Preserving America’s Promise: Strategies to Restore National Competition and the Protection of International Students in U.S. Immigration Law
State Powers and the Supreme Court
An Analysis of the Arguments Against Donald Trump’s Disqualification
From the Blog
On Representation in Elite Institutions
The Consequences of Overturning the Chevron Deference
Arizona Abortion Ban Reveals Dangerous Implications of the Dobbs Ruling
The Right to Choose: Rethinking Autonomy in End-of-Life Care
read more from the tulr blog at medium.com/tufts-undergraduate-law-review
Isaac Ulloa Antonio
Flora Meng
Zayyan Abbas
Linda Huang, Ananya Randeira
James McGrath
Dear readers of the Review,
We are so excited to announce the renaissance of Tufts’ Undergraduate Law Review this year. The last time a law review at Tufts University was regularly published was in 2009, and we are equal parts thrilled and humbled by our new charge to reinstate the Review such that Tufts community members — across all schools and including students and faculty, alike — can have a new outlet with which they can engage civically and politically.
The legal systems here in the United States and abroad have increasingly become arenas in which contentious political issues are being fought: questions of religious freedom, privacy, technocracy, democracy, and access to reproductive healthcare are among those sites of dissonance. Thus, we believe that this sort of outlet — for which law is the primary lens of analysis — can help writers and readers alike in their pursuit to grapple with these political and legal battles, using the law as a source of wisdom and clarity in the process. Within this inaugural issue, our writers address many of these sites of contention. They write thoughtfully about immigration, state powers, bodily autonomy, and, particularly pertinent to our campus now, about the status of university admissions.
As a new publication, the task at hand is twofold: make a good publication, and make it sustainable. We want TULR to be a host for critical, thoughtful, and meaningful writing — research which asks crucial questions, considers broad and minute developments, and has its ears to the ground. Our undergraduates, graduate students, and faculty members have insights that are worth sharing and we can not wait to give them a space to share those insights. Simultaneously, we plan for TULR to become a fixture of Tufts’ publication landscape. With the support of Tufts University’s Tisch Fund for Civic Engagement, the TULR now has institutional backing to ensure that this publication — and all we aim for it to deliver — will last.
For those interested in contributing to the Tufts Undergraduate Law Review in any capacity (from writing or editing to graphics and publicity), please contact us at tuftslawreview@gmail.com or visit our Instagram page, @tuftslawreview. We are thrilled to start this journey of intellectual exploration and critical consciousness, and we can not wait to do it with all of you.
Enthusiastically, Nikhil Vootkur, Cathy Yao, Anna Fattaey, and Audre Zvinys
Founding
Editors of the Tufts Undergraduate Law Review
Preserving America’s Promise
Strategies to Restore National Competition
and the
Protection of International Students in U.S. Immigration Law
Flora Meng A24
Edited by Susie Li
ABSTRACT:
This paper seeks to address the most pervasive challenges confronting both prospective and current international scholars within the United States by identifying barriers to their academic and professional aspirations, advocating for targeted policy reforms, and underscoring the need to maintain existing frameworks of protection. Through a threepronged approach, this discussion elucidates America’s competitive interests in the global landscape and highlights the long-term benefits of fostering a welcoming environment for international scholars. It achieves this by identifying barriers deterring international students from selecting the U.S. as an ideal destination for education, promoting flexibility for foreign students during their academic tenure and post-graduation stage, and demonstrating the significance of current safeguards for international study in America. Additionally, this paper proposes three primary strategies for Congress to combat existing threats to international scholars and U.S. competition, namely the establishment of a national recruitment strategy, the granting of limited work authorization for spouses of individuals on a F status, and the modernization of immigration processing technology. Finally, it presents a case for the preservation of existing protective mechanisms that respect the spirit and letter of the law, such as the duration of status provision and experiential learning opportunities.
“It says something about our country that people around the world are willing to leave their homes and leave their families and risk everything to come to America. Their talent and hard work and love of freedom have helped make America the leader of the world.”
George W. Bush.
Since 2016, an unprecedented level of noise surrounding discourse on U.S. immigration has rendered the basis of America a source of anxiety rather than a beacon of hope. While political dilemmas on immigration policy remain largely as theoretical threats in the minds of everyday Americans, they have manifested into tangible obstacles for international students pursuing an education within U.S. borders. From deportation proceedings based on unknown status violations to the Department of Homeland Security’s (DHS) attempts to dismantle critical provisions, such as the duration of status, increasingly stringent federal policies have reshaped the perception of the U.S. as a welcoming haven for foreign scholars. Given this grim reality, it is essential to prioritize policies that mitigate the adverse effects endured by the nation due to the lingering effects of a recently hostile immigration climate and to uphold existing measures that reasonably address the unique obstacles encountered by international students studying in the United States.
The chilling effect of legislative decisions during the Trump administration has not only instilled a culture of fear in the international community, but it has also led to quantifiable repercussions. For instance, recent data show that enrollment at U.S. universities fell 15% in the 2020-2021 school year.1 The pandemic has also shed light on the indisputable impact of international students on the U.S. economy. Findings show that nearly one million international students at U.S. colleges and universities contributed $28.4 billion to the U.S. economy during the 2020-2021 academic year, a decline of nearly 27% from the prior academic year as less scholars chose to study in the country due to COVID-19.2
Additionally, there are various other conditions in the current immigration landscape that prohibit otherwise qualified scholars and foreign talent from selecting the United States as a worthy destination for study. One common barrier is the unpredictable nature of visa application processing. Security clearances, a lack of transparency, and administrative efficiency often cause applications to take longer than 60 days to process, which can be risky for individuals who have time-sensitive work.3 To address
this, Congress should provide an accelerated application processing time for individuals pursuing professions with an urgent nature, such as Master’s or Ph.D. students with job opportunities to conduct scientific research. Another limitation is the lack of a dual intent provision for F status visa holders. The doctrine of dual intent provides lawful status to foreigners by allowing them to remain in the U.S. for a temporary duration with an immigrant intent.4 This is significant as it allows an individual to seek a path to permanent residence while on a temporary visa, such as the H-1B, K-1, or O-1. Prior to the introduction of dual intent, anyone with a non-immigrant visa living in the U.S. was presumed by DHS to possess immigrant intent.5 Visa holders would then have to prove that they are not visiting the U.S. with the intent to immigrate. Although consular officers have traditionally given more leniency to students on a F status in the question of proving non-immigrant intent, such a requirement remains harsh given the reasonable expectation of many students to seek work experience in the U.S. following graduation.
Most recently, an amendment to a passed House bill proposed dual intent for international students with F visas in STEM fields.6 This came as bipartisan support for expanding dual intent to F visas became widespread in the past few years. To illustrate, a 2020 APS survey found that providing dual intent for the F-1 visa and providing a clear path to a green card for international students with a STEM degree from a US institution will re-establish America as the first choice destination for top scholars globally.7 Dual intent for F status students can also offer protection against immigration consequences, such as refusal of admission or deportation upon evidence that an individual has immigrant intent.8 In addition, without dual intent for F-1 visa holders, international students are also vulnerable to executive overreach, former President Trump’s ban on the F-1 visa for Indian students being a prime example.9
While these developments mark a transformative stride for theinternational community, existing policy proposals remain exclusionary in nature, largely neglecting the value of non-STEM degrees. “We are also concerned about the ramifications of providing only STEM international students a path to a green card, as NAFSA believes strongly in the value of non-STEM majors to the US as well,” NAFSA Deputy Executive Director of Public Policy Jill Allen Murray said.10 It is clear that the longstanding stigma against the arts and humanities, particularly in an immigration context, has carved a bleak narrative surrounding non-STEM subjects. However, many top technology executives emphasize the invaluable nature of various non-STEM qualifying disciplines. “Languages, art, history, economics, ethics, philosophy, psychology and human development courses can teach critical, philosophical and ethics-based skills that will be instrumental in the development and management of AI solutions,” a Microsoft executive said.11 Given these concerns, Congress should take in account current calls to extend dual intent to a
number of non-STEM graduates when developing the path to a green card for international students.
Finally, the culmination of hostile policies against international students during the Trump-era has fostered an uninviting culture surrounding immigration that needs to be reversed. Although the Biden Administration has taken steps to recognize this deterioration in values and legislative priorities, shown through provisions such as the recapturing of green-cards in the Build Back Better Act, there remains a noticeable lack of policies specifically addressing issues facing international students within the current administration’s immigration agenda.12 In order to restore and preserve America’s legitimacy as a welcoming nation for foreign scholars, this gap must be bridged.
To address such a gap, Congress should demonstrate a necessary paradigm shift by establishing a national recruitment strategy. This measure would require active collaboration between higher educations institutions, international organizations, and the federal government. Although it seems counterintuitive for America to seemingly move backwards and initiate efforts that only seemed to be relevant decades ago, regressive policies in recent years have necessitated this restorative approach. In terms of retaining talent in the U.S. and creating support systems for existing international students, there are also various policies that Congress should enact. First, one of the largest barriers to studying in the U.S. as an international student is the limited opportunities to work as a foreign citizen. Currently students on a F-1 or M-1 visa are not allowed to work off-campus during their first academic year.13 Being confined to off-campus work during this time may virtually limit all possible work opportunities for some as universities are increasingly offering on-campus jobs on a for need-basis, disproportionately affecting international students who have limited access to financial aid. As such, Congress should limit any arbitrary barriers that prevent international students from working within the timeframe of their visa.
Another provision that would enable foreign talent to contribute to U.S. society in the long-term is to provide limited work authorization for spouses of individuals on a F status.14 Many individuals pursuing a master’s degree or Ph.D. require an extended number of years for study. Temporary or limited work authorization for the spouses of F status holders will create a greater incentive for individuals to pursue high-level academia and research in the United States, which can contribute to America’s innovation and socio-economic position in the global sphere.
Finally, Congress should place legislative pressure on USCIS to improve the predictability of processing times and prioritize technological improvements to modernize its immigration system.15 The severity and occurrence of violating immigration status is often unbeknownst to the average international student. This is exacerbated by the fact that as of January 2019, the
processing time for extension of foreign student status is 11.5 to 15 months. The leniency given to USCIS’ late processing times is not equally extended to international students, who fall out of status as a result of the organization’s inefficiency. As such, Congress needs to address the root of the issue by either instituting requirements for a maximum USCIS processing time that is substantially lower than the current rates or fund technological research to develop more streamlined processing.
In addition to advancing new legislation to support and protect international students in the U.S., it is also imperative to preserve existing structures that achieve these goals. One of such structures is the duration of status or D/S. Since the 1980s, D/S allows students who are in compliance witsh the law to stay in the U.S. for full period of time they are pursuing their studies and practical training. However, in 2018, 2019, and 2020, DHS continuously proposed the elimination of the duration of status provision and instead, urged for a fixed time period of admission, regardless of the length of a student’s program.16 This would compel students whose duration of study is longer than DHS’ fixed time frame of two or four years to apply for an extension of stay, an added administrative burden that could increase the possibility for students to inadvertently fall out of status. For students whose length of study changes due to gap years, additional schooling, unforeseen circumstances, or more advanced schooling, multiple extensions may be required. Beyond harming international students, such a move would perpetuate backlogs and delays that have exponentially increased USCIS processing times, which have risen 91% since 2014 and
46% between 2018-2020.17Although such a proposed rule has yet to go in effect today, DHS’ persistence to undermine a historically established process of protection is alarming and must be prohibited.
A comparable measure that warrants protection is experiential learning opportunities. Since 2017, USCIS has attempted to limit the scale or eliminate OPT, a temporary employment benefit that allows international students to work in the U.S. for one to three years post-graduation.18OPT is essential to granting international students the opportunity to apply their skills and talents in the U.S. workforce. It is a necessary and reasonable duration of status that prevents a forced removal of foreign students immediately after graduation. To restore America’s position as a leading nation of opportunity and progress, Congress ought to combat regressive efforts to worsen the treatment and quality of life of lawful international students.
Beyond the need to revitalize the nation’s spirit of immigration when it comes to attracting and recruiting talent, the U.S. ought also to enact comprehensive legislative reform to limit bad-faith challenges for international students. Legislative reasons aside, Congress should also enforce protections of their treatment given their status as lawful individuals in America deserving of basic rights. To revitalize the spirit of any major aspect of U.S. society is an undeniably challenging feat. Nevertheless, these efforts would serve as mutually beneficial endeavor that bestows upon international students invaluable opportunities while bolstering the United States’ position as a true global leader.
NOTES:
1 Silver, Laura. “Amid Pandemic, International Student Enrollment at U.S. Universities Fell 15% in the 2020-21 School Year.” Pew Research Center, Pew Research Center, 9 Dec. 2021.
2. Stewart, Erica and Matt, Ruffner. “New NAFSA Data Show Largest Ever Drop in International Student Economic Contributions to the U.S.” NAFSA, 15 Nov. 2021
3. Murray, Jim Allen. “Welcoming International Students and Scholars.” NAFSA.
6. Anderson, Stuart. “House Passes Bill with More Measures for Immigrants in STEM Fields.” Forbes, Forbes Magazine, 14 Apr. 2022.
7. “Visas & Immigration.” American Physical Society
8. Rogers, Elizabeth. “What Are Dual Intent Visas?”
9. Ibid.
10. “US Visa Update: New Us Act Would Give Stem Phd Graduates Direct Pathways to a Green Card.” Study International, 7 Feb. 2022.
11. Ibid.
12. “President Biden Announces the Build Back Better Framework.” The White House, The United States Government, 1 Nov. 2021.
13. Stewart, Erica and Matt, Ruffner. “New NAFSA Data Show Largest Ever Drop in International Student Economic Contributions to the U.S.” NAFSA, 15 Nov. 2021.
14. Murray, Jim Allen. “Welcoming International Students and Scholars.” NAFSA,
15. Murray, Jim Allen. “Welcoming International Students and Scholars.”
16. “The Federal Register.” Federal Register :: Request Access. Accessed February 28, 2024.
17. Murray, Jim Allen. “Welcoming International Students and Scholars.”
18 Ibid.
State Powers and the Supreme Court
An Analysis of the Arguments Against Donald Trump’s Disqualification
Colin Cooper A26
Edited by Salvatore Genovese
ABSTRACT:
Section 3 of the 14th Amendment was a little-known and rarely cited piece of the United States Constitution until January 6th, 2021. On that day, many people believe Donald Trump committed insurrection in his attempt to overturn the results of the 2020 Presidential Election. Several Colorado Republican and Independent voters, led by Norma Anderson, were among those who believed the former president engaged in insurrection. The voters sued the Colorado Secretary of State wanting to have Trump removed from the Republican Primary ballot citing Section 3 of the 14th Amendment, the Disqualification Clause. Since then, the case Anderson v. Griswold has risen through the Colorado Court system. The Colorado State Supreme Court ultimately ruled in favor of the Anderson Litigants disqualifying Trump from the Colorado primary ballot. Trump appealed the ruling to the United States Supreme Court. The Court accepted his appeal. The case then became known as Trump v. Anderson (US 23-719).
I intend to explore the arguments presented to the Supreme Court including why Section 3 does not apply to the President, why the Judicial Branch does not have the authority to use Section 3 to disqualify an individual from holding office, and relevant legal precedent. Finally, I will voice my opinion on what I believe the Supreme Court should rule and why. (218)
Former President Donald Trump is currently appealing to the United States Supreme Court a decision by the Colorado Supreme Court that sought to disqualify him from appearing on the Republican Primary ballot in Colorado. The plaintiffs in this case, an assortment of Colorado Republicans and Independents, successfully argued to the Colorado Supreme Court that the Colorado Secretary of State should be al-
lowed to remove Trump from the Colorado Republican primary ballot. They cited Section 3 of the Fourteenth Amendment, the Disqualification Clause, believing that Donald Trump engaged in insurrection against the United States. This, in theory, would disqualify him from holding office as stated in the language of the amendment. This legal challenge raises many complex questions under the Constitution about the right to vote for the candidate of an individual’s choice and the balance of power between state and federal government. At the heart of all of these, is the issue of whether the State of Colorado has the authority to disqualify anyone, let alone a candidate for President of the United States from holding office. As disqualifying Donald Trump from even running for office would disenfranchise millions of voters, there is considerable weight to whatever the Supreme Court ultimately decides. Because I believe that the language of the Disqualification Clause does not apply to the President and solely Congress has the authority to enforce the Disqualification Clause, I believe the Supreme Court should reverse the Colorado State Supreme Court’s decision and allow Donald Trump to remain on the 2024 ballot in both Colorado and nationally.
Trump v. Anderson is inherently complex because the competing arguments are textually based on one side and inference based on the other. The arguments against Trump’s disqualification tend to use the language of the Constitution. Whereas the arguments in support of Trump’s disqualification rely more on reasonable assumption. As the Disqualification Clause does not directly address the issue of Presidential disqualification, the arguments in support of Trump’s disqualification are feasible.
The first issue that arose while the case was still in the Colorado Court system was whether Section 3 applies to the Presidency, specifically Donald Trump. The Colorado Court system was split on this matter. The District Court found that Trump could not be removed from the Republican primary ballot be-
cause the Court was unsure if Donald Trump was an “Officer of the United States”. Thus they were unsure if Section 3 applied to the former President - though the District Court did believe Trump engaged in insurrection. On the contrary, the Colorado State Supreme Court found that Trump was an Officer of the United States and engaged in insurrection on January 6th. Citing Section 3, the Colorado State Supreme Court’s ruling gave the Colorado Secretary of State the authority to remove Trump from the Colorado Republican primary ballot. Donald Trump has since appealed the State Supreme Court’s ruling to the United States Supreme Court in a case now known as Trump v. Anderson (US 23-719).
The arguments for disqualification in Trump v. Anderson come from Section 3 of the 14th Amendment. The language of Section 3 is the starting point for analysis in this matter. Section 3 states:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (Amend. XIV Section 3).
The language of the text raises several questions pertaining to the specific wording used in Section 3. Primarily, the Anderson Litigants are claiming that Donald Trump, as President, was an Officer of the United States when he engaged in insurrection on January 6th. They believe that the Presidency falls under the umbrella term of “Officer of the United States”. While it may be easy to equivocate the President and an Officer of the United States, several textual arguments counter this claim.
Article II of the Constitution outlines the powers of the President. Within Article II, specifically Section 2 Clause 2 - commonly known as the Appointments Clause, the President is given the power to appoint individuals to certain government positions. The text of this clause states:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Within this clause, the President is given the power to appoint, amongst other things, Officers of the United States. The position “Officers of the United States” is explicitly listed in the text as a group of positions that the President is given the power to appoint. It would be unreasonable to assume that the Framers would give the President the ability to appoint themself as other articles within the Constitution speak to the election of the president. Therefore, the Appointments Clause creates a division between the Executive branch and an Officer of the United States and gives clear textual evidence that the President should not be considered one of these “Officers”.
There is more textual basis for believing that the President is not an “Officer of the United States”. Within Article II Section 4, the Impeachments Clause, it is stated that “the President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The Constitution creates a distinction between the President and “Officers of the United States” by listing them separately in the text - deliberately written that way by the Framers. It is explicitly written that the President and any “Officer” are two separate entities according to the text. It would be illogical for the courts to conflate these different positions when they are written as two different things.
While the Colorado State Supreme Court found that Donald Trump as President was an Officer of the United States, both the Appointments and Impeachment Clauses give clear textual evidence that the President is not included in this ambiguous phrase. This draws into question whether Trump could be disqualified under Section 3 - which is precisely the reason that the Colorado Trial Court gave for not agreeing with the Anderson litigants. Given that the core principle of democracy is the ability for constituents to elect their leaders, disenfranchising voters through disqualification should not occur unless the language of the Constitution specifically includes a position in the Disqualification Clause - which Section 3 does not. There could be an infinite many reasons why the Framers of Article 3 used the language they did when drafting this amendment - a topic that deserves its own essay. But the language of the Fourteenth Amendment as it is written does not include the President, and there is no textual evidence to believe that the Presidency should be grouped with the phrase “Office of the United States”. This is further reason that the United States Supreme Court should overturn the Colorado State Supreme Court’s decision and al-
low Donald Trump to remain on the primary ballot.
Even if people disagree with this conclusion, as the Colorado Supreme Court already has, the more complex issue is whether Colorado, or any state for that matter, can bar a candidate from holding office. This is due to the language of Section 5 of the Fourteenth Amendment. It states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Section 5 is the shortest provision in the 14th Amendment but unquestionably the most important. While Section 3 creates the right to disqualify an individual from holding office, Section 5 addresses how Section 3, and the rest of the 14th Amendment, must be executed. The language in Section 5 states Congress has governance over the 14th Amendment and the ability to enforce such “by appropriate legislation”. Section 3 also gives Congress the right to remove the disqualification clause by a two-thirds vote, which reinforces the idea that the Disqualification Clause is within Congress’s jurisdiction, not the Supreme Court, and certainly not individual states to execute. Both Sections 3 and 5 say nothing about a state’s ability to disqualify a candidate from running for election or holding office. They only say that the power to enforce Section 3, and the 14th Amendment as a whole, rests with Congress. Chaos would ensue if states had the power to disqualify Presidential candidates at their discretion. Therefore it is most reasonable to leave the issue of disqualification to Congress, as written in Section 5. Letting Congress be solely responsible for enforcing the 14th Amendment would follow the procedures outlined in the 14th Amendment and create national uniformity in any matter of disqualification.
To strengthen the argument that it is up to Congress to enforce Section 3, I looked at legal precedent. There are only a few applications of Section 3 in American legal history as instances of insurrection are quite rare. Fortunately, there is one relevant case to the matter currently before the Supreme Court. The case, commonly known as Griffin’s Case, was an 1869 matter decided in the Virginia Circuit Court of Appeals by Justice Salmon P. Chase. Griffin’s Case did not deal with the election of a President but rather the validity of a judge holding office. Caesar Griffin claimed that he had been unjustly convicted and sentenced by a Judge who had supported the Confederacy during the Civil War. Griffin argued that because the Judge had “aided in the insurrection”, the Judge could not hold an office and therefore lacked the authority to sentence Griffin because of Section 3.
The Appellate Court disagreed with Caesar Griffin and said that the Fourteenth Amendment was not ‘self-executing’ meaning that an individual was not automatically disqualified from holding office even if they engaged in insurrection. This means that without Congressional action to remove the judge, Griffin’s Judge validly remained in office. As far as I know, Congress never
passed legislation to change the Griffin ruling, which suggests to me that the decision is still a valid precedent that can be applied to Trump v. Anderson. As such, even if Donald Trump was an insurrectionist, Congress has not passed legislation disqualifying Trump from the Colorado Republican primary ballot as necessitated by Section 5. Therefore, Trump should be allowed to remain on the primary ballot until Congress passes legislation barring him from running for or holding elected office. From the provisions in Sections 3 and 5 of the 14th Amendment in tandem with the precedent set by Griffin’s Case, it is clear that no court, at either the state or Federal level, should have the power to disqualify a candidate from either running for or holding office. The power of disqualification under Section 3 is solely left to Congress.
I admit that this may seem a strange result because the Framers of the Fourteenth Amendment did not want insurrectionists holding high offices where they would possess authority and cause similar disputes to those that led to the Civil War. But the Amendment must be read in total, including the language in Section 5 states it is for Congress to enforce the provisions of the 14th Amendment, not state courts.
Following January 6th, 2021, many legal scholars questioned if the Disqualification Clause would be used to bar Donald Trump from holding office due to the Capitol riots. As appealing as that outcome is, there is not enough textual evidence to consider the President to be an Officer of the United States. Further, through the text of the Constitution and Griffin’s case as precedent, it is clear that Congress has sole power over the Disqualification Clause. States cannot remove a candidate for President from their ballot without Congressional legislation being written to disqualify them. Should Congress pass legislation enabling Trump’s disqualification, my answer would be the complete opposite. Until that day arrives, the right answer, in my opinion, is for the Supreme Court to overturn the Colorado Supreme Court’s ruling and allow Donald Trump to remain on the Colorado ballot and those of any other state reviewing this same issue.
REFERENCES:
Griffin’s Case (1869)
U.S. Constitution Amded. 14. Sections 3 and 5
U.S. Constitution, Section II, Clauses 2 and 4
Representation in Elite Institutions
Isaac Ulloa Antonio
In a recent piece published by the Tufts Daily regarding the creation of the Tufts Undergraduate Law Review (TULR), the founders described TULR as a space that challenges the “hierarchal and exclusive” culture too common in law and its affiliates. The American Bar Association highlights this exclusivity in law, with only 5% of lawyers identifying as African American, 5% identifying as Hispanic, and 2% identifying as Asian American. Regarding our judges, the American Bar Association also reported of the 1,409 federal judges, only 59 are Black women. Despite improvements in recent years, 78% of federal judges are white and 70% are male.
As minorities continue to redefine and enter elite institutions, many are beginning to question the emphasis on race-based statistics; with time, the United States will enter a space where races are all properly represented in law firms, the courts, and other institutions in our country. Programs that intend to remedy racial disparities are unnecessary, if not outright harmful to the goal at hand. These arguments attempt to espouse an ideal of “color blindness,” wherein society no longer judges or categorizes people based on the color of their skin. Instead, society judges people on their character and their actions. As we move further away from the Civil Rights Era, the described sentiments seem to be gaining traction within many parts of U.S. society. One institution where these ideals have gained momentum is the current Supreme Court, most evidently depicted in the Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.
In 2023, the Supreme Court of the United States struck down affirmative action policies and deemed these policies a violation of the Equal Protection Clause. The vote was along ideological lines, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining Chief Justice John Roberts’ majority opinion; Justice Elena Kagan and Ketanji Brown Jackson joined Justice Sonia Sotomayor’s dissenting opinion. This piece is not intended to break apart every section of the majority opinion or the dissenting opinions; instead, it seeks to highlight Justice Ketanji Brown Jackson’s dissenting opinion. More specifically, this piece will examine Justice Brown Jackson’s hypothetical in the case. For those who have not read the Justice’s hypothetical, Brown Jackson begins as quoted:
Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789.
Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?
Justice Brown Jackson’s dissent uses two hypothetical students as her basis: one is white and a legacy student, with his family having attended the University of North Carolina for multiple generations. Born and raised in the area, this student wishes to continue his family’s legacy by attending the university. The other student is Black and not a legacy student, though his family has roots in the state, as they were enslaved in the area until the Civil War. Born and raised in the area, this student wishes to continue his family’s legacy by attending the university.
In the eyes of the Court’s majority, James’ legacy as a descendant of enslaved people in the state of North Carolina cannot be used in his admission to UNC, as his race does not demonstrate his “character in a way that would have a concrete effect on the university.” James, though, cannot hide his race in his life. As a descendant of enslaved people, his family was not allowed to attend the university before James. His identity was and continues to be racialized. At the same time, though, John’s legacy can be used in his admission to UNC because, while also a product of his race, John’s family history is not racialized like James’. John can hide race from his story, because, as Justice Brown Jackson puts it, “our country has never been colorblind.”
Justice Brown Jackson points to a continued history of racial prejudice and discrimination, even after the abolition of slavery:
Most likely, seven generations ago, when John’s family was building its knowledge base and wealth potential on the university’s campus, James’s family was enslaved and laboring in North Carolina’s fields. Six generations ago, the North Carolina “Redeemers” aimed to nullify the results of the Civil War through terror and violence, marauding in hopes of excluding all who looked like James from equal citizenship. Five generations ago, the North Carolina Red Shirts finished the job. Four (and three) generations ago, Jim Crow was so entrenched in the state of North Carolina that UNC “enforced its own Jim Crow regulations.” Two generations ago, North Carolina’s Governor still railed against “‘integration for integration’s sake’” — and UNC Black enrollment was minus-
cule. So, at bare minimum, one generation ago, James’s family was six generations behind because of their race, making John’s six generations ahead.
The United States continues to deal with the ramifications of slavery and racist ideologies present since the founding of our nation. Representation in our elite institutions is crucial to successfully eradicate these prejudices (albeit, not the end all). Affirmative action, as previous courts have determined and reiterated in Justice Sotomayor’s dissent, has been a force for “equaliz[ing] educational opportunities.”
It is important to highlight that affirmative action programs are not intended to punish one individual over another due to the color of their skin. In the majority’s opinion, Chief Justice John Roberts argues the usage of race in college admission amounts to punishing one student over another due to the zero-sum nature of admissions. While college admissions are a zero-sum game, his logic assumes race is the only characteristic being weighed by a university at the time of admissions. Justice Brown Jackson addresses this concern in her dissent:
It is hardly John’s fault that he is the seventh generation to graduate from UNC. UNC should permit him to honor that legacy. Neither, however, was it James’s (or his family’s) fault that he
would be the first. And UNC ought to be able to consider why. No two students are the same; even if two students had similar or equal GPAs, these students did not participate in the same extracurriculars, have similar home lives, or expressed interest in the same opportunities or programs at a particular institution. There are a plethora of factors — seemingly a surprise to the majority — also considered by colleges when determining who they will admit. For some students, their race is a fundamental factor in their life and colleges deserve to be able to consider it. How are students admitted into college? (Via their skills, history, and passions and how these characteristics contribute to the institution they wish to attend.) Who determines what skills and passions are important regarding college admissions? These are the fundamental questions of Students for Fair Admissions v. Harvard. The United States, as described by Justice Brown Jackson, is a country where the color of one’s skin has set the terms and conditions of a person’s life and opportunities for the majority of its history. Therefore, race indeed continues to be a crucial factor, as the majority wishes, to learn about an applicant’s “character in a way that would have a concrete effect on the university.”
The Consequences of Overturning the Chevron Deference
Zayyan Abbas
In February 2020, the case of Loper Bright v. Raimondo was brought before the U.S. District Court for the District of Columbia (DDC). Loper Bright, a family-owned fishing company, filed a complaint against the rules of the National Marine Fisheries Service (NMFS) in their enforcement of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (shortened to Magnuson-Stevens Act or MSA). Beginning in 2013, the implementation rules of the NMFS were amended by the New England Council (NEC), in response to the falling budget of the NMFS, such that the fishing industry would pay for the possibly required federal monitors on fishing vessels as specified in the MSA. Loper Bright argued that the MSA did not authorize the NMFS to require the industry to fund these monitors.
The complaint is essentially that the NMFS should not act in a way that has not been defined in the MSA. In cases such as this, the precedent that is usually followed is from the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron v. NRDC). Here, the Natural Resources Defense
Council, an environmental advocacy group, contended that the Environmental Protection Agency’s (EPA) new rules, which would allow for entire plants to be considered as ‘stationary sources’ of emission, contravene the purpose of the Clean Air Act Amendments of 1977. Although initially, the U.S. Court of Appeals for the District of Columbia Circuit ruled against these EPA regulations. However, Chevron Corporation, affected by this decision, successfully appealed to the Supreme Court. The Supreme Court ruled unanimously 6–0 in favor of the EPA. In the opinion, delivered by Justice Stevens, a new doctrine was established, later nicknamed the ‘Chevron Deference’.
The Chevron Deference is to be used when, in the enforcement of a statute by an agency, the statute is silent or ambiguous on a particular issue. Here, the Court defers authority of the interpretation of these ambiguities to an agency, in the case that the following conditions are met: (1) the agency is in charge of administering the statute and (2) the interpretation of the statute by the agency is reasonable. This doctrine has since been limited in scope to only consisting of interpretations that were built out
of formal proceedings with the force of law, such as adjudications or notice-and-comment rule-making. Despite this narrowing, Chevron v. NRDC has been widely influential and is one of the most cited cases in U.S. history that has protected the ability of federal agencies to implement policies with a certain degree of freedom. This decision was borne out of an understanding of the duties of the court, as written by Justice Stevens in his opinion, “[If] the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, [Rather], the question for the court is whether the agency’s answer is based on a permissible construction of the statute”. Simply put, the courts cannot decide whether the implementation of a certain statute was a ‘good’ idea, but instead can determine whether it was a reasonable course of action, given the statute.
With this context in mind, we can fully grasp the importance of the pending Supreme Court decision in the case of Loper Bright v. Raimondo. In the petition to appeal this case to the Supreme Court, they argue that the precedent set by Chevron must be overturned. Their petition includes the following arguments: (a) Chevron is not entitled to being able to create a precedent, (b) Chevron is egregiously wrong, (c) Chevron has caused significant negative jurisprudential and real-world consequences, and (d) Overruling Chevron would not upset reliance interests.
Although it is long-held that Chevron enjoys statutory stare decisis or the ability for the case to be used as the precedent for the interpretation of the statute, the petitioners argue that this was an incorrect decision of the courts due to Chevron’s lack of citation of the most relevant statute in regards to the interpretation of statutes — §706 of the APA. This statute states that “[…] the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action”. Due to the priority given to enacting statutes passed by Congress, this would mean that if Congress were to decide to re-enact this statute it would effectively overrule any decision based upon Chevron. Hence, the petitioners argue that any ability for the case to enjoy stare decisis is inherently weak, as there is a possibility that the decision can be reversed.
In their argument for the incorrectness of Chevron, they argue that the decision is inconsistent with Articles I and III of the Constitution and the Due Process Clause. The inconsistency with Articles I and III is, essentially, the issue caused by the Separation of Powers. The petitioner argues that by deferring the interpretation of a statute to agencies, the courts are ignoring their constitutionally demanded duties to interpret statutes as detailed in Article III. They also argue that the precedent set by Chevron, wherein agencies under the executive branch have strong freedom to interpret many details of a statute, “short of a major question”, they are greatly shifting power from the legislative to the executive branch, which is inconsistent with Article I. Finally, the petitioners argue that the Chevron decision is
inconsistent with the ‘Due Process Clause’, or broadly the right for citizens to receive a fair trial. Their argument claims that the precedent set by Chevron creates a systemic bias for federal judges to rule in favor of federal agencies, which precludes citizens from receiving a fair trial.
The petitioners go on to detail the jurisprudential and practical problems posed by the doctrine. The jurisprudential problems posed are largely borne out of the ironic ambiguity in determining how to decide what amount of ambiguity in a statute is enough to warrant deference. Due to the difficulty in deciding this, the usage of Chevron has significantly dropped, thus the petitioners argue that it is most useful to simply overturn it instead of dealing with a doctrine that becomes increasingly complex. They go on to add that by allowing agencies free rein over the interpretation of statutes, they create a situation wherein agencies are able to enforce regulations, which can be political rather than technical, to the harm of citizens.
The final argument states that the overturning of Chevron will not have any drastic effects on previously decided cases. This is largely due to the aforementioned politicism that can be present within Chevron-based decisions, making it such that the decision made by the court can be overturned by either the government or later courts. This, coupled with the instability of Chevron as a doctrine, as outlined in argument (a), in mind, the petitioners argue that the overturning of Chevron would not have a drastic impact on cases decided by the doctrine as these cases could be overturned already.
In their argumentation, the government claimed that the reason that Chevron enjoys the stare decisis it does is because, although it can be at any moment, it has yet to be overturned by Congress. Here, we are presented with a legal paradox, as although on one hand the decision can be seen as weak due to the possibility of it being overturned by Congress, we are faced with the fact that Congress has not done so for many decades. In support of their conclusion, the government turns to the case of the Auer deference, a similar form of deference that demands courts must defer to an agency’s interpretation of their own regulations unless the interpretation is plainly incorrect. This doctrine is also another that can be overturned by Congress enacting new statutes, however, was recently defended by the Supreme Court in Kisor v. Wilkies. The petitioners argue that Kisor addressed different questions and did not consider stare decisis that strongly, and has less of an impact than Chevron. This argumentation heavily downplays the importance of stare decisis factors in Kisor however, as the deciding vote in the 5–4 decision was cast on grounds of stare decisis by Chief Justice Roberts. In regards to the question of the impact that Chevron has, the magnitude of the impact alone does not justify either way but rather emphasizes the importance of deciding the future of this doctrine.
In regards to the question of the separation of powers posed by this doctrine, the government points to the long-standing
tradition of the courts to allow the executive branch’s departments to construct their implementations with their reasonable interpretations of statutes. This question is not something that has gone unaddressed and was a key factor in the decision-making of Chevron, where the Supreme Court cited many cases as precedents for this pattern. This practice is historical, going back to the early days of the Republic when the executive’s actions were reviewable only by mandamus — a court order issued if a government official is acting plainly beyond the scope of their authority — which allowed the executive to have relatively free rein in how they go about their actions. In addition to this precedent, I would argue that the petitioner’s claim that the doctrine takes power away from the legislative branches is not a problem inherent to the doctrine itself but rather a problem that should be attributed to the difficulty of applying the doctrine.
The petitioners claim that a problem of the doctrine is that it treats all ambiguity as delegation, allowing agencies to interpret the law in a way that may not be according to congressional intent. I do not believe that this problem would be solved by the overturning of Chevron however, if the agencies were to instead rely on the courts to determine this it would instead create a new problem where courts would be forced to fill in ambiguity which may be decided on matters of opinion instead of law — which is squarely outside of their duties. The other side of overturning Chevron would be a Congress that is forced to hash out the minute details of every law. This is hailed as a great benefit of overturning Chevron by the petitioners who argue that, against the backdrop of Chevron, the laws that are passed by Congress are intentionally ambiguous, not to delegate responsibility to the executive but simply to avoid further debate. If we were to set this precedent, however, the question of what degree of ambiguity can be allowed remains but is passed onto Congress. This decision would either threaten constant gridlock in Congress, having to consider every detail that could be controversial enough to be brought to court, and possibly thus force Congress to make considerations best suited for the executive branch. Additionally, claims about the failure of Due Process imply that the act of deferral to the executive branch is an act of systemic bias, instead of a routine constitutional duty of the courts and is a practice that is present in many other doctrines. The government also contends that the real-world benefits of Chevron compound the importance of not overturning it. The petitioners contest with this view, arguing that agencies misuse their discretionary power to interpret statutes, to the detriment of citizens. This is exemplified in the case of Loper Bright v. Raimondo, where a small family-owned fishing company was compelled to incur costs for federal monitoring, underscoring the petitioners’ concerns. Although I would not hazard a guess on either side of this, I would argue that the impossibility of deciding this argument can be found in the evolution of Chevron itself. Initially, the decision was perceived as a setback for climate activists who hoped the courts would overturn a ruling
favoring industry. However, it is now being challenged because it is viewed as a decision that benefits the environment but adversely affects the industry. The perceived consequences posed by Chevron are not due to any harm it necessarily causes but as a disagreement with the tools used by federal agencies in carrying out the political ends of the current executive branch. The negative or positive impact someone would claim it to have would be fundamentally tied to how they relate politically to the current administration, instead of being based on an objective truth.
The petitioner’s claim around the ease by which the Court would be able to overturn Chevron is largely based on the ability for decisions based on it to be overturned by other means, which overlooks the government’s broader argument. The government contends that overturning Chevron would enable numerous private parties to relitigate cases that have already been decided. To take the example of Chevron, it would allow the environmentalists to disagree again with the decision of the EPA, and perhaps reverse the decision in their favor. Although the petitioners claim that this relitigation is unlikely as the interpretation should be sufficiently plausible under Chevron, this alone does not appear adequately justified to prevent this as it would change the authority on the interpretation to be the courts rather than agencies, providing a pathway to change the policies of many agencies.
With this analysis of the arguments of the case in mind, it is important to consider the larger context of Loper Bright v. Raimondo. It is not a case of small-scale fisheries struggling with bills imposed by the federal government, but rather a vehicle by which a strong tool of executive power can be taken away. Legal commentators note that the decision is likely to be split among political lines, with the current 6–3 conservative majority of the Supreme Court being likely to rule in favor of overturning Chevron. Not only would this immediately have an impact on the abilities of the lower courts, who often use the precedent of Chevron to manage a flood of litigation against government agencies, but it is also going to create larger problems for the government to be able to robustly deal with problems that should be of national priority. One of the most illuminating situations to consider is what it would forecast for the national response to the climate crisis.
Environmental policy in the U.S. is often incredibly varied by state lines, due to the difficulty of the passing of national environmental policy in the first place. Environmental policy has become a political hot-button issue in recent years, however, it is an issue that is dependent on a large amount of scientific expertise and one which we do not have much time to address. Once a policy is passed, it is incumbent on agencies such as the EPA or NMFS to carry out these policies. These agencies tackle critically important and complex problems on continually shrinking budgets, with their effectiveness often hinging on the state’s willingness to pursue these goals. This approach to environmental policy is unsustainable as we face an escalating climate crisis.
With each passing second, as irresponsible decisions are made, we jeopardize the well-being of future generations. Historically, the capacity of the U.S. government to implement effective environmental policy has depended on the commitment of the
prevailing administration. In a time as critical as this, for an issue of immense importance, we cannot risk clipping the wings of some of the most vital tools at our disposal.
Arizona Abortion Ban Reveals Dangerous Implications of the Dobbs Ruling
Linda Huang & Ananya Randeira
On April 9, 2024, the Arizona Supreme Court enacted a decision to ban abortion in almost all cases unless the life of the mother is at risk. The new ruling gives no exception to rape and incest, and orders a sentence of two to five years for anyone convicted of performing an abortion. This witnesses a return to the 1864 Civil War era abortion ban, which ordered prosecution for “a person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life.”
The Arizona case was enabled by the Dobbs v. Jackson Women’s Health Organization ruling by the Supreme Court in June of 2022, which reversed almost 50 years of precedent and eliminated the constitutional right to abortion. In its ruling, Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade, arguing that the Fourteenth Amendment’s guarantee of liberty does not encompass an individual’s right to abortion.
Arizona isnot the only state where doubts about the legitimacy of abortion arise. Mississippi contended that its law, banning most abortions after 15 weeks, aimed to protect fetal life and maternal health, representing a compelling state interest. Advocates for the Mississippi law urged the Supreme Court to reconsider previous decisions like Roe v. Wade and Planned Parenthood v. Casey, asserting that these rulings incorrectly recognized a constitutional right to abortion. On the other side, opponents emphasize women’s autonomy and health, asserting that the state’s restrictions violate constitutional rights to privacy and liberty. They also raised concerns about the practical consequences of limiting abortion access, particularly for marginalized groups.
The arguments of this case centered on the balance between state interests and individual freedoms guaranteed by the Fourteenth Amendment. The Fourteenth Amendment to the United States
Constitution is a crucial element in civil rights and constitutional law. Justice Alito, writing for the majority opinion, states that the Constitution “makes no reference to abortion.” The majority then proceeds to utilize the Glucksberg test from a 1997 Supreme Court decision in Washington v. Glucksberg, to determine whether the Fourteenth Amendment’s textual guarantee of liberty includes the right to abortion. The Glucksberg test considers whether an asserted right, in this case the right to abortion, is deeply rooted in our nation’s history and tradition and is fundamental to our concept of ordered liberty.
The majority and concurring opinions reach its sweeping conclusion without any mention or consideration of the harmful impact it will have on the health, lives, and future of pregnant people. Instead, the Court acknowledges that abortion is an inherently moral issue, and views their decision as returning the “authority to the people and their elected officials.’’ Along with the States’ rights argument and the Glucksberg test, the Supreme Court utilized an originalist approach to viewing the Constitution, arguing that abortion was not an intended right when the founding fathers were writing the Fourteenth Amendment.
The dissenting opinion took a different approach, arguing that it is illogical to view this issue from the lens of a time period when women were not even allowed to vote or partake in decision-making. Additionally, the dissenting opinion does not view abortion rights as a state rights issue, but as an issue about maintaining fundamental rights given to women, stating that “withdrawing a woman’s right to choose whether to continue a pregnancy does not mean that no choice is being made. It means that a majority of today’s Court has wrenched this choice from women and given it to the States.”
The Dobbs ruling not only represents an increased infringement on women’s autonomy and their right to abortion but also signaled a green light for states to take greater control over women’s reproductive rights, setting off a domino effect. After
Dobbs, Florida, and now Arizona, have introduced harsh restrictions on abortion rights, symbolizing the drastic effect the overturning of Roe v. Wade will have on future legislation about women’s reproductive rights. The final verdict made on April 9 marked the culmination of a series of motions for and appeals against the court’s initial reversal of the request to reinstate the 1864 abortion ban.
Arizona’s State Governor Katie Hobbs reiterated her commitment to the Executive Order she placed last June, which gave all the power for the state to enforce abortion laws to the state attorney council, in turn stripping the ability for county attorneys to prosecute abortion.
“It is outrageous that we would even dignify the consideration of this type of ban,” said Arizona’s Democratic State Sen. Eva Burch, following the newest Supreme Court decision in Arizona. Dobbs implies a greater scale reversal from the progress made thus far in pushing for women’s rights by denying women’s consideration in the formation of the fundamental right to freedom and liberty. The Fourteenth Amendment’s references to liberty and freedom were framed against the backdrop of slavery, where enslaved individuals had no control over their bodies. Enslaved women were often subjected to rape and forced procreation by plantation owners, denying them their reproductive rights and
bodily autonomy. As such, the rights to bear children and establish families were “widely understood inherent in freedom and critical to human dignity and flourishing” at that time and underscored by the Constitution to be protected and not infringed upon by the state. Hence, although the majority opinion in Dobbs argued that the Constitution makes no explicit reference to abortion, and that the norm that abortion was prohibited in three-quarters of the states when the Fourteenth Amendment was first established, their line of reasoning falls short when we recognize the relevant historical background, which gave rise to the protection of bodily autonomy under the broader notion of liberty.
In the aftermath of the Dobbs decision, it becomes incredibly crucial to acknowledge the heightened reproductive health risks women may face and the erosion of their reproductive freedom. This underscores the urgent need for the recognition of women’s bold autonomy as a fundamental constitutional right under the Fourteenth Amendment. Rather than framing abortion rights solely within the context of state authority, it is imperative to reframe it as an issue of women’s rights. Doing so emphasizes the significance of safeguarding women’s autonomy over their own bodies and ensures that their reproductive choices are protected from undue interference.
The Right to Choose: Rethinking Autonomy in End-of-Life Care
James McGrath
Imagine you are at the end of your life. A life full of happy memories, love, laughter, challenges overcome, and lessons learned. In old age, your body begins to feel like a prison, where each breath draws a pain sharper than the last. Now, imagine you have the power to say “enough” — not out of despair, but from a profound understanding of one’s right to end life with dignity. This is physician-assisted suicide (PAS): a choice that embodies the most personal freedom imaginable. Yet, in the United States, this choice remains in controversy, tangled in legal and ethical debates that overshadow the simple yet proud desire to control one’s end of life.
To best understand the ethics and practicality of PAS and euthanasia, it’s easiest to look at the states where these practices are already legal. Oregon’s Death with Dignity Act (DWDA) serves as a pivotal example, illustrating a framework that balances individual autonomy with comprehensive safeguards. Under this framework, PAS is limited to individuals with terminal illnesses, defined as diseases expected to lead to death within six months,
and requires voluntary and informed consent, free from coercion. Additionally, Oregon’s comprehensive assessment process requires multiple independent medical evaluations to confirm a terminal diagnosis and decision-making capacity, alongside mandatory psychological evaluations. Such evaluations are crucial in safeguarding individuals’ rights to make informed choices about their own lives. Oregon’s approach can work as a model of a dignified and ethical approach to end-of-life decisions, ensuring autonomy while imposing strict parameters.
While DWDA has been a pioneering statute for PAS, it is not without shortcomings. One significant concern is the potential for misinterpretation or the misapplication of the criteria for eligibility, especially around the definition of “terminal illness.”
The DWDA’s reliance on a prognosis of six months or less to live as a sole determinant can be seen as overly rigid, potentially excluding individuals who suffer unbearably but do not meet this strict timeline. Furthermore, the Act’s provision for psychological evaluation, while present, may not be enough to
fully ascertain a patient’s mental health state and decision-making capacity. The critique extends to the safeguards for the disabled community, which although implicitly acknowledged in the DWDA, lacks explicit protections and guidelines, leaving room for misinterpretation or unintended discrimination. This critique also underscores the necessity of a new proposal with a more nuanced approach: one that incorporates humanistic eligibility criteria, comprehensive psychological assessments, and unequivocal protections for the disabled, ensuring the practice of PAS is both compassionate and judiciously administered. In order to fix where the DWDA falls short, ethical boundaries that clearly respect the dignity and rights of individuals, especially those vulnerable groups such as the disabled community, need to be drawn. “Euthanasia” should be better defined as a deliberate intervention undertaken to end a life, to relieve unmanageable suffering, where such intervention is requested by a mentally competent patient. In cases where the patient does not have power of attorney, it would be best to stipulate that the attorney adheres to rigorous legal and ethical guidelines. These guidelines, similar to those of a patient, should include medical and psychological assessment to ensure the patient’s wishes are communicated within their decisions. Furthermore, the phrase “terminal illness” should be defined with more precision as a condition that is medically confirmed to be incurably progressive, irreversible, and will result in a patient’s death in a shortterm time frame. By these definitions, a better national proposal could firmly uphold the principle of being non-discriminatory, ensuring that disability alone, in the absence of a terminal illness as defined, is never a criterion for eligibility for euthanasia. This approach would seek to protect the rights and dignity of the disabled, ensuring that euthanasia is a choice made freely and without influence.
While expanding on the previous framework is important to shape a national proposal, one must also take into consideration the relationship between the 1997 Supreme Court case Washington v. Glucksberg and the legality of euthanasia in the United States. The case failed to recognize the right to assisted death as a fundamental aspect of personal autonomy. This oversight voids the recognition of personal autonomy and the right to privacy, as recognized in other non-textual rights protected under the Due Process Clause in the Fourteenth Amendment. The right of a terminally ill person to end their life should be considered an essential aspect of autonomy, similar to the rights upheld in decisions concerning family autonomy, reproductive autonomy, and marital autonomy. The government’s general interest in protecting life and preventing suicide holds less weight when applied to a terminally ill patient. Being denied this essential right hurts a patient’s autonomy and personhood. Moreover, Washington v. Glucksberg creates the assumption that a fundamental right only exists if there is precedence, which squarely challenges the Due Process Clause. Previously, the Court has protected rights despite the absence of a tradition of
protection, as in cases like Griswold v. Connecticut legalizing the right to marital privacy and contraceptives, and Roe v. Wade protecting reproductive rights. The argument that physician-assisted suicide is so fundamental to autonomy that it should be considered a fundamental right is compelling, especially given its importance to personal privacy rights as outlined in the Due Process Clause.
As with Roe v. Wade, it is important to recognize that if a national policy is created that understands assisted suicide as a fundamental right, it should not automatically make state law that prohibits PAS unconstitutional. However, such laws should only be permitted if they survive strict scrutiny, a standard of judicial review that demands the government to justify its law by proving a compelling interest. The level of scrutiny is crucial in determining the consistency of any law. In the context of assisted dying, the government’s and state’s interests, such as preserving life and preventing suicide, should be examined against the backdrop of terminally ill patients, not those of the disabled groups. This way, the state’s compelling interest in preserving life is nullified when applied to terminally ill patients, as their prolonging of life often means only a few more days, weeks, or months plagued with suffering. To better create a policy framework that withstands constitutional challenges, states should articulate their interest with clear, evidence-based reasons. This should involve an understanding of the unique circumstances of the terminally ill and recognizing that there are policies in place to protect vulnerable populations. Additionally, a framework should be created so states must ensure that the law is not more restrictive than necessary to achieve its purpose. This is important as when non-textual rights are determined by states they can be overly harsh, as with the ruling of Dobbs v. Jackson Women’s Health Organization which left states unprepared to deal with life-threatening conditions that need abortions. By adopting a policy framework that balances the individual’s right to die, states can make laws that respect the dignity of terminally ill patients while ensuring that the practice of assisted dying remains ethical, safe, and regulated.
As the United States continues to navigate the complex ethical landscape of euthanasia and physician-assisted suicide, the future seems to be leaning toward greater acceptance and legal recognition of these practices. The experiences of states like Oregon serve as precursors to a future where autonomy and dignity are respected in end-of-life decisions. The legal landscape, while still evolving, suggests that there might be a gradual alignment with these principles, especially considering the parallels drawn with other civil rights movements. By advocating for a framework that legalizes PAS for terminally ill individuals, our nation can reflect a deep understanding of autonomy, compassion, and dignity in the societal responsibility of healthcare and human rights.
