Is there the potential for a compromise in Zubik v. Burwell?

Sarah Hannigan

SFS 2018

A recent development in Zubik v. Burwell, a case on accommodations for religious non-profits under the Affordable Care Act’s contraception mandate, has further complicated the case and is likely an effort by the Court to avoid a 4-4 tie in the ruling. Both sides of the case have been required to submit additional briefs, an order that has been described as an unusual attempt to reach a compromise before the ruling in late June.[1]

The case centers on religious exemptions to the Affordable Care Act’s birth control mandate, which requires all insurers to provide women with contraceptives on their health plans for no extra cost. Purely religious organizations such as churches or temples are exempt from the requirement.[2] After other religious groups protested that they were being required to violate their beliefs by providing female employees with contraceptives, the Obama administration also created an exemption for religious non-profits, such as hospitals, schools, charities, and other public service groups.[3] Currently, religious non-profits must submit a one-page form in writing to request an exemption from the mandate. The insurance companies then provide contraceptive coverage to the female employees directly, without involvement from the non-profit.[4]

However, religious groups argue that the fact that they must submit a form in order to request an exemption still violates their religious freedom under the 1993 Religious Freedom Restoration Act. The plaintiffs in Zubik v. Burwell, a group of religious non-profits, sued under the Religious Freedom Restoration Act, arguing that requesting an exemption constitutes a “substantial burden” on their right to religious freedom.[5] The non-profits contend that the act of submitting an exemption is in itself an affront to their religious beliefs, while the government claims that filing for an exemption does not constitute a “substantial burden.”[6]

After the death of Justice Antonin Scalia, it seemed likely that the case would end in a 4-4 tie. A tie would create a difficult legal problem, because several federal appeals courts’ upholding of the accommodation would remain, while the Eighth Circuit’s ruling in favor of the non-profits would also hold. As a result, the law would be different in different parts of the country – religious non-profits in Eighth Circuit states such as Arkansas, Iowa, Minnesota, and Nebraska would not have to request an exemption, while non-profits elsewhere would continue to have to do so.[7]

Due to the complications that would arise from a 4-4 tie, the justices seem to be searching for a compromise between the federal government and the religious groups. The recent and unusual Court order states that both sides must submit briefs “that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” The order essentially asks whether it would be possible for insurance providers to provide female employees of religious non-profits with contraceptives without the non-profit ever having to submit an exemption request or be involved in any way. Such a possibility would satisfy both the non-profits’ desire not to be involved whatsoever in providing contraceptives, as well as the government’s requirement that all insured women have access to contraceptives.[8]

The Court even went so far as to provide a suggested plan for how insurance companies could separately provide contraceptives without any involvement from the religious non-profit. According to the New York Times, the order “was exceptionally elaborate and seemed to envision new regulations from the Department of Health and Human Services.”[9]

As a result of the Court’s unusual attempt to reach a compromise of sorts, it is possible that the Court could come to a consensus on the issue. A majority vote would prevent the legal complications that would arise from a 4-4 tie and the upholding of inconsistent laws in different parts of the country.



[1] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate, The New York Times, (last visited Apr. 19, 2016); Mark Sherman, Supreme Court seems to seek compromise in birth control case, Associated Press, (last visited Apr. 19, 2016).

[2] Mark Sherman, Supreme Court seems to seek compromise in birth control case.

[3] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.

[4] Matt Ford, A Puzzling Order in a U.S. Supreme Court Case on Obamacare, The Atlantic, (last visited Apr. 19, 2016).

[5] A pious hijacking at the Supreme Court, The Economist, (last visited Apr. 19, 2016); Jesse Wegman, The Growing Mess of the Supreme Court’s Contraception Case, The New York Times, (Apr. 19, 2016).

[6] Matt Ford, A Puzzling Order in a U.S. Supreme Court Case on Obamacare.

[7] Id.; Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.

[8] Id.

[9] Adam Liptak, Supreme Court Hints at Way to Avert Tie on Birth Control Mandate.


The Inevitability of the Clean Power Plan and the Supreme Court: What We Can Learn from… Herman Cain?

Anthony Albanese
COL’ 16

The Clean Power Plan that was passed down by the EPA last August was perhaps the most ambitious federal environmental action taken since President Obama took office. Its main purpose was to pass reduce the emissions of power plants (primarily coal-based) by 40%, as well as to spur investment into renewable sources of energy like solar and wind.[1] As has been par for the course with any major EPA regulation in the last decade, it was immediately challenged in court. The suit–currently pending in the District Court of the District of Columbia–has all but four states taking sides, in addition to a multitude of industry groups and stakeholders.[2] In a rare turn of events, they’ve already been granted a stay on compliance from the Supreme Court in an ideologically divided 5-4 decision.[3] Considering this division and the inevitable use of the appeals process no matter who wins in district court, it seems to be a matter of fate that this case winds up back in the laps of the nation’s highest court.

I’m sure you’re wondering: “What does Herman Cain–of all people–have to do with this?!” Bear with me. It stems from one of the main arguments that is being used to plunder this executive action. The EPA was given its initial authority to regulate air pollution via the 1970 amendments to the Clean Air Act. Its authority to regulate stationary sources (like coal-powered plants) was broken down in three sections.[4] The first, 108(a), gives authority to regulate six specific “criteria” pollutants. Second, 112(b)(1)(a) allowed the EPA to regulate another category–”hazardous air pollutants”–which it later defined as a list of 200 substances. Finally, section 111(d) provided a catchall solution. [5] It allowed the EPA to regulate any pollutant not controlled in the previous two sections that I’ve mentioned. The regulations of the Clean Power Plan are justified by the EPA under 111(d). Greenhouse gases were not mentioned in the two previous sections, and actually weren’t regulated by the EPA until after the Supreme Court’s 2007 ruling in Massachusetts v. EPA.[6]

When the Clean Air Act was amended again in 1990, things became more complicated. The House changed the language of 111(d) in its version of the amendments, making the focus not on whether the pollutant was regulated under the other two provisions, but instead on whether the source was regulated. Meanwhile, the Senate version left the meaning essentially untouched from the original. The catch, however, is that both of these versions of the text made it into the final bill.[7] Obviously, the EPA is preaching the Senate’s version. Meanwhile, the detracting industry groups and states are holding up the House text as a way to kill the plan before it can be implemented, since power plants were already being regulated for other pollutants under the previous two sections.

The most shocking thing about this development is, perhaps, that this type of legislative typo is not uncommon or unheard of. Just a few years ago, the Supreme Court heard a case on the Affordable Care Act–King v. Burwell–that would have killed the federal healthcare exchange system and left the bill dysfunctional.[8] This was simply because of conflicting uses of the word “State” in the text of the bill. These kinds of cases have brought attention to a fact that many of us simply take for granted when it comes to legislating in the United States–it is really, really complicated. The Clean Air Act is almost three hundred pages long.[9] That’s dwarfed by the size of the Affordable Care Act, which is nearly a thousand pages of complex regulations, exceptions, and amendments.[10] Obviously, those in Congress don’t read every word of the text (if they do at all) before they vote. As a result, the versions of the bills that ultimately pass are often less than perfect. While minor typos are but a nuisance in everyday walks of life, in the context of federal legislation they can have huge legal implications that can bring down entire regulation schemes and leave federal courts divided.

When thinking on this subject, my mind found its way over to pizza-mogul-turned-presidential-candidate Herman Cain. In the 2012 election cycle, Cain made what many considered a costly gaffe when he claimed that he would veto any bill from Congress that exceeded three pages in length. He proudly proclaimed that Americans will be able to read and judge laws “over the dinner table.”[11] This specific proposal seems crazy considering the complexities of governing in 2016. By way of illustration, a simple 1975 act to enlarge the boundaries of the Grand Canyon checks in at two pages over Cain’s limit.[12] However, when it comes to the general principle, Cain had a point. It is clear from both the upcoming court battle over the Clean Power Plan and from the past dispute in King v. Burwell that the unreadable nature of major legislation is a problem.

How did we get here? Well, much of it has to do with the nature of congressional politics. As the Republican and Democratic parties have diverged from the center and have had less and less to agree on, fewer pieces of legislation have passed. In the 80th Congress (1947-1948), 906 bills were enacted. Meanwhile, the highly divided 112th Congress enacted only 283 bills. This has accompanied a marked increase in the size of the federal register from 14,736 in 1947 to a whopping 80,462 in 2013. The average length of bill considered has more than quadrupled.[13] All of this is a natural result of gridlock.[14] It is so hard to pass any one piece of legislation that Congress focuses all of its energy on massive, thousand-page long packages of reform when it finally has a chance to pass. Emergency deadlines are not uncommon, and these pieces of law are often passed at the final hour. In some of these cases, a unified version of the bill cannot even be physically manifested.[15] It is no wonder that conflicting provisions are able to make it into law when the process is a haphazard, rushed, and politically tense nightmare.

Some have called for an end to this focus on policy-making as opposed to lawmaking.[16] While legislators are rightly concerned with voting yes or no on grand policy proposals, they also need to be concerned with crafting good laws themselves.[17] The way that these policy proposals are manifested in text matters. The result of this sentiment has been a movement which takes Cain’s thinking to heart. The idea is to institute regulations to force lawmakers to read the laws, and as a result make them more bearable. However, others rightly point out that legislators have other concerns. Not all congressmen are lawyers, and it is these men and women–trained in previous law and in judicial interpretation–that need to be in charge of crafting the text to the best of their ability.[18] Whether this process is cut off by political considerations is the true problem. As a result, I see little hope for this issue to be solved on the congressional front when gridlock–for the foreseeable future–is here to stay.

If we accept the inevitability of imperfect law under our current political system, the answer then must lie in the branch which interprets those laws. The Supreme Court has given agencies the tools needed to counter ambiguous statutes through its ruling in Chevron v. Natural Resource Defence Fund.[19] Coined “Chevron deference,” this doctrine calls for the courts to defer to agency judgments of ambiguous statutes unless they are “arbitrary and capricious.” However, the Court (particularly the late Justice Scalia and Justice Thomas) have spent the past decade limiting this doctrine.[20] As a result, plaintiffs like those in the pending Clean Power Plan case have been given an invitation to swoop in and bypass any regulation put forth by the EPA that requires a hint of agency interpretation. By delaying and crippling these statutes, the public health of the American people threatened. In order to live in a system with imperfect legislation, we need to restore Chevron deference to its original state, and remove the credibility of these technicality-based lawsuits when the intent of the law is clear.

Further, I would call on Congress to recognize its own deficiencies and to pass legislation that enables for an expedited appeals process through federal courts when disputing agency rulings. By all accounts, the Clean Power Plan will need more another full year to be ruled upon in court, and this is unacceptable.[21] By streamlining appeals, not only is the American public saved a great deal of welfare, but the numerous stakeholders in affected industries (who often are the plaintiffs in these cases) are saved the huge economic cost of operating in a world of legal uncertainty.

Cain’s three page plan was clearly an attempt to create an appealing soundbite. However, there was a shocking amount of merit buried within. While the prospects of simpler legislation and a more conscientious, less gridlocked Congress are unrealistic, these clear judicial remedies are more practical and should be explored.



[1] Emily Holden & Rod Kuckro, Clean Power Plan: A Summary, E&E Publishing, LLC, (last visited Mar 21, 2016).

[2] Emily Holden & Rod Kuckro, E&E’s Power Plan Hub: Legal Challenges—Overview & Documents, E&E Publishing, LLC, (last visited Mar 1, 2016).

[3] Clean Power Plan Case Resources, Environmental Defense Fund, (last visited Mar 1, 2016).

[4] Kate Konschnik, EPA’s 111(d) Authority–Follow Homer and Avoid the Sirens, Berkeley & UCLA Law: LegalPlanet. 

[5] Id.

[6] Massachusetts v. EPA, 549 US 497, (2007).

[7] EPA’s 111(D) Authority, supra.

[8] King v. Burwell, 576 U.S., (2015).

[9] Air Pollution Prevention and Control, 42 U.S.C. §§ 7401-7701 (2008).

[10] Patient Protection and Affordable Care Act, 42 U.S.C. §§ 2711-10909 (2010).

[11] Tony Pierce, Herman Cain Promises He Wouldn’t Sign a Bill Over Three Pages Long Top of the Ticket, LA Times: Top of the Ticket, (last visited Mar 1, 2016).

[12] Grand Canyon National Park Enlargement Act, 16 U.S.C. §§ 228a-228j (1975).

[13] Norman J. Ornstein, Thomas E. Mann, Andrew Rugg, & Raffaela Wakeman, Legislative Productivity in Congress and Workload, Brookings Institute: Vital Statistics on Congress,–legislative-productivity-in-congress-and-workload_update.pdf?la=en (last visited Mar 3, 2016).

[14] Outrageous Bills, The Economist, (last visited Mar 3, 2016).

[15] Hanah Metchis Volokh, A Read-the-Bill Rule for Congress, 76 Missouri L. Rev. 135 (2011), at 136.

[16] Id. at 140-141.

[17] Id. at 144.

[18] Harry W. Jones, Bill-Drafting Services in Congress and the State Legislatures, 65 Harvard L. Rev. 441 (1952), at 441-442.

[19] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, (1984).

[20] Arthur G. Sapper, U.S. Supreme Court Substantially Limits Deference to Agency Statutory Interpretations, McDermott Will & Emery Publications, (last visited Mar 20, 2016).

[21] Emily Holden, Regulation: 2016 Holds Flurry of State Planning, Legal Drama for Clean Power Plan, E&E Publishing, (last visited Mar 3, 2016).


Splitting the Ninth Circuit Once and For All

Joseph Di Pietro

When examining a map of the geographic jurisdictions of the federal courts of appeals, one could hardly be blamed for momentarily believing that one was looking at a vague approximation of the United States’ political boundaries soon after the 1803 Louisiana Purchase. As one’s gaze moves west across the continental United States, one notices that the geographic jurisdictions of the various circuit courts grow to cover vast swaths of land. The U.S. Court of Appeals for the Ninth Circuit is of particular note, spanning nine states and two territories.

This spatial anomaly is largely the outgrowth of the historical territorial expansion of the United States. At the time of its creation in 1891, the Ninth Circuit encompassed a modest 4 percent of the country’s population. But, with the admission of new states to the union and the ensuing explosive population growth of the American West, today’s court now represents  20 percent of the national population.

Due to this unique predicament and  disproportionate national influence, a disposition Ninth Circuit Chief Judge Alex Kozinski refers to as “Western independence,” the court has settled comfortably as somewhat of a judicial renegade, the effects of which are well noted. [1] Not to be bested by any other circuit on a given metric, the Ninth leads the nation at 77 percent in the number of its appealed decisions being overturned by the Supreme Court. [2] It’s penchant for liberal decisions being out of step with the present Roberts Court and its lack of shyness toward provoking circuit splits aside, the bloated size of the Ninth Circuit is simply bad for judicial administration and for those who appear before the court.

One manifestation of this unwieldiness is the breakdown of the court’s cohesiveness. Judge Andrew Kleinfeld of the Ninth Circuit writes of the sheer volume of cases brought before the court as being too overwhelming for any one judge to keep abreast of each. In advocating a division of the court to the Commission on Structural Alternatives for the Federal Courts of Appeals, sometimes eponymously styled the White Commission after the retired Justice Byron White who headed it, he writes that the high rate of decisions overturned by the Supreme Court is due (at least in part) to the inability of judges to read their colleagues’ opinions that collectively number twelve thousand per annum (double the number of the next busiest court, the Eleventh Circuit [3]) and “correct the errors by effectively rehearing cases en banc.” [4]

With twenty-nine active judgeships, the court has resorted to randomized groups of eleven judges to compose en banc panels. [5] Such an arrangement compromises the fundamental purpose of an en banc panel: to arrive at a more certain opinion of the majority of the court. Judge Kleinfeld contends that this ad hoc solution undermines the ability to rightly refer to the Ninth Circuit as a singular “court.” The inability of the court to articulate an opinion of the majority renders it a heterogeneous organization of quasi-independent judicial panels; at best, the en banc panel can deliver only a plurality opinion, though, absent the input of the remainder of the court, even this remains uncertain.

The second issue in the judicial administration of such a large territory lies in its geographic diversity and, by extension, its diversity of judicial philosophy. From a jurisprudential perspective, the long reach of the Ninth Circuit presents no immediate problem. Yet, as a practical matter, the integrity of the San Francisco-based court’s decisions as applicable across its broad geographic jurisdiction is frequently, implicitly questioned. Senator Lisa Murkowski of Alaska asserts the need for a judiciary attuned to the “issues that are fundamentally unique to the Pacific Northwest.” [6] Similarly Judge Kleinfeld notes that much of federal law is locally intended and many state customs and practices are co-opted for use in the federal courts on matters that are not nationally prescribed. For this reason, judges need not be—and, conversely, often cannot be—sufficiently familiar with state laws and local conventions outside their ordinary scope of practice.

This alarming shortcoming of the court has been recognized in the numerous unsuccessful attempts to divorce the giant that is California from its neighbor states. Most recent is Arizona Governor Doug Ducey’s petition of Congress to remove his state from the Ninth Circuit, transferring it to the Tenth, a proposal endorsed by retired Justice Sandra Day O’Connor, or creating a new circuit altogether. [7] This expresses sentiments that echo from decades prior that favor structural reform of the Ninth Circuit, including those sentiments expressed at various points by Justices Scalia, Kennedy, and Stevens. [2]

All this is not to say that there are not valid reasons for preserving the behemoth circuit. Indeed, the White Commission that set out to restructure the court eventually recommended against splitting the court, citing a confluence of interests that could be maintained only by preserving the admittedly imperfect Ninth Circuit. [8] However, as the Commission’s findings now approach twenty years of age, it is time to re-examine the court’s status in light of its only increasing caseload. To maintain the integrity of Ninth Circuit Court of Appeals, the political interests of maintaining a decided ideological character or national clout must be subordinated to the interests of maintaining a proper judiciary, and the court must be fundamentally restructured.


[1] Schwartz, John. “‘Liberal’ Reputation Precedes Ninth Circuit Court.” New York Times, April 24, 2010.

[2] Ford, Matt. “Arizona v. Ninth Circuit Court of Appeals.” The Atlantic, February 4, 2016.

[3] Lat, David. “Will We See A Return Of The Ninth Circuit Curse?” Above the Law. January 29, 2016.

[4] “Splitting the Ninth Circuit.” Andrew J. Kleinfeld to Commission on Structural Alternatives for the Federal Courts of Appeals. May 22, 1998. University of North Texas Libraries.

[5] United States. Court of Appeals (9th Circuit). Advisory Committee on Rules of Practice and Internal Operating Procedures of the United States Court of Appeals for the Ninth Circuit. Federal Rules of Appellate Procedure.

[6] Fisher, Gregory S. “Breaking up Is Hard to Do.” Alaska Bar Association. Alaska Bar Rag, May 2003.

[7] Carter, Terry. “Arizona Governor Wants the State out of the 9th Circuit.” ABA Journal. January 28, 2016.

[8] Tobias, Carl. “The White Commission and the Federal Circuit.” Cornell Journal of Law and Public Policy, 2nd ser., 10, no. 1 (Fall 2000).

Why Have We Forgotten About the ERA?

Yun Joo Park
COL ’18

In June 2015, actress Meryl Streep sent 535 letters, one to each member of Congress, urging them to consider backing the Equal Rights Amendment. [1] But this isn’t the first time Congress has been asked to consider the ERA. The National Woman’s Party first introduced the ERA in 1923 [2]; it was then reintroduced every proceeding year until 1972 when it passed Congress but failed to generate the necessary number of state ratifications. [3]

Another female baby boomer currently making headlines  is  presidential candidate, Hillary Clinton. Clinton’s campaign has espoused a number of articles highlighting her supporters’ demographics. Clinton, it seems, is unable to generate excitement amongst younger female voters, however, for “women near her in age, Mrs. Clinton represents ‘the apex of that generation’s aspirations for itself.’”[4] Mary L. Shanley, a political science professor at Vassar College believes that “’they [millennial women] haven’t experienced the kind of barriers that their mothers and grandmothers did—the kind of exclusions from areas of accomplishment.”[5] Is it possible that women of recent generations have grown complacent, having forgotten how our mothers and grandmothers struggled to procure rights we now take for granted? Maybe. But what takes precedence is whether or not we believe we still need the ERA.

In 2016, it may seem odd that there are still those among us pushing for the ERA. After all, many gender discrimination laws are now encapsulated in legislation such as Title VII of the Civil Rights Act of 1964, which “prohibits employment discrimination based on race, color, religion, sex, and national origin”.[6] There’s also Title IX, the Equal Pay Act of 1963, and a good number of other federal laws that, together, cover the bases of gender discrimination in public schools, equal pay, credit, housing, medical leave, etc.[7] The ERA is composed of three short articles and is only 52 words long:

“Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This amendment shall take effect two years after the date of ratification”[8]

My concern with the ERA is not that I disagree with its premise; gender equality, in all aspects of society, should be encouraged and discrimination, prohibited. However, its brevity and generality leaves space for different subsets of women to fall between the cracks. For example, the ERA does not take time to define what constitutes being a woman. This may allow for continued or even increased discrimination against transgender individuals or those who do not identify along the gender binary. Furthermore, there exist problems split along racial lines. Take the case of wage gap—a commonly cited statistic is that women make 77 cents to a man’s dollar. However, the pay gap is a pay chasm for most women of color. The National Partnership for Women and Families found that African American women and Latinas in the United States are paid 64 cents and 55 cents for every dollar a man earns, respectively.[9] Debate over the existence of the wage gap aside, this statistic highlights the issue that women of color often have fewer opportunities and fewer advantages compared to their white counterparts.

Some think, however, that the ERA could potentially ameliorate such issues and these others along similar divisions. But the ERA cannot fix what the Equal Pay Act and Title VII of the Civil Rights Act of 1964 could not (at least, not in its current form). It should not be seen as the end-all-be-all.

An argument for the ERA is that its passage could have expanded federal jurisdiction to more aspects of American life. In 1976, the Supreme Court decided Craig v. Boren, establishing intermediate scrutiny as the basis for cases dealing with gender discrimination.[10] Many believe that had the ERA passed, gender discrimination would be considered a suspect class requiring strict scrutiny. What is key in this argument is that the acknowledgment of gender in a Constitutional amendment would have been a factor decisive enough to legitimize a suspect classification. The criteria for suspect classification is “A class of individuals that have been historically subject to discrimination.”[11] This suspect classification would allow the Court to analyze issues under strict scrutiny, thereby forcing issues of gender discrimination to go through a more severe screening process. If the Fifteenth Amendment served as the basis for race being named a suspect class, then it seems like a no-brainer that the ERA would elevate gender issues to fall under issues requiring strict scrutiny. What this would do for current or previous issues, is unclear. Perhaps, however, gender being qualified as a suspect class would allow for fewer instances of gender inequality.

The ERA is important not just because of the history of gender discrimination it represents, but also of what it is still capable of doing for women today. Though it is not by any means a way to resolve all issues amongst different divisions of women, it may have the power to change the constitutional status quo.


[1] Walters, Joanna. “Meryl Streep Urges Congress to Back Equal Rights Amendment.” The Guardian. June 23, 2015. Accessed February 14, 2016.

[2] “The Equal Rights Amendment.” U.S. History Online Textbook. Accessed February 14, 2016.

[3] Walters, Joanna. “Meryl Streep Urges Congress to Back Equal Rights Amendment.” The Guardian. June 23, 2015. Accessed February 14, 2016.

[4] Chozick, Amy, and Yamiche Alcindor. “Moms and Daughters Debate Gender Factor in Hillary Clinton’s Bid.” The New York Times. December 12, 2015. Accessed February 14, 2016.

[5] Id. Chozick

[6] “Gender Discrimination: Applicable Laws – FindLaw.” Findlaw. Accessed February 13, 2016.

[7] Id. “Gender Discrimination”

[8] “Home.” The Equal Rights Amendment. Accessed February 14, 2016.

[9] Kerby, Sophia. “How Pay Inequity Hurts Women of Color.” Center for American Progress. April 9, 2013. Accessed February 14, 2016.

[10] “Justice for Beer Drinkers – Craig v. Boren, 429 U.S. 190 (1976).” The Supreme Court Historical Society. Accessed February 14, 2016.

[11] “Suspect Classification.” Legal Information Institute. Accessed February 14, 2016.

Evenwel v. Abbott: Should “One Person One Vote” really be “One Voter One Vote”?

Gaia Mattiace

In American Constitutional law the history of the phrase “one person one vote” is a tumultuous one, but what does the provision truly entail? At first glance this issue seems simple. The 14th Amendment of the U.S. Constitution states that the number of representatives shall be apportioned on the basis of state population and that all individuals shall be given equal protection under the law. However numerous questions throughout history have emerged regarding what this provision implies, who has the power to oversee its accomplishment, and who really is the “one person” who will exercise the “one vote.”

This question lies not only for Congressional districts, through which individuals elect their Representatives to Congress, but also for legislative districts, through which voters elect their state legislators. Most recently the Supreme Court case of Evenwel v. Abbott has brought to light the question of whether the number of individuals per legislative voting district should be gauged from the total population or rather only just the voting population.  To grapple with this complex issue we must first take into account the history of “one person one vote,” as it applies to both Congressional and legislative districts, then overview the arguments of the plaintiff and defendant in Evenwel v. Abbott, and lastly consider the implications of a change to our current system.

Historically, the number of representatives in the House, how they should be distributed among states, and the way states form congressional districts and divide the population per district, have all been points of contention. The apportionment of a state’s representatives was originally dictated by Article 1, Section 2, Clause 3 of the U.S. Constitution, which states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” [1] The Constitution also states that there should be one representative for every 30,000 people and that each state must have at least one representative. After the Fourteenth Amendment, the Three-fifths Compromise was eliminated and the provision was readjusted to: “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.” [2] Every 10 years the 435 seats in the House of Representatives are reapportioned on the basis of population, with obviously more Representatives for states with larger populations. After apportionment each state divides its constituents into districts of equal size, one for each representative. [3]

As straightforward as the process may seem, it has been wrought with conflict from almost its inception. From the first census in 1790, to 1911, debate raged on regarding what mathematical method should be used to apportion seats as well as how many seats to add for new states joining the union. No reapportionment was done after the 1920 census, in direct violation of the Constitution, because of a war between rural and urban factions due to the fact that the number of seats was gradually lessening for rural areas. [4] Finally The Permanent Apportionment Act of 1929 fixed the number of representatives at 435 and set the manner in which seats would be reapportioned in cases of population changes. [5]

Apportionment however is not only a process for Congressional districts but also for state legislative districts, which elect the representatives and senators for each state’s respective congress. [6] In the case of state apportionment for legislative districts the relevant constitutional standard is the section of the 14th Amendment which states, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” [2] In 1962 Baker v. Carr brought forth the issue of whether the Supreme Court could decide issues of legislative apportionment in regards to the Tennessee state legislature. The ruling affirmed that the Supreme Court had the power to review issues of apportionment for state legislative districts and ruled that they were to be apportioned on the basis of total population. [7] The court added that “an individual’s right to vote for state legislators… is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” From which emerged the saying “one person one vote.”[8] In 1966 Burns v. Richardson, a case regarding a districting plan in Hawaii, brought forth the same issue of apportionment and legislative districts and, in this case, the Supreme Court ruled in favor of a provisional plan apportioning on the basis of voter population, not total population, because of the large number of military personnel stationed there temporarily. Since then the way populations were to be gauged was left up to the states. [8]

On December 8, 2015 the case of Evenwel v. Abbott was brought before the U.S. Supreme Court. The case was based on the state legislature’s reapportionment of districts for the purpose of electing state legislators. Under the Texas Constitution districts are reapportioned after every census. The redistricting plan passed by the Texas legislature was deemed by the district court to be in violation of the Voting Rights Act. An interim plan for the 2012 primaries was subsequently adopted and eventually became law. Sue Evenwel and Edward Pfenniger, registered Texas voters, are the plaintiffs in the case against defendant, Governor of Texas, Greg Abbott, and argue that the new plan violates the notion of “one person, one vote,” upheld by the 14th Amendment and the Supreme Court. They claim that because their districts are based on total population, rather than just the population of eligible voters, the districts vary wildly in total voter population. The issue before the Supreme Court then is whether the state legislative districts should retain their current method of apportionment, which is based on maintaining equal total populations within each district, or adopt a newer system, which seeks to maintain an equal number of voters in each district. [10]

During oral arguments, the Plaintiffs argued that basing districts on total population rather than voter population was causing vote dilution, so much so, that there was a fifty percent difference in the number of eligible voters from one district to another. The justices posed many questions and provided valid rebuttals. Justice Ginsburg brought forth the argument of tradition and the fact that all previous Supreme Court rulings had upheld the notion of apportionment based on total, not on voting, population, with the exception of Burns, which was an unusual case. Justice Sotomayor pointed to the issue of representational need and the fact that representatives are the voice of the citizens and even the non-citizens of their state, not just the voters.

The Plaintiffs countered with the argument that their suit was regarding individual right. Basing their arguments off Gray v. Sanders, they postulated that regardless of how large the non-voter population is in any given district they will all have access to their representative, however, if there are more eligible voters in one district than another, those who are of greater multitude have a vote that is effectively worth less than those who are fewer in number. Providing a particularly complex counterpoint, Justice Kagan and Ginsburg then argued that, according to the Plaintiff, women and minorities should not have been counted in considerations of representation from 1868 to 1920; an issue that the Plaintiff considered to be a separate problem. Breyer brought forth the point that looking at the constitution as a whole what the Framers devised was the kind of democracy where people would have a proportionate representation in Congress regardless of whether or not they chose to vote. And additional concern of the court was the practicality of changing a longstanding principle for calculating representation and whether apportionment would be based on the voting age population or on the registered voters. The Plaintiffs proposition leaned towards apportionment based on the voting age population. [11]

The defendants began their argument by citing the well-known message of the 14th Amendment, which states that Representatives are apportioned on the basis of population. Roberts to this said, that the clause is referred to as “one person, one vote,” which seems specifically to imply that the clause was made to protect voters. The defendants claimed that the Plaintiffs have no substantial legal claim since Texas followed the federal law and did not engage in any sort of invidious vote dilution. Justice Alito broke down the argument in favor of the defendants into two pieces: that total population is an accurate approximation of voters and therefore that one person one vote is appropriately met through population, and that total population serves the purpose of meeting representational equality. Alito also made the point that these two arguments come in conflict with each other and that voter representation often does not lead to representational equality and vice versa. Kennedy also contemplated why both population and voter proportions couldn’t be a consideration in apportionment, to which the defendants responded that if both the total population and voter population were required by law to be equal in districts then other redistricting factors like compactness, continuity and keeping communities together would have to be ignored. [11]

The underlying issue in Evenwel v. Abbott is whether equal protection affords individuals equal representation regardless of citizenship status, age, or race, or instead if equal protection is a protection of the voting public, which seeks to preserve the voting power of the individual voter. Take for example two districts, districts A and B, both with equal populations, however district A has a large pool of eligible voters and district B has a voting pool only half as large. Since each district elects one legislator to the state congress, a voter in district B has twice the decisional power, in making their choice for legislator than a voter from District A. However looking simply at the raw populations of the two districts since they are equal in number each individual has the same fraction of access to their legislator, regardless of which district they live in. Say that the Plaintiff won in this case, and that we based apportionment on effective voting population, rather than total population; some districts with a small population of voters and a large population of children, teens, or inmates, who are not eligible to vote, will have to divide up their legislator effectively amongst more people than a district whose voter population is very close to the raw population. Although the current system in place may dilute the voting individual’s vote, a new system may dilute the average individual’s access to and effective percentage of representation.

In Evenwel v. Abbott the legal question is a complex one, but there are also political ramifications if the decision were to be made in favor of the plaintiffs. The Cato Institute, a conservative organization, stated in its Amicus Curiae brief for the Plaintiff, “a relatively small constituency of eligible Hispanic voters … have their votes ‘over-weighted’ and ‘over-valuated,’ effectively diluting the votes of eligible voters” in districts with fewer Latinos.  Latino voters thus have “disproportionate power.” [12] The Leadership Conference on Civil and Human Rights and six other civil rights groups argued in their Amicus Curiae brief for the defendant, “In our democracy, elected officials do not simply represent the people who voted for them, or the people who are eligible to vote. They are expected to and do, represent the interests of all of the people who live in their respective districts. After all those who cannot, or do not vote are still impacted by government in a wide variety of ways.”[13] Should the Plaintiffs win it will produce older and in larger parts whiter districts, which would ostensibly benefit conservative candidates. [8]

Regardless of the partisan politics on this issue there seem to be a variety of practical and legal reasons why voting in favor of the Plaintiff seems most unlikely on the part of the Supreme Court. Considering the wording of the 14th Amendment, the Constitution favors districts based on total raw numbers not on voters at the federal level. Why would the case be any different for state districts? Had this been the intention we assume the Framers would have specified it. If states were to follow the example set by the federal government, where all Congressional districts are decided on the basis of total population, not voter population, then the Supreme Court should vote in favor of the defendants.

Additionally there is the practicality of the issue. Granting Texas the right to apportion districts on the basis of the voting public would create a slew of hard to legislate and execute implications. The redistricting issue in Texas is very complex and districting by voter rather than by total population may compromise the other requirements of redistricting. Lastly, and most importantly, as Justice Sotomayor pointed out there is not just a voting interest here, but a “representational interest” that is essential. As Justice Breyer put it, “what we actually want is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress.” [11]


[1] U.S. CONST. art. I § 2, cl. 3.

[2] U.S. CONST. amend. XIV


[4] Apportionment: A Little History, CENTER FOR ACADEMIC SUCCESS UNIVERSITY OF ALABAMA (February 7, 2016)

[5] The Permanent Apportionment Act of 1929, HISTORY, ART AND ARCHIVES OF THE UNITED STATES HOUSE OF REPRESENTATIVES (February 7, 2016)

[6] Geography: About State Legislative Districts, THE U.S. CENSUS BUEARU (February 7, 2016)

[7] Baker v. Carr, OYEZ (February 7, 2016)

[8] Garrett Epps, One Person, One Vote?, THE ATLANTIC, May 31, 2015

[9] Reynolds v. Sims, OYEZ (February 7, 2016)

[10] Evenwel v. Abbott, OYEZ (February 7, 2016)

[11] Evenwel v. Abbott, 14-940 U.S. (2015)

[12] Brief of The Cato Institute and Reason Foundation-Appellants, Evenwel v. Abbott, No. 14-940 (U.S. 2015).

[13] Brief of the Leadership Conference on Civil and Human Rights-Appellees, Evenwel v. Abbott, no. 14-940 (U.S. 2015)

Surrogacy: The Gray Area Amidst the Body Right Battle

Kelsey Yurek
COL ’19

In the age of deep controversy over body rights and abortion, states are grappling with a method to manage surrogacy laws in both traditional and gestational cases.

Traditional surrogacy transpires when the biological mother of the child also acts as the surrogate. Though the child is intended for another individual or a set of parents, the surrogate provides her own egg for the embryo. The sperm is that of either the intended father or a sperm donor. Conversely, in gestational surrogacy, the surrogate has no biological relation to the child that she is carrying and is implanted with an embryo consisting of either a donated egg and sperm or those of the intended parents.

Current laws and regulation on surrogacy are powers that reside with individual states. Twenty-three states, about 45 percent overall, possess no laws or legal objection on the subject of surrogacy. Seventeen states permit or are highly favorable in courts toward at least one form of surrogacy. Limitations exist on certain aspects of these exchanges on points such as compensation for acting as a surrogate. Eight states and the District of Columbia either out rightly forbid partaking in a surrogacy arrangement or declare such contracts void and unenforceable. Finally, the state of Ohio remains alone as being too divided on the topic to fall under one of the aforementioned categories.

The discrepancy in policies between and within states have spurred legal battles over not only custody of the child or children once born but the fate of the fetus or fetuses prior to delivery.

A 1988 New Jersey Supreme Court case, In re Baby M, 537 A.2d 1227, 109 N.J. 396, became a landmark case in fertility and reproductive technology law. In this case, the traditional surrogacy arrangement turned sour when the biological mother requested the child be returned to her after surrendering physical custody to the intended parents. The jury, “found that our present laws do not permit the surrogacy contract used in this case. Nowhere, however, do we find any legal prohibition against surrogacy when the surrogate mother volunteers, without any payment, to act as a surrogate and is given the right to change her mind and to assert her parental rights.” [3] Ultimately, the New Jersey judge declared the surrogacy contract invalid and remanded the case to family court which established visitation rights to the surrogate and custody to the intended parents.

Historically, controversial cases across the United States have featured surrogates reneging on their initial agreements and prompting disagreement over custody with the intended parents. In recent years, though, the issue has morphed from a battle over custody to a battle over body rights.

In vitro fertilization (IVF) and intrauterine insemination (IUI) are the fertility methods by which a couple may conceive should traditional conception prove difficult or impossible. Both methods commonly produce multiple births unintentionally due to the number of embryos implanted in the mother or surrogate. Women who undergo IVF or IUI are offered the opportunity for selective fetal reduction where one or more of the fetuses is reduced through an abortion procedure to a twin or singleton pregnancy.

Such a practice has produced debate not only in society, but between surrogates and the couples for which they are carrying. One such case gained media attention in January as a surrogate mother refused to abort one of the triplets she was carrying because the intended father only desired twins. [4] Ultimately, it has been upheld that a woman cannot be forced or coerced into an abortion regardless of prior agreement. Even in a contract that allows for selective reduction, the couple and the court have no ability to hold the surrogate to her word. Surrogates in the past have refused on grounds regarding their own religious or personal beliefs, disagreement with the medical advice of doctors, and being too far along in the pregnancy for the procedure.

The advance of medical technology has a positive correlation with the rise of surrogacy as a method of conception and with it the proliferation of legal issues. No federal policies currently govern assisted reproductive technology which leaves a lot to the unknown, including the best interests of the child. [5] Still, as surrogacy and reproduction has ultimately been left up to individual states to decided, it seems unlikely that these cases will come to a resolution in the near future.



[1]“What is Gestational vs. Traditional Surrogacy,” Creative Love: Egg Donor and Surrogate Agency, February 9, 2016,

[2]“U.S. Surrogacy Law By State,” The Surrogacy Experience: Confidence & Care from Decision to Delivery, February 9, 2016, 

[3]In re Baby M, New Jersey Supreme Court, 537 A.2d 1227, 109 N.J. 39, 

[4]Carl Campanile, “Surrogate carrying triplets sues to stop forced abortion,” New York Post, January 4, 2016, 

[5]Mark Hansen, “As Surrogacy Becomes More Popular, Legal Problems Proliferate,” American Bar Association, March 1, 2011, 

The Heavy Weight of Wage Garnishment Laws

Rachel Linton
SFS ’19

Wage garnishment occurs when a portion of an individual’s paycheck is seized to recover debt, and it has long been a legal measure in the United States. The percentage seized varies depending on the law and the case but can often amount to a sizable segment of the person’s income.

Wage garnishment laws vary from state to state, and consequently have varying effects on the population.  Some states, like North Carolina, have stronger laws to protect debtors.  Although creditors in North Carolina can legally garnish 75% of an individual’s disposable income, this does not include income that goes towards living expenses—which can often encompass a large portion of a paycheck, especially for lower-income individuals.  As a result, creditors typically don’t resort to wage garnishment, as it is unlikely to recoup many funds.[2]Additionally, North Carolina, along with Texas, South Carolina, and Pennsylvania, limit the types of debt that can be seized by wage garnishment.[1]

In other states, however, there are few punishments for debtors, and wage garnishment rates have risen dramatically in the past ten years.  In Utah, anyone who makes more than $180 a week can be taken to court and have their wages garnished.  These orders can last up to six months, and can be renewed if the creditor is still owed money.[3]Utah, like nineteen other states and Washington, DC, only protects the federal minimum wage.

Historically, wage garnishing has been used largely to recover only very specific kinds of debt: child support payments and unpaid taxes.  In recent years, however, it has been used as a means to force payments to a much broader spectrum of sources, from student loans to credit card debt.[1]

The result is that a much larger number of Americans are having their wages garnished.  Since 2006, wage garnishment of student loan debt has risen by 40%.[4]And with the US population of debtors growing and creditors becoming more willing to go to court over the issue, these rates will only continue to rise.  In 2014, it happened to one in ten working Americans between the ages of 35 and 44[1]—and has been linked to rising rates of bankruptcy declaration across the nation.  

Utah, for example, has the second-highest bankruptcy rate in the nation. Because it lacks protections for debtors, many individuals are having their wages garnished beyond a rate that they can afford.  In response, they declare bankruptcy.  And under Chapter 13 bankruptcy, debtors are required to pay back a portion of the debt in monthly installments.  If an individual can’t afford it, they may be forced to declare bankruptcy again, turning a basic amount of consumer debt into a deeper and deeper financial pit. [2]

This is the real danger—it stops an individual from being able to prioritize in times of financial strain.  Individuals who make only enough to cover everyday living expenses can be thrown into the red as a result of any crisis.  Medical bills, funeral expenses, or even a parking ticket can become crippling.  In these circumstances with limited funds, people prioritize food, utilities bills, and housing payments over things like credit card debt.  But when their wages are garnished, they lose control over their own finances and can be shoved into greater financial disaster.

Wage garnishment laws without sufficient consumer protections are devastating precisely for this reason.  Although creditors find the idea of recouping debts to be appealing, measures like wage garnishment ultimately fail to work when debtors simply lack the means to pay.

Ultimately, the way to combat rising bankruptcy levels is to increase debtor protections associated with wage garnishment.  When such measures are limited to collecting child support payments or unpaid taxes, they can be useful.  But once they are extended to more ordinary levels of consumer debt—and allowed to cut into an individual’s living expenses—they can turn a single debt into a cycle of bankruptcy.





Executive Actions: Presidential Abuse or Constitutionally Sound?


Brendan Saunders
COL ’18

The debate concerning the justifiable extent of executive power has been reignited in light of President Obama’s recent executive actions on gun regulation. In typical partisan fashion, political leaders responded to Obama’s January 5 announcement with opposing reactions. While Democratic presidential candidate Hillary Clinton voiced her support for the “crucial step forward” Obama took in the campaign against gun violence, Republican hopeful Carly Fiorina expressed her strong discontent against this “lawless, unconstitutional overreach”.[1] This oft-repeated claim, that Obama’s executive actions abuse constitutional powers, deserves a closer inspection specifically due to the informative history of constitutional limits on executive powers.

To put the recent measures against gun violence into historical context, it is first necessary to develop an understanding of these actions. President Obama’s opposition frames them as legal directives that unjustly give legislative powers to the executive. Speaker of the House Paul Ryan claimed that they go beyond the existing legal framework to target “the most law-abiding of citizens” and  “amount to a form of intimidation that undermines liberty”.[2]

Nevertheless, President Obama’s actions did not create new legislation but rather attempted to expand the operations of existing organizations and procedures. For example, the Bureau of Alcohol, Tobacco, Firearms, and Explosives was encouraged to “clarify” that anyone “‘engaged in the business’ of selling firearms is licensed and conducts background checks on their customers”. [3]
There is also a maximum $250,000 fine for failing to comply with these provisions. This executive clarification of the law certainly holds significant – and intentional – consequences regarding who will be required to hold licenses and enact background checks: it attempts to limit the number of people who claim to be private sellers, especially over the Internet, and thus avoid these two processes.[4] Still, none of the several provisions outlined by Obama explicitly creates a new legal requirement.

It is for this reason that Obama’s efforts are being touted as executive actions rather than as executive orders. In contrast to an executive action, which is a broader term for any presidential directive, an executive order carries legal weight and is recorded in the Federal Register.[5] The president may use an executive order to direct a federal agency that reports to the executive branch, and this directive is mandatory. While this power is not explicitly enumerated in the Constitution, executive orders have been deemed constitutional in principle based on the “vesting clause” that gives “executive power” to the president.[6] Clearly, an executive order is more forceful legally than a general executive action, and so analyzing an action for constitutionality by the qualifications of an executive order would logically impose even stricter restrictions than necessary to determine if the action is constitutional. This logic may be applied to the case of Obama’s recent actions on gun regulations to determine their constitutionality.

While often discussed in the media and political debates, the constitutionality of executive orders has only rarely been denied. An order may be considered legal “as long as the president has authority in that policy area, and those policies are a reasonable interpretation of court precedent”.[7] In fact, of the over thirteen thousand executive orders in American history[8], only two have been rejected by the courts.[9]

First, in 1952, President Truman attempted to end a labor strike involving the United Steel Workers of America via an executive order that would put the steel mills under federal control.[10] Since Truman needed steel for the ongoing effort in the Korean War, he considered the presidential capturing of this private property necessary. Nevertheless, the Supreme Court Case Youngstown Sheet and Tube Company v. Sawyer (1952) determined that this order was unconstitutional since he seized the property without Congressional approval.[11] More specifically, this case determined that an executive order must involve administering an existing law rather than seeking to create a new law.[12] The second instance of an executive order being revoked by the courts occurred in 1995 as a result of President Clinton’s Executive Order 12954, which would prevent the federal government from “contract[ing] with employers that permanently replaced striking employees”.[13] The D.C. Circuit court ruled in Chamber of Commerce v. Reich that this was illegal since it was in direct opposition to the National Labor Relations Act, which “guarantees the right to hire permanent replacements during strikes”.[14]

These two instances of judicial rejection of executive orders offer valuable historical insight into the conditions for the constitutionality of future executive initiatives. In the final analysis of whether Obama’s executive actions against gun violence are constitutional, it is instructive to look to these two cases as precedent. If the actions neither conflict with a current law nor create an entirely new law, then it is clear that they operate within the current legal framework and satisfy two strong conditions of constitutionality.

While there is no current effort by the Supreme Court to review these actions for constitutionality, the body did announce on January 19 that it would hear a case this year that will test the constitutionality of Obama’s 2014 executive orders on immigration.[15]
Their decision in this upcoming case will surely set further precedent for determining the legality of executive behaviors and may indirectly shape the parallel debate on gun regulations.


[1]Jennifer Hansler and Paola Chavez, “2016 Candidates React to Obama’s Gun Control Measures,” ABC News, January 5, 2016,

[2] Eric Bradner and Gregory Krieg, “Emotional Obama calls for ‘sense of urgency’ to fight gun violence,”, January 5, 2016,

[3]“FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer,” The White House, January 4, 2016,

[4]Robert Farley, “Sorting Out Obama’s Gun Proposal,”, January 8, 2016,

[5]Julie Percha, “The nuance you may have missed in Obama’s gun control plan,” PBS Newshour, January 5, 2016,



[8]Gerhard Peters and John T. Woolley, “Executive Orders,” The American Presidency Project, accessed January 19, 2016,

[9]Richard M. Salsman, “When it Comes to Abuse of Presidential Power, Obama is a Mere Piker,” Forbes, January 28, 2013,

[10]“Youngstown Sheet & Tube Co. v. Sawyer,” C-SPAN Landmark Cases, accessed January 19, 2016,–Tube-Co-v-Sawyer


[12]Richard M. Salsman, “When it Comes to Abuse of Presidential Power, Obama is a Mere Piker,” Forbes, January 28, 2013,

[13]Vivian S. Chu and Todd Garvey, “Executive Orders: Issuance, Modification, and Revocation,” Congressional Research Service, April 16, 2014,


[15]Josh Gerstein, “Supreme Court to rule on Obama immigration orders,”, January 19, 2016,