Volume: 55

Formally, judicial analysis of a challenged statute’s validity should be consistent, regardless of the challenge’s pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute’s validity should turn on its content and effect—not on whether it was challenged before or after enforcement.

This Article challenges that assumption, arguing that pre-enforcement challengers enjoy significant strategic advantages in court. To be sure, offensive, pre-enforcement challengers must establish that their suit presents a genuine case or controversy and convince decision-makers that they face a real harm. But on the other hand, attorneys planning pre-enforcement challenges often enjoy the opportunity to select their clients, control their suit’s timing and forum, and shop for judges. And when challenging laws that protect beneficiaries from harms such as discrimination, pre-enforcement challengers likely benefit from the absence of identified victims in speculative lawsuits.

After identifying these potential advantages, this Article analyzes a set of factually similar challenges brought by wedding vendors against public accommodations laws that forbid discrimination against LGBTQ+ customers based on their sexual orientation. It explains that pre-enforcement challenges—including speculative cases brought by plaintiff businesses that had never received requests from LGBTQ+ customers—were consistently more successful than post-enforcement challenges arising from proceedings against defendant businesses that denied services to LGBTQ+ customers. Finally, this Article explores the implications of pre-enforcement advantages for standing doctrine, litigation strategy, and the proper role of courts in a democratic society.

For over a century, courts have struggled to determine whether, and to what extent, the Constitution applies outside our borders. To date, they have not come up with a single test to make this determination, instead taking an ad hoc, clause-by-clause approach that has left nothing but questions for lower courts to grapple with. Scholars have suggested various tests, based on differing theories of extraterritorial application, but so far, none has caught on. After examining the conventional discussion of the extraterritorial application of the Constitution, additional cases that are often left out of this history, as well as contributions from the lower courts, this Article provides a new test for courts to use to determine when to apply the Constitution to a claim. This proposed test draws on various prior court cases to distill the inquiry down to a straightforward application of a three-part test.

First, a court should determine whether the U.S. government has the power to act at all. If the court determines that the Constitution forbids the action in question, then the court should enforce that prohibition and the test is over, for the government may not exercise power it lacks anywhere in the world. Second, if the government does have the power, the court should next ascertain where the alleged constitutional violation has taken or will take place. Courts far too often skip this step, just assuming that if the plaintiff is outside the United States, the violation must have occurred there. But as this Article discusses, this is not always so. While the effects of unconstitutional action may be felt outside the United States, the action itself often occurs domestically. In such a case, the court would apply the Constitution normally. Only if the action alleged to have violated the Constitution occurred abroad should the court turn to the final inquiry—does the Constitution apply and if so, to what extent?

This final step is itself composed of three parts. First, because the Constitution will never provide more rights outside the territory of the United States than within, the court should determine if there are constitutional or prudential doctrines, such as standing, ripeness, or mootness, that interpose and prevent a decision. If the court can reach the merits, it then must ask itself, consistent with Supreme Court precedent, if applying the constitutional provision at issue abroad would be “impracticable or anomalous.” Is the court dealing with a right that can be applied abroad? Are there practical obstacles that would require tailoring the right, such that its application abroad may not precisely mirror its application at home? As a backstop, I suggest that such tailoring can never violate a ratified treaty or nonderogable jus cogens norm. Finally, does there exist, or can the court create, an equally effective alternative to safeguard the interests protected by the constitutional provision at issue?

The Article concludes by running several fact patterns through this test, to demonstrate how it would work in the real world, where judges are called upon to make these difficult decisions.

This Note will analyze how the Court’s refusal to acknowledge the realities of human emotion has problematized their own death penalty jurisprudence. This refusal led the Court, in McCleskey v. Kemp, to act dramatically inconsistent with their own legal logic when faced with the worst of human impulses, racial discrimination. This Note will focus on the slippery slope argument employed in McCleskey that articulated how a decision on the death penalty’s discretion would endanger discretion throughout the criminal legal system. This conflation of capital and non-capital discretion reversed course on the Court’s grounding logic that the death penalty is unique. It is that flaw in McCleskey’s logic that this Note will explore and will outline how rectifying this inconsistency forces the Court to go down a new path rather than continuing to stay frozen in McCleskey’s amber where the death penalty is constitutional and discriminatory. 

Despite increasing awareness that economic actors can play a significant role in international crimes committed during armed conflicts, little international experience on how to achieve their criminal accountability in transitional justice processes exists. The innovative approach taken by Colombia in the Final Peace Agreement between the Colombian government and the FARC-EP in 2016 provides a fascinating case for analysis. In sharp contrast with the Colombian Justice and Peace process, which started in 2005, the Final Peace Agreement included economic actors in the remit of the Special Jurisdiction for Peace, a criminal tribunal specifically created to investigate crimes committed during the Colombian internal armed conflict. This Article provides a detailed examination of why and how these actors were included in the remit of the Special Jurisdiction for Peace, the contentious nature of this endeavour, and the lessons that can be learned from this for future transitional justice processes with regard to achieving criminal accountability of economic actors.

The United States Supreme Court recently decided a case involving a man nearly tortured to death at the hands of the United States government. For years, the executive branch made pronouncements that it must keep information from litigants due to state secrets. The Court has always scrutinized these pronouncements. Until now. In the Zubaydah case, the Court dismissed a torture survivor’s quest for justice. But it did not stop there. The opinion followed years of cases dismissed based on the state secrets privilege and effectively announced that the courts will not review claims made by the executive in certain situations. Despite the compelling needs of the litigant, the Court instead walked in lockstep with the executive branch and dismissed the claim entirely. This action is akin to the invocation of the Crown Privilege as it existed in England from the 15th Century until 1968. This decision will undoubtedly cause executive branch overreach. Without the judicial check on the unilateral actions of the Central Intelligence Agency and other secretive departments within our government, abuse will continue. Americans require a transparent view of their government for effective democracy. The State Secrets Protection Act previously introduced in Congress is a critical fix to remedy the Court’s acquiescence to executive branch decision making.

Nationwide, the number of individuals that lack access to housing is increasing. At the same time, local governments have escalated efforts to criminalize the unsheltered. Given this context, access to temporary shelters has become a critical component of addressing issues surrounding houselessness. However, not all groups have equal access to temporary shelters. Disabled people face significant barriers to accessing shelter systems, frequently forcing them to sleep outdoors. This Note seeks to highlight the discrimination faced by people with disabilities in temporary shelters, explain why our current legal regime has failed to protect against the types of discriminatory behaviors shelters frequently engage in, and explore potential solutions to this problem. Specifically, this Note proposes utilizing the Affirmatively Furthering Fair Housing mandate to stop discrimination by shelters. Establishing access to temporary shelters is neither a solution to houselessness nor a solution to housing discrimination against disabled people in general. Still, ensuring that all individuals can reside in shelters if they so choose is a critical intermediary step, particularly in light of the increasingly inhumane consequences that individuals may face by remaining unsheltered, including criminalization, health risks, and in some places, forcible commitment.

The United States Congress enacted Section 601(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 to protect asylum seekers fleeing China’s One-Child Policy (OCP). Such Chinese asylum seekers have primarily utilized the statute to secure asylum grants on the grounds of being subjected to a forced sterilization or forced abortion. However, while the world is familiar with China’s now defunct OCP, researchers have shed light on a lesser-known practice—the global prevalence of involuntary sterilization by medical providers, both forced and coerced, targeting marginalized women. The published case law’s focus on involuntary sterilization within the context of the OCP raises questions of whether the statute provides equal protection to asylum seekers who were subjected to sterilization outside of China and without a similar government-stipulated policy. This Note explores three groups of marginalized women who are often targeted for involuntary sterilization, as well as the circumstances under which they are forcibly and coercively sterilized. It analyzes how the Board of Immigration Appeals (BIA) and some circuit courts have defined what constitutes a “forced” sterilization or abortion within the context of the OCP. It also presents an analytical framework for why Section 601(a) extends to asylum seekers outside of China. Based on this framework, this Note further argues that attorneys and physicians should widely screen their female asylum clients for involuntary sterilization as a means of potentially securing an additional path, with a lower evidentiary burden, towards an asylum grant.

Legal challenges against the constitutionality of state anti-Boycott, Divestment, Sanctions (BDS) laws are slowly making their way through United States circuit courts, and, so far, these challenges have rested largely on First Amendment grounds. This Note explores the viability of an alternative approach: challenging the constitutionality of state anti-BDS laws under the doctrine of foreign affairs preemption. Ultimately, this Note concludes that state anti-BDS laws pose a sufficient intrusion into foreign affairs so as to be rendered unconstitutional by the doctrine of foreign affairs preemption. Nonetheless, before pursuing this approach in court, litigators and advocates should consider how the precedent might implicate the goals of human rights activists in the long run, particularly regarding the abilities of state governments themselves to mobilize against foreign countries committing human rights violations.

In 2023, the Biden Administration announced its plan to enhance the use of summary removals, which are administered and completed by low-level immigration officers without further process unless there is an articulated fear of return by the noncitizen. This fear articulation triggers a fear interview with an asylum officer who determines whether the noncitizen has a credible or reasonable fear of return—a process that the Biden Administration further shortened while effectively imposing a higher fear standard through a recent finalized rule. A negative fear determination results in immediate removal unless the noncitizen requests review by an immigration judge. In 2019, only 15,476 migrants subject to the fear screening process requested review of their negative fear determinations. In most of these reviews, 74.3 percent, the immigration judge affirmed the asylum officer’s negative fear determination, resulting in the humanitarian relief seeker’s deportation as the decision in these reviews is not subject to appeal or further review. This Article seeks to highlight how the lack of clear process in an immigration judge’s review of an asylum officer’s negative fear determination under 8 C.F.R. § 208.30(g) and 8 C.F.R. § 1208.31(g) leads to an unchecked judicial discretion that can serve as a barrier to justice and humanitarian relief for those fleeing severe harms in their countries of origin or removal. This Article presents the first sustained examination and critique of the immigration judge review process that grounds decisions to expeditiously return migrants. After a review of the literature on this corner of our immigration system, I present some rare insights into this immigration judge review process based on descriptive data collected from an accompanying national survey of immigration advocates with direct experience in these proceedings. I then argue that that the fear screening process in its current form is in violation of the United States’ international and domestic obligations and should be dismantled. The lack of clearly defined procedures and meaningful standards, and the vast discretion afforded to immigration judges in these proceedings result in egregious failures of both process and substance. In the current process, expediency is championed over accuracy—belying the pretense of humanitarianism and charity that cloaks the entirety of our system of humanitarian protection. Lastly, I present some suggestions for reform to minimize the risk of erroneous fear determinations and ensure a fairer process for all migrants—not just those who win the adjudication lottery by being assigned to an immigration judge who approaches review of asylum an officer’s negative fear determination as the migrant’s legitimate opportunity to be heard and questioned.

Many scholars have studied the racialization of Asian Americans and found that perpetual foreignness stands at the core of their ascriptive identity. This identity was formed in the 19th century and is also closely related to the dominant society’s racial understanding of ‘the Chinese’—which refers, for the purposes of this Article, to people of actual or perceived Chinese descent in the United States. This Article investigates this racialization process, with a contemporary lens: What does perpetual foreignness mean to the Chinese in the 21st century? This Article argues that, for the Chinese, their foreignness in today’s United States means more than just otherness, inferiority, and inassimilability; instead, the Chinese foreignness has acquired an additional specific meaning: the unquestionable linkage to China, the United States’ most significant geopolitical challenger. This Article uses the U.S. Department of Justice’s failed China Initiative to investigate this new ascriptive identity of the Chinese and argues that the geopolitical tension between China and the United States plays a vital role in this change. As the United States’ most significant challenger in geopolitics, China has taken a central role in the racial understanding of the Chinese in the 21st century. To many non-Chinese Americans, the Chinese are more than just foreigners who are culturally associated with a far away, inferior oriental country as they were perceived in the 19th and 20th centuries. Today, they are a suspect race who possess an unbreakable linkage to China, the dangerous perpetrator in geopolitics. In short, today, the Chinese are not just foreign; they are foreign perpetrators. This new ascriptive identity of the Chinese resonates with the differential racialization tenet of the Critical Race Theory that the dominant society racializes different minority groups at different times in response to shifting needs and interests. How the United States views China has a direct impact on how Americans views the Chinese. Since China will likely remain the United States’ geopolitical challenger, this Article predicts that the foreign perpetrator identity will be attached to the Chinese community in the foreseeable future.