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Black on Black Representation

Alexis Hoag

When it comes to combating structural racism, representation matters, and this is true for criminal defense as much as it is for mental health services and education. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches. First, it connects indigent representation to existing literature from other fields—clinical therapy and education—both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients. To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust, factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to people who qualify for appointed counsel.

Simplistic Structure and History in Seila Law

Sasha W. Boutilier

In Seila Law LLC v. Consumer Financial Protection Bureau, the Supreme Court split 5–4 on appointing party lines in striking down for-cause removal protections for the Bureau’s single Director as violating the constitutional separation of powers. Chief Justice Roberts’s majority opinion expounded a novel principle: Significant executive power may not be concentrated in any single individual in the executive branch unless that individual is removable at-will by the President. This Note argues that the majority’s usage of structure and history to constitutionalize this principle was deeply flawed. It is unconstrained by any particular interpretive commitments. Further, it is internally inconsistent, logically flawed, historically opportunistic, and unsupported by a pragmatic consideration of the issue. And the Court’s subsequent decision, Collins v. Yellen—extending Seila Law to invalidate removal protection for the Director of the Federal Housing Finance Agency—has only exacerbated Seila Law’s flaws. I conclude with reflection on agency independence post-Seila Law and a call for pragmatic deference to the political branches.

Parsing Partisanship and Punishment: An Approach to Partisan Gerrymandering and Race

Janai Nelson

The threat of extreme and punishing partisan gerrymandering has increased exponentially since 2019 when the Supreme Court held partisan gerrymandering claims nonjusticiable. Although the Court was unanimous in recognizing that partisan gerrymandering can undermine the fair functioning of the electoral process, neither Rucho’s majority nor its dissent acknowledged the unique harm partisan gerrymandering visits upon the operation of our multiracial, multiethnic democracy when coupled with the upsurge of conjoined racial and partisan polarization. The Court’s failure to establish a limiting principle for the degree to which partisanship can usurp the redistricting process means that there is no federal guidance to cabin partisan gerrymandering and no measure to take account of the race-driven effect of the group lockout that partisan gerrymandering often produces. Absent this critical instruction from the Supreme Court, lower courts, civil rights advocates, and affected voters must turn to racial gerrymandering jurisprudence to discern first principles to guide a judicial response to partisan gerrymandering’s particular relation to and compounded effect on account of race. Fortunately, there is a through line from Rucho to the Court’s racial gerrymandering jurisprudence that plausibly permits federal courts to address hybrid racial and partisan gerrymandering claims and parse pure partisanship from punishment—if they are willing.

Fostering Discrimination: Religious Exemption Laws in Child Welfare and the LGBTQ Community

Adrianne M. Spoto

In response to increasing rights for LGBTQ individuals in the United States, particularly the Supreme Court’s affirmation of the right to same-sex marriage in Obergefell v. Hodges, eleven states have imposed laws or policies permitting child welfare organizations to deny services in accordance with their religious beliefs. These measures generally prohibit the state from “discriminating against” religious child welfare organizations by denying them funding or program participation when they refuse to provide services based on their religious beliefs. This Note provides an overview of these religious exemption laws and ultimately argues that, by requiring government funding of discriminatory child welfare organizations, the laws are unconstitutional under the Establishment Clause. The Note begins by considering relevant details about adoption and foster care systems in the United States. It then turns to the laws and policies in question, discussing their provisions, motivations, and impact. Then, taking two specific laws as examples, it analyzes these laws’ constitutionality, arguing for their invalidity under several approaches to understanding the Establishment Clause. By favoring certain religious viewpoints over others, permitting religion to dictate who receives government benefits and services, and imposing burdens on third parties (particularly LGBTQ prospective parents and youth), religious exemption laws ignore the line between church and state in violation of the Establishment Clause.

The Continued Relevance of the Equal Access Theory of Apportionment

J. Colin Bradley

The one person one vote doctrine contains a core ambiguity: Do states need to equalize the voting strength of voters in each district? Or do they need to equalize the total number of people in each district? This difference matters when demographic trends lead to large numbers of noncitizens living in some districts but not others. When that happens, equalizing the total population across districts leads to large differences in the number of voters in each district and differences in the voting power of voters across districts. In 1990 the Ninth Circuit held in Garza v. County of Los Angeles that the First and Fourteenth Amendments together require states to equalize the total population across districts, no matter the distribution of noncitizens and other ineligible voters. But that approach has not caught on, and recently the Supreme Court signaled that it thinks the Garza approach is inconsistent with the leading Supreme Court precedent of Burns v. Richardson, which allowed Hawaii to equalize the number of registered voters rather than the total population across districts. This Essay provides a reading of Burns according to which it holds that the goal of apportionment is to fairly distribute representatives across the to-be-represented population—the group of more or less permanent residents who belong to the political community—and that sometimes the total population reported in the Federal Census is an inaccurate measure of this. Thus, Burns should not stand as an obstacle to a modern acceptance of the Garza approach if the Court is forced to revisit these issues after the 2021 redistricting of state legislatures.

Battle Lines/Ballot Lines: Democracy Stabilization and Election Administration

Joseph Krakoff

The prelude of the 2020 election is marred by dark projections of large-scale violence that could disrupt voting or a prolonged count of mail-in ballots requested due to the COVID-19 pandemic. Academics agree that this situation is unlikely to be an isolated occurrence. Rather, extreme polarization risks making violent elections a new norm in American life. Even if violence fails to materialize in November 2020, it is still worthwhile to engage in legal scenario planning to ask the question: What if? This Essay sketches a preliminary, incomplete answer to that question from the perspective of courts.

Taking as an example a complaint seeking to enjoin the Trump campaign from inciting violence, this Essay begins from the assumption that existing Fourteenth Amendment doctrine, forged in the era of 1960s desegregation, lacks a register to fully conceptualize the novel assaults on American democratic institutions today. Specifically, courts tend to employ a strict individual rights focus, which lacks the ability to conceptualize assaults on democracy that do not intentionally target any particular voter and, uncomfortably, asks courts to step into an ex ante regulatory role more familiar for a federal agency than the judicial branch. To fill that gap, courts could learn from international democratic backsliding. Specifically, the concept of a “strategy of tension” lends analytical rigor to scenarios in which regimes actively seek to foment civil unrest, cracking down on opponents and encouraging extrajudicial violence. This framework allows one to recognize such harms as injuries to democracy itself that endanger the supreme democratic principle of the state’s monopoly on the legitimate use of violence, a foundational principle of liberal governance. With that conceptualization in hand, this Essay concludes by forwarding a potential role for courts “in the breach” as exercising emergency powers to stabilize democracy under extreme stress.

A Poll Tax by Another Name: Considering the Constitutionality of Conditioning Naturalization and the “Right to Have Rights” on an Ability to Pay

John Harland Giammatteo

Permanent residents must naturalize to enjoy full access to constitutional rights, particularly the right to vote. However, new regulations from U.S. Citizenship and Immigration Services (USCIS), finalized in early August and originally slated to go into effect one month before the 2020 election, would drastically increase the cost of naturalization, moving it out of reach for many otherwise-qualified permanent residents, while at the same time abolishing any meaningful fee waiver for low-income applicants. In doing so, USCIS has sought to condition naturalization and its attendant rights on an individual’s financial status.

In this Essay, I juxtapose the new fee regulations with a growing caselaw and scholarly literature about financial status, voting, and an individual’s ability to pay. Placed alongside the ability-to-pay caselaw—including Griffin v. Illinois and Bearden v. Georgia and, more recently, the litigation about Florida’s felony disenfranchisement provisions—it is clear that the new fee policies should be seen as due process and equal protection violations and struck down. I conclude by noting possibilities for litigation or legislation that would preserve a meaningful safety valve to allow low-income individuals to realize the full benefits of naturalization and access all the rights that come with it.

Congress’s Article III Power and the Process of Constitutional Change

Christopher Jon Sprigman

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that is how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which the Supreme Court has never spoken definitively.

In this Article I argue that Congress, working through the ordinary legislative process, may remove the jurisdiction of federal and even state courts to hear cases involving particular questions of federal law, including cases that raise questions under the Federal Constitution. Understood this way, the implications of Congress’s Article III power are profound. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. Compared with judicial review, the political constraint is, of course, less formal and predictable. But that does not mean that the political constraint is weak. A successful exercise of its Article III power will require a majority in Congress, and, in most instances, a President, who agree both on the substantive policy at issue and on the political viability of overriding the public expectation that Congress should face a judicial check. In such instances, we should welcome the exercise of Congress’s Article III power. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Price Tags on Citizenship: The Constitutionality of the Form N-600 Fee

Juan Esteban Bedoya

Proof of citizenship is of paramount importance. In the United States, the need for citizenship documentation is particularly acute in light of heightened immigration enforcement. For U.S. citizens born abroad, proof of citizenship can be obtained by submitting a Form N-600 to United States Citizenship and Immigration Services, which in turn provides a Certificate of Citizenship. Although these individuals are entitled to citizenship and all of its benefits by statute, they are required to pay $1170 in order to obtain this Certificate. This Note seeks to analyze the constitutionality of this exorbitant fee. Determination of citizenship confers with it important rights and several privileges, such as access to employment, the ability to vote and seek public office, and many other government benefits. Perhaps more importantly, determination of citizenship also confers protection—protection from detention, from removal proceedings, and from deportation. This Note analyzes the viability of a constitutional challenge to the $1170 filing fee through a procedural due process claim, the importance of which is underscored by the life-altering consequences of citizenship as well as the benefits and protections it affords. Simply put, access to the benefits of citizenship should not turn on a citizen’s ability to pay a prohibitively expensive fee; the Constitution demands greater protections.

Permanently Excluded

Maia M. Cole

New York City Housing Authority (NYCHA) deprives hundreds of residents of their housing every year without affording them due process. Based on the allegedly undesirable behavior of one household member, NYCHA can begin a termination of tenancy action against an entire family. Using the threat of termination as leverage, NYCHA coerces the tenant of record into permanently excluding the “undesirable” occupant, barring them from living with or visiting their family. The excluded family member is given no notice of the termination action and no opportunity to contest their permanent exclusion.

This Note contends that authorized occupants in NYCHA housing have due process rights which mandate notice and the opportunity to be heard before they lose their home. NYCHA does not currently recognize such rights. But, as this Note will show, authorized occupants have a property interest in public housing. NYCHA’s practice of permanent exclusion deprives them of that interest. This Note suggests alternatives for NYCHA to consider instead of relying on permanent exclusion as a means of crime reduction. Ultimately, the goal of this Note is to push NYCHA to live up to its mission: to provide decent and affordable housing to low-income New Yorkers.

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