By Grace Koppenheffer

As morbid as it is, most of us have probably thought about the way we would want to die, and the ways we definitely would not.  We instinctively recoil against those deaths that seem the most painful, the most inhumane.

Richard Bernard Moore, a death row inmate in South Carolina, was the first South Carolina prisoner to decide the method of his execution.[1]  In 2021, after South Carolina had had problems for years securing lethal injection drugs, the state passed a law that “made the electric chair the default execution method instead of lethal injection, and also codified the firing squad as an alternative option for condemned inmates.”[2]  Moore’s options were either death via electric chair or death via firing squad, and although he found both options unconstitutional, “he more strongly opposed death by electrocution and only chose the firing squad because he was required to make a choice.”[3]  His death was scheduled for April 29, 2022, but the South Carolina Supreme Court issued a temporary stay on April 20, 2022.[4]

Moore’s death would have been the first time South Carolina killed an inmate via firing squad, and only the fourth firing squad execution in the country since 1976.[5]  Although four states (Mississippi, Oklahoma, South Carolina, and Utah) allow death by firing squad, the previous three all happened in Utah, with the most recent firing squad execution in 2010.[6]  In Utah, “[t]he prisoner is strapped into a chair, has a hood put over his or her face and a target placed on his or her chest above the heart.”[7]  In the event of stray bullets or ricochet, sandbags are placed around the chair.[8]  There are five sharpshooters, but one has a blank, so that each shooter can have “psychological deniability,” which may itself be imperfect because “they can tell the difference between live ammunition and a blank.”[9]  The South Carolina law provides, “[i]n the case of a firing squad execution, three volunteer prison workers will train their rifles on the condemned prisoner’s heart.”[10]

The Eighth Amendment guarantees that “cruel and unusual punishment [cannot be] inflicted.”[11]  The United States Supreme Court, however, has never struck down a method of carrying out the death penalty as unconstitutional.[12]  In the 1878 case Utah v. Wilkerson,[13] the Court explicitly stated that death by firing squad was constitutional: “[c]ruel and unusual punishments are forbidden by the Constitution, but . . . the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”[14]  The Court, however, acknowledged that “punishments of torture,” including being “embowelled alive, beheaded, and quartered,” all practices that were at one time legal but which even the Court in 1878 recognized as “atrocious,” would be unconstitutional.[15]  When Wilkerson was executed sixty days after the Court’s decision, he chose not to be blindfolded.[16]  “[W]hen the sheriff commanded, ‘Ready, aim,’ Wilkerson would draw up his shoulders, causing the target to move and the bullets to miss the target, causing him to jump forward, screaming, ‘Oh God!’”[17] It took him twenty-seven minutes to die, bleeding and withering on the ground.[18]

In Baze v. Rees,[19] followed by Glossip v. Gross[20] and Bucklew v. Precythe,[21] the Court created a two-pronged test for an inmate to challenge the constitutionality of the method of his death: “first, he must demonstrate that the method of execution is very likely to cause substantial harm or suffering, and second, he must present a feasible, readily implemented, less painful alternative that is prescribed by at least one state.”[22]

Scholars, politicians, and those sentenced to death have various opinions about execution by firing squad.  In 2014, Representative Paul Ray from Utah described execution by firing squad as “probably the most humane way to kill somebody.”[23]  Some scholars also argue that the firing squad is better than lethal injection as a means of execution because it is less likely to be botched and it is less painful.[24]  Additionally, “[i]nmates in Alabama, Ohio, Tennessee, and Texas have asked to be executed by firing squad, arguing that lethal injection is very likely to have a risk of serious harm,” providing some evidence that if forced to choose, people would rather die by firing squad.[25]  Even Moore chose death by firing squad over the electric chair when he had to choose between them.

On the other hand, some, like Moore’s lawyers, have argued that execution by firing squad is “barbaric.”[26]  Some scholars contend that death by firing squad is not any less painful or less likely to be botched because “[h]urling projectiles toward an inmate in the hopes of causing cardiac failure, asphyxiation, or some other condition that will result in death, is far from an exact science.”[27]  Additionally, the inmates requesting execution by firing squad reside in states that do not allow that method to carry out the death penalty.[28]  In those states that do allow inmates to choose death by firing squad, they rarely do, and if they do elect such a method, they do so for reasons other than to reduce pain.[29]

Moreover, the Americans Civil Liberties Union of South Carolina has criticized South Carolina’s death penalty legislation as “modern-day lynching,” in part because only 27% of the state’s population is black but over half of those on death row are black.[30]  Executive director Frank Knaack stated, “[l]et’s not kid ourselves, this bill is about finding a new way to restart executions within a racist, arbitrary, and error-prone system.  We cannot divorce the method of execution from the system itself.”[31]

For those who oppose carrying out the death penalty by firing squad, the best route may be to go through legislatures rather than trying to have courts invalidate the method.  After all, “[s]hocking as they are, archaic methods of execution can affect how the public regards capital punishment,” and the legislature is designed to respond to public sentiment.[32]  If our modern sensibilities recoil from the thought of the firing squad being humane, not only will we as a society have to grapple with what methods are humane, but also we will need to grapple with whether the death penalty as a whole is humane.  As one judge put it, “[i]f we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”[33]


[1] Michelle Liu, South Carolina Inmate Picks Firing Squad over Electric Chair, AP News (Apr. 15, 2022), https://apnews.com/article/business-south-carolina-executions-5517b5184f8818bdd53e252af3b9cfc1.

[2] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, NPR (Apr. 20, 2022, 2:38 PM), https://www.npr.org/2022/04/20/1093812483/firing-squad-execution-blocked-south-carolina.

[3] Liu, supra note 1.

[4] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2.

[5] Id.

[6] Id.

[7] Laurel Wamsley, With Lethal Injections Harder To Come by, Some States Are Turning to Firing Squads, NPR (May 19, 2021, 5:00 AM)), https://www.npr.org/2021/05/19/997632625/with-lethal-injections-harder-to-come-by-some-states-are-turning-to-firing-squad.

[8] Id.

[9] Id.

[10] Liu, supra note 1.

[11] U.S. Const. amend. VIII.

[12] Methods of Execution, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/methods-of-execution (last visited Apr. 25, 2022).

[13] 99 U.S. 130 (1878).

[14] Id. at 134–35

[15] Id. at 135–36.

[16] Rob Warden & Daniel Lennard, Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment, 13 Nw. J. L. & Soc. Pol’y 194, 214 (2018).

[17] Id.

[18] Id.

[19] 553 U.S. 35 (2008) (plurality opinion).

[20] 135 S. Ct. 2726 (2015).

[21] 139 S. Ct. 1112 (2019).

[22] Stephanie Moran, Note, A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, 74 U. Mia. L. Rev. 276, 296 (2019).

[23] Mark Berman, The Recent History of States Contemplating Firing Squads and Other Execution Methods, Wash. Post (May 22, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/22/the-recent-history-of-states-contemplating-firing-squads-and-other-execution-methods/.

[24] See, e.g., Moran, supra note 22, at 299 (“[S]cientific research indicates that the initial pain felt by the victim may be comparable to being punched in the chest. There is some indication that the pain may also be hampered by an ‘adrenaline surge.’”) (quoting Christopher Q. Cutler, Nothing Less than the Dignity of Man: Evolving Standards, Botched Executions and Utah’s Controversial Use of the Firing Squad, 50 Cleveland St. L. Rev. 335, 413 (2002)).

[25] Id. at 304.

[26] South Carolina’s Planned Execution by Firing Squad Is on Hold for Now, supra note 2

[27] Michael Conklin, No, the Firing Squad Is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal, 44 Seattle U. L. Rev. 357, 369 (2021).

[28] Id. at 362

[29] Id.

[30] Wamsley, supra note 7.

[31] Id.

[32] Id.

[33] Wood v. Ryan, 759 F.3d 1076, 1103 (9th Cir. 2014) (Kozinski, C.J., dissenting), vacated by Ryan v. Wood, 573 U.S. 976 (2014).

By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]


[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022), https://news.bloomberglaw.com/bloomberg-law-news/miranda-warnings-probed-by-supreme-court-in-police-suit-appeal.

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022), https://www.nytimes.com/2022/04/20/us/supreme-court-miranda-rights.html?searchResultPosition=1.

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022), https://www.latimes.com/politics/story/2022-04-20/supreme-court-ready-to-shield-police-from-being-sued-for-ignoring-miranda-warnings-hold.

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022), https://www.youtube.com/watch?v=obCNQ0xksZ4.

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).

 

By Jonathon Beatty

In National Federation of Independent Business v. OSHA,[1] the Supreme Court reversed the Sixth Circuit Court of Appeals and stayed the Occupational Health and Safety Administration’s (“OSHA”) rule imposing a vaccine-or-test mandate on essentially every employer with at least 100 employees.[2]  The rule and subsequent stay affected some eighty-four million private-sector workers across the United States,[3] but the opinion has far-reaching implications for our entire constitutional order.  It highlighted a growing debate over the deference courts afford agencies when they ostensibly act pursuant to a congressional delegation of authority—namely the nondelegation and major questions doctrines.[4]  At the very least, a majority of the Court signaled a willingness to scale back Chevron deference,[5] while Justice Gorsuch, joined by Justices Thomas and Alito, appeared poised to strengthen a duo of related doctrines that could dramatically diminish the authority of administrative agencies moving forward.[6]  But what does all this mean?

Start with the text of the Constitution.  Article I, Section 1 grants “[a]ll legislative powers . . . in a Congress of the United States, which shall consist of a Senate and House of Representatives.”[7]  On its face, the Constitution is clear in its separation of powers: all legislation, or lawmaking, must originate in Congress.  As Justice Scalia put it, “This text permits no delegation of those powers . . . .”[8]  Since at least 1892, the Supreme Court has made this abundantly clear, “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”[9]  Hence, the nondelegation doctrine has developed from and is a product of the Constitution’s text.  Few, if any, rules, however, are absolute.  The nondelegation doctrine is no exception.[10]

The Constitution demands that the President faithfully execute the laws.[11]  In doing so, the executive necessarily must have some decision-making authority to administer laws.[12]  Even James Madison, who championed “the division of authority among the various branches of government,”[13] recognized that absolute separation “can never in practice be duly maintained.”[14]  Accordingly, the Court has long sought to strike the balance between maintaining a clear separation of powers and allowing Congress to delegate limited rulemaking authority to administrative agencies for practical purposes.[15]  Effective governance, the argument goes, relies on it.[16]  In delegating such authority, however, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.”[17]  Otherwise, executive action may stray too far from legislative command and thus unconstitutionally blur the line between executive and legislative power.

The validity of an administrative rule, therefore, rests on essentially three questions: (1) whether Congress has the authority itself to do what the agency has done; (2) whether Congress may delegate that authority to an agency; and (3) whether Congress, in fact, delegated that authority.[18]  The first question is a threshold matter asking whether “the federal government properly invoke[d] a constitutionally enumerated source of authority to regulate in [the] area . . . .”[19]  If so, courts look to whether the attempted delegation of power provides an “intelligible principle” to direct the agency.[20]  Too broad a grant of authority without sufficient guidance would violate Article I, Section 1 by taking from Congress, the branch closest and most responsive to the democratic process, “important choices of social policy.”[21]  And finally, courts must determine whether Congress, in fact, made a constitutional grant of authority allowing the agency to do what it purports to have the power to do.[22]  Put differently, Congress may have the inherent constitutional authority and may be able to delegate that authority, but did it?[23]  This last question, on which OSHA’s mandate ultimately failed,[24] implicates Chevron deference and the major questions doctrine.

When a statute speaks clearly on an issue, a court’s assessment ceases: it “must give effect to the unambiguously expressed intent of Congress,” regardless of an agency’s interpretation or position.[25]  Where, however, the statute is vague and does not “address[] the precise question at issue,” the court need only decide whether the agency’s decision represents “a permissible construction of the statute.”[26]  In other words, when a statue is ambiguous, the agency’s interpretation of a statute allowing it to make rules need only be “reasonable.”[27]  The underlying justification for such great deference is basically twofold: (1) ambiguity amounts to “an implicit delegation” of power to an “agency to fill the statutory gaps” left by Congress;[28] and (2) administrative agencies that Congress has tasked with administering the law have “expertise,” especially relative to judges, that better positions them to make rules on the regulatory matter.[29]

This inclination to defer to an agency’s “reasonable” interpretation goes at least as far back as the 1940s,[30] for example, when Justice Murphy explained that courts may invalidate an agency’s rule “only if it lacks any rational and statutory foundation.”[31]  Just like the nondelegation doctrine, however, Chevron is not without exception.  An agency’s exercise of substantial authority, even where the enabling statute at issue is ambiguous, may appropriately give courts pause before deciding that Congress has made “such an implicit delegation.”[32]  This is especially true of “question[s] of deep ‘economic and political significance.’”[33]  And the major questions doctrine represents that pause, or “reason to hesitate,”[34] before essentially rubber-stamping agency action.[35]  The idea is that if Congress truly assigned an agency such considerable power, it would have done so unmistakably.

On this doctrine, the Court stayed OSHA’s mandate, finding that challengers of the rule were likely to succeed on the merits that OSHA “lacked authority to impose the mandate.”[36]  Pointing to the rule’s “significant encroachment into the lives—and health—of a vast number of employees,” the Court reasoned that such an intrusion would need a clear congressional delegation of authority that “plainly authorizes the . . . mandate.”[37]  It went on to hold that no such authorization existed, explaining that the enabling statute “empowers [OSHA] to set workplace standards, not broad public health measures.”[38]

Echoing the majority opinion, Justice Gorsuch summarized the issue before the Court as one of “who decides” the major question.[39]  He further posited that the nondelegation and major questions doctrines, which are “closely related,” shed light on that question.[40]  He explained that both serve to keep lawmaking power “where Article I of the Constitution says it belongs—with the people’s elected representatives.”[41]  And the power to decide how to address the pandemic, as the law exists today, he argued, “rests with the States and Congress, not OSHA.”[42]

Ultimately, much remains to be seen as to what extent the Court will cut back on Chevron deference.  But there is little doubt (1) that a majority of the Court is sympathetic to the nondelegation and major questions doctrines; and (2) that cases challenging agency action will continue to arise.  In fact, West Virginia v. EPA, a case from the current Term, presents yet another opportunity for the Court to weigh in on the major questions doctrine.[43]  There, the Court will answer “[w]hether . . . Congress constitutionally authorized the [EPA] to issue significant rules—including those capable of reshaping the nation’s electricity grids . . . .”[44]  Plaintiffs have good reason to believe that the merits of their challenges look increasingly promising.  Nevertheless, having already used it twice this term to invalidate agency action, court watchers anticipate “[a] major battle of the ‘major questions’ doctrine” in this case and beyond.[45]


[1] 142 S. Ct. 661 (2022).

[2] Id. at 662.

[3] Id.

[4] Id. at 668 (Gorsuch, J., concurring) (“[T]he major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.”).

[5] See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (When deciding whether an agency’s interpretation of a statute is valid, courts look to (1) whether the statute at issue is ambiguous; and, if so, (2) whether the agency’s interpretation is reasonable.).  This standard of review is widely considered to be highly deferential to agencies in the rulemaking process.  See Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas, J., concurring) (“Chevron deference . . . forc[es] [judges] to abandon what they believe is ‘the best reading of an ambiguous statute’ in favor of an agency’s construction.  It thus wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive.”) (citations omitted).

[6] See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 668–69 (Gorsuch, J., concurring) (Justices Thomas and Alito joined Justice Gorsuch in emphasizing the important role the nondelegation and major questions doctrines play in “protect[ing] the separation of powers.”).

[7] U.S. Const. art. I, § 1.

[8] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[9] Field v. Clark, 143 U.S. 649, 692 (1892).

[10] Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980) (Rehnquist, J., concurring) (“The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception.”).

[11] U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed . . . .”).

[12] Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”).

[13] Indus. Union Dep’t, 448 U.S. at 673 (Rehnquist, J., concurring).

[14] The Federalist No. 48 (James Madison).

[15] Indus. Union Dep’t, 448 U.S. at 673–74 (Rehnquist, J., concurring) (“This Court . . . has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution.”).

[16] Id.

[17] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[18] See cases cited infra notes 19–22 and accompanying text.

[19] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring).

[20] Whitman, 531 U.S. at 472.

[21] Indus. Union Dep’t, 448 U.S. at 685–86 (Rehnquist, J., concurring) (noting that “the nondelegation doctrine serves three important functions” in (1) upholding democracy, (2) requiring guidance from Congress to the agency, and (3) providing standards against which courts may assess agency action).

[22] Worth noting here is the Supreme Court’s longstanding doctrine to avoid constitutional questions when a case may be resolved on lesser, often statutory, grounds.  See Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).  Accordingly, administrative law cases often turn on this third question to avoid the more substantial constitutional issue.  Taking the OSHA rule, for example, the Court held that Congress did not delegate the agency the authority to impose a vaccine-or-test requirement; it did not address whether Congress, and thus the federal government, has the inherent constitutional power to do so.  Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[23] See generally Advisory Opinions, Supreme Court Blocks Vaccine Mandate, The Dispatch, at 22:58 (Jan. 14, 2022), https://advisoryopinions.thedispatch.com/p/supreme-court-blocks-vaccine-mandate?s=r (explaining that, with respect to OSHA’s rule, “nondelegation is that Congress can’t give OSHA the power,” while “major question doctrine is that Congress didn’t give OSHA the power”).

[24] Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[25] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984).

[26] Id.

[27] Id. at 844. 

[28] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).

[29] Gonzalez v. Oregon, 545 U.S. 243, 266–67 (2006) (“Because . . . policymaking expertise account[s] in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” (quoting Martin v. OSHRC, 499 U.S. 144, 153 (1991))).

[30] The congressional delegation of power, however, is an issue as old at the republic.  See generally Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 281 (2021), https://columbialawreview.org/content/delegation-at-the-founding/ (“The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.”). Cf Ilan Wurman, Nondelegation at the Foudning, 130 Yale L.J. 1490, 1503 (2021), https://www.yalelawjournal.org/pdf/Wurman_d4111w2k.pdf (“In the first dozen years after Ratification, members of the Founding generation involved in public life and government repeatedly argued that Congress could not delegate its legislative power to the Executive.”).

[31] SEC v. Chenery Corp., 322 U.S. 194, 207 (1947).  

[32] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[33] King v. Burwell, 576 U.S. 473, 485–486 (2015) (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

[34] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[35] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (“We sometimes call this the major questions doctrine.”).

[36] Id. at 665–66.

[37] Id. at 665.

[38] Id. at 665.

[39] Id. at 667 (Gorsuch, J., concurring).

[40] Id. at 668 (Gorsuch, J., concurring).

[41] Id. at 668–69 (Gorsuch, J., concurring) (“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials” in an effort to deflect blame or shirk responsibility.).

[42] Id. at 670 (Gorsuch, J., concurring).

[43] Amy Howe, Greenhouse Gases and “Major Questions”: Justices to Hear Argument on EPA’s Power to Tackle Climate Change, SCOTUSblog (Feb. 27, 2022, 6:03 PM), https://www.scotusblog.com/2022/02/greenhouse-gases-and-major-questions-justices-to-hear-argument-on-epas-power-to-tackle-climate-change/.

[44] West Virginia v. Environmental Protection Agency, SCOTUSblog, https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/ (last visited April 12, 2022).

[45] Howe, supra note 43.

By Tanner Henson

Before diving into the legal challenges that surrounded North Carolina’s 2022 congressional redistricting, it is important to understand the recent history of redistricting in the state.  In 2010, a wave election year for North Carolina Republicans, the GOP stunned those who follow state politics by securing majorities in both houses of the General Assembly for the first time since 1898.[1]  Underscoring the enormity of this shift, the State Senate flipped from a Democratic majority of 30–20 to a Republican majority of 31–19, while the State House of Representatives flipped from a Democratic majority of 68–52 to a Republican majority of 68–52.[2]

Having endured severe Democratic gerrymanders at the congressional level,[3] following their wins in 2010, legislative Republicans redrew congressional maps to generate a 10–3 Republican advantage.[4]  Under the North Carolina Constitution, congressional districts are drawn by the General Assembly and are not subject to the governor’s veto.[5]  Partially because of this structure, the Democratic aligned National Redistricting Action Fund, which is closely associated with former Attorney General Eric Holder, has frequently brought suit to enjoin maps favoring the GOP.[6]  Under North Carolina statutes, when a congressional map is challenged in state court, a three-judge panel, composed of Wake County’s senior superior court judge and two additional superior court judges appointed by the chief justice of the North Carolina Supreme Court, have exclusive jurisdiction.[7]  Appeals from this panel go directly to the state supreme court.[8]

In 2018, North Carolina Republicans saw their congressional advantage eroded from 10–3 to 8–5, following a federal court ruling that Republican state legislators “had violated the First amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party.”[9]  Given these losses, legislative Republicans went into 2022 looking to regain the lost seats.[10]  Following the 2020 Census, buoyed by North Carolina’s increasing population, which resulted in the state gaining a fourteenth congressional seat,[11] legislative Republicans again drew congressional maps that would have generated a 10–4 majority, even in bad political climates for the GOP.[12]  Likely due to an ideological shift in the North Carolina Supreme Court, which now has a 4–3 Democratic majority,[13] this year, Democratic–backed groups sued the General Assembly in state court, seeking to have the maps enjoined, according to the process outlined above.[14]

In a 260-page order, a three-judge panel upheld the map, ruling that “[a]t no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”[15]  The panel viewed the constraints on redistricting enumerated in the North Carolina Constitution­—that members of Congress should represent nearly equal numbers of constituents, that districts should be contiguous, that maps should split as few counties as feasible, etc.—as exhaustive.[16]  The panel was unwilling to infer that the equal protection and free speech clauses of the state constitution somehow limited the legislature’s redistricting power; rather, the court wrote that “[i]f the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”[17]  The panel stressed that the judiciary should not involve itself in such a purely political question, writing, “[w]ere we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government.  Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”[18]

However, in an order dated February 14, the North Carolina Supreme Court reversed the lower court, writing that the congressional map was “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”[19]  The court reasoned that to comply with the constraints in the North Carolina Constitution, “the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation.”[20]  The court further explained that when the legislature enacts a map that makes it more difficult for an individual to join with likeminded voters to elect a governing majority, “the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”[21]

Following its order, the court allowed the General Assembly a second opportunity to draw less partisan maps and suspended candidate filing during that period.[22]  However, the legislature enacted another congressional map that would have likely resulted in a 10–4 Republican advantage.[23]  On February 23, the reviewing three-judge panel rejected the second map drawn by the legislature and adopted a map drawn by four non-partisan special masters, which will likely result in either an 8–6 Republican advantage, or an evenly divided delegation.[24] The state supreme court subsequently approved of this map and reopened candidate filing.[25]

On February 25, the Speaker of the North Carolina House of Representatives, Tim Moore, filed an emergency appeal in the United States Supreme Court seeking to overturn the court-enacted congressional map,[26] arguing that the court-imposed map “usurped the legislature’s power to regulate congressional elections under the U.S. Constitution.”[27]  The appeal—Moore v. Harper—was placed on the Court’s shadow docket.[28]

Moore asked the Court to expand its prohibition against judicial interference with redistricting to cover state courts.[29]  The theory underlying the Speaker’s appeal is known as the independent state legislature doctrine.[30]  The theory is grounded in Article I, Section 4 of the United States Constitution, which gives state legislatures the authority to determine the time, place, and manner of congressional elections.[31]  While this grant of authority has been viewed as giving legislative leaders the authority to set the ground rules for elections, it has not previously prevented state court process.[32]  However, Speaker Moore and legislative Republicans argued that the legislature’s power under the Constitution is supreme, thereby preventing state court interference, even in instances where a map might violate the state constitution.[33]  Particularly, Moore argued that the state supreme court interfered with legislative authority to regulate the manner of elections when it enacted a map drawn by its own special masters.[34]

For over one-hundred years, the Supreme Court has rejected this expansive view of the powers granted to state legislatures.[35]  In accord with this precedent, the Court rejected Moore’s appeal.[36]  However, fissures are starting to appear in what had seemed to be a settled area of law.  First, at least four of the Court’s current justices signaled some willingness to examine the independent state legislature doctrine during former President Trump’s challenges to the 2020 election.[37]  Second, while the Court’s decision in Moore left in place the court-imposed maps, it did so over a pointed dissent penned by Justice Alito, who was joined by Justices Thomas and Gorsuch.[38]  The dissenters noted that the “case present[ed] an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”[39]  Justice Alito stressed the importance of answering this question, before lamenting that the Court had missed another opportunity to do so.[40]

Justice Kavanaugh wrote separately, concurring in the denial of Moore’s application for a stay.[41]  While Kavanaugh ultimately voted with the majority, he did so only because he felt that it was “too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections[.]”[42]  Kavanaugh largely agreed with Justice Alito that Moore had “advanced serious arguments on the merits” and posed a question that will “keep arising until the Court definitively resolves it.”[43]

This is likely not the end of the road for the independent state legislature doctrine.  We now know at least four justices are willing to entertain the doctrine, enough to grant certiorari. Some “Court watchers” are predicting that the fate of the theory rests on the vote of Justice Amy Coney Barrett, the only justice who has been, as of yet, completely silent on the merits of the doctrine.[44] Time will tell.


[1] Tracy W. Kimbrell & R. Bruce Thompson II, 2010 North Carolina Election Analysis, Parker Poe (Nov. 3, 2010), https://www.parkerpoe.com/news/2010/11/2010-north-carolina-election-analysis

[2] Id.

[3] See Noah Tom Bullock, North Carolina’s Congressional Primaries Are a Mess Because of These Maps, NPR (Mar. 10, 2016, 5:00 AM), https://www.npr.org/2016/03/10/469548881/north-carolinas-congressional-primaries-are-a-mess-because-of-these-maps.  One district, the twelfth, looked reminiscent of a snake, running along I-95 for approximately 80 miles.  The district spanned from Charlotte to Winston-Salem, and at times was no wider than the interstate it tracked. 

[4] Scott Bland, Court Throws Out N.C. Congressional Map Before Election, Politico (Aug. 27, 2018, 7:54 PM), https://www.politico.com/story/2018/08/27/north-carolina-congressional-map-thrown-out-798609.

[5] N.C. Const. art. II, § 22(5).

[6] Patrick Rodenbush, Eric Holder and Marc Elias Discuss NRAF Redistricting Lawsuits, Nat’l Redistricting Action Fund (Apr. 27, 2021), https://redistrictingaction.org/news/eric-holder-and-marc-elias-discuss-nraf-redistricting-lawsuits.  

[7] Doug Spencer, All About Redistricting North Carolina, Loyola L. Sch., https://redistricting.lls.edu/state/north-carolina/?cycle=2020&level=Congress&startdate=2021-11-04 (last visited Mar. 23, 2022).  

[8] Id.

[9] Bland, supra note 4.

[10] See Michael Wines, North Carolina Court Says G.O.P. Political Maps Violate State Constitution, N.Y. Times (Feb. 4, 2022), https://www.nytimes.com/2022/02/04/us/north-carolina-redistricting-gerrymander-unconstitutional.html.

[11] Bill O’Neil, North Carolina Gains Seat in Congress After Census Results Released, WXII12 (Apr. 26, 2021, 8:43 PM), https://www.wxii12.com/article/north-carolina-census-results-additional-congress-seat/36255789.  

[12] Wines, supra note 10.

[13] Id.

[14] See supra notes 7–8 and accompanying text.

[15] Unanimous Three-Judge Panel Upholds N.C. Election Maps, Appeal Likely, Carolina Journal (Jan. 11, 2022, 5:43 PM), https://www.carolinajournal.com/news-article/unanimous-three-judge-panel-upholds-n-c-election-maps-appeal-likely/.  

[16] Id.

[17] Id.

[18] Id.

[19] Ethan Cohen, North Carolina Supreme Court Strikes Down Redistricting Maps, CNN Politics (Feb. 4, 2022, 7:59 PM), https://www.cnn.com/2022/02/04/politics/north-carolina-redistricting-struck-down/index.html.  

[20] Harper v. Hall, 868 S.E.2d 499, 546 (N.C. 2022).

[21] Id. at 544.

[22] Id. at 559.

[23] Michael Wines, North Carolina Court Imposes New District Map, Eliminating G.O.P Edge, N.Y. Times (Feb. 23, 2022), https://www.nytimes.com/2022/02/23/us/politics/north-carolina-maps-democrats.html.  

[24] Id.

[25] Id.

[26] What Redistricting Looks Like in Every State, FiveThirtyEight (Mar. 22, 2022, 4:50 PM), https://projects.fivethirtyeight.com/redistricting-2022-maps/north-carolina/.  

[27] Id.

[28] Moore v. Harper, SCOTUSblog, https://www.scotusblog.com/case-files/cases/moore-v-harper/ (last visited Mar. 7, 2022).

[29] Adam Liptak, Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania, N.Y. Times (Mar. 7, 2022), https://www.nytimes.com/2022/03/07/us/supreme-court-voting-maps.html (arguing “that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play”).

[30] Richard L. Hasan, North Carolina Republicans Ask SCOTUS to Decimate Voting Rights in Every State, Slate (Feb. 25, 2022, 7:32 PM), https://slate.com/news-and-politics/2022/02/north-carolina-republicans-scotus-gerrymandeering-assault.html.  

[31] U.S. Const. art. I, § 4.

[32] Hasan, supra note 30.

[33] Id.

[34] Rusty Jacobs, Supreme Court Filing in NC Redistricting Matter Poses Thorny Questions for Conservatives, WFAE 90.7 (Feb. 28, 2022, 5:03 PM), https://www.wfae.org/politics/2022-02-28/supreme-court-filing-in-n-c-redistricting-matter-poses-thorny-questions-for-conservatives.  

[35] Hasan, supra note 30.

[36] Liptak, supra note 29.

[37] Id.

[38] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Alito, J., dissenting), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[39] Id. s

[40] Id.

[41] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Kavanaugh, J., concurring), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.

[42] Id. at 2.

[43] Id. at 1.

[44] Ian Millhiser, The Fate of American Elections Is in Amy Coney Barrett’s Hands, Vox (Mar. 4, 2022, 8:00 AM), https://www.vox.com/22958543/supreme-court-gerrymandering-redistricting-north-carolina-pennsylvania-moore-toth-amy-coney-barrett.  

By Jonathon Beatty

What happens when a public-school employee’s free speech and free exercise rights run contrary to the Establishment Clause of the First Amendment?[1]  The Supreme Court will answer that question in Kennedy v. Bremerton School District[2] and shed light on the intersection of the Free Speech, Free Exercise, and Establishment Clauses.[3]  Specifically, the Court granted certiorari on two questions: (1) “[w]hether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection”; and (2) “whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.”[4]

Bremerton School District (“BSD”) employed Kennedy as a football coach.[5]  A practicing Christian, he felt an obligation to “give thanks through prayer, at the end of each game.”[6]  He would kneel on the 50-yard line, where spectators could observe, and say a prayer alone.[7]  Over time, students began to join him, eventually growing to “include the majority of the team.”[8]  Although he never explicitly or implicitly required participation, BSD ordered Kennedy to stop for fear that, as a government employee, he was violating the Establishment Clause,[9] which requires government neutrality toward religion.[10]  This culminated in a recommendation against his rehiring due to his “fail[ure] to follow district policy.”[11]

Subsequently, Kennedy filed suit, arguing that BSD had violated his free speech and free exercise rights.[12]  The district court rejected his claims, holding that “BSD’s actions were justified due to the risk of an Establishment Clause violation.”[13]  The Ninth Circuit affirmed, agreeing “that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.”[14]

The free speech right of public employees is a complex legal issue.  As many questions in the law do, it requires striking a balance, this time between the right of the employee to be free from government censorship and the right of the government to ensure its employees act consistent with their duties, including constitutional requirements.  The Supreme Court has made clear, for example, that “[t]he problem . . . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[15]  Put differently, their employment necessarily curtails their First Amendment rights in order for them to do their job correctly.  It involves, like many aspects of life, a tradeoff. But striking the right balance is a difficult task.

Start with the free speech rights of public employees.  It is settled law that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”[16]  State employees have free speech rights, and the use of those rights may not form the basis for which he or she is terminated or otherwise denied employment.[17]  In Pickering v. Board of Education,[18] for example, the Court held unconstitutional the termination of a teacher who overtly criticized the school board for its allocation of funding.[19]  The basis for the teacher’s dismissal ran afoul of democratic norms  epitomizing self-government for which “free and open debate is vital.”[20]  Teachers do not forfeit their rights “at the schoolhouse gate.”[21]

The extent of an employee’s “interest in freedom of expression,” however, is far from absolute and depends on the context in which the right was exercised.  In Garcetti v. Ceballos, for instance, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[22]  As any private employer could, a government employer can mandate or prohibit certain expression within reason.[23]

The idea is that the required or forbidden expression is the product of the employment, not of the employee’s private life and thus the liberties that attach.[24]  As the Court puts it, “It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”[25]  The crucial question is whether the public employee is acting as a citizen or in his or her official capacity.  If the former, the Court has “unequivocally rejected” the notion “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens.”[26]  And if the latter, employers of all kinds may control the speech of “an employee in his or her professional capacity,” because “[o]fficial communications have official consequences” that impact “the employer’s mission.”[27]

Moreover, the free exercise rights of public employees are equally complex and involve a similar tradeoff between citizen liberty and employer interest.  This time, however, the conflict lies directly in the First Amendment, which prohibits the government’s “respecting an establishment of religion” while simultaneously guaranteeing to citizens “the free exercise thereof.”[28]  The question is at which point a government employee’s “free exercise” constitutes the government’s “respecting an establishment of religion.”

The Court has held “that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”[29]  Religion may not excuse citizens from complying with a neutral law that applies generally to everyone.[30]  Otherwise, “professed doctrines of religious belief [would become] superior to the law of the land . . . and . . . permit every citizen to become a law unto himself.”[31]  The Free Exercise Clause, therefore, applies to a non-neutral law that targets expression because it is religious, not simply because the expression falls within the law’s purview.[32]

Even when the government targets religious expression because it is religious, a Free Exercise claim does not necessarily prevail.  The Court has held that “a state interest in avoiding an Establishment Clause violation ‘may be characterized as compelling,’ and therefore may justify content-based discrimination.”[33]  As BSD argued in Kennedy, allowing Kennedy’s prayers to continue as is would constitute government action sufficient to violate the Establishment Clause and thus justify the prohibition on Kennedy’s conduct.[34]  Nonetheless, the Court has underscored on numerous occasions that the mere presence of religious conduct on public-school property is not under all circumstances sufficient to violate the Establishment Clause.[35]

Therefore, the stage is set for the Court.  It will decide (1) whether the speech falls within Kennedy’s “professional capacity” and thus lacks First Amendment protection; and (2) whether, assuming it does not, BSD nevertheless has satisfied strict scrutiny in avoiding an Establishment Clause violation by means “narrowly tailored to advance that [compelling] interest.”[36]  Perhaps Kennedy was acting as a citizen.  And if he was, perhaps this is one of those circumstances where there was no state action sufficient to constitute an Establishment Clause violation.  The Court will soon settle the issue.


[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”).

[2] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021), cert. granted, 142 S. Ct. 857 (2022).

[3] U.S. Const. amend. I.

[4] Kennedy v. Bremerton School District, SCOTUSblog, https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/ (last visited Feb. 22, 2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 857 (2022) (granting certiorari).

[5] Kennedy, 991 F.3d at 1010.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 1011.

[10] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (“[W]e have held that ‘a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.’” (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995))) (alteration in original).

[11] Kennedy, 991 F.3d at 1014.

[12] Id.

[13] Id.

[14] Id. at 1022–23.

[15] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[16] Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)).

[17] Id.

[18] 391 U.S. 563.

[19] Id. at 566–67.

[20] Pickering, 391 U.S. at 571–72; see Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“For speech concerning public affairs is more than self-expression; it is the essence of self-government.”).

[21] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[22] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[23] Id. at 418 (“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”).

[24] Id. at 421–22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”).

[25] Id. at 422.

[26] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[27] Garcetti, 547 U.S. at 422–23.

[28] U.S. Const. amend. I.

[29] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Emp. Div. v. Smith, 494 U.S. 872 (1990)).

[30] See Smith, 494 U.S at 878–79 (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”).

[31] Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166–67 (1879)).

[32] Church of Lukumi Babalu Aye, 508 U.S. at 532 (“[T]he protections of the Free Exercise Clause pertain if the law at issue . . . regulates . . . conduct because it is undertaken for religious reasons.”).

[33] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)).

[34] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1009 (2021).

[35] See Good News Club, 533 U.S. at 115 (“[W]e have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises . . . .”).

[36] Church of Lukumi Babalu Aye, 508 U.S. at 531–32.


Post image by Phil Roeder on Flickr

By: Tanner Henson 

In 1970, Congress enacted the Occupational Safety and Health Act (“OSH Act” or “the Act”), a sweeping piece of legislation, aimed at “assur[ing] so far as possible every working man and woman in the Nation safe and healthful working conditions[.]”[1] To enforce the new legislation, Congress created a new government agency, the Occupational Safety and Health Administration (“OSHA”),[2] under the authority of the Secretary of Labor.[3]

Under the OSH Act, OSHA primarily seeks to protect the American workforce by promulgating specific standards through its formal rulemaking process, either “on its own initiative or in response to petitions submitted to the agency by various government agencies, the public, or employer and employee groups.”[4] This is traditionally a time-consuming process. Between 1981 and 2010, the Congressional Research Service found that on average, ninety-three months elapsed between OSHA beginning formal consideration of a specific standard and its promulgation.[5] The same study further indicated that this average is generous, as it did not include time spent preliminary to formal proposal of the rule, which often includes years “developing the idea for the standard and meeting with stakeholders.” [6] It also did not include the time spent in judicial review.[7] When these time periods were included, the Congressional Research Service found that it was not uncommon for 138 months to elapse between the inception of the idea behind the specific standard and its enactment.[8]

Given this onerous process, OSHA cannot issue specific standards for every hazard the working public might encounter. Aware of this reality, the drafters of the Act included a useful catchall­—the general duty clause—which provides that at a minimum, each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]”[9] However, to establish a general duty clause violation, the Secretary of Labor must establish that “(1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) feasible and effective means existed to materially reduce the hazard.”[10] While the general duty clause serves a necessary function—it allows OSHA to hold businesses accountable for harms caused by known hazards not covered by a specific standard—in practice, the Secretary is most often successful in proving these elements where death or serious injury has already occurred,[11] which hampers its effectiveness.

As the formal rulemaking process is time-consuming,[12] and the general duty clause lends itself to retroactive applications,[13] the Congressional drafters of the OSH Act included a seldom mentioned alternative, which allows the Secretary of Labor to promulgate an Emergency Temporary Standard (“ETS”) with immediate effect, “if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”[14] However, in its fifty year history, OSHA has issued just ten emergency temporary standards, six of which have been challenged in the courts, with only one surviving judicial review.[15] In fact, until November, OSHA had not issued an ETS since 1983,[16] when the Fifth Circuit invalidated the administration’s ETS seeking to decrease the acceptable levels of asbestos exposure in the workplace.[17]

On November 5, 2021, in response to an order from President Biden,[18] OSHA did what it had not done in nearly forty years;[19] it promulgated an ETS mandating that employers with more than 100 employees either require employees to undergo weekly COVID-19 testing or become fully vaccinated by January 4, 2022 (“ the mandate”).[20] However, two days after OSHA enacted its ETS, the Fifth Circuit stayed the mandate’s enforcement “pending briefing and expedited judicial review.”[21] After review, the court reaffirmed its initial stay,[22] halting enforcement across the nation, holding that the petitioners were likely to succeed on the merits as the OSH Act did not confer on OSHA constitutional authority “to make sweeping pronouncements on matters of public health.”[23] The court wrote further, entertaining what it called “the dubious assumption that the mandate does pass constitutional muster[,]”[24] noting that the mandate was improperly tailored.[25] Specifically, the court wrote that the mandate was “both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse)[,]”[26] as well as underinclusive, as the mandate purports to “save employees with 99 or more coworkers from a ‘grave danger’ in the workplace, while making no attempt to shield employees with 98 or fewer coworkers form the very same threat.”[27] The court further questioned whether such an ETS is needed, as the “entire globe” has endured the “emergency” for nearly two years.[28]

Following the Fifth Circuit’s ruling on November 16, “the Judicial Panel on Multidistrict Litigation consolidated the cases challenging the ETS.”[29] When this occurred, the panel conducted a random lottery involving all U.S. Courts of Appeal and transferred the consolidated case to the Sixth Circuit,[30] where a divided panel reinstated the mandate,[31] holding “that OSHA’s authority includes protection against infectious diseases . . . .”[32] The court further stated that “it makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal.”[33] The court took particular issue with the Fifth Circuit’s skepticism regarding the emergency, providing that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”[34]

After the Sixth Circuit’s ruling, it appeared briefly that the mandate would go into effect on January 10;[35] however, on December 22, the Supreme Court announced that it would hold a special session on January 7, 2022 to hear arguments in a challenge to the mandate.[36] During those arguments, the Court’s three liberals signaled support for the mandate, with Justice Breyer stating “[t]here are 750,000 people who got this yesterday. Hospitals are full to overflowing. There is a problem. It seems to me that every minute these things are not in effect, thousands more people are getting this disease[.]”[37] However, given the Court’s current conservative majority, for the liberal justices to prevail, the vote of Chief Justice Roberts is of practical necessity.[38] During arguments, the Chief Justice signaled his ultimate disapproval of the mandate in a troubling back-and-forth for its proponents, stating specially, “[i]t sounds like the sort of thing that states will be responding to or should be or—and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone[.]”[39]

Given the tenor of oral argument, it came as little surprise that on January 13, the Supreme Court reversed the Sixth Circuit, granting the petitioners’ application to stay enforcement of the mandate.[40] The Court found that the petitioners were likely to succeed on the merits of their case, agreeing with the Fifth Circuit and characterizing the mandate as a “blunt instrument” that “draws no distinctions based on industry or risk of exposure to COVID-19.”[41] The Court, however, also found “that the Secretary lacked authority to impose the mandate.”[42] Noting that OSHA can only exercise power that Congress provides by statute, the Court analyzed the language of the ETS statute and concluded that it empowered OSHA “to set workplace safety standards, not broad public health measures.”[43] The Court further took issue with the characterization of COVID as a work-related danger, noting that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.”[44] The Court reasoned, that the risk presented by COVID-19 is little different than “the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazard of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”[45]

Whatever the Courts ultimate ruling on the merits, its opinion granting petitioners’ request for an emergency stay both clarifies the meaning of the terms “workplace” and “occupational hazard,” as they appear in the statute, as well as provides a rare glimpse into the confines of OSHA’s emergency rulemaking authority.


[1] 29 U.S.C. § 651(b).

[2] About OSHA, https://www.osha.gov/aboutosha (last visited Jan. 13, 2022).

[3] 29 U.S.C. § 652(1).

[4] Scott D. Szymendera, Cong. Rsch. Serv., R46288, Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers 1 (2022).

[5] Id. at 3.

[6] Id.

[7] Id.

[8] Id.

[9] 29 U.S.C. § 654.

[10] Michael A. Logan, Regulation of Workplace Violence Under OSHA’s “General Duty” Clause, Kane Russell Coleman Logan (May 22, 2019), https://www.krcl.com/insights/regulation-of-workplace-violence-under-oshas-general-duty-clause.

[11] See Opinion at 22, Secretary of Labor v. Integra Health Management, Inc., (2019) (No. 13–1124), https://www.chamberlitigation.com/sites/default/files/cases/files/19191919/Opinion%20–%20Secretary%20of%20Labor%20v.%20Integra%20Health%20Management%2C%20Inc.%20%28Occupational%20Safety%20and%20Health%20%28OSH%29%20Review%20Commission%29_0.PDF (finding a violation of the general duty clause where a healthcare service coordinator was stabbed to death by a mentally unstable client). 

[12] See supra notes 4–8.

[13] See supra notes 9–11.

[14] 29 U.S.C. § 655(c)(1).

[15] BST Holdings, LLC v. Occupational Safety and Health Admin., U.S. Dep’t of Lab., 17 F.4th 604, 609 (5th Cir. 2021).

[16] Syzmendera, supra note 4, at 1.

[17] Asbestos Information Ass’n/North Am. v. Occupational Safety and Health Admin., 727 F.2d 415, 425–27 (5th Cir. 1984).

[18] Press Release, The White House, New OSHA and CMS Rules Mean Two-Thirds of All Workers Now Covered by Vaccination Rules (Nov. 4, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/.

[19] See supra note 16.

[20] 29 C.F.R. § 1910.501(m) (2021).

[21] BST Holdings, 17 F.4th at 609.

[22] Id.

[23] Id. at 611 (citing Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2488 (2021)).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Sixth Circuit Lifts Stay of OSHA Emergency Vaccine Mandate For Large Employers, McGuireWoods (Dec. 19, 2021), https://www.mcguirewoods.com/client-resources/Alerts/2021/12/sixth-circuit-lifts-stay-of-osha-emergency-vaccine-mandate-for-large-employers.

[30] Id.

[31] In re. MCP No. 165, No. 21–4027, slip op. at 37 (6th Cir. Dec. 17, 2021).

[32] Id. at 36.

[33] Id. at 13–14.

[34] Id. at 25.

[35] Lisa Nagele-Piazza, OSHA’s Vaccine-Or-Testing Rule is Back, Unless Supreme Court Says Otherwise, SHRM (Dec. 20, 2021), https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/sixth-circuit-osha-ets.aspx.

[36] Stuart M. Gerson & Traycee E. Klein, Supreme Court Grants Rare Hearing On Stays In Vaccine Mandate Cases, Ntl. L. Rev. (Dec. 29, 2021), https://www.natlawreview.com/article/supreme-court-grants-rare-hearing-stays-vaccine-mandate-cases.

[37] Megan Leonhardt, The Supreme Court Just Signaled It Could Block Biden’s Nationwide Vaccine Mandate, Fortune (Jan. 7, 2020, 4:43 PM), https://fortune.com/2022/01/07/supreme-court-biden-vaccine-mandate/.

[38] See Amelia Thomson-DeVeaux, Roberts is the New Swing Justice. That Doesn’t Mean He’s Becoming More Liberal, FiveThirtyEight (July 16, 2020), https://fivethirtyeight.com/features/roberts-is-the-new-swing-justice-that-doesnt-mean-hes-becoming-more-liberal/.

[39] Amy Davidson Sorkin, Vaccine Mandates Have a Bad Day at the Supreme Court, Atl. (Jan. 8, 2022), https://www.newyorker.com/news/daily-comment/vaccine-mandates-have-a-bad-day-at-the-supreme-court.

[40] Nat’l Fed’n of Indep. Bus. v. Dept. of Lab, Occupational Safety and Health Admin., Nos. 21A244 and 21A247, slip op. at 9 (U.S. Jan. 13, 2022).

[41] Id. at 3.

[42] Id. at 5.

[43] Id. at 6.

[44] Id.

[45] Id. at 6–7.

By: Joseph C. Johnson

On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1]  Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2]  Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3]  However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4]  On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment.  So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?

In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5]  There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6]  He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7]  In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8]  The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9]  This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]

To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11]  Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12]  Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13]  Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14]  This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15]  The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16]  This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17]  The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18] 

The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19]  On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20]  As such, a rule regarding public displays of expletives is further illuminated.  So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.


[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).

[2] Id. at *4, *19–21.

[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).

[4] Id. at 26.

[5] Id. at 19–21.

[6] Id. at 16.

[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).

[8] Id. at 20.

[9] Id. at 26. 

[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM),  https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.

[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist.  LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).

[12] Id. at *2.  See Fla. Stat. § 847.011.

[13] Webb v. English, 2021 U.S. Dist.  LEXIS 181927, at *3.

[14] Id. at *4.

[15] Id. at *14–21.

[16] Id. at *18.

[17] Id. at *19–22.

[18] Id. at *18–26.

[19] Id. at *26.

[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).

By Jacob Winton

On July 20, 2021, Senators Bernie Sanders (I-Vt.), Chris Murphy (D-Conn.), and Mike Lee (R-Utah) introduced the National Security Powers Act of 2021[1] (“NSPA”), a bipartisan bid to reign in the war powers of the Executive Branch.  The bill, which would impose substantial limitations on presidential power,[2] would allow “Congress [] to reclaim its rightful role as co-equal branch on matters of war and national security” and “make sure that there is a full, open and public debate on all major national security decisions” according to Senator Murphy.[3]  The effort seeks to reverse what many view as the “steady erosion of Congress’s power to prevent, confine, or even direct military action and [the] steady accretion of executive discretion and control.”[4]  This shift in the balance of power has been driven in large part by the “Presidentialist” perspective, an approach to presidential war power in which the executive is “constrained in its ability to engage military force abroad only by Congress’s appropriations and impeachment powers.”[5] 

But the historical record leaves little doubt as to who the framers of the Constitution believed should decide when and where to wage war.[6]  Pursuant to the Constitution, the President directs the armed forces as commander in chief,[7]  but “Congress alone has the power to declare war and fund military operations.”[8]  Prior to World War II, the branches of government adhered closely to these guidelines—American military action was routinely preceded by a formal declaration, issued by Congress in response to a request from the President, authorizing the President to engage in military operations against a foreign nation.[9]  However, despite once being deemed a “necessary prerequisite” to military action, “declarations have fallen into disuse” since World War II.[10]  More recently, presidents have become increasingly comfortable engaging in military action abroad without direct congressional approval.[11]

The last formal declaration of war in the United States was issued in 1942 against Romania.[12]  Since then, Congress’s role has withered as the system evolved from a collaborative decision-making process between the Legislative and Executive Branches into “an interagency process subordinating military force within a foreign policy system under the Executive Branch.”[13]  So far, Congress has failed to muster a response sufficient to rebuke the encroachment of the Executive Branch.  For example, after the war effort in Vietnam failed, Congress overrode President Nixon’s veto to pass the War Powers Resolution of 1973[14] under the mistaken belief that it would restore “collective legislative-executive judgment in the war-making process.”[15]  Ultimately, however, the effect of the War Powers Resolution “has been minimal.”[16]

During the 21st century, the accumulation of executive war power has accelerated.[17]  Following the 9/11 terrorist attacks, President George W. Bush’s approach to executive war power was rooted in the “assert[ions] of broad, uncheckable power” by former Presidents Nixon and Reagan.[18]  The Bush White House provided fertile ground for the unitary executive theory, an expansive view of executive power “that had been percolating in the conservative movement for years” and was brought to national prominence in large part by Vice President Dick Cheney.[19] In the aftermath of 9/11, the theory became a “convenient tool seized upon in a time of crisis”[20] to justify unilateral presidential military initiatives that flouted international treaties, violated domestic law, and “led to a widespread government policy and practice of torture.”[21]

Despite the disapproval of both the public and the Supreme Court,[22] the continuing exercise of military power without express authorization has “normalized the unbalanced relationship between Congress and the Executive.”[23]  Modern presidents have resorted to the circular and self-strengthening argument that military action in the absence of congressional approval should be “accepted by mere virtue of past practice.”[24]  In 2011, for instance, the Obama administration Department of Justice qualified President Obama’s use of military force in Libya[25] without congressional approval as constitutional by insisting that “the historical practice of presidential military action without congressional approval precludes any suggestion that Congress’s authority to declare war covers every military engagement, however limited, that the President initiates.”[26]  Moreover, in the wake of Congress’s response to 9/11, presidents have used the Authorizations for the Use of Military Force passed in 2001[27] and 2002[28] to justify military action years later “against terrorist organizations that did not exist at the time of the 9/11 attacks, are active in regions far removed from Al Qaeda’s areas of operation, and that have no known affiliation with Al Qaeda,” effectively bypassing Congress altogether.[29]

It is against this backdrop that Senators Sanders, Murphy, and Lee have introduced the NSPA.  While the Presidentialists welcome the expansion of executive war power, the NSPA represents the concern that unchecked executive power poses a grave threat to our constitutional system.[30]  On a practical level, Senator Lee explained that the NSPA meets an urgent need to restore accountability because “America’s global standing, treasure, and brave service members are being lost in conflict’s the people’s legislators never debated.”[31]  This latest proposal may or may not become law, but unless Congress can reclaim its constitutional role, the growing concentration of war powers in the executive, a danger the framers were keenly aware of, threatens to become a permanent feature of our government.


[1] S. 2391, 117th Cong. (2021).

[2] Notably, the NSPA would repeal all existing war authorizations and defund any military operation not explicitly greenlit by Congress, make it easier for Congress to reverse presidential foreign policy decisions, and roll back presidential access to emergency national security powers. Andrew Desiderio, Unlikely Senate Alliance Aims to Claw Back Congress’ Foreign Policy Powers ‘Before It’s too Late’, Politico (July 20, 2021, 6:00 A.M.), https://www.politico.com/news/2021/07/20/bipartisan-senators-congress-war-powers-500214.

[3] Id.

[4] Mark E. Brandon, War and the American Constitutional Order, 56 Vand. L. Rev. 1815, 1847 (2003).

[5] Jake Novack, Note, Exploring Executive War Power: The Rise and Reign of the Presidentialist Interpretation, 53 Cal. W. L. Rev. 247, 249 (2017).

[6] See, e.g., Ronald J. Sievert, Campbell v. Clinton and the Continuing Effort to Reassert Congress’ Predominant Constitutional Authority to Commence, or Prevent, War, 105 Dick. L. Rev. 157, 159 (2001) (citing debate transcript from Constitutional Convention’s Committee on Drafting to demonstrate broad agreement that the executive cannot “commence war”); see also The Federalist No. 69 at 465 (Alexander Hamilton) (Cook ed. 1961) (distinguishing the power of the President as “much inferior” to that of the British King because it does not extend to “the declaring of war and to the raising and regulating of the fleets and armies”).

[7] U.S. Const. art. II, § 2.

[8] Donald A. Dechert, III, Note, Perpetual Warfare: Proposing a New American Constitutional Amendment for the War Powers, 52 Val. U. L. Rev. 457, 482 (2018); see also U.S. Const. art. I, § 8, cl. 18.

[9] Id. at 461–62; see also, e.g., Joint Resolution of December 12, 1941, Pub. L. No. 77-331, 55 Stat. 796 (formally declaring war on Germany during World War II).

[10] Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications 23 (Apr. 18, 2014).

[11] See, e.g., Novack, supra note 5, at 249–50 (“[T]he Obama Administration’s military actions in Libya and operations against al-Qa’ida (including its affiliates, associated forces, and successors) in Yemen, Somalia, Iraq, and Syria occurred and continue without explicit congressional authorization”).

[12] Elsea & Weed, supra note 10, at 4.

[13] Dechert, supra note 8, at 462.

[14] 50 U.S.C. §§ 1541–48.

[15] Michael J. Glennon, The War Powers Resolution Ten Years Later: More Politics than Law, 78 Am. J. Int’l L. 571, 571 (1984).

[16] Brandon, supra note 4, at 1855.  Since its passage, the War Powers Resolution “has been ignored or flouted far more frequently than followed” and even when presidents have complied with its requirements, “they have sometimes done so without conceding the existence of a constitutional obligation.” Id.

[17] See, e.g., Richard E. Levy, Presidential Power in the Obama and Trump Administrations, 87 J. Kan. Bar Ass’n 46, 47 (2018) (“One consistent trend since the time of the founding has been the expansion of presidential authority.  In recent years, this trend has accelerated at an exponential rate, propelled by the war on terror and the dysfunction of our hyperpartisan Congress”).

[18] Erwin Chemerinsky, The Assault on the Constitution: Executive Power and the War on Terrorism, 40 U.C. Davis L. Rev. 1, 7 (2006).

[19] Novack, supra note 5, at 268. Before ascending to the vice presidency, Cheney offered a “vociferous defense of executive prerogative” as Wyoming’s senior representative in the House in response to “outright congressional fury” at the Nixon administration for its defiance of congressional mandates during the Iran-Contra affair. Id.  Later, as Vice President, Cheney “staffed the White House with individuals who shared his belief that the executive branch was aptly suited for expansive power,” thus setting the stage for the full embrace of the unitary executive theory in the aftermath of 9/11. Id. at 271.

[20] Id. at 272.

[21] Michael P. Scharf, The Torture Lawyers, 20 Duke J. Compar. & Int’l L. 389, 391 (2010).

[22] See, e.g., Gregory P. Noone, The War Powers Resolution and Public Opinion, 45 Case Western Rsrv. J. Int’l L. 145, 152–54 (2012) (detailing decades of public opinion polling demonstrating broad agreement that congressional approval should be required for the President to take military action); see also, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (rebuking the Bush administration’s assertion of the authority to deprive detainees at Guantanamo Bay of access to federal courts as an attempt to “turn our system of checks and balances on its head”).

[23] Novack, supra note 5, at 272.

[24] Id. at 272–73.

[25] President Obama has since stated that our military action in Libya “didn’t work” and that “failing to plan for the day after” was his worst mistake as president. Dominic Tierney, The Legacy of Obama’s ‘Worst Mistake’, The Atlantic (Apr. 15, 2016), https://www.theatlantic.com/international/archive/2016/04/obamas-worst-mistake-libya/478461/.

[26] Authority to Use Military Force in Libya, 35 Op. O.L.C. 20, 31 (2011).

[27] See Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (authorizing military action against those responsible for the 9/11 terrorist attacks).

[28] See Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498.  

[29] Levy, supra note 17, at 47.

[30] Chemerinsky, supra note 18, at 16 (“The framers of the Constitution feared executive power the most”).

[31] Desiderio, supra note 2.


Post image by Daniel Mennerich on Flickr

By Grace Koppenheffer

When systems work as expected, people generally are content to let such systems work in the background—the shadows—without needing to know the details. When those same systems start producing different and unexpected results, however, people want to shine a light into the shadows to understand, diagnose, and if needed, fix the system.

The concept of the shadow docket has been around since the Supreme Court’s inception,[1] but the term itself was first coined in 2015 by William Baude to refer to the Court’s “range of orders and summary decisions that defy its normal procedural regularity.”[2] Unlike the more well-known process of the “merits docket,” where the Court writes an opinion after multiple rounds of briefing and oral arguments, rulings from the shadow docket almost always come as orders from either a single Justice or the Court.[3] These orders usually come after only one round, or less, of briefing, do not contain a majority opinion nor reasoning, and most of the time provide no record of voting.[4] Because these orders can be handed down at any time—even in the middle of the night—and lack transparency, “these rulings come both literally and figuratively in the shadows.”[5]

Although the Court issues thousands of orders via the shadow docket each year, until recently, many did not pay much attention to the shadow docket because it was meant to resolve “unremarkable scenarios.”[6] For example, the Court has utilized the shadow docket to issue uncontentious decisions such as denying uncontroversial petitions for certiorari, denying petitions that clearly did not meet the criteria for emergency relief, granting additional time for parties to file briefs, and other procedures related to the Court.[7] Recently, however, the shadow docket has faced increased scrutiny focusing on a relatively small subset of cases that employ the shadow docket to seek emergency relief.

Although the Supreme Court has the power to grant emergency relief through issuing injunctions, and issuing and lifting stays,[8] the Court recognizes that these are “drastic and extraordinary remedies,”[9] which should be granted only when “adequate relief cannot be obtained in any other form or from any other court.”[10] In order to circumvent the typical appeals process and petition the Court for emergency relief, petitioners must show that “irreparable harm [will] result from the denial of a stay.”[11]

Congress has begun investigating the Court’s emergency relief orders because of the increased number and variety of cases for such relief.[12] Between 2001 and 2017, the Department of Justice only filed eight applications for emergency relief.[13] During the four years of the Trump administration, however, the Department of Justice filed forty-one such petitions, twenty-four of which were granted in full, and four in part.[14]

Additionally, the types of cases on which the Court has rendered decisions through the shadow docket has not only broadened, but also has become more divisive.[15] Although there were some controversial rulings via the shadow docket in the past, most of these decisions concerned elections and the death penalty.[16] In the last few years, shadow docket decisions have expanded to include cases regarding the border wall,[17] gathering restrictions due to COVID-19,[18] federal executions,[19] abortion bans,[20] eviction moratoriums,[21] and immigration policy regarding asylum seekers.[22] The Justices, like the public, have also been divided on these controversial issues. Of the eight emergency relief applications filed by the Justice Department between 2001 and 2017, only one had a dissent.[23] Conversely, in twenty-seven of the thirty-six[24] orders regarding the emergency relief applications filed during the Trump administration, at least one Justice publicly dissented.[25] Moreover, during the October 2019 Term, the number of 5-4 decisions from the shadow docket was almost equal to the number of 5-4 decisions on the merits docket.[26]

A major criticism of the recent orders the Court has issued via the shadow docket is that they are inconsistent with one another and with past precedent, leading some to view the decisions as advancing policy rather than the law.[27] In some cases, the Court has changed substantive law through emergency relief orders, articulating new constitutional rules to support such relief.[28] For example, in Tandon v. Newsom,[29] the Court issued an emergency injunction against a California law that prohibited in-home gatherings, including Bible studies and prayer meetings.[30] In its order, the Court adopted an expansive view of the First Amendment’s Free Exercise Clause which “no prior majority opinion had ever adopted. . . .”[31]

Conversely, in other cases, the Court has refused to grant emergency relief for constitutional rights. For instance, in Whole Woman’s Health v. Jackson,[32] the Court denied injunctive relief regarding a Texas law banning abortions after a heartbeat is detected, which is usually around six weeks.[33] Although the Court explicitly stated the “order [was] not based on any conclusion about the constitutionality of Texas’s law,”[34] such a denial of injunction for “an obviously unconstitutional abortion regulation,”[35] defies precedent in such situations and led some to conclude that “the [C]ourt is advancing a partisan political agenda and not a legal one.”[36] When the Court uses the shadow docket to create a new interpretation of the First Amendment in one case but then refuses to utilize it to extend protection to an existing fundamental right in another, critics worry that such inconsistencies undermine the legitimacy of the Court.[37]

There are myriad problems with the recent shadow docket emergency relief cases. For one, the timing of these decisions, which can be handed down late at night,[38] and the usual absence of knowing which way Justices voted create opacity in the system.[39] Moreover, shadow docket orders often do not provide any reasoning for the decisions they hand down, making “it impossible to scrutinize the merits of the Court’s action in far too many of these cases.”[40] Due to this lack of reasoning, it is challenging for lower courts to know how to apply these decisions in subsequent cases, even though such orders are now meant to be treated as precedent.[41] Additionally, other interested parties do not provide input and the Court does not have the benefit of hearing oral arguments.[42] All of these issues ultimately culminate in reducing the Court’s legitimacy.[43]

In her dissent in Whole Woman’s Health, Justice Kagan denounced the majority’s decision stating, “[it] is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”[44] The Court’s new approach to emergency relief petitions via the shadow docket has garnered greater scrutiny of this system, shining a light into the shadowy process. Whether this new light allows the shadow docket decision making to continue, or whether Congress or the Court itself will attempt to recalibrate the system, remains to be seen.


[1] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Int. of the H. Comm. on the Judiciary, 117th Cong. 1 (2021) (statement of Stephen I. Vladeck, Charles Alan Wright Chair Fed. Cts., U. Tex. Sch. L.), https://www.justsecurity.org/wp-content/uploads/2021/02/Vladeck-Shadow-Docket-Testimony-02-18-2021.pdf.

[2] William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015).

[3] The Supreme Court’s Shadow Docket, supra note 1, at 1–2.

[4] Id. at 2.

[5] Id.

[6] Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, Am. Bar Ass’n: Project Blog (Apr. 14, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/.

[7] The Supreme Court’s Shadow Docket, supra note 1, at 2.

[8] See 28 U.S.C. § 1651; 28 U.S.C. § 2101(f).

[9] Ex parte Fahey, 332 U.S. 258, 259 (1947).

[10] Sup. Ct. R. 20(1) (2019).

[11] Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (Brennan, J., in chambers)).

[12] Mark Joseph Stern, Congress Finally Scrutinizes One of SCOTUS’s Most Disturbing Practices, Slate (Feb. 18, 2021, 6:53 PM), https://slate.com/news-and-politics/2021/02/supreme-court-shadow-docket-house-hearing.html.

[13] The Supreme Court’s Shadow Docket, supra note 1, at 4.

[14] Id. at 4–5.

[15] Id. at 5–6.

[16] Id. at 2–3.

[17] Trump v. Sierra Club, 140 S. Ct. 2620, 2620 (2020) (mem.).

[18] South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 716 (2021) (mem.).

[19] Montgomery v. Rosen, 141 S. Ct. 1144, 1144 (2021) (mem.).

[20] Whole Woman’s Health v. Jackson, No. 21A24, slip op. at 1 (2021) (mem).

[21] Ala. Ass’n Realtors v. Dep’t Health & Hum. Servs., No. 21A23, slip op. at 1 (2021) (per curiam) (mem.).

[22] Biden v. Texas, No. 21A21, slip op. at 1 (2021) (mem.).

[23] The Supreme Court’s Shadow Docket, supra note 1, at 5.

[24] Four of the total forty-one applications were withdrawn and one was held in abeyance. Id., at 4–5.

[25] Id. at 5.

[26] Id.

[27] Steve Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently., Wash. Post (Sept. 23, 2021, 10:43 AM), https://www.washingtonpost.com/outlook/2021/09/03/shadow-docket-elena-kagan-abortion/

[28] Stephen I. Vladeck, Opinion, The Supreme Court Is Making New Law in the Shadows, N.Y. Times (Apr. 15, 2021), https://www.nytimes.com/2021/04/15/opinion/supreme-court-religion-orders.html

[29] 141 S. Ct. 1294 (2021) (per curiam) (mem.).

[30] Stephen I. Vladeck, The Supreme Court Is Making New Law in the Shadows, supra note 28.

[31] Id.

[32] No. 21A24 (S. Ct. Sept. 1, 2021) (mem.).

[33] Id. at 1–2.

[34] Id. at 2.

[35] Id. at 1 (Kagan, J., dissenting).

[36] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[37] Id.

[38] In 2020, two orders allowing the first federal executions in seventeen years were handed down at 2:10 am EST and 2:46 am EST. Another shadow docket was been handed down at 11:56 pm the night before Thanksgiving.  The Supreme Court’s Shadow Docket, supra note 1, at 13–14.

[39] Id. at 13.

[40] Id.

[41] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[42] The Supreme Court’s Shadow Docket, supra note 1, at 14.

[43] Vladeck, The Supreme Court Doesn’t Just Abuse its Shadow Docket. It Does So Inconsistently, supra note 27.

[44] Whole Woman’s Health, No. 21A24, slip op. at 1–2 (Kagan, J., dissenting).

christianity, cross, gold, heritage, orthodox, building, architecture, religion, outdoors, church

Blake Davis

The COVID-19 pandemic has upended the way Americans engage in their weekly religious practices.[1]  As with every other area of American life, religious organizations have become accustomed to providing socially distanced services and complying with both federal and state guidelines for safe worship experiences.[2]  As churches, synagogues, and mosques have transitioned to servicing their parishioners in the COVID-19 era, some religious organizations have faced restrictions that they allege are inconsistent with restrictions imposed on their non-religious counterparts down the street.[3]  These alleged inconsistent applications of law have led religious organizations to file lawsuits, challenging the alleged inconsistencies as improper violations of the Free Exercise Clause.[4]  The United States Supreme Court has become more open to these claims the longer the pandemic has gone on.  Both the Court’s initial government-friendly approach to addressing these cases and the Court’s recent religious organization-friendly approach to addressing these cases are each addressed, in turn, below.

Towards the beginning of the pandemic, the Supreme Court seemed to ascribe great weight to the extraordinary circumstances caused by the COVID-19 crisis and thus imposed a more restrictive standard on religious organizations, who sought to challenge COVID-related restrictions.  For example, in the May 2020 decision of South Bay United Pentecostal Church v. Newsom,[5] the Supreme Court denied an application for injunctive relief, arising from a COVID-related restriction on houses of worship in California.[6]  Four Justices noted their dissent from the case, meaning that South Bay was decided on a narrow 5-4 basis.[7]  In a solo concurrence, Chief Justice John Roberts provided the only recorded commentary supporting the majority’s decision.[8]

Chief Justice Roberts explained that California’s COVID restrictions “appear consistent with the Free Exercise Clause of the First Amendment” because California’s restrictions “treat[] more leniently only dissimilar activities . . . in which people neither congregate in large groups nor remain in close proximity for extended periods.”[9]  Because the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter,” Chief Justice Roberts concluded that the discretion afforded to state officials should be “especially broad.”[10] 

The dissenting Justices disagreed with the Chief Justice’s analysis.[11]  Justice Brett Kavanaugh, in a dissent joined by Justice Clarence Thomas and Justice Neil Gorsuch, argued that an injunction should have been granted because “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.”[12]  The dissenting Justices argued that California failed the balancing test for Free Exercise cases articulated in Church of Lukumi Babalu Aye, Inc. v. Hialeah,[13] which provides that the government must establish a “compelling government interest” for a regulation, treating religious organizations in a discriminatory manner, and that the government must ensure that such a regulation is “narrowly tailored to advance that interest.”[14]  According to the dissenting Justices, California’s imposition of an occupancy cap on religious services discriminated against religious organizations because California imposed no such occupancy cap on a “litany of other secular businesses.”[15] As such, the dissenting Justices determined that the religious organization merited injunctive relief.[16]

The Court continued to apply its more government-friendly approach to COVID-19 related restrictions on religious organizations in Calvary Chapel Dayton Valley v. Sisolak.[17]  In Calvary Chapel, the Court denied injunctive relief to a church, which alleged that Nevada’s COVI-19 related occupancy requirements unconstitutionally discriminated against religious organizations, like Calvary Chapel, in favor of non-religious organizations, like casinos.[18]  The denial of the application for injunctive relief featured no concurrences or commentary, explaining the majority’s position.[19]

However, the same four Justices who dissented in South Bay also dissented in Calvary Chapel.[20]  In a solo dissent, Justice Gorsuch argued that Nevada’s regulations permitting casinos to admit “hundreds at once” while “churches, synagogues, and mosques are banned from admitting more than 50 worshippers” unconstitutionally violated the Free Exercise Clause.[21]  While acknowledging that the “world we inhabit today, with a pandemic upon us, poses unusual challenges,” Justice Gorsuch summarized his argument by stating “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”[22]  Justice Samuel Alito dissented separately in an opinion joined by Justice Thomas and Justice Kavanaugh.[23]  These three Justices reached the same conclusion that the dissenters had reached in South Bay.  In the dissenting Justices’ view, the restrictions failed the Lukumi balancing test for Free Exercise Clause cases.[24]  The dissenters acknowledged that “[i]n times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations” and that “the opening days of the COVID–19 outbreak plainly qualify” as an exigency, entitling public officials to significant discretion in crafting regulations.[25]  However, since the Calvary Chapel case was being considered more than four months after Nevada declared a state of emergency, the dissenting Justices concluded that “the problem is no longer one of exigency, but of considered yet discriminatory treatment of places of worship.”[26]

In a notable shift from the South Bay and Calvary Chapel decisions, the Court adopted its more religious organization-friendly approach to these COVID-related restriction claims, when the Court granted injunctive relief for a church and a synagogue in Roman Catholic Diocese of Brooklyn v. Cuomo.[27]  In Roman Catholic Diocese, the Court had its first chance to address a religious organization’s application for injunctive relief from a COVID-related restriction since Justice Amy Coney Barrett joined the Court.[28]  Both a synagogue and a church challenged New York’s COVID-related business capacity requirements, which allowed some businesses to admit “as many people as they wish” while prohibiting the synagogue and church from “admit[ting] more than 10 persons” to their worship services.[29]  Five Justices—the four dissenting Justices from South Bay and Calvary Chapel along with Justice Barrett—adopted the position taken by the dissenters in South Bay and Calvary Chapel.[30]  These Justices held that the plaintiffs were entitled to injunctive relief because New York had failed to pass the Lukumi balancing test.[31]

Three dissenting Justices—Justice Stephen Breyer, Justice Elena Kagan, and Justice Sonia Sotomayor—argued that the plaintiffs in Roman Catholic Diocese no more merited injunctive relief than the plaintiffs in South Bay and Calvary Chapel, who had previously not merited injunctive relief.[32]  These three Justices argued that the plaintiffs had failed to establish that New York’s business occupancy requirements unconstitutionally discriminated against religious organizations in violation of the Free Exercise Clause.[33]  As such, the dissenting Justices argued that the injunction should not have been granted.[34]  Chief Justice Roberts also dissented on separate grounds, arguing that the case should have been dismissed as moot because the challenged regulations had been rescinded by New York during the case’s appeal.[35]

In the wake of Roman Catholic Diocese, the federal circuit courts have begun applying the Supreme Court’s less restrictive approach to analyzing COVID regulations that impact religious organizations.  For example, the Ninth Circuit, addressing the merits of the Calvary Chapel case rather than the request for injunctive relief pending appeal that was previously addressed by the Supreme Court, applied the Supreme Court’s analysis in the Roman Catholic Diocese decision to the facts of Calvary Chapel.[36]  A unanimous panel for the Ninth Circuit held that the Lukumi balancing test should be applied to the facts of the Calvary Chapel case.[37]  The Court further held that Nevada failed the Lukumi balancing test because the regulations were not narrowly tailored.[38]  The panel thus reversed the decision of the district court and remanded the case with instructions for the district court to issue a preliminary injunction, prohibiting Nevada from enforcing the occupancy regulations against the church or other religious organization.[39]

Because the Supreme Court has applied this more religious organization-friendly approach to COVID-19 related regulations, the lower federal courts are beginning to follow suit, as the panel opinion in Calvary Chapel demonstrates.  As the COVID-19 pandemic continues and vaccine distribution becomes more widespread, it is quite possible that this religious organization-friendly approach to COVID-19 related regulations will become even more commonplace across the federal courts.

 

 

[1] Frank Newport, Religion and the COVID-19 Virus in the U.S., Gallup.com (Apr. 6, 2020), https://news.gallup.com/opinion/polling-matters/307619/religion-covid-virus.aspx

[2] See, e.g., Considerations for Communities of Faith, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/faith-based.html (Dec. 30, 2020). 

[3] See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020). 

[4] See, e.g., Calvary Chapel, 140 S. Ct. at 2603; S. Bay United Pentecostal Church, 140 S. Ct. at 1613. 

[5] 140 S. Ct. 1613 (2020). 

[6] Id. 

[7] Id. 

[8] Id. (Roberts, C.J., concurring). 

[9] Id. 

[10] Id. at 1613–14 (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)) (internal quotation mark omitted). 

[11] Id. at 1614 (Kavanaugh, J., dissenting).  

[12] Id. 

[13] 508 U.S. 520 (1993). 

[14] S. Bay United Pentecostal Church, 140 S. Ct. at 1614–15 (Kavanaugh, J., dissenting) (quoting Lukumi, 508 U.S. at 531–32).  

[15] Id. at 1615.  

[16] Id. at 1614. 

[17] 140 S. Ct. 2603 (2020). 

[18] Id. at 2604–05 (Alito, J., dissenting) (describing the facts of the case). 

[19] Id. at 2603 (opinion of the Court). 

[20] Id. at 2603 (Alito, J., dissenting); id. at 2609 (Gorsuch, J., dissenting). 

[21] Id. at 2609 (Gorsuch, J., dissenting). 

[22] Id. 

[23] Id. at 2603 (Alito, J., dissenting). 

[24] Id. at 2605–07 (Alito, J., dissenting).  

[25] Id. at 2605. 

[26] Id. 

[27] 141 S. Ct. 63, 65 (2020). 

[28] Jess Bravin, Supreme Court Blocks Covid-19 Restrictions on Religious Services in New York, Wall Street Journal, https://www.wsj.com/articles/supreme-court-blocks-covid-19-restrictions-on-church-attendance-in-new-york-11606369004 (Nov. 26, 2020, 9:04 PM)

[29] Roman Catholic Diocese, 141 S. Ct. at 66 (per curiam opinion). 

[30] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[31] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[32] Id. at 76–78 (Breyer, J., dissenting). 

[33] Id. at 77. 

[34] Id. 

[35] Id. at 75 (Roberts, C.J., dissenting). 

[36] Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169, 2020 WL 7350247, at *1, *3–4 (9th Cir. Dec. 15, 2020). 

[37] Id. at *4.  

[38] Id. 

[39] Id. at *4–5. 

By Itané O. Coleman 

On November 21, 2006, Kathryn Johnston was ninety-two. Police entered her home. They shot her six times. Killing her.[1]

On May 16, 2010, Aiyana Jones was seven. Police entered her grandmother’s home. They shot the child while sleeping. Killing her.[2]

Though Black men are often the face of police violence for a number of reasons, Black women and girls are susceptible to violence as well. Black women are only 13 percent of the female population, but account for 28 percent of unarmed deaths in the U.S.[3] The rise of campaigns, such as #SayHerName and #BlackLivesMatter, have attempted to curtail ignorance surrounding violence against Black women and girls, but their stories remain on the fringes of justice and accountability.

Since 2015, about 250 women have been fatally shot by the police in their homes or place of residence.[4] At least forty-eight of those women were Black,[5] and Breonna Taylor was one of them. The fatal events leading to her death are a viable starting point for noting the implications of a contributor to the unarmed deaths of Black women: no-knock warrants.

On March 13, 2020, plain-clothed police officers executed a no-knock search warrant, to enter Taylor’s Louisville, Kentucky, apartment.[6] Though the actual location officers were looking for was more than ten miles away from Taylor’s home,[7] they were under the belief that her apartment was being used for drugs. Taylor and Kenneth Walker, her boyfriend, were asleep when they heard banging at the door.[8] Fearing that their home was being burglarized, Walker grabbed a legal firearm and fired one shot in self-defense, injuring an officer.[9] The officers’ response to Walker’s warning shot manifested in the form of twenty-two rounds, eight of which fatally wounded Taylor.[10] No drug evidence was found[11] and the suspect the officers were looking for was in police custody at the time Taylor’s home was raided.[12]

As a result of these events, the Louisville Metro Council voted 26-0 in favor of Breonna’s Law, an ordinance that bans the enforcement of no-knock warrants. Louisville Metro Police Detective Joshua Haynes was also placed on administrative leave for executing the warrant that led to Taylor’s death,[13] but no officers have been charged for this unarmed killing. Many states have proposed bans on no-knock warrants as an attempt of policing reform. One victim of a no-knock raid gone wrong stated, “This is about race. You don’t see SWAT teams going into a white-collar community, throwing grenades into their homes.”[14] The 2013 death of Alberta Spruill as a result of police breaking into her apartment and setting off grenades is one of countless examples of Black lives being treated as criminal and disposable.[15]

According to David Alan Sklansky, a Professor of Criminal Law at Stanford, no-knock warrants disproportionately impact Black people and other people of color.[16] This policing tactic is a racialized product of the War on Drugs.[17] During the 1960s and 70s, no-knock warrants were disproportionately enforced in Black communities, reaffirming the perception that Blackness was synonymous with criminality.[18] In fact, no-knock warrants became so problematic that Congress repealed the statute authorizing their use due to reports of mistaken violent, and often illegal raids.[19] Despite the problematic nature of no-knock warrants, Supreme Court cases in the 1990s and early 2000s paved the way for their reemergence.[20]

In deciding the parameters of no-knock warrants, the Supreme Court ruled that the Fourth Amendment incorporates a knock-and-announce requirement.[21] In Wilson v. Arkansas,[22] the Court held that knock and announce is a factor in a reasonableness test of the Fourth Amendment, but not a requirement.[23] The Court did not specify instances that would make unannounced entries reasonable.[24] Instead, it delegated the task of determining the reasonableness of unannounced entries to state courts,[25] opening the door for unpredictable enforcement of no-knock warrants. In Richards v. Wisconsin,[26] the Supreme Court expanded the likelihood of unannounced entries by “explicitly approv[ing] of states giving magistrates the authority to issue no-knock warrants.”[27] Richards became the national standard for upholding searches conducted with no-knock warrants[28] because the Court imposed a reasonable suspicion standard that would allow officers to utilize discretion in announcing their presence.[29] The Court’s reasonableness standard “amounted to reasonable suspicion, meaning that a relatively low quantum of evidence was necessary for an action.”[30]

Though most states have a knock-and-announce statute on the books, state and federal courts often interpret exceptions to these statutes, such as the destruction of evidence and danger to police officers.[31] As a result of widespread judicial discretion regarding these warrants, they are routinely issued and are easier to get than most people would think.[32] Coincided with the rate of gun ownership in this country, no-knock warrants tend to result in violent and fatal outcomes.[33] As a result, public recognition of no-knock warrants as an aggressive and intrusive practice has grown. [34] Part of the problem is that no-knock warrants are often executed at night and fail to ensure the safety of civilians and officers.[35]

The death of Breonna Taylor is one of many examples of unarmed Black women impacted by no-knock warrants. Racialized police tactics require an understanding of the ways in which Black and Brown lives are balanced against police discretion. More often than not, the loss of Black and Brown lives do not outweigh implicit bias in U.S. policing. Though the path to racial injustice is long, 2020 has seen a heightened demand for learning and change. Thus, the death of Breonna Taylor should encourage interrogation of no-knock warrants and equitable reform.[36]


[1] Regina Jennings, From Slavery to Contemporary Genocide: A Literary and Linguistic Analysis of Why American Blacks Deserve Reparations, 18 Race, Gender, and Class 73, 75 (2011).

[2] 7-Year-Old Girl Accidentally Shot By Swat Team, ACLU, https://www.aclu.org/other/7-year-old-girl-accidentally-shot-swat-team (last visited October 22, 2020).

[3] Marisa Iati et al., Nearly 250 Women Have Been Fatally Shot by Police Since 2015, Wash. Post, (Sept. 4, 2020), https://www.washingtonpost.com/graphics/2020/investigations/police-shootings-women/.

[4] Id.

[5] Id.

[6] Aliss Higham, Breonna Taylor: Who Was Breonna Taylor? What Happened to Her?, Express, (June 5, 2020), https://www.express.co.uk/news/world/1291365/Breonna-Taylor-who-is-Breonna-Taylor-what-happened-black-lives-.

[7] Pilar Melendez, Louisville Cop Placed on Leave After Applying for Search Warrant in Breonna Taylor Case, Daily Beast, (June 10, 2020), https://www.thedailybeast.com/louisville-metro-police-detective-joshua-jaynes-placed-on-administrative-leave-in-breonna-taylor-case.

[8] Id.

[9] Id.

[10] Higham, supra note 6.

[11] David A. Sklansky & Sharon Driscoll, Stanford’s David Sklansky on the Breonna Taylor Case, No-Knock Warrants, and Reform, Stan. L. Sch., (Sept. 28, 2020), https://law.stanford.edu/2020/09/28/stanfords-david-sklansky-on-the-breonna-taylor-case-no-knock-warrants-and-reform/.

[12] Melendez, supra note 7.

[13] Melendez, supra note 7.

[14] Brian Dolan, To Knock or Not to Knock? No-Knock Warrants and Confrontational Policing, 93 St. John’s L. Rev. 201, 226 (2019).

[15] Jennings, supra note 1, at 75.

[16] Sklansky & Driscoll, supra note 11.

[17] Dolan, supra note 14, at 211.

[18] Carl Suddler, The Color of Justice Without Prejudice: Youth, Race, and Crime in the Case of the Harlem Six, 57 Am. Stud. 57, 58 (2018).

[19] Dolan, supra note 14, at 211.

[20] Id. at 212.

[21] Adina Schwartz, Homes as Folding Umbrellas: Two Supreme Court Decisions on “Knock and Announce,25 Am. J. Crim. L. 545, 546 (1998).

[22] 514 U.S. 927 (1995).

[23] Schwartz, supra note 21, at 550.

[24] Id.

[25] Id.

[26] 520 U.S. 385 (1997).

[27] Dolan, supra note 14, at 213.

[28] Id.

[29] See Richards, 520 U.S. at 394.

[30] David M. Jones, What Does “Knock And Announce” Mean? An Analysis of Wilson v. Arkansas and Its Progeny, 26 Am. J. Crim. Just. 287, 293 (2002).

[31] Dolan, supra note 14, at 214.

[32] See id. at 223–24.

[33] Id. at 220.

[34] Id. at 207.

[35] Id. at 216.

[36] Several cities, such as San Antonio, Texas, and Santa Fe, New Mexico, have followed Louisville’s lead in banning no-knock warrants. Ray Sanchez, Laws Ending No-Knock Warrants After Breonna Taylor’s Death Are A ‘Big Deal’ But Not Enough, CNN, (October 10, 2020, 6:03 AM), https://www.cnn.com/2020/10/10/us/no-knock-warrant-bans-breonna-taylor/index.html. Though most states allow no-knock warrants, Breonna’s Law has inspired a ban on the national level. Chantal Da Silva, Where Are No-Knock Warrants Legal? Bipartisan Bill Seeks Ban After Breonna Taylor’s Death, Newsweek., (June 12, 2020, 10:30 AM), https://www.newsweek.com/where-are-no-knock-warrants-legal-bipartisan-bill-seeks-ban-after-breonna-taylors-death-1510478. After speaking with Taylor’s family concerning the tragedy, Senator Rand Paul introduced a bill called the Justice for Breonna Taylor Act, which if passed, would end no-knock raids in the United States. Id.

U.S. Army Spc. Valerie Arceneaux, 3rd Armored Brigade Combat Team, 1st Cavalry Division, poses for a series of feature photos during the Expert Soldier Badge Qualification at Fort Hood, Texas, August 19, 2020. (U.S. Army Illustration by Sgt. Calab Franklin)

By Ashley Willard

As it stands, the Military Selective Service Act (“MSSA”) only impacts males.[1] The MSSA gives the President authority to issue a proclamation requiring all male citizens and most male noncitizen residents between the ages of eighteen and twenty-six to register with the Selective Service.[2] The current registration period began when President Carter issued Presidential Proclamation 4771 in 1980.[3] The registration process facilitates conscription in the event that a national emergency necessitates a military draft.[4] Any man who knowingly fails to register may face criminal penalties of up to five years in prison and up to $10,000 in fines.[5] Other penalties include ineligibility for federal student aid or federal job training.[6]

Nearly forty years ago, the Supreme Court upheld the constitutionality of the MSSA in Rotsker v. Goldberg.[7] The Court emphasized then recent congressional findings in which Congress considered extending the MSSA to include women, but ultimately declined to do so.[8] In these findings, Congress highlighted two main facts—(1) the purpose of the draft is mass mobilization of combat troops, and (2) women were ineligible for combat roles at the time.[9] Therefore, the Court held that men and women were not similarly situated with regard to the draft because of the combat restrictions on women, and therefore there was no Fifth Amendment violation.[10]

However, in February 2019, a federal district court judge in Houston found that the male-only draft registration requirement was indeed unconstitutional on Fifth Amendment equal protection grounds.[11] The court reasoned that “Rotsker is factually distinguishable” because of the substantial changes in the facts underlying that decision.[12] Women’s opportunities in the military have greatly expanded since 1981.[13] In fact, the doors opened completely for women in 2015 when Defense Secretary Ash Carter rescinded the combat-exclusion policy that had previously kept women from serving in combat roles.[14] The district court highlighted that “women are now eligible for all military service roles, including combat positions.”[15] Applying intermediate scrutiny, the court held that the government did not meet its burden to show that the male-only registration requirement continues to be substantially related to the admittedly important governmental interest of raising and supporting armies.[16]

The government appealed, and in August 2020, the Fifth Circuit reversed, holding that Rotsker controlled until the Supreme Court itself decided to reverse its precedent.[17] The court of appeals echoed the lower court’s assertion that “the factual underpinning of the controlling Supreme Court decision has changed,” but emphasized that appeals courts do not have “license to disregard or overrule that precedent.”[18] Yet, while the MSSA remains binding precedent, the winds of change have clearly started to blow.

In 2017, Congress tasked the National Commission on Military, National, and Public Service to conduct a review of the military selective service process.[19] In their report, issued in March 2020, the Commission concluded that it was time to extend the registration requirement to women.[20] First, there are prudent reasons for including women in the draft—seven out of every ten young Americans would not meet the physical, moral, educational, and health standards required for service.[21] Department of Defense research indicates that women are equally likely to qualify for service as men, and excluding half the pool of eligible individuals would be “imprudent.”[22] Second, there are ethical and moral reasons for doing so—the “current disparate treatment of women unacceptably excludes women from a fundamental civic obligation and reinforces gender stereotypes about the role of women.”[23]

If Congress is persuaded by this recommendation and passes legislation amending the MSSA, there will be no need for the Supreme Court to revisit the issue.[24] There have been several failed legislative attempts to amend the MSSA and require women to register with the Selective Service.[25] The most promising attempt began with the Senate Armed Services Committee recommending that Congress amend the MSSA to require women to register; it ended instead with the creation of a commission to report on the issue, as discussed above.[26] A different report, published by the Congressional Research Service, proposed three routes that Congress could take to wade into the debate.[27] First, Congress could amend the MSSA to require women to register for the Selective Service.[28] Second, Congress could simply amend the MSSA to provide a new justification for why women should not be required to register, to preempt judicial review.[29] Third, Congress could repeal the MSSA altogether.[30] It is highly unlikely that Congress will pursue this final route.

If Congress takes no action, then resolution of this issue rests with the judicial system. As discussed above, the facts relied on by the Rotsker Court have changed substantially and the circumstances no longer seem to support the constitutionality of the MSSA. The Court has demonstrated a willingness in the past to overrule prior decisions based on subsequent factual developments.[31] Therefore, if the Court takes up the issue, it is likely that it will overturn Rotsker and declare a male-only draft unconstitutional.

Whether the issue is tackled in Congress or by the Court, we can expect a resolution in the not-so-distant future. Ladies, get ready. 


[1] 50 U.S.C. § 3802 (“[I]t shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who . . . is between the ages of eighteen and twenty-six, to present himself for and submit to registration) (emphasis added).

[2] Id. See also Jonathan M. Gaffney, Cong. Rsch. Serv., LSB10491, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft 1 (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10491.

[3] Proclamation No. 4771, 3 C.F.R. § 82 (1981), reprinted in 50 U.S.C. § 3802 app. at 742 (2018).

[4] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[5] 50 U.S.C. § 3811(a)–(b).

[6] Id. § 3811(f).

[7] 453 U.S. 57 (1981).

[8] Id. at 73.

[9] Id. at 77.

[10] Id. at 78–79. The MSSA, a federal law, implicates the Fifth Amendment rather than the Fourteenth because the Fifth Amendment applies to actions of the federal government. See Barron v. Baltimore, 32 U.S. 243 (1833).

[11] Nat’l Coal. for Men v. Selective Serv. Sys., 355 F. Supp. 3d 568 (S.D. Tex. 2019), rev’d, 969 F.3d 546 (5th Cir. 2020). Marc Angelucci, counsel for the National Coalition for Men, was killed earlier this year by fellow men’s rights activist Den Hollander, a former member of NCFM who had been ousted from the group in 2015 after making threats on NCFM’s president for passing him over as co-counsel in this case. Sonia Mohge & Paul P. Murphy, Friend of Slain California Attorney Says Suspect in Attack on Judge’s Family Had a Grudge Against Him, CNN (Jul. 22, 2020), https://www.cnn.com/2020/07/22/us/hollander-angelucci-judge-salas-shooting/index.html.

[12] Nat’l Coal. for Men, 355 F. Supp. 3d at 575.

[13] Id. at 576.

[14] Nat’l Comm’n on Mil., Nat., and Pub. Serv., Inspired to Serve: The Final Report 114 (2020), https://inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf [hereinafter Inspired to Serve]. See also Cheryl Pellerin, Carter Opens All Military Occupations, Positions to Women, DOD News (Dec. 3, 2015),  https://www.defense.gov/Explore/News/Article/Article/632536/carter-opens-all-military-occupations-positions-to-women/#:~:text=Defense%20Secretary%20Ash%20Carter%20announced,open%20to%20women%2C%20without%20exception.&text=%E2%80%9CThey’ll%20be%20allowed%20to,into%20combat%2C%22%20Carter%20added.

[15] Nat’l Coal. for Men, 355 F. Supp. 3d at 576.

[16] Id. at 581.

[17] Nat’l Coal. for Men v. Selective Serv. Sys., 969 F.3d 546, 547 (5th Cir. 2020).

[18] Id. at 549-50.

[19] Gaffney, supra note 2, at 3.

[20] Inspired to Serve, supra note 14, at 115.

[21] Id.

[22] Id. Actually, the reported statistics indicate that women are slightly more likely to qualify for service (29.3 percent) than their male counterparts (29 percent). Id.

[23] Id.

[24] While the National Coalition for Men has not yet petitioned the Supreme Court for review, its website indicates that it plans to, as it is currently “exploring its options, including filing a Petition for Writ of Certiorari with the United States Supreme Court.” Nat’l Coalit. for Men, https://ncfm.org/ (last visited Oct. 6, 2020).

[25] Gaffney, supra note 2, at 3.

[26] See supra notes 19–23.

[27] Gaffney, supra note 2, at 4.

[28] Id.

[29] Id. The government offered two such justifications in National Coalition for Men: (1) the requirement of female conscription into combat roles might reduce female enlistment by increasing the perception that women would be forced to serve in combat roles; and (2) the administrative problems of drafting women, who are treated differently with regard to “dependency, hardship, and physical standards.” 969 F.3d 546, 579–80 (5th Cir. 2020). The court outright rejected the first as an “archaic and overbroad generalization” that women are more combat-averse than men, so that justification will unlikely be used to support future legislation. Id. at 579. While the court ultimately also rejected the second, they did so in part because of the standard of review. The court indicated that if Congress were to make a “studied choice” based on male and female rates of physical eligibility, the administrative justification might stand in the future. Id. at 581. However, as discussed in supra note 22, women are actually more likely to be physical eligible than men. Thus, while Congress might be able to find a satisfactory administrative justification, they probably will not be able to justify the continued exclusion of women based on rates of physical eligibility.

[30] Gaffney, supra note 2, at 4.

[31] Cong. Rsch Serv., R45319, The Supreme Court’s Overruling of Constitutional Precedent 17–18 (2018), https://www.everycrsreport.com/files/20180924_R45319_3cafb6dc6b134c9a1c83eff9bfb780a3b904bd3a.pdf.