CRYPTOCURRENCY: A FINANCIAL CAVEAT IN OUR LEGAL SYSTEM
Ridhi Hora
THE DISSOLVING WALL: SCOTUS’S NEW INTERPRETATION OF THE ESTABLISHMENT CLAUSE
Samantha Scott
CAN ICE EVADE SANCTUARY LAWS THROUGH DATA BROKER CONTRACTS?
Sophia Ricci
“IT’S REWIND TIME”: EDUCATIONAL GERRYMANDERING AND RACIAL SEGREGATION
Aphrodite Stamboulos
UNITED STATES V. VAELLO MADERO: THE SUPREME COURT’S WRONGFUL INTERPRETATION
Aoife Nurse
THE WILD WEST OF CRYPTOCURRENCY: THE SEC AND CFTC
Kathryn MacMillan
RUSSIA’S LEGAL FRAMEWORK FOR FOREIGN ANNEXATION: PAST AND PRESENT
Amy Herd
JUDGE, JURY, ROBOT EXECUTIONER: ARTIFICIAL INTELLIGENCE AND ALGORITHMS IN THE LEGAL SYSTEM
Aidan Hughes
THE FUTURE OF NATIVE AMERICA: A DISCUSSION OF HAALAND V. BRACKEEN
Editor-in-Chief
Danielle Barber
VOL. 6 2022-23
FALL 2020
undergradlawreview.blog.fordham.edu
LETTER FROM THE EDITOR-IN-CHIEF
June 19, 2023
Dear Reader:
It is our honor to introduce Volume VI of the Fordham Undergraduate Law Review (FULR). This edition marks the culmination of the efforts of ten exemplary members over the past academic year. As Co-Editors-in-Chief, we are continually impressed by our writers’ commitment to raising FULR’s standards, and this year’s group have continued this tradition of excellence.
FULR provides a unique opportunity for Fordham pre-law students to not only explore their interest in law but also to contribute their voices, outlooks, and well-founded opinions to the legal field. Over the course of this process, our Staff Writers and Senior Editors displayed remarkable dedication in the research, development, and revision of these legal arguments. These authors wrestled with complex legal issues for a diverse array of communities. They gave critical analysis to potential solutions, brought in unconventional perspectives, and addressed contemporary injustices.
We are particularly proud of the array of topics students chose to focus on for this issue. Members broadened their horizons to investigate foreign legal systems in the context of human rights and territorial sovereignty respectively. They also sought out solutions to injustices facing marginalized communities domestically. But perhaps what has been most remarkable about this issue is how writers engaged with rapid developments in the regulatory environment of artificial intelligence
We owe tremendous thanks to our fellow Editorial Board members, Ahan Dhar, Anthony Vu, Nicholas Wolf, Elizabeth Lebci, Nicholas Suit, Danielle Poole, and Olivia Lilley, for their dedication to and enthusiasm for FULR. We would also like to thank the countless faculty, adminis trative staff, and student organizations that enabled this volume’s publication. We owe special thanks to Dr. Robert Hume, our faculty advisor, and to Luis del Rosario, the Editor-in-Chief of Volume 91 of the Fordham Law Review, for their continued support. Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments.
Sincerely,
Jonathan Katz, Co-Editor-in-Chief, 2022-2023
Thomas Murray, Co-Editor-in-Chief, 2022-2023
A SLAPP IN THE FACE TO THE CONSTITUTION: FREE SPEECH VERSUS FRIVOLOUS LITIGATION
Jack Hayes ..................................................................................................... 1
CRYPTOCURRENCY: A FINANCIAL CAVEAT IN OUR LEGAL SYSTEM
Ridhi Hora 16
THE DISSOLVING WALL: THE SUPREME COURT’S NEW INTERPRETATION OF THE ESTABLISHMENT CLAUSE
Samantha Scott ............................................................................................. 30
CAN ICE EVADE SANCTUARY LAWS THROUGH CONTRACTS WITH DATA BROKER COMPANIES?
Sophia Ricci 46
“IT’S REWIND TIME”: EDUCATIONAL GERRYMANDERING AND RACIAL SEGREGATION
UNITED STATES V. VAELLO-MADERO: THE SUPREME COURT’S WRONGFUL INTERPRETATION THAT HAS COST PUERTO RICANS THE RIGHTS THEY DESERVE
Aoife Nurse 75
THE WILD WEST OF CRYPTOCURRENCY: THE SEC AND CFTC Kathryn MacMillan .................................................................................... 102
RUSSIA’S LEGAL FRAMEWORK FOR FOREIGN ANNEXATION: PAST AND PRESENT
Amy Herd 126
TABLE OF CONTENTS
JUDGE, JURY, ROBOT EXECUTIONER: ARTIFICIAL INTELLIGENCE AND ALGORITHMS IN THE LEGAL SYSTEM
THE FUTURE OF NATIVE AMERICA: A DISCUSSION OF INDIAN CHILD WELFARE AND TRIBAL SOVEREIGNTY IN HAALAND V. BRACKEEN
Danielle Barber 161
MASTHEAD
VOL 6 2022-23 NOS 1–2
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MISSION
The Fordham Undergraduate Law Review (FULR) is a studentrun, scholarly journal at the undergraduate level for Fordham University and the legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as they relate to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to pre -law networking events with distinguished Fordham alumni. Learn more about opportunities to join our team by emailing fulr@fordham.edu.
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Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this Volume would not have been possible.
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Please note that, owing to its recent formation, the Advisory Board has reviewed Notes from Volume VI, Issue 2 only. Authors exercised final control over any proposed revisions.
CAPPELLO, J.D.
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Volume VI, Issues I & II, 2022–23
undergradlawreview.blog.fordham.edu
Fordham Undergraduate Law Review
VOLUME VI, ISSUE I (Fall 2022)
A SLAPP IN THE FACE TO THE CONSTITUTION: FREE SPEECH VERSUS FRIVOLOUS LITIGATION
Jack Hayes*
The First Amendment explicitly protects both the right to free speech and petitioning the government for the redress of grievances. These two protections come at odds when wealthy or powerful individuals use the court as a means to intimidate and silence their critics. Specifically, these powerful individuals will file suits in which they do not necessarily intend to prevail. Rather, they simply intend to draw out the litigation process as a means of draining a defendant’s finances, thereby unconstitutional ly discouraging them from criticizing the powerful figure. This phenomenon has become known as a strategic lawsuit against public participation, or SLAPP. These suits are troubling, for they chill public expression and free speech while also crowding out the courts of their capability of addressing good-faith disputes. Furthermore, these suits threaten the legitimacy of the courts in both the legal sphere and in public opinion. Protections do exist, such as Rule 11 in the Federal Rules of Civil Procedure and the Supreme Court’s Noerr-Pennington doctrine, but they are nonetheless limited; consequently, these frivolous suits prevail. Discourse prompted by recent suits has led some to advocate for more widespread passage of “anti -SLAPP” legislation, in which pl aintiffs lodging these suits would be punished for doing so. Through the examination of notable cases, case law, and existing protections, this Note argues that existing statutes are deficient in their protection against frivolous SLAPP suits and that the proposed Uniform Public Expression Protection Act (UPEPA) is an effective means of protecting the public and the courts and is, therefore, the appropriate framework for uniform anti-SLAPP statutes.
* B.A. Candidate for Political Science, Fordham College at Lincoln Center, Class of 2025. It has been an honor to be a member of the Fordham Undergraduate Law Review as a Staff Writer. I am immensely grateful for the Editorial Board’s assistance and support in the process of writing this Note, as well as my friends and family who have always been a source of encouragement and advice.
I. INTRODUCTION
In response to a defamation claim brought by coal tycoon Robert Murray against satirist John Oliver, the American Civil Liberties Union told him in Court that “you can’t sue people for being mean to you, Bob.” 1 Murray had originally brought the suit against Oliver for a segment he ran on his show Last Week Tonight entitled “Coal,” in which he criticized the practices of his energy companies in defiance of a cease-and-desist letter Murray sent him.2 The case was ultimately dismissed by the court, though appealed to the West Virginia Supreme Court, where it was later withdrawn after all of the justices either resigned or were impeached following a corruption scandal and Murray’s organizations filed for bankruptcy. The suit, nonetheless, had a lingering effect on Last Week Tonight, costing the program over $200,000 in legal fees and tripling the show’s libel insurance premiums. 3
1 Proposed Amended Brief Amicus Curiae of the American Civil Liberties Union of West Virginia Foundation in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order and in Support of Dismissal and Rule 11 Sanctions at 5, Marshall County Coal Co. v. John Oliver, No. 17-cv-00099 (N.D. W. Va. Aug. 2, 2017).
2 See Complaint at 8-9, Marshall County Coal Co. v. John Oliver, No. 17-C-124 (W. Va. Cir. Ct. June 21, 2017).
3 Melissa Locker, John Oliver Picks a New Fight With Coal Boss He Called ‘a Geriatric Dr. Evil’ on Last Week Tonight , TIME (Nov. 11, 2019), bit.ly/3G0KCPq.
The practices of his energy companies in defiance of a cease -and-desist letter Murray sent him.4 The case was ultimately dismissed by the court, though appealed to the West Virginia Supreme Court, where it was later withdrawn after all of the justices either resigned or were impeached following a corruption scandal and Murray’s organizations filed for bankruptcy. The suit, nonetheless, had a lingering effect on Last Week Tonight, costing the program over $200,000 in legal fees and tripling the show’s libel insurance premiums.
Despite not proving victorious in the courtroom, Oliver argues that Murray still achieved his ultimate goal: to strain the defendants’ finances. 5 He furthers that “[t]he whole point [was] to put the defendant through a difficult, painful experience” in an effort to silence journalists and citizen activists.6 Oliver characterizes this suit as a “SLAPP suit,” that is, a “strategic lawsuit against public participation.”7
The First Amendment of the Constitution explicitly affords citizens the right “to petition the government for a redress of grievances.” 8 As a means of exercising this right, Article III establishes the federal judicial power upon “one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”9 Powerful individuals such as Murray have found the courts to be the ideal place in which they can attempt to silence their critics. Through the use of SLAPP suits, plaintiffs use the legal process to drain defendants of their financial resources in an effort to scare their critics out of public participation.10 This raises a critical constitutional dilemma: the courts can be viewed as providing a venue for individuals to silence their opponents. As a result, over the last few decades, criticism of SLAPP suits has been on the rise among legal circles. The term SLAPP has recently
4 See Complaint at 8-9, Marshall County Coal Co. v. John Oliver, No. 17 -C-124 (W. Va. Cir. Ct. June 21, 2017).
5 Id
6 Id
7 Id
8 U.S. CONST. amend. I.
9 U.S. CONST art. III, § 1.
10 Laura Lee Prather & Justice Jane Bland, Bullies Beware: Safeguarding Constitutional Rights Through Anti-SLAPP in Texas, 47 TEX TECH L. REV. 725, 730-731 (2015).
entered the public lexicon, largely due to high-profile suits involving celebrities or politicians. For example, a series of four lawsuits lodged by former Representative of California Devin Nunes against various critics, 11 as well as a defamation lawsuit by actor Johnny Depp against his ex -wife Amber Heard,12 have been viewed in public opinion as suppressive of public participation and free speech; they have therefore amplified public discourse surrounding SLAPP suits. The public has advocated for more widespread passage of “anti-SLAPP” laws, which can punish a plaintiff for engaging in such frivolous lawsuits. Under Texas Law, a frivolous claim can be defined as a motion or pleading that is groundless, brought in bad faith, and meant to intimidate or harass other parties. 13 Many states have enacted some form of an anti-SLAPP law over the years. Unfortunately, individual states can only go so far as to protect against SLAPPs. Eighteen states do not have an antiSLAPP law on the books, nor does the federal government making it relatively simple for a SLAPP to prevail even in light of anti-SLAPP laws.14 This Note will outline the reasoning for and dangers of SLAPP suits, as well as document recent cases that have stimulated discussion about their dangers. This Note will then evaluate the need for a unified response to these suits, by examining existing case law and state law to determine faults in existing statutes. At the same time, this Note will assess the protection of good-faith complaints brought in light of state anti-SLAPP laws and examine the necessary steps to protect the right to petition as outlined in the First Amendment. Finally, this Note will examine the proposed Uniform Public Expression Protection Act to ultimately argue that it serves as an effective means of balancing the protection of both the freedom of speech and the right to petition.
11 Mike Masnick, Devin Nunes Drops SLAPP Case He Lost Against Guy He Claims Is The Husband Of The Satirical Tweeting Cow Who Mocks Him , NEWSTEX (2022), https://bit.ly/3SRKjJT.
12 Emma Nolan, Johnny Depp and Amber Heard Trial: Anti -SLAPP Provision Explained , NEWSWEEK (2022), https://bit.ly/3SJliB6
13 Tex. R. Civ. P. 13.
14 In re Gawker Media LLC, 571 B.R. 612, 628 (Bankr. S.D.N.Y. 2017).
II. STRATEGIC LAWSUITS AGAINST PUBLIC PARTICIPATION
A. Overview of SLAPP Lawsuits
At the time of their early rise to prominence in legal discourse, SLAPP suits could be identified by a relatively objective set of characteristics. George W. Pring proposed four fundamental criteria, each necessary in order for a suit to be considered a SLAPP suit: “(1) a civil complaint or counterclaim (for monetary damages and/or injunction), (2) filed against nongovernmental individuals and/or groups, (3) because of their communications to a government body, official, or the electorate, (4) on an issue of some public interest or concern.”15 All of these elements form a suit intended to silence or punish a party exercising their right to free speech or to petition the government.16 To do so, a plaintiff does not necessarily need to prevail in their suit, nor does the case even need to go to trial. Rather, the plaintiff’s goal is to simply draw out proceedings in order to drain the defendants’ funds in an effort to scare them out of taking further public action.17 Problematically, as is the case with most suits, the plaintiff can add additional defendants at the drop of a hat, serving as an effective means of chilling civilian activism.18 This ease at which the wealthy and powerful can silence their critics through the use of the SLAPP suit serves as a two-pronged attack on the core values of American society, as it has a negative effect on the fundamental rights of free expression and access to government.19 In fact, the mere threat of a suit, or the financial burden imposed by prolonged legal proceedings, can be enough to discourage criticism of a powerful individual or entity. Justice Nicholas Colabella of the New York Supreme Court a rgued
15 George W. Pring, SLAPPs: Strategic Lawsuits Against Public Participation , 7 PACE ENV’T L. REV. 3, 8 (1989).
16 Shannon Hartzler, Protecting Informed Public Participation: Anti -SLAPP Law and the Media Defendant, 41 VAL U. L. REV. 1235, 1236 (2007).
17 Prather & Bland, supra note 11, at 730-731.
18 Jerome I. Braun, Increasing SLAPP Protection: Unburdening the Right of Petition in California, 32 U.C. DAVIS L. REV. 965, 972 (1999).
19 Penelope Canan & George W. Pring, SLAPPs: Getting Sued for Speaking Out 219 (1996).
that by intimidating individuals to a point where they will remain silent, SLAPP suits serve as the single greatest threat towards the benefits of the free press and relatively neutral government prescribed by the Constitution, “[s]hort of a gun to the head.”20
B. Notable Cases
SLAPP suits primarily occur as a result of attempts by celebrities to silence or otherwise curtail free speech relating to them. One of the most famous examples of a celebrity SLAPP suit is a complaint lodged against photographer Kenneth Adelman by singer and actress Barbra Streisand in 2003. Adelman had been taking part in the California Coastal Records Project, in which tens of thousands of photographs were taken via helicopter along the California coast to document coastal erosion and pressure lawmakers to take action to combat climate change.21 In one of the over 12,000 photos, dubbed image 3850, Streisand’s Malibu home was visible.22 Following the publication of the image, Streisand sued Adelman for invasion of privacy, despite the image only having been downloaded six times, two of those times being by Streisand’s attorneys. 23 Following the filing of the suit, traffic to the California Coastal Records Project skyrocketed, as did downloads of image 3850.24 The court applied California’s anti-SLAPP law, one of the strictest in the country at the time, to the case, finding that (a) documentation of coastal erosion, specifically through the photography of the coastline, constituted a matter of public interest,25 and (b) that Streisand could not reasonably conclude that the images were taken in an attempt to invade
20 Gordon v. Marrone, 590 N.Y.S.2d 649, 656 (Sup. Ct. 1992).
21 Statement of Decision at 4, Streisand v. Adelman, No. SC 077 257 (Cal. Sup. Ct. Dec. 31, 2003).
22 Id. at 5.
23 Id. at 7.
24 This phenomenon, in which an attempt to suppress information brings more attention to it, has become known as the “Streisand effect” as a result.
25 In fact, Streisand herself had been an outspoken advocate on the environmental issues which Adelman had been attempting to document. Id. at 11-12.
her privacy.26 The court labeled Streisand’s claim a SLAPP suit and required her to pay Adelman’s $177,000 in legal fees. 27
A similar prominent SLAPP suit is Gardner v. Martino (2005), in which radio talk show host Tom Martino was sued by the owners of an Oregon personal watercraft dealer. Martino, a consumer advocate famous for publicly investigating customer complaints, aired a segment in which he in vestigated problems a customer was having with a watercraft she purchased from the Oregon dealer.28 Specifically, she expressed frustration with the attempts at repair and buyback of the watercraft she was promised. In response, Martino exclaimed that “they're just lying to you.”29 In a later segment, Martino published the phone numbers of both the dealership and the dealership’s parent company.30 The dealership’s owners alleged that Martino’s segment led to an influx of angry calls and threats to the business, leading them to sue Martino for defamation and invasion of privacy. 31 The federal court applied Oregon’s anti-SLAPP statute modeled on California’s statute to the claim, finding that (a) Martino was speaking on an issue of public interest on his radio show,32 and (b) his statements were his opinion and were protected under the First Amendment.33 Famously, the court found that the average person would not reasonably expect objective facts from a radio talk show host, and viewed Martino as a comedian.34 As a result, the court dismissed the dealership’s claim under Oregon’s anti-SLAPP statute.35
26 Id. at 37.
27 Ruling on Submitted Matters: Motion to Tax Costs and Motions for Attorneys’ Fees at 10-11, Streisand v. Adelman, No. SC 077 257 (Cal. Sup. Ct. May 10, 2004).
28 Findings & Recommendation at 3, Gardner v. Martino, No. CV-05-769-HU (D. Or. Sept. 19, 2005).
29 Id.
30 Id. at 4.
31 Id. at 4-5.
32 Id. at 20.
33 Id. at 31.
34 Id. at 28.
35 Id. at 36.
C. Dangers to the Court
Currently, thirty-two states have enacted some form of law to curb suits against public participation.36 While effective within some of those states, eighteen other states, as well as the federal government, still do not have any such law on the books. This unfortunately means that when a plaintiff seeks to silence a critic, they simply must move to one of the jurisdictions in which an anti-SLAPP law is not present a practice known as forum shopping.37 The vast majority of recent notable suits against critics have taken place in jurisdictions with little-to-no anti-SLAPP laws.38 To mark this, the Institute for Free Speech (IFS) has created an “Anti -SLAPP report card”39 which evaluates the efficacy of existing anti -SLAPP laws. For example, all of the suits filed by Congressman Devin Nunes were filed in either Virginia, given a D- rating by the IFS, or Iowa, given an F rating, despite him not living in either of those states. 40 Similarly, Johnny Depp’s suit was filed in Virginia. These states were given their respective ratings due to their deficient statutory anti-SLAPP procedures. Specifically, states that receive such a low rating by the IFS lack procedures that suspend court proceedings upon an anti -SLAPP motion. Moreover, they fail to place a sufficient burden of proof on the plaintiff in order to defeat the anti-SLAPP motion, provide a right to appeal the ruling, and award legal fees to the defendant.41
Since the states and the federal government have not taken a united stance against SLAPPs, existing efforts have not alleviated the SLAPP problem. Rather, through forum shopping, these suits can simply be funneled into jurisdictions that do not have existing anti-SLAPP statutes.42 This
36 Matthew D. Bunker & Emily Erickson, The Jurisprudence of Public Concern in AntiSLAPP Law: Shifting Boundaries in State Statutory Protection of Free Expression , 44 HASTINGS COMM. & ENT. L. J. 133, 138 (2022).
37 Id
38 Dan Greenberg & David Keating, Anti -SLAPP Statutes: A Report Card, INSTITUTE FOR FREE SPEECH, https://bit.ly/3D1sjGG.
39 Id.
40 Id.
41 Id.
42 Gawker Media LLC, 571 B.R. at 628.
phenomenon creates two key problems for the courts: firstly, it forces the court to take on a larger number of these SLAPP suits, which crowds out their availability to rule on other pressing claims that may have otherwise taken precedence over them. Secondly, the influx of suits filed in these courts’ jurisdictions often awards them a bad reputation in the community and risk of becoming known as “defamation courts” or “SLAPP courts ” synonymous with celebrities and other influential individuals engaging in frivolous suits. Through the introduction of a unified anti -SLAPP statute, courts have the capability of protecting their reputation as well as th eir accessibility to good faith claims that need to be heard through the restriction of claims made in bad faith.
III. THE REMEDY: A UNIFORM ANTI-SLAPP LAW
A. Existing Protections
Rule 11 of the Federal Rules of Civil Procedure provides the primary protection against SLAPP suits.43 Rule 11 prohibits an attorney from bringing a pleading to a court that is “presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”44 Should Rule 11 be violated, sanctions can be brought against an attorney for bringing the pleading to the court, but not against the party.45 These rules, while only applicable to federal courts, can be beneficial in safeguarding against wasting the court’s time, but fall short of preventing the undue burden against critics of influential individuals who were already dragged into court for exercising their right to free speech. The U.S. Supreme Court has previously addressed issues surrounding frivolous litigation which, through the principle of stare decisis, that is, the judicial branch’s practice of using previous decisions to inform future
43 James W. Devine, Rule 11’s Big-Mouthed Little Brother: How a Federal Anti -SLAPP Statute Would Reproduce Rule 11’s Growing Pains , 9 AVE MARIA L. REV. 367, 370 (2011).
44 Fed. R. Civ. P. 11(b)(1).
45 See Fed. R. Civ. P. 11(c).
decisions, has given lower courts li mited authority to address SLAPPs. The predominant precedent is the Noerr–Pennington doctrine, established in both Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) and United Mine Workers v. Pennington (1965). In Noerr, the court held that “no violation of the [Sherman Antitrust] Act can be predicated upon mere attempts to influence the passage or enforcement of laws.”46 Similarly, in Pennington, the Court found that “efforts to influence public officials do not violate the antitrust laws,” even if those efforts adversely influence competition.47 The Court has declined to extrapolate Noerr-Pennington protections to contexts other than antitrust litigation, but various lower courts have applied the protections provided by Noerr-Pennington to the First Amendment with the understanding that one is guaranteed the “right to attempt to enlist the government on their side of [a] dispute.”48 The findings in Noerr and Pennington have therefore provided protections to those using the government for redress of grievances, as prescribed by the First Amendment, in an effort to protect the public’s interest in informing those charged with law enforcement of potential violations.49 The relevance to “sham” litigation arises in the exceptions t o this doctrine. These exceptions were clarified in California Motor Transport Co. v. Trucking Unlimited (1972), with the Court holding that litigation meant “to discourage and ultimately to prevent [individuals] from invoking” the “processes of the administrative agencies and courts” would “fall within the exception to Noerr” and thereby not be immunized from antitrust prosecution. 50 At the time, the precedent set by the Court was one of the strongest stances against sham litigation. Ambiguity still existed, however, in what a “sham” claim was, leading the Court to further clarify the exception to Noerr in City of Columbia v. Omni Outdoor Advertising (1991). In the case, the Court defines
46 Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 135 (1961).
47 United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965).
48 Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 650 (7th Cir. 1983).
49 Aaron R. Gary, First Amendment Petition Clause Immunity from Tort Suits: In Search of a Consistent Doctrinal Framework , 33 IDAHO L. REV. 67, 100-101 (1996).
50 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 518 (1972) (Stewart & Brennan, JJ., concurring); California Motor Transport Co. , 404 U.S. at 512.
a “sham” as a situation in which one uses the process of litigation itself as an anti-competitive weapon as opposed to seeking a favorable outcome by its conclusion.51 This phenomenon is nearly identical to SLAPP suits, where a plaintiff does not necessarily expect to prevail in their suit but rather hopes to draw out the process as a means of suppressing public participation and free speech. This determination by the Court, therefore, allows courts to dismiss frivolous litigation and deter further suits from coming to the courts.
The Court once again addressed frivolous lit igation in Christiansburg Garment Co. v. Equal Employment Opportunity Commission (1978), in which it looked beyond the constraints of antitrust law and addressed the concern of legal fees, a large reason ill -intentioned plaintiffs bring SLAPPs against critics in the first place. In Christiansburg, the Court held that an unsuccessful plaintiff in a civil rights case is not obligated to pay the defendant’s legal fees unless the claim is found to be “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”52 The precedent set in Christiansburg seems to mirror statutes that award legal fees to defendants who fall victim to SLAPP suits, as Kenneth Adelman was under the California anti -SLAPP statute.53 This precedent provides limited anti-SLAPP protections to jurisdictions that do not have a statute on the books, yet still only extends to civil rights cases, leaving room open for SLAPP suits to fly under the radar without punishment associated with them.
B. Protection of Good-Faith Claims
One fundamental element of the various measures against SLAPP suits is the protection of claims brought forth in good faith: that is, claims not intending to weaponize the litigation process and not bringing forth questions
51 City of Columbia v. Omni Outdoor Advertising, 499 U.S. 365, 380 (1991).
52 Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422 (1978).
53 Ruling on Submitted Matters: Motion to Tax Costs and Motions for Attorneys’ Fees, supra note 28
of fact.54 For example, the Noerr–Pennington doctrine does not consider whether a claim concerns a public issue, as it solely examines whether a claim was brought in good faith.55 This bodes well for a defendant, as it allows for a broad interpretation that does not question the content of communications. Rather, it merely questions the plaintiff’s intentions. On the other hand, it is problematic for the plaintiff, as truly defamatory speech could be dismissed under the doctrine since the mere perception of a plaintiff’s intentions with a suit can invoke Noerr protections and dismiss the suit. Thus, lawmakers walk a fine line between protecting access to the court and protecting free speech, as both are protected by the First Amendment.
State anti-SLAPP statutes must therefore be drafted meticulously to balance these two protections to prevent shutting out good-faith claims while also protecting the right to free speech. 56 The absence of these protections risks damaging public discourse, as it blurs the lin es between good-faith and frivolous claims, as well as dismissing disputes over clear questions of fact. 57 These statutes risk moving a plaintiff’s burden of proof to an unattainable level, which would result in individuals that have legitimately experienced damages being left unable to get the relief they need from the court. 58 Therefore, steps must be taken to ensure that the burden of proof is not too high on the responding party, but also not too low that SLAPPs slip through the cracks and pollute the courts. In Minnesota, for example, a party responding to a SLAPP motion carries the burden of proving their cause of action falls within the limits of the anti -SLAPP law and that their cause is likely to prevail.59 In this case, the moving party carries no burden of proof and can simply file at will and hope the responding party’s explanation is not satisfactory to a judge; this risks turning the anti-SLAPP motion into another routine motion that makes claims seemingly unwinnable in certain
54 Devine, supra note 42, at 380.
55 Jeremiah A. Ho, I’ll Huff and I’ll Puff But Then You’ll Blow My Case Away: Dealing With Dismissed and Bad -Faith Defendants Under California’s Anti -SLAPP Statute, 30 WHITTIER L. REV 533, 618 (2009).
56 See Palazzo v. Alves, 944 A.2d 144, 150 (R.I. 2008).
57 Devine, supra note 43, at 380.
58 See Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 771 (1985).
59 See Minn. Stat. § 554.02 (2022).
jurisdictions. The burden of proof should be balanced in these circumstances to protect the procedural fairness of the courts. Ultimately, regardless of what path a state chooses to take to implement these protections, lawmakers w alk a fine line between the protection of free speech and the right to petition, and must proceed accordingly when crafting legislation.
C. Proposed Uniform Protections The Uniform Public Expression Protection Act
Proposed statutes, such as the Uniform Public Expression Protection Act (UPEPA), have attempted to balance protections of access to the court with freedom of speech by placing the burden of proof on both parties in an antiSLAPP motion.60 The UPEPA is the proposed statute that has gained the most traction in state legislatures, created by the Uniform Law Commission (ULC) in 2020.61 Currently, the bill has been enacted in Hawaii, Kentucky, and Washington state, while also being proposed in five other states. The Act establishes three phases, commencing with the filing of the SLAPP motion and ending with the potential awarding of legal fees.
Phase one of the motion process commences within sixty days of the initial complaint or other cause of action. This phase determines if the action is within the Act’s scope. The Act protects:
[C]ommunication in a legislative, executive, judicial, administrative, or other governmental proceeding, . . . communication on an issue under consideration or review in a . . . governmental proceeding, . . . [or the] exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association…on a matter of public concern. 62
If the action is not within the scope of the Act, the moving party loses the motion, with the ability to appeal the decision. Should the action be within
60 Kaitlin Wolff, Public Expression Protection Act , Uniform Law Commission (2020), https://bit.ly/45cW3fS.
61 Id.
62 WASH. REV. CODE § 4.105.010 (2021).
the scope, then the motion process moves to the second phase. The established scope in the proposed statute fills the gaps left in the NoerrPennington doctrine, allowing for a two-pronged examination of the cause of action that considers both the content of the disputed communications as well as the intentions behind that cause of action. Furthermore, the statute cements these protections into law, so a defendant does not have to hope that a judge will extrapolate Noerr protections to the First Amendment.
Phase two involves the responding party demonstrating that their cause of action states a prima facie case, that is, they must provide sufficient evidence to render a favorable verdict absent rebuttal. Should the responding party not be able to establish a prima facie case, then the court grants the motion and the cause of action would be dismissed. If the responding party does establish a prima facie case, then the motion moves to phase three of the procedure.
Phase three places the burden of proof back on the moving party to show that “the responding party failed to state a [cause of action] upon which relief can be granted” or that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the [cause of action] or part of the [cause of action].” 63 If the moving party can meet this burden of proof, then they win the motion and the cause of action is dismissed with prejudice.64 If the moving party cannot meet this burden, however, then they lose the motion and may appeal immediately.65 This element is absent from other state anti-SLAPP laws, such as in Minnesota and California, and discourages indiscriminate use of the motion by requiring the party to interact with the responding party’s claims, therefore leveling the playing field in regard to the motion.
The prevailing party on the motion would generally be awarded “court costs, reasonable attorneys' fees, and reasonable litigation expenses related to the motion” under the proposed Act. 66 This Act is promising in that the burden of proof is not solely on the responding party, that is, the moving party
63 Id. § 4.105.060.
64 Id.
65 Id. § 4.105.080.
66 Id. § 4.105.090.
has to defend their motion to the court. This prevents the anti-SLAPP motion from being indiscriminately thrown at all causes of action and becoming a standard motion in every single case. The Act also requires thought to be put into the motion, thereby saving the court time and resources that would have otherwise been spent reviewing it. This, therefore, provides necessary protection to both the court and the responding party.
The UPEPA provides the best means to address the concerns raised by SLAPPs in the present. Under existing statutes, certain jurisdictions risk allowing potentially harmful suits to fall through the cracks; this necessitates uniformity among anti-SLAPP statutes for even one jurisdiction having the perception of a weaker anti-SLAPP law proves detrimental to the purpose of the anti-SLAPP laws of all other jurisdictions. The UPEPA ensures that, while still protecting against SLAPP suits, legitimate claims are not dismissed in the name of protection against SLAPP suits. The prop osed statute serves as the most effective wayto protect against the chilling effect of anti-SLAPP suits while continuing to allow access to the court as afforded by the First Amendment.
IV. CONCLUSION
The persistence of SLAPP suits continues to threaten the public as well as the courts. Even in light of existing anti -SLAPP statutes in select states, certain SLAPP suits can still pollute the court system. By virtue of the government providing a venue for the intimidation of the critics of powerful or otherwise influential individuals into silence, these lawsuits restrict the freedom of speech protected by the First Amendment of the Constitution. Furthermore, these suits crowd out the court of claims made in good faith by diverting their attention away from said claims and addressing these frivolous suits, thereby restricting access to the court and delaying the resolution of claims in genuine need of judicial relief. These lawsuits threaten the legitimacy of the court by nature of the suits which predominate the court’s attention. The disunified approach to addressing SLAPPs is insufficient in protecting the First Amendment rights of critics and necessitates changes to protect both defendants and the court.
Strategic lawsuits against public participation can prove detrimental to the legitimacy of the court and the rights protected by the Constitution. They scare individuals out of critiquing influential figures and diminish the First Amendment’s protection of the freedom of speech. The current manner of responding to SLAPP suits is problematic and warrants a united response through a modified statute, such as the UPEPA, while taking caution to continue to protect the right to petition and not shut out access to the court. Failing to do so would be a slap in the face to some of the most fundamental rights protected by the Constitution.
This Note was edited by Samantha Scott
CRYPTOCURRENCY:
A FINANCIAL CAVEAT IN OUR LEGAL SYSTEM
Ridhi Hora*67
Cryptocurrency is a digital, peer-to-peer currency with no traditional financial institutions involved in its transactions. The network is completely decentralized with no need for intermediaries because all transactions can be performed directly by the users; its main appeal is that traders’ identities are encrypted, and no personal information is transferred. This Note first examines the rise of virtual currencies and contextualizes the process of acquiring and storing cryptocurrency by means of its underlying technology. Then, this Note discusses the regulatory challenge at hand, addressing the concern about the ability of the federal government to regulate this decentralized currency. This Note further argues that the nature of virtual currency transactions paves the way for financial crimes and thus presents a unique problem to the government in terms of jurisdiction. Section IV of this Note examines the regulations set in 2015 by the New York State Department of Financial Services, some of the country’s most stringent virtual currency regulations. This Note concludes that the New York State virtual currency laws, particularly BitLicense, are an ideal model for further regulation of cryptocurrencies.
* B.S. candidate for Global Business with concentrations in Global Finance and Business Economics and a minor in Business Law and Ethics at Fordham University’s Gabelli Sch ool of Business, Class of 2025. I would like to give particular thanks to Professor James Teague for his invaluable feedback on the content of this Note. Thank you also to the FULR Editorial Board, and my friends and family for their support and guidance t hroughout the semester.
I. INTRODUCTION
Technological advancements have immense impacts on society, and most recently in the form of virtual currencies they have infiltrated global financial markets. Cryptocurrency (“Crypto”) is a virtual currency held within the private blockchain network, a canonical record of every Bitcoin, every Bitcoin transaction, and every Bitcoin address associated with a quantity of Bitcoin.1 For the purposes of this Note, the terms ‘cryptocurrency,’ and ‘Bitcoin’ will be used interchangeably. With the inception of this nearly decade-old form of transaction, the United States government lost control of the regulation of virtual currency due to its decentralized nature. Cryptocurrency’s underlying blockchain technology does not allow governmental authority in terms of transactions, and is thus appealing to investors with criminal intentions. As a result, countries such as China, Egypt, and Algeria have banned the purchase and sale of virtual currencies.2 Cryptocurrency is notorious for being an anonymous vehicle for transmitting currency involved in illegal financial activities, including but not limited to: Money laundering, business attacks, corporate espionage, or highyield investment schemes.3
With technology’s groundbreaking advancements, the question is raised of whether current laws are keeping up with the evolution of digital
1 Winklevoss Bitcoin Tr., Amendment No. 9 to Form S -1 (Form S-1), at 8 (Feb. 8, 2017), https://www.sec.gov/Archives/edgar/data/1579346/000119312517034708/d296375ds1a.ht
m [Winklevoss S-1 Amendment No. 9].
2 Bitcoin ban: These are the countries where crypto is restricted or illegal , EURONEWSENGLISH VERSION (Aug. 25, 2022), https://advance -lexiscom.avoserv2.library.fordham.edu/api/document?collection=news&id=urn:contentItem:66 7J-57B1-JB35-Y221-00000-00&context=1516831.
3 Lawrence J. Trautman, Bitcoin, Virtual Currencies, and the Struggle of Law and Regulation to Keep Pace , 102 MARQ. L. REV. 447, 468 (2018).
currencies and if there is a need for further regulations to prevent the myriad of methods criminals use to commit financial crimes. This Note will examine the rise of virtual currencies and contextualize the process of acquiring and storing cryptocurrency by means of its underlying technology. This Note will then argue that the decentralized nature of virtual currency transactions enables financial crimes and thus presents a unique problem to the federal government regarding jurisdiction. As such, this Note will explore the idea of using New York State virtual currency laws, with a particular emphasis on BitLicense, as a model for further regulation of cryptocurrencies.
II. THE RISE OF VIRTUAL CURRENCIES
The U.S. has one of the greatest capital markets, in part because investors have comparatively more faith in the U.S. dollar than in foreign currencies. Yet, with an increasing number of investors accessing the cryptocurrency market, it has become more critical than ever to dedicate more resources to protect our capital markets.4 The registration statement for the Winklevoss Bitcoin Trust an investment company that provides investment participation in the Bitcoins market through investment in securities5 Amendment No. 9 states that:
Bitcoin is a digital asset that is not issued by any government, bank, or central organization. Bitcoin is a digital asset based on the decentralized, open-source protocol of the peer -to-peer Bitcoin computer network (the “Bitcoin Network” or “Bitcoin”) that hosts the decentralized public transaction ledger, known as the “Blockchain,” on which all Bitcoin is recorded.6
4 Press Release: SEC Nearly Doubles Size of Enforcement’s Crypto Assets and Cyber Unit , U.S. SECURITIES AND EXCHANGE COMMISSION (May 3, 2022), https://www.sec.gov/news/press-release/2022-78#.
6 Winklevoss S-1 Amendment No. 9, supra note 1, at 8.
Cryptocurrency markets have flourished in recent years and are now one of the most appealing markets to investors, primarily because it furnishes specific options that are not available with fiat currency money that has no intrinsic value but is still made legal by a government order.7 For example, virtual currency can enable real -time and accurate revenue-sharing, especially for cross-border transactions, while enhancing transparency to facilitate back-office reconciliation.8 Although it is appealing to invest in cryptocurrency, the market does not come without risks. Dozens of cases have been brought against those seeking to take advantage of investors in cryptocurrency markets through the Securities and Exchange Commission’s Division of Enforcement’s Crypto Assets and Cyber Unit.9
A. History of Cryptocurrency
Bitcoin is the original form of cryptocurrency that uses cryptography which are secure communication techniques that allow only the sender and intended recipient of a message to view its contents to secure its system.10 Bitcoin’s founder, Satoshi Nakamoto who operates under this pseudonym created the decentralized virtual currency system with the intention of facilitating more secure financial transactions. 11 Bitcoin created a solution posed by the problems of fiat currencies, m ainly being (1) they could not effectively deal with fraud and (2) financial transactions’ reversible
7 Tim Vipond, Fiat Money, CORPORATE FINANCE INSTITUTE (Jan. 26, 2022), https://corporatefinanceinstitute.com/resources/economics/fiat -money-currency/.
8 The Use of Cryptocurrency in Business, DELOITTE UNITED STATES (Oct. 18, 2022), https://www2.deloitte.com/us/en/pages/audit/articles/corporates -using-crypto.html.
9 Press Release: SEC Nearly Doubles Size of Enforcement’s Crypto Assets and Cyber Unit , supra note 4
10 Seth Shobhit, Explaining the Crypto in Cryptocurre ncy, INVESTOPEDIA (May 15, 2022), https://www.investopedia.com/tech/explaining -crypto-cryptocurrency. (defining the prefix ‘crypto’ and explaining that “[c]ryptography is the mathematical and computational practice of encoding and decoding data”).
11 Simon Barber et al., Bitter to Better How to Make Bitcoin a Better Currency (2012), http://crypto.stanford.edu/~xb/fc12/bitcoin.pdf.
nature is a disadvantage to merchants. 12 Relying on a cryptographic system rather than humans and financial intermediaries was, in Nakamoto’s opinion, a more secure way to process electronic payments. 13 Despite what may have appeared as a seamless way to process electronic payments, the Financial Crimes Enforcement Network (FinCEN), a division of the U.S. Department of the Treasury, defines virtual currency as “those currencies that operate like a currency in some environments, but does not have legal tender status in any jurisdiction.”14 While they can be used in the economy in lieu of fiat money, the fact remains that virtual currencies can only be used depending on general acceptability in voluntary transactions because they lack legal status.
B. Acquiring and Storing Cryptocurrencies
As part of the first step before purchasing cryptocurrencies, users decide what exchange they will use. A cryptocurrency exchange is a platform where buyers and sellers meet to trade.15 These exchanges often come with low fees but complex interfaces with multiple trade types and advanced performance charts.16 Some of the most common exchanges include Coinbase, Gemini, and Binance.US. Crypocurrency acquisitioncannot begin until there are sufficient funds in an account which can be deposited by linking a bank account, authorizing a wire transfer, or making a payment using a credit or debit card.17 What should be noted, however, is that depositing money from a credit card can be extremely risky: Because credit card companies process crypto transactions as cash advances, they are subject to higher interest rates
12 Id. (see comments on how merchants have to be cautious of customers and fear the risk of having their transactions reversed due to fraud.).
13 Id
14 U.S. GOV’T ACCOUNTABILITY OFF., GAO-13-516, VIRTUAL ECONOMIES AND CURRENCIES: ADDITIONAL IRS GUIDANCE COULD REDUCE TAX COMPLIANCE RISKS (2013) https://www.gao.gov/assets/gao-13-516.pdf.
15 Kat Tretina, How to Buy Cryptocurrency , FORBES (Nov. 4, 2022), https://www.forbes.com/advisor/investing/cryptocurrency/how -to-buy-cryptocurrency/.
16 Id.
17 Id.
than regular purchases, meaning that additional cash advance fees are required.18
After purchasing the cryptocurrency, the next crucial step is selecting a storage method, more commonly known as a crypto “wallet.” 19 Purchasing cryptocurrency through an exchange creates more options for storage; including a crypto wallet attached to the exchange, “hot” wallets stored online and on internet-connected devices, or “cold” wallets stored on external devices and hard drives.20 It should be noted that because cryptocurrency exchanges are not backed by protections like the Federal Deposit Insurance Corporation (FDIC), they are at risk of theft or hacking.21
C. The Blockchain
Cryptocurrency is backed by its underlying blockchain technology, which eliminates the need for any financial intermediaries, and instead provides what appears to be a seamless way to transfer virtual currencies; which is the primary reason virtual currencies are so appealing to investo rs with criminal intentions.22 As defined by Aaron Wright and Primavera De Filippi, authors of “Blockchain and the Law: The Rule of Code,” the blockchain is “a distributed, shared, encrypted database that serves as an irreversible and incorruptible public repository of information.”23 Blockchain technology allows investors to transfer assets and guarantees that once a transaction has occurred, it will be rendered immutable and become resistant to any interference. Blockchain has one feature that makes it st and apart from other
18 Id
19 Id
20 Id
21 Id
22 CONG RSCH SERV., R43339, BITCOIN: QUESTIONS, ANSWERS, AND ANALYSIS OF LEGAL ISSUES (2015), https://sgp.fas.org/crs/misc/R43339.pdf.
23 AARON WRIGHT & PRIMAVERA DEFILIPPI, DECENTRALIZED BLOCKCHAIN TECHNOLOGY AND THE RISE OF LEX CRYPTOGRAPHIA 2 (Mar. 20, 2015, revised July 25, 2017), http://ssrn.com/abstract=2580664.
technological innovations: It is by design a global technology; 24 it was developed to be transnational in nature and to dodge national borders and established institutions. Consequently, blockchain technology facilitates the transmission of data without transmitting the geographical location of the participants in the blockchain network. 25 The striking feature of this technology is that transactions are never tied to any real -world identity.
III. UNITED STATES FINANCIAL REGULATIONS AND CRYPTOCURRENCY FRAUD
[B]itcoin is mostly for underground economic activities and often things that are illegal or illicit . . . The underlying use value of Bitcoin is to do ransomware. One of the risks that Bitcoin has is that it could, at some point, be subject to a lot more regulations.26
Ben Bernanke
Former Chair, U.S. Federal Reserve System
A. The Cryptocurrency Regulatory Challenge
As Former U.S. Federal Reserve Chair Ben Bernanke stated, the underlying use value of Bitcoin is ransomware and underground economic activities.27 Where traditional financial markets were dominated by a small number of large actors, the cryptocurrency market is dominated by a large number of small ones.28 These markets are heavily dependent on automation and algorithmic decision-making for their proper functioning.29 With record
24 Primavera De Filippi & Samer Hassan, Blockchain Technology as a Regulatory Technology: From Code is Law to Law is Code , FIRST MONDAY (Dec. 5, 2016), https://firstmonday.org/ojs/index.php/fm/article/down load/7113/5657.
25 Georgios Dimitropoulos, The Law of Blockchain , 95 WASH. L. REV. 1117, 1119 (2020).
26 Aaron R. Sorkin, Bitcoin will not become an alternative form of money, says former Fed Chair Ben Bernanke , CNBC (May 16, 2022), https://www.cnbc.com/video/2022/05/16/bitcoin-will-not-become-an-alternative-form-ofmoney-says-former-fed-chair-ben-bernanke.html.
27 Id
28 William J. Magnuson, Financial Regulation in the Bitcoin Era , 23 STAN J. L. BUS & FIN 162 (2018).
29 Id.
numbers of illegal and illicit activities that occur via virtual currencies, the structure of such currencies raises the question of whether governments are adequately controlling this up-and-coming market. As William J. Magnuson explains in the Stanford Journal of Law, Business, and Finance, the concerns about the lack of financial regulation in these markets can be usefully understood in the context of the three core purposes of modern-day financial regulation: Efficiency, fairness, and stability.30 Firstly, financial technology (fintech) may reduce the financial sector’s ability to efficiently allocate capital.31 Secondly, fintech may create greater opportunities for actors to take advantage of unsophisticated consumers. 32 Thirdly, fintech may create a set of systemic risks that may threaten the broader economy.33
Though developments in fintech have fundamentally changed the way that financial services are provided, they present a unique challenge for current financial regulation.34 Dov Greenbaum, a professor at Yale University and director of the Zvi Meitar Institute for Legal Implications of Emerging Technologies, writes, “until governments figure out a coherent response to this technology, each regulatory agency will tend to move independently and inconsistently.”35
B. Modern Cryptocurrency Frauds
Cryptocurrencies were created to effectively deal with fraud and reverse the nature of disadvantageous financial transitions to merchants. 36 Cryptocurrency was, in fact, created with the intent to prove advantageous to individuals, businesses, and organizations. However, many of the legal weaknesses are shielded within the benefits of the virtual currency. Criminals
30 Id. at 175.
31 Id.
32 Id.
33 Id.
34 Id. at 160.
35 Dov Greenbaum, What Bitcoin Needs is a Few Good Regulations , WALL STREET JOURNAL, Dec. 15, 2017, at A17; accord Magnuson, supra note 95, at 8.
36 Barber et al., supra note 11 (see comments on how merchants have to be cautious of customers and fear the risk of having their transactions reversed due to fraud).
are attracted to this method of transaction because it reduces the risk of being caught in scams.37 This Note previously mentioned the underlying blockchain technology of Bitcoin and how it helps disclose one’s personal information. The blockchain leads to a perception that Bitcoin allows for full anonymity, which further attracts criminals.38
One particular example of a financial crime committed via cryptocurrency is the story of a black -market website known as Silk Road.39 Silk Road began as a marketplace for people to buy and sell drugs. 40 Using the same blockchain encryption tools that serve Bitcoin allowed these users to engage in black-market activities without fear of getting caught.41 It took two years for the government to find the website owner, which was only because the owner inadvertently exposed his identity.42
In cases similar to the Silk Road, criminals employ virtual currencies for money laundering, sanctions evasion, and other illicit financing purposes. Exploitations like these particularly involve darknet marketplaces, which are websites promoting sales of illicit goods and services only available in anonymized overlay networks that require specific software to access. 43 The darknet can thus indicate drug sales or purchases, child exploitation, cybercrime, and other criminal activity. 44 As reported by the Financial Crimes Enforcement Network, AlphaBay is a prime example of a darknet marketplace conducting money laundering, identity theft, and distribution of
37 Nikita Malik, How Criminals and Terrorists Use Cryptocurrency: And How To Stop It , FORBES (Aug. 31, 2018), https://www.forbes.com/sites/nikitamalik/2018/08/3 1/howcriminalsand-terrorists-use-cryptocurrency-and-how-to-stop-it/#2cf57f763990.
38 Id.
39 Larry McIntyre, Cyber-Takings: The War on Crime Moves into the Cloud , 14 PITT. J. TECH. L. & POL’Y 333, 342 (2014).
narcotics facilitated via the exchange of virtual currencies.45 In a mere two years, AlphaBay made possible numerous illegal financial transactions before U.S. law enforcement authorities were able to step in and freeze millions of dollars worth of proceeds from AlphaBay’s illegal activities.46 Such cases involving Bitcoin have emerged at an alarming rate over past years, the primary reason being that inconsistent regulations create loopholes that pave the way for financial crimes and ransomware.
IV. PROPOSED CRYPTOCURRENCY REGULATIONS
While cryptocurrency regulations are limited on the federal level, many individual state legislatures have introduced regulatory measures to clarify cryptocurrency exchange vis-à-vis existing money transmission laws.47 Brookings,a leading non-profit and public policy research organization, published an article that stated that vast majority of U.S. states have taken at least some form of regulatory stance concerning cryptocurrencies and blockchain technology; 48 though this section will focus on reviewing some of the New York State (NYS) virtual currency regulations as a model for further uniform regulations. The NYS Department of Financial Services (DFS) has issued some of the most thorough cryptocurrency regulations to prevent financial fraud and thus can provide a sufficient foundation for potential and future regulations.49
In August 2014, the New York State Superintendent of Financial Services announced an inquiry designed to ascertain the appropriate regulatory
45 Id. at 3.
46 Id. at 4.
47 Kevin C. Desouza et al., Blockchain and U.S. State Governments: An Initial Assessment , BROOKINGS (Apr. 17, 2018), https://www.brookings.edu/blog/techtank/2018/04/17/blockchain -and-u-s-stategovernments-an-initial-assessment/; see also Joanna Caytas, Blockchain in the U.S. Regulatory Setting: Evidentiary Use in Vermont, Delaware, and Elsewhere , COLUM SCI & TECH. L. REV. (May 30, 2017), https://ssrn.com/abstract=2988363.
48 Id
49 Virtual Currency Businesses, DEPARTMENT OF FINANCIAL SERVICES, https://www.dfs.ny.gov/virtual_currency_businesses.
framework for virtual currencies.50 After public hearings held in January 2014, the DFS announced their consideration of “formal proposals and applications for the establishment of regulated virtual currency exchanges operating in New York.”51 The final DFS rule was published in the New York State Register’s June 24, 2015 edition.52 The New York State DFS introduced the concept of a “Bitlicense” in order to combat the fraudulent use of investors’ money by business entities and ensure that New Y orkers have a well-regulated way to access the virtual currency marketplace. 53 A “Bitlicense,” monitored by the Nationwide Multistate Licensing System and Registry, is defined as a business license issued by the New York State DFS for any virtual currency activities.54 By this rule, entities conducting any of the following virtual currency activities are subject to the requirements of a “Bitlicense”:
Receiving or transmitting virtual currency on behalf of consumers; securing, storing or maintaining custod y or control of such virtual currency on the behalf of customers; performing retail conversion services, including the conversion or exchange of Fiat Currency or other value into Virtual Currency, the conversion or exchange of Virtual Currency into Fiat Currency or other value, or the conversion or exchange of one form of Virtual Currency into another form of Virtual Currency; buying and selling Virtual Currency as a customer business (as distinct from personal use); or controlling, administering, or issuin g a Virtual Currency. (Note: This does not refer to virtual currency miners). 55
Former Attorney General of New York, Eric T. Schneiderman, announced the “Virtual Markets Integrity Initiative” in April 2018, aimed to examine the policies and procedures of platforms utilized by individuals for
50 Matt Anderson, Press Release - NY DFS Releases Proposed BitLicense Regulatory Framework for Virtual Currency Firms , New York State Department of Financial Services (July 17, 2014), https://www.dfs.ny.gov/reports_and_publications/press_releases/pr1407171.
51 Id.
52 Id.
53 Id.
54 Id.
55 Id.
the exchange of cryptocurrencies.56 It solicited information from thirteen major virtual currency trading platforms requesting key information on their operations, internal controls, and safeguards to protect customer assets57 Former Attorney General Schneiderman stated:
Ensuring that enforcement agencies, investors, and consumers have the information they need to understand the practices and the risks on these platforms is critical, given reports of the theft of vas t sums of virtual currency from customer accounts, sudden and poorly explained trading outages, possible market manipulation, and difficulties when withdrawing funds from accounts. Often, the platforms lack the basic market protections of traditional investing platforms.58
Thus, enacting policies similar to New York State’s Bitlicense regulation at the federal level can mitigate the number of financial crimes committed by means of cryptocurrency. Such policies at the federal level can provide the virtual currency platforms with the basic market protections they need to become as reliable as traditional investing platforms, and will protect both consumers and investors from becoming pawns in the elaborate schemes of financial criminals.
V.
CONCLUSION: THE NEED FOR CRYPTOCURRENCY REGULATION
One of the primary reasons American states stray from stricter cryptocurrency regulations is because a caveat of further regulation of the virtual currency markets is the fact that, due to its underlying blockchain technology, cryptocurrency is a borderless, transnational currency. State and federal regulations in virtual currency markets are rendered inconsistent as they fail to uniformly regulate cryptocurrency, as those with intentions to use
56 A.G. Schneiderman Launches Inquiry Into Cryptocurrency “Exchanges ” , N.Y.S. OFF. ATT’Y GEN. (Apr. 17, 2018), https://ag.ny.gov/press-release/ag-schneiderman-launchesinquirycryptocurrency -exchanges [https://perma.cc/SCS6-SS57].
57 Id.
58 A.G. Schneiderman Launches Inquiry Into Cryptocurrency “Exchanges” , supra note 56 (citing, e.g., N.Y. Exec. Law § 63(12) (McKinney 2014)); N.Y. Gen. Bus. Law § 349 (McKinney 2014); Id. § 352.
the virtual currency for illicit means find loopholes where regulations fall short. However, New York State is known for having one of the most strictly enforced cryptocurrency regulations: BitLicense.59 The regulatory system in New York State imposes disclosure and protection requirements on any virtual currency business entity.60 Thus, New York State virtual currency regulations which have proved more rigorous than those of most U.S. states may be used as a model for further U.S. cryptocurrency regulations. Bearing in mind that blockchain technology is borderless, state and federal regulations need to be consistent in order to effectively prevent the myriad of financial crimes that occur as a result of the decentralized regulatory nature of virtual currencies.
This Note was edited by Amy Herd
59 Anderson, supra note 50
60 NYS DFS, supra note 49 (see Part 500 Cybersecurity Requirements for Financial Services Companies).
THE DISSOLVING WALL: THE SUPREME COURT’S NEW INTERPRETATION OF THE ESTABLISHMENT CLAUSE
Samantha Scott*
This Note will discuss the U.S. Supreme Court’s interpretation of the Establishment Clause, starting from the Court’s first modern case in Everson v. Board of Education of Ewing (1947) to the creation of the Lemon test in Lemon v. Kurtzman (1971). This Note examines the recent developments in Establishment Clause jurisprudence in Carson v. Makin (2022) and Kennedy v. Bremerton School District (2022), which shifted the Court’s approach to the Establishment Clause from neutrality to an accommodationist proced ure. The Note then evaluates the implications of the new Supreme Court test in Kennedy v. Bremerton School District while considering how the Court can further refine the Lemon test to establish a more productive approach.
B.A Candidate for Political Science and International Political Economy, Fordham College at Rose Hill, Class of 2024. I am honored to write and edit for the Fordham Undergraduate Law Review. I would also like to thank my mom, dad, and sister for encouraging and inspiring me.
I. INTRODUCTION
The United States has long emphasized the importance of maintaining the separation of church and state, as set forth in the Constitution. Through the Establishment Clause of the First Amendment, the Founding Fathers sought to eliminate religious discrimination and persecution. The Framers acknowledged that religious tolerance and acceptance were paramount to the idea that “all men were created equal,” and thus created an entire clause dedicated to religious neutrality in government.1
In Everson v. Board of Education of Ewing (1947), the Supreme Court first upheld the strict separation of church and state Even as the Court continues to evolve its Establishment Clause jurisprudence, the Justices have remained steadfast to the interpretation that church and state affairs should stay distinct. Yet the Court has become increasingly discontent with the idea of neutrality and the Lemon test established in Lemon v. Kurtzman (1971). Dissenters argued that the Lemon test’s ineffectiveness required a new vision of the Establishment Clause: one that permitted greater intermingling between church and state. In its recent docket, the Court has led the government “to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.”
In cases such as Kennedy v. Bremerton School District (2022) and Carson v. Makin (2022), the Court has disregarded the long-established precedent of
1 The Declaration of Independence (U.S. 1776).
2 Trinity Lutheran Church of Columbia v. Comer, 582 U.S. 449, 496 (2017) (Sotomayor, J., dissenting).
using the Lemon test in favor of an ambiguous approach, which relies on historical context to determine whether a statute violates the Establishment Clause. Like many new tests, the Court will have to continually assess its new standard and develop its limitations. As such, the Court will have opportunities to advance its new interpretation of the Establishment Clause or restore the positive aspects of the Lemon test.
This Note will argue that the Supreme Court has recently turned away from the original intent of the Establishment Clause towards a view with farreaching implications. This Note will ultimately argue that the Court must further interpret its new Establishment Clause test, incorporating components of Lemon to develop a comprehensive approach still rooted in neutrality.
II. THE ESTABLISHMENT CLAUSE AND ITS FOUNDING INTERPRETATION
A. Founding Beliefs of the Establishment Clause
“Congress shall make no law respecting the establishment of religion . . .”3 In these words, the Founding Fathers of the United States enacted the Establishment Clause of the First Amendment. Here, the Founders suggest that Congress is unable to create laws supporting or discriminating against any religion, and Congress is unable to establish any religion.4
James Madison, one of the Founding Fathers, reasoned that true religion does not need the support of the law or taxpayer money.5 Meanwhile, in his letter to the Danbury Baptists, Thomas Jefferson wrote about the separation of church and state:
Believing with you that religion is a matter which lies between Man & his God, that he owes account to none other than for his faith or hi s worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no
3 U.S. CONST. amend. I, §1.
4 Id.
5 Id.
law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. 6
Madison and Jefferson provided the logic for the “wall of separation of Church and State.”7 This rationale has influenced the interpretation and jurisprudence of the First Amendment’s Establishment and Free Exercise Clause.
Nevertheless, the Court did not address its interpretation of the Establishment Clause and the issue of church and state until 1947 in Everson v. Board of Education of Ewing, which initiated a domino effect leading to a series of Establishment Clause inquiries.
B. Everson v. Board of Education of Ewing: The Inaugurating Modern Case of Separation Between Church and State
In Everson, Arch R. Everson challenged the validity of a New Jersey statute, in which educational district boards were authorized to create their own rules and contracts for children’s transportation to and from schools other than private schools that operated for profit.8 The Ewing Board of Education decided to pay the cost of transportation for students attending both public and Catholic schools.9 Everson sued the Board of Education of Ewing, arguing that the deployment of taxpayer funds for transportation to religious schools was unconstitutional under the Establishment Clause of the First Amendment.10 The Court determined that the Board of Educat ion of Ewing’s program did not violate the Establishment Clause. Justice Hugo Black, writing for the majority, reasoned that the law did not provide money to religious schools nor support them.11 Justice Black contended that the law
6 Letter from Thomas Jefferson to Danbury Baptist Association (Jan. 1, 1802), The Papers of Thomas Jefferson (Manuscript Division, Library of Congress), Series 1, Box 89, Dec. 2, 1801 - Jan. 1, 1802.
7 Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947).
8 Id.
9 Id.
10 Id.
11 Id.
was enacted to assist all parents, regardless of their religion, in transporting their children to school.12
The Court employed the case to draw a clear distinction, preserving the principle of separation of church and state Justice Black opined that,
“The ‘establishment of religion”’ clause means at least this: neither state nor the Federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over the other. Neither can influence a person to go or to remain away from church against his will…”13
Here, Justice Black addresses the principle of strict separation of church and state as it applies to federal and state governments. According to this legal principle, state and federal government involvement in the church is limited regarding taxation, legislation, and direct participation in religious affairs.14 Justice Black furthers his argument, recalling the words of Thomas Jefferson: “. . . the clause against the establishment of religion by law was intended to erect ‘a wall of separation between church and State.’” 15
Thus, Justice Black immortalized and intertwined the idea of a ‘wall’ between church and state with the strict separation of such in Supreme Court doctrine. Everson established the Court’s modern doctrine with an initially strict interpretation of the Establishment Clause. The decision also extended applicability to the states by virtue of the Fourteenth Amendment, leading to future Supreme Court cases involving the Establishment Clause.16
12 Id
13 Id at 15.
14 Id
15 Id at 16.; see also Jefferson, supra note 6 (“ thus building a wall of separation between Church & State.”).
16 Id. at 15 (“The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual’s religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the ‘establishment of religion’ clause.”).
III. THE THREE VIEWS OF SEPARATION BETWEEN CHURCH AND STATE UNDER THE ESTABLISHMENT CLAUSE
A. Strict Separation of Church and State
In earlier cases regarding the Establishment Clause, the Court took a stricter stance on the separation of church and state; the Court viewed the separation of church and state as a wall that was “high and impregnable.” No government interference was tolerated. 17
During this time, the Court interpreted any law supporting or suppressing religion as a violation of the First Amendment, per the strict separation of church and state. As time progressed, the Court shifted its stance, becoming more neutral towards religion. Over a series of decisions, the Court created numerous tests to determine a law’s neutrality in regard to religion, starting with Lemon v. Kurtzman.
B. Neutrality, Church, and State
Under the neutrality doctrine, laws, and statutes for establishing or disestablishing religion would be unconstitutional, rather than focusing on keeping the two entities completely separate. In Lemon v. Kurtzman, the Court held that state statutes providing public aid to church-related elementary and secondary schools violated the Establishment Clause of the First Amendment. The Court also went further with a three-prong test of neutrality.18
The three-prong test of neutrality worked to resolve conflicts arising from government programs that sponsor, support, or become involved with religious education. This test arose out of the concern that children could fall prey to religious influences or state-sponsored religion within the education system.19 In the Lemon test, the Court found that for a law to be valid under
17 Id. at 18 (“The First Amendment has erected a wall between church and st ate. That wall must be kept high and impregnable. We could not approve the slightest breach.”).
18 Lemon v. Kurtzman, 403 U.S. 602 (1971).
19 Id.
the Establishment Clause, it must firstly have a “secular legislative purpose.”20 Secondly, the law’s “principal or primary effect must be one that neither advances nor inhibits religion.”21 Finally, the law or statute “must not foster an excessive government entanglement with religion.” 22 In this prong, the law or statute cannot be overly involved in the monitoring or funding of religion. Under the Lemon test, a violation of any of these three prongs is deemed unconstitutional under the Establishment Clause.23
Over the last thirty years, the Lemon test has provided the framework for Establishment Clause cases. After critics asserted that the Lemon test was too harsh and needed to evolve to prioritize neutrality, the Court worked to improve the test. In Lynch v. Donnelly (1984), the Court shifted from the Lemon test and introduced the “endorsement test”24 to Establishment Clause jurisprudence. In this case, the City of Pawtucket, Rhode Island, erected a Christmas display, which included a Santa Clause house, a Christmas tree, and a nativity scene. 25 Daniel Donnelly, a resident of the town, sued the Mayor of Pawtucket, Dennis Lynch, arguing that the display violated the Establishment Clause.26
In a split decision, the Court found that Pawtucket had not violated the Establishment Clause.27 In the majority opinion, the Court asked whether a reasonable observer would find that the challenged government action endorsed religion. 28 In doing so, the Court modified the Lemon test’s “principal or primary effect” prong.29 Under this updated definition, the Court found that a reasonable observer would not believe the holiday display was endorsing religion and was thus constitutional.30
20 Id. at 613.
21 Id. at 613.
22 Id. at 613.
23 Id
24 Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
25 Id
26 Id.
27 Id. at 684.
28 Lemon, 403 U.S. at 613.
29 Lynch, 465 U.S. at 684.
30 Id.
The Court upheld this precedent in later cases involving the neutrality of church and state.31 However, as the Court continued to rule on similar cases, more justices began to change their interpretation of the Lemon test and sought a new approach under the Establishment Clause: accommodation.
C. Increasing Court Concerns with Neutrality
While the Lemon test has supporters, many members of the Court have begun to feel that the test grew ineffective throughout its thirty years of precedent. The Lemon test was initially criticized for being highly subjective and unpredictable, primarily because of the perceived uncertainties under the three prongs of the Lemon test, especially the first prong. Under the first prong, critics held that it was impossible to determine whether legislative intent was secular or religious.32 Congress and state legislatures are made up of a diverse number of individuals supporting different pieces of legislation for different reasons. How can the Supreme Court determine if legislation has a secular purpose or intent when the motivation for each member of the legislature may be vastly different?
Critics of the Lemon test have also identified issues with determining the primary or principal effect of an act.33 The difficulty of determining whether an act will advance or inhibit a religion seems subjective to either the majority opinion of United States citizens or the majority of Supreme Court justices on the bench when the case appears before the Court.
In recent Supreme Court cases, more justices have characterized Lemon as a problematic test. In American Legion v. American Humanist Association (2019), the Court revealed its dissatisfaction with the Lemon test. In this case, a forty-foot-tall cross displayed in a memorial park in Prince George’s
31 See Herbert M. Kritzer & Mark J. Richards, Jurisprudential Regimes and Supreme Court Decision Making: The Lemon Regime and Establishment Clause Cases , 37 L. & SOC. REV. 4 (2003).
32 Id. at 5; contra Erwin Chemerinsky, Why Church and State Should be Separate , 49 WM. & MARY L. REV. 2193 (2008); see also STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1994).
33 Kritzer & Richards, supra note 31, at 6.
County, Maryland, offended several non-Christian residents.34 The residents sued the commission responsible for the maintenance of the cross, arguing that it was unconstitutional under the Establishment Clause.35 In the majority opinion, Justice Gorsuch rejected the residents’ claim, while employing the opinion to advance the majority’s qualms with the Lemon test. During oral argument, Justice Gorsuch referred to Lemon as a “dog’s breakfast,”36 stating that it was “time for this court to thank Lemon for its services and send it on its way.”
37 Even more harshly, Justice Kavanaugh wrote in his concurrence that “the Court’s decisions over a span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases.”
38
Similarly, Justice Scalia famously characterized the Lemon test as being “like some ghoul in a late-night horror film that . . . stalks our Establishment Clause jurisprudence.”39 However, the Roberts Court had never been able to act on its criticism until the culmination of two key decis ions in 2022. The Court created a new precedent for Establishment Clause jurisprudence and signaled a shift in the Court from neutrality to accommodation.
34 American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019).
35 Id.
36 Transcript of Oral Argument at 25, American Legion v. American Humanist Association, No. 17-1717/18-18 (“You tell us we should abandon Lemon’s endorsement test because it’s become a dog’s breakfast It seems to me that you are taking us right back to the dog’s breakfast you ’ve warned us against . . . ”).
37 Id. at 67 (“It’s been a long time since the Court has applied Lemon; but yet, the courts of appeals continue to cite it and use it Is it time for this Court to thank Lemon for its services and send it on its way? (Laughter.)”).
38 American Legion , 139 St. Ct. at 2093 (Kavanaugh, J., concurring) (“The Court’s decision in this case again makes clear that the Lemon test does not apply to Establishment Clause cases in that category. And the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.”).
39 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S 384 (1993) (Scalia, J., concurring).
IV. RECENT DEVELOPMENTS OF THE SUPREME COURT’S INTERPRETATION OF THE ESTABLISHMENT CLAUSE
During the Summer 2022 docket, the Supreme Court heard Carson v. Makin and Kennedy v. Bremerton School District. In these cases, the Court reversed key Establishment Clause precedent set forth in Lemon to create a new test, significantly shifting Establishment Clause interpretation.
A. Carson v. Makin
The Supreme Court first decided the case Carson v. Makin, which preceded Espinoza v. Montana Department of Revenue (2020) and concerns Maine’s program of tuition assistance under the Free Exercise and Establishment Clauses of the First Amendment.40 Maine’s tuition program was designed to help parents who live in rural school districts apply for tuition assistance who neither operate a secondary school of their own nor contract with a school in another district..41 The petitioners, the Carsons, Gilles, and the Nelsons, lived in qualifying school districts and appl ied for tuition assistance to send their children to accredited secondary schools. 42 However, they were denied tuition assistance because of the nonsectarian nature of their secondary schools. The petitioners then sued the Commissioner of the Maine Department of Education, arguing that denying them assistance under the program was a violation of the Free Exercise and Establishment Clause of the First Amendment.43
The Court ruled in favor of the plaintiffs, reversing the decision of the Court of Appeals, and found that denying the tuition assistance violated the Free Exercise Clause of the First Amendment.44 In the majority opinion, Chief Justice Roberts wrote that the Free Exercise Clause did not permit states to “expressly discriminate against otherwise eligible recipients by
40 Carson v. Makin, 142 S. Ct. 1987 (2022).
41 Id.
42 Id.
43 Id.
44 Id.
disqualifying them from a public benefit solely because of their religious character.”45
When the Court decided the case under the Free Exercise Clause, the Court also brought the Establishment Clause into consideration. The Court found that under the Establishment Clause, Maine’s tuition assistance program was a neutral benefit program and that private citizens could make independent choices over the funds. 46 The Court determined that an individual’s decision to direct public funds to religious organizations does not offend the Establishment Clause.47
Even though the majority ruled in favor of the petitioners, the dissenters in Carson held that the case was indicative of a larger trend of the Supreme Court paying exclusive attention to the Free Exercise Clause, rather than paying joint attention to both the Establishment and Free Exercise Clauses.48 In her dissent, Justice Sotomayor posited that “the Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”49 Calling back to the inaugural decision of the modern Establishment Clause in Everson, Justice Breyer argued that the Establishment Clause “commands a separation of church and state,” and if a state cannot aid one or all religions, the choice for public funds to flow to religious educational organizations is unconstitutional.50 Breyer’s dissent proved to be prophetic. Later in the Summer 2022 docket, the Supreme Court decided another case similarly pertaining to Establishment Clause jurisprudence as Carson.
45 Id. at 1991.
46 Id.
47 Id. at 1998 (“As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman promotes stricter separation of church and state than the Federal Constitution requires.”).
48 Id.
49 Id. at 2012 (Sotomayor, J., dissenting).
50 Id. at 2003 (Breyer, J., dissenting).
B. Kennedy v. Bremerton School District
In Kennedy v. Bremerton School District, Coach Joseph Kennedy argued that the Bremerton School District violated his rights to free speech and free exercise of religion by prohibiting him from giving post -game prayers at athletic events. 51 Kennedy argued that his prayers were independent of responsibilities as a public employee.” 52 Bremerton School District asserted that under federal precedent, coaches and other district employees were not allowed to engage in religious expression, including prayer, with or in front of students.53
The Ninth Circuit Court of Appeals concluded that Kennedy spoke as a public employee, not as a private individual.54 As such, under the Establishment Clause, Kennedy violated the separation of church and state in schools.55 However, on appeal, the Supreme Court reve rsed the Ninth Circuit’s decision, holding that the Free Exercise and Establishment Clause of the First Amendment protected Coach Kennedy as a private individual engaging in a personal religious observance. 56
As decided in Kennedy, the Court abandoned the Lemon test in favor of a more lenient test. This new test considered “historical practices and understandings” to determine whether a law or statute violated the Establishment Clause.57 The test called for the Court to focus on the original meaning, history, and prior cases dealing with the same subject matter.58 While the test left many questions unanswered about analyzing a contested
51 Kennedy v. Bremerton School District, 142 S. Ct. 2407 (2022).
52 Id. at 2417.
53 Id. at 2418.
54 Id. at 2420.
55 Id.
56 Id. at 2416.
57 Id. at 2428.
58 Id. (“In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’ . . . An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some ‘“exception”’ within the ‘Court’s Establishment Clause jurisprudence.’”).
government action using historical tradition, it made one thing clear: the Lemon test was dead.59
In his majority opinion for the Court, Justice Gorsuch wrote that the Court “recognized Lemon’s demise and wisely left it dead.” 60 The main problem the Court found with the lower court’s decision came from “the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahist orical approach to the Establishment Clause.”61
Under the newly established test, the Court affirmed that the Establishment Clause did not contradict the First Amendment.62 Kennedy v. Bremerton School District forged a new path for the Supreme Court under the judicial idea of accommodation. Per the principles of accommodation, the Court only finds actions of public employees unconstitutional if the employee directly coerces or establishes religion in their role as a public employee. 63
There is inherent controversy in overturning a key test with years of subsequent precedent resting on it. In Justice Sotomayor's dissent, she wrote that “the Court now charts a different path, yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.” 64 Justice Sotomayor felt that the Court improperly understood the case: rather than focusing on an indiv idual’s ability to engage in private prayer in the workplace which shaped the Court’s decision in the Free Exercise Clause the case should have evaluated whether a public school district must allow an employee to publicly display his or her personal religious beliefs at a school event.65 According to Justice Sotomayor, if the Court understood the case under this context, it would have fallen under the Establishment Clause, and the Court would have found that
59 Id.
60 Id. at 2421.
61 Id. at 2427.
62 Id.
63 Id. at 2429.
64 Id. at 2434 (Sotomayor, J., dissenting).
65 Id. at 2435 (“As the majority tells it, Kennedy, a coach for the District’s football program, ‘lost his job’ for ‘pray[ing] quietly while his students were otherwise occupied. ’ The record before us, however, tells a different story.”).
66
the “school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.”
Ultimately, in overturning the Lemon test, the Court’s key decisions on the Establishment Clause have far-reaching and unrealized implications. With the Supreme Court and lower courts now ruling under a vague test of “history and tradition”67 that is still being developed, the way that the Supreme Court proceeds with Establishment Clause cases will be critical to the future of this new test.
V. REBUILDING THE WALL: IMPLICATIONS AND DEVELOPING THE SUPREME COURT’S CURRENT INTERPRETATIONS
A. Implications of the Supreme Court’s Current Interpretation
In deciding Kennedy, the Court did not expressly explain how the historical analysis test functions beyond the statement that the Court would hold “a historically sensitive understanding of the Establishment Clause.”68 When the Court announces a new rule or standard of constitutional law, the Court often only provides a general principle that requires elaboration through further decisions.69 However, the wealth of precedent previously enjoyed by Establishment Clause jurisprudence makes the current test feel bare, with many important questions still unresolved.
Firstly, the Court must address if there is a specific historical understanding that the Court will depend on to determine whether a law or statute is unconstitutional under the Establishment Clause. 70 There is a difference between whether the Court uses a historical underst anding from
66 Id. at 2441.
67 Id. at 2434.
68 Id. at 2429.
69 See Daniel L. Chen, Kennedy v. Bremerton School District: The Final Demise of Lemon and the Future of the Establishment Clause , 21 HARV. J. L. & PUB. POL’Y PER CURIAM 1 (2022); see also Anne E. Blankenship-Knox & Bretter Geier, When Speech is Your Stock in Trade: What Kennedy v. Bremerton School District Reveals about the Future of Employee Speech and Religion Jurisprudence , 41 CAMPBELL L. REV 31 (2020).
70 Blankenship & Geier, supra note 69, at 35.
the Founders-era or a modern interpretation. Secondly, the Court must decide whether a law or statute shares a characteristic of a historical religious establishment, and if that would be enough for a law or statute to be rendered unconstitutional.71 If the Court continues to take a neutral stance toward church and state, a single characteristic of religious establishment would be enough to render a law unconstitutional; however, the Court has yet to elaborate on whether this will be true of th eir new test. Finally, the Court must determine what hallmarks of historical understanding are more important than others when the Court hears a specific case. 72
When considering these questions, it is evident that the Court needs to create a comprehensive standard for their new test to resolve the fissures following the overturning of the Lemon test. As cases enter the Supreme Court and Court of Appeals, the Court needs to further define what are historical practices and standards.
B. Creating a New Direction from Kennedy
As the Court decides the future of the Establishment Clause and its interpretation, the Court must consider the positive aspects of Lemon as it continues to modify and refine its new test. There are key points of the Lemon test, such as its adherence to a neutral standard, that could enable the Court to continue a neutral approach to the Establishment Clause. While doing so, the Court can abandon the problems that have continually plagued the Lemon test. For example, the ‘effects’ prong of the Lemon test could be incorporated into the new Establishment Clause jurisprudence. The ‘effects’ prong of the Lemon test limited the incidental burdens and benefits for a religion that could stem from government action. Even if a law does not intentionally endorse or forbid religious practices, it can still violate the Establishment Clause. By incorporating the use of the ‘effects’ prong into its new test, the C ourt can create a check by preventing laws and statutes from resulting in outsized
71 Id. at 36; see also Gabrielle Girgis, A Little-Noted Puzzle in Religion Law, PostBremerton, 27 HARV J L. & PUB POL’Y. (2022).
72 Id. at 36.
effects for or against a certain religion, even if the laws were not legislated with this intention.73
The Lemon test was not a perfect test for Establishment Clause cases, but the Court does not need to fully abandon the principles of neutrality. In future Establishment Clause cases, the Court will have the opportunity to further refine its interpretation. The Court must maintain elements of neutrality and abstain from delving into accommodationist principles. By adding the positive aspects and mechanisms of the Lemon test, the Court can continue to uphold neutrality, which is what made Lemon a longstanding precedent.
VI. CONCLUSION
The Court’s understanding of the Establishment Clause has turned away from the Founding Fathers’ interpretation. Though “reaffirm[ing] that the Establishment Clause prohibits a government from coercing participation in religious exercise,” the Court is now “appl[ying] a nearly toothless version of coercion analysis.”
74 As the Court reckons with the future of the Establishment Court, it must consider the past precedent of the Court, both in terms of separatism and neutrality. The Court must apply these principles to their new test to repair the dissolving wall of separation between church and state. If the Court incorporates the positive aspects of the Lemon test into their future interpretation of the Establishment Clause, the Court can begin to rebuild the wall of separation between church and state, establishing greater Establishment Clause jurisprudence for the future of the Supreme Court.
* * *
This Note was edited by Briana Al-Omoush
73 See Lisa M. Kahle, Making “Lemon-Aid” From the Supreme Court’s Lemon: Why Current Establishment Clause Jurisprudence Should be Replaced by a Modified Coercion Test, 42 SAN DIEGO L. REV. 349 (2005).
74 Kennedy, 142 S. Ct. at 2434 (Sotomayor, J., dissenting ).
CAN ICE EVADE SANCTUARY LAWS THROUGH CONTRACTS WITH DATA BROKER COMPANIES?
Sophia Ricci*
Throughout the United States, many cities and states have protections in place to guard their immigrant populations against deportation, known as sanctuary laws. Such laws limit local authorities’ abilities to collaborate with the U.S. Immigration and Customs Enforcement (ICE). Therefore, when undocumented immigrants are arrested for minor offenses, ICE is not alerted to detain and deport them. However, ICE ha s found a loophole around sanctuary laws by purchasing data from private data broker companies. ICE’s expensive contracts with data broker companies such as LexisNexis negate the need for collaboration with local law enforcement, as they already have the information they need to detain immigrants at their fingertips. Beyond sanctuary law violations, the ability to purchase extensive amounts of public and private data poses a threat to the privacy of citizens and noncitizens alike. Unlike the strong privacy protections in California and the European Union, the United States does not have strong, overarching privacy laws that can regulate the sale of data and its use in law enforcement investigations. This Note will examine the provisions of the aforementioned strong privacy laws in contrast with current insufficient pro tections in the United States, arguing that the U.S. should look to stronger models in order to protect its residents.
* B.A. Candidate for International Studies, Fordham College at Rose Hill, Class of 2024. I would like to thank Movement for Justice in El Barrio for sending me as an intern to a webinar on this subject and thereby inspiring me to write this Note. Also, I would like to thank my senior editor Briana Al-Omoush for helping me develop this Note.
I. INTRODUCTION
The principle of state sanctuary law is an important way to protect immigrants from the harmful systems of detention that affect their communities. While each state or county that enacts sanctuary laws has slightly different policies, the general idea of these laws is to limit U.S. Immigration and Customs Enforcement (ICE) collaborating with local authorities to detain immigrants, except for cases in which a serious crime has been committed.1 Often, when undocumented immigrants are arrested or detained for minor offenses, ICE will request that the individual remain detained after his or her original period of detention is over so that fed eral law enforcement can proceed.2 However, when cities or states have sanctuary policies, local law enforcement does not have to keep the individual in detention to appease federal immigration enforcement.3
According to Lutheran Immigration and Refugee Services, the two justifications behind communities enacting sanctuary policies are from a human rights and a constitutional standpoint.4 Communities that invoke a human rights standpoint in enacting sanctuary laws conclude that all individuals in the United States, citizens or non-citizens, deserve protection, mainly because many undocumented immigrants are refugees fleeing
1 What Are Sanctuary Cities and Why Do They Exist? , THE LUTHERAN IMMIGRATION AND REFUGEE SERVICES (July 12, 2021), https://www.lirs.org/what -are-sanctuary-cities-whydo-they-exist/.
2 Id.
3 Id.
4 Id.
violence or other humanitarian crises. 5 From a constitutional standpoint, communities enact sanctuary laws because undocumented imm igration is technically a civil violation rather than a crime, which should result in a penalty rather than a punishment.6 Many communities view deportation as too harsh to be classified as a penalty, which is why these communities enact sanctuary laws to correct this perceived injustice. 7
Despite the sanctuary laws present in many communities, ICE has found a loophole to continue their deportation agenda without needing to collaborate with local authorities: Private data broker companies. ICE enters into expensive contracts with private data broker companies to receive long spreadsheets of data on both citizens and non-citizens.8 This data allows ICE to bypass state and county sanctuary laws because they purchase information they would not have otherwise been able to attain without the help of the local authorities.9 Recently, immigrant rights groups have been challenging this practice, as there is very little information available regarding the extent of data to which they have access and for what purposes they are using said data.10 Currently, there are no provisions under United States federal privacy law that broadly target th e legitimacy of law enforcement using commercial data. This Note argues that current privacy laws are insufficient in protecting immigrant populations from the loophole of purchased data.
II. CURRENT CHALLENGES TO DATA COLLECTION
From 2020 to 2022, immigrant rights groups have begun to challenge the legality and ethics of ICE obtaining massive amounts of data through
5 Id.
6 Id.
7 Id.
8 Johana Bhuiyan, US immigration agency explores data loophole to obtain information on deportation targets, THE GUARDIAN (Apr. 20, 2022), https://www.theguardian.com/usnews/2022/apr/19/us-immigration-agency-data-loophole-information-deportation-targets.
9 Id.
10 Chris Mills Rodrigo, LexisNexis under growing pressure to sever ties with ICE , THE HILL (July 19, 2022), https://thehill.com/policy/technology/3564893-lexisnexis-undergrowing-pressure-to-sever-ties-with-ice/.
contracts with private data broker companies. Similarly, citizens of California whose data was sold by Thomson Reuters questioned its legali ty in a California District Court. This section will examine the overarching objections presented by immigrant rights groups to ICE data collection, focusing on lawsuits within specific states and counties with sanctuary laws, and a challenge to Thomson Reuters’ sale of private data without consent in California.
A. Freedom of Information Act Lawsuit
In August 2021, immigrant rights organization Just Futures Law (JFL) filed a lawsuit invoking the Freedom of Information Act (FOIA) to inquire into ICE’s use of information purchased from data broker companies, as well as to bring up concerns relating to the use of information that violates individuals’ privacy.11 While it is well known that ICE has contracts with private data brokers such as LexisNexis, the extent of surveillance resulting from these contracts is unknown.12 According to FOIA, the public has the right to request records from federal agencies such as ICE. JFL filed suit after ICE did not comply with their FOIA request within the allowed time frame.13
From this lawsuit, JFL and another Latinx and Chicanx activist group, Mijente, obtained government documents detailing that LexisNexis sells ICE data on “individuals, businesses, phones, email accounts, vehicles, jails, and more” through a $22.1 million contract with ICE.14 Similarly, JFL and Mijente learned from FOIA documents that between March and September 2022, ICE conducted 1.2 million searches nationwide using the data
11 Complaint, Just Futures Law v. U.S. Dep’t of Homeland Security, No. 2021 -cv-02208 (D.D.C. Aug. 19, 2021).
12 Id.
13 Id.
14 New FOIA Do cument Shows Mass Use of Data Brokers by ICE Nationwide , MIJENTE AND JUST FUTURES LAW (Jun. 9, 2022), https://static1.squarespace.com/static/62c3198c117dd661bd99eb3a/t/633c8680976c3666ec 9497f6/1664910976192/Mijente+__+JFL+press+release+on+national+LexisNex is+FOIAs. pdf.
purchased from LexisNexis.15 Such extensive searches negate the need for ICE to collaborate directly with local law enforcement agencies, thus surpassing state and city sanctuary laws and enabling ICE to pursue an agenda of mass deportation.
B. Public Hearings Regarding ICE’s Use of Purchased Data
In Chicago’s Cook County, officials have brought to public attention that ICE may be avoiding their county sanctuary laws through contracts with private data broker companies. The county hosted a public hearing to expose this practice, educating the community about how federal immigration agents find loopholes in state legislation and use them to surveil immigrants unjustly.16 While the hearings were primarily informational, the county commissioner declared that the Cook County hearing was intended to become a model for other states and counties to host similar hearings to look into this practice and loopholes around state legislation.17
Similarly, in Colorado, civil rights groups and the media have brought attention to how ICE uses contracts with data brokers rather than collaborating with local authorities.18 These groups compiled a report that demonstrated that even though sanctuary laws had been in place in the state since 2019, local law enforcement provided real -time incarceration data to federal immigration agencies via data brokers. 19 This real-time data is delivered to federal agents through Appriss Insights and the Accurint Virtual Crime Center, courtesy of LexisNexis, from private contacts that sell Colorado residents’ data.20 This software is especially alarming because it even provides data on individuals who were arrested for crimes but not found guilty, which puts these individuals on the radar of ICE personnel without
15 Id.
16 Mills Rodrigo, supra note 213.
17 Id.
18 Faith Miller, Data brokers provide ‘back -doors’ for ICE to target immigrants, report says, COLORADO NEWSLINE (2022), https://coloradonewsline.com/2022/04/22/sanctuarylaws-ice-public-safety-data/
19 Rodrigo, supra note 10.
20 Miller, supra note 18.
having to work with the local authorities.21 ICE claims that sanctuary policies require them to obtain data by other means because local jurisdictions not cooperating with ICE pose a threat to public safety. 22 However, critics in Colorado describe the contracts with these private companies as a backdoor for ICE to pursue their detention agenda.
C. Brooks v. Thomson Reuters Corp.
Although not pertaining to immigration, California residents Cat Brooks and Rasheed Shabazz challenged the practice of selling individuals’ public and non-public information on Thomson Reuters’ platform, CLEAR. Reuters’ platform was previously employed by ICE before their contract with LexisNexis,23 which allows anyone to pay to access extensive amounts of compiled information.24 The information available on the CLEAR platform consists of live cell phone records, location data from license plate tracking, criminal booking information, arrest records, credit records, DMV information, social media posts, utility records, and health information.25 The plaintiffs claim that their personal information was sold by Thomson Reuters without consent, for which they pursued the following courses of action: “(1) violations of the California common law right of publicity; (2) a claim for monetary relief for violations of California's Unfair Competition Law (UCL) (3) unjust enrichment; and (4) a claim for injunctive relief for violations.” 26
While the Northern District of California granted in part and denied in part the defendant’s motion to dismiss such claims, the court certainly questioned the legality of having access to such extensive amounts of information. The District Court cited the Supreme Court case United States DOJ v. Reporters Comm. for Freedom of Press, which states that “there is a
21 Id
22 Id
23 Miller, supra note 18
24 Brooks v. Thomson Reuters Corp., No. 21-cv-01418-EMC, 2021 U.S. Dist. WL 3621837, (N.D. Cal. Aug. 16, 2021).
25 Id.
26 Id.
vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.”27 Based on this Supreme Court case, the California District Court concluded that accessibility of this data in a singular location presented significant harm to the plaintiffs, leading the court to agree that the complaint meets the standard of unfairness under the UCL.28 Brooks demonstrates that there is concern about the sale of personal data outside the sphere of immigration activists. Similarly, it is important that privacy cases involving commercial data are being heard by the courts because the more this practice is challenged, the more it indicates that the United States needs stronger, overarching privacy protections.
III. MODELS FOR SUPERIOR PRIVACY LAWS
In the United States, there are no federal laws explicitly preventing ICE from purchasing data from private companies and using it to target undocumented immigrants for deportation. However, some states and other countries have stronger privacy laws that can be used as models for the U.S. as a whole. The California Consumer and Privacy Act (CCPA) is one such model for strong privacy protections that deals with how to handle purchased data. Similarly, the European Union’s General Data Protection Regulation (GDPR) provides an effective framework for dealing with privacy protections.
A. California
California has advanced privacy laws that not only contain strong protections for the privacy of its citizens, but also go so far as to address how local law enforcement and federal agencies can handle data obtained through databases. Firstly, under the CCPA, California residents have the right to
27 United States DOJ v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 764 (1988).
28 Brooks, 2021 U.S. Dist. WL 3621837, at 50.
know what information is being collected about them and how this information is subsequently used, to omit personal information collected on them, to opt out of the sale of personal data, and to non -discrimination for invoking such rights.29 In Brooks, plaintiffs cite non-compliance with the CCPA, to which Thomson Reuters responds that they provided an opt -out mechanism, as required by the Act. 30 The Northern California District states that they cannot rule that Thomson Reuters is in compliance with the CCPA because their opt-out mechanism features a link at the bottom of the page that is difficult to access and requires that those who wish to opt-out provide a photo and a state ID. This link violates the opt -guidelines because it is not user friendly; it requires individuals to provide additional private information to opt-out.31 The CCPA prioritizes protecting individual privacy, as it emphasizes that individuals have a right to know that their data is being sold and seeks to provide an accessible way for Californians to opt -out. While California has strong privacy law under this Act, it is only applicable within the state and, thus, cannot be used by residents in other states Similarly, because this is a state law, it does not apply to federal agencies, and consequently, the Act has no impact on the proceedings of ICE. Similarly, the California Attorney General has issue d guidelines that address the use of information obtained through databases. Under the California Values Act’s Database Guidance, the state of California advises that to use any law enforcement databases, law enforcement agencies must clearly state their intentions as to how they wish to use this data.32 If accessing the aforementioned database is for immigration enforcement, local law enforcement authorities must agree to only use such information to pursue
29 California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 -1798.199.100 (Deering 2023) (amended 2020).
30 Brooks, 2021 U.S. Dist. WL 3621837, at *50.
31 Id.
32 Information Bulletin from Xavier Becerra, Attorney General of California, to All Chiefs of Police, Sheriffs, and Executives of California Law Enforcement Agencies , Database Guidance – Senate Bill 54 (No. 18-10-CJIS, October 1, 2018), https://oag.ca.gov/sites/all/files/agweb/pdfs/info_bulletins/18 -10-cjis.pdf; see also California Values Act, 2017 Cal Stats. ch. 495 (2017).
individuals with criminal records. 33 Similarly, this Guidance provides language regarding the misuse of non-criminal information for immigration enforcement purposes.34 The language of this document allows for strong state sanctuary laws, uniquely including language on handling purchased data. The California Values Act’s Database Guidance states that “any data sharing agreements, memorandums of understanding, and/or contracts between law enforcement agencies and vendors/service providers should be updated to reflect policies that prohibit the use of non -criminal history information for immigration enforcement purposes,”35 which is a matter not typically regulated. Unfortunately, state provisions cannot regulate ICE’s use of commercial data because they are a federal agency. Still, this Act does serve as a model of a strong privacy law that would not only protect immigrants from collaboration between local authorities and ICE, but would also take the extra step of applying similar protections in the face of data bought through private contracts, closing ICE’s loophole.
B. General Data Protection Regulation
The European Union’s General Data Protection Regulation (GDPR)36 provides strong privacy law protections. The GDPR ensures that all personal data is obtained and processed fairly and lawfully, emphasizing transparency to the individuals whose data is being processed.37 Similarly, the GDPR requires a specific reason for collecting personal data and emphasizes that the data must only be collected for these specific purposes that are made known to the consumer.38 Additionally, the GDPR discourages storing large amounts of personal data for indefinite periods of time and requires that the data be discarded once it becomes unnecessary for the outlined purposes. 39
33 Id.
34 Id
35 Id.
36 Parliament and Council Regulation 2016/679, 2016 O.J. (L 119) 1 [hereinafter GDPR].
37 GDPR art. 5.
38 Id.
39 Id.
The strong privacy protections and punishments for non-compliance within the GDPR also apply to the sale of personal data. Selling personal data is not explicitly prohibited under the GDPR; however, companies that wish to sell private data must remain in compliance with this law. Furthermore, the GDPR requires that data collectors be transparent about what data is being collected and for what purpose, and stating that individuals' data will be sold. Data collectors must request consent to process an individual’s data, under which said consent must be “freely given, specific, informed and unambiguous” and the request for consent “clearly distinguishable from the other matters” and presented in “clear and plain language.” 40 Because there are severe consequences for non-compliance, the GDPR fosters strong legal protections for data privacy, and would therefore be an effective model on which the United States may create similar privacy laws. Under a U.S. law similar to the GDPR, companies would have to specify their intentions if they were to sell large sums of information to ICE, which would eliminate access to personal data for indefinite periods of time.
IV. INFORMATION, PRIVACY, AND CRIMINAL INVESTIGATIONS
Having previously reviewed two strong examples of privacy laws on a state and international level, this section will delve into the insufficiencies of current U.S. federal data regulation and privacy law. Specifically, this section will review the Freedom of Information Act, the Fourth Amendment, and Carpenter v. The United States , and demonstrate how these elements of United States privacy law and search and seizure law do not sufficiently prevent ICE from employing commercial data to evade collaboration with local authorities.
40 Id. art. 7.
A. Freedom of Information Act
The Freedom of Information Act allows the public to request records from federal agencies, including ICE. 41 While an important aspect of U.S. democracy is to inform citizens of federal agencies’ activities, this Act solely requires federal agencies to make information available when requested by the public. Unfortunately, the Act provides no grounds to challeng e the information obtained in these records. The challenges posed by the Freedom of Information Act provide a framework for assessing the legality and ethics of ICE’s collaboration with private data broker companies.
B. The Fourth Amendment and Electronic Surveillance
The Fourth Amendment protects Americans from unreasonable search or seizure, and requires a warrant based on probable cause. 42 The Supreme Court ruled in Katz v. United States (1967) that the Fourth Amendment extends to electronic surveillance and thus, law enforcement still needs a warrant to conduct this type of search. 43 However, if ICE purchases data from private data broker companies, it no longer falls under the category of a search and seizure, eliminating the need to obtain a warrant. In turn, this practice violates the spirit of the Fourth Amendment, which is to uphold privacy in the face of searches and seizures. The requirements to obtain a warrant from a judge typically include demonstrating probable cause as to why the search is justified, as well as a specific time period and target for the search.44 However, obtaining the data through a transaction eliminates the need for these steps, which is why ICE has been able to use this data unchecked up until this point. ICE is not required to provide a specific period for this electronic surveillance and is permitted to use the data in whatever manner they please. For this reason, the Fourth Amendment, to the extent it
41 Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250 (1966) (codified as amended at 5 U.S.C. § 552 (2016))
42 U.S. CONST. amend. IV.
43 Katz v. United States, 389 U.S. 347 (1967).
44 U.S. CONST. amend. IV.
covers electronic searches, has traditionally been insufficient to prevent ICE from using data purchased from private data broker companies.
C. Carpenter v. United States
In Carpenter v. United States (2018), the Court ruled that government agencies do need a warrant to obtain cell -site data over a period of seven days,45 which is an important means of legal challenge to ICE’s use of private data, which includes similar real-time location data. For this reason, although Carpenter does not directly pertain to immigration law, it does to the purchased data in question. As discussed in the previous paragraph, purchasing the data still negates the need for a warrant and evades the application of the ruling from this case. The limitations of Carpenter demonstrate how, as the world becomes increasingly digital, it becomes difficult for the law to keep up with violations of individual privacy online through the valuable data that everyday use generates.
The perceived limitations of Carpenter emphasize why it is important to assess other models of privacy law, as these systems keep pace with the increased vulnerability of individuals’ private information i n the digital world. However, Dori H. Rahbar from the Columbia Law Review is optimistic that Carpenter may be strong enough to challenge ICE’s use of real-time location data, should it appear before the Supreme Court. Rahbar argues that although neither the Fourth Amendment nor Carpenter regulate open market transactions, Carpenter may restrict the government’s ability to “buy its way around the Fourth Amendment . . . when purchased data is functionally equivalent to the location data cell-site location information in which Carpenter found individuals have an expectation of privacy.”46 This argument presents an interesting challenge to ICE’s purchase of data to facilitate deportation, as it derives its basis from the fact that the Court upheld
45 Carpenter v. United States, 138 S. Ct. 2206 (2018).
46 Dori H. Rahbar, Laundering Data: How the Government’s Purchase of Commercial Location Data Violates Carpe nter and Evades the Fourth Amendment , 122 COLUM. L. REV. 713, 713 (2022).
that cell-site location data normally needs a warrant for law enforcement agencies to obtain it.47 However, because this argument has yet to be made in the Supreme Court, one cannot state with certainty at this time that Carpenter provides strong enough privacy protections to halt the sale of realtime location data to ICE.
IV. CONCLUSION
Evidently, as demonstrated through the comparison between U.S. data protection laws and those set forth in the California Consumer Protection Act and the General Data Protection Regulation, federal laws are currently insufficient to maintain pace with the digital era. The sale of large information databases creates widespread fear among immigrants in sanctuary cities and states because of the increased risk of deportation as databases eliminate the need for ICE to collaborate with local authorities, thus creating a loophole around sanctuary laws.
When it comes to data privacy, the United States has generally taken a reactive rather than proactive approach, as they have relied on litigation rather than regulation similar to the CCPA and the GDPR. The internet enables large companies to collect and sell immense amounts of individual data, violating the privacy of citizens and non-citizens alike, which is why this model of litigation is no longer sufficient. When relying on litigation, one’s privacy must be violated in the first place for action to be taken. However, the United States has more robust privacy models to look towards both within and outside its borders, in the form of California state law and in the European Union, which take proactive approaches to data privacy. A similar approach in the United States would not only provide stronger protections for all of its residents, but also protect those who are most vulnerable to the sale of personal data, including immigrant populations who can no longer rely on sanctuary laws for protection.
This Note was edited by Briana Al-Omous
47 Id.
“IT’S
REWIND TIME”: EDUCATIONAL GERRYMANDERING AND RACIAL SEGREGATION
Aphrodite Stamboulos*
In 1974, the Equal Educational Opportunities Act (EEOA) was passed, promising equal educational opportunities for all American children regardless of race, sex, or national origin. The EEOA, along with many cases decided and federal legislation enacted in the sixties and seventies, served to strengthen desegregation and integrative efforts and ensure all American children received an equal education. However, resistance to desegregating schools, as well as the rollback of legislative and judicial support for integration and desegregation, has left the educational system vulnerable to educational gerrymandering. This Note will examine the concept of educational gerrymandering by first providing context to the educational system in the U.S. Additionally, this Note will examine Supreme Court cases and federal legislation, including the EEOA, that strengthened integrative and desegregation efforts. This Note will then define educational gerrymandering as well as how this practice is used to negatively impact educational opportunity via school funding and distri cting. This Note will provide possible solutions involving housing, districting, and funding reform to combat the adverse effects of this practice. Ultimately, this Note will argue that the practice of educational gerrymandering violates the EEOA.
* B.A. Candidate for History with a minor in African and African American Studies, Fordham College at Rose Hill, Class of 2025. It has been an honor to be a Staff Writer this semester for the Fordham Undergraduate Law Review. Thank you to my editor, family, friends, and the FULR Editorial Board, who have given me endless support and advice during the writing process.
I. INTRODUCTION
Despite Jefferson County Schools enrolling nearly nine times as many students as the Mountain Brook City School District in Alabama, the latter receives roughly five thousand dollars more in funding 1 Similarly, Oakland Unified School District has nearly twenty-five times as many students as Piedmont City Unified School District in California, yet Piedmont also receives roughly five thousand dollars more in funding per student. 2 Upon observing these districts closely, a pattern emerges. Jefferson County Schools and Oakland Unified are majority-minority districts, while their respective counterparts contain majority-white schools. Underfunded majority-minority schools and districts are not exclusive to California or Alabama. Schools across the U.S. are still racially segregated, and ones dominated by Black and Brown children remain underfunded. 3 These conditions are created by educational gerrymandering, a practice that “creates and worsens existing inequities surrounding access to educational opportunities and racial segregation in our public schools.”4
This Note will first give a brief overview of the history of education in the U.S. This Note will then engage with notable Supreme Court cases such as Brown v. Board of Education (1954) and Green v. County School Board
1 LA Johnson, PHOTOS: Where The Kids Across Town Grow U p With Very Different Schools, NATIONAL PUBLIC RADIO (July 25, 2019), https://www.npr.org/2019/07/25/739494351/separate -and-unequal-schools. 2 Id.
3 Emma García, Schools are Still Segregated, and Black Children are Paying a Price , ECONOMIC POLICY INSTITUTE (Feb. 12, 2020), https://www.epi.org/publication/schoolsare-still-segregated-and- black-children-are-paying-a-price/; Anna North, How School Funding can Help Repair the Legacy of Segregation , Vox (Feb. 17, 2021), https://www.vox.com/22266219/biden-eduation-school-funding-segregation-antiracistpolicy.
4 Isamar Garcia-Hernandez, Redistricting Watch: How Gerrymandering Upholds Segregation in Schools, LEAGUE OF WOMEN VOTERS (April 23, 2021), https://www.lwv.org/blog/redistricting -watch-how-gerrymandering-upholds-segregationschools.
of New Kent County (1968). Furthermore, this Note will analyze federal legislation, including the Civil Rights Act of 1964 and the Emergency School Aid Act of 1972 which strengthened integrative and desegregation efforts while paying specific attention to the Equal Educational Opportunities Act of 1974 (EEOA). This Note will then explain educational gerrymandering and how this practice is used to negatively impact the educational system through school districting and funding to argue that it does not comply with the EEOA. This Note will then provide solutions involving districting and funding reform to combat the adverse effects of educational gerrymandering that have already been put into practice by states and localities. In this section of the Note, more systemic legal solutions involving housing will also be discussed.
II. EDUCATION IN THE UNITED STATES
Education has been incredibly valued in the U.S. since the colonial period.5 By the nineteenth century, beliefs in the value of education evolved into several small movements for free, universal school education –specifically concentrated in northern states, such as New York and Massachusetts.6 Free and universal schooling was created with the advent of public schools which were funded by property taxes with the aim of increasing equality among economic classes. 7 It was not until 1918 that all fifty states made primary education compulsory,8 codifying the existing value of education across the nation. However, there was, and still is, no federally recognized right to an education.9
5 Sandra E. Black & Kenneth L. Sokoloff, Long-Term Trends in Schooling: The Rise and Decline (?) of Public Education in the United States , 1 HANDBOOK OF THE ECONOMICS OF EDUCATION 69, 74 (2006).
6 Id. at 72-74.
7 Id. at 78-79.
8 Deeptha Thattai, A History of Public Education in the United States , 1 JOURNAL OF LITERACY AND EDUCATION IN DEVELOPING SOCIETIES 2001, 2002 (2009).
9 Trish Brennan-Gac, Educational Rights in the States , 40 HUMAN RIGHTS 12, 12 (July 2014); see San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 4, 37 (1973) (“We have carefully considered each of the arguments supportive of the District Court’s finding that
A. The Courts and Public Schooling
One of the first cases to address segregation was Clark v. Board of County Commissioners (1868), in which the Iowa Supreme Court stated that “all the youths are equal before the law, and there is no discretion vested in the [school] board of directors or elsewhere, to interfere with or disturb that equality.”10 However, segregation persisted in other aspects of life and was supported by the Supreme Court with the infamous “separate but equal” doctrine in Plessy v. Ferguson (1896). Plessy allowed states to segregate races “as long as the [facilities for Black people] were substantially equal to those for Whites.”11 Despite this stipulation, separation was often unequal for Black people: In segregated schools, Black children would only have “new” supplies and facilities once they were no longer wanted b y white people; thus resulting in subpar facilities and decrepit supplies. Furthermore, these schools faced substantial challenges when trying to acquire funding from school boards for repairs and salaries. 12 Regardless of proximity to their homes, millions of Black children across the country had to attend all-Black schools.13 Plessy’s “separate but equal” doctrine lasted for nearly sixty years before Brown overturned the precedent: The Supreme Court in 1954 unanimously decided that “in the field of education, the doctrine of ‘separate but equal’ has no place.”14
Although Brown v. Board II (1955) required that students be “admit[ted] to public schools on a racially nondiscriminatory basis with all deliberate speed,” initial attempts to desegregate schools proved difficult, particularly
education is a fundamental right or liberty and have found those arguments unpersuasive.”).
10 Clark v. Bd. of Sch. Dirs., 24 Iowa 266, 277 (1868).
11 Robert L. Carter, Brown’s Legacy: Fulfilling the Promise of Equal Education , 76 J. NEGRO EDUC 240, 242 (2007); see Plessy v. Ferguson, 163 U.S. 537, 547 (1896).
12 Anthony M. Pellegrino et al., Historical Examination of the Segregated School Experience, 43 HIST. TCHR. 354, 364 (2013).
13 Camila Domonoske, After 50-Year Legal Struggle, Mississippi School District Ordered To Desegregate, NATIONAL PUBLIC RADIO (May 17, 2016), https://www.npr.org/sections/thetwo -way/2016/05/17/478389720/after -50-year-legalstruggle-mississippi-school-district-ordered-to-desegregate.
14 Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
in the South.15 In response to the Brown cases, many southern states implemented “‘freedom of choice’ desegregation plans, . . . designed largely to preserve racial segregation by putting the onus on Black families to enroll their children in white schools, an option unappealing to most Black families given the animosity” from whites.16 Consequently, in the South, schools were still heavily segregated, with over eighty percent of Black students in 1968 still attending majority-Black schools17 That same year, the Supreme Court heard Green v. County School Board of New Kent County , in which the plaintiffs claimed that the freedom of voice plan in New Kent County, Virginia was insufficient in integrating schools. The majority “req uired school districts to adopt more effective plans to achieve integration,” and so, following Green, schools took material steps towards integration. 18 A few years later, Swann v. Charlotte-Mecklenburg Board of Education (1971) was brought to the Supreme Court, in which the plaintiffs argued that more effective integration plans were necessary, as the vast majority of Black students still attended majority-Black schools.19 The Court agreed and permitted the use of busing to integrate school districts.20
B. The EEOA and Other Congressional Intervention
In 1974, the Equal Educational Opportunities Act was passed. However, it was not the first nor only national measure to promote desegregation, integration, and equitable funding in schools. Titles VI and IV o f the Civil Rights Act were the first of these measures. Title VI prohibited federallyassisted programs from discriminating against participants on the basis of
15 Brown v. Bd. of Educ., 349 U.S. 294, 301 (1955).
16 Sean F. Reardon & Ann Owens, 60 Years After Brown: Trends and Consequences of School Segregation , 40 ANN REV SOC 199, 202 (2014).
17 Id.
18 Id. at 202-203; see also Green v. Cty. School Bd. of New Kent Cty., 391 U.S. 430, 440 (1968). (“It [freedom of choice plans] is only a means to a constitutionally required end the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end.”).
19 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
20 Id.
race, or they would otherwise risk losing funding.21 Title IV enabled the Justice Department to “file enforcement actions that ‘materially further’ desegregation” as well as the Department of Education to “provide technical assistance” in the desegregation process. 22 Additionally, Title VI grew in importance “a year later when the Elementary and Secondary Education Act dramatically expanded educational funding.”23
The Emergency School Aid Act (ESAA), which was passed in 1972, acknowledged that integrative efforts and “improving the quality of education for all children” require additional funding th at districts often do not have.24 The Act had three goals: Use funding to eliminate the segregation and discrimination of minority children, “encourage the elimination, reduction, or prevention of minority group isolation,” and “aid children in overcoming the educational disadvantages of minority group isolation.”25 Just as with the Civil Rights Act and ESAA, this act is applicable anywhere in the U.S. affected by “conditions of [educational] segregation by race whether de jure or de facto.”26
On the heels of the ESAA was the EEOA, which in many ways functioned to expand the ESAA. The EEOA states “that all children enrolled in public schools are entitled to equal educational opportunity,”27 which can be seen as an expansion of the three goals of the ESAA. The Act permitted a “concentration of resources under the Emergency School Aid Act on educationally deprived students and to specify appropriate remedies for the orderly removal of the vestiges of the dual school system.” 28 The EEOA further expanded on the ESAA by ensuring that the funding used to remove
21 Title VI, Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; see Erica Frankenberg, Assessing the Status of School Desegregation Sixty Years After Brown, 2014 MICH ST L. REV. 677, 680 (2014).
22 Civil Rights Act of 1964, 42 U.S.C. § 2000c.
23 Frankenberg, supra note 21, at 677; see Elementary and Secondary Education Act, Pub. L. No. 89-10, 79 Stat. 27 (codified as amended in scattered sections of 20 U.S.C.).
24 Title VII, Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235, 354-371, 354 (repealed 1978).
“the vestiges of. . .dual school system[s]” would be available to school districts which eliminated segregation, expanded integration, and addressed funding gaps. The EEOA “also required school districts to intervene when they become aware of any discriminatory practices, including segregation.”29
III. WHAT IS EDUCATIONAL GERRYMANDERING?
Unfortunately, cases such as Milliken v. Bradley (1974), Board of Education v. Dowell (1991), Freeman v. Pitts (1992), Missouri v. Jenkins (1995), and more recently, Parents Involved in Community School v. Seattle School District No. 1 (2007), have hurt further attempts to integrate and foster diversity in schools.30 Furthermore, in 1978, Congress repealed the ESAA.31 This repeal has exasperated educational gerrymandering, a practice that “creates and worsens existing inequities surrounding access to educational opportunities and racial segregation in our public schools,”32 to turn back the clock on educational equity. Educational gerrymandering occurs either when “school systems choose to redraw attendance boundaries in such a way as to intensify racial segregation, often through the creation of oddly formed or discontinuous zones[,]” or when officials gerrymander school funding. 33
A 2019 study found that in the U.S., there is a twenty-three billion dollar education funding gap between mostly white and majority -minority school districts.34 Academic achievement translates directly into wages, which in
29 Ivory A. Toldson, 60 Years after Brown v. Board of Education: The Impact of the Congressional Black Caucus on the Education of Black People in the United States of America (Editor’s Commentary) , 83 J. NEGRO EDUC. 195, 1994 (2014).
30 Frankenberg, supra note 21, at 677.
31 See Education Amendments of 1978, Pub. L. No. 95–561, § 601(b)(2), 92 Stat. 2143, 2268.
32 Garcia-Hernandez, supra note 4.
33 Genevieve Siegel-Hawley, Educational Gerrymandering? Race and Attendance Boundaries in a Demographically Changing Suburb , 83 HARV. EDUC. REV. 580, 581 (2013); Derek Black, Educational Gerrymandering: Money, Motives, and Constitutional Rights, 94 N.Y.U. L. REV. 1385, 1390 (2019).
turn is tied to funding, thus leading to funding disadvantages. 35 On average, “white students score . . . 1.5 to 2 grade levels higher than black students.”36 Further, low funding is “associated with fewer resources, troublingly low graduation rates, less competition among peers, [and] less -qualified andexperienced teachers.”37 Despite the previously mentioned efforts to desegregate and integrate public schools, nearly seventy percent of Black students still attend schools where the majority of students are of color. 38 Elements of a dual school system remain and are intensified by funding disparities that together create unequal opportunities for children of color. The following subsections will demonstrate that the educational inequities that children of color in the U.S. face are becau se of inadequate funding and redistricting both which are the result of educational gerrymandering that violate the EEOA.
A. Districting
Where a child attends school largely depends on where he or she lives. Where district lines and attendance zones are drawn impacts where children go to school. In the past, it was common for these lines and zones to be used to create racial hegemony: “Despite the absence of de jure segregation, northern school districts often responded to the skyrocketing Black population in the 1940s and 1950s by achieving de facto segregation by drawing their school boundaries to maintain racial separate” schools. 39 In 2014, a professor at Southern Methodist University conducted a study on
35 C. Kirabo Jackson et al., The Effects of School Sp ending on Educational and Economic Outcomes: Evidence from School Finance Reforms 1 (NBER, Working Paper No. 20847, 2015), https://www.nber.org/system/files/working_papers/w20847/w20847.pdf.
36 Sean F. Reardon et al ., Is Separate Still Unequal? New Evidence on School Segregation and Racial Academic Achievement Gaps 23 (Stanford Center for Educ. Pol’y Analysis, Working Paper No. 19-06, 2019), https://cepa.stanford.edu/sites/default/files/wp19 -06v092019.pdf.
37 Siegel-Hawley, supra note 32, at 585.
38 García, supra note 3.
39 Meredith P. Richards, The Gerrymandering of School Attendance Zones and the Segregation of Public Schools: A Geospatial Analysis , 51 AM. EDUC. RSCH. J. 1119, 1122 (2014).
school attendance zones and districts to evaluate the extent to which segregation was persisting. Although the study found that intra-district zones had little impact on segregation, it was clear that there was still high segregation within districts.40 The study added that “gerrymandering is less segregative and often affirmative in districts under active desegregation orders,” while “districts that have been released from desegregation orders tend to be more segregatively gerrymandered than districts still subject to oversight.”41 A study from 2013 analyzing redistricting in 2008 in a Virginia school district found “that school officials responsible for the districts’ rezoning process failed to embrace the growing diversity of the school system and instead solidified extreme patterns of racial isolation within high school attendance areas.”42 Maintaining segregation is maintaining a “vestige of the dual school system,” and thus in violation of the EEOA.
Further, well into the twentieth century, housing policies such as redlining have prevented Black families from buying homes in “nicer” neighborhoods (usually suburban single-family homes) with high-performing public schools.43 Although the Fair Housing Act of 1968 and the Equal Credit Opportunities Act of 1974 prohibit redlining, minority families still face housing inequities.44 Families of color are often priced out of homes by local zoning laws that only allow more expensive single-family homes to be built residentially, as opposed to less expensive multiple-family homes.45 Moreover, white families, in what is known as “white flight”, will often move away from areas that are becoming populated by families of color. 46
40 Id. at 1150.
41 Id. at 1150-1151.
42 Siegel-Hawley, supra note 33, at 582.
43 Lindsey M. Burke & Jude Schwalbach , Housing Redlining and Its Lingering Effects on Education Opportunity , HERITAGE FOUND (Mar. 11, 2021), https://www.heritage.org/education/report/housing -redlining-and-its-lingering-effectseducation-opportunity.
46 Michael J. Dumas, Against the Dark: Antiblackness in Education Policy and Discourse,
55 THEORY INTO PRACTICE 11, 16 (2016).
One of the first cases to address segregation as it relates to school zoning and districting was Keyes v. School District No. 1 (1973). The plaintiffs alleged that a Denver school district had been engaging in purposeful school segregation in their district. The lower courts did not find these actions to be purposefully segregative, but the Supreme Court disagreed. The majority held “that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious.”47
In Milliken v. Bradley (1974), the petitioners alleged that Detroit, in its school districting plan, maintained a racially segregated public school system. Although the lower courts agreed and ordered the Board to provide desegregation plans, the Supreme Court reversed the decision.48 The majority stated that the plans ordered by the lower courts were “based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts affected the discrimination found to exist in the schools of Detroit.”49 The Court also “prohibited crossing urban/suburban school district boundaries unless suburban schools could be found at fault, which presented formidable challenges for meaningful school desegregation.” 50 It is still difficult to pursue “meaningful school desegregation” through the legal system, as shown by more recent cases like Spurlock v. Fox (2013), which was brought to the Sixth Circuit Court of Appeals. In 2008, a Tennessee board of education decided to alter the current school assignment zones from the formerly “mandatory noncontiguous transfer zones, meaning that the existing system whereby students in racially isolated geographical zones were bused to racially diverse schools . . . in noncontiguous zone[s].”51 The plaintiffs alleged the new plan “eliminated the desirable practice of being bused to a good, racially diverse school and replaced it with two inferior choices: staying in a bad, racially isolated neighborhood school or being
47 Keyes v. School District No. 1, 413 U.S. 189, 208 (1973).
48 Milliken v. Bradley, 418 U.S. 717 (1974).
49 Id. at 752.
50 Terrance Green & Mark Gooden, The Shaping of Policy: Exploring the Context, Contradictions, and Contours of Privilege i n Milliken v. Bradley, Over 40 Years Later, 118 TEACHERS COLL REC 1, 10 (2016).
bused to a bad, racially diverse school,” violating the Equal Protect ion Clause.52 The Sixth Circuit ruled in favor of the defendants.
B. Funding
Historically, there has been a clear disparity in funding between majorityminority schools and majority-white schools. This disparity can be traced back to the mid-nineteenth century as “[e]ducation for Blacks in the U.S. has been underfunded since its inception after the end of slavery.” 53 The federal government and private funding during the latter half of the nineteenth century attempted to solve this funding disparity, but to no avail.54 Furthermore, these funding disparities were not unique to de jure segregated schools in the South, but also to northern de facto segregated schools. 55
Both funding disparities and de facto segregated schools have roots in housing: In the U.S., property taxes primarily fund public schools, which, since localities control property taxes, may be manipulated to suit the motivations of those who control them.56 By effect, many southern states applied a lower property tax rate in predominantly Black areas during the Reconstruction Era. Because the tax rates were not adjusted thereafter, it created “a negative effect on public school funding and therefore education for blacks.”57 Additionally, people of color are more likely to be impoverished and, as a result, receive less school funding than their white
52 Id
53 John A. Gibson, K–12 School Funding and Resource Allocation: The Effect of White Flight on Education Funding Among Public School Districts in Rust Belt States 1 (Ph.D. dissertation, Northern Illinois University) (Dec. 2010).
54 Id. at 2-8.
55 Dick Startz, The Achievement Gap in Education: Racial Segregation Versus Segregation by Poverty: What would Dr. King Say? , BROWN CENTER CHALKBOARD (Jan. 20, 2020), https://www.brookings.edu/blog/brown -center-chalkboard/2020/01/20/the-achievementgap-in-education-racial-segregation-versus-segregation-by-poverty/.
56 Graziella Bertocchi & Arcangelo Dimico, Slavery, Education, and Inequality , 70 EUR. ECON. REV. 197, 207 (2014); Derek W. Black & Axton Crolley, Legacy of Jim Crow still affects funding for public schools, THE CONVERSATION (April 15, 2022), https://theconversation.com/legacy -of-jim-crow-still-affects-funding-for-public-schools181030.
57 Bertocchi & Dimico, supra note 56, at 207.
counterparts.58 Many have gone “to great lengths to create districts or schoolassignment plans that concentrated whites in the most heavily resourced schools, and relegated Black children to underfunded schools with less experienced teachers and crumbling physical infrastructures.” 59 By doing so, an unequal educational experience is given to Black children, thus violating the EEOA.
Unfortunately, school finance litigation tied to raci al discrimination is limited by San Antonio Independent School District v. Rodriguez (1973). The majority determined “the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory.”60 Thus, “existing disparities in funding between school districts that resulted from Texas’s reliance on local property taxation were permissible.”61 Rodriguez was part of what is known as the first wave of school finance litigation, which relied on the Fourteenth Amendment’s Equal Protection Clause.62 The second wave changed tactics and instead relied upon “state equal protection clauses . . . [and plaintiffs claimed] that education was a fundamental right, thus triggering the strict scrutiny standard.”63 However, “courts grew resistant to this legal theory,” and so in “the third wave, plaintiffs asserted that states have provided insufficient resources either to achieve minimal educational outcomes or to prepare students” to contribute positively to society. This method has been incredibly successful with plaintiffs “winning two-thirds of cases.”64
58 John Creamer, Inequalities Persist Despite Decline in Poverty For All Major Race and Hispanic Origin Groups, U.S. CENSUS BUREAU (Sept. 15, 2020), https://www.census.gov/library/stories/2020/09/poverty -rates-for-blacks-and-hispanicsreached-historic-lows-in-2019.html; Black, supra note 33, at 1392.
59 Dumas, supra note 46, at 16.
60 San Antonio Indep. Sch. Dist , 411 U.S. at 19.
61 Preston C. Green et al., School Finance, Race, and Reparations , 27 WASH & LEE J. CIV RTS & SOC JUST. 483, 499 (2021).
62 Id. at 505.
63 Id.
64 Id.
IV. SOLUTIONS
There are a few states who have attempted to reduce or eliminate the effects of educational gerrymandering. Implementing these solutions on a national scale will help to curtail current and further violations of the EEOA. Some states and localities have repurposed gerrymandering to create more diverse school districts through racially conscious school zoning.65 However, adjusting attendance zones in this manner still permits evasive practices from white households. Nevertheless, segregated housing is still commonplace, which does not make racially-conscious attendance zone adjustments feasible nor effective. 66 States and localities have also used intradistrict policies which use school choice “to promote racial and economic integration across district lines.”67 These policies have been successful in promoting “greater equity between school districts” and reducing “economic and racial isolation,” as well as eliminating white exit plans from certain districts because there is nowhere for white families to go.68
States and cities can also alter their funding strategies to increase equality among students. Funding strategies and methods that states have already successfully employed include weighted student funding, already used in many states, as well as the local control funding formula, used in California.69 Under the former, “districts give low-income students and other at-risk populations extra ‘weights’ so that additional funding is provided above the base per-pupil level.”70 However, the success of this method is dependent on “the types and sizes of weights used, the share of total funding distri buted
65 See Richards, supra note 37, at 1122.
66 Jim Hilbert, School Desegregation 2.0: What is Required to Finally Integrate America's Public Schools, 16 NW. J. HUM. RTS. 92, 111 (2018).
67 Kara S. Finnigan & Jennifer Jellison Holme, Regional Educational Equity Policies: Learning from Inter-District Integration Programs, NAT COAL ON SCH DIVERSITY 1, 4 (Brief No. 9, Sept. 2015), https://files.eric.ed.gov/fulltext/ED571630.pdf.
68 Id. at 4; Hilbert, supra note 66, at 113.
69 Meg Benner et al., A Quality Approach to School Funding: Lessons Learned From School Finance Litigation , CENTER FOR AMER PROG 1, 22 (2018).
70 Id.
through the formula,” and whether or not the average teacher salary is used.71 The latter is “a formula that is not based on property taxes and provides additional resources for students in need of additional supports,”72 thus helping to eliminate issues concerning property taxes that fund schools.
Outside of education, more systemic legal solutions such as amending current zoning laws can be employed to combat the effects of educational gerrymandering. As previously stated, zoning laws can price lower-income families out of certain neighborhoods. Furthermore, many families are willing to pay a premium to be in a high-quality school district, raising prices even further in some neighborhoods.73 By effect, “neighborhoods [are] segregated by income level within school districts.”74 Looser “zoning regulations would [both] reduce the housing cost gap and narrow the school test-score gap by four to seven percentiles.” 75 Thus, changes to zoning laws can be a long-term solution to educational gerrymandering.
V. CONCLUSION
Educational gerrymandering, whether through funding discrepancies or segregation, has violated the Equal Educational Opportunities Act of 1974, by turning back the clock on educational civil rights. The students who suffer the most are children of color who are not afforded as many educational opportunities as their white counterparts. This discrepancy highlights how in the nearly seventy years since Brown, the U.S., still enables segregation and inconsistent funding in education. In fact, there have been m any attempts to skirt or minimize Brown’s impact, despite other court cases and federal legislation attempting to support it. To combat this, changes need to be made
71 Jesse Levin et al., U.S. DEP’T OF EDUCATION, GS-00F-347CA, Districts’ Use of Weighted Student Funding Systems to Increase School Autonomy and Equity: Findings From a National Study xvi (2019).
72 Benner et al., supra note 69, at 15.
73 Ann Owens, Inequality in Children’s Contexts: Income Segregation of Households With and Without Children , 81 AM. SOC’Y. REV. 549, 565-66 (2016).
74 Kristen E. Murray, The Problem of Intradistrict Inequity , 5 BELMONT L. REV 85, 89 (2018).
75 Id. at 89.
to district and attendance zones to create more diverse schools. The school funding gap between white and minority children must also be bridged, and less restrictive zoning laws put in the books. However, it remains to be seen what, if any, progress is to be made on this front. * * *
This Note was edited by Daymara Rodrigues
UNITED STATES V. VAELLO-MADERO: THE SUPREME COURT’S WRONGFUL INTERPRETATION THAT HAS COST PUERTO RICANS THE RIGHTS THEY DESERVE
Aoife Nurse*
Puerto Ricans, despite being U.S. citizens, are routinely underrepresented politically and neglected economically. However, the United States government asserts that Puerto Ricans are not eligible for certain benefits because of their tax status, and as long as Congress displays a rational basis for such legislative initiatives, no constitutional rights are violated. The most recent example of said initiatives occurred in United States v. Vaello-Madero (2020), where the Supreme Court decided that Puerto Rican citizens’ denial of Social Security income benefits is not in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. This Note will argue against the Court’s decision, maintaining that the Court’s wrongful interpretation of the Fifth Amendment and prior cases has cost Puerto Rican citizens access to life -saving Social Security benefits that they would otherwise qualify for if not for their residency status. This Note will examine the arguments and rationale of previous cases cited by the Court, as well as analyze how the application of the Rational Basis Review scrutiny test is a faulty basis for their decision. Furthermore, this Note will offer additional cases that oppose those cited by the Court in its opinion. This N ote maintains that because of the decision reached in United States v. Vaello-Madero, Puerto Rican citizens face irrational and arbitrary classification as United States Citizens that violates the equal protection component of the Fifth Amendment’s Due Pro cess Clause.
* B.A. Candidate for Political Science, Fordham College at Rose Hill, Class of 2025. This Note would not have been possible without the Fordham Undergraduate Law Review Editorial Board, especially Jonathan Katz, for whose support and guidance I am very grateful.
I. INTRODUCTION
In October 2017, President Donald Trump stood before a crowd of Puerto Ricans whose country was recently torn apart by Hurricane Maria. 1 Many who were without power, water, and had lost their homes watched as the President of the United States tossed paper towels into the crowd of a relief center.2 Many were taken aback by his disregard for the needs of Puerto Rican citizens.3 Unfortunately, Puerto Ricans are no strangers to feeling underrepresented and overlooked by the United States’ federal government. Since its acquisition as a United States territory in 1898, Puerto Ricans have fought tirelessly to be recognized as citizens of the United States who have the same rights and responsibilities afforded to those on the mainland.4 In recent years and in the face of natural disasters and federal tax provisions, Puerto Ricans have seen substantial economic drawbacks. 5 While Puerto Ricans are legally United States citizens, they are underrepresented politically and not afforded the same benefits as those living on the mainland.6
A recent example of this disregard can be seen in the Supreme Court’s decision in United States v. Vaello Madero (2020), a case concerning the Supplemental Security Income Program (SSI). Established in 1972, SSI provides cash benefits to those who are sixty-five and older and living with disabilities.7 These benefits are available to United States citizens living in the fifty states, as well as those in the District of Columbia and the Northern Mariana Islands but not to those living in Puerto Rico.8 Interestingly, the
1 The Guardian, Trump throws paper towels into crowd in P uerto Rico , YOUTUBE (October 4, 2017) https://www.youtube.com/watch?v=kEe7_zgZbuI.
2 Id
3 Id
4 Lani E. Medina, An Unsatisfactory Case of Self-Determination: Resolving Puerto Rico’s Political Status, 33 FORDHAM INT’L L.J. 1068–1070 (2010).
5 Aja Espinosa, In the Eye of a Hurricane There Is Quiet: Puerto Rico’s Fight for Aid After Hurricane Maria, 10 GEO. WASH. J. ENERGY & ENV’T L. 91, 93–95 (2020).
6 Pedro A. Malavet, Puerto Rico: Cultural Nation, American Colony , 6 Mich. J. Race & L. 1, 30–32, 38–40 (2000).
7 Social Security Income Program, 42 U.S.C. §§ 1381-1385.
8 Id.
Northern Mariana Islands is the only territory outside of the fifty states and the District of Columbia whose residents qualify for SSI benefits. 9 The legal basis for their qualification was established in the Covenant to create a Commonwealth of the Northern Mariana Islands. 10 Section 502(a) of Article V of the Covenant states that the Social Security Act will apply to the Northern Mariana Islands as it applied to the United States. 11 During negotiations, counsel for the Northern Mariana Islands chose to debate the political status of the islands with the United States 12 to obtain federal laws that would benefit its residents financially. 13 However, the Supreme Court argued that their decision to deprive Puerto Ricans of the SSI benefits did not violate the Fifth Amendment’s equal protection component of the Due Process Clause.14 The majority opinion affirmed that because of Puerto Rico’s exemption from most federal income, estate, and excise taxes, Congress had a rational basis for their exclusion, and therefore was not discriminatory.15
This Note will provide background information on Puerto Rico as a United States territory and what citizenship looks like for its citizens. Additionally, this Note will offer an explanation of the Fifth Amendment's Due Process Clause, specifically touching on the equal protection component, and how rational basis review is utilized by the Supreme Court. Continuing, this Note will present the facts of the case of United States v. Vaello-Madero and explain the rationale behind the Court’s verdict, citing two precedent cases crucial to the verdict. Furthermore, this Note will examine several cases that counter those cited by the Court offering a different perspective of rational basis review as it is related to the rights of Puerto Rican citizens. Lastly, this Note draws upon the decision reached in
9 Id.
10 Joint Resolution to approve the “Covenant to Establish a Commonwealth of Northern Mariana Islands in Political Union With the United States of America”, and for other purposes, P.L. 94-241, 90 Stat. 263 (1976).
11 90 Stat. at 268.
12 Id.
13 Id.
14 United States v. Vaello-Madero, 142 S. Ct. 1539 (2022).
15 Id.
Martínez v. United States HHS (2020) to bring together the government’s reasoning for the denial of SSI benefits to Puerto Ricans, the rational basis review, and the distinction between political units and individual citizens. This Note will ultimately argue that the Court’s reasoning for not providing benefits of the SSI was flawed, specifically pertaining to their interpretation of the equal protection component of the Fifth Amendment’s Due Process clause and its “rational differential treatment” of Puerto Rican citizens as assessed by the Rational Basis Judicial Review Test.
II. PUERTO RICO’S ESTABLISHMENT AS A UNITED STATES TERRITORY
A. The Treaty of Paris (1898)
The Treaty of Paris was signed on December 10, 1898, signifying the end of the Spanish-American War.16 Article II of the treaty states that “Spain cedes to the United States the island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones,” thereby placing Puerto Rico under the control of the U.S.17
B. Organic Act of 1900
After acquiring the Puerto Rico islands, the U.S. needed to create a standard of laws and procedures for how the territory would be governed. The Organic Act of 1900, also known as the Foraker Act, was signed on April 2, 1900 by President McKinley and established a Puerto Rican government administered by the United States federal government and Congress. 18 The Foraker Act of 1900 also established that Puerto Rican residents are United States citizens. Section 7 of the Act states that, “all inhabitants [. . .] who were Spanish subjects on the eleventh day of April, eighteen hundred and ninety -
18 Organic Act of 1900, Pub. L. 56–191, 31 Stat. 77.
nine, and then resided in Porto Rico [sic], and their children born subsequent thereto, shall be deemed and held to be citizens of Porto Rico ( sic), and as such entitled to the protection of the United States.” 19 As United States citizens, it is to be understood that no law shall be enacted that would deprive them of life, liberty, or property without due process of law. 20 Furthermore, as United States citizens, they cannot be deprived of their right to equal protection under the law.21
III. THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE
A. Equal Protection and Due Process
The question before the Supreme Court in United States v. VaelloMadero was whether or not the denial of SSI benefits to Puerto Rican citizens violates their right to equal protection as established under the due process clause of the Fifth Amendment. It is important, therefore, to understand due process under the Constitution.
The due process protections were established by the Fifth and Fourteenth Amendments of the Constitution, and affirm that state and federal governments must follow all laws, policies, and procedures properly before they can legally deprive someone of life, liberty, or property. 22 Pertaining to equal protection, the Fifth Amendment establishes that the government cannot enforce laws that are based upon arbitrary differences such as race, class, or gender that would create discriminatory classifications of people that are not relevant to the government’s objective in enacting the law. 23 As Associate Justice Sonia Sotomayor stated in her dissenting opinion in United States v. Vaello-Madero, “[e]qual protection does not foreclose the Government’s ability to classify persons or draw lines when creating and
19 Id. § 7, 31 Stat. at 79.
20 Id.
21 Id.
22 U.S. CONST. amend. V, § 4.
23 Id.
applying laws, but it does guarantee that the Government cannot base those classifications upon impermissible criteria or use them arbitrarily to burden a particular group.”24
B. Rational Basis Review
Sotomayor’s dissent in Vaello-Madero demonstrates how the Supreme Court misused the rational basis review judicial test in its majority opinion. Rational basis review is a judicial review test used by the Court to determine the constitutionality of a law or statute specifically as it pertains to assessing whether or not legislation is in violation of Equal Protection.25 Under rational basis review, government action needs to prove an advancement of legitimate government interests, be rationally related to advancing those interests, and not impose irrational burdens on individuals or classes of individuals. 26 Overall, rational basis review is the vehicle through which judicial scrutiny of laws and statutes regarding equal protection is applied.
IV. UNITED STATES V. VAELLO-MADERO
A. The Facts of the Case
Jose Luis Vaello-Madero was born in Puerto Rico in 1954.27 In 1985, he moved to New York, where he received benefits under the SSI Program 28 In 2013, he moved back to Puerto Rico while continuing to receive said benefits.29 Three years later, he was informed that his benefits would be terminated because he moved back to Puerto Rico.30 Additionally, the federal government was suing him in a Puerto Rican federal court for the
24 Vaello-Madero, 142 S. Ct. at 1559 (Sotomayor, J., dissenting).
25 U.S. CONST. amend. V, § 4; see also U.S. CONST. amend XIV. § 1.
26 R. Randall Kelso, Justifying the Supreme Court's Standards of Review , 52 ST MARY’S L. J. 973, 977-978 (2021).
27 Vaello-Madero, 142 S. Ct. at 1558 (Sotomayor, J., dissenting) .
28 Id. at 1542.
29 Id.
30 Id.
approximate $28,000 he had received in benefits between 2013 and 2016. 31 The district court and the Court of Appeals for the First Circuit sided in favor of Vaello-Madero. The courts concluded that his exclusion from the SSI program because he was not living in one of the fifty states was a violation of Equal Protection.32 The question presented to the Supreme Court, then, was whether Equal Protection required Congress to make Supplemental Security Income benefits available to residents of Puerto Rico to the same extent that they are available to residents of the States.33
B. The Supreme Court’s Decision
The Court reached a decision of 8-1 against Vaello-Madero, with two concurring opinions and one dissenting.34 The Court’s decision reversed that of the district and appellate courts, which had sided with Vaello -Madero.35 The decision, delivered by Associate Justice Brett Kavanaugh, stated that Congress did not violate the Fifth Amendment's equal protection component of the Due Process clause.36 Justice Kavanaugh referenced the Constitution, long-standing historical practice, and the Court’s precedent as the primary reasons for this verdict; 37 Kavanaugh further argued that Congress has the authority to establish rules and regulations in regards to territory of the United States as established by the Territories Clause in Article IV, Section 3, Clause 2 of the Constitution.38 For that reason, Congress has the authority to decide how to structure federal taxes and benefits for the territories. 39 Kavanaugh elaborated that just as not every tax is extended to Puerto Rico, not every benefit is extended to Puerto Rico, and Congress has the right to do so as
31 Id. at 1540, 1542.
32 Id. at 1540.
33 Id. at 1541.
34 Id
35 Id.
36 Id.
37 Id. at 1541–544.
38 Id. at 1541–542.
39 Id. at 1542–543.
established by the Territories Clause. 40 Continuing, Kavanaugh explained that not only are there enumerated powers that support the government’s actions towards Puerto Rico, but there is also a longstanding historical practice that has been legitimized through precedent cases that establish a rational basis for the differential treatment of Puerto Ric an citizens.41 Kavanaugh referenced Califano v. Torres (1978) and Harris v. Rosario (1980) as precedent for the Court’s ruling.42
C. Califano v. Torres
Califano v. Torres was decided in 1978 shortly after the federal government created the SSI program.43 Separate actions instituted in the District Court for Puerto Rico questioned whether the provisions of the SSI program that limited benefits to residents living in one of the fifty states or the District of Columbia violated the constitutional right to travel. 44 The question of travel is raised when examining if citizens of the United States have the right to interstate travel, which ensures that the rights and benefits enjoyed in one state are applicable to others. 45 However, upon moving to Puerto Rico, those bringing the suit lost their right to SSI benefits that they had received while residing in the United States.46 Similarly to VaelloMadero, the plaintiffs in Califano had previously lived in states like Connecticut, Massachusetts, and New Jersey. However, upon moving to Puerto Rico, they were ineligible for SSI benefits. 47
Torres v. Mathews the first in a string of cases challenging SSI ruled in favor of the plaintiff in the Puerto Rico District Court, claiming that the geographic limitations of the SSI program were unconstitutional.48 Cases that
40 Id. at 1543.
41 Id.
42 Id.
43 Califano v. Torres, 435 U.S. 1 (1978).
44 Torres v. Mathews, 426 F. Supp. 1106 (D.P.R. 1977).
45 U.S. CONST. amend. V, § 4.
46 Califano, 435 U.S. at 2.
47 Id.
48 Mathews, 426 F. Supp. at 1113.
followed relied upon Torres v. Mathews as precedent. The Supreme Court, however, reversed these judgements in Califano v. Torres, claiming that the constitutional right to travel does not ensure a person's right to receive benefits under the SSI program. 49 The Court explained that the right to interstate travel does not require that a person traveling to Puerto Rico must be provided with benefits superior to those of other Puerto Rican residents simply because the newcomer had enjoyed those benefits in the state from which they came.50 Furthermore, the Court explained that the District Court’s decision affirmed that the newcomer who traveled to Puerto Rico would receive benefits superior to other Puerto Rican residents, thus enforcing a doctrine that the constitutional right to travel has never upheld. 51 This doctrine would have broader implications, requiring states to continue to pay benefits to residents who had moved to another state indefinitely. 52 The Court applied the judicial test of rational basis review, and found that because of Puerto Rico’s tax status and the limited application of interstate travel, the decision to exclude Puerto Ricans from the SSI Program was constitutional.53
D. Harris v. Rosario
The second case that the Supreme Court cited as precedent to deny SSI benefits to Vaello-Madero was Harris v. Rosario, which was decided in 1980.54 This case was a class action lawsuit brought by Puerto Rican recipients of the Aid to Families with Dependent Children program (AFDC), who claimed that their Fifth Amendment right to equal protection under the Due Process Clause was violated because they were receiving less benefits than those living in the States.55 The suit was brought forth in the United States District Court for the District of Puerto Rico.56 The district court sided
49 Califano, 435 U.S. at 5.
50 Id. at 4.
51 Id
52 Id.
53 Id. at 5.
54 Harris v. Rosario, 446 U.S. 651 (1980).
55 Id.
56 Id.
with the plaintiffs, stating that receiving less benefits under the AFDC program was unconstitutional under the Fifth Amendment. 57 The Supreme Court reversed this decision, stating that it was not in violation of the Fifth Amendment’s equal protection component of the Due Process Clause because there was rational basis for excluding them from receiving the same number of AFDC benefits as those living in the fifty states.58
The Court cited three reasons for the differential treatment of Puerto Rican citizens: Firstly, Puerto Rican citizens did not contribute to the Federal Treasury; secondly, to treat Puerto Rico as a state under the statute would be costly; lastly, greater SSI benefits could disrupt Puerto Rico’s economy.59 The majority opinion cited Califano v. Torres as precedence for the ruling, stating that the considerations made in Califano established a similar statutory classification that was rationally grounded. Seeing n o reason to depart from the conclusion in Torres, the Court affirmed that differential treatment of Puerto Rican citizens was rational, and therefore constitutional.60
V. THE SUPREME COURT’S FLAWED APPLICATION OF RATIONAL BASIS REVIEW AND THE EQUAL PROTECTION COMPONENT OF THE FIFTH AMENDMENT’S DUE PROCESS CLAUSE
A. Rational Basis Review’s Inconsistent Application
Extensive debate surrounds the effectiveness of rational basis review, with many claiming that the judicial test is practically meaningless.61 The Supreme Court has applied it inconsistently over the years, rendering it a “toothless” form of judicial review.62 Despite this, the Court chose to make it
57 Id
58 Id. at 651–652.
59 Id. at 589.
60 Id
61 Katie R. Eyer, The Canon of Rational Basis Review , 93 NOTRE DAME L. REV 1317, 1318–1324 (2018).
62 Alfonso Madrid, Rational Basis Review Goes Back to the Dentist’s Chair: Can the Toothless Test of Heller v. Doe Keep Gays in the Military? , 4 TEMP. POL. & CIV. RTS. L. REV 167 (1994).
a vital part of their argument in justifying the dismissal of SSI bene fits to Puerto Rican Citizens in Vaello-Madero. 63 However, because of the test’s inconsistent application, it cannot be used to establish a precedent of justifiable differential treatment; which is evident through a number of cases that display varying applications of rational basis review rendering it a useless justification for denying Puerto Ricans equal access to SSI benefits. Furthermore, the denial of such benefits to Puerto Ricans has created an unfounded distinction between those living on the mainl and and those residing in Puerto Rico that, based on the reasoning of rational basis review, does not have any legal basis.
B. Department of Agriculture v. Moreno
Department of Agriculture v. Moreno (1973) demonstrated that a legislative classification must be sustained if the classification itself is rationally related to legitimate governmental interests.64 Jacinta Moreno lived with Ermina Sanchez and his three children, though they were not relate d.65 Even though Moreno contributed to the household expenses and satisfied the income requirements for the federal food stamp program, she and the Sanchez’s were denied the program’s benefits, becauseSection 3 of the Food Stamp Act of 1964 amended in 1971 prohibited households with unrelated members from receiving food stamp benefits.66 Moreno, along with other households that were denied benefits under Section 3, challenged the statute in the United States District Court of the District of Columbia, claiming that it was in violation of their Fifth Amendment’s Due Process Right to Equal Protection.67 The District Court held that Section 3 violated the Fifth Amendment, and the case was brought before the Supreme Court on appeal by the United States government. 68 The question before the Court was
63 Vaello-Madero, 142 S. Ct. at 1543.
64 United States Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973).
65 Id. at 531
66 Id. at 532-533.
67 Id. at 533.
68 Id. at 533.
whether Section 3 of the Food Stamp Act of 1964 violated the Equal Protection Component of the Due Process Clause of the Fifth Amendment.69 The Court upheld the district court’s decision, affirming that the "unrelated person" provision of Section 3 of the amended Act created an irrational classification in violation of the Equal Protection Component, creating two classes of households one where all members were related and another where they were not.70
In this case, the legal distinction between households of related persons and unrelated persons is irrelevant to the stated purposes of the Food Stamp Act of 1964, therefore making Section 3 irrational and in violation of citizens’ Fifth Amendment rights. Similarly, the Court’s exclusion of Puerto Rican residents creates two distinct classifications of United States citizens: Those whose residency status is one of the fifty states and those who live outside of these territories, which has no rational purpose related to the government's interests. Department of Agriculture v. Moreno established that classifications are only to be upheld if they are related to a legitimate government interest; otherwise, they are in violation of the Equal Protection Component of the Fifth Amendment’s Due Process Clause. Therefore, excluding Puerto Ricans from the SSI program whose main objective is to help disabled citizens over 65 fails the rational basis differential test.
C. Schweiker v. Wilson
Schweiker v. Wilson (1981) is another case that establishes an outline for the application of rational basis review when assessing a law or a statute’s constitutionality with respect to the Fifth Amendment. In this class action suit, a group of mentally ill persons challenged § 1611(e)(1)(B) of the Social Security Act, which renders patients who reside in certain medical institutions receiving Medicaid funds for their care eligible for a reduced amount of SSI, notwithstanding the general exclusion of inmates of public institutions from SSI under § 1611(e)(1)(A).71 As individuals under the age
69 Id. at 529.
70 Id. at 529.
71 Schweiker v. Wilson, 450 U.S. 221, 224-25 (1981).
of 65, the plaintiffs were ineligible for Medicaid and thus could not avail themselves of this exception despite living in mental hospitals . 72 The Secretary of Health and Human Services sought the Supreme Court’s review of the decision reached in the United States District Court for the Northern District of Illinois, which held that this section of the Social Security Act was unconstitutional as it was in violation of equal protection.73 The District Court reasoned that the classification of mentally ill and non -mentally ill persons could not withstand judicial scrutiny because it did not have any direct relation to the legislative objectives of the Social Security Act. 74 The Supreme Court reversed the decision of the District Court, stating that § 1611(e)(1)(A) of the Social Security Act was not in violation of the Fifth Amendment’s Due Process right to equal protection. They argued that Congress’ denial of SSI benefits to those in public mental institutions without Medicaid who are between the ages of twenty-one to sixty-four held legitimate legislative goals.75
The Supreme Court reasoned that the “legitimate legislative goals” are rational because the Court was drawing a distinction between residents in public institutions receiving medicaid funds and those in institutions not receiving these funds.76 The distinction was not being drawn between mentally ill and non-mentally ill recipients.77 Therefore, the Social Security Act does not disproportionately burden nor impact mentally ill, publiclyinstitutionalized persons. In this case, the distinction being made demonstrates a clear legislative objective, and rational basis review is applied to affirm the constitutionality of a law or statute.
72 Id. at 225
73 Id. at 229.
74 Id. at 229–230.
75 Id. at 238–239.
76 Id. at 231.
77 Id. at 232–233.
D. Attorney General of New York v. Soto-Lopez
A New York State constitutional provision that is enforced through a state statute provides civil service employment preference (known as the veterans’ preference) in the form of points added to examination scores of civil service tests to New York residents who (1) are honorably discharged veterans of the United States Armed Forces, (2) served during a time of war, and (3) were residents of New York when they entered military service.78 This provision and statute was challenged by two Puerto Rican veterans who passed their civil service examinations but were denied the veterans’ preference on the basis that they were residents of Puerto Rico when they joined the military.79 The question posed before the Court was whether a preference in civil service employment opportunities offered by the state solely to resident veterans who lived in the state at the time they entered the military violated the constitutional rights of those who lived outside the state when they entered the military.80 This case brought into question equal protection and the right to travel of veterans, who otherwise would meet every requirement needed to obtain these benefits.
The Supreme Court held the federal district court’s decision that New York State's limit on veterans’ preference to only veterans who were residents of the state when they entered the military was unconstitutional. 81 As established in Article V, Section 6 of the New York State Constitution and New York State Civil Service Law, veterans’ preference was granted to those who were residents of New York when they entered the military. 82 The Supreme Court found, however, that this distinction did not provide a compelling enough interest to bar otherwise eligible veterans who were residents outside of New York upon entering the military.83 While the Court’s decision was mainly based on veterans' rights to migrate, it is because of this
78 N.Y. CONST. art. V, § 6, see also N.Y. Civ. Serv. Law § 85.
79 Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986).
80 Id. at 899.
81 Id. at 912.
82 N.Y. CONST. art. V, § 6, see also N.Y. Civ. Serv. Law § 85.
83 Soto-Lopez, 476 U.S. at 912 (1986).
equal protection violation that the law and constitutional provision were held to a high degree of judicial scrutiny, and there was no rational basis for this distinction made between veterans. Attorney General of New York v. SotoLopez (1986) is another example of rational basis review and Puerto Ricans residency status acting as a barrier to benefits for which United States citizens who reside in the fifty states are automatically eligible.
VI. PUERTO RICO’S STATUS VERSUS THAT OF INDIVIDUAL CITIZENS
A. Martínez v. United States HHS
Cases such as Moreno, Wilson, and Soto-Lopez clearly outline the scope and limitations of the rational basis review judicial scrutiny test: They offer evidence that suggests rational basis review is a judicial test that rarely provides any support to the marginalized groups that bring cases before the Court. Rational basis review is highly deferential to the United States government rarely invalidating legislation.84 Thus, it becomes clear that the Court’s rationale for denying Puerto Rican citizens is based on a highly deferential test. Further, the Court is also denying citizens SSI benefits who would have otherwise qualified because of their residency status.The majority opinion in Vaello-Madero states that “(t)he Court’s decision today should not be read to imply that Congress may exclude residents of individual states from benefits programs.”85 The Court’s verdict in Martínez v. United States HHS (2020) found a rational basis for drawing a distinction between residents of the mainland and Puerto Rico, but not a distinction between the qualifications of an SSI candidate on the mainland and in Puerto Rico. 86 A recent case filed in Puerto Rican District Court, Martínez v. United States Department of Health and Human Services (HHS) , expands on the fact that
84 Raphael Holoszyc-Pimetnel, Reconciling Rational-Basis Review: When Does Rational Basis Bite?, 90 N.Y.U. L. REV. 2070 (2015).
85 Vaello-Madero, 142 S. Ct. at 1543 n.1 (2022).
86 Martínez v. United States HHS, 478 F. Supp. 3d 155 (D.P.R. 2020); see also Fifth Amendment Due Process Clause Equal Protection U.S. Territories United States v. Vaello-Madero, 136 HARV L. REV 360 (2022).
Puerto Rican residents are routinely excluded from government assistance programs. Such programs include SSI, Supplemental Nutrition Assistance Program (SNAP), and Medicare Part D Low-Income Subsidy (LIS). Instead, Puerto Rican residents are offered alternative welfare programs that offer less coverage and fractional benefits. 87 The plaintiffs in Martínez v. United States HHS were nine Puerto Rican residents who challenged the government's denial of assistance programs such as SSI, SNAP, and LIS, claiming that their exclusion was in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. 88 The Court found that none of the government’s proposed theories supplied a rational basis for these discriminatory policies against Puerto Ricans.89
B. Disproving the Three Rationales for Denying Puerto Rican Residents Government Benefits
The decision reached in Martínez v. United States HHS demonstrates how Puerto Rican residents are routinely excluded from government assistance programs, such as SSI, SNAP, and LIS.90 The decision seeks to disprove the three rationales the government provides for excluding residents of Puerto Rico from government assistance programs. 91 The Court claims that the income tax rationale is inadequate because the beneficiaries of these programs are, by definition, poor people who generally do not pay income tax irrespective of where they live. 92 Therefore, Puerto Rican residents should not be denied the same rights simply because of their residency status. The Court further explained that the high cost of providing benefits to Puerto Rican residents cannot be a standalone reason to exclude them.93 If budgetary restraints are a prohibitive factor, Congress has the ability to spread out
87 Martínez, 478 F. Supp. 3d at 165.
88 Id. at 162.
89 Id. at 163.
90 Id. at 163–164.
91 Id.
92 Id. at 163.
93 Id.
reductions equally.94 Finally, the Court addresses the concern over disrupting Puerto Rico’s economy.95 The government claims that because of Puerto Rico’s high poverty and unemployment rates, extending these benefits will have adverse effects on labor incentives. 96 On the contrary, the Court explains that the economic disruption theory is “scientifically baseless.”97 Increasing financial assistance to Puerto Rico is only likely to boost their economy.98 The assertion that extending benefits to Puerto Rican residents may disrupt the economy is not enough to categorically discriminate against the entire group of people.
C. Addressing SSI Specifically
With respect to the specifics of SSI benefits, the Court explains how there is a substitute program provided to Puerto Rican residents in place of SSI, called Aid to the Aged, Blind, or Disabled (AABD).99 However, the Court explains that AABD benefits are less generous than S SI benefits for two reasons: Firstly, the income and resource thresholds are higher, meaning that many who would meet the qualifications for SSI benefits do not meet those to satisfy the requirements for AABD.100 Secondly, for those who qualify, the average monthly benefits are less than those of SSI. 101 The Court drew upon the following information that was recently concluded by the First Circuit which outlines the key differences between SSI and AABD. 102103 In 2011,
94 Id
95 Id.
96 Id.
97 Id.
98 Id.
99 Id. at 165.
100 Id.
101 Id.
102 Id.
103 The majority decision in Martínez v. United States HHS was largely guided by the First Circuit’s argument in United States v. Vaello -Madero. Central to the argument made in the First Circuit was data acquired from a report produced by the United States Government Accountability Office (GAO). The GAO set out to review potential fiscal implications that would be relevant if Puerto Rico were to become a state since Puerto Ricans currently have
the Government Accountability Office (GAO) found that 34,401 individuals who lived in Puerto Rico were enrolled in AABD benefits, and received a monthly payment of $73.85.104 In comparison, the average monthly payment extended to SSI beneficiaries residi ng in the fifty states and the District of Columbia received $438.05.105 The monthly payment to those living in the Northern Mariana Islands was $525.69. The GAO predicted that, had Puerto Rican residents been extended SSI benefits at the same time, 305,000 to 354,000 residents would have received SSI benefits.106
D. Political Units Versus Individuals
The GAO report’s findings regarding the allocation of benefits to residents of the fifty states versus Puerto Rican residents invites questions about the distinction between United States citizens. Similarly, the decision reached in Vaello-Madero draws a distinction between residents of Puerto Rico and residents of the fifty states, the District of Columbia, and the Northern Mariana Islands. It is unsurprising that when evaluating in terms of residency and tax status that the rational basis review test would be deferential to the United States government. However, this distinction does not address the needs of individual citizens, who for every reason other than their residency status would qualify for SSI benefits. The decision reached in United States v. Vaello-Madero “conflated discrimination between political units with discrimination between individuals.”107 The Supreme Court cannot choose to account for only one half of the matter; residency status alone while it may pass the rational basis review test on its face fails to address
only limited access to certain fed eral programs. The GAO reviewed government programs that would need to alter their spending and revenue sources if Puerto Rico were to become a state. The report concluded that 11 federal programs would be affected if Puerto Rico were to become a state SSI being one of them. Doc Hastings & John Flemming, U.S. GOV’T ACCOUNTABILITY OFF., GAO-14-31, PUERTO RICO: INFORMATION ON HOW STATEHOOD WOULD POTENTIALLY AFFECT SELECTED FEDERAL PROGRAMS AND REVENUE SOURCES 14 (2014).
104 Id.
105 Id.
106 Id.
107 United States v. Vaello-Madero, supra note 85, at 360.
the needs of individual citizens who are being denied their Fifth Amendment right to equal protection.
VII. CONCLUSION
When assessing challenges brought before the Court concerning equal protection rights, the rational basis review scrutiny test appears on the surface to be an effective way of assessing the constitutionality of varying laws and statutes. However, the cases presented in both the majority opinions in United States vs. Vaello-Madero and cases analyzed throughout this Note show that decisions based on the rational basis review test leave far too much up for interpretation. As it stands, denying Puerto Rican cit izens the right to obtain SSI benefits because of their exemption from a majority of federal taxes based on rulings from Califano v. Torres and Harris v. Rosario is an inadequate rationale. It still stands that there are United States citizens residing in Puerto Rico who, for every reason other than their residency status, are eligible for SSI benefits. The Court's justification for Congress' "rationale" differential treatment of denying SSI benefits to Puerto Rican Citizens was flawed, as the decisions rea ched in Califano v. Torres and Harris v. Rosario were not enough to establish a precedent of Puerto Ricans' exclusion from the SSI Program. Finally, the Court only accounted for one of the distinctions being made: Residency status. The Court failed to addr ess the needs of individual citizens, thus blurring the lines between the rights of Puerto Ricans as a political unit and individuals who would qualify for SSI benefits. The SSI Program was created to provide benefits for the United States' neediest citizens. To exclude Puerto Ricans who are United States citizens as of the Organic Act of 1900 because they do not pay enough in taxes creates an irrational and arbitrary distinction between groups of citizens that violates equal protection as established under the Fifth Amendment.
* * *
This Note was edited by Margarita McCoy
VOLUME VI, ISSUE II (Spring 2023)
THE WILD WEST OF CRYPTOCURRENCY: THE SEC AND CFTC
Kathryn MacMillan*
The explosion of cryptocurrencies in the past decade has vastly outstripped the capacity of American financial agencies to regulate them. The Securities and Exchange Commission (SEC) and the Commodities Future Trading Commission (CFTC) continue to struggle over the proper division of jurisdiction over these currencies and related assets. As legislation on this point has yet to be passed, more fraudulent cryptocurrency schemes are likely to take place. The proposed Responsible Financial Innovation Act (RFIA) delegates regulatory authority between the SEC and the CFTC. The Responsible Financial Innovation Act (RFIA) establishes clear guidelines that would provide clarity for investors, spurring innovation and preventing illicit cryptocurrency schemes.
* B.S. Candidate for Finance with a Concentration in Business Law and Ethics. Fordham Gabelli School of Business at Rose Hill, Class of 2025. It has been an honor to be a part of the Fordham Undergraduate Law Review. Thank you to my Senior Editor, Daymara Rodrigues, for her amazing guidance and feedback. Thank you also to my family and friends for their support.
I. INTRODUCTION
Cryptocurrency is the “wild west,” Gary Gensler, Chairman of the Securities and Exchange Commission (SEC), stated in a 2021 interview.2 Cryptocurrency is a decentralized digital currency whose transactions are recorded using encryption algorithms on a public ledger known as the blockchain.3 As a novel forum for making large sums of money, the U.S. digital currency market has grown exponentially over the past decade. However, Congress has yet to pass overarching legislation expressly regulating the framework of cryptocurrency, nor has it specified the agency vested with primary regulatory authority. Falling within this ambiguous regulatory zone, participants in the digital currency market have been able to bypass typical financial regulations.4 The Financial Crimes Enforcement Network, a bureau of the United States Department of the Treasury, and the Financial Stability Oversight Council have encouraged action to be taken for responsibility and stabilization in the digital currency market. 5 However, cryptocurrency has proven to benefit the market in certain aspects as it has attracted more individuals to invest for its accessibility and attainability. Cryptocurrency is more accessible than traditional securities and many different forms of digital currency can be purchased with quick payouts.6 Additionally, the varied types of digital currency have provided a diverse and substantial amount of opportunities to invest in cryptocurrency. The
2 Daniel Kuhn, Gary Gensler Says Crypto Is a ‘Wild West.’ Others See Pure Capitalism , CoinDesk (Sept. 30, 2021), www.coindesk.com/policy/2021/09/30/gary -gensler-sayscrypto-is-a-wild-west-others-see-pure-capitalism/.
3 Recent Guidance, Securities Regulation Financial Technology SEC Provides Analytical Tools for Assessing Digital Assets. SEC, Framework for “Investment Contract” Analysis of Digital Assets (2019) , 132 HARV L. REV. 2418, 2419 (2019).
4 Id. at 2422.
5 Financial Stability Oversight Council, Report on Digital Asset Financial Stability Risks and Regulation 14 (2022), https://home.treasury.gov/system/files/261/FSOC-DigitalAssets-Report-2022.pdf.
6 Id.
beneficial implications of cryptocurrency prove to be positive to the financial market. Therefore, clear legislation is important for investors and the stabilization of the market, and for preventing damage to the market. However, cryptocurrency is still a new and evolving internet -based transaction about which comparatively little legislation has been created. Legislation concerning anti-money laundering policies, money transmission laws, and jurisdiction of authority has not been fully modified to be suitable for cryptocurrency and cyberspace. 7
The Securities and Exchange Commission (SEC) and the Commodities Futures Trading Commission (CFTC) are claiming jurisdiction over certain subsets of cryptocurrency.8 The SEC has taken a more aggressive approach on cryptocurrency in comparison to the CFTC.9 The difference in proposed procedures between the SEC and CFTC has caused conflict in deciding regulatory procedures.10 To sharply divide the cryptocurrency landscape among financial agencies, Senators Kirsten Gillibrand and Cynthia Lummis introduced the Responsible Financial Innovation Act (RFIA). The proposed bill establishes a decisive split in regulation between the SEC and the CFTC regarding the main authority for regulating cryptocurrency. 11 This Note will examine the financial technology of cryptocurrency as well as its impact on the U.S market and the regulatory landscape. This Note will argue for additional cryptocurrency legislation, in the form of the Responsible Financial Innovation Act, pertaining to the delegation of authority, which will deter cybercriminals and fraudulent schemes and will ultimately set a precedent for jurisdiction in financial technology transactions. 12
7 Id. at 9.
8 Menesh S. Patel, Fraud on the Crypto Market, 36 HARV J. L. & TECH. 171, 174 (2022).
12 Wayne Duggan, Crypto Regulation: Is Cryptocurrency a Security? , FORBES ADVISOR (Oct. 7, 2022), www.forbes.com/advisor/investing/sec -crypto-regulation/.
II. DEFINING CRYPTOCURRENCY
Cryptocurrency’s identification is the blockchain, a decentralized ledger of all transactions. Cryptocurrency’s decentralized system has created a challenge for regulatory bodies in part because crypto encourages investors to diversify their portfolios and make investments with quicker payoffs.13 Different forms of cryptocurrency, such as Bitcoin, have been established and gained popularity. Cryptocurrency owners have an identifiable electronic address that is connected to their digital wallet, where their cryptocurrency is stored.14
Purchasing cryptocurrency such as Bitcoin is recorded on the blockchain.15 As it is never changed or deleted, blockchain allows owners to keep an unchangeable record of cryptocurrency transactions. 16 Even though investors have accepted blockchain’s algorithm as secure, it has given cybercriminals the opportunity to construct ways to manipulate and launder funds. Specifically, criminals use cryptocurrency “swap services,” a service that converts digital currencies, to disguise a path that leads to the fund’s origin, making it difficult to trace.17 As the cryptocurrency market drastically grows, fraudulent techniques continue to be developed to swindle greater amounts of money.
III. REGULATORY LANDSCAPE
A. SEC v. W. J. Howey Co
In SEC v. W. J. Howey Co., the Supreme Court established the Howey Test, which is applied by courts to determine whether an issuance is
13 Id
14 Rhys Bollen, The Legal Status of Online Currencies: Are Bitcoins the Future? , 24 J. BANKING & FIN L. & PRACTICE 272 (2013).
15 D. Towne Morton, The Future of Cryptocurren cy: An Unregulated Instrument in an Increasingly Regulated Global Economy , 16 LOY. U. CHI. INT’L L. REV. 129, 130 (2020).
16 Id
17 U.S. Dep’t of the Treasury, Illicit Finance Risk Assessment of Decentralized Finance 7 (April 2023), https://home.treasury.gov/system/files/136/DeFi -Risk-Full-Review.pdf
considered an investment contract, and therefore a security, under the Securities Act of 1933. The SEC has since applied this test to determine whether certain forms of cryptocurrency are securities and subject to securities regulation.18 The Howey Test defined an investment contract as “a contract, transaction, or scheme wh ereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”19 This formulation has been divided into four prongs addressing (1) an investment of money, (2) in a common ent erprise, (3) where the investor reasonably expects to derive profits, and (4) predominantly20 by the efforts of others.21 Only a subset of cryptocurrencies and initial coin offerings (ICOs) satisfy all four prongs and thus qualify as securities. ICOs, similar to initial public offerings (IPOs), are an initial sale of cryptocurrency to the public for the purpose of gaining funds for a startup.22 Bankers or regulatory approval is not required for an ICO. 23
The SEC has expressed a clear interest in being designated as the primary regulator of cryptocurrency. In a speech delivered in September 2022, SEC Chair Gary Gensler declared that the SEC will be “aggressively policing crypto tokens and intermediaries.”24 Gensler stated that a clear regulatory
18 SEC v. W. J. Howey Co., 328 U.S. 293, 299 (1946).
19 Id.
20 The Howey Test has used the term “solely” interchangeably with “predominantly.” The term “solely” is used to represent the profits being solely from external market forces. However, “predominantly” is used due to “solely” being too rigorous a standard to hold securities to at this time. Because there may be underlying forces contributing to profit and impacting supply and demand for an investment contract, the term “predominantly” has been implemented. Digital and Digitized Assets: Federal and State Jurisd ictional Issues, American Bar Association Derivatives and Futures Law Committee, Innovative Digital Products and Processes Subcommittee 8 (March 2019), https://marketingstorageragrs.blob.core.windows.net/webfiles/McLaughlin_50_State_virtu al_currency_regulation_survey.pdf.
24 Mark Bini & Joanna Howe, Here’s Why the SEC Will Likely Be the Primary Cryptocurrency Cop, Bloomberg Law (Oct. 17, 2022), https://news.bloomberglaw.com/us-law-week/is-the-sec-the-new-crypto-sheriff-in-town.
hierarchy will have a positive impact on cryptocurrency and will cause investors to succeed, as a main regulator would establish clear guidelines for other regulators and investors.25 SEC regulation of cryptocurrency may be challenging, as the Commission would only be able to regulate specific cryptocurrency securities. Therefore, commodities fall under the regulation of the CFTC and securities fall under the regulation of the SEC.
B. The Commodity Futures Trading Commission
The Commodity Futures Trading Commission is an independent government agency that regulates the U.S. derivatives markets. The U.S derivatives market is the market for financial instruments derived from the performance of market factors such as interest rates. 26 A commodity under the CFTC guidelines is a service, right, or interest, that a future contract exists, and that could exist in the future. 27 The Commodity Exchange Act (CEA) was passed in 1936 and regulates the trading of commodity futures in the United States.28 The CEA established the statutory framework and authority for the CFTC.29 It is imperative that, although the SEC does qualify to regulate certain cryptocurrencies and ICOs, they do not have the jurisdiction to regulate many popular forms of cryptocurrency that have been labeled commodities, including Bitcoin.30 Bitcoin is presumed a commodity.31 The jurisdiction of Bitcoin falls under the CFTC; Bitcoin’s currency is interchangeable, the price is driven by supply and demand, and there is no centralizing entity 32
25 Id.
26 Derivatives, Office of the Comptroller of the Currency (Apr. 3, 2019), www.occ.treas.gov/topics/supervision -and-examination/capital-markets/financialmarkets/derivatives/index-derivatives.html.
The Financial Crimes Enforcement Network (FinCEN) is a bureau of the United States Department of Treasury. FinCEN works to prevent financial crime and promote national security. Specifically, FinCEN oversees cryptocurrency for purposes of anti-money laundering and combating the financing of terrorism.33 FinCEN has provided guidance on halting illicit activity concerning convertible virtual currency, including money laundering involving the darknet marketplaces and foreign-located Money Service Businesses.34
For example, in 2021, FinCEN took a stance agai nst violations when it assessed a $100 million civil money penalty against BitMEX, one of the oldest and largest convertible virtual currency derivatives exchanges, for violations of the Bank Secrecy Act (BSA) and FinCEN’s implementing regulations.35 FinCEN took action against a major cryptocurrency exchange and exposed its risk, growth, and lack of policy. BitMEX’s growth into one of the largest futures commission merchants offering virtual currency derivatives without a commensurate anti-money laundering program put the U.S. financial system at great risk.36 These actions resulted in BitMEX paying a monetary penalty and agreeing to review its financial history. 37 Additionally, BitMEX agreed to work to implement proper policy, regulatory procedures, and programs to be a safer and more secure cryptocurrency exchange.38 FinCEN continues to work to improve accountability, transparency, and procedures in the digital currency market.
33 FinCEN, FIN-2019-G001, Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies 1 (May 9, 2019), www.fincen.gov/sites/default/files/201905/FinCEN%20Guidance%20CVC%20FINAL%20508.pdf.
34 Id. at 2.
35 In the Matter of HDR Glob. Trading Ltd., No. 2021 -02 (FinCEN Assessment of Civil Money Penalty Aug. 10, 2021).
36 Id. at 28.
37 Id. at 28.
38 Id. at 15.
In 2013, the Financial Crimes Enforcement Network (FinCEN) established three categories of individuals who interact with cryptocurrency: users, exchangers, and administrators.39 Only exchangers people “engaged as a business in the exchange of virtual currency for real currency, funds or other virtual currency” or administrators people “engaged as a business in issuing . . . a virtual currency, and who ha[ve] the authority to redeem . . . such virtual currency are considered money service business” under the Bank Secrecy Act. 40 This Act requires these participants to be identified and to keep a record of transactions.41 However, individuals and corporations who do not fall under the Bank Secrecy Act do not face the same registration, reporting, and recordkeeping requirements. 42
D. The Federal Reserve
The Federal Reserve, the central banking system of the U.S., oversees cryptocurrency held by banks.43 The Federal Reserve oversees aspects of cryptocurrency when banks hold cryptocurrency as an asset on their balance sheets.44 The Federal Reserve’s authority is independent of the regulation of the CFTC and the SEC.45 However, the Federal Reserve may establish a new regulatory system specifically for digital financial transactions. 46 This regulatory system would delegate authority to a specific sector whose purpose and function would be for digital currency. The concept of a central bank digital currency (CBDC) is best understood as “creating a digital
39 See FinCEN, FIN-2013-G001, Application of FinCEN’s Regulations to Persons Administering, Exchanging, or Using Virtu al Currencies 1 (Mar. 18, 2013), www.fincen.gov/sites/default/files/shared/FIN -2013-G001.pdf.
40 Id. at 2.
41 Bank Secrecy Act of 1970, Pub. L. No. 91 -508, 84 Stat. 1114-2.
42 FinCEN, FIN-2014-R001, Application of FinCEN’s Regulations to Virtual Currency Mining Operations 1 (Jan. 30, 2014), www.fincen.gov/sites/default/files/shared/FIN -2014R001.pdf.
43 Christina Parajon Skinner, Central Bank Digital Currency as New Public Money , 172 U. Penn. L. Rev. 151, 152 (2023).
44 Id.
45 Id. at 153.
46 Id.
version of the US dollar that’s managed by blockchain technology.” 47 This would be an advancement in financial technology transactio ns and would strive to make a clear and transparent regulatory system for digital transactions. Although this concept is still being explored, it could serve as a benefit to the Federal Reserve. The establishment of a specific sector of the Federal Reserve whose purpose is the regulation of financial digital transactions when held in banks could prove beneficial for banks by having oversight and guidelines for their digital currency.
IV. IMPACT ON MARKET
Cryptocurrency has gained popularity and controversy from its lack of regulatory scrutiny. The Financial Stability Oversight Council (FSOC) was created by the Dodd‐Frank Wall Street Reform and Consumer Protection Act in response to the U.S. financial crisis from 2007-2009.48 Previously financial regulation primarily monitored markets and individual institutions, but this led to inconsistencies and vulnerabilities within the market. 49 Therefore, FSOC was established to monitor financial firms operating across a more diverse range of markets and to address broader risks to financial security and vulnerability.50 The Council raised concerns in their annual report in 2022, stating, “some characteristics of crypto-asset activities have acutely amplified instability within the crypto-asset ecosystem” and “many crypto-asset activities lack basic risk controls to protect against run risk or to help ensure that leverage is not excessive.”
51 The Financial Stability Oversight Council used the scandal of FTX as an example of instability within the market. In May 2021, FTX, an existing cryptocurrency exchange, began creating its own virtual currency, FTT, and mismanaging funds while deceiving consum ers. FTX offered FTX yield-bearing digital currency accounts while transferring
47 Id. at 176.
48 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 -2011, Pub. L. No. 11-203, 124 Stat. 1376.
49 Id.
50 FSOC, supra note 5, at 4.
51 Id. at 2.
money to Alameda Research LLC, a private cryptocurrency hedge fund, to make undisclosed venture investments. 52 FTX created a type of “Ponzi scheme,” and the coin crashed due to liquidity issues and withdrawal from investors. This in turn caused “a downward spiral in prices throughout crypto markets, prompting a rash of bankruptcies, consolidation, and layoffs in the industry.”53 Gurbir S. Grewal, Director of the SEC’s Division of Enforcement, stated, “FTX’s collapse highlights the very real risks that unregistered crypto asset trading platforms can pose for investors and customers alike.”54 Individuals invest substantial amounts of money quickly in a decentralized system that can collapse from schemes and geopolitical issues easily due to a lack of regulation.55 FSOC shares such concerns over the lack of delegated regulation, causing instability and vulnerability within the market.56 Therefore, creating legislation establishing clear authority and procedures would secure and stabilize the market as oversight would provide more stable guidelines for investors to operate in.
Using government regulation to stabilize the market is beneficial to investors in creating clear regulatory procedures. The Financial Stability Oversight Council has expressed concerns that the rapid growth of cryptocurrency will make the U.S economy vulnerable to destabil ization.57 The Council “urged all agencies, including the SEC and CFTC, to prioritize crypto enforcement and recommended that Congress provide regulatory agencies with more resources to police crypto” in their first and most recent report in October 2022.58 A prior precedent not being set and a lack of familiarity with the technological infrastructure have proven difficult to
52 Press Release, SEC, SEC Charges Samuel Bankman -Fried with Defrauding Investors in Crypto Asset Trading Platform FTX (Dec. 13 2022), www.sec.gov/news/pressrelease/2022-219
53 Ephrat Livni, Crypto Needs More Rules and Better Enforcement, Regula tors Warn, N.Y. Times (Oct. 3, 2022), www.nytimes.com/2022/10/03/business/cryptocurrency -regulationstablecoin.html.
54 SEC Press Release, supra note 52.
55 Livni, supra note 53.
56 Id.
57 FSOC, supra note 5, at 3.
58 Livni, supra note 53.
regulate.59 Therefore, legislation and regulations must be established to set a precedent for digital financial transactions.
V. RESPONSIBLE FINANCIAL INNOVATION ACT
A. Section 301 (Securities Offerings Involving Certain Intangible Assets)
Wyoming Senator Cynthia Lummis and New York Senator Kirsten Gillibrand proposed the Responsible Financial Innovation Act (RFIA) to clarify the distribution of jurisdiction exercised by executive agencies over cryptocurrency and codify their regulatory procedures.60 Specifically, RFIA proposes that cryptocurrency be divided into different regulatory categories: “commodities, securities, and ancillary assets.”61 Ancillary assets encompass digital assets that qualify as investment contracts but not securities, because they do not confer a debt or equity interest, liquidation rights, entitlement to interest or dividend payments, or other financial interests. Hold ers of ancillary assets will be required to submit disclosures to the SEC twice a year.62 Compliance with these disclosure requirements will create a presumption that the ancillary assets are commodities, subject to regulation by the CFTC. 63 In this way, the RFIA would implement new, clear jurisdictional differences in regulation between the SEC and the CFTC. As an impact, investors can be more innovative within the legislated guidelines and clear regulatory procedures. The bill works to establish not only concise legislation but proper authority. The SEC and CFTC can determine how to regulate because they understand what they can regulate.
59 The Crypto Infrastructure Cracks, The Economist (May 12, 2022), www.economist.com/finance-and-economics/2022/05/12/the-crypto-infrastructure-cracks.
62 Id. § 301 (to be codified at 15 U.S.C. § 41(a)(1)).
63 Id. (to be codified at 15 U.S.C. (b)(4)(A)(i)).
B. Section 403 (CFTC Jurisdiction)
The RFIA would establish the CFTC as the main regulator for cryptocurrency. The CFTC would be responsible for regulating all financial digital currency commodities.64 The CFTC would enforce strong consumer protection and custody requirements.
C. Section 404 (Digital Asset Exchanges)
The RFIA defines a digital asset as an electronic ass et that confers economic, proprietary, or access rights or powers and is recorded utilizing a secured distributed ledger technology.65 The RFIA provides that digital asset exchanges must register with the CFTC for trading activities. 66 Section 404 also establishes customer protection and prevention of market manipulation in digital asset exchanges.67 The CTFC can enforce compliance of the digital asset exchanges with trading, rules that will discourage abuse, and investigate violations.68 For example, a digital asset may not be exchanged if the transaction history can be fraudulently altered by an in dividual or the operation of the asset can be materially altered by an individual under common control.69
D. Section 501 (Responsible Consumer Protection)
The RFIA establishes protection standards for consumers that prioritize disclosures.70 The RFIA states that a digital asset provider must provide consumers with disclosures such as, but not limited to, “notice of material source code version changes relating to digital assets, prior to implementing
64 Id. § 403 (to be codified at 7 U.S.C. § 2(c)(2)).
65 Id. § 101 (to be codified at 31 U.S.C. § 9801(2).
66 Id. § 404 (to be codified at 7 U.S.C. § 5(i)).
67 Id. § 404.
68 Id.
69 See id. at 404B.
70 Id. § 501A.
the updates (with an exception for emergencies); whether and how customer digital assets are segregated from other customer assets; how the customer’s assets would be treated in bankruptcy or insolvency, and the risks of loss.” 71 The proposed bill establishes consumer protection and helps combat i ssues of investors being swindled in situations of fraud and laundering. It requires certain disclosures to be provided, such as how the consumer's assets would be treated in insolvency and the risk of loss. 72 Measures resulting from the bill to deter schemes could include a more substantial registration process, such as registering with the SEC when investing in cryptocurrency. This registration procedure could deter schemers, as they would be exposed in the registration process. The CFTC regulates commodities having any intermediaries, entities that act as agents for other people when dealing with futures, swaps, and options. These bodies have to register with the CFTC, as required by the Commodity Exchange Act (CEA).
VI. CONCLUSION
Clarifying the jurisdiction of the SEC and CFTC over cryptocurrency should be a priority. The RFIA provides more protection to investors due to registration requirements for digital asset exchanges, consumer protection, and disclosure requirements. Therefore, cryptocurrency would be regulated more efficiently, greatly benefiting the stabilization of the market and consumers. It is of the utmost importance to market stability and the safety of investors that there is cryptocurrency legislation. The current lack of clarity surrounding the allotment of regulatory jurisdiction disserves investors. The Responsible Financial Innovation Act would spark more innovation within the realm of cryptocurrency, as a proper division of authority would be established. The digital currency market is still incredibly new and remains vulnerable without delegated authority. Therefore, established delegated
71 Id. § 501D.
72 Id.
authority would provide clarity and innovation to the emerging market of digital currency.
This Note was edited by Daymara Rodrigues
RUSSIA’S
LEGAL
FRAMEWORK FOR FOREIGN ANNEXATION: PAST AND PRESENT
Amy Herd*
Modern Russian imperial ambitions are grounded in nearly 450 years of expansionist policy, extending from the Tsardom of Russia (1547 -1721) and the Russian Empire (1721-1917) to the Soviet Union (1922-1991) to the Russian Federation (1991-present). The illegal Russian annexations of Crimea (2014) and Ukraine’s Donetsk, Luhansk, Zaporizhzhia, and Kherson Oblasts (2022) are only the latest installment in this colonial history, but that does not render them any less significant. In order to gain a better understanding of what the future of citizens in these occupied territories might look like, this Note will analyze the legal frameworks for foreign annexation that were used in the Russian Empire, the Soviet Union, and the Russian Federation. Additionally, to further examine how Russia has treated citizens in its occupied territories, this Note will dissect the ways Russia has historically tried to present itself as a state that protects the civil rights of its citizens, and will subsequently reveal how these ci vil rights were often not protected at all. This Note will then proceed to examine the recent rulings of the Russian Constitutional Court (RCC) regarding the annexation of Ukraine’s eastern Oblasts. Ultimately, this Note will argue that the RCC’s decision not to prioritize codified protections for civil rights in its rulings sets a dangerous precedent for the future of civil rights in the annexed Ukrainian territories, one that must be immediately reversed or countered by the international community.
* B.A. Candidate for International Studies and History, Fordham College at Rose Hill, Class of 2025. I am grateful for the opportunity to write for the Fordham Undergraduate Law Review and give my thanks to the Editorial Board, for this Note could not have been published without their guidance and contributions. I owe a debt of gratitude to Mrs. Jennifer Stockdale and Mrs. Kelly Brandes, who encouraged me to follow my passion in the law, as well as my professors and mentors particularly Dr. William D. Myers, Dr. Magda Teter, and Dr. Olena Nikolayenko who have pushed me to research topics I am passionate about.
I. INTRODUCTION 113
II. GROUNDWORK FOR FOREIGN ANNEXATION IN THE RUSSIAN EMPIRE 114
A. Legal Protection for Civil Rights in the Russian Empire ... 116
III. GROUNDWORK FOR FOREIGN ANNEXATION IN THE SOVIET UNION 117
A. Legal Protection for Civil Rights in the Soviet Union ....... 120
IV. GROUNDWORK FOR FOREIGN ANNEXATION IN THE RUSSIAN FEDERATION ................................................................................... 121
A. Legal Protection for Civil Rights in the Russian Federation ............................................................................................ 122
V. RULINGS OF THE RUSSIAN CONSTITUTIONAL COURT REGARDING THE ANNEXATION OF UKRAINIAN OBLASTS........................................... 123
A. Potential Consequences of the Russian Constitutional Court’s Approach to Annexation ..................................................... 125
VI. CONCLUSION ................................................................................... 127
I. INTRODUCTION
During the twilight years of the Soviet Union, Vyacheslav Chornovil the first leader of the People’s Movement of Ukraine and a prominent Soviet dissident took to the stage in Lviv to proclaim that “[The] rotten Russian empire is falling apart.”2 In 1991, only a year after Chornovil’s speech, the USSR’s hammer and sickle flag would lower for the last time over the Kremlin, thus signaling the end of the Russian imperial era that had begun under the rule of Ivan IV in 1547 or so the world thought.3 Following the tumultuous post-Soviet transition period, Russian President Vladimir Putin lamented the collapse of the USSR as the “greatest political catastrophe of
2 Mr Ukraine, Львів. 1990 рік. "Розвалюється гнила російська імперія" - виступ В'ячеслава Чорновола, YOUTUBE (Dec. 5, 2021), https://www.youtube.com/watch?v=VMU57zjkOUE.
3 DIVIDED NATIONS AND EUROPEAN INTEGRATION: NATIONAL AND ETHNIC CONFLICT IN THE 21ST CENTURY 365 (Tristan James Mabry, John McGarry, Margaret Moore & Brendan O’Leary eds., 2013).
the [20th] century.”4 This quote would later be invoked to explain the 2014 invasion of Crimea and the full-scale invasion of Ukraine in 2022 events that are described as examples of greater Russian irredentism, a policy usually understood as a [Russian] desire to annex territories within another state’s borders for historical or ethnic reasons. 5 Evidently, Russia’s imperialism is not a thing of the past.
In light of Putin’s illegal annexations of Ukraine’s Donetsk, Luhansk, Zaporizhzhia, and Kherson Oblasts, this Note proposes a comparative autopsy of Russia’s historical and contemporary frameworks for foreign annexation. To achieve this analysis, this Note will document a brief overview of the Russian Empire, Soviet Russia, and the Russian Federation’s imperial histories, paying special attention to several legal documents that concern foreign annexation. This Note will then proceed to analyze the recent rulings of the RCC regarding the annexation of Ukraine’s eastern Oblasts, revealing the decisions’ ambiguity regarding civil rights. Ultimately, this Note argues that the RCC’s decision not to prioritize concrete legal protections for civil rights in its annexation rulings sets a dangerous precedent for the future of said rights in the occupied Ukrainian territories, and therefore swift action must be taken to protect both Ukraine’s territorial integrity and its citizens.
II. GROUNDWORK FOR FOREIGN ANNEXATION IN THE RUSSIAN EMPIRE
Contemporary Russian imperialism is grounded in nearly 450 years of expansionist policy, extending from the Tsardom of Russia (1547-1721) and the Russian Empire (1721-1917) to the Soviet Union (1922-1991) to the Russian Federation (1991-present). Legitimization and justification for the expansion of the Russian Empire came primarily from ideological and
5 Thomas O. Falk, Can Russia Return to the World Stage, as Other Aggressor Nations? , AL Jazeera (Mar. 29, 2022), https://www.aljazeera.com/news/2022/3/29/can -russia-returnto-the-world-stage-as-other-aggressor-nations.
religious beliefs, rather than legal documents or legislation. The most popular justification was arguably the “Tsar’s divine right,” which affirmed that the Tsar not only had a God-given right to rule over all citizens of the Russian Empire, but also that it was his duty to expand the empire’s boundaries.6 This “divine right” was reinforced by Tsar Nicholas I, under whom the triad of “Orthodoxy, Autocracy, and Nationality” became the Russian state’s dominant imperial ideology.7 This triad required the Orthodox Church to assume a central, active role in the life and politics of the empire while also calling for an absolute ruler, one who could “resolve any contradictions in the world and create an ideal celestial order.” 8 Further justification came in the form of “pan-Slavism,” a 19th-century theory that advocated for the union of all Slavs into one political organization to protect “Slavic integrity.” 9 Subsequently, the concept of Russkiy mir (Russian world) and the idea of an “all-Russian” nationality was embraced by imperial subjects. 10 Russification a similar ideology that advocated for the political, linguistic, and cultural assimilation of non-Russians into Russian culture and society flourished alongside Russkiy mir, and remains a relevant policy to this day.11 Lastly, in conjunction with the Tsar’s divine right, pan-Slavism, and
6 Gregory L. Freeze, Subversive Piety: Religion and the Political Crisis in Late Imperial Russia, 68 J. MOD HIST. 308, 308 (1996)
7 ALEXANDER CHUBAROV, RUSSIA’S BITTER PATH TO MODERNITY: A HISTORY OF THE SOVIET AND POST-SOVIET ERAS 36-37 (2001).
8 Id
9 MARCEL H. VAN HARPEN, PUTIN’S WARS: THE RISE OF RUSSIA’S NEW IMPERIALISM 58 (2014).
10 GABRIELLA EVA MARIE ZEZULKA-MAILLOUX & JAMES GIFFORD, CULTURE + THE STATE: NATIONALISMS 127 (2003).
11 Russification was the source of much resentment in both the Russian Empire and the Soviet Union. During the Russian Empire, attempts were made to Russify states such as Latvia, Estonia, and the Grand Duchy of Finland. These were met with “nat ional resistance and, in some cases, outright violence, and did not get very far. Russification was especially prominent in the Ukrainian SSR, as the Ukrainian language was almost entirely pushed out of governmental and academic spaces. However, these effo rts did not quash Ukrainian aspirations for independence; rather, they were followed by the rise of strong(er) nationalist sentiments. See EDWARD C. THADEN, RUSSIFICATION IN THE BALTIC PROVINCES AND FINLAND, 1855-1914 355-457 (1981); see also Vitaly Korotich, The Ukraine Rising , 85 FOREIGN POLICY 73, 74 (1991-92).
Russification, Russian rulers also believed they had a mission civilisatrice in Asia, or a duty to “civilize” Asiatic nomadic peoples.12 Much of the basis for the legal justification of Russian imperial expansion can be found in these theological and cultural -philosophical justifications, as well as the selfassigned moral obligations.
A. Legal Protection for Civil Rights in the Russian Emp ire
As an autocracy, the Russian Empire had no absolute legal framework that defined its citizens’ civil rights until the early 20th century, when the Russian Constitution of 1906 was enacted as a last -ditch effort to stop the empire’s disintegration following the 1905 Russian Revolution and the establishment of the State Duma.13 Despite this, Russian officials such as M. M. Speransky, Governor General of Siberia from 1819 to 1822, still made efforts to outline the rights of Russian citi zens and ethnic minorities as the empire continued to acquire new territories prior to 1906.14 Unfortunately, these attempts often served to perpetuate the idea that minorities in the empire were a sort of uncivilized “Other,” rather than human beings of e qual status that warranted the same rights as “true” Russian citizens.15
Starting with the proceedings of the Legal Commission of 1767, officials in the Russian Empire created a strict division between settlers and nomadic peoples (inorodtsy).16 This 1767 Commission itself excluded the nomadic peoples, thus making it clear that the empire regarded them as second -class citizens.17 Though laws regarding nomadic peoples were enacted later, they were concerned with elevating said nomads to the “higher” status of fullfledged citizens of the empire (shared by settled Russians) rather than establishing their rights or affording them legal protections. Nearly half a
12 ANDREAS KAPPELER, THE RUSSIAN EMPIRE: A MULTIETHNIC HISTORY 169 (Alfred Clayton, trans., Routledge 2001).
13 History of the State Duma , The State Duma: The Federal Assembly of the Russian Federation, http://duma.gov.ru/en/duma/about/history/information/.
14 Kappeler, supra note 11, at 169-171.
15 Id.
16 Id. at 169.
17 Id.
century later, in 1822, Speransky developed a new legal framework that divided ethnic minorities into three groups: the hunters, gatherers, and fishermen of Siberia’s far north (except the Chukchi, whom the empire had given special status to), the nomads, and the sedentary inorodtsy, or sedentary foreign-born.18 Once again, however, these frameworks were concerned with elevating “backward” ethnic groups to the “higher level” of settled Russians, rather than guaranteeing and protecting their rights.19 Though these reforms included formal assurances of these groups’ religious, trade, and commercial freedoms, these were rarely observed in practice, instead only being partially implemented due to the corruption that plagued Siberia. 20 This initial exclusion eventually led to the perpetuation of segregation, discrimination, and ethnic racism a phenomenon that clearly reveals the dangers of leaving groups without clearly defined civil rights, or without civil rights entirely. Later conquests, such as the incorporation of Transcaucasia, further compounded the idea that the Russian Empire was far more concerned wi th expansion and annexation than with the rights of citizens in its occupied territories. As historian of eastern Europe Andreas Kappeler states, “[Georgians and Armenians] expected Russia not only to liberate them from foreign domination but also to grant them political and cultural autonomy. On the whole, such hopes were not fulfilled, so that from a Georgian and Armenian perspective, the union with Russia is interpreted to this day in an ambivalent way.”21 Thus, it is evident that even when there were expectations that ethnic minorities would be able to retain aspects of their autonomy or sovereignty, the Russian Empire was not concerned with prioritizing the protection of these rights.
18 Id.
19 Id.
20 Id. at 170.
21 Id. at 175.
III. GROUNDWORK FOR FOREIGN ANNEXATION IN THE SOVIET UNION
Through Vladimir Lenin’s eyes, the Soviet Union was a break from the imperialist system that had come about due to capitalism. Rather, the USSR as Lenin imagined it would not seek to establish economic and political domination over other countries, but would instead attempt to ensure that the Soviet Union respected both the autonomy and the diversity of the different peoples and nations within its borders.22 However, these principles were rarely honored or observed in practice. As the 20th century progresse d, the USSR came to use a combination of ideological and legal frameworks to justify its foreign annexations (and interventions). The principle of “socialist legality” which was meant to defend workers and the workers’ state from crimes committed against it was sometimes invoked to justify the annexation of foreign territories, as the bourgeois ruling class deemed those annexations as being what was “best” for the Soviet Union. 23 Further, proletarian internationalism (or international socialism), which advocated the idea that the workers’ liberation movement was a global effort that transcended borders, was used to justify the USSR’s intervention in foreign states and their subsequent annexations.24
Beginning with the Soviet Constitution of 1924, the USSR codified its intention to allow its member Republics to retain their sovereignty, and that said sovereignty would only be limited according to matters outlined in the constitution.25 Otherwise, each Republic could “exert its public powers independently.”26 The amended and greatly extended Soviet Constitution of 1936 continued this trend, with Article 4 specifically stating that:
22 20 Vladimir I. Lenin, The Right of Nations to Self -Determination, in LENIN: COLLECTED WORKS 393, 409-420 (Julius Katzer ed., Bernard Isaacs & Joe Fineberg trans., Progress Publishers 2d ed. 1972).
23 Lewis Siegelbaum, Socialist Legality, Seventeen Moments in Soviet History: An Online Archive of Primary Sources, https://soviethistory.msu.edu/1924-2/socialist-legality/.
24 THOMAS LANSFORD, COMMUNISM 9-24, 36-44 (2007).
25 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS art. 3 (1924).
26 Id.
“The Union of Soviet Socialist Republics recognizes the freedom and independence of all peoples inhabiting its territory. Each of the constituent Republics retains the right freely to secede from the Union. The rights of the peoples of the USSR to secession cannot be infringed upon.” 27
The 1977 Constitution referred to the USSR as an “integral, federal, multinational state formed on the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics,”28 and once again stated that nations would have the right to freely secede from the USSR.29
At first glance, it might appear that the Soviet Union was quite dedicated to protecting the sovereignty of all Union Republics that comprised the USSR. However, it would and in some instances, already had become clear that the USSR would not honor this part of its constitution. During the years of 1917-1921, the Soviet Union invaded several of its neighbors, including Ukraine,30 Georgia, Armenia, and Azerbaijan.31 In Ukraine’s case, the USSR applied a combination of military force, as well as political and diplomatic maneuvering, to incorporate it as a Soviet territory, thus making it clear that the Soviet Union had no qualms about violating these nations’ right to self-determination in order to annex them.32 Further instances in Ukraine and other Soviet states such as the Ministry of Education of the USSR declaring that all dissertations had to be written and defended only in Russian,33 despite Article 121 of the 1936 Constitution stating that instruction
27 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS art. 4 (1936).
28 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS art. 70 (1977).
29 Id. at 72.
30 SERHII PLOKHY, THE GATES OF EUROPE: A HISTORY OF UKRAINE 229 (2015).
31 MAMUKA Tsereteli, Azerbaijan and Georgia: Strategic Partnership for Stability in a Volatile Region 14, CENTRAL ASIA-CAUCASUS INSTITUTE & SILK ROAD STUDIES PROGRAM (Sept. 2013), https://www.silkroadstudies.org/resources/pdf/SilkRoadPapers/2013_09_SRP_Tsereteli_A zerbaijan-Georgia.pdf.
32 Id.
33 Olena Siruk, A Guide to the History of Oppression of the Ukrainian Language , CHYTOMO (Mar. 29, 2023), https://chytomo.com/en/a-guide-to-the-history-of-oppressionof-the-ukrainian-language/.
in schools could take place in a country’s native language34 make it clear that commitments to protecting Union Republics’ sovereignty such as those made in the 1924, and especially the 1936 Constitutions were not honored in practice. Even after the 1977 Constitution, which included an Art icle meant to “ensure broad access to the cultural treasures of their own land,” as well as the “development and fair distribution of cultural and educational institutions throughout the country” was ratified, Soviet officials still made efforts to Russify Ukrainians.35 In 1983, a resolution was passed that allocated 15% more in pay to Russian language teachers compared to Ukrainian language teachers, and in 1984 the Ministry of Culture of the USSR ordered the translation of all documents in Soviet museums into Russian.36 Once again, it becomes clear that the Soviet authorities were not as concerned with respecting the protections laid out for citizens especially those not ethnically Russian in their constitution.
A. Legal Protection for Civil Rights in the Soviet Union
The Soviet Constitutions of both 1936 and 1977 guaranteed and protected a wide range of civil rights for Soviet citizens, including, but not limited to, education, freedom of speech, press, and assembly, and the right to not be placed under arrest except by the decision of a court or with the official permission of a prosecutor.37, 38 However, similar to the handling of Article 4, these rights were often not respected in practice. The Soviet legal system was frequently subjected to intense political pressure and was thus used to suppress political dissent rather than to protect citizens’ civil rights. 39 In the
34 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS art. 121 (1936).
35 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS art. 46 (1977).
36 Id., supra note 32.
37 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS arts 121, 125, 127 (1936).
38 CONSTITUTION OF THE UNION OF SOVIET SOCIALIST REPUBLICS arts. 45, 50 (1977).
39 Daniel Singer, Socialism and the Soviet Bloc , THE NATION (Jan. 2, 1998), https://web.archive.org/web/20180927130215/https://www.thenation.com/article/socialism -and-soviet-bloc/.
Ukrainian SSR, Soviet authorities arrested and tortured political dissidents while also censoring the press and promoting Russification.40 As was the case in the Russian Empire, the Soviet Union seemed more concerned with consolidating and defending the power of its ruling class, rather than with protecting the rights and interests of its citizens.
VII. GROUNDWORK FOR FOREIGN ANNEXATION IN THE RUSSIAN FEDERATION
Following the collapse of the USSR in 1991, a rump Russian state was left to rebuild itself. Now considered the Russian Federation, their 1993 Constitution explicitly prohibits the seizure of foreign territory. 41 However, it does provide a basis for territorial changes, stating that “Borders between constituent entities of the Russian Federation may be changed upon their mutual consent.”42 Thus, in theory, any changes made to the territory or borders of the Russian Federation must be done with the agreement of the affected parties. However, like in the Russian Empire and the Soviet Union, this procedure is often not honored in practice. Such was the case in March of 2014 when the Russian Federation forcibly seized and illegally annexed Ukraine’s Crimean Peninsula without the consent of the Ukrainian government.43 Following the Revolution of Dignity, Putin stated that he and the Russian Federation “could not ignore the pleas [for help]. We could not leave Crimea and its people in trouble. It would have been nothing short of a betrayal.”44 Such “pleas” serve as the justification for Putin’s invasion
43 Constitutional Court of the Russian Federation, “Resolution of the Constitutional Court on the verification of the constitutionality of the treaty on the admission of Crimea to the Russian Federation,” No. 6-P/2014, Mar. 18, 2014.
and annexation, which was in part made possible with the help of Crimea’s secessionist authorities, such as Sevastopol’s self-declared mayor Aleksei Chaly, who helped conduct the Crimea Referendum on March 16. 45 Secessionist authorities concluded from the data that 97% of voters supported joining Russia; however, this result was highly disputed on the international stage.46 For example, Andrey Illarionov, an economist and former senior policy advisor to Putin, published an analysis of the polling results that showed Crimean support for joining Russia fluctuating between only 23 and 41% since 2011.47 Drawing on several opinion polls conducted by the United Nations, the Kyiv International Institute for Sociology, the International Republic Group, and more, he concluded that, “[a]t a minimum, two -thirds of the Crimea did not vote for the joining of Crimea to Putin’s Russia.”48 Thus, while Russia may have been able to make it appear that their annexation of Crimea was in compliance with the “mutual consent” between national authorities provision of their constitution, in reality, there is little reliable evidence to point to the fact that the majority of Crimean citizens were willing to join the Russian Federation. The annexation, therefore, does not honor the procedure for annexation as outlined in Article 67 of the Russian Constitution.
A. Legal Protection for Civil Rights in the Russian Federation
As with the Soviet Constitution of 1936, the Russian Federation’s Constitution guarantees several civil rights and liberties for Russian citizens, with Article 29 providing for freedom of speech, expression, and the spreading of information.49 Article 19 ensures that Russian citizens shall enjoy equality of rights and freedoms “ regardless of sex, race, nationality,
45 Id
46 Id
47 Day Blakely Donaldson, Crimean Referendum: 34 Percent, Not 97 Percent, Says Former Russian Government Adviser, GUARDIAN LIBERTY VOICE (Mar. 25, 2014), https://guardianlv.com/2014/03/crimea -referendum-34-percent-not-97-percent-saysformer-russian-government-adviser/.
48 Id.
49 KONST. RF art. 29 (Russ.).
language, origin, property and official status, place of residence, religion, convictions, membership of public associations, and also of other circumstances”;50 Articles 46 and 47 assure Russian citizens the right to judicial protection of their rights and freedoms, as well as the right to have their cases examined in court by a judge and jury.51 However, like its predecessors, the Russian Federation has been criticized for not honoring its citizens’ civil rights, while Russia’s judiciary has been criticized for being partial to the influence of the Kremlin and the broader Russian government. 52 This phenomenon is especially observable when examining rulings of a political nature.53 Evidently, the trend of Russian courts being influenced by political pressure is one that can still be observed in modern Russia. Some of the most relevant examples of this phenomenon can be found in the RCC’s rulings regarding the annexation of Ukraine’s Donetsk, Luhansk, Zaporizhzhia, and Kherson Oblasts, which were passed down on October 2, 2022.
VIII. RULINGS OF THE RUSSIAN CONSTITUTIONAL COURT REGARDING THE ANNEXATION OF UKRAINIAN OBLASTS
The contemporary RCC works in accordance with national legislation on the admission of a new subject to Russia when handling foreign annexations.54 Article 7 of this legislation states that an international treaty may regulate the procedure of acquiring Russian citizenship for citizens of a foreign state and the process by which they are extended full legal status as a citizen of the Russian Federation, the effect of the Russian Federation’s legislation in the annexed territory, and the functioning of local s elfgovernment bodies in foreign territories. 55 Further, Article 7 states that “An
50 Id. art. 19.
51 Id. art. 46, 47.
52 U.S. Dep’t of State, 2022 Country Reports on Human Rights Practices: Russia , https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/russia/.
53 Id.
54 Federal Constitutional Law No. 6 -FKZ of 17 Dec. 2001, art. 7.
55 Id.
international treaty may establish a transitional period during which the new entity must be integrated into the economic, financial, credit and legal systems of the Russian Federation, as well as into the system of state authorities of the Russian Federation.” 56 Lastly, Article 7 affirms that after signing an international treaty, the president of the Russian Federation must submit a request to the RCC to verify the t reaty’s compliance with the Russian Constitution.57 This procedure was followed for Ukraine’s Donetsk,58 Luhansk,59 Zaporizhzhia,60 and Kherson Oblasts,61 thus producing four identical rulings that affirmed the legitimacy of the annexations. For simplicity, this Note will simply refer to the Donetsk, Luhansk, Zaporizhzhia, and Kherson rulings as the “[rulings regarding] the annexed Oblasts,” rather than referencing each by name.
The RCC’s justification for the admission of the annexed Oblasts is rooted in the idea that as a result of the “arbitrary decisions of the Soviet authorities,” the Ukrainian SSR was formed from lands with a predominantly Russian population.62 While this did not necessarily entail a “violation of the rights of citizens living in these respective territories,” the collapse of the USSR signaled a turn for the worse. 63 The “2014 anti-constitutional coup in Kyiv” referencing the overthrow of former Ukrainian President Viktor Yanukovych at the end of Euromaidan protests and the Revolution of Dignity darkened the situation, as Ukrainian authorities influenced by the
56 Id.
57 Id.
58 Constitutional Court of the Russian Federation, “On the case of checking the constitutionality of the international Treaty between the Russian Federation and the Donetsk People's Republic,” No. 36 -P/2022, Oct. 2, 2022.
59 Constitutional Court of the Russian Federation, “On the case of checking the constitutionality of the international Treaty between the Russian Federation and the Luhansk People's Republic,” No. 37 -P/2022, Oct. 2, 2022.
60 Constitutional Court of the Russian Federation, “On the case of chec king the constitutionality of the international Treaty between the Russian Federation and the Zaporizhzhia region,” No. 38 -P/2022, Oct. 2, 2022.
61 Constitutional Court of the Russian Federation, “On the case of checking the constitutionality of the international Treaty between the Russian Federation and the Kherson region,” No. 39-P/2022, Oct. 2, 2022.
62 Constitutional Court of the Russian Federation, supra notes 58-61.
63 Constitutional Court of the Russian Federation, supra notes 58-61.
West allegedly began to pursue policies that discriminated against ethnic Russians.64 Thus, the full-scale invasion of Ukraine on February 24, 2022, was according to the RCC a response to an official request by the Donetsk and Luhansk People’s Republics such that they would be able to practice the right to self-determination outside Ukraine.65
With regard to the rights of citizens in the annexed Oblasts, the rulings of the RCC are remarkably vague. In fact, civil rights are only discussed twice, with the first instance being a guarantee that all peoples living in the annexed Oblasts, in compliance with Article 68, part 3 of the Russian Constitution, will have the right to “preserve their native language and create conditions for its study and development.”66 The second mention comes as the Court discusses Article 8 of the annexation treaties, stating that while the Russian Federation aims to integrate the annexed Oblasts into the Russian legal system, the state still intends to ensure that the rights, freedom s, and legitimate interests of citizens and organizations in the annexed territories are still realized.67 The exact rights and freedoms that will still be realized are notably absent from the ruling, as is the RCC’s definition of what can be considered a “legitimate interest.” The disparity is obvious compared to documents such as the 1993 Constitution, which explicitly and meticulously lines out the rights of man and citizen across 47 Articles. 68 And, given that the Russian Federation consistently violates its own citizens’ civil rights despite those rights being so explicitly outlined, the ambiguity in the RCC’s rulings does not bode well for Ukrainian citizens’ futures. Evidently, the RCC is not preoccupied with affirming the rights of Ukrainian citizens in its occupied territories, but rather with legitimizing Russia’s imperial ambitions. It is possible that this ambiguity is deliberate as discussed in the next section, the ability to legislate broadly may prove to be a road the RCC wants
64 Id.
65 Id.
66 Id.
67 Id.
68 KONST. RF § 2 (Russ.).
to keep open if it is truly trying to aid the Kremlin in its irredentist imaginations.
A.
Potential Consequences of the Russian Constitutional Court’s Approach to Foreign Annexation
Though it is too early to determine the extent to which citizens of the annexed Ukrainian Oblasts will be afforded or stripped of their civil rights under the Russian Federation, the ambiguity of the RCC in its affirmation of these rights, combined with Russia’s history of civil rights violations, does not bode well for the future. Given the way Russia has disregarded and violated the legal boundaries of Ukraine’s citizens in the past, as well as the narrative pushed by Putin that Ukraine is a historically Russian land that must be returned to Moscow,69 it is probable that the Russian Federation will disregard Ukrainian citizens’ civil rights and liberties despite the RCC’s affirmation that the rights and freedoms of citizens in the annexed Oblasts will still be realized. Thus, a situation similar to that of Ukraine in the Soviet Union in which civil rights-violating attempts were made to Russify Ukrainians may arise. A clear example pointing to this possibility can be seen in the establishment of 21 “filtration camps” that have been set up for the “interrogation, processing, and detention” of Ukrainian citizens in Donetsk Oblast.70 At the Olenivka prison site, Yale researchers have already identified earth that has been disturbed in a way “consistent with graves.”71 To counter civil and even human rights violations such as these, the int ernational community must take several steps to protect Ukraine’s territorial integrity. Support for Ukraine’s military must continue, with far more countries providing equipment and training, as well as sharing intelligence. Additionally, political and diplomatic negotiations may be held, though these must be done with the
69 Vladimir Putin, On the Historical Unity of Russians and Ukrainians , THE KREMLIN (Jul. 12, 2021), http://en.kremlin.ru/events/president/news/66181.
70 Colin Poitras, Yale Researchers Identify 21 Sites in Donetsk Oblast, Ukraine Used for Civilian Interrogation, Processing, and Detention , YALE SCHOOL OF PUBLIC HEALTH (Aug. 25, 2022), https://ysph.yale.edu/news -article/yale-researchers-identify-21-sites-indonetsk-oblast-ukraine-used-for-civilian-interrogation-processing-and-detention/. 71 Id.
goal of returning Donetsk, Luhansk, Zaporizhzhia, Kherson, and Crimea to Ukraine, rather than settling the conflict by encouraging Ukraine to officially cede these territories to Russia. If Ukraine’s sovereignty and territorial integrity are not defended, not only will the civil rights of citizens in Russianoccupied territories be at risk, but so will the civil rights of all Ukrainians, as well as those of all citizens living in post -Soviet countries. Putin’s imperial imaginations cannot be fed into by “strategic” cessions of territory; they must be shut down before it is even possible for them to cross over foreign borders.
IX.
CONCLUSION
In its time, Chornovil’s proclamation that the “rotten Russian Empire” was in its death throes was both powerful and poignant. But with the political zeitgeist of the 1990s far behind, Putin’s attempts to rebuild the Soviet Union demonstrate that Russian imperialism and irredentism are not tokens of a time gone and past. As they lack specifically defined protections or privileges, the rulings of the RCC regarding the annexation of Ukraine’s Donetsk, Luhansk, Zaporizhzhia, and Kherson Oblasts set a dangerous precedent for the civil rights of citizens in occupied territories. With leaked reports from the Kremlin revealing plans to annex both Belarus and Moldova, the legal actions the RCC has taken to justify the annexation of Ukrainian territory and the lack of civil rights protections outlined in their rulings cannot be ignored.72 Given its imperial history as well as the common trend of failing to protect the civil rights of annexed populations the trend Russia is setting with the people of eastern Ukraine will undoubtedly continue i f action is not taken to affirm the rights of these citizens. With the Yale researchers’ finding of “filtration camps” in Donetsk, it is clear that action to protect Ukrainian citizens’ rights and safety is needed more urgently than ever.
72 Anna Myroniuk, Leaked Document Reveals Alleged Kremlin Plan to Take Over Belarus by 2030, KYIV INDEPENDENT (Feb. 21, 2023), https://kyivindependent.com/investigations/leaked -document-reveals-alleged-kremlin-planto-take-over-belarus-by-2030.
Unfortunately, Putin’s firm grip on the Russian government, media, and population makes it extremely difficult to overturn or disregard the lack of regard for civil rights that is entrenched in the nation’s history. According to a poll by the independent Levada Center, approximately 75% of Russian citizens view the war in Ukraine favorably. 73 Therefore, it is unlikely that the solution to this modern imperialism lies within the borders of the Russian Federation. To protect the rights of those in territories that Russia has expressed interest in subjugating Ukraine, Belarus, Moldova, and others it is imperative that other forms of protection are put in place to ensure that the citizens of these countries are guaranteed not only basic civil liberties, but also a life of peace and prosperity. Whatever forms these protections come in international organizations, alliances, etc. take a secondary seat to their primary purpose of protecting the people who vest their faith in them. Now more than ever, such protections are crucial not just for the people of Ukraine, but for all who might be affected by the most dangerous European conflict since World War II. * * *
This Note was edited by Jonathan Katz
73 January Events, LEVADA CENTER (Feb. 17, 2023), https://www.levada.ru/2023/02/17/sobytiya-yanvarya/.
JUDGE, JURY, ROBOT EXECUTIONER: ARTIFICIAL INTELLIGENCE AND ALGORITHMS IN THE LEGAL SYSTEM
Aidan Hughes*1
Recent years have witnessed exponential growth in the use of artificially intelligent algorithms in the justice system. These algorithms have influenced critical elements of the legal process, including data collection and privacy, case outcome prediction, and sentencing, while raisi ng new issues concerning bias, transparency, and due process. This Note analyzes the legal and ethical implications of using such algorithms in court. Specifically, this Note compares limits placed on algorithmic data collection by the General Data Protection Regulation (GDPR) in the European Union and the California Consumer Privacy Act of 2018 (CCPA), and identifies shortcomings in both. This Note then reviews State v. Loomis (2016), a Wisconsin Supreme Court case holding that a trial court’s reliance upo n certain proprietary software in conducting risk assessments for sentencing purposes does not violate a defendant’s right to due process. This Note proceeds to evaluate one measure taken by Congress to uphold the proper and fair use of artificially intell igent algorithms, in the form of the proposed Algorithmic Accountability Act of 2022. The Algorithmic Accountability Act highlights the growing recognition of the potential harms associated with algorithmic decision-making systems. Ultimately, this Note ar gues that artificial intelligence and algorithmic assessments used in the legal system for data collection and privacy, case outcome prediction, and sentencing need significant reform and careful examination in the future.
* B.S. Candidate for Psychology, Fordham College at Rose Hill, Class of 2025. Thank you to everyone on the Fordham Undergraduate Law Review , especially the Editorial Board. Thank you specifically to Anthony Vu (Co -Managing Editor), Nicholas Wolf (Executive Notes Editor), and Margarita McCoy (Senior Editor) for your consistent feedback and support throughout the publication process. I would al so like to thank my Forensic Psychology professor, Anthony Fortuna, for my introduction to and interest in the concept of algorithmic risk assessment. Lastly, I would like to thank my family and friends, especially my mom and dad, for their continued suppo rt and guidance.
I. INTRODUCTION
The mathematical rules and procedures used to process data for legal predictions and decisions are known as algorithms. Over the past few decades, legal professionals have gradually implemented artificial intelligence and machine learning algorithms in their work. Artificial intelligence (AI) is an umbrella term first used at a conference at Dartmouth College in the United States in 1956.2 The term refers to computers performing advanced cognitive tasks, such as learning, reasoning, and analysis, that were once thought to be the sole province of humans.3 Algorithms and AI have since come to underpin legal research databases such as LexisNexis and Westlaw, and the International Business Machines Corporation’s Watson AI system can distill large volumes of case law into compact answers to natural language queries in place of less intuitive keyword searches. 4 Other research tools like Ravel
2 Paul Grimm, Maura Grossman, Sabine Gless & Mireille Hildebrandt, Artificial Justice: The Quandary of AI in the Courtroom , JUDICATURE INTERNATIONAL (Sept. 2022), https://judicature.duke.edu/articles/artificial -justice-the-quandary-of-ai-in-the-courtroom/.
3 Id
4 See Watson Discovery: AI for Legal Insights , IBM, https://www.ibm.com/cloud/watsondiscovery/legal-research (last visited June 20, 2023).
Law (acquired by LexisNexis in 2017) offer AI-driven insights into the sorts of arguments and case citations favored by judges.5
Two prominent privacy laws concerning artificial intelligence are the European Union’s (EU) General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). This Note will analyze the treatment of AI under both frameworks and examine potential legislation that could mitigate some of their drawbacks, such as the proposed Algorithmic Accountability Act (AAA). This Note will also explore the use of algorithms in the courtroom, concentrating on the 2016 Wisconsin Supreme Court case State v. Loomis. This Note will suggest that the use of the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment tool during sentencing, even within the limitations announced by the court, violates a defendant’s due process rights by depriving the defendant of the opportunity to question its methodology. Owing to its proprietary nature, the tool’s creator, Northpointe, Inc., has refused to disclose its methodology in court proceedings.6 This is but one example of the troubling constitutional and ethical implications of employing AI in legal decisionmaking. This Note will argue that lawmakers must pursue significant reform in regulations surrounding the application of artificial intelligence and algorithmic assessment to data collection and privacy, case outcome prediction, and sentencing to ensure that such technologies uphold the fundamental principle of fairness.
II. ALGORITHMIC DATA COLLECTION
“As artificial intelligence evolves, it magnifies the ability to use personal information in ways that can intrude on privacy interests by raising analysis
5 See Press Release, LexisNexis, LexisNexis Announces Acquisition of Ravel Law (June 8, 2017), https://www.lexisnexis.com/community/pressroom/b/news/posts/lexisnexisannounces-acquisition-of-ravel-law.
6 Ellora Israni, Algorithmic Due Process: Mistaken Accountability and Attribution in State v. Loomis, HARV. J.L. & TECH DIG. (Aug. 31, 2017), https://jolt.law.harvard.edu/digest/algorithmic -due-process-mistaken-accountability-andattribution-in-state-v-loomis-1.
of personal information to new levels of power and speed.” 7 These words from former U.S. Department of Commerce Secretary Cameron F. Kerry highlight the privacy concerns that come with the exponential growth of AI. Crafting measures for regulating and improving the fair use of artificial intelligence has proven to be challenging. The line between protec ting consumers from the negative aspects of AI data collection and allowing for AI development and improvement is difficult to draw. 8 Suggestions for combating these issues present questions about the extent to which legislation should safeguard privacy interests and address algorithmic bias.9 One initiative for which numerous congressional leaders and privacy stakeholders have advocated is shifting the responsibility of individual privacy protection from consumers to the actual businesses that collect th eir data. Under this approach, companies would be required to rectify biased or discriminatory methods of data processing, rather than merely providing consumers with the information necessary to make an informed choice whether to share data. 10 In addition, there is increasing receptiveness to data legislation addressing the risk of discrimination in personal data processing through accountability measures. One such measure is explainability, which tracks the ability of users to understand and interpret how an artificial intelligence system arrives at its decisions or predictions.11 A privacy regulation that utilizes explainability primarily for bridging the gap between consumers and AI is the EU’s GDPR.
7 Cameron F. Kerry, Protecting Privacy in an AI -driven World, THE BROOKINGS INSTITUTION (Feb. 10, 2020), https://www.brookings.edu/research/protecting -privacy-inan-ai-driven-world/.
8 Id.
9 Id.
10 Id. 11 Id.
A. General Data Protection Regulation
The GDPR, published in 2016 and first implemented in 2018, is a privacy and security law that imposes obligations on organizations that collect and record the data of citizens of the EU. 12 For automated decisions with legal or similarly significant effects–such as those concerning employment, credit, or insurance coverage–it mandates that individuals have access to a human who can review the decision and explain its logic. 13 This requirement incorporates a “human-in-the-loop” component and an element of due process to check potentially unfair outcomes.14 As mentioned above, explainability entails identifying algorithmic decisions, deconstructing specific choices, and establishing a channel through which an individual can seek justification.15 Essentially, it is a means of modifying a machine learning model’s output in a way that is more understandable for humans. However, reverse-engineering algorithms based on machine learning can be challenging or even impossible, particularly as machine learning becomes more sophisticated.16
The GDPR’s comprehensive regime for data privacy, however, comes with daunting compliance costs for businesses and organizations, particularly those operating outside of the EU. A March 2018 calculation found that the 500 largest corporations worldwide were on track to spend about $7.8 billion to comply with the GDPR.17 Violators can be punished with fines of up to four percent of their total worldwide annual revenue. 18 Non-member countries looking to digitally engage with EU markets risk losing access to the world’s largest trading bloc if they fail to comply with the GDPR’s
12 Parliament and Council Regulation 2016/679, 2016 O.J. (L 119) 1 [hereinafter “GDPR”]; see also Ben Wolford, What is GDPR, the EU’s New Data Protection Law? , GDPR.EU, https://gdpr.eu/what-is-gdpr/ (last visited June 20, 2023).
13 Kerry, supra note 7.
14 Id
15 Id
16 Id
17 Cara Mannion, Data Imperialism: the GDPR’s Disastrous Impact on Africa’s ECommerce Markets, 53 VAND. J. TRANSNAT’L L. 685, 689 (2020).
18 GDPR, art. 83, at 82-83.
extensive regulations, and may also face a loss of reputation among prospective investors and customers trained by the law and its derivatives to be increasingly sensitive to privacy issues.19 This risk is especially pronounced for regions like Africa with burgeoning but fragile e -commerce sectors that lack a developed system of formal privacy protections. 20 The GDPR’s own strict penalties for non -compliance have also raised concerns over their disproportionate impact on small and medium -sized enterprises. These businesses are held to virtually identical standards as large corporations, on the rationale that data collected by a company of any size is vulnerable to misuse.21 Ultimately, while the GDPR represents an important step toward protecting personal data, it is crucial to critically examine its limitations and consider possible improvements to find a more appropria te balance between individual privacy rights and broader societal interests.
Oxford’s Alan Turing Institute Research Fellow Sandra Wachter has found that the “GDPR is likely to only grant individuals information about the existence of automated decision-making and about ‘system functionality,’ but no explanation about the rationale of a decision.”22 System functionality concerns the “logic, significance, envisaged consequences, and general functionality” of an automated system–for instance, the types of information considered and the range of intermediate outcomes in the decision -making process.23 The “why” of a particular decision, by contrast, reveals how an individual’s specific circumstances were factored into and weighed during the process.24 Wachter notes that the “right to explanation” is mentioned only once in the regulation and resides in a recital, a portion of an act that provides
19 Mannion, supra note 17, at 694-95.
20 Id. at 687-88.
21 See Ben Wolford, Does the GDPR Apply to Companies Outside of the EU? , GDPR.EU, https://gdpr.eu/companies-outside-of-europe/ (last visited June 20, 2023).
22 Sandra Wachter, Towards Accountable AI in Europe? , THE ALAN TURING INSTITUTE (2017), https://www.turing.ac.uk/news/towards -accountable-ai-europe.
23 Sandra Wachter, Brent Mittelstadt & Luciano Floridi, Why a Right to Explanation of Automated Decision -Making Does Not Exist in the General Data Protection Regulation , 7 INT’L DATA PRIVACY LAW 76, 78 (2017).
24 Id.
guidance on understanding the law’s operational aspects but lacks the legal power to initiate stand-alone rights.25 From a practical perspective, a full explanation of a particular decision may be rendered impos sible by several technical factors, most notably the use of complex analytics and decisionmaking methods.26 Ambiguity over the legal status and scope of the “right to explanation” collides with the severity of the non-compliance sanctions mentioned previously, making inadvertent violations both more likely and more costly.
B. California Consumer Privacy Act and Proposed Legislation
The CCPA is a privacy law enacted in California in 2018.27 The law gives California consumers control over the personal information that businesses collect about them, including the right to know what information is being gathered and the right to request its deletion . 28 The CCPA also grants users the right to opt out of the sale of their personal information through what is known as a Do-Not-Sell (DNS) provision.29 The prevailing issue lies with the limitations and challenges this opt-out right presents.
The opt-out right has been criticized for placing the burden of protecting privacy on individuals rather than businesses and organizations. A 2020 study performed by the Consumer Reports’ Digital Lab looked into the DNS provision of the CCPA and found that at least twenty -four companies in the data broker registry do not display a DNS link on their homepage, with an additional five companies having DNS links no tester could locate. 30 This presents compliance concerns, as the Act explicitly requires that these links
25 Id. at 80.
26 Id. at 79.
27 California Consumer Privacy Act of 2 018, Cal. Civ. Code §§ 1798.100 -1798.199.100 (Deering 2023) (amended 2020) [hereinafter “CPRA”].
28 Id. §§ 1798.100-1798.105.
29 Id. § 1798.120.
30 Maureen Mahoney, Consumer Reports Digital Lab, California Consumer Privacy Act: Are Consumers’ Digital Rights Protected? 17 (Oct. 1, 2020), https://advocacy.consumerreports.org/wp -content/uploads/2021/05/CR_CCPA-AreConsumers-Digital-Rights-Protected_092020_vf2.pdf.
be “clear and conspicuous.”31 Moreover, some companies’ opt-out processes are so onerous that a consumer’s ability to exercise the corresponding right is substantially impaired.32 Examples of opt-out complications include subjecting users to confusing multi-step processes, requiring submission of government ID that consumers are hesitant to provide, and conditioning site access on acceptance of cookies.33
The CCPA does improve upon the GDPR by explicitly grouping inferences drawn from collected data within the category of personal information, to the extent that such inferences are used “to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predisposition, behavior, attitudes, intelligence, abilities and aptitudes.”34A 2021 interpretive opinion from the California Office of the Attorney General clarified that the right to disclosure established by the CCPA applies to all inferences derived from the enumerated types of personal information,35 regardless of whether the information is obtained from public records, consumers themselves, third-party brokers, or prior inferences produced through proprietary systems.36 By contrast, the express recognition that companies can create as well as receive personal data present within the guidelines of the EU advisory body for the GDPR’s predecessor, the Data Protection Directive does not appear in the GDPR’s definition of personal data.37
31 Cal. Civ. Code § 1798.135(a)(1).
32 Mahoney, supra note 30, at 24.
33 Id. at 24-31.
34 Cal. Civ. Code § 1798.140(v)(1)(K).
35 The CCPA defines personal information to include, among other things, personal identifiers (e.g., name or email address), property and purchase records, biometric information, browsing history, geolocation data, profes sional information, and education information. See id. § 1798.140(v)(1).
36 Off. of Att’y Gen., State of California, Opinion No. 20 -303 on Applicability of CCPA’s Right to Disclosure to Inferences Generated Internally by Businesses 11 (Mar. 10, 2022), https://oag.ca.gov/system/files/opinions/pdfs/20 -303.pdf.
37 Jordan M. Blanke, Protection for ‘Inferences Drawn’: A Comparison Between the General Data Protection Regulation and the California Consumer Privacy Act , 2 GLOBAL
But other aspects of the wide net cast by the CCPA threaten to unduly inhibit the development of AI in areas that implicate privacy interests to a far smaller degree. Whereas the GDPR governs only those technologies that have legal consequences for individuals, the CCPA ostensibly extends to even the most trivial of automated decision-making processes. Thus, California businesses are required to accommodate the same rights to disclosure, correction, deletion, and so forth for both an algorithm that calculates someone’s credit score and one that recommends products base d on a user’s location and demographics.38 A consumer’s concern with the transparency and accuracy of a process that impacts their loan prospects is likely to outstrip similar reservations over the ease of discovering relevant products on a website, but heavy compliance burdens for simple recommendation systems might discourage experimentation that could yield significant advances in AI pattern recognition.
Overall, the privacy-conscious use of artificial intelligence in data collection is hindered by the lack of precision and clarity in laws like the GDPR and the CCPA. The 117th Congress has proposed numerous bills building upon the affirmative data privacy rights contained within this legislation at the federal level. 39 One such bill is the Information Transparency and Personal Data Control Act (ITPDCA), which calls for the United States to “develop a balanced, high -standard digital privacy framework that complements global standards.” 40 The Act would mandate reasonable limits on what data companies can col lect and would allow consumers to access and correct personal information, as well as to opt-in and opt-out of the disclosure of specific data. 41 These reforms and expansions of
PRIVACY L. REV. 81, 85-86 (2020). The GDPR broadly defines personal data as “any information relating to an identified or identifiable natural person.” GDPR, art. 4(1), at 33.
38 Eli MacKinnon & Jennifer King, REGULATING AI THROUGH DATA PRIVACY, STANFORD INSTITUTE FOR HUMAN-CENTERED ARTIFICIAL INTELLIGENCE (Jan. 11, 2022), https://hai.stanford.edu/news/regulating -ai-through-data-privacy.
39 Robert Rembert, TikTok, WeChat, and National Security: Toward a U.S. Data Privacy Framework, 74 OKLA. L. REV. 463, 494 (2022).
40 Information Transparency & Personal Data Control Act, H.R. 1816, 117th Cong. § 2(1) (2021).
41 Id. § 2(6)(a-f).
preexisting data collection laws would facilitate the future improvement of algorithms while ensuring that privacy concerns remain at the fore.
III. THE HISTORY OF ALGORITHMS IN THE JUSTICE SYSTEM
The use of algorithms in the justice system has faced considerable controversy. One of the main concerns is that algorithmic decision-making may reinforce existing biases and discrimination in the justice system.42 For example, predictive policing algorithms have been shown to disproportionately target minority communities, while risk assessment tools have been criticized for relying on incomplete data and perpetuating racial disparities in conviction percentages. 43 One primary example of discriminatory risk assessment can be found in the Prisoner Assessment Tool Targeting Estimated Risks and Needs (PATTERN). PATTERN is a risk assessment tool developed by the Department of Justice (DOJ) in 2019 that seeks to predict the risk of recidivism within the three-year period following an individual’s release from a Bureau of Prisons facility. 44 In the initial version of PATTERN, only 7% of African American males received minimum risk classification, whereas 30% of white males did.45 This gap may stem in part from racial differences in arrest rates relative to offense rates, which in turn may be the product of discriminatory ex ercises of police discretion in such matters as choosing which areas to patrol heavily and which
42 Kelly Roberts Freeman, Cathy Hu & Jesse Jannetta, RACIAL EQUITY AND CRIMINAL JUSTICE RISK ASSESSMENT 4-5, URBAN INSTITUTE (Mar. 2021), https://www.urban.org/sites/default/files/publication/103864/racial -equity-and-criminaljustice-risk-assessment.pdf.
43 Id.
44 Amy B. Cyphert, Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk, 51 SETON HALL L. REV. 331, 347 (2020).
45 Alice Xiang, Riccardo Fogliato, &Alex Chouldechova, Partnership on AI, Algorithmic Assessment and COVID-19: Why PATTERN Should Not Be Used 3 (Apr. 30, 2020), https://partnershiponai.org/why -pattern-should-not-be-used-the-perils-of-usingalgorithmic-risk-assessment-tools-during-covid-19/.
people or vehicles to stop.46 Because PATTERN was designed using arrest data (as the closest proxy for the prevalence of criminal acts), the tool technically predicts the likelihood of re-arrest rather than of reoffending, thus importing any racial bias in arrest practices into its own calculations. 47 In 2020, the nonprofit investigative organization ProPublica revealed that the DOJ had lowered the risk-level thresholds for PATTERN in response to the COVID-19 pandemic without making any public announcement, making it more difficult for inmates to qualify for early release or home confinement.48 Another prominent risk assessment algorithm that has generated crit icism is the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) tool, the subject of State v. Loomis.
A. State v. Loomis
In February 2013, Eric Loomis was arrested in Wisconsin and found guilty of, among other things, first-degree recklessly endangering safety and eluding an officer in a vehicle he drove in a drive-by shooting.49 During sentencing, an officer presented a pre-sentence investigation that used COMPAS, a risk assessment tool developed by Northpointe, Inc., that calculates the likelihood of recidivism based on an interview with the offender and the offender’s criminal history. Because Northpointe regards COMPAS’s methodology as a trade secret, it provides only the final risk score to courts without revealing how various risk factors are weighed or how they interact to produce the score. 50 After being sentenced to six years of imprisonment and five years of extended supervision, Loomis moved for post -conviction relief, seeking to vacate his sentence and receive a new sentencing hearing on the ground that the trial court’s consideration of COMPAS violated his due
46 Id. at 5.
47 Id.
48 Ian MacDougall, Bill Barr Promised to Release Prisoners Threatened by Coronavirus Even as the Feds Secretly Made It Harder for Them to Get Out , PROPUBLICA (May 26, 2020), https://www.propublica.org/article/bill-barr-promised-to-release-prisonersthreatened-by-coronavirus-even-as-the-feds-secretly-made-it-harder-for-them-to-get-out.
49 State v. Loomis, 2016 WI 68, ¶ 11, 881 N.W.2d 749, cert. denied, 582 U.S. 933 (2017).
50 Id. at 754.
process rights.51 In particular, Loomis argued that using a COMPAS risk assessment at sentencing violates a defendant’s right to be sentenced based on accurate information, the right to individualized sentencing, and the right to gender-neutral sentencing (since COMPAS takes gender into account).52 The Wisconsin Supreme Court rejected these three claims, explaining as to the first that Loomis had the opportunity to verify the accuracy of the responses to the static factors (e.g., number of prior arrests) incorporated into the algorithm and published in pre-sentence investigation reports and that validation studies conducted in other states confirmed that the tool possessed a sufficient degree of predictive accuracy. 53 As to the second challenge, the court noted that the trial judge had relied upon COMPAS in combination with a multitude of other factors specific to Loomis (e.g., the seriousness of the crime) without assigning the score a determinative value. 54 Moreover, in contributing to the completeness of the information available to the trial court, COMPAS positively aided in crafting an individualized sentence. 55 As to the third argument, the court found that COMPAS’s use of gender was necessary to ensure the accuracy of the tool given the undisputed “statistical evidence that men, on average, have higher recidivism and violent crime rates compared to women.”56 Loomis also failed to show that the trial court, which appeared to treat his COMPAS score as a “corroborat[ing]” factor given “little to no weight” in formulating his sentence, actually relied on his gender. 57
While upholding Loomis’s sentence, the Wisconsin Supreme Court placed several restrictions on the use of COMPAS for sentencing purposes. The algorithmic score may be cited only in conjunction with a rationale that
51 Due process is the right to fair treatment through the judicial system. Under the Due Process Clauses of the Fifth and Fourteenth Amendments, “no person . . . shall be deprived of life, liberty, or property, without due process of law.” U.S. Const., amend. V; accord U.S. CONST., amend. XIV.
52 Loomis, 881 N.W.2d at 757.
53 Id. at 761-63.
54 Id. at 764.
55 Id. at 765.
56 Id.
57 Id. at 767.
would independently justify the sentence, and the tool cannot be used to calculate a sentence’s length or severity.58 Loomis appealed to the U.S. Supreme Court but was denied.
Even assuming courts follow the above limitations, it can still be argued that using COMPAS in sentencing decisions violates due process. The court’s contention that defendants can use external information to contest their scores rings hollow when the extent to which the algorithm has already accounted for that information, or the extent to which the algorithm’s general accuracy might be improved if new factors were introduced, cannot be determined by the defendants.59 In cases where the sentencing court is not nearly as clear regarding the weight afforded to COMPAS, the relative significance of gender in the algorithm also unknown might bear on a finding of discrimination. Given the grave, life-altering consequences of error at the sentencing stage, courts should be exceptionally wary of depriving defendants of the comprehensive justification that has long been an aim of the American justice system.
ProPublica analyzed the COMPAS recidivism algorithm as the case proceeded and identified several discriminatory discrepancies to the effect that blacks were frequently overpredicted for recidivism. For instance, “black defendants who did not recidivate over a two -year period were nearly twice as likely to be misclassified as higher risk compared to their white counterparts (45 percent vs. 23 percent).”60 Similarly, “even when controlling for prior crimes, future recidivism, age, and gender, black defendants were 45 percent more likely to be assigned higher risk scores than white defendants.”61 While Loomis did not press a challenge for racial bias, COMPAS has displayed alarming discriminatory proclivities on this front that further disqualify it from the court setting.
58 Id. at 769.
59 But see id. at 761-62 (“Loomis had an opportunity to challenge his risk scores by arguing that other factors or information demonstrate their inaccuracy.”).
60 Jeff Larson, Surya Mattu, Lauren Kirchner & Julia Angwin, How We Analyzed the COMPAS Recidivism Algorithm , PROPUBLICA (May 23, 2016), https://www.propublica.org/article/how-we-analyzed-the-compas-recidivism-algorithm.
61 Id.
B. The Algorithmic Accountability Act
The Algorithmic Accountability Act (AAA) is a proposed federal law from 2019 that aims to ensure that companies using AI and machine learning systems are held accountable for the effects of these technologies. 62 The AAA would require companies to evaluate their algorithms for bias and discrimination, obtain consent before collecting sensitive personal data, and notify the FTC of the avenues through which individuals can correct data. 63 It would also require companies to conduct impact assessments for high-risk AI use, such as facial recognition technology.64 Ultimately, the bill is intended to alleviate concerns about the lack of transparency and accountability in emerging AI systems, as well as to ensure that these systems are developed and deployed fairly and justly. Much like ITPDCA, the AAA would help offset the individual consumer rights issues within the GDPR and CCPA discussed above. It would also subject automated risk assessment algorithms to closer scrutiny for bias at the federal level.
IV. CONCLUSION: THE FUTURE OF TECHNOLOGICAL JUSTICE
In the past fifty years, artificial intelligence and algorithms have infiltrated everyday life. From data collection to recidivism prediction and sentencing, technology is beginning to take on numerous roles that humans traditionally held. However, heightened ethical concerns attend the proliferation of AI and algorithms in the legal system. Inaccuracies in risk assessment tools and the lack of transparency within data-collecting algorithms may be fixed in the future. Still, the ever-present need for human opinion and decision-making belies the idea of the legal field ever becoming fully autonomous.
62 Algorithmic Accountability Act of 2022, H.R. 6580, 117th Cong.
63 Id.
64 Id. § 3-4.
Faults within privacy laws such as the GDPR and CCPA should drive companies to limit the role that algorithms currently play in handling sensitive personal information. Biases and discrimination within proprietary risk assessment tools such as PATTERN and COMPAS should similarly prevent AI from becoming the primary decision-maker in a courtroom. Before AI and algorithms play a more prominent role in the legal system, carefully crafted and significant reform is needed to ensure that legal ethics concerns are met, due process and equal protection are upheld, and the l egal system remains fair and just. Legislation like ITPDCA that iterates upon existing, extensive data collection regulations like the GDPR and CCPA will mend misunderstandings that occur due to a lack of transparency. These refinements will also benefit the individual consumer by clarifying the concept of explainability and granting people both a better idea of the process of data collection and more control over their personal information. Further measures like the AAA help safeguard individuals’ right to due process through continuous federal oversight. Despite the exponential growth of AI and algorithms, there will always be a need for human judgment and ethical decision-making in the courtroom to prevent the Constitution from becoming but another inflexible parameter.
* * *
This Note was edited by Anthony Vu
THE FUTURE OF NATIVE AMERICA: A DISCUSSION OF INDIAN CHILD WELFARE AND TRIBAL SOVEREIGNTY IN HAALAND V. BRACKEEN
Danielle Barber*
The pending Supreme Court case Haaland v. Brackeen (2023) concerns the constitutionality of the Indian Child Welfare Act of 1978 (ICWA). ICWA addresses the forced removal of Indian children from their homes by the federal government, state governments, and private agencies while providing family members, tribal members, and members of all federally recognized tribes preferential treatment in adoption proceedings. ICWA’s policy of preferential placement is designed to preserve Native American heritage from the cultural damage inflicted by the historically oppressive behavi or of the federal government toward Native peoples. Furthermore, ICWA promotes increased political stability within tribal units, ensuring the protection of younger generations within the tribe and preventing excessive and unjust removal of children from t heir homes. The Brackeen family and others argue that these provisions are unconstitutional since they violate the anti-commandeering and nondelegation doctrines of the Tenth Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment. Th is case highlights the unique relationship between the United States and Native tribes as outlined by the Indian Commerce Clause, which grants Congress the enumerated plenary power to direct intercourse with all federally recognized tribes. The Supreme Court is investigating the extent of this plenary power, questioning whether the federal government’s actions have encroached upon the rights of the states to handle affairs of custody and adoption when the child is classified as Indian. T his Note will argue that the Supreme Court should uphold ICWA in Haaland v. Brackeen, as the Act violates neither the anti-commandeering doctrine of the Tenth Amendment nor the Equal Protection Clause of the Fourteenth Amendment.
* B.A. Candidate for Political Science and Spanish Language and Literature, Fordham College at Rose Hill, Class of 2025. I would like to thank the FULR Editorial Board, my friends, my family, and most importantly, my Dad for their continued support and inspiration.
III.
A. Morton v. Mancari
B. Worcester v. Georgia
C. Adoptive Couple v. Baby
A.
B.
I. INTRODUCTION
In 2016, a nine-month-old child of Navajo and Cherokee descent, addressed as A.L.M., was placed in the foster home of Chad Everet Brackeen and Jennifer Kay Brackeen.
1 State officials removed A.L.M. from his biological mother’s custody after finding the home unfit for the child’s well-being.2 In 2017, a Texas state court terminated A.L.M.’s biological parents’ custody rights, and the Brackeens sought to adopt the child.3 As the child was of Indian descent, the court notified the Navajo and Cherokee nations of the adoption proceedings, per the Indian Child Welfare Act of 1978 (ICWA). Soon after, representatives of the Navajo nation intervened in the proceedings. The rep resentatives petitioned and assured A.L.M.’s placement in a Navajo home with parents to whom he had no direct biological relation. The Navajo family was given preferential treatment in the placement proceedings as directed under the provisions of ICWA. However, the court rescinded the order after the
1 Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
2 Id. at 525.
3 Id.
Brackeens requested an emergency stay. In 2018, the Brackeens successfully adopted A.L.M. Later that year, the Brackeens sought to adopt the child’s half-sibling, addressed in the courts as Y.R.J., asserting th at it would be in both children’s best interest to be raised in the same household. Despite the Navajo nation finding a fitting home with Y.R.J.’s great -aunt, a Texas court granted the Brackeens primary custody of the second child while authorizing extended summertime visits to the child’s great-aunt. The court maintained that the Brackeens “did not provide clear and convincing evidence of good cause to justify a departure from the placement preferences.” 4
The Brackeens sued the Department of the Interior and then-Secretary Ryan Zinke, challenging the constitutionality of ICWA on a variety of counts, including violations of the Equal Protection Clause of the Fourteenth Amendment, the nondelegation doctrine of Article I of the Constitution, and the Tenth Amendment’s anti-commandeering and nondelegation doctrines. 5 The Brackeens asserted that ICWA interfered with their “intention and ability to provide a home to additional children.” 6 Furthermore, they argued that ICWA serves as a detriment to Indian children within the foster care system that are in need of a permanent home. 7 In 2018, the U.S. District Court for the District of Northern Texas ruled in favor of the plaintiffs including the Brackeens, two other families, and the states of Louisiana, Texas, an d Indiana finding ICWA to be unconstitutional.8 In August 2019, Secretary of the Interior Debra Haaland appealed the decision, and a three -judge panel of the Fifth Circuit reversed the prior ruling. 9
Later that year, the plaintiffs were granted an en banc hearing, which resulted in a fractured decision.10 The court reversed aspects of the previous decision, agreeing that ICWA did not violate the Constitution under Article I.11 Furthermore, the court reversed the decision that ICWA’s use of the
4 Id. at 526.
5 Id. at 520.
6 Id. at 526.
7 Id.
8 Id.
9 Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2021).
10 Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021) (en banc).
11 Id. at 7.
classifying term “Indian child” is a violation of the Equal Protection Clause of the Fourteenth Amendment.12 The court additionally affirmed that the preferential treatment of Indian families, as required by Section 1915(a)(3), did not violate the Equal Protection Clause, and would be invalidated “only when the classification bears no rational connection to any legitimate government purpose.”13 The court further affirmed that multiple provisions of ICWA violate the anti-commandeering doctrine of the Tenth Amendment since they “commandeer state agencies.” 14 More specifically addressing the nondelegation doctrine, the court claimed that ICWA’s provisions relating to preferential placement “unconstitutionally delegate federal legislative power” to Indian tribes.15 Lastly, the en banc circuit court reversed the ruling that the provisions of ICWA relating to the parental right to intervene, withdraw consent, and obtain information about the proceedings was unconstitutional.16 The court agreed that it was within the power of the federal government to “validly preempt state law” in this case.17 In February 2022, the Supreme Court granted certiorari upon receiving petitions from the Brackeen family, the State of Texas, the Cherok ee nation, and the United States.18 Following oral arguments in November 2022, the decision remains pending.
This Note will outline the historical background and current applications of ICWA, particularly in the context of Haaland v. Brackeen (2023). This Note will analyze the Court’s past decisions in cases of preferential treatment, consider the plenary powers given to Congress in the Indian Commerce Clause, and explicate the lower courts’ interpretations of the proceedings relating to ICWA. Ultimately, this Note will argue that the Supreme Court should uphold ICWA in Haaland since ruling otherwise could compromise
12 Id
13 Id. at 156.
14 Id at 304.
15 Id. at 341.
16 Id. at 323.
17 Id
18 Id., cert. granted, 142 S. Ct. 1205 (2022). See, e.g., Petition for Writ of Certiorari, Brackeen v. Haaland, No. 21 -380 at 5 (Sept. 3, 2021).
the future of any legislation that employs preferential placement, citing violations of the Equal Protection Clause and the Tenth Amendment.
A. History of Oppression
In previous centuries, the United States government generally approached the regulation of Indian commerce and intercourse through treaties as opposed to federal legislation.19 Such treaties had to be ratified by the Senate in order to be recognized by the federal government and regularly enforced. 20 However, treaty-making ended in 1871, when Congress determined that Indian tribes were not entities capable of such diplomatic rel ations.21 Prior to this decision, the federal government had already been claiming Native lands through coercion or force throughout the nineteenth and twentieth centuries. 22 Many Native Americans were relocated and confined to reservations.23
This process was bolstered by the Indian Removal Act of 1830, which was signed into law during Andrew Jackson’s presidency. 24 A majority of Cherokee, Creek, Choctaw, Chickasaw, and Seminole tribal lands were claimed by the federal government in accordance with its provisions.25 Tribal law was largely disregarded, with the interest of the federal government taking precedence.26 Additionally, the nineteenth century saw the enforcement of legislation that promoted assimilation, tribal terminations, and reallocation of lands.27 This process was further regulated under the
19 Ratified Indian Treat ies, 1722–1869. (1966). Washington, DC: National Archives and Records Service.
20 Id
21 Indian Appropriation Act of 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. § 71).
22 Joshua Carbaugh, The Indian Removal Act: A Legal Deception 2 (Apr. 26, 2017) (B.A. Honors Program thesis, USF St. Petersburg), https://digitalcommons.usf.edu/honorstheses/187/.
23 Id. at 3.
24 Indian Removal Act of 1830, ch. 148, 4 Stat. 411.
25 Carbaugh, supra note 20, at 3.
26 Id.
27 Id. at 33.
Dawes Act of 1887.28 Many tribes such as the Klamath eventually lost their rights to allotted reservation lands.29 Though progressive legislation, such as the Indian Reorganization Act of 1934, was event ually passed, these regulations were not properly enforced, with the oppression of Native Americans remaining largely unnoticed and unresolved by the United States government.30 Furthermore, in the late nineteenth and early twentieth centuries, many Indian children were forcibly removed from their families on reservations and enrolled in boarding schools.31 These efforts were undertaken to alienate Indian children from their cultural identity, as they were prohibited from speaking Native languages and pract icing their religions at the schools.32 Indeed, a 1928 survey conducted by the Institute for Government Research confirmed that children were being overcrowded, neglected, and abused in these facilities.33 They were subject to malnutrition, and diseases such as tuberculosis and trachoma.34 These conditions were labeled “grossly inadequate.”35 Furthermore, many children were then placed in white Christian homes, often without the consent of the child’s parents or guardian.36
B. The Indian Child Welfare Act
Congress passed the Indian Child Welfare Act (ICWA) in 1978 to address the historically discriminatory behavior exhibited toward Native American
28 General Allotment Act of 1877, ch. 119, 24 Stat. 388.
30 Lawrence C. Kelly, The Indian Reorganization Act: The Dream and the Reality , 44 PAC. HIST. REV. 291, 312 (1975).
31 U.S. Dep’t of the Interior, Bureau of Indian Affairs, Federal Indian Boarding School Initiative Investigative Report 1 (2022).
32 Id. at 40.
33 Lewis Meriam, Institute for Government Research, The Problem of Indian Administration: Report of a Survey made at the Request of Honorable Hubert Work, Secretary of the Interior, and Submitted to Him, February 21, 1928 11 (1928).
34 Id. at 12.
35 Id. at 11.
36 Id.
families by the federal government. 37 ICWA sought to remedy state, federal, and private agencies’ forced removal of Indian children from their homes. 38 Throughout the nineteenth and twentieth centuries, Native children were placed into foster homes and Christian boarding schools at an alarming rate.39 Two separate surveys conducted in 1969 and 1974 by representatives for the Association on American Indian Affairs (AAIA) found that roughly twentyfive to thirty-five percent of Indian children had been removed from their homes, with ninety percent of the adoptive families being non-Native.40 Furthermore, according to federal testimony provided in 1977 by Calvin Isaac, a Choctaw tribal chief speaking on behalf of the National Tribal Chairman’s Association, officials presiding over adoption and cus tody proceedings displayed little-to-no understanding of Native culture when evaluating Native homelife.41 As such, Chief Isaac defended ICWA and questioned the government’s ability to make serious decisions about the removal of children from their homes and tribes, stating: “Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and [are] convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child.”42 Chief Isaac contended that these agencies habitually disregard federally recognized tribes’ emphasis on and commitment to community and underestimate the benefits of children being raised in their Native culture.43 He accused many adoption agencies of further prejudice by basing their judgments not only on race, culture, or tribal identity
37 Indian Child Welfare Act of 1978, Pub. L. No. 95 –608, 92 Stat. 3069 (codified at 25 U.S.C. § 1901 et seq.).
38 H.R. Rep. No. 95–1386 (1978).
39 Id. at 9.
40 Id.
41 Indian Child Welfare Act of 1977: Hearing on S. 1214 Before the S. Select Comm. on Indian Affs., 95th Cong. at 156 (1977) (statement of Chief Calvin Isaac, Member, National Tribal Chairmen’s Association).
42 Id.
43 Id.
but also on socioeconomic status in order to evade ICWA’s constraints in certain circumstances.44
In addition to the express goal of preserving tribal agency in Indian child welfare, ICWA aims to ensure the prevention of “imminent physical damage or harm to the child”45 If an Indian child is involuntarily removed from their home or placed into foster care, ICWA requires that state officials notify both the tribe and parents or guardians, and provide translation services if necessary.46 This statute serves to promote clear and effective communication between both parties so that parents or guardians fully understand their rights and the welfare proceedings. In voluntary adoption proceedings, the same process must be executed to ensure that the tribe or guardian has offered proper and well-informed consent to proceed. Moreover, if the circumstances permit, a parent has the right to withdraw consent at any step in the proceedings.47 Since ICWA was enacted to prevent familial separations commonly experienced by Indians, it takes the potential cultural significance of a child’s placement and their connections to their tribe and heritage into account. Importantly, it acknowledges “that the States . . . have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”48 Therefore, if a child can no longer live with either biological parent, eligible extended family members and other tribal members are given priority for guardianship. If the child has no other options, “other Indian families” throughout the United States are considered, regardless of whether the child has any connections to the family’s tribe or ancestry. 49 If no other prospects are presented, non-Indian families can proceed in adopting the child in question.50 Further, ICWA gives plenary power to tribes over these proceedings, with tribal law possessing the ability to supersede state family
44 Id.
45 25 U.S.C. § 1922.
46 25 U.S.C. § 1913(a).
47 Id. § 1913(b).
48 Id. § 1901(5).
49 Id. § 1915(a).
50 Id.
and adoption laws.51 This provision aims at recognizing the special relationship between the United States and the dozens of federally recognized tribes. As established by Chief Justice John Marshall in Worcester v. Georgia (1832), Indian tribes must be considered “distinct, independent political communities.”52 Thus, ICWA both safeguards tribal sovereignty while affirming the federal government’s plenary power over Indian affairs.
A. The Final Rule
In 2016, in light of reports detailing inconsistencies in custody and adoption proceedings, the Department of the Interior issued a set of regulations (“the Final Rule”) to clarify the circumstances that trigger ICWA’s protections and to invalidate certain legal loopholes that state courts had used to promote the separation of Indian families.53 For instance, officials were able to remove an Indian child from their home if they found “good cause” to deviate from the proceedings outlined in ICWA.54 The Final Rule expands upon the idea of “good cause” and discusses special provisions for cases of emergency removal, and clarifying terms such as “qualified expert witness.”55 The Final Rule states that the use of “good cause” should be done specifically with the well-being of the child, parents, and greater tribal community in mind.56 The Final Rule outlines “when and what placement preferences apply,” and “what may constitute good cause to depart from the placement preferences, and prohibits courts from considering certain factors as the basis for departure from placement preferences.
51 Id. § 1911(a).
52 Worcester v. Georgia, 31 U.S. 515, 519 (1832).
53 25 C.F.R. § 23 (2023).
54 25 U.S.C. § 1911(a).
55 25 C.F.R. § 23.122.
56 25 C.F.R. § 23.118.
II. Precedent
Haaland presents a unique set of circumstances, as most ICWA proceedings do not generate such extensive points of conflict between the states and the tribes. Generally, tribal officials approve adoptions, with foster homes being found swiftly within Native communities. However, many precedents exist in support of ICWA’s constitutionality. In Morton v. Mancari (1974), Worcester v. Georgia (1832), and Adoptive Couple v. Baby Girl (2013), the Supreme Court has maintained that Congress has the right to supersede state governments on issues pertaining to Indian relations and Indian welfare.
A. Morton v. Mancari
Morton v. Mancari is closely examined and frequently cited in discussions of Haaland.57 Morton concerned the Equal Employment Opportunity Act of 1972, which prohibits employers within the federal government from discriminating against employees on the basis of “race, color, national origin, sex, and religion.”58 However, the Indian Reorganization Act of 1934 stipulates that American Indians must receive preferential treatment in the employment and promotion process when dealing with the Bureau of Indian Affairs (BIA). 59 C.R. Mancari, a nonIndian employee of the BIA, filed a class-action suit in the United States District Court for the District of New Mexico, claiming that this provision violated the Due Process Clause of the Fourteenth Amendment.60 Writing for a unanimous Court, Justice Harry A. Blackmun cited the special relationship between the federal government and federally recognized tribes. He further established that the provision was “an employment criterion reasonably designed to further the cause of Indian self-government.”61 Furthermore,
57 Morton v. Mancari, 417 U.S. 535 (1974).
58 Equal Employment Opportunity Act of 1972, Pub. L. No. 92 -261, 86 Stat. 103.
59 Indian Reorganization Act of 1934, ch. 576, §12, 48 Stat. 984, 986.
60 25 U.S.C. 472(a).
61 Mancari, 417 U.S. at 554.
Blackmun insists that if ICWA is considered racially discriminatory, “an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.”62Morton thus outlines the federal government’s responsibility to carry out instances of preference not as a means of discr imination against other races, but to the United States’ obligations to Indian tribes.
B. Worcester v. Georgia
Worcester v. Georgia is a landmark case that demonstrates Congress’ plenary authority relating to commerce and intercourse between the United States and federally recognized tribes.63 This case concerned Samuel A. Worcester and other non-Indian U.S. citizens who were indicted in a Georgia county court for violating a state law prohibiting Georgians from residing within Cherokee lands.64 The Georgians were tried, convicted, and sentenced under the jurisdiction of the state of Georgia. The Supreme Court reversed the state court’s holding in a 5-1 decision.65 This matter was submitted to the Court via a writ of error a legal writ issued by an appellate court requiring a lower court to provide a record of the case to be reviewed for procedural errors.66 The Court held that Georgia’s act that outlaws Georgia residents from living on tribal lands unconstitutional. Marshall’s opinion established that the power to regulate intercourse between U nited States citizens and Indian tribes resides with the federal government, not state governments. Marshall stated that “[t]he whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.”67 Worcester affirmed the United States government’s stance on power relations regarding Indian affairs. 68
62 Id. at 552.
63 Worcester, 31 U.S. 515 (1832).
64 Id
65 Worcester, 31 U.S. 515 at 536 (1832).
66 Id
67 Id. at 520.
68 It is important to note that Worcester v. Georgia, while effective in solidifying the plenary authority of Congress over managing Indian commerce and intercourse, also laid
C. Adoptive Couple v. Baby Girl
Adoptive Couple v. Baby Girl deals more specifically with ICWA. Though it serves as a crucial precedent to Haaland, this case presents unusual and complex circumstances under which the Act was ultimately held inapplicable.69 The Court used the names “Baby Girl” and “Adoptive Couple” throughout the proceedings as a means of protecting the identity of the plaintiffs and the defendant. Baby Girl’s biological mother was not living with Baby Girl’s biological father throughout her pregnancy. 70 Via text message, the biological father consented to relinquish his parental right s.71 The biological mother put Baby Girl up for adoption, listing the child’s ethnicity as “Hispanic.”72 Adoptive Couple initiated adoption proceedings in South Carolina. During the process, the biological father was identified as a member of the Cherokee Nation. The initial verification of his Indian heritage had been stalled during the proceedings due to discrepancies in the filed paperwork.73 Following this discovery, the Cherokee Nation filed a notice of intervention under ICWA. Baby Girl was found elig ible for membership in the Nation, and her biological father successfully sought custody in the South Carolina Family Court.74 The South Carolina Supreme Court affirmed on the grounds that Adoptive Couple had not complied with the procedures outlined by ICWA.75
In a 5-4 decision, however, the Supreme Court ruled in favor of Adoptive Couple. The Court held that ICWA could not be invoked considering the
the groundwork for a paternalistic and long-lasting oppressive relationship between Indian tribes and the federal government. This can be further observed in cases like Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Kagama , 118 U.S. 375 (1886); and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
69 Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013).
70 Id. at 641
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
biological father never had custody of Baby Girl and did not provide financial support to the biological mother while the child was in her custody. Given these circumstances, this case failed to meet the standard of “continued custody” as outlined in section 1912(f). In the majority opinion delivered by Justice Alito, the Court emphasized the historic and symbolic pu rpose of ICWA: to prevent the forced separation of Indian families due to biases and prejudice of both the state courts and the federal government. The Court explained that in conjunction with this goal, the purpose of ICWA is to formulate a decision that ultimately benefits the child and their best interests. In this instance, the Court determined that section 1912(d) was not violated and the child’s best interest lay in placement with Adoptive Couple.76 The dissenting opinions highlighted the potential im plications of ICWA being questioned or potentially overturned. Justice Sotomayor expressed concern that the Court’s ruling might lead to state and private agencies depriving Native children of relationships with their biological parent(s) as well as knowledge of and connection to their Native culture and heritage. 77 Justice Sotomayor further asserted that the Court’s interpretation of ICWA might cause problems for non-custodial parents, disregarding their potential right to custody regardless of their past levels of involvement in the child’s life. 78
III. HAALAND V. BRACKEEN
Haaland v. Brackeen raises questions relevant to four provisions of ICWA relating to the power allotted to federally recognized tribes. Addressing involuntary state court proceedings, Section 1912(a) states that if a child is removed from the home or placed in foster care, the party seeking the removal must promptly notify the tribe and parent or guardian about the proceedings and their rights to contestation.79 Furthermore, the parent, guardian, or tribe must be given a sufficient amount of time to respond.80
76 Baby Girl, 570 U.S. at 646.
77 Id. at 670 (Sotomayor, J., dissenting).
78 Id.
79 25 U.S.C. § 1912(a).
80 Id.
Section 1912(d) requires that state officials prove all other preferential options to be exhausted before granting a petition by a non-Indian third party for foster care placement or termination of parental rights.81 Section 1912(e)(f) dictates that before placement in foster care and before termination of parental custody, state officials must prove by an expert witness that continued custody is “likely to result in serious emotional or physical damage to the child.”82
A. Anti-Commandeering Doctrine
The plaintiffs claim that Clauses A, D, E, and F of Section 1912 violate the anti-commandeering doctrine of the Tenth Amendment, which states that Congress cannot compel state governments to enforce or adopt federal law.83 ICWA and the Final Rule, the plaintiffs contend, amount to an attempt by the federal government to control proceedings that are strictly reserved for the states.84 Though this challenge may seem valid, it disregards the unique circumstances under which adoption and child welfare proceedings involving Indian children operate. It is imperative to note the unique relationship between the United States government and federally recognized tribes. Though Indian tribes are semi-sovereign political entities, the United States government has an obligation to them because they have historically been subverted and placed in vulnerable and dependent positions. Moreover, as stated by the Indian Commerce Clause of the Constitution, Congress is allotted the power to regulate “[c]ommerce with foreign Nations, and among the several States, and with the Indian Tribes.” 85 Though the term “commerce” is ambiguous and it is uncertain what specific subjects fall under its jurisdiction, historically, the application of this term has extended to matters that may not be considered “commerce” in the colloquial sense of the
81 Id § 1912(d).
82 Id. § 1912(e)-(f).
83 New York v. United States, 505 U.S. 144 (1992).
84 Brief of Petitioner-Cross-Respondent the State of Texas at 6, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, & 21-380 (U.S. May 26, 2022).
85 U.S. Const. art. I, § 8, cl. 3.
word. Congress’s plenary power to manage commerce should be interpreted, as established by Chief Justice Marshall in Worcester v. Georgia, in a broad manner and should be used no differently now than in the past. Therefore, contrary to the plaintiff’s objections, the federal government is not reaching beyond the normal bounds of its plenary power through ICWA. As also established in Worcester v. Georgia, a sort of trust “obligation” exists between the United States and federally recognized tribes. 86 Though Marshall concluded that the tribes are somewhat dependent on the states, no state government has jurisdiction over affairs within tribal territories. Due to this trust obligation, the federal government, serving as subjugating sovereign and protector of the tribes, retains the right to intervene in issues that would be typically attributed to the state governments.
87
B. Equal Protection
The plaintiffs maintained that ICWA violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution.88 More specifically, they accuse the federal government of racial discrimination because of ICWA’s use of preferential placement in adoption proceedi ngs and its method of determining a child’s qualification under ICWA.89 The plaintiffs and the federal government disagree as to what defines a child as Indian in the context of ICWA. The law states that an “Indian child” is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”90 Most notably, the implication that one must simply be eligible for tribal membership leads ICWA’s opponents to believe that ancestry and, ultimately, race are the sole determinant in the process.91
86 Worcester, 31 U.S. at 531.
87 Id.
88 Brief of Petitioner-Cross-Respondent the State of Texas at 5, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, & 21-380 (U.S. May 26, 2022).
89 Id
90 25 U.S.C. § 1903(4).
91 Brief of Petitioner-Cross-Respondent the State of Texas at 1, Haaland v. Brackeen, Nos. 21-376, 21-377, 21-378, & 21-380 (U.S. May 26, 2022).
However, others maintain that “Indian” in this context is more akin to a political descriptor; with Indian tribes being recognized as sovereign nations, membership is likened to citizenship in a foreign nation. This classification does not require an act of racial designation for a child to be considered Indian. Furthermore, this political identification originates from a place of protection, reparation, and preservation due to its historical context. As it is the United States’ responsibility as subjugating sovereign to establish such classifications, they serve to nurture the very fragile and intricate relationship between the government and these federally recognized nations. As Congress has previously claimed, “there is no resource that is so vital to the continued existence and integrity of Indian tribes than their children.” 92 Both the legal precedent and the immense cultural significance surrounding this law prove it to be essential in the maintenance of the protection of equal rights for Native people and the continuation of a healthy relationship between the United States and federally recognized tribes.
IV. CONCLUSION: IMPLICATIONS FOR INDIAN CHILD WELFARE AND TRIBAL SOVEREIGNTY
The outcome of this case will have tremendous implications for the future of Indian child welfare and tribal sovereignty in the United States. If the Court overturns ICWA, efforts to undermine Congress’s enumerated plenary power, exemplified by the Indian Commerce Clause, may be encouraged in a variety of legal areas that extend beyond Indian child welfare. Though Marshall once stated that the plenary powers allotted to Congress were intended to be vague and broad, a new sort of precedent establishes a limit on when the federal government would be able to supersede the jurisdiction of the state governments. 93 If the Court holds that ICWA violates the nondelegation doctrine, or that it is empowering Indian tribes to make decisions that should be under the jurisdiction of the states, the federal government’s control of all commerce and intercourse with Indian tribes may
92 25 U.S.C. § 1901.
93 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) at 196.
come into question. The states, especially those who joined the case a s plaintiffs, may be prompted to push for greater control in Indian relations, including in sectors such as environmental policy, religion, or even healthcare. If this were the case, the states could potentially disregard the long-standing federally recognized tribes as “distinct, independent political communities” and begin to encroach upon the tribes’ powers allotted to them by the federal government in these matters.94
Furthermore, should ICWA be overturned, the special relationship that exists between the government and federally recognized tribes may be permanently changed. The United States has long served as a sort of quasiprotector of Native tribes as a means of acknowledging the nation’s role in perpetuating oppression and violence against Native Americans.95 If the use of preferential placement a system that was implemented to preserve Indian cultures and heritages is deemed a violation of the Fourteenth Amendment’s Equal Protection Clause, Native Americans may become subject to further persecution and prejudice at the hands of the federal government, who historically served as an oppressor. 96 Since the establishment of the Indian Commerce Clause, with origins in Article IX of the Articles of Confederation97 and later Article I of the Constitution,98 the federal government has had a well-defined relationship with Native tribes, and Congress has maintained and utilized its plenary power. Should this relationship change with the decision in Haaland v. Brackeen, permanent shift may occur in the power allotted to the tribes and the relationship between the tribes and the United States.
If the Court rules in favor of the federal government, the decision will reinforce the protection of Native rights beyond the field of child welfare.
94 Worcester, 31 U.S. at 519.
95 25 U.S.C. § 1902.
96 Id. § 1901(5).
97 The Articles of Confederation vest in Congress the power of managing all affairs with Indian tribes, not just limited to commerce. The document states,“The United States, in congress assembled, shall also have the sole and ex clusive right and power of regulating the . . . trade and managing all affairs with the Indians, not members of any of the states.” Articles of Confederation art. IX.
98 U.S. Const. art. I, § 8, cl. 3 .
The preservation of ICWA will reaffirm “Indian” as a political identity. Alternative attempts to redefine what constitutes Indian identity, such as whether one lives on a reservation or not, would present their own problems. In this instance, several tribes are considered “landless,” which would create many legal gray areas and exclude certain people from qualifying for such protections. As demonstrated by ICWA’s use of the good cause standard, this kind of ambiguity would enable the prejudices of state or private officials to infiltrate adoption proceedings.
In terms more specific to child welfare, Native families, both on and off of reservations, would continue to be given preference in foster care or adoption cases, even if other non-Native families are willing and able to adopt. In the case of the Brackeens, a non-Native family seeking to move forward with adoption proceedings to provide a safe home for two Indian children, the courts determined that their actions were in the children’s best interest. However, this decision may deprive the children and others like them of essential knowledge of their heritage and identity. This decision may also impede their families’ and tribe’s efforts to continue to spread their culture and tradition. Many Native Americans are advocating to p rotect ICWA, emphasizing its cultural and symbolic value.99 Though a child’s placement in an Indian home of another tribe may seem unrelated to the preservation of the child’s heritage, tribes nationwide share similar religious and cultural values, with an emphasis on maintaining one’s sense of community.100 Beyond the cultural and community-oriented benefits to upholding ICWA, if ICWA is overturned, states may be able to further question and ultimately infringe upon previously untouchable laws, including treaties and those that recognize tribal nations as sovereign states. Congress repeatedly refers to ICWA as a guarantee and reinforcement of tribal sovereignty and selfgovernance.101 Though the plaintiffs maintain that this law is a breach of states’ rights, more than twenty states have filed amicus briefs in support of
99 Protecting the Law That Protects Our Children , 44 Native American Rights Fund Legal Review 1, 5 (2019).
100 Transcript of Oral Argument, supra note 1, at 136.
101 Brief for 87 Members of Congress as Amici Curiae in Support of Federal and Tribal Defendants, Haaland v. Brackeen , Nos. 21-376, 21-377, 21-378 (U.S. Aug. 19, 2022).
upholding ICWA.102 Many believe it has served as the “gold standard” of both child welfare law and legal relations between the United States and federally recognized tribes.103 If it cannot be protected, ICWA may signify a regression in the government’s protection of historically marginalized peoples. If it is upheld, ICWA may serve as a stride toward equality in the American legal system. * * *
This Note was edited by Anthony Vu
102 Transcript of Oral Argument, supra note 1, at 105.
103 Chuck Hoskin Jr., Letter to the Editor, WASHINGTON POST (Jan. 11, 2022), https://www.washingtonpost.com/opinions/letters-to-the-editor/the-indian-child-welfareact-is-the-gold-standard/2022/01/11/0fd8b330 -7233-11ec-a26d-1c21c16b1c93_story.html.
