Constitutional Law Commons^™

Lighting The Way Towards Liberty: The Right To Abortion After Obergefell And Whole Woman's Health, Erika Hanson

UC Law Constitutional Quarterly

The federal government has failed to fulfill the constitutional guarantee of equal rights for all. While this promise requires affirmative governmental action to ensure the protection of historically subordinated groups, policymakers persist in using the will of the majority to deny the dignity and fundamental rights of groups lacking political defenses. Luckily, recent developments in the doctrine of marriage equality now allow advocates and supportive lawmakers to remedy this injustice by forever removing the fundamental rights of subordinated groups from political debate. Policymakers must address the harm to subordinated groups posed by a tiered system of fundamental rights through constitutional …

The Fragile Victory For Unaccompanied Children's Due Process Rights After Flores V. Sessions, Elizabeth P. Lincoln

UC Law Constitutional Quarterly

In 2017, the Ninth Circuit Court of Appeals found that when the federal government detains an unaccompanied child, that child has the right to request legal review of his or her custody before an immigration judge. In Flores v. Sessions, the court reaffirmed the right, which had been present in the text of the laws governing the treatment of immigrant youth, but had been ignored by executive branch bodies. In its analysis, the court considered the relationship between a twenty-year-old settlement and two acts of Congress that govern the treatment of immigrant youth. The Flores decision affects the lives of …

The Harm In Hate Speech: A Critique Of The Empirical And Legal Bases Of Hate Speech Regulation, John T. Bennett

UC Law Constitutional Quarterly

Calls for hate speech censorship are largely premised upon the existence of certain social harms, including racial and gender inequalities, which are supposedly reinforced by hate speech. These inequalities, however, could be caused by a host of cultural and behavioral factors completely unrelated to hate speech, racial animus, discrimination, or any structural cause. The causal argument presented here has significant implications for the constitutionality of hate speech regulation. This article directly confronts the constitutional flaws, normative concerns, and empirical weaknesses inherent in a substantial body of hate speech scholarship. This article critically analyzes the legal and sociological premises of hate …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

UC Law Constitutional Quarterly

This article offers the first comprehensive history of the marriageequality litigation process leading from Windsor to Obergefell. It explores how four aspects of federal procedure and jurisdiction doctrine both enabled and frustrated marriage equality's advancement to the Supreme Court. First, we examine common misconceptions about how judgments, injunctions, and judicial precedent control real-world conduct and how litigation brings about legal reform. These misconceptions reached their nadir in Alabama in spring 2015. Guided by Chief Justice Roy Moore, Alabama officials properly declined to follow persuasive precedent, prompting unfortunate and inaccurate comparisons to George Wallace and Massive Resistance, and to Brown and …

Youthfulness Matters: A Call To Modernize Juvenile Waiver Statutes, Chelsea Ellen Heaney

UC Law Constitutional Quarterly

The fundamental values that underlie the juvenile justice system have developed and changed since its inception in 1899. A system that was once focused on rehabilitating and protecting troubled youth, has developed into a system focused on punishing and confining youth. A decade of increased juvenile crime rates in the United States from the mid-1980s to the mid- 1990s, led many states to change their policies regarding the treatment of juvenile delinquents. Specifically, between 1992 and 1994, forty-nine out of the fifty states broadened or enacted legislation making it easier for juveniles to be tried as adults. Automatic and mandatory …

Must Courts Respect Hidden Legislative Bargains, Brendan Selby

UC Law Constitutional Quarterly

The most complete and sophisticated justification for a strong form of textualism is grounded in the need to preserve legislative compromise. I call this justification the "Bargaining Argument." Its primary expositor is Professor John Manning, the leading academic textualist. The thrust of the Bargaining Argument is that, because express provisions of the Constitution evince an intent to give political minorities the right to insist upon compromise as the price of assent, courts should read the phrase "the judicial power" in Article III as prescribing an interpretive method that furthers this intent. While the general inference concerning minority rights is sound, …

The Right To Education For Unaccompanied Minors, Jeanette M. Acosta

UC Law Constitutional Quarterly

In response to the increase of unaccompanied minors seeking refuge in the United States in 2014, officials within federal, state, and local institutions readied themselves to receive and serve a greater number of child migrants in detention facilities, shelters, immigration courts, and public schools. While attention has been paid to the need for legal representation of unaccompanied minors and the need to end the inhumane detention of children, this Note reveals the state of educational opportunities and services provided for unaccompanied minors in detention facilities, shelters, and public schools. This Note looks to the role education plays in the lives …

Out Of The Shadows: Deferred Action For Childhood Arrivals, Deferred Action To Parents Of Americans And Lawful Permanent Residents, And Executive Prosecutorial Discretion In Immigration Law, Olga Y. Kuchins

UC Law Constitutional Quarterly

Currently, more than eleven million undocumented immigrants live and work in the United States unlawfully. The Administration's effort to bring undocumented immigrants out of the "shadows" under the deferred action programs, while constitutional, is merely a Band-Aid-a temporary solution to Congress' unsuccessful efforts to pass legislation that addresses the issue of undocumented immigrants head on. This Note contextualizes the Obama Administration's deferred action programs within the larger framework of prosecutorial discretion in immigration law.

Section I lays the foundation for the Administration's decision to implement Deferred Action for Childhood Arrivals ("DACA") by discussing some of the major developments in United …

The 2016 Election And The Future Of Constitutional Law: The Lessons Of 1968, Earl M. Maltz

UC Law Constitutional Quarterly

The upcoming presidential election of 2016 may very well become a pivotal moment in the evolution of American constitutional doctrine. Given Justice Scalia's untimely passing and the ages of a number of the sitting justices, the next President could easily have the opportunity to choose several new members of the Court. Moreover, because the Court is currently divided almost equally along ideological lines, even a single appointment could have the effect of turning the overall orientation of the Court's decisions sharply to either the right or the left.

To illustrate the effect that a single election can have on the …

Deciding With Dignity: The Terminally Ill Patient's Right To Information About The California End Of Life Option Act, Christine Sung

UC Law Constitutional Quarterly

For decades, states across the country have been entertaining concept of physician aid-in-dying, or more commonly known as Death with Dignity. In June 2016, California became the fifth state to legalize physician aid-in-dying, enabling qualified California citizens to have the option to choose a peaceful and autonomous death. However, many qualified patients may not be aware of this option unless informed. This is where physician-patient communication becomes vital to the patient's autonomy. This Note argues that terminally ill patients choosing what end of life option to take (hopsice, palliative care, etc.) should be informed about the California End of Life …

Out Of Thin Air: Evaluating The Legality Of The Clean Power Plan Under The Equal Sovereignty Principle, Sharma, Deepa

UC Law Constitutional Quarterly

The Clean Power Plan requires states to meet specific carbon emissions targets based on the amount of pollution emitted from in-state power plants. The rule marks the most aggressive action taken by the United States to combat climate change. The rule, however, is currently facing a litany of legal challenges. In addition to the questionable legal authority under which the regulation was promulgated, the regulation may be constitutionally problematic. This paper examines whether the rule violates the Equal Sovereignty Principle as articulated in the Supreme Court's blockbuster ruling in Shelby County v. Holder because it exempts Alaska and Hawaii without …

Where Else Is The Appearance Of Corruption Protected By The Constitution: A Comparative Analysis Of Campaign Finance Laws After Citizens United And Mccutcheon, Vladyslav Dembitskiy

UC Law Constitutional Quarterly

This Note focuses on the appearance of political corruption in the United States after the two infamous Supreme Court decisions, Citizens United v. FEC and McCutcheon v. FEC. As a foundation, this Note explains that traditional bribery-giving money under the table to get political favors-is generally obsolete because developed countries penalize it equally. Because traditional bribery is unequivocally penalized in all contexts, people have found ways to obtain political favors lawfully: by putting money on the table, as opposed to under the table, through lobbying and campaign finance. This is called "appearance of corruption" because the practice looks like bribery, …

Reforming High-Stakes Police Departments: How Federal Civil Rights Will Rebuild Constitutional Policing In America, Ivana Dukanovic

UC Law Constitutional Quarterly

Over the past two decades, the Justice Department has untaken dozens of topdown interventions of local police departments plagued with unconstitutional policing. From Albuquerque, New Mexico, to Ferguson, Missouri, the Justice Department's Civil Rights Division has instituted reform in departments exhibiting patterns or practices that violate individuals' constitutional rights. The government's tool for imposing such reform and oversight on local, state power is a twenty-three-year-old statute: 42 U.S.C. 14141. This Note proposes that § 14141 is the change agent for rebuilding constitutional policing in America.

But with change comes challenge, and many pushback departments continue to resist reform. The Note …

Government Speech And Circumvention Of The First Amendment, Mark Strasser

UC Law Constitutional Quarterly

The government speech doctrine permits the government to convey its stance on issues through its actions. This article focuses on the development of the government speech doctrine and argues the necessity of limitations on this doctrine to prevent infringements on First Amendment rights. In Rust v. Sullivan, the Supreme Court first recognized what would later be characterized as the government speech doctrine, holding that a statute that prevented clinics from receiving federal funds for abortion-related activities did not violate the Constitution. The Court has subsequently suggested that this was in essence allowing the government to convey a particular message through …

Completing Government Speech's Unfinished Business: Clipping Garcetti's Wings And Addressing Scholarship And Teaching, Edward J. Schoen

UC Law Constitutional Quarterly

This article examines two major developments stemming from the U.S. Supreme Court decision in Garcetti v. Ceballos, in which the Court ruled: Statements made by public employees pursuant to their official duties are not protected by the First Amendment. Furthermore, the Court disclaimed whether or not its ruling applied to scholarship of teaching. First, this decision has triggered an avalanche of circuit court decisions dismissing 42 U.S.C. § 1983 employment retaliation claims, because the courts usually determined the expression was derived from the government employee's actual duties. Second, the disclaimer has created inconsistency and doubt in assessing § 1983 public …

The American Bar Association's Criminal Justice Mental Health Standards: Revisions For The Twenty-First Century, Christopher Slobogin

UC Law Constitutional Quarterly

The American Bar Association's revision of its Criminal Justice Mental Health Standards ("Standards"), promulgated in August 2016, tackles a wide range of issues concerning the involvement of people with mental disabilities in the criminal justice system. Consisting of over ninety black letter provisions, the Standards address diversion and specialized courts; the role of mental health professionals, the police, lawyers and correctional officials in cases involving people with mental disabilities; and the law and processes associated with competency, insanity, commitment, and capital and non-capital sentencing. This article describes the genesis of the Standards and explains their content, organized in terms of …

Twenty-Week Abortion Statutes: Four Arguments, Randy Beck

UC Law Constitutional Quarterly

The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has offered a rationale for the viability rule, and the arguments in non-majority opinions are conclusory or fail to distinguish viability from earlier possible lines. The viability rule is arbitrary because the capacity of a fetus to survive outside the womb says nothing about the value of the fetus from the standpoint of the state or the burden of pregnancy on the mother, the two interests the rule purports to balance. The arbitrary character …

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

UC Law Constitutional Quarterly

This article examines the significance of the United States Supreme Court decisions in Meyer v. Nebraska and Pierce v. Society of the Sisters under the backdrop of shifting views on what constitutes appropriate state regulation of education. On its face, the question of how a state may regulate education may not seem so controversial. However, the idea that the state could mandate public education and take children from their parents conflicted with traditional views of family autonomy and parental authority.

Progress would occur with the steady diminution of state authority, but under the guidance of the court. Part I of …

Operation Inherent Resolve And The Reemergence Of The Debate Over The War Powers Resolution, Kyle C. Walker

UC Law Constitutional Quarterly

In the face of terrorist threats and the emergence of the Islamic State of Iraq and the Levant, President Obama has authorized air-strikes as part of the country's antiterrorism campaign. This article begins by discussing the unique justifications for the executive's actions as commander in chief, and identifies the difficult question of defining where Presidential and Congressional war powers begin, end, and overlap. Specifically, the article describes how the Executive has relied on the 2002 Authorization to Use Military Force in Iraq as well as the President's constitutional authority to protect American citizens and national security. In doing so, President …

The Real-World Fourth Amendment, Brent E. Newton

UC Law Constitutional Quarterly

The Fourth Amendment's protections against unreasonable searches and seizures have resulted in a massive body of appellate case law, including several hundreds of decisions by the Supreme Court and many thousands of decisions by the lower courts. The Article, written by a former long-time public defender, provides a comprehensive and accessible survey of the Fourth Amendment as applied to recurring real-world situations in which a police officer or other governmental official engages in a search or seizure of property or a person. The Article addresses both "substantive" and "remedial" aspects of the Fourth Amendment in both criminal prosecutions and civil …

Shocking The Eighth Amendment's Conscience: Applying A Substantive Due Process Test To The Evolving Cruel And Unusual Punishments Clause, Jency Megan Butler

UC Law Constitutional Quarterly

Excessive force is today's most prominently debated governmental abuse. The "shocks the conscience" test is a widely used substantive due process protection that analyzes excessive force claims. More specifically, under excessive force law, the "shocks the conscience" test evaluates whether the government has violated a person's constitutional rights. This Note begins with an overview of Eighth Amendment history and articulates a problem in today's Cruel and Unusual jurisprudence created by the Supreme Court's unsettled proportionality review. This Note then proposes that the Cruel and Unusual Punishments Clause should be interpreted with the "shocks the conscience" standard. For an Eighth Amendment …

Procedural Due Process Liberty Interests, Ann Woolhandler

UC Law Constitutional Quarterly

The Supreme Court's divided decision inKerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia's plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer's dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. …

Waiving Goodbye: In Memory Of The Reasonable-Doubt Standard, Steven Wall

UC Law Constitutional Quarterly

This Note will focus on the unique helplessness of innocent defendants who have plead guilty in cases involving governmental misconduct. The Supreme Court has recognized that our criminal justice system is, for the most part, a system of pleas rather than trials. Unfortunately, there are many indications that innocent people plead guilty. The most developed realm of law being used to push for measures to reduce the occurrence of this phenomena is the body of cases stemming from Brady v. Maryland. Brady v. Maryland requires prosecutors to disclose material exculpatory evidence (evidence demonstrating actual innocence) and impeaching evidence at trial. …

Examining The Americans With Disabilities Act's Reassignment Provision Through An Equal Protection Lens, Danielle Bogaards

UC Law Constitutional Quarterly

Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a …

The Reasonability Of California Groundwater Policies In Light Of The Drought, Lindsey Pace

UC Law Constitutional Quarterly

California is America's largest agricultural farming state. Agriculture in the Central Valley is a multimillion dollar industry. California is the fifth largest supplier of food in the world. The productivity of the agricultural sector of the Central Valley is one reason why California could overtake Brazil this year as the world's seventh largest economy. The agricultural sector produces over $30 billion-dollars' worth of America's supply of almonds, milk, cattle, grapes, strawberries, walnuts, lettuce, hay, tomatoes, and more. Additionally the state produces over 400 commodities and nearly half of all US-grown fruits, vegetables, and nuts. California's robust agriculture sector is the …

Hands Up, Don't Shoot: Policing, Fatal Force, And Equal Protection In The Age Of Colorblindness, Zach Newman

UC Law Constitutional Quarterly

This note discusses race, policing, the use of fatal force, and the Black Lives Matter movement, contextualizing it within the "prison industrial complex," the "New Jim Crow," the hegemony of colorblindness and postracialism, and jurisprudential limitations placed on Equal Protection. It argues that narrow legal reforms of policing, like body cameras or increased training, cannot be conceived of as complete solutions. Although these reforms are important, they must be connected to critiques of and actions against overarching structures of stratification, subordination, and social control in advanced capitalism. Contemporary policing is one manifestation of a deeply flawed and racialized criminal punishment …

The Health Insurance Mandate - A Tax Or A Taking, Karl Manheim

UC Law Constitutional Quarterly

The Patient Protection and Affordable Care Act requires Americans to have or buy health insurance. The Act, particularly the "individual mandate," has generated enormous political controversy and constitutional litigation. The House of Representatives has voted 54 times to repeal the law, and President Obama's implementation has spurred calls for his impeachment.

The Act has already reached the Supreme Court twice. In National Federation of Independent Business v. Sebelius ("NFIB"), the Supreme Court held the mandate could not be sustained as an exercise of Congress' power over interstate commerce, but was valid under the Tax and Spend Clause. Other constitutional challenges …

Eugenics Then And Now: Constitutional Limits On The Use Of Reproductive Screening Technologies, Hannah Lou

UC Law Constitutional Quarterly

Advancements in assisted reproductive technologies ("ARTs") have allowed prospective parents to exercise unprecedented control over the reproductive process and their progeny. Among ARTs, prenatal screening and diagnosis is a particularly powerful category of tools due to its mass accessibility, non-invasiveness, and availability before conception and during pregnancy. However, increased adoption of these tools also forces parents and societies to confront a broad range of ethical, legal, and personal questions about how genetic information should be used to screen for or preselect the traits of prospective offspring.

This Note advocates that based on historical experience, previous court decisions, and modern evolution …

The Unconstitutionality Of The Current Housing Arrangements For Intersex Prisoners, Nicole Antonopoulos

UC Law Constitutional Quarterly

The perpetuation of a binary society with regards to sex creates problems for intersex persons who do not easily categorize as male or female. The current housing and treatment of intersex prisoners are based partly on this classic male-female dichotomy. This Note sheds light on sex as a spectrum, and examines the potential constitutional violations that arise from the current prison housing arrangements and treatment. It also analyzes the experiences of intersex prisoner Miki Ann DiMarco and her constitutional challenges as brought forward in DiMarco v. Wyoming Department of Corrections. Additionally, this Note suggests that intersex discrimination is a form …

Smile For The Camera: The Revenge Pornography Dilemma, California's Approach, And Its Constitutionality, Snehal Desai

UC Law Constitutional Quarterly

Revenge pornography is an increasingly prevalent form of cyberharassment, in which embarrassing and sexually explicit pictures and videos are posted on the internet without the consent of the depicted individual. Due to the First Amendment's protection of speech and expression, victims have had little legal recourse against their cyber-harassers. Many states have started to pass laws prohibiting revenge pornography, which have fortunately created some protections for victims. However, the recent passage of such statutes has also led to the debate about their constitutionality.

This Note first examines revenge pornography from various First Amendment perspectives, concluding that courts should carve out …