Domestic Law

Obama v. Judicial Review: An Executive Challenge to Judicial Tradition

Obama v. Judicial Review: An Executive Challenge to Judicial Tradition
By Ephraim D. Abreu

“There is not only an economic element to this, a legal element to this, but there is a human element to this. And I hope that’s not forgotten in this political debate. Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress. And I would like to remind conservative commentators that for years what we have heard is that the biggest problem is judicial activism and that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I’m pretty confident this court will recognize that and not take that step.” [1]

The Power of Eminent Domain: A History of Abuse

The Power of Eminent Domain: A History of Abuse
By Michelle Rodriguez

Governments have been taking property from their constituents for hundreds of years.  The 1215 Magna Carta demonstrates that these seizures were not taken lightly and attempts to prevent similar seizures from reoccurring: “No freeman is to be taken or imprisoned or disseized of his free tenement or of his liberties or free customs.”^[1] Although the concept was not fully acknowledged by government officials until years later, this famous document nonetheless laid the foundation for the theory of property rights laws.  Unsurprisingly, these restrictions on the government’s right to seizures, which prevent the abuse of private property and individual rights, were included in the Constitution of the United States, the nation conceived as a symbol of liberty and revolution against tyranny. The Fifth Amendment echoes the ideas declared in 1215: “No person shall be…deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.”^[2]  Yet the final words of this statement, called the Takings Clause, added a new and oft manipulated dimension to liberty. With these simple words, the government’s power of eminent domain was established. The power of eminent domain has been repeatedly misused and manipulated, violating rights, causing suffering and hardship, and morphing into a dangerous and unconstitutional tool.

The concept of eminent domain is simple: the federal, state, or local government can reclaim  land by law, if it pays the owner  some “just” amount for the property. Although the motives for its usage have been recently contested, the power of eminent domain was established with the intent of allowing the government to develop public works projects and infrastructure. Currently, all the government must do is make an effort to buy the land in question or provide “just compensation;” if the offer is denied, the two parties go to court. In court, the government must demonstrate the attempt to purchase the property justly, and if it can do so and justify its reasons for wanting to acquire the land, the sale occurs, regardless of whether or not the property owner consents. While fundamentally a logical concept, a problematic and flawed system has resulted from this abuse of power. James Madison, one of the main proponents of eminent domain and the author of the Bill of Rights, warned of potential abuse of such a great power in his essay “Property” which explains that “Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.”^[3]

The power of eminent domain was originally an exclusively federal power. The ratification of the Fourteenth Amendment extended this power to the states, but Supreme Court decisions in the 1870s  “refused to extend the just compensation requirement of the Fifth Amendment to the states under the Fourteenth Amendment,” and consequently, abuse of the power was common.^[4] Twenty eight years after the ratification of the Fourteenth Amendment, the “just compensation” clause was applied to the states by Chicago, Burlington & Quincy Railroad v. Chicago, in which the Bill of Rights was declared to also apply to the actions of state governments, in an attempt to shut the door on this series of uncompensated takings and other abuses.^[5]  Unfortunately, these abuses continued: “… the Court had allowed regulations to close down an urban brickyard (1915), to destroy a diseased cedar grove to protect a nearby apple orchard (1928), and to effectively shut down a gravel quarry in a developing suburb (1962)—all without compensation to the owners.”^[6]

After the powers of eminent domain were granted to the states, they were extended to include local governments.  Dispersal of the power did not stop there: “In addition to exercising the eminent domain power itself, Congress may delegate it to ‘private corporations to be exercised by them in the execution of works in which the public is interested,’ such as railroad and utility companies.” ^[7] The inclusion of private companies marked a new era in eminent domain and property rights abuses, as well as a new range of reasons for re-appropriating property were presented.

The 1954 Supreme Court case Berman v. Parker  signaled this transformation, as the power of eminent domain began to be used to re-appropriate blighted properties for gentrification and economic development. In Berman, the District of Columbia Redevelopment Land Agency attempted to take and develop a blighted neighborhood in Southwest Washington, D.C. The plaintiff owned a department store in the neighborhood which was not blighted, but still under threat of condemnation because it lay in the area. The Supreme Court’s decision describes the idea that the bulldozing of a slum or redevelopment of only certain plots is not enough; in order to “fix” the slum or blight, the entire area needs to be re-planned and structured. Justice William Douglas explained that in the redevelopment of a blighted area or slum, properties that are not in a compromised condition can be re-appropriated if they interfere with the plans for the new area.^[8] As a result,  usage of the term “blight”  to rationalize property takings increased, and relatively undamaged property began to be reclaimed for “economic redevelopment”.^[9] 

In the years that followed, the use of eminent domain for economic purposes and by third parties exploded. The Institute of Justice documented over ten thousand cases of filing or threatening for re-appropriation by eminent domain between 1998 and 2002.^[10] One of the most dramatic of these instances received national attention in the case Poletown Neighborhood Council v. City of Detroit in 1981. Here, the City of Detroit attempted to take a blighted neighborhood in the hopes that razing it would allow a local General Motors factory to expand, creating more jobs and higher revenue.  Despite popular opposition, the court allowed the re-appropriation^[11]. Sit-downs and public protests were staged to no avail. The effects of the decision were devastating to the Detroit neighborhood:  “It was industrial urban renewal on a grand scale: within 18 months of the announcement of the project, 1,500 homes, 144 businesses, two schools, a hospital, 16 churches, and an abandoned reinforced concrete automobile assembly plant…were gone, and 3,435 citizens had to be relocated.”^[12]

The most famous case involving the abuse of the power of eminent domain was Kelo v. The City of New London:

“In this case, it was the houses of Susette Kelo and several of her neighbors in New London, Connecticut. They had steadfastly refused the city’s offers to buy their property to make way for a riverside redevelopment project. City officials hoped to bring new jobs and additional tax revenue by luring a new [Pfizer] pharmaceutical plant to the area, along with a hotel, restaurants, and a pedestrian ‘riverwalk’. But Kelo wanted to stay in her house, and she went to court arguing that city-sponsored private development did not amount to ‘public-use’”.^[13]

Kelo’s seven year battle and her small, bright Victorian cottage became a symbol for a fight to reign in the government’s usage of eminent domain and restore private property rights. Unfortunately, in a 5-4 Supreme Court decision, the efforts of the New London Development Corporation to kick Susette Kelo out of her house were deemed constitutional. Public reactions to the decision were overwhelmingly negative, and the story made national headlines, prompting many to question the power of eminent domain and the usage of the power.

The Supreme Court’s decision in Kelo had terrifying ramifications for property owners, implying that it would be constitutional for governments to take property and pass it to developers if they merely thought that the property might generate profit. No plans for renovation or conversion of the property are necessary for the deal; “In fact, Kelo encourages cities to condemn first and find developers later.”^[14]  As had happened after Berman, new types of eminent domain applications ensued because private development was now deemed an acceptable reason for usage of the power.

In the years since the Kelo decision, several states have attempted to limit the abuses of eminent domain occurring within their borders and prevent these types of offenses from reoccurring. In 2004, in County of Wayne v. Hathcock, the Supreme Court of Michigan, to the satisfaction of many, reversed the Poletown decision.^[15] In 2006, Florida ratified a bill which states that elimination of blight or a slum is not adequate reason for use of eminent domain.^[16]

Many other states have followed suit to differing degrees. Even President George W. Bush made a public effort to stop the pattern of abuse: on the one year anniversary of the Kelo decision, he declared an Executive Order entitled “Protecting the Property Rights of the American People”, which stated that the government cannot take private lands merely for economic interest or pass them to a private party for non-public purposes.^[17] A bill is working its way through Congress,  presently in committee in Senate, further attempting to correct usage of eminent domain.^[18] Hopefully the movement to curb the practically uncontrolled usage of this powerful provision will continue until the system has been amended and property rights are once again recognized and respected.

Michelle Rodriguez is a first year in the College, majoring in Political Science and minoring in Human Rights.

In Defense of Federalism

In Defense of Federalism: An Originalist Case for a Limited Interpretation of the General Welfare Clause
By Spencer McAvoy

Ever wonder why, as a legal adult, one is empowered to join the armed forces, marry, and purchase firearms, but not to drink in a single one of our fifty states? Whether one is a twenty-year-old marine with a family who is not allowed into a bar, or just a college student who wants to legally buy a beer, one should be aware that the “New Deal” Court is to blame. In three separate decisions decided between 1936-1938, the Court used a broad interpretation of the “General Welfare Clause,” of Art. 1 Sec. 8 of the Constitution to radically expand the taxing, spending, and regulatory powers of Congress. As a result of United States v. Butler (1936), Steward Machine Co. v. Davis (1937) and Helvering v. Davis (1937), the principle of federalism is given only fleeting lip-service. The combination of the political pressure levied by President Roosevelt via his court-packing scheme, and massive public support for the “New Deal” programs, corralled the Court into a compromise far more destructive than the potential harm that it averted. In these three landmark cases, the Supreme Court not only dealt a significant blow to the federalist system, but also legalized the national subsidizing of special interest groups.  Because of Butler, Steward, and Helvering, our government now subsidizes everything from albino squirrels[1] to mohair farming[2]. Moreover, the decision in South Dakota v. Dole (1987), which allowed the federal government to withhold funding to induce states to adopt legislation rested on the precedent, was set by these three General Welfare cases.

James Madison believed that the General Welfare Clause was simply part of the introduction to the enumerated powers, and, therefore, conferred no powers independent of those listed. Arguing this interpretation, he wrote in Federalist No. 41, “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.” Moreover, both the Ninth and Tenth Amendments expose the dearth of logic in claiming that the General Welfare Clause represents a standalone power. The Ninth stipulates that, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” (italics my own). And the Tenth reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The former suggests a significant discontinuity in assuming that unenumerated powers exist for the Federal Government. That the Framers felt they needed to specify that enumerated rights did not preclude the existence of other rights implies that without explicit contravention, enumeration has a definite prohibitory nature. Similarly, the Tenth Amendment clearly demonstrates the intent to confer limited federal power.

The flaws of a broad reading of Art. 1 Sec. 8 are further exposed by the historical incompetence demonstrated by the Court in defining what sort of issues are of national or general concern. This supposed limiting standard, cited by Cardozo in Steward, was established in Butler, in which the Hoosac Mills Corporation challenged the Agricultural Adjustment Act (AAA) of 1933. Writing for the majority, Justice Roberts also became the first to establish the broad interpretation of the General Welfare Clause as legal precedent.^[3] The court struck down the act, not because of General Welfare or taxing objections, but because of the regulatory aspect of the AAA. Roberts paid close attention to the intent of the Act, and the tax, which was clearly regulatory, an issue which would also arise in Steward and Helvering. Roberts also wrote, however, that, “The power to tax and spend is not without constitutional restraints. One restriction is that the purpose must be truly national. Another is that it may not be used to coerce action left to state control.”[4] In Steward,[5] and Helvering,[6] unemployment and care for the elderly are held up as examples of national issues. But it is unclear how these are not local issue. For, while unemployment, as well as care of the elderly, is a ubiquitous issue, these populations vary significantly from state to state[7].

Although these statistics are more recent, the National Bureau of Economic Research published a study in 1960 demonstrating the vast disparities in population, per capita income, and proportion of agricultural and industrial labor force between the various states in the 1930′s.[8] These discrepancies demonstrate wide variation in living standards between different states and regions in the 19^th and earth 20^th centuries, suggesting deviation in population composition and economic well-being. This is exactly why the federalist system exists in the first place. Local governments are more accountable to their voters, better acquainted with the precise needs of their constituents, and are less likely to get away with unnecessary spending and regulation. Examples of truly national concerns are the coinage of money, the provision of a standing army, patent laws, tariffs, and immigration legislation. It is not a coincidence that these powers are among those enumerated in Art. 1 Sec. 8.

Despite his interpretation of the General Welfare Clause, Justice Roberts’s opinion for United States v. Butler demonstrated a certain level of restraint completely absent from Steward, Helvering, or Dole. Though the Court did not strike down the Agricultural Adjustment Act for all of the right reasons, wherever it opposed the AAA its reasoning was sound. The verdict was centered on the power to regulate, and thus tangential to the debate about the taxing powers granted in Art. 1 Sec. 8. But Roberts wrote that the regulation could not be separated from the tax, and that, furthermore, “A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group to another.”[9] Though Roberts cites only one case[10] in support of this claim, the extent to which precedent supported his interpretation of taxation is evident in the fact that income transfers simply did not exist on a national scale prior to the New Deal. Roberts continued, “We may concede that the latter sort of imposition is constitutional when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation. But manifestly no justification for it can be found unless as an integral part of such regulation. The exaction cannot be wrested out of its setting, denominated an excise for raising revenue, and legalized by ignoring its purpose as a mere instrumentality for bringing about a desired end”[11] (italics my own). Not only did the Court chose to ignore this warning, it did not even acknowledge that it was creating a new definition of taxation when deciding Steward Machine Co. v. Davis.

Justice Cardozo’s opinion in Steward had many flaws, but his development of the meaning of coercion was particularly egregious. In this case, the Social Security Act was upheld by a vote of 5-4. The Court dismissed the challenge by an Alabama corporation to Titles IX and II, which detailed unemployment benefits and a tax and credit measure. This measure would allow employers in states that established their own unemployment legislation to credit away up to 90% of the excise. Plainly, the intent of the Act was not revenue, but compulsion. Writing for the majority, Cardozo held that, “…to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.”[12] In writing this, he was referencing a portion of the opinion written the previous year for Butler. He took this idea of coercion, mentioned only twice by Roberts and never as a crucial criterion, and ignored the rest of Roberts’s writing on the relationship between taxation and regulation. For example, Roberts wrote, “The farmer, of course, may refuse to comply, but the price of such refusal is the loss of benefits. The amount offered is intended to be sufficient to exert pressure on him to agree to the proposed regulation. The power to confer or withhold unlimited benefits is the power to coerce or destroy.”[13] Clearly, the point of contention for Roberts is the idea that the government may incentivize certain behavior using taxes or subsidies. Furthermore, Justice Butler wrote a dissent for Steward in which he claimed, “…as federal demands similarly conditioned [to the Social Security tax and credit scheme] may be increased from time to time as Congress shall determine, possible federal pressure in that field is without limit.”[14] Not only are Federal incentive schemes inherently coercive, but Cardozo’s claim that the Act, as written, does not represent coercion is specious. Once the Social Security Act’s tax and credit scheme was declared constitutional, Congress was free to increase the tax as much as necessary to impel the states to submit.

In Steward, Cardozo referenced his belief that the states were incapable of providing the necessary relief for the unemployed. But in Helvering, which involved Title VIII or transfer payments to the elderly and retired, he explained his rationale more thoroughly. Cardozo claimed that, “States and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared to their neighbors or competitors.”[15] Here, as in Steward, Cardozo reveals his lack of respect for federalism. His assessment of the effects of disparate tax burdens is entirely unfounded, as tax burdens at the time varied greatly from state to state, and the disparities have only increased with time.[16] In 1932, just five years before Cardozo wrote for Steward and Helvering, only fifteen of the forty-eight states even had an income tax, and states that did not have income tax did not necessarily have higher property taxes.[17]  There is no indication in the data that states were overly worried about imposing higher tax rates than other states in their region, or even their neighbors. Utah, for instance, had an income tax, despite also having higher property taxes, as a percent of total property value, than its neighbor Colorado.[18] Currently, the highest state tax burden for a family of three with an income of $50,000 is roughly five times the lowest state tax rate.[19] It is doubtful that states would have enlarged disparities in their taxing schemes if such differences truly put them at an economic disadvantage. So, if states lacked such legislation, it was because their constituents did not demand it. This is not a fault; this is federalism at its finest.

Not only did Butler, Steward, and Helvering, deal a significant blow to federalism, but they set the precedent that allowed the verdict in South Dakota v. Dole. Citing all three of those cases frequently, the Court held that the Federal government had the power to withhold highway funds from South Dakota unless the state changed its drinking age. Specifically, South Dakota faced a 5% reduction in funding for maintenance of interstate highways if it refused to raise its drinking age to twenty-one. The Court did not even question whether or not Congress had the right to pursue such a strategy under the power granted by the General Welfare Clause. In fact, in a remarkable display of circular logic, Chief Justice Rehnquist wrote, “We can readily conclude that the provision is designed to serve the general welfare, especially in light of the fact that ‘the concept of welfare or the opposite is shaped by Congress. . . .’”(internal citation omitted). The quote at the end is from Helvering v. Davis. Congress, therefore, can promote the general welfare, and the general welfare consists of whatever causes Congress chooses to promote. Ultimately, the Court held that the 5% funding penalty was not significant enough to be considered coercive. The states, the Court argued, still had a choice of whether or not to change their drinking age.  The fine implies that Congress has the power to pass regulations governing consumption of alcohol, and that South Dakota has violated these regulations; this is patently untrue. Under the U.S. Constitution, the people of South Dakota have the right to live much of their lives outside of the federal domain. They have the right to a local, accountable, and empowered state government. South Dakota v. Dole was a blow not only against states rights, but against the rights of U.S. citizens as well.

Thus, over the course of just two years the Court set the precedent for the erosion of state’s power to control their own legislation and legalized Federal transfer payments to special interest groups. In the Constitution, Congress is given neither the power to transfer income from one group to another, nor to impel the states to do so, yet there are thousands of examples of legislation that exist despite this fact. Americans pay taxes that subsidize mohair farmers, corn farmers, albino squirrels, and thousands of other objects of congressional benevolence, because of Butler, Steward, and Helvering. Citizens have lost much of the power of their voices because their state cannot determine the drinking age within its borders, its speed limit, or its own educational policy. Because of Butler, Steward, and Helvering No Child Left Behind imposed significant, and ineffective sanctions on  48% of our public schools this past year.[20] The federalist system is not functioning as was intended. It is one thing to treat the Constitution as a living document—this is productive and necessary. However, it is entirely insupportable to pervert constitutional language, such as the General Welfare Clause, to destroy systems the document was written to protect. It may be that Americans are no longer as distrustful of the Federal Government, and we desire an expansion of federal power, but this must be done through the amendment process in a way that clearly defines the federal domain. State legislatures were given a role in ratifying amendments for a reason, and this check must be respected. If it is not, the states will continue to lose these battles, as state governments are not capable of exercising the level of political pressure that President Roosevelt levied in the 1930′s. This is clearly what has occurred, for states have been losing for the past one-hundred years. And whenever the Court bypasses the amendment process and expands the federal government in an unconstitutional manner, not only do the states lose, but United States citizens lose as well.

Spencer McAvoy is a first-year at the College.

For A Stronger False Claims Act

For A Stronger False Claims Act
By Adam Swingle

During the time of great turmoil that was the American Civil War, certain unscrupulous individuals exploited a distracted federal government. Emboldened by the prospect of little to no regulatory oversight by a government that was stretched to its breaking point, these individuals sold the government faulty products, deliberately failed to honor contractual obligations, and in other ways chose to defraud the federal government[1]; in doing so, they illicitly took money from the public treasury for personal gain. In response to this crisis, Congress passed the False Claims Act, which authorizes civil and criminal penalties for fraud committed against the federal government.

An important feature of the Act’s design is its authorization of qui tam suits. Simply put, the Act allows private citizens to sue fraudulent “persons” on behalf of the federal government and also entitles them to 30% of the proceeds from a successful suit.[2] Congress recognized that detecting fraud is enormously difficult when an outside actor, like the government itself, is the one charged with the investigation; however, individuals who are in close proximity to the illicit action should detect it more easily. The hope is that those individuals will take the necessary action to police on behalf of the government.

However, what is of more interest due to its controversial nature is the question of the Act’s scope of liability. The Act’s reach is limited to “persons.” However, because the Act’s liability clause does not provide its own definition of “persons”, the question has consistently been raised as to what entities properly fall within this term. At the end of the twentieth century, many federal courts[3] and many scholars[4] addressed the question of whether or not individual states could be defined as “persons” and could therefore be sued under the Act; there was broad disagreement on the proper answer to this question. The conflict over the Act’s construction eventually made its way to the Supreme Court, where it was resolved in Vermont v. United States ex rel. Stevens.[5]

In this case, Vermont was being sued under the Act by a qui tam relator for allegedly falsifying data that the EPA used in its decision to send the state federal grants.[6] Seeking to avoid liability, the state proffered two arguments to the Court. First, Vermont contended that the term “‘person’ does not ordinarily include the sovereign States.” Since the statute’s “plain language” did nothing to change this order, Vermont asked the Court to assume that “States are not ‘persons’ who may be sued under the Act.”[7] Secondly, Vermont argued that, even if the Court found that the term “persons” included the states, Vermont should be given immunity from the sweep of the Act due to the Eleventh Amendment’s doctrine of state sovereign immunity.[8] A majority of the Court agreed with Vermont’s first argument, holding that the word “persons” in the statute could not include anybody other than individuals and corporations.[9] Yet, a close analysis of the majority’s reasoning reveals the erroneous nature of its holding, and counsels against its further application.

As stated, the Court, in order to reach its conclusion, opted to engage in a statutory interpretation of the Act. Its analysis thereby focused on the statute’s definition of “persons.” When opening its discussion of this term, the majority notes that the courts have a “longstanding interpretative presumption that ‘person’ does not include the sovereign.”[10] While the Court recognizes that this “presumption” is not a “hard and fast rule of exclusion”[11], it then identifies an improper standard for determining when it is appropriate to discard this presumption.

The Court says that the presumption may be “disregarded only upon some affirmative showing of statutory intent to the contrary.”[12] The Court supposedly derived this standard from the earlier case of United States v. Cooper.[13] However, the relevant language, in its entirety, reads as follows: “[t]he purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.”[14] While an “affirmative showing of statutory intent” could include the first four of Cooper’s factors, it does not include the final factor: the “executive interpretation of the statute.” It is true that Cooper’s factors are not inherently dispositive as they are simply “aids to construction.” Yet, considering the executive’s position in this case, it is curious why the Court mischaracterized Cooper’s language in order to adopt a standard that expressly ignores the value of the executive’s opinion.

Specifically, the executive in this case, through the Department of Justice, argued that states must be included in the Act’s construction of “persons.”[15] If the Court had recognized the instructive value of the executive’s opinion under Cooper, it should have, pursuant to other controlling authority, afforded the executive’s interpretation a great amount of deference.[16] The Court has explicitly recognized that the executive has the constitutional authority to make “policy choices-resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”[17] Considering that the False Claims Act’s definition of “persons” is unclear and that the Department of Justice is charged with the daily administration of the Act, the Court should have viewed as controlling the Department’s policy judgment regarding the scope of the Act’s liability provision. One could speculate regarding the Court’s motives in misconstruing various authorities in order to avoid affording the executive with the deference it deserved; however such speculation is immaterial. All that is probative here is that the Court improperly discarded the executive’s opinion. And if the Court had given this opinion the respect it deserved, the Court would have likely found that there was cause to disregard the interpretive presumption against including states in the definition of “persons.”

The Court then argues that, in another provision of the Act, Congress again used the term “persons” and decided, in this specific instance, to define the term to include the states.[18] Drawing upon this fact, the Court concluded that, since Congress must have expressly chosen not to include this same definition – or any definition at all  – in the relevant liability provision, it must have chosen to exclude states from liability.[19] However, under the Court’s prior precedents, this conclusion is erroneous.

As pointed out by the lower court in its analysis of the issue, the Supreme Court has consistently held that if Congress used “the same word in more than one section of a statute…Congress meant the word to have the same meaning.”[20] This rule of statutory construction is instructive here because, if followed, it would counsel that the term “persons” in the Act’s liability provision should be construed to include the states. Specifically, the liability clause is found in § 3730(b)(1). Nearby, the term “persons” is used in § 3729(a) and § 3730(a) and, in both instances, is defined to include the states.

So, when the Court states that the “absence” of a definition in the liability clause along with the “presence” of a definition in the surrounding sections means that the term “persons” must not include the states[21], the Court is wrong. It has disregarded the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.”[22] One could still argue that it is not the position of the clauses that matters but, instead, their content. In other words, if the focus of each clause is entirely different, definitional parity between the clauses need not exist. However, all three of these clauses center on articulating when and against whom qui tam relators may sue under the Act. The focus of these clauses is exactly identical and therefore the definition of “persons” in each should be the same. In other words, since “persons” is defined in two of the clauses to include the states, it should be defined in the same manner in the third clause: the liability provision.

Finally, the Court closes its opinion by “buttress[ing]” its holding with two other points “unnecessary to discuss at any length.”[23] First, it claims to follow “the ordinary rule of statutory construction” that “if Congress intends to alter the usual constitutional balance between States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.”[24] By saying this, the Court is effectively arguing that finding states liable under the Act would offend the concept of federalism[1] . Supposedly, since Congress expressed no concrete desire to do such a thing in its writing of the Act, states must not be held liable. Yet, this argument does not withstand scrutiny.

The argument is not valid because authorizing state liability under the Act would not alter the federal balance in the slightest; in fact, state liability here would only serve to enhance the goals of federalism. By joining the Union, the states consented to the federal government’s position of supremacy.[25] In other words, the states collectively agreed to subordinate themselves to the wishes of the federal government when its wishes did not entrench upon their own constitutionally protected rights.

Thus it is without merit to say that authorizing qui tam suits against states would alter the balance of federalism. This is the case because when states choose to defraud the federal government, they rob the federal treasury, obstruct the constitutionally enacted directives of Congress, and place their interests above those of the federal government. By doing so, the states themselves assume a position of supremacy, say that they ultimately reign, and offend that original charter they signed. To say then that states must be shielded from liability in order to protect the doctrine of federalism lacks all merit. In reality, providing the states immunity from these suits would itself offend federalism since it would foreclose relief to the federal government when its rights, the rights that all of the states agreed to respect, have been violated.

The Court’s second “buttress” is its recognition of the judicial canon of avoidance, that statutes must be construed so as to “avoid difficult constitutional questions.”[26] Notwithstanding this assertion, the Court makes a quick aside that it “doubt[s]” state liability under the Act would comport with the Eleventh Amendment.[27] While the Court did not overtly center its analysis on this issue, this statement provides incredibly illustrative in providing an explanation for the Court’s strained statutory interpretation of the Act.

Taking this statement along with the Court’s earlier “presumption” against abrogating state sovereign immunity, it becomes apparent that the Court truly agreed with Vermont’s second argument. The Court’s statutory interpretation served as nothing more than a guise through which the Court could reach the conclusion it believed the Eleventh Amendment dictated. It reveals a Court wary of expressly resolving a constitutional question, of declaring allegiance with an interpretation of the Eleventh Amendment that had been frequently admonished.[28] But, regardless of the Court’s motivations in applying the Eleventh Amendment, it is clear, in this instance, that such an application is improper.

It is a truism that the Eleventh Amendment does not bar suits prosecuted by the federal government against states.[29] This idea is based on the premise that, as stated earlier, when the states joined the Union, they all recognized the superiority of the federal government. They voluntarily relinquished their claims to sovereign immunity against suits prosecuted by the federal government because they recognized, for the Union to function properly, the federal government must have a mechanism – here, a lawsuit – to enforce the supremacy of its prerogatives.

This is important in the case of the False Claims Act because it is also generally accepted today that qui tam relators – private citizens who sue under the Act on behalf of the federal government – are themselves agents acting on behalf of federal government and its interests.[30] Since lawsuits under the Act can only be prosecuted by these qui tam relators and by the government itself, nowhere under this scheme is a truly private individual suing a state. In all cases, the federal government is the prosecuting party. As such, the states’ sovereign immunity is inapplicable; the states must be held liable under the Act. The Eleventh Amendment, much to the Court’s consternation, provides no bulwark against the states’ inclusion in the Act’s scope of liability.

It is clear, then, that Vermont’s two claims for immunity from liability under the Act do not withstand serious scrutiny. The Court attempted to protect the states from liability by way of a labored attempt at statutory interpretation, an attempt the Court possibly was aware was incapable of success. But the Court pursued this line of analysis anyway, since it felt the Eleventh Amendment dictated that the states be shielded from liability, even though the Court was unwilling to publicly embrace that controversial constitutional argument. Though the Court was comfortable with such an application of the Eleventh Amendment, it is clear that its application was most certainly improper. As a result, the Court or Congress should recognize the error made in Vermont and remove that blotch from the pages of the Supreme Court Reports by authorizing state liability to qui tam suits authorized by the False Claims Act.

Adam Swingle is a first-year in the college majoring in History.

Confrontation Clause Jurisprudence

The Evolution of the Supreme Court’s Confrontation Clause Jurisprudence
By Jeremy Sawyer

The Sixth Amendment enumerates a number of rights granted to criminal defendants. One of its clauses that has been the subject of much recent judicial scrutiny is the Confrontation Clause, which states that “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him”¹. The right to confront one’s accusers far predates the Bill of Rights, and its origins can be traced to Roman times ², as well as to the Bible, Shakespeare and British common law³. The fundamental right given by this clause is the right to cross-examine a witness. However, controversies have arisen regarding the definition of a “witness” and what constitutes testimony. The High Court and legal scholars have examined and debated the extent of a defendant’s right to face-to-face confrontation and how much weight that right should be given when it comes into conflict with other interests. The increased level of scrutiny and recent pro-defendant rulings, while falling within the Originalist framework of the Roberts Court, have had a negative impact on crime victims by complicating the trial process for prosecutors; these decisions should be re-examined and their effects can and should be blunted by legislation.

There have arisen many difficulties in attempting to apply the Confrontation Clause to the circumstances of criminal trials, especially in relation to the testimony of young children. The Court has been sharply divided on a consequential question: under what circumstances does the testimony of a young child, delivered outside of normal courtroom conditions, violate defendants’ confrontation rights? The Two Supreme Court cases, Coy v. Iowa and Maryland v. Craig largely resolved these issues.  Coy involved whether the defendant’s rights were violated by the use of a screen, allowed under Iowa state law, that allowed the 13-year-old accusers from seeing the defendant (accused of sexual assault) while they were testifying against him⁴. The Court ruled 6-2 in favor of the criminal defendant, holding that the Sixth Amendment requires the physical confrontation of a witness by a defendant. This ruling did not stand for long, however, as Maryland v. Craig became the holding precedent on issues involving the Confrontation Clause and the testimony of children. The Court’s narrow 5-4 ruling in Maryland v. Craig held that the practice of a six-year-old alleged victim of sexual abuse testifying through the use of a one-way closed circuit television did not violate the defendant’s Sixth Amendment rights⁵; the Court explicitly overturned Coy v. Iowa in this case, agreeing with Justice O’Connor’s concurrence in Coy that confrontation rights “are not absolute, but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.”⁶

A  key shift in the Supreme Court’s Confrontation Clause jurisprudence occurred in the 2004 case Crawford v. Washington. Michael Crawford, accused of assault, claimed that the man he stabbed was armed and that he acted in self-defense. At the trial, the prosecution played a statement made by his wife that contradicted Crawford’s story. Sylvia Crawford did not testify at trial because of a state marital privilege law, which prevented one spouse from testifying without the other’s consent . Because he could not cross-examine the recorded statement, Crawford sued, claiming that the state had violated his Sixth Amendment right to cross-examination⁷. The State Supreme Court upheld the conviction, relying  on the Supreme Court precedent of Ohio v. Roberts (1980). In that case, the Court upheld a conviction that relied on testimony given by a witness at a preliminary hearing, where she was cross-examined, although the witness failed to appear at the trial. Justice Blackmun wrote that the testimony was admissible because it possessed sufficient “indicia of reliability”⁸. In a unanimous decision in Crawford, the Roberts Court struck down Michael Crawford’s conviction. In his opinion, Scalia wrote that history, particularly British treason cases that led to the inclusion of the Sixth Amendment in the Bill of Rights, suggests the Sixth Amendment is chiefly concerned with testimonial hearsay, “and interrogations by law enforcement officers fall squarely within that class”⁹. In addition, the Court held that “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination”¹⁰. Scalia dismissed the reliability standard, writing, “Reliability is an amorphous, if not entirely subjective, concept”¹¹, and the Court overturned Roberts. A new standard was established: “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation”¹² Unlike reliability of testimony, physical confrontation is straightforward, which means the new standard is significantly easier than the old one to apply. It also has the advantage of adhering more closely to the original intent of the clause.

A fundamental Confrontation Clause issue with which the Supreme Court was presented involved the definition of a witness. The current holding of the Court is that a witness is one who presents testimony.¹³ However, this definition is not without controversy among judges, lawyers, and academics. Professor Richard Friedman  has argued that testimony should be interpreted narrowly, and that the Court should establish a bright-line test and not a balancing one when applying it¹⁴. Friedman explains that, in his view, “The Confrontation Clause is not a constitutionalization of the law of hearsay, with all its oddities”¹⁵. The view taken by Friedman and his supporters  focuses on the intent of a potential witness in determining whether that person is in fact a witness. If someone makes a statement with the intent of providing evidence that will be later used in a criminal trial, then Friedman categorizes that individual as a witness.  Professor Akhil Reed Amar believes that the definition of a witness should be narrowed to someone who testifies “either by taking the stand in person or via government-prepared affidavits, depositions, videotapes, and the like”¹⁶.  He notes that defining a “witness” as anyone who observed an alleged criminal act places an unreasonable burden on the government[1] , since this interpretation would compel the government to gather every individual who witnessed a crime and force them to testify at the criminal trial, regardless of how many people witnessed the alleged criminal act. Further, Amar argues that since the entirety of the Sixth Amendment deals with courtroom procedure, it is logical to infer that the Confrontation Clause refers to a “witness” in the context of a court of law. Amar’s arguments are compelling and deserve careful consideration by the Court, especially because adopting the sort of standard that he is advocating would significantly aid society by making it easier for prosecutors to jail guilty criminals.

A difficult question for the Court to resolve involves the classification of lab technicians as witnesses. A narrow 5-4 majority in the 2009 case Melendez-Diaz v. Massachusetts held that under Crawford, a lab technician’s report counts as testimony and is subject to the demands of the Confrontation Clause. The dissenters, led by Justice Kennedy, argued that scientific evidence has long been admitted without the testimony of its producer and should continue to be regarded as such¹⁷. The Court returned to the issue in the 2011 case of Bullcoming v. New Mexico, indicating that it had not been adequately resolved initially. The case had been under review in the New Mexico State Supreme Court at the time of the Melendez-Diaz ruling. After the Supreme Court made its decision in that case, the New Mexico Supreme Court upheld the conviction of Bullcoming, who had been convicted with the help of a blood alcohol test produced by the state without the testimony of the analyst who prepared the results of the test¹⁸. The state Supreme Court ruled that the report was testimonial but that it was still admissible evidence without the testimony of the analyst. In an opinion delivered by Justice Ginsburg, the Court overturned the New Mexico Supreme Court’s decision, again in a 5-4 ruling. Ginsburg clarified that, “The accused’s right is to be confronted with the analyst who made the certification”¹⁹.

The line of post-Crawford Roberts Court Confrontation Clause cases presents an interesting conundrum for observers of the high court. In an age of increasing ideological conflict among judges, a division has arisen among the justices that appears to transcend the traditional points of conflict in judicial philosophy. As Professor Friedman has noted, “this is not a left-right split. This is principle versus pragmatism”²⁰. The majority in Melendez-Diaz was composed of hardline originalist conservatives (Justices Scalia and Thomas) as well as liberals sensitive to the rights of the accused (Justices Stevens, Souter, and Ginsburg). The dissenters posited a more practical approach that sought to limit the infringement of the judiciary on the ability of prosecutors to lock up guilty criminals. It included both conservatives (Chief Justice Roberts and Justice Alito) and a solid liberal (Justice Breyer). The leader of the victim’s rights bloc, however, is Justice Kennedy, the  most pragmatic and least ideological Justice of the modern era. He took the lead in writing the dissents in Melendez-Diaz and Bullcoming. Bullcoming essentially tested whether the Melendez-Diaz majority remained intact following changes to the Court’s membership²¹, and that majority proved resilient. New Justices Sotomayor and Kagan, liberals concerned with defendants’ rights like the justices they replaced, voted with the majority. The pro-defendant majority has been determined enough to overturn decisions even though the general tendency of the Court is to avoid doing so.

On the other hand, the attempt to expand the reach of the ideological coalition has been successfully resisted by the Victim’s Rights bloc on other fronts. The key example is Michigan v. Bryant (2011), in which only Justices Scalia and Ginsburg voted for the criminal defendant. In Michigan, the Court ruled 6-2 that if the purpose of a dying declaration is to assist law enforcement and not to provide evidence for later use at a trial, a dying declaration is non-testimonial and therefore fails to violate the Confrontation Clause rights of defendants. Wording his dissent sharply, Justice Scalia wrote that the dying declaration exception is too broad and that it is impossible for courts to determine the motives of a witness and l aw enforcement officers²². Scalia and Ginsburg filed separate dissents, neither of which was joined by the other Justice, demonstrating the profound differences in the rationales that lead each to the same conclusion in Confrontation Clause cases. Moreover, a sustainable Victim’s Rights alliance has materialized on other issues, such as the Court’s decision to allow victim impact statements in criminal trials, Payne v. Tennessee. The unexpected alliance in Confrontation Clause cases seems to disintegrate when the Constitutional issue at hand involves a clause with a clear literal meaning.

The Court’s pro-defendant rulings on the Confrontation Clause have had a substantial impact on prosecutors and on society, and many observers believe that recent rulings will cause significant changes. Tom Lininger of Oregon Law has led a coalition of critics that have rightly bemoaned the dampening effects of the Court’s new framework on the ability of prosecutors to jail criminals. In particular, he claims accurately that prosecuting batterers has and will become significantly more difficult²³. Lininger points out that prosecutions of batterers must rely on hearsay because a large majority of victims of battery recant at some point²⁴, often because they are emotionally attached to their abusers. As a result, many district attorneys began dismissing more allegations of domestic violence in the wake of Crawford²⁵. He suggests that states take legislative action to allow for opportunities for pre-trial cross-examination, in order to enable prosecutors to put clearly guilty and dangerous criminals behind bars without raising Constitutional issues.  A similar approach may be possible in order to protect society following Melendez-Diaz and Bullcoming. If the testimony of lab technicians is required in order for scientific analysis to be admitted as evidence,  states ought to legislate procedures that mandate that a technician who performs an analysis sign the certification and be available to testify.

Jeremy Sawyer is a first year at the University of Chicago.

Notes:

1. See U.S. Const. amend. VI
2. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
3. See Lilly v. Virginia(98-5881) 527 U.S. 116 (1999) 255 Va. 558, 499 S. E. 2d 522 (Breyer, J., concurring)
4. See “COY v. IOWA,” The Oyez Project at IIT Chicago-Kent College of Lawhttp://www.oyez.org/cases/1980-1989/1987/1987_86_6757.
5. See “MARYLAND v. CRAIG,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1980-1989/1989/1989_89_478.
6. See Coy v. Iowa, 487 U.S. 1012 (1988)(O’Connor, J., concurring)
7. See “CRAWFORD v. WASHINGTON,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2000-2009/2003/2003_02_9410.
8. See Ohio v. Roberts, 448 U.S. 56 (1980)
9. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
10. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
11. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
12. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
13. See Crawford v. Washington, 541 US 36 (2004) 124 S. Ct. 1354; 158 L. Ed. 2d 177
14. See Friedman, Richard D., Confrontation: The Search for Basic Principles, 86 GEO. L.J. 1011
15. See Friedman, Richard D., The Conundrum of Children, Confrontation, and Hearsay, 65 Law & Contemp. Probs. 243 (Winter 2002)
16. See Amar, Akhil Reed, “Confrontation Clause First Principles: A Reply to Professor Friedman” (1998). Faculty Scholarship Series. Paper 946
17. See Melendez-Diaz v. Massachusetts, 557 U.S. _ (2009), 69 Mass. App. 1114, 870 N. E. 2d 676 (Kennedy, J., dissenting)
18. See “MELENDEZ-DIAZ v. MASSACHUSETTS,” The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2000-2009/2008/2008_07_591.
19. See Melendez-Diaz v. Massachusetts, 557 U.S. _ (2009), 69 Mass. App. 1114, 870 N. E. 2d 676
20. See Savage, David. “Criminal Defendants Find Unlikely Friend in Justice Scalia.” Los Angeles Times, November 24, 2011. http://www.latimes.com/news/nationworld/nation/la-na-court-scalia-20111125,0,7406826.story.
21. See Denniston, Lyle, Opinion analysis: New curb on crime lab reports, SCOTUSblog (Jun. 23, 2011, 2:35 PM), http://www.scotusblog.com/2011/06/opinion-analysis-new-curb-on-crime-lab-reports/.
22. See Miller, Erin, Opinion recap: Court expands a hearsay exception, SCOTUSblog (Mar. 6, 2011, 5:52 PM),http://www.scotusblog.com/2011/03/opinion-recap-court-expands-a-hearsay-exception/.
23. See  Lininger, Tom, Prosecuting Batterers After Crawford. 91 Va. L. Rev. 747 (2005)
24. See People v. Brown, 94 P.3d 574, 576 (Cal. 2004)
25. See  Lininger, Tom, Prosecuting Batterers After Crawford. 91 Va. L. Rev. 747 (2005)

Unlawful Extracurriculars: A Case Study of Sexual Assault Laws

Unlawful Extracurriculars: A Case Study of Sexual Assault Laws in Wisconsin’s School System
By Randy Clopton

When a school district finds itself in the midst of a sex scandal, the administration must find a way to remedy the situation. Usually, this will consist of firing the offender if he or she works for the district, notifying the authorities, and other such actions to protect the district’s reputation.  However, in a recent sex scandal at Homestead High School in Mequon, Wisconsin, there was no one to fire. This past November 3rd, four teenagers, two of whom were below the age of consent, participated in illicit sexual activity on Homestead’s campus. More specifically, a 14-year-old female student gave oral sex to three boys, Deangelo Dantzler, Brent Anderson, and an unnamed 15-year-old boy. Alcohol, which Anderson provided to the girl, was involved in the incident as well. When the district received news of these acts a week later, they “launched a joint investigation into the incident with the school’s police liaison officer,” according to a letter issued by the superintendent, Dr. Demond Means. The investigation determined that the acts were consensual and the boys were booked and released [1]. Later, however, the parties representing the girl insisted that Dantzler and Anderson had forced themselves on her, and are now seeking a monetary settlement with the district, though for what is unclear [2]. This raises the concern that the school district may be at fault, but if so, no clear example of a wrongdoing is immediately evident.  Uncovering the true story is crucial to examining the fates of Dantzler and Anderson.

According to the police reports, interviews with the students were conducted in the school by the police liaison officer as well as the assistant principals; two males and one female were present for the interview, potentially overexerting a masculine influence in the interviews. The police report lists three versions of the girl’s story. Initially, she only told the principals and the liaison officer about the oral sex with the 15 year-old boy, adding the contact with Dantzler and Anderson during a re-interview with her father present. Later, she claimed that the acts with Dantzler and Anderson were not consensual [3]. There are a number of potential reasons for the potential victim to recant multiple times: she could have changed her story herself, or her father or the district could have influenced the change.

What is not immediately evident in the police report may be explained by examining the tapes of the interviews; however, as these records are sealed, each situation must be examined separately.  If her attorney is correct in stating, “Based on the interview I performed and based on the information I’ve read, she was raped,” [4] then some force may have been preventing her from conveying an honest account of the events, and that force may have been the district administration. While the investigation initially deemed the sexual acts consensual, it is possible that she was pressured into making this claim.  The fact that the victim’s father declined a re-interview until the police offered a female police officer to conduct the interview [5], suggesting that the male presence in the first interviews could have influenced her story. If this is all true, the district would have been tampering with the evidence in the case [6] as well as committing official misconduct [7]. While corrupting an investigation is less reprehensible under the law than statutory rape, it nevertheless reflects poorly on the district administration and recalls the history of poorly handled scandals in which the district has been involved, including allowing previous student offenders to continue attending school after being accused.

Alternatively, the victim’s father could have altered her initial story.  According to the police report, the girl’s father “became very upset and started to yell ‘Forget about this whole thing, this never happened’ and threw his arms up in the air” when he learned of the consequences related to the incident [8]. After taking the time to talk with her father after these events, she may have accused Dantzler and Anderson of rape at his behest to exact some form of revenge on the boys. On the other hand, her father may not be able to believe that his daughter could have consented to sexual activities and claimed rape, removing the fault from his daughter altogether. Regardless of his motive, the father would be guilty of tampering with evidence if he coerced the alleged victim into changing her story. It is worth noting that if the girl simply changed her story, many of these issues would disappear. As previously stated, her father was extremely frustrated after discovering his daughter’s actions and their subsequent consequences. Convincing her father she was raped would relieve her of blame. However, without the tapes of the interviews, it is impossible to know which story is true.

The shifting account of events remains relevant in this case because it will affect their criminal conviction.  According to the police reports, all four actors were charged with second degree sexual assault of a minor, and all but Anderson admitted to the crime. If Dantzler and Anderson forced themselves on the victim, then this would qualify as first degree sexual assault of a minor.  The language in statute chapter 948 states that “Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs” [9], If they did not this statute, it would qualify as second degree sexual assault of a minor, a crime which the offender has “sexual contact or sexual intercourse with a person who has not attained the age of 16” [10]. All three boys have committed second degree sexual assault of a minor and face the ramifications presented for a Class C felony, which amounts to up to 40 years in prison, a $100,000 fine, or both [11]. In addition, the girl in this case has the potential to be convicted of second degree sexual assault, as she has maintained that the contact between her and the younger boy was consensual. The statute does not explicitly state that the offender must be over the age of eighteen, and even consensual acts between two underage teens could be interpreted as sexual assault, but convictions in situations like this vary depending on the circumstance [12]. Though the contact with the younger boy was separate from the contact with Dantzler and Anderson, whether or not the alleged victim was raped could play a part in how she will be treated in trial. As a victim, her charges would bear no fruit, but if all the sex acts were consensual, she could be painted as a poor decision-maker worthy of jail time for her actions.

Additionally, the alleged victim and her family are seeking a civil case against the district. In this case, the district could be guilty of failing to fulfill its ministerial duty. In Manning vs. Necedah Area School District (2007), another sexual abuse case, the Wisconsin Appellate Court ruled that the district was immune from prosecution during a child abuse scandal under Wisconsin Statute Chapter 893 due to the fact that the plaintiffs do not allege negligence of a certain ministerial duty in the case against the district. However, this case does cite “a well-established exception to the rule of immunity [which] holds that an officer is liable for damages resulting from the officer’s performance of a ministerial duty,” [13] which in this case, meant that the failure to perform a ministerial duty to report abuse would have removed the right to immunity. In the Homestead case, the district apparently fulfilled its ministerial duty, reporting the abuse and conducting an investigation into the events. However the district may have some fault in this case separate from reporting the incident. Though much at this point is inconclusive, if the girl’s testimony was unduly influenced by external forces, then the district may not have fulfilled its duties. What remains unaddressed is how exactly the district failed in its duties if it conducted an honest investigation. Much like the case against Necadah Area School District, unless the prosecution can provide evidence of misconduct and address it directly, the district has no fault in the action. So far the prosecution has not even stated for what it is seeking damages. A monetary settlement would seem justified if the district were at fault, but otherwise, the district can sit safely behind the legal wall of Statute 893, having done nothing wrong in the eyes of the law.

Randy is a second year at the University of Chicago.

IL-1 Congressional Candidate Ray Lodato on Protecting Voting Rights

IL-1 Congressional Candidate Ray Lodato on Protecting Voting Rights

The seventeen amendments that follow the Bill of Rights cover a seemingly wide range of issues, but one theme is prevalent in several of them: the expansion of voting rights.  A total of seven amendments deal with widening the franchise to give more Americans a direct and immediate stake in the choice of their government, a practice that, despite well-documented problems in the recent past, is still the envy of much of the world.

Not since the institution of Jim Crow laws in the South has there been any concerted attempt to limit the franchise or restrict its growth to new populations.  With the passage of the Voting Rights Act in 1965, and the 26^th Amendment giving all citizens 18-to-20 year olds the right to vote in 1971, many have been lulled into a sense of complacency that the right to vote is now available. With limited residency restrictions, all American citizens may vote in elections, regardless of race, ethnicity, gender, age or residency.

But elections themselves have consequences. Although they campaigned on reviving the stagnant economies of their states and rejected so-called “Obamacare” the Republican Governors and state legislators elected in 2010 spent much of their first year in office passing new laws putting limits on voting rights.  The most common restriction has been a requirement that voters show a state-issued photo i.d. before voting at the polls—even though most states require pre-registration of voters just to show up at the polling place.

While advocates have called the requirement a common sense restriction that will be easy for voters to comply with, a study by the Brennan Center for Justice found that 12% of Americans do not have a government-issued ID, with the figure being double for African-Americans and perhaps even higher among African-Americans in the South.  All told, estimates are that 5,000,000 voters could be excluded from voting this year who would have been eligible under rules in place in 2008.  Fans of coincidence will note that it just so happens that minorities and the young are among the groups most likely to vote for Democrats.

The laws have had an almost immediate impact in terms of restricting voting.  In one instance, Dorothy Cooper, a 96-year old African-American woman from Nashville, was denied a state issued ID because she could not produce her marriage certificate (her birth certificate, of course, was issued in her maiden name). Mrs. Cooper had been able to vote throughout the worst restrictions passed under Jim Crow, yet the new restrictions were sufficiently broad to exclude her from voting in 2011.

Those who favor a universal franchise for U.S. citizens must acknowledge nothing stands in the way of the current restrictions being found constitutional. The current Supreme Court majority appears intent on expanding upon new and old notions of states’ rights.  A solution would be the introduction and passage of a Voting Rights Amendment to the Constitution, which would supplant and expand existing legislation. Such an amendment would guarantee the right to vote for all American citizens regardless of race, age, gender, income level, or voting locale.

As Congressman, I will work with voting rights experts to develop language for such an amendment, and introduce it during the 113^th Congress. Voting rights are so fundamental as to necessitate the inclusion of a guarantee of their exercise in the Constitution.  Our best efforts as a nation are made when we increase franchise beyond those with means and influence.

Ray Lodato is a Democratic candidate for Congress in the Illinois 1st District. A founder of a community organization that focuses on job training and green development in low-income neighborhoods, he has also served as Chair of the Local School Council and as a staffer for the campaigns of numerous progressive politicians, including Barack Obama and Toni Preckwinkle. He currently works at a research firm and as a lecturer in Public Policy at the University of Chicago. His campaign can be found at http://www.lodato4congress.com/ and on Facebook. Students at UChicago and other area schools interested in his campaign can get involved at https://www.facebook.com/pages/Students-for-Ray-Lodato/304782346224378 .