Volume 74, Winter 2022, Issue 2



Distinguishing Between Inferior and Non-Inferior Officers Under the Appointments Clause-A Question of “Significance”

Damien M. Schiff & Oliver J. Dunford

An important part of the constitutional design of the federal government is the separation of powers. A key aspect of that design is the Appointments Clause, which governs how officers of the United States are installed in their positions. The clause presumptively requires that all such officers must be appointed by the President with the advice and consent of the Senate. But it authorizes Congress to bypass that procedure and vest the appointment of “inferior Officers” exclusively in the President, the Courts of Law, or the Heads of Department.

How to distinguish between inferior and non-inferior officers, and thus how to determine who among federal officialdom must be appointed by the President with the Senate’s approval, is a task that has bedeviled the Supreme Court for decades. In its 1997 decision, Edmond v. United States, the Court held that the distinction turns on the degree to which an officer is “directed and supervised” by other, non-inferior officers. The Court articulated three factors to guide that assessment, including whether the officer is protected from removal and whether the officer has the power unilaterally to make a final decision. In its ruling this past Term in United States v. Arthrex, Inc., the high court signaled a departure from Edmond and embarked on a different analytical path. Effectively eschewing the Edmond direction-and-supervision standard along with its multi-factor analysis, the Court appears to have adopted a straightforward “significance” standard, such that an officer is non-inferior if the officer wields significant power. The Court’s shift in Arthrex is, however, more implicit than explicit, given the precedential constraints of Edmond and other cases that have employed “significance” as the standard to distinguish officers from non-officers, rather than inferior from non-inferior officers. Consequently, the Court’s analysis in Arthrex is set forth using the terms of Edmond. But Arthrex’s essentially exclusive reliance on the Edmond “final decision” factor—coupled with its emphasis on the importance of maintaining accountability for official action that, like the patent dispute at issue in Arthrex, can have tremendous impact on the property rights and other liberties of private parties—suggests that the Court’s allegiance to Edmond is superficial and strategic.

If, then, the Court is moving towards a plain significance standard—and our review of the Court’s ruling concludes that it is—then this shift should be applauded. It makes the Court’s Appointments Clause case law better cohere with that clause’s original meaning, which does not use significance to distinguish officers from non-officers, but likely does so to distinguish inferior from non-inferior officers. It also better furthers the policy of democratic accountability, a policy that the Court’s recent cases concerning the Appointments Clause—including Arthrex—as well as those concerning the coordinate issue of the President’s power to remove officers, have stressed, and which animates the Constitution’s rules and checks governing the selection and control of the Executive officer corps.

Justice Frankfurter’s Contextual Marketplace

Jared Schroeder

Justice Frankfurter is not known for foundational First Amendment opinions, like his mentors, Justices Holmes and Brandeis. He also is not known for helping to lay the groundwork for the modern First Amendment, like his rivals and contemporaries on the Court, Justices Black and Douglas. His lengthy, complex, and nuanced free-expression opinions, however, provide an alternative theoretical framework for how the marketplace of ideas can be conceptualized in the networked era. Drawing from his opinions, this article examines the historical development of marketplace theory, contending the theory has never had a monolithic meaning, and analyzes Justice Frankfurter’s First Amendment opinions, ultimately constructing the contextual marketplace. The contextual approach provides a more inclusive, malleable, and protective foundation for the marketplace in the twenty-first century, finding substantial support from Justices Holmes’s and Brandeis’s writings, modern Supreme Court decisions, and legal scholarship.

Citizenship, Race, and Statehood

Kristina M. Campbell

This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due to their majority non-white, Spanish-speaking populations. This section also reflects on the de facto requirement of whiteness as a prerequisite for statehood as exemplified by the larger struggle for territorial statehood in the West, and the detrimental impact that the culture of white supremacy has had on the ability of territories to achieve full membership in our society. Part IV will examine the factors surrounding the admission of our fiftieth State, Hawai’i, and the impact that its large Native Hawaiian and other Asian/Pacific Islander population had on its quest for statehood. This part will also examine the strategic reasons that the United States pursued statehood for Hawai’i, due to its location in the South Pacific and the need to defend the West Coast of the United States after World War II and the Korean War. Part V discusses the unique status of the District of Columbia which, while not a territory, is a modern corollary to the issues of colonialism, race, and statehood that the territories have historically faced when seeking admission to the Union. Finally, the Article concludes with a discussion about the inability of United States citizens who are residents of the United States territories to elect voting members to Congress and reflects on how this disenfranchisement of majority-minority territories has prevented the United States from becoming a truly representative democracy.

The First Step Act-Constitutionalizing Prison Release Policies

Harold J. Krent & Robert Rucker

In the First Step Act of 2018, Congress directed the Department of Justice (“DOJ” or “the Department”) to develop a tool, subsequently called Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”), to make such an algorithmic assessment of recidivism risk based on static factors such as the nature of the underlying offense, prior substance abuse, and education level. Congress determined that inmates, dependent on such recidivism assessment, be permitted to shorten their stay in prison. For instance, by pursuing vocational courses or by electing to take classes in preventing substance abuse, offenders can now earn credits to qualify for early release or to garner other privileges. Moreover, the Act facilitates release for (almost) all offenders by awarding enhanced good time credits. The First Step Act thus links the length of confinement in part to predictions of future crime as in the past, but also attempts to parlay a prison stay into an opportunity to incentivize offenders to make adjustments in their lives to minimize the risk of future dangerousness. A generation after Congress in essence abandoned rehabilitation as a principal goal, rehabilitation once again has become one of the driving forces of our federal criminal justice system. Many have praised the Act for shortening prison stays and reintroducing rehabilitation as a goal of our penal system.

But, commentators to date have not considered that, in revamping criminal justice policies, the First Step Act may have constitutionalized such early release measures. Unlike in most state systems that use algorithms as guidelines, the Act dictates that PATTERN alone determines eligibility for early release—no discretion on the part of prison authorities is involved. Congress’s decision to base eligibility on an algorithm accordingly raises the critical question of whether Due Process requires that individuals be permitted to show that facts not captured by the algorithm demand an adjusted outcome. In addition, by creating a system to encourage offenders to pursue certain opportunities in prison, Congress likely has created an entitlement based on liberty interests protected under the Due Process Clause. The First Step Act tells prisoners that, if they successfully attain certain educational goals, receive psychological counseling, etc., they will be released early. As a consequence, prison authorities will need to ensure that prisoners who complete such programs are released early with only narrowly defined exceptions. Finally, Congress, in light of ex post facto principles, must respect the enhanced good time credit calculation in the Act for individuals who have already committed their offenses.

We conclude that such constitutionalization of release policies, though likely unintended, should prove beneficial in striking an enforceable bargain with offenders: if the offenders take steps to limit the chance of their own future recidivism, they can gain early release. Given the First Step Act’s reintroduction of rehabilitative goals in the federal prison system, the application of these constitutional requirements may further the Act’s purpose in seeking to reduce the likelihood of inmate recidivism prior to reintroduction into society.

An Access and Equity Ranking of Public Law Schools

Christopher L. Mathis

Over the past few decades, several comprehensive ranking systems, including the influential U.S. News and World Report’s Best Law Schools rankings, have emerged to provide useful information to prospective law students seeking to enroll in law school. These ranking systems have defined what is measured as “quality” and what outcomes law schools focus on to gain a better position in the ranking. These rankings fail to measure what many law schools claim to be one of their longstanding goals—diversity, access, and equity.

One of the problematic and shocking reasons U.S. News cites for not including diversity measures in the ranking is that law schools themselves have no consensus on diversity. I counter this argument, asserting that while there may not be widespread consensus—for certain people—on diversity, there is substantial academic scholarship and agreement on the tenets of diversity that ranking enthusiasts can use to design an effective diversity measure. I maintain that any ranking that does not include diversity, access, and equity measures often leave communities of color and their interests in the margins. Therefore, this Article seeks to center the needs of Black and Latinx prospective law students through a new ranking system.

Given that public law schools aim to increase racial/ethnic diversity—that is, the number of racial/ethnic minoritized students—because of their institutional missions, the Article provides the first ranking of public law schools on “Access and Equity” measures. It describes ranking law schools based on measurable outcomes related to diversity, access, and equity. This ranking uses twelve access and equity measures that are significant to Black and Latinx law school fit. This “Access and Equity Ranking” is the only ranking to date that will help Black and Latinx students identify which public law schools centers their needs.

Do Seven Members of Congress Have Article III Standing To Sue the Executive Branch?: Why the D.C. Circuit’s Divided Decision in Maloney v. Murphy Was Wrongly Decided in Light of Two Prior District Court Decisions and Historical Separation-of-Powers Jurisprudence

Bradford C. Mank

The D.C. Circuit’s divided decision in Maloney v. Murphy granting standing to minority party members of the House Oversight Committee appears questionable in light of two prior district court decisions in Waxman and Cummings that had denied standing in similar circumstances. Most importantly, Maloney is inconsistent with Supreme Court precedent regarding standing for individual members of Congress. In Raines v. Byrd, the Supreme Court held that individual members of Congress generally do not have standing to enforce institutional congressional interests such as whether a statute is constitutional, but that one or both Houses of Congress must sue as an institution. The Maloney decision inappropriately applied a cognizable personal standing injury theory to the case to incorrectly find standing when the case should have been governed by Raines’ institutional injury rule allowing only a House or Houses of Congress to sue the Executive Branch, and the court should have denied standing. There are fundamental separation-of-powers concerns about federal courts intervening in disputes brought by legislators against the Executive Branch, and, as a result, courts properly take a narrow view of Article III standing in such cases. However, a House of Congress could sue to enforce a subpoena for such information, or an individual Member of Congress could bring a FOIA request. The Maloney majority opinion is cleverly argued, but it lacks the nuance and attention to historical practice in separation-of-powers cases in District Judge Mehta’s Cummings decision, which Maloney unfortunately reversed. This article seeks to expose the weaknesses in the standing theory in the Maloney decision, and, to prevent a flood of suits by small numbers of congressional members that could lead to excessive judicial involvement in political disputes between the Executive Branch and aggrieved individual members of Congress. Additionally, even if Maloney was correctly decided at the time, the Supreme Court’s subsequent TransUnion LLC v. Ramirez decision, 141 S. Ct. 2190 (2021), raises serious doubts by requiring proof of adverse effects for informational injuries that the Maloney plaintiffs might not have been able to prove.


Ned Terrace

The Trump administration’s use of 34 U.S.C. §§ 10151-10158 and resulting litigation highlight two constitutional concerns. First, “horizontal” separation of powers issues arise when the Legislative Branch delegates its Article I legislative power over spending decisions to the Executive Branch. Second, “vertical” separation of powers problems emerge when the federal government infringes on state sovereignty by compelling states to enact or refrain from enacting its policies.

These two concerns implicate strikingly different areas of constitutional doctrine. On delegation, the Supreme Court has tended to be permissive, typically requiring that Congress merely determine legislative policy before it delegates further policymaking. On federalism, however, the Supreme Court has outlined an “anticommandeering doctrine” through several cases in which it invalidated congressional attempts to command states to enact or not enact certain policies.

The interaction of these doctrines against the backdrop of substantial congressional delegation to the Executive Branch creates a gap in structural constitutional law. While the anticommandeering doctrine, in its current form, says that Congress cannot “dictate[] what . . . state[s] . . . may [or] may not do,” the Supreme Court has never before decided a case in which the Executive Branch has attempted to commandeer states. Moreover, recent instances of the Executive Branch asserting statutory authority to dictate state policy raise the question of whether Congress can avoid commandeering challenges by delegating. If this were constitutionally permissible, an Executive actor could use broad statutes to compel states to implement policies against the state’s will.

This note argues that, in light of this gap, current anticommandeering doctrine fails to fulfill its purpose of protecting state sovereignty. A more comprehensive anticommandeering doctrine should account for Congress’ broad delegation of authority to the federal executive so as to limit threats to state autonomy. Building off established canons of statutory interpretation for delegation, this note proposes an “anticommandeering canon” for courts to invalidate exercises of delegated power that threaten to dictate state policies.

Displaying Lenity: Why Courts Should Adopt a Presumption Against Copyright Infringement for Embedding and the Display Right

Saumya Vaishampayan

Embedded links differ from other forms of hyperlinks in how they deliver the linked content to viewers of a webpage. “Surface links” refer the webpage viewer to the homepage of another website and require the viewer to take an action—click—to see the linked content. “Deep links” refer the webpage viewer deeper into another website, connecting the viewer to another website’s interior webpage; they also require the viewer to click to see the linked content. Framing presents a webpage viewer with the content of a second webpage, framed by the logo and the company that operates the first webpage. Finally, in-line linking, or embedding, presents a webpage viewer with elements from another webpage, like an image, without requiring the webpage viewer to click.

Embedding presents a question of line-drawing: courts must determine whether the embedding party has done enough to satisfy the statutory standard for (1) displaying a copyrighted work and (2) doing so publicly. Because embedding is so common, this unsettled area of copyright law has the potential to expose masses of internet users to liability.

Come Hell or High Water: Protecting New Jersey’s “Overburdened” Coastal Communities Through Environmental Justice

Kayla Greenawalt

With the help of the environmental justice movement, recent legislation acknowledges the disproportionate impacts of environmental harm faced by minority and low-income communities. In 2020, New Jersey passed the country’s strongest environmental justice law, recognizing that the state’s “low-income communities and communities of color have been subject to a disproportionately high number of environmental and public health stressors, including pollution from numerous industrial, commercial, and governmental facilities located in those communities.” This law aims “to limit the future placement and expansion of such facilities in overburdened communities.” The term of art, “overburdened community,” is defined as a community where at least 35 percent of households are low-income, at least 40 percent of residents are minorities, or at least 40 percent of “households have limited English proficiency.” However, neither this law nor the environmental justice laws and legislation in other states address overburdened communities’ vulnerability to climate change-induced extreme weather events. If law and policy does not evolve with climate, these communities will continue to be caught in a cycle of recovering from “the storm,” never given enough time or resources to prepare for the next one they must weather.

This Note analyzes the disproportionate impacts experienced by New Jersey’s overburdened coastal communities after extreme weather events and how environmental justice legislation can build climate resilient communities. Part II addresses the increasing frequency of extreme weather events in New Jersey and their disproportionate impacts on overburdened communities. Next, Part III highlights recent environmental justice legislation in states with vulnerable coastal communities. Finally, Part IV of this Note calls for environmental justice legislation that addresses the ongoing climate crisis’s disproportionate impact on New Jersey’s overburdened coastal communities.

Drug Addiction in New Jersey: Community-Based Treatment as a Viable Alternative to Drug Court

Benjamin M. Slovin

After the New Jersey State Legislature passed a series of overly punitive drug laws in the 1980s to stifle drug use, a myriad of issues ensued. Faced with a swelling prison population and corrections budget, legislators and judges realized that they had to act fast. Rather than repeal the drug laws that were plagued from the start, they turned to the state-wide implementation of a drug court system as a panacea.

New Jersey’s drug court system has proven to be more burdensome than beneficial in delivering addiction treatment services to those who require them most. Fortunately, diversionary programs throughout the state concentrated on community, municipal, and local levels hold great promise. Although they are relatively new, such programs have the potential to detect and treat drug addiction at earlier stages, further long-term recovery, and save more money than New Jersey’s current drug court system.

Part II of this Note explains how New Jersey’s drug court system came into existence and the way its treatment process works. Part III elaborates on the wide array of downsides evident in New Jersey’s drug court system. Part IV highlights recent, cutting-edge, local alternatives to New Jersey’s drug court system that can positively change the way in which addiction is handled throughout the state.