. Precipitated by the heightened influence of quasi-anonymous

special interest groups in American courts, the judicial branch? and the Supreme Court in particular? faces myriad

challenges to its independence from both the American public and the other political branches. This paper will discuss the

rise of the amicus brief as a primary means of special-interest judicial lobbying, and it will analyze how this phenomenon

functions to undermine public trust in U.S. legal institutions. It will conclude with a series of concrete policy solutions

targeted at increasing amicus transparency and implementing Supreme Court ethics rules. As the arbiters of constitutional

interpretation and the protectors of individual rights and liberties, courts must combat actual or perceived political biases

at every step of the adjudication process in order to preserve its own legitimacy. The Supreme Court must itself reflect the

fundamental values of republican government by ensuring that the judicial branch remains accountable to the public it

was designed to serve.


53

The Appearance of Impropriety: Dark Money and the American Judiciary

Introduction

same pitfalls in regard to public transparency and

accountability. While continuing to derive their legitimacy

In 1820, Thomas Jefferson famously wrote, ?A judiciary

from their constitutionally-prescribed apolitical status,

independent of a king or executive alone is a good thing,

but independence of the will of the nation is a solecism.? 1 judges at every level of government have increasingly

relied on the politically-motivated reasoning contained in

Jefferson was a driving force behind the 1787

amicus briefs to shape American jurisprudence. Judges

Constitutional Convention and an ideological patron to the

have edged further into the realm of judicial activism,

original Bill of Rights. Still, writing less than 40 years

thereby creating an appearance of impropriety that

after the ratification of the Constitution, he seemed to have

threatens to undermine the credibility of the judicial

foreseen the troubles that the judiciary? the branch least

branch and thus destabilize the constitutional structure of

responsive to the ?will of the nation?? could pose to the

American democracy.

legitimacy of a republican government.

Jefferson?s concerns have proven well founded. Over the

What is an amicus, and why should we care?

past two centuries, the judiciary, and the Supreme Court in In addition to bringing forth politically-motivated

particular, has come to occupy a decisively more

prominent and political role in American government. The

courts have become a haven not just for criminal and civil

petitioners, but also for social activists from across the

political spectrum whose causes have failed to gain

traction in the legislature. Amongst these activists, we

litigation, activists have sought to politicize the judiciary

through filing amicus briefs in the Supreme Court and

various state supreme courts. These briefs, filed on behalf

of third parties to ongoing cases, are expressly designed to

influence judges? decisions in matters of ongoing legal

controversy. 2

have seen the rise of ?dark money? groups: non-profit

In theory, amicus briefs may appear benign, or possibly

organizations that are permitted to lobby on behalf of

even helpful for ensuring that judges remain in touch with

political and social agendas without disclosing their

the concerns of groups that will be impacted by the

membership or individual donors. Hiding behind the

outcomes of litigation. However, the role of the amicus

anonymous cover of these groups, special interests have

brief has grown more complex in past decades as the

sought to influence the supposedly apolitical judiciary,

number of amici has swelled and the judiciary has

especially at the appellate level, by filing thousands of

undergone fundamental constitutive change. From 1946 to

amicus curiae (friend of the court) briefs.

1955, only 531 amicus briefs were filed in the Supreme

This rising tide of quasi-anonymous amicus briefs carries

with it troubling implications for both the judicial branch

and American democracy writ large. For as the courts

have, for better or worse, become more entrenched in the

political process, they have also succumbed to many of the

Court. Between 1986 and 1995, however, this number had

increased dramatically, totaling nearly 5,000 in only nine

years. 3 And in 2014 alone, 781 briefs were submitted

throughout the high court?s year-long term? a 95 percent

increase since 1995. 4

1. Thomas Jefferson, Letter to Ritchie Monticello, December 1820.

2. ?Amicus Curiae,? Legal Information Institute, Cornell University, accessed May 19, 2020, https://www.law.cornell.edu/wex/amicus_curiae.

3. Joseph D. Kearney and Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court,? (2000), Faculty Publications, Paper

568, https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1567&context=facpub.

4.United States Senate, Office of Senator Sheldon Whitehouse, ?Whitehouse, Blumenthal, Hirono Introduce Amicus Act to Bring Transparency to

Judicial Lobbying,? May 9, 2019,

https://www.whitehouse.senate.gov/news/release/whitehouse-blumenthal-hirono-introduce-amicus-act-to-bring-transparency-to-judicial-lobbying.


54


To be clear, there is no single factor upon which a court?s

decision swings, and even the correct textual interpretation

of the law is frequently disputed. Judges must therefore

base their opinions on a variety of extralegal inputs,

to public scrutiny. In many cases, so-called ?business front

groups,? non-profit organizations with innocuous names

such as the Presidential Coalition, the Public Interest Legal

Foundation, and Americans for Prosperity, serve as

including their education and experiences, their anonymous vessels behind which special interests can hide

jurisprudential approaches, and yes, their ideological and

political biases. Therefore, although it is unlikely that these

briefs alone determine judges?rulings, it would be naive to

claim that they exert little or no impact. During oral

arguments, judges often lean heavily on the contents of

amicus briefs to formulate their questions for the litigants

and as factual and analytical bases for their written

opinions. In 2015, the American Bar Association (ABA)

reported that state supreme courts discuss arguments

contained in amicus briefs in 82 percent of the cases they

decide. 5 Another longitudinal study published in the

University of Pennsylvania Law Review in 2000

demonstrated that between 1946 and 1995, the number of

cases in which the Supreme Court directly cited amicus

briefs rose from 18 percent to nearly 37 percent.

while lobbying the court to achieve their desired outcomes.

Internal Revenue Service (IRS) guidelines do not generally

require these groups to disclose their sources of funding.

Wealthy corporations and individuals can thus pump

unlimited? and tax-deductible? cash streams through

these organizations, which, in turn, may file amicus briefs

intended to produce favorable outcomes for their donors.

When referenced in binding majority opinions, successful

amicus arguments become legal precedent, effectively

converting their sponsors?interests into the law of the land

while skirting the legislative process altogether.

Dark money in action

Much of the Supreme Court?s contemporary docket has

placed it squarely at the intersection of law and politics,

where it has resolved high-stakes questions related to

Many wonder who is responsible for this surge in amicus

partisan gerrymandering, voting rights, election spending,

briefs. Which groups or private interests are most often

collective bargaining, and more. While engaging in

represented behind the judiciary?s opaque walls? The

principled judicial reasoning is of paramount importance

answer remains unclear. The Supreme Court?s Rule 37,

regardless of the reach of any given decision, the Court?s

which governs the filing of amicus briefs, contains myriad

ability to distinguish politics from law in these far-reaching

loopholes that allow individuals and corporations to

cases is still more critical; after all, the judiciary?s

conceal their true identities. There is no requirement that

institutional credibility rests on its ability to maintain an

the real amici? the individual board members,

apolitical character. It is also true, however, that

stakeholders, or sponsors who fund the organizations filing

dark-money groups have been particularly invested in the

the briefs on their behalf? make themselves or their

outcomes of these more ?political? and impactful

interests known to either the court or to the American

questions? and that they?ve identified the amicus brief as

people. 6 Indeed, many do not.

Anonymity is a valuable resource to those who hope to

a primary mechanism for further politicizing the Court to

their advantage.

shape judicial opinions without exposing their true agendas

5. ?Amicus Briefs: How to Write Them, When to Ask for Them,? American Bar Association, September 1, 2015,

https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2015/september-october/amicus_briefs_how_write_them_when_ask_them/.

6. ?Rule 37. Brief for an Amicus Curiae,? Legal Information Institute, Cornell Law School, accessed May 22, 2020,

https://www.law.cornell.edu/rules/supct/rule_37.

7. ?Political Nonprofits (Dark Money),? OpenSecrets.org, accessed May 22, 2020, https://www.opensecrets.org/outsidespending/nonprof_summ.php.


55


These dark-money investments have largely paid off. In a Jurisprudence (CCJ), and the Cato Institute. 10

2019 brief published by the American Constitution

Interestingly, the majority opinions in these cases, though

Society, Rhode Island Senator Sheldon Whitehouse

mostly written by self-proclaimed conservatives, have

pointed out that the Supreme Court?s

often bucked traditional conservative legal principles, such

Republican-appointed majority has consistently decided in

as originalism, textualism, and judicial restraint. 11 In Janus

favor of conservative and pro-business petitioners in an

and Citizens United, the majority?s commitments to

overwhelming number of their highest profile cases. In one

textualism and judicial restraint were apparently overcome

such case, Janus v. AFSCME (2018), the Supreme Court

by its discovery of new modes of First Amendment

overturned four decades of labor law precedent on the

interpretation. These novel jurisprudential approaches were

basis that requiring public sector employees to pay union

aided, it seems clear, by the filings of notoriously

fees violated the First Amendment. The majority opinion

conservative, libertarian, and pro-business organizations

held that the Court was not required to respect stare decisis

such as the U.S. Chamber of Commerce, the Cato Institute,

in this case because compelling non-unionized employees

the Center for Constitutional Jurisprudence, Pacific Legal

to pay these fees amounted to ?compelling a person to

Foundation, Judicial Watch, Competitive Enterprise

subsidize the speech of other private speakers.? 8 Of the 19

Institute, and others. In Hobby Lobby, the majority

briefs filed on behalf of third-party organizations in Janus,

neglected another longstanding American judicial

13 came from groups currently or formerly affiliated with

philosophy? prioritizing compelling government interests

the State Policy Network (SPN), an anonymously-funded

over religious exemptions to broadly applicable laws? in

umbrella organization for conservative and libertarian

favor of granting such exemptions to employers who

think tanks. 9 In three other high-profile cases that delivered

refused to provide insurance funding toward their female

monumental conservative victories, Citizens United v. FEC

employees? birth control prescriptions. 12 Again, the PLF,

(permitted unlimited political spending by corporations),

CCJ, and Cato Institute emerged as prominent amici in

Burwell v. Hobby Lobby Stores (expanded employers?

addition to the conservative Liberty University, Liberty

rights to claim religious exemptions to certain employee

Institute, Foundation for Moral Law, and 53 other religious

insurance requirements), and Shelby County v. Holder

and conservative organizations filing amicus briefs. 13

(struck down key provisions of the 1964 Voting Rights

Finally, Shelby County? a 5?4 decision overturning most

Act), at least three other conservative non-profits were

of the substantive provisions of the Voting Rights

recurring amici on behalf of the petitioners: the Pacific

Act? saw Chief Justice John Roberts revise the meaning

Legal Foundation (PLF), the Center for Constitutional

of the Fourteenth Amendment?s Equal Protection Clause to

8. Janus v. American Federation of State, County, and Municipal Employees, Council 31, 585 U.S. __ (2018).

9. Sheldon Whitehouse, ?The Supreme Court has become just another arm of the GOP,? Washington Post, September 6, 2019,

https://www.washingtonpost.com/opinions/the-supreme-court-has-become-just-another-arm-of-the-gop/2019/09/06/8ad36642-d0e2-11e9-87fa-

8501a456c003_story.html; ?About State Policy Network,? State Policy Network, https://spn.org/state-policy-network-about/.

10. ?Citizens United v. Federal Election Commission,? SCOTUSblog, 2010,

https://www.scotusblog.com/case-files/cases/citizens-united-v-federal-election-commission/; ?Burwell v. Hobby Lobby Stores, Inc.,? SCOTUSblog,

2014, https://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/; ?Shelby County v. Holder,? SCOTUSblog, 2013,

https://www.scotusblog.com/case-files/cases/shelby-county-v-holder/; S. Whitehouse, ?A Right-Wing Rout.?

11. Sheldon Whitehouse, ?A Right-Wing Rout: What the ?Roberts Five?Decisions Tell Us About the Integrity of Today?s Supreme Court,?

American Constitution Society, April 2019, https://www.acslaw.org/wp-content/uploads/2019/04/Captured-Court-Whitehouse-IB-Final.pdf.

12. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

13. ?Burwell v. Hobby Lobby Stores, Inc.,? SCOTUSblog.


56


prohibit the federal government from intervening in state jurisprudential principles when these principles conflict

elections to protect minority voting rights. 14 And again, with politically conservative outcomes, nevertheless

PLF, CCJ, and Cato were the recurring three amongst 20 remain genuinely apolitical. And for the Supreme Court,

amici filing in support of this outcome. 15

whose raison d?être is to provide a minimally biased

reading of the Constitution (and notably whose decisions

Obviously, such results cannot be attributed to the contents

cannot be appealed), these numbers represent an existential

of the amicus filings alone. The Roberts Court, with its

threat to the judiciary?s continued widespread credibility.

Republican-appointed majority, may well have favored

As Senator Whitehouse stated in his own recent amicus

conservative interests in each of these cases even in the

brief, ?The Supreme Court is not well. And the people

absence of suspect amicus filings. However, the

know it.?

confluence of recent trends in the American judiciary? a

19 Though writing nearly 200 years after the fact,

Whitehouse may as well have cited Thomas Jefferson?s

marked increase in special interests?efforts to influence the

nineteenth-century lament.

Court, the inadequacy of transparency requirements

surrounding these efforts, and the justices? increased Toward a new hope for the Court

sympathy for the political agendas preferred by these same

As first steps towards restoring public confidence in the

special interests? has brought the Court?s institutional

apolitical nature of the Court, both the legislature and the

credibility into real dispute. In 2019, overall public

judiciary must act: the former to increase amicus

approval of the Supreme Court hovered around 54 percent,

transparency requirements and the latter to implement a

a narrow majority. 15 The partisan breakdown, though,

Supreme Court code of ethics.

shows significant drop-off in approval by Democratic

court-watchers simultaneous with an increase amongst

Congress should first pass a version of Senator

Republicans during recent years. Today, about three

Whitehouse?s Assessing Monetary Influence in the Courts

quarters of Republicans, 73 percent, report that they

of the United States (AMICUS) Act. If enacted, this bill

approve of the job the Court is doing, while well below

would require each ?covered amicus?? any individual or

half? only 38 percent? of Democrats do. 17 This, the Pew

group that files three or more amicus briefs in the Supreme

Research Center notes, amounts to the widest partisan gap

Court annually? to take steps towards greater financial

in favorability ratings the Supreme Court has seen in two

transparency. First, each covered amicus brief must list the

decades.

name of any group or individual who helped in the

preparation of the brief and/or contributed more than

It would be difficult to maintain that justices who so

$100,000 or 3 percent of gross annual revenue over the

blatantly favor politically conservative interests, who

past year to the covered amicus. Second, each covered

appear to frequently disregard their long-standing

14. Shelby County v. Holder, 570 U.S. 529 (2013).

15. ?Shelby County v. Holder,? SCOTUSblog.

16. ?Supreme Court,? Gallup, https://news.gallup.com/poll/4732/supreme-court.aspx.

17. Lydia Saad, ?Supreme Court Enjoys Majority Approval at Start of New Term,? Gallup, October 2, 2019,

https://news.gallup.com/poll/267158/supreme-court-enjoys-majority-approval-start-new-term.aspx.

18. Claire Brockway and Bradley Jones, ?Partisan gap widens in views of the Supreme Court,? Pew Research Center, August 7, 2019,

https://www.pewresearch.org/fact-tank/2019/08/07/partisan-gap-widens-in-views-of-the-supreme-court/.

19. Brief of Amici Curiae Senators Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand, New York

State Rifle & Pistol Association, Inc. v. City of New York, New York, et al. Docket No. 18-280 (2019),

https://www.supremecourt.gov/DocketPDF/18/18-280/112010/20190812151259076_18-280bsacSenatorSheldonWhitehouse.pdf.


57


amicus must register its organization with the recover their spirit of apolitical judicial rigor may be

Administrative Office of the U.S. Courts (Administrative

Office), which will, in turn, produce and periodically

update accessible lists containing this information on its

public websites. Third, the Act prohibits covered amici

from making gifts or paying travel expenses of current

court of appeals judges or Supreme Court justices

(excluding accredited law schools). 20

The transparency principles underlying the AMICUS Act

are clear and compelling: if certain special interest groups

are given disproportionate influence over American

jurisprudence, then the American people should at least

have the right to know who these groups represent. The

rationale for this position is two-fold. First, while special

interests? as equal stakeholders in the American political

process? should certainly retain the right to voice their

opinions on matters of law and policy, they should also,

like other private stakeholders, be compelled to take

ownership for these opinions. Rather than hiding between

vaguely innocuous mastheads purporting to further

through self-reflection; if they are to effectively parse the

narrow line that divides law from politics, they must first

understand the political forces that seek to influence their

decisions through amicus filings. But this lofty goal can be

pursued only if amici, like other parties to litigation, are

required to present themselves as they truly are: interested

and equal participants in a national debate over the proper

trajectory of American public policy.

There may also be an internal fix for the Supreme Court?s

?appearance of impropriety? issues. U.S. Supreme Court

justices are the only judges in the nation who are not

bound by the judicial Code of Conduct. 21 Mending this

ethics gap between SCOTUS justices and their colleagues

serving in the lower courts could prove useful in restoring

the Supreme Court?s apolitical reputation. By swearing to

abide by an ethics code modeled after the judicial Code of

Conduct, Supreme Court justices could clarify their ethical

commitments to the public, adopt standard procedures for

real or perceived conflicts of interest, and minimize

common interests such as ?liberty,? ?justice,? political criticisms of the justices? conduct, thereby

?constitutional rights,? and ?free enterprise,? individual protecting the Court?s institutional reputation and

donors should be responsible to the American people for authority.

defending and clarifying their politically-driven

Republican government derives its ultimate authority from

investments in the judiciary.

the people it governs. Its ongoing success relies on its

Second, the American judiciary itself must be held propensity for both representation and transparency, and on

accountable for protecting its institutional legitimacy. The its ability to dismantle undue monopolies on

separation of powers principle dictates that courts must

interpret existing laws, not make new ones. As challenging

as it may be for judges to put aside their personal

decision-making power. The U.S. judiciary is intended to

safeguard our system of representative democracy by

ensuring that no interested group can claim outsized

politics? particularly when presented with heavily procedural influence or trample on the constitutional rights

politicized amicus briefs? their duty to the public is to

remain as genuinely apolitical in their rulings as possible,

both in fact and in spirit. One way these judges can seek to

of other groups. Still, as the branch guided least directly by

the ?will of the nation,? the judiciary has an even greater

responsibility to reflect upon and safeguard its own

20. U.S. Congress, Senate, Assessing Monetary Influence in the Courts of the United States (AMICUS) Act, S 1411, 116th Cong., 1st sess.,

introduced in Senate May 9, 2019, https://www.congress.gov/bill/116th-congress/senate-bill/1411?s=1&r=2.

21. ?Guide to Judiciary Policy, Ch. 2: Code of Conduct for United States Judges,? USCourts.gov,

https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf


58


institutional legitimacy. Should it wish to maintain its

independence from the interference of the political

branches, the Supreme Court must hold itself to a higher

standard for political objectivity, ethicality, and most

importantly, transparency.


59

CHILD SOLDIERS AND THE LEGAL

SYSTEM

Alexandra Messersmith Johnson

ABSTRACT

This paper will examine the complex relationship of international precedent and law, criminal culpability, and child

soldiering. The paper begins with an investigation of the root causes of the development and increasing use of the use of

child-soldiers. The paper then continues with an examination of the international laws and instruments that protect against

the use of children as soldiers, as well as their relevant shortcomings. The final section of this text will examine the

Democratic Republic of the Congo in order to argue that the military leaders, and not the children, should be held

criminally culpable. Children of all ages deserve to not be used as weapons for armed groups and need protection by the

international community.


60

Introduction

Child participation in armed conflict is a disturbing social

and political phenomenon. Global policy discourse

establishes "child soldiering" as an unambiguous violation

of human rights. 1 A plethora of international organizations

strive to enact a set of norms, standards, and laws against

the conscription of children. 2 Nonetheless, images of boys

carrying guns, stories of girls pressed into the service of

militia, or reports of children taking human lives

proliferates the media.

This paper will review the legal precedent surrounding

child soldiering. The phenomenon defies both accepted

and emergent norms of children's rights. The research will

explore the motivations for child soldiers and the factors

that makes them vulnerable to recruitment. These details

will underline why criminal responsibility belongs to the

recruiters and not the children. Then, this paper will

examine the efficacy of existing international legal

instruments in order to conclude that the priority should be

on prosecuting these responsible military leaders.

The accounts of child soldiers in the Democratic Republic

of the Congo (DRC) will be used as an illustration of the

atrocious nature of this human rights violation. The

phenomenon in the DRC, clearly exemplifies the poor

political and social conditions that often aggravate the

impacts of war for children. These factors also affect the

potential of international organizations to successfully

safeguard children?s rights.

Finally, the trial of Thomas Lubanga with the International


Criminal Court offers a broad, analytical perspective on

the value of judicial prosecution as deterrence. The case

condemns the recruitment of children. To close, the paper

will articulate a well-cited prospect for the future: holding

adults who recruit children criminally accountable as an

approach to uphold international values.

Defining and Conceptualizing Child Soldiers

To understand the basis of this research, it is essential to

establish the definition of child soldiers: in particular,

which persons are legally and internationally recognized

as a ?child.?A child soldier is defined as ?any person under

18 years of age who is part of any kind of regular or

irregular armed force or armed group in any capacity,

including but not limited to cooks, ports, messengers, and

those accompanying such groups, other than family

members.? 3 This definition is in conformity with

internationally accepted standards including the Article 1

of the Convention on the Rights of the Child (CRC).

Motivations for Child Soldiers

There are a litany of motivations for the participation of

child soldiers in armed conflicts. These range from the

socio-political and economic circumstances, such as

poverty, family, and marginalization, to the overall

environment of perpetual war. 4 The militarization of

society, for instance, creates conditions in which child

soldiering flourishes. Poverty and the context of

impoverished social amenities are certainly ?pull factors?

motivating children to participate in warfare. 5

1. Ah-Jung Lee, ?Understanding and Addressing the Phenomenon of 'Child Soldiers,? Oxford Department of International Development, Oxford

University, 2009, 4?5.

2. UNICEF, ?Protecting the World's Children: Impact of the Convention on the Rights of the Child in Diverse Legal Systems,? (Cambridge:

Cambridge University Press, 2007), 66.

3. ?Symposium on the Prevention of Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child

Soldiers in Africa,? UNICEF, Cape Town Principles and Best Practices, (1998), 12.

4. David J Francis, ??Paper Protection?Mechanisms: Child Soldiers and the International Protection of Children in Africa's Conflict Zones,? The

Journal of Modern African Studies 45, no. 2, (2007): 211?213.

5. ?Guide to the Optional Protocol on the Involvement of Children in Armed Conflict.? UNICEF (2004), 5.


61

When governments or armed forces recruit child soldiers,

the distinctions between voluntary and forced recruitment

become blurred. In certain situations, children legally join

the military groups. Children are often physically

vulnerable, easily intimidated, and susceptible to

psychological manipulation. Thus, there is controversial

debate as to whether children are able to make informed

decisions about joining militant groups at such a young

age. The alleged volunteers are not always making choices

by their own free will. For example, indirect or coercive

mechanisms ? ranging from intimidation or social

pressure to access food, shelter, and security ? persuade

children to join the armed groups. 6 Once children are

conscripted, they are forced into loyalty through coercion

and systematic torture. Human Rights Watch investigations

have found that child recruits are often forced to physically

punish and kill other soldiers, and their own families.

Many child soldiers are compelled to follow these orders

under threat of severe punishment or death. These

practices instill fear and guilt in the children and forearm

them of their fate should they attempt to escape or fail to

maintain loyalty. 7

Furthermore, there are innumerable reports of children

abducted at school, on the streets, or at home. Young

women and girls are kidnapped and held at military camps

where they are consistently used as laborers, servants, or

sexual slaves. The sexual violation marks young women?s

war experiences and destroys their sense of home, security,

self-worth, and the possibility of safe interpersonal

relationships ? indeed, of any future at all. 8

Several interrelated factors explain the underlying causes

of the rise in the recruitment and use of child soldiers.

Armed groups or paramilitaries forcibly recruit children


for several reasons. One explanation is sheer need, which

dictates the age of the forcibly recruited. As the number of

available men to fight decreases, so does the age of

potential recruits, from youth to younger and younger

children. Second, military leaders consider children as

particularly helpful in their combat strategy. They use

children as messengers, porters, spies, and lookouts

because they are able to enter small spaces. Finally,

children are obedient and more easily manipulated than

adult soldiers. 9 Children?s and adolescents? identities are

still being formed. Therefore, they are preferred over

adults because they accept more dangerous tasks without

scrutinizing them.

International Humanitarian Law and the Protection of

Children

The method to combat child soldiering internationally has

been dominated by a rights-based approach; humanitarian

agencies conceptualize "child soldiering" in terms of a

violation of universal children?s rights and a breach of

international law. 10 Intergovernmental organizations have

signed and committed their member states to protect

children.

Children, prior to the Geneva Conventions (1949), were

the most invisible segment of society in the area of

international human rights. Since, intergovernmental

organizations have signed and committed their member

states to protect children. Notably, the The First Additional

Protocol to the Geneva Conventions (1977) affirms that

involved parties shall take ?all feasible measures to ensure

that children who have not attained the age of fifteen years

do not take a direct part in hostilities and, in particular,

they shall refrain from recruiting them into their armed

6. Alcinda Honwana,?Introduction ? in Child Soldiers in Africa, (Philadelphia: University of Pennsylvania Press, 2011), 6.

7. Francis, 212.

8. Honwana, 91.

9. Amy B. Abbott, Note, Child Soldiers- The Use of Children as Instruments of War, 23 SUFFOLK TRANSNAT'L. L. REV. 499, 513.

10. Ilse Derluyn, et al. ?Victims and/or Perpetrators? Towards an Interdisciplinary Dialogue on Child Soldiers.? BMC International Health and

Human Rights, BioMed Central, Oct 14, 2015, www.ncbi.nlm.nih.gov/pmc/articles/PMC4604774/.


62

forces.? 11 The Additional Protocol presented goals and

targets in order to ensure the prominence and legitimacy of

child rights. 12

In 1979, the International Year of the Child, states

conferred on a proposed and comprehensive document

defining children?s rights. Following ten years of

deliberation, the United Nations adopted the landmark

Convention on the Rights of the Child. The convention?s

fifty-four articles include a wide spectrum of child rights

and are ratified by all nations except Somalia and the

United States of America. 13 Significantly, the document

establishes global precepts for a child?s inherent right to

life, survival, development, and freedom of thought: ?[a

child] should grow up in a family environment, in an

atmosphere of happiness, love and understanding.? 14 The

CRC provides that the protection of children should be a

high priority for legislative and governing bodies and

obliges state parties to guarantee the reintegration or

healing of children affected by war. 15 In summation, the

document gives the problem of child soldiers a legal

foundation and contributes to the broader discourse on the

rights of the child.

The Convention on the Rights of the Child defines a child

as a person below the age of eighteen, yet, Article 38

declares involved parties shall take ?all feasible measures

to ensure that persons who have attained the age of fifteen

years do not take a direct part in hostilities.? 16 Notably, the

language is stronger than the First Additional Protocol.

The language underlines that the international world must

take action to ?ensure" that children are not involved in


armed conflict. This is important because most of the

suggestions to improve the international legal situation

focus on the development of stronger protocol to raise the

minimum age for voluntary enlistment to 18 years. Thus,

Article 38 was seen as the first step.

The African Charter on the Rights and Welfare of the

Child, promulgated in 1990 by the Organization of African

Unity, defines a child as an individual younger than

eighteen. Article 22 does not specify a different age for

nonparticipation in armed conflict, simply requiring that

involved parties take ?all necessary measures to ensure that

no child shall take a direct part in hostilities and refrain in

particular from recruiting any child.? 17

The debate over the minimum age for recruitment and

participation in armed conflict has been contentious.

Many human rights organizations maintain that fifteen

years of age was too young for military participation.

Accordingly, the UN assembled a working group to

thoughtfully assess the topic. The deliberations lasted for

over six years. In May of 2000, the Optional Protocol to

the Convention on the Rights of the Child on the

Involvement of Children in Armed Conflict established

eighteen as the minimum age for military recruitment. 18

The protocol applies to both national armed forces and

non-state armed groups. Additionally, the protocol obliges

states to rehabilitate former child soldiers.

Despite the age requirements, there are still limitations to

the protocol. For instance, a minimum age of sixteen is set

for voluntary, noncombatant recruits. Australia, the United

11. Additional Protocol I, art. 77, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.34_AP-I-EN.pdf

12. Honwana, 36.

13. Ibid, 35.

14. Lee, 6.

15. Honwana, 36.

16. Volke Druba, ?The Problem of Child Soldiers,? International Review of Education 48, no. 3 (2002): 273.

17. African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), art. 2.

18. Optional Protocol on the Convention of the Rights of the Child concerning involvement of children in armed conflicts, http://www.icrc.org


63

Kingdom, and the United States are responsible for

weakening the protocol. The consequences of this

exception leaves sixteen- and seventeen-year-old persons

susceptible to pretextual, ?voluntary? recruitment. 19

Extreme coercion can be masked behind ?voluntary?

accession to militant groups because children often lack

the capacity to determine their best interests , to analyze

competing ideologies, or to form opinions. This is why the

element of ?consent? required to determine whether or not

a child is responsible is complex and should not be

determinative. Moreover, the international community

was unable to reach a straight-eighteen position; a source

of great frustration for many organizations and agencies.

Specifically, they believe that the failure of all nations to

acquiesce an age standard demonstrates power imbalances

and the self-interest of hegemonies. Non-governmental

organizations are explicitly critical of the states who assert

their narrow, military interests over the rights of children. 20

This includes the United States. For instance, in 2006,

against a background of falling enlistment and the pursuit

of military aims, the United States and United Kingdom

engaged in concerted efforts to encourage adolescents

towards a career in the armed services. The potential

dissonance between the projected image of protection of

children and actual practice is compounded by the fact that

recruiting efforts in these powerful states continue apace. 21

Therefore, the use of child soldiers in so many countries

today illustrates the failure by the international community

to implement and adhere to the principles inscribed in the

international humanitarian laws.

Another significant international development to protect

child soldiers is the International Labor Organization

Convention on the Worst Forms of Child Labor. Following


the ILO?s efforts, the UN Security Council passed a

number of resolutions aimed at protecting the youth.

Security Council Resolution 1261 (1999) underlines the

responsibility of all nations to end impunity by obliging

them to prosecute any person(s) responsible for grave

breaches of the Geneva Conventions. In its Resolution

1379 (2001), member states are encouraged ?to prosecute

those responsible for? egregious crimes perpetrated

against children.? 22

Finally, the UN Security Council involved various

non-governmental agencies to ensure a more systematic

monitoring and reporting of the use of children in warfare

and other types of abuses committed against children in

situations of war. Relevant NGOs publish case studies and

urge nations to reinforce local understandings and norms

about notions of childhood and child protection from war.

For example, Child Soldiers International publishes a

national report that maps child recruitment practices

worldwide and encourages local communities to make

efforts to stop the abuse of the rights of children. Notably,

in 2018, the NGO exposed the participation of children in

at least 18 conflicts, and implemented measures to remove

children from their ranks in the Congolese national army

and the Moro islamic Liberation Front. The impact of its

studies works to consolidate the legal precedent,

international understandings of the phenomenon, and

strengthen community initiatives to prevent their

recruitment in the first place. 23

Child Soldiers as a Human Rights Violation: Why

Child Soldiers Are Not Being Protected

The experience of armed conflict and interaction with the

military profoundly harms young people. The boys and

19. Honwana, 37.

20. Jeremy Sarkin, "The Role of the United Nations, the African Union and Africa's Sub-Regional Organizations in Dealing with Africa's Human

Rights Problems: Connecting Humanitarian Intervention and the Responsibility to Protect,? Journal of African Law 53, No. 1 (2009): 1, 1464-1465.

21 . Jason Hart, ?The Politics of ?Child Soldiers,??The Brown Journal of World Affairs 13, no. 1 (2006): 217?26.

22. Honwana, 39.

23. Kristen Castrataro, ?Child Soldiers International,? The Alliance for Child Protection in Humanitarian Action, 2019.


64

girls abducted into armed groups are placed in a twilight

position between civilian and military life. Their daily

lives are conditioned by war. 24 While this phenomenon is

universally denounced, increasing numbers of children are

susceptible to recruitment and subjugation to the brutalities

of war. The number of children who have been recruited

and used in hostilities is challenging to quantify. Research

indicates that 300,000 child soldiers are currently exploited

in over 30 conflicts around the globe. 25

International humanitarian law has not been effective in

enforcing norms or ensuring that violators may not act

with impunity. The central question is how to make

international humanitarian law understood, acknowledged,

and applied in areas where children are recruited on a daily

basis and in conflict zones. Several problems are

responsible for the limitations of international laws. A

major obstacle is the reluctance and failure of all states to

enforce their own standards. Many signatories to child

protection treaties do not commit themselves meaningfully

to the documents; they instead work out of strategic

self-interest and often enforce standards incoherently or

selectively. 26

Finally, while many non-governmental organizations and

activist groups have amassed information about the

situation of children in the areas where they operate, they

still face serious challenges with regard to long-term

perspectives and preventing the children from being drawn

into such conflicts in the first place. NGOs commonly

uphold that efforts should be placed on prosecuting

military leaders who commit crimes against children and


recruit children under fifteen. Amnesty International, for

instance, avers that ?courts must bring prosecutions against

persons who recruited and controlled child soldiers.

Wherever appropriate, these people must be held

responsible for the atrocities committed by the children

under their control through the legal doctrine of command

responsibility.? 27 The analysis presented here demonstrates

that individual accountability can act as a preventative

measure to deal with the serious problems of coercion

methods and abduction that are at the origin of child

soldering. The societal crisis which both results from and,

more importantly, generates these civil wars is what pushes

children into military activity and continues to limit their

prospects for a better future. In this light, what would be

required to address the problems child soldiers suffer is

exactly the same as what would be required to prevent

adult military leaders from recruiting this vulnerable

group. 28

Case study: Democratic Republic of the Congo

Child soldiering in Africa is endemic and devastating. In

the 1990s, most regions in Africa were plagued by violent

wars. The Democratic Republic of the Congo (DRC) has

been mired in conflict, armed clashes, and human rights

violations. Military leaders have recruited and abducted

thousands of child soldiers, used on the front line in the

civil war and the prolonged fighting between rebel

groups. 29 In the eastern Democratic Republic of Congo,

children as young as six are brutally abducted and

recruited by militias. The international nonprofit

WITNESS reports that children make up 60 percent of

24. Honwana, 47.

25. Guide to the Optional Protocol, 1.

26. ?Child Soldiers: Global Report 2004,? United Nations Office for the Coordination of Humanitarian Affairs, 15.

www.reliefweb.int/report/world/child-soldiers-global-report-2004

27. ?Child Soldiers: Criminals or Victims? Amnesty International (2000). www.amnesty.org/download/Documents/140000/ior500022000en.pdf.

28. Honwana, 44.

29. ?Child Soldiers in the Democratic Republic of Congo.? WITNESS.

www.witness.org/portfolio_page/protecting-child-soldiers-democratic-republic-congo/.


65

combatants in the region. 30 Their case studies feature

stories of children who are captured while working in

fields, in raids, or directly from school with forced

?agreements? where teachers must hand children over.As

many as 30,000 child soldiers were estimated to have

experienced the UN?s disarmament, demobilization, and

reintegration program. 31

Other stories feature the children who volunteer because

they have grown up in situations of war and harbored little

hope of liberation from a cycle of violence. One

aggravating factor is the forcible population displacement

in the DRC, which contributes to the weakening of the

social fabric. Families and communities split up and lose

any sense of cohesion. 32 These socioeconomic conditions

generate poor living situations where children go hungry,

can no longer afford school, or live on the streets. Such

conditions culminate with children feeling as if they must

follow soldiers to military camps, yearning for physical

protection or better opportunities. 33 An unnamed soldier

proclaimed: ?Life forced me to become a soldier. At home,

we were hungry. We had little to eat and few clothes to

wear. I thought it would be better there, but it was worse.

Sometimes we would return from training and there was

nothing to eat.? 34

However, the child soldiers ? whether voluntary

or by force ? quickly realize the abusive and horrific

nature of military camps. UNICEF relayed the following

statement: ?These children have been witness to killings.


Many among them have themselves been obliged to kill.

Their childhood was stolen from them. Children should be

safe in their home and at schools, not forced to fight on the

battlefield.? 35 The testimonies from young women are

especially appalling. They describe being sexually

assaulted by different men. The majority are forced to loot

goods and carry the goods for hours or days. The girls who

are too weak to carry the heavy spoils are often killed.

Similar narratives of terror, aggression, and survival

connect the children across all warring factions. Children

from all facets of the DRC are indoctrinated into this

culture of aggression and are traumatized. 36 Additionally,

they are barred from access to proper healthcare,

education, or the nurturing care of family and friends.

One afternoon Michel Chikwanine was abducted at age

five by rebel soldiers in the DRC while playing soccer

with his friends. He was forced to become a child soldier

and told he would become indestructible in a country in

tumult. He was heralded onto a truck with his close friend

Kevin. Chikwanine was then blindfolded, handed an

AK-47 gun, and ordered to kill Kevin in a bloody initiation

ritual. 37

Chikwanine?s story generates the question of who bears

responsibility. Certainly, the young soldier?s responsibility

for shooting Kevin is not equal to that of a boy who kills

his friend for some imagined benefit. Unfortunately, the

context of war and violent initiations prevent children like

Chikwanine from detaching their beliefs and values from a

30. Ibid.

31. ?Child Soldiers Global Report 2004 - Congo, Democratic Republic of The.? United Nations. Refworld (2004)

www.refworld.org/docid/49880668c.html.

32. Honwana, 39.

33. Rumbi Chakamba, ?Girls In The DRC Are Choosing To Be Child Soldiers To Escape Poverty,? Huffington Post, January 9, 2017,

www.huffpost.com/entry/drc-child-soldiers_n_587000cee4b099cdb0fd2de0.

34. Guide to the Optional Protocol,? 3.

35. Tajudeen Oyewale,?Thousands of Children Continue to Be Used as Child Soldiers,? UNICEF, 2018

www.unicef.org/drcongo/en/press-releases/thousands-children-continue-be-used-child-soldiers.

36. Chakamba.

37. Michel Chikwanine, ?Child Soldier Author Michel Chikwanine Recounts His Story for Young Readers | CBC Radio.? CBCnews, CBC/Radio

Canada, (2018).


66

newfound environment where morals are disrupted. 38 In

fact, fear tactics are employed until child soldiers feel

obliged to kill and remain absolutely loyal to the militia:

?it is because of the war. When it?s the war, you don?t

choose.? 39

An important theme in the recollections of former child

soldiers is immense sadness or regret regarding a past that

they cannot change. As aforementioned, identifying the

perpetrators and victims of violence is complicated by the

problem of child soldiers. As in the case of the DRC, child

soldiers are pushed into positions where they have no

choice but to compromise their morals. 40 It is important to

clarify that these children are not empowered political

actors like the military leaders. They do not have the

strategic, ferocious mindsets of persons who initiate

warfare or justify cycles of violence. They rarely

demonstrate autonomy that legal responsibility demands. 41

These child soldiers follow orders to survive or find

momentary solace in a destructive landscape. They

respond to the exigencies of war and make compromises in

their attempts to save themselves and, on rare occasions, to

defend. As such, there is a palpable tension in considering

whether child soldiers are victims or criminals. However,

given that most child soldiers are forcibly conscripted and

threatened unless they commit ordered atrocities, and as to

not disregard nor diminish the fact that most children who

volunteer do so out of survival needs, some sort of

accountability should follow without going to the full

extent of trying children as adults. Realizing the vast

disparity between the autonomy of a child and an adult,

and creating binding international instruments respecting

that disparity, will better address the special issues of all


child soldiers, in addition to the community that must aid

in their rehabilitation. Adults at all levels ? from local

surroundings to international bodies ? must support the

children as they endeavor to enter healthy systems and

communities. 42

Recent Amnesty International research echoes that child

soldiers should not assume criminal responsibility. This

research illustrates cases of children who are drugged and

threatened with death if they do not comply with orders to

join the hostilities ? ?they gave us marijuana to change

our ideas,? reported one recently demobilized soldier.

Given these circumstances, child soldiers are not in

positions where they can freely control their actions.

Accordingly, Amnesty International proposes

accountability measures for the adult leaders. This would

place the interests of children above all and recognize the

vulnerability of this special category of soldiers. 43

The International Criminal Court and Looking to the

Future

The Democratic Republic of the Congo exposes the larger

implications of the human rights organizations, especially

since current legal tools do not uphold child rights. This

paper previously illustrated the challenge of enforcing

international laws in places, such as Africa, where the

political and social environment is plagued by conflict.

One potential solution beyond strengthening international

laws is the International Criminal Court (ICC).

The Rome Statute of the International Criminal Court

criminalizes the recruitment of children under fifteen or

using children to actively participate in hostilities.

?Participate? is meant to include both direct involvement

38. Honwana, 38.

39. Guide to the Optional Protocol,? 3.

40. Honwana, 50-51.

41. Francis, 217.

42. Honwana, 73.

43. ?Child Soldiers: Criminals or Victims,? Amnesty International, December 22, 2020,

www.amnesty.org/download/Documents/140000/ior500022000en.pdf.


67

in combat, as well as various military activities (e.g.

scouting, spying, sabotage, carriers, transporting food). 44

The ICC has endeavored to enforce relevant international

conventions and protocols relating to the rights of the

child. The tribunal is a formidable tool because it truly

necessitates that states take accountability and look

towards protecting children in conflict situations.

Additionally, having an international tribunal is more

effective than domestic institutions because it is a

presumably unbiased third party that won?t be influenced

by domestic politics. By providing an international

mechanism to hold perpetrators of human rights abuse

accountable, the ICC also works as a deterrent ? to

prevent potential, future military leaders from committing

future atrocities against children. 45

Congolese warlord Thomas Lubanga Dyilo was the first

individual to be brought to trial for the recruitment of child

soldiers. He commanded the Union of Congolese Patriots

(UPC), a militia active in Ituri in 1999. Lubanga was

charged with conscripting children under the age of fifteen

into the military wing of the UPC and using them in armed

conflicts between September 2002 and August 2003. 47

Lubanga?s trial opened on the 26th of January, 2009.

Opening the case for the prosecution, Luis Moreno

Ocampo declared: ?he committed some of the most serious


crimes of concern for the international community. Crimes

against children.? 48 Ocampo would go on to charge

Lubanga with not only the systematic recruitment of

children, but also ordering adult soldiers to beat or kill

children who did not follow commands. On the topic of

young girls, Ocampo detailed a horrifying account of their

experiences: ?one minute they would carry a gun, the next

minute the commanders will rape them.? 49 129 victims

partook in the landmark proceedings through legal

representatives. The guilty verdict eventually triggered the

Court?s reparations mandate for the first time in history. 50

Since the ICC?s establishment, the Lubanga ruling was the

first to be delivered. The warlord was sentenced to 14

years of imprisonment on the 10th of July, 2012. Before

the sentence was relayed, Geraldine Mattioli-Zeltner, an

international justice director at Human Rights Watch,

professed, ?The sentence against Lubanga should be fair

and reflect the gravity of the crimes for which he was

convicted. Lubanga?s sentence is important not only for

victims who want justice done, but also as a warning to

those who use child soldiers around the world.? 51 As

reflected in Geraldine?s statement, many international

organizations look to the ICC?s deterrent potential. The

court was founded on the notion of prevention and

deterrence goals. 52

44. ?The ICC Agrees: Children, Not Soldiers,? Coalition for the International Criminal Court, February 15, 2017,

www.coalitionfortheicc.org/news/20170215/icc-agrees-children-not-soldiers.

45. ?Establishment of an International Criminal Court - Overview,? Office of Legal Affairs, United Nations, 1999,

legal.un.org/icc/general/overview.htm.

46. ?Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, ? International Criminal Court, December 15, 2017,

www.icc-cpi.int/CaseInformationSheets/LubangaEng.pdf.

47. J. Oppenheim and Willem-Jan van der. Wolf, ?Global War Crimes Tribunal Collection. The Prosecutor v. Thomas Lubanga Dyilo: Part 1, Volume

V-I-I: The International Criminal Court.? Global Law Association, Global War Crimes Tribunal Collection. the Prosecutor v. Thomas Lubanga

Dyilo: Part 1, Volume V-I-I: The International Criminal Court, (2007).

48. Ibid.

49. Ibid.

50. ?Thomas Lubanga Dyilo,? Coalition for the International Criminal Court, accessed May 22, 2020,

www.coalitionfortheicc.org/cases/thomas-lubanga-dyilo.

51. David Smith, ?Thomas Lubanga Sentenced to 14 Years for Congo War Crimes,? The Guardian, July 10, 2012,

www.theguardian.com/law/2012/jul/10/icc-sentences-thomas-lubanga-14-years.

52. ?Establishment of an International Criminal Court - Overview.?


68

The conviction of Lubanga is recent enough that there is

little research on whether the ICC has established a

successful deterrent effect for the use of child soldiers.

However, the conviction of Lubanga has already impacted

the current conflict in eastern Congo, where rebel forces

are advancing toward the provincial capital of Goma. The

renegade general, Bosco Ntaganda, is wanted by the ICC

for recruiting child soldiers. Therefore, many international

organizations tie the arrest of Lubanga to focus on

longer-term legal deterrence and the entrenchment of

human rights norms. Prosecutions may have the ability to

dissuade future generations of military leaders from the

commission of these crimes. 53

Furthermore, the ICC case raises the expectation that

international laws protecting this special category of

soldiers are enforced. UNICEF has specifically referenced

this case, expressing that ?this is a pivotal victory for the

protection of children in conflict. The conviction of

Thomas Lubanga by the International Criminal Court

sends a clear message to all armed groups that enslave and

brutalize children: impunity will not be tolerated.? 54

Ultimately, the arrest of Lubanga highlights the vulnerable

position child soldiers are in and sets precedent for a future

of child protection laws. As a litany of international

organizations and non-governmental groups approach the

phenomenon of child soldiering, the work of the ICC

represents a hopeful prospect of states continuing to

mobilize and work to ensure accountability against persons

who recruit and control child soldiers. 55

Conclusion

The involvement of children in warfare is not a new


phenomenon. Nonetheless, child soldiering has gained new

dimensions because of changes in the nature of war and the

deepening involvement of children. Accordingly, the

phenomenon?s disruptive and lasting impacts have become

central to international humanitarian agendas. 56 Child

soldiers have been responsible for many human rights

abuses; many atrocities during warfare are carried out by

children, most of whom have been abducted and subjected

to horrifying acts of violence. 57 However, research

conducted in the Democratic Republic of the Congo

unveils that children have been drugged, brutalized, and

threatened with physical abuse or death if they do not

comply with orders to commit acts of violence. The social

crisis of protracted civil war and armed conflicts compels a

displacement of responsibilities from adults to children;

most international organizations recognize this vulnerable

position of the child soldiers. It makes little sense to hold

children criminally responsible when they are denied

autonomy.

In order to capture the need for justice and accountability,

this paper framed the question of responsibility with the

International Criminal Court case of Thomas Lubanga

Dyilo. The arrest of Lubanga represents a milestone in

child protection laws because the international community

criminally enforced their norms. This ICC case represents

a potential possibility for human rights law to uphold child

rights. Non-governmental organizations, in particular, are

looking to the ruling as precedent to argue that children

should not bear arms and that the adults who recruit them

into various armed forces and groups should be held

criminally culpable and prosecuted for war crimes. These

humanitarian groups have been enormously influential in

53. ?Child Soldiers: Criminals or Victims.?

54. ?In a Historic Judgment, the International Criminal Court Convicts Thomas Lubanga Dyilo of Recruiting Children into Armed Conflict,?

UNICEF, March 14, 2012, www.unicef.org/protection/57929_62002.html.

55. Francis, 221.

56. Honwana, 161.

57. Alexander De Waal, ?Child Victims of War in Africa? in Young Africa Realising the Rights of Children and Youth: Realising the Rights of

Children and Youth, (Trenton, NJ: Africa World Press, 2002), 105?107.


69

shaping the other international legal treaties that seek to

ban the use of child soldiers. 58


In summation, the analysis presented in the essay contends

that child soldiering is a clear violation of human rights.

The way forward lies in examining the limitations to the

international programs and the responsibility of military

leaders. The involvement of children in armed conflicts

and groups demands more effective developments to

protect this special, vulnerable group of soldiers.

58. Honwana, 163.


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