This June, in Mallory v. Norfolk Southern Railway Company,[1] the Supreme Court held that a Pennsylvania statutory scheme which requires out-of-state corporations to “consent” to general personal jurisdiction to do business in the state was consistent with Due Process.[2] This decision allows Robert Mallory, a Virginia resident, to bring a lawsuit in Pennsylvania state court against his former employer, Norfolk Southern, a company incorporated and headquartered in Virginia, for injuries allegedly sustained in the course of his employment at Norfolk Southern facilities in Ohio and Virginia.[3] While the majority insisted that this decision is consistent with its precedent,[4] it has the potential to displace the Court’s existing corporate personal jurisdiction jurisprudence and green light a forum shopping spree. But it is nevertheless unclear whether the Mallory decision can withstand a challenge under the Dormant Commerce Clause.
A Brief Overview of Corporate Personal Jurisdiction
The early conception of personal jurisdiction was set forth in the Court’s 1878 decision in Pennoyer v. Neff,[5] where the Court held that a state could exercise personal jurisdiction only over persons or property located within its territory.[6] With these territorial limitations in mind, state statutes sometimes required corporations to appoint an in-state agent to receive service of process which gave the corporate entity a “presence” in the state.[7] Although it was typically considered to be an unreasonable burden to require companies to defend against causes of action having no connection to the forum,[8] this was not always the case.[9] As the 20th century progressed, the Court’s decision in International Shoe Co. v. Washington[10] largely supplanted territorial notions of personal jurisdiction with a contacts-based test.[11] To exercise personal jurisdiction consistent with the Due Process Clause, the Court required that a plaintiff’s claims arose out of the defendant’s activities within the state or that the defendant had taken other such acts to render the corporation liable to suit.[12] Scholars later labeled these bases as specific personal jurisdiction and general personal jurisdiction.[13] Specific and general personal jurisdiction comport with due process because the defendant’s contacts with the forum make defending a suit consistent with “traditional notions of fair play and substantial justice.”[14] While there have been some interesting developments in specific jurisdiction over the years,[15] the focus of Mallory was general personal jurisdiction.[16] The Court has previously held that to exercise general personal jurisdiction, a corporate defendant’s contacts must be so extensive that the defendant is “essentially at home in the forum [s]tate.”[17] A corporation is considered to be “at home” wherever it is incorporated, has its principal place of business,[18] or is engaged in such substantial operations as to render it at home in that state.[19]
The Court’s Decision in Mallory v. Norfolk Southern Ry. Co.
In Mallory, the Court purportedly recognized another basis for the exercise of general jurisdiction, “consent” by registering to do business within a state.[20] Under Pennsylvania law, out-of-state corporations who register to do business in the Commonwealth contemporaneously agree to defend any cause of action against them.[21] The majority concluded that since the Court’s 1917 decision in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co.,[22] that a state can, consistent with the Constitution, require a company to “consent” to personal jurisdiction as a requirement of doing business in the forum.[23] In Pennsylvania Fire, the Court upheld a Missouri law which required out-of-state insurance companies to appoint a state official as the company’s agent to receive service of process and accept service on that official as valid in any suit.[24] Relying on Pennsylvania Fire, the Court made short work of Norfolk Southern’s arguments and ruled in Mallory’s Favor.
The Court’s decision in Mallory was only supported by a plurality of the justices, as Justice Coney Barrett joined by Chief Justice Roberts, Justice Kagan, and Justice Kavanaugh dissented. In her dissent, Justice Coney Barrett took issue with the majority’s acceptance of corporate registration as being synonymous with consent.[25] Justice Coney Barret contended that this view of consent effectively permits a state to “defeat the Due Process Clause by adopting a law at odds with the Due Process Clause.”[26] Furthermore, she argued that Pennsylvania’s assertion of general jurisdiction over every company doing business within its borders implicates federalist interests, as Pennsylvania is intruding on the prerogative of other states to adjudicate the rights of its citizens and enforce its laws.[27] Finally, Justice Coney Barrett contended that Pennsylvania Fire and other cases that utilize the territorial approach to personal jurisdiction and the legal fictions of “implied consent” and “corporate presence” were overruled by the Court’s decision in International Shoe.[28]
Potential Effects of & Challenges to the Mallory Decision
While the effects of the Court’s decision in Mallory are not yet clear, the most obvious consequence is that other states will enact statutory schemes subjecting corporations who do business in-state to general personal jurisdiction in their courts. It seems likely that state legislatures would be willing to enact legislation that has the potential to bring in extra revenue to their courts and attorneys. If this does become prevalent, national corporations will likely face increased litigation in states that have preferential choice-of-law provisions for plaintiffs, and personal jurisdiction may become the next preferred tool for forum shopping. Furthermore, if corporations are subject to general jurisdiction in several states by virtue of “consenting” by registering to do business in the forum, the concepts of general and specific jurisdiction set forth in International Shoe and developed by its progenies may become largely unnecessary.
While the Court’s decision is seemingly final regarding personal jurisdiction, Justice Alito’s concurrence raised that this decision may run afoul of the dormant Commerce Clause which “prohibits state laws that unduly restrict interstate commerce.”[29] Under applicable precedent, “once a state law is shown to discriminate against interstate commerce ‘either on its face or in practical effect,’ the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means.”[30] Justice Alito noted that Pennsylvania’s registration statute likely discriminates against out-of-state companies or imposes a significant burden on interstate commerce and was skeptical of a state’s interest in adjudicating claims by non-residents harmed by out-of-state actors through conduct outside the state.[31] Nevertheless, a successful challenge under the dormant Commerce Clause faces long odds in light of the Court’s decision in National Pork Producers Council v. Ross,[32] which displayed the current Court’s division on breadth of the dormant Commerce Clause and its general reluctance to use it to invalidate state law.[33] Therefore, while the Court’s decision in Mallory has the potential to have significant effects on corporate personal jurisdiction, it seems likely that the Court has not yet said its last word. So, is the International Shoe on the other foot? We will just have to wait and see.
[4]Id. at 146 (“[U]nder our precedents a variety of ‘actions of the defendant’ that may seem like technicalities nonetheless can ‘amount to a legal submission to the jurisdiction of a court.’” (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704–705 (1982))).
[7]See Charles W. “Rocky” Rhodes, Nineteenth Century Personal Jurisdiction Doctrine in a Twenty-First Century World, 64 Fla. L. Rev. 387, 436 (2012) (“To alleviate the injustice from a corporation’s avoidance of its obligations where they arose, states began to require, as a statutory condition for the corporation to do business in the state, that the corporation register with state authorities and appoint an agent to accept service of process in cases related to its forum activities.”).
[8]See Simon v. S. Ry. Co., 243 U.S. 93, 130 (1915) (“statutory consent of a foreign corporation to be sued does not extend to causes of action arising in other states.”).
[9]See Penn. Fire Ins. Co. of Phila. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917).
[11] In Burnham v. Superior Court of Cal., 495 U.S. 604 (1990), the Court upheld transient or “tag” jurisdiction as being consistent with Due Process but noted that consent and presence were purely fictional, and that International Shoe cast those fictions aside.
[13]See Arthur T. von Mehren and Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136–37 (1966).
[14]International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
[15] For a discussion about developments in specific personal jurisdiction see generally Anthony Petrosino, Rationalizing Relatedness: Understanding Personal Jurisdiction’s Relatedness Prong in the Wake of Bristol-Myers Squibb and Ford Motor Co., 91 Fordham L. Rev. 1563, 1563 (2023).
[16] Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 124 (2023).
[17] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
[18] Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).
[33]Ross, 598 U.S. 356 (affirming dismissal for failure to state a claim on a dormant Commerce Clause challenge of a California law barring the sale of pork from pigs confined in a cruel manner).
The Supreme Court’s landmark decision in Chevron v. National Resources Defense Council[1] has served as a pillar in the administrative law community for almost forty years[2] and remains one of the most cited high court decisions in history.[3] In Chevron, the Court established the Chevron doctrine, a two-step analysis for judicial “revie[w] [of] an agency’s construction of the statute which it administers.”[4]
First, the court must identify whether Congress has directly addressed the issue in question (i.e., whether the statute is ambiguous).[5] If the statute specifically addresses the issue, such that congressional intent is evident, the Chevron analysis ends there, and both the court and the administrative agency must give effect to Congress’ intent.[6] However, if the statute is silent on the issue, the court will proceed to step two of the analysis to determine whether the agency’s interpretation is reasonable.[7] If the court finds that the agency’s interpretation is reasonable, the court will not impose its own reading of the statute, but will defer to the agency’s interpretation.[8] Thus, the Chevron doctrine grants federal administrative agencies substantial judicial deference if (1) a statutory provision is ambiguous, and (2) the federal agency’s interpretation of the ambiguity is reasonable.[9]
However, in recent years, the Chevron doctrine has been the target of attacks.[10] Critics, including prominent judges and scholars, fear that the doctrine places legislative and judicial power in the hands of unelected bureaucrats, whose motivation stems from economic gain, as opposed to sovereign representation.[11]Chevron supporters argue that administrative agencies are better positioned to address the technical aspects of federal law,[12] and revoking such administrative power would negatively impact important federal policies and programs.[13]
II. Chevron Lite: Deference In Its Modern Form
While intense debate swirls regarding its future, the modern Doctrine is more bark than bite.[14] In recent years, when faced with the task of applying Chevron, the Supreme Court has diminished[15] or outright ignored the Chevron doctrine.[16] For lower courts, Chevron is still binding precedent, and the courts continue to apply it as intended.[17] Regardless of its perceived importance in the world of administrative law, the fact that lower courts’ application of the Doctrine varies considerably from the Supreme Court’s reflects the Court’s struggle to identify the Doctrine’s foundations and to specify its reach.[18] Thus, Supreme Court review of Chevron will prove vital to the continued efficient operation of courts on administrative law matters.
III. Loper Bright Enterprises
Loper Bright Enterprises v. Raimondo[19] presents the Court with a much-needed opportunity to resolve uncertainty surrounding Chevron. The case is scheduled to be addressed during the Supreme Court’s October 2023 term,[20] and a decision is expected during the first half of 2024.[21]
In 2020, New Jersey-based fishing company, Loper Bright Enterprises, and other Atlantic herring fishermen (collectively, “Loper Plaintiffs”) filed suit in the U.S. District Court for the District of Columbia.[22] The Loper Plaintiffs challenged a final rule and implementing regulations promulgated by the National Marine Fisheries Service (“NMFS”) that established processes for industry-funded monitoring in Atlantic herring fisheries.[23] The final rule was promulgated under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“MSA”), which was enacted to conserve domestic fisheries and other “aquatic resources.”[24] Under the MSA, NMFS was tasked with promulgating policies consistent with the MSA.[25]
The Loper Plaintiffs alleged that the rule promulgated by the NMFS violated both statutory and constitutional protections.[26] Specifically, the Loper Plaintiffs expressed concern for the economic costs such monitoring would place on the herring fleet.[27] Applying the Chevron doctrine, the district court ruled against the Loper Plaintiffs,[28] reasoning that “[e]ven if Plaintiffs’ arguments were enough to raise an ambiguity in the statutory text, the Court . . . would conclude that [NMFS’s] interpretation is a reasonable reading of the MSA.”[29]
The Loper Plaintiffs then appealed to the United States Court of Appeals for the D.C. Circuit.[30] In a divided panel, the appellate court deferred to the administrative agency’s interpretation of the MSA under the Chevron doctrine.[31] The Circuit’s opinion, authored by Judge Rogers, reasoned that the MSA does not provide a “wholly unambiguous answer . . . as to whether the [NMFS] may require industry-funded monitoring” and that the NMFS’s interpretation of the MSA to allow such monitoring was reasonable.[32] In doing so, the Court of Appeals set the stage for the Supreme Court’s Chevron showdown.
In its petition for writ of certiorari to the United States Supreme Court, the Loper Plaintiffs asked the Court to answer two questions: “(1) [w]hether, under a proper application of Chevron, the MSA implicitly grants NMFS the power to force domestic vessels to pay the salaries of the monitors they must carry,” and “(2) [w]hether the Court should overrule Chevron or at least clarify the statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”[33] In May 2023, the Supreme Court granted certiorari to the Loper Plaintiffs as to only the latter question.[34] The Court’s grant of certiorari resulted in a plethora of amicus curiae briefs filed in support of both the petitioners and respondents.[35] Interested parties include the American Cancer Society, Muscular Dystrophy Association, American Federation of Labor and Congress of Industrial Organizations, American Association for the Advancement of Science, Main Street Alliance, American Sustainable Business Council, National Resources Defense Council, and many others.[36]
IV. Deference Moving Forward
In a year filled with attacks on administrative law powers,[37] as the current Court seeks to narrow the scope of federal administrative authority,[38]Chevron’s future appears bleak.[39]
Regardless of the clamor associated with the Court’s upcoming decision, overturning Chevron will likely not spell the downfall of administrative law.[40] To echo the sentiments of many scholars, judges, and other legal professionals, Chevron, in its original form, has been defunct for a number of years.[41] Further, an aggressive reading and application of Chevron runs afoul of the separation of powers doctrine in the Constitution.[42] That being said, courts can very likely still comply with the Constitution and resolve statutory ambiguities in situations that would give rise to Chevron deference by utilizing traditional means of interpretation. In the words of Justice Scalia, “Chevron is . . . not a declaration that, when statutory construction becomes difficult, we will throw up our hands and let regulatory agencies do it for us.”[43] After all, “Chevron only applies when, after exhausting all of the tools of statutory construction, the statute remains ambiguous.”[44] Further, it has long been understood that “[t]hose who ratified the Constitution knew that legal texts [including federal statutes] would often contain ambiguities,” and federal “judicial power was understood to include the power to resolve these ambiguities over time.”[45]
Therefore, courts have long been understood to have both the constitutional power and the proper tools and resources to address statutory ambiguities through traditional statutory interpretation. Thus, in Loper Bright Enterprises v. Raimondo, the Court should strike down Chevron, thereby preserving principles of federal separation of powers, and proceed with traditional means of statutory interpretation.
[2]See Cass R. Sunstein, Chevron as Law, 107 Geo. L. J. 1613, 1615 (2019) (stating that Chevron “has a strong claim to being the most important case in all of administrative law.”); Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 Admin. L. Rev. 253, 254 (2014) (explaining how Chevron “is the Supreme Court’s leading statement about the division of authority between agencies and courts in interpreting statutes.”).
[3] Kent Barnett & Christopher Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1 (2017) (explaining that “the decision itself is one of the most cited Supreme Court decisions of all time” and that as of 2017, it “has been cited in more than 80,000 sources“).
[9] Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 Geo. J. L. & Pub. Pol’y 103, 110 (2018) (citing Chevron, 467 U.S. at 842–43) (summarizing the holding of Chevron).
[10]See Sunstein, supra note 2, at 1615 (noting that Chevron is “under siege” and “it may not live to see the age of forty”); Nathan D. Richardson, Deference is Dead, Long Live Chevron, 73 Rutgers Univ. L. Rev. 441, 443–44 (2021) (“Moreover, Chevron appears under threat. Prominent judges and academics . . . have called for its reconsideration and possible rejection.”).
[11]See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv L. Rev. 2118, 2150 (2016) (“In many ways, Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.”); Michael W. McConnell, Kavanaugh and The “Chevron Doctrine,” Stan. L. Sch. Blogs (Aug. 2, 2018), https://law.stanford.edu/2018/08/02/kavanaugh-and-the-chevron-doctrine/ (Chevron “raises the deep question of constitutional governance: whether fundamental political questions will be debated and resolved by representatives of the people, or by agencies whose loyalties almost always are ideological or economic interests.”). For a discussion of judicial criticism of Chevron, see Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring) (“[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (“Such a transfer [in authority] is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies.”). For an overview of legislative attacks against Chevron, see Jonathan R. Siegel, The Constitutional Case for Chevron Deference, 71 Vand. L. Rev. 937, 951–52 (2018).
[12]See Jeffrey. Pojanowski, Without Deference, 81 Mo. L. Rev. 1075, 1075 (2016) (“Many jurists and scholars see it [Chevron] as a salutary and natural outgrowth of administrative legal doctrine that recognizes the necessity of agencies’ technical expertise.”); Brief for American Cancer Society et al. as Amici Curiae Supporting Respondents at 4, Loper Bright Enters. v. Raimondo, 143 S. Ct. 2429 (2023) (No. 22-451) (“The competent and stable administration of these [federal] programs depends on the deep expertise of the agencies to which Congress has assigned the responsibility.”); Brief for Scholars of Administrative Law and the Administrative Procedure Act as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“Just as a court might ‘decide’ a question of law starting from a blank slate, a court equally fulfills that duty by looking to an agency’s interpretation of law and adopting it if it deems it reasonable.”).
[13]See Brief for Lawyers’ Committee for Civil Rights Under Law as Amici Curiae Supporting Respondents at 3, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“In the absence of agency rulemaking that addresses points on which underlying statutes are silent or purposely broad, our society’s ability to realize the benefits of the protections in this nation’s landmark civil rights statutes would be significantly impeded.”); Brief for National Resources Defense Council as Amici Curiae Supporting Respondents at 17, Loper Bright Enters., 143 S. Ct. 2429 (No. 22-451) (“By restraining judges from imposing their policy preferences on an agency, deference also promotes legal uniformity . . . .”).
[14]See Michael Herz, Chevron is Dead; Long Live Chevron, 115 Colum. L. Rev. 1867, 1870 (2015) (“For all the clamor, attention, and citations, Chevron has had less of an impact than this attention implies.”); Richardson, supra note 10, at 443 (“But at the Supreme Court level, Chevron now lacks the power and predictability it claims to have—and may once have had—though it probably never had the influence its reputation suggests.”).
[15]See Buffington v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021), cert. denied, 143 S. Ct. 14, 21 (2022) (Gorsuch, J., dissenting) (stating that an “aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely on it”); Kavanaugh, supra note 11, at 2151 (stating that “the Supreme Court itself has been reining in Chevron in the last few years”).
[16]See Richard J. Pierce, Jr., Is Chevron Deference Still Alive?, The Regul. Rev. (Jul. 14, 2022), https://www.theregreview.org/2022/07/14/pierce-chevron-deference/ (identifying recent decisions where the Supreme Court has “simply ignored Chevron”); Am. Hosp. Ass’n v. Becerra, 142 S. Ct. 1896 (2022) (utilizing “traditional tools of statutory interpretation” without citing Chevron); Becerra v. Empire Health Found., 142 S. Ct. 2354 (2022) (agreeing with HHS’s interpretation of a statute without citing Chevron); Barnett & Walker, supra note 2, at 4 (“Scholars and commenters . . . have noticed the Court’s treatment of Chevron as a doctrine to ignore, disparage, or distinguish.”).
[17]See Barnett & Walker, supra note 2, at 32 (explaining how circuit courts applied the Chevron framework 74.80% of cases in which it could apply).
[18] Sunstein, supra note 2, at 1657 (“Since Chevron, the Court has struggled both to specify the foundations of the decision and to limit its reach.”).
[20] Amy Howe, Supreme Court Will Consider Major Case on Power of Federal Regulatory Agencies, SCOTUSblog (May 1, 2023, 11:54 AM), https://www.scotusblog.com/2023/05/supreme-court-will-consider-major-case-on-power-of-federal-regulatory-agencies/.
[37]See Andrew Chung & John Kruzel, Federal Agency Powers in the Crosshairs at the US Supreme Court, Reuters (Jul. 5, 2023, 2:08 PM), https://www.reuters.com/legal/federal-agency-powers-crosshairs-us-supreme-court-2023-07-04/.
[39]See Pojanowski, supra note 12, at 1078 (“Skepticism about Chevron deference is not new, but hostile rumblings from the Supreme Court have grown in the past few Terms.”).
[40]See Pojanowski, supra note 12, at 1080 (“Abandoning Chevron may not, in fact, change the frequency and extent of judicial deference as much as Chevron’s critics hope or its supporters fear.”).
[41]See Herz, supra note 14, at 1870; Richardson, supra note 10, at 443; Pierce, supra note 16.
[42]See City of Arlington v. FCC, 569 U.S. 290, 312–13 (2013) (Roberts, C.J., dissenting) (“Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter, they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules.”); Michigan v. EPA, 576 U.S. 743, 762 (2015) (Thomas, J., concurring) (asserting that Chevron infringes on the Constitution’s separation of powers because it “is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, not administrative agencies”); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (stating that “Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design”); Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring) (discussing how “[t]he proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary”).
[43] Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting).
[44] Anthony Caso, Attacking Chevron: A Guide for Practitioners, 24 Chap. L. Rev. 633, 656 (2021).
[45] Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 119 (2015) (Thomas, J., concurring).
The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]
As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]
Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]
The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.
While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.
I. The Procedural Path
A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]
Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]
While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.
But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]
In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]
On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]
With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.
II. Regressive Originalism
Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.
The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.
As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]
The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]
Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.
But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]
In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]
The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]
The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]
Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.
In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]
In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]
Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.
III. Manipulation of Political Accountability
The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]
This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.
But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.
The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]
The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]
But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.
The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.
Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]
But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.
In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.
The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.
Conclusion
While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.
This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.
The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.
Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.
*. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments. ↑
. See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865. ↑
. See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129. ↑
. Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting). ↑
. Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”). ↑
. Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”). ↑
. See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))). ↑
. SeeHarper III, 886 S.E.2d at 412–14 (collecting cases). ↑
. See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021). ↑
. See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”). ↑
. See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009). ↑
. See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”). ↑
. See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”). ↑
. Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)). ↑
. Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV). ↑
. As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id.↑
. Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”). ↑
. Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III). ↑
. For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023). ↑
. CompareHarper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional). ↑
. Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id.↑
. See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260). ↑
. See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402. ↑
. Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)). ↑
. Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02. ↑
. See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020). ↑
. For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109. ↑
. Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)). ↑
. Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29. ↑
. Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)). ↑
. See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary). ↑
. See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001). ↑
. See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”). ↑
This October, the Supreme Court will review Murray v. UBS Securities, LLC—a case that created a circuit split involving the Sarbanes-Oxley Act’s (“SOX”) whistleblower anti-retaliation provision.[1] Section 1514A of SOX prohibits employers of publicly traded companies from adversely affecting the employment conditions of employees who report fraudulent business activities.[2] Congress enacted this provision to give whistleblowing employees of public companies similar protections to those held by whistleblowing federal employees.[3] As noted by the Act’s sponsor, “this distinction does not serve the public good,” especially because “an unprecedented portion of the American public invest[s] in these companies and depend[s] upon their honesty.”[4]
Whistleblower protections for federal employees are codified in the Whistleblower Protection Act (“WPA”) of 1989, which prohibits agencies from retaliating against federal employees who report unethical agency activities.[5] In such an event, the WPA calls for corrective action against the agency if the whistleblowing employee demonstrates that his or her report was a “contributing factor” in the retaliatory action.[6] “Contributing factor” is defined as “any disclosure that affects an agency’s decisions to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.”[7] Proof that the agency acted with retaliatory intent is not necessary.[8] Congress reasoned that “[r]egardless of the official’s motives, personnel actions against employees should quite [simply] not be based on protected activities such as whistleblowing.”[9] The burden of proof for the “contributing factor” element of a WPA claim was intended to be light:
“The words ‘a contributing factor’ mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a ‘significant,’ ‘motivating,’ ‘substantial,’ or ‘predominant’ factor in a personnel action in order to overturn that action.”[10]
The WPA nevertheless allows agencies to avoid corrective action if “after a finding that a protected disclosure was a contributing factor, the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.”[11]
This “contributing factor” burden-shifting framework appeared again in 2000 when Congress enacted the AIR21 Whistleblower Protection Program to protect whistleblowing employees connected to U.S. aviation operations.[12] Section 1514A of SOX was passed two years later to account for whistleblowing employees of publicly traded companies.[13] It explicitly applies the burden of proof standard set forth in AIR21—i.e., the “contributing factor” burden-shifting framework.[14]
The elements of a prima facie § 1514A claim include: (1) the employee engaged in protected activity or conduct; (2) the employer knew of the employee’s protected activity; (3) the employee suffered an unfavorable personnel action; and (4) the employee’s protected activity was a contributing factor in the adverse action.[15] Once the employee establishes these elements, the employer may skirt liability by asserting “clear and convincing evidence” that the adverse action would have occurred absent the protected conduct.[16]
In Murray, the Second Circuit diverged from the majority’s standard by adding a sub-requirement to the “contributing factor” element: retaliatory intent.[17] The plaintiff in that case was terminated after he reported fraudulent business practices to his supervisor.[18] The former employee sued his employer under § 1514A, but the appellate court denied relief because the employee failed to demonstrate that his termination was ordered with retaliatory intent in response to his report.[19]
The court extrapolated its “retaliatory intent” requirement through a flawed textual analysis of § 1514A(a). The provision states that employers of publicly traded companies may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” the employee’s lawful whistleblowing.[20] Even though the plaintiff in Murray was discharged because he reported fraudulent business activities—an action explicitly prohibited in the provision’s language—the court focused its analysis on the plain meaning of “discriminate.”[21] It opined:
“To ‘discriminate’ means ‘[t]o act on the basis of prejudice,’ which requires a conscious decision to act based on a protected characteristic or action.
The statute thus prohibits discriminatory actions caused by—or ‘because of’—whistleblowing, and actions are ‘discriminat[ory]’ when they are based on the employer’s conscious disfavor of an employee for whistleblowing. A discriminatory action ‘because of’ whistleblowing therefore necessarily requires retaliatory intent—i.e., that the employer’s adverse action was motivated by the employee’s whistleblowing. The plain meaning of section 1514A’s statutory language thus compels our conclusion that retaliatory intent is required to sustain a SOX anti-retaliation claim.”[22]
This 2+2=5 analysis is overreaching and misguided. First, the court injects a requisite motive into the ordinary meaning of “discriminate” where one does not otherwise exist.[23] Second, the court ignores the provision’s syntax. The term “discriminate” is embedded in a catchall phrase—“or in any other manner discriminate”—attached to the end of a disjunctive list.[24] Under the principle of ejusdem generis, the phrase is intended to account for the unenumerated adverse acts that employers may take.[25] “Discriminate” is not an indispensable requirement; it may characterize the class of prohibited actions, but it does not demand malicious motivation from the employer.[26]
To further support its “retaliatory intent” requirement, the court circularly pointed to its analysis of the Federal Railroad Safety Act (“FRSA”)[27] in Tompkins v. Metro-North Commuter Railroad Company.[28] Because FRSA and § 1514A of SOX use similar language, the court reasoned that they should be interpreted identically.[29] Since the Tompkins court extracted a “retaliatory intent” requirement from FRSA, the Murray court also extracted a “retaliatory intent” requirement from § 1514A.[30]
However, in Bechtel v. Administrative Review Board, the Second Circuit directly contemplated the elements of a § 1514A claim.[31] In that case, the court applied the majority’s standard and did not require proof of retaliatory intent.[32] Rather than follow this far more analogous precedent, the Murray court criticized Bechtel for failing to “account for the statute’s explicit requirement that the employer’s conduct be ‘discriminat[ory].’”[33] As previously discussed, this point is misguided and overreaching.
The Supreme Court’s decision could significantly impact the public market and whistleblower litigation. Requiring plaintiffs to prove retaliatory intent adds another barrier to whistleblower protections, which may deter employees from reporting fraudulent business activities. The SOX Act was intended to statutorily “encourage and protect those who report fraudulent activity that can damage innocent investors in publicly traded companies.”[34] The majority’s standard advances the objective; it gives employees the confidence to report fraudulent business activities by increasing their chances of recovery through litigation, should their reports adversely affect their employment.[35] In fact, “[s]ince the federal government switched the burden of proof in whistleblower laws, the rate to prevail on the merits has increased from 1–5% annually, which institutionalizes a chilling effect, to 25–33%, which gives whistleblowers a fighting chance to successfully defend themselves.”[36]
The SOX anti-retaliation provision mends the “patchwork and vagaries of current state laws” by giving employees of publicly traded companies nationwide whistleblower protections.[37] As a remedial statute, it should be liberally construed in the plaintiff’s favor to help advance its beneficial purpose.[38] The majority’s plaintiff-friendly standard is consistent with this notion. Upon review of the Second Circuit’s decision in Murray, the Supreme Court should rid the “retaliatory intent” requirement and instead apply the majority’s standard.
[1]See Murray v. UBS Sec., LLC, 43 F.4th 254 (2d Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023).
[3] 148 Cong. Rec. S7420 (daily ed. July 26, 2002) (“Although current law protects many government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors.”).
[23]See Haley K. Hurst, Resolving the SOX Act Circuit Split: Contributing Factor, Not Retaliatory Intent 16–17 (May 4, 2023) (unpublished manuscript) (on file with author). The plain meaning of “discriminate” carries a neutral connotation and does not contemplate the actor’s consciousness. See, e.g., Discriminate, The Oxford English Dictionary (2d ed. 1989) (defining “discriminate” as “to distinguish, differentiate”).
[24]See 18 U.S.C. § 1514A(a) (emphasis added); see also 1A Norman Singer & Shambie Singer, Sutherland Statutes and Statutory Construction § 21:14 (7th ed.), Westlaw (database updated 2022).
[25]See 2A Singer & Singer, supra note 24, § 47:17; see also Brief for the United States as Amicus Curiae Supporting Petitioner at 15, Murray, 143 S. Ct. 2429 (No. 22-660) [hereinafter U.S. Brief].
[34] 148 Cong. Rec. S7420 (daily ed. July 26, 2002).
[35]Whistleblowers and Job Safety: Are Existing Protections Adequate to Build a Safer Workplace?: Hearing on Examining Workers’ Memorial Day, Focusing on if Existing Private Sector Whistleblower Protections are Adequate to Ensure Safe Workplaces Before the Subcomm. on Emp. & Workplace Safety of the S. Comm. on Health, Educ., Lab. & Pensions, 113th Cong. 32 (2014) (statement of Thomas Devine, Legal Director, Government Accountability Project).
Prior to 2008, gun-rights advocates referred to the Second Amendment as a “second-class right” with courts relying on a militia-centric interpretation articulated by the Supreme Court of the United States in United States v. Miller.[1] Nearly seventy years after Miller, the Supreme Court radically changed its interpretation of the Second Amendment in District of Columbia v. Heller.[2] In Heller, the right to keep and bear arms in one’s home for purposes of self-defense became the core of the Second Amendment, with the Supreme Court applying this right to the states two years later in McDonald v. City of Chicago.[3] Finally, last year, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court expanded the Second Amendment’s reach post-Heller and McDonald, holding “that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”[4]
Bruen significantly altered the landscape of the Second Amendment, not only by expanding the reach of the right to keep and bear arms beyond the home, but also by rejecting the legal standard previously used to decide Second Amendment cases.[5] Under Bruen, the new two-step analysis for Second Amendment cases begins with a presumption that if the plain text of the Second Amendment includes an individual’s conduct, then the Constitution protects that conduct.[6] Then, the government bears the burden of justifying its proposed regulation “by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”[7] When deciding Bruen, the Supreme Court focused its “historical analysis” on the firearm regulatory practices of the Founders in 1791 and the Reconstruction generation in 1868 because these are the relevant time periods when the Second and Fourteenth Amendments were written.[8] Specifically, the Supreme Court determined that the firearm regulations of the Twentieth Century put forth by the respondents were simply too recent to constitute a historical tradition and rejected this evidence, relying instead on the common understanding of firearms regulation at the time of the Founding and Reconstruction.[9]
One year post-Bruen, the landscape of the Second Amendment is primed for a novel legal issue that the Supreme Court evaded in Heller, McDonald, and Bruen, continuously passing the ball through dicta and concurrences—the right to keep and bear arms as applied to felons.[10] Born out of a series of high profile assassinations, the federal government’s regulation of a felon’s ability to possess firearms began as recently as the Gun Control Act of 1968, which was expanded by the Brady Handgun Violence Prevention Act of 1994, also known as the “Brady Bill.”[11] Today, a provision of the Brady Bill, 18 U.S.C. § 922(g)(1), makes it “unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce, any firearm or ammunition.”[12] Federal courts are split on the validity of § 922(g)(1) after defendants began arguing that federal “felon-in-possession” laws violate the Second Amendment under Bruen.[13]
On June 6, 2023, the Third Circuit en banc determined that § 922(g)(1) violated the Second Amendment as applied to a non-violent offender.[14] Yet just four days prior, the Eighth Circuit ruled in the opposite, finding no constitutional violation.[15] Both Circuits relied on the two-step “historical foundations” analysis created in Bruen, yielding extensively disparate outcomes.[16] Prior to Bruen, in Heller, the Supreme Court explicitly included dicta deferring the analysis of whether the Second Amendment applied to felons.[17] In Bruen, the majority opinion did not address the issue at all.[18] In fact, the concurrences and the dissent in Bruen explain that the majority opinion need not include an analysis of federal “felon-in-possession” laws because they are “presumptively lawful.”[19]
On the contrary, government regulations prohibiting felons from possessing firearms are as recent as the historical evidence put forth by the respondents in Bruen, which the Supreme Court deemed too modern for “consisten[cy] with this Nation’s historical tradition of firearm regulation.”[20] As discussed above, the federal government only began regulating the firearm possession of felons in 1968—decades before the Reconstruction generation and more than a century after the Founding.[21] Further, the “historical tradition” that courts, such as the Eighth Circuit, are beginning to rely on to deny felons their Second Amendment rights is disturbing, including historical regulations that categorically exclude Black and Native Americans, as well as certain religious minorities, from possessing firearms.[22] Specifically, the Eighth Circuit recognized that regulations barring certain races from the right to keep and bear arms “would be impermissible today under other constitutional provisions,” yet included these regulations in its historical tradition analysis regardless.[23] Even the language of “law-abiding” citizen used throughout Bruen is ambiguous, as the sheer breadth and scope of what constitutes a “felony” has dramatically changed since the time of the Founding.[24]
As the number of Bruen challenges grow, it is time for the Supreme Court to define explicitly whether the Second Amendment extends to felons; however, this issue illuminates a Pandora’s box of sub-issues, including, but not limited to, (1) the differences between violent and non-violent felonies, (2) the disconnect between a state felony and a federal felony, (3) the length of time between the original felony conviction and the § 922(g)(1) charge, (4) the amount of time actually served in a jail or prison compared to a purely probationary sentence, and (5) the record of the particular felon.[25] The Supreme Court’s staunch devotion to originalism and the dead-hands of the Founders has brought the Supreme Court to a precipice.[26] Either the Second Amendment is an unmitigated right provided to all Americans based entirely on the historical traditions of the Nation, or it is not.
[1]United States v. Miller, 307 U.S. 174, 178 (1939).
[2]District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008).
[3]Heller, 554 U.S. at 577–78; McDonald v. City of Chicago, 561 U.S. 742, 748 (2010).
[4]New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2122 (2022) (emphasis added).
[9]Id. at 2138 (“[A]part from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.”).
[10]Range v. Att’y Gen. of the United States, 69 F.4th 96, 98 (3d Cir. 2023).
[11] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213; Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (later codified as amended at 18 U.S.C. § 922).
[12] The federal definition of a “felon” is broader than many state definitions, applying where the potential sentence is more than two years for misdemeanors and more than one year for felonies. 18 U.S.C. § 922(g)(1); 18 U.S.C. § 921(a)(20)(B).
[13] Albert W. Alschuler, Do Convicted Felons Have a Constitutional Right to Bear Arms?, Verdict Justia (June 21, 2023), https://verdict.justia.com/2023/06/21/do-convicted-felons-have-a-constitutional-right-to-bear-arms.
[14] Bryan Range pleaded guilty in 1995 to making a false statement to obtain food stamps, violating Pennsylvania law. Range, 69 F.4th at 98. Range was sentenced to three years’ probation, although his misdemeanor carried a maximum sentence of five years’ imprisonment. Id. Range sought to purchase a firearm for hunting and for self-defense in the home. Id.
[15] Edell Jackson had two convictions for sale of a controlled substance in the second degree from 2011 and 2012. United States v. Jackson, 69 F.4th 495, 501 (8th Cir. 2023). Jackson received a 78-month sentence for the first conviction and a 144-month sentence for the second conviction. Id. Interestingly, the Eighth Circuit cited approvingly the paneled Third Circuit’s previous decision in Range that the above-referenced en banc Third Circuit overruled. Id.
[16] Alschuler, supra note 13; see also Zak Goldstein, Federal Third Circuit Finds Felon in Possession of Firearm Laws Unconstitutional as Applied to Old, Non-Violent Offenses, Goldstein Mehta, LLC, Blog (June 7, 2023), https://goldsteinmehta.com/blog/federal-third-circuit-finds-felon-in-possession-of-firearm-laws-unconstitutional-as-applied-to-old-non-violent-offenses#.
[20] Michael Luo, Felons Finding It Easy to Regain Gun Rights, New York Times (Nov. 13, 2011), https://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html; United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309 (S.D. Miss. June 28, 2023) (order dismissing case).
[21] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213.
[24] Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the U.S., 2002 Wis. L. Rev. 1045, 1060 (2002).
[25]Bullock, 2023 WL 4232309, at *71–75; see also Brian Doherty, Another Judge Chips Away at Laws Barring Felons From Owning Guns, Reason (June 29, 2023, 11:15 AM), https://reason.com/2023/06/29/another-judge-chips-away-at-laws-barring-felons-from-owning-guns/.
For corporate debtors that submit to the bankruptcy process, the Bankruptcy Code (the “Code”) provides significant benefits to the “honest, but unfortunate debtor” that cannot fully perform its debt obligations.[1] In a case filed under Chapter 11 of the Code, a corporate debtor may file a plan of reorganization with the bankruptcy court that proposes how the debtor intends to restructure its debts owed to each class of creditors.[2] Upon confirmation of a plan, the corporate debtor then receives a discharge from any debt that arose prior to the bankruptcy court’s confirmation.[3] Included in that plan of reorganization, corporate debtors may attempt to include provisions that extend third-party releases to non-debtors that have a direct impact on the debtor’s restructuring.[4] In other words, a plan may attempt to use the bankruptcy process to extinguish present or future claims held by various third parties against entities that are associated with the debtor. Where the impaired class or classes of creditors affirmatively consent to the binding plan, courts typically confirm these releases.[5] But what happens when a third-party creditor votes against the plan and instead seeks to exercise their constitutional right to have their day in court and pursue a claim directly against the non-debtor? The United States Supreme Court may soon address whether these so-called “non-consensual third-party releases” are permitted by the Code.
While third-party releases are expressly permitted in a plan of reorganization in asbestos cases,[6] circuits have been split for decades about whether this practice is permitted by the Code outside of the asbestos context. The majority of circuits, including the Second, Third, Fourth, Sixth, Seventh, and Eleventh permit third-party releases,[7] albeit in rare or extraordinary circumstances and when “certain factors” are met.[8] Conversely, the Fifth and Tenth Circuits categorically bar these releases based on Section 524(e) of the Code.[9] That provision provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.”[10]
Following a petition for a writ of certiorari last month, the Supreme Court has a long-awaited opportunity to resolve this circuit split. In Highland Capital Management, L.P. v. NexPoint Advisors, L.P.,[11] the Fifth Circuit, following circuit precedent, held that Section 524(e) of the Code barred the debtor from releasing certain non-debtors from liability in its chapter 11 plan of reorganization.[12] Thus, the debtor’s attempt to exculpate certain non-debtors from liability was precluded by the Fifth Circuit’s steadfast interpretation of Section 524(e).[13] In its petition filed in January, the reorganized debtor, Highland Capital Management, urges the Supreme Court to adopt the majority position, contending that Section 524(e) is “simply a saving clause” and that the plain language of Section 524(e) “simply states that the discharge of a debtor’s liability on a debt does not itself affect any other creditor’s liability on that same debt.”[14] Thus, according to the debtor, Section 524(e), by its plain language, does not preclude a bankruptcy court from confirming a plan containing non-debtor exculpations. Notably, NexPoint Advisors, the respondent in that case, also filed a petition for a writ of certiorari last month, asking the Supreme Court to use this case as a vehicle to “restore uniformity among the circuits”[15] and put an end to this “abus[ive]” practice.[16] While the debtor seeks review of non-debtor exculpations, NexPoint Advisors points out that “the fact that this case involves third-party exculpations that limit liability to gross negligence or willful misconduct, rather than third-party releases that eliminate liability altogether, does not diminish the importance of the issue or make this case a faulty vehicle.”[17]
NexPoint Advisor’s argument is well-founded. While the circuits that do permit third-party releases may do so in limited or extraordinary circumstances,[18] one bankruptcy judge recently noted that “[a]lmost every proposed Chapter 11 Plan that I receive includes proposed releases.”[19] From sexual-abuse scandals[20] to the crippling opioid epidemic,[21] it has become commonplace for a corporate debtor to file a plan of reorganization in which non-debtors receive a release from liability in exchange for a pecuniary contribution to the debtor’s reorganization. Accordingly, this case provides the Supreme Court an opportunity to resolve a contentious issue that has meaningful practical implications. For example, the various interpretations of Section 524(e) among the circuits increases the likelihood for corporate debtors to forum shop in search of a bankruptcy court that endorses third-party releases contained in a plan of reorganization.[22] Moreover, the lack of clarity surrounding the permissibility of third-party releases and when they are integral to the debtor’s restructuring leads to uncertainty for all parties involved when negotiating a plan of reorganization. Therefore, the time has come for the Supreme Court to determine what Section 524(e) actually means and this case welcomes that determination.
[1] John M. Czarnetzky, The Individual and Failure: A Theory of the Bankruptcy Discharge, 32 Ariz. St. L.J. 393, 412 (2000).
[2] Michael S. Etkin & Nicole M. Brown, Third Party Releases?–Not So Fast! Changing Trends and Heightened Scrutiny, 29 AIRA J. 22, 22 (2015).
[4] Dorothy Coco, Third-Party Bankruptcy Releases: An Analysis of Consent Through the Lenses of Due Process and Contract Law, 88 Fordham L. Rev. 231, 232 (2019); see also Etkin & Brown, supra note 2, at 22 (“A debtor might seek to extend third party releases to co-debtors, officers, directors, lenders, parents, guarantors, sureties, or insurance carriers where those parties could assert post-confirmation indemnification claims against the debtor, or where the non-debtor party is a potential source of funding for the plan of reorganization.”).
[14] Brief for a Writ of Certiorari at 4, Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No. 22-631 (petition for cert. filed Jan. 5, 2023).
[15] Brief for Respondents at 2, Highland Capital Management, L.P. v. NexPoint Advisors, L.P., No 22-631 (petition for cert. filed Feb. 10, 2023).
In the early hours of the morning on January 1st, 2017, a gunman opened fire in a nightclub in Istanbul, Turkey.[1] The attack, for which ISIS claimed responsibility, killed 39 people and left nearly 70 others injured.[2] Six years later, a lawsuit related to the massacre has made its way before the United States Supreme Court, threatening to hold large tech companies accountable and shake up the way they run their businesses.[3]
Shortly after the Istanbul attack, American relatives of Nawras Alassaf, one of the 39 people killed, filed a complaint in the Northern District of California against Twitter, Google, and Facebook, alleging violations of the Anti-Terrorism Act (“ATA”)[4]. In the complaint, the Plaintiffs argued that the Internet companies played a central role in ISIS’s growth by permitting the organization to “recruit members, issue terrorist threats, spread propaganda, instill fear, and intimidate civilian populations.”[5] The Plaintiffs claim that, despite having the ability to remove and review content posted by users, Twitter, Google, and Facebook have allowed terrorist organizations like ISIS to use their platforms for many years with “‘little or no interference.’”[6] The issue now before the Supreme Court is whether these Internet giants may be held liable for aiding and abetting international terrorism by failing to remove pro-ISIS content from their websites.[7]
This case is one of two currently before the Supreme Court on whether Internet companies can be held accountable for inflammatory content posted by users.[8] The second case, similar in nature to the first, is a lawsuit against Youtube brought “by the family of an American woman killed in a Paris attack by Islamist militants.”[9] While the cases both bring claims under the ATA, the second case raises an additional and controversial scope question regarding Section 230 of the Communications Decency Act, which provides certain legal immunity to Internet companies.[10] Should the Supreme Court rule in the favor of the Internet companies in the case related to the Istanbul attacks, it might avoid tackling the stickier issue of Section 230 required by the second case.[11]
The Communications Decency Act (“the Act”) was enacted by Congress in 1996[12], “when websites were young and perceived to be vulnerable.”[13] Section 230 of the Act ensured that website companies “would not get bogged down in lawsuits if users posted material to which others might object, such as bad restaurant reviews or complaints about neighbours.”[14] The relevant provision states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[15] Rather than risk “chilling free speech, Congress ‘made a policy choice … not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.”[16]
In passing Section 230, Congress sought “‘to empower interactive computer service providers to self-regulate.’”[17] However, as the Internet has evolved over the last thirty-plus years, cases like the two currently before the Supreme Court highlight the issues that come with allowing Internet companies to self-regulate. As the current cases suggest, many of these issues arise when Internet companies take a minimalist approach to self-regulation and allow users to post controversial content with “‘little or no interference.’”[18] Should the Supreme Court decide to restrict the scope of Section 230, tech companies could potentially be held liable for harm caused by content posted by users of their platforms, such as propaganda posted by terrorist organizations. It is not difficult to imagine how such a restriction could result in an onslaught of litigation and cause detrimental financial burdens for these companies.
After hearing oral arguments on February 22nd and 22rd of this year, the Court remains uncertain about whether it will reach the Section 230 issue with the cases at hand.[19] Justice Amy Coney Barrett, for example, “suggested that the [law]suit . . . lacks the kind of facts” necessary to hold the Internet companies liable under the ATA, and Justice Neil Gorsuch said he did not see how the Plaintiffs’ complaint “lines up” with the elements required under the ATA statute.[20] If the Court dismisses the lawsuits due to these ATA-related shortcomings, it could “avoid” addressing Section 230 altogether.[21]
However, with the public becoming increasingly critical of the legal immunity afforded to large tech companies under Section 230,[22] it will be interesting to see if the Supreme Court will choose to narrow the scope of the current law. Additionally, President Biden and former President Trump have each called for an overhaul of Section 230, suggesting that the issue before the Court will be of particular interest heading into the 2024 presidential election.[23] Given the heightened public interest in the scope of the Act, it remains possible that the Court will confront Section 230 again in the near future, even if the Court fails to reach the issue in the current cases.
[1]Istanbul New Year Reina Nightclub Attack ‘Leaves 39 Dead’, BBC News (Jan. 1, 2017, 4:03 AM), https://www.bbc.com/news/world-europe-38481521.
[2] Doreen Mccallister, ISIS Claims Responsibility in Turkish Nightclub Attack; U.S. Man Among Wounded, NPR (Jan. 2, 2017), https://www.npr.org/sections/thetwo-way/2017/01/02/507848348/isis-claims-responsibility-in-turkish-nightclub-attack-u-s-man-among-the-wounded.
[3] Andrew Chung & John Kruzet, U.S. Supreme Court Raises Doubts About Suit Against Twitter Over Istanbul Massacre, Reuters, https://www.reuters.com/legal/us-supreme-court-weighs-suit-against-twitter-over-istanbul-massacre-2023-02-22/ (Feb. 22, 2023, 4:51 PM).
[4] Gonzalez v. Google LLC, 2 F.4th 871, 879, 883 (9th Cir. 2021).
[7] Jessica Gresko & Mark Sherman, Supreme Court Seems to Favor Tech Giants in Terror Case, AP (Feb. 22, 2023), https://apnews.com/article/us-supreme-court-technology-crime-business-internet-6e4551a3f39461e77a82ff577e24e6e7.
[9]US Supreme Court Weighs Suit Against Twitter Over 2017 Istanbul Massacre, The Economic Times, https://economictimes.indiatimes.com/tech/technology/us-supreme-court-weighs-suit-against-twitter-over-2017-istanbul-massacre/articleshow/98153645.cms (Feb. 22, 2023, 5:13 PM).
[13]What is Section 230? A Law Regulating Web Communications Comes Before the Supreme Court, The Economist (Feb. 20, 2023), https://www.economist.com/the-economist-explains/2023/02/20/what-is-section-230?utm_medium=cpc.adword.pd&utm_source=google&ppccampaignID=17210591673&ppcadID=&utm_campaign=a.22brand_pmax&utm_content=conversion.direct-response.anonymous&gclid=EAIaIQobChMIls2n4oa-_QIVUP7jBx0CBAaREAAYASAAEgJcqvD_BwE&gclsrc=aw.ds.
Should corporations be held to the same standard of legal knowledge as independent creators during copyright registration? As of now, the Supreme Court says yes.
United States copyright law is the means by which artists and creators receive property rights for their work.[1] Accordingly, all creators should have equitable access to the copyright system. However, copyright law is complex and “often esoteric.”[2] With this in mind, in 2008 Congress enacted a safe-harbor provision within the copyright registration statute “[t]o prevent intellectual property thieves from exploiting [mistakes in registration] . . . unless the mistake was knowingly made and the inaccuracy, if known, would have caused the Register of Copyrights to refuse the registration.”[3] The text of the copyright registration statute states that “[a] certificate of registration satisfies the requirements of this section . . . regardless of whether the certificate contains any inaccurate information, unless the inaccurate information was included on the application with the knowledge it was inaccurate.”[4]
In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., decided earlier this year, Unicolors sought “a single [copyright] application seeking registration for 31 separate works despite a Copyright Office regulation that provides that a single application may cover multiple works only if they were “included in the same unit of publication.””[5] The District Court determined that Unicolors violated the regulation because they did not know of the “single unit of publication” requirement, but their registration remained valid because of the safe-harbor provision.[6] The Ninth Circuit held that “the safe harbor excuses only good-faith mistakes of fact, not law. Unicolors had known the relevant facts, so its knowledge of the law) or lack thereof) was irrelevant.”[7]
Subsequently, The Supreme Court reversed the Ninth Circuit, holding that both mistakes of fact and mistakes of law qualify under the safe harbor provision.[8] Unicolors effectively violated the copyright registration statute through a mistake of law.[9] The Court found that “nearby statutory provisions help confirm that here ‘knowledge’ refers to knowledge of the law as well as the facts.”[10] The Court reasoned that this is “especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes.”[11]
It is a good idea to limit barriers to entry to the copyright system for individual artist and other creators. By not allowing mistakes of law to interfere with a creator’s copyright registration, those without legal training can navigate the copyright registration system without a lack of knowledge sabotaging their creative endeavors. However, the Court fails to address a key issue here: corporations should be and are far more legally sophisticated than independent creators. If one of the intentions of this legislation is to forgive those who are not legally skilled,[12] then why is the sophistication of the parties not a factor?
Mistakes of law are not typically an excuse for noncompliance.[13] In his dissent, Justice Thomas noted that “an actual-knowledge-of-law standard . . . is virtually unprecedented except in criminal tax enforcement.”[14] Additionally, even in the event mistakes of law are an excuse, the sophistication of a party may be considered relevant. For example, the 2nd Circuit held in D.C. Comics Inc. v. Mini Gift Shop that “[t]he level of sophistication of the defendant in business is an entirely proper means of determining whether or not his [copyright] infringement was innocent.”[15]
Improving access to the copyright system by forgiving the mistakes of those who do not have the legal ability to navigate is a good thing. However, by allowing a corporation to be held to the same standard as a pro se artist or other creator, the Court’s decision potentially encourages purposefully negligent conduct by giving a license to corporations to not know the law when registering their copyrights. Parties with means need to be held to an appropriate standard, which should include, at a minimum, knowing what the legal rules surrounding copyright registration are. To do otherwise undermines the purpose of the safe harbor provision: reasonable diligence on behalf of those seeking registration.
“The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.”[1] That is how Chief Justice Marshall described the rule of lenity in United States v. Wiltberger.[2] The doctrine is rooted in seventeenth-century England, where it arose to counteract the increasingly widespread imposition of the death penalty for felonies.[3] The rule traveled to America, and today, courts typically justify the rule on three grounds: (1) fair notice to the defendant, (2) separation of powers, and (3) a presumption in favor of liberty.[4]
Today’s rule of lenity is far removed from its English origin. Though it remains a tool of statutory construction, it is now employed “at the end of the process of construing what Congress has expressed,”[5] making it difficult to conceptualize as a principle of strict construction. And even if its utility—as a tiebreaker reserved for instances of “grievous ambiguity”[6]—is extremely limited, it is nonetheless difficult to apply.
This Article argues that we can avoid that difficulty by excluding certain criminal statutes from the rule’s grasp altogether. In particular, this Article claims that courts erred by applying the rule of lenity to the First Step Act—a statute governing whether already-sentenced criminals are eligible for resentencing.[7] Part I discusses the history of the rule of lenity in England and argues that the rule strictly construed criminal statutes to frustrate—not discern—legislative intent. Part II considers the rule of lenity as it is applied today and argues that its placement at the end of the interpretive process is incompatible with the rule as conceived in England. Part III concludes that there are certain criminal statutes to which no rationale for the rule of lenity applies and that the rule of lenity should therefore not be used when interpreting such statutes.
I. A History of Lenity
Courts and scholars generally accept that the rule of lenity arose as a response to the severity of English penal law—and specifically, laws carrying the death penalty.[8] Such laws were commonplace. Sir William Blackstone noted that it was “difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures.”[9] Although occasionally the relative mercy of “transportation”—i.e., an arrangement by which the criminal would voluntarily leave the country[10]—might excuse a robber from execution, the death penalty remained pervasive.[11]
The rule of lenity took form against this backdrop. It is received wisdom that the rule of lenity can be traced to legal developments surrounding the benefit of clergy.[12] That privilege provided for the “[e]xemption of the persons of clergymen from criminal process before the secular judge” and could be claimed either at the time of arraignment or after conviction.[13] The benefit of the clergy was once limited to those who had the “habitum et tonsuram clericalem”—that is, the “clerical habit and tonsure.”[14] But eventually, the benefit was extended to “every one that could read,” though he be “neither initiated in holy orders, nor trimmed with the clerical tonsure.”[15] Over time, the benefit became widespread, as “learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly.”[16]
Perhaps because it was never meant to extend so far, or perhaps as a favor to clergy dismayed at the loss of this once-exclusive privilege,[17] the benefit of clergy was gradually limited by statute. In the late fifteenth century, a statute was enacted that permitted a layman to use the benefit only once, whereupon he would be branded.[18] And it appears that one of the earlier instances of withdrawing the benefit of clergy from an offense altogether was in 1496, when a statute was passed providing that “if any layperson hereafter . . . murder their lord, master, or sovereign immediate, that they hereafter be not admitted to their clergy.”[19] Instead, that person would “be put in execution as though he were no clerk.”[20] That practice of removing the benefit of clergy from specific offenses continued, until, at the time of Blackstone, 160 felonies were statutorily exempted from the benefit of clergy.[21] For those crimes from which the benefit of clergy was withdrawn, the death penalty was no longer easily avoidable.[22]
The classic narrative is that the rule of strictly construing penal statutes was the courts’ response to the widespread elimination of the benefit of clergy.[23] Whatever the exact mechanics of the rule’s genesis, it was “firmly established” by the mid-seventeenth century.[24] Thus, while the benefit of clergy itself was completely abolished in 1827,[25] the rule of lenity had already taken on a life of its own. But while the rule of lenity, and even its impetus, may be straightforward, its exact justification remained unclear. Was it a good-faith attempt of courts to apply the intent of the legislature, coupled with a disbelief that the legislature could truly desire its strict laws to be liberally applied? Or was it an instance of judicial obstruction, of courts hampering—by technicality—a legislature that meant what it said?
History tends to support the latter. The debate is nicely framed by comparing the two most-cited sources as to lenity’s origins: Sir Peter Benson Maxwell and Professor Livingston Hall.[26] Maxwell was among the first to explicitly link the rule of lenity to the benefit of clergy, and he described the rule of lenity as one faithful to legislative intent.[27] According to Maxwell, the rule was based on the “reasonable expectation that, when the Legislature intends so grave a matter as the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers, and privileges,” it “will express [its intention] in terms reasonably plain and explicit.”[28] Thus, in Maxwell’s view, the rule of lenity is also constrained by the legislature’s intent. Maxwell’s lenity did not allow “the imposition of a restricted meaning on the words, for the purpose of withdrawing from the operation of the statute a case which falls both within its scope and the fair sense of its language,” because that “would be to defeat, not to promote, the object of the statute.”[29] In short, “no construction is admissible which would sanction an evasion of an Act.”[30]
Hall thought the rule of lenity served a different purpose. He described the rule as an offspring of a “conflict . . . between the legislature on the one hand and courts, juries, and even prosecutors on the other.”[31] The legislature, either from “inertia” or “pressure from property owners,” pursued “a policy of deterrence through severity,” while the courts “tempered this severity with strict construction carried to its most absurd limits.”[32] In other words, the courts were not using the rule of lenity to determine the legislature’s intent, but rather in direct opposition to whatever policy the legislature was pursuing. Simply, it was a “veritable conspiracy for administrative nullification.”[33]
Hall’s account of the rule of lenity originating as a tool to counteract the legislature’s purpose appears to be the prevailing one.[34] It also seems more historically grounded than Maxwell’s theory of the rule of lenity as a means of effectuating the legislature’s purpose. To start, there is little evidence that the legislature ever intended any of its statutes to be narrowed to oblivion. English legal reformer Samuel Romilly observed that “[t]here probably never was a law made in this country which the legislature that passed it did not intend should be strictly enforced.”[35] For support, Romilly noted that even a strange law “which made it a capital offence for any person above the age of fourteen to be found associating for a month with persons calling themselves Egyptians” was vigilantly enforced “down to the reign of King Charles the first.”[36] According to Romilly, who was writing in 1810, it was “only in modern times that this relaxation of the law has taken place.”[37]
The handful of vignettes from that era also seem to support that the rule of lenity produced results contrary to the legislature’s intent—and, more importantly, that courts were not concerned by that possibility.[38] One example is the courts’ construction of a 1740 statute on cattle-stealing.[39] That statute provided that the stealing of “sheep, or other cattle” was a “felony without benefit of clergy.”[40] As Blackstone tells it, the courts considered the words “or other cattle” to be “much too loose to create a capital offense,” and so “the act was held to extend to nothing but mere sheep.”[41] It is hard to find in such an interpretation an attempt to give effect to the legislature’s intent. Perhaps—depending on what else “cattle” might have entailed back then—the phrase “other cattle” might have been narrowed by the explicit reference to “sheep.” But to render “other cattle” surplusage runs afoul of the spirit of another rule of construction: the command to read a statute in such a way that the “whole may (if possible) stand.”[42] And sure enough, the legislature passed a law the next year “extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.”[43] It appears that the phrase “other cattle” was written, and meant, to be expansive.
A more ambivalent example that was closer in time to the rule of lenity’s inception is the judicial treatment of the horse-stealing felony.[44] During the reign of Henry VIII, a 1545 statute withdrew the benefit of clergy from “the stealing of any Horse Geldinge Mare Foole or Filley.”[45] After Edward VI succeeded to the throne, a new statute was enacted in 1547 that withdrew benefit of clergy from a long list of felonies,[46] including the “felonious stealing of horses geldings or mares.”[47] It also purported to abrogate the 1545 statute, providing that “in all other cases of felony, other than such as be before mentioned,” all persons “shall have and enjoy the privilege and benefit of his or their clergy . . . in like manner and form as he or they might or should have done before the Reign of the said late King Henry the Eighth.”[48] Because the 1545 statute referred to “any Horse” while the 1547 statute referred to horses in plural, Lord Matthew Hale noted that the 1547 statute “made some doubt, whether it were not intended to enlarge clergy, where only one horse was stolen.”[49]
The courts responded by interpreting the 1547 statute to permit the benefit of clergy for stealing a single horse, and the story goes that this is yet another instance of the courts thwarting the legislature’s intent.[50] But that narrative is significantly weaker here. For one, the courts had a textual hook in relying on the plural form of “horses,” “geldings,” and “mares.” And unlike the interpretation of the phrase “other cattle,” here the courts did give effect to the words of the statute (indeed, every letter).[51] Ultimately, though, it appears that the courts once again failed to effectuate the legislature’s intent. The next year, the legislature clarified that “all and singuler p[er]son and p[er]sons felonyously takinge or stealinge any horse geldynge or mare shall not be admytted to have or enjoye the p[ri]viledge or benefyte of his or their Clergy.”[52]
Overall, then, in the absence of a systematic study, it seems that the early uses of the rule of lenity largely led to results counter to the legislature’s intent. Thus, we may consider Maxwell’s conception of lenity as a tool for discerning the legislature’s “true” (as opposed to expressed) intent as a post hoc legitimization of the rule. Such a lens explains why the rule of lenity has survived the abandonment of previous draconian laws and why the rule now applies to laws that do not impose capital punishment. An actual wresting of authority from the legislature to enact criminal punishments as it sees fit can only be justified—if at all—by a penalty as drastic as death. But once the rule was conceived as fitting within the usual judicial system, where legislatures enact and judges faithfully interpret those enactments, it could apply, as Maxwell suggested, regardless of “whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.”[53]
II. Our Rule of Lenity
The rule of lenity thus originated in England.[54] When Chief Justice Marshall described the rule in Wiltberger as being “not much less old than construction itself,”[55] he could only have been incorporating a rule older than the Republic. Wiltberger was the first case in which the rule of lenity was explicitly applied by the United States Supreme Court.[56] It concerned the Crimes Act of 1790.[57] That Act provided for a crime punishable in federal court “[i]f any person or persons, shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder.”[58] In another section, the Act provided for punishment “[i]f any seaman, or other person, shall commit manslaughter on the high seas.”[59]Wiltberger involved manslaughter on a river.[60]
Because the manslaughter provision only referred to the “high seas,” the Court held that “the offence charged in this indictment is not cognizable in the Courts of the United States.”[61] That holding was reached because “Congress has not . . . inserted the limitation of place inadvertently; and the distinction which the legislature has taken, must of course be respected by the Court.”[62] Thus, while the language of the rule of lenity appears throughout the opinion, this case seems much more akin to the “horses” example than the “other cattle” one: a strange and arguably wrong conclusion, but a conclusion that at least has a textual basis.[63] It is fitting that it is unclear how much work this most nebulous doctrine did in the Supreme Court’s first case applying it by name.
Today, our rule of lenity is oft-summarized as “the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”[64] And whether a statute is ambiguous is determined by using the other methods of statutory interpretation.[65] According to the Supreme Court, “the rule applies if at the end of the process of construing what Congress has expressed, there is a grievous ambiguity or uncertainty in the statute.”[66] It is “reserved for cases where, after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.”[67] The rule is not one of general strict construction of penal statutes—where “[t]he statute is clear enough,” we do not “rely on the rule of lenity” at all.[68] The rule is, in effect, a tiebreaker.
At the same time, the rule of lenity remains a tool of statutory construction—it is just the last one applied.[69] That is why, where a statute is given a certain meaning on account of lenity, it retains that meaning even in a noncriminal context.[70] In Leocal v. Ashcroft,[71] the Supreme Court held in the immigration context that a DUI was not a “crime of violence” under 18 U.S.C. § 16.[72] Under the Immigration and Naturalization Act, if a DUI were a “crime of violence,” then petitioner Josue Leocal would be deportable.[73] In reaching its conclusion, the Court noted that “[e]ven if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner’s favor.”[74] Even though this case arose in the immigration context, “[b]ecause we must interpret [§ 16] consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.”[75]
That leads to an interesting conundrum where the statute is ambiguous as to a particular criminal defendant but resolving the ambiguity in the defendant’s favor may not benefit criminal defendants generally. The rule would not fit its name if, to avoid a particular result for one criminal defendant, the rule ended up extending to impose penalties on more defendants overall. Some courts of appeals have recognized that the rule of lenity must be applied with an eye toward defendants in general.[76] For instance, in United States v. Olvera-Cervantes, the Ninth Circuit considered the application of U.S.S.G. § 2L1.2, which penalized illegal reentry differently if the previous deportation followed a felony conviction.[77] The question before the court was “whether the district court should look to the maximum penalty authorized by the state statute under which the defendant was convicted or whether it should look to the maximum penalty authorized by the analogous federal statute.”[78] The more favorable outcome to Olvera-Cervantes in particular would have been to look to the federal statute, but the court found that “the rule of lenity . . . is of little use here because we do not know whether the defendant’s interpretation of section 2L1.2 would end up benefitting defendants in general.”[79] Indeed, it is hard to conceive how a court would be able to measure either interpretation’s benefit to defendants, given how federal and state statutes are mutable.
The most straightforward scenario, then, for applying the rule of lenity is when the criminal statute defines conduct and one of the dueling interpretations is narrower than the other. Such a narrow interpretation, completely included within the broader one, will always be beneficial to criminal defendants overall and would not require any hypothesizing by the court. This conception of the rule of lenity—as choosing the narrow over the broad interpretation—resembles strict construction.
But it seems well settled that the rule of lenity comes at the end of the analysis.[80] Only at the end, if two interpretations are in “equipoise,”[81] does the court apply the rule of lenity and therefore choose the narrower construction.[82] Given how few times two interpretations will ever be in true “equipoise,” only rarely will the narrower construction be preferred over the broader one merely by reason of narrowness. That is a sharp contrast to the rule of lenity described in the early English treatises, which treated the rule of strictly construing penal statutes as a general one.[83] In that sense, according to our rule of lenity, penal statutes will rarely be strictly construed.
In sum, the rule of strict construction of penal statutes has survived in American law insofar as the rule of lenity embodies a built-in bias (however slight) for the narrower interpretation. But by giving that bias effect only at the very end of the interpretive process—and only in the limited scenario of “equipoise”—our rule of lenity is significantly less applicable than the historic rule.
III. Lenity’s Limits: A Case Study on the First Step Act
Given the foregoing, applying the rule of lenity is difficult. As a prerequisite to even consider its use in a given case, one must first apply all other tools of statutory construction.[84] Even then, it remains a mystery what counts as “equipoise.” It is therefore unsurprising that in United States v. Hansen,[85] then-Judge Scalia, referring to the rule of lenity, remarked, “It is, quite frankly, difficult to assess the scope of this accepted principle.”[86] Pessimistic as it may sound, these application problems may prove to be intractable. Concepts such as interpretive “equipoise” and narrowing constructions have little capacity to be clarified for easy application.[87]
Looking to the rationales given over time for the rule of lenity might be a decent way to boil down those concepts into something more concrete. Below, this Article considers the three usual rationales provided for the rule of lenity. This Article concludes that most of them are in tension with the origin of the rule and that none tells us when a statute is ambiguous enough that we must make an assumption in favor of the defendant. That leads to the final conclusion of this Article: perhaps the rationales for the rule of lenity do not provide clear rules—but when none of the rationales are applicable, the rule of lenity itself should not apply to the criminal statute.
A. Lenity’s Rationales
Courts and commentators generally give three rationales for the rule of lenity. The first is fair notice; as Justice Holmes observed,
[a]lthough it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.[88]
The second is the separation of powers: “[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.”[89] And third, “the rule of lenity serves our nation’s strong preference for liberty.”[90]
The first two rationales are inconsistent with the rule of lenity’s origins. To start, the fair notice and separation of powers rationales seem to be post hoc rationalizations. After all, neither logically should have been triggered by the withdrawal of the benefit of clergy. If the scope of conduct criminalized by a seventeenth-century felony was so uncertain as to raise fair notice concerns, that uncertainty would have existed before the legislature decided to make the felony unavoidably punishable by death. Indeed, the vagueness doctrine—another doctrine animated by fair notice—applies beyond the penal context.[91] A similar critique applies to the separation of powers rationale. The legislature is the only branch empowered to enact any statute, not just criminal ones, and not just criminal ones that may impose the death penalty.[92] Furthermore, the separation of powers rationale is a particularly odd fit given that the rule of lenity originated to defeat the legislature’s intent.
The preference for liberty, on the other hand, does match the origin of the rule of lenity, at least superficially. If the death penalty is the most severe deprivation of liberty a state can effect, it makes sense that the rule of lenity only appeared once the benefit of clergy began to be taken away. Underlying this last rationale is a normative assumption—that the criminal penalty is a severe sanction, and that the state must therefore speak clearly if it wants to deprive a citizen of liberty.[93] We might question whether those assumptions hold in the context of many cases where the rule of lenity is applicable; if a defendant had committed some sort of morally culpable act (even if that act is not clearly cognized by the criminal statute), a reasonable person might consider it unfair to add another thumb to the scale in the defendant’s favor.[94] In any event, this rationale is also a relatively good fit with the practice of applying lenity. As Maxwell described the rule in England, “[t]he degree of strictness applied to the construction of a penal statute depends in great measure on the severity of the statute.”[95] A few states––and federal courts now and then––seem to do the same when they differentiate between felony statutes and misdemeanor statutes.[96]
But the liberty rationale too is imperfect. If the liberty rationale is meant to require legislatures to speak clearly, why does lenity only apply when there is grievous ambiguity, as opposed to just ambiguity?[97] More importantly, a sliding scale of lenity adds yet another variable to an already-unclear equation. How much stricter should a felony statute be interpreted? What about a statute that provides a ten-year maximum sentence versus a fifteen-year maximum sentence? The liberty rationale’s capaciousness makes it a decent justification for the rule. But it is also a poor guiding principle for the rule’s application.
One might ask, why should we care whether the rationales for the rule of lenity—all of which are widely cited[98]—are consistent with the rule’s origin? After all, that a rule sprung up in response to a particular confluence of events does not necessarily mean that we should keep the rule bound to that scenario. Be that as it may, Wiltberger itself described the rule of lenity as not just merely old, but “perhaps not much less old than construction itself,”[99] and courts have consistently picked up on and repeated that phrase.[100] It would be odd to abandon any attempt to keep lenity moored to its past, considering the courts’ constant reminders of its ancient roots.
In any event, at the very least, it seems that no single rationale can claim supremacy over the other. And even if one could, each rationale alone does not shed much light on how to apply the rule to a particular statute. At what point is a statute ambiguous enough to raise fair notice concerns? Our other doctrine that responds to the need for fair notice relies on such concepts as what a “person of ordinary intelligence” could “reasonably understand”[101]—hardly a hopeful ground upon which to find a clear rule. As for the separation of powers rationale, scholars have noted that courts are accepted to have, in certain criminal matters, vast discretion.[102] Thus, if violating the separation-of-powers principle by giving too much discretion to courts in criminal matters is merely a matter of degree, that rationale is also unlikely to lead to any clear rule.
None of this is to suggest that a lack of a clear rule means that lenity should be discarded altogether. Law does not always give clear rules, and it might be especially odd to require clarity from a doctrine designed to enter the legal analysis in response to ambiguity. Just because a doctrine cannot be reduced into bright-line rules does not make it invalid—far from it. Rather, this Article concludes only that, insofar as this Article attempts to find a clear way to apply lenity in at least some cases, there probably will be none based on balancing various of the three rationales for the rule.
B. A Proposed Limit on Lenity
This Article argues that there may be some categories of penal laws to which none of the rationales of the rule of lenity apply, and that lenity should therefore be inapplicable to those statutes. The rule of lenity has generally been described in terms referring to “penal laws,” without any suggestion that some penal laws might not be proper subjects of the rule.[103] But considering the rule of lenity’s rationales in order to define a class of statutes to which the rule does not apply is not unheard of. Emlin McClain, former Chief Justice of the Iowa Supreme Court, in a late-nineteenth century treatise of American criminal law, noted the view that, because the rule “was adopted at the common law in favor of life, or the liberty of the citizen,” it “has never been observed in the construction of statutes enacted for the punishment of mere misdemeanors.”[104] For that reason, McClain described several categories of criminal law to which the rule was not applied, including “statutes for the prevention of fraud and suppression of public wrong” and “statute[s] relating to procedure.”[105]
With that in mind, one potential limit on the scope of lenity starts with the observation that every rationale for lenity is, in effect, a prohibition on what the legislature can do. The legislature may not criminalize conduct without providing fair notice to potential defendants.[106] The legislature may not pass such an open-ended statute that it effectively delegates lawmaking to the courts.[107] The legislature may not infringe upon a person’s liberty without clearly stating its intent to do so.[108] Put another way, there are limits to how a legislature may enact a statute used to the detriment of the defendant. If those are fair characterizations of the rationales underlying the rule of lenity, then the rule should not be applied in instances of legislative grace.
One recent example of so-called legislative grace is the First Step Act of 2018.[109] Before 2010, distributing 5 and 50 grams of crack triggered mandatory minimum sentences of five and ten years, respectively.[110] The Fair Sentencing Act of 2010 raised those threshold amounts to 28 and 280 grams.[111] Eight years later, the First Step Act made already-sentenced criminals potentially[112] eligible for the lower penalties of the Fair Sentencing Act, even though they had committed their crimes before the Fair Sentencing Act was passed.[113] Eligibility for relief under the First Step Act depended on whether the criminal had committed a “covered offense.”[114] And a “covered offense” was defined in the First Step Act as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was committed before August 3, 2010.”[115]
Predictably, the definition of “covered offense” led to questions, often raised by criminals seeking resentencing.[116] One of the most significant questions was whether the term referred to the actual conduct that the criminal committed or merely the statutory elements of the offense.[117] That distinction matters for someone who distributed, say, a kilogram of crack. If actual conduct mattered, then he would not be eligible for resentencing, because someone who sold a kilogram of crack today would be subject to the same penalties as someone who did so before 2010. On the other hand, if only the statutory elements mattered, then the criminal would be eligible for resentencing because the penalty for selling fifty grams of crack has been modified.
From the beginning, most district courts adopted the categorical approach.[118] For many of these courts, whether actual conduct mattered depended on what the phrase “statutory penalties for which were modified” was in reference to and what the term “violation” meant.[119] And time and time again, those courts would invoke the rule of lenity to say that whether a covered offense was committed did not depend on the actual underlying conduct.[120] Even district courts that reached the conclusion that eligibility for resentencing depended on actual offense conduct dismissed the use of lenity because the statute was unambiguous,[121] not for some other reason.
This Article argues that the rule of lenity should never have applied in construing eligibility under the First Step Act—even if there were a “grievous” ambiguity—because none of the rationales for the rule apply here. To begin with, the fair notice concern is irrelevant in this context. Whatever applicability that doctrine has in the sentencing context in general, it has no relevance when discussing a criminal statute that alters the penalties for a crime after the sentence has already been handed down. To say that fair notice concerns are implicated here would be to say that the criminal should be given the benefit of the doubt in case he was misled by the ambiguous wording of a statute that had not yet been passed.
Neither does it make sense to apply the rule in the name of separation of powers. In fact, that rationale would suggest that the court should resolve ambiguities against the criminal. Sentence modifications “are not constitutionally compelled,”[122] and courts themselves “lack[] the inherent authority to modify a term of imprisonment.”[123] If it is in Congress’s domain, then, to permit resentencing, the separation of powers principle would have courts decline—not expand—the invitation to find the ability to do so unless Congress spoke clearly.
Even the vague preference for liberty rationale is especially weak here because the legislature did speak clearly under the old sentencing regime. As the Eighth Circuit noted in analyzing a different sentence modification statute, “[n]o new deprivation of liberty can be visited upon [a prisoner] by a proceeding that, at worst, leaves his term of imprisonment unchanged,” when “[h]is liberty is already deprived by virtue of a sentencing which gave him all the process the Constitution required.”[124]
Looking forward, the same analysis may apply—but with less weight—when the statute or rule providing a potential resentencing was in place before the criminal’s initial sentence. For instance, in United States v. Puentes,[125] the Eleventh Circuit considered whether a district court could reduce a defendant’s obligation to pay restitution under the Mandatory Victim’s Restitution Act (“MVRA”) through Federal Rule of Criminal Procedure 35(b), which provides that “the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”[126] The MVRA was enacted after Rule 35(b), and both were in place well before Puentes committed his crimes.[127] Puentes argued that “[the court is] bound to apply the rule of lenity if [it] find[s] any ambiguity in the [MVRA], Rule 35(b), or the interplay between the two.”[128] The court assumed for the sake of argument that the rule of lenity could apply to Rule 35(b) but decided that there was no grievous ambiguity that would support applying lenity there anyway.[129]
Putting aside whether lenity should apply to procedural provisions at all, it is a harder question whether lenity should apply here compared to the First Step Act example analyzed above. Unlike a defendant under the First Step Act, Puentes in theory could have depended on the possibility of a Rule 35(b) sentence reduction at the time of his conduct. It is true that the fair notice concern is already weak in the sentencing context and the resentencing context is even a step further removed,[130] but at least it would be temporally possible for a defendant to be misled by the wording of Rule 35(b). It also might make some sense under the framework mentioned above that views lenity as a constraint upon Congress: if Congress wants to deny an avenue for relief available to potential criminals, it must speak clearly. On the other hand, Rule 35(b) remains an exception to the usual inability to change an already-imposed sentence. In recognition of that general rule, courts often refer to 18 U.S.C. § 3582(c)(2)—which authorizes sentence-modification proceedings[131]—as an “act of lenity.”[132] If we consider Rule 35(b) itself to be a similar “act of lenity,” to apply the rule of lenity to it almost seems like double-counting.
So, it may not be as easy as saying all resentencing statutes should be excluded from the rule of lenity. But at the very least, an approach of narrowing which criminal laws are subject to our rule would be theoretically grounded and simple to administer. Unlike the usual approach, where courts always must consider “how much ambiguousness constitutes an ambiguity,”[133] once a particular statute is found to be outside lenity’s ambit, a court will no longer need to engage in that last step of the interpretive process at all.
Conclusion
The rule of lenity has largely been unmoored from its English origins. And though it is an old doctrine that has rarely been questioned, its inconsistent application has prompted even Justice Scalia to suggest that “[i]f [the rule of lenity] is no longer the presupposition of our law, the Court should say so, and reduce the rule of lenity to an historical curiosity.”[134] Even if a court seeking to apply the rule were to look to what rationales have been used to justify the modern American version of lenity, it would be confronted with three—all distinct, and none perfect.
It seems, then, that the easiest way to clarify the rule of lenity’s application is to start with considering its scope. Although the rule is taken to mean that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”[135] this Article argues that the rule’s reference to “criminal statutes” should not be taken hyperliterally. Especially now that the term “criminal statutes” may fairly be read to mean any statute that touches upon criminal law, the rule of lenity—even in its expanded form—does not reach every such statute. Where none of the rationales for the rule of lenity apply, that old doctrine should have no role to play in interpreting the statute, atmospheric or otherwise.
*. Law clerk to Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit, 2021–22, and to Judge Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit, 2020–21. J.D., Harvard Law School, 2020; M.A., State University of New York at Stony Brook, 2016; B.S., State University of New York at Stony Brook, 2015. Thanks to Aaron Gyde, Joshua Hoyt, Aaron Hsu, and DJ Sandoval for helpful comments and advice. This Article represents the views of the author alone.
[1]. 18 U.S. (5 Wheat.) 76, 95 (1820).
[2]. Id.
[3]. David S. Romantz, Reconstructing the Rule of Lenity, 40 Cardozo L. Rev. 523, 526 (2018).
[4]. Id. at 524–25.
[5]. Callanan v. United States, 364 U.S. 587, 596 (1961).
[6]. Chapman v. United States, 500 U.S. 453, 463 (1991) (quoting Huddleston v. United States, 415 U.S. 814, 831 (1974)).
[7]. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; see also Nathan James, Cong. Rsch. Serv., R45558, The First Step Act of 2018: An Overview (Mar. 4 ,2019).
[8]. Romantz, supra note 3, at 526.
[9]. 4 William Blackstone, Commentaries on the Laws of England 18 (4th ed. 1770).
[10]. Frederick Howard Wines, Punishment and Reformation: A Study of the Penitentiary System 106 (1910) (“[M]ultitudes of prisoners under sentence of death were given the alternative, of which they hastened to take advantage, of voluntarily leaving the realm, if pardoned. Herein was the germ of English transportation.”).
[11]. 4 Blackstone, supra note 9, at 18 (“[I]n England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers.”). In fact, this differing punishment for crimes earned commendation from Blackstone, who remarked that “[w]here men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt.” Id.
[12]. Romantz, supra note 3, at 526.
[13]. 4 Blackstone, supra note 9, at 358. As a historical matter, then, the benefit of clergy was usually claimed after conviction. As Blackstone observed, “it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury; and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the benefit of his clergy at all.” Id. at 359–60; see also McRaney v. N. Am. Mission Bd. of S. Baptist Convention, Inc., 980 F.3d 1066, 1076 (5th Cir. 2020) (Oldham, J., dissenting from the denial of rehearing en banc).
[14]. 4 J. W. Jones, A Translation of All the Greek, Latin, Italian, and French Quotations Which Occur in Blackstone’s Commentaries on the Laws of England 245 (1823). The clerical tonsure was a hairstyle. See 4 Blackstone, supra note 9, at 360.
[15]. 4 Blackstone, supra note 9, at 360. It appears that this literacy test was a judicial misinterpretation of the legislature’s extension of the benefit to “secular” clerks. See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Tol. L. Rev. 511, 515 n.22 (2002) (“[That] statute was intended to clarify that benefit of clergy would be afforded to ‘inferior Orders’ of the clergy, as well as bishops, priests, and deacons, but . . . the intent was not to extend clergy to lay persons.” (quoting 2 Sir William Hawkins, A Treatise of the Pleas of the Crown 338 (2d ed. 1724))). That misinterpretation was arguably deliberate. See Romantz, supra note 3, at 526 (“As Parliament and the king continued to proliferate capital felonies in the coming centuries, the courts responded by expanding the benefit of the clergy rule to include any citizen who could read.”).
[16]. 4 Blackstone, supra note 9, at 360.
[17]. William L. Rushton, Shakespeare: A Lawyer 16 (1858) (“[A]s many laymen as clergymen enjoyed this privilege, which excited the jealousy of the clergy, in whose favour, therefore, a further distinction was made . . . .”).
[18]. That statute was titled “Concerning the allowance of benefit of clergy,” and it provided that “every person, not being within orders, which once hath been admitted to the benefit of his clergy, eftsoons arraigned of any such offence, be not admitted to have the benefit or privilege of his Clergy.” 4 Hen. 7 c. 13.
[19]. 12 Hen. 7 c. 7; see Spector, supra note 15, at 515–16 (“At first, benefit of clergy was stripped from murder and certain particularly nasty cases of robbery, but by the middle of the sixteenth century benefit of clergy had been withdrawn from the most trivial of felonies, including ‘stealing horses,’ pickpocketing, and ‘burning a dwelling or barn having grain therein.’” (footnotes omitted) (citing 12 Hen. 7 c. 7)).
[20]. 12 Hen. 7 c. 7.
[21]. 4 Blackstone, supra note 9, at 18 (“It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament to be felonies without benefit of clergy; or, in other words, to be worthy of instant death.”). To be sure, “a large number of capital offenses on the statute book is no test for severity,” but it remains the case that “by the nineteenth century, the government had so limited the [benefit of clergy] that it had fallen into disuse.” Newman F. Baker, Benefit of Clergy—A Legal Anomaly, 15 Ky. L.J. 85, 111 (1927).
[22]. Spector, supra note 15, at 517.
[23]. Romantz, supra note 3, at 527.
[24]. Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 750 n.13 (1935) (“By the time Hale wrote (he died in 1676), the doctrine of strict construction was firmly established.”); see also 1 William Blackstone, Commentaries on the Laws of England 88 (4th ed. 1765) (“Penal statutes must be construed strictly.”); 2 Sir Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the Crown 335 (1736) (“That where any statute . . . hath ousted clergy in any of those felonies, it is only so far ousted, and only in such cases and as to such persons, as are expressly comprised within such statutes, for in favorem vitae & privilegii clericalis such statutes are construed literally and strictly.”).
[25]. Baker, supra note 21, at 111.
[26]. Spector, supra note 15, at 514 n.16 (“Sir Peter Benson Maxwell and [Livingston] Hall were the first to trace the rule of lenity back to the benefit of clergy cases. Their accounts have been accepted and recited by modern rule of lenity scholars.” (citations omitted)).
[27]. Id.; Peter Benson Maxwell, On the Interpretation of Statutes 237 (1875).
[28]. Maxwell, supra note 27, at 237.
[29]. Id. at 238.
[30]. Id.
[31]. Hall, supra note 24, at 751.
[32]. Id. Perhaps this state of affairs—presumably not all too displeasing to the legislature, which could reap the benefits of passing such statutes without any of the political downsides—could eventually lead to a “sort of prescriptive validity.” See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Rsrv. L. Rev. 581, 583 (1989). After the charade has gone on long enough, “the legislature presumably has [it] in mind when it chooses its language.” Id. But that does not clarify the justification for the rule of lenity at its inception.
[33]. Hall, supra note 24, at 751.
[34]. See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 198 (1985) (“Faced with a vast and irrational proliferation of capital offenses, judges invented strict construction to stem the march to the gallows.”); Zachary Price, The Rule of Lenity as a Rule of Structure, 72 Fordham L. Rev. 885, 897 (2004) (“The rule of lenity has its oldest origins in the efforts of common law courts in the seventeenth and eighteenth centuries to limit the brutality of English criminal law.”); Romantz, supra note 3, at 527 n.12 (“The rule of lenity first developed in England with the decided goal of frustrating the intent of the legislature. English courts resolved to chart a more humane path despite the legislature’s facility to enact capital crimes.”); Lawrence M. Solan, Law, Language, and Lenity, 40 Wm. & Mary L. Rev. 57, 87 (1998) (“The courts, doing what they could to frustrate the legislative will, developed the principle that penal statutes were to be construed strictly.”). In fact, as mentioned above, the legislature’s abrogation of the benefit of clergy might have itself been a move in this tug-of-war, a response to the courts’ improper extension of the benefit to all literate citizens in the first place. See Romantz, supra note 3, at 526–27 (“Keenly aware that the courts were frustrating its legislative prerogative to kill the nation’s criminals, Parliament responded by enacting more and more capital felonies, while excluding increasing numbers of felonies from the benefit of the clergy.”).
[35]. Sir Samuel Romilly, Observations on the Criminal Law of England as it Relates to Capital Punishments, and on the Mode in Which it is Administered 5 (1811).
[36]. Id.
[37]. Id.; see also id. at 6 (“In the long and sanguinary reign of Henry VIII, it is stated by Hollinshed that 72,000 persons died by the hands of the executioner, which is at the rate of 2,000 in every year.”). To be sure, Romilly had an agenda of his own, as an advocate for repealing the death penalty for various crimes. See generally Charles Noble Gregory, Sir Samuel Romilly and Criminal Law Reform, 15 Harv. L. Rev. 446 (1902) (providing an example of Romilly’s advocacy against the death penalty).
[38]. Seee.g., Sir William David Evans, A Collection of Statutes Connected with the General Administration of the Law 29–30 (Anthony Hammond & Thomas Colpitts Granger, 3d ed. 1836).
[39]. Id. Among others, Blackstone and Justice Scalia have referenced the judicial treatment of this statute, the latter somewhat scornfully. See Scalia, supra note 32, at 582 (“I doubt, for instance, that any modern court would go to the lengths described by Blackstone in its application of the rule that penal statutes are to be strictly construed.”).
[40]. Scalia, supra note 32, at 582.
[41]. 4 Blackstone, supra note 9, at 88.
[42]. Id. at 89.
[43]. Id. at 88.
[44]. 37 Hen. VIII c. 8.
[45]. Id. (emphasis added).
[46]. Other felonies from which the benefit of clergy was withdrawn was the “robbing of anny Parsone or parsons in the highe waye or nere to the highe waye,” and the “felonious taking of anny good out of anny pishe Churche or other Churche or Chapell.” 1 Edw. VI c. 12. That the statute made the distinction between “Parson” and “parsons” might have also cast doubt on whether the term “horses” should be read to also include a single horse.
[47]. The Statutes at Large from the First Year of King Edward the Fourth to the End of the Reign of Queen Elizabeth 448 (2d ed. 2010).
[48]. Id.
[49]. Sir Matthew Hale Knt., The History of the Pleas of the Crown 365 (2003).
[50]. See, e.g., Solan, supra note 34, at 87–88.
[51]. Id. at 88.
[52]. 2 & 3 Edw. VI c. 33. But even then, the legislature seemed to admit that the initial statute was unclear. The preface to its clarifying act stated that it was made necessary because “it is and hathe been ambyguous and doubtfull . . . whether that any p[er]son being in due fourme of the lawes found gyltye . . . [of] felonyous stealinge of one horse geldynge or mare ought to be admytted to have and enjoye the priviledge and benefyte of his Clergie . . . .” Id.
[53]. Maxwell, supra note 27, at 238–39.
[54]. Romantz, supra note 3, at 526.
[55]. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).
[56]. Note, The New Rule of Lenity, 119 Harv. L. Rev. 2420, 2422 (2006).
Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct. Rev. 345, 357 (1994). That statute, according to Professor Kahan, was “the very first piece of criminal legislation enacted by Congress.” Id.
[58]. [2 The Justices on Circuit 1790–1794] The Documentary History of the Supreme Court of the United States, 1789–1800, at 529 (Maeva Marcus et al. eds., 1988).
[59]. Id. at 530.
[60]. Wiltberger, 18 U.S. at 77.
[61]. Id. at 99, 105.
[62]. Id. at 104.
[63]. See supra text accompanying notes 39–49.
[64]. Yates v. United States, 574 U.S. 528, 547–48 (2015) (quoting Cleveland v. United States, 531 U.S. 12, 25 (2000)).
[65]. See generally Valerie C. Brannon, Cong. Rsch. Serv., R45153, Statutory Interpretation: Theories, Tools, and Trends (2018).
[66]. Shaw v. United States, 137 S. Ct. 462, 469 (2016) (internal quotation marks and citation omitted); see also United States v. Shabani, 513 U.S. 10, 17 (1994) (“The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute.”)
[67]. Smith v. United States, 508 U.S. 223, 239 (1993) (alteration adopted) (internal quotation marks and citation omitted).
[68]. Shaw, 137 S. Ct. at 469.
[69]. See Reno v. Koray, 515 U.S. 50, 65 (1995) (“The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (internal quotation marks and citation omitted)); see also Brannon, supra note 65, at 31 n.317 and accompanying text (“Consequently, most courts will not apply the substantive canons [such as the rule of lenity] unless they conclude that after consulting other interpretive tools, the statute remains ambiguous.”).
[70]. See infra note 75 and accompanying text.
[71]. 543 U.S. 1 (2004).
[72]. Id. at 4.
[73]. See id.
[74]. Id. at 11 n.8. This discussion of the rule of lenity in Leocal is dicta. Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting). But from the viewpoint of the lower courts, “there is dicta and then there is dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).
[75]. Leocal, 543 U.S. at 11 n.8; see also Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 16 (2011) (“[W]e have said that the rule of lenity can apply when a statute with criminal sanctions is applied in a noncriminal context.”); Martinez, 543 U.S. at 380 (“It is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.”).
[76]. See, e.g., United States v. Olvera-Cervantes, 960 F.2d 101, 103 (9th Cir. 1992).
[77]. Id. at 102.
[78]. Id. (emphasis in original).
[79]. Id. at 103; see also United States v. Beck, 957 F.3d 440, 450 (4th Cir. 2020) (noting that “lenity doesn’t support [Beck’s] interpretation,” because his interpretation “would generally be against defendants’ interests”).
[80]. See Shular v. United States, 140 S. Ct. 779, 787 (2020) (Kavanaugh, J., concurring) (“[A] court may invoke the rule of lenity only after consulting traditional canons of statutory construction.” (internal quotation marks and citation omitted)); id. at 787 n.1 (listing cases).
[81]. Johnson v. United States, 529 U.S. 694, 713 n.13 (2000).
[82]. Id.
[83]. See Maxwell, supra note 27, at 238 (rule of strict construction requires ensuring that no cases outside the “spirit and scope of enactment” fall within a statute).
[84]. Barber v. Thomas, 560 U.S. 474, 488 (2010).
[85]. 772 F.2d 940 (D.C. Cir. 1985).
[86]. Id. at 948.
[87]. Seeid. (noting that “the Supreme Court’s advice that it only serves as an aid for resolving an ambiguity . . . provides little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity”).
[88]. McBoyle v. United States, 283 U.S. 25, 27 (1931); see also id. (“To make the warning fair, so far as possible the line should be clear.”).
[89]. United States v. Bass, 404 U.S. 336, 348 (1971); see also United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (“The rule that penal laws are to be construed strictly . . . is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.”).
[90]. United States v. Nasir, 17 F.4th 459, 473 (3d Cir. 2021) (Bibas, J., concurring). On this point, courts repeatedly cite to Judge Henry Friendly’s observation of “our ‘instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’” Id. (quoting Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)); see, e.g., United States v. R.L.C., 503 U.S. 291, 305 (1992) (plurality opinion); United States v. Pembrook, 609 F.3d 381, 391 (6th Cir. 2010); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006); United States v. Latimer, 991 F.2d 1509, 1514 (9th Cir. 1993).
[91]. Sessions v. Dimaya, 138 S. Ct. 1204, 1244 (2018) (Thomas, J., dissenting) (“[T]he vagueness doctrine extends to all regulations of individual conduct, both penal and nonpenal.”).
[92]. See, e.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (Marshall, C.J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society.”).
[93]. See Marinello v. United States, 138 S. Ct. 1101, 1108 (2018) (explaining that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).
[94]. As one commentator noted:
Two reasons can be found for the decline in importance of the lenity canon. First, the criminal law has been used more and more, not just to condemn evil behavior, but to regulate economic activity. Jail sentences and stigmas are less likely to attach, either by law or in practice. In that setting, a generalized tilt toward the accused loses some of its attraction. Second, as public concern about crime increases, the inclination to adopt an across-the-board presumption in favor of the accused weakens.
William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 204 (1999).
[95]. Maxwell, supra note 27, at 239.
[96]. See, e.g., Maine v. Millett, 203 A.2d 732, 734 (Me. 1964) (quoting Maine v. Blaisdell, 105 A. 359, 360 (Me. 1919)) (noting that a statute declaring a felony “calls for a more strict construction than one which declares an act to be a misdemeanor”); Mo., K. & T. Ry. Co. v. State, 100 S.W. 766, 767 (Tex. 1907) (“It is a well-established principle of statutory construction that penal statutes must be strictly construed in determining the liability of the person upon whom the penalty is imposed, and the more severe the penalty, and the more disastrous the consequence to the person subjected to the provisions of the statute, the more rigid will be the construction of its provisions in favor of such person and against the enforcement of such law.”). In United States v. Plaza Health Laboratories, 3 F.3d 643 (2d Cir. 1993), the Second Circuit declined to construe the Clean Water Act (“CWA”) in the same way that it did the Rivers and Harbors Act (“RHA”). Id. at 647–48. The court “view[ed] with skepticism the government’s contention that [it] should broadly construe the greatly magnified penal provisions of the CWA based upon RHA cases that did so in the context of strict-liability and misdemeanor penalties.” Id. at 648. See generally 1 Wayne R. LaFave, Substantive Criminal Law § 2.2(d) (3d ed. 2021) (footnote omitted) (citing Millett, 203 A.2d 732) (“No doubt some criminal statutes deserve a stricter construction than others. Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties.”).
[97]. See,e.g., United States v. Davis, 139 S. Ct. 2319, 2352 (2019) (Kavanaugh, J., dissenting).
[98]. See, e.g., Massachusetts v. St. Hilaire, 21 N.E.3d 968, 979 (Mass. 2015) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931)); United States v. Gallaher, 624 F.3d 934, 941(9th Cir. 2010) (quoting United States v. Bass, 404 U.S. 336, 348 (1971)); Sash v. Zenk, 439 F.3d 61, 65 n.2 (2d Cir. 2006) (quoting Bass, 404 U.S. at 348)).
[99]. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820).
[100]. See, e.g., Dowling v. United States, 473 U.S. 207, 213 (1985); United States v. Boston & M. R.R., 380 U.S. 157, 160 (1965) (“A criminal statute is to be construed strictly, not loosely. Such are the teachings of our cases from United States v. Wiltberger down to this day.” (citation omitted)); United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016); United States v. Valle, 807 F.3d 508, 527 (2d Cir. 2015); United States v. Parker, 762 F.3d 801, 807 (8th Cir. 2014); United States v. Winchester, 916 F.2d 601, 607 (11th Cir. 1990) (“Lenity, the quality of being lenient or merciful, is an application of the common law principle that criminal statutes are to be strictly construed, a rule which ‘is perhaps not much less old than construction itself.’” (quoting Wiltberger, 18 U.S. (5 Wheat.) at 95)).
[101]. United States v. Harriss, 347 U.S. 612, 617 (1954).
[102]. Spector, supra note 15, at 545–46.
[103]. See, e.g., Rule of Lenity, Black’s Law Dictionary (11th ed. 2019). But see, Popkin, supra note 94, at 204.
[104]. 1 Emlin McClain, A Treatise on the Criminal Law as Now Administered in the United States § 83 (1897).
[105]. Id.
[106]. Marinello v. United States, 138 S. Ct. 1101, 1106 (2018) (quoting United States v. Aguilar, 515 U.S. 593, 600 (1931)).
[107]. See United States v. Komzinski, 487 U.S. 931, 951 (1988) (denouncing “the arbitrariness and unfairness of a legal system in which the judges would develop the standards for imposing criminal punishment on a case-by-case basis”).
[108]. See Marinello, 138 S. Ct. at 1108 (stating that if Congress had intended to make minor violations of tax laws a felony, it would have used clearer language to do so).
[109]. Pub. L. No. 115-391, 132 Stat. 5194.
[110]. 21 U.S.C. § 841(b) (2009) (amended 2010).
[111]. Pub. L. No. 111-220, § 2, 124 Stat. 2372.
[112]. Under § 404(b) of the First Step Act of 2018, whether a sentence was ultimately reduced remained within the court’s discretion. See Pub. L. No. 115-391, 132 Stat. 5194, 5222.
[113]. Id.
[114]. First Step Act § 404(b).
[115]. Id. § 404(a).
[116]. See United States v. Davis, 961 F.3d 181, 183 (2d Cir. 2020).
[117]. Seeid.
[118]. See United States v. King, 423 F. Supp. 3d. 481, 484 (M.D. Tenn. 2019) (“To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court[s] to have addressed the matter have concluded that the count of the conviction controls . . . .”).
[119]. See, e.g., United States v. Henderson, 399 F. Supp. 3d 648, 653–54 (W.D. La. 2019). The Supreme Court has since clarified that the phrase “statutory penalties” refers to “a violation of a Federal criminal statute.” Terry v. United States, 141 S. Ct. 1858, 1862 (2021).
[120]. See Henderson, 399 F. Supp. 3d at 654; see also King, 423 F. Supp. 3d at 484–85; United States v. Hardnett, 417 F. Supp. 3d 725, 737 (E.D. Va. 2019); United States v. Willis, 417 F. Supp. 3d 569, 575 (E.D. Pa. 2019); United States v. Williams, 402 F. Supp. 3d 442, 448 (N.D. Ill. 2019); United States v. Askins, No. CR-02-00645-001, 2019 WL 3800227, at *3 (D. Ariz. Aug. 6, 2019); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *4 (S.D. Tex. July 17, 2019); United States v. Martin, No. 03-CR-795, 2019 WL 2571148, at *2 (E.D.N.Y. June 20, 2019); United States v. Rose, 379 F. Supp. 3d 223, 229 (S.D.N.Y. 2019); United States v. Allen, 384 F. Supp. 3d 238, 242 (D. Conn. 2019); United States v. Pierre, 372 F. Supp. 3d 17, 22 (D.R.I. 2019).
[121]. See, e.g., United States v. Jackson, No. 03-0642, 2019 U.S. Dist. LEXIS 109993, at *7–8 n.3 (E.D. Pa. June 26, 2019) (“To the extent the Government suggests that the meaning of ‘violation’ in § 404(a) is ambiguous, the Court disagrees. As a result, the Court’s interpretation of ‘violation’ in the First Step Act is not subject to the rule of lenity, which requires courts to construe ambiguities in criminal statutes in favor of defendants.” (citation omitted)).
[122]. Dillon v. United States, 560 U.S. 817, 841 (2010).
[123]. United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020); see also United States v. Puentes, 803 F.3d 597, 605–06 (11th Cir. 2015) (“The law is clear that the district court has no inherent authority to modify a sentence; it may do so only when authorized by a statute or rule.”).
[124]. United States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).
[130]. Johnson v. United States, 576 U.S. 591, 630 (2015) (Alito, J., dissenting) (noting that fair notice concerns “have less force when it comes to sentencing provisions, which come into play only after the defendant has been found guilty of the crime in question”).
[131]. See 18 U.S.C. § 3582(c)(2).
[132]. Dillon v. United States, 560 U.S. 817, 828 (2010); see also United States v. Padilla-Diaz, 862 F.3d 856, 861 (9th Cir. 2017) (“As acts of lenity, such sentence reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings.”); United States v. Maiello, 805 F.3d 992, 1000 (11th Cir. 2015); United States v. Johnson, 703 F.3d 464, 469 (8th Cir. 2013).
[133]. United States v. Hansen, 772 F.2d 940, 948 (D.C. Cir. 1985).
[134]. Holloway v. United States, 526 U.S. 1, 21 (1999) (Scalia, J., dissenting). This statement is especially striking from Justice Scalia, who along with Bryan Garner has been credited with maintaining the rule of lenity’s significance in our law. See Intisar A. Rabb, Response, The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179, 180 (2018) (“Justice Scalia and Professor Bryan Garner have helped elevate the rule of lenity by including it in a set of fifty-seven recommended canons of construction in their widely read treatise on interpretation.”).
[135]. Yates v. United States, 574 U.S. 528, 547–48 (2015) (internal quotation marks omitted).
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.
[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.
[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”).
[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.
In 2020, the Supreme Court declared that a large part of Oklahoma was still Indian country[1] because Congress had never formally disestablished a reservation. While the McGirt v. Oklahoma[2] decision certainly had a large impact on the state of Oklahoma and was celebrated as a recognition of Native American treaty rights, its impact was felt less outside of the state. However, the Supreme Court left a question unanswered in McGirt that could fundamentally change the way that states prosecute crimes in Indian country.
Under the federal Major Crimes Act,[3] any American Indian[4] who commits certain offenses is subject to the exclusive jurisdiction of the United States.[5] As Justice Gorsuch put it, “[s]tate courts generally have no jurisdiction to try [American] Indians for conduct committed in ‘Indian country.’”[6] A neighboring statutory provision extends this rule more broadly, stating that “[e]xcept as otherwise expressly provided by law, the general laws of the United States . . . in any place within the . . . exclusive jurisdiction of the United States . . . shall extend to the Indian country.”[7]
Therefore, in addition to re-recognizing the Muscogee Creek Nation’s reservation, McGirt essentially removed between ten and fifteen percent of Oklahoma’s population from state criminal jurisdiction when they committed crimes in Indian country. While the Muscogee Creek reservation only covers approximately ten percent of Oklahoma, subsequent state court cases have extended McGirt to re-recognize the Cherokee, Choctaw, Chickasaw, and Seminole reservations, which together cover almost all of eastern Oklahoma.[8] As a result of these decisions, nearly half of Oklahoma’s four million residents now reside in Indian country.[9]
The McGirt decision only touched on whether states have jurisdiction under the Major Crimes Act to prosecute American Indians who commit crimes in Indian country.[10] In response to losing jurisdiction, Oklahoma petitioned the Supreme Court for review of the McGirt decision and the question of whether states have authority to prosecute non-American Indians in Indian country when the victims are American Indian.[11] Although the Supreme Court withheld certiorari on Oklahoma’s first question, it is taking up the second.[12]
Oklahoma argues that previous decisions from the Oklahoma Court of Criminal Appeals overstepped the bounds of both the Major Crimes Act, 18 U.S.C. § 1153, and the General Crimes Act, 18 U.S.C. § 1152.[13] In so doing, it relies on a mix of textual interpretation of the statutes and analysis of nineteenth century precedent. Oklahoma’s textual analysis begins with a study of the text of the General Crimes Act.
Oklahoma takes issue with the Court of Criminal Appeals’ interpretation of two phrases in the General Crimes Act. The state first argues that the phrase “sole and exclusive jurisdiction” as used in the statute describes which laws extend to Indian country, and not what governments have prosecutorial authority over those laws.[14] Next, Oklahoma disagrees with the Court of Criminal Appeals as to the meaning of the phrase “except as otherwise expressly provided by law.”[15] Instead of exempting Indian country from state criminal law without an act of Congress, Oklahoma argues that the phrase refers to federal laws that do not reach Indian country without congressional approval.[16] This distinction, the state argues, allows Oklahoma to exercise concurrent jurisdiction over non-American Indians who commit crimes against American Indians in Indian country.
In addition to the textual argument, Oklahoma also points to a pair of decisions allowing states to exercise prosecutorial authority in Indian country. One, New York ex rel. Cutler v. Dibble,[17] allowed New York to enforce trespass laws against non-American Indians who attempted to settle in Indian country.[18] However, Dibble did not interpret either the Major or General Crimes Act, instead analyzing whether the New York law violated the Commerce Clause or a treaty.[19] Oklahoma also relies on United States v. McBratney,[20] a case interpreting the predecessor to the General Crimes Act that held that Colorado had jurisdiction over a murder committed by a non-American Indian in Indian country.[21] However, McBratney involved a murder where both the defendant and the victim were not American Indians, a situation that the Court affirmed was still within the jurisdiction of the states in McGirt.[22]
In response, Castro-Huerta argues that precedent stands on his side and that the statutory interpretation undertaken by the Court of Criminal Appeals was correct. In analyzing precedent, Castro-Huerta first points to Williams v. United States,[23] where the Supreme Court held that:
“[w]hile the . . . courts of the State . . . may have jurisdiction over [criminal] offenses committed on this reservation between persons who are not [American] Indians, the . . . courts of the United States . . . have jurisdiction over offenses committed there . . . by one who is not an [American] Indian against one who is.”[24]
Next, Castro-Huerta argues that Williams v. Lee,[25] a civil case involving non-American Indians suing American Indians for a dispute that happened in Indian country, bolsters his case.[26] There, the Supreme Court held that state courts did not have jurisdiction because allowing it would “infringe on the right of the [American] Indians to govern themselves.”[27]
In analyzing the decision of the Court of Criminal Appeals, Castro-Huerta essentially takes the opposite position of Oklahoma. In ascertaining the meaning of “sole and exclusive jurisdiction,” Castro-Huerta argues that the phrase is meant to parallel federal enclaves, where state law is inapplicable.[28] Additionally, Castro-Huerta notes that if Oklahoma’s statutory interpretation is correct, Congress would have had no need to specifically give certain states criminal jurisdiction over crimes involving American Indians on reservations.[29] Castro-Huerta’s argument is, in essence, that if state jurisdiction already extended to crimes involving American Indians in Indian country, Congress would not have assumed the opposite.
If the Supreme Court decides that states have concurrent jurisdiction in criminal cases where the defendant is not ana American Indian but the victim is, the implications will be felt much farther than the bounds of the Sooner State. Although many of the largest reservations, such as the Navajo Nation which encompasses parts of Arizona, New Mexico, and Utah, lie in the western part of the United States, reservations can be found in half of the states.[30] In addition to greatly reducing the judicial autonomy afforded to the Five Tribes of Oklahoma after McGirt and its subsequent state court cases, a decision in favor of Oklahoma in Castro-Huerta could fundamentally reorder the way that state criminal law is applied in Indian country across the United States.
[1] “Indian country” is a legal term of art used to refer to lands under the control of federally recognized tribes. For the sake of accuracy, it is used in this article with the same meaning as the Major Crimes Act, the General Crimes Act, and the caselaw interpreting those statutes.
[4] The term “American Indian” was chosen for use by the author throughout this blog. Where an alternative term is used, the different term was the result of a quote or another source.
College athletics has undergone a seismic shift. For decades, athletes participating in Division I college athletics were unable to receive compensation for the use of their name, image, and likeness (“NIL”), and they risked becoming ineligible to participate in their sport for doing so.[1] Today, National Collegiate Athletic Association (“NCAA”) guidelines allow student athletes to profit off of their NIL,[2] over half of states have enacted some form of NIL legislation,[3] and progress is being made toward federal NIL legislation.[4]
In National Collegiate Athletic Association v. Alston,[5] the United States Supreme Court provided a push for the NCAA to change course with respect to NIL rules.[6] While the majority of the Court avoided the question of NIL on review,[7] Justice Kavanaugh’s concurrence squarely attacked the issue.[8] Justice Kavanaugh expressed doubt that the portion of the NCAA’s compensation rules that were unaddressed by the majority (including NIL) were legally valid, stating that “[t]he NCAA’s business model would be flatly illegal in almost any other industry in America.”[9] Finally, seeing potential difficulties in changing NCAA compensation rules through litigation, Justice Kavanaugh proposed that the issue could be resolved through either legislation or collective bargaining by the student athletes themselves.[10] In any event, the writing was on the wall for the NCAA, which decided to take action.
Just nine days after the Alston opinion, on June 30, 2021, the NCAA announced a change to its compensation rules that allowed student athletes to profit from their NIL beginning the next day.[11] Now, student athletes in states that have passed NIL legislation “can engage in NIL activities that are consistent with the law of the state where the school is located.”[12] Further, student athletes in states without NIL legislation “can engage in this type of activity without violating NCAA rules related to name, image and likeness.”[13] So long as it is consistent with applicable law, student athletes can also engage a professional service provider for NIL activities.[14] At least for the time being,[15] gone are the days of students being forced to choose between NCAA eligibility and compensation for their NIL.[16]
Today, twenty-eight states have passed NIL legislation with varying nuances and restrictions.[17] Common restrictions include prohibiting contracts from extending beyond the time an athlete participates in sports at a particular institution,[18] directly tying compensation to participation,[19] otherwise known as “pay-for-play,”[20] and allowing institutions to restrict athletes’ use of team logos for personal NIL activity.[21] Moreover, some states prohibit specific industries from contracting with student athletes.[22] Prohibited industries include adult entertainment, alcohol, tobacco, and firearms.[23] Other states, favoring a more ambiguous approach, prohibit all industries that “negatively impact[] the reputation or the moral or ethical standards” of the institution.[24]
North Carolina is poised to be a key player in NIL based on its position in college sports. Home to Duke University and the University of North Carolina at Chapel Hill, each with multiple NCAA basketball championships,[25] and the current top two football teams in the Atlantic Coast Conference (“ACC”)—Wake Forest University and North Carolina State University[26]—the State has the potential to attract top-flight high school talent to its institutions. Roy Cooper, the Governor of North Carolina, signed an Executive Order regarding NIL on July 2, 2021, providing guidance on the future of NIL in the state.[27] Student athletes in North Carolina can now “earn compensation, and obtain related representation, for the use of their name, image, and likeness while enrolled at the institution, and such compensation and representation . . . shall not affect a student-athlete’s scholarship eligibility.”[28] Restrictions include prohibitions against the use of NIL contracts “as a direct inducement to enroll . . . at a particular institution.”[29] Further, the institutions themselves may not compensate student-athletes for use of their NIL.[30] Similar to Mississippi,[31] institutions in North Carolina “may impose reasonable limitations or exclusions on the categories of products and brands that a student-athlete may receive compensation for endorsing” when the institution “reasonably determines that a product or brand is antithetical to the values of the institution or that association with the product or brand may negatively impact the image of the institution.”[32] Moreover, as is the case in Illinois,[33] an institution in North Carolina “may limit a student-athlete’s compensation for their name, image, and likeness as it pertains to use of the institution’s intellectual property,” and the Executive Order does not give “any student-athlete the right to use the name, trademarks, service marks, symbols, logos or any other intellectual property that belong to an institution, athletic conference, or athletic association.”[34] Finally, in anticipation of an influx of NIL compensation for student-athletes, “[p]ostsecondary educational institutions are encouraged to provide financial literacy and life-skill programs to their student-athletes.”[35] Therefore, Governor Cooper’s Executive Order provides the framework for NIL dealings in North Carolina, though this is unlikely to be the end of the issue.
Beyond state legislation, Senator Roger Wicker of Mississippi declared that there is “broad consensus” that the federal government should pass NIL legislation, which would unify the various restrictions of states under one common federal standard.[36] Even the President of the NCAA, Mark Emmert, called on Congress for a “federal framework.”[37] Emmert and others claim that the current “patchwork” of state NIL legislation leads to confusion and an uneven playing field in college athletics.[38] Therefore, while the current landscape of NIL in college athletics remains a variety of state laws and, in states without NIL legislation, NCAA rules, preempting federal legislation is likely to pass and reshape college athletics once again.
[1]See Matthew N. Korenoski, O’Bannon v. NCAA: An Antitrust Assault on the NCAA’s Dying Amateurism Principle, 54 Duq. L. Rev. 493, 497–98 (2016).
[18]See, e.g., Fla. Stat. Ann. § 1006.74(2)(j) (2021) (“The duration of a contract for representation of an intercollegiate athlete or compensation for the use of an intercollegiate athlete’s name, image, or likeness may not extend beyond her or his participation in an athletic program at a postsecondary educational institution.”).
[19]See, e.g., Exec. Order No. 2021-418 (Ky. 2021).
[21]See, e.g., Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).
[22]See, e.g., Ark. Code Ann. § 4-75-1307(b) (Westlaw through the 2021 Regular and First Extraordinary Session of the 93rd General Assembly) (effective Jan. 1, 2022).
[24]See, e.g., Mississippi Intercollegiate Athletics Compensation Rights Act, Miss. Code Ann. § 37-97-107(14) (Westlaw through the 2021 Regular Session).
[33]See Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).
Banks Griffin
