University of California Hastings College of the Law
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‘Cruel and Unusual’ in 1689, 1791, and 1868: Shifts in Incorporation
No full textRecently, the Supreme Court has acknowledged the scholarly debate over whether to apply the historical understanding of the Bill of Rights as ratified in 1791 or as incorporated through the Fourteenth Amendment in 1868. This acknowledgment raises two important issues with regards to the Cruel and Unusual Punishments Clause. First, the Cruel and Unusual Punishments Clause was copied from the English Bill of Rights in 1689, generating a third, additional time period relevant to its historical understanding. Second, the more textualist framework of the Cruel and Unusual Punishments Clause allows for more relatively bounded language and interpretation, which could remain unchanged through each time period. And if the Eighth Amendment’s textual principles could remain intact, even while its expected applications changed over time, each incorporation would represent a shift in construction rather than in a shift in interpretation. As such, the Cruel and Unusual Punishments Clause maintains its longstanding function of prohibiting punishments that are unjustifiably more severe (cruel) and contrary to the ordinary standards of law (unusual) despite changing expected applications against extralegal courts, federal overreach, and discrimination
The Federal Government Cannot Prohibit the Exercise of a Core State Sovereign Function: Haaland v. Brackeen and Expanding the Anticommandeering Doctrine
No full textThe Tenth Amendment’s anticommandeering doctrine limits the ability of the federal government to issue directives to state legislative bodies and executive officials. While the Supreme Court’s path through the Tenth Amendment has been less than direct, New York v. United States and United States v. Printz clarified that the federal government cannot “commandeer” state legislatures or executives to implement federal policy. While the core of the Court’s approach to anticommandeering remains focused on halting congressional efforts to press state agents into implementing federal regulatory programs, the Haaland v. Brackeen decision may be read to expand the anticommandeering principle. That is, it could be used to invalidate certain federal action that regulates States even when the State is not made a puppet of the federal government.
In Haaland, the Court suggests there may be times (however “unlikely”) when a generally applicable law does run afoul of the Tenth Amendment’s anticommandeering doctrine. For example, when a law primarily affects the States or prohibits the exercise of its core sovereign regulatory functions.
In this Article, I argue that the Court in Haaland quietly strengthened the application of the anticommandeering doctrine, despite rendering an opinion that declines to find a violation of the Tenth Amendment when Congress imposes requirements on state courts. Specifically, the anticommandeering doctrine should be expanded to prohibit federal action that, as a practical matter, prohibits the exercise of a core state sovereign function such as the prosecution and adjudication of state crimes. I also offer a post- Haaland set of principles to guide any anticommandeering analysis
Standing and Prosecutorial Discretion: Why the Doctrine of Standing Precludes Challenges to Categorical Non-Enforcement
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Anti-abortion Law or Illegal Human Life Support Conscription?
No full textThis Article introduces the idea that forced fetal life support in a state that bans abortion is unpaid state-conscripted human life support (“USCHLS”) by the hosts. It reviews how the Dobbs decision resulted in USCHLS, unpaid work, which violates the U.S. Constitution’s Thirteenth Amendment protection against “involuntary servitude.” Additionally, USCHLS constitutes a per se taking which violates the “Takings Clause” of the Fifth Amendment. This Article suggests sexual activity insurance might alleviate some of the problems with USCHLS, but not all of them.
To date, no U.S. federal or state government offers the G.I. bill, a state equivalent, or service pay for USCHLS work. As long as the U.S. and state governments compensate military, state police, and other recruits for their service in the preservation of American civilian life, then a failure to pay USCHLS hosts violates the Equal Protection Clause of the Fourteenth Amendment. It also violates Title VII of the 1964 Civil Rights Act.
Conceivably, other people might in the future experience state conscription without consent or compensation. For example, people with a spare lung, an extra kidney, bone marrow, a rare blood type, and other needed body parts—i.e., all of us—should be protected from USCHLS of other living people or fetuses.
In sum, the goal of this Article is to demonstrate that USCHLS violates the Constitution. Rather than rely solely on the 14th Amendment and notions of privacy found in liberty, this Article explores alternative constitutional protections
The Inequitable Impacts of Sea Level Rise: How East Palo Alto Serves as Both a Warning and Beacon of Hope for Coastal Communities
No full textAs sea level rise and coastal flooding continue to threaten communities globally, the impacts on shoreline residents will not be distributed equally. Projections of physical damage do not account for other environmental and socioeconomic contexts that overlap to disproportionately burden the most vulnerable communities. East Palo Alto, a city that regularly suffers from destructive flooding, is at high monetary and social risk from sea level rise due to a history of racially discriminatory practices that contributed to residents’ current socioeconomic disadvantage. This inequity poses a distinct environmental justice issue, requiring adaptation strategies that place the city’s environmental burden within past and present socioeconomic contexts.
This Article proposes sea level rise adaptation strategies for East Palo Alto that achieve environmentally just outcomes for its residents. It first identifies the adverse impacts of sea level rise and how economic disadvantage creates amplified risks in socially vulnerable populations, often disproportionately burdening communities of color. Applying this framework, this Article finds that East Palo Alto’s experience of racially discriminatory government policies and housing practices has increased its residents’ vulnerability to sea level rise impacts. It evaluates current climate adaptation efforts and recommends strategies that prioritize environmental justice by utilizing local planning instruments, collaborating with stakeholders across multiple jurisdictions, and leveraging state and federal funding opportunities. Taken together, this Article offers a policy nexus that may prove useful for East Palo Alto and other coastal communities in implementing equitable adaptation measures
