DACA Rescission: Fight Procedure Rather Than Constitutionality

Anna Saunders*

On September 5, 2017, the Trump Administration announced it will end the Deferred Action for Childhood Arrivals (DACA) program,[1] a program established under the Obama Administration in 2012.[2]  However, several states and DACA beneficiaries have already filed lawsuits alleging that President Trump’s decision was “unconstitutionally motivated by anti-Mexican and anti-Latino animus.”[3]  The DACA program allows young, unauthorized immigrants who grew up in the United States to obtain work permits and . . . .

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* Candidate for Juris Doctor, Cumberland School of Law, Class of 2019. Junior Editor, Cumberland Law Review. Bachelor of Science in Accounting and Finance, University of Alabama, Class of 2016.

[1]     Jefferson B. Sessions III, U.S. Att’y Gen, U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017) [hereinafter Sessions Remarks], https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca.

[2]     See Memorandum from Janet Napolitano, Sec’y, Dep’t Homeland Sec., to David V. Aguilar, Comm’r, U.S. Customs & Border Prot., et al. 1-3 (June 15, 2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.

[3]     Keshner, Andrew, Lawyers fight to save Mexican native who lost work permit granted through DACA, NY Daily News (Sept. 5, 2017, 8:06 PM), http://www.nydailynews.com/new-york/lawyers-fight-save-mexican-native-lost-daca-work-permit-article-1.3471816.

EMBRACING FRAGILITY IN OUR DATA: A CAUTIONARY EXAMPLE FROM RESEARCH ON THE FCPA AND VOLUNTARY DISCLOSURE

Peter Leasure*

  1. INTRODUCTION

     Enacted by the United States in 1977 as part of the Security Exchange Act of 1934,[1] the Foreign Corrupt Practices Act (FCPA) was one of the first of its kind in the area of foreign official anti-bribery legislation.[2] Despite increasing levels of enforcement[3] and a litany of scholarly critiques, statistical data and analysis on the FCPA is hard to find. In fact, the Organization for Economic Cooperation and Development (OECD) has noted this gap. In a Phase 2 Report, the OECD stated:

[T]here are no clear, documented, formal processes between agencies to underpin the vital exchange of information and reporting of suspected violations, and a corresponding absence of statistics.  This results in a lack of transparency and of data, which, if captured, could serve useful analytical purposes in reviewing the workings of the FCPA.

     To fill this gap, some authors have begun to address various FCPA empirical questions with statistical analysis by building their own datasets.[5]  Unfortunately, some of these studies suffer from severe methodological flaws.

     The current paper aims to critique one of these studies[6] which explored whether companies with FCPA transgressions received a benefit to voluntary disclosure.  The goal of this paper is to show that those involved in FCPA research, especially those publishing legal journals, could greatly benefit from a better understanding of statistics.  Though this paper will demonstrate that the previous study possesses several flaws, this author does not argue for the abandonment of statistical research in FCPA research.  On the contrary, the present study shows that a better understanding of statistics is indeed vital for FCPA research to progress. . . .

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Suggested Citation:
Peter Leasure, Embracing Fragility in Our Data: A Cautionary Example from Research on the FCPA and Voluntary Disclosure, Cumb. L. Rev. Online (Aug. 28, 2017, 5:00 pm), https://cumberlandlawreview.com/2017/08/28/embracing_fcpa

* Peter Leasure is a Ph.D. candidate in the Department of Criminology and Criminal Justice at the University of South Carolina. His research focuses on corporate compliance and collateral consequences of conviction. His work has appeared in journals such as the Journal of Financial Crime, Journal of Experimental Criminology, Journal of Money Laundering Control, and Yale Law and Policy Review Inter Alia.

[1]  See 15 U.S.C. §§ 78m(b), 78dd-1, 78dd-2, 78dd-3 (2006).

[2] See Mike Koehler, The Facade of FCPA Enforcement, 41 Geo. J. Int’l L. 907, 911-13 (2010). For reviews of the statutory provisions of the FCPA and its penalties, see Elizabeth Spahn, International Bribery: The Moral Imperialism Critiques, 18 MINN. J. INT’L L. 155, 157 (2009).

[3] TRACE International Global Enforcement Report (2014), available at http://www.traceinternational.org/wp-content/uploads/2014/08/TRACE-Global-Enforcement-Report-2014.pdf.

[4] Org. for Econ. Co-operation and Dev., Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combatting Bribery in International Business Transactions, 27 (October 2002), https://www.oecd.org/daf/anti-bribery/anti-briberyconvention/1962084.pdf.

[5] See generally Bruce Hinchey, Punishing the Penitent: Disproportionate Fines in Recent FCPA Enforcements and Suggested Improvements, 40 Pub. Cont. L.J. 393 (2011); Annalisa Leibold, Extraterritorial Application of the FCPA Under International Law, 51 Willamette L. Rev. 225 (2014).

[6] See generally Hinchey, supra note 4.

SCOTUS Finds Disparagement Clause of the Lanham Act an Unconstitutional Violation of Free Speech

By: Christian Feldman[1]

On June 19th 2017, in an opinion written by Justice Alito, the Supreme Court of the United States unanimously determined that the disparagement clause (the “Clause”) of the Lanham Act was an unconstitutional violation of free speech.[2]  The Clause allowed trademarks to be refused if they could “disparage . . . or bring . . . into contempt” any “persons, living or dead.”[3]  Most are probably familiar with the Clause due to the controversial cases involving the NFL’s Washington Redskins.[4]  The Court’s holding in Matal v. Tam is a noteworthy triumph for both The Slants and the Washington Redskins.

The case involves an Asian-American rock band named “The Slants.”[5] The band’s lead singer, Simon Tam, applied to the U.S. Patent and Trademark Office (“PTO”) seeking to register the mark “THE SLANTS.”[6]  The PTO denied the application, reasoning that the term was derogatory towards persons of Asian descent.[7]  On review, the Court noted that when deciding if a trademark is disparaging, “an examiner at the PTO generally applies a two-part test.”[8]  The examiner must first consider “the likely meaning of the matter in question” and second “whether that meaning may be disparaging to a substantial composite of the referenced group.”[9]  During this inquiry, to determine the likely meaning of the mark, the examiner must look at the goods and services, as well as other factors such as how the mark is used in commerce.[10]  “If that meaning is found to refer to identifiable persons, institutions, beliefs, or national symbols,” then the examiner moves to the second prong.[11]  The Court explained that a “substantial composite” does not necessarily mean a majority.[12]

The PTO found that the term “SLANTS” derogatorily referenced peoples of Asian descent.[13]  Accordingly, the second prong of the analysis was satisfied. The PTO relied upon dictionary definitions, and actual evidence of offended persons as evidence of disparagement – indeed one of the band’s performances had been canceled due to public backlash over their name.[14]   For such reasons, the PTO examiner rejected Tam’s application.[15]

Tam appealed the rejection to the Trademark Trial and Appeal Board (“T.T.A.B.”), which affirmed the examining attorney’s refusal.[16]  Tam subsequently appealed to the Federal Circuit which affirmed; however, on a rehearing en banc, the Federal Circuit vacated and remanded, finding the Clause to be unconstitutional.[17]  The Court explained that the Federal Circuit found the Clause engaged in “view-point based discrimination” regulating expressive components of trademarks, and was therefore unable to withstand either strict or intermediate scrutiny.[18]  The Federal Circuit rejected the PTO’s arguments that trademarks constitute government speech and/or are “a form of a government subsidy.”[19]  Thus, the Supreme Court granted certiorari.[20]

Prior to resolving the Clause’s constitutionality, the Court had to first address Tam’s argument that “the clause does not reach marks that disparage racial or ethnic groups.”[21]  Tam maintained that the Clause could only be applied to marks that disparaged “natural and juristic persons” and, accordingly, did not pertain to racial groups.[22]  Although the Court had already denied certiorari on this question, the Court was obligated to answer, as it was potentially outcome determinative.[23]  Thus, “accepting Tam’s statutory interpretation would resolve this case and leave the First Amendment question for another day” and “[the Court] ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.”[24]  Nonetheless, the Court rejected this narrow interpretation, instead finding that “Tam’s argument [was] refuted by the plain terms of the disparagement clause.”[25]  In fact the Clause applies not only to persons, but also to “institutions and beliefs.”[26]  Justice Alito plainly stated, “it is clear that the prohibition against registering trademarks ‘which may disparage . . . persons’ prohibits registrations of terms that disparage persons who share a common race or ethnicity.”[27]  Therefore, determination as to the Clause’s First Amendment implications was justifiably ripe.

Addressing the issue of constitutionality, the Court tackled three primary contentions; any of which, separately and independently, would remove the First Amendment safeguards or reduce the inquiry to the lower rational-basis review.[28]  Those three arguments were “(1) that trademarks are government speech, not private speech, (2) that trademarks are a form of government subsidy, and (3) that the constitutionality of the disparagement clause should be tested under a new ‘government program’ doctrine.”[29]

In regards to the first contention, the Court declined to grant trademark registration the “immunity” afforded to government speech.[30]  The Court found that trademarks “are not dream[t] up by the Federal Government” nor does the PTO edit trademarks.[31]  The Court pointed out that if trademarks constitute government speech, “the Federal Government is babbling prodigiously and incoherently” and is “unashamedly endorsing a vast array of commercial products”— not to mention the vast contradictory viewpoints the government would express.[32]  The Court found that if it were to accept this argument, then copyright registrations would also lose their First Amendment protections.[33]  Therefore the Justices rejected the PTO’s argument and held that “[t]rademarks are private, not government speech.”[34]

The Court then turned to the PTO’s next argument, that “this case is governed by cases in which this Court has upheld the constitutionality of government programs that subsidized speech expressing a particular viewpoint.”[35]  Interestingly, this is a “notoriously tricky” constitutional law issue.[36]  If the Court found trademark registration akin to a government subsidy, it would allow the PTO to circumvent First Amendment protections by allowing the government to deny registration of marks with viewpoints that it does not agree with.[37]  Again, the Court refused to extend the doctrine.  Notably, they found the PTO’s supporting precedent distinguishable from the current situation; specifically because those situations involved cash subsidies.[38]  The Court rejected the claim that cash subsidies were analogous to a trademark registration’s substantial non-monetary benefits.[39]  Indeed, most government services afford some type of non-monetary benefit, and furthermore, trademarks are not the only form of government registration.[40]  Accordingly, the Court rejected this reasoning.

The Court then addressed the Government’s final argument–that the restriction be allowed under a new “government-program” doctrine.[41]  In a sense, the new doctrine, if accepted, would be a merger between the two aforementioned doctrines, and would further reduce Free Speech protections from government agencies.[42]  The Government claimed that the situation at hand was similar to cases[43] where laws allowing public employers to automatically deduct fees from non-union employees to be used by unions in collective bargaining negotiations (but not in political affiliation matters) had been upheld.[44]  Nonetheless, the Court rejected this assertion,[45] finding cases where the government created a public forum for private speech a more appropriate guiding influence.[46]  They noted that in such cases, the Constitution allowed the government to utilize “content- and speaker-based restrictions. . . .”[47]  Notwithstanding this fact, the Court explained, “viewpoint discrimination is forbidden.”[48]  Importantly, “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”[49]  As such, the proposed “government program” doctrine was not a sufficient manner in which to analyze the disparagement clause.

After deciding that trademarks are appropriately subject to First Amendment protection, the Court then turned its attention to the level of review they should utilize.[50]  That is, should trademarks be treated as commercial speech, receiving a less burdensome review, or conversely, as non-commercial speech, subject to a more stringent review?[51]  However, this debate was rendered moot as the Court found that the Clause could not even pass the lesser commercial speech standard, known as the Central Hudson review.[52] Under this analysis the Clause would have to “serve a substantial interest, and . . . be narrowly drawn.”[53]  The Clause was argued to serve two interests: (1) preventing “underrepresented groups from being bombarded with demeaning messages in commercial advertising”; and (2) “protecting the orderly flow of commerce.”[54]  The court disregarded the first contention by saying that even though the Government clearly has an interest in preventing hateful speech, such speech is central to the First Amendment.[55]  This means that the First Amendment’s core purpose is to prevent the Government from being able to censor this type of speech. Indeed, “the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate.”[56]

The Clause failed the second portion of the test, according to the Court, as it was overly broad.[57]  The Court determined that it applied to “any person, group, or institution.”[58]  Additionally, it protected persons both living and dead, and such speech is very unlikely to disrupt commerce.[59]  In finality, the Court deemed this ruling to be proper policy.  They cautioned against the fine line between commercial speech, and non-commercial speech, in trademarks,[60]  warning that “commercial speech may be cleansed of any expression likely to cause offense.”[61]  Thus the ruling of the Federal Circuit was affirmed and the Disparagement Clause was struck as facially unconstitutional.[62]

Naturally this ruling is of national relevance. “The Slants” are the obvious winners, however the Washington Redskins, and free speech proponents will also be pleased with the outcome.  The Redskins, who are currently appealing the withdrawal of their trademark registration, will certainly be afforded new ammunition to regain what was lost.[63] In light of these national implications, the Cumberland Law Review will follow the ruling’s effect in future cases and keep its readers informed should there be momentous updates.

[1] Candidate for Juris Doctor, Cumberland School of Law 2018; Bachelor of Arts, College of Charleston.

[2] See Matal v. Tam, 137 S. Ct. 1744, 1751 (2017) (“We now hold that this provision violates the Free Speech Clause of the First Amendment.”).

[3] 15 U.S.C. § 1052(a)(2012). See also Tam, 137 S. Ct. at 1751. Trademarks may also be refused for being “merely descriptive, or deceptively misdescriptive” or if the mark “is so similar to an already existing registered trademark or trade name that it is likely to cause confusion.” Tam, 137 S. Ct. at 1753 (internal citations omitted). These are codified in 15 U.S.C. § 1052(e)(1) and 15 U.S.C. § 1052(d), respectively. See id.

[4] See generally Pro Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439 (E.D. Va. 2015); Pro-Football, Inc. v. Harjo, 565 F.3d 880 (Ct. App. D.C. 2009). Indeed, Pro-Football, Inc. even submitted a brief on the matter as amicus curiae on behalf of “The Slants.” See Tam, 137 S. Ct. at 1758.

[5] Tam, 137 S. Ct. at 1751.

[6] Id. at 1747. Although trademarks can be used in commerce without federal registration, doing so provides a number of advantages and protections. Specifically, “it serves as constructive notice of the registrants claim of ownership”; is prima facie evidence of validity of the mark; and makes the mark incontestable after five years of registration. See Tam, 137 S. Ct. at 1753 (quoting 15 U.S.C. § 1072).

[7] Id. at 1751.

[8] Tam, 137 S. Ct. at 1753 (internal quotations omitted).

[9] Id. at 1754 (quoting Trademark Manual of Examining Procedure § 1203.03(b)(i) (Apr. 2017)).

[10] Id. at 1753.

[11] Id.

[12] Id. at 1754.

[13] Id.

[14] Tam, 137 S. Ct. at 1754.

[15] Id.

[16] See In re Tam, 108 U.S.P.Q.2d (West) 1305, *8 (T.T.A.B. 2013) (“We affirm the refusal.”). Specifically, the T.T.A.B. applied the Clause’s established two-pronged test. Id. at *4. They found that (1) the likely meaning of “THE SLANTS” to mean a “derogatory reference to people of Asian descent”; and (2) it was disparaging to a substantial composite of persons. Id. at *5, *7.

[17] In re Tam, 808 F.3d 1321, 1357 (Fed. Cir. 2015) (en banc) (“We hold that the disparagement provision of § 2(a) is unconstitutional because it violates the First Amendment. We vacate the Board’s holding that Mr. Tam’s mark in unregistrable, [sic] and remand this case to the Board for further proceedings.”).

[18] Tam, 137 S. Ct. at 1754.

[19] Id.

[20] Lee v. Tam, 137 S. Ct. 30 (2016) (granting certiorari).

[21] Tam, 137 S. Ct. at 1755.

[22] Id.

[23] Id.

[24] Id. (quoting Spector Motor Serv. Inc, v. McLaughin, 323 U.S. 101, 106 (1944)).

[25] Id. at 1756.

[26] Id.

[27] Tam, 137 S. Ct. at 1756 (internal citations omitted).

[28] Id. at 1757.

[29] Id.

[30] Id. Importantly “government speech” is not limited by the First Amendment. Tam, 137 S. Ct. at 1757. The Court has noted that “it is not easy to imagine how government could function if it were subject to the restrictions that the First Amendment imposes on private speech.” Id. (quoting Pleasant Grove v. Summum, 555 U.S. 460, 467 (2009)) (internal quotation marks omitted).

[31] Id. at 1758.

[32] Id. at 1759 (“[I]f trademarks represent government speech, what does the Government have in mind when it advises Americans to ‘make. believe’ (Sony), ‘Think Differently’ (Apple) . . . or ‘Have it Your Way’ (Burger King)?”).

[33] Tam, 137 S. Ct. at 1760.

[34] Id. More specifically, the Court distinguished the case law on which the Government relied to establish trademarks as government speech. Tam, 137 S. Ct. at 1759-61.  The Court found that the cases primarily involved scenarios in which the Government was the entity registering the trademark, as opposed to a private individual or business. See id. at 1760. Allowing trademark registration to operate as government speech would “constitute a huge and dangerous extension of the government-speech doctrine.” Id.

[35] Tam, 137 S. Ct. at 1760.

[36] Id.

[37] Id. at 1761.

[38] Id.

[39] Id.

[40] Tam, 137 S. Ct. at 1761 (again noting how doing so would implicate far more governmental activities than just trademarks, which the Court found to be a dangerous limitation of Free Speech protections).

[41] Id.

[42] Id. However, the doctrine is not simply a merger of the “government speech” or “government subsidy” doctrines as it incorporates a third element derived from automatic deduction of union dues from non-union employee cases. Id. at 1761-62.

[43] Specifically, two cases: Davenport v. Washington Ed. Assn., 551 U.S. 177 (2007); Yasura v. Pocatello Ed. Assn., 555 U.S. 353 (2009).

[44] Tam, 137 S. Ct. at 1762.

[45] Id. (“[T]hose cases occupy a special area of First Amendment case law, and they are far removed from the registration of trademarks.”).

[46] Id. at 1763.

[47] Id.

[48] Id. (internal quotation marks omitted).

[49] Id. (quoting Street v. N.Y., 394 U.S. 576, 592 (1969))(internal quotation marks omitted). The court determined that here, the Clause clearly was viewpoint discrimination even though it applied evenhandedly to all groups. Tam, 137 S. Ct. at 1763. This is so because it denies registration “to any mark that is offensive to a substantial percentage of the members of any group.” Id. It seemingly discriminates against the viewpoint of the offending speaker. See id.

[50] Tam, 137 S. Ct. at 1763-64.

[51] Id. at 1764. The Government maintains that trademarks are commercial and are regulated to ensure stability in intrastate commerce. Id. On the other hand, Tam argued that his trademark extends beyond mere commercial speech, and at its core is expressive, i.e. “these trademarks do not simply identify the source of a product or service but go on to say something more. . . .”).

[52] Id.

[53] Id. (internal quotation marks omitted).

[54] Id. This is the Court’s generalization of the interests offered in both the Government’s and amicus briefs. See id.

[55] Tam, 137 S. Ct. at 1764.

[56] Id. (quoting U.S. v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J. dissenting))(internal quotation marks omitted).

[57] Id. at 1765. (“[I]t goes much further than is necessary to serve the interest asserted.”).

[58] Id. (emphasis in original).

[59] Id.

[60] Id.

[61] Tam, 137 S. Ct. at 1765.

[62] Id. Justice Gorsuch did not participate in the opinion. Additionally, Justice Kennedy, wrote a concurring opinion in which Justices Ginsberg, Kagan, and Sotomayor joined in.

[63] Appeal of Pro-Football, Inc. v. Amanda Blackhorse, 112 F. Supp. 3d 439 filed on August 6, 2015 to the 4th Circuit Court of Appeals.

 

Ginsburg Makes Strides Towards Gender Equality in Sessions v. Morales-Santana

By: Wesley Walker[1]

     On June 12, 2017, the United States Supreme Court issued an opinion in Sessions v. Morales-Santana,[2] written by Justice Ginsberg, and held part of the Immigration and Nationality Act (hereinafter the “Act”) to be unconstitutional.[3]  The Act was designed to set a standard by which children could obtain citizenship if one parent was a U.S. citizen but the other was not.[4]  For married couples, the Act contains a “ten/five” rule whereby the U.S. citizen parent must have lived in the United States for ten years before the child’s birth, at least five of which were after the parent turned fourteen years old.[5]  One section[6] of the Act made the ten/five rule applicable to unmarried U.S. citizen fathers, but an additional subsection[7] provided an exemption from this requirement for unmarried U.S. citizen mothers.  Under the Act, a child born out of wedlock to a female U.S. citizen would gain citizenship if the mother lived in the United States for one continuous year, regardless of other factors.  However, if a male U.S. citizen and a female non-citizen conceived a child, that child could only receive U.S. citizenship if the father had lived in the United States for ten years over the course of his life, and for five years after he turned fourteen.

     In Morales-Santana, Luis Ramon Morales-Santana challenged the constitutionality of the ten/five rule claiming it unjustly classified him as an alien, which was one of the factors that led to his deportation.[8]  His classification as an alien stemmed from Morales-Santana’s father, José Morales, not satisfying the five-year requirement after reaching the age of fourteen.[9]  José Morales moved from Puerto Rico only twenty days before his nineteenth birthday and conceived Luis with a non-citizen.[10]  José held Luis out as his own child, married his mother, and added his name to Luis’s birth certificate.[11]  Despite these facts, an immigration judge denied Luis’s claim for citizenship and in turn deprived his father of equal protection.[12]  On review, the Board of Immigration Appeals affirmed the immigration judge’s decision but was later overturned by the Second Circuit.[13]  The case was remanded, and a petition for certiorari was granted because a circuit split existed on the issue of derivative citizenship.[14]

     At the outset of the opinion, Justice Ginsberg discussed the requirements Congress enacted to acquire U.S. citizenship.[15]  She then traced the family history of Morales-Santana that led to the unique and precarious situation surrounding his putative citizenship.[16]  Justice Ginsburg noted that this allegation of a violation of the Equal Protection Clause of the U.S. Constitution was unique since Morales-Santana claimed that the gender-based discrimination occurred against his father and not himself.[17]  Though the traditional approach is that “[one] cannot rest his claim to relief on the legal rights . . . of third parties”[18] an exception to the rule exists when “the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor’s ability to protect his own interests.”[19]  Ginsberg discussed both of these factors briefly and concluded they were both met due to the father-son relationship, and the fact that José Morales was deceased.[20] For that reason, the Court held that Morales-Santana was the best proponent of his father’s claim.

     Ginsberg took an almost sarcastic approach when discussing the legislative history of the provision that Morales-Santana challenged. Discussing a line of past cases, she described the heightened level of scrutiny that gender-based legislation must satisfy in order to meet the guarantee of equal protection.[21]  Ginsberg held that this case was no different and there must be an “exceedingly persuasive justification” for the difference between citizenship obtained through a mother and a father under the Act.[22]  This justification, she discussed, must be an important governmental objective, which is served by a discriminatory law that is narrowly tailored to achieve that objective.[23]  However, she noted that this interest, viewed post-Obergefell, must be served in the present day, not just in the past: “[we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.”[24]

     The section at issue has always been a contentious subject, as are any tools used to legislate the marital relationship. At the time of this code’s inception, a woman was thought to be subservient to a man, and presumed to be the guardian of all children born to her.[25]  In 1940, Congress struck the father-controls assumption and simultaneously codified the mother-as-sole-guardian perception concerning unwed parents.[26]  At that time, fathers were deemed less qualified than mothers to raise a child.[27]  However, as time has passed, Ginsberg surmised that laws grounded in sexist and “anachronistic” language glaringly fail the equal protection guarantee post-1971.[28] In reading Ginsburg’s analysis, her passion for true “equal protection under the law” jumps out at the reader from the opinion. For such reasons, she, along with all the other Justices, concurred that these sections violated the equal protection guarantee.[29]

     Although the Morales-Santana case had a favorable outcome, Morales-Santana himself will not benefit from this decision. The Court held that jurisprudence, precedent, and legislative intent would run contrary to a decision in his favor.[30]  In exercising judicial restraint, and in classic Justice Ginsberg fashion,[31] she sided with the rationale of the U.S. Government in extending the ten/five requirement to children born to unmarried U.S. female citizens.[32]

     Many will see this as a landmark case as Justice Ginsberg’s opinion holds that “disparate criteria [based upon gender] . . . cannot withstand inspection under a Constitution that requires the Government to respect the equal dignity and stature of its male and female citizens . . . .”[33]  Justices Thomas and Alito joined in a concurrence, stating that “discrimination itself . . . perpetuat[es] archaic and stereotypic notions  incompatible with the equal treatment guaranteed by the Constitution.”[34]  However, this “pass the buck” to Congress mentality to amend the code could have a disparate impact on children born out of wedlock, as there is no guarantee that Congress will address this issue swiftly or at all.  Others have commented that Ginsburg’s ability to fuse the gender equality standard with Obergefell’s “equal dignity” rationale to demand a justification for sex discrimination that comports with our contemporary sense of fairness is exceptionally forward thinking.[35]  This new standard could significantly hinder any individual or entity from citing a law that is based upon archaic ideals as a basis for a denial of equal protection.

     But what does this all mean? The figurative football is in Congress’ possession, and in congressional politics there is no delay of game. As this case highlights, immigration has and will continue to be at the forefront of the political and legal debates in our country. However, one thing is certain: in the case of Morales-Santana, Justice Ginsberg boldly advanced the cause of equal protection and liberty and justice for all.

[1] Cumberland School of Law, Candidate for Juris Doctor, May 2018.

[2] Sessions v. Morales-Santana, No. 15-1191, 2017 WL 2507339, at *1, *18 (U.S. June 12, 2017).

[3] 8 U.S.C. § 1409 (2012), invalidated by Morales-Santana, 2017 WL 2507339, at *18.

[4] See id.

[5] 8 U.S.C. § 1401(g) (2012).

[6] 8 U.S.C. § 1409(a). Referred to as the “ten/five rule” by the author.

[7] 8 U.S.C. § 1409(c).

[8]  See Morales-Santana, 2017 WL 2507339, at *6.

[9] See id.

[10] Id.

[11] Id. at *7.

[12] Id.

[13] Id.

[14] Morales-Santana, 2017 WL 2507339, at *7.

[15] See id. at *8.

[16] See id.

[17] Id.

[18] Id. at *8 (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)).

[19] Id. (quoting Kowalski v. Tesmer, 543 U.S. 125, 130 (2004)).

[20] Morales-Santana, 2017 WL 2507339, at *8 (U.S. June 12, 2017).

[21] Id. at *9.

[22] Id. (quoting United States v. Virginia, 518 U.S. 515, 531 (1996)).

[23] Id. (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)).

[24] Id. (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2603 (2015)) (alterations in original).

[25] Id. at *10.

[26] Morales-Santana, 2017 WL 2507339, at *11.

[27] Id.

[28] Id. at *9 (citing Califano v. Westcott, 443 U.S. 76, 84 (1979); see id. at 88–89 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers)). Accord United States v. Virginia, 518 U.S. 531-34 (1996); Califano v. Goldfarb, 430 U.S. 199, 206–07 (1977) (plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors’ benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648–53 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688–91 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76–77 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child’s estate).

[29] Id. at *19.

[30] Morales-Santana, 2017 WL 2507339, at *18.

[31] Using men to advance the cause of equal protection based upon gender discrimination.

[32] Morales-Santana, 2017 WL 2507339, at *19.

[33] Id. at *16.

[34] Id. n.21.

[35] Mark J. Stern, Ruth Bader Ginsburg Affirms the “Equal Dignity” of Mothers and Fathers, Slate (June 13, 2017, 12:54 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/06/sessions_v_morales_santana_ruth_bader_ginsburg_defends_gender_equality.html.

Alabama Workman’s Compensation Law Deemed Unconstitutional

By: Christian Feldman[1]

            On May 8, 2017 Jefferson County Circuit Court Judge Pat Ballard issued an Order declaring two Alabama statutes in the Workman’s Compensation Act unconstitutional.[2]  The statutes in question are Alabama Code § 25-5-68, and Alabama Code § 25-5-90.[3]  Alabama Code § 25-5-68 caps workman’s compensation for permanent partial disability (“PPD”) at $220.00,[4] while Alabama Code § 25-5-90 limits attorney’s fees to a maximum of 15% of the compensation awarded.[5]  In effect, this Order renders the entire act unconstitutional due to its inclusion of a non-severability statute.[6]

            Prior to deciding the issue of the merits of the motion, the court first recognized that the plaintiff had standing to bring the action.  The court relied on both Alabama case law and persuasive authority to reach this conclusion.[7]  The court found that the threatened harm sufficiently satisfied standing to bring a constitutional challenge.[8]

            The court then proceeded to analyze each statute independently.[9]  In its thorough review, the court found that Alabama Code § 25-5-68 failed by violating both the equal protection provisions and Article I, § 13 of the Alabama Constitution.[10]  Conceding that there was no suspect classification, the court utilized rational basis review.[11]  Despite the minimal standard of review, the court found that the statute failed to provide equal protection of the law in two distinct ways.  First, there was “no identifiable rational basis [to classify] injured workers . . . into a group that is entitled to indexed benefits . . . versus a group that is not entitled to indexed benefits . . . .”[12]  The PPD group was identified as the group not entitled to indexed benefits.  Furthermore, the law classifies PPD workers into a “$220 group” and a “sub-$220 group.”[13]  Thus, as the court notes, any PPD worker in the “$220 group” receives the capped compensation regardless of whether they earn $3,000 a week, or $350.[14]  “There cannot  conceivably  be any more arbitrary, capricious, irrational, or attenuated idea than telling both workers that ‘equal protection of the laws’ means that they each get the identical amount under those circumstances.”[15]  Therefore the court held this statute violated equal protection of the law.[16]

            Additionally, the court found that the statute failed Article I, § 13 of the Alabama Constitution.  The court utilized the test recognized in Fireman’s Fund American Insurance v. Coleman, establishing that any legislation which abolishes common-law actions must meet one of two requirements.[17]  The right relinquished must (1) have equivalent benefits, or (2) the legislation must eradicate a perceived social evil.[18]  The court found that neither prong had been met.  Indeed, the first failed because the established cap provides no equivalent benefit.[19]  Meaning that there was no quid pro quo, so to speak[20]  On the other hand, the second prong failed as the law is an arbitrary and capricious exercise of the police power.[21]  That is to say that there must be some reasonable relation between the legislation and the ends to be attained.[22]  However, if the cap had been indexed, so that it increased alongside the cost of living, it would pass this test.[23]  Accordingly, it was declared unconstitutional.

            The second statute in question caps the recoverable attorneys’ fees at 15% of the compensation awarded.[24]  Prior to its analysis, the court determined that the constitutionality question had not already been decided under Alabama law, and was thus appropriate for review.[25]  Previous Alabama precedent was distinguishable because individual’s participation under the Workman’s Compensation Act is not elective – i.e. its adherence is statutorily mandated.[26]  On further review, the court found the statute unconstitutionally violates both due process and separation of power.

In its analysis, the court utilized a recent Florida decision as persuasive authority and adopted their three-part test.[27]  The Florida Supreme Court, reviewing a fixed attorney fee opposed to a reasonable fee, held that to be upheld as constitutional (1) the legislature’s concern must be reasonably provoked by the possibility of abuse, (2) there must be a reasonable basis for the opinion that the legislation could protect against such abuse, and (3) if “the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption.”[28]  The court stated that laws do not afford due process when “they deny rights and benefits on the basis of facts presumed to exist and be true.”[29]  The court found that to be the case here.

The statute further failed a separation of powers challenge.  After an extensive review, the court came to a simple conclusion: determining the reasonableness of attorneys’ fees is a function of the judiciary, not the legislature.[30]  Although the court found the statute authorized judicial discretion to determine fees up to 15%, the court ultimately determined this to be an overstep on judicial autonomy.[31]

            Given the magnitude of this Order, Judge Ballard stayed the action for 120 days providing the legislature time to solve the issues of constitutionality.[32]  It is not likely the legislature will be able to resolve the dispute within the time frame, however.  Any appeal must be filed within 42 days of the date of the Order, and many have expressed interest in serving as amicus curiae in opposition to the Plaintiff.[33]  For now, the Order remains in effect.

            Cumberland Law Review will closely follow any future legislative or judicial action in response to Judge Ballard’s Order in Clowers v. CVS. Follow Cumberland Law Review on LinkedIn, Twitter, and Facebook for timely articles and legal analysis of both state and national case law.

Download Full Article Here

[1] Candidate for Juris Doctor, Cumberland School of Law, 2018; Bachelor of Arts, College of Charleston.

[2] See Clower v. CVS Caremark Corp., No. 01-CV-2013-904687, 2017 WL 1948883 (Ala. Cir. Ct. May 8, 2017).

[3] Id. at *1.

[4] Ala. Code § 25-5-68(a) (1975) (“Notwithstanding the foregoing, the maximum compensation payable for permanent partial disability shall be no more than the lesser of $220.00 per week or 100 percent of the average weekly wage.”).

[5] Ala. Code § 25-5-90(a) (1975) (“[B]ut the fee shall not exceed 15 percent of the compensation awarded or paid.”).

[6] Clower, 2017 WL 1948883, at *1. See generally Ala. Code § 25-5-17 (1975).

[7] See Clower, 2017 WL 1948883, at *2.

[8] Id.

[9] Id. at *3, *6.

[10] Id.

[11] Id. at *4.

[12] Id. (emphasis in original). The classification is that workers that are classified as suffering total temporary disablement and permanent total disablement receive benefits that are indexed and thus adjusted annually. Those workers who are partially disabled, even if permanently, are capped at $220.00. Partial disablement is any percentage that does not equal 100 – even if it is 99% disablement.

[13] Clower, 2017 WL 1948883, at *4.

[14] Clower, 2017 WL 1948883, at *4 (“There is little credibility in telling two injured workers, both of whom are 99% disabled due to work injuries, that they both get $220 per week in PPD – when one earns $8.50 per hour for a 40-hour work week, and the other earns an annual salary of $125,000.”) (emphasis in original).

[15] Id. (emphasis in original).

[16] Id.

[17] Id. at *5.

[18] Id.

[19] Id.

[20] The $220 cap essentially supersedes an individual’s former remedy available under the common law. Individuals are not reimbursed with an equivalent remedy; they are merely subject to the reduced potential compensation.

[21] Clower, 2017 WL 1948883, at *6.

[22] Id. (citing Reed v. Brunson, 527 So. 2d 102, 116 (Ala. 1988)).

[23] Id. at *6 (“It was the failure of the Legislature of 1987 to index the cap so that it would increase with prevailing wages and the cost of living that makes the cap unconstitutional.”).

[24] Id. See also Ala. Code § 25-5-90 (1975).

[25] Clower, 2017 WL 1948883, at *6–7.

[26] Id. at *7.  The 1973 Alabama legislature amended the Workman’s Compensation Act which in effect allowed only employers the ability to opt-out (subject to penalties), and had no such language for employees.

[27] Id. at *8 (citing Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016)).

[28] Clower, 2017 WL 1948883, at *9.

[29] Id.

[30] Id. at *15.

[31] Id. at *14 (relying on Alabama precedent, as well as the Alabama Rules of Disciplinary Procedure).

[32] Id. at *15.

[33] See generally, Local Judge Rules Alabama Workman’s Compensation Act Unconstitutional, http://www.carrallison.com/local-judge-rules-alabamas-workers-compensation-act-unconstitutional/ (last visited May 23, 2017).

Vol. 47:1 is here!

The Cumberland Law Review is pleased to announce that our first print copies of Volume 47:1 have arrived! We would like to extend warm thanks to all who have made this Volume possible. We are grateful to every contributing author for generating its content, and to every editor for working tirelessly to bring Vol. 47:1 to life.

Cumb Law Review Vol. 47-1___6

Cumb Law Review Vol. 47-1___1.jpg

Cumb Law Review Vol. 47-1___7

Implementing the Presidential Budget

By: Wesley Walker[1] and Thomas Bailey[2]

In the wake of the election of Donald J. Trump as President of the United States, many rumors have arisen as to what the President’s agenda will be in regard to the setting of the budget. On February 27, part of President Trump’s initial budget was announced proposing a $54 billion increase in defense spending and a “corresponding cut in what his administration deems lower priority programs” White House officials announced.[3] But, to what extent does the President have authority in the allocation of funds, while Congress possesses the “power of the purse”?

The Constitution of the United States provides that Congress shall “have the power to lay and collect taxes . . . and provide for the common defense and General Welfare of the United States . . . .”[4] Although the Constitution provides the power for the spending of taxpayer money, there is no set way in which these powers can be exercised.[5] As such, the role of the President was unclear until the enactment of the Budget and Accounting Act of 1921. This act created the Bureau of the Budget and placed it under the Department of the Treasury.[6] Additionally, this Act required the President to submit a budget for the Federal Government.[7] In 1974, the process was further refined with the Congressional Budget and Impoundment Control Act of 1974.[8] As Speaker of the House Paul Ryan put it, “concerns with executive power, coupled with rising levels of government spending and borrowing, again fueled calls for a comprehensive approach to the congressional budget process. Legislative mistrust of the President emboldened Congress to challenge executive-branch recommendations.”[9] This act established a clear statutory basis for congressional overview of the Presidential budget and provided for the yearly adoption of a budget that setup a framework for congressional budgetary decision-making.[10] Lastly, the Act established the House and Senate Budget Committees (HBC and SBC respectively) and created the Congressional Budget Office (CBO).[11] The HBC, SBC, and CBO all provide budgetary information and analysis to Congress without influence of the executive branch.[12]

The Office of Management and Budget (OMB) is the Executive agency that aids the President in creating the budget for the implementation of the administration’s policy goals. President Trump’s announcement and submission of the full budget to Congress will provide much fodder for some, and much excitement for others. Each President is lauded and ridiculed upon the announcement of the budget, as taxpayers are given full access to the plans and policies an administration finds important by seeing what their administration seeks to fund. At the President’s directive, the OMB structures the budget in accordance with the goals of the administration. Based upon Trump’s appointments to Heads of Bureaucracies[13] and statements from the White House,[14] there likely will be a sharp decrease in the funds allocated for government regulatory agencies, and a sharp increase in military spending as indicated by the February 27 budget leak.[15]

Although the President must submit a budget to Congress for review, the budget itself is a guideline for Presidential policies, which Congress will alter and implement to fit their own needs. With the Republicans controlling both congressional houses and a Republican President, this fiscal cycle for the United States could be as sweeping as the 111th Congress, which saw the passage of the Affordable Care Act,[16] better known as Obamacare. With the impending release of the budget on February 28th, we will likely see an increased spending in the Department of Defense, and reduced spending in the areas of social policy, welfare, and bureaucratic regulation.


[1] Candidate for Juris Doctor, Cumberland School of Law, 2018; Bachelor of Arts, University of Alabama 2014.

[2] Candidate for Juris Doctor, Cumberland School of Law, 2018; Bachelor of Science, University of Alabama in Huntsville 2015.

[3] Jacob Pramuk, Trump’s first budget proposal will call for $54 billion increase in defense spending, CNBC Politics (Feb. 27, 2017 9:37 AM), http://www.cnbc.com/2017/02/27/trumps-first-budget-proposal-will-call-for-54-billion-increase-in-defense-spending.html.

[4] U.S. Const. art. I § 8.

[5] Id.

[6] Library of Cong., Budget and Accounting Act of 1921, (Aug. 14, 1995), http://lcweb2.loc.gov:8081/ammem/amrlhtml/dtbudact.html.

[7] Staff of H. Budget Comm. 112th Cong. on The Federal Budget Process (Written by Current Speaker of the House Paul Ryan) at *1, (December 7, 2011), http://budget.house.gov/uploadedfiles/bprhistory.pdf.

[8] Id. at *2.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13]The New York Times, Donald Trump’s Cabinet is Taking Shape. Here’s the Latest List. (Feb. 20, 2017), https://www.nytimes.com/interactive/2016/us/politics/donald-trump-administration.html?_r=0.

[14] See Generally Office the White House Press Secretary, Statements and Releases, (Feb. 26, 2017), https://www.whitehouse.gov/briefing-room/statements-and-releases.

[15] Pramuk, supra note 1.

[16] Obamacare Facts, http://obamacarefacts.com/obamacarebill/ (last visited Feb. 27, 2017).

How Antonin Scalia Could Trump the Wall

By: Gage Smythe


On January 25, 2017, President Trump signed an Executive Order titled “Border Security and Immigration Enforcement Improvements.”[1] The Executive Order invoked the authority of the presidency under U.S. immigration law, including the Immigration and Nationality Act,[2] the Secure Fence Act of 2006,[3] and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.[4] The overarching purpose of the order is to “deploy all lawful means to secure the Nation’s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly, consistently, and humanely.”[5] This order was an initial step toward fulfilling one of the most popular promises of the Trump campaign, to “build a great, great wall on our southern border,” and “have Mexico pay for that wall.”[6] The order directed the executive branch to begin “immediate construction of a physical wall on the southern border.”[7]

One of the primary authorities the president cited in support of his action was the Secure Fence Act of 2006,[8] which attempted to achieve “operational control on the border” through “systematic surveillance” and “physical infrastructure enhancements.”[9] It enabled the Secretary of Homeland Security to take all actions that are “necessary and appropriate” to achieve and maintain operational control over the southern border, namely through building fences.[10] The reinforced fencing and security improvements in the Secure Fence Act are limited to certain portions of the southern border enumerated in the law.[11] Trump’s proposed physical wall would extend coverage to the entirety of the southern border using “appropriate materials and technology to most effectively achieve complete operational control of the southern border.”[12]

Trump’s plan to use the Secure Fence Act as the basis for his border wall could hit a snag based on the “necessary”and “appropriate” language used in the law and prior cases construing that language. A 2015 Supreme Court case, Michigan v. EPA,[13] analyzed the same words “appropriate” and “necessary” in The Clean Air Act-though in an order opposite to the language found in Secure Fence Act. Ultimately, the Court held that the Environmental Protection Agency did not reasonably consider the cost of their actions when deciding whether it was “appropriate and necessary” to regulate power plants.[14] In the Scalia-penned opinion, the late justice deemed no regulation “‘appropriate’ if it does significantly more harm than good.”[15] The identical words in the Secure Fence Act could cause problems for the Trump administration if it does not consider the costs and benefits of the proposed wall when deciding whether the new infrastructure is both appropriate and necessary.

“Appropriate and Necessary” Explained by Justice Scalia

The Clean Air Act imposed a slew of regulatory programs aimed at limiting air pollution emanating from “stationary” and “moving” sources.[16] These sources included refineries, factories, cars, airplanes, and other similar pollution-producers.[17] For fossil-fuel-fired power plants, a separate scheme was implemented to determine the advantageousness of potential regulations.[18] The EPA was required to study the “hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements of this chapter.”[19] Only after the study was finished could the EPA “regulate [power plants] under this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study . . . .”[20]

The EPA finished the requisite study in 1998 and decided in 2000 that regulating power plants was “appropriate and necessary.”[21] It based its decision of appropriateness on findings that power plants emitted mercury and other hazardous pollutants that were dangerous to human health and the environment, and that certain controls would effectively reduce the hazardous emissions.[22] It found the regulations “necessary” because the Clean Air Act failed to eliminate these risks without further regulations on power plants.[23] They also concluded that the costs of regulating power plants “should not be considered” when deciding whether or not to regulate under § 7412.[24] Those costs, however, were significant. The estimated cost to power plants was $9.6 billion every year, while the benefits were estimated to be only $4 to $6 million.[25] Totaling a cost of 1,600 to 2,400 times greater than the benefits that could be realized.[26] Other ancillary benefits might have increased the value of the regulations, but the EPA did not consider these in their appropriate-and-necessary finding.[27]

Justice Scalia wrote that the EPA exceeded its operational bounds “when it read § 7412(n)(1) to mean that it could ignore cost when deciding whether to regulate power plants.”[28] A natural reading of “appropriate and necessary” requires agencies to at least consider costs.[29] Considering costs reflects the regulatory tenet that reasonable administration requires an agency to consider the advantages and disadvantages of a proposed regulation.[30] This makes it unreasonable for an agency to completely ignore the cost-benefit analysis implicit in an appropriate-and-necessary instruction.[31] Thus, in Scalia’s words, “[n]o regulation is ‘appropriate’ if it does significantly more harm than good.”[32]

President Trump’s Proposed Border Wall

 It is against this statutory backdrop that President Trump’s proposed justification for the wall becomes tenuous and ripe for challenges. The cost of building a wall along the southern wall would, by any estimate, be incredibly expensive. At the low end of the president’s own estimates, the wall will cost at least $10 to $12 billion.[33] The Senate Majority Leader of President Trump’s own party has estimated it could cost as much as $15 billion.[34] However, both estimates could fall on the low end of the cost estimate spectrum. A recently-leaked Homeland Security Department report put the department’s own anticipated cost of building the wall at $21.6 billion.[35] Even in the case that the wall only ends up costing the $12 billion President Trump originally suggested, there are the additional costs of staffing, arming, and maintaining all 1,250 miles of the wall.[36] Notwithstanding the president’s campaign promise to somehow force Mexico to pay for the wall, we can assume that at least initially, the costs will be borne by the United States.[37]

The benefits of building and enforcing the southern border with a physical wall are difficult to quantify. The President’s executive order cited a “recent surge of illegal immigration at the southern border with Mexico” that “has placed a significant strain on Federal resources and overwhelmed agencies charged with border security and immigration enforcement . . . .”[38] President Trump cited no official findings to back up his claim that there has been a recent surge of illegal immigration into the United States from Mexico.[39] On the contrary, the Pew Research Center’s recent 2016 study found that between 2009 and 2014, “most states saw no statistically significant change in the size of their unauthorized immigrant populations . . . .”[40] In seven states, the unauthorized immigrant population had actually declined.[41] While in seven states the unauthorized immigrant population had risen, only one of those states could trace the rise to unauthorized immigrants from Mexico.[42]

Even if President Trump did build the wall, there is no evidence to suggest that the wall would provide a benefit in the form of decreased illegal immigration. The Cato Institute, a libertarian think tank, suggests that while a wall could address some of the pitfalls of the currently-in-place fencing, it would not alleviate the problems entirely and may even create new ones.[43] For example, while a taller wall may slow down those trying to get into the U.S., it would likely not completely deter people.[44] President Trump claimed at a rally that “there’s no ladder going over [that wall].”[45] If they were even able to get on top of the wall, there would be “no way to get down,” he said. After some thought, he admitted “[m]aybe a rope.”[46]

Would-be border crossers could also just continue their current practice of tunneling beneath the border. For years, the Mexican drug cartels have simply created underground tunnels to smuggle drugs into the United States.[47] Border patrol agents have made a concerted effort to find and fill these tunnels, but the cartels stay ahead of agents many times and even if they only get one use out of a single tunnel, they still consider it a success.[48] Until further technologies are developed to make it possible to find and detect tunnels before they are finished, tunnels will remain problematic and require more creative solutions than a simple concrete wall. Until then, border agents would have to confront the problem while also dealing with the new opaque wall preventing them from seeing what those on the Mexican side of the wall are doing. The inability to keep tabs on the other side would keep them from adequately assessing and preparing for potential incidents.

There are other concerns about the benefits of the wall that directly address the economic reality of excluding millions of unauthorized immigrants. First, unauthorized immigrants pay billions in tax dollars to the United States government.[49] According to the National Immigration Law Center, unauthorized immigrants paid $11.2 billion in taxes in 2010.[50] A report published by the Council on Foreign Relations found that unauthorized immigrants increase the productivity of certain job sectors like agriculture.[51] By increasing the labor supply to perishable fruits and vegetables, each acre of land is able to yield more output.[52] This increased productivity leads to larger incomes for United States business owners and results in an annual surplus equal to about .2% of GDP in 2004.[53] The Cato Institute studied the effect of unauthorized immigration on the GDP and found that the GDP would decline by about 1.5%, more than $2.6 trillion over the course of a decade, if mass deportation and the elimination of unauthorized immigration were realized.[54]

The official cost of building the wall has not yet been articulated and likely will not be certified until the wall is completely constructed. Judging by the admissions of then-candidate Trump and the recent report from the Department of Homeland Security, the wall will likely cost at least somewhere between $12 and $22 billion, if not more. The benefits of building such a wall are best left to the Department of Homeland Security when they assess the costs and benefits of building the wall. However, it is possible to look at the main proposed benefit of the wall, halting unauthorized immigration and creating a secure southern border, and see that the benefits derived will have to be substantial to even come close to $22 billion price tag. The effects of sealing the southern border certainly might have some ideological or national security benefit, but even if those benefits are quantifiable and seen as equal in substantiality to the cost of the wall itself, a wall might be an ineffective means for achieving those ends.

Conclusion

President Trump has authorized the building of the wall under the Secure Fence Act of 2006, thus the Department of Homeland Security will be limited to actions that “the Secretary determines appropriate and necessary to achieve and maintain operational control over the entire international land and maritime borders of the United States….”[55] Justice Scalia explained that this means an agency cannot ignore the requisite costs of their proposed action when determining whether that action is “appropriate and necessary” for achieving the goals of their action.[56] President Trump’s executive order makes no mention of a period of study to determine if a wall would be the most cost-effective means for achieving security along the southern border.[57] The order directs the agency to build a physical wall using “all lawful means to secure the Nation’s southern border…”[58]

For the Department of Homeland Security to adequately follow the law under the Secure Fence Act, it will need to consider the cost and benefits of the wall when determining if the wall is “appropriate and necessary.” Based on the report they recently leaked, they have already determined the wall will cost at least $22 billion. The benefits are ideological at best and are detrimental to the United States’ economy at worst. The potential loss of tax revenue and diminishing GDP due to a less productive work force should also be considered in the DHS’s analysis. Taking all of this into consideration, there are probably less costly means of achieving border security. Under Justice Scalia’s interpretation of what is “appropriate and necessary,” this wall might do “significantly more harm than good” and is thus probably not appropriate.[59]

Any challenge to the President’s plan will have to wait until there are more concrete moves to begin construction on the wall and an actual injury can be pled by a proper plaintiff in court. A potential plaintiff must have suffered a personal and articulable injury in order to bring suit challenging the wall’s construction, but should suit be brought, there is a very strong argument for the inappropriate and unnecessary nature of the wall. For farmers and states in the southwest United States, it is just a matter of time before the wall becomes a reality and only a matter of time after that before that reality requires them to take action in court. When it does, the words of Antonin Scalia could come back to plague the president who once described the late justice as “one of the best of all time.”[60]


[1] Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

[2] 8 U.S.C. § 1101.

[3] Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638.

[4] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009.

[5] Exec. Order No. 13767, supra note 1.

[6] Donald J. Trump, Candidate for President of the United States, Announcement Speech (June 16, 2015), available at http://time.com/3923128/donald-trump-announcement-speech/.

[7] Id.

[8] Secure Fence Act, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Exec. Order No. 13767, supra note 1.

[13] 135 S. Ct. 2699 (2015).

[14] Michigan, 135 S. Ct. at 2711.

[15] Id. at 2707.

[16] Id. at 2704.

[17] Id.

[18] Id.

[19] 42 U.S.C.A § 7412(n)(1)(A).

[20] Id.

[21] Michigan, 135 S. Ct. at 2705.

[22] Id. at 2705.

[23] Id.

[24] Id.

[25] Id. at 2706.

[26] Id.

[27] Michigan, 135 S. Ct. at 2706.

[28] Id. at 2707.

[29] Id.

[30] Id.

[31] Id. at 2708.

[32] Id. at 2707.

[33] Donald Trump’s Mexico Wall: Who is Going to Pay for It?, BBC News (Feb. 6, 2017), http://www.bbc.com/news/world-us-canada-37243269.

[34] Id.                                  

[35] Julia Edwards Ainsley, Trump Border ‘Wall’ to Cost $21.6 Billion, Take 3.5 Years to Build: Internal Report, Reuters (Feb. 9, 2017), http://www.reuters.com/article/us-usa-trump-immigration-wall-exclusive-idUSKBN15O2ZN.

[36] Id.

[37] Trump Announcement Speech, supra note 6.

[38] Exec. Order No. 13767, supra note 1.

[39] Id.

[40] Jeffrey S. Passel & D’Vera Cohn, Overall Number of U.S. Unauthorized Immigrants Holds Steady Since 2009, Pew Res. Ctr: Hisp. Trends (Sept. 20, 2016), http://www.pewhispanic.org/2016/09/20/overall-number-of-u-s-unauthorized-immigrants-holds-steady-since-2009/

[41] Id.

[42] Id.

[43] David Bier, A Wall Is an Impractical, Expensive, and Ineffective Border Plan, Cato Ins. (Nov. 28, 2016), https://www.cato.org/blog/border-wall-impractical-expensive-ineffective-plan.

[44] Id.

[45] Ian Schwartz, Trump on Border: Maybe They’ll Call It “The Trump Wall,” Real Clear Pol. (Aug. 19, 2015), http://www.realclearpolitics.com/video/2015/08/19/trump_ on_border_maybe_theyll_call_it_the_trump_wall.html.

[46] Id.

[47] Ron Nixon, As Donald Trump Calls for Wall on Mexican Border, Smugglers Dig Tunnels, N.Y. Times (Sept. 1, 2016), https://www.nytimes.com/2016/09/02/us/us-mexico-border-wall-tunnels.html?_r=1.

[48] Id.

[49] Jolene Ivey & Victor Ramirez, Immigrants and Taxes, Nat’l Immigr. L. Center https://www.nilc.org/wp-content/uploads/2015/11/MD-2013-Talking-Points-Taxes.pdf.

[50] Id.

[51] Gordon Hanson, The Economic Logic of Illegal Immigration, Council on Foreign Relations (2007), http://www.cfr.org/immigration/economic-logic-illegal-immigration/p12969.

[52] Id.

[53] Id.

[54] Raul Hinojosa-Ojeda, The Economic Benefits of Comprehensive Immigration Reform, Cato Journal 32.1 (2012).

[55] Secure Fence Act, supra note 3.

[56] Michigan, 135 S. Ct. at 2707.

[57] Exec. Order No. 13767, supra note 1.

[58] Id.

[59] Michigan, 135 S. Ct. at 2707.

[60] Donald Trump, Statement on Justice Scalia (Feb. 13, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-justice-scalia.

“Standing” Against Trump – CREW’s Foreign Emoluments Clause Challenge to Trump’s Presidency and its Justiciable Viability

By: Alex Thrasher[1]

On January 23, 2017, the Citizens for Responsibility and Ethics in Washington (“CREW”), a self-described “nonprofit, nonpartisan organization . . . that works on behalf of the public to foster an ethical and accountable government and reduce the influence of money in politics”[2] initiated a lawsuit against recently inaugurated President Donald Trump.[3] In the complaint, filed in the United States District Court for the Southern District of New York, CREW alleges that President Trump has committed, and will continue to commit, violations of the Foreign Emoluments Clause of the U.S. Constitution.[4] Specifically, CREW alleges that, at a minimum, these violations include:

(a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by [Trump]; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries.[5]

The Foreign Emoluments Clause of the Constitution states that “no Person holding any Office of Profit or Trust [as a representative of the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[6] CREW argues that although the courts have not been presented with many opportunities to interpret this clause, it is commonly accepted that the office of the President is bound by the clause, and that the President is “prevent[ed] … from accepting anything of value, monetary or nonmonetary, from any foreign government or its agent or instrument without congressional consent.”[7] CREW asserts that because President Trump has refused to divest himself of his expansive, global business interests prior to entering office, he continues to receive pecuniary benefits, at least in part, from foreign governments.[8]

For example, CREW points to current tenants of Trump Tower in New York City, which include the government-owned Industrial and Commercial Bank of China, and the Abu Dhabi Tourism and Culture Authority, which is owned by the United Arab Emirates.[9] CREW argues that Trump’s continued acceptance of any payments from these entities as tenants of Trump Tower, in the absence of congressional consent, constitutes a violation of the Foreign Emoluments Clause.

CREW further alleges that since Trump’s election, foreign diplomats have flocked to Trump’s new hotel in Washington, D.C., “eager to curry favor [with Trump] and afraid of what [he] may think or do if they send their business elsewhere in Washington.”[10] Additionally, CREW lists ten countries in which President Trump has business ties that have led, or likely will lead, to violations of the Foreign Emoluments Clause.

As a secondary allegation, CREW claims Trump’s domestic business interests are likely to cause him to violate Article II, Section 1, Clause 7 of the U.S. Constitution, the “Domestic Emoluments Clause,”[11] which similarly prohibits the President from receiving any benefit during his term of office from the United States or any state individually.[12]

As a result of the many examples of Trump’s violations of the Emoluments Clause alleged in the complaint, CREW contends it has suffered injuries in the form of the diversion and expense of its valuable resources to “counteract [Trump’s alleged] violations, impairing CREW’s ability to accomplish its mission.”[13] In support of this claim, CREW insists it has incurred the expenses of: “a significant amount of time and resources since the election educating the public about the Foreign Emoluments Clause and Defendant’s violations of it,” “hundreds of requests from the media about [Trump’s] conflicts of interest,” and the “substantial number of hours responding to them.”[14] CREW also asserts that because of Trump’s violations, it has not had the time and resources to respond to other important requests related to other “money in politics issues and congressional ethics issues.”[15] Over the course of twenty-three paragraphs, CREW sets forth other nuanced ways in which it has been primarily injured, all relating to the diversion or expense of its resources stemming from Trump’s alleged violations of the Emoluments Clause.[16]

To remedy these alleged injuries, CREW requests the court enter a declaratory judgment “as to the meaning of the Foreign Emoluments Clause and whether [President Trump’s] conduct is violating and will violate [it].”[17] Additionally, CREW prays for injunctive relief to stop current, and prevent any additional, violations of the Foreign Emoluments Clause.

This lawsuit against Trump raises an interesting question as to whether CREW has the requisite standing to seek judicial relief. Generally speaking, an organization has standing when it can show that a defendant’s conduct interferes with the organization’s ability to fulfill its purposes.[18] The precedent on which CREW rests its assertion of standing is the Supreme Court’s decision in Havens Realty Corp. v. Coleman.[19] In Havens Realty, individuals and an organization filed suit against the owner of an apartment complex alleging violation of section 804 of the Fair Housing Act of 1968.[20] According to the plaintiffs, black apartment seekers were told there were no vacancies for rent, while white apartment seekers were told there were.[21]

The plaintiff organization, HOME, was a nonprofit entity whose purpose was “to make equal opportunity in housing a reality in the Richmond Metropolitan Area.”[22] HOME’s activities included providing housing counseling services, and investigating and referring complaints of housing discrimination.[23] HOME alleged that because of the discriminatory rental practices of Havens Realty, “the organization’s counseling and referral services [were frustrated], with a consequent drain on resources.”[24]

In a rather brief discussion, the Supreme Court applied the same inquiry into whether HOME had standing to bring suit based on these allegations in the same way it would in the case of an individual: “Has the plaintiff ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction?”[25] The Court held it improper for the district court to dismiss HOME’s claims for lack of standing to sue under the Fair Housing Act and found that:

If, as broadly alleged, [Haven Realty’s] practices have perceptibly impaired HOME’s ability to provide counseling and referral services . . . there can be no question that the organization has suffered injury in fact. Such concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—constitutes far more than simply a setback to the organization’s abstract social interests.[26]

In cases after Havens Realty, the Supreme Court has affirmed the fundamental requirements of Article III standing. For example, in Lujan v. Defenders of Wildlife, the Court succinctly noted, “the irreducible constitutional minimum of standing contains three elements.”[27] First, the plaintiff must have suffered an injury in fact that is both “concrete and particularized,” and “actual or imminent,” and not merely hypothetical.[28] Second, there must be a causal connection between the injury and the conduct of which the plaintiff is complaining, which stems from the defendant’s conduct and not a third party.[29] Finally, it must be likely that the injury will be redressed by a favorable decision from the court.[30]

As recently as 2013, in Clapper v. Amnesty International USA, the Supreme Court determined that plaintiff-respondents lacked standing to sue under the Foreign Intelligence Surveillance Act of 1978[31] (“FISA”) when the alleged injury was not fairly traceable to the defendant’s conduct.[32]   Respondents argued that the risk of surveillance under FISA was so great that they were forced to take costly measures to protect the confidentiality of their international communications, and this present burden against almost certain future injury was fairly traceable to FISA.[33] Placing a heavy emphasis on the causal connection between the defendant’s conduct and the alleged injury, the Court held that measures taken by the plaintiff-respondents to avoid unauthorized surveillance under FISA was insufficient to establish standing, and the claims were too speculative and based only on a chain of events that may never even occur.[34]

Although Havens Realty seems to provide CREW with a legal leg to “stand” on, Lujan and its progeny suggest that the courts may require a more direct and transparent path between an alleged act by a defendant and the purported harm by a plaintiff than is presented in CREW’s complaint. As a result, CREW may have difficulty overcoming judicial skepticism about just how much harm it has actually incurred, and how traceable that alleged harm is to the conduct of President Trump.

As a result of President Trump’s vast business holdings and his refusal to conform to Washington’s customs. Perhaps no other President has entered office amid so much controversy. This lawsuit, one of what will likely be many to come throughout Trump’s presidency, presents a multitude of novel issues, such as what actually constitutes a violation of the Foreign Emoluments Clause, and whether the Clause really applies to the President as CREW argues it does.[35] Of all the questions presented, however, the standing issue is arguably the most critical. Without Article III standing, a federal court may not even begin to properly adjudicate the other issues presented. It will be interesting to see how the prior rulings in Havens Realty, Lujan, and Clapper are applied in the present case. No matter how the district court rules, it seems likely that this constitutional challenge may be ripe for review by the Supreme Court in the near future.


[1] Candidate for Juris Doctor, Cumberland School of Law, 2018; Bachelor of Arts, Washington University in St. Louis, 2008.

[2] Complaint at 2, Citizens for Responsibility and Ethics in Washington v. Trump (S.D.N.Y 2017) (No. 1:17-cv-00458-RA).

[3] Id.

[4] Id. at 3. See U.S. Const. art. I, § 9, cl. 8.

[5] Id. at 3.

[6] U.S. Const. Art. I, § 9, cl. 8.

[7] Complaint at 3.

[8] Complaint at 9.

[9] Complaint at 12-13.

[10] Complaint at 13 (citing Jonathan O’Connell & Mary Jordan, For foreign diplomats, Trump is place to be, Wash. Post (Nov. 18, 2016); Eric Lipton & Susanne Craig, At Trump Hotel in Washington, Champagne Toasts in an Ethical ‘Minefield’, N.Y. Times (Jan. 19, 2017).

[11] U.S. Const. Art. II, § 2, cl. 7.

[12] Complaint at 22.

[13] Complaint at 23.

[14] Id.

[15] Id. at 24.

[16] See id. at 22-32.

[17] Id. at 35.

[18] Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).

[19] Complaint at 4.

[20] See 42 U.S.C. § 3604.

[21] Havens Realty, at 368.

[22] Id. (citing Appellant’s Brief, at 13, ¶ 8) (internal quotation marks omitted).

[23] Id. (citing Appellant’s Brief, at 14, ¶¶ 8a, 8b).

[24] Id. at 369 (citing Appellant’s Brief, at 17, ¶ 16); See also Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 904-05 (2d Cir. 1993) (The court held that activities relating to identifying and counteracting the defendant’s conduct detracted from the organization’s workers’ normal tasks was sufficient to establish injury in fact. Id. at 905).

[25] Id. at 378-379 (quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261 (1977), quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

[26] Id. at 379 (referencing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)).

[27] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

[28] Id. See Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41 (1972).

[29] Id. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-41 (1976).

[30] Id. See Simon, 426 U.S. at 38.

[31] 50 U.S.C. § 1881(a)

[32] Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).

[33] Clapper, 133 S. Ct. at 1146.

[34] Id. at 1141.

[35] See Jonathan H Adler, Does the emoluments clause lawsuit against President Trump stand a chance?, Wash. Post, Jan. 23, 2017.