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Development

An Administrative Solution to the Student Loan Debt Crisis

by Justin C. Van Orsdol

To say that the student loan debt crisis is out of control is a massive understatement. Although solutions such as Public Service Loan Forgiveness and the recent temporary payment/interest rate freeze have provided some relief for borrowers, more can be done. Of course, as with any large outlay of taxpayer dollars, opposition is sure to be heated. Given the current political climate, the likelihood of any legislative fixes seems unlikely.

But what if there was an administrative solution that could do more to address this crisis without the cost of the legislative process? This essay proposes such a solution. It explains how, through an executive order and changes in the Federal Acquisition Regulation, the Government can provide additional relief to the 5.3 million people who work for federal contractors. Further, this essay explains why such an approach might be more advantageous than traditional legislation and counters likely rebuttals.

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Development

How Biden Could Keep Filling the Federal Circuit Court Vacancies

by Carl Tobias

In October 2020, Democratic presidential nominee Joe Biden speculated that the fifty-four talented, extremely conservative, and exceptionally young, appellate court judges whom then-President Donald Trump and two relatively similar Grand Old Party (GOP) Senate majorities appointed had left the federal appeals courts “out of whack.” Problematic were the many deleterious ways in which Trump and both of the upper chamber majorities in the 115th and 116th Senate undermined the courts of appeals, which are the courts of last resort for practically all lawsuits, because the United States Supreme Court hears so few appeals. The nomination and confirmation processes which Trump and the Republican Senates instituted and the numerous extraordinarily conservative judges whom they confirmed undercut appellate court diversity in terms of ethnicity, gender, sexual orientation, ideology, and experience; the appointments procedures; and citizen respect for this critical responsibility’s discharge, the presidency, the Senate, and the federal bench. Peculiarly important, some cases which Trump appointees have decided show how prescient was Biden’s rather impressionistic answer to a press question regarding the controversial issue of Supreme Court packing, which the nominee afforded near the 2020 presidential election’s conclusion. For example, Trump United States Court of Appeals for the Fifth, Sixth, and Eleventh Circuit confirmees’ judicial decision-making elucidates these propositions. Therefore, Biden promised that his administration would comprehensively remedy those stunning problems.

This essay’s initial section examines the nomination and confirmation procedures initiated by the GOP White House and each of the Republican Senate majorities, which permitted Trump and the chamber to appoint substantial numbers of exceptionally conservative appeals court judges, mainly by contravening, rejecting, or downplaying numerous rules and conventions that prior Presidents and the Senates had applied to felicitously appoint preeminent, moderate, diverse court of appeals jurists. Part one scrutinizes how Trump and the GOP chambers easily nominated and confirmed significant numbers of judges whose opinions could affirm his troubling presidential behavior and concomitantly reject Biden’s efforts that would ostensibly move the nation in better directions.

Segment two evaluates manifold endeavors of Biden’s presidency and the Senate Democratic majority which carefully address Trump circuit appointments’ detrimental impacts. This portion reveals that Biden deployed lessons which the President had extracted from leading responsibilities that he discharged as a Judiciary Committee member and the panel Chair, particularly which implicated Supreme Court nomination and confirmation processes, and from service as Vice President in President Barack Obama’s Administration. Biden has correspondingly relied substantially upon high-ranking executive branch officials with longtime appointments experience, tapping, for example, Ronald Klain as his chief of staff while appointing Dana Remus White House Counsel, from the Obama era while employing numbers of effective selection practices which Presidents Obama and Trump and earlier Republican and Democratic chief executives had instituted.

Part three surveys the consequences for appeal courts of Trump’s judicial appointments efforts and the implications of how President Biden responded. The court selection measures that the Democratic chief executive implemented allowed the White House and the Senate to appoint prominent, comparatively mainstream, diverse jurists, which eclipsed Trump’s record for approving twelve very conservative, accomplished, youthful judges throughout a first presidential year. The considerable success of Biden and the Democratic Senate majority respected their pledges to directly rectify Trump confirmations’ adverse effects, improve numerous critical diversity features, and restore dynamic “regular order” across the judicial appointments process.

The difficulties—particularly appointing rapidly so many accomplished, highly conservative, lifetime jurists, which former President Trump and GOP senators certainly orchestrated—will remain for a significant number of years and Democrats currently possess an exceptionally narrow Senate majority. The concluding portion, accordingly, provides numerous recommendations for how President Biden and the chamber might continue increasing diversity, namely ideological, and revitalizing dynamic regular order to efficaciously improve the federal courts of appeals.

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Note

Big Little Lies: How Loopholes in the Small Business Act Allow Large Businesses to Profit

by Halley Townsend

The Small Business Administration (SBA) was established by Congress to create and administer programs to help small businesses compete in the national economy. But far too often, large, sophisticated firms profit from SBA programs meant to assist the little guy. Currently, Congress legislates specific programs tailored towards one type of small business, and the SBA is responsible for implementing the program. This process has resulted in loopholes in the SBA’s enabling act that permit powerful businesses to qualify for SBA programs. This result is the opposite of what Congress intended.

Part II provides background and the history of the SBA. Part III then discusses four SBA programs in detail: the 8(a) Business Development Program for minority owned small businesses, the Service Disabled Veteran Owned Small Business Program, the 7(a) Business Loan Program, and the 7(b) Disaster Loan Program. Part IV exposes the loopholes in these four programs that, at best, enable large entities to profit and, at worst, facilitate outright fraud. Finally, to ensure that federal assistance programs intended for smaller businesses do not instead benefit larger entities, Part V proposes that Congress amend the Small Business Act to create a broad, enabling superstructure under which the SBA could both create and implement its own programs to assist small businesses.

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Response

Using Waller to Uphold First and Sixth Amendment Rights Throughout the COVID-19 Pandemic

by Maya Chaudhuri

In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it is time to address this unconstitutional pattern of closures as courts grapple with their obligation to protect criminal procedural rights within a potentially long-term public health situation. This Response explains that following the Waller test as it was contemplated by the Supreme Court can and will vindicate defendants’ Sixth Amendment rights and the public’s First Amendment rights while protecting public health during the COVID-19 pandemic.

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Development

How to Get Away with Murder: When a White Male Police Officer Kills a Young Black Person

by Mitchell F. Crusto

Systemic racism in policing allows police officers, in particular white men, to continue to perpetuate the violent killings of Black people. This violence is not accidental. Rather it is intentional and allowed to continue due to a failure by the Supreme Court to hold police officers accountable. This Article explains how the doctrines of qualified immunity, willful intent, and objective reasonableness, as condoned by the Court, allow police officers to “get away with murder.”

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Response

How to Compromise on Saving the Most Lives: A Commentary on Hellman and Nicholson, “Rationing and Disability”

by David Wasserman

Deborah Hellman and Kate Nicholson’s “Rationing Disability” is a skillfully integrated analysis of the legal and ethical challenges of avoiding disability discrimination in setting priorities for the allocation of scarce lifesaving resources. Their analysis goes beyond the important but narrow question of what it means to wrongfully discriminate against people with disabilities in this context to the broader question of how to find a principled compromise between the consequentialist goals of public health and the potentially conflicting public value of “equal concern and respect” for each person. I will focus on this broader issue.

I agree with much of their analysis, as well as with their conclusion that the “reserve approach” offers both a principled and practical compromise between these deeply embedded values. And until their article made me rethink the issue, I agreed with the authors that the “probability of survival” (PS) and “resource intensity” (RI) principles they see as presenting close calls were equally consequentialist, relying to the same extent on the tenacious appeal of the imperative to save the most lives when all cannot be saved.

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Note

The Haunting of Her House: How Virginia Law Punishes Women Who Become Mothers Through Rape

by Jordan S. Miceli

If a rape victim becomes pregnant following the attack, she has three options: abort the pregnancy, place the child for adoption, or keep and raise the child. However, by requiring proof of conviction of rape to terminate the parental rights of the man who fathered that child through his rape, the Commonwealth of Virginia imposes a substantial burden on a victim weighing those options. To obtain a conviction under the current scheme, a victim, through her local prosecutor, has to prove to a jury that the accused committed the rape beyond a reasonable doubt. The Commonwealth requires proof of conviction in custody proceedings and adoption proceedings, punishing both the victim mother who chooses to carry the pregnancy to term and the child born of rape. Although termination of parental rights is a civil matter, the Commonwealth currently imposes a criminal standard of proof on victim mothers.

Thus, this Note urges the adoption of the clear and convincing evidence standard in such termination proceedings. The current scheme debilitates a victim mother unable to secure a conviction against her rapist due to the unique and complex nature of the crime. The Commonwealth leaves the victim with no real choice in the matter: either abort the pregnancy and be free of her attacker forever, or carry the pregnancy to term and live in fear that her rapist will assert his parental rights over the child. The adoption of the clear and convincing evidence standard will help alleviate the life-altering harm facing a mother and child, and will ensure that all parties are given equal treatment under the law.

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Development

How Biden Began Building Back Better the Federal Bench

by Carl Tobias

In October 2020, Democratic presidential nominee Joseph Biden famously expressed regret that the fifty-four accomplished, conservative, and young federal appellate court jurists and the 174 comparatively similar district court judges whom former– Republican President Donald Trump and the recent pair of analogous Grand Old Party Senate majorities in the 115th and 116th Congress appointed had left the courts of appeals and the district courts “out of whack.” Lamentable were the numerous detrimental ways in which President Trump and these Republican Senate majorities attempted to undercut the appeals courts and district courts, which actually constitute the tribunals of last resort in practically all cases, because the United States Supreme Court Justices grant certiorari in such a minuscule number of appeals. The nomination and confirmation processes that the Republican White House and upper chamber majorities implemented and the myriad conservative judges whom they approved undermined appellate court and district court diversity in terms of ethnicity, gender, sexual orientation, ideological balance, and experience; the appointments procedures; as well as citizen respect for discharge of the preeminent responsibility to nominate and confirm exceptional jurists, the presidency, the Senate, the judiciary, and the rule of law. Accordingly, President Biden promised that he would comprehensively rectify those stunning complications.

The initial five superb, experienced prospects whom President Biden officially nominated during the month of April 2021 and the Senate members efficaciously investigated, questioned, and considered during the spring and confirmed throughout June demonstrated that the President and the Democratic chamber majority respected these pledges to strongly counter the deleterious consequences imposed by the judicial appointments which the Republican chief executive and the two GOP Senate majorities orchestrated, to improve the court diversity constituents, and to comprehensively revitalize dynamic “regular order” throughout the nomination and confirmation regimes. Therefore, the complications which Trump as well as the Republican Senate majorities in the 115th and 116th Congress caused and how Biden and the Democratic Senate majority commenced remedying or ameliorating the problems deserve consideration, which this piece undertakes.

The first section of the paper evaluates federal judicial selection throughout the administration of former-President Trump and the tenure of the two Grand Old Party Senate majorities during his term in office. The second portion explores how President Biden and the nascent Democratic Senate majority in the 117th Congress have started rectifying the detrimental consequences of the judicial selection practices that Trump and the Republican Senate majorities deployed. Because the segment detects that the Democratic chief executive and the razor-thin chamber majority have begun implementing nomination and confirmation processes that address the difficulties created by the former Republican President and the Senate majorities in the 115th and 116th Congress, the final part affords suggestions for improving the federal judicial selection process in Biden’s presidency, the 117th Senate, and the future.

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Roundtable

Three Observations about the Worst of the Worst, Virginia-Style

by Corinna Barrett Lain

Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?

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Note

Equity over Equality: Equal Protection and the Indian Child Welfare Act

by Lucy Dempsey

In 2018, a Texas District Court shocked the nation by declaring the Indian Child Welfare Act (ICWA) unconstitutional pursuant to the Equal Protection Clause of the U.S. Constitution. The decision was overturned by the Fifth Circuit but may well be appealed to the U.S. Supreme Court. The ICWA provides a framework for the removal and placement of Indian children into foster and adoptive homes in such a way that attempts to reflect the unique values of Indian culture and supports the autonomy of the tribe. In doing so, the law treats Indian children differently than it would White children. But does this divergent treatment constitute impermissible racial discrimination? Should the ICWA’s protections be applied to children merely eligible for tribal membership? What level of scrutiny should courts use when analyzing the ICWA’s constitutionality? This Note will provide insight into these questions which the U.S. Supreme Court has not yet addressed.

This Note provides a background of the ICWA and examines the current constitutional controversy in the Fifth Circuit by placing the ICWA in the larger statutory context of federal Indian jurisprudence. This Note analyzes the fundamental question raised in Indian law equal protection cases—whether the term “Indian” should be interpreted as a racial or political classification. An examination of precedent confirms the unique status of Indians as non-racial, semi-autonomous actors who often receive uncommon treatment. With this context in mind, this Note explores past equal protection challenges to the ICWA and lays out the current case. This Note recommends that the Supreme Court uphold the Fifth Circuit’s finding of constitutionality on the equal protection claim and provides two possible analytical paths to reach that conclusion. The first ascribes to the common argument that “Indian” should be viewed as a political classification, subject to reduced scrutiny. The second, however, questions the assumption that the application of strict scrutiny is fatal to the ICWA, instead proposing an alternative path forward drawing from Supreme Court reasoning in affirmative action cases. This Note concludes that future challenges to the ICWA should be struck down as the ICWA passes all levels of constitutional scrutiny.

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