SPRING 2026 VOL 7
JOHNS HOPKINS UNDERGRADUATE LAW REVIEW
Editorial Board Editor-in-Chief Ben Casino
• Managing Editor Siddharth Dhadi
Director of Publications Jessica Van Tassel Director of Graphic Design Sasha Kapur
EDITED BY,
Ben Casino, Editor-in-Chief
Editor’s Note Dear Readers,
JHULR EDITORIAL TEAM
I am thrilled to present the Spring 2026 edition of the Johns Hopkins Undergraduate Law Review (JHULR) (Volume 7). This issue features undergraduate scholarship spanning health care law, constitutional law, and environmental law. I hope this year’s curated selection inspires thoughtful dialogue that furthers the Review’s founding ethos. It is also my pleasure to introduce the team behind this issue. I sincerely thank our writers and editors for producing and refining the articles showcased here. This edition reflects the breadth and rigor of undergraduate legal scholarship at Johns Hopkins and beyond, confronting emerging challenges in constitutional law, administrative justice, and bioethics. The papers in this issue examine the law at its most consequential intersections—between health and regulation, equality and due process, and governance and executive power. Collectively, they demonstrate how constitutional and statutory frameworks shape real-world outcomes, and how student scholars can meaningfully contribute to those conversations. I am especially thankful our executive team for helping coordinate the production of this issue; to Jessica Van Tassel, Director of Publications, for guiding the editorial process; My thanks also go to all contributors for their intellectual ambition and to our editorial staff for their dedication in upholding the Review’s standards of clarity, depth, and integrity. Finally, I wish nothing but the best for next year’s Editor, Siddharth Dhadi to carry on the JHULR tradition. Serving for the 2025-206 term has truly been an incredible honor. Sincerely, Ben Casino Editor-in-Chief, JHULR
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Ben Casino Editor-in-Chief Siddharth Dhadi Managing Editor Jessica Van Tassel Director of Publications Sasha Kapur Director of Graphic Design
Table of Contents Editor’s Note
2
Telehealth After the Pandemic: Why the DEA’s New Rules Fall Short of Evidence-Based Policymaking — Arya Narendra
4
The Organ Transplant System and the Law: Violations of Due Process and Equal Protection — Siddharth Dhadi
10
Trump v. Slaughter and the Unitary Executive Theory: Reconsidering Humphrey’s Executor — Bryce Leiberman
15
Glossip v. Oklahoma: Due Process, False Testimony, and the Bounds of Prosecutorial Power — Clare Levine
21
Greenwashing: Endangered by Rescindment of Endangerment Finding? — Jemima Schoen
27
Villarreal v. Texas and the Sixth Amendment Right to Counsel — Kiran Sabharwal Sources
36 38
Hors de Combat: How the September 2 Strike Violated America’s Own Laws of War — Bryce Leiberman
40
Mirabelli v. Bonta: Public School’s Right to Conceal Gender Transition — Emilia Kim
44
The Limits of Protection: Deceptive Commercial Speech and Crisis Pregnancy Centers — Veda Kommineni
49
The Associated Press v. Budowich — Honora Muratori
57
The Constitutional Right to a Healthy Environment: Held v. Montana — Aishani Garg
64
A Lifetime Sentence: Intimate Partner Violence as a Reentry Risk for Female Offenders — Hallie Sternblitz
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Telehealth After the Pandemic: Why the DEA’s New Rules Fall Short of Evidence-Based Policymaking Written by Arya Narendra • Edited by Sasha Kapur
A laptop displays lines of code.
Abstract: This article evaluates the DEA’s January 2025 telemedicine rules for remote prescribing of controlled substances. It argues that blanket restrictions—especially the universal six-month in-person requirement and categorical limitations on Schedule II initiation—risk undermining access without clear evidence of improving safety, raising concerns under the Administrative Procedure Act and federalism principles. In early 2025, the Drug Enforcement Administration (DEA) unveiled a set of telemedicine rules governing the remote prescribing of controlled substances. Long awaited, these regulations PAGE 4
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come five years after the COVID-19 pandemic, which had introduced unprecedented flexibility that enabled millions of Americans to receive healthcare virtually. The new set of rules is framed as a compromise between two imperatives: preventing the diversion of controlled substances and preserving patient access to treatment [1]. Yet the underlying question remains whether the DEA’s new telemedicine restrictions reflect a permissible exercise of that authority under the statutes Congress enacted. This question frames the paper’s central inquiry: whether the postpandemic regulatory order appropriately balances enforcement with patient access, or whether it imposes bureaucratic constraints that lack sufficient justification. The legal foundation of the DEA’s rulemaking rests on the Controlled Substances Act (CSA) [2] and the Ryan Haight Online Pharmacy Consumer Protection Act of 2008 [3]. The CSA establishes the DEA’s basic authority over controlled substances, authorizing the agency to “register and regulate the manufacture, distribution, and dispensing” of scheduled drugs (21 U.S.C. § 801 et seq.). Under 21 U.S.C. § 829, the CSA requires that controlled substances be dispensed pursuant to “a valid prescription,” defined as one “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice” [4]. This statutory scheme gives the DEA broad authority over how controlled substances are prescribed, but not the authority to make independent medical judgments. The Ryan Haight Act amended the CSA to specifically regulate online prescribing, adding that no controlled substance may be dispensed “by means of the Internet” without at least one in-person medical evaluation (21 U.S.C. § 829(e)(1)) [5]. It defines an in-person evaluation as a medical examination conducted with “the patient in the physical presence of the practitioner” (21 U.S.C. § 802(54)(A)) [6]. However, the law also gives the DEA explicit authority to create exceptions through a “special registration for telemedicine” (21 U.S.C. § 802(54)(D)) [5], a mechanism Congress established but left to the DEA to implement. This special registration authority is the statutory hook the DEA used to justify its pandemic-era flexibilities. For the first time, patients with conditions such as ADHD, anxiety, and opioid use disorder could access their essential medication without geographic barriers. When the public health emergency lapsed in May 2023, the temporary regulations were set to expire. The DEA responded with temporary extensions through 2025 while it drafted permanent rules. In January 2025, the DEA announced its final telemedicine regulations: clinicians may prescribe certain Schedule III–V drugs (drugs the CSA classifies as having accepted medical uses and lower abuse potential than drugs such as buprenorphine, ketamine formulations, and benzodiazepines) via telehealth without an in-person visit for up to six months [7]. After that period, patients must meet the prescriber in person or transition to a provider with “special registration authority.” Under the Ryan Haight Act, this special registration category was designed to allow certain practitioners who meet enhanced verification, monitoring, and reporting standards to prescribe controlled substances via telemedicine without an in-person examination [8]. The DEA deemed this approach a measured framework that balances access and safety [1]. But the rules’ complexity and limited scope have sparked widespread concern among patients, healthcare providers, and policy advocates. From a legal standpoint, the DEA’s framework raises significant questions under the Administrative Procedure Act (APA). The APA PAGE 5
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requires agency rules to be the product of reasoned decision making supported by evidence and responsive to stakeholder concerns [15]. Yet many commenters, including the American Hospital Association (AHA) and the American Telemedicine Association (ATA), argued that the DEA failed to meaningfully account for the reliance interests of providers and patients who have used telehealth safely for years [9]. The final rule mandates that all new telemedicine patients who receive Schedule III–V prescriptions must obtain an in-person visit within six months, regardless of clinical appropriateness, patient history, or continuity of care. It also categorically prohibits the initiation of Schedule II prescriptions via telemedicine under any circumstances. However, the DEA’s explanation for these blanket restrictions is limited to generalized concerns about diversion, without addressing evidence showing that telehealth prescribing during the pandemic did not meaningfully increase diversion or overdose risk [10]. The DEA did not (1) cite empirical data showing that a universal six-month in-person requirement improves safety outcomes; (2) evaluate the evidence from Medicare, Medicaid, or SUD treatment studies demonstrating stable or decreased overdose rates under telehealth flexibilities [11]; or (3) consider the reliance interests of the millions of patients who maintained continuity of care through virtual prescribing [12]. Such omissions could render the rule arbitrary, particularly because less restrictive alternatives—such as targeted monitoring and post-prescription verification—were available then and remain available now. The DEA’s post-pandemic telehealth framework raises questions about whether the agency exercised its discretion reasonably. On paper, it reflects legitimate law-enforcement goals: preventing diversion, curbing abuse, and ensuring oversight of controlled substances. However, the rules impose new barriers that threaten to undo the progress that virtual care achieved during the pandemic. During the pandemic, telehealth was not a luxury, but a necessity. Remote prescribing allowed individuals with ongoing treatment needs to maintain continuity of care and enabled rural communities or patients with mobility issues to access specialists that were otherwise out of reach. By narrowing these flexibilities, the DEA has chosen regulatory caution over medical pragmatism. The agency’s decision to limit non-in-person prescriptions to six months, regardless of clinical need, appears to be less grounded in evidence than in fear of diversion and overdose. Pandemic-era studies of telehealth care for opioid use disorder among Medicare beneficiaries found that receipt of telehealth services was associated with improved retention on medications for opioid use disorder and lower odds of medically treated or fatal overdose [13]. In light of this evidence, a rigid six-month cap that does not distinguish among medications, diagnoses, or patient histories risks functionally reducing access to clinically appropriate treatment for the populations most vulnerable to overdose. The DEA’s actions also raise federalism concerns. Healthcare delivery and medical licensure have historically fallen under state authority, yet the DEA’s strict national standards override state-level innovations that successfully integrate telehealth into addiction treatment. States like Washington, New York, and California have already developed robust telehealth infrastructure that depends on flexible prescribing authority, the very flexibility that the DEA has taken away [14]. This preemption conflict essentially forces providers to choose between federal and state compliance, an inconsistency that not only disrupts care but also undermines state-level public health strategies. PAGE 6
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The ethical implications are equally significant. Limiting telemedicine prescribing for controlled substances disproportionately affects patients in rural, low-income, and disabled communities. Requiring an in-person visit may be trivial for an urban patient with reliable transportation; it can be insurmountable for someone who lives hundreds of miles from a prescriber or who is struggling with mobility issues. These barriers risk exacerbating existing health disparities. In this light, the DEA’s invocation of “safety” is paradoxical: a rule designed to protect U.S. citizens from drug misuse and overdose could instead deny them the very care it purports to protect. The DEA’s post-pandemic telehealth rulemaking is a referendum on the future of healthcare regulation. The agency’s statutory authority under the Controlled Substances Act and Ryan Haight Act was meant to safeguard patients, not constrain access to legitimate care. Its current trajectory blurs this distinction by prioritizing enforcement over evidence. If telemedicine is to fulfill its promise of equitable healthcare access, federal agencies like the DEA must choose innovation over obstruction. The DEA’s framework should be revisited, either by Congress through legislative clarification or by the courts through APA review, to ensure regulatory vigilance does not devolve into regulatory paralysis. The balance between preventing abuse and diversion of controlled substances and enabling care is not a zero-sum equation. It is a test of whether federal governance can evolve alongside the medicine it oversees.
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References [1] Drug Enforcement Administration. “DEA Announces Three New Telemedicine Rules That Continue to Open Access to Telehealth Treatment While Protecting Patients.” DEA, 16 Jan. 2025, https://www.dea.gov/press-releases/2025/01/16/dea -announces-three-new-telemedicine-rules-continue-open-acc ess. [2] Drug Enforcement Administration. The Controlled Substances Act (CSA). n.d., https: //www.dea.gov/drug-information/csa. [3] United States Congress. H.R. 6353 — Ryan Haight Online Pharmacy Consumer Protection Act of 2008. 110th Congress, Congress.gov, 15 Oct. 2008, https://www.cong ress.gov/bill/110th-congress/house-bill/6353. [4] “21 U.S. Code § 801 – Congressional Findings and Declarations: Controlled Substances.” Legal Information Institute, Cornell Law School, https://www.law.cornell. edu/uscode/text/21/801. [5] “Controlled Substance Definition.” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/definitions/uscode.php?def_id= 21-USC-731844952-1668295432. [6] “21 U.S. Code § 802 – Definitions.” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/uscode/text/21/802. [7] Drug Enforcement Administration. Drug Scheduling. https://www.dea.gov/dr ug-information/drug-scheduling. [8] “Special Registrations for Telemedicine and Limited State Telemedicine Registrations.” Federal Register, 17 Jan. 2025, https://www.federalregister.gov/docu ments/2025/01/17/2025-01099/special-registrations-for-tel emedicine-and-limited-state-telemedicine-registrations. [9] American Hospital Association. “AHA Requests Flexibility Extension from HHS and DEA on Telemedicine Prescribing.” 4 Oct. 2024, https://www.aha.org/2024 -10-04-aha-requests-flexibility-extension-hhs-dea-telemed icine-prescribing. [10] Cunningham, Christopher O., et al. “Expanding Access to MOUD via Telemedicine: Evidence from Pandemic-Era Flexibilities.” NCBI, 2023, https://pmc.ncbi.nlm .nih.gov/articles/PMC11199907/.
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[11] Uscher-Pines, Lori, et al. “Telehealth for Mental Health and Substance Use Disorder Care: Post-Pandemic Lessons.” NCBI, 2024, https://pmc.ncbi.nlm.nih.gov /articles/PMC11978320/. [12] Krawczyk, Noa, et al. “Impact of Telehealth Flexibilities on Opioid Use Disorder Treatment.” NCBI, 2023, https://pmc.ncbi.nlm.nih.gov/articles/PMC113 82601/. [13] Huskamp, Haiden A., et al. “Use of Telemedicine for Buprenorphine Induction During COVID-19.” JAMA Psychiatry, vol. 79, no. 1, 2023, https://jamanetwork.com/ journals/jamapsychiatry/fullarticle/2795953. [14] “Telehealth and In-Person Visits: Tracking Federal and State Updates since the Pandemic.” National Law Review, https://natlawreview.com/article/telehealt h-and-person-visits-tracking-federal-and-state-updates-p andemic-era. [15] Congressional Research Service. Telehealth and Controlled Substances: Policy Overview and Current Issues. LSB10558, https://www.congress.gov/crs-product /LSB10558.
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The Organ Transplant System and the Law: Violations of Due Process and Equal Protection Siddharth Dhadi, Managing Editor of JHULR
A stethoscope rests atop a medical chart.
Abstract: This article argues that widespread “out-of-sequence” organ allocations—skipping higher-priority patients on national waitlists—conflict with the National Organ Transplant Act and OPTN regulations, and may implicate Administrative Procedure Act review as well as constitutional due process and equal protection principles. Fifteen-year-old Marcus Edsall-Parr has been on the waiting list for a kidney transplant for a decade. After ten years of missed classes, forgone sports, restrictive diets, and thrice-weekly dialysis sessions, his doctors informed him that they had found a match and that he was first in line PAGE 10
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to receive a kidney. However, the kidney instead went to a middle-aged man 3,557 spots down the line [1] . To prevent such unfairness, the National Organ Transplant Act (NOTA) of 1984 established the Organ Procurement and Transplantation Network (OPTN) to ensure equitable allocation of organs, overseen by the Department of Health and Human Services (HHS) and operated by the United Network for Organ Sharing (UNOS). Furthermore, the act mandates a national system for organ allocation based on medical need and fairness, with UNOS as the federal contractor [2] . The resulting OPTN Final Rule, codified in 1998 in the Code of Federal Regulations, requires organs to be allocated based on objective medical criteria (e.g., urgency, compatibility) rather than arbitrary factors [3] . Collectively, these laws and codes sought to emphasize transparency and accountability in the organ allocation process. Yet, today, the organ transplant system is characterized by a malignant deviation from its legal mandate under NOTA and OPTN regulations, violating federal administrative law, due process under the 5th Amendment, and equal protection under the 14th Amendment, necessitating comprehensive legal reform. The organ transplant system was designed to prioritize fairness and ensure that donated organs are allocated to the patients who need them most, based on a national registry and strict federal rules. This registry is managed by UNOS, the federal contractor overseeing the transplant system. Patients awaiting organs (e.g., kidneys, livers, hearts, lungs) are ranked on waiting lists based on factors such as medical urgency, compatibility, and time spent waiting. The sickest patients are prioritized to receive organs first. Every state has at least one nonprofit organ procurement organization (OPO), which is responsible for identifying potential donors, recovering organs from deceased donors, and distributing them to patients. When an organ becomes available, the OPO uses an algorithm to generate a prioritized list of potential recipients, tailored to each organ based on compatibility and medical need. The OPO offers the organ to the doctor of the first patient on the list. If the doctor accepts, the organ is allocated to that patient. If the doctor declines, for instance, due to factors like donor age or organ size, the OPO moves to the next patient on the list. This process continues sequentially, with the OPO working down the list until a doctor accepts the organ for their patient. The goal of this highly organized, federally mandated system is to ensure the organ goes to the highest-ranked, compatible patient. Historically, deviations from the waiting list, known as out-of-sequence allocations, were rare and permitted only as a last resort to prevent an organ from going to waste—for instance, when an organ was about to deteriorate. Such deviations were reviewed by UNOS and a peer review committee to ensure compliance with federal codes and principles of fairness. Since organs have limited viability outside the body (kidneys can remain viable for up to 48 hours), the allocation process is designed to place organs within this window, prioritizing nearby patients to minimize transport time. However, OPO officials are increasingly ignoring the official rankings, skipping over hundreds or even thousands of higher-priority patients when distributing kidneys, livers, lungs, and hearts [1] . These organs often go to recipients who are less critically ill, have waited far less time, or—in some cases—are not even on the transplant list. In fact, 20% of transplants skipped the waiting list in the last year, up from merely 3–4% a few years ago. At the same time, more than 1,200 patients near the top of the lists have died after being skipped over in the past five years. Under PAGE 11
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congressional pressure to distribute more organs, the nonprofit organizations that oversee donations routinely prioritize convenience over fairness. They employ shortcuts to direct organs to preferred hospitals, which then compete for better access—often at the expense of equity [1] . Such misguided allocation, however, violates federal administrative law. The organ transplant system’s widespread bypassing of prioritized waiting lists breaches the National Organ Transplant Act (NOTA) and the OPTN Final Rule [3] , which mandate equitable allocation based on medical need and transparency. Indeed, the United Network for Organ Sharing (UNOS), tasked with enforcing these rules, has acted arbitrarily and capriciously under the Administrative Procedure Act of 1946 [4] by failing to curb out-of-sequence allocations (19% of transplants last year), tolerating undocumented “open offers,” and closing over 99.5% of cases without action, despite evidence of disparities and patient deaths (e.g., over 1,200 skipped near the top of lists). The Department of Health and Human Services (HHS) under President Biden, responsible for overseeing UNOS, has neglected its NOTA duty, allowing systemic drift to continue until intervention finally came in 2025 under the new administration, and has failed to address the pressures driving OPOs to prioritize expediency over fairness. Beyond violating federal law, this allocation failure undermines public trust, exacerbates inequities such as those favoring white and Asian patients [1] , and necessitates urgent reforms, such as stricter oversight, limits on open offers, and enhanced transparency, to restore the system’s integrity. The organ transplant system’s misallocation also likely violates the Due Process Clause of the Fifth Amendment, as applied to federal actions through Bolling v. Sharpe, which established that the federal government must adhere to due process principles akin to those required of states under the Fourteenth Amendment [5] . In Bolling v. Sharpe, the U.S. Supreme Court held that racially segregated public schools in Washington, D.C., violated the Fifth Amendment’s Due Process Clause. Decided on the same day as Brown v. Board of Education, this pivotal ruling affirmed that the federal government is bound by constitutional prohibitions on discrimination [6] . Accordingly, by systematically bypassing prioritized waiting lists (20% of transplants last year), UNOS and OPOs deprive patients like Marcus Edsall-Parr of a fair opportunity to receive life-saving organs, undermining procedural due process. This arbitrary deviation from the OPTN Final Rule of 1998 [3] lacks transparent justification, denies patients notice or a chance to contest being skipped, and results in unequal treatment, disproportionately harming non-white, non-Asian, and less-educated patients [1] . In Goldberg v. Kelly, the Supreme Court held that due process requires fair procedures when terminating critical benefits, a principle applicable to organ allocation given its life-or-death stakes [7] . Combined, these precedents should be used to fight unfair organ transplant practices by private hospitals in conjunction with OPTNs, which are under direct federal control. This federal control of OPTN through HHS discredits any argument that private nonprofits (organ procurement organizations) at the state level cannot be held to due process standards; such oversight mandates due process protections guaranteed by our Constitution. The organ transplant system’s misallocation also potentially violates the Equal Protection Clause of the Fourteenth Amendment, which prohibits states from denying any person equal protection under the law. By bypassing prioritized waiting lists in 20% of transplants, OPOs and UNOS disproportionately allocate organs to white, Asian, and PAGE 12
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college-educated patients, exacerbating racial and socioeconomic disparities [1] . This discriminatory impact, favoring certain groups over others without a compelling justification under strict scrutiny, contravenes equal protection principles. In Grutter v. Bollinger, the Supreme Court emphasized that racial classifications must serve a compelling state interest and be narrowly tailored. Applied here, bypassing waitlists lacks a legitimate basis and unfairly harms marginalized groups [8] . Similarly, Yick Wo v. Hopkins established that unequal application of facially neutral laws violates equal protection when it results in discriminatory outcomes, as seen in the transplant system’s skewed allocations [9] . Under this reasoning, even if the allocation is algorithmically managed, it cannot, under Yick Wo, lead to disproportional benefit or harm to certain groups. Ultimately, the failure to address these disparities, despite evidence since 2022, suggests a systemic denial of equal protection under the law on the part of the organ allocation system. Together, the violations of federal administrative law, the Due Process Clause, and the Equal Protection Clause should be used to litigate against illegal organ donation schemes. As a society, as we progress and cure diseases and medical maladies previously thought impossible, we must take a step back and ensure they provide equal treatment under law.
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References [1] https://www.nytimes.com/interactive/2025/02/26/us/organ-t ransplants-waiting-list-skipped-patients.html [2] 42 U.S.C. §274 [3] 42 C.F.R. §121 [4] 5 U.S.C. §706 [5] Bolling v. Sharpe, 347 U.S. 497 (1954) [6] Brown v. Board of Education, 347 U.S. 483 (1954) [7] Goldberg v. Kelly, 397 U.S. 254 (1970) [8] Grutter v. Bollinger, 539 U.S. 306 (2003) [9] Yick Wo v. Hopkins, 118 U.S. 356 (1886)
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Trump v. Slaughter and the Unitary Executive Theory: Reconsidering Humphrey’s Executor Bryce Leiberman
The Supreme Court building stands beneath a clear sky.
Abstract: This article examines the attempted removal of FTC Commissioner Rebecca Slaughter and the resulting constitutional questions about the President’s power to remove officials in independent agencies. It situates the dispute in the separation-of-powers framework of Humphrey’s Executor and later cases, and explores how a Supreme Court merits ruling could reshape administrative governance. The executive branch has undergone significant change under Donald Trump’s presidency. Namely, his recent attempted firing of Federal Trade Commissioner Rebecca Slaughter has sparked PAGE 15
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controversy regarding the executive power to remove unelected bureaucrats from office [1]. Slaughter’s dismissal, in turn, raises questions about the Unitary Executive Theory—a contemporary political theory granting the president complete control of the executive branch, along with fewer checks from Congress. Additionally, the value of independent agencies and their unelected bureaucracies has been called into question, with Democrats emphasizing the necessity of preserving these organizations. The case raises fundamental questions about Humphrey’s Executor v. United States, a Roosevelt-era decision that limited the president’s power to fire officials in independent governmental agencies [2]. With many recent signs pointing to the overturning of the rule, the conservative Supreme Court majority may have the votes and the power necessary to usher in a new era, expanding executive power in favor of a more potent, aggressive presidential role. The attempted firing of Rebecca Slaughter and fellow FTC Commissioner Alvaro Bedoya, which later resulted in an arguably forced resignation in March, was met with widespread criticism from the Democratic Party. Amidst Trump’s firings of top governmental officials from independent organizations such as the Consumer Product Safety Commission, the president’s opponents view his actions through the lens of presidential overreach [3]. Opponents view the removal of officials for seemingly no reason other than the president’s dislike as a constitutional breach, and Slaughter’s case will be heard by the Supreme Court, where a conservative majority is primed to uphold the removal. The president was accused of violating the precedent in Humphrey’s Executor [4] because firing Slaughter without offering evidence of demonstrable poor behavior exceeds the president’s limited jurisdiction over independent executive agencies created by Congress. Despite a lower federal court’s ruling ordering Slaughter’s reinstatement, the Supreme Court granted Trump’s application for a stay, meaning that she will remain fired until the Court hears the case in December [5]. Decided unanimously in 1935, Humphrey’s Executor arose from former president Franklin D. Roosevelt’s firing of FTC commissioner William Humphrey. A vehement opponent of Roosevelt’s New Deal policies, Humphrey became a target for his conservative views, and his refusal to resign escalated tensions with the former president. After his death a couple of years later, Humphrey’s executor sued over his lost salary, eventually winning the case on the grounds of Roosevelt’s illegitimate firing. The court ruled that the president is not constitutionally granted “illimitable power of removal” [6]. Furthermore, the FTC was established by Congress to carry out quasi-legislative and quasi-judicial functions. Consequently, the Court ruled that the president’s executive authority does not extend to the FTC, reaffirming that the president cannot remove members of independent agencies from power. The precedent set both maintains the separation of powers and places a restraint on the president’s ability to act as an unparalleled source of control within the government. The conservative perspective on Trump v. Slaughter is predicated on reducing the administrative state. Taking issue with prior precedent, many on the right view unelected bureaucrats as a negative presence in government. As the government expands, the president becomes less powerful and less able to effect change, which is viewed as a limiting factor in our political system’s efficiency. Conservatives argue that it is contradictory for the president to have the authority to fire officials of congressionally created agencies without the power to actually remove them from office. Additionally, recent cases, such PAGE 16
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as Seila Law v. CFPB [7], have narrowed the scope of Humphrey’s Executor. This 2020 decision expanded presidential power by restricting Humphrey’s to agencies without ‘substantial federal power’ as well as agencies with multimember commissioners. The conservative majority revised the original precedent without fully repealing the case itself. In sum, granting Trump the ability to fire officials of independent government agencies would increase accountability while decreasing the size of government, rendering a repeal of Humphrey’s Executor a welcome outcome in the eyes of America’s political right. In contrast, the Democratic view holds greater respect for the role of independent commissions in advancing public interest. Many on the political left believe that repealing Humphrey’s precedent would allow the president carte blanche to install loyalists for personal gain [8]. Corruption would run rampant, and Democrats believe that a more powerful president would be detrimental to the functioning of political processes. Overruling Humphrey’s would align with the unitary executive theory, which holds that the president should have complete control of the federal bureaucracy. The unitary executive theory was once considered a radical idea, yet it has become increasingly popular among mainstream Republicans during the Trump era. Accordingly, Democrats see it as a serious risk that the public interest may be jeopardized by an executive who may be self-interested and motivated by partisan bias. Slaughter v. Trump is, in effect, a microcosm of the Trump presidency. While the Republican right advocates for shrinking the size of government in favor of granting the president more power, Democrats have a more positive view of independent agencies, in addition to a desire to maintain the current role of the executive branch. It is inarguable that Donald Trump’s use of presidential power is aggressive. After Trump attempted to suppress late-night hosts Stephen Colbert and Jimmy Kimmel, even conservative officials such as Ted Cruz have criticized his actions, claiming that the precedents set by the president swing both ways [9]. Kimmel’s remarks regarding the late conservative political commentator Charlie Kirk drew the ire of many on the right and likely caused Trump and his allies to threaten action against ABC [10]. Similarly, Colbert’s criticism of Paramount’s settlement with Trump directly preceded what many viewed as a politically motivated cancellation of The Late Show [11]. Evidently, the president’s use of unilateral power has expanded beyond independent congressional agencies and into the realm of media. This should be troubling not only because it is constitutionally prohibited, but also because it fits a pattern of Trump’s presidential overreach. The decision to allow the attempted firing of Rebecca Slaughter is a step toward repealing Humphrey’s Executor. As the Supreme Court prepares to hear oral arguments on the original case, it seems likely that the Court will finally overturn the nearly century-old decision in Humphrey’s. At such a critical juncture in American politics, allowing the executive’s role to expand will cause untold harm to the government’s efficiency. During a time when hyper-partisanship pervades politics, allowing the president to remove governmental officials at will offers insight into how Trumpism has shaped the executive branch, making a more potent president not only a possibility, but a guarantee. A repeal of Humphrey’s will allow the president to act solely in his own interest without being subject to any checks or balances. Further, the repeal will blur the line between branches of government, giving the president authority over entities with quasi-judicial and quasi-legislative functions. Looking PAGE 17
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forward, public concerns regarding the heightened power of the executive revolve around the prospect of a more tyrannical Donald Trump, or any future elected leader, wielding it. In effect, this would marginalize whichever party is in the minority, rendering American governance increasingly unaccountable to the needs of the general populace, given the excess power of the majority party. Regardless of platform, party ideology, or partisanship, granting the president the ability to remove officials from independent agencies will inflict lasting damage on the collective public good, and the likely repeal of Humphrey’s Executor would achieve just that.
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References [1] “Supreme Court Allows Trump to Fire Democratic Member of Trade Commission.” Politico, Sept. 22, 2025. https://www.politico.com/news/2025/09/22/s upreme-court-ftc-trump-firing-00575714. [2] von Spakovsky, Hans A. “Humphrey’s Executor Case Shouldn’t Survive the Trump Presidency.” Heritage Foundation, Sept. 24, 2025. https://www.heritage.org /node/25159089. [3] Upadhyay, Brajesh. “US Supreme Court Ruling Lets Trump Fire Top Official on FTC.” BBC News, Sept. 22, 2025. https://www.bbc.com/news/articles/c1kw08 2djn4o. [4] Scarcella, Mike. “US Judge Orders Trump to Reinstate Fired Product Safety Commissioners.” Reuters, June 13, 2025. https://www.reuters.com/world/us/u s-judge-orders-trump-reinstate-fired-product-safety-commi ssioners-2025-06-13/. [5] Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935). [6] “U.S. Supreme Court Grants Stay Enabling Removal of Rebecca Kelly Slaughter as FTC Commissioner and Will Revisit Separation of Powers.” Hunton Andrews Kurth LLP, Sept. 25, 2025. https://www.hunton.com/privacy-and-information -security-law/u-s-supreme-court-grants-stay-enabling-remov al-of-rebecca-kelly-slaughter-as-ftc-commissioner-and-wil l-revisit-separation-of-powers. [7] Oyez. “Humphrey’s Executor v. United States (1935).” Accessed Sept. 28, 2025. https: //www.oyez.org/cases/1900-1940/295us602. [8] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). [9] “What Is Humphrey’s Executor and Why Should You Care About It?” Center for American Progress. https://www.americanprogress.org/article/what-i s-humphreys-executor-and-why-should-you-care-about-it/. [10] Martin, Jonathan. “Ted Cruz, Jimmy Kimmel, Free Speech, FCC.” Politico Magazine, Sept. 23, 2025. https://www.politico.com/news/magazine/2025/09 /23/ted-cruz-jimmy-kimmel-free-speech-fcc-00576587. [11] NPR. “Kimmel Suspension, Charlie Kirk, Death & Free Speech Censorship.” Sept. 18, 2025. https://www.npr.org/2025/09/18/nx-s1-5545671/kimmel-s uspension-charlie-kirk-death-free-speech-censorship. PAGE 19
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[12] The Georgetown University Free Speech Project. “Stephen Colbert’s Late Night Show Canceled, Sparking Accusations of Political Censorship; Jimmy Kimmel Incident Adds Fuel to the Fire.” Accessed Nov. 3, 2025. https://freespeechproject.ge orgetown.edu/tracker-entries/stephen-colberts-late-night -show-canceled-sparking-accusations-of-political-censorshi p-jimmy-kimmel-incident-adds-fuel-to-the-fire/.
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Glossip v. Oklahoma: Due Process, False Testimony, and the Bounds of Prosecutorial Power Clare Levine
A statue of Lady Justice holds her scales aloft.
Abstract: This note analyzes the Supreme Court’s 2025 decision in Glossip v. Oklahoma, focusing on prosecutorial obligations to correct false testimony under Napue v. Illinois and the due process implications of credibility-related falsehoods. It concludes by assessing the prospects for a new trial and why transparency obligations remain central to fair adjudication. False testimony provided in the 1997 murder case Glossip v. Oklahoma resulted in a conviction on behalf of the defendant, Richard Glossip, thus resulting in years of prison time and multiple PAGE 21
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independent investigations [1]. The case Glossip v. Oklahoma entails the murder of motel owner Barry Van Treese and the murder conviction of then-hotel manager Richard Glossip based on the false testimony of Justin Sneed, a handyman at the hotel [2]. Sneed falsely denied his mental health history, information that could have weakened his credibility as a witness. The false testimony is the centerpiece of the Supreme Court case. This case was argued before the Supreme Court of the United States (SCOTUS) in 2024 and asked whether the state of Oklahoma could proceed with Glossip’s execution despite the prosecutorial misconduct at the initial trial. The Supreme Court held that the initial conviction was unlawful because the prosecution knowingly failed to correct Sneed’s false testimony. Thus, SCOTUS vacated the initial decision and granted Glossip a new trial. However, a new trial does not guarantee an easy path forward for Glossip — the Oklahoma Attorney General has made clear that he still believes in Glossip’s guilt despite the violations that occurred at the initial trial, and intends to pursue a new trial on a first-degree murder charge, this time without seeking the death penalty [3]. Glossip v. Oklahoma illustrates the complexity of criminal appeals, as the retrial still relies on the charges and evidence from the original trial nearly 30 years ago, minus the inaccurate testimony [4]. This paper will analyze SCOTUS’s decision, past precedent, relevant implications of the 5th and 14th Amendments, and what may come next for Glossip. The central issue in this case is that the prosecution knew its witness, Justin Sneed, had provided false testimony yet failed to correct it, leading to Glossip’s murder conviction, 26 years in prison, nine execution dates, and investigations that raised doubt about his conviction. Sneed testified that he killed Van Treese at Glossip’s instruction, “in exchange for $10,000” from Glossip [4]. Sneed, considered the prosecution’s star witness, received a life sentence, while Glossip received the death penalty for ordering the hit. When asked whether he had ever received mental health treatment or seen a psychiatrist, Sneed said no, and the prosecution did not correct him. In reality, Sneed had previously been diagnosed with bipolar disorder and prescribed lithium, facts he denied during the trial. Sneed’s testimony was the “only direct evidence of Glossip’s guilt of capital murder,” and thus his credibility (in the eyes of the prosecution) needed to be protected [5]. Had the prosecution corrected him and disclosed Sneed’s mental health history, that disclosure could have undermined the jury’s opinion of the star witness, who provided the only direct evidence implicating Glossip [6]. After the trial concluded, the prosecution disclosed evidence indicating that it had known about Sneed’s condition and medical history all along, confirming that it had indeed failed to correct Sneed’s false testimony. This may suggest that the prosecution intentionally concealed these facts during the trial to preserve the jury’s favorable perception of its witness. This revelation followed two independent investigations that “cast serious doubt” on Glossip’s conviction, as well as an appeal that overturned the initial conviction [7]. However, he was retried years later and convicted again. The legal basis for this instance of prosecutorial misconduct is the earlier case Napue v. Illinois [8]. Decided in 1959, this case held that the prosecution’s failure to correct false testimony and suppression of evidence in a criminal case violate the Due Process Clause of the 14th Amendment. Napue v. Illinois held that a Due Process Clause violation occurs even when the false testimony bears only on the witness’s credibility rather than directly on the defendant’s guilt [9]. PAGE 22
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In Glossip v. Oklahoma, the Supreme Court ruled that Napue v. Illinois governed: the prosecution knowingly failed to correct false testimony by its witness, which may have affected the witness’s credibility and, therefore, the outcome of the trial [10][11]. Glossip v. Oklahoma resulted in a 6–2 opinion, with one of the nine Supreme Court Justices not participating [12]. Justice Gorsuch did not take part in considering or deciding the case because he had been involved in earlier appellate litigation related to Glossip v. Oklahoma while serving on the 10th Circuit Court of Appeals, which hears cases from Oklahoma [13]. Justice Sotomayor delivered the majority opinion of the Court, stating that the prosecution “knew Sneed’s statements were false” as they “almost certainly had access to Sneed’s medical file, which would have listed both the lithium prescription and the bipolar diagnosis” [14]. She went on to say that “the jury could convict Glossip only if it believed Sneed,” emphasizing the importance of Sneed’s credibility in this case [15]. Justice Barrett concurred in part and dissented in part from Justice Sotomayor’s majority opinion. Justice Barrett agreed with the Court’s analysis regarding the violation of the Due Process Clause of the 14th Amendment due to prosecutorial misconduct, but she did not believe that the Oklahoma Court of Criminal Appeals was required to “set aside Richard Glossip’s conviction” [16]. Instead, she asserted that the Court should have remanded this case. Justice Thomas wrote a strong dissent, stating that the Court “stretche[d] the law at every turn to rule in [Glossip’s] favor” and was out of its jurisdiction in overturning the specific rulings of the lower courts [17]. These opinions help us understand why the Court ruled as it did, particularly the reasoning of the majority. The majority of the Court followed the precedent set in Napue v. Illinois and recognized that “a conviction obtained through the knowing use of false evidence violates the Fourteenth Amendment’s Due Process Clause” [18]. The investigations Glossip conducted regarding his conviction provided the evidence that established a Napue v. Illinois violation by showing that the prosecution had knowingly allowed false testimony to be introduced at trial [19]. This rule is important because it prevents prosecutors from allowing witnesses to gain or maintain credibility while on the stand and aims to keep false testimony known to the prosecution from being unlawfully introduced into the trial. Despite this legal victory before the Supreme Court, Glossip’s legal journey is far from over. Oklahoma County District Judge Heather Coyle denied Glossip’s bond, which means he “will remain in custody while he awaits a new trial” [20]. This ruling was made because of the strength of the state’s case in 1997, as the judge concluded that “the presumption of the defendant’s guilt of a capital offense is great” [21]. The Oklahoma Attorney General, Gentner Drummond, intends to prosecute Glossip anew on a first-degree murder charge, notably without seeking the death penalty [22]. This decision to pursue a new trial is a result of the Attorney General’s office “thoroughly review[ing] the merits of the case. . . and conclu[ding] that sufficient evidence exists to secure a murder conviction” [23]. It is important to note that the Fifth Amendment’s double jeopardy clause is not relevant here. The Fifth Amendment protects people from being tried twice for the same crime [24]. However, double jeopardy protection can end for many reasons, including an appeal, as in this case. As such, Glossip can be retried. The outcome of Glossip v. Oklahoma is significant in reinforcing the precedent set in Napue v. Illinois, as the Court again ruled that prosecutorial misconduct resulting from a failure to correct false testimony violates PAGE 23
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the Due Process Clause [25][26]. This decision protects against future intentional prosecutorial misconduct, reinforcing the principle that witnesses are accorded an appropriate level of credibility and should not illegitimately influence a jury. The Oklahoma Attorney General seems confident that, despite the past prosecutorial misconduct, the state still holds a strong case against Glossip. Judge Coyle appears to agree. Yet these are only two of many possible perspectives, and this case itself has a long, convoluted history, including appeals, reversals, and now another retrial. As such, it will be worth watching Glossip’s retrial closely, especially for any mention by the defense of the past prosecutorial misconduct that led to the new trial. The Court has set a standard, both in Napue v. Illinois and now in Glossip v. Oklahoma, that transparency by all parties—especially the prosecution, in whom we vest vast powers to deliver justice and enforce the law of the land—is an important basis for upholding the right to a fair trial guaranteed by the United States Constitution [27][28].
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References [1] Glossip v. Oklahoma, 604 U.S. ____ (2025). [2] Glossip v. Oklahoma, 604 U.S. ____ (2025). [3] Lavietes, Matt. “Former Death Row Inmate Richard Glossip Denied Bond by Oklahoma Judge.” NBC News (July 23, 2025). https://www.nbcnews.com/news/us-n ews/former-death-row-inmate-richard-glossip-may-release d-oklahoma-prison-t-rcna220468. [4] Glossip v. Oklahoma, 604 U.S. ____ (2025). [5] Lavietes, Matt. NBC News, supra note [3]. [6] Glossip v. Oklahoma, 604 U.S. ____ (2025). [7] Gingras, Brynn, Dalia Faheid, and Linh Tran. “His Murder Conviction was Thrown out, but Richard Glossip Will Stay in Prison While he Waits for a New Trial, Judge Rules.” CNN (July 23, 2025). https://www.cnn.com/2025/07/23/us/richard-g lossip-bond-oklahoma. [8] Gingras, Faheid, and Tran, CNN, supra note [7]. [9] Napue v. Illinois, 360 U.S. 264 (1959). [10] Napue v. Illinois, 360 U.S. 264 (1959). [11] Glossip v. Oklahoma, 604 U.S. ____ (2025). [12] Napue v. Illinois, 360 U.S. 264 (1959). [13] Glossip v. Oklahoma, 604 U.S. ____ (2025). [14] Glossip v. Oklahoma, 604 U.S. ____ (2025). [15] Glossip v. Oklahoma, 604 U.S. ____ (2025). [16] Glossip v. Oklahoma, 604 U.S. ____ (2025). [17] Glossip v. Oklahoma, 604 U.S. ____ (2025). [18] Glossip v. Oklahoma, 604 U.S. ____ (2025). [19] Napue v. Illinois, 360 U.S. 264 (1959). [20] Lavietes, NBC News, supra note [3]. PAGE 25
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[21] Lavietes, NBC News, supra note [3]. [22] Lavietes, NBC News, supra note [3]. [23] Lavietes, NBC News, supra note [3]. [24] U.S. Const. amend. V. https://constitution.congress.gov/constitu tion/amendment-5/. [25] Glossip v. Oklahoma, 604 U.S. ____ (2025). [26] Napue v. Illinois, 360 U.S. 264 (1959). [27] Napue v. Illinois, 360 U.S. 264 (1959). [28] Glossip v. Oklahoma, 604 U.S. ____ (2025).
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Greenwashing: Endangered by Rescindment of Endangerment Finding? Jemima Schoen
A corporate office building rises behind a row of trees.
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Abstract: In 2009, the Environmental Protection Agency (EPA) responded to the Supreme Court’s ruling in Massachusetts v. EPA (2007) with the “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act,” often referred to as the Endangerment Finding. This rule regulates the emission of greenhouse gases by vehicles and has been fundamental to further, more specific regulations of greenhouse gases. EPA Administrator Lee Zeldin’s proposal on July 29, 2025, to rescind the Endangerment Finding has sent shockwaves through the legal and environmental world, as people speculate about what this decision will mean, if carried out, for environmental policy and litigation as a whole. Within environmental litigation lies the more recent issue of greenwashing, raising the question of how greenwashing litigation will be affected if the Endangerment Finding is reversed. This article examines greenwashing cases and their outcomes in recent years to help answer that question.
I. Introduction The genesis of the Endangerment Finding was the case Massachusetts v. EPA (2007), in which the Supreme Court ruled that, under the Clean Air Act, the EPA must regulate emissions and substances that contribute to climate change and therefore endanger public health and welfare. To understand the origins of the Endangerment Finding, it is necessary to briefly explain both the Clean Air Act and Massachusetts v. EPA (2007). A. Clean Air Act 1. Section 202(a) This section states that the EPA must assess and provide federal standards for emissions of air pollutants from all classes of new motor vehicles and engines that it judges may reasonably pose a risk to public health and/or welfare. 2. Section 111 This section deals with regulating emissions of air pollutants from “new and modified stationary sources” (for example, factories and power plants). It allows the EPA to adapt regulations as technological and environmental conditions change. As with the rest of the Clean Air Act, the EPA must impose the regulations necessary to protect public health and welfare from air pollutant emissions. PAGE 28
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B. Massachusetts v. EPA (2007) Multiple states, including Massachusetts, argued to the Supreme Court that the EPA should regulate “new motor vehicle” emissions of gases that contribute to “global warming” (i.e. greenhouse gases) under Section 202(a) of the Clean Air Act. [3] The EPA did not view CAA Section 202(a)’s reference to “air pollution agent[s]” as including greenhouse gases. However, the Supreme Court ruled that greenhouse gases could be considered air pollution agents, provided the EPA performed sufficient research to ascertain the risks that the gases—and, effectively, anthropogenic climate change—pose to public health and welfare, along with the protection measures necessary. [4] C. Establishing the Endangerment Finding In 2009, the EPA conducted “a thorough examination of the scientific evidence of climate change and considered thousands of public comments” to determine that greenhouse gases—the main culprits it identified were carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—“endanger the public health and welfare” of American citizens. [5] In the text of the “Final Rule,” the EPA states that the “combined emissions of these greenhouse gases from new motor vehicles and new motor vehicle engines contribute to the greenhouse gas air pollution that endangers public health and welfare under CAA section 202(a).” [6] These motor vehicles were said to include “passenger cars, light- and heavy-duty trucks, buses, and motorcycles,” and these transportation sources, among others, were cited as “responsible for 23 percent of total annual U.S. greenhouse gas emissions, making this source the second largest in the United States behind electricity generation” in 2009. [7] The Administrator of the EPA at the time, Lisa P. Jackson, supported the claim that greenhouse gases affect public health by examining the various effects of anthropogenic climate change (caused by greenhouse gas emissions), namely “the risks associated with changes in air quality, increases in temperatures, changes in extreme weather events, increases in food- and water-borne pathogens, and changes in aeroallergens.” [8] Since its inception, the Endangerment Finding has proven to be an essential part of federal environmental regulation, expanding in scope yet drawing new opponents as governmental administrations change.
II. Significance of the Endangerment Finding The Endangerment Finding, which established that “elevated concentrations of heat-trapping greenhouse gases are the root cause of recently observed climate change” and that these changes are “very likely due to the observed increase in anthropogenic greenhouse gas concentrations” [9] has allowed the EPA to expand its regulations. For example, in 2015 under CAA Section 111, the EPA updated the 2009 Endangerment Finding due to additional scientific evaluation and “determined that power plants ‘contribute significantly’ to dangerous atmospheric levels of greenhouse gases.” [10]
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Similarly, the EPA issued “standards for methane emissions from oil and gas sources under Section 111.” One year later, the EPA found that aircraft engine emissions of greenhouse gases “contribute to dangerous climate-changing air pollution under Section 231,” both being cited as appreciable contributors to climate change. [11] Lastly, in a “series of actions from 2022 through 2024,” the EPA “strengthened its climate protection standards for motor vehicles, oil and gas operations, and power plants in a series of actions,” including revising performance standards and emission guidelines for fossil fuel-fired electric generating units. [12] In the legal realm, the EPA’s ability to pursue criminal and civil suits (“Civil Enforcement” [13]) extends to the Clean Air Act, which, for the time being, still includes the Endangerment Finding, thereby placing limitations on emissions of greenhouse gases and other pollutants through certain regulatory systems and rules. These rules include EPA’s certification program under which “manufacturers apply to the EPA for a certificate of conformity and must demonstrate in their applications that representative test vehicles meet emission standards,” including appropriate “road load force.” It is illegal to sell a new motor vehicle in the U.S. unless it is covered by a certificate of conformity. [14] If the EPA suspects that a violation of one of these regulations has occurred, it has the right to investigate further via “inspections, reporting requirements, and tips and complaints from the public,” determining which enforcement action to take “on a case-by-case basis based on EPA’s findings.” [15] If a violation is indeed found to have occurred, the offending party or parties will be subject to a legal settlement or hearing or trial in conjunction with the U.S. Department of Justice, either of which usually ends in civil penalties, injunctive relief, and/or Supplemental Environmental Projects to remedy the party’s wrongdoing. [16] The EPA’s Civil Enforcement cases based on the Endangerment Finding include the “Hyundai and Kia Clean Air Act Settlement” (2014). EPA prosecuted Hyundai and Kia based on “their sale of more than 1 million vehicles that collectively will emit approximately 4.75 million metric tons of greenhouse gases in excess of what the automakers certified to the EPA.” The California Air Resources Board joined the EPA and the U.S. DOJ as a co-plaintiff, forcing the automakers to pay a $100 million civil penalty, in addition to other measures. [17]
III. EPA Administrator Zeldin: Proposal to Rescind Endangerment Finding On July 29, 2025, current EPA Administrator Lee Zeldin proposed to rescind the Endangerment Finding. On the EPA website’s page for this “Proposed Rule,” the EPA writes that without this finding, “EPA lacks statutory authority under Section 202 of the Clean Air Act to prescribe standards for GHG (greenhouse gas) emissions. Therefore, EPA also proposed to remove GHG regulations for light-, medium-, and heavy-duty on-highway vehicles” so that “engine and vehicle manufacturers would no longer have any future obligations for the measurement, control, and reporting of GHG emissions for any highway engine and vehicle, including model years manufactured prior to this proposal.” [18] This has largely been framed as an economic argument, with Zeldin and PAGE 30
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his supporters claiming that the benefits of electric vehicles and carbon neutrality have been overestimated by previous administrations’ EPAs relative to the costs these regulations impose on the “American family.” [19] The EPA claims that it “intends to retain, without modification, regulations necessary for criteria pollutant and air toxic measurement and standards, Corporate Average Fuel Economy testing, and associated fuel economy labeling requirements.” [20] Zeldin’s EPA seems to be returning to the EPA’s pre-2007 understanding of the Clean Air Act.
IV. Greenwashing Litigation: Overview According to Jacob H. Hupart, Douglas P. Baumstein, Joshua Briones, and Will G. McKitterick of the National Law Review, “Greenwashing” occurs when companies make false or inflated claims about the environmentally beneficial nature of their products, services, or business as a whole. Cases of greenwashing, mostly filed as class-action suits, have increased appreciably over the past few years, according to the same commentators: as consumers demonstrate their preference for environmentally-friendly products, companies are increasingly advertising the sustainability of their brands, sometimes to their own detriment, as unfounded or inflated claims can subject them to these suits. There were at least seventeen greenwashing class-action cases filed or decided within the two years prior to June 2023, with the number of (at least partially) surviving cases (eight) showing that courts currently appear to be taking greenwashing lawsuits seriously. [21] Though definitions of greenwashing can sometimes be subjective, greenwashing claims typically center on plaintiffs highlighting companies’ public statements about their products’ environmental impacts, such as representations made in marketing, product labeling, and even company websites and corporate filings. [22] The basis of these claims is usually common law allegations of false advertising, fraud, unjust enrichment, breach of warranty, or causes of action pursuant to specific state consumer protection statutes. [23] Since many greenwashing cases are filed as class actions, it is necessary to review the requirements for class action suits. After a plaintiff demonstrates they have standing to represent their class, the plaintiff must next establish the prerequisites set forth in Rule 23(a): (1) the class must be so numerous that joinder of all members is impracticable, (2) there must be questions of law or fact common to the class, (3) the claims or defenses of the class representatives must be typical of the claims or defenses of the class, and (4) the class representatives must fairly and adequately protect the interests of the class. In addition, a class action must satisfy at least one of the three sections of subsection (b) of Rule 23. Greenwashing class actions are typically filed pursuant to Rule 23(b)(3), which requires a named plaintiff to show that: (1) there are questions of law or fact common to all members of the class; (2) the common questions predominate over any questions which affect only individual members of the class; and (3) the class action is superior to all other available methods for the fair and efficient administration of the controversy. Both tests must be satisfied for a court to “certify” a class to proceed with its lawsuit. Defendants can defeat a class action, rendering it uncertifiable, by establishing that the plaintiff has failed to plead PAGE 31
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or establish any of these factors. [24] Greenwashing cases are least likely to be dismissed when companies made false claims about the recyclability of their products, as in Smith v. Keurig Green Mountain, Inc., 2023 WL 2250264 (N.D. Cal. Feb. 27, 2023), and most likely to be dismissed when companies have transparently outlined their sustainability, ethics, or carbon footprint metrics and tracking methodology (even if plaintiffs do not agree with that methodology) and contain only some “puffery”—appeals to customers using what might be seen as greenwashing language but without making any concrete, disprovable claims—as in Dwyer v. Allbirds, Inc., 598 F. Supp. 3d 137 (S.D.N.Y. Apr. 18, 2022), Lizama v. H&M, and Earth Island Institute v. Coca-Cola, all of which were dismissed in full. Cases occupying more of a gray area include Lee v. Canada Goose, 2021 WL 6881256 (S.D.N.Y. Oct. 19, 2021), which demonstrated that a company’s compliance with third-party standards may not completely insulate it from liability, [25] as the plaintiff’s allegations against Canada Goose for branding its coyote fur lining as “ethical” survived a motion to dismiss and remain ongoing.
V. How Greenwashing Litigation Could Be Affected by Rescinding the Endangerment Finding Could losing the set of standards provided by the Endangerment Finding jeopardize the burgeoning area of greenwashing litigation as it pertains to greenhouse gas emissions? For those hoping to file a class-action suit, rescinding the Endangerment Finding could take away a set of standards, or model, for what a company or entity that releases greenhouse gas emissions should mean when it claims to be “sustainable” or “environmentally friendly.” It would also defederalize standards and remove centralized means of monitoring and ensured transparency regarding companies’ greenhouse gas emissions. Rescinding the Endangerment Finding means that there is another potential layer of obscurity surrounding a business’s practices and the practices of those it employs or partners with, as it removes a federal standard that everyone can be assumed to follow. However, rescinding the EPA’s Endangerment Finding would likely not affect greenwashing from the standpoint of allegations of fraud, false advertising, or claims pursuant to state consumer protection laws. Additionally, cases like Lee v. Canada Goose show that it is possible to launch a greenwashing suit and avoid dismissal even when a company follows the standards of a third party (like the EPA) and yet is still deemed dishonest in the terms it uses or how it markets its product. Removing the Endangerment Finding’s requirements from EPA standards would remove considerable obstacles to EPA compliance, but that will not guarantee companies immunity from greenwashing suits. Ethical business practice is separate from environmental policy, and consumers are independently capable of launching suits. In fact, from this perspective, those concerned about the effect that reduced EPA regulation may have on greenhouse gas emissions could turn to greenwashing litigation as an alternate avenue for holding companies accountable. For example, in 2021, EPA sued Toyota Motor Corporation for allegedly delaying or failing to inform EPA of defects in its cars that “may result in excess emissions PAGE 32
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of harmful air pollutants” [26] (which is required by the Clean Air Act) for at least ten years; Toyota paid $180 million in the settlement. [27] In 2025, EPA sued Hino Motors, Ltd. (a subsidiary of Toyota) for falsified emission reports and fraudulent testing of diesel engines, particularly with respect to carbon dioxide [28] and other diesel emissions, to obtain certificates of conformity to EPA’s emission standards. [29] The settlement included Hino Motors’ payment of a $525 million civil penalty. Between the two cases, in March 2023, environmental campaigning organization Greenpeace Australia Pacific filed a greenwashing complaint against Toyota with the Australian Competition and Consumer Commission regarding the car manufacturer’s claims about its electric vehicles and net zero emissions. [30] While the issues do not completely overlap with those in the aforementioned settlement, both cases address alleged deception in Toyota’s emissions tracking and production—one before the American government, the other before the potential consumers targeted by Toyota’s marketing—simply through two different avenues. If the Endangerment Finding were to be rescinded, civil greenwashing litigation would be left as the only avenue open to prosecute such alleged deception in a company’s environmental practices. The EPA would no longer pursue civil enforcement against companies for producing excessive greenhouse gas emissions, nor would there be a standardized maximum accepted level of greenhouse gas emissions in the United States, nor a central body monitoring greenhouse gases. This would make it considerably more difficult to prosecute companies over their greenhouse gas emissions or even to prove what those emissions were. Essentially, the only thing left to prosecute would be whether a company has misrepresented its emissions, provided the plaintiff could find a way to measure the company’s emissions on a large scale. Even without the Endangerment Finding, the significant segments of the public and consumers who value the environment [31] would likely still be enough to incentivize companies to make claims about being “green” and having positive environmental practices. Greenwashing litigation would remain in place to ostensibly ensure that companies stay true to those claims. In this way, it would fall, at least to some degree, to social pressure and consumer protection laws—rather than the EPA—to keep companies in check.
VI. Conclusion It is important to note, first, that the Endangerment Finding has not yet been rescinded, and that if it is rescinded, that decision could always change with a new administration. This article merely speculates about what might happen if the Endangerment Finding were to disappear from the legal discourse. As a relatively new field of law, greenwashing invites many questions about its future and about potential legal innovations that it could usher in. One clear benefit it offers the public is the potential to hold companies accountable for their environmental claims. At a point in history when so much about the future of law, the environment, and the government is unknown, it is important to continue engaging in legal discourse and thinking critically about the rule of law.
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References [1] OYEZ, Massachusetts v. Environmental Protection Agency, https://www.oyez.org/c ases/2006/05-1120 (accessed Nov. 1, 2025). [2] NATURAL R ESOURCES D EFENSE C OUNCIL (NRDC), EPA’s Endangerment Finding: The Legal and Scientific Foundation for Cutting Climate-Changing Pollution (PDF) (n.d.). [3] Jacob H. Hupart, Douglas P. Baumstein, Joshua Briones & Will G. McKitterick, Greenwashing Class Action Litigation Is an Emerging Risk for Companies, NATIONAL L AW R EVIEW (n.d.). [4] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act; Final Rule, 40 C.F.R. ch. I (2009). [5] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Proposed Rule: Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards (July 29, 2025). [6] T EXAS P UBLIC P OLICY F OUNDATION, EPA Endangerment Finding Explained: What Changed and Why It Matters (n.d.). [7] T HE W EEK, Corporate Greenwashing Fines, https://theweek.com/environmen t/corporate-greenwashing-fines (n.d.). [8] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Toyota Motor Company to Pay $180 Million in Settlement for Decade-Long Noncompliance with Clean Air Act Reporting Requirements: Toyota Complaint (n.d.). [9] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Overview of Greenhouse Gases (n.d.). [10] G REENPEACE AUSTRALIA PACIFIC, Greenpeace Files ACCC Greenwashing Complaint Against Toyota (n.d.). [11] Consumers’ Purchase Behaviour and Green Marketing: A Synthesis, Review and Agenda (n.d.). [12] 42 U.S.C. The Public Health and Welfare (n.d.). [13] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Fact Sheet: EPA’s Civil Enforcement Program (n.d.). [14] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Hyundai and Kia Clean Air Act Settlement (2014).
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[15] U.S. E NVIRONMENTAL P ROTECTION AGENCY, Hino Motors Clean Air Act Settlement Summary (n.d.).
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Villarreal v. Texas and the Sixth Amendment Right to Counsel Kiran Sabharwal
A judge’s gavel rests on its sound block.
The goal of any trial is truthful fact-finding. Among the most crucial moments in that pursuit is witness testimony, a process intended to be uninterrupted, unrehearsed, and forthright. Ordinarily, witnesses may not speak with counsel while testifying to prevent tampering or coaching. However, defendants may also take the stand as witnesses, and in lengthy trials, a recess may be called while a witness remains on the stand. In such cases, courts must decide whether to allow defendants access to counsel as guaranteed by the Sixth Amendment or to restrict communication to prevent the alteration of testimony. The Sixth Amendment guarantees the accused the right to the assistance of counsel in all criminal prosecutions, but substantial precedent recognizes that courts may partially restrict that right in narrow contexts. Testimony recesses were at the center of three Supreme Court cases: Geders v. United States, Perry v. Leeke, and Villarreal v. Texas.[1, 2, 3] In Villarreal v. Texas, David Villarreal was charged with the murder of his boyfriend and claimed he acted in self-defense, alleging his partner attempted to fatally choke him.[4] During trial, Villarreal took the stand to testify, and between direct examination and cross-examination, the Texas court called an overnight PAGE 36
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recess and limited communication between Villarreal and his attorneys. As reported by Evan Lee for SCOTUS BLOG, the trial judge instructed defense counsel: “Normally your lawyer couldn’t come up and confer with you about your testimony in the middle of . . . the jury hear[ing] your testimony. And so I’d like to tell you that you can’t confer with your attorney but [at] the same time you have a [Sixth] Amendment right to talk to your attorney . . . [to defense counsel] you’re going to have to decide, if he asks you any questions and such, is this something that is going to be considered to be conferring with him on the witness stand while the jury is there or not.”[5]
Villarreal was ultimately convicted. His legal team appealed, arguing that the restriction during the overnight recess unconstitutionally infringed his right to counsel. Although the Texas Court of Criminal Appeals upheld the conviction, the Supreme Court granted certiorari; oral argument took place in October 2025, and a decision remains pending.[6] The question presented is whether barring Villarreal from discussing his testimony with counsel during an overnight recess violated his right to effective assistance of counsel.[6] The trial judge imposed the restriction because, under ordinary circumstances, attorneys may not speak with a witness about testimony while the witness remains on the stand. The rule aims to prevent witness tampering or the tailoring of testimony. To understand Villarreal, one must return to two earlier cases. In Geders v. United States (1976), the Court held that barring a defendant from consulting with counsel during a 17-hour overnight recess between direct examination and cross-examination violated the Sixth Amendment.[1] Although courts may restrain discussions with nonparty witnesses to prevent subornation or altered statements, Geders emphasized that a defendant’s status is fundamentally different: because the defendant is constitutionally entitled to counsel throughout the trial, the court cannot bar consultation altogether during an overnight recess.[1] Geders did not, however, squarely resolve whether a court may restrict discussion of testimony itself while still allowing consultation on other matters. Perry v. Leeke (1989) followed Geders and further refined the doctrine. Perry held that a defendant has no right to consult with counsel during a brief (15-minute) recess occurring mid-testimony, reasoning that such a short interval would almost certainly be used only to discuss testimony.[2] At the same time, Perry reaffirmed that consultation during an overnight recess is generally protected because many permissible topics may arise, including “the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.”[2] In short, Perry remained consistent with Geders on overnight recesses while allowing more restrictive limits for brief breaks. Against that backdrop, the trial court in Villarreal appears to have attempted to follow both precedents: it allowed access to counsel during the overnight recess (consistent with Geders) but sought to bar discussion of testimony itself.[3, 2] The defense argues that this distinction is unworkable in practice. At oral argument, counsel for Villarreal contended that separating “testimony” from “trial strategy” is impossibly vague because meaningful strategy often requires reference to testimony already given or testimony still in progress.[8] On this view, the instruction chills attorney–client communication and effectively deprives a defendant of counsel during one of the most consequential consultations in the PAGE 37
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entire trial. The National Association of Criminal Defense Lawyers echoed this concern, arguing that an order prohibiting an accused and counsel from “discussing” the accused’s testimony during an overnight recess is functionally equivalent to a Geders violation and should require automatic reversal.[7] The organization also highlighted common scenarios where trial-related discussions would naturally touch on testimony in progress, forcing counsel and defendant to second-guess routine, necessary exchanges.[7] These concerns, however, do not undermine Perry’s logic that some limits during testimony recesses can be constitutionally permissible. A court may reasonably seek to preserve the integrity of testimony by preventing coaching or coordinated alteration of answers. Even during overnight recesses, the court may allow wide-ranging consultation while ensuring that testimony-specific “coaching” is not the primary subject of the discussion.[2, 8] In that sense, the constitutional question becomes whether the restriction imposed in Villarreal was sufficiently clear and sufficiently narrow to preserve meaningful access to counsel while protecting the truth-seeking function of testimony. At argument, counsel for the respondent suggested an expansive understanding of “coaching,” extending beyond shaping substantive answers to include advice about demeanor, such as avoiding fidgeting in front of the jury.[8] If the Court adopts such a broad conception, it risks treating ordinary, non-substantive guidance as impermissible tampering. The Court may therefore wish to clarify what counts as prohibited discussion of testimony and what constitutes permissible consultation that is merely incidental to testimony. Applying Geders and Perry, Villarreal was constitutionally guaranteed access to counsel during the overnight recess, but that guarantee did not necessarily extend to unlimited access. A trial judge may restrict discussions that directly coach testimony without undermining the Sixth Amendment’s core protections. Going forward, the Court should provide clearer guidance on what constitutes “incidental” reference to testimony versus impermissible testimony management, so that defendants and counsel can communicate effectively during overnight recesses without fear that routine trial preparation will be deemed unconstitutional.
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References [1] Geders v. United States, 425 U.S. 80 (1976). [2] Perry v. Leeke, 488 U.S. 272 (1989). [3] Villarreal v. Texas, No. 24-557 (U.S. argued Oct. 6, 2025). [4] 707 S.W.3d 138 (Tex. Ct. Crim. App. Oct. 9, 2024). [5] Evan Lee, Supreme Court to consider when lawyers can be barred from speaking to their client, SCOTUS BLOG (Oct. 1, 2025), https://www.scotusblog.com/2025/10/s upreme-court-to-consider-when-lawyers-can-be-barred-from-spe aking-to-their-client/. [6] OYEZ, Villarreal v. Texas, https://www.oyez.org/cases/2025/24-557 (accessed Nov. 28, 2025). [7] Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, NATIONAL A SSOCIATION OF C RIMINAL D EFENSE L AWYERS (June 10, 2025), https://www.nacdl.org/brief/Villarreal-v-Texas. [8] OYEZ, Oral Argument Transcript—Villarreal v. Texas, https://www.oyez.org/cas es/2025/24-557 (accessed Nov. 28, 2025). [9] Evan Lee, Court leans toward allowing trial judges to limit attorney–client discussions during overnight recesses, SCOTUS BLOG (Oct. 8, 2025), https://www.scotusblog.com /2025/10/court-leans-toward-allowing-trial-judges-to-limit-a ttorney-client-discussions-during-overnight-recesses/.
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Hors de Combat: How the September 2 Strike Violated America’s Own Laws of War Bryce Leiberman
The International Criminal Court stands illuminated at dusk.
The targeted US ‘second strike’ on a Venezuelan drug boat on September 2 was a flagrant violation of international law. While the US has launched dozens of strikes intended to target “narcoterrorists,” the September 2 strike unlawfully targeted individuals on the remains of a burning shipwreck after the original strike (1). Carried out on Defense Secretary Pete Hegseth’s orders, the strike is unjustifiable and sets a precedent in direct contradiction of the Pentagon’s own ‘Law of War’ manuals (2). By laying the groundwork for future transgressions, this violation risks becoming a slippery slope. With little indication that there will be any repercussions for such a brutal murder of two people, the US government seems ready to move on from the issue. Yet America must hold its government responsible for its transgressions and demand accountability in the face of war PAGE 40
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crimes committed by its leaders. One of the first acts of President Trump during his new term was to designate all drug cartels as “foreign terrorist organizations” (3). Under this definition, the US could justify ongoing strikes against drug boats on the grounds that America is in ‘armed conflict’ with these ships due to their detrimental effects on the well-being of American citizens. Trump believes that the smuggling of illegal drugs across US borders warrants a Title 10 justification of American self-defense, allowing the US to strike these boats to prevent narcotics from being transported into America (3). While this legal justification has been widely debated, the authorized strike on a drug boat off the coast of Venezuela on September 2 has drawn credible criticism from elected officials on both sides of the aisle. In this instance, the strike on the drug boat was followed by an alleged ‘second tap’ order that killed the remaining survivors (4). A review of the Pentagon’s Law of War Manual brings this blatant violation of US defense policy into clearer view. According to the manual, “Members of the armed forces and other persons . . . who are wounded, sick, or shipwrecked, shall be respected and protected in all circumstances. . . Such persons are among the categories of persons placed hors de combat; making them the object of attack is strictly prohibited. (2)” In sum, attacking the two shipwrecked passengers clinging to the side of the boat violates the Pentagon’s own rules governing proper wartime conduct. With the boat already destroyed, there was no reason, legal or otherwise, for Hegseth to order the killing of the two others onboard. Instead of prosecuting them under American law for drug smuggling, officials opted to pull the trigger, committing a senseless war crime. While Hegseth denies (4) having given the order, and Trump has insisted that he would not have sanctioned the killings, the fact remains that an order for a second strike was both given and carried out. Still, the administration has justified the attacks by claiming that Admiral Frank Bradley authorized the second strike in response to his belief that the survivors were radioing suspected cartel members for help. Yet critics have questioned the authority to strike a drug boat that was not actively engaged in armed conflict with the US. Geoffrey Corn, director of the Center for Military Law at Texas Tech, says, “This is the crux of the problem. You’re treating a criminal menace as a wartime menace, and the rule doesn’t fit in that situation. With an enemy warship, there are ways to know that it’s done – it stops firing, or it strikes its colors. But how does that apply to a drug boat?” (4). Corn argues that treating drug boats as wartime enemies gives the US government carte blanche to strike, meaning this wrongful classification could put innocent lives in danger. The legal ramifications of Trump’s boat strikes are twofold: first, they exemplify how Donald Trump has sought to expand his own presidential role without accountability to Congress. In an October 26 interview on Fox News, Republican Senator Rand Paul said, “So far, they have alleged that these people are drug dealers. . . No one said their name. No one said what evidence. No one has said whether they’re armed. And we’ve had no evidence presented. So, at this point I would call them extrajudicial killings.(1)” This categorization of drug cartels as terrorist organizations essentially gives the government full authority to treat these boats as wartime enemies in armed conflict, rather than as criminals who should be arrested and charged for drug smuggling. Second, the administration’s ‘second tap’ on September 2 shows the reckless abandon with which President Trump treats US rules of war. The normalization of Trump’s actions creates a PAGE 41
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precedent of complete disregard for formalized rules of war, setting the stage for further violations of previously respected norms in future conflicts. Most recently, lawmakers have sought to compel the release of video footage from September 2 in order to clarify the events that took place. On December 17, the Senate passed an annual military policy bill that included language stipulating that if Hegseth failed to release the unedited footage from September 2, a quarter of his travel budget would be revoked (5). This represents a first, fundamental step toward uncovering the truth in a case that has generated bipartisan skepticism. While Hegseth has previously been adamant about not releasing video footage, saying, “Of course we’re not going to release a top secret, complete, unedited video of that to the general public,” (6), Congress passed the military policy bill in the hope that he will be incentivized to show complete transparency. The attack on September 2 was a direct violation of US rules of war. To hold Pete Hegseth and those responsible accountable, the unedited video must be released, and the American public must speak out against the senseless killings of these individuals. The war on drugs should be fought and prosecuted legally, with an emphasis on minimizing casualties. By killing shipwrecked survivors of an initial attack, the US government has sent the message that it is not solely acting to defend itself against dangerous drugs but that it is also willing to kill drug traffickers without due process or legal procedure. This is unjustifiable and should not be tolerated from a nation whose legal system is meant to prioritize the rule of law over the whims of government officials. To protect the sanctity of the American legal system and increase the accountability of the government, the events of September 2 must have repercussions, ensuring such reckless killing never happens again.
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References [1] Alan Jaffe, “Assessing the Facts and Legal Questions About the U.S. Strikes on Alleged Drug Boats,” FactCheck.org, October 30, 2025, accessed December 18, 2025, https: //www.factcheck.org/2025/10/assessing-the-facts-and-legal -questions-about-the-u-s-strikes-on-alleged-drug-boats/. [2] United States Department of Defense. Department of Defense Law of War Manual. June 2015; updated July 2023. Office of the General Counsel. Accessed December 18, 2025. https://ogc.osd.mil/Portals/99/Law%20of%20War%202023/DOD-L AW-OF-WAR-MANUAL-JUNE-2015-UPDATED-JULY%202023.pdf. [3] Ellen Mitchell, “Hegseth, Bradley and the Venezuela Boat Strikes: Who Is Legally Responsible?,” BorderReport.com, December 11, 2025, accessed December 18, 2025, https://www.borderreport.com/news/military/hegseth-bradley -and-the-venezuela-boat-strikes-who-is-legally-responsible /. [4] Robert Tait, “Killing of Survivors Sparks Outrage – But Entire US ‘Drug Boat’ War Is Legally Shaky,” The Guardian, December 4, 2025, accessed December 18, 2025, https://www.theguardian.com/us-news/2025/dec/04/venezuel a-boat-strikes-legality-hegseth. [5] Stephen Groves, Lisa Mascaro, and Ben Finley, “Hegseth Says He Won’t Publicly Release Video of Boat Strike That Killed Survivors in the Caribbean,” PBS NewsHour, December 16, 2025, accessed December 18, 2025, https://www.pbs.org/newshour/wor ld/hegseth-says-he-wont-publicly-release-video-of-boat-s trike-that-killed-survivors-in-the-caribbean. [6] Stephen Groves, Lisa Mascaro, and Ben Finley, PBS NewsHour, supra note [5].
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Mirabelli v. Bonta: Public School’s Right to Conceal Gender Transition Emilia Kim
Marchers wave rainbow flags at a pride parade.
In 2023, two California teachers filed suit in the United States District Court for the Southern District of California, challenging their school district’s policies governing student gender identity. The district itself acknowledged these policies were mandated by state law as interpreted by the California Attorney General and Department of Education. As litigation progressed, parents of California schoolchildren joined the suit, bringing forth circumstances that would alter the interpreted constitutional impact. The first family, the Poes, learned of their child’s year-long social transition at school only after the child’s suicide attempt and subsequent involuntary hospitalization, while the Does were told directly by a school principal that state law barred disclosure of their child’s gender identity without the child’s consent. The challenged policy was twofold; first, schools were PAGE 44
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prohibited from notifying parents of a child’s social gender transition without the child’s consent, and second, school staff was mandated to use a student’s preferred name and pronouns despite parental objection. After the District Court certified a plaintiff class, granted summary judgment, and entered a permanent injunction in favor of the parents and teachers, the Ninth Circuit maintained that injunction pending appeal, prompting an emergency application to the Supreme Court. In Mirabelli v. Bonta (2026), the Supreme Court vacated the Ninth Circuit’s stay as to the parent-plaintiffs, raising the central constitutional question: do California’s nondisclosure and preferred-pronoun policies violate parents’ rights under the Free Exercise Clause of the First Amendment and the substantive component of the Due Process Clause of the Fourteenth Amendment? The constitutional infringement arguments in Mirabelli v. Bonta fall under two amendments. The first is the Free Exercise Clause of the First Amendment, which prohibits government action that substantially burdens religious practice unless that action survives strict scrutiny as defined by Sherbert v. Verner, 374 U.S. 398 (1963). Additionally, the Supreme Court’s recent decision in Mahmoud v. Taylor, 606 U.S. 522 (2025), extended this framework into the domain of parental rights, ruling that policies which substantially interfere with parents’ right to guide the religious development of their children trigger strict scrutiny. Mahmoud is particularly significant here because the Court found that exposure to certain curriculum materials without the ability to opt out was enough to infringe upon the Free Exercise rights of parents. This set the standard for the plaintiffs in Mirabelli v. Bonta to argue against California’s nondisclosure policy. The Substantive Due Process Clause, grounded in the Fourteenth Amendment, provides the second constitutional basis for the parents’ claims. Though the Due Process Clause directly doesn’t allow for “...prohibiting deprivations of life, liberty, or property without due process of law. . . ,” the Supreme Court has expanded its meaning to include “fundamental rights implicit in the concept of ordered liberty” as protected from government interference regardless of the procedures employed. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court recognized that the liberty protected by the Fourteenth Amendment encompasses a parent’s right to control their child’s education and upbringing. Two years later, Pierce v. Society of Sisters, 268 U.S. 510 (1925), reaffirmed that the state cannot unreasonably interfere with the liberty of parents to direct the education of their children. Most relevant to the facts of Mirabelli v. Bonta, Parham v. J.R., 442 U.S. 584 (1979), specifically recognized that parental authority encompasses decisions concerning a child’s mental health, under the presumption that fit parents act in the best interests of their children. Together, these precedents establish a constitutional baseline: the state may not categorically exclude parents from decisions on the mental health and welfare of their minor children. The applicable standard for assessing whether these rights were properly vindicated at the preliminary injunction stage is the four-factor test articulated in Nken v. Holder, 556 U.S. 418 (2009), which the Court also applies to applications to vacate a stay pending appeal. Under Nken, the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent relief; (3) that the balance of equities tips in their favor; and (4) that an injunction would serve the public interest. Where constitutional rights are at stake, the first two factors carry particular weight, as the deprivation of a constitutional right for even a limited PAGE 45
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duration has been recognized as irreparable harm. In its application to this case, the parent-plaintiffs (Mirabelli) demonstrated that their religious beliefs about sex and gender obligated them to raise their children accordingly. Thus, California’s nondisclosure policy directly violated those beliefs by facilitating gender transitions at school without parental knowledge or consent. The Court found this intrusion greater than the introduction of LGBTQ storybooks found sufficient to trigger strict scrutiny in Mahmoud. The Court’s argument was that if passive curriculum exposure without an opt-out right substantially burdened Free Exercise rights, then active, concealed participation in a child’s social transition did as well. According to the parent-plaintiffs, the substantive due process claim reinforced this conclusion. Under the framework established by Meyer, Pierce, and Parham, the liberty guaranteed by the Fourteenth Amendment encompasses a parent’s right to direct the upbringing, education, and mental health decisions of their minor children. California’s policy did not merely decline to volunteer information; it affirmatively prohibited school staff from disclosing a student’s social transition to parents even upon direct inquiry. Yet the decision is not without its critics, and their objections are substantial. Progressive legal scholars would note that the Court’s reliance on Parham categorizes gender identity as a mental health matter subject to parental authority. Thus, the Court treats trans identity as a condition requiring clinical oversight rather than a normal human experience. Critics would further argue that the nondisclosure policies the Court struck down existed because research shows elevated rates of depression, self-harm, and suicide among LGBTQ youth who face rejection at home. The policy was not designed to deceive fit parents; it was designed to create a safe space for the students whose home environments made coming out dangerous. The Court’s reassurance that child abuse laws remain available to protect those children is insufficient, because family rejection that causes serious psychological harm frequently falls well below the legal threshold of abuse. There is also a structural tension the decision leaves unresolved. The Court does not adequately account for the child as an independent subject with interests that may diverge from those of the parent. When a student asks a teacher to use a different name, that request reflects the child’s own sense of self. The Court’s opinion, focused as it is on parental rights, has little to say about what the child is entitled to when those interests conflict. What Mirabelli v. Bonta leaves open is the question of whether a more narrowly tailored policy could work: one that honors parental rights while building meaningful protections for students whose home environments make disclosure genuinely dangerous, rather than forcing courts to choose between two groups of vulnerable people. That tension, unresolved by this decision, will likely define the next chapter of litigation as the case continues through the Ninth Circuit.
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References 1. Meyer v. Nebraska, 262 U.S. 390 (1923). https://tile.loc.gov/storage-s ervices/service/ll/usrep/usrep262/usrep262390/usrep262390. pdf 2. Pierce v. Society of Sisters, 268 U.S. 510 (1925). https://supreme.justia.com /cases/federal/us/268/510/ 3. Sherbert v. Verner, 374 U.S. 398 (1963). https://tile.loc.gov/storage-s ervices/service/ll/usrep/usrep374/usrep374398/usrep374398. pdf 4. Parham v. J.R., 442 U.S. 584 (1979). https://tile.loc.gov/storage-servi ces/service/ll/usrep/usrep442/usrep442584/usrep442584.pdf 5. Nken v. Holder, 556 U.S. 418 (2009). https://tile.loc.gov/storage-ser vices/service/ll/usrep/usrep556/usrep556418/usrep556418.pd f 6. Mahmoud v. Taylor, 606 U.S. 522 (2025). https://www.supremecourt.gov/o pinions/24pdf/24-297_4f14.pdf 7. Mirabelli v. Bonta (2026). https://www.supremecourt.gov/opinions/25 pdf/25a810_b97d.pdf 8. ACLU of Southern California, Know Your Rights: Mirabelli v. Bonta FAQ. https: //www.aclusocal.org/know-your-rights/know-your-rights-mir abelli-v-bonta-faq/ 9. Supreme Court of the United States, Docket No. 25A810. https://www.supremec ourt.gov/docket/docketfiles/html/public/25a810.html 10. Justia, Mirabelli v. Bonta, 607 U.S. (2026). https://supreme.justia.com/c ases/federal/us/607/25a810/ 11. Chalkbeat, “Supreme Court Gender Identity Ruling Favors Parents, but Challenges Schools,” March 7, 2026. https://www.chalkbeat.org/2026/03/07/sup reme-court-gender-identity-ruling-favors-parents-but-cha llenges-schools/ 12. Becket Fund for Religious Liberty, Mirabelli v. Bonta. https://becketfund.org /case/mirabelli-v-bonta/
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13. Federalist Society, “Are Secret Gender Transition Policies Unconstitutional? Mirabelli v. Bonta and the New Frontier in Parental Rights.” https://fedsoc.org/events/ are-secret-gender-transition-policies-unconstitutional-m irabelli-v-bonta-and-the-new-frontier-in-parental-rights 14. Atkinson, Andelson, Loya, Ruud & Romo, Newsroom Alert. https://www.aalrr. com/newsroom-alerts-4207
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The Limits of Protection: Deceptive Commercial Speech and Crisis Pregnancy Centers Veda Kommineni
A stethoscope lies beside a pen and paperwork.
As of 2024, there were approximately 765 brick-and-mortar abortion clinics remaining in the United States after Dobbs v. Jackson Women’s Health Organization. [1] Yet, more than 2,600 Crisis Pregnancy Centers (CPCs) operate nationwide, meaning these reproductive health providers outnumber real abortion clinics by roughly four to one. [2] CPCs are Christian nonprofits intended to prevent women from obtaining abortions. The first CPC was created by Christian carpenter Robert Pearson in 1967 in Hawaii, [3] who reported that more than 120 women had visited his center. [4] He proceeded to publish a 93-page manual on how to replicate his process, which included recommendations for location (near existing abortion facilities), neutral names, and example scripts. In the manual, Pearson also suggested that activists “show women a slide show that includes PAGE 49
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misinformation about the health risks of abortion.” [5] CPCs are strategically placed near abortion clinics or former abortion clinics and designed like a doctor’s office. [6] Their waiting rooms look similar and their volunteers don medical scrubs or lab coats. The main difference, however, is that they are not medical clinics. They fail to offer true “medical” services, but instead provide free pregnancy tests, the same ones sold over the counter at drugstores, and ultrasounds, which require zero specialized medical training. [7] They are not required by law to disclose that their ultrasounds are not intended to diagnose anything. [8] Under current law, CPCs are not required to inform their clients they have no medical professionals or certifications. These centers are also not bound by HIPAA or other patient privacy laws, putting their clients at risk. [9] The issue at hand is how courts have treated CPCs’ advertising as fully protected ideological speech and have therefore shielded potentially deceptive medical practices from regulation under consumer protection laws. I propose that such an approach misreads National Institute of Family and Life Advocates v. Becerra and extends First Amendment protection beyond its proper scope. Rather than categorically classifying CPC communications as ideological, courts should recognize that certain CPC advertising functions as commercial or “medically-adjacent” speech and is therefore subject to regulation targeting deception and consumer harm. By adopting a functional approach to classification, states can regulate misleading health-related representations without infringing on protected ideological expression. In 2015, California enacted the Reproductive FACT Act to address concerns that crisis pregnancy centers were misleading individuals seeking reproductive healthcare. [10] The statute imposed two disclosure requirements: first, licensed facilities were required to display a notice informing clients that the state provides free or low-cost access to comprehensive family planning services, including contraception and abortion, and second, unlicensed facilities were required to disclose their unlicensed status prominently in any advertising materials and within their physical space. The act was designed to ensure that individuals seeking medical care received accurate information about the nature of the services being offered and the availability of alternative providers. California justified the law as a consumer protection measure aimed at preventing deception in a context where delays or misinformation could have significant health consequences. In NIFLA v. Becerra, the Supreme Court held that both disclosure requirements violated the First Amendment. Justice Thomas characterized the act as a content-based regulation of speech that compelled crisis pregnancy centers to convey messages with which they disagreed. [11] The Court’s decision in NIFLA helped to clarify several important principles regarding the regulation of CPCs. The Court first rejected the idea that “professional speech” is a special category that receives less First Amendment protection. [12] This limits states’ ability to justify regulations simply because the speech occurs in a professional setting. Second, the Court reinforced its general skepticism that professional speech should be controlled by the government simply because it is stated in a professional setting. Such laws are subject to heightened scrutiny, making it harder for states to mandate disclosures that are rooted in faith or controversial. At the same time, the Court didn’t eliminate all regulatory options. It acknowledged that some disclosure requirements, particularly those involving purely factual and noncontroversial information in commercial settings, may still PAGE 50
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be allowed. The Court also reaffirmed that false or misleading commercial speech is not protected by the First Amendment and can be regulated. Most importantly, the decision does not change the longstanding rule that deceptive or misleading commercial speech can be prohibited. Governments may still enforce general consumer protection laws against organizations that misrepresent their services. In addition, the Court suggested that carefully crafted disclosure requirements may still be constitutional if they are not “overly burdensome.” [13] Finally, the decision does not resolve how to classify speech that falls in between ideological advocacy and commercial activity. CPCs combine both, which makes them difficult to regulate. Whether their communications are protected speech or regulable commercial conduct remains a looming question. In the aftermath of NIFLA v. Becerra, courts have treated CPCs’ communications as fully protected ideological speech, largely shielding them from regulation. This interpretation of the case, however, reflects an overextension of the NIFLA decision. While the decision rejected compelled ideological disclosures and declined to recognize professional speech as a distinct category, it did not immunize all communications by CPCs from regulation. Instead, NIFLA reaffirmed that the First Amendment permits regulation of false or misleading commercial speech and allows for certain factual disclosure requirements. By pushing all CPC communications into the category of ideological expression, courts risk disregarding these distinctions, producing an expansive view of First Amendment protection that exceeds the scope of NIFLA. A more precise analysis suggests that at least some CPC communications are properly understood as commercial speech. The Supreme Court has generally defined commercial speech as “expression that proposes a commercial transaction or is economically motivated and directed at consumers.” [14] Although it is uncommon for CPCs to charge for their services, their advertising often functions in ways that closely resemble traditional commercial promotion. CPCs routinely advertise pregnancy-related services, such as pregnancy testing and ultrasounds, to individuals actively seeking reproductive healthcare. Their advertisements are directed toward a specific audience and often focus on time-sensitive decision-making. These characteristics closely resemble those of commercial speech, even where no financial exchange occurs. In addition, the absence of profit does not necessarily preclude speech from being categorized as commercial. Courts have previously recognized that nonprofit entities can still engage in commercial speech when they promote services to for-profit actors. [15] To the extent that CPCs present themselves as providers of medical services, their communications operate within a consumer sphere of healthcare information and should be analyzed accordingly. The difficulty in classifying CPC messaging is due, in part, to its hybrid nature. These centers combine ideological advocacy with the promotion of healthcarerelated services. This creates a category of speech that is neither purely expressive nor traditionally commercial. Rather than forcing this speech into existing categories, CPC communications are better understood as “medically-adjacent” speech. This is speech that occurs in a healthcare-like context and is reasonably understood by consumers as conveying medically relevant information. From a legal perspective, classifying speech as medically-adjacent does not create a new tier of First Amendment protection, but instead informs how existing doctrine should be applied. Courts should evaluate such speech using a functional approach that focuses on context and audience. PAGE 51
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Where medically-adjacent speech closely resembles commercial promotion, such as advertising specific services to individuals seeking time-sensitive healthcare, it may be treated as commercial speech and subject to regulation prohibiting false or misleading representations. Conversely, where the speech is more clearly ideological or value-based, it retains full First Amendment protection. This framework allows courts to apply established principles without collapsing distinct categories of speech. In practice, this framework permits regulation of deceptive practices, including misleading representations about medical services or omissions that would affect a reasonable patient’s decision-making, while avoiding compelled ideological disclosures prohibited under NIFLA v. Becerra. CPCs often frame themselves as medical facilities by replicating clinical settings and by having employees wear medical attire. These features create a reasonable expectation among clients that the information provided is medically relevant. When CPCs combine this clinical framing with advertising that emphasizes pregnancy-related services, the likelihood that individuals will rely on them to make healthcare decisions increases. By classifying this speech as purely ideological, we fail to account for the fact that medical speech directly influences decision-making in circumstances where transparency and accuracy are especially important. As a result, such speech implicates the same regulatory concerns associated with commercial speech. Recognizing that CPC speech is regulable does not require suppressing ideological viewpoints. Rather, it allows the state to target specific practices, such as deceptive advertising, without policing the underlying beliefs of the entity. This distinction is consistent with broader First Amendment principles which differentiate between regulating ideas and regulating harmful or deceptive conduct. Advocates for increased First Amendment protection for CPCs argue that their communications are fundamentally religious in nature and therefore deserve constitutional safeguards. From this perspective, regulatory efforts would be an attempt at suppressing “unfavorable viewpoints.” [16] CPCs are viewed as ministries deeply motivated by sincerely held beliefs about the moral status of abortion. Their speech often includes religious counseling and faith-based messaging that reflects these commitments. Because these communications are intertwined with their religious mission, proponents contend that any attempt to regulate CPC messaging risks burdening religious exercise and compelling organizations to convey messages inconsistent with their beliefs. Under this view, laws targeting CPC advertising are seen not as neutral consumer protection measures but as efforts to suppress disfavored viewpoints in the ongoing debate over abortion. Requiring disclosures related to abortion services, in particular, is framed as compelling religious speakers to promote conduct they morally oppose, raising concerns under both the Free Speech and Free Exercise Clauses. As a result, advocates argue that CPC communications should be treated as fully protected ideological or religious expression, even when they occur in the context of offering pregnancyrelated services. While CPCs are certainly engaging in ideological expression, characterizing them solely in that category does not resolve how all of their communications should be classified. The relevant question is not the organization’s mission, but the function of the speech. When an organization communicates in a manner that resembles service-oriented advertising, those communications may be subject to regulation even if they are intertwined with broader ideological PAGE 52
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goals. Courts have consistently recognized that the same speaker may engage in different types of speech, each subject to different levels of constitutional protection. Accordingly, treating CPC advertising as commercial or medically-adjacent speech does not diminish CPCs’ ability to engage in protected advocacy. It instead reflects a more precise application of First Amendment doctrine to a hybrid form of communication. Since NIFLA v. Becerra imposes limits on compelled speech, specifically regarding when the state may mandate ideological or controversial messages, CPCs must operate within the constraints articulated in NIFLA. At the same time, the decision preserves the state’s authority to regulate commercial speech and prohibit deceptive practices. A workable regulatory framework must adhere to the following guiding principles: first, regulations should target deception and consumer harm instead of the ideological content CPCs express. Second, these regulations should be framed as generally applicable consumer protection measures. Third, any disclosure requirements must be limited to purely factual, noncontroversial information and must not unduly burden speech. By following these principles, regulators can ensure that regulation addresses the functional characteristics of CPC communications without infringing on protected religious rights. Under this approach, courts should evaluate two factors. First, the context of the communication: courts should consider whether the speech occurs in a setting that resembles a healthcare environment or is directed at individuals seeking medical services, with indicators such as the use of clinical spaces or medical attire. Second, the content and representation: courts should assess whether the communication conveys information about services that a reasonable person would interpret as medical in nature, such as pregnancy testing, ultrasounds, or counseling presented as medically-informed, especially if the presentation implies professional expertise. These considerations collectively allow courts to distinguish between protected ideological advocacy and service-oriented communications that implicate consumer protection concerns. Once speech is properly classified under this functional methodology, states may employ a range of constitutionally permissible regulatory methods. First, deceptive advertising enforcement: states may apply generally applicable laws prohibiting false or misleading advertising to crisis pregnancy centers, including both affirmative misrepresentations and material omissions likely to mislead reasonable consumers, a category falling squarely within the longstanding exception for deceptive commercial speech. [17] Second, factual disclosure requirements: states may require disclosures that provide accurate information, such as whether a facility is licensed or whether it provides specific medical services; to comply with NIFLA, these disclosures must be carefully tailored in format and placement so as not to “unduly burden speech.” [18] Third, licensing and transparency regulations: states may also regulate the use of titles and credentials associated with medical practice, framing restrictions on misleading use of medical terminology or attire as conduct-based regulations designed to prevent consumer confusion rather than as restrictions on speech. The regulations must be both practical and carefully designed. First, laws should not single out CPCs as a specific group; instead, they should apply broadly to any organization that offers or advertises health-related services, making it less likely that courts will view the law as targeting a particular viewpoint or a specific religious view. Second, any required disclosures should be strictly factual and avoid controversial topics such PAGE 53
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as abortion. Third, enforcement should focus on clear cases of deception or harm to consumers. This approach has effects beyond CPCs. As healthcare increasingly involves nonprofits and similar organizations, the courts will likely continue facing speech that does not fit perfectly into traditional legal categories. By creating a legal framework that differentiates between ideological advocacy and service-based communication, courts can protect free speech while still addressing the risks of misleading practices in healthcare. It reinforces the idea that the First Amendment does not require the government to allow deception simply because it is mixed with protected speech. [19] The Supreme Court’s decision in NIFLA v. Becerra reshaped how CPCs can be regulated, but it did not eliminate the use of traditional consumer protection laws. Some courts, however, have interpreted the decision too broadly by treating all CPC speech as fully protected. I argue for a more precise approach, one that recognizes that CPCs often combine advocacy with service-related communication. By conceptualizing certain CPC communications as “medically-adjacent” speech, courts can more accurately apply existing First Amendment doctrine. The legal implications of this approach are significant. Courts can adopt a functional analysis that evaluates how speech operates in practice. This allows states to enforce generally applicable consumer protection laws and regulate misleading representations without compelling ideological speech or targeting disfavored viewpoints. Ultimately, recognizing medically-adjacent speech reinforces a central principle of First Amendment law: the Constitution protects the freedom to express ideas, but it does not require the government to tolerate deception simply because it is intertwined with protected expression.
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References [1] Guttmacher Institute, Abortion Clinics in the United States, 2020–2024. https://ww w.guttmacher.org/report/abortion-clinics-united-states-2 020-2024 [2] Guttmacher Institute, supra note [1]. [3] The New York Times, “Opinion: Crisis Pregnancy Centers and Roe,” May 12, 2022. https://www.nytimes.com/interactive/2022/05/12/opinion/cri sis-pregnancy-centers-roe.html [4] The New York Times, supra note [3]. [5] The New York Times, supra note [3]. [6] The New York Times, “Conversion Therapy, Abortion, and the Supreme Court’s Speech Jurisprudence,” October 7, 2025. https://www.nytimes.com/2025/10/07/u s/politics/conversion-therapy-abortion-supreme-court-spe ech.html [7] Guttmacher Institute, supra note [1]. [8] The Conversation, “Supreme Court Case About Crisis Pregnancy Centers Highlights Debate over Truthful Advertising Standards.” https://theconversation.com/ supreme-court-case-about-crisis-pregnancy-centers-highlig hts-debate-over-truthful-advertising-standards-271254 [9] Guttmacher Institute, supra note [1]. [10] Guttmacher Institute, supra note [1]. [11] National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755 (2018). https: //www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf [12] NIFLA v. Becerra, supra note [11]. [13] Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). https://supreme.justia.com/cases/federal/us/471/626/ [14] Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983). [15] Bolger v. Youngs Drug Products Corp., supra note [14].
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[16] Malcolm, Pregnancy Centers and the Limits of Mandated Disclosure, Columbia Law Review. https://columbialawreview.org/wp-content/uploads/201 9/05/Malcolm-PREGNANCY_CENTERS_AND_THE_LIMITS_OF_MANDATED_ DISCLOSURE.pdf [17] Central Hudson Gas & Electric Corp. v. Public Service Commission, supra note [13]. [18] NIFLA v. Becerra, supra note [11]. [19] Central Hudson Gas & Electric Corp. v. Public Service Commission, supra note [13].
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The Associated Press v. Budowich Honora Muratori
Lines of code stream across a computer monitor.
1. Introduction On January 20th, 2025, President Donald Trump signed executive order 14172, officially changing the name of the Gulf of Mexico to the Gulf of America.1 The directive was part of a broader movement of renaming, which sought to project nationalism through geographic nomenclature. However, the Associated Press (AP), one of the most influential news outlets in the world, made the editorial decision to continue using the term “Gulf of Mexico.” Although the AP acknowledged 1
“Restoring Names That Honor American Greatness – the White House,” The White House, January 21, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/restoring-names-tha t-honor-american-greatness/.
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Trump’s name change, it argued primarily that Trump lacked the authority to rename a body of water bordered by both the United States and Mexico.2 AP also claimed that the former title is more recognizable in the international community.3 The executive response was immediate. Within weeks of AP’s announcement of its editorial decision, the White House limited its access to information. Press Secretary Karoline Leavitt barred the AP’s chief White House correspondent from the Oval Office, where he had been welcomed among other members of the press. On February 14th, the deputy chief of staff of communications, Taylor Budowich, formally announced that all AP journalists were restricted from entering the Oval Office, the East Room, and Air Force One. Within hours of the White House’s announcement, AP reporters were prevented from entering White House press events open to the press pool. The White House administration explicitly conditioned the restoration of press credentials on the AP’s amendment of its style guide. These responses were criticized as illegal forms of retaliation.4 On February 21st, 2025, the AP sued Leavitt, Budowich, and the White House chief of staff Susie Wiles. In its suit, the AP alleged that the White House’s actions constituted targeted exclusion from media events based on an editorial choice. The AP argued that this violated its First Amendment right to free speech and its Fifth Amendment right to due process. In the introduction to its complaint, it stated that citizens and the press had the “right to choose their own words and not be retaliated against by the government.” The AP also emphasized its reputation as a news agency committed to reaching diverse audiences and promoting nonpartisan reporting. The AP made clear that its editorial choice was not an attack on the Trump administration but a matter of recognizing legal jurisdiction. The AP’s case represents a rare instance of public resistance to the Trump administration’s increasing control of the press. Unlike other news outlets, the AP chose formal legal means of opposition over passive professional endurance. Although news organizations have a history of advocating for their journalists, the AP’s decision to sue the government in federal court to protect its right to choose its own words is an anomaly.
2
Ali Bianco, “AP Says It Will Use ‘Mount McKinley’ — but Not ‘Gulf of America,’” Politico, January 24, 2025, https://www.politico.com/news/2025/01/23/ap-mount-mckinley-gulf-of-mexico-006 170. 3
Amanda Barrett, “AP Style Guidance on Gulf of Mexico, Mount McKinley,” The Associated Press, January 23, 2025, https://www.ap.org/the-definitive-source/announcements/ap-style-guidanc e-on-gulf-of-mexico-mount-mckinley/. 4
Aysha Bagchi, “AP Sues Trump Officials over Retaliation for Refusing ‘Gulf of America’ Name Change,” USA Today, February 21, 2025, https://www.usatoday.com/story/news/politics/2025/02/21/ap-l awsuit-white-house-officials-retaliation/79463484007/.
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2. The ACLU’s Amicus Brief The American Civil Liberties Union (ACLU) and the ACLU of the District of Columbia filed a joint amicus curiae brief supporting the AP.5 The amici argued that the importance of preventing the government from “muzzling” the press’s free speech outweighs lesser concerns such as the naming of locations, like the Gulf of Mexico. As the ACLU noted, “Though the disagreement about geographic nomenclature that began this controversy is a small one, the constitutional implications of the dispute itself are profound.”6 The amici opened the ACLU’s argument by describing the United States as a resilient democracy built on systems that allow citizens to hold the government accountable. This system matters most when a government strays from its democratic promises. The ACLU describes moments in American history when speech was unconstitutionally limited, such as during the Cold War. To the ACLU, this case exemplifies both government overreach and the public’s rightful demand for accountability. The amici also framed the Trump administration’s retaliation against the AP not as an isolated administrative action, but as an alarming pattern of infringement that poses a profound threat to democratic accountability. As stated in the summary of the amicus brief’s argument: “the White House’s exclusion of the AP is, alarmingly, part of a broader assault on free expression.” Furthermore, the amici drew parallels between the White House’s actions and tactics historically used by authoritarian regimes to systematically dismantle press neutrality. The ACLU warns that these actions could indicate a dangerous descent into authoritarian patterns. 3. The Limits of First Amendment Freedoms To evaluate the legality of the White House’s press ban, the dispute must be assessed under constitutional standards of speech protection. Established First Amendment frameworks have shown that the threshold for restricting speech is exceptionally high. Several Supreme Court cases address this issue of speech limitations. In Schenck v. United States, the Court established the clear-and-present-danger test, which requires the government to show an imminent danger before it may restrict speech.7 In 1919, Charles Schenck distributed leaflets encouraging resistance to the World War I draft and was charged with inciting people to commit a crime. The Supreme Court upheld Schenck’s conviction, writing that his actions posed a clear and present danger to national security during wartime. Justice Oliver Wendell Holmes, who wrote the court’s decision, compared Schenck’s action to yelling “fire” in a crowded theater when there is no fire. The case Brandenburg 5
“Associated Press v. Budowich - Opposing Government Retaliation against News Outlet for Refusing to Parrot White House’s Views - ACLU of DC,” ACLU of DC, October 7, 2025, https://www.acludc.org/cases/a ssociated-press-v-budowich-opposing-government-retaliation-against-news-outle t-for-refusing-to-parrot-white-houses-views/. 6
Brief for American Civil Liberties Union and American Civil Liberties Union of the District of Columbia as Amici Curiae Supporting Plaintiff-Appellee at 12, Associated Press v. Budowich, No. 25-5109 (D.C. Cir. Oct. 16, 2025). 7
Schenck v. United States, 249 U.S. 47 (1919).
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v. Ohio limited the precedent set by Schenck v. United States. It established that the government cannot restrict speech unless it indicates “imminent lawless action.”8 In this case, Brandenburg, a member of the Ku Klux Klan, delivered a speech in which he explicitly threatened the lives of marginalized people, including African Americans and Jews. He was subsequently charged under Ohio’s Criminal Syndicalism statute, which criminalized acts advocating for crime or violence. The Supreme Court reversed Brandenburg’s conviction, holding that his speech was sufficiently abstract to warrant First Amendment protection. Following Brandenburg v. Ohio, the court established a two-pronged test to determine when speech may be restricted: the speech must be directed toward inciting or producing imminent lawless action and must be likely to incite or produce that action. 4. The Sherrill Standard The most important precedent underlying this case is Sherrill v. Knight. Sherrill was a journalist for The Nation when he was denied a White House pass in 1966.9 This denial was based on unspecified Secret Service security recommendations, and the administration declined to disclose why it had chosen not to grant Sherrill the pass. Journalists do not possess unrestricted access to physical spaces that are otherwise closed to the general public. Spaces like the Oval Office, Cabinet Room, and East Room constitute “nonpublic forums,” or highly restricted areas where constitutional speech protections may be limited. However, the First Amendment bars the government from denying press access based on the content of a journalist’s speech. Sherrill brought a federal suit, arguing that his rights to free speech and due process were being violated. The D.C. Circuit found no evidence that Sherrill had been excluded from White House events based on what he had written. However, Sherrill won his case because, having made press facilities available to journalists, the White House was thereafter obligated to afford them protection within those spaces. Importantly, the circuit also decided that the White House needed to provide a “narrow and specific” standard for denial and that government regulation of speech must be reasonable and viewpoint-neutral. This is the precedent that best supported the AP’s case. The White House excluded the AP from spaces that could be considered “nonpublic forums” or “restricted spaces.”10 But it was excluded based on its viewpoint. In limiting the AP’s speech, the Trump administration failed to remain neutral. 5. Conclusion In a summary of its work in 2025, the Columbia University Knight First Amendment Institute wrote: “What we didn’t foresee was that so many of our civic institutions would buckle. . . media 8
Brandenburg v. Ohio, 395 U.S. 444 (1969).
9
Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).
10 “Associated Press v. Budowich - Global Freedom of Expression,” Global Freedom of Expression, June 9, 2025, https://globalfreedomofexpression.columbia.edu/cases/associated-press-v-budow ich/.
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organizations, many with ample litigation resources, settled lawsuits that would surely have failed on First Amendment grounds had they gone to trial.”11 The Columbia Journalism Review described responses to Trump’s actions as “anticipatory obedience,” a concept articulated in Timothy Snyder’s On Tyranny. This is the idea that authoritarianism is sustained by individuals’ self-censorship and their eagerness to offer a regime what they believe it wants before being asked. For example, in late 2024, Washington Post executives had drafted their endorsement of Kamala Harris for the presidential election. However, the same day that executives from Jeff Bezos’s aerospace company met with Donald Trump, the editorial team was prevented from publishing its endorsement.12 Boston University (BU) Today described the Washington Post’s non-endorsement as anticipatory obedience. It also described Trump’s campaign to villainize the media as a “fake news” effort that has been overwhelmingly successful. BU Today wrote, “We should accept blanket responsibility in the media for failing, yet again, to understand the mindsets and motivations of Trump’s many supporters, who make up literally half of America.”13 AP v. Budowich represents an appropriate and necessary response to the Trump administration’s attack on free speech. Not just Democrats, but believers in the First Amendment need to create the momentum that mobilizes people to fight back publicly, strongly, and legally.
11
Jameel Jaffer, “What a Year It’s Been,” Knight First Amendment Institute, December 19, 2025, https://knig htcolumbia.org/blog/what-a-year-its-been. 12
Michael Sainato, “Bezos Faces Criticism after Executives Met with Trump on Day of Post’s Non-Endorsement,” The Guardian, October 27, 2024, https://www.theguardian.com/media/2024/oct/27/bezos-was hington-post-non-endorsement-election. 13
Brian McGrory, “Washington Post’s Pathetic Lack of Endorsement Shows Bezos Willing to Bow to Trump,” Boston University, BU Today, October 30, 2024, https://www.bu.edu/articles/2024/lack-of-endor sement-shows-bezos-willing-to-bow-to-trump/.
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Bibliography 1. ACLU of DC, “Associated Press v. Budowich - Opposing Government Retaliation against News Outlet for Refusing to Parrot White House’s Views,” October 7, 2025. https://www.acludc.org/cases/associated-press-v-budowic h-opposing-government-retaliation-against-news-outlet-for -refusing-to-parrot-white-houses-views/ 2. Barrett, Amanda. “AP Style Guidance on Gulf of Mexico, Mount McKinley.” The Associated Press, January 23, 2025. https://www.ap.org/the-definitiv e-source/announcements/ap-style-guidance-on-gulf-of-mexic o-mount-mckinley/ 3. Bianco, Ali. “AP Says It Will Use ‘Mount McKinley’ — but Not ‘Gulf of America.’” Politico, January 24, 2025. https://www.politico.com/news/2025/01/23 /ap-mount-mckinley-gulf-of-mexico-006170 4. Brandenburg v. Ohio, 395 U.S. 444 (1969). 5. Brief for American Civil Liberties Union & American Civil Liberties Union of the District of Columbia as Amici Curiae Supporting Plaintiffs-Appellees, Associated Press v. Budowich, No. 25-5109 (D.C. Cir. Oct. 6, 2025). 6. Global Freedom of Expression. “Associated Press v. Budowich,” June 9, 2025. https: //globalfreedomofexpression.columbia.edu/cases/associate d-press-v-budowich/ 7. Jaffer, Jameel. “What a Year It’s Been.” Knight First Amendment Institute, December 19, 2025. https://knightcolumbia.org/blog/what-a-year-its-been 8. McGrory, Brian. “Washington Post’s Pathetic Lack of Endorsement Shows Bezos Willing to Bow to Trump.” Boston University, BU Today, October 30, 2024. https: //www.bu.edu/articles/2024/lack-of-endorsement-shows-bezos -willing-to-bow-to-trump/ 9. Sainato, Michael. “Bezos Faces Criticism after Executives Met with Trump on Day of Post’s Non-Endorsement.” The Guardian, October 27, 2024. https://www.thegua rdian.com/media/2024/oct/27/bezos-washington-post-non-end orsement-election 10. Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). 11. Schenck v. United States, 249 U.S. 47 (1919). PAGE 62
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12. The White House. “Restoring Names That Honor American Greatness,” January 21, 2025. https://www.whitehouse.gov/presidential-actions/2025/ 01/restoring-names-that-honor-american-greatness/
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The Constitutional Right to a Healthy Environment: Held v. Montana Aishani Garg
Snow lingers on a rugged mountain range.
The August 2023 decision in Held v. State of Montana marked a defining moment in U.S. climate litigation. After years of unsuccessful attempts by climate advocates to leverage the federal Constitution to mandate climate action against the U.S. government, such as in Juliana v. United States, Held showed how state-level constitutional “Green Amendments” offer a pathway to climate justice. Held’s success provided a legal blueprint for overcoming hurdles that have historically derailed similar cases. Previously, in Juliana, 21 youth plaintiffs sued the federal government, arguing that the government’s promotion of fossil fuels was causing climate change and violating their rights to life, liberty, and the pursuit of happiness. The case was based on the Atmospheric Trust Litigation framework, which requires the government to protect a livable atmosphere for current PAGE 64
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and future generations. This case was ultimately dismissed in 2025, but has inspired many other successful cases on the national and state levels, such as Held v. Montana. The successful Navahine v. Hawai’i Department of Transportation case in Hawai’i and the unsuccessful Genesis B. v. US Environmental Protection Agency case in California together illustrate how the state constitutional “green amendment” framework that Held established can make American climate litigation more successful. In Held v. Montana, a group of 16 youth, aged 5–22 and chosen by Our Children’s Trust, sued the State of Montana, the Governor, and multiple state agencies for exacerbating the harms they experienced from climate change. The plaintiffs argued that the Montana State Energy Policy Act and Montana Environmental Policy Act (MEPA) were unconstitutional and violated their constitutional right to a clean and healthy environment. Ultimately, the First Judicial District Court ruled in favor of the plaintiffs and concluded that the MEPA and other provisions were unconstitutional. The Supreme Court of Montana agreed with the District Court and held that the MEPA was unconstitutional because it arbitrarily excluded greenhouse gas emissions from environmental reviews and therefore violated the plaintiffs’ right to a clean and healthy environment. The main legal issue addressed in Held v. Montana was whether state laws that actively promote the use of fossil fuels and prohibit state agencies from considering the impacts of greenhouse gases and climate change violate the state constitutional rights of young citizens to a clean and healthy environment. The controlling legal rule was drawn from the Montana Constitution, which states, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” The Montana Supreme Court has interpreted this provision as granting a right to a clean and healthy environment. The plaintiffs’ identities as youth were crucial to the case because their youth allowed the legal team to connect the State’s fossil fuel policies to the harm suffered by “future generations,” as referenced in the constitution. Additionally, their youth allowed the plaintiffs to argue disproportionate harm, because children are affected by climate impacts at higher physiological rates and experience harms unique to youth, such as eco-anxiety. When a fundamental right is allegedly infringed by the government, courts apply the highest level of judicial review, which is strict scrutiny. Under this level, the state must prove two elements: first, that the challenged law serves a compelling governmental interest, and second, that the law is narrowly tailored to achieve that interest. Before they could prove climate damage, the plaintiffs first had to establish sufficient legal injury to have standing to bring the case. Held therefore established a three-pronged legal blueprint for demonstrating this harm. First, the Court expanded the definition of legal injury to include not only physical and property damage but also psychological injuries, such as eco-anxiety and mental distress, and cultural injuries, such as the loss of traditions tied to a stable ecosystem and climate—harms unique to children and Indigenous plaintiffs. Having both youth and Indigenous plaintiffs in this case allowed the legal team to demonstrate unique and legally distinct forms of injury that go beyond simple physical or property damage. Second, the court dismissed the State’s defense that Montana’s greenhouse gas emissions were too small to matter on a global scale. The court found that Montana’s emissions were a “substantial factor” in causing the plaintiffs’ injuries and that the challenged state laws were PAGE 65
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directly responsible for exacerbating the problem. This finding created a standard for tracing local government action to global harm. In specific regulatory contexts, courts apply a legal standard known as de minimis non curat lex—“the law does not concern itself with trifles”—commonly shortened to “de minimis.” This means that insignificant matters do not warrant legal action, so it was imperative that the plaintiffs prove that Montana’s emissions were not de minimis and had global impacts. Third, the Court struck down the MEPA limitation that barred state agencies from considering climate impacts, holding that the State was failing to meet its affirmative duty to protect the environment. The court concluded that ordering the state to comply prospectively with its constitutional obligations constituted sufficient judicial redress. The Held decision has shaped climate litigation by providing a litigation template for youth plaintiffs to use in subsequent cases across the nation. The Held blueprint proved influential in the Navahine v. Hawai’i Department of Transportation case, where youth plaintiffs filed a similar constitutional suit and argued that the state’s continued operation and investment in a fossil-fuel-dependent transportation system violated their constitutional rights. These rights are outlined in the Hawai’i Constitution Article XI, Section 9: “Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.” The Navahine plaintiffs built on the success of Held, particularly by applying its finding that a state’s emissions are not too small to matter on a global scale and by identifying youth- and Indigenous-specific injuries. The Held framework allowed the Navahine plaintiffs to achieve a settlement that mandated that the Hawai’i Department of Transportation create and implement a legally binding, comprehensive plan to reach zero GHG emissions for the transportation sector by 2045. This outcome is both substantive, because it mandated a policy change and not just procedural consideration, and enforceable, because the court retains jurisdiction to supervise compliance through 2045. The Navahine outcome demonstrates that the model formed through the Held case, which combined youth testimony with scientific evidence to enforce a state constitutional right, creates enough legal leverage to compel government agencies to take climate action outside federal jurisdiction. While Held was successful in state courts, the framework did not translate well to the federal system. In Genesis B. v. US Environmental Protection Agency, youth plaintiffs from California attempted to employ a similar litigation strategy, citing personal climate injuries to challenge the EPA’s failure to slow climate emissions. The Genesis B. case grounded its claims in the Fifth Amendment’s Equal Protection Clause, arguing that the EPA’s use of certain economic discount rates discriminated against children by valuing their future health and life less than those of adults. The economic discount rates are the regulatory percentages (3% and 7%) used by the EPA to calculate the present value of future climate benefits, which value the health and safety impacts experienced by children decades from now less than those of adults today. Despite the emotional and scientific strength of the argument, the federal court dismissed the case for lack of standing, which reinforced the difference between the legal environments of the three cases. The U.S. Constitution, unlike the state constitutions, lacks an explicit right to a healthy environment, so without a fundamental right at stake, the court refused to apply strict scrutiny. PAGE 66
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Additionally, federal courts are bound by the restrictive standing requirements of Article III of the Constitution, meaning plaintiffs must have standing to sue and must show they have personally suffered or are in imminent danger of suffering an injury. It found that the specific regulatory policies challenged were not traceable to the plaintiffs’ injuries and that the requested judicial relief was non-redressable, meaning the court could not remedy the harm, leaving the plaintiffs without standing to pursue the case. The contrast between the success of the Navahine case and the dismissal of the Genesis B. case shows that Held’s framework is not nationally applicable across the U.S. legal system. It is contingent on the existence of a state-level constitutional Green Amendment that allows courts to apply a more flexible analysis and impose a judicially enforceable affirmative duty on the state. The decision in Held v. State of Montana established the modern blueprint for youth climate litigation and shifted the legal struggle for a healthy environment away from the gridlocked federal system and onto the more receptive state systems. By expanding the scope of cognizable injuries and setting a low bar for causation regarding state-level emissions, Held empowered youth plaintiffs to demand accountability, as seen by the substantive policy victory secured in Navahine v. Hawai’i Department of Transportation. Even though the attempt to transfer this framework to the federal system in Genesis B. v. US EPA failed, this does not diminish or negate the significance of Held. State constitutions remain the strongest ground for enforcing the right of present and future generations to a clean, healthy environment until a federal Green Amendment is adopted. The Held framework remains the primary engine behind constitutional climate justice, helping the legal system advance systemic climate action.
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A Lifetime Sentence: Intimate Partner Violence as a Reentry Risk for Female Offenders Hallie Sternblitz, Georgetown University
Originally written for Professor You-Me Park for the course Violence, Gender, and Human Rights at Georgetown University, December 2025.
Lady Justice balances her scales in bronze.
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Abstract: Emerging data reveals that a large proportion of incarcerated women are survivors of intimate partner violence (IPV) and that domestic abuse is a risk factor for female criminal offenses. However, there is currently a gap in feminist legal literature that neglects the elevated risk of intimate partner violence female offenders face post-release from carceral facilities. In this paper, I attempt to fill this gap in the literature through a two-pronged approach that examines both the risk factors for IPV victimization and incarceration as a cause of each risk factor. Though female offenders reentering society face a multitude of challenges that may contribute to their elevated risk of IPV victimization, I focus on poverty, mental illness, physical disability, substance abuse, and a history of sexual abuse victimization. In doing so, I illuminate the need for empirical research on the specific correlation between past incarceration and future IPV victimization, as well as potential interventions to reduce the elevated risk that post-release female offenders face.
Introduction Each year, roughly 2.5 million women and girls are released from U.S. prisons and jails. After experiencing the high rates of violence and traumatization that take place within prison walls, most offenders welcome their release and the opportunity to reenter society. However, for female offenders, trauma during incarceration is only the beginning of their victimization. In this paper, I will argue that formerly incarcerated women are at a higher risk for intimate partner violence (IPV) victimization due to specific conditions that the prison and reentry systems inflict on them. As such, a history of incarceration should be recognized as a risk factor for IPV victimization, and further research should be conducted to quantify this link. It is important to recognize that both the issue of IPV and the struggles of reentry for formerly incarcerated individuals are worldwide problems that affect people of all genders. However, the scope of this paper will be limited to the unique IPV-related consequences women in the U.S. face as a result of their carceral status. To establish causation, I will use a two-pronged approach. First, I will examine the various risk factors that increase the likelihood of an individual becoming an IPV victim. These risk factors include but are not limited to poverty, mental illness, physical disability, substance abuse, and a history of sexual abuse. Next, I will demonstrate that incarceration causes or exacerbates each risk factor, thereby increasing an individual’s risk of IPV victimization. Furthermore, I will outline the mechanisms through which IPV perpetrators weaponize the carceral status of formerly incarcerated women to compel further submission to abuse. Finally, I will conclude with possible interventions to reduce the increased risk of IPV victimization that formerly incarcerated individuals face post-release.
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IPV Risk Factors Every minute, twenty people experience IPV in the U.S., with one in three women being victimized by physical violence at the hands of their intimate partner at some point in their lives. For many of these women, this violence is not simply a trauma from which to heal but a death sentence, with approximately ninety women killed by their partners each month. This is unsurprising, given that 55% of all female homicide victims are killed by a current or former domestic partner. As such, the issue of IPV is not only widespread but fatal, underscoring the urgency of addressing causal factors to protect women vulnerable to victimization. Though victims of IPV are in no way responsible for the harm they face, various factors can put an individual at high risk of victimization. First, the link between socioeconomic status and IPV is well established, as women with incomes below $10,000 experience IPV at an annual rate five times greater than that of women with incomes above $30,000. Studies show a clear correlation: as a woman’s income increases, IPV against her declines; as her income decreases, IPV against her surges. This correlation logically follows under the household bargaining model in which an individual’s power in their domestic relationship is a direct result of the proportion of income they provide. Furthermore, a household’s combined income also has a strong negative correlation with the prevalence of IPV. This puts women living in poverty at higher risk of being victimized by their partners. One study showed that the mere perception of economic distress was sufficient to drive up IPV rates in the households studied. The researchers found that women in relationships with either real or perceived financial struggles were much more likely to experience IPV at both a higher frequency and intensity, leaving poorer women with greater sustained injuries and a higher frequency of attacks. As such, poverty is an established risk factor for IPV victimization and must be recognized and adequately addressed in any policy solution meant to serve victim populations. Second, women with mental illness or mental disabilities are more likely to be victimized by their partners. One study found that women with severe mental illness are three times more likely to experience IPV than the general female population. This is likely due to some of the associated symptoms and impacts of common mental illnesses, such as low self-esteem, high levels of dependency on their partners, functional disabilities, social isolation, and the stigma against soliciting help. The dependency that many individuals with mental illness require puts them in a unique power dynamic in which their health, safety, and functioning are often reliant on their intimate partner. Like the explanation for the correlation between poverty and IPV, the correlation between mental illness and IPV can also be reduced to a simple model of power dynamics. Third, the relationship between physical disability and IPV prevalence follows a similar trend. According to the Department of Justice, individuals with disabilities experience IPV at a rate five times greater than the able-bodied population. Again, this correlation is a consequence of imbalanced power dynamics in which one’s disability requires increased dependency on an intimate partner. Individuals with both mental and physical disabilities face unique forms of IPV. For instance, abusers may tamper with, refuse to administer, or over-administer their partner’s medication. Similarly, the partners of hard-of-hearing individuals often remove or damage their PAGE 70
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hearing aids, which fuels the isolation and dependency previously discussed. As such, disability, whether mental or physical, puts individuals at a greater risk of IPV victimization. Fourth, the presence of a substance abuse disorder, or the general consumption of drugs or alcohol, is a strong indicator of the prevalence of IPV. One study found that a woman’s substance use directly increases the likelihood she will experience IPV, independent of whether her partner had also consumed drugs or alcohol. Once again, this is likely due to shifted power dynamics as a result of the woman’s inebriated state. Substance use often causes increased dependency, diminished mental faculties, difficulty with rational decision-making, and sometimes a lack of consciousness. This leaves a woman vulnerable to manipulation and sexual exploitation by her partner. Thus, women who often consume intoxicating substances are at increased risk of IPV victimization. Fifth, women who have previously experienced sexual abuse are more likely to be revictimized by their partners. In one study, 53% of women who had been sexually abused subsequently experienced IPV. Furthermore, the IPV faced by sexual abuse survivors was categorized as significantly more severe than that experienced by the control population. This trend can be explained by the cyclical nature of violence and trauma in which victims adopt learned relational behaviors that make them more vulnerable to revictimization. For instance, victims of sexual violence in particular are often manipulated into construing abuse as an act of love. Moreover, sexual abuse survivors often have low self-esteem and internalize the abuse as something they “deserved” due to their perceived worthlessness. This can impact the intimate partners they choose later in life as well as the power dynamics within those relationships, putting sexual abuse survivors at an increased risk of experiencing all types of violence at the hands of their partners. The Effect of Incarceration on the Prevalence of IPV Risk Factors Now that the various risk factors for IPV victimization have been established, I will turn to how an individual’s carceral status exacerbates each risk factor to demonstrate that incarceration indirectly makes one more likely to experience IPV post-release. First, formerly incarcerated individuals, especially women, are more likely to be impoverished. According to one study, the median income of incarcerated individuals during their first year after release is roughly $6,000. For female offenders alone, $6,000 is likely an overestimate, given that women face significantly higher rates of unemployment and are less likely to have a high-school-level education than their male counterparts during the reentry process. As previously stated, an income level below $10,000 makes a woman five times more likely to experience IPV. While poverty is likely a confounding variable that independently makes individuals both more likely to become incarcerated and more likely to experience IPV, incarceration itself is a cause and perpetuator of poverty. For one, employers and landlords often discriminate against individuals with a criminal record, either by requiring applicants to check a box disclosing past convictions or by administering background checks. Newly released offenders thus have trouble finding employment and housing. Female offenders experience significantly higher rates of both unemployment and homelessness than men once released, with PAGE 71
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75% of formerly incarcerated women reporting that they have experienced homelessness. As such, women are more likely to fall into a dependent relationship, as relying on someone else may be their only option besides sleeping on the street. Thus, even if an individual was financially unstable before being incarcerated, incarceration likely worsened their economic situation, making IPV victimization more likely. Second, incarceration can cause mental illness, which puts individuals at a greater risk of being victimized by their partner post-release. The carceral setting causes this through several mechanisms: (1) due to fewer, more centralized facilities, the average female prisoner is further from her relatives than the average male prisoner, which causes feelings of isolation and often depression, (2) women are placed in solitary confinement at disproportionate rates for minor infractions, which is proven to cause irreversible psychological damage and often produces psychiatric disorders, and (3) the violence in prisons induces hyper-vigilance and often causes Post-Traumatic Stress Disorder (PTSD). Furthermore, women’s facilities are less likely than men’s facilities to have programming, which is one of the most effective tools for combating the onset of mental illness during incarceration. Though many incarcerated individuals are mentally ill at the time of arrest, carceral facilities both exacerbate the symptoms of preexisting mental illnesses and trigger new illnesses, which puts formerly incarcerated women in a more vulnerable state once released. Many individuals obtain physical disabilities during their incarceration as a result of poor prison conditions as well as heightened violence. For example, many prisons, especially in Texas and Florida, do not have air-conditioning. As a result, hundreds of thousands of incarcerated individuals are at risk of heatstroke, which can affect their ability to walk as well as their speech. Incarcerated individuals are also at a greater risk of interpersonal violence and self-harm, both of which can leave permanent injuries that last far longer than their time behind bars. Furthermore, incarcerated individuals do not have the freedom to seek treatment for their physical or mental impairments on their own and instead require state or federal intervention to receive medical attention. As a result, many of their medical conditions go untreated, which can worsen the long-term effects of both preexisting and newly presenting illnesses and ailments. As such, formerly incarcerated individuals may be more likely to have a physical disability than the general population and may experience more severe symptoms than others with the same condition who were able to obtain treatment. As established, a physical disability creates dependency that puts individuals at a greater risk of IPV victimization. Fourth, the reentry process acts as a major barrier to drug and alcohol recovery. Newly released individuals were less likely to intend to recover from their addiction and expressed less optimism about recovery than those still incarcerated. This was established to be a result of the overbearing legal oversight and government control of recent parolees, which has substantial negative effects on self-image and self-worth. Therefore, many recently released individuals turn to substances as a coping mechanism for the trauma of incarceration. In fact, those released face an extremely high and disproportionate risk of drug overdose in the first two weeks after release. Women face a particularly high risk given that they are more likely to be rejected by their families once released, which causes extreme emotional distress and fuels substance use. Additionally, financial instability compounds this risk, often compelling PAGE 72
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female offenders to turn to illegal drug-related activity as a last resort for income. As such, formerly incarcerated women consume intoxicating substances at higher rates, which, in turn, makes them more vulnerable to IPV victimization. Finally, female prisoners are extremely likely to experience sexual violence while incarcerated, making future victimization significantly more likely. 25% of incarcerated women report being sexually abused by male prison guards, a statistic that likely underrepresents the true prevalence. Given that over half of sexual assault survivors later experience IPV, the abuse these women endure while incarcerated can be directly linked to their subsequent victimization by intimate partners after release. Especially for incarcerated individuals, the sexual assault recovery process includes intense feelings of self-hatred, self-blame, and self-doubt, which can make a survivor vulnerable to falling into a relationship that validates these feelings through revictimization. While incarceration directly contributes to each of the identified risk factors for IPV victimization, it is important to recognize that pathways to experiencing violence at the hands of one’s intimate partner are not always linear. Instead, these factors, including incarceration, influence each other in a symbiotic relationship through which IPV thrives. For instance, sexual abuse in prison may lead to a mental illness such as PTSD, which can subsequently lead to a substance abuse disorder that makes an individual less able to maintain employment, causing them to fall below the poverty line. As such, these factors work both separately and together to fuel intimate partner violence. Furthermore, an abusive partner can weaponize a survivor’s carceral status as a tool for manipulation and control. For example, abusers may intentionally force their partner to violate the conditions of parole and then threaten to report them if they refuse to comply. This is often the case with parolees who are not allowed to consume intoxicating substances. Similarly, perpetrators of IPV may force their partner to miss a supervisory meeting or threaten to disclose their criminal record to community members unless they submit to the abuser’s demands. As such, incarceration itself is likely a direct risk factor for IPV, as it shifts the power dynamics in a relationship, especially during the parole period. However, the direct link between female incarceration and post-release IPV victimization has yet to be studied, and further research is needed to confirm and quantify this correlation. Conclusion In conclusion, formerly incarcerated women face an elevated risk of IPV victimization post-release. This is due to incarceration’s individual and compounded effects on the various risk factors that make an individual vulnerable to being victimized by their partner, including but not limited to financial instability, mental and physical disabilities, substance use, and past experiences of sexual violence. These findings illuminate the need for empirical research on the direct correlation between past incarceration and post-release IPV for women in the U.S. Furthermore, the link between carceral status and IPV calls for several policy interventions to protect women as they reenter society. I propose three policy solutions.
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1. To address the issue of financial instability post-release, which often leads to financial dependency on partners and encourages women to return to abusive relationships, state governments should provide increased funding for nonprofit employment services organizations that specifically serve women in the reentry process. Several organizations of this nature exist, though they are limited in reach and capacity due to a lack of funding, and many do not prioritize the unique needs of female offenders. The federal government’s National Plan to End Gender-Based Violence vows to improve federal resources for similar organizations; however, including this specific sector of nonprofits in state and federal grant policies would significantly improve a woman’s ability to leave or stay away from her abuser. 2. To mitigate the impacts of incarceration-facilitated mental illness, physical ailments, and sexual abuse, I propose implementing a robust programming structure. This would include but not be limited to group therapy, occupational training, and substance abuse recovery classes. Programming has been shown to reduce interpersonal violence in prisons but is often not implemented or prioritized in women’s facilities to the extent that it is in men’s facilities. Furthermore, therapeutic programming, as a form of early intervention, can reduce the long-term negative effects of mental illness and sexual abuse. 3. To address the rampant sexual abuse taking place within women’s carceral facilities, both federal and state governments should conduct annual investigations into the safety of female prisoners. This should include individual, anonymized interviews with both prisoners and guards, and the safety of those who report abuse should be prioritized. Through these interventions, policymakers and correctional authorities can effectively reduce the likelihood of female offenders experiencing IPV post-release. This issue must be addressed promptly with significant funding and a sustained commitment to further research, as women are being sentenced to a lifetime of violence every minute.
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Work Cited 1. American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders. 5th ed. Washington, DC: American Psychiatric Publishing, 2013. 2. Center for American Progress. “Supporting Women Affected by the Criminal Legal System.” Center for American Progress. Accessed December 13, 2025. https://ww w.americanprogress.org/article/playbook-for-the-advanceme nt-of-women-in-the-economy/supporting-women-affected-by-t he-criminal-legal-system/. 3. City of Puyallup. “Domestic Violence Statistics.” City of Puyallup. Accessed December 13, 2025. https://www.puyallupwa.gov/535/Domestic-Violence-S tatistics. 4. Columbia University Mailman School of Public Health. “Hazardous Heat and Humidity Are Widespread in U.S. Jails and Prisons.” Accessed December 13, 2025. https: //www.publichealth.columbia.edu/news/hazardous-heat-humid ity-widespread-u-s-jails-prisons. 5. Corrections1 Staff. “The Pseudo-Family Phenomenon in Women’s Prisons.” Corrections1. Accessed December 13, 2025. https://www.corrections1.com/jail-man agement/articles/the-pseudo-family-phenomenon-in-womens-p risons-O1bLxabbPiXo1s4Z/. 6. Cross, Courtney, National Clearinghouse for the Defense of Battered Women, Courtney Cross, Esq., Courtney Cross, and National Clearinghouse for the Defense of Battered Women. “Victimized Again: How the Reentry Process Perpetuates Violence Against Survivors of Domestic Violence,” October 2013. https://bwjp.org/wp-conte nt/uploads/2023/11/Victimized-Again-2013-%E2%80%93-OVW-l ang-updated-pagination.pdf 7. Grogan-Kaylor, Andrew, et al. “Intimate Partner Violence and Economic Hardship.” Journal of Family Violence 28, no. 8 (2013): 787–796. https://pmc.ncbi.nlm.n ih.gov/articles/PMC3693773/. 8. Haney, Craig. “The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment.” ASPE, January 30, 2002. http://webarchive.urban.org/pub lications/410624.html. 9. Harris, Jessica C., and Chris Linder, eds. Intersections of Identity and Sexual Violence on Campus: Centering Minoritized Students’ Experiences. New York: Routledge, 2023.
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10. Henson, Tammy. “Poverty, Domestic Violence, and the COVID-19 Pandemic.” GGU Law Digital Commons. n.d. https://digitalcommons.law.ggu.edu/pov law/16/. 11. Howard, Louise M., et al. “Domestic and Sexual Violence Against Patients with Severe Mental Illness.” Psychological Medicine 40, no. 5 (2010): 881–890. https://www. cambridge.org/core/journals/psychological-medicine/articl e/domestic-and-sexual-violence-against-patients-with-sev ere-mental-illness/A7787F698B3B2FBAEA8172A34F3CF246. 12. Institute for Research on Poverty. “Connections Among Poverty, Incarceration, and Inequality.” University of Wisconsin–Madison. Accessed December 13, 2025. https: //www.irp.wisc.edu/resource/connections-among-poverty-inc arceration-and-inequality/. 13. Montgomery County Office of Human Rights. “Ban the Box.” Montgomery County, Maryland. Accessed December 13, 2025. https://www.montgomerycountymd .gov/humanrights/ban-the-box/index.html. 14. National Institute of Justice. When Violence Hits Home: How Economics and Neighborhoods Play a Role. Washington, DC: U.S. Department of Justice, 2001. https: //www.ojp.gov/pdffiles1/nij/grants/193434.pdf. 15. National Organization for Women. “Femicide: Why Being a Woman Puts You in Danger.” NOW Blog. Accessed December 13, 2025. https://now.org/blog/femicid e-why-being-a-woman-puts-you-in-danger/. 16. Patel, Sejal H., et al. “Disadvantaged Women Are at Higher Risk of Intimate Partner Violence.” Journal of Women’s Health 23, no. 9 (2014): 720–727. https://pmc.nc bi.nlm.nih.gov/articles/PMC4019993/. 17. Urell, Aaryn. “Prison Health Care Crisis Mounts as Incarcerated Population Ages.” Equal Justice Initiative, May 14, 2024. https://eji.org/news/prison-health-c are-crisis-mounts-as-incarcerated-population-ages/. 18. Prison Policy Initiative. “Housing: A Major Barrier to Reentry.” July 19, 2019. https: //www.prisonpolicy.org/blog/2019/07/19/reentry/. 19. Saliba, Samiera. “Rape by the System: The Existence and Effects of Sexual Abuse of Women in United States Prisons.” UC Law Journal of Race and Economic Justice 10, no. 2 (2013): 277–306. https://repository.uclawsf.edu/cgi/viewconte nt.cgi?article=1107&context=hastings_race_poverty_law_jour nal. PAGE 76
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20. Solitary Watch. “New Fact Sheet on Women in Solitary Confinement.” Solitary Watch. August 26, 2024. Accessed December 13, 2025. https://solitarywatch.org/ 2024/08/26/new-fact-sheet-on-women-in-solitary-confineme nt/. 21. U.S. Government Accountability Office. Criminal Justice: Disparities Exist Across Multiple Stages of the Justice System. GAO-24-106366. Washington, DC: GAO, 2024. https://www.gao.gov/products/gao-24-106366. 22. Yang, Chiao-Yu. Incarceration Experiences and Post-Release Drug Addiction Recovery Among Previously Incarcerated Women With a Drug Addiction. Master’s thesis, University at Albany, State University of New York, 2023. https://scholarsarchive. library.albany.edu/cgi/viewcontent.cgi?article=4534&contex t=legacy-etd.
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