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.

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[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, (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

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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),

[4] U.S. Const. art. I § 8.

[5] Id.

[6] Library of Cong., Budget and Accounting Act of 1921, (Aug. 14, 1995),

[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),

[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),

[14] See Generally Office the White House Press Secretary, Statements and Releases, (Feb. 26, 2017),

[15] Pramuk, supra note 1.

[16] Obamacare Facts, (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.


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

[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),

[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),

[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),

[41] Id.

[42] Id.

[43] David Bier, A Wall Is an Impractical, Expensive, and Ineffective Border Plan, Cato Ins. (Nov. 28, 2016),

[44] Id.

[45] Ian Schwartz, Trump on Border: Maybe They’ll Call It “The Trump Wall,” Real Clear Pol. (Aug. 19, 2015), 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),

[48] Id.

[49] Jolene Ivey & Victor Ramirez, Immigrants and Taxes, Nat’l Immigr. L. Center

[50] Id.

[51] Gordon Hanson, The Economic Logic of Illegal Immigration, Council on Foreign Relations (2007),

[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),

“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.

Immigration Executive Order: Muslim Ban or Legitimate Protective Measure?

Xan Ingram

Since taking office on January 20th, President Trump has issued eight executive orders,[1] twelve memorandums,[2] and two proclamations.[3] Many of these actions have been incredibly contentious.[4]

In an article posted on dated December 2015, entitled “Donald J. Trump Statement on Preventing Muslim Immigration,” now-President Donald Trump was quoted as saying:

Without looking at the various polling data, it is obvious to anybody the hatred [of radical Islamic groups towards the United State] is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victim of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again.[5]

A little over two years later, President Donald Trump proved he meant what he said when he promised to “Make America Great Again” by restricting immigration to the United States with his January 27, 2017 executive order entitled “Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States.”[6] Most notably, this executive order will (1) prevent resettlement into the United States for 90 days of refugees from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; (2) halt all refugee resettlement under the United States Refugee Admission Program (USRAP) for 120 days; (3) indefinitely ban Syrian refugees from resettling in the United States; and (4) put a 50,000 cap on refugee resettlement during Fiscal Year 2017.[7] The order cites the terrorist attacks of September 11, 2001 as a rationale for the suspension, although there have been no fatal attacks from nationals of any of the seven banned countries in over twenty years.[8] This executive order is controversial because it has been seen as discriminatory: in 1882, the Chinese Exclusion Act banned immigration of Chinese citizens; in 1942, Executive Order 9066 set the legal foundation for Japanese internment camps; in 1979, President Jimmy Carter targeted Iranian immigrants as a result of the hostage crisis; and following 9/11, President Bush instituted a program requiring interviews at airports for men 16 years old and older who were from 25 different countries (24 of which were Muslim-majority).[9]

On Friday, February 3rd, the United States District Court for the Western District of Washington granted the State of Washington’s request for a temporary restraining order (TRO) against President Trump enjoining him from enforcing five sections of the executive order.[10] This decision applies to sections 3(c) (90-day ban on immigration from Libya, Yemen, Sudan, Syria, Somalia, Iraq, and Iran), 5(a) (suspension of the United States Refugee Admission Program), 5(b) (prioritization of religious minorities), 5(c) (indefinite suspension of Syrian refugee immigration), and 5(e) (grant of authority to Secretaries of State and Homeland security to grant entry on a case-by-case basis).[11] The United States government filed an emergency motion for an immediate administrative stay, and on Saturday, February 4, the Ninth Circuit Court of Appeals denied the motion.[12] The Ninth Circuit ordered the State of Washington to submit their opposition to the emergency motion by Sunday, February 5 at 11:59 p.m., and ordered the United States government to submit their reply motion by Monday, February 6 at 3:00 p.m.[13]

Most Recent Occurrence

On Tuesday, February 7th, the Ninth Circuit heard oral arguments from the State of Washington and the United States Government.[14] The State of Washington argued, among other things, that the executive order was a violation of the Establishment Clause and the United States argued that the President’s decision should be given deference because of the authority given to him to execute the Immigration and Naturalization Act of 1952.[15]

Rundown of the Executive Order

The executive order has the effect of prohibiting entry into the United States of nationals from Iraq, Iran, Yemen, Libya, Syria, Sudan, and Somalia for 90 days.[16] It also suspends the USRAP (U.S. Refugee Admissions Program) for 120 days.[17] After the 120 days, the USRAP will continue for countries that the Secretary of State, the Secretary of Homeland Security, and the Director of Intelligence determine to have adequate admission procedures.[18] The order puts a 50,000 cap on the number of refugees that may enter the United States during fiscal year 2017 (down 60,000 from the 110,000 former President Obama authorized in September 2016).[19] Entry of specifically Syrian refugees has been prohibited indefinitely, “until such time as [President Trump has] determined that sufficient changes have been made to the USRAP.”[20] Currently, some refugees may be admitted on a case-by-case basis, but only if admission “would not pose a risk to the security or welfare of the United States,” and “the person is a religious minority in his country of nationality . . . [and] admitting the person would enable the United States to [follow] international agreement[s], or when the person is already in transit and denying admission would cause undue hardship.”[21] The order grants state and local jurisdictions the maximum amount of discretion legally possible in determining placement or settlement in their jurisdictions.[22]  The order also suspends the Visa Interview Waiver Program, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview.[23] The exceptions to the suspension are “foreign nationals traveling on diplomatic visas, NATO visas, C-2 visas [used for UN official work], and G-1, G-2, G-3, and G-4 visas [used for NATO and designated international organization employees].”[24]

Responses to the Executive Order

The executive order only explicitly names Syria as an affected country, and fails to mention Iran, Libya, Somalia, Sudan, and Yemen.[25] This vagueness left the interpretation of the order up to the Department of Homeland Security, and created “widespread confusion across the country as airports struggled to adjust to the new directives.”[26] This confusion has been compounded by a string of lawsuits challenging the new order.[27] The day after the order was issued, two Iraqi citizens along with the ACLU, the International Refugee Assistance Project, and the National Immigration Law Center filed suit challenging the immigration order.[28] The result of the lawsuit was an injunction prohibiting enforcement of the executive order against holders of valid visas:

IT IS HEREBY ORDERED that the respondents, their officers, agents, servants, employees, attorneys, and all members and persons acting in concert or participation with them, from the date of this Order, are

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.[29]

In addition to this New York lawsuit, federal court suits have been brought in Washington, Virginia, California, and Massachusetts federal courts–all rulings came down in favor of the immigrants.[30]

Subsequently, the Department of Homeland Security released a statement supporting the order, which stated that the Department would be supporting and enforcing the order, highlighting the small number of travelers who were actually affected by the order.[31] The next day, then-Attorney General Sally Yates said that she was “not convinced that the defense of the Executive Order [was] consistent with [her duties to seek justice and stand for what is right], nor [was she] convinced that the Executive Order [was] lawful.”[32] She went on to say that under her authority the Department of Justice would not defend the Executive Order in court until she was “convinced that it [was] appropriate to do so.”[33] The President subsequently fired her and replaced her with Dana Boente, who issued a memorandum to the Department of Justice directing its employees to “do [their] sworn duty to defend the lawful orders of [the] President.”[34]

Future of the Executive Order

The order mandates an investigation by the Secretary of Homeland Security into information required from any country to “adjudicate any visa, admission, or other benefit under the INA [Immigration and Nationality Act].”[35] The Secretary will then submit a report within 30 days of the order (February 26). That report is to contain (1) information needed for adjudications and admissions, and (2) a list of countries that do not provide adequate information.[36] The Secretary’s report will then go to the Secretary of State, who will request that all foreign governments who do not provide adequate information regarding their nationals within 60 days.[37] After the 60 day period, the Secretary of State and the Secretary of Homeland Security will submit to the President a list of countries recommended for inclusion on a new proclamation which would prohibit the entry of nationals from those countries (following the same exceptions as the current suspension).[38] Pursuant to these future reports, more countries could be included in future entry bans.[39] The order will also be the starting point for implementation of new immigration screening programs.[40] Once the USRAP is reinstated, priority will be given to individuals who claim refugee status on the basis of religious persecution, where they are part of a minority religion in their country of nationality. Because all seven countries currently affected are Muslim-majority countries, the practical effect of the priority status will be to put those who are not Muslim before those who are.[41] This section of the order has been called into question because it could potentially violate the Establishment Clause of the Constitution, which prohibits the government from disfavoring any one religion.[42] The order may also run afoul of the Immigration and Naturalization Act, the statute that President Trump issued the order pursuant to, if it is found to discriminate against Muslim refugees.[43] Finally, the order requires the Secretary of Homeland Security and the Attorney General to publicize within 180 days (and every 180 days thereafter):

  • The number of foreign nationals in the United States who have been charged, convicted, or affiliated with terrorism-related activity,
  • The number of foreign nationals in the United States who have been “radicalized” since entry,
  • The number of gender-based violent acts against women in the United States by foreign nationals, and
  • “Any other information relevant to public safety and security.”[44]

As adjudications regarding President Trump’s executive order continue and are appealed, it will be fascinating to see how courts handle cases–weighing Constitutional protections against President Trump’s authority to protect United States citizens as he sees fit.

[1] Executive Orders, the White House, (last visited Feb. 8, 2017),

[2] Presidential Memoranda, the White House (last visited Feb. 8, 2017),

[3] Proclamations, the White House, (last visited Feb. 8, 2017),

[4] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017),

[5] Donald J. Trump Statement on Preventing Muslim Immigration, Donald J. Trump (last updated Dec. 7, 2015),

[6] Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).

[7] Id. at *8978-79; Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017),

[8] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017); Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks In U.S., NPR (last updated Jan. 27, 2017),

[9] Greg Myre, Trump’s Immigration Freeze Omits Those Linked to Deadly Attacks In U.S., NPR (last updated Jan. 27, 2017),

[10] Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).

[11] Id.; Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978-79 (Jan. 27, 2017).

[12] Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017) (order denying emergency motion).

[13] Id.

[14] Watch Live: Oral Arguments on Trump’s Executive Order Travel Ban, NBC New (Feb. 7, 2017),

[15] Id. See U.S. Const. amend. I; 3 U.S.C.A. § 301 (1951); Immigration and Naturalization Act of 1952, 8 U.S.C.A. § 1185 (1952).

[16] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017),

[17] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8979 (Jan. 27, 2017).

[18] Id.

[19] Id.; Bureau of Population, Refugees, and Migration, Proposed Refugee Admissions for Fiscal Year 2017 (Sept. 15, 2016),

[20] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017)

[21] Id.

[22] Id. at *8980.

[23] Id. Certain statutory exceptions to the executive order exist.; See Visa Waiver Program, Department of State,

[24] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978 (Jan. 27, 2017); Directory of Visa Categories, Dep’t of State,

[25] See Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8979 (Jan. 27, 2017).

[26] Evan Perez, et al., Inside the Confusion of the Trump Executive Order and Travel Ban, CNN: Politics (last updated Jan. 30, 2017),

[27] Mark Joseph Stern, Trump Versus Everyone, Slate (last updated Feb. 1, 2017),

[28] Darweesh v. Trump, 2017 WL 388504, *1 (Jan. 28, 2017).

[29] Id. at *1.

[30] Litigation Regarding President Donald Trump’s Executive Orders Results in Conflicting Agency Statements and Dismissal of Acting Attorney General Sally Yates, Interpreter Releases Daily 1, 01-31-17 (Jan. 31, 2017).

[31] Id.

[32] Litigation Regarding President Donald Trump’s Executive Orders Results in Conflicting Agency Statements and Dismissal of Acting Attorney General Sally Yates, Interpreter Releases Daily 1, 01-31-17 (Jan. 31, 2017).

[33] Id. at *8977-78.

[34] Id.

[35] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017).

[36] Id. at *8977-78.

[37] Id. at *8978.

[38] Id.

[39] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8978 (Jan. 27, 2017).

[40] Id.

[41] Id. at *8979.

[42] Adam Liptak, President Trump’s Immigration Order, Annotated, The New York Times (last updated Jan. 28, 2017),

[43] See 8 U.S.C. § 1152(a)(1)(A) (1952) (“no person shall receive any preference or priority or be discriminated against in the issuance of an immigration visa because of the person’s race, sex, nationality, place of birth, or place of residence”); Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8977 (Jan. 27, 2017).

[44] Exec. Order No. 13769, 82 Fed. Reg. 8977, at *8980 (Jan. 27, 2017).

Cumberland Professor Considered for Supreme Court of the United States

Lindsey Catlett[1]

On January 31, 2017, President Donald Trump named his nominee for the next Associate Justice of the Supreme Court of the United States; the verdict: The Honorable Neil Gorsuch.[2] The nomination of a new justice is a significant event in American history and in the legacy of a president.  The announcement has been highly anticipated since the death of Justice Antonin Scalia last spring,[3] and perhaps even more so after President Obama’s unsuccessful appointment of The Honorable Merrick Garland.  The months long wait for Trump’s Supreme Court pick was of special importance to Cumberland School of Law, as adjunct-professor, Judge Bill Pryor,[4] was considered for the position.[5] In light of Cumberland’s close relationship with Judge Pryor, the Cumberland Law Review would like to provide an overview of Supreme Court nominations, a legal profile of Judge Gorsuch, and a special profile of Judge Pryor and his contributions to the judiciary, and Cumberland School of Law.

The founding fathers addressed the selection of U.S. Supreme Court Justices at the Constitutional Convention of 1787. Article II of the U.S. Constitution provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . .”[6]  This clause largely established the modern process for selecting and confirming Supreme Court justices.  After nomination by the President, potential justices, like Judge Gorsuch, appear before the Senate Judiciary Committee, and ultimately must be confirmed by the Senate as a whole.[7] The process is tedious, but necessary, because as President Trump explained during his announcement, justices could serve for fifty or more years, and their decisions could be felt long after their departure from the bench.[8]  As such, the process illustrates the importance of balanced federal powers; both the executive and legislative branches must share a conviction that the individual is the best candidate for the position before bestowing upon him or her such enormous judicial power.[9]

As straightforward as the Constitutional duties of Article II may sound, much debate has arisen over the extent of the Senate’s “advice and consent.” Some Constitutional scholars propose that the “advice and consent” obligation requires Congress to both advise the President about who he or she should consider for a Supreme Court nomination and then consent to the candidate after the president’s announcement.[10] This interpretation of the Constitution would expand the role of the legislative branch to both recommend a nominee and then approve the nominee. The executive branch would have a more passive role under this interpretation, as the president would essentially endorse the Senate’s recommendation and then wait for the Senate to approve of the nominee.

The most commonly accepted interpretation, which is reflected by current practices, narrows the Senate’s role to that of merely approving the President’s nominee.[11] This interpretation evenly balances the power in selecting a Supreme Court justice between the legislative and executive branches. Such is in stark contrast to the previously discussed interpretation which would weigh the responsibility heavily in favor of the legislative branch.  In Marbury v. Madison, Chief Justice Marshall interpreted the Appointments Clause narrowly, explaining that the clause sets forth a three step process: 1) the nomination, which is the “sole act of the president and is completely voluntary”;[12] 2) the appointment, a step which is also taken by the president, “though it can only be performed by and with the advice and consent of the senate”;[13] and, 3) the commission.[14] This interpretation, though not in the context of a Supreme Court appointment, closely mirrors today’s process for all presidential appointments requiring confirmation.

A second legal issue regarding the nomination process for U.S. Supreme Court Justices arose in 1968.[15]  On June 13, 1968, President Johnson received a letter from then Chief Justice of the Supreme Court, Justice Warren notifying the president of Chief Justice Warren’s intent to retire from the Supreme Court.[16] In response, President Johnson agreed to accept the resignation only once a successor had been qualified.[17] On June 26, while Chief Justice Warren was still on the bench, President Johnson submitted nominees to the Senate to fill the anticipated vacancy.[18]

Critics raised concerns about the validity of the nominations, arguing that the President could not make nominations, and the Senate could not confirm nominations for a Supreme Court Justice until there was an actual vacancy on the Supreme Court.[19] In a published opinion, the U.S. Department of Justice advised that the President has the power to nominate, and the Senate has the power to confirm, in anticipation of a vacancy on the Supreme Court.[20] This opinion is applicable in situations where an agreement has been made with a current Justice regarding his or her pending retirement upon the selection of a predecessor, as well as in response to a Justice being nominated to a higher position.[21]

The U.S. Department of Justice based its opinion on historic precedent and practical considerations. The opinion cites no less than five similar occurrences in U.S. history where a Supreme Court Justice was nominated and confirmed in anticipation of a vacancy.[22] In recognition of logistical concerns, the opinion states, “If the Senate’s power to confirm were conditioned on the present effectiveness of the vacancy, there would continually be gaps in the holding of important offices. In all cases, nomination, confirmation and appointment would have to wait until the incumbent leaves office. Interruptions in the discharge of public business would necessarily result. The needs of prudent administration”[23] require the allowance of nominations and confirmations in anticipation of a vacancy.

The nomination of Neil Gorsuch, however, is intended to fill the year-long unanticipated Supreme Court vacancy created by Justice Scalia’s death, and end a period of interruption “in the discharge of public business.”[24] If confirmed, this will not be Judge Gorsuch’s first tour of duty in the nation’s highest court. Judge Gorsuch clerked for both Justice Anthony Kennedy and former Justice Byron White from 1993-1994.[25] As such, Judge Gorsuch may become the first Justice of the Supreme Court to serve alongside a Justice for whom he clerked.[26]  Prior to his judicial career, Judge Gorsuch received his Bachelor’s degree from Columbia University, J.D. from Harvard Law School, and a Doctorate of Philosophy from Oxford University.[27]

One of Judge Gorsuch’s most well-known opinions from his tenure on the U.S. Court of Appeals for the Tenth Circuit is his concurring opinion in Hobby Lobby v. Sibelius.[28] The issue in Hobby Lobby v. Sibelius was whether the owners of Hobby Lobby, were required to provide certain contraceptive services as a part of their employer-sponsored health care plan under the Patient Protection and Affordable Care Act.[29] The majority held that the owners had standing to sue and a likelihood of success under the Religious Freedom Act.[30] Judge Gorsuch wrote a concurring opinion in which he supported the grant of a preliminary injunction to exempt the owners from compliance with the contentious sections of the Affordable Care Act until the case was decided.[31] His opinion in Hobby Lobby v. Sibelius is representative of Judge Gorsuch’s conservative legacy that the current administration hopes to see incorporated into future U.S. Supreme Court holdings.

Judge Gorsuch’s nomination last night marked the culmination of the Trump administration’s deliberations between three well-respected and highly-qualified candidates.[32] The Cumberland School of Law community is proud to have had one of our own, Judge Bill Pryor, included in this prestigious list.[33] Judge Pryor received his Bachelor’s degree from Northeast Louisiana University and his J.D. from Tulane University School of Law.[34] Within his extensive legal career Judge Pryor has clerked in the U.S. Court of Appeals for the Fifth Circuit, served as both Deputy Attorney General and Attorney General for the state of Alabama, and is now a U.S. Circuit Judge for the Eleventh Circuit Court of Appeals.[35] In addition to his public service as a federal judge for the Eleventh Circuit, Judge Pryor is also an adjunct professor at Cumberland School of Law where he teaches a course entitled “Reading Law.”  His course, true to his jurisprudential philosophy, explores textualism and the legal canons of construction.

To best articulate the appreciation that Cumberland has for Judge Pryor, there are no better experts than Judge Pryor’s own students. Emily Schreiber,[36] a second-year student in his Reading Law class, put it best, describing Judge Pryor as “an approachable professor who has an amazing way of putting complex ideas into simpler terms. His understanding of textualism and Scalia and Garner’s approach is something that will be applicable throughout our practices. Cumberland is lucky to have him take the time to teach this class and invest in our students.”[37] Thank you, Judge Pryor, for your contributions to American jurisprudence and to the next generation of Cumberland Lawyers.

[1] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Ouachita Baptist University.

[2] Julie Hirschfeld & Mark Landler, Trump Nominates Neil Gorsuch to the Supreme Court, New York Times, Jan. 31, 2017, available at

[3] Nina Totenberg, Justice Antonin Scalia, Known for Biting Dissents, Dies At 79, N.P.R., Feb. 13, 2016, available at

[4] See U.S. Court of Appeals for the Eleventh Circuit,

[5] Nina Totenberg, Three Judges Trump May Nominate for the Supreme Court, N.P.R., Jan. 24, 2017,

[6] U.S. Const. art. II, §2, cl. 2 (emphasis added).

[7] Barry J. McMillion, Supreme Court Appointment Process: President’s Selection of a Nominee, Congressional Research Service (2016),

[8] Full Transcript and Video: Trump Picks Neil Gorsuch for Supreme Court,  N.Y. Times (Jan 31, 2017),

[9] See Id. at 1.

[10] Id. at 5. (citing John Ferling, “The Senate and Federal Judges: The Intent of the Founding Fathers,” Capitol Studies, vol. 2, Winter 1974, p. 66: “Since the convention acted at a time when nearly every state constitution, and the Articles of Confederation, permitted a legislative voice in the selection of judges, it is inconceivable that the delegates could have intended something less than full Senate participation in the appointment process.”).

[11] See e.g., Joseph P. Harris, Advice and Consent of the Senate, 34 (1st ed. 1953) (Stating “The debates in the Convention do not support the thesis since advanced that the framers of the Constitution intended that the President should secure the advice—that is, the recommendations—of the Senate or of individual members, before making a nomination.”).

[12] Id. at 155.

[13] Id.

[14] Id. at 156.

[15] See Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C. 108 (1986).

[16] Id.

[17] Id. In this text, “qualified” means that the successor had both oaths which are required for holding Federal judicial office. Id. at 154 n.2.

[18] Presidential Appointees—Resignation Subject to the Appointment and Qualification of a Successor, 3 Op. O.L.C. 152, 154 (1986).

[19] Id.

[20] Id. at 155.

[21] Id.

[22] Id. at 158–60.

[23] Presidential Appointees—Resignation Subject to the Appointment and Qualification of a Successor, 3 Op. O.L.C. 152, 158 (1986).

[24] Id.

[25] U.S. Court of Appeals for the Tenth Circuit,

[26] Dylan Matthews, Neil Gorsuch, Donald Trump’s Supreme Court nominee, explained, Vox (Jan 31, 2017 8:04 PM EST),

[27] Id.

[28] Hobby Lobby Stores, Inc. v. Sibelius, 723 F.3d 1114 (10th Cir. 2013).

[29] Id. at 1120.

[30] Id. at 1121.

[31] Id. at 1152.

[32] See Totenberg, supra note 5.

[33] Id.

[34] Eleventh Circuit, supra note 4.

[35] Id.

[36] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Furman University.

[37] Id.

New Overtime Rule Remains in Limbo After Trump’s First Week

Kyle Weaver[1]

In late 2016, employers rejoiced after a federal judge in Texas unexpectedly enjoined the implementation of drastic changes to the formula for determining which employees are entitled to overtime compensation.[2] It’s well known that the Fair Labor Standards Act (hereinafter “FLSA”) requires certain employees be paid overtime for each hour worked in excess of forty in a given workweek.[3] However, the trick is determining which employees are so entitled. Employees who meet three tests—the salary basis test, the duties test, and the salary level test—are considered “exempt” employees, and are not entitled to receive overtime compensation.[4] Under present regulations, an employee will meet each of the above tests and be considered exempt from overtime if the employee: 1) is paid a salary which is not subject to variation for quantity or quality of work; 2) the employee’s job duties involve primarily executive, administrative, or professional duties; and, 3) the employee earns at least $455 per week, or $23,660 per year.[5]

On March 13, 2014, President Barack Obama directed the Department of Labor to update the regulations defining which white collar workers are protected by the FLSA’s minimum wage and overtime standards and to look for ways to modernize and simplify the regulations while ensuring that the FLSA’s intended overtime protections were fully implemented.[6] In May 2016, the Department of Labor promulgated its final rule which would drastically increase the “salary level” test, requiring employees earn at least $913.00 per week, or $47,476.00 per year to be considered exempt.[7] The new rule was to become effective December 1, 2016, to the distaste of many employers.[8] Many believed that now-President Trump would overturn or at least curtail the regulation early in his term—it was simply a question of how long employers would be subject to the new overtime rules—enter the Honorable Amos Mazzant.

On November 22, 2016, Judge Mazzant, of the United States District Court for the Eastern District of Texas, entered a preliminary injunction which temporarily stalled implementation of the Department of Labor’s new overtime rule.[9] The preliminary injunction came after Nevada and twenty other states, in addition to the Plano Chamber of Commerce and over fifty other business organizations filed suit against the United States Department of Labor and the Wage and Hour Division, challenging the final rule.[10] The court first addressed its own jurisdiction finding that the issue was ripe for judicial review because the issues raised were purely legal in nature and because the challenged regulations were a “final agency action.”[11] The court next explained that a party seeking a preliminary injunction must establish:

1) a substantial likelihood of success on the merits; 2) a substantial threat that the plaintiffs will suffer irreparable harm if the injunction is not granted; 3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest.[12]

Turning first to the Plaintiff’s likelihood of success on the merits, the court rejected the Plaintiffs’ argument that the FLSA did not apply to the states, finding instead that Congress “was clear in its intention for the FLSA to apply to the States.”[13] The court next addressed whether the Department of Labor’s construction of the FLSA was entitled to deference. The court explained its determination of whether the regulation was entitled to deference was guided by the two-part test announced by the United States Supreme Court in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.[14] Under Chevron, the court must first determine whether “Congress has directly spoken to the precise question at issue,” because “if the intent of Congress is clear, . . . the court . . . must give effect to the unambiguously expressed intent of Congress.”[15] However, the court explained “if Congress has not unambiguously expressed its intent regarding the precise question at issue, the Court will defer to the agency’s interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’”[16]

The court first sought to determine whether 29 U.S.C. § 213(a)(1) was ambiguous. That section provides: “‘any employee employed in a bona fide executive, administrative, or professional capacity . . . as such terms are defined and delimited from time to time by regulations of the Secretary’ shall be exempt from minimum wage and overtime requirements.”[17]           The State plaintiffs asserted that the court should go no farther than the first step of its Chevron analysis because the plain language of the exemption was clear and that Congress “directly and unambiguously spoke about the type of employees that must be exempt.”[18] The Department of Labor responded that its regulations were entitled to deference because Congress did not define the terms “bona fide, executive, administrative, or professional capacity,” and as such “Congress delegated to the Department the broad authority to interpret the terms through regulations.”[19]

The court began its analysis by explaining that the “precise question at issue” was what constituted an employee employed in an executive, administrative, or professional capacity.[20] The court next found that the statute was not silent in answering that question and that the court would assume congressional intent from the plain meaning of a word when the statute did not provide a definition.[21] The court looked to the Oxford English Dictionary to define the meanings of “executive,” “administrative,” and “professional,” and determined that the definitions “relate to a person’s performance, conduct, or function without suggesting salary.”[22] Thus, the court concluded: “it is clear Congress intended the EAP exemption to apply to employees doing actual executive, administrative, and professional duties. In other words, Congress defined the EAP exemption with regard to duties, which does not include a minimum salary level.”[23] As such, the court held that the Department of Labor’s final rule contravened the unambiguous intent of Congress and was therefore unlawful.[24] Nevertheless, the court further concluded that the rule also did not deserve deference at Chevron’s second step because the substantial increase from $455 per week to $913 per week contravened the intent of Congress by establishing a “de facto salary-only test.”[25]

After finding that the Plaintiffs had shown a likelihood of success on the merits, the court next sought to determine whether the plaintiffs had demonstrated the remaining three factors that would entitle them to a preliminary injunction. The court determined that States’ significant costs of complying with the final rule was sufficient to demonstrate a likelihood of irreparable harm that would result if the injunction was not entered.[26] The court next balanced the hardships in favor of the plaintiffs, finding that the defendants were unable to articulate any harm they would suffer from delaying implementation of the rule.[27] Finally, the court determined the public interest would be best served by issuing an injunction to maintain the status quo while the court addressed the merits.[28] As a result, the court found that a nationwide injunction was proper because the scope of the alleged irreparable injury extended nationwide, and that such an injunction would protect employees from being subject to different exemptions based on location.[29]

On December 1, 2016, the Obama administration provided the District Court with notice that it intended to appeal the preliminary injunction.[30] Perhaps poetically, the notice was given on the same day that the Rule was supposed to take effect. However, the appeal may be short lived. On January 25, 2017, the Trump Administration hinted at its intention to withdraw the Department of Labor’s appeal to the United States Court of Appeals for the Fifth Circuit. Withdraw of the appeal will not render the preliminary injunction permanent, as the District Court has not formally determined the merits, nor entered a permanent injunction. Nevertheless, the withdraw may be a good barometer for how the administration will ultimately address overtime pay.

Political commentators explain that President Trump faces a difficult decision: curtail federal government regulation as promised, or alienate labor groups and middle class voters affected by the rule.[31] Aside from Executive action by President Trump, Congressional Republicans could utilize the Congressional Review Act which allows Congress to disapprove of federal regulations by joint resolution.[32] Such would be a life raft for Trump, saving him from a dicey political decision. On the other hand, the Trump administration could take a middle road and increase the minimum salary to a number between the present threshold of $455 per week, or $23,660 per year, and the proposed threshold of $913.00 per week, or $47,476.00 per year. Employers wait with bated breath as it remains to be seen whether Trump will toss out the new rule in its entirety or merely amend the salary level.

[1]Candidate for Juris Doctor, Cumberland School of Law, Samford University, B.S. Finance and Human Resources Management, Florida State University.

[2] Michael A. Shadiack & Lauren F. Iannaccone, Employers Cautiously Rejoice As Federal Judge Suspends New Overtime Rule, Connell Foley (Nov. 23, 2016),

[3] See 29 U.S.C. § 207(a)(1).

[4] See 29 C.F.R. Part 541. See also 80 F.R. 38515.

[5] See 29 C.F.R. Part 541.

[6] Presidential Memorandum—Updating and Modernizing Overtime Regulations, The White House (Mar. 13, 2014),

[7] United States Department of Labor, Wage and Hour Division, Final Rule: Overtime, (last visited Jan. 27, 2017).

[8] Id.

[9] Nevada v. United States DOL, No. 4:16-CV-00731, 2016 U.S. Dist. LEXIS 162048, at *33 (E.D. Tex. Nov. 22, 2016).

[10] Id. at *8-*9.

[11] Id. at *10-*12.

[12] Id. at *12.

[13] Id. at *15.

[14] Id.

[15] Nevada, 2016 U.S. Dist. LEXIS 162048, at *15.

[16] Id. at *15-*16.

[17] Id. at *16 (quoting 29 U.S.C. § 213(a)(1)).

[18] Id. at *16-*17.

[19] Id. at *17-*18.

[20] Nevada, 2016 U.S. Dist. LEXIS 162048, at *18.

[21] Id. at *18.

[22] Id. at *18-*19.

[23] Id. at *19.

[24] Id. at *22.

[25] Id. at *24-*25.

[26] Nevada, 2016 U.S. Dist. LEXIS 162048, at *

[27] Id. at *30

[28] Id. at *32

[29] Id.

[30] Merrit Kennedy, Obama Administration Appeals Judge’s Ruling to Block Overtime Pay Rule, NPR (Dec. 1, 2016 2:27PM EDT),

[31] Tim Devaney, Trump faces tough decision on overtime rule, The Hill (Nov. 23, 2016 6:34 PM EST),

[32] Id. See also 5 U.S.C. § 801 et seq.

“He Said What?!”: SCOTUS Considers Juror Impeachment for Racist Remarks Made During Deliberations

By: Kyle Weaver[1]

In October 2016, the Supreme Court of the United States heard oral arguments[2] in Pena-Rodriguez v. Colorado;[3] the issue: whether juror testimony about racist remarks made by other jurors during secret deliberations is permitted to overturn a guilty verdict. A layperson’s common sense says “duh,” but both Colorado and federal law say otherwise. Rule 606(b) of the Colorado Rules of Evidence, which mirrors Federal Rule 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.[4]

This rule is commonly referred to as the “no impeachment rule.” Under such, there is a blanket ban on juror testimony, either live or by affidavit. Exceptions to the general prohibition are narrow, and are limited to testimony concerning: “(1) whether extraneous prejudicial information was improperly brought to the jurors’ attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.”[5]

The rule against juror testimony long predates codification in the Federal Rules of Evidence, tracing its roots as far back as Lord Mansfield.[6] The relatively new Federal Rules and their State counterparts strike a careful balance between “freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment” on one hand, and “irregularity and injustice” created by unimpeachable verdicts on the other.[7] Courts in jurisdictions that follow the rule are steadfast in their application of the rule, even in particularly egregious circumstances. For example, in Tanner v. United States, the Supreme Court upheld the Rule and refused to receive juror testimony that several jurors consumed alcohol, marijuana, and cocaine during breaks, and had slept through portions of the trial.[8]

The Pena-Rodriguez case challenges the existing no-impeachment rule, and asks whether a juror’s blatantly racist remarks made during deliberations and given as a reason to find the defendant guilty violate the accused’s Sixth Amendment right to a fair trial.[9] In Pena-Rodriguez the accused, Miguel Angel Pena Rodriguez, allegedly groped two Colorado teenagers in a dark bathroom of a Colorado horse racing track.[10] Pena-Rodriguez was later identified by the victims while Pena-Rodriguez was detained by police for questioning.[11] Nevertheless, Pena-Rodriguez proceeded to trial, arguing that he had been misidentified. After deliberating for a lengthy period and receiving an Allen charge,[12] the jury returned guilty verdicts on three misdemeanor charges but could not reach a consensus on the felony charge. The trial court accepted the three misdemeanor guilty verdicts and declared a mistrial on the felony charge.

Following dismissal of the jury, counsel for Pena-Rodriguez remained in the courthouse and spoke with several jurors who wished to speak about what had occurred during deliberations.[13] Defense counsel obtained affidavits from two jurors after learning that another juror had expressed bias toward Pena-Rodriguez and his alibi witness because both were Hispanic.[14] The juror affidavits revealed several racially biased statements made by Juror H.C., among them:

  • “[The defendant] did it because he’s Mexican and Mexican men take whatever they want.”
  • “[The defendant] was guilty because in [Juror H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.”
  • “Mexican men [are] physically controlling of women because they have a sense of entitlement and they think they can ‘do whatever they want’ with women.’”
  • “[W]here [Juror H.C. used to patrol], nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.”
  • “[T]he alibi witness [wasn’t] credible because, among other things, he was ‘an illegal.’”[15]

After receiving the jurors’ affidavits, the trial court expressed regret about Juror H.C.’s apparent bias toward Mexican men, but nevertheless determined “that the juror’s expression of racial animus could not form the basis of a new trial because Colorado’s no-impeachment rule . . . prohibits inquiry into what happens in the jury room.”[16] Thereafter, both the Colorado Court of Appeals and the Colorado Supreme Court narrowly affirmed the conviction.[17]

On appeal to the Supreme Court of the United States, petitioner Pena-Rodriguez argued Rule 606(b) seriously infringes on his constitutional right to an impartial jury, and that no State interest justifies such interference.[18] Petitioner highlighted that racial animus is odious in all respects, and that barring evidence that racial prejudice infected deliberations left himself and other criminal defendants with no meaningful opportunity to vindicate the right to an impartial jury.[19] Pena-Rodriquez argued that jurors should not be relied upon to bring forth evidence of racial bias during deliberations because most jurors don’t realize such bias is legally impermissible.[20] Petitioner argued, unlike juror intoxication which may have physical manifestations, evidence of racial bias during deliberations may never come to light.[21] Further, Pena-Rodriguez noted that questioning potential jurors during voir dire was unlikely to uncover racial prejudices because voir dire about racial bias is not always permitted, nor are racially biased jurors likely to be forthcoming about the same.[22]

Petitioner next argued “[t]he secrecy of the jury room is not—and has never been—inviolate.”[23] Petitioner explained courts have long admitted juror testimony about misconduct during deliberations, including injections of racial bias, without any appreciable negative side effects.[24] Petitioner highlighted that twenty states presently allow juror testimony regarding racially biased remarks in the jury room, and that only three states (including Colorado) expressly forbid such testimony.[25] Pena-Rodriguez next addressed the traditional policy arguments for prohibiting juror testimony—free and frank discussion, juror harassment, finality, “administrability,” and public confidence in the administration of criminal justice—and argued that each did not justify ignoring juror testimony about racial bias during deliberations.[26] At oral argument, counsel for Petitioner urged the Court to adopt a two part inquiry to determine whether deliberations were tainted by racial bias. Petitioner suggested that the trial court should first hear evidence of what was said during deliberations, and next determine whether there is a reasonable probability that the verdict was infected by racial bias.[27] Counsel contended “It’s very much like what courts do every day when there’s a bad jury instruction.”[28]

The State of Colorado began its oral argument and its brief in opposition, noting “[n]o one disputes that racial bias is reprehensible and has no place in the jury room. The question here is whether one particular method of addressing racial bias among jurors—post-verdict inquiry into jury deliberations—is constitutionally compelled despite wide acceptance of the no-impeachment rule.”[29] The State next argued four procedural safeguards effectively detect and address racial bias among jurors: 1) voir dire; 2) the fair cross-section requirement of the Sixth Amendment; 3) Batson v. Kentucky’s guarantee that jurors are selected on their ability to evaluate the evidence; and, 4) jury size and the requirement of unanimity ensure verdicts are based on the evidence and the law.[30] The State next argued no-impeachment rules serve five vital government interests: 1) concern that post-verdict examination of jurors will inhibit discussion of proper and improper topics alike and prevent full and frank deliberations; 2) the threat to verdict finality; 3) incentive to harass jurors; 4) public confidence in the jury system; and 5) encouraging jury independence.[31] The State concluded, arguing that Colorado and other states have carefully balanced the rule and the competing policy rationales behind it, and that undermining such policy justifications would lead state and federal courts to “draw lines among different types of biases, leading to unfair outcomes among defendants with substantial Sixth Amendment claims that fall outside Petitioner’s rule.”[32]

The Court has a difficult task before it. In this case, it is quite clear that some level of racial bias entered the jury room. Frankly, common sense and notions of fairness would resoundingly answer this question in favor of Pena-Rodriguez. However, the difficulty is that not all cases will be this clear cut. Allowing post-verdict juror impeachment in this case may pave the way for challenges in every criminal case, upsetting the finality of jury verdicts, postponing sentencing, overwhelming state trial and appellate courts, and flooding federal courts with habeas petitions. Moreover, if the Court finds post-verdict juror impeachment for race necessary to a fair trial under the Sixth Amendment, where will the Court draw the line? Subsequent cases may raise the issue of gender, religion, or other biases overheard in the jury room. On the other hand, the Sixth Amendment’s command that every criminal defendant be given a fair and impartial trial must not be taken lightly.

The Court has not indicated when it will release its opinion. To receive the most up to date news and analysis of this case and other pressing legal issues, be sure to “Like” the Cumberland Law Review on Facebook, and closely follow the Cumberland Law Review’s website,

[1] Candidate for Juris Doctor 2017, Cumberland School of Law, Samford University, B.S. Finance and Human Resources Management, Florida State University.

[2] A recording and transcript of the arguments can be found at:

[3] No. 15-606.

[4] C.R.E. 606(b) (emphasis added).

[5] Id.

[6] See Rule 606(b) Federal Advisory Committee Note.

[7] Id.

[8] 483 U.S. 107 (1987).

[9] The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” U.S. Const. amend. VI.

[10] Brief for Petitioner at 4–5, Pena-Rodriguez v. Colorado, (No. 15-606).

[11] Id. at 5.

[12] Id. at 6. An Allen charge is given to juries that report being deadlocked. The name is derived from Allen v. United States, 164 U.S. 492 (1896) in which the Supreme Court permitted a jury instruction which encouraged jurors in the minority faction to reconsider their views. In this case the court told the jury “It is your duty to consult with one another and to deliberate with a view of reaching a verdict. In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced that it is erroneous.” Brief for Petitioner, at 6.

[13] Id. at 7.

[14] Id. at 7–8.

[15] Id. at 8.

[16] Id. at 9.

[17] Id. at 9-10.

[18] Brief for Petitioner, at 17, 28.

[19] Id. at 18–19.

[20] Id. at 22.

[21] Id.

[22] Id. at 24.

[23] Brief for Petitioner, at 28.

[24] Id. at 29.

[25] Id. at 30.

[26] Id. at 33–45.

[27] MIGUEL ANGEL PENA-RODRIGUEZ, Petitioner v. COLORADO, Respondent

Oral Argument – October 11, 2016,

[28] Id.

[29] Brief for Respondent, at 3 Pena-Rodriguez v. Colorado, (No. 15-606).

[30] Id. at 15.

[31] Id. at 18

[32] Id.


Law Review’s Lindsey Catlett provides a brief summary of the Alabama Supreme Court’s recent decision in Stinnet v. Kennedy. The case centers around the liability of a physician in connection with the death of an unborn pre-viable child and the rights of mothers to seek civil damages for miscarriages.  Included in the summary is an outline of the court’s reasoning and the possible effects the ruling might have on those who find themselves in similar situations.

The Cumberland Law Review hopes its readers will find this article and our other online content to be helpful in keeping up with developments in our dynamic legal system.



Lindsey Catlett[1]

On December 30, 2016, the Alabama Supreme Court clarified its interpretation of rights given to unborn pre-viable children and the liability of physicians who contribute to the termination of pregnancies in Stinnett v. Kennedy.[2] On May 11, 2012 Kimberly Stinnett, then six weeks pregnant, began experiencing abdominal pain and fever.[3] Dr. Kennedy of Women’s Care Specialist P.C. was alerted to Stinnett’s distress while taking calls on behalf of Stinnett’s regular obstetrician.[4] Stinnett and Kennedy met at the emergency room where Kennedy performed a dilation and curettage[5] and laparoscopy to determine if the pregnancy was ectopic.[6] The operative report from the procedures concluded that there was “no evidence of an ectopic pregnancy.”[7] Despite those results, Kennedy still had “a high suspicion” that the pregnancy was ectopic and administered methotrextate. The drug is used to treat ectopic pregnancies by terminating the pregnancy.[8] Several weeks later, Stinnett suffered a miscarriage and subsequently brought suit against Dr. Kennedy and her employer, Women’s Care Specialist P.C.[9]

Stinnett alleged that Kennedy had committed medical negligence and had caused the wrongful death of her unborn fetus for which she sought damages under Alabama’s Wrongful Death Act.[10] The Act provides that an action may be brought, “when the death of a minor child is caused by the wrongful act, omission, or negligence of any person, persons, or corporation, or the servants or agents of either, the father, or the mother.””[11] Previously, in Mack v. Carmack, the Alabama Supreme Court determined that Alabama’s Wrongful Death Act permits an action for the death of a pre-viable fetus.

Kennedy and Women’s Care Specialist P.C. argued that the decision in Mack was based on the Brody Act which provides: “an unborn child in utero at any stage of development, regardless of viability” is included in the definition of a person that could be a victim of a homicide. The Act also contained an exception that prevented imposition of criminal liability on a physician for the death of a nonviable fetus as a result of “mistake, or unintentional error on the part of a licensed physician.” Kennedy argued that because the court had applied the Brody Act’s definition of a “person” in Mack, the court should also apply the Act to absolve physicians, like Kennedy, from civil liability for the death of a fetus. The trial court accepted the argument and granted Kennedy’s motion for summary judgment on the wrongful death claim. Thereafter, Stinnett’s remaining claim went before a jury which rendered a verdict in favor of Kennedy.[12]

Stinnett appealed the dismissal of her wrongful death claim to the Alabama Supreme Court. On appeal, the court reviewed the trial court’s decision, focusing on

whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail.[13]

Like the trial court, the Alabama Supreme Court largely relied on its earlier decision in Mack to reach its decision.[14] Specifically, the court focused on the context surrounding the Mack decision. The court noted that Mack had overturned the court’s earlier decisions in Gentry v. Gilmore[15] and Lollar v. Tankersley[16] where the court determined that Alabama did not recognize a cause of action for the wrongful death of a pre-viable fetus.[17] The Alabama Supreme Court next discussed Hamilton v. Scott,[18] which was decided less than a year after Mack.[19] Hamilton, like Stinnett, was a wrongful death action brought by a plaintiff who claimed that her medical providers’ negligence caused the loss of her pre-viable fetus.[20] The court reversed summary judgment in favor of the defendants and remanded the case, [21] stating:

As set forth in Mack and as applicable in this case, Alabama’s wrongful-death statute allows an action to be brought for the wrongful death of any unborn child, even when the child dies before reaching viability. Applying our holding in Mack, . . . supra, we conclude that the summary judgment, insofar as it held that damages for the wrongful death of a pre-viable unborn child were not recoverable, must be reversed and the case remanded for the trial court to reconsider the defendants’ summary judgment motions in light of this Court’s holding in Mack.[22]

The court’s decision in Hamilton strongly supported Stinnett’s argument, because Hamilton was handed down after Mack and did not exclude medical care providers nor apply the exception found in the Brody Act.[23]

The court next turned to the language of the Brody Act relied upon by Kennedy:

Mistake, or unintentional error on the part of a licensed physician or other licensed health care provider or his or her employee or agent or any person acting on behalf of the patient shall not subject the licensed physician or other licensed health care provider or person acting on behalf of the patient to any criminal liability under this section.[24]

The Alabama Supreme Court looked at the plain meaning of the text and determined that it was creating an exception that applied only to a question of criminal liability.[25] Because Stinnett’s cause of action was civil under Alabama’s Wrongful Death Act, the court declined to apply the exception.[26]

The court recognized the public policy arguments set forth by Kennedy,[27] namely that physicians treating both a mother and fetus are in a unique situation which warrants protection from civil liability.[28] Defendants contended that it would not be logical to subject these medical care providers to civil liability for a decision to “preserve the life and health of the mother by clearing an unsustainable pregnancy.”[29] The Alabama Supreme Court disagreed, countering that such physicians are already given a certain amount of protection from civil liability under the Alabama Medical Liability Act[30] which requires plaintiffs in such cases to prove “that the injury or death was proximately caused by a deviation from the standard of care proven, generally, by expert testimony from a similarly situated health-care provider.”[31]

As a result, the Alabama Supreme Court reversed the trial court’s grant of summary judgment and remanded for further proceedings.[32] The court’s decision makes clear that a physician’s exemption from criminal liability under the Homicide Act cannot be extended to immunize a physician from tort liability for the death of a pre-viable fetus. Thus the court’s decision provided Stinnett and others in her position with an opportunity to seek civil damages for the loss of their unborn fetuses as a result of medical negligence.

[1] Candidate for Juris Doctorate, May 2018, Cumberland School of Law, Samford University, B.A. Ouachita Baptist University.

[2] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 (Ala. Dec. 30, 2016).

[3] Id. at *1.

[4] Id.

[5] A curettage is a surgical procedure in which the cervix is dilated and tissue is removed from the lining of the uterus. Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *1 (Ala. Dec. 30, 2016).

[6] Id.

[7] Id.

[8] Id.

[9] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *2 (Ala. Dec. 30, 2016).

[10] Id.

[11] Ala. Code §6-5-391(a) (1975).

[12] Stinnett v. Kennedy, No. 01CV2012903943, 2016 WL 7049095 (Ala. Cir. Ct. May 6, 2016).

[13] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *3 (Ala. Dec. 30, 2016) (quoting Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala. 2007).

[14] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *4 (Ala. Dec. 30, 2016).

[15] Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993).

[16] Lollar v. Tankersley, 613 So. 2d 1249 (Ala. 1993).

[17] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *4 (Ala. Dec. 30, 2016) (noting that “Lollar and Gentry halted this trend by concluding that ‘the term “minor child” in § 6–5–391 does not include a fetus that dies before becoming able to live outside the mother’s womb.”) (quoting Gentry v. Gilmore, 613 So. 2d 1241, 1244 (Ala. 1993)).

[18] Hamilton v. Scott, 97 So. 3d 728 (Ala. 2012).

[19] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *10 (Ala. Dec. 30, 2016).

[20] Hamilton v. Scott, 97 So. 3d 728, 729 (Ala. 2012).

[21] Id. at 737.

[22] Id. at 735.

[23] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *10 (Ala. Dec. 30, 2016).

[24] Ala. Code §13A-6-1(b) (1975).

[25] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *11 (Ala. Dec. 30, 2016).

[26] Id.

[27] Id. at 12.

[28] Id.

[29] Id.

[30] Id.

[31] See Ala. Code §6-5-481(9) (1975).

[32] Stinnett v. Kennedy, No. 1150889, 2016 WL 7488255 at *16 (Ala. Dec. 30, 2016).