GUULR Blog

A Brief Consideration of Sexual Assault Cases in the Criminal Justice System

By LINDSEY CLARK


          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.


[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.

National Security Whistleblowers and the Espionage Act

By CHLOE WALLACE


          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.


[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).

Legality of Environmental Justice

By ALEX RAGLAND


          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.


[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.

Presidential Power

By QUENTIN LEVIN


          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.


[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

Paying NCAA Student-Athletes

By DANNY MCCOOEY


          After years of petitioning the NCAA for payment, collegiate student-athletes finally saw some progress in their favor over the past few months. On September 27th of this year, California passed SB 206 or the California Fair Pay to Play Act. The law, scheduled to be implemented in 2023, allows student-athletes to be compensated for the use of their name, image, or likeness.[i] In other words, when a student-athlete’s name is used in a video game or sells an autograph, he or she will receive monetary compensation.[ii] The law also provides other benefits for student-athletes including permitting them to hire agents before their graduation.[iii] Many people view the law as a positive step away from the unjust system of collegiate athletics in place now. With their talents, student-athletes in various sports propel billion-dollar industries that benefit their schools, their conferences, and the NCAA itself through the student-athletes’ unpaid labor. UCLA head football coach Chip Kelly said the law is, “the right thing to do.” He continued, “It doesn’t cost the universities, it doesn’t cost the NCAA.”[iv] This is because the student-athletes would be financially gaining only from the consumer’s purchases. This would seem like a logical solution that should have happened long ago, but the problem runs deeper. The NCAA pushes back on the ruling explaining that California does not foresee the problematic implications the bill could cause and they are threatening to punish the state, the schools, and the student-athletes with bans from NCAA competition. Although, the implications of the law are still uncertain and legal questions on all sides of the argument remain, one thing has been determined: the system today is broken and it is going to take cooperation on all sides to fix it.

          If the NCAA and the California legislature continue to struggle to find common ground, the legality of the law will be questioned in court. Under the United States Constitution, California can argue that its state legislature has a right to enact the law. The Tenth Amendment proclaims, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[v] This guarantees the States the right to regulate sectors like education and sport – both fields that the California Fair Pay to Play Act encompasses. On the other hand, the NCAA believes that the law is unconstitutional and the organization plans to challenge it in court under the interstate commerce clause. The commerce clause is a line from Article I of the Constitution that empowers Congress to regulate commerce between states.[vi] The clause has been cited in the past to stretch federal power over states’ rights and the NCAA could try to use it in a similar manner.[vii] The California collegiate teams engage in interstate commerce. They generate revenue from playing schools all over the country, they spend money when they travel to opposing schools for competitions, and they receive funding from donors or sponsors who are not solely based in California. These facts allow the NCAA to make the argument that this law cannot be legally passed through a state legislature but only by the federal government.

          Among the NCAA’s concerns is the fact that the law grants California schools an obvious recruiting advantage over the rest of the nation.[viii] Most of the country’s best student-athletes would desire to attend school in California if that was the only state that offered them a chance to make money. The NCAA has reacted by threatening the California schools with a ban from NCAA competition and millions of dollars in fines because of their violation of NCAA rules. This would be an enormous blow to the student-athletes and to the revenues of the universities and conferences they represent. The potential prohibition also brings up further questions like is it fair for the NCAA to punish the student-athletes, schools, and conferences at all if they are just complying with a state law?[ix] The California schools that do not support the law will still be forced to obey it and will thus suffer the impending NCAA punishments. Another apprehension of league officials is if the bill is moving to professionalize college sports, then how will this impact NCAA sports that do not attract hundreds of thousands to stadiums on Saturdays and generate billions of dollars of revenue?[x] [xi] The major revenue generating sports like football and basketball have absorbed so much of the attention of lawmakers and NCAA officials that it is easy to pass over how SB 206 will affect smaller men’s and women’s sports.[xii] There are varying opinions on this. Stanford women’s basketball coach Tara VanDerveer worries that “If it becomes an absolute free for all,” female student-athletes “are not going to be the winners in grabbing for cash.”[xiii] She believes that the money will be channeled to big programs like football and men’s basketball, while leaving her student-athletes out to dry. In contrast, California Senator Nancy Skinner, who co-wrote the bill, believes that given the lack of financial gain women can achieve in American professional sports, the act gives women student-athletes a chance to market themselves while in college.[xiv]

          On October 29th the NCAA board recently voted to lessen the restrictions on student-athletes’ endorsement money. Although the vote was a step in the same direction as the California law, the result is still very arbitrary as it did not yet put in place any physical changes.[xv] The NCAA and the state of California are stuck in a game of chicken waiting for the other to back down first. The NCAA thinks that the schools will convince the state to cave back to original NCAA regulations so they do not lose the revenue a potential ban would yield. Meanwhile, California thinks the NCAA will respect their law based on the major media market the state maintains. SB 206 leaves open the possibility of amendment before it comes into action in 2023 but if compromise does not occur soon it may be the courts that settle the decision.


[i] California Senate Bill No. 206 § 1(b).

[ii] SB 206 does stipulate that an exception to this rule is that student-athletes cannot enter into contracts or make exclusive deals with a company that contradicts a current contract their program has. For example, a student-athlete could not sign with Reebok at Georgetown University because the school maintains a contract with Jordan Brand.

[iii] Ibid

[iv] Bill Plaschke, Column: California’s College Sports Reform Bill Exposes Hypocrisy of NCAA’s Money Grab, LOS ANGELES TIMES (1 Oct. 2019) https://www.latimes.com/sports/story/2019-09-30/ncaa-reform-sb206-california-college-sports-money

[v] Content Team, Reserved Powers – Definition, Examples, Cases, LEGAL DICTIONARY (15 Feb. 2019) https://legaldictionary.net/reserved-powers/

[vi] The Editors of Encyclopaedia Britannica, Commerce Clause, ENCYCLOPÆDIA BRITANNICA (29 Apr. 2016) https://www.britannica.com/topic/commerce-clause

[vii] Ibid.

[viii] Alan Blinder, Paying College Athletes: Answers to Key Questions on New Law, THE NEW YORK TIMES (30 Sept. 2019) https://www.nytimes.com/2019/09/30/sports/should-college-athletes-be-paid.html

[ix] Ibid.

[x] Ibid.

[xi] Chris Smith, College Football’s Most Valuable Teams: Reigning Champion Clemson Tigers Claw Into Top 25, FORBES (1 Dec. 2019) https://www.forbes.com/sites/chrissmith/2019/09/12/college-football-most-valuable-clemson-texas-am/#2014bdbca2e7

[xii] Elliott Almond, What Does the NCAA Board’s Vote on Paying Athletes Actually Mean?, THE MERCURY NEWS (30 Oct. 2019) https://www.chicagotribune.com/sns-tns-bc-fbc-bkc-almond-column-20191030-story.html

[xiii] Ibid.

[xiv] Ibid.

Minnesota Voters Alliance v. Mansky: Upholding Grounds for Free Speech

By DUSTIN HARTUV


     Before 2018, Minnesota Statute § 211B.II prevented individuals from wearing politically affiliated symbols/clothing at polling booths on election days.[i] The statute was relatively broad, and so officials would distribute information to polling booth administrators to define specific articles of clothing that failed to uphold the rules outlined in the statute. If members of the public were caught disregarding the statute, the individual would still be allowed to vote, but could face misdemeanor prosecution.

         The Minnesota Voters Alliance (MVA) is a non-partisan organization that seeks to encourage voting by all members of the population. To challenge the statute, executive director Andrew Cilek wore a t-shirt with a logo representing the Tea Party, and was barred from voting in 2010.[ii] The MVA, along with Minnesota Majority, Minnesota Northstar Tea Party Patriots, and Election Integrity Watch, sued the Minnesota Secretary of State for violating the First Amendment.

         The case was first taken to a district court, and the MVA’s case was denied. On appeal, the Eighth Circuit upheld the district court’s determination, though it was nearly persuaded by some of the arguments before agreeing with the district court. In addition to the arguments of free speech, the MVA claimed that since the Tea Party was not a political party, the apparel did not count under the law. The Eighth Circuit claimed that while that was true, a reasonable interpretation of the statute would include the Tea Party even while it was not officially a political party in Minnesota.[iii]

         The MVA then took the case to the Supreme Court, arguing that Minnesota was imposing a “speech-free zone” at polling locations. The notion of a “speech-free zone” has its history in the Vietnam protests in the 1960s, when universities began to designate specific zones where protests would be allowed.[iv] Even though there have been constant debates about these zones, there has yet to be a broad ruling by the Supreme Court specifically on these zones. The Supreme Court has, however, decided on issues related to the matter.

         For example, in cases such as Police Department of Chicago v. Mosley, the Supreme Court used language involving time, place, and manner restrictions.[v] As the name suggests, the court determined that restrictions of public speech depend on the time, place, and manner of the speech. Another doctrine of the Supreme Court used in manners of public speech is the public forum doctrine, which was adopted from 1939’s Hague v. Committee for Industrial Organization.[vi] The public forum doctrine limits the ability of governments to restrain speech in areas that have historically been places of public congregation for debate. Along these lines, “speech-free zones” could be determined to be unconstitutional if one can prove that universities are historic areas of public debate.

         In the Supreme Court’s announcement of Minnesota Voters Alliance v. Mansky on June 14, 2019, the Court reversed the decision of the Eighth Circuit, stating that the statute violated the Free Speech Clause of the First Amendment.[vii] The opinion was written by Chief Justice John Roberts, and the Court argued that a polling place is not a public forum. However, based on the precedented time, place, and manner restrictions, while the statute was reasonable, it was too broad and did not properly define the term “political.”[viii] Therefore, although the decision was reversed, it set a precedent that polling places are not public forums, and that speech may be inhibited as long as the statute is not too broad and covers the time, place, and manner restrictions.


[i] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

[ii] Id.

[iii] Id.

[iv] David L. Hudson, Jr. and Andrew Gargano, Free-Speech Zones, Freedom Forum Institute (Nov. 8, 2017), https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/free-speech-on-public-college-campuses-overview/free-speech-zones/.

[v] Kevin Francis O’Neill, Time, Place and Manner Restrictions, The First Amendment Encyclopedia (last visited Nov. 18, 2019), https://www.mtsu.edu/first-amendment/article/1023/time-place-and-manner-restrictions.

[vi] David L. Hudson, Jr., Public Forum Doctrine, The First Amendment Encyclopedia (2017), https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine.

[vii] Minnesota Voters Alliance v. Mansky, 585 U.S. 1 (2018).

[viii] Minnesota Voters Alliance v. Mansky, Oyez, https://www.oyez.org/cases/2017/16-1435 (last visited Nov 18, 2019).

The International Law of Drones

By MATTHEW BUCKWALD


“The United States Government is fully committed to complying with its obligations under the law of armed conflict, minimizing, to the greatest extent possible, civilian casualties, and acknowledging responsibility when they unfortunately occur during military operations,” said a spokesperson for National Security Council on the day that President Trump decided to revoke an Obama-era order to publicly disclose the number of civilians killed in airstrikes against terrorist targets “outside areas of active hostilities.”[i] While there is a conversation to be had about the relationship between paramilitary activities and public knowledge, this article will examine what exactly this spokesperson meant by “the law of armed conflict” with respect to drone use.

The most famous of unmanned aerial vehicles (“UAVs”) is undoubtedly the drone. The drone debuted in the Balkans in the 1990s to be used solely for military intelligence in the form of reconnaissance. However, after 9/11 the drone was used by the Bush administration to target specific individuals known to be affiliated with Al-Qaeda (“AQ”) or the Taliban. Such drones are equipped with a number of missiles in order to hit their desired target. The Obama administration, however, moved away from the Bush-era use of targeted strikes to an era of “signature strikes,” in which drones were used to target profiles of people rather than specific people themselves. As it stood during the Obama administration, drone strikes targeted profiles rather than people. The profile included men, aged 18-25, located in geographic areas where there was known terrorist activity. The name “signature” comes from the idea that those targeted by drone strikes fit the “signature” profile of a known militant. While some argue that signature strikes are immoral and an uncouth use of military force that potentially could (and historically has, in relatively small numbers) kill civilians as collateral damage, others argue that the collateral damage with drones pales in comparison to a boots-on-the-ground military attack. This same side would also argue that although you cannot fully know from a profile if a potential target is involved in terrorist activities, anyone who is in a geographic region with a known terrorist camp really could not be there for innocent purposes.[ii]

“Signature strikes have resulted in large numbers of bystander casualties in Pakistan and Yemen,” Jameel Jaffer, a deputy legal director for the American Civil Liberties Union, told Foreign Policy.[iii] One tragic blunder came on Dec. 12, 2013, when a U.S. drone flown by Joint Special Operations Command killed 12 Yemeni civilians in a single signature strike, leading the U.S. government to reportedly make about $1 million in condolence payments.[iv] Amnesty International, which examined 45 drone strikes in Pakistan between January 2012 and August 2013, reported that one signature strike killed 18 laborers and injured 22 others in July 2012.[v] Of course, this begs the question if the law allows for the use of drones.

Since 2011, there have been over 550 strikes in Libya, which amounts to more than the strikes ordered in Somalia, Yemen, or Pakistan.[vi] Libya remains one of the most targeted countries of U.S. drone strike attacks in the history of drone usage. If we were to examine the legal phenomena of drone strikes, Libya is a good place to start.

In analyzing the legality of drone use as a military tactic in Libya, the two jus in bello criteria must be applied. The first criteria to assess the legality of any act during war is discrimination, as codified in Article 52(2) of the 1977 Geneva Additional Protocol I,[vii] meaning that militaries must do their best to distinguish between legitimate and illegitimate targets. In this case, legitimate targets include anything actively engaged in harming, as to avoid the targeting of civilians, schools, religious centers, and hospitals. The second criteria is proportionality, as codified in Article 51(5)b of the 1977 Geneva Additional Protocol I,[viii] meaning that the force that a state uses must be proportional to the harm that they suffered or are expecting to suffer. In relation to the first criteria, drones are absolutely discriminate. They can loiter above their targets for hours to wait for the least amount of civilians. Additionally, the most used weapon utilized in a drone is a Hellfire missile, which has a reported “kill radius” of 50 feet and a “wounding radius” of 65 feet.[ix] The small blast radius of the Hellfire missile ensures more precision than a human attack. In relation to the second criteria, drones are also proportional, as the harm suffered by a terrorist who has yet to be captured or killed would be far worse than the harm caused by a drone strike. As both criteria of jus in bello are met, the drone strikes in Libya are unquestionably legal.

Although drones are legal under the scope of international law, the international community certainly does not cease to harshly criticize the United States for the use of drones bearing the collateral damage of civilians. In an attempt to restore the reputation of the United States, an effective step would be to narrow the scope of signature strikes. Instead of adhering to the Obama-era use of drones to target the profiles of suspects, perhaps this scope of narrowed to a more specific profile. Even more, perhaps the policy of drone strikes should revert back to the Bush-era use of drones to target specific people that are known to be members of AQ or the Taliban, in order to maximize the amount of discrimination that is being pursued, as required by jus in bello.

Although actions taken by the U.S. in the post-9/11 world order may have been strategically, ethically, and politically questionable, there is no doubt that they were legal as demonstrated through relevant international laws. This is not to say, however, that there is not work to be done to restore the stature of the U.S. in the international legal regime. Through reforming the methods in which drones are used, the U.S. can ensure its respectable reputation in international law.


[i] Zachary Cohen and Ryan Browne, “Trump Revokes Obama Order on Reporting Civilians Killed in US Airstrikes,” CABLE NEWS NETWORK, 6 Mar. 2019, www.cnn.com/2019/03/06/politics/trump-executive-order-revocation-terror-strike-civilian-deaths/index.html?utm_content=2019-03-07T00%3A45%3A11&utm_medium=social&utm_term=link&utm_source=fbCNNi&fbclid=IwAR1fWspqiB4lQVybkUj1gGLGv_-SKSEaX9ZLhHqi8Qwn6PWlC_7QLZdSF4g.

[ii] Daniel Byman, “Why Drones Work.” Foreign Affairs, FOREIGN AFFAIRS MAGAZINE, 15 Feb. 2019, www.foreignaffairs.com/articles/somalia/2013-06-11/why-drones-work.

[iii] Dan De Luce and Paul McLeary, “Obama’s Most Dangerous Drone Tactic Is Here to Stay.” Foreign Policy, Foreign Policy, 6 Apr. 2016, https://foreignpolicy.com/2016/04/05/obamas-most-dangerous-drone-tactic-is-here-to-stay/

[iv] Craig, Iona. “What Really Happened When a US Drone Hit a Yemeni Wedding Convoy?” AL JAZEERA AMERICA, 20 Jan. 2018,  http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2014/1/17/what-really-happenedwhenausdronehitayemeniweddingconvoy.html

[v] Declan Walsh and Ihsanullah Tipu Mehsud, “Civilian Deaths in Drone Strikes Cited in Report,” THE NEW YORK TIMES, 22 Oct. 2013, www.nytimes.com/2013/10/22/world/asia/civilian-deaths-in-drone-strikes-cited-in-report.html.

[vi] Nick Turse, et al, “The U.S. Has Conducted 550 Drone Strikes in Libya Since 2011 – More Than in Somalia, Yemen, or Pakistan.” THE INTERCEPT, 20 June 2018, https://theintercept.com/2018/06/20/libya-us-drone-strikes/

[vii] “Protocols Additional to the Geneva Conventions of 12 August 1949.” INTERNATIONAL COMMITTEE OF THE RED CROSS, 30 Nov. 1993, https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf

[viii] Id.

[ix] Frédéric Ocqueteau, « Grégoire Chamayou, Théorie du drone », CHAMP PÉNAL, 07 Nov. 2013, http://journals.openedition.org/champpenal/8709

 

 

Libel Law—Past and Present

By JILLIAN AICHER


The historic significance of U.S. libel law—that is, the area of law concerning written or published defamation—can be understood in considering the questioning of free speech in early American laws, such as the Sedition Act of 1798, and in the notable Peter Zenger trial.[i]  Supreme Court Justice Clarence Thomas’ February 19th concurring opinion in Kathrine Mae McKee v. William H. Cosby, Jr. identifies current questions on libel law and its proper constitutional underpinnings.

Until 1964, libel law was not defined in federal jurisprudence, insofar as the statutes and case law lacked clear terms governing what content and intent were required for a media outlet’s publication to be considered libelous or defamatory. States, therefore, interpreted libel laws differently and applied different standards in terms of freedom of speech and the necessity for the speaker to demonstrate “actual malice.” The 1964 Supreme Court decision in New York Times Co. v. Sullivan limited the ability of a public figure to successfully sue a media outlet for libel under federal law.[ii] The Court found that the media source must demonstrate “actual malice” in its intended purpose of publication to be found to have libeled a public figure.[iii] This ruling standardized libel law, granting media outlets expanded federal protection against libel claims (resulting in increased freedom of speech) and restricting the potential for public figures to assert libel claims.

On February 19, 2019, Justice Thomas published a concurring opinion in the Kathrine Mae McKee v. William H. Cosby, Jr. case. In his comments, he questioned the constitutional grounds on which the Court in New York Times Co. v. Sullivan had authority to define libel law and the need for the Court’s 1964 ruling.[iv] Justice Thomas accepts the Court’s finding in the 1964 ruling that the New York Times was not guilty of libel, because the newspaper did not name Sullivan (the plaintiff and public figure accusing the media of libel) or publish defamatory content implicating him. He challenges the Court’s decision, however, positing that it could have limited its decision to a finding that there was no evidence to support Sullivan’s claim. He posits that the Court did not have the constitutional authority to expand its ruling create a new category of libel law to apply to the interests of public figures.[v] Justice Thomas suggests that the majority in the Court’s 1964 ruling requiring “actual malice” before a libel claim could be successful against a media defendant “made little effort to ground their holdings in the original meaning of the Constitution.”[vi] In particular, Justice Thomas states that the Court’s decision considered neither the First nor Fourteenth Amendments’ authoritative limits—or lack thereof—on libel cases:

“Although the Court held that its newly minted actual-malice rule was ‘required by the First and Fourteenth Amendments,’ id., at 283, it made no attempt to base that rule on the original understanding of those provisions.”[vii]

Justice Thomas’ concurrence in McKee asserts that the New York Times decision was ungrounded in constitutional support, yielding it a product of political rather than strictly legal understandings of libel. He also claims that the Court’s 1964 decision strayed significantly from the historic “common law of libel,”[viii] vastly shifting, and increasing, the media’s power and authority in a previously-unachievable national manner.

Though Thomas’ review of the constitutionality of the 1964 decision in the New York Times case validly assesses the decision as an interpretation (not direct implementation) of the Constitution, the need for federal standards in libel and defamation cases persists. The New York Times decision established a precedent that has, with good reason and in keeping with the First Amendment, protected the freedom of the press, while also allowing for public figures to assert libel claims where they can demonstrate a publication’s malicious intent. Any reconsideration or opinion that seeks to overturn or revisit the Court’s New York Times ruling could elicit a consequential shift in the processes and output of U.S. media outlets. Justice Thomas’s concurring opinion—along with comments from President Trump during his presidential campaign regarding the restrictiveness of the 1964 libel decision—have already begun to foster national debate on the implications of libel law on First Amendment and Fourteenth Amendment freedoms in the U.S.[ix]


[i] Alfred H. Kelly, “Constitutional Liberty and the Law of Libel: A Historian’s View,” The American Historical Review vol. 74 (Oxford University Press, 1968).

[ii] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[iii] Ibid.

[iv] Kathrine Mae McKee v. William H. Cosby, Jr., 586 U. S. 1 (2019) (Thomas, J concurring opinion).

[v] Ibid.

[vi] Ibid.

[vii] Ibid.

[viii] Ibid.

[ix] Adam Liptak, “Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling,” New York Times, Feb. 19, 2019. https://www.nytimes.com/2019/02/19/us/politics/clarence-thomas-first-amendment-libel.html

Intersectionality and Immigration: How Race, Class, and Gender Play into Debates Surrounding DACA

By KAITLIN HUGHES


Immigration has played a controversial role in the American political landscape for decades, especially as the world globalizes and political parties in the U.S. become more divisive.  Since the Obama administration’s implementation of the executive order entitled Deferred Action for Childhood Arrivals, or DACA, immigration policy has come to the forefront of many debates.  A few years after the executive order’s enactment, Donald Trump ran for office on a rather xenophobic and nationalistic platform, and he promised to phase out DACA as soon as he got to office.  Thus, with President Trump now in office, he announced in 2017 that he would slowly eradicate DACA and move toward a stricter, more exclusionary immigration policy. To do this, Trump employs a specific definition of “nation” and racist rhetoric, aiming to fuel public support for unsubstantiated economic and social arguments that support a phase-out of DACA.  On the other hand, opposing arguments that support DACA and the Dream Act use a more inclusive lens that considers the intersection of race, class, and gender, and views the nation as a more diverse and global community.

To deem immigrants as an “other” in the U.S. and gain public buy-in, Trump’s rhetoric portrays all migrants as evil and pits them against American citizens.  In his statement on September 5th, 2017, Trump declares that the government must implement the rule of law and protect its people from this unconstitutional executive order, or DACA, in which undocumented immigrants can live and work in this country.  He deliberately uses words with negative connotations when describing immigrants to portray them as sub-human and in opposition to the American people and their values. He refers to undocumented workers as “illegals,” “criminals,” “dangerous,” and as being part of “drug cartels” and gangs such as MS-13.[i]  He simultaneously juxtaposes these descriptions with portrayals of the American population as “students,” “taxpayers,” “jobseekers,” “citizens,” and “hardworking.”[ii]  He goes as far as to say that Americans have been “victimized” by immigrants and DACA, more specifically, and that “we must remember that young Americans have dreams too,”[iii] as if Americans and immigrants exist in opposition to each other with one group maintaining an insider status while the other group exists as an alien outsider.  Andersen and Collins pose a question in “Systems of Power and Inequality” regarding the different connotations of referring to immigrants as “illegal aliens” as opposed to “undocumented workers,” and Trump’s rhetoric deliberately and clearly shows that his administration views immigrants as “un-American,” as Andersen and Collins phrase it.[iv]  This sort of rhetoric becomes dangerous, as we see in Nguyen’s “Becoming Suspects,” because it turns specific populations into suspects, and the general public subsequently starts to police each other, sometimes deliberately and sometimes subconsciously, as the image engrains itself into the public psyche.   

Moreover, Trump’s arguments to phase out DACA based on this “otherizing” rhetoric results from the toxic masculinity that exists within the United States and within Trump himself.  Kimmel explains that “We come to know what it means to be a man in our culture by setting our definitions in opposition to a set of ‘others’—racial minorities, sexual minorities, and, above all, women.”[v] Thus, to appear as powerful and an effective president, Trump tries to embody the classic interpretation of manhood by orienting himself in opposition to immigrants, creating hard-hitting policies against them, and persuading the public to feed into his power by using divisive rhetoric.  In other words, he embodies a classic example of hegemonic masculinity as he tries to become “a man in power, a man with power, and a man of power,”[vi] by positioning himself against some outside group, in this case immigrants, as so many men have done in the history of this country.  Yet, even though this pattern has repeated itself many times, much of the population still does not grasp the concept of inclusion, rather than exclusion, which Kimmel claims to be the only way to combat this toxic masculinity.[vii]  Moreover, many people, most importantly the Trump administration, continue to define the nation in terms of whiteness, masculinity, and socio-economic wealth.

Thus, as a result of this societal gender struggle and Trump’s subsequent exclusionary rhetoric, arguments arise to support stricter immigration policies based on claims that immigrants take jobs away from Americans, hurt the economy, and raise crime rates.[viii]  The Trump administration and others who position themselves against DACA and the Dream Act claim we can only protect the “nation” by preventing these things from happening, or, in other words, by excluding undocumented workers and restricting paths to citizenship.  However, countless economists and political scientists have disproven this theory that DACA recipients create lost jobs, crime, and a slower economy. Andersen and Collins argue that immigrants supply the labor that the global economy needs,[ix] and the Center for American Progress found that DACA recipients have had a positive impact on the economy as well-educated and skilled workers and students.[x]  Moreover, Trump advocates for a merit based immigration policy to bring growth to the economy and skill to the workforce, yet DACA recipients “are a perfect example of such immigrants: They are educated, working for U.S. employers, speaking perfect English, and they are young”[xi] because the selective application process requires applicants to have a specific level of education, and it also denies applicants who have a significant criminal record, thus disproving Trump’s claim that DACA allows criminals to permeate the country.[xii]  

Clearly, the baseless arguments of the Trump administration and others who support a phase-out of DACA and exclusive paths to citizenship stem from a largely white and male definition of nation; therefore, we must think of the nation through an intersectional lens in which we study how race, class, and gender interconnect to avoid deeming certain groups as “others” and to help create more inclusive and just policies.  Collins and Bilge explain that when we use an intersectional lens, we better understand inequality and its effect on the certain positionalities of individuals. It also allows us to move past grouping all immigrants as a “homogeneous, undifferentiated mass,”[xiii] as Trump does, to view undocumented workers as humans, rather than aliens, who share the same basic humanity as any other American citizen.  Moreover, intersectionality allows us to better understand that DACA recipients are not simply undocumented workers, but they are people who grew up in this country, many of them boys and girls, many of them now women and men, who have a relatively high level of education and countless other intersecting identities that play into their social location.  Additionally, when policy makers study the intersection of race, class, and gender, they can deconstruct Trump’s dominating rhetoric that dangerously reshapes the public’s view of this minority group. Without representation, or simply legal status, immigrants, as a minority, cannot stand up for themselves to counteract stereotypes; therefore, policy makers create bad social policy based on misguided research and public opinion.[xiv]  Thus, following in the guidance of Andersen and Collins who advocate for an inclusive perspective, we must not reduce Dreamers to the single identity of undocumented worker, and we must understand that they have established a life here with an education and a job, in most cases knowing no other country as their home.[xv]  

When we adopt this intersectional lens, we begin to grasp the complexity of the debate surrounding immigration that deals with real people who all share the same humanity.  We cannot simplify the debate by deeming immigrants as “others” and thus stripping them of their humanity to more easily exclude them. Moreover, intersectionality illustrates that Dreamers are “American” in every sense of the word in terms of a global, inclusive definition of our nation.  Leaders debating the constitutionality of DACA should take this viewpoint into consideration, and most importantly they must remember that their words and policies affect real people who share the same humanity as them.


[i] “Statement from President Donald J. Trump.” Whitehouse.gov, September 5, 2017. https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-7/

[ii] Ibid.

[iii] Ibid.

[iv] Andersen, Margaret and Patricia Hill Collins. “Systems of Power and Inequality.” In Race, Class, and Gender: An Anthology, edited by Margaret L. Anderson and Patricia Hill Collins, 51-73. Michigan: Wadsworth/Thomson Learning, 2004.

[v] Kimmel, Michael S. “Masculinity as Homophobia: Fear, Shame, and Silence in the Construction of Gender Identity.” In The Social Construction of Difference and Inequality, edited by Tracy E. Ore, 134-51. New York: McGraw-Hill, 2011.

[vi] Ibid., 137.

[vii] Ibid., 149.

[viii] Spagat, Elliot and Christopher Rugaber. “AP Fact Check: What the Trump administration said about DACA.” Public Broadcasting Service, September 5, 2017. https://www.pbs.org/newshour/politics/ap-fact-check-trump-administration-said-daca

[ix] Andersen and Collins, “Systems of Power and Inequality,” 67.

[x] Wong, Tom K. “New Study of DACA Beneficiaries Show Positive Economic and Educational Outcomes.” Center for American Progress, October 18, 2016. https://www.americanprogress.org/issues/immigration/news/2016/10/18/146290/new-study-of-daca-beneficiaries-shows-positive-economic-and-educational-outcomes/

[xi] Peri, Giovanni. “The Economic Cost of Repealing DACA.” Econofact, Setpember 11, 2017. http://econofact.org/the-economic-cost-of-repealing-daca

[xii] Department of Homeland Security. “Consideration of Deferred Action for Childhood Arrivals (DACA).” U.S. Citizenship and Immigration Services.  Accessed February 27, 2018. https://www.uscis.gov/archive/consideration-deferred-action-childhood-arrivals-daca

[xiii] Collins, Patricia and Sirma Bilge. Intersectionality. Massachusetts: Polity Press, 2016.

[xiv] Andersen, Margaret and Patricia Hill Collins. “Why Race, Class, and Gender Still Matter.” In Race, Class, and Gender: An Anthology, edited by Margaret L. Anderson and Patricia Hill Collins, 2-18. Michigan: Wadsworth/Thomson Learning, 2004.

[xv] Ibid., 12.

PRISON GERRYMANDERING AND FELON DISENFRANCHISEMENT: A REPRESENTATION CRISIS

Prison Gerrymandering and Felon Disenfranchisement are the latest evolution of policies and laws designed to prohibit equal representation and limit universal suffrage. Often overlooked, these policies have created a crisis where representation is taken away from communities disproportionately affected by mass incarceration where millions of individuals continue to be categorically denied the right to vote. Prison Gerrymandering stems from United States Census Bureau policy that “counts incarcerated people as residents of the towns where they are confined, though they are barred from voting in 48 states and return to their homes after being released.”[i] The key effect of this policy is the artificial inflation of “constituents” in districts where prisons are located, which means “ballots cast by citizens who live in districts that have been drawn to include prisoners are weighted heavier than are those of voters who live in districts that contain no such facilities.”[ii]

Let’s examine two examples that demonstrate the severity and effects of the policy. In Anamosa, Iowa, because Anamosa State Penitentiary’s population of 1,321 was counted as part of the town ward in which it was located, the penitentiary skewed town districting so its ward had only 58 constituents eligible to vote. One city councilman, Danny Young, “was elected with two write-in votes”[iii] and his constituents had “about 25 times as much clout as those in the other wards.”[iv] It’s worth noting as well “the prison population is nearly a third African American or Latino, but Anamosa is a small, rural city where less than 2 percent of the residents are black or Latino.”[v] In Wisconsin, “The 53rd Assembly District… has the highest concentration of prisons in the state and 5,583 of its ‘constituents’ are to be found behind bars.”[vi] What this ultimately means is that every ninety residents residing in that Assembly District have “the same amount of political clout as 100 residents of any other district,”[vii] and “only 590 of its 2,784 African American ‘constituents’ actually reside outside prison walls.”[viii] Voters in districts with prisons essentially have “extra political clout… solely on the basis of their residential proximity to a prison.”[ix] Because of the prison population demographics in the United States and location of prisons in more rural and white areas, the practice reduces “the political representation of others, especially urban residents and communities of color.”[x] Those who draw legislative boundaries can take prisons into consideration in order to give one side or another significant political advantage. “Shifting a significant proportion of these phantom constituents into districts that lean heavily toward the majority party, legislators can free up an equal number of citizens from those districts to be distributed… thereby increasing that party’s likelihood of picking up additional seats in the state legislature.”[xi] This redistribution of representation “has the effect of siphoning off political clout from the communities where most incarcerated people come from, and transferring it to districts where they are confined but cannot vote.”[xii]

Combine Prison Gerrymandering with Felon Disenfranchisement and we have a real representational crisis on our hands. Felon Disenfranchisement, long been used as a tool for political disenfranchisement especially during the Jim Crow era,[xiii] is the denial of voting rights to those who have been convicted of felony level crimes.[xiv] The Supreme Court recognizes this practice as constitutional as it held in Richardson v. Ramirez (1974) that “the deprivation of the right to vote for ex-offenders does not violate the Fourteenth Amendment’s Equal Protection Clause”[xv] because language in section two of the Amendment exempts states from the penalty of reduced representation in Congress when the right to vote is denied for the basis of “participation in rebellion, or other crime.”[xvi]

Today, “an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.”[xvii] Today, except for in Vermont and Maine, felons are completely banned from voting while incarcerated,[xviii] and “in many states they lose their right for long after they have served out their sentences and have been released into society.”[xix] Thirty-five states deny the formerly incarcerated the right to vote while on parole, eleven states currently allow former offenders to reapply for suffrage, while others permanently lose the right to vote.[xx] Internationally, this practice is an outlier. According to Jamie Fellner and Marc Mauer, “No other democratic country in the world denies as many people – in absolute or proportional terms – the right to vote because of felony convictions.”[xxi] That the United States strays so far from other developed countries in this regard is a reflection on what we feel is the goal of the American criminal justice system, punishment. Other developed nations have policies that would seem to reflect a belief in the ideals of rehabilitation and reintegration by allowing the incarcerated and formerly incarcerated to retain their right to participate in democracy. The United States, however, uses Felon Disenfranchisement as one of many punitive measures that ensures a prison sentence remains a permanent mark on one’s life.

It is essential to note these practices disproportionately affect African American and minority communities and can have significant political consequences on their representation. One cannot lose sight of the importance “of large numbers of African Americans losing the vote – the very right that took centuries of anguish, perseverance, and conflict to acquire – as a result of criminal records.”[xxii] The rate at which African American men are disenfranchised is seven times higher than the national average.[xxiii] “In Florida, Kentucky, and Virginia, over 20 percent of black adults are disenfranchised,”[xxiv] and in states where such laws are more restrictive, “up to 25 percent will never vote again.”[xxv] Despite comprising 12 percent of the general population, African Americans “constitute 44 percent of the population with felony records. As a result, while 2.3 percent of the overall population is disenfranchised, over 7 percent of the African American community cannot vote.”[xxvi] The effect of Felon Disenfranchisement on the political power of the African American community is devastating, but not new. One only need to refer to the powerful example of Jarvious Cotton’s family from Michelle Alexander’s The New Jim Crow to see this fact. Mr. Cotton is the fifth generation of men in his family who has not been able to exercise his right to vote because of the various targeted forms of voter suppression throughout American history.[xxvii] The means to achieving the same end of disempowering the African American and minority voters has evolved along with the framework used to repress those communities. Today, Prison Gerrymandering and Felon Disenfranchisement are that very mechanism.

There are, however, signs for hope on addressing both of these issues as people are starting to become aware. Federal and state governments are acting to address Prison Gerrymandering. While the Census Bureau will still improperly count prisoners based on where they are incarcerated in 2020, they have “agreed to publish detailed data on incarcerated populations much earlier than in the past” giving “state and local governments the information they need to avoid prison-based gerrymandering in time to use it in their redistricting processes.”[xxviii] At the state level, “Maryland and New York have both passed legislation to count incarcerated people at their homes for the current redistricting cycle, while California and Delaware have passed laws to fix the problem during the 2020 cycle.”[xxix] Residents from Anamosa, Iowa, eliminated the district system from their town government that allowed only two residents to elect Danny Young. Nationally, “Senator Ben Cardin and Representative John Conyers have introduced the ‘Democracy Restoration Act,’ which seeks to restore federal voting rights to 4.4 million former prisoners and maintain those rights for people on probation.”[xxx] These actions are certainly steps in the right direction. However, the realities of the criminal justice system through Prison Gerrymandering and Felon Disenfranchisement will continue to keep us from achieving the ideals of equal representation and universal suffrage until extensive reforms are enacted that eliminate both practices.


[i] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.

[ii] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 117.

[iii] “The Problem.” Prison Gerrymandering Project. Accessed November 26, 2018. https://www.prisonersofthecensus.org/impact.html.

[iv] Id.

[v] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.

[vi] Id, 41.

[vii] Id.

[viii] Id.

[ix] Id, 39.

[x] Id.

[xi] Jason P. Kelly, “The Strategic Use of Prisons in Partisan Gerrymandering,” Legislative Studies Quarterly 37, no. 1 (2012): 118.

[xii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 40.

[xiii] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 192.

[xiv] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016.

[xv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 133.

[xvi] Richardson v. Ramirez, 418 U.S. 24, 43 (1974).

[xvii] Christopher Uggen, Ryan Larson, and Sarah Shannon. “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, 2016.” The Sentencing Project. October 6, 2016. https://www.sentencingproject.org/publications/6-million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/#I. Overview.

[xviii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.

[xix] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 82.

[xx] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89.

[xxi] Id.

[xxii] Id, 134.

[xxiii] Jonah A. Siegel, “Felon Disenfranchisement and the Fight for Universal Suffrage,” Social Work 56, no. 1 (2011): 89

[xxiv] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.

[xxv] Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.

[xxvi] Marc Morjé Howard, Unusually Cruel: Prisons, Punishment, and the Real American Exceptionalism (New York: Oxford University Press, 2017), 134.

[xxvii]  Michelle Alexander, The New Jim Crow (New York, New York: The New Press, 2012), 1.

[xxviii] Leah Sakala, “Census Bureau Contributes to Prison-based Gerrymandering,” Race, Poverty & the Environment 18, no. 2, Autumn Awakening: From Civil Rights to Economic Justice (2011), 41.

[xxix] Id.

[xxx] Id.