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Executive Clemency and Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders
No full textThe Four Horseman of the New Separation of Powers: The Environmental Law Implications of West Virginia, Sackett, Loper Bright, and Corner Post
No full textThis Article explores how several of the Supreme Court’s most recent environmental decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—will shift the constitutional balance of power, and how the polity might respond. Under the pretense of safeguarding legislative power, they consolidate judicial power to decide regulatory issues formerly delegated by the legislature to executive agencies. In so doing, the Court weakened specific environmental laws protecting air, water, and fisheries but also regulatory governance more broadly, by rejecting implementing regulations until Congress acts to specifically authorize them. Corner Post v. Federal Reserve furthers the deregulatory project by facilitating challenges to even time-honored regulations on these new grounds. Yet in an era in which Congress can hardly pass a budget, let alone authorize specific agency rules, the functional impact of these decisions is to shift power over environmental and other regulations to the Supreme Court itself. The decisions have the potential to viscerally weaken the effectiveness of federal environmental law, with similar ramifications for any realm of law that depends on specialized expertise in design, implementation, or enforcement—especially West Virginia’s “major questions doctrine,” which requires express legislative approval of any rule implicating matters of major political or economic importance, and Loper Bright’s rejection of the Court’s forty-year old Chevron doctrine prescribing judicial deference to an agency’s reasonable interpretation of the congressional statute it implements. Eroding the reach of critical statutes like the Clean Air and Water Acts while eviscerating the administrative rulemaking that provides the core infrastructure of federal environmental law in general, these cases represent—if not the Four Horsemen of the Apocalypse—at least four very serious portents of what may follow in the years to come. While this is an admittedly confusing moment to parse the constitutional separation of powers, it is critical to recognize how these moves by the Supreme Court undermine interbranch checks and balances—even as we turn to the same Court to respond to unprecedented assertions of executive authority by the new President. Combining scholarly and practical insights, this Article provides a roadmap for thinking about the Four Horsemen academically and responding to them politically. After reviewing the decisions themselves, it assesses their impacts on the constitutional separation of powers both horizontally and vertically. Horizontally, they shift power from agencies to courts, helping to prompt political proposals to curb the Court’s growing power, including legislative reversals of Horsemen decisions, jurisdiction stripping acts, and even a constitutional amendment to end lifetime appointments for Supreme Court justices. Vertically, they shift power toward state and local governance while simultaneously disempowering their ability to effectively pursue their extraterritorial concerns through intergovernmental bargaining, by weakening federal agencies’ flexibility to respond to subnational initiatives. It then considers ways to push back against the Horsemen model of judicial interpretive supremacy by disaggregating interpretive authority over different constitutional questions, retaining judicial primacy on adjudicating rights and procedural matters while loosening it over certain separation of powers matters. Inspired by theoretical accounts of negotiated federalism and interbranch structural bargaining, it considers analogous possibilities for sharing interpretive authority over separation of powers matters through judicial deference to consensually negotiated exchange not only between state and federal actors but between the political branches of the federal government, constrained by judicial review for core rule-of-law values. Finally, it considers how courts and legal advocates may respond to this changed legal environment in the near and far terms, offering advice for drafters and advocates involved in legislation, regulation, and litigation and considering how the changes wrought by the Four Horsemen may rebound in unexpected directions in the new Trump administration
Exempt but Not Immune: Why the Section 501(c)(3) Tax Exemption Amounts to Federal Financial Assistance and Demands that Private Schools Comply with Title IX
No full textTitle IX of the Education Amendments Act of 1972 (Title IX) prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance and ensures that federal funds are not used to support discriminatory practices. Independent, non-public, educational institutions try to escape compliance with Title IX, claiming they do not receive federal financial assistance and are not subject to Title IX. While they may not receive a direct federal grant or loan, many of these independent schools are organized as nonprofits and are exempt from federal income taxes pursuant to section 501(c)(3) of the Internal Revenue Code. As a result, these schools save significant amounts of money that they would otherwise have to spend on taxes, while diminishing the federal government’s tax revenue. There is an open question as to whether an educational institution’s 501(c)(3) tax-exempt status constitutes federal financial assistance and triggers Title IX liability. In July 2022, two federal district courts found that independent schools were subject to Title IX based on their 501(c)(3) status. However, in April 2024, the Fourth Circuit became the first federal appellate court to consider this question and found that a school’s tax-exempt status does not constitute “Federal financial assistance” and thus does not make it subject to Title IX. This Note argues that educational institutions that maintain tax-exempt status do in fact receive federal financial assistance by virtue of the tax benefit they receive and must comply with Title IX. After presenting the split in opinion on whether tax-exempt status triggers liability under Title IX, this Note conducts a statutory analysis of “Federal financial assistance.” This Note first considers the text of the statute, applying various tools of statutory analysis to conclude that the plain text of Title IX extends to tax-exempt organizations, including tax-exempt schools. This Note also uses legislative history to further discern congressional intent and demonstrate that Congress intended Title IX to be afforded a broad scope and should not be limited to exclude tax-exempt status
The Green Energy Landfill: Regulatory Approaches to the Disposal of Decommissioned Wind Turbine Blades
No full textMasculinities And/Under Protracted Occupation
No full textThere is a dearth of conceptual and practical thinking about the diversity and forms of masculinity in occupation sites and what the implications of these manifestations are for the experience of conflict and ultimately its resolution. In order to address this gap, this chapter examines how protracted military occupation shapes conceptions and practices of masculinity, both civilian and military, in the Occupied Palestinian Territories (OPT). The chapter explores the ways in which masculinities enable, sustain, function, and are shaped by the practices of occupation and, in turn, play a central role in the construction of that practice. It analyses the regulation of space through the mechanism of checkpoints, controlled and operated by the occupying (Israeli) military, and through which men, boys, women, and girls must traverse to undertake the most mundane aspects of everyday life. The chapter views the checkpoint interface as capturing a set of experiences, realities, and harms that engage, construct, undo, and harm masculinities. While the focus is primarily on the experiences and navigation of occupation by Palestinian men, the chapter highlights the relational quality of men’s lives and, at key points, highlights the ways in which both Palestinian men and women co-experience gendered harms
Suspecting with Data
Full text linkOur pooled consumer big data, such as the pictures we post or the location history and keyword search trails we leave, are generating new ways to solve crimes. Much of the commentary on big data search strategies such as keyword, geofence, and facial recognition searches fixate on Fourth Amendment search and seizure issues rather than evidentiary safeguards. This Article breaks new ground by framing evidentiary guardrails for big data searches to reduce the harms of erroneous arrests, redress secrecy, and counteract the mystique of machine infallibility. Advancing beyond over-reliance on Fourth Amendment doctrine, this Article illuminates how evidence law and procedures are better suited to address concerns over inaccuracy, overbreadth, and opacity surrounding big data search strategies. The Article offers three proposals. First is requiring corroboration before big data search strategies can be the basis to arrest or convict a person, thus updating the concept of probable cause for changing technologies of proof. Second are pretrial notice, disclosure, and reliability hearings to pierce the secrecy surrounding the use of big data search strategies and to permit effective defense challenges. Third is deploying expert witnesses on the reliability concerns surrounding the evidentiary fruits of big data analytical techniques to correct the mystique of machine infallibility and the risk of factfinders overweighing match evidence
The Supreme Court’s Opinion in SEC v. Jarkesy Has the Potential To Be Extremely Destructive
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