Johns Hopkins Undergraduate Law Review | Volume 1

THE JOHNS HOPKINS UNDERGRADUATE

LAW REVIEW Volume 1 SPRING 2019

Published June 2019 by The Johns Hopkins Undergraduate Law Review 3400 N Charles St Baltimore, MD 21218 jhulr.org jhulawreview@gmail.com

jhulr.org

/jhulawreview

@jhulawreview

Contents 6

Letter from the Editor-in-Chief

7

Journal Editors

Kiana Boroumand

Articles {11 - 85} 11 4

When Nowhere is Safe

The Deportation of Southeast Asian Refugees and International Human Rights Law Luke Kertcher

25

The Silent Revolution

Why the Austrian Constitutional Court Legalized Gay Marriage Johannes Lang

43

From Roe v. Wade to Kavanaugh’s Confirmation

57

A Test of the Strategic Model

73

The Case for Expanding Protection Removals

86

Full JHULR Staff

How Legal Reasoning and Public Opinion about Abortion Developed from 1973 to Today Sarah Lentz

Chief Justice Roberts’ Opinion in National Federation of Independent Business v. Sebelius Lauren Andrews

Documentation Status and the Psychological Development of Children in Immigrant Families Lidya Tadesse

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Dear Readers,

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In December of 2017, I founded the Johns Hopkins Undergraduate Law Review (JHULR) with the hope that it would become an important platform for students interested in law. In the following months, we assembled an editorial staff and dreamt of what this publication could be. Now, a year and a half later, I am proud to present the inaugural volume of the JHULR. The five pieces we have selected this year come from young scholars at Harvard College, the Johns Hopkins University, the University of Pennsylvania, and the University of Southern California. True to our mission, these five pieces speak to some of the most important legal issues facing us today—from the deportation of refugees to abortion rights—and I am so excited to share them with you. First, we begin with a piece by Luke Kertcher, who argues that the United States’ mass detention and deportation of Southeast Asian refugees is a violation of international human rights law. From one human rights issue, we then shift to another: In “The Silent Revolution: Why the Austrian Constitutional Court Legalized Gay Marriage,” Johannes Lang explores the expansion of LGBT rights in the context of the Austrian Constitutional Court and the European Court of Human Rights. In our third piece, Sarah Wentz analyzes the history of abortion rights in the United States, from the landmark 1973 Roe v. Wade decision to now. Like Wentz, our next author, Lauren Andrews, pays particular attention to the United States Supreme Court in her piece on the Affordable Care Act and the 2012 Supreme Court case, National Federation of Independent Business v. Sebelius. To end the volume, we return to the issue of deportation in our fifth and final piece. Drawing on law, psychology, and public policy, Lidya Tadesse argues for the expansion of removal protections for undocumented parents of citizen-children in the United States. During this past fall semester, we launched the JHULR with our online platform, and I wrote my first “Letter from the Editor.” I wrote about how hopeful our staff was for the future—despite how uncertain it looked. This volume exists because of the hard work of our dedicated staff. I am so grateful to them, and to everyone who has supported and believed in this publication. I would especially like to thank our advisors—Associate Director of Johns Hopkins Pre-Professional Advising, Ana Droscoski, and Bloomberg Distinguished Professor of Sociology and Education, Stephen Morgan—for their generous guidance and encouragement throughout this process. And finally, my deepest thanks to our contributors. It has been a joy to work with them and learn from their scholarship. I hope you enjoy reading their pieces as much as we did. Best,

Kiana Boroumand Editor-in-Chief

Kiana Boroumand Managing Editor Jackson Zebovitz

Editors

Hayley Bronner

Riya Rana

Ian Elliott

Samuel Richter

Gabriela Hubner

Destiny Staten

Riya Jain

Hannah Stone

Yeji Kim

Sabrina Sussman

Alexandra Krickovich

Laura Wadsten

Layout Lidya Tadesse

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Editor-in-Chief

7

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Articles

11 - 85

The Deportation of Southeast Asian Refugees and International Human Rights Law Luke Kertcher Abstract Following the series of conflicts in mid- to late-twentieth century Southeast Asia, hundreds of thousands of refugees from Cambodia, Laos, and Vietnam resettled in the United States and began to rebuild their lives. Many Southeast Asian refugee community members fell into the school-to-prison-to-deportation pipeline, committing crimes that made non-citizens eligible for criminal deportation. Amidst a landscape of both American obligations to international law and increasingly harsh domestic immigration policy, the deportation of Southeast Asian refugees from the United States constitutes an international human rights violation that requires immediate remedy.

T H E J O H N S H O P K I N S U N D E R G R A D U AT E L AW R E V I E W | S P R I N G 2 0 1 9 | V O L U M E 1

When Nowhere is Safe

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JHULR | When Nowhere is Safe On the precipice of Vietnamese reunification, the fall of the Kingdom of Laos, and the rise of the Khmer Rouge and their harrowing genocide, millions of people began to flee from mainland Southeast Asia, seeking safety and a better life.1 With hostile communist takeovers in Cambodia, Laos, and Vietnam, refugees feared genocide, famine, poverty, persecution, and the hazards that accompanied war and political shifts. More than three million chose to flee their homelands, seeking safe haven, better opportunity, and freedom. After long migratory journeys and stays in refugee settlements, many of these asylum-seekers were fortunate to find refuge in the United States but, even there, did not always find safety. Facing the triple trauma of war and violence in their home countries, migratory journeys, and resettlement pains, many Southeast Asian refugee communities in the United States relocated into underresourced neighborhoods2 and turned to gangs for protection.3 They often became dependent on American welfare systems, their educational and professional attainment hindered by refugee trauma, language barriers, and systemic racism. Even now, many Southeast Asian refugees fall victim to the ills of the school-to-prison-todeportation pipeline, a variation of the more commonly known school-to-prison pipeline that uniquely impacts immigrant and refugee communities that are more susceptible to criminal deportation. Many of these refugees from Cambodia, Laos, and Vietnam, having never pursued or obtained American citizenship, become eligible for deportation based on past criminal convictions even after serving their court-mandated sentences. Immigration and Customs Enforcement and the Department of Homeland Security routinely detain and deport these refugees from Southeast Asia, violating their human rights to due process, freedom from cruel punishment, and non-refoulement, or expulsion of a refugee back to their home country.

Based on the International Covenant on Civil and Political Rights (ICCPR) and the Convention Relating to the Status of Refugees, the United States has a clear responsibility to halt and remedy the egregious violation of the human rights of refugees from Southeast Asia. In an increasingly globalized world with a complex system of international interdependence and human rights infrastructure, the theoretical underpinnings of citizenship must be examined. Too often is the concept of citizenship used to oppress individuals and justify the widespread abuse of human rights in the name of sovereignty. Citizenship, in its legal, national sense, presumes human rights as “property” endowed by one’s government and grounded in constitutionalism.4 Thus, for Southeast Asian refugees and deportees who lack the rights of American citizenship, human rights are not respected nor given by the American government. This goes against the most fundamental tenet of human rights doctrine: universality, wherein all humans are equal and deserving of the same rights, regardless of social identities or citizenship status.5 In a principled defense of Southeast Asian refugees’ human rights, rights must be grounded in their status as human beings, regardless of the trappings of legal non-citizenship and domestic American law. In order for human rights to be truly universal as intended in the foundational Universal Declaration of Human Rights, the exclusionary legal definitions of citizenship and its conferral of basic freedoms and rights ought to be cast aside in favor of global citizenship.6 12

JHULR | When Nowhere is Safe In the United States, these human rights are limited, or even revoked entirely, for individuals with criminal convictions.7

The American criminal justice system prioritizes the retributive punishment of offenders, subjecting them to felony disenfranchisement, social outcasting, and significant barriers to societal reintegration upon release from incarceration.8 For non-citizens, this punishment extends beyond American life as many receive orders of deportation and are removed from the country. Under a universalistic doctrine of human rights, inmates still possess their fundamental rights and deserve to have them both protected and fulfilled, which would necessitate a shift towards rehabilitative incarceration and away from retribution as outlined in the ICCPR.9 However, within the American prison system, incarcerated people enjoy no such treatment. Even upon release from prison, criminal offenders bear their sentences as an irrevocable mark of shame and forfeiture of basic human rights. Many Southeast Asian refugees, facing deportation based on past criminal offenses, serve as a clear example of retributive justice when they are further punished for past crimes even after serving a full court-mandated sentence. In the American public’s imagination, deportation is seen as a righteous consequence for migrants who violate the laws of the United States, but it often constitutes a violation of due process 10 rights and an individual’s right to be free from cruel punishment. Since the founding of the United States, deportation has been instrumentalized as a way to protect the nation, impose political and social control on the population, and strip immigrants of their rights.11 The process of deportation for Southeast Asian refugees from Cambodia and Vietnam is highly complex, spanning more than 50 years of changes to interlocking immigration and penal policy. As the largest refugee population ever resettled in the United States, these Southeast Asian migrants entered the country through a number of legal channels. Congress initially responded to the pressing crisis of refugees fleeing war-torn Southeast Asia with the Indochina Migration and Refugee Assistance Act of 1975, which authorized total federal 12 reimbursement for resettlement services provided by states to refugees. Through this act, refugees were defined as those who fear or are currently experiencing persecution based on race, religion, or political opinion from Cambodia and Vietnam, who cannot return due to that persecution, and who require assistance for the “essentials of life.”13 As the refugee crisis continued to grow, the 1975 refugee policy and its establishment of the Indochinese Refugee Assistance Program served only as a temporary solution until the passage of comprehensive refugee policy and procedures under the Refugee Act of 1980.14 The first act of its kind, the Refugee Act maintained and expanded the legal definition of refugees as individuals “unable or unwilling to avail [themselves] of the protection of, [their home country] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”15 Additionally, the act allowed for the resettlement of 50,000 refugees per fiscal year—mostly from Cambodia, Laos, and Vietnam at the time—through the newly created Office of Refugee Resettlement within the Department of Health and Human Services, providing a foundational legal framework and administrative infrastructure for future American refugee policy.16 13

JHULR | When Nowhere is Safe Eight years later, Congress passed the Amerasian Homecoming Act that allowed for well over 23,000 mixed race Vietnamese refugees, but not mixed Cambodian or Laotian refugees, to enter the United States based on their father’s American nationality.17 The United States terminated its formal refugee resettlement program with Cambodia in 1994 and with Vietnam and Laos in 1997, making all migrants from those countries after these dates ineligible for legal refugee status.18 Once resettled in the United States, these Southeast Asian refugees were required to apply for legal permanent resident status after one year. However, not all continued to apply for or gain citizenship due to language barriers, time, cost, legal support, 19 and personal choice. In total, more than 1.2 million refugees from Southeast Asia were resettled in the United States,20 where they continue to face high rates of poverty and educational and socioeconomic attainment well below the national averages.21 As a result of these such factors, many Southeast Asian refugee youth fall into crime and are incarcerated for their offenses, which has serious consequences upon release from prison for those who are not American citizens. According to federal guidelines in the Immigration and Nationality Act of 1965 and expanded regulations in the Clinton-era Illegal Immigration Reform and Immigrant Responsibility Act of 1996, non-citizens become eligible for deportation in one of six ways: (1) violation of terms of entry, (2) commission of criminal offenses, (3) undocumented or falsified status, (4) constituting a national security threat, (5) 22 becoming a public charge, and (6) voting unlawfully. In addition, guidelines under the Anti-terrorism and Effective Death Penalty Act of 1996 require the mandatory detention of non-citizens convicted of offenses to determine their immigration proceedings, as well as allowing the detention of deportees from countries that refuse to accept them (i.e. without a repatriation agreement) for up to six months.23 Cambodian, Laotian, and Vietnamese refugee populations are most often subject to deportation on the basis of past criminal offenses ranging anywhere from murder to drug offenses to forgery (for a full list of deportable offenses, see 8 US Code § 1227).24 In fact, expanded deportation guidelines from the Illegal Immigration Reform and Immigrant Responsibility Act made immigrants and refugees who had committed nonviolent and non-felony crimes eligible for deportation without judicial discretion.25 Recent statistics from 2015 place the number of individual Cambodian, Laotian, and Vietnamese Americans facing final orders of deportation at more than 16,000.26 For Vietnamese Americans alone, approximately 8,600 individuals are facing final orders of deportation, of which 7,821 hold past criminal convictions.27 Statistics are similar for Cambodian Americans, with 1,441 criminal offenders out of a total of more than 1,900 individuals facing final orders of deportation.28 Vietnamese and Cambodian individuals residing in the United States, became eligible for deportation, despite their refugee status, after the signing of repatriation agreements with their native countries.

The United States, using its economic power and coercive influence in the international sphere, signed a repatriation agreement with Cambodia in 2002 that opened up a pathway for the deportation of Cambodian Americans.29 14

JHULR | When Nowhere is Safe By weaponizing the issuance, or restriction, of visas to Cambodian nationals, the United States was able to force Cambodia to repatriate deportees.30 Countries who fail to comply with the United States’ desire to deport criminal offenders are deemed “recalcitrant,” or uncooperative, and often become subject to increasingly harsh visa restrictions and economic sanctioning.31 Since Cambodia acceded to the signing of the agreement, more than 500 Cambodians have been deported.32 Cambodia challenged the repatriation agreement as recently as 2017 based on humanitarian concerns;33 however, increased visa sanctioning from the United States resulted in an agreement that allowed for the deportation of even more Cambodian individuals.34 In 2008, the United States signed a more unique repatriation agreement with Vietnam with the added stipulation that those Vietnamese individuals who arrived before July 12, 1995, the date of formal diplomatic rapprochement between the two nations, would 35 not be eligible for deportation. Vietnamese individuals who are still eligible for deportation based on past criminal offenses, but who arrived in the United States before 1995 are often subject to “detention limbo,” wherein they are able to be held at any time by Immigration and Customs Enforcement for up to six months upon release from prison.36 Laos has been considerably less cooperative in accepting deportees from the United States, being deemed recalcitrant by the Trump administration and subject to increasingly harsh visa restrictions 37 through recent sanctions. The Trump administration has continuously expressed its hardline stance on immigration, most recently attempting to renegotiate the 2008 repatriation agreement between the United States and Vietnam.38

While the United States may attempt to unilaterally change the memorandum of understanding between the two nations, Vietnam’s cooperation would still be required to proceed with deportation processes. The Department of Homeland Security, seeking to lift the deportation restriction against those migrants who arrived before July 12, 1995, met with Vietnamese representatives in Washington, DC in December 2018, but the nature of the agreements have not been disclosed to the public.39 Despite the uncertainty, the Southeast Asian refugee community, catalyzed by both the renegotiation of the repatriation agreement with Vietnam and the recent deportation of 36 Cambodians in December 2018, has been fiercely rallying against any potential moves to deport community members.40 The deportation of Southeast Asian community members has captured national attention, with opposition being expressed from national civil rights organizations and local, state, and federal legislators.41 Fearing that the pre-1995 Vietnamese deportation restrictions would be lifted and more than 8,000 community members would become eligible for criminal deportations, hundreds rallied in Orange County, the epicenter of Vietnamese America, to protest the increasingly harsh immigration policy of the Trump administration.42

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JHULR | When Nowhere is Safe The severity and inhumanity of these deportation policies is visible in the case of renowned Vietnamese American community activist Mr. Tung Nguyen. Nguyen arrived in California from Vietnam prior to 1995 as a teenager, but was met with bullying, financial insecurity, and 43 social outcasting. In 1993, at the age of sixteen, Nguyen was tried as an adult and sentenced to 25 years to life in prison for first-degree murder and robbery after serving as a lookout during a murder.44 Based on exceptional behavior and frequent participation in rehabilitative programs while incarcerated, Nguyen’s sentence was commuted to immediate release on parole by Governor Jerry Brown of California after serving eighteen years in 45 prison—but the horror of the American carceral system did not end there. Upon his release in 2011, Nguyen was immediately detained by Immigration and Customs Enforcement based on his eligibility for criminal deportation. However, his status as a pre-1995 Vietnamese refugee precluded him from actual deportation.46 Nguyen thus remained in detention limbo, unable to be deported, but able to be detained at any time by immigration enforcement officers. After serving his sentence, Nguyen founded Asians and Pacific Islanders Re-Entry of Orange County in 2013 to support incarcerated populations and has won several awards for his advocacy in criminal justice reform. On November 21, 2018, in part due to his heroic track record of community activism and a support campaign led by fellow organizers, Nguyen was 47 fortunate to receive a rare pardon from Governor Brown, allowing him to avoid federal deportation proceedings by forgiving his offenses under state criminal law.48

While Nguyen’s pardon may be unique, his experience with detention is a common narrative for Southeast Asian refugee communities facing high rates of criminal deportations. Past criminal offenders serve their court-mandated sentences but receive the double punishment of deportation simply due to their status as non-citizens. Thus, the deportation of Southeast Asian refugee populations constitutes a range of egregious human rights violations, including the right to due process and freedom from cruel punishment and refoulement. Based on the United States’ ratification of the ICCPR in 1993, the American government has a legally-binding obligation to protect the rights and freedoms enshrined therein. The criminal detention and deportation of Southeast Asian refugees violates an individual’s right to be free from cruel punishment based on Articles 7 and 10 of the ICCPR. Article 7 states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”49 Additionally, Article 10.3 states that “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”50 Since many refugees facing deportation are detained and deported following their completion of a prison sentence, their deportation is a second, extremely harsh punishment.51 This violates the American Constitution’s own prohibition of “cruel and unusual punishments” in the Eighth Amendment52 and protections against disproportionate sentencing first defended in O’Neil v. Vermont.53

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JHULR | When Nowhere is Safe In the landmark case, limits were established for what punishments were reasonable and proportional to a given criminal offense. Given that criminal deportees have already served a court-mandated sentence and are deported on the basis of committing a criminal offense, deportation can be considered a punishment. Thus, deportation serves as a secondary, collateral punishment of disproportionate scale, constituting double punishment in most cases.

When deporting a refugee, the deportee is ripped from their families, their communities, and their new homeland. They have often rebuilt and established their lives, integrating themselves into American society through community engagement, business, and forming loving families. In many cases, these refugees, like Nguyen, left their home countries at very young ages or have never even been there, being born in refugee settlements and having no legitimate connection to Cambodia, Laos, or Vietnam.54 On the basis of their having already served sentences for past crimes and their complete involuntary exile from their communities, the deportation of Southeast Asian refugees violates the basic freedom from cruel, inhuman, and degrading punishment. Furthermore, if these refugees have already completed sentences for their crimes—or have even had their sentences commuted or pardoned—and are still being subject to deportation, their imprisonment had no such goals of rehabilitation and reformation. Instead, criminal deportees are forced to bear the consequences of their crimes indefinitely, with little to no opportunity for expungement or forgiveness. In addition to the ICCPR, the United States is party to the 1951 Convention Relating to the Status of Refugees and the supplementary 1967 Protocol that defines refugee status and establishes the rule of non-refoulement, or not expelling a refugee to a location where they are at risk or threat of persecution. Refugees from Southeast Asia fled the turmoil of war, certain death from genocide, forced labor and torture in re-education camps, and other untold horrors. Returning individuals to the very countries with oppressive regimes from which they fled is an appalling violation of the non-refoulement clause in Article 33.1 of the Convention.55 Relatedly, these deportations are solely under the executive jurisdiction of Immigration and Customs Enforcement and the wider Department of Homeland Security, so 56 individuals facing deportation orders often do not see a judgement of their case. Judges, free from executive branch bureaucracy, are able to take humanistic and social considerations into account when deciding upon criminal proceedings. The lack of judicial discretion in deportation cases thus constitutes a clear violation of due process rights in accordance with Article 32.2 of the Convention.57 Moreover, in Article 32.3, the Convention asserts that refugees can only be expelled through a court with due process. However, American immigration courts, with their unreasonably long case backlogs, case quota policies, and only nominal independence from the Department of Justice, render due process rights ineffectual for plaintiffs.58 Additionally, the Article proclaims a refugee’s right to be represented before the government, which American immigration courts routinely violate since they are at no obligation under domestic code to provide counsel.59 As a result, many individuals facing deportation proceedings must rely on personal finances or support from 60 nonprofit organizations for representation, if they are represented at all. 17

JHULR | When Nowhere is Safe

While current American immigration and deportation policy towards Southeast Asian refugee populations consistently violates key human rights policies under international law, there is still opportunity for remedy and improvement. Advocacy for Southeast Asian deportees is led largely by grassroots community activists, like the 1Love Movement, the Vietnamese Anti-Deportation Network, and the Southeast Asian Freedom Network, who call for solutions to oppressive immigration policy to keep families unified and communities intact. Most recently, a nationwide coalition of community organizations and civil rights groups launched the National Week of Action to End Southeast Asian Deportations from January 19 to January 27, 2019 under the rallying cry of #RefugeeResilience.61 Many legal experts have also called for the end of mandatory detention and deportation in favor of restoring judicial discretion, narrowing deportable offenses for criminal deportees, and ending detention overall.62 Current cases that present an opportunity for reasonable remedy include the class action Trinh v. Vitiello lawsuit that is challenging deportation limbo for pre-1995 Vietnamese refugees63 and the possibility of deportation reversal based on prejudicial errors after the return of deportees Mr. Phorn Tem64 and Mr. Veasna Meth to the United States from Cambodia.65 University of Pennsylvania professor of refugee and immigration law Mr. Fernando Chang-Muy recommended a three-pronged approach to remedy these violations based on each of the primary branches of American government: judicial, legislative, and executive.66 Chang-Muy concurs with ending the executive branch’s monopolized jurisdiction over immigration proceedings in favor of judicial discretion that can take human factors into consideration.67 On the legislative side, policies can be reformed to decrease the range of deportable offenses, especially from non-violent, relatively minor crimes like petty theft.68 Finally, the United States must act to alleviate mass criminal deportation of refugee populations in order to preserve and uphold the international human rights system. American aggression in Cambodia, Laos, and Vietnam led to the resettlement of more than one million Southeast Asian refugees within the borders of the United States. Despite legal refugee status, many Southeast Asian refugee communities have been plagued by mass detentions and deportations on the basis of criminal offenses. Ultimately, such detention and deportation of these refugees is inhumane, representing cruel double punishment, a violation of key civil rights, and an offense to the internationally-accepted principle of non-refoulement. The United States, while seen as a beacon of light in the international human rights system, violates numerous international human rights laws in the ICCPR and Refugee Convention and fails to uphold their legal obligations to respect and protect rights. The cruelty of refugee detention and deportation must be put to an end through widespread immigration reform and a radical restructuring of the American penal system.

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JHULR | When Nowhere is Safe

Luke Kertcher is a senior at the University of Pennsylvania, where he studies International Relations

with a minor in Asian American studies, while pursuing a graduate certification in Global Human Rights. Luke’s primary research interests are Vietnamese and Southeast Asian Studies, Vietnamese diaspora, Asian American communities, and second generation human rights. His work has previously been published by Unfound: The Princeton Journal of Asian American Studies, Penn Asian Review, Hemispheres: Tufts University Journal of International Affairs, the Progressive Vietnamese American Network (PIVOT), and the East Coast Asian American Student Union editorial. Aside from his studies, Luke is the co-chair of the Asian American Studies Undergraduate Advisory Board at Penn, the external vice president of the Penn Vietnamese Students’ Association, and a Civic Engagement Committee member for the Union of North American Vietnamese Student Associations. Upon graduation, Luke will be teaching middle school students in Houston as a Teach For America corps member.

Notes 1 Amy Zaharlick and Jean Brainard, “Demographic Characteristics, Ethnicity And The Resettlement Of Southeast Asian Refugees In The United States,” Urban Anthropology and Studies of Cultural Systems and World Economic Development 16, no. 3/4 (1987): 330. 2 Lynn Fujiwara, “Refugees Betrayed,” in Mothers without Citizenship: Asian Immigrant Families and the Consequences of Welfare Reform (London: University of Minnesota Press, 2008), 61. 3 Linda Trinh Vo and Rick Bonus, “Southeast Asians in the House: Multiple Layers of Identity,” in Contemporary Asian American Communities: Intersections And Divergences (Temple University Press, 2002), 68. 4 Chris Farrands, “Touching Friendship Beyond Friendship: Friendship and Citizenship in Global Politics,” Alternatives: Global, Local, Political 26, no. 2 (2001): 144. 5 Marek Piechowiak, “What Are Human Rights?: The Concept of Human Rights and Their Extra-Legal Justification,” in An Introduction to the International Protection of Human Rights: A Textbook, 2nd ed. (Institute for Human Rights, 1999), 3. 6 Farrands, “Touching Friendship,” 155-56. 7 Edgardo Rotman, “Do Criminal Offenders Have a Constitutional Right to Rehabilitation?” The Journal of Criminal Law and Criminology 77, no. 4 (1986): 1027. 8 Ibid., 1025. 9 Ibid., 1026. 10 “Deportation and Human Rights,” Immigrant Defense Project, accessed November 11, 2018. 11 Adam Goodman, “Deportation: The Origins of U.S. Policy.” The Journal of American History. 105, no. 1 (June 1, 2018): 180. 12 Norman L. Zucker, “Refugee Resettlement in the United States: Policy and Problems,” The Annals of the American Academy of Political and Social Science 467 (May 1983): 174-75. 13 Indochina Migration and Refugee Assistance Act, 22 U.S.C. § 2601 (1975). 14 Zucker, “Refugee Resettlement in the United States,” 177. 15 Refugee Act, 94 U.S.C. § 212 (1980). 16 Zucker, “Refugee Resettlement in the United States,” 178. 17 Kay Johnson. “Children of the Dust.” Time International (South Pacific Edition), no. 19 (May 20, 2002): 37. 18 Sucheng Chan, “Ending the Indochinese Refugee Exodus,” in The Vietnamese American 1.5 Generation: Stories of War, Revolution, Flight and New Beginnings (Temple University Press, 2006), 87. 19 Elijah Alperin and Jeanne Batalova, “Vietnamese Immigrants in the United States,” September 13, 2018, accessed November 11, 2018. 20 Justine Calma, “Forty Years After Resettlement, Thousands of Southeast Asian Refugees Face Deportation,” NBC News, November 23, 2015, accessed November 11, 2018. 21 Increase Access to Higher Education:Why Are Southeast Asians Not Going To College?, report, Southeast Asia Resource Action Center (SEARAC) (2013), 1-2. 22 Immigration and Nationality Act, 8 U.S.C. § 237 (1965). 23 “Analysis of Immigration Detention Policies,” American Civil Liberties Union, accessed January 20, 2019. 24 Immigration and Nationality Act, 8 U.S.C. § 1101 (1965). 25 Calma, “Forty Years After Resettlement.” 26 The Devastating Impact of Deportation on Southeast Asian Americans, report, Southeast Asia Resource Action Center (SEARAC) (2015), 1. 27 James Pearson. “U.S. seeks to deport thousands of Vietnamese protected by treaty: former ambassador,” Reuters, April 12, 2018, Accessed November 11, 2018.

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JHULR | When Nowhere is Safe 28 Agnes Constante,“As Cambodian deportations resume, community looks for ways to cope.” NBC News, April 20, 2018, Accessed November 11, 2018. 29 Calma, “Forty Years After Resettlement.” 30 Bunthay Cheam, “Flashpoint in U.S.-Cambodia Repatriation Agreement has origins in work by grassroots group,” International Examiner, November 5, 2017, Accessed February 27, 2019. 31 NumbersUSA, “Recalcitrant Countries Accepting More Criminal Repatriates,” NumbersUSA, December 19, 2018, Accessed February 27, 2019. 32 Calma, “Forty Years After Resettlement.” 33 Cheam, “Flashpoint in U.S.-Cambodia Repatriation Agreement.” 34 NumbersUSA, “Recalcitrant Countries Accepting More Criminal Repatriates.” 35 Calma, “Forty Years After Resettlement.” 36 Samantha Schmidt, “Vietnamese immigrants are stuck in limbo, detained indefinitely, lawsuit says,” The Washington Post, March 1, 2018, Accessed November 11, 2018. 37 “DHS Announces Implementation of Visa Sanctions,” July 10, 2018. Accessed November 12, 2018. 38 Charles Dunst and Krishnadev Calamur, “Trump Moves to Deport Vietnam War Refugees.” The Atlantic, December 12, 2018, Accessed December 22, 2018. 39 Agnes Constante, “Uncertainty over US-Vietnam agreement leads to deportation concerns,” NBC News, January 17, 2019, Accessed January 20, 2019. 40 Morning Edition, “U.S. Deports The Latest Group of Cambodian Immigrants,” NPR, December 19, 2018, Accessed January 20, 2019. 41 Elaine Sanchez Wilson, “Administration Escalates Attacks on Southeast Asian Families Before the Holidays,” SEARAC, December 18, 2018, Accessed January 20, 2019. 42 Anh Do, “Vietnamese Americans rally in Little Saigon against Trump administration’s push to deport thousands of war refugees,” The Los Angeles Times. December 15, 2018, Accessed January 20, 2019. 43 Agnes Constante,“‘Never Too Late to Change’: In Deportation Limbo, Tung Nguyen Wants to Help Fellow Felons,” NBC News, January 23, 2017, Accessed November 11, 2018. 44 Ibid. 45 Ibid. 46 Ibid. 47 Sandra De Anda, “Will Governor’s Pardon of OC Refugee Tung Nguyen Help Him Stay in U.S.?” OC Weekly, December 4, 2018, Accessed January 20, 2019. 48 John Myers and Jazmine Ulloa, “Immigrants facing deportation, drug offenders and a former state lawmaker receive pardons from Gov. Jerry Brown,” The Los Angeles Times, November 21, 2018, Accessed January 20, 2019. 49 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, 175. 50 Ibid., 176. 51 Calma, “Forty Years After Resettlement.” 52 U.S. Const. amend. VIII. 53 O’Neil v. Vermont, 144 U.S. 323 (1892). 54 Ibid. 55 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, 176. 56 Calma, “Forty Years After Resettlement.” 57 UN General Assembly, Convention Relating to the Status of Refugees, 174. 58 National Immigrant Justice Center. “Immigration Court Independence.” National Immigrant Justice Center. Accessed February 27, 2019. 59 Ingrid Eagly and Steven Shafer, “Access to Counsel in Immigration Court.” American Immigration Council, September 28, 2016, Accessed February 27, 2019. 60 Ibid. 61 Elaine Sanchez Wilson, “Organizations Across the Country to Launch National Week of Action to End Southeast Asian Deportations,” SEARAC, January 17, 2019, Accessed January 20, 2019. 62 Immigrant Defense Project, “Deportation and Human Rights.” 63 Asian Americans Advancing Justice | Asian Law Caucus, “Trinh v. Vitiello Community Advisory,” October 22, 2018, Accessed November 11, 2018. 64 Randall, “Deportation Reversed. Cambodian Refugee Back in the United States.,” AsAm News, November 5, 2018, Accessed November 11, 2018. 65 Agnes Constante, “Second Cambodian deportee to return to U.S., giving hope to others seeking return,” NBC News, February 27, 2019, Accessed February 27, 2019. 66 “Meeting with Professor Chang-Muy,” interview by author, November 7, 2018. 67 Ibid. 68 Ibid.

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JHULR | When Nowhere is Safe

Bibliography Alperin, Elijah, and Jeanne Batalova. “Vietnamese Immigrants in the United States.” September 13, 2018. Accessed November 11, 2018. “Analysis of Immigration Detention Policies.” American Civil Liberties Union. Accessed January 20, 2019. https://www.aclu.org/other/analysis-immigration-detention-policies. Asian Americans Advancing Justice | Asian Law Caucus. “Trinh v. Vitiello Community Advisory.” October 22, 2018. Accessed November 11, 2018. https://www.advancingjustice-alc.org/news_and_media/trinh-v-vitiello-community-advisory/. Calma, Justine. “Forty Years After Resettlement, Thousands of Southeast Asian Refugees Face Deportation.” NBC News. November 23, 2015. Accessed November 11, 2018. https://www.nbcnews.com/news/asian-america/forty-years-after-resettlement-thousands-southeast-asian-refugees-face-deportation-n466376. Chan, Sucheng. “Ending the Indochinese Refugee Exodus.” In The Vietnamese American 1.5 Generation: Stories of War, Revolution, Flight and New Beginnings, 86-96. Temple University Press, 2006. Cheam, Bunthay. “Flashpoint in U.S.-Cambodia Repatriation Agreement has origins in work by grassroots group.” International Examiner. November 5, 2017. Accessed February 27, 2019. https://iexaminer.org/flashpoint-in-u-s-cambodia-repatriation-agreement-has-origins-in-work-by-grassroots-groups/. Constante, Agnes. “As Cambodian deportations resume, community looks for ways to cope.” NBC News. April 20, 2018. Accessed November 11, 2018. https://www.nbcnews.com/news/asian-america/deportation-cambodian-refugees-u-s-devastates-community-n867096. Constante, Agnes. “‘Never Too Late to Change’: In Deportation Limbo, Tung Nguyen Wants to Help Fellow Felons.” NBC News. January 23, 2017. Accessed November 11, 2018. https://www.nbcnews.com/news/asian-america/never-too-late-changedeportation-limbo-tung-nguyen-wants-help-n707956. Constante, Agnes. “Second Cambodian deportee to return to U.S., giving hope to others seeking return.” NBC News. February 27, 2019. Accessed February 27, 2019. https://www.nbcnews.com/news/asian-america/second-cambodian-deportee-return-u-s-giving-hope-others-seeking-n976511?fbclid=IwAR3b-VluGh1BiLfaCTvjlroaWUPrMa4p-2U3YBZdxQ0MgXIy2p-P8twImJU. Constante, Agnes. “Uncertainty over US-Vietnam agreement leads to deportation concerns.” NBC News. January 17, 2019. Accessed January 20, 2019. https://www.nbcnews.com/news/asian-america/uncertainty-over-u-s-vietnam-agreement-leads-deportation-concerns-n959571 De Anda, Sandra. “Will Governor’s Pardon of OC Refugee Tung Nguyen Help Him Stay in U.S.?” OC Weekly. December 4, 2018. Accessed January 20, 2019. https://ocweekly.com/will-governors-pardon-of-oc-refugee-tung-nguyen-help-him-stayin-u-s/. “Deportation and Human Rights.” Immigrant Defense Project. Accessed November 11, 2018. https://www.immigrantdefenseproject.org/issue-brief-deportation-and-human-rights/. The Devastating Impact of Deportation on Southeast Asian Americans, report, Southeast Asia Resource Action Center (SEARAC). 2015. “DHS Announces Implementation of Visa Sanctions.” July 10, 2018. Accessed November 12, 2018. https://www.dhs.gov/ news/2018/07/10/dhs-announces-implementation-visa-sanctions. Do, Anh. “Vietnamese Americans rally in Little Saigon against Trump administration’s push to deport thousands of war refugees.” Los Angeles Times. December 15, 2018. Accessed January 20, 2019. https://www.latimes.com/local/lanow/ la-me-ln-vietnamese-refugee-march-20181215-story.html?fbclid=IwAR15BdD1Aznpndnj3c8hTfRQUKdWHYspQdxl9wB6jz2glH1kJFPs3UgA1i8. Dunst, Charles and Krishnadev Calamur. “Trump Moves to Deport Vietnam War Refugees.” The Atlantic. December 12, 2018. Accessed December 22, 2018. https://www.theatlantic.com/international/archive/2018/12/donald-trump-deport-vietnam-war-refugees/577993/?utm_campaign=the-atlantic&utm_source=twitter&utm_content=edit-promo&utm_ medium=social&utm_term=2018-12-12T19%3A26%3A40. Eagly, Ingrid and Steven Shafer. “Access to Counsel in Immigration Court.” American Immigration Council. September 28, 2016. Accessed February 27, 2019. https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court Farrands, Chris. “Touching Friendship Beyond Friendship: Friendship and Citizenship in Global Politics.” Alternatives: Global, Local, Political 26, no. 2 (2001): 143-73. doi:10.1177/030437540102600203. Fujiwara, Lynn. “Refugees Betrayed.” In Mothers without Citizenship: Asian Immigrant Families and the Consequences of Welfare Reform, 51-92. London: University of Minnesota Press, 2008. Goodman, Adam. “Deportation: The Origins of U.S. Policy.” The Journal of American History. 105, no. 1 (June 1, 2018): 180–181. Increase Access to Higher Education:Why Are Southeast Asians Not Going To College? Report. Southeast Asia Resource Action Center (SEARAC). 2018. Johnson, Kay. “Children of the Dust.” Time International (South Pacific Edition), no. 19 (May 20, 2002): 37. “Meeting with Professor Chang-Muy.” Interview by author. November 7, 2018.

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JHULR | When Nowhere is Safe Morning Edition. “U.S. Deports The Latest Group of Cambodian Immigrants.” NPR. December 19, 2018. Accessed January 20, 2019. https://www.npr.org/2018/12/19/678089563/u-s-deports-the-latest-group-of-cambodian-immigrants Myers, John and Jazmine Ulloa. “Immigrants facing deportation, drug offenders and a former state lawmaker receive pardons from Gov. Jerry Brown.” Los Angeles Times. November 21, 2018. Accessed January 20, 2019. https://www.latimes.com/politics/la-pol-ca-thanksgiving-pardons-jerry-brown-20181121-story.html National Immigrant Justice Center. “Immigration Court Independence.” National Immigrant Justice Center. Accessed February 27, 2019. https://www.immigrantjustice.org/issues/immigration-court-independence NumbersUSA. “Recalcitrant Countries Accepting More Criminal Repatriates.” NumbersUSA. December 19, 2018. Accessed February 27, 2019. https://www.numbersusa.com/news/recalcitrant-countries-accepting-more-criminal-repatriates. Pearson, James. “U.S. seeks to deport thousands of Vietnamese protected by treaty: former ambassador.” Reuters. April 12, 2018. Accessed November 11, 2018. https://www.reuters.com/article/us-usa-vietnam-deportees/u-s-seeks-to-deportthousands-of-vietnamese-protected-by-treaty-former-ambassador-idUSKBN1HJ0OU. Piechowiak, Marek. “What Are Human Rights?: The Concept of Human Rights and Their Extra-Legal Justification.” In An Introduction to the International Protection of Human Rights: A Textbook, 3-14. 2nd ed. Institute for Human Rights, 1999. Randall. “Deportation Reversed. Cambodian Refugee Back in the United States.” AsAm News. November 5, 2018. Accessed November 11, 2018. https://asamnews.com/2018/11/05/deportation-reversed-cambodian-refugee-back-in-the-united-states/. Rotman, Edgardo. “Do Criminal Offenders Have a Constitutional Right to Rehabilitation?” The Journal of Criminal Law and Criminology 77, no. 4 (1986): 1023-068. Sanchez Wilson, Elaine. “Administration Escalates Attacks on Southeast Asian Families Before the Holidays.” SEARAC. December 18, 2018. Accessed January 20, 2019. http://www.searac.org/our-voices/press-room/administration-escalates-attacks-on-southeast-asian-families-before-the-holidays/ Sanchez Wilson, Elaine. “Organizations Across the Country to Launch National Week of Action to End Southeast Asian Deportations.” SEARAC. January 17, 2019. Accessed January 20, 2019. https://www.searac.org/our-voices/press-room/ organizations-across-the-country-to-launch-national-week-of-action-to-end-southeast-asian-deportations/ Schmidt, Samantha. “Vietnamese immigrants are stuck in limbo, detained indefinitely, lawsuit says.” The Washington Post. March 1, 2018. Accessed November 11, 2018. https://www.washingtonpost.com/news/morning-mix/wp/2018/03/01/ vietnamese-immigrants-are-stuck-in-limbo-detained-indefinitely-lawsuit-says/?utm_term=.5c3c979adf64. Southeast Asian Americans and the School-to-Prison-to-Deportation. Report. Southeast Asia Resource Action Center (SEARAC). 2018. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html [accessed 12 November 2018] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 12 November 2018] Vo, Linda Trinh, and Rick Bonus. “Southeast Asians in the House: Multiple Layers of Identity.” In Contemporary Asian American Communities: Intersections And Divergences, 60-74. Temple University Press, 2002. Zaharlick, Amy, and Jean Brainard. “Demographic Characteristics, Ethnicity And The Resettlement Of Southeast Asian Refugees In The United States.” Urban Anthropology and Studies of Cultural Systems and World Economic Development 16, no. 3/4 (1987): 327-73. http://www.jstor.org/stable/40553110. Zucker, Norman L. “Refugee Resettlement in the United States: Policy and Problems.” The Annals of the American Academy of Political and Social Science 467 (May 1983): 172-86.

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Why the Austrian Constitutional Court Legalized Gay Marriage Johannes Lang Abstract This article seeks to provide insights into the decision-making processes of European constitutional courts by studying the Austrian Constitutional Court’s evolution on LGBT rights that culminated in its legalization of gay marriage in 2017. The study examines the empirical evidence in favor of a variety of theories of judicial decision-making. drawn from the nascent European as well as the large existing body of American literature, including the role of partisan appointments, political influence, public opinion, and supranational institutions. While shifts in governing coalitions had no impact on the Austrian Court’s decisions, the changing political make-up of the Court as well as the conservative People’s Party’s preference for a judicial resolution might have incentivized the Constitutional Court to act. More important, however, was the sea change in attitudes towards homosexuality among the general population and the concurrent activism and rising visibility of LGBT interest groups. In addition, the European Court of Human Rights played a vital role as a catalyst for the Austrian domestic court’s increasingly liberal stance. Thus, this study suggests that changes in popular opinion and the role of the ECtHR are the main drivers of the “rights revolution” observable across Europe. By explicating the mechanisms behind the ECtHR’s influence, this article adds to the existing literature on the complex interplay between domestic and supranational judicial bodies.

T H E J O H N S H O P K I N S U N D E R G R A D U AT E L AW R E V I E W | S P R I N G 2 0 1 9 | V O L U M E 1

The Silent Revolution

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JHULR | The Silent Revolution The Austrian constitution, written by the famous judicial theorist Hans Kelsen, envisions only a very limited role for the judicial branch. Still, in 2017, Austria became the first European country to legalize gay marriage by judicial action. The birthplace of the “European model” of judicial review, Austria has witnessed an unprecedented expansion in recent decades of the Constitutional Court’s role in the protection of minority rights. In particular, the Austrian Constitutional Court’s changing judicature on LGBT rights exemplifies the general European trend towards the juridification of basic rights, a widely recognized yet largely unexplained phenomenon. This case study examines the factors influencing the Austrian Constitutional Court’s shifting gay rights judicature by assessing the role of changes in political appointments, political constraints, public opinion, and developments on a supranational level.

Thus, the study shines light on the variables impacting the decision-making of national courts in Europe, as well as some of the causes for their growing influence. Despite widespread agreement that most European courts have long departed from their policy of judicial minimalism, there exists an astounding lacuna in the scholarly literature concerning the circumstances under which courts operating under the “European model” of judicial review are more likely to protect minority rights. In Europe, studying “law and courts as part of politics can appear iconoclastic and subversive.”1 On a similar note, scholar Tamara Ehs laments the “stepmotherly treatment of constitutional jurisdiction by political science” in 2 the particular context of Austria. While American legal scholars have offered various models of judicial decision-making, most European scholars erroneously believe that the actions of their national courts are either easily explained by political circumstances or too inconsequential to merit further research.

Austria in the Broader European Context For a number of reasons, Austria is particularly well-suited to examine the evolution of gay rights through a sociolegal prism. Firstly, the country occupies a middle position between the more liberal North and the more conservative East in terms of its geography, social attitudes, and legal history.3 Most Eastern European countries explicitly banned same sex marriage following their transition to capitalism. As in many other Catholic European countries, the Church’s opposition to gay marriage long influenced public opinion.4 On the other hand, in 2001, the Netherlands became the world’s first country to recognize marriages between same-sex couples. Secondly, as the first European country to enshrine judicial review in its constitution. Austria provides a prime example for the Kelsenian model of judicial review. When drafting the Austrian constitution, Hans Kelsen sought to engineer a compromise between politicians wary of the power of the judiciary and the legal scholars favoring the wholesale adoption of the American model of judicial review.5 In rejection of the natural law tradition, Kelsen purposely avoided mention of human rights as he feared an open-ended bill of rights would open the 26

JHULR | The Silent Revolution floodgates for an unrestrained judicial review of the American kind.6 Today, the Kelsenian, or European, model of judicial review commonly includes three options for challenging the constitutionality of a statute: constitutional challenges usually initiated by public institutions; constitutional questions of lower court judges; and, in some countries, including Austria, 7 constitutional complaints by private individuals against rights violations by state authorities. Contrary to the U.S. system, the decentralized European model allows only the highest court to rule on the constitutionality of statutes. It encourages legal and constitutional arguments to feature prominently in the political process and avoids the counter-majoritarian dilemma of the American system because it actively invites the courts into the political process.8 The Austrian Constitutional Court (Verfassungsgerichtshof) is made up of fourteen regular (and six alternate) members, including one chief justice who may participate and direct deliberations, but may not partake in the final voting process. While the Federal President of the Republic formally appoints all members, six are chosen on the recommendation of the federal government, three by the National Assembly (Nationalrat) and another three by the Federal Council (Bundesrat). Members, who include academics, judges, and other legal professionals, serve until their 70th birthday.9 In Austria, the Constitutional Court shares power with two other courts of last resort: the Administrative Court (Verwaltungsgserichtshof) reviews the decisions of administrative authorities, while the Supreme Court (Oberster Gerichtshof) is the final arbitrator on civil and criminal matters.10 Due to its historical influence, the Kelsenian “Austrian” system has been adapted with some variations by countries all over the continent. Thirdly, the recent expansionary rights interpretation of the Court reflects developments in other European countries. Shapiro et al. write that “a political jurisprudence of rights is today endemic and occasionally epidemic” in Europe.11 As early as 2003, Stone Sweet asserted that, “Parliamentary sovereignty can be pronounced dead. It was killed off during the second half of the twentieth century in successive waves of constitution-making.”12

After World War II, European constitutional courts became more and more active in the protection of fundamental rights.13 In the last three decades of the 20th century alone, courts in France, Germany and Italy have each annulled more laws than the U.S. Supreme Court in two centuries.14 Stone Sweet, the eminent scholar on the European model of judicial review. has found an increasing convergence in the use of judicial review in Europe and the U.S.15 Similarly, the Austrian Constitutional Court has continually expanded its powers since its inception in 1919. Originally, it was created primarily to settle conflicts of authority between 16 state governments and the federal administration. In Austria, the original “Federal Constitutional Law” (Bundesverfassungsgesetz or B-VG) is not the only source of constitutional law; Parliament needs but a two-thirds majority to legislate new “constitutional laws.”17 Therefore, the legislative could fairly easily overturn the Court’s rulings. However, in a groundbreaking decision reminiscent of the Marshall Court’s famous Marbury ruling, the Constitutional Court, in 2001, repealed such a constitutional law for the first time.18 27

JHULR | The Silent Revolution Since then, the Court has consistently ruled that any law limiting its own powers or infringing on basic rights would amount to an overhaul of the original Federal Constitutional Law and thus require an official referendum. While the Constitutional Court has since refused to exercise this self-granted power, its decision likely significantly dampened legislative activism. Moreover, the demise of Austria’s traditional parties since the late 90s has impeded the emergence of coalitions commanding two thirds of votes in the National Assembly.

Rather than from its power to review constitutional laws, the Constitutional Court’s increasing influence stems largely from its expansive interpretation of the “principle of equality.” Enshrined in the original Federal Constitutional Law, the principle prohibits the legislature from treating generally equal matters unequally without justification. The Constitutional Court has often taken it upon itself to decide when differentiations are objectively justified. It keeps its assessment of the objectivity and proportionality criteria deliberately vague, making the 19 principle of equality an effective means of expansionary rights protection. In 1998, the Court held that the principle of equality also could not be altered without a popular 20 referendum. In light of these changes, the number of laws declared unconstitutional has more than doubled over the past decades.21 In addition, the Constitutional Court has increasingly treated its own precedents as a source of law.22 In short, Austria is highly representative of the European continent as a whole in its treatment of gay rights, its model of judicial review, and its developments in judicial influence. The remainder of this case study proceeds in four steps. First, I briefly delineate the history of LGBT rights in Austria, focusing on the interplay between the legislature and the Constitutional Court. Second, I review various competing hypotheses put forward by American and European legal scholars to explain and predict the decision-making of high courts. Third, I examine the evidence for four possible variables influencing the Court’s gay rights rulings. In the fourth and final section of this paper, I summarize my results and discuss the further implications of my findings.

Legal History of LGBT Rights in Austria The legal evolution of gay rights in Austria is inextricably intertwined with the evolution of the Constitutional Court’s judicature. Although Parliament already legalized homosexual acts between consenting adults in 1971, the Court made clear in 1996 that the legislature had not intended for this law to validate same-sex marriage. In fact, it went even further by denying that a partner of the same sex could constitute an appropriate “life companion.”23 In 2002, however, the Court found a violation of the principle of equality in “Homosexual Clause” 209 which had warranted different ages of consent for heterosexual and homosexual relationships.24 Parliament complied by lowering the age of consent for homosexual acts from eighteen to fourteen with the agreement of the governing right-wing coalition between People’s Party (Österreichische Volkspartei, ÖVP) and Freedom Party (Freiheitliche Partei Österreich, FPÖ). In the following year, however, the court mitigated the

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JHULR | The Silent Revolution impact of its decision by clarifying once again that neither the principle of equality nor the European Convention of Human Rights demanded the extension of marriage (an institution directed at least in principle to the possibility of parenting) to same-sex couples. In keeping with EU directives, the legislature in early 2004 chose to pass a ban on discrimination based on sexual orientation and to open military service to gay individuals. In 2005, the Court rejected an individual appeal claiming that existing laws regarding the adoption of stepchildren were in violation of the principle of equality.25 In 2009, however, the Constitutional Court first cited the principle of equality in relation to transgender rights when it found the public authorities guilty of reversing the burden of proof 26 by requiring the appellant to bring in an expert opinion proving her sex change. After two years of heated debates following a change in ÖVP leadership, the coalition made up of People’s Party and Social Democratic Party (Sozialdemokratische Partei Österreich, SPÖ) in 2010 reached a compromise with the Registered Partnership Law. Under the new law, homosexual partners could form a “registered partnership” and enjoy the same tax and 27 inheritance benefits granted to married couple. Yet the conservatives blocked the symbolic equalization of gay couples by preserving the right to officially conclude a marriage before the civil registry office (Standesamt) to heterosexual couples. In March 2012, the Constitutional Court commenced a string of important rulings that would culminate in the 2017 decision. Its 2012 verdict, though limited in its short-term effects, set an important precedent. According to the 2010 law, couples had been allowed to take on each other’s last name but prohibited from the common practice among heterosexual couples of placing a hyphen between their two last names. In an uncharacteristically long decision, the Court stated that the legislature could not discriminate between heterosexual and homosexual couples “on principle.”28 It set high standards for future laws by requiring that differential treatment on the basis of sexual orientation be justified by particularly “grave concerns.”29 In 2013, Parliament legalized so-called “step-child adoption,” allowing the partner of a natural parent to adopt his or her child.30 Emboldened, the Court in December 2014 repealed the remaining rules limiting the adoption rights of registered partners, thus essentially legalizing same-sex adoption. It found no objective basis for differential treatment on the basis of sexual orientation even with regard to children’s welfare.31 In 2016, the legislature followed the Court’s decision. The following year, in April, Parliament granted same-sex couples the right to share a last name and to handle weddings at the civil registry office, affording the registered partnership equality with traditional marriage in all but name.

By then, Austria was the only country in the world where same-sex couples were completely equal in parental and family rights, but still barred from officially entering a marriage agreement.32 In the summer of 2017, the German Bundestag legalized gay marriage.33 Still, the conservatives in the People’s Party refused to abandon the formal distinction between the two legal institutions. Thus, the Austrian Constitutional Court in December 2017 chose to 29

JHULR | The Silent Revolution repeal the ban on same-sex marriage as unconstitutional. Since heterosexual and homosexual couples had been granted equal rights already, the Court argued that the nominal differentiation was inconsistent and in violation of the principle of equality. Its ruling marked the coup de grâce in a long evolution of jurisprudence: in just two decades, Austria’s Constitutional Court had reversed course on all major gay rights issues, including the right to adoption and marriage. Austria was the first country in the world where judicial action ensured equal adoption rights and the first European country where a court granted same-sex couples the right to marry.34 In 2018, the Constitutional Court delivered another bombshell when it compelled public authorities to provide for the possibility of identification with a third gender, making Austria only the twelfth country in the world to do so. Other Western countries, while liberalizing gay rights, have been unwilling to go as far as the Austrian Court.

Theories of Judicial Decision-Making Various explanations have been put forward to explain the increasing judicial activity of European courts. Comella explains how the experience of fascism increased the legitimacy of judicial intervention in the aftermath of World War II.35 He also points to the role of public opinion in forcing the legislative and executive branches to comply with popular decisions of the courts.36 Shapiro et al. trace the rise of judicial participation in Europe since the mid-50s back to administrative expansion, reduced public confidence in technocratic governance, the proliferation of bills of rights, and the growing influence of interest groups and the general public on the political process.37 Mattias Kumm points to the influence of international considerations on the decision-making of European courts. In an increasingly globalized world, “only a cosmopolitan state—a state that incorporates and reflects the global legitimacy conditions for claims to sovereignty in its constitutional structure and foreign policy—is a legitimate state.”38 On a related note, Stone Sweet contends that national courts may leverage the European Court of Human Rights (ECtHR) to increase their own bargaining power, preferring to avoid open conflict with the powerful European court.39 In the United States, where research on the factors influencing judicial decision-making is much more advanced, legal scholars have developed a number of theoretical models. While some of these may be applicable only to the American model, others might be adapted to the European context. Studies in the American and European context suggest at least four potential variables guiding the Austrian Constitutional Court in its judication of LGBT rights. First, the Court’s decision may be correlated with its partisan make-up. The attitudinal model of decision-making, introduced by Segal and Spaeth, “holds that the [United States] Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and the values of the judges.”40 While individual biases and beliefs of judges are difficult to 41 measure, Epstein et al. have found that American justices tend to vote along party lines.

Applying this finding to the Austrian Court, we would expect the Court’s more liberal stance to be influenced by liberal appointments on the recommendation of the Social Democratic Party.

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JHULR | The Silent Revolution Second, political parties might affect judicial rulings by providing incentives and disincentives for certain actions. Robert Dahl was the first to argue that the U.S. Supreme Court ultimately always tends to side with the political majority.42 According to the rational choice model, judges make strategic choices, weighing the benefits from various outcomes against the expected political costs.43 Similarly, the separation of powers model developed by Brian Marks, which views courts as rational utility-maximizing actors, predicts that courts might sometimes prefer to defer to the government or mitigate the effects of their rulings to prevent legislative backlash.44

On the other hand, politicians, unable to implement legislative action or seeking to avoid blame and conflict, may actually encourage court action to overcome entrenched political barriers.45 Consequently, we would expect the decisions of the Austrian Constitutional Court to have been influenced by changes in governing coalitions and the positions of parties and individual leaders. Third, the Austrian Court’s decisions may reflect the opinions of the general public or special interest groups rather than those of the relevant political leaders. In the American context, Mishler has suggested that “members of the Court are political creatures, who are 46 broadly aware of fundamental trends in ideological tenor of public opinion.” Klarman has found that the US Supreme Court has almost never acted in outright opposition to popular consensus.47 In addition to general public opinion, concerted efforts of interest groups may have influenced the Court’s decision. Legal rights consciousness and organizational resources (including financial wealth, effective leadership, and legal expertise) can allow social movements to affect judicial decisions that may in turn mobilize advocates for further reform and generate backlash from opposition groups.48 Using the example of Canada, Smith has shown that the judiciary often provides a first impetus to social movements that in turn deliberately opts to leverage their influence over the judicial process.49 Fourth, the Court’s changing judicature may mirror changes in European law as evidenced by supranational treaties and judgments of the European Court of Human Rights. Here, the causal mechanisms remain relatively unclear. National courts may be motivated to avoid punishment from Strasbourg to increase their own legitimacy and seek to increase legal certainty by coordinating their rulings with those of higher courts. Individual judges, especially academics with close personal and scholarly connections to other European countries and institutions, could also be socialized into support for the EU-based order. Lastly, domestic courts might attempt to increase their own power by using European texts and precedents as a basis for their decisions.

Methodology This case study utilizes various tools to examine competing hypotheses regarding the factors influencing the evolution of the Court’s stance. To discern the effects of partisanship on the Court, I have researched the partisan affiliation of every judge since 2000. 31

JHULR | The Silent Revolution I have sorted a long list of public pronouncements from party leaders and representatives to investigate potential effects of politics on judicial decisions. By analyzing all surveys of public opinion in Austria regarding questions relating to gay rights and investigating the development of interest groups, I examine the correlation between public opinion and court action. To assess the possible influence of the European Court of Human Rights, I review its major decisions in the past few decades in relation to comparable judgments issued by the Austrian Constitutional Court.

The Role of Partisan Appointments There is little public information on the changes in party affiliation of Constitutional Court judges over the years. However, my own research indicates that judges appointed at the behest of the Social Democratic Party were in the majority before 2002, and conservative judges controlled the Court until 2012. Between 2012 and 2017, both major political parties were equally represented. Excluding the Court’s president, however, conservative judges have consistently been in the majority since 2003. They were especially strongly represented between 2008 and 2012, when liberal judges made up only five out of thirteen voting members and six out of fourteen total members. There is some evidence to suggest that political appointments may have had a role in affecting the voting behavior of the Court. After issuing its first ruling in favor of gay rights under a liberal majority in 2002, the Court largely snubbed gay rights (including its 2003 and 2005 decisions) under its conservative majority. After liberals gained a seat in 2012, the Austrian Constitutional Court significantly increased its judicial activism in favor of gay rights protection, culminating in its groundbreaking 2014 and 2017 decisions. However, the third gender ruling, for example, was issued in June 2018, after the new governing coalition had appointed three new judges: the former vice chancellor of the People’s Party and two decidedly right-wing judges with close ties to the Freedom Party. While political appointments may have led the Court to adopt a more liberal position, they were likely not the most decisive factor. According to former Constitutional Court judge Theo Öhlinger, only one decision between 1977 and 1989 was based on party lines.50 Interviews with current judges suggest that the effects of political affiliation are still limited.51 For instance, current President Brigitte Bierlein, nominated by the Austrian People’s Party in 2003, had already spokeen out in favor of gay marriage as early as 2009.52

Political Influence of Domestic Parties Perhaps changing political coalitions can provide a better explanation for the Court’s actions. Between 2000 and 2007, the People’s Party was in a coalition with the Freedom Party, including the Alliance for the Future of Austria (Bündnis Zukunft Österreich, BZÖ) after its split from the Freedom Party in 2005. Afterwards, the Social Democrats held the post of chancellor for ten years, while the People’s Party served as their junior coalition partner. After the 2017 elections, the victorious People’s Party again entered into a coalition with the rightwing Freedom Party. There is little evidence in favor of the hypothesis that the changes in governing coalitions had any discernable effect on the Court’s decisions. 32

JHULR | The Silent Revolution In 2002, the Constitutional Court expanded gay rights in the face of a right-wing coalition, but remained inactive between 2007 and 2012 during the tenure of a more liberal government. The Court’s 2018 ruling suggests that it has not abandoned its protection of LGBT rights in the face of a more hostile governing coalition.

However, there is some anecdotal evidence to suggest that the People’s Party strategy of judicialization, or tacit appeal to Court action, lessened the Court’s fear of backlash. In contrast to the leftist Greens and Social Democrats and the right-wing Freedom Party, the conservative People’s Party has not always been clear in their opposition to gay marriage. Wilhelm Molterer (chairman from 2007 to 2008) rejected marriage before the civil registry office (Standesamt) in March 2008, but called for the introduction of a registered partnership.53 His successor, Josef Pröll (2008-2011), helped engineer the 2010 registered partnership law, but failed to convince his party to allow gay marriages before the Standesamt. Michael Spindelegger (2011 to 2014) took up the party’s conservative stance, while Reinhold Mitterlehner (2014 to 2017) supported and Sebastian Kurz (2017 to present) publicly opposed gay marriage.54 Both in 2014 and 2017, the conservative Chairmen were quick to assure that their party would respect and implement the ruling; in 2018, incumbent 55 Kurz avoided controversy by declining to comment on the Court’s ruling. Social Democratic representative Hannes Jarolim alleged that both chairman and chancellor Kurz and vice chancellor Wolfgang Brandstetter had in private expressed support for gay marriage but “weren’t man enough” to declare their views in public.56 Ultimately, the wavering stance of various chairmen and the moderate reactions of the People’s Party leadership to controversial rulings of the Constitutional Court suggest that some inside the ÖVP actually preferred a judicial resolution to the long-standing dispute. In recent years, the People’s Party seems to have increasingly sought a judicial resolution to the conflict over gay rights that was imperiling the internal coalition between conservative rural Catholics and urban liberals.

Public Opinion and Interest Group Activity In past decades, public opinion in Austria has evolved rapidly on the issue of gay rights. The percentage of people rejecting homosexuality declined from 43 percent in 1999 to 35 percent in 2008.57 In 2013, in the lead-up to the Court’s landmark ruling, two independent surveys showed a nineteen and 22 percent margin in support of adoption rights for gay individuals.58 Approval of gay marriage (61 percent versus 33 percent) was even higher and had reportedly skyrocketed to 74 percent by 2018.60 In short, the Supreme Court’s evolution exhibits a clear correlation with the overall shift in public opinion. As public opinion changed, interest groups promoting LGBTQ rights also gained a stronger footing. In 1979, HOSI (Homosexuelle Initiative), to this day the most visible gay rights group in Austria, was founded. HOSI’s preference of the political over the judicial process, however, led a faction of activists to form Legal Committee Lambda (Rechtskomitee Lambda) under the leadership of Helmut Graupner.61 HOSI further antagonized, rather than courted, the

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JHULR | The Silent Revolution Constitutional Court by demanding the resignation of five of its judges, while continuing to work extensively even with conservative politicians.62 Meanwhile, Lambda’s head lawyer and president Helmut Graupner litigated the 2002, 2014, 2017, and 2018 cases. Without Lambda’s persistent litigation efforts, some of the Court’s rulings might well have taken much more time. While it is difficult to say if the legal changes would have occurred independently of the groups’ advocacy, it seems likely that Lambda’s deliberate strategy directed at the Constitutional Court was crucial in keeping gay rights on the top of the judicial agenda.

European Influence on the Austrian Court Lastly, the Constitutional Court may have been impacted by the growing European integration of the past few decades, as evidenced by the influence of European law and supranational European courts. The European Convention on Human Rights (ECHR), which came into effect in 1953, allows individual applicants to file complaints against their 63 respective governments before the European Court of Human Rights. Although the Convention allows states to decide its domestic legal status for themselves,64 Austria, after ratifying it in 1958, chose to elevate the ECHR to constitutional status in 1964.65 In recent decades, Austria’s Constitutional Court has increasingly “discovered” the Convention to justify its decisions. For Nastić, “the ECHR now functions as a ‘shadow constitution,’ or a ‘surrogate charter of human rights.’”66

The Convention plays a particularly vital role in Austria since its own constitution lacks an extensive catalogue of social rights. But the European Court of Human Rights (ECtHR) may play an even more decisive role. According to Stone Sweet, the European Court of Human Rights “is today the single most 67 important rights-protecting court in the world.” Like the Austrian Constitutional Court, the European Court of Human Rights has had to wrestle with gay rights in various contexts over the years. Though its general trend also points toward a more LGBT-friendly judicature, the “margin of appreciation” doctrine has impelled the ECtHR to act with greater restraint. This precept emphasizes the priority of domestic laws in line with the E.U.’s subsidiarity principle. In the 2002 case of Fretté v. France, for example, the Court accepted the refusal of the French Conseil d’État to grant adoption rights to a single gay man for posing “ substantial risks to the child’s development,” noting that states could legitimately act to protect the health and rights of children.68 In the following year, however, the Court decided in Karner v. Austria that Austrian citizen Siegmund Karner had unlawfully been refused tenancy after the death of his same-sex partner. According to the standard put forth in Karner, differentiation on the basis of sexual orientation demands very serious justification, and the Austrian government had failed to justify an excessively narrow interpretation of its tenancy laws.69 Almost a decade later, this standard was echoed in the Austrian Constitutional Court’s 2012 decision that required “grave concerns” to justify differential treatment between heterosexual and homosexual couples. In 2008, the ECtHR ruled in E.B. v. France, in apparent contradiction of its previous Fretté ruling, that France had violated Article 14 of the Convention by refusing to grant a woman the 34

JHULR | The Silent Revolution the right to adopt her female partner’s child. Even though the French authorities’ justification, as in the case of Fretté, had not explicitly mentioned the applicant’s sexual orientation, the ECtHR found that fear about the woman’s homosexuality had “contaminated” the decision.70 Even more relevant to the Austrian Constitutional Court was the ECtHR’s 2013 ruling in X. and Others v. Austria, in which it invalidated the Austrian government’s ban on second-parent adoption. According to the majority’s opinion, Austria’s discriminatory treatment on the basis of sexual orientation constituted a violation of Articles 8 and 14 of the Convention without furthering the best interests of the child.71 The Austrian Constitutional Court’s 2014 ruling extending the general right to adoption to all same-sex couples, emulating the language of the ECtHR precedent. At the same time, the European Court of Human Rights has been extremely careful to avoid expanding anti-discrimination rulings so far that they would, as in the case of the Austrian Constitutional Court, “naturally” lead to the last step of legalizing gay marriage. In its 2010 decision Schalk and Kopf v. Austria, a narrow majority opined that “the Convention of Human 72 Rights does not oblige states to ensure the right to marry to homosexual couples.” Balancing the “emerging European consensus towards legal recognition of same-sex couples” against the historical institution of heterosexual marriage, the Court clarified that Article 12 of the Convention granted the right to marry explicitly only to men and women. In Gas and Dubois v. France (2012), the Court found no violation of Articles 8 and 14 in France’s refusal to allow step-child adoption as based on marital status rather than sexual orientation.73 In Vallianatos and Others v. Greece, the Court merely demanded that the right to a civil union not be restricted to heterosexual couples.74 As late as October 2017, in Ratzenböck and Seydl v. Austria, only two months before the Constitutional Court’s landmark gay marriage decision, the ECtHR denied that the legal status quo in Austria was in violation of the Convention.75

Therefore, it would be wrong to argue that the Austrian Constitutional Court has merely copied the judicature of the European Court of Human Rights. Ultimately, the interplay between the Austrian legislature and judiciary created a momentum of its own that led the Court to go beyond the standards explicitly encouraged by the ECtHR.76 It seems clear, however, that the Austrian Court, in its judicature on gay rights, received its original stimulus from the European Court of Human Rights. The ECtHR’s rulings in Karner, E.B. v. France, and X. and Others v. Austria, provided a foundation upon which the Constitutional Court could defend and expand the protection of LGBT individuals. The 2018 third gender decision provides a further example of the Austrian Constitutional Court’s reliance on ECtHR precedents such as Goodwin, A.P., Garçon and Nicot, Mikulić, and Guillot. In an important precedent, the ECtHR had already ruled in 2002 that the British government had breached Articles 8 and 14 by denying transgender applicant Christine Goodwin the right to change her birth certificate.77 Just a year before the Austrian Constitutional Court’s decision, the ECtHR ruled in A.P., Garçon and Nicot v. France that requiring sterilizing surgery for legal gender recognition was in violation of Article 8.78 In its 2018 decision, the Austrian Constitutional Court held that Article 8 required protecting personal identity, individuality, and integrity.79 35

JHULR | The Silent Revolution There are a number of reasons for the considerable impact of the ECtHR on the basic rights judicature of national courts such as the Austrian one. Cooperating with supranational and international institutions and appealing to principles of supranational or international law likely increases the perceived legitimacy of a domestic court. As Stone Sweet argues, enforcing lower standards would run counter to the “rights patriotism” prevalent among European national courts attempting to “outdo” each other in rights protection.80 Moreover, the socialization hypothesis, that affiliation with networks of jurists influences judicial philosophies, seems highly plausible in the face of increased European connections among academic elites. For example, Christoph Grabenwarter, a judge on the Constitutional Court since 2005 and Vice President since 2018, has previously served as an ad-hoc judge on the European Court of Human Rights. All judges regularly participate in pan-European conferences and can be expected to pay close attention to ECtHR decisions. Perhaps most importantly, increasing reliance on external legal instruments in domestic courts’ internal 81 decision-making processes actually serves to expand the domestic courts’ powers. According to Comella, a national court “will lose much of its relevance in the area of fundamental rights” unless it incorporates “the European Convention as part of the national constitution.”82 This strategy has been employed by Austria as early as 1964, but only in recent decades has the Constitutional Court started to discover the treasure trove that is the ECtHR.

Conclusion A variety of factors stimulated the Austrian Constitutional Court’s evolving judicature on LGBT rights. Its changing political make-up has likely had a minor effect on its stance on gay rights, with greater Social Democratic and conservative representation generally correlating with greater and weaker judicial protection, respectively. Although the shifts in governing coalitions overall had no effect, the recent softening in the position of the People’s Party accompanied by its refusal to criticize the Court’s actions might have indirectly incentivized judicial action.

More important, however, was the sea change in Austrian attitudes towards homosexuality, accompanied by the increasing activity of gay rights interest groups favoring judicialization. For its two most important rulings in 2014 and 2017, the Constitutional Court likely enjoyed the support of at least two thirds of the general population. Perhaps most noteworthy is the clear influence of the European Court of Human Rights on the decision-making of the Austrian Constitutional Court which served as a catalyst of the Court’s evolution. The Court’s 2012 and 2014 rulings both harken back to ECtHR precedents. Similarly, the influence of European law as embodied in the Convention on Human Rights is clearly visible in the rulings of the Constitutional Court. Unfortunately, more detailed insights into the decision-making process of Austria’s Constitutional Court are limited by the opacity of its appointment, deliberation, and voting

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JHULR | The Silent Revolution processes, which occur beyond the purview of the public. In the absence of public voting and dissenting opinions, the impacts of the political appointment process remain unclear. In addition, the public pronouncements of politicians, as discussed previously, might offer only limited insights into their true intentions. Lastly, some of the factors discussed before— including the development of political appointments, party positions, public opinion, and interest group activity—are difficult to disentangle. Even the rulings of the ECtHR may be impacted by changing social attitudes on a European level. Still, this case study provides a number of helpful insights explaining the European “rights revolution” characterized by the increasing judicial activism of European high courts and the factors generally influencing the decision making of courts under the European model of judicial review. First, it suggests that the European Court of Human Rights has promoted minority rights not only directly by repealing discriminatory national laws, but also indirectly by encouraging domestic courts to implement more stringent standards in their basic rights judicature. In addition, it provides a first attempt to study judicial decision-making under the European model. Applying the model derived from the specific case examined in this study, we can extrapolate that European courts are generally more likely to defend minority rights given substantial public support and relevant ECtHR precedents. Importantly, this conclusion does not imply that constitutional courts will generally defend the rights of minorities. Given rising Islamophobia and limited ECtHR action to protect the rights of Europe’s Muslim minority, for example, courts may be less inclined to stop the government when countries like Germany, France, and Austria regulate the public appearance of Muslim women. In ensuring equal rights for members of the LGBT community, the Austrian Constitutional Court deftly avoided public backlash. But unless it can count on the legitimacy derived from both public opinion and ECtHR precedent, the Court will have to carefully consider its next moves.

Johannes Lang is a sophomore from Vienna, Austria, studying Government with a

minor in Economics at Harvard College. He has conducted research on Chinese investment in Latin America and U.S.-Iran relations and leads Harvard UNICEF’s advocacy efforts.

Notes 1

Martin Shapiro et al.,“The New Constitutional Politics of Europe,” Comparative Political Studies 26, no. 4 (1994): 398. Tamara Ehs, “Der VfGH als politischer Akteur. Konsequenzen eines Judikaturwandels,” Österreichische Zeitschrift für Politikwissenschaft 44, no. 2 (2015): 16. 3 Anna Leisner-Egensperger, “Das neue österreichische Eherecht – ein Regelungsmodell für Europa?” Journal für Rechtspolitik 26 (2018): 75. 4 Christoph Knill et al., “Die Katholische Kirche und Moralpolitik in Österreich: Reformdynamiken in der Regulierung von Schwangerschaftsabbrüchen und der Anerkennung gleichgeschlechtlicher Partnerschaften.” Österreichische Zeitschrift Für Politikwissenschaft, no. 3 (2014): 282. 2

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JHULR | The Silent Revolution 5

Alec Stone Sweet, “Judging Judicial Review: Marbury in the Modern Era: Why Europe Rejected American Judicial Review: And Why It May Not Matter,” Michigan Law Review 101 (2003): 2766. 6 Ibid. 7 Victor Comella, Constitutional Courts and Democratic Values: A European Perspective (New Haven; London: Yale University Press, 2009), 7. 8 Ibid., 63. 9 Sara Lagi, “Hans Kelsen and the Austrian Constitutional Court (1918-1929),” Co-Herencia 9, no. 16 (2012): 273-95. 10 Ibid. 11 Shapiro et al, “The New Constitutional Politics of Europe,” 409. 12 Stone Sweet, “Judging Judicial Review,” 2745. 13 Comella, Constitutional Courts and Democratic Values, 29. 14 Stone Sweet, “Judging Judicial Review,” 2780. 15 Ibid, 2746. 16 Theo Öhlinger, “The Genesis of the Austrian Model of Constitutional Review of Legislation,” Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 16, no. 2 (June 2003): 4. 17 Ibid., 10. 18 Ibid. 19 Ehs, “Der VfGH als politischer Akteur,” 25. 20 Ibid., 22. 21 Nicola Corkin, Developments in Abstract Judicial Review in Austria, Italy and Germany (Birmingham: University of Birmingham, 2010), 22. 22 Öhlinger, “The Genesis of the Austrian Model,” 8. 23 European Chamber 2008. 24 “G6/02,” Rechtsinformationssystem, June 21, 2002. 25 RIS 2005. 26 VfGH 2009, 10. 27 Knill “Die Katholische Kirche und Moralpolitik in Österreich,“286-287. 28 “G 131/11-5,” Verfassungsgerichtshof, March 3, 2012, 5. 29 Ibid., 12. 30 “Austria declares ban on gay adoption illegal,” The Local, January 14, 2015. 31 “G119/2014 ua,” RIS, December 11, 2014. 32 “Adoptionsrecht für Homosexuelle ab Freitag,” ORF, Last modified December 30, 2015. 33 Leisner-Egensperger, “Das neue österreichische Eherecht ,“67. 34 Philipp Aichinger, “Gleichstellung: Adoptionsrecht für Homosexuelle,” Die Presse, January 14, 2015. 35 Victor Comella, “The European Model of Constitutional Review of Legislation: Toward Decentralization?” International Journal of Constitutional Law 2, no. 3 (2004): 78 36 Ibid., 79. 37 Shapiro et al, “The New Constitutional Politics of Europe,” 409. 38 Mattias Kumm, “The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law,” Indiana Journal of Global Legal Studies 20, no. 2 (2013): 605 39 Stone Sweet, “Judging Judicial Review,” 2772; Alec Stone Sweet, “Comments on Michel Rosenfels’s ‘The Identity of the Constitutional Subject’: The European Convention on Human Rights and National Constitutional Reordering,” Cardozo Law Review 33 (2012): 1867. 40 Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002): 86. 41 Lee Epstein et al., “Dynamic Agenda-setting on the United States Supreme Court: An Empirical Assessment,” Harvard Journal on Legislation 39, no. 2 (2002): 395-433. 42 Robert Dahl, “Decision-Making in a Democracy: The Role of the Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957): 279. 43 Segal and Spaeth, The Supreme Court and the Attitudinal Model Revisited, 97. 44 Ibid., 103. 45 Gordon Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics (Cambridge, UK; New York: Cambridge University Press, 2009), 16 46 William Mishler, and Reginald S. Sheehan, “The Supreme Court as a Countermajoritarian Institution – the Impact of Public Opinion on Supreme Court Decisions,” American Political Science Review 87, no. 1 (1993): 89 47 Michael Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions,” Virginia Law Review 82, no. 1 (1996): 96 48 Michael McCann, 1999. In Gillman, Howard., and Cornell W. Clayton. The Supreme Court in American Politics: New Institutionalist Interpretations. (Lawrence, Kan.: University Press of Kansas, 1999), 7; Gerald Rosenberg, The Hollow Hope Can Courts Bring about Social Change? 2nd ed. American Politics and Political Economy. (Chicago: University of Chicago Press, 2008). 49 Miriam Smith, “Social Movements and Judicial Empowerment: Courts, Public Policy, and Lesbian and Gay Organizing in Canada,” Politics & Society 33, no. 2: 327-53 (2005): 328. 50 Öhlinger, “The Genesis of the Austrian Model,”12. 51 Corkin, Developments in Abstract Judicial Review in Austria, Italy and Germany, 170. 52 Philipp Aichinger, “Höchstrichterin: Nein zu Frauenquoten,” Die Presse, December 27, 2009.

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JHULR | The Silent Revolution 53

Andreas Laun, “Wilhelm Molterer, die, Homo-Ehe‘ und der Zeitgeist.” Katholische Nachrichten, September 24, 2018; Die Presse, “Homo-Ehe: Molterer stellt sich que(e)r. ” March 2, 2008. 54 Oliver Pink, “Homosexuelle: ÖVP öffnet sich für das Standesamt,” Die Presse, September 21, 2016; “Mitterlehner für die Homo-Ehe,” OE24, January 19, 2015. 55 Aichinger 2015; Familie and Familienrecht, “Update zur aktuellen Diskussion um die ‚Ehe für alle.” Last modified September 14, 2018; Beate Hausbichler, “Drittes Geschlecht: Der Anfang vom Ende des Zweigeschlechterfetischs,“ Der Standard, July 4, 2018. 56 “Homo-Ehe: SPÖ lehnte grünen Antrag ab, ” Der Standard, May 16, 2017, https://derstandard.at/2000057718416/Opposition-bleibt-geeint-misstrauisch. 57 Knill, “Die Katholische Kirche und Moralpolitik in Österreich,” 285. 58 “Mehrheit für Adoptionsrecht für homosexuelle Paare,” Tiroler Tageszeitung Online, February 24, 2013; Conrad Seidl, “Umfrage: Mehrheit will Ehe und Adoptionsrecht für Homosexuelle,” Der Standard, November 3, 2013. 59 Seidl, “Umfrage: Mehrheit will Ehe und Adoptionsrecht für Homosexuelle.” 60 “Umfrage: 74 % für Homo-Ehe,” OE24, Last modified September 23, 2018. 61 Jonas Vogt, “Dieser Mann hat die Ehe für alle (mit) möglich gemacht.” Vice, December 22, 2017. 62 “Schutzalter: Hosi sieht ‚VfGH-Skandalund schaltet Klestil ein,” Der Standard, July 2, 2002; Der Standard. “Hosi Wien auf ÖVP-Tour,” Der Standard, May 24, 2007. 63 Maja Nastić, “ECHR and National Constitutional Courts.” Zbornik Radova Pravnog Fakulteta U Nišu, no. 71 (2015): 203204 64 Comella, Constitutional Courts and Democratic Values, 141. 65 Nastić, “ECHR and National Constitutional Courts,” 207. 66 Ibid., 205. 67 Stone Sweet, “Comments on Michel Rosenfels’s ‘The Identity of the Constitutional Subject,’”1860. 68 Junko Nozawa, “Drawing the Line: Same-sex Adoption and the Jurisprudence of the ECtHR on the Application of the ‘European Consensus’ Standard under Article 14,” Utrecht Journal of International and European Law 29, no. 77 (2013): 70. 69 European Chamber, “Chamber Judgment in the Case of Karner v. Austria,” July 24, 2003. 70 Nozawa, “Drawing the Line,” 71. 71 Ibid., 72. 72 European Court of Human Rights, “Press release issued by the Registrar Chamber judgment 510 Schalk and Kopf v. Austria (application no. 30141/04),” June 21, 2010. 73 Nozawa, “Drawing the Line,” 71; Child Rights International Network (CRIN). “Gas and Dubois v. France.” Accessed December 4, 2018. 74 Masuma Shahid, “The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights,” Erasmus Law Review, no. 3 (2017): 184. 75 Claire Poppelwell-Scevak, “Same but Different: A heterosexual couple denied registered partnership by the ECtHR,” Strasbourg Observers, December 5, 2017. 76 “G 77/2018-9,” Verfassungsgerichtshof, June 15, 2018. 77 European Court of Human Rights, “Case of Christine Goodwin v. The United Kingdom (Application no. 28957/95),” July 11, 2002. 78 Peter Cannoot, “A.P., Garçon and Nicot v. France: the Court draws a line for trans rights,” Strasbourg Observers, May 5, 2017. 79 Vanessa Gaigg and Michael Simoner,“Verfassungsgerichtshof bestätigt Recht auf drittes Geschlecht,” Der Standard, June 29, 2018. 80 Stone Sweet, “Comments on Michel Rosenfels’s ‘The Identity of the Constitutional Subject,’” 1863. 81 Ibid., 1861. 82 Comella, “The European Model of Constitutional Review of Legislation,” 484.

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JHULR | The Silent Revolution Comella, Víctor. Constitutional Courts and Democratic Values: A European Perspective. New Haven; London: Yale University Press (2009). Corkin, Nicola C. Developments in Abstract Judicial Review in Austria, Italy and Germany. Birmingham: University of Birmingham (2010). Dahl, Robert. “Decision-Making in a Democracy: The Role of the Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279 (1957). Der Standard. “VfGH hebt Paragraf 209 auf.” June 25, 2002. https://derstandard.at/990942/VfGH-hebt-Paragraf-209-auf. Der Standard. “Schutzalter: Hosi sieht‚VfGH-Skandal‘ und schaltet Klestil ein.” July 2, 2002. https://derstandard. at/998755/Schutzalter-Hosi-sieht-VfGH-Skandal-und-schaltet-Klestil-ein. Der Standard. “Hosi Wien auf ÖVP-Tour.” May 24, 2007. https://derstandard.at/2787592/Hosi-Wien-auf-OeVP-Tour Der Standard. “Homo-Ehe: SPÖ lehnte grünen Antrag ab.“ May 16, 2017. https://derstandard.at/2000057718416/Opposition-bleibt-geeint-misstrauisch. Die Presse. “Homo-Ehe: Molterer stellt sich que(e)r. ” March 2, 2008. https://diepresse.com/home/politik/innenpolitik/373945/HomoEhe_Molterer-stellt-sich-queer. Ehs, Tamara.“Der VfGH als politischer Akteur. Konsequenzen eines Judikaturwandels.” Österreichische Zeitschrift für Politikwissenschaft 44, no. 2: 15 (2015). https://doi.org/10.15203/ozp.296.vol44iss2. Epstein, Lee, Segal, Jeffrey A. and Jennifer Nicoll Victor. 2002. “Dynamic Agenda-setting on the United States Supreme Court: An Empirical Assessment.” Harvard Journal on Legislation 39, no. 2 (2002):395-433. European Chamber. “Chamber Judgment in the Case of Karner v. Austria.” July 24, 2003. http://www.pict-pcti.org/news_archive/03/03jul/ECHR_072403.htm. European Chamber. “Case of Burden v. the United Kingdom.” April 29, 2008. http://ceere.eu/wp-content/uploads/2016/03/CASE-OF-BURDEN-v.-THE-UNITED-KINGDOM.pdf. European Court of Human Rights. “Case of Christine Goodwin v. The United Kingdom (Application no. 28957/95).” July 11, 2002. European Court of Human Rights. “Press release issued by the Registrar Chamber judgment 510 Schalk and Kopf v. Austria (application no. 30141/04).” June 21, 2010. Gaigg, Vanessa, and Michael Simoner. “Verfassungsgerichtshof bestätigt Recht auf drittes Geschlecht.” Der Standard, June 29, 2018. https://derstandard.at/2000082511550/Verfassungsgerichtshof-bestaetigt-Recht-auf-drittes-Geschlecht. Hausbichler, Beate.“Drittes Geschlecht: Der Anfang vom Ende des Zweigeschlechterfetischs.“ Der Standard, July 4, 2018. https://derstandard.at/2000082728649/Drittes-Geschlecht-Der-Anfang- vom-Ende-des-Zweitgeschlechterfetisch. Klarman, Michael. “Rethinking the Civil Rights and Civil Liberties Revolutions.” Virginia Law Review 82, no. 1: 1-67 (1996). Knill, Christoph, Caroline Preidel, and Kerstin Nebel. “Die Katholische Kirche und Moralpolitik in Österreich: Reformdynamiken in der Regulierung von Schwangerschaftsabbrüchen und der Anerkennung gleichgeschlechtlicher Partnerschaften.” Österreichische Zeitschrift Für Politikwissenschaft, no. 3 (2014).: 275-92 Kumm, Mattias. “The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law.” Indiana Journal of Global Legal Studies 20, no. 2 (2013): 605-28 Lagi, Sara. “Hans Kelsen and the Austrian Constitutional Court (1918-1929).” Co-Herencia 9, no. 16 (2012): 273-95. Laun, Andreas.“Wilhelm Molterer, die, Homo-Ehe‘ und der Zeitgeist.” Katholische Nachrichten, September 24, 2018. http://www.kath.net/news/20916. Leisner-Egensperger, Anna.“Das neue österreichische Eherecht – ein Regelungsmodell für Europa?” Journal für Rechspolitik 26 (2018): 66-75. McCann, Michael. In Gillman, Howard., and Cornell W. Clayton. The Supreme Court in American Politics: New Institutionalist Interpretations. Lawrence, Kan.: University Press of Kansas (1999). Mishler, William, and Reginald S. Sheehan. “The Supreme Court as a Countermajoritarian Institution – the Impact of Public Opinion on Supreme Court Decisions.” American Political Science Review 87, no. 1 (1993): 87-101. Nastić, Maja. “ECHR and National Constitutional Courts.” Zbornik Radova Pravnog Fakulteta U Nišu, no. 71 (2015): 203-20. Nozawa, Junko. “Drawing the Line: Same-sex Adoption and the Jurisprudence of the ECtHR on the Application of the ‘European Consensus’ Standard under Article 14.” Utrecht Journal of International and European Law 29, no. 77(2013): 66-75. OE24. “Umfrage: 74 % für Homo-Ehe.” Last modified September 23, 2018. https://www.oe24.at/oesterreich/politik/Umfrage-74-fuer-Homo-Ehe/349677457 OE24. “Mitterlehner für die Homo-Ehe.” January 19, 2015.http://www.oe24.at/oesterreich/politik/Mitterlehner-fuer-die-Homo-Ehe/173209160 Öhlinger, Theo. “The Genesis of the Austrian Model of Constitutional Review of Legislation.” Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law 16, no. 2 (2003).

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JHULR | The Silent Revolution ORF. “Adoptionsrecht für Homosexuelle ab Freitag.” Last modified December 30, 2015. https://wien.orf.at/news/stories/2750149/. Pink, Oliver.“Homosexuelle: ÖVP öffnet sich für das Standesamt. ” Die Presse, September 21, 2016. https://diepresse.com/ home/politik/innenpolitik/5089378/Homosexuelle_OeVP-oeffnet-sich-fuer-das-Standesamt Poppelwell-Scevak, Claire. “Same but Different: A heterosexual couple denied registered partnership by the ECtHR.” Strasbourg Observers, December 5, 2017. https://strasbourgobservers.com/2017/12/05/same-same-but-different-a-heterosexual- couple-denied-registered-partnership-by-the-ecthr/#more-4064. Rechtsinformationssystem. “G6/02.” June 21, 2002. https://www.ris.bka.gv.at/Dokumente/Vfgh JFR_09979379_02G00006_01/JFR_09979379_02G00006_01.pdf. Rechtsinformationssystem.“U466/11 ua.” March 14, 2012. https://www.ris.bka.gv.at/Dokumente/Vfgh/ JFT_09879686_11U00466_2_00/JFT_09879686_11U00466_2_00.pdf. Rechtsinformationssystem.“G119/2014 ua.” December 11, 2014. https://www.ris.bka.gv.at/Dokumente/Vfgh/ JFR_20141211_14G00119_01/JFR_20141211_14G00119_01.pdf. Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring about Social Change? 2nd ed. American Politics and Political Economy. Chicago: University of Chicago Press (2008). Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press (2002). Seidl, Conrad. “Umfrage: Mehrheit will Ehe und Adoptionsrecht für Homosexuelle.“ Der Standard, November 3, 2013. derstandard.at/1381370702708/Mehrheit-will-Ehe-und- Adoption-fuer-Homosexuelle. Shahid, Masuma. “The Right to Same-Sex Marriage: Assessing the European Court of Human Rights’ Consensus-Based Analysis in Recent Judgments Concerning Equal Marriage Rights.” Erasmus Law Review, no. 3: 184 (2017). Shapiro, Martin, Alec Stone, Susan Sterett, Donald Kommers, Mary Volcansek, Karen Alter, and Sophie Meunier-Aitsahalia. “The New Constitutional Politics of Europe.” Comparative Political Studies 26, no. 4 (1994): 397-561. Silverstein, Gordon. Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics. Cambridge (UK); New York: Cambridge University Press (2009). Smith, Miriam. “Social Movements and Judicial Empowerment: Courts, Public Policy, and Lesbian and Gay Organizing in Canada.” Politics & Society 33, no. 2 (2005): 327-53. Stone Sweet, Alec. “Judging Judicial Review: Marbury in the Modern Era: Why Europe Rejected American Judicial Review: And Why It May Not Matter.” Michigan Law Review 101 (2003): 2744-781. Stone Sweet, Alec. “Comments on Michel Rosenfels’s ‘The Identity of the Constitutional Subject’: The European Convention on Human Rights and National Constitutional Reordering.” Cardozo Law Review 33 (2012): 1859-2547. TAZ. “Österreichs Konservative im Denkprozess: Homoehe mit Zeremonie erwogen.” April 2, 2008. https://www.taz. de/!5184245/. The Local. “Austria declares ban on gay adoption illegal.” January 14, 2015. https://www.thelocal.at/20150114/austrialifts-ban-on-same-sex-adoption. Tiroler Tageszeitung Online.“Mehrheit für Adoptionsrecht für homosexuelle Paare.” February 24,2013. https://www.tt.com/ politik/weltpolitik/6182867/mehrheit-fuer-adoptionsrecht-fuer-homosexuellepaare. Verfassungsgerichtshof. “G 131/11-5.” Marc 3, 2012. https://www.vfgh.gv.at/downloads/VfGH_G_131-11_NamensaenderungsG_eingetragene_Partner.pdf. Verfassungsgerichtshof. “G 77/2018-9.” June 15, 2018. https://www.vfgh.gv.at/downloads/VfGH_Entscheidung_G_77- 2018_unbestimmtes_Geschlecht_anonym.pdf. Vogt, Jonas. “Dieser Mann hat die Ehe für alle (mit) möglich gemacht.” Vice, December 22, 2017. https://www.vice.com/ de_at/article/j5vpmb/dieser-mann-hat-die-ehe-fur-alle-mit-moglich-gemacht.

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How Legal Reasoning and Public Opinion about Abortion Developed from 1973 to Today Sarah Lentz Abstract When Roe v. Wade was decided in 1973, a national conversation around abortion, women’s rights, and prenatal life exploded. As “pro-choice” advocates saw abortion as necessary for women to have control over their bodies and lives, “pro-life” advocates saw abortion as murder, claiming life begins at conception. The Supreme Court’s ruling heavily contributed to this dichotomy as Justice Blackmun wrote a decision and based his reasoning on the medical viability of the fetus. This allowed the pro-life movement to form around moral and ethical arguments about the start of life. However, the Court could have taken a different route to grant the right to abortion and avoid such a polemic. This direction, led by Ruth Bader Ginsburg and the ACLU Women’s Rights Project, emphasized the right to abortion as an issue of gender equality, rather than an issue of religion, medicine, or philosophy. Yet, due to the absence of coordination between the ACLU and the litigation team in Roe v. Wade, the pro-abortion movement lacked a coherent strategy and solid legal foundation of precedent. Instead, the Court handed down a decision that stunted the growing public opinion around women’s rights and created a partisan and religious controversy that continues today, as seen in the appointment of Justice Kavanaugh to the Supreme Court and a wave of “heartbeat bills” passed in conservative states around the country.

T H E J O H N S H O P K I N S U N D E R G R A D U AT E L AW R E V I E W | S P R I N G 2 0 1 9 | V O L U M E 1

From Roe v.Wade to Kavanaugh’s Confirmation

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation

Introduction The Supreme Court of the United States handed down its decision on Roe v. Wade on January 22, 1973 and fundamentally changed the political landscape of America. The decision ruled that a Texas law and other laws similarly restricting access to abortions were unconstitutional, finally allowing women the freedom to seek an abortion without state interference. Immediately after the ruling, religious groups attacked the precedent on moral grounds, claiming that life starts at conception and any unnatural termination of a pregnancy was equivalent to murder. Beyond moral terms, some legal scholars have also taken issue with the reasoning in Roe and the seemingly arbitrary nature of its framework. Today, the anti-abortion movement remains, and there have been multiple legal cases that continue to chip away at the principles set out by Roe, including one that made its way to the Supreme Court in 1992: Planned Parenthood v. Casey. Current President Donald Trump has repeatedly disavowed the Roe precedent and nominated Justice Brett Kavanaugh with the hope that he could provide a conservative vote and make the Court finally overturn the decision. During the Senate confirmation hearings for then-Judge Kavanaugh, his conservative opinions and jurisprudence surrounding abortion were important consideration for pivotal votes, like those of Senator Collins of Maine and Senator Murkowski of Alaska. In the current political environment, much of the heated debate around abortion, especially within the anti-abortion faction, is rooted in the initial reasoning put forth in the Roe decision 45 years ago. In the formation of legal opinion and its reliance on medical viability as the basis for the right to abortion, the Court allowed fervent debate around the philosophical issue of the definition of life to continue in all spheres of public and private life. However, there was an alternative route that the Court could have taken to change the divisive discussion. The Court could have allowed public opinion to progress and let the legislature decide on the issue.

Formation of Legal Opinion The Supreme Court handed down the decision on Roe v. Wade in 1973. Justice Harry Blackmun, former resident counsel for the Mayo Clinic, was instrumental in bringing the case to the Court and penned the majority opinion. He was joined by six other justices, bringing the final decision to seven to two. Justice Blackmun struck down Texas’ argument that there was a compelling state interest to “recognize and protect prenatal life from and after conception” in accordance with the Fourteenth Amendment. He insisted that the Constitution only defines “citizens” as “persons born or naturalized in the United States” so the word “person,” as used in the Fourteen Amendment, does not refer to unborn.1 Instead, he argued that the right to abortion is ultimately found in the right to personal privacy, a right previously recognized by the Court. However, Blackmun clarifies, because pregnancy includes another potential life, this is not an unqualified right. Therefore, there is a point in the mother’s term where the states’ interest to protect that potential life becomes “sufficiently compelling to sustain regulation of the factors that govern the abortion decision,” and the protection of prenatal life becomes dominant.2

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation To define the point in the pregnancy where the prenatal life becomes a compelling interest, Justice Blackmun looked to other standards found in legal and medical settings. He cited common law in the thirteenth century, English statutory law, and American law, specifically in the nineteenth century. Many of the laws note “quickening,” the “first recognizable movement of the fetus in utero,” as a standard for when life begins and when abortions should be prohibited.3 Typically, abortions performed before the quickening were legal or treated leniently in a court of law. Blackmun also cited the American Public Health Association’s standards for abortion services adopted in 1970. These recommend that “rapid and simple abortion referral must be readily available through state and local public health departments, 4 medical societies, or other nonprofit organizations.” The standards further differentiate between abortions for pregnancies in the first trimester and later pregnancies, as “the factor of gestational age is of overriding importance.”5 From his research, Justice Blackmun laid out a framework based on trimesters and fetus viability to determine when abortions could be regulated by the state, due to compelling interests to protect the fetal life. He acknowledged that a state could not claim compelling interest to protect either the mother’s life or that of the fetus before the first trimester, citing the “now-established medical fact” that “until the end of the first trimester mortality in 6 abortion may be less than mortality in normal childbirth.” After the first trimester, the state can regulate abortions to the extent that regulation is related to the protection of the mother. Finally, the state can regulate abortion in the interest of the potential life as soon as it is viable. Justice Blackmun defined viability as the “capability of meaningful life outside the mother’s womb” and placed it at around seven months, or 28 weeks.7 After that point, states can ban abortion except in instances where the mother’s life is at risk. In his dissent, Justice William Rehnquist attacked Blackmun’s three-tier framework for abortion regulation, arguing that is was too broad for the specific case, as the plaintiff, Jane Roe, was not in her first trimester when she filed her case and therefore should not be the subject of the Court’s ruling. Further, Rehnquist purported that the strict trimester timeline was too legislative and not the place of the judiciary. These critiques have been echoed in legal and public discourse since Roe v. Wade was decided. Nineteen years later, Justice Blackmun’s framework was challenged again in the Supreme Court chambers in Planned Parenthood v. Casey. In 1992, the Supreme Court heard a case to determine whether the Pennsylvania Abortion Control Act of 1982 was unconstitutionally infringing on a woman’s right to an abortion. The Act required that a woman seeking an abortion give her informed consent prior to the abortion procedure, the woman be provided with certain information at least 24 hours before the abortion is performed, a minor get consent from a guardian or use a judicial bypass option, and a married woman notify her husband. The Court ultimately ruled in favor of all of the requirements, except the husband notification. The majority opinion applied stare decisis, the rule of precedent, and reaffirmed the essential holdings of Roe but changed its framework and added another test for determining whether or not abortion regulations were constitutional. Writing the majority opinion for Planned Parenthood v. Casey, Justice Sandra Day O’Connor upheld Justice Blackmun’s opinion based on the principles that a woman can choose to have 45

JHULR | From Roe v. Wade to Kavanaugh’s Confirmation an abortion within the first trimester without state interference, and that, before viability, the state cannot regulate on the basis of protecting prenatal life. Yet, Justice O’Connor disagreed with the strict trimester timeline laid out in Roe. She acknowledged that over the two decades that had passed between her decision and Justice Blackmun’s, medical progress had advanced and was able to establish a fetus’ viability earlier than the seven months suggested in Roe. Therefore, she thought that the general idea of viability, a fetus’s capability to survive outside the womb, rather than a strict timeline of 28 weeks, should be prioritized. Justice O’Connor claimed that this standard of viability, although somewhat arbitrary, “was a reasoned statement, elaborated with great care.”8 She believed that viability was the most workable framework and provided an element of fairness, as all women were aware of the timeline available to them to have an abortion without state interference.

The most essential aspect of the Roe decision, according to Justice O’Connor, was that a woman’s right to choose was not subordinated to the state’s interest in protecting fetal life. Therefore, she believed that the Court could amend the trimester framework laid out by Justice Blackmun while simultaneously upholding the decision. In its place, she offered a test of an undue burden to reconcile the “state’s interest with the woman’s constitutionally protected liberty.”9 She defined an undue burden as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”10 Therefore, with the exception of the husband notification, the Pennsylvania requirements were not undue burdens and instead increased the safety and transparency of the procedure for all involved. Since 1992, the Court has more recently used the “undue burden test” in Whole Woman’s Health v. Hellerstedt. This case, decided in 2016, considered a Texas law that placed a series of restrictions on abortion clinics. The law, known as HB2, required clinics to have admitting privileges at hospitals within 30 miles and to meet the same standards as ambulatory surgical centers, necessitating building upgrades and increased staffing.11 After the law took effect, the number of abortion clinics in the state dropped from 42 to nineteen.12 The Court saw the restrictions and the subsequent decrease in abortion clinics as an undue burden to women seeking an abortion and ruled Texas’ law unconstitutional. In her opinion for Whole Woman’s Health v. Hellerstedt, Justice O’Connor went further than merely tweaking Roe’s legal framework to instead consider undue burdens placed on the mother, rather than an arbitrary trimester timeline. She also discussed the moral debate around the issue of abortion in her opinion. She admitted that “abortion is a unique act… fraught with consequences for others” and how one views the issue is dependent on one’s belief for the life or potential life that is aborted.13 She likened the debate around abortion to that of school segregation. Therefore, like it did in Brown v. Board of Education, Justice O’Connor stated that the Court’s decision must call on “contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” The basis of the decision rooted in the medical definition of viability rather than the Constitution did not placate the public. This unsatisfactory answer to an unanswerable moral question opened the doors to a fervent debate that continues into political and cultural life today. 46

JHULR | From Roe v. Wade to Kavanaugh’s Confirmation

Formation of Public Opinion William Johnson, a journalist at the Washington Post, describes the decision in Roe v. Wade as a “Pandora’s Box” that opened a world of controversy and protest.15 As Johnson correctly observes, “the judgement of nine wise men has not brought repose to the national conscience.”16 The women’s liberation movement and women’s rights groups continued to push for the right to abortion as a facet of sexual and cultural liberation and equality. Their side of the abortion debate was coined the “pro-choice” faction, as they made abortion about a woman’s right to choose what to do with her body.

However, the anti-abortion faction found its roots in the legal opinion put forth by the Court, as well as their religious beliefs in the start and meaning of life. Immediately following the decision, opposition formed in religious groups who maintained that life started at conception. The movement adopted the term “pro-life” instead of “anti-abortion” to emphasize the belief that abortion was an issue of taking a human life, not one about denying a woman her rights.17 One of the most important pro-life organizations in the post-Roe era was the Moral Majority, founded in 1979 by Jerry Falwell, a pastor at a megachurch who delivered 18 sermons on a nationally syndicated television program. The Moral Majority was known as the “religious right wing” and opposed the ways they saw America changing. They fought for restoration of traditional values, such as prayer in schools and bible education, and against issues they believed tainted the morality of the nation, such as abortion and same-sex marriage. Due to their conservative social positions, Falwell and his followers in the religious right also supported conservative politicians, especially Ronald Reagan. They lobbied him for abortion restrictions, and on July 15, 1985, Reagan asked the Supreme Court to overrule Roe v. Wade as it was “particularly ill-founded.”19 Outside of the lobbying efforts of the Moral Majority, Falwell was a prominent and frequent voice for the pro-life cause. In a speech made in 1980 titled, “Listen America,” Falwell urged listeners to “reverse the trend American finds herself in today.”20 He goes on to paint a picture in which television is a child’s “primary babysitter…[where] they have learned situation ethics 21 and immorality – they have learned a loss of respect for life.” In another speech in 1981, he said that “when the Supreme Court by a seven to two vote legalized abortion on demand, they literally overruled the Almighty.”22 He referred again to the Roe v. Wade case, specifically, in a 1982 speech given to the City Club of Cleveland in which he referred to abortion as “open game on the unborn” and a “biological holocaust,” comparing it to World War II Germany and Adolf Hitler.23 One of the most influential and emblematic pieces of pro-life messaging was a 1984 film, The Silent Scream. The educational film shows an abortion through ultrasound imaging in which the fetus appears to be in pain. The message of the film is made clear with the opening

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation opening line: “Now we can discern the chilling silent scream on the face of this child who’s now facing imminent extinction.”24 The narrator, Bernard Nathanson, was an obstetrician and abortion provider turned pro-life activist. He explains the reasoning of his changed opinion as the result of “fetology,” the study of the fetus in the uterus, and technology, like the ultrasound, that disproves the previous notion that a fetus had no “unique, personal 25 qualities.” The film took aim at the viability reasoning of Justice Blackmun’s decision as it argues that a fetus is “living” far before the first trimester. Nathanson shows models of fetuses in different stages of in-utero development to prove that a “person” (instead of saying “fetus”) at twelve weeks is “a fully formed absolutely identifiable human being” and has brain 26 waves and heart functioning like any born human. The film goes on to show ultrasound footage of an abortion taking place where the viewer can see the fetus recoil from the medical instrument and freezes on a frame where the fetus’ mouth looks to be open, the eponymous “silent scream.” The film was heralded by pro-life groups and premiered on Jerry Falwell’s nationally syndicated program, but was met with criticism by the medical community for misrepresenting many aspects of the abortion process and fetal development. Dr. John Hobbins of Yale School of Medicine called out the film for speeding up the fetus’ reaction to the instrument in order to create the illusion that it was “thrashing in alarm” when in reality, “the fetus appears to be acting perfectly normal.”27 He claimed that the film distorted the size of the twelve-week-old fetus to make it look as large as a full-term baby. He also pointed to expert agreement that fetuses cannot move voluntarily nor be able to perceive danger, as the cerebral cortex is not yet developed. Finally, he discredited the “scream” as nothing more 28 than a result of the fact that fetuses spend lots of time with their mouths open.

While the credibility of the film has been challenged, it nonetheless converted many people to the pro-life cause as it successfully shifted the narrative from protection of women’s rights to the protection of fetal life. Beyond anti-abortion rhetoric and messaging, there were many physical protests, including some that turned violent. In 1984, fires or explosions damaged at least nineteen abortion centers in Washington D.C., and more than 150 other incidents occurred at family-planning across the country.29 In August of 1985, a Lutheran leader was sentenced to ten years in prison for bombing ten abortion clinics in the Washington area.30 Harassment of clinic patrons and employees is also commonly used as a fear tactic. Anti-abortion violence has even gone to the worst extreme of murder. There are seven reported murders of abortion doctors or abortion clinic staff since the 1973 decision.31 Recently, Dr. George Tiller, an abortion doctor, was shot and killed in 2009, and, in 2015, a shooting at a Planned Parenthood in Colorado killed three people. The shooter in that crime referred to himself as a “warrior for the babies.”32

Today, in the period after Planned Parent Hood v. Casey, the abortion debate still rages, despite the fact that the controversial trimester framework is no longer the opinion of the Court.

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation Pro-life advocates continue to frame the debate as one of morality, believing life begins at conception. In 2004, President Bush applauded pro-life demonstrators and encouraged them to “change hearts” to fight for an America where “every child is welcomed…in life and 33 protected in law.” Every January, marking the anniversary of the Roe v. Wade decision, there is a March for Life rally with the stated mission to “end abortion by uniting, educating, and mobilizing pro-life people in the public square.”34 Thousands of pro-life protestors of all ages gather each year in Washington to vocalize their opposition to the Court’s ruling. Why does the issue of abortion continue to evoke such passionate responses from both sides? James Dobson, leader of the conservative organization, Focus on the Family, has called abortion “the most significant moral issue of our time.”35 To pro-life advocates, abortion is murder, and the decision in Roe v. Wade is as horrible as infamously mistaken Court decisions, such as Dred Scott v. Sanford and Plessy v. Ferguson. While the issue of terminating a pregnancy would have always been fraught with moral arguments, the Supreme Court could have used alternative legal reasoning in Roe to avoid such national controversy.

Alternative Rationale and Implications for the Abortion Debate As shown, the Court’s reliance on the imprecise medical standard of fetal viability perpetuated the ability for opposing groups to argue over the definition of a viable life. However, there was another direction the Court could have taken, which would have grounded the right to abortion more clearly in the Constitution, and therefore created less debate. Justice Ruth Bader Ginsburg, sworn onto the Court one year after O’Connor handed down the opinion in Planned Parenthood v. Casey, is a surprising opponent to the Roe precedent’s basis on viability. Before she was a Supreme Court justice, Ginsburg founded the ACLU Women’s Rights Project in 1972 and led grassroots efforts to fight for women’s rights, including abortion. This project was “based on the concept that sexual equality would be most effectively realized by systematic litigation in the courts that redressed discrimination against women.”36 Justice Ginsburg laments that Roe was brought separately from her project and that the decision “seemed to have stopped the momentum” of the public opinion wave forming in favor of not only abortion but all women’s rights.37 Although there was evidence of growing support on the state and local level “toward liberalization of abortion statutes,” the Court’s decision “invited no dialogue with legislators.”38 Yet, Ginsburg makes clear that, while she opposes some parts of the Roe decision and the lack of legislative input, it is not the case that the Court should never “step ahead of the political branches in pursuit of a constitutional precept.”39 She cites Brown v. Board of Education as a good example of judicial activism, but emphasizes the extensive legal groundwork and “careful stepping stones” put in place before the landmark decision, which Roe v. Wade and the abortion issue did not have. These cases include Sipuel v. Board of Regents of the Univ. of Oklahoma (1948); Shelley v. Kraemer (1948); Sweatt v. Painter (1950); and McLaurin v. Oklahoma St. Regents for Higher Educ. (1950).

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation

In Justice Ginsburg’s opinion, Justice Blackmun and the majority missed an opportunity to frame the issue of abortion in a way that “affirms the dignity and equality of women” and further builds the necessary legal framework as seen in Brown.41 She proposes another course the abortion movement and the Court could have taken to establish pro-women precedent and further encourage the development of favorable public opinion. In the same term that Roe was decided, the Court had another case that Justice Ginsburg and the ACLU Women’s Rights Project were working on, and that Justice Ginsburg thinks could have served as a “bridge, linking reproductive choice to disadvantageous treatment of women on the basis of their sex.”42 In the case Struck v. Secretary of Defense, a female Captain in the Air Force became pregnant while stationed in Vietnam. She was then discharged due to an Air Force rule that states any woman officer be discharged from service once a medical officer declares that she is pregnant. Struck argued that the rule violated her Fifth Amendment right since the Air Force allowed men who became fathers to remain on duty, but not women who became mothers. While lower courts rejected her pleas, the Air Force backed down and granted her a waiver when the Supreme Court granted her petition for certiorari. This allowed her to continue her service as an officer, and the case was rendered moot. Justice Ginsburg sees this case as noteworthy in many ways. First, the Air Force did permit abortions before 20 weeks that would have allowed Struck to continue her service unobstructed. However, due to her religious faith, Struck was precluded from seeking abortion as a course of action. Instead, she placed the baby up for adoption immediately after giving birth. Second, the regulation that required discharge was blatant discrimination based on sex. Struck’s case came before the Court in a time when the legal developments were leaning in favor of unconstitutional sex discrimination. In 1973, for example, the Court ruled that married women in the military were entitled to the housing allowance and family medical care benefits that Congress had provided solely for married men.43 Justice Ginsburg admits that she wishes Struck had been the first case as she thinks the Court, and the public, would have better understood the issues at stake. Since Struck decided against an abortion and went through with the pregnancy, her case would have avoided the religious and moral condemnations of taking a life.

Instead, it would have better framed the issue of abortion as one of many examples of discrimination against women—the decision to get an abortion is solely a woman’s choice that no man will ever have to make. While this case would not have immediately answered the question of the legality of abortion, Justice Ginsburg and proponents believed it would have continued to bolster public opinion around women’s rights and would have led the way for state legislatures to have more progressive abortion laws.

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation Legal scholars are split in their opinions on Justice Ginsburg’s equal protection strategy for women’s rights. In an aptly titled article, “Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation,” Priscilla Smith agrees with Ginsburg’s efforts to change the basis of the reasoning around abortion and other women’s rights since “any restriction found to promote sex stereotyping will fail constitutional equality guarantees.”44 Smith argues that an equal protection framework will allow judges to put abortion restrictions in their proper historical context, and evaluate them as a form of “caste-enforcing” regulation to “reinforce women’s 45 subordination.” However, other scholars disagree with the assumption that, without Roe v. Wade, states would have continued to modify their own abortion restrictions and avoided the national controversy around the issue. Scholar Rosemary Nossiff argues that this optimistic belief goes against the facts of the abortion reform movement. While some states, like New York, may have had more liberal regulations, many other states, like Pennsylvania, were in the process of making their existing abortion statutes more restrictive.

Had it not been for Roe’s nation-wide application of a woman’s constitutional right to obtain an abortion, “most women would not have been eligible…and their ability to pursue their lives on an equal footing with men would have continued to be hampered.”46 Regardless of the merits on all sides of the legal arguments, the development of the abortion debate in national discussion shows what can happen when grassroots organizing and litigation strategies do not work in tandem. As Justice Ginsburg points out, public opinion was slowly mobilizing around women’s rights, and her team tried to gradually shift that progress to other women’s rights issues. However, the litigators in Roe v. Wade took a different approach and argued for the right to abortion in another way. Without a systematic building of legal framework around a coherent message, the pro-abortion movement lost its ability to control the framing of the issue, and, with it, lost the ability to control the national discourse.

Conclusion: Public Controversy, Past and Present Although Justice O’Connor had hoped for a decision to act as a “constitutional mandate” to end a national controversy, like in Brown v. Board of Education, the case of Roe v. Wade and the debate over abortion proved fundamentally different. Even Justice Blackmun himself admitted that abortion is a philosophical debate about when life begins and, even those “trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus.” However, despite his own warning, he continued to set a precedent that was rooted in an unclear constitutional right to privacy and an even more unclear standard of viable life and trimester timeline. Almost two decades later, the Court returned to the question and, while changing some aspects of the original decision, upheld the essence of the Roe decision, which included an emphasis on viability as the barrier between legal and not. By introducing and perpetuating this reasoning based on the existence of life, the Court allowed public debate and opposition to explode, split on moral lines.

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation Today, the right to abortion is still disputed in state legislatures and possibly even on the federal level. For example, in April 2019, Ohio lawmakers passed a so-called “heartbeat bill” which prohibits abortions as early as six weeks.48 The term “heartbeat bill” refers to its restriction of abortion once, supposedly, a fetus’ heartbeat is detected. In Mississippi, Governor Phil Bryant signed into a law a bill that banned abortions after fifteen weeks, although it was struck down by a judge claiming it defies Supreme Court precedent. That precedent’s future is more unclear now than it has ever been since its decision over 40 years ago. With the recent Supreme Court appointment of Justice Brett Kavanaugh, pro-life advocatess hope that his conservative tilt to the Court’s balance may greatly decrease the scope of Roe and the “undue burden” test, if not completely overturn the landmark case. Regardless of the Court’s future, the “Pandora’s box” around abortion has already been opened, and the public controversy over the issue will continue to rage for years to come.

Sarah Lentz is a senior at the University of Pennsylvania, where she studies Political Science with a concentration in American Politics and a minor in French. She embarked on the research for this paper for a class examining the confluence of law and society. Sarah will be working at the University of Pennsylvania next year with the Program on Opinion Research and Election Studies, doing data analytics and survey research for the upcoming 2020 Presidential Election.

Notes 1

Roe v. Wade, 410 U.S. 113 (1973), 29. Ibid., 28. 3 Ibid., 19. 4 Ibid., 24. 5 Ibid. 6 Ibid., 30-31. 7 Ibid, 31. 8 Planned Parenthood v. Casey, 505 U.S. 833 (1992), 32. 9 Ibid., 34. 10 Ibid., 35. 11 Whole Woman’s Health v. Hellerstedt, 579 U.S. (2016). 12 Lindsey Cook and Kimberly Leonard, “Explaining the Whole Woman’s Health v. Hellerstedt Abortion Case,” U.S. News, Jan. 11, 2016. 13 Planned Parenthood v. Casey, 505 U.S. 833 (1992), 24-25. 14 Ibid., 31. 15 William Johnson, “The Push to the Right: Abortion controversy politicizes churches,” Globe & Mail (Toronto, Canada), Sept. 3, 1985. 16 Ibid. 17 Jeffrey D. Schultz and Laura A. Van Assendelft, “Encyclopedia of Women in American Politics” (Phoenix, Ariz.: Oryx Press, 1999), 195. 2

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Daniel Williams, “Jerry Falwell’s Sunbelt Politics: The Regional Origins of the Moral Majority.” Journal of Policy History 22, no. 2 (2010): 126. 19 Ted Gest and Jeannye Thornton, “Battle Over Abortion Gets Hot Again,” U.S. News & World Report, Jul. 29, 1985. 20 Jerry Falwell, “Listen America,” (speech, New York, 1980). 21 Ibid. 22 Bettina Gregory, “World News Tonight,” ABC News, ABC, Jan. 22, 1981. 23 Jerry Falwell, (speech, City Club of Cleveland, Cleveland, OH, March 26, 1982). 24 The Silent Scream, directed by Jack Duane Dabner (1984; American Portrait Films). 25 Ibid. 26 Ibid. 27 Claudia Wallis, “Silent Scream,” Time (New York, NY) Mar. 25, 1985. 28 Ibid. 29 James Barron, “Violence Increases Against Abortion Clinics in ’84,” New York Times (New York, NY) Nov. 5, 1984. 30 Johnson 1985. 31 Alesha Doan, Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment (Ann Arbor: University of Michigan, 2007), 23. 32 Laura Wagner, “Accused Planned Parenthood Shooter: ‘I’m A Warrior For The Babies,” NPR, Dec. 5, 2015. 33 David Kirkpatrick, “Bush Praises Anti-Abortion Rally,” New York Times (New York, NY), Jan. 25, 2005. 34 “About the March For Life,” March For Life. 35 David Von Drehle, “O’Connor Used Vote to Entrench Right to Abortion; Issue Rouses Partisans on Both Sides, But Legal Reversal Is Seen as Unlikely,” The Washington Post (Washington D.C.), Jul. 2, 2005. 36 Amy Leigh Campbell, “Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project,” Texas Journal of Women and the Law 11, no. 2 (2002): 166. 37 Allen Pusey, “Ginsburg: Court should have avoided broad-based decision in Roe v. Wade,” ABA Journal, May 13, 2013. 38 Ruth Bader Ginsburg, “Speaking in a Judicial Voice,” New York Law Review 67, no. 8 (1992): 1205. 39 Ibid., 1206. 40 Ibid., 1207. 41 Ibid., 1209. 42 Ibid., 1200. 43 Ibid., 1203. 44 Priscilla Smith, “Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation,” Harvard Journal of Law & Gender 34, no. 2 (2011): 412. 45 Ibid., 408. 46 Rosemary Nossiff, “Why Justice Ginsburg is wrong about states expanding abortion rights,” Political Science & Politics 27, no. 2 (1994): 230. 47 Roe v. Wade, 410 U.S. 113 (1973), 30. 48 Jessie Balmert, “Ohio’s heartbeat bill gains momentum nationally as the abortion ban to upend Roe v. Wade. Here’s how it started,” Cincinnati Enquirer, April, 10, 2019.

Bibliography “About the March For Life.” March For Life. http://marchforlife.org/about-us/. Balmert, Jessie. “Ohio’s heartbeat bill gains momentum nationally as the abortion ban to upend Roe v. Wade. Here’s how it started.” Cincinnati Enquirer, Apr. 10, 2019. https://www.cincinnati.com/story/news/politics/2019/04/10/heartbeat-billabortion-ban-ohio-gains-national-momentum/3399625002/ Barron, James. “Violence Increases Against Abortion Clinics in ’84.” New York Times (New York, NY) Nov. 5, 1984. Campbell, Amy Leigh. “Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project.” Texas Journal of Women and the Law 11, no. 2 (2002): 157-209. Cook, Lindsey and Kimberly Leonard. “Explaining the Whole Woman’s Health v. Hellerstedt Abortion Case,” U.S. News, Jan. 11, 2016. https://www.usnews.com/news/blogs/data-mine/2016/01/11/supreme-court-and-abortion-why-whole-womans-health-v-hellerstedt-matters. Doan, Alesha. Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment. Ann Arbor: University of Michigan, 2007. Falwell, Jerry. “Listen America” Speech given in New York, 1980. Falwell, Jerry. Speech given to the City Club of Cleveland, Cleveland, OH, March 1982. Gest, Ted and Jeannye Thornton. “Battle Over Abortion Gets Hot Again.” U.S. News & World Report, July 29, 1985. ­ Ginsburg, Ruth Bader. “Speaking in a Judicial Voice.” New York Law Review 67, no. 8 (1992): 1185-1209.

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JHULR | From Roe v. Wade to Kavanaugh’s Confirmation Greenhouse, Linda. Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. New York: Times Books, 2005. Gregory, Bettina. World News Tonight, ABC News, ABC, January 22, 1981. Johnson, William. “The Push to the Right: Abortion controversy politicizes churches.” Globe & Mail (Toronto, Canada), September 3, 1985. Kirkpatrick, David. “Bush Praises Anti-Abortion Rally.” New York Times (New York, NY), Jan. 25, 2005. Nossiff, Rosemary. “Why Justice Ginsburg is wrong about states expanding abortion rights.” Political Science & Politics 27, no. 2 (1994): 227-231. Planned Parenthood v. Casey, 505 U.S. 833 (1992). Pusey, Allen. “Ginsburg: Court should have avoided broad-based decision in Roe v. Wade.” ABA Journal, May 13, 2013. http://www.abajournal.com/news/article/ginsburg_expands_on_her_disenchantment_with_roe_v._wade_legacy/. Roe v. Wade, 410 U.S. 113 (1973). Schultz, Jeffrey D., and Laura A Van Assendelft. Encyclopedia of Women In American Politics. Phoenix: Oryx Press, 1999. Smith, Priscilla. “Give Justice Ginsburg What She Wants: Using Sex Equality Arguments to Demand Examination of the Legitimacy of State Interests in Abortion Regulation.” Harvard Journal of Law & Gender 34, no. 2 (2011): 377-412. The Silent Scream. Directed by Jack Duane Dabner. 1984; American Portrait Films. Wagner, Laura. “Accused Planned Parenthood Shooter: ‘I’m A Warrior For The Babies.” NPR, Dec. 5, 2015. https://www.npr. org/sections/thetwo-way/2015/12/09/459116186/planned-parenthood-shooter-im-a-warrior-for-the-babies. Wallis, Claudia. “Silent Scream.” Time (New York, NY) March 25, 1985. Whole Woman’s Health v. Hellerstedt, 579 U.S. (2016). Williams, Daniel. “Jerry Falwell’s Sunbelt Politics: The Regional Origins of the Moral Majority.” Journal of Policy History 22, no. 2 (2010): 125-147. Von Drehle, David. “O’Connor Used Vote to Entrench Right to Abortion; Issue Rouses Partisans on Both Sides, But Legal Reversal Is Seen as Unlikely.” The Washington Post (Washington D.C.), Jul. 2, 2005.

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Chief Justice Roberts’ Opinion in National Federation of Independent Business v. Sebelius Lauren Andrews Abstract The Affordable Care Act, which was enacted in March of 2010, was the subject of intense opposition, and prompted the 2012 Supreme Court case National Federation of Independent Business v. Sebelius (NFIB). In NFIB, Chief Justice John Roberts, a Bush nominee perceived as conservative, shocked Supreme Court watchers by upholding the Affordable Care Act. Thus, his decision making in NFIB presents an opportunity to test the validity of a potential explanation of his judicial behavior: the strategic model. This paper will briefly discuss the strategic model, then discuss the political and ideological position of Roberts, and then analyze each element of the strategic model relative to his opinion in NFIB. Ultimately, the strategic model explains Roberts’ decision making in NFIB because his decision making exemplified his non-parametric goals (consensus, Court legitimacy and judicial restraint), strategic action, and the influence of institutional constraints, which form the three elements of the strategic model.

T H E J O H N S H O P K I N S U N D E R G R A D U AT E L AW R E V I E W | S P R I N G 2 0 1 9 | V O L U M E 1

A Test of the Strategic Model

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JHULR | A Test of the Strategic Model

Introduction The Affordable Care Act, a federal statute enacted in March of 2010, provided insurance to more than 20 million previously uninsured Americans by expanding Medicaid eligibility and overhauling the consumer-employer healthcare mandate.1 The Act blocked insurance companies from denying applicants due to sex or pre-existing conditions.2 The individual mandate minimum coverage provision also required individuals to purchase insurance or face a tax penalty. Following the passage of the Affordable Care Act, numerous public interest groups, including conservative advocacy groups, Republican legislators, and labor unions spoke out against the act, citing concerns of excessive spending and taxing, and that the individual mandate violated individual liberties.3 This controversy culminated in the 2012 Supreme Court case National Federation of Independent Business v. Sebelius (NFIB). In NFIB, Chief Justice John Roberts, a Bush nominee perceived as conservative, shocked Supreme Court watchers by upholding the 4 Affordable Care Act. Thus, his decision making in NFIB presents an opportunity to test the validity of a potential explanation of his judicial behavior: the strategic model. This paper will briefly discuss the strategic model, the political and ideological position of Roberts, and each element of the strategic model relative to his opinion in NFIB. Ultimately, the strategic model does explain Roberts’ decision making in NFIB, because his opinion in NFIB exemplified his non-parametric goals (consensus, Court legitimacy and judicial restraint), strategic action and the influence of institutional constraints (the Legislative and Executive branches, fellow Supreme Court Justices, and the American people), which form the three elements of the strategic model.

The Strategic Model Prior to evaluating the strategic model using Roberts’ decision making in NFIB, it is necessary to briefly outline the model itself. This explanation of judicial behavior conceptualizes judges as forward-thinking, discretion-wielding policymakers, rather than 5 neutral, formulaic interpreters of law. In contrast with its sister theory, attitudinalism, the strategic model theorizes that judges base their decision making on more than solely their ideological preferences.6 The strategic model argues that while judges have personal ideological goals, they are constrained by external factors and must strategize to reach their ideal policy outcome.7 By encompassing and analyzing many components of judicial decision making, the strategic model has emerged as the preeminent model, and thus is the basis for the argument of this article. This paper will focus on the three main elements of the strategic model. First, it will examine Roberts’ the non-parametric goals, which are defined as any objectives that judges pursue external to their own ideological policy preferences. For example, justices might seek to promote the legitimacy and prestige of the Court or try to maintain harmonious relations with colleagues.8 Secondally, it will evaluate Roberts’ actions against the strategic

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JHULR | A Test of the Strategic Model maneuvering that gives the strategic model its name.9 For example, when the Court is concerned about legislative reversal, strategic model scholars argue members of the Court often moderate their preferences to maximize their utility given the constraints imposed by 10 Congress. Finally, this paper will focus on the institutional constraints to which Roberts was subject, including the preferences of other panel members, other branches of the government, and the American people.11 While not all elements of the strategic model ultimately explain the behavior of Roberts in NFIB, the model’s analysis of many factors that affect judicial decision making mean that it is a good starting place to examine his actions in NFIB.

Chief Justice John Roberts’ Political and Ideological Position In order to test the strategic model using Chief Justice Roberts’ decision in NFIB, it is first necessary to outline Roberts’ political and ideological preferences. This paper will examine Roberts’ relevant positions prior to his appointment to the Supreme Court, then his personal life and political affiliations and, finally, his noteworthy jurisprudential beliefs. Roberts, from the beginning of his legal career, associated himself with other conservative lawyers. Prior to his nomination to be the seventeenth Chief Justice of the Supreme Court, Roberts attended Harvard College, then Harvard Law School.12 Roberts first clerked for Judge Henry Friendly, a Circuit Judge for the Second Circuit, then Judge Friendly’s close friend, then-Associate Justice William Rehnquist.13 As a conservative clerk for a conservative Justice, Roberts likely stood out on the liberal Warren Court.14 His clerkship with Judge Friendly proved to be influential; as a D.C. Circuit judge, Roberts cited Friendly’s opinions and articles in six of his forty-nine opinions.15 Additionally, this clerkship came at a controversial time for the Court due the recent release of The Brethren, a tell-all behind-the-scenes account of the Supreme Court, which was critical of Chief Justice Burger and the Supreme Court as an institution.16 Although, in a letter to Judge Friendly describing his Rehnquist clerkship, Roberts noted “the rumors of personal animosity and pettiness circulating in the wake of The Brethren do not seem to have any substance,” the controversy may have motivated his later emphasis on consensus-building.17 While Roberts held a number of private and public sector positions prior to his nomination to the D.C. Circuit, they were not as formative to his political and ideological positioning and will not be discussed here. Roberts’ conservative ties were likely instrumental to his confirmation as a Judge on the District of Columbia Circuit Court, and later as a Justice on the Supreme Court. Due to Democrat control of the Senate, Roberts had to be nominated to the District of Columbia Circuit Court of Appeals three times (once by George H.W. Bush, and twice by George W. Bush) before he was confirmed.18 This difficult confirmation process likely prompted his later disavowal of confirmation partisanship, when he said, at a New England Law event, that Supreme Court Justices, “don’t work as Democrats or Republicans,” and that the public might get that “very unfortunate perception” from the confirmation process.19 Roberts only sat on the D.C. Circuit Court for two years before President George W. Bush nominated him to the Supreme Court. The Republican-controlled Senate confirmed Roberts 78 to 22 on

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JHULR | A Test of the Strategic Model September 29, 2005.20 Bush’s nomination of Roberts was likely motivated in part due to Roberts’ close ties to the Republican party. During his time in private practice, Roberts traveled to Florida to provide legal advice to Governor Jeb Bush (George Bush’s brother) in 21 the ballot recount of the contested 2000 Bush v. Gore presidential election. Additionally, he gave 1,000 dollars to Bush’s campaign, and has given about 2,700 dollars to various Republican candidates over the years.22 In addition to his involvement in the Reagan Justice Department and White House, he noted in his Senate Confirmation Questionnaire that he was a member of the Republican National Lawyers Association from 1991 to 1994.23 Roberts’ personal support for Republican politicians reflects his conservative ideology. In both confirmation hearings, Roberts discussed his conservative judicial philosophies and personal ideologies. In his Supreme Court confirmation hearing, then-Judge Roberts said that he did not “have an all-encompassing approach” to interpreting the Constitution and that he would not follow a particular school of interpretation, but would rather employ the approach 24 best suited for each particular case.

As a result, he is distinguished from his conservative colleagues on the Court by his “colorful yet untraditional” judicial philosophy, coupled with his emphasis on the authority of tradition and precedent.25 However, Roberts can still be classified as a conservative justice due to his belief in judicial restraint. He famously analogized judges to umpires in his confirmation hearing, saying that, “umpires don’t make the rules, they apply them… it is a limited role.”26 This “neutral” or “objective” mode of judicial decision making was addressed fifty different times during his four days of testimony.27 As a result, the Roberts Court has invalidated federal statutes and overturned precedents at lower rates than the Rehnquist, Burger and Warren Courts.28 Yet, Roberts does value federalism. In a 1999 radio interview, prior to his first nomination to the D.C. Circuit Court, he challenged the Violence Against Women Act, and argued that due to differing conditions in different states, state laws should be more relevant than federal laws.29 Later, in his Supreme Court confirmation hearings, he argued federalism was “part of the 30 genius of the Founding Fathers.” Finally, his confirmation hearing testimony on Roe v. Wade and the right to privacy also demonstrates his deference to precedent. Roberts called Roe “the settled law of the land,” and said that there is nothing that would prevent him from “fully and faithfully applying” its precedent.31 Additionally, he notes that the right to privacy is constitutionally protected via the First and Fourth Amendments and protected under the Fourteenth Amendment’s Due Process Clause through “a series of decisions going back 80 years.”32

NFIB: A Test of the Strategic Model Having discussed Justice Roberts’ political and ideological position, this article will now examine his decision relative to the three major elements of the strategic model; it will analyze Roberts’ non-parametric goals, his strategic decision making in NFIB, and finally, the institutional constraints he faced. 60

JHULR | A Test of the Strategic Model I. Roberts’ Non-Parametric Goals Justice Roberts’ non-parametric goals, which are shaped by his role as the Chief Justice, are consensus-building; a maintenance of Court legitimacy through avoiding of the appearance of partisanship; and judicial restraint. First, Roberts seeks consensus by eliminating concurring opinions and articulating narrow decisions. In his confirmation hearing, Roberts said that the Chief Justice has a “particular obligation to achieve consensus,” but noted that consensus 33 must be weighed against each Associate Justices’ “strongly held views.” He argues that in the instance of concurring opinions, the concurring justices ought to look to the majority to determine if any concessions or modifications would enable them sign the opinion.34 Additionally, he stated both in his confirmation hearing testimony and a 2006 Georgetown Law School commencement speech that he seeks unanimity because it provides “clarity and guidance” for lawyers and lower courts trying to “figure out what the Supreme Court meant.”35 In the commencement speech, he told graduates he achieves “broader agreement among the justices” through “the narrowest possible grounds,” a method he 36 stated in his confirmation hearing that he learned from then-Associate Justice Rehnquist. Additionally, in a 2018 speech at the University of Minnesota, Roberts stated, “courts get in trouble when they try to sweep more broad than necessary.”37 Roberts has testified numerous times to his prioritization of consensus via eliminating concurring opinions and articulating narrow decisions. There is concrete evidence of his pursuit of this goal; as of 2013, Roberts has never written a solo dissent.38 Despite this track record, Roberts notably did not achieve consensus in NFIB. The Court splintered into many opinions, perhaps in part due to the complexity and number of the issues before the Court.39 First, on the issue of the constitutionality of the Medicaid expansion, Roberts could not rally the Court around even a majority opinion, and instead wrote a plurality opinion joined by Justices Breyer and Kagan. Additionally, the conservative bloc’s (Scalia, Kennedy, Thomas, and Alito) joint dissent agreed with the majority (Roberts, Breyer and Kagan), but dissented concerning the labeling of the Affordable Care Act’s individual mandate as a tax or a penalty, respectively. Similarly, while Roberts and the conservative bloc all held that the individual mandate was outside of Congress’ powers under the Commerce and Necessary and Proper Clauses, Roberts was not able to get them to sign the same opinion as him and wrote alone. Justice Thomas dissented due to the use of a single precedent. This does not reflect the careful negotiation and modification to achieve consensus Roberts aspired to in his confirmation hearing testimony. Roberts’ second non-parametric goal is the maintenance of Supreme Court legitimacy through the avoidance of partisanship. In a 2016 speech, Roberts stated that the “partisan rancor” of Congress “impedes their ability to carry out their functions.” He hoped, “I don’t want this to spill over and affect [the Supreme Court].”40 However, perhaps contradictory to his end goal, Roberts defended the judiciary against President Trump, who criticized a District Court judge as “an Obama judge” for his anti-Trump ruling immigration ruling. Roberts said, “we do not have Obama judges or Trump judges,” and that the “independent judiciary is something we should all be thankful for.”41 Roberts has frequently sought to maintain Supreme Court legitimacy by avoiding ideological decision-making in partisan or political cases, including in NFIB. 61

JHULR | A Test of the Strategic Model While Roberts may have personally opposed the Affordable Care Act, he made an extralegal, political calculation in NFIB uphold the Act due to his fear of damage to the Court’s reputation.42 Other than perhaps Bush v. Gore, NFIB was the most contentious case to appear before the Court in recent history, as Republicans spent two years attempting to overturn the Affordable Care Act before NFIB came before the Court.43 Roberts’ concerns about a loss of Court legitimacy were likely magnified due to the looming 2012 presidential election. If candidates disagreed with the Court’s decision in NFIB, it could become the subject of campaigns and debates, hurting the appearance of an independent judiciary.44 Roberts’ wariness is reflected in his opinion, which contains defensive phrasing. For example, Roberts assured readers that he was aware legislative power “rests with those chosen by the people,” and not the judiciary.45

As a result, Roberts weighed his concerns for Court legitimacy over consensus, and sided against his fellow conservative justices’ attempt to declare the mandate non-severable from the rest of the statute, which would have rendered the entire Act unconstitutional.46 If the conservative bloc declared the entire Affordable Care Act invalid due to one provision, Roberts likely feared the other branches and the American people would perceive this as a 47 “partisan wrecking mission” motivated out of ideology, and not law. Thus, Roberts upheld the Act to protect Court legitimacy, despite his likely ideological opposition to it. Chief Justice Roberts’ final non-parametric goal was his respect for precedent, motivated out of his belief in judicial restraint. Roberts’ decision in NFIB exemplifies judicial restraint for two reasons. Not only did Roberts refrain from completely striking down a federal law he was likely ideologically opposed to, his analysis on the Commerce Clause reflects the Court’s past decisions.48 Previously, the Court has been more aggressive in limiting the Commerce Clause when there were minimal policy consequences.49 For instance, United States v. Morrison struck down a portion of the Violence Against Women Act that was redundant with 50 state laws.

Overturning the Affordable Care Act would have major policy consequences, because it was a cornerstone policy of President Obama’s first term. If Roberts were to overturn the Act in its entirety, he would have deviated from the Court’s previously restrained approach to the Commerce Clause. However, it should be noted that he was willing to strike down some of the law, as he ruled the Medicaid expansion’s use of conditions to federal aid was unconstitutionally “coercive.”51 Even this seemingly activist move was an example of Roberts’ non-parametric goals. Here, Roberts employed the often-used four prong test established by South Dakota v. Dole, which examines if Congress’ conditions for states to receive federal funding are constitutional.52 By invalidating the Act’s Medicaid expansion using the Dole test, Roberts showed his respect for precedent.

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JHULR | A Test of the Strategic Model Ultimately, Roberts’ behavior in NFIB partially demonstrates his non-parametric goals, which make up the first element of the strategic model. His first non-parametric goal, consensus, is verifiably demonstrated, as Roberts testified on numerous occasions his emphasis on judicial agreement. However, it is similarly clear from the opinion, concurrence, and dissent that Roberts was not able to achieve consensus in NFIB. Of course, this may have been due to external factors, such as the number of NFIB’s issues, or the ideological positions of his colleagues. Secondly, Roberts’ commentary shows his prioritization of Court legitimacy. However, unlike consensus-building, Roberts’ behavior in NFIB demonstrates this non-parametric goal. Because the Act was so political and partisan, Roberts put aside his likely ideological opposition to the legislation, and upheld it, to protect the Court from the political fallout of an activist ruling in the election year. Finally, Roberts’ decision in NFIB partially exemplifies his non-parametric goal of judicial restraint because he refrained from striking down the majority of the Act, to which he was likely opposed. Additionally, his Commerce Clause and individual mandate analysis reflects the Courts’ past decisions, which demonstrates his respect for precedent. Thus, because Roberts pursued two out of his three non-parametric goals in NFIB, the non-parametric goals element explains Roberts’ somewhat unexpected ruling in NFIB. II. Roberts’ Strategic Actions in NFIB Roberts’ actions in NFIB also exemplify the second element of the strategic model, which argues that justices act strategically to maximize their utility in light of constraints.53 Roberts’ actions in NFIB were strategic for two main reasons. First, while Roberts held that the mandate penalty was not a tax to allow the Court to hear NFIB under the Anti-Injunction Act (which bars citizens from suing to strike down taxes prior to their collection), he held that it was a tax under the Taxing and Spending Clause.54 Roberts argued that the Taxing and Spending Clause, which grants Congress the power to “lay and collect Taxes,” authorizes Congress to tax those who do not obtain insurance under the individual mandate.55 The contradiction between these portions of his opinion demonstrates the strategic maneuvering he performed to uphold the vital portion of the Act. His opinion shows how diligently he searched for an “escape hatch” under the taxing power, as he acknowledged that his interpretation was not “the most natural,” but is rather a “fairly possible one,” citing precedentially-established saving constructions.56 Saving constructions seek to rescue statutes from being rendered unconstitutional, which is precisely what Roberts did in NFIB. Secondly, because he held the individual mandate constitutional under the Taxing and Spending Clause, Roberts was able to declare the mandate unconstitutional under the Commerce Clause, thus limiting the Congress’ Commerce Clause powers.57 As he ultimately still upheld the statute, he avoided the political fallout of overturning the statute.58 Roberts demonstrated his commitment to limiting federal power by beginning the opinion with an outline and praise of federalism, in which he cited The Federalist Papers and McCulloch v. Maryland.59 Ultimately, Roberts strategically maneuvered the Court to more closely conform to a federalist reading of the Commerce Clause. He upheld Commerce Clause precedent, which permits Congressional regulation of pre-existing commerce, yet limited the Commerce

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JHULR | A Test of the Strategic Model Clause by overturning the mandate on the grounds that it incentivizes new individuals to become active in commerce, and does not pertain to pre-existing commerce.60 He was even able to persuade Justices Breyer and Kagan, who, as typically liberal justices, might be 61 unlikely to uphold such a pro-federalist ruling. Thus, Roberts strategically shifted the Commerce Clause from a broad “nationalist perspective” to a more restrictive “federalist perspective.”62 Although Roberts (from a purely ideological standpoint) might have preferred to completely overturn the statute, his maneuvering under the Taxing and Spending Clause allowed him to limit what he viewed as its most insidious effect: an expansion of federal power via the Commerce Clause, yet not face the political consequences of striking down the Act in its entirety. III. Institutional Constraints The final element of the strategic model is that justices are subject to institutional constraints, which limit their ability to pursue their non-parametric goals, and often force 63 them to employ strategic action. Roberts faced three institutional constraints in NFIB: the Legislative and Executive branches, his colleagues, and the opinions of the American people.

The Legislative and Executive branches, through threatening the Court with a legislative override, can prompt justices to modify their preferences to conform more closely to the Congressional majority to avoid reversal.64 Thus, the two other branches are often an institutional constraint against the Court. However, it does not appear that Roberts was concerned about legislative override because a Court concerned with the opinions and actions of the other branches is the opposite of his 65 previously discussed nonparametric goal of a nonpartisan, independent Court. In the instance of NFIB specifically, the Legislative and Executive branches were in favor of the act, as the Senate voted 60 to 39 to end the filibuster and pass the Act (on strict party lines), the House voted 219 to 212 (with all Republicans and some Democrats opposing the bill), and President Obama lobbied for and signed the bill.66 If Roberts was exposed to the news prior to rendering the NFIB decision, he likely saw some of the news articles in May of 2012 that argued that the Court and Roberts’ reputation would take a hit should they overturn the Act.67 Additionally, President Obama postured to the Court at a press conference that he was “confident” that the Supreme Court would not take the “unprecedented, extraordinary step of overturning” the Act.68 However, in a 2016 speech, Roberts stated, “criticism of the Court doesn’t bother me at all.”69 Thus, while Roberts’ various remarks would suggest that he does not yield to Legislative or Executive strong-arming, his decision in NFIB did, in part, side with the opinions of the Legislature and President, although he was willing to defy the other branches’ wishes by striking down the Act’s Medicaid expansion. The second common institutional constraint a justice may experience is the opinions of their colleagues on the bench.70 Assuming consensus building was one of Roberts’ nonparametric

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JHULR | A Test of the Strategic Model goals, then the opinions of the Associate Justices matter a great deal. In his confirmation hearing testimony, Roberts said “collegiality” is “an essential attribute of judicial decision-making,” and said that he aspired to have the “humility” to be “fully open” to the 71 views of his peers on the Court.

In NFIB, Roberts was open to the views of his peers on the Court, but did not respond to collegial persuasion from the conservative bloc. Some Court watchers argue that Roberts initially sided with the conservative bloc to strike down the Act in the first conference vote.72 However, when writing the majority opinion, Roberts switched sides, which prompted him to try to get Kennedy or the other conservative justices to join the new-majority.73 For example, Roberts used similar language in the majority opinion that Kennedy had used in March’s oral arguments about the mandate’s 74 effect on the relationship between the federal government and citizens. Roberts also tried to get the rest of the conservative bloc to sign on through his strict language on the limits of the 75 Commerce Clause. However, they refused, even though they expressed similar views in their joint dissent, which demonstrates their frustration towards Roberts after his vote switch.76 Additionally, the joint dissent appears to have been the initial majority opinion, because it spends a great deal more time criticizing Ginsburg’s partial dissent than Roberts’ majority. It should be noted that this is speculation has not been confirmed by the Court. Assuming it is true, Roberts was subjected to but not swayed by the constraint of his peers’ ideology and strong-arming. Finally, justices may be constrained by the viewpoints of the American people, although the public’s opposition to the Act’s individual mandate did not stop Roberts from upholding it in NFIB. Roberts seems willing to defy the wishes of the American people, because he stated the Court does not “speak for the people,” it “speak[s] for the Constitution.”77 Additionally, he noted that the role of the Court is to support minority rights and viewpoints against the majority.78 A Kaiser poll taken after the NFIB oral arguments (in March of 2012) found that 51 percent of Americans thought that the Supreme Court should overrule the individual 79 mandate, which Roberts upheld. In contrast, the same Kaiser poll found that 67 percent of Americans favored the Medicaid expansion, yet Roberts struck it down. Additionally, a January 2012 Kaiser poll found that 44 percent of Americans found the Act somewhat or very unfavorable, with 37 percent finding it favorable, and 19 percent refusing to answer.80 The 81 plurality of Americans had found the Act unfavorable since April of 2011. Yet, despite the public’s opposition to the statute, Roberts upheld it, and struck down the only provision (the Medicaid expansion) that the majority of Americans favored. Thus, Roberts was not constrained by the views of the American people, because his decision in NFIB defied their preferences.

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Conclusion and Implications The strategic model explains the decision making of Chief Justice Roberts in NFIB because, out of the seven features of the strategic model analyzed here, Roberts’ actions in NFIB exemplified five. The seven features are as follows: the non-parametric goals of consensus building; Court legitimacy through the avoidance of partisanship and judicial restraint; strategic actions; and the institutional constraints of the Legislative and Executive branches, other Supreme Court justices, and the American people. First, Roberts’ pursued his non-parametric goals of promoting judicial restraint and maintaining Court legitimacy by avoiding partisanship. As his non-parametric goals are outlined in his Senate confirmation hearings and other speeches, and his success in achieving them can be inferred from NFIB, and this is strong, credible evidence for the strategic model. However, in many of those same speeches, Roberts emphasized his commitment to a third non-parametric goal: consensus, which he was not able to achieve in NFIB, where the Court splintered into many opinions. Yet other factors, such as the complexity of the case, or simply the staunch views of his colleagues, might have been at play. Next, Roberts’ strategic maneuver (upholding the mandate under the Taxing and Spending Clause) limited the Commerce Clause, yet avoided the political fallout of overruling partisan legislation, which exemplifies the second element of the strategic model, strategic actions. The contradictions in his opinion, which called the mandate’s penalty a tax under the Taxing and Spending Clause, but not a tax under the Tax Anti-Injunction Act (which would have barred the case from the Court) demonstrate how desperately he was grappling for the Taxing and Spending Clause “escape hatch.” Like his success in pursuing two of his non-parametric goals, this demonstration of the strategic model is particularly strong because it can be directly demonstrated by his written opinion in NFIB. Finally, the third aspect of the strategic model, institutional constraints, is the element that is least demonstrated by NFIB. While Roberts’ commentary would suggest that he does not yield to the opinions of the other branches, his decision in NFIB did (coincidentally or otherwise) side with the opinions of Congress and the President. Additionally, while he and his conservative colleagues may have attempted to sway each other, Roberts did not appear to be influenced, and there is little clash between the opinions, perhaps signaling animosity between the two camps. It should be noted that the theory that Roberts first joined the conservative bloc but then ultimately switched his vote during the opinion writing process is speculation and lacks authoritative evidence, thus rendering it not credible evidence for the strategic model. Finally, the views of the American people is the institutional constraint with the most evidence, because their preferences can be measured through scientific polls. However, Roberts was indifferent to the views of the majority of Americans, who were opposed to the individual mandate which contradicts the strategic model. Ultimately, while the strategic model cannot explain Roberts’ inability to gather consensus, or his apparent disregard for the views of the American people, it does explain his pursuit of Court legitimacy, use of judicial restraint, and strategic maneuvering, and may explain his deference to the other branches, and the influence of his colleagues in NFIB. Thus, the strategic model, in large part, does explain the decision making of Roberts in NFIB. 66

JHULR | A Test of the Strategic Model Six years after NFIB, Justice Brett Kavanaugh, nominated by President Trump, was confirmed to the Supreme Court. Kavanaugh’s confirmation hearings and vote were contentious and partisan.82 The Senate vote split nearly down party lines after the FBI’s investigation in Professor Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her when they were in high school.83 Following this contention, the American people experienced a crisis of faith in the Supreme Court. A Gallup poll found that while 37 percent of Americans felt a “great deal” or “quite a lot” of confidence in the Supreme Court, 60 percent felt “some,” “very little” or “none.”84 Similarly, another Gallup poll found that 42 percent of Americans opposed Kavanaugh’s confirmation, while 39 percent were in favor.85 This was likely very concerning to Roberts, who feels pressure to maintain the legitimacy of the Supreme Court. After all, in NFIB, he prioritized the Court’s legitimacy over his own ideological preference, the views of the American people, and his conservative colleagues. Now, Roberts’ position on the Court becomes even more important. Kavanaugh joined the Court following the retirement of Justice Kennedy, who was a key swing vote to liberal 86 victories in marriage equality, affirmative action and abortion rights. Kavanaugh, on the other hand, is much more conservative, akin to Alito or Gorsuch.87 This means that the Court now holds a five justice conservative majority, with Roberts being the most left leaning, and therefore the swing vote. The conservative majority, coupled with a Republican President and Senate, could seemingly further a conservative agenda, unopposed. However, Roberts, as the Chief Justice and due to his newly-attained swing vote, holds great power on the Court. As shown by his behavior in NFIB, in future partisan cases, Roberts is likely to prioritize the Court’s legitimacy and public perception above all else, and, in doing so, oppose members of the party that nominated him.

Lauren Andrews is a junior at the University of Southern California, where she studies Law, History, and Culture, with minors in Business Law and Marketing. Through her studies at USC, Lauren has written extensively on U.S. Supreme Court cases. In the fall of 2019, Lauren will participate in an advanced legal writing cohort, which will focus on cases currently before the California Supreme Court and culminate in an amicus brief-proposal at Southwestern Law School. Lauren plans to apply for law school this coming fall, and attend in the fall of 2020.

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Notes 1

Congressional Budget Office, Federal Subsidies for Health Insurance Coverage for People Under Age 65: 2016 to 2026, (2016). 2 The Patient Protection and Affordable Care Act, Public Law 111-148, U.S. Statutes at Large 124 (2010): 119-1025. 3 Jonathan Oberlander, “The Republican War on Obamacare — What Has It Achieved?” The New England Journal of Medicine, August 2018: 703-705. 4 Sarah Rosenbaum, and Timothy Westmoreland, “The Supreme Court’s Surprising Decision On The Medicaid Expansion: How Will The Federal Government And States Proceed?” Health Affairs 31, no. 8, 2012. 5 Pablo Spiller and Rafael Gely, “Strategic Judicial Decision Making,” The Oxford Handbook on Law and Politics (2008): 2. 6 Mario Bergara et al, “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint,” Legislative Studies Quarterly 28, no. 2 (2003): 248. 7 T. Pavone, “Jeffrey Segal & Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited,” Princeton University (2015): 3 8 Lee Epstein and Tonja Jacobi, “The Strategic Analysis of Judicial Decisions” The Annual Review of Law and Social Science (2010): 348. 9 Pavone, “Jeffrey Segal & Howard Spaeth,” 3. 10 Spiller and Gelly, “Strategic Judicial Decision Making,” 37. 11 Epstein and Jacobi, “The Strategic Analysis of Judicial Decisions,” 345.. 12 Brad Snyder, “The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts,” Ohio State Law Journal 71, no. 1149 (2010): 1217. 13 Ibid., 1219-1225. 14 Adam Liptak and Todd Purdum, “As Clerk for Rehnquist, Nominee Stood Out for Conservative Rigor,” The New York Times, July 31, 2005. 15 Snyder, “The Judicial Genealogy of Roberts,” 1230. 16 Philip Kurland, “Review of The Brethren: Inside the Supreme Court,” The University of Chicago Law Review 47, no. 185, (1979): 185–198. 17 Snyder, “The Judicial Genealogy of Roberts,” 1230. 18 Ibid., 1229. 19 Dahlia Lithwick, “Order in the Court! How John Roberts will keep the Supreme Court from descending into chaos,” Slate, February 23, 2016. 20 Charles Babington and Peter Baker, “Roberts Confirmed as 17th Chief Justice,” The Washington Post, September 30, 2005. 21 Jeremy Byelin, “John G. Roberts: The Conservative, Yet Apolitical and Consensus-Building Chief Justice,” Reuters Legal Solutions Blog, August 28, 2013. 22 Todd Purdum et al., “Court Nominee’s Life Is Rooted in Faith and Respect for Law,” The New York Times, July 21, 2005. 23 U.S. Congress, Senate, Committee on the Judiciary, Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, 109th Cong., 1st sess., 2005, 57. 24 Ibid., 181; Purdum et al., “Court Nominee’s Life.” 25 Courtney Alonzo, “The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law,” Seton Hall University: Law School Student Scholarship, (2015): 37. 26 John Dean, “Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan.” Verdict Justia, October 27, 2014. 27 Ibid. 28 Jonathan Adler, “Chapter 10: Judicial Minimalism, the Mandate and Mr. Roberts” in The Health Care Case: The Supreme Court’s Decision and Its Implications, by Nathaniel Persily et al., (Oxford University Press, 2013), 176; Adam Liptak, “Court Under Roberts Is Most Conservative in Decades,” The New York Times, July 24, 2010. 29 U.S. Senate, Confirmation Hearing on the Nomination of John G. Roberts, 190. 30 Ibid. 31 Ibid., 146. 32 Ibid., 147. 33 Ibid., 303. 34 Ibid. 35 Ibid. 36 Hope Yen, “Roberts Seeks Greater Consensus on Court,” The Washington Post, May 21, 2006; U.S. Senate, Confirmation Hearing on the Nomination of John G. Roberts, 203; Snyder, “The Judicial Genealogy of Roberts,” 1224. 37 John Roberts, “Remarks at University of Minnesota Law School,” CSPAN, October 21, 2018, Television Archive. 38 Byelin, “John G. Roberts.” 39 NFIB v. Sebelius 567 U.S. 519 (2012) 40 Gintautas Dumcius, “Supreme Court Chief Justice John Roberts on Judges: ‘We Don’t Work as Democrats or Republicans.’” MassLive, Advance Local Media, February 4 2016. Lithwick, “Order in the Court!” 41 Jesse Byrnes, “Trump Keeps up Roberts Dispute: 9th Circuit ‘a Complete & Total Disaster.’” The Hill, November 22. 2018.

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42

Linda Greenhouse, “Chapter 11: Is It the Roberts Court?” The Health Care Case: The Supreme Court’s Decision and Its Implications by Nathaniel Persily et al., (Oxford University Press, 2013), 188. 43 Ibid., 187 44 Steven Teles, “On the Affordable Care Act Decision,” Washington Monthly, June 28, 2012. 45 King v. Burwell, 576 U.S., 21 (2015) 46 Greenhouse, “Chapter 11: Is It the Roberts Court?” 188. 47 Ibid. 48 Teles, “On the Affordable Care Act Decision.” 49 Ibid. 50 United States v. Morrison 529 U.S. 598 (2000) 51 NFIB v. Sebelius 567 U.S. 519, 574 (2012) 52 South Dakota v. Dole 483 U.S. 203 (1987); Pavone, “Jeffrey Segal & Howard Spaeth,” 3. 53 Spiller and Gelly, “Strategic Judicial Decision Making,” 37; 26 U.S.C. § 7421. Prohibition of suits to restrain assessment or collection. 54 NFIB v. Sebelius 567 U.S. 519 (2012).; U.S. Constitution Art. 1 Sect. 8 Cl. 1.; 55 NFIB v. Sebelius 567 U.S. 519, 524 (2012). 56 Teles, “On the Affordable Care Act Decision.” 57 NFIB v. Sebelius 567 U.S. 519 (2012). 58 Ibid. 59 Dean, “Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan.” 60 James Oliphant, “Cover Story: Tipping the Scales,” Constitutional Accountability Center, August 6 2012. 61 Dean, “Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan.” 62 Alonzo, “The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law.” 63 Dean, “Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan.” 64 Epstein and Jacobi, “The Strategic Analysis of Judicial Decisions,” 345. 65 Spiller and Gelly, “Strategic Judicial Decision Making,” 37; Byrnes, “Trump Keeps up Roberts Dispute: 9th Circuit ‘a Complete & Total Disaster.’” 66 Lithwick, “Order in the Court!” 67 Glenn Kessler, “History Lesson: How the Democrats pushed Obamacare through the Senate,” The Washington Post, June 22, 2017. 68 Ibid. 69 Jan Crawford, “Roberts Switched Views to Uphold Health Care Law,” CBS News, July 2 2012, 2. 70 Jeff Mason, “Obama Takes a Shot at Supreme Court over Healthcare,” Reuters, April 12, 2012. 71 Epstein and Jacobi, “The Strategic Analysis of Judicial Decisions,” 345. 72 U.S. Senate, Confirmation Hearing on the Nomination of John G. Roberts, 122. 73 Crawford, “Roberts Switched Views to Uphold Health Care Law,” 1-4. 74 Ibid., 3. 75 Ibid. 76 Ibid., 4. 77 Avik Roy, “The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare,” Forbes, July 1, 2012. 78 Richard Gonzales, “Chief Justice Roberts Tells Audience Supreme Court Will Work for ‘One Nation,’” NPR, October 17, 2018. 79 Kaiser, “Kaiser Health Tracking Poll: March 2012,” Public Opinion on Health Care Issues, The Kaiser Family Foundation, March 2012. 80 Kaiser, “Kaiser Health Tracking Poll: January 2012,” Public Opinion on Health Care Issues, The Kaiser Family Foundation, January 2012, 1 81 Ibid. 82 Oliver Roeder, “How Kavanaugh Will Change the Supreme Court,” FiveThirtyEight, October 6, 2018. 83 Ibid. 84 Gallup, “Confidence in Institutions,” 2018; 85 Jeffrey Jones, “Opposition to Kavanaugh Had Been Rising Before Accusations,” Gallup, September 18, 2018. 86 Obergefell v. Hodges, 576 U.S. (2015); Fisher v. University of Texas, 579 U.S. (2016); Whole Woman’s Health v. Hellerstedt, 579 U.S. (2016) 87 Oliver Roeder and Amelia Thomson-DeVeaux, “How Conservative is Brett Kavanaugh?” FiveThirtyEight, July 17, 2018.

Bibliography Adler, Jonathan H. “Chapter 10: Judicial Minimalism, the Mandate and Mr. Roberts” The Health Care Case: The Supreme Court’s Decision and Its Implications, by Nathaniel Persily et al. Oxford University Press, 2013. Alonzo, Courtney C. “The Judicial Philosophy of Chief Justice John Roberts: An Analysis Through the Eyes of International Law,” Seton Hall University: Law School Student Scholarship, 2015.

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JHULR | A Test of the Strategic Model Associated Press, The. “Chief Justice Says His Goal Is More Consensus on Court.” The New York Times, 22 May 2006, www.nytimes.com/2006/05/22/washington/22justice.html?mtrref=undefined. Babington, Charles, and Peter Baker. “Roberts Confirmed as 17th Chief Justice,” The Washington Post, September 30, 2005, www.washingtonpost.com/wp-dyn/content/article/2005/09/29/AR2005092900859.html. Bergara, Mario, et al. “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint,” Legislative Studies Quarterly 28, no. 2, May 2003, pp. 247–280. JSTOR, doi:10.2139/ssrn.421520. Byelin, Jeremy. “John G. Roberts: The Conservative, Yet Apolitical and Consensus-Building Chief Justice,” Reuters Legal Solutions Blog, August 28, 2013, https://blog.legalsolutions.thomsonreuters.com/top-legal-news/john-g-roberts-conservative-yet-apolitical-consensus-building-chief-justice/. Byrnes, Jesse. “Trump Keeps up Roberts Dispute: 9th Circuit ‘a Complete & Total Disaster’.” The Hill, 22 Nov. 2018, https://thehill.com/homenews/administration/417966-trump-keeps-up-justice-roberts-exchange-9th-circuit-a-completetotal. Congressional Budget Office, Federal Subsidies for Health Insurance Coverage for People Under Age 65: 2016 to 2026, (2016) https://www.cbo.gov/publication/51385. Crawford, Jan. “Roberts Switched Views to Uphold Health Care Law,” CBS News, July 2, 2012, www.cbsnews.com/news/roberts-switched-views-to-uphold-health-care-law/. Dean, John. “Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan,” Verdict Justia, October 27 2014, verdict.justia.com/2012/06/29/why-chief-justice-roberts-dared-not-overturn-president-obamas-healthcare-plan. Dumcius, Gintautas. “Supreme Court Chief Justice John Roberts on Judges: ‘We Don’t Work as Democrats or Republicans’,” MassLive, Advance Local Media, February 4 2016, www.masslive.com/news/index.ssf/2016/02/supreme_court_chief_ justice_jo.html. Epstein, Lee, and Tonja Jacobi. “The Strategic Analysis of Judicial Decisions,” The Annual Review of Law and Social Science, August 24 2010, 341–358, doi:10.1146/annurev-lawsocsci-102209-152921. Gonzales, Richard. “Chief Justice Roberts Tells Audience Supreme Court Will Work for ‘One Nation,’ NPR, October 17, 2018, https://www.npr.org/2018/10/17/658028262/chief-justice-roberts-tells-audience-supreme-court-will-work-for-one-nation. Greenhouse, Linda. “A Justice in Chief,” The New York Times, June 28, 2012, opinionator.blogs.nytimes.com/2012/06/28/ a-justice-in-chief/. Greenhouse, Linda. “Chapter 11: Is It the Roberts Court?” The Health Care Case: The Supreme Court’s Decision and Its Implications, by Nathaniel Persily et al., Oxford University Press, 2013. Kaiser. “Kaiser Health Tracking Poll: January 2012,” Public Opinion on Health Care Issues, January 2012, kaiserfamilyfoundation.files.wordpress.com/2013/01/8274-f.pdf. Kaiser. “Kaiser Health Tracking Poll: March 2012,” Public Opinion on Health Care Issues, The Kaiser Family Foundation, March 2012, kaiserfamilyfoundation.files.wordpress.com/2013/01/8274-f.pdf. Kessler, Glenn. “History Lesson: How the Democrats pushed Obamacare through the Senate.” The Washington Post, June 22, 2017 https://www.washingtonpost.com/news/fact-checker/wp/2017/06/22/history-lesson-how-the-democratspushed-obamacare-through-the-senate/. Kurland, Philip B. “Review of The Brethren: Inside the Supreme Court,” The University of Chicago Law Review 47, no. 185, 1979, 185–197, Chicago Unbound. Lithwick, Dahlia. “Order in the Court! How John Roberts will keep the Supreme Court from descending into chaos,” Jurisprudence, Slate, February 23, 2016, https://slate.com/news-and-politics/2016/02/john-roberts-will-not-let-there-bechaos-at-the-supreme-court.html Liptak, Adam, and Todd S. Purdum. “As Clerk for Rehnquist, Nominee Stood Out for Conservative Rigor,” The New York Times, July 31, 2005, www.nytimes.com/2005/07/31/politics/politicsspecial1/as-clerk-for-rehnquist-nominee-stood-out-for.html. Mason, Jeff. “Obama Takes a Shot at Supreme Court over Healthcare,” Reuters, April 12, 2012, www.reuters.com/article/ us-obama-healthcare-idUSBRE8310WP20120402. Oliphant, James. “Cover Story: Tipping the Scale,” Constitutional Accountability Center, August 6, 2012, www.theusconstitution.org/news/cover-story-tipping-the-scales/. Pavone, T. Jeffrey Segal & Harold Spaeth, The Supreme Court and the Attitudinal Model Revisisted. Princeton University, February 19, 2015. Posner, Richard A. “What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does),” University of Chicago Law School: Chicago Unbound 2, no. 15, 1993, pp. 1–41., doi:10.1086/scer.3.1147064. Purdum, Todd S., et al. “Court Nominee’s Life Is Rooted in Faith and Respect for Law.” The New York Times, July 21, 2005, www.nytimes.com/2005/07/21/politics/court-nominees-life-is-rooted-in-faith-and-respect-for-law.html.

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JHULR | A Test of the Strategic Model Roberts, John G. “Georgetown University Law Center Commencement Address.” CSPAN. Georgetown University Law Center Commencement, November 20 2018, Washington D.C., Healy Lawn, www.c-span.org/video/?192685-1/georgetown-university-law-center-commencement-address. Roberts, John G. “Remarks at University of Minnesota Law School,” CSPAN, October 21, 2018, Television Archive, https://archive.org/details/CSPAN_20181021_143500_Chief_Justice_Roberts_Remarks_at_University_of_Minnesota_Law_School Rosenbaum, Sarah, and Timothy Westmoreland. “The Supreme Court’s Surprising Decision On The Medicaid Expansion: How Will The Federal Government And States Proceed?” Heath Affairs 31, no. 8, August 2012, doi:https://doi. org/10.1377/hlthaff.2012.0766. Roy, Avik. “The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare.” Forbes, Forbes Media LLC, July 1, 2012, www.forbes.com/sites/theapothecary/2012/07/01/the-supreme-courts-john-roberts-changed-hisobamacare-vote-in-may/#2c13da67d701. Snyder, Brad. “The Judicial Genealogy (and Mythology) of John Roberts: Clerkships from Gray to Brandeis to Friendly to Roberts.” Ohio State Law Journal 71, no. 1149, 2010, 1150–1243, doi:http://dx.doi.org/10.2139/ssrn.1722362. Spiller, Pablo, and Rafael Gely. “Strategic Judicial Decision Making.” The Oxford Handbook on Law and Politics, August. 2008, 1–14. Oxford Handbooks Online, doi:10.1093/oxfordhb/9780199208425.003.0003. Stein, Robert A., and John G. Roberts. “The 2018 Stein Lecture: John G. Roberts, Jr. Chief Justice of the United States.” CSPAN, October 17, 2018, www.CSPAN.org/video/?c4755741/chief-justice-roberts-remarks-university-minnesota-law-school. Accessed 20 Nov. 2018. Teles, Steven M. “On the Affordable Care Act Decision,” Washington Monthly, June 28, 2012, washingtonmonthly.com/2012/06/28/on-the-affordable-care-act-decision/. 26 U.S.C. § 7421. 1954. LexisNexis Academic. Web. 27 Nov 2018. U.S. Congress, Senate, Committee on the Judiciary, Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, 109th Cong., 1st sess., 2005, 57. U.S. Constitution. Art. I, Sec. 8, Cl. 1. Yen, Hope. “Roberts Seeks Greater Consensus on Court,” The Washington Post, May 21, 2006, www.washingtonpost.com/wp-dyn/content/article/2006/05/21/AR2006052100678.html.

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Documentation Status and the Psychological Development of Children in Immigrant Families Lidya Tadesse Abstract Currently, millions of U.S. citizen children live with at least one undocumented parent and under the constant threat of being separated from their parents. Living under such conditions has pervasive effects on children’s health and well-being. This article will address current immigration laws and policies as well as cover scientific literature discussing the impact of parental documentation status on children’s psychological functioning. Additionally, this article argues for empirically supported immigration laws and policies that expand removal protections in order to better protect children’s psychological health and development.

T H E J O H N S H O P K I N S U N D E R G R A D U AT E L AW R E V I E W | S P R I N G 2 0 1 9 | V O L U M E 1

The Case for Expanding Removal Protections

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Introduction According to the Migration Policy Institute (MPI), approximately 5.1 million children under the age of eighteen live with at least one undocumented parent, which accounts for seven percent of the total U.S. child population.1 The overwhelming majority of these children (81 percent) are either citizens or have legal status.2 As such, they themselves are not at risk for deportation; however, they are at a risk for becoming separated from their parent(s) should their parent(s) be deported. Over the past years, both researchers and policy-makers have attempted to explore the dynamics of mixed-status families and the impact of parental documentation status on the well-being of citizen-children. This paper will review current immigration policies and the legal debates surrounding these policies as well as leading empirical studies to consider how parental documentation status impacts psychological and developmental outcomes of citizen-children. Considering how this evidence should shape future law and policy, this paper argues for expanding removal protections to undocumented parents of citizen-children.

Timeline of Immigration Policies and Enforcement The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) are two federal departments and agencies responsible for overseeing current immigration laws. ICE is a federal agency that operates under the DHS and can be thought of as the enforcement arm of the Department. The majority of ICE’s duties involve immigration enforcement within the United States. ICE routinely receives enforcement directives from the DHS, which can change within the same and between different administrations. Secure Communities is an enforcement program introduced by then ICE Acting Director Marc Rapp on July 21, 2009. At its core, Secure Communities worked to form a partnership between ICE and federal, state, and local law enforcement to facilitate the sharing of information on suspected criminals. The program established a law enforcement network that would pass on to ICE the fingerprints of every individual arrested by partnering law enforcement. These fingerprints would then undergo a criminal and immigration background check via Federal Bureau of Immigration (FBI) and DHS databases. ICE would then notify respective law enforcement officers of the suspect’s immigration status so a removal procedure could take place if necessary.3 In its implementation, the Secure Communities program left much room for interpretation by both law enforcement agencies as well as ICE. In its introduction in 2009, ICE claimed that a central goal of Secure Communities was to “identify aliens convicted of a crime, sentenced to imprisonment, and who may be deportable, and remove them from the United States once they are judged deportable.”4 In its language, this rationale implied that “criminal aliens” referred to undocumented migrants who were found guilty of a crime. However—of course— entering the United States illegally is a crime in itself. As such, it would be possible for an undocumented migrant to be charged, convicted, and thus considered a “criminal alien” in violating immigration laws alone.

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JHULR | The Case for Expanding Removal Protections Realizing the inconsistencies between the Secure Communities’ mission statement and its implementation, the Obama administration moved to replace Secure Communities. On November 20, 2014, then Secretary of Homeland Security Jeh Johnson announced in a 5 memorandum the introduction of the Priority Enforcement Program (PEP). PEP stratified criminal offenses into three groups, referring to different offenders as “Priorities.” “Priority 1” offenders included what the DHS described as “threats to national security, border security, and public safety.” The majority of Priority 1 offenders were felons, particularly those convicted of aggravated felonies and/or gang affiliations. “Priority 2” offenders included those convicted of three or more misdemeanors or those convicted with one or more “significant misdemeanor” (i.e. sexual assault or harassment, domestic violence, unlawful firearms, drug trafficking, DUI, etc.). “Priority 3” offenders included all other undocumented migrants given a final order of removal. A key aspect of these definitions was that they clearly stated immigration status alone (i.e. violating immigration laws) could not be considered sufficient for an individual to be considered a Priority 1 or a Priority 2 offender. Furthermore, the DHS noted that Priority 3 offenders should be removed in most cases, however they provide a caveat to limit removals if “in the judgment of an immigration officer, the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority.”6

In its essence, PEP worked to limit the removal of non-criminal and non-threatening undocumented migrants that remain well-contributing members of society. In the context of migrant youth, PEP protected the overwhelming majority of undocumented 7 parents with citizen-children (approximately 87 percent according to the MPI). Despite these efforts, PEP remained ICE’s enforcement program for only a fairly short period of time. On January 25, 2017—less than three years after its introduction and a mere five days after the inauguration of Donald Trump and the transition into a new administration—PEP was ended. The DHS under President Trump moved to reinstate the Secure Communities program first introduced under the Obama administration, focusing removal efforts on undocumented migrants who have been charged and not yet convicted of any criminal offense.8 This return to a “tough” immigration enforcement strategy is buttressed by the recent implementation of a “Zero Tolerance Policy”1 by the Trump administration at the U.S.-Mexico 9 border. The introduction of this policy furthered the relationship between the DHS and the Department of Justice to prosecute undocumented migrants and separate them from their children. Although eventually rescinded by President Trump after public outcry, Zero Tolerance exemplifies the justifiable fear undocumented parents have of being separated from their children. This fear is only heightened by the speed at which enforcement directives and policies can change, as is seen with the turnaround times for Secure Communities, PEP, and Zero Tolerance. 1

“Zero Tolerance” is an immigration enforcement strategy that can refer to either the prosecution of unlawful immigrants upon their entry into the United States and/or the detainment of asylum seekers so they cannot enter the country while their asylum case is being processed. In its recent application, “Zero Tolerance” involved detaining parents and children entering the US unlawfully and holding them in separate facilities (“Separating families at the border,” 2018).

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On the other hand, executive actions have historically been used to attempt to introduce more consistent and lasting immigration policies. In 2014, on the same day the DHS announced the introduction of PEP, President Obama unveiled through a series of executive actions new policies that further prioritized the removal of criminal while extending protections to non-criminal undocumented migrants. The first part of Obama’s executive actions expanded the Deferred Action for Childhood Arrivals (DACA) program that was first introduced in 2012. Initially, DACA provided individuals deferment from removal proceedings as well as employment authorizations for a period of two years given that they met the following criteria: (1) came to the U.S. under the age of sixteen, (2) had continuously lived in the U.S. since 2007, (3) were currently enrolled in school, graduated from high school, obtained a GED, or were honorably discharged from military service, (4) had not been a Priority 1 or Priority 2 undocumented migrant as outlined by PEP, and (5) were under the age of 30.10 In its expanded form, the period of deferment was three years, and children living in the U.S. since 2010 were also eligible to apply. More significantly, it removed the requirement that individuals had to be less than 30 years old to apply—although applicants still had to provide proof of entry into the U.S. before the age of sixteen.11 The second part of Obama’s executive actions established the Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program. DAPA was meant to provide deferment from removal proceedings and employment authorization for a period of three years to parents of U.S. citizen or permanent resident children. In addition, to qualify for DAPA these parents must have (1) lived in the U.S. since 2010 and (2) not have been a Priority 1 or Priority 2 undocumented migrant.12

The introduction of DAPA was a massive immigration policy shift that tried— and failed—to exercise presidential powers to circumvent approval from Congress Shortly after DAPA was announced to go into effect, 26 states filed a suit against the administration in the U.S. District Court for the Southern District of Texas (i.e. United States v. Texas, et al.). Arguing that DAPA would result in an increased cost of administering their driver’s license and other public programs (i.e. Medicaid and Social Security) because it would grant employment and social services eligibility to millions of people, Texas et al. were able to maintain their standing in challenging the federal government’s new policy.13 More specifically, they challenged the authority of DHS to enact a program like DAPA, arguing that it not only violated the Administrative Procedure Act, but also the Immigration Act of 1990. The Administrative Procedure Act (APA) outlines the responsibilities federal government agencies have when introducing new policies and regulations and what information needs to be made public before these policies and regulations can be put into effect.14 A key aspect of the APA is the requirement that agencies must provide the public with “adequate notice” of a proposed rule followed by a “meaningful opportunity to comment on the rule’s content.”15

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JHULR | The Case for Expanding Removal Protections Texas et al. used this law to argue that states have the ability to review and comment on policies introduced by DHS—in this case DAPA—before they are obliged to implement them. From there, Texas et al. argued that DAPA contradicts the Immigration Act, which explicitly lays out who can be excluded from deportation proceedings and under what circumstances. As such, the Immigration Act gives states the authority to deny certain benefits to undocumented migrants. Furthermore, Texas et al. argued that it was in the interests of the states to do just that given that they “bear the many consequences of unlawful immigration.”16 Ultimately, Texas et al. were able to effectively argue their position and were awarded a preliminary injunction halting the DAPA program on February 16, 2015 by Judge Andrew Hanen. In his opinion, Judge Hanen identifies the key issues this case addresses, including federalism, separation of powers, and the constitutionality of the DHS introducing DAPA.17 According to him, the federal government does generally reserve prosecutorial discretion, which also applies to the prosecution of those violating immigration laws.18 However, this prosecutorial discretion is only valid so long as it does not violate the Constitution or any existing statute. As such, the violation of the Immigration Act (which the States have an interest in protecting) negates this prosecutorial discretion.19 In November of 2015, a few months after the preliminary injunction, United States v. Texas et al. found itself before the U.S. Supreme Court. In addition to arguments by both the states and the federal government, many other organizations also weighed in on the case via amicus curiae briefs. Examples of such organizations include the American Immigration Council, the American Unity Legal Defense Fund, and Save Jobs USA. One amicus curiae brief that is particularly relevant to the discussion of the effects of parental documentation on undocumented migrants’ children is that which was filed on behalf of Educators and Children’s Advocates. While most other amicus curiae briefs covered the economic, cultural, and political impacts of DAPA, Educators and Children’s Advocates were the only organization to substantially focus on the impact DAPA would have on U.S. children.

Acknowledging the importance children hold for the future of the country, Educators and Children’s Advocates argue that, “children whose parents face removal from the United States are more likely to suffer a host of harms, particularly to their development, educational opportunities, economic stability, and psychosocial well-being”20 Nonetheless, in June of 2016, the decision of the lower court was affirmed due to an equally divided Supreme Court. Through these decisions, the courts exemplified that executive actions were not sufficient in introducing DAPA or similar programs. Instead, legislation by Congress updating current immigration laws would be necessary to enact significant changes to immigration policy. The implementation of DAPA essentially remained blocked after the Supreme Court’s ruling—and the DHS did not have time to address it in the final months of President Obama’s term. Unsurprisingly, the Trump administration announced it was rolling back the DAPA program in June of 2017, meaning that DAPA ended before it even began.21

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Psychological and Developmental Impacts Having now established current immigration policies, this paper will move on to examine the empirical support for the association between parental documentation status and negative psychological development in citizen-children. As mentioned in the amicus brief by Educators and Children’s Advocates, the mental health of children of undocumented migrants is an important factor to consider when drafting immigration laws and policies. Thus, in addition to analyzing the association between parental documentation status and negative psychological development in citizen-children through existing developmental theories and various empirical studies, this paper will also examine how documentation status mediates access and utilization of social services, which hold large implications for developmental outcomes. Leading developmental theories assert that the documentation status of parents has profound impacts on the psychological well-being of their children. The Family Stress Model links parent psychological distress to interparental relationship problems and disrupted parenting. In turn, these factors negatively influence psychological development and lead to child and adolescent adjustment problems. More specifically, stressors and hardships impacting parents of children are believed to be associated with maladaptive parenting techniques, including: inconsistent/harsh disciplining, less frequent monitoring, and even withdrawal of support and affection. As a result, children may develop insecure attachments with their parents. Moreover, evidence suggests these parenting techniques are associated with externalizing problems, substance abuse, conduct and behavioral disorders, and problems with academic performance.22 Documentation status is an important mediator in the risk factors associated with psychopathology and/or developmental problems in children of undocumented migrants. Dr. Hirokazu Yoshikawa—a community and developmental psychologists who has written extensively on the subject of immigration and psychology—asserts that analyzing the developmental contexts of children of undocumented migrants is important in characterizing developmental trajectories.

Yoshikawa conceptualizes the risk factors influencing psychological development of children with undocumented parents at three levels: (1) immediate post-migration contexts, (2) proximal social settings, and (3) family processes. Immediate post-migration contexts include neighborhoods of settlement as well as the types of interactions families have with law enforcement. It is already evident that different enforcement directives shape what type of enforcement techniques are used. In cases of enforcement programs where documentation status alone can be prioritized for removal (i.e. Secure Communities), it is easy to see how families are more likely to display distress and anxiety as a result of efforts to avoid law enforcement. Proximal factors affecting psychological development include public policy regarding the economic, health, and social

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JHULR | The Case for Expanding Removal Protections benefits mixed-status families have access to and how they can access these benefits. Key examples of these factors include education, housing, employment, and—perhaps most notable—healthcare. The accessibility and utilization (or rather underutilization) of social services plays a significant role in the developmental trajectories observed in children of 23 undocumented migrants. Thus, by taking into consideration how documentation status fits into the theoretical frameworks that developmental psychologists like Yoshikawa have developed, one can reasonably expect children of mixed-status families to disproportionately display more psychopathological symptoms and worse developmental outcomes. Numerous studies spanning over the past decade provide strong evidence that children with undocumented parents are more likely to have worse psychological health outcomes. Ortega et al.’s 2009 study is one of the earliest studies examining the developmental differences in children with undocumented parents. Studying over 5,000 children, around 1700 of which had Mexican heritage, researchers found that Mexican-origin children had greater odds of having developmental risk when compared to white, U.S.-born children. Moreover, Mexican-origin children with undocumented parents had an even greater odds for having developmental risk than white children.24 A more recent study published in 2015 by Landale et al. examining the behavioral functioning of children in the U.S. of Mexican-heritage shows similar results. In the study, Mexican-origin citizen-children were divided into two categories: those with undocumented mothers and those with documented/naturalized mothers. Researchers compared these groups to each other as well as to other citizen-children of different races/ethnicities with U.S.-born mothers. In total, over 2,000 children participated in the study, and researchers found Mexican-origin children and other Latino-origin children were significantly more likely to display both internalizing (e.g. sad mood/affect, withdrawal behaviors, etc.) and externalizing (e.g. aggression) behavioral problems when compared to children of other ethnicities.

Most importantly, the results suggest that there are differences in internalizing and externalizing behavior problems within the same ethnic group, varying by the mother’s documentation status. This suggests that parental documentation status does indeed have a significant role to play in children’s psychological and behavioral outcomes.25 Perhaps the most convincing evidence linking parent documentation status to child psychological health comes from a 2017 study by Hainmueller et al. Here, researchers examined Emergency Medicaid claims in Oregon. Emergency Medicaid is a government program that covers emergency services to low-income individuals ineligible for standard Medicaid. The vast majority (90 to 99 percent) of those who utilize the Emergency Medicaid program are undocumented migrants. Researchers identified over 5,600 mothers covered by Emergency Medicaid and then measured the mental health of their children by tracking their Medicaid claims over the subsequent years, including any diagnoses of the following disorders: adjustment disorder, acute stress disorder, and anxiety disorder. In order for the

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JHULR | The Case for Expanding Removal Protections mothers to be considered eligible for DACA, they had to have been born after June 15, 1981 (the cutoff date stipulated by the policy), so researchers looked for women whose birthdays fell just before and just after this cutoff date. As such, the characteristics of the women who were DACA eligibility and DACA in-eligible were expected to be virtually the same, except for their documentation status. Researchers then looked to see if there were differences in diagnoses of the aforementioned disorders pre- and post-DACA in children of DACA-eligible and DACA-ineligible mothers. Researchers ultimately found that there was a significantly smaller number of children diagnosed with adjustment or anxiety disorder if their mothers 26 were DACA eligible. This study thus provides strong empirical support for laws and policies that move to provide documentation to parents of U.S. children—particularly as it is directly tied to mothers who benefited from DACA. Given that documentation status greatly impacts the psychological development and mental health of children in mixed-status families, the next question is what processes moderate this association.

In addition to family stress, a growing body of research suggests that access and utilization of social services is a key mechanism that can help explain psychological and developmental disparities among children in mixed-status families. A wide range of evidence suggests that U.S. citizen-children with undocumented migrants are at a disadvantage when it comes to accessing social services, despite being eligible for those services.27 Parent documentation status and threat of deportability are factors associated with less uptake of benefits, particularly health services. A 2016 paper published by Dr. Edward Vargas looking at nearly 5,000 families in 75 hospitals in 20 U.S. cities found that as risk of deportation of parents increases, the likelihood of Medicaid uptake by children 28 decreases. Fear of documentation status exposure plays a large role in why mixed-status families are less likely to access and use social services. A 2018 study published by Marcella Alsan and Crystal Yang in the Stanford Institute for Economic Policy Research considers the mechanisms by which Hispanic immigrant communities are less likely to use social services such as SNAP and enroll for health insurance through the Affordable Care Act (ACA). In their analysis, they consider whether higher mixing between non-citizen and citizen Hispanics was associated with less social service use. In fact, they specifically analyzed the effect of the introduction of the Secure Communities program (2008 to 2014) on service uptake. Utilizing results from the American Community Survey (ACS) by the U.S. Census Bureau, researchers reported finding larger effects of Secure Communities in counties with a large proportion of mixed-status families. Looking at post-Secure Communities data, they found that Hispanic households from high-mixed status counties decreased SNAP uptake by three percent.29 Researchers thus identify fear as an important mediating mechanism in the utilization of social services.

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JHULR | The Case for Expanding Removal Protections In Alsan and Yang’s study, the researchers also recognized that Secure Communities provided for the detainment and removal of undocumented migrants who have committed minor offenses. To consider how this impacts social service uptake, they examined uptake rates in areas of the country with higher proportions of non-violent detainments. They found that in areas where the number of non-violent detainers exceeded violent-detainers, Hispanic households reduced their SNAP uptake by an additional 1.5 percent. On the other hand, researchers considered what impact sanctuary cities may have on social service uptake. Since sanctuary cities restrict the amount local governments and police enforcement cooperate with ICE, one would expect to see higher social service uptakes in these areas. As expected, researchers found that Hispanic households had a 2.2 percent increase in SNAP uptake if they lived in a sanctuary city.30 These results demonstrate that fear associated with potential run-ins with law enforcement negatively influences the utilization of social services in households with migrant backgrounds.

Policy Recommendations Given current immigration policies and some of the leading research on the impacts of parent documentation status on children in mixed-status families, it is clear that current policies harm the psychological and developmental trajectories of a substantial (and growing) number of children in this country.

Lawmakers should turn to leading research to inform the decisions that they make in the future. As a result of the resounding evidence such research provides, laws and policies should be changed to better protect the psychological development and health of U.S. children. In its current state, Secure Communities is not effective in prioritizing serious criminals over non-serious offenders—as such, PEP should be reinstated as ICE’s enforcement program. The implementation of the Secure Communities program has been associated with an increase in fear of detainment and removal as well as interactions with law enforcement. As Alsan and Yang’s study demonstrates, this fear has resulted in less uptake of social services. Likewise, it is evident that fear linked with documentation status has been a proximal factor resulting in anxiety, increased developmental risk, decreased academic performance, and decreased behavioral functioning. Thus, the question that remains is whether the benefits of the Secure Communities program warrant its negative psychological and developmental effects on families and children. First, consider that the estimated number of undocumented migrants in the U.S. as of 2016 is approximately 10.7 million. Also consider that, at most, ICE removes 200,000 to 300,000 undocumented migrants per year.31 One look at these numbers makes it evident that ICE is only scratching the surface in terms of removing undocumented migrants within the U.S. Being able to identify, detain, and remove a substantial portion of the 10.7 million

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JHULR | The Case for Expanding Removal Protections undocumented migrants living in the U.S. would take nothing short of a police state taking control of the country. Instead, it is much more logical to direct time, money, and resources to detaining and removing undocumented migrants who pose the greatest threat to public safety—i.e. reinstating PEP. While many argue that the purpose of Secure Communities is not to be effective at removing undocumented migrants but rather serve as a deterrent to keep away future undocumented migrants, there little evidence to suggest that this assertion is true. In fact, data from Pew Research estimates that the number of undocumented migrants was higher in 2010 (post-Secure Communities) than in 2015 (post-PEP).32 Reinstating PEP would be a relatively easy policy implementation that could extend removal priority protections to millions of undocumented migrants. Since only approval of the President’s administration and an initiative from the DHS is required to implement enforcement directives, reinstating PEP is a comparatively simple policy change to make. Moreover, since PEP is an enforcement program previously implemented, there is already an existing foundation and framework under which PEP can be reintroduced. Of course, the specific details of the program should be reconsidered and updated to reflect current challenges; however, the DHS and ICE would still not be required to develop an entirely new enforcement program. As mentioned previously, PEP is estimated to provide a degree of protection from deportation to 87 percent of unauthorized immigrants living in the United States.33 Undoubtedly, this would impact millions of U.S.-citizen children whose parents are undocumented, most likely leading to improvements in their psychological health and development.

On the other hand, the ease with which enforcement directives can be changed emphasizes the insufficiencies of relying on enforcement directives alone to guide immigration policy. Recalling that it only took President Trump five days to rescind PEP and reinstate Secure Communities, it is clear that PEP alone will not be enough to ensure removal protections for undocumented parents. Moreover, with the documentation status of their parents in constant limbo, children in mixed-status families will still likely experience psychological dysfunction and developmental problems. This is especially true given that PEP was introduced and removed within a short period of time, which has surely increased the mistrust mixed-status families have of government institutions and their fears of encountering law enforcement. As a result, reinstating DAPA should be the ultimate policy goal of future administrations. Hainmueller et al.’s study exemplified how implementing DACA greatly improved the mental health well-being of children who had undocumented mothers. By implementing DAPA (or a program like DAPA), one could expect to see similar improvements on a much larger scale. Although DAPA was originally intended to be implemented via an executive action, the subsequent legal battle shows that executive actions are not effective in introducing major immigration policy changes. The Supreme Court’s decision and opinion in United States v. Texas et al. exemplifies how the federal government is limited in its ability to implement

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JHULR | The Case for Expanding Removal Protections policies through federal agencies without having approval from lawmakers. For DAPA to have a chance at being successful, action has to come in the form of legislation via Congress— particularly through updating and/or replacing the Immigration Act of 1990. Considering that a key aspect of the arguments made by the states opposing DAPA appealed to the overextension of executive powers by President Obama and the DHS, a bill passed through Congress would address such concerns. Moreover, executive actions can be turned over, as recently seen with the Trump administration rescinding the DAPA in 2017. This further illustrates why formal legislation is crucial for DAPA to be implemented in a more permanent context.

Conclusion As the proportion of immigrants (both documented and undocumented) rises in the country, so too does the number of people who are impacted by immigration policies. With 5.1 million U.S. citizen-children living in mixed-status families, the issue of parental documentation status and children’s psychological wellbeing is one that the government cannot continue to ignore in the long term. Moreover, these children are U.S. citizens, meaning that the government has an obligation protect their health and well-being. Given the overwhelming amount of evidence suggesting parental documentation status negatively impacts their mental health and development, the government is falling short of meeting its obligations to these children. As discussed in this paper, the government has many avenues by which it can extend deportation protections to the undocumented parents of U.S.-citizen children (i.e. reinstating PEP and passing DAPA). Instead—as the situation currently stands— mixed-status families stay in the U.S. in legal limbo. Consequently, children with undocumented parents have to pay the price for the government’s unwillingness to recognize the legitimacy of their parent’s residency. As is evident through numerous research studies and strong empirical evidence, this price will come in the form worse developmental outcomes and increased depressive/anxious symptomology. However, the U.S. government does have the opportunity to make meaningful efforts to extend removal protections to undocumented parents and, by proxy, improve the mental health of their children.

Lidya Tadesse is a graduating junior at Johns Hopkins University, where she is

majoring in Public Health Studies with a minor in Psychology. Her interests include health and migration policy and law, specifically on how these impact access to health services and the overall health of migrant populations. In Fall of 2019, Lidya will be conducting research in Bern, Switzerland as a Fulbright grant awardee. Her research will examine the experiences of Ethiopian and Eritrean migrant women navigating through the Swiss healthcare system. The results of her research will be presented to Swiss lawmakers and health officials to better inform healthcare policies and initiatives impacting migrant populations.

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Notes 1

Batalova Zong et al., “Frequently Requested Statistics on Immigrants and Immigration in the United States,” Migration Policy Institute, March 14, 2019. 2 Ibid. 3 U.S. Immigration and Custom Enforcement, “Secure Communities, Crash Course,” Presentation, Washington, D.C., 2009 4 Ibid. 5 Jeh Johnson, Department of Homeland Security, “Secure Communities,” Memorandum, Washington, D.C., Nov. 20, 2014 6 Jeh Johnson, Department of Homeland Security. “Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants,” Memorandum, Washington, D.C., Nov. 20, 2014. 7 Marc Rosenblum, “Understanding the Potential Impact of Executive Action on Immigration Enforcement,” Migration Policy Institute, July 2015. 8 Exec. Order No. 13768, 3 C.F.R., Jan. 25, 2017. 9 “Separating Families at the Border: How We Got Here,” CBS News, June 18, 2018. 10 Janet Napolitano, Department of Homeland Security, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” Memorandum, Washington, D.C., June 15, 2012. 11 U.S. Citizenship and Immigration Services, “2014 Executive Actions on Immigration,” Webpage, Washington, D.C., 2014 12 Ibid. 13 Maame E. Austin and Krsna N. Avila, “United States v. Texas (15-674).” Legal Information Institute, April 18, 2016. 14 Ibid. 15 Todd Garvey, United States, Congressional Research Service, A Brief Overview of Rulemaking and Judicial Review, Washington, D.C., CRS, 2017: 2. 16 Jerry Smith, United States v. Texas. 787 F.3d 733 (2015). 17 Andrew Hanen, State of Texas et al. v. United States, CIVIL NO. B-14-254, (S.D. Tex. April 7, 2015): 4. 18 Ibid., 68. 19 Ibid., 69. 20 Brief for of Educators and Children’s Advocates as Amicus Curiae in Support of Petitioners, United States v. Texas, 787 F.3d 733 (2015): 6. 21 Aria Bendix, “Trump Rolls Back DAPA,” The Atlantic, June 16, 2017. 22 April S. Masarik and Rand D. Conger, “Stress and Child Development: A Review of the Family Stress Model,” Current Opinion in Psychology, 13, no.1 (2017): 85-90. 23 Hirokazu Yoshikawa and Ariel Kalil, “The Effects of Parental Undocumented Status on the Developmental Contexts of Young Children in Immigrant Families,” Child Developmental Perspective, 5, no. 4 (2011): 291-297. 24 Alexander N. Ortega et al., “Documentation Status and Parental Concerns about Development in Young US Children of Mexican Origin,” Academic Pediatrics, 9, no.4 (2009): 278-282. 25 Nancy Landale et al., “Behavioral Functioning Among Mexican-Origin Children: Does Parental Legal Status Matter?” Journal of Health and Social Behavior, 56, no.1 (2015): 2-18. 26 Jens Hainmueller et al., Science, 357, no. 6355 (2017): 1041-1044. 27 Qingwen Xu and Kalina Brabeck, “Service Utilization for Latino Children in Mixed-status Families,” Social Work Research, 36, no.3 (2012): 209-2111. 28 Edward D. Vargas, “Immigration Enforcement and Mixed-status Families: The Effects of Risk of Deportation on Medicaid Use,” Children and Youth Services Review, 57, no.1 (2015): 83-89.. 29 Marcella Alsan and Crystal Yang,“Fear and the Safety Net: Evidence from Secure Communities,” Stanford Institute for Economic Policy Research, June 2018: 1-30. 30 Ibid. 31 Gustavo López et al., “Key Findings About U.S. Immigrants.” Pew Research Center. 30 Nov. 2018. 32 Ibid. 33 Rosenblum, “Understanding the Potential Impact of Executive Action on Immigration Enforcement.”

Bibliography Alsan, Marcella and Yang, Crystal. “Fear and the Safety Net: Evidence from Secure Communities.” Stanford Institute for Economic Policy Research. June, 2018: 1-30. Austin, Maame E. and Avila, Krsna N. “United States v. Texas (15-674).” Legal Information Institute. 18 April 2016. https://www.law.cornell.edu/supct/cert/15-674. Bendix, Aria. Trump Rolls Back DAPA. The Atlantic, 16 June 2017. https://www.theatlantic.com/news/archive/2017/06/ trump-rolls-back-dapa-program/530571/. Blows, Stephanie, Ivers, Rebecca, Connor, Jennie, Ameratunga, Shanthi, Woodward, Mark, Norton, Robyn. “Unlicensed Drivers and Car Crash Injury.” Traffic Injury Prevention, 6, no.3 (2007):230-234. https://doi. org/10.1080/15389580590969175. Brabeck, Kalina, Sibley, Erin, Taubin, Patricia, Murcia, Angela. “The Influence of Immigrant Parent Legal Status on U.S.-Born Children’s Academic Abilities: The Moderating Effects of Social Service Use.” Applied Developmental Science, 20, no.4 (2015): 237-249. https://doi.org/10.1080/10888691.2015.1114420.

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JHULR | The Case for Expanding Removal Protections Exec. Order No. 13768, 3 C.F.R. (2017). Garvey, Todd. United States. Congressional Research Service. A Brief Overview of Rulemaking and Judicial Review. Washington, D.C.: CRS, 2017. Hainmueller, Jens, Lawrence, Duncan, Martén, Linna, Black, Bernard, Figueroa, Lucila, Hotard, Michael, Jiménez, Tomás R., Mendoza, Fernando, Rodriguez, Maria I., Swartz, Jonas J., Laitin, David D. Science, 357, no. 6355 (2017): 1041-1044. https://doi.org/10.1126/science.aan5893. Hanen, Andrew. State of Texas et al. v. United States. CIVIL NO. B-14-254, (S.D. Tex. Apr. 7, 2015). Johnson, Jeh. Department of Homeland Security. “Secure Communities,” Memorandum. Washington, D.C.. 2014 Nov. 20. https://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf. Johnson, Jeh. Department of Homeland Security. “Policies for the Apprhension, Detention, and Removal of Undocumented Immigrants,” Memorandum. Washington, D.C.. 2014 Nov. 20. https://www.dhs.gov/sites/default/files/ publications/14_1120_memo_prosecutorial_discretion.pdf. Landale, Nancy S., Hardie, Jessica H., Oropesa, R.S., Hillemeier, Marianne M. “Behavioral Functioning Among Mexican-Origin Children: Does Parental Legal Status Matter?” Journal of Health and Social Behavior, 56, no.1 (2015): 2-18. https://doi. org/10.1177/0022146514567896. López, Gustavo, Bialik, Kristen, Radford, Jynnah. “Key Findings About U.S. Immigrants.” Pew Research Center. 2018 Nov. 30. http://www.pewresearch.org/fact-tank/2018/11/30/key-findings-about-u-s-immigrants/. Masarik, Apirl S., Conger, Rand D. “Stress and Child Development: A Review of the Family Stress Model.” Current Opinion in Psychology, 13, no.1 (2017): 85-90. https://doi.org/10.1016/j.copsyc.2016.05.008 Napolitano, Janet. Department of Homeland Security. “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” Memorandum. Washington, D.C.. 2012 June 15. https://www.dhs.gov/xlibrary/ assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf. Ortega, Alexander N., Horwitz, Sarah M., Fang, Hai, Kuo, Alice A., Wallace, Steven P., Inkelas, Moira. “Documentation Status and Parental Concerns about Development in Young US Children of Mexican Origin.” Academic Pediatrics, 9, no.4 (2009): 278-282. https://doi.org/10.1016/j.acap.2009.02.007. Rosenblum, Marc R. “Understanding the Potential Impact of Executive Action on Immigration Enforcement.” Migration Policy Institute. July 2015. https://www.migrationpolicy.org/research/understanding-potential-impact-executive-action-immigration-enforcement. “Separating Families at the Border: How We Got Here.” CBS News. 2018 June 18. https://www.cbsnews.com/news/separating-families-at-the-border-how-we-got-here/ Smith, Jerry. United States v. Texas. 787 F.3d 733. (2015). U.S. Citizenship and Immigration Services. “2014 Executive Actions on Immigration.” Webpage, Washington, D.C., 2014. https://www.uscis.gov/archive/2014-executive-actions-immigration#1. U.S. Immigration and Custom Enforcement. “Secure Communities, Crash Course.” Presentation, Washington, D.C., 2009. https://www.ice.gov/doclib/foia/secure_communities/securecommunitiespresentations.pdf U.S. Immigration and Customs Enforcement. “Immigration Enforcement Actions: 2010.” Annual Report, Washington, D.C., 2010. https://www.dhs.gov/sites/default/files/publications/Enforcement_Actions_2010.pdf. U.S. Immigration and Customs Enforcement. “Fiscal year 2013 ICE Immigration Removals.” Annual Report, Washington, D.C., 2013. https://www.ice.gov/doclib/about/offices/ero/pdf/2013-ice-immigration-removals.pdf. U.S Immigration and Customs Enforcement. “Fiscal year 2017 ICE enforcement and removal operations report.” Annual Report, Washington, D.C., 2017. https://www.ice.gov/removal-statistics/2017. U.S. Immigration and Customs Enforcement. “Secure Communities, Standard Operating Procedures.” Operating Procedures, Washington, D.C.. https://www.ice.gov/doclib/foia/secure_communities/securecommunitiesops93009.pdf Vargas, Edward D. “Immigration Enforcement and Mixed-status Families: The Effects of Risk of Deportation on Medicaid Use.” Children and Youth Services Review, 57, no.1 (2015): 83-89. https://www.doi.org/10.1016/j. childyouth.2015.07.009. Xu, Qingwen and Brabeck, Kalina. “Service Utilization for Latino Children in Mixed-status Families.” Social Work Research, 36, no.3 (2012): 209-2111 https://doi.org/10.1093/swr/svs015 Yoshikawa, Hirokazu and Kalil, Ariel. “The Effects of Parental Undocumented Status on the Developmental Contexts of Young Children in Immigrant Families.” Child Developmental Perspective, 5, no. 4 (2011): 291-297. https://doi.org/10.1111/ j.1750-8606.2011.00204.x. Zong, Jie, Batalova, Jeanne, Burrows, Micayla. “Frequently Requested Statistics on Immigrants and Immigration in the United States.” Migration Policy Institute. 14 March 2019. https://www.migrationpolicy.org/article/frequently-requested-statistics-immigrants-and-immigration-united-states

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Editor-in-Chief Kiana Boroumand Managing Editor Jackson Zebovitz

Directors Public Relations Sarina Redzinski Yeji Kim

Finance Anthony Boutros Ian Elliott

Marketing Lidya Tadesse

Programming Hannah Stone

Hayley Bronner

Riya Rana

Ian Elliott

Samuel Richter

Gabriela Hubner

Destiny Staten

Riya Jain

Hannah Stone

Yeji Kim

Sabrina Sussman

Alexandra Krickovich

Laura Wadsten

Staff Writers Aashik Bhalodia

Sarina Redzinski

Austin Cardona

Emily Steirman

Lyle Carrera

Lidya Tadesse

Robert Cortes

David Taylor

Ian Elliott

Andrea Thurnheer

Irfan Jamil

Ben Treutler

Asma Khan

Laura Wadsten

Lance Kotler

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Daniel Matthew

Patty Zhang

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