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Hog Farm Lawsuits of North Carolina

Facts: 

Murphy-Brown, a branch of the hog-production-industry superpower, Smithfield, was sued in 2014 by over 500 citizens in North Carolina for environmental damage, affecting community health and property enjoyment. These claims were condensed into 26 cases, the first five of which went to trial. Of those five, Murphy-Brown attempted to appeal one district court’s decision to a Fourth Circuit Court which rejected the appeal in November 2020.

The decision of the district court heavily stemmed from damages citizens suffered as a result of these hog farms processing pigs at a massive scale. The pigs were held in CAFOs (Concentrated Animal Feeding Operations), essentially metal warehouses where pigs risked suffocation due to the close proximity. Because workers were unable to clean fecal waste in such confined spaces, metal slats in the floor collected and ejected the waste into open-air lagoons. In this particular case, the hog farm produced 153,000 pounds of waste every day.  

Due to the massive amount of fecal waste produced, the CAFOs became filled with a toxic gas, hydrogen sulfide. So, Murphy-Brown built fans, expelling the noxious fumes into the open air. The waste collected in the lagoons produced horrible odors and allowed for more fumes to settle. The damages caused by this waste mismanagement were twofold. First, there were negative effects on human health, which include, but are not limited to, increased child mortality, rates of cancer, depression, and antibiotic resistance. Second, the ability to enjoy property had been heavily diminished. The odor stemming from the lagoons and pig carcasses, which attracts flies all along neighbouring properties, and the noise of trucks arriving at all hours of the night, caused citizens to suffer on their own property. Despite all of these consequences, Murphy-Brown refused to comply with an agreement with North Carolina’s Attorney General to employ safer, healthier technologies.

Throughout the course of the trial, the primary arguments made on behalf of the community members suing Murphy-Brown were as follows: (1) Murphy-Brown actively regulated and instructed the hog farms on how to manage the fecal waste. (2) They did so, fully aware of the dangers that came with using fecal waste lagoons. (3) Murphy-Brown had access to safer technology but refused to implement it.

Another aspect to consider is the clear embodiment of environmental racism. These hog farms in North Carolina are concentrated near impoverished communities and the “Black Belt,” both of which consistently have higher rates of poverty and people of color. Consequently, all studies on the effects of hog farms on community health have concluded an array of disproportionate impacts on communities of color and poverty.

Holding/Reasoning: 

In the original case, juries empathized with community members, awarding $75,000 in compensatory damages per person, and a total of $5 million in punitive damages, which was reduced to $2.5 million due to North Carolina’s punitive damages cap. 

Upon this verdict, Murphy-Brown filed an appeal for a new trial, arguing that while . Murphy-Brown did contract farms into processing hogs for them, the consequences of waste management was the fault of the farms and not of Murphy-Brown. Murphy-Brown also asked for a reevaluation of the final sum that Murphy-Brown would be required to pay. 

Out of a 3 judge panel, 2 affirmed the district court’s decision, and 1 dissented in part. Judge Wilkinson gave an emotionally-charged concurring opinion, addressing the presence of environmental racism, saying:

“At the end of all this… lies an uncomfortable truth: these… conditions were unlikely to have… arisen at all had the neighbors of [the farm] been wealthier or more politically powerful.”

The third judge, Agee, agreed with most decisions made at the district court level, but believed a new trial was necessary due to the district court’s decision to limit some expert witness testimony.

Implications:

This case is significant because it is one of the first to address environmental racism. While further nuisance claims against Murphy-Brown are barred by current North Carolina law, this case allows for historically-oppressed communities to bring forth cases of disproportionate environmental impacts. This case also evaluated the current management in hog farms of North Carolina, swaying public opinion to move towards phasing out these hog lagoons, pushing for more legislation regulating the management of waste and quality of life for the pigs.

Nicole Masarova is from Foster City, California, studying Public Policy.

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First Amendment Rights of Judges and other Public Employees (Part II of IV): Republican Party of Minnesota v. White (2002)

Judges are meant to be nonpartisan parts of the government, as has been emphatically mentioned by Chief Justice Roberts. Although Supreme Court justices can themselves pretend that the position of federal justices is completely devoid of partisan taint, and only considers the law from an unbiased matter, reality shows otherwise. The extreme politicization of judicial confirmations, including those of Justices Gorsuch, Kavanaugh and Barrett, make us realize that indeed, many legal conundrums do not have an obvious, explicit formulation in the law. Entirely opposing viewpoints could be argued for, with the argument pretending to trace back to some clause in the Constitution through a flimsy line of logic. There is simply no ‘right answer’ according to the law, it simply depends on which side the judge supports – views remain irreconcilable. For example, even scholars who are otherwise personally supporters of access to abortion have considered Roe v. Wade to be poorly based on constitutional law, because the link from the Due Process Clause to right to privacy to right to abortion is a stretch of logic. So, if abortion is not mentioned in the Constitution anywhere, how a judge will rule on abortion merely depends on his personal views. Thus, both sides can accuse judges of ‘judicial activism’.

Justice Ginsburg, during her confirmation hearings, refused to elaborate on her opinion on issues like the death penalty, because she felt that she could have to vote on it, if confirmed. She might have been overwhelmingly voted in by the Senate, but future hearings like that of Justice Barrett have seen support divided on partisan divisions, despite a similar silence on “matters of policy”. Clearly, through past writings and previous decisions, it is often easy to note where a judge stands on a particularly contentious issue. So, both silence and explicit discussions by judge nominees seem to be merely a matter of protocol.

Let us examine the case now. Minnesota had a state judicial code of ethics with an ‘announce clause’ that constrained candidates seeking to be elected as judges from discussing issues that could come before them if elected and announcing their views. Gregory Wersal, a candidate for the position of Associate Justice in the Minnesota Supreme Court, had earlier distributed literature critical of several Minnesota Supreme Court decisions. An ethics complaint filed in 1996 when he first ran for the office was dismissed, and in 1998, when he ran again, he filed a suit in the Federal Court, joined by the Republican Party of Minnesota, that the ‘announce clause’ violated his freedom of speech and prevented a meaningful campaign, as the voters could not know his positions before deciding whom to vote for.

Both the District Court and the Federal Court of Appeals ruled that the ‘announce clause’ was legal, but the Supreme Court, on reappeal, ruled 5-4 that the ‘announce clause’ was unconstitutional because it prohibited a judicial candidate from stating his views on any specific legal question within the province of the court for which he is running, except in the context of discussing past decisions—and in the latter context as well, if he expresses the view that he is not bound by stare decisis. In the main opinion authored by Justice Scalia, speech about the qualifications of candidates for public office was considered at the core of the First Amendment and could not be violated. The clause was not narrowly tailored enough to survive the legal process of ‘strict scrutiny’ for a compelling state interest. The opinion of the court also refutes Justice Ginsburg’s dissent (covered later) and maintains that the Announce Clause restricts the ability for a fair election. It is impossible for a judge to have no preconceived opinion regarding any legal issue – the fitness of a judge more so depends on the degree of openness to consider arguments of both parties. Justice Kennedy, when concurring, went even further, that state interest should not even be considered, and that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests.

Justice O’Connor did join the majority opinion, but in her concurring opinion, she brought out some bigger unresolved issues regarding the process of judicial nominations. Later, she had mentioned that she questioned her decision in this case later on. At the time of ruling, she questioned the process of judicial elections at the state level and its possible flaws. In the USA, federal judicial positions are confirmed by the Senate on nomination by the President. Of course, different political and otherwise groups do lobby candidates to the President for nomination. Depending on the party in control of the Senate, candidates can get selected or rejected. State-level judicial positions, however, still depend on elections, and they are voted in by the populace.

Justice O’Connor’s concurring opinion reminded us that if judges are subject to regular elections, they can never be completely impartial – this is because, if they rule an unpopular opinion based on the laws, the unhappy public could vote her out in the next election! Moreover, judicial campaigns, like any other campaigns, need a lot of funding, and unless a candidate is very wealthy, they need donations from companies and organizations, and this could raise potential for conflict of interest. Some states follow the Missouri Plan, where judges are nominated by a commission and selected by the governor, and only face a retention election in front of the public after 12 months. In so far as a judge becomes ‘partial’ to respect popular sentiment, mob rule supersedes established law. Thus, Justice O’Connor was skeptical about judicial elections in the first place.

While this process lessens the problem, not all states follow this plan. Even if elected officials select judges, decisions to confirm or reject a judicial candidate become intertwined with the elected official’s future political support. Consider the 2020 elections, where the state of Maine overwhelmingly supported the Democrat Presidential candidate Joe Biden, but still voted Republican Senator Susan Collins into another term. Her final vote against the confirmation of Justice Barrett meant a lot of otherwise Democrat voters retained faith in her.

There were two dissents – one by Justice Ginsburg (joined by Justices Souter, Stevens and Breyer). The other dissent was by Justice Stevens (joined by Justices Ginsburg, Souter and Breyer). The former dissent, scathing in nature, pointed out the more idealist stance that judges should be considered as non-political actors providing justice. Thus, even if judges are subject to election, their selection process should not be identical to political actors. The limitations and statutes of the Announce Clause in Minnesota were perfectly reasonable in which statements framed at a level of generality or qualified statements are permitted. However, the code of conduct did not allow statements that indicated full commitment to a position on an issue as it would indicate how the person, if a judge, would rule on all possible issues. Justice Ginsburg considers the remaining of this separation as a goal in the interests of the State, which it can enforce.

Angikar Ghosal is from Kolkata, India, studying Mathematics and Computer Science with a minor in Economics.

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State of Minnesota v. Francios Momolu Khalil

Facts:

On March 24, 2021 the Supreme Court of Minnesota ruled in State of Minnesota, Respondent v. Francois Momolu Khalil, Appellant. Francois Momolu Khalil was convicted of one count of third-degree criminal sexual conduct for raping an intoxicated woman while she was unconscious in 2017. J.S, the victim, had been drinking alcohol and had taken a prescription narcotic when she and a friend were approached by Khalil and two other men who invited them to a party. They went, only to find that there was no party. While there, J.S passed out on the couch and awoke to find Khalil sexually assaulting her. Despite her protests for him to stop, he continued.  

Both the State and Khalil agree that a fifth-degree criminal sexual conduct (non consensual sexual conduct) would have been appropriate based on the facts of this case. However, for first time offenders, this would result only in a gross misdemeanor, not a felony. The third-degree criminal sexual conduct that Khalil was charged with involves the assailant knowing that the victim is “mentally capacitated.” According to the relevant Minnesota statute, “‘mentally incapacitated’ means that a person is under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgement to give a reasoned consent to sexual conduct or sexual penetration.” During the district court trial the jury was told the following

“Mr Khalil knew or had reason to know that [J.S.] was mentally incapacitated or physically helpless. 

A person is mentally incapacitated if she lacks the judgement to give reasoned consent to sexual penetration due to the influence of alcohol, a narcotic, or any other substance administered without her agreement.” 

These instructions were given without a comma in between “any other substance administered” and “without her agreement.” This is plausibly, at least partly, why the jury required clarification from the court as to whether voluntary intoxication of alcohol fit within the statutory definition of “mentally incapacitated.” The district court determined that voluntary intoxication was sufficient to be considered “mentally incapacitated.” 

Khalil argued that the district court was incorrect in affirming this reading of the statute and that in order for a person to be “mentally incapacitated” the alcohol must have been administered to without the person’s agreement. This was the question before the Court. 

Holding/Reasoning: 

Justice Thissen delivered the unanimous decision which ruled in favor of Khalil- that in order to be convicted of third-degree criminal sexual conduct, Khalil must have known or had reason to know that J.S was intoxicated without her consent. Because there is a lack of reasonable doubt that the instructions the jury were given by the district court did not impact Khalil’s conviction, the district court is required to hold a new trial. While an ordinary, intuitive understanding of the words “mentally incapacitated” might include voluntary intoxication, this is not applicable in this case because the Minnesota Legislature expressly defined the term. The Court’s role is not to determine the accuracy or propriety of a decision made by a duly elected branch of government, but to interpret and carry out such legislative directives. This approach “reflects a structural understanding that legislators are the elected representatives of the people and that legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues.” 

Justice Thissen notes that Khalil’s interpretation of the statute is most accurate based on the text, structure, and punctuation. The statute includes a qualifier (“administered to that person without the person’s agreement”) preceded by series of similar nouns (intoxicating substances) which grammatically indicates that the qualifier is meant to apply to each of the nouns, especially because of the comma which separates the series from the qualifier. There is no precedent that supports the State’s argument that the qualifier applies only to “any other substance” and there is precedent to support the qualifier encompassing a preceding succession of nouns. 

Implications: 

This case calls attention to the necessity of conversations regarding sexual assault in the United States, especially with regards to statutory laws that are currently in effect all across the country. According to the Minnesota County Attorneys Association’s amicus brief filed for this case, 10 million women in the U.S have been raped while under the influence of drugs and alcohol. More generally, CDC statistics show that nearly 1 in 5 women and 1 in 28 men have experienced attempted or completed rape during their lifetimes. The FBI, using the Uniform Crime Reporting definition of rape, reported that there were 139,380 offenses made known to law enforcement in 2018 and the Bureau of Justice found that there were 459,310 known rape/sexual assault cases in 2019 (using a separate methodology that considers sexual assault separately from rape). 

Furthermore, this case highlights an important principle in American politics, namely the distinction between constitutional law and legislatively made statutory rights. Ultimately, many of the protections and rights that are currently enjoyed by citizens come from the state legislatures and Congress. Unless there are claims of unconstitutionality, oftentimes the judiciary is bound, or at least feels bound, to decide cases based on what existing laws say (even when those laws are immoral and/or faulty- as was the case here). There may be reasonable disagreements as to what laws mean (which is why the judiciary exists) but in these situations, citizens must put pressure on their state and federal representatives to make changes to the laws and to close loopholes that exist, particularly for such important and sensitive topics as sexual assault and rape. As mentioned in a footnote in the decision, the Minnesota Legislature formed a Criminal Sexual Conduct Statutory Reform Working Group to review state criminal sexual conduct laws and make recommendations, which they did in January 2021 as the case was pending before the Minnesota Supreme Court. It is extremely important not to solely or primarily rely on judges and justices to provide all the protections but to continue to build a strong and vocal electorate that can put enough pressure on their elected representatives to make the changes that need to be made so there is complete justice for all victims.

Megan Gerges is from Warren, NJ, studying Political Science and Psychology.

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Pereida v. Wilkinson

Facts: 

In the midst of discussions regarding the surge of immigration on the southern border, the Supreme Court recently ruled against Clemente Pereida, an undocumented immigrant who arrived almost 25 years ago. Pereida, who has a wife and three children, including an American citizen and a DACA recipient, was convicted for criminal impersonation under a Nebraska state law after using a fake Social Security Number to obtain a job- a conviction that came in the midst of a removal proceeding against him for unlawful entry. Under the federal Immigration and Nationality Act (INA), undocumented immigrants who have been in the country for a minimum of 10 years, have “good moral character,” have not been convicted of particular crimes (including crimes of moral turpitude), and have relatives that are American citizens or legal residents for whom the removal would create an “‘exceptional and extremely unusual’ hardship” become eligible to request a cancellation of the removal order from the Attorney General. However, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a maximum of 4,000 cancellations per year are allowed which gives the Attorney General discretion in accepting or rejecting such requests. 

The Nebraska law which Pereida has been convicted of breaking includes crimes entailing moral turpitude and one crime that does not (running a business without the necessary licensing). It was not specified which provision Pereida was convicted of violating. The immigration judge concluded that because Pereida was unlikely to have run a business without a license, his crime must have involved moral turpitude, making him ineligible for relief. The Board of Immigration Appeals and Eighth Circuit agreed that there was ambiguity regarding which  provision Pereida was convicted of and held that he holds the burden of proof for demonstrating eligibility, a burden he failed to meet.

Holding:

In a 5-3 decision, the Supreme Court agreed that if there is ambiguity about a conviction involving a statute that lists several separate crimes —some of which would render the individual seeking relief ineligible —the individual has not met the requisite burden of proof and is hence ineligible. Pereida is thus disqualified from seeking a cancellation of his removal order.

Justice Gorsuch wrote the majority opinion which was joined by Chief Justice Roberts, Justice Thomas, Justice Alito, and Justice Kavanaugh. Justice Breyer wrote the dissenting opinion which was joined by Justice Sotomayor and Justice Kagan. Because oral arguments were heard prior to the confirmation of Justice Barrett, she was not a part of this case. 

Reasoning:

Justice Gorsuch argues that the INA explicitly requires those seeking cancellation to prove that they fully meet eligibility requirements. Therefore, any skepticism as to whether the individual qualifies is enough to defeat the request. Pereida agrees that uncertainties as to whether he meets the other three requirements would render him ineligible, but he desires a different rule to apply to the qualification he has not met with certainty. Gorsuch finds that there is nothing to substantiate the differential treatment of this one requirement. Furthermore, Gorsuch finds that the INA requires those trying to enter the United States to bear the burden of proving that they qualify to be admitted. He argues that it would make little sense for Congress to require those seeking entry carry that burden but not those who have unlawfully entered and are being legally removed. 

In contrast to the conclusions reached by the dissent, Gorsuch insists that the “categorical approach” does not change the burden of proof obligation. Under this approach (see Taylor v. United States), courts are required to determine whether a conviction under the Nebraska statute necessarily means committing moral turpitude as listed under the INA, not whether the facts of Pereida’s conviction or his actions constitute moral turpitude. However, because the Nebraska statute is divisible, a “modified categorical approach” is used. This allows courts to look at certain documents regarding the conviction to determine which provision the individual was convicted under. Pereida argues that, theoretically, one can be convicted under the law without having committed fraud (a component of moral turpitude) and therefore the statute does not meet the standard of necessarily committing moral turpitude. Gorsuch responds that, to determine this hypothetical question, the Court must inquire as to what the actual conviction was (through the modified categorical approach). In a divisible statute, Pereida would still have the burden of showing which provision he was convicted under in order to show that it is theoretically possible to violate the law without committing moral turpitude. Because Pereida has failed to introduce evidence that could mediate this ambiguity, he has not adequately shown that he has not committed a crime of moral turpitude.

Lastly, in response to Pereida’s concerns about the possibilities of deportations occurring when records are incomplete or unavailable (which were beyond the individual’s control), Gorsuch asserts that Perida did not mention this to be the case for him, and based on all available facts, it was not. In regards to possibilities of record-keeping failures as related to who should bear the burden of proof, it was well within Congress’s power to decide to place that burden on the individual seeking relief.  

Dissent: 

In contrast, Justice Breyer argues that the burden of proof argument is irrelevant. According to him, the categorical and modified categorical approaches are what is pertinent. Thus the Court is responsible for determining whether Pereida’s conviction under Nebraska law necessarily means he is guilty of moral turpitude under the INA. Ambiguity logically leads to the conclusion that moral turpitude was not necessarily found within the allowable documents (from the modified categorical approach) and therefore it cannot be said that Pereida was convicted of a crime that involved moral turpitude. He is consequently not ineligible. 

Justice Breyer additionally contends that the Court’s decision will lead to inefficiencies in the legal system and unfair practices- including the potential for defendants to lose benefits from their plea deals and be deported due to inconclusive or incomplete records that were outside of their control. 

Implications: 

Given that the Court was split ideologically when deciding this case, the outcome is not a surprise. This decision will limit the ability for certain undocumented immigrants to request a cancellation of their removal orders due to individual circumstances- although cancellation is never guaranteed. This may also remove discretion from immigration judges when ambiguities and uncertainties exist in available and relevant documents. For those individuals, they will have no recourse from deportation unless they can meet the burden of proof placed upon them. 

Megan Gerges is from Warren, NJ, studying Political Science and Psychology.

On April 10, 2017, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath to the Honorable Neil M. Gorsuch in a private ceremony attended by the Justices of the Supreme Court and members of the Gorsuch family. The oath was administered in the Justices’ Conference Room at the Supreme Court Building. Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Neil M. Gorsuch in the Justices' Conference Room, Supreme Court Building.  Mrs. Louise Gorsuch holds the Bible.

First Amendment Rights of Judges and other Public Employees (Part I of IV): Rutan v. Republican Party of Illinois (1990)

What extent do judges, or public employees in general, have freedom of speech under the First Amendment? What kind of speech, expression or even association in groups, could disqualify a person from seeking such public office, to ensure that defendants have their due process rights under the Fifth and Fourteenth Amendments protected? What evidence can be used to judge the merit of such claims, and judge the judge themselves? How does this relate to the ethical standards for judicial recusal?

The Senate confirmation hearings of Associate Justice of the Supreme Court Amy Coney Barrett saw an unusually reticent Barrett, unwilling to express opinions on matters of even the slightest legal controversy. Her silence could certainly be due to the politicized controversy regarding her nomination, however a larger trend has emerged. On one hand, the candidature of a nominee gets boosted by the presence of a significant paper trail if the legal opinions support the nominating party; on the other hand, even when the judge has well-formulated opinions on an issue, they maintain a vow of silence on issues in public hearings, considering loquaciousness to be undermining their neutrality. From the relaxed confirmation hearings of Scalia to the present scenario where all past writings are held up and scrutinized, one wonders how the First Amendment applies to judges.

In part one of a four part series, we examine Rutan v. Republican Party of Illinois to interpret the precedents set and the rules consensus has been formed on.

Case I: Rutan v. Republican Party of Illinois (1990)

Through an executive order, Republican governor of Illinois, James Thompson, caused a hiring freeze whereby state officials were prohibited from hiring any employee, filling any vacancy, creating any new position, or taking any similar action without the Governor’s “express permission”. However, the “express permission” petitions became very common, and these were managed by the Governor’s Office of Personnel (Governor’s Office). After screening applicants under Illinois’ civil service system, the Governor’s Office made the final decision. It managed to limit state employment and beneficial employment-related decisions to those who were supported by the Republican Party. The Governor’s Office looked at whether the applicant voted in Republican primaries in past election years, provided financial or other support to the Republican Party and its candidates, or had promised to join and work for the Republican Party in the future, or had the support of Republican Party officials at state or local levels.

Five people brought a suit in the United States District Court for the Central District of Illinois, with allegations of employment discrimination, violating the First Amendment’s speech and association clauses. In a 5-4 ruling, the Court ruled that hiring decisions contingent upon party affiliation violated the petitioner’s First Amendment rights to freedom of speech and freedom of association. The Court determined that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights, however, whether discrimination was actually based on political membership was to be determined by the District Court.

Yet, we see that the political leanings of governmental employees do correlate with the party in power. For example, a well-publicized comparison of congressional interns under Presidents Obama and Trump disclosed how the Democrat party has higher support among racial minorities, while the Republican party has higher support among white Americans. Public sector jobs involve policy work, where the job potentially involves enacting agendas of the ruling party. 

The judicial system was not designed to be partisan, but in legal cases involving politically contentious issues, both Democrats and Republicans consider it important to nominate ideologically conforming justices, who might not be blatantly partisan demagogues, but are more likely to favour certain sides in cases where consensus is hard. Thus, it has resulted in a process where Republican administrations are highly likely to nominate judges approved by the right-wing Federalist Society, where judges nominated by Democrat administrations are more likely to be backed by the American Constitution Society.

This was the exact issue that Justice Scalia pointed out in his dissent (supported by Rehnquist, Kennedy and O’Connor). As pointed out, political patronage and even outright political nepotism has been a baggage of American democracy ever since the presidency of Andrew Jackson. One could not expect the upcoming presidency of Joe Biden to nominate any Federalist Society member for a Federal Court of Appeals lifetime position. In a nation with far more ‘well-qualified’ candidates than number of candidates, ideological conformity has always been a decision factor in selections. For governmental positions, being ‘well-qualified’ has become encompassing ‘willing to carry out the agenda of the ruling party’.

Justice Stevens rebutted to Justice Scalia’s dissent, pointing out that if the age of a pernicious practice were a sufficient reason for its continued acceptance, the constitutional attack on racial discrimination would, of course, have been doomed to failure. Thus, just because a process used to happen from the era of President Jackson onwards does not prevent the Supreme Court from invalidating it.

For a healthy functioning democracy without the tyranny of the majority currently in power, we need checks and balances, and thus the court affirmed similar decisions made in Elrod v. Burns, and Speiser v. Randall. The former decision ruled that firing decisions involving non-policymaking public employees may not be constitutionally based on party affiliation and support pursuant to the First Amendment, even if a particular office has the ‘spoils’ system. On a broader level, the latter decision ruled that speech and free expression are rights fundamental enough that governmental benefits and services cannot be denied on that basis.

On one hand, this rules out partisan discrimination for applicants, however, some governmental offices can attract applicants more oriented to one particular side or the other – resulting in self-selection. The broader issue remains about judges – because although the judiciary is not involved in policymaking directly, judicial decisions do influence future legislative action, for example, as we saw in the case of Ledbetter v. Goodyear Tire & Rubber Co. There, Justice Ginsburg’s sharp dissent showed how, although the majority directly applied the past law formulation of Title VII of the Civil Rights Act of 1964, the law was flawed as it did not account for incremental employment discrimination. The Obama Administration took note, and the legislature passed the Lilly Ledbetter Fair Pay Act of 2009. So, if judges are technically nonpartisan employees, can the appointment process consider the party of affiliation? Clearly, Presidents do select judges based on political leanings, is this process consisting of illegal discrimination?

Angikar Ghosal is from Kolkata, India, studying Mathematics and Computer Science with a minor in Economics.

Affordable Care Act

California v. Texas: Another Challenge to the Affordable Care Act

In 2012, the Supreme Court decided NFIB v. Sebelius, which involved the Patient Protection and Affordable Care Act (“Obamacare”), originally passed by Congress in 2010. Specifically, its “individual mandate” (Section 5000A) has been highly controversial because it forced many Americans to either buy a minimum amount of health insurance or pay a “shared responsibility penalty.” In NFIB, the Court invalidated the individual mandate under Congress’s commerce powers but upheld it as part of Congress’s taxing powers.

In 2017, a Republican-controlled Congress set the individual mandate to zero dollars but left the rest of the ACA intact. Texas and other states sued, generating another constitutional challenge to the individual mandate. They additionally argued that if it is unconstitutional, then the entire ACA is invalid because it is impossible to sever the individual mandate from the rest of the law. California and other states have defended the ACA in response. 

Oral arguments for California v. Texas were heard on November 10, 2020, but the Supreme Court has not yet released a verdict. Arguments have centered around three main questions- whether the plaintiffs have standing, whether the individual mandate is unconstitutional, and, most significantly, whether the entire ACA is invalid if the individual mandate is unconstitutional. 

The Arguments 

The Plaintiffs do NOT have Standing: The Petitioners (California) argue that in setting the individual mandate to zero, Congress did not change the structure of 5000A but instead made it unenforceable. An unenforceable provision is inoperative which implies that violations of the law cannot occur. 

Based on past Court precedent (see Poe; American Book Sellers; Lujan) there must be a legitimate enforcement threat and plaintiffs must present a specific injury. Texas has not adequately demonstrated material harm and Congress has ensured that 5000A cannot be enforced. The 2017 CBO report did state that even with the individual mandate set to zero, a small number of people will enroll in order to comply with the law. However, it was unspecific and lacked supporting data. Furthermore, any paperwork burdens will remain regardless of the constitutionality of 5000A because this paperwork is necessary for other provisions as well. 

If the Court rules that the plaintiffs do have standing, it will create a massive loophole whereby any individual will be able to challenge provisions in statutes on the basis that they are regulated or harmed by other parts of the statute without adequately showing that they have been harmed by the provision in question. 

The Plaintiffs DO have Standing: The Respondents (Texas) argue that plaintiffs suffered an injury because they are currently unable to obtain their pre-ACA insurance plans. Additionally, in both 2008 and 2017, the CBO stated that the mandate would lead to Americans signing up for insurance who would not have otherwise done so. Even if only one person signs up (which is likely), states incur at least one dollar of injury.

There is also a paperwork burden on the states. Even though these forms are independent of 5000A, it is reasonable to conclude that if the individual mandate is deemed unconstitutional the federal government will reduce this burden. 

Lastly, ruling that the plaintiffs have standing in this case will not create loopholes because it is very difficult to exhibit the textual evidence necessary to overcome a presumption of severability.

The Individual Mandate IS Constitutional:  Petitioners state that the Court, in NFIB, characterized 5000A as a choice between buying a minimum amount of insurance or paying a tax. Congress used this structure to set the tax to zero and make 5000A inoperative. Therefore, it is unreasonable to conclude that Congress created a command deemed unconstitutional in NFIB, given their knowledge of the ruling. Congress also informed Americans that they were attempting to make this provision inoperative rather than impose a command. Additionally, Congress zeroing the tax can be somewhat analogized to congressional tax laws that suspend a tax for some years. 

The Individual Mandate is Unconstitutional:  Respondents argue that the individual mandate is a command to purchase the Government’s prefered health insurance. III-A of Chief Justice Roberts’s opinion in NFIB stated that the best reading of the individual mandate is as a command. 

However, in NFIB, the individual mandate was deemed constitutional because, as described in III-B and III-C of the Chief Justice’s opinion, it could be read as a tax due to its revenue-raising function (which is an essential feature of a tax). In California v. Texas, it can no longer be deemed a tax because it does not raise any revenue and cannot raise revenue. Furthermore, the language of the provision uses the word “shall” as opposed to words of encouragement such as “should” and includes exemptions for certain groups which would make little sense if it was truly just a request. Therefore, it is a naked command and falls outside of the scope of Congress’s enumerated powers. 

The individual mandate also does not read like other congressional suspended or delayed tax laws. If every law can be defended as a potential tax or one that Congress may choose to enact in the future, there will be no functional limit on congressional power. 

The Individual Mandate IS Severable: The Petitioners argue that even if the individual mandate is unconstitutional, the proper solution is to hold it unconstitutional but allow the rest of the ACA to remain. There is a strong presumption of severability (Barr v. AAPC) especially because there is no inseverability clause.

It is also clear that Congress does not want the entire ACA invalidated given that efforts to entirely repeal it failed in the Senate. It should not be assumed that Congress violated their constitutional oath by voting to set the individual mandate to zero in order to strike down the entire ACA through a theory of inseverability. 

While the 2010 Congress believed the individual mandate to be essential to the rest of the ACA, they have changed their view based on more recent CBO findings. Congress could not have truly viewed the tax as essential in 2017 because they eliminated it, and congressional members and the President all praised this functional “repeal” of the individual mandate and the new flexibility citizens are afforded as a result.

The Individual Mandate is NOT severable: The Respondents argue that the Obama Administration’s DOJ referred to U.S Code 18091 (the findings that the individual mandate is essential) as a functional inseverability clause and Congress emphasized its essential nature when passing the ACA in 2010. In 2017, Congress could have removed the legislative findings in 18091 but chose not to. Consequently, the individual mandate remains essential and if it is unconstitutional then the entire ACA is invalid.  

Implications 

The Affordable Care Act received a lot of criticism when it was first passed, but there is no doubt that the implications of repealing it over a decade later are much more significant. Since its passage, over twenty million Americans have received health care coverage and thirty-six states have expanded Medicaid, increasing enrollment by sixteen million. But, states that have expanded Medicaid could lose significant federal funds if the ACA is repealed. All of this is likely to lead to millions of Americans losing their coverage. 

Of course, the ACA has its flaws, including higher deductibles and premiums, but regardless of whether the ACA is truly sound policy, its repeal, either by Congress or the Supreme Court, will have notable consequences, especially if there is no replacement plan.

Megan Gerges is from Warren, NJ, studying Political Science and Psychology.

https://www.cagle.com/tag/electoral/page/2/

Chiafalo v. Washington: Placing Faith In Faithless Electors

The Founding Fathers’ establishment of the Electoral College was an apprehensive, controversial compromise. The men sought to create a body of temporary representatives, individually appointed by the states, who would cast ballots in a presidential election for the winner of the popular vote. Though the body’s intended duty was to systematically honor the wishes of the people, the rise of a highly partisan party system has rendered this a flawed project. In a total of five elections throughout history — twice within the last five elections — the winner of the popular vote was not elected to the presidency. Many states have since taken measures to undermine “faithless electors” by enforcing electors to pledge support to the winning popular vote candidate and by sanctioning those electors who defy their pledge. The extent of state power to impose these sanctions is the issue of the Supreme Court case Chiafalo v. Washington. The court unanimously decided in July 2020 that states not only have the power to establish conditions of appointment to which electors must uphold, but also the power to punish the electors if they do not meet these conditions. 

Facts of the Case 

The presidential election of 2016 had the greatest number of “faithless electors” in history. After pledging their support to Hillary Clinton, seven appointed electors cast votes for Colin Powell in an attempt to prevent Donald Trump from obtaining a majority and, in turn, force the decision of the election onto the House of Representatives. Among these electors were the petitioners — Peter Chiafalo, Levi Guerra, and Esther John — who were Washington Democratic Party appointees and were fined $1,000 for breaking their pledge. The petitioners challenged their fines in the Washington Superior and Supreme Court, where their claims were rejected. When the US Court of Appeals for the Tenth Circuit decided a similar case — Baca v. Colorado Dept. of State — in favor of the petitioner, stating that the constitution grants electors the freedom to vote “with discretion,” the US Supreme Court granted writ of certiorari — a request to a lower court to send a case record for review — to resolve the split. 

On July 6, 2020, the Court upheld the decision in Ray v. Blair — the states have the power to make pledge requirements to enforce that an elector supports their party’s nominee — and further established the states’ right to penalize electors who betray this pledge. In the 9-0 decision, Justice Kagan delivered the opinion of the Court, to which Justice Thomas filed a concurring opinion. Kagan stated that because of the “bareboned” nature of the Constitution with regard to the appointment of electors, the states essentially have free will over the appointment process, assuming the constitutionality of their actions. Her argument relies heavily on Article II and the The Twelfth Amendment. Kagan argues that in giving states the power to appoint and to attach conditions to those appointments, Article II grants states the power to impose sanctions. Furthermore, Justice Kagan claims that the Twelfth Amendment solely states that electors must vote by ballot, not “with discretion,” thereby rejecting the decision made in Baca v. Colorado Dept. of State. 

Justice Thomas concurred in this opinion due to a diverging interpretation of the parameters of Article II. Thomas argues that the states’ control terminates when the appointment process is completed, and pledge laws are beyond this point. Thomas grounds his argument in the Tenth Amendment, arguing that because enforcement of pledge law is not an enumerated power, it is within the states’ discretion, “to the extent that the Constitution does not remove or restrict that power.” He maintains that because there is nothing in the Constitution that prevents states from exercising this power, the states are well within their jurisdiction. 

Implications 

The Supreme Court’s decision in Chiafalo v. Washington will undoubtedly have implications for both the states and Congress. Presently, only 15 states have provided some form of sanction to enforce their pledge laws – some impose $1,000 fines, while others remove the faithless electors from their positions. As we near the 2020 election, possibly one of the most contentious and fiercely partisan elections in history, the remaining states must bear the burden of choosing whether to construct an enforcement mechanism for electoral pledges or to pass the duty onto Congress. Though faithless electors have never succeeded in diverting a majority from a presidential candidate, due to the nature of the election and the limited number of states who have enforcement mechanisms in place, the electors have the potential to turn the tides of the election. However, with the Supreme Court’s decision, if more states implement pledge sanctions this situation becomes even less probable and feasible. 

In a plausible reality where all states implement some form of sanction, another factor comes into play: the level of severity of the sanction. On the one hand, if the sanction does not render the elector’s vote void, it may deter, but not prevent, the elector from casting a faithless vote. The elector may subjectively decide whether their faithless vote is worth the sanction. On the other hand, if every state imposes a strict sanction that discards faithless votes, the very purpose of the Electoral College becomes unclear. There is little need for an intermediary body of electors who have no freedom to stray from the popular vote. As such, some have suggested the abolishment of the Electoral College. With less than a month left until the election, the potential electors must decide the role they intend to play while they still have a stake in the game. 

Leah Markbreiter is from Roslyn, NY, studying Public Policy and Decision Science.

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United States v. Robert Boling, Jr. et al – Assessing Federal Action To Address Elder Fraud

Facts of the Case

United States of America v. Robert Boling Jr., et al. details the indictment of five individuals for the perpetration of a multifaceted identity-theft and fraud scheme targeting thousands of United States veterans and service members between July 2014 and July 2019. Frederick Brown–a former U.S. Army civilian medical records administrator–exploited his post by illegally providing Robert Boling, Jr. with personal identification information (PII) belonging to thousands of U.S. military-affiliated individuals, including active service members and their dependents, employees of the Department of Defense and, predominantly, veterans. Boling then co-conspired with Allan Kerr and Jongmin Seok, utilizing the stolen PII data to access and steal from victims’ bank accounts, disability funds, and veteran benefit pay-outs via the Department of Defense benefits portal. Thereafter, Trorice Crawford recruited upward of thirty individuals as “money mules” to launder the stolen funds. Crawford then facilitated the remittance of these funds to his four co-conspirators, based in the U.S. and the Philippines.  

Frederick Brown and Trorice Crawford were arrested in the United States in October 2019.  In the same month, Brown pleaded guilty to his role in the fraud scheme and is currently detained awaiting a sentencing hearing in Las Vegas.  On July 9, 2020, the Office of Public Affairs at the U.S. Department of Justice reported that Chief U.S. District Judge Orlando Garcia has ordered Crawford to pay $103,700 in restitution and serve 46 months in prison for his involvement between May 2017 and July 2019. The remaining three, overseas-based co-defendants, Robert Boling Jr., Allan Kerr and Jongmin Seok, have been arrested in the Philippines and are awaiting extradition to the Western District of Texas. The indictment asserts that these latter three defendants specifically utilized stolen military personnel credentials to “compromise a Department of Defense portal.” Having entered through the portal, Boling, Kerr, and Seok are alleged to have accessed information about veterans’ benefits and stolen millions of dollars from victims’ bank accounts.  Following Crawford’s sentencing, Acting Assistant Attorney General of the Department of Justice’s Civil Division, Ethan P. Davis, expressed the commitment of the Department of Justice to protect U.S. veterans and servicepeople, stating that “the Department of Justice will not tolerate fraud on America’s warfighters and veterans” and reasserting that they are “committed to protecting those who protect us.”

Elder Fraud in Numbers

The indictment of Robert Boling Jr. et al. is one among thousands of fraud cases targeting the vulnerable, elderly population. Data from the Department of Justice’s Elder Justice Initiative (EJI) presents a jarring snapshot of elder abuse statistics nationwide – wherein, in 2017 alone, the National Adult Maltreatment Report System (NAMRS) documented 143,622 victims of physical abuse and financial exploitation in the 60 and over age bracket. This accounts for a mere 26 states which reported data to NAMRS, and it is estimated that just “one in twenty-four cases” is disclosed to authorities. A study by the National Center on Elder Abuse found that “retrieval of personal financial information under false pretenses” was among the most common types of financial exploitation among elderly Americans.  The Federal Trade Commission’s 2018-19 Protecting Older Consumers report illustrates, critically, that money lost to fraud ranged from $400-$506 among younger consumers aged 20-59, while older consumers (60 and above) reported median losses of $600-$1700. Those aged 80 and over reported a 55% increase in money lost to fraud relative to 2017, while those aged 20-59 reported a 2% average increase in money lost to fraud over the same period.  National statistics on elder abuse, on the whole, portray an incredibly grim outlook in terms of the United States’ ability to prevent exploitative criminal activity such as that carried out by Boling, Brown, Kerr, Seok, and Crawford.

Precedent and Federal Action

The recovery of assets stolen through financial exploitation of the elderly is a fast-growing area of civil litigation. Elder fraud is not generally considered a criminal law matter because, in many cases, intent is nearly impossible to prove and to prosecute. Moreover, though orders for restitution are commonplace in the criminal law system, seeking awards of damages is a matter best serviced in the civil justice system. Most elder abuse statutes in the United States provide the definition of “the illegal or improper use of an older person’s money or property.” A handful of states, moreover, provide special provisions for the recovery of stolen assets through civil action – Maine’s Improvident Transfer of Title Act, for example, clearly sets standards for the courts to order relief or undo real estate transfers in cases of financial exploitation.  In terms of precedent, perpetrators tend to spend or hide stolen assets in fraud cases, oftentimes rendering recovery of victims’ losses impossible. A comparable wire fraud and aggravated identity theft case, United States v. Gareth David Long, saw the defendant sentenced to 70 months imprisonment but with no order for restitution to the plaintiffs. Similar verdicts were reached in United States v. Shivang B. Thakur, United States v. Lori Owen, and United States v. Samuel Davalos, Jr. – all of which involved convictions for consumer and identity fraud targeting elderly citizens.

In October 2017, the bipartisan Elder Abuse Prevention and Prosecution Act (EAPPA) was signed into law by President Trump to support the Department of Justice’s enforcement action in civil and criminal cases that disproportionately affect elderly citizens, and provide funding for investigation, prosecution and trauma recovery. Since the Act was introduced, the Department has engaged in hundreds of elderly fraud enforcement actions – including the largest elder fraud case in U.S. history, wherein 260 defendants were charged in a nationwide fraud sweep.  The passage of the Act has, in addition, enabled the Department to conduct hundreds of outreach sessions and training programs across the nation.

Cameron Page is a Sophomore from Christchurch, New Zealand, studying Global China Studies and Political Science.

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Aftermath of the Youth Climate Change Lawsuit

Introduction:

In 2015, 21 youth plaintiffs filed a lawsuit against the United States and several executive branch officers, including former President Obama and President Trump. The plaintiffs of the Juliana v. United States suit, who are all between the ages of 12 and 23, argued that government inaction in regards to climate change violated their “fundamental constitutional rights to freedom from deprivation of life, liberty, and property.” The plaintiffs were able to meet the requirements for standing with proof that they were adversely affected by the climate crisis. For instance, Levi Draheim, a 12-year-old plaintiff, had been injured by repeat evacuations during worsening storms. At the time, the Juliana suit was one of many climate change lawsuits making their way to the US court system. The youth lawsuit stood out because it challenged the federal government, rather than fossil fuel companies themselves.

As climate change remains a pressing issue, the Juliana v. United States verdict was seen as a disappointment for many. In a 2-1 ruling, a three-judge panel in the Ninth Circuit Court of Appeals dismissed the lawsuit. The plaintiffs had argued for a government plan to phase out fossil fuels and reduce greenhouse gas emissions, and had also asked the US district court of Oregon to order the federal government to implement a climate remediation plan that would target scientifically valid standards to stabilize the climate.

Facts of the Case:

On January 17, the court concluded that they lacked the power to enforce climate policy decisions by the government and Congress and concluded that “any plan is only as good as the court’s power to enforce it.” The judges agreed that climate change was a threatening problem, but ultimately ruled that the plaintiffs did not have standing. The panel also concluded that climate policies had to come from the legislative branch. Judge Andrew Hurwitz wrote in his opinion: “Reluctantly, we conclude that such relief is beyond our constitutional power.” The appeals court decision reversed an earlier district court ruling that would have let the case go forward.

The majority of the panel sided with the Trump administration that the issues brought forth in the lawsuit did not belong before the courts. However, in a lengthy dissent, Judge Josephine Staton argued that courts do have the authority to protect the youth in the face of climate change, and criticized current government inaction. Staton wrote: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.”

In response to the ruling, the lead lawyer for the plaintiffs, Julia Olson, said that she would appeal, stating that the case was “far from over.” Olson, representing the group Our Children’s Trust, plans to send the case to the full Ninth Circuit for reconsideration.

Implications:

Although the Juliana suit is the highest-profile case filed by Our Children’s Trust, the group has also filed similar climate change suits on behalf of youths in 9 state courts. The decisions are currently pending, proving that even though the Juliana ruling was a setback, climate activists are still undeterred from using the courts to fight inaction regarding climate change.

The Juliana ruling has implications for the ability of the court system to provide redress for constitutional violations. The court found sufficient injury among the plaintiffs, but differed on the court’s ability to provide a remedy. Olson and Our Children’s Trust plan to ask the Ninth Circuit for full review, which is rarely allowed. However, due to the urgency of the climate crisis, the Juliana plaintiffs may defy the odds and receive further review.

Regardless of the future review decision, climate change has become a prominent issue in the court system. On January 15, four Louisiana Indian American tribes submitted a formal complaint to the United Nations alleging that the US government had violated their rights by failing to take action on climate change. The tribes argued that rising sea levels and coastal erosion were drowning burial sites and threatening their source of food. The tribes held that intervention by the UN was necessary because the federal government had not done enough, with one plaintiff quoting: “If nothing is done, we fear the worst.”

Despite the outcome of the Juliana suit, climate change will continue to remain in court.

 

Dominique Karesh is a sophomore from Asheville, NC studying Public Policy and Statistics.

 

Kansas Attorney General Derek Schmidt

Kansas v. Garcia

Kansas v. Garcia focuses on the arrests and subsequent convictions of three men in separate incidents. The eponymous defendant, Ramiro Garcia, who worked as a line cook in Olathe, Kansas, was stopped in 2012 for a simple speeding violation. Upon closer inspection, the police officer on duty discovered that authorities were already searching for Garcia; by seizing his federal employment document, the Employment Eligibility Verification, known colloquially as his I-9, detectives assessed that Garcia had falsified his social security number and charged him with identity theft. Garcia was initially found guilty in Johnson County, yet the Kansas Supreme Court overturned this ruling after appeal because of the fact that the I-9 is a federal document. In effect, the Kansas Supreme Court negated prosecutors’ ability to present federally mandated statutes as evidence of disobedience of state law. 

 

The Supreme Court will thus answer whether states have the capacity to determine their own immigration policies. In terms of precedent, the Court has generally ruled that Washington’s decisions preempts state law. The government has enforced civic equality through Brown v. Board of Education (1954) and Loving v. Virginia (1967), choice through Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and interstate commerce through Gibbons v. Odgen (1824) and Wickard v. Filburn (1942). While this federalism is traditionally associated with big government and thereby progressivism, certain Supreme Court rulings have also benefited conservatives, as defined by the modern spatial model. Indeed, many decisions have in truth diminished the role of state government for the sake of liberty, especially as concerns free speech in Johnson v. Texas (1989) and firearm possession in District of Columbia v. Heller (2008). To this end, one cannot surmise whether federalism consistently aligns with one party’s views.

 

The most recent case regarding immigration may spell the outcome of this case. Arizona v. United States (2012) reflected a state bill which granted local law enforcement permission to apply federal immigration statutes. Furthermore, this Arizona measure attributed a misdemeanor, worthy of fines and potential forfeiture of business liberties, to anyone who hired or protected illegal immigrants. The Supreme Court, in a 5-3 decision, dictated that, because Congress has the responsibility to specify “a uniform rule of naturalization” across the country per the Constitution, Arizona has no right to determine the legality of its own residents.

 

Nevertheless, states’ rights advocates have three major factors in their favor in Kansas. Firstly, Justice Kennedy, who wrote the majority decision for Arizona, has since retired. Next, Justice Kagan recused herself in 2012 because of her former position as President Obama’s solicitor general and argued directly in front of the Supreme Court on other issues involving federalism. Finally, the two new justices fully embrace anti-federalism, albeit to differing degrees. Justice Gorsuch has defended states from intrusion repeatedly against unelected officials, particularly in the executive branch, and has not refrained from opposing justices generally recognized as conservative. In Sessions v. Dimaya (2018), for instance, which considered ambiguity in the United States Code, Gorsuch was the deciding vote in a 5-4 decision on the basis that Congress must write the explicit laws for the Code to legally be enforced. While Justice Kavanaugh has not spent as much time on the Court and thus does not have clear preferences, he is bound to support a smaller federal government more than Kennedy, who facilitated federalism as much as any conservative justice ostensibly could have, did. 


Assuming Kagan again abstains, the Court will reach a 4-4 verdict, which will not alter the Kansas Supreme Court’s verdict. This outcome reflects Chief Justice Roberts’ hesitancy to overturn precedent, and he himself voted for Arizona in 2012. Even though an alternative result would seemingly favor anti-illegal immigration advocates, both major parties could utilize these newfound state rights’ to their advantage. In more conservative states, clearly, legislatures could make employment for illegal immigrants practically impossible, as they would have free rein to build prohibitive statutes. Nevertheless, California and other havens for illegal mmigrants could more fully accommodate the new residents, especially if President Trump wins a second term and concentrates more bluntly on illegal immigration. These Democrat-controlled states could ease educational access and extend Medicaid, TANF, and SNAP benefits for these families; in an extreme situation, these states would have the legal backing to eschew federal orders to construct new barriers alongside state properties. Additionally, Kansas will illustrate how this Court will rule in other issues regarding federalism, which is helpful when appraising the justices as a contingent.