In United States v. Chatrie, the Fourth Circuit issued the first federal appellate opinion on the Fourth Amendment status of geofencing queries. The opinion is significant because geofences present a conceptual challenge to the framework of Carpenter v. United States, the reigning Supreme Court precedent on the Fourth Amendment status of digital searches. That opinion held that long-term tracking of a target individual was a search. However, geofencing reveals information about an indeterminate number of individuals for only a short time, in virtue of their being at a target location during a target span of time. Does the reasoning for the former holding in Carpenter entail that the latter is a search, too? I argue that the answer is no, unless Carpenter is given an ambitious interpretation. The court in Chatrie refused to go that far, and so held that the geofence at issue was not a search. I do not celebrate this result. Instead, I think it illustrates the limitations of Carpenter, doctrinally speaking, and the need to confront those limitations with eyes open.
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Response
by Samuel W. Calhoun
The Supreme Court has long misconstrued the Establishment Clause. This misinterpretation in turn has led the Court mistakenly to interpose itself into the realm of legislative prayer, an incursion the Founders never intended. This Response to Mary Nobles Hancock’s Note, after noting the complexity of the issues she presents, briefly comments on Ms. Hancock’s analysis, which focuses on how current Supreme Court doctrine should be applied to legislative prayer. Part III ranges more broadly.
Note
by Mary Nobles Hancock
This Note addresses whether, and to what extent, the four factors proposed by the Fourth Circuit, and subsequently rejected by the Sixth Circuit, are an appropriate test of the constitutionality of a legislative prayer practice under United States Supreme Court jurisprudence. Part II explores the background of the Establishment Clause and legislative prayer. The Supreme Court has placed significant emphasis on the history of legislative prayer in evaluating modern prayer practices, as seen in its two cases Marsh v. Chambers and Town of Greece v. Galloway. Part III examines the first two circuit court decisions to consider challenges to local legislative prayer in the wake of Town of Greece. Though factually identical, the Fourth Circuit in Lund and the Sixth Circuit in Bormuth arrived at opposite holdings concerning the constitutionality of the contested prayer practices. Part IV assesses each of the Lund four factors, comparing the Fourth Circuit’s reasoning in favor of these factors with the Sixth Circuit’s explanation for why they are an inaccurate measure under the Supreme Court’s guidance. In considering both the constitutionality and applicability of these four factors in legislative prayer challenges, this Note ultimately concludes that until the Supreme Court articulates a clearer test, these factors provide a valuable tool for lower courts.
Development
by Michael F. Dearington
Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort those very same shop owners in violation of the Hobbs Act. The corollary is that a shop owner can, in theory, conspire to extort himself. If a shop owner can conspire to extort himself as a matter of law, why can’t a bribe-taking foreign official conspire to bribe himself in violation of the Foreign Corrupt Practices Act (“FCPA”)? This Article posits that, under Ocasio’s flawed holding, and contrary to the oft-cited Fifth Circuit decision, United States v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam), he probably can.
Response
by David H. Moore
When U.S. Courts adjudicate transnational matters, they risk two forms of judicial imperialism. The first—unilateral imperialism—involves adjudication by a single state at the expense of multilateral forms of resolution or global governance. The second—sovereigntist imperialism—threatens the sovereignty of other states who might wish to resolve the controversy themselves. The risk of imperialism may lead U.S. courts to hesitate to adjudicate transnational claims. In Foreign Governments as Plaintiffs in U.S. Courts and the Case Against “Judicial Imperialism,” Professor Hannah Buxbaum highlights that in addition to facing involuntary adjudication in U.S. courts, foreign states voluntarily sue in U.S. courts as well. The phenomenon of foreign states as plaintiffs, she argues, undermines concerns for imperialism and counsels in favor of U.S. judicial resolution of transnational matters.
Buxbaum’s focus on foreign states as plaintiffs is an important contribution. The implications of the focus, however, are more circumscribed than her article might suggest. The fact that foreign states occasionally sue in U.S. courts means that adjudication of transnational claims by U.S. courts does not always constitute unilateral imperialism. Rather, suits by foreign states may be a form of global governance. When it comes to concerns for sovereigntist imperialism, by contrast, foreign invocation of U.S. jurisdiction fails to undermine the sovereignty concerns that arise when U.S. courts adjudicate against the will of foreign states. First, the typical claims foreign states assert as plaintiffs themselves show respect for sovereignty. Second, consent matters, and in nonconsensual cases sovereignty concerns continue to exist. Third, notions of reciprocity do not automatically justify involuntary adjudication due to foreign state invocation of U.S. jurisdiction. More is needed to conclude that the phenomenon of foreign states as plaintiffs justifies adjudication against the will of those states.
Development
by Kevin Bennardo
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.
Article
by Henry L. Chambers Jr.
The United States Supreme Court has hollowed out various voting rights protections, leaving all voters—minority and nonminority—less protected in a politically polarized America. Surprisingly, the Court has continued to protect representation for minority race voters who live in racially polarized areas. However, minority race voters risk losing that protection, typically provided through majority-minority districts authorized under the Voting Rights Act, if they build cross-racial coalitions with their neighbors. Under the Court’s interpretation of the VRA, cross-racial voting coalitions may be less protected than local majorities comprised of a single race of voters. The loss of such protection could leave their representation subject to the mercies of politically polarized national and state legislatures that may wish to, and may be allowed to, silence their voices and those of their cross-racial political allies. If America wishes to guarantee the voices of minority voters are heard when those voices are part of cross-racial coalitions, courts may need to revisit how minority political voices can be protected. For example, they may do so broadly by reconsidering the reach of the Fifteenth Amendment’s bar on race-based limitations on the right to vote or somewhat narrowly by rethinking the viability of voting structures—such as multimember districting—that were largely abandoned when used in the past to limit representation of minority voters but could be repurposed to help those voters have their voices heard today.
Article
by Mark E. Rush
This Article places the impact of the Voting Rights Act (“VRA”) in historical and futuristic context. There is no gainsaying that the VRA has had a tremendously positive impact in reversing or, at least, buffering the impact of discrimination throughout United States history. This is particularly—and sadly—manifest in the actions taken by some states to restrict access to the polls and voter registration in the wake of the Supreme Court’s Shelby County decision. A healthy democracy requires free and fair elections. Therefore, it is necessary to roll back such discriminatory laws. Yet, the battle over voting rights now takes place in a political universe that is vastly larger than it was at the time of the VRA’s passage. Accordingly, while measures such as the VRA have—and will continue to have—clear, positive impacts on the functioning of elections, it is important to note that elections play less of a governing role in an era in which the successful democratization of political power has led to its privatization and, correspondingly, to its lack of accountability.
Article
by David E. Landau and Rosalind Dixon
Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at many moments in U.S. history, including in both the Trump and Biden administrations. We survey examples of restorative constitutionalism both inside and outside the United States and show that it is a powerful and varied mode of change that can facilitate popular and elite consensus and repair damage wrought by anti-democratic political actors. Restoration is not without risks: it may restrict the horizons of constitutional imagination and be abused for authoritarian ends. Nonetheless, progressives would be well-served by engaging with restorative constitutional discourse, rather than treating it as a trap and allowing it to be monopolized by conservative constitutionalists.
Development
by Trace M. Maddox
This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.
Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is implicit in the Constitution of the United States. Embracing the principle that the Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed”, Ex Parte Grossman, 267 U.S. 87, 108–109 (1925), this essay analyzes that claim in the light of the pre-revolutionary common law and the writings of the Framers and their contemporaries. Drawing from these sources, this essay demonstrates that the Constitution reflects a clear intent on the part of its Framers to cleanly break with the historic tradition of the sacred and inviolable executive. On these bases, this essay concludes that a doctrine of post-presidential immunity from criminal prosecution is not merely—as the Court of Appeals properly held—unsupported by positive law, but, moreover, both contrary to the Framers’ intent and fundamentally incompatible with the Constitution of the United States. It therefore urges the Supreme Court, when deciding the issue for the final time, to consider the thousand-year-old history underlying Mr. Trump’s claims to immunity and to reject those claims as incompatible with the republican government established by this country’s founders.