Constitutional Law Commons^™

Brief Amicus Curiae Of Administrative And Constitutional Law Professors In Support Of Petitioners, Robert Glicksman, Richard Pierce, Alan B. Morrison, Jeffrey Lubbers, Peter L. Strauss

Amicus Briefs & Court Filings

INTRODUCTION AND SUMMARY OF ARGUMENT: The ninety-six temporary agricultural workers employed by respondent were allowed to come to the United States solely because Congress established the program that governs their employment. As petitioners’ brief demonstrates, in order for respondent to be eligible to bring in foreign workers, it had to submit an application to the Department of Homeland Security. As part of that process, respondent had to establish that it would not employ non-citizen workers to displace domestic workers. Included in the required showing is an agreement by respondent to pay both domestic and foreign workers the same pay, so …

Le Rôle Du Juge Constitutionnel Libanais Dans La Sauvegarde Des Droits Processuels Fondamentaux, Salim Jreissati

Proche-Orient, Études juridiques

No abstract provided.

Le Parlement Arabe, Gilbert Aoun

Proche-Orient, Études juridiques

No abstract provided.

Regulating Deregulation: Why States Should Preempt Mandatory Inclusionary Housing Programs, Anna Bailey

BYU Law Review

Instead of easing the housing crises that exist across the country as intended, mandatory inclusionary housing programs burden development, impeding smaller projects and stunting development that in the aggregate could alleviate housing shortages. In this Note, I argue that states should preempt local governments from imposing burdensome mandatory inclusionary housing programs because they interfere with property rights and are counterproductive in their results. The Nollan-Dolan rough proportionality test requires that land-use conditions must be related to and proportional to the problem created by the land development project. The Supreme Court’s recent holding in Sheetz v. County of El Dorado clarified …

Private Disestablishment, Gaurav Mukherjee

BYU Law Review

Should public funds support religious schools? The Supreme Court’s 4–4 decision in St. Isidore of Seville Catholic Virtual School v. Drummond may have blocked America’s first religious charter school but set no precedent, leaving core constitutional questions unanswered. This Article argues that St. Isidore illustrates “private disestablishment,” where religious institutions claim private status while exercising public power—allowing them to access public benefits without accepting public constraints. Blurring the boundary between private and public allows these entities to secure public benefits like funding and regulatory advantages while avoiding obligations that typically constrain public institutions, such as non-discrimination or religious neutrality.

The …

"People" Not "Persons": Noncitizens And The Fourth Amendment, Juan Caballero

Loyola of Los Angeles Law Review

American history is littered with threats and attempts at mass deportation. The Trump administration’s announced policy of mass deportations is the most recent manifestation of such a policy and one that perhaps poses an unprecedented threat to the rights and liberties of noncitizen communities. The administration’s aggressive rhetoric, militarized border policy, and embrace of new technology together portend a new era of surveillance and control over noncitizen communities. This threatens to supercharge previous and ongoing surveillance efforts within the immigration enforcement paradigm, such as the Department of Homeland Security's Alternatives to Detention (“ATD”) program. These programs place participants under a …

The Cruelty Is The Point: How The Extreme Psychological Effects And Punitive Ineffectiveness Of Solitary Confinement Culminate In An Unconstitutionally Disproportionate Punishment, Zachary Bosak

Journal of Civil Rights and Economic Development

(Excerpt)

This Note will propose that solitary confinement can be wholly abolished under the Eighth Amendment to the Constitution. This Amendment provides in full that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” When taken in a broad, isolated sense, the meaning of and purpose behind this Amendment are straightforward and uncontroversial; the founders meant to protect Americans from “methods of punishment” considered unreasonably severe and inhumane. However, when one attempts to place this Amendment within the context of a legal issue, its clarity erodes, and questions arise as to its applicability. …

Escaping Quarantine: Marine Hospitals, The Constitution Act, 1867 And Canada’S First Federal Health Care Program, Dan Dwyre

Dalhousie Journal of Legal Studies

Previous scholarship has argued that the enumeration of marine hospitals as a federal head of power in the Constitution Act, 1867 reflected a national concern over immigration and quarantine. This article disputes that. Using primary sources, this paper demonstrates that Canadian marine hospitals were established in port communities to provide for the general health of itinerant merchant sailors, who would otherwise be a burden on local hospitals and charitable organizations. The article concludes that marine hospitals can be viewed in retrospect as one of Canada’s first federal health care programs.

Show Your Rules: Ab 587 And The Future Of Content Moderation Disclosure Laws, Roz Kohan

Loyola of Los Angeles Law Review

Social media platforms play an integral role in social and political life. They control a large proportion of public speech through their own rules, curation, and freedom to amplify or suppress content as they see fit. California’s AB 587 requires social media platforms to disclose these content moderation policies.

The Ninth Circuit in X Corp. v. Bonta recently invalidated AB 587’s Content Category Report provisions because it compelled commercial speech. This Note explains why this ruling is inaccurate. The Ninth Circuit misapplied Moody v. NetChoice, the key Supreme Court precedent that recognized platforms’ First Amendment protections around their editorial …

The President As Agent: Reframing The Major Questions Doctrine, Matthew Collins

ConLawNOW

On the heels of the Learning Resources v. Trump decision, this Essay argues that agency theory provides an important framework for understanding the major questions doctrine. This perspective has received little attention in legal scholarship. The Essay casts the major questions doctrine in a new light by framing it as a constraint on the president acting as Congress’s agent. By highlighting this bridge between private-law agency principles and public law, the piece offers two novel insights. First, it reconceptualizes the relationship between the major questions and nondelegation doctrines: the former addresses the unfaithful execution of Congress’s directives by the executive …

Rethinking International Armed Conflict: Legal Challenges In The Age Of Hybrid Warfare, Oleksandr Havryshuk, Roman Hryshchenko

Brooklyn Journal of International Law

The binary classification of armed conflicts under international humanitarian law (IHL) — distinguishing international armed conflicts (IACs) from non-international armed conflicts (NIACs) — was forged in the aftermath of World War II and increasingly fails to capture the realities of twenty-first century warfare. Hybrid tactics, cyber operations, the proliferation of private military companies (PMCs), the expanding role of non-state actors, and the near-disappearance of formal declarations of war have eroded the analytical utility of the existing framework, generating legal uncertainty and weakening protections for affected populations. This Article critically examines the conceptual foundations of IAC as set out in Common …

International Commitments Of Japan’S Prefectures With Foreign States: Empirical Patterns, Authority, And Legal Nature, Yuhei Matsuyama

Brooklyn Journal of International Law

Under international law, sovereign states are the primary subjects of rights and obligations and possess the authority to conclude treaties. Domestic constitutions typically allocate foreign affairs powers to national governments. Nonetheless, subnational governments—including prefectures—regularly engage in international activities. In some federal systems, constituent units are expressly authorized by their constitutions to conclude international agreements. By contrast, the Constitution of Japan vests foreign affairs authority exclusively in the national executive and is silent on the authority of prefectural governments. This Article uncovers and analyzes approximately 180 previously unexamined international commitments concluded by Japanese prefectural governments with foreign states, identified through information …

Navigating The Legal Waters Of Privatized Commodities And Human Rights: An Exploration Of The Tension Between Water As A Human Right And Water As Investment Property Under International Law, Ella Capen

Brooklyn Journal of International Law

This Note examines the clash between domestic law and international law within the context of Chile’s 2022 modification to the 1981 Water Code as the country transitions from treating water as a privatized commodity to water as a public good. Chile’s 1981 Water Code emerged against the backdrop of a neoliberal economic regime and privatization scheme enabled by the United States and enforced by dictator Augusto Pinochet. This Note reveals the potential difficulties in unraveling established economic and legal foundations, and the conflicts between bilateral investment treaties and local legislation that mutually govern property rights. By examining Chile’s domestic Law …

Native Nations, Noncitizens, And The Supremacy Clause, Geoffrey Heeren

Brooklyn Law Review

Native Nations and noncitizens have often prevailed in the face of adverse state action by asserting treaty rights, arguing that state actions are preempted by federal authority, or relying on federal common law. These claims are largely rooted in the Supremacy Clause of the United States Constitution, rather than Native Nations’ or noncitizens’ rights of their own. At the same time, the Supremacy Clause jurisprudence that developed as Native Nations and noncitizens raised these claims coincided with the growth of federal “plenary power” in both areas, depriving immigrants and Native Nations of strong rights of their own when faced with …

The Dormant Commerce Clause And Personal Jurisdiction: Reasonable Limit Or Unnecessary Complication?, Max Baron

Brooklyn Law Review

Frequently, corporations require consumers to agree to litigate disputes in locales favorable to their corporate interests. In the Supreme Court’s 2023 decision Mallory v. Norfolk Southern, it was a corporation that found itself subject to suit in an unwanted jurisdiction. This corporation—Norfolk Southern Railway—was required to answer a suit in Pennsylvania solely because of its consent to do business there under Pennsylvania’s “jurisdiction-via-registration” clause for foreign businesses. In that case, Justice Samuel Alito raised the possibility of injecting a separate doctrine of constitutional analysis—the dormant Commerce Clause—into personal jurisdiction analysis. To Justice Alito, such “jurisdiction-via-registration” statutes may be unconstitutional when …

Lies Begin At Conception: Crisis Pregnancy Centers And The Right To Deceive, Abigail Gainer

Brooklyn Law Review

Crisis Pregnancy Centers (CPCs) are faith-based, free pregnancy care facilities designed to attract vulnerable pregnant individuals, especially those who may be considering abortion. Through the use of deceptive practices, CPCs, which far outnumber abortion clinics, are able to intercept pregnant people seeking care and discourage or prevent them from receiving abortion care. Pro-life legal groups aggressively wage legal battles on states who seek to curb CPC-propagated deception. In 2018, one of these groups achieved a victory for CPCs in NIFLA v. Becerra, where the Supreme Court held that California’s regulations requiring CPCs to inform clients about state-sponsored abortion services and …

You Must Be This Tall To Scroll: California's Questionable Approach To Parenting By Policy, Caroline M. Cuddy

Pace Law Review

This note examines California's Protecting Our Kids from Social Media Addiction Act (SB 976), signed into law in September 2024, which prohibits personalized algorithmic feeds on minors' accounts without pa- rental consent and restricts platform notifications during school hours and nighttime. Drawing on the Supreme Court's decision in Brown v. Entertainment Merchants Association and related federal litigation, this note argues that SB 976 is unconstitutional under the First Amendment. Specifically, SB 976 is underinclusive because it fails to meaning- fully reduce minors' screen time, exempts comparable addictive plat- forms, and permits the very algorithmic feeds it deems harmful upon parental …

Chipping Away At Stone: Rethinking The Establishment Clause After Kennedy, Christian Edmonds

Pace Law Review

In Kennedy v. Bremerton School District, the Supreme Court abandoned the Lemon test and replaced it with a framework grounded in historical practices and understandings. Yet lower courts have struggled to operationalize that standard, and some have continued to rely on Stone v. Graham, a brief 1980 per curiam opinion rooted entirely in Lemon, as controlling precedent. This Article argues that Stone cannot survive Kennedy’s wholesale repudiation of Lemon and its progeny. Using the Fifth Circuit’s decision in Roake v. Brumley, which struck down Louisiana’s Ten Commandments display law on the basis of Stone, as a case study, the Article …

Advocacy Matters, Richard Collins

American Indian Law Journal

The Supreme Court’s 2022 Castro-Huerta decision was wrong on the points it discussed. It was doubly wrong for a reason it ignored. But the latter error was shared because all briefs and the dissenting opinion ignored it as well. The question presented was whether a nineteenth-century federal Indian country statute provided for exclusive federal jurisdiction over interracial crimes, or for concurrent authority with states. The Court held that the statute allowed concurrent jurisdiction. But it ignored the fact that Congress and the Court, until fairly recently, avoided concurrent federal-state jurisdiction over crimes. Had the self-styled originalist Justices taken their theory …

Stability At Stake: The Effects Of Overturning Chevron On Indian Gaming, Evan Callahan

American Indian Law Journal

The Supreme Court’s decision in Loper Bright to overturn Chevron Deference marks a significant change in administrative law and could have drastic consequences for the regulation of Indian gaming in the United States. This Note explores the implications of such a shift, emphasizing the importance of maintaining stability in the highly regulated gaming industry. Many stakeholders, including operators, investors, regulatory agencies, and patrons, may face significant uncertainty without doctrines such as Chevron Deference. Without agency expertise in interpreting statutes, the Court may instead directly influence the regulation of Indian gaming in the United States, presenting challenges and uncertainties for all …