Category: Blog Spring 2020

By: LAUREN SCARFF

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          New Zealand has one of the highest rates of domestic violence in the developed world. Every four minutes, a police officer responds to a domestic violence call every four minutes.^[1] One in three women are victims of domestic violence at some time in their lives, although eighty percent of these domestic violence cases go unreported.^[2] Finally, almost half of all homicides committed are the result of domestic violence.^[3] According to a study done by economist Suzanne Snively, family violence costs New Zealand between $4.1 and $7 billion every year in pain, suffering, premature death, reduced productivity, costs of justice and social services, increased costs as a result of partners living in different homes, welfare costs, and health costs.^[4] Domestic violence plagues New Zealand, and to fight these alarming statistics, the Victims’ Protection Act was passed on July 26, 2018.

            The Victims’ Protection Act, which is the product of seven years of work by Green MP Jan Logie, was passed by a vote of 63 to 57 in July of 2018 and went into effect in April of 2019.^[5] Voting for the bill fell exactly along party lines as the Labour coalition supported it and the National and ACT parties voted against it.^[6] The law requires that employers give any employees who are victims of domestic violence ten days paid leave. The law mandates that victims don’t have to provide proof of their circumstances to get these ten days and that employers should also create an easy path for victims to receive flexible work conditions, which include allowing a change in work location and email address and removing any contact information from the business’s website.^[7]

            The main argument in support of this law is that it gives victims of domestic violence time to leave whatever dangerous situation they may be in and protect their families. One of the main reasons domestic violence victims stay in a dangerous relationship or environment is for fear that they will lose their jobs. The supporters of the law believe that with this standardized requirement to provide paid leave, victims will be able to more confidently remove themselves from the relationship knowing that they will still be able to keep their jobs and provide for their families.^[8] Furthermore, allowing victims to change their work location will allow the victim to stay away or hide from the dangerous situation as long as they may need. Changing the victim’s work email address and removing information on the victim from the business’s website further protects the victim from any unwanted or potentially dangerous contact with their abuser.^[9] All of these steps either required or suggested in the Victims’ Protection Act were made, the Labour coalition asserts, to empower domestic violence victims to feel comfortable and safe in removing themselves from any dangerous situations.^[10]

            Many opponents of the law argue that domestic violence and work, in most circumstances, are not in the least bit related, however, supporters of the law have shown that domestic violence does indeed have an impact on businesses. Jan Logie, the MP that wrote the original bill, claims that businesses lose more than 368 million dollars a year as a result of domestic violence. Domestic violence leads to a loss of productivity and a higher employee turnover rate, which leads to an increase in new employees who need to be trained.^[11] Businesses lose massive amounts of productivity as domestic violence is brought into the workplace via constant emailing or phone calls and the stalking or threatening a victim while they’re at work.^[12] A main tactic of domestic abusers is also to push their victims to quit their jobs. This way, the victims will be completely reliant on their abusers for income and will be much less likely to leave them.^[13]

            Beyond the concrete effects the law will have in aiding victims of domestic violence, supporters of the law believe that it will force businesses to realize that domestic violence is not just a social issue. Jan Logie claims that this law will force businesses to say that “the safety and well-being of our staff experiencing domestic violence is our business” (Logie). By not only enacting this law but by advertising the monetary losses businesses are experiencing because of domestic violence, Logie and the law’s supporters believe that the issue of domestic violence will become an economic issue as well.^[14] This will ultimately give the government, the public, and the private sector even more of a reason to work together to end the plague that is domestic violence in New Zealand. The law challenges the very nature that domestic violence is only an issue domestically, and advocates for the belief that simply requiring employers to give victims a ten-day paid leave will result in a widespread change in how domestic violence is viewed and how New Zealand can work to end it.^[15]

          The National Party and ACT Party voted unanimously against the bill in 2018 mainly because they believed it would hurt small and medium-sized businesses. Mark Mitchell, the Spokesperson for Justice for the National Party, was the voice for the National Party’s opposition to the law.^[16] He claimed that the burden of giving domestic violence victims ten days paid leave was simply too much for small and medium-sized businesses to bear.^[17] The National Party, however, was not totally against the essence of the law. It was suggested that the government should fund the law instead of leaving it to small businesses.^[18] It was also proposed that domestic violence leave should be included in vacation and sick leave. Finally, the National Party proposed an amendment that would kickstart a nationwide educational campaign to teach employers how they could and should play a part in ending domestic violence.^[19] The National Party’s main issue with the law really was not with the law itself, but with who was going to fund it.

          Furthermore, the National Party argued that the law would not actually result in ameliorating New Zealand’s domestic violence problem. A mandatory paid leave for victims of domestic violence would bring victims relief, the National Party understood, but there appeared to be no path towards the prevention of domestic violence offered in the law.^[20] The Party was not in favor of a law that seemingly wouldn’t directly avoid any further instance of domestic violence, especially considering the toll it would have on small and medium-sized businesses. Those against the law believed that the economic losses that these businesses would face outweighed the benefits of a law that only brought relief, and not preventative measures, to the issue of domestic violence.^[21]

          Not only did the National Party argue that the Victims’ Protection Act wouldn’t prevent domestic violence, but they also believed that it would actually encourage employers not to hire people they believe may be victims of domestic violence. Opponents of the law believed that mandatory paid leave for domestic violence victims would give employers incentive to not hire people who have been victims of domestic violence in the past, especially women, because of the economic burden it would put on their business.^[22] Although the law has clauses that protect victims from this kind of discrimination,^[23] employment discrimination is often incredibly hard to enforce, and those against the law believed that these preventative clauses would likely not be enough to discourage this discrimination. Again, the National Party believed that the risk of businesses promulgating this kind of employment discrimination outweighed the potential benefits of the law.^[24]

          At face value, the Victims’ Protection Act offers relief and protection for victims of domestic violence. Beyond this face value, however, the law brings domestic violence to an economic platform by emphasizing the massive effects domestic violence has outside the home and in businesses. Jan Logie and the Labour Coalition aimed to bring the conversation of domestic violence to a new audience in an effort to end the issue completely. The National Party, however, had concerns about how the law would be funded and the burden the law would put on small and medium-sized businesses. On top of this, there was great fear that the law would ultimately hurt victims of domestic violence by incentivizing businesses to discriminate against past victims or suspected victims of domestic violence. The economic burden combined with the potential to promote employment discrimination outweighed any potential benefit the law may have for the National Party, especially considering the law seemingly would not prevent domestic violence.

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^[1] Anna Bracewell-Worrall, New Zealand Passes Bill Giving 10 Days’ Leave to Domestic Violence Victims, Newshub (July 25, 2018), https://www.newshub.co.nz/home/politics/2018/07/new-zealand-passes-bill-giving-10-days-leave-to-domestic-violence-victims.html.

^[2]Anna Leask, Family Violence: 525,000 New Zealanders Harmed Every Year, NZ Herald (March 26, 2017), https://www.nzherald.co.nz/family-violence/news/article.cfm?c_id=178&objectid=11634543.

^[3] New Zealand Grants Domestic Violence Victims Paid Leave, BBC News (July 15, 2018), https://www.bbc.com/news/world-asia-pacific-44951237.

^[4] Simon Collins, Family Violence Costs NZ up to $7 Billion a Year,  NZ Herald (August 24, 2017), https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11356152.

^[5] Eleanor Ainge Roy, “A Huge Win”: New Zealand Brings in Paid Domestic Violence Leave, The Guardian (July 26, 2018), https://www.theguardian.com/world/2018/jul/26/new-zealand-paid-domestic-violence-leave-jan-logie.

^[6] Laura Walters, Domestic Violence Victims Able to Take a New Form of Leave, Stuff (July 15, 2018), https://www.stuff.co.nz/national/politics/105735404/domestic-violence-victims-able-to-take-a-new-form-of-leave.

^[7] Supra. See note 5

^[8] Merrit Kennedy, New Zealand Will Provide Paid Leave to Domestic Violence Survivors, NPR (July 26,2018), https://www.npr.org/2018/07/26/632601325/new-zealand-will-provide-paid-leave-to-domestic-violence-survivors.

^[9]Supra. See note 5

^[10]Supra. See note 8

^[11] Susan Edmunds, Domestic Violence Costs Employers Millions of Dollars – Green MP Jan Logie, Stuff (February 28, 2017), https://www.stuff.co.nz/business/89866077/domestic-violence-costs-employers-millions.

^[12] Supra. See note 5

^[13] Supra. See note 5

^[14] Supra. See note 11

^[15] Supra. See note 5

^[16] Supra. See note 6

^[17] Supra. See note 6

^[18] Supra. See note 3

^[19] Supra. See note 6

^[20] Supra. See note 3

^[21] Supra. See note 1

^[22] Supra. See note 1

^[23] Charlotte Graham-Mclay, New Zealand Grants Domestic Violence Victims Paid Leave, The New York Times (July 26, 2018), https://www.nytimes.com/2018/07/26/world/asia/new-zealand-domestic-violence-leave.html.

^[24] Supra. See note 3

By: SADIE MORRIS

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            On January 14th, 2020, several families were forcibly removed by Oakland police from a house they were occupying to demonstrate against the ever-growing housing crisis in California. The demonstration began on November 18th, 2019 when two mothers experiencing homelessness entered a vacant home owned by home-flipping company Wedgewood Properties with their children.^[1] The situation soon morphed into a lawsuit in which Wedgewood Properties sued for the eviction of the families, to which the mothers responded with a claim of right of possession, arguing  that they have a human right to housing. According to California State Law, “The court shall determine the claim [of right of possession] to be invalid if the court determines that the claimant is an invitee, licensee, guest, or trespasser.”^[2] In an unprecedented move, Alameda County Superior Court Judge Patrick McKinney decided to consider the mothers’ argument rather than dismissing the case as a clear example of a claim being invalid due to trespassing.^[3] This allowed the mothers and their families to stay in the home for the next few months while the case was decided. At the same, they organized to spread their message, calling themselves Moms for Housing. Eventually, Judge McKinney found that while the mothers’ argument was moving, he rejected the argument that the women had a right to stay in the vacant home given their lack of alternatives.^[4] This case is part of a larger conversation about the right to housing which has been going on since the Industrial Revolution and was reinvigorated by the economic depression of 2008. It is worth examining the body of laws surrounding the right to housing in order to better understand the position of Moms for Housing and where the conversation should go from here.

          The importance of housing has been enshrined in U.S. and English law for centuries. Most of these legal foundations lie in protections for the rights of property owners, which may seem to be in opposition to the rights of those without property at first glance. However, on closer inspection, these foundations actually speak to the legal recognition that a house is more than just a place of shelter. Housing affects physical health, mental health, physical fitness, nutrition, access to services, cultural and community identity, exposure to crime and other factors of well-being.^[5] It is little surprise, then, that the first tenement acts and zoning laws arose in response to the squalor conditions of Industrial Revolution-age homes in the 19th and early 20th centuries. Citizens petitioned their governments–at the local, state, and federal level– to ensure that they and their families had access to affordable and adequate housing. Commissions on housing were started at all levels of government. Their work would contribute to a new body of housing legislation that arose mid-century, including the National Industrial Recovery Act of 1933, the National Housing Act of 1934 and The Housing Act of 1945.^[6]

            The right to housing also became cemented in international law during the mid-twentieth century. Article 25 of the Universal Declaration of Human Rights of 1948 provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”^[7] The Article goes on to say that “Motherhood and childhood are entitled to special care and assistance,” recognizing the specific role of adequate housing in proper childhood development.^[8] The specific right of children to “a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” is further emphasized in Article 27 of The Convention on the Rights of the Child.^[9] The right to housing was also reaffirmed in the 1976 International Covenant on Economic, Social, and Cultural Rights.^[10]  In general these laws do not “envision free single family homes for everyone; it is a more nuanced responsibility for governments to ensure all residents have access to adequate, affordable housing.”^[11]

            Given that the right to housing is explicitly present in international law and U.S. law itself recognizes the multiplicity of roles that housing plays, the question must be raised whether there was some legitimacy to the Moms for Housing claim. The doctrine of “Unclean Hands” holds that courts cannot grant an injunction to a “litigant guilty of wrongdoing directly connected with the lawsuit.”^[12] As applied to situations in which those experiencing homelessness are suing to keep from being removed from a property, the indicated party must be able to show that the government suing them has breached some duty they owe to the residents of the encampment.^[13] While potentially a strong argument in cases on the side of the right to housing, this doctrine would not apply in the Moms for Housing claim because it is not the government suing for their removal but rather a private company, Wedgewood. Some litigants have argued under the Eighth Amendment that removal from property is a form of cruel or unusual punishment if the government is essentially criminalizing a necessary activity for survival in the absence of alternatives–the absence of alternatives being a key contingency.^[14]

            Whether or not there are alternatives to illegally trespassing and squatting on vacant property is a harder question to answer in the face of growing economic problems in the U.S. and specifically in California. In the aftermath of the financial and housing crisis of 2008, the poverty rate in California has risen to 18.2% and “homelessness routinely tops the polls of residents’ biggest concerns.”^[15] A visceral statistic in evidence of this is that “the only demographic category in the Bay Area whose incomes mostly rise above the salary needed for a two-bedroom abode in the Moms’ West Oakland neighborhood is white men, who earn a little more than $100,000 at the median. Black women earn less than half of that—$49,369.”^[16] The Special Rapporteur on Adequate Housing to the United Nations reports that the 2008 financial crisis caused a dramatic increase in housing commercialization, changing housing primarily into a form of investment rather than a way to actually create homes for people.^[17] Not only has this commercialization stimulated the growth of huge housing conglomerates like Wedgewood, which spur foreclosures and evictions, but “the vast amount of wealth [created by these conglomerates and via the investment market] has left governments accountable to investors rather than their international human rights obligations.”^[18]  Evictions that go through private companies can also not be examined under the Unclean Hands doctrine, which results in governments being exempted from their duties to uphold the right to housing.

            The Moms for Housing legal case itself was unlikely to stand up to current U.S. legal standards, but their case was successful in furthering a dialogue on what right to housing is owed to citizens. The fact that the UN Sustainable Development Goals and Habitat III New Urban Agenda back in 2015 includes a commitment to “promote national, sub-national, and local housing policies that support the progressive realization of the right to adequate housing for all as a component of the right to an adequate standard of living” indicates how the Moms for Housing case is part of a larger, in-progress conversation that has begun to shift and must continue to shift towards thinking about a just housing system as part of the process of developing a more sustainable world.^[19] Ever the land of experimentation, California and the U.S. have an important role to play in demonstrating how the right to housing can be incorporated in longer term planning.

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^[1] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

^[2] Code of Civil Procedure §1174.3, CCP (d) (2020)

^[3] Marisa Kendall, Judge Considers if Moms 4 Housing has Right to Occupy Empty House, MERCURYNEWS, 30 December 2019, https://www.mercurynews.com/2019/12/30/judge-considers-moms-4-housings-right-to-occupy-empty-home/

^[4] Marisa Kendall, Moms 4 Housing Loses Court Case Still Refuses to Move Out, MERCURYNEWS, 11 January 2020, https://www.mercurynews.com/2020/01/10/moms-4-housing-loses-court-case-must-vacate-west-oakland-home/

^[5] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

^[6] Emily Bergeron, Adequate Housing is a Human Right, AMERICANBAR, 01 October 2019, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol–44–no-2–housing/adequate-housing-is-a-human-right/

^[7] Universal Declaration of Human Rights, UNITED NATIONS, 1948 https://www.un.org/en/universal-declaration-human-rights/.

^[8] id.

^[9] Supra. See note 7 (93)

^[10] International Covenant on Economic, Social and Cultural Rights, UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER, 1966, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx.

^[11] Tent City, USA, NATIONAL LAW CENTER ON HOMELESSNESS AND POVERTY, 2017 (83)

^[12] Supra. See note 7 (86)

^[13] Id.

^[14] Supra. See note 7 (84)

^[15] Conor Dougherty, California, Mired in a Housing Crisis, Rejects and Effort to Ease It, NEW YORK TIMES, 30 January 2020, https://www.nytimes.com/2020/01/30/business/economy/sb50-california-housing.html?te=1&nl=california-today&emc=edit_ca_20200131&campaign_id=49&instance_id=15634&segment_id=20863&user_id=bf0474a0ccaccf28d2f666623c073ebb&regi_id=7776464820200131

^[16] Brentin Mock and Sarah Holder, A Group of Mother, a Vacant Home, and a Win for Fair Housing, CITYLAB, 28 January 2020, https://www.citylab.com/equity/2020/01/moms-4-housing-eviction-oakland-homeless-crisis-real-estate/605263/.

^[17] Office of the High Commissioner, Special Rapporteur on Adequate Housing as component of the right to an adequate standard of living, UNITED NATIONS HUMAN RIGHTS COUNCIL, 2019, https://www.ohchr.org/en/issues/housing/pages/housingindex.aspx

^[18] Id.

^[19] Supra. See note 7 (95)

By MAEVE SILK

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          Gerrymandering is the process of drawing electoral district lines in order to gain unfair political advantage. Beginning in the post-Civil War era, illegal “packing” and “cracking” techniques were used in the South to limit the voting power of the black population.[1] The most recent cycle of redistricting was in 2010. According to a report published by the Center for American Progress last May, on average fifty-nine members of the U.S. House of Representatives would not have been elected based on natural state party identification in 2012, 2014, and 2016 election cycles; they only won because of gerrymandering. Those fifty-nine legislatures are equal to the voting representation of approximately forty-two million Americans.[2]

          According to Section 2 of the Voting Rights Act of 1965, which was amended in 1982, “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.”[3]

          The Voting Rights Act, which was renewed on July 20, 2006, has been considered by many to be a direct opposition to gerrymandering, which often relies on the separation of different racial groups while redistricting in order to achieve political benefit. For example, after the 1990 census and subsequent redistricting, several district delineations were denied by the Supreme Court for being racially discriminatory. In ​Thornburg v. Gingles (​1986), the court unanimously decided that redistricting plans in North Carolina that strategically gave white citizens the ability to overpower the votes of citizens of color were not permissible.[4] Following this decision, in ​Bush v. Vera ​(1996), redistricting plans in Texas to create three new districts, limiting African-American residents’ ability to participate in voting and successfully elect their chosen candidates, were ruled as a violation of the Voting Rights Act.[5] In similar race-based gerrymandering cases, such as ​Shaw v. Reno ​(1993) and ​Miller v. Johnson (​1995), the Supreme Court has reaffirmed that any redistricting plans that can be proven to be racially discriminatory violate the Voting Rights Act.

          Gerrymandering is sometimes politically motivated, rather than solely racially motivated. Baker v. Carr​ (1962) alleged that Tennessee did not follow existing legislation in its appointment practices for its General Assembly. By ruling on this case, the Supreme Court demonstrated that it was in its jurisdiction to rule on cases regarding legislative apportionment.[6] A similar conclusion was found in ​Davis v. Bandemer (1986), a case which alleged that Democrats in Indiana were being unfairly disadvantaged through a proposed redistricting plan. Although the Supreme Court did not ultimately find that a violation of voting rights had occurred through redistricting in the case, it did conclude that claims of gerrymandering were justiciable through the Equal Protection Clause of the 14th Amendment.[7]

          In some cases, gerrymandering can be thought to violate the 14^th Amendment by interfering with a certain group of individuals’ ability to vote, but it can be difficult to prove. In spite of these considerations, the Supreme Court has also found many gerrymandering cases to be outside of its jurisdiction for similar reasons. For instance, in ​Vieth v. Jubelirer ​(2004), the court considered whether Republican gerrymandering in Pennsylvania violated the “one-person, one-vote” concept of Article 1, Section 2 of the Constitution. While the District Court found that the redistricting plans did breach Article 1, Section 2, the Supreme Court decided that the case was non-justiciable.[8] While the Supreme Court recently heard another gerrymandering case, Rucho v. Common Cause​ (2019), ultimately, there has not been a clear decision on whether or not the issue of gerrymandering as a whole falls under the jurisdiction of the Supreme Court; it is largely dependent on a case-by-case basis.

          At the state level of legislature, there have been many different responses to gerrymandering. Every state has its own unique rules for district formation. Many states, but not all, require that the district be compact and contiguous, and that district lines not cross political subdivisions or break apart neighborhoods.[9] A few states, such as Michigan and Colorado, have added measures to their constitutions to help limit partisan gerrymandering, but most states have done little to regulate the practice.[10] In response to this issue, House Democrats proposed a new bill in 2019, the For the People Act (H.R.1), which included regulations requiring states to inhibit gerrymandering through methods like using an independent body for redistricting. H.R.1 passed in the House, but not in the Senate.[11]

          The Center for American Progress recommends a redrawing of lines by an unbiased, independent entity in order to create “voter-determined districts” based on using districts to fairly represent the division of state voters regarding major parties.[12] [xvi] Although this would be difficult to perfectly match the districts and voting preferences of the state, modern computer mapping systems make this a much more realistic option than in the past. Ultimately, the core of our democracy relies on people’s ability to vote for representation. The process of gerrymandering threatens that tenet by undermining the value of certain votes. With the 2020 election cycle approaching and the next redistricting scheduled to take place after the 2020 census, it is important for Americans to consider what gerrymandering can mean for their votes.

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[1] E. Engstrom, ​Gerrymandering and the Evolution of American Politics​, University of Michigan Press (2013),  https://www.jstor.org/stable/j.ctt1gk086k.4?seq=1#metadata_info_tab_contents.

[2] Alex Tausanovitch​., The Impact of Partisan Gerrymandering​, Center For American Progress (October 1, 2019), https://www.americanprogress.org/issues/democracy/news/2019/10/01/475166/impact-partisan-g errymandering/.

[3] Voting Rights Act of 1965, 52 U.S.C ​§ 2 (2015).

[4] ​Thornburg v. Gingles,​ 478 U.S. 30 (1986).

[5] ​Bush v. Vera, 517 U.S. 952 (1996).

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

[7] ​Davis v. Bandemer​, 478 U.S. 109 (1986).

[8] Vieth v. Jubelirer, 541 U.S. 267 (2004).

[9] N.A, Redistricting Criteria, ​National Conference of State Legislatures, (April 23, 2019),  https://www.ncsl.org/research/redistricting/redistricting-criteria.aspx

[10] ​Jake Neher​, ​Cheyna Roth​, ​Here’s Where Michigan’s Redistricting Effort Stands After SCOTUS Gerrymandering Ruling,​ WDET, (July 1, 2019), https://wdet.org/posts/2019/07/01/88365-heres-where-michigans-redistricting-effort-stands-after- scotus-gerrymandering-ruling/

[11]Michael Li, Five Ways H.R. 1 Would Transform Redistricting, Brennan Center, (June 19, 2019), https://www.brennancenter.org/our-work/analysis-opinion/five-ways-hr-1-would-transform-redistricting.

[12] Alex Tausanovitch​, ​supra n​ote 2.

By LINDSEY CLARK

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          Over the past few years, the #MeToo movement on social media has shed a harsh light on the realities of sexual assault. Across many industries, women are speaking out against their attackers. These brave leaders inspire others who have experienced sexual assault to voice their traumatic experiences. Today, victims, the majority of whom are women, are more empowered than ever to disclose sexual assaults. However, despite these gains, society has not changed its fundamental approach to criminalizing sexual assault. Ideal punitive systems theoretically should uphold deterrence as the ultimate goal of punishment,[1] predicated on the understanding that prevention originates from the certainty of the punishment, not the severity.[2] The minuscule number of rapists who are actually punished demonstrates how our system fails to meet this ultimate standard.[3] Acknowledging this failure requires a fundamental review of how our theoretical treatment of sexual violence and our actual prosecution of the crime can precipitate a more just system.[4] Investigating these new approaches implies endeavoring beyond traditional legal boundaries and conventional understanding.

          A quick survey of the statistics surrounding sexual assault cases reveals a clear, deep, destructive failure within the system. An estimated 77% of sexual assaults go unreported.[5] If the victim does report the crime, the criminal justice process mistreats and isolates them. Instead of criticizing the perpetrator, trials engage in a brutal form of victim blaming.[6]  Sexual assault crimes draw low prosecution and conviction rates.[7]  Digging deeper, these startling statistics emerge due to a widespread societal misunderstanding of sexual assault. For example, a study of high school students in Los Angeles finds that 56% of girls and 76% of boys believe that “forced sex was acceptable under at least some circumstances.”[8] Another study finds that a majority of men believe that “any woman could prevent rape if she really wanted to.”[9]

           In response to this devastating societal ignorance and the resulting failures of the legal system, much academic literature contends that the traditional burden of proof on the prosecution could be too high. The prosecution must prove “beyond a reasonable doubt”[10] that the victim did not consent and that the perpetrator knew the victim did not consent. However, because of the public’s “weak moral prohibition”[11] of sexual assault outside of violent rape, perhaps the standard of “beyond reasonable doubt” becomes inhibitive.[12] We can observe how culture behaves in a punitive system with a lower burden of proof. The Title IX system does not involve criminal proceedings, so it requires a lower standard of proof.[13] Instead of “beyond a reasonable doubt,” Title IX cases demand a “preponderance of the evidence standard.”[14] This system bases convictions on a convincing probability, rather than virtual certainty. These microcosmic college environments can be extrapolated to examine how punishment works under different circumstances. Despite a lower standard of proof, Title IX remains largely inadequate at preventing victim blaming.[15] This indicates that removing the means of victim blaming in punishment systems does not terminate the motivation of victim blaming. Deterrence still requires shifting the blame from the victim to the perpetrator. This will only happen when punishments employ an appropriate “moral condemnation.”[16] Productive punishments properly align “the suffering [the] sanction imposes and the meaning it has for society.”[17] An ingrained societal shame about sex in general further connects shame to sexual assault punishments.[18] However, both the Title IX and criminal justice systems employ an ineffective form of shame to punish these crimes. We incessantly deny the realities of sexual assault trauma. Without the proper approach to shame, we cannot fully deter sexual violence.

          The manner in which we punish sexual assault fundamentally fails because “the message of condemnation is [not] very clear.”[19] To effectively punish and deter sexual assault, the system must change to successfully manipulate shame. Given the majority of high school and college students who excuse at least some form of sexual assault,[20] social conceptions of sex and masculinity are prioritized over the law. Instead of blaming the victim, we must judge the perpetrator. Shame, used effectively, becomes a social deterrent and can ideally rectify this destructive social failure.[21] With this ideology, reformers suggest public sanctions “designed not only to punish but to teach and steer social influence.”[22] Deploying shame in a new way wholly changes the nature of punishment; as a result, many of these solutions appear too radical at first glance. For example, Katharine K. Baker, a professor of law in Chicago, directs shame in Title IX cases to isolate the perpetrator from the tight-knit college community while they still live in it. She offers a punishment that requires perpetrators to wear an armband indicating their crime and the social organizations to which they belong.[23] Though drastic, this type of punishment certainly harnesses social influence to prevent sexual assault. The perpetrator shames himself and his social group, publicly. The law here overpowers the social pressures that incentivize sexual assault. Shame, if properly distributed, “instill[s] aversions to the kinds of behavior that the law prohibits.”[24] This approach brings justice directly to the victim to properly deter the action. Re-evaluating the burden of proof in cases of sexual assault cases is necessary, but not sufficient to promoting the ultimate goal of the criminal justice system: deterrence. How we behave and what behavior we excuse matters. We are a part of society; we are the judges and the jury; we are the victims and the perpetrators. Consequently, we are responsible for preventing sexual assault.

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[1] Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments 16 (2011).

[2] Ibid.

[3] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 596 (1996).

[4] T. McDonald & L. Kline, Perceptions of Appropriate Punishment for Committing Date Rape: Male College Students Recommend Lenient Punishments, 38 College Student Journal (2004).

[5] Perpetrators of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/perpetrators-sexual-violence.

[6] N. Westera, M. Kebbell, & B. Milne, Want a Better Criminal Justice Response to Rape? Improve Police Interviews With Complainants and Suspects, 22 Violence Against Women, 1748, 1748 (2016).

[7] Ibid.

[8] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.

[9] Supra note 4.

[10] “Chapter 40. Sex Offender Registration.”

[11] Supra note 8 at 694.

[12] A recent rape case in a court in Texas offers support to this end. On December 10, 2018, the prosecution offered the defendant a $400 plea deal instead of years in prison. The prosecutor told the victim, “Our jurors aren’t ready to blame rapists when there isn’t concrete proof of more than one victim.” Our courts of law render one person’s victimhood insufficient to bring them justice within the system. CBS Evening News, Twitter Post, December 10, 2018, 3:51 PM.

[13] It should be noted that Title IX regulations were recently amended. However, these changes do not affect the cited information.

[14] U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide (2015).

[15] This point references the recent controversial changes to the Title IX standards as well as the subsequent outcry from Georgetown students. A new organization called Georgetown Survivors is working to draw attention to the shortcomings of Georgetown’s Title IX program and the ways in which the advisory board engages in victim blaming. (see https://thehoya.com/survivor-viewpoints/)

[16] Dan M. Kahan, What Do Alternative Sanctions Mean?, 114 Faculty Scholarship Series, 591, 593 (1996).

[17] Ibid.

[18] Susan Brison, Aftermath: Violence and the Remaking of a Self 12 (2002).

[19] Supra note 16.

[20] Katharine K. Baker, Sex, Rape, And Shame 79 B.U.L Rev. 663, 679, (1999). Based on a study by Jacquelyn W. White and John A. Humphrey.

[21] Ibid. 706.

[22] Ibid. 696.

[23] Ibid. 698.

[24] Supra note 16 at 603.

By CHLOE WALLACE

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          The Espionage Act of 1917 intended to put limits on the First Amendment during wartime in order to mitigate fears of potential traitorous American soldiers and spies.^[i] Although this was a wartime measure, several provisions of it are still active. Section 793 of the Act, in recent years, has been used as a tool to charge whistleblowers, which the Government Accountability Office defines as employees who disclose information that they reasonably believe is “evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety.” This law is used to primarily charge those in the intelligence and national security community, as it broadly provides that anyone with access to data that the government deems to be harmful to the nation (i.e., can be used against the U.S. by enemies) that communicates, or attempts to communicate, the information shall be fined or imprisoned.

          Public opinion has shifted in favor of whistleblowers that alert the public of government wrongdoing, but the century-old law still functions as a means to protect the government by shielding the public from information that might reveal wrongdoing.^[ii] The law should change to protect whistleblowers because at present this act poses a threat to government transparency. It allows the government to prosecute leakers and whistleblowers “that it dislikes, while leaving untouched the many leakers within the security state who release classified materials to advance those agencies’ bureaucratic aims.”^[iii] Further, it does not allow the leaker to have a public interest defense in court, despite most coming forward out of a sense of “public duty.”^[iv]

          The Espionage Act of 1917 has evolved from being a means to “punish acts of interference with the foreign relations” into a tool of government suppression that punishes whistleblowers and precludes potential whistleblowers from releasing evidence of wrongdoing to the public.^[v]  Currently, seeking an outside channel for sharing information leaves a whistleblower vulnerable to charges under this Act. Punishing whistleblowers for exposing wrongdoing contradicts the philosophical understanding of punishment because by definition, a whistleblower does the morally “right” thing by exposing crimes or illegality, with no intent to harm, yet still faces the consequences a traitor, with intent to harm, would. This creates an unfair ethical dilemma for potential whistleblowers: should one overlook wrongdoing to protect themselves from punishment, or should they do the right thing and expose the government’s criminal activities but pay the price of punishment? The law should become more sympathetic to the critical role whistleblowers play by informing the public of government wrongdoing, rather than assuming whistleblowers are automatically criminals worthy of punishment.

         While the Espionage Act needs amending, this is not to say that such an amendment should free all leakers from punishment. There are some acts of leaking, or whistleblowing, that do not expose federal wrongdoing. Therefore, they are deserving of punishment. In cases where there is intent to harm the nation, or a revelation puts lives at risk – such as revealing the location of CIA assets or troop movements overseas – there is no public interest component that can mitigate possible punishment to the whistleblower. In sum, under current law anyone with information, regardless of whether or not it is communicated, can hypothetically be charged because the government decides whether or not the information possessed is harmful.^[vi] Since the decision of what is “harmful” rests solely with the government, the government could theoretically use the Espionage Act to crack down on beneficial whistleblowers, which would threaten government transparency. While some information may actually be harmful if leaked to the press, and thus worthy of punishment, the government may prosecute people for revealing information that is merely embarrassing for them. This selective enforcement of the law must change to protect the government’s critics and so that civic-minded leakers are not punished more than actual wrongdoers.

          Over the past two administrations, 13 people have been charged under the Espionage Act. Eight of these cases occurred during the Obama Administration. None involved double agents or wartime security concerns, but instead leaking secure documents. Examples of these document leaks ranged from highly classified military intelligence to embarrassing candid diplomatic messages.^[vii] At present, the Trump Administration is on track to break Obama’s record use of the Act.^[viii] As the use of this law is on the rise again, this law should be amended to enhance safeguards for the individuals willing to hold our government accountable by exposing wrongdoing in the intelligence and national security community. However, it is crucial that a balance must be found to ensure national security and maximum government transparency under the law. The Act should distinguish between whistleblowers acting out of public interest by exposing wrongdoing and a spy selling classified information to an enemy state. On the Hill, Senator Ron Wyden (D-OR) has proposed provisions to harmonize the whistleblower reporting procedures for intelligence community members, but they have yet to be implemented.^[ix] Other legislative efforts to protect intelligence whistleblowers have faced strong headwinds because “working with sensitive U.S. intelligence or national-security information means working within a system with little outside accountability and transparency.”^[x]

           In sum, those that leak information from the intelligence community should have protections under the law as they risk their careers because they have found troubling information that they believe must be brought to light. Currently, the intelligence community has separate rules and little protection for whistleblowers unlike the corporate or federal sphere in part because of the Espionage Act. Without intelligence whistleblowers, we would not know about shortcomings of the drone program, the nation’s use of torture, NSA surveillance, and Russian election tampering; the national conversation would not have shifted on these topics and the government would not be challenged.^[xi] The public has a right to know when the government falters, and ideally, the law should not punish these people for doing the right thing of exposing wrongdoing.

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^[i] David Asp, Espionage Act of 1917, The First Amendment Encyclopedia, (2019).

^[ii] Tom Mueller, Whistleblowers say aloud what many of us think in silence. It’s a relief. The Washington Post (2019).

^[iii] Jay Stanley, Reality Winner Is Latest to Face Prosecution Under Awful World War I Espionage Act, ACLU (2019). https://www.aclu.org/blog/national-security/secrecy/reality-winner-latest-face-prosecution-under-awful-world-war-i?redirect=blog/free-future/reality-winner-latest-face-prosecution-under-awful-world-war-i-espionage-act

^[iv] David Colapinto, co-founder and general counsel of the National Whistleblower Center. https://www.cnn.com/2019/09/27/politics/whisteblowing-explainer-trnd/index.html

^[v] Stephen Vladeck, The Espionage Act and National Security Whistleblowing After Garcetti, American University Washington College of Law, (2008).

^[vi] 18 U.S.C 793 “Gathering, transmitting, or losing defense information,” Legal Information Institute Cornell Law School.

^[vii] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

^[viii] Peter Sterne, Obama Used the Espionage Act to Put a Record Number of Reporters’ Sources in Jail, and Trump Could Be Even Worse, Freedom of the Press, (2017).

^[ix] Rob Wyden, Wyden Secures Key Provisions in 2018, 2019 and 2020 Intelligence Authorization Acts (press release) (2019).

^[x] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

^[xi] Brittany Gibson, All the President’s Whistleblowers, The American Prospect (2019).

By ALEX RAGLAND

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          Environmental justice has heavily relied on the argument of federal common law of public nuisance for its argument. A public nuisance is “an act that causes incontinent or damage to public health or that obstructs public rights.”[i] The first link between pollution and public nuisance was created in the Supreme Court case Georgia v. Tennessee Copper (1907). The case, which was about air pollution due to copper mining, determined that states have the ability to sue for environmental damages.[ii] Furthermore, the case described the nature of the nuisance as:

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source. If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether for the injuries which they might be suffering to their property they should not be left to an action at law.[iii]

          This case laid the groundwork for key environmental cases years later. However, after 1907, the case, and the newly-defined public nuisance, were largely ignored. Seventy years later, the landmark decision in Illinois v. Milwaukee (1972) would cite Georgia v. Tennessee Copper as the Court defined federal common law of public nuisance.[iv]

          The federal common law of public nuisance was recognized in the decision Illinois v. Milwaukee (1972).[v] Before Illinois v. Milwaukee was decided at the Supreme Court, Congress had passed numerous legislations regarding the environment, and more specifically water pollution, such as the Federal Water Pollution Control Act and the National Environmental Policy Act of 1969. The Court decided that the previously listed “existing legislation did not offer the plaintiff the needed remedy” and “appealed to federal common law in fashioning a remedy for Illinois”.[vi] The decision of Illinois v. Milwaukee was a success for environmental law in that it allowed for the possibility for further lawsuits to be filed. After the decision in 1972, a “wave of cases” would emerge as conservation groups attempted to “apply this newly reemergent legal doctrine to other polluters”.[vii] It seemed as if environmental plaintiffs now had an iron-clad argument. However, soon the cracks in relying on the doctrine began to show.

          The doctrine that evolved from the case was “cloaked in general and vague terms.”[viii] The vague terms which defined the federal common law of public nuisance caused confusion in the lower courts.[ix] Now, lower courts had the problem of determining how to apply the doctrine. In response, some courts have “resolved this uncertainty by limiting application of the federal nuisance cause of action to factual settings analogous to the ones that existed in Illinois v. Milwaukee.”[x] This encapsulates multiple specific facts of the case and ensures that the number of environmental cases that can use the federal common law of public nuisance is severely limited. Other courts take the opposite approach and interpret the Court’s opinion as a “broad policy doctrine designed to protect the nation’s waterways and to abate water pollution.”[xi] This split definition of the Court’s ruling was particularly harmful to potential defendants. A “primary complaint” of defendants is that, since the application of public nuisance doctrine with regards to environmental cases is so vague, it is difficult for “defendants to reliably predict what sorts of activities will give rise to liability.”[xii] Regardless of the interpretation, Illinois v Milwaukee’s definition of federal common law forced district courts to “decide on the merits appellants’ right to federal common law relief” on a case-by-case basis.[xiii] While Illinois v. Milwaukee seemed like an easy answer to environmental cases, in reality it caused more trouble.

          Nine years after the original Court decision, the city of Milwaukee appealed a federal district court decision and the Supreme Court held the case Illinois v. Milwaukee (1981), commonly known as Milwaukee II.[xiv] However, in Milwaukee II, eight years after the original case, the Court switched their stance on federal common law. It held that “subsequent federal legislation regarding water pollution—specifically, what had come to be known as the Clean Water Act—was sufficiently comprehensive to displace any appeal to federal common law.”[xv] It was this decision that dampened the possibility of claiming federal common law of public nuisance. However, the Court did affirm the “a remedy for public nuisance is sometimes available under federal common law” [xvi](4 876). While Milwaukee II did severely limit the wide range of the doctrine established by its predecessor, it was not the end of claiming federal common law of public nuisance for environmental cases.[xvii]

          The true limiting case of federal common law of public nuisance was the Supreme Court Case Connecticut v. American Electric Power (2011). Connecticut v. American Electric Power reversed the Second Circuit’s earlier decision and clearly concluded that the Clear Air Act displaces federal common law of public nuisance.[xviii] Justice Ginsburg simply stated “We see no room for a parallel track,” [xix] the parallel track referring to the limiting on carbon dioxide emissions with both the Clean Air Act and invoking by federal common law. In Milwaukee II and Connecticut v. American Electric Power, the Supreme Court severely limited the ability for environmental plaintiffs to invoke federal common law of public nuisance.

          While it seems that federal common law of public nuisance with regard to climate change cases may no longer to viable options for environmental plaintiffs’ arguments, it did open the possibility for another argument to take its place. In the final lines of the Court’s opinion of Connecticut v. American Electric Power, Justice Ginsberg stated, “None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.”[xx] Therefore, the Court’s decisions that federal legislation displaces federal common law of public nuisance does not determine whether or not state common law could be argued successfully. While federal common law may not serve the environmental justice movement any further, there is an opportunity for state common law to pick up where it left off.

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[i] Roger Meiners and Bruce Yandle, “The Common Law: How it Protects the Environment,” PERC Policy Series, (1 May 1998) https://www.perc.org/1998/05/01/the-common-law-how-it-protects-the-environment/

[ii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[iii] Illinois v. City of Milwaukee, 406 U.S. 7 (1972)

[iv] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[v] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[vi] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[vii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[viii] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[ix] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[x] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[xi] Id.

[xii] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xiii] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[xiv] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Connecticut v. American Electric Power, 564 U.S. 10 (2011)

[xix] Ibid., 11.

[xx] Ibid., 15.

By QUENTIN LEVIN

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          On Friday, January 3, 2020, the U.S. military, on the orders of the President of the United States, conducted an airstrike that killed Iranian general Qasem Soleimani, along with several other people traveling with him in Iraq. The attack was both politically and legally divisive in the U.S. Democrats and Republicans are now sparring over whether President Trump was wise to order the strike—and whether he could. Although there are international law questions related to targeted killing, this blog addresses some of the domestic law issues regarding whether the President could order this strike without further Congressional approval before initiation.

          This post first argues that while the strike was likely unsustainable under the 2002 Iraq AUMF, the Prize Cases and the War Powers Resolution currently grant the president discretion to conduct military strikes in self-defense. If the intelligence of an imminent Iranian strike is ultimately found to be true, then this strike can be upheld under the war power. Second, this post explains why legislative—not judicial—methods would be most effective for members of Congress seeking to limit presidential war power. Legal analysis is the sole purpose of this blog post; it does not take a position on the wisdom of the strike.

          The Trump Administration has argued that the drone strike was legal under U.S. domestic law because it was a “defensive” action taken to avert an “imminent” attack on U.S. interests.[i] National Security Advisor Robert O’Brien has specifically argued that the 2002 Authorization for the Use of Military Force against Iraq provided the President with statutory authority to order this strike.[ii] However, this argument is legally unconvincing because Section 3(a) of the 2002 AUMF solely authorized the President to enforce UN Security Council Resolutions related to Iraq and to defend against the “threat posed by Iraq.”[iii] On its face, killing an Iranian general pursues neither of these objectives.

          Still, the 1973 War Powers Resolution grants the President discretion to use military forces overseas for limited time periods without affirmative congressional approval.^[iv] Most importantly, the United States Supreme Court held in the Prize Cases that the President possess implied constitutional authority to repel sudden or imminent attacks.^[v] In that case, the Court upheld President Lincoln’s blockade of the South (without prior Congressional approval) because the President has an implied duty to defend the nation when circumstances of war present themselves. Applying this precedent, if—and only if—intelligence indicated an imminent Iranian attack on the U.S. that could be averted by killing its military leadership, then the strike could be justified under this implied Constitutional power. Then, the method of using U.S. forces would also be valid under the War Powers Resolution.

          One possible counterargument here is that the Prize Cases precedent should only be applied when another country has already begun to attack the U.S. In the Civil War, the South had clearly created a state of war by seceding. If, by contrast, the Prize Cases were read to justify a pre-emptive strike, this would erode Congress’s Article I power to declare war because a pre-emptive strike could, functionally, eliminate any choice for Congress regarding whether to initiate hostilities by declaring war, as the President could initiate that war himself. For instance, if the U.S. launched a first strike against a nuclear power, Congress would have little choice but to support the action to ensure national survival. And how would one ever know, in the case of a pre-emptive strike, if war was truly inevitable? If it is ultimately proven that Soleimani was not in the midst of executing an actual attack on the U.S., then the decision to target him might not be sustainable under the Prize Cases. This dynamic highlights the inherent issue in presidential war power: Most action can only be proven as illegal after it occurred, and the secret nature of the intelligence makes it difficult for the public to scrutinize.

          As further facts surrounding the operation are revealed and new judicial precedent develops, this legal analysis will likely change. However, as things currently stand, it tentatively appears that the President possessed at least colorable authority to order this strike. If members of Congress believe this is too much unilateral authority for any president, they must move to change the law and enforce their Constitutional prerogatives. Judicial avenues, however, will be the most difficult route for Congress to limit presidential war powers. In particular the political question doctrine is a barrier to members of Congress bringing suits against a president in attempt to limit his war power. For example, a federal Circuit Court held in Campbell v. Clinton that members of Congress lacked standing to challenge President Clinton’s military campaign in Kosovo and Yugoslavia because they possessed legislative tools that Congress could use instead.[vi]

          Instead, if Congress wishes to limit presidential war power, it should work on a bipartisan basis to reform and strengthen the War Powers Resolution and the 2002 AUMF to reflect the current security conditions that the country faces. Bipartisan reform is most likely to have the political legitimacy needed to succeed. There is no doubt that today’s threats require decisive action from the Commander-in-Chief. But it is for Congress and the President together to decide what scope that action may take since the Constitution divides the war power between the Commander-in-Chief and the Congress.

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[i] Adam Taylor, The key word in U.S. justifications for the killing of Iranian general: Imminent, THE WASHINGTON POST (5 Jan. 2020) https://www.washingtonpost.com/world/2020/01/05/key-word-us-justifications-killing-iranian-general-imminent/

[ii] Ibid.

[iii] 50 U.S.C. § 1541 (2020)

[iv] 50 U.S.C. § 1541 (2020)

[v] Prize Cases, 97 U.S. 635 (1863)

[vi] Michael John Garcia, War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution, CONGRESSIONAL RESEARCH SERVICES (17 Feb. 2017) https://fas.org/sgp/crs/natsec/RL30352.pdf