Category: Congress

Fly Big or Stay Home?

Nicholas Vickery

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2 Prin.L.J. 42

Whether it be for business, vacation, medical treatment, family matters, or something else, Americans are frequently flying. It is thus no surprise that the recent events surrounding the proposed JetBlue acquisition of Spirit Airlines are of great public interest. The two airlines reached a merger agreement on July 28, 2022, and following an investigative period, antitrust regulators from the Department of Justice (DOJ) announced on March 7, 2023 that they would sue to block the merger. The DOJ claims that “by eliminating that competition and further consolidating the United States airlines industry, the proposed transaction will increase fares and reduce choice on routes across the country, raising costs for the flying public and harming cost-conscious fliers most acutely.”[1] JetBlue and Spirit airlines have responded to the DOJ with counter arguments asserting that the merger would reduce the power of the “Big Four” (American Airlines, Delta Air Lines, Southwest Airlines, and United Airlines) through the creation of a new, more potent challenger. JetBlue’s CEO Robin Hayes, in fact, said that their merger will create a “national low-fare, high-quality competitor to the Big Four carriers which— thanks to their own DOJ-approved mergers— control about 80% of the U.S. market.”[2]

Many others, moreover, have expressed avid support for the proposed acquisition, most notably the Association of Flight Attendants-CWA (AFA). Sara Nelson, the president of this union, wrote in a letter to Attorney General Garland and Secretary of Transportation Buttigieg, “On behalf of 50,000 Flight Attendants at 19 airlines, including more than 5,600 Flight Attendants at Spirit Airlines, the Association of Flight Attendants-CWA, AFL-CIO (“AFA”) writes in strong support of the proposed merger between JetBlue Airways and Spirit Airlines.”[3] She later specifies that this support results from agreements from both airlines with unions to expedite collective bargaining negotiations and provide better benefits for airline workers.[4] Though there seems to be widespread support for the acquisition, I argue that the United States DOJ has sufficient standing and valid reason to sue and enjoin the merger, since it is clear it will have anticompetitive effects.

Over the last several decades, many similar mergers and acquisitions have occurred, and those have often resulted in a less competitive airline industry. In fact, in violation of the Clayton Act and other antitrust legislation, several airline companies—perhaps one of the best representations of a zeitgeist of consolidated market power—have engaged in anti-competitive behavior, including mergers, acquisitions, and partnerships that harm the consumer. Given relevant court precedents regarding similar antitrust issues, it is clear that the government has standing and legitimate reason to take action through the judicial system in order to enjoin further harmful, anti-competitive actions in the airline industry, including in the case of the JetBlue-Spirit Merger.

The rest of this article proceeds as follows: I will first examine antitrust legislation and the relevant case law that establish a very low burden of proof in antitrust cases. I will then explain how prior airline mergers and acquisitions have violated the aforementioned antitrust laws before applying these arguments to the current proposed merger between Spirit and JetBlue.

First, it is important to establish the standards for preventing a merger according to the operative legislation. Section 7 of the Clayton Act, which provides perhaps the most forceful and relevant legal guidelines, stipulates the following:

“That no person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”[5]

In short, the Clayton Act clearly prohibits any merger or acquisition that may have substantial anticompetitive effects. Emphasis, here, should be placed on the word “may,” which presents the possibility of preventing a merger without certainty of its effects.

Case precedent has also established a number of guidelines for determining whether the federal government can prevent a merger or acquisition. In Brown Shoe Co. v United States (1962), for example, Chief Justice Warren writes that “it is the probable effect of the merger upon the future as well as the present which the Clayton Act commands the courts and the Commission to examine.”[6] Not only does Warren assert that judges should consider future effects in conjunction with present effects, but he also establishes that it is merely the “probable effect” that is relevant. In the majority opinion for U.S. v. E. I. du Pont de Nemours & Co. (1957), furthermore, Justice Brennan writes, “We hold that any acquisition by one corporation of all or any part of the stock of another corporation, competitor or not, is within the reach of the section [Section 7 of the Clayton Act] whenever the reasonable likelihood appears that the acquisition will result in a restraint of commerce or in the creation of a monopoly of any line of commerce.”[7] Like in Brown Shoe Co. v. U.S., this decision likewise establishes a low standard for proving anticompetitiveness, highlighting that there need only be a “reasonable likelihood” as opposed to certainty. In U.S. v. General Dynamics Corp (1974), the Supreme Court upheld its earlier decision in Brown Shoe Co. v. U.S., with Justice Stewart writing in the majority opinion that “the mere nonoccurrence of a substantial lessening of competition in the interval between acquisition and trial does not mean that no substantial lessening will develop thereafter; the essential question remains whether the probability of such future impact exists at the time of trial.”[8] In perhaps the clearest description of the low standard required for proving the anticompetitive nature of an acquisition, Judge Posner of the U.S. Court of Appeals for the Seventh Circuit writes in the opinion for F.T.C. v. Elders Grain Inc. (1989) that “Section 7 forbids mergers and other acquisitions the effect of which ‘may’ be to lessen competition substantially. A certainty, even a high probability, need not be shown.”[9] These are only a small sampling of the currently effectual case precedents that establish that only a “reasonable likelihood”[10] is necessary—not certainty or even high probability. In essence, the standard of evidence for proving potential anticompetitive effects in violation of  the Clayton Act is fairly low.

Many airline mergers have violated the Clayton Act and, due to a lack of forceful government intervention in many cases, created an airline industry with highly concentrated market power. In 2020, the “Big Four” airlines (American Airlines, Delta Air Lines, Southwest Airlines, and United Airlines) made up roughly 76% of the operating revenue in the industry according to data from the U.S. Bureau of Transportation Statistics.[11] Their dominance is clearly pronounced. How did we get here? The answer: a series of largely uncontested yet anticompetitive mergers. In 2001, for example, American Airlines acquired Trans World Airlines, which made them one of the largest airlines in the United States. The DOJ did not contest this merger because Trans World had previously filed for bankruptcy, leading the officials to believe it would not pose a significant threat to competition. In 2005, US Airways, which American Airlines would later acquire, merged with America West Airlines. Similar to Trans World, US Airways was bankrupt at the time of the merger, leading to minimal government involvement. Then, in 2008, Delta merged with Northwest Airlines, making Delta the world’s largest airline for a short time. In 2010, United merged with Continental after avoiding antitrust litigation by transferring their Newark, N.J. assets to Southwest, which then acquired AirTran Airways. More recently, JetBlue and American Airlines began a partnership in 2020, which allows them to coordinate routes, connect perk programs, and share revenues on Northeastern routes. Now, JetBlue and Spirit are planning to further consolidate market power, and if this merger goes through, it would benefit American Airlines as well by extension.

Historically, mergers and acquisitions, such as the one pending for JetBlue and Spirit, have negatively impacted consumers as a result of decreased competition. After all, when there is lessened competition, airlines have less motive to provide high quality, low cost travel in order to attract consumers. In a study titled “Competition and Service Quality in the U.S. Airline Industry,” Michael Mazzeo uses information from the U.S. Bureau of Transportation Statistics and concludes that flight delays are more frequent and longer on airline routes where there is no competition, which “suggests that airlines may lack sufficient incentive to provide service quality in markets where they do not face competition.”[12] He continues to write that in markets with competition, airlines have greater incentive to invest in increasing quality because, since consumers have other options, low quality has revenue implications. In short, “Margins may be higher on monopoly routes because airlines that do not face competitive pressure can save the costs that would be needed to provide higher quality, on-time service.”[13] In another article titled “Mergers and Product Quality: Evidence from the Airline Industry,” economists Yongmin Chen and Philip Gayle arrive at a similar conclusion from studying the mergers between Delta and Northwest in 2008 and Continental and United in 2010. They determine that mergers are associated “with a quality decrease in markets where they [merging airline companies] did” compete,[14] and that these quality decreases can have a “substantial” impact on consumers.

Not only do mergers and acquisitions between previously competing airlines affect product quality, but prices usually rise as well when competition is eliminated. As evidence of this, Han Kim and Vijay Singal in “Mergers and Market Power: Evidence from the Airline Industry” find that, after studying several mergers that occurred between 1985 and 1988, “merging firms increased airfares by an average of 9.44 percent relative to other routes unaffected by the merger. Rival firms responded by raising their prices by an average of 12.17 percent.”[15] They also found that these price increases, moreover, “do not appear to be the result of an improvement in quality or of an industry-wide contraction of air services to rectify a supply-demand imbalance.”[16] In essence, not only do mergers and acquisitions between previously competitive firms result in quality decreases, but they also lead to higher air fares. Both of these effects are anticompetitive.

Because it is clear that mergers and acquisitions between previously competitive firms have anticompetitive effects that harm consumers, the government certainly has reason to be concerned about the proposed JetBlue-Spirit merger. Thus, to determine the legality of this specific merger and those that may occur in the future, the court must simply determine whether the two airlines were significantly competitive prior to merging, which would establish a “reasonable likelihood” that the merger would have an anticompetitive effect on the airline industry.

Spirit Airlines has a reputation for being a low cost flight option for consumers, and throughout 2022, they began plans to expand their routes and further compete with larger airline companies. In March of that year, for example, they announced plans to open crew bases in Miami and Atlanta, and, in July, to open a crew base in Houston. Spirit is undoubtedly among one of America’s fastest growing, lowest cost airlines. As they expanded and added routes, major airlines were forced to reduce their prices as a result of the introduction of low cost competition. The most prominent example of this would be when Spirit entered the Detroit-Boston route in 1996 with a notably low fare starting at $69. Shortly thereafter, Northwest Airlines, according to the court brief for Spirit Airlines, Inc. v. Northwest Airlines, Inc. (2005), lowered their fare dramatically from above $300 to a matching $69. Spirit also entered the Detroit-Philadelphia market and began competing with Northwest there as well, offering flights for $49.[17] For this route, too, Northwest lowered their fare as a result of Spirit’s entrance. Spirit Airlines, by virtue of being an ultra low cost competitor, lowered prices not only for Northwest flights but for many of the routes on which they competed. Before the merger announcement, Spirit was on pace to continue their rapid expansion and compete even more potently against other airline carriers, but this merger deal would end that expansion and the subsequent competition.

Like Spirit, JetBlue is also considered a low cost airline that drives airfares in competitive markets down, a fact demonstrated through the creation of the term “JetBlue Effect.” While JetBlue is considered a “low cost carrier” (LCC), it is not considered as affordable as Spirit, which is an “ultra-low cost carrier” (ULCC). Thus, Spirit’s price on routes they both fly causes JetBlue to lower their own prices. According to information compiled by Brad Shrago from the U.S. Department of Transportation in “The Spirit Effect: Ultra-Low Cost Carriers and Fare Dispersion in the U.S. Airline Industry,” in quarter 3 of 2019, 36.9% of JetBlue passengers flying directly could have also flown directly with Spirit airlines.[18] This data elucidates that JetBlue and Spirit routes have a significant amount of route overlap and are, therefore, significant competitors. This competition results in several benefits for consumers, especially lower airfares that appeal to more cost-conscious air travelers who are willing to sacrifice the slightly higher quality of a JetBlue flight for the affordability of one from Spirit. Shrago corroborates this argument, concluding that his “results support this hypothesis – the presence of Frontier and Spirit are associated with significant increases in fare dispersion. Increased dispersion results because carriers reduce fares aggressively at the bottom of the fare distribution when Frontier or Spirit is present, but only modestly at higher points in the fare distribution.”[19] In a word, Spirit’s presence as a ULCC reduces prices among LCCs, like JetBlue, and among Legacy carriers like the “Big Four.”

Supporters of this particular merger might contend, here, that the JetBlue-Spirit merger would allow the newly consolidated airline to compete more potently with the Big Four and drive down their costs. As has been demonstrated, however, the merger will eliminate a notorious ULCC and result in higher prices among routes on which they used to compete. Though their prices may remain lower than the legacy carriers, costs will likely rise, quality may decline, and options will certainly be reduced for travelers of those routes who will no longer have Spirit as an ULCC option. Legacy carriers, moreover, operate in a slightly different market, targeting wealthier clientele and offering more international flights. Thus, the merger would have major anticompetitive effects for those who typically fly with non-legacy carriers.

Spirit Airlines and other ULCCs, in essence, provide consumers with a more affordable option, which often forces LCCs like JetBlue and legacy carriers like American to lower their fares and make quality improvements. Airline mergers, which further consolidation in an industry already plagued by concentrated market power, are usually anticompetitive in nature, leading to decreased quality and increased fares when they occur between previously competitive companies. Section 7 of the Clayton Act clearly prohibits such mergers and acquisitions, and thus, the federal government has standing to and should sue to enjoin any merger or acquisition that will have anticompetitive effects. In the case of the JetBlue-Spirit merger, this is most certainly the case. Not only does Spirit lower the airfares of other airlines, but the two airlines have significant route overlap, especially in the Northeast and Southeast. Thus, any merger between the two would eliminate a major ultra low cost carrier and create a much larger airline likely to increase fares and reduce quality as a result of decreased competition. Because of this, the federal government has standing to sue and the court has reason to grant their request to enjoin this and future mergers, acquisitions, and partnerships between the top ten airlines.

[1] DOJ Office of Public Affairs, “Justice Department Sues to Block JetBlue’s Proposed Acquisition of Spirit,” Justice News (2023): https://www.justice.gov/opa/pr/justice-department-sues-block-jetblue-s-proposed-acquisition-spirit.

[2] David Koenig, “Biden administration sues JetBlue over $3.8 billion purchase of Spirit Airlines, claiming it could wipe out half of all low-ticket fares,” Fortune (2023): https://fortune.com/2023/03/07/jetblue-spirit-airlines-3-8-billion-biden-doj-antitrust-sues-block-merger/.

[3] Sara Nelson, “Letter to Garland and Buttigieg: ‘Re: DOT OST-2023-0023; DOT OST 2023-0024,’” Association of Flight Attendants-CWA, (2023): 1, https://assets.nationbuilder.com/afacwa/pages/3239/attachments/original/1677529231/02242023_AFA_Support_JetBlueSpirit_Merger.pdf?1677529231.

[4] Ibid, 2.

[5] 63rd Congress, Clayton Act, (2004): https://www.govinfo.gov/content/pkg/COMPS-3049/pdf/COMPS-3049.pdf.

[6] Brown Shoe Co. v. United States, 370 U.S. 294, (Supreme Court of the United States 1962).

[7] U.S. v. E. I. du Pont de Nemours & Co., 353 U.S. 586, (Supreme Court of the United States 1957).

[8] U.S. v. General Dynamics Corp., 415 U.S. 486, (Supreme Court of the United States 1974).

[9] F.T.C. v. Elders Grain Inc., 868 F.2d 901, (United States Court of Appeals, Seventh Circuit 1989).

[10] U.S. v. E. I. du Pont de Nemours & Co.

[11] Bureau of Transportation Statistics, “Airline Rankings 2020,” (2020): https://www.bts.gov/topics/airlines-and-airports/airline-rankings-2020

[12] Michael Mazzeo, “Competition and Service Quality in the U.S. Airline Industry,” Review of Industrial Organization 22, (2003): 276. https://doi.org/10.1023/A:1025565122721.

[13] Ibid, 294.

[14] Yongmin Chen and Philip Gayle, “Mergers and Product Quality: Evidence From the Airline Industry,” International Journal of Industrial Organization 62, (2019): 131, https://doi.org/10.1016/j.ijindorg.2018.02.006.

[15] Han Kim and Vijay Singal, “Mergers and Market Power: Evidence from the Airline Industry,” The American Economic Review 83, no. 3, (1993): 550, https://www.jstor.org/stable/2117533.

[16] Ibid, 567.

[17] Spirit Airlines, Inc. v. Northwest Airlines, Inc., 431 F.3d 917, (United States Court of Appeals, Sixth Circuit 2005).

[18] Brad Shrago, “The Spirit Effect: Ultra-Low Cost Carriers and Fare Dispersion in the U.S. Airline Industry,” Research Gate, (2023): 7, https://www.researchgate.net/publication/365187048_The_Spirit_Effect_Ultra-Low_Cost_Carriers_and_Fare_Dispersion_in_the_US_Airline_Industry.

[19] Ibid, 20.

FISA and the USA PATRIOT Act: Reforms and Legal Implications

Lizzie Evanko

Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978, in an effort to establish a legal framework for the physical and electronic surveillance of foreign entities. FISA allowed the federal government to collect intelligence on any foreign power (or agent of a foreign power) suspected of terrorism or espionage. The act in turn created the Foreign Intelligence Surveillance Court (FISC, or FISA courts, colloquially) to supervise the requests and uses of federal surveillance warrants. The FISA court established judicial review of the covert surveillance activities being carried out, but due to the sensitive nature of intelligence collection methods and information, these courts maintain a high level of secrecy to protect national security.

Congress passed FISA in response to the uncovering of government surveillance abuses (many of which occurred under the Nixon administration). The act made many surveillance practices legal and created a system to oversee the process of surveillance. However, FISA has been repeatedly amended, most notably following the attacks on September 11, 2001. One of the major amendments to FISA was the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or simply, the Patriot Act. While FISA limited the federal government’s surveillance capabilities to foreign actors, the Patriot Act vastly expanded surveillance permissions, establishing the ability to surveil US persons. Specifically, Section 215 of the Patriot Act, colloquially known as the “business records” provision, allows for investigative agencies to obtain secret court orders which require third parties (like telephone companies and other businesses) to hand over records and any other “tangible things” deemed relevant to a national security investigation. In most criminal cases, the burden of proof for a search warrant typically requires probable cause, which is based on an “officer’s reasonable belief, based on circumstances known to that officer, that a crime has occurred or is about to occur.” However, Section 215 remains particularly controversial, because some “thing” being relevant to a national security investigation is an extremely low burden of proof for the government to be able to secretly obtain records of virtually any kind. There does not need to be probable cause regarding a specific crime that has occurred or is about to occur for a warrant to be granted.

While many people would oppose government surveillance for the most part, there are arguments to be made in its favor. First, surveillance allows the federal government to develop intelligence and protect the American people from a large number of national security threats, like intellectual property theft, espionage, or terrorism. By using surveillance, the government is able to effectively target and incarcerate foreign agents that wish to do the United States harm, and the known possibility of surveillance may deter these agents from following through with their potential hostilities. Second, FISA and other surveillance acts create legal, transparent pathways for the government to eliminate investigatory barriers to gaining intelligence and building cases. Whereas other governments may keep their surveillance capabilities secret, FISA and the Patriot Act clearly outline what the federal government is allowed to do. Additionally, these acts allow the government to gain intelligence and build cases in legal ways. Lastly, one of the major arguments in favor of acts like FISA and the Patriot Act is that government surveillance will not directly affect most law-abiding citizens. In other words, “if you haven’t done anything wrong, you have nothing to fear,” so, unless one is a threat to national security (in which case we should hope such a threat is being surveilled), surveillance cannot pose a direct threat.

While these arguments stress the importance of FISA, there are similarly many arguments to be made against it. For one, even though FISA and the Patriot Act may make certain forms of surveillance legal, it is questionable whether or not the Patriot Act, in particular, violates some constitutional rights. For example, in Brandenburg v. Ohio, the Supreme Court of the United States determined that the First Amendment protects speech advocating for illegal activities, unless said language is intended and likely to incite “imminent lawless action.” This precedent established that even if one were to only speak about illegal activities, they may not necessarily be charged with illegal incitement. However, with the Patriot Act, free speech is significantly less protected, as the standard of probable cause for surveilling a subject is much more vague, and thus more easily met. For example, a surveillance order may be issued based on a person’s internet activity, book purchases, or published writings. These actions should fall under their First Amendment right to freedom of speech, but the Patriot Act allows for surveillance based on these actions, which is arguably violating their freedom of speech. Furthermore, recipients of search orders are prohibited from notifying others of the search, which further hinders their First Amendment rights.

The Patriot Act also violates aspects of the Fourth Amendment, which establishes that the government cannot “conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.” However, under the Patriot Act, the government can conduct secret searches without showing probable cause that the subject has committed or will commit a crime. The Fourth Amendment also guarantees notice to a person whose privacy has been violated by a search or seizure, whereas the Patriot Act does not guarantee notice, even after a subject has been investigated. Such notice is also a part of the Fifth Amendment’s guarantee to due process, so the lack of required notice by the Patriot Act could also be interpreted as a violation of the Fifth Amendment. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…” However, because almost all FISA information is classified, including its collection methods, many defendants are denied these important Sixth Amendment rights. Confidential informants’ identities are not revealed, refusing the defendants’ rights to confront their witnesses, and they are furthermore barred from accessing much of the information that led to their arrest in the first place. Moreover, the only people allowed to review FISA information are those with security clearances, so any details about collection methods are kept secret, making it impossible for a defendant to face a jury of their peers. Subjects of national security investigations or trials are thus left in the dark, which could be a violation of the Sixth Amendment.

There are other objections to FISA and the Patriot Act as well. For instance, some argue that the secret nature of surveillance proceedings leaves the federal government with too much unchecked power. With the secret nature of FISA information, witnesses, and collection methods, there is little supervisory oversight, and there is even less judicial oversight. The only judges and attorneys that are able to review FISA information are those with security clearances, and none of that information can surface in front of a jury or open courtroom. This leaves the information to be reviewed by a select few who are responsible for the entire proceeding. Judges of the FISA Court are hand-appointed by the Chief Justice of the Supreme Court with no say from Congress, and hearings are entirely closed to the public. How judges make decisions in these backroom discussions is entirely unknown to defendants and juries. A telling statistic about the decision-making of the FISA Court is that from the Act’s passing in 1979 to 2012, the court signed off on 33,942 warrants and denied only 12. This rate is significantly higher than similar warrant passage rates seen in the federal court system. Furthermore, FISA allows (in some cases) for warrantless search and seizure, making the nature of prosecutions that use information gained without a warrant more suspect. It has also been proven that FISA and the Patriot Act have, in fact, been overused. In 2013, whistleblower Edward Snowden leaked information “about the NSA’s ‘PRISM’ and ‘Upstream’ programs, which involve the NSA working closely with companies like Google, Facebook, AT&T, and Verizon to conduct warrantless surveillance of Americans’ international communications on a massive scale.” This evidence proved that the surveillance capabilities granted by FISA and the Patriot Act were being abused.

The courts have addressed some of these issues. Antoine Jones was convicted of drug-trafficking conspiracy, based on information collected by a GPS device that was put on his car, 24 hours after the warrant to place the device had expired. The Supreme Court, in United States v. Jones, rejected the lower court’s claim “that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares,” and it held that the surveillance on Jones’s vehicle was a violation of his Constitutional rights. The case demonstrated that, again, the federal government had infringed upon the Constitutional rights of investigation subjects, and the Court set the precedent that, even when a crime has been committed, the rights of the accused take priority over law enforcement concerns. Another major case regarding the Constitutional violations of FISA and the Patriot Act is ACLU v. United States, in which the ACLU filed a motion following the Snowden documents’ release in June 2013. The motion requested the FISA Court “publish its opinions on the meaning, scope, and constitutionality of Section 215,” but was subsequently denied. The ACLU filed several other motions for review, all of which were denied. The ACLU then “filed a petition for writ of certiorari in the Supreme Court, challenging these rulings and asking the court to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.” The Supreme Court denied the petition for writ of certiorari, arguing that not only should the lower court’s rulings be upheld because they were correct, but that the Supreme Court is also powerless to review the lower court’s decisions, even if they were found to be incorrect. In Justices Sotomayor and Gorsuch’s dissent, they state, “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

These cases all demonstrate a connecting theme: there is extremely little oversight or public understanding of FISA and the Patriot Act, and yet, there continue to be dangerous implications and failures of these acts. Especially going forward, since we live in an increasingly online society, these acts must be reconsidered. It is clear that the practices of government surveillance have implications that threaten the Constitutional rights of the American people. Regardless of FISA and the Patriot Act’s successes, the presence of so many examples of misconduct prove that a tool as powerful (and useful) as these acts needs to have more safeguards in place, and more information needs to be made publicly available for people to know to what risks these acts expose them.

Steering Towards Safety: Analyzing the Constitutionality and Effectiveness of Alternative Regulatory Frameworks in the Production of Self-Driving Vehicles

Clay Reiferson

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2 Prin.L.J. 33

I. Introduction: A “Patchwork” System

How do we weigh the value of the lives of future generations against the people of today? In the United States, federal and state governments are left to ponder this question as they seek to regulate the burgeoning self-driving car industry. It is widely accepted that, by removing human error, self-driving cars will offer a safer alternative to human-driven ones. Proponents of rapid innovation in the field point to the fact that 94 percent of all crashes, which account for over 30,000 US deaths per year, can be attributed to human error. As such, the faster we can achieve a reality dominated by high-level Automated Driving Systems (ADSs), the better off future generations will be. But rapid innovation comes at a cost—one the country saw for the first time in 2018. In an effort to accelerate the pace of innovation and create a safer transportation system for future generations, Arizona elected to adopt a loose regulatory framework surrounding ADSs. This decision flushed automakers who wished to test their self-driving vehicles out of neighboring California, whose legislators took a more stringent regulatory position. One such testing vehicle belonged to Uber, and would go on to tragically kill Elaine Herzberg on a public Arizona roadway in what marked the first fatal self-driving car accident. Herzberg’s death raised two pressing legislative debates: should the regulation of ADSs remain a state-led issue? And what changes, if any, should our lenient federal regulatory system undergo to prevent similar tragedies?

The first of these questions hinges on a debate over federalism that has plagued American politics since the country’s founding. The current division of power allows states to dictate policy regarding issues of licensing and driver education, while the National Highway Traffic Safety Administration (NHTSA) is tasked with regulating vehicle safety more broadly. With the hope of guiding states towards a consistent regulatory framework, the NHTSA published a Model State Policy in 2016, noting that a “patchwork of inconsistent State laws” could “impede innovation.” But these suggestions have gone unheeded in recent years, threatening both public safety and innovation. As such, I will argue that Congress must use its power under the Commerce Clause to regulate the “instrumentalities of interstate commerce” and preempt state authority in a manner similar to the failed SELF DRIVE Act of 2017. To make this legal argument, I will analyze the opinions of Justices Scalia and O’Connor in Gonzales v. Raich, a case in which the Supreme Court voted to uphold the federal prohibition of local marijuana use otherwise permissible under California law. Operating at the intersection of Congress’s commerce power and states’ police powers, the regulation of ADSs grapples with similar issues as those proposed in Raich. As a result, a thorough examination of its contents is necessary to assess the constitutionality of sweeping federal regulations in the rapidly developing ADS market.

Even if we are to accept a preemption of state authority, however, the debate over how to design our federal regulatory system still remains. Tasked with constructing this framework, the NHTSA established a self-certification model to control the production of ADSs, in line with its handling of human-driven vehicles. Under this system, manufacturers must ensure that their products meet legal requirements as outlined by the Federal Motor Vehicle Safety Standards. The NHTSA may then purchase the certified vehicles and test them for compliance after they reach the market. Researchers Adam Thierer and Caleb Watney support this self-certification model, arguing that the opportunity costs of a more intrusive regulatory framework outweigh the present benefits. Legal scholar Spencer Mathews, meanwhile, suggests a complete overhaul of our current self-certification system in favor of type approval, which denotes a rigorous procedure where regulators approve products directly before sale while being involved in each stage of the design process. The Federal Aviation Administration (FAA) uses type approval to regulate the production of aircrafts, a decision Mathews claims “permit[s] innovation while ensuring public safety.”

To strike the proper balance of regulation so as to promote innovation and short-term safety goals, I will suggest both a reallocation of power amongst federal and state governments and a restructuring of our current self-certification system to include pre-market safety assurance tools. The safety of American citizens will always be decided by the policies of the least regulated state, and as such, the regulation of ADSs cannot remain a state-led issue—preemptive policies similar to those proposed in the failed SELF DRIVE Act, which I will discuss later on, are necessary to prevent a chaotic medley of conflicting laws. The precedent set by Gonzales v. Raich allows for such a bill, establishing that intrastate issues of public safety, although not normally defined as within the scope of congressional power, can be the subject of federal regulation when they threaten the effectiveness of legislation regarding interstate commerce. Alongside this preemption of state authority, a more rigid version of the NHTSA’s current self-certification framework must be adopted to promote public safety, ensure consumer confidence, and allow automakers and regulators to realize their dream of zero road deaths. In constructing such a system, however, it is important not to overextend our regulatory framework in order to protect future generations. As a result, we must disregard Mathews’ suggestion of a type approval system in favor of a restructuring of our current self-certification model, since it fails to properly balance private innovation with public safety.

II. A Brief Legal History

Before analyzing Gonzales v. Raich, it is necessary to introduce two foundational cases in our modern understanding of the Commerce Clause. The first of these cases, Wickard v. Filburn, redefined the scope of congressional authority over local activities. In it, the Court ruled against a local Ohioan farmer who was found to have violated federal restrictions on wheat production after harvesting additional wheat to feed his cattle. Although the Court recognized that this action may have had a negligible impact on his participation in the national wheat market, the unanimous decision contended that the aggregate effects of such an action played out on a national scale may prove more substantial. Thus, Wickard established Congress’s ability to regulate commerce at a local level so long as the cumulative effects of the commercial activity significantly influenced interstate commerce. The case of United States v. Lopez, meanwhile, worked to limit the broad authority granted to Congress in Wickard. The majority found a federal law forbidding the possession of firearms in school zones to be unconstitutional, noting that gun possession in such an area was not an economic activity that could substantially affect interstate commerce. Unlike in Wickard, the Court argued that the repetition of such an action elsewhere did not produce a larger net effect. Both of these cases will serve as important background as we shift our attention to Raich.

In a 6-3 ruling, the Court found that the prohibition of marijuana possession under the Controlled Substances Act fell within Congress’s commercial jurisdiction and thus took precedence over California legislation explicitly authorizing the use of the drug for medicinal purposes. Justice Scalia explains this decision in his concurring opinion, claiming that Congress’s power over commerce supersedes any state authority when the regulation of local activities is deemed necessary to maintain a comprehensive regulatory scheme. Justice O’Connor disagrees, however, offering a more narrow definition of commerce in her dissenting opinion, while admonishing the majority for allowing Congress to encroach on states’ traditional power over the health and safety of their citizens. With this context in mind, we can begin to dissect the justices’ positions and apply the lessons from our analysis to the production of ADSs.

III. Lessons From Gonzales v. Raich

Obsessing over the sanctity of states’ police powers, Justice O’Connor fails to critically examine the Court’s Commerce Clause jurisprudence, instead dismissing the case of Wickard v. Filburn after pointing to seemingly irrelevant incongruencies between it and Raich. Justice O’Connor defends her dismissal of Wickard, because unlike Raich, it “did not extend Commerce Clause authority to something as modest as the home cook’s herb garden.” If the scope of federal regulation is what matters—whether or not it offers exemptions to small-scale producers—then Justice O’Connor’s contention with Raich relies on the same “superficial and formalistic distinctions” she claims riddle the opinion of her opponents. If the respondents had cultivated larger quantities of marijuana (say as much as Roscoe Filburn’s excess wheat), albeit still for personal use, would Justice O’Connor then find the decision in Wickard to be suitable? Attempting to clarify this stance, she notes that in contrast to Wickard, the decision in Raich “impl[ies] that small-scale production of commodities is always economic.” But even the Court’s opinion in United States v. Lopez, which Justice O’Connor holds as the primary relevant precedent, recognizes that the economic nature of a local activity is not an essential factor in determining Congress’s ability to regulate it. A noneconomic intrastate activity can be regulated, the Court found in Lopez, if it is deemed to be “‘an essential part of a larger regulation of economic activity.’” These ideas hearken back to the majority’s opinion in Wickard and present a steep challenge for Justice O’Connor’s repeated assertion that the local use of marijuana central to Raich is not economic in nature. As such, Justice O’Connor’s limited acknowledgment and ultimate dismissal of the precedent set by Wickard detracts from the legal accuracy of her argument.

Justice O’Connor places emphasis on the Court’s definition of economic activity out of fear that, absent any clear “objective markers,” the balance of power between states and Congress will be thrown off by the Court’s decision in Raich; analysis of Justice Scalia’s concurring opinion quells such concerns, however, with the recently deceased justice identifying markers that place clear limits on congressional authority., Describing her objection to the majority opinion, Justice O’Connor claims that the Court must “identify a mode of analysis that allows Congress to regulate more than nothing and less than everything.” The decision in Raich, she contends, leans too heavily towards regulating everything. She argues that the majority’s invocation of the Necessary and Proper Clause, which together with Congress’s commercial authority grants the federal government the power to regulate intrastate activities “necessary to and proper for” interstate commercial regulation, “will always be a back door for unconstitutional federal regulation.”, Justice Scalia appeals to the words of Chief Justice Marshall in McCulloch v. Maryland, however, to highlight the flaws inherent in this reasoning. If Congress wishes to exercise its power under the Necessary and Proper Clause for a “constitutional and legitimate” end, he argues, “the means must be ‘appropriate’ and ‘plainly adapted’ to that end.” Justice Scalia applies these restraints to the case of Raich, concluding that the prohibition of intrastate marijuana use is an appropriate means of regulating what he considers a constitutional end. Further application of this test to the case of Lopez, meanwhile, exemplifies the limits of congressional authority. While the goal of the federal government in Lopez may be considered legitimate, the legislation passed by Congress to achieve this end proved to be inappropriate. With an opinion founded on the precedent of Lopez and a dismissal of Wickard that fails to adequately address the clearly defined restraints on congressional authority outlined by Justice Scalia, Justice O’Connor’s dissent must be disregarded.

Applying the broad definition of interstate commerce central to Raich, it is evident that the preemption of intrastate authority over the manufacturing and production of ADSs is within Congress’s commercial jurisdiction, and does not destroy the notion of enumerated powers. The federal government’s command over the “instrumentalities of interstate commerce” extends to even noneconomic, local activity, so long as such activity “substantially affect[s]” interstate commerce. The manufacturing and production of ADSs, two components of commerce accepted by the majority in Raich, is therefore within Congress’s regulatory power. Even accounting for the interplay of public safety and states’ traditional preeminence over this domain, Raich clearly establishes that congressional power supersedes state authority in all commercial contexts. As the majority opinion notes, Wickard establishes that “‘[n]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress.’” Instead of allowing a state such as Arizona to “‘serve as a laboratory’” for “‘novel social and economic experiments,’” a reality Justice O’Connor calls “one of federalism’s chief virtues,” Congress must exercise its plenary commerce power if it wishes to maximize both the safety of its citizens today and the efficiency with which we reach an ADS-dominated future. Our current patchwork system threatens to harm both of the goals central to the NHTSA’s federal regulatory framework.

If Congress wishes to uphold the federal regulatory system, as is within its legal authority under Raich, it must reconsider preempting certain state regulations in a manner similar to when it nearly passed the bipartisan SELF DRIVE Act five years ago. This bill, which failed to pass the Senate in 2017 and is being pushed once again by members of the Energy and Commerce Committee, includes a provision preventing states from establishing any law “regarding the design, construction, or performance of highly automated vehicles, […] unless such law or regulation is identical to a standard prescribed under this chapter.” This provision is then followed by a higher performance requirement, which grants states the authority to prescribe greater performance standards than is federally mandated. In doing so, the bill grants states freedom while also ensuring a rigid and uniform federal regulatory framework. This eliminates the issue presented earlier when discussing the death of Elaine Herzberg and asymmetric regulation in the case of Arizona and California; no longer would the policy of the least regulated state dictate the safety of American citizens. In addition to creating a safer environment, establishing a more uniform system may help manufacturers navigate the legal challenges before them and encourage innovation as a result. Preemption is an appropriate means of achieving these legitimate ends.

IV. Analyzing Alternative Regulatory Systems: Self-Certification vs. Type Approval

With the legal debate over the federal encroachment of state authority settled, we must now turn to the content of our national regulatory system and identify the optimal strategy for maximizing safety and innovation; although Mathews acknowledges the threat type approval poses to innovation, he incorrectly assumes that it can be mitigated after exaggerating the limited nature of its scope. In a 2016 report, the NHTSA reviewed the applicability of the FAA’s type approval process and outlined significant barriers to entry. First, it found that certification lasts three to five years on average. In an industry that is oversaturated with manufacturers and dominated by yearly release cycles, such a timetable would severely hamper innovation and require an overhaul of the car market altogether. But certification can last even longer than five years in some cases. The NHTSA found that it took the Boeing 787 Dreamliner eight years to receive approval due to “the very advanced nature of the aircraft and the production of key components in locations geographically distant from one another.” Mathews would be remiss to assume that ADSs may not face a similarly difficult approval process, since the technology they rely upon is both advanced and constantly evolving. In response to the lengthy timetable of type approval, Mathews strips down his proposal and ultimately argues for a hybrid-type system. “Self-certification,” he writes, “could be preserved for vehicle hardware not critical to the operation of the ADS, and type approval instituted for the ADS and ADS-critical hardware.” Due to their advanced nature, however, anything critical to the ADS would presumably require more time to approve than the hardware associated with typical vehicles. As such, this hybrid approval process faces the same issues as type approval. If America wishes to remain at the forefront of production and innovation in the self-driving car market, it cannot adopt a model similar to what Mathews suggests.

The safety benefits Mathews attributes to type approval, meanwhile, become blurred when viewed through the lens of Thierer and Watney’s predictive model, which applies a broader time-frame when quantifying safety. While Mathews assumes a negative relationship between innovation and safety, Thierer and Watney argue that the two are fundamentally related ends, since future generations are left better off. Although I do not refute the existence of a negative relationship when looking at the short-term effects of regulatory policy, a long-term positive relationship can be established with minimal regulations in place to protect society today. Modeling the potential costs of type approval, Thierer and Watney project that a mere slowdown of 5 percent in the deployment of automated vehicles would lead to “an additional 15,500 fatalities over the course of the next 31 years.” A more drastic change resulting in a regulatory delay of 25 percent, meanwhile, would bring about 112,400 deaths over 40 years. If we are to accept this bleak reality and consider a broader lens when deciding on regulatory policy, type approval no longer offers the extreme benefits to public safety outlined by Mathews.

While type approval may not be a viable alternative to self-certification, Mathews raises an important discussion about consumer confidence in ADSs that presents significant challenges for Thierer and Watney and their hope of maintaining the status quo. If consumers are unwilling to purchase automated vehicles or step foot in self-driving taxis, innovation will naturally slow as a result of low demand. Mathews argues that knowledge of the regulatory approval required before automated vehicles can appear on public roads may increase consumer confidence and ensure high demand. Furthermore, the benefits of type approval in regard to present safety may “prevent the kinds of accidents, such as the Uber crash in Arizona, that undermine public confidence and put the entire future of automated vehicles at risk of a public backlash.” Thierer and Watney fail to mention consumer confidence in their analysis of type approval, nor does it appear to be a factor in their projections regarding the deployment of automated vehicles. A survey conducted by the Pew Research Center in 2017—before the death of Elaine Herzberg spawned increased negative sentiment towards ADSs—validates Mathews’ fears. It found that 56 percent of US adults would not ride in a driverless car, with the majority of this uneasiness stemming from safety concerns and a lack of trust. If this poor confidence slows the pace of innovation, then it too is a grave threat to future safety. Thus, any regulatory framework that aims to promote the safety of both present and future citizens must also be sufficiently strict so as to raise consumer confidence in ADSs.

Although finding this Goldilocks zone may be a near impossible task, I will suggest basic pre-market safety assurance to supplement our current self-certification system. The US Department of Transportation (of which the NHTSA is a member) mentioned safety assurance in a 2016 report on Federal Automated Vehicles Policy as a possible improvement, but seems to have forgotten about it in the years following its publication. Safety assurance tools such as pre-market reporting by vehicle manufacturers of internal testing and data analysis, USDOT argued, could help ensure that “design, manufacturing, and testing processes apply NHTSA performance guidance, industry best practices, and other performance criteria.” By engaging with manufacturers before vehicles are allowed on public roads, safety assurance might help alleviate consumers’ concerns regarding their safety and trustworthiness. With this change, our regulatory framework would remain one of self-certification and thus maintain the innovation-related benefits associated with such a model, while also boosting public safety by both marginally improving present safety and raising consumer confidence so as to promote future safety. Best of all, while a shift to type approval would require congressional approval, no additional statutory authority is required for the NHTSA to implement safety assurance.,

V. Conclusion: Maximizing Safety Without Slowing the Pace of Innovation

Confronted with a sea of regulatory options, Congress and the NHTSA must guide the development of ADSs in a manner that best promotes both present and future safety. Mathews’ analysis fails to address the shortcomings of type approval, which can be disregarded as a harmful alternative to self-certification due to its tendency to slow innovation and threaten long-term public safety as a result. But self-certification may not be the boon to innovation and public safety Thierer and Watney suggest either, since their defense of our current system fails to address issues of consumer confidence. When considering demand in a predictive model of future innovation, increasing regulatory standards becomes more appealing. To achieve the proper balance of regulation so as to accelerate the pace of innovation and maximize short-term safety, I suggest a restructuring of our current self-certification system that relies on the addition of pre-market safety assurance tools.

But even this construction of a more robust national framework falls short if our current regulatory patchwork of state laws remains intact. With the SELF DRIVE Act once again sitting on the floor of Congress, it is imperative that the Senate reconsiders its earlier position. The NHTSA cannot achieve its vision of a safe and innovative self-driving car market if states are left to their own devices. Although far-reaching, this preemption of state authority does not represent an egregious or unconstitutional extension of federal power, but instead fits within the broad definition of interstate commerce championed by the majority of the Supreme Court in Raich. The safety of American citizens, both today and in the future, depends on these changes.

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.

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.

Tyranny of the Minority: The Unconstitutionality of the Filibuster

by Madeleine Polubinski

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1 Prin.L.J.F. 16

In recent years, congressional gridlock has focused national attention on the Senate’s filibuster. The filibuster is the process by which a minority of senators delay or prevent a vote on legislation by speaking as long as possible on the Senate floor, until three-fifths of the Senate invoke cloture, which moves the chamber to a vote. While the debate over the filibuster typically centers on its impact on governance, a different debate has been simmering among legal scholars for years: is the filibuster even constitutional? After all, the filibuster is not authorized in the Constitution, nor is it expressly prohibited. I argue that the filibuster in its original, purest sense is constitutional, but that is not the filibuster we have today. In its current form, the filibuster is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.

The text of the Constitution and the history of Congress suggest that the filibuster as a debate-enhancing mechanism is constitutional. As legal scholar Michael Gerhardt argues, “the filibuster derives its principle authority from the Senate’s express power to design its own procedural rules to govern its internal affairs.” At its core, the filibuster regulates internal procedure, and thus the supermajority requirement for cloture is well within the Senate’s power. 

Many scholars argue that cloture requirements reflect many of the principles underlying the Senate. Despite its potential for abuse, the filibuster, fundamentally a mechanism to continue debate, embodies the Senate’s deliberative nature. Although the Constitution makes no mention of a filibuster, the process has a long history dating back to 1806, which some argue proves its legitimacy. Furthermore, the filibuster may enhance protections of minority interests and promote consensus, producing more agreeable and thorough legislation.

However, the filibusters’ debate-promoting potential is inextricable from, and ultimately overshadowed by, its obstructionist implementation. For more than a century, senators have exploited cloture rules to stall Congress or block legislation altogether. Filibusters have become less about debate and more about grandstanding for media attention or simply killing time to stall a bill. After exhausting relevant topics, which are rarely genuine efforts for further deliberation, speeches often devolve into unrelated topics that range from discussions of salad dressing recipes to recitations of each states’ voting laws. 

At best, today’s filibuster sees senators belaboring well-known objections to bills. At worst, it shuts down debate and stalls the Senate, delaying or blocking legislation. In an even more flagrant deviation from the filibusters’ supposed deliberative function, filibustering today usually does not even require debate. “Silent filibusters” allow senators to block legislation without debate by merely voicing their intent to filibuster. Silent filibusters are a complete perversion of the filibusters’ deliberative potential and prove that the process functions as nothing more than a three-fifths majority requirement for regular legislation.

When considering the filibuster as a supermajority requirement for regular legislation, it is clearly unconstitutional.2 As a textual matter, the Constitution appoints the Vice President as the tie-breaking vote in the Senate, providing that they “shall have no Vote unless [the Senators] be equally divided.” This provision implies that the Senate must pass regular legislation by a majority vote. The Framers of the Constitution, while concerned with tyranny of the majority, generally favored majority rule except for certain cases. In fact, the specification of supermajority requirements in the Senate elsewhere in the Constitution, like for the ratification of treaties, indicates that the Framers never envisioned a supermajority rule for regular legislation.1

The Framers, famously wary of tyranny of the majority, devised a system of governance to protect minority rights and promote deliberation without a filibuster. The Federalist Papers outline how checks and balances, federalism, and other structural mechanisms prevent abuses of power, suppression of minority interests, and rash government action. The Framers clearly feared tyrannical majorities and an overly powerful legislature. However, even they deemed a supermajority cloture requirement unnecessary, undermining the argument that the filibuster enhances the Senate’s intended function.

Furthermore, the filibuster lacks a firm historical foundation to support its constitutionality.3 A high-minded commitment to debate did not motivate the filibuster. Rather, the Senate accidentally opened the door for it in 1806 because they deemed the original debate-ending mechanism unnecessary. Even then, no Senator exploited this mistake until 1837, when rising partisanship fostered more obstructionist tactics. 

Proponents of the filibuster claim that the Senate effectively affirmed the constitutionality of its cloture rules during every filibuster or cloture motion since the 1800s. However, the persistence of a practice does not legitimize it. This is especially true for a practice like the filibuster, which inherently impedes revision, violating “anti-entrenchment,” a principle that forbids a past legislature from binding a current legislature to a rule or practice it would otherwise reject.4 Because a supermajority is necessary to eliminate the supermajority requirement for cloture, a formal change to Senate rules is virtually impossible because minority senators have no incentive to cede their power.

While the filibuster is theoretically constitutional, its current usage violates the Constitution because its obstructionist function has overtaken its debate-enhancing potential. Rather than promoting debate, it effectively imposes an unconstitutional supermajority requirement on the Senate to pass virtually any piece of legislation. Ultimately, the filibuster’s problems have arisen out of its implementation. As political parties solidified and polarization increased, so did the incentives for politically motivated obstruction. If senators genuinely used the filibuster to continue productive debate and moved to a vote after sufficient discussion, it may pass constitutional muster. However, today’s divisive political climate and the long-standing violation of those standards make it impossible to return to old norms. Unless the Senate reforms the filibuster to curb its obstructionist implementation and restore its deliberative function, it must be abandoned on constitutional grounds.

1 The three-fifths majority requirement only applies to regular legislation. The Senate can pass bills related to government spending and fiscal policy through the budget reconciliation process, which allows bills to pass with a simple majority. However, all legislation unrelated to the budget requires a supermajority because of the threat of a filibuster.

2 More issues of constitutionality arise when the filibuster is used to prevent presidents from appointing officials and judges to certain positions. Because the Constitution grants this power of appointment to the President with “the Advice and Consent of the Senate” without specifying a supermajority requirement (as it does in other provisions), a filibuster that effectively imposes a supermajority requirement and hinders the President’s constitutionally defined power is likely unconstitutional. However, the filibuster for presidential nominees has already been eliminated, so this issue is moot.

3 While not central to the question of constitutionality, the filibuster’s history is ugly. Southern Senators repeatedly exploited the filibuster to preserve Jim Crow laws and block civil rights legislation. Far from protecting minority rights, the filibuster enabled a congressional minority to preserve a brutally racist system and prevent the mitigation of racial minorities’ oppression.

4 While the anti-entrenchment principle is not explicit in America’s founding documents, it impedes governance and is commonly invoked when discussing legislative procedure.