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Tag: Constitutional Law

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

Parties have begun filing lawsuits seeking to “reopen” their states. These lawsuits challenge business closures and stay-at-home orders mandated by state and local governments. The Supreme Court has acknowledged, in the due process context, “the authority of a State to enact quarantine laws and ‘health laws of every description.’” Beyond due process, however, at least one of these lawsuits has raised dormant commerce clause issues, contending that, by ordering businesses to close, the state is unconstitutionally interfering with Congress’ Article…

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Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

The case of Korematsu v. United States lives in constitutional infamy as the case which upheld the military policy of Japanese internment during WWII. In doing so, the Court—led by former KKK member Justice Black—did not deny that Japanese internment constituted a deprivation of constitutional rights. Instead, they found that the deprivation was justified due to the fact that the United States was at war. Because of this justification, Korematsu is one of several cases which stands for the proposition…

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Closed for Business – Open for Litigation?

Closed for Business – Open for Litigation?

Can a business-closure regulation of commercial property in a pandemic be a taking?  In the midst of a pandemic, it generally falls to government to enact laws and regulations in an effort to curtail the spread of disease. For example, the Supreme Court discusses compulsory vaccination in Jacobson v. Massachusetts and quarantines in Smith v. Turner.  In a liberty-oriented constitutional federalist democratic republic like America, this can be challenging–indeed, the volume of published opinions in this area of law show…

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Surveillance Intrusiveness in a Pandemic

Surveillance Intrusiveness in a Pandemic

Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis. Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using…

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Two Conceptions of Rights: Twenty-Five Years Later

Two Conceptions of Rights: Twenty-Five Years Later

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. It is both gratifying and disheartening to be asked to comment on my now twenty-five-year-old Article, From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights. It is gratifying to think that the thesis of that Article remains worth discussing a quarter of a century later, but disheartening to…

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Role of Private Parties in Public Governance

Role of Private Parties in Public Governance

The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here. In Fragmenting the Unitary Executive, I explored the constitutionality of congressional delegations to private parties outside of the federal government.  The Supreme Court, pursuant to the Due Process Clause, had invalidated a few congressional delegations to private parties earlier in the century (see, e.g., Carter v. Carter Coal)…

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