Author: guulr

The Infamous, Wildly Misunderstood Hot Coffee Case

Posted on by guulr in Uncategorized

Andrew Sturgeon is a junior in the College, where he majors in Government and Psychology. Born and raised in the San Francisco Bay Area, Andrew is an avid athlete, gym goer, and board game enthusiast. He is currently a Blog Writer for the Georgetown University Undergraduate Law Review.

In 1992, Stella Liebeck sued McDonald’s after suffering third-degree burns from spilled takeout coffee that she had ordered from the drive-through.[1] Now known as the “hot coffee case,” Liebeck’s action is chastised by many as an egregious example of a frivolous lawsuit. To an uninitiated observer, it may seem that Ms. Liebeck capitalized on a silly mistake to swindle the fast food giant out of millions.[2] How could somebody sue a franchise because the hot coffee they ordered was hot? However, the “hot coffee case” is as infamous as it is misunderstood. A thorough assessment of the case reveals that Liebeck was not a trickster but a victim, and McDonald’s was not innocent but rather egregiously culpable for Liebeck’s burns and subsequent suffering.

First, it is essential to define the verifiable facts of the case, as well as how they differ from the common narrative. On a February morning in 1992 Albuquerque, 79-year old widow Stella Liebeck sat in the passenger seat of her grandson’s car in the McDonald’s drive-thru ordering a meal. After receiving their food, along with one hot coffee, the two pulled into a parking spot to eat. These simple contextual facts already contradict the poisoned popular narrative, which often holds that Liebeck sat in the driver’s seat of a moving vehicle when she spilled her coffee due to negligence. In reality, Liebeck was in the passenger seat of a motionless vehicle. Since the car did not have cup holders, Liebeck placed her takeout cup in between her legs. While removing the lid to add cream and sugar, Liebeck spilled the coffee on her lap, sending her body into immediate shock and covering her thighs and pelvic area with third degree burns. Liebeck was immediately taken to a hospital where she remained for a week, undergoing multiple skin graft surgeries, debridement, and whirlpool therapy. Liebeck would continue to suffer from chronic pain and disability for the rest of her life. 

When Liebeck’s legal team demanded $20,000 to cover her medical expenses, McDonald’s countered, offering a mere $800 and sending the case to trial. Liebeck sued on the grounds that McDonald’s knowingly sold a defective product that violated the implied warranties of merchantability and fitness as per Sections 2-314 and 2-315 of the Uniform Commercial Code.[3] Under the implied warranty of merchantability, a vendor assumes liability for a defective product that cannot be used for its normal purpose.[4] As per the warranty of fitness, if a seller is cognizant of a buyer’s intended purpose for their product, the seller must guarantee that the product they sell is fit for such a purpose. 

As it applies to the case at hand, Liebeck’s claims were twofold: first, that she had been sold defective coffee that could not serve its expected or normal purpose, and second, that such a defect had caused her severe injury.

Despite popular belief, these claims were well-founded and backed by the facts of the case. Crucially, the coffee sold to Liebeck was not merely hot; it was scalding. As revealed by employee testimony, McDonald’s intentionally kept its coffee between 180 and 190º Fahrenheit. The sale of McDonald’s coffee at this temperature was no malfunction or mistake; it was the codified corporate standard. Experts noted that a mere second of contact with liquid at this temperature is sufficient to cause third degree burns.[5] Critically, McDonald’s could not plead ignorance to this biological fact. Prior to Liebeck’s accident, the fast food giant had already been made aware of over 700 unique incidents involving coffee induced burns over the previous decade.[6] McDonald’s own quality assurance manager testified that “at that high temperature the coffee is a hazard.”[7]

What, then, was the defense provided by McDonald’s for selling their coffee at such ludicrous, hazardous temperatures? The fast food giant offered two core rationalizations, though neither were particularly compelling. First, McDonald’s asserted that coffee at 190º Fahrenheit has a superior taste, and thus was serving its normal and expected purpose. But of what importance is the taste of a liquid that cannot safely be tasted? Testimony established that it is medically indisputable that coffee at this temperature is simply undrinkable. As such, its taste is irrelevant. Second, McDonald’s offered a familiar yet juvenile contention: hotness is an inextricable characteristic of hot coffee, and thus customers cannot sue on the grounds of its temperature. McDonald’s testified that market research had told them that customers “want hot coffee, they want it steamy hot, and they expect to get it that way.”[8] However, it would be preposterous to assert that a customer’s desire for heat trumps their desire for a safe, drinkable liquid. Further, such an argument disregards the wide range encompassed by the descriptor “hot.” Yes, coffee is typically hot, but so is the surface of the sun. Thus, the mere label of “hot”—with no further specification—is an entirely inadequate warning of the severe health hazard posed by a liquid at 190º Fahrenheit. Consumers simply cannot be reasonably expected to assume that “hot” really means “dangerously scalding.”

Unsurprisingly, the jury was not convinced of McDonalds’ rather hollow defense; the fast food giant failed to defend the merchantability and fitness of its product. Liebeck was awarded $2.86 million in damages, but the two parties later entered a post-verdict settlement for an undisclosed amount. 

The fast food giant would take swift but silent action upon conclusion of the case—just a day after the verdict, it was reported that the Albuquerque McDonald’s, where Liebeck suffered her injuries, was selling its hot coffee at a much safer 158º Fahrenheit. The cups were also labeled with a far more extensive and descriptive temperature warning

It would also quickly become evident that McDonald’s PR team was far better equipped than its legal department. The fast food giant wasted no time in embarking upon a thorough smear campaign aimed at excusing itself from culpability and painting Liebeck as the money-hungry villain. Over the next few months, through a calculated series of press releases and statements to the media, McDonald’s worked tirelessly to distort public perception of the fundamental facts of Liebeck’s case. Tragically, they were successful, and Liebeck was made the poster child of the “frivolous lawsuit” phenomenon. CBS News Anchor Andy Rooney remarked that the case was proof that “suing has become a popular American pastime.”[9] Following Liebeck’s passing, TIME Magazine sarcastically lamented that she “didn’t live to see the addition of iced coffee to the McDonald’s menu.”[10] As the media continued to mock a justified lawsuit, the facts of the case were quickly swept aside. Even lawmakers bought into such disinformation. Former Ohio Representative John Kasich argued that Liebeck’s case “in itself is enough to tell you why we need tort reform.”[11] Perhaps the most egregious example, columnist Randy Cassingham created the “Stella Awards” in Liebeck’s name, a book series dedicated to “ridiculous” and “bogus” cases.[12]

The true story is the one far less told. Judy Allen, Liebeck’s daughter, remarked that her mother had lost all quality of life following her injuries, and the settlement money merely paid for her medical bills and a live-in nurse. Yet Liebeck is continuously presented as a conniving tactician who exploited the legal system to “win big.” Ultimately, what could have been celebrated as an advancement of corporate accountability was instead chastised as a deplorable reflection of flaws in our legal system. Such a discrepancy cements this case as one of the most shameful stains on legal discourse.

[1] Liebeck v. McDonald’s Restaurants, 1995 WL 360309 (1994).

[2] Elizabeth Gam, Stella Liebeck vs. McDonald’s Restaurants, H2O (May 29, 2018), https://h2o.law.harvard.edu/text_blocks/30812

[3] U.C.C §§ 2-314, 2-315

[4] Emilie McGuire & Jeffrey Skinner, The Coffee Case Revisited, ARENTFOX SCHIFF (Mar. 10, 2021), https://www.afslaw.com/perspectives/product-liability-mass-torts-blog/the-hot-coffee-case-revisited-has-proximate-cause#:~:text=In%201994%2C%20Liebeck%20v.,spilled%20McDonald%27s%20coffee%20on%20herself.

[5] General Data About Burns, BURN CENTRE CARE, http://burncentrecare.co.uk/about_burned_skin.html.

[6] The McDonald’s Hot Coffee Case, CONSUMER ATTORNEYS OF CALIFORNIA, https://www.caoc.org/?pg=facts.

[7] Kevin G. Cain, The McDonald’s Coffee Lawsuit, 11 J. Consumer & Com. L. 14 (2007).

[8] Greenlee, Kramer v. Java World, 26 CAP. U. L. REV. at 720-21. 

[9] Andy Simmons, Remember the Hot Coffee Lawsuit? It Changed the Way McDonald’s Heats Coffee Forever, READER’S DIGEST (Jul. 15, 2021), https://www.rd.com/article/hot-coffee-lawsuit/.

[10] Top 10 Outrageous Legal Battles, TIME, https://content.time.com/time/specials/packages/article/0,28804,1899500_1899502_1899510,00.html.

[11] Id.

[12] Randy Cassingham, All True Cases, STELLA AWARDS, https://stellaawards.com/.

The Supreme Court, Educational Affirmative Action, and Its Unfortunate Likely Demise

Posted on by guulr in Uncategorized

Kirit Minhas is a junior in the College, where he majors in English Literature and minors in Journalism and French. He is currently a Blog Writer for the Georgetown University Undergraduate Law Review.

On March 6, 1961, President John F. Kennedy signed Executive Order 10925 which directed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”[1] This measure introduced the institution known in the United States today as affirmative action, which is used today to protect and empower diverse hiring practices within education and career opportunities that are supported by the federal government. Three years later, President Lyndon B. Johnson signed the Civil Rights Act of 1964 into law, which prohibited the discrimination of employees by companies larger than fifteen employees. In 1965, he also issued Executive Order 11246, requiring all government contractors and subcontractors to take affirmative action to create more job opportunities for minorities.[2]

While not explicitly laid out in the executive orders, affirmative action quickly assumed a pivotal role at institutions of higher education in the United States. Racial quotas began to take shape as universities worked to recruit minority students to their campuses; this controversial practice led to litigation from white applicants who felt they were being unfairly discriminated against. One such landmark case, the first in a long series of challenges to the practice of affirmative action at the Supreme Court, was Regents of the University of California v. Bakke. In this case, a white student named Allan Bakke brought a case against the University of California (UC) system after he was twice denied admission to UC Davis’ medical school, despite having higher test scores than admitted minority students.[3] After the California Supreme Court ruled in his favor, the UC system appealed to the Supreme Court. 

UC Davis School of Medicine utilized a racial quota system, reserving 16 out of 100 spots for minority students each year. The central question in this case was whether this system violated the Civil Rights Act of 1964 and the Fourteenth Amendment’s equal protection clause in denying Bakke admission. The ruling ultimately set the precedent for the affirmative action practices we see today. Authored by Justice F. Powell Jr., the opinions upheld the principle of affirmative action but overturned UC Davis’s specific racial quota practice. In his opinion, Justice Powell writes that “the diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element.”[4] This is the essential holding of the ruling—race may be used in what is now known as holistic admissions, but only as one of several broad factors determining diversity on a college campus. Altogether, the opinions written by Powell upheld the right of the university system to use holistic race-based admissions practices while striking down the specificity of the quota system as unconstitutional.

In several challenges since then, affirmative action has been upheld repeatedly, albeit in a rather lukewarm fashion by the nation’s highest court. In 2003, Justice Sandra Day O’Connor wrote for the majority in a narrowly divided 5-4 court in the case of Grutter v. Bollinger. The case, which involved a highly qualified applicant being rejected from University of Michigan Law School, ultimately yielded an opinion that upheld the constitutionality of affirmative action while further narrowing its usage.[5] O’Connor wrote in her opinion that race must be treated on an individual basis for each applicant, and further limited the scope of affirmative action by arguing that “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”[6] Affirmative action continued to be challenged at the Supreme Court again in the cases Fisher v. University of Texas (2013) and Fisher v. University of Texas (2016), which is commonly referred to as Fisher II. The justices essentially deferred a decision in 2013 by sending the case back to the lower court. But in Fisher II, the justices upheld that race-based affirmative action was protected by the 14th Amendment, leading to virtually no change.

With President Trump appointing three conservative justices to the Supreme Court, the makeup of the court has changed drastically in the years since affirmative action was challenged.  Within this current conservative supermajority, the conservative justices have judicial records of being hostile toward affirmative action. Thus, a pair of cases against the University of Carolina and Harvard University seem to be the final nails in the coffin of the practice. 

It is important to reflect on the impacts that a ban on affirmative action can have on educational institutions and their diversity. Affirmative action bans have been upheld on statewide levels via referendums in states like California and Michigan. Research conducted by David Mickey-Pabello as part of the UCLA Civil Rights Project shows that these bans have not exactly yielded the results that they promised. Racial and ethnic diversity has decreased by 26% for Black students and 19% for Hispanic students between 1996, the year when California banned affirmative action, and 2012. The SAT scores of those admitted students have also declined, on average, in both the math and verbal sections.[7] 

Overall, these bans have negatively impacted diversity and academic excellence, while also producing other negative implications. These include decreasing applications from underrepresented minority students and lower numbers of underrepresented minorities entering the pipeline for graduate and professional studies. This further diminishes the diversity of the faculty at universities, perpetuating a negative feedback loop for underrepresented minorities in higher education.[8] While the history of affirmative action in the United States in our judicial system is complicated, it is important to realize the real-life impacts that its ban could hold on its future in many aspects of our society. The “compelling interest” that Justice Powell wrote of in 1978 has not dissipated in the years since he penned his opinion, nor has it in the 20 years since Justice O’Connor wrote her majority opinion in Grutter v. Bollinger. 

[1] Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 8, 1961).

[2] Exec. Order No. 11,246, 30 Fed. Reg. 12319 (Sep. 28, 1965).

[3] Regents of the University of California v. Bakke, Oyez, https://www.oyez.org/cases/1979/76-811.

[4] Regents of University of California v. Bakke, 438 U.S. 265, 315 (1978).

[5] Grutter v. Bollinger, 538 U.S. 306, 310 (2003), Retrieved from Oyez, https://www.oyez.org/cases/2002/02-241.

[6] Id.

[7] David Mickey-Pabello, Scholarly findings on affirmative action bans, UCLA Civil Rights Project (Oct. 26, 2020), https://eric.ed.gov/?id=ED609274.

[8] Id.

The Evolution of Supreme Court Confirmation Hearings

Posted on by guulr in Spring 2022

Serena Barish is a freshman in the College who serves as an assistant editor for
the Law Review.

On January 27, 2022, Associate Justice Stephen Breyer made the announcement that he would be retiring from the United States Supreme Court. President Joe Biden has since nominated Judge Ketanji Brown Jackson to fill his place.[1] Now, as is provided by Article II, Section 2 of the Constitution, the “Advice and Consent of the Senate” is required.[2]  Today, these words have come to mean confirmation hearings, which are scheduled to begin on March 21, 2022.[3] As it stands, the Democratic Party has the ability to confirm Jackson even if no Republican Senators vote to do so, due to Vice President Kamala Harris’s tie-breaking vote.[4] Still, these hearings will force the American public to reckon with the partisanship and bias that confirmation hearings have come to signify.

Confirmation hearings’ inherent tension is underscored by their history. Supreme Court confirmation has not always been so contentious. In fact, there is nothing written into the Constitution about holding confirmation hearings specifically. The first public confirmation hearing was not held until 1916, when Louis D. Brandeis was nominated for the Supreme Court. Brandeis was a controversial figure due to his legal activism and being the first Jewish nominee for this position.[5] In this way, Justice Brandeis distinctly demonstrates the two leading factors that have transformed confirmation hearings into the calamity that they are today: politics and hostility. Now, confirmation hearings resemble a battle, with these forces as their defining feature.

Political division is one of the main tensions at play in Supreme Court confirmation hearings. Despite the claim of Alexander Hamilton that the Courts “will always be the least dangerous” branch of government, [6]  all of the early presidents demonstrated a very clear awareness that it mattered greatly who was sitting on the court.[7] More recently, Justice Scalia attributed the political divisiveness of these confirmations to the larger decisions the court is making.[8] However, Scalia’s analysis seems wildly flawed for two main reasons. First, even as the Court grew immensely in influence as the Warren Court, senators from one party were still willing to vote to confirm nominees of the other.[9] Second, the court still uses the political question doctrine, a principle of justiciability, in which the Supreme Court will decline to rule on cases that ask a question that must be answered by the political branches of government. This principle has been applied throughout the history of the Supreme Court, with Baker v. Carr (1962) often cited as the most prominent example.[10] Though the court does make decisions with great influence, this principle seems to minimize Scalia’s grounds. In this sense, it is not the power of the Supreme Court that is to blame as they avoid this overt partisanship but rather the animosity within the legislature itself.

Until the nomination of Robert Bork and Antonin Scalia, there was no perception of the existence of an “originalist” interpretation, thus a converse interpretation did not exist but was instead the default. Since their nomination, questions around the method of constitutional interpretation have become the norm.[11] In turn, opening this door seems the likely cause for the emergence of questions around the potential decision-making of justices, increasing the politicization of the entire process and thus making these divides much more sharply pronounced, as has been clearly demonstrated in recent hearings.The second clear issue that Brandeis illuminates is the role that hate plays in these hearings. The main cause of the first confirmation hearing was anti-Semitism. Justice Felix Frankfurter was the first nominee to appear in person before the committee to take questions, which was likely due to anti-Semitism as well.[12] That being said, another popular explanation for Frankfurter’s questioning was that directly before him, Hugo Black was confirmed very quickly, only for his proximity to the Ku Klux Klan to then be revealed.[13] As a result, the Judiciary Committee at the time promised to conduct a more open process to make sure they could be sufficiently informed and hopefully avoid this in the future. The potential of these hearings to be used positively is also exemplified in their use of speaking out against Clarence Thomas and Brett Kavanaugh, despite the mishandling of both of their cases. In this regard, there is a clear tension in these hearings between the preservation and prevention of hate.

Finally, this leads to the question of Judge Ketanji Brown Jackson’s hearing. It is clear that Judge Jackson is an abundantly qualified candidate. In addition to the unique experience of having worked as a public defender, she has many similar qualifications to Justice Breyer, as well as her experience on the US District Court for the District of Columbia and the US Court of Appeals for the DC Circuit.[14] However, in the polarized state of our government today, especially in the context of this larger history, even this may not be enough to garner support from the Republican Party. When she was confirmed in 2021 to the Court of Appeals, the second most powerful court in the US, Jackson received the votes of three Republican Senators. Among them was South Carolina Senator Lindsey Graham, who has now said that he is leaning towards voting against her confirmation. Graham has voted for every Supreme Court nominee since 2003, when he came to the Senate, which would make this vote fairly shocking, especially given that even Senate Minority Leader Mitch McConnell has said that Jackson is qualified to sit on the Supreme Court.[15] Republican Senator Susan Collins, who also voted to confirm Jackson previously, has said that Jackson is “impressive”, but is waiting until Senate hearings to decide how to vote.[16] Regardless, Jackson will almost certainly be confirmed. Even still, as Ketanji Brown Jackson is the first Black woman to ever be nominated for the Supreme Court, the hate and political motivations that have led to the current status of confirmation hearings will certainly be at play in determining if she is able to get any votes from across the aisle.

[1]President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, THE WHITE HOUSE (2022), https://www.whitehouse.gov/kbj/

[2] U.S. CONST. art. 2, § 2

[3] Katie Barlow, Jackson’s nomination hearings will begin March 21. Here’s what to expect., SCOTUSblog (3 March 2022), https://www.scotusblog.com/2022/03/jacksons-nomination-hearings-will-begin-march-21-heres-what-to-expect/

[4] Id.

[5] Id.

[6] The Federalist No. 78 (Alexander Hamilton)

[7]Jeffrey Rosen, History of Supreme Court Confirmation Hearings, NATIONAL CONSTITUTION CENTER (6 September 2018), https://constitutioncenter.org/interactive-constitution/podcast/the-history-of-supreme-court-confirmation-hearings

[8] Rosen, supra note 5

[9] Id.

[10] Baker v. Carr, 369 U.S. 186 (1962)

[11] Rosen, supra note 5

[12] Id.

[13] Id.

[14] President Biden Nominates Ketanji Brown Jackson to Serve on the U.S. Supreme Court, supra note 1

[15] Alexander Bolton, Graham signals he’s a likely ‘no’ on Biden SCOTUS pick, THE HILL (9 March 2022), https://thehill.com/homenews/senate/597432-graham-signals-hes-a-likely-no-on-biden-scotus-pick

[16] Oma Seddiq, Susan Collins says she had a ‘lengthy and productive conversation’ with Biden’s ‘impressive’ Supreme Court nominee, INSIDER (9 March 2022), https://www.businessinsider.com/susan-collins-praises-bidens-supreme-court-nominee-as-impressive-2022-3

Retroactivity in Law Can Certain Repeal Legislation Violate the Ex Post Facto Clause?

Posted on by guulr in GUULR Blog

Frank Yang is a sophomore in the college majoring Government and Linguistics with a minor in Portuguese.

There are few clauses in the U.S. Constitution that are simpler in writing than Article I, Section 9, Clause 3, which states: “No…ex post facto Law shall be passed.”[1] The provision is as comprehensive as possible, assigning an absolute prohibition on the passage of any ex post facto law. Intended to apply to both Congress and the states, Article I, Section 10, Clause 1 makes clear that “No state…shall pass any…ex post facto law.” Yet despite such ostensible simplicity, any observer or student of the law will know that there is no sentence in the black letter that does not produce complications.

From Latin, ex post facto literally translates to “from a thing done afterward.”[2] The definition furnished by Giles Jacob’s Law Dictionary of 1739, which was the standard volume of reference for its time, is equally straightforward and says: “a term used in the Law, signifying some Thing done after another Thing that was comitted [sic] before…”.[3] The principle of retroactivity in the law, and specifically retroactive punishment, is thus rendered crystal clear. The only remaining ambiguity, then, is whether ex post facto refers to criminal or civil statutes, or both.

During the drafting of the Constitution, significant debate was had over the precise boundaries of that legal principle. Specifically, the controversy surrounded the reconciliation of the debts of the states and that of a unitary federal government post-Constitution.[4] The conversation surrounding the unabridged ex post facto clause principally pitted George Mason and Patrick Henry against James Madison and Edmund Randolph, among others. Civil statutes concerning the settlement of old monies were to be forbidden under this new Constitution, therefore spelling potential financial ruin for many of the states in the union, Mason argued. Madison and Randolph’s defense hinged largely on technicality; they cited that the consequences highlighted by Mason and Henry would be staved off by provisions against bills of attainder, which were instances of “capital punishments… without any conviction in the ordinary course of judicial proceedings,” and the common understanding of ex post facto in the common law of the states.[5] Though Mason’s worries were ultimately unassuaged, Madison’s underlying premise that ex post facto implicitly applied only to crimes tended to be correct, albeit amidst an extensive back-and-forth in state courts, state legislatures, and the Supreme Court.

The parameters of ex post facto would be established by the Supreme Court shortly after the ratification of the Constitution in Calder v. Bull, defining it as:

Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.  2d.  Every law that aggravates a crime, or makes it greater than it was, when committed.  3d.  Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.[6]

When we discuss legal retroaction, it also becomes practically necessary to bring up repeal legislation. Much like the ex post facto clause of the Constitution, the intent of express repeals is perfectly plain — “that the older law shall no longer be operative.”[7]

Of course, the frequency of repeal legislation is very low, hence why the prevalence of this question is unsurprisingly rare. Between 1890 and 2009, the average number of repeals per year hovered around two; the total peaked at six in the 76th Congress of 1939 to 1941.[8] Repeals are, by their nature, immemorable; they erase an existing law turned so unpopular that a future legislature felt it necessary to address it with urgency. Their effect is, in essence, to undo unforeseen consequences of legislative enforcement. Yet the process of legislative erasure, especially when combined with the prohibition on ex post facto laws, becomes rather murky.

The chief example of this complexity is State v. Ramseur, which reached the North Carolina Supreme Court and was decided in June 2020. The case revolves around the Racial Justice Act (“RJA”) passed by the state’s General Assembly in 2010 and its subsequent repeal in 2013. Of relevance was a provision of the RJA that “designed a new substantive claim that fundamentally changes what is necessary to prove racial discrimination and, in return, provides a limited grant of relief that is otherwise unavailable,” in hopes of reducing racial bias in death penalty sentencing,[9] Defendant Andrew Darrin Ramseur, who was convicted of murder and sentenced to death, sought this newly available relief. Under the RJA, he was entitled to a hearing to determine whether racism had significantly influenced his sentencing, but before the trial court ruled on his motion, the RJA was completely repealed. The trial court thus dismissed the defendant’s claim on the basis that it was now void, and so he proceeded to sue the state on grounds of ex post facto violation. The question then arises: Is it unconstitutional to revoke a novel potential for substantive relief when such a legal avenue was not open during the course of the original trial? 

In the majority opinion, Justice Anita Earls, who is currently on President Biden’s shortlist for the Supreme Court, extensively covers this intersection of repeal legislation and ex post facto, ultimately reversing the lower court decision.[10] Citing restrictions on arbitrary and potentially vindictive legislation and citizens’ fundamental interest in the fairness of their government, the Court held that the RJA Repeal could not apply retroactively to pending motions under the RJA.[11] The concrete nature of the disadvantage handed down by the repeal, namely capital punishment, was also of great relevance, as the severity of the sentencing attached to the crime was distinctively high.[12] 

The dissent’s response to the majority opinion rested primarily on the unique situation that repeal legislation reconfigures preexisting sentences, in that it leaves the “defendant in precisely the same legal situation” as he was in when he was convicted.[13] No additional punishment was levied upon him by the RJA Repeal; the only effect was that a possible avenue of relief was erased. Furthermore, the Court’s decision impinged on the people’s authority to delineate the circumstances of the imposition of the death penalty through the General Assembly.[14]

Though this summary of the arguments on each side cannot do full justice to the nuances of the case in its entirety, it nevertheless demonstrates the myriad of technicalities involved in combining seemingly straightforward legal acts and clauses. What State v. Ramseur reveals are the complex questions that arise when criminal proceedings and legislative history follow parallel but incongruous timelines. The backlog and delay that are unwanted but immutable parts of our legal system force trial judges to contend with the possibility that the laws they are applying now may not be in effect by the time they actually reach a case in which that law was once pertinent. Of course, it is exceedingly unlikely that such a possibility would collide with either ex post facto concerns or repeal legislation.But while the infrequency of their intersection rarely manifests itself into practical instances of litigation, it is worth examining, at least in hypotheticals, how such instances could be resolved in the future.

[1]U.S. Const. art. I, § 9, cl. 3.

[2]“Ex post facto.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/ex%20post%20facto.

[3] William W. Crosskey, True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539, 545 (1947).

[4]Id. at 548.  

[5] Joseph Story, Commentaries on the Constitution of the United States, 3 Boston, 1338 (1833); Id. at 550.

[6] Calder v. Bull, 3 U.S. 3 Dall. 386 386 (1798).

[7] Carl Jr. Seeman. The Retroactive Effect of Repeal Legislation, 27 Ky. L. J. 75, 79 (1938).

[8] LegBranch Team, When Does Congress Repeal Legislation? A New Dataset of Major Repeals from 1877-2012 Provides Answers, LEGBRANCH (October 19, 2015), https://www.legbranch.org/2015-10-19-when-does-congress-repeal-legislation-a-new-dataset-of-major-repeals-from-1877-2012-provides-answers/

[9] State v. Ramseur, 862 S.E.2d 354, 28 (N.C. 2020).

[10] David Larson, Anita Earls Would Join Short List of NC justices if picked for US Supreme Court, THE NORTH STATE JOURNAL (February 2, 2022), https://nsjonline.com/article/2022/02/anita-earls-would-join-short-list-of-nc-justices-if-picked-for-us-supreme-court/

[11] Id. at 27.

[12] Id. at 29.

[13] Id. at 40.

[14] Id. at 41.

When Children Stop Being Children: Reevaluating the Transfer of Juvenile Cases to Adult Courts

Posted on by guulr in Spring 2022

Paneez Oliai is a third-year student in the College, where she majors in
History and Psychology with a minor in Government. She is currently a managing
editor for the Georgetown University Undergraduate Law Review.

With the recent push in Maryland to end mandatory direct file, the charging of juveniles as adults is as relevant of a debate as ever.[1] As a matter of fact, the issue has been hotly debated across the nation: in 2019, California lawmakers passed a state law requiring that youths under the age of 16 be tried in juvenile court. The legislation was challenged by prosecutors across the state, but the law remained. The California Supreme Court unanimously decided in O.G. v. Superior Court to uphold the policy and its limits on the transfer of juvenile cases to adult courts. Prosecutors had alleged that the ability to try juveniles charged with certain crimes as adults serves to deter crime, appropriately punish serious violations of the law, and bring justice to victims.[2] Yet a number of comprehensive, nation-wide reports illustrate otherwise.

Juveniles are typically transferred to adult courts through one of three methods: judicial waiver, mandatory direct file, and prosecutorial direct file. A judicial waiver occurs when juvenile court judges decide to transfer the child to adult court following their waiver or fitness hearing.[3] Mandatory direct file, on the other hand, is implemented when a youth is automatically transferred to adult court due to the nature of the crime being discussed, while a prosecutorial direct file allows prosecuting attorneys to file the case in adult court directly, without the approval of a judge.[4] Reports such as the 2012 Bulletin of the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency’s Prevention, however, have found issues with all three methods of juvenile transfer to adult court.[5]

Policies such as mandatory direct file, for instance, ignore the context and idiosyncratic circumstances of individual cases; instead of offering flexible guidelines under which juvenile cases may be transferred to adult courts, the system relies on a blanket heuristic. Decisions like these thus become cut-and-dry, devoid of nuance. Direct file thus makes it impossible for courts to receive the full picture, an effect that becomes particularly dangerous when the defendants are children of color. With the historic and systemic deprivation of communities of color from safety, vital resources, and social supports, it is unsurprising that the developmental environment of each child becomes vital to their case. Yet when policies such as direct file are implemented, this valuable context is effectively ignored, making it more likely for children of color to be transferred to adult courts, convicted, and given harsher sentences.

The alternative, prosecutorial direct file, presents an equally unattractive reality. Unfortunately, prosecutorial direct file policies include few if any standards, guidelines, or even recommendations for considerations.[6] This vagueness surrounding prosecutorial discretion laws precludes defendants from testing the decision, giving immense and unquestionable power to prosecutors to undermine the juvenile justice system.

Critically, all three systems remain problematic even when issues regarding the method of transfer are resolved; when the very consequences of transferring youths are negative, altering the methods is hardly helpful. In fact, reports such as those discussed above have demonstrated that the focus on penalizing youth is more vindictive than rehabilitative. When juveniles are denied the ability to be tried in a system constructed with their rehabilitation and unique needs in mind, the very purpose of juvenile court systems is again undermined. Adult courts focus on the question of objective guilt versus innocence, lacking the consideration of environmental factors and contexts that juvenile justice systems emphasize.

This context, however, matters far more for children than it does for adults. At such a critical point in their physical and psychological development, environmental influences play a major role in shaping the decisions and behavior of children. This makes it difficult for prosecutors to allege that a child utilizes the same agency and decision-making processes as an adult when they commit a crime. This very lack of agency, as a matter of fact, is one of the guiding principles underlying the many protective laws regarding juveniles. In other words, prosecutors simply cannot have it both ways; either children are independent and self-aware enough to make a number of decisions that they are currently restricted from, or they should be regarded with greater consideration of their environmental factors.

Again, this lack of context is particularly harmful for children of color—just as in the issue of direct file, the socioeconomic circumstances of children of color leave them less protected against such destructive policies. Children of color are more likely to experience underserved neighborhoods, difficulty in retaining private counsel, and increased surveillance and violence at the hands of police.[7] This makes youth of color vastly more likely to be transferred to adult courts, where they receive a disproportionately large amount of convictions and correspondingly inequitable sentences.[8] By recognizing the complex relationship between the behavior of juveniles and their worlds, juvenile justice systems serve to correct environmental issues that affect children of color in particular, repairing the harmful effects of systemic inequalities.

Adult courts, on the other hand, leave little room for growth. When an adult enters the justice system, much of their development has already been completed. Yet a child tried and sentenced through adult systems is effectively frozen in their development. They are given no support in mending harmful behaviors, or any hope for reintegration into communities and families where they might have been positive forces. Disturbingly, the trying of youths in adult courts is ineffective even in achieving the goal of deterrence: several studies have revealed that juveniles tried and sentenced in adult courts had higher recidivism rates than those charged with similar offenses in juvenile courts.[9] Clearly, the transfer of juveniles to adult courts creates positive feedback loops in which children fall behind in their development, are given no opportunity to heal, and are repeatedly returned to an ineffective justice system. The focus when it comes to juveniles thus cannot be punishment. The debate regarding the trying of juveniles as adults demands that we reevaluate the goals and priorities of our justice system. It is evident that the cost to society from the neglect of restorative justice is far too much for both our systems of justice and our marginalized communities to bear. Fortunately, the situation is not entirely hopeless: more and more state courts are beginning to reevaluate their stances on harmful judicial practices like mandatory direct file, securing the future of juvenile justice one policy at a time.

[1] Brian Witte, Supporters of Juvenile Justice Reform Hopeful in Maryland, US NEWS (2021), https://www.usnews.com/news/best-states/maryland/articles/2021-12-21/supporters-of-juvenile-justice-reform-hopeful-in-maryland.

[2] O.G. v. Superior Court, 11 Cal.5th 82, 92 (2021)

[3] Celia Harris et al., Juvenile InJustice: Charging Youth as Adults is Ineffective, Biased, and Harmful Human Impact Partners, HUMAN IMPACT (Feb., 2017), https://humanimpact.org/hipprojects/juvenile-injustice-charging-youth-as-adults-is-ineffective-biased-and-harmful.

[4] Id. at 6.

[5] Edward P. Mulvey & Carol A. Schubert, Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–20 (2012).

[6] Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention 1–28 (2011).

[7] Harris et al., Juvenile InJustice, 14.

[8] Id. At 7-8.

[9] Craig A. Mason et al., Impacting Re-Arrest Rates Among Youth Sentenced in Adult Court: An Epidemiological Examination of the Juvenile Sentencing Advocacy Project, 32 Journal of Clinical Child & Adolescent Psychology 205–214 (2003).Project; 2001. http://ncfy.acf.hhs.gov/library/2001/re-arrest-rates-among-youth-sentenced-adult-court.; Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Juvenile Justice Bulletin 1–12 (2008).

Climate Refugees: The Case of Ioane Teitiota and Gaps in International Law

Posted on by guulr in Spring 2022

Angela Tan is a third-year undergraduate student in the School of Foreign Service,
majoring in International Politics. She serves as a Blog Editor on the GUULR staff.

Although climate change is often described as a slow-onset process with effects in the distant future, the Pacific island nation of Kiribati has already started to see its consequences such as fresh water scarcity, decrease in rainfall, contaminated water supply, decline in fish population, erosion of the coastline, and devastating flooding of villages.[1] The elevation of the country averages six feet above sea level, and it is one of the most vulnerable states to rising oceans due to climate change.[2] It is these conditions that motivated people like Ioane Teitiota to migrate from his home country of Kiribati to New Zealand. While working in New Zealand, Teitiota unintentionally overstayed his work visa and needed a renewal, but his case ended up testing the limits of international law for refugees, and revealing gaps in the system designed to protect the most vulnerable.

In Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, Teitiota requested asylum as a “climate change refugee,” citing the effects of climate change in his home country as endangering the lives of both himself and his family. If New Zealand accepted his proposition, climate change refugee status would entitle Teitiota to all protections listed under the 1951 United Nations Convention Relating to the Status of Refugees. However, the New Zealand court rejected his claim, stating it “fell short of 1951 Refugee Convention legal criteria because he was unable to show that by returning to Kiribati, he would suffer ‘a sustained and systematic violation of his basic human rights such as right to life . . . or the right to adequate food, clothing and housing.”[3]

 According to existing international law, the New Zealand court made no error. The 1951 convention defined a refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”[4] This definition was designed to protect individuals fleeing from an imminent threat or danger to their life, but climate change presents a new difficulty. Its consequences may be gradual, but could be devastating for entire countries like Kiribati, which is estimated to become inhabitable due to rising sea levels by the end of the century.[5]

Kiribati is not alone in this situation, and the problem is likely to worsen in the future. Between 2008 and 2014, climate-related natural disasters displaced up to 184.4 million people, and 19.3 million were displaced in 2014 alone.[6] By 2050, it is projected that approximately 200 million to 1 billion people will be displaced by climate change,[7] with the majority of those affected from low-lying areas in East, Southeast, and South Asia.[8]

 So what are the obstacles to expanding the definition of a refugee? One is that there is no consensus on what exactly “climate-induced migration” is. Experts differ in their opinions, and possible definitions include “(1) intensified sudden-onset natural disasters, e.g., storms; (2) slow-onset effects on livelihoods, e.g., chronic drought; (3) regions becoming uninhabitable or incapable of supporting livelihoods, e.g., submerging island states; (4) regions designated environmental high-risk zones; and (5) conflict stemming from resource-scarcity fueled by climate change.”[9] Another difficulty is that even though the displaced are permanently forced from their homes due to environmental reasons, the term refugee may not be entirely appropriate to describe their situation. Historically, the term applied to migrants who travelled across state borders for protection, and many examples of environmental displacement occur within state lines. However, with the climate crisis worsening, it is increasingly likely that there will be fewer options for the displaced in their home countries.

Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment exposed gaps in the global system to protect refugees and questioned if the definition of refugee created in 1951 is still sufficient to protect victims of a new 21st century crisis: climate change. The effects of climate change put the most vulnerable even more at risk since its consequences are predicted to “slow down economic growth, make poverty reduction more difficult, further erode food security, and prolong existing and create new poverty traps.”[10] While the climate crisis may not currently be an imminent danger to those in vulnerable countries, it may be too late by the time it is, and it is worth thinking about how international law will need to change to accommodate people looking for a new home.

[1] Kenneth R. Weiss & Birgit Krippner, Exile by Another Name, Foreign Policy 48–56, 50 (2015).

[2] Id. at 50.

[3] Alice Thomas, Protecting People Displaced by Weather-Related Disasters and Climate Change: Experience from the Field, 15 Vermont Journal of Environmental Law 803–832, 811 (2014).

[4] United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees, UNHCR, 3, https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html.

[5] Climate Change and the Disappearing Islands of Kiribati, Human Rights Watch (June 15, 2018 2:41PM), https://www.hrw.org/news/2018/06/15/interview-climate-change-and-disappearing-islands-kiribati.

[6] Rina Kuusipalo, Exiled by Emissions—Climate Change Related Displacement and Migration in International Law: Gaps in Global Governance and the Role of the UN Climate Convention, 18 Vermont Journal of Environmental Law 614–647, 618–619 (2017).

[7] Id. at 618.

[8] Id. at 619.

[9] Kuusipalo, supra note 6, at 619.

[10] Id. at 622.

At the Intersection of the Law and International Monetary Policy: Federal Reserve Swap Lines

Posted on by guulr in Spring 2022

Leo Rassieur is a Senior in the College double-majoring in Government and Economics with a minor in French and serves as a Managing Editor at GUULR.

​Throughout the 2008 crisis, the Fed came under much scrutiny for its extension of credit to large non-bank financial institutions like American International Group and Bear Stearns. Meanwhile, ordinary Americans still struggled to access credit, culminating in the 2010 Dodd-Frank regulations, which curtailed the Fed’s ability to lend domestically in this way. Interestingly, though the Fed’s provision of liquidity overseas was arguably a larger overstep of its legal authority than this domestic lending, its ability to do so has not been seriously scrutinized by Congress or by the courts. Therefore, it is relatively unsurprising that, in the midst of the COVID-19 crisis, the Fed has drastically expanded foreign bank access to USD liquidity. These Fed “swap lines” are not remarkable merely because they are new—in fact, they date back to 1962—but because they elicit little to no congressional or judicial scrutiny despite forming a central pillar of the global financial crisis response procedure.

By extending a swap line, the Federal Open Market Committee (FOMC) authorizes the contractual and temporary swap of a given quantity of dollars for the domestic currency of a foreign central bank. The initial purchase of currencies is the “spot leg” while the subsequent repurchase, terminating the swap, is the “forward leg.” To execute the spot leg, the Fed deposits dollars in the foreign central bank’s account with the Federal Reserve Bank of New York (one of twelve regional Federal Reserve Banks). This institution acts as the agent of the FOMC by implementing the transaction. Simultaneously, the foreign central bank deposits the foreign currency in the Fed’s account. The foreign central bank is then free to distribute the dollars to borrowers through its own selection process, in which the Fed has no oversight. Included in the liquidity swap contract is the agreement to repurchase the currencies on a given future date at the same nominal rate as the initial transaction, with the Fed receiving an additional preset fee for interest. The money created by the two central banks is thus removed from circulation. The Fed’s swap lines promote global economic stability pre-crisis by mitigating fears of foreign central bank failure and, by extension, the failure of the foreign financial institutions relying on those central banks for USD liquidity, and doubly serve to repair damage post-crisis by rescuing foreign central banks and other financial institutions.

​However, the term “swap line” does not appear in the original FRA or its amendments. Nonetheless, the notion that the Fed’s swap line authority is provided by Section 14 of the FRA is taken for granted at the highest levels of government, though less so in legal scholarship. As originally codified, Section 14 of the FRA of 1913 enumerates the powers of Federal Reserve Banks under the rules and regulations of the Board, including to “purchase and sell in the open market, at home or abroad, either from or to domestic or foreign banks, firms, corporations, or individuals, cable transfers and bankers’ acceptances and bills of exchange” and to “open and maintain banking accounts in foreign countries … whatsoever it may deem best for the purpose of purchasing, selling, and collecting bills of exchange.” This language is essentially the same today, with Section 14 only having been significantly amended by the Banking Act of 1933 (Glass-Steagall) and the Banking Act of 1935, which structured the Fed’s modern Board of Governors and the FOMC, and by the Monetary Control Act of 1980, with respect to the Fed’s oversight of non-member banks.

​Much of the Fed’s legal mandate to engage in foreign liquidity swap lines therefore relies on the contextualization of the Federal Reserve Act, particularly whether swap lines fall under the purpose of the Fed as defined by its so-called “dual mandate” to promote stable prices and maximum employment. The dual mandate is a normative framework for the Fed’s monetary policy responsibilities that stems from the Federal Reserve Reform Act of 1977. Amid the Great Inflation of the 1970s, Congress amended the Federal Reserve Act to task the Board and the FOMC with “maintain[ing] long-run growth of the monetary and credit aggregates commensurate with the economy’s long-run potential to increase production, so as to promote effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.” Broadly speaking, senior officials at the Fed have interpreted the dual mandate as tacitly including the goal of financial stability, which cannot help but have a global dimension, as the international financial system is largely denominated in dollars.

​Judicial perspectives and, relatedly, congressional views on the Fed’s swap lines have thus far largely and voluntarily constrained themselves to not intervene in what the Fed claims is sound monetary policy, particularly in relation to the international financial system. This peculiar difference stems from two related doctrines. The first, a legal one, derives from a line of court cases establishing the unique legal independence of the Fed and the Federal Reserve Banks that execute the Fed’s policies from judicial review. The second, a widely accepted principle in international political economy, is the notion of central bank independence (CBI). This policy rests on the idea that sound monetary policy cannot take place unless a nation’s central bank is shielded from the political process, including the short-term incentives that might guide politicians.

If the legal dilemma of the Fed’s actions is then left to Congress, it is likely no action will be taken soon. This is especially true given the generally accepted principle of CBI, meaning that the Fed should manage its highly technical and long-term responsibilities without oversight from politicians concerned with re-election or from judges who lack qualifications in monetary policy. Since the Chevron doctrine in 1984, the Supreme Court and lower courts have committed to deferring to a federal agency for interpreting the meaning of a statute that Congress has tasked it with enforcing or implementing, particularly when understanding the statute “depend[s] upon more than ordinary knowledge.” The courts’ treatment of the Fed is the quintessential application of the Chevron doctrine within the domain of monetary policy. In Board of Governors of FRS v. First Lincolnwood, which preceded Chevron by six years, the Supreme Court held that “the [Fed]’s authority is bolstered by reference to the principle that an agency’s long-standing construction of its statutory mandate is entitled to great respect, especially when Congress has refused to alter the administrative construction.” Hence, Congress’ general apathy toward swap lines and other Fed powers reinforces the courts’ deference to the Fed, which results in a positive feedback loop. Both Congress and the courts likely hold onto CBI as a principle for this heightened deference to the Fed, which as expressed by the Second Circuit, means that “mak[ing]the courts, rather than the Federal Reserve Board, the supervisors of the Federal Reserve System” is “a cure worse than the malady” of mistaken policy.

The Fed and its swap lines are thus a unique artifact of our dollar-denominated system of global capitalism. The breakdown of Bretton Woods left the Fed, particularly the FOMC, in the peculiar position of managing the response to global financial crises despite lacking an international mandate, let alone an explicit domestic one with substantive political, judicial, or popular oversight. In essence, the extra-legality (or, arguably, illegality) of swap lines perfectly encapsulates the fact that the Fed’s de facto role as global lender of last resort and monitor of financial stability is not written in law. The extraordinary independence of the Fed in executing this responsibility is perhaps a function of lawmakers and jurists’ valuing of CBI, thus explaining why they might subvert a legal framework that could easily be challenged.

Making the War Powers Resolution a Justiciable Issue

Posted on by guulr in Spring 2022, Uncategorized

Jack Little is a senior in the School of Foreign Service majoring in international politics and minoring in Spanish and philosophy and an Assistant Editor for GUULR

In 1973, Congress passed the War Powers Resolution (WPR), providing itself with new statutory powers to oversee the president’s use of the military.[1] The WPR requires the president to notify Congress within 48 hours of introducing armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”[2] Absent certain extenuating circumstances, the president must then withdraw military forces within 60 days unless Congress has approved of the president’s action.[3] At first glance, this congressional approval requirement is simple and allows for judicial intervention given presidential noncompliance. However, courts have generally held that such cases involve political questions outside the judiciary’s jurisdiction and are thus nonjusticiable.[4] For example, an opinion in Campbell v. Clinton decided this issue was nonjusticiable.[5] As a result, consequential disagreements about the use of armed forces go unresolved and Congress cannot enforce its power under the WPR to approve the use of armed forces. In this essay, I will argue that although the Campbell opinion was properly decided as nonjusticiable, a simple but necessary amendment to the WPR would quash these concerns and make violations of the WPR’s congressional approval requirement justiciable.

In Campbell, Congressman Tom Campbell and twenty-five other members of the House argued that President Clinton violated the WPR by using armed forces in the Federal Republic of Yugoslavia without congressional approval.[6] Although the D.C. Circuit rejected the plaintiffs’ lawsuit primarily on lack of standing, Judge Silberman also opined that the case was not justiciable, as “the statutory threshold standard is not precise enough and too obviously calls for a political judgment.”[7] The threshold standard Judge Silberman refers to is whether armed forces face hostilities or imminent hostilities, which would trigger the congressional approval requirement under the WPR.[8]

Judge Silberman’s reasoning here invokes the political question doctrine as established in Baker v. Carr.[9] The political question doctrine refers to the principle that the judicial branch does not have jurisdiction over issues of an inherently political nature because of “a court’s impotence to correct that violation.”[10] In his majority opinion, Justice Brennan described six ways in which an issue could violate the political question doctrine, one of which is “a lack of judicially discoverable and manageable standards for resolving it.”[11] Issues that would require courts to create inherently political standards fall outside their jurisdiction. He also analyzed judicial precedence and found that the “lack of judicially discoverable standards … may impel reference to the political departments’ determination of dates of hostilities’ beginning and ending.”[12] In other words, courts cannot determine when hostilities have begun or ended because this requires an inherently political determination reserved for the legislative and executive branches of government. More intuitively, how could courts possibly decide whether armed forces face hostilities or imminent hostilities given their limited military and national security expertise? Therefore, Judge Silberman was correct that the standard triggering the congressional approval requirement under the WPR is nonjusticiable.

This is not to say, however, that courts can never decide on when hostilities have occurred. Indeed, Justice Brennan included the caveat in Baker that “clearly definable criteria for decision may be available. In such case the political question barrier falls away.”[13] It stands to reason, then, that the WPR’s congressional approval requirement could be justiciable if the statutory threshold were more precise than the presence of hostilities or imminent hostilities

            I, therefore, propose a simple amendment to the WPR. As it currently stands, the president is required to submit a report to Congress within 48 hours of introducing the armed forces:

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.[14]

In this way, the WPR requires notification of Congress in situations other than which armed forces face hostilities or imminent hostilities. These other two situations—those in which armed forces enter foreign territory or substantially increase their presence abroad—are justiciable, as they meet the “clearly definable criteria” caveat to the political question doctrine under Baker.[15] Courts could determine whether these standards have been met without making political determinations outside their jurisdiction. Congressional approval, however, is only required after 60 days of armed forces facing hostilities or imminent hostilities, not for the latter two situations.[16] Therefore, Congress could amend the WPR to require congressional approval in any of the three situations in which the president is already required to notify Congress of military action. Doing so would quash the justiciability concerns presented in the Campbell and Baker cases.[17]

            More importantly, this proposal would benefit U.S. national security and democracy. First, allowing courts to intervene in issues related to the WPR’s congressional approval requirement would strengthen Congress’s ability to approve armed conflict. This would, in turn, improve the long-term national security strategy because “robust checks on presidential unilateralism help ensure that a chosen strategic path can withstand tough scrutiny.”[18] After all, the Constitution gives Congress the power to fund the military and declare war, distinct from the president’s power as commander in chief, implying a role for Congress in the country’s use of armed forces.[19] Moreover, the WPR’s purpose was to “insure that the collective judgment of both the Congress and the President will apply to the” use of armed forces.[20] This proposal would thus help fulfill this purpose and strengthen the constitutional system of checks and balances.

Second, this proposal would make congressional authorization under the WPR a legal issue, allowing the president to be held accountable outside solely political processes like elections or impeachment. These political processes cannot remedy situations in the short term, potentially leading to significant loss of life or harm to national security. Allowing Congress to hold the president accountable through the legal process, however, can more rapidly remedy violations of the WPR.[NR1] 

I have shown why violations of the WPR’s congressional approval requirement are currently nonjusticiable according to the political question doctrine. However, the political question doctrine also includes a caveat for defining hostilities, in which precise criteria would make this a justiciable issue. The U.S. should therefore amend the WPR to take advantage of this caveat and improve the country’s national security and democracy.

[1] War Powers Resolution, 50 U.S.C. §§ 1541-1550 (2018).

[2] Id. §1543(a)(1)

[3] Id. §1544(b)

[4] Louis Fisher, “The Law: Litigating the War Power with Campbell v. Clinton,” Presidential Studies Quarterly 30, no. 3 (09, 2000): 567, https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.

[5] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).

[6]Id..

[7] Id. at 24-25.

[8] War Powers Resolution, 50 U.S.C. § 1543(a)(1) (2018); War Powers Resolution, 50 U.S.C. § 1544(b) (2018).

[9] Baker v. Carr, 369 U.S. 186 (1962).

[10] Id. at 5.

[11] Id. at 12.

[12] Id. at 11.

[13] Id.

[14] War Powers Resolution, 50 U.S.C. § 1543(a)(1)-(a)(3) (2018).

[15] Baker v. Carr, 369 U.S. 186, 11 (1962).

[16] War Powers Resolution, 50 U.S.C. § 1544(b) (2018).

[17] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000); Baker v. Carr, 369 U.S. 186 (1962).

[18] Jack Landman Goldsmith and Matthew C. Waxman, “The Legal Legacy of Light-Footprint Warfare,” The Washington Quarterly 39 (2016): 18, https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf.

[19] U.S. Const. art. 1, § 8, cl. 11-12.

[20] War Powers Resolution, 50 U.S.C. § 1541(a) (2018).

Bibliography:

Fisher, Louis. “The Law: Litigating the War Power with Campbell v. Clinton.” Presidential

Studies Quarterly 30, no. 3 (09, 2000): 564-574. https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.

Goldsmith, Jack Landman and Matthew C. Waxman. “The Legal Legacy of Light-Footprint Warfare.” The Washington Quarterly 39 (2016): 21-7. https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf