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“No Superior But God”: History, Post Presidential Immunity, and the Intent of the Framers
Get PDFThis essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.
Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is implicit in the Constitution of the United States. Embracing the principle that the Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed”, Ex Parte Grossman, 267 U.S. 87, 108–109 (1925), this essay analyzes that claim in the light of the pre-revolutionary common law and the writings of the Framers and their contemporaries. Drawing from these sources, this essay demonstrates that the Constitution reflects a clear intent on the part of its Framers to cleanly break with the historic tradition of the sacred and inviolable executive. On these bases, this essay concludes that a doctrine of post-presidential immunity from criminal prosecution is not merely—as the Court of Appeals properly held—unsupported by positive law, but, moreover, both contrary to the Framers’ intent and fundamentally incompatible with the Constitution of the United States. It therefore urges the Supreme Court, when deciding the issue for the final time, to consider the thousand-year-old history underlying Mr. Trump’s claims to immunity and to reject those claims as incompatible with the republican government established by this country’s founders
FDA Overreach: Is Your Pet’s Health a “Major Question” to You?
Get PDFPharmacy compounding of drugs for companion animals and humans is as old as time. For hundreds of years, pharmacists created these drugs using active pharmaceutical ingredients, otherwise known as bulk drug substances, to address the medical needs of these patients. Congress recognized this longstanding practice when it enacted the Food, Drug, and Cosmetic Act (“FDCA”), with lawmakers then noting that while pharmacists, physicians, and veterinarians were already highly regulated by the states, mass-producing drug manufacturers were not regulated. The FDCA would regulate such manufacturers.
Thereafter, pharmacy compounding from bulk drug substances continued for decades after the FDCA’s enactment and without any attempted interference by the Food and Drug Administration (“FDA”). But, approximately fifty years after Congress enacted the FDCA, the FDA began to change its tune. The FDA’s policy guides first proclaimed such compounding to be illegal under the FDCA in relation to human drugs. Congress pushed back and, in 1997, created the Food and Drug Administration Modernization Act (“FDAMA”), which expressly permits pharmacy compounding from bulk drug substances for human use. Despite this congressional statement, the FDA persisted in its position that using bulk drug substances to compound drugs for companion animals is illegal per se. Its latest 2022 policy guide adheres to this position, stating that the FDA, “in its discretion,” will permit such compounding only in limited, delineated circumstances. But in that same year, the Supreme Court officially recognized the “major questions doctrine,” which attempts to rein in overzealous agency assertions of power beyond that which Congress likely granted. In West Virginia v. EPA, the Court announced that, when faced with dramatic claims of agency authority that have political or economic significance, are novel or unprecedented, or impact traditionally state-regulated areas, the Court will look for a “clear statement” from Congress that it delegated such authority to the agency.
This Note analyzes the legality of the FDA’s 2022 policy guide for pharmacy compounding from bulk drug substances for companion, nonfood animals. For several reasons, the “major questions doctrine” should apply to curtail the FDA’s claimed authority. The FDA’s position ignores centuries of history, several FDCA textual provisions, the FDA’s own inconsistent policy positions, and traditional state regulation over pharmacy and medical practices. And, at bottom, the FDA’s policy jeopardizes companion animals’ medical needs and runs counter to the FDCA’s mission. If the FDA’s 2022 policy guide is allowed to stand, it will have a substantial and unnecessary negative impact on the health and wellbeing of nonfood companion animals—who, for many of us, are beloved members of our families
Voting Rights in a Politically Polarized Era . . . and Beyond
Get PDFThis Article places the impact of the Voting Rights Act (“VRA”) in historical and futuristic context. There is no gainsaying that the VRA has had a tremendously positive impact in reversing or, at least, buffering the impact of discrimination throughout United States history. This is particularly—and sadly—manifest in the actions taken by some states to restrict access to the polls and voter registration in the wake of the Supreme Court’s Shelby County decision. A healthy democracy requires free and fair elections. Therefore, it is necessary to roll back such discriminatory laws. Yet, the battle over voting rights now takes place in a political universe that is vastly larger than it was at the time of the VRA’s passage. Accordingly, while measures such as the VRA have—and will continue to have—clear, positive impacts on the functioning of elections, it is important to note that elections play less of a governing role in an era in which the successful democratization of political power has led to its privatization and, correspondingly, to its lack of accountability
Back to the Future: Revisiting State Constitutions to Protect Against New Technological Intrusions
Get PDFThe Fourth Amendment is crucial for protecting Americans from government intrusion. However, new technologies such as pole cameras, reverse keyword searches, and geofence searches provide new ways for governments to gather information about individuals. As these new technologies develop, the Fourth Amendment has struggled to advance alongside this new technology.
Thankfully, the Fourth Amendment is not the only protection Americans have from government intrusion. Every single state has its own state constitution and analog to the Federal Fourth Amendment. In fact, some states had their own analog amendments even before the adoption of the Federal Fourth Amendment. While oftentimes the state amendments are similarly written to the federal one, states are under no obligation to interpret their amendments the same way federal courts have interpreted the Federal Fourth Amendment. States are free to interpret their amendments however they want as long as they do not provide less protection than the Federal Fourth Amendment. State courts are empowered to respond to new technologies separately from federal courts and perhaps provide greater protection than federal courts are willing to afford.
This Note argues that states should not interpret their analogs to the Federal Fourth Amendment as being the same as the federal one, especially in regards to new technology. State constitutional protections do not have to be an afterthought. This Note provides examples of state courts that have decided to break from federal precedent and interpret their constitutions differently, affording greater protections for their citizens. It also cautions against what happens when a state forgoes deciding cases under their own constitutions. Lastly, this Note offers several suggestions for how courts and the legal community empower state courts to embrace their state constitutional protections more frequently
Corporate Governance & International Law
Get PDFStakeholder activism by nongovernmental organizations (NGOs), consumers, employees, and others can incentivize corporate managers to comply with international law on climate change, armed conflict, human rights, and access to medicine, among other issues. As such, stakeholder enforcement of international law has two distinct audiences: the corporation that is persuaded to change and fellow stakeholders who are persuaded to act. But familiar difficulties with collective action impede the success of stakeholder enforcement of international law. These challenges can compromise the ability of shareholders to monitor corporations; these same problems similarly jeopardize the ability of stakeholders to monitor corporate compliance with international agreements, principles, and other institutions.
This Article synthesizes the insights of corporate governance with the challenges of international law. Descriptively, it identifies both a problem and solution: stakeholders are rationally apathetic because they confront high per capita costs (information, coordination, and conflict) of enforcing international law but receive low per capita benefits from such enforcement. But this Article explains how sequential stakeholder activism provides changes to these cost-benefit analyses: actions by one group—such as consumers, employees, suppliers, financial institutions, or the media—can lower detection, verification, and transmission costs while increasing the benefits each stakeholder receives from enforcement by socializing stakeholders to share preferences, thereby reducing conflict and coordination costs. Critically, international law converts particularized company wrongdoing into violations of global norms—thereby offering economies of scale to stakeholders who want to enforce international law. Enforcement is a chain reaction.
Normatively, this Article addresses the implications of stakeholder enforcement for how lawyers and scholars imagine the international legal order. It answers two questions exposed by the phenomenon of stakeholder enforcement: (1) Is it “enforcement”? and (2) When is it preferable to courts or political processes? It answers the first question by adopting an interdisciplinary approach to contextualize stakeholder enforcement against traditional international law enforcement practiced by courts and intergovernmental political processes. Despite their differences in form, all three approaches qualify as enforcement because they increase enforcement’s benefits while lowering its associated costs. This Article answers the second question by using comparative institutional analysis to explore how well the three enforcement strategies achieve the following functions: deterrence, punishment, and reparations. This Article concludes that stakeholder enforcement is especially valuable for deterrence but has limited value for punishment and almost no value for reparations to victims
Defense Against the Dark Arts: The Diversity Rationale and the Failed Affirmative Defense of Affirmative Action
Get PDFOver the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by accounting for bias in admissions measures like grades, standardized testing, and letters of recommendation which are the products of racial bias. Given this fact, affirmative action is neither a racial preference nor a form of “benign” racial discrimination. Instead, affirmative action acts as a corrective function.
This Article argues that the Supreme Court’s dismantling of affirmative action in Students for Fair Admissions v. Harvard (“SFFA v. Harvard”) was not solely the work of conservatives. Advocates of affirmative action implemented an over forty-year, weak affirmative defense strategy that centered diversity and treated race conscious remedies as a form of preferential treatment. This Article discusses how portions of the SFFA decision that are critical of the diversity rationale align with principles of racial equality. Additionally, this Article discusses equality, the critiques of the diversity rationale, and calls for advocates of affirmative action to abandon diversity in the wake of SFFA
From Intersectionality to Allyship: Bridging the Gaps
Get PDFProfessor Tsedale Melaku delivered the annual Leslie Devan Smith, Jr. Lecture at W&L Law on April 4, 2024. The title of her talk was “From Intersectionality to Allyship: Bridging the Gaps.” The lecture took place at 1:00 in the Millhiser Moot Court Room, Sydney Lewis Hall on the campus of Washington and Lee University. The event was free and open to the public.
Dr. Melaku is a sociologist and an assistant professor of management at the Zicklin School of Business, Baruch College (CUNY). She is the author of You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism (2019). The book reflects the emphasis of her scholarly interests in race, gender, class, workplace inequities, systemic racism, intersectionality, organizations and diversity. You Don’t Look Like a Lawyer was selected for the 2020 Eastern Sociological Society (ESS) and Society for the Study of Social Problems (SSSP) Author Meets Critics book salons.
As part of her visit, Melaku also participated in a panel discussion with faculty and students about her book on April 3 in the main reading room of the law library
Letting the Kids Run Wild: Free-Range Parenting and the (De)Regulation of Child Protective Services
Get PDFFamilies in the United States suffer from a removal epidemic. The child welfare framework allows unnecessary and harmful intervention into family and parenting matters, traditionally left to the discretion of the parent. Many states allow Child Protective Services (“CPS”) to investigate, intervene, and permanently separate a child from their parents for innocuous activities such as letting the child play outside unattended. This especially affects low-income and minority families.
To prevent CPS from unnecessarily intervening in a family’s decision to let their children engage in independent, unsupervised activities, Utah passed a “free-range” parenting act (“Act”) in 2018. The Act explicitly excludes independent, age-appropriate activities from the definition of neglect. This Act has remained largely unexamined: whether the passage of the free-range parenting law has resulted in a decrease of non-supervision cases referred to and substantiated by CPS is unclear. It is also unclear whether free-range parenting laws are a viable solution to the issue of unnecessary and harmful state intervention, in general.
This Note explores whether the free-range parenting law passed in Utah in 2018 has led to any discernible reduction in non-supervision cases and removals. Since the statistical analysis has significant limitations, the Note then takes a more general approach in examining whether these laws address the causes of unnecessary state intervention. The Note finds that many free-range parenting laws fail to address larger issues in the child welfare system and tend to mainly benefit middle-class and high-income families. A solution will likely require a concerted effort by all three branches of the government. It is imperative that efforts to pass free-range parenting laws are not abandoned but rather utilized for bigger and more equitable change
Restorative Constitutionalism
Get PDFCass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at many moments in U.S. history, including in both the Trump and Biden administrations. We survey examples of restorative constitutionalism both inside and outside the United States and show that it is a powerful and varied mode of change that can facilitate popular and elite consensus and repair damage wrought by anti-democratic political actors. Restoration is not without risks: it may restrict the horizons of constitutional imagination and be abused for authoritarian ends. Nonetheless, progressives would be well-served by engaging with restorative constitutional discourse, rather than treating it as a trap and allowing it to be monopolized by conservative constitutionalists
Civil Means to Criminal Ends
Get PDFThe divide between the civil and criminal legal systems is one of the most fundamental distinctions in American law. There are laws, however, that do not fit clearly into either category and the Supreme Court’s jurisprudence on how to categorize these statutes has been murky. Crime-free rental housing ordinances, which encourage or coerce private landlords into evicting tenants for a single incident of criminal activity that does not need to result in a conviction, are an example of the laws that occupy this middle ground. Local legislatures designate these laws as civil statutes and use them as a means to accomplish one of the same ends as the criminal legal system—the removal of undesirable people from the community—but without the need to comply with the more stringent constitutional rights and protections that criminal defendants are entitled to. Tenants facing eviction under crime-free rental housing ordinances must confront allegations of criminal activity without the protections of the Fourth Amendment exclusionary rule, the Sixth Amendment right to counsel, or the expectation that the criminal activity be proven beyond a reasonable doubt. This Article argues that, given the severe consequences that individuals and communities suffer as a result of eviction, including the racial justice implications, legislatures and courts should consider designating evictions under crime-free rental housing ordinances as quasi-criminal matters, thereby ensuring better protection of tenants’ constitutional rights