Author: legalj

The Supreme Court’s Perversion of Property Rights

by Beck Reiferson

Political philosophers have long regarded the right to property as one of man’s most essential rights. John Locke, whose writings were among the most influential on the political thought of America’s Framers, believed the primary purpose of governments is to protect its citizens’ property rights. In his Two Treatises of Government, he argued that the “great and chief end… of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” The Framers agreed that protections of property rights were of paramount importance, as the pervasiveness of precisely such protections throughout the Constitution makes clear. Among the Constitution’s explicit protections of Americans’ property rights is the Fifth Amendment, which says that “private property [shall not] be taken for public use, without just compensation.” Known as the Takings Clause, this clause lays out the proper scope of the federal government’s eminent domain power: it may seize private property, but only if it justly compensates the property-owner and the property will serve a public use. The public use requirement—called the Public Use Clause—is central to Takings Clause jurisprudence. I will argue, however, that through its rulings in Hawaii Housing Authority v. Midkiff and Kelo v. New London, the Supreme Court has whittled away at Americans’ property rights by erroneously contorting the Public Use Clause into a “Public Utility Clause.”

In 1967, Hawaii passed a law to address the fact that only seventy-two private landowners owned almost half of the property in the State. The law transferred legal titles from these landowners to lessees. In Midkiff (1984), the Court unanimously held that this law did not violate the Takings Clause of the Fifth Amendment because the “‘public use’ requirement is… coterminous with the scope of a sovereign’s police powers.” In other words, as long as the government is seizing property to advance the public good, the taking satisfies the Public Use Clause. Justice O’Connor, writing for the Court, put this point bluntly: “The mere fact that property taken outright by eminent domain is transferred… to private beneficiaries does not condemn that taking as having only a private purpose.” Since the law in question could plausibly be said to benefit the public, the Court deemed it constitutionally permissible. 

The Court’s emphasis on the law serving a public purpose has no basis in the text of the Fifth Amendment. The Public Use Clause means exactly what it says: for a taking to be constitutionally valid, the property that is being taken must be made available for the public to use—not just confer some indirect benefit on the public. And for the public to use property, one of two criteria must be met: either the public must have a right to enter the property or the property must be publicly owned. A park, for example, obviously meets the first of these criteria, while a government building meets the second. The privately owned homes at issue in Midkiff, however, met neither of these criteria. Therefore, contrary to the Court’s decision in the case, the Public Use Clause prohibits the actions of the Hawaiian legislature. If the Framers wanted governments to be able to seize private property that would be used in any way to benefit the public, they would have written a Public Utility Clause. Instead, they wrote the Public Use Clause, and “public use” means “public use.”

Kelo v. New London (2005) presented the Court with an opportunity to correct its error in Midkiff. Instead, the Court doubled down, declaring that the City of New London’s transfer of private property from private homeowners to private companies satisfied the Public Use Clause because the City could plausibly argue that the transfer served the public purposes of improving the local economy and raising tax revenues. Just as in Midkiff, the majority in Kelo did not contend that the public would literally use the seized property. Rather, they weighed the merits of the City’s argument that the property transfer would be economically beneficial and decided that the public utility derived from the seizure was enough to satisfy the Public Use Clause. The majority thus again wrongly conflated public use, which the Constitution requires, and public utility, which, by itself, is insufficient to make a government’s exercise of the eminent domain power constitutionally valid. 

The distinction between “use” and “utility” is more than just semantic: the Court’s misguided interpretation of the Public Use Clause has significant implications for the security of Americans’ property rights. By interpreting the Public Use Clause as a Public Utility Clause, the Court has greatly expanded the scope of the government’s eminent domain powers. A government that can only seize private property if either the government itself or the citizenry at large will use that property is a government with a very limited ability to seize private property. Such a government could permissibly seize private property if it planned to turn it into something like a government building, park, highway, or school, but seizing private property just to transfer it to other private owners for their own use would be strictly off-limits. On the other hand, a government that can seize private property as long as its plan for that property can plausibly be said to indirectly benefit the public is a government with a nearly limitless ability to confiscate property. This is particularly true when courts afford legislatures broad discretion to determine what constitutes public utility, as the Supreme Court promised to do in Midkiff. When a government has that much latitude to seize private property, property rights are extremely insecure. For the Court to supply Americans’ property rights with a greater degree of protection—the degree of protection the Framers intended Americans to enjoy—it must interpret the Public Use Clause as a strict requirement that governments can only seize private property if the public or government will actually use the property. The overruling of Midkiff and Kelo is long overdue.

When Two Worlds Collide: Evaluating Free Speech and National Security Claims around Trump’s WeChat Ban

by Nalin Ranjan

Introduction

Immigrants have come a long way from hopelessly striving toward the 20th-century ideal of full assimilation into American society. Descendants of Jewish immigrants, whom many believed could not be trusted, can now proudly take credit for developments in the sciences, politics, medicine, and the arts; blossoming Chinatowns have replaced enclaves that once shied away from any expression of their heritage for fear of persecution; Mexicans whose ancestors worked under poor conditions and compensation in the fields founded the United Farm Workers to ensure their voices were heard. The stories of immigrants who refused to merely conform to the expectations placed upon them are endless. They have long known that the immigrant experience entails keeping close to — and not abandoning — their unique cultures and communities.

It was thus that President Trump’s August 2020 ban on Chinese messaging service WeChat was met with large-scale trepidation amongst the Chinese-American community. For the unfamiliar, WeChat is the world’s third-largest messaging service and by far the most popular means of communication amongst first-generation Chinese immigrants, with nearly three million active daily users in the US. For many, it is the primary — if not only — means of keeping in touch with fellow Chinese immigrants and families back home. However, given its Chinese ownership, the app has been subject to intense scrutiny amid escalating tensions between the two countries. 

Legal action against the ban was swiftly taken, resulting in a preliminary injunction of the original order. And before further arguments were made, the Biden administration walked back the Trump-era restrictions. However, they also made it clear that they would continue probing the issue and that a further ban was not entirely out of the question just yet. In this article, I examine relevant constitutional arguments that may have been made in favor of the ban had further litigation continued. Whether or not the ban stands to constitutional muster will ultimately determine whether it is a legal restriction with unfortunate consequences or a fundamental violation of certain Americans’ right to communicate freely.

Background

President Trump initially issued Executive Order 13943 in August 2020, prohibiting “any transaction that is related to WeChat by any person, or with respect to any property… with Tencent Holdings Ltd [the parent company of WeChat]… or any subsidiary of that entity.” The order outlined seven restrictions — each prohibiting a certain type of transaction with WeChat or its parent company —that together would have immediately rendered WeChat services both useless and illegal to use. In particular, restrictions 1-4 would have crippled WeChat’s technological infrastructure and content-distribution backbone, while restriction 6, which bars “any utilization of the WeChat mobile application’s constituent code, functions, or services,” would have been nothing short of an explicit ban on using WeChat’s services for then-users in the United States. 

Make no mistake: most of the restrictions of the order could only be reasonably challenged in court by Tencent itself.1 But restriction 6, whose target is the American populace rather than a service/network/other technology managed by Tencent, could reasonably be challenged by American WeChat users, as it places an explicit restriction on a place Americans may go to express speech. My analysis hereinafter will focus on restriction 6, because 1) resolving first amendment challenges to restriction 6 entails tackling issues that would arise in challenges to other portions of the ban, and 2) first amendment challenges to restriction 6 most closely echo the concerns of American WeChat users, who are the most important stakeholders in this issue. 

Constitutionally, time, place, or manner (TPM) restrictions are permissible, but they must 1) apply equally to all forms of speech subject to the TPM restriction (i.e. be content-neutral), and 2) pass the test of intermediate scrutiny.2 Given that the ban seeks to impose a broad and sweeping restriction on the use of WeChat, it is clear that it passes the content-neutrality criterion: no particular message substance would be favored over another since all communication on WeChat would be prohibited. Thus, the only — albeit substantial — remaining obstacle that the ban must overcome is the test of intermediate scrutiny, which requires that a TPM restriction 1) serve a significant governmental interest unrelated to speech content, 2) be narrowly tailored, and 3) leave open adequate channels for communication. 

Does there exist a significant government interest that would be served by the ban?

As stated in President Trump’s initial executive order, the central motivation for issuing the ban is to protect national security. (The executive order clarifies that other threats, such as those to foreign policy and the economy, derive from the primary threat to US national security.) The precise definition of “national security” is somewhat elusive, but most would agree with the National Law Review’s characterization, which says that it “encompasses safeguarding the nation’s borders against foreign threats and terrorism… [which, in particular, may include] cyber-crimes, cyber-attacks, and other internet-based crimes.” And like most, we will grant that national security is a significant governmental interest unrelated to the particular content of restricted speech in this case.

Would the ban — as outlined in the original executive order and implemented in the Commerce Secretary’s addendum — prevent some action that gravely endangers US national security? The executive order would answer affirmatively, holding that the relevant action it prevents is the capture of “vast swaths of information from its users, which threatens to allow the Chinese Communist Party access to Americans’ personal and proprietary information.” This conclusion, however, is based on multiple unsound foundations.

First, the characterization of the information WeChat collects as “personal and proprietary” is misleading, if not plainly incorrect. Upon registering, users must agree to a privacy policy that explicitly describes how one’s information will be shared with other subdivisions of Tencent, service providers (middlemen providing services that enable the functioning of the app), third parties with whom the user interacts, advertising partners, and notably, governments/regulatory agencies that request it.  Of course, this finding is wholly unsurprising to the average WeChat user. In addition to the common knowledge that using an online service will expose one’s information to its administrator, there is also a common cultural element at play: many WeChat users, as first-generation Chinese immigrants, are familiar with the authoritative role the CCP takes in regulating the flow of information and communication. A sentiment of an anonymous user on tech forum SlashDot sums up the typical WeChat user’s attitudes on this issue: “WeChat is a great app, and I use it all the time. But I have never considered it to be private.” Ultimately, users are knowingly consenting to share their data with WeChat and its wide range of affiliates, so the suggestion that users’ “personal and proprietary” information will land into the hands of an actor that shouldn’t have access to it — including the CCP — is both legally and empirically incorrect. 

Second, the mere collection of “vast swaths of data” on consenting American users is not in itself a threat to national security, even if this data lands into the hands of presumed US adversaries like the CCP. It is certainly true that WeChat follows the typical social media company strategy of collecting a wide range of identifying information and day-to-day activity data from users that may compromise their individual privacy, but it is difficult to see how such perfunctory data could be used to threaten US national security as a whole. Knowledge of what certain consenting individuals are doing, where they are going, and what some of their preferences are seldom, if ever, provides the edge needed to engineer large-scale attacks on US citizens or institutions. And the US government has implicitly recognized this fact: the combined revenue of the data analytics and online advertising market — both heavily reliant on collection and exchange of highly specific personalized data — totaled almost $100 billion in 2020 with no indication of slowing down. These markets, which feature thousands of companies of varying sizes, are officially sanctioned — and even participated in — by the US government. Were the possession of terabytes of perfunctory data truly a prospect with imminent national security concerns, history suggests governmental oversight would be swift and uncompromising — or at the very least, more stringent than the lax attitude currently adopted that treats personal data as little more than an arbitrary, freely exchangeable good.3 

In short, there is little evidence to suggest that a blanket ban on the use of WeChat would significantly remedy any existing national security vulnerability.

Would the WeChat ban leave open adequate channels for communication?

As established in Ward v. Rock of Racism, “the basic test for gauging the sufficiency of alternative channels is whether the speaker is afforded a forum that is accessible and where the intended audience is expected to pass.” In other words, the subject of a TPM speech restriction must be afforded another venue in which the intended audience may reasonably participate in a similar capacity. Appellate court precedent has established this requirement as one admitting a strict interpretation. For example, refusal to grant a permit to the Million Youth March sufficiently close to the movement’s desired location in Harlem was ruled in 1998 to be a First Amendment violation, because the city’s proposed relocation to Randall’s Island would have “adversely affect[ed] plaintiff’s ability to reach its target audience” by “limit[ing] [the movement’s] reach to [only] those who make an affirmative decision to travel to [Randall’s Island].” 

The alternatives afforded to WeChat users, unfortunately, are quite worse than a two-mile walk eastward to Randall’s Island. As Peng notes in her testimony, the only available alternatives to contact relatives abroad are costly and provide vastly inferior functionality:

“Without WeChat, I will have to go back to the old way of buying calling cards and making expensive international calls. I will also not be able to reach all of my family members with one click. I will not be able to look at them through video calls with my own eyes. Nor can they see that I am well with their own eyes.” 

For the unfamiliar, the reason that Peng would have to go back to calling cards is that most apps that seem like viable alternatives (WhatsApp, Snapchat, Messenger, Line, etc.) are blocked by the Great Chinese Firewall. 

And for those whose only proficient language is Mandarin (or another dialect spoken in China),4 the lack of other Chinese-friendly messaging apps would all but require attaining sufficient proficiency in another language. Even if we discount the many cases where this is effectively impossible (e.g., for senior citizens), such a requirement would fundamentally run contrary to the American notion of free expression. Learning a particular language should never be an explicit prerequisite to communicate, nor is the government within its right to revoke access to platforms so as to implicitly institute this as a requirement.

Conclusion

For now, Chinese-American WeChat users can breathe a sigh of relief. Yet it is clear that the issue is far from resolved, as the Biden Administration has indicated that a subsequent restriction is well within the realm of possibility. However, amid ever-changing political headwinds, American WeChat users can cling steadfastly to the legal rock that is intermediate scrutiny. Indeed, striking down the Trump-era ban would have only required that one intermediate scrutiny criterion be unmet. That the ban spectacularly fails multiple criteria is a serious indication that subsequent administrations will need to dedicate genuine, good-faith effort to crafting a more measured response that does not irreparably sever certain Americans’ access to their most significant outlet of communication.

1 Foreign entities may bring suit in US courts; see Servicios Azucareros v. John Deere.

2 First developed in Craig v. Boren.

3 See this article, for example. Most data exchanged over US networks is unregulated. That is, most companies are not under any obligation not to share your data with third parties, who can in turn do as they wish with that data (including selling it again). And none of them are obligated to tell you what they do with your data.

4 No publicly available sources have an estimate on the true number of English-deficient WeChat users in the United States. But an extremely conservative estimate would likely lie in the hundred-thousands.

The Problems with Legislative Overrides of Judicial Rulings

by Beck Reiferson and Benjamin Edelson

In April 2021, President Joe Biden signed an executive order establishing the ‘Presidential Commission on the Supreme Court of the United States,’ a commission of legal scholars formed to discuss potential reforms to the Supreme Court. In October of that same year, the Commission released discussion materials prepared in advance of its fourth meeting. These materials outline a variety of proposed reforms to modify “the Court’s role in the constitutional system.”1 One reform that the Commission considers is the establishment of “legislative overrides of Supreme Court decisions.”2 The purpose of such overrides would be “to minimize judicial supremacy—i.e., the system under which the Court is the final and authoritative arbiter of the constitutionality of statutes or executive action.”3 These concerns about the Court wielding quasi-legislative power are valid. We believe, however, that legislative overrides are a poor solution for two important reasons: (1) they would undermine the principle of checks and balances, which is central to the functioning of our constitutional system, and (2) they would be contrary to one of the key purposes of the Court—to keep some fundamental issues (e.g. the right to vote, the free exercise of religion, etc.) out of the democratic sphere and safe from the influence of political majorities.

The system of checks and balances is one of the most important features of the United States’ constitutional system. In the words of James Madison, the purpose of checks and balances is to keep the branches of government “in their proper places.”4 Congress’s gaining the power to override judicial decisions would threaten the proper functioning of this system. For one, the Court would lose its ability to prevent the legislature from passing unconstitutional laws, since the legislature could simply overrule any judicial ruling that invalidated a recently passed law. There would be no reason to expect Congress to ever invalidate a law it had just passed: if a congressperson who voted in favor of a law were to then vote to uphold the Court’s decision that the law did not pass constitutional muster, it would amount to an admission that they voted for an unconstitutional law. The vote to overrule the Court, then, would most likely be simply a rehash of the vote to pass the bill. With a simple majority, Congress could exceed any constitutional limits put in place to restrain it, thereby defeating the purpose of imposing any restrictions upon Congressional authority at all. In an effort to combat judicial supremacy, a system of legislative overrides would result in judicial impotence: a judiciary incapable of checking a legislative branch that would instead be left to check itself.

The severity of these problems would be reduced if legislative overrides required a supermajority, rather than a simple majority of half of each legislative chamber. (The Commission’s document does not specify what the necessary voting threshold would be.) This, however, would then become redundant with the amendment process, which requires a two-thirds majority of both chambers of Congress. So if legislative overrides were to be meaningfully distinct from the existing amendment process, they would have to require something less than a supermajority—and we would run into the same issues described above.

One could argue that legislative overrides would actually reinforce the system of checks and balances by imposing a check upon the judicial branch. We do not find this very plausible. It is not the purpose of a check or balance to render the checked or balanced branch too weak to properly function. The purpose of checks and balances is to ensure that no branch exceeds its constitutional limits, not to prevent one branch from fulfilling its role in the constitutional system while letting another branch enjoy carte blanche.

Another of the Commission’s worries is that in interpreting the Constitution, the Court wields too much power. Giving a democratically elected branch the final say on issues of constitutionality, it thinks, would be more in line with the ideals underlying our system of government. The “chief aim” of legislative overrides, the Commission writes, “is to allocate power away from the Supreme Court and toward the elected branches…the Supreme Court exercises excessive power over the resolution of major social, political, and cultural decisions – decisions that would be better resolved through the democratic process” (p. 25). As expressed earlier, we are very sympathetic to these concerns. But we think questions of hermeneutics – and the controversies that arise for the Court boil down to debates about interpretation, not normativity – are not ones that are best resolved democratically. Leave normativity to the people; let them decide what things they value as a society. But let a separate, highly qualified panel deal with the issue of how to interpret complicated, often vague texts. Conflating these two distinct tasks into a common enterprise will only lead to each being performed less effectively and correctly.

The Court is a check on democracy, an (ideally) independent body that reviews the legislature’s acts and determines whether or not it meets the acceptable standards of law as previously set out by the people themselves. This seems to us to be the point of a Bill of Rights in the first place. Deciding which rights are so basic and valuable as to merit their removal from the democratic sphere is up to the people’s delegates. The legislature has expanded and shrunk the list from time to time via constitutional amendment. There is definitely value in designating some rights as ‘off-limits’ like this: it prevents the government from acting poorly towards groups that are underrepresented in the legislature. Who should determine whether or not Congress has violated these ‘rules of the legislative game’? An extra-legislative body, one intimately familiar with the rules. As argued above, it would be pointless at best and dangerous at worst for this body to be the legislature itself, since the legislature obviously has a vested interest in a given law’s passage.

We are not sure how best to prevent a supposedly independent Court from abusing its considerable power, though. The best fix, we think, would be for Justices to interpret the Constitution and statutes as tightly as they can, with as little room for ambiguity or creativity as possible. This, however, gets us into other hermeneutical controversies that we do not have the space to address. In any event, for the above reasons, it seems to us that granting the legislative branch itself the power to override judicial decisions would be one of the worst solutions to this problem—a solution that is fundamentally contrary to the purpose of the Court itself.

1 https://www.whitehouse.gov/wp-content/uploads/2021/10/COURTS-ROLE.pdf, pg. 1.

2 See footnote 1, pg. 25.

3 Ibid.

4 James Madison, “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments” in The Federalist Papers.

El Salvador’s Bitcoin Law: Contemporary Implications of Forced Tender Legislation

by Cecilia Quirk

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1 Prin.L.J.F. 48

Background

From the invention of paper money in 7th century China to the FDR administration’s decision to drop the gold standard in 1933, money has constantly evolved in unexpected, even unsettling ways. Just as a world without paper money, or even without credit cards, seems unimaginable today, it’s no wonder that the future of money lies in some new technology, namely Bitcoin. First minted in 2009, Bitcoin has soared to new popularity in the past couple of years. This monetary evolution, even revolution, was made possible due to advancements in technology and shifts in consumer perspective and has inspired regulatory and legislative innovations which pose interesting and novel legal challenges dealing with freedom of exchange and contract. A fascinating backdrop for these challenges lies in the context of El Salvador’s Bitcoin Law. 

On September 7, 2021, El Salvador became the first country to adopt Bitcoin as legal tender with the passage of that nation’s so-called “Bitcoin Law”, which placed Bitcoin alongside the U.S. dollar as El Salvador’s official currency. (An important distinction, however, is that while both the U.S. dollar and Bitcoin are legal tender in El Salvador, only Bitcoin is forced legal tender). This meant that all Salvadoran businesses must accept Bitcoin as a means of transaction, taxes are payable in Bitcoin, and the government can now distribute subsidies in Bitcoin. To accompany this law, El Salvador rolled out a supporting network of 200 Bitcoin ATMs, introduced a new digital bitcoin wallet app called Chivo, and distributed $30 worth of Bitcoin to every citizen to kickstart the change. 

Pros and Cons

Proponents of the new Bitcoin Law in El Salvador, such as President Nayib Bukele, say that Bitcoin will give the 70% of Salvadorans without bank accounts access to financial services, and help “reduce the fees they pay to send and receive remittances.” One in every four Salvadorans live abroad, and with the exception of Haiti, El Salvador is the country most reliant on remittances in the Western Hemisphere, accounting for almost three of every 10 dollars, or nearly $6 billion, in El Salvador’s economy. In fact, many advocate for the use of crypto in developing countries, arguing that the prevailing global financial system serves wealthy countries and individuals best. 

On the other hand, less developed economies are more vulnerable to Bitcoin’s notorious volatility and lack of regulation by a central bank. Soon after El Salvador announced that they would be adopting Bitcoin as forced legal tender, the International Monetary Fund (IMF) paused negotiations for the 1.3 billion dollar assistance package to tackle the country’s debt and allow for sustainable public spending taking issue with lack of transparency and environmental costs of cryptocurrency. In a reactionary blog post to El Salvador’s consideration of making Bitcoin a legal tender, IMF cited legal issues including the lack of wide accessibility, a necessary component of a legal tender, due to inconsistent internet access and technological inequities. Just over 50% of El Salvador’s population has internet access, making a legal tender, especially a forced tender, that relies on internet access untenable for much of the population and calling into question who politicians and legislators really had in mind when developing the Bitcoin Law. Within the country, there is a notable lack of support for the law, with a poll by the Universidad Centroamericana Jose Simeon Canas finding that 67.9% of Salvadorans were not in support of the decision to adopt Bitcoin as a legal tender due to both a lack of trust in Bitcoin (8 out of 10 respondents) and a lack of understanding of how to use the new technology (9 out of 10 respondents). 

Article 7 of El Salvador’s Bitcoin Law

Despite the notable complexity, both technologically and legally, of adopting Bitcoin as a forced legal tender, El Salvador’s Bitcoin Law, and Article 7 which enforces the legal tender, is incredibly brief. According to Article 7, “Every economic agent must accept bitcoin as payment when offered to him by whoever acquires a good or service.” In other words, paying with and accepting Bitcoin is not only legal, but its acceptance as payment is compulsory. Policy aside, experts have also argued that forced tender, such as that prescribed by Article 7, is legally unsound as it contradicts the freedom of exchange and contract. Dror Goldberg, an expert on the history of compulsory tender laws, expands upon this claiming that “As [forced tender legislation’s] practical implication has typically been to force producers to part with all their produce for paper, it can also be a severe violation of property rights. It is a rule that penalizes passive behavior. It is, or should be, a controversial rule, unlike a rule prohibiting counterfeiting of money.” Even the U.S. dollar is not a forced tender in El Salvador. Most countries, including the United States, conscious of forced tenders’ restriction on personal freedoms do not have forced tender laws (ex. “Credit only” businesses may refuse to accept cash without legal repercussions). 

Historical Perspective

While forced tender legislation may seem like a new issue, or at least newly relevant, it in fact has a rich and relevant history. In his 2016 article Forced money: legal development of a criminal economic rule, Goldberg argues that forced tender legislation not only infringes upon the freedom of exchange and contract but also represents economic authoritarianism. Tracing the transportation and translation of legal tender laws from Revolutionary to Napoleonic France, the Ottoman Empire, British Cyprus, British Palestine, and Israel, Goldberg concludes that forced legal tender was able to take hold in these instances due to the presence of struggling economies, weak governments, and legislators in favor of economic authoritarianism. As the COVID-19 Pandemic has reversed El Salvador’s previously declining inflation rates, economic growth and direct foreign investment remain chronically low, and weak government institutions have proven to be especially vulnerable to corruption, the country certainly fits the trends Goldberg identified in his research. Interestingly, and unanticipated by Goldberg’s historically-oriented analysis, Bitcoin is a symbol not of the state itself but of its future, of the inter- or even a-national tech hub that President Bukele and legislators hope El Salvador will become. Thus, the “symbolic implications on sovereignty” that Goldberg notes are characteristic of forced tender laws are even more devious in the case of El Salvador where Bitcoin is not stamped with the visages of current or previous Heads of State but is rather the digital face of a disembodied blockchain network. Symbolically then, if Bitcoin’s notorious volatility leads to a drastic downturn in value, it may be shoved off as a failure of technology rather than the laws and leadership of El Salvador. As Goldberg states, “Accepting the state’s money against one’s will is a symbolic obedience to the state,” yet in the case of El Salvador, accepting Bitcoin as forced tender is an obedience to a technological future that as of now, and without the help of the government, will leave many Salvadorans behind. 

Domestic and Foreign Response

The initial rollout of Bitcoin in El Salvador was far from smooth, complete with thousands taking to the streets of El Salvador to protest and technical issues making the Chivo wallet app unusable and its cash inaccessible. There was even a 10% fall in the value of Bitcoin compared to the U.S. dollar on the day it was made legal tender in the country—and has since seen more declines in its value. While Bukele is selling the rollout as a success, claiming that a third of Salvadorans are using Chivo, it is possible that a majority of that demographic is simply using the app for the $30 incentive from the government. In fact, according to The Financial Times, one of El Salvador’s largest banks reported that Bitcoin constituted less than 0.0001% of its daily transactions in early September. Other media outlets also noted excessively long lines at ATMs with people rushing to convert their Bitcoin to more trusted cash.  

Despite the general lack of popularity and ease of use for the Salvadoran public, El Salvador has projected an Insta-worthy image of technological advancement to appeal to young entrepreneurs. TIME describes a sleek launch party where primarily English-speaking crypto fans and social media influencers, even YouTuber Logan Paul, celebrated the law. Bukele, apparently, wants these festivities to last and has promised permanent residency to those who spend three Bitcoin (about $125,000) in the country. Bukele has also pointed out that the legal tender status of Bitcoin, rather than simply an investment asset, in El Salvador allows foreigners moving to El Salvador to avoid the capital gains tax on any profits made as a result of Bitcoin’s value fluctuations. In a tweet of about the same length as Article 7 itself, he further advertises “Great weather, world class surfing beaches, beach front properties for sale” as reasons that crypto entrepreneurs should move to El Salvador. Given the subsidization by the government and foreign facing nature of the incentives, the adoption of Bitcoin as forced tender seems more like a get-rich-quick economy-boosting gambit than a true attempt to systematically improve the lives and financial well being of El Salvadoran citizens. This is dangerous as, while it’s uncertain if the average El Salvadoran citizen will benefit as much as the tech-savvy international, forced tender ensures they will bear the brunt of the risk regardless. 

The IMF and more importantly the majority of El Salvadoran citizens aren’t the only ones discontent with the Bitcoin Law. Notably, the deputy of the leading opposition party in El Salvador, Farabundo Marti National Liberation Front (FMLN), has filed a suit regarding the constitutionality of the Bitcoin Law. Even some crypto enthusiasts take issue with Bitcoin as legal tender, not necessarily because it undermines the rights of citizens but more so because it arguably undermines the legitimacy of cryptocurrency in general. Cryptocurrency in its decentralized state was created exactly to exist outside of government controls so its adoption and potential regulation by governments such as El Salvador seems to defeat the purpose. While not directly related to the Bitcoin Law, the U.S. recently released a memo expressing concern over the September 3rd decision “which authorized immediate presidential re-election in contravention of the Salvadoran constitution.” This decision seems to confirm the authoritarian trend in El Salvador evident in economic authoritarianism of forced tender and Article 7. The adoption of Bitcoin as legal tender, which some fear will soon completely replace the U.S. dollar, could also reduce the potential effect of U.S. economic sanctions in the case of future more authoritarian decisions. 

Conclusion

As the potential for more regulation over and integration of Bitcoin into the mainstream U.S. economy looms large, other countries may prove to be important case studies pertaining to the feasibility and legality of the transition to digital dollars. While countries such as China have notably increased regulations before declaring all crypto transactions illegal, other countries, or at least their leadership as seen in the case of El Salvador, have embraced the crypto movement. Although the concerns arising from Bitcoin as forced legal tender should extend to its role in El Salvador and certainly not be limited to the potential impact on our own country, Goldberg’s observation that “The young United States knew forced money laws from its own Revolution, but continuing it in peace was incompatible with the values of a free-market democracy” should no longer be taken for granted.

The Gender Dichotomy: How Sharia Law in the Seventh Century Granted Women Legal Empowerment

by Noura Shoukfeh

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1 Prin.L.J.F. 44

The world’s youngest major religion, Islam, was established in the seventh century when the Prophet Muhammad amassed a following dedicated to the revelations he recieved in the Qur’an. The growth of Islam in the decades after Muhammad’s death, combined with the widespread need to implement a coherent ethical account of Islamic actions resulted in the development of an legal system known as Sharia law.

The Sharia system is based on three central components: the Quran (the central sacred text of Islam), Sunnah (the Prophet’s actions and non-Quranic statements), and fiqh (logic). Islamic law and practice stood in contrast to many of the practices of the surrounding Arabian tribes, particularly with regard to the roles and rights of individuals based on their gender. Notions of gender equity in Islamic law have vastly differed between academics and across time periods, however, many traditional and modern Islamic scholars argue that the way in which Sharia law was used in court precipitated considerable strides in the advancement of women’s rights, levelling the legal playing field between the two genders in the seventh century. Rights regarding inheritance, marriage and divorce, and the social classification of women, are three of the most debated spheres of Islamic law, both within dialogues of contemporary and traditional jurisdiction in terms of exemplifying the progression of women’s rights. 

Atlaq and Mahr

Under the Quran, both men and women can petition for atlaq (divorce), and women do not need a specific reason to file for divorce (such as adultery) — the marriage having broken down is itself a plausible cause for divorce according to fuqaha (Islamic judges). In the seventh century, this right was not experienced by women across the world; in fact, the enactment of divorce by a woman was perceived as an uncommon act, and in many regions disallowed in court. For context, in England, women gained the right to divorce only in the nineteenth century under the Matrimonial Causes Act of 1857,– upon colonizing the Ottoman Empire in the nineteenth century, the British discovered “Muslim women had already had the right to divorce for a thousand years”. 

Although physical or mental neglect or abuse was not a prerequisite for a divorce to pass through the courts, the ability to divorce was particularly beneficial for Muslim women as it allowed them to leave marriages in which they were being improperly treated. However, it is important to note the distinction between the cases for divorce by men and women — the husband could divorce without cause, but the wife had to have the base reason of “incompatibility” for the initiation of a divorce. This distinction between the preconditions for men and women points to a separation in rights between genders. Nevertheless, in comparing the rights of Muslim women to non-Muslim women in the context of the 600s, the right for Muslim women to instigate a divorce was a significantly more progressive right than those extended to their non-Muslim counterparts in other regions of the world.  

Before the topic of divorce entered the conversation, however, there was an inchoate concept known as “mahr” which established a “wife as a contracting party in her own right to her own marriage”. There are different legal interpretations of what the mahr can be or is meant to be, but generally, it is recognized as a “gift or contribution made by the husband-to-be to his wife-to-be, for her exclusive property, as a mark of respect for the bride, and as recognition of her independence”. It is similar in concept to a dowry which is prevalent in some Middle Eastern and Southeast Asian cultures, except, here, the female is receiving the gift or the “mahr” instead of the male. The two are also distinct in the fact that the dowry is used by the husband to take care of his wife, while the mahr consists of property and assets solely under the wife’s discretion. This early concept not only allowed a woman to have negotiating power within her marriage, but also served as a way to financially protect her in the case of the dissolution of the marriage; rights many women across other parts of the world did not enjoy. 

Inheritance 

In the pre-Islamic era, inheritance in the central Arabian region occurred on the basis of the patriarchal “principle of proximity,” in which wealth and estates were passed along the male lineage of the family, starting with immediate members and moving distally across family relations. The practice of gender-based inheritance put women at an immediate economic and social disadvantage as they would not have personal means to support themselves, and were thereby forced to rely on brothers, fathers, husbands, and other male relatives to provide and care for them. The adoption of Islam in the legal systems of the Hejaz, Najd, and Eastern Arabian regions marked the beginning of a new system of inheritance in which women were entitled to a share of viz (inheritance). The transmission of property and assets is complex and highly situationally varied in Islam, but the main difference between pre-Islamic and Islamic law is that under the Islamic rubric, daughters were able to receive an inheritance if a parental figure passed away. 

Now, some modernist non-Islamic scholars nevertheless perceive the Islamic law’s bearing on  inheritance as limiting for women, given that daughters receive one-half of the share of inheritance that their brothers receive. This is justified in the Qur’an through an explanation of different expectations of men and women based on their gender. Critically, the son receives twice the amount of inheritance, as under Sharia law it is required that men utilize their received finances to take care of and financially support the women of the family, including but not limited to his sister. Women, comparatively, are not under any legal obligation to employ their monetary assets for the benefit of the family. Thus, a woman’s entitlement to viz created a structure where women do not have to rely on their male family members, and provided them with financial sustainability, a luxury that women in non-Islamic Arabian tribes did not get to experience. 

Social Status

The social classification of people is the basis of individuals’ treatment and the premise for the privileges people have access to under their respective legal systems. The non-Muslim Bedouin tribes dominating the Arabian Peninsula in the sixth and seventh centuries had rigid hierarchical social structures in which males were perceived as superior to women. Women had severely restricted rights and “were often considered property to be inherited or seized in a tribal conflict.” The reduction of women to “property” eradicated the legal rights of women, as under the law, they were not seen as individuals with rights but rather property that could be obtained. Under Islamic law, however, spiritual equality is granted to both men and women uniformly and without restriction, and as a result, placed women in an advantageous social position relative to the jahiliyyah (pre-Islamic) period’s treatment of women. Islamic law does take into account the physical and psychological differences between men and women, but in terms of many social roles, women and men are on equal footing. In this context, men and women are viewed as equals by God, and the only way for persons to be seen as above one another is through their enactment of deen (good deeds). Under this legal categorization of women as individuals with human rights rather than possessions of men, women were enabled to work, encouraged to receive an education, were capable of proprietorship, among other capabilities in the seventh and eighth centuries. The delineation of the woman’s position and standing within the Quran thus granted them abilities to utilize which non-Islamic women could not engage in due to social stratification within their respective communities. 

Conclusion

In the context of its time and even in modern perception, Islamic law granted women followers innumerable human rights recognized under the law and addressed many of the inequalities women had been facing as a result of living in a structurally patriarchal society in the seventh century. The division of viz created monetary security for women, while the setup of mahr protected a woman’s finances prior to the initiation of a marriage. The request for divorce being accessible to women resulted in safety nets for women and the establishment of relative gender equity under the law in terms of social status established the fundamental access women have to their guaranteed rights outlined in the Quran. Whether specific Islamic societies actually enforced the rights entitled to women in court is a question to be debated– and is an issue highly prevalent in many modern Muslim countries with governmental enactment of Sharia as the law of the land. Nonetheless, in theory, the structural dynamics of Islamic law and the rights provided by it allowed Muslim women to enjoy many privileges typically experienced by men in the seventh century and creates a system in which women are meant to function independently of men. 

The Forgotten Voices: Power Imbalances in Guatemalan Investor-State Dispute Settlements

by Ava Peters

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1 Prin.L.J.F. 39

On June 13, 2012, Yolanda Oquelii, leader of the La Puya Peaceful Resitance movement in Southern Guatemala, became the subject of an assassination attempt. She was targeted for starting a non-violent protest, together with many other brave women and men from her community, against a gold mining operation near their homes. They led a sit-in at the “El Tambor ” mine to protect their land from the extreme social and environmental degradation caused by exploitative practices carried out by US-based company Kappes, Cassiday & Associates (KCA). Their practices have affected air quality, as well as flora, fauna, top soil and the available quantity of water for local residents. Ever since, community members have continued their sit-in to keep vigil around the clock in the face of violent police harassment, anti-riot intervention and various legal challenges. Eventually, in 2016, their persistent protest triggered a formal lawsuit, setting off a chain reaction of cases which escalated through the Guatemalan court system. 

In 2014, the Guatemalan NGO Centre de Acción Legal, Ambiental y Social de Guatemala (CALAS) filed a case against the Ministry of Energy and Mines (MEM) contending that “Exmingua”, the Guatemalan subsidiary of KCA, did not hold a valid operating permit based on its failure to carry out community consultations required under Guatemalan law and ILO Convention 169. KCA contended that this claim was ‘meritless’ and questioned whether there was any Guatemalan law requiring the implementation of ILO 169 at the time when the mine was constructed.  However, in November 2015, the Guatemalan Supreme Court held in favour of CALAS and issued a final decision in 2016 requiring the suspension of mining activities at El Tambor. But just as the valiant efforts of La Puya seemed successful, KCA launched a counterattack, filing an ISDS case against the state of Guatemala claiming damages of $300 million.

What are ISDS Cases? 

ISDS––or investor-state dispute settlement––cases are legal challenges that allow foreign investors to resolve disputes with the government of the country in which their investment was made. They are based on legislation found in International Investment Treaties between states which typically include substantive protections and obligations that protect the economic rights of the investors. 

The international treaty relied upon in the case of Guatemala was the DR-CAFTA (Dominican Republic-Central American Free Trade Agreement). KCA argued that Guatemala was in breach of the international investor agreement terms that ensured ‘fair and equitable treatment, a minimum standard of treatment, indirect expropriation, and full protection and security.’ They claimed that the ongoing protests illegally blocked the entrance to the mine sites, preventing Exmingua from “using and enjoying” its exploration license. In addition, they argued that they were “arbitrarily and unlawfully” harmed by the MEM’s suspension of the export certificate. They calculated that they were deprived of the value[h] of the El Tambor project, amounting to $150 million, and the Santa Margarita project (of at least the same, if not greater value). Additionally, they allege that they have suffered a loss of $500,000 when they prohibited the exporting concentrate shipments. 

KCA martialled a convincing argument in the eyes of arbitrators: it is their gold mine, but the case fails to incorporate the struggles of those involved: it is also a gold mine responsible for numerous abuses against local communities, posing health and environmental risks to Guatemalan citizens. Local communities have faced violence, repression, and criminalization, whilst background forces continue to deplete the region’s natural resources. It’s an interesting consideration to make given that these claims aren’t rooted in empirical evidence. Considering this, should these facts be considered in the ISDS case? Past cases involving the DR-CAFTA suggest otherwise. Guatemala faced another claim arising out of an investment in a Guatemalan electricity distribution company by the U.S. investor Teco Guatemala Holdings LLC––a case that was decided in favor of the investor. Similar to the KCA case, Teco claimed Guatemala breached the ‘fair and equitable treatment / minimum standard of treatment including denial of justice claims’ under the IIA. The ruling emphasized the distinct power asymmetry in ISDS cases: the tribunal reasoned purely on the basis of the treaty, making no effort to acknowledge the stake held by third parties. 

Problems with ISDS

While particularly problematic, the Guatemalan case is not unique. Hundreds of ISDS cases are still pending, forcing us to question the effectiveness of the system and the millions of communities left waiting for their fate to be determined by a system pitted against them. 

Arguably, the most pressing flaw of the ISDS system is that it tends to cause a “chilling effect” on the regulatory system: a situation in which the threat of an investor’s potential claims leads to governmental reluctance to adopt policies out of fear of being sued by huge conglomerates. In other words: simply knowing that a company might sue stops smaller host states from protecting the rights of their citizens. With reference to the KCA case, the minimum claim of $300 million, if granted, would place an extortionate burden on Guatemala’s coffers. While Guatemala is in a better position than other developing countries to satisfy this debt, many other countries would face bankruptcy when confronted with such a large claim. 

Of greater concern is the lack of transparency during ISDS disputes. Compared to the US legal system, ISDS proceedings are relatively opaque and exclusive. Tribunals can decide whether to accept or reject third-party amicus briefs and, unlike other legal recourse[s], third parties have no ability to intervene, leaving local communities without a say in which their interests are significantly impacted.

ISDS cases do not enjoy a consistent thread of jurisprudence. While precedents in this form of international arbitration do exist, there is no doctrine of stare decisis, so that a previous ruling on one issue from an analogous case does not ensure that a ruling in a pending case will be the same. Cases decided regarding similar matters, even involving the same country and with the same kind of investor have produced different results. This lack of consistency is exacerbated by the absence of an appellate system to correct substantive errors and ensure predictable outcomes. Arbitrators and decision-makers can be subject to bias or constrained by a lack of independence, resulting in decisions favoring investors, with no checks and balances. The rights of local communities and the state at large are left unacknowledged, whilst the rights of investors have the potential to be overemphasized. Creating a trend, the power imbalance inherent to ISDS is only set to increase. 

Finally, the cost and duration of ISDS cases is particularly problematic. Arbitration is usually a long, drawn-out process that negatively impacts host states far more than investors. A King’s College London study revealed that ISDS tribunals took on average 181 days, and 103 days for annulment committees to reach a decision. The written phase for submitting briefs – without annulment – took on average 407 days. The KCA case was brought to the court in 2016, and for 5 years has been consuming money, time, and resources whilst wreaking havoc on powerless local communities. As environmental journalist Louis Magriel observed …”This type of arbitration rejects community self-determination and the role of the government to make decisions that protect the best interests of their population.” (Gold Mining and Violence by Louis Magriel).

Potential Solutions 

ISDS dispute resolutions must produce fair, efficient, coherent and consistent solutions. At present, this is not the situation – we need to consider improvements which recognize and uphold the rights of all parties involved. Various short and long term solutions have been proposed. 

The ‘quick fix’ solution to the shortcomings of ISDS would be dispute prevention. This involved creating institutions that act as a precautionary structure aiming to reduce the legal temperature between investors and states. It would focus on developing specific working mechanisms which mediate between all parties involved. As appealing as the immediacy of this solution sounds, it is not viable long term; more permanent solutions need to be considered to properly uphold the rights of those other than the investors. 

Longer-term reform of the ISDS system could be a hopeful, albeit lofty, aspiration to redress the power balance.  Adapting ISDS policy through the institution itself, for example through making it easier to submit amicus briefs or allow the state to establish bi-legal challenges that mirror the ISDS suit, could help create a more equal system. However, the efficacy of these outcomes are limited. Any reform of the ISDS system will be long and tiresome, and at present, there is no clear solution. 

Another potential solution, as advocated by the Columbia Center for Sustainable Investment, is to terminate or withdraw from IIA’s altogether. The Center produced a report posing some potential reforms: “Chief among [ways for states to exit or mitigate the recognized adverse effects of the more than 3,300 treaties], we’ve advocated for termination (or withdrawal of consent to ISDS arbitration) of these treaties, as a near-term solution, alongside any longer-term project.” However, this impacts the economic interests of both state and investor, so is likely to be opposed by both the governments and corporate actors involved. 

Arguably, the most extreme yet effective solution would be to create an entirely new system alternative to ISDS. Countries in Latin America have led in this pursuit, establishing the ‘Centro de Solución de controversias en Materia de Inversiones’ which aims to establish a new mechanism to resolve investment disputes. However, progress has been slow and the states involved have faced various disagreements. The EU has also attempted to create a ‘multilateral investment court,’ but the changes made from the current ISDS system are minor and have failed to consider the key shortcomings of inefficiency, lack of transparency and failure to uphold the rights of all parties. Ultimately, whilst the idea of creating an entirely new system seems optimal, the actual act of establishing one that fits the needs of all stakeholders is complex and the potential for completion is low. 
Through briefly outlining some major potential solutions, it’s obvious there is no clear answer. Yet, there is a clear goal: to make the ISDS structure more equitable and to protect the rights of marginalized, developing nations that have been exploited by huge companies. We need to continue the fight to reform the system and ensure that stakeholders don’t get left out of the conversation.

National Popular Vote: Circumventing the United States Constitution

by Alexandra Orbuch

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1 Prin.L.J.F. 35

In 2016, Donald Trump became President of the United States after winning a majority of electors (he won 304 electoral votes, surpassing the necessary 270 votes) but losing the popular vote to Hillary Clinton. For reference, the national popular vote is the direct vote of individual citizens. The electoral vote, on the other hand, is cast by electors chosen as the result of the popular vote in each state. 

As a result of this electoral outcome, the vociferous objections of many with strong sentiments against the electoral college resurfaced. The issue of the electoral college, however, is not a new one. 

Founded in 2006, National Popular Vote (NPV) was created to lobby for The National Popular Vote Interstate Compact (NPVIC) which would allocate the electoral votes of the states in the compact to the overall winner of the U.S. popular vote. In the words of the NPV’s Agreement Among the States to Elect the President by National Popular Vote: 

​​“The National Popular Vote Interstate Compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538). At that time, every voter in the country will acquire a direct vote for a group of at least 270 presidential electors supporting their choice for President. All of this group of 270+ presidential electors will be supporters of the candidate who received the most popular votes in all 50 states and DC—thus making that candidate President.”

While there is a separate debate to be had about the relevance or “fairness” of the electoral college system, I want to explore the legality of the NPVIC here. The National Popular Vote Interstate Compact collectively apportions votes to the winner of the overall popular vote without a constitutional amendment abolishing the electoral college or the assent of Congress. Yet, by May 2021, 15 states and Washington, D.C., had signed onto the National Popular Vote Interstate Compact.  

This constitutes a violation of the Compact Clause, which states that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.” 

As I will outline below, NPV is a compact of a political nature that encroaches upon the power of non-member states, does not allow for signatories to withdraw at will, and gives its member states far more power than they would have had in its absence. All of the aforementioned contractual features, when taken together, form an unlawful interstate compact.

According to Virginia v. Tennessee, interstate compacts are defined as “all forms of stipulation, written or verbal…which may tend to increase and build up the political influence of the contracting states, so as to encroach upon or impair the supremacy of the United States, or interfere with their rightful management of particular subjects placed under their entire control.” The NPVIC does just that. It would have the power to change the results of federal elections and  “interfere with the federalist structure of the US Constitution’s procedure for electing a president.”

According to the opinion in United States Steel Corporation v. Multistate Tax Commission, “A proper understanding of what would encroach upon federal authority…must also incorporate encroachments on the authority and power of non-Compact States.” This component of defining a compact is certainly relevant in the case of NPVIC. Should the NPV Interstate Compact go into effect, non-member states would be negatively affected and votes of individual states would be of no consequence when compared to the popular vote. The election would be determined not by all voices, but instead by the one combined deafening voice of the compact. 

The National Popular Vote Manifesto promises that “The Compact ensures that every vote, in every state, will matter in every presidential election.” The key implication here is that the indirect election does not represent the will of the people, acting instead to dilute the one-man-one-vote principle which constitutes the basis of the electoral system. However, this argument misses a key consideration. We live in a republic that was founded to be a counterbalance to passing popular opinions and fads. It was intended to allow for the expression of regional and state concerns in addition to individual concerns. In the words of Baten v. McMaster: “the system reflects a considered balance between national and state power.”’ And the electoral college makes it so all states are represented in elections. 

In contrast, with a popular vote, politicians would need only to campaign in areas with the largest population. They would flock to California and New York, yielding to those voter bases and tailoring agendas to fit their demands, meanwhile ignoring states like Wyoming and Montana. Ironically, this was exactly the reason the founders had for instituting the electoral college: to prevent tyranny of the majority. 

The NPVIC is allowing just that. By circumventing the laborious process of amending the constitution, it is withholding the power of the rest of the states of our great nation to decide on the fate of the electoral college. It is allowing the electoral college to remain in name only. In that vein, I would like to discuss these aforementioned non-member states. 

Statista put together a chart featuring the “number of times each state has consecutively voted for its most recent party in U.S. presidential elections from 1964 to 2020.” Every single state that has enacted the NPV Bill is designated as Democratic learning with significant voting streaks. California has a Democratic voting streak of 8 elections; District of Columbia: 15; Hawaii: 9; New York: 9; California: 8. The list goes on. 

This brings to light a frightening reality. Not only does the NPV Bill violate the Compact Clause by harming non-signatory states, it effectively silences half of the two-party political system in this country. All states who have signed on lean left, leaving the right-wing of America out of the picture should the bill take effect. The National Popular Vote Compact Bill could change the outcome of U.S. elections in perpetuity. If that does not fall under the category of “encroachments on the authority and power of non-Compact States,” then I do not know what does. 

Now that we have discussed how the NPV Interstate Compact violates the Compact Clause through its encroachment on non-signatory states, let us turn to the next component: the inability of signatory states to withdraw from the compact at will. In United States Steel Corporation v. Multistate Tax Commission, the Supreme Court opined that in a permissible compact, “each State [would] retain[] complete freedom to adopt or reject the rules and regulations of the Commission…each State [would be] free to withdraw at any time.” 

Under the rules of the National Popular Vote Compact Bill, however, a member state cannot withdraw at will from the compact at any point in time. Should a state want to exit the compact within six months of the end of a president’s term; if the said state chooses to leave, they will still have to allocate their electoral votes to the winner of the popular vote in that election cycle. In the words of the NPVIC, “[a]ny member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

The prohibition of compacts in the constitution applies to “treaties of a political character,” according to Virginia v. Tennessee. A compact that impacts the outcomes of governmental elections is undeniably political in character and thus unconstitutional.

Finally, an unconstitutional compact is one that “authorize[s] member States to exercise…powers they could not exercise in its absence.” By giving its member states powers that they otherwise would not have had, the NPV Interstate Compact meets this standard of unconstitutionality. ;t allocates electoral votes to the winner of the overall popular vote rather than just to the winner of the vote in their respective states and gives the signatory states more power than those who refuse to sign the bill. As discussed earlier, the states involved would effectively be silencing the rest of the country. And as we have seen, that means that the right-wing of the country would lose its voice in elections and thereby in policy making essentially eradicating the diversity of thought and plurality that is so key to the American political character.

The NPV’s manifesto says the following: “The National Popular Vote interstate compact will go into effect when enacted by states possessing a majority of the electoral votes—that is, enough to elect a President (270 of 538).” Individual states–and even a minority of multiple states–would not possess the power that a compact with the majority of electoral votes would.  

Hence, my argument stands that the NPV Bill violates the Compact Clause of the United States Constitution. The Compact’s founders and proponents need to come to terms with the very real fact that they are waging war on our Constitutional order by being unfaithful to the manifest restrictions that document imposes upon the electoral system. No matter what they may think of the merits of our current system, there is no justification for shunting aside the constitution.