Brown Undergraduate Law Review — Vol. 3 No. 2 (Fall 2022)

The Brown Undergraduate Law Review is delighted to share our Spring 2022 journal of undergraduate legal scholarship. https://www.brownulr.org/

The Brown Undergraduate Law Review is delighted to share our Spring 2022 journal of undergraduate legal scholarship. https://www.brownulr.org/


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Spring <strong>2022</strong> || <strong>Vol</strong>. 3 || <strong>No</strong>. 2<br />

b r o w n<br />

u n d e r g r a d u a t e<br />

l a w r e v i e w<br />

The <strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong> is <strong>Brown</strong> University?s<br />

student-written and student-run journal of legal scholarship.<br />


https://www.brownulr.org/<br />


BROWN<br />



Spring <strong>2022</strong> || <strong>Vol</strong>ume 3 || Issue 2<br />

Editorial Board and Staff<br />



<strong>No</strong>ah Glickman '23<br />

(Section Head)<br />

Matt Grady '24<br />

Edan Larkin '23<br />

Hannah Ponce '22<br />

Sana Sinha '24<br />


Ari Gabinet<br />

Watson Institute Senior Fellow<br />

Legal Expert in Residence at<br />

<strong>Brown</strong> University<br />


Ilana Duchan '23<br />

Sophia Matthews '22<br />


Chaelin Jung '23<br />


Dani Poloner '24 (Director)<br />

Ruqiya Egal '23<br />

Amber Fehrs '22<br />

Kate Harty '24<br />

Lucy Kaufman '22<br />

Annette Lee '23<br />

Nick Masi '24<br />

Kiara Moon '24<br />

Ellie Morvatz '25<br />



Sonia Kelly-Manning '22<br />

(Section Head)<br />

Abigail Carbajal '23<br />

David Del Terzo '23<br />

Ariela Rosenzweig '24<br />

David Vojtaskovic '24<br />


Rebecca Whang '24<br />

(Director)<br />

Nick Masi '24<br />







Dear Reader,<br />

We are honored to present the Spring <strong>2022</strong> issue of the <strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong> (BULR).<br />

This past 2021-<strong>2022</strong> academic year provided the first opportunity for our entire team to collaborate<br />

together in Providence. Such in-person synergy has helped to fuel our many ongoing initiatives, which<br />

include not only our semesterly flagship journal, but also our Blog, Podcast, and distinguished guest<br />

speaker fora. We are grateful to our innovative staff for their dedication to increasing the accessibility<br />

of legal discourse at <strong>Brown</strong> University through such diverse and engaging enterprises.<br />

The BULR?s Spring <strong>2022</strong> issue is the fruit of our staff?s tremendous labor since January of this year.<br />

Blind review of this semester?s submissions resulted in the curation of perhaps the most diverse array of<br />

articles yet. Papers ranging in focus from micronational sovereignty to the labor rights of exotic<br />

dancers in Rhode Island are but a smattering of the compelling topics featured in this volume. These<br />

articles are not only riveting, but also relevant: daunting domestic and international legal questions<br />

abound. We publish the Spring <strong>2022</strong> journal against the backdrop of the overturning of Roe v. Wade;<br />

prolific gun violence across the United States and the ensuing implications for the right to bear arms;<br />


A Letter from the Editors<br />

flagrant human rights violations perpetrated around the world; and a global call for climate crisis<br />

accountability and mitigation. Our undergraduate authors offer incisive, interdisciplinary contributions<br />

to the legal and policy discourse surrounding today?s most pressing legal issues. The BULR remains a<br />

platform committed to advancing the pursuit of true justice.<br />

The BULR is indebted to mentors and community members who continue to support our organization.<br />

We extend our immense appreciation to BULR faculty advisor Ari Gabinet, Legal Expert in Residence<br />

at <strong>Brown</strong> University and Senior Fellow at the Watson Institute for International and Public Affairs at<br />

<strong>Brown</strong> University. We also thank the Watson Institute for its invaluable partnership and facilitation of<br />

our distinguished guest speaker events. Indeed, during the past semester, the BULR had the honor of<br />

hosting Judge Frank Caprio, Chief Judge of the Municipal Court of Providence and subject of the<br />

renowned television program Caught in Providence, and Danielle Holley-Walker, Dean of the Howard<br />

University School of <strong>Law</strong> and prominent scholar of education law and civil rights. Additionally, we<br />

express our gratitude to Professor Michael Vorenberg of the <strong>Brown</strong> University History Department,<br />

Editor-in-Chief Emeritus Jordan Kei-Rahn '21, and The Princeton <strong>Review</strong> for their ongoing advisory<br />

roles. And last but certainly not least, we celebrate our staff and contributing authors. The value of our<br />

organization is even greater than the sum of its invaluable constituent parts.<br />

With the approach of the <strong>Fall</strong> <strong>2022</strong> semester, the BULR will undergo a changing of the guard. We<br />

congratulate the incoming BULR Executive Board and are pleased to introduce Chaelin Jung ?23 as<br />

the publication?s incoming Editor-in-Chief. It is with great faith in our staff?s extraordinary capabilities<br />

that we pass the torch to the next cohort of BULR leaders. We are deeply humbled by and grateful for<br />

the opportunity to have led this organization over the past year, and it has been a pleasure to work<br />

alongside such a talented group of colleagues and mentors. We are confident that their thoughtfulness,<br />

creativity, and innovation will continue to drive the <strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong>?s pursuit of<br />

engaged legal scholarship.<br />

Sincerely,<br />

Ilana Duchan '23 Sophia Matthews '22<br />

Editors-in-Chief<br />


TABLE OF<br />


Seeking Sovereignty: The Historic Politics of<br />

Micronational Recognition & Independence<br />

Deepak Gupta '22<br />

Rights and Accountability in the Post-9/11 Era:<br />

Habeas Corpus and the Guantanamo Bay Naval Base<br />

Caroline Allen '22.5<br />

Exotic Dancing in Rhode Island and Beyond: An<br />

Analysis of Legal Rights and Protections Under the<br />

First Amendment and the Fair Labor and Standards<br />

Act<br />

Olwyn Kells '23<br />

The Legal Precedents for Police Brutality: The<br />

Enduring Legacy of the Objective Reasonableness<br />

Standard<br />

Eunice Chong '22<br />

The Texas Fetal Heartbeat Statute and Whole<br />

Woman's Health v. Jackson: Unraveling the<br />

Procedural Dilemma and Rethinking a Way Forward<br />

Emma Blake '22<br />

DACA, DAPA, and a Political Battle in Court<br />

Carrie Deng '22<br />

Outsourcing Liability: The Legal Accountability of<br />

the Private Military Industry<br />

Laila Rodenbeck '22<br />

Race as the Right to Self-Defense: The Legal History<br />

Invoked by New York State Rifle & Pistol Association<br />

v. Bruen<br />

Edan Larkin '23<br />

From Our Blog<br />

. . . . . page 7<br />

. . . . . page 19<br />

. . . . . page 32<br />

. . . . . page 45<br />

. . . . .<br />

page 55<br />

. . . . . page 68<br />

. . . . . page 82<br />

. . . . . page 95<br />

page 112<br />






Deepak Gupta '22<br />


Micronations are an often over-looked phenomenon in the realm of international relations. The circumstances<br />

behind their creation vary widely, as well as the seriousness of their leaders in achieving recognizing<br />

sovereignty. Despite this, no micronation has ever been officially recognized by a presently-recognized country<br />

of international body. A historical analysis of micronational relations with recognized governments reveals that<br />

the internal politics of the latter are a major determinant in the sovereignty of the former. If a micronation poses<br />

a threat to a country's internal politics, they exist in non-recognition or face external pressure to dissolve. Many<br />

follow the same path as the United States, for example, and declare independence, establish formal declaration<br />

of sovereignty over a piece of territory, and organize a government. Yet, a thorough review of multiple case<br />

studies reveals that their experiences are not the same. "Sovereignty" is therefore a political concept,<br />

as the fates of unrecognized micronations are determined by the will of the recognized world.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

Introduction<br />

In the middle of July 2019, 113 people from around the<br />

world met at the Marriott Courtyard Hotel in Ontario,<br />

Canada. 1 Attendees included diplomats, emissaries, and<br />

leaders from The Democratic Republic of Benjastan,<br />

Hurliherzistan, and the Republic of West Who. Although<br />

they dressed in regal clothing, wore unique flags, and held<br />

unfamiliar passports, none of the places they were<br />

representing can be found on a map. In fact, most people<br />

around the world have never even heard of these states.<br />

These representatives were all gathered for MicroCon<br />

2019, a biennial convention held by micronations. A<br />

micronation is a political entity that declares itself as<br />

?sovereign? yet remains unrecognized by established<br />

governments and international bodies. 2 As of 2021, there<br />

are over 400 existing micronations across the world. 3 The<br />

characteristics of a micronation can vary widely, with<br />

some claiming wide swaths of land and others<br />

?occupying? only a few square feet.<br />

Micronations are by no means a new phenomenon. They<br />

have cropped up all across the world throughout history,<br />

often for the purpose of social critique. One of the earliest<br />

occurrences in the United States was in 1949. A mining<br />

company from Wisconsin known as the ?Rough and Ready<br />

Company? settled an eponymous frontier town in Nevada<br />

County, California. 4 As their population grew, people<br />

became dissatisfied with increasing taxes and lawlessness.<br />

As a result, they issued an official declaration of secession:<br />

[W]e cease to be reduced to seeing our property and<br />

lives being taken over by those not of us, but those<br />

against us. Therefore, we the people, of the township<br />

of Rough & Ready, deem it necessary and prudential<br />

to withdraw from the Territory of California and from<br />

the United States of America to form, peacefully if we<br />

can, forcibly if we must, the Great Republic of Rough<br />

and Ready. 5<br />

Their citizens rejoined the Union three months later after<br />

nearby saloons refused to serve them, as they were<br />

?foreigners,? leading up to July 4th. Although brief, the<br />

existence of the Great Republic of Rough and Ready is<br />

representative of the experience of many micronations.<br />

They release documents proclaiming their freedom,<br />

independence, or sovereignty. Yet, their declarations<br />

remain unrecognized, and they are sometimes treated as<br />

political threats. They spend the rest of their existence<br />

either illegitimate, unknown, or dissolved due to<br />

unsustainable internal management. The legal history<br />

behind their battles for recognition across the world raises<br />

critical questions regarding the nature of sovereignty.<br />

In this paper, I will argue that historically, the politics of<br />

recognized governments have been the primary<br />

determinant of the micronational quest for sovereignty. I<br />

will review the legal basis underlying the micronational<br />

claim to sovereignty, the historic interactions between<br />

recognized and unrecognized governments via case studies<br />

(with a focus on micronations that critique hegemonic<br />

power), and assess the implications of these case studies<br />

on what it truly means to be ?sovereign.?<br />

Defining Sovereignty: The Montevideo Convention of<br />

1933<br />

In the constitutions of micronations, the term ?sovereign?<br />

appears multiple times. For instance, the Republic of<br />

Talossa, a small micronation spanning a few square feet in<br />

Milwaukee, Wisconsin, declares in their constitutional<br />

1. ?Home,? MicroCon 2019, December 22, 2021, https://www.microcon2019.com/.<br />

2. <strong>No</strong>t Exactly <strong>No</strong>rmal, ?These People Started Their Own Countries, and So Can You,? October 08, 2019, https://www.youtube.com/watch?v=kiHSnFPGqjg.<br />

3. Benjamin Elisha Sawe, ?What is a Micronation?? WorldAtlas, April 25, 2017, https://www.worldatlas.com/articles/what-is-a-micronation.html.<br />

4. Adam Clanton, ?The Men Who Would Be King: Forgotten Challenges to U.S. Sovereignty,? UCLA Pacific Basin <strong>Law</strong> Journal 26, no. 1 (2008): 17,<br />

https://escholarship.org/uc/item/5bz3b5xn.<br />

5. Clanton, 18.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


preamble, ?We Talossans hereby declare that we are a free<br />

people and a free community and, above all, a free nation<br />

dedicated to Talossan ideals. THEREFORE the sovereign<br />

and right government of the Republic of Talossa enacts as<br />

follows. . . .? 6 Even though one can walk through the entire<br />

territory of Talossa in seconds, the founder still adopts<br />

language declaring its freedom.<br />

The legal basis for claiming sovereignty stems from the<br />

treaty signed at the Montevideo Convention on the Rights<br />

and Duties of States. 7 The Montevideo Convention, hosted<br />

in Uruguay in 1933 and signed by the United States and<br />

multiple Latin American countries, established the<br />

definition of a state under international law to codify<br />

existing norms and practices and clarify the difference<br />

between a state and non-state. 8 Although this international<br />

agreement was meant to ensure respect for political<br />

boundaries and non-intervention in foreign affairs, the<br />

Montevideo Convention became critical in allowing for the<br />

continued emergence of micronations. According to the<br />

Encyclopedia of Westarctica (a micronation), the treaty<br />

claims that a political entity only has to declare<br />

sovereignty to achieve it. Therefore, ?most micronations<br />

consider their public declaration of sovereignty to be<br />

evidence enough of their status as a sovereign nation.? 9<br />

Further textual evidence in Articles III & IV of the treaty<br />

confirms this legal basis for the recognition of<br />

micronations:<br />

Article III. The political existence of the state is<br />

independent of recognition by the other states. Even<br />

before recognition the state has the right to defend its<br />

integrity and independence, to provide for its<br />

conservation and prosperity, and consequently to<br />

Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

organize itself as it sees fit, to legislate upon its<br />

interests, administer its services, and to define the<br />

jurisdiction and competence of its courts.<br />

The exercise of these rights has no other limitation<br />

than the exercise of the rights of other states according<br />

to international law. 10<br />

Article IV. States are juridically equal, enjoy the same<br />

rights, and have equal capacity in their exercise. The<br />

rights of each one do not depend upon the power<br />

which it possesses to assure its exercise, but upon the<br />

simple fact of its existence as a person under<br />

international law. 11<br />

Article III of the Convention implies that a micronation<br />

does not need any recognition to consider itself a ?state.?<br />

In addition, Article IV ensures that micronations, despite<br />

their small size, have the same amount of influence as their<br />

recognized counterparts. The Montevideo Convention?s<br />

definitions seemingly provide a strong legal foundation for<br />

leaders of unrecognized nations to achieve recognition.<br />

With recognition, micronations can integrate themselves<br />

into international organizations, like the United Nations,<br />

and establish formal diplomatic relations across the world.<br />

Yet, ensuring compliance with the Convention remains<br />

complicated for two reasons. The first is that micronations<br />

vary in their levels of seriousness. Some people establish<br />

their own country purely for leisure, whereas others do it<br />

more seriously in an attempt to critique the recognized<br />

world. On his micronation?s website, the President of<br />

Molossia notes that this large variation within<br />

micronations affects the legitimacy with which they are<br />

perceived. 12 For the purposes of this paper, I will be<br />

focusing on these two types of micronations (i.e. those<br />

created for leisure and those created for critique) and their<br />

6. The Republic of Talossa, ?Proclamation of Independence,? TalossaWiki, June 1, 2004, http://wiki.talossa.com/images/f/f7/A_Nation_Sundered.pdf.<br />

7. Harry Hobbs and George Williams, ?Micronations: A Lacuna in the <strong>Law</strong>,? International Journal of Constitutional <strong>Law</strong> 19, no. 1 (2021): 73,<br />

https://academic.oup.com/icon/article/19/1/71/6247754.<br />

8. The Editors of Encyclopaedia Britannica, ?Montevideo Convention,? Encyclopædia Britannica, December 22, 2021, https://www.britannica.com/event/Montevideo-Convention.<br />

9. ?Montevideo Convention,? Encyclopedia Westarctica, <strong>No</strong>vember 4, 2019, https://www.westarctica.wiki/index.php?title=Montevideo_Convention.<br />

10. United Nations, Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States, 3802 (December 26, 1933),<br />

https://treaties.un.org/pages/showdetails.aspx?objid=0800000280166aef.<br />

11. Ibid.<br />

12. Kevin Baugh, ?How to Start Your Own Micronation,? Molossia.org, December 22, 2021, http://www.molossia.org/howto.html.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

experiences in seeking sovereignty. Furthermore,<br />

recognizing micronations under the Montevideo<br />

Convention is a rarity because of how the establishment of<br />

these new entities can conflict with the internal politics of<br />

recognized nations. In the following section, I will further<br />

explore how domestic American interests have always<br />

shaped the relationship between the United States and<br />

micronational sovereignty.<br />

The Discovery Doctrine & Politics of Sovereignty:<br />

Swains Island<br />

One of the earliest legal policies regarding statehood and<br />

sovereignty in the United States came from Johnson v.<br />

M?Intosh (1823). In this landmark case, Chief Justice<br />

Marshall found that the United States would not recognize<br />

attempts by Native Americans to transfer their land to<br />

white settlers. 13 The case also established the ?discovery<br />

doctrine,? in which the discovery and subsequent<br />

occupation of a previously ?undiscovered? territory were<br />

sufficient criteria for a legitimate claim to that land - thus<br />

granting sovereignty. The Supreme Court?s ruling in<br />

Johnson became essential in ensuring the expansion of<br />

American imperialism. 14 This same case defined the U.S.<br />

relationship with one of the earliest micronations: Swains<br />

Island.<br />

Swains Island is located 200 miles north of Samoa and<br />

spans just 1.25 square miles. 15 In 1840, Captain W.C.<br />

Swain, a whaler from Massachusetts, believed he was the<br />

first white man to ?discover? the island, giving it its<br />

namesake. At around the same time, an Englishman<br />

arrived in Samoa and claimed that he had been the first<br />

white man to visit Swains Island. Based on his ownership<br />

via ?discovery,? a globally recognized principle linked to<br />

colonialism, the Englishman agreed to sell his title to<br />

Swains Island to an American named Eli Hutchinson<br />

Jennings.<br />

On October 13, 1856, Jennings and his wife landed on<br />

Swains Island, raised an American flag, and began their<br />

new lives. Despite Jennings?American flag, the question<br />

of which country had jurisdiction over their territory<br />

remained unanswered for decades. In 1909, England<br />

collected $85 in taxes from Jennings. He protested the<br />

collection by claiming ?his island belonged to the United<br />

States,? and the British government ?conceded his<br />

American nationality and that Swains was an American<br />

island,? subsequently returning the money. 16 In reality, the<br />

United States Department of State did not officially<br />

recognize Swains Island as a U.S. territory. 17 After the<br />

death of Eli Jennings Jr., his son Alexander attempted to<br />

probate his father?s will, transferring the title of the island<br />

to himself. He went to the nearby High Court of American<br />

Samoa, but he was turned away after the judge said the<br />

American Samoan government did not have jurisdiction<br />

over the estate. 18 In 1924, Jennings reached out to the<br />

United States for help. In a letter from Secretary of State<br />

Charles Evans Hughes to President Calvin Coolidge,<br />

Hughes admits that:<br />

It is not clear whether Swains Island was ever in fact<br />

discovered and occupied with the sanction of the<br />

United States . . . [and that] it is an unsettled question<br />

whether this Government could well maintain a claim<br />

to sovereignty over the island, based on the mere<br />

occupation thereof by a private citizen. 19<br />

13. Clanton, 3.<br />

14. Jedidiah Purdy, ?Property and Empire: The <strong>Law</strong> of Imperialism in Johnson v. M?Intosh,? George Washington <strong>Law</strong> <strong>Review</strong> 75, no. 2 (February<br />

2007), 331, https://scholarship.law.duke.edu/faculty_scholarship/1837/.<br />

15. Clanton, 8.<br />

16. Clanton, 10.<br />

17. Ibid.<br />

18. Ibid., 11.<br />

19. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Still, Hughes recommends to President Coolidge that he<br />

apply the discovery doctrine from Johnson and seize the<br />

territory:<br />

Since 1856 [Swains has] been continuously in the<br />

possession of the Jennings family, who have always<br />

regarded themselves as American citizens. . . . [It]<br />

would seem to place upon this Government the<br />

responsibility either of extending its sovereignty over<br />

Swains Island . . . or of disclaiming the exercise of any<br />

control or jurisdiction over the island and the<br />

inhabitants thereof. 20<br />

The case of Swains Island highlights how sovereignty can<br />

mean extremely little without the influence of a country<br />

with political capital. Although the Jennings family<br />

claimed ownership over their island and asserted that it<br />

was an American territory, the family had no means to<br />

enforce this. If Hughes had not convinced Coolidge to<br />

assert the country?s jurisdiction over Swains Island, then<br />

Alexander Jennings would have been left helpless in his<br />

attempt to probate his father?s will. Swains Island and the<br />

Jennings family are a ?responsibility? of the American<br />

government. Moreover, this particular case underscores<br />

how political motives influence the determination of<br />

sovereignty. Using the fact that one American family had<br />

resided on the island for generations and held ownership<br />

over it via ?discovery,? the government recognized and<br />

claimed it? likely for the sole purpose of territorial<br />

expansion. Swains Island essentially functioned akin to a<br />

micronation, and a recognized government only accepted it<br />

when it benefited their political interests.<br />

Security Versus Sovereignty: Atlantis, Isle of Gold, and<br />

Grand Capri Republic<br />

To understand how internal politics can negatively<br />

influence the United States?perception of sovereignty and<br />

Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

relationship with micronations, I will analyze the cases of<br />

Atlantis, Isle of Gold and the Grand Capri Republic. In<br />

1962, William Anderson ?discovered? a group of partially<br />

submerged reefs 10 miles off the coast of Miami. 21<br />

Intending to develop the territory into a hotel and casino,<br />

he partnered with Atlantis Development Corporation in the<br />

Bahamas to realize his vision. When attempting to notify<br />

the State of Florida of the project, the state government<br />

told them that the reef lay outside the constitutional<br />

boundaries of the State and was therefore outside of its<br />

jurisdiction. They received a similar response from the<br />

federal government. Knowing that no other nation had<br />

staked a claim to the land, Anderson gathered a group of<br />

billionaires in Miami Beach and confirmed his plans to<br />

establish ?Atlantis, Isle of Gold.? 22 At the same time, a<br />

man named Louis Ray intended to achieve a similar feat.<br />

He aimed to develop a different set of reefs, also near<br />

Miami, and declare it his own island nation entitled,<br />

?Grand Capri Republic.? 23 In April 1965, as Ray and<br />

Anderson began developing their respective reefs, political<br />

concerns about the possibility of new American neighbors<br />

near the coast began to grow. As a result, the U.S.<br />

government suddenly brought charges of trespassing and<br />

construction without an Army Corp of Engineers permit<br />

against Ray. 24 Atlantis attempted to intervene in the case in<br />

Ray?s favor on behalf of Anderson. The American<br />

government also sought a permanent injunction<br />

against any further island development. This ultimately<br />

culminated in the case of United States v. Ray<br />

(1965) in the Southern District of Florida.<br />

First, the district court found that the newly discovered<br />

reefs could not constitute an ?island nation.?<br />

20. Ibid.<br />

21. Ibid., 12.<br />

22. Clanton, 13.<br />

23. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

Citing precedent from United States v. California (1947),<br />

the district court determined that an ?island? is defined as a<br />

?naturally formed area of land surrounded by water, which<br />

standardized discipline measures, police presence in<br />

schools increased, along with referrals to juvenile courts. 25<br />

Since the reefs had long been naturally submerged below<br />

water, they failed to meet this criteria. Moreover, the<br />

district court determined that Atlantis, Isle of Gold and the<br />

Grand Capri Republic lay on the ?subsoil and seabed? of<br />

the outer Continental Shelf as defined by the Outer<br />

Continental Shelf Lands Act (1953) and the Geneva<br />

Convention (1949) on the Continental Shelf. 26 The United<br />

States does not own this seabed, yet under the Geneva<br />

Convention, ?the coastal State [nation] exercises over the<br />

continental shelf sovereign rights for the purpose of<br />

exploring it and exploiting its natural resources? and that<br />

?no one may undertake these activities . . . without the<br />

express consent of the Coastal State.? 27 Finally, under 43<br />

U.S.C. § 1332(a) of the Lands Act (1820), Congress<br />

determined that the subsoil and seabed of the outer<br />

Continental Shelf are subject to U.S. jurisdiction. 28<br />

Therefore, the district court determined that the United<br />

States had authority under domestic and international law<br />

to reject the sovereign discovery claims of Ray and<br />

Anderson?s projects.<br />

Atlantis, Isle of Gold, and the Grand Capri Republic faced<br />

drastically different fates compared to Swains Island. Ray<br />

and Anderson?s projects demonstrate how political<br />

concerns of pre-existing nations can hinder the quest for<br />

sovereignty. This is most evident in the last paragraph of<br />

the court?s opinion in United States v. Ray. The court<br />

admits that while the preservation of rights to natural<br />

resources is of concern, national security is another<br />

important consideration:<br />

The issues of this case are of great public interest,<br />

involving not only the preservation of rare natural<br />

resources, but the preservation of our very security as a<br />

nation. If these reefs were available for private<br />

construction totally outside the control of the United<br />

States Government, they could conceivably support<br />

not only artificial islands and unpoliced gambling<br />

casinos, but even an alien missile base, all within a<br />

short distance of the Florida Coast. Congress has seen<br />

fit to claim this area so that it may be used for the<br />

Commonwealth rather than private gain. 29<br />

The court?s mention of the ?preservation of our very<br />

security? reveals how a legitimate claim to sovereignty is<br />

not the only aspect of these new islands that the court<br />

considered. Instead of discussing whether Ray had the<br />

right to his unclaimed territory, the judges focus on the<br />

extreme hypothetical of an ?alien missile base? being built<br />

on the island. United States v. Ray suggests that if a<br />

micronation poses a potential risk to the United States, this<br />

takes precedence over the right of such micronations to<br />

exist. Although the validity of the discovery doctrine was<br />

relevant in this case, the political considerations of<br />

dominant countries triumphed over sovereignty.<br />

The downfall of these two micronations also raises<br />

questions regarding the link between sovereignty and<br />

nationhood. With undiscovered land and plenty of<br />

financial resources, both Ray and Anderson could have<br />

easily continued with the reef development and created<br />

habitable environments. Their respective states would have<br />

looked like part of Florida, yet they would have lacked the<br />

political and social structures characteristic among<br />

recognized countries. In United States v. Ray, Ray is<br />

24. Ibid.<br />

25. United States v. Ray, 294 F. Supp. 532 (S.D. Fla. 1969).<br />

26. Clanton, 15.<br />

27. Ray, 294 F. Supp. at 536.<br />

28. Ibid.<br />

29. Ibid., F. Supp. at 541.<br />

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quoted as asking a crucial question about what defines<br />

nationhood:<br />

I went out there and I sat on that Island and I built<br />

these caissons and a house and I was going to put a<br />

family in the house and I [was] going to make some<br />

semblance of a defense. And don't get me wrong by<br />

saying if I am going to attack the Coast Guard or<br />

Navy, but I was going to have some semblance of a<br />

defense and I was going to build it and claim it . . . and<br />

I was going to own it. <strong>No</strong>w, am I a nation? Me and<br />

four investors? 30<br />

Given the wide variation in the types of micronations that<br />

exist, it is important to consider what may make some<br />

more deserving of recognized sovereignty than others. If<br />

an extremely wealthy patron like Ray or Anderson can<br />

create a country in an unclaimed territory, is there a level<br />

of development that qualifies it to be recognized as a<br />

country? As Ray asks, can a small group truly constitute a<br />

new country? Although the court fails to substantially<br />

answer these types of questions, Atlantis, Isle of Gold, and<br />

the Grand Capri Republic are important historical<br />

examples that interrogate how statehood and sovereignty<br />

should be defined.<br />

Sovereignty via Secession: The Principality of Sealand<br />

Many micronations seeking sovereignty choose to do so as<br />

a form of critique against politically dominant countries.<br />

Individuals, usually dissatisfied with government control<br />

or inaction in certain areas, choose to create their own<br />

country in the hope that they will be able to live new<br />

lifestyles. In actuality, the success of these types of efforts<br />

is largely dependent on external politics.<br />

One well-established case of this sovereignty via secession<br />

is the Principality of Sealand. In the 1960s, the British<br />

Broadcasting Company maintained a legal monopoly over<br />

radio broadcasting. 31 As a result, several pirate radio<br />

stations (i.e., radio stations operating without a legal<br />

license) emerged from outside the United Kingdom?s<br />

territorial waters. In 1967, Roy Bates, the pirate<br />

broadcaster of ?Radio Essex? moved his operations to<br />

Roughs Tower, a naval fort located off the coast of<br />

Suffolk. 32 A few months later, the UK closed the legal<br />

loophole allowing pirate radio stations to operate. As a<br />

result, Bates remained on Roughs Tower and declared<br />

himself the ruler of the Principality of Sealand, which<br />

spanned the entirety of the tower, on September 2, 1967.<br />

The UK government largely ignored Bates?s declaration of<br />

sovereignty until an incident in May 1968, in which his<br />

son fired a pistol in the direction of lighthouse staff<br />

working on a nearby buoy. 33 The government indicted<br />

Bates and his son for violations of the Firearms Act<br />

(1968). Yet, a High Court judge dismissed the case, writing<br />

that ?although the Parliament possessed ?the power to<br />

make it an offense for a British subject to have a firearm<br />

with intent to endanger life in Istanbul or Buenos Aires, or<br />

where have you,? it had not done so in this case; the<br />

Firearms Act was held to ?operate only within the ordinary<br />

territorial limits.?? 34 Bates considered this de facto<br />

recognition of Sealand?s independence. 35 Conversely,<br />

although the UK government remained bothered by<br />

Bates?s actions, it concluded that he was doing no actual<br />

harm. As a result, there were no pressing reasons for<br />

evicting him either through force or legislation. As long as<br />

Bates and his son did not stir up significant trouble, the<br />

government would allow them to remain.<br />

The Principality of Sealand remains an example of how the<br />

response of a recognized country to the emergence of a<br />

micronation is heavily linked to politics. In fact, during<br />

Sealand?s early stages of development, ministers worried<br />

about a possible ?Cuba off the east coast of England.? 36<br />

30. Ibid., F. Supp. at 535.<br />

31. Hobbs & Williams, 82.<br />

32. Ibid.<br />

33. Ibid., 95.<br />

34. Ibid.<br />

35. Ibid.<br />

36. ?About The Principality of Sealand,? Sealand, Principality of Sealand, 2021, https://sealandgov.org/about/.<br />

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Only after the firearm incident did the government decide UK should have ignored its political considerations,<br />

that Sealand could exist, albeit with its sovereignty recognized Sealand?s right to secede, and allowed Sealand<br />

unrecognized.<br />

to exist peacefully. After all, if the Founding Fathers can<br />

declare independence and build a government, why can<br />

In addition, Sealand?s emergence through rebellion<br />

Roy Bates not?<br />

redefines their justification for sovereignty. Whereas<br />

Atlantis and Grand Capri Republic sought to achieve Fighting to be Heard: Principality of Hutt River &<br />

recognition by meeting the basic development criteria for Grand Duchy of Westarctica<br />

statehood, Sealand?s claim stems from the right to secede.<br />

Although the previous historical case studies mention<br />

Sealand?s website insists that it ?was founded on the<br />

micronations with embattled histories involving<br />

principle that any group of people dissatisfied with the<br />

recognized countries, the reality is that most countries take<br />

oppressive laws and restrictions of existing nation-states<br />

little action against micronations. This can become<br />

may declare independence in any place not claimed to be<br />

particularly frustrating for the leaders of micronations who<br />

under the jurisdiction of another sovereign entity.? 37 Like<br />

want to be taken seriously.<br />

many recognized countries, Sealand?s desire for<br />

independence began from its founders?dissatisfaction with<br />

One prominent example of this is the Principality of Hutt<br />

their current system of governance. Admittedly, Sealand is<br />

River in Australia, which was established in 1970. In the<br />

not entirely comparable to other places that have seceded<br />

1960s, farmer Leonard Casley purchased a property at Hutt<br />

and become nations, like the United States and South<br />

River intending to build a wheat farm. 39 He planned to<br />

Sudan, because it lacks the same complex social and<br />

harvest around 6000 acres of wheat. However, in 1969, the<br />

political systems these countries possess. Yet, its motive<br />

Western Australian government became concerned with<br />

for declaring independence is also based on a claim of<br />

oversupply and price reductions in wheat and subsequently<br />

oppression.<br />

established a quota. As a result, Casley could only sell 100<br />

acres. Frustrated, Casley issued a notice of secession to the<br />

In a 1976 interview, Ed Welles, the leader of the<br />

Australian government and officially declared a new state,<br />

micronation Oceanus, highlights this overlap between the<br />

the Principality of Hutt River, in 1972. 40<br />

recognized and unrecognized world: ?Look, how does any<br />

Similar to Sealand, the Principality of Hutt River?s desire<br />

government start out? Somebody says, ?I?m a baron, pay<br />

for sovereignty came from dissatisfaction with a<br />

me taxes,?and he?s in business. The U.S.A. said, ?We are,?<br />

recognized government. However, Casley went to greater<br />

and the country was born. In 1970 eight people said, ?We<br />

lengths to invoke the attention of his micronation?s nearby<br />

are,? and there was Oceanus.? 38 Just as Ray questioned<br />

country. In 1977, after receiving numerous<br />

whether wealth justified sovereignty, Welles expresses his<br />

communications from the Australian Taxation Office<br />

belief that sovereignty is a simple process in which what<br />

insisting that he pay his taxes, self-declared Prince<br />

matters most is a concentrated desire for independence<br />

Leonard issued a declaration of war against Australia. 41<br />

among a group of people in a territory. By this logic, the<br />

Two days later, he declared that the war was over and<br />

37. William Yardley, ?Roy Bates, Bigger-Than-Life Founder of a Micronation, Dies at 91,? New York Times, October 13, 2012, https://www.nytimes.com/2012/10/14/<br />

world/europe/roy-bates-founder-of-sealand-dies-at-91.html?searchResultPosition=1.<br />

38. Roy Bongartz, ?Nations Off the Beaten Track,? New York Times, March 28, 1976, https://www.nytimes.com/1976/03/28/arc39.<br />

39. Hobbs & Williams, 84.<br />

40. Ibid.<br />

41. Ibid.<br />

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stated that he welcomed diplomatic relations with<br />

Australia and the supervision of the United Nations over<br />

their interactions:<br />

It is my official duty to advise you that the state of war<br />

between our countries has now ceased and our<br />

government will accept diplomatic relations with your<br />

Government in order to endeavor to achieve the<br />

desired mutual cooperation as is befitting sovereign<br />

countries international relations which follows the now<br />

present situation from the laws of war wherein even<br />

after a situation of one day of declared war it follows<br />

upon cessation absolute sovereignty to the respective<br />

countries. Please have your governments obey now the<br />

laws of war or jointly call for the United Nations to<br />

supervise all relationships between our respective<br />

countries. 42<br />

To achieve recognition of the Principality of Hutt River?s<br />

sovereignty, Casley invoked international norms. By<br />

declaring and quickly ending a non-aggressive war only<br />

lasting a few days, he intended to force Australia to follow<br />

diplomatic rules and establish relationships with his<br />

micronation. Casley further resolved this conflict by<br />

paying fees to the Australian government afterwards.<br />

However, in official documents, he characterized this as<br />

?an annual gift, a goodwill gesture to the local community,<br />

international courtesy, or a donation.? 43 Although the<br />

Australian government paid little attention to Casley?s<br />

declaration, it demonstrates the drastic lengths that<br />

micronations have been willing to go to for recognition.<br />

Declaring war in order to receive some acknowledgment<br />

emphasizes the micronational attempt to triumph over the<br />

bureaucracy behind the quest for sovereignty.<br />

The founding of the Principality of Hutt River is made<br />

more perplexing given the Australian government?s<br />

internal admission, written in a declassified cable telegram,<br />

that Casley had not ?contravened any Australian law.? 44 In<br />

another declassified document, labeled Austeo Secret, the<br />

Australian Department of Territories writes to the Prime<br />

Minister admitting that Prince Leonard is exempt from<br />

Australian tax law and the micronation?s passports are<br />

valid. 45 It also notes that the Prime Minister should ?at all<br />

costs contain this situation.? 46 Unlike many other<br />

micronations, the Principality of Hutt River holds these<br />

documents as explicit evidence regarding the legality of<br />

their claims of sovereignty. However, this is entirely<br />

subverted by the government?s perception of Casley as a<br />

threat. Leonard Casley did not break any laws, yet<br />

Australia?s political considerations took precedence over<br />

his Principality?s right to be independent.<br />

The struggle for acknowledgement is also present with<br />

Westarctica, another micronation established as a social<br />

critique. In 2001, Travis McHenry was reading about<br />

Antarctica?s political status in a CIA World Factbook when<br />

he read that ?no formal claims have been made in the<br />

sector between 90 degrees west and 150 degrees west.? 47<br />

McHenry thought that since no one had staked claim to the<br />

swath of land in West Antarctica, he had a right to do so.<br />

In a letter to the U.S. Department of State?s Office of<br />

Oceans and Polar Affairs, McHenry writes, ?The purpose<br />

of this acquisition is to secure the territory for research and<br />

development and future colonization. Also, to protect it<br />

from those parties that would exploit the territory with<br />

42. Leonard Casley, ?Telegram to the Commonwealth of Australia,? Telegram to the Commonwealth of Australia §, December 22, 2021, http://www.principalityhutt-river.org/Principality%20Downloads/Historic%20Documents/HRP%20Vs%20Australia%20State%20of%20War%20documents.pdf.<br />

43. Hobbs & Williams, 95.<br />

44. ?Outward Cablegram,? Outward Cablegram § (1976), http://www.principality-hutt-river.org/Principality%20Downloads/Historic%20Documents/Facts%20on%<br />

20Secession/Aust%20Govt%20cablegram%2027%20May%201976.pdf.<br />

45. ?Austeo Secret,? Austeo Secret § (1976), http://www.principality-hutt-river.org/Principality%20Downloads/Historic%20Documents/AUSTEO%20SECRET%<br />

20Document.pdf.<br />

46. Ibid.<br />

47. ?The Story of Westarctica,? Westarctica, December 22, 2021, https://www.westarctica.info/our-story.<br />

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Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

misdeeds. The intentions beyond that are my own.? 48<br />

After initially losing interest in the project, in 2004,<br />

McHenry formalized the establishment of a new country:<br />

The Grand Duchy of Westarctica. After years of rule,<br />

however, McHenry realized that his advocacy efforts could<br />

be made much more effective if Western Antarctica<br />

decided to become a nonprofit corporation. As a result, in<br />

2014, McHenry filed with the State of California to make<br />

Westarctica Incorporated a legally recognized nonprofit. In<br />

fact, after making this move, Westarctica was granted<br />

non-consultative status as a non-governmental<br />

organization by the UN Department of Economic and<br />

Social Affairs in 2015. 49 Westartica?s website still firmly<br />

states that it seeks to ?engage technology and people in<br />

service of the environment while pursuing sovereignty for<br />

Western Antarctica.? 50<br />

Once again, the notion of sovereignty emerges in the<br />

context of a micronation seeking international recognition<br />

from pre-existing states and political bodies. Although it<br />

currently exists as a nonprofit corporation, Westarctica still<br />

maintains a diplomatic team designed for building global<br />

relationships and achieving recognition. Most recently,<br />

Westarctica?s Facebook proudly posted a letter they had<br />

received from the King of Cambodia, in which he thanked<br />

the country for sending good wishes on his birthday. 51<br />

Although this seemed like a simple interaction, the<br />

Westarctican government recognized it as much more,<br />

writing, ?Although this is not the first letter Westarctica's<br />

government has received from a reigning monarch, it is the<br />

first time an internationally recognized Head of State has<br />

specifically mentioned Westarctica, the Grand Duke, and<br />

our Foreign Minister in written correspondence.? 52 The<br />

interaction was also added to the Encyclopedia Westarctica<br />

as a notable diplomatic interaction. 53 Westarctica has<br />

clearly made any and all attempts to seek official<br />

acknowledgment from the recognized world. Similar to the<br />

Principality of Hutt River, it views diplomatic relations as<br />

essential for sovereignty. For Westarctica especially,<br />

recognized sovereignty is intrinsic to its mission. The quest<br />

to protect Western Antarctica from climate change and<br />

preserve the environment requires large-scale<br />

coordination and international collaboration. Without<br />

recognition from others, Westarctica?s sovereignty is<br />

limited to a largely unknown digital presence.<br />

Micronations vs. Micro-States: The Republic of<br />

Minerva<br />

I previously iterated how the political interests of a<br />

recognized nation influence its assessment of a<br />

micronation?s sovereignty. For this final case study, I will<br />

similarly review the founding of the Republic of Minerva<br />

and how the nearby country of Tonga led to its demise.<br />

However, this case is unique in that the presence of this<br />

micronation posed a genuine political threat.<br />

In the 1970s, wealthy real estate mogul Michael Oliver<br />

began developing two submerged atolls (i.e. a ring-shaped<br />

reef/coral) in the Pacific Ocean. He aimed to create the<br />

Republic of Minerva, a new state that would be free of<br />

government interference, taxation, and social welfare. 54 On<br />

January 19, 1972, Oliver issued an official Declaration of<br />

Sovereignty to neighboring nations. Yet, the Prime<br />

Minister of Tonga, Prince Tuiplehake, expressed concern<br />

over the Republic of Minerva?s inception. Tonga relied on<br />

the same reef area for food and resources, and Oliver?s<br />

activities in the South Pacific could disrupt Tonga?s way of<br />

life while creating pollution. 55 In Tuiplehake?s words,<br />

48. Ibid.<br />

49. Ibid.<br />

50. Ibid.<br />

51. Government of Westarctica (Westarctica), ?Letter From King Of Cambodia,? Facebook (Post), September 14, 2020, https://www.facebook.com/Westarctica/photos/a.610528955746915/21<br />

52937611506034/.<br />

52. Ibid.<br />

53. ?Foreign Relations of Westarctica,? Encyclopedia Westarctica, March 11, <strong>2022</strong>, https://www.westarctica.wiki/index.php?title=Foreign_relations_of_Westarctica.<br />

54. Lili Song, ?The Curious History of the Minerva Reefs: Tracing the Origin of Tongan and Fijian Claims Over the Minerva Reefs,? The Journal of Pacific History 54, no. 3 (2019): 421,<br />

https://doi.org/10.1080/00223344.2019.1573664.<br />

55. Samuel Pyeatt Menefee, ??Republics of the Reefs:?Nation-Building on the Continental Shelf and in the World?s Oceans,? California Western International <strong>Law</strong> Journal 25, no. 1 (1994):<br />

97, https://scholarlycommons.law.cwsl.edu/cgi/viewcontent.cgi?article=1341&context=cwilj.<br />

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which are largely reminiscent of England?s comparison of<br />

Sealand to Cuba, ?We can't have people setting up empires<br />

on our doorstep.? 56<br />

In response to Minerva?s Declaration of Sovereignty, the<br />

Kingdom of Tonga asserted that Tonga had claimed the<br />

land long before Oliver did. First, Prince Tuiplehake<br />

contended that Minerva was unofficially claimed for Tonga<br />

on <strong>No</strong>vember 24, 1966, when a mariner who visited the<br />

spot left a Tongan flag attached to a buoy. 57<br />

His<br />

government took additional steps to assert its sovereignty<br />

over the land by erecting Tongan statues while tearing<br />

down the Minervan flag whenever officials saw it. On June<br />

15, 1972, Tuiplehake announced his intention to exercise<br />

territorial rights over the reefs that Minerva had previously<br />

claimed:<br />

WHEREAS the Reefs known as <strong>No</strong>rth Minerva Reef<br />

and South Minerva Reef have long served as fishing<br />

grounds for the Tongan people and have long been<br />

regarded as belonging to the Kingdom of Tonga has<br />

now created on these Reefs islands known as Teleki<br />

Tokelau and Teleki Tonga; AND WHEREAS it is<br />

expedient that we should now confirm the rights of the<br />

Kingdom of Tonga to these islands; THEREFORE we<br />

do hereby AFFIRM and PROCLAIM that the islands,<br />

rocks, reefs, foreshores and waters lying within a<br />

radius of twelve miles [19.31 km] thereof are part of<br />

our Kingdom of Tonga. 58<br />

In September 1972, a group of countries in the Pacific<br />

Ocean issued a press communiqué of support:<br />

[m]embers of the Forum recognised Tonga?s historical<br />

association with the Minerva Reefs, welcomed the<br />

Tongan Government?s continuing interest in the area<br />

and agreed that there could be no question of<br />

Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

recognising other claims, and specifically that of the<br />

Ocean Life Research Foundation, to sovereignty over<br />

the reefs. 59<br />

The government also informed the leadership of Minerva<br />

that ?any attempt by any of our group to land on the reefs<br />

would result in . . . [removal] by force . . . and . . . [a] trial<br />

for trespassing on Tongan territory. . . . [To maintain its<br />

claims to the reefs] . . . Tonga was prepared to go . . . ?[t]o<br />

any extent short of war.?? 60 When a small group of Tongan<br />

soldiers arrived on the island in 1972, development efforts<br />

halted and the Kingdom of Tonga officially absorbed the<br />

territory. 61<br />

Once again, sovereignty in the case of the Republic of<br />

Minerva heavily relied on the micronation?s interactions<br />

with other nations. Both Minerva and Sealand conflicted<br />

with nearby countries. However, Sealand continued to<br />

exist because the UK government did not believe that the<br />

sovereignty claimed by Bates would pose a legitimate<br />

threat to their country.<br />

Conversely, the threats and<br />

competing claims made by the Kingdom of Tonga, as well<br />

as support from other Pacific Nations, facilitated the<br />

dissolution of the Republic of Minerva. The Republic of<br />

Minerva would have posed a much greater threat to Tonga<br />

than Sealand did to the UK, as Tonga is a small country<br />

that is extremely reliant on natural resources. Granting the<br />

Republic of Minerva recognized sovereignty would have<br />

likely threatened Tonga?s way of life. Just as the district<br />

court did in United States v. Ray, the Kingdom of Tonga<br />

considered the ?preservation of [their] very security? over<br />

sovereignty. It is critical to consider how sovereignty<br />

should be weighed against the welfare of existing<br />

56. Menefee, 19.<br />

57. Menefee, 99.<br />

58. Song, 424.<br />

59. Ibid., 427.<br />

60. Menefee, 101.<br />

61. Ibid.<br />

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Seeking Sovereignty: The Historic Politics of Micronational Recognition and Independence<br />

countries, though the case of Ray concerned continued<br />

hegemony rather than climate and welfare protections.<br />

Because Tonga would have faced fundamental harm due to<br />

a micronation, the Kingdom?s leadership and its allies<br />

justified their competing claim of jurisdiction.<br />

Furthermore, the Republic of Minerva?s construction also<br />

raised concerns among established nations regarding the<br />

precedent it would set. A 1972 Newsweek article states:<br />

[B]oth sides have stiffened. The Minervan<br />

entrepreneurs insist that despite the King?s claim that<br />

the reefs are vital to Tonga-Australian shipping, they<br />

have been ignored for centuries. The developers say<br />

they have already plunged upwards of $200,000 into<br />

the project, and last week the Minervans were in New<br />

Zealand reportedly fitting out a ship for yet another<br />

trip to the reefs. If no solution can be found, the hassle<br />

may come before the United Nations. That could cause<br />

some unique problems-for there are few precedents<br />

covering the creation of a nation out of nothing.<br />

?Heaven forbid for this kind of thing to happen,? says<br />

one British diplomat in the Pacific. ?We?ll have every<br />

crackpot with an ounce of imagination claiming<br />

sovereignty over every last scrap of unclaimed land.<br />

The next thing you know, they'll be demanding loans<br />

from the World Bank.? 62<br />

The diplomat raises the concern that with the Republic of<br />

Minerva, civilians would begin claiming uninhabited<br />

territories across the world. While this may not always be<br />

detrimental, as shown in the case of Sealand, it can<br />

certainly pose a threat to smaller countries. The diplomat?s<br />

quote also highlights his understanding of sovereignty as<br />

something much more complex than a simple declaration<br />

of independence or freedom. By saying that not ?every<br />

crackpot with an ounce of imagination? can claim<br />

sovereignty, he suggests that even if an unrecognized<br />

micronation meets technical criteria for statehood, there<br />

are other considerations required for sovereignty.<br />

Conclusion<br />

Altogether, a legal and historical analysis of micronations<br />

reveals how the sovereignty of any new political body is<br />

dependent on the political interests of recognized<br />

countries. The principles for establishing sovereignty and<br />

subsequent legitimacy have always been defined and<br />

determined by pre-existing nations. The internal politics<br />

and interests of recognized governments have always taken<br />

precedence in the micronational quest for sovereignty.<br />

Even if leaders of these entities follow the necessary rules<br />

for state-building, countries will only lend them attention if<br />

they pose a threat. Otherwise, their sovereignty will remain<br />

unrecognized. The plight of micronations across the world<br />

raises multiple questions regarding what it means for a<br />

group of individuals to claim itself as ?sovereign.? While<br />

the precedent has been for countries to prioritize domestic<br />

security over the sovereignty of another state, this can<br />

become problematic when analyzing micronations seeking<br />

to secede from a country in protest or rebellion of said<br />

country?s methods of governance. Many micronations may<br />

lack the social and political systems required to build an<br />

official country; however, in principle, the essence of their<br />

claims to independence is no different from that of plenty<br />

of countries in the recognized world. Their troubled<br />

histories are indicative of how international standards for<br />

declaring independence and sovereignty must be further<br />

concretely identified. Otherwise, they will remain unheard<br />

and unacknowledged. Micronations may be obscure, but<br />

their struggles for sovereignty demonstrate that declaring<br />

freedom is not as ?free? as one might think.<br />

62. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />



POST-9/11 ERA:<br />



Caroline Allen '22.5<br />


As part of the national response to the September 11, 2001 attacks, the Bush administration created a detainee<br />

program to incarcerate suspected foreign terrorists in facilities outside of the United States. The detainee<br />

program was built beyond the jurisdiction of U.S. federal courts and the bounds of international humanitarian<br />

law; the men held in detention were denied due process and the protections afforded by the Geneva<br />

Conventions. Filing for habeas corpus in U.S. domestic courts was the only way for detainees?cases to be<br />

heard and their only path out of incarceration. A number of habeas petitions from detainees held in the<br />

Guantanamo Bay Naval Base reached the Supreme Court in the ensuing years. This litigation succeeded in<br />

securing non-American detainees the right to file for habeas corpus and served as a judicial check on executive<br />

authority over national security matters, cementing the importance of habeas corpus in the U.S. system of<br />

checks and balances.<br />

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Rights and Accountability in the Post-9/11 Era: Habeas Corpus and the Guantanamo Bay Naval Base<br />

Introduction<br />

The post-9/11 detainee program was built in a legal black<br />

hole. The Bush administration constructed the program<br />

outside of the purview of the Geneva Conventions and<br />

for habeas corpus allowed the judiciary to engage on the<br />

issue of the national security detention program. The<br />

litigation that resulted? culminating with the landmark<br />

case Boumediene v. Bush (2008)? instituted some measure<br />

beyond the jurisdiction of domestic courts. The<br />

of legal recourse and rule of law in the legal black hole of<br />

approximately 640 men held in detention at the<br />

Guantanamo Bay Naval Base in the 2010s were denied<br />

knowledge of the charges brought against them, access to<br />

any legal review of their cases, the ability to present their<br />

case, access to counsel, and the disclosure of evidence. 1<br />

They were held contrary to the provisions stipulated in the<br />

Geneva Convention and without due process. Their<br />

detention seemed interminable, with no chance to review<br />

their cases and no sense of the end of the conflict.<br />

In the period of national crisis following the events of<br />

September 11, 2001, the Bush administration pushed to<br />

expand the scope of executive power. The Authorization<br />

for Use of Military Force (AUMF), passed by Congress in<br />

2001, accomplished this; it legally empowered the<br />

executive branch to take all necessary measures to prevent<br />

further terrorist attacks and hold those responsible for 9/11<br />

to account. 2 Because of the AUMF and the national sense<br />

of crisis, the Bush administration faced little inter-branch<br />

oversight or accountability for actions that it took in the<br />

name of national security.<br />

Guantanamo.<br />

The extension of constitutional rights to Guantanamo<br />

detainees had broad legal, political, and societal<br />

implications. First and foremost, it affected individual<br />

prisoners?lives: it gave them channels to challenge their<br />

detention and return home after years of interminable,<br />

abusive, and often wrongful incarceration. The ensuing<br />

litigation reaffirmed the expansion of limited constitutional<br />

rights to non-citizens and established a precedent for<br />

judicial review of executive national security and military<br />

actions. Politically, it challenged the Bush administration?s<br />

War on Terror policies. The cases reflected and reinforced<br />

a growing public discontent with government overstep in<br />

the post-9/11 era. This trend was pushed by the highly<br />

unpopular Iraq War, unfolding while the Supreme Court<br />

examined the administration?s detainee policy. The<br />

patriotic ?rally around the flag? sentiment that prevailed in<br />

the years immediately following 9/11 devolved into anger<br />

with and mistrust of War on Terror policies by the time that<br />

the final case, Boumediene v. Bush, was decided. The<br />

Supreme Court decisions reflected that changing public<br />

The role of the judicial branch in foreign policy and<br />

national security matters has been limited historically. 3<br />

Significantly, however, prisoners?ability to file for habeas<br />

corpus is a long-respected right administered by the<br />

sentiment. By checking the executive branch, the Court<br />

reinforced the public sense of justice by affirming that the<br />

executive national security apparatus needed to face<br />

accountability.<br />

judiciary as a check against the executive and legislative<br />

branches. ?The great writ? is viewed as an essential tool in<br />

This paper will examine the development of domestic legal<br />

protecting individual liberty from the arbitrary power of<br />

habeas corpus protections for detainees held in<br />

government, as well as an important balancing mechanism<br />

between the branches. 4 Guantanamo prisoners? petitions<br />

Guantanamo. First, it will introduce essential background<br />

information regarding the law on prisoners of war and<br />

1. Guantanamo Litigation ? History,? <strong>Law</strong>fare, <strong>No</strong>vember 27, 2021, https://www.lawfareblog.com/guantanamo-litigation-history.<br />

2. Ibid.<br />

3. Boumediene v. Bush, 553 U.S. 723 (2008).<br />

4. Ibid, 31.<br />

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Rights and Accountability in the Post-9/11 Era: Habeas Corpus and the Guantanamo Bay Naval Base<br />

habeas corpus. Second, it will outline the development and . . . A prisoner of war is no convict; his imprisonment is a<br />

legal structure of the post-9/11 detainee program. Third, it simple war measure.? 5<br />

will examine the string of Supreme Court cases that<br />

Any enemy combatant detained by the opposing side is<br />

developed a constitutional guarantee that detainees in<br />

considered a prisoner of war. The Third Geneva<br />

Guantanamo could file for writs of habeas corpus in<br />

Convention confers certain rights and protections to all<br />

domestic federal courts.<br />

prisoners of war. These include protections against torture<br />

Legal Concepts<br />

and inhumane treatment, reprisal actions, as well as<br />

guaranteed rights to food, medical attention, hygiene, and<br />

The political culture of the United States post-9/11<br />

more. The convention allows prisoners of war to be held<br />

encouraged drastic measures to protect self-defined<br />

for the duration of a conflict and requires their release and<br />

national security interests. In the imagined state of<br />

repatriation after the conflict ends.<br />

emergency, the U.S. government was prepared to suspend<br />

6<br />

the legal rights and protections of both U.S. citizens and The United States has ratified the Geneva Conventions and<br />

foreign nationals to accomplish its national security goals. they are considered the law of the land. 7<br />

The AUMF provided the Bush administration with the<br />

Habeas corpus and due process<br />

broad means to do so.<br />

In U.S. law, due process and habeas corpus cover<br />

The following section will lay the legal framework for the<br />

different, complementary areas and have a symbiotic<br />

Supreme Court cases brought against the U.S. detainee<br />

relationship. Due process mostly applies to citizens whose<br />

program. The cases were predicated on inconsistencies<br />

freedom or private property might be confiscated by the<br />

between the U.S. detainee program and the Geneva<br />

power of the judicial branch. Those detained by the<br />

Convention in international law and the right to habeas<br />

judicial branch can apply for habeas corpus if, for<br />

corpus and due process in domestic constitutional and<br />

example, new evidence comes to light on their case after<br />

statutory law.<br />

they were convicted. However, for those detained by the<br />

Prisoners of War<br />

executive or legislative branches, habeas corpus has<br />

become a method of providing a review where due process<br />

There is a long-recognized right for countries at war to<br />

may not apply. Individuals detained by the executive<br />

hold captured enemy combatants as prisoners of war.<br />

branch include undocumented immigrants or those held in<br />

Holding prisoners of war is not meant to be retributive, but<br />

the name of national security. These detainees are outside<br />

practical: by detaining enemy combatants, a country<br />

of the judicial system but can be brought into it through<br />

prevents them from returning to the battlefield and taking<br />

filing a writ of habeas corpus. Two evolving questions in<br />

up arms for the opposing side. International law and U.S.<br />

the Court?s handling of habeas corpus and due process<br />

domestic law have long agreed that ?captivity is neither a<br />

include: (1) whether and where either apply to<br />

punishment nor an act of vengeance . . . merely a<br />

non-citizens; and (2) whether the government authority by<br />

temporary detention which is devoid of all penal character.<br />

which a person is detained and the context in which that<br />

5. In re Territo, 156 F. 2d 142, 145 (CA9 1946).<br />

6. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.32_GC-III-EN.pdf.<br />

7. ?Geneva Conventions and their Additional Protocols,? Legal Information Institute, April 12, <strong>2022</strong>, https://www.law.cornell.edu/wex/geneva_conventions_and_their_<br />

additional_protocols.<br />

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Rights and Accountability in the Post-9/11 Era: Habeas Corpus and the Guantanamo Bay Naval Base<br />

person has been detained changes the due process or<br />

habeas corpus rights available to them.<br />

Habeas corpus enables someone detained by the state to<br />

test the legal validity of their detention. Prisoners can file a<br />

writ of habeas corpus, bringing them before a federal court<br />

which then determines the legality of their detention.<br />

Habeas corpus is most regularly invoked post-conviction<br />

when a detainee is already incarcerated. It can serve two<br />

purposes for these prisoners: reviewing whether a<br />

detention is valid, partly by examining the legal and<br />

factual questions of the case, and confirming whether the<br />

legal procedures which resulted in the petitioner?s<br />

incarceration complied with due process. 8 It is focused on<br />

the substantive, particularized issues of a person?s<br />

detention.<br />

The right to seek habeas corpus was first stated in the<br />

Magna Carta in 1215 as a way to limit the power of the<br />

king to arbitrarily arrest and execute citizens. 9 The framers<br />

of the Constitution acknowledged habeas corpus as an<br />

essential protection in a free and just nation, adopting the<br />

right from British common law for the new U.S.<br />

Constitution. Indeed, in Federalist Paper Number 84,<br />

Alexander Hamilton writes that ?the writ of habeas<br />

corpus, the prohibition of ex post facto laws . . . are<br />

perhaps greater securities to liberty and republicanism than<br />

any [the Constitution] contains.? 10<br />

Habeas corpus is protected through the Suspension Clause<br />

(Article I, Section 9, Clause 2) which limits the suspension<br />

of habeas corpus to extraordinary circumstances, thereby<br />

guaranteeing the right at all other times. It reads that ?the<br />

Privileges of the Writ of Habeas Corpus shall not be<br />

suspended unless in Cases of Rebellion or Invasion the<br />

public Safety may require it.? 11<br />

Federal statutes outline two requirements for filing a writ<br />

of habeas corpus: (1) the petitioner must be detained at the<br />

time that they file a writ; and (2) the petitioner has<br />

exhausted all other avenues for recourse through the state,<br />

including appeal. 12 Writs of habeas do not deal with the<br />

factual or legal basis of the petitioner?s case but, rather,<br />

?the power and authority of the governmental authority to<br />

detain the person.? 13<br />

Contrarily, due process assures people under the<br />

jurisdiction of the United States the right to undergo a<br />

standardized, fair legal procedure before they have their<br />

?life, liberty or property? seized by the state. Due process<br />

has a procedural focus, in contrast to habeas?s substantive<br />

focus. Also in contrast to habeas corpus, due process is<br />

explicitly, affirmatively, and repeatedly outlined in the<br />

Constitution. The requirement that no person shall be<br />

?deprived of life, liberty, or property without due process<br />

of law? is the only phrase repeated twice in the<br />

Constitution: once in the Fifth Amendment, and again in<br />

the Fourteenth Amendment. 14 Similar to habeas corpus,<br />

due process was drawn from the Magna Carta, in which it<br />

was outlined with the goal of regularizing the process of<br />

law and holding all accountable to the same standards. 15<br />

Today, due process provides similar protections by<br />

promising that the U.S. government will follow certain<br />

legal procedures? defined by the Supreme Court in<br />

Mullane v. Central Hanover Bank (1950) as, at a<br />

minimum, (1) notice of the reason for state action; (2) the<br />

8. Brandon L. Garrett, ?Habeas Corpus and Due Process,? Cornell <strong>Law</strong> <strong>Review</strong> 98, no. 1 (2012), https://scholarship.law.duke.edu/faculty_scholarship/3856/.<br />

9. Jonathan Kim, ?Habeas Corpus,? Legal Information Institute, Cornell <strong>Law</strong> School, June 2017, https://www.law.cornell.edu/wex/habeas_corpus.<br />

10. ?What you should know about habeas corpus,? ACLU, <strong>No</strong>vember 2021, https://www.aclu.org/other/what-you-should-know-about-habeas-corpus.<br />

11. Jonathan Kim, ?Habeas Corpus,? Legal Information Institute, June 2017, https://www.law.cornell.edu/wex/habeas_corpus.<br />

12. Ibid., 28 U.S.C. §§ 2241?2256.<br />

13. Ibid.<br />

14. Peter Strauss, ?Due Process,? Legal Information Institute, <strong>No</strong>vember 13, 2021, https://www.law.cornell.edu/wex/due_process.<br />

15. Ibid.<br />

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opportunity to be heard; and (3) a fair, impartial tribunal. 16<br />

the preventative detention program.<br />

The Legal Construction of the Detainee Program<br />

The events of September 11, 2001, shook the United States<br />

to its core. In the aftermath, a culture of shock, fear, and<br />

patriotic fervor pervaded American political life. All arms<br />

of government were deployed to prevent further attacks<br />

and bring those deemed responsible to justice for the loss<br />

of American life. Summarizing the Bush administration?s<br />

new attitude, the Justice Department?s Counterterrorism<br />

White Paper declared that ?The events of September 11<br />

transformed the mission of the Department of Justice. . . .<br />

Indeed, the protection of our national security and the<br />

prevention of terrorist acts are our number one goal. On<br />

every level, we are now committed to a new strategy of<br />

prevention.? 17<br />

In 2001, the AUMF enabled the Bush administration to<br />

take broad, unspecified measures to prevent future terrorist<br />

attacks. In a resolution passed by Congress and signed into<br />

law on September 18, the AUMF enabled the president to<br />

?use all necessary and appropriate force against those<br />

nations, organizations, or persons he determines planned,<br />

authorized, committed, or aided the terrorist attacks? on<br />

September 11. 18 The express purpose of expanded use of<br />

military force was for the United States to ?exercise its<br />

rights to self-defense? and ?prevent any future attacks of<br />

international terrorism.? 19 The vague phrasing of ?all<br />

necessary and appropriate force? provided the legal<br />

backing for the range of rights-abusive ?national security?<br />

measures implemented in the following years, including<br />

The U.S. security establishment designed the preventative<br />

detention program with the aim of detaining those<br />

suspected of carrying out future attacks in the United<br />

States or against U.S. forces in Afghanistan. The Bush<br />

administration envisioned preventative detention as a<br />

prisoner of war program adapted for the new realities of<br />

the War on Terror. 20 The practice of holding captured<br />

enemy combatants? those serving in an organized<br />

military, distinct from the civilian population? for the<br />

length of a conflict is a legal, long-accepted practice during<br />

times of war. However, during the unconventional War on<br />

Terror, where there was not a clearly defined enemy force,<br />

any disenchanted, conservative Muslim person in the<br />

Middle East or in the United States could be read by the<br />

U.S. government as a potential terrorist.<br />

The Bush administration found that the traditional<br />

categorization of prisoners of war? and the privileges and<br />

protections necessarily granted to people held under this<br />

classification? did not fit with the new style of war that it<br />

waged. The administration asserted that War on Terror<br />

detainees fit a new category of combatant, created and<br />

defined by the Bush administration: unlawful enemy<br />

combatants. 21 Under international humanitarian law,<br />

combatants (?lawful? combatants) cannot be prosecuted<br />

for lawful acts of war (e.g., killing or wounding enemy<br />

combatants) but can be prosecuted for violations of<br />

international humanitarian law. While they are detained,<br />

combatants are prisoners of war and, therefore, under the<br />

16. Nathan Chapman and Kenji Yoshino, ?The Fourteenth Amendment Due Process Clause,? Interactive Constitution, <strong>No</strong>vember 13, 2021,<br />

https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xiv/clauses/701.<br />

17. John McLoughlin, Gregory P. <strong>No</strong>one, and Diana C. <strong>No</strong>one, ?Security Detention, Terrorism, and the Prevention Imperative,? Case Western Reserve Journal of<br />

International <strong>Law</strong> 40, no. 3 (2009), https://www.proquest.com/docview/211129850.<br />

18. Public law 107-40, ?Authorization for the Use of Military Force,? Sept. 18, 2001, https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf.<br />

19. Ibid.<br />

20. Jonathan Masters, ?Guantanamo Bay: Twenty Years of Counterterrorism and Controversy,? Council on Foreign Relations, Oct. 5, 2021,<br />

https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.<br />

21. Knut Dörmann, ?The legal situation of ?unlawful/unprivileged combatants,?? International <strong>Review</strong> of the Red Cross 85, no. 849 (2003),<br />

https://www.pegc.us/archive/Journals/irrc_849_Dorman.pdf.<br />

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protection of the Third Geneva Convention. 22 But the term<br />

?unlawful combatant? is not mentioned in international<br />

humanitarian law. The Bush administration constructed it<br />

as a method of classifying people who play what it deemed<br />

corpus case to reach the Supreme Court was Rasul v. Bush<br />

(2004). It affirmed the potential of habeas corpus as a<br />

legal lifeline out of the black hole of Guantanamo.<br />

Legal Methods of Challenging the Detainee Program<br />

a direct role in hostilities? be it as civilians or members of<br />

militias or resistance movements? but who are not<br />

incorporated into a regular military. Their actions are<br />

understood to be acts of war though they are not legally<br />

?entitled? to carry out acts of war. Therefore, in the<br />

reckoning of the Bush administration, these ?unlawful<br />

combatants? are not entitled to the protections of the Third<br />

Rasul v. Bush<br />

Rasul v. Bush set precedent for non-citizen detainees held<br />

in Guantanamo Bay Naval Base to file for habeas corpus<br />

through domestic courts. 23 The petitioners, 14 Australian<br />

and Kuwaiti ?enemy combatants? taken from Afghanistan<br />

and held in Guantanamo, filed what were essentially<br />

Geneva Convention when they are captured. habeas corpus petitions, demanding (1) to be informed of<br />

The post-9/11 national security detainee program was built<br />

to maximize the authority and decision-making ability of<br />

the executive branch with minimal supervision or<br />

accountability. The AUMF empowered the executive<br />

branch to act on national security however it deemed fit,<br />

without the need to seek congressional approval for<br />

the charges against them, (2) to be allowed to meet with<br />

their families and with counsel, and (3) to have access to<br />

an impartial tribunal. The petitioners?case was dismissed<br />

by the district court and the court of appeals for lack of<br />

jurisdiction before the Supreme Court issued a writ of<br />

certiorari and took on the case in 2004.<br />

specific measures. This meant that the legislative branch<br />

In a 6?3 decision written by Justice Stevens, the Court<br />

deferred its constitutional war powers to the executive<br />

examined the legal question of whether the judicial branch<br />

branch. By constructing the category of ?unlawful<br />

could consider habeas corpus petitions filed on behalf of<br />

combatant,? the executive branch removed national<br />

foreign nationals imprisoned at Guantanamo Bay Naval<br />

security detainees from the jurisdiction of international<br />

Base. The Court found that, depending on certain factors,<br />

humanitarian war and military code on the treatment of<br />

foreign nationals could file for writs of habeas corpus if<br />

prisoners of war. Therefore, the typical legal constraints on<br />

(1) they were being held by the U.S. government and (2)<br />

national security actions? checks and balances from the<br />

there was sufficient U.S. jurisdiction over Guantanamo<br />

legislative branch and international humanitarian<br />

Bay for those held there to have access to the U.S. court<br />

law? were eliminated.<br />

system. 24 The Court had to distinguish this decision from<br />

Thus, the detainee program was constructed in a legal<br />

?black hole? beyond the jurisdiction of international and<br />

domestic law, solely under the purview of the executive<br />

branch without direct checks from the legislature or the<br />

judiciary. Filing for habeas corpus was the one legal<br />

pathway to challenge a prisoner?s detention and bring<br />

its holding in Johnson v. Eisentrager (1950), wherein<br />

German citizens captured in China were tried and<br />

convicted of war crimes by a military commission and<br />

thereby imprisoned on a U.S. base in Germany. Though on<br />

the surface the cases seem similar? foreign nationals<br />

detained outside of the United States during wartime? the<br />

accountability to detainers. The first detainee habeas Court highlighted several pivotal differences: the<br />

22. Ibid.<br />

23. Rasul v. Bush, 542 U.S. 466 (2004).<br />

24. Ibid.<br />

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petitioners in Rasul were not citizens of countries at war<br />

with the United States, they never had access to a tribunal<br />

nor been convicted, and they were held in a location where<br />

the United States has, in the words of the 1903 Agreement<br />

Between the United States and Cuba for the Lease of<br />

Lands for Coaling and Naval Stations, ?complete<br />

jurisdiction and control.? 25<br />

Additionally, the Court drew on the more recent Braden v.<br />

30th Judicial Circuit of Ky (1973) decision that the<br />

jurisdiction of the person holding the petitioner in<br />

detention matters rather than the jurisdiction of the<br />

petitioner, because habeas corpus acts on the person who<br />

holds the petitioner, not the petitioner. Under this<br />

understanding of Braden, the physical location of the<br />

detainees does not matter, so long as they are held by U.S.<br />

government officials. Finally, the Court noted that<br />

Eisentrager found that the petitioners did not have a<br />

constitutional entitlement to habeas corpus, saying<br />

nothing of statutory entitlement. The detainees at<br />

Guantanamo instead claimed, and the Court upheld, a<br />

statutory entitlement to file for habeas corpus under 28<br />

U.S.C. §2241. 26 Thus, the decision in Rasul to grant the<br />

detainees?habeas did not overrule Eisentrager but rather<br />

set a precedent for foreign nationals detained specifically<br />

in Guantanamo Bay to seek habeas corpus review.<br />

Hamdi v. Rumsfeld<br />

Rasul dealt with the question of whether foreign nationals<br />

detained outside the United States could petition for<br />

habeas corpus; Hamdi v. Rumsfeld (2004)? decided on the<br />

same day as Rasul? dealt with whether the executive<br />

branch may imprison U.S. citizens as foreign combatants<br />

without trial. 27 Instead of narrowly examining the legal<br />

recourse available to the 640 non-Americans held in<br />

Guantanamo in 2004, Hamdi looked at the legal<br />

foundations of the detainee program itself.<br />

Yaser Hamdi was a U.S. citizen captured as a Taliban<br />

fighter by the <strong>No</strong>rthern Alliance, a coalition of Afghan<br />

military groups opposed to the Taliban government and<br />

turned over to the U.S. military in 2001. He was detained<br />

and interrogated in Afghanistan before he was transferred<br />

to the U.S. Naval Base in Guantanamo Bay. When the<br />

military discovered that he was a U.S. citizen, they<br />

transferred him again to a naval brig in <strong>No</strong>rfolk, Virginia.<br />

Hamdi claimed to be a relief worker who was wrongly<br />

detained. However, the U.S. government asserted that he<br />

was an enemy combatant working for the Taliban. 28<br />

Hamdi v. Rumsfeld had a more twisted path through the<br />

courts than Rasul did. Hamdi?s father filed a petition for a<br />

writ of habeas corpus on Hamdi?s behalf in the United<br />

States District Court for the Eastern District of Virginia in<br />

2002, which granted his petition. On appeal, however, the<br />

Fourth Circuit Court of Appeals reversed and remanded<br />

the case to the District Court with instruction to conduct an<br />

inquiry into Hamdi?s status with ?deference to the<br />

Government?s security and intelligence interests.? 29<br />

Michael Mobbs, the Special Advisor to the Under<br />

Secretary of Defense for Policy, then submitted a short,<br />

unspecific statement outlining the government?s reasons<br />

for detaining Hamdi, asserting that he ?traveled to<br />

Afghanistan? in July or August 2001 where he ?affiliated<br />

with a Taliban military unit? which he stayed with after the<br />

September 11 attacks. The ?Mobbs Declaration? went on<br />

to state that, ?based on his interviews and in light of his<br />

association with the Taliban,? ?U.S. military screening<br />

team[s]? determined that Hamdi met ?the criteria for<br />

enemy combatants.? 30 The Mobbs Declaration was the sole<br />

25. Ibid, 542 U.S. at 480.<br />

26. Ibid, 542 U.S. at 471.<br />

27. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).<br />

28. Ibid, 542 U.S. at 510.<br />

29. Ibid, 542 U.S. at 512.<br />

30. Ibid, 542 U.S. at 513.<br />

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support that the government provided for Hamdi?s<br />

incarceration. Upon review, the district court found this<br />

statement fell ?far short? of supporting Hamdi?s detention<br />

and required a far more detailed, extensive list of new<br />

evidence. Upon appeal, the Fourth Circuit reversed the<br />

district court?s decision, asserting the executive?s right to<br />

detain enemy combatants? implying that Hamdi was an<br />

enemy combatant because he ?was captured in a zone of<br />

active combat in a foreign theater of conflict?? under<br />

Article II of the Constitution and the AUMF. 31<br />

The legal issue in question in Hamdi v. Rumsfeld asked<br />

whether the executive branch had the authority to detain<br />

U.S. citizens on U.S. soil as ?enemy combatants? without<br />

due process. The Supreme Court defined ?enemy<br />

combatants? as those who were ?part of or supporting<br />

forces hostile to the United States or coalition partners? in<br />

Afghanistan. Hamdi argued that his detainment violated 18<br />

U. S. C. Section 4001(a), which states that ?[n]o citizen<br />

shall be imprisoned or otherwise detained by the United<br />

States except pursuant to an Act of Congress.? 32 He further<br />

argued that, as a citizen held on U.S. soil under the<br />

jurisdiction of the U.S. Constitution, he was entitled to due<br />

process protected by the Fifth and Fourteenth<br />

Amendments: he had a right to formal charges, access to<br />

legal counsel, and review by an impartial tribunal. In<br />

response to Hamdi?s file for habeas corpus, the<br />

government outlined the executive?s authority to detain<br />

?enemy combatants? as stemming from the war powers<br />

outlined in Article II of the Constitution, affirmed in the<br />

AUMF which the government claimed acted as the ?Act of<br />

Congress? stipulated in Section 4001(a). In addition, the<br />

government claimed that Section 4001(a) applied to<br />

civilian detainees, not those detained by the military for<br />

reasons of national security. 33<br />

The Court, in a plurality opinion, affirmed the executive<br />

branch?s right to detain prisoners of war? with<br />

congressional authorization through the AUMF? as a legal<br />

and long-recognized practice in the laws of war. It noted,<br />

however, potential issues in applying laws of war as<br />

developed in traditional warfare to the untraditional, broad,<br />

and diffuse War on Terror. For example, without a clear<br />

temporal limit to the War on Terror, would detainees be<br />

held indefinitely? It drew heavily on the strong precedent<br />

set by Ex Parte Quirin (1942) to also hold that citizenship<br />

does not change depending on whether someone can be<br />

detained for national security reasons. 34 On the question of<br />

due process, both Hamdi and the government granted that<br />

he had a right to file for habeas corpus as someone<br />

detained in the United States at a time when the writ had<br />

not been suspended. The Court rejected out of hand,<br />

however, the government?s argument that there was no<br />

need for further fact-finding as Hamdi was detained in<br />

Afghanistan, an active combat zone. For the government?s<br />

second claim that further factual examination was<br />

unwarranted, the Court applied the test articulated in<br />

Mathews v. Eldridge (1975), weighing the private interest<br />

affected by the government against the government?s<br />

asserted interest. Here, the Court found that Hamdi?s right<br />

to due process, not offset by circumstances of war? and<br />

representative of the nation?s higher values of liberty and<br />

rule of law? of greatest weight and, therefore, required<br />

that Hamdi ?receive notice of the factual basis for his<br />

classification, and a fair opportunity to rebut the<br />

Government?s factual assertions before a neutral<br />

decisionmaker.? 35 In such a decision, the Court created a<br />

space for the judicial branch to check the executive?s war<br />

powers, stating that ?we have long since made clear that a<br />

state of war is not a blank check for the President when it<br />

31. Ibid, 542 U.S. at 514.<br />

32. Ibid, 542 U.S. at 517.<br />

33. Ibid.<br />

34. Ex Parte Quirin, 17 U.S. 1, 63 S. Ct. 2 (1942).<br />

35. Hamdi v. Rumsfeld, 542 U.S. at 533.<br />

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comes to the rights of the Nation?s citizens.? 36<br />

U.S. soil or elsewhere? are under the jurisdiction of the<br />

domestic civilian court system and have a right to seek a<br />

Hamdi v. Rumsfeld was a contested case, and the decision<br />

writ of habeas corpus there. The opinion in Hamdi v.<br />

outlined above was a plurality decision written by Justice<br />

Rumsfeld made clear that courts that receive petitions for a<br />

O?Connor and joined by Chief Justice Rehnquist, Justice<br />

writ of habeas corpus from an ?alleged enemy combatant?<br />

Kennedy, and Justice Breyer. Justice Souter, joined by<br />

must ?ensure that the minimum requirements of due<br />

Justice Ginsburg, wrote a separate opinion concurring in<br />

process are achieved.? Mullane outlines these minimum<br />

part and dissenting in part. Justice Souter concurred in the<br />

requirements to be (1) notice of the reason for<br />

section of the opinion which found that Hamdi had a right<br />

incarceration; (2) the opportunity to be heard; and (3) a<br />

to habeas corpus and due process; he dissented, however,<br />

fair, impartial tribunal.<br />

to the plurality?s finding that Congress authorized Hamdi?s<br />

38 However, the plurality opinion<br />

wrote that the Court?s standards for review ?could be met<br />

detention through the AUMF. Justices Scalia and Thomas<br />

each wrote dissents. 37 by an appropriately authorized and properly constituted<br />

The lack of a majority and the<br />

military tribunal,? thus suggesting a method of review<br />

ideological split of the Court shows the sharply contested<br />

apart from civilian courts.<br />

nature of the case and the emerging political divide on the<br />

39<br />

use of executive war powers post-9/11. The decision laid a The Department of Defense (DoD) created Combatant<br />

first, incomplete, and shaky foundation for detainees? Status <strong>Review</strong> Tribunals (CSRTs) and Administrative<br />

rights to access the courts, supported by the stronger, more <strong>Review</strong> Boards (ARBs) shortly after the Hamdi and Rasul<br />

definitive case Rasul v. Bush.<br />

opinions were released to provide some non-civilian due<br />

process for detainees.<br />

Policy Results of Rasul v. Bush and Hamdi v. Rumsfeld<br />

40 CSRTs were military-run hearings<br />

conducted for each detainee, without access to a personal<br />

Rasul and Hamdi reinforced the detainee program itself<br />

representative, structured as ?a formal review of all the<br />

and opened new pathways for individuals to seek judicial<br />

information related to a detainee to determine whether<br />

review. First, the Court affirmed that the executive?s<br />

each person meets the criteria to be designated as an<br />

post-9/11 detainee program was legal with the support of<br />

enemy combatant.? 41 If a detainee did not meet the criteria,<br />

the AUMF; it respected the ability of the executive to hold<br />

they would be released or repatriated. The structure of the<br />

detainees as a form of preventative action. Second, the<br />

CSRTs mirrored the prisoner of war hearings on the<br />

Court, in both decisions, maintained that there needs to be<br />

Geneva Convention. ARBs conducted annual reviews of<br />

some form of procedural and factual review of detainees?<br />

the prisoners?CSRT-determined status to prevent indefinite<br />

cases if they are to be held by the executive. By granting<br />

detention. The proceedings of both the CSRTs and the<br />

habeas review in both Rasul and Hamdi, the Court held<br />

ARBs were kept highly private with very little information<br />

that detainees? U.S. citizens or otherwise, imprisoned on<br />

of substance released to the public. 42<br />

36. Ibid, 542 U.S. at 536.<br />

37. Ibid.<br />

38. Chapman and Yoshino, ?The Fourteenth Amendment Due Process Clause.?<br />

39. Hamdi v. Rumsfeld, 542 U.S. at 538 (2004).<br />

40. ?Guantanamo Litigation ? History,? <strong>Law</strong>fare, <strong>No</strong>vember 27, 2021. https://www.lawfareblog.com/guantanamo-litigation-history.<br />

41. Ibid.<br />

42. Ibid.<br />

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Congress responded to the cases with the passage of the Laden?s chauffeur. He was captured in Afghanistan in 2001<br />

Detainee Treatment Act (DTA) in 2005. It directly aimed and transferred to the Guantanamo Bay Naval Base a year<br />

to halt Guantanamo detainees? right to statutory habeas later. He was charged with conspiracy to commit offenses,<br />

corpus found in Hamdi and Rasul. The DTA stripped all a charge triable by a military commission, over two years<br />

U.S. domestic courts of the ability to hear habeas corpus after that. Hamdan filed for habeas corpus and a writ of<br />

petitions from ?enemy combatants? and pushed review of mandamus, a court order charging a government official to<br />

any other legal petitions related to detention in do their duty or correct a lapse. 45 His filing claimed that<br />

Guantanamo to the U.S. Court of Appeals for the D.C. the military commission set to try him had no authority to<br />

Circuit. 43 However, the DTA did not stop the progression do so because conspiracy was not a violation of the law of<br />

of habeas petitions that were already pending, making it so war, neither Congress nor the common law of war<br />

the next slate of litigation that challenged DoD and supported trial, and the procedures of the commission were<br />

Congress?s actions limited the role of the courts in this not adequate to the standards of military and international<br />

area.<br />

law. 46<br />

DoD and Congress?s reactions to Rasul and Hamdi<br />

represented a push back on the encroachment of the<br />

judicial branch on national security matters. This pushback<br />

could be interpreted as serving the national security<br />

apparatus? interest in maintaining secrecy and full<br />

autonomy in how it manages detainees. The reactions<br />

could also, however, represent an attempt of the executive<br />

and legislative branches to regain full control over national<br />

security, a sphere where the judiciary traditionally had<br />

little role.<br />

Hamdan v. Rumsfeld and the Military Commissions Act<br />

Hamdan v. Rumsfeld (2006) was the next Supreme Court<br />

case that stemmed from a Guantanamo prisoner?s habeas<br />

corpus petition and took on the executive branch?s<br />

absolute authority over national security. 44 It made its way<br />

to the Supreme Court after the D.C. Court of Appeals<br />

reversed the district court?s decision to grant Hamdan<br />

habeas corpus.<br />

Hamdan was a Yemeni national who worked as Osama bin<br />

Hamdan took on multiple legal questions. First, whether<br />

the habeas petition? filed before the DTA passed and<br />

prevented any habeas petitions? could continue through<br />

the courts. The Supreme Court struck down the<br />

government?s motion to dismiss on this point with the<br />

reasoning that the DTA did not explicitly stop pending<br />

habeas petitions, allowing the case to proceed. Second, it<br />

took on the question of whether the procedures of the<br />

military commission were consistent with the Geneva<br />

Conventions and the military code. On both measures, the<br />

Court found that the military commission was insufficient.<br />

The Court found the tribunal to fail on the standard set by<br />

the Uniform Code of Military Justice that military<br />

commissions be ?uniform insofar as practicable? and by<br />

the Geneva Conventions? Common Article 3 which<br />

requires that detainees be tried by a ?regularly constituted<br />

court affording all the judicial guarantees which are<br />

recognized as indispensable by civilized peoples.? 47 A<br />

major aspect of the commission that the Court found did<br />

not meet these standards was that the detainee would not<br />

43. Ibid.<br />

44. Hamdan v. Rumsfeld, 548 U.S. 557, 573 (2006).<br />

45. ?Mandamus,? Legal Information Institute, Cornell <strong>Law</strong> School, https://www.law.cornell.edu/wex/mandamus.<br />

46. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).<br />

47. Ibid., 548 U.S. at 630.<br />

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have access to key pieces of the government?s evidence<br />

against him or the proceedings of the tribunal itself. In<br />

Boumediene v. Bush<br />

To review the legal standing of the detainee program when<br />

addition to the commission not fitting standards, the Court<br />

Boumediene v. Bush was granted certiorari, the<br />

found that, as an act of Congress did not empower the<br />

military commission to try Hamdan and the executive<br />

branch had no inherent right to do so, the method of trial<br />

by military commission was not legitimate as is. 48<br />

By finding that the Geneva Conventions applied to<br />

executive? backed by Congress with the AUMF? had<br />

been found to have the power to detain enemy combatants<br />

until the end of a conflict; Guantanamo had been found to<br />

be in the jurisdiction of the U.S. federal court system; and<br />

statutory habeas corpus had been found to extend to<br />

Hamdan, the Court rejected the government?s non-citizen enemy combatants. Beyond the judicial<br />

classification of detainees as ?unlawful enemy branch, CSRTs determined enemy combatant status,<br />

combatants? outside of the protection of international law.<br />

The case, therefore, again extended procedural protections<br />

to detainees? this time through international law and<br />

military code, not domestic law? and limited the power of<br />

the executive branch by determining that it did not have<br />

absolute, sole authority over enemy combatants?detention.<br />

The executive and legislative branches reacted to the<br />

Court?s decision in Hamdan as they did in the months<br />

following Rasul and Hamdi: by passing legislation to close<br />

the loopholes that brought the case to the Supreme Court. 49<br />

The Military Commissions Act (MCA) built on the DTA,<br />

which was largely taken apart by Hamdan. It authorized<br />

trial by military commission for violations of the laws of<br />

war and ?other purposes? and increased the list of crimes<br />

triable by commission, including conspiracy. The MCA<br />

military commissions authorized under the MCA tried<br />

those found as enemy combatants, and the DTA and MCA<br />

provided that the courts had no jurisdiction to hear<br />

Guantanamo detainees?habeas corpus petitions.<br />

Lakhdar Boumediene was arrested by Bosnian police in<br />

2002, along with five other Algerian nationals, under<br />

suspicion for plotting to blow up the U.S. Embassy in<br />

Bosnia. These detainees were classified as enemy<br />

combatants and held in Guantanamo. Boumediene filed a<br />

habeas corpus petition alleging violations of the due<br />

process clause, 28 U.S.C. §2241, the Geneva Conventions,<br />

and common law. The Appeals Court for the D.C. Circuit<br />

held that the MCA stripped the court system of the<br />

jurisdiction to hear his habeas corpus petition. The<br />

Supreme Court granted certiorari. 51<br />

also, again, prevented domestic courts from hearing<br />

habeas petitions of CSRT-designated enemy combatants. It<br />

was careful to explicitly block any pending cases at the<br />

time of passage from continuing their climb through the<br />

courts. 50 Thus, it was tailored to close the holes highlighted<br />

in Hamdan and cement executive authority over the<br />

detainee program.<br />

The legal issue at hand in Boumediene was whether the<br />

MCA was sufficient to strip federal courts of the<br />

jurisdiction to hear habeas corpus cases or whether it was<br />

an unconstitutional violation of the Suspension Clause.<br />

Justice Kennedy?s majority opinion found, firmly, that<br />

Guantanamo detainees had a constitutional right to habeas<br />

corpus. In addition, it found that, as the DTA?s measures of<br />

48. Ibid.<br />

49. ?Hamdan v. Rumsfeld: Applying the Constitution to Guantánamo prisoners,? Constitution Daily, National Constitution Center, June 29, 2017,<br />

https://constitutioncenter.org/blog/hamdan-v-rumsfeld-applying-the-constitution-to-guantanamo-prisoners.<br />

50. Ibid.<br />

51. Boumediene v. Bush, 553 U.S. 723 (2008).<br />

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reviewing detainees? statuses were ?not an adequate and<br />

effective substitute for habeas corpus,? the MCA amounted<br />

to an unconstitutional suspension of the writ of habeas<br />

corpus under the Suspension Clause. 52<br />

The opinion of the Supreme Court carefully and<br />

deliberately outlined the history of habeas corpus in<br />

English common law and in the debates of the Framers as<br />

a method of checking the arbitrary power of an executive.<br />

The Court emphasized the Framers? views that the<br />

separation of powers into three independent branches and<br />

habeas corpus were both measures of protecting individual<br />

liberties from ?undivided, uncontrolled power.? 53 For these<br />

reasons, the Court read the Suspension Clause as<br />

empowering the judiciary to use the ?time-tested device?<br />

of habeas corpus to ?safeguard the liberty? of incarcerated<br />

individuals. 54 As to whether constitutional habeas corpus<br />

could apply to non-citizens outside of the country, the<br />

Court referred to Eisentrager and other precedent set on<br />

the application of the Constitution outside of the United<br />

States. The opinion outlined three factors for<br />

consideration: (1) the citizenship of the petitioner as well<br />

as their status and how that status was determined, (2) the<br />

nature of U.S. control where a petitioner?s apprehension<br />

and detention took place, and (3) the practical obstacles in<br />

the petitioner?s access to the writ. On consideration of all<br />

three standards, the Court found that Guantanamo<br />

detainees should have access to habeas corpus. 55<br />

The Court established habeas corpus as an essential<br />

constitutional protection available to detainees held at<br />

Guantanamo, one which required a formal suspension<br />

from Congress only at times of ?Rebellion or Invasion<br />

[when] the public safety may require it.? The Court found<br />

that the DTA was intended to create a more limited<br />

procedure than would be provided by habeas corpus and<br />

that neither the AUMF nor the MCA could be considered a<br />

formal suspension of the writ. Therefore, through these<br />

acts, detainees at Guantanamo were denied their<br />

constitutional right to habeas corpus. Through the<br />

Boumediene v. Bush decision, sections of the DTA and<br />

MCA were struck down and the D.C. District Court<br />

opened to habeas petitions from Guantanamo. 56 Aspects of<br />

the CSRT and military commissions were maintained;<br />

however, if detainees found these measures insufficient,<br />

they had open access to the judicial system through habeas<br />

corpus to challenge their detention. Boumediene v. Bush<br />

has proven clear and conclusive on the issue of the<br />

procedural review available to national security detainees:<br />

it was the last time that the Supreme Court took up<br />

questions of national security detainees? constitutional<br />

rights.<br />

Conclusion<br />

The judicial branch tends to stay away from matters of<br />

national security and foreign policy. The Constitution<br />

explicitly grants war powers to the legislative branch and<br />

the executive branch but mentions nothing on war powers<br />

in Article III, which outlines the powers of the judiciary. In<br />

times of crisis, the prevailing wisdom holds that authority<br />

should be consolidated in the executive to maximize speed,<br />

flexibility, and the projection of strength. Increasing the<br />

number of decision-makers, and, thus, the number of<br />

opinions and inputs on a decision, slows the<br />

decision-making process and limits the available options<br />

that may save American lives. It was this reasoning in the<br />

fear and uncertainty following the 9/11 attacks that led<br />

Congress to pass the AUMF, consolidating control of the<br />

U.S. response to the 9/11 attacks in the executive branch. It<br />

was also this logic that informed Justices Roberts, Scalia,<br />

Thomas, and Alito?s biting dissents in Boumediene v. Bush.<br />

52. Ibid., 553 U.S. at 733.<br />

53. Ibid, 553 U.S. at 742.<br />

54. Ibid, 553 U.S. at 745.<br />

55. Ibid.<br />

56. ?Guantanamo Litigation ? History,? <strong>Law</strong>fare, <strong>No</strong>vember 27, 2021. https://www.lawfareblog.com/guantanamo-litigation-history.<br />

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Justice Scalia went as far to warn in his dissent that, in<br />

?elbowing aside the military,? the Court?s decision ?will<br />

almost certainly cause more Americans to be killed.? 57<br />

However, the Boumediene v. Bush decision also extended<br />

American principles of rule of law and individual liberty to<br />

an arena where government rights abuses are strife.<br />

Habeas corpus is a constitutionally guaranteed protection<br />

viewed by the Framers as essential to individual liberty<br />

and a balanced government. It provides a method of legal<br />

recourse to men seized in tenuous circumstances, often<br />

without much evidence, and held without trial or access to<br />

counsel? sometimes subject to torture and cruel and<br />

inhumane conditions? for years without an end to the<br />

conflict in sight. Thus, expanding constitutional habeas<br />

corpus to Guantanamo detainees brought some level of<br />

accountability and balance to the detainee program built<br />

under the unilateral authority of the executive branch,<br />

purposely constructed to be outside of the bounds of<br />

international and domestic law.<br />

Through dialogue and pushback with the executive and<br />

legislative branches, the judicial branch extended some<br />

constitutional protections to detainees through the habeas<br />

corpus cases discussed in this paper. These cases built<br />

detainees a lifeline out of the legal ?black hole? in which<br />

the Bush administration constructed the detainee program.<br />

They brought some measure of accountability and rule of<br />

law where there was none, building pathways out of<br />

incarceration for hundreds of detainees. The Supreme<br />

Court, therefore, established that the national security<br />

apparatus could not operate with complete impunity,<br />

helping to rebalance the system of checks and balances<br />

and bolster the public sense of justice in the wake of the<br />

War on Terror.<br />

57. Boumediene v. Bush, 553 U.S. at 828 (2008) (Scalia, J., dissenting).<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />








Olwyn Kells '23<br />


Strippers are a marginalized class of workers, as not only is their work taboo, but they face highly<br />

discriminatory working conditions within the strip club. Dancers have been subject to numerous regulations<br />

infringing on their First Amendment right to free speech, as well as predatory and unjust working conditions<br />

through independent contractor agreements. In Rhode Island and across the United States, dancers have sought<br />

legal remedy to protect their expressive conduct and earn labor protections through classification as employees<br />

rather than contractors under the Fair Labor Standards Act. This classification better secures the protection of<br />

the rights of exotic dancers, and not only increases their safety, but guarantees that workers are subject to<br />

equitable working conditions. Content Warning: This article discusses sexual violence.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Introduction<br />

Exotic dancing is a highly marginalized profession, with<br />

strippers regarded as the means to a ?fun night out? and<br />

nothing more. As workers in the United States, dancers<br />

should theoretically be protected under federal laws.<br />

However, this has not been the case, and hostile and<br />

exploitative work conditions have ensued. Additionally,<br />

many dancers are independent contractors, which has<br />

severely limited their rights in the workplace. Many<br />

federal cases have attempted to limit the ability of dancers<br />

to engage in exotic dancing, in particular nude dancing.<br />

Although dancers have fought back against regulations<br />

using their First Amendment rights, they were<br />

unsuccessful. The next best way to protect dancers?rights<br />

was to use the Fair Labor Standards Act (FLSA). The<br />

FLSA proved to be successful, as dancers who sued their<br />

clubs have been reimbursed for damages and have been<br />

granted employee status. In order to address the<br />

exploitation and violence against exotic dancers in the<br />

United States, dancers must be, in accordance with the law<br />

and federal court rulings, considered employees rather than<br />

independent contractors.<br />

Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

This paper will examine recent legal cases involving the<br />

fair employment and free speech of exotic dancers, relying<br />

heavily on the first person account of a former dancer in<br />

Providence to establish background about the strip club?s<br />

operations and work culture. This paper will analyze three<br />

cases from across the country that address First<br />

Amendment challenges to restrictions on expressive<br />

conduct, including nude dancing, in the face of state<br />

interest claims. These cases demonstrate First Amendment<br />

jurisprudence?s failure to protect dancers and their ability<br />

to earn money. Then, this paper examines legal challenges<br />

to the classification of dancers as independent contractors<br />

under the FLSA. The designation of dancers as employees<br />

instead of contractors would enable them to be paid<br />

minimum wage, receive overtime pay, and ultimately<br />

receive healthcare benefits. Additionally, the FLSA<br />

protects dancers from illegal wage deductions. With this<br />

evidence, this paper posits the normative argument that<br />

although strippers are viewed as commodities or a means<br />

to sexual gratification, FLSA should be used as a legal<br />

remedy to ensure that they have equitable working<br />

conditions.<br />

Understanding the Strip Club<br />

Stripping, otherwise known as exotic dancing, is a pillar of<br />

the adult entertainment industry. Patrons pay for sexual<br />

gratification in the form of a variety of services from<br />

dancers, including lap dances, exclusive VIP rooms with<br />

bottle service, and specialty events such as bachelor<br />

parties. Depending on the state, strip clubs may be ?no<br />

contact,? meaning that patrons are not allowed to initiate<br />

any physical contact with the dancers. 1 Some clubs also<br />

offer fully-nude dancing services, but typically clubs will<br />

only let dancers take off their tops. 2 While fully-nude<br />

stripping is less common, dancers who perform these<br />

services are often paid much more. Unlike prostitution,<br />

stripping is completely legal and does not involve sex. 3<br />

However, it is still common for patrons to solicit<br />

prostitution. 4 Ultimately, the strip club is a place where the<br />

company and beauty of a woman is commodified for<br />

consumption by patrons. Additionally, the vast majority of<br />

strip clubs in the United States, and every strip club in<br />

Rhode Island, exclusively hire women. <strong>No</strong>ne of the cases<br />

addressed in this paper address male exotic dancers,<br />

mainly due to the fact that male-focused strip clubs operate<br />

1. Sarah Doe (exotic dancer in Providence), interview by Olwyn Kells, <strong>No</strong>vember 15, 2021.<br />

2. Ibid.<br />

3. Ibid.<br />

4. Ibid.<br />

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Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

much differently than female strip clubs. 5 Although there<br />

are common themes of objectification and the dangerous<br />

situations that exotic dancers are placed in, female dancers<br />

face a disproportionate amount of danger and sexual<br />

assault in the workplace and face greater legal issues due<br />

to their work arrangement.<br />

How Does a Strip Club Operate?<br />

From the hiring process onward, dancers are unduly<br />

economically exploited and deprived of autonomy in their<br />

employment. Strip clubs operate by hiring dancers through<br />

an audition process. Dancers come in on designated<br />

audition days and usually perform in front of either the<br />

manager and the ?house mom,? or in front of the patrons in<br />

the club. The ?house mom? is typically a woman who<br />

organizes the dancers?schedules, ensures that the dancers<br />

are following the rules, and enforces the dress standards of<br />

the club. Dancers must provide their own makeup, attire,<br />

and hair, and oftentimes there is a designated stylist for<br />

each shift. 6 Dancers are free to drink alcohol at the club but<br />

can face punishments, such as a two-week suspension, if<br />

they are caught doing drugs, engaging in prostitution, or<br />

breaking any club policies. 7 Dancers tend to have free<br />

reign over their personas: they can pick costumes and<br />

create a personality to appeal to patrons, often<br />

communicating with them beyond the walls of the club to<br />

establish ?regulars.? 8 However, dancer regulations for strip<br />

clubs vary, and in some high-end clubs the dancers are<br />

held to very strict standards. At the typical club, though,<br />

management instructs dancers to (a) play into stereotypes<br />

and (b) sell as many dances as possible. 9 This encourages<br />

dancers to commodify themselves, whether through their<br />

race, age, hair color, or height, as well as to ?lead<br />

customers on? to convince them that they will be ?sexually<br />

satisfied if they keep spending money.? 10 Although clubs<br />

vary in management style as well as atmosphere, the core<br />

element of selling oneself as part of sexual gratification is<br />

consistent. 11<br />

Stripping follows a distinct employment structure that<br />

leaves dancers more free than other workers in some ways<br />

but more open to exploitation in others. Dancers are often<br />

categorized as independent contractors. Because they set<br />

their own schedules, they are free to work at other clubs<br />

whenever they want. Also, they are not paid minimum<br />

wage. Instead, dancers are paid exclusively by the<br />

customers, either in tips or in exchange for private<br />

dances. 12 Dancers who are categorized not as employees<br />

but as independent contractors are subject to a number of<br />

exploitative conditions in the club. Dancers are generally<br />

subject to the following provisions: (1) pay a ?house fee,?<br />

or a set amount of money per shift to be able to perform;<br />

(2) pay a ?tip out,? around 20 dollars a night, to the other<br />

employees of the club, such as the house mom, the floor<br />

host, the bouncers, and the DJ; (3) pay out a percentage of<br />

every lap dance or VIP room fee at the discretion of the<br />

club; and (4) sign some variation of an independent<br />

contractor agreement, and thus do not receive health<br />

5. Rebecca Clark, ?Male Strippers: Ladies?Night at the Meat Market.? Journal of Popular Culture 19, no. 1 (Summer, 1985): 54,<br />

https://www.proquest.com/scholarly-journals/male-strippers-ladies-night-at-meat-market/docview/1297348144/se-2?accountid=9758.<br />

6. Ibid.<br />

7. Mindy S. Bradley-Engen and Jeffery T. Ulmer, ?Social Worlds of Stripping: The Processual Orders of Exotic Dance,? The Sociological Quarterly 50, no. 1 (2009):<br />

38?40, http://www.jstor.org/stable/40220120.<br />

8. Ibid., 38.<br />

9. Ibid., 50.<br />

10. Ibid., 38.<br />

11. Ibid.<br />

12. Ibid.<br />

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Exotic Dancing in Rhode Island and Beyond:<br />

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insurance or minimum wage from the club.<br />

For context, clubs do pay benefits to the other employees<br />

at the club, such as the bartenders and kitchen staff. 13 The<br />

club also provides physical protection to employees that is<br />

often minimal for the dancers. Occasionally, there is a<br />

police officer on duty at the end of the night who escorts<br />

employees to their cars, but this is not guaranteed and<br />

varies widely depending on local practice. Furthemore,<br />

club bouncers do not routinely patrol the club and will<br />

only act if a dancer cries out for help or if there is a<br />

commotion. 14 In VIP rooms, where dancers engage with<br />

patrons outside the main dance area of the club, there is<br />

often limited visibility and high potential for groping, rape,<br />

or drugging. Most clubs have metal detectors, but this does<br />

not dissuade disorderly conduct amongst the patrons. 15 In<br />

summary, dancers face dangerous, exploitative conditions<br />

that warrant a consideration of what legal protections are<br />

available for this vulnerable group.<br />

Legal Challenges Faced by Strippers<br />

In recent years, state and federal courts have addressed two<br />

core legal questions on exotic dancing: whether or not it is<br />

protected under the First Amendment and whether the<br />

dancers should be classified as employees under FLSA.<br />

First Amendment cases limited dancer conduct, in<br />

particular the level of nudity in dancing and the tactics<br />

available to dancers to earn additional wages. FLSA cases,<br />

in contrast, redressed the unfair employment structure of<br />

the strip club and granted stronger labor rights to dancers.<br />

Clubs and the dancers have used First Amendment claims<br />

to fight back against repeated state and federal regulatory<br />

efforts to end the practice of exotic dancing. To<br />

successfully combat these regulations, clubs have had to<br />

prove that exotic dancing is expression and is therefore<br />

warranted some level of protection under the First<br />

Amendment. Next, courts decide whether the state?s<br />

regulatory interest justifies the incidental infringement on<br />

the protected expression. States have used multiple means<br />

of justifying their interest, such as advancing Twenty-First<br />

Amendment arguments to regulate alcohol sales. Section 2<br />

of the Twenty-First Amendment states that ?The<br />

transportation or importation into any State . . . of<br />

intoxicating liquors, in violation of the laws thereof, is . . .<br />

prohibited?; states have the power to regulate alcohol<br />

sales, importation, and use. 16 This legal theory was<br />

established in California v. La Rue (1972), as states were<br />

able to extend their power under the Twenty-First<br />

Amendment to monitor places where alcohol is served. In<br />

tandem, Barnes v. Glen Theatre Inc. (1991) and Biscayne<br />

Entertainment, Inc. v. City of Providence Board of Licenses<br />

(2020) advanced the argument that the state?s power to<br />

promote public health justified incidental infringement on<br />

the First Amendment right of protected expression. These<br />

cases established a legal path for limiting dancers?conduct<br />

and ability to earn a living.<br />

California v. La Rue<br />

In California v. La Rue, the Supreme Court addressed the<br />

question of whether sexually explicit live entertainment in<br />

bars and nightclubs licensed to sell liquor was protected<br />

expression under the First and Fourteenth Amendments,<br />

and whether California?s power to regulate liquor sales<br />

under the Twenty-First Amendment was strong enough to<br />

justify abridging those rights. The California Department<br />

of Alcoholic Beverage Control prohibited the display of<br />

sexually explicit entertainment in these establishments in<br />

13. Interview with Sarah Doe (2021).<br />

14. Ibid.<br />

15. Bradley-Engen, 39.<br />

16. U.S. Const. amend. XXI, § 2.<br />

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order to prevent acts of prostitution and rape. 17 The U.S.<br />

District Court for the Central District of California ruled<br />

against the department. In their decision, the court cited the<br />

First Amendment?s protection of expressive conduct and<br />

the Fourteenth Amendment?s incorporation of federal<br />

rights to the states. 18 The Supreme Court, however,<br />

reversed the decision of the district court.<br />

The Supreme Court concluded that the department did not<br />

violate the First Amendment since the regulation narrowly<br />

prohibited specific conduct in establishments where liquor<br />

was served. 19 Thus, the prohibition was not an overbroad<br />

regulation of expressive conduct. The Supreme Court also<br />

found that the department?s effort to prevent instances of<br />

prostitution by regulating the inebriation of customers in<br />

establishments with stripping was a valid state interest. 20<br />

Eventually, the Court ruled that while the First and<br />

Fourteenth Amendments do initially protect the<br />

performances, the state?s power to regulate liquor sales<br />

under the Twenty-First Amendment supersedes the rights<br />

protected under the First and Fourteenth Amendments. 21<br />

Barnes v. Glen Theatre, Inc.<br />

Taking this logic further, Barnes v. Glen Theatre, Inc.<br />

addressed an Indiana statute that prohibited nudity in a<br />

non-private place. This statute does not prohibit stripping<br />

but prohibits dancing where dancers are wearing anything<br />

less than (in the words of the Supreme Court) ?pasties and<br />

g-strings.? 22 According to the state, the Indiana criminal<br />

law statute was directed to promote public health, order,<br />

and decency. Regardless, the Seventh Circuit sided with<br />

the local strip club proprietors and concluded that nude<br />

dancing was both protected under the First Amendment as<br />

protected expression and that the local statute, Indiana<br />

Code § 35-45-4-1, was ?directly related to the suppression<br />

of what may very well be non-obscene free expression.? 23<br />

The Supreme Court, however, applied the O?Brien test to<br />

decide whether the infringement was justified; the O?Brien<br />

test states that government regulation is justified if ?it<br />

furthers an important or substantial governmental interest;<br />

if the governmental interest is unrelated to the suppression<br />

of free expression; and if the incidental restriction on<br />

alleged First Amendment freedoms is no greater than is<br />

essential to the furtherance of that interest.? 24 The Court<br />

ruled that the public indecency statute was justified,<br />

despite prohibiting nude dancing, since it is within the<br />

police power of the state, it furthers a substantial interest in<br />

combating public indecency, the message of the conduct<br />

was not diluted by wearing clothing, and the collateral<br />

effects of prostitution justified the incidental infringement<br />

of the dancer?s expression. 25<br />

What the Court failed to consider, however, is that nude<br />

dancers are often tipped more than their clothed<br />

counterparts. By restricting this form of conduct the Court<br />

inadvertently diminished the potential amount of money<br />

dancers earn and further cemented the economic instability<br />

many dancers feel. Under the cover of this decision, states<br />

went on to use public indecency and public health grounds<br />

to regulate exotic dancing and deprive dancers of earnings.<br />

17. Cal v. La Rue, 409 U.S. 109, 111-115 (1972).<br />

18. Ibid., 409 U.S. at 117-119.<br />

19. Ibid.<br />

20. Ibid.<br />

21. Ibid.<br />

22. Barnes v. Glen Theatre, 501 U.S. 560, 563 (1991).<br />

23. La Rue v. California, 326 F. Supp. 348, 355 (C.D. Cal. 1971).<br />

24. Barnes, 501 U.S. at 567-568.<br />

25. Ibid., at 567-572.<br />

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Biscayne Entertainment, Inc. v. City of Providence<br />

Board of Licenses<br />

Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

offer nude dancing services; however, they have not been<br />

linked to prostitution.<br />

The question of nude dancing as protected conduct reached<br />

the Rhode Island District Court in the case Biscayne<br />

Entertainment, Inc. v. City of Providence Board of<br />

Licenses. Biscayne Entertainment, owner of the club ?Wild<br />

Zebra,? now known as ?Silhouettes,? initiated the suit<br />

when the city board of licenses revoked their operating<br />

license because the club offers nude dancing, which was<br />

linked to two instances of prostitution. 26 Similar to Barnes,<br />

the plaintiff claimed that the decision violated the First<br />

Amendment right to offer nude dancing, claiming that it<br />

was a constitutionally protected form of expressive<br />

conduct. The court conducted the O?Brien test and found<br />

that it was satisfied; the court invoked precedent from<br />

Barnes, saying that the incidental restriction on the First<br />

Amendment rights of the club was valid in an effort to<br />

enforce a public health regulation. 27 Additionally, the court<br />

found that the plaintiffs were unlikely to succeed on the<br />

merits, as prostitution is not a protected form of<br />

expression, thus denying the preliminary injunction.<br />

Biscayne Entertainment filed a motion of reconsideration,<br />

stating that the removal of its business licenses was a<br />

substantial burden on its ability to operate and unduly<br />

burdened the protected expressive conduct of the<br />

dancers. 28 The court then granted the motion for<br />

reconsideration on the basis of a lack of avenues available<br />

to appeal the board?s decision not on pure First<br />

Amendment grounds. The revocation was temporarily<br />

stayed.<br />

In essence, nude dancing is not a protected form of<br />

conduct in Rhode Island when the state wants to enact<br />

public health measures. There are clubs that continue to<br />

In summary, the U.S. federal court system has consistently<br />

sided in favor of government regulations prohibiting nude<br />

dancing, though it is a protected form of speech under the<br />

First Amendment. These decisions diminish the earning<br />

potential of dancers and maintain the status quo that<br />

deprives dancers of their full labor rights. The First<br />

Amendment has thus been shown to be an ineffective tool<br />

to sufficiently protect dancers, making it clear that a<br />

different avenue is needed to secure their labor rights.<br />

Dancer Rights Under the Fair Labor Standards Act<br />

More successfully, dancers have utilized the Fair Labor<br />

Standards Act to redress the abuses faced by their<br />

employers. Specifically, clubs?designations of dancers as<br />

independent contractors instead of employees have<br />

stripped dancers of their right to the minimum wage and<br />

made them vulnerable to illegal wage deductions. Federal<br />

cases Reich v. Circle C Investments (1993) and Hart v.<br />

Rick?s Cabaret (2013) established the precedent that<br />

dancers are employees under the FLSA. The decisions in<br />

these two cases then influenced three Rhode Island FLSA<br />

cases, Levi v. Gulliver?s Tavern Inc. (2018), Pizzarelli v.<br />

Cadillac Lounge (2018), and Binienda v. Atwells Realty<br />

Corp (2018). Yet, the uniform decision from each federal<br />

court that dancers should be classified as employees, not<br />

contractors, is still routinely violated.<br />

The FLSA provides a comprehensive list of protections for<br />

all employees. Protected aspects of work include a<br />

guarantee of minimum wage for all forms of labor, the<br />

nullification of any contract that denies a worker the<br />

minimum wage, and requirement of overtime pay for work<br />

26. Biscayne Entm?t, Inc. v. City of Providence Bd. of Licenses, C.A. <strong>No</strong>. 20-130-JJM-LDA, 1, 1-2 (D.R.I. 2020).<br />

27. Ibid.<br />

28. Ibid.<br />

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exceeding 40 hours a week. 29 Amended by the Affordable<br />

Care Act, the FLSA now also states that any employer that<br />

maintains 50 full time employees for greater than 120 days<br />

must provide a health insurance plan to employees. 30 This<br />

is especially important for strip clubs, which often have 50<br />

employees working full-time in management, security,<br />

bartending, and food service. 31 Since its passage, the courts<br />

have used the FLSA to establish a five-part economic<br />

realities test to determine who qualifies for protections as a<br />

full employee, as opposed to an independent contractor.<br />

First described in the case Reich v. Circle C Investments,<br />

the test includes: ?the degree of control exercised by the<br />

alleged employer, the extent of the relative investments of<br />

the worker and alleged employer, the degree to which the<br />

worker?s opportunity for profit and loss is determined by<br />

the alleged employer, the skill and initiative required in<br />

performing the job, and the permanency of the<br />

relationship.? 32 The Reich test was used to grant dancers<br />

employee status in Hart v. Rick?s Cabaret and has been<br />

applied locally in three Rhode Island cases.<br />

Precedential FLSA Cases<br />

Reich v. Circle C Investments, Inc.<br />

The case Reich v. Circle C Investments, Inc. in the United<br />

States Court of Appeals for the Fifth Circuit established<br />

precedent for future FLSA cases. Robert Reich, Secretary<br />

of Labor, sued Circle C Investments, owner of the clubs<br />

?Lipstick? and ?Crazy Horse Saloon,? claiming that the<br />

company?s dancers were employees under the FLSA. 33<br />

After analyzing the five-part FLSA criteria, the district<br />

court determined that the dancers were in fact employees. 34<br />

The appeals court affirmed this decision, but remanded the<br />

case back to the district court to determine whether the tips<br />

paid by the dancers, the expenditures for the costumes and<br />

uniforms worn by the dancers, and the fines imposed on<br />

employees were all taken into account in the calculation of<br />

the owed wages. 35 The establishment of the FLSA test for<br />

determining employment status was paramount in every<br />

subsequent case regarding strippers?employment status.<br />

Hart v. Rick?s Cabaret<br />

In Hart v. Rick?s Cabaret, dancers Sabrina Hart and Reka<br />

Furedi represented a larger class of dancers and brought<br />

five specific claims under the FLSA and the New York<br />

Labor <strong>Law</strong> (NYLL): misclassification of labor, failure to<br />

pay minimum wage under the FLSA and the NYLL,<br />

unlawful requesting and receiving of portions of plaintiffs?<br />

wages in violation of NYLL, unlawful retention of<br />

plaintiffs? gratuities in violation of NYLL, and unlawful<br />

deduction of wages by imposing fines and penalties in<br />

violation of NYLL. 36<br />

To reach a decision, the court first conducted an analysis of<br />

employment status. The court found that Rick?s Cabaret<br />

held an immense degree of control over the dancers,<br />

including a system of extensive fines and written<br />

guidelines. The club dictated the length of the dancer?s<br />

dress, what style heels she could wear, and her attitude,<br />

and banned chewing gum to create a more ??upscale club?<br />

29. Fair Labor Standards Act 29 U.S.C.S. ch.8 (1938) (amended 2007).<br />

30. Patient Protection and Affordable Care Act, 42 U.S. Code § 18001 (2010) (amended 2015).<br />

31. Interview with Sarah Doe (2021).<br />

32. Reich v. Circle C Invs., 998 F.2d 324, 327-328 (5th Cir. 1993).<br />

33. Ibid., at 329-330.<br />

34. Ibid.<br />

35. Ibid., at 330-331.<br />

36. Hart v. Rick's Cabaret Int?l, Inc., 967 F. Supp. 2d 901, 904-905 (S.D.N.Y. 2013).<br />

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feel.? 37 Similarly, the club imposed discipline or<br />

termination when dancers violated the rules. In fact, Rick?s<br />

imposed 7,000 fines on dancers between 2005 and<br />

February 2010. These consisted of 5,897 fines for not<br />

showing up to a scheduled shift and 227 fines for lateness.<br />

More infrequently, fines were for ?refusing a drink or a<br />

bottle,? using the public restroom, leaving without<br />

permission, and ?slow work on stage.? 38 Although Rick?s<br />

Cabaret often credited fines back to the dancers, many<br />

dancers only received their money back when they audibly<br />

complained. However, the court concluded that not all<br />

guidelines were indicative of control. Prohibiting pole<br />

tricks on the small stage protected the safety of the dancers<br />

and prohibiting the exposure of tan lines protected dancers<br />

legally from accidentally exposing private areas.<br />

Nevertheless, the court concluded that the potential power<br />

of the employer to impose fines or restrictions, even if<br />

exerted infrequently, was still a mark of control and<br />

contradicted dancers?status as contractors.<br />

The court cited precedent from the Reich case, quoting the<br />

Fifth Circuit?s statement that exotic dancers are ?far more<br />

closely akin to wage earners toiling for a living, than to<br />

independent entrepreneurs seeking a return on risky capital<br />

investments.? 39 Unlike the dancers, Rick?s Cabaret had a<br />

comparatively large investment in its business and had<br />

large margins for profit and loss. The defendants countered<br />

this reasoning by stating that dancers had extensive control<br />

over their work by scheduling how many shifts they could<br />

take a week, as well as by building relationships with<br />

customers to entice them. The court deemed that the<br />

factors of control and investment favored employee<br />

status. 40 As to the final three factors of integration,<br />

permanency, and skill, the court ruled the dancers were<br />

well integrated into the functioning of the business, were<br />

partially permanent employees, and required minimum<br />

skill to start working. 41<br />

Rick?s Cabaret then argued that even if the dancers were<br />

classified as employees, the club had exceeded its<br />

minimum wage obligations through performance fees. 42<br />

Every dance in the club had a mandatory service charge<br />

that was paid directly to the dancers. According to the<br />

club?s records, the amount of performance fees redeemed<br />

by credit card (cash was paid directly) totaled $33.8<br />

million from 2005 to 2012. 43 Calculated per hour worked<br />

for each individual dancer, this amounted to an average of<br />

23 dollars per hour. If performance fees counted toward the<br />

wage requirement, the club would have paid the dancers<br />

above minimum wage.<br />

The court found this argument unpersuasive. First, the<br />

plaintiffs asserted that the calculation for minimum wage<br />

was wrong because the club did not calculate the fees paid<br />

to dancers individually on a weekly basis. The plaintiffs<br />

calculated that for 87.27 percent of dancers (of the<br />

approximately 1,900 dancers in the case), the hourly rate<br />

fell below the minimum wage for at least one week during<br />

their employment. The court found that the fees did not<br />

count as ?tip credit? towards minimum wage under the<br />

FLSA, as (1) they were not printed on any receipts, (2) the<br />

club did not pay employees directly but instead had<br />

patrons pay the employees, and (3) the employees were not<br />

37. Ibid., at 916.<br />

38. Ibid., at 917.<br />

39. Ibid., at 920.<br />

40. Ibid.<br />

41. Ibid., at 920-923<br />

42. Ibid., at 929-931.<br />

43. Ibid., at 927-28.<br />

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properly notified. 44 The court?s thorough review of the<br />

strip club?s practices led to the determination that Rick?s<br />

Cabaret failed to properly classify its dancers as employees<br />

and unduly profited off of the dancers. Since the plaintiffs<br />

were the main representatives of the class action lawsuit<br />

against Rick?s Cabaret, the decision to grant FLSA<br />

certification and award backwages gave legal protection to<br />

many dancers who otherwise would be unable to sue the<br />

club individually.<br />

Hart and Reich established a valuable framework for<br />

addressing current dancer claims to employee status under<br />

the FLSA. The same standard of review was used in both<br />

cases as in the Rhode Island cases. Although Hart was a<br />

New York case and used the NYLL to address the legality<br />

of fines, it was an invaluable interpretation of the law to<br />

find compulsory ?tipping out? in violation of labor laws.<br />

This is true especially in light of protections for wage<br />

deductions that exist in Rhode Island as well. Under the<br />

General <strong>Law</strong>s of Rhode Island § 28-14-3.2, employers<br />

may not make wage deductions for ?fines or penalties for<br />

tardiness, misconduct, or quitting without notice.? 45 While<br />

none of the recent Rhode Island cases address the legality<br />

of fines in clubs, Hart demonstrated that arbitrary fines<br />

and deductions from dancers? earnings were reasonably<br />

deemed illegal.<br />

Rhode Island FLSA Cases<br />

This section addresses three recent cases involving the<br />

FLSA and arbitration in Rhode Island. Levi v. Gulliver?s<br />

Tavern Inc. and Pizzarelli v. Cadillac Lounge, L.L.C.<br />

considered the issue of FLSA labor classification while<br />

Binienda v. Atwells Realty Corp. addressed the issue of<br />

arbitration within a FLSA case in a Rhode Island context.<br />

These cases reclassified dancers as employees under the<br />

FLSA, thus changing the way these specific strip clubs are<br />

legally allowed to operate, and further demonstrating the<br />

need for more formal, top-down enforcement of this FLSA<br />

interpretation.<br />

Levi v. Gulliver?s Tavern Inc.<br />

In the April 2018 case Levi v. Gulliver?s Tavern, heard<br />

before the United States District Court for the District of<br />

Rhode Island, dancers Ruby Levi and Emily Chicoine<br />

alleged that the owners of the Providence strip club ?Foxy<br />

Lady? violated the FLSA by misclassifying them as<br />

independent contractors instead of employees. The<br />

plaintiffs? success would entitle them to back pay of<br />

minimum wage and continued minimum wage pay, ensure<br />

that tip outs could no longer be enforced, and mandate<br />

benefits for full-time dancers. The court used the five-part<br />

FLSA analysis established under Reich to decide the<br />

case. 46<br />

The court reasoned that the club exerted control over<br />

plaintiffs through various means, such as the ?house mom?<br />

exercising full discretion over employment decisions<br />

during the hiring process. The club also controlled when<br />

dancers could work, meaning that they could not perform<br />

without permission from the club. Additionally, dancers<br />

were required to follow the club?s rules, such as submitting<br />

to drug tests, minimum fee requirements, and house fees.<br />

However, dancers were not required to perform on a<br />

designated shift and could walk in for unscheduled shifts.<br />

In the opinion of the court, control over a worker is<br />

holistic, meaning that despite dancers being able to walk<br />

in, other means of authority, like the ?house mom? acting<br />

as a de facto manager, were indicative of control over<br />

workers. The court found that these factors pointed to<br />

employee status. 47<br />

44. Ibid., at 929-931; Fair Labor Standards Act 29 U.S.C.S. ch.8 (1938) (amended 2007).<br />

45. R.I. Gen. <strong>Law</strong>s § 28-14-3.2 (2016) (amended 2017).<br />

46. Levi v. Gulliver?s Tavern, Inc., C.A. <strong>No</strong>. 15-216 U.S., 1 (D.R.I. 2018).<br />

47. Ibid., at 9-13.<br />

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Furthermore, club owners?heightened financial investment<br />

in the business as contrasted with the dancers indicated<br />

full-employee status. The club owners paid for nearly all of<br />

the financial overhead, such as the lighting, rent, DJ, and<br />

the liquor license. Dancers only paid for their cosmetics<br />

and the house fee, although some had spent up to $15,000<br />

on cosmetics during their tenure at the club. 48 The dancers?<br />

comparatively small investment into their costumes and<br />

makeup was more akin to an employee buying their own<br />

uniform than to an independent contractor?s full<br />

participation in business practices. Additionally, the<br />

relative balance of profit and loss also pointed to<br />

employment status. The dancers?opportunity for profit or<br />

loss was only marginal, as they suffered a 10 percent loss<br />

when they redeemed the in-house currency and spent large<br />

sums of money on cosmetics and costumes. However, the<br />

defendants made money by collecting house fees, cover<br />

charges to enter the club, and revenue from food and<br />

alcohol. Thus, the club was in a position to lose and gain<br />

significantly more than the dancers, marking the difference<br />

between employer and employee. 49<br />

As to degree of skill, this factor also favored employee<br />

status. The defendants claimed that dancers only invested<br />

in their appearances to increase their profits. However, the<br />

court rejected this argument using the decision from Hart;<br />

dancers could be hired without any skill, and pointing to<br />

dancers investing in themselves in order to ?hustle? better<br />

was not considered valid proof of contractor status. 50 Since<br />

prior degree of skill was not a determining factor for<br />

employment in the strip club, the skill and initiative<br />

displayed by the plaintiffs in enhancing their appearances<br />

did not imply that they were in business for themselves.<br />

However, one factor indicated independent contractor<br />

status. Because multiple dancers had worked at other clubs<br />

during their employment at the ?Foxy Lady? and were able<br />

to take extended leaves from working, their employment<br />

was ?temporary and itinerant.? 51 Yet this factor, common<br />

to nearly every other FLSA dancer case, such as Hart,<br />

Pizzarelli, and Binienda, and very common for dancers<br />

overall, was only permitted by the independent contractor<br />

classification that was the root of this case.<br />

The final factor, being an integral part of the business, also<br />

pointed in the direction of employee status. Since the<br />

?Foxy Lady? used photos of dancers on its website, made<br />

money from food and alcohol sales during the dances, and<br />

profited directly from house fees, the presence of dancers<br />

was integral to the success of the strip club. The club<br />

simply could not run without dancers. 52<br />

In consideration of these factors, the court found that<br />

dancers should be classified as employees under the FLSA.<br />

Furthermore, the court found that dancers were employees<br />

under Rhode Island law, since the defendants retained the<br />

right to control entertainers through policies such as drug<br />

testing. The plaintiffs were granted class action<br />

certification under Rule 23 of the Federal Rule of Civil<br />

Procedure and denied summary judgment in favor of the<br />

defendant. 53 The granting of class action certification was<br />

important to the success of the case, as it allowed for<br />

dancers, who individually lost small sums of money, to<br />

exercise collective power. Additionally, the usage of class<br />

48. Ibid., at 12-13.<br />

49. Ibid., at 13-16.<br />

50. Ibid., at 16-17.<br />

51. Ibid., at 17-18.<br />

52. Ibid., at 18-19.<br />

53. Summary judgment is a motion that grants a ruling to a party before a trial happens. For a summary judgment to be granted, the party must show that there is no<br />

dispute as to the fundamental facts of the case and that judgment to the party would be no different if a reasonable jury examined the case.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

action for determining employee status allowed for large<br />

groups of dancers to take action against illegal deductions<br />

from wages and an unjust work environment, while also<br />

discouraging future use of the club?s employment<br />

structure.<br />

Levi v. Gulliver?s Tavern is a direct reflection of Hart v.<br />

Rick?s Cabaret: the application of the five-part FLSA test<br />

was nearly identical in both cases. The uniform<br />

interpretation of federal laws with regards to strippers?<br />

work classification and the universal appreciation of their<br />

work conditions signify precedent for future FLSA rulings.<br />

Pizzarelli v. Cadillac Lounge, L.L.C.<br />

Pizzarelli v. Cadillac Lounge L.L.C., heard before the<br />

United States District Court for the District of Rhode<br />

Island, also addressed the question of misclassification<br />

under the FLSA. Plaintiff Marisa Pizzarelli alleged that the<br />

club Cadillac Lounge misclassified her and other dancers<br />

as independent contractors instead of employees. 54 The<br />

case was similar to Levi, as Pizzarelli was a dancer subject<br />

to similar rules and regulations: she auditioned for the club<br />

and was accepted at the sole discretion of the ?house<br />

mom,? had shifts, and was required to pay house fees.<br />

When applying the six part standard of the FLSA, the court<br />

had identical findings to the Levi case. Although the club<br />

attempted to distinguish itself from other FLSA cases by<br />

claiming that it did not impose strict rules or penalties for<br />

violations, as seen in Hart and Levi, the court held that<br />

there can be other aspects of control that are not financial<br />

penalties. In this case, the mandates required for<br />

performing at the club and its discretion in allowing<br />

dancers to perform were sufficient evidence in favor of<br />

control. 55 The dancers had significantly less financial<br />

investment than the club, had much smaller opportunities<br />

for profit or loss, did not require substantive skill to be<br />

hired, had a non-permanent relationship with the club, and<br />

were integral to the business. The court ruled that the<br />

dancers should be classified as employees under the FLSA<br />

and under Rhode Island law. 56 The court yet again affirmed<br />

what has become almost self apparent; for all intents and<br />

purposes, dancers are full employees and ought to be<br />

treated as such.<br />

Binienda v. Atwells Realty Corp<br />

In the final case, Binienda v. Atwells Realty Corp, the<br />

Rhode Island District Court addressed a similar FLSA<br />

claim against the club ?Club Desire,? in which the<br />

defendants moved to dismiss the claim and compel the<br />

plaintiff to engage in arbitration. 57 Arbitration would have<br />

had the dispute resolved by a judge-approved third party<br />

who would decide the monetary outcome instead of having<br />

the case argued before a judge. However, the movement<br />

for arbitration was over two years after the case was filed.<br />

The question before the court was whether the defendants<br />

had waived their arbitration rights by waiting for that<br />

period. If the court found that the defense waived their<br />

arbitration right, it would allow the case to proceed in<br />

court and address the issue of FLSA designation instead of<br />

becoming an independent settlement.<br />

The court analyzed undue delay and prejudice to the<br />

plaintiff to decide this question. The court found that since<br />

the contract was in the possession of the defendants for the<br />

entire duration of the case, defendants? delay was<br />

excessive. The court also found that the plaintiff would be<br />

prejudiced by compelled arbitration, as she had already<br />

spent two years in litigation. The parties later agreed to an<br />

54. Pizzarelli v. Cadillac Lounge, L.L.C., C.A. <strong>No</strong>. 15-254, 1, 1-2 (D.R.I. 2018).<br />

55. Ibid., at 5-7.<br />

56. Ibid., at 7-18.<br />

57. Binienda v. Atwells Realty Corp., C.A. <strong>No</strong>. 15-253, 1, 1-4 (D.R.I. 2018).<br />

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FLSA settlement, which the court approved. 58 FLSA<br />

settlements, unlike arbitration, are court-approved and<br />

nearly always award the prior wages, while arbitration can<br />

reach a settlement independent of FLSA status and does<br />

not guarantee a full reward of the wages. 59<br />

Each of the Rhode Island cases established valuable legal<br />

protections for exotic dancers. First, dancers are<br />

employees, not contractors, under both the FLSA and<br />

Rhode Island law. Second, even if a club does not impose<br />

fines, other factors of control can indicate an<br />

employer?employee relationship. Third, the motion to<br />

compel arbitration is not absolute, and even if a dancer had<br />

an arbitration agreement, compelling such can be<br />

prejudiced against the dancers. The FLSA effectively<br />

provides a legal remedy for protecting dancers?labor rights<br />

and receiving restitution for lost wages.<br />

Conclusion<br />

In response to the pressing need to ensure safe and<br />

equitable working conditions, the usage of the FLSA to<br />

grant employee status is the most coherent and appropriate<br />

legal mechanism. The hostile work environment, the<br />

sexual nature of the work, the overt use of alcohol, the<br />

covert use of drugs, and the constant efforts from dancers<br />

to protect themselves against patrons makes stripping one<br />

of the most difficult and risky jobs. 60 First Amendment<br />

protections have been unsuccessful in securing dancers?<br />

rights; ensuring a safe work environment for strippers is<br />

made even more difficult by the incidental infringement on<br />

forms of dancing and dancer conduct.<br />

Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

If federal courts have held since 1993 that dancers are<br />

classified as employees under the FLSA, why are dancers<br />

continually required to sign independent contractor<br />

agreements? As stated in Hart, clubs profit by knowingly<br />

taking advantage of dancers, and they hope that the<br />

dancers are not knowledgeable about their legal rights. The<br />

hope of the club owners lies within the demographic of<br />

dancers? many are impoverished, in debt, don?t speak<br />

English, have kids, or are undocumented immigrants, as<br />

clubs require only a driver?s license to be hired. Due to the<br />

repressive nature of club management, many dancers are<br />

afraid to speak out and break unspoken rules. In my<br />

interview with a former dancer in Providence, named<br />

Sarah, she described changes in policy requiring all<br />

dancers to abide by specific attire at her former club? a<br />

move that many feared would jeopardize their income.<br />

?Around 15 percent of girls would quit with every costume<br />

policy change. [The policies] were very restrictive. . . .<br />

These girls moved to different clubs with no restrictions.<br />

. . . Management was very ferocious about not hiring girls<br />

back and spoke very ill of them. . . . They just didn?t care<br />

about the girls.? 61 One can imagine that if the management<br />

was dedicated to not rehiring dancers who left because of<br />

the clothing policy, the repercussions for filing a lawsuit<br />

against the club would be significantly worse for a<br />

dancer?s reputation. Additionally, the New York Times<br />

covered the effect of these lawsuits. One dancer stated that<br />

the management simply ?didn?t change their policies? in<br />

wake of the Hart case.? 62<br />

It is in the best interest of United States society and it is<br />

well within the legal obligation of the federal and state<br />

governments to classify dancers as employees instead of as<br />

58. Ibid., at 11-12.<br />

59. Adam Klein, Mark Humowiecki, and Tarik Ajami, ?Settlements 101: The Fair Labor Standards Act? (Outten & Golden LLP), March 23, <strong>2022</strong>,<br />

https://www.outtengolden.com/sites/default/files/the_fair_labor_standards_act.pdf.<br />

60. Interview with Sarah Doe (2021).<br />

61. Ibid.<br />

62. Valeriya Safronova, ?Strippers Are Doing It for Themselves,? New York Times, July 24, 2019, https://www.nytimes.com/2019/07/24/style/strip-clubs.html.<br />

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Exotic Dancing in Rhode Island and Beyond:<br />

An Analysis of Legal Rights and Protections Under the First Amendment and the Fair Labor Standards Act<br />

independent contractors. <strong>No</strong> workplace should be able to<br />

circumvent federal law by exploiting illegal independent<br />

contractor agreements. The same logic applies to other<br />

jobs: pizza delivery drivers are employees, as they are<br />

integral to the function of the business and the business<br />

controls their delivery arrangements. The spread of the<br />

independent contractor model from the exotic dancing<br />

industry to other businesses would put employees under<br />

the same stressors as dancers. Under the independent<br />

contractor model, dancers only have one guarantee per<br />

shift: they will have to pay house fees. There is no<br />

minimum wage backstop for a slow night, meaning that<br />

dancers can end a night in the negative. Additionally, there<br />

is no valid justification for forcing dancers to tip out the<br />

other workers in the club. Although there is a set minimum<br />

for tip out, typically 20 dollars, many high-performing<br />

dancers will pay more in order to gain favor with the DJ,<br />

who has the sole determination of placing dancers on stage<br />

during peak hours of the night. Classifying dancers as<br />

employees would end these illegal deductions. 63<br />

Furthermore, classifying dancers as employees would<br />

allow them to earn benefits. If a dancer works at a club for<br />

ten years, there is no reason that a bartender working at the<br />

club for the same time duration should be eligible for<br />

benefits but she is not. Despite California v. La Rue<br />

classifying stripping as ?bacchanalian revelries,? stripping<br />

is a legitimate profession and dancers should be afforded<br />

the same rights and protections as any other employee. 64<br />

Providing strippers with the same employee status as the<br />

other workers in the club would allow them to receive<br />

healthcare, a stable guaranteed income, and protection<br />

from arbitrary wage reductions.<br />

63. Ibid.<br />

64. Cal v. La Rue, 409 U.S. at 124 (1972).<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />






Eunice Chong '22<br />


This paper explores refugee claims made on the basis of gender-related persecution. It analyzes two landmark<br />

domestic violence asylum claims filed by Pakistani women in the United Kingdom and Australia. In doing so, it<br />

shows how these two cases loosened the constraints of international refugee law by adopting broad<br />

interpretations of the 1951 Refugee Convention. At the same time, these cases provoked domestic legislation<br />

that aimed to narrow the definition of a refugee, ostensibly to prevent large numbers of refugees from entering<br />

the country. Ultimately, this paper argues that the United Kingdom and Australia cases simultaneously<br />

expanded and contracted the scope of gender-based refugee claims. This paper concludes by offering both legal<br />

and policy solutions to streamline future gender-related refugee cases.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

Introduction<br />

In 2020, women represented half of the world?s 20.7<br />

million refugees. 1 Women and children are often part of<br />

large-scale movements of people fleeing conflict,<br />

persecution, discrimination, disasters, environmental<br />

degradation, and poverty. Women and girls face gendered<br />

risks in migration: the risk of sexual and gender-based<br />

violence is high, as are the risks of psychosocial stress and<br />

trauma, health complications, physical harm, injury, and all<br />

forms of exploitation, including trafficking in human<br />

beings. 2 Migrant women and girls are commonly subjected<br />

to gender-based discrimination.<br />

Women who are able to flee their home country can seek<br />

protection under the 1951 Refugee Convention. The<br />

Convention is a United Nations agreement that sets out the<br />

requirements for refugee status, the rights of asylum<br />

seekers, and the responsibilities of countries that grant<br />

asylum. The 1967 Protocol removed the temporal and<br />

geographic restrictions on the definition of a refugee in the<br />

1951 Convention. Together, the Convention and Protocol<br />

are the sole legally binding international instrument for<br />

providing protections to refugees. 149 countries are parties<br />

to the Convention. Article 1A(2) of the Convention defines<br />

a refugee as a person who<br />

owing to a well-founded fear of being persecuted for<br />

reasons of race, religion, nationality, membership of a<br />

particular social group or political opinion, is outside<br />

the country of his nationality and is unable or, owing<br />

to such fear, is unwilling to avail himself of the<br />

protection of that country. 3<br />

<strong>No</strong>tably, sex and gender are absent from the list of reasons<br />

enumerated by the Convention as grounds for seeking<br />

asylum from persecution. Given the historical context, it is<br />

likely that the drafters of the Convention simply failed to<br />

imagine that a woman would ever become a refugee. The<br />

Convention was drafted and adopted in the aftermath of<br />

the Second World War and at the start of the Cold War.<br />

The image of a ?single, male, political activist fleeing<br />

persecution by the state? informed the drafters?impression<br />

of who might become a refugee. 4<br />

Despite the absence of gender from Article 1A(2), the<br />

position of the United Nations High Commissioner for<br />

Refugees (UNHCR) is that the refugee definition,<br />

?properly interpreted,? covers gender-based claims. 5 As<br />

such, the UNHCR sees no reason to ?add an additional<br />

ground to the 1951 Convention definition.? 6 In practice,<br />

however, the lack of an explicit provision for gender-based<br />

persecution has made it difficult for women to seek asylum<br />

on that ground. Female victims of domestic violence, for<br />

instance, have found limited success in claiming that<br />

violence that occurs within a private home amounts to<br />

persecution when the state offers no protection. Of the five<br />

reasons for persecution included in the Convention, the<br />

?membership of a particular social group? category<br />

appears to be the most suited to women claiming asylum<br />

on gender-based grounds. However, such claims raise<br />

further questions. What defines membership of a particular<br />

social group? Can women in certain societies constitute a<br />

particular social group?<br />

1. UNHCR, ?Figures at a Glance,? UNHCR ? The UN Refugee Agency, June 18, 2021, https://www.unhcr.org/en-us/figures-at-a-glance.html.<br />

2. Committee on the Rights of All Migrant Workers and Members of their Families et al., ?Addressing gender dimensions in large-scale movements of refugees and<br />

migrants,? UN Women, September 19, 2016,<br />

https://www.unwomen.org/en/news/stories/2016/9/statement-addressing-gender-dimensions-in-large-scale-movements-of-refugees-and-migrants.<br />

3. UNHCR, ?Convention and Protocol Relating to the Status of Refugees,? July 28, 1951, 189 UNTS 137:14,<br />

https://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugee.html.<br />

4. <strong>No</strong>ra Honkala, ?Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal and Another, ex parte Shah (1999),? in Women?s Legal<br />

Landmarks: Celebrating the history of women and law in the UK and Ireland, ed. Erika Rackley and Rosemary Auchmuty (London: Bloomsbury Publishing, 2018),<br />

https://centaur.reading.ac.uk/91824/1/16Jul2020Honkala%20WLLP%20Chapter%20.pdf, 2.<br />

5. UNHCR, ?Guidelines on International Protection <strong>No</strong>. 1: ?Gender-Related Persecution?within the context of Article 1A(2) of the 1951 Convention and/or its 1967<br />

Protocol relating to the Status of Refugees,? HCR/GIP/02/01 (May 7, 2002),<br />

https://www.unhcr.org/en-us/publications/legal/3d58ddef4/guidelines-international-protection-1-gender-related-persecution-context.html, 3, para. 6.<br />

6. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


This paper argues that two landmark domestic violence<br />

refugee cases in the United Kingdom and Australia<br />

simultaneously expanded and contracted the scope of<br />

gender-based refugee claims. It begins by exploring<br />

competing interpretations of ?particular social group?<br />

within the meaning of the Convention. It then analyzes the<br />

two gender-based asylum claims made by Pakistani<br />

women in the United Kingdom and Australia. In doing so,<br />

it shows how these two cases loosened the constraints of<br />

international refugee law by adopting broad interpretations<br />

of ?particular social group? and ?persecution.? At the same<br />

time, these cases provoked domestic legislation that aimed<br />

to narrow the definition of a refugee, ostensibly to prevent<br />

large numbers of refugees from entering the country. This<br />

paper concludes by offering both legal and policy solutions<br />

to streamline future gender-related refugee cases.<br />

Approaches to Interpreting ?Particular Social Group?<br />

According to Article 1A(2) of the Convention, an asylum<br />

seeker must prove the following in order to qualify as a<br />

refugee:<br />

Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

(1) That she has a well-founded fear of persecution. (2)<br />

That the persecution would be for reasons of race,<br />

religion, nationality, membership of a particular social<br />

group, or political opinion. (3) That she is outside the<br />

country of her nationality. (4) That she is unable, or<br />

owing to fear, unwilling to avail herself of the<br />

protection of that country. 7<br />

The third and fourth conditions are straightforward. The<br />

physical location of the asylum seeker is unambiguous.<br />

The seeking of asylum itself normally indicates an<br />

inability or unwillingness to avail oneself of the protection<br />

of one?s country of nationality. The first condition may be<br />

more complicated when one or more of the agents of<br />

persecution is a non-state actor, but it is for the most part<br />

an issue of fact. The principal difficulty lies in proving that<br />

the persecution would be for one of the five reasons listed<br />

in the Convention. In particular, how is the condition of<br />

?membership of a particular social group? satisfied as a<br />

matter of law?<br />

The travaux préparatoires for the Convention? the official<br />

records of the negotiations? are notably unhelpful in<br />

determining the intent of the drafters. They mention only<br />

that the phrase ?membership of a particular social group?<br />

was added at the last minute by the Swedish delegate, who<br />

said that ?experience had shown that certain refugees had<br />

been persecuted because they belonged to particular social<br />

groups.? 8 The UNHCR?s Handbook is similarly vague,<br />

reading: ?A ?particular social group? normally comprises<br />

persons of similar background, habits or social status.? 9<br />

There exists, however, a wealth of case law discussing the<br />

social group category. While U.S. courts rarely cite foreign<br />

law, the courts in Australia, Canada, New Zealand, and the<br />

United Kingdom tend to read and cite cases decided in<br />

other common law states. Thus, the competing approaches<br />

to interpreting ?particular social group? outlined in two<br />

U.S. cases from the 1980s are relevant to gender-related<br />

refugee claims across all common law jurisdictions.<br />

In Matter of Acosta, the Board of Immigration Appeals<br />

established immutability as the foundational requirement<br />

of a particular social group. 10 In this 1985 case, a group of<br />

Salvadoran taxi drivers claimed asylum under the 1951<br />

Refugee Convention on the basis that they feared<br />

persecution from an organized group of taxi drivers in El<br />

Salvador. Their claim was dismissed on the ground that the<br />

Salvadoran taxi drivers did not constitute a particular<br />

social group. The board reached its decision using the<br />

doctrine of ejusdem generis, which holds that ?general<br />

words used in enumeration with specific words should be<br />

construed in a manner consistent with the specific<br />

7. Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal Tribunal and Another Ex Parte Shah (A.P.) (Conjoined Appeals) [1999] 2<br />

AC 629 (HL), [4].<br />

8. Islam and Shah 2 AC 629, [15].<br />

9. UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 2019), 24, para. 77.<br />

10. Matter of Acosta 19 I. & N. Dec. 211 (BIA 1985).<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

words.? 11 In Article 1A(2) of the Convention, race,<br />

religion, nationality, and political opinion all describe a<br />

words, fear of persecution cannot be the only thing that<br />

unites members of the group. To argue otherwise would<br />

shared, immutable characteristic. 12 Ejusdem generis render the social group category meaningless. 17 It is<br />

dictates that membership of a particular social group<br />

would have to similarly depend on an immutable<br />

characteristic such as sex. The board accordingly restricted<br />

refuge ?to individuals who are either unable by their own<br />

actions, or as a matter of conscience should not be<br />

required, to avoid persecution.? 13 Since taxi driving is a<br />

profession rather than an immutable trait, the Salvadoran<br />

taxi drivers were denied asylum. Immutability alone was<br />

the decisive factor in determining whether a group of<br />

people constituted a particular social group.<br />

against this backdrop of competing legal standards? in<br />

particular, the weighing of immutability, cohesion, and<br />

independence of persecution? that two landmark domestic<br />

violence asylum cases came before the supreme courts in<br />

the United Kingdom and Australia.<br />

Two Landmark Domestic Violence Asylum Cases<br />

The centrality of the term ?particular social group? to<br />

gender-related refugee claims is apparent in two landmark<br />

domestic violence asylum cases. In the United Kingdom,<br />

the House of Lords?judgment in Islam (A.P.) v. Secretary<br />

Conversely, the Ninth Circuit Court of Appeals considered<br />

of State for the Home Department and Regina v.<br />

additional requirements in determining the existence of a<br />

Immigration Appeal Tribunal and Another Ex Parte Shah<br />

particular social group in Sanchez-Trujillo v. Immigration<br />

(A.P.) (Conjoined Appeals) marked a significant turning<br />

and Naturalization Service. 14 In this 1986 case, a group of<br />

point in the case law. It established that gender in itself<br />

young, working-class Salvadoran men who had not<br />

could define a particular social group within the meaning<br />

enlisted in the Salvadoran military claimed asylum. They<br />

of the Convention. The High Court of Australia drew<br />

argued that they would be persecuted if they were returned<br />

heavily on the House of Lords?reasoning in Minister for<br />

to El Salvador. The Ninth Circuit rejected their claim on<br />

Immigration and Multicultural Affairs v. Khawar. The<br />

several grounds, including for failure to meet the definition<br />

High Court established that a woman fleeing domestic<br />

of a particular social group, which it interpreted as a<br />

violence might be entitled to asylum if she could<br />

?homogeneous and cohesive group.? 15 The Ninth Circuit?s<br />

demonstrate adequate absence of state protection.<br />

insistence on cohesion being a necessary component<br />

Together, the two cases expanded the definitions of<br />

narrowed the definition of a particular social group<br />

?particular state group? and ?persecution,? thus expanding<br />

considerably.<br />

the definition of a refugee. Both the United Kingdom and<br />

The competing standards set forth in Acosta and<br />

Sanchez-Trujillo reflect the lack of international legal<br />

consensus around the definition of a particular social<br />

group. The rare common principle that has emerged is the<br />

idea that there can only be a particular social group if that<br />

group exists independently of persecution. 16 In other<br />

Australia are parties to the 1951 Refugee Convention.<br />

United Kingdom: Islam and Shah (1999)<br />

Islam and Shah concerned two Pakistani women who were<br />

subjected to serious domestic abuse and were forced to<br />

leave their homes. They claimed refugee status in the<br />

11. Islam and Shah 2 AC 629, [6].<br />

12. Ibid., 7.<br />

13. Ibid.<br />

14. Sanchez-Trujillo v. Immigration and Naturalization Service 801 F.2d 1571 (9th Cir. 1986).<br />

15. Islam and Shah 2 AC 629, [6].<br />

16. Ibid., 5-6.<br />

17. Islam and Shah 2 AC 629, [6].<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

United Kingdom under Article 1A(2) of the Convention, claimed the right to remain as refugees. The United<br />

on the ground that they had a well-founded fear of being Kingdom incorporated the Convention into domestic law<br />

persecuted for the reason of ?membership of a particular in section 8 of the Asylum and Immigration Appeals Act<br />

social group.? 18 The House of Lords took up the question 1993. Section 8(2) of the Act provides that a person with<br />

of whether the appellants were members of a particular temporary status ?may appeal to a special adjudicator,? as<br />

social group within the meaning of the Convention. to do otherwise ?would be contrary to the United<br />

Kingdom?s obligations under the Convention.?<br />

Shahanna Islam lived in Pakistan with her two children<br />

23<br />

and her husband, who was often violent towards her. 19 Accordingly, both women appealed to the special<br />

In<br />

adjudicator. In both cases, the special adjudicator found<br />

1990, she intervened in a fight between young supporters<br />

that the women had a well-founded fear of persecution in<br />

of two rival political factions that broke out at the school<br />

Pakistan but did not fall within the category of a particular<br />

where she taught. Her husband was a member of one of the<br />

social group.<br />

factions. In retaliation for her intervention, supporters of<br />

24 Upon unsuccessful appeals to the<br />

Immigration Appeal Tribunal, the women appealed to the<br />

that same faction made allegations of adultery against her<br />

Court of Appeal, which heard the two cases together.<br />

to her husband. Islam?s husband punished her with severe<br />

beatings, which resulted in her hospitalization on two The Court of Appeal dismissed both appeals. The decision<br />

occasions and eventually forced her to flee her home. 20 turned on whether the appellants satisfied the requirements<br />

Islam and her children entered the United Kingdom in for membership of a particular social group under Article<br />

1991 and applied for asylum in the same year.<br />

1A(2). The Court of Appeal held that certain necessary<br />

characteristics were lacking: namely, the existence of a<br />

Syeda Shah was pregnant when she was banished from her<br />

?common uniting attribute? independent of the feared<br />

home in Pakistan by her husband, who frequently beat<br />

her. 21 persecution.<br />

She arrived in the United Kingdom in 1992 and gave<br />

25 However, the three-judge panel was divided<br />

over the necessity of cohesion. Lord Justice Staughton,<br />

birth to a child shortly thereafter. Fearing that her husband<br />

drawing explicitly on the standard adopted by the U.S.<br />

would deny paternity and accuse her of adultery if she<br />

Court of Appeals for the Ninth Circuit in Sanchez-Trujillo,<br />

returned to Pakistan, Shah applied for asylum the<br />

wrote that the appellants had not proved that they were<br />

following year. Both women contended that Pakistan<br />

?joined together with some degree of cohesiveness,<br />

offered them no protection from domestic violence and<br />

co-operation and interdependence.?<br />

would likely charge them with adultery. In the event of a<br />

26 Lord Justice Henry<br />

countered that cohesion was not ?necessary in every case,?<br />

forced return, they would be subject to risk of flogging or<br />

stoning to death as punishment for sexual immorality. 22 as in cases ?where the particular social group is recognized<br />

as such by the public, though is not organized.? 27 Islam<br />

Islam and Shah entered the United Kingdom as visitors but<br />

and Shah then appealed to the House of Lords, which<br />

18. ?Convention Relating to the Status of Refugees,? July 28, 1951, 189 UNTS 137: 14.<br />

19. Islam and Shah 2 AC 629, [3].<br />

20. Ibid.<br />

21. Ibid., 12.<br />

22. Ibid., 1.<br />

23. Ibid.<br />

24. Ibid., 3.<br />

25. Ibid., 4.<br />

26. Ibid.<br />

27. Ibid.<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

functioned as the United Kingdom?s supreme court until women could constitute a particular social group within<br />

2009.<br />

the meaning of the Convention. It paved the way for<br />

women to claim asylum based on gender-related<br />

The House of Lords held that Islam and Shah qualified as<br />

persecution, as in the case of Minister for Immigration and<br />

refugees. The Lords?decision overturned the decision of<br />

Multicultural Affairs v. Khawar.<br />

the Court of Appeals. The case of Islam and Shah<br />

facilitated future gender-related refugee claims by adopting Australia: Khawar (2002)<br />

a broad interpretation of the words ?particular social<br />

Minister for Immigration and Multicultural Affairs v.<br />

group.? Lord Steyn, in his decision, wrote that existing<br />

Khawar concerned another Pakistani woman who was<br />

case law did not show that cohesion was an indispensable<br />

subjected to serious domestic abuse and was forced to<br />

requirement. 28 He reasoned that introducing an additional<br />

leave her home. She applied for a protection visa in<br />

restriction of cohesion ran counter to the ejusdem generis<br />

Australia on the ground that she had a well-founded fear of<br />

approach used in Acosta. 29<br />

persecution under Article 1A(2) of the Convention, due to<br />

The Lords held that ?women in Pakistan? constituted a her status as a woman in Pakistan. The High Court of<br />

particular social group. <strong>No</strong>tably, the Lords went even Australia took up the question of whether the failure of a<br />

further in expanding the scope of ?particular social group? state to protect women from domestic violence? an<br />

than had the counsel for the appellants. Counsel had ostensibly private form of persecution? amounted to<br />

argued that the appellants were a particular social group persecution within the meaning of the Convention.<br />

only by reason of three characteristics that set them apart<br />

Naima Khawar and her three children arrived in Australia<br />

from the rest of society: gender, the suspicion of adultery,<br />

in 1997 and applied for protection visas in that same year.<br />

and their unprotected status in Pakistan. 30 Lord Steyn<br />

Australia incorporated the Convention into domestic law<br />

endorsed a more expansive definition in writing that<br />

through Migration Act 1958, which provides that<br />

Pakistani women were members of a particular social<br />

non-citizens can apply for protection visas under the<br />

group because the state discriminated against women as a<br />

reasons enumerated in the Convention. 33 The applications<br />

group. 31 Lord Hoffmann added that what made domestic<br />

for protection visas were refused. Khawar appealed to the<br />

abuse persecution in Pakistan was the fact that the state<br />

Refugee <strong>Review</strong> Tribunal, which affirmed the prior<br />

sanctions and tolerates discrimination against women,<br />

decision. Before the Tribunal, Khawar alleged that she had<br />

including by deeming the evidence of men more credible<br />

gone to the Pakistani police on four occasions to complain<br />

than the evidence of women. 32 Therefore, the Lords found<br />

of the violence she was suffering at the hands of her<br />

that Islam and Shah were persecuted by reason of<br />

husband. 34 On each occasion, she alleged, the police were<br />

membership of a particular social group and qualified for<br />

indifferent and refused to help her.<br />

refugee status.<br />

The Tribunal rejected the premise that the alleged domestic<br />

Islam and Shah was groundbreaking in establishing that<br />

abuse amounted to persecution within the meaning of the<br />

28. Ibid., 9.<br />

29. Ibid., 8.<br />

30. Ibid., 9.<br />

31. Ibid.<br />

32. Ibid., 13.<br />

33. Minister for Immigration and Multicultural Affairs v. Khawar [2002] 210 CLR 1 (HCA), para. 1.<br />

34. Ibid., para. 10.<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

convention, because the agents of persecution were non-state agents and even to state inaction. 38 The court<br />

motivated by personal reasons rather than by Khawar?s noted that ?whether failure to act amounts to conduct often<br />

membership in any particular social group. Namely, the depends upon whether there is a duty to act.? 39 In this case,<br />

Tribunal reasoned, Khawar?s husband and his family since Khawar was a Pakistani citizen, the failure of the<br />

abused her because she brought no dowry to the family police to protect her from domestic violence constituted a<br />

and because of their own personal dislike of her. 35 They serious neglect of duty on the part of the state. If Khawar<br />

did not abuse her because she was a woman in Pakistan, could present evidence before the Tribunal that domestic<br />

according to the Tribunal. The Tribunal determined that violence was not only overlooked by the state but<br />

the attitude of the Pakistani police was irrelevant insofar as condoned, as an aspect of systematic discrimination<br />

it did nothing to convert private harm ?for reasons having against women in Pakistan, then state inaction would even<br />

nothing to do with any of the grounds set out in Article more closely resemble conduct. 40 The court believed that<br />

1A(2) into persecution for one of the reasons stated.? 36 such a presentation was possible, in light of the evidence<br />

presented in Islam and Shah concerning the position of<br />

Khawar appealed to the Federal Court of Australia, which<br />

women in Pakistani society.<br />

ruled that the Tribunal had erred in law and referred the<br />

41 Chief Justice Gleeson noted<br />

that the Tribunal?s original decision was given before the<br />

case back to the Tribunal. The Minister for Immigration<br />

House of Lords decided Islam and Shah.<br />

and Multicultural Affairs appealed to the Full Court of the<br />

42<br />

Federal Court, which dismissed the appeal. The Minister Given the court?s expanded interpretation of persecution,<br />

then appealed to the High Court of Australia, which serves Chief Justice Gleeson concluded that the failure of the<br />

as Australia?s supreme court. The High Court held that the state to act was not only relevant but essential to the case.<br />

decision of the Federal Court was correct. The appeal was The absence of state protection was the ?bridge? that<br />

dismissed and the case was referred back to the Tribunal. turned private harm into public persecution. 43<br />

The High Court refuted the Tribunal?s argument that<br />

Khawar was not persecuted within the meaning of Article<br />

1A(2). Chief Justice Gleeson accepted that ?the paradigm<br />

case of persecution contemplated by the Convention is<br />

persecution by the state itself.? 37 The chief justice noted,<br />

however, that Article 1A(2) refers not to a ?persecutor? but<br />

to ?persecution.? Given that formulation, the court<br />

reasoned that persecution denoted more than just state<br />

action: it could refer to the combined conduct of state and<br />

In Islam and Shah, the House of Lords recognized that<br />

domestic violence did not occur in a vacuum. Rather,<br />

domestic violence by non-state agents constituted<br />

persecution because it occurred in a society that<br />

systematically discriminated against and refused to protect<br />

women as a group. Similarly, Khawar?s husband and his<br />

family did not abuse her merely because they disliked her.<br />

They abused her because she was a woman in<br />

Pakistan? because they knew that the state would not<br />

35. Ibid., para. 10.<br />

36. Ibid., para. 13.<br />

37. Ibid.<br />

38. Ibid., 6, para. 22.<br />

39. Ibid., 7, para. 27.<br />

40. Ibid., para. 25-26.<br />

41. Ibid., para. 25.<br />

42. Ibid., 3, para. 13.<br />

43. Ibid., 5, para. 19.<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

protect her. Therefore, the High Court held that as a matter Shah in many common law jurisdictions, including in New<br />

of law, it was entirely plausible that Khawar was Zealand. 44 Since Islam and Shah, women fleeing domestic<br />

persecuted by reason of membership of a particular social violence from Afghanistan, Albania, China, Ethiopia, Iran,<br />

group. The facts? that is, the veracity of Khawar?s Kenya, Moldova, Sierra Leone, Somalia, and Ukraine have<br />

allegations of domestic abuse? were left to the Tribunal to successfully claimed refugee status on the basis of<br />

determine.<br />

state-sanctioned discrimination and subsequent lack of<br />

state protection in their countries of origin.<br />

The High Court?s decision in Khawar echoed Islam and<br />

45 Baroness<br />

Hale, who served as President of the Supreme Court of the<br />

Shah by expanding the scope of the word ?persecution? in<br />

United Kingdom until 2020, observed that ?the world has<br />

Article 1A(2) to include non-state agents. It facilitated<br />

woken up to the fact that women as a sex may be<br />

future gender-related refugee claims by demonstrating how<br />

persecuted . . . because of the inferior status accorded to<br />

the absence of state protection can turn domestic violence<br />

their gender in their home society.?<br />

into a matter of international concern.<br />

46<br />

On the other hand, cases such as Islam and Shah and<br />

Legal and Political Impacts of Islam and Shah and<br />

Khawar have provoked domestic legislation narrowing the<br />

Khawar<br />

definition of a refugee. The tension between judicial<br />

Cases like Islam and Shah and Khawar have had divergent<br />

expansion and legislative contraction can be attributed to<br />

impacts on law and public policy. On the one hand, these<br />

states? discomfort with giving up any aspect of their<br />

decisions have facilitated gender-related refugee claims by<br />

sovereignty. In a concurring opinion in Khawar, Justices<br />

expanding the accepted definitions of ?particular social<br />

McHugh and Gummow noted that ?states the world over<br />

group? and ?persecution? in law. The House of Lords<br />

consistently have exhibited great reluctance to give up<br />

endorsed a broad interpretation of ?particular social group?<br />

their sovereign right to decide which persons will, and<br />

by discarding the cohesion requirement introduced in<br />

which will not, be admitted to their territory, and given a<br />

Sanchz-Trujillo and positing that state-sanctioned and<br />

right to settle there.? 47<br />

state-tolerated discrimination was a relevant factor. The<br />

Such reluctance is evidenced by the fact that Islam and<br />

High Court of Australia demonstrated how private harm by<br />

Shah was the first case on whether women constituted a<br />

non-state agents can constitute persecution under the<br />

particular social group to ever reach the House of Lords.<br />

Convention when coupled with the absence of state<br />

48<br />

This was no accident. The Home Office? the department<br />

protection. In doing so, these courts created more avenues<br />

responsible for immigration, security, and law and order in<br />

for women to claim that they were persecuted due to<br />

the United Kingdom? had pursued a strategy of deterring<br />

membership of a particular social group. The existence of<br />

such claims by offering some women ?exceptional leave to<br />

these avenues, in turn, has made it easier for women to<br />

remain,? which would allow them to stay in the country<br />

satisfy the four conditions of refugee status set out in<br />

but would deny them refugee status.<br />

Article 1A(2) of the Convention.<br />

49 The Refugee<br />

Women?s Legal Group in the United Kingdom worked<br />

Courts have followed and further developed Islam and<br />

hard to get a case heard, resulting in the case of Islam<br />

44. Honkala, ?Islam v Secretary of State,? 6.<br />

45. <strong>No</strong>ra Webber, ??As a woman I have no country?: the denial of asylum to women fleeing gender-related persecution,? Women for Refugee Women, (n.d.),<br />

https://www.refugeewomen.co.uk/wp-content/uploads/2019/01/women-for-refugee-women-the-denial-of-asylum-to-women-fleeing-gender-related-persecution.pdf, 5.<br />

46. Ibid., 12.<br />

47. MIMA v Khawar 210 CLR 1, para. 44.<br />

48. Honkala, ?Islam v Secretary of State,? 4.<br />

49. Ibid.<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

and Shah. 50<br />

The political response to Khawar in Australia was even<br />

more inhospitable towards refugees. Philip Ruddock, the<br />

state protection? would be much more likely to fail after<br />

the implementation of Bill <strong>No</strong>. 6. 55<br />

The legislative response to Khawar indicated hostility<br />

Minister for Immigration and Multicultural Affairs, raised towards refugees in general. In the Explanatory<br />

Khawar?s appeal to the Federal Court during discussion in<br />

Parliament. Ruddock cited Khawar as a reason for<br />

narrowing the definition of a refugee, claiming that<br />

Australian courts and tribunals had been interpreting the<br />

Convention definition too broadly. 51 As a result, Migration<br />

Amendment Bill (<strong>No</strong> 6) 2001 was introduced to amend the<br />

Migration Act 1958 and, in doing so, ?restore the<br />

application of the Convention . . . in Australia to its proper<br />

interpretation.? 52 Bill <strong>No</strong>. 6 was passed on September 26,<br />

2001.<br />

Bill <strong>No</strong>. 6 was clearly intended to prevent asylum seekers<br />

like Khawar from attaining protection visas in the future.<br />

In a direct response to Khawar, the bill narrowed the<br />

definition of ?persecution? in the Migration Act. The new<br />

section states that refugee status can only be granted if the<br />

Convention reason is the ?essential and significant reason<br />

for the persecution,? if the persecution involves ?serious<br />

harm,? and if the persecution involves ?systematic and<br />

discriminatory conduct.? 53 In the High Court?s judgment<br />

Memorandum corresponding to Bill <strong>No</strong>. 6, Ruddock wrote<br />

that a second purpose of the bill was to prevent asylum<br />

seekers from abusing Australia?s immigration processes. 56<br />

Subsequent media attention involved much vilification of<br />

refugees, calling to mind the language of ?floodgates? so<br />

often employed by Western media outlets. 57 58 The<br />

behavior of the Home Office in the United Kingdom and<br />

members of the House of Representatives in Australia<br />

shows how states? international asylum obligations are<br />

often hindered by a political preoccupation with<br />

immigration control.<br />

Islam and Shah and Khawar inspired opposing legal and<br />

political impacts. In the legal arena, these cases interpreted<br />

the Convention?s refugee definition broadly and thus<br />

facilitated future gender-related asylum claims. In the<br />

political arena, these cases collided with states?instinct to<br />

pursue strict border strategies and, in the case of Australia,<br />

resulted in legislation that narrowed the refugee definition<br />

once again.<br />

on Khawar, a concurring opinion noted that the case was<br />

Removing Barriers to Future Gender-based Refugee<br />

decided with reference to the Migration Act 1958 as it<br />

Claims<br />

stood before it was amended by Bill <strong>No</strong>. 6. 54 Scholars have<br />

observed that a claim of persecution like Khawar?s? one<br />

based on a combination of domestic violence and lack of<br />

As a legal solution, there is evidence of unexplored<br />

potential with regard to the other four grounds for<br />

50. Ibid.<br />

51. Catherine Hunter, ?Khawar and Migration Legislation Amendment Bill (<strong>No</strong> 6) 2001: Why narrowing the definition of a refugee discriminates against<br />

gender-related claims,? Australian Journal of Human Rights 8, no. 1, (2002): 107, https://doi.org/10.1080/1323238X.2002.11911076.<br />

52. Ibid.<br />

53. Ibid., 111.<br />

54. MIMA v Khawar 210 CLR 1, para. 38.<br />

55. Hunter, ?Khawar and Migration Legislation Amendment,? 119.<br />

56. Ibid., 110.<br />

57. Ibid., 120.<br />

58. Arwa Damon and Murat Baykara, ?Greece stands firm on migrants, as Turkey opens floodgates to Europe,? CNN, March 1, 2020,<br />

https://www.cnn.com/2020/03/01/europe/turkey-greece-migrants-open-border-intl/index.html.<br />

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Judicial Expansion and Legislative Contraction: An Analysis of Two Landmark Domestic Violence Asylum Cases<br />

persecution enumerated in the Convention. The particular a victim of gender-based violence can claim refugee status<br />

social group ground may have seemed the most suited to is necessary to ensure that countries are meeting their<br />

gender-based claims due to its relative breadth. However, asylum obligations as signatories to the Convention.<br />

scholars such as Siobhán Mullally have argued that the<br />

Conclusion<br />

other four Convention grounds? race, religion, nationality,<br />

and political opinion? may have been overlooked. 59 In<br />

This paper has argued that two landmark domestic<br />

Islam and Shah, the House of Lords dismissed Islam?s<br />

violence asylum cases, Islam and Shah and Khawar, have<br />

claim that she was persecuted in part for reasons of<br />

both expanded and contracted the scope of gender-related<br />

political opinion as ?unsustainable,? despite finding<br />

refugee claims. It has shown how these cases created new<br />

evidence of institutionalized gender-based discrimination<br />

legal pathways for gender-based asylum claims by<br />

in Pakistan. 60 A 2000 decision before the Refugee Status<br />

adopting broad interpretations of the terms ?particular<br />

Appeals Authority in New Zealand reached the opposite<br />

social group? and ?persecution? in Article 1A(2) of the<br />

conclusion. 61 In that case, the Appeals Authority found that<br />

1951 Refugee Convention. It has also shown, however,<br />

the Iranian asylum applicant did not suffer violence at the<br />

how these cases provoked new legislation in receiving<br />

hands of her husband for reasons of political opinion. It did<br />

countries that attempted to narrow those same legal<br />

find that the failure of the state to protect her was due in<br />

pathways to asylum.<br />

part to political opinion. It granted her refugee status on What can international refugee law do for women? As<br />

that basis. The New Zealand case and others show that Chief Justice Gleeson noted in Khawar, it is a widely<br />

claiming persecution on other Convention grounds, accepted fact that ?international refugee law was meant to<br />

perhaps in combination with membership of a particular serve as a substitute for national protection where such<br />

social group, can be advantageous to asylum applicants. protection was not provided? for discriminatory reasons. 64<br />

The more sustainable change, however, would involve Women fleeing domestic violence from which there is no<br />

standardizing policy processes that deal with gender-based state protection fall directly into this category. And yet,<br />

asylum each country. It would be politically unrealistic to lack of consistency across judicial and legislative<br />

assume that the 1951 Refugee Convention could be processes in countries that receive high numbers of<br />

amended to include explicit protections for refugees on the refugees has created many difficulties for victims of<br />

basis of gender. 62 However, countries such as Canada and gender-based violence in attaining refugee status. In the<br />

Sweden have set clear paths to asylum for victims of future, legislation that standardizes processes in dealing<br />

gender-based violence by way of codified rules. Other with gender-based refugee claims is necessary to ensure<br />

countries ought to follow suit. The dangers of not doing so that states are meeting their obligations under international<br />

are evident in the United States, where an egregiously high refugee law.<br />

standard of suffering is required to prove persecution. 63<br />

Legislation that explicitly sets out the criteria under which<br />

59. Siobhán, Mullally, ?Domestic Violence Asylum Claims and Recent Developments in International Human Rights <strong>Law</strong>: A Progress Narrative?,? The International<br />

and Comparative <strong>Law</strong> Quarterly 60(2): 483, https://www.jstor.org/stable/23017008.<br />

60. Islam and Shah 2 AC 629, [3].<br />

61. Refugee Appeal <strong>No</strong>. 71427/99 [2000] NZAR 545 (RSAA).<br />

62. Honkala, ?Islam v Secretary of State,? 3.<br />

63. Mullally, ?Domestic Violence Asylum Claims,? 480.<br />

64. MIMA v Khawar 210 CLR 1, para. 20.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />








Emma Blake '22<br />


The signing of Texas? Senate Bill 8 (S.B.8) into law in July 2021 sparked outrage? not only because the<br />

Statute?s ban on abortions after the detection of a fetal heartbeat severely impedes a woman?s bodily autonomy,<br />

but also because its outsourcing of enforcement to private citizens circumvents constitutional protections. In<br />

Whole Woman?s Health v. Jackson, plaintiffs sought to enjoin enforcement of S.B.8, otherwise known as the<br />

Fetal Heartbeat Statute, by suing Texas judges and other state officials. However, such a strategy invoked a host<br />

of procedural issues relating to who has standing to challenge the law and whether a lawsuit against Federal<br />

courts can be considered permissible under Supreme Court precedent. Recognizing the urgent need to strike<br />

down S.B.8, this review unravels these procedural dilemmas. Specifically, this paper explains the issues<br />

presented by S.B.8 and by Whole Woman?s Health and analyzes the Supreme Court?s recent ruling in order to<br />

rethink a path forward in which abortion rights are protected and upheld.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward<br />

Introduction<br />

When signed into law in July 2021, Texas?s Senate Bill 8<br />

(S.B.8) outlawed performing an abortion, as well as aiding<br />

or abetting in the performance of an abortion, upon the<br />

detection of a fetal heartbeat. 1 Such a detection usually<br />

occurs six weeks into pregnancy? before many women<br />

even know they are pregnant. This legislation thus actively<br />

counters Supreme Court precedent, which protects a<br />

woman?s right to an abortion well beyond six weeks. 2<br />

S.B.8 is not only unprecedented for placing such a severe<br />

restriction on a woman?s right to choose. In fact, S.B.8<br />

radically expands the concept of standing. The law entrusts<br />

private citizens with the exclusive right to enforcement,<br />

lending anyone ?other than an officer or employee of a<br />

state or local government entity? the right to bring civil<br />

action against any person who violates it. 3 In the absence<br />

of this provision, S.B.8 would be patently unconstitutional.<br />

The fact that the statute can only be enforced by private<br />

citizens removes the state action necessary to implicate<br />

constitutional rights.<br />

Unsurprisingly, S.B.8 has been met with outrage by<br />

abortion providers and patient advocates, with two<br />

lawsuits attempting to challenge it. United States v. Texas<br />

involves a suit in which the U.S. Department of Justice<br />

asked the Supreme Court to reinstate a district court<br />

judgment that temporarily enjoined the enforcement of<br />

S.B.8 pending final determination of the statute?s<br />

constitutionality. 4 The central question of this case asks<br />

whether S.B.8 is constitutional. Specifically, it examines<br />

the statute?s constitutionality under the Supremacy Clause<br />

and principles of federalism. 5 The second key lawsuit that<br />

challenges S.B.8 is Whole Woman?s Health v. Jackson; this<br />

paper will focus on this case. In Whole Woman?s Health, a<br />

group of abortion providers and patient advocates filed an<br />

emergency appeal seeking to block enforcement of S.B.8,<br />

arguing that the statute delegates enforcement of the law to<br />

circumvent constitutional protections. 6 The key question of<br />

this case thus revolves around whether a state can insulate<br />

from federal court review a law that prohibits the exercise<br />

of a constitutional right by outsourcing enforcement to the<br />

public.<br />

<strong>No</strong>tably, Whole Woman?s Health filed this suit against<br />

state judges, state clerks, state agency heads, and one<br />

private citizen. 7 The naming of these defendants has<br />

presented plaintiffs with a series of procedural dilemmas.<br />

Central is the issue of whether it is permissible to sue state<br />

judges in federal court. This issue may trigger the downfall<br />

of the petitioners? case and thus permit the continued<br />

violation of women?s rights to privacy and bodily<br />

autonomy.<br />

S.B.8 not only endangers abortion rights but poses a<br />

tremendous threat to civil rights more generally. In fact,<br />

the same approach upon which S.B.8 relies to circumvent<br />

constitutional protections could be used to interfere with<br />

any constitutional right. It seems unfathomable that a law<br />

that so intentionally circumvents protections be considered<br />

a permissible approach to civil rights. However, as Whole<br />

Woman?s Health has made clear, there exist several<br />

procedural problems relating to how this law can be most<br />

appropriately and effectively challenged in court. As such,<br />

1. S.B.8. § 171.203(a).<br />

2. Roe v. Wade, 410 U.S. 113 (1973).<br />

3. S.B.8. § 171.203(a).<br />

4. United States v. Texas, 595 U.S.___ (2021).<br />

5. Ibid.<br />

6. Whole Woman?s Health v. Jackson, 595 U.S.___ (2021).<br />

7. Ibid.<br />

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though there may be a consensus that S.B.8?s outsourced<br />

enforcement provision poses an unacceptable threat to civil<br />

and constitutional rights, unwinding this procedural knot is<br />

critical to protecting abortion rights moving forward.<br />

This paper explains these procedural problems and<br />

investigates how they might best be tackled. First, I dive<br />

more deeply into the underlying context and specifics of<br />

the Texas Fetal Heartbeat Statute. Second, I outline the<br />

legal issues posed by S.B.8. Third, I introduce Whole<br />

Woman?s Health v. Jackson and deconstruct the legal issues<br />

plaguing the case. Fourth, I outline the rationale behind<br />

and implications of the Supreme Court?s ruling in Whole<br />

Woman?s Health.<br />

S.B.8: Context and Impact<br />

Texas has long been home to restrictive abortion laws,<br />

even after the Supreme Court decision in Roe v. Wade<br />

(1973), which upheld a woman?s right to abortion. 8 In<br />

2003, Texas implemented the ?Women?s Right to Know<br />

Act.? 9 This act forced doctors to impart misleading<br />

information about the procedure to women seeking<br />

abortions and required that abortions be performed at a<br />

surgical center? a standard met only by hospital-based<br />

abortion providers in the state. 10 Similarly restrictive<br />

measures were established in 2005, 2011, 2013, and almost<br />

every year from 2015 to 2021. Some of the most notable<br />

include the state?s 2017 ban on the safest procedure for<br />

second-trimester abortions, and its 2019 Senate Bill 22,<br />

which inhibits government entities from partnering with<br />

abortion clinics, thereby cutting off ?vital support to<br />

communities who rely on these low-cost clinics for basic<br />

health care.? 11<br />

S.B.8 builds on this restrictive regulatory history. Its<br />

provisions that inhibit an abortion upon detection of a fetal<br />

heartbeat effectively impede a woman?s ability to have an<br />

abortion altogether. 12 S.B.8 also makes no exception in<br />

cases of rape or incest, an exception that is widely<br />

supported and upheld across the United States. 13 Where<br />

this law departs from this past even more dramatically,<br />

however, lies in its delegation of enforcement to private<br />

citizens. The fact that S.B.8 allows anyone ?other than an<br />

officer or employee of a state or local government entity?<br />

the right to bring a civil action is unprecedented not only in<br />

abortion legislation, but in civil rights legislation<br />

generally. 14 Such a provision prevents women from<br />

asserting their constitutional rights and challenging the<br />

law. Furthermore, S.B.8?s reward of no less than $10,000<br />

to whoever brings such a suit is a concerning incentive. 15<br />

<strong>No</strong>t only could it encourage anyone from an abusive<br />

partner to a pro-life advocate to sue someone they have<br />

little connection to or concern for, but it could unleash an<br />

unmanageable wave of lawsuits. Clearly, Texas designed<br />

S.B.8 to spur a series of enforcement lawsuits that are ?so<br />

multiplicitous and burdensome that the threat of<br />

enforcement deters the provision of covered abortions<br />

altogether.? 16<br />

8. Roe v. Wade, 410 U.S. 113 (1973).<br />

9. ?A Recent History of Restrictive Abortion <strong>Law</strong>s in Texas,? ACLU Texas, <strong>No</strong>vember 24, 2021, https://www.aclutx.org/en/recent-history-restrictive-abortion-laws-texas.<br />

10. Ibid.<br />

11. Ibid.<br />

12. Ibid.<br />

13. S.B.8. § 171.203(a); ?An Overview of Abortion <strong>Law</strong>s,? Guttmacher Institute, <strong>No</strong>vember 1, 2021,<br />

https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.<br />

14. S.B. 8 §171.208(b)(1)-(3); Ryan Lucas, ?A U.S. Judge Blocks Enforcement of Texas?Controversial New Abortion <strong>Law</strong>,? NPR, October 6, 2021,<br />

https://www.npr.org/2021/10/06/1040221171/a-u-s-judge-blocks-enforcement-of-texas-controversial-new-abortion-law.<br />

15. S.B.8 §171.208(b)(2).<br />

16. United States v. Texas, 595 U.S.___ (slip op. at 3) (2021).<br />

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Thus far, the statute has been successful in preventing<br />

access to abortion and in frustrating constitutional<br />

defenses. After coming into effect on September 1, 2021,<br />

?the district court found that [S.B.8] virtually eliminated<br />

access to abortion in Texas after six weeks of<br />

pregnancy.? 17 Providers in neighboring states, including<br />

Oklahoma, Kansas, Colorado, New Mexico, and even<br />

Nevada, have experienced an influx of patients from Texas<br />

who are unable to access the service in their home state.<br />

In addition to the burdens S.B.8 has already placed on<br />

women and on abortion providers in other states, it has<br />

begun to show its potential of overwhelming Texas?s<br />

judicial system. In fact, upon admitting that he performed<br />

an abortion prohibited by S.B.8, San Antonio obstetrician<br />

and gynecologist Dr. Alan Braid faced at least two lawsuits<br />

just two days after his Washington Post op-ed was<br />

published. 18 This instance demonstrates the potential for<br />

similar suits to overwhelm Texas courts. The statute has<br />

only been in place for three and a half months and has<br />

already unleashed serious consequences, foreshadowing its<br />

even more disastrous potential.<br />

S.B.8: Legal Issues<br />

S.B.8 poses two key legal issues: it violates abortion<br />

precedent and radically expands the concept of standing.<br />

Examining both issues highlights the statute?s problematic<br />

and unprecedented nature.<br />

Violations of Abortion Precedent<br />

Over the past 50 years, the U.S. Supreme Court has<br />

consistently upheld a woman?s right to abortion. In Roe v.<br />

Wade, a pregnant woman brought a class action against<br />

Henry Wade, the District Attorney of Dallas County, to<br />

challenge the constitutionality of Texas?s abortion<br />

regulations. 19 Roe alleged that the laws? which permitted<br />

abortions only in cases where the mother?s life was in<br />

danger? were unconstitutional and violated her right to<br />

privacy as protected by the First, Fourth, Fifth, Ninth, and<br />

Fourteenth Amendments. 20 The Supreme Court held that<br />

Texas?s laws indeed violated a woman?s right to privacy. 21<br />

It ultimately decided that abortion was a personal liberty<br />

guaranteed by the Due Process Clause in the Fourteenth<br />

Amendment. 22 Specifically, it ruled that the state may not<br />

intervene in a woman?s decision to have an abortion in the<br />

first trimester of pregnancy, that certain restrictions to<br />

protect maternal health may be imposed in the second<br />

trimester, and that abortions may only be prohibited once<br />

the fetus reached a point of viability in the third<br />

trimester. 23 This landmark case laid a critical foundation<br />

protecting a woman?s constitutional right to abortion.<br />

Since Roe, the Court has explained and enlarged the sphere<br />

of constitutionally-protected rights related to abortion. For<br />

example, Planned Parenthood of Southeastern<br />

Pennsylvania v. Casey (1992) affirmed and refined Roe?s<br />

holdings. 24 In this case, plaintiffs challenged<br />

Pennsylvania?s Abortion Control Act, which required<br />

women to give ?informed consent? before an abortion<br />

could be performed and implemented a 24-hour waiting<br />

period before a woman could receive an abortion. 25 It also<br />

17. Ibid., 595 U.S. at ___ (slip op. at 5).<br />

18. Alan Braid, ?Why I Violated Texas?Extreme Abortion Ban,? Washington Post, September 18, 2021, https://www.washingtonpost.com/opinions/2021/09/18/<br />

texas-abortion-provider-alan-braid/; Reese Oxner, ?Texas Doctor Who Admitted to Violating the State?s Near-Total Abortion Ban Sued Under New <strong>Law</strong>, The Texas<br />

Tribune, September 20, 2021, https://www.texastribune.org/2021/09/20/texas-abortion-ban-doctor-al3an-braid/.<br />

19. Roe v. Wade, 410 U.S. 113 (1973).<br />

20. Ibid, 410 U.S. at 120.<br />

21. Ibid., 410 U.S. at 154.<br />

22. Ibid., 410 U.S. at 113.<br />

23. Ibid. at 162.<br />

24. Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992).<br />

25. Ibid.<br />

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required that minors seeking abortions attained parental<br />

consent and that wives received their spouse?s consent. 26<br />

Though the Supreme Court held that many of these<br />

restrictions were constitutional, it struck down the<br />

provision requiring a wife to inform her husband of her<br />

decision to have an abortion. 27 Critical in this holding was<br />

the creation of a standard asking whether a state regulation<br />

imposes an ?undue burden,? or a ?substantial obstacle in<br />

the path of a woman seeking an abortion.? 28<br />

The Supreme Court has consistently affirmed Roe and<br />

Casey, and by extension, the right to an abortion as a<br />

fundamental right. For example, in Whole Woman?s Health<br />

v. Hellerstedt (2016), the Court held that ?unnecessary<br />

health regulations that have the purpose or effect of<br />

presenting a substantial obstacle to a woman seeking an<br />

abortion impose an undue burden on the right and are<br />

therefore constitutionally invalid.? 29 Similarly, in June<br />

Medical Services L.L.C. v. Russo (2020), the court ruled<br />

unconstitutional a law that required doctors performing<br />

abortions to have admitting privileges at a hospital within<br />

30 miles. 30 Such a requirement, the court decided,<br />

constituted an undue burden as defined by Casey.<br />

Altogether, these holdings have shaped the current state of<br />

abortion law.<br />

S.B.8 departs radically from past Supreme Court decisions.<br />

First, S.B.8 subverts Roe. Its prohibition of abortions after<br />

six weeks of pregnancy violates Roe?s holding that a state<br />

may not intervene during the first trimester of pregnancy.<br />

The statute also cunningly circumvents Roe, ensuring that<br />

a state need not intervene in cases of abortion, delegating<br />

the authority to do so to private citizens, and stripping<br />

individuals of their ability to sue the state to assert their<br />

constitutional rights. Second, S.B.8 undermines Casey. By<br />

placing restrictions on abortions before women are even<br />

aware of their pregnancy, S.B.8 certainly imposes upon<br />

women a ?substantial obstacle.? Even more concerningly,<br />

S.B.8 seeks to redefine the term ?undue burden.? It states:<br />

?a court may not find an undue burden . . . unless the<br />

defendant introduces evidence proving that an award of<br />

relief will prevent a woman . . . from obtaining an<br />

abortion.? 31 These guidelines seek to ?dictate how [the]<br />

courts interpret Supreme Court precedent.? 32<br />

Clearly, S.B.8 stands in stark contrast to the legal<br />

precedents set by Roe and Casey. Coupled with the law?s<br />

insidious attempts to evade legal challenges, its intentional<br />

departure from precedent renders it worthy of extreme<br />

concern.<br />

Expansion of Standing<br />

S.B.8?s relevance, however, goes beyond the abortion<br />

issue; in fact, the provision that outsources enforcement<br />

and expands standing has potentially dangerous<br />

implications for all constitutional rights. Standing is the<br />

capacity of a party to bring a lawsuit in court. 33 In the<br />

context of S.B.8, there are two relevant types of standing:<br />

standing to enforce, which guides who can enforce a law,<br />

and standing to challenge, which dictates who can sue to<br />

challenge a law. Recognizing S.B.8?s unique<br />

conceptualization of standing to challenge, this section will<br />

explain what constitutes standing to challenge under<br />

respective definitions in federal law and in Texas?s state<br />

law.<br />

26. Ibid.<br />

27. Ibid., 505 U.S. at 895.<br />

28. Ibid.<br />

29. Whole Woman?s Health v. Hellerstedt, 136 S. Ct. 992 (2016), cited in June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2103 (2020).<br />

30. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. at 2103.<br />

31. S.B. 8 § 171.209.<br />

32. Maggie Astor, ?Here?s What the Texas Abortion <strong>Law</strong> Says,? New York Times, September 9, 2021, https://www.nytimes.com/article/abortion-law-texas.html.<br />

33. U.S. Const. art. III.<br />

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Federal Standing <strong>Law</strong>s<br />

In federal law, standing is derived from Article III of the<br />

Constitution and gives the federal courts jurisdiction over<br />

?Cases and Controversies.? 34 The Supreme Court has long<br />

held that to satisfy the Case or Controversy requirement,<br />

the federal court must determine whether the plaintiff has<br />

?standing,? or a particularized grievance arising from the<br />

challenged Statute or conduct which can be redressed in<br />

the courts. 35 The Supreme Court?s ruling in Hollingsworth<br />

v. Perry (2013) provides detailed guidance on the<br />

particularized injury requirement. In Hollingsworth, no<br />

Californian state officials were willing to defend<br />

Proposition 8? which intended to ban same-sex<br />

marriage? in a lawsuit brought by same-sex couples. 36<br />

Proponents of Proposition 8 subsequently stepped in as<br />

defendants. The question then became whether these<br />

proponents had the authority to represent the state. The<br />

Supreme Court ultimately held that petitioners did not<br />

have standing. In his opinion, Chief Justice Roberts stated<br />

that standing requires that a party ?seek remedy for a<br />

personal and tangible harm.? 37 He acknowledged that the<br />

Supreme Court has ?allowed litigants to assert the interests<br />

of others,? but highlighted that the ?litigants themselves<br />

?must have suffered an injury . . . thus giving [them] a<br />

sufficiently concrete interest in the outcome of the<br />

dispute.?? 38 Because petitioners did not suffer an injury and<br />

did not have a particularized interest, the Court decided<br />

that they did not have standing.<br />

In the context of S.B.8, the court?s ruling in Hollingsworth<br />

begs the question: does a member of the general<br />

population, upon learning that someone has performed or<br />

assisted in the performance of an abortion, have a<br />

particularized injury? Or are they simply a bystander?<br />

S.B.8 does not require that plaintiffs experience a personal<br />

injury or particularized interest to bring a lawsuit against<br />

anyone who performs or assists in the performance of an<br />

abortion. Clearly, the statute violates the Supreme Court?s<br />

conceptualization of standing to challenge as decided in<br />

Hollingsworth.<br />

The question then becomes: Can a piece of legislation like<br />

S.B.8 create a cause of action to endow standing upon an<br />

individual? The Supreme Court tackled this question in<br />

TransUnion v. Ramirez (2021). 39 In TransUnion, the<br />

Supreme Court held that even in cases where federal<br />

statutes grant individuals the right to sue for statutory<br />

damages, a plaintiff must prove that they suffered actual<br />

injury from a statutory violation. Importantly, then,<br />

TransUnion found that standing cannot be created by<br />

legislative fiat. 40 In other words, even where a statute<br />

provides a cause of action, the federal courts have a<br />

constitutional obligation to ask whether a plaintiff has<br />

standing. This ruling set a precedent applicable to cases<br />

challenging S.B.8. Courts hearing such cases will thus<br />

have to confront the issue of the mechanism by which<br />

S.B.8 endows upon citizens standing they would not<br />

otherwise have.<br />

Understanding S.B.8?s disregard for the Supreme Court?s<br />

rulings on requirements for standing to challenge sparks<br />

serious concerns about its threat to abortion rights and to<br />

civil rights more generally. As stated in the Supreme<br />

34. U.S. Const. art. III.<br />

35. U.S. Const. art. III.; Hollingsworth v. Perry, 570 U.S. 693 (2013).<br />

36. Hollingsworth v. Perry, 570 U.S. at 693.<br />

37. Ibid., 570 U.S. at 704 (2013).<br />

38. Ibid.<br />

39. TransUnion LLC. V. Ramirez, 141 S. Ct. 2190 (2021).<br />

40. Ari Gabinet, ?Fetal Heartbeats, Civil Enforcement, and Standing Under the Texas Constitution,? <strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong>, July 2021,<br />

https://www.brownulr.org/blogposts/fetal-heartbeats-civil-enforcement-and-standing-under-the-texas-constitution.<br />

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Court?s decision in TransUnion, affirming an<br />

understanding of standing that does not require a<br />

particularized injury would ?flout constitutional text,<br />

history, and precedent.? 41 T hese risks should be enough to<br />

effectively challenge and strike down S.B.8.<br />

Texas Standing <strong>Law</strong>s<br />

However, S.B.8 suits are brought in Texas state courts, and<br />

thus the Case or Controversy requirement under Article III<br />

does not apply. In fact, Texas state law has its own<br />

standing requirements. These requirements are most<br />

clearly reflected in the Supreme Court of Texas?s decision<br />

in Scott v. Board of Adjustment (1966). This court<br />

recognized that ?in most cases of this general nature, it has<br />

usually been required that the plaintiff be a ?person<br />

aggrieved?? and that ?the plaintiff must allege and show<br />

how he has been injured or damaged other than as a<br />

member of the general public in order to enjoin the actions<br />

of a governmental body.? 42 Yet, the court?s final analysis<br />

in this decision centered around the fact that ?in other<br />

instances, however, the courts have recognized the rights<br />

of individuals to challenge governmental action without<br />

showing any particular damage.? 43 It cited Spence v.<br />

Fenchler (1915), a case in which ?any citizen [was<br />

authorized] to bring action to enjoin the operation of a<br />

bawdyhouse? to support its conclusions. 44 S.B.8 thus<br />

technically abides by Texas standing laws and precedent,<br />

as the ?Texas courts have left open the possibility that the<br />

legislature may endow private parties with the right to<br />

institute lawsuits to vindicate a public interest.? 45<br />

S.B.8 may follow Texas standing laws, but it nonetheless<br />

creates a series of legal issues. The most relevant of these<br />

issues pertain to the statute?s clear violation of precedent in<br />

abortion law and its radical expansion of the concept of<br />

standing as it has been construed under federal law.<br />

Tackling these issues will necessitate creative legal<br />

thinking to ensure that abortion rights? and civil rights<br />

more generally? are protected.<br />

Whole Woman?s Health v. Jackson<br />

History and Procedural Posture<br />

Before exploring the ways in which Whole Woman?s<br />

Health v. Jackson confronts the legal issues posed by<br />

S.B.8, it is important to understand the procedural posture<br />

of the case. Petitioners comprise a coalition of abortion<br />

providers, individuals, and organizations who support<br />

abortion patients and who have sought to challenge S.B.8<br />

for many of the previously explained legal issues it<br />

presents. They alleged a claim under 42 U.S.C. § 1983,<br />

which authorizes suits for violations of federal civil rights<br />

by persons operating ?under color of state law,? or in their<br />

official capacities. 46 Even before S.B.8 went into effect,<br />

this coalition attempted to stay its enforcement. 47 In fact,<br />

Whole Woman?s Health filed a lawsuit against the clerks<br />

and judges of the Texas state courts, the attorney general,<br />

other state executive officials, and a private individual who<br />

expressed an intention of enforcing the abortion ban<br />

(collectively referred to as ?respondents?). Specifically,<br />

they requested that the Supreme Court temporarily block<br />

enforcement of the law? a request that was rejected in a<br />

41. TransUnion LLC. V. Ramirez, 141 S. Ct. at 2190.<br />

42. Scott v. Board of Adjustment, 405 S.W.2d 55, 56 (Tx 1966).<br />

43. Ibid. at 56.<br />

44. Scott v. Board of Adjustment, 405 S.W.2d at 56, citing Spence v. Fenchler, 180 S.W. 597 (1915).<br />

45. Gabinet, ?Fetal Heartbeats, Civil Enforcement, and Standing Under the Texas Constitution.?<br />

46. 42 U.S.C. § 1983.<br />

47. ?Whole Woman?s Health et al. v. Jackson et al.,? Center for Reproductive Rights, <strong>No</strong>vember 24, 2021, https://reproductiverights.org/case/texasabortion-ban-whole-womans-health-jackson/.<br />

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narrow 5?4 decision. 48<br />

Legal Issues<br />

Whole Woman?s Health v. Jackson not only confronts the<br />

legal issues posed by S.B.8, but involves a series of<br />

procedural legal issues revolving around whether Whole<br />

Woman?s Health can bring suit against Texas?s courts and<br />

judges. These issues give rise to two key questions: First,<br />

does Whole Woman?s Health have standing to sue?<br />

Second, may the plaintiffs invoke the federal courts to<br />

enjoin state judges in Texas from deciding cases under<br />

S.B.8?<br />

1. Whole Woman?s Health Has Standing to<br />

Challenge<br />

Whether a party has standing to sue is one of the first<br />

important legal issues worthy of consideration in Whole<br />

Woman?s Health. As explained in the above section on<br />

standing, plaintiffs must meet a particular set of criteria to<br />

have standing to sue. In federal court, a plaintiff must have<br />

suffered Article III injury in the form of ?concrete harm.? 49<br />

Article III injury also requires that there be ?an intention to<br />

engage in a course of conduct arguably affected with a<br />

constitutional interest, but proscribed by a statute, and<br />

there exists a credible [enforcement] threat.? 50 In Whole<br />

Woman?s Health, petitioners argued that they have standing<br />

to bring this suit against respondents because their<br />

activities as abortion providers are restricted by S.B.8. 51<br />

Thus, they suffer a concrete harm for conduct affected by a<br />

constitutional interest. 52 Just as plaintiffs must have<br />

standing to invoke the federal court to challenge S.B.8,<br />

defendants must also have standing? that is, they must<br />

have a stake in the lawsuit. Petitioners argue that<br />

respondents have standing as defendants because Texas<br />

state courts and judges have a direct impact on petitioners?<br />

injuries. 53 Namely, state clerks docket cases pertaining to<br />

S.B.8, and state judges make decisions that ultimately<br />

enforce S.B.8. Respondents, however, contend that this<br />

lawsuit is not proper. First, they point to the fact that<br />

private citizens are the only people with true enforcement<br />

power of the statute. Second, they argue that naming state<br />

clerks and judges as defendants is improper. Specifically,<br />

they contend that 42 U.S.C. § 1983 and precedent preclude<br />

courts and judges from being sued for injunctive relief in<br />

federal court. This argument provides a glimpse into<br />

complications plaguing the next two key procedural<br />

questions of this case.<br />

2. Federal Courts May Interfere with State Court<br />

Proceedings in Exceptional Cases<br />

There exist limitations on the federal court?s ability and<br />

willingness to interfere with state court proceedings.<br />

However, Supreme Court decisions over the course of the<br />

twentieth century have established clear guidelines for<br />

federal court involvement in state court action.<br />

Ex Parte Young<br />

The Supreme Court?s decision in Ex Parte Young (1908)<br />

allowed citizens to sue state officers in federal court to<br />

enjoin enforcement of allegedly unconstitutional state<br />

laws; Young thus set an important precedent pertaining to<br />

cases like Whole Woman?s Health. In Young, the Supreme<br />

Court tackled the issue of whether it was possible to sue in<br />

federal court to block a state from enforcing an allegedly<br />

48. ?Whole Woman?s Health et al. v. Jackson et al.,? 2021.<br />

49. U.S. Const. art. III.<br />

50. Babbitt v. United Farm Workers Nat?l Union, 442 U.S. 289, 298 (1979).<br />

51. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 30) (2021).<br />

52. Ibid.<br />

53. Ibid.<br />

54. Ex Parte Young, 209 U.S. 123 (1908).<br />

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of a pre-enforcement challenge to an allegedly<br />

unconstitutional law. 55<br />

More specifically, Young dealt with a lawsuit challenging a<br />

strict Minnesota law that severely limited the amount that a<br />

railroad could charge. 56 <strong>No</strong>n-Minnesotan shareholders sued<br />

the Attorney General of Minnesota in federal court to<br />

enjoin him from enforcing the law, alleging that it violated<br />

the Fourteenth Amendment (which prohibits states from<br />

depriving people of property without due process). 57 The<br />

Eleventh Amendment, however, prohibits the citizens of<br />

one state from suing a state of which they are not a citizen,<br />

a concept known as ?sovereign immunity.? It also states<br />

that the ?judicial power of the U.S. shall not be construed<br />

to extend to any suit in law or equity, commenced or<br />

prosecuted against one of the United States by Citizens of<br />

another State, or by Citizens or Subjects of any Foreign<br />

State.? 58<br />

Young thus argued that the lawsuit should have been<br />

dismissed because the Eleventh Amendment did not give<br />

the federal court jurisdiction, as he was, for this purpose,<br />

the embodiment of the state. 59 The Supreme Court<br />

simultaneously held that Young could be sued in federal<br />

court without violating the Eleventh Amendment and that<br />

Young?s actions were nonetheless ?state action? under the<br />

Fourteenth Amendment. It stated:<br />

The attempt of a state officer to enforce an<br />

unconstitutional Statute is a proceeding without<br />

authority of, and does not affect, the State in its<br />

sovereign or governmental capacity, and is an illegal<br />

act and the officer is stripped of his official character<br />

and is subjected in his person to the consequences of<br />

his individual conduct. The State has no power to<br />

impart to its officer immunity from responsibility to<br />

the supreme authority of the United States. 60<br />

Altogether, this holding allowed citizens to sue state<br />

officers in federal court to enjoin enforcement of state laws<br />

that are allegedly unconstitutional. However, in his opinion<br />

in Young, Justice Pekham noted that it would be entirely<br />

different for a federal court to enjoin a state court. 61 He<br />

argued that doing so would upset the entire federalist<br />

balance on which the United States is based. 62<br />

In the context of an unconstitutional abortion law and the<br />

lawsuit brought by Whole Woman?s Health to challenge it,<br />

Ex Parte Young is extremely relevant. Plaintiffs argue that<br />

Young gives them the ability to sue all state courts and<br />

judges in Texas to enjoin them from hearing or entering<br />

judgments on S.B.8. Defendants argue that it does not,<br />

citing the importance of the federalist balance that Justice<br />

Pekham emphasized. Understanding Young in the context<br />

of Whole Woman?s Health thus compels consideration of<br />

whether a pre-enforcement challenge to prevent the<br />

deprivation of constitutionally-protected rights is allowed,<br />

or whether a woman must be actively deprived of her<br />

constitutional right in order to sue an abortion provider to<br />

protect her rights. The decision in Young would seem to<br />

suggest that petitioners may seek pre-enforcement<br />

challenges in federal court to protect their constitutional<br />

rights.<br />

Younger v. Harris<br />

After Young, the Supreme Court dealt with cases that<br />

similarly compelled questions surrounding when federal<br />

55. Ibid.<br />

56. Ibid.<br />

57. Ibid.<br />

58. U.S. Const. amend. XI.<br />

59. Ex Parte Young, 209 U.S. at 123.<br />

60. Ibid.<br />

61. Ibid.<br />

62. Ibid.<br />

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The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward<br />

court interference in state court proceedings is permissible.<br />

<strong>No</strong>tably, the Court?s decision in Younger v. Harris (1971)<br />

held that federalism prevents federal courts from<br />

intervening with state court decisions, but with certain<br />

exceptions. 63 In Younger, Harris, who had been indicted for<br />

violating the California Criminal Syndicalism Act, sued<br />

the county district attorney in the federal district court to<br />

enjoin Younger from prosecuting Harris. Harris?s claims<br />

were rooted in the notion that the act was unconstitutional<br />

and violative of his First Amendment rights. 64 In this case,<br />

then, the court dealt with 18 U.S.C. § 2283, or the<br />

Anti-Injunction Act, which bars federal court injunctions<br />

against state court proceedings unless authorized by act of<br />

Congress. 65 Ultimately, the Supreme Court decided that<br />

federal courts may not enjoin ongoing state court criminal<br />

proceedings, except in extreme circumstances where such<br />

an enjoinment is explicitly authorized by Congress and can<br />

prevent grave and immediate harm? thereby creating the<br />

Younger exception. 66 In the end, the court decided that<br />

prosecution under an allegedly constitutional law does not<br />

constitute such a harm. Nevertheless, Younger is relevant<br />

because it indicates that federal involvement in state court<br />

proceedings may be allowed in certain exceptional cases<br />

where such involvement can prevent harm and where<br />

Congress gives explicit approval.<br />

42 U.S.C. § 1983<br />

42 U.S.C. § 1983 provides the legislative approval that the<br />

Younger exception requires. § 1983 authorizes civil action<br />

for a deprivation of rights. Specifically, it states:<br />

Every person who, under color of any Statute . . .<br />

subjects . . . or causes to be subjected, any citizen of<br />

the United States . . . shall be liable to the party injured<br />

in an action at law, suit in equity, or other proper<br />

63. Younger v. Harris, 401 U.S. 37 (1971).<br />

64. Ibid.<br />

65. Ibid.<br />

66. Ibid.<br />

67. 42 U.S.C. § 1983.<br />

68. Mitchum v. Foster, 407 U.S. 225 (1972).<br />

69. Ibid., 407 U.S. at 224.<br />

70. Ibid., 407 U.S. at 225.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />

proceeding for redress, except that in any action<br />

brought against a judicial officer for an act or omission<br />

taken in such officer?s judicial capacity, injunctive<br />

relief shall not be granted unless a declaratory decree<br />

was violated or declaratory relief was unavailable. 67<br />

In essence, § 1983 allows people to sue the state<br />

actors? specifically, state officials and state entities? for<br />

civil rights violations. It applies when someone acting in<br />

their official state capacities deprives a person of rights<br />

created by a federal or state law. Thus, § 1983 grants the<br />

congressional authorization that the Younger exception<br />

requires. The purpose of § 1983, then, is to ?interpose the<br />

federal courts between the states and the people, as<br />

guardians of the people?s federal rights: to protect the<br />

people from unconstitutional action under color of state<br />

law, whether that action be executive, legislative, or<br />

judicial.? 68<br />

Mitchum v. Foster<br />

Mitchum v. Foster (1972) dealt with § 2283, or the<br />

Anti-Injunction Act, in the context of § 1983. 69 It is thus a<br />

significant case through which to examine the Supreme<br />

Court?s interpretation and application of the Younger<br />

exception. In Mitchum, the attorney general of Bay<br />

County, Florida shut down a bookstore because it was an<br />

alleged public nuisance. Claiming that such an act<br />

violated his First and Fourteenth Amendment rights to<br />

cause him ?great and irreparable harm,? the bookstore<br />

owner relied on § 1983 to seek injunctive relief against the<br />

state courts. 70 The Supreme Court thus tackled the question<br />

of whether federal courts can issue prospective relief<br />

against state court actions. Because injunctive cases under<br />

§ 1983 are explicitly authorized by Congress, the Supreme<br />

Court held that § 1983 authorized federal issuance of<br />


The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward<br />

prospective relief against state court actions. 71 This<br />

decision emphasized that "federal injunctive relief against<br />

a state court proceeding can in some circumstances be<br />

essential to prevent great, immediate, and irreparable loss<br />

of a person?s constitutional rights.? 72 Mitchum is thus<br />

relevant in the context of Whole Woman?s Health because<br />

it evidences a case in which explicit congressional<br />

approval as authorized by § 1983 allows federal courts to<br />

issue prospective relief in state court proceedings.<br />

Pulliam v. Allen<br />

Pulliam v. Allen (1984) is another case in which the<br />

Supreme Court dealt with the issue of whether prospective<br />

injunctive relief was permitted against state courts under §<br />

1983. 73 In Pulliam, respondents challenged a Virginia<br />

court?s practice of setting bail for people who could not<br />

pay fines for non-jailable offenses. 74 Among other things,<br />

the respondents? suit sought damages as well as an<br />

injunction against the future use of such a practice. The<br />

Court ultimately ruled that litigants were allowed to obtain<br />

prospective relief in suits against state-court judges, citing<br />

the fact that the United States did not have a doctrine of<br />

judicial immunity from prospective relief. 75 This case was<br />

thus critical in affirming a citizen?s right to sue a<br />

state-court judge.<br />

The decision in Pulliam is relevant to Whole Woman?s<br />

Health in two ways. First, it shows that § 1983 indeed<br />

permits prospective injunctive relief against state<br />

courts? which is exactly what Whole Woman?s Health<br />

seeks. Second, it demonstrates the Supreme Court?s<br />

understanding of the function of § 1983 as one that<br />

recognizes the role of the federal courts in protecting<br />

people from unconstitutional action under the color of state<br />

law.<br />

The language of § 1983, however, limits actions against<br />

judges to situations where a violation of declaratory<br />

judgment has occurred or where declaratory relief is<br />

unavailable. 76 S.B.8 expressly prohibits suit for declaratory<br />

relief. 77 As highlighted by the petitioner?s brief in Whole<br />

Woman?s Health, ?S.B. 8 precludes declaratory-judgment<br />

suits and immunizes the State and all state officials from<br />

challenges in the State's own courts.? 78 § 1983?s language,<br />

then, seems to permit the suit by Whole Woman?s Health.<br />

The procedural issues that tied up Whole Woman?s Health<br />

render the case much more complicated than initially<br />

meets the eye. Specifically, issues of standing and of<br />

federal court involvement in state court proceedings must<br />

be unraveled and tackled to ensure that a woman?s right to<br />

abortion is upheld.<br />

The Supreme Court?s Decision<br />

Ultimately, the previously discussed jurisdictional issues<br />

posed by Whole Woman?s Health compelled the court to<br />

disallow the petitioner?s requested pre-enforcement<br />

challenge against most of the named defendants in a 5?4<br />

decision released on December 10, 2021. In fact, the court<br />

concluded that Judge Jackson, Penny Clarkson (a<br />

71. 42 U.S.C. § 1983.<br />

72. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 25) (2021), citing Mitchum v. Foster, 407 U.S. at 225.<br />

73. Pulliam v. Allen, 466 U.S. 522 (1984).<br />

74. Ibid.<br />

75. Ibid.<br />

76. 42 U.S.C. § 1983.<br />

77. Tex. Health & Safety Code § 171.211(a)-(b).<br />

78. Whole Woman?s Health v. Jackson, 595 U.S. ___ (2021); Tex. Health & Safety Code § 171.211(a)-(b).<br />

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The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward<br />

state-court clerk), Texas Attorney General Paxton, and the<br />

sole private defendant be dismissed. To explain its decision<br />

surrounding dismissal of Judge Jackson and Penny<br />

Clarkson, the Court recognized that while Ex Parte Young<br />

allowed for ?a narrow exception . . . to prevent state<br />

officials from enforcing state laws that are contrary to<br />

federal law . . . this traditional exception does not<br />

normally permit federal courts to issue injunctions against<br />

state-court judges or clerks.? 79 Simply put, the Court<br />

decided that the Younger exception does not apply.<br />

Additionally, the court maintained that petitioners lacked<br />

standing to sue because they did not meet the Article III<br />

?Case or Controversy? requirement. 80 Regarding Texas?s<br />

attorney general, the Court highlighted that petitioners did<br />

not identify ?any enforcement authority the Attorney<br />

General possesses in connection with S.B.8 that a federal<br />

court might enjoin him from exercising.? 81 Finally, the<br />

Court stated that because petitioners did not contest the<br />

sole private defendant?s claim that he had ?no intention to<br />

file an S.B.8 suit against them, the petitioners cannot<br />

establish? personal injury traceable to his conduct. 82<br />

Meanwhile, eight of nine members of the Court decided<br />

that petitioners? pre-enforcement challenge against the<br />

executive licensing officials named as defendants could<br />

proceed. This decision was rooted in the fact that these<br />

officials ?may or must take enforcement actions against the<br />

petitioners if the petitioners violate the terms of [S.B.8].? 83<br />

Unfortunately for petitioners, however, this decision<br />

surrounding executive licensing officials did not bar<br />

enforcement of S.B.8.<br />

This decision thus rendered the bulk of petitioners?<br />

sufficient and their goals unachievable. S.B.8, then,<br />

continues to achieve exactly what it set out to? violating<br />

rights protected by precedent and constitutional provisions<br />

while circumventing any legal challenge that seeks to<br />

dismantle it. Justice Sotomayor highlighted this in a<br />

powerful dissenting opinion, in which she recognized the<br />

?chilling? effects of S.B.8, the ?failure? of the Court to<br />

?put an end to this madness,? and the Court?s betrayal ?not<br />

only [of] the citizens of Texas, but also [of] our<br />

constitutional system of government.? 84 Sotomayor?s<br />

comments highlight the detrimental consequences of the<br />

Court?s decision not only for women in Texas, but also for<br />

the very respect for legal precedent and constitutional<br />

rights in the United States.<br />

Conclusion<br />

Clearly, the unprecedented nature of S.B.8 renders it<br />

worthy of legal challenge. Unfortunately, as of yet, it<br />

seems as though Whole Woman?s Health v. Jackson cannot<br />

act as that challenge. While this is somewhat<br />

understandable given the various jurisdictional and<br />

procedural problems plaguing S.B.8 and Whole Woman?s<br />

Health, the inability of the judicial system to effectively<br />

uphold a woman?s constitutionally-protected right to an<br />

abortion is chilling. Even more terrifying is the broader<br />

context in which S.B.8 and Whole Woman?s Health have<br />

taken place? a context dominated by concerns as to<br />

whether Roe?s holdings will be struck down by other cases<br />

on the Supreme Court docket.<br />

79. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 3) (2021).<br />

80. Ibid.<br />

81. Ibid.<br />

82. Ibid.<br />

83. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 4) (2021).<br />

84. Whole Woman?s Health v. Jackson, 595 U.S. at ___ (slip op. at 2) (Sotomayor, J., dissenting).<br />

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The Texas Fetal Heartbeat Statue and Whole Woman's Health v. Jackson: Unraveling the Procedural Dilemma and Rethinking a Way Forward<br />

Whole Woman?s Health may have been too procedurally<br />

unsound to strike down S.B.8, but the legal fight against<br />

unconstitutional and restrictive abortion laws must persist.<br />

Scholars, litigators, and advocacy organizations must<br />

continue to think creatively and flexibly in constructing<br />

lawsuits to ensure that women?s fundamental bodily rights<br />

are protected. Above all, the Supreme Court must ensure<br />

that ?unconstitutional laws [are] susceptible to federal<br />

court challenges. And if there is no historical precedent for<br />

allowing a challenge in federal court to this kind of<br />

unconstitutional law, the Supreme Court is obligated to<br />

establish one.? 85<br />

85. Kimberly Wehle, ?Will Supreme Court Allow Constitutional Oversight to be Outmaneuvered by Texas Abortion <strong>Law</strong>?,? The Hill, <strong>No</strong>vember 2, 2021,<br />

https://thehill.com/opinion/judiciary/579675-will-supreme-court-allow-Federal-oversight-to-be-outmaneuvered-by-texas.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />




Carrie Deng '22<br />


Historically a popular destination for immigration, the United States has had difficulties in regulating<br />

legal and illegal immigration since the twentieth century. The issuance and subsequent rescission of<br />

DACA and DAPA, as well as the debates over the legitimacy of such governmental action in court,<br />

exemplify the tension surrounding illegal immigration. This paper highlights the legal aspect of how<br />

the courts resolved this series of cases in which state governments of different political leanings<br />

opposed the federal government in order to achieve favorable outcomes for respective immigration<br />

policies. Specifically, this paper investigates how the courts tackled the issue of standing, which<br />

epitomizes how the courts strived to avoid becoming a pure political battleground. Examining the<br />

neutrality of judicial power in the face of political polarization, as well as the peculiar relationship<br />

between state and federal governments, is critical to understanding this ongoing battle.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


DACA, DAPA, and a Political Battle in Court<br />

Introduction<br />

Illegal immigration has been a historically neglected and<br />

unresolved issue in American society, especially in the<br />

political and policy realms. Today, the United States has<br />

the largest population of immigrants in the world, both<br />

legal and illegal. Yet, approximately 23 percent of all<br />

immigrants who came to this land to live out the<br />

?American Dream? are unauthorized? they either entered<br />

the U.S. territory illegally or overstayed their legal<br />

permission. 1<br />

Illegal immigrants participate in and contribute to the<br />

socioeconomic landscape perplexingly: they can cause<br />

various social issues and are deeply impacted in the<br />

meantime. These issues include but are not limited to<br />

unclaimed tax revenue base and social benefits, inefficient<br />

labor market competition, and possible contributions to<br />

crime rates. 2 Because their healthcare is unsecured, illegal<br />

immigrants are more likely to receive insufficient<br />

treatment and care, leading to a substantial inequality in<br />

health outcomes. 3 Economically, illegal immigrants have<br />

higher necessity to work under unfavorable conditions,<br />

which offers employers higher leverage in employment<br />

relationships. As a result of the Affordable Care Act<br />

(ACA), employers with 50 or more employees must offer<br />

healthcare coverage for their workers, but they are exempt<br />

from doing so for illegal immigrants. 4 While some studies<br />

suggest that unauthorized immigration is<br />

disproportionately responsible for high crime rates and<br />

public safety issues, the true effect of illegal immigrants on<br />

public safety is strongly debated because of lack of<br />

representation in sampling. 5 The complexity of issues<br />

brought about by illegal immigration has spurred intense<br />

discussion within American society; therefore,<br />

unauthorized immigrants have always contributed to<br />

political and social controversies and are thus central in<br />

public policy discussions after the twentieth century.<br />

The problems that unauthorized immigrants face are<br />

especially acute for those who came to the United States<br />

illegally as children, a group that constitutes a significant<br />

portion of the unauthorized immigrant population. For<br />

example, despite spending significant time in their current<br />

residences, they do not qualify for in-state tuition for<br />

public education, which further burdens their already<br />

disadvantaged economic condition. 6 Without accessible<br />

education and work authorization, they face more<br />

difficulties living in American society.<br />

As a result of years of political polarization between<br />

Democrats and Republicans, Congress has failed to<br />

address the issues around unauthorized immigration, and<br />

especially issues that affect those who came to the United<br />

States as children. The Immigration and Nationality Act<br />

(INA) has not been updated since 1990, while<br />

unauthorized immigration continues. The Development,<br />

Relief, and Education for Alien Minors Act (DREAM Act)<br />

is a legislative proposal to grant temporary legal residency<br />

to those who came to the United States as minors, called<br />

?the DREAMers,? with the right to work and a viable path<br />

to legal status if they satisfy further requirements. The<br />

DREAM Act has failed in Congress 12 times since its<br />

initial proposal in 2001. The lack of action in the<br />

1. Mark Hugo Lopez, Jeffrey S. Passel, and D?Vera Cohn, ?Key Facts about the Changing U.S. Unauthorized Immigrant Population,? Pew Research Center (Pew<br />

Research Center, April 13, 2021), https://www.pewresearch.org/fact-tank/2021/04/13/key-facts-about-the-changing-u-s-unauthorized-immigrant-population/.<br />

2. Robert Warren and Donald Kerwin, ?Beyond Dapa and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the<br />

United States,? Journal on Migration and Human Security 3, no. 1 (2015): 85, https://doi.org/10.1177/233150241500300104.<br />

3. Abby Budiman, ?Key Findings about U.S. Immigrants,? Pew Research Center, September 22, 2020,<br />

https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/.<br />

4. § 5000A. Requirement to maintain minimum essential coverage [Caution: For the inflation adjustment of certain items in this section, see the Revenue Procedure<br />

which appears as 26 USCS § 1 note.]., 26 USCS § 5000A (Current through Public <strong>Law</strong> 117-80, approved December 27, 2021, with a gap of Public <strong>Law</strong> 117-58. Title<br />

26 provisions are current through Public <strong>Law</strong> 117-80.).<br />

5. Budiman, ?Key Findings.?<br />

6. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


DACA, DAPA, and a Political Battle in Court<br />

legislature is largely attributable to bipartisan polarization<br />

in Congress and both sides?unwillingness to compromise. 7<br />

The DREAMers are therefore left unaccounted for at the<br />

legislative level. 8<br />

In light of Congress?s inaction, the executive<br />

branch? presidents and executive agencies? have initiated<br />

immigration reform with a focus on the DREAMers. One<br />

of the most famous and controversial programs is the<br />

Deferred Action for Childhood Arrivals program (DACA).<br />

In 2012, DACA was brought into effect by then-president<br />

Obama signing an executive order, issuing a DHS<br />

Memorandum. DACA resembles the DREAM Act in many<br />

respects: DACA offers the DREAMers deferred action, or<br />

temporary legal presence, for a period of two years, subject<br />

to renewal. During this period, recipients are eligible for<br />

work authorization and various other social benefits.<br />

Despite similarities in benefits, the major difference<br />

between DACA and the DREAM Act is that DACA does<br />

not offer a path to citizenship. 9 In 2014, the DHS further<br />

announced an expansion to DACA, removing its age limit,<br />

and another sister program called the Deferred Action for<br />

Parents of Americans and <strong>Law</strong>ful Legal Residents (DAPA)<br />

that extended the aforementioned benefits to the parents of<br />

citizens and LPRs. Estimates suggest that the extension<br />

and DAPA would raise the total population of<br />

undocumented immigrants with lawful presence to 5.8<br />

million, more than half of the illegal immigrants in the<br />

country. 10<br />

Shortly after the announcement, Texas and other states<br />

with Republican governors and legislatures challenged the<br />

federal government in court on three grounds. 11<br />

Procedurally, DAPA as a substantive rule did not go<br />

through the notice-and-comment process? the period<br />

before a rule goes into effect that solicits public opinion.<br />

Substantively, DAPA conflicted with the terms of the<br />

Immigration and Nationality Act (INA). Constitutionally,<br />

they argued, DAPA violated the Take Care Clause of the<br />

Constitution, which grants the executive branch duties to<br />

ensure that laws are rightfully implemented, and threatened<br />

the separation of powers. 12 The case, Texas v. United States<br />

(2015), is referred to as Texas I. 13 The District Court of<br />

Southern Texas found that the states had standing and<br />

granted a preliminary injunction in favor of the states on<br />

the procedural APA claim, preventing DACA from going<br />

into effect pending the final outcome of the case. After the<br />

Fifth Circuit and the Supreme Court (per curiam with<br />

divided court) affirmed, Texas I was stayed because of the<br />

2016 election; president-elect Trump indicated his<br />

intention to rescind DACA via his own executive order and<br />

therefore urged the courts to hold off further litigation on<br />

the merits of the case. 14<br />

In 2017, then-president Trump rescinded DAPA and the<br />

expansion of DACA successfully. He also attempted to<br />

rescind the original DACA but was faced with significantly<br />

more opposition. Several cases challenged the legitimacy<br />

of the rescission of DACA, primarily with liberal or<br />

progressive plaintiffs that employed many<br />

DACA-recipients. 15 The Supreme Court consolidated them<br />

into one case: Department of Homeland Security v.<br />

Regents of Univ. of Ca. (2020) (Regents). The Supreme<br />

Court then decided in Regents that the rescission of DACA<br />

7. ?Actions - S.2649 - 117th Congress (2021-<strong>2022</strong>): Dream Act of 2021,? December 12, 2021, https://www.congress.gov/bill/117th-congress/senate-bill/264/actions.<br />

8. G. David Gearhart and William A. Schwab, Right to Dream: Immigration Reform and America's Future, University of Arkansas Press, 2013, 6.<br />

9. ?Consideration of Deferred Action for Childhood Arrivals (DACA),? USCIS, July 19, 2021, https://www.uscis.gov/DACA.<br />

10. Giulia Mcdonnell Nieto, ?What Is DACA? and Where Does It Stand <strong>No</strong>w?,? The New York Times, June 18, 2020,<br />

https://www.nytimes.com/article/what-is-daca.html.<br />

11. Texas v. United States, 809 F. 3d 134, 145 (5th Circ. 2015).<br />

12. Chandler Davidson, Race and Class in Texas Politics, Princeton University Press, 1990, 16.<br />

13. Texas v. United States, 86 F. Supp. 3d 591, 632 (U.S. Dist. 2015).<br />

14. Texas v. United States, 809 F. 3d at 147 (5th Circ. 2015).<br />

15. ?Epilogue: Liberal Politics in California in an ?ERA of Limits,?? California Crucible, 2012, 269-280, https://doi.org/10.9783/9780812206241.269, 275.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


DACA, DAPA, and a Political Battle in Court<br />

violated the Administrative Procedure Act (APA) in that<br />

the decision was ?arbitrary and capricious? and issued a<br />

preliminary injunction in favor of the plaintiffs, by which<br />

the 2012 DACA program remained in effect. 16 The dispute<br />

over DACA, however, had continued. In July 2021, the<br />

District Court of Southern Texas ruled in Texas II (Texas v.<br />

United States) that DACA was ?probably illegal? on very<br />

similar logic in argument to those in the decision of<br />

Regents, addressing the procedural and substantive APA<br />

claims and the Take Care Clause of the Constitution<br />

claim. 17 This suggests that issues around the legality of<br />

DACA and its sister programs are far from resolved, as the<br />

legal tension between state and federal governments<br />

continue.<br />

The courts maintained a consistent rationale following the<br />

Administrative Procedure Act (APA) in deciding Texas I,<br />

Regents, and Texas II. Examination of the court opinions<br />

in Texas I, Regents, and Texas II offers insights into the<br />

framework the judicial branch applies to review agency<br />

action concerning unauthorized immigration. In deciding<br />

these contentious cases, the courts relied on consistent<br />

legal threads: from lower to higher courts. All three cases<br />

were decided upon either procedural or substantive APA<br />

claims. Procedurally, APA requires that a substantive rule<br />

go through the notice-and-comment process. Substantively,<br />

the promulgated agency rule in question cannot conflict<br />

with enacted laws, in excess of statutory authority, or be<br />

arbitrary and capricious. 18<br />

Each court started by addressing the standing issue, which<br />

determines if the party is allowed to sue in court. The<br />

inquiry was to make sure that parties challenging the<br />

agency action were interested enough in the outcome of<br />

the case. Standards of standing included particularized<br />

injury, prudential standing, and APA standing?<br />

specifically for review of agency action. Other than<br />

traditional standing tests, the court also considered parens<br />

patriae standing and abdication standing.<br />

The court conducted comprehensive standing tests to<br />

evaluate the eligibility of parties challenging agency<br />

action. The courts decided the three cases based rigorously<br />

on APA claims and avoided constitutional inquiries when<br />

possible. The Supreme Court?s standing analysis has been<br />

?especially rigorous when reaching the merits of the<br />

dispute would force the Court to decide whether an action<br />

taken by one of the other two branches of the federal<br />

government was unconstitutional.? 19 Rarely are issues<br />

decided on constitutional grounds if there are viable<br />

alternative legal standards. Thus, all three cases were ruled<br />

on APA claims.<br />

The court proceeded from procedural to substantive APA<br />

turn. If the court can decide on procedural claims, it<br />

generally does not review substantive claims. The Fifth<br />

Circuit opinion on Texas I, however, incorporated a<br />

discussion of substantive claims as an additional ground to<br />

affirm the preliminary injunction, although the district<br />

court?s decision was based on procedural claims. The<br />

district court in Texas II also addressed the substantive<br />

claims because President Biden?s executive order indicated<br />

that the DHS would most likely address procedural issues<br />

regarding DACA. 20 Regents was purely argued on<br />

substantive grounds.<br />

The courts approached the procedural claims by<br />

determining if an agency action was substantive<br />

rulemaking, because a substantive rule requires a<br />

notice-and-comment process. To determine whether a rule<br />

was substantive, the courts focused on whether the rule<br />

16. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1847 (2020).<br />

17. Texas v. United States, 1:18-CV-00068 (S.D. Texas July 16, 2021).<br />

18. § 706. Scope of review, 5 USCS § 706 (Current through Public <strong>Law</strong> 117-80, approved December 27, 2021, with a gap of Public <strong>Law</strong> 117-58. Title 26 provisions are<br />

current through Public <strong>Law</strong> 117-80.).<br />

19. Texas v. United States, 809 F. 3d at 154 (5th Circ. 2015).<br />

20. Texas v. United States, 2021 U.S. Dist. LEXIS 133114, 27 (U.S. Dist. 2021).<br />

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DACA, DAPA, and a Political Battle in Court<br />

severely restricted agency discretion. 21<br />

The courts analyzed the substantive claims by placing the<br />

agency action in the context of laws enacted by Congress.<br />

Critical inquiries included whether Congress had directly<br />

spoken on the issue addressed by the agency action and<br />

whether the agency?s interpretation of the statute was<br />

consistent and reasonable. The courts interrogated whether<br />

the agency had adequately explained and considered all<br />

important aspects of the agency decision. 22<br />

If the judicial branch cannot review the alleged agency<br />

action on APA grounds, it would resort to constitutional<br />

claims. In Texas I, the plaintiffs, mainly states with<br />

Republican governors and legislatures, alleged that DAPA<br />

and Expanded DACA violated the APA and the Take Care<br />

Clause of the Constitution and sought to enjoin these<br />

programs. The District Court of Southern Texas granted<br />

preliminary injunction to the plaintiff states on the<br />

procedural APA claim, and the Fifth Circuit affirmed based<br />

on both procedural and substantive APA grounds. The<br />

Supreme Court affirmed per curiam, where no opinion was<br />

issued. DAPA and Expanded DACA were enjoined from<br />

implementation. 23<br />

Both the district court and the Fifth Circuit started by<br />

examining if DAPA was reviewable under the APA and<br />

decided that it was. <strong>Review</strong>ability under the APA requires<br />

that agency actions are final and that plaintiffs are within<br />

the zone of interest? the plaintiffs must ?come within the<br />

zone of interests to be protected or regulated by the statute<br />

or constitutional guarantee in question.? 24 The zone of<br />

interest requirement is important because it proves that the<br />

plaintiffs are directly affected by the complained agency<br />

action and entitled to challenge it. In this case, the issuance<br />

of DAPA and Expanded DACA was final, and the plaintiff<br />

states were regulated and protected by the INA, which put<br />

them within the zone of interest. 25<br />

Then, to address the procedural APA claim, the district<br />

court inquired whether DAPA was a substantive rule and<br />

concluded that it was. A substantive rule imposes rights<br />

and obligations, and it does not leave the agency and its<br />

decision makers meaningful room for discretion. Because<br />

DAPA and Expanded DACA would effectively grant<br />

lawful presence, they would create rights and obligations<br />

for state governments and other official agencies. They<br />

also prohibited agency discretion, because those who met<br />

requirements were most certainly to become recipients of<br />

the programs. Procedurally, because DAPA and Expanded<br />

DACA were reviewable agency actions and substantive<br />

rules, the fact that they did not go through the<br />

notice-and-comment process appropriately made them in<br />

violation of the APA. 26<br />

The Fifth Circuit also considered the substantive claim in<br />

addition to affirming the procedural one when reviewing<br />

the preliminary injunction: DAPA and Expanded DACA<br />

violated the APA because they were against existing law in<br />

the INA. Congress had directly spoken on the legality of<br />

DREAMers and had created a comprehensive system of<br />

removal and path to citizenship in the INA that was<br />

distinct from what DAPA and Expanded DACA<br />

delineated. 27<br />

Similarly, in Texas II, argued in 2021, the plaintiffs alleged<br />

that the original DACA violated the APA and the Take<br />

Care Clause of the Constitution and sought to enjoin<br />

DACA. The District Court of Southern Texas granted<br />

preliminary injunction to the plaintiff states on both<br />

21. Texas v. United States, 809 F. 3d at 163 (5th Circ. 2015).<br />

22. Dep?t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020).<br />

23. Texas v. United States, 809 F. 3d at 150 (5th Circ. 2015).<br />

24. Ibid., 809 F. 3d at 162.<br />

25. Ibid., 809 F. 3d at 163.<br />

26. Ibid., 809 F. 3d at 177.<br />

27. Ibid., 809 F. 3d at 180.<br />

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procedural and substantive APA claims, although DACA<br />

was not enjoined. Subsequent appellate history is not yet<br />

available. DACA was a substantive rule reviewable under<br />

the APA, and it did not go through a notice-and-comment<br />

process. Substantively, DACA was against the existing<br />

regulations promulgated by the INA. 28<br />

In Regents, the plaintiffs, mainly composed of progressive<br />

state governments and institutions that already employed<br />

DACA-recipients as workers, sued the Trump<br />

Administration and sought to stop the rescission of DACA<br />

based on the substantive APA claim. The Supreme Court<br />

granted a preliminary injunction in favor of the plaintiffs<br />

and stopped DACA from being rescinded. The court ruled<br />

on the substantive APA ground that the DHS?s decision to<br />

rescind DACA was ?arbitrary and capricious.? The court<br />

first addressed and affirmed the reviewability of the<br />

rescission of DACA under the APA, like the district court<br />

in Texas I. If an agency fails to consider important aspects<br />

of the problem before its action, then the agency action is<br />

arbitrary and capricious. In Regents, then-DHS director<br />

Duke addressed only the element of benefit but not the<br />

element of forbearance in DACA, and her explanation was<br />

thus considered inadequate. Such inadequacy constituted<br />

?arbitrary and capricious? agency action, a violation of the<br />

substantial APA clause. 29<br />

The Importance of Standing Issues<br />

The resolution of standing inquiries was key to all three<br />

cases: it demonstrated the court?s logic and effort to<br />

prevent itself from becoming a pure battleground for<br />

political and policy debates, especially because these cases<br />

are litigation between state and federal governments. As<br />

quasi-sovereign entities, state governments are entitled to<br />

protect its citizens and its own interests, but they are not<br />

DACA, DAPA, and a Political Battle in Court<br />

private parties, the normal litigants in lawsuits. The courts<br />

should consider how they draw the line in such cases.<br />

Executive branch initiatives in the face of congressional<br />

inaction on immigration law had instigated unforeseen<br />

disputes over the legitimacy of executive actions at court.<br />

The original failure of the DREAM Act was a direct<br />

consequence of a polarized America: uncompromisable<br />

bipartisan debate left the question unattended. The<br />

divergence persisted even with the executive branch?s<br />

efforts to address unauthorized immigration. At court,<br />

Republican state governments challenged the action of a<br />

Democratic federal administration, and Democratic state<br />

governments and institutions challenged the action of a<br />

Republican federal government. The court, which<br />

supposedly is neutral and apolitical, risked becoming<br />

another battleground for bipartisan division.<br />

Although the legal thread of the APA claims is essential to<br />

understanding the legality of DACA, DAPA and their<br />

rescission, what makes these series of cases unusual is the<br />

court?s determination of which parties have the right to<br />

challenge such a governmental action like DACA. The<br />

pivotal question boils down to who should have standing<br />

when asking for judicial review on executive agency<br />

actions. State governments and affiliated institutions are<br />

not normal litigants in lawsuits against the federal<br />

government, because they are not directly regulated by the<br />

statute in question. 30 The key issue here is that a political<br />

battle is at play in the apolitical court, where conservative<br />

and progressive state governments and institutions each<br />

challenge individual governmental action that goes against<br />

their interest and ideology, especially in an area like<br />

immigration regulation where the federal government has<br />

sole authority over. 31 Thus, this makes the series of cases<br />

28. Texas v. United States, 2021 U.S. Dist. LEXIS 133114, 29 (U.S. Dist. 2021).<br />

29. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. at 1911 (2020).<br />

30. Texas v. United States, 86 F. Supp. 3d at 648 (U.S. Dist. 2015).<br />

31. ?Epilogue: Liberal Politics in California in an ?ERA of Limits,?? California Crucible, 2012, 278, https://doi.org/10.9783/9780812206241.269.<br />

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DACA, DAPA, and a Political Battle in Court<br />

more than just about illegal immigration, but about how<br />

the court developed a system to evaluate who can request<br />

judicial review of governmental action in court. Texas I,<br />

Regents, and Texas II can serve as a case study of how the<br />

court has handled the issue of standing of state<br />

governments against the federal government in the realm<br />

over which the federal government has entire control. It is<br />

essential to investigate how the court has tried and<br />

managed to stay neutral and to avoid becoming the pure<br />

battlefield for political debate in such litigation.<br />

Standing issues are important because they are the<br />

prerequisite for federal court jurisdiction: they ensure that<br />

only parties interested enough in the outcome of the<br />

lawsuit can participate. Standing is a constitutional<br />

requirement for federal court jurisdiction that restricts the<br />

court to only the resolution of disputes between parties that<br />

have stakes in the outcome of the lawsuit. The parties to a<br />

case must have a real motivation to prosecute the case and<br />

advance arguments, so that the court remains a place to<br />

resolve ?actual case or controversy.? Article III, Section 2<br />

of the Constitution illustrates the basics of the case or<br />

controversy principle; the most important of all is that the<br />

plaintiff must have suffered or will suffer ?injury in fact?<br />

from the alleged complaint. 32 This principle safeguards the<br />

court from becoming the place for generalized or purely<br />

ideological debates.<br />

In this unusual series of cases concerning DACA, DAPA,<br />

and relevant rescissions, the Court had to carefully enforce<br />

the case or controversy requirement to avoid becoming<br />

grounds for pure political battles. First, Texas I, Texas II,<br />

and Regents are unusual because the plaintiffs in all three<br />

cases are ?third parties?: none of them are directly<br />

regulated by the agency actions in question. DACA and<br />

DAPA all pertain to unauthorized immigrant individuals,<br />

but the plaintiffs are state governments and institutions<br />

who employed DACA recipients. Second, the relationship<br />

between state, federal government, and citizens in a<br />

federation makes the standing issues more precarious to<br />

resolve. To form a federation, state governments must give<br />

up certain rights, such as the right to protect its borders and<br />

enter war. This puts state governments in a quasi-sovereign<br />

position, where they rely entirely upon the federal<br />

government on the issue of immigration regulation but<br />

retain a fair level of sovereignty. 33 Since citizens are<br />

citizens of both the state and the federal governments, the<br />

court must resolve if the state government can vest its<br />

standing in the interests of its citizens. The quasi-sovereign<br />

position should be taken into consideration when state<br />

governments sue the federal government. The issue is<br />

further complicated by the political stance of the state<br />

government. States are commonly characterized as blue,<br />

red, or swing states based on their political inclination.<br />

This makes the standing issues particularly delicate;<br />

granting standing by the traditional standards may result in<br />

an abuse of litigation for political purposes.<br />

Relevant standards of standing include traditional<br />

particularized injury test and prudential test, as well as<br />

nontraditional parens patriae and abdication standing tests.<br />

The court examined particularized injury standing,<br />

prudential standing, the APA standing, parens patriae<br />

standing, and abdication standing to defend itself against<br />

the possible landslide to turn into a field of bipartisan<br />

political battle. The plaintiff states presented two<br />

categories of arguments for standing: direct, particularized<br />

injury claims and third-party injury claims on behalf of<br />

their citizens. Traditional tests of standing include<br />

particularized injury standing and prudential standing.<br />

They are pertinent to the court?s subject matter jurisdiction<br />

and are used prevalently in all sorts of federal litigation. 34<br />

32. Texas v. United States, 86 F. Supp. 3d at 614 (U.S. Dist. 2015).<br />

33. Texas v. United States, 809 F. 3d at 162 (5th Circ. 2015).<br />

34. Texas v. United States, 86 F. Supp. 3d at 614 (U.S. Dist. 2015).<br />

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Particular to this series of cases were the APA standing<br />

issues, since the core of the plaintiff?s arguments rested on<br />

the APA. APA standing establishes reviewability under the<br />

APA. The court, conscious of the delicacy of granting state<br />

governments standing, took the standing inquiry beyond<br />

these usual tests to formulate a controlling and replicable<br />

framework of standing review in litigation concerning<br />

states against the federal government in political<br />

divergence. The court ultimately developed two additional<br />

standing tests from investigating and challenging<br />

precedents: parens patriae standing and abdication<br />

standing. Both tests concern the precarious relationship<br />

between quasi-sovereign states, the federal government,<br />

and citizens; they are intended to resolve standing issues in<br />

third-party injury claims on behalf of citizens.<br />

To approach the plaintiffs? direct injury standing claims,<br />

the court utilized particularized injury and prudential<br />

standing. The particularized injury standing inquiry is the<br />

most widely applied test in federal courts that draws<br />

directly from Article III requirements: the plaintiff must<br />

suffer or will suffer from a concrete and particularized<br />

injury from the alleged complaint, there must be a causal<br />

connection between the injury and the complaint, and<br />

redressability. 35<br />

Direct injury is often the most straightforward channel to<br />

standing in litigation of private parties. Alternatively, the<br />

federal courts follow prudential principles of standing: the<br />

party must demonstrate its own legal rights and interests<br />

that is more than a generalized grievance, and the<br />

complained-of conduct must be within the party?s zone of<br />

interest. The zone of interest requirement states that the<br />

plaintiffs must come within the zone of interest to be<br />

protected or regulated by the statute or constitutional<br />

guarantee in question. 36<br />

DACA, DAPA, and a Political Battle in Court<br />

In this case, the INA is the relevant statute with regard to<br />

the exclusion and removal of unauthorized immigrants.<br />

The law establishes that unsanctioned entry into the<br />

country is a crime, and those who have either entered<br />

unlawfully or overstayed their permission are subject to<br />

deportation. The Supreme Court had long recognized that<br />

the state governments have an interest to enforce the<br />

INA. 37<br />

APA standing requirements are to establish APA claims<br />

and are only marginally related to the framework of<br />

standing this paper investigates. It is therefore only briefly<br />

introduced here and will not appear in case discussions.<br />

For reviewability of agency actions under the APA, the<br />

states need to prove standing under the APA, which<br />

requires the party to show that it has suffered or will suffer<br />

an injury in fact and satisfied the prudential requirement of<br />

the interest falling within the zone of interest. Plaintiffs<br />

seeking review of agency action are offered a favorable<br />

presumption of standing. 38<br />

To probe the plaintiffs?third-party injury standing claims,<br />

the court developed two standing tests that delineate the<br />

delicate relationship between state and federal<br />

governments over the issue of unauthorized immigration:<br />

(1) parens patriae standing, and (2) abdication standing.<br />

Parens patriae standing is the doctrine of protection by the<br />

government of its citizens; this principle enables a state to<br />

bring a lawsuit to protect the interests of its citizens, even<br />

when it cannot show particularized injury. The<br />

requirements of parens patriae standing for a state<br />

government against the federal government is twofold,<br />

illustrated by Massachusetts v. Mellon (1923): the purpose<br />

of the suit should be to seek adherence to or enforcement<br />

of a federal statute, and the state must identify a<br />

quasi-sovereign interest that is harmed by the alleged<br />

35. Texas v. United States, 809 F. 3d at 161 (5th Circ. 2015).<br />

36. Ibid.<br />

37. Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. at 1899 (2020).<br />

38. Texas v. United States, 86 F. Supp. 3d at 615 (U.S. Dist. 2015).<br />

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DACA, DAPA, and a Political Battle in Court<br />

under-enforcement. A quasi-sovereign interest is a tricky<br />

component. Its defining characteristics are not<br />

consolidated in case law, and they have experienced vast<br />

expansion over time. There are two rough categories: the<br />

first category is the health and well-being of its citizens,<br />

including physical and economic aspects; the second<br />

category is ?not being discriminatorily denied its rightful<br />

status within the federal system.? 39<br />

Abdication standing is given by the federal government<br />

asserting sole authority over a certain area of American<br />

life, excluding any authority or regulation by a state, and<br />

yet subsequently refusing to act in that area. This offers the<br />

states standing to challenge the federal abdication to<br />

protect itself and the interests of its citizens. The plaintiffs<br />

need to show that the state government is powerless in<br />

such an area and that the federal government has declined<br />

to act. 40<br />

Alternatively, some lower courts in these series of cases<br />

refer to abdication standing as Massachusetts v. E.P.A.<br />

(2007) standing, which grants state governments ?special<br />

solicitude? to sue the federal government, even though<br />

they are not private individuals. 41 ?Special solicitude? is<br />

essentially the same as abdication. In the original case,<br />

Massachusetts sued the EPA for the under-enforcement of<br />

greenhouse gas emissions on new motor vehicles, which<br />

purportedly contributed to a rise in sea levels and a loss in<br />

the state?s coastal land. The court decided that<br />

Massachusetts had a special solicitude to standing in order<br />

to protect its quasi-sovereign proprietary interest as a<br />

landowner because the Clean Air Act (CAA) specified that<br />

its enforcement is to sole authority of the EPA under the<br />

federal government. 42 By parallel, because the INA<br />

provisions and Supreme Court precedents supported that<br />

the federal government has sole authority to enforce<br />

immigration law, states like Texas should have a special<br />

solicitude to standing as well.<br />

Analysis<br />

The Court went beyond typical standing tests in Texas I,<br />

Texas II, and Regents to remain neutral. In all three cases<br />

the Court recognized that typical standing tests were<br />

insufficient to determine if a state government should have<br />

standing in litigation against federal governmental action<br />

and thus engaged in comprehensive analysis to resolve<br />

standing issues. The court needed more than traditional<br />

methods of standing to ensure the proper functioning of the<br />

court as settling the dispute of only an actual case or<br />

controversy. The detailed court opinions of Texas I, Texas<br />

II, and Regents illustrate how the court avoided becoming<br />

platforms for pure political and policy debates.<br />

The court used the basic particularized injury requirement<br />

to evaluate whether the plaintiffs had demonstrated valid<br />

standing to direct injury claims on its face. The basic<br />

particularized injury requirement is a strict test to evaluate<br />

whether a plaintiff has demonstrated valid standing to<br />

direct injury claims and is thoroughly analyzed in all three<br />

cases. Overall, decisions in Texas I and Texas II exhibited<br />

great parallel and will be discussed by comparison.<br />

Decisions in Regents also demonstrated the court?s<br />

coherent logic to apply the particularized injury test.<br />

Plaintiff states in Texas I satisfied particularized injury<br />

standing because one of the plaintiffs, the state of Texas,<br />

had successfully shown a concrete and particularized<br />

injury in connection with the government?s action to pass<br />

DAPA and Expanded DACA, and the remedy sought<br />

would prevent the alleged harm. Texas argued that the<br />

39. Ibid., 86 F. Supp. 3d at 626.<br />

40. Ibid., 86 F. Supp. 3d at 637.<br />

41. Texas v. United States, 809 F. 3d at 151 (5th Circ. 2015).<br />

42. Massachusetts v. EPA, 549 U.S. 497, 505 (2007).<br />

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DHS directive would cause direct and significant<br />

economic injury to its fiscal interest, because the programs<br />

would enable a new class of unauthorized immigrants who<br />

were otherwise ineligible to apply for driver?s licenses.<br />

Under Texas state law, the government was required to<br />

cover all remaining costs for creating licenses apart from<br />

the small portion of fees paid by the applicants. This would<br />

result in more than $100 net loss for each license<br />

processed. With the DHS Directive making a new group of<br />

aliens eligible for driver?s licenses, there would be an<br />

increase in fiscal deficits. 43 This was a concrete and<br />

particularized injury for Texas that was directly caused by<br />

the passage of DAPA and DACA extension. The remedy<br />

sought by the plaintiffs? a preliminary injunction that<br />

prevents the programs from going into effect? would<br />

sufficiently address the harm that the state was about to<br />

suffer.<br />

Likewise, although the District Court of Southern Texas in<br />

Texas II does not specifically address the issue of standing<br />

from a particularized injury standpoint, it was clear that the<br />

plaintiffs met these requirements. DACA, like DAPA and<br />

Expanded DACA in Texas I, caused ?institutional injury to<br />

the [states?] lawmaking authority? and fiscal injury to the<br />

economic base of the state. The injury could be addressed<br />

by the alleged action? the enjoinment of DACA. 44<br />

In Regents, the plaintiff states had established<br />

particularized injuries caused by the rescission of DACA.<br />

For at least one of the plaintiffs, the state of California,<br />

replacing already-employed DACA recipients would incur<br />

additional hiring and training costs. Other plaintiffs such as<br />

Maine would lose $96,000 in annual and local tax base.<br />

These injuries were directly attributable to the DHS<br />

rescission of DACA. These injuries could be remedied by<br />

DACA, DAPA, and a Political Battle in Court<br />

the plaintiffs' alleged claims? vacating the rescission of<br />

DACA. 45<br />

The court?s acceptance of direct injury claims was fairly<br />

unambiguous, because the plaintiffs in all three cases could<br />

pinpoint particularized injuries based on their institutional<br />

identities. Standing to direct and particularized injury<br />

claims were addressed on behalf of the plaintiffs<br />

themselves rather than third parties.<br />

The court applied prudential standing standards to affirm a<br />

direct link between the plaintiffs and the alleged<br />

complaints. In addition to particularized injury, the court<br />

considered prudential standing specifically to ensure that<br />

the alleged complaints from the plaintiffs were not entirely<br />

rested upon third parties and that the plaintiffs were<br />

protected or regulated entities of the statute at issue. This<br />

test requires a less strict direct injury than the<br />

particularized injury test, but it still emphasizes that the<br />

states should have sufficient stake in the outcome of the<br />

case. Here, because the key issue was unauthorized<br />

immigration, the statute at issue was the INA in all three<br />

cases. 46<br />

Plaintiffs in Texas I satisfied requirements for prudential<br />

standing, because the plaintiffs were within the zone of<br />

interest of protection by the INA and the states were<br />

seeking to protect their own interests. The direct injury<br />

caused by the DHS Directive issuing DAPA and Expanded<br />

DACA was distinct from a ?generalized grievance.? A<br />

?generalized grievance? is a harm shared equally by all or<br />

a large class of citizens. 47 As discussed in the<br />

particularized injury requirement, the state of Texas had<br />

proved a direct, personalized injury to their fiscal interests<br />

from the government?s action, and that injury was not<br />

rested upon the regulated unauthorized immigrants. The<br />

43. Texas v. United States, 86 F. Supp. 3d at 617 (U.S. Dist. 2015).<br />

44. Texas v. United States, 2021 U.S. Dist. LEXIS 133114, 29 (U.S. Dist. 2021).<br />

45. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d at 1026 (U.S. Dist. 2018).<br />

46. Texas v. United States, 86 F. Supp. 3d 591, 614 (U.S. Dist. 2015).<br />

47. Ibid., 86 F. Supp. 3d at 615.<br />

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DACA, DAPA, and a Political Battle in Court<br />

The plaintiff states were within the zone of interest to be<br />

protected by relevant immigration statutes. It was the duty<br />

of the federal government to protect the borders and<br />

enforce the immigration laws. DAPA undermined the<br />

guidelines to deal with unauthorized immigration set forth<br />

in the INA, which Congress had entrusted the government<br />

to enforce and protect the states. 48 This fact alone put the<br />

plaintiffs within the zone of interest.<br />

Applying similar logic, the states in Texas II had shown<br />

that they suffered more than generalized grievances and<br />

that they were within the zone of interest protected by the<br />

INA. The damages? institutional and economic<br />

injuries? proposed by the states were not entirely rested<br />

on the third parties, the DREAMers, but were relevant to<br />

the plaintiffs themselves. Because the federal government<br />

has sole authority to enforce the INA that supposedly<br />

protects the borders of the states, the plaintiffs were within<br />

the zone of interest. 49 The Fifth Circuit decision in Texas I<br />

was a controlling precedent that could help lay out the<br />

potential arguments if Texas II is ever argued at higher<br />

courts.<br />

Plaintiffs in Regents sufficed the requirements of<br />

prudential standing. They did not propose generalized<br />

grievances but had shown concrete injuries that rested on<br />

their own interests. Their interests were not ?so marginally<br />

related? to the purposes implicit in the INA, except for<br />

Maine and Minnesota?s, whose claims were dismissed.<br />

Local and state governments San Jose, Santa Clara,<br />

California, and Maryland and state institution the<br />

University of California were employers of current DACA<br />

recipients, who were entitled to work authorizations. 50 If<br />

DACA was rescinded, they would lose such authorizations<br />

and the employers would either be subject to criminal and<br />

civil liability for knowingly employing unauthorized aliens<br />

laid out in the detailed INA provisions or suffer from<br />

financial loss. 51 Therefore, these plaintiffs were within the<br />

zone of interest to be protected and regulated by the INA.<br />

The court applied the prudential standards to test how<br />

interested plaintiffs were in the dispute and, specifically, to<br />

the statute relevant to the dispute in question. In evaluating<br />

the standing of plaintiffs in a case challenging an agency<br />

action, the court first went about identifying the statute<br />

relevant to the alleged claims and then assessing how<br />

interested the parties are in the statute. The absence of this<br />

step may result in allowing purely ideological arguments to<br />

advance in court.<br />

The court utilized parens patriae standing as an avenue to<br />

assess the state government?s legality to challenge federal<br />

government on behalf of its citizens. Parens patriae,<br />

meaning ?parent of the country,? grants state governments<br />

position as parents to their citizens; this suggests that state<br />

governments could root their the injury of its citizens<br />

rather than or in addition to a direct injury. Parens patriae<br />

standing was discussed at length in Texas I and Texas II;<br />

the court ultimately rejected the parens patriae argument<br />

in Texas I but accepted it in Texas II. The key determinant<br />

was whether the damage was ripe, which requires the<br />

agency's decision to be final.<br />

In Texas I, plaintiffs alleged that they were entitled to<br />

parens patriae standing because they were suing to protect<br />

the economic interests of their residents from the federal<br />

government?s actions by seeking to enforce the INA; the<br />

district court, however, ultimately rejected such an<br />

argument because the damage was not ripe. The economic<br />

interests of residents belong to the first category of<br />

quasi-sovereign interests, the health and well-being of<br />

48. Texas v. United States, 809 F. 3d 134, 147 (5th Circ. 2015).<br />

49. Ibid., 809 F. 3d at 152.<br />

50. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d 1011, 1026 (U.S. Dist. 2018).<br />

51. Ibid., 279 F. Supp. 3d at 1036.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


citizens. On its face, this case satisfied the two<br />

requirements for parens patriae standing, but the court<br />

rejected the plaintiffs?argument after careful investigation.<br />

The states maintained that DAPA and Expanded DACA<br />

would introduce more labor market competition for legal<br />

residents, because employers were not required to provide<br />

certain healthcare benefits to DACA recipients under the<br />

ACA, making them lower-cost labor. The court decided<br />

that the economic damages were at best speculative,<br />

because the government had not yet released any action to<br />

exempt employers from providing mandatory benefits for<br />

DAPA recipients and inferences of damage merely based<br />

on past practices were premature. 52 The Supreme Court has<br />

long held the tradition to discourage the resolution of<br />

controversies that are not ripe: courts should avoid<br />

?entangling themselves in abstract disagreements . . . until<br />

an administrative decision has been formalized and its<br />

effects felt in a concrete way.? 53 The district court<br />

discussed in length but finally declined to accept parens<br />

patriae as an independent ground for standing, and the<br />

Fifth Circuit did not address this question.<br />

The district court in Texas II accepted the plaintiffs?<br />

allegation of parens patriae standing, because, as opposed<br />

to the economic interests in Texas I, the controversies were<br />

ripe. Based on prior cases, higher courts are unlikely to<br />

overturn this opinion on parens patriae standing. As<br />

previously stated, DACA recipients were expressly barred<br />

from ACA?s insurance mandates, whereas DAPA recipients<br />

were not. 54 Thus, the controversy regarding DACA was<br />

ripe. Because the economic interests in Texas II was a<br />

legitimate quasi-sovereign interest that was caused by the<br />

under-enforcement of the INA, higher courts are likely to<br />

uphold the district court?s decision on parens patriae<br />

standing. 55<br />

Considering the precarious relationship between the state,<br />

its citizens and the federal government, the court had been<br />

cautious when awarding parens patriae standing: the<br />

crucial takeaway was that although citizens? economic<br />

interests were valid quasi-sovereign interests, the court<br />

could not tolerate speculative claims. Comparing the<br />

particularized injury test and the parens patriae test in<br />

Texas I demonstrates that the court applied a stricter<br />

standard for injury when considering indirect claims.<br />

While plaintiffs could point to the effects of DACA when<br />

they made particularized injury claims against DAPA and<br />

Expanded DACA, they could not make use of the same<br />

reference in the parens patriae argument. The court<br />

employed abdication/Mass. v. EPA standing to protect the<br />

rights of the state government?s quasi-sovereign status<br />

upon forming a union. Abdication standing is the most<br />

unequivocal standing test to show how the state<br />

government can assert claims against the federal<br />

government in an area that the state is powerless in. The<br />

district court opinion in Texas I called abdication standing<br />

?[t]he most provocative and intellectually intriguing<br />

standing claim.? Here, the states sued the federal<br />

government as a quasi-sovereign state. 56 In Mass. v. EPA,<br />

the court precisely characterized the rights and powers of<br />

state and federal governments:<br />

DACA, DAPA, and a Political Battle in Court<br />

When the states joined the union, they surrendered<br />

some of their sovereign prerogatives over immigration.<br />

They cannot establish their own classifications of<br />

aliens, just as ?Massachusetts cannot invade Rhode<br />

52. Texas v. United States, 86 F. Supp. 3d 591, 628 (U.S. Dist. 2015).<br />

53. Ibid.<br />

54. Texas v. United States, 2021 U.S. Dist. LEXIS 133114, 36 (U.S. Dist. 2021).<br />

55. Ibid., 2021 U.S. Dist. LEXIS 133114 at 34.<br />

56. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


DACA, DAPA, and a Political Battle in Court<br />

Island to force reductions in greenhouse gas emissions<br />

[and] cannot negotiate an emissions treaty with China<br />

or India.? 57<br />

The court recognized that the states are powerless in<br />

certain policy areas. When a state challenges the federal<br />

government, the court mainly judges if the federal<br />

government is silent over the area in which it exerts full<br />

authority. The Supreme Court has clearly voiced in<br />

Arizona v. United States (2012) that state governments<br />

cannot enforce immigration laws in any respect. 58<br />

The two elements of abdication standing, the<br />

powerlessness of the state in the area in discussion and the<br />

rejection to act of the federal government, were fairly<br />

straightforward to prove in Texas I and Texas II. In both<br />

Texas I and Texas II, it was clear that the states had<br />

virtually no power to protect themselves from the effects<br />

of unauthorized immigration, because they could not<br />

enforce immigration laws. In Arizona, the federal<br />

government sued the state of Arizona when it attempted to<br />

enforce locally enacted immigration restrictions, although<br />

the state bore direct damages from unauthorized<br />

immigration. 59 The second element was satisfied by the<br />

DHS?s reluctance to deport removable personnel over the<br />

years and its outright rejection to enforce the INA.<br />

The court in Regents briefly mentioned another aspect of<br />

Massachusetts v. EPA: similar to prudential standing<br />

standards, the inquiry focused on whether the plaintiffs had<br />

sufficient personal stakes in the outcome of the case or<br />

controversy ?to ensure that the parties will be truly adverse<br />

and their legal presentations sharpened.? 60 It was also<br />

analogous to the particularized injury requirement. The<br />

court in this case did not distinguish a state ?special<br />

solicitude? from particularized injury or prudential<br />

standing but still stressed the importance of the state<br />

government?s interest in litigation that disputes the agency<br />

action under the federal government. This line of reasoning<br />

suggests that it is also a quasi-sovereign interest of the<br />

state to ensure that their essential interests, the power of<br />

enforcement of which is transferred to the federal<br />

government upon forming a union, are duly protected by<br />

the union. 61 Abdication standing offers state governments<br />

protection to retain their entitled rights, even though they<br />

are not legally permitted to carry out the execution of these<br />

rights.<br />

Parens patriae and abdication standing? these two other<br />

?nontraditional? grounds for standing both indicate a<br />

state?s quasi-sovereign concerns as part of the federal<br />

system and recognize the need for states to sue the federal<br />

government for such concerns. To form a federation, states<br />

give up rights such as regulating immigration, but they still<br />

maintain a quasi-sovereign status that, more often than not,<br />

enables them to bring suit against the federal government<br />

for both their own institutional interests and the interests of<br />

their citizens.<br />

Conclusion<br />

Apart from the traditional particularized injury and<br />

prudential standing tests, the court developed and carefully<br />

exercised two additional standing tests? parens patriae<br />

standing and abdication standing? to seek to remain<br />

apolitical in a politically charged series of cases. In Texas I,<br />

Texas II, and Regents, the court presented a comprehensive<br />

investigation of standing issues when state governments,<br />

which are not normal litigants in lawsuits, challenged the<br />

legality of the federal government?s agency action. Along<br />

with each test of standing, the court decisions illustrated<br />

the court?s main concerns and objectives for each of the<br />

tests applied. Both conservative and progressive states<br />

asserted direct and indirect injury claims to showcase their<br />

legitimacy to standing. The court realized the urgent need<br />

57. Massachusetts v. EPA, 549 U.S. 497, 520 (2007).<br />

58. Arizona v. United States, 567 U.S. 387, 418 (2012).<br />

59. Ibid., 567 U.S. at 420.<br />

60. Regents of the Univ. of Cal. v. United States, Dept. of Homeland Sec., 279 F. Supp. 3d at 1033 (U.S. Dist. 2018).<br />

61. Massachusetts v. EPA, 549 U.S. at 514 (2007).<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


to elaborate beyond the existing tests of standing to stand<br />

neutral.<br />

Traditional tests of standing served to assess the standing<br />

of the plaintiff states as if they were normal private<br />

litigants. The particularized injury and prudential standing<br />

tests are the court's effects to make sure that the states, no<br />

matter where they stand on the political spectrum, are not<br />

abusing the right to sue, just as the private individual is<br />

forbidden from bringing a lawsuit on purely ideological<br />

grounds no matter what values they hold. The plaintiffs?<br />

claims cannot rest entirely upon third parties and must be<br />

directly affected by the agency action.<br />

Both nontraditional methods specifically gauge the<br />

delicate quasi-sovereign status of state governments within<br />

the union. The court considered the convoluted<br />

relationship between state government, federal<br />

government, and the citizens. The court then determined if<br />

a state government was entitled to sue the federal<br />

government to protect the rights of itself and its citizens,<br />

under the fact that state governments gave up certain rights<br />

and powers in forming a federation. In the case of<br />

immigration, where the federal government has sole<br />

authority to regulate, the state has a quasi-sovereign<br />

interest to have its physical borders and economic interests<br />

protected.<br />

DACA, DAPA, and a Political Battle in Court<br />

the area of illegal immigration has been the hotbed for<br />

such political debates. Therefore, beyond traditional tests<br />

for standing, the court incorporated the quasi-sovereign<br />

status of states into the standing tests and ultimately<br />

cultivated a more well-rounded system for standing issues<br />

in the context of state government as litigants. The system<br />

treated state governments in litigation more demandingly<br />

than private citizens, because state governments, as entities<br />

of tremendous political power, could potentially abuse<br />

standing to sue on a larger scale. The system also<br />

acknowledged that state governments should be entitled to<br />

a certain level of standing to protect the interests of itself<br />

and its citizens.<br />

The court, however, utilized a stricter standard for injury<br />

when evaluating indirect injury claims. The plaintiffs<br />

cannot assume indirect injury by extrapolating from past<br />

governmental practices but can make an argument using<br />

historical data when establishing direct injury claims.<br />

The court walked a fine line between granting state<br />

governments standing to rightfully protect their rights and<br />

overpowering state governments as litigants that the court<br />

becomes the ground for mere political battles. Particularly,<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />





Laila Rodenbeck '22<br />


Unlike traditional militaries, which face a range of controls over their actions? from internal checks<br />

and balances to international laws? no agency or legislative overseeing body exists to control the<br />

actions of private military contractors (PMCs) beyond their shareholders. Hired through different<br />

government departments, these independent contractors fall outside the legal domain of both the U.S.<br />

military and the U.S. government, leading to diffused chains of responsibility and accountability. This<br />

essay uses the Abu Ghraib prison scandal as a case study to investigate the complex criminal<br />

accountability of PMCs. It argues that while certain laws are available to prosecute PMCs, they are<br />

limited by numerous exceptions? exceptions which have unfortunately weakened the case of the<br />

victims in the Abu Ghraib scandal.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

Introduction<br />

What we see in these images, and hear from the accounts<br />

of activities that went on at Abu Ghraib? a U.S. Army<br />

The soldiers zip-tied the prisoners? hands behind their<br />

prison in Iraq used to detain captured Iraqis? are war<br />

backs and hooded them as they marched them single-file<br />

into the cell block at Abu Ghraib prison. 1 crimes recognized under U.S. and international law.<br />

It was a still<br />

5 Yet<br />

over a decade later, and after six separate military<br />

<strong>No</strong>vember night in 2003. Husein Mutar, an Iraqi detainee,<br />

investigations, only a handful of low-level military<br />

remembers it clearly: ?They threw us in a pile, and then I<br />

heard footsteps running.? 2 personnel have been held responsible for these atrocities<br />

A soldier dived on top of him,<br />

committed.<br />

hitting him on his face and knees. Through his hood, he<br />

6 Multiple lawsuits have been filed on behalf of<br />

the victims of the Abu Ghraib scandal, most recently Al<br />

could hear the men around him crying, while the guards,<br />

Shimari, et al. v. CACI; however, the search for redress<br />

?screaming and laughing,? ordered the prisoners to strip.<br />

before the court has so far proved fruitless. Only one case,<br />

Anyone who refused would be cut with a knife. ?All I<br />

Al-Quraishi v. Nakhla and L-3 Services, Inc. (which was<br />

could hear was the screaming of people around me and<br />

myself screaming,? Husein would later testify. 3 settled confidentially out of court), has granted<br />

He and the<br />

compensation to victims of torture and prison abuse in Iraq<br />

others were piled into a human pyramid, after which they<br />

under U.S. occupation.<br />

were forced to masturbate.<br />

Investigators repeatedly stumbled upon one of the primary<br />

Images of that night, and many others at Abu Ghraib,<br />

reasons for this in their inquiries: Several of the<br />

surfaced in 2004, achieving global media coverage and<br />

perpetrators were not soldiers but ?independent corporate<br />

sparking demands for accountability from around the<br />

contractors,? and thus were outside the scope of the<br />

world. Looking at the photographs, one can see naked<br />

military?s legal jurisdiction.<br />

inmates being paraded on leashes, stacked into piles, and<br />

7 By spring 2004, the U.S.<br />

government employed over 20,000 private contractors<br />

hung from their wrists, often with U.S. military personnel<br />

from more than 80 different corporations in Iraq, engaging<br />

laughing and posing beside them. The photographs are a<br />

them in a wide range of military capacities.<br />

disturbing, gruesome reminder of humanity?s ability to<br />

8 More than<br />

half of all the interrogators at Abu Ghraib were employees<br />

inflict suffering and torture. However, their shock value<br />

of CACI International Inc., a private military contractor<br />

lies not only in their depiction of torture and abuse, but<br />

(PMC), while employees of Titan Corp made up all the<br />

also in the patriotic excitement of the torturers: the uneasy<br />

translators who enabled the interrogators to communicate<br />

sense of America ?out of place,? a contradictory image of<br />

?the liberators engaged in torture.? 4<br />

with the detainees. According to the army?s reports, at least<br />

16 of the 44 incidents of abuse alleged to have happened at<br />

1. Kate Zernike, ?Detainees Describe Abuses by guard in Iraq Prison,? New York Times, January 12, 2005, https://www.nytimes.com/2005/01/12/world/detaineesdescribe-abuses-by-guard-in-iraq-prison.html.<br />

2. Ibid.<br />

3. Ibid.<br />

4. Michelle <strong>Brown</strong>, ??Setting the Conditions?for Abu Ghraib: The Prison Nation Abroad,? American Quarterly 57, no. 3 (September 2005): 973,<br />

https://www.jstor.org/stable/40068323.<br />

5. The Editorial Board, ?Will Anyone Pay for Abu Ghraib?? New York Times, February 5, 2015, https://www.nytimes.com/2015/02/05/opinion/will-anyone-pay-forabu-ghraib.html.<br />

6. Peter W. Singer, ?The Contract the Military Needs to Break,? Brookings Institution, September 12, 2004, https://www.brookings.edu/opinions/the-contract-themilitary-needs-to-break/.<br />

7. Ibid.<br />

8. Mark O. Hedahl, ?Outsourcing the Profession: A look at Military Contractors and their Impact on the Profession of Arms,? Staff paper presented at the Joint Services<br />

Conference on Professional Ethics, Springfield VA, http://isme.tamu.edu/JSCOPE05/Hedahl05.html.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

Abu Ghraib involved private contractors. 9<br />

shift of responsibility and liability for human rights<br />

violations from the government to the private sector.<br />

Unlike traditional militaries, which face a range of controls<br />

over their actions? from internal checks and balances to This essay uses the Abu Ghraib prison scandal as a case<br />

international laws? no agency or legislative overseeing study through which to investigate the complex nature of<br />

body exists to control the actions of private military the criminal accountability of private military contractors.<br />

contractors (PMCs) other than their shareholders. Hired It argues that while certain laws are available to prosecute<br />

through different government departments, independent PMCs, they are limited by numerous exceptions, which<br />

contractors often fall outside the legal domain of both the have unfortunately weakened the case of the victims in the<br />

U.S. military and the U.S. government, leading to diffused Abu Ghraib scandal. In the first section, the paper traces<br />

chains of responsibility and accountability. While U.S. the history of PMCs and describes the sources of their<br />

military personnel can be prosecuted for crimes they proliferation. The second section subsequently examines<br />

commit under the Uniform Code of Military Justice the involvement of PMCs in the abuses committed at Abu<br />

(UCMJ), this code historically has not applied to those Ghraib. Finally, the third section analyzes the legal<br />

working for other entities in instances when war has not avenues through which PMCs might be held liable for<br />

been formally declared. 10 Consequently, the possibility of criminal and civil offenses, drawing from military as well<br />

legal recourse against these corporations is extremely as civil law.<br />

narrow: The activities of PMCs occupy a ?legal loophole,?<br />

The Rise of the Private Military Industry<br />

a space of exceptionalism under which they encounter<br />

limited legal accountability. 11<br />

Hiring someone else to fight your wars for you is as old as<br />

the act of war itself. 13 Indeed, practically every empire in<br />

Clearly, the story of what happened at Abu Ghraib is<br />

history, from the Byzantine to the British, contracted<br />

incomplete without an account of the role played by<br />

outsider forces to wage their battles. In certain periods,<br />

private contractors in Iraq. But more importantly, if redress<br />

these were mercenaries or individual soldiers of fortune<br />

is to be found for the victims of these crimes, it is also<br />

willing to fight for the highest bidder; in others, outside<br />

crucial to understand the nature of PMCs? legal<br />

forces constituted organized troops. As Peter Singer, senior<br />

exceptionalism. Where did this relative impunity come<br />

fellow at the Brookings Institution and author of the book<br />

from? And how can it be curtailed? These questions are<br />

Corporate Warriors, has observed, the monopoly of the<br />

particularly pressing considering the growing centrality of<br />

state over violence may even be ?the exception in world<br />

private contracting in American warfare. Since 2009, the<br />

history, rather than the rule.? 14<br />

ratio of contractors to troops in war zones has increased<br />

from one to one to approximately three to one. 12 Such<br />

In the United States, private military contractors have<br />

reliance on outsourcing to wage war suggests a troubling<br />

supported the military as far back as the Revolutionary and<br />

Civil Wars. 15 During the Revolutionary War, the<br />

9. Singer.<br />

10. Ibid.<br />

11. Anna Leander, ?The Paradoxical Impunity of Private Military Companies: Authority and the Limits to Legal Accountability,? Security Dialogue, 41, no. 5 (October<br />

2010): 467-490, https://www.jstor.org/stable/26301165.<br />

12. Sean McFate, ?America?s Addiction to Mercenaries,? Atlantic, August 12, 2016,<br />

https://www.theatlantic.com/international/archive/2016/08/iraq-afghanistan-contractor-pentagon-obama/495731/.<br />

13. P.W. Singer, Corporate Warriors: The Rise of the Privatized Military Industry, (Ithaca, NY: Cornell University Press, 2007), 19.<br />

14. Ibid.<br />

15. Sarah K. Cotton et al., ?Private Military and Security Contractors Are <strong>No</strong>t a New Phenomenon: A Brief History of Military Privatization,? in Hired Guns: Views<br />

About Armed Contractors in Operation Iraqi Freedom, (Santa Monica, CA: RAND Corporation, 2010), 9?18, http://www.jstor.org/stable/10.7249/mg987srf.10.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

Continental Army depended on contractors to provide<br />

transportation and engineering services, construction,<br />

clothing, and weapons. 16 However, the United States?use<br />

of private military contracting greatly expanded in the<br />

twentieth century, in part due to advances in military<br />

technology. During World War II, the increased complexity<br />

of military technology meant that the ?manufacturer?s<br />

technical representative? became a prominent actor on the<br />

battlefield for the first time. 17 As Charles Shrader, former<br />

executive director of the Society for Military History, has<br />

experience in Vietnam led the U.S. military in 1985 to<br />

implement Army Regulation (AR) 700-137, ?Logistics<br />

Civil Augmentation Program (LOGCAP),? a directive<br />

which aimed ?to pre-plan for the use of civilian contractors<br />

to perform selected services in wartime to augment Army<br />

forces.? 22 Under LOGCAP, ?operational commanders?<br />

could ?identify their requirements? and request ?contracted<br />

private sector capabilities . . . to meet mission needs during<br />

global contingency operations.? 23 A federal regulatory<br />

body would supervise the acquisition of contracts and<br />

noted, these ?tech reps? were to be found at ?airfields, oversee that LOGCAP contractor personnel were<br />

depots, and repair facilities,? and sometimes even ?in the ?authorized to use force only for individual<br />

front lines seeking solutions to technical and operational<br />

problems regarding equipment supplied by their firm.? 18<br />

In 1955, the former Bureau of Budget put forth a memo<br />

encouraging federal branches to use private channels to<br />

supply goods and services, which established a precedent<br />

for the Department of Defense (DoD) to further expand the<br />

role of PMCs during the Vietnam War. 19 In Vietnam,<br />

private contractors were deployed in greater numbers and<br />

performed a wider variety of assignments than ever before,<br />

with tasks ranging from intelligence analysis to weapons<br />

self-defense.? 24<br />

While these developments and the introduction of<br />

LOGCAP certainly propelled the emergence of the private<br />

military industry, the global trend towards privatization<br />

and the end of the Cold War were instrumental to its<br />

expansion into its current form. As Singer notes, the end of<br />

the war prompted a shock to the supply and demand of<br />

military services, creating a ?vacuum in the market of<br />

security? that private industry sought to address. 25 Budget<br />

reductions in the U.S. Army led to substantial cuts to<br />

maintenance and catering. 20 Indeed, data from the military logistical and support personnel, causing the DoD<br />

Congressional Budget Office shows that contractors made<br />

up 20 percent of the DoD workforce during the Vietnam<br />

era, double the proportion used in World War II. 21 This<br />

to increase their reliance on contractors to ?fill the gap.? 26<br />

Meanwhile, massive military demobilizations supplied a<br />

large pool of labor for the PMC industry to draw from and<br />

16. Moshe Schwartz and Joyprada Swain, ?Department of Defense Contractors in Afghanistan and Iraq: Background and Analysis,? Congressional<br />

Research Service, May 13, 2011, https://sgp.fas.org/crs/natsec/R40764.pdf.<br />

17. Cotton et al., p.10.<br />

18. Charles Shrader, quoted in Sarah K. Cotton et al. p. 9.<br />

19. Cotton et al., 9.<br />

20. Ibid.<br />

21. U.S. Library of Congress, Congressional Research Service, Training the Military to Manage Contractors During Expeditionary Operations:<br />

Overview and Options for Congress, by Moshe Schwartz, R40057 (2008), https://crsreports.congress.gov/product/pdf/R/R40057/3.<br />

22. Cotton et al.,.9.<br />

23. Department of the Army, Logistics Civil Augmentation Program, Army Regulation 700?137 (2017),<br />

https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN2768_AR700-137_Web_FINAL.pdf .<br />

24. Ibid.<br />

25. Singer, 49.<br />

26. Congressional Research Service.<br />

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Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

?a cheapening of start-up capital.? 27 PMCs consciously As Gordon L. Campbell, U.S. Army Combined Arms<br />

took advantage of these changes, as Colonel Tim Spicer, Support Command, noted in 2000 at a conference on<br />

an executive within the industry, has acknowledged: military ethics in a Virginia military base:<br />

The end of the Cold War has allowed conflicts long<br />

suppressed . . . to re-emerge. At the same time, most<br />

armies have got smaller and live footage on CNN of<br />

United States soldiers being killed in Somalia has had<br />

staggering effects on the willingness of governments to<br />

commit to foreign conflicts. We fill the gap. 28<br />

Consequently, in 1990 the DoD formalized the use of<br />

contractors within their total troops by declaring that it<br />

would ?rely on the most effective mix of the Total Force<br />

. . . including Active, Reserve, civilian, host-nation, and<br />

contract resources necessary to fulfill assigned peacetime<br />

and wartime missions.? 29<br />

In 1992, the first LOGCAP<br />

contract, LOGCAP I, was awarded to <strong>Brown</strong> and Root<br />

Services of Houston, TX (also referred to as KBR) for<br />

combat support services in Iraq. 30 Multiple subsequent<br />

LOGCAP contracts were granted over the course of the<br />

1990s, with contractors supporting Iraq Operations Desert<br />

Shield (1990) and Desert Storm (1991) under President<br />

George H.W. Bush, as well as Operations Restore Hope in<br />

Somalia (1992) and Restore Democracy in Haiti (1994)<br />

under the Clinton Administration. 31<br />

By the end of the decade, it had become clear that the<br />

military was dependent on contractors not only as support<br />

personnel, but as essential actors in day-to-day operations.<br />

The use of contractors to support military operations is<br />

no longer ?nice to have.? Their support is no longer an<br />

adjunct, ad hoc add-on to supplement a capability.<br />

Contractor support is an essential, vital part of our<br />

force projection capability? and increasing in its<br />

importance. 32<br />

Contractors became further entrenched within the U.S.<br />

military with the launching of a mass outsourcing initiative<br />

under President George W. Bush. According to a report<br />

commissioned by the Special Investigations Division of<br />

the House Government Reform Committee, $67.5 billion<br />

in noncompetitive contracts were awarded by the federal<br />

government to private contractors in 2000; a sum that rose<br />

to $145 billion in 2005? an increase of 115 percent. 33 By<br />

the later years of both the Afghanistan and Iraq Wars,<br />

private contractors made up half of the total U.S. personnel<br />

deployed. 34<br />

With this massive expansion of contractors?involvement,<br />

concerns about the regulation of PMCs began to proliferate<br />

among U.S. and international commentators in the late<br />

1990s and early 2000s. Military and legal scholars began<br />

to voice worries about the lack of applicability of U.S.<br />

criminal law outside U.S. maritime and territorial<br />

jurisdiction. The paper presented by Campbell at the<br />

27. Singer, 50.<br />

28. Ibid.<br />

29. Cotton et al., 10.<br />

30. U.S. Library of Congress, Congressional Research Service, Defense Logistical Support Contracts in Iraq.<br />

and Afghanistan: Issues for Congress,? by Valerie Bailey Grasso, RL33834 (2010), https://sgp.fas.org/crs/natsec/RL33834.pdf.<br />

31. Cotton et al., 12.<br />

32. Gordon L. Campbell, ?Contractors on the Battlefield: The Ethics of Paying Civilians To Enter Harm's Way and Requiring Soldiers To Depend<br />

Upon Them.? A paper prepared for presentation to the Joint Services Conference on Professional Ethics 2000, Springfield, Virginia, January 27-28,<br />

2000, https://web.archive.org/web/20010216030758/http://www.usafa.af.mil/jscope/JSCOPE00/Campbell00.html; Cotton et al., 11.<br />

33. Grasso, 2010.<br />

34. Reema Shah, ?Comment: Beating Blackwater: Using Domestic Legislation to Enforce the International Code of Conduct for Private Military<br />

Companies,? Yale <strong>Law</strong> Journal 123, no. 7 (May 2014): https://www.yalelawjournal.org/comment/beating-blackwater-using-domestic-legislation<br />

-to-enforce-the-international-code-of-conduct-for-private-military-companies.<br />

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Virginia conference reveals some of the sentiments aired at<br />

the time.<br />

The commander has no ?Command & Control?<br />

authority over contractor personnel. While the contract<br />

can require contractor personnel to abide by all<br />

guidance and obey all instructions and general orders<br />

applicable to U.S. Armed Forces and Department of<br />

Defense Civilians, they cannot be ?commanded.?<br />

Their relationship with the government is governed by<br />

the Terms and Conditions of their contract. . . . The<br />

lack of application of U.S. criminal law outside of our<br />

special maritime and territorial jurisdiction, creates an<br />

environment where civilians are untouchable despite<br />

commission of what would be serious crimes within<br />

the U.S. A contractor . . . could murder, rape, pillage<br />

and plunder with complete, legal unaccountability. 35<br />

Campbell?s words speak in warning of the limited<br />

accountability and control by the military of private<br />

contractors. His tone of alarm regarding the legal lacuna<br />

occupied by PMCs, still mostly conjectural at the time,<br />

reads today as a chilling prediction of what would be<br />

uncovered at Abu Ghraib four years later.<br />

The Abu Ghraib Prison Scandal<br />

Abu Ghraib is a large prison complex stationed twenty<br />

miles west of Baghdad, Iraq. During the U.S. military<br />

involvement in Iraq, it was the largest of seventeen prison<br />

facilities operated by U.S. forces. The prison was initially<br />

used as a jail for common criminals when the U.S.<br />

occupation began in March 2003. However, in the months<br />

that followed, U.S. troops began to transfer thousands of<br />

Iraqis to Abu Ghraib for interrogation. By October 2003,<br />

7,000 prisoners were held at the prison, many of whom<br />

had been picked up off the street or handed over by Iraqi<br />

police forces. 36 In order to supplement the interrogation<br />

and intelligence forces stationed at the prison, the U.S<br />

army hired employees from private contractors CACI<br />

35. Campbell, 12.<br />

International Inc. and Titan Corp.<br />

CACI International Inc. (hereafter referred to as CACI) is<br />

headquartered in Arlington, Virginia and specializes in<br />

?systems integration? solutions. The contract between the<br />

U.S. military and CACI that led to their placement in Iraq<br />

was initially awarded in 1998, with the stated purpose of<br />

supplying ?inventory control? for the United States. CACI<br />

was specifically a contractor of the U.S. Department of the<br />

Interior (DOI), and, as a 2004 article in the Washington<br />

Post describes, provided interrogation services at Abu<br />

Ghraib. Meanwhile, Titan Corp, a San Diego-based<br />

defense contractor, was hired by the DOI for translation<br />

services at various U.S.-operated prisons in Iraq.<br />

Throughout the fall and winter of 2003, many detainees at<br />

Abu Ghraib experienced numerous acts of severe mental,<br />

physical, and sexual torture. The abuses endured by the<br />

victims included ?repeated beatings, sexual humiliation,<br />

rape, sodomy, and an array of food, sleep, and sensory<br />

deprivations.? 37 After photographic evidence of these acts<br />

was discovered on a CD-ROM by an enlisted soldier in<br />

January of 2004, the DOD launched an internal<br />

investigation. Using statements of over 170 witnesses,<br />

including prisoners, U.S. service members, and employees<br />

of CACI and Titan, they discovered that 23 military<br />

intelligence personnel and four private contractors had<br />

been responsible for the abuses at Abu Ghraib, while two<br />

other contractors had witnessed but failed to report the<br />

incidents. 38 39 The investigating panel, led by Major<br />

General Antonio M. Taguba, concluded that these findings<br />

were supported by ?a preponderance of evidence? and that<br />

employees of CACI and Titan were directly involved in at<br />

least 16 out of 44 confirmed incidents of torture. 40 The<br />

?Taguba Report? consequently recommended that these<br />

36. Mark W. Bina, ?Private Military Contractor Liability And Accountability After Abu Ghraib 38 J. Marshall L. Rev. 1237 (2005),? UIC <strong>Law</strong> <strong>Review</strong> 38, no. 4 (Summer 2005): 1237-1360,<br />

https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1376&context=lawreview.<br />

37. Ibid.<br />

38. Jessica Ayer, ?Military Extraterritorial Jurisdiction Act: International Implications and Prosecutorial Considerations,? Indiana Int?l & Comp. <strong>Law</strong> <strong>Review</strong>,29, no. 1 (2019): p.122,<br />

https://journals.iupui.edu/index.php/iiclr/article/download/22943/22307/36138.<br />

39. Bina, p. 1247.<br />

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40. Ibid.<br />

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contractors and soldiers be referred to the U.S. Department laws available to prosecutors and victims seeking legal<br />

of Justice for criminal prosecution. 41<br />

redress and compensation from private military<br />

contractors, considering whether each could have been<br />

However, while twelve of the implicated U.S. soldiers<br />

applicable to the Abu Ghraib case. Given that exploring all<br />

have since been court-martialed or prosecuted via other<br />

of the opportunities and limitations presented by federal,<br />

military sanctions, none of the private contractors involved<br />

civil, as well international law would be too large a task for<br />

in the Abu Ghraib scandal have been found guilty.<br />

the length and scope of this paper, the analysis focuses on<br />

Multiple unsuccessful lawsuits have been filed on behalf<br />

three main strands of law: the local laws of the occupied<br />

of the victims. Saleh v. Titan (2011), filed in June 2004 by<br />

country, military law, and civil law.<br />

the Center for Constitutional Rights, had as plaintiffs more<br />

than 250 people who were caught up in the military raids<br />

in Iraq and detained in prisons controlled by the United<br />

?Home Nation?<strong>Law</strong>: Coalition Provisional Authority<br />

(CPA) Authority over Contractors<br />

States, including Abu Ghraib. 42 The suit charged that Titan<br />

When U.S. forces enter a foreign country, the United States<br />

and CACI violated international, federal, and state law by<br />

signs a Status of Forces Agreement (SOFA) with that<br />

?participating in a torture conspiracy, along with U.S.<br />

state. 45 The agreement delineates the rights and<br />

government personnel, that led to the rape and other acts of<br />

responsibilities between the sending state (the United<br />

torture, assault and killing of Iraqi detainees.? 43 After five<br />

States) and the receiving state as well as matters pertaining<br />

years of litigation, the Court of Appeals for the District of<br />

to the ?criminal and civil jurisdiction over sending state<br />

Columbia dismissed the case. In 2008, Al Shimari v. CACI<br />

personnel.? Importantly, it indicates who has prosecutorial<br />

International (2012) was brought before the Eastern<br />

authority over DoD employees if they commit wrongful<br />

District of Virginia on behalf of four ?hard site? victims of<br />

behavior in the foreign country. If a military member<br />

torture at Abu Ghraib prison. 44 Yet the case is still being<br />

commits an offense punishable under U.S. law, the United<br />

aired in court over a decade later, with the most recent<br />

States takes jurisdiction over the case and tries the<br />

hearing taking place in September 2021. The poor success<br />

individual under the ?Uniform Code of Military Justice,?<br />

record of the Abu Ghraib cases suggests that PMCs enjoy<br />

commonly resulting in a court martial. If a U.S. citizen<br />

a substantial degree of legal impunity relative to formal<br />

commits a crime against a receiving state?s citizen, then<br />

U.S. military forces? raising the question: how did this<br />

the foreign state typically has jurisdiction. 46 Crucially,<br />

phenomenon emerge?<br />

however, the receiving state must also have a sovereign<br />

Analysis: Criminal Accountability of PMCs<br />

legal and judicial structure in order to prosecute. Indeed, in<br />

a section entitled "Legal Jurisdiction over Armed Private<br />

The actions of private military contractors are governed by<br />

Security Contractors," the 2010 U.S. Joint Forces<br />

a complex array of U.S. laws. This section examines the<br />

38. Jessica Ayer, ?Military Extraterritorial Jurisdiction Act: International Implications and Prosecutorial Considerations,? Indiana Int?l & Comp. <strong>Law</strong> <strong>Review</strong>,29, no. 1<br />

(2019): p.122, https://journals.iupui.edu/index.php/iiclr/article/download/22943/22307/36138.<br />

39. Bina, p. 1247.<br />

40. Ibid.<br />

41. Ibid.<br />

42. ?Accountability for Torture by Private Military Contractors: Factsheet,? Center for Consitutional Rights, September 22, 2017,<br />

https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/accountability-torture-p rivate-military.<br />

43. Ibid.<br />

44. Ibid.<br />

45. Ayer, 122.<br />

46. Ibid.<br />

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Command ?Handbook for Armed Private Security<br />

Contractors in Contingency Operations? outlines that<br />

?There are four ways that an individual contractor can be<br />

prosecuted for misconduct.? 47 The first clause reads:<br />

Where the HN [?home nation?] has a functioning legal<br />

infrastructure in place and in the absence of a SOFA<br />

that includes protections for DoD affiliated APSCs, the<br />

civil and criminal laws of the HN take precedence. If<br />

the HN waives jurisdiction, then US laws regarding<br />

criminal/ civil liability will have precedence. 48<br />

In the case of Iraq, while the U.S. military occupation<br />

commonly represented it as not having a ?functioning legal<br />

infrastructure,? it was also under U.S. occupation in a legal<br />

sense; Iraqi laws could not apply to private contractors.<br />

That is, following the United Nations?recognition of the<br />

U.S. and U.K. Constitutional Provisional Authority (CPA)<br />

as the occupying power in the country, CPA head Paul<br />

Bremer issued a decree granting foreign private contractors<br />

exemption from Iraqi law. Signed by Bremer in June 2004,<br />

?Coalition Provisional Authority Order 17? explained that<br />

contractors would not be subject to ?Iraqi laws or<br />

regulations in matters relating to the terms and conditions<br />

of their Contracts,? and that accordingly, contractors would<br />

be ?immune from Iraqi legal process with respect to acts<br />

performed by them pursuant to the terms and conditions of<br />

a Contract or any subcontract thereto.? 49 It moreover<br />

stipulated that nothing in the provision would prohibit<br />

?MNF ['multinational force?] Personnel from preventing<br />

acts of serious misconduct by Contractors, or otherwise<br />

temporarily detaining any Contractors who pose a risk of<br />

Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

injury to themselves or others, pending expeditious<br />

turnover to the appropriate authorities of the Sending<br />

State.? 50 In all such circumstances, it suggested, ?the<br />

appropriate senior representative of the Contractor?s<br />

Sending State in Iraq shall be notified.? 51<br />

<strong>No</strong>tably, in using language referring to the ?prevention? of<br />

acts of misconduct and ?temporary? detention, the decree<br />

omitted explicit mention of legal action. It also precluded a<br />

description of how ?expeditious turnover? would be<br />

enforced. The extension of immunity it granted to private<br />

contractors from Iraqi law remained in force even after<br />

Iraq ratified its constitution in 2005. Indeed, until the<br />

termination of the U.N. mandate in December 2008, the<br />

CPA Order 17 remained in effect, and exempted all<br />

contractors from Iraqi laws while in the performance of<br />

their contracts. 52 An article published in the New York<br />

Times in 2007 referred to the fact that the Iraqi cabinet was<br />

in a ?hurry to correct the mistake? of the CPA order and<br />

was in the process of drafting legislation to revoke the<br />

decree. 53<br />

The cases brought forward on behalf of the victims of Abu<br />

Ghraib post-2008 have not sought redress under Iraqi law,<br />

potentially due to new SOFA between Iraq and the United<br />

States. 54 Ratified by the Iraqi parliament on <strong>No</strong>vember 27,<br />

2008, it granted Iraq ?the primary right to exercise<br />

jurisdiction over United States DoD contractors and United<br />

States DoD contractor employees.? 55 However, in being<br />

employed under a DOI contract, and not the DoD, CACI<br />

and Titan are not covered by this agreement, and hence fall<br />

47. ?Handbook for Armed Private Security Contractors in Contingency Operations,? U.S. Joint Forces Command, February 2010,<br />

https://www.jcs.mil/Portals/36/Documents/Doctrine/pams_hands/apsc_hbk.pdf.<br />

48. Ibid.<br />

49. Coalition Provisional Authority Order Number 17 (June 27, 2004) (revised), https://web.archive.org/web/20071005032102/http://www.cpa-iraq.org/regulations/20040627_CPAORD_1<br />

7_Status_of_Coalition__Rev__with_Annex_A.pdf.<br />

50. Ibid.<br />

51. Ibid.<br />

52. The CPA dissolved at the end of June, 2004, but orders issued by the CPA remain in place unless rescinded by the Iraqi Transitional Government, see: U.S. Library of Congress,<br />

Congressional Research Service, U.S. Treatment of Prisoners in Iraq: Selected Legal Issues, by Jennifer K. Elsea, RL32395 (2005), https://sgp.fas.org/crs/mideast/RL32395.pdf.<br />

53. ?Legal Loopholes in Iraq,? New York Times, <strong>No</strong>vember 5, 2007, https://www.nytimes.com/2007/11/05/opinion/05mon3.html.<br />

54. In September 2007, the Iraqi government began a process of overriding CPA Order 17 and subjecting contractors to Iraqi law.<br />

55. Darren McPherson, ?Are Iraq Contractors Subject to U.S. <strong>Law</strong>?,? Washington Independent, Dec 26, 2008,<br />

https://washingtonindependent.com/23037/are-iraq-contractors-subject-to-us-law/.<br />

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Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

outside the scope of Iraqi legal jurisdiction.<br />

Military <strong>Law</strong>: Uniform Code of Military Justice<br />

In 2007, the U.S. Congress expanded the jurisdictional<br />

scope of the UCMJ in an attempt to bring private<br />

contractors under its terms. Article 2(a)(10), UCMJ, grants<br />

military jurisdiction in ?time of declared war or a<br />

contingency operation? to ?persons serving with or<br />

accompanying an armed force in the field.? 56 Prior to this<br />

change, the UCMJ covered civilians serving with the<br />

Armed Forces in the field only in ?time of war," a phrase<br />

which courts have historically interpreted as meaning wars<br />

officially declared by Congress. 57 Scholars have argued<br />

that through this amendment, legislators implied the<br />

technical liability of PMCs under military law. In a 2010<br />

article published in the Yale Journal of International<br />

Affairs, Mitchell McNaylor even goes so far as to argue<br />

that the amendment is ?overbroad;? a ?problematic<br />

overcorrection? that ?potentially subjects United States<br />

civilians to military jurisdiction in situations short of<br />

declared wars.? 58<br />

However, the prosecution of civilians via court martial<br />

historically has been challenged on constitutional<br />

grounds. 59 Courts typically have been reluctant to place<br />

civilians under military jurisdiction. 60 In Reid v. Covert<br />

(1956), for instance, the Supreme Court rejected such a<br />

broad interpretation of the UCMJ. The defendant in the<br />

Covert case was the civilian wife of an Air Force sergeant,<br />

who had murdered her husband while they were living on<br />

a military base in the U.K. Although she was convicted<br />

and court-martialled under the UCMJ, the Supreme Court<br />

reversed her conviction, with the majority opinion calling<br />

it unconstitutional to court-martial civilians during<br />

peacetime. 61 In Kinsella v. United States ex rel. Singleton<br />

(1959), three years later, the Court went even further,<br />

specifically rejecting the trial by court martial of civilians<br />

for non-capital offenses. 62<br />

Even if subjecting civilian contractors to court-martial was<br />

held to be constitutional, Secretary of Defense Robert<br />

Gates? attempt to clarify the meaning of the UCMJ<br />

amendment led to confusion as to which individuals the<br />

UCMJ applies. In a 2008 memo outlining the process for<br />

bringing civilians before courts martial, Secretary Gates<br />

explains that,<br />

criminal infractions by employees of the Department<br />

of Defense or by civilians accompanying the armed<br />

forces shall be reported to the Department of Justice; if<br />

the Department of Justice will not proceed with<br />

56. Jennifer K. Elsea, ?U.S. Treatment of Prisoners in Iraq: Selected Legal Issues,? CRS Report for Congress, Congressional Research Service,May<br />

19, 2005, https://sgp.fas.org/crs/mideast/RL32395.pdf.<br />

57. Ibid., 19.<br />

58. Mitchell McNaylor, ?Mind the ?Gap?: Private Military Companies and the Rule of <strong>Law</strong>,? Yale Journal of International Affairs 5, no. 2<br />

(Spring/Summer 2010): https://www.yalejournal.org/publications/mind-the-gap-private-military-companies-and-the-rule-of-law.<br />

59. U.S. Library of Congress, Congressional Research Service, Private Security Contractors in Iraq: Background, Legal Status, and Other Issues, by<br />

Jennifer K. Elsea, Moshe Schwartz, and Kennon H. Nakamura, RL32419 (2008), https://sgp.fas.org/crs/natsec/RL32419.pdf.<br />

60. See Reid v. Covert, 354 U.S. 1, 21 (1957) (?Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and,<br />

more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.?); O?Callahan v. Parker, 395 U.S.<br />

258, 267 (1969)(?[C]ourts-martial have no jurisdiction to try those who are not members of the Armed Forces, no matter how intimate the<br />

connection between their offense and the concerns of military discipline.?).<br />

61. John S. Kemp, ?Private Military Firms and Responses to Their Accountability Gap,? Washington University Journal of <strong>Law</strong> & Policy 32, no. 1<br />

(January 2010): 493, https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1088&context=law_journal_law_policy.<br />

62. Ibid., 502.<br />

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prosecution, certain military commanders with the<br />

proper authority can, with exception, refer the civilian<br />

to a court martial. 63<br />

Gates uses different language from the UCMJ when<br />

describing which civilians are liable to a court martial.<br />

Whereas the updated UCMJ uses briefer and more<br />

sweeping language, describing ?persons? who accompany<br />

the Armed Forces, the Gates memo appears to assume that<br />

only DoD employees and contractors could be subject to<br />

the UCMJ. This ambiguity as to whom the law pertains<br />

suggests a substantial obstacle in its application.<br />

Furthermore, establishing whether a contractor is liable to<br />

prosecution under the UCMJ requires determining whether<br />

they were ?serving with or accompanying an armed force?<br />

that is operating ?in the field.? 64 As a 2010 report by the<br />

Congressional Research Service noted, ?in the field? is<br />

defined as ?in an area of actual fighting? at or near the<br />

?battlefront? where ?actual hostilities are underway.? 65<br />

Whether or not a contractor is ?in the field? is thus<br />

?determined by the activity in which [they are] engaged at<br />

any particular time, not the locality where [they are]<br />

found.? 66<br />

Consequently, the report points out that<br />

contractors may not be under the authority of military<br />

jurisdiction ?simply because of their employment in Iraq<br />

or Afghanistan.? 67<br />

In light of these observations, it is perhaps unsurprising<br />

that only one private contractor has actually been tried for<br />

misconduct under the expanded UCMJ. 68 Likewise, it<br />

seems unlikely that courts will be willing, as Jordon writes,<br />

Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

to take the ?slippery slope? of applying military law to<br />

civilians involved with military operations. 69 With the<br />

constitutional question yet to be entertained, and who<br />

constitutes applicable PMCs undefined, the potential for a<br />

legal loophole remained even after the UCMJ was<br />

amended.<br />

Military <strong>Law</strong>: Military Extraterritorial Jurisdiction Act<br />

With the intention of filling the jurisdictional gap left by<br />

the UCMJ, the Military Extraterritorial Jurisdiction Act<br />

(MEJA) was issued in 2000. Individuals who are<br />

?employed by or accompanying the armed forces? abroad<br />

may be prosecuted under the MEJA ?for any offense that<br />

would be punishable by imprisonment for more than one<br />

year if committed within the special maritime and<br />

territorial jurisdiction of the United States.? 70 71 An<br />

amendment to the MEJA issued in October 2004, the<br />

National Defense Authorization Act, expanded the scope<br />

of MEJA over civilian contractors and employees from<br />

other federal bodies and ?any provisional authority?(such<br />

as the CPA), so long as their employment was related to<br />

the support of a DoD mission abroad.<br />

Nevertheless, the private contractors at Abu Ghraib could<br />

not be technically prosecuted under the MEJA in 2003, as<br />

at the time, the Act suffered from the same loophole<br />

created by the 2004 United States-Iraq SOFA. That is, it<br />

only pertained to PMCs directly hired by the DoD and thus<br />

would not apply to CACI or Titan. Scholars have noted<br />

that the expanded form of the MEJA could have been<br />

63. Ibid., 506.<br />

64. Elsea et al., 19.<br />

65. Ibid., 18.<br />

66. Ibid., 19.<br />

67. Ibid., 20.<br />

68. Kemp, 506.<br />

69. Craig S. Jordon, ?Who Will Guard the Guards? The Accountability of Private Military Contractors in Areas of Armed Conflict.? New England Journal on Criminal<br />

and Civil Confinement 35 (2009): 309-336.<br />

70. Elsea et al., 18.<br />

71. Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3267 (2000).<br />

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applicable to the Abu Ghraib case; Titan and CACI did the Alien Torts Claims Act (or Alien Torts Statute, ATS).<br />

indeed fall under the expanded umbrella of provisional<br />

First adopted in 1789, the ATS grants that ?district courts<br />

authority. However, the 2004 MEJA still did not provide<br />

shall have original jurisdiction of any civil action by an<br />

guidance as to how courts should interpret whether<br />

alien for a tort only, committed in violation of the law of<br />

contractors are acting ?in support? of DoD missions, and<br />

nations or a treaty of the United States.? 76 The ATS<br />

furthermore, could not be used retroactively. 72<br />

For these reasons, McNaylor points out, the MEJA has<br />

rarely been used to prosecute crimes that happened during<br />

the War on Terror or the Iraq War, even if they involved<br />

DoD contractors. 73 In fact, according to a 2007 New York<br />

Times report, under the law adopted in 2000, only two<br />

criminal cases had originated in Iraq, one involving a<br />

contractor accused of possessing child pornography, and<br />

another accused of rape. In the rape case, ?both the<br />

reported victim and the accused were Americans. 74 The<br />

definitional ambiguities of the MEJA and the lack of its<br />

implementation by the U.S. government thus suggest its<br />

limited ability to hold PMCs accountable for human rights<br />

abuses.<br />

Shifting from Criminal to Civil Liability: Alien Torts Act<br />

remained dormant for nearly two centuries until it was<br />

rediscovered in 1980 through the case of Filartiga v.<br />

Pena-Irala (1980). In the landmark case, the plaintiff, Dr.<br />

Filartiga, charged Pena-Irala, a Paraguayan national who<br />

was then residing in the United States, with the torture and<br />

murder of his son in Paraguay four years prior. The court<br />

found that ?an act of torture committed by a state official<br />

against one held in detention violates established norms of<br />

the international law of human rights, and hence the law of<br />

nations.? 77 The Filartiga ruling set a precedent for the use<br />

of the ATS as a means of settling human rights abuses<br />

against foreigners within U.S. district courts. Building<br />

upon the Filartiga ruling, Sosa v. Alvarez-Machain (2004)<br />

raised the question of whether liability under the ATS<br />

could be restricted to cases of ?extraterritorial tortious<br />

conduct.?<br />

Absent the opportunity for a criminal case to be put against<br />

In doing so, it also created an opportunity for<br />

the prosecution of PMCs in cases such as the Abu Ghraib<br />

CACI and Titan under Iraqi or U.S. law, the Center for<br />

scandal.<br />

Constitutional Rights (CCR) filed a civil lawsuit in 2004 in<br />

federal court on behalf of those who had been abused at In Sosa, a Mexican doctor, Dr. Humberto<br />

Abu Ghraib. The case, Saleh et al. v. Titan et al. (2011),<br />

charged ?CACI International, Inc. and Titan Corporation<br />

with violations of state, federal, and international law,<br />

Alvarez-Machain, who had been forcibly abducted from<br />

his office in Guadelajara and charged for his alleged role in<br />

the torture of a Drug Enforcement Agency (DEA)<br />

including torture; cruel, inhuman, or degrading employee, sued civilly against Jose Francisco Sosa, a<br />

treatment.? 75 An integral element of the case was its use of bounty hunter hired by the DEA. 79 The District Court<br />

72. Valerie Sperling, Altered States: The Globalization of Accountability, (Cambridge: Cambridge University Press, 2009), 181-188.<br />

73. McNaylor, 321.<br />

74. Ibid; David M. Herszenhorn, ?House?s Iraq Bill Applies U.S. <strong>Law</strong> to Contractors,? New York Times, October 5, 2007,<br />

https://www.nytimes.com/2007/10/05/washington/05cong.html.<br />

75. ?Saleh, et al. v. Titan, et al.,? Center for Constitutional Rights, https://ccrjustice.org/home/what-we-do/our-cases/saleh-et-al-v-titan-et-al.<br />

76. Scott J. Borrowman, ?Sosa v. Alvarez-Machain and Abu Ghraib--Civil Remedies for Victims of Extraterritorial Torts by U.S. Military Personnel<br />

and Civilian Contractors,? Brigham Young University <strong>Law</strong> <strong>Review</strong> 2005, no. 2 (May 2005): 371-425,<br />

https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2231& context=lawreview.<br />

77. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).<br />

78. Ibid.<br />

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awarded Alvarez summary judgment and damages on his<br />

ATS claim, holding that the ATS applies only to violations<br />

of international norms that are ?specific, universal, and<br />

obligatory.? 80 Hence, as articulated in the order dismissing<br />

Saleh v. Titan, in Sosa ?the Court opened the door to the<br />

possible recognition of new causes of action under<br />

international law (such as, perhaps, torture) if they were<br />

firmly grounded on an international consensus.? 81<br />

Many have argued that Sosa should allow a cause of action<br />

for the prosecution of PMCs under the ATS ?because there<br />

is broad, clear international consensus that torture and<br />

abuse of prisoners is unlawful.? 82 However, it has thus far<br />

failed to successfully support the cases filed on behalf of<br />

the Abu Ghraib victims. This is highlighted by the<br />

dismissal order of the court in Saleh v. Titan:<br />

The Sosa Court . . . expressed the imperative of<br />

judicial restraint. It was pointed out that federal courts<br />

today? as opposed to colonial times? are and must be<br />

reluctant to look to the common law, including<br />

international law, in derogation of the acknowledged<br />

role of legislatures in making policy . . . in light of the<br />

holding in Sosa, we have little difficulty in affirming<br />

the district judge?s dismissal of the ATS claim against<br />

Titan. 83<br />

The above quote demonstrates the importance of clear<br />

definitions of ?torture? and ?abuse? in advancing the cases<br />

put forward by victims of PMC misconduct; the absence of<br />

which, according to the Court, jeopardizes the<br />

effectiveness of the ATS as a means of prosecution. When<br />

CCR put forward another case on behalf of the Abu Ghraib<br />

victims, Al Shimari v. CACI, in 2008, it was careful to<br />

Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

clarify this aspect of its argument. However, the strength of<br />

this ongoing lawsuit has also suffered as a result of cases<br />

that have limited the extraterritorial scope of the ATS.<br />

Indeed, CACI referenced such precedents in its appeal to<br />

dismiss Al Shimari v. CACI:<br />

In Kiobel v. Dutch Petroleum, the Supreme Court<br />

recognized that claims could be actionable under the<br />

ATS where they ?touch and concern the territory of the<br />

United States . . . with sufficient force to displace the<br />

presumption against extraterritorial application? . . . as<br />

any third-grader can confirm, Iraq is not ?in the United<br />

States.? 84<br />

While the tone of CACI?s appeal is clearly one of<br />

condescension, it nevertheless makes clear another of the<br />

major challenges when seeking redress under the banner of<br />

the ATS: establishing that there is a significant domestic<br />

nexus in the allegations presented. Thus, while the ATS<br />

following Sosa could in theory provide an effective course<br />

of action for strengthening the accountability of PMCs<br />

before the law, it applies to an increasingly narrow number<br />

of circumstances. Successful leverage of the ATS to<br />

prosecute PMCs, I contend, might even require a new,<br />

precedent-setting case that would reverse the territorial<br />

restrictions set by cases such Kiobel v. Dutch Petroleum<br />

(2013).<br />

Conclusion<br />

In his lecture ?Politics as a Vocation,? German sociologist<br />

Max Weber famously defined the state as owning a<br />

monopoly over the legitimate use of violence. This paper<br />

suggests otherwise. he proliferation of private military<br />

contractors in the aftermath of the Cold War has raised<br />

79. Borrowman, 374 .<br />

80. Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).<br />

81. Appeal of U.S. District Court of Columbia, Case: 08-7008 Document: 1205678 Filed: 09/11/2009,<br />

https://ccrjustice.org/sites/default/files/assets/Titan_Decision%209%2011%2009.pdf.,<br />

82. Borrowman, 424.<br />

83. Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009).<br />

84. ?Defendant CACI Inc.?s reply in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction,? Shimari v. CACI, U.S. District Court for<br />

the Eastern District of Virginia, https://ccrjustice.org/sites/default/files/attach/2021/09/1346_9-2-21_CACI-reply-MTD_w.pdf, 16.<br />

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Outsourcing Liability: The Legal Accountability of the Private Military Industry<br />

significant legal issues of accountability and responsibility.<br />

By contracting out services to private actors, the United<br />

States military outsources, whether consciously or<br />

unconsciously, its liability for human rights abuses. The<br />

corporate soldiers it contracts with are subject to a<br />

patchwork of military and civil laws, yet each of these is<br />

fraught with multiple exceptions. The result of these edge<br />

cases is that PMCs, in a large number of instances, are able<br />

to act with impunity: in reference to Weber, their<br />

?violence? is contractually legitimate but stands outside<br />

the legal governance of the state. In the case of the Abu<br />

Ghraib prison scandal, Iraqi courts could not be used to<br />

prosecute implicated CACI and Titan Corp employees, as<br />

CPA Order 17 immunized contractors from Iraqi law.<br />

While the reformed UCMJ initially appeared promising in<br />

its extension of military jurisdiction over contractors in<br />

?undeclared? wars, it was weakened by definitional and<br />

constitutional ambiguities that have made it an unpopular<br />

course of action. The MEJA, meanwhile, does not extend<br />

to PMCs that are hired by non-DoD agencies, and as such<br />

could not be used to prosecute CACI or Titan. One<br />

potential avenue for civil litigation against PMCs is the use<br />

of the ATS, with its specific provisions for acts of torture<br />

against detainees. However, as past and ongoing court<br />

cases raised on behalf of the victims of Abu Ghraib have<br />

shown, the successful implementation of the ATS is<br />

extremely challenging given that its territorial scope has<br />

become increasingly restricted.<br />

In the absence of stricter domestic and international<br />

regulation of PMCs, these exceptions indicate that PMCs<br />

may continue to occupy a space of legal exceptionalism.<br />

We may see another Abu Ghraib, a reprise of the ironic<br />

image of the liberator engaging in acts of torture, should<br />

the norms and laws governing private contractors remain<br />

weak.<br />

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Edan Larkin '23<br />


The Second Amendment debate is all too familiar to most Americans, but the story is far more complicated and far more<br />

racialized than most modern scholarship acknowledges. Armed Black militias are not new, nor do they fall outside the<br />

bounds of the Second Amendment. Yet armed Black people and Black militias like the Black Panther Party (BPP) and<br />

<strong>No</strong>t Fucking Around Coalition (NFAC) have been denounced as radical and violent when invoking this right. White<br />

militias have not historically faced this same legal and popular resistance despite causing more harm, most often for Black<br />

communities. This paper will trace the history of the Second Amendment, through its foundation in racist laws and<br />

discriminatory court decisions like Dred Scott v. Sandford (1857) and the Black Codes, the state-sanctioned arming of<br />

Black men at war while denying them the right to arms at home, and the many murders of Black Americans by white<br />

people justified as self-defense. Finally, this paper will consider New York State Rifle & Pistol Association v. Bruen<br />

(2021), which asks the Supreme Court to determine the constitutionality of a New York state law that requires gun permit<br />

applicants to provide an ?actual and articulable? and ?proper cause? for concealed carry. I will consider the following<br />

question: Could the racist history of the Second Amendment make race an ?actual and articulable? claim to self-defense?<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

Introduction<br />

new, though they are less numerous than those organized<br />

by white men. As Johnson argues, Black militias fall<br />

In October 2020, two shots sounded at a protest in<br />

within the boundaries of the Second Amendment, which<br />

Lafayette, Louisiana that was organized after police<br />

reads: ?A well regulated Militia, being necessary to the<br />

murdered 31-year-old Trayford Pellerin. Protesters were<br />

security of a free State, the right of the people to keep and<br />

unsure who fired the shots, as standing among them was<br />

bear Arms, shall not be infringed.? 4 Although the<br />

the <strong>No</strong>t Fucking Around Coalition (NFAC), an armed<br />

definition has been a contentious topic, this paper will use<br />

Black militia. The incident attracted criticism as someone<br />

militia to refer to any group of usually armed individuals<br />

had accidentally discharged a weapon during an NFAC<br />

working toward a common cause, such as defense of the<br />

rally once before. NFAC, founded in 2017 in Atlanta by<br />

self or of the nation, whether that be a state or federal<br />

John Fitzgerald Johnson, also marched in Brunswick,<br />

infantry or a civilian army like NFAC. Further, it will focus<br />

Georgia for Ahmaud Arbery, and Louisville, Kentucky for<br />

more on the right to bear arms as it pertains to individuals<br />

Breonna Taylor. 1 Following the protests in the summer of rather than militias, due to the historical exclusion of<br />

2020, predominantly inspired by the murder of George Black men from militias. So why have armed Black people<br />

Floyd and other Black civilians, NFAC saw a steady and Black militias like the Black Panther Party and NFAC<br />

increase in its numbers. 2 According to Johnson, NFAC been denounced as radical and violent when they invoke<br />

consists of U.S. citizens ?exercising [their] constitutional this right to a ?well-regulated Militia? and ?to keep and<br />

rights and the color of [their] skin shouldn?t make any bear Arms?? Individual states have always taken different<br />

difference.? Also speaking to CNN, Thomas Mockaitis, a<br />

approaches to gun regulation and private militias.<br />

<strong>No</strong>where, however, have their stances been more<br />

historian at DePaul University, explained that ?[i]n one<br />

inconsistent than regarding Black people.<br />

sense [NFAC] echoes the Black Panthers. . . So far, they?ve<br />

coordinated with police and avoided engaging with This paper will investigate several key historical events,<br />

violence.? But ?[t]he White militia movement . . . has including the Colfax Massacre of 1873, Red Summer of<br />

many more people and it has been violent.? 3<br />

1919, and Tulsa Race Massacre of 1921, in the context of<br />

the legal history of the treatment of Black Americans<br />

The Second Amendment debate is increasingly prominent<br />

under the Second Amendment, the state weaponization of<br />

in the current legal and political discourse of the United<br />

Black men, the unconstitutional denial of the Second<br />

States. Generally speaking, one side argues for the need to<br />

Amendment to Black men, and Black arms advocacy. It<br />

protect and uphold the Second Amendment as a<br />

will demonstrate that white militias have not faced the<br />

fundamental American principle, whereas the other fights<br />

legal and popular resistance that Black militias did despite<br />

for increased gun regulation legislation to prevent deaths<br />

causing far more harm. This reality rests in a legacy of<br />

caused by armed violence. But groups like NFAC<br />

slavery and falsified history, which produced racist laws<br />

demonstrate that the story is far more complicated and far<br />

and discriminatory court decisions like Dred Scott v.<br />

more racialized than most modern scholarship<br />

Sandford (1857) and the Black Codes. The state armed<br />

acknowledges. Armed Black militias are not something<br />

Black men, such as during the Civil War and World War I,<br />

1. Nicole Chavez, Ryan Young, and Angela Barajas, ?An all-Black group is arming itself and demanding change. They are the NFAC,? CNN, October 25, 2020,<br />

https://www.cnn.com/2020/10/25/us/nfac-black-armed-group/index.html.<br />

2. Michael T. Heaney, ?Protest at the Center of American Politics,? Journal of International Affairs 73, no. 2 (Spring/Summer 2020): 195.<br />

3. Chavez, Young, and Barajas.<br />

4. U.S. Const. Amend. II.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

yet declined to extend the right to keep and carry into their crimes committed on the basis of race, color, religion,<br />

daily lives, though it was guaranteed to their white national origin, sexual orientation, gender, gender identity,<br />

counterparts. Along with having their access to arms or disability.? 7 Can these legal concepts concerning<br />

undermined by the state? an unconstitutional infringement specific groups of people extend to self-defense? And if<br />

of rights by definition? Black Americans were murdered they can, could that make race an ?actual and articulable?<br />

by white men in acts of violence justified as self-defense, quality, allowing Black people, as a protected class, to<br />

ensuring Black people suffered the most consequences and carry arms in spaces in which white people cannot?<br />

fewest benefits of the Second Amendment. Whereas white<br />

Black people have possessed a distinct claim to<br />

people thought of self-defense as more of an individual<br />

self-defense and militias that differed from and often<br />

right, Black people defended themselves as a combined<br />

outweighed that of white people. This is demonstrated by<br />

?self? within a historically meaningful collective. White<br />

the falsified legal history of the Second Amendment that<br />

men enjoyed unrestricted access to their Second<br />

allowed armed white civilians and state actors to target<br />

Amendment, while Black men bore the strain of undue<br />

Black people, the state weaponization of arming Black<br />

oversight. Though all Black people are targeted by white<br />

men, the unconstitutionality of denying Black self-defense<br />

bearers of arms, this paper will focus on Black men, as<br />

and militias, and arms advocacy by Black people. Rather<br />

women have generally been barred from gun ownership in<br />

than revolution, this is reclamation. As such, I will delve<br />

U.S. history. 5<br />

into this history, tracing the Second Amendment and its<br />

In 2021, New York State Rifle & Pistol Association v. relationship to Black men from the American Revolution<br />

Bruen, originally v. Corlett, reached the Supreme Court. to the NFAC, in pursuit of the question raised by New York<br />

The case asks the Supreme Court to determine whether a State Rifle & Pistol Association v. Bruen: whether race can<br />

New York state law, which requires applicants for gun qualify as ?actual and articulable? when it comes to<br />

permits to provide an ?actual and articulable? and ?proper dictating who may or may not carry arms in public spaces.<br />

cause? for concealed carry in the name of self-defense,<br />

The Legal Lies in Denying Arms to Black Americans<br />

should stand. 6 While petitioners raise this issue as a matter<br />

of restricting the Second Amendment and not one of race,<br />

The denial of the Second Amendment to and vilification of<br />

the Joint Appendix on this Supreme Court case invokes<br />

armed Black Americans grew from a falsified legal history<br />

race and racism a few times to argue that restricting<br />

rooted in slavery and anti-Black racism, demonstrating the<br />

self-defense contributes to this racist history. But in doing<br />

need for self-defense for Black people. In 1846, a<br />

so, it raises entirely different questions: What is a ?proper<br />

formerly enslaved man named Dred Scott filed suit for his<br />

cause,? and do certain people have more claim to it?<br />

freedom in the case later known as Dred Scott v. Sandford,<br />

Protected group legislation identifies specific categories of<br />

in which the Supreme Court ruled that Black people could<br />

people with special protection under the law, particularly<br />

not be citizens. One of the reasons given for this by Justice<br />

in terms of employment. The Department of Justice<br />

Taney, the author of the majority opinion, was that Black<br />

?enforces federal hate crimes laws that cover certain<br />

people would as a consequence earn the ability ?to keep<br />

5. This trend continues to this day; in 2017, the Pew Research Center found that about ?six-in-ten gun owners in the United States are male (62%)? compared to<br />

?one-in-five women (22%).? See: Juliana Menasce Horowitz, ?How male and female gun owners in the U.S. compare,? Pew Research Center, June 29, 2017,<br />

https://www.pewresearch.org/fact-tank/2017/06/29/how-male-and-female-gun-owners-in-the-u-s-compare/.<br />

6. Ryan Baldwin and Emily Gust, ?New York State Rifle & Pistol Association Inc. v. Bruen,? Legal Information Institute at Cornell University, accessed February 1,<br />

<strong>2022</strong>, https://www.law.cornell.edu/supct/cert/20-843; Adam Liptak, ?Supreme Court to Hear Case on Carrying Guns in Public,? New York Times, April 26, 2021,<br />

https://www.nytimes.com/2021/04/26/us/supreme-court-gun.html.<br />

7. ?Federal <strong>Law</strong>s and Statutes,? The United States Department of Justice, January 13, <strong>2022</strong>, https://www.justice.gov/hatecrimes/laws-and-policies.<br />

8. Dred Scott v. Sandford, 60 U.S. 417 (1857).<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

and carry arms wherever they went.? 8 Second Amendment<br />

here not only incorporated it into the American concepts of<br />

citizenship and personhood, but it also indicated that the<br />

government, or at least the Supreme Court, recognized the<br />

threat to white supremacy that allowing Black people to<br />

bear arms posed. It provided a means through which they<br />

could defend themselves, implying that the Court adopted<br />

a falsified narrative in defense of white elitism. Indeed,<br />

Justice Taney?s opinion was riddled with falsities, such as<br />

the claim that when slavery first existed in the United<br />

States, no one ?seems to have doubted the correctness of<br />

the prevailing opinion of the time.? 9 This statement<br />

completely ignores that virtually every enslaved Black<br />

person as well as white abolitionists ?doubted the<br />

correctness? of slavery, and it is just one of the lies that<br />

shaped Justice Taney?s decision and had long-lasting<br />

the legal relationship he wanted, rather than the one that<br />

should prevail between Black men and arms. The dissents<br />

by Justice McLean and Justice Curtis confirm that the<br />

ideas promulgated by Justice Taney were lies: Justice<br />

McLean reminds readers that via ?treaty with Mexico, we<br />

have made citizens of all grades, combinations, and colors.<br />

The same was done in the admission of Louisiana and<br />

Florida.? 12 That Taney?s fellow justices saw his lies for<br />

what they were underscores the falsities upon which the<br />

treatment of Black men under the Second Amendment<br />

stands? a foundation with recurring consequences for the<br />

lives and security of Black Americans. Even after the<br />

passage of the Fourteenth Amendment in 1868 overruled<br />

the Dred Scott decision, the deadly impact of the lies<br />

introduced to the American legal canon by Dred Scott<br />

reinforces the distinct claim to self-defense that Black<br />

consequences for the application of the Second people have. According to a report from the House of<br />

Amendment.<br />

Representatives, on Easter Sunday, 1873, following an<br />

electoral dispute in Colfax, Louisiana, a defeated and<br />

In his opinion, Justice Taney also argued that Black people<br />

angered Democratic militia of over 300 armed white<br />

do not deserve citizenship because they were not among<br />

men? many of them members of the Knights of White<br />

the colonists who fought against British rule, and the Court<br />

Camellia and the Ku Klux Klan (KKK)? attacked a group<br />

must ?inquire? as to ?who declared their independence and<br />

of Black Republicans defending the town?s courthouse,<br />

assumed the powers of Government to defend their rights<br />

demanding they drop their arms, resulting in some of the<br />

by force of arms? when considering who qualified as a<br />

citizen. 10 Black militiamen fleeing and ?leaving their arms. . . .<br />

There exist many contradictions in this claim: not<br />

Many of them were overtaken and shot to death . . . When<br />

only did Black men fight in the Revolutionary War, but<br />

the roof was burning over their heads. . . . A number of<br />

most Black people in the United States at the time lived in<br />

them rushed unarmed [from the building] but were all<br />

slavery, as Justice Taney acknowledged elsewhere in his<br />

opinion. 11 captured.?<br />

This prohibited them from fighting for<br />

Along with being a cruel attack on peacefully<br />

assembled Black people, the Colfax Massacre provides an<br />

independence using arms, because, as Justice Taney also<br />

example of the racialization of the Second Amendment: an<br />

stated, they did not have the right to them. These logical<br />

armed and violent white supremacist militia descended on<br />

fallacies underscore the false and self-serving narrative<br />

a town, while a peacefully-assembled group of Black men<br />

that Justice Taney knowingly crafted to provide a basis for<br />

dropped their arms, despite only carrying them as allowed<br />

9. Ibid., 60 U.S. at 408.<br />

10. Ibid., 60 U.S. at 407.<br />

11. LaGarrett J. King and Jason Williamson, ?The African Americans?Revolution: Black Patriots, Black Founders, and the Concept of Interest Convergence,? Black<br />

History Bulletin 82, no. 1 (Spring 2019): 10.<br />

12. Dred Scott, 60 U.S. at 533.<br />

13. ?Condition of the South,? Reports of Committees of the House of Representatives for the Second Session of the Forty-Third Congress, no. 261 (Washington D.C.:<br />

U.S. Printing Office, 1875), 11?14.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

following the Fourteenth Amendment and at the request of<br />

the Republican government.<br />

This massacre, formerly known as the Colfax Riot, resulted<br />

in the deaths of around 150 Black men, compared to three<br />

white deaths. The white militia captured and disarmed<br />

most of these Black men hours before killing them, long<br />

after the rioting ceased. 14 Such overtly racially-targeted<br />

violence could not possibly fall under the Second<br />

Amendment protections of self-defense; meanwhile, the<br />

many Black men killed were robbed of their legitimate<br />

claim to the right when they needed it most. In the<br />

subsequent United States v. Cruikshank (1876), the Court<br />

dropped the convictions of the white men responsible,<br />

arguing in the majority opinion written by Chief Justice<br />

Waite that the Fourteenth Amendment did not protect<br />

against violence committed by individuals and the First<br />

Amendment rights to assembly and petition were ?not<br />

intended to limit the powers of the State governments? but<br />

to ?operate on the National government alone.? 15 By<br />

upholding the white militia?s abuse of the Second<br />

Amendment, itself a violation of the Black militia?s Second<br />

Fourteenth Amendment.? 17 Moreover, the majority opinion<br />

in McDonald v. City of Chicago (2010), written by Justice<br />

Alito, explicitly referenced Cruikshank, describing it as<br />

?not a precedent entitled to any respect.? 18<br />

Decades later, in 1921, a similar mishandling of justice by<br />

the courts concerning arms occurred in Tulsa, Oklahoma,<br />

setting an equally false precedent, in the aftermath of the<br />

Tulsa Race Massacre. In response to what white people and<br />

state actors in Tulsa deemed a ?negro uprising,? the Tulsa<br />

Police Department deputized hundreds of white men,<br />

resulting in many armed and unarmed Black people being<br />

murdered or taken into custody, their homes in the once<br />

affluent neighborhood of Greenwood looted and burned. 19<br />

Black people suffered despite engaging in legal possession<br />

of arms while white men were actively encouraged and<br />

empowered by the state to use guns violently and illegally.<br />

Even with hundreds of Greenwood residents dead or<br />

homeless, Oklahoma courts still denied Black Tulsans<br />

redress and, according to the Tulsa World, blamed them for<br />

the violence and exonerated the white men. 20 As the Tulsa<br />

World?s headline shows, the courts contributed to the lies<br />

Amendment, and codifying intentionally narrow defining the relationship between Black people and the<br />

interpretations of the Fourteenth and First Amendments,<br />

the Court set a precedent for a treatment of armed Black<br />

people riddled with lies. Akhil Amar, an American legal<br />

scholar, explains that the Second Amendment was ?closely<br />

linked? to the ?guarantees of assembly and petition,?<br />

emphasizing how the unfounded claims of Justice Waite<br />

constituted an attack against the Black right to<br />

self-defense. 16 Fellow legal scholars Robert Cottrol and<br />

Raymond Diamond also weigh in, describing the case as a<br />

?serious blow to Congress? ability to enforce the<br />

Second Amendment by again validating a false conviction<br />

that targeted Black men who appropriately exercised their<br />

rights, and affirming the extralegal behavior of white men.<br />

Like the Colfax Riot, this massacre also received the title<br />

of the Tulsa Race Riots, an intentional misnomer implying<br />

that Black people used unnecessary violence while<br />

justifying white people who actually did engage in illegal<br />

brutality. The denial of Second Amendment rights to Black<br />

Americans continued through World War II to the Civil<br />

Rights Era, which brought with it a resurgence of arms<br />

14. Ibid.<br />

15. United States v. Cruikshank, 92 U.S. 542 (1876).<br />

16. Akhil Reed Amar, The Bill of Rights (New Haven: Yale University Press, 2008), 47.<br />

17. Robert J. Cottrol and Raymond Diamond, ?The Second Amendment: Toward an Afro-Americanist Reconsideration,? The Georgetown <strong>Law</strong> Journal 80, no. 309<br />

(1991): 347.<br />

18. McDonald v. City of Chicago, 177 U.S. 742, 855 (2010).<br />

19. Alfred L. Brophy, Reconstructing the Dreamland The Tulsa Riot of 1921: Race, Reparations, and Reconciliation (Oxford: Oxford University Press, 2003), 22.<br />

20. Ibid., 137, 158.<br />

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advocacy among Black liberation groups. In 1966, the<br />

Black Panther Party created a Ten-Point Program as its<br />

platform per the supposed guarantees of the Second<br />

Amendment. The seventh point explicitly invoked the<br />

Second Amendment to argue for the group?s right to bear<br />

arms. 21 Including this direct reference to the Second<br />

Amendment stood as proof of the legality of Panther<br />

advocacy for Black people to bear arms in self-defense.<br />

Yet Vice President Spiro Agnew, serving from 1969 until<br />

resigning in 1973, called the Black Panther Party a<br />

?completely irresponsible anarchistic group of<br />

criminals.? 22 The terms ?anarchistic? and ?criminals? are<br />

not only overly generalizing and largely inaccurate, but<br />

they also expose the overall baseless targets that the law<br />

and the state made of Black people who carried. The<br />

Director of the FBI, J. Edgar Hoover, dubbed the Black<br />

Panthers the ?number one threat to the security of the<br />

United States.? 23 The FBI?s hyper-fixation on the Black<br />

Panthers reflected the distortion of facts that contributed to<br />

the inaccurate portrayal of the party and the lawful use of<br />

arms by Black people in general. The deadly consequences<br />

of such rhetoric only further validate the Black claim to<br />

self-defense.<br />

If most of the Black Panthers? arms-related actions<br />

operated within the law, particularly the Second<br />

Amendment, why did the state label them ?criminals? and<br />

?threat[s]?? Why were white supremacist groups not<br />

subjected to the same denunciations? Does this not<br />

counteract the philosophy of equal treatment before the<br />

law upon which the U.S. government stands? On May 10,<br />

1865, Frederick Douglass delivered an address in New<br />

York City in which he warned that, if the nation did not<br />

outright require that the Bill of Rights also apply to the<br />

states, state legislatures might scheme to ?take from [free<br />

Black people] the right to keep and bear arms.? 24 In<br />

February 1866, U.S. Congressmen including Senator<br />

James Nye and Representative Roswell Hart echoed these<br />

sentiments, conceding that Congress could not infringe<br />

upon states?rights, but arguing that it could, and should,<br />

require that states uphold all protections specified in the<br />

Bill of Rights. 25 However, federal and state governments<br />

continued to legislate and execute the law in confirmation<br />

of the fears Douglass harbored.<br />

The State Weaponization of Arming Black Men<br />

The significance of the self-defense claim for Black men<br />

also manifests in how the US government armed and<br />

weaponized Black men in defense of the nation but robbed<br />

them of this right for themselves, demonstrating both the<br />

racist denial of the right and Black men?s comparatively<br />

urgent need for it. After the passage of the Second<br />

Amendment in 1791, the federal government passed the<br />

Uniform Militia Act of 1792, which ?called for the<br />

enrollment of every free, able-bodied white male citizen<br />

between the ages of eighteen and forty-five? in the<br />

militia. 26 This bill ensured that open militia enrollment on<br />

the local level would apply only to white men, restricting<br />

Black people?s enrollment to racist federal whims that<br />

forced Black people to serve for a nation that did not serve<br />

them. Further, as Cottrol and Diamond surmise, ?An armed<br />

white population was also essential to maintain social<br />

control over blacks.? 27 Excluding Black people from arms<br />

and militias was just as much about controlling them as<br />

preventing access, revealing how the U.S. government<br />

manipulated and weaponized the Second Amendment and<br />

its relationship to Black men and, in many ways, created<br />

their need for self-defense.<br />

21. ?The Black Panther Party Ten-Point Program,? Black Past, October 15, 1966,<br />

https://www.blackpast.org/african-american-history/primary-documents-african-american-history/black-panther-party-ten-point-program-1966/.<br />

22. American Civil Liberties Union, "News Release," in The Black Panthers Speak, ed. P. S. Foner (New York: J. B. Lippincott, 1969), 263-265.<br />

23. Ibid.<br />

24. Frederick Douglass, ?In What New Skin Will the Old Snake Come Forth?? (address, New York, NY, May 10, 1865).<br />

25. Amar, 192.<br />

26. Second Militia Act, 1 U.S.C. § 33 (1792).<br />

27. Cottrol and Diamond, 324.<br />

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On March 23, 1865, faced with a losing war and dwindling lives. Primarily in the South, white veterans could<br />

numbers, the Confederacy voted to ?ask for and accept purchase the army-issued rifles they fought with, but many<br />

from the owners of slaves, the services of . . . able-bodied Black soldiers were prohibited from keeping theirs out of a<br />

negro men . . . for and during the war, to perform military fear that ?armed Africans,? amidst a diminished, post-Civil<br />

service.? 28 Since the Confederacy primarily fought the War white population, would become ?masters of the<br />

Civil War to preserve slavery, this order allowed the situation.? 31 This language calls to mind the words of<br />

Confederacy to use Black men to secure a victory that Justice Taney in Dred Scott and indicates how the state<br />

would result in their continued enslavement, expanding treated Black people as unworthy of self-defense. In<br />

their access to arms and militias only so far as would Louisiana, General Canby, directed by Ulysses S. Grant,<br />

enable said access to then be forever denied. Meanwhile, forbade discharged Black Union soldiers from purchasing<br />

by 1862, southern Louisiana Union troops consisted of the arms with which they fought. 32 Though the treatment<br />

?Native Guard? regiments, which included free Black men of Black men and their access to self-defense differed on a<br />

and ranking officers of color, until General Nathaniel P. state-by-state basis, this decision made by the Union<br />

Banks forced most of these men to resign, though a group emphasizes the nationwide use and abuse of Black men<br />

of them requested Banks to reconsider. 29 In mercilessly and their Second Amendment rights. Black men were<br />

ousting Black soldiers, Banks exemplifies how even the armed for a state that declined to extend the right to<br />

state under the Union gave arms Black men only to treat self-defense, even after forcing them to fight in a war<br />

them as weapons under its control, giving and taking arms based upon whether they should be enslaved. 33 Such<br />

with no regard for the individual right to and need for hypocrisy bespeaks the urgent claim to self-defense that<br />

self-defense of Black soldiers. Further, upon emancipation Black men in particular had, even against the state itself.<br />

in 1863, one of the first actions of the Lincoln But even after the passage of the Fourteenth Amendment<br />

administration was to encourage Black men to join the war granted citizenship status to Black Americans, including<br />

effort, such as in a notice titled, ?To Colored Men! all the rights protected by said status, the state practice of<br />

Freedom, Pay, and a Call to Military Duty!? 30 This jump arming and weaponizing Black men without ensuring them<br />

from emancipation to military service indicates how the personal access in peacetime persisted. During the Red<br />

state weaponized Black men by arming them on the Summer, a period in 1919 when white supremacist<br />

battlefield, but did not grant them the protections of terrorism ran rampant throughout major cities in the cities<br />

citizenship and disrespected their Second Amendment in the United States, Black World War I soldiers and<br />

rights once off of it.<br />

veterans were frequent targets. That August, in Eastman,<br />

Georgia, a news clipping described a Black soldier being<br />

After the Civil War, the same government that forced<br />

severely whipped by a mob of white men because, as the<br />

Black men to take up arms in defense of the nation denied<br />

byline reads, ?He Had Been Talking Too Much Since<br />

Black soldiers the ability to exercise this right in their own<br />

28. An Act to Increase the Military Force of the Confederate States, General?s Orders. 14, Adjunct and Inspector General?s Office, (March 23, 1865).<br />

29. Adolph J. Gla et al. to Major General N. P. Banks, April 7, 1863, G-35 l863, series l920, Civil Affairs, Department of the Gulf, U.S. Army Continental Commands,<br />

Record Group 393 Pt. 1, National Archives.<br />

30. Poster from War Department, ?To Colored Men! Freedom, Pay, and a Call to Military Duty!,? 1863, D135-CT-1863, PI 17, Entry 360-A, Consolidated File for<br />

Major Martin Delaney, 104th USCT Infantry Regiment, 1863 - 1894, National Archives Catalog, Washington, D.C.<br />

31. Mary Berry, Toward Freedom and Civil Rights for the Freedmen (Washington, D.C.: Howard University, 1975), 16.<br />

32. James E. Sefton, The United States Army and Reconstruction (Baton Rouge: Louisiana State University Press, 1967), 43.<br />

33. Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War (Cambridge, Mass.: Harvard University Press, 2015), 111.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

Returning From France a Month Ago.? 34 The justification Similarly, from May 31 to June 1, 1921, the Tulsa Race<br />

for this violence is absurdly unlawful, revealing both the Massacre broke out, during which white men killed many<br />

unnecessary acts of violence committed against Black armed Black World War I veterans. Sergeant T. S. Esley<br />

World War I veterans as well as the denial of self-defense told the Muskogee Phoenix about shooting a group of<br />

to the men who not only needed it most but who had Black veterans who refused to drop their rifles, one of<br />

recently used arms to defend the entire nation.<br />

whom Esley hit twice before the veteran, close to death,<br />

allegedly said, ?Well, you boys gave us more than we got<br />

In Bogalusa, Louisiana, a white mob lynched a discharged<br />

overseas.?<br />

Black soldier after a white woman accused him of<br />

38 Whether or not this quote is accurate, it<br />

attacking her. 35 encapsulates how the massacre was akin to another war in<br />

Considering the robust history of white<br />

which Black soldiers operated in defense of their homes, as<br />

women falsely accusing Black men, often at the direction<br />

necessary and allowed by the Second Amendment, but still<br />

of white men, the assault alone is questionable; this<br />

had to give up their arms. When a massive white mob<br />

lynching again illuminates the lack of protection for Black<br />

followed the National Guard into Greenwood, Tulsa no<br />

soldiers the moment that government-issued rifles were<br />

longer commanded enough troops to manage the violence;<br />

torn from their hands. In Bisbee, Arizona, fourteen Black<br />

while it ?might be able to battle an army of negroes,? it<br />

members of the U.S. 10th Cavalry were arrested following<br />

?could not rout two thousand heavily armed white men.?<br />

a ?Riot Of Negro Cavalry,? during which three Black<br />

39<br />

Many of the victims killed by governmental incompetence<br />

soldiers, a Mexican woman, and Deputy Sheriff Hardwick,<br />

the only one named, were injured. 36 and violence that night were veterans once armed by state.<br />

These Black men were<br />

Yet Tulsa brutally disrespected their service, giving them<br />

active-duty soldiers attacked by ?civilians,? but, initially,<br />

no chance to defend themselves though they had far more<br />

the soldiers alone faced punishment despite their<br />

of a right to do so, while white men with guns ran rampant<br />

self-defense claim. The whole ordeal received the<br />

without consequence. More recently, the weaponization of<br />

racialized term ?riot,? as in Colfax and Tulsa, with no<br />

Black men by state- and white-led organizations has<br />

indication as to why or how it started. Colonel Snyder,<br />

occurred in a less violent but still harmful manner. In 2008,<br />

commander of the U.S. 10th Cavalry, rejected the<br />

Otis McDonald, a Black man, filed suit against a Chicago<br />

accusations against his troops, arguing that ?local officials<br />

gun law in what became McDonald v. City of Chicago,<br />

had planned deliberately to aggravate the negro troopers so<br />

wherein the Court ruled that the Second Amendment<br />

that they would furnish an excuse for police and deputy<br />

sheriffs to shoot them down.? 37 applies to state and local governments in addition to<br />

Even when the United<br />

federal.<br />

States armed Black men, it made clear that the protection<br />

40 <strong>No</strong>t only did this ruling expose the racist lie of<br />

Cruikshank, but spotlighting Otis McDonald as the lead<br />

of arms did not extend to the men that carried them, only<br />

plaintiff shows the continued means through which the<br />

to the state that weaponized them, illustrating the<br />

Court and other organizations weaponized Black men.<br />

significant but constantly denied claim to self-defense<br />

Though McDonald believed in his claim to self-defense,<br />

Black men had.<br />

the National Rifle Association (NRA), an organization of<br />

34. ?Negro Soldier Severely Whipped,? Eastman Times Journal, August 14, 1919.<br />

25. ?Negro Soldier Discharged, is Lynch Victim,? New York Call, September 2, 1919.<br />

36. ?Bisbee is Shot Up in Riot of Negro Cavalry,? The Eagle, July 4, 1919.<br />

37. ?Colonel Defends Negroes,? New York Times, July 22, 1919.<br />

38. Brophy, 102.<br />

39. Ibid., 103.<br />

40. McDonald, 177 U.S. at 900.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

which he was not a member, quickly capitalized on his<br />

involvement for other reasons. CEO Wayne LaPierre<br />

attributed the NRA?s support of McDonald to its<br />

passed a Black Code that banned enslaved people from<br />

bearing arms and using self-defense at all. 44 Considering<br />

the American promise of ?life, liberty, and property,? this<br />

?unyielding dedication to preserving the Second ban on Black self-defense was not only dehumanizing but<br />

Amendment . . . [and] fighting the covert racism of ?gun anti-American, a direct violation of the Second<br />

control.?? 41 This would be productive if it were true, but it<br />

rather seems to be LaPierre taking advantage of<br />

McDonald?s Blackness to promote the NRA. The NRA has<br />

stayed mostly silent on cases of legally armed Black men<br />

murdered by police, mostly chiming in when police kill an<br />

unarmed Black man. For example, after an officer<br />

accidentally but illegally entered Botham Jean?s apartment<br />

and killed him in 2018, the NRA stated that ?this could<br />

have been very different? if Jean was ?a law-abiding gun<br />

owner.? 42 Even disregarding the insensitivity of this<br />

statement, it reveals how institutions like the NRA and<br />

Supreme Court only really addressed Black gun<br />

Amendment and the Constitution in general. Abolitionist<br />

Lysander Spooner, in his 1845 The Unconstitutionality of<br />

Slavery, argued that slavery is inconsistent with the<br />

Consitution, partly because if Congress possesses the<br />

ability to arm and discipline militias, this extends to<br />

arming those whom individual states may deem slaves. He<br />

asked, ?Can the state governments determine who may,<br />

and may not, compose the militia of the ?United States??? 45<br />

As slavery essentially allowed states to disqualify enslaved<br />

people from or weaponize them via the Second<br />

Amendment, this arguably eroded the powers of Congress<br />

and the United States government as a whole.<br />

ownership, as in McDonald, when it benefited them,<br />

Following the Civil War, Alabama passed a gun ban in<br />

bringing up self-defense when it did not occur in response<br />

January 1866 that prohibited Black people from owning or<br />

to their wrongdoings. White state actors and white-led<br />

carrying arms and all people from selling, giving, or<br />

organizations weaponize Black men with the same arms<br />

lending arms to Black people. 46 Though the Fourteenth<br />

for which Black men die for brandishing; as journalist<br />

Amendment did not yet exist, Black people were now free<br />

Frank Smyth, who has covered the NRA for over twenty<br />

Americans and denying them the access to guns afforded<br />

years, frames it, McDonald ?gave the NRA a new platform<br />

to other Americans undermined their ability to be<br />

on which to rewrite its history.? 43<br />

The Restriction of Black Self-Defense as Anti-American<br />

American by definition. That same year, Representative<br />

Sidney Clarke resisted re-admitting Mississippi to the<br />

Union because its policies banning Black people from<br />

If the Constitution and Bill of Rights denote the hallmark<br />

owning arms violated the Second Amendment.<br />

of American freedom, physical representations of core<br />

Representative Leonard Myers requested the same of<br />

American values, then the denial of the Second<br />

Alabama.<br />

Amendment and self-defense to Black men is<br />

The denial of the Second Amendment to Black<br />

people was so anti-American that multiple congressmen<br />

unconstitutional and anti-American. In 1806, Louisiana<br />

believed that states that did so should not be American at<br />

41. Frank Smyth, The NRA: The Unauthorized History (New York: Flatiron Books, 2020), 10.<br />

42. Adam Serwer, ?The NRA?s Catch-22 for Black Men Shot by Police,? The Atlantic, September 13, 2018, https://www.theatlantic.com/ideas/archive/2018/09thenras-catch-22-for-black-men-shot-by-police/570124/.<br />

43. Smyth, 10.<br />

44. Black Code, 33 <strong>Law</strong>s of La. § 19 (1806).<br />

45. Lysander Spooner, The Unconstitutionality of Slavery (Cambridge: Harvard University, 1845), 115-116.<br />

46. Alfred Avins, The Reconstruction Amendments' Debate: The Legislative History and Contemporary Debates in Congress on the 13th, 14, and 15th Amendments<br />

(Virginia: Virginia Commission On Constitutional Government, 1967), 209.<br />

7. Amar, 192-193.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

all. <strong>No</strong>r did the passage of the Fourteenth Amendment put<br />

a stop to racist gun laws, as seen in United States v.<br />

their right to self-defense even after these Black veterans<br />

defended white people overseas.<br />

Cruikshank in 1876, a South Carolina law passed in 1902<br />

During the Red Summer, white men also began attacking<br />

that banned gun sales to anyone but sheriffs and their<br />

Black people living in Southwest Washington, D.C. In<br />

special deputies, including the KKK, and the Sullivan <strong>Law</strong><br />

response, ?all-White cavalry units? and ?White Marines<br />

of 1911 in New York that gave police discretion in<br />

and White infantry? were mobilized, resulting in around<br />

deciding who could own a handgun, resulting in Black<br />

1,100 troops who ended up doing little else than forming<br />

people consistently being turned away. 48 With the<br />

more white mobs. 50 If the U.S. troops are meant to protect,<br />

Fourteenth Amendment, laws could no longer explicitly<br />

defend, and uphold the sanctity of American law, soldiers<br />

deny Black people their Second Amendment rights. But<br />

forming violent groups within their ranks to murder and<br />

state governments found ways to do so without outright<br />

deny self-defense to innocent Black people, many of them<br />

admitting to it, an incredibly anti-American approach that<br />

veterans themselves, were glaringly anti-American<br />

still violated the Second and Fourteenth Amendments.<br />

pursuits. A letter written around this same time from Neval<br />

In the many massacres previously discussed, Black people<br />

acted within their rights or even as wards of the state,<br />

emphasizing the anti-American act of denying them their<br />

Second Amendment and their resultant, distinguished<br />

Thomas to Archibald Grimké, two prominent Black<br />

activists and NAACP leaders detailed the rioting in<br />

Knoxville, Tennessee: ?The violence? complete with<br />

drunken whites destroying a county jail, ransacking the<br />

claim to self-defense. During the Colfax Massacre, the sheriff?s home, and looting downtown<br />

Black men attacked by the white supremacist militia were<br />

helping the newly-commissioned Sheriff Daniel Shaw,<br />

who ?deputized, in his writing, from fifteen to eighteen<br />

men, mostly Negroes, to assist as his posse in holding the<br />

courthouse and keeping the peace.? 49 Black militiamen<br />

defended the government at the request of the government,<br />

an action both legal and American. Yet they were forced to<br />

drop their arms and were shot dead by an extralegal white<br />

businesses? exploded southerners? smug view that they<br />

only lynched guilty individuals, whereas northerners<br />

attacked blacks solely because of their skin color.? 51 These<br />

attacks against government institutions and innocent Black<br />

people by white people disrespected both the United States<br />

and the rights of the fellow man, explicit acts of<br />

anti-Americanism that wiped away any ?smug view? white<br />

racists indulged in.<br />

supremacist group in a direct and anti-American violation<br />

Along with directly invoking the Second Amendment the<br />

of those Black men?s rights that went unpunished. In the<br />

Ten-Point Program of the Black Panther Party also<br />

white supremacist terror attacks of the Red Summer and<br />

strategically quotes the Declaration of Independence and<br />

Tulsa Race Massacre, many of the armed Black men<br />

carefully mimics the structure of the Declaration and the<br />

murdered by white people were WWI veterans. If recent<br />

Bill of Rights. 52 Drawing this parallel highlights the legal<br />

American political movements are any precedent,<br />

and American actions of the Panthers and, in turn, makes<br />

respecting and honoring the troops is a defining tenet of<br />

the anti-American nature of the attacks against their<br />

Americanism. But white men robbed Black veterans of<br />

48. Don B. Kates, "Toward a History of Handgun Prohibition in the United States" in Restricting Handguns: The Liberal Skeptics Speak Out (Great Barrington: <strong>No</strong>rth<br />

River Press, 1979), 15; Steve Ekwall, ?The Racist Origins of US Gun Control: <strong>Law</strong>s Designed To Disarm Slaves, Freedmen, And African-Americans,? Sedgwick<br />

County: 9, https://www.sedgwickcounty.org/media/29093/the-racist-origins-of-us-gun-control.pdf.<br />

49. ?Condition of the South.?<br />

50. David F. Krugler, ?1919,? Washington History 32, no. 1/2 (Winter 2020), 28.<br />

51. Cameron McWhirter, Red Summer: The Summer of 1919 and the Awakening of Black America (New York City: Henry Holt and Company, 2011), 181.<br />

52. ?The Black Panther Party Ten-Point Program.?<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

platform impossible to ignore. The Panthers also applied<br />

U.S. law to their daily activism. For instance, when police<br />

stopped a Black person, ?a Panther patrol would arrive on<br />

the scene, brandishing their weapons and carrying a law<br />

book from which to cite specific violations.? 53 Through<br />

these displays, the Panthers defiantly complied with U.S.<br />

law and demonstrated that it was the Panthers, not the<br />

police, who truly upheld American law and abided by the<br />

Second Amendment. Over fifty years later, the founder of<br />

NFAC echoes this: ?<strong>No</strong>body says anything when other<br />

demographics pick up weapons, decide to arm themselves<br />

and confront the government over anything from wearing a<br />

mask to being cooped up in the house, but when certain<br />

demographics arm themselves all of a sudden people tend<br />

to act as if the Constitution doesn?t matter.? 54<br />

Taney deemed Black Americans gaining the Second<br />

Amendment as ?inevitably producing discontent and<br />

insubordination among them, and endangering the peace<br />

and safety of the State.? 56 The law always failed Black<br />

people regarding arms because the state intended it; it<br />

knew giving Black people the right to protect themselves<br />

threatened white supremacy, thus emphasizing the urgency<br />

of the Black self-defense claim through the state?s desire to<br />

quell it. The denial of arms to Black veterans after the<br />

Civil War also grew from fears that ?scenes of San<br />

Domingo? would recur. 57 Invoking the Haitian Revolution<br />

implies that the state dreaded Black people obtaining arms<br />

because the state also recognized how severely it violated<br />

the rights of Black people. It seemingly understood that<br />

extending these protections would result in Black people<br />

finally being able to defend themselves not only against<br />

The Black Claim to Self-Defense and Advocacy for<br />

fellow Americans but state institutions as well.<br />

Arms<br />

In the Red Summer, Black men armed themselves almost<br />

The multitude of ways the state unconstitutionally denied<br />

Black people the same access as white people to the<br />

Second Amendment, and the advocacy of Black groups for<br />

their right to bear arms, prove the distinct and significantly<br />

more lawful claim to self-defense and militias that Black<br />

exclusively in self-defense, depicting the explicit and<br />

articulable Second Amendment claim that Black people<br />

had and their white counterparts did not. 58 Undeniably, the<br />

white mob led the attack, and the Black men of the city<br />

organized in defense. Only one of these two groups abided<br />

people possess. Spooner also argues in The<br />

by the Second Amendment and possessed an articulable<br />

Unconstitutionality of Slavery that ??to keep and bear<br />

arms,?is a right palpably inconsistent with the idea of his<br />

and far more urgent claim to its protection of self-defense,<br />

yet that group was not the one the state protected that day.<br />

being a slave.? 55 By tying slavery to the Second<br />

After Chief of Police Raymond Pullman refused a request<br />

Amendment, Spooner indicated how the fight to bear arms<br />

harkens back to the racist institutions that undermined<br />

Black personhood. But he also revealed how the<br />

government prevented Black access to guns because it,<br />

too, acknowledged the validity of the Black claim to<br />

from the local NAACP branch to mobilize Black troops,<br />

the NAACP replied that the Black men of the city ?had<br />

determined not to stand up and be shot down like dogs?<br />

and were ?prepared to protect their families and<br />

themselvesand would do so at all hazard.? 59<br />

self-defense and sought to silence it. In Dred Scott, Justice<br />

53. John A. Courtright, ?Rhetoric of the Gun: An Analysis of the Rhetorical Modifications of the Black Panther Party,? Journal of Black Studies 4, no. 3 (March 1974),<br />

253.<br />

54. Chavez, Young, and Barajas.<br />

55. Spooner, 116.<br />

56. Dred Scott, 60 U.S. at 417.<br />

57. Berry, 16.<br />

58. Krugler, 28.<br />

59. Ibid.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

Failed by the state obligated to protect them, Black men longer, more unbending battle against the forces of hell in<br />

exercised their Second Amendment right out of a distinct our own land.? 62 Though DuBois did not necessarily refer<br />

need to defend themselves and their community, fighting to the use of arms, by recognizing that the freedoms Black<br />

to reclaim what the white mob sought to take and that veterans fought for were not theirs to keep, he encapsulates<br />

which the state cared little to stop. In another letter how Black people had a stronger claim to self-defense in<br />

between Thomas and Grimké, the pride in Thomas?s tone its truest sense, whether or not the Second Amendment<br />

is palpable when he writes that Black men armed protected it as it should.<br />

themselves on the rooftops of D.C., ?declaring their<br />

In 1921 in Tulsa, the Black community faced an increasing<br />

purpose to die for their race.? 60 Such praise encapsulates<br />

threat of lynchings, and Black newspapers started to advise<br />

the sentiment among many Black activists that their need<br />

readers to obtain arms for protection against such attacks. 63<br />

for arms in the name of self-defense was not only crucial<br />

These calls to action depict self-defense for Black people<br />

to their survival but a rallying cry for their liberation,<br />

as necessary for their survival, which, in this case, it was.<br />

simultaneously demonstrating legal obedience and state<br />

During the events leading up to the Tulsa Race Massacre,<br />

resistance.<br />

Black men only armed themselves in the first place<br />

<strong>No</strong>r was this the only time in the Red Summer that Black because rumors spread that a white mob planned to lynch a<br />

men took up arms to defend their communities when the young Black boy named Dick Rowland, who was charged<br />

state failed or refused to do it for them. In one letter sent to with assaulting a white girl. 64 From the beginning, Black<br />

Grimké that detailed the violence in Knoxville, Thomas men took up arms in defense, either of themselves or Dick<br />

writes, ?Blacks set up a rough perimeter at the entrance to Rowland. Doing so was both lawful and demonstrative of<br />

their area, just northwest of downtown. They shot out their distinct and even more necessary claim to<br />

streetlights and overturned a gravel truck to strengthen self-defense. The Black Dispatch of Oklahoma City<br />

their defensive position.? 61 The phrasing of ?defensive reprinted a story published by the Tulsa Tribune about<br />

position? emphasizes how Black men used arms within the Rowland?s case with a new headline? ?The False Story<br />

law though they were treated otherwise, while white Which Set Tulsa on Fire?? blaming the Tribune for<br />

people behaved illegally with state protection. In other inciting violence, an accusation proven true when the<br />

words, it reflects the simultaneously backward application Tribune later, allegedly, admitted to publishing false<br />

of the Second Amendment and more urgent claim to it for information. 65 The falsification of the story that catalyzed<br />

Black people. Appealing to soldiers returning from World the massacre highlights how white people enabled and<br />

War I amidst the violence of 1919, W. E. B. DuBois encouraged racial violence, against which Black people<br />

decried, ?By the God of Heaven, we are cowards and had every right? more of a right? to defend themselves.<br />

jackasses if now that the war is over, we do not marshal As previously discussed, white police officers deputized<br />

every ounce of our brain and brawn to fight a sterner, and armed a ?bloodthirsty mob? to attack Black men who<br />

60. Neval Thomas to Archibald Grimké, July 28, 1919, box 39-28, folder ?July 1919,? Archibald Grimké Papers, Moorland-Spingarn Research Center, Howard<br />

University.<br />

61. McWhirter, 177.<br />

62. W.E.B. DuBois, ?Returning Soldiers,? The Crisis 18 (May 1919): 14.<br />

63. Brophy, 130.<br />

64. Ibid., 62-64.<br />

65. Ibid., 64.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


carried guns to prevent the lynching. 66 Black people were<br />

often the targets of armed white people, including civilians<br />

and those within the state apparatus, so why were they<br />

barred from defending themselves. A clear distinction<br />

manifested in how the Second Amendment applied to<br />

different races, further proof that Black people experienced<br />

a greater need for self-defense.<br />

Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

Further, the Ten-Point Program of the Black Panther Party<br />

cites the Second Amendment as central to combating<br />

police brutality by enabling the creation of armed<br />

self-defense groups intended to protect the Black<br />

community. 67 Framing the Second Amendment in this way<br />

demonstrates the lawfulness of armed Panthers along with<br />

the uniqueness of their self-defense claim. The Panthers,<br />

initially called the Black Panther Party for Self-Defense,<br />

were targeted by the police; it was the state from which<br />

they needed protection, a threat inapplicable to the white<br />

lived experience. On December 4, 1969, 14 police officers<br />

in Chicago murdered two Panthers? Fred Hampton and<br />

Mark Clark? while they slept, claiming their deaths<br />

resulted from a shoot-out even though Hampton and Clark<br />

only managed to fire once in response. 68 The Panthers<br />

undeniably shot their single bullet in self-defense. Yet<br />

again, the police broke the law and became the real<br />

?criminals? and ?threat? denounced by Agnew and<br />

Hoover, proving the arguably more lawful and more<br />

American claim to self-defense applicable to Black people.<br />

In a 1972 Associated Press article, Huey Newton explained<br />

that the Panthers recently opted to reject the ?rhetoric of<br />

the gun? after ?it got about forty of us killed and sent<br />

hundreds of us to prison.? 69 The Panthers moving away<br />

from arms advocacy speaks to the cyclical relationship<br />

between Black people and arms: white civilians and the<br />

state killed them, so they acquired guns to defend<br />

themselves, and then they were killed for defending<br />

themselves. They strove to take back their Second<br />

Amendment right as permitted by the law, while the state<br />

acted extralegally and bore no consequences for it,<br />

emphasizing why the claim Black people possess to<br />

self-defense certainly differs from and even outweighs that<br />

of white individuals.<br />

Race as Actual and Articulable<br />

I now return to the contemporaneous and ongoing case at<br />

hand: New York State Rifle & Pistol Association v. Bruen.<br />

Members of the gun advocacy organization New York<br />

State Rifle & Pistol Association (NYSRPA), Robert Nash<br />

and Brandon Koch, applied for gun licenses in New York,<br />

a process which requires showing ?proper cause? for<br />

self-defense. When their requests for their licenses to<br />

include self-defense were rejected by Justice Richard<br />

McNally of the New York Supreme Court, Third Judicial<br />

District, for not showing ?proper cause,? Nash and Koch<br />

brought forth a Section 1983 suit in response. Both men<br />

had been granted restricted licenses for hunting and target<br />

practice but argued that not having their license expanded<br />

to include self-defense violated their Second Amendment<br />

rights. Their suit was dismissed by the district court judge<br />

in the <strong>No</strong>rthern District of New York. NYSPRA appealed<br />

this decision to the United States Court of Appeals for the<br />

Second Circuit, but, again, the claim was dismissed, this<br />

time by the Second Circuit. Despite three court systems<br />

rejecting NYSPRA?s argument, the Supreme Court granted<br />

he plaintiff's petition for certiorari on April 26, 2021.<br />

70 71<br />

The plaintiffs did not file suit because of racial<br />

discrimination but rather in response to what they deemed<br />

66. Ibid., 20.<br />

67. ?The Black Panther Party Ten-Point Program.?<br />

68. ?Police kill two members of the Black Panther Party,? History, <strong>No</strong>vember 13, 2009, https://www.history.com/this-day-in-history/police-kill-two-members-of-theblack-panther-party.<br />

69. Courtright, 250-251.<br />

70. A writ of certiorari is filed when a party loses a case in a lower court and appeals the decision to a higher court. It is most commonly associated with the Supreme<br />

Court, as it is here. See: ?Certiorari,? Legal Information Institute, Cornell <strong>Law</strong> School, https://www.law.cornell.edu/wex/certiorari.<br />

71. Baldwin and Gust.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

a violation of their Second Amendment rights. They argue<br />

that the Second Amendment is ensured to all Americans<br />

under the Constitution, self-defense included, and that the<br />

New York law at hand disregards this. But as the numerous<br />

examples in this paper have demonstrated, this often has<br />

not been true, at least not for all Americans, and Black<br />

Americans in particular. The Joint Appendix of the<br />

Supreme Court on this case mentions race and Black<br />

people specifically in very few but very notable ways: (1)<br />

?For decades before the Civil War, the southern States had<br />

schemed at every turn to prevent their enslaved and free<br />

black populations from bearing Arms?; (2) ?After the Civil<br />

War, these noxious efforts to suppress the rights of former<br />

slaves to carry arms for self-defense continued.<br />

Mississippi?s notorious ?Black Code,?for example, forbade<br />

?freedman, free negro or mulatto? to ?keep or carry<br />

fire-arms of any kind?; and (3) ?Congress?s efforts<br />

culminated in the adoption of the Fourteenth Amendment,<br />

which ensured the right of every American, regardless of<br />

race, to ?bear arms for the defense of himself and family<br />

and his homestead.??<br />

72 73 74<br />

Like this paper, the Joint Appendix of the Supreme Court<br />

raises the intersection of racism and the Second<br />

Amendment, referencing everything from the Black Codes<br />

to McDonald. 75 But unlike this paper, the Joint Appendix<br />

does not interrogate whether this racism, unexperienced by<br />

white people and somewhat irrelevant to the experiences of<br />

the plaintiffs, counteracts the argument of the plaintiffs by<br />

further supporting the proposed requirement of a ?proper<br />

cause? for self-defense. It does not engage with the<br />

continued differential treatment of white and Black people<br />

before the law established by the Second Amendment, nor<br />

does it concern itself with the significantly higher<br />

frequency at which Black people are killed, typically by<br />

white civilians and law enforcement, in the name of<br />

?self-defense.? Much like in McDonald with the NRA, the<br />

plaintiffs appear to put the racism of the Second<br />

Amendment on trial for the sake of those who do not<br />

experience it. Instead of asking what should be done about<br />

this racist history, it seems to ask how this racist history<br />

can serve the ends of gun activists, regardless of their race.<br />

Indeed, Tom King, President of NYSRPA, is a white man<br />

and one of the main challengers in this case. 76 The Joint<br />

Appendix, in calling out these racist moments, further<br />

reveals the disparate treatment of Black and white people<br />

under the Second Amendment. While the case New York<br />

State Rifle & Pistol Association v. Bruen concerns the<br />

constitutionality of a ?proper cause? for self-defense, the<br />

racist history and current applications of the Second<br />

Amendment could offer a reason to further specify what a<br />

?proper cause? is rather than to strike it. In many states in<br />

which ?proper cause? legislation does not exist and<br />

concealed carry is not restricted, Black people are killed<br />

for possessing arms even with an ?actual and articulable?<br />

need to do so, as seen in the murders of people like<br />

Philando Castile, a Black man who informed a police<br />

officer he carried a legally obtained gun but was shot by<br />

this police officer when reaching for his license. 77<br />

Conversely, Kyle Rittenhouse, a white minor who illegally<br />

possessed a gun and ended two lives with it, faced no legal<br />

punishment because his claim to self-defense was upheld<br />

by the court he was tried in, even though he acted<br />

extralegally. 78 Only one of these two men survives today.<br />

72. New York State Rifle & Pistol Association Inc. v. Bruen, J.A. 20-843 74 (2021).<br />

73. Bruen, J.A. 20-843 at 75.<br />

74. Bruen, J.A. 20-843 at 76.<br />

75. Bruen, J.A. 20-843 at 75-76.<br />

76. Andrew Chung, ?New York judge's gun permit denials trigger big Supreme Court case,? Reuters, October 28, 2021, https://www.reuters.com/legal/government/<br />

new-york-judges-gun-permit-denials-trigger-big-us-supreme-court-case-2021-10-28/.<br />

77. German Lopez, ?Philando Castile Minnesota police shooting: officer cleared of manslaughter charge,? Vox, June 16, 2017, https://www.vox.com/2016/7/7/121162<br />

88/minnesota-police-shooting-philando-castile-falcon-heights-video<br />

78. Melissa Chan, ?In the Kyle Rittenhouse Trial, Self-Defense Took Center Stage,? TIME, <strong>No</strong>vember 19, 2021, https://time.com/6120607/kyle-rittenhouse-selfdefense/.<br />

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Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

Only one broke the law. New York State Rifle & Pistol murders of George Floyd, Breonna Taylor, and other<br />

Association v. Bruen, then, deals with what appears to be unarmed Black people by police. ?I did so not because of<br />

hypocrisy: the plaintiffs argue that all people have the right the violence in the urban communities that have shaped<br />

to self-defense, ironically invoking the experiences of the me,? stressed Jones. ?I did so because I felt that America?s<br />

people for whom this right has never truly been respected racism was about to boil over in violence.? 80 Jones shared<br />

while taking no steps to rectify this.<br />

his fear that striking down the New York state law would<br />

allow more Americans to carry concealed weapons,<br />

Thus, could being a Black person in the United States<br />

regardless of their reason for wanting to do so, increasing<br />

qualify as a proper cause for a gun license that specifies<br />

the capacity for violence against Black people. But Jones<br />

self-defense? As discussed previously, protected class<br />

also admits he believes in Second Amendment protections,<br />

legislation works to identify certain groups of people that<br />

and has exercised this right himself; however, he<br />

require additional protection from the government against<br />

encourages carrying arms amongst the Black community<br />

discrimination, harassment, and harm. On a federal level,<br />

not as a physical attestation to his freedom as an American,<br />

the Department of Justice recognizes hate crimes as crimes<br />

but because he firmly believes his life and the lives of<br />

committed based on the race, color, religion, national<br />

other Black people are further threatened without<br />

origin, sexual orientation, gender, gender identity, or<br />

possessing a means to self-defense.<br />

disability of the victim and the motivation of the<br />

81<br />

perpetrator. Though states differ in their applications of The Supreme Court, in forcing this New York state law<br />

hate crimes laws, many necessitate that for a crime to be into the public eye, has raised an accompanying issue of<br />

considered a hate crime, there must be bias involved. 79 relevance: what is self-defense? What is a valid claim to<br />

This is all to say that the United States already enforces self-defense? The Second Amendment protects the right to<br />

policies that concern harm done to protected groups. But if self-defense, and the firing of a gun at another person<br />

this were to extend beyond harm response and to requires an articulate and actual need for self-defense. The<br />

preventative measures, could that be done by introducing lived experiences such as that of Jones support the idea<br />

protected class legislation to self-defense? Could a proper that Blackness, as a protected identity and oppressed<br />

cause to carry arms be one?s status as a member of a group, invokes an inherent threat in the United States.<br />

protected group? Is the question the Supreme Court should Thus, Blackness could logically qualify as an ?actual and<br />

be asking not if proper cause gun permit laws are articulable? need. Though I make no assertions that this<br />

constitutional, but if certain groups of people can be should be the case, for all the reasons I have carved out<br />

recognized as having proper cause?<br />

throughout this paper, if there were to be a ?proper cause?<br />

to carry a concealed weapon, it seems that a protected class<br />

In a 2021 op-ed for The Philadelphia Inquirer, author<br />

historically targeted both by the law and comparatively<br />

Solomon Jones expresses an oft-overlooked perspective<br />

privileged groups regarding the Second Amendment would<br />

when it comes to the public carrying of arms. Jones<br />

qualify.<br />

explains how, for the first time in his life, he purchased a<br />

firearm in the summer of 2020 during the protests and Conclusion<br />

racialized violence that broke out in the wake of the<br />

After attending the NFAC rally in Lafayette, one woman<br />

79. ?Federal <strong>Law</strong>s and Statutes.?<br />

80. Solomon Jones, ?A Supreme Court ruling on 2nd Amendment could lead to more deaths of Black people | Solomon Jones,? The Philadelphia Inquirer, April 28,<br />

2021, https://www.inquirer.com/opinion/supreme-court-2nd-amendment-case-gun-laws-rights-safety-20210428.html.<br />

81. Ibid.<br />

<strong>Brown</strong> <strong>Undergraduate</strong> <strong>Law</strong> <strong>Review</strong><br />


Race as the Right to Self-Defense: The Legal History Invoked by New York State Rifle & Pistol Association v. Bruen<br />

named Kristen Colemon told CNN that, in a change of manipulated self-defense as a means to murder Black<br />

pace, her 9-year-old daughter ?knew those guns were there people, Black people retain a distinct claim to it.<br />

to protect her not to hurt her.? 82 But in October 2021, a<br />

Yet, until May 2021, a memorial stood in Colfax,<br />

grand jury in Kentucky indicted NFAC?s Johnson on five<br />

Louisiana, dedicated to the ?heroes? of the 1873<br />

counts of first-degree wanton endangerment for allegedly<br />

massacre? the three white men who died. 85 Thus, the<br />

pointing a gun at law enforcement, to which he pleaded not<br />

Black self-defense claim is one against white people and<br />

guilty. 83 In Kentucky, this charge entails someone engaging<br />

white state actors simply unmatched by that of the white<br />

in conduct that ?creates a substantial danger of death or<br />

people who enjoy full access to the Second Amendment<br />

serious physical injury to another,? a class D felony. 84<br />

even when it does not apply. While I make no firm claim<br />

Have Johnson?s actions caused ?substantial danger?? Has<br />

that race should be deemed an actual and articulable reason<br />

he acted extralegally? Or has he defended his community,<br />

for self-defense, I do argue that the legal and historical<br />

a protected minority class, from threats against it, law<br />

basis for doing so is sound. If arms are intended for<br />

enforcement included? Has he identified an actual and<br />

self-defense, as we have seen argued in cases of white law<br />

articulable claim to arms?<br />

enforcement officers murdering lawfully armed Black men<br />

As portrayed through the legal lies told of the Second like Philando Castile and the state protecting armed white<br />

Amendment, the state?s forcible arming of Black men in shooters like Kyle Rittenhouse, is racism not a real and<br />

wartime but denial of the same during peace, the identifiable threat? Undeniably, it is a force against which<br />

unconstitutionality of restricting the access of Black people self-defense is valid and even necessary. However, even if<br />

specifically to self-defense and militias, and the Black the Supreme Court strikes down the New York law, which<br />

advocacy for arms as a means to liberation, Black people it is likely to do, it will not be for the reasons I have<br />

possess a distinct and more lawful claim to self-defense described: in a majority conservative Court, the concern is<br />

and armed militias that differs from and outweighs that of not of racial justice, but of gun ownership. In the words of<br />

white people. Rather than carrying guns in the name of Cottrol and Diamond, for those who ?shape . . .<br />

revolution, Black Civil War and World War I veterans, constitutional policy, the state's power and inclination to<br />

Black Panthers, and, more recently, NFAC members, took protect them is a given. But for all too many black<br />

up arms in a reclamation of the Second Amendment. Yet Americans, that protection historically has not been<br />

while white supremacist militias existed with little available.? 86 If protection is not freely given to Black<br />

consequence or were encouraged by the state, Black people, then perhaps it must be taken in the form of<br />

groups consistently experienced the fewest benefits and self-defense.<br />

suffered the most infringements on the right to bear arms.<br />

White people never needed governmental oversight to<br />

access their rights; Black people only could do so with it.<br />

If the Second Amendment entitles all Americans to<br />

self-defense, and if white people have historically<br />

82. Chavez, Young, and Barajas.<br />

83. Billy Kobin, ?'Grandmaster Jay' pleads not guilty in latest case linked to Louisville protest,? Louisville Courier Journal, October 20, 2021,<br />

https://www.courier-journal.com/story/news/crime/2021/10/20/nfac-leader-grandmaster-jay-indicted-jefferson-county-louisville-grand-jury/7948336002/.<br />

84. Ky. Rev. Stat. § 508.060 (effective January 1, 1975).<br />

85. Thomas Howell, ?The Colfax Massacre: An Essay <strong>Review</strong>,? Louisiana History: The Journal of the Louisiana Historical Association 51, no. 1 (Winter 2010), 74.<br />

86. Cottrol and Diamond, 359.<br />

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