https://verdict.justia.com/ Legal analysis and commentary from Justia.com with the columinst team of Vikram Amar, Neil Buchanan, Sherry Colb, John Dean, Michael Dorf, Joanna Grossman, Marci Hamilton, Julie Hilden, Joanne Mariner and Anita Ramasastry. Thu, 06 Nov 2025 03:59:29 +0000 en-US hourly 1 Legal Analysis and Commentary from Justia Verdict false Verdict opinionsupport@justia.com Copyright © Verdict 2013 Copyright © Verdict 2013 podcast Legal Analysis and Commentary from Justia https://verdict.justia.com/wp-content/uploads/2017/08/main.png https://verdict.justia.com 24567935 https://verdict.justia.com/2025/11/06/little-league-litigation-and-the-limits-of-justice-an-american-tale Thu, 06 Nov 2025 05:01:21 +0000 https://verdict.justia.com/?p=28893

Justice is among the most important values any society can pursue and provide. While it is by no means easy to figure out what people deserve, standing up to ensure that justice is done is a disposition that every decent society needs to cultivate in its citizens.

It is especially important to cultivate it among democratic citizens at a time when governments here and around the world don’t seem committed to doing justice. However, standing up for justice is most valuable when we pursue it not just or primarily for ourselves, but are doing it for others.

I thought of this as I read a riveting story in the October 16 ABA Journal. It recounts an unprecedented intervention by a judge in a case arising out of an umpire’s decision in a Little League game.

The case contained the action of a dramatic tale, with enormous highs followed by quick and devastating disappointment. Whatever its significance for Little League baseball, it is, I think, also an important touchstone for a larger conversation about the pursuit of justice and its limits.

The Little League case is one sign, as the philosopher Jared Henderson explains, that “We are a justice-obsessed culture….” But justice is not the only virtue.

That recognition is as old as the ancient Greeks and as important today as it was then. Aristotle, who wrote centuries before the birth of Christ, clearly thought that justice was an important virtue. But he recognized that it is one among many virtues that have to be cultivated in a good society.

In the Roman Catholic tradition, St. Augustine places justice among four cardinal virtues, the others being fortitude, prudence, and temperance. Prudence means exercising good judgment and right decision-making, the combination of which is wisdom. It helps “people to choose that act which here and now best helps them to move in the direction of their final end.”

Without prudence, the pursuit of justice can be taken to injurious extremes. In fact, there is a psychological category called “justice sensitivity” that describes “a strong sense of fairness and a deep need for justice.”

But no one could survive and thrive in a world in which they had to right every wrong.

Here, prudence counsels having a sense of proportion and a willingness to suffer injury where injury is sufferable.

Thomas Jefferson advocated prudence in the Declaration of Independence, saying revolution was only justified by a “long train of abuses and usurpations.”

I was brought back to Aristotle, St. Augustine, and Jefferson as I read the ABA Journal article.

It tells the story of Marco Rocco, a 12-year-old Little League baseball player, who hit a dramatic home run in the sixth inning of a game that would “send his team to the state championship playoffs.” I get joy from imagining what Marco must have felt as he saw the ball fly over the fence.

But the ABA Journal recounts, as he “trotted around the bases…, an umpire ejected him from the game for tossing his bat. Under Little League rules, an ejection also required him to be suspended for one additional game.”

What happened subsequently is a tale about the pursuit of justice and its limits.

Marco and his father were justifiably frustrated and confused because no Little League rule prohibited bat flipping and because Little League International “celebrates them on its website and on social media.” Surely something was not right.

Why should Marco have to miss the first game of the state championship if he didn’t do anything wrong?

So, when they could not get redress elsewhere, they filed suit, and in July, a New Jersey judge found in their favor, “reversing the umpire’s call and allowing Marco to play in the next game.”

That decision righted a wrong done to Marco and may benefit other Little Leaguers in the future. But I don’t think that the judge’s decision made headlines in newspapers and on television all over the country because the suit exemplified caring about the rights of others.

They highlighted changing norms about sportsmanship and decorum in sports at all levels and emphasized how special it was for a father to go to bat for his son. As Marco’s father said, “If you believe you’re right, you take matters into your own hands and find a way to get it done.”

But maybe there is something else that we need to teach our children and encourage in all citizens. Let’s call it a sense of proportionality, governed by prudence.

Recall the admonition, “Don’t make a federal case out of it.” That once common parlance cautioned all of us against acting as if something “is a much more serious problem, mistake, etc. than it really is.”

That phrase was a reminder that not every wrong, no matter how painful, needs to be remedied. Many Americans in all walks of life have forgotten that.

We might all be better off if we remembered that even if the umpire was wrong, as the court said he was, it wasn’t worth making a federal case out of it.

I am glad for Marco that he got to play in the state championship and that he has a father who cares so much about him. As he grows up, he will have a chance to learn from Aristotle, St. Augustine, and Jefferson about when it is important to pursue justice and when it is wise not to do so.

We could all benefit from remembering their teachings.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.

]]> 28893 https://verdict.justia.com/2025/11/05/navigating-the-political-thicket Wed, 05 Nov 2025 05:01:42 +0000 https://verdict.justia.com/?p=28889 Rucho v. Common Cause—lasting reform must come from a combination of legal advocacy and grassroots political action, such as the establishment of independent redistricting commissions.]]>

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On a recent episode of the Touro Law Review podcast, I was pleased to host a timely and incisive discussion with Ruth Greenwood, Assistant Clinical Professor and Director of the Election Law Clinic at Harvard Law School.

In this episode, Professor Greenwood and I discussed the legal and political landscape of electoral districting. More specifically, our discussion focused on the Supreme Court’s hands-off approach to partisan gerrymandering and the pending constitutional challenge to the Voting Rights Act (VRA).

For a comprehensive analysis of these critical issues, I invite you to listen to our full discussion, available here. With the assistance of Artificial Intelligence (AI), I provide a summary below of the key points of our conversation.

Gerrymandering Defined

Professor Greenwood began our conversation by defining gerrymandering, tracing the concept back to its origins with Massachusetts Governor Elbridge Gerry in 1812. While the term originally described the drawing of bizarrely shaped districts (a “salamander”), its modern meaning is the drawing of electoral lines to seek advantage for a specific group—be it a political party, a racial group, or a set of incumbents.

Professor Greenwood provided a thumbnail history of gerrymandering, from malapportionment through the Supreme Court’s “one person, one vote” jurisprudence in the 1960s up to partisan gerrymandering today. As she elaborated:

Malapportionment, the original method of gerrymandering, involved creating districts of vastly unequal populations, diluting the power of urban voters. In the 1960s, the Supreme Court entered the “political thicket,” applying the Equal Protection Clause to mandate districts of equal population according to the principle of “one person, one vote.” With populations equalized, parties seeking an advantage turned to sophisticated methods of “packing” and “cracking” voters based on their known political affiliations. This is the form of (political) gerrymandering pursued today.

Professor Greenwood gave the following example of modern gerrymandering: The 2012 Wisconsin election, in which Democrats won 52 percent of the statewide vote but secured only 37 percent of the state assembly seats—a “wrong winner outcome” that strikes many as fundamentally anti-democratic.

The Federal Courts Step Back: Rucho v. Common Cause (2019)

Professor Greenwood then discussed the federal judiciary’s current stance on partisan gerrymandering. She detailed the Supreme Court’s 2019 landmark decision in Rucho v. Common Cause. (As Professor Greenwood noted in the podcast, she litigated Rucho from the trial level to the Supreme Court.) In a 5-4 opinion written by Chief Justice John Roberts, the Court held that claims of partisan gerrymandering present a non-justiciable political question. While conceding that “excessive” extreme partisan was “incompatible with democratic principles,” the majority nevertheless held that federal courts lacked a “manageable standard” to determine when lawful political considerations crossed the line into unconstitutional partisanship. The Court concluded that political gerrymandering must be addressed primarily by the legislative branches, not the federal courts.

Justice Elena Kagan dissented. She argued that manageable standards do exist and that the Court was abdicating its constitutional duty by holding that political gerrymandering claims were not justiciable in federal court. As Professor Greenwood noted, Kagan’s dissent emphasized that voters should choose their politicians—not the other way around.

Now Pending at the Supreme Court: Callais v. Landry

In addition to political gerrymandering, Professor Greenwood and I discussed litigation now pending at the Supreme Court involving claims under Section 2 of the VRA.

Initially Professor Greenwood provided an overview of the VRA, which evolved from protecting the right to vote (that is, combatting disenfranchisement) to protecting the value of the vote (that is, combatting vote dilution). The 1982 amendments to the VRA established a “results test,” allowing plaintiffs to challenge districting maps that have a disparate impact on minority voters regardless of the map-drawers’ intent. This results test was affirmed by the Supreme Court in 1986 in Thornburg v. Gingles.

The “results test” doctrine is now at the center of a case now pending at the Supreme Court, Callais v. Landry. Professor Greenwood, whose clinic is involved in the case, set out the history of the case: Following the 2020 census, plaintiffs brought a Section 2 lawsuit (Robinson v. Landry) arguing that Louisiana, which has a one-third Black population, must draw two, rather than one, majority-Black congressional districts.

Subsequently, after the Supreme Court applied Gingles in an Alabama case involving a challenge to the state’s redistricting map, Allen v. Milligan (2023), the Louisiana legislature acted to comply with the VRA by drawing a new map with a second majority-Black district.

This prompted a group of white voters, the plaintiffs in Callais, to sue. They argued that this new map was an unconstitutional racial gerrymander under the 14th Amendment. Citing the Supreme Court’s decision in Shaw v. Reno (1993) and other authorities, the plaintiffs asserted that race improperly “predominated” in the Louisiana’s legislature’s decision when creating the second majority-Black district.

According to Professor Greenwood, Callais presents the following question: Does complying with Section 2 of the VRA inherently require an unconstitutional racial gerrymander? The Court’s decision could determine the future viability of the VRA.

The Path Forward: Advocacy Inside and Outside the Courts

Professor Greenwood concluded that in this challenging legal environment, advocates for fair political representation must pursue a multi-pronged strategy. While litigation remains a crucial tool for creating a “record,” Rucho demonstrates the limitations of a court-centric approach.

The most durable solution, she argues, is outside the judiciary. In states like Michigan, Professor Greenwood noted, activists successfully used a ballot initiative to create an independent redistricting commission, thereby taking the map-drawing power away from partisan legislators entirely. This combination of legal advocacy and grassroots organizing, Professor Greenwood said, is essential to ensuring that American democracy lives up to its foundational principles.

Rodger Citron is the Associate Dean for Research and Scholarship and Professor of Law at Touro University, Jacob D. Fuchsberg Law Center.

Ruth Greenwood is an Assistant Clinical Professor and the Director of the Election Law Clinic at Harvard Law School. She engages in litigation and advocacy on a variety of election law cases, while training the next generation of election lawyers. Professor Greenwood litigated two partisan gerrymandering cases from the trial level to the Supreme Court of the United States, Gill v. Whitford (2018) and Rucho v. Common Cause.

Follow @CitronRodger

Rodger Citron is the Associate Dean for Research and Scholarship and Professor of Law at Touro University, Jacob D. Fuchsberg Law Center. He is a graduate of Yale College and Yale Law School and, among other things, was a trial attorney at the Department of Justice before becoming a law professor.

]]> 28889 https://verdict.justia.com/2025/11/04/could-president-trump-be-punished-for-killing-suspected-drug-traffickers-on-the-high-seas Tue, 04 Nov 2025 05:01:16 +0000 https://verdict.justia.com/?p=28884

Did President Donald Trump violate U.S. criminal statutes and international law by ordering the deaths of 64 supposed “narcoterrorists”? This article, like many others, says he did. Then it considers a question that has received less attention. Does the President risk conviction in the International Criminal Court or in U.S. courts for his conduct?

Fifteen Known Attacks

Trump announced on September 2, 2025, that, pursuant to his orders, the U.S. Navy had killed eleven foreign nationals operating a speedboat on the high seas. He maintained that they were “Tren de Aragua Narcoterrorists” heading to the United States and transporting illegal drugs. The next day, Secretary of State Marco Rubio told reporters: “Instead of interdicting it, on the president’s orders, we blew it up. And it’ll happen again. Maybe it is happening right now.” Secretary of Defense Pete Hegseth declared: “This is a deadly, serious mission for us and it won’t stop with just this strike. Anyone else trafficking in the waters who we know is a designated narco-terrorist will face the same fate.”

Since those statements, President Trump and Secretary Hegseth have announced 14 more fatal strikes. They occurred on September 15 and 19; on October 3, 14, 16, 17, 21, 22, 24, 27, and 28; and on November 1. (There were three strikes on October 27.) At the time of this writing, the United States has killed at least 64 suspected drug traffickers.

In addition, the U.S. has captured and repatriated two survivors. On October 27, the military spotted another survivor clinging to some wreckage but did not rescue him. Instead, it conveyed his location to Mexican military authorities. According to Secretary Hegseth, Mexico “assumed responsibility for coordinating” the survivor’s rescue, but the Mexican navy abandoned its unsuccessful efforts after four days. So make that 65 killings.

Both Vice President J.D. Vance and President Trump have joked that they “wouldn’t go fishing right now in that area of the world.” Fishermen in the Caribbean are in fact afraid and have limited their activities.

Unrevealed Intelligence

Neither Trump nor anyone else in his administration has revealed what intelligence led to the conclusion that the people he ordered killed were “narcoterrorists.” Did this intelligence match the quality of that allegedly showing that Sadam Hussein had weapons of mass destruction in 2003, or that which led to the deaths of 54 civilians and injured 50 others celebrating a wedding in Afghanistan in 2002, or that which led to a mistaken Hellfire missile strike on a Toyota that killed three adult Afghan civilians and seven children in 2021? A critic of Trump’s actions, Senator Rand Paul (R-KY), doubted that the destination of the speedboats was the United States 2,000 miles away. He also reported that, before the deadly strikes began,  the Coast Guard failed to find drugs 25 percent of the time when it stopped and searched vessels thought to carry them.

President Gustavo Petro of Colombia disputed the administration’s account of two strikes. On October 8, he wrote on social media that the boat destroyed on October 3 “was Colombian, with Colombian citizens inside.” The White House, which had not previously indicated that the U.S. had targets other than Venezuelan gang members, called Petro’s statement “baseless” and “reprehensible.” Two unnamed U.S. officials, however, told the New York Times that Colombians had been aboard one of the destroyed boats.

On October 18, Petro said that one of the victims of the strike on September 15 was Alejandro Carranza, who “had no ties to drug trafficking” and whose “daily activity was fishing.” Petro reported that “the Colombian boat was drifting and had a distress signal on because it had one engine up.” He added that the boat was in Colombian territorial waters. President Trump responded by calling Petro “an illegal drug dealer” with “a fresh mouth toward America.” He also ended aid to Colombia (formerly a close U.S. ally) and said that he would announce new tariffs on Colombian goods. Colombia recalled its ambassador to the United States on October 20, and the U.S. imposed sanctions on Petro, his wife, and his son on October 24. Six recent U.S. strikes have apparently targeted Colombians rather than Venezuelans. Secretary Hegseth announced that the October 17 strike destroyed a vessel associated with a Colombian rebel group, and the October 21 strike, the three October 27 strikes, and the October 28 strike apparently occurred off Colombia’s Pacific coast.

Relatives of Chad Joseph, a 26-year-old citizen of Trinidad and Tobago, believe that he and a neighbor were among the six people killed in the October 14 strike. The relatives describe Joseph as a fisherman who was not involved in drug trafficking. They believe he was hitching a ride home after a stay in Venezuela.

President Trump’s penchant for exaggeration contributes to skepticism about his claims. He has said repeatedly that “every boat we knock out we save 25,000 American lives.” Did he suppose that not even one user of the destroyed drugs would have consumed a less than fatal dose? Politifactrated Trump’s claim “Pants on Fire.” Sinking 15 vessels could not have saved 375,000 lives, four times the number of Americans who died last year from drug overdoses. Moreover, stopping the boats and destroying the drugs might have saved an equal number of lives—without taking those of the alleged traffickers.

It’s Murder

A federal statute defines murder as “the unlawful killing of a human being with malice aforethought.” Another statute proscribes conspiring within the United States to commit murder outside the United States. A third grants the federal courts jurisdiction to try U.S. nationals for murder on the high seas.

“Malice aforethought,” the mental state required for murder, is a term of art. Law students learn that it requires neither maliciousness nor forethought. Instead, judges instruct jurors: “To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.” Trump’s killing and his intent to kill are clear. The only remaining element of murder is that his order must have been unlawful.

Neither Trump nor anyone else in his administration has supplied a plausible legal justification for his order. The President’s notification to Congress of the initial boat strike simply recited without elaboration the words “self-defense,” “Commander in Chief,” and “Chief Executive.” A later notification declared that the United States is engaged in “a non-international armed conflict” with drug cartels and that the cartels’ drug runners are “enemy combatants.”

No knowledgeable authority outside the Administration appears to have accepted the Administration’s asserted justifications or concluded that Trump’s order was lawful—not one. Even the author of some infamous, later-rescinded Justice Department memoranda authorizing the use of waterboarding and other enhanced interrogation techniques questioned the order’s legality. According to Georgetown professor Marty Lederman, this order was “so manifestly unlawful that in any other administration, including Trump’s first, if anyone had even dared propose it, virtually every attorney who got wind of it, across the government—and many non-lawyer officials, too—would have immediately dismissed it as obviously out of bounds. It wouldn’t have been a close call.” Jeffrey Corn, formerly a JAG officer and senior adviser to the Army on law-of-war issues, said of the claim that the President can declare drug traffickers enemy combatants and kill them: “This is not stretching the envelope. This is shredding it.” A group of independent U.N. experts concluded that the strikes were “extrajudicial execution.” The UN’s High Commissioner for Human Rights demanded that the US “halt such attacks and take all measures necessary to prevent the extrajudicial killing of people aboard these boats, whatever the criminal conduct alleged against them.”

The killings commanded by President Trump were more clearly unlawful than those previously ordered by U.S. Presidents, some of which might have been unlawful themselves. The people he ordered killed were civilians, not enemy combatants; they did not threaten imminent death or serious bodily injury; they had not engaged in a sudden invasion of the United States; no congressional authorization of the use of military force (like those approving force against Iraq and the 9/11 attackers) applied; and, most importantly, if any legitimate claim of self-defense or other preventive purpose existed, that purpose could have been achieved by seizing the vessels and arresting and prosecuting their occupants.

Secretary of State Rubio offered this justification of the administration’s policy: “Interdiction doesn’t work because these drug cartels . . . know they’re going to lose two percent of their cargo. They bake it into their economics. What will stop them is when you blow them up, you get rid of them.” When, however, the seizure of a vessel and the drugs it carries is followed by the prosecution, conviction, and imprisonment of its crew, a cartel is deprived of the same goods and the same personnel that it loses when the United States kills the crew.  But killing may be less expensive than imprisonment (despite the high cost of Hellfire missiles and MQ-9 Reaper drones), and imposing the death penalty without trial may have a deterrent effect.

One wonders whether the U.S. government would applaud a foreign government’s killing of a U.S. citizen traveling in international waters or airspace if that government had determined that the U.S. citizen was a “narcoterrorist.” For example, Ross Ulbricht, a U.S. citizen using the name Dread Pirate Roberts, operated a multi-million-dollar darknet market called Silk Road that facilitated the anonymous sale and purchase of narcotics worldwide. Sales through Silk Road led to at least six drug overdose deaths—three in the United States and three in Australia—and Ulbricht was alleged to have sought hired killers to dispatch people he considered threats to his business. In 2015, Ulricht was convicted of distributing narcotics and other crimes and sentenced to two life terms in prison plus 40 years without the possibility of parole. But on the first day of Trump’s second term as President, he granted Ulbricht a full and unconditional pardon, calling the people who prosecuted him “scum.” (On some days, Trump is a drug warrior, and on others a libertarian.) While Ulbricht was operating Silk Road, could the government of Australia have put him on a “narcoterrorist” list and killed him?

The President announced on October 17: “The two surviving terrorists [of the October 16 strike] are being returned to their Countries of origin, Ecuador and Colombia, for detention and prosecution.” Ecuador and Colombia, however, apparently had not agreed to prosecute. After interviewing the captive repatriated to Ecuador, prosecutors released him, saying that there was no evidence that he had committed any crime in that country. Colombia’s Minister of the Interior announced that the captive repatriated there was hospitalized with brain trauma and was breathing on a ventilator. He would, however, be “processed by the justice system for drug trafficking” once he returned to consciousness.

The Ecuadorian captive may be the only supposed prisoner of war in world history ever to be repatriated unconditionally while able-bodied and while the supposed hostilities continued. The United States apparently did not obtain even a pledge that he would not return to “combat.” Holding him as a U.S. prisoner, however, would have enabled him to bring a habeas corpus action challenging the legality of his confinement, and the administration apparently feared that even the Trump-friendly Supreme Court might hold its attacks unlawful. An adverse ruling would have required the administration either to desist or to disregard the Court’s determination.

Was the U.S. failure to rescue the October 27 survivor and its call upon Mexico to lead the rescue effort prompted by the dilemma U.S. custody would have posed? How far away was the nearest U.S. helicopter or ship that could have made the rescue? Did the U.S. military personnel who spotted the survivor supply him with a life raft, a life jacket, and/or a signal device? Did the Administration’s effort to evade judicial review of its actions cause his death?

Obtaining Legal Advice

The website of the Justice Department’s Office of Legal Counsel (OLC) says that it “provides legal advice to the President and all executive branch agencies” and that it usually addresses “legal issues of particular complexity and importance.” After the Trump-ordered killing of Iranian General Qassam Soleimani in 2020, an OLC memorandum explained why it considered this killing lawful. It noted that OLC had “provided advice in anticipation of the potential strike.” This memorandum was released, however, only as the result of a Freedom of Information Act (FOIA) lawsuit.

Similarly, President Barack Obama obtained the OLC’s advice before ordering the killing of Shaykh Anwar al-Aulaqi. Al-Aulaqi was a dual citizen of the United States and Yemen and an Al-Qaida leader alleged to be planning attacks against the United States. In 2010, several months before the National Security Council approved killing him, a top-secret OLC memorandum explained why, in its view, the killing would be lawful. After the NSC’s action but more than a year before U.S. forces found and killed al-Aulaqui, the OLC prepared a more thorough memorandum. Following al-Aulaqi’s death in 2011, the Justice Department prepared a “white paper” discussing the legal issues his case presented. (None of these documents were released, however, until 2014. Then they became public as a result of leaks and FOIA lawsuits.) Although Congress had authorized the use of all necessary and appropriate force against the governments, organizations, and individuals responsible for the attacks of 9/11, the Justice Department did not declare this authorization sufficient. It concluded that “a lethal operation directed against a U.S. citizen who is a senior operational leader of Al-Qa’aida” would be lawful only if (1) “an informed, high-level official of the U.S. government determined that the targeted individual pose[d] an imminent threat of violent attack against the United States,” (2) “capture [was] infeasible,” and (3) “the operation [was] conducted in a manner consistent with applicable law of war principles.”

When asked on October 7 by a member of the Senate Judiciary Committee about the legal justification for the speedboat strikes, Attorney General Pam Bondi replied: “I’m not going to discuss any legal advice that my department may, or may not, have given or issued at the direction of the president on this matter.” On the same day, however, Trump’s nominee to be general counsel of the Army said at his confirmation hearing that he had seen an OLC opinion on the  subject. He did not describe this opinion’s contents, but “multiple” sources told CNN that it “authorize[d] deadly force against a broad range of cartels because they pose an imminent threat to Americans.”

A classified October 2 briefing of the Senate Armed Services Committee came, not from the OLC, but from Earl Matthews, General Counsel of the Department of Defense. Matthews refused requests to provide written justification for the strikes, and some senators of both parties called his legal case for the strikes insufficient. The senior Democrat on the committee, Senator Jack Reed, declared: “Every American should be alarmed that the president has decided he can wage secret wars against anyone he calls an enemy.”

A request for a legal opinion might have posed an unpleasant choice for T. Elliot Gaiser, the Assistant Attorney General in Charge of the OLC. Gaiser is a 2016 law school graduate who has risen rapidly in MAGA ranks. On the one hand, President Trump would have wanted Gaiser to validate his proposed course of action, and the President has been known to fire and replace Justice Department lawyers who do not give him the answers he wants. On the other hand, delivering the answers Trump desired would have facilitated a serious crime. It would have posed some chance of Gaiser’s prosecution and a greater chance of his disbarment. (Cabinet and subcabinet officers probably are not entitled to any sort of immunity from criminal prosecution, but a President can pardon them before he leaves office.)

Gaiser recently told a group of legislators that, although the U.S. military forces are engaged in “a non-international armed conflict,” they are not engaged in “hostilities.” If the fatal strikes were “hostilities,” the War Powers Resolution of 1973 would require the Administration either to obtain congressional approval or bring them to an end. According to the Washington Post, Gaiser maintains that the killings are not hostilities because the targeted smugglers have no way to shoot back and put U.S. military personnel in danger.

Some authorities have suggested that the OLC’s prior approval of a presidential action would block the President’s conviction and punishment for this action. Jack Goldsmith, a Harvard professor and former Assistant Attorney General in Charge of the OLC, writes that the OLC’s secret memorandum concerning the drug strikes “confers a ‘golden shield’ of immunity from prosecution on anyone who acts in reliance on it.” During last year’s Supreme Court argument about presidential immunity, Justice Samuel Alito asked a lawyer appearing on behalf the Special Counsel’s office: “If the president gets advice from the attorney general that something is lawful, is that an absolute defense?” Counsel replied: “Yes, I think that it is. Under the principle of entrapment by estoppel, . . . if an authorized government representative tells you that what you are about to do is lawful, it would be a root violation of due process to prosecute you for that.” An outstanding New York Times analysis of the attacks by Charlie Savage and Karoun Demirjian includes one questionable sentence: “Even if the Justice Department memo that somehow blesses the killings lacks much actual legal analysis and even if a future administration rescinds it, its existence essentially forecloses any prospect of future prosecutions.”

In fact, “entrapment by estoppel” excuses only reasonable reliance on a public official’s opinion. When an OLC opinion supplying the answer a President wants was prepared by a lawyer who might have been fired and who at least would have lost favor if he had given a different answer, and when many knowledgeable lawyers outside the government have forcefully given the opposite answer, the OLC opinion seems close to worthless. If President Trump were ever to be prosecuted and were to invoke entrapment by estoppel, a jury in the District of Columbia would determine whether his reliance on this opinion was reasonable.

The administration has not seemed eager for impartial legal advice. Before Pete Hegseth’s appointment as Secretary of Defense, he referred to the top legal officers of the Army, Navy, and Air Force—their Judge Advocate Generals—as “jagoffs,” and, upon taking office, he fired them. He said that he did not want military lawyers who would pose “roadblocks to orders that are given by a commander in chief.” Later, Hegseth said that he favors “maximum lethality, not tepid legality.” After declaring that “killing cartel members who poison our fellow citizens is the highest and best use of our military,” Vice President Vance responded to a commentator who insisted that this action was instead a war crime: “I don’t give a shit what you call it.”

Could Trump Ever be Prosecuted?

The International Criminal Court (ICC) has issued warrants for the arrest of Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu. Like the United States, Russia and Israel have not recognized that court’s authority. But the ICC claims jurisdiction under Article 12(2)(a) of the Rome Statute of the International Criminal Court because Putin and Netanyahu are alleged to have committed war crimes in Ukraine and Palestine, territories that have approved the Rome Statute.

Former Philippine President Rodrigo Duterte is in ICC custody in the Hague where his lawyer contends that his cognitive decline has left him unfit to stand trial. On September 22, the ICC revealed the charges prosecutors have filed against him. As Mayor of Davao and then President, Duterte and his security forces are alleged to have killed at least 76 people without trial as part of Duterte’s war on drugs. (The specific killings identified by the ICC prosecutors are a tiny portion of the thousands that Human Rights Watch says Duterte authorized.) The ICC claims jurisdiction because the Philippines had approved the Rome Statute at the time of Duterte’s alleged offenses.

In 2017, President Trump called Duterte to say: “I just wanted to congratulate you because I am hearing of [your] unbelievable job on the drug problem. . . . [W]hat a great job you are doing.” If Duterte is still able to make calls, he can now return the compliment.

The jurisdictional grounds the ICC has asserted for prosecuting Putin, Netanyahu, and Duterte would not justify an ICC prosecution of Trump for crimes on the high seas, and there seems to be no other basis for ICC jurisdiction. (On October 15, however, the President announced that he was considering military strikes inside Venezuela and already had authorized covert CIA action inside that nation. Venezuela has ratified the Rome Statute of the International Criminal Court, and so has Colombia.)

In his 2010 memoir Decision Points, former President George W. Bush reported that, when he was asked to approve waterboarding Khalid Sheikh Mohammed (who was alleged to be the principal architect of the 9/11 attacks), he answered: “Damn right.” Bush’s acknowledgment and other evidence led Amnesty International, the Center for Constitutional Rights, and other groups to urge his prosecution under “the principle of universal jurisdiction.” This principle allows any state to prosecute grave international crimes. Although no government filed charges, the threat of criminal proceedings and protests in Switzerland led Bush to cancel a scheduled appearance in Geneva.

The supporters of Bush’s prosecution emphasized the United States’ ratification of the Convention Against Torture. That treaty does not expressly proscribe unjustified extrajudicial killings, but it may possibly do so by implication. Trump’s order does appear to violate the general provisions of the Universal Declaration of Human Rights (a non-binding statement of principles) and the International Covenant on Civil and Political Rights (a ratified treaty that does not provide for criminal enforcement).

In U.S. courts, the Supreme Court’s 2024 decision in Trump v. United States, which approved broad presidential immunity, may seem to preclude prosecuting Trump. Writing in dissent, Justice Sonia Sotomayor said that the Court had blocked the prosecution of a hypothetical presidential order even more troublesome than Trump’s. She wrote: “When [the President] uses his official powers in any way, . . . he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? . . . Immune, immune, immune.”

The majority, however, accused Justice Sotomayor of “fear mongering on the basis of extreme hypotheticals” and declared: “[T]he dissents . . . strike a tone of chilling doom that is wholly disproportionate to what the Court actually decides today.” The majority appears to have had the better understanding of how its ruling applies to the “Seal Team 6” hypothetical. Justice Sotomayor’s hypothetical president would be subject to prosecution, and so would President Trump if he were charged with murdering “narcoterrorists.”

Trump’s action was official, and, without deciding the issue, the Court said that it might eventually hold all official presidential actions immune. For now, however, the Court declared that only exercises of “core” presidential powers are “absolutely” immune. Exercises of noncore powers are merely “presumptively” immune.

The Court explained that the term “core powers” refers to “conclusive” and “preclusive” powers whose exercise Congress may not restrict or regulate. Some of the President’s powers as commander-in-chief—for example, his power to direct troop movements—are undoubtedly “core,” but others are not. In particular, the Constitution would not bar congressional regulation of a power to kill “narcoterrorists” even if that power existed and even if a president could exercise that power without affirmative congressional authorization. The Constitution gives Congress, not the President, the power to “declare War,” to “make Rules concerning Captures on Land and Water,” and to “define and punish . . . Felonies committed on the high Seas, and Offenses against the Law of Nations.”

So Trump is entitled to “presumptive” rather than “absolute” immunity, and a prosecutor can defeat a claim of presumptive immunity by a showing that proceeding would pose “no dangers of intrusion on the authority and functions of the Executive Branch.”

This standard effectively gives presidents a reasonable-mistake-of-law defense as well as other protections. Because prosecuting a former president for an action he reasonably believed to be lawful could lead later presidents to play it safer than they should, the prosecution could pose a danger of intruding on the functions of the executive branch. But prosecuting a president for a clearly unlawful act would not give law-abiding successors any reason for concern. It would pose no danger of intruding on the legitimate functions of the executive branch.

Of course, one cannot be confident that the Supreme Court would reject Trump’s claim of immunity. Targeted killings by a president might seem to some justices to be a poster case for barring prosecution. Trump’s counsel in the Supreme Court, D. John Sauer (now the U.S. Solicitor General), began his argument by declaring: “Without presidential immunity from criminal prosecution, there can be no presidency as we know it.” In a parade of potential horribles, he asked: “Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike?”

A judge should not second-guess a president’s conduct of a legitimate military campaign. But judges are well qualified to say that using unnecessary deadly force to apprehend drug smugglers breaks the law. They are also well qualified to say that no reasonable president could think otherwise. A “hands off” refusal to consider the legality of presidentially ordered killings would (tautologically) enable a president to kill whomever he likes. Justice Sotomayor’s Seal Team 6 hypothetical would not be the “fear mongering” the Court said it was.

Even if the Supreme Court had not approved any sort of presidential immunity, Trump’s prosecution might be unlikely. A U.S. President cannot be charged with a crime until he leaves office, and a successor MAGA administration certainly would not prosecute him. Especially if Trump’s crimes had occurred years earlier, a successor Democratic administration might not file charges either. Attorneys General regularly defend presidential actions. As executive officers and presidential appointees themselves, they tend to favor broad executive power and to resist investigations of executive-branch officials. They realize that members of an opposing political party may do unto them whatever they have done to the members of that party. Attorneys General also know that prosecuting a former president would alienate his followers and be divisive and distracting.

The prosecution of personal and political enemies during Trump’s second term may change prosecutorial norms, but even if a prosecutor in a Democratic administration were to charge Trump with murder and even if Trump were to be convicted, America’s over-proceduralized legal system might enable him to delay his punishment for years. The life expectancy of the proceedings might exceed that of the defendant.

While campaigning for office in 2015, Trump declared: “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families.” Might an order to kill spouses and children be next? Might even this order escape punishment? What has America become?

Albert W. Alschuler, the Julius Kreeger Professor Emeritus at The University of Chicago Law School, is the author of The Justice Department's Reluctance to Prosecute, the Special Counsel's Regrettable Choices, and the Supreme Court's Unfortunate Immunity Decision: A History, https://ssrn.com/abstract=5406964 (August 26, 2025).

]]> 28884 https://verdict.justia.com/2025/11/03/botched-execution-in-alabama-reveals-nitrogen-hypoxias-true-colors-and-it-is-not-a-pretty-picture Mon, 03 Nov 2025 05:01:28 +0000 https://verdict.justia.com/?p=28881

Nitrogen hypoxia is a failure as an execution method. It works by depriving people of oxygen until they die in a gruesome spectacle.

It is just the latest in a series of fads in the ongoing and futile search for a way of killing death row inmates that would be safe, reliable, and humane. Electrocution, the gas chamber, lethal injection, and now nitrogen hypoxia—each of them was introduced with great fanfare and the hope that they would allow executions to continue in a way that would soothe our conscience.

Each of them has been unable to deliver on its promise, with nitrogen hypoxia, which was first used when Alabama put Kenneth Smith to death in 2024, most recently joining the list.

Using oxygen deprivation as a way for states to put people to death was proposed thirty years ago in a National Review article entitled “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation.” Other sources agreed that nitrogen hypoxia would kill with kindness, including a BBC documentary called “How to Kill a Human Being“ and Slate’s Tom McNichol, who wrote a piece called “Death by Nitrogen“ in 2014.

In 2015, Oklahoma became the first state to include it in its menu of execution techniques, but only as a backup if it could not carry out lethal injections. At the time, Mike Christian, the state representative who introduced the legislation, claimed, “The process is fast and painless…. It’s foolproof.”

Since then, four other states have followed suit, but only two, Alabama and Louisiana, have actually used it.

Eight people have been killed by nitrogen hypoxia, seven in Alabama and one in Louisiana. Their executions were neither fast nor painless. In fact, each execution by nitrogen hypoxia resulted in what Supreme Court Justice Sonia Sotomayor has called “psychological terror” and “excruciating suffocation.”

The latest took place on October 23, when Alabama killed Anthony Boyd, a Black man who was convicted and sentenced to death in 1995 for murdering Gregory Huguley. He did not fare any better than others executed by nitrogen hypoxia.

What this means is that the search for a technological magic bullet with which to put people to death has proved futile yet again. Doing the same thing and expecting a different result is not only the definition of insanity; it is, as the Atlantic’s Elizabeth Bruenig writes, “absurd.”

Bruenig is right to say that “there is no way to kill someone without some element of torture, either psychological, physical, or both.”

Now, with the memory of Boyd’s death still fresh, it is time to say no more, no more nitrogen hypoxia executions, no more capital punishment.

Justice Sotomayor tried and failed to convince the conservative majority on the Supreme Court to spare Boyd from death by nitrogen hypoxia and to allow him to die by the firing squad. She called his request “the barest form of mercy.”

Having failed to convince them to grant it, she did America a real service by offering a graphic description of the way nitrogen hypoxia works in terms all of us could understand.

“Take out your phone,” she wrote, “go to the clock app, and find the stopwatch. Click start. Now watch the seconds as they climb. Three seconds come and go in a blink. At the thirty-second mark, your mind starts to wander. One minute passes, and you begin to think that this is taking a long time. Two. . . . three. . . . The clock ticks on. Then, finally, you make it to four minutes. Hit stop.”

“Now,” she asked her readers, “imagine for that entire time, you are suffocating. You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe.”

Then, accurately predicting what would happen to Anthony Boyd, Justice Sotomayor continued, “For two to four minutes, Boyd will remain conscious while the State of Alabama kills him in this way. When the gas starts flowing, he will immediately convulse. He will gasp for air. And he will thrash violently against the restraints holding him in place as he experiences this intense psychological torment until he finally loses consciousness. Just short of twenty minutes later, Boyd will be declared dead.”

Sotomayor joined a long line of death penalty critics who have tried to educate the public about the realities of execution in the hope that they would be less likely to support capital punishment.

For example, in the 1972 case of Furman v. Georgia, Supreme Court Justice Thurgood Marshall suggested that if the American public were fully informed about the death penalty, they would reject it.

Fifteen years earlier, writing about the guillotine, the French writer Albert Camus argued, “If people are shown the machine, made to touch the wood and steel and to hear the sound of a head falling, then public imagination, suddenly awakened, would repudiate…the penalty.”

That’s why Justice Sotomayor provided detailed descriptions about the executions already carried out by nitrogen hypoxia. “Start with Kenneth Eugene Smith,” she said, “the first person to be executed using nitrogen hypoxia in our country’s history. When the nitrogen gas started flowing, Smith made ‘violent movements’ immediately as he ‘gasp[ed] for . . . air.’ His ‘feet and head left the gurney [and] his arms appeared to strain against his restraints. Smith convulsed for about two to four minutes, shaking the gurney several times. His wife testified that it was like ‘watching someone drown without water.’”

Summarizing what happened in each execution by nitrogen hypoxia, in each of them, “witnesses have reported similar observations each time: apparent consciousness for minutes, not seconds; and violent convulsing, eyes bulging, consistent thrashing against the restraints, and clear gasping for the air that will not come.”

The Boyd execution followed suit.

Witnesses reported that when it started, “Boyd clenched his fist, raised his head off the gurney slightly and began shaking. He then raised his legs off the gurney several inches…. [A few minutes later], he began a long series of heaving breaths that lasted at least 15 minutes, before becoming still.”

One of them, the Rev. Jeff Hood, Boyd’s spiritual advisor, who stood near him as he died and who was also at the first nitrogen gas execution, characterized what he saw as “the worst one yet. I think they are absolutely incompetent when it comes to carrying out these executions.”

He said, “he believed Boyd planned to try to communicate through his leg movements. He said he believed there was ‘some level of consciousness, in my opinion, for at least 16 minutes.’” Hood pointed out that “Alabama had promised nitrogen was a ‘quick, painless, easy form of execution and this is by far nothing anywhere close to that.’”

Not surprisingly, state officials insisted that everything in Boyd’s execution had gone according to plan.

If that is so, then they want us to join them in concluding that what happened to Boyd is acceptable. Before we do, we should remember that how a society punishes reveals as much about those who impose it as those who receive it.

All Americans should read Justice Sotomayor’s opinion and consider whether we want to be the kind of people who use an execution technique that imposes “conscious terror and psychological pain” and adds to the condemned person’s suffering after “it begins and while it is being carried out to completion.”

As the Justice put it, “Allowing the nitrogen hypoxia experiment to continue despite mounting and unbroken evidence that it violates the Constitution by inflicting unnecessary suffering fails to “‘protec[t] [the] dignity’ of ‘the Nation we have been, the Nation we are, and the Nation we aspire to be.’”

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.

]]> 28881 https://verdict.justia.com/2025/10/28/whats-at-stake-in-mike-johnsons-refusal-to-administer-the-oath-to-adelita-grijalva Tue, 28 Oct 2025 04:01:28 +0000 https://verdict.justia.com/?p=28876 Powell v. McCormack. Professor Dorf argues that Johnson’s actions appear to be a politically motivated and constitutionally baseless effort to block Grijalva from voting—potentially on the Epstein files discharge petition—and reflects a broader disregard for democratic norms and the rule of law.]]>

It has been more than a month since the voters of Arizona’s Seventh Congressional District elected Adelita Grijalva to the House of Representatives in a special election. Nobody contests that Grijalva won nearly 70 percent of the vote. Yet House Speaker Mike Johnson still has not administered the oath of office to her. Why not?

Although Johnson and his allies have given a variety of explanations, he has lately settled on one: he is waiting for the end of the government shutdown, which he blames on Senate Democrats. That is not plausible, however, because nothing precludes Johnson from administering the oath while the government is shut down. Accordingly, many observers have suggested that Johnson’s true motive is to prevent Grijalva from providing the decisive margin for a discharge petition that would result in a House vote to release the Jeffrey Epstein files.

Indeed, in a federal lawsuit she filed last week, Grijalva herself alleges that Johnson is delaying administering the oath to prevent the Epstein files’ release. As I explain below, Grijalva has a strong case for the relief she seeks: a declaratory judgment that any other person authorized to administer oaths may do so and that once that has happened, she should be deemed a House member.

The Constitution and the Complaint

Article VI of the Constitution provides that “Representatives . . . shall be bound by oath or affirmation, to support th[e] Constitution.” In light of that provision, it is generally accepted that a person elected to the House cannot take their seat until they have taken the oath.

The Constitution does not specify the terms of the oath, but a federal statute does. The Constitution also does not specify who administers the oath. Another federal statute provides that the Speaker of the House administers the oath to new members at the beginning of each session. That statute is silent about who administers the oath following special elections, but under the House precedents (as set forth at page 182), the Speaker or Speaker pro tem administers those oaths as well.

However, no federal statute or House precedent can prevail in a conflict with the Constitution. And the Constitution gives no power to the Speaker of the House or any other official to exclude a duly elected House member who has the requisite qualifications for office. We know because the House tried to do just that in 1967, when it refused to accept Congressman Adam Clayton Powell, Jr.’s re-election. Powell sued, and the Supreme Court sided with him in the 1969 case of Powell v. McCormack.

The Constitution, the Powell Court acknowledged, makes each chamber of Congress the judge of its members’ qualifications, but that does not empower the House to add qualifications to the constitutional minima: representatives must be at least 25 years old, must have been citizens for at least seven years, and must reside in the states they represent. That’s it. Because Powell satisfied those criteria, the House decision to exclude him (based on alleged criminal actions) could not be deemed an exercise of the power to judge his qualifications; it was an impermissible effort to add more qualifications than those set out in the Constitution.

Grijalva’s complaint relies extensively on Powell. Speaker Johnson’s delay in administering the oath, she argues, is an impermissible effort to exclude a qualified House member. That not only harms her and the residents of her district, she contends, but also the state of Arizona, which is also a plaintiff and argues that it is being deprived of one of the nine House seats to which the state is entitled.

Notably, the complaint follows Powell in two other respects as well. First, in Powell, the Supreme Court dismissed the suit insofar as it sought relief against individual members of Congress because they enjoy immunity under the Speech and Debate Clause of Article I, Section 6, but allowed the suit to proceed against various other individuals, including the Clerk and Sergeant at Arms of the House. Grijalva’s complaint names as defendants the House itself, the Clerk, and the Sergeant at Arms, but not Johnson or any other House member.

Second, in Powell, the Court thought it unnecessary to decide whether an injunction would be an appropriate form of relief because, it said, a declaratory judgment was available. Picking up on that concern, Grijalva’s complaint seeks declaratory but not injunctive relief.

What’s at Stake

Assuming the Supreme Court permits the lower federal courts to follow existing precedent—which is hardly guaranteed these days—Grijalva should win her suit. She could then ask a sympathetic federal judge to administer her oath of office, and the declaratory judgment would require the House to recognize her as a member.

Will that matter? Not necessarily. For one thing, the litigation itself could drag on longer than the government shutdown. If Speaker Johnson keeps his word and administers the oath to Grijalva before the courts have had a chance to resolve her case, the litigation will not have a practical impact.

Indeed, it is not clear that the litigation will have a practical impact even if Grijalva wins a quick victory in court. At that point, she would be able to take her seat in Congress, but because the House is currently not conducting any business, neither she nor any other House member would have an opportunity to vote on any matter—including the Epstein files discharge petition—until Johnson gavels the House back into session.

That fact makes Johnson’s refusal to administer Grijalva’s oath puzzling. Quite apart from any litigation, keeping the House shut down prevents Grijalva from voting for the Epstein files discharge petition or anything else. Once the House reopens and Johnson administers the oath, she will be able to vote on all matters. Thus, it is not at all clear that Johnson gains anything from refusing Grijalva the oath now, so long as he is true to his word and administers it once the House reopens.

So, what is Johnson up to?

Perhaps he does not intend to administer Grijalva’s oath even once the government shutdown ends. If so, that would amount to a serious escalation of his party’s assault on our democracy. Already, red states like Texas and Missouri have taken the extraordinary step of redrawing their electoral maps mid-decade to create even more extreme political gerrymanders in a naked effort to prevent Democrats from retaking the House in next year’s midterm elections. But at least there will be elections in those states. Simply refusing to seat elected Democrats without even the pretext that they are not qualified for office would be a de facto admission by Johnson that he and his party do not intend to be bound by the will of the voters.

However, even if Johnson intends to keep his word, his refusal to administer the oath during the government shutdown is disturbing. As Speaker, Johnson subordinates all interests—including those of his Louisiana constituents and the institutional interests of Congress—to the will of President Donald Trump. Although delaying Grijalva’s ability to take her seat would have no practical consequence, it is a show of arbitrary force that likely appeals to Trump because it reflects the same contempt for the Constitution and the rule of law that the Trump administration routinely displays.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.

]]> 28876 https://verdict.justia.com/2025/10/27/the-incentive-to-murder Mon, 27 Oct 2025 04:01:04 +0000 https://verdict.justia.com/?p=28871

---

A policy that incentivizes murder is morally obscene. As obvious as this may be, that is nonetheless where we are.

As I have described elsewhere, the Trump administration has taken to blowing up boatloads of presumptively innocent people on the open seas. So far, seven attacks have been publicly reported. In the most recent attack, two people survived. The administration took them into military custody but quickly repatriated them to Ecuador and Colombia, respectively, though the administration had to know that both would be promptly released.

I’m sure the Trump administration would’ve rather detained the survivors. But the administration can’t do what it wants and won’t do what it can, so it released them as the least bad option—an option that forced itself on the administration only because the two survived. Based on my very long experience defending foreign nationals detained by the U.S. military, I suspect very strongly that this is how it all came to pass.

***

Whenever state or federal officials in this country take someone into custody, they have two choices: they can continue to hold them, or they can let them go. Let’s assume the administration’s first impulse with these two survivors was not to release them, but to detain them. Then what?

At least for now, detention by state or federal authorities requires an adequate process backed by legal authority. Though it is not true in totalitarian states, in this country, the government cannot deprive a person of their liberty without legal authority. This has been a bedrock principle of the rule of law since long before the nation’s founding. As an essential corollary to this principle, the government cannot maintain a detention beyond a brief period unless it begins a process that will fairly establish the detention’s validity.

To be valid, this process must—at a minimum—provide the detained person with the opportunity to contest the legal and factual basis of their imprisonment. They must be able to show, in other words, that the government has no legal authority to act against them (no legal basis for the detention), and that even if it had the authority, that the person detained is not within the class of people against whom the government may act (no factual basis for the detention).

To be sure, the details of such a process will depend a great deal on what the government is trying to accomplish. If, for instance, the government believes the person committed a crime and wants to send them to jail or prison, it must invoke the criminal law to justify the detention. The government must present the person in open court and file charges against them, usually within 48 hours. After that, the entire architecture of the criminal process kicks into play, including the right to counsel, the presumption of innocence, the right of the accused to know the evidence against them and confront their accusers, the right to an appeal, etc.

In other contexts, the process established by law to justify a detention is considerably less protective of a person’s rights. In immigration cases, for instance, the objective is not to establish criminal liability but to expel the person from the country, and the process to effectuate the expulsion is much more perfunctory. But even in those circumstances, the government cannot deprive a person of their liberty without prior legal authority and a process that is sufficient to justify the detention. And that process cannot be sufficient unless, at a bare minimum, there is an opportunity to challenge the legal and factual basis for the detention.

So, how do these foundational principles apply in the case of the two survivors?

Can the U.S. Hold Survivors in Military Custody?

The administration claims the United States is at war with drug cartels and that the attacks on the boats are military actions. As many have observed, this is legal drivel; the government can certainly prosecute people caught smuggling drugs on the open seas (more on that below), but it cannot simply line them up against a wall and shoot them, which is effectively what they have done, seven times. But so long as these illegal strikes kill everyone aboard, no one has been able to challenge them in court. All that changed, however, when two people survived. The Trump administration no doubt asked itself whether it could hold the survivors in military custody, as though they were combatants. And when they were first rescued, that’s exactly what happened: they were held in military custody and labeled “enemy combatants,” like the prisoners at Guantanamo.

But any plan to hold these two in military custody was complicated by Rasul v. Bush (2004). After 9/11, the Bush administration tried to hold prisoners in military custody and without legal process at the U.S. Naval Station at Guantanamo. In Rasul, the Supreme Court refused to allow it. The Court held that prisoners at Guantanamo have the right to challenge the legal and factual basis of their detention in federal court in Washington, D.C. (Full disclosure: I was lead counsel in Rasul.) So, even if these two survivors had been flown to Guantanamo and detained at the military prison, they still would have been entitled to challenge the legal and factual basis for their detention in Washington, where many lawyers—myself included—were fully prepared to represent them.

And the administration must know that it would have lost that litigation, just as it lost Rasul. No court will uphold the ridiculous claim that we are at war with drug cartels, and that this undeclared and unauthorized “war” somehow vests the President with the legal authority to kill presumptively innocent people or imprison them without legal process. In the absence of legal authority, the United States government simply has no right to deprive anyone of their liberty, and a federal judge sworn to uphold the Constitution would have told them as much. And even if the administration could contrive some legal authority to detain these two people—if, for instance, Congress were to retroactively authorize the use of military force against alleged drug smugglers—the administration would still be obligated to present evidence that connected the survivors to drug smuggling. I doubt very seriously that such evidence exists, and if it does, I am even more skeptical that the government would be willing to present it in federal court. Perhaps that evidence existed at one time—perhaps there were drugs on that boat—but it is now at the bottom of the ocean.

Of course, the administration may try to evade Rasul. It may try to hold survivors somewhere even more remote or more inaccessible than Guantanamo, like the brig of a U.S. warship. It may also try to hold them in strict isolation, without disclosing their identity or making them available to the Red Cross. The purpose of all this secrecy is to frustrate the ability of lawyers like me from preparing and filing litigation on the prisoners’ behalf. But practices like this are doubly doomed. First, the detentions would eventually come to light, as they always do. Even the black sites—the secret prisons around the world where the CIA detained and tortured the so-called “high value” detainees after 9/11—were eventually uncovered. (Full disclosure: I represent Abu Zubaydah, the first prisoner held in a black site and tortured by the CIA.) And second, once the detentions were known, a court would rightly hold that the very act of hiding the prisoners reaffirms why they are within the jurisdiction of the federal courts, since a contrary ruling encourages the government to disappear people.

In short, as much as the administration might want to hold the survivors in military custody, that route is simply not available to it. The government would have to defend the detentions in court, where it would be told in no uncertain terms that it has not established either the legal or factual basis for the detentions. Along the way, the very act of losing the case—that is, of being told by a federal court that the detentions were unlawful and that President was acting far beyond his constitutional authority—would help delegitimize the entire policy, just as the Supreme Court decision in Rasul helped delegitimize the detentions at Guantanamo.

Would the U.S. Prosecute Survivors in Federal Court?

Of course, military custody is not the only option. A number of federal statutes give the United States government the power to interdict alleged drug runners in international waters and prosecute them in federal court. The Coast Guard has had that authority for decades and uses it routinely to seize vessels in international waters, and to arrest the crew and charge them with violations of federal law. If federal prosecutors had probable cause to believe the two survivors were part of a drug smuggling operation—that is, if they had such proof that would warrant a reasonable person in the belief that a crime had been committed—the United States could have brought them into federal court and charged them with violations of the federal criminal law.

Ah, but here’s the rub. Though the criminal law gives the Trump administration the legal authority to detain and prosecute the survivors, the government doesn’t want to invoke the criminal law. It doesn’t want to present facts in open court and subject its evidence to the crucible of adversarial testing. It doesn’t want to pit its case against a well-trained adversary who has adequate time and resources to prepare a defense. It doesn’t want to appear before a neutral federal judge with lifetime tenure, who applies fixed rules of evidence and procedure. It doesn’t want to provide the survivors of this attack with the presumption of innocence, nor is it willing to assume the burden of proving its case to a jury beyond a reasonable doubt. And most importantly, it doesn’t want to communicate to the world that drug smuggling is a problem best handled by the criminal law. In short, even if a federal prosecutor could prove the survivors committed a crime, which I very much doubt, the Trump administration is simply unwilling to subject itself to the restraints imposed by the criminal law. It doesn’t want what we have come to think of as a fair trial.

***

In the end, the administration cannot do what it wants, which is to hold the survivors in military custody without legal process, and will not do what it can, which is to subject itself to the rigors of a federal prosecution. This left it with no good options other than repatriation.

But of course, from the administration’s perspective, this problem goes away if the two had not survived.

Like the Bush administration after 9/11, the Trump administration wants the latitude that it believes comes from being at war. But Trump’s claim is considerably more tenuous; after September 11, Congress authorized President George W. Bush to use military force against al Qaeda and its associated forces, but Trump can claim no comparable authorization. He thinks he doesn’t need it, and that he has the unrestrained power of the strongest strongman, who may do as he likes, when and where he likes it.

From the administration’s perspective, survivors reveal the limits of this monarchical arrogance, and I’m left to fear how many others will be hauled from the waters of the Caribbean.

In the spirit of thoughtful conversation, if you have any reactions to this or any of my essays, feel free to share them with me at jm347@cornell.edu.

Joseph Margulies is a Professor of Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.

]]> 28871 https://verdict.justia.com/2025/10/20/an-update-on-the-mootness-issues-raised-in-little-v-hecox-one-of-the-transgender-athlete-cases-at-the-supreme-court Mon, 20 Oct 2025 04:01:06 +0000 https://verdict.justia.com/?p=28867 Little v. Hecox, which challenges Idaho’s law barring transgender women from participating in women’s collegiate sports. Professors Amar and Mazzone argue that the district court erred in refusing to allow the plaintiff, Lindsay Hecox, to voluntarily dismiss her case after she ceased athletic participation, and they contend that the case is clearly moot under Article III, urging higher courts to recognize this and vacate the Ninth Circuit’s decision accordingly.]]>

There are new developments concerning a high-profile pending Supreme Court case we discussed in a Verdict column a few weeks ago. As we explained, the plaintiff/respondent in the case, Little v. Hecox, in September filed papers that, taken at face value, would seem to show that the case is now moot and the Supreme Court should dismiss it and vacate the ruling below by the U.S. Court of Appeals for the Ninth Circuit. The case involves Lindsay Hecox’s equal protection challenge to Idaho’s Fairness in Women’s Sports Act, which prohibits transgender women from participating in college sports at many of the universities in Idaho. Hecox obtained a preliminary injunction against the Act in the district court, and that ruling was affirmed by the Ninth Circuit, lower courts concluding that Hecox had shown it probable that application of the Act would violate her equal protection rights. The Supreme Court granted the cert. petition filed by Idaho Governor Bradley Little and the other defendants to the lawsuit.

In light of the Court’s ruling last Term in U.S. v. Skrmetti, the Court was widely expected to reverse the Ninth Circuit. But then Hecox told the Court last month that, as a result of illness, family issues and publicity associated with the litigation, as well as her desire to focus on completing her academic graduation requirements, she had “decided to permanently withdraw and refrain from playing any women’s sports at [Boise State University, where she is enrolled] or [at any institution] in Idaho covered by [the Act].” She said she was “firmly committed not to try out for or participate in any school-sponsored women’s sports covered by [the Act].” Consistent with these representations, Hecox filed with the district court a Notice of Voluntary Dismissal under Federal Rule of Civil Procedure 41 to dispose of her entire complaint with prejudice (that is, without holding the door open to reinstituting the lawsuit). In light of that action, she argued to the Supreme Court, her case was currently moot and that (because she had sought dismissal with prejudice) her claims against the defendants could not recur. Therefore, she urged, the Court should vacate the Ninth Circuit’s judgment on mootness grounds and remand with a direction to dismiss the appeal in accordance with United States v. Munsingwear and related caselaw. With that disposition, Hecox stated, the defendants would “suffer no prejudice.”

The Idaho defendants pushed back. They filed a motion in district court seeking to strike Hecox’s Notice to Dismiss on the ground that Hecox had previously agreed to a stay of all “proceedings” in the district court while the case was on review at the Supreme Court. In asking for and obtaining that stay, defendants argued, Hecox had waived her right to dismiss, because a dismissal entailed a “proceeding,” and also that Hecox’s attempt to dismiss should be barred by judicial estoppel because it was inconsistent with her earlier request that the district court do nothing until after the Supreme Court was done with the case. The defendants (as petitioners) also filed in the Supreme Court a response to Hecox’s suggestion of mootness, which we analyzed thoroughly in our previous column.

That was where things stood until last week, when the district court in Idaho granted (somewhat surprisingly to us) the defendants’ motion to strike Hecox’s Notice of Voluntary Dismissal, holding that the previously issued stay prevents Hecox from seeking to dismiss, and that the equities in the case argue against dismissal. We say “surprisingly” because, while we empathize with some of the district court’s concerns, we do not find the district court’s decision and course of action to be supported by careful and sensible reasoning.

To its credit, the district court did acknowledge that under Federal Rule of Civil Procedure 41, “a notice of dismissal . . . is normally self-executing and that ‘[t]here is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play’” (emphasis in original and internal citations omitted). But the district court then qualified this latitude by saying “dismissal [can] be supplanted by other factors” such as “statutory provisions.”

The district court then found an important other (albeit non-statutory) such factor in Hecox’s case to be the “stay of proceedings” mutually requested by the parties. From there, the court “[s]tepp[ed] back” to observe that it had “inherent power to control [its] docket,” and that it “s[aw] no reason suggesting why that power should not apply to dismissal notices—when necessary.” The court next indicated its provisional agreement with the defendants’ argument that judicial estoppel and waiver both applied: “Under the circumstances, it does seem Hecox’s position now is incongruent with her earlier position [that matters should be stayed while the case was at the Supreme Court]. . . . The Court is [also] somewhat persuaded by the idea that Hecox waived her right to file a notice of voluntary dismissal—at least temporarily. . . .[A] party claiming waiver is unavailable ‘bears the responsibility of identifying some affirmative basis for [so] concluding’” (quoting United States v. Mazzanatto, 513 U.S. 196, 204 (1995)). Hecox, according to the district court, had not discharged that responsibility of identifying why waiver should not apply.

Does the district court’s reasoning hold up? We think not. Putting aside the mechanical (and repetitive) quality of the court’s reasoning, the district court never demonstrates appreciation for the big picture against which Hecox’s Notice to Dismiss must be assessed. The common thread connecting all of the district court’s dubious instincts is that in the present case, the Notice of Voluntary Dismissal does not reflect merely a desire to stop litigating, but a change in facts that, if taken as true, moots the case and terminates the Article III power of federal courts over it. Thus, the district court’s “inherent power to control its docket” is entirely beside the point because district courts’ power to control their dockets ends at the point Article III power itself ends; a district court cannot ignore constitutional mootness simply because moot cases complicate docket management. (That is the “reason” the district court asked for, but failed to see, to explain why its docket-control authority should not govern this case.)

In a similar vein, the idea that judicial estoppel prevents a party that earlier represented a ripe case or controversy from later alerting the court to facts indicating no such controversy exists borders on the surreal. Most obviously, a case might settle. It would be exceedingly odd to think both parties would be “estopped” from settling, notifying the court, and bringing an end to litigation simply because they had sought and obtained a stay in proceedings—indeed, as the district court itself conceded, such stays are often entered precisely in order to facilitate settlement negotiations. (More generally, we think a Rule 41 Notice of Voluntary Dismissal is always inconsistent with the prior—if implicit—representation to the court that a plaintiff wants to litigate, and yet Rule 41 dismissals aren’t generally barred by estoppel.)

But what about Hecox’s “waiver” of her right to stop litigating by her agreement to a stay of proceedings? Again, at most such a waiver could prevent Hecox from discontinuing litigation in a dispute that remains ripe within the meaning of Article III. (Imagine Hecox still wants to compete in Idaho collegiate athletics but just doesn’t want to litigate anymore.) But one could never “waive” the right to stop competing athletically—what if Hecox were in a car accident that clearly ended her athletic career?—and if Hecox’s factual representations are to be accepted (more on that below), then her change of athletic (rather than litigious) heart simply moots the case.

Towards the end of its ruling, the district court seems to identify the genuine basis for its decision (above and beyond the specious docket-control, estoppel and waiver notions discussed above): “The State of Idaho has defended this case vigorously for years. It would be fundamentally unfair to abandon the issue now on the eve of a final resolution. . . . A dismissal at this stage without a vacatur of the Ninth Circuit’s related decisions . . . would leave these critical questions [about the legality of Idaho’s law] in limbo (emphasis added).” But as we discussed in our previous column addressing the potential unfairness problems arising from unilateral changes in conduct that can moot a case, the ordinary course for the Supreme Court in a case like Hecox’s would in fact be to vacate the Ninth Circuit ruling. That step would go a long way to preventing the unfairness to Idaho about which the district court worries.

The district court cannot, of course, tell the Ninth Circuit or the Supreme Court what to do, but it can be aware of the Munsingware doctrine by which vacatur is the normal course, and be aware that Hecox asked the Supreme Court to follow this course. (In this regard, we note that the cases on which the district court relied to conclude that Voluntary Dismissal under Rule 41 is not always granted involved instances in which a plaintiff sought to voluntarily dismiss to avoid the preclusive effects of losing in the courts. Hecox, by contrast, seeks to dismiss with prejudice, so that concern too would not seem to be relevant here.)

At the end of its analysis, the district court concluded: “Idaho has secured a writ of certiorari. It has a fair right to have its arguments heard and adjudicated once and for all.” That just isn’t how the grant of the writ works. As we explained in our previous column, Article III requirements continue to apply after certiorari is granted. As frustrating as it might seem, there is no right to a hearing and final judgment that displaces those requirements.

Finally, if the district court really did think the stay that was still in force limited the court’s ability to consider the Voluntary Notice of Dismissal, there were other options available to the judge. In particular, the court could simply have construed the Notice of Dismissal to be a Motion to Amend the Stay, and since mootness would have been the basis of such a request, the court would have had no grounds for denying it, even if the defendants opposed. We should note in this regard that the stay itself was written terribly, saying that the “proceedings in this case are STAYED until the United States Supreme Court finally disposes of the petition for a writ of certiorari. . . and issues a judgment. . . . (emphasis added). Readers will immediately recognize the problem with the phrasing. What if the Supreme Court had denied cert? The High Court would never then have issued any judgment. In that event, would the stay mean the case could never have proceeded in the district court? Of course not; one way or another, the stay would have had to have been lifted or modified, a course of action the court could have undertaken in response to the Rule 41 Notice.

The Supreme Court has not yet taken action on Hecox’s mootness filing before it. It remains possible that the Court won’t care what the district court did or does, and that the Justices will find mootness for the reasons we discussed in the previous column. But it would be nicer, and cleaner, for the district court to do the sensible thing and dismiss with prejudice. That route is, we think, still available by means of a motion of reconsideration. Or a motion to amend or lift the stay, followed by another Rule 41 Notice. Or a prompt correction by the Ninth Circuit. We hope one of these options is pursued.

Follow @prof_amar

Vikram Amar is the Daniel J. Dykstra Endowed Chair and Distinguished Professor of Law at the King Hall UC Davis Law School. Amar returned to UC Davis in 2023 after serving for eight years as the dean and the Iwan Foundation Professor of Law at the University of Illinois, Urbana-Champaign College of Law. Directly before that he was a Professor and (for seven years) the Senior Associate Dean for Academic Affairs at King Hall. Amar has also taught law at (then) Boalt Hall School of Law (UC Berkeley), (then) UC Hastings College of Law, UCLA School of Law, and Northwestern Pritzker School of Law.

Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign and Director of the Illinois Program in Constitutional Theory, History, and Law. His primary field of research and teaching is constitutional law and history and works principally on issues of constitutional structure and institutional design.

]]> 28867 https://verdict.justia.com/2025/10/17/the-four-shields-that-endanger-children Fri, 17 Oct 2025 04:01:59 +0000 https://verdict.justia.com/?p=28863

Child sexual abuse is not rare. It is an epidemic. One in four girls and one in thirteen boys will be victimized before they reach adulthood. For survivors, the consequences are life-long: PTSD, addiction, depression, anxiety, chronic illness, fractured families, and suicide. For society, the costs are staggering, billions of taxpayer dollars annually in medical care, educational interventions, law enforcement, foster care, social services, and lost productivity.

And yet, instead of standing with survivors, our laws have constructed barriers that protect the very institutions that failed children. Four barriers—statutes of limitations, charitable immunity, non-disclosure agreements, and the laws of the U.S. Bankruptcy Code—have become shields wielded by powerful institutions to silence survivors, conceal dangerous predators, and protect reputations and assets. These laws were not designed with child sexual abuse in mind. But in practice, they function as a fortress of secrecy, cover up and impunity.

Shield One: Statutes of Limitations—Justice That Ends Too Soon

Statutes of limitations (SOLs) were created centuries ago to promote fairness, assuming that evidence grows stale, witnesses disappear, and memories fade with time. But child sexual abuse is not like a breach of contract or a car accident case; these are unique and devastating harms against children. Survivors often cannot speak for decades, silenced by trauma, shame, or fear. Many carry their painful shame to their grave.

Under strict SOLs, survivors are told you are too late. The courthouse doors close not because the abuse did not happen, but because the arbitrary time limit has passed. Institutions know this, and they lobby fiercely to keep SOLs short, because every expired clock means fewer lawsuits, and greater coverups.

Many states are beginning to break through this shield of silence with revival laws (often called “window” reforms) that restore survivors’ ability to sue even after the original statute of limitations has expired. The Children’s Justice Campaign at Enough Abuse has documented that many states now have no statutes of limitations for child sexual abuse crimes (or abolished them for certain offenses), and many states have eliminated the SOLs or adopted revival legislation for civil claims. These legislative reversals recognize what survivors have long known: abuse does not respect the clock, and healing may take decades, and for some —a lifetime. The Child Victims Act in New York allowed Virginia Giuffre to file a civil lawsuit against Prince Andrew under its revival law. Giuffre alleged that the abuse was part of Jeffrey Epstein and Ghislaine Maxwell’s trafficking network. Prince Andrew, like many other powerful men, have attempted to distance themselves from the Epstein criminal scandal. Yet the truth keeps rearing its ugly head as recent news of Prince Andrew’s “we are in this together” email has revealed.

The U.S. Congress is looking to incentivize states to make changes to their statutes of limitations with HR 5560, led by the leadership of Representatives Suhas Subramanyam (VA), Maria Salazar (FL) and Brian Fitzpatrick (PA).

Shield Two: Charitable Immunity—Mercy for Institutions, Not Children

Charitable immunity was developed in the 19th century to protect fragile nonprofits like hospitals and orphanages. But today, institutions invoking this shield are often wealthy, with multimillion-dollar assets and insurers. Yet in several states, charitable immunity still bars survivors from recovering damages, no matter how egregious the negligence. Many statutes put an outrageous cap on damages, essentially making it impossible to sue. Massachusetts is notably the very worst, with a $20,000 cap on damages. And recently the Archdiocese of Baltimore invoked charitable immunity during bankruptcy proceedings, asking the court to dismiss claims against it. Survivors condemned the move as outrageous—an attempt to wield both bankruptcy protection and immunity to avoid liability.

When children are harmed, immunity reverses the moral equation—protecting the powerful instead of the vulnerable. Although charitable immunity may have once been a shield of protection for small benevolent organizations, it has now turned into a sword against transparency and justice.

Shield Three: NDAs—Contracts of Silence and Concealment

For those who manage to file suit, another trap often awaits: the non-disclosure agreement (NDA). NDAs were designed to protect trade secrets, formulas and confidential employment material. They are now used as gag orders in abuse cases. Survivors are forced to sign them as conditions of settlement, forbidding them from speaking about their abuse, the predator, or the institution. The consequences are devastating. NDAs hide patterns of misconduct, shield predators, and ensure that communities remain unaware of dangers. They reinforce the same message children first heard from their abusers: “don’t tell, it’s our little secret.”

In Texas and Missouri the legislatures passed “Trey’s Law” making NDAs in child sexual abuse cases void and unenforceable. Trey Carlock was abused as a child at Kanakuk Kamps, a Christian summer camp, by serial predator Pete Newman. Unfortunately, his settlement came with a restrictive NDA that silenced him. That silence came with a heavy price tag of deep emotional pain. Trey died by suicide because the silence was too much to bear. His amazing sister, Elizabeth Carlock Philips, has been leading advocacy efforts to end NDAs for child sexual abuse claims.

Shield Four: The Bankruptcy Code—Limiting Liability

Congress created Chapter 11of the U.S. Bankruptcy Code in the mid-1970s; it was intended to help good-faith businesses get back on their feet through the process of reorganization. But institutions facing mass abuse claims—dioceses, the Boy Scouts, universities—have turned Chapter 11 into a dangerous shield. By declaring bankruptcy, they freeze lawsuits, end vital discovery, force survivors into a trust, and reduce payouts. Discovery is curtailed, perpetrators’ names are often sealed, and survivors’ trauma is reduced to dollar values on a spreadsheet.

Bankruptcy does not just consolidate mass tort claims—it has become an industry. Attorneys on all sides —bankruptcy, insurance, defense and mass tort firms —milk the cow of bankruptcy, extracting millions in fees while survivors wait years for relief and often end up with pennies on the dollar. In the Boy Scouts of America case, for example, legal fees exceeded $100 million, while survivors, who are deemed creditors under this system, were left to divide what remained.

Another dangerous weapon in the arsenal of institutional defense is the misuse of protective orders in the bankruptcy courts. Courts often grant them to shield sensitive documents during litigation, but in sexual abuse cases they hide evidence of systemic wrongdoing. Protective orders have been used to keep internal files, deposition testimony, and investigative records sealed; many contain documents that could reveal prosecutable felonies against children. Instead of being referred to law enforcement, this evidence is buried under the guise of confidentiality. The result is alarming: sexual predators remain free, institutions remain insulated, and survivors are denied both justice and safety.

The Sound of Silence at the Highest Levels

Even beyond these shields, secrecy thrives in our government. The Jeffrey Epstein scandal revealed a network of abuse reaching the highest levels of power and wealth. Yet Congress has failed to release the full Epstein files, keeping names sealed, predators protected, and survivors in the dark. Worse, recently, reports surfaced of White House chatter about a potential pardon for Ghislaine Maxwell, Epstein’s convicted accomplice. The suggestion of leniency and forgiveness for a child sex trafficker is grotesque—a symbol of how power protects itself, even at the expense of children. It is time to eliminate the Shields.

The work ahead is urgent:

End statutes of limitations and pass revival legislation in child sexual abuse cases. End charitable immunity. Ban NDAs that silence survivors. Reform the U.S. Bankruptcy Code. Demand Congress release the Epstein files. Reject special treatment and mercy for traffickers like Ghislaine Maxwell.

Justice demands more than hollow words. Children deserve more than apologies and cover-ups.

Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, is a lawyer, legislative advocate, and law instructor who has been fighting to pass meaningful child sex abuse legislation for over two decades in over thirty jurisdictions.

]]> 28863 https://verdict.justia.com/2025/10/16/the-haze-of-the-warrior-ethos-the-dangers-of-rolling-back-military-protections-against-abuse Thu, 16 Oct 2025 04:01:30 +0000 https://verdict.justia.com/?p=28860

Joining the military is an act of faith in one’s country—an act of faith that the country will use your life well.

–Phil Klay

Secretary of Defense Pete Hegseth recently announced a “full review of the department’s definitions of so-called toxic leadership, bullying, and hazing,” decrying the “weaponiz[ation] and bastardiz[ation of] these terms undercutting commanders and N[on] C[ommissioned] O[fficer]s.” Hegseth also called for overhauling the Inspector General (IG), Equal Opportunity (EO), and Military Equal Opportunity (MEO) processes to “liberate” commanders and proposed changes to how long misconduct allegations remain in personnel files. His stated aim was to “empower leaders to enforce standards without fear of retribution or second-guessing.” While he promised no “nasty” bullying or hazing, he also called for “shark attacks” in basic training—ritualized swarming of new recruits by drill sergeants—and for renewed permission to “put hands on” enlistees. One might imagine the Marine drill instructor from Full Metal Jacket. One wonders how much of the behavior in that movie Secretary Hegseth would disapprove.

In the scheme of recent military developments including troops deployed to American cities, attacks on boats in the Caribbean, firings of top-level military brass including TJAGs and the ensuing sidelining of military attorneys, and so on, hazing might seem like a relatively small matter on which to focus. But this review ought to be understood as part and parcel of the larger project to recast the “warrior ethos” as rooted in physical toughness, conformity to (in my opinion unnecessarily) exclusionary norms, and unquestioning obedience. The review of hazing, bullying, and toxic leadership seems likely to reject or at least de-emphasize ethical and legal restraint and humane leadership. It reinforces stereotypes of brutal leadership like that of Colonel Jessup in A Few Good Men, rather than the importance of restraint needed when dealing with civilians abroad and now at home.

This matters. Hazing is an endemic problem for militaries. One can point to Russia and its extreme abuse of new conscripts in which they “live under the constant threat of violence for failing to comply with limitless orders and demands of [those who have been serving longer]” with extreme physical punishments meted out often collectively. It is no surprise that a military that allows such treatment of its own systematically devalues and dehumanizes the lives of civilians as well. But hazing also affects the forces of Western democracies. To take another extreme example, in 2020, superiors in the Australian Defence force initiated their junior soldiers by directing them to murder Afghani civilians and prisoners. An investigation revealed 39 murders as part of this “blooding” ritual. I hope Secretary Hegseth’s review would not sanction such activities. But even significantly less than the worst hazing can be quite damaging. Other examples that the U.S. military has prohibited based on past problematic practices include blood-pinning (pounding new insignia into the body), branding, tattooing, greasing, forced or withheld drinking or eating, beatings, whippings, physical assault, and the like. If severe enough, screaming and verbal harassment can currently rise to the level of hazing.

While the concerns about the line between illegitimate hazing and bullying and training methods, rituals, and practices helpful to develop an esprit de corps has long bedeviled the U.S. military, the reemergence of this debate at the same time as efforts to expand acceptable deployments at home and use of force abroad make this issue particularly pressing. If implemented with the same lack of care and preordained outcome as the transgender ban, the initiative risks eroding discipline, encouraging cruelty, and weakening the safeguards that protect both service members and the civilians under their authority. This post focuses on the hazing component by providing a brief history of reforms, expressing my concern about leaving Article 93 of the Uniform Code of Military Justice as the main protection against abuses, and offering some suggestions for how a careful review might account for the military’s needs for physical and mental toughness while guarding against physical and mental abuses.

I. A Very Brief History of Anti-Hazing Reform

The U.S. military’s struggle with hazing is long-standing. Hazing issues may have accompanied even the revolutionary forces. Recurring violent initiation rituals with cadets inspired Congress to first criminalize hazing back in 1874. West Point adopted its own anti-hazing policy in 1910 after repeated scandals exposed the brutality of the plebe system. During the 1950s, Congress passed additional anti-hazing provisions, embedding prohibitions in 10 U.S.C. §§ 6964, 4352, and 9352, for the various service academies. Despite legislative and internal regulation, the military’s enforcement of anti-hazing provisions was sporadic, and the climate was often receptive or even encouraging of such behavior. Additional waves of hazing scandals occurred as African American men and women were integrated into service academies and various expanded roles in the military itself. Private Danny Chen’s 2011 suicide, precipitated by relentless racial harassment, forced all the services to revise hazing definitions and the Army to adopt its first explicit bullying policy. The Department of Defense adopted Directive 1304.33 (2000) and Instruction 1020.03 (2020), both of which clarified that hazing and bullying include physical and psychological abuse, with or without ritual elements, when done “without a proper military purpose.” These directives not only provided definitions, but also mean that service members violating them can be prosecuted under Article 92 for failure to follow a lawful general order or regulation.

Thus, over time, a predictable cycle unfolds: scandal, concern, reform by Congress, the relevant service, or both, and then an eventual regression from the high point of enforcement and new norm internalization. Hegseth’s speech is a call for regression, though he might say he does not advocate a return to the worst abuses, but merely to recalibrate reforms that have gone too far. In this section, I explain why I think that is not the case.

II. Why Article 93 Alone Is Not Enough

Even if this review rolled back all of the directives and instructions on hazing, Article 93 on maltreatment as well as other articles criminalizing battery and assault would remain. But while Article 93 is important, I believe it is not enough. When Congress enacted the Uniform Code of Military Justice in the 1950s, it included article 93, which states, “Any person subject to this chapter who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.” Congress did not specifically direct Article 93 at hazing, it can and has been used to prosecute abuses of detainees such as those on the War on Terror and could be used for mistreatment of civilians in an occupation, or anyone else subject to the orders of a serviceperson. While I appreciate the broad scope, the lack of specific focus on hazing and the failure to further define cruelty, oppression, or maltreatment help explain why additional reforms were needed in the 2000s. The training and guidance provided for in hazing specific regulations and orders help bridge that gap, giving everyone—both those in power and those subject to it—a better understanding of what ought not be tolerated.

Moreover, Article 93 probably sets a higher threshold than the directives and instructions on hazing and bullying. I expect Secretary Hegseth would consider that higher threshold as a feature rather than a bug as he finds the current climate to be too restrictive and only wants to prohibit “nasty” hazing or bullying. But remember Article 93 is often narrowly construed. It asks whether the defendant’s behavior satisfies an objective ‘abuse of authority’ test and whether it would reasonably cause physical or mental suffering. United States v. Carson, 57 M.J. 410 (C.A.A.F. 2002) My sense is that at least some, and perhaps much of the verbal degradation, forced physical exertion under humiliating conditions, and psychological manipulation that may not meet the threshold for prosecution under Article 93 might still be punishable under Article 92 based on more explicit anti-hazing or anti-bullying directives. If those directives were repealed or diluted, commanders and prosecutors would lose a crucial enforcement tool. Moreover, an overhaul or elimination of those directives and other related efforts might lead panel members to view what constitutes maltreatment differently as they would be operating in a different climate of tolerance for various activities. Such concerns, of course, are magnified in a setting where the Secretary of Defense is also promising to overhaul the Inspector General (IG), Equal Opportunity (EO), and Military Equal Opportunity (MEO) processes. And lastly, this reliance on Article 93 and elimination of lawful general orders on hazing assumes that “nasty” and borderline permissible hazing is rare and when sufficiently abusive is effectively addressed through prosecutions. Yet each of the prior scandal cycles and ensuing reports suggest that not to be the case. While one or two spectacularly bad cases generated attention, the ensuing scrutiny identified significantly more unreported and uninvestigated instances or even behavior unidentified by the victim as problematic. Moreover, some of the other warning signs such as comprehensive data collection and extensive training might be rolled back as well, making it difficult to fairly assess whether a new policy is creating a more permissive climate for borderline and extreme cases.

III. Suggestions for the Review

As my co-author and I wrote previously, we have serious concerns about the quality of decision-making processes that inform new military policies in this Administration. With that in mind, I suggest three areas for sustained attention during the review process.

First, a fulsome review of studies assessing the empirical evidence as to what kind of training behavior and “self-policing” behavior best builds military identity formation, mental and physical toughness and under what conditions. For instance, RAND’s 2015 study Hazing in the U.S. Armed Forces: Recommendations for Prevention Policy and Practice found at best mixed scholarly evidence for the correlation between the severity of hazing and measures of unit cohesion or combat readiness. Relatedly, is there other behavior from trainers, leaders, and others in authority positions that generates the desired trust, competence and shared purpose without inflicting physical or emotional harm? While anecdotal evidence from war-tested veterans attributes their ability to survive in difficult conflict and detention settings is relevant, more systematic data both from the United States and other militaries should be read, assessed, and accounting for in the decision-making process. I remain open to the possibility that studies support a greater range of activities than currently permitted to count as military necessity, though that is not my current impression.

Second, the review needs to account also for the potential moral and operational costs of a greater tolerance for hazing. Studies link such behaviors to depression, post-traumatic stress disorder, substance abuse, and suicide. Hazing studies, including those of service members. suggest that hazing can create significant mental health issues where none existed before. While Secretary Hegseth might accept such a toll as a necessary cost of doing business, of course, the impact to those victimized ought to count in the calculus. Moreover, witnesses and even perpetrators often suffer moral injury—the psychological distress that arises when one’s actions or environment violate deeply held moral beliefs. When the message is that cruelty and humiliation get the desired results, that imparts a very dangerous lesson to impart on those who will themselves become responsible for the treatment of those reporting to them.

Relatedly, even if some benefits from hazing exist, what impact will they have on recruitment and retention? Will individuals who care about their mental health be deterred from joining or motivated to depart? I am indebted to Jill Maurer for the point that this may be especially likely when the trend for other institutions of higher education, outside the service academies, is to strengthen prohibitions on hazing. Again, Secretary Hegseth might view this as a feature and not a bug, but many such individuals might be exactly the kind of future leaders who would be attentive to the needs of their subordinates and committed to building cohesion in non-abusive ways.

Third, and I thank Dan Mauer for raising this point, the burden ought to be on the reviewers to demonstrate why any changes to existing practices are needed. Simply producing some relevant evidence justifying sharking, hands on enlistees, and other forms of currently prohibited hazing ought not be sufficient. The review needs to make a compelling affirmative case for change rather than simply producing the bare minimum of supporting evidence. Secretary Hegseth’s repeated invocation of the warrior ethos as an alternative to his vision of weak, woke service members does little to actually explain the military’s difficulties in recent conflicts rather than the likelier culprits of politics, international relations, strategic decisions, and the will of the enemy.

Lastly, if new rules are generated, they ought to provide sufficient clarity. Even if I disagree with the future drafters about where lines ought to be drawn, I hope we could all agree that clear guidance about what conflict is impermissible is important. Past cycles show the difficulty in successfully implementing unclear standards. For instance, the Government Accountability Office (GAO) reported in the 1990s that weak and inconsistent definitions of hazing had “contributed to climates permitting abusive behavior.” RAND’s 2015 findings echoed that concern, citing confusion among commanders about what conduct was permissible. Even in the 2020s, scholars note persistent uncertainty in applying policy language to real-world scenarios. Ambiguous rules may usher in even whatever “nasty” hazing and bullying Secretary Hegseth could agree ought to remain unlawful, which would be the worst possible outcome of such a review.

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Professor Wexler writes, teaches and consults in the public international law fields, especially international humanitarian law, international disaster law, and human rights as well as in the anti-discrimination field more generally.

]]> 28860 https://verdict.justia.com/2025/10/15/why-the-supreme-court-should-find-that-candidates-like-those-in-bost-v-illinois-state-board-of-elections-have-article-iii-standing-to-challenge-rules-relating-to-the-ballot-counting-and-other-federal Wed, 15 Oct 2025 04:01:04 +0000 https://verdict.justia.com/?p=28856 Bost v. Illinois State Board of Elections, which addresses whether a candidate has Article III standing to challenge state laws on ballot counting. Professors Amar and Mazzone argue that a candidate likely has standing to challenge election regulations because they have an inherent interest in the clarity of election rules, even if they cannot prove the regulation would change the election's outcome, and they emphasize that resolving these issues is crucial for electoral legitimacy.]]>

Last week the Supreme Court heard oral argument in Bost v. Illinois State Board of Elections, a dispute involving the legality of Illinois statutes that direct state election officials to count ballots in federal elections if the ballots are postmarked on or before Election Day, even if the ballots are delivered to election officials days (up to fourteen) after Election Day. The issue on which the Supreme Court granted review is not the “merits” question of whether Illinois law is preempted by federal statutes that embody the concept of an “Election Day” (an issue we have analyzed in prior columns, here and here, and which we also briefly discuss at the end of this column), but instead a preliminary question of whether the parties who brought suit in Bost had standing under Article III of the Constitution to invoke the power of the federal courts in the first place.

The Bost plaintiffs, who filed suit in the summer of 2022, are three individuals who professed an intent either to run for Congress in November 2022 or to serve as a Presidential Elector representing Illinois in the 2024 presidential election. The lead plaintiff, Michael Bost, is in fact a long-serving (since 2015) Republican member of the House of Representatives from Illinois’s 12th congressional district. The plaintiffs contended, in both the lower courts and the Supreme Court, that their status as candidates in federal contests gave them the distinctive (that is, non-generalized) personal stake in the legality of state election rules (including rules determining which ballots would be counted) required for Article III standing. They sought a declaration that Illinois law permitting the counting of ballots received after Election Day is preempted by federal law, and an injunction prohibiting Illinois from counting ballots that arrive after Election Day.

The lower courts rejected plaintiffs’ standing, largely on the ground that it was “speculative” and “conjectural” that the relatively small number of late-arriving votes that would be counted under the challenged Illinois law (for example, the plaintiffs’ complaint alleges that in 2020, a banner year for mail-in ballots due to COVID-19, about 4% of the state’s six million ballots were mailed in and arrived after Election Day) would “certainly” change the outcome of any of the contests in which plaintiffs said they would be candidates. Bost in particular represents a relatively “safe” Republican district and had beaten his Democratic opponent in the November 2020 general election by around 20 percent. The other two plaintiffs were Republicans who sought to become Presidential Electors from Illinois in 2024, but in Illinois no Republican presidential candidate has been within 10 percent of the Democratic winner in the state since 1988, so no Republican electors have had a decent chance of winning for over 30 years.

The plaintiffs in Bost countered this reasoning (unsuccessfully in the lower courts) by arguing that: (1) it is inappropriate for courts to base decisions regarding standing upon dicey prognostications of who is likely to win or lose an upcoming election; (2) in any event, the margin of victory or loss matters, both because it affects a candidate’s legitimacy and credibility and affects fundraising prospects; and (3), at least at to Bost, having to pay campaign staffers for two extra weeks after Election Day increases a candidate’s pocketbook costs.

After oral argument at the Supreme Court, it appears reasonably likely that a majority of Justices will find that Bost at least had Article III standing to bring his claims. Although the precise contours of the Supreme Court’s ruling cannot be predicted with confidence, the bottom line seems relatively clear. And we think clearly correct. In the space below, we offer some brief analysis as to how the Court should approach the issues raised by Bost, and why it should rule in plaintiffs’ favor.

First, the lower courts’ apparent approach (that Justices Sonia Sotomayor and Ketanji Brown Jackson seemed open to accepting)—that to have standing a candidate must credibly allege that he will certainly lose the election because of the challenged election regulation—would be terrible. For starters, who can predict such things? Polling, even late in a campaign, can be flawed, which means that elections are frequently surprising. On top of that, unforeseen election-related events happen all the time. Even though Bost’s seat seems safe for him (although we do note that he won the general election in 2018 by under 6 points), it is useful to consider what would happen if Bost’s district were similarly (or even more) safe for a Democrat. In that instance had he sued he would have been denied standing by the lower courts on the ground that he was likely to lose in such a way that the questioned law would not affect the outcome. But what if, after such a lawsuit were rejected, the Democratic candidate were to suffer an unfortunate accident and fall into a coma in the days leading up to the election? If the federal courts had already declined to entertain Bost’s claims, and the election ended up being very close because some reliably Democratic voters decided they’d rather have Bost (and a voice in the House) than an empty seat, we would all be in a real bind. Relatedly, a rule requiring plaintiffs to show (or at least allege) that who wins the election will depend on the challenged regulation would force candidates to sue late, rather than early, in the election cycle, but such federal lawsuits filed close to an election would run up against the so-called Purcell barrier (a Supreme Court rule admonishing lower federal courts not to entertain election challenges in the close runup to Election Day), a fact Illinois’s Solicitor General seemed not to fully acknowledge when she tried to answer Justice Brett Kavanaugh’s sensible observation that having courts resolve these kinds of disputes before elections is much better than after an election has been held, when judicial legitimacy is more likely to be strained.

So if a candidate cannot easily bring an action before the election (on the ground that an effect on outcome is speculative and because of Purcell), and cannot easily bring one after the election (because a court would have a hard time undoing the election or invalidating votes that had already been counted, both because such a remedy would be inherently politically difficult and because the voters whose votes were invalidated could plausibly argue that they reasonably relied on Illinois’s statutes and would have mailed their ballots in earlier had they known that was necessary for their votes to count), where would that leave things? One possibility is that the legality of election regulations such as Illinois’s never (or rarely) get resolved by courts, which means that many elections are held and resolved under a cloud of legal/ constitutional doubt and possible illegitimacy. As one of us (Amar) argued in an Illinois Law Review article co-written with Professor Evan Caminker, that result is unacceptable; society needs questions about the legality of election rules resolved definitively more than it needs most legal disputes resolved. It is for that reason that Amar and Caminker argue, especially in light of the Purcell rule (seemingly adopted because last-minute changes in election administration can confuse voters, reduce turnout and upset settled expectations of voters and candidates), that justiciability rules like standing, ripeness, and mootness should be applied particularly flexibly and generously to permit before-the-fact challenges to election regulations. In other words, they argue, election-related cases should be treated exceptionally for justiciability purposes.

And it is a bit surprising that the liberal Justices on the Court (who at oral argument seemed least friendly to Bost’s contentions) should oppose relaxation of justiciability hurdles for plaintiffs in election cases; at least as an historical matter many pre-election challenges were brought to invalidate limitations on the right to vote and have one’s vote counted, the kinds of claims the liberal Justices would seem to embrace. More generally, the liberals on the Court in recent years seem reluctant to do battle over the merits of legal claims—and as we explain below we think Bost’s claims on the merits should lose—and instead spend much of their time focused on non-merits arguments such as the balance of hardships in stay cases and (as in Dobbs) stare decisis. Such matters are not unimportant, but they should not displace attention to the merits of a case when plainly warranted.

Given that a rule denying Bost standing would make little sense, the question becomes: What is the precise ground on which he should win? Bost’s lawyer, Paul Clement, argued for a bright-line rule that candidates for office inherently have particularized interests in the clarity and legality of election rules, and we would be fine (along the lines of the Amar/Caminker article) endorsing such a position. After all, as Mr. Clement argued, candidates always have a distinctive interest not just in whether they win or lose but by how much. Even if, as Justice Amy Barrett suggested at argument, it is hard to know whether a bigger margin of victory helps or hurts fundraising, certainly a larger margin of victory (or a smaller margin of loss) is always relevant to the “mandate” question that bears on political legitimacy and influence. So even if we ignore Bost’s arguments about having to pay staffers for an extra two weeks (since that argument essentially piggybacks on the notion of margin of victory being relevant, else no one would spend money monitoring the late-arriving ballots in an election whose outcome was not in doubt), all candidates do have an inherent interest in wanting to see a higher percentage of all votes cast tallied in their column. And that observation also implicates another interest that candidates have that wasn’t featured extensively in the oral arguments: an interest in being able to calibrate campaign strategy. If late-arriving votes count (or don’t count), that could alter the extent to which a candidate might try to appeal to voters who are likely to mail their ballots in late. (As one of us (Mazzone) has explored, there are key demographic differences between voters who mail back ballots early and late in the election cycle.) The Seventh Circuit dismissed all of this by saying that although Bost and the other plaintiffs contend that counting late-arriving ballots “could decrease . . . their margin of victory, . . . Plaintiffs do not (and cannot) allege that the majority of the votes that will be received and counted after Election Day will break against them, only highlighting the speculative nature of the purported harm” (emphases added). But standing law has never required absolute certainty as to an injury plaintiff seeks to avoid; instead, as the Court said a decade ago in Susan B. Anthony List v. Driehaus (the most important recent justiciability case in the election realm), a “substantial risk that the harm will occur” will suffice. And unless there is a significant likelihood that late-arriving votes would break against Bost, why would he spend money to bring a lawsuit in the first place?

All of that brings us to Justice Elena Kagan’s suggestion at argument that perhaps a candidate shouldn’t have to assert that the election’s ultimate result will turn on the disputed votes but instead should be required to plausibly allege only that the challenged election regulation is reasonably likely to cost the candidate some votes. In theory that approach is different from Mr. Clement’s more absolutist “all candidates have standing” rule, but in practice there is virtually no daylight between the two; as noted above, what candidate is likely to sue in the first place unless there is a reasonable chance that the rule he is challenging will cost him at least some votes?

Illinois’s Solicitor General did point out at argument that, under the approach the lower courts adopted, political parties might be able to challenge laws like Illinois’s even if candidates cannot. Indeed, a Fifth Circuit case, National Republican Committee v. Wetzel, which we have discussed before, reached the merits of a challenge to a Mississippi law that (like Illinois’s) allows ballots to be counted even if they are received after Election Day, concluding under circuit precedent that the Republican National Committee had standing. If, as the Seventh Circuit apparently believes, standing requires a showing that an election outcome is going to be affected by a particular regulation, a political party might have an easier time establishing standing than an individual candidate in Illinois, because the party would have to show only that at the outcome of any single contest within the state would be affected. But there is no guarantee that any contest will in fact turn on a challenged law, and yet vote totals, both for each candidate and for political parties in the aggregate, matter a great deal. (Consider the rhetorical appeal of one party being able to claim more Americans voted for it than the other party.) On top of all this, there is no reason why anyone should have to wait for a party to bring a lawsuit. As Amar and Caminker argue, in the election-legitimacy realm, having more potential plaintiffs is better than having fewer.

But what about the fact that the 2022 and 2024 elections, the ones in which the Bost plaintiffs said they wanted to participate, have already come and gone? In other words, aren’t the plaintiffs’ claims for declaratory and injunctive relief moot since the only elections in which they expressed a stake are already over? Remarkably, no one at argument discussed this possibility, but it is a significant doctrinal issue that the Court definitely should address in its written opinions. We think the “capable of repetition yet evading review” (CORYER) exception to mootness should clearly apply: Bost himself is likely to run for Congress again (even though his complaint never indicates that), so the same issue will probably arise between him and Illinois again, and it will likely be hard for the Supreme Court to resolve that issue before any particular congressional election in which Bost is a candidate has come and gone were he to file another complaint. Moreover and more importantly, as Amar and Caminker point out, when elections are involved, the Supreme Court has (rightly, albeit without explanation) often relaxed the CORYER requirement that the issue involved be capable of repetition as between the same parties, but instead has asked only whether the issue is capable of repetition (involving other parties) more generally. Issues like the one Bost has raised need to be resolved sooner rather than later, preferably before the 2026 congressional election.

In that regard, we note that a cert. petition in the Republican National Committee Fifth Circuit case mentioned above is currently before the Court. We hope the Court grants review, and if it does we hope the Court repudiates the Fifth Circuit ruling that struck down Mississippi’s law. Readers can see our full analysis debunking the Fifth Circuit’s merits reasoning here. Our bottom line is that there is no basis to conclude—and the Fifth Circuit opinion doesn’t provide one—that in designating a national Election Day Congress displaced the power of states to deem ballots that are securely in the U.S. mail system to effectively be in the custody of the state (just as ballots are in the custody of the state when placed in a secure lockbox that is not emptied until the day after Election Day.) What matters for purposes of Congress’s evident interest in finality is that voters make their final choice by or on Election Day, and that such choice is reliably conveyed to election officials. (Nobody contends that all votes must be counted by the end of Election Day.) Marking the ballot and putting it in a secure mail system on Election Day serves that interest in the same way as does voting in person on Election Day at the polls. In both instances, the final choice is made by the date Congress has set. On the merits, the claim the RNC and Bost have made should therefore fail—and better earlier than later.

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Vikram Amar is the Daniel J. Dykstra Endowed Chair and Distinguished Professor of Law at the King Hall UC Davis Law School. Amar returned to UC Davis in 2023 after serving for eight years as the dean and the Iwan Foundation Professor of Law at the University of Illinois, Urbana-Champaign College of Law. Directly before that he was a Professor and (for seven years) the Senior Associate Dean for Academic Affairs at King Hall. Amar has also taught law at (then) Boalt Hall School of Law (UC Berkeley), (then) UC Hastings College of Law, UCLA School of Law, and Northwestern Pritzker School of Law.

Jason Mazzone is the Albert E. Jenner, Jr. Professor of Law at the University of Illinois at Urbana-Champaign and Director of the Illinois Program in Constitutional Theory, History, and Law. His primary field of research and teaching is constitutional law and history and works principally on issues of constitutional structure and institutional design.

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