Brown Undergraduate Law Review — Vol. 3 No. 2 (Fall 2022)

Spring 2022 || Vol. 3 || No. 2 

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 

student-written and student-run journal of legal scholarship. 

1

https://www.brownulr.org/ 

2

BROWN 

UNDERGRADUATE 

LAW REVIEW 

Spring 2022 || Volume 3 || Issue 2 

Editorial Board and Staff 

UNITED STATES LAW 

ASSOCIATE EDITORS 

Noah Glickman '23 

(Section Head) 

Matt Grady '24 

Edan Larkin '23 

Hannah Ponce '22 

Sana Sinha '24 

FACULTY ADVISOR 

Ari Gabinet 

Watson Institute Senior Fellow 

Legal Expert in Residence at 

Brown University 

EDITORS-IN-CHIEF 

Ilana Duchan '23 

Sophia Matthews '22 

MANAGING EDITOR 

Chaelin Jung '23 

COPY EDITORS 

Dani Poloner '24 (Director) 

Ruqiya Egal '23 

Amber Fehrs '22 

Kate Harty '24 

Lucy Kaufman '22 

Annette Lee '23 

Nick Masi '24 

Kiara Moon '24 

Ellie Morvatz '25 

INTERNATIONAL LAW 

ASSOCIATE EDITORS 

Sonia Kelly-Manning '22 

(Section Head) 

Abigail Carbajal '23 

David Del Terzo '23 

Ariela Rosenzweig '24 

David Vojtaskovic '24 

DESIGN BOARD 

Rebecca Whang '24 

(Director) 

Nick Masi '24 

SPECIAL THANKS TO OUR PARTNERS: 

THE WATSON INSTITUTE FOR INTERNATIONAL AND PUBLIC AFFAIRS 

THE PRINCETON REVIEW 

3

A LETTER FROM 

THE EDITORS 

Dear Reader, 

We are honored to present the Spring 2022 issue of the Brown Undergraduate Law Review (BULR). 

This past 2021-2022 academic year provided the first opportunity for our entire team to collaborate 

together in Providence. Such in-person synergy has helped to fuel our many ongoing initiatives, which 

include not only our semesterly flagship journal, but also our Blog, Podcast, and distinguished guest 

speaker fora. We are grateful to our innovative staff for their dedication to increasing the accessibility 

of legal discourse at Brown University through such diverse and engaging enterprises. 

The BULR?s Spring 2022 issue is the fruit of our staff?s tremendous labor since January of this year. 

Blind review of this semester?s submissions resulted in the curation of perhaps the most diverse array of 

articles yet. Papers ranging in focus from micronational sovereignty to the labor rights of exotic 

dancers in Rhode Island are but a smattering of the compelling topics featured in this volume. These 

articles are not only riveting, but also relevant: daunting domestic and international legal questions 

abound. We publish the Spring 2022 journal against the backdrop of the overturning of Roe v. Wade; 

prolific gun violence across the United States and the ensuing implications for the right to bear arms; 

4

A Letter from the Editors 

flagrant human rights violations perpetrated around the world; and a global call for climate crisis 

accountability and mitigation. Our undergraduate authors offer incisive, interdisciplinary contributions 

to the legal and policy discourse surrounding today?s most pressing legal issues. The BULR remains a 

platform committed to advancing the pursuit of true justice. 

The BULR is indebted to mentors and community members who continue to support our organization. 

We extend our immense appreciation to BULR faculty advisor Ari Gabinet, Legal Expert in Residence 

at Brown University and Senior Fellow at the Watson Institute for International and Public Affairs at 

Brown University. We also thank the Watson Institute for its invaluable partnership and facilitation of 

our distinguished guest speaker events. Indeed, during the past semester, the BULR had the honor of 

hosting Judge Frank Caprio, Chief Judge of the Municipal Court of Providence and subject of the 

renowned television program Caught in Providence, and Danielle Holley-Walker, Dean of the Howard 

University School of Law and prominent scholar of education law and civil rights. Additionally, we 

express our gratitude to Professor Michael Vorenberg of the Brown University History Department, 

Editor-in-Chief Emeritus Jordan Kei-Rahn '21, and The Princeton Review for their ongoing advisory 

roles. And last but certainly not least, we celebrate our staff and contributing authors. The value of our 

organization is even greater than the sum of its invaluable constituent parts. 

With the approach of the Fall 2022 semester, the BULR will undergo a changing of the guard. We 

congratulate the incoming BULR Executive Board and are pleased to introduce Chaelin Jung ?23 as 

the publication?s incoming Editor-in-Chief. It is with great faith in our staff?s extraordinary capabilities 

that we pass the torch to the next cohort of BULR leaders. We are deeply humbled by and grateful for 

the opportunity to have led this organization over the past year, and it has been a pleasure to work 

alongside such a talented group of colleagues and mentors. We are confident that their thoughtfulness, 

creativity, and innovation will continue to drive the Brown Undergraduate Law Review?s pursuit of 

engaged legal scholarship. 

Sincerely, 

Ilana Duchan '23 Sophia Matthews '22 

Editors-in-Chief 

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TABLE OF 

CONTENTS 

Seeking Sovereignty: The Historic Politics of 

Micronational Recognition & Independence 

Deepak Gupta '22 

Rights and Accountability in the Post-9/11 Era: 

Habeas Corpus and the Guantanamo Bay Naval Base 

Caroline Allen '22.5 

Exotic Dancing in Rhode Island and Beyond: An 

Analysis of Legal Rights and Protections Under the 

First Amendment and the Fair Labor and Standards 

Act 

Olwyn Kells '23 

The Legal Precedents for Police Brutality: The 

Enduring Legacy of the Objective Reasonableness 

Standard 

Eunice Chong '22 

The Texas Fetal Heartbeat Statute and Whole 

Woman's Health v. Jackson: Unraveling the 

Procedural Dilemma and Rethinking a Way Forward 

Emma Blake '22 

DACA, DAPA, and a Political Battle in Court 

Carrie Deng '22 

Outsourcing Liability: The Legal Accountability of 

the Private Military Industry 

Laila Rodenbeck '22 

Race as the Right to Self-Defense: The Legal History 

Invoked by New York State Rifle & Pistol Association 

v. Bruen 


From Our Blog 

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. . . . . page 32 

. . . . . page 45 

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page 55 

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. . . . . page 82 

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page 112 

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SEEKING SOVEREIGNTY: 

THE HISTORIC POLITICS OF 

MICRONATIONAL RECOGNITION 

& INDEPENDENCE 

Deepak Gupta '22 

ABSTRACT 

Micronations are an often over-looked phenomenon in the realm of international relations. The circumstances 

behind their creation vary widely, as well as the seriousness of their leaders in achieving recognizing 

sovereignty. Despite this, no micronation has ever been officially recognized by a presently-recognized country 

of international body. A historical analysis of micronational relations with recognized governments reveals that 

the internal politics of the latter are a major determinant in the sovereignty of the former. If a micronation poses 

a threat to a country's internal politics, they exist in non-recognition or face external pressure to dissolve. Many 

follow the same path as the United States, for example, and declare independence, establish formal declaration 

of sovereignty over a piece of territory, and organize a government. Yet, a thorough review of multiple case 

studies reveals that their experiences are not the same. "Sovereignty" is therefore a political concept, 

as the fates of unrecognized micronations are determined by the will of the recognized world. 

Brown Undergraduate Law Review 

7

Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence 

Introduction 

In the middle of July 2019, 113 people from around the 

world met at the Marriott Courtyard Hotel in Ontario, 

Canada. 1 Attendees included diplomats, emissaries, and 

leaders from The Democratic Republic of Benjastan, 

Hurliherzistan, and the Republic of West Who. Although 

they dressed in regal clothing, wore unique flags, and held 

unfamiliar passports, none of the places they were 

representing can be found on a map. In fact, most people 

around the world have never even heard of these states. 

These representatives were all gathered for MicroCon 

2019, a biennial convention held by micronations. A 

micronation is a political entity that declares itself as 

?sovereign? yet remains unrecognized by established 

governments and international bodies. 2 As of 2021, there 

are over 400 existing micronations across the world. 3 The 

characteristics of a micronation can vary widely, with 

some claiming wide swaths of land and others 

?occupying? only a few square feet. 

Micronations are by no means a new phenomenon. They 

have cropped up all across the world throughout history, 

often for the purpose of social critique. One of the earliest 

occurrences in the United States was in 1949. A mining 

company from Wisconsin known as the ?Rough and Ready 

Company? settled an eponymous frontier town in Nevada 

County, California. 4 As their population grew, people 

became dissatisfied with increasing taxes and lawlessness. 

As a result, they issued an official declaration of secession: 

[W]e cease to be reduced to seeing our property and 

lives being taken over by those not of us, but those 

against us. Therefore, we the people, of the township 

of Rough & Ready, deem it necessary and prudential 

to withdraw from the Territory of California and from 

the United States of America to form, peacefully if we 

can, forcibly if we must, the Great Republic of Rough 

and Ready. 5 

Their citizens rejoined the Union three months later after 

nearby saloons refused to serve them, as they were 

?foreigners,? leading up to July 4th. Although brief, the 

existence of the Great Republic of Rough and Ready is 

representative of the experience of many micronations. 

They release documents proclaiming their freedom, 

independence, or sovereignty. Yet, their declarations 

remain unrecognized, and they are sometimes treated as 

political threats. They spend the rest of their existence 

either illegitimate, unknown, or dissolved due to 

unsustainable internal management. The legal history 

behind their battles for recognition across the world raises 

critical questions regarding the nature of sovereignty. 

In this paper, I will argue that historically, the politics of 

recognized governments have been the primary 

determinant of the micronational quest for sovereignty. I 

will review the legal basis underlying the micronational 

claim to sovereignty, the historic interactions between 

recognized and unrecognized governments via case studies 

(with a focus on micronations that critique hegemonic 

power), and assess the implications of these case studies 

on what it truly means to be ?sovereign.? 

Defining Sovereignty: The Montevideo Convention of 

1933 

In the constitutions of micronations, the term ?sovereign? 

appears multiple times. For instance, the Republic of 

Talossa, a small micronation spanning a few square feet in 

Milwaukee, Wisconsin, declares in their constitutional 

1. ?Home,? MicroCon 2019, December 22, 2021, https://www.microcon2019.com/. 

2. Not Exactly Normal, ?These People Started Their Own Countries, and So Can You,? October 08, 2019, https://www.youtube.com/watch?v=kiHSnFPGqjg. 

3. Benjamin Elisha Sawe, ?What is a Micronation?? WorldAtlas, April 25, 2017, https://www.worldatlas.com/articles/what-is-a-micronation.html. 

4. Adam Clanton, ?The Men Who Would Be King: Forgotten Challenges to U.S. Sovereignty,? UCLA Pacific Basin Law Journal 26, no. 1 (2008): 17, 

https://escholarship.org/uc/item/5bz3b5xn. 

5. Clanton, 18. 


8

preamble, ?We Talossans hereby declare that we are a free 

people and a free community and, above all, a free nation 

dedicated to Talossan ideals. THEREFORE the sovereign 

and right government of the Republic of Talossa enacts as 

follows. . . .? 6 Even though one can walk through the entire 

territory of Talossa in seconds, the founder still adopts 

language declaring its freedom. 

The legal basis for claiming sovereignty stems from the 

treaty signed at the Montevideo Convention on the Rights 

and Duties of States. 7 The Montevideo Convention, hosted 

in Uruguay in 1933 and signed by the United States and 

multiple Latin American countries, established the 

definition of a state under international law to codify 

existing norms and practices and clarify the difference 

between a state and non-state. 8 Although this international 

agreement was meant to ensure respect for political 

boundaries and non-intervention in foreign affairs, the 

Montevideo Convention became critical in allowing for the 

continued emergence of micronations. According to the 

Encyclopedia of Westarctica (a micronation), the treaty 

claims that a political entity only has to declare 

sovereignty to achieve it. Therefore, ?most micronations 

consider their public declaration of sovereignty to be 

evidence enough of their status as a sovereign nation.? 9 

Further textual evidence in Articles III & IV of the treaty 

confirms this legal basis for the recognition of 

micronations: 

Article III. The political existence of the state is 

independent of recognition by the other states. Even 

before recognition the state has the right to defend its 

integrity and independence, to provide for its 

conservation and prosperity, and consequently to 


organize itself as it sees fit, to legislate upon its 

interests, administer its services, and to define the 

jurisdiction and competence of its courts. 

The exercise of these rights has no other limitation 

than the exercise of the rights of other states according 

to international law. 10 

Article IV. States are juridically equal, enjoy the same 

rights, and have equal capacity in their exercise. The 

rights of each one do not depend upon the power 

which it possesses to assure its exercise, but upon the 

simple fact of its existence as a person under 

international law. 11 

Article III of the Convention implies that a micronation 

does not need any recognition to consider itself a ?state.? 

In addition, Article IV ensures that micronations, despite 

their small size, have the same amount of influence as their 

recognized counterparts. The Montevideo Convention?s 

definitions seemingly provide a strong legal foundation for 

leaders of unrecognized nations to achieve recognition. 

With recognition, micronations can integrate themselves 

into international organizations, like the United Nations, 

and establish formal diplomatic relations across the world. 

Yet, ensuring compliance with the Convention remains 

complicated for two reasons. The first is that micronations 

vary in their levels of seriousness. Some people establish 

their own country purely for leisure, whereas others do it 

more seriously in an attempt to critique the recognized 

world. On his micronation?s website, the President of 

Molossia notes that this large variation within 

micronations affects the legitimacy with which they are 

perceived. 12 For the purposes of this paper, I will be 

focusing on these two types of micronations (i.e. those 

created for leisure and those created for critique) and their 

6. The Republic of Talossa, ?Proclamation of Independence,? TalossaWiki, June 1, 2004, http://wiki.talossa.com/images/f/f7/A_Nation_Sundered.pdf. 

7. Harry Hobbs and George Williams, ?Micronations: A Lacuna in the Law,? International Journal of Constitutional Law 19, no. 1 (2021): 73, 

https://academic.oup.com/icon/article/19/1/71/6247754. 

8. The Editors of Encyclopaedia Britannica, ?Montevideo Convention,? Encyclopædia Britannica, December 22, 2021, https://www.britannica.com/event/Montevideo-Convention. 

9. ?Montevideo Convention,? Encyclopedia Westarctica, November 4, 2019, https://www.westarctica.wiki/index.php?title=Montevideo_Convention. 

10. United Nations, Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States, 3802 (December 26, 1933), 

https://treaties.un.org/pages/showdetails.aspx?objid=0800000280166aef. 

11. Ibid. 

12. Kevin Baugh, ?How to Start Your Own Micronation,? Molossia.org, December 22, 2021, http://www.molossia.org/howto.html. 


9


experiences in seeking sovereignty. Furthermore, 

recognizing micronations under the Montevideo 

Convention is a rarity because of how the establishment of 

these new entities can conflict with the internal politics of 

recognized nations. In the following section, I will further 

explore how domestic American interests have always 

shaped the relationship between the United States and 

micronational sovereignty. 

The Discovery Doctrine & Politics of Sovereignty: 

Swains Island 

One of the earliest legal policies regarding statehood and 

sovereignty in the United States came from Johnson v. 

M?Intosh (1823). In this landmark case, Chief Justice 

Marshall found that the United States would not recognize 

attempts by Native Americans to transfer their land to 

white settlers. 13 The case also established the ?discovery 

doctrine,? in which the discovery and subsequent 

occupation of a previously ?undiscovered? territory were 

sufficient criteria for a legitimate claim to that land - thus 

granting sovereignty. The Supreme Court?s ruling in 

Johnson became essential in ensuring the expansion of 

American imperialism. 14 This same case defined the U.S. 

relationship with one of the earliest micronations: Swains 

Island. 

Swains Island is located 200 miles north of Samoa and 

spans just 1.25 square miles. 15 In 1840, Captain W.C. 

Swain, a whaler from Massachusetts, believed he was the 

first white man to ?discover? the island, giving it its 

namesake. At around the same time, an Englishman 

arrived in Samoa and claimed that he had been the first 

white man to visit Swains Island. Based on his ownership 

via ?discovery,? a globally recognized principle linked to 

colonialism, the Englishman agreed to sell his title to 

Swains Island to an American named Eli Hutchinson 

Jennings. 

On October 13, 1856, Jennings and his wife landed on 

Swains Island, raised an American flag, and began their 

new lives. Despite Jennings?American flag, the question 

of which country had jurisdiction over their territory 

remained unanswered for decades. In 1909, England 

collected $85 in taxes from Jennings. He protested the 

collection by claiming ?his island belonged to the United 

States,? and the British government ?conceded his 

American nationality and that Swains was an American 

island,? subsequently returning the money. 16 In reality, the 

United States Department of State did not officially 

recognize Swains Island as a U.S. territory. 17 After the 

death of Eli Jennings Jr., his son Alexander attempted to 

probate his father?s will, transferring the title of the island 

to himself. He went to the nearby High Court of American 

Samoa, but he was turned away after the judge said the 

American Samoan government did not have jurisdiction 

over the estate. 18 In 1924, Jennings reached out to the 

United States for help. In a letter from Secretary of State 

Charles Evans Hughes to President Calvin Coolidge, 

Hughes admits that: 

It is not clear whether Swains Island was ever in fact 

discovered and occupied with the sanction of the 

United States . . . [and that] it is an unsettled question 

whether this Government could well maintain a claim 

to sovereignty over the island, based on the mere 

occupation thereof by a private citizen. 19 


14. Jedidiah Purdy, ?Property and Empire: The Law of Imperialism in Johnson v. M?Intosh,? George Washington Law Review 75, no. 2 (February 

2007), 331, https://scholarship.law.duke.edu/faculty_scholarship/1837/. 



17. Ibid. 

18. Ibid., 11. 

19. Ibid. 


10

Still, Hughes recommends to President Coolidge that he 

apply the discovery doctrine from Johnson and seize the 

territory: 

Since 1856 [Swains has] been continuously in the 

possession of the Jennings family, who have always 

regarded themselves as American citizens. . . . [It] 

would seem to place upon this Government the 

responsibility either of extending its sovereignty over 

Swains Island . . . or of disclaiming the exercise of any 

control or jurisdiction over the island and the 

inhabitants thereof. 20 

The case of Swains Island highlights how sovereignty can 

mean extremely little without the influence of a country 

with political capital. Although the Jennings family 

claimed ownership over their island and asserted that it 

was an American territory, the family had no means to 

enforce this. If Hughes had not convinced Coolidge to 

assert the country?s jurisdiction over Swains Island, then 

Alexander Jennings would have been left helpless in his 

attempt to probate his father?s will. Swains Island and the 

Jennings family are a ?responsibility? of the American 

government. Moreover, this particular case underscores 

how political motives influence the determination of 

sovereignty. Using the fact that one American family had 

resided on the island for generations and held ownership 

over it via ?discovery,? the government recognized and 

claimed it? likely for the sole purpose of territorial 

expansion. Swains Island essentially functioned akin to a 

micronation, and a recognized government only accepted it 

when it benefited their political interests. 

Security Versus Sovereignty: Atlantis, Isle of Gold, and 

Grand Capri Republic 

To understand how internal politics can negatively 

influence the United States?perception of sovereignty and 


relationship with micronations, I will analyze the cases of 

Atlantis, Isle of Gold and the Grand Capri Republic. In 

1962, William Anderson ?discovered? a group of partially 

submerged reefs 10 miles off the coast of Miami. 21 

Intending to develop the territory into a hotel and casino, 

he partnered with Atlantis Development Corporation in the 

Bahamas to realize his vision. When attempting to notify 

the State of Florida of the project, the state government 

told them that the reef lay outside the constitutional 

boundaries of the State and was therefore outside of its 

jurisdiction. They received a similar response from the 

federal government. Knowing that no other nation had 

staked a claim to the land, Anderson gathered a group of 

billionaires in Miami Beach and confirmed his plans to 

establish ?Atlantis, Isle of Gold.? 22 At the same time, a 

man named Louis Ray intended to achieve a similar feat. 

He aimed to develop a different set of reefs, also near 

Miami, and declare it his own island nation entitled, 

?Grand Capri Republic.? 23 In April 1965, as Ray and 

Anderson began developing their respective reefs, political 

concerns about the possibility of new American neighbors 

near the coast began to grow. As a result, the U.S. 

government suddenly brought charges of trespassing and 

construction without an Army Corp of Engineers permit 

against Ray. 24 Atlantis attempted to intervene in the case in 

Ray?s favor on behalf of Anderson. The American 

government also sought a permanent injunction 

against any further island development. This ultimately 

culminated in the case of United States v. Ray 

(1965) in the Southern District of Florida. 

First, the district court found that the newly discovered 

reefs could not constitute an ?island nation.? 

20. Ibid. 

21. Ibid., 12. 


23. Ibid. 


11


Citing precedent from United States v. California (1947), 

the district court determined that an ?island? is defined as a 

?naturally formed area of land surrounded by water, which 

standardized discipline measures, police presence in 

schools increased, along with referrals to juvenile courts. 25 

Since the reefs had long been naturally submerged below 

water, they failed to meet this criteria. Moreover, the 

district court determined that Atlantis, Isle of Gold and the 

Grand Capri Republic lay on the ?subsoil and seabed? of 

the outer Continental Shelf as defined by the Outer 

Continental Shelf Lands Act (1953) and the Geneva 

Convention (1949) on the Continental Shelf. 26 The United 

States does not own this seabed, yet under the Geneva 

Convention, ?the coastal State [nation] exercises over the 

continental shelf sovereign rights for the purpose of 

exploring it and exploiting its natural resources? and that 

?no one may undertake these activities . . . without the 

express consent of the Coastal State.? 27 Finally, under 43 

U.S.C. § 1332(a) of the Lands Act (1820), Congress 

determined that the subsoil and seabed of the outer 

Continental Shelf are subject to U.S. jurisdiction. 28 

Therefore, the district court determined that the United 

States had authority under domestic and international law 

to reject the sovereign discovery claims of Ray and 

Anderson?s projects. 

Atlantis, Isle of Gold, and the Grand Capri Republic faced 

drastically different fates compared to Swains Island. Ray 

and Anderson?s projects demonstrate how political 

concerns of pre-existing nations can hinder the quest for 

sovereignty. This is most evident in the last paragraph of 

the court?s opinion in United States v. Ray. The court 

admits that while the preservation of rights to natural 

resources is of concern, national security is another 

important consideration: 

The issues of this case are of great public interest, 

involving not only the preservation of rare natural 

resources, but the preservation of our very security as a 

nation. If these reefs were available for private 

construction totally outside the control of the United 

States Government, they could conceivably support 

not only artificial islands and unpoliced gambling 

casinos, but even an alien missile base, all within a 

short distance of the Florida Coast. Congress has seen 

fit to claim this area so that it may be used for the 

Commonwealth rather than private gain. 29 

The court?s mention of the ?preservation of our very 

security? reveals how a legitimate claim to sovereignty is 

not the only aspect of these new islands that the court 

considered. Instead of discussing whether Ray had the 

right to his unclaimed territory, the judges focus on the 

extreme hypothetical of an ?alien missile base? being built 

on the island. United States v. Ray suggests that if a 

micronation poses a potential risk to the United States, this 

takes precedence over the right of such micronations to 

exist. Although the validity of the discovery doctrine was 

relevant in this case, the political considerations of 

dominant countries triumphed over sovereignty. 

The downfall of these two micronations also raises 

questions regarding the link between sovereignty and 

nationhood. With undiscovered land and plenty of 

financial resources, both Ray and Anderson could have 

easily continued with the reef development and created 

habitable environments. Their respective states would have 

looked like part of Florida, yet they would have lacked the 

political and social structures characteristic among 

recognized countries. In United States v. Ray, Ray is 

24. Ibid. 

25. United States v. Ray, 294 F. Supp. 532 (S.D. Fla. 1969). 


27. Ray, 294 F. Supp. at 536. 

28. Ibid. 

29. Ibid., F. Supp. at 541. 


12


quoted as asking a crucial question about what defines 

nationhood: 

I went out there and I sat on that Island and I built 

these caissons and a house and I was going to put a 

family in the house and I [was] going to make some 

semblance of a defense. And don't get me wrong by 

saying if I am going to attack the Coast Guard or 

Navy, but I was going to have some semblance of a 

defense and I was going to build it and claim it . . . and 

I was going to own it. Now, am I a nation? Me and 

four investors? 30 

Given the wide variation in the types of micronations that 

exist, it is important to consider what may make some 

more deserving of recognized sovereignty than others. If 

an extremely wealthy patron like Ray or Anderson can 

create a country in an unclaimed territory, is there a level 

of development that qualifies it to be recognized as a 

country? As Ray asks, can a small group truly constitute a 

new country? Although the court fails to substantially 

answer these types of questions, Atlantis, Isle of Gold, and 

the Grand Capri Republic are important historical 

examples that interrogate how statehood and sovereignty 

should be defined. 

Sovereignty via Secession: The Principality of Sealand 

Many micronations seeking sovereignty choose to do so as 

a form of critique against politically dominant countries. 

Individuals, usually dissatisfied with government control 

or inaction in certain areas, choose to create their own 

country in the hope that they will be able to live new 

lifestyles. In actuality, the success of these types of efforts 

is largely dependent on external politics. 

One well-established case of this sovereignty via secession 

is the Principality of Sealand. In the 1960s, the British 

Broadcasting Company maintained a legal monopoly over 

radio broadcasting. 31 As a result, several pirate radio 

stations (i.e., radio stations operating without a legal 

license) emerged from outside the United Kingdom?s 

territorial waters. In 1967, Roy Bates, the pirate 

broadcaster of ?Radio Essex? moved his operations to 

Roughs Tower, a naval fort located off the coast of 

Suffolk. 32 A few months later, the UK closed the legal 

loophole allowing pirate radio stations to operate. As a 

result, Bates remained on Roughs Tower and declared 

himself the ruler of the Principality of Sealand, which 

spanned the entirety of the tower, on September 2, 1967. 

The UK government largely ignored Bates?s declaration of 

sovereignty until an incident in May 1968, in which his 

son fired a pistol in the direction of lighthouse staff 

working on a nearby buoy. 33 The government indicted 

Bates and his son for violations of the Firearms Act 

(1968). Yet, a High Court judge dismissed the case, writing 

that ?although the Parliament possessed ?the power to 

make it an offense for a British subject to have a firearm 

with intent to endanger life in Istanbul or Buenos Aires, or 

where have you,? it had not done so in this case; the 

Firearms Act was held to ?operate only within the ordinary 

territorial limits.?? 34 Bates considered this de facto 

recognition of Sealand?s independence. 35 Conversely, 

although the UK government remained bothered by 

Bates?s actions, it concluded that he was doing no actual 

harm. As a result, there were no pressing reasons for 

evicting him either through force or legislation. As long as 

Bates and his son did not stir up significant trouble, the 

government would allow them to remain. 

The Principality of Sealand remains an example of how the 

response of a recognized country to the emergence of a 

micronation is heavily linked to politics. In fact, during 

Sealand?s early stages of development, ministers worried 

about a possible ?Cuba off the east coast of England.? 36 

30. Ibid., F. Supp. at 535. 

31. Hobbs & Williams, 82. 

32. Ibid. 

33. Ibid., 95. 

34. Ibid. 

35. Ibid. 

36. ?About The Principality of Sealand,? Sealand, Principality of Sealand, 2021, https://sealandgov.org/about/. 


13


Only after the firearm incident did the government decide UK should have ignored its political considerations, 

that Sealand could exist, albeit with its sovereignty recognized Sealand?s right to secede, and allowed Sealand 

unrecognized. 

to exist peacefully. After all, if the Founding Fathers can 

declare independence and build a government, why can 

In addition, Sealand?s emergence through rebellion 

Roy Bates not? 

redefines their justification for sovereignty. Whereas 

Atlantis and Grand Capri Republic sought to achieve Fighting to be Heard: Principality of Hutt River & 

recognition by meeting the basic development criteria for Grand Duchy of Westarctica 

statehood, Sealand?s claim stems from the right to secede. 

Although the previous historical case studies mention 

Sealand?s website insists that it ?was founded on the 

micronations with embattled histories involving 

principle that any group of people dissatisfied with the 

recognized countries, the reality is that most countries take 

oppressive laws and restrictions of existing nation-states 

little action against micronations. This can become 

may declare independence in any place not claimed to be 

particularly frustrating for the leaders of micronations who 

under the jurisdiction of another sovereign entity.? 37 Like 

want to be taken seriously. 

many recognized countries, Sealand?s desire for 

independence began from its founders?dissatisfaction with 

One prominent example of this is the Principality of Hutt 

their current system of governance. Admittedly, Sealand is 

River in Australia, which was established in 1970. In the 

not entirely comparable to other places that have seceded 

1960s, farmer Leonard Casley purchased a property at Hutt 

and become nations, like the United States and South 

River intending to build a wheat farm. 39 He planned to 

Sudan, because it lacks the same complex social and 

harvest around 6000 acres of wheat. However, in 1969, the 

political systems these countries possess. Yet, its motive 

Western Australian government became concerned with 

for declaring independence is also based on a claim of 

oversupply and price reductions in wheat and subsequently 

oppression. 

established a quota. As a result, Casley could only sell 100 

acres. Frustrated, Casley issued a notice of secession to the 

In a 1976 interview, Ed Welles, the leader of the 

Australian government and officially declared a new state, 

micronation Oceanus, highlights this overlap between the 

the Principality of Hutt River, in 1972. 40 

recognized and unrecognized world: ?Look, how does any 

Similar to Sealand, the Principality of Hutt River?s desire 

government start out? Somebody says, ?I?m a baron, pay 

for sovereignty came from dissatisfaction with a 

me taxes,?and he?s in business. The U.S.A. said, ?We are,? 

recognized government. However, Casley went to greater 

and the country was born. In 1970 eight people said, ?We 

lengths to invoke the attention of his micronation?s nearby 

are,? and there was Oceanus.? 38 Just as Ray questioned 

country. In 1977, after receiving numerous 

whether wealth justified sovereignty, Welles expresses his 

communications from the Australian Taxation Office 

belief that sovereignty is a simple process in which what 

insisting that he pay his taxes, self-declared Prince 

matters most is a concentrated desire for independence 

Leonard issued a declaration of war against Australia. 41 

among a group of people in a territory. By this logic, the 

Two days later, he declared that the war was over and 

37. William Yardley, ?Roy Bates, Bigger-Than-Life Founder of a Micronation, Dies at 91,? New York Times, October 13, 2012, https://www.nytimes.com/2012/10/14/ 

world/europe/roy-bates-founder-of-sealand-dies-at-91.html?searchResultPosition=1. 

38. Roy Bongartz, ?Nations Off the Beaten Track,? New York Times, March 28, 1976, https://www.nytimes.com/1976/03/28/arc39. 


40. Ibid. 

41. Ibid. 


14


stated that he welcomed diplomatic relations with 

Australia and the supervision of the United Nations over 

their interactions: 

It is my official duty to advise you that the state of war 

between our countries has now ceased and our 

government will accept diplomatic relations with your 

Government in order to endeavor to achieve the 

desired mutual cooperation as is befitting sovereign 

countries international relations which follows the now 

present situation from the laws of war wherein even 

after a situation of one day of declared war it follows 

upon cessation absolute sovereignty to the respective 

countries. Please have your governments obey now the 

laws of war or jointly call for the United Nations to 

supervise all relationships between our respective 

countries. 42 

To achieve recognition of the Principality of Hutt River?s 

sovereignty, Casley invoked international norms. By 

declaring and quickly ending a non-aggressive war only 

lasting a few days, he intended to force Australia to follow 

diplomatic rules and establish relationships with his 

micronation. Casley further resolved this conflict by 

paying fees to the Australian government afterwards. 

However, in official documents, he characterized this as 

?an annual gift, a goodwill gesture to the local community, 

international courtesy, or a donation.? 43 Although the 

Australian government paid little attention to Casley?s 

declaration, it demonstrates the drastic lengths that 

micronations have been willing to go to for recognition. 

Declaring war in order to receive some acknowledgment 

emphasizes the micronational attempt to triumph over the 

bureaucracy behind the quest for sovereignty. 

The founding of the Principality of Hutt River is made 

more perplexing given the Australian government?s 

internal admission, written in a declassified cable telegram, 

that Casley had not ?contravened any Australian law.? 44 In 

another declassified document, labeled Austeo Secret, the 

Australian Department of Territories writes to the Prime 

Minister admitting that Prince Leonard is exempt from 

Australian tax law and the micronation?s passports are 

valid. 45 It also notes that the Prime Minister should ?at all 

costs contain this situation.? 46 Unlike many other 

micronations, the Principality of Hutt River holds these 

documents as explicit evidence regarding the legality of 

their claims of sovereignty. However, this is entirely 

subverted by the government?s perception of Casley as a 

threat. Leonard Casley did not break any laws, yet 

Australia?s political considerations took precedence over 

his Principality?s right to be independent. 

The struggle for acknowledgement is also present with 

Westarctica, another micronation established as a social 

critique. In 2001, Travis McHenry was reading about 

Antarctica?s political status in a CIA World Factbook when 

he read that ?no formal claims have been made in the 

sector between 90 degrees west and 150 degrees west.? 47 

McHenry thought that since no one had staked claim to the 

swath of land in West Antarctica, he had a right to do so. 

In a letter to the U.S. Department of State?s Office of 

Oceans and Polar Affairs, McHenry writes, ?The purpose 

of this acquisition is to secure the territory for research and 

development and future colonization. Also, to protect it 

from those parties that would exploit the territory with 

42. Leonard Casley, ?Telegram to the Commonwealth of Australia,? Telegram to the Commonwealth of Australia §, December 22, 2021, http://www.principalityhutt-river.org/Principality%20Downloads/Historic%20Documents/HRP%20Vs%20Australia%20State%20of%20War%20documents.pdf. 


44. ?Outward Cablegram,? Outward Cablegram § (1976), http://www.principality-hutt-river.org/Principality%20Downloads/Historic%20Documents/Facts%20on% 

20Secession/Aust%20Govt%20cablegram%2027%20May%201976.pdf. 

45. ?Austeo Secret,? Austeo Secret § (1976), http://www.principality-hutt-river.org/Principality%20Downloads/Historic%20Documents/AUSTEO%20SECRET% 

20Document.pdf. 

46. Ibid. 

47. ?The Story of Westarctica,? Westarctica, December 22, 2021, https://www.westarctica.info/our-story. 


15


misdeeds. The intentions beyond that are my own.? 48 

After initially losing interest in the project, in 2004, 

McHenry formalized the establishment of a new country: 

The Grand Duchy of Westarctica. After years of rule, 

however, McHenry realized that his advocacy efforts could 

be made much more effective if Western Antarctica 

decided to become a nonprofit corporation. As a result, in 

2014, McHenry filed with the State of California to make 

Westarctica Incorporated a legally recognized nonprofit. In 

fact, after making this move, Westarctica was granted 

non-consultative status as a non-governmental 

organization by the UN Department of Economic and 

Social Affairs in 2015. 49 Westartica?s website still firmly 

states that it seeks to ?engage technology and people in 

service of the environment while pursuing sovereignty for 

Western Antarctica.? 50 

Once again, the notion of sovereignty emerges in the 

context of a micronation seeking international recognition 

from pre-existing states and political bodies. Although it 

currently exists as a nonprofit corporation, Westarctica still 

maintains a diplomatic team designed for building global 

relationships and achieving recognition. Most recently, 

Westarctica?s Facebook proudly posted a letter they had 

received from the King of Cambodia, in which he thanked 

the country for sending good wishes on his birthday. 51 

Although this seemed like a simple interaction, the 

Westarctican government recognized it as much more, 

writing, ?Although this is not the first letter Westarctica's 

government has received from a reigning monarch, it is the 

first time an internationally recognized Head of State has 

specifically mentioned Westarctica, the Grand Duke, and 

our Foreign Minister in written correspondence.? 52 The 

interaction was also added to the Encyclopedia Westarctica 

as a notable diplomatic interaction. 53 Westarctica has 

clearly made any and all attempts to seek official 

acknowledgment from the recognized world. Similar to the 

Principality of Hutt River, it views diplomatic relations as 

essential for sovereignty. For Westarctica especially, 

recognized sovereignty is intrinsic to its mission. The quest 

to protect Western Antarctica from climate change and 

preserve the environment requires large-scale 

coordination and international collaboration. Without 

recognition from others, Westarctica?s sovereignty is 

limited to a largely unknown digital presence. 

Micronations vs. Micro-States: The Republic of 

Minerva 

I previously iterated how the political interests of a 

recognized nation influence its assessment of a 

micronation?s sovereignty. For this final case study, I will 

similarly review the founding of the Republic of Minerva 

and how the nearby country of Tonga led to its demise. 

However, this case is unique in that the presence of this 

micronation posed a genuine political threat. 

In the 1970s, wealthy real estate mogul Michael Oliver 

began developing two submerged atolls (i.e. a ring-shaped 

reef/coral) in the Pacific Ocean. He aimed to create the 

Republic of Minerva, a new state that would be free of 

government interference, taxation, and social welfare. 54 On 

January 19, 1972, Oliver issued an official Declaration of 

Sovereignty to neighboring nations. Yet, the Prime 

Minister of Tonga, Prince Tuiplehake, expressed concern 

over the Republic of Minerva?s inception. Tonga relied on 

the same reef area for food and resources, and Oliver?s 

activities in the South Pacific could disrupt Tonga?s way of 

life while creating pollution. 55 In Tuiplehake?s words, 

48. Ibid. 

49. Ibid. 

50. Ibid. 

51. Government of Westarctica (Westarctica), ?Letter From King Of Cambodia,? Facebook (Post), September 14, 2020, https://www.facebook.com/Westarctica/photos/a.610528955746915/21 

52937611506034/. 

52. Ibid. 

53. ?Foreign Relations of Westarctica,? Encyclopedia Westarctica, March 11, 2022, https://www.westarctica.wiki/index.php?title=Foreign_relations_of_Westarctica. 

54. Lili Song, ?The Curious History of the Minerva Reefs: Tracing the Origin of Tongan and Fijian Claims Over the Minerva Reefs,? The Journal of Pacific History 54, no. 3 (2019): 421, 

https://doi.org/10.1080/00223344.2019.1573664. 

55. Samuel Pyeatt Menefee, ??Republics of the Reefs:?Nation-Building on the Continental Shelf and in the World?s Oceans,? California Western International Law Journal 25, no. 1 (1994): 

97, https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1341&context=cwilj. 


16

which are largely reminiscent of England?s comparison of 

Sealand to Cuba, ?We can't have people setting up empires 

on our doorstep.? 56 

In response to Minerva?s Declaration of Sovereignty, the 

Kingdom of Tonga asserted that Tonga had claimed the 

land long before Oliver did. First, Prince Tuiplehake 

contended that Minerva was unofficially claimed for Tonga 

on November 24, 1966, when a mariner who visited the 

spot left a Tongan flag attached to a buoy. 57 

His 

government took additional steps to assert its sovereignty 

over the land by erecting Tongan statues while tearing 

down the Minervan flag whenever officials saw it. On June 

15, 1972, Tuiplehake announced his intention to exercise 

territorial rights over the reefs that Minerva had previously 

claimed: 

WHEREAS the Reefs known as North Minerva Reef 

and South Minerva Reef have long served as fishing 

grounds for the Tongan people and have long been 

regarded as belonging to the Kingdom of Tonga has 

now created on these Reefs islands known as Teleki 

Tokelau and Teleki Tonga; AND WHEREAS it is 

expedient that we should now confirm the rights of the 

Kingdom of Tonga to these islands; THEREFORE we 

do hereby AFFIRM and PROCLAIM that the islands, 

rocks, reefs, foreshores and waters lying within a 

radius of twelve miles [19.31 km] thereof are part of 

our Kingdom of Tonga. 58 

In September 1972, a group of countries in the Pacific 

Ocean issued a press communiqué of support: 

[m]embers of the Forum recognised Tonga?s historical 

association with the Minerva Reefs, welcomed the 

Tongan Government?s continuing interest in the area 

and agreed that there could be no question of 


recognising other claims, and specifically that of the 

Ocean Life Research Foundation, to sovereignty over 

the reefs. 59 

The government also informed the leadership of Minerva 

that ?any attempt by any of our group to land on the reefs 

would result in . . . [removal] by force . . . and . . . [a] trial 

for trespassing on Tongan territory. . . . [To maintain its 

claims to the reefs] . . . Tonga was prepared to go . . . ?[t]o 

any extent short of war.?? 60 When a small group of Tongan 

soldiers arrived on the island in 1972, development efforts 

halted and the Kingdom of Tonga officially absorbed the 

territory. 61 

Once again, sovereignty in the case of the Republic of 

Minerva heavily relied on the micronation?s interactions 

with other nations. Both Minerva and Sealand conflicted 

with nearby countries. However, Sealand continued to 

exist because the UK government did not believe that the 

sovereignty claimed by Bates would pose a legitimate 

threat to their country. 

Conversely, the threats and 

competing claims made by the Kingdom of Tonga, as well 

as support from other Pacific Nations, facilitated the 

dissolution of the Republic of Minerva. The Republic of 

Minerva would have posed a much greater threat to Tonga 

than Sealand did to the UK, as Tonga is a small country 

that is extremely reliant on natural resources. Granting the 

Republic of Minerva recognized sovereignty would have 

likely threatened Tonga?s way of life. Just as the district 

court did in United States v. Ray, the Kingdom of Tonga 

considered the ?preservation of [their] very security? over 

sovereignty. It is critical to consider how sovereignty 

should be weighed against the welfare of existing 

56. Menefee, 19. 

57. Menefee, 99. 

58. Song, 424. 

59. Ibid., 427. 

60. Menefee, 101. 

61. Ibid. 


17


countries, though the case of Ray concerned continued 

hegemony rather than climate and welfare protections. 

Because Tonga would have faced fundamental harm due to 

a micronation, the Kingdom?s leadership and its allies 

justified their competing claim of jurisdiction. 

Furthermore, the Republic of Minerva?s construction also 

raised concerns among established nations regarding the 

precedent it would set. A 1972 Newsweek article states: 

[B]oth sides have stiffened. The Minervan 

entrepreneurs insist that despite the King?s claim that 

the reefs are vital to Tonga-Australian shipping, they 

have been ignored for centuries. The developers say 

they have already plunged upwards of $200,000 into 

the project, and last week the Minervans were in New 

Zealand reportedly fitting out a ship for yet another 

trip to the reefs. If no solution can be found, the hassle 

may come before the United Nations. That could cause 

some unique problems-for there are few precedents 

covering the creation of a nation out of nothing. 

?Heaven forbid for this kind of thing to happen,? says 

one British diplomat in the Pacific. ?We?ll have every 

crackpot with an ounce of imagination claiming 

sovereignty over every last scrap of unclaimed land. 

The next thing you know, they'll be demanding loans 

from the World Bank.? 62 

The diplomat raises the concern that with the Republic of 

Minerva, civilians would begin claiming uninhabited 

territories across the world. While this may not always be 

detrimental, as shown in the case of Sealand, it can 

certainly pose a threat to smaller countries. The diplomat?s 

quote also highlights his understanding of sovereignty as 

something much more complex than a simple declaration 

of independence or freedom. By saying that not ?every 

crackpot with an ounce of imagination? can claim 

sovereignty, he suggests that even if an unrecognized 

micronation meets technical criteria for statehood, there 

are other considerations required for sovereignty. 

Conclusion 

Altogether, a legal and historical analysis of micronations 

reveals how the sovereignty of any new political body is 

dependent on the political interests of recognized 

countries. The principles for establishing sovereignty and 

subsequent legitimacy have always been defined and 

determined by pre-existing nations. The internal politics 

and interests of recognized governments have always taken 

precedence in the micronational quest for sovereignty. 

Even if leaders of these entities follow the necessary rules 

for state-building, countries will only lend them attention if 

they pose a threat. Otherwise, their sovereignty will remain 

unrecognized. The plight of micronations across the world 

raises multiple questions regarding what it means for a 

group of individuals to claim itself as ?sovereign.? While 

the precedent has been for countries to prioritize domestic 

security over the sovereignty of another state, this can 

become problematic when analyzing micronations seeking 

to secede from a country in protest or rebellion of said 

country?s methods of governance. Many micronations may 

lack the social and political systems required to build an 

official country; however, in principle, the essence of their 

claims to independence is no different from that of plenty 

of countries in the recognized world. Their troubled 

histories are indicative of how international standards for 

declaring independence and sovereignty must be further 

concretely identified. Otherwise, they will remain unheard 

and unacknowledged. Micronations may be obscure, but 

their struggles for sovereignty demonstrate that declaring 

freedom is not as ?free? as one might think. 

62. Ibid. 


18

RIGHTS AND ACCOUNTABILITY IN THE 

POST-9/11 ERA: 

HABEAS CORPUS AND THE 

GUANTANAMO BAY NAVAL BASE 

Caroline Allen '22.5 

ABSTRACT 

As part of the national response to the September 11, 2001 attacks, the Bush administration created a detainee 

program to incarcerate suspected foreign terrorists in facilities outside of the United States. The detainee 

program was built beyond the jurisdiction of U.S. federal courts and the bounds of international humanitarian 

law; the men held in detention were denied due process and the protections afforded by the Geneva 

Conventions. Filing for habeas corpus in U.S. domestic courts was the only way for detainees?cases to be 

heard and their only path out of incarceration. A number of habeas petitions from detainees held in the 

Guantanamo Bay Naval Base reached the Supreme Court in the ensuing years. This litigation succeeded in 

securing non-American detainees the right to file for habeas corpus and served as a judicial check on executive 

authority over national security matters, cementing the importance of habeas corpus in the U.S. system of 

checks and balances. 


19

Rights and Accountability in the Post-9/11 Era: Habeas Corpus and the Guantanamo Bay Naval Base 

Introduction 

The post-9/11 detainee program was built in a legal black 

hole. The Bush administration constructed the program 

outside of the purview of the Geneva Conventions and 

for habeas corpus allowed the judiciary to engage on the 

issue of the national security detention program. The 

litigation that resulted? culminating with the landmark 

case Boumediene v. Bush (2008)? instituted some measure 

beyond the jurisdiction of domestic courts. The 

of legal recourse and rule of law in the legal black hole of 

approximately 640 men held in detention at the 

Guantanamo Bay Naval Base in the 2010s were denied 

knowledge of the charges brought against them, access to 

any legal review of their cases, the ability to present their 

case, access to counsel, and the disclosure of evidence. 1 

They were held contrary to the provisions stipulated in the 

Geneva Convention and without due process. Their 

detention seemed interminable, with no chance to review 

their cases and no sense of the end of the conflict. 

In the period of national crisis following the events of 

September 11, 2001, the Bush administration pushed to 

expand the scope of executive power. The Authorization 

for Use of Military Force (AUMF), passed by Congress in 

2001, accomplished this; it legally empowered the 

executive branch to take all necessary measures to prevent 

further terrorist attacks and hold those responsible for 9/11 

to account. 2 Because of the AUMF and the national sense 

of crisis, the Bush administration faced little inter-branch 

oversight or accountability for actions that it took in the 

name of national security. 

Guantanamo. 

The extension of constitutional rights to Guantanamo 

detainees had broad legal, political, and societal 

implications. First and foremost, it affected individual 

prisoners?lives: it gave them channels to challenge their 

detention and return home after years of interminable, 

abusive, and often wrongful incarceration. The ensuing 

litigation reaffirmed the expansion of limited constitutional 

rights to non-citizens and established a precedent for 

judicial review of executive national security and military 

actions. Politically, it challenged the Bush administration?s 

War on Terror policies. The cases reflected and reinforced 

a growing public discontent with government overstep in 

the post-9/11 era. This trend was pushed by the highly 

unpopular Iraq War, unfolding while the Supreme Court 

examined the administration?s detainee policy. The 

patriotic ?rally around the flag? sentiment that prevailed in 

the years immediately following 9/11 devolved into anger 

with and mistrust of War on Terror policies by the time that 

the final case, Boumediene v. Bush, was decided. The 

Supreme Court decisions reflected that changing public 

The role of the judicial branch in foreign policy and 

national security matters has been limited historically. 3 

Significantly, however, prisoners?ability to file for habeas 

corpus is a long-respected right administered by the 

sentiment. By checking the executive branch, the Court 

reinforced the public sense of justice by affirming that the 

executive national security apparatus needed to face 

accountability. 

judiciary as a check against the executive and legislative 

branches. ?The great writ? is viewed as an essential tool in 

This paper will examine the development of domestic legal 

protecting individual liberty from the arbitrary power of 

habeas corpus protections for detainees held in 

government, as well as an important balancing mechanism 

between the branches. 4 Guantanamo prisoners? petitions 

Guantanamo. First, it will introduce essential background 

information regarding the law on prisoners of war and 

1. Guantanamo Litigation ? History,? Lawfare, November 27, 2021, https://www.lawfareblog.com/guantanamo-litigation-history. 

2. Ibid. 

3. Boumediene v. Bush, 553 U.S. 723 (2008). 

4. Ibid, 31. 


20


habeas corpus. Second, it will outline the development and . . . A prisoner of war is no convict; his imprisonment is a 

legal structure of the post-9/11 detainee program. Third, it simple war measure.? 5 

will examine the string of Supreme Court cases that 

Any enemy combatant detained by the opposing side is 

developed a constitutional guarantee that detainees in 

considered a prisoner of war. The Third Geneva 

Guantanamo could file for writs of habeas corpus in 

Convention confers certain rights and protections to all 

domestic federal courts. 

prisoners of war. These include protections against torture 

Legal Concepts 

and inhumane treatment, reprisal actions, as well as 

guaranteed rights to food, medical attention, hygiene, and 

The political culture of the United States post-9/11 

more. The convention allows prisoners of war to be held 

encouraged drastic measures to protect self-defined 

for the duration of a conflict and requires their release and 

national security interests. In the imagined state of 

repatriation after the conflict ends. 

emergency, the U.S. government was prepared to suspend 

6 

the legal rights and protections of both U.S. citizens and The United States has ratified the Geneva Conventions and 

foreign nationals to accomplish its national security goals. they are considered the law of the land. 7 

The AUMF provided the Bush administration with the 

Habeas corpus and due process 

broad means to do so. 

In U.S. law, due process and habeas corpus cover 

The following section will lay the legal framework for the 

different, complementary areas and have a symbiotic 

Supreme Court cases brought against the U.S. detainee 

relationship. Due process mostly applies to citizens whose 

program. The cases were predicated on inconsistencies 

freedom or private property might be confiscated by the 

between the U.S. detainee program and the Geneva 

power of the judicial branch. Those detained by the 

Convention in international law and the right to habeas 

judicial branch can apply for habeas corpus if, for 

corpus and due process in domestic constitutional and 

example, new evidence comes to light on their case after 

statutory law. 

they were convicted. However, for those detained by the 

Prisoners of War 

executive or legislative branches, habeas corpus has 

become a method of providing a review where due process 

There is a long-recognized right for countries at war to 

may not apply. Individuals detained by the executive 

hold captured enemy combatants as prisoners of war. 

branch include undocumented immigrants or those held in 

Holding prisoners of war is not meant to be retributive, but 

the name of national security. These detainees are outside 

practical: by detaining enemy combatants, a country 

of the judicial system but can be brought into it through 

prevents them from returning to the battlefield and taking 

filing a writ of habeas corpus. Two evolving questions in 

up arms for the opposing side. International law and U.S. 

the Court?s handling of habeas corpus and due process 

domestic law have long agreed that ?captivity is neither a 

include: (1) whether and where either apply to 

punishment nor an act of vengeance . . . merely a 

non-citizens; and (2) whether the government authority by 

temporary detention which is devoid of all penal character. 

which a person is detained and the context in which that 

5. In re Territo, 156 F. 2d 142, 145 (CA9 1946). 

6. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.32_GC-III-EN.pdf. 

7. ?Geneva Conventions and their Additional Protocols,? Legal Information Institute, April 12, 2022, https://www.law.cornell.edu/wex/geneva_conventions_and_their_ 

additional_protocols. 


21


person has been detained changes the due process or 

habeas corpus rights available to them. 

Habeas corpus enables someone detained by the state to 

test the legal validity of their detention. Prisoners can file a 

writ of habeas corpus, bringing them before a federal court 

which then determines the legality of their detention. 

Habeas corpus is most regularly invoked post-conviction 

when a detainee is already incarcerated. It can serve two 

purposes for these prisoners: reviewing whether a 

detention is valid, partly by examining the legal and 

factual questions of the case, and confirming whether the 

legal procedures which resulted in the petitioner?s 

incarceration complied with due process. 8 It is focused on 

the substantive, particularized issues of a person?s 

detention. 

The right to seek habeas corpus was first stated in the 

Magna Carta in 1215 as a way to limit the power of the 

king to arbitrarily arrest and execute citizens. 9 The framers 

of the Constitution acknowledged habeas corpus as an 

essential protection in a free and just nation, adopting the 

right from British common law for the new U.S. 

Constitution. Indeed, in Federalist Paper Number 84, 

Alexander Hamilton writes that ?the writ of habeas 

corpus, the prohibition of ex post facto laws . . . are 

perhaps greater securities to liberty and republicanism than 

any [the Constitution] contains.? 10 

Habeas corpus is protected through the Suspension Clause 

(Article I, Section 9, Clause 2) which limits the suspension 

of habeas corpus to extraordinary circumstances, thereby 

guaranteeing the right at all other times. It reads that ?the 

Privileges of the Writ of Habeas Corpus shall not be 

suspended unless in Cases of Rebellion or Invasion the 

public Safety may require it.? 11 

Federal statutes outline two requirements for filing a writ 

of habeas corpus: (1) the petitioner must be detained at the 

time that they file a writ; and (2) the petitioner has 

exhausted all other avenues for recourse through the state, 

including appeal. 12 Writs of habeas do not deal with the 

factual or legal basis of the petitioner?s case but, rather, 

?the power and authority of the governmental authority to 

detain the person.? 13 

Contrarily, due process assures people under the 

jurisdiction of the United States the right to undergo a 

standardized, fair legal procedure before they have their 

?life, liberty or property? seized by the state. Due process 

has a procedural focus, in contrast to habeas?s substantive 

focus. Also in contrast to habeas corpus, due process is 

explicitly, affirmatively, and repeatedly outlined in the 

Constitution. The requirement that no person shall be 

?deprived of life, liberty, or property without due process 

of law? is the only phrase repeated twice in the 

Constitution: once in the Fifth Amendment, and again in 

the Fourteenth Amendment. 14 Similar to habeas corpus, 

due process was drawn from the Magna Carta, in which it 

was outlined with the goal of regularizing the process of 

law and holding all accountable to the same standards. 15 

Today, due process provides similar protections by 

promising that the U.S. government will follow certain 

legal procedures? defined by the Supreme Court in 

Mullane v. Central Hanover Bank (1950) as, at a 

minimum, (1) notice of the reason for state action; (2) the 

8. Brandon L. Garrett, ?Habeas Corpus and Due Process,? Cornell Law Review 98, no. 1 (2012), https://scholarship.law.duke.edu/faculty_scholarship/3856/. 

9. Jonathan Kim, ?Habeas Corpus,? Legal Information Institute, Cornell Law School, June 2017, https://www.law.cornell.edu/wex/habeas_corpus. 

10. ?What you should know about habeas corpus,? ACLU, November 2021, https://www.aclu.org/other/what-you-should-know-about-habeas-corpus. 

11. Jonathan Kim, ?Habeas Corpus,? Legal Information Institute, June 2017, https://www.law.cornell.edu/wex/habeas_corpus. 

12. Ibid., 28 U.S.C. §§ 2241?2256. 

13. Ibid. 

14. Peter Strauss, ?Due Process,? Legal Information Institute, November 13, 2021, https://www.law.cornell.edu/wex/due_process. 

15. Ibid. 


22


opportunity to be heard; and (3) a fair, impartial tribunal. 16 

the preventative detention program. 

The Legal Construction of the Detainee Program 

The events of September 11, 2001, shook the United States 

to its core. In the aftermath, a culture of shock, fear, and 

patriotic fervor pervaded American political life. All arms 

of government were deployed to prevent further attacks 

and bring those deemed responsible to justice for the loss 

of American life. Summarizing the Bush administration?s 

new attitude, the Justice Department?s Counterterrorism 

White Paper declared that ?The events of September 11 

transformed the mission of the Department of Justice. . . . 

Indeed, the protection of our national security and the 

prevention of terrorist acts are our number one goal. On 

every level, we are now committed to a new strategy of 

prevention.? 17 

In 2001, the AUMF enabled the Bush administration to 

take broad, unspecified measures to prevent future terrorist 

attacks. In a resolution passed by Congress and signed into 

law on September 18, the AUMF enabled the president to 

?use all necessary and appropriate force against those 

nations, organizations, or persons he determines planned, 

authorized, committed, or aided the terrorist attacks? on 

September 11. 18 The express purpose of expanded use of 

military force was for the United States to ?exercise its 

rights to self-defense? and ?prevent any future attacks of 

international terrorism.? 19 The vague phrasing of ?all 

necessary and appropriate force? provided the legal 

backing for the range of rights-abusive ?national security? 

measures implemented in the following years, including 

The U.S. security establishment designed the preventative 

detention program with the aim of detaining those 

suspected of carrying out future attacks in the United 

States or against U.S. forces in Afghanistan. The Bush 

administration envisioned preventative detention as a 

prisoner of war program adapted for the new realities of 

the War on Terror. 20 The practice of holding captured 

enemy combatants? those serving in an organized 

military, distinct from the civilian population? for the 

length of a conflict is a legal, long-accepted practice during 

times of war. However, during the unconventional War on 

Terror, where there was not a clearly defined enemy force, 

any disenchanted, conservative Muslim person in the 

Middle East or in the United States could be read by the 

U.S. government as a potential terrorist. 

The Bush administration found that the traditional 

categorization of prisoners of war? and the privileges and 

protections necessarily granted to people held under this 

classification? did not fit with the new style of war that it 

waged. The administration asserted that War on Terror 

detainees fit a new category of combatant, created and 

defined by the Bush administration: unlawful enemy 

combatants. 21 Under international humanitarian law, 

combatants (?lawful? combatants) cannot be prosecuted 

for lawful acts of war (e.g., killing or wounding enemy 

combatants) but can be prosecuted for violations of 

international humanitarian law. While they are detained, 

combatants are prisoners of war and, therefore, under the 

16. Nathan Chapman and Kenji Yoshino, ?The Fourteenth Amendment Due Process Clause,? Interactive Constitution, November 13, 2021, 

https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701. 

17. John McLoughlin, Gregory P. Noone, and Diana C. Noone, ?Security Detention, Terrorism, and the Prevention Imperative,? Case Western Reserve Journal of 

International Law 40, no. 3 (2009), https://www.proquest.com/docview/211129850. 

18. Public law 107-40, ?Authorization for the Use of Military Force,? Sept. 18, 2001, https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf. 

19. Ibid. 

20. Jonathan Masters, ?Guantanamo Bay: Twenty Years of Counterterrorism and Controversy,? Council on Foreign Relations, Oct. 5, 2021, 

https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy. 

21. Knut Dörmann, ?The legal situation of ?unlawful/unprivileged combatants,?? International Review of the Red Cross 85, no. 849 (2003), 

https://www.pegc.us/archive/Journals/irrc_849_Dorman.pdf. 


23


protection of the Third Geneva Convention. 22 But the term 

?unlawful combatant? is not mentioned in international 

humanitarian law. The Bush administration constructed it 

as a method of classifying people who play what it deemed 

corpus case to reach the Supreme Court was Rasul v. Bush 

(2004). It affirmed the potential of habeas corpus as a 

legal lifeline out of the black hole of Guantanamo. 

Legal Methods of Challenging the Detainee Program 

a direct role in hostilities? be it as civilians or members of 

militias or resistance movements? but who are not 

incorporated into a regular military. Their actions are 

understood to be acts of war though they are not legally 

?entitled? to carry out acts of war. Therefore, in the 

reckoning of the Bush administration, these ?unlawful 

combatants? are not entitled to the protections of the Third 

Rasul v. Bush 

Rasul v. Bush set precedent for non-citizen detainees held 

in Guantanamo Bay Naval Base to file for habeas corpus 

through domestic courts. 23 The petitioners, 14 Australian 

and Kuwaiti ?enemy combatants? taken from Afghanistan 

and held in Guantanamo, filed what were essentially 

Geneva Convention when they are captured. habeas corpus petitions, demanding (1) to be informed of 

The post-9/11 national security detainee program was built 

to maximize the authority and decision-making ability of 

the executive branch with minimal supervision or 

accountability. The AUMF empowered the executive 

branch to act on national security however it deemed fit, 

without the need to seek congressional approval for 

the charges against them, (2) to be allowed to meet with 

their families and with counsel, and (3) to have access to 

an impartial tribunal. The petitioners?case was dismissed 

by the district court and the court of appeals for lack of 

jurisdiction before the Supreme Court issued a writ of 

certiorari and took on the case in 2004. 

specific measures. This meant that the legislative branch 

In a 6?3 decision written by Justice Stevens, the Court 

deferred its constitutional war powers to the executive 

examined the legal question of whether the judicial branch 

branch. By constructing the category of ?unlawful 

could consider habeas corpus petitions filed on behalf of 

combatant,? the executive branch removed national 

foreign nationals imprisoned at Guantanamo Bay Naval 

security detainees from the jurisdiction of international 

Base. The Court found that, depending on certain factors, 

humanitarian war and military code on the treatment of 

foreign nationals could file for writs of habeas corpus if 

prisoners of war. Therefore, the typical legal constraints on 

(1) they were being held by the U.S. government and (2) 

national security actions? checks and balances from the 

there was sufficient U.S. jurisdiction over Guantanamo 

legislative branch and international humanitarian 

Bay for those held there to have access to the U.S. court 

law? were eliminated. 

system. 24 The Court had to distinguish this decision from 

Thus, the detainee program was constructed in a legal 

?black hole? beyond the jurisdiction of international and 

domestic law, solely under the purview of the executive 

branch without direct checks from the legislature or the 

judiciary. Filing for habeas corpus was the one legal 

pathway to challenge a prisoner?s detention and bring 

its holding in Johnson v. Eisentrager (1950), wherein 

German citizens captured in China were tried and 

convicted of war crimes by a military commission and 

thereby imprisoned on a U.S. base in Germany. Though on 

the surface the cases seem similar? foreign nationals 

detained outside of the United States during wartime? the 

accountability to detainers. The first detainee habeas Court highlighted several pivotal differences: the 

22. Ibid. 

23. Rasul v. Bush, 542 U.S. 466 (2004). 

24. Ibid. 


24


petitioners in Rasul were not citizens of countries at war 

with the United States, they never had access to a tribunal 

nor been convicted, and they were held in a location where 

the United States has, in the words of the 1903 Agreement 

Between the United States and Cuba for the Lease of 

Lands for Coaling and Naval Stations, ?complete 

jurisdiction and control.? 25 

Additionally, the Court drew on the more recent Braden v. 

30th Judicial Circuit of Ky (1973) decision that the 

jurisdiction of the person holding the petitioner in 

detention matters rather than the jurisdiction of the 

petitioner, because habeas corpus acts on the person who 

holds the petitioner, not the petitioner. Under this 

understanding of Braden, the physical location of the 

detainees does not matter, so long as they are held by U.S. 

government officials. Finally, the Court noted that 

Eisentrager found that the petitioners did not have a 

constitutional entitlement to habeas corpus, saying 

nothing of statutory entitlement. The detainees at 

Guantanamo instead claimed, and the Court upheld, a 

statutory entitlement to file for habeas corpus under 28 

U.S.C. §2241. 26 Thus, the decision in Rasul to grant the 

detainees?habeas did not overrule Eisentrager but rather 

set a precedent for foreign nationals detained specifically 

in Guantanamo Bay to seek habeas corpus review. 

Hamdi v. Rumsfeld 

Rasul dealt with the question of whether foreign nationals 

detained outside the United States could petition for 

habeas corpus; Hamdi v. Rumsfeld (2004)? decided on the 

same day as Rasul? dealt with whether the executive 

branch may imprison U.S. citizens as foreign combatants 

without trial. 27 Instead of narrowly examining the legal 

recourse available to the 640 non-Americans held in 

Guantanamo in 2004, Hamdi looked at the legal 

foundations of the detainee program itself. 

Yaser Hamdi was a U.S. citizen captured as a Taliban 

fighter by the Northern Alliance, a coalition of Afghan 

military groups opposed to the Taliban government and 

turned over to the U.S. military in 2001. He was detained 

and interrogated in Afghanistan before he was transferred 

to the U.S. Naval Base in Guantanamo Bay. When the 

military discovered that he was a U.S. citizen, they 

transferred him again to a naval brig in Norfolk, Virginia. 

Hamdi claimed to be a relief worker who was wrongly 

detained. However, the U.S. government asserted that he 

was an enemy combatant working for the Taliban. 28 

Hamdi v. Rumsfeld had a more twisted path through the 

courts than Rasul did. Hamdi?s father filed a petition for a 

writ of habeas corpus on Hamdi?s behalf in the United 

States District Court for the Eastern District of Virginia in 

2002, which granted his petition. On appeal, however, the 

Fourth Circuit Court of Appeals reversed and remanded 

the case to the District Court with instruction to conduct an 

inquiry into Hamdi?s status with ?deference to the 

Government?s security and intelligence interests.? 29 

Michael Mobbs, the Special Advisor to the Under 

Secretary of Defense for Policy, then submitted a short, 

unspecific statement outlining the government?s reasons 

for detaining Hamdi, asserting that he ?traveled to 

Afghanistan? in July or August 2001 where he ?affiliated 

with a Taliban military unit? which he stayed with after the 

September 11 attacks. The ?Mobbs Declaration? went on 

to state that, ?based on his interviews and in light of his 

association with the Taliban,? ?U.S. military screening 

team[s]? determined that Hamdi met ?the criteria for 

enemy combatants.? 30 The Mobbs Declaration was the sole 

25. Ibid, 542 U.S. at 480. 

26. Ibid, 542 U.S. at 471. 

27. Hamdi v. Rumsfeld, 542 U.S. 507 (2004). 

28. Ibid, 542 U.S. at 510. 

29. Ibid, 542 U.S. at 512. 

30. Ibid, 542 U.S. at 513. 


25


support that the government provided for Hamdi?s 

incarceration. Upon review, the district court found this 

statement fell ?far short? of supporting Hamdi?s detention 

and required a far more detailed, extensive list of new 

evidence. Upon appeal, the Fourth Circuit reversed the 

district court?s decision, asserting the executive?s right to 

detain enemy combatants? implying that Hamdi was an 

enemy combatant because he ?was captured in a zone of 

active combat in a foreign theater of conflict?? under 

Article II of the Constitution and the AUMF. 31 

The legal issue in question in Hamdi v. Rumsfeld asked 

whether the executive branch had the authority to detain 

U.S. citizens on U.S. soil as ?enemy combatants? without 

due process. The Supreme Court defined ?enemy 

combatants? as those who were ?part of or supporting 

forces hostile to the United States or coalition partners? in 

Afghanistan. Hamdi argued that his detainment violated 18 

U. S. C. Section 4001(a), which states that ?[n]o citizen 

shall be imprisoned or otherwise detained by the United 

States except pursuant to an Act of Congress.? 32 He further 

argued that, as a citizen held on U.S. soil under the 

jurisdiction of the U.S. Constitution, he was entitled to due 

process protected by the Fifth and Fourteenth 

Amendments: he had a right to formal charges, access to 

legal counsel, and review by an impartial tribunal. In 

response to Hamdi?s file for habeas corpus, the 

government outlined the executive?s authority to detain 

?enemy combatants? as stemming from the war powers 

outlined in Article II of the Constitution, affirmed in the 

AUMF which the government claimed acted as the ?Act of 

Congress? stipulated in Section 4001(a). In addition, the 

government claimed that Section 4001(a) applied to 

civilian detainees, not those detained by the military for 

reasons of national security. 33 

The Court, in a plurality opinion, affirmed the executive 

branch?s right to detain prisoners of war? with 

congressional authorization through the AUMF? as a legal 

and long-recognized practice in the laws of war. It noted, 

however, potential issues in applying laws of war as 

developed in traditional warfare to the untraditional, broad, 

and diffuse War on Terror. For example, without a clear 

temporal limit to the War on Terror, would detainees be 

held indefinitely? It drew heavily on the strong precedent 

set by Ex Parte Quirin (1942) to also hold that citizenship 

does not change depending on whether someone can be 

detained for national security reasons. 34 On the question of 

due process, both Hamdi and the government granted that 

he had a right to file for habeas corpus as someone 

detained in the United States at a time when the writ had 

not been suspended. The Court rejected out of hand, 

however, the government?s argument that there was no 

need for further fact-finding as Hamdi was detained in 

Afghanistan, an active combat zone. For the government?s 

second claim that further factual examination was 

unwarranted, the Court applied the test articulated in 

Mathews v. Eldridge (1975), weighing the private interest 

affected by the government against the government?s 

asserted interest. Here, the Court found that Hamdi?s right 

to due process, not offset by circumstances of war? and 

representative of the nation?s higher values of liberty and 

rule of law? of greatest weight and, therefore, required 

that Hamdi ?receive notice of the factual basis for his 

classification, and a fair opportunity to rebut the 

Government?s factual assertions before a neutral 

decisionmaker.? 35 In such a decision, the Court created a 

space for the judicial branch to check the executive?s war 

powers, stating that ?we have long since made clear that a 

state of war is not a blank check for the President when it 

31. Ibid, 542 U.S. at 514. 

32. Ibid, 542 U.S. at 517. 

33. Ibid. 

34. Ex Parte Quirin, 17 U.S. 1, 63 S. Ct. 2 (1942). 

35. Hamdi v. Rumsfeld, 542 U.S. at 533. 


26


comes to the rights of the Nation?s citizens.? 36 

U.S. soil or elsewhere? are under the jurisdiction of the 

domestic civilian court system and have a right to seek a 

Hamdi v. Rumsfeld was a contested case, and the decision 

writ of habeas corpus there. The opinion in Hamdi v. 

outlined above was a plurality decision written by Justice 

Rumsfeld made clear that courts that receive petitions for a 

O?Connor and joined by Chief Justice Rehnquist, Justice 

writ of habeas corpus from an ?alleged enemy combatant? 

Kennedy, and Justice Breyer. Justice Souter, joined by 

must ?ensure that the minimum requirements of due 

Justice Ginsburg, wrote a separate opinion concurring in 

process are achieved.? Mullane outlines these minimum 

part and dissenting in part. Justice Souter concurred in the 

requirements to be (1) notice of the reason for 

section of the opinion which found that Hamdi had a right 

incarceration; (2) the opportunity to be heard; and (3) a 

to habeas corpus and due process; he dissented, however, 

fair, impartial tribunal. 

to the plurality?s finding that Congress authorized Hamdi?s 

38 However, the plurality opinion 

wrote that the Court?s standards for review ?could be met 

detention through the AUMF. Justices Scalia and Thomas 

each wrote dissents. 37 by an appropriately authorized and properly constituted 

The lack of a majority and the 

military tribunal,? thus suggesting a method of review 

ideological split of the Court shows the sharply contested 

apart from civilian courts. 

nature of the case and the emerging political divide on the 

39 

use of executive war powers post-9/11. The decision laid a The Department of Defense (DoD) created Combatant 

first, incomplete, and shaky foundation for detainees? Status Review Tribunals (CSRTs) and Administrative 

rights to access the courts, supported by the stronger, more Review Boards (ARBs) shortly after the Hamdi and Rasul 

definitive case Rasul v. Bush. 

opinions were released to provide some non-civilian due 

process for detainees. 

Policy Results of Rasul v. Bush and Hamdi v. Rumsfeld 

40 CSRTs were military-run hearings 

conducted for each detainee, without access to a personal 

Rasul and Hamdi reinforced the detainee program itself 

representative, structured as ?a formal review of all the 

and opened new pathways for individuals to seek judicial 

information related to a detainee to determine whether 

review. First, the Court affirmed that the executive?s 

each person meets the criteria to be designated as an 

post-9/11 detainee program was legal with the support of 

enemy combatant.? 41 If a detainee did not meet the criteria, 

the AUMF; it respected the ability of the executive to hold 

they would be released or repatriated. The structure of the 

detainees as a form of preventative action. Second, the 

CSRTs mirrored the prisoner of war hearings on the 

Court, in both decisions, maintained that there needs to be 

Geneva Convention. ARBs conducted annual reviews of 

some form of procedural and factual review of detainees? 

the prisoners?CSRT-determined status to prevent indefinite 

cases if they are to be held by the executive. By granting 

detention. The proceedings of both the CSRTs and the 

habeas review in both Rasul and Hamdi, the Court held 

ARBs were kept highly private with very little information 

that detainees? U.S. citizens or otherwise, imprisoned on 

of substance released to the public. 42 

36. Ibid, 542 U.S. at 536. 

37. Ibid. 

38. Chapman and Yoshino, ?The Fourteenth Amendment Due Process Clause.? 

39. Hamdi v. Rumsfeld, 542 U.S. at 538 (2004). 

40. ?Guantanamo Litigation ? History,? Lawfare, November 27, 2021. https://www.lawfareblog.com/guantanamo-litigation-history. 

41. Ibid. 

42. Ibid. 


27


Congress responded to the cases with the passage of the Laden?s chauffeur. He was captured in Afghanistan in 2001 

Detainee Treatment Act (DTA) in 2005. It directly aimed and transferred to the Guantanamo Bay Naval Base a year 

to halt Guantanamo detainees? right to statutory habeas later. He was charged with conspiracy to commit offenses, 

corpus found in Hamdi and Rasul. The DTA stripped all a charge triable by a military commission, over two years 

U.S. domestic courts of the ability to hear habeas corpus after that. Hamdan filed for habeas corpus and a writ of 

petitions from ?enemy combatants? and pushed review of mandamus, a court order charging a government official to 

any other legal petitions related to detention in do their duty or correct a lapse. 45 His filing claimed that 

Guantanamo to the U.S. Court of Appeals for the D.C. the military commission set to try him had no authority to 

Circuit. 43 However, the DTA did not stop the progression do so because conspiracy was not a violation of the law of 

of habeas petitions that were already pending, making it so war, neither Congress nor the common law of war 

the next slate of litigation that challenged DoD and supported trial, and the procedures of the commission were 

Congress?s actions limited the role of the courts in this not adequate to the standards of military and international 

area. 

law. 46 

DoD and Congress?s reactions to Rasul and Hamdi 

represented a push back on the encroachment of the 

judicial branch on national security matters. This pushback 

could be interpreted as serving the national security 

apparatus? interest in maintaining secrecy and full 

autonomy in how it manages detainees. The reactions 

could also, however, represent an attempt of the executive 

and legislative branches to regain full control over national 

security, a sphere where the judiciary traditionally had 

little role. 

Hamdan v. Rumsfeld and the Military Commissions Act 

Hamdan v. Rumsfeld (2006) was the next Supreme Court 

case that stemmed from a Guantanamo prisoner?s habeas 

corpus petition and took on the executive branch?s 

absolute authority over national security. 44 It made its way 

to the Supreme Court after the D.C. Court of Appeals 

reversed the district court?s decision to grant Hamdan 

habeas corpus. 

Hamdan was a Yemeni national who worked as Osama bin 

Hamdan took on multiple legal questions. First, whether 

the habeas petition? filed before the DTA passed and 

prevented any habeas petitions? could continue through 

the courts. The Supreme Court struck down the 

government?s motion to dismiss on this point with the 

reasoning that the DTA did not explicitly stop pending 

habeas petitions, allowing the case to proceed. Second, it 

took on the question of whether the procedures of the 

military commission were consistent with the Geneva 

Conventions and the military code. On both measures, the 

Court found that the military commission was insufficient. 

The Court found the tribunal to fail on the standard set by 

the Uniform Code of Military Justice that military 

commissions be ?uniform insofar as practicable? and by 

the Geneva Conventions? Common Article 3 which 

requires that detainees be tried by a ?regularly constituted 

court affording all the judicial guarantees which are 

recognized as indispensable by civilized peoples.? 47 A 

major aspect of the commission that the Court found did 

not meet these standards was that the detainee would not 

43. Ibid. 

44. Hamdan v. Rumsfeld, 548 U.S. 557, 573 (2006). 

45. ?Mandamus,? Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/mandamus. 

46. Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 

47. Ibid., 548 U.S. at 630. 


28


have access to key pieces of the government?s evidence 

against him or the proceedings of the tribunal itself. In 

Boumediene v. Bush 

To review the legal standing of the detainee program when 

addition to the commission not fitting standards, the Court 

Boumediene v. Bush was granted certiorari, the 

found that, as an act of Congress did not empower the 

military commission to try Hamdan and the executive 

branch had no inherent right to do so, the method of trial 

by military commission was not legitimate as is. 48 

By finding that the Geneva Conventions applied to 

executive? backed by Congress with the AUMF? had 

been found to have the power to detain enemy combatants 

until the end of a conflict; Guantanamo had been found to 

be in the jurisdiction of the U.S. federal court system; and 

statutory habeas corpus had been found to extend to 

Hamdan, the Court rejected the government?s non-citizen enemy combatants. Beyond the judicial 

classification of detainees as ?unlawful enemy branch, CSRTs determined enemy combatant status, 

combatants? outside of the protection of international law. 

The case, therefore, again extended procedural protections 

to detainees? this time through international law and 

military code, not domestic law? and limited the power of 

the executive branch by determining that it did not have 

absolute, sole authority over enemy combatants?detention. 

The executive and legislative branches reacted to the 

Court?s decision in Hamdan as they did in the months 

following Rasul and Hamdi: by passing legislation to close 

the loopholes that brought the case to the Supreme Court. 49 

The Military Commissions Act (MCA) built on the DTA, 

which was largely taken apart by Hamdan. It authorized 

trial by military commission for violations of the laws of 

war and ?other purposes? and increased the list of crimes 

triable by commission, including conspiracy. The MCA 

military commissions authorized under the MCA tried 

those found as enemy combatants, and the DTA and MCA 

provided that the courts had no jurisdiction to hear 

Guantanamo detainees?habeas corpus petitions. 

Lakhdar Boumediene was arrested by Bosnian police in 

2002, along with five other Algerian nationals, under 

suspicion for plotting to blow up the U.S. Embassy in 

Bosnia. These detainees were classified as enemy 

combatants and held in Guantanamo. Boumediene filed a 

habeas corpus petition alleging violations of the due 

process clause, 28 U.S.C. §2241, the Geneva Conventions, 

and common law. The Appeals Court for the D.C. Circuit 

held that the MCA stripped the court system of the 

jurisdiction to hear his habeas corpus petition. The 

Supreme Court granted certiorari. 51 

also, again, prevented domestic courts from hearing 

habeas petitions of CSRT-designated enemy combatants. It 

was careful to explicitly block any pending cases at the 

time of passage from continuing their climb through the 

courts. 50 Thus, it was tailored to close the holes highlighted 

in Hamdan and cement executive authority over the 

detainee program. 

The legal issue at hand in Boumediene was whether the 

MCA was sufficient to strip federal courts of the 

jurisdiction to hear habeas corpus cases or whether it was 

an unconstitutional violation of the Suspension Clause. 

Justice Kennedy?s majority opinion found, firmly, that 

Guantanamo detainees had a constitutional right to habeas 

corpus. In addition, it found that, as the DTA?s measures of 

48. Ibid. 

49. ?Hamdan v. Rumsfeld: Applying the Constitution to Guantánamo prisoners,? Constitution Daily, National Constitution Center, June 29, 2017, 

https://constitutioncenter.org/blog/hamdan-v-rumsfeld-applying-the-constitution-to-guantanamo-prisoners. 

50. Ibid. 

51. Boumediene v. Bush, 553 U.S. 723 (2008). 


29


reviewing detainees? statuses were ?not an adequate and 

effective substitute for habeas corpus,? the MCA amounted 

to an unconstitutional suspension of the writ of habeas 

corpus under the Suspension Clause. 52 

The opinion of the Supreme Court carefully and 

deliberately outlined the history of habeas corpus in 

English common law and in the debates of the Framers as 

a method of checking the arbitrary power of an executive. 

The Court emphasized the Framers? views that the 

separation of powers into three independent branches and 

habeas corpus were both measures of protecting individual 

liberties from ?undivided, uncontrolled power.? 53 For these 

reasons, the Court read the Suspension Clause as 

empowering the judiciary to use the ?time-tested device? 

of habeas corpus to ?safeguard the liberty? of incarcerated 

individuals. 54 As to whether constitutional habeas corpus 

could apply to non-citizens outside of the country, the 

Court referred to Eisentrager and other precedent set on 

the application of the Constitution outside of the United 

States. The opinion outlined three factors for 

consideration: (1) the citizenship of the petitioner as well 

as their status and how that status was determined, (2) the 

nature of U.S. control where a petitioner?s apprehension 

and detention took place, and (3) the practical obstacles in 

the petitioner?s access to the writ. On consideration of all 

three standards, the Court found that Guantanamo 

detainees should have access to habeas corpus. 55 

The Court established habeas corpus as an essential 

constitutional protection available to detainees held at 

Guantanamo, one which required a formal suspension 

from Congress only at times of ?Rebellion or Invasion 

[when] the public safety may require it.? The Court found 

that the DTA was intended to create a more limited 

procedure than would be provided by habeas corpus and 

that neither the AUMF nor the MCA could be considered a 

formal suspension of the writ. Therefore, through these 

acts, detainees at Guantanamo were denied their 

constitutional right to habeas corpus. Through the 

Boumediene v. Bush decision, sections of the DTA and 

MCA were struck down and the D.C. District Court 

opened to habeas petitions from Guantanamo. 56 Aspects of 

the CSRT and military commissions were maintained; 

however, if detainees found these measures insufficient, 

they had open access to the judicial system through habeas 

corpus to challenge their detention. Boumediene v. Bush 

has proven clear and conclusive on the issue of the 

procedural review available to national security detainees: 

it was the last time that the Supreme Court took up 

questions of national security detainees? constitutional 

rights. 

Conclusion 

The judicial branch tends to stay away from matters of 

national security and foreign policy. The Constitution 

explicitly grants war powers to the legislative branch and 

the executive branch but mentions nothing on war powers 

in Article III, which outlines the powers of the judiciary. In 

times of crisis, the prevailing wisdom holds that authority 

should be consolidated in the executive to maximize speed, 

flexibility, and the projection of strength. Increasing the 

number of decision-makers, and, thus, the number of 

opinions and inputs on a decision, slows the 

decision-making process and limits the available options 

that may save American lives. It was this reasoning in the 

fear and uncertainty following the 9/11 attacks that led 

Congress to pass the AUMF, consolidating control of the 

U.S. response to the 9/11 attacks in the executive branch. It 

was also this logic that informed Justices Roberts, Scalia, 

Thomas, and Alito?s biting dissents in Boumediene v. Bush. 

52. Ibid., 553 U.S. at 733. 

53. Ibid, 553 U.S. at 742. 

54. Ibid, 553 U.S. at 745. 

55. Ibid. 

56. ?Guantanamo Litigation ? History,? Lawfare, November 27, 2021. https://www.lawfareblog.com/guantanamo-litigation-history. 


30


Justice Scalia went as far to warn in his dissent that, in 

?elbowing aside the military,? the Court?s decision ?will 

almost certainly cause more Americans to be killed.? 57 

However, the Boumediene v. Bush decision also extended 

American principles of rule of law and individual liberty to 

an arena where government rights abuses are strife. 

Habeas corpus is a constitutionally guaranteed protection 

viewed by the Framers as essential to individual liberty 

and a balanced government. It provides a method of legal 

recourse to men seized in tenuous circumstances, often 

without much evidence, and held without trial or access to 

counsel? sometimes subject to torture and cruel and 

inhumane conditions? for years without an end to the 

conflict in sight. Thus, expanding constitutional habeas 

corpus to Guantanamo detainees brought some level of 

accountability and balance to the detainee program built 

under the unilateral authority of the executive branch, 

purposely constructed to be outside of the bounds of 

international and domestic law. 

Through dialogue and pushback with the executive and 

legislative branches, the judicial branch extended some 

constitutional protections to detainees through the habeas 

corpus cases discussed in this paper. These cases built 

detainees a lifeline out of the legal ?black hole? in which 

the Bush administration constructed the detainee program. 

They brought some measure of accountability and rule of 

law where there was none, building pathways out of 

incarceration for hundreds of detainees. The Supreme 

Court, therefore, established that the national security 

apparatus could not operate with complete impunity, 

helping to rebalance the system of checks and balances 

and bolster the public sense of justice in the wake of the 

War on Terror. 

57. Boumediene v. Bush, 553 U.S. at 828 (2008) (Scalia, J., dissenting). 


31

EXOTIC DANCING IN RHODE 

ISLAND AND BEYOND: 

AN ANALYSIS OF LEGAL RIGHTS 

AND PROTECTIONS UNDER THE 

FIRST AMENDMENT AND THE FAIR 

LABOR STANDARDS ACT 


ABSTRACT 

Strippers are a marginalized class of workers, as not only is their work taboo, but they face highly 

discriminatory working conditions within the strip club. Dancers have been subject to numerous regulations 

infringing on their First Amendment right to free speech, as well as predatory and unjust working conditions 

through independent contractor agreements. In Rhode Island and across the United States, dancers have sought 

legal remedy to protect their expressive conduct and earn labor protections through classification as employees 

rather than contractors under the Fair Labor Standards Act. This classification better secures the protection of 

the rights of exotic dancers, and not only increases their safety, but guarantees that workers are subject to 

equitable working conditions. Content Warning: This article discusses sexual violence. 


32

Introduction 

Exotic dancing is a highly marginalized profession, with 

strippers regarded as the means to a ?fun night out? and 

nothing more. As workers in the United States, dancers 

should theoretically be protected under federal laws. 

However, this has not been the case, and hostile and 

exploitative work conditions have ensued. Additionally, 

many dancers are independent contractors, which has 

severely limited their rights in the workplace. Many 

federal cases have attempted to limit the ability of dancers 

to engage in exotic dancing, in particular nude dancing. 

Although dancers have fought back against regulations 

using their First Amendment rights, they were 

unsuccessful. The next best way to protect dancers?rights 

was to use the Fair Labor Standards Act (FLSA). The 

FLSA proved to be successful, as dancers who sued their 

clubs have been reimbursed for damages and have been 

granted employee status. In order to address the 

exploitation and violence against exotic dancers in the 

United States, dancers must be, in accordance with the law 

and federal court rulings, considered employees rather than 

independent contractors. 

Exotic Dancing in Rhode Island and Beyond: 

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act 

This paper will examine recent legal cases involving the 

fair employment and free speech of exotic dancers, relying 

heavily on the first person account of a former dancer in 

Providence to establish background about the strip club?s 

operations and work culture. This paper will analyze three 

cases from across the country that address First 

Amendment challenges to restrictions on expressive 

conduct, including nude dancing, in the face of state 

interest claims. These cases demonstrate First Amendment 

jurisprudence?s failure to protect dancers and their ability 

to earn money. Then, this paper examines legal challenges 

to the classification of dancers as independent contractors 

under the FLSA. The designation of dancers as employees 

instead of contractors would enable them to be paid 

minimum wage, receive overtime pay, and ultimately 

receive healthcare benefits. Additionally, the FLSA 

protects dancers from illegal wage deductions. With this 

evidence, this paper posits the normative argument that 

although strippers are viewed as commodities or a means 

to sexual gratification, FLSA should be used as a legal 

remedy to ensure that they have equitable working 

conditions. 

Understanding the Strip Club 

Stripping, otherwise known as exotic dancing, is a pillar of 

the adult entertainment industry. Patrons pay for sexual 

gratification in the form of a variety of services from 

dancers, including lap dances, exclusive VIP rooms with 

bottle service, and specialty events such as bachelor 

parties. Depending on the state, strip clubs may be ?no 

contact,? meaning that patrons are not allowed to initiate 

any physical contact with the dancers. 1 Some clubs also 

offer fully-nude dancing services, but typically clubs will 

only let dancers take off their tops. 2 While fully-nude 

stripping is less common, dancers who perform these 

services are often paid much more. Unlike prostitution, 

stripping is completely legal and does not involve sex. 3 

However, it is still common for patrons to solicit 

prostitution. 4 Ultimately, the strip club is a place where the 

company and beauty of a woman is commodified for 

consumption by patrons. Additionally, the vast majority of 

strip clubs in the United States, and every strip club in 

Rhode Island, exclusively hire women. None of the cases 

addressed in this paper address male exotic dancers, 

mainly due to the fact that male-focused strip clubs operate 

1. Sarah Doe (exotic dancer in Providence), interview by Olwyn Kells, November 15, 2021. 

2. Ibid. 

3. Ibid. 

4. Ibid. 


33



much differently than female strip clubs. 5 Although there 

are common themes of objectification and the dangerous 

situations that exotic dancers are placed in, female dancers 

face a disproportionate amount of danger and sexual 

assault in the workplace and face greater legal issues due 

to their work arrangement. 

How Does a Strip Club Operate? 

From the hiring process onward, dancers are unduly 

economically exploited and deprived of autonomy in their 

employment. Strip clubs operate by hiring dancers through 

an audition process. Dancers come in on designated 

audition days and usually perform in front of either the 

manager and the ?house mom,? or in front of the patrons in 

the club. The ?house mom? is typically a woman who 

organizes the dancers?schedules, ensures that the dancers 

are following the rules, and enforces the dress standards of 

the club. Dancers must provide their own makeup, attire, 

and hair, and oftentimes there is a designated stylist for 

each shift. 6 Dancers are free to drink alcohol at the club but 

can face punishments, such as a two-week suspension, if 

they are caught doing drugs, engaging in prostitution, or 

breaking any club policies. 7 Dancers tend to have free 

reign over their personas: they can pick costumes and 

create a personality to appeal to patrons, often 

communicating with them beyond the walls of the club to 

establish ?regulars.? 8 However, dancer regulations for strip 

clubs vary, and in some high-end clubs the dancers are 

held to very strict standards. At the typical club, though, 

management instructs dancers to (a) play into stereotypes 

and (b) sell as many dances as possible. 9 This encourages 

dancers to commodify themselves, whether through their 

race, age, hair color, or height, as well as to ?lead 

customers on? to convince them that they will be ?sexually 

satisfied if they keep spending money.? 10 Although clubs 

vary in management style as well as atmosphere, the core 

element of selling oneself as part of sexual gratification is 

consistent. 11 

Stripping follows a distinct employment structure that 

leaves dancers more free than other workers in some ways 

but more open to exploitation in others. Dancers are often 

categorized as independent contractors. Because they set 

their own schedules, they are free to work at other clubs 

whenever they want. Also, they are not paid minimum 

wage. Instead, dancers are paid exclusively by the 

customers, either in tips or in exchange for private 

dances. 12 Dancers who are categorized not as employees 

but as independent contractors are subject to a number of 

exploitative conditions in the club. Dancers are generally 

subject to the following provisions: (1) pay a ?house fee,? 

or a set amount of money per shift to be able to perform; 

(2) pay a ?tip out,? around 20 dollars a night, to the other 

employees of the club, such as the house mom, the floor 

host, the bouncers, and the DJ; (3) pay out a percentage of 

every lap dance or VIP room fee at the discretion of the 

club; and (4) sign some variation of an independent 

contractor agreement, and thus do not receive health 

5. Rebecca Clark, ?Male Strippers: Ladies?Night at the Meat Market.? Journal of Popular Culture 19, no. 1 (Summer, 1985): 54, 

https://www.proquest.com/scholarly-journals/male-strippers-ladies-night-at-meat-market/docview/1297348144/se-2?accountid=9758. 

6. Ibid. 

7. Mindy S. Bradley-Engen and Jeffery T. Ulmer, ?Social Worlds of Stripping: The Processual Orders of Exotic Dance,? The Sociological Quarterly 50, no. 1 (2009): 

38?40, http://www.jstor.org/stable/40220120. 

8. Ibid., 38. 

9. Ibid., 50. 

10. Ibid., 38. 

11. Ibid. 

12. Ibid. 


34



insurance or minimum wage from the club. 

For context, clubs do pay benefits to the other employees 

at the club, such as the bartenders and kitchen staff. 13 The 

club also provides physical protection to employees that is 

often minimal for the dancers. Occasionally, there is a 

police officer on duty at the end of the night who escorts 

employees to their cars, but this is not guaranteed and 

varies widely depending on local practice. Furthemore, 

club bouncers do not routinely patrol the club and will 

only act if a dancer cries out for help or if there is a 

commotion. 14 In VIP rooms, where dancers engage with 

patrons outside the main dance area of the club, there is 

often limited visibility and high potential for groping, rape, 

or drugging. Most clubs have metal detectors, but this does 

not dissuade disorderly conduct amongst the patrons. 15 In 

summary, dancers face dangerous, exploitative conditions 

that warrant a consideration of what legal protections are 

available for this vulnerable group. 

Legal Challenges Faced by Strippers 

In recent years, state and federal courts have addressed two 

core legal questions on exotic dancing: whether or not it is 

protected under the First Amendment and whether the 

dancers should be classified as employees under FLSA. 

First Amendment cases limited dancer conduct, in 

particular the level of nudity in dancing and the tactics 

available to dancers to earn additional wages. FLSA cases, 

in contrast, redressed the unfair employment structure of 

the strip club and granted stronger labor rights to dancers. 

Clubs and the dancers have used First Amendment claims 

to fight back against repeated state and federal regulatory 

efforts to end the practice of exotic dancing. To 

successfully combat these regulations, clubs have had to 

prove that exotic dancing is expression and is therefore 

warranted some level of protection under the First 

Amendment. Next, courts decide whether the state?s 

regulatory interest justifies the incidental infringement on 

the protected expression. States have used multiple means 

of justifying their interest, such as advancing Twenty-First 

Amendment arguments to regulate alcohol sales. Section 2 

of the Twenty-First Amendment states that ?The 

transportation or importation into any State . . . of 

intoxicating liquors, in violation of the laws thereof, is . . . 

prohibited?; states have the power to regulate alcohol 

sales, importation, and use. 16 This legal theory was 

established in California v. La Rue (1972), as states were 

able to extend their power under the Twenty-First 

Amendment to monitor places where alcohol is served. In 

tandem, Barnes v. Glen Theatre Inc. (1991) and Biscayne 

Entertainment, Inc. v. City of Providence Board of Licenses 

(2020) advanced the argument that the state?s power to 

promote public health justified incidental infringement on 

the First Amendment right of protected expression. These 

cases established a legal path for limiting dancers?conduct 

and ability to earn a living. 

California v. La Rue 

In California v. La Rue, the Supreme Court addressed the 

question of whether sexually explicit live entertainment in 

bars and nightclubs licensed to sell liquor was protected 

expression under the First and Fourteenth Amendments, 

and whether California?s power to regulate liquor sales 

under the Twenty-First Amendment was strong enough to 

justify abridging those rights. The California Department 

of Alcoholic Beverage Control prohibited the display of 

sexually explicit entertainment in these establishments in 

13. Interview with Sarah Doe (2021). 

14. Ibid. 

15. Bradley-Engen, 39. 

16. U.S. Const. amend. XXI, § 2. 


35



order to prevent acts of prostitution and rape. 17 The U.S. 

District Court for the Central District of California ruled 

against the department. In their decision, the court cited the 

First Amendment?s protection of expressive conduct and 

the Fourteenth Amendment?s incorporation of federal 

rights to the states. 18 The Supreme Court, however, 

reversed the decision of the district court. 

The Supreme Court concluded that the department did not 

violate the First Amendment since the regulation narrowly 

prohibited specific conduct in establishments where liquor 

was served. 19 Thus, the prohibition was not an overbroad 

regulation of expressive conduct. The Supreme Court also 

found that the department?s effort to prevent instances of 

prostitution by regulating the inebriation of customers in 

establishments with stripping was a valid state interest. 20 

Eventually, the Court ruled that while the First and 

Fourteenth Amendments do initially protect the 

performances, the state?s power to regulate liquor sales 

under the Twenty-First Amendment supersedes the rights 

protected under the First and Fourteenth Amendments. 21 

Barnes v. Glen Theatre, Inc. 

Taking this logic further, Barnes v. Glen Theatre, Inc. 

addressed an Indiana statute that prohibited nudity in a 

non-private place. This statute does not prohibit stripping 

but prohibits dancing where dancers are wearing anything 

less than (in the words of the Supreme Court) ?pasties and 

g-strings.? 22 According to the state, the Indiana criminal 

law statute was directed to promote public health, order, 

and decency. Regardless, the Seventh Circuit sided with 

the local strip club proprietors and concluded that nude 

dancing was both protected under the First Amendment as 

protected expression and that the local statute, Indiana 

Code § 35-45-4-1, was ?directly related to the suppression 

of what may very well be non-obscene free expression.? 23 

The Supreme Court, however, applied the O?Brien test to 

decide whether the infringement was justified; the O?Brien 

test states that government regulation is justified if ?it 

furthers an important or substantial governmental interest; 

if the governmental interest is unrelated to the suppression 

of free expression; and if the incidental restriction on 

alleged First Amendment freedoms is no greater than is 

essential to the furtherance of that interest.? 24 The Court 

ruled that the public indecency statute was justified, 

despite prohibiting nude dancing, since it is within the 

police power of the state, it furthers a substantial interest in 

combating public indecency, the message of the conduct 

was not diluted by wearing clothing, and the collateral 

effects of prostitution justified the incidental infringement 

of the dancer?s expression. 25 

What the Court failed to consider, however, is that nude 

dancers are often tipped more than their clothed 

counterparts. By restricting this form of conduct the Court 

inadvertently diminished the potential amount of money 

dancers earn and further cemented the economic instability 

many dancers feel. Under the cover of this decision, states 

went on to use public indecency and public health grounds 

to regulate exotic dancing and deprive dancers of earnings. 

17. Cal v. La Rue, 409 U.S. 109, 111-115 (1972). 

18. Ibid., 409 U.S. at 117-119. 

19. Ibid. 

20. Ibid. 

21. Ibid. 

22. Barnes v. Glen Theatre, 501 U.S. 560, 563 (1991). 

23. La Rue v. California, 326 F. Supp. 348, 355 (C.D. Cal. 1971). 

24. Barnes, 501 U.S. at 567-568. 

25. Ibid., at 567-572. 


36

Biscayne Entertainment, Inc. v. City of Providence 

Board of Licenses 



offer nude dancing services; however, they have not been 

linked to prostitution. 

The question of nude dancing as protected conduct reached 

the Rhode Island District Court in the case Biscayne 

Entertainment, Inc. v. City of Providence Board of 

Licenses. Biscayne Entertainment, owner of the club ?Wild 

Zebra,? now known as ?Silhouettes,? initiated the suit 

when the city board of licenses revoked their operating 

license because the club offers nude dancing, which was 

linked to two instances of prostitution. 26 Similar to Barnes, 

the plaintiff claimed that the decision violated the First 

Amendment right to offer nude dancing, claiming that it 

was a constitutionally protected form of expressive 

conduct. The court conducted the O?Brien test and found 

that it was satisfied; the court invoked precedent from 

Barnes, saying that the incidental restriction on the First 

Amendment rights of the club was valid in an effort to 

enforce a public health regulation. 27 Additionally, the court 

found that the plaintiffs were unlikely to succeed on the 

merits, as prostitution is not a protected form of 

expression, thus denying the preliminary injunction. 

Biscayne Entertainment filed a motion of reconsideration, 

stating that the removal of its business licenses was a 

substantial burden on its ability to operate and unduly 

burdened the protected expressive conduct of the 

dancers. 28 The court then granted the motion for 

reconsideration on the basis of a lack of avenues available 

to appeal the board?s decision not on pure First 

Amendment grounds. The revocation was temporarily 

stayed. 

In essence, nude dancing is not a protected form of 

conduct in Rhode Island when the state wants to enact 

public health measures. There are clubs that continue to 

In summary, the U.S. federal court system has consistently 

sided in favor of government regulations prohibiting nude 

dancing, though it is a protected form of speech under the 

First Amendment. These decisions diminish the earning 

potential of dancers and maintain the status quo that 

deprives dancers of their full labor rights. The First 

Amendment has thus been shown to be an ineffective tool 

to sufficiently protect dancers, making it clear that a 

different avenue is needed to secure their labor rights. 

Dancer Rights Under the Fair Labor Standards Act 

More successfully, dancers have utilized the Fair Labor 

Standards Act to redress the abuses faced by their 

employers. Specifically, clubs?designations of dancers as 

independent contractors instead of employees have 

stripped dancers of their right to the minimum wage and 

made them vulnerable to illegal wage deductions. Federal 

cases Reich v. Circle C Investments (1993) and Hart v. 

Rick?s Cabaret (2013) established the precedent that 

dancers are employees under the FLSA. The decisions in 

these two cases then influenced three Rhode Island FLSA 

cases, Levi v. Gulliver?s Tavern Inc. (2018), Pizzarelli v. 

Cadillac Lounge (2018), and Binienda v. Atwells Realty 

Corp (2018). Yet, the uniform decision from each federal 

court that dancers should be classified as employees, not 

contractors, is still routinely violated. 

The FLSA provides a comprehensive list of protections for 

all employees. Protected aspects of work include a 

guarantee of minimum wage for all forms of labor, the 

nullification of any contract that denies a worker the 

minimum wage, and requirement of overtime pay for work 

26. Biscayne Entm?t, Inc. v. City of Providence Bd. of Licenses, C.A. No. 20-130-JJM-LDA, 1, 1-2 (D.R.I. 2020). 

27. Ibid. 

28. Ibid. 


37



exceeding 40 hours a week. 29 Amended by the Affordable 

Care Act, the FLSA now also states that any employer that 

maintains 50 full time employees for greater than 120 days 

must provide a health insurance plan to employees. 30 This 

is especially important for strip clubs, which often have 50 

employees working full-time in management, security, 

bartending, and food service. 31 Since its passage, the courts 

have used the FLSA to establish a five-part economic 

realities test to determine who qualifies for protections as a 

full employee, as opposed to an independent contractor. 

First described in the case Reich v. Circle C Investments, 

the test includes: ?the degree of control exercised by the 

alleged employer, the extent of the relative investments of 

the worker and alleged employer, the degree to which the 

worker?s opportunity for profit and loss is determined by 

the alleged employer, the skill and initiative required in 

performing the job, and the permanency of the 

relationship.? 32 The Reich test was used to grant dancers 

employee status in Hart v. Rick?s Cabaret and has been 

applied locally in three Rhode Island cases. 

Precedential FLSA Cases 

Reich v. Circle C Investments, Inc. 

The case Reich v. Circle C Investments, Inc. in the United 

States Court of Appeals for the Fifth Circuit established 

precedent for future FLSA cases. Robert Reich, Secretary 

of Labor, sued Circle C Investments, owner of the clubs 

?Lipstick? and ?Crazy Horse Saloon,? claiming that the 

company?s dancers were employees under the FLSA. 33 

After analyzing the five-part FLSA criteria, the district 

court determined that the dancers were in fact employees. 34 

The appeals court affirmed this decision, but remanded the 

case back to the district court to determine whether the tips 

paid by the dancers, the expenditures for the costumes and 

uniforms worn by the dancers, and the fines imposed on 

employees were all taken into account in the calculation of 

the owed wages. 35 The establishment of the FLSA test for 

determining employment status was paramount in every 

subsequent case regarding strippers?employment status. 

Hart v. Rick?s Cabaret 

In Hart v. Rick?s Cabaret, dancers Sabrina Hart and Reka 

Furedi represented a larger class of dancers and brought 

five specific claims under the FLSA and the New York 

Labor Law (NYLL): misclassification of labor, failure to 

pay minimum wage under the FLSA and the NYLL, 

unlawful requesting and receiving of portions of plaintiffs? 

wages in violation of NYLL, unlawful retention of 

plaintiffs? gratuities in violation of NYLL, and unlawful 

deduction of wages by imposing fines and penalties in 

violation of NYLL. 36 

To reach a decision, the court first conducted an analysis of 

employment status. The court found that Rick?s Cabaret 

held an immense degree of control over the dancers, 

including a system of extensive fines and written 

guidelines. The club dictated the length of the dancer?s 

dress, what style heels she could wear, and her attitude, 

and banned chewing gum to create a more ??upscale club? 

29. Fair Labor Standards Act 29 U.S.C.S. ch.8 (1938) (amended 2007). 

30. Patient Protection and Affordable Care Act, 42 U.S. Code § 18001 (2010) (amended 2015). 


32. Reich v. Circle C Invs., 998 F.2d 324, 327-328 (5th Cir. 1993). 

33. Ibid., at 329-330. 

34. Ibid. 

35. Ibid., at 330-331. 

36. Hart v. Rick's Cabaret Int?l, Inc., 967 F. Supp. 2d 901, 904-905 (S.D.N.Y. 2013). 


38



feel.? 37 Similarly, the club imposed discipline or 

termination when dancers violated the rules. In fact, Rick?s 

imposed 7,000 fines on dancers between 2005 and 

February 2010. These consisted of 5,897 fines for not 

showing up to a scheduled shift and 227 fines for lateness. 

More infrequently, fines were for ?refusing a drink or a 

bottle,? using the public restroom, leaving without 

permission, and ?slow work on stage.? 38 Although Rick?s 

Cabaret often credited fines back to the dancers, many 

dancers only received their money back when they audibly 

complained. However, the court concluded that not all 

guidelines were indicative of control. Prohibiting pole 

tricks on the small stage protected the safety of the dancers 

and prohibiting the exposure of tan lines protected dancers 

legally from accidentally exposing private areas. 

Nevertheless, the court concluded that the potential power 

of the employer to impose fines or restrictions, even if 

exerted infrequently, was still a mark of control and 

contradicted dancers?status as contractors. 

The court cited precedent from the Reich case, quoting the 

Fifth Circuit?s statement that exotic dancers are ?far more 

closely akin to wage earners toiling for a living, than to 

independent entrepreneurs seeking a return on risky capital 

investments.? 39 Unlike the dancers, Rick?s Cabaret had a 

comparatively large investment in its business and had 

large margins for profit and loss. The defendants countered 

this reasoning by stating that dancers had extensive control 

over their work by scheduling how many shifts they could 

take a week, as well as by building relationships with 

customers to entice them. The court deemed that the 

factors of control and investment favored employee 

status. 40 As to the final three factors of integration, 

permanency, and skill, the court ruled the dancers were 

well integrated into the functioning of the business, were 

partially permanent employees, and required minimum 

skill to start working. 41 

Rick?s Cabaret then argued that even if the dancers were 

classified as employees, the club had exceeded its 

minimum wage obligations through performance fees. 42 

Every dance in the club had a mandatory service charge 

that was paid directly to the dancers. According to the 

club?s records, the amount of performance fees redeemed 

by credit card (cash was paid directly) totaled $33.8 

million from 2005 to 2012. 43 Calculated per hour worked 

for each individual dancer, this amounted to an average of 

23 dollars per hour. If performance fees counted toward the 

wage requirement, the club would have paid the dancers 

above minimum wage. 

The court found this argument unpersuasive. First, the 

plaintiffs asserted that the calculation for minimum wage 

was wrong because the club did not calculate the fees paid 

to dancers individually on a weekly basis. The plaintiffs 

calculated that for 87.27 percent of dancers (of the 

approximately 1,900 dancers in the case), the hourly rate 

fell below the minimum wage for at least one week during 

their employment. The court found that the fees did not 

count as ?tip credit? towards minimum wage under the 

FLSA, as (1) they were not printed on any receipts, (2) the 

club did not pay employees directly but instead had 

patrons pay the employees, and (3) the employees were not 

37. Ibid., at 916. 

38. Ibid., at 917. 

39. Ibid., at 920. 

40. Ibid. 

41. Ibid., at 920-923 

42. Ibid., at 929-931. 

43. Ibid., at 927-28. 


39



properly notified. 44 The court?s thorough review of the 

strip club?s practices led to the determination that Rick?s 

Cabaret failed to properly classify its dancers as employees 

and unduly profited off of the dancers. Since the plaintiffs 

were the main representatives of the class action lawsuit 

against Rick?s Cabaret, the decision to grant FLSA 

certification and award backwages gave legal protection to 

many dancers who otherwise would be unable to sue the 

club individually. 

Hart and Reich established a valuable framework for 

addressing current dancer claims to employee status under 

the FLSA. The same standard of review was used in both 

cases as in the Rhode Island cases. Although Hart was a 

New York case and used the NYLL to address the legality 

of fines, it was an invaluable interpretation of the law to 

find compulsory ?tipping out? in violation of labor laws. 

This is true especially in light of protections for wage 

deductions that exist in Rhode Island as well. Under the 

General Laws of Rhode Island § 28-14-3.2, employers 

may not make wage deductions for ?fines or penalties for 

tardiness, misconduct, or quitting without notice.? 45 While 

none of the recent Rhode Island cases address the legality 

of fines in clubs, Hart demonstrated that arbitrary fines 

and deductions from dancers? earnings were reasonably 

deemed illegal. 

Rhode Island FLSA Cases 

This section addresses three recent cases involving the 

FLSA and arbitration in Rhode Island. Levi v. Gulliver?s 

Tavern Inc. and Pizzarelli v. Cadillac Lounge, L.L.C. 

considered the issue of FLSA labor classification while 

Binienda v. Atwells Realty Corp. addressed the issue of 

arbitration within a FLSA case in a Rhode Island context. 

These cases reclassified dancers as employees under the 

FLSA, thus changing the way these specific strip clubs are 

legally allowed to operate, and further demonstrating the 

need for more formal, top-down enforcement of this FLSA 

interpretation. 

Levi v. Gulliver?s Tavern Inc. 

In the April 2018 case Levi v. Gulliver?s Tavern, heard 

before the United States District Court for the District of 

Rhode Island, dancers Ruby Levi and Emily Chicoine 

alleged that the owners of the Providence strip club ?Foxy 

Lady? violated the FLSA by misclassifying them as 

independent contractors instead of employees. The 

plaintiffs? success would entitle them to back pay of 

minimum wage and continued minimum wage pay, ensure 

that tip outs could no longer be enforced, and mandate 

benefits for full-time dancers. The court used the five-part 

FLSA analysis established under Reich to decide the 

case. 46 

The court reasoned that the club exerted control over 

plaintiffs through various means, such as the ?house mom? 

exercising full discretion over employment decisions 

during the hiring process. The club also controlled when 

dancers could work, meaning that they could not perform 

without permission from the club. Additionally, dancers 

were required to follow the club?s rules, such as submitting 

to drug tests, minimum fee requirements, and house fees. 

However, dancers were not required to perform on a 

designated shift and could walk in for unscheduled shifts. 

In the opinion of the court, control over a worker is 

holistic, meaning that despite dancers being able to walk 

in, other means of authority, like the ?house mom? acting 

as a de facto manager, were indicative of control over 

workers. The court found that these factors pointed to 

employee status. 47 

44. Ibid., at 929-931; Fair Labor Standards Act 29 U.S.C.S. ch.8 (1938) (amended 2007). 

45. R.I. Gen. Laws § 28-14-3.2 (2016) (amended 2017). 

46. Levi v. Gulliver?s Tavern, Inc., C.A. No. 15-216 U.S., 1 (D.R.I. 2018). 

47. Ibid., at 9-13. 


40



Furthermore, club owners?heightened financial investment 

in the business as contrasted with the dancers indicated 

full-employee status. The club owners paid for nearly all of 

the financial overhead, such as the lighting, rent, DJ, and 

the liquor license. Dancers only paid for their cosmetics 

and the house fee, although some had spent up to $15,000 

on cosmetics during their tenure at the club. 48 The dancers? 

comparatively small investment into their costumes and 

makeup was more akin to an employee buying their own 

uniform than to an independent contractor?s full 

participation in business practices. Additionally, the 

relative balance of profit and loss also pointed to 

employment status. The dancers?opportunity for profit or 

loss was only marginal, as they suffered a 10 percent loss 

when they redeemed the in-house currency and spent large 

sums of money on cosmetics and costumes. However, the 

defendants made money by collecting house fees, cover 

charges to enter the club, and revenue from food and 

alcohol. Thus, the club was in a position to lose and gain 

significantly more than the dancers, marking the difference 

between employer and employee. 49 

As to degree of skill, this factor also favored employee 

status. The defendants claimed that dancers only invested 

in their appearances to increase their profits. However, the 

court rejected this argument using the decision from Hart; 

dancers could be hired without any skill, and pointing to 

dancers investing in themselves in order to ?hustle? better 

was not considered valid proof of contractor status. 50 Since 

prior degree of skill was not a determining factor for 

employment in the strip club, the skill and initiative 

displayed by the plaintiffs in enhancing their appearances 

did not imply that they were in business for themselves. 

However, one factor indicated independent contractor 

status. Because multiple dancers had worked at other clubs 

during their employment at the ?Foxy Lady? and were able 

to take extended leaves from working, their employment 

was ?temporary and itinerant.? 51 Yet this factor, common 

to nearly every other FLSA dancer case, such as Hart, 

Pizzarelli, and Binienda, and very common for dancers 

overall, was only permitted by the independent contractor 

classification that was the root of this case. 

The final factor, being an integral part of the business, also 

pointed in the direction of employee status. Since the 

?Foxy Lady? used photos of dancers on its website, made 

money from food and alcohol sales during the dances, and 

profited directly from house fees, the presence of dancers 

was integral to the success of the strip club. The club 

simply could not run without dancers. 52 

In consideration of these factors, the court found that 

dancers should be classified as employees under the FLSA. 

Furthermore, the court found that dancers were employees 

under Rhode Island law, since the defendants retained the 

right to control entertainers through policies such as drug 

testing. The plaintiffs were granted class action 

certification under Rule 23 of the Federal Rule of Civil 

Procedure and denied summary judgment in favor of the 

defendant. 53 The granting of class action certification was 

important to the success of the case, as it allowed for 

dancers, who individually lost small sums of money, to 

exercise collective power. Additionally, the usage of class 

48. Ibid., at 12-13. 

49. Ibid., at 13-16. 

50. Ibid., at 16-17. 

51. Ibid., at 17-18. 

52. Ibid., at 18-19. 

53. Summary judgment is a motion that grants a ruling to a party before a trial happens. For a summary judgment to be granted, the party must show that there is no 

dispute as to the fundamental facts of the case and that judgment to the party would be no different if a reasonable jury examined the case. 


41



action for determining employee status allowed for large 

groups of dancers to take action against illegal deductions 

from wages and an unjust work environment, while also 

discouraging future use of the club?s employment 

structure. 

Levi v. Gulliver?s Tavern is a direct reflection of Hart v. 

Rick?s Cabaret: the application of the five-part FLSA test 

was nearly identical in both cases. The uniform 

interpretation of federal laws with regards to strippers? 

work classification and the universal appreciation of their 

work conditions signify precedent for future FLSA rulings. 

Pizzarelli v. Cadillac Lounge, L.L.C. 

Pizzarelli v. Cadillac Lounge L.L.C., heard before the 

United States District Court for the District of Rhode 

Island, also addressed the question of misclassification 

under the FLSA. Plaintiff Marisa Pizzarelli alleged that the 

club Cadillac Lounge misclassified her and other dancers 

as independent contractors instead of employees. 54 The 

case was similar to Levi, as Pizzarelli was a dancer subject 

to similar rules and regulations: she auditioned for the club 

and was accepted at the sole discretion of the ?house 

mom,? had shifts, and was required to pay house fees. 

When applying the six part standard of the FLSA, the court 

had identical findings to the Levi case. Although the club 

attempted to distinguish itself from other FLSA cases by 

claiming that it did not impose strict rules or penalties for 

violations, as seen in Hart and Levi, the court held that 

there can be other aspects of control that are not financial 

penalties. In this case, the mandates required for 

performing at the club and its discretion in allowing 

dancers to perform were sufficient evidence in favor of 

control. 55 The dancers had significantly less financial 

investment than the club, had much smaller opportunities 

for profit or loss, did not require substantive skill to be 

hired, had a non-permanent relationship with the club, and 

were integral to the business. The court ruled that the 

dancers should be classified as employees under the FLSA 

and under Rhode Island law. 56 The court yet again affirmed 

what has become almost self apparent; for all intents and 

purposes, dancers are full employees and ought to be 

treated as such. 

Binienda v. Atwells Realty Corp 

In the final case, Binienda v. Atwells Realty Corp, the 

Rhode Island District Court addressed a similar FLSA 

claim against the club ?Club Desire,? in which the 

defendants moved to dismiss the claim and compel the 

plaintiff to engage in arbitration. 57 Arbitration would have 

had the dispute resolved by a judge-approved third party 

who would decide the monetary outcome instead of having 

the case argued before a judge. However, the movement 

for arbitration was over two years after the case was filed. 

The question before the court was whether the defendants 

had waived their arbitration rights by waiting for that 

period. If the court found that the defense waived their 

arbitration right, it would allow the case to proceed in 

court and address the issue of FLSA designation instead of 

becoming an independent settlement. 

The court analyzed undue delay and prejudice to the 

plaintiff to decide this question. The court found that since 

the contract was in the possession of the defendants for the 

entire duration of the case, defendants? delay was 

excessive. The court also found that the plaintiff would be 

prejudiced by compelled arbitration, as she had already 

spent two years in litigation. The parties later agreed to an 

54. Pizzarelli v. Cadillac Lounge, L.L.C., C.A. No. 15-254, 1, 1-2 (D.R.I. 2018). 

55. Ibid., at 5-7. 

56. Ibid., at 7-18. 

57. Binienda v. Atwells Realty Corp., C.A. No. 15-253, 1, 1-4 (D.R.I. 2018). 


42

FLSA settlement, which the court approved. 58 FLSA 

settlements, unlike arbitration, are court-approved and 

nearly always award the prior wages, while arbitration can 

reach a settlement independent of FLSA status and does 

not guarantee a full reward of the wages. 59 

Each of the Rhode Island cases established valuable legal 

protections for exotic dancers. First, dancers are 

employees, not contractors, under both the FLSA and 

Rhode Island law. Second, even if a club does not impose 

fines, other factors of control can indicate an 

employer?employee relationship. Third, the motion to 

compel arbitration is not absolute, and even if a dancer had 

an arbitration agreement, compelling such can be 

prejudiced against the dancers. The FLSA effectively 

provides a legal remedy for protecting dancers?labor rights 

and receiving restitution for lost wages. 

Conclusion 

In response to the pressing need to ensure safe and 

equitable working conditions, the usage of the FLSA to 

grant employee status is the most coherent and appropriate 

legal mechanism. The hostile work environment, the 

sexual nature of the work, the overt use of alcohol, the 

covert use of drugs, and the constant efforts from dancers 

to protect themselves against patrons makes stripping one 

of the most difficult and risky jobs. 60 First Amendment 

protections have been unsuccessful in securing dancers? 

rights; ensuring a safe work environment for strippers is 

made even more difficult by the incidental infringement on 

forms of dancing and dancer conduct. 



If federal courts have held since 1993 that dancers are 

classified as employees under the FLSA, why are dancers 

continually required to sign independent contractor 

agreements? As stated in Hart, clubs profit by knowingly 

taking advantage of dancers, and they hope that the 

dancers are not knowledgeable about their legal rights. The 

hope of the club owners lies within the demographic of 

dancers? many are impoverished, in debt, don?t speak 

English, have kids, or are undocumented immigrants, as 

clubs require only a driver?s license to be hired. Due to the 

repressive nature of club management, many dancers are 

afraid to speak out and break unspoken rules. In my 

interview with a former dancer in Providence, named 

Sarah, she described changes in policy requiring all 

dancers to abide by specific attire at her former club? a 

move that many feared would jeopardize their income. 

?Around 15 percent of girls would quit with every costume 

policy change. [The policies] were very restrictive. . . . 

These girls moved to different clubs with no restrictions. 

. . . Management was very ferocious about not hiring girls 

back and spoke very ill of them. . . . They just didn?t care 

about the girls.? 61 One can imagine that if the management 

was dedicated to not rehiring dancers who left because of 

the clothing policy, the repercussions for filing a lawsuit 

against the club would be significantly worse for a 

dancer?s reputation. Additionally, the New York Times 

covered the effect of these lawsuits. One dancer stated that 

the management simply ?didn?t change their policies? in 

wake of the Hart case.? 62 

It is in the best interest of United States society and it is 

well within the legal obligation of the federal and state 

governments to classify dancers as employees instead of as 

58. Ibid., at 11-12. 

59. Adam Klein, Mark Humowiecki, and Tarik Ajami, ?Settlements 101: The Fair Labor Standards Act? (Outten & Golden LLP), March 23, 2022, 

https://www.outtengolden.com/sites/default/files/the_fair_labor_standards_act.pdf. 


61. Ibid. 

62. Valeriya Safronova, ?Strippers Are Doing It for Themselves,? New York Times, July 24, 2019, https://www.nytimes.com/2019/07/24/style/strip-clubs.html. 


43



independent contractors. No workplace should be able to 

circumvent federal law by exploiting illegal independent 

contractor agreements. The same logic applies to other 

jobs: pizza delivery drivers are employees, as they are 

integral to the function of the business and the business 

controls their delivery arrangements. The spread of the 

independent contractor model from the exotic dancing 

industry to other businesses would put employees under 

the same stressors as dancers. Under the independent 

contractor model, dancers only have one guarantee per 

shift: they will have to pay house fees. There is no 

minimum wage backstop for a slow night, meaning that 

dancers can end a night in the negative. Additionally, there 

is no valid justification for forcing dancers to tip out the 

other workers in the club. Although there is a set minimum 

for tip out, typically 20 dollars, many high-performing 

dancers will pay more in order to gain favor with the DJ, 

who has the sole determination of placing dancers on stage 

during peak hours of the night. Classifying dancers as 

employees would end these illegal deductions. 63 

Furthermore, classifying dancers as employees would 

allow them to earn benefits. If a dancer works at a club for 

ten years, there is no reason that a bartender working at the 

club for the same time duration should be eligible for 

benefits but she is not. Despite California v. La Rue 

classifying stripping as ?bacchanalian revelries,? stripping 

is a legitimate profession and dancers should be afforded 

the same rights and protections as any other employee. 64 

Providing strippers with the same employee status as the 

other workers in the club would allow them to receive 

healthcare, a stable guaranteed income, and protection 

from arbitrary wage reductions. 

63. Ibid. 

64. Cal v. La Rue, 409 U.S. at 124 (1972). 


44

JUDICIAL EXPANSION AND 

LEGISLATIVE CONTRACTION: 

AN ANALYSIS OF TWO LANDMARK 

DOMESTIC VIOLENCE ASYLUM CASES 

Eunice Chong '22 

ABSTRACT 

This paper explores refugee claims made on the basis of gender-related persecution. It analyzes two landmark 

domestic violence asylum claims filed by Pakistani women in the United Kingdom and Australia. In doing so, it 

shows how these two cases loosened the constraints of international refugee law by adopting broad 

interpretations of the 1951 Refugee Convention. At the same time, these cases provoked domestic legislation 

that aimed to narrow the definition of a refugee, ostensibly to prevent large numbers of refugees from entering 

the country. Ultimately, this paper argues that the United Kingdom and Australia cases simultaneously 

expanded and contracted the scope of gender-based refugee claims. This paper concludes by offering both legal 

and policy solutions to streamline future gender-related refugee cases. 


45

Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases 

Introduction 

In 2020, women represented half of the world?s 20.7 

million refugees. 1 Women and children are often part of 

large-scale movements of people fleeing conflict, 

persecution, discrimination, disasters, environmental 

degradation, and poverty. Women and girls face gendered 

risks in migration: the risk of sexual and gender-based 

violence is high, as are the risks of psychosocial stress and 

trauma, health complications, physical harm, injury, and all 

forms of exploitation, including trafficking in human 

beings. 2 Migrant women and girls are commonly subjected 

to gender-based discrimination. 

Women who are able to flee their home country can seek 

protection under the 1951 Refugee Convention. The 

Convention is a United Nations agreement that sets out the 

requirements for refugee status, the rights of asylum 

seekers, and the responsibilities of countries that grant 

asylum. The 1967 Protocol removed the temporal and 

geographic restrictions on the definition of a refugee in the 

1951 Convention. Together, the Convention and Protocol 

are the sole legally binding international instrument for 

providing protections to refugees. 149 countries are parties 

to the Convention. Article 1A(2) of the Convention defines 

a refugee as a person who 

owing to a well-founded fear of being persecuted for 

reasons of race, religion, nationality, membership of a 

particular social group or political opinion, is outside 

the country of his nationality and is unable or, owing 

to such fear, is unwilling to avail himself of the 

protection of that country. 3 

Notably, sex and gender are absent from the list of reasons 

enumerated by the Convention as grounds for seeking 

asylum from persecution. Given the historical context, it is 

likely that the drafters of the Convention simply failed to 

imagine that a woman would ever become a refugee. The 

Convention was drafted and adopted in the aftermath of 

the Second World War and at the start of the Cold War. 

The image of a ?single, male, political activist fleeing 

persecution by the state? informed the drafters?impression 

of who might become a refugee. 4 

Despite the absence of gender from Article 1A(2), the 

position of the United Nations High Commissioner for 

Refugees (UNHCR) is that the refugee definition, 

?properly interpreted,? covers gender-based claims. 5 As 

such, the UNHCR sees no reason to ?add an additional 

ground to the 1951 Convention definition.? 6 In practice, 

however, the lack of an explicit provision for gender-based 

persecution has made it difficult for women to seek asylum 

on that ground. Female victims of domestic violence, for 

instance, have found limited success in claiming that 

violence that occurs within a private home amounts to 

persecution when the state offers no protection. Of the five 

reasons for persecution included in the Convention, the 

?membership of a particular social group? category 

appears to be the most suited to women claiming asylum 

on gender-based grounds. However, such claims raise 

further questions. What defines membership of a particular 

social group? Can women in certain societies constitute a 

particular social group? 

1. UNHCR, ?Figures at a Glance,? UNHCR ? The UN Refugee Agency, June 18, 2021, https://www.unhcr.org/en-us/figures-at-a-glance.html. 

2. Committee on the Rights of All Migrant Workers and Members of their Families et al., ?Addressing gender dimensions in large-scale movements of refugees and 

migrants,? UN Women, September 19, 2016, 

https://www.unwomen.org/en/news/stories/2016/9/statement-addressing-gender-dimensions-in-large-scale-movements-of-refugees-and-migrants. 

3. UNHCR, ?Convention and Protocol Relating to the Status of Refugees,? July 28, 1951, 189 UNTS 137:14, 

https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugee.html. 

4. Nora Honkala, ?Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal and Another, ex parte Shah (1999),? in Women?s Legal 

Landmarks: Celebrating the history of women and law in the UK and Ireland, ed. Erika Rackley and Rosemary Auchmuty (London: Bloomsbury Publishing, 2018), 

https://centaur.reading.ac.uk/91824/1/16Jul2020Honkala%20WLLP%20Chapter%20.pdf, 2. 

5. UNHCR, ?Guidelines on International Protection No. 1: ?Gender-Related Persecution?within the context of Article 1A(2) of the 1951 Convention and/or its 1967 

Protocol relating to the Status of Refugees,? HCR/GIP/02/01 (May 7, 2002), 

https://www.unhcr.org/en-us/publications/legal/3d58ddef4/guidelines-international-protection-1-gender-related-persecution-context.html, 3, para. 6. 

6. Ibid. 


46

This paper argues that two landmark domestic violence 

refugee cases in the United Kingdom and Australia 

simultaneously expanded and contracted the scope of 

gender-based refugee claims. It begins by exploring 

competing interpretations of ?particular social group? 

within the meaning of the Convention. It then analyzes the 

two gender-based asylum claims made by Pakistani 

women in the United Kingdom and Australia. In doing so, 

it shows how these two cases loosened the constraints of 

international refugee law by adopting broad interpretations 

of ?particular social group? and ?persecution.? At the same 

time, these cases provoked domestic legislation that aimed 

to narrow the definition of a refugee, ostensibly to prevent 

large numbers of refugees from entering the country. This 

paper concludes by offering both legal and policy solutions 

to streamline future gender-related refugee cases. 

Approaches to Interpreting ?Particular Social Group? 

According to Article 1A(2) of the Convention, an asylum 

seeker must prove the following in order to qualify as a 

refugee: 


(1) That she has a well-founded fear of persecution. (2) 

That the persecution would be for reasons of race, 

religion, nationality, membership of a particular social 

group, or political opinion. (3) That she is outside the 

country of her nationality. (4) That she is unable, or 

owing to fear, unwilling to avail herself of the 

protection of that country. 7 

The third and fourth conditions are straightforward. The 

physical location of the asylum seeker is unambiguous. 

The seeking of asylum itself normally indicates an 

inability or unwillingness to avail oneself of the protection 

of one?s country of nationality. The first condition may be 

more complicated when one or more of the agents of 

persecution is a non-state actor, but it is for the most part 

an issue of fact. The principal difficulty lies in proving that 

the persecution would be for one of the five reasons listed 

in the Convention. In particular, how is the condition of 

?membership of a particular social group? satisfied as a 

matter of law? 

The travaux préparatoires for the Convention? the official 

records of the negotiations? are notably unhelpful in 

determining the intent of the drafters. They mention only 

that the phrase ?membership of a particular social group? 

was added at the last minute by the Swedish delegate, who 

said that ?experience had shown that certain refugees had 

been persecuted because they belonged to particular social 

groups.? 8 The UNHCR?s Handbook is similarly vague, 

reading: ?A ?particular social group? normally comprises 

persons of similar background, habits or social status.? 9 

There exists, however, a wealth of case law discussing the 

social group category. While U.S. courts rarely cite foreign 

law, the courts in Australia, Canada, New Zealand, and the 

United Kingdom tend to read and cite cases decided in 

other common law states. Thus, the competing approaches 

to interpreting ?particular social group? outlined in two 

U.S. cases from the 1980s are relevant to gender-related 

refugee claims across all common law jurisdictions. 

In Matter of Acosta, the Board of Immigration Appeals 

established immutability as the foundational requirement 

of a particular social group. 10 In this 1985 case, a group of 

Salvadoran taxi drivers claimed asylum under the 1951 

Refugee Convention on the basis that they feared 

persecution from an organized group of taxi drivers in El 

Salvador. Their claim was dismissed on the ground that the 

Salvadoran taxi drivers did not constitute a particular 

social group. The board reached its decision using the 

doctrine of ejusdem generis, which holds that ?general 

words used in enumeration with specific words should be 

construed in a manner consistent with the specific 

7. Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals) [1999] 2 

AC 629 (HL), [4]. 

8. Islam and Shah 2 AC 629, [15]. 

9. UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 2019), 24, para. 77. 

10. Matter of Acosta 19 I. & N. Dec. 211 (BIA 1985). 


47


words.? 11 In Article 1A(2) of the Convention, race, 

religion, nationality, and political opinion all describe a 

words, fear of persecution cannot be the only thing that 

unites members of the group. To argue otherwise would 

shared, immutable characteristic. 12 Ejusdem generis render the social group category meaningless. 17 It is 

dictates that membership of a particular social group 

would have to similarly depend on an immutable 

characteristic such as sex. The board accordingly restricted 

refuge ?to individuals who are either unable by their own 

actions, or as a matter of conscience should not be 

required, to avoid persecution.? 13 Since taxi driving is a 

profession rather than an immutable trait, the Salvadoran 

taxi drivers were denied asylum. Immutability alone was 

the decisive factor in determining whether a group of 

people constituted a particular social group. 

against this backdrop of competing legal standards? in 

particular, the weighing of immutability, cohesion, and 

independence of persecution? that two landmark domestic 

violence asylum cases came before the supreme courts in 

the United Kingdom and Australia. 

Two Landmark Domestic Violence Asylum Cases 

The centrality of the term ?particular social group? to 

gender-related refugee claims is apparent in two landmark 

domestic violence asylum cases. In the United Kingdom, 

the House of Lords?judgment in Islam (A.P.) v. Secretary 

Conversely, the Ninth Circuit Court of Appeals considered 

of State for the Home Department and Regina v. 

additional requirements in determining the existence of a 

Immigration Appeal Tribunal and Another Ex Parte Shah 

particular social group in Sanchez-Trujillo v. Immigration 

(A.P.) (Conjoined Appeals) marked a significant turning 

and Naturalization Service. 14 In this 1986 case, a group of 

point in the case law. It established that gender in itself 

young, working-class Salvadoran men who had not 

could define a particular social group within the meaning 

enlisted in the Salvadoran military claimed asylum. They 

of the Convention. The High Court of Australia drew 

argued that they would be persecuted if they were returned 

heavily on the House of Lords?reasoning in Minister for 

to El Salvador. The Ninth Circuit rejected their claim on 

Immigration and Multicultural Affairs v. Khawar. The 

several grounds, including for failure to meet the definition 

High Court established that a woman fleeing domestic 

of a particular social group, which it interpreted as a 

violence might be entitled to asylum if she could 

?homogeneous and cohesive group.? 15 The Ninth Circuit?s 

demonstrate adequate absence of state protection. 

insistence on cohesion being a necessary component 

Together, the two cases expanded the definitions of 

narrowed the definition of a particular social group 

?particular state group? and ?persecution,? thus expanding 

considerably. 

the definition of a refugee. Both the United Kingdom and 

The competing standards set forth in Acosta and 

Sanchez-Trujillo reflect the lack of international legal 

consensus around the definition of a particular social 

group. The rare common principle that has emerged is the 

idea that there can only be a particular social group if that 

group exists independently of persecution. 16 In other 

Australia are parties to the 1951 Refugee Convention. 

United Kingdom: Islam and Shah (1999) 

Islam and Shah concerned two Pakistani women who were 

subjected to serious domestic abuse and were forced to 

leave their homes. They claimed refugee status in the 


12. Ibid., 7. 

13. Ibid. 

14. Sanchez-Trujillo v. Immigration and Naturalization Service 801 F.2d 1571 (9th Cir. 1986). 


16. Ibid., 5-6. 



48


United Kingdom under Article 1A(2) of the Convention, claimed the right to remain as refugees. The United 

on the ground that they had a well-founded fear of being Kingdom incorporated the Convention into domestic law 

persecuted for the reason of ?membership of a particular in section 8 of the Asylum and Immigration Appeals Act 

social group.? 18 The House of Lords took up the question 1993. Section 8(2) of the Act provides that a person with 

of whether the appellants were members of a particular temporary status ?may appeal to a special adjudicator,? as 

social group within the meaning of the Convention. to do otherwise ?would be contrary to the United 

Kingdom?s obligations under the Convention.? 

Shahanna Islam lived in Pakistan with her two children 

23 

and her husband, who was often violent towards her. 19 Accordingly, both women appealed to the special 

In 

adjudicator. In both cases, the special adjudicator found 

1990, she intervened in a fight between young supporters 

that the women had a well-founded fear of persecution in 

of two rival political factions that broke out at the school 

Pakistan but did not fall within the category of a particular 

where she taught. Her husband was a member of one of the 

social group. 

factions. In retaliation for her intervention, supporters of 

24 Upon unsuccessful appeals to the 

Immigration Appeal Tribunal, the women appealed to the 

that same faction made allegations of adultery against her 

Court of Appeal, which heard the two cases together. 

to her husband. Islam?s husband punished her with severe 

beatings, which resulted in her hospitalization on two The Court of Appeal dismissed both appeals. The decision 

occasions and eventually forced her to flee her home. 20 turned on whether the appellants satisfied the requirements 

Islam and her children entered the United Kingdom in for membership of a particular social group under Article 

1991 and applied for asylum in the same year. 

1A(2). The Court of Appeal held that certain necessary 

characteristics were lacking: namely, the existence of a 

Syeda Shah was pregnant when she was banished from her 

?common uniting attribute? independent of the feared 

home in Pakistan by her husband, who frequently beat 

her. 21 persecution. 

She arrived in the United Kingdom in 1992 and gave 

25 However, the three-judge panel was divided 

over the necessity of cohesion. Lord Justice Staughton, 

birth to a child shortly thereafter. Fearing that her husband 

drawing explicitly on the standard adopted by the U.S. 

would deny paternity and accuse her of adultery if she 

Court of Appeals for the Ninth Circuit in Sanchez-Trujillo, 

returned to Pakistan, Shah applied for asylum the 

wrote that the appellants had not proved that they were 

following year. Both women contended that Pakistan 

?joined together with some degree of cohesiveness, 

offered them no protection from domestic violence and 

co-operation and interdependence.? 

would likely charge them with adultery. In the event of a 

26 Lord Justice Henry 

countered that cohesion was not ?necessary in every case,? 

forced return, they would be subject to risk of flogging or 

stoning to death as punishment for sexual immorality. 22 as in cases ?where the particular social group is recognized 

as such by the public, though is not organized.? 27 Islam 

Islam and Shah entered the United Kingdom as visitors but 

and Shah then appealed to the House of Lords, which 

18. ?Convention Relating to the Status of Refugees,? July 28, 1951, 189 UNTS 137: 14. 


20. Ibid. 

21. Ibid., 12. 

22. Ibid., 1. 

23. Ibid. 

24. Ibid., 3. 

25. Ibid., 4. 

26. Ibid. 

27. Ibid. 


49


functioned as the United Kingdom?s supreme court until women could constitute a particular social group within 

2009. 

the meaning of the Convention. It paved the way for 

women to claim asylum based on gender-related 

The House of Lords held that Islam and Shah qualified as 

persecution, as in the case of Minister for Immigration and 

refugees. The Lords?decision overturned the decision of 

Multicultural Affairs v. Khawar. 

the Court of Appeals. The case of Islam and Shah 

facilitated future gender-related refugee claims by adopting Australia: Khawar (2002) 

a broad interpretation of the words ?particular social 

Minister for Immigration and Multicultural Affairs v. 

group.? Lord Steyn, in his decision, wrote that existing 

Khawar concerned another Pakistani woman who was 

case law did not show that cohesion was an indispensable 

subjected to serious domestic abuse and was forced to 

requirement. 28 He reasoned that introducing an additional 

leave her home. She applied for a protection visa in 

restriction of cohesion ran counter to the ejusdem generis 

Australia on the ground that she had a well-founded fear of 

approach used in Acosta. 29 

persecution under Article 1A(2) of the Convention, due to 

The Lords held that ?women in Pakistan? constituted a her status as a woman in Pakistan. The High Court of 

particular social group. Notably, the Lords went even Australia took up the question of whether the failure of a 

further in expanding the scope of ?particular social group? state to protect women from domestic violence? an 

than had the counsel for the appellants. Counsel had ostensibly private form of persecution? amounted to 

argued that the appellants were a particular social group persecution within the meaning of the Convention. 

only by reason of three characteristics that set them apart 

Naima Khawar and her three children arrived in Australia 

from the rest of society: gender, the suspicion of adultery, 

in 1997 and applied for protection visas in that same year. 

and their unprotected status in Pakistan. 30 Lord Steyn 

Australia incorporated the Convention into domestic law 

endorsed a more expansive definition in writing that 

through Migration Act 1958, which provides that 

Pakistani women were members of a particular social 

non-citizens can apply for protection visas under the 

group because the state discriminated against women as a 

reasons enumerated in the Convention. 33 The applications 

group. 31 Lord Hoffmann added that what made domestic 

for protection visas were refused. Khawar appealed to the 

abuse persecution in Pakistan was the fact that the state 

Refugee Review Tribunal, which affirmed the prior 

sanctions and tolerates discrimination against women, 

decision. Before the Tribunal, Khawar alleged that she had 

including by deeming the evidence of men more credible 

gone to the Pakistani police on four occasions to complain 

than the evidence of women. 32 Therefore, the Lords found 

of the violence she was suffering at the hands of her 

that Islam and Shah were persecuted by reason of 

husband. 34 On each occasion, she alleged, the police were 

membership of a particular social group and qualified for 

indifferent and refused to help her. 

refugee status. 

The Tribunal rejected the premise that the alleged domestic 

Islam and Shah was groundbreaking in establishing that 

abuse amounted to persecution within the meaning of the 

28. Ibid., 9. 

29. Ibid., 8. 

30. Ibid., 9. 

31. Ibid. 

32. Ibid., 13. 

33. Minister for Immigration and Multicultural Affairs v. Khawar [2002] 210 CLR 1 (HCA), para. 1. 

34. Ibid., para. 10. 


50


convention, because the agents of persecution were non-state agents and even to state inaction. 38 The court 

motivated by personal reasons rather than by Khawar?s noted that ?whether failure to act amounts to conduct often 

membership in any particular social group. Namely, the depends upon whether there is a duty to act.? 39 In this case, 

Tribunal reasoned, Khawar?s husband and his family since Khawar was a Pakistani citizen, the failure of the 

abused her because she brought no dowry to the family police to protect her from domestic violence constituted a 

and because of their own personal dislike of her. 35 They serious neglect of duty on the part of the state. If Khawar 

did not abuse her because she was a woman in Pakistan, could present evidence before the Tribunal that domestic 

according to the Tribunal. The Tribunal determined that violence was not only overlooked by the state but 

the attitude of the Pakistani police was irrelevant insofar as condoned, as an aspect of systematic discrimination 

it did nothing to convert private harm ?for reasons having against women in Pakistan, then state inaction would even 

nothing to do with any of the grounds set out in Article more closely resemble conduct. 40 The court believed that 

1A(2) into persecution for one of the reasons stated.? 36 such a presentation was possible, in light of the evidence 

presented in Islam and Shah concerning the position of 

Khawar appealed to the Federal Court of Australia, which 

women in Pakistani society. 

ruled that the Tribunal had erred in law and referred the 

41 Chief Justice Gleeson noted 

that the Tribunal?s original decision was given before the 

case back to the Tribunal. The Minister for Immigration 

House of Lords decided Islam and Shah. 

and Multicultural Affairs appealed to the Full Court of the 

42 

Federal Court, which dismissed the appeal. The Minister Given the court?s expanded interpretation of persecution, 

then appealed to the High Court of Australia, which serves Chief Justice Gleeson concluded that the failure of the 

as Australia?s supreme court. The High Court held that the state to act was not only relevant but essential to the case. 

decision of the Federal Court was correct. The appeal was The absence of state protection was the ?bridge? that 

dismissed and the case was referred back to the Tribunal. turned private harm into public persecution. 43 

The High Court refuted the Tribunal?s argument that 

Khawar was not persecuted within the meaning of Article 

1A(2). Chief Justice Gleeson accepted that ?the paradigm 

case of persecution contemplated by the Convention is 

persecution by the state itself.? 37 The chief justice noted, 

however, that Article 1A(2) refers not to a ?persecutor? but 

to ?persecution.? Given that formulation, the court 

reasoned that persecution denoted more than just state 

action: it could refer to the combined conduct of state and 

In Islam and Shah, the House of Lords recognized that 

domestic violence did not occur in a vacuum. Rather, 

domestic violence by non-state agents constituted 

persecution because it occurred in a society that 

systematically discriminated against and refused to protect 

women as a group. Similarly, Khawar?s husband and his 

family did not abuse her merely because they disliked her. 

They abused her because she was a woman in 

Pakistan? because they knew that the state would not 

35. Ibid., para. 10. 

36. Ibid., para. 13. 

37. Ibid. 

38. Ibid., 6, para. 22. 

39. Ibid., 7, para. 27. 

40. Ibid., para. 25-26. 

41. Ibid., para. 25. 

42. Ibid., 3, para. 13. 

43. Ibid., 5, para. 19. 


51


protect her. Therefore, the High Court held that as a matter Shah in many common law jurisdictions, including in New 

of law, it was entirely plausible that Khawar was Zealand. 44 Since Islam and Shah, women fleeing domestic 

persecuted by reason of membership of a particular social violence from Afghanistan, Albania, China, Ethiopia, Iran, 

group. The facts? that is, the veracity of Khawar?s Kenya, Moldova, Sierra Leone, Somalia, and Ukraine have 

allegations of domestic abuse? were left to the Tribunal to successfully claimed refugee status on the basis of 

determine. 

state-sanctioned discrimination and subsequent lack of 

state protection in their countries of origin. 

The High Court?s decision in Khawar echoed Islam and 

45 Baroness 

Hale, who served as President of the Supreme Court of the 

Shah by expanding the scope of the word ?persecution? in 

United Kingdom until 2020, observed that ?the world has 

Article 1A(2) to include non-state agents. It facilitated 

woken up to the fact that women as a sex may be 

future gender-related refugee claims by demonstrating how 

persecuted . . . because of the inferior status accorded to 

the absence of state protection can turn domestic violence 

their gender in their home society.? 

into a matter of international concern. 

46 

On the other hand, cases such as Islam and Shah and 

Legal and Political Impacts of Islam and Shah and 

Khawar have provoked domestic legislation narrowing the 

Khawar 

definition of a refugee. The tension between judicial 

Cases like Islam and Shah and Khawar have had divergent 

expansion and legislative contraction can be attributed to 

impacts on law and public policy. On the one hand, these 

states? discomfort with giving up any aspect of their 

decisions have facilitated gender-related refugee claims by 

sovereignty. In a concurring opinion in Khawar, Justices 

expanding the accepted definitions of ?particular social 

McHugh and Gummow noted that ?states the world over 

group? and ?persecution? in law. The House of Lords 

consistently have exhibited great reluctance to give up 

endorsed a broad interpretation of ?particular social group? 

their sovereign right to decide which persons will, and 

by discarding the cohesion requirement introduced in 

which will not, be admitted to their territory, and given a 

Sanchz-Trujillo and positing that state-sanctioned and 

right to settle there.? 47 

state-tolerated discrimination was a relevant factor. The 

Such reluctance is evidenced by the fact that Islam and 

High Court of Australia demonstrated how private harm by 

Shah was the first case on whether women constituted a 

non-state agents can constitute persecution under the 

particular social group to ever reach the House of Lords. 

Convention when coupled with the absence of state 

48 

This was no accident. The Home Office? the department 

protection. In doing so, these courts created more avenues 

responsible for immigration, security, and law and order in 

for women to claim that they were persecuted due to 

the United Kingdom? had pursued a strategy of deterring 

membership of a particular social group. The existence of 

such claims by offering some women ?exceptional leave to 

these avenues, in turn, has made it easier for women to 

remain,? which would allow them to stay in the country 

satisfy the four conditions of refugee status set out in 

but would deny them refugee status. 

Article 1A(2) of the Convention. 

49 The Refugee 

Women?s Legal Group in the United Kingdom worked 

Courts have followed and further developed Islam and 

hard to get a case heard, resulting in the case of Islam 

44. Honkala, ?Islam v Secretary of State,? 6. 

45. Nora Webber, ??As a woman I have no country?: the denial of asylum to women fleeing gender-related persecution,? Women for Refugee Women, (n.d.), 

https://www.refugeewomen.co.uk/wp-content/uploads/2019/01/women-for-refugee-women-the-denial-of-asylum-to-women-fleeing-gender-related-persecution.pdf, 5. 

46. Ibid., 12. 

47. MIMA v Khawar 210 CLR 1, para. 44. 


49. Ibid. 


52


and Shah. 50 

The political response to Khawar in Australia was even 

more inhospitable towards refugees. Philip Ruddock, the 

state protection? would be much more likely to fail after 

the implementation of Bill No. 6. 55 

The legislative response to Khawar indicated hostility 

Minister for Immigration and Multicultural Affairs, raised towards refugees in general. In the Explanatory 

Khawar?s appeal to the Federal Court during discussion in 

Parliament. Ruddock cited Khawar as a reason for 

narrowing the definition of a refugee, claiming that 

Australian courts and tribunals had been interpreting the 

Convention definition too broadly. 51 As a result, Migration 

Amendment Bill (No 6) 2001 was introduced to amend the 

Migration Act 1958 and, in doing so, ?restore the 

application of the Convention . . . in Australia to its proper 

interpretation.? 52 Bill No. 6 was passed on September 26, 

2001. 

Bill No. 6 was clearly intended to prevent asylum seekers 

like Khawar from attaining protection visas in the future. 

In a direct response to Khawar, the bill narrowed the 

definition of ?persecution? in the Migration Act. The new 

section states that refugee status can only be granted if the 

Convention reason is the ?essential and significant reason 

for the persecution,? if the persecution involves ?serious 

harm,? and if the persecution involves ?systematic and 

discriminatory conduct.? 53 In the High Court?s judgment 

Memorandum corresponding to Bill No. 6, Ruddock wrote 

that a second purpose of the bill was to prevent asylum 

seekers from abusing Australia?s immigration processes. 56 

Subsequent media attention involved much vilification of 

refugees, calling to mind the language of ?floodgates? so 

often employed by Western media outlets. 57 58 The 

behavior of the Home Office in the United Kingdom and 

members of the House of Representatives in Australia 

shows how states? international asylum obligations are 

often hindered by a political preoccupation with 

immigration control. 

Islam and Shah and Khawar inspired opposing legal and 

political impacts. In the legal arena, these cases interpreted 

the Convention?s refugee definition broadly and thus 

facilitated future gender-related asylum claims. In the 

political arena, these cases collided with states?instinct to 

pursue strict border strategies and, in the case of Australia, 

resulted in legislation that narrowed the refugee definition 

once again. 

on Khawar, a concurring opinion noted that the case was 

Removing Barriers to Future Gender-based Refugee 

decided with reference to the Migration Act 1958 as it 

Claims 

stood before it was amended by Bill No. 6. 54 Scholars have 

observed that a claim of persecution like Khawar?s? one 

based on a combination of domestic violence and lack of 

As a legal solution, there is evidence of unexplored 

potential with regard to the other four grounds for 

50. Ibid. 

51. Catherine Hunter, ?Khawar and Migration Legislation Amendment Bill (No 6) 2001: Why narrowing the definition of a refugee discriminates against 

gender-related claims,? Australian Journal of Human Rights 8, no. 1, (2002): 107, https://doi.org/10.1080/1323238X.2002.11911076. 

52. Ibid. 

53. Ibid., 111. 


55. Hunter, ?Khawar and Migration Legislation Amendment,? 119. 

56. Ibid., 110. 

57. Ibid., 120. 

58. Arwa Damon and Murat Baykara, ?Greece stands firm on migrants, as Turkey opens floodgates to Europe,? CNN, March 1, 2020, 

https://www.cnn.com/2020/03/01/europe/turkey-greece-migrants-open-border-intl/index.html. 


53


persecution enumerated in the Convention. The particular a victim of gender-based violence can claim refugee status 

social group ground may have seemed the most suited to is necessary to ensure that countries are meeting their 

gender-based claims due to its relative breadth. However, asylum obligations as signatories to the Convention. 

scholars such as Siobhán Mullally have argued that the 

Conclusion 

other four Convention grounds? race, religion, nationality, 

and political opinion? may have been overlooked. 59 In 

This paper has argued that two landmark domestic 

Islam and Shah, the House of Lords dismissed Islam?s 

violence asylum cases, Islam and Shah and Khawar, have 

claim that she was persecuted in part for reasons of 

both expanded and contracted the scope of gender-related 

political opinion as ?unsustainable,? despite finding 

refugee claims. It has shown how these cases created new 

evidence of institutionalized gender-based discrimination 

legal pathways for gender-based asylum claims by 

in Pakistan. 60 A 2000 decision before the Refugee Status 

adopting broad interpretations of the terms ?particular 

Appeals Authority in New Zealand reached the opposite 

social group? and ?persecution? in Article 1A(2) of the 

conclusion. 61 In that case, the Appeals Authority found that 

1951 Refugee Convention. It has also shown, however, 

the Iranian asylum applicant did not suffer violence at the 

how these cases provoked new legislation in receiving 

hands of her husband for reasons of political opinion. It did 

countries that attempted to narrow those same legal 

find that the failure of the state to protect her was due in 

pathways to asylum. 

part to political opinion. It granted her refugee status on What can international refugee law do for women? As 

that basis. The New Zealand case and others show that Chief Justice Gleeson noted in Khawar, it is a widely 

claiming persecution on other Convention grounds, accepted fact that ?international refugee law was meant to 

perhaps in combination with membership of a particular serve as a substitute for national protection where such 

social group, can be advantageous to asylum applicants. protection was not provided? for discriminatory reasons. 64 

The more sustainable change, however, would involve Women fleeing domestic violence from which there is no 

standardizing policy processes that deal with gender-based state protection fall directly into this category. And yet, 

asylum each country. It would be politically unrealistic to lack of consistency across judicial and legislative 

assume that the 1951 Refugee Convention could be processes in countries that receive high numbers of 

amended to include explicit protections for refugees on the refugees has created many difficulties for victims of 

basis of gender. 62 However, countries such as Canada and gender-based violence in attaining refugee status. In the 

Sweden have set clear paths to asylum for victims of future, legislation that standardizes processes in dealing 

gender-based violence by way of codified rules. Other with gender-based refugee claims is necessary to ensure 

countries ought to follow suit. The dangers of not doing so that states are meeting their obligations under international 

are evident in the United States, where an egregiously high refugee law. 

standard of suffering is required to prove persecution. 63 

Legislation that explicitly sets out the criteria under which 

59. Siobhán, Mullally, ?Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law: A Progress Narrative?,? The International 

and Comparative Law Quarterly 60(2): 483, https://www.jstor.org/stable/23017008. 


61. Refugee Appeal No. 71427/99 [2000] NZAR 545 (RSAA). 


63. Mullally, ?Domestic Violence Asylum Claims,? 480. 



54

THE TEXAS FETAL HEARTBEAT 

STATUTE AND WHOLE WOMAN'S 

HEALTH V. JACKSON: 

UNRAVELING THE PROCEDURAL 

DILEMMA AND RETHINKING A WAY 

FORWARD 

Emma Blake '22 

ABSTRACT 

The signing of Texas? Senate Bill 8 (S.B.8) into law in July 2021 sparked outrage? not only because the 

Statute?s ban on abortions after the detection of a fetal heartbeat severely impedes a woman?s bodily autonomy, 

but also because its outsourcing of enforcement to private citizens circumvents constitutional protections. In 

Whole Woman?s Health v. Jackson, plaintiffs sought to enjoin enforcement of S.B.8, otherwise known as the 

Fetal Heartbeat Statute, by suing Texas judges and other state officials. However, such a strategy invoked a host 

of procedural issues relating to who has standing to challenge the law and whether a lawsuit against Federal 

courts can be considered permissible under Supreme Court precedent. Recognizing the urgent need to strike 

down S.B.8, this review unravels these procedural dilemmas. Specifically, this paper explains the issues 

presented by S.B.8 and by Whole Woman?s Health and analyzes the Supreme Court?s recent ruling in order to 

rethink a path forward in which abortion rights are protected and upheld. 


55

The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward 

Introduction 

When signed into law in July 2021, Texas?s Senate Bill 8 

(S.B.8) outlawed performing an abortion, as well as aiding 

or abetting in the performance of an abortion, upon the 

detection of a fetal heartbeat. 1 Such a detection usually 

occurs six weeks into pregnancy? before many women 

even know they are pregnant. This legislation thus actively 

counters Supreme Court precedent, which protects a 

woman?s right to an abortion well beyond six weeks. 2 

S.B.8 is not only unprecedented for placing such a severe 

restriction on a woman?s right to choose. In fact, S.B.8 

radically expands the concept of standing. The law entrusts 

private citizens with the exclusive right to enforcement, 

lending anyone ?other than an officer or employee of a 

state or local government entity? the right to bring civil 

action against any person who violates it. 3 In the absence 

of this provision, S.B.8 would be patently unconstitutional. 

The fact that the statute can only be enforced by private 

citizens removes the state action necessary to implicate 

constitutional rights. 

Unsurprisingly, S.B.8 has been met with outrage by 

abortion providers and patient advocates, with two 

lawsuits attempting to challenge it. United States v. Texas 

involves a suit in which the U.S. Department of Justice 

asked the Supreme Court to reinstate a district court 

judgment that temporarily enjoined the enforcement of 

S.B.8 pending final determination of the statute?s 

constitutionality. 4 The central question of this case asks 

whether S.B.8 is constitutional. Specifically, it examines 

the statute?s constitutionality under the Supremacy Clause 

and principles of federalism. 5 The second key lawsuit that 

challenges S.B.8 is Whole Woman?s Health v. Jackson; this 

paper will focus on this case. In Whole Woman?s Health, a 

group of abortion providers and patient advocates filed an 

emergency appeal seeking to block enforcement of S.B.8, 

arguing that the statute delegates enforcement of the law to 

circumvent constitutional protections. 6 The key question of 

this case thus revolves around whether a state can insulate 

from federal court review a law that prohibits the exercise 

of a constitutional right by outsourcing enforcement to the 

public. 

Notably, Whole Woman?s Health filed this suit against 

state judges, state clerks, state agency heads, and one 

private citizen. 7 The naming of these defendants has 

presented plaintiffs with a series of procedural dilemmas. 

Central is the issue of whether it is permissible to sue state 

judges in federal court. This issue may trigger the downfall 

of the petitioners? case and thus permit the continued 

violation of women?s rights to privacy and bodily 

autonomy. 

S.B.8 not only endangers abortion rights but poses a 

tremendous threat to civil rights more generally. In fact, 

the same approach upon which S.B.8 relies to circumvent 

constitutional protections could be used to interfere with 

any constitutional right. It seems unfathomable that a law 

that so intentionally circumvents protections be considered 

a permissible approach to civil rights. However, as Whole 

Woman?s Health has made clear, there exist several 

procedural problems relating to how this law can be most 

appropriately and effectively challenged in court. As such, 

1. S.B.8. § 171.203(a). 

2. Roe v. Wade, 410 U.S. 113 (1973). 

3. S.B.8. § 171.203(a). 

4. United States v. Texas, 595 U.S.___ (2021). 

5. Ibid. 

6. Whole Woman?s Health v. Jackson, 595 U.S.___ (2021). 

7. Ibid. 


56


though there may be a consensus that S.B.8?s outsourced 

enforcement provision poses an unacceptable threat to civil 

and constitutional rights, unwinding this procedural knot is 

critical to protecting abortion rights moving forward. 

This paper explains these procedural problems and 

investigates how they might best be tackled. First, I dive 

more deeply into the underlying context and specifics of 

the Texas Fetal Heartbeat Statute. Second, I outline the 

legal issues posed by S.B.8. Third, I introduce Whole 

Woman?s Health v. Jackson and deconstruct the legal issues 

plaguing the case. Fourth, I outline the rationale behind 

and implications of the Supreme Court?s ruling in Whole 

Woman?s Health. 

S.B.8: Context and Impact 

Texas has long been home to restrictive abortion laws, 

even after the Supreme Court decision in Roe v. Wade 

(1973), which upheld a woman?s right to abortion. 8 In 

2003, Texas implemented the ?Women?s Right to Know 

Act.? 9 This act forced doctors to impart misleading 

information about the procedure to women seeking 

abortions and required that abortions be performed at a 

surgical center? a standard met only by hospital-based 

abortion providers in the state. 10 Similarly restrictive 

measures were established in 2005, 2011, 2013, and almost 

every year from 2015 to 2021. Some of the most notable 

include the state?s 2017 ban on the safest procedure for 

second-trimester abortions, and its 2019 Senate Bill 22, 

which inhibits government entities from partnering with 

abortion clinics, thereby cutting off ?vital support to 

communities who rely on these low-cost clinics for basic 

health care.? 11 

S.B.8 builds on this restrictive regulatory history. Its 

provisions that inhibit an abortion upon detection of a fetal 

heartbeat effectively impede a woman?s ability to have an 

abortion altogether. 12 S.B.8 also makes no exception in 

cases of rape or incest, an exception that is widely 

supported and upheld across the United States. 13 Where 

this law departs from this past even more dramatically, 

however, lies in its delegation of enforcement to private 

citizens. The fact that S.B.8 allows anyone ?other than an 

officer or employee of a state or local government entity? 

the right to bring a civil action is unprecedented not only in 

abortion legislation, but in civil rights legislation 

generally. 14 Such a provision prevents women from 

asserting their constitutional rights and challenging the 

law. Furthermore, S.B.8?s reward of no less than $10,000 

to whoever brings such a suit is a concerning incentive. 15 

Not only could it encourage anyone from an abusive 

partner to a pro-life advocate to sue someone they have 

little connection to or concern for, but it could unleash an 

unmanageable wave of lawsuits. Clearly, Texas designed 

S.B.8 to spur a series of enforcement lawsuits that are ?so 

multiplicitous and burdensome that the threat of 

enforcement deters the provision of covered abortions 

altogether.? 16 

8. Roe v. Wade, 410 U.S. 113 (1973). 

9. ?A Recent History of Restrictive Abortion Laws in Texas,? ACLU Texas, November 24, 2021, https://www.aclutx.org/en/recent-history-restrictive-abortion-laws-texas. 

10. Ibid. 

11. Ibid. 

12. Ibid. 

13. S.B.8. § 171.203(a); ?An Overview of Abortion Laws,? Guttmacher Institute, November 1, 2021, 

https://www.guttmacher.org/state-policy/explore/overview-abortion-laws. 

14. S.B. 8 §171.208(b)(1)-(3); Ryan Lucas, ?A U.S. Judge Blocks Enforcement of Texas?Controversial New Abortion Law,? NPR, October 6, 2021, 

https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law. 

15. S.B.8 §171.208(b)(2). 

16. United States v. Texas, 595 U.S.___ (slip op. at 3) (2021). 


57


Thus far, the statute has been successful in preventing 

access to abortion and in frustrating constitutional 

defenses. After coming into effect on September 1, 2021, 

?the district court found that [S.B.8] virtually eliminated 

access to abortion in Texas after six weeks of 

pregnancy.? 17 Providers in neighboring states, including 

Oklahoma, Kansas, Colorado, New Mexico, and even 

Nevada, have experienced an influx of patients from Texas 

who are unable to access the service in their home state. 

In addition to the burdens S.B.8 has already placed on 

women and on abortion providers in other states, it has 

begun to show its potential of overwhelming Texas?s 

judicial system. In fact, upon admitting that he performed 

an abortion prohibited by S.B.8, San Antonio obstetrician 

and gynecologist Dr. Alan Braid faced at least two lawsuits 

just two days after his Washington Post op-ed was 

published. 18 This instance demonstrates the potential for 

similar suits to overwhelm Texas courts. The statute has 

only been in place for three and a half months and has 

already unleashed serious consequences, foreshadowing its 

even more disastrous potential. 

S.B.8: Legal Issues 

S.B.8 poses two key legal issues: it violates abortion 

precedent and radically expands the concept of standing. 

Examining both issues highlights the statute?s problematic 

and unprecedented nature. 

Violations of Abortion Precedent 

Over the past 50 years, the U.S. Supreme Court has 

consistently upheld a woman?s right to abortion. In Roe v. 

Wade, a pregnant woman brought a class action against 

Henry Wade, the District Attorney of Dallas County, to 

challenge the constitutionality of Texas?s abortion 

regulations. 19 Roe alleged that the laws? which permitted 

abortions only in cases where the mother?s life was in 

danger? were unconstitutional and violated her right to 

privacy as protected by the First, Fourth, Fifth, Ninth, and 

Fourteenth Amendments. 20 The Supreme Court held that 

Texas?s laws indeed violated a woman?s right to privacy. 21 

It ultimately decided that abortion was a personal liberty 

guaranteed by the Due Process Clause in the Fourteenth 

Amendment. 22 Specifically, it ruled that the state may not 

intervene in a woman?s decision to have an abortion in the 

first trimester of pregnancy, that certain restrictions to 

protect maternal health may be imposed in the second 

trimester, and that abortions may only be prohibited once 

the fetus reached a point of viability in the third 

trimester. 23 This landmark case laid a critical foundation 

protecting a woman?s constitutional right to abortion. 

Since Roe, the Court has explained and enlarged the sphere 

of constitutionally-protected rights related to abortion. For 

example, Planned Parenthood of Southeastern 

Pennsylvania v. Casey (1992) affirmed and refined Roe?s 

holdings. 24 In this case, plaintiffs challenged 

Pennsylvania?s Abortion Control Act, which required 

women to give ?informed consent? before an abortion 

could be performed and implemented a 24-hour waiting 

period before a woman could receive an abortion. 25 It also 

17. Ibid., 595 U.S. at ___ (slip op. at 5). 

18. Alan Braid, ?Why I Violated Texas?Extreme Abortion Ban,? Washington Post, September 18, 2021, https://www.washingtonpost.com/opinions/2021/09/18/ 

texas-abortion-provider-alan-braid/; Reese Oxner, ?Texas Doctor Who Admitted to Violating the State?s Near-Total Abortion Ban Sued Under New Law, The Texas 

Tribune, September 20, 2021, https://www.texastribune.org/2021/09/20/texas-abortion-ban-doctor-al3an-braid/. 

19. Roe v. Wade, 410 U.S. 113 (1973). 

20. Ibid, 410 U.S. at 120. 

21. Ibid., 410 U.S. at 154. 

22. Ibid., 410 U.S. at 113. 

23. Ibid. at 162. 

24. Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992). 

25. Ibid. 


58


required that minors seeking abortions attained parental 

consent and that wives received their spouse?s consent. 26 

Though the Supreme Court held that many of these 

restrictions were constitutional, it struck down the 

provision requiring a wife to inform her husband of her 

decision to have an abortion. 27 Critical in this holding was 

the creation of a standard asking whether a state regulation 

imposes an ?undue burden,? or a ?substantial obstacle in 

the path of a woman seeking an abortion.? 28 

The Supreme Court has consistently affirmed Roe and 

Casey, and by extension, the right to an abortion as a 

fundamental right. For example, in Whole Woman?s Health 

v. Hellerstedt (2016), the Court held that ?unnecessary 

health regulations that have the purpose or effect of 

presenting a substantial obstacle to a woman seeking an 

abortion impose an undue burden on the right and are 

therefore constitutionally invalid.? 29 Similarly, in June 

Medical Services L.L.C. v. Russo (2020), the court ruled 

unconstitutional a law that required doctors performing 

abortions to have admitting privileges at a hospital within 

30 miles. 30 Such a requirement, the court decided, 

constituted an undue burden as defined by Casey. 

Altogether, these holdings have shaped the current state of 

abortion law. 

S.B.8 departs radically from past Supreme Court decisions. 

First, S.B.8 subverts Roe. Its prohibition of abortions after 

six weeks of pregnancy violates Roe?s holding that a state 

may not intervene during the first trimester of pregnancy. 

The statute also cunningly circumvents Roe, ensuring that 

a state need not intervene in cases of abortion, delegating 

the authority to do so to private citizens, and stripping 

individuals of their ability to sue the state to assert their 

constitutional rights. Second, S.B.8 undermines Casey. By 

placing restrictions on abortions before women are even 

aware of their pregnancy, S.B.8 certainly imposes upon 

women a ?substantial obstacle.? Even more concerningly, 

S.B.8 seeks to redefine the term ?undue burden.? It states: 

?a court may not find an undue burden . . . unless the 

defendant introduces evidence proving that an award of 

relief will prevent a woman . . . from obtaining an 

abortion.? 31 These guidelines seek to ?dictate how [the] 

courts interpret Supreme Court precedent.? 32 

Clearly, S.B.8 stands in stark contrast to the legal 

precedents set by Roe and Casey. Coupled with the law?s 

insidious attempts to evade legal challenges, its intentional 

departure from precedent renders it worthy of extreme 

concern. 

Expansion of Standing 

S.B.8?s relevance, however, goes beyond the abortion 

issue; in fact, the provision that outsources enforcement 

and expands standing has potentially dangerous 

implications for all constitutional rights. Standing is the 

capacity of a party to bring a lawsuit in court. 33 In the 

context of S.B.8, there are two relevant types of standing: 

standing to enforce, which guides who can enforce a law, 

and standing to challenge, which dictates who can sue to 

challenge a law. Recognizing S.B.8?s unique 

conceptualization of standing to challenge, this section will 

explain what constitutes standing to challenge under 

respective definitions in federal law and in Texas?s state 

law. 

26. Ibid. 

27. Ibid., 505 U.S. at 895. 

28. Ibid. 

29. Whole Woman?s Health v. Hellerstedt, 136 S. Ct. 992 (2016), cited in June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2103 (2020). 

30. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. at 2103. 

31. S.B. 8 § 171.209. 

32. Maggie Astor, ?Here?s What the Texas Abortion Law Says,? New York Times, September 9, 2021, https://www.nytimes.com/article/abortion-law-texas.html. 

33. U.S. Const. art. III. 


59


Federal Standing Laws 

In federal law, standing is derived from Article III of the 

Constitution and gives the federal courts jurisdiction over 

?Cases and Controversies.? 34 The Supreme Court has long 

held that to satisfy the Case or Controversy requirement, 

the federal court must determine whether the plaintiff has 

?standing,? or a particularized grievance arising from the 

challenged Statute or conduct which can be redressed in 

the courts. 35 The Supreme Court?s ruling in Hollingsworth 

v. Perry (2013) provides detailed guidance on the 

particularized injury requirement. In Hollingsworth, no 

Californian state officials were willing to defend 

Proposition 8? which intended to ban same-sex 

marriage? in a lawsuit brought by same-sex couples. 36 

Proponents of Proposition 8 subsequently stepped in as 

defendants. The question then became whether these 

proponents had the authority to represent the state. The 

Supreme Court ultimately held that petitioners did not 

have standing. In his opinion, Chief Justice Roberts stated 

that standing requires that a party ?seek remedy for a 

personal and tangible harm.? 37 He acknowledged that the 

Supreme Court has ?allowed litigants to assert the interests 

of others,? but highlighted that the ?litigants themselves 

?must have suffered an injury . . . thus giving [them] a 

sufficiently concrete interest in the outcome of the 

dispute.?? 38 Because petitioners did not suffer an injury and 

did not have a particularized interest, the Court decided 

that they did not have standing. 

In the context of S.B.8, the court?s ruling in Hollingsworth 

begs the question: does a member of the general 

population, upon learning that someone has performed or 

assisted in the performance of an abortion, have a 

particularized injury? Or are they simply a bystander? 

S.B.8 does not require that plaintiffs experience a personal 

injury or particularized interest to bring a lawsuit against 

anyone who performs or assists in the performance of an 

abortion. Clearly, the statute violates the Supreme Court?s 

conceptualization of standing to challenge as decided in 

Hollingsworth. 

The question then becomes: Can a piece of legislation like 

S.B.8 create a cause of action to endow standing upon an 

individual? The Supreme Court tackled this question in 

TransUnion v. Ramirez (2021). 39 In TransUnion, the 

Supreme Court held that even in cases where federal 

statutes grant individuals the right to sue for statutory 

damages, a plaintiff must prove that they suffered actual 

injury from a statutory violation. Importantly, then, 

TransUnion found that standing cannot be created by 

legislative fiat. 40 In other words, even where a statute 

provides a cause of action, the federal courts have a 

constitutional obligation to ask whether a plaintiff has 

standing. This ruling set a precedent applicable to cases 

challenging S.B.8. Courts hearing such cases will thus 

have to confront the issue of the mechanism by which 

S.B.8 endows upon citizens standing they would not 

otherwise have. 

Understanding S.B.8?s disregard for the Supreme Court?s 

rulings on requirements for standing to challenge sparks 

serious concerns about its threat to abortion rights and to 

civil rights more generally. As stated in the Supreme 


35. U.S. Const. art. III.; Hollingsworth v. Perry, 570 U.S. 693 (2013). 

36. Hollingsworth v. Perry, 570 U.S. at 693. 

37. Ibid., 570 U.S. at 704 (2013). 

38. Ibid. 

39. TransUnion LLC. V. Ramirez, 141 S. Ct. 2190 (2021). 

40. Ari Gabinet, ?Fetal Heartbeats, Civil Enforcement, and Standing Under the Texas Constitution,? Brown Undergraduate Law Review, July 2021, 

https://www.brownulr.org/blogposts/fetal-heartbeats-civil-enforcement-and-standing-under-the-texas-constitution. 


60


Court?s decision in TransUnion, affirming an 

understanding of standing that does not require a 

particularized injury would ?flout constitutional text, 

history, and precedent.? 41 T hese risks should be enough to 

effectively challenge and strike down S.B.8. 

Texas Standing Laws 

However, S.B.8 suits are brought in Texas state courts, and 

thus the Case or Controversy requirement under Article III 

does not apply. In fact, Texas state law has its own 

standing requirements. These requirements are most 

clearly reflected in the Supreme Court of Texas?s decision 

in Scott v. Board of Adjustment (1966). This court 

recognized that ?in most cases of this general nature, it has 

usually been required that the plaintiff be a ?person 

aggrieved?? and that ?the plaintiff must allege and show 

how he has been injured or damaged other than as a 

member of the general public in order to enjoin the actions 

of a governmental body.? 42 Yet, the court?s final analysis 

in this decision centered around the fact that ?in other 

instances, however, the courts have recognized the rights 

of individuals to challenge governmental action without 

showing any particular damage.? 43 It cited Spence v. 

Fenchler (1915), a case in which ?any citizen [was 

authorized] to bring action to enjoin the operation of a 

bawdyhouse? to support its conclusions. 44 S.B.8 thus 

technically abides by Texas standing laws and precedent, 

as the ?Texas courts have left open the possibility that the 

legislature may endow private parties with the right to 

institute lawsuits to vindicate a public interest.? 45 

S.B.8 may follow Texas standing laws, but it nonetheless 

creates a series of legal issues. The most relevant of these 

issues pertain to the statute?s clear violation of precedent in 

abortion law and its radical expansion of the concept of 

standing as it has been construed under federal law. 

Tackling these issues will necessitate creative legal 

thinking to ensure that abortion rights? and civil rights 

more generally? are protected. 

Whole Woman?s Health v. Jackson 

History and Procedural Posture 

Before exploring the ways in which Whole Woman?s 

Health v. Jackson confronts the legal issues posed by 

S.B.8, it is important to understand the procedural posture 

of the case. Petitioners comprise a coalition of abortion 

providers, individuals, and organizations who support 

abortion patients and who have sought to challenge S.B.8 

for many of the previously explained legal issues it 

presents. They alleged a claim under 42 U.S.C. § 1983, 

which authorizes suits for violations of federal civil rights 

by persons operating ?under color of state law,? or in their 

official capacities. 46 Even before S.B.8 went into effect, 

this coalition attempted to stay its enforcement. 47 In fact, 

Whole Woman?s Health filed a lawsuit against the clerks 

and judges of the Texas state courts, the attorney general, 

other state executive officials, and a private individual who 

expressed an intention of enforcing the abortion ban 

(collectively referred to as ?respondents?). Specifically, 

they requested that the Supreme Court temporarily block 

enforcement of the law? a request that was rejected in a 

41. TransUnion LLC. V. Ramirez, 141 S. Ct. at 2190. 

42. Scott v. Board of Adjustment, 405 S.W.2d 55, 56 (Tx 1966). 

43. Ibid. at 56. 

44. Scott v. Board of Adjustment, 405 S.W.2d at 56, citing Spence v. Fenchler, 180 S.W. 597 (1915). 

45. Gabinet, ?Fetal Heartbeats, Civil Enforcement, and Standing Under the Texas Constitution.? 

46. 42 U.S.C. § 1983. 

47. ?Whole Woman?s Health et al. v. Jackson et al.,? Center for Reproductive Rights, November 24, 2021, https://reproductiverights.org/case/texasabortion-ban-whole-womans-health-jackson/. 


61


narrow 5?4 decision. 48 

Legal Issues 

Whole Woman?s Health v. Jackson not only confronts the 

legal issues posed by S.B.8, but involves a series of 

procedural legal issues revolving around whether Whole 

Woman?s Health can bring suit against Texas?s courts and 

judges. These issues give rise to two key questions: First, 

does Whole Woman?s Health have standing to sue? 

Second, may the plaintiffs invoke the federal courts to 

enjoin state judges in Texas from deciding cases under 

S.B.8? 

1. Whole Woman?s Health Has Standing to 

Challenge 

Whether a party has standing to sue is one of the first 

important legal issues worthy of consideration in Whole 

Woman?s Health. As explained in the above section on 

standing, plaintiffs must meet a particular set of criteria to 

have standing to sue. In federal court, a plaintiff must have 

suffered Article III injury in the form of ?concrete harm.? 49 

Article III injury also requires that there be ?an intention to 

engage in a course of conduct arguably affected with a 

constitutional interest, but proscribed by a statute, and 

there exists a credible [enforcement] threat.? 50 In Whole 

Woman?s Health, petitioners argued that they have standing 

to bring this suit against respondents because their 

activities as abortion providers are restricted by S.B.8. 51 

Thus, they suffer a concrete harm for conduct affected by a 

constitutional interest. 52 Just as plaintiffs must have 

standing to invoke the federal court to challenge S.B.8, 

defendants must also have standing? that is, they must 

have a stake in the lawsuit. Petitioners argue that 

respondents have standing as defendants because Texas 

state courts and judges have a direct impact on petitioners? 

injuries. 53 Namely, state clerks docket cases pertaining to 

S.B.8, and state judges make decisions that ultimately 

enforce S.B.8. Respondents, however, contend that this 

lawsuit is not proper. First, they point to the fact that 

private citizens are the only people with true enforcement 

power of the statute. Second, they argue that naming state 

clerks and judges as defendants is improper. Specifically, 

they contend that 42 U.S.C. § 1983 and precedent preclude 

courts and judges from being sued for injunctive relief in 

federal court. This argument provides a glimpse into 

complications plaguing the next two key procedural 

questions of this case. 

2. Federal Courts May Interfere with State Court 

Proceedings in Exceptional Cases 

There exist limitations on the federal court?s ability and 

willingness to interfere with state court proceedings. 

However, Supreme Court decisions over the course of the 

twentieth century have established clear guidelines for 

federal court involvement in state court action. 

Ex Parte Young 

The Supreme Court?s decision in Ex Parte Young (1908) 

allowed citizens to sue state officers in federal court to 

enjoin enforcement of allegedly unconstitutional state 

laws; Young thus set an important precedent pertaining to 

cases like Whole Woman?s Health. In Young, the Supreme 

Court tackled the issue of whether it was possible to sue in 

federal court to block a state from enforcing an allegedly 

48. ?Whole Woman?s Health et al. v. Jackson et al.,? 2021. 


50. Babbitt v. United Farm Workers Nat?l Union, 442 U.S. 289, 298 (1979). 

51. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 30) (2021). 

52. Ibid. 

53. Ibid. 

54. Ex Parte Young, 209 U.S. 123 (1908). 


62


of a pre-enforcement challenge to an allegedly 

unconstitutional law. 55 

More specifically, Young dealt with a lawsuit challenging a 

strict Minnesota law that severely limited the amount that a 

railroad could charge. 56 Non-Minnesotan shareholders sued 

the Attorney General of Minnesota in federal court to 

enjoin him from enforcing the law, alleging that it violated 

the Fourteenth Amendment (which prohibits states from 

depriving people of property without due process). 57 The 

Eleventh Amendment, however, prohibits the citizens of 

one state from suing a state of which they are not a citizen, 

a concept known as ?sovereign immunity.? It also states 

that the ?judicial power of the U.S. shall not be construed 

to extend to any suit in law or equity, commenced or 

prosecuted against one of the United States by Citizens of 

another State, or by Citizens or Subjects of any Foreign 

State.? 58 

Young thus argued that the lawsuit should have been 

dismissed because the Eleventh Amendment did not give 

the federal court jurisdiction, as he was, for this purpose, 

the embodiment of the state. 59 The Supreme Court 

simultaneously held that Young could be sued in federal 

court without violating the Eleventh Amendment and that 

Young?s actions were nonetheless ?state action? under the 

Fourteenth Amendment. It stated: 

The attempt of a state officer to enforce an 

unconstitutional Statute is a proceeding without 

authority of, and does not affect, the State in its 

sovereign or governmental capacity, and is an illegal 

act and the officer is stripped of his official character 

and is subjected in his person to the consequences of 

his individual conduct. The State has no power to 

impart to its officer immunity from responsibility to 

the supreme authority of the United States. 60 

Altogether, this holding allowed citizens to sue state 

officers in federal court to enjoin enforcement of state laws 

that are allegedly unconstitutional. However, in his opinion 

in Young, Justice Pekham noted that it would be entirely 

different for a federal court to enjoin a state court. 61 He 

argued that doing so would upset the entire federalist 

balance on which the United States is based. 62 

In the context of an unconstitutional abortion law and the 

lawsuit brought by Whole Woman?s Health to challenge it, 

Ex Parte Young is extremely relevant. Plaintiffs argue that 

Young gives them the ability to sue all state courts and 

judges in Texas to enjoin them from hearing or entering 

judgments on S.B.8. Defendants argue that it does not, 

citing the importance of the federalist balance that Justice 

Pekham emphasized. Understanding Young in the context 

of Whole Woman?s Health thus compels consideration of 

whether a pre-enforcement challenge to prevent the 

deprivation of constitutionally-protected rights is allowed, 

or whether a woman must be actively deprived of her 

constitutional right in order to sue an abortion provider to 

protect her rights. The decision in Young would seem to 

suggest that petitioners may seek pre-enforcement 

challenges in federal court to protect their constitutional 

rights. 

Younger v. Harris 

After Young, the Supreme Court dealt with cases that 

similarly compelled questions surrounding when federal 

55. Ibid. 

56. Ibid. 

57. Ibid. 

58. U.S. Const. amend. XI. 

59. Ex Parte Young, 209 U.S. at 123. 

60. Ibid. 

61. Ibid. 

62. Ibid. 


63


court interference in state court proceedings is permissible. 

Notably, the Court?s decision in Younger v. Harris (1971) 

held that federalism prevents federal courts from 

intervening with state court decisions, but with certain 

exceptions. 63 In Younger, Harris, who had been indicted for 

violating the California Criminal Syndicalism Act, sued 

the county district attorney in the federal district court to 

enjoin Younger from prosecuting Harris. Harris?s claims 

were rooted in the notion that the act was unconstitutional 

and violative of his First Amendment rights. 64 In this case, 

then, the court dealt with 18 U.S.C. § 2283, or the 

Anti-Injunction Act, which bars federal court injunctions 

against state court proceedings unless authorized by act of 

Congress. 65 Ultimately, the Supreme Court decided that 

federal courts may not enjoin ongoing state court criminal 

proceedings, except in extreme circumstances where such 

an enjoinment is explicitly authorized by Congress and can 

prevent grave and immediate harm? thereby creating the 

Younger exception. 66 In the end, the court decided that 

prosecution under an allegedly constitutional law does not 

constitute such a harm. Nevertheless, Younger is relevant 

because it indicates that federal involvement in state court 

proceedings may be allowed in certain exceptional cases 

where such involvement can prevent harm and where 

Congress gives explicit approval. 

42 U.S.C. § 1983 

42 U.S.C. § 1983 provides the legislative approval that the 

Younger exception requires. § 1983 authorizes civil action 

for a deprivation of rights. Specifically, it states: 

Every person who, under color of any Statute . . . 

subjects . . . or causes to be subjected, any citizen of 

the United States . . . shall be liable to the party injured 

in an action at law, suit in equity, or other proper 

63. Younger v. Harris, 401 U.S. 37 (1971). 

64. Ibid. 

65. Ibid. 

66. Ibid. 

67. 42 U.S.C. § 1983. 

68. Mitchum v. Foster, 407 U.S. 225 (1972). 

69. Ibid., 407 U.S. at 224. 

70. Ibid., 407 U.S. at 225. 


proceeding for redress, except that in any action 

brought against a judicial officer for an act or omission 

taken in such officer?s judicial capacity, injunctive 

relief shall not be granted unless a declaratory decree 

was violated or declaratory relief was unavailable. 67 

In essence, § 1983 allows people to sue the state 

actors? specifically, state officials and state entities? for 

civil rights violations. It applies when someone acting in 

their official state capacities deprives a person of rights 

created by a federal or state law. Thus, § 1983 grants the 

congressional authorization that the Younger exception 

requires. The purpose of § 1983, then, is to ?interpose the 

federal courts between the states and the people, as 

guardians of the people?s federal rights: to protect the 

people from unconstitutional action under color of state 

law, whether that action be executive, legislative, or 

judicial.? 68 

Mitchum v. Foster 

Mitchum v. Foster (1972) dealt with § 2283, or the 

Anti-Injunction Act, in the context of § 1983. 69 It is thus a 

significant case through which to examine the Supreme 

Court?s interpretation and application of the Younger 

exception. In Mitchum, the attorney general of Bay 

County, Florida shut down a bookstore because it was an 

alleged public nuisance. Claiming that such an act 

violated his First and Fourteenth Amendment rights to 

cause him ?great and irreparable harm,? the bookstore 

owner relied on § 1983 to seek injunctive relief against the 

state courts. 70 The Supreme Court thus tackled the question 

of whether federal courts can issue prospective relief 

against state court actions. Because injunctive cases under 

§ 1983 are explicitly authorized by Congress, the Supreme 

Court held that § 1983 authorized federal issuance of 

64


prospective relief against state court actions. 71 This 

decision emphasized that "federal injunctive relief against 

a state court proceeding can in some circumstances be 

essential to prevent great, immediate, and irreparable loss 

of a person?s constitutional rights.? 72 Mitchum is thus 

relevant in the context of Whole Woman?s Health because 

it evidences a case in which explicit congressional 

approval as authorized by § 1983 allows federal courts to 

issue prospective relief in state court proceedings. 

Pulliam v. Allen 

Pulliam v. Allen (1984) is another case in which the 

Supreme Court dealt with the issue of whether prospective 

injunctive relief was permitted against state courts under § 

1983. 73 In Pulliam, respondents challenged a Virginia 

court?s practice of setting bail for people who could not 

pay fines for non-jailable offenses. 74 Among other things, 

the respondents? suit sought damages as well as an 

injunction against the future use of such a practice. The 

Court ultimately ruled that litigants were allowed to obtain 

prospective relief in suits against state-court judges, citing 

the fact that the United States did not have a doctrine of 

judicial immunity from prospective relief. 75 This case was 

thus critical in affirming a citizen?s right to sue a 

state-court judge. 

The decision in Pulliam is relevant to Whole Woman?s 

Health in two ways. First, it shows that § 1983 indeed 

permits prospective injunctive relief against state 

courts? which is exactly what Whole Woman?s Health 

seeks. Second, it demonstrates the Supreme Court?s 

understanding of the function of § 1983 as one that 

recognizes the role of the federal courts in protecting 

people from unconstitutional action under the color of state 

law. 

The language of § 1983, however, limits actions against 

judges to situations where a violation of declaratory 

judgment has occurred or where declaratory relief is 

unavailable. 76 S.B.8 expressly prohibits suit for declaratory 

relief. 77 As highlighted by the petitioner?s brief in Whole 

Woman?s Health, ?S.B. 8 precludes declaratory-judgment 

suits and immunizes the State and all state officials from 

challenges in the State's own courts.? 78 § 1983?s language, 

then, seems to permit the suit by Whole Woman?s Health. 

The procedural issues that tied up Whole Woman?s Health 

render the case much more complicated than initially 

meets the eye. Specifically, issues of standing and of 

federal court involvement in state court proceedings must 

be unraveled and tackled to ensure that a woman?s right to 

abortion is upheld. 

The Supreme Court?s Decision 

Ultimately, the previously discussed jurisdictional issues 

posed by Whole Woman?s Health compelled the court to 

disallow the petitioner?s requested pre-enforcement 

challenge against most of the named defendants in a 5?4 

decision released on December 10, 2021. In fact, the court 

concluded that Judge Jackson, Penny Clarkson (a 

71. 42 U.S.C. § 1983. 

72. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 25) (2021), citing Mitchum v. Foster, 407 U.S. at 225. 

73. Pulliam v. Allen, 466 U.S. 522 (1984). 

74. Ibid. 

75. Ibid. 

76. 42 U.S.C. § 1983. 

77. Tex. Health & Safety Code § 171.211(a)-(b). 

78. Whole Woman?s Health v. Jackson, 595 U.S. ___ (2021); Tex. Health & Safety Code § 171.211(a)-(b). 


65


state-court clerk), Texas Attorney General Paxton, and the 

sole private defendant be dismissed. To explain its decision 

surrounding dismissal of Judge Jackson and Penny 

Clarkson, the Court recognized that while Ex Parte Young 

allowed for ?a narrow exception . . . to prevent state 

officials from enforcing state laws that are contrary to 

federal law . . . this traditional exception does not 

normally permit federal courts to issue injunctions against 

state-court judges or clerks.? 79 Simply put, the Court 

decided that the Younger exception does not apply. 

Additionally, the court maintained that petitioners lacked 

standing to sue because they did not meet the Article III 

?Case or Controversy? requirement. 80 Regarding Texas?s 

attorney general, the Court highlighted that petitioners did 

not identify ?any enforcement authority the Attorney 

General possesses in connection with S.B.8 that a federal 

court might enjoin him from exercising.? 81 Finally, the 

Court stated that because petitioners did not contest the 

sole private defendant?s claim that he had ?no intention to 

file an S.B.8 suit against them, the petitioners cannot 

establish? personal injury traceable to his conduct. 82 

Meanwhile, eight of nine members of the Court decided 

that petitioners? pre-enforcement challenge against the 

executive licensing officials named as defendants could 

proceed. This decision was rooted in the fact that these 

officials ?may or must take enforcement actions against the 

petitioners if the petitioners violate the terms of [S.B.8].? 83 

Unfortunately for petitioners, however, this decision 

surrounding executive licensing officials did not bar 

enforcement of S.B.8. 

This decision thus rendered the bulk of petitioners? 

sufficient and their goals unachievable. S.B.8, then, 

continues to achieve exactly what it set out to? violating 

rights protected by precedent and constitutional provisions 

while circumventing any legal challenge that seeks to 

dismantle it. Justice Sotomayor highlighted this in a 

powerful dissenting opinion, in which she recognized the 

?chilling? effects of S.B.8, the ?failure? of the Court to 

?put an end to this madness,? and the Court?s betrayal ?not 

only [of] the citizens of Texas, but also [of] our 

constitutional system of government.? 84 Sotomayor?s 

comments highlight the detrimental consequences of the 

Court?s decision not only for women in Texas, but also for 

the very respect for legal precedent and constitutional 

rights in the United States. 

Conclusion 

Clearly, the unprecedented nature of S.B.8 renders it 

worthy of legal challenge. Unfortunately, as of yet, it 

seems as though Whole Woman?s Health v. Jackson cannot 

act as that challenge. While this is somewhat 

understandable given the various jurisdictional and 

procedural problems plaguing S.B.8 and Whole Woman?s 

Health, the inability of the judicial system to effectively 

uphold a woman?s constitutionally-protected right to an 

abortion is chilling. Even more terrifying is the broader 

context in which S.B.8 and Whole Woman?s Health have 

taken place? a context dominated by concerns as to 

whether Roe?s holdings will be struck down by other cases 

on the Supreme Court docket. 


80. Ibid. 

81. Ibid. 

82. Ibid. 


84. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 2) (Sotomayor, J., dissenting). 


66


Whole Woman?s Health may have been too procedurally 

unsound to strike down S.B.8, but the legal fight against 

unconstitutional and restrictive abortion laws must persist. 

Scholars, litigators, and advocacy organizations must 

continue to think creatively and flexibly in constructing 

lawsuits to ensure that women?s fundamental bodily rights 

are protected. Above all, the Supreme Court must ensure 

that ?unconstitutional laws [are] susceptible to federal 

court challenges. And if there is no historical precedent for 

allowing a challenge in federal court to this kind of 

unconstitutional law, the Supreme Court is obligated to 

establish one.? 85 

85. Kimberly Wehle, ?Will Supreme Court Allow Constitutional Oversight to be Outmaneuvered by Texas Abortion Law?,? The Hill, November 2, 2021, 

https://thehill.com/opinion/judiciary/579675-will-supreme-court-allow-Federal-oversight-to-be-outmaneuvered-by-texas. 


67

DACA, DAPA, AND A POLITICAL 

BATTLE IN COURT 

Carrie Deng '22 

ABSTRACT 

Historically a popular destination for immigration, the United States has had difficulties in regulating 

legal and illegal immigration since the twentieth century. The issuance and subsequent rescission of 

DACA and DAPA, as well as the debates over the legitimacy of such governmental action in court, 

exemplify the tension surrounding illegal immigration. This paper highlights the legal aspect of how 

the courts resolved this series of cases in which state governments of different political leanings 

opposed the federal government in order to achieve favorable outcomes for respective immigration 

policies. Specifically, this paper investigates how the courts tackled the issue of standing, which 

epitomizes how the courts strived to avoid becoming a pure political battleground. Examining the 

neutrality of judicial power in the face of political polarization, as well as the peculiar relationship 

between state and federal governments, is critical to understanding this ongoing battle. 


68


Introduction 

Illegal immigration has been a historically neglected and 

unresolved issue in American society, especially in the 

political and policy realms. Today, the United States has 

the largest population of immigrants in the world, both 

legal and illegal. Yet, approximately 23 percent of all 

immigrants who came to this land to live out the 

?American Dream? are unauthorized? they either entered 

the U.S. territory illegally or overstayed their legal 

permission. 1 

Illegal immigrants participate in and contribute to the 

socioeconomic landscape perplexingly: they can cause 

various social issues and are deeply impacted in the 

meantime. These issues include but are not limited to 

unclaimed tax revenue base and social benefits, inefficient 

labor market competition, and possible contributions to 

crime rates. 2 Because their healthcare is unsecured, illegal 

immigrants are more likely to receive insufficient 

treatment and care, leading to a substantial inequality in 

health outcomes. 3 Economically, illegal immigrants have 

higher necessity to work under unfavorable conditions, 

which offers employers higher leverage in employment 

relationships. As a result of the Affordable Care Act 

(ACA), employers with 50 or more employees must offer 

healthcare coverage for their workers, but they are exempt 

from doing so for illegal immigrants. 4 While some studies 

suggest that unauthorized immigration is 

disproportionately responsible for high crime rates and 

public safety issues, the true effect of illegal immigrants on 

public safety is strongly debated because of lack of 

representation in sampling. 5 The complexity of issues 

brought about by illegal immigration has spurred intense 

discussion within American society; therefore, 

unauthorized immigrants have always contributed to 

political and social controversies and are thus central in 

public policy discussions after the twentieth century. 

The problems that unauthorized immigrants face are 

especially acute for those who came to the United States 

illegally as children, a group that constitutes a significant 

portion of the unauthorized immigrant population. For 

example, despite spending significant time in their current 

residences, they do not qualify for in-state tuition for 

public education, which further burdens their already 

disadvantaged economic condition. 6 Without accessible 

education and work authorization, they face more 

difficulties living in American society. 

As a result of years of political polarization between 

Democrats and Republicans, Congress has failed to 

address the issues around unauthorized immigration, and 

especially issues that affect those who came to the United 

States as children. The Immigration and Nationality Act 

(INA) has not been updated since 1990, while 

unauthorized immigration continues. The Development, 

Relief, and Education for Alien Minors Act (DREAM Act) 

is a legislative proposal to grant temporary legal residency 

to those who came to the United States as minors, called 

?the DREAMers,? with the right to work and a viable path 

to legal status if they satisfy further requirements. The 

DREAM Act has failed in Congress 12 times since its 

initial proposal in 2001. The lack of action in the 

1. Mark Hugo Lopez, Jeffrey S. Passel, and D?Vera Cohn, ?Key Facts about the Changing U.S. Unauthorized Immigrant Population,? Pew Research Center (Pew 

Research Center, April 13, 2021), https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population/. 

2. Robert Warren and Donald Kerwin, ?Beyond Dapa and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the 

United States,? Journal on Migration and Human Security 3, no. 1 (2015): 85, https://doi.org/10.1177/233150241500300104. 

3. Abby Budiman, ?Key Findings about U.S. Immigrants,? Pew Research Center, September 22, 2020, 

https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/. 

4. § 5000A. Requirement to maintain minimum essential coverage [Caution: For the inflation adjustment of certain items in this section, see the Revenue Procedure 

which appears as 26 USCS § 1 note.]., 26 USCS § 5000A (Current through Public Law 117-80, approved December 27, 2021, with a gap of Public Law 117-58. Title 

26 provisions are current through Public Law 117-80.). 

5. Budiman, ?Key Findings.? 

6. Ibid. 


69


legislature is largely attributable to bipartisan polarization 

in Congress and both sides?unwillingness to compromise. 7 

The DREAMers are therefore left unaccounted for at the 

legislative level. 8 

In light of Congress?s inaction, the executive 

branch? presidents and executive agencies? have initiated 

immigration reform with a focus on the DREAMers. One 

of the most famous and controversial programs is the 

Deferred Action for Childhood Arrivals program (DACA). 

In 2012, DACA was brought into effect by then-president 

Obama signing an executive order, issuing a DHS 

Memorandum. DACA resembles the DREAM Act in many 

respects: DACA offers the DREAMers deferred action, or 

temporary legal presence, for a period of two years, subject 

to renewal. During this period, recipients are eligible for 

work authorization and various other social benefits. 

Despite similarities in benefits, the major difference 

between DACA and the DREAM Act is that DACA does 

not offer a path to citizenship. 9 In 2014, the DHS further 

announced an expansion to DACA, removing its age limit, 

and another sister program called the Deferred Action for 

Parents of Americans and Lawful Legal Residents (DAPA) 

that extended the aforementioned benefits to the parents of 

citizens and LPRs. Estimates suggest that the extension 

and DAPA would raise the total population of 

undocumented immigrants with lawful presence to 5.8 

million, more than half of the illegal immigrants in the 

country. 10 

Shortly after the announcement, Texas and other states 

with Republican governors and legislatures challenged the 

federal government in court on three grounds. 11 

Procedurally, DAPA as a substantive rule did not go 

through the notice-and-comment process? the period 

before a rule goes into effect that solicits public opinion. 

Substantively, DAPA conflicted with the terms of the 

Immigration and Nationality Act (INA). Constitutionally, 

they argued, DAPA violated the Take Care Clause of the 

Constitution, which grants the executive branch duties to 

ensure that laws are rightfully implemented, and threatened 

the separation of powers. 12 The case, Texas v. United States 

(2015), is referred to as Texas I. 13 The District Court of 

Southern Texas found that the states had standing and 

granted a preliminary injunction in favor of the states on 

the procedural APA claim, preventing DACA from going 

into effect pending the final outcome of the case. After the 

Fifth Circuit and the Supreme Court (per curiam with 

divided court) affirmed, Texas I was stayed because of the 

2016 election; president-elect Trump indicated his 

intention to rescind DACA via his own executive order and 

therefore urged the courts to hold off further litigation on 

the merits of the case. 14 

In 2017, then-president Trump rescinded DAPA and the 

expansion of DACA successfully. He also attempted to 

rescind the original DACA but was faced with significantly 

more opposition. Several cases challenged the legitimacy 

of the rescission of DACA, primarily with liberal or 

progressive plaintiffs that employed many 

DACA-recipients. 15 The Supreme Court consolidated them 

into one case: Department of Homeland Security v. 

Regents of Univ. of Ca. (2020) (Regents). The Supreme 

Court then decided in Regents that the rescission of DACA 

7. ?Actions - S.2649 - 117th Congress (2021-2022): Dream Act of 2021,? December 12, 2021, https://www.congress.gov/bill/117th-congress/senate-bill/264/actions. 

8. G. David Gearhart and William A. Schwab, Right to Dream: Immigration Reform and America's Future, University of Arkansas Press, 2013, 6. 

9. ?Consideration of Deferred Action for Childhood Arrivals (DACA),? USCIS, July 19, 2021, https://www.uscis.gov/DACA. 

10. Giulia Mcdonnell Nieto, ?What Is DACA? and Where Does It Stand Now?,? The New York Times, June 18, 2020, 

https://www.nytimes.com/article/what-is-daca.html. 

11. Texas v. United States, 809 F. 3d 134, 145 (5th Circ. 2015). 

12. Chandler Davidson, Race and Class in Texas Politics, Princeton University Press, 1990, 16. 

13. Texas v. United States, 86 F. Supp. 3d 591, 632 (U.S. Dist. 2015). 

14. Texas v. United States, 809 F. 3d at 147 (5th Circ. 2015). 

15. ?Epilogue: Liberal Politics in California in an ?ERA of Limits,?? California Crucible, 2012, 269-280, https://doi.org/10.9783/9780812206241.269, 275. 


70


violated the Administrative Procedure Act (APA) in that 

the decision was ?arbitrary and capricious? and issued a 

preliminary injunction in favor of the plaintiffs, by which 

the 2012 DACA program remained in effect. 16 The dispute 

over DACA, however, had continued. In July 2021, the 

District Court of Southern Texas ruled in Texas II (Texas v. 

United States) that DACA was ?probably illegal? on very 

similar logic in argument to those in the decision of 

Regents, addressing the procedural and substantive APA 

claims and the Take Care Clause of the Constitution 

claim. 17 This suggests that issues around the legality of 

DACA and its sister programs are far from resolved, as the 

legal tension between state and federal governments 

continue. 

The courts maintained a consistent rationale following the 

Administrative Procedure Act (APA) in deciding Texas I, 

Regents, and Texas II. Examination of the court opinions 

in Texas I, Regents, and Texas II offers insights into the 

framework the judicial branch applies to review agency 

action concerning unauthorized immigration. In deciding 

these contentious cases, the courts relied on consistent 

legal threads: from lower to higher courts. All three cases 

were decided upon either procedural or substantive APA 

claims. Procedurally, APA requires that a substantive rule 

go through the notice-and-comment process. Substantively, 

the promulgated agency rule in question cannot conflict 

with enacted laws, in excess of statutory authority, or be 

arbitrary and capricious. 18 

Each court started by addressing the standing issue, which 

determines if the party is allowed to sue in court. The 

inquiry was to make sure that parties challenging the 

agency action were interested enough in the outcome of 

the case. Standards of standing included particularized 

injury, prudential standing, and APA standing? 

specifically for review of agency action. Other than 

traditional standing tests, the court also considered parens 

patriae standing and abdication standing. 

The court conducted comprehensive standing tests to 

evaluate the eligibility of parties challenging agency 

action. The courts decided the three cases based rigorously 

on APA claims and avoided constitutional inquiries when 

possible. The Supreme Court?s standing analysis has been 

?especially rigorous when reaching the merits of the 

dispute would force the Court to decide whether an action 

taken by one of the other two branches of the federal 

government was unconstitutional.? 19 Rarely are issues 

decided on constitutional grounds if there are viable 

alternative legal standards. Thus, all three cases were ruled 

on APA claims. 

The court proceeded from procedural to substantive APA 

turn. If the court can decide on procedural claims, it 

generally does not review substantive claims. The Fifth 

Circuit opinion on Texas I, however, incorporated a 

discussion of substantive claims as an additional ground to 

affirm the preliminary injunction, although the district 

court?s decision was based on procedural claims. The 

district court in Texas II also addressed the substantive 

claims because President Biden?s executive order indicated 

that the DHS would most likely address procedural issues 

regarding DACA. 20 Regents was purely argued on 

substantive grounds. 

The courts approached the procedural claims by 

determining if an agency action was substantive 

rulemaking, because a substantive rule requires a 

notice-and-comment process. To determine whether a rule 

was substantive, the courts focused on whether the rule 

16. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1847 (2020). 

17. Texas v. United States, 1:18-CV-00068 (S.D. Texas July 16, 2021). 

18. § 706. Scope of review, 5 USCS § 706 (Current through Public Law 117-80, approved December 27, 2021, with a gap of Public Law 117-58. Title 26 provisions are 

current through Public Law 117-80.). 


20. Texas v. United States, 2021 U.S. Dist. LEXIS 133114, 27 (U.S. Dist. 2021). 


71


severely restricted agency discretion. 21 

The courts analyzed the substantive claims by placing the 

agency action in the context of laws enacted by Congress. 

Critical inquiries included whether Congress had directly 

spoken on the issue addressed by the agency action and 

whether the agency?s interpretation of the statute was 

consistent and reasonable. The courts interrogated whether 

the agency had adequately explained and considered all 

important aspects of the agency decision. 22 

If the judicial branch cannot review the alleged agency 

action on APA grounds, it would resort to constitutional 

claims. In Texas I, the plaintiffs, mainly states with 

Republican governors and legislatures, alleged that DAPA 

and Expanded DACA violated the APA and the Take Care 

Clause of the Constitution and sought to enjoin these 

programs. The District Court of Southern Texas granted 

preliminary injunction to the plaintiff states on the 

procedural APA claim, and the Fifth Circuit affirmed based 

on both procedural and substantive APA grounds. The 

Supreme Court affirmed per curiam, where no opinion was 

issued. DAPA and Expanded DACA were enjoined from 

implementation. 23 

Both the district court and the Fifth Circuit started by 

examining if DAPA was reviewable under the APA and 

decided that it was. Reviewability under the APA requires 

that agency actions are final and that plaintiffs are within 

the zone of interest? the plaintiffs must ?come within the 

zone of interests to be protected or regulated by the statute 

or constitutional guarantee in question.? 24 The zone of 

interest requirement is important because it proves that the 

plaintiffs are directly affected by the complained agency 

action and entitled to challenge it. In this case, the issuance 

of DAPA and Expanded DACA was final, and the plaintiff 

states were regulated and protected by the INA, which put 

them within the zone of interest. 25 

Then, to address the procedural APA claim, the district 

court inquired whether DAPA was a substantive rule and 

concluded that it was. A substantive rule imposes rights 

and obligations, and it does not leave the agency and its 

decision makers meaningful room for discretion. Because 

DAPA and Expanded DACA would effectively grant 

lawful presence, they would create rights and obligations 

for state governments and other official agencies. They 

also prohibited agency discretion, because those who met 

requirements were most certainly to become recipients of 

the programs. Procedurally, because DAPA and Expanded 

DACA were reviewable agency actions and substantive 

rules, the fact that they did not go through the 

notice-and-comment process appropriately made them in 

violation of the APA. 26 

The Fifth Circuit also considered the substantive claim in 

addition to affirming the procedural one when reviewing 

the preliminary injunction: DAPA and Expanded DACA 

violated the APA because they were against existing law in 

the INA. Congress had directly spoken on the legality of 

DREAMers and had created a comprehensive system of 

removal and path to citizenship in the INA that was 

distinct from what DAPA and Expanded DACA 

delineated. 27 

Similarly, in Texas II, argued in 2021, the plaintiffs alleged 

that the original DACA violated the APA and the Take 

Care Clause of the Constitution and sought to enjoin 

DACA. The District Court of Southern Texas granted 

preliminary injunction to the plaintiff states on both 


22. Dep?t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020). 


24. Ibid., 809 F. 3d at 162. 

25. Ibid., 809 F. 3d at 163. 

26. Ibid., 809 F. 3d at 177. 

27. Ibid., 809 F. 3d at 180. 


72

procedural and substantive APA claims, although DACA 

was not enjoined. Subsequent appellate history is not yet 

available. DACA was a substantive rule reviewable under 

the APA, and it did not go through a notice-and-comment 

process. Substantively, DACA was against the existing 

regulations promulgated by the INA. 28 

In Regents, the plaintiffs, mainly composed of progressive 

state governments and institutions that already employed 

DACA-recipients as workers, sued the Trump 

Administration and sought to stop the rescission of DACA 

based on the substantive APA claim. The Supreme Court 

granted a preliminary injunction in favor of the plaintiffs 

and stopped DACA from being rescinded. The court ruled 

on the substantive APA ground that the DHS?s decision to 

rescind DACA was ?arbitrary and capricious.? The court 

first addressed and affirmed the reviewability of the 

rescission of DACA under the APA, like the district court 

in Texas I. If an agency fails to consider important aspects 

of the problem before its action, then the agency action is 

arbitrary and capricious. In Regents, then-DHS director 

Duke addressed only the element of benefit but not the 

element of forbearance in DACA, and her explanation was 

thus considered inadequate. Such inadequacy constituted 

?arbitrary and capricious? agency action, a violation of the 

substantial APA clause. 29 

The Importance of Standing Issues 

The resolution of standing inquiries was key to all three 

cases: it demonstrated the court?s logic and effort to 

prevent itself from becoming a pure battleground for 

political and policy debates, especially because these cases 

are litigation between state and federal governments. As 

quasi-sovereign entities, state governments are entitled to 

protect its citizens and its own interests, but they are not 


private parties, the normal litigants in lawsuits. The courts 

should consider how they draw the line in such cases. 

Executive branch initiatives in the face of congressional 

inaction on immigration law had instigated unforeseen 

disputes over the legitimacy of executive actions at court. 

The original failure of the DREAM Act was a direct 

consequence of a polarized America: uncompromisable 

bipartisan debate left the question unattended. The 

divergence persisted even with the executive branch?s 

efforts to address unauthorized immigration. At court, 

Republican state governments challenged the action of a 

Democratic federal administration, and Democratic state 

governments and institutions challenged the action of a 

Republican federal government. The court, which 

supposedly is neutral and apolitical, risked becoming 

another battleground for bipartisan division. 

Although the legal thread of the APA claims is essential to 

understanding the legality of DACA, DAPA and their 

rescission, what makes these series of cases unusual is the 

court?s determination of which parties have the right to 

challenge such a governmental action like DACA. The 

pivotal question boils down to who should have standing 

when asking for judicial review on executive agency 

actions. State governments and affiliated institutions are 

not normal litigants in lawsuits against the federal 

government, because they are not directly regulated by the 

statute in question. 30 The key issue here is that a political 

battle is at play in the apolitical court, where conservative 

and progressive state governments and institutions each 

challenge individual governmental action that goes against 

their interest and ideology, especially in an area like 

immigration regulation where the federal government has 

sole authority over. 31 Thus, this makes the series of cases 


29. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. at 1911 (2020). 

30. Texas v. United States, 86 F. Supp. 3d at 648 (U.S. Dist. 2015). 

31. ?Epilogue: Liberal Politics in California in an ?ERA of Limits,?? California Crucible, 2012, 278, https://doi.org/10.9783/9780812206241.269. 


73


more than just about illegal immigration, but about how 

the court developed a system to evaluate who can request 

judicial review of governmental action in court. Texas I, 

Regents, and Texas II can serve as a case study of how the 

court has handled the issue of standing of state 

governments against the federal government in the realm 

over which the federal government has entire control. It is 

essential to investigate how the court has tried and 

managed to stay neutral and to avoid becoming the pure 

battlefield for political debate in such litigation. 

Standing issues are important because they are the 

prerequisite for federal court jurisdiction: they ensure that 

only parties interested enough in the outcome of the 

lawsuit can participate. Standing is a constitutional 

requirement for federal court jurisdiction that restricts the 

court to only the resolution of disputes between parties that 

have stakes in the outcome of the lawsuit. The parties to a 

case must have a real motivation to prosecute the case and 

advance arguments, so that the court remains a place to 

resolve ?actual case or controversy.? Article III, Section 2 

of the Constitution illustrates the basics of the case or 

controversy principle; the most important of all is that the 

plaintiff must have suffered or will suffer ?injury in fact? 

from the alleged complaint. 32 This principle safeguards the 

court from becoming the place for generalized or purely 

ideological debates. 

In this unusual series of cases concerning DACA, DAPA, 

and relevant rescissions, the Court had to carefully enforce 

the case or controversy requirement to avoid becoming 

grounds for pure political battles. First, Texas I, Texas II, 

and Regents are unusual because the plaintiffs in all three 

cases are ?third parties?: none of them are directly 

regulated by the agency actions in question. DACA and 

DAPA all pertain to unauthorized immigrant individuals, 

but the plaintiffs are state governments and institutions 

who employed DACA recipients. Second, the relationship 

between state, federal government, and citizens in a 

federation makes the standing issues more precarious to 

resolve. To form a federation, state governments must give 

up certain rights, such as the right to protect its borders and 

enter war. This puts state governments in a quasi-sovereign 

position, where they rely entirely upon the federal 

government on the issue of immigration regulation but 

retain a fair level of sovereignty. 33 Since citizens are 

citizens of both the state and the federal governments, the 

court must resolve if the state government can vest its 

standing in the interests of its citizens. The quasi-sovereign 

position should be taken into consideration when state 

governments sue the federal government. The issue is 

further complicated by the political stance of the state 

government. States are commonly characterized as blue, 

red, or swing states based on their political inclination. 

This makes the standing issues particularly delicate; 

granting standing by the traditional standards may result in 

an abuse of litigation for political purposes. 

Relevant standards of standing include traditional 

particularized injury test and prudential test, as well as 

nontraditional parens patriae and abdication standing tests. 

The court examined particularized injury standing, 

prudential standing, the APA standing, parens patriae 

standing, and abdication standing to defend itself against 

the possible landslide to turn into a field of bipartisan 

political battle. The plaintiff states presented two 

categories of arguments for standing: direct, particularized 

injury claims and third-party injury claims on behalf of 

their citizens. Traditional tests of standing include 

particularized injury standing and prudential standing. 

They are pertinent to the court?s subject matter jurisdiction 

and are used prevalently in all sorts of federal litigation. 34 





74

Particular to this series of cases were the APA standing 

issues, since the core of the plaintiff?s arguments rested on 

the APA. APA standing establishes reviewability under the 

APA. The court, conscious of the delicacy of granting state 

governments standing, took the standing inquiry beyond 

these usual tests to formulate a controlling and replicable 

framework of standing review in litigation concerning 

states against the federal government in political 

divergence. The court ultimately developed two additional 

standing tests from investigating and challenging 

precedents: parens patriae standing and abdication 

standing. Both tests concern the precarious relationship 

between quasi-sovereign states, the federal government, 

and citizens; they are intended to resolve standing issues in 

third-party injury claims on behalf of citizens. 

To approach the plaintiffs? direct injury standing claims, 

the court utilized particularized injury and prudential 

standing. The particularized injury standing inquiry is the 

most widely applied test in federal courts that draws 

directly from Article III requirements: the plaintiff must 

suffer or will suffer from a concrete and particularized 

injury from the alleged complaint, there must be a causal 

connection between the injury and the complaint, and 

redressability. 35 

Direct injury is often the most straightforward channel to 

standing in litigation of private parties. Alternatively, the 

federal courts follow prudential principles of standing: the 

party must demonstrate its own legal rights and interests 

that is more than a generalized grievance, and the 

complained-of conduct must be within the party?s zone of 

interest. The zone of interest requirement states that the 

plaintiffs must come within the zone of interest to be 

protected or regulated by the statute or constitutional 

guarantee in question. 36 


In this case, the INA is the relevant statute with regard to 

the exclusion and removal of unauthorized immigrants. 

The law establishes that unsanctioned entry into the 

country is a crime, and those who have either entered 

unlawfully or overstayed their permission are subject to 

deportation. The Supreme Court had long recognized that 

the state governments have an interest to enforce the 

INA. 37 

APA standing requirements are to establish APA claims 

and are only marginally related to the framework of 

standing this paper investigates. It is therefore only briefly 

introduced here and will not appear in case discussions. 

For reviewability of agency actions under the APA, the 

states need to prove standing under the APA, which 

requires the party to show that it has suffered or will suffer 

an injury in fact and satisfied the prudential requirement of 

the interest falling within the zone of interest. Plaintiffs 

seeking review of agency action are offered a favorable 

presumption of standing. 38 

To probe the plaintiffs?third-party injury standing claims, 

the court developed two standing tests that delineate the 

delicate relationship between state and federal 

governments over the issue of unauthorized immigration: 

(1) parens patriae standing, and (2) abdication standing. 

Parens patriae standing is the doctrine of protection by the 

government of its citizens; this principle enables a state to 

bring a lawsuit to protect the interests of its citizens, even 

when it cannot show particularized injury. The 

requirements of parens patriae standing for a state 

government against the federal government is twofold, 

illustrated by Massachusetts v. Mellon (1923): the purpose 

of the suit should be to seek adherence to or enforcement 

of a federal statute, and the state must identify a 

quasi-sovereign interest that is harmed by the alleged 


36. Ibid. 

37. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. at 1899 (2020). 



75


under-enforcement. A quasi-sovereign interest is a tricky 

component. Its defining characteristics are not 

consolidated in case law, and they have experienced vast 

expansion over time. There are two rough categories: the 

first category is the health and well-being of its citizens, 

including physical and economic aspects; the second 

category is ?not being discriminatorily denied its rightful 

status within the federal system.? 39 

Abdication standing is given by the federal government 

asserting sole authority over a certain area of American 

life, excluding any authority or regulation by a state, and 

yet subsequently refusing to act in that area. This offers the 

states standing to challenge the federal abdication to 

protect itself and the interests of its citizens. The plaintiffs 

need to show that the state government is powerless in 

such an area and that the federal government has declined 

to act. 40 

Alternatively, some lower courts in these series of cases 

refer to abdication standing as Massachusetts v. E.P.A. 

(2007) standing, which grants state governments ?special 

solicitude? to sue the federal government, even though 

they are not private individuals. 41 ?Special solicitude? is 

essentially the same as abdication. In the original case, 

Massachusetts sued the EPA for the under-enforcement of 

greenhouse gas emissions on new motor vehicles, which 

purportedly contributed to a rise in sea levels and a loss in 

the state?s coastal land. The court decided that 

Massachusetts had a special solicitude to standing in order 

to protect its quasi-sovereign proprietary interest as a 

landowner because the Clean Air Act (CAA) specified that 

its enforcement is to sole authority of the EPA under the 

federal government. 42 By parallel, because the INA 

provisions and Supreme Court precedents supported that 

the federal government has sole authority to enforce 

immigration law, states like Texas should have a special 

solicitude to standing as well. 

Analysis 

The Court went beyond typical standing tests in Texas I, 

Texas II, and Regents to remain neutral. In all three cases 

the Court recognized that typical standing tests were 

insufficient to determine if a state government should have 

standing in litigation against federal governmental action 

and thus engaged in comprehensive analysis to resolve 

standing issues. The court needed more than traditional 

methods of standing to ensure the proper functioning of the 

court as settling the dispute of only an actual case or 

controversy. The detailed court opinions of Texas I, Texas 

II, and Regents illustrate how the court avoided becoming 

platforms for pure political and policy debates. 

The court used the basic particularized injury requirement 

to evaluate whether the plaintiffs had demonstrated valid 

standing to direct injury claims on its face. The basic 

particularized injury requirement is a strict test to evaluate 

whether a plaintiff has demonstrated valid standing to 

direct injury claims and is thoroughly analyzed in all three 

cases. Overall, decisions in Texas I and Texas II exhibited 

great parallel and will be discussed by comparison. 

Decisions in Regents also demonstrated the court?s 

coherent logic to apply the particularized injury test. 

Plaintiff states in Texas I satisfied particularized injury 

standing because one of the plaintiffs, the state of Texas, 

had successfully shown a concrete and particularized 

injury in connection with the government?s action to pass 

DAPA and Expanded DACA, and the remedy sought 

would prevent the alleged harm. Texas argued that the 

39. Ibid., 86 F. Supp. 3d at 626. 

40. Ibid., 86 F. Supp. 3d at 637. 


42. Massachusetts v. EPA, 549 U.S. 497, 505 (2007). 


76

DHS directive would cause direct and significant 

economic injury to its fiscal interest, because the programs 

would enable a new class of unauthorized immigrants who 

were otherwise ineligible to apply for driver?s licenses. 

Under Texas state law, the government was required to 

cover all remaining costs for creating licenses apart from 

the small portion of fees paid by the applicants. This would 

result in more than $100 net loss for each license 

processed. With the DHS Directive making a new group of 

aliens eligible for driver?s licenses, there would be an 

increase in fiscal deficits. 43 This was a concrete and 

particularized injury for Texas that was directly caused by 

the passage of DAPA and DACA extension. The remedy 

sought by the plaintiffs? a preliminary injunction that 

prevents the programs from going into effect? would 

sufficiently address the harm that the state was about to 

suffer. 

Likewise, although the District Court of Southern Texas in 

Texas II does not specifically address the issue of standing 

from a particularized injury standpoint, it was clear that the 

plaintiffs met these requirements. DACA, like DAPA and 

Expanded DACA in Texas I, caused ?institutional injury to 

the [states?] lawmaking authority? and fiscal injury to the 

economic base of the state. The injury could be addressed 

by the alleged action? the enjoinment of DACA. 44 

In Regents, the plaintiff states had established 

particularized injuries caused by the rescission of DACA. 

For at least one of the plaintiffs, the state of California, 

replacing already-employed DACA recipients would incur 

additional hiring and training costs. Other plaintiffs such as 

Maine would lose $96,000 in annual and local tax base. 

These injuries were directly attributable to the DHS 

rescission of DACA. These injuries could be remedied by 


the plaintiffs' alleged claims? vacating the rescission of 

DACA. 45 

The court?s acceptance of direct injury claims was fairly 

unambiguous, because the plaintiffs in all three cases could 

pinpoint particularized injuries based on their institutional 

identities. Standing to direct and particularized injury 

claims were addressed on behalf of the plaintiffs 

themselves rather than third parties. 

The court applied prudential standing standards to affirm a 

direct link between the plaintiffs and the alleged 

complaints. In addition to particularized injury, the court 

considered prudential standing specifically to ensure that 

the alleged complaints from the plaintiffs were not entirely 

rested upon third parties and that the plaintiffs were 

protected or regulated entities of the statute at issue. This 

test requires a less strict direct injury than the 

particularized injury test, but it still emphasizes that the 

states should have sufficient stake in the outcome of the 

case. Here, because the key issue was unauthorized 

immigration, the statute at issue was the INA in all three 

cases. 46 

Plaintiffs in Texas I satisfied requirements for prudential 

standing, because the plaintiffs were within the zone of 

interest of protection by the INA and the states were 

seeking to protect their own interests. The direct injury 

caused by the DHS Directive issuing DAPA and Expanded 

DACA was distinct from a ?generalized grievance.? A 

?generalized grievance? is a harm shared equally by all or 

a large class of citizens. 47 As discussed in the 

particularized injury requirement, the state of Texas had 

proved a direct, personalized injury to their fiscal interests 

from the government?s action, and that injury was not 

rested upon the regulated unauthorized immigrants. The 



45. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d at 1026 (U.S. Dist. 2018). 


47. Ibid., 86 F. Supp. 3d at 615. 


77


The plaintiff states were within the zone of interest to be 

protected by relevant immigration statutes. It was the duty 

of the federal government to protect the borders and 

enforce the immigration laws. DAPA undermined the 

guidelines to deal with unauthorized immigration set forth 

in the INA, which Congress had entrusted the government 

to enforce and protect the states. 48 This fact alone put the 

plaintiffs within the zone of interest. 

Applying similar logic, the states in Texas II had shown 

that they suffered more than generalized grievances and 

that they were within the zone of interest protected by the 

INA. The damages? institutional and economic 

injuries? proposed by the states were not entirely rested 

on the third parties, the DREAMers, but were relevant to 

the plaintiffs themselves. Because the federal government 

has sole authority to enforce the INA that supposedly 

protects the borders of the states, the plaintiffs were within 

the zone of interest. 49 The Fifth Circuit decision in Texas I 

was a controlling precedent that could help lay out the 

potential arguments if Texas II is ever argued at higher 

courts. 

Plaintiffs in Regents sufficed the requirements of 

prudential standing. They did not propose generalized 

grievances but had shown concrete injuries that rested on 

their own interests. Their interests were not ?so marginally 

related? to the purposes implicit in the INA, except for 

Maine and Minnesota?s, whose claims were dismissed. 

Local and state governments San Jose, Santa Clara, 

California, and Maryland and state institution the 

University of California were employers of current DACA 

recipients, who were entitled to work authorizations. 50 If 

DACA was rescinded, they would lose such authorizations 

and the employers would either be subject to criminal and 

civil liability for knowingly employing unauthorized aliens 

laid out in the detailed INA provisions or suffer from 

financial loss. 51 Therefore, these plaintiffs were within the 

zone of interest to be protected and regulated by the INA. 

The court applied the prudential standards to test how 

interested plaintiffs were in the dispute and, specifically, to 

the statute relevant to the dispute in question. In evaluating 

the standing of plaintiffs in a case challenging an agency 

action, the court first went about identifying the statute 

relevant to the alleged claims and then assessing how 

interested the parties are in the statute. The absence of this 

step may result in allowing purely ideological arguments to 

advance in court. 

The court utilized parens patriae standing as an avenue to 

assess the state government?s legality to challenge federal 

government on behalf of its citizens. Parens patriae, 

meaning ?parent of the country,? grants state governments 

position as parents to their citizens; this suggests that state 

governments could root their the injury of its citizens 

rather than or in addition to a direct injury. Parens patriae 

standing was discussed at length in Texas I and Texas II; 

the court ultimately rejected the parens patriae argument 

in Texas I but accepted it in Texas II. The key determinant 

was whether the damage was ripe, which requires the 

agency's decision to be final. 

In Texas I, plaintiffs alleged that they were entitled to 

parens patriae standing because they were suing to protect 

the economic interests of their residents from the federal 

government?s actions by seeking to enforce the INA; the 

district court, however, ultimately rejected such an 

argument because the damage was not ripe. The economic 

interests of residents belong to the first category of 

quasi-sovereign interests, the health and well-being of 

48. Texas v. United States, 809 F. 3d 134, 147 (5th Circ. 2015). 

49. Ibid., 809 F. 3d at 152. 

50. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d 1011, 1026 (U.S. Dist. 2018). 

51. Ibid., 279 F. Supp. 3d at 1036. 


78

citizens. On its face, this case satisfied the two 

requirements for parens patriae standing, but the court 

rejected the plaintiffs?argument after careful investigation. 

The states maintained that DAPA and Expanded DACA 

would introduce more labor market competition for legal 

residents, because employers were not required to provide 

certain healthcare benefits to DACA recipients under the 

ACA, making them lower-cost labor. The court decided 

that the economic damages were at best speculative, 

because the government had not yet released any action to 

exempt employers from providing mandatory benefits for 

DAPA recipients and inferences of damage merely based 

on past practices were premature. 52 The Supreme Court has 

long held the tradition to discourage the resolution of 

controversies that are not ripe: courts should avoid 

?entangling themselves in abstract disagreements . . . until 

an administrative decision has been formalized and its 

effects felt in a concrete way.? 53 The district court 

discussed in length but finally declined to accept parens 

patriae as an independent ground for standing, and the 

Fifth Circuit did not address this question. 

The district court in Texas II accepted the plaintiffs? 

allegation of parens patriae standing, because, as opposed 

to the economic interests in Texas I, the controversies were 

ripe. Based on prior cases, higher courts are unlikely to 

overturn this opinion on parens patriae standing. As 

previously stated, DACA recipients were expressly barred 

from ACA?s insurance mandates, whereas DAPA recipients 

were not. 54 Thus, the controversy regarding DACA was 

ripe. Because the economic interests in Texas II was a 

legitimate quasi-sovereign interest that was caused by the 

under-enforcement of the INA, higher courts are likely to 

uphold the district court?s decision on parens patriae 

standing. 55 

Considering the precarious relationship between the state, 

its citizens and the federal government, the court had been 

cautious when awarding parens patriae standing: the 

crucial takeaway was that although citizens? economic 

interests were valid quasi-sovereign interests, the court 

could not tolerate speculative claims. Comparing the 

particularized injury test and the parens patriae test in 

Texas I demonstrates that the court applied a stricter 

standard for injury when considering indirect claims. 

While plaintiffs could point to the effects of DACA when 

they made particularized injury claims against DAPA and 

Expanded DACA, they could not make use of the same 

reference in the parens patriae argument. The court 

employed abdication/Mass. v. EPA standing to protect the 

rights of the state government?s quasi-sovereign status 

upon forming a union. Abdication standing is the most 

unequivocal standing test to show how the state 

government can assert claims against the federal 

government in an area that the state is powerless in. The 

district court opinion in Texas I called abdication standing 

?[t]he most provocative and intellectually intriguing 

standing claim.? Here, the states sued the federal 

government as a quasi-sovereign state. 56 In Mass. v. EPA, 

the court precisely characterized the rights and powers of 

state and federal governments: 


When the states joined the union, they surrendered 

some of their sovereign prerogatives over immigration. 

They cannot establish their own classifications of 

aliens, just as ?Massachusetts cannot invade Rhode 


53. Ibid. 


55. Ibid., 2021 U.S. Dist. LEXIS 133114 at 34. 

56. Ibid. 


79


Island to force reductions in greenhouse gas emissions 

[and] cannot negotiate an emissions treaty with China 

or India.? 57 

The court recognized that the states are powerless in 

certain policy areas. When a state challenges the federal 

government, the court mainly judges if the federal 

government is silent over the area in which it exerts full 

authority. The Supreme Court has clearly voiced in 

Arizona v. United States (2012) that state governments 

cannot enforce immigration laws in any respect. 58 

The two elements of abdication standing, the 

powerlessness of the state in the area in discussion and the 

rejection to act of the federal government, were fairly 

straightforward to prove in Texas I and Texas II. In both 

Texas I and Texas II, it was clear that the states had 

virtually no power to protect themselves from the effects 

of unauthorized immigration, because they could not 

enforce immigration laws. In Arizona, the federal 

government sued the state of Arizona when it attempted to 

enforce locally enacted immigration restrictions, although 

the state bore direct damages from unauthorized 

immigration. 59 The second element was satisfied by the 

DHS?s reluctance to deport removable personnel over the 

years and its outright rejection to enforce the INA. 

The court in Regents briefly mentioned another aspect of 

Massachusetts v. EPA: similar to prudential standing 

standards, the inquiry focused on whether the plaintiffs had 

sufficient personal stakes in the outcome of the case or 

controversy ?to ensure that the parties will be truly adverse 

and their legal presentations sharpened.? 60 It was also 

analogous to the particularized injury requirement. The 

court in this case did not distinguish a state ?special 

solicitude? from particularized injury or prudential 

standing but still stressed the importance of the state 

government?s interest in litigation that disputes the agency 

action under the federal government. This line of reasoning 

suggests that it is also a quasi-sovereign interest of the 

state to ensure that their essential interests, the power of 

enforcement of which is transferred to the federal 

government upon forming a union, are duly protected by 

the union. 61 Abdication standing offers state governments 

protection to retain their entitled rights, even though they 

are not legally permitted to carry out the execution of these 

rights. 

Parens patriae and abdication standing? these two other 

?nontraditional? grounds for standing both indicate a 

state?s quasi-sovereign concerns as part of the federal 

system and recognize the need for states to sue the federal 

government for such concerns. To form a federation, states 

give up rights such as regulating immigration, but they still 

maintain a quasi-sovereign status that, more often than not, 

enables them to bring suit against the federal government 

for both their own institutional interests and the interests of 

their citizens. 

Conclusion 

Apart from the traditional particularized injury and 

prudential standing tests, the court developed and carefully 

exercised two additional standing tests? parens patriae 

standing and abdication standing? to seek to remain 

apolitical in a politically charged series of cases. In Texas I, 

Texas II, and Regents, the court presented a comprehensive 

investigation of standing issues when state governments, 

which are not normal litigants in lawsuits, challenged the 

legality of the federal government?s agency action. Along 

with each test of standing, the court decisions illustrated 

the court?s main concerns and objectives for each of the 

tests applied. Both conservative and progressive states 

asserted direct and indirect injury claims to showcase their 

legitimacy to standing. The court realized the urgent need 

57. Massachusetts v. EPA, 549 U.S. 497, 520 (2007). 

58. Arizona v. United States, 567 U.S. 387, 418 (2012). 

59. Ibid., 567 U.S. at 420. 

60. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d at 1033 (U.S. Dist. 2018). 

61. Massachusetts v. EPA, 549 U.S. at 514 (2007). 


80

to elaborate beyond the existing tests of standing to stand 

neutral. 

Traditional tests of standing served to assess the standing 

of the plaintiff states as if they were normal private 

litigants. The particularized injury and prudential standing 

tests are the court's effects to make sure that the states, no 

matter where they stand on the political spectrum, are not 

abusing the right to sue, just as the private individual is 

forbidden from bringing a lawsuit on purely ideological 

grounds no matter what values they hold. The plaintiffs? 

claims cannot rest entirely upon third parties and must be 

directly affected by the agency action. 

Both nontraditional methods specifically gauge the 

delicate quasi-sovereign status of state governments within 

the union. The court considered the convoluted 

relationship between state government, federal 

government, and the citizens. The court then determined if 

a state government was entitled to sue the federal 

government to protect the rights of itself and its citizens, 

under the fact that state governments gave up certain rights 

and powers in forming a federation. In the case of 

immigration, where the federal government has sole 

authority to regulate, the state has a quasi-sovereign 

interest to have its physical borders and economic interests 

protected. 


the area of illegal immigration has been the hotbed for 

such political debates. Therefore, beyond traditional tests 

for standing, the court incorporated the quasi-sovereign 

status of states into the standing tests and ultimately 

cultivated a more well-rounded system for standing issues 

in the context of state government as litigants. The system 

treated state governments in litigation more demandingly 

than private citizens, because state governments, as entities 

of tremendous political power, could potentially abuse 

standing to sue on a larger scale. The system also 

acknowledged that state governments should be entitled to 

a certain level of standing to protect the interests of itself 

and its citizens. 

The court, however, utilized a stricter standard for injury 

when evaluating indirect injury claims. The plaintiffs 

cannot assume indirect injury by extrapolating from past 

governmental practices but can make an argument using 

historical data when establishing direct injury claims. 

The court walked a fine line between granting state 

governments standing to rightfully protect their rights and 

overpowering state governments as litigants that the court 

becomes the ground for mere political battles. Particularly, 


81

OUTSOURCING LIABILITY: 

THE LEGAL ACCOUNTABILITY OF 

THE PRIVATE MILITARY INDUSTRY 


ABSTRACT 

Unlike traditional militaries, which face a range of controls over their actions? from internal checks 

and balances to international laws? no agency or legislative overseeing body exists to control the 

actions of private military contractors (PMCs) beyond their shareholders. Hired through different 

government departments, these independent contractors fall outside the legal domain of both the U.S. 

military and the U.S. government, leading to diffused chains of responsibility and accountability. This 

essay uses the Abu Ghraib prison scandal as a case study to investigate the complex criminal 

accountability of PMCs. It argues that while certain laws are available to prosecute PMCs, they are 

limited by numerous exceptions? exceptions which have unfortunately weakened the case of the 

victims in the Abu Ghraib scandal. 


82

Outsourcing Liability: The Legal Accountability of the Private Military Industry 

Introduction 

What we see in these images, and hear from the accounts 

of activities that went on at Abu Ghraib? a U.S. Army 

The soldiers zip-tied the prisoners? hands behind their 

prison in Iraq used to detain captured Iraqis? are war 

backs and hooded them as they marched them single-file 

into the cell block at Abu Ghraib prison. 1 crimes recognized under U.S. and international law. 

It was a still 

5 Yet 

over a decade later, and after six separate military 

November night in 2003. Husein Mutar, an Iraqi detainee, 

investigations, only a handful of low-level military 

remembers it clearly: ?They threw us in a pile, and then I 

heard footsteps running.? 2 personnel have been held responsible for these atrocities 

A soldier dived on top of him, 

committed. 

hitting him on his face and knees. Through his hood, he 

6 Multiple lawsuits have been filed on behalf of 

the victims of the Abu Ghraib scandal, most recently Al 

could hear the men around him crying, while the guards, 

Shimari, et al. v. CACI; however, the search for redress 

?screaming and laughing,? ordered the prisoners to strip. 

before the court has so far proved fruitless. Only one case, 

Anyone who refused would be cut with a knife. ?All I 

Al-Quraishi v. Nakhla and L-3 Services, Inc. (which was 

could hear was the screaming of people around me and 

myself screaming,? Husein would later testify. 3 settled confidentially out of court), has granted 

He and the 

compensation to victims of torture and prison abuse in Iraq 

others were piled into a human pyramid, after which they 

under U.S. occupation. 

were forced to masturbate. 

Investigators repeatedly stumbled upon one of the primary 

Images of that night, and many others at Abu Ghraib, 

reasons for this in their inquiries: Several of the 

surfaced in 2004, achieving global media coverage and 

perpetrators were not soldiers but ?independent corporate 

sparking demands for accountability from around the 

contractors,? and thus were outside the scope of the 

world. Looking at the photographs, one can see naked 

military?s legal jurisdiction. 

inmates being paraded on leashes, stacked into piles, and 

7 By spring 2004, the U.S. 

government employed over 20,000 private contractors 

hung from their wrists, often with U.S. military personnel 

from more than 80 different corporations in Iraq, engaging 

laughing and posing beside them. The photographs are a 

them in a wide range of military capacities. 

disturbing, gruesome reminder of humanity?s ability to 

8 More than 

half of all the interrogators at Abu Ghraib were employees 

inflict suffering and torture. However, their shock value 

of CACI International Inc., a private military contractor 

lies not only in their depiction of torture and abuse, but 

(PMC), while employees of Titan Corp made up all the 

also in the patriotic excitement of the torturers: the uneasy 

translators who enabled the interrogators to communicate 

sense of America ?out of place,? a contradictory image of 

?the liberators engaged in torture.? 4 

with the detainees. According to the army?s reports, at least 

16 of the 44 incidents of abuse alleged to have happened at 

1. Kate Zernike, ?Detainees Describe Abuses by guard in Iraq Prison,? New York Times, January 12, 2005, https://www.nytimes.com/2005/01/12/world/detaineesdescribe-abuses-by-guard-in-iraq-prison.html. 

2. Ibid. 

3. Ibid. 

4. Michelle Brown, ??Setting the Conditions?for Abu Ghraib: The Prison Nation Abroad,? American Quarterly 57, no. 3 (September 2005): 973, 

https://www.jstor.org/stable/40068323. 

5. The Editorial Board, ?Will Anyone Pay for Abu Ghraib?? New York Times, February 5, 2015, https://www.nytimes.com/2015/02/05/opinion/will-anyone-pay-forabu-ghraib.html. 

6. Peter W. Singer, ?The Contract the Military Needs to Break,? Brookings Institution, September 12, 2004, https://www.brookings.edu/opinions/the-contract-themilitary-needs-to-break/. 

7. Ibid. 

8. Mark O. Hedahl, ?Outsourcing the Profession: A look at Military Contractors and their Impact on the Profession of Arms,? Staff paper presented at the Joint Services 

Conference on Professional Ethics, Springfield VA, http://isme.tamu.edu/JSCOPE05/Hedahl05.html. 


83


Abu Ghraib involved private contractors. 9 

shift of responsibility and liability for human rights 

violations from the government to the private sector. 

Unlike traditional militaries, which face a range of controls 

over their actions? from internal checks and balances to This essay uses the Abu Ghraib prison scandal as a case 

international laws? no agency or legislative overseeing study through which to investigate the complex nature of 

body exists to control the actions of private military the criminal accountability of private military contractors. 

contractors (PMCs) other than their shareholders. Hired It argues that while certain laws are available to prosecute 

through different government departments, independent PMCs, they are limited by numerous exceptions, which 

contractors often fall outside the legal domain of both the have unfortunately weakened the case of the victims in the 

U.S. military and the U.S. government, leading to diffused Abu Ghraib scandal. In the first section, the paper traces 

chains of responsibility and accountability. While U.S. the history of PMCs and describes the sources of their 

military personnel can be prosecuted for crimes they proliferation. The second section subsequently examines 

commit under the Uniform Code of Military Justice the involvement of PMCs in the abuses committed at Abu 

(UCMJ), this code historically has not applied to those Ghraib. Finally, the third section analyzes the legal 

working for other entities in instances when war has not avenues through which PMCs might be held liable for 

been formally declared. 10 Consequently, the possibility of criminal and civil offenses, drawing from military as well 

legal recourse against these corporations is extremely as civil law. 

narrow: The activities of PMCs occupy a ?legal loophole,? 

The Rise of the Private Military Industry 

a space of exceptionalism under which they encounter 

limited legal accountability. 11 

Hiring someone else to fight your wars for you is as old as 

the act of war itself. 13 Indeed, practically every empire in 

Clearly, the story of what happened at Abu Ghraib is 

history, from the Byzantine to the British, contracted 

incomplete without an account of the role played by 

outsider forces to wage their battles. In certain periods, 

private contractors in Iraq. But more importantly, if redress 

these were mercenaries or individual soldiers of fortune 

is to be found for the victims of these crimes, it is also 

willing to fight for the highest bidder; in others, outside 

crucial to understand the nature of PMCs? legal 

forces constituted organized troops. As Peter Singer, senior 

exceptionalism. Where did this relative impunity come 

fellow at the Brookings Institution and author of the book 

from? And how can it be curtailed? These questions are 

Corporate Warriors, has observed, the monopoly of the 

particularly pressing considering the growing centrality of 

state over violence may even be ?the exception in world 

private contracting in American warfare. Since 2009, the 

history, rather than the rule.? 14 

ratio of contractors to troops in war zones has increased 

from one to one to approximately three to one. 12 Such 

In the United States, private military contractors have 

reliance on outsourcing to wage war suggests a troubling 

supported the military as far back as the Revolutionary and 

Civil Wars. 15 During the Revolutionary War, the 

9. Singer. 

10. Ibid. 

11. Anna Leander, ?The Paradoxical Impunity of Private Military Companies: Authority and the Limits to Legal Accountability,? Security Dialogue, 41, no. 5 (October 

2010): 467-490, https://www.jstor.org/stable/26301165. 

12. Sean McFate, ?America?s Addiction to Mercenaries,? Atlantic, August 12, 2016, 

https://www.theatlantic.com/international/archive/2016/08/iraq-afghanistan-contractor-pentagon-obama/495731/. 

13. P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, (Ithaca, NY: Cornell University Press, 2007), 19. 

14. Ibid. 

15. Sarah K. Cotton et al., ?Private Military and Security Contractors Are Not a New Phenomenon: A Brief History of Military Privatization,? in Hired Guns: Views 

About Armed Contractors in Operation Iraqi Freedom, (Santa Monica, CA: RAND Corporation, 2010), 9?18, http://www.jstor.org/stable/10.7249/mg987srf.10. 


84


Continental Army depended on contractors to provide 

transportation and engineering services, construction, 

clothing, and weapons. 16 However, the United States?use 

of private military contracting greatly expanded in the 

twentieth century, in part due to advances in military 

technology. During World War II, the increased complexity 

of military technology meant that the ?manufacturer?s 

technical representative? became a prominent actor on the 

battlefield for the first time. 17 As Charles Shrader, former 

executive director of the Society for Military History, has 

experience in Vietnam led the U.S. military in 1985 to 

implement Army Regulation (AR) 700-137, ?Logistics 

Civil Augmentation Program (LOGCAP),? a directive 

which aimed ?to pre-plan for the use of civilian contractors 

to perform selected services in wartime to augment Army 

forces.? 22 Under LOGCAP, ?operational commanders? 

could ?identify their requirements? and request ?contracted 

private sector capabilities . . . to meet mission needs during 

global contingency operations.? 23 A federal regulatory 

body would supervise the acquisition of contracts and 

noted, these ?tech reps? were to be found at ?airfields, oversee that LOGCAP contractor personnel were 

depots, and repair facilities,? and sometimes even ?in the ?authorized to use force only for individual 

front lines seeking solutions to technical and operational 

problems regarding equipment supplied by their firm.? 18 

In 1955, the former Bureau of Budget put forth a memo 

encouraging federal branches to use private channels to 

supply goods and services, which established a precedent 

for the Department of Defense (DoD) to further expand the 

role of PMCs during the Vietnam War. 19 In Vietnam, 

private contractors were deployed in greater numbers and 

performed a wider variety of assignments than ever before, 

with tasks ranging from intelligence analysis to weapons 

self-defense.? 24 

While these developments and the introduction of 

LOGCAP certainly propelled the emergence of the private 

military industry, the global trend towards privatization 

and the end of the Cold War were instrumental to its 

expansion into its current form. As Singer notes, the end of 

the war prompted a shock to the supply and demand of 

military services, creating a ?vacuum in the market of 

security? that private industry sought to address. 25 Budget 

reductions in the U.S. Army led to substantial cuts to 

maintenance and catering. 20 Indeed, data from the military logistical and support personnel, causing the DoD 

Congressional Budget Office shows that contractors made 

up 20 percent of the DoD workforce during the Vietnam 

era, double the proportion used in World War II. 21 This 

to increase their reliance on contractors to ?fill the gap.? 26 

Meanwhile, massive military demobilizations supplied a 

large pool of labor for the PMC industry to draw from and 

16. Moshe Schwartz and Joyprada Swain, ?Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis,? Congressional 

Research Service, May 13, 2011, https://sgp.fas.org/crs/natsec/R40764.pdf. 

17. Cotton et al., p.10. 

18. Charles Shrader, quoted in Sarah K. Cotton et al. p. 9. 

19. Cotton et al., 9. 

20. Ibid. 

21. U.S. Library of Congress, Congressional Research Service, Training the Military to Manage Contractors During Expeditionary Operations: 

Overview and Options for Congress, by Moshe Schwartz, R40057 (2008), https://crsreports.congress.gov/product/pdf/R/R40057/3. 

22. Cotton et al.,.9. 

23. Department of the Army, Logistics Civil Augmentation Program, Army Regulation 700?137 (2017), 

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN2768_AR700-137_Web_FINAL.pdf . 

24. Ibid. 

25. Singer, 49. 

26. Congressional Research Service. 


85


?a cheapening of start-up capital.? 27 PMCs consciously As Gordon L. Campbell, U.S. Army Combined Arms 

took advantage of these changes, as Colonel Tim Spicer, Support Command, noted in 2000 at a conference on 

an executive within the industry, has acknowledged: military ethics in a Virginia military base: 

The end of the Cold War has allowed conflicts long 

suppressed . . . to re-emerge. At the same time, most 

armies have got smaller and live footage on CNN of 

United States soldiers being killed in Somalia has had 

staggering effects on the willingness of governments to 

commit to foreign conflicts. We fill the gap. 28 

Consequently, in 1990 the DoD formalized the use of 

contractors within their total troops by declaring that it 

would ?rely on the most effective mix of the Total Force 

. . . including Active, Reserve, civilian, host-nation, and 

contract resources necessary to fulfill assigned peacetime 

and wartime missions.? 29 

In 1992, the first LOGCAP 

contract, LOGCAP I, was awarded to Brown and Root 

Services of Houston, TX (also referred to as KBR) for 

combat support services in Iraq. 30 Multiple subsequent 

LOGCAP contracts were granted over the course of the 

1990s, with contractors supporting Iraq Operations Desert 

Shield (1990) and Desert Storm (1991) under President 

George H.W. Bush, as well as Operations Restore Hope in 

Somalia (1992) and Restore Democracy in Haiti (1994) 

under the Clinton Administration. 31 

By the end of the decade, it had become clear that the 

military was dependent on contractors not only as support 

personnel, but as essential actors in day-to-day operations. 

The use of contractors to support military operations is 

no longer ?nice to have.? Their support is no longer an 

adjunct, ad hoc add-on to supplement a capability. 

Contractor support is an essential, vital part of our 

force projection capability? and increasing in its 

importance. 32 

Contractors became further entrenched within the U.S. 

military with the launching of a mass outsourcing initiative 

under President George W. Bush. According to a report 

commissioned by the Special Investigations Division of 

the House Government Reform Committee, $67.5 billion 

in noncompetitive contracts were awarded by the federal 

government to private contractors in 2000; a sum that rose 

to $145 billion in 2005? an increase of 115 percent. 33 By 

the later years of both the Afghanistan and Iraq Wars, 

private contractors made up half of the total U.S. personnel 

deployed. 34 

With this massive expansion of contractors?involvement, 

concerns about the regulation of PMCs began to proliferate 

among U.S. and international commentators in the late 

1990s and early 2000s. Military and legal scholars began 

to voice worries about the lack of applicability of U.S. 

criminal law outside U.S. maritime and territorial 

jurisdiction. The paper presented by Campbell at the 

27. Singer, 50. 

28. Ibid. 


30. U.S. Library of Congress, Congressional Research Service, Defense Logistical Support Contracts in Iraq. 

and Afghanistan: Issues for Congress,? by Valerie Bailey Grasso, RL33834 (2010), https://sgp.fas.org/crs/natsec/RL33834.pdf. 


32. Gordon L. Campbell, ?Contractors on the Battlefield: The Ethics of Paying Civilians To Enter Harm's Way and Requiring Soldiers To Depend 

Upon Them.? A paper prepared for presentation to the Joint Services Conference on Professional Ethics 2000, Springfield, Virginia, January 27-28, 

2000, https://web.archive.org/web/20010216030758/http://www.usafa.af.mil/jscope/JSCOPE00/Campbell00.html; Cotton et al., 11. 

33. Grasso, 2010. 

34. Reema Shah, ?Comment: Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military 

Companies,? Yale Law Journal 123, no. 7 (May 2014): https://www.yalelawjournal.org/comment/beating-blackwater-using-domestic-legislation 

-to-enforce-the-international-code-of-conduct-for-private-military-companies. 


86

Virginia conference reveals some of the sentiments aired at 

the time. 

The commander has no ?Command & Control? 

authority over contractor personnel. While the contract 

can require contractor personnel to abide by all 

guidance and obey all instructions and general orders 

applicable to U.S. Armed Forces and Department of 

Defense Civilians, they cannot be ?commanded.? 

Their relationship with the government is governed by 

the Terms and Conditions of their contract. . . . The 

lack of application of U.S. criminal law outside of our 

special maritime and territorial jurisdiction, creates an 

environment where civilians are untouchable despite 

commission of what would be serious crimes within 

the U.S. A contractor . . . could murder, rape, pillage 

and plunder with complete, legal unaccountability. 35 

Campbell?s words speak in warning of the limited 

accountability and control by the military of private 

contractors. His tone of alarm regarding the legal lacuna 

occupied by PMCs, still mostly conjectural at the time, 

reads today as a chilling prediction of what would be 

uncovered at Abu Ghraib four years later. 

The Abu Ghraib Prison Scandal 

Abu Ghraib is a large prison complex stationed twenty 

miles west of Baghdad, Iraq. During the U.S. military 

involvement in Iraq, it was the largest of seventeen prison 

facilities operated by U.S. forces. The prison was initially 

used as a jail for common criminals when the U.S. 

occupation began in March 2003. However, in the months 

that followed, U.S. troops began to transfer thousands of 

Iraqis to Abu Ghraib for interrogation. By October 2003, 

7,000 prisoners were held at the prison, many of whom 

had been picked up off the street or handed over by Iraqi 

police forces. 36 In order to supplement the interrogation 

and intelligence forces stationed at the prison, the U.S 

army hired employees from private contractors CACI 

35. Campbell, 12. 

International Inc. and Titan Corp. 

CACI International Inc. (hereafter referred to as CACI) is 

headquartered in Arlington, Virginia and specializes in 

?systems integration? solutions. The contract between the 

U.S. military and CACI that led to their placement in Iraq 

was initially awarded in 1998, with the stated purpose of 

supplying ?inventory control? for the United States. CACI 

was specifically a contractor of the U.S. Department of the 

Interior (DOI), and, as a 2004 article in the Washington 

Post describes, provided interrogation services at Abu 

Ghraib. Meanwhile, Titan Corp, a San Diego-based 

defense contractor, was hired by the DOI for translation 

services at various U.S.-operated prisons in Iraq. 

Throughout the fall and winter of 2003, many detainees at 

Abu Ghraib experienced numerous acts of severe mental, 

physical, and sexual torture. The abuses endured by the 

victims included ?repeated beatings, sexual humiliation, 

rape, sodomy, and an array of food, sleep, and sensory 

deprivations.? 37 After photographic evidence of these acts 

was discovered on a CD-ROM by an enlisted soldier in 

January of 2004, the DOD launched an internal 

investigation. Using statements of over 170 witnesses, 

including prisoners, U.S. service members, and employees 

of CACI and Titan, they discovered that 23 military 

intelligence personnel and four private contractors had 

been responsible for the abuses at Abu Ghraib, while two 

other contractors had witnessed but failed to report the 

incidents. 38 39 The investigating panel, led by Major 

General Antonio M. Taguba, concluded that these findings 

were supported by ?a preponderance of evidence? and that 

employees of CACI and Titan were directly involved in at 

least 16 out of 44 confirmed incidents of torture. 40 The 

?Taguba Report? consequently recommended that these 

36. Mark W. Bina, ?Private Military Contractor Liability And Accountability After Abu Ghraib 38 J. Marshall L. Rev. 1237 (2005),? UIC Law Review 38, no. 4 (Summer 2005): 1237-1360, 

https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1376&context=lawreview. 

37. Ibid. 

38. Jessica Ayer, ?Military Extraterritorial Jurisdiction Act: International Implications and Prosecutorial Considerations,? Indiana Int?l & Comp. Law Review,29, no. 1 (2019): p.122, 

https://journals.iupui.edu/index.php/iiclr/article/download/22943/22307/36138. 

39. Bina, p. 1247. 


40. Ibid. 


87


contractors and soldiers be referred to the U.S. Department laws available to prosecutors and victims seeking legal 

of Justice for criminal prosecution. 41 

redress and compensation from private military 

contractors, considering whether each could have been 

However, while twelve of the implicated U.S. soldiers 

applicable to the Abu Ghraib case. Given that exploring all 

have since been court-martialed or prosecuted via other 

of the opportunities and limitations presented by federal, 

military sanctions, none of the private contractors involved 

civil, as well international law would be too large a task for 

in the Abu Ghraib scandal have been found guilty. 

the length and scope of this paper, the analysis focuses on 

Multiple unsuccessful lawsuits have been filed on behalf 

three main strands of law: the local laws of the occupied 

of the victims. Saleh v. Titan (2011), filed in June 2004 by 

country, military law, and civil law. 

the Center for Constitutional Rights, had as plaintiffs more 

than 250 people who were caught up in the military raids 

in Iraq and detained in prisons controlled by the United 

?Home Nation?Law: Coalition Provisional Authority 

(CPA) Authority over Contractors 

States, including Abu Ghraib. 42 The suit charged that Titan 

When U.S. forces enter a foreign country, the United States 

and CACI violated international, federal, and state law by 

signs a Status of Forces Agreement (SOFA) with that 

?participating in a torture conspiracy, along with U.S. 

state. 45 The agreement delineates the rights and 

government personnel, that led to the rape and other acts of 

responsibilities between the sending state (the United 

torture, assault and killing of Iraqi detainees.? 43 After five 

States) and the receiving state as well as matters pertaining 

years of litigation, the Court of Appeals for the District of 

to the ?criminal and civil jurisdiction over sending state 

Columbia dismissed the case. In 2008, Al Shimari v. CACI 

personnel.? Importantly, it indicates who has prosecutorial 

International (2012) was brought before the Eastern 

authority over DoD employees if they commit wrongful 

District of Virginia on behalf of four ?hard site? victims of 

behavior in the foreign country. If a military member 

torture at Abu Ghraib prison. 44 Yet the case is still being 

commits an offense punishable under U.S. law, the United 

aired in court over a decade later, with the most recent 

States takes jurisdiction over the case and tries the 

hearing taking place in September 2021. The poor success 

individual under the ?Uniform Code of Military Justice,? 

record of the Abu Ghraib cases suggests that PMCs enjoy 

commonly resulting in a court martial. If a U.S. citizen 

a substantial degree of legal impunity relative to formal 

commits a crime against a receiving state?s citizen, then 

U.S. military forces? raising the question: how did this 

the foreign state typically has jurisdiction. 46 Crucially, 

phenomenon emerge? 

however, the receiving state must also have a sovereign 

Analysis: Criminal Accountability of PMCs 

legal and judicial structure in order to prosecute. Indeed, in 

a section entitled "Legal Jurisdiction over Armed Private 

The actions of private military contractors are governed by 

Security Contractors," the 2010 U.S. Joint Forces 

a complex array of U.S. laws. This section examines the 

38. Jessica Ayer, ?Military Extraterritorial Jurisdiction Act: International Implications and Prosecutorial Considerations,? Indiana Int?l & Comp. Law Review,29, no. 1 

(2019): p.122, https://journals.iupui.edu/index.php/iiclr/article/download/22943/22307/36138. 

39. Bina, p. 1247. 

40. Ibid. 

41. Ibid. 

42. ?Accountability for Torture by Private Military Contractors: Factsheet,? Center for Consitutional Rights, September 22, 2017, 

https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/accountability-torture-p rivate-military. 

43. Ibid. 

44. Ibid. 

45. Ayer, 122. 

46. Ibid. 


88

Command ?Handbook for Armed Private Security 

Contractors in Contingency Operations? outlines that 

?There are four ways that an individual contractor can be 

prosecuted for misconduct.? 47 The first clause reads: 

Where the HN [?home nation?] has a functioning legal 

infrastructure in place and in the absence of a SOFA 

that includes protections for DoD affiliated APSCs, the 

civil and criminal laws of the HN take precedence. If 

the HN waives jurisdiction, then US laws regarding 

criminal/ civil liability will have precedence. 48 

In the case of Iraq, while the U.S. military occupation 

commonly represented it as not having a ?functioning legal 

infrastructure,? it was also under U.S. occupation in a legal 

sense; Iraqi laws could not apply to private contractors. 

That is, following the United Nations?recognition of the 

U.S. and U.K. Constitutional Provisional Authority (CPA) 

as the occupying power in the country, CPA head Paul 

Bremer issued a decree granting foreign private contractors 

exemption from Iraqi law. Signed by Bremer in June 2004, 

?Coalition Provisional Authority Order 17? explained that 

contractors would not be subject to ?Iraqi laws or 

regulations in matters relating to the terms and conditions 

of their Contracts,? and that accordingly, contractors would 

be ?immune from Iraqi legal process with respect to acts 

performed by them pursuant to the terms and conditions of 

a Contract or any subcontract thereto.? 49 It moreover 

stipulated that nothing in the provision would prohibit 

?MNF ['multinational force?] Personnel from preventing 

acts of serious misconduct by Contractors, or otherwise 

temporarily detaining any Contractors who pose a risk of 


injury to themselves or others, pending expeditious 

turnover to the appropriate authorities of the Sending 

State.? 50 In all such circumstances, it suggested, ?the 

appropriate senior representative of the Contractor?s 

Sending State in Iraq shall be notified.? 51 

Notably, in using language referring to the ?prevention? of 

acts of misconduct and ?temporary? detention, the decree 

omitted explicit mention of legal action. It also precluded a 

description of how ?expeditious turnover? would be 

enforced. The extension of immunity it granted to private 

contractors from Iraqi law remained in force even after 

Iraq ratified its constitution in 2005. Indeed, until the 

termination of the U.N. mandate in December 2008, the 

CPA Order 17 remained in effect, and exempted all 

contractors from Iraqi laws while in the performance of 

their contracts. 52 An article published in the New York 

Times in 2007 referred to the fact that the Iraqi cabinet was 

in a ?hurry to correct the mistake? of the CPA order and 

was in the process of drafting legislation to revoke the 

decree. 53 

The cases brought forward on behalf of the victims of Abu 

Ghraib post-2008 have not sought redress under Iraqi law, 

potentially due to new SOFA between Iraq and the United 

States. 54 Ratified by the Iraqi parliament on November 27, 

2008, it granted Iraq ?the primary right to exercise 

jurisdiction over United States DoD contractors and United 

States DoD contractor employees.? 55 However, in being 

employed under a DOI contract, and not the DoD, CACI 

and Titan are not covered by this agreement, and hence fall 

47. ?Handbook for Armed Private Security Contractors in Contingency Operations,? U.S. Joint Forces Command, February 2010, 

https://www.jcs.mil/Portals/36/Documents/Doctrine/pams_hands/apsc_hbk.pdf. 

48. Ibid. 

49. Coalition Provisional Authority Order Number 17 (June 27, 2004) (revised), https://web.archive.org/web/20071005032102/http://www.cpa-iraq.org/regulations/20040627_CPAORD_1 

7_Status_of_Coalition__Rev__with_Annex_A.pdf. 

50. Ibid. 

51. Ibid. 

52. The CPA dissolved at the end of June, 2004, but orders issued by the CPA remain in place unless rescinded by the Iraqi Transitional Government, see: U.S. Library of Congress, 

Congressional Research Service, U.S. Treatment of Prisoners in Iraq: Selected Legal Issues, by Jennifer K. Elsea, RL32395 (2005), https://sgp.fas.org/crs/mideast/RL32395.pdf. 

53. ?Legal Loopholes in Iraq,? New York Times, November 5, 2007, https://www.nytimes.com/2007/11/05/opinion/05mon3.html. 

54. In September 2007, the Iraqi government began a process of overriding CPA Order 17 and subjecting contractors to Iraqi law. 

55. Darren McPherson, ?Are Iraq Contractors Subject to U.S. Law?,? Washington Independent, Dec 26, 2008, 

https://washingtonindependent.com/23037/are-iraq-contractors-subject-to-us-law/. 


89


outside the scope of Iraqi legal jurisdiction. 

Military Law: Uniform Code of Military Justice 

In 2007, the U.S. Congress expanded the jurisdictional 

scope of the UCMJ in an attempt to bring private 

contractors under its terms. Article 2(a)(10), UCMJ, grants 

military jurisdiction in ?time of declared war or a 

contingency operation? to ?persons serving with or 

accompanying an armed force in the field.? 56 Prior to this 

change, the UCMJ covered civilians serving with the 

Armed Forces in the field only in ?time of war," a phrase 

which courts have historically interpreted as meaning wars 

officially declared by Congress. 57 Scholars have argued 

that through this amendment, legislators implied the 

technical liability of PMCs under military law. In a 2010 

article published in the Yale Journal of International 

Affairs, Mitchell McNaylor even goes so far as to argue 

that the amendment is ?overbroad;? a ?problematic 

overcorrection? that ?potentially subjects United States 

civilians to military jurisdiction in situations short of 

declared wars.? 58 

However, the prosecution of civilians via court martial 

historically has been challenged on constitutional 

grounds. 59 Courts typically have been reluctant to place 

civilians under military jurisdiction. 60 In Reid v. Covert 

(1956), for instance, the Supreme Court rejected such a 

broad interpretation of the UCMJ. The defendant in the 

Covert case was the civilian wife of an Air Force sergeant, 

who had murdered her husband while they were living on 

a military base in the U.K. Although she was convicted 

and court-martialled under the UCMJ, the Supreme Court 

reversed her conviction, with the majority opinion calling 

it unconstitutional to court-martial civilians during 

peacetime. 61 In Kinsella v. United States ex rel. Singleton 

(1959), three years later, the Court went even further, 

specifically rejecting the trial by court martial of civilians 

for non-capital offenses. 62 

Even if subjecting civilian contractors to court-martial was 

held to be constitutional, Secretary of Defense Robert 

Gates? attempt to clarify the meaning of the UCMJ 

amendment led to confusion as to which individuals the 

UCMJ applies. In a 2008 memo outlining the process for 

bringing civilians before courts martial, Secretary Gates 

explains that, 

criminal infractions by employees of the Department 

of Defense or by civilians accompanying the armed 

forces shall be reported to the Department of Justice; if 

the Department of Justice will not proceed with 

56. Jennifer K. Elsea, ?U.S. Treatment of Prisoners in Iraq: Selected Legal Issues,? CRS Report for Congress, Congressional Research Service,May 

19, 2005, https://sgp.fas.org/crs/mideast/RL32395.pdf. 

57. Ibid., 19. 

58. Mitchell McNaylor, ?Mind the ?Gap?: Private Military Companies and the Rule of Law,? Yale Journal of International Affairs 5, no. 2 

(Spring/Summer 2010): https://www.yalejournal.org/publications/mind-the-gap-private-military-companies-and-the-rule-of-law. 

59. U.S. Library of Congress, Congressional Research Service, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, by 

Jennifer K. Elsea, Moshe Schwartz, and Kennon H. Nakamura, RL32419 (2008), https://sgp.fas.org/crs/natsec/RL32419.pdf. 

60. See Reid v. Covert, 354 U.S. 1, 21 (1957) (?Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, 

more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.?); O?Callahan v. Parker, 395 U.S. 

258, 267 (1969)(?[C]ourts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the 

connection between their offense and the concerns of military discipline.?). 

61. John S. Kemp, ?Private Military Firms and Responses to Their Accountability Gap,? Washington University Journal of Law & Policy 32, no. 1 

(January 2010): 493, https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1088&context=law_journal_law_policy. 

62. Ibid., 502. 


90

prosecution, certain military commanders with the 

proper authority can, with exception, refer the civilian 

to a court martial. 63 

Gates uses different language from the UCMJ when 

describing which civilians are liable to a court martial. 

Whereas the updated UCMJ uses briefer and more 

sweeping language, describing ?persons? who accompany 

the Armed Forces, the Gates memo appears to assume that 

only DoD employees and contractors could be subject to 

the UCMJ. This ambiguity as to whom the law pertains 

suggests a substantial obstacle in its application. 

Furthermore, establishing whether a contractor is liable to 

prosecution under the UCMJ requires determining whether 

they were ?serving with or accompanying an armed force? 

that is operating ?in the field.? 64 As a 2010 report by the 

Congressional Research Service noted, ?in the field? is 

defined as ?in an area of actual fighting? at or near the 

?battlefront? where ?actual hostilities are underway.? 65 

Whether or not a contractor is ?in the field? is thus 

?determined by the activity in which [they are] engaged at 

any particular time, not the locality where [they are] 

found.? 66 

Consequently, the report points out that 

contractors may not be under the authority of military 

jurisdiction ?simply because of their employment in Iraq 

or Afghanistan.? 67 

In light of these observations, it is perhaps unsurprising 

that only one private contractor has actually been tried for 

misconduct under the expanded UCMJ. 68 Likewise, it 

seems unlikely that courts will be willing, as Jordon writes, 


to take the ?slippery slope? of applying military law to 

civilians involved with military operations. 69 With the 

constitutional question yet to be entertained, and who 

constitutes applicable PMCs undefined, the potential for a 

legal loophole remained even after the UCMJ was 

amended. 

Military Law: Military Extraterritorial Jurisdiction Act 

With the intention of filling the jurisdictional gap left by 

the UCMJ, the Military Extraterritorial Jurisdiction Act 

(MEJA) was issued in 2000. Individuals who are 

?employed by or accompanying the armed forces? abroad 

may be prosecuted under the MEJA ?for any offense that 

would be punishable by imprisonment for more than one 

year if committed within the special maritime and 

territorial jurisdiction of the United States.? 70 71 An 

amendment to the MEJA issued in October 2004, the 

National Defense Authorization Act, expanded the scope 

of MEJA over civilian contractors and employees from 

other federal bodies and ?any provisional authority?(such 

as the CPA), so long as their employment was related to 

the support of a DoD mission abroad. 

Nevertheless, the private contractors at Abu Ghraib could 

not be technically prosecuted under the MEJA in 2003, as 

at the time, the Act suffered from the same loophole 

created by the 2004 United States-Iraq SOFA. That is, it 

only pertained to PMCs directly hired by the DoD and thus 

would not apply to CACI or Titan. Scholars have noted 

that the expanded form of the MEJA could have been 

63. Ibid., 506. 

64. Elsea et al., 19. 

65. Ibid., 18. 

66. Ibid., 19. 

67. Ibid., 20. 

68. Kemp, 506. 

69. Craig S. Jordon, ?Who Will Guard the Guards? The Accountability of Private Military Contractors in Areas of Armed Conflict.? New England Journal on Criminal 

and Civil Confinement 35 (2009): 309-336. 

70. Elsea et al., 18. 

71. Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3267 (2000). 


91


applicable to the Abu Ghraib case; Titan and CACI did the Alien Torts Claims Act (or Alien Torts Statute, ATS). 

indeed fall under the expanded umbrella of provisional 

First adopted in 1789, the ATS grants that ?district courts 

authority. However, the 2004 MEJA still did not provide 

shall have original jurisdiction of any civil action by an 

guidance as to how courts should interpret whether 

alien for a tort only, committed in violation of the law of 

contractors are acting ?in support? of DoD missions, and 

nations or a treaty of the United States.? 76 The ATS 

furthermore, could not be used retroactively. 72 

For these reasons, McNaylor points out, the MEJA has 

rarely been used to prosecute crimes that happened during 

the War on Terror or the Iraq War, even if they involved 

DoD contractors. 73 In fact, according to a 2007 New York 

Times report, under the law adopted in 2000, only two 

criminal cases had originated in Iraq, one involving a 

contractor accused of possessing child pornography, and 

another accused of rape. In the rape case, ?both the 

reported victim and the accused were Americans. 74 The 

definitional ambiguities of the MEJA and the lack of its 

implementation by the U.S. government thus suggest its 

limited ability to hold PMCs accountable for human rights 

abuses. 

Shifting from Criminal to Civil Liability: Alien Torts Act 

remained dormant for nearly two centuries until it was 

rediscovered in 1980 through the case of Filartiga v. 

Pena-Irala (1980). In the landmark case, the plaintiff, Dr. 

Filartiga, charged Pena-Irala, a Paraguayan national who 

was then residing in the United States, with the torture and 

murder of his son in Paraguay four years prior. The court 

found that ?an act of torture committed by a state official 

against one held in detention violates established norms of 

the international law of human rights, and hence the law of 

nations.? 77 The Filartiga ruling set a precedent for the use 

of the ATS as a means of settling human rights abuses 

against foreigners within U.S. district courts. Building 

upon the Filartiga ruling, Sosa v. Alvarez-Machain (2004) 

raised the question of whether liability under the ATS 

could be restricted to cases of ?extraterritorial tortious 

conduct.? 

Absent the opportunity for a criminal case to be put against 

In doing so, it also created an opportunity for 

the prosecution of PMCs in cases such as the Abu Ghraib 

CACI and Titan under Iraqi or U.S. law, the Center for 

scandal. 

Constitutional Rights (CCR) filed a civil lawsuit in 2004 in 

federal court on behalf of those who had been abused at In Sosa, a Mexican doctor, Dr. Humberto 

Abu Ghraib. The case, Saleh et al. v. Titan et al. (2011), 

charged ?CACI International, Inc. and Titan Corporation 

with violations of state, federal, and international law, 

Alvarez-Machain, who had been forcibly abducted from 

his office in Guadelajara and charged for his alleged role in 

the torture of a Drug Enforcement Agency (DEA) 

including torture; cruel, inhuman, or degrading employee, sued civilly against Jose Francisco Sosa, a 

treatment.? 75 An integral element of the case was its use of bounty hunter hired by the DEA. 79 The District Court 

72. Valerie Sperling, Altered States: The Globalization of Accountability, (Cambridge: Cambridge University Press, 2009), 181-188. 

73. McNaylor, 321. 

74. Ibid; David M. Herszenhorn, ?House?s Iraq Bill Applies U.S. Law to Contractors,? New York Times, October 5, 2007, 

https://www.nytimes.com/2007/10/05/washington/05cong.html. 

75. ?Saleh, et al. v. Titan, et al.,? Center for Constitutional Rights, https://ccrjustice.org/home/what-we-do/our-cases/saleh-et-al-v-titan-et-al. 

76. Scott J. Borrowman, ?Sosa v. Alvarez-Machain and Abu Ghraib--Civil Remedies for Victims of Extraterritorial Torts by U.S. Military Personnel 

and Civilian Contractors,? Brigham Young University Law Review 2005, no. 2 (May 2005): 371-425, 

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2231& context=lawreview. 

77. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 

78. Ibid. 


92

awarded Alvarez summary judgment and damages on his 

ATS claim, holding that the ATS applies only to violations 

of international norms that are ?specific, universal, and 

obligatory.? 80 Hence, as articulated in the order dismissing 

Saleh v. Titan, in Sosa ?the Court opened the door to the 

possible recognition of new causes of action under 

international law (such as, perhaps, torture) if they were 

firmly grounded on an international consensus.? 81 

Many have argued that Sosa should allow a cause of action 

for the prosecution of PMCs under the ATS ?because there 

is broad, clear international consensus that torture and 

abuse of prisoners is unlawful.? 82 However, it has thus far 

failed to successfully support the cases filed on behalf of 

the Abu Ghraib victims. This is highlighted by the 

dismissal order of the court in Saleh v. Titan: 

The Sosa Court . . . expressed the imperative of 

judicial restraint. It was pointed out that federal courts 

today? as opposed to colonial times? are and must be 

reluctant to look to the common law, including 

international law, in derogation of the acknowledged 

role of legislatures in making policy . . . in light of the 

holding in Sosa, we have little difficulty in affirming 

the district judge?s dismissal of the ATS claim against 

Titan. 83 

The above quote demonstrates the importance of clear 

definitions of ?torture? and ?abuse? in advancing the cases 

put forward by victims of PMC misconduct; the absence of 

which, according to the Court, jeopardizes the 

effectiveness of the ATS as a means of prosecution. When 

CCR put forward another case on behalf of the Abu Ghraib 

victims, Al Shimari v. CACI, in 2008, it was careful to 


clarify this aspect of its argument. However, the strength of 

this ongoing lawsuit has also suffered as a result of cases 

that have limited the extraterritorial scope of the ATS. 

Indeed, CACI referenced such precedents in its appeal to 

dismiss Al Shimari v. CACI: 

In Kiobel v. Dutch Petroleum, the Supreme Court 

recognized that claims could be actionable under the 

ATS where they ?touch and concern the territory of the 

United States . . . with sufficient force to displace the 

presumption against extraterritorial application? . . . as 

any third-grader can confirm, Iraq is not ?in the United 

States.? 84 

While the tone of CACI?s appeal is clearly one of 

condescension, it nevertheless makes clear another of the 

major challenges when seeking redress under the banner of 

the ATS: establishing that there is a significant domestic 

nexus in the allegations presented. Thus, while the ATS 

following Sosa could in theory provide an effective course 

of action for strengthening the accountability of PMCs 

before the law, it applies to an increasingly narrow number 

of circumstances. Successful leverage of the ATS to 

prosecute PMCs, I contend, might even require a new, 

precedent-setting case that would reverse the territorial 

restrictions set by cases such Kiobel v. Dutch Petroleum 

(2013). 

Conclusion 

In his lecture ?Politics as a Vocation,? German sociologist 

Max Weber famously defined the state as owning a 

monopoly over the legitimate use of violence. This paper 

suggests otherwise. he proliferation of private military 

contractors in the aftermath of the Cold War has raised 

79. Borrowman, 374 . 

80. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004). 

81. Appeal of U.S. District Court of Columbia, Case: 08-7008 Document: 1205678 Filed: 09/11/2009, 

https://ccrjustice.org/sites/default/files/assets/Titan_Decision%209%2011%2009.pdf., 

82. Borrowman, 424. 

83. Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009). 

84. ?Defendant CACI Inc.?s reply in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction,? Shimari v. CACI, U.S. District Court for 

the Eastern District of Virginia, https://ccrjustice.org/sites/default/files/attach/2021/09/1346_9-2-21_CACI-reply-MTD_w.pdf, 16. 


93


significant legal issues of accountability and responsibility. 

By contracting out services to private actors, the United 

States military outsources, whether consciously or 

unconsciously, its liability for human rights abuses. The 

corporate soldiers it contracts with are subject to a 

patchwork of military and civil laws, yet each of these is 

fraught with multiple exceptions. The result of these edge 

cases is that PMCs, in a large number of instances, are able 

to act with impunity: in reference to Weber, their 

?violence? is contractually legitimate but stands outside 

the legal governance of the state. In the case of the Abu 

Ghraib prison scandal, Iraqi courts could not be used to 

prosecute implicated CACI and Titan Corp employees, as 

CPA Order 17 immunized contractors from Iraqi law. 

While the reformed UCMJ initially appeared promising in 

its extension of military jurisdiction over contractors in 

?undeclared? wars, it was weakened by definitional and 

constitutional ambiguities that have made it an unpopular 

course of action. The MEJA, meanwhile, does not extend 

to PMCs that are hired by non-DoD agencies, and as such 

could not be used to prosecute CACI or Titan. One 

potential avenue for civil litigation against PMCs is the use 

of the ATS, with its specific provisions for acts of torture 

against detainees. However, as past and ongoing court 

cases raised on behalf of the victims of Abu Ghraib have 

shown, the successful implementation of the ATS is 

extremely challenging given that its territorial scope has 

become increasingly restricted. 

In the absence of stricter domestic and international 

regulation of PMCs, these exceptions indicate that PMCs 

may continue to occupy a space of legal exceptionalism. 

We may see another Abu Ghraib, a reprise of the ironic 

image of the liberator engaging in acts of torture, should 

the norms and laws governing private contractors remain 

weak. 


94

RACE AS THE RIGHT TO 

SELF-DEFENSE: 

THE LEGAL HISTORY INVOKED BY 

NEW YORK STATE RIFLE & PISTOL 

ASSOCIATION V. BRUEN 


ABSTRACT 

The Second Amendment debate is all too familiar to most Americans, but the story is far more complicated and far more 

racialized than most modern scholarship acknowledges. Armed Black militias are not new, nor do they fall outside the 

bounds of the Second Amendment. Yet armed Black people and Black militias like the Black Panther Party (BPP) and 

Not Fucking Around Coalition (NFAC) have been denounced as radical and violent when invoking this right. White 

militias have not historically faced this same legal and popular resistance despite causing more harm, most often for Black 

communities. This paper will trace the history of the Second Amendment, through its foundation in racist laws and 

discriminatory court decisions like Dred Scott v. Sandford (1857) and the Black Codes, the state-sanctioned arming of 

Black men at war while denying them the right to arms at home, and the many murders of Black Americans by white 

people justified as self-defense. Finally, this paper will consider New York State Rifle & Pistol Association v. Bruen 

(2021), which asks the Supreme Court to determine the constitutionality of a New York state law that requires gun permit 

applicants to provide an ?actual and articulable? and ?proper cause? for concealed carry. I will consider the following 

question: Could the racist history of the Second Amendment make race an ?actual and articulable? claim to self-defense? 


95

Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen 

Introduction 

new, though they are less numerous than those organized 

by white men. As Johnson argues, Black militias fall 

In October 2020, two shots sounded at a protest in 

within the boundaries of the Second Amendment, which 

Lafayette, Louisiana that was organized after police 

reads: ?A well regulated Militia, being necessary to the 

murdered 31-year-old Trayford Pellerin. Protesters were 

security of a free State, the right of the people to keep and 

unsure who fired the shots, as standing among them was 

bear Arms, shall not be infringed.? 4 Although the 

the Not Fucking Around Coalition (NFAC), an armed 

definition has been a contentious topic, this paper will use 

Black militia. The incident attracted criticism as someone 

militia to refer to any group of usually armed individuals 

had accidentally discharged a weapon during an NFAC 

working toward a common cause, such as defense of the 

rally once before. NFAC, founded in 2017 in Atlanta by 

self or of the nation, whether that be a state or federal 

John Fitzgerald Johnson, also marched in Brunswick, 

infantry or a civilian army like NFAC. Further, it will focus 

Georgia for Ahmaud Arbery, and Louisville, Kentucky for 

more on the right to bear arms as it pertains to individuals 

Breonna Taylor. 1 Following the protests in the summer of rather than militias, due to the historical exclusion of 

2020, predominantly inspired by the murder of George Black men from militias. So why have armed Black people 

Floyd and other Black civilians, NFAC saw a steady and Black militias like the Black Panther Party and NFAC 

increase in its numbers. 2 According to Johnson, NFAC been denounced as radical and violent when they invoke 

consists of U.S. citizens ?exercising [their] constitutional this right to a ?well-regulated Militia? and ?to keep and 

rights and the color of [their] skin shouldn?t make any bear Arms?? Individual states have always taken different 

difference.? Also speaking to CNN, Thomas Mockaitis, a 

approaches to gun regulation and private militias. 

Nowhere, however, have their stances been more 

historian at DePaul University, explained that ?[i]n one 

inconsistent than regarding Black people. 

sense [NFAC] echoes the Black Panthers. . . So far, they?ve 

coordinated with police and avoided engaging with This paper will investigate several key historical events, 

violence.? But ?[t]he White militia movement . . . has including the Colfax Massacre of 1873, Red Summer of 

many more people and it has been violent.? 3 

1919, and Tulsa Race Massacre of 1921, in the context of 

the legal history of the treatment of Black Americans 

The Second Amendment debate is increasingly prominent 

under the Second Amendment, the state weaponization of 

in the current legal and political discourse of the United 

Black men, the unconstitutional denial of the Second 

States. Generally speaking, one side argues for the need to 

Amendment to Black men, and Black arms advocacy. It 

protect and uphold the Second Amendment as a 

will demonstrate that white militias have not faced the 

fundamental American principle, whereas the other fights 

legal and popular resistance that Black militias did despite 

for increased gun regulation legislation to prevent deaths 

causing far more harm. This reality rests in a legacy of 

caused by armed violence. But groups like NFAC 

slavery and falsified history, which produced racist laws 

demonstrate that the story is far more complicated and far 

and discriminatory court decisions like Dred Scott v. 

more racialized than most modern scholarship 

Sandford (1857) and the Black Codes. The state armed 

acknowledges. Armed Black militias are not something 

Black men, such as during the Civil War and World War I, 

1. Nicole Chavez, Ryan Young, and Angela Barajas, ?An all-Black group is arming itself and demanding change. They are the NFAC,? CNN, October 25, 2020, 

https://www.cnn.com/2020/10/25/us/nfac-black-armed-group/index.html. 

2. Michael T. Heaney, ?Protest at the Center of American Politics,? Journal of International Affairs 73, no. 2 (Spring/Summer 2020): 195. 

3. Chavez, Young, and Barajas. 

4. U.S. Const. Amend. II. 


96


yet declined to extend the right to keep and carry into their crimes committed on the basis of race, color, religion, 

daily lives, though it was guaranteed to their white national origin, sexual orientation, gender, gender identity, 

counterparts. Along with having their access to arms or disability.? 7 Can these legal concepts concerning 

undermined by the state? an unconstitutional infringement specific groups of people extend to self-defense? And if 

of rights by definition? Black Americans were murdered they can, could that make race an ?actual and articulable? 

by white men in acts of violence justified as self-defense, quality, allowing Black people, as a protected class, to 

ensuring Black people suffered the most consequences and carry arms in spaces in which white people cannot? 

fewest benefits of the Second Amendment. Whereas white 

Black people have possessed a distinct claim to 

people thought of self-defense as more of an individual 

self-defense and militias that differed from and often 

right, Black people defended themselves as a combined 

outweighed that of white people. This is demonstrated by 

?self? within a historically meaningful collective. White 

the falsified legal history of the Second Amendment that 

men enjoyed unrestricted access to their Second 

allowed armed white civilians and state actors to target 

Amendment, while Black men bore the strain of undue 

Black people, the state weaponization of arming Black 

oversight. Though all Black people are targeted by white 

men, the unconstitutionality of denying Black self-defense 

bearers of arms, this paper will focus on Black men, as 

and militias, and arms advocacy by Black people. Rather 

women have generally been barred from gun ownership in 

than revolution, this is reclamation. As such, I will delve 

U.S. history. 5 

into this history, tracing the Second Amendment and its 

In 2021, New York State Rifle & Pistol Association v. relationship to Black men from the American Revolution 

Bruen, originally v. Corlett, reached the Supreme Court. to the NFAC, in pursuit of the question raised by New York 

The case asks the Supreme Court to determine whether a State Rifle & Pistol Association v. Bruen: whether race can 

New York state law, which requires applicants for gun qualify as ?actual and articulable? when it comes to 

permits to provide an ?actual and articulable? and ?proper dictating who may or may not carry arms in public spaces. 

cause? for concealed carry in the name of self-defense, 

The Legal Lies in Denying Arms to Black Americans 

should stand. 6 While petitioners raise this issue as a matter 

of restricting the Second Amendment and not one of race, 

The denial of the Second Amendment to and vilification of 

the Joint Appendix on this Supreme Court case invokes 

armed Black Americans grew from a falsified legal history 

race and racism a few times to argue that restricting 

rooted in slavery and anti-Black racism, demonstrating the 

self-defense contributes to this racist history. But in doing 

need for self-defense for Black people. In 1846, a 

so, it raises entirely different questions: What is a ?proper 

formerly enslaved man named Dred Scott filed suit for his 

cause,? and do certain people have more claim to it? 

freedom in the case later known as Dred Scott v. Sandford, 

Protected group legislation identifies specific categories of 

in which the Supreme Court ruled that Black people could 

people with special protection under the law, particularly 

not be citizens. One of the reasons given for this by Justice 

in terms of employment. The Department of Justice 

Taney, the author of the majority opinion, was that Black 

?enforces federal hate crimes laws that cover certain 

people would as a consequence earn the ability ?to keep 

5. This trend continues to this day; in 2017, the Pew Research Center found that about ?six-in-ten gun owners in the United States are male (62%)? compared to 

?one-in-five women (22%).? See: Juliana Menasce Horowitz, ?How male and female gun owners in the U.S. compare,? Pew Research Center, June 29, 2017, 

https://www.pewresearch.org/fact-tank/2017/06/29/how-male-and-female-gun-owners-in-the-u-s-compare/. 

6. Ryan Baldwin and Emily Gust, ?New York State Rifle & Pistol Association Inc. v. Bruen,? Legal Information Institute at Cornell University, accessed February 1, 

2022, https://www.law.cornell.edu/supct/cert/20-843; Adam Liptak, ?Supreme Court to Hear Case on Carrying Guns in Public,? New York Times, April 26, 2021, 

https://www.nytimes.com/2021/04/26/us/supreme-court-gun.html. 

7. ?Federal Laws and Statutes,? The United States Department of Justice, January 13, 2022, https://www.justice.gov/hatecrimes/laws-and-policies. 

8. Dred Scott v. Sandford, 60 U.S. 417 (1857). 


97


and carry arms wherever they went.? 8 Second Amendment 

here not only incorporated it into the American concepts of 

citizenship and personhood, but it also indicated that the 

government, or at least the Supreme Court, recognized the 

threat to white supremacy that allowing Black people to 

bear arms posed. It provided a means through which they 

could defend themselves, implying that the Court adopted 

a falsified narrative in defense of white elitism. Indeed, 

Justice Taney?s opinion was riddled with falsities, such as 

the claim that when slavery first existed in the United 

States, no one ?seems to have doubted the correctness of 

the prevailing opinion of the time.? 9 This statement 

completely ignores that virtually every enslaved Black 

person as well as white abolitionists ?doubted the 

correctness? of slavery, and it is just one of the lies that 

shaped Justice Taney?s decision and had long-lasting 

the legal relationship he wanted, rather than the one that 

should prevail between Black men and arms. The dissents 

by Justice McLean and Justice Curtis confirm that the 

ideas promulgated by Justice Taney were lies: Justice 

McLean reminds readers that via ?treaty with Mexico, we 

have made citizens of all grades, combinations, and colors. 

The same was done in the admission of Louisiana and 

Florida.? 12 That Taney?s fellow justices saw his lies for 

what they were underscores the falsities upon which the 

treatment of Black men under the Second Amendment 

stands? a foundation with recurring consequences for the 

lives and security of Black Americans. Even after the 

passage of the Fourteenth Amendment in 1868 overruled 

the Dred Scott decision, the deadly impact of the lies 

introduced to the American legal canon by Dred Scott 

reinforces the distinct claim to self-defense that Black 

consequences for the application of the Second people have. According to a report from the House of 

Amendment. 

Representatives, on Easter Sunday, 1873, following an 

electoral dispute in Colfax, Louisiana, a defeated and 

In his opinion, Justice Taney also argued that Black people 

angered Democratic militia of over 300 armed white 

do not deserve citizenship because they were not among 

men? many of them members of the Knights of White 

the colonists who fought against British rule, and the Court 

Camellia and the Ku Klux Klan (KKK)? attacked a group 

must ?inquire? as to ?who declared their independence and 

of Black Republicans defending the town?s courthouse, 

assumed the powers of Government to defend their rights 

demanding they drop their arms, resulting in some of the 

by force of arms? when considering who qualified as a 

citizen. 10 Black militiamen fleeing and ?leaving their arms. . . . 

There exist many contradictions in this claim: not 

Many of them were overtaken and shot to death . . . When 

only did Black men fight in the Revolutionary War, but 

the roof was burning over their heads. . . . A number of 

most Black people in the United States at the time lived in 

them rushed unarmed [from the building] but were all 

slavery, as Justice Taney acknowledged elsewhere in his 

opinion. 11 captured.? 

This prohibited them from fighting for 

Along with being a cruel attack on peacefully 

assembled Black people, the Colfax Massacre provides an 

independence using arms, because, as Justice Taney also 

example of the racialization of the Second Amendment: an 

stated, they did not have the right to them. These logical 

armed and violent white supremacist militia descended on 

fallacies underscore the false and self-serving narrative 

a town, while a peacefully-assembled group of Black men 

that Justice Taney knowingly crafted to provide a basis for 

dropped their arms, despite only carrying them as allowed 

9. Ibid., 60 U.S. at 408. 

10. Ibid., 60 U.S. at 407. 

11. LaGarrett J. King and Jason Williamson, ?The African Americans?Revolution: Black Patriots, Black Founders, and the Concept of Interest Convergence,? Black 

History Bulletin 82, no. 1 (Spring 2019): 10. 

12. Dred Scott, 60 U.S. at 533. 

13. ?Condition of the South,? Reports of Committees of the House of Representatives for the Second Session of the Forty-Third Congress, no. 261 (Washington D.C.: 

U.S. Printing Office, 1875), 11?14. 


98


following the Fourteenth Amendment and at the request of 

the Republican government. 

This massacre, formerly known as the Colfax Riot, resulted 

in the deaths of around 150 Black men, compared to three 

white deaths. The white militia captured and disarmed 

most of these Black men hours before killing them, long 

after the rioting ceased. 14 Such overtly racially-targeted 

violence could not possibly fall under the Second 

Amendment protections of self-defense; meanwhile, the 

many Black men killed were robbed of their legitimate 

claim to the right when they needed it most. In the 

subsequent United States v. Cruikshank (1876), the Court 

dropped the convictions of the white men responsible, 

arguing in the majority opinion written by Chief Justice 

Waite that the Fourteenth Amendment did not protect 

against violence committed by individuals and the First 

Amendment rights to assembly and petition were ?not 

intended to limit the powers of the State governments? but 

to ?operate on the National government alone.? 15 By 

upholding the white militia?s abuse of the Second 

Amendment, itself a violation of the Black militia?s Second 

Fourteenth Amendment.? 17 Moreover, the majority opinion 

in McDonald v. City of Chicago (2010), written by Justice 

Alito, explicitly referenced Cruikshank, describing it as 

?not a precedent entitled to any respect.? 18 

Decades later, in 1921, a similar mishandling of justice by 

the courts concerning arms occurred in Tulsa, Oklahoma, 

setting an equally false precedent, in the aftermath of the 

Tulsa Race Massacre. In response to what white people and 

state actors in Tulsa deemed a ?negro uprising,? the Tulsa 

Police Department deputized hundreds of white men, 

resulting in many armed and unarmed Black people being 

murdered or taken into custody, their homes in the once 

affluent neighborhood of Greenwood looted and burned. 19 

Black people suffered despite engaging in legal possession 

of arms while white men were actively encouraged and 

empowered by the state to use guns violently and illegally. 

Even with hundreds of Greenwood residents dead or 

homeless, Oklahoma courts still denied Black Tulsans 

redress and, according to the Tulsa World, blamed them for 

the violence and exonerated the white men. 20 As the Tulsa 

World?s headline shows, the courts contributed to the lies 

Amendment, and codifying intentionally narrow defining the relationship between Black people and the 

interpretations of the Fourteenth and First Amendments, 

the Court set a precedent for a treatment of armed Black 

people riddled with lies. Akhil Amar, an American legal 

scholar, explains that the Second Amendment was ?closely 

linked? to the ?guarantees of assembly and petition,? 

emphasizing how the unfounded claims of Justice Waite 

constituted an attack against the Black right to 

self-defense. 16 Fellow legal scholars Robert Cottrol and 

Raymond Diamond also weigh in, describing the case as a 

?serious blow to Congress? ability to enforce the 

Second Amendment by again validating a false conviction 

that targeted Black men who appropriately exercised their 

rights, and affirming the extralegal behavior of white men. 

Like the Colfax Riot, this massacre also received the title 

of the Tulsa Race Riots, an intentional misnomer implying 

that Black people used unnecessary violence while 

justifying white people who actually did engage in illegal 

brutality. The denial of Second Amendment rights to Black 

Americans continued through World War II to the Civil 

Rights Era, which brought with it a resurgence of arms 

14. Ibid. 

15. United States v. Cruikshank, 92 U.S. 542 (1876). 

16. Akhil Reed Amar, The Bill of Rights (New Haven: Yale University Press, 2008), 47. 

17. Robert J. Cottrol and Raymond Diamond, ?The Second Amendment: Toward an Afro-Americanist Reconsideration,? The Georgetown Law Journal 80, no. 309 

(1991): 347. 

18. McDonald v. City of Chicago, 177 U.S. 742, 855 (2010). 

19. Alfred L. Brophy, Reconstructing the Dreamland The Tulsa Riot of 1921: Race, Reparations, and Reconciliation (Oxford: Oxford University Press, 2003), 22. 

20. Ibid., 137, 158. 


99


advocacy among Black liberation groups. In 1966, the 

Black Panther Party created a Ten-Point Program as its 

platform per the supposed guarantees of the Second 

Amendment. The seventh point explicitly invoked the 

Second Amendment to argue for the group?s right to bear 

arms. 21 Including this direct reference to the Second 

Amendment stood as proof of the legality of Panther 

advocacy for Black people to bear arms in self-defense. 

Yet Vice President Spiro Agnew, serving from 1969 until 

resigning in 1973, called the Black Panther Party a 

?completely irresponsible anarchistic group of 

criminals.? 22 The terms ?anarchistic? and ?criminals? are 

not only overly generalizing and largely inaccurate, but 

they also expose the overall baseless targets that the law 

and the state made of Black people who carried. The 

Director of the FBI, J. Edgar Hoover, dubbed the Black 

Panthers the ?number one threat to the security of the 

United States.? 23 The FBI?s hyper-fixation on the Black 

Panthers reflected the distortion of facts that contributed to 

the inaccurate portrayal of the party and the lawful use of 

arms by Black people in general. The deadly consequences 

of such rhetoric only further validate the Black claim to 

self-defense. 

If most of the Black Panthers? arms-related actions 

operated within the law, particularly the Second 

Amendment, why did the state label them ?criminals? and 

?threat[s]?? Why were white supremacist groups not 

subjected to the same denunciations? Does this not 

counteract the philosophy of equal treatment before the 

law upon which the U.S. government stands? On May 10, 

1865, Frederick Douglass delivered an address in New 

York City in which he warned that, if the nation did not 

outright require that the Bill of Rights also apply to the 

states, state legislatures might scheme to ?take from [free 

Black people] the right to keep and bear arms.? 24 In 

February 1866, U.S. Congressmen including Senator 

James Nye and Representative Roswell Hart echoed these 

sentiments, conceding that Congress could not infringe 

upon states?rights, but arguing that it could, and should, 

require that states uphold all protections specified in the 

Bill of Rights. 25 However, federal and state governments 

continued to legislate and execute the law in confirmation 

of the fears Douglass harbored. 

The State Weaponization of Arming Black Men 

The significance of the self-defense claim for Black men 

also manifests in how the US government armed and 

weaponized Black men in defense of the nation but robbed 

them of this right for themselves, demonstrating both the 

racist denial of the right and Black men?s comparatively 

urgent need for it. After the passage of the Second 

Amendment in 1791, the federal government passed the 

Uniform Militia Act of 1792, which ?called for the 

enrollment of every free, able-bodied white male citizen 

between the ages of eighteen and forty-five? in the 

militia. 26 This bill ensured that open militia enrollment on 

the local level would apply only to white men, restricting 

Black people?s enrollment to racist federal whims that 

forced Black people to serve for a nation that did not serve 

them. Further, as Cottrol and Diamond surmise, ?An armed 

white population was also essential to maintain social 

control over blacks.? 27 Excluding Black people from arms 

and militias was just as much about controlling them as 

preventing access, revealing how the U.S. government 

manipulated and weaponized the Second Amendment and 

its relationship to Black men and, in many ways, created 

their need for self-defense. 

21. ?The Black Panther Party Ten-Point Program,? Black Past, October 15, 1966, 

https://www.blackpast.org/african-american-history/primary-documents-african-american-history/black-panther-party-ten-point-program-1966/. 

22. American Civil Liberties Union, "News Release," in The Black Panthers Speak, ed. P. S. Foner (New York: J. B. Lippincott, 1969), 263-265. 

23. Ibid. 

24. Frederick Douglass, ?In What New Skin Will the Old Snake Come Forth?? (address, New York, NY, May 10, 1865). 

25. Amar, 192. 

26. Second Militia Act, 1 U.S.C. § 33 (1792). 

27. Cottrol and Diamond, 324. 


100


On March 23, 1865, faced with a losing war and dwindling lives. Primarily in the South, white veterans could 

numbers, the Confederacy voted to ?ask for and accept purchase the army-issued rifles they fought with, but many 

from the owners of slaves, the services of . . . able-bodied Black soldiers were prohibited from keeping theirs out of a 

negro men . . . for and during the war, to perform military fear that ?armed Africans,? amidst a diminished, post-Civil 

service.? 28 Since the Confederacy primarily fought the War white population, would become ?masters of the 

Civil War to preserve slavery, this order allowed the situation.? 31 This language calls to mind the words of 

Confederacy to use Black men to secure a victory that Justice Taney in Dred Scott and indicates how the state 

would result in their continued enslavement, expanding treated Black people as unworthy of self-defense. In 

their access to arms and militias only so far as would Louisiana, General Canby, directed by Ulysses S. Grant, 

enable said access to then be forever denied. Meanwhile, forbade discharged Black Union soldiers from purchasing 

by 1862, southern Louisiana Union troops consisted of the arms with which they fought. 32 Though the treatment 

?Native Guard? regiments, which included free Black men of Black men and their access to self-defense differed on a 

and ranking officers of color, until General Nathaniel P. state-by-state basis, this decision made by the Union 

Banks forced most of these men to resign, though a group emphasizes the nationwide use and abuse of Black men 

of them requested Banks to reconsider. 29 In mercilessly and their Second Amendment rights. Black men were 

ousting Black soldiers, Banks exemplifies how even the armed for a state that declined to extend the right to 

state under the Union gave arms Black men only to treat self-defense, even after forcing them to fight in a war 

them as weapons under its control, giving and taking arms based upon whether they should be enslaved. 33 Such 

with no regard for the individual right to and need for hypocrisy bespeaks the urgent claim to self-defense that 

self-defense of Black soldiers. Further, upon emancipation Black men in particular had, even against the state itself. 

in 1863, one of the first actions of the Lincoln But even after the passage of the Fourteenth Amendment 

administration was to encourage Black men to join the war granted citizenship status to Black Americans, including 

effort, such as in a notice titled, ?To Colored Men! all the rights protected by said status, the state practice of 

Freedom, Pay, and a Call to Military Duty!? 30 This jump arming and weaponizing Black men without ensuring them 

from emancipation to military service indicates how the personal access in peacetime persisted. During the Red 

state weaponized Black men by arming them on the Summer, a period in 1919 when white supremacist 

battlefield, but did not grant them the protections of terrorism ran rampant throughout major cities in the cities 

citizenship and disrespected their Second Amendment in the United States, Black World War I soldiers and 

rights once off of it. 

veterans were frequent targets. That August, in Eastman, 

Georgia, a news clipping described a Black soldier being 

After the Civil War, the same government that forced 

severely whipped by a mob of white men because, as the 

Black men to take up arms in defense of the nation denied 

byline reads, ?He Had Been Talking Too Much Since 

Black soldiers the ability to exercise this right in their own 

28. An Act to Increase the Military Force of the Confederate States, General?s Orders. 14, Adjunct and Inspector General?s Office, (March 23, 1865). 

29. Adolph J. Gla et al. to Major General N. P. Banks, April 7, 1863, G-35 l863, series l920, Civil Affairs, Department of the Gulf, U.S. Army Continental Commands, 

Record Group 393 Pt. 1, National Archives. 

30. Poster from War Department, ?To Colored Men! Freedom, Pay, and a Call to Military Duty!,? 1863, D135-CT-1863, PI 17, Entry 360-A, Consolidated File for 

Major Martin Delaney, 104th USCT Infantry Regiment, 1863 - 1894, National Archives Catalog, Washington, D.C. 

31. Mary Berry, Toward Freedom and Civil Rights for the Freedmen (Washington, D.C.: Howard University, 1975), 16. 

32. James E. Sefton, The United States Army and Reconstruction (Baton Rouge: Louisiana State University Press, 1967), 43. 

33. Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War (Cambridge, Mass.: Harvard University Press, 2015), 111. 


101


Returning From France a Month Ago.? 34 The justification Similarly, from May 31 to June 1, 1921, the Tulsa Race 

for this violence is absurdly unlawful, revealing both the Massacre broke out, during which white men killed many 

unnecessary acts of violence committed against Black armed Black World War I veterans. Sergeant T. S. Esley 

World War I veterans as well as the denial of self-defense told the Muskogee Phoenix about shooting a group of 

to the men who not only needed it most but who had Black veterans who refused to drop their rifles, one of 

recently used arms to defend the entire nation. 

whom Esley hit twice before the veteran, close to death, 

allegedly said, ?Well, you boys gave us more than we got 

In Bogalusa, Louisiana, a white mob lynched a discharged 

overseas.? 

Black soldier after a white woman accused him of 

38 Whether or not this quote is accurate, it 

attacking her. 35 encapsulates how the massacre was akin to another war in 

Considering the robust history of white 

which Black soldiers operated in defense of their homes, as 

women falsely accusing Black men, often at the direction 

necessary and allowed by the Second Amendment, but still 

of white men, the assault alone is questionable; this 

had to give up their arms. When a massive white mob 

lynching again illuminates the lack of protection for Black 

followed the National Guard into Greenwood, Tulsa no 

soldiers the moment that government-issued rifles were 

longer commanded enough troops to manage the violence; 

torn from their hands. In Bisbee, Arizona, fourteen Black 

while it ?might be able to battle an army of negroes,? it 

members of the U.S. 10th Cavalry were arrested following 

?could not rout two thousand heavily armed white men.? 

a ?Riot Of Negro Cavalry,? during which three Black 

39 

Many of the victims killed by governmental incompetence 

soldiers, a Mexican woman, and Deputy Sheriff Hardwick, 

the only one named, were injured. 36 and violence that night were veterans once armed by state. 

These Black men were 

Yet Tulsa brutally disrespected their service, giving them 

active-duty soldiers attacked by ?civilians,? but, initially, 

no chance to defend themselves though they had far more 

the soldiers alone faced punishment despite their 

of a right to do so, while white men with guns ran rampant 

self-defense claim. The whole ordeal received the 

without consequence. More recently, the weaponization of 

racialized term ?riot,? as in Colfax and Tulsa, with no 

Black men by state- and white-led organizations has 

indication as to why or how it started. Colonel Snyder, 

occurred in a less violent but still harmful manner. In 2008, 

commander of the U.S. 10th Cavalry, rejected the 

Otis McDonald, a Black man, filed suit against a Chicago 

accusations against his troops, arguing that ?local officials 

gun law in what became McDonald v. City of Chicago, 

had planned deliberately to aggravate the negro troopers so 

wherein the Court ruled that the Second Amendment 

that they would furnish an excuse for police and deputy 

sheriffs to shoot them down.? 37 applies to state and local governments in addition to 

Even when the United 

federal. 

States armed Black men, it made clear that the protection 

40 Not only did this ruling expose the racist lie of 

Cruikshank, but spotlighting Otis McDonald as the lead 

of arms did not extend to the men that carried them, only 

plaintiff shows the continued means through which the 

to the state that weaponized them, illustrating the 

Court and other organizations weaponized Black men. 

significant but constantly denied claim to self-defense 

Though McDonald believed in his claim to self-defense, 

Black men had. 

the National Rifle Association (NRA), an organization of 

34. ?Negro Soldier Severely Whipped,? Eastman Times Journal, August 14, 1919. 

25. ?Negro Soldier Discharged, is Lynch Victim,? New York Call, September 2, 1919. 

36. ?Bisbee is Shot Up in Riot of Negro Cavalry,? The Eagle, July 4, 1919. 

37. ?Colonel Defends Negroes,? New York Times, July 22, 1919. 

38. Brophy, 102. 

39. Ibid., 103. 

40. McDonald, 177 U.S. at 900. 


102


which he was not a member, quickly capitalized on his 

involvement for other reasons. CEO Wayne LaPierre 

attributed the NRA?s support of McDonald to its 

passed a Black Code that banned enslaved people from 

bearing arms and using self-defense at all. 44 Considering 

the American promise of ?life, liberty, and property,? this 

?unyielding dedication to preserving the Second ban on Black self-defense was not only dehumanizing but 

Amendment . . . [and] fighting the covert racism of ?gun anti-American, a direct violation of the Second 

control.?? 41 This would be productive if it were true, but it 

rather seems to be LaPierre taking advantage of 

McDonald?s Blackness to promote the NRA. The NRA has 

stayed mostly silent on cases of legally armed Black men 

murdered by police, mostly chiming in when police kill an 

unarmed Black man. For example, after an officer 

accidentally but illegally entered Botham Jean?s apartment 

and killed him in 2018, the NRA stated that ?this could 

have been very different? if Jean was ?a law-abiding gun 

owner.? 42 Even disregarding the insensitivity of this 

statement, it reveals how institutions like the NRA and 

Supreme Court only really addressed Black gun 

Amendment and the Constitution in general. Abolitionist 

Lysander Spooner, in his 1845 The Unconstitutionality of 

Slavery, argued that slavery is inconsistent with the 

Consitution, partly because if Congress possesses the 

ability to arm and discipline militias, this extends to 

arming those whom individual states may deem slaves. He 

asked, ?Can the state governments determine who may, 

and may not, compose the militia of the ?United States??? 45 

As slavery essentially allowed states to disqualify enslaved 

people from or weaponize them via the Second 

Amendment, this arguably eroded the powers of Congress 

and the United States government as a whole. 

ownership, as in McDonald, when it benefited them, 

Following the Civil War, Alabama passed a gun ban in 

bringing up self-defense when it did not occur in response 

January 1866 that prohibited Black people from owning or 

to their wrongdoings. White state actors and white-led 

carrying arms and all people from selling, giving, or 

organizations weaponize Black men with the same arms 

lending arms to Black people. 46 Though the Fourteenth 

for which Black men die for brandishing; as journalist 

Amendment did not yet exist, Black people were now free 

Frank Smyth, who has covered the NRA for over twenty 

Americans and denying them the access to guns afforded 

years, frames it, McDonald ?gave the NRA a new platform 

to other Americans undermined their ability to be 

on which to rewrite its history.? 43 

The Restriction of Black Self-Defense as Anti-American 

American by definition. That same year, Representative 

Sidney Clarke resisted re-admitting Mississippi to the 

Union because its policies banning Black people from 

If the Constitution and Bill of Rights denote the hallmark 

owning arms violated the Second Amendment. 

of American freedom, physical representations of core 

Representative Leonard Myers requested the same of 

American values, then the denial of the Second 

Alabama. 

Amendment and self-defense to Black men is 

The denial of the Second Amendment to Black 

people was so anti-American that multiple congressmen 

unconstitutional and anti-American. In 1806, Louisiana 

believed that states that did so should not be American at 

41. Frank Smyth, The NRA: The Unauthorized History (New York: Flatiron Books, 2020), 10. 

42. Adam Serwer, ?The NRA?s Catch-22 for Black Men Shot by Police,? The Atlantic, September 13, 2018, https://www.theatlantic.com/ideas/archive/2018/09thenras-catch-22-for-black-men-shot-by-police/570124/. 

43. Smyth, 10. 

44. Black Code, 33 Laws of La. § 19 (1806). 

45. Lysander Spooner, The Unconstitutionality of Slavery (Cambridge: Harvard University, 1845), 115-116. 

46. Alfred Avins, The Reconstruction Amendments' Debate: The Legislative History and Contemporary Debates in Congress on the 13th, 14, and 15th Amendments 

(Virginia: Virginia Commission On Constitutional Government, 1967), 209. 

7. Amar, 192-193. 


103


all. Nor did the passage of the Fourteenth Amendment put 

a stop to racist gun laws, as seen in United States v. 

their right to self-defense even after these Black veterans 

defended white people overseas. 

Cruikshank in 1876, a South Carolina law passed in 1902 

During the Red Summer, white men also began attacking 

that banned gun sales to anyone but sheriffs and their 

Black people living in Southwest Washington, D.C. In 

special deputies, including the KKK, and the Sullivan Law 

response, ?all-White cavalry units? and ?White Marines 

of 1911 in New York that gave police discretion in 

and White infantry? were mobilized, resulting in around 

deciding who could own a handgun, resulting in Black 

1,100 troops who ended up doing little else than forming 

people consistently being turned away. 48 With the 

more white mobs. 50 If the U.S. troops are meant to protect, 

Fourteenth Amendment, laws could no longer explicitly 

defend, and uphold the sanctity of American law, soldiers 

deny Black people their Second Amendment rights. But 

forming violent groups within their ranks to murder and 

state governments found ways to do so without outright 

deny self-defense to innocent Black people, many of them 

admitting to it, an incredibly anti-American approach that 

veterans themselves, were glaringly anti-American 

still violated the Second and Fourteenth Amendments. 

pursuits. A letter written around this same time from Neval 

In the many massacres previously discussed, Black people 

acted within their rights or even as wards of the state, 

emphasizing the anti-American act of denying them their 

Second Amendment and their resultant, distinguished 

Thomas to Archibald Grimké, two prominent Black 

activists and NAACP leaders detailed the rioting in 

Knoxville, Tennessee: ?The violence? complete with 

drunken whites destroying a county jail, ransacking the 

claim to self-defense. During the Colfax Massacre, the sheriff?s home, and looting downtown 

Black men attacked by the white supremacist militia were 

helping the newly-commissioned Sheriff Daniel Shaw, 

who ?deputized, in his writing, from fifteen to eighteen 

men, mostly Negroes, to assist as his posse in holding the 

courthouse and keeping the peace.? 49 Black militiamen 

defended the government at the request of the government, 

an action both legal and American. Yet they were forced to 

drop their arms and were shot dead by an extralegal white 

businesses? exploded southerners? smug view that they 

only lynched guilty individuals, whereas northerners 

attacked blacks solely because of their skin color.? 51 These 

attacks against government institutions and innocent Black 

people by white people disrespected both the United States 

and the rights of the fellow man, explicit acts of 

anti-Americanism that wiped away any ?smug view? white 

racists indulged in. 

supremacist group in a direct and anti-American violation 

Along with directly invoking the Second Amendment the 

of those Black men?s rights that went unpunished. In the 

Ten-Point Program of the Black Panther Party also 

white supremacist terror attacks of the Red Summer and 

strategically quotes the Declaration of Independence and 

Tulsa Race Massacre, many of the armed Black men 

carefully mimics the structure of the Declaration and the 

murdered by white people were WWI veterans. If recent 

Bill of Rights. 52 Drawing this parallel highlights the legal 

American political movements are any precedent, 

and American actions of the Panthers and, in turn, makes 

respecting and honoring the troops is a defining tenet of 

the anti-American nature of the attacks against their 

Americanism. But white men robbed Black veterans of 

48. Don B. Kates, "Toward a History of Handgun Prohibition in the United States" in Restricting Handguns: The Liberal Skeptics Speak Out (Great Barrington: North 

River Press, 1979), 15; Steve Ekwall, ?The Racist Origins of US Gun Control: Laws Designed To Disarm Slaves, Freedmen, And African-Americans,? Sedgwick 

County: 9, https://www.sedgwickcounty.org/media/29093/the-racist-origins-of-us-gun-control.pdf. 

49. ?Condition of the South.? 

50. David F. Krugler, ?1919,? Washington History 32, no. 1/2 (Winter 2020), 28. 

51. Cameron McWhirter, Red Summer: The Summer of 1919 and the Awakening of Black America (New York City: Henry Holt and Company, 2011), 181. 

52. ?The Black Panther Party Ten-Point Program.? 


104


platform impossible to ignore. The Panthers also applied 

U.S. law to their daily activism. For instance, when police 

stopped a Black person, ?a Panther patrol would arrive on 

the scene, brandishing their weapons and carrying a law 

book from which to cite specific violations.? 53 Through 

these displays, the Panthers defiantly complied with U.S. 

law and demonstrated that it was the Panthers, not the 

police, who truly upheld American law and abided by the 

Second Amendment. Over fifty years later, the founder of 

NFAC echoes this: ?Nobody says anything when other 

demographics pick up weapons, decide to arm themselves 

and confront the government over anything from wearing a 

mask to being cooped up in the house, but when certain 

demographics arm themselves all of a sudden people tend 

to act as if the Constitution doesn?t matter.? 54 

Taney deemed Black Americans gaining the Second 

Amendment as ?inevitably producing discontent and 

insubordination among them, and endangering the peace 

and safety of the State.? 56 The law always failed Black 

people regarding arms because the state intended it; it 

knew giving Black people the right to protect themselves 

threatened white supremacy, thus emphasizing the urgency 

of the Black self-defense claim through the state?s desire to 

quell it. The denial of arms to Black veterans after the 

Civil War also grew from fears that ?scenes of San 

Domingo? would recur. 57 Invoking the Haitian Revolution 

implies that the state dreaded Black people obtaining arms 

because the state also recognized how severely it violated 

the rights of Black people. It seemingly understood that 

extending these protections would result in Black people 

finally being able to defend themselves not only against 

The Black Claim to Self-Defense and Advocacy for 

fellow Americans but state institutions as well. 

Arms 

In the Red Summer, Black men armed themselves almost 

The multitude of ways the state unconstitutionally denied 

Black people the same access as white people to the 

Second Amendment, and the advocacy of Black groups for 

their right to bear arms, prove the distinct and significantly 

more lawful claim to self-defense and militias that Black 

exclusively in self-defense, depicting the explicit and 

articulable Second Amendment claim that Black people 

had and their white counterparts did not. 58 Undeniably, the 

white mob led the attack, and the Black men of the city 

organized in defense. Only one of these two groups abided 

people possess. Spooner also argues in The 

by the Second Amendment and possessed an articulable 

Unconstitutionality of Slavery that ??to keep and bear 

arms,?is a right palpably inconsistent with the idea of his 

and far more urgent claim to its protection of self-defense, 

yet that group was not the one the state protected that day. 

being a slave.? 55 By tying slavery to the Second 

After Chief of Police Raymond Pullman refused a request 

Amendment, Spooner indicated how the fight to bear arms 

harkens back to the racist institutions that undermined 

Black personhood. But he also revealed how the 

government prevented Black access to guns because it, 

too, acknowledged the validity of the Black claim to 

from the local NAACP branch to mobilize Black troops, 

the NAACP replied that the Black men of the city ?had 

determined not to stand up and be shot down like dogs? 

and were ?prepared to protect their families and 

themselvesand would do so at all hazard.? 59 

self-defense and sought to silence it. In Dred Scott, Justice 

53. John A. Courtright, ?Rhetoric of the Gun: An Analysis of the Rhetorical Modifications of the Black Panther Party,? Journal of Black Studies 4, no. 3 (March 1974), 

253. 


55. Spooner, 116. 

56. Dred Scott, 60 U.S. at 417. 

57. Berry, 16. 

58. Krugler, 28. 

59. Ibid. 


105


Failed by the state obligated to protect them, Black men longer, more unbending battle against the forces of hell in 

exercised their Second Amendment right out of a distinct our own land.? 62 Though DuBois did not necessarily refer 

need to defend themselves and their community, fighting to the use of arms, by recognizing that the freedoms Black 

to reclaim what the white mob sought to take and that veterans fought for were not theirs to keep, he encapsulates 

which the state cared little to stop. In another letter how Black people had a stronger claim to self-defense in 

between Thomas and Grimké, the pride in Thomas?s tone its truest sense, whether or not the Second Amendment 

is palpable when he writes that Black men armed protected it as it should. 

themselves on the rooftops of D.C., ?declaring their 

In 1921 in Tulsa, the Black community faced an increasing 

purpose to die for their race.? 60 Such praise encapsulates 

threat of lynchings, and Black newspapers started to advise 

the sentiment among many Black activists that their need 

readers to obtain arms for protection against such attacks. 63 

for arms in the name of self-defense was not only crucial 

These calls to action depict self-defense for Black people 

to their survival but a rallying cry for their liberation, 

as necessary for their survival, which, in this case, it was. 

simultaneously demonstrating legal obedience and state 

During the events leading up to the Tulsa Race Massacre, 

resistance. 

Black men only armed themselves in the first place 

Nor was this the only time in the Red Summer that Black because rumors spread that a white mob planned to lynch a 

men took up arms to defend their communities when the young Black boy named Dick Rowland, who was charged 

state failed or refused to do it for them. In one letter sent to with assaulting a white girl. 64 From the beginning, Black 

Grimké that detailed the violence in Knoxville, Thomas men took up arms in defense, either of themselves or Dick 

writes, ?Blacks set up a rough perimeter at the entrance to Rowland. Doing so was both lawful and demonstrative of 

their area, just northwest of downtown. They shot out their distinct and even more necessary claim to 

streetlights and overturned a gravel truck to strengthen self-defense. The Black Dispatch of Oklahoma City 

their defensive position.? 61 The phrasing of ?defensive reprinted a story published by the Tulsa Tribune about 

position? emphasizes how Black men used arms within the Rowland?s case with a new headline? ?The False Story 

law though they were treated otherwise, while white Which Set Tulsa on Fire?? blaming the Tribune for 

people behaved illegally with state protection. In other inciting violence, an accusation proven true when the 

words, it reflects the simultaneously backward application Tribune later, allegedly, admitted to publishing false 

of the Second Amendment and more urgent claim to it for information. 65 The falsification of the story that catalyzed 

Black people. Appealing to soldiers returning from World the massacre highlights how white people enabled and 

War I amidst the violence of 1919, W. E. B. DuBois encouraged racial violence, against which Black people 

decried, ?By the God of Heaven, we are cowards and had every right? more of a right? to defend themselves. 

jackasses if now that the war is over, we do not marshal As previously discussed, white police officers deputized 

every ounce of our brain and brawn to fight a sterner, and armed a ?bloodthirsty mob? to attack Black men who 

60. Neval Thomas to Archibald Grimké, July 28, 1919, box 39-28, folder ?July 1919,? Archibald Grimké Papers, Moorland-Spingarn Research Center, Howard 

University. 

61. McWhirter, 177. 

62. W.E.B. DuBois, ?Returning Soldiers,? The Crisis 18 (May 1919): 14. 

63. Brophy, 130. 

64. Ibid., 62-64. 

65. Ibid., 64. 


106

carried guns to prevent the lynching. 66 Black people were 

often the targets of armed white people, including civilians 

and those within the state apparatus, so why were they 

barred from defending themselves. A clear distinction 

manifested in how the Second Amendment applied to 

different races, further proof that Black people experienced 

a greater need for self-defense. 


Further, the Ten-Point Program of the Black Panther Party 

cites the Second Amendment as central to combating 

police brutality by enabling the creation of armed 

self-defense groups intended to protect the Black 

community. 67 Framing the Second Amendment in this way 

demonstrates the lawfulness of armed Panthers along with 

the uniqueness of their self-defense claim. The Panthers, 

initially called the Black Panther Party for Self-Defense, 

were targeted by the police; it was the state from which 

they needed protection, a threat inapplicable to the white 

lived experience. On December 4, 1969, 14 police officers 

in Chicago murdered two Panthers? Fred Hampton and 

Mark Clark? while they slept, claiming their deaths 

resulted from a shoot-out even though Hampton and Clark 

only managed to fire once in response. 68 The Panthers 

undeniably shot their single bullet in self-defense. Yet 

again, the police broke the law and became the real 

?criminals? and ?threat? denounced by Agnew and 

Hoover, proving the arguably more lawful and more 

American claim to self-defense applicable to Black people. 

In a 1972 Associated Press article, Huey Newton explained 

that the Panthers recently opted to reject the ?rhetoric of 

the gun? after ?it got about forty of us killed and sent 

hundreds of us to prison.? 69 The Panthers moving away 

from arms advocacy speaks to the cyclical relationship 

between Black people and arms: white civilians and the 

state killed them, so they acquired guns to defend 

themselves, and then they were killed for defending 

themselves. They strove to take back their Second 

Amendment right as permitted by the law, while the state 

acted extralegally and bore no consequences for it, 

emphasizing why the claim Black people possess to 

self-defense certainly differs from and even outweighs that 

of white individuals. 

Race as Actual and Articulable 

I now return to the contemporaneous and ongoing case at 

hand: New York State Rifle & Pistol Association v. Bruen. 

Members of the gun advocacy organization New York 

State Rifle & Pistol Association (NYSRPA), Robert Nash 

and Brandon Koch, applied for gun licenses in New York, 

a process which requires showing ?proper cause? for 

self-defense. When their requests for their licenses to 

include self-defense were rejected by Justice Richard 

McNally of the New York Supreme Court, Third Judicial 

District, for not showing ?proper cause,? Nash and Koch 

brought forth a Section 1983 suit in response. Both men 

had been granted restricted licenses for hunting and target 

practice but argued that not having their license expanded 

to include self-defense violated their Second Amendment 

rights. Their suit was dismissed by the district court judge 

in the Northern District of New York. NYSPRA appealed 

this decision to the United States Court of Appeals for the 

Second Circuit, but, again, the claim was dismissed, this 

time by the Second Circuit. Despite three court systems 

rejecting NYSPRA?s argument, the Supreme Court granted 

he plaintiff's petition for certiorari on April 26, 2021. 

70 71 

The plaintiffs did not file suit because of racial 

discrimination but rather in response to what they deemed 

66. Ibid., 20. 

67. ?The Black Panther Party Ten-Point Program.? 

68. ?Police kill two members of the Black Panther Party,? History, November 13, 2009, https://www.history.com/this-day-in-history/police-kill-two-members-of-theblack-panther-party. 

69. Courtright, 250-251. 

70. A writ of certiorari is filed when a party loses a case in a lower court and appeals the decision to a higher court. It is most commonly associated with the Supreme 

Court, as it is here. See: ?Certiorari,? Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/certiorari. 

71. Baldwin and Gust. 


107


a violation of their Second Amendment rights. They argue 

that the Second Amendment is ensured to all Americans 

under the Constitution, self-defense included, and that the 

New York law at hand disregards this. But as the numerous 

examples in this paper have demonstrated, this often has 

not been true, at least not for all Americans, and Black 

Americans in particular. The Joint Appendix of the 

Supreme Court on this case mentions race and Black 

people specifically in very few but very notable ways: (1) 

?For decades before the Civil War, the southern States had 

schemed at every turn to prevent their enslaved and free 

black populations from bearing Arms?; (2) ?After the Civil 

War, these noxious efforts to suppress the rights of former 

slaves to carry arms for self-defense continued. 

Mississippi?s notorious ?Black Code,?for example, forbade 

?freedman, free negro or mulatto? to ?keep or carry 

fire-arms of any kind?; and (3) ?Congress?s efforts 

culminated in the adoption of the Fourteenth Amendment, 

which ensured the right of every American, regardless of 

race, to ?bear arms for the defense of himself and family 

and his homestead.?? 

72 73 74 

Like this paper, the Joint Appendix of the Supreme Court 

raises the intersection of racism and the Second 

Amendment, referencing everything from the Black Codes 

to McDonald. 75 But unlike this paper, the Joint Appendix 

does not interrogate whether this racism, unexperienced by 

white people and somewhat irrelevant to the experiences of 

the plaintiffs, counteracts the argument of the plaintiffs by 

further supporting the proposed requirement of a ?proper 

cause? for self-defense. It does not engage with the 

continued differential treatment of white and Black people 

before the law established by the Second Amendment, nor 

does it concern itself with the significantly higher 

frequency at which Black people are killed, typically by 

white civilians and law enforcement, in the name of 

?self-defense.? Much like in McDonald with the NRA, the 

plaintiffs appear to put the racism of the Second 

Amendment on trial for the sake of those who do not 

experience it. Instead of asking what should be done about 

this racist history, it seems to ask how this racist history 

can serve the ends of gun activists, regardless of their race. 

Indeed, Tom King, President of NYSRPA, is a white man 

and one of the main challengers in this case. 76 The Joint 

Appendix, in calling out these racist moments, further 

reveals the disparate treatment of Black and white people 

under the Second Amendment. While the case New York 

State Rifle & Pistol Association v. Bruen concerns the 

constitutionality of a ?proper cause? for self-defense, the 

racist history and current applications of the Second 

Amendment could offer a reason to further specify what a 

?proper cause? is rather than to strike it. In many states in 

which ?proper cause? legislation does not exist and 

concealed carry is not restricted, Black people are killed 

for possessing arms even with an ?actual and articulable? 

need to do so, as seen in the murders of people like 

Philando Castile, a Black man who informed a police 

officer he carried a legally obtained gun but was shot by 

this police officer when reaching for his license. 77 

Conversely, Kyle Rittenhouse, a white minor who illegally 

possessed a gun and ended two lives with it, faced no legal 

punishment because his claim to self-defense was upheld 

by the court he was tried in, even though he acted 

extralegally. 78 Only one of these two men survives today. 

72. New York State Rifle & Pistol Association Inc. v. Bruen, J.A. 20-843 74 (2021). 

73. Bruen, J.A. 20-843 at 75. 

74. Bruen, J.A. 20-843 at 76. 

75. Bruen, J.A. 20-843 at 75-76. 

76. Andrew Chung, ?New York judge's gun permit denials trigger big Supreme Court case,? Reuters, October 28, 2021, https://www.reuters.com/legal/government/ 

new-york-judges-gun-permit-denials-trigger-big-us-supreme-court-case-2021-10-28/. 

77. German Lopez, ?Philando Castile Minnesota police shooting: officer cleared of manslaughter charge,? Vox, June 16, 2017, https://www.vox.com/2016/7/7/121162 

88/minnesota-police-shooting-philando-castile-falcon-heights-video 

78. Melissa Chan, ?In the Kyle Rittenhouse Trial, Self-Defense Took Center Stage,? TIME, November 19, 2021, https://time.com/6120607/kyle-rittenhouse-selfdefense/. 


108


Only one broke the law. New York State Rifle & Pistol murders of George Floyd, Breonna Taylor, and other 

Association v. Bruen, then, deals with what appears to be unarmed Black people by police. ?I did so not because of 

hypocrisy: the plaintiffs argue that all people have the right the violence in the urban communities that have shaped 

to self-defense, ironically invoking the experiences of the me,? stressed Jones. ?I did so because I felt that America?s 

people for whom this right has never truly been respected racism was about to boil over in violence.? 80 Jones shared 

while taking no steps to rectify this. 

his fear that striking down the New York state law would 

allow more Americans to carry concealed weapons, 

Thus, could being a Black person in the United States 

regardless of their reason for wanting to do so, increasing 

qualify as a proper cause for a gun license that specifies 

the capacity for violence against Black people. But Jones 

self-defense? As discussed previously, protected class 

also admits he believes in Second Amendment protections, 

legislation works to identify certain groups of people that 

and has exercised this right himself; however, he 

require additional protection from the government against 

encourages carrying arms amongst the Black community 

discrimination, harassment, and harm. On a federal level, 

not as a physical attestation to his freedom as an American, 

the Department of Justice recognizes hate crimes as crimes 

but because he firmly believes his life and the lives of 

committed based on the race, color, religion, national 

other Black people are further threatened without 

origin, sexual orientation, gender, gender identity, or 

possessing a means to self-defense. 

disability of the victim and the motivation of the 

81 

perpetrator. Though states differ in their applications of The Supreme Court, in forcing this New York state law 

hate crimes laws, many necessitate that for a crime to be into the public eye, has raised an accompanying issue of 

considered a hate crime, there must be bias involved. 79 relevance: what is self-defense? What is a valid claim to 

This is all to say that the United States already enforces self-defense? The Second Amendment protects the right to 

policies that concern harm done to protected groups. But if self-defense, and the firing of a gun at another person 

this were to extend beyond harm response and to requires an articulate and actual need for self-defense. The 

preventative measures, could that be done by introducing lived experiences such as that of Jones support the idea 

protected class legislation to self-defense? Could a proper that Blackness, as a protected identity and oppressed 

cause to carry arms be one?s status as a member of a group, invokes an inherent threat in the United States. 

protected group? Is the question the Supreme Court should Thus, Blackness could logically qualify as an ?actual and 

be asking not if proper cause gun permit laws are articulable? need. Though I make no assertions that this 

constitutional, but if certain groups of people can be should be the case, for all the reasons I have carved out 

recognized as having proper cause? 

throughout this paper, if there were to be a ?proper cause? 

to carry a concealed weapon, it seems that a protected class 

In a 2021 op-ed for The Philadelphia Inquirer, author 

historically targeted both by the law and comparatively 

Solomon Jones expresses an oft-overlooked perspective 

privileged groups regarding the Second Amendment would 

when it comes to the public carrying of arms. Jones 

qualify. 

explains how, for the first time in his life, he purchased a 

firearm in the summer of 2020 during the protests and Conclusion 

racialized violence that broke out in the wake of the 

After attending the NFAC rally in Lafayette, one woman 

79. ?Federal Laws and Statutes.? 

80. Solomon Jones, ?A Supreme Court ruling on 2nd Amendment could lead to more deaths of Black people | Solomon Jones,? The Philadelphia Inquirer, April 28, 

2021, https://www.inquirer.com/opinion/supreme-court-2nd-amendment-case-gun-laws-rights-safety-20210428.html. 

81. Ibid. 


109


named Kristen Colemon told CNN that, in a change of manipulated self-defense as a means to murder Black 

pace, her 9-year-old daughter ?knew those guns were there people, Black people retain a distinct claim to it. 

to protect her not to hurt her.? 82 But in October 2021, a 

Yet, until May 2021, a memorial stood in Colfax, 

grand jury in Kentucky indicted NFAC?s Johnson on five 

Louisiana, dedicated to the ?heroes? of the 1873 

counts of first-degree wanton endangerment for allegedly 

massacre? the three white men who died. 85 Thus, the 

pointing a gun at law enforcement, to which he pleaded not 

Black self-defense claim is one against white people and 

guilty. 83 In Kentucky, this charge entails someone engaging 

white state actors simply unmatched by that of the white 

in conduct that ?creates a substantial danger of death or 

people who enjoy full access to the Second Amendment 

serious physical injury to another,? a class D felony. 84 

even when it does not apply. While I make no firm claim 

Have Johnson?s actions caused ?substantial danger?? Has 

that race should be deemed an actual and articulable reason 

he acted extralegally? Or has he defended his community, 

for self-defense, I do argue that the legal and historical 

a protected minority class, from threats against it, law 

basis for doing so is sound. If arms are intended for 

enforcement included? Has he identified an actual and 

self-defense, as we have seen argued in cases of white law 

articulable claim to arms? 

enforcement officers murdering lawfully armed Black men 

As portrayed through the legal lies told of the Second like Philando Castile and the state protecting armed white 

Amendment, the state?s forcible arming of Black men in shooters like Kyle Rittenhouse, is racism not a real and 

wartime but denial of the same during peace, the identifiable threat? Undeniably, it is a force against which 

unconstitutionality of restricting the access of Black people self-defense is valid and even necessary. However, even if 

specifically to self-defense and militias, and the Black the Supreme Court strikes down the New York law, which 

advocacy for arms as a means to liberation, Black people it is likely to do, it will not be for the reasons I have 

possess a distinct and more lawful claim to self-defense described: in a majority conservative Court, the concern is 

and armed militias that differs from and outweighs that of not of racial justice, but of gun ownership. In the words of 

white people. Rather than carrying guns in the name of Cottrol and Diamond, for those who ?shape . . . 

revolution, Black Civil War and World War I veterans, constitutional policy, the state's power and inclination to 

Black Panthers, and, more recently, NFAC members, took protect them is a given. But for all too many black 

up arms in a reclamation of the Second Amendment. Yet Americans, that protection historically has not been 

while white supremacist militias existed with little available.? 86 If protection is not freely given to Black 

consequence or were encouraged by the state, Black people, then perhaps it must be taken in the form of 

groups consistently experienced the fewest benefits and self-defense. 

suffered the most infringements on the right to bear arms. 

White people never needed governmental oversight to 

access their rights; Black people only could do so with it. 

If the Second Amendment entitles all Americans to 

self-defense, and if white people have historically 


83. Billy Kobin, ?'Grandmaster Jay' pleads not guilty in latest case linked to Louisville protest,? Louisville Courier Journal, October 20, 2021, 

https://www.courier-journal.com/story/news/crime/2021/10/20/nfac-leader-grandmaster-jay-indicted-jefferson-county-louisville-grand-jury/7948336002/. 

84. Ky. Rev. Stat. § 508.060 (effective January 1, 1975). 

85. Thomas Howell, ?The Colfax Massacre: An Essay Review,? Louisiana History: The Journal of the Louisiana Historical Association 51, no. 1 (Winter 2010), 74. 

86. Cottrol and Diamond, 359. 


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