Constitutional Law Commons^™

Deference Vs. Evidence: An Exploration Of The Appropriate Application Of Putative Benefits To The Pike Balancing Test, Nathan Gniewek

Catholic University Law Review

The Supreme Court has long done battle with the intricacies and subtle implications of the interplay between state and federal power with regard to commerce. Although the Supreme Court crafted the Pike balancing test in 1970, that test has proven a jurisprudential headache due to a lack of a solid definition of the key phrase “putative benefits.”

Since the Supreme Court decided Pike v. Bruce Church, circuit courts have been unable to apply the term consistently when making use of the Pike test, generating a massive circuit split. This Comment teases out the differing treatment of states’ burden of …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Life Becoming Hazy: The Withdrawal Of The United States From The Paris Agreement And How The Youth Of America Are Challenging It, Anne Ustynoski

Catholic University Journal of Law and Technology

This Comment covers the ways in which each presidential administration has viewed the United States’ role and responsibilities in combating climate change. It discusses the ways in which the Clean Air Act has evolved and changed, as well as the ways in which the United States has been involved in environmental protection initiatives undertaken by the United Nations. The Comment also examines the ways in which individual states and groups have taken the initiative to combat climate change. Finally, this Comment discusses alternative approaches to combating climate change. For example, it focuses on how youths in America are arguing that …

Warrantless Searches Of Electronic Devices At U.S. Borders: Securing The Nation Or Violating Digital Liberty?, Ahad Khilji

Catholic University Journal of Law and Technology

The steady increase of U.S. citizens traveling with smart phones and other electronic devices has been met with the rise of searches and seizures by CBP officers at U.S borders. Although only less than 0.1% of all travelers may actually be subjected to a search while entering the United States, when comparing the statistics between a six month period in 2016 with the same period in 2017, electronic device searches have almost doubled from 8,383 to 14,993. Approximately one million travelers to the U.S. are inspected by the CBP every day. Out of this population, nearly 2,500 electronic devices are …

Against The Tiers Of Constitutional Scrutiny, J. Joel Alicea, John D. Ohlendorf

Scholarly Articles

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

The Constitutionality Of Appropriations Transfer Authority Under The Nondelegation Doctrine, Shelby Begany Telle

Catholic University Law Review

Article I, Section 9 of the U.S. Constitution provides the Legislative Branch with the power of the purse by granting it the exclusive authority to designate how federal dollars may be spent via appropriations laws. Congress often includes transfer authority, which provides Executive Branch recipients of appropriations the ability to shift funds from one budget account to another. Allowing an agency to transfer funds from one non-specific appropriation to another is arguably an unconstitutional abdication of the Legislative Branch’s exclusive power over the purse strings.

Appropriations transfers are unconstitutional under the nondelegation doctrine. Certain attempts to alleviate these nondelegation concerns …

Introduction: The Future Of Religious Liberty In America, Mark L. Rienzi

Catholic University Law Review

No abstract provided.

Smith, Scalia, And Originalism, Amul R. Thapar

Catholic University Law Review

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

Recognizing Anti-Zionism As An Attack On Jewish Identity, Alyza D. Lewin

Catholic University Law Review

This article answers the false assertion that Zionism is nothing more than a political movement that should be abandoned by Jewish students on American university campuses. Yearning for the Land of Israel and Jerusalem is, in fact, a deep spiritual integral part of Jewish identity. It dates back 3000 years to Biblical times. The connection of Jews to Zion is a key component of Jews' shared ancestry and ethnicity and has persisted throughout Jewish history. This dedication is demonstrated today by the custom that concludes a Jewish wedding ceremony and by the declaration ending the Passover Seder. Harassment of students …

A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided Through Comparisons With Historical Practices, Alex J. Luchenitser, Sarah R. Goetz

Catholic University Law Review

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now.

That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the …