Constitutional Law Commons^™

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …

'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …

The "Rational Federalist": Synthesizing Necessity And Propriety In The Sweeping Clause, Shane Magnetti

St. John's Law Review

(Excerpt)

This Note will argue that flexibility as to what constitutes a “necessary” law combined with a rigid standard for what makes a law “proper” enables Congress to execute its enumerated powers without overreaching. Part I outlines differing scholarly theories as to the legal origins of the Necessary and Proper Clause. Sections A, B, and C outline the theories that the Clause stems from principles of agency law, administrative law, and corporate law, respectively. Section D examines the implied powers theory of the Clause’s genesis. Next, Part II examines the Supreme Court’s early Necessary and Proper Clause jurisprudence—namely McCulloch v. …

Expanding Third-Party Standing In Custody Actions: How The Opioid Crisis Has Impacted Lgbtq Parental Rights In Pennsylvania, Jill C. Gorman

Dickinson Law Review (2017-Present)

Declared a public health emergency by the federal government, the opioid crisis often places children in foster care when parents fatally succumb to their addictions. To unburden the foster care system and to accommodate family members who want to care for these children, Pennsylvania enacted Act No. 21 on July 3, 2018, to expand custody standing to include certain third parties. However, because the legislature has not expanded the legal definition of “parent,” Act No. 21 poses a threat to the legal rights of nonbiological LGBTQ parents.

This Comment begins by explaining how the opioid crisis motivated the Pennsylvania legislature …

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

An Instrument At The Forefront Of Social Change: The Legacy Of Joaquin G. Ávila, Steven W. Bender

Seattle Journal for Social Justice

No abstract provided.

The Shaw Claim: The Rise And Fall Of Colorblind Jurisprudence, Molly P. Matter

Seattle Journal for Social Justice

No abstract provided.

Equal Protection Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson

Brooklyn Journal of International Law

South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …

Legislative Design And The Controllable Costs Of Special Legislation, Evan C. Zoldan

Maryland Law Review

Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called “special legislation.” In previous work, I have argued that special legislation is constitutionally suspect. In this Article, I explore the normative consequences of special legislation, assessing both the costs it imposes and the benefits that it can provide. Drawing on constitutional theory, public choice theory, and the history of special legislation, I argue that the enactment of special legislation is costly when it reflects the corruption of the legislative process and leads to low-quality legislation, unjustifiably unequal …

The Need To Codify Roe V. Wade: A Case For National Abortion Legislation, Kathryn N. Peachman

Journal of Legislation

No abstract provided.

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

The Impact Of Prosecutorial Misconduct, Overreach, And Misuse Of Discretion On Gender Violence Victims, Leigh Goodmark

Dickinson Law Review (2017-Present)

Prosecutors are failing victims of gender violence as witnesses and when they become defendants in cases related to their own victimization. But it is questionable whether that behavior should be labeled misconduct. The vast majority of these behaviors range from misuses of discretion to things that some might consider best practices in handling gender violence cases. Nonetheless, prosecutors not only fail to use their discretion appropriately in gender violence cases, but they take affirmative action that does tremendous harm in the name of saving victims and protecting the public. The destructive interactions prosecutors have with victims of gender violence are …

The Fire Rises: Refining The Pennsylvania Fireworks Law So That Fewer People Get Burned, Sean P. Kraus

Dickinson Law Review (2017-Present)

On October 30, 2017, the General Assembly of Pennsylvania passed an act that repealed the state’s fireworks law, which had prohibited the sale of most fireworks to Pennsylvanian consumers for nearly 80 years. The law’s replacement generally permits Pennsylvanians over 18 years old to purchase, possess, and use “Consumer Fireworks.” Bottle rockets, firecrackers, Roman candles, and aerial shells are now available to amateur celebrants for holidays like Independence Day and New Year’s Eve. The law also regulates a category of larger “Display Fireworks,” sets standards for fireworks vendors, and introduces a 12-percent excise tax on fireworks sales that serves to …

Qualified Tenure: Presidential Removal Of The Fbi Director, Leah A. Hamlin J.D.

Ohio Northern University Law Review

In 1976, Congress passed a bill instituting a ten-year term for the FBI director, ostensibly to provide the head of the nation’s foremost law enforcement agency some measure of independence from political pressure that could improperly influence investigations. This note explores the impact of the tenured term on the president’s power to remove the director at will for a personal reason, a political reason, or no reason at all. Although the Supreme Court has never directly addressed the president’s power with respect to the FBI director, this note concludes that a statutory term alone does not restrict the president’s ability …

Expert Commentary On Sports Betting Post-Paspa From Becky Harris, Unlv Gaming Law Journal, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

UNLV Gaming Law Journal

Becky Harris, appointed by former Nevada Governor Brian Sandoval (2011-2019), served as the first female Chair of the Nevada Gaming Control Board from January 2018 to January 2019. Harris was the first Chair to propose regulations addressing workplace sexual harassment. Prior to serving as Chair, Harris served in the Nevada Legislature for the 2015 and 2017 legislative sessions.

Due Process, Private Nondelegation Doctrine, And The Regulation Of Sports Betting, Ryan M. Rodenberg

UNLV Gaming Law Journal

No abstract provided.

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the …

Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth

Arkansas Law Review

Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Burning A Hole In The Pocket Of Justice: Prop. 66'S Underfunded Attempt To Fix California's Death Penalty, Flavia Costea

Loyola of Los Angeles Law Review

California has struggled with the administrative and financial burdens of a flawed death penalty system for decades. In an effort to save the death penalty, the voters of California enacted Proposition 66, which promised to deliver a quicker and more cost-effective system. This Article focuses on the provision of Prop. 66 that expands the number of lawyers who can act as defense lawyers for inmates on death row. While this provision superficially seems to solve the shortage of defense attorneys willing to take on death penalty cases, without significant funding, the shortage of resources and pressure to speed up executions …

The Equal Rights Amendment Revisited, Bridget L. Murphy

Notre Dame Law Review

This Note proceeds in three Parts. Part One chronicles the history of the Equal Rights Amendment, from the original attempt at passage through the various reiterations thereafter. Part Two describes the legal background, including constitutional and legislative protection against discrimination on the basis of sex. Part Three of this Note then demonstrates that a faithful understanding of the existing constitutional and legislative protections reveals inherent weaknesses. Specifically, the original understanding of the Fourteenth Amendment did not contemplate protection from sex-based discrimination, and the word “sex” as a prohibited basis for discrimination in Title VII was added as a last-minute attempt …

A Safe Harbor In The Opioid Crisis: How The Federal Government Should Allow States To Legislate For Safe Injection Facilities In Light Of The Opioid Public Health Emergency, Amber A. Leary

Brooklyn Law Review

Opioid addiction is wreaking havoc across the United States, leading to a shocking number of overdoses and deaths. This epidemic has prompted the Trump Administration to declare opioid abuse a public health emergency and to call for increases in evidence-based treatment for those addicted to harmful opioids. To combat this epidemic, some cities have embraced one such evidence-based treatment plan—safe injection facilities—which are infirmaries where drug users can inject pre-obtained drugs under the supervision of nurses or overdose reversal specialists who can respond in real time to prevent overdose and death. Though safe injection facilities outside the United States have …

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the …