The Georgetown Law Journal Online

In his insightful article, The Durability of Private Claims to Public Property, Professor Bruce Huber explores the nature of private claims to the use of federal lands as well as natural resources such as oil, gas, water, and coal located in or around those lands.1 The publication of Professor Huber’s article in April 2014 could not have been timed more perfectly to coincide with Cliven Bundy’s standoff that same month with Federal Bureau of Land Management (BLM) personnel over Bundy’s refusal to pay more than a million dollars of grazing fees incurred over decades of Bundy’s use of federal lands.2 The significant news coverage of the Bundy dispute placed a national spotlight on the tensions between long-term private uses of federal public lands and federal land managers that have always been prominent in the West but have received much less attention in the rest of the nation.
This Response Essay proceeds in three Parts. First, it describes Huber’s concept of the “durability” of private claims to public property and draws parallels to the Bundy dispute. Second, it suggests that the personhood rationale behind the doctrine of adverse possession can help explain the durability of private claims to public property. This is true even though, as every student of first-year property law learns, neither the doctrine of adverse possession nor prescriptive easement generally applies to federal lands. Third, this Response Essay applies some of these principles to the Bundy dispute to provide additional insights into why the dispute so captured the public’s attention and generated such strong feelings on both sides of the debate.

In Shelby County v. Holder the Supreme Court held that the preclearance provision of the 1965 Voting Rights Act (VRA) was unconstitutional as presently constituted.  Section 5 of the VRA requires certain states, mainly in the Deep South, to preclear certain changes to their election laws before they can go into effect. These states must either seek approval from the Department of Justice (DOJ), or file a declaratory judgment action in the United States District Court for the District of Columbia. If a state pursues the latter option, a three-judge district court is convened, and a direct appeal to the Supreme Court is available. Section 4 sets out criteria to determine which jurisdictions are subject to Section 5, and a majority of the Court held in Shelby County that the coverage formula in Section 4 was unconstitutional on federalism grounds, as it was based on decades-old voting data and unfairly singled out a small number of states for disparate treatment.

The majority permitted Congress to revamp and update the Section 4 criteria in response to the decision by tying it to current evidence of voting discrimination in the states. Following Shelby County, an avalanche of scholarly commentary appeared on the constitutionality of Section 5 and various possible legislative fixes to the statute. Responding to the Court’s invitations, Congress has introduced bills to adjust Section 4 and other aspects of the VRA. What is missing from this commentary and these proposals, however, is virtually any discussion of the geographic limitation to the litigation option to apply for preclearance. That is, despite the federalism concerns raised by lodging exclusive venue of such actions in the federal courts for the D.C., neither the Court nor commentators have directly addressed any legal or policy problems with that exclusive venue. This inattention is probably due in large part to the plaintiffs and the numerous amici in Shelby County not having explicitly raised the exclusive D.C. venue of preclearance litigation as a federalism concern.

This Essay proceeds as follows: Part II summarizes the history and controversies attending the passage of Section 5, focusing on the placement of exclusive venue under that provision in the District of Columbia. The same controversy concerned early litigation under that provision and the first two reauthorizations of Section 5, but it eventually dissipated. Part III argues that a reinvigoration of that debate is appropriate for several reasons. The original aims for the exclusive venue are no longer sound today; there is no present need for this type of specialized and exclusive judicial venue; and the jurisprudence on Section 5, should Congress statutorily reauthorize it in the wake of Shelby County, could benefit from the normal application of venue rules, which would permit the percolation of issues in federal courts throughout the country. Part IV concludes this Essay.

 

This Note argues that when Congress appropriates funds in excess of its expected revenues, it implicitly authorizes the Treasury to borrow the amount necessary to meet that shortfall. By requiring separate authorization to increase the debt limit, Congress leaves open the possibility that politicians will cause the government to default on its obligations. Thus, a separate requirement is an unconstitutional subversion of the full faith and credit of the United States.

Part I surveys the history of the debt ceiling in the United States leading up to the modern debt crises. Part II analyzes the consequences of failing to meet our financial obligations and asserts that such an abdication of responsibility is unconstitutional given Congress’s sacrosanct duty to protect the nation’s credit. Part III explores the “nuclear option” proffered by Democrats to insure against the Republicans’ obstruction and argues that, although potentially legal, it is not viable and fails to address the underlying issue. Finally, this Note concludes by arguing that the debt ceiling should automatically rise to accommodate shortfalls in expenditures.

On November 19, 2014, the Department of Justice’s Office of Legal Counsel issued an opinion entitled “The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others.” The opinion justified two new initiatives by the Department of Homeland Security. The first initiative dealt with the prioritization of removal of certain categories of aliens unlawfully present in the United States. The second initiative established a deferred action program for the parents of children categorized as U.S. citizens or lawful permanent residents (LPRs).

OLC’s opinion is of great practical importance for both general and specific reasons. As a general matter, the framework it instituted for gauging whether a particular exercise of enforcement discretion is consistent with relevant constitutional principles is likely to have continuing importance in all areas where administrative agencies exercise discretion. As a specific matter, it seeks to place the Obama Administration’s immigration initiatives on firm legal footing by justifying those broad programs as valid exercises of enforcement discretion.

The opinion founders, however, on the complexities of immigration law, and thus its specific application of the opinion’s framework to the Executive’s initiatives is ultimately unconvincing. The opinion overstates the degree to which the Immigration and Nationality Act (INA) is concerned with family unification, misapprehends the extraordinarily narrow scope of relief provided to the parents of U.S. citizen and LPR children under existing law, and misstates the limited scope of prior congressional acquiescence to deferred action programs. These flaws undermine the opinion’s key conclusion that DHS’s deferred action programs are consistent with congressional policy, and thus also call into question the ultimate judgment that these initiatives are permissible exercises of enforcement discretion. . . .

In a thoughtful article in a recent issue of The Georgetown Law Journal, Professor Alex Raskolnikov made a distinction between two types of socially undesirable behavior: irredeemably inefficient acts (or “irredeemable acts”) and contingently inefficient acts. Irredeemable acts are acts that are always socially undesirable; contingently inefficient acts are acts that are sometimes undesirable but sometimes desirable. Irredeemable acts always reduce welfare, in any form and at any level, because they are “inefficient at their core.” Theft of money, for instance, never creates a surplus because it is essentially a zero-sum exchange that becomes negative-sum as soon as there are transaction costs. Contingently inefficient acts, on the other hand, may or may not be socially undesirable depending on the magnitude of costs that need to be balanced. Pollution, for instance, is socially harmful when its costs exceed the benefits of the polluting activity, but socially desirable when the pollution costs are relatively small compared to the benefits. Therefore, we cannot say categorically that pollution is always bad; there is such a thing as “good pollution” too. Similarly, speeding can be bad for society when the accident costs outweigh the timesaving benefits, but good in the opposite situation.

In this short reaction paper, I hope to enrich Raskolnikov’s framework in three ways. First, I suggest making a further distinction between three types of contingently inefficient acts—those that can be cured by telling the actor what to do (for instance, through due care rules), those that can be cured by letting the actor internalize the harm (for instance, through corrective taxes for pollution), and those that are too hard to cure and therefore given up on by the legal system (for instance, by simply permitting advertising even though it may be wasteful in some cases). Second, I want to go deeper into a topic briefly raised by Raskolnikov—the relationship between irredeemable acts and rent-seeking behavior. And third, I want to connect the first two points by showing that rent seekers will avoid plain rent-seeking acts that are easily recognized by the legal system as irredeemable acts, and choose more disguised forms of rent seeking that may also have social benefits—in essence moving from Category I (irredeemable acts) to Category IIc (contingently inefficient acts that cannot be simply cured through harm internalization and are therefore permitted by the legal system). This way, I hope to show how “rent camouflage theory” could be integrated into Raskolnikov’s framework.

Occasionally the Supreme Court of the United States hears a case simply to correct an injustice. That happened in United States v. Yates. Yates, a fishing captain, threw back three undersized fish. He later was convicted of violating the Sarbanes–Oxley Act, a statute designed to prevent corporate fraud, on the ground that he destroyed a “record, document, or tangible object,” even though the fish could not remotely be deemed a financial record or an information-storage device.  The court of appeals upheld Yates’s conviction by relying entirely on a dictionary definition of the term “tangible object.” That literal-mindedness led to an uncommonly silly result. The Supreme Court should not only reverse the judgment of conviction, but also underscore two canons of construction. First, courts should use common sense when interpreting criminal laws, rather than be slaves to the dictionary. Second, the rule of lenity is a “rule of lenity, not just an “option” of lenity, and it is an especially important rule when a defendant faces a potentially severe sentence.

Since the 1980s, oversight of punishment in the federal criminal system has been centralized. A single body, the Sentencing Commission, regulates criminal punishment through the Sentencing Guidelines. The Guidelines are designed to bring consistency and transparency to criminal punishment, but come with the inevitable cost of a loss of case-by-case judicial discretion. In contrast, punishment in the federal administrative state is almost completely decentralized. No single body oversees agency punishment practices. The administrative model makes the opposite choice of the criminal model. It favors individualized punishment determinations over the benefits of consistency and transparency.

In this Essay, I consider the arguments in favor of a sentencing commission for the administrative state. I conclude that although the advantages of centralized punishment are real, they are not large enough to support centralizing the administrative civil penalty power into a single body. Administrative enforcement involves a level of specialized knowledge and integration with other agency regulatory choices that is absent in the criminal context. However, while a top-down approach enforcing penalty consistency and transparency would be a mistake, agencies can and should work from the bottom up to develop their own penalty guidelines and coordinate their penalty practices with parallel regulators.

The Supreme Court took two cases this Term involving doctrines of criminal law typically dealt with by state courts, and in each of them, it limited criminal liability for harms not attributable to a defendant’s culpability.

Although the Court interprets federal criminal statutes with some frequency, it rarely considers provisions of statutes that would provide persuasive authority for the interpretation of state criminal codes—at least not the most used provisions of state criminal codes. Unlike state criminal laws, federal criminal laws have jurisdictional requirements and generally have more complex components. It is typically these unique aspects of federal criminal laws that the Supreme Court considers. Yet in two recent decisions, Rosemond v. United States and Burrage v. United States, the Court considered—and limited—the scope of accomplice liability and a drug-crime-specific version of the felony murder rule.

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After years of denial, complacency, and rigid adherence to orthodoxy, some in the Catholic Church have begun to look within and ponder change. The same can be said about American law schools these days. These two institutions, often supported by the general population, negotiate between the elite and non-elite sectors of society, preach and abide by internal doctrine, facilitate transformations, serve the public at large, and help regulate behavior—just to name a few similarities. As big as they are, neither is insulated from scandal. They are not beyond criticism. Although change seems imminent, we are likely still in the rhetorical phase of the transition—and a decidedly profound period of change lies ahead.

The United States deports hundreds of thousands of immigrants each year, leaving many of the country’s eleven million undocumented immigrants living in constant fear of being torn from their families and homes. Because Congress has been unable to address this humanitarian crisis with meaningful legislative reform, President Obama recently announced that his administration will consider changes to its enforcement policy. By drawing a parallel to the nation’s experience with fugitive slave rendition, this Essay argues that President Obama should allow the states to work with U.S. Immigration and Customs Enforcement (ICE) to moderate the implementation of federal enforcement programs.

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In recent years, the community of experts in constitutional law has partly lost its ability to exclude arguments from the constitutional discourse on the basis that they defy the disciplinary rules of constitutional expertise. The most vivid demonstration of this development is the transformation of the “broccoli argument” from a “crazy” claim in the eyes of expert constitutional speakers to the law of the land in the Health Care case. By comparing Christopher G. Tiedeman’s 1890 book, The Unwritten Constitution of the United States, to Akhil Reed Amar’s 2012 book, America’s Unwritten Constitution, I expose a shift in the understanding of constitutional law in the United States. Rather than a language of expertise in which certain arguments are excluded since they defy the criteria of the discipline, constitutional law is now understood as more similar to a natural language in which there is no expert authority that has control over the language’s borders.

This Essay concerns a fact and a problem that bedevil modern government. The fact is that, as a society, we rely—deeply and pervasively—on administrative agencies to fix our troubles. By law, we place problems like air pollution, water pollution, climate change, toxic chemicals, food hazards, workplace risk, consumer deception, and more at the doorstep of administrative agencies and say to the agencies: please fix this, will you? The problem is that we often do not let them do their jobs. The result is a vast gulf between the promises of law and the realities we face.

The constraints on agencies and agency personnel take many forms. We slash their budgets, harass them in congressional hearings, nitpick their reasoning to death in the courts, and paralyze them with endless analytical prerequisites to taking action on the problems they are charged with addressing.

Here I would like to discuss just one of the constraints on agencies: White House control over agency decisionmaking. President Obama started this year with a metaphor: “I’ve got a pen, and I’ve got a phone,” the President said. What he meant is that even without action from Congress, he would use executive orders (the pen) and his convening power (the phone) to get things done. Critics of the Administration described the strategy as one of “bypass[ing]” Congress when Congress fails to act. Picking up the pen and the phone would, according to the President and his aides, lead to a “year of action” on priority issues.

I will suggest, however, that presidential power is deployed as often to delay or stop agency action as to prompt it. I will suggest that the President—and his aides—should, more often, put down their pens and their phones and let the agencies do their work. The Administration can get a whole lot done not by “bypassing” Congress but by following instructions laid down in statutes Congress has already passed. From this perspective, the President and his aides have much more than a pen and a phone to work with; they also have just about the entire U.S. Code. The hitch is that the Code brings with it limits as well as power.

The Patient Protection and Affordable Care Act and implementing regulations require for-profit businesses with more than fifty employees to include contraceptive products in their health care coverage for employees. Throughout the country, privately held corporations and their owners challenged this requirement on the grounds that it violates the Religious Freedom Restoration Act (RFRA), which states that the government shall not “substantially burden” a religious practice unless the regulation is “the least restrictive means” of serving a “compelling governmental interest.” The employers argued that requiring them to include contraceptives in employees’ health coverage substantially burdened their religious opposition to using certain contraceptives. In Burwell v. Hobby Lobby Stores, the Supreme Court held (5–4) that the contraceptive coverage mandate imposed a substantial burden on the employers’ religious opposition to contraception, and that the coverage mandate was not the “least restrictive means” of serving the government’s interest “in guaranteeing cost-free access to the . . . contraceptive methods.” Justice Ginsburg, in dissent, argued that the mandate did not substantially burden the employers’ personal practice of opposing contraception because it did not require employers to purchase or use contraceptives themselves; using contraceptives remained the independent decision of each employee. The dissent further noted two troubling aspects of the majority’s position. First, it denies employees benefits available to most other workers, and thereby imposes the employer’s religious practice on its employees. Second, it lays the ground for employers to challenge numerous regulations that protect workers, such as nondiscrimination and minimum wage laws, which may impose requirements in tension with an employer’s personal religious practices.

In this Essay, I argue that, in light of Hobby Lobby, RFRA should be amended to recognize the difference between religious practice that takes place in a personal setting and religious practice that takes place in a commercial setting, that is, during the course of a commercial employment relationship, “an area traditionally subject to government regulation.” This distinction between personal freedom and freedom when operating in the commercial sphere is far from novel. It is recognized elsewhere in constitutional law. The commercial speech doctrine, for example, applies a lesser degree of scrutiny to restrictions on “commercial speech” than to restrictions on noncommercial expression. Tighter regulation is justified in a commercial setting because commercial relationships impact the interests of third parties. This reasoning translates to religious exercise. Commercial speech is entitled to less protection because it does not further public discourse and it has the potential to deceive or mislead consumers. Religious exercise in a commercial employment setting may be entitled to less constitutional protection because it goes beyond the employer’s personal autonomy, and may burden the employees’ rights. Although employers may argue that their personal religious practices are inseparable from their commercial employment practices, commercial speech doctrine cases show that it is possible to objectively distinguish primarily commercial from primarily noncommercial settings, based on the broader purpose of the employer’s operation. Burdens on religious practice that occur during a commercial employment relationship should therefore be treated like commercial speech and subject to a lesser degree of scrutiny.