The Catholic University of America Columbus School of Law
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Administrative Apparition: Resurrecting the Modern Administrative State’s Legitimacy Crisis with Agency Law Analysis
Get PDFThere is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though some contest it, the administrative state faces a crisis of legitimacy. This article addresses what is described here as the “Approval Defense,” an argument that justifies the administrative state on grounds that, even if unconstitutional, all three branches of federal government and the public have subsequently approved of our modern form of government, so it is legitimate on that basis. In essence, the Approval Defense’s claim of legitimacy is one of ratification. Using similar agency law principles, this article seeks to demonstrate the flaws with a justification based on ratification and show that until there has been an adequate explanation of its lawful basis, the administrative state’s legitimacy crisis will simply not go to its grave
Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018-2019 Measles Pandemic or the Law as a Public Health Response
Get PDFFollowing the recent decision in Roman Catholic Diocese v. Cuomo,[1] clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the legal response to vaccination in the two countries, and between two neighboring ultra-Orthodox localities in New York. The research demonstrates the efficacy of differing legal responses, a novel approach to empirically assessing the impact of legal intervention. In so doing, the Article demonstrates the power of the law to help quash epidemics, demonstrating its use as a public health tool. The Article also reaffirms the constitutionality of protecting public health via governmental measures that might trespass on individual rights, such as mandating vaccination. I also discuss legal challenges mounted by the anti-vax community. Finally, and critically, this Article demonstrates the importance of lawyers being knowledgeable with epidemiological terms and principles when mounting defenses to governmental initiatives.
[1]. See Roman Cath. Diocese v. Cuomo, 141 S. Ct. 63, 68 (2020)
The Role of Emotion in Constitutional Theory
Get PDFAlthough the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.
The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords with modern science and the insights of many law-and-emotion theorists, it provides a firm foundation for an analysis of emotion in constitutional theory. Having laid that foundation, the Article examines the role of emotion in constitutional culture, the subset of national culture concerned with a constitution. Constitutional culture combines a society’s ideas about, and emotional attachments to, its constitution. Here, the Article develops a novel synthesis between Aquinas’s model of emotion and Edmund Burke’s sophisticated exploration of the importance of emotion in constitutional culture. Burke argues that theories of constitutional legitimacy shape constitutional culture and must accord with it. If a theory of legitimacy is at odds with a society’s constitutional culture, the society risks the instability of the regime. This insight—which is consistent with Aquinas’s model of emotion—is the primary basis for understanding the role of emotion in constitutional theory.
Finally, the Article turns its attention to constitutional theory. Observing that popular sovereignty is the theory of legitimacy endorsed by our constitutional culture, the Article argues—based on the synthesis of the Thomistic and Burkean accounts— that emotion should play an important role in evaluating the contours and viability of theories of legitimacy. Theories of legitimacy that accord with popular sovereignty have a stronger argument in their favor because they reinforce the emotional attachments that lend stability to our Constitution. Theories of legitimacy that reject popular sovereignty, by contrast, must be modified or abandoned or, alternatively, must explain why attempts to change our constitutional culture will avoid the instability that the Thomistic and Burkean accounts would predict. The Article therefore has particular relevance to assessing radical constitutional theories—whether from the political right or the political left—that are critical of American constitutional culture. The Article concludes by exploring the implications of emotion for constitutional doctrine, focusing on stare decisis and the examples of Roe v. Wade, 410 U.S. 113 (1973), and Miranda v. Arizona, 384 U.S. 436 (1966)
Religious Liberty and Judicial Deference
Get PDFMany of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.
The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first flag salute case, Minersville School District v. Gobitis. That approach was short-lived, as Gobitis was swiftly overruled in West Virginia State Board of Education v. Barnette. Rather than deferring to political actors, Barnette treated the Constitution as placing certain rights “beyond the reach of majorities” and establishing them as “legal principles” that must be “applied by the courts.” Barnette’s approach to rights—rejecting a Thayerian “duty of deference” for First Amendment rights—has largely triumphed, even in other individual rights contexts.
But a curious anomaly persists. Unlike in other areas of the law, the discredited Thayerian approach to the First Amendment from Gobitis was eventually adopted into the modern free exercise standard embraced by the Supreme Court in Employment Division v. Smith. As a result, many free exercise claims have been decided with precisely the kind of rational basis deference we long ago abandoned for other constitutional rights.
This Article examines the relationship between religious liberty claims and Thayerian judicial deference. With the Supreme Court poised to reconsider Smith, this focus on deference differs from the standard scholarly and judicial approach, which tends to emphasize the debate over religious exemptions. Focusing instead on deference shows how Smith is an outlier, out of step not only with prior religious liberty cases but also with our broader approach to the enforcement of constitutional rights. Likewise, when religious liberty is viewed through the lens of deference, it becomes clear that, even without overruling Smith, the Supreme Court has been moving away from Thayerian judicial deference across a wide range of religious liberty disputes over the past decade. These deference-rejecting decisions cast the Religion Clauses as the “the heart of our pluralistic society,” that help “foster a society in which people of all beliefs can live together in harmony.” Those high goals are only attainable if religious liberty consists of judicially enforceable rights, rather than occasions for deference to the majoritarian governments that the Bill of Rights is supposed to constrain
Federal Courts: Article I, II, III, and IV Adjudication
Get PDFThe distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, Section 2/Article I, Section 8, Clause 3; and Article II, Section 1. These distinctions matter for defining jurisdiction and understanding the scope of the authorities—and constitutional protections—that apply. The failure of scholars to take into account the panoply contributes to inaccurate analyses and cabins debates. This Article takes a significant step forward, providing a conceptual framework for each type of court and delineating, based on their legal and historical underpinning, which entities constitute each category. It details the courts’ constitutive elements and their jurisdiction as supported by doctrine, statutory law, and scholarly literature, providing the first, comprehensive taxonomy of federal courts in the United States
The President’s Remedy–What the Hydroxychloroquine Story Teaches us About the Need to Limit Off-Lable Prescribing Powers
Get PDFWhen the history of the first year of the United States Government’s response to the COVID-19 virus is written, there is likely to be mention of the still unexplained vehemence with which then president Donald J. Trump made use of his access to social media to promote seldom used anti-malaria drug, hydroxychloroquine, for both the prevention and treatment of COVID-19 despite the active growing opposition of most of the world’s scientists, including his own government scientists. While the use of drugs developed and approved by the FDA for different purposes to combat new diseases, off-label prescribing, is legal in the United States, the intense promotion of two drugs, hydroxychloroquine and ivermectin, cast a light on what has always been a gap in the law between the federal government’s power to approve drugs and the states’ power over the practice of medicine. In particular, former President Trump’s advocacy over twitter and in public appearances of hydroxychloroquine even after it had been found ineffective by the FDA and the efforts of families throughout the country to demand ivermectin, also found by the FDA to be ineffective, be administered to their loved ones being treated for Covid-19 in ICU units highlights the need to address this unsatisfactory compromise. Recent arguments that restricting drug companies from promoting their products off-label are in violation of the first amendment do not take into account social media fueled campaigns that effectively strip FDA of all ability to protect consumers from ineffective and perhaps unsafe drugs so long as it has ever approved them for any reason
Rural Broadband Buildout: How the Federal Communications Commission (FCC)’s Anti-Competitive Practices Collided in the 5G Fund Proceeding
No full textOn January 25, 2022, this year’s Student Scholar Series kicked off with a presentation given by Catholic Law third-year student Kelly Laughlin. Laughlin’s work entitled, Rural Broadband Buildout: How the Federal Communications Commission (FCC)’s Anti-Competitive Practices Collided in the 5G Fund Proceeding, examines rural broadband expansion at the center of the FCC policy agenda—acknowledging the inherent difficulties of rural broadband buildout while also showing a lack of strong incentive structure on the part of the FCC to support their policy goals.
Laughlin first became interested in the topic while working on consulting projects on the Sprint/T-Mobile merger prior to starting law school. During that time, she started to see a connection between telecommunications network buildout and large mergers in this sector. Through her research, Laughlin discusses how the FCC’s approach to approving large telecommunications mergers has impacted rural broadband buildout efforts. She argues that the Commission has entrusted the private sector to build networks in rural areas without the proper incentive structure in place to ensure that rural customers receive broadband access. In particular, her note discusses how the recent T-Mobile/Sprint merger was approved alongside rural broadband conditions, but the FCC has decided to allow T-Mobile to continue receiving support from Universal Service programs like the 5G Fund for Rural America