Article - Virginia Law Review

Trade Administration

At the core of public debates about trade policy making in the United States and the so-called “trade war” is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss is that underlying much of our trade policy in recent decades is a widespread executive-branch-lawmaking apparatus with monitoring, rulemaking, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article excavates that critical underbelly: what I call our “trade administrative state.” It maps the trade administrative state’s statutory and institutional ascent, which I maintain was the product of considerable experimentation in governance schemes developed in response to diverging market trends and normative priorities, the absence of judicial mechanisms to monitor its borders, and a deficiency of administrative law disciplines to respond to its fortification.

This unearthing reveals that the trade administrative state does not operate like the rest of the regulatory state either in form or in process, despite that its actors engage in several conventional regulatory functions. Rather, trade lawmaking is predominantly managed by a single agency, the Office of the United States Trade Representative, and, procedurally, it lacks the hallmarks traditionally associated with administrative law. The Article then evaluates this model in light of administrative law’s aspirations. It demonstrates how our present model of trade administration and its self-policing control mechanisms clash with commonly held scholarly and doctrinal understandings of executive governance.

This assessment of modern trade governance also prescribes certain lessons for how administrative law operates when it comes to certain specialized areas of administration. Surprisingly, despite the fact that trade administration challenges established positivist and process-oriented values, it does so in such a way that may enhance compliance with international law. At a moment when critics raise concern about the President’s disfavor of international trade law and institutions, this study reveals that certain norms may be entrenched in our trade administrative state to counteract those concerns.

Taken together, the Article makes three contributions: First, it identifies and illustrates the experimental history of trade administration. Second, I unpack the distinct features of trade lawmaking as managed by executive branch agencies and draw conclusions about its functions for the way we conceive of trade actors and trade action in our constitutional framework. Finally, the Article analyzes the implications of this revealed structure for administrative law both in process and in content and shows how trade law serves as an unexpected administrative constraint.

Introduction

Legal debates over allocations of power in trade lawmaking have focused on the shift in power from Congress to the President.¹1.See, e.g., Timothy Meyer & Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583, 586–97 (2019); Kathleen Claussen, Separation of Trade Law Powers, 43 Yale J. Int’l L. 315, 316–20 (2018) [hereinafter Claussen, Separation of Trade Law Powers]; John Linarelli, International Trade Relations and the Separation of Powers under the United States Constitution, 13 Dick. J. Int’l L. 203, 204–05 (1995); Harold Hongju Koh, Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha, 18 N.Y.U. J. Int’l L. & Pol. 1191, 1191–92 (1986).Show More But beneath the surface of our separation of trade law powers is a vast trade-lawmaking administrative apparatus with understudied implications. It is the executive branch beyond the President that wields considerable control over trade law outcomes and policy actions. The true driving forces of U.S. trade lawmaking are sited inside the executive and are often out of sight. This Article seeks to precipitate a turn away from thinking about the imposition of congressional controls in trade lawmaking in favor of greater consideration for administrative controls. I argue that the modern trade-lawmaking process is not one shaped by the separation of powers as much as it is by agency administration.

This study considers the work of what I call the “trade administrative state”²2.As I explain further below, the “trade administrative state” refers to a vast landscape of executive branch agencies that write trade rules, monitor the implementation of those rules, adjudicate disputes over their content, and subsequently enforce them in three dimensions—horizontal, vertical, and diagonal. See Subsection II.A.1.Show More—and with some urgency. As recent events have brought the features of our trade administration once again to the fore,³3.See, e.g., Josh Zumbrun, Feliz Solomon & Jeffrey Lewis, U.S.-China Trade War Reshaped Global Commerce, Wall St. J. (Feb. 9, 2020), https://www.wsj.com/articles/u-s-china-trade-war-reshaped-global-commerce-11581244201 [https://perma.cc/CGZ2-3CGX]; Ana Swanson & Jeanna Smialek, U.S. Manufacturing Slumps as Trade War Damage Lingers, N.Y. Times (Jan. 3, 2020), https://www.nytimes.com/2020/01/03/business/manufacturing-trump-trade-war.html [https://perma.cc/3ZC2-2BT9]; Shawn Donnan, Trade Won’t Fade as a Big Disrupter in 2020, Bloomberg (Jan. 2, 2020), https://www.bloomberg.com/news/articles/‌2020-01-02/trade-war-latest-trump-2020-china-tariffs-election-polls [https://perma.cc/7ZQW-FXCZ].Show More commentators have argued for better balance between the President and Congress as a means of correction.⁴4.See, e.g., Philip Wallach, James Wallner & Clark Packard, Is Congress Willing To Assert Responsibility for Trade?, Bulwark (Feb. 3, 2020), https://thebulwark.com/is-congress-willing-to-assert-responsibility-for-trade/ [https://perma.cc/254H-AL5M]; Daniel Griswold, Only Congress Can End the China Trade War Quagmire, Hill (Sept. 11, 2019), https://thehill.com/opinion/international/460920-only-congress-can-end-the-china-trade-war-quagmire [https://perma.cc/D2WK-QQJM]; Jennifer A. Hillman, How To Stop Trump’s Trade War Madness, N.Y. Times (Aug. 11, 2019), https://www.nytimes.com/2019/08/11/–opinion/trump-china-trade.html [https://perma.cc/N4XX-583F]; Clark Packard, Congress Should Take Back Its Authority Over Tariffs, Foreign Pol’y (May 4, 2019) [hereinafter Packard, Congress Should Take Back Its Authority Over Tariffs], https://foreignpolicy.com/2019/05/04/congress-should-take-back-its-authority-over-tariffs-trump/ [https://perma.cc/BME2-XV9C].Show More While those assessments underscore important conversations about the democratic separation of powers generally, they tend to discount the normative and practical entrenchment of trade lawmaking among executive branch agencies.⁵5.To be sure, a considerable literature on the political economy of trade policy has identified this important shift. See, e.g., Douglas A. Irwin, U.S. Trade Policy in Historical Perspective, 6–7 (Nat’l Bureau of Econ. Rsch., Working Paper No. 26,256, 2019) (referring to additional work in the field). Legal scholarship relating to domestic trade institutions, on the other hand, has been more limited, especially in recent years. This Article builds off the foundation of the former to build a conversation in the latter.Show More The delegations from Congress to the President are just the tip of the iceberg with respect to our trade topography. U.S. trade lawmaking is embedded in a much larger administrative structure—parts of which are hidden from Congress, despite its constitutional primacy, and from even the White House. But the story is not just one of structure. Administration is also largely about process. Executive agencies play the most important role in trade lawmaking, and they do so according to sui generis processes subject to little supervision.

This Article provides a thorough descriptive review of modern U.S. trade administration and then evaluates whether our form of trade administration is appropriate or preferred. In so doing, one key feature surfaces: the managerial role played by a single agency created in 1962 called the Office of the United States Trade Representative (“USTR”).⁶6.Trade Expansion Act of 1962, Pub. L. No. 87-794, § 101 et seq., 76 Stat. 872 (codified as amended at 19 U.S.C. § 1801 et seq.).Show More Today, USTR supervises most of our modern trade-lawmaking enterprise, acting as a super-agency similar to the Office of Management and Budget (“OMB”).⁷7.See Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L.J. 2182, 2194–99 (2016) (describing the role of OMB); Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239, 1243 (2017) (discussing the OMB’s super-styled role without using the term); see also David C. Vladeck, O.M.B.: A Dangerous Superagency, N.Y. Times (Sept. 6, 1989), https://www.nytimes.com/‌1989/09/06/opinion/omb-a-dangerous-superagency.html [https://perma.cc/9PVV-XYFM] (warning that OMB “exercises cradle-to-grave control over all regulatory initiatives”).Show More USTR oversees other agency rulemaking and, strikingly, can compel action from other parts of the government.

It was not always this way. The present arrangement is only the latest iteration in a history of experimental trade governance. At the nation’s founding, the regulation of foreign commerce consisted primarily of the issuance of tariff schedules and the negotiation of commercial treaties.⁸8.See infra Section I.A.Show More Congress relied on the President to adjust tariffs in respect of carefully circumscribed situations and counted on the Bureau of Customs to apply the tariff rates on goods at the border.⁹9.Id.Show More These activities involved little discretion by the executive branch. A progressively aggressive delegation of authorities to the President and a movement toward reciprocal arrangements with trading partner countries empowered the executive branch to take on greater authority from the 1890s through the 1930s.¹⁰10.See infra Section I.C.Show More By the middle of the twentieth century, trade lawmaking had become an exercise of an extensive legal machinery—not just in content but also in institutional form. While Congress continued to guide its substance, the diminished congressional role eventually heralded a new mode of governance with distinct features that have since characterized the way U.S. trade law is made.

This Article presents the details of this structural change. It demonstrates how the trade administrative state today is deeply entrenched and remarkably complex. To practice in this area is to develop a niche specialization in a distinctive administrative universe. Thus, one purpose of this Article is to review the undervalued legal system of foreign trade regulation: to chronicle the statutory and institutional rise of this multifarious system and to situate it empirically at the core of modern trade law.

This functional appraisal illuminates another layer of trade administration: its characteristic administrative law traits—or rather, the lack of administrative disciplines that apply. At first glance, one might think the positive story of trade lawmaking just mirrors that of either regular administrative lawmaking or of foreign affairs lawmaking. Some observers may see this as a sort of extension of the work of the OMB.¹¹11.OIRA Pages, The White House, https://www.whitehouse.gov/omb/information-regulatory-affairs/ [https://perma.cc/5G4J-SYYV] (last visited Jan. 29, 2021); see also Nestor M. Davidson & Ethan J. Leib, Regleprudence—at OIRA and Beyond, 103 Geo. L.J. 259, 268–70 (2015) (examining Office of Information and Regulatory Affairs (“OIRA”) practice as a form of executive lawmaking).Show More But in ways unlike other areas of executive branch lawmaking, trade-lawmaking agencies are sites of administrative innovation. They make law not through the standard administrative law playbook but regularly rework it from the ground up. Only some features of trade lawmaking are subject to the Administrative Procedure Act (APA).¹²12.See 5 U.S.C. §§ 500–04, 551–59, 561–84, 591–96, 701–06. I return to the question of whether trade falls within the APA’s foreign-affairs exception infra at note 219 and accompanying text.Show More A great deal of trade agency action is not subject to either conventional notice-and-comment procedures or judicial review.¹³13.See infra Section III.A.Show More In many trade-related congressional delegations to agencies, the form and content of administrative process, if any is specified, is left to the agency’s discretion. These notable omissions raise questions both for administrative law’s reach as well as for trade law’s accountability, transparency, and legitimacy. The result is a form of administrative governance that is characterized more by experimentation and haphazardness than by accountability and rule-of-law values.

Most surprising about this account is that USTR intervenes in the domestic rulemaking process where it finds that rules proposed by other agencies are not compliant with international trade law. Thus, one overlooked feature of the trade administrative state is that it has elements that both reject administrative law features and inject international law primacy into the administrative process. At a moment when critics raise concern about the future of international trade law and institutions, this study reveals that certain norms are entrenched in our trade administrative state to counteract those concerns.

The stakes of trade administration have only continued to grow. Congress has delegated vast authorities of different types to these agencies such that the choice between a “free trade” policy or a more “protectionist” policy is left almost entirely to the executive.¹⁴14.For an overview of the delegations made by Congress to the executive with respect to both free trade and protectionism, see generally Kathleen Claussen, Trade’s Security Exceptionalism, 72 Stan. L. Rev. 1097, 1109–26 (2020) [hereinafter Claussen, Trade’s Security Exceptionalism].Show More Take, for example, the Trump administration’s so-called “trade war.” Under the current model, the process for imposing tariffs on products is an administrative process. Agencies carry out investigations, make determinations, and either act on the President’s direction or provide their findings to the President for his ultimate decision. Those agencies also implement the tariffs and adjudicate which products and industries will be exempted from those tariffs. Critically, and unexpectedly, the trade war has illustrated that when these agencies engage in trade lawmaking, they are subject to a different set of rules and regulations and processes than many agencies that act exclusively domestically.¹⁵15.This is not to suggest that all domestic agencies subscribe to a singular process, but rather to capture how the typical agency controls are not as salient as they would be in the traditional domestic administrative law textbook depiction.Show More Our recent extensive tariff exercise has helped bring to light this discrepancy in practice and may provide a guide to how stakeholders can advocate for change or an end to the warring tariffs. Thus, shifting the lens of our focus to trade administration helps us to deconstruct the trade war and contextualize it within broader notions of regulatory authority.

The study’s descriptive content motivates its positive and normative conclusions. From a policy perspective, modern trade administration has both benefits and drawbacks. The costs of trade administration—such as its lack of transparency and democratic inputs—may be outweighed by its international-law-enhancing functions. But the costs and benefits are not mutually exclusive. The absence of traditional administrative law mandates may provide necessary expertise, flexibility, and compliance with international law, but they can also be abused in the way that administrative law’s proponents have feared. This dilemma raises the question whether it is possible to create a principled approach to trade lawmaking that fosters compliance and coherence, but that also addresses the fundamental participatory and democratic principles that administrative law endorses.¹⁶16.Again, this question is one with which the political economy literature has wrestled, but which legal scholarship has not confronted in detail in some time. The picture of trade administration has evolved since those prior accounts as discussed further below. See infra Section II.A.Show More

I argue that a different way forward is possible, even if handicapped by a certain degree of path dependence and entrenchment, and that more ought to be done to consider administrative principles in trade law. We can strengthen administrative law values in trade law without losing the important coordinating and rule-enforcing features of the present system. When done well, an administrative law approach to trade could lessen the pressure on congressional-executive politics and take advantage of agency expertise while also creating an opportunity for administrative review. Judicial review is an important check on agency rulemaking that could be enhanced without considerable overhaul of the present system. Administrative law structures can hold agencies accountable for providing appropriate justifications and abiding by statutory requirements.

Finally, a critical examination of trade administration is of pressing importance as Congress, courts, and legal scholars debate new forms of trade governance and institutional frameworks for trade law and lawmaking.¹⁷17.See, e.g., Am. Inst. for Int’l Steel v. United States, 806 Fed. App’x 982, 990–91 (Fed. Cir. 2020); Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1281–83 (Ct. Int’l Trade 2019); Transpacific Steel LLC v. United States, 415 F. Supp. 3d 1267, 1272–76 (Ct. Int’l Trade 2019); Rep. DelBene Introduces Bill To Prohibit the Use of IEEPA To Impose Tariffs, Inside U.S. Trade (June 28, 2019), https://insidetrade.com/trade/rep-delbene-introduces-bill-prohibit-use-ieepa-impose-tariffs [https://perma.cc/TU7F-8CPT]; Rep. Murphy Introduces Bill To Give Congress a Say in National Security Tariffs, Inside U.S. Trade (June 25, 2019), https://insidetrade.com/trade/rep-murphy-introduces-bill-give-congress-say-national-security-tariffs [https://perma.cc/UB69-KWG7]; GOP Bill Would Require Congressional Approval of IEEPA Declarations, Inside U.S. Trade (June 20, 2019), https://insidetrade.com/trade/gop-bill-would-require-congressional-approval-ieepa-declarations [https://perma.cc/7YFK-663U]; Isabelle Hoagland, Sens. Lankford, Coons Divided on USMCA Timing, United on Need for Tariff Legislation, Inside U.S. Trade (June 13, 2019), https://insidetrade.com/daily-news/sens-lankford-coons-divided-usmca-timing-united-need-tariff-legislation [https://perma.cc/BC79-KDJH]; New Kaine-Carper Bill Would Give Congress Broader Trade Authorities, Influence, Inside U.S. Trade (Mar. 27, 2019), https://insidetrade.com/trade/new-kaine-carper-bill-would-give-congress-broader-trade-authorities-influence [https://perma.cc/XFV2-AAD2]; Lawmakers Introduce Bill To Delay Potential Auto Tariffs, Inside U.S. Trade (Mar. 14, 2019), https://insidetrade.com/daily-news/lawmakers-introduce-bill-delay-potential-auto-tariffs [https://perma.cc/XF6P-QG2Z].Show More This evaluation allows policy makers to assess the practical operation and costs and benefits of changing or abandoning the existing model, which may be especially important in periods of political transition.

The Article proceeds in four parts. Part I describes the anterior three eras of trade-lawmaking governance in historical perspective and theorizes the foundations of the trade administrative state. It analyzes the evolution both structurally and functionally by identifying key statutes and institutional moves made by all three branches. As this Part demonstrates, a confluence of factors led to the increased responsibility for a variety of agencies in trade lawmaking.

Part II introduces the idea of modern trade administration and maps out major institutional design choices. The bulk of this Part presents newly gathered legislative and executive materials to establish the breadth of agency and sub-agency involvement in trade lawmaking and its hierarchical, expansive, and multifaceted structure of today’s foreign commercial regulatory framework. I document the ways in which the executive branch trade apparatus has flourished to the point of making USTR a manager, rather than an agent as is traditionally believed, when it comes to U.S. trade law. This Part captures the hallmarks of managerial trade administration that set USTR apart from other agencies. Taken individually, each of USTR’s many roles is not especially noteworthy, but taken together, they make USTR distinctive in under-explored ways.

Part III turns to normative issues, analyzing doctrinal, practical, and policy benefits and drawbacks. I argue that this managerial model exacerbates concerns about interest group capture in some ways by removing such engagements from judicial review and the public eye. But it also has the unexpected benefit of enhancing U.S. commitments to international trade law. Thus, on the one hand, such an approach to trade governance improves U.S. adherence to international law and streamlines a considerable array of cross-border economic policy, but, on the other, it does so at the expense of traditional positivist and process-oriented values.

Finally, Part IV considers lessons for why the trade administrative state and its legal limits matter for ongoing structural and doctrinal debates. I refer to this as trade law’s “unfinished business.”

Two caveats are in order. First, this Article tries to capture the most important pieces of trade lawmaking. There are some areas where the managerial model has less salience, but the Article seeks to confront why and how that fragmentation in trade governance surfaced. Second, given its breadth and opacity, no single essay could fully canvass trade administration. I intend to set out a preliminary review and to note areas that cannot be addressed in this space.

* Associate Professor, University of Miami School of Law, and Senior Fellow, Georgetown University Law Center Institute of International Economic Law. I am grateful for helpful comments from and conversations with Curt Bradley, Elena Chachko, Steve Charnovitz, Harlan Cohen, Charlton Copeland, Evan Criddle, Michael Froomkin, Jean Galbraith, James Gathii, Monica Hakimi, Oona Hathaway, Larry Helfer, Duncan Hollis, Gary Horlick, Sharon Jacobs, Irene Oritseweyinmi Joe, Anne Joseph O’Connell, Lili Levi, Tim Meyer, Jide Nzelibe, Eloise Pasachoff, Shalev Roisman, Michael Sant’Ambrogio, Andres Sawicki, Gabriel Scheffler, Steve Schnably, Lisa Schultz Bressman, Peter Shane, Ganesh Sitaraman, Kevin Stack, Elizabeth Trujillo, Pierre-Hugues Verdier, Marcia Weldon, Bill Widen, Ingrid Wuerth, David Zaring, and participants in the Duke Journal of International and Comparative Law Symposium, Georgetown University Law Center IIEL Workshop, University of Colorado School of Law Faculty Workshop, Vanderbilt Law Faculty Workshop, the World Trade Institute Summer Lunchtime Workshop, and the Junior Administrative Law Scholars Workshop hosted by Yale Law School. Special thanks to my former government colleagues who offered their time and expertise, sharing views on unwritten aspects of the internal workings of today’s U.S. trade-lawmaking system, and to UM Law Librarians Bianca Anderson and Pam Lucken for their extensive assistance hunting down legislative and executive documents. Finally, I am grateful to the Virginia Law Review editorial team, especially Christopher Baldacci, Katherine Graves, and Jordan Walsh. ↑
See, e.g., Timothy Meyer & Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583, 586–97 (2019); Kathleen Claussen, Separation of Trade Law Powers, 43 Yale J. Int’l L. 315, 316–20 (2018) [hereinafter Claussen, Separation of Trade Law Powers]; John Linarelli, International Trade Relations and the Separation of Powers under the United States Constitution, 13 Dick. J. Int’l L. 203, 204–05 (1995); Harold Hongju Koh, Congressional Controls on Presidential Trade Policymaking After I.N.S. v. Chadha, 18 N.Y.U. J. Int’l L. & Pol. 1191, 1191–92 (1986). ↑
As I explain further below, the “trade administrative state” refers to a vast landscape of executive branch agencies that write trade rules, monitor the implementation of those rules, adjudicate disputes over their content, and subsequently enforce them in three dimensions—horizontal, vertical, and diagonal. See Subsection II.A.1. ↑
See, e.g., Josh Zumbrun, Feliz Solomon & Jeffrey Lewis, U.S.-China Trade War Reshaped Global Commerce, Wall St. J. (Feb. 9, 2020), https://www.wsj.com/articles/u-s-china-trade-war-reshaped-global-commerce-11581244201 [https://perma.cc/CGZ2-3CGX]; Ana Swanson & Jeanna Smialek, U.S. Manufacturing Slumps as Trade War Damage Lingers, N.Y. Times (Jan. 3, 2020), https://www.nytimes.com/2020/01/03/business/manufacturing-trump-trade-war.html [https://perma.cc/3ZC2-2BT9]; Shawn Donnan, Trade Won’t Fade as a Big Disrupter in 2020, Bloomberg (Jan. 2, 2020), https://www.bloomberg.com/news/articles/‌2020-01-02/trade-war-latest-trump-2020-china-tariffs-election-polls [https://perma.cc/7ZQW-FXCZ]. ↑
See, e.g., Philip Wallach, James Wallner & Clark Packard, Is Congress Willing To Assert Responsibility for Trade?, Bulwark (Feb. 3, 2020), https://thebulwark.com/is-congress-willing-to-assert-responsibility-for-trade/ [https://perma.cc/254H-AL5M]; Daniel Griswold, Only Congress Can End the China Trade War Quagmire, Hill (Sept. 11, 2019), https://thehill.com/opinion/international/460920-only-congress-can-end-the-china-trade-war-quagmire [https://perma.cc/D2WK-QQJM]; Jennifer A. Hillman, How To Stop Trump’s Trade War Madness, N.Y. Times (Aug. 11, 2019), https://www.nytimes.com/2019/08/11/–opinion/trump-china-trade.html [https://perma.cc/N4XX-583F]; Clark Packard, Congress Should Take Back Its Authority Over Tariffs, Foreign Pol’y (May 4, 2019) [hereinafter Packard, Congress Should Take Back Its Authority Over Tariffs], https://foreignpolicy.com/2019/05/04/congress-should-take-back-its-authority-over-tariffs-trump/ [https://perma.cc/BME2-XV9C]. ↑
To be sure, a considerable literature on the political economy of trade policy has identified this important shift. See, e.g., Douglas A. Irwin, U.S. Trade Policy in Historical Perspective, 6–7 (Nat’l Bureau of Econ. Rsch., Working Paper No. 26,256, 2019) (referring to additional work in the field). Legal scholarship relating to domestic trade institutions, on the other hand, has been more limited, especially in recent years. This Article builds off the foundation of the former to build a conversation in the latter. ↑
Trade Expansion Act of 1962, Pub. L. No. 87-794, § 101 et seq., 76 Stat. 872 (codified as amended at 19 U.S.C. § 1801 et seq.). ↑
See Eloise Pasachoff, The President’s Budget as a Source of Agency Policy Control, 125 Yale L.J. 2182, 2194–99 (2016) (describing the role of OMB); Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Mich. L. Rev. 1239, 1243 (2017) (discussing the OMB’s super-styled role without using the term); see also David C. Vladeck, O.M.B.: A Dangerous Superagency, N.Y. Times (Sept. 6, 1989), https://www.nytimes.com/‌1989/09/06/opinion/omb-a-dangerous-superagency.html [https://perma.cc/9PVV-XYFM] (warning that OMB “exercises cradle-to-grave control over all regulatory initiatives”). ↑
See infra Section I.A. ↑
Id. ↑
See infra Section I.C. ↑
OIRA Pages, The White House, https://www.whitehouse.gov/omb/information-regulatory-affairs/ [https://perma.cc/5G4J-SYYV] (last visited Jan. 29, 2021); see also Nestor M. Davidson & Ethan J. Leib, Regleprudence—at OIRA and Beyond, 103 Geo. L.J. 259, 268–70 (2015) (examining Office of Information and Regulatory Affairs (“OIRA”) practice as a form of executive lawmaking). ↑
See 5 U.S.C. §§ 500–04, 551–59, 561–84, 591–96, 701–06. I return to the question of whether trade falls within the APA’s foreign-affairs exception infra at note 219 and accompanying text. ↑
See infra Section III.A. ↑
For an overview of the delegations made by Congress to the executive with respect to both free trade and protectionism, see generally Kathleen Claussen, Trade’s Security Exceptionalism, 72 Stan. L. Rev. 1097, 1109–26 (2020) [hereinafter Claussen, Trade’s Security Exceptionalism]. ↑
This is not to suggest that all domestic agencies subscribe to a singular process, but rather to capture how the typical agency controls are not as salient as they would be in the traditional domestic administrative law textbook depiction. ↑
Again, this question is one with which the political economy literature has wrestled, but which legal scholarship has not confronted in detail in some time. The picture of trade administration has evolved since those prior accounts as discussed further below. See infra Section II.A. ↑
See, e.g., Am. Inst. for Int’l Steel v. United States, 806 Fed. App’x 982, 990–91 (Fed. Cir. 2020); Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1281–83 (Ct. Int’l Trade 2019); Transpacific Steel LLC v. United States, 415 F. Supp. 3d 1267, 1272–76 (Ct. Int’l Trade 2019); Rep. DelBene Introduces Bill To Prohibit the Use of IEEPA To Impose Tariffs, Inside U.S. Trade (June 28, 2019), https://insidetrade.com/trade/rep-delbene-introduces-bill-prohibit-use-ieepa-impose-tariffs [https://perma.cc/TU7F-8CPT]; Rep. Murphy Introduces Bill To Give Congress a Say in National Security Tariffs, Inside U.S. Trade (June 25, 2019), https://insidetrade.com/trade/rep-murphy-introduces-bill-give-congress-say-national-security-tariffs [https://perma.cc/UB69-KWG7]; GOP Bill Would Require Congressional Approval of IEEPA Declarations, Inside U.S. Trade (June 20, 2019), https://insidetrade.com/trade/gop-bill-would-require-congressional-approval-ieepa-declarations [https://perma.cc/7YFK-663U]; Isabelle Hoagland, Sens. Lankford, Coons Divided on USMCA Timing, United on Need for Tariff Legislation, Inside U.S. Trade (June 13, 2019), https://insidetrade.com/daily-news/sens-lankford-coons-divided-usmca-timing-united-need-tariff-legislation [https://perma.cc/BC79-KDJH]; New Kaine-Carper Bill Would Give Congress Broader Trade Authorities, Influence, Inside U.S. Trade (Mar. 27, 2019), https://insidetrade.com/trade/new-kaine-carper-bill-would-give-congress-broader-trade-authorities-influence [https://perma.cc/XFV2-AAD2]; Lawmakers Introduce Bill To Delay Potential Auto Tariffs, Inside U.S. Trade (Mar. 14, 2019), https://insidetrade.com/daily-news/lawmakers-introduce-bill-delay-potential-auto-tariffs [https://perma.cc/XF6P-QG2Z]. ↑
See, e.g., Meyer & Sitaraman, supra note 1, at 597–612 (discussing how delegations shifted authority from Congress to the President); Jide O. Nzelibe, The Illusion of the Free-Trade Constitution, 19 N.Y.U. J. Legis. & Pub. Pol’y 1, 2–3 (2016); Koh, supra note 1, at 1192–93 (“[T]he President has historically asserted dominance over international trade . . . .”). ↑
Compare Nzelibe, supra note 18, at 8 (“legislative altruism”), with Meyer & Sitaraman, supra note 1, at 609 (“abdication”). ↑
To be sure, some would say it does. See, e.g., I.M. Destler, American Trade Politics 33 (4th ed. 2005). They point to the fact that Congress is the only constitutionally empowered branch. U.S. Const. art. I, § 8, cl. 3. But those same scholars do not deny that Congress has the opportunity to delegate its authority as necessary. Destler, supra note 20, at 32. ↑
Cf. Meyer & Sitaraman, supra note 1, at 586–612 (describing only two paradigms). My analysis does not take issue with the two paradigms that Meyer and Sitaraman set out; rather, it intends to complement that important project and take up the explicit and implicit structural modes within those governing paradigms. ↑
U.S. Const. art. I, § 8, cl. 1, 3. ↑
See Cory Adkins & David Singh Grewal, Two Views of International Trade in the Constitutional Order, 94 Tex. L. Rev. 1495, 1516 (2016) (referring to authorizations made to Washington, Adams, and Jefferson to embargo ships). At that time and for many years trade was related to war. The United States fought wars over trade and fought wars through trade. Trade was inextricably linked to the existence of the nation. Id. at 1517. ↑
In July 1789, the second Act of Congress established a system of tariffs on imported “goods and merchandises” while the third Act established tariffs on the tonnage of ships. Already in Congress’ earliest days, there was a debate about the proper objectives of a tariff, but most salient was the need for revenue. Act of July 4, 1789, ch. 2, 1 Stat. 24; Act of July 20, 1789, ch. 3, 1 Stat. 27. ↑
Act of July 31, 1789, ch. 5, 1 Stat. 29. ↑
Act of Aug. 7, 1789, ch. 9, 1 Stat. 53. ↑
Act of Aug. 4, 1790, ch. 35, §§ 62–64, 1 Stat. 145. ↑
Act of May 27, 1796, ch. 31, 1 Stat. 474. ↑
Act of July 16, 1798, ch. 77, 1 Stat. 605. ↑
Act of Sept. 2, 1789, ch. 12, 1 Stat. 65. ↑
John F. Coyle, The Treaty of Friendship, Commerce and Navigation in the Modern Era, 51 Colum. J. Transnat’l L. 302, 307 (2013). Although these FCN treaties were popular into the twentieth century, their impact on foreign commerce diminished. In fact, most FCN treaty provisions were incorporated into other areas of U.S. law. Id. at 341–43 (describing the ways the treaty provisions “fade[d] into near-irrelevance”). ↑
See, e.g., Treaty of Amity and Commerce Between His Majesty the King of Prussia, and the United States of America, Prussia-U.S., art. 4, Sept. 10, 1785, 8 Stat. 84. ↑
See Jean Galbraith, International Law and the Domestic Separation of Powers, 99 Va. L. Rev. 987, 1013–14 (2013). ↑
See, e.g., Message Transmitting a Report of the Secretary of State on the Spoliations Committed on the Commerce of the United States (Mar. 5, 1794), in 1 American State Papers: Foreign Relations 423, 423–24 (Walter Lowrie & Matthew St. Clair Clarke eds., 1833) (describing with concern the attacks on U.S. merchants and the need for greater authority to combat such attacks). ↑
Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 820–29 (1995) (“Early statutes imposed this duty on the President, typically requiring him to issue a proclamation giving each complying country a clean bill of health. We call these ‘proclamation statutes,’ and they have been very common.”). ↑
Act of Feb. 9, 1799, ch. 2, § 4, 1 Stat. 613. ↑
Act of Dec. 19, 1806, ch. 1, § 3, 2 Stat. 411. ↑
Act of June 4, 1794, ch. 41, 1 Stat. 372 (authorizing the President to lay an embargo on ships as necessary “whenever . . . the public safety shall so require”); Act of Feb. 9, 1799, ch. 2, § 4, 1 Stat. 613 (making it lawful for the President to draw back restrictions on trade that Congress enacted “if he shall deem it expedient and consistent with the interest of the United States” or “whenever, in his opinion, the interest of the United States shall require”); Act of Dec. 19, 1806, ch. 1, § 3, 2 Stat. 411; Act of April 22, 1808, ch. 52, 2 Stat. 490 (authorizing the President to suspend a trade embargo for certain vessels “on such bond and security being given as the public interest . . . require”). ↑
Act of Mar. 3, 1815, ch. 77, 3 Stat. 224 (emphasis added). ↑
For a more robust discussion of the President’s tariff-related fact-finding in the context of fact-finding more generally, see Shalev Roisman, Presidential Factfinding, 72 Vand. L. Rev. 825, 849 (2019). ↑
Act of Mar. 3, 1817, ch. 39, 3 Stat. 361–62; Act of Jan. 7, 1824, ch. 4, § 4, 4 Stat. 2; Act of May 24, 1828, ch 111, § 1, 4 Stat. 308; Act of May 31, 1830, ch. 219, § 2, 4 Stat. 425; Act of June 26, 1884, ch. 121, § 14, 23 Stat. 53. ↑
See, e.g., Act of Mar. 6, 1866, ch. 12, 14 Stat. 3 (allowing suspension of the prohibition “whenever the Secretary of the Treasury shall officially determine” that importation of certain cattle would not spread infectious disease). ↑
See S. Rep. No. 73-871, at 1–2 (1934) (“The committee has inserted the words ‘as a fact’ following the words in subsection (a) ‘the President, whenever he finds.’ This is to make clear that Congress under the proposed bill is establishing a policy and directing the Executive to act in accordance with the congressional policy only when he finds as a fact that existing duties or other import restrictions are unduly burdening and restricting the foreign trade of the United States. In the same provision, to the words ‘existing duties or other import restrictions’ the words ‘of the United States or any foreign country’ have been added to clarify the meaning.”). ↑
See Alfred E. Eckes, Opening America’s Market: U.S. Foreign Trade Policy Since 1776, at 70–74 (1995). ↑
Id. (noting that Secretary of State Blaine revives the idea and urges President Harrison to request authority). ↑
Act of Oct. 1, 1890, ch. 1244, 26 Stat. 567. ↑
Section 3 of the Act provided that certain commodities would be admitted free of duties, but that the President could impose specified rates against nations charging “unequal and unreasonable” duties on U.S. commodities. Id. § 3; see also Field v. Clark, 143 U.S. 649, 680–91 (1892) (holding that Section 3 was not an unconstitutional delegation of legislative and treaty-making authority to the President); Douglas A. Irwin, Clashing Over Commerce: A History of U.S. Trade Policy 304 (2017) [hereinafter Irwin, Clashing Over Commerce]; H.R. Rep. No. 73-1000, at 9 (1934) (recognizing the President’s power under Section 3 and noting the Field decision); Francis B. Sayre, The Constitutionality of the Trade Agreements Act, 39 Colum. L. Rev. 751, 761–62 (1939) (discussing presidential action in protectionist trade policy generally); Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 Yale L.J. 140, 173–74 (2009) (noting this started a transformation in U.S. international lawmaking). ↑
143 U.S. at 694; see also id. at 699–700 (Lamar, J., dissenting) (commenting that this Act ought to be distinguished as it is clearly lawmaking). Interestingly, and somewhat ironically, the Court has developed major principles of administrative law through trade-related cases such as Field and others taken up below. In the twenty-first century, trade-related administrative law has been significantly curtailed. ↑
Wilson-Gorman Tariff Act of 1894, ch. 349, § 71, 28 Stat. 509, 569; see also Harold U. Faulkner, The Decline of Laissez Faire, 1897–1917, 59–60 (1977) (discussing the politics of tariffs in the years after the Wilson-Gorman Act); Eckes, supra note 44, at 70 & 70 n.39 (discussing congressional opposition to executive reciprocity agreements in 1884). ↑
The Dingley Tariff Act of 1897 authorized the President again to negotiate reciprocal tariff agreements with an eye to lowering tariffs with trading partners. Dingley Tariff Act of 1897, ch. 11, § 3, 30 Stat. 151, 203. The 1922 Fordney McCumber Tariff Act again empowered the President to adjust tariff rates under the condition that the Tariff Commission so advised. Fordney-McCumber Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–46. ↑
In President Taft’s inauguration in 1909, he called for Congress to give him still greater authority, but also noted that any such action was a congressional prerogative. William Howard Taft, Inaugural Address (Mar. 4, 1909), in 1 Presidential Addresses and State Papers of William Howard Taft: From March 4, 1909 to March 4, 1910, at 53, 55 (1910) (“It is imperatively necessary, therefore, that a tariff bill be drawn . . . and as promptly passed as due consideration will permit. . . . I venture this as a suggestion only, for the course to be taken by Congress, upon the call of the Executive, is wholly within its discretion.”). Warren G. Harding, Inaugural Address (Mar. 4, 1921), in Inaugural Addresses of the Presidents of the United States: From George Washington 1789 to George Bush 1989 237, 243–44 (1989). ↑
H.R. Rep. No. 73-1000, at 10 (1934). ↑
Id. ↑
Payne-Aldrich Tariff Act of 1909, ch. 6, § 2, 36 Stat. 11, 82–83. ↑
See U.S. Int’l Trade Comm’n, The Economic Effects of Significant U.S. Import Restraints 65 (6th ed. 2009) (“Prior to the 1930 act, tariff changes were viewed as entirely the domain of Congress.”); see also Hal Shapiro & Lael Brainard, Trade Promotion Authority Formerly Known As Fast Track: Building Common Ground on Trade Demands More Than a Name Change, 35 Geo. Wash. Int’l L. Rev. 1, 6 (2003) (“Prior to the twentieth century U.S. regulation of foreign commerce was almost exclusively a congressional prerogative . . . .”); Ian F. Fergusson, Cong. Rsch. Serv., RL33743, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy 2–3 (2015). (“For roughly the first 150 years of the United States, Congress exercised its authority over foreign trade by setting tariff rates on all imported products.”). ↑
As the Supreme Court confirmed in Field v. Clark: “There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation.” 143 U.S. 649, 694 (1892). ↑
Revenue Act of 1916, Pub. L. No. 64-271, ch. 463, § 700, 39 Stat. 756, 795. ↑
On several different occasions since 1865, tariff boards were set up by Congress or in some instances by executive order for specific studies, but none would be permanent. For example, a tariff commission was established in 1882 with nine members. It was appointed to report to Congress on recommended tariff rate changes. Report of the Tariff Commission, H.R. Misc. Doc. No. 47-6, pt. 1., at 1, 5, 7 (1882). Upon doing so, it ceased to function. The Trade Act of 1971: A Fundamental Change in United States Foreign Trade Policy, 80 Yale L.J. 1418, 1424 n.31 (1971); Act of May 15, 1882, Pub. L. No. 47-145, ch. 145, 22 Stat. 64; see also U.S. Tariff Comm’n, The Tariff and Its History 97–100 (1934) (describing nine non-permanent bodies created between 1865 and 1922 to study tariff-related issues). Likewise, in 1911, a three-member Tariff Board was established pursuant to congressional funding thereof to look into the tariff schedule for wool and woolens. Act of Mar. 4, 1911, Pub. L. No. 61-525, ch. 285, 36 Stat. 1363. Other non-permanent agencies were created in 1865, 1866, 1888, 1909, and 1912. See generally J. Bernhardt, The Tariff Commission: Its History, Activities and Organization 3–14 (1922) (providing an overview of the activities of seven government bodies tasked with studying tariff-related issues between 1865 and 1912). ↑
Irwin, Clashing Over Commerce, supra note 47, at 356–57. ↑
Id. at 356–57, 362–64. ↑
Anti-Dumping Act of 1921, Pub. L. No. 67-10, ch. 14, § 201-202, 42 Stat. 9, 11–12. ↑
James Pomeroy Hendrick, The United States Antidumping Act, 58 Am. J. Int’l L. 914, 932 (1964) (noting just 73 findings of dumping between 1921 and 1964). From 1934 to 1954 there were only seven findings of dumping. Douglas A. Irwin, The Rise of US Anti-dumping Activity in Historical Perspective, 28 World Econ. 651, 659 (2005). In 1954, this responsibility was transferred to the ITC. Irwin, supra, at 659. ↑
CBP Timeline, U.S. Customs & Border Prot., https://www.cbp.gov/about/history/‌timeline-static-view [https://perma.cc/W7BP-7LEF] (last visited Mar. 8, 2021). ↑
See Act of May 15, 1862, Pub. L. No. 37-72, 12 Stat. 387, 387 (establishing USDA to “procure . . . and distribute . . . valuable seeds and plants”). ↑
See Eckes, supra note 44, at 99. ↑
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 410–11 (1928). In that case, an importer contested the imposition of a duty of six cents per pound on barium dioxide, two cents more than in the 1922 statute, after a 1924 proclamation by President Calvin Coolidge. The Supreme Court ruled that the delegation of authority was constitutional because the President was carrying out the will of Congress in changing the duty. Id. at 400, 411. ↑
The use of a principal-agent framework as an analytical tool for understanding congressional-executive relations in foreign affairs is not entirely novel in practice or scholarship. Ed Swaine has described that there was a time when:

[D]iplomats were regarded as personal agents of a head of state, and could be viewed in terms of a conventional principal-agent relationship, but identifying the principal (conceivably, the head of state, a legislature, or the state itself), the agent . . . , and the nature and consequences of delegated authority became less straightforward.

Edward T. Swaine, Unsigning, 55 Stan. L. Rev. 2061, 2068 (2003). Daniel Abebe has proposed viewing Congress as principal and the President as its agent in foreign affairs generally. In contrast to my study, Abebe seeks to determine “the appropriate level of deference to the President” based on a balancing of internal and external constraints to “ensure that the President is a faithful agent” while also ensuring the President has enough “latitude to achieve congressional goals.” Daniel Abebe, The Global Determinants of U.S. Foreign Affairs Law, 49 Stan. J. Int’l L. 1, 53 (2013). ↑
See, e.g., Claussen, Trade’s Security Exceptionalism, supra note 14, at 1109. For example, Section 3(e) of the National Industrial Recovery Act gave the President the power to use import quotas or fees to regulate any imports found to “render ineffective or seriously to endanger the maintenance of any code or agreement.” Pub. L. No. 73-67, § 3, 48 Stat. 195, 197 (1933) (codified at 15 U.S.C. § 703, terminated by Exec. Order 7252). ↑
As early as 1923, Secretary of State Charles Evans Hughes sent a confidential circular to American diplomatic officers notifying them that the President had authorized the Secretary of State to negotiate commercial treaties with other countries by which to accord each other unconditional most-favored-nation treatment. 1 Papers Relating to the Foreign Relations of the United States, 1923, H.R. Doc. No. 68-397, at 131 (1938). ↑
U.S. Tariff Comm’n, Sixth Annual Report 2 (1922). ↑
Id. ↑
Presidential Press Conference (June 9, 1933), in 1 Complete Presidential Press Conferences of Franklin D. Roosevelt, 1933, 364, 368–70 (1972). ↑
Irwin, Clashing Over Commerce, supra note 47, at 425. ↑
Nzelibe, supra note 18, at 7 (“For many scholars, congressional delegation was the crucial constitutional innovation that ultimately overcame interest group capture.”) (noting also that political economy scholars are skeptical). As David Lake has commented, the important difference of the RTAA as compared to prior delegations was that it delegated multiple authorities simultaneously. David A. Lake, Power, Protection, and Free Trade: International Sources of U.S. Commercial Strategy, 1887–1939, at 205 (1988). ↑
Reciprocal Trade Agreements Act of 1934, Pub. L. No. 73-316, ch. 474, 48 Stat. 943 (codified as amended in scattered sections of 19 U.S.C.). ↑
Id. at 945. ↑
Harry C. Hawkins & Janet L. Norwood, The Legislative Basis of United States Commercial Policy, in Studies in United States Commercial Policy 69, 100 (William B. Kelly, Jr. ed., 1963). ↑
Id. at 101. See also Harry C. Hawkins, Administration of the Trade Agreements Act, 1944 Wis. L. Rev. 3, 8–9 (1944); Henry J. Tasca, The Reciprocal Trade Policy of the United States: A Study in Trade Philosophy 49–50 (1938). ↑
Some temporary advisory positions came and went. See, e.g., Exec. Order No. 6,651, 3 The Public Papers and Addresses of Franklin D. Roosevelt 158, 158–60 (Mar. 23, 1934) (creating a special trade advisor). ↑
See, e.g., Exec. Order No. 9,832, 3 C.F.R. Supp. 126, 127 (1947) (creating the Committee); Exec. Order No. 6,651, 3 The Public Papers and Addresses of Franklin D. Roosevelt 158, 158–60 (Mar. 23, 1934) (creating the Office of the Special Adviser to the President on Foreign Trade). ↑
For greater detail, see Daniel K. Tarullo, Law and Politics in Twentieth Century Tariff History, 34 UCLA L. Rev. 285, 286 (1986). ↑
Historically, “neither the Bureau of Customs nor any other agency was empowered to set or change tariff rates as such.” Id. ↑
Stephen D. Cohen, The Making of United States International Economic Policy: Principles, Problems, and Proposals for Reform 17 (5th ed. 2000). One can speculate if this was due to capture or for some other reason. Compare to the experience in interstate commerce or public utilities. ↑
Fordney-McCumber Act of 1922, Pub. L. No. 67-318, ch. 356, § 315, 42 Stat. 858, 941–43. ↑
Tarullo, supra note 81, at 319 (noting that it was structured to be scientific). ↑
Id. at 313. ↑
From 1922 to 1929, more than 600 petitions covering 375 commodities were filed with the Commission and only 47 investigations covering 55 commodities were completed. U.S. Tariff Comm’n, Thirteenth Annual Report 10 (1929). ↑
Lake, supra note 74, at 196. ↑
Tarullo, supra note 81, at 350–51. ↑
Id.; see also Extension of the Reciprocal Trade Agreements Act: Hearings on H.J. Res. 407 Before the H. Comm. on Ways & Means, 76th Cong. 491–500 (1940) (statement of A. Manuel Fox, Member, U.S. Tariff Comm’n) (describing the State Department’s role in overseeing the Tariff Commission and its procedures for cooperation with other agencies); Grace Beckett, The Reciprocal Trade Agreements Program 18 (1941) (describing the State Department’s role in initiating new trade agreements with countries). ↑
The State Department ran the Committee for Reciprocity Information, for one. U.S. Dep’t of State, 41 Dep’t of State Bull. No. 1,054, at 354–55 (Sept. 7, 1959). ↑
William A. Foster & Co. v. United States, 20 C.C.P.A. 15, 22 (1932). ↑
The idea of identifying managers in the law is not new either in the domestic or international context. I adopt the term here as a further extension and new application of the concept—one that I believe more aptly captures what is happening in trade. I do not subsequently adopt all the same consequences that prior commentators have identified in their spaces, but I draw on them for inspiration. For other iterations, see, e.g., Bijal Shah, Congress’s Agency Coordination, 103 Minn. L. Rev. 1961, 2058 (2019) (referring to the President as a manager of the executive branch); Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 3 (1995) (examining international law compliance through a managerial model); Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374, 378 (1982) (referring to judges as managers of their cases). ↑
Jeff Dunoff identified some of the same trends as they began. Jeffrey L. Dunoff, “Trade and”: Recent Developments in Trade Policy and Scholarship—And Their Surprising Political Implications, 17 Nw. J. Int’l L. & Bus. 759, 760 (1997). ↑
Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 14, 1994, 1867 U.N.T.S. 154, http://www.wto.org/english/docs_e/legal_e/15-sps.pdf [https://perma.cc/MG9R-CTQK]. ↑
Id. ↑
Dispute Settlement, WTO, https://www.wto.org/English/tratop_e–/dispu_e/dispu_e.htm [https://perma.cc/7U6A-4T76]. ↑
See, e.g., Simon Lester, The Role of the International Trade Regime in Global Governance, 16 UCLA J. Int’l L. & Foreign Affs. 209, 211–12, 221–38 (2011) (providing an overview of the expansion of trade agreements). ↑
This “problem” could be considered a feature more than a bug by those that use trade law to regulate and enforce international commitments in newfound areas. I have explored this double-edged sword in other work. See Kathleen Claussen, Our Trade Law System, 73 Vand. L. Rev. En Banc 195, 198–201 (2020). ↑
146 Cong. Rec. 6,805–06 (2000). ↑
Id. at 6,806. Most of USTR’s offices were established this way. Only three are mentioned in statute: two in “sense of Congress” statements and one referring to the responsibilities of the Assistant United States Trade Representative for Industry and Telecommunications (a role that no longer exists as such). 19 U.S.C. §§ 3724, 4208, 3812. For example, the Trade and Development Act of 2000 included a “sense of Congress” statement, making note of the importance of having an Assistant United States Trade Representative for African Affairs. Pub. L. No. 106-200, § 117, 114 Stat. 251, 267 (2000) (codified at 19 U.S.C. § 3724). More recently, Congress has created specific positions at the ambassador rank such as the Chief Agricultural Negotiator, Chief Innovation and Intellectual Property Negotiator, and Chief Transparency Officer. Id. at 293. ↑
Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, § 102, 129 Stat. 320 (codified at 19 U.S.C. § 4201). USTR likewise indicates that it is monitoring agreements for compliance in topics as diverse as financial services and tomato paste. See, e.g., Off. of the U.S. Trade Representative, 2020 Trade Policy Agenda and 2019 Annual Report 8, 165 (2020) [hereinafter 2019 Annual Report], https://ustr.gov/‌sites/default/files/2020_Trade_Policy_Agenda_and_2019_Annual_Report.pdf [https://perma.cc/GKT7-4M3E]. ↑
Authorizing Customs and Border Protection and Immigration and Customs Enforcement: Hearing Before the Subcomm. on Border & Mar. Sec. of the H. Comm. on Homeland Sec., 113th Cong. 18 (2014) (statement of Kevin K. McAleenan, Acting Deputy Comm’r, U.S. Customs & Border Prot.). At least seventeen agencies, engaged in some exercise of trade policy making, regularly conduct U.S. trade and international economic functions under various statutory and administrative authorities. U.S. Gen. Acct. Off., GAO-00-76, Strategy Needed to Better Monitor and Enforce Trade Agreements 4 (2000) [hereinafter GAO-00-76]. ↑
For example, the Commerce Department facilitates the trade remedies program as set out in 19 U.S.C. chapter 4. See 19 U.S.C. § 1339. The Treasury also engages in major economic regulation through engagement in international affairs. See David Zaring, Administration by Treasury, 95 Minn. L. Rev. 187, 212–13 (2010). ↑
See generally Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. No. 114-125, 130 Stat. 122 (2016) (scattered sections). ↑
See generally U.S. Dep’t of Agric., Trade Policies and Procedures, https://www.usda.gov/topics/trade/trade-policies-and-procedures (providing an overview of the various trade programs that the USDA has in place for “commodities and agricultural products”) [https://perma.cc/P9JQ-HKHX] (last visited Jan. 30, 2021). ↑
See Shayerah I. Akhtar, Cong. Rsch. Serv., IF11016, U.S. Trade Policy Functions: Who Does What? (2020). We could add more to this executive trade landscape such as the Export-Import Bank, which “finances and insures U.S. exports of goods and services”; the Small Business Administration, which administers grants in support of trade; or the agencies that support trade capacity building or that promote economic growth in developing countries, such as United States Agency for International Development, United States International Development Finance Corporation, and the Trade and Development Agency. See id. ↑
See Thomas R. Graham, The Reorganization of Trade Policymaking: Prospects and Problems, 13 Cornell Int’l L.J. 221, 228 & n.38 (1980). Even the Federal Emergency Management Agency took on new trade tasks during the COVID-19 pandemic. See Export Allocation Rule on Medical Supplies and Equipment for COVID-19, FEMA, https://www.fema.gov/fact-sheet/fema-implementation-allocation-order-exports-scarce-ppe-and-notice-exemptions [https://perma.cc/R5ER-YZ8S] (last visited Jan. 30, 2021). ↑
Cohen, supra note 83, at 46 (discussing the “crowding out” of the State Department). ↑
See About the USITC, U.S. Int’l Trade Comm’n, https://www.usitc.gov/press_room/‌about_usitc.htm [https://perma.cc/8EPB-7FY7] (last visited Jan. 30, 2021). ↑
Off. of the U.S. Trade Representative, Charter of the Advisory Committee for Trade Policy and Negotiations (2018), https://ustr.gov/sites/default/files/files/about/ACTPN%‌20Charter%202018-2022%20USTR.pdf [https://perma.cc/YR5J-X5FK]. ↑
Off. of the U.S. Trade Representative, Advisory Committees, https://ustr.gov/about-us/advisory-committees [https://perma.cc/24US-G53A] (last visited Jan. 30, 2021). ↑
Daniel K. Tarullo, Beyond Normalcy in the Regulation of International Trade, 100 Harv. L. Rev. 546, 595–96 (1987) (noting that lower-level committees composed chiefly of civil servants develop information). ↑
Id. ↑
See Kathleen Claussen, Trade Executive Agreements 10–14 (unpublished manuscript) (on file with the author) [hereinafter Claussen, Trade Executive Agreements] (describing a category of trade lawmaking—trade executive agreements—that is a mix of free trade agreements, solo executive agreements, and rules issued by agencies, has largely grown out of recent practice, and is thus understudied). ↑
Trade Expansion Act of 1962, Pub. L. No. 87-794, § 241, 76 Stat. 872, 878 (codified as amended at 19 U.S.C. § 1801). ↑
Graham, supra note 108, at 224–25 (describing the role of the trade representative in the early years of the position); H.R. Rep. No. 93-571, at 40 (1973) (“[T]he position was created to provide both better focus and centralized direction for treating trade negotiations and trade problems from an overall commercial point of view—and to downplay the strictly foreign policy orientation . . . of the Department of State.”). ↑
H.R. Rep. No. 93-571, at 40 (1973) (declaring that the USTR was created “with the implicit intention of providing the Congress with a focal point in the executive branch”). ↑
Exec. Order No. 11,075, 3 C.F.R. 692–96 (1963); Trade Expansion Act § 242. ↑
Trade Expansion Act § 241(a). ↑
Id. ↑
Id. § 241(b), 76 Stat. at 878. ↑
History of the United States Trade Representative, Off. of the U.S. Trade Representative, https://ustr.gov/about-us/history [https://perma.cc/3YYL-DX6B] (last visited Apr. 19, 2021). ↑
Id. ↑
Fred O. Boadu & Jie Shen, An Empirical Analysis of the Growth and Autonomy of the Office of the United States Trade Representative, 6 Currents: Int’l Trade L.J. 3, 9 (1997). ↑
Id. ↑
Id. ↑
See Exec. Off. of the President, Office of the United States Trade Representative: Fiscal Year Budget 2021, at 6 (2020), https://ustr.gov/sites/default/files/foia–/USTR%20FY%20‌2021%20Congressional%20Budget%20Submission.pdf [https://perma.cc/KGP6-LT4T]. ↑
In a recent symposium, I summarized the historical and legal foundations for fast-track. Kathleen Claussen, Trading Spaces: The Changing Role of the Executive in U.S. Trade Lawmaking, 24 Ind. J. Glob. Legal Stud. 345, 351–52, 351 n.18 (2017). ↑
Trade Act of 1974, Pub. L. No. 93-618, § 141, 88 Stat. 1978, 1999 (codified as amended at 19 U.S.C. § 2171). These moves reflected a congressional interest in enhancing executive authority while also maintaining control on the executive’s work in the trade space: “We have also endeavored to articulate an appropriate cooperative role for the Congress and the executive branch in an effort to come to grips with these very complex problems and issues in which delegation of congressional authority is needed.” H.R. Rep. No. 93-571, at 15 (1973); see also Claussen, Trading Spaces, supra note 129, at 350–54 (providing an overview of the balancing of the trade-policy roles and responsibilities that Congress and the executive branch hold); 15 C.F.R. § 2001.3 (2020) (establishing that the U.S. Trade Representative reports to and is responsible to both the executive branch and Congress). ↑
See, e.g., To Create a Department of International Trade and Investment: Hearing on S. 1990 Before the S. Comm. on Governmental Affs., 95th Cong. 1 (1978) (statement of Sen. William V. Roth, Member, Comm. on Governmental Affs.); Reorganizing the Government’s International Trade and Investment Functions: Hearing on S. 377, S. 891, S. 937, S. 1471, and S. 1493 Before the S. Comm. on Governmental Affs., 96th Cong. 2, 44, 47 (1979) (statements of Sen. Robert C. Byrd and Adlai E. Stevenson); Proposed Foreign Trade Reorganization: Hearings Before a Subcomm. of the H. Comm. on Gov’t Operations, 96th Cong. 2–4 (1979) (statement of Rep. Frank Horton); Federal Government International Trade Function Reorganization: Hearings Before the Subcomm. on Trade of H. Comm. on Ways & Means, 96th Cong. 114–16 (1979) (statement of William N. Walker, Vice Chairman, Com. Pol’y Comm., U.S. Council of the Int’l Chamber of Com.); International Trade and Investment Reorganization Act, H.R. 3859, 96th Cong. § 2(b) (1979). ↑
Reorganization Plan No. 3 of 1979, 44 Fed. Reg. 69,273 (proposed Sept. 25, 1979); see Graham, supra note 108, at 222 & n.5 (1980) (discussing inter-branch communications on reorganization). ↑
Reorganization Plan No. 3 of 1979, § 1(b), 44 Fed. Reg. 69,273 (proposed Sept. 25, 1979). ↑
Shayerah Ilias, Cong. Rsch. Serv., R42555, Trade Reorganization: Overview and Issues for Congress 11 (2012). ↑
Trade Agreements Act of 1979, Pub. L. No. 96-39, §§ 411, 413, 93 Stat. 144, 243–44 (codified as amended at 19 U.S.C. §§ 2541, 2543). ↑
Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1601(a)(1), 102 Stat. 1107, 1260 (codified as amended at 19 U.S.C. § 2171(c)). ↑
See id. § 1601(a)(2), 102 Stat. at 1261. ↑
See, e.g., id. § 1301(a), 102 Stat. at 1164 (granting the USTR authority to respond to the denial or violation of U.S. trade rights under any trade agreement, subject only to any “specific direction” from the President). ↑
See, e.g., Memorandum, 70 Fed. Reg. 43,251 (July 21, 2005) (delegating authority under Section 337 of the Tariff Act of 1930); Proclamation 6,942, 61 Fed. Reg. 54,719 (Oct. 17, 1996) (delegating authority related to the Generalized System of Preferences); Exec. Order No. 12,964, 60 Fed. Reg. 33,095 (June 21, 1995) (stating that the USTR shall perform the functions of the President under the Federal Advisory Committee Act); Exec. Order No. 12,661, 54 Fed. Reg. 779 (Dec. 27, 1988) (delegating the authority of the President to the USTR under the 1988 Act). This is especially true up until the early 2000s when USTR grew in influence and size. Many statutory delegations to USTR come from statutes enacted in the last 30 years. See, e.g., Uruguay Round Agreements Act, Pub. L. No. 103-465, § 122(b), 108 Stat. 4809, 4829 (Dec. 8, 1994) (codified at 19 U.S.C. § 3532) (specifying that the USTR has lead responsibility on matters related to the World Trade Organization). ↑
See, e.g., Exec. Order No. 12,964, 60 Fed. Reg. at 33,095 (creating a Commission on United States-Pacific Trade and Investment Policy); Exec. Order No. 12,870, 58 Fed. Reg. 51,753 (Sept. 30, 1993) (creating the Trade Promotion Coordinating Committee); Exec. Order No. 12,905, 59 Fed. Reg. 14,733 (Mar. 25, 1994) (creating the Trade and Environment Policy Advisory Committee within the Office of the United States Trade Representative). ↑
This arrangement was part of the point of creating the USTR in the first place: to take this power away from Congress where interest groups dominated. ↑
See, e.g., USTR Announces New Office to Monitor China Deal’s Implementation, Handle Disputes, Inside U.S. Trade (Feb. 14, 2020), https://insidetrade.com/trade/ustr-announces-new-office-monitor-china-deals-implementation-handle-disputes [https://perma.cc/AU6J-955Q]. ↑
Cf. 15 C.F.R. § 2001.2 (1975) (establishing the Office as consisting of the United States Trade Representative and two Deputy Trade Representatives). ↑
H.R. Rep. No. 93-571, at 40–41 (1973) (noting that there has not been enough coordination with Congress from 1962 to 1973 and expecting that the USTR would be “speaking for the United States and the Congress in the forthcoming multilateral trade negotiations”). ↑
For a sampling of relevant statutes, see Staff of H.R. Comm. on Ways & Means, 113th Cong., Compilation of U.S. Trade Statutes, at v–xi (Comm. Print 2013). ↑
Trade Act of 1974, Pub. L. No. 93-618, § 141(c), 88 Stat. 1978, 1999. ↑
Nor is USTR subject to the levels of litigation that other agencies are subject to as discussed in Parts III and IV, but it does hold hearings on some of its investigations. By comparison, CBP has issued 289 rules, 91 proposed rules, and 2,673 notices since it was created in 2003; the ITC issued 44 rules, 30 proposed rules, and 8,194 notices in the same period (1995–2019); the ITA issued 72 rules, 57 proposed rules, and 18,937 notices in the same period. ↑
Trade Act § 301 (codified as amended at 19 U.S.C. § 2411). ↑
19 U.S.C. § 2411. See also Erwin P. Eichmann & Gary N. Horlick, Political Questions in International Trade: Judicial Review of Section 301?, 10 Mich. J. Int’l L. 735, 742 (1989) (explaining both the mandatory and discretionary actions that the USTR must take for violations of trade agreements or harm to U.S. commerce). ↑
Trade Act § 301(b) (codified as amended at 19 U.S.C. § 2411(b)). This authority was shifted to USTR and away from the President in the 1988 Act. Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, § 1301, 102 Stat. 1107, 1164 (codified as amended at 19 U.S.C. § 2411). ↑
Section 301 addresses the activities of U.S. firms abroad and interference by foreign governments to the detriment of U.S. firms. See Judith Hippler Bello & Alan F. Holmer, U.S. Trade Law and Policy Series #10: Significant Recent Developments in Section 301 Unfair Trade Cases, 21 Int’l Law. 211, 213–15 (1987). ↑
Whether USTR’s imposition of tariffs under Section 301 is subject to the APA despite the statute’s lack of a clear statement is under consideration at the CIT at the time of writing. HMTX Indus. LLC v. United States, No. 20-00177 (Ct. Int’l Trade filed Sept. 10, 2020). Section 301 sets out a process for USTR to reach its determination but whether that supersedes USTR’s obligations under the APA and whether the application of Section 301 falls within the APA’s foreign-affairs exception are live questions. ↑
To be sure, the statute does provide for a public hearing in certain circumstances. See, e.g., 19 U.S.C. §§ 2412(a)(4), 2414(b)(1)(A). But that is not always the case in USTR’s actions nor does the statute set out procedures for how the public hearing is conducted. The statute provides a type of functional notice and comment. ↑
This has occurred most recently in USTR’s exclusion process related to the Section 301 tariffs on products from China. See Gary Clyde Hufbauer & Zhiyao Lu, The USTR Tariff Exclusion Process: Five Things to Know About These Opaque Handouts, Peterson Inst. for Int’l Econ. (Dec. 19. 2019), https://www.piie.com/blogs/trade-and-investment-policy-watch/ustr-tariff-exclusion-process-five-things-know-about-these [https://perma.cc/33N8-QJUZ]. ↑
See, e.g., Isabelle Icso, White House Requests $6 Million Boost for USTR in FY2021 Budget Proposal, Inside U.S. Trade (Feb. 11, 2020, 2:47 PM), https://insidetrade.com/daily-news/white-house-requests-6-million-boost-ustr-fy2021-budget-proposal [https://perma.cc/5B3R-MFFT]. ↑
See, e.g., Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, § 103, 129 Stat. 320, 333 (codified as amended 19 USC § 4202). ↑
See, e.g., U.S.-Japan Trade Agreement Text, Off. of the U.S. Trade Representative, https://ustr.gov/countries-regions/japan-korea-apec/japan/us-japan-trade-agreement-negotiations/us-japan-trade-agreement-text [https://perma.cc/2Q2E-ST6X ] (last visited Apr. 19, 2021) (“eliminat[ing] or reduc[ing] tariffs on certain agricultural and industrial products”). The term “trade executive agreement” is mine and the subject of a separate project, a manuscript of which is on file with the author. See Claussen, Trade Executive Agreements, supra note 115, at 3. ↑
This is a matter of debate. See Claussen, Trade Executive Agreements, supra note 115, at 10–12. ↑
See Claussen, Trade’s Security Exceptionalism, supra note 14, at 1149–51. ↑
For some past relevant commentary insofar as international economic negotiations are concerned, see David Zaring, Sovereignty Mismatch and the New Administrative Law, 91 Wash. U. L. Rev

.

59, 84 (2013) (discussing how there is no role for the process requirements of the APA where agencies negotiate rules with foreign counterparts). ↑
Id. at 83 (commenting that the threat of judicial review may have led to an expansion in detail in administrative agencies’ work). ↑
While administrative constraints need not be the only types of constraints on an agency, USTR also is subject to limited congressional or presidential oversight as I and others have noted in previous work. See, e.g., Koh, supra note 1, at 1204–06, 1213–14. ↑
Monitoring and Enforcement Actions, Off. of the U.S. Trade Representative, https://ustr.gov/issue-areas/enforcement/monitoring-and-enforcement-actions [https://perma.cc/6ASE-SD2H] (last visited Jan. 30, 2021). ↑
Trade Facilitation and Trade Enforcement Act of 2015, Pub. L. No. 114-125, § 604, 130 Stat. 122, 185–87 (codified at 19 U.S.C. § 2171(h)) (establishing the Interagency Center on Trade Implementation, Monitoring, and Enforcement). ↑
It does most of this work through the Trade Policy Staff Committee. See Interagency Role, Off. of the U.S. Trade Representative, https://ustr.gov/about-us/interagency-role [https://perma.cc/27SR-KXSC] (last visited Jan. 30, 2021) (noting that 20 agencies and offices participate under USTR’s oversight, reviewing hundreds of lawmaking documents each year); see also Akhtar, supra note 107 (“Cabinet-level review on trade issues is through the Trade Policy Committee (TPC).”). ↑
As noted by a U.S. General Accounting Office (today called the Government Accountability Office, GAO) study, USTR is mandated to “identify[] compliance problems, set[] priorities, gather[] and analyze[] information, develop[] and implement[] responses, and tak[e] actions.” GAO-00-76, supra note 103, at 15–16. ↑
You can see this increase in the number of attorneys rather than economists. Id. at 18. ↑
Much of this work is done behind the scenes but occasionally USTR’s work with other agencies in their rulemaking may come out in litigation as the other agencies note their international trade law constraints. See, e.g., Nat. Res. Def. Council, Inc. v. Dep’t of Agric., 613 F.3d 76, 85–86 (2d Cir. 2010) (in which the Animal and Plant Health Inspection Service of USDA contextualizes its rulemaking within international trade law); Miss. Poultry Ass’n v. Madigan, 992 F.2d 1365, 1362 (5th Cir. 1993), amended by, 9 F.3d 1113 (5th Cir. 1993), on reh’g, 31 F.3d 293 (5th Cir. 1994) (in which the Secretary of Agriculture’s interpretation of a standard was informed not just by the U.S. commitments under the World Trade Organization but also under free trade agreement rules); Nat’l Coal Against the Misuse of Pesticides v. Thomas, 809 F.2d 875, 877 (D.C. Cir. 1987) (describing changes in the Environmental Protection Agency’s rulemaking in light of international trade concerns). ↑
See, e.g., Foreign Supplier Verification Programs for Importers of Food for Humans and Animals, 79 Fed. Reg. 58,574 (Sept. 29, 2014) (to be codified at 21 C.F.R. pt. 1). ↑
See Interview with USTR official (Nov. 10, 2020). This is one of several interviews and conversations carried out with USTR officials during research for this Article. ↑
See Claussen, Trade’s Security Exceptionalism, supra note 14, at 1107. ↑
Other enforcers of different aspects of trade law include CBP, Commerce, the ITC, and the Court of International Trade (“CIT”). ↑
19 U.S.C. § 2171(e). ↑
19 U.S.C. § 2171(f). ↑
A 1934 congressional report described its intended delegation to the Executive as “Congress Determines the Policy—The President Executes.” H.R. Rep. No. 73-1000, at 14 (1934). Little today in trade policy follows that heading, which epitomizes how trade governance worked in prior eras. ↑
See, e.g., Irwin, Clashing Over Commerce, supra note 47, at 435 fig.9.1. ↑
Not even the GAO has a clear organizational chart to capture this engagement. It has tried. Compare GAO-00-76, supra note 103, at 48–50 tbl.3 (table indexing lead responsible agencies with reporting mechanisms) with U.S. Gov’t Accountability Off., GAO-06-167, USTR Would Benefit from Greater Use of Strategic Human Capital Management Principles 6 fig.1 (2000) (using a hierarchical chart to illustrate USTR organizational structure). ↑
See, e.g., Bureau of Int’l Labor Affs., U.S. Dep’t of Labor, 15-2378-NAT, US and Honduras Sign Landmark Labor Rights Agreement (Dec. 9, 2015), https://www.dol.gov/newsroom/releases/ilab/ilab20151209 [https://perma.cc/GKE7-RGLQ]. ↑
See, e.g., United States-Mexico-Canada Agreement Implementation Act, Pub. L. 116-113, §§ 202A(b), 711, 134 Stat. 11, 34, 81 (2020) (to be codified at 19 U.S.C. § 4532). ↑
Robert E. Hudec, Thinking About the New Section 301: Beyond Good and Evil, in Aggressive Unilateralism: America’s 301 Trade Policy and the World Trading System 113, 122 (Jagdish Bhagwati & Hugh T. Patrick eds., 1990) (asserting that one needs a diagram to trace all the authorities of Section 301 that makes up an “intricate maze” with “extremely wide loopholes”). Again, some commentators may find this to be precisely what was intended as Congress built this system. The political economy literature has covered that territory well. ↑
It is perhaps closest to a blend between the White House Office of Legal Counsel and the Office of Management and Budget—just trade-specific. ↑
Cf. Pasachoff, supra note 7, at 2207–08 (describing how OMB controls policy making through its budget process in ways somewhat similar to USTR’s controls over trade-related policy making). ↑
See, e.g., Harold H. Bruff, Presidential Management of Agency Rulemaking, 57 Geo. Wash. L. Rev. 533, 546–52 (1989); Charles F. Bingman, The President as Manager of the Federal Government, 35 Proc. Acad. Pol. Sci. 146, 147–49 (1985). ↑
Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1692 (2017). ↑
That is, USTR can choose to impose tariffs or it can negotiate free trade agreements. See Claussen, Trade’s Security Exceptionalism, supra note 14, at 1163. ↑
See, e.g., Press Release, Off. of the U.S. Trade Representative, United States and China Reach Phase One Trade Agreement (Dec. 13, 2019), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2019/december/united-states-and-china-reach [https://perma.cc/UAE2-DSTR]. ↑
See infra Section II.C. ↑
See, e.g., Sylvan Lane, Five Key Players in Trump’s Trade Battles, Hill (Aug. 20, 2019, 6:00 AM), https://thehill.com/policy/finance/trade/458016-five-key-players-in-trumps-trade-battles [https://perma.cc/Z379-HTY9] (last visited Jan. 30, 2021). ↑
Discussing one of these options, see Graham, supra note 108, at 230 n.41; see also I.M. Destler, Making Foreign Economic Policy 213–14 (1980) (explaining why that option was not viable). ↑
See, e.g., Stuart E. Eizenstat, Unsettling a Delicate Balance, N.Y. Times, (June 19, 1983), https://www.nytimes.com/1983/06/19/business/business-forum-unsettling-a-delicate-balance.html [https://perma.cc/AK7Y-MDT2]. ↑
See, e.g., id. (discussing attempts to change during the Kennedy, Carter, and Reagan administrations); Press Release, The White House, President Obama Announces Proposal to Reform, Reorganize and Consolidate Government (Jan. 13, 2012), https://obamawhitehouse.archives.gov/the-press-office/2012/01/13/president-obama-announces-proposal-reform-reorganize-and-consolidate-gov [https://perma.cc/WZR6-WWD8]; see also Timothy Meyer & Ganesh Sitaraman, It’s Economic Strategy, Stupid, Am. Affs. J. (Feb. 20, 2019), https://americanaffairsjournal.org/2019/02/its-economic-strategy-stupid/ [https://perma.cc/HX6Z-ZRCP] (noting that the Obama administration proposed merging the Department of Commerce, Small Business Administration, USTR, Export-Import Bank, Overseas Private Investment Corporation, and U.S. Trade and Development Agency). ↑
Executive reorganizations are no longer legally facilitated, which has shifted pressure within the White House to find other ways to make structural changes and to deal with personalities. See Abbe R. Gluck, Anne Joseph O’Connell & Rosa Po, Unorthodox Lawmaking, Unorthodox Rulemaking, 115 Colum. L. Rev. 1789, 1818–22 (2015). ↑
There are also some smaller processes that do not envision a strong role for USTR like Section 232 of the Trade Expansion Act of 1962, especially if they were created simultaneously with or before USTR’s creation. Pub. L. 87-794, § 232, 76 Stat. 872, 877 (codified as amended at 19 U.S.C. § 1862). ↑
See 28 U.S.C. § 1581. ↑
See, e.g., 19 C.F.R. § 201.7 (2020). ↑
Trade Act of 1974, Pub. L. No. 93-618, § 341, 88 Stat. 1978, 2053–54. ↑
This empowerment was much slower than other empowerments of other commissions which is why it is unusual—most could regulate, but not so with ITC until 1974. Tarullo, supra note 113, at 581 & n.109. ↑
John M. Dobson, Two Centuries of Tariffs: The Background and Emergence of the U.S. International Trade Commission 119 (1976). ↑
Id. at 132. ↑
These concerns bear some resemblance to the problems we see in other EOP super-agencies. See, e.g., Pasachoff, supra note 7, at 2250–71. ↑
See, e.g., Patrice McDermott & Emily Manna, Secrecy, Democracy and the TPP: Trade Transparency Is What the Public Wants—and Needs, Hill (Sept. 12, 2016, 7:30 AM), https://thehill.com/blogs/congress-blog/economy-budget/295365-secrecy-democracy-and-the-tpp-trade-transparency-is-what [https://perma.cc/2PA3-N7DG]. ↑
Bipartisan Congressional Trade Priorities and Accountability Act of 2015, Pub. L. No. 114-26, § 104(f), 129 Stat. 320, 342 (codified as amended at 19 U.S.C. § 4203). Some members of Congress expressed concern that the role has been vacant during the Trump administration. See, e.g., Press Release, Rep. Debbie Dingell, Dingell, Pascrell Demand Increased Transparency at USTR (Mar. 29, 2018), https://debbiedingell.house.gov/news/‌documentsingle.aspx?DocumentID=1359 [https://perma.cc/RT2Y-YU5P]. ↑
Meyer & Sitaraman, supra note 1, at 635. ↑
Off. of the Inspector Gen., Dep’t of Com., OIG-20-003-M, Management Alert: Certain Communications by Department Officials Suggest Improper Influence in the Section 232 Exclusion Request Review Process (2019). ↑
See, e.g., David Shepardson, Trump Administration Won’t Turn Over Auto Import Probe Report, Defying Congress, Reuters (Jan. 21, 2020, 12:56 PM), https://www.reuters.com/article/us-usa-trade/trump-administration-wont-turn-over-auto-import-probe-report-defying-congress-idUSKBN1ZK2A1 [https://perma.cc/W86W-HYLV]. ↑
See David Zaring, Rulemaking and Adjudication in International Law, 46 Colum. J. Transnat’l L. 563, 565 (2008). ↑
I draw here from Jerry Mashaw’s foundational work on the subject. See Jerry L. Mashaw, Accountability and Institutional Design: Some Thoughts on the Grammar of Governance, in Public Accountability: Designs, Dilemmas and Experiences 115, 121 (Michael W. Dowdle ed., 2006). ↑
Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 Mich. L. Rev. 2073, 2135 (2005). ↑
See, e.g., Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Administrative State: A Critical Look at the Practice of Presidential Control, 105 Mich. L. Rev. 47, 52 (2006). This study provides additional support for the phenomena that Bressman and Vandenbergh describe in their important work. For one, there is much more happening in OIRA review than meets the eye. ↑
And it did. For some examples, see Claussen, Trade Executive Agreements, supra note 115. ↑
Missing from the literature is a comprehensive study of the congressional consultation power—its scope, meaning, and implication. Other scholars have likewise noted its prevalence. See, e.g., Lucas Issacharoff & Samuel Issacharoff, Constitutional Implications of the Cost of War, 83 U. Chi. L. Rev. 169, 185 & n.81 (2016) (discussing and citing sources on congressional oversight in war powers as requiring consultation). In the case of USTR, this responsibility primarily involves reporting to congressional committees. Different statutes also provide for members of Congress to be designated congressional advisors, accredited to advise USTR particularly with respect to negotiations. See, e.g., Trade Act of 1974, Pub. L. No. 93-618, § 161, 88 Stat. 1978, 2008. ↑
See Frederick Davis, The Regulation and Control of Foreign Trade, 66 Colum. L. Rev. 1428, 1459–60 (1966). ↑
A third difficulty that I will take up further below in the context of reform is the challenge of establishing standing. ↑
As Davis puts it, it is “[p]residential button-pushing.” Davis, supra note 212, at 1458. ↑
Administrative Procedure Act § 2, 5 U.S.C. § 551; see also Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) (holding that the President was not an “agency” within the meaning of the APA). ↑
For a recent application, see Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1281–83 (Ct. Int’l Trade 2019). ↑
Interestingly, it is more often the statutes that pre-date the APA that were amended to refer to the APA than those that came after. But bear in mind again that only a fraction of USTR’s authority comes from statute. Where powers are subdelegated, presidents rarely specify process. Courts may find determinative a difference between authorities for direct action delegated to USTR by Congress, authorities subdelegated by the President, or authorities for making recommendations to the President delegated by Congress. For example, compare Trade Act of 1974, Pub. L. No. 93-618, § 301, 88 Stat. 1978, 2141–42 (subdelegated by President), and id. § 201, 88 Stat. at 2011–12 (delegated by Congress), with Tariff Act of 1930, Pub. L. No. 361, § 337, 46 Stat. 590, 703–04 (delegated by Congress). ↑
Under such generally applicable statutes as the Federal Records Act and the Freedom of Information Act, USTR is considered an “agency.” Off. of the U.S. Trade Representative, USTR Instruction 511.2, USTR Records Mgt. Program (2010) https://ustr.gov/sites/‌default/files/uploads/gsp/speeches/reports/IP/ACTA/about%20us/reading%20room/USTR%20Instruction%20511-2%20Records%20Management%20Program.pdf [https://perma.cc/NBY5-VRGZ] (internal guidance recognizing USTR as an “agency” subject to the Federal Records Act); Off. of the U.S. Trade Representative, FOIA Reference Guide, https://ustr.gov/about-us/reading-room/freedom-information-act-foia/foia-reference-guide [https://perma.cc/CEC8-CT29] (last visited Mar. 8, 2020) (indicating that USTR is an “agency” subject to FOIA requests). ↑
Invenergy is one of the very few cases that has confronted the question at all. In a preliminary injunction order and opinion in that case, Judge Katzmann concludes that administrative law in its traditional tenets applies broadly to trade law, although it remains to be seen how far this conclusion may stretch and what sorts of USTR rulemaking it sweeps in. 422 F. Supp. 3d 1255, 1288 (Ct. Int’l Trade 2019). As Ganesh Sitaraman has noted, the foreign-affairs exception is itself limited and agencies engaged in foreign-affairs work are still subject to the APA’s protections. Ganesh Sitaraman, Foreign Hard Look Review, 66 Admin. L. Rev. 489, 492–93 (2014). ↑
See Exec. Off. of the President, Memorandum of March 22, 2018: Actions by the United States Related to the Section 301 Investigation of China’s Laws, Policies, Practices, or Actions Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 13,099, 13,100 (Mar. 27, 2018). ↑
See Off. of the U.S. Trade Representative, Procedures to Consider Requests for Exclusion of Particular Products From the Determination of Action Pursuant to Section 301: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 32,181, 32,182 (July 11, 2018) (outlining the process for requesting a product be excluded from proposed tariffs). ↑
Off. of the U.S. Trade Representative, China Section 301—Tariff Actions and Exclusion Process, https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions [https://perma.cc/5Z3V-BEAA] (last visited Apr. 19, 2021) (listing numerous exclusions granted and extended). The Court of International Trade in a recent case decided that USTR’s withdrawal of an exclusion from tariffs imposed by the President under Section 201 of the Trade Act of 1974 was insufficient for administrative law norms. See Invenergy, 422 F. Supp. 3d at 1286–88. It left open the question of what process USTR ought to have used to implement the exclusions in the first place. ↑
Advanced search conducted in Westlaw using party name: “trade /5 representative,” removing FOIA cases, and limiting results to reported cases using a Westlaw filter. Sample cases found with this search include: Forest Stewardship v. USTR, 405 F. App’x 144, 146 (9th Cir. 2010) (“Essentially, the best the Appellants hope for is that a judgment will somehow encourage USTR to renegotiate the SLA with Canada, even though the court lacks the power to direct the executive branch’s conduct of foreign negotiations directly.”); U.S. Ass’n of Importers of Textiles & Apparel v. United States, 350 F. Supp. 2d 1342, 1344, 1350–51 (Ct. Int’l Trade 2004) (granting a preliminary injunction against an interagency committee with USTR only as one of several named defendants while noting only the “seriousness” of the question whether the APA’s rulemaking procedures applied to the committee), rev’d sub nom. U.S. Ass’n of Importers of Textiles & Apparel v. U.S. Dep’t of Com., 413 F.3d 1344, 1345–46, 1350 (Fed. Cir. 2005) (reversing on ripeness grounds and a failure to show likelihood of success on the merits); Silfab Solar, Inc. v. United States, 892 F.3d 1340, 1342 (Fed. Cir. 2018) (involving USTR, but only in relation to a presidential proclamation). ↑
See Daphna Renan, Pooling Powers, 115 Colum. L. Rev. 211, 259–61, 272–73 (2015) (describing legal and political theories that support this claim). ↑
See, e.g., Eamonn Butler, Public Choice—A Primer 88 (2012) (noting public choice theorists who formulated the theory that government bureaucrats have a strong interest in expanding the size and scope of the government sector). ↑
Even if USTR’s actions were to be considered reviewable, many consider it futile to challenge its decisions. Interviews with Trade Pracs. (Jan. 2020) (some even appear to fear retaliation from the government). Beyond the scope of this Article is a further discussion to be had about how trade lawmaking could influence what commentators mean by “rules.” This Article appropriates the term for its explanatory force, but its invocation may also have legal force and therefore may be used selectively by advocates in this context. ↑
See supra Part I. ↑
Press Release, Off. of the U.S. Trade Representative, USTR Statement on Successful Conclusion of Steel Negotiations with Mexico (Nov. 5, 2020), https://ustr.gov/about-us/policy-offices/press-office/press-releases/2020/november/ustr-statement-successful-conclusion-steel-negotiations-mexico [https://perma.cc/VC9W-Q4VK]. ↑
See Claussen, Trade Executive Agreements, supra note 115, at 33–34. ↑
In other forthcoming work, I present original empirical research on more than 1,220 agreements of similar nature. Hundreds of trade executive agreements suffer from the same questionable legality—but the present state of the law permits no challenge to their conclusion and implementation. See Claussen, Trade Executive Agreements, supra note 115, at 7. ↑
Hawkins & Norwood, supra note 77, at 86. ↑
Id. ↑
As it did with the United States-Mexico-Canada Agreement. See Kimberly Ann Elliott, Trump and Pelosi Both Claim Victory on the USMCA. Who Really Won?, World Pol. Rev. (Jan. 7, 2020), https://www.worldpoliticsreview.com/articles/28451/trump-and-pelosi-both-claim-victory-on-the-new-nafta-who-really-won [https://perma.cc/EH8P-3NRD]. ↑
For an example of easy manipulation, see the situation with the Section 232 tariff exclusion process noted above. Lydia DePillis, How Trump’s Trade War Is Making Lobbyists Rich and Slamming Small Businesses, ProPublica (Jan. 6, 2020, 5:00 AM), https://www.propublica.org/article/how-trump-trade-war-is-making-lobbyists-rich-and-slamming-small-businesses [https://perma.cc/T786-DY5S]. I have not taken up here questions of accessibility which are among the non-transparent aspects of USTR’s work, but which may benefit certain actors. ↑
Some have said that the statutory language today still permits action against “virtually any trade practice the USTR wishes to attack.” Alan O. Sykes, Constructive Unilateral Threats in International Commercial Relations: The Limited Case for Section 301, 23 Law & Pol’y Int’l Bus. 263, 306 (1992). ↑
Notably, while Congress could legislate to restrict this type of movement or to re-assign these authorities, it rarely does so. ↑
See, e.g., Exec. Order No. 13,141, 64 Fed. Reg. 63,169 (Nov. 18, 1999) (setting policy to do environmental reviews); Exec. Order No. 13,786, 82 Fed. Reg. 16,721 (Apr. 5, 2017) (calling for a report on deficits); Exec. Order No. 13,601, 77 Fed. Reg. 12,981 (Mar. 5, 2012) (creating the Interagency Trade Enforcement Center); Exec. Order No. 13,785, 82 Fed. Reg. 16,719 (Apr. 5, 2017) (establishing enhanced collection of anti-dumping and countervailing duties); Exec. Order No. 13,796, 82 Fed. Reg. 20,819 (May 4, 2017) (dictating how every trade agreement should uphold certain principles). ↑
See Tarullo, supra note 81, at 317–18 n.114. ↑
This “single responsible authority” concept has been hailed as an improvement. Stanley D. Metzger, Trade Agreements and the Kennedy Round 92 (1964). For the same point in the OIRA context, see Michael A. Livermore, Cost-Benefit Analysis and Agency Independence, 81 U. Chi. L. Rev. 609, 613 (2014); Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities, 126 Harv. L. Rev. 1838, 1841–42 (2013). These positive accounts have led some scholars to call for an expansion or extension of OIRA-type agencies. See Jennifer Nou, Agency Coordinators Outside of the Executive Branch, 128 Harv. L. Rev. F. 64, 65 (2015). ↑
The foreign relations literature is rife with one-voice doctrine analyses. See, e.g., Sarah H. Cleveland, Crosby and the “One-Voice” Myth in U.S. Foreign Relations, 46 Vill. L. Rev. 975, 979 (2001) (describing “[t]he ‘one-voice’ doctrine” as “a familiar mantra of U.S. foreign relations jurisprudence”). As I point out below, having USTR at the center helps, but it is insufficient to ensure that the United States speaks with just one voice in its foreign engagements—in some ways, it has the opposite effect. A more horizontal trade landscape means more agencies are engaged in diagonal rulemaking. ↑
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928). ↑
Caroline Freund & Christine McDaniel, How Long Does It Take To Conclude a Trade Agreement with the US?, Peterson Inst. for Int’l Econ. (July 21, 2016), https://www.piie.com/blogs/trade-investment-policy-watch/how-long-does-it-take-conclude-trade-agreement-us [https://perma.cc/VAP2-GJKJ]. ↑
For an elaboration and list of these agreements, see Claussen, supra note 115. For one illustration: the USDA, together with USTR, negotiated details around trade in sheep offals with China—directly and without congressional review. See U.S. Dep’t of Agric., Economic and Trade Agreement Between the United States of America and the People’s Republic of China Fact Sheet: Agriculture and Seafood Related Provisions 4 (2020), https://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Phase_One_Agreement-Ag_Summary_Long_Fact_Sheet.pdf [https://perma.cc/TCK9-G9ND]; see also Lighthizer: China Deal Will Be an Executive Agreement, Not Submitted to Congress, Inside U.S. Trade (Feb. 27, 2019, 11:15 AM), https://insidetrade.com/trade/lighthizer-china-deal-will-be-executive-agreement-not-submitted-congress [https://perma.cc/KSQ8-XES3] (noting lack of congressional review). ↑
USTR compiles these in an annex to its annual report. See 2019 Annual Report, supra note 102, Annex II. ↑
The Section 232 investigations by the Commerce Department are one example. The statute provides no role for USTR and indeed the steel and aluminum Section 232 investigations began before Ambassador Lighthizer was confirmed by the Senate. See Jacob M. Schlesinger & Natalie Andrews, Senate Confirms Robert Lighthizer as Trump’s U.S. Trade Representative, Wall St. J. (May 11, 2017), https://www.wsj.com/articles/senate-confirms-robert-lighthizer-as-trumps-u-s-trade-representative-1494529048 [https://perma.cc/TD6Q-KC6R]; Bureau of Indus. & Sec. Off. of Tech. Evaluation, U.S. Dep’t of Com., The Effect of Imports of Steel on the National Security 18 (2018), https://www.bis.doc.gov/index.php/documents/steel/2224-the-effect-of-imports-of-steel-on-the-national-security-with-redactions-20180111/file [https://perma.cc/AEC6-MA3H] (noting the 232 investigations began in April 2017). ↑
Interview with Trade Prac., Washington, D.C. (Nov. 21, 2019). These differences can be seen in the jurisprudence of the Court of International Trade. Id. ↑
U.S.-China Trade: Hearing Before the H. Comm. on Ways & Means, 116th Cong. (2020) (testimony of Robert Lighthizer, Ambassador, U.S. Trade Rep.) [hereinafter Lighthizer Testimony] (repeating that the Section 232 national security tariffs were not in “[his] lane”). ↑
See Hawkins & Norwood, supra note 77, at 93–95 (discussing the Hull-Peek controversy in 1934 in which Peek, a special advisor on foreign trade, negotiated an agreement with Germany for cotton but Secretary Hull urged the President to disapprove); see also Ellery C. Stowell, Editorial Comment: Secretary Hull’s Trade Agreements, 29 Am. J. Int’l L. 280, 283 (1935) (discussing allocation of power between State and Commerce). ↑
See, e.g., Sabrina Rodriguez, Lighthizer, Mnuchin and Liu Play Telephone, Politico (Nov. 26, 2019, 10:00 AM), https://www.politico.com/newsletters/morning-trade/2019/‌11/26/lighthizer-mnuchin-and-liu-play-telephone-783072 [https://perma.cc/TM2G-MA9T]; Damian Paletta, Top Trump Trade Officials Still at Odds After Profane Shouting Match in Beijing, Wash. Post (May 16, 2018, 6:42 PM), https://www.washingtonpost.com/news/‌business/wp/2018/05/16/top-trump-trade-officials-still-at-odds-after-profane-shouting-match-in-beijing/ [https://perma.cc/F5ZJ-DC63]; Logan Pauley, Consistent Inconsistency Crippling Trump’s China Trade Ambitions, Hill (May 31, 2018, 8:30 PM), https://thehill.com/opinion/finance/390085-consistent-inconsistency-crippling-trumps-china-trade-ambitions [https://perma.cc/7YNX-8A9S]. ↑
Claussen, Separation of Trade Law Powers, supra note 1, at 326 (describing how this occurs in trade). ↑
Eizenstat, supra note 190 (noting that the administration’s reorganization proposal “would weaken and even further fragment trade policy” putting USTR in a “bulky Commerce Department bureaucracy,” and that the USTR’s “most important asset” is direct access to the President). ↑
USTR cannot be “both a trade advocate and an interagency coordinator.” Id. ↑
Additional work is needed to unpack where the expertise should be and where and how coherence may be valuable in trade institutional design. Administrative law scholars have long studied issues related to capture and expertise. See, e.g., Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51, 94 (2008) (explaining that the Supreme Court has considered whether an administrative actor utilized their expertise in deciding whether to apply Skidmore deference); Steven P. Croley, Regulation and Public Interests: The Possibility of Good Regulatory Government 3–4 (2008) (arguing administrative procedures help to insulate agencies against capture). But see Wendy E. Wagner, Administrative Law, Filter Failure, and Information Capture, 59 Duke L.J. 1321, 1325 (2010) (arguing that transparency requirements in the rulemaking process without proper filtration of information have facilitated what she calls “information capture”—where well-resourced parties inundate regulators with information as a means of influencing them). Little of this work has extended these explorations to traditional trade domains. ↑
This is a flip side of administrative scholars’ critique of OMB and OIRA as selective. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 Colum. L. Rev. 1260, 1266–69 (2006) (criticizing OIRA for its overly narrow focus on regulatory costs); Bressman & Vandenbergh, supra note 209, at 92–96 (critiquing OIRA’s lack of transparency, selectivity, and narrow focus on costs based on interviews with agency officials who have participated in OIRA review). USTR’s review is legalized in contrast. ↑
As Tom Merrill has noted, “to allow the EOP to displace the myriad agencies by becoming the ‘decider’ would weaken legal constraints on administrative action, and deprive affected interests and individuals from having an effective voice in the implementation of regulatory policy.” Thomas W. Merrill, Presidential Administration and the Traditions of Administrative Law, 115 Colum. L. Rev. 1953, 1979–80 (2015). ↑
See, e.g., Zaring, supra note 104, at 212–16 (describing the role of the Treasury Department in international economic lawmaking shaping policies as needed in coordination with international organization). ↑
On the longstanding transmission belt idea in administrative law, see Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1675 (1975). ↑
See generally Meyer & Sitaraman, supra note 1, at 598–601. ↑
See Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. L. Rev. 1897, 1919–24 (2015). ↑
See Lighthizer Testimony, supra note 249, at 18–19; Brief of Defendants-Appellees at 16–17, Am. Inst. for Int’l Steel v. United States, 806 Fed. App’x 982 (Fed. Cir. 2020) (No. 19-1727). ↑
Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1288–89 (Ct. Int’l Trade 2019). ↑
Doug Palmer, Secrecy Needed in Trade Talks: USTR Kirk, Reuters (May 13, 2012, 1:56 PM), https://www.reuters.com/article/us-usa-trade-kirk-idUSBRE84C0AQ20120513 [https://perma.cc/TZ9G-CU4J]. ↑
Lighthizer Testimony, supra note 249, at 18–19. ↑
The Case-Zablocki Act (Case Act for short) requires executive branch agencies to report their international agreements to Congress through the State Department. 1 U.S.C. § 112b. ↑
See Cleveland, supra note 242, at 979. ↑
See, e.g., Brief of Defendants-Appellees at 20, Am. Inst. for Int’l Steel v. United States, 806 Fed. App’x 982 (Fed. Cir. 2020) (No. 19-1727). ↑
See, e.g., Am. Inst. for Int’l Steel v. United States, 806 F. App’x 982, 988–89 (Fed. Cir. 2020). ↑
Graham, supra note 108, at 235. ↑
See Sitaraman & Wuerth, supra note 261, at 1901. ↑
Tim Meyer has discussed the dangers of disjunctions in our trade law. See Timothy Meyer, Misaligned Lawmaking, 73 Vand. L. Rev. 151, 154–55 (2020). ↑
See Sitaraman, supra note 219, at 492. ↑
See, e.g., Hathaway, supra note 47, 239–68 (2009) (broadly re-balancing in foreign affairs including trade). Important recent contributions in the latter category include: Timothy Meyer, Local Liability in International Economic Law, 95 N.C. L. Rev. 261, 269 (2017) (“[D]irect liability for subnational governments should replace strict vicarious liability and immunity in international economic law.”); Alexia Brunet Marks, The Right to Regulate (Cooperatively), 38 U. Pa. J. Int’l L. 1, 8 (2016) (“[W]hen it comes to food safety, the harms caused by regulatory pluralism outweigh the benefits.”); Gregory Shaffer, Alternatives for Regulatory Governance Under TTIP: Building from the Past, 22 Colum. J. Eur. L. 403, 403–04 (2016) (proposing six alternative paradigms to evaluate negotiations over the Transatlantic Trade and Investment Partnership). ↑
See, e.g., Henry Olsen, Opinion, The President Has Too Much Power Over on Tariffs. Congress Should Reclaim That Authority., Wash. Post (June 14, 2019, 3:17 PM), https://www.washingtonpost.com/opinions/2019/06/14/president-has-too-much-power-over-tariffs-congress-should-reclaim-that-authority/ [https://perma.cc/88DQ-BD6Y]; Glenn Altschuler, How Congress Can Take Back Control Over Tariffs, Hill (June 2, 2019, 12:30 PM), https://thehill.com/opinion/finance/446513-how-congress-can-take-back-control-over-tariffs [https://perma.cc/3SYX-B75Z]; Packard, Congress Should Take Back Its Authority Over Tariffs, supra note 4. ↑
See, e.g., Julian Davis Mortenson, Article II Vests Executive Power, Not the Royal Prerogative, 119 Colum. L. Rev. 1169, 1230 (2019) (arguing that “executive power” was originally understood as “a discrete subset of . . . substantive authorities”). ↑
See, e.g., Brief of Defendants-Appellees at 1, 5, Am. Inst. for Int’l Steel v. United States, 806 Fed. App’x 982 (Fed. Cir. 2020) (No. 19-1727). ↑
Compare Almond Bros. Lumber Co. v. United States, No. 10-37, 2010 WL 1409656, at *1–*3 (Ct. Int’l Trade Apr. 4, 2010) (concluding that the CIT lacked subject-matter jurisdiction to review the Softwood Lumber Agreement because plaintiffs did not present sufficient evidence that the agreement was negotiated under Section 301) with Invenergy Renewables LLC v. United States, 422 F. Supp. 3d 1255, 1263–70 (Ct. Int’l Trade 2019) (concluding that the CIT had jurisdiction under Section 201 to review USTR’s withdrawal of its prior exclusion of a product from safeguard duties). ↑
See, e.g., 19 U.S.C. § 2251 (“[T]he President . . . shall take all appropriate and feasible action . . . which the President determines will facilitate efforts by the domestic industry to make a positive adjustment to import competition and provide greater economic and social benefits than costs.”). ↑
Interviews with Trade Pracs. (Jan. 2020) (commenting that they do not believe USTR’s actions qualify for APA review). But see infra text accompanying note 288. ↑
Exec. Order No. 12,866, 58 Fed. Reg. 51,735 (Sept. 30, 1993). ↑
Cf. Evan J. Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking, 88 Tex. L. Rev. 441, 453–56 (2010) (reviewing presidential administration and the roles of OMB and OIRA). ↑
See Claussen, supra note 115, at 3 (describing agency practice). ↑
See Cary Coglianese, Administrative Law: The United States and Beyond, in International Encyclopedia of Social & Behavioral Sciences 109 (James D. Wright ed., 2d ed. 2015). ↑
See, e.g., Made in the USA Found. v. United States, 242 F.3d 1300, 1319–20 (11th Cir 2001) (finding the question whether NAFTA was appropriately concluded as a congressional-executive agreement to be a “nonjusticiable political question”). ↑
See, e.g., Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic 5 (2011) (arguing that while there is no guarantee that an unbound executive will “pursue the public interest,” there is also “no pragmatically feasible alternative” and that “politics and public opinion . . . block the most lurid forms of executive abuse”). ↑
Outdatedly, see William D. Araiza, Note, Notice-and-Comment Rights for Administrative Decisions Affecting International Trade: Heightened Need, No Response, 99 Yale L.J. 669 (1989); Davis, supra note 212; George Bronz, The Tariff Commission as a Regulatory Agency, 61 Colum. L. Rev. 463 (1961). ↑
In fiscal year 2018, 242 new cases were filed with CIT. U.S. Cts., U.S. Court of International Trade—Cases Filed, Terminated, and Pending During the 12-Month Periods Ending September 30, 2017 and 2018, https://www.uscourts.gov/sites/default–/files/data_tables/jb_g1_0930.2018.pdf [https://perma.cc/XMY9-KTGP]. ↑
Id. Exceptionally, in autumn 2020, more than 3600 complaints were filed at the CIT against USTR for its Section 301 activities. See Standard Procedure Order, In Re Section 301 Cases, No. 21-01 (U.S. Ct. Int’l Trade, 2021). ↑
Existing accounts are dated. Frederick Davis and Daniel Tarullo each penned their reviews of trade administrative concerns in 1966 and 1986 respectively. See Davis, supra note 212; Tarullo, supra note 81. That there is such a dearth is surprising given that some of the most important administrative law and nondelegation cases from the twentieth century are related to trade law (e.g., Field v. Clark, 143 U.S. 649 (1892); J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)). ↑
Sitaraman, supra note 219, at 496–97. ↑
David Zaring makes this point, relying on earlier work by Jerry Mashaw. See Zaring, supra note 104, at 194. ↑
For a broader critique of this point, see Emily S. Bremer, The Exceptionalism Norm in Administrative Adjudication, 2019 Wis. L. Rev. 1351, 1352–53 (2019) (arguing that, in agency adjudications, “Congress and individual agencies have . . . create[d] unique adjudicatory proceedings designed to meet the individual needs of different administrative agencies and programs”). ↑
More work is needed to consider both how and whether it may be possible to change conventional ideas of administrative law to “accommodate” trade law and both how and whether trade law might adopt more conventional administrative law processes. ↑
See generally Patrick C. Reed, Expanding the Jurisdiction of the U.S. Court of International Trade: Proposals by the Customs and International Trade Bar Association, 26 Brook. J. Int’l L. 819 (2017) (discussing the limitations on the CIT’s jurisdiction); accord Devin S. Sikes, Why Congress Should Expand the Subject Matter Jurisdiction of the United States Court of International Trade, 6 S.C. J. Int’l L. & Bus. 253, 254 (2010) (“The federal statutes vesting the CIT with jurisdiction over international trade disputes do not account for the evolution of international trade into new areas.”). ↑
Galbraith, supra note 184, at 1693 (noting that the executive branch agencies’ loyalty is “divided”). ↑
For an overview of these proposals, see Kathleen Claussen, Trade War Battles: Congress Reconsiders Its Role, Lawfare (Aug. 5, 2018, 11:00 AM), https://www.lawfareblog.com–/trade-war-battles-congress-reconsiders-its-role [https://perma.cc/D5R2-T8HP]. ↑

Taxing Nudges

Governments are increasingly turning to behavioral economics to inform policy design in areas like health care, the environment, and financial decision-making. Research shows that small behavioral interventions, referred to as “nudges,” often produce significant responses at a low cost. The theory behind nudges is that, rather than mandating certain behaviors or providing costly economic subsidies, modest initiatives may “nudge” individuals to choose desirable outcomes by appealing to their behavioral preferences. For example, automatically enrolling workers into savings plans as a default, rather than requiring them to actively sign up, has dramatically increased enrollment in such plans. Similarly, allowing individuals to earn “wellness points” from attendance at a gym, redeemable at various retail establishments, may improve exercise habits.

A successful nudge should make a desired choice as simple and painless as possible. Yet one source of friction may counteract an otherwise well-designed nudge: taxation. Under current tax laws, certain incentives designed to nudge behavior are treated as taxable income. At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It describes the emergence of a disjointed tax regime that exempts private party nudges, but taxes identical incentives that come from the government. What is more, an incentive structured as a government grant may be taxable while an economically identical tax credit is not. The Article then proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. Specifically, lawmakers should reverse the default rule that all government transfers are taxable, and instead exclude government transfers from income unless otherwise provided by the Tax Code.

Introduction

Imagine that every ten years, a flood decimates the banks of a river, destroying homes and other buildings in its wake. Each time, the flood causes millions of dollars of damage and leaves some people homeless or jobless. The local government incurs enormous costs in the aftermath to clean up damage and provide subsidies to victims.

Now imagine that experts determine that a measure can be taken to “flood proof” homes and other buildings. The measure costs several thousand dollars per building, but this pales in comparison to the cost of cleaning up flood damage. Naturally, policymakers would be eager to encourage residents along the riverbank to undertake the improvements. But people tend to be present-biased and discount future harms, and the residents are unmotivated to make the improvements.¹1.See infra Subsection I.B.6.Show More What can policymakers do?

One option would be to mandate flood proofing and penalize those who do not do it. But this would be politically unpopular and entail enforcement costs. Another option would be simply to pay for the flood proofing for each resident; but this may be cost prohibitive.

There may be a third option, however. Suppose that lawmakers decide to offer a small carrot—a “nudge”—to encourage people to flood proof their homes. They might, for example, offer a modest cash reward—say $300—for doing so. Or they might offer to provide a warranty for any flood damage incurred after the improvement is made. The small nudge may be enough to motivate people to flood proof their homes. If the nudge is effective, the government might succeed in protecting its residents’ homes at a fraction of the cost of using penalties or paying for the improvements outright.

Nudges are an increasingly popular policy tool in many contexts. Insights from behavioral economics reveal that people’s irrational tendencies may lead them to make suboptimal decisions, such as failing to flood proof their homes, opting not to save for retirement, or not applying to college. For example, people’s failure to save for retirement is often just due to sheer inaction—what researchers call “status quo bias,” ²2.See infra note 15 and accompanying text.Show More rather than any rational decision about how to spend one’s money. Making retirement savings easier by defaulting people into savings plans is an example of a simple nudge that achieves a desired policy at a low cost.

The term “nudge” was famously coined by Professors Richard Thaler and Cass Sunstein to describe an intervention that “alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives.”³3.Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009).Show More Nudges might make a desired choice easier or simpler for people, they might help people overcome bad habits like procrastination, or they may simply provide people with better information.⁴4.Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018).Show More Governments around the world have increasingly used nudges to enact cost-effective policies to improve the welfare of their citizens.

Nudges come in many forms: shifting defaults, like in the case of savings plans; sending people text message reminders to apply for college financial aid; or simplifying instructions on forms. Other nudges provide small incentives, like cash rewards or “wellness points” one might earn for achieving health goals. Regardless of the form of a particular nudge, it should make a desired choice as simple and painless as possible.

Yet one source of friction may counteract an otherwise well-designed nudge: taxation.

Under current tax laws, certain incentives aimed at nudging behavior are treated as taxable income. While nudges like defaults or text message reminders do not have tax consequences, nudges that provide an economic benefit to the recipient may be taxable. This is true regardless of whether the benefit comes in the form of cash, property, or services. For example, if a local government offers its citizens a $300 reward for flood proofing their homes, that grant would be subject to federal income taxation.

At best, people are ignorant of taxes on nudges, an outcome that is not good for the tax system. It may be particularly counterintuitive to people that government grants would be subject to tax. At worst, taxes on nudges may actively deter people from participating in programs with worthy policy goals. For example, homeowners may decide to forego a cash reward for flood proofing their home because they do not want to deal with the hassle of reporting it or because they do not want to attract scrutiny from the IRS. To date, policymakers have generally failed to account for this potential obstacle in designing nudges.

This Article sheds light on the tax treatment of nudges and the policy implications of taxing them. It first describes the emergence of a disjointed tax regime that often exempts nudges that come from private parties, but taxes identical incentives that come from the government. As a default, the tax law generally treats all economic benefits as taxable income. However, broad exceptions exist for certain incentives provided by employers to their employees, which are often classified as nontaxable fringe benefits. Similarly, incentives paid by nonprofits to individuals are likely to be treated as nontaxable gifts. Nudges provided by businesses to paying customers are also exempt from tax under the judicially created “purchase price adjustment” doctrine.

When it comes to identical incentives provided by governments, however, none of the fringe benefit, gift, or purchase price adjustment exclusions apply. Furthermore, while many government transfers are exempt from tax under other exclusions—for example, welfare assistance, veterans’ benefits, Social Security, and Medicare—those rules do not cover most nudges. Without a special exclusion, incentive-based nudges provided by governments are generally subject to tax under current laws. This regime does not appear to be a product of design, but is more likely the result of a piecemeal system of tax exemptions that has developed over time. Perhaps even more confounding is that an incentive structured as a government grant may be taxable, while an economically identical tax credit is not.

After examining the tax treatment of the most common types of nudges, this Article proposes reforms that would unify the tax treatment of nudges and enhance their effectiveness. It argues that lawmakers should reverse the default rule that all government transfers are taxable, and instead provide a rule that government transfers are excluded from income unless otherwise provided by the Tax Code. This would ensure that nudges designed to promote worthy policy goals would be exempt from tax as a default matter, unless Congress specifically decides otherwise. As an alternative to this broad proposal, the Article also proposes legislation that would exempt specific nudges from tax in the areas of health and environmental protection. Under either approach, exempting nudges from tax will make them more effective and should not pose serious revenue consequences.

This Article proceeds in four parts. Part I describes the concept of a nudge and categorizes the most common types of nudges. Part II provides an overview of the tax system and discusses the current tax treatment of nudges. Part III discusses policy implications of the current tax regime, including proposals to reform the tax treatment of nudges. Part IV concludes that the simplest, yet most effective, way to unify the tax treatment of nudges would be for Congress to provide a default of nontaxability for government transfers.

* George R. Ward Term Professor of Law, University of North Carolina School of Law. I am grateful to Andrew Benton for excellent research assistance, and to helpful comments from Ellen Aprill, Peter Barnes, Fred Bloom, Michelle Drumbl, Heather Field, Brian Galle, Brant Hellwig, Andy Hessick, Carissa Hessick, Ed McCaffery, Pat Oglesby, Leigh Osofsky, Gregg Polsky, Katie Pratt, Rich Schmalbeck, Ted Seto, Jay Soled, Sloan Speck, Manoj Viswanathan, Larry Zelenak and workshop participants at University of Colorado Law School, Duke Law School, Loyola Law School, Washington & Lee University School of Law, and UC Hastings College of Law. For Tessie DeLaney. ↑
See infra Subsection I.B.6. ↑
See infra note 15 and accompanying text. ↑
Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness 6 (2d ed. 2009). ↑
Cass R. Sunstein, Misconceptions About Nudges, 2 J. Behav. Econ. for Pol’y 61, 61 (2018). ↑
See, e.g., George Loewenstein & Nick Chater, Putting Nudges in Perspective, 1 Behav. Pub. Pol’y. 26, 29 (2017) (“Traditional economic interventions include taxes, subsidies and mandatory disclosure of information . . . .”). ↑
See, e.g., David Halpern, Inside the Nudge Unit: How Small Changes Can Make a Big Difference 4 (2015). ↑
See, e.g., Bruno S. Frey, A Constitution for Knaves Crowds Out Civic Virtues, 107 Econ. J. 1043, 1044–45 (1997). ↑
Cass R. Sunstein, Nudging: A Very Short Guide, 37 J. Consumer Pol’y 583, 583 (2014) (Nudges “generally cost little and have the potential to promote economic and other goals . . . .”). ↑
Halpern, supra note 6, at 22. ↑
Brian Galle argues that, in some circumstances, nudges are the most efficient choice of instrument. See Brian Galle, The Problem of Intrapersonal Cost, 18 Yale J. Health Pol’y, L., & Ethics 1, 32–50 (2018). ↑
Sunstein, supra note 8, at 585. However, for a critique of savings defaults, see Ryan Bubb & Richard H. Pildes, How Behavioral Economics Trims Its Sails and Why, 127 Harv. L. Rev. 1593, 1607–37 (2014). ↑
Thaler & Sunstein, supra note 3, at 110–11. ↑
Id. at 111. ↑
See, e.g., id. at 111–13 (automatic enrollment increased employee participation in savings plans from 65% to 90%, and could notably increase per-capita contribution percentages); Loewenstein & Chater, supra note 5, at 27. ↑
Daniel Kahneman, Jack Knetsch & Richard Thaler, Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193, 197–98 (1991). ↑
See About SBST, SBST, https://sbst.gov/#report [https://perma.cc/S3YM-35MC] (last visited June 14, 2019). ↑
William J. Congdon & Maya Shankar, The White House Social & Behavioral Sciences Team: Lessons Learned from Year One, 1 Behav. Sci. & Pol’y 77, 83 (2015), https://behavioralpolicy.org/wp-content/uploads/2017/05/BSP_vol1is2_Congdon.pdf [https://perma.cc/EXF9-RWMV]. ↑
Id. ↑
See About Us, Behavioural Insights Team, https://www.bi.team/about-us/ [https://perma.cc/6BUF-95PA] (last visited Nov. 7, 2020) (“We have run more than 750 projects to date, including 400 randomised controlled trials in dozens of countries.”). ↑
See Christopher Larkin, Michael Sanders, Isabelle Andresen & Felicity Algate, Testing Local Descriptive Norms and Salience of Enforcement Action: A Field Experiment to Increase Tax Collection, 2 J. Behav. Pub. Admin. 1, 9–10 (2019); Dominic King et al., Redesigning the “Choice Architecture” of Hospital Prescription Charts: A Mixed Methods Study Incorporating In Situ Simulation Testing, 4 BMJ Open 1, 8–9 (2014); Peter John, Elizabeth MacDonald & Michael Sanders, Targeting Voter Registration with Incentives: A Randomized Controlled Trial of a Lottery in a London Borough, 40 Electoral Stud. 170, 175 (2015). ↑
See Zeina Afif, William Wade Islan, Oscar Calvo-Gonzalez & Abigail Goodnow Dalton, World Bank Group, Behavioral Science Around the World: Profiles of 10 Countries 6 (2019), http://documents.worldbank.org/curated/en/710771543609067500/pdf/132610-REVISED-00-COUNTRY-PROFILES-dig.pdf [https://perma.cc/JDX2-R9UK]. ↑
See, e.g., Congdon & Shankar, supra note 17, at 84 (finding that letters sent to physicians comparing their prescribing rates with those of their peers had no measurable impact on prescription rates). ↑
See Afif et al., supra note 21, at 8–9. ↑
See, e.g., Thaler & Sunstein, supra note 3, at 12, 85. ↑
See, e.g., Johan Egebark & Mathias Ekström, Can Indifference Make the World Greener? 11–13 (Rsch. Inst. of Indus. Econ., IFN Working Paper No. 975, 2013). ↑
Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives? 302 Science 1338, 1338–39 (2003). ↑
See, e.g., Sunstein, supra note 8, at 585. ↑
Eric P. Bettinger, Bridget Terry Long, Philip Oreopoulos & Lisa Sanbonmatsu, The Role of Simplification and Information in College Decisions: Results from the H&R Block FAFSA Experiment 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 15361, 2009), https://www.nber.org/papers/w15361.pdf [https://perma.cc/XBV6-DL2U]. ↑
Id. at 26–27. ↑
Cass R. Sunstein, Empirically Informed Regulation, 78 U. Chi. L. Rev. 1349, 1372–73 (2011). ↑
Id. at 1373. ↑
See, e.g., New Text Message Reminders for Summons Recipients Improves Attendance in Court and Dramatically Cuts Warrants, Ideas42, https://www.ideas42.org/new-text-message-reminders-summons-recipients-improves-attendance-court-dramatically-cuts-warrants/ [https://perma.cc/5SMM-PPFH] (last visited June. 17, 2019) (finding that text message reminders in New York City reduced “failure to appear” rates by 26%). ↑
See Congdon & Shankar, supra note 17, at 83. ↑
See, e.g., Raj Chetty, Adam Looney & Kory Kroft, Salience and Taxation: Theory and Evidence, 99 Am. Econ. Rev. 1145, 1165 (2009). ↑
Lisa L. Shu, Nina Mazar, Francesca Gino, Dan Ariely & Max H. Bazerman, Signing at the Beginning Makes Ethics Salient and Decreases Dishonest Self-Reports in Comparison to Signing at the End, 109 Proc. Nat’l Acad. Sci. 15197, 15197–98 (2012), http://www.pnas.org/content/109/38/15197.full.pdf+html [https://perma.cc/436E-DGL2] ↑
Id. at 15198. ↑
See, e.g., Sunstein, supra note 30, at 1381; Kate Phillips, Applying Behavioral Science Upstream in the Policy Design Process, Behav. Scientist (Sept. 17, 2018), https://behavioralscientist.org/applying-behavioral-science-upstream-in-the-policy-design-process/ [https://perma.cc/UWJ5-BBC7] (describing new laws implemented in Australia, requiring graphic images on cigarette labels, to reduce smoking rates). ↑
Michael Hallsworth, John A. List, Robert D. Metcalfe & Ivo Vlaev, The Behavioralist as Tax Collector: Using Natural Field Experiments to Enhance Tax Compliance 4 (Nat’l Bureau of Econ. Research, Working Paper No. 20007, 2014), https://www.nber.org/papers/w20007 [https://perma.cc/W7LN-F2T2]. ↑
Hunt Allcott, Social Norms and Energy Conservation, 95 J. Pub. Econ. 1082, 1082–83 (2011). ↑
Sunstein, supra note 4, at 61 (distinguishing between nudges, which “must preserve freedom of choice,” and subsidies or other interventions, which “impose[] significant material costs on choosers”). ↑
This is assuming economically rational decision making on behalf of the homeowner, without factoring in other (realistic) costs, such as hassle costs and present bias. ↑
Sunstein, supra note 4, at 61. ↑
See Robert Münscher, Max Vetter & Thomas Scheuerle, A Review and Taxonomy of Choice Architecture Techniques, 29 J. Behav. Decision Making 511, 518 (2016) (defining micro-incentives as “changes of the consequences of decision options that are insignificant from a rational choice perspective”). ↑
Id. ↑
The small size of the payment makes it particularly less likely to function as a true subsidy, although it could. For example, if paying for bus fare to a local clinic was the impediment to a person obtaining a free flu shot, the $5 may operate as an economic subsidy free of behavioral considerations. For further discussion of the distinction between nudges and subsidies, see Brian Galle, Tax, Command . . . or Nudge?: Evaluating the New Regulation, 92 Tex. L. Rev. 837, 854–56 (2014) (explaining that “surprising and asymmetric incentives” are one factor distinguishing nudges from subsidies, and using a five-cent tax on plastic bags as an example of a financial consequence that is most likely a nudge, given that alternatives are generally more costly than the bag tax). ↑
Bronwyn McGill, Blythe J. O’Hara, Anne C. Grunseit & Philayrath Phongsavan, Are Financial Incentives for Lifestyle Behavior Change Informed or Inspired by Behavioral Economics? A Mapping Review, 33 Am. J. Health Promotion 131, 131 (2019) (“Since the 1960s, financial incentives (FIs) have been used in behavior change interventions, targeting a broad spectrum of health issues such as blood donation, medication adherence, and health and wellness programs.”). ↑
Soeren Mattke et al., Workplace Wellness Programs Study: Final Report, at xiv (Rand Corp. ed. 2013); see also Laura A Linnan, Laurie Cluff, Jason E. Lang, Michael Penne & Maija S. Leff, Results of the Workplace Health in America Survey, 3 Am. J. Health Promotion 652, 655 (2019) (over 46% of worksites surveyed had wellness programs). ↑
See Ha T. Tu & Ralph C. Mayrell, Employer Wellness Initiatives Grow, But Effectiveness Varies Widely, Nat’l Inst. for Health Care Reform, July 2010, at 2 (concluding that employers offer wellness programs to contain medical costs, to improve productivity, and to “position themselves as ‘employers of choice’”). ↑
Id. ↑
Id. at 2–3. ↑
Id. at 3–4. ↑
Mattke et al., supra note 47, at xv. ↑
Tu & Mayrell, supra note 48, at 5; Bahaudin G. Mujtaba & Frank J. Cavico, Corporate Wellness Programs: Implementation Challenges in the Modern American Workplace, 1 Int’l J. Health Pol’y & Mgmt. 193, 194 (2013) (mentioning gym reimbursements as a part of corporate wellness programs). ↑
See, e.g., Mujtaba & Cavico, supra note 53, at 194 (listing seminars as a part of corporate wellness programs). ↑
These wellness program incentives are regulated by several laws. For example, the Health Insurance Portability and Accountability Act (“HIPAA”) imposes multiple nondiscrimination requirements. See Tu & Mayrell, supra note 48, at 6. ↑
Mattke et al., supra note 47, at 73 fig.5.3. ↑
Tu & Mayrell, supra note 48, at 5; see also Mujtaba & Cavico, supra note 53, at 196 (referencing “[h]ealth insurance discounts and reimbursements for employees who meet health standards and maintain a healthy lifestyle”). ↑
One report found that “[m]ost benefits consultants and wellness vendors believed that $100 is the ‘sweet spot’ for an incentive for a ‘single instance of behavior,’ such as HRA completion or participation in a specific wellness activity.” See Tu & Mayrell, supra note 48, at 5. ↑
John Cawley & Joshua A. Price, A Case Study of a Workplace Wellness Program That Offers Financial Incentives for Weight Loss, 32 J. Health Econ. 794, 795 (2013). ↑
Mattke et al., supra note 47, at xxi. ↑
But see Katherine Pratt, A Constructive Critique of Public Health Arguments for Anti-Obesity Soda Taxes and Food Taxes, 87 Tul. L. Rev. 73, 77–94 (2012) (discussing economic, externality-based justifications for anti-obesity taxes and subsidies). ↑
Present bias describes the tendency to value immediate rewards over future rewards, even if the future rewards are larger. See, e.g., Richard Thaler, Some Empirical Evidence on Dynamic Inconsistency, 8 Econ. Letters 201, 201 (1981). In the context of weight loss, it is hard for people to forego immediate benefits (a tasty meal, for example) in exchange for a future benefit (lower weight). ↑
See Cawley & Price, supra note 59, at 794 (“[P]eople may want to do what is in their long-run interest (lose weight), but consistently succumb to the temptation to eat and be sedentary.”). ↑
Id. ↑
Tu & Mayrell, supra note 48, at 5. ↑
Id. ↑
Sahil Gupta, Opinion, Earning Prizes for Fighting an Addiction, N.Y. Times (Mar. 12, 2019), https://www.nytimes.com/2019/03/12/opinion/earning-prizes-for-fighting-an-addiction.html [https://perma.cc/58CN-DT45]. ↑
Id. ↑
Id. ↑
Id. ↑
Scott D. Halpern et al., Randomized Trial of Four Financial-Incentive Programs for Smoking Cessation, 372 N. Eng. J. Med. 2108, 2108 (2015). Another intervention explored in the study was a deposit program in which participants would put up their own funds and earn them back if they successfully quit. Although the deposit was very effective for those who chose it, the cash incentive was more successful overall at reducing smoking, because significantly more participants opted for the cash intervention over the deposit. Id. at 2114. ↑
See, e.g., Kevin G. Volpp et al., A Randomized, Controlled Trial of Financial Incentives for Smoking Cessation, 360 New Eng. J. Med. 699, 707 (2009) (finding that a group who received financial incentives to refrain from smoking had “significantly higher” rates of “prolonged abstinence” than did a control group, who did not receive the same incentives). ↑
See, e.g., Jody Sindelar, Opinion, Should We Pay People to Stop Smoking?, CNN (Oct. 5, 2011), https://www.cnn.com/2011/10/05/opinion/sindelar-smoking-medicaid/index.html [https://perma.cc/C3Y6-39H8]. ↑
Thaler & Sunstein, supra note 3, at 236. ↑
Joshua Rhett Miller, North Carolina Program Pays Girls a Dollar a Day Not to Get Pregnant, Fox News (June 25, 2009), https://www.foxnews.com/story/north-carolina-program-pays-girls-a-dollar-a-day-not-to-get-pregnant [https://perma.cc/L6JJ-7CVW]. The payment was contingent on attending a ninety-minute lesson each week, where the women learned about abstinence and contraception use. Id. ↑
Id. ↑
Dyan Zaslowsky, Denver Program Curbs Teen-Agers’ Pregnancy, N.Y. Times, Jan. 16, 1989, at A8. ↑
Economic Incentives, Environmental Protection Agency, https://www.epa.gov/‌environmental-economics/economic-incentives [https://perma.cc/UCT5-4JJB] (last visited Dec. 21, 2020) (explaining that market-based incentives, like taxes and subsidies, are “becoming increasingly popular as tools for addressing a wide range of environmental issues”). ↑
Christian Schubert, Green Nudges: Do They Work? Are They Ethical?, 132 Ecological Econ. 329, 329 (2017). ↑
See Howard Kunreuther & Elke U. Weber, Aiding Decision Making to Reduce the Impacts of Climate Change, 37 J. Consumer Pol’y 397, 397–98 (2014). ↑
See, e.g., Schubert, supra note 79, at 330 (defining green nudges as “nudges that aim at promoting environmentally benign behavior”). ↑
Id. ↑
See Hunt Allcott & Dmitry Taubinsky, Evaluating Behaviorally Motivated Policy: Experimental Evidence from the Lightbulb Market, 105 Am. Econ. Rev. 2501, 2501–02 (2015) (exploring the phenomenon and finding that moderate subsidies for energy-efficient lightbulbs may be effective in addressing this underinvestment). ↑
Free LED Program, Duke Energy, https://www.duke-energy.com/home/products/free-leds [https://perma.cc/FY93-D5L5] (last visited June 19, 2019); see also Commercial Retrofit, Puget Sound Energy, https://www.pse.com/rebates/business-incentives/commercial-retrofit-grants [https://perma.cc/R578-FS72] (last visited July 5, 2019) (providing coverage for up to 70% of the cost for energy efficient upgrades). ↑
Smart $aver: Home Improvement Rebate Program, Duke Energy, https://www.duke-energy.com/home/products/smart-saver [https://perma.cc/GAT6-GC5L] (last visited June 19, 2019). ↑
HVAC Install, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/hvac-install [https://perma.cc/BE7P-YTJQ] (last visited June 19, 2019). ↑
Insulate & Seal, Duke Energy, https://www.duke-energy.com/home/products/smart-saver/insulate-and-seal [https://perma.cc/RC5K-V89W] (last visited June 19, 2019). ↑
Toshio Fujimi & Hirokazu Tatano, Promoting Seismic Retrofit Implementation Through “Nudge”: Using Warranty as a Driver, 33 Risk Analysis 1858, 1873 (2013). ↑
See id. at 1859–60. ↑
Id. at 1863. ↑
Id. at 1859. ↑
Id. at 1873. ↑
See supra note 62. ↑
See Kathleen DeLaney Thomas, The Modern Case for Withholding, 53 U.C. Davis L. Rev. 81, 124 (2019). ↑
See id. at 114. ↑
See Loewenstein & Chater, supra note 5, at 29–30. ↑
See Fujimi & Tatano, supra note 88, at 1872. ↑
Earthquake Brace + Bolt, https://www.earthquakebracebolt.com [https://perma.cc/‌5WPS-7X73] (last visited June 20, 2019). ↑
See, e.g., Cesarini v. United States, 296 F. Supp. 3, 4 (N.D. Ohio 1969) (“The starting point in determining whether an item is to be included in gross income is, of course, Section 61(a) of Title 26 U.S.C.”). ↑
I.R.C. § 61(a). The statute goes on to provide a non-exclusive list of items of gross income, such as compensation for services, interest, rents, royalties, and dividends. Id. ↑
348 U.S. 426, 431 (1955). ↑
See, e.g., Cesarini, 296 F. Supp. at 4 (holding that cash found in a used piano constituted taxable income under I.R.C. § 61(a)); Turner v. Comm’r, 13 T.C.M. 462, 463 (1954) (holding that cruise tickets received as a prize from a radio station constituted taxable income, with the only issue being valuation); see also Treas. Reg. § 1.61-14 (as amended in 1993) (expanding § 61(a) definition of gross income to include illegal gains and treasure troves, while clarifying that “[i]n addition to the items enumerated in section 61(a), there are many other kinds of gross income”). ↑
See I.R.C. § 74 (a). ↑
See Topic No. 420 Bartering Income, IRS, https://www.irs.gov/taxtopics/tc420 [https://perma.cc/4XMQ-EASH] (last visited June 20, 2019). ↑
The discussion omits other exclusions not relevant for this purpose, such as the non-taxation of imputed income under the Code, the realization requirement (§ 1001), and statutory exclusions like § 101 (life insurance proceeds) and § 103 (interest on state and local bonds). ↑
I.R.C. § 102. ↑
363 U.S. 278, 285 (1960). ↑
Id. ↑
Id. at 280, 291–92 (The transfer was “at bottom a recompense for Duberstein’s past services, or an inducement for him to be of further service in the future.”). ↑
Specifically, Code section 139 and the general welfare doctrine, both of which are discussed below. Rev. Rul. 2003-12, 2003-1 C.B. 283–84. ↑
Rev. Rul. 2005-46, 2005-2 C.B. 120. ↑
See, e.g., Rev. Rul. 2003-12, supra note 110, at 283. ↑
The exception is that certain employee achievement awards are excludable under I.R.C§ 74(c) (2018). ↑
Rev. Rul. 2003-12, supra note 110, at 284–85. ↑
Id. at 283–84. ↑
Rev. Rul. 99-44, 1999-44 I.R.B. 549–50. The matching contributions were gifts even though the savings accounts were established pursuant to a federal government program, which was administered by the charitable organization. ↑
See I.R.S. Priv. Ltr. Rul. 200442023 (Oct. 15, 2004). ↑
I.R.S. Priv. Ltr. Rul. 200529004 (July 22, 2005). Although payments from charities to individuals are likely to receive gift treatment in most situations, the Duberstein standard must still be satisfied for the gift exclusion to apply. For example, the IRS has stated in informal guidance that if a charity makes a payment to a for-profit business, “[t]he IRS will evaluate whether . . . . the payment was made out of a moral or legal obligation, an anticipated economic benefit or in return for services . . . .” Internal Revenue Service, Disaster Relief20, https://www.irs.gov/pub/irs-pdf/p3833.pdf [https://perma.cc/CQ2W-R83D]. Generally, payments made to individuals that are part of a “charitable class” (i.e., “large enough or sufficiently indefinite that the community as a whole, rather than a pre-selected group of people, benefits when a charity provides assistance”) should qualify for gift treatment. Id. at 9. I am grateful to Ellen Aprill for bringing this limitation to my attention. ↑
See, e.g., I.R.C. § 132. ↑
See Jay A. Soled & Kathleen DeLaney Thomas, Revisiting the Taxation of Fringe Benefits, 91 Wash. L. Rev. 761, 770 (2016). ↑
See id. at 766–68. ↑
Id. at 769–70. ↑
I.R.C. § 132(d), (e). ↑
See Soled & Thomas, supra note 120, at 770. ↑
However, if an employee is a shareholder or owner of the employer, payments made to employees may be treated as dividends rather than as compensation. See, e.g., Andrew W. Stumpff, The Reasonable Compensation Rule, 19 Va. Tax. Rev. 371, 377 (1999). ↑
I.R.C. § 132(a)(4), (e). ↑
In a similar context but outside the employment setting, a court allowed for exclusion of an all-expenses-paid business trip to Germany because the payment was made for the convenience of the payer, rather than for the recipient’s benefit. United States v. Gotcher, 401 F.2d 118, 119, 122 (5th Cir. 1968). Neither courts nor the IRS have explicitly extended the line of reasoning in Gotcher to other settings, particularly to non-business settings. However, the line of reasoning in the case could arguably apply to exclude many nudges from income. The argument would be that payments made primarily for the payer’s benefit (e.g., a government grant program) are not taxable income to the payee. Thanks to Ted Seto for this observation. ↑
See, e.g., Pittsburgh Milk Co. v. Comm’r, 26 T.C. 707, 717 (1956); Freedom Newspapers, Inc. v. Comm’r, 36 T.C.M. (CCH) 1755, 1758–59 (1977); Rev. Rul. 76-96, 1976-1 C.B. 23. ↑
See Rev. Rul. 76-96, 1976-1 C.B. 23. The taxpayer must reduce his basis in the property purchased by the amount of the rebate, resulting in a basis of $19,000 in this example. ↑
Freedom Newspapers, 36 T.C.M. (CCH) at 1756–57. But see I.R.S. Priv. Ltr. Rul. 201004005 (Jan. 29, 2010) (ruling that grants paid by a third party were not excludable from income, even when the net effect was to reduce the buyer’s cost on a purchase transaction). In the private ruling, the IRS distinguished payments involving broker commissions, which are dependent upon the sales transactions, from third-party grants that are independent of the transaction. Id. ↑
The taxpayer received “Thank You Points” that were redeemable for airline miles. Shankar v. Comm’r, 143 T.C. 140, 148 (2014). The court also noted that the miles were not earned during business travel, which the IRS has singled out for non-enforcement in Announcement 2002-18, 2002-1 C.B. 621. ↑
Shankar, 143 T.C. at 148. ↑
See I.R.S. Priv. Ltr. Rul. 201027015, at 3 (July 9, 2010) (ruling that cash-back rebates are excluded from gross income as purchase price reductions). ↑
For taxpayers that are corporations, Code § 118 historically exempted “contributions to capital,” which covered many government grants to corporations. However, section 118 was amended in 2017 and currently does not exempt contributions to capital made by “any governmental entity.” I.R.C. § 118(b). Regardless, this Article is concerned with incentives provided to individual taxpayers, not corporations.
There are other special exclusions applicable to businesses not discussed in detail here. For example, Code § 48(d)(3) excludes grants made to developers and producers of renewable energy, pursuant to the American Recovery and Reinvestment Act of 2009. ↑
Greisen v. United States, 831 F.2d 916, 918 (9th Cir. 1987). The Alaska Permanent Fund is funded by the state’s mineral royalties; it distributes earnings in the form of dividends to each resident of the state on an annual basis. Id. at 916–17; see also About Us, Alaska Department of Revenue: Permanent Fund Dividend Division, https://pfd.alaska.gov/Division-Info/About-Us [https://perma.cc/QHG2-M67C] (last visited July 1, 2019) (explaining the Alaska Permanent Fund eligibility and dividend calculation functions). ↑
Greisen, 831 F.2d at 919–20 (“According to the statement of purpose, the 1980 Act was intended: (1) to allow equitable distribution of part of the state’s wealth to Alaskans; (2) to encourage people to remain Alaska residents; and (3) to encourage awareness and interest in the management of the fund.”). ↑
See, e.g., Graff v. Comm’r, 673 F.2d 784, 785 (5th Cir. 1982). For a comprehensive discussion of the doctrine, see Theodore P. Seto & Sande L. Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U. Pa. L. Rev. 1053, 1106–14 (2006); see generally Robert W. Wood & Richard C. Morris, The General Welfare Exception to Gross Income, 109 Tax Notes 203, 204–08 (2005) (describing the development of the General Welfare Exception and the prongs of the test determining whether a payment qualifies). ↑
Rev. Rul. 2005-46, 2005-2 C.B. 120; see also Rev. Rul. 74-205, 1974-1 C.B. 20 (ruling that housing payments to displaced families qualified under the general welfare exception, and were not includible in gross incomes of the recipients); Rev. Rul. 98-19, 1998-1 C.B. 840 (ruling that a relocation payment made to an individual moving from a flood-damaged residence qualified for the general welfare exception). ↑
I.R.S. Notice 99-3, 1999-1 C.B. 271, 272. ↑
Rev. Rul. 2005-46, supra note 138. ↑
Rev. Rul. 2003-12, 2003-1 C.B. 283; Rev. Rul. 76-144, 1976-1 C.B. 17. However, the IRS has ruled that payments to businesses do not qualify for the doctrine, because the need must be “individual or family” based. See Rev. Rul. 2005-46, supra note 138. ↑
Rev. Rul. 74-74, 1974-1 C.B. 18. ↑
Rev. Rul. 76-395, 1976-2 C.B. 16. ↑
88 T.C. 1293, 1301 (1987), acq. 1989-2 C.B. 1. The court excluded the grant from income on other grounds, however, finding that the taxpayer “lacked complete dominion” over the funds, which were paid directly to the contractor who did the work. ↑
Id. (noting that the only requirements to receive the grant “were ownership of the property and compliance with the building code”). ↑
The exclusion applies to “qualified disaster[s],” which also includes events involving terrorism or common carrier accidents. See I.R.C. § 139(c). For a critique of limiting the exclusion to qualified disasters only, see Ellen P. Aprill & Richard Schmalbeck, Post-Disaster Tax Legislation: A Series of Unfortunate Events, 56 Duke L.J. 51, 95 (2006). ↑
I.R.C. § 139(g). ↑
I.R.C. § 401(k). ↑
I.R.C. § 61. ↑
I.R.C. § 132(e). ↑
I.R.C. § 106(a). ↑
Rev. Rul. 2002-3, 2002-1 C.B. 316 (“Under §106(a), an employee may exclude premiums for accident or health insurance coverage that are paid by an employer.”). ↑
I.R.C. § 105(b). ↑
See, e.g., Office of Chief Counsel Internal Revenue Service Memorandum 201622031, at 1 (Apr. 14, 2016) [hereinafter “IRS Memo 201622031”]. ↑
I.R.C. § 61. ↑
Treas. Reg. § 1.132-6(c) (as amended in 1992). ↑
I.R.C. § 132(e). ↑
Treas. Reg. § 1.132-6(c) (as amended in 1992). The exception to this rule is cash for occasional overtime meals or transportation fare can be excluded as de minimis. See Treas. Reg. § 132-6(d)(2) (as amended in 1992). ↑
Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (“Benefits excludable from income”). ↑
IRS Memo 201622031 at 4. ↑
Id. at 4. ↑
See Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992). ↑
See supra notes 51–53 and accompanying text. ↑
See Treas. Reg. § 1.61-2(d)(1) (as amended in 2003). ↑
I.R.C. § 132(e)(1). ↑
Treas. Reg. § 1.132-6(e)(1)–(2) (as amended in 1992). ↑
See IRS Memo 201622031 at 2, 4–5. “Medical care” is defined in section 105(b) by reference to section 213(d) of the Code, which provides that medical care includes amounts paid “for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body.” I.R.C. § 213(d)(1)(A). ↑
See IRS Memo 201622031 at 2, 5. ↑
See id. For examples of medical care under section 213, including smoking cessation programs, see IRS Publication 502, Medical and Dental Expenses, https://www.irs.gov/‌pub/irs-pdf/p502.pdf [https://perma.cc/3GGF-RMV3] (last visited Mar. 10, 2021). ↑
Medical expenses include payments for a weight-loss program “for a specific disease diagnosed by a physician,” so it is unlikely that a weight-loss program would qualify in the absence of a diagnosis. See IRS Publication 502, supra note 169. ↑
See Treas. Reg. § 1.132-6(e)(1) (as amended in 1992) (citing examples of “occasional” events, such as sports games or cocktail parties, as ones that qualify as de minimis). ↑
In an analogous context, it appears many service-type benefits offered by Silicon Valley companies, such as free dry cleaning, haircuts, or yoga classes, are likely not reported as taxable by those employers. See Soled & Thomas, supra note 120, at 779–86. ↑
Treas. Reg. § 1.132-6(e)(2) (as amended in 1992). However, onsite gyms operated by the employer qualify for exclusion. See I.R.C. § 132(j)(4). ↑
See IRS Memo 201622031 at 4–5. ↑
I.R.C. § 132(a)(2). ↑
I.R.C. § 132(c)(4). ↑
It follows that a private gym could offer discounted gym services to its own employees. ↑
See supra note 57 and accompanying text. ↑
See supra note 128 and accompanying text. ↑
See supra note 152. ↑
See IRS Memo 201622031 at 5. ↑
See id. at 2–5. ↑
See Rev. Rul. 2002-3, supra note 152. ↑
See supra note 73 and accompanying text. ↑
See supra notes 75–77 and accompanying text. ↑
See supra notes 67–70 and accompanying text; 75–77 and accompanying text. ↑
See supra note 140 and accompanying text. ↑
See supra notes 141–43 and accompanying text. ↑
See IRS Publication 502, supra note 169. However, the deduction is only available to itemizers (those who do not claim the standard deduction) and is limited to the excess of 10% of the individual’s adjusted gross income. I.R.C. § 213(a). ↑
I.R.C. § 105(b). ↑
I.R.C. § 104(a). ↑
Another exception, which would be irrelevant in this circumstance, is section 102, which would exclude from income medical care paid for by family members or friends. See I.R.C. § 102(a). ↑
See supra notes 84–87 and accompanying text. ↑
See, e.g., supra note 87. ↑
See supra note 129 and accompanying text. ↑
For example, in Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755 (1977), the Tax Court held that even a payment received by a third party broker several years after the original purchase “was sufficiently tied to the purchase that its characterization must be made by reference to the original transaction.” ↑
I.R.C. § 139(g). ↑
See supra note 141 and accompanying text. ↑
See supra note 98 and accompanying text. ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Jan. 11, 2018). See also I.R.S. Priv. Ltr. Rul. 201815005 (Jan. 11, 2018) (describing similar facts).
One theory that the IRS did not appear to consider is the purchase price adjustment doctrine. See supra Subsection II.A.2. Arguably, a state grant paid to a state taxpayer could be considered a non-taxable adjustment to the amount of taxes owed to the state by the grant recipient. (This assumes the grant recipient earns enough income to owe state taxes in excess of the grant.) While it is hard to distinguish a state grant from a seller rebate on economic grounds, it appears neither courts nor the IRS have extended the purchase price adjustment doctrine to this context. I am grateful to Heather Field for this observation. ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Jan 11. 2018). ↑
See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017). ↑
See Henry C. Simons, Personal Income Taxation: The Definition of Income as a Problem of Fiscal Policy 50 (1938); Robert Murray Haig, The Concept of Income–Economic and Legal Aspects, in The Federal Income Tax 1, 7 (Robert Murray Haig ed., 1921). The definition is commonly referred to as the Haig-Simons definition of income. See, e.g., John R. Brooks, The Definitions of Income, 71 Tax L. Rev. 253, 262 (2018); Boris I. Bittker, A “Comprehensive Tax Base” as a Goal of Income Tax Reform, 80 Harv. L. Rev. 925, 932 (1967). For a comprehensive discussion of the difficulty of defining income and a description of several other approaches, see generally Brooks, supra; see also Victor Thuronyi, The Concept of Income, 46 Tax L. Rev. 45, 47 (1990) (describing the Haig-Simons definition vis-à-vis the general difficulty in defining income). ↑
See, e.g., Bittker, supra note 203, at 935; Jonathan Barry Forman, The Income Tax Treatment of Social Welfare Benefits, 26 U. Mich. J.L. Reform 785, 799 (1993). ↑
Bittker, supra note 203, at 935–37. ↑
The legal scholarship on this point is too voluminous to cite, but for some of the earliest work, see, e.g., id. at 932; R. A. Musgrave, In Defense of an Income Concept, 81 Harv. L. Rev. 44 (1967); Joseph A. Pechman, Comprehensive Income Taxation: A Comment, 81 Harv. L. Rev 63 (1967); Charles O. Galvin, More on Boris Bittker and the Comprehensive Tax Base: The Practicalities of Tax Reform and the ABA’s CSTR, 81 Harv. L. Rev. 1016 (1968). For a discussion of the debate over the use of a “comprehensive tax base,” see Brooks, supra note 203, at 270–74. ↑
See, e.g., Dep’t of Treasury, Office of Tax Analysis, Tax Expenditures (2017), https://www.treasury.gov/resource-center/tax-policy/Documents/Tax-Expenditures-FY2019.pdf [https://perma.cc/8UVR-9ZKJ] [hereinafter “Tax Expenditures]. ↑
Id. at 9, 18. ↑
Although the tax-free receipt of a gift by the donee is not labeled as an expenditure, the carryover basis provided by section 1015 for appreciated gifts is considered a tax expenditure. See J. Comm. on Tax’n, Estimates of Federal Tax Expenditures for Fiscal Years 2018–2022, 26 (Oct. 4, 2018), https://www.jct.gov/publications/2018/jcx-81-18/ [https://perma.cc/33XY-P3EB] [hereinafter “JCT Tax Expenditures”]. ↑
See Tax Expenditures, supra note 207, at 3 (“The normal tax baseline also excludes gifts between individuals from gross income.”). ↑
See, e.g., Richard Schmalbeck, Gifts and the Income Tax—An Enduring Puzzle, 73 Law & Contemp. Probs. 63, 65 (2010) (arguing that “although it is intuitively appealing to regard value received by gift as an element of the income of the individual receiving it, it is completely unappealing to regard value received by gift as an increment to income in the aggregate”). ↑
Id. This of course assumes that the donor and the donee have the same tax rate. In reality, donors likely have higher tax rates than donees, in which case the net effect would be revenue loss to the government. For example, if the donor had a 30% marginal tax rate and the donee had a 10% marginal tax rate, the donor’s deduction for a $100 gift would be worth $30 (30% of $100), while the donee’s tax liability would be $10 (10% of $100), resulting in a $20 revenue loss. ↑
For income tax purposes, the gift is a non-event and need not be reported. However, the gift may need to be valued and returns filed if the gift tax applies. Currently, transfers under $15,000 are exempt from the gift tax. See, e.g., Frequently Asked Questions on Gift Taxes, IRS, https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes [https://perma.cc/23XD-GDZC] (last visited July 11, 2019). ↑
E.g., Schmalbeck, supra note 211, at 65. ↑
The counterargument is that the gift represents consumption purchased by the donor. For a discussion of this theory, see id. at 68–69. ↑
See supra Subsection II.A.2. ↑
For a similar argument, see Charlotte Crane, Government Transfer Payments and Assistance: A Challenge for the Design of Broad-Based Taxes, 59 SMU L. Rev. 589, 611–12 (2006) (pointing out that government transfers do not create new value). ↑
See, e.g., supra notes 134–135 and accompanying text. ↑
See supra note 154 and accompanying text. ↑
Either way, the payment is deductible under Code section 162. ↑
JCT Tax Expenditures, supra note 209, at 27. The characterization of an exclusion as an expenditure depends on how Congress defines the tax base, and this has changed over time. See, e.g., Julie Roin, Truth in Government: Beyond the Tax Expenditure Budget, 54 Hastings L.J. 603, 608–10 (2003) (providing an overview of the development of the federal tax expenditure budget).
The characterization of scholarships depends particularly on varying definitions of the tax base, and Treasury has noted that:

From an economic point of view, scholarships and fellowships are either gifts not conditioned on the performance of services, or they are rebates of educational costs. Thus, under the baseline tax system of the reference law method, this exclusion is not a tax expenditure . . . . The exclusion, however, is considered a tax expenditure under the normal tax method, which includes gift-like transfers of Government funds in gross income (many scholarships are derived directly or indirectly from Government funding).

See Tax Expenditures, supra note 207 at 13. ↑
See, e.g., Joseph M. Dodge, Scholarships Under the Income Tax, 46 Tax Law. 697, 698–99 (1993) (examining arguments for excluding scholarships from the tax base and for making them a tax preference); Charlotte Crane, Scholarships and the Federal Income Tax Base, 28 Harv. J. on Legis. 63, 113 (1991) (same). ↑
The exclusion in section 117 only covers scholarships paid for tuition and related expenses. Although some scholarship funds are conditioned on the performance of services like teaching or research, those funds are explicitly excluded from section 117 and are taxable. I.R.C. § 117(c)(1). ↑
The value of the educational benefit likely exceeds the cost of tuition because higher educational institutions receive substantial funding from other sources besides tuition, including government subsidies. See, e.g., Crane, supra note 222, at 71. ↑
See generally sources cited at note 222 (observing the difficulty of assessing educational value as justification for exempting academic scholarships from taxable income under the federal tax code). ↑
See supra note 221; see also Dodge, supra note 222, at 701–02. ↑
See Dodge, supra note 222, at 711. ↑
See Freedom Newspapers v. Commissioner, 36 T.C.M. (CCH) 1755, 1758–59 (1977). ↑
JCT Tax Expenditures, supra note 207, at 27–28. ↑
Because retrofit grants and similar payments must be applied towards the specified property improvements, they are better viewed as the provision of property, rather than as a receipt of cash by the taxpayer. There is precedent for this approach, although it is not the approach the IRS has taken specifically with retrofit grants. For example, in Bailey v. Commissioner, the taxpayer wasn’t taxed on an urban renewal grant for his property because the grant went directly to the general contractor, and the court found the taxpayer never had sufficient control over the funds to warrant taxation. See 88 T.C. 1293, 1301 (1987), acq., 1989-2 C.B. 1.
Arguably, any time an individual receives an incentive-based nudge or BBS in the form of cash that must be spent on specified property or services, the taxability of such funds should be based on the ultimate purchase, rather than on the temporary receipt of cash. ↑
For example, if a taxpayer owns an asset that appreciates in value (e.g., a stock or a house), she has a positive change in net wealth. However, the Code will not tax her until she “realize[s]” a gain, such as by making a sale. See I.R.C. § 1001. ↑
For a discussion of the legislative history behind the section 132 fringe benefit rules, see infra notes 261–67 and accompanying text. ↑
See Scott Greenberg, Reexamining the Tax Exemption of Municipal Bond Interest, Tax Found. Fiscal Fact No. 520 (July 2016), https://files.taxfoundation.org/legacy/‌docs/TaxFoundation_FF520.pdf [https://perma.cc/ZY7A-QS3M]. (observing that state and local bonds are justified as a basis for incentivizing investments in projects that benefit nonresidents, but concluding that “[a] tax exclusion is an unideal policy design for subsidizing state and local debt”). ↑
In that case, 20% or $250 would be tax, and $1,000 would remain. ↑
If the federal government increases a federal subsidy from $1,000 to $1,250 to account for federal income tax, it will pay $250 more for the subsidy and collect $250 in tax. ↑
See, e.g., Christopher C. Fennell & Lee Ann Fennell, Fear and Greed in Tax Policy: A Qualitative Research Agenda, 13 Wash. U. J.L. & Pol’y 75, 79 (2003) (“A functional definition of . . . tax aversion . . . is the amount by which one’s aversion to a tax exceeds the economic cost of the tax.”); Edward J. McCaffery & Jonathan Baron, Thinking About Tax, 12 Psych., Pub. Pol’y & Law 106, 117 (2006); Abigail B. Sussman & Christopher Y. Olivola, Axe the Tax: Taxes Are Disliked More than Equivalent Costs, 68 J. Mktg. Rsch. S91, S91 (2011). ↑
See, e.g., Sussman & Olivola, supra note 236, at S93 (describing experiments that found people change their behavior to avoid taxes, but not reacting in a similar manner to comparable non-tax costs). ↑
McCaffery & Baron, supra note 236, at 117–18 (recounting an experiment the authors conducted where individuals were confronted with a policy labeled as a tax or comparable economic policy not labeled as a tax, which “found that labels mattered”); David J. Hardisty, Eric J. Johnson & Elke U. Weber, A Dirty Word or a Dirty World? Attribute Framing, Political Affiliation, and Query Theory, 21 Psych. Sci. 86, 91 (2010) (finding in an experiment that “framing the cost increase as a tax differentially affected the structure and content of thoughts generated by Democrats and Republicans, leading to different preferences”). ↑
Sussman & Oliviola, supra note 236, at S94–96, S100. ↑
Id. at S95. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at S95–96. ↑
Id. at S94. ↑
One source of variation appears to be political affiliation. Studies show that Republicans and Independents are sensitive to “tax” labels in decision making, but Democrats generally are not. See id. at S96–97; Hardisty et al., supra note 238, at 91 (finding “that the power of a framing manipulation can depend on participants’ preexisting individual differences”). ↑
Of course, tax aversion will not deter participants who are unaware of the tax, which may be the case when there is no information reporting required. For incentives subject to information reporting (discussed more below), participants will likely have to provide tax information at the outset (e.g., a Form W-9), and are more likely to be aware of tax consequences. Other programs may disclose tax consequences on their website or in related materials, as is the case with California’s Earthquake Mitigation program. See infra note 272. ↑
See generally Kay Blaufus & Axel Möhlmann, Security Returns and Tax Aversion Bias: Behavioral Responses to Tax Labels, 15 J. Behav. Fin. 56, 63–65 (2014) (finding that people have tax aversion bias toward infrequent, unfamiliar financial decisions). ↑
See I.R.C. § 6041(a). ↑
I.R.S. Priv. Ltr. Rul. 201816004 (Apr. 20, 2018); I.R.S. Priv. Ltr. Rul. 201815005 (Apr. 13, 2018). ↑
Marianne Bertrand, Sendhil Mullainathan, & Eldar Shafir, Behavioral Economics and Marketing in Aid of Decision Making Among the Poor, 25 J. Pub. Pol’y & Mktg. 8, 16 (2006). ↑
Id. ↑
Saurabh Bhargava & Dayanand Manoli, Psychological Frictions and the Incomplete Take-Up of Social Benefits: Evidence from an IRS Field Experiment, 105 Am. Econ. Rev. 3489, 3490 (2015). ↑
Id. at 3524. ↑
Id. at 3492. ↑
See Kathleen DeLaney Thomas, User-Friendly Taxpaying, 92 Ind. L.J. 1509, 1512 (2017). ↑
Tax withholding is required on payments of employee compensation, but not for other payments. See I.R.C. § 3402(a). ↑
See, e.g., Thomas, supra note 94, at 84. ↑
See supra note 249 and accompanying text. ↑
Penalties are up to $270 per information return (up to $550 in the case of intentional disregard) and may be assessed separately for both failure to issue to the payee and failure to file with the IRS. For a summary of these penalties, see Increase in Information Return Penalties, IRS, https://www.irs.gov/government-entities/federal-state-local-governments/‌increase-in-information-return-penalties [https://perma.cc/F2NZ-K4CL] (last visited July 17, 2019). ↑
Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 494, 499 (codified as amended in scattered sections of 26 U.S.C.). ↑
See Staff of J. Comm. on Tax’n, 98th Cong., General Explanation of the Revenue Provisions of the Deficit Reduction Act of 1984, at 840 (Comm. Print 1984). ↑
Id. ↑
Id. at 841. ↑
Id. ↑
Id. ↑
Id. at 843. ↑
Equally important, but beyond this Article’s scope, are potential federalism and comity concerns that may arise when the federal government seeks to tax state programs, to the extent the tax hinders the state’s ability to implement the program. ↑
See Earthquake Mitigation Incentive and Tax Parity Act of 2017, H.R. 1691, 115th Cong. (2017); Earthquake Mitigation Incentive and Tax Parity Act of 2017, S. 2104, 115th Cong. (2017). ↑
Id. ↑
Press Release, Senator Dianne Feinstein, Feinstein and Harris Introduce Legislation to Protect Earthquake Loss Mitigation Incentive Ahead of Senate GOP Tax Bill Release (Nov. 9, 2017), https://www.feinstein.senate.gov/public/index.cfm/press-releases?ContentRecord_‌id=78BD9E69-4090-4E62-AE1A-08A01870F3AB [https://perma.cc/L7UZ-BY8G]. ↑
The Brace + Bolt program mentions potential consequences in an FAQ on its website, stating, “The homeowner of a retrofit House under the Program will receive an IRS Form 1099, if applicable, reporting the amount of incentive payments as taxable income to the homeowner for federal income tax purposes.” See Earthquake Brace+Bolt FAQs, https://www.earthquakebracebolt.com/FAQ [https://perma.cc/GXF5-HMEU] (last visited July 24, 2019). ↑
Although state tax credits are generally not taxable, to the extent they reduce a taxpayer’s state tax liability, the refundable portion (if any) of a state tax credit is taxable. See, e.g., Ginsburg v. United States, 922 F.3d 1320, 1322 (Fed. Cir. 2019) (holding that the refundable portion of a New York State tax credit was includible in income for federal income tax purposes). ↑
See supra notes 134–35 and accompanying text. ↑
I.R.C. § 85. However, prior to the enactment of section 85, the IRS treated unemployment payments as excludable. See Rev. Rul. 70-280, 1970-1 C.B. 13. ↑
Failing to tax unemployment compensation also favors such compensation over wages, which may distort decisions to work. ↑
See I.R.C. § 86. Previously, the IRS treated all Social Security benefits as exempt from tax. See Rev. Rul. 70-217, 1970-1 C.B. 13. ↑
See, e.g., Forman, supra note 204, at 795. But see Brian Galle, How to Save Unemployment Insurance, 50 Ariz. St. L.J. 1009, 1062–64 (2018) (arguing for repeal of taxes on unemployment benefits). ↑
Professor Charlotte Crane has observed that this appears to have been the IRS’s historical approach prior to the evolution of the general welfare doctrine. Crane, supra note 217, at 594. ↑
Examples include current exclusions for educational grants, veterans’ benefits, and worker’s compensation payments. See, e.g., I.R.C. § 104(a)(1) (worker’s comp), I.R.C. § 117 (scholarships), 38 U.S.C. § 5301 (veterans’ benefits). Similarly, Medicare benefits, which are not specifically excluded by statute but are treated as such by the IRS, would continue to be excluded. See Rev. Rul. 70-341, 1970-2 C.B. 31–32. ↑
See supra note 167. ↑
See supra notes 261–67 and accompanying text. ↑
See supra note 172. ↑
See Soled & Thomas, supra note 120, at 763–64, 776. ↑
Id. at 814–15. ↑
While section 132 contains a list of specific exclusions in the statute, section 132(o) does delegate authority to Treasury to implement the statute and numerous regulations exist, such as those clarifying what types of benefits qualify as de minimis fringes. See Treas. Reg. § 1.132-6 (as amended in 1992). ↑
Cf. Crane, supra note 217, at 612–13 (discussing the exclusion of transfer payments that do not create new value, regardless of source). ↑
Withholding could be set at a default rate (e.g., 5%), or taxpayers could fill out a form that would determine their withholding rate. These possibilities are discussed in Thomas, supra note 94, at 131–34. ↑
See id. at 111. ↑
Id. at 128. ↑

Invoking Criminal Equity’s Roots

Equitable remedies have begun to play a critical role in addressing some of the systemic issues in criminal cases. Invoked when other solutions are inadequate to the fair and just resolution of the case, equitable remedies, such as injunctions and specific performance, operate as an unappreciated and underutilized safety valve that protects against the procedural strictures and dehumanization that are hallmarks of our criminal legal system. Less familiar equitable-like legal remedies, such as writs of mandamus, writs of coram nobis, and writs of audita querela, likewise serve to alleviate fundamental errors in the criminal process. Several barriers contribute to the limited use and efficacy of these longstanding remedies. Despite the vast numbers of people caught up in the criminal system, society’s aversion to recognizing errors in the system or to acknowledging the humanity of those charged prohibits greater invocation of these remedies. When taken in conjunction with the historically-based fear of judicial arbitrariness and unchecked discretion associated with equity courts, these barriers can seem insurmountable. This Article highlights the pervasiveness of equitable remedies in the criminal system and advocates for an expanded use of equitable and equitable-like legal remedies in criminal cases. In an era with the odds so overwhelmingly stacked against criminal defendants, equity provides a much-needed check on our criminal system, allowing for the exercise of mercy and justice, not just punitiveness and retribution.

Introduction

The one-sided retributive impulses that govern state and federal criminal legal systems have significantly expanded the substantive criminal law while curtailing the procedural mechanisms aimed at protecting the rights of the accused. Few safety valves remain in place to keep these retributive impulses in check. Equitable remedies remain one such safety valve. Equitable remedies allow a person accused or convicted of a crime to obtain relief from the restrictive criminal procedures states and Congress have implemented over the past half century. Here are a few examples:

Orville Hutton legally came to the United States as a child from his native Jamaica.¹1.State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015).Show More He became a lawful permanent resident and remained in the U.S.²2.Id.Show More At the age of forty-eight, he was accused of assaulting his live-in girlfriend.³3.Id.Show More Hutton entered an Alford plea—a plea of guilty without an admission of guilt⁴4.Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).Show More—and was sentenced to a term of imprisonment of one to five years.⁵5.Id. at 624.Show More Ten days before he was to be released, the Department of Homeland Security notified him that he was subject to a federal detainer, as the government had begun deportation proceedings against him.⁶6.Id.Show More Hutton’s trial counsel never told him his guilty plea might have immigration consequences, and he had already waived his right to appeal.⁷7.Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014).Show More After he was transferred into DHS custody, Hutton filed a pro se writ of coram nobis, a little heard of equitable remedy still available in federal courts and many states.⁸8.A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2.Show More Hutton alleged a violation of his Sixth Amendment right to counsel based on his lawyer’s failure to inform him of the likely immigration consequences of pleading guilty.⁹9.Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635.Show More The West Virginia Supreme Court granted the requested equitable relief, allowing him to withdraw his guilty plea and stand trial for the offenses with which he was initially charged.¹⁰10.State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017).Show More

An Arkansas jury convicted Eugene Pitts of capital murder after a masked man broke into the home of a doctor and his wife. The evidence at trial consisted of the wife’s positive identification of Pitts, despite the mask covering much of the assailant’s face; FBI testimony about hair found on the decedent, purportedly belonging to Pitts; and Pitts’ inability to account for his whereabouts at the time of the murder.¹¹11.Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)).Show More After his conviction, Pitts maintained his innocence and pursued every possible post-conviction remedy.¹²12.Id. at 804⁠–05.Show More Subsequent DNA testing of the remaining hair sample was inconclusive, and the court denied a request for further testing.¹³13.Id. at 805.Show More The remaining sample was later lost.¹⁴14.Id.Show More Three years later, Pitts received a letter from the Department of Justice, informing him that the work of the FBI lab technician who did the hair analysis in his case “failed to meet professional standards,” resulting in three types of errors in the testimony at Pitts’ trial.¹⁵15.Id.Show More Pitts asked the Supreme Court of Arkansas to reinvest jurisdiction in the trial court to consider a remedy, including a writ of coram nobis and a writ of audita querela.¹⁶16.Id. at 804.Show More The court granted the motion.¹⁷17.Id. at 806.Show More

Maranda ODonnell joined other plaintiffs in a class action suit against Harris County, Texas, alleging that the county’s bail system for indigent misdemeanor arrestees violated both Texas statutory and constitutional law and the Fourteenth Amendment to the U.S. Constitution.¹⁸18.ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018).Show More The Texas district court granted a preliminary injunction after eight days of hearings,¹⁹19.ODonnell, 892 F.3d at 152.Show More finding that “County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so.”²⁰20.Id. at 153.Show More In various ways, “the imposition of secured bail specifically target[ed] poor arrestees,” resulting in a pretrial system where “an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”²¹21.ODonnell, 882 F.3d at 536.Show More The district court found ODonnell had a likelihood of success on the merits of her claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees.²²22.ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152.Show More

In each of these instances, courts alleviated a significant injustice in the criminal legal system that would have remained but for the availability of an equitable remedy.

These are not isolated cases. Although equitable remedies in criminal cases remain largely undiscussed in scholarly literature and public dialogue,²³23.But seeCortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g.,Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998).Show More they provide a critical safeguard in the criminal legal system worthy of deeper scholarly attention. Amidst a frustrating lack of progress toward reforming our criminal legal system, equitable remedies address some of the inadequacies and gaps in this lop-sided system. As I have noted previously, pretrial detainees have successfully challenged local bail systems, securing release from confinement through the equitable remedy of a preliminary injunction.²⁴24.SeeLollar, supranote 23, at 327–48.Show More Individuals convicted of a crime but unable to pay the fines, fees, and costs imposed at sentencing have avoided continued incarceration through injunctions as well. When prosecutors renege on promises made as part of a plea agreement, courts have relied on the equitable remedy of specific performance to insist on fulfillment of those promises.²⁵25.Id. at 342⁠–44.Show More In short, equitable remedies play a valuable role in providing a modicum of balance to the criminal legal process.

This Article suggests that equity can and should play a larger role in criminal cases. Using equitable remedies such as injunctions and specific performance as a jumping-off point, this Article examines several equitable-like legal remedies whose pre-equity roots are grounded in similar notions of fairness and which, like equitable remedies, compel action, not just monetary compensation.

“Special and equitable”²⁶26.I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”).Show More legal remedies in the form of writs of mandamus, writs of coram nobis, and writs of audita querela already play a role in addressing inequities in criminal cases, but as with injunctions and specific performance, they can play a broader role in balancing out the inequities in the current legal system.²⁷27.See infra Section I.B.Show More Writs of mandamus, for example, more often assist prosecutors in limiting a lower court’s authority to challenge their actions than they aid a defendant in obtaining the personnel file of a police officer with a history of excessive force complaints. Writs of coram nobis historically have been available to a person claiming an error of “the most fundamental character” in that person’s criminal conviction.²⁸28.See infra notes 169–73 and accompanying text.Show More But the availability of these writs in the federal system has been limited by prevailing precedent requiring the person to show an ongoing harm that is “more than incidental.”²⁹29.See infra notes 180–85 and accompanying text.Show More Courts have discounted claims of continuing financial penalties and an inability to obtain certain professional licenses as ongoing harms sufficient to bring a claim for a writ of coram nobis.³⁰30.Id.Show More

Embracing a reinvigorated use of equitable and equitable-like legal remedies would serve a crucial function in our criminal legal system. For example, writs of audita querela are an ideal equitable-like legal mechanism to request release from incarceration post-conviction due to the presence of COVID-19 in the prison or jail where one is serving a sentence. Writs of audita querela can issue when “it would be contrary to justice” to allow a criminal judgment “to be enforced, because of matters arising subsequent to the rendition thereof.”³¹31.Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)).Show More In states that have not limited the remedy’s application, a request for release under audita querela due to the extraordinary and unpredicted consequences of COVID-19 could be an effective method of obtaining perhaps otherwise unattainable relief. These remedies can be an antidote to some of the criminal system’s ills, responding to the narrowing of procedural protections for those charged with a crime, challenging the staggering expansion of criminal sentences, and addressing the metastatic collateral consequences that attach to a criminal conviction.

This broad remedial conception is grounded in equity’s historical roots, yet limited in a manner that prevents unchecked, ad hoc judicial discretion. Focusing on judicially granted remedies,³²32.Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23.Show More this Article proposes ways in which equitable remedies can begin to effectively challenge certain aspects of the criminal legal system in an effort to make the system fairer and more balanced.

This is the second of two articles addressing the use of equitable remedies in the criminal system. My first article, Reviving Criminal Equity,³³33.SeeLollar, supranote 23.Show More identified that courts are relying on equitable remedies, such as preliminary injunctions and specific performance, to counter inequities in the criminal legal system. Reviving Criminal Equity explored the use of the narrow category of remedies deemed equitable by early English courts in recent criminal cases. This Article takes off where Reviving Criminal Equity ends.

After beginning with a brief examination of the concept of equity and how it applies in the criminal legal system, Part I discusses the distinctions between equitable remedies and “special and equitable” legal remedies and describes how these “special and equitable” legal remedies are being effectively employed in a manner similar to equitable remedies in modern criminal cases. Part II recognizes the conceptual barriers to expanding the use of these equitable remedies, including a lack of familiarity with the remedies in a criminal context, and a societal and legal reluctance to give the benefit of the doubt to those accused of crimes. It then responds to these barriers by articulating a vision of a bounded equity. Pulling from historical equity principles that relied on an objective moral conscience quite different from this modern era’s subjective ideas of conscience, Part II argues for the use of equitable remedies grounded in existing remedial principles rather than relying on a theory of shared morality. Finally, Part III provides specific examples of how a re-envisioned, expansive equity might look on the ground. Returning to the individual remedies outlined in Part I, Part III illustrates how courts could use equity to obtain a fairer and more just process and result in the face of a system full of procedural hurdles and punitive impulses.

* James and Mary Lassiter Associate Professor, University of Kentucky J. David Rosenberg College of Law. Thank you to Joshua Barnette, Valena Beety, Christopher Bradley, Erin Collins, Joshua Douglas, Ion Meyn, Anna Roberts, Caprice Roberts, Paul Salamanca, Kate Weisburd, and Ramsi Woodcock for sharing their invaluable thoughts and ideas throughout the writing of this piece. I am also grateful to the editorial staff of the Virginia Law Review, particularly Alexander Heldman, Chloe Fife, and Paige Whitaker, for their careful and thoughtful editing of this piece, and to Arjun Ogale for ensuring the editorial process ran smoothly from start to finish. ↑
State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). ↑
Id. ↑
Id. ↑
Id. at 623–24, 624 n.1 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)). ↑
Id. at 624. ↑
Id. ↑
Hutton v. State, No. 13P119, 2014 WL 8331419, at *2⁠–3 (W. Va. Cir. Ct. Apr. 28, 2014). ↑
A writ of coram nobis permits judges to grant relief to “correct grave injustices,” factual and legal “errors of the most fundamental character” in cases “where no more conventional remedy is applicable,” and “where equity appear[s] to require review of an otherwise final or non-appealable judgment.” Unlike with writs of habeas corpus, the person seeking relief no longer needs to be in custody to receive coram nobis relief. See infra Subsection I.C.2. ↑
Hutton, 776 S.E.2d at 624. Hutton’s claim was grounded in the 2010 case, Padilla v. Kentucky, 559 U.S. 356 (2010). Hutton, 776 S.E.2d at 635. ↑
State v. Hutton, 806 S.E.2d 777, 788 (W. Va. 2017). ↑
Pitts v. State, 501 S.W.3d 803, 804, 804 n.1 (Ark. 2016) (quoting Pitts v. State, 617 S.W.2d 849, 851⁠–52 (Ark. 1981)). ↑
Id. at 804⁠–05. ↑
Id. at 805. ↑
Id. ↑
Id. ↑
Id. at 804. ↑
Id. at 806. ↑
ODonnell v. Harris Cnty., 882 F.3d 528, 534⁠–35 (5th Cir. 2018), withdrawn, superseded on reh’g, 892 F.3d 147 (5th Cir. 2018). ↑
ODonnell, 892 F.3d at 152. ↑
Id. at 153. ↑
ODonnell, 882 F.3d at 536. ↑
ODonnell, 892 F.3d at 155. The U.S. Court of Appeals for the Fifth Circuit affirmed that conclusion on appeal. Id. at 152. ↑
But see Cortney E. Lollar, Reviving Criminal Equity, 71 Ala. L. Rev. 311 (2019); Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283 (2018).

Pardons are the occasional exception to the general silence. See, e.g., Brakkton Booker, On His Way Out, Kentucky Gov. Matt Bevin Pardons Murderers, Rapists, Hundreds More, NPR (Dec. 13, 2019, 12:52 PM), https://www.npr.org/2019/12/13/787811560/on-his-way-out-kentucky-gov-matt-bevin-pardons-murderers-rapists-hundreds-more [https://perma.cc/6M4H-N7LT]; Adam H. Johnson, Misplaced Outrage Over Kentucky Governor’s Pardons Harms Criminal Justice Reform, Appeal (Dec. 20, 2019), https://theappeal.org/misplaced-outrage-over-kentucky-governors-pardons-harms-criminal-justice-reform/ [https://perma.cc/X8Y6-UK4M]. However, pardons are left exclusively to the province of the governor or president and are generally underutilized as a criminal legal system check. See, e.g., Kathleen M. Ridolfi, Not Just an Act of Mercy: The Demise of Post-Conviction Relief and a Rightful Claim to Clemency, 24 N.Y.U. Rev. L. & Soc. Change 43, 46 (1998). ↑
See Lollar, supra note 23, at 327–48. ↑
Id. at 342⁠–44. ↑
I have created this term drawing on the use of the word “special” in this context by scholar Samuel Bray and the U.S. Supreme Court. See Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 564, 564 & n.176, 593 (2016); Lemon v. Kurtzman, 411 U.S. 192, 200 (1973) (plurality opinion) (“[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”). ↑
See infra Section I.B. ↑
See infra notes 169–73 and accompanying text. ↑
See infra notes 180–85 and accompanying text. ↑
Id. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *11 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Although pardons are a well-recognized equitable remedy, the discretion to grant them remains with the governor of a state or President of the United States, raising fundamentally different issues than judicially granted remedies. For this reason, pardons are beyond the scope of this Article’s discussion. See sources cited supra note 23. ↑
See Lollar, supra note 23. ↑
See, e.g., Lollar, supra note 23, at 317–19. ↑
Id. at 313–14, 327–48. ↑
Martha C. Nussbaum, Equity and Mercy, 22 Phil. & Pub. Affs. 83, 87 (1993). ↑
See Lollar, supra note 23, at 316⁠–17. ↑
Nussbaum, supra note 36, at 85. Nussbaum identifies the ability of equity to both be lenient and flexible by the term epieikeia. Id. at 85⁠–86. ↑
Id. at 96. ↑
Dennis R. Klinck, Conscience, Equity and the Court of Chancery in Early Modern England

13, 24 (2010).

↑
Irit Samet, Equity: Conscience Goes to Market 11 (2018) (citing Carleton Kemp Allen, Law in the Making 389 (6th ed. 1958)). ↑
Id. (quoting Lift Capital Partners Pty. Ltd. v Merrill Lynch Int’l (2009) 253 ALR 482, 507 (Austl.)). ↑
Klinck, supra note 40, at 31; accord Mike Macnair, Equity and Conscience, 27 Oxford J. Legal Stud. 659, 661–62 (2007). ↑
Klinck, supra note 40, at 25. Dennis Klinck notes, however, that some “dissident[]” scholars disagree with this “probably predominant position.” Id. at 26. ↑
Id

.

at 3–4; Macnair, supra note 43, at 674. Although some were concerned about the subjectivity inherent in “conscience” as early as the sixteenth century, see Klinck, supra note 40, at 3–4, according to Klinck, “it is clear that at least pre-Reformation accounts of conscience included a significant objective dimension,” id. at 3, that “would ostensibly be easier to reconcile with its status as a juristic principle, a measure of law,” id. at 4. ↑
Klinck, supra note 40, at 31. ↑
Id

.

at 2, 5, 32–35 (discussing how conscience was initially grounded in a “divinely ordained and objective moral order,” resulting in a particular moral judgment where conscience provides the governing rule and the facts are applied to that rule); Macnair, supra note 43, at 661 (“Synderesis is the faculty of moral reasoning, and conscience is the application of this faculty to particular cases.”); Macnair, supra note 43, at 667 (“[T]here are some fairly clear indications that [in the 1450s] there was a fairly definite conception of what ‘conscience’ implied.”); Timothy A. O. Endicott, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity, 47 U. Toronto Fac. L. Rev. 549, 552, 553 (1989) (noting how in the twelfth century, Thomas à Becket “made the Chancery into an office which set the law of the Church as the standard for the king’s conscience,” such that ecclesiastical chancellors “would resort to a conscience informed by the principles of the Church”); Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429, 441–42 (2003); Irit Samet, What Conscience Can Do for Equity, 3 Juris. 13, 21 (2012) (discussing medieval perception that conscience has a universal presence with objective principles that inform it based on the divine law of reason). ↑
Macnair, supra note 43, at 661. ↑
Id. at 662. ↑
David W. Raack, A History of Injunctions in England Before 1700, 61 Ind. L.J. 539, 555–58, 563 (1986); Lollar, supra note 23, at 327–48. ↑
Raack, supra note 50, at 560 n.131; Edwin S. Mack, The Revival of Criminal Equity, 16 Harv. L. Rev. 389, 392 (1903). ↑
Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 390. ↑
Mack, supra note 51, at 390. ↑
Klinck, supra note 40, at 169 (quoting Earl of Northumberland v. Bowes (1621), in 2 Cases Concerning Equity and the Courts of Equity 1550–1660 489 (W.H. Bryson ed., 2000)). ↑
Cf. Macnair, supra note 43, at 663 (describing how a “defendant in Chancery could demur to the plaintiff’s bill because there was no equity in it”). ↑
See, e.g., Raack, supra note 50, at 560 n.131; Mack, supra note 51, at 391–92; Note, Developments in the Law–Injunctions, 78 Harv. L. Rev. 994, 1013–14 (1965); John Norton Pomeroy, Jr., Equity, in 7 Modern American Law 61 (Eugene Allen Gilmore & William Charles Wermuth eds., 1914); F.W. Maitland, The Origin of Equity (II), in Equity: Also the Forms of Action at Common Law: Two Courses of Lectures 19–20 (A.H. Chaytor & W.J. Whittaker eds., 1910). ↑
Lollar, supra note 23, at 322 (quoting Mack, supra note 51, at 391). ↑
Id. (quoting 30A

C.J.S. Equity

§ 66 (2018)). ↑
Id. (quoting Graham v. Phinizy, 51 S.E.2d 451, 457 (Ga. 1949)). ↑
See, e.g., id. at 320–21; In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”). ↑
Lollar, supra note 23, at 322–23. ↑
See, e.g., id. at 313–14, 327–48; Samet

,

supra note 41, at 5; Caprice L. Roberts, Supreme Disgorgement, 68 Fla. L. Rev. 1413, 1415–20 (2016); Samuel L. Bray, The Supreme Court and the New Equity, 68 Vand. L. Rev. 997, 999–1000 (2015); Mark P. Gergen, John M. Golden & Henry E. Smith, The Supreme Court’s Accidental Revolution? The Test for Permanent Injunctions, 112 Colum. L. Rev. 203, 204 (2012). ↑
Lollar, supra note 23, at 327–48. ↑
Id. ↑
Samuel L. Bray, Equity and the Seventh Amendment 6, 10 & n.48 (Feb. 1, 2019) (unpublished manuscript), (available at https://papers.ssrn.com/sol3/papers.cfm?‌abstract_id=3237907 [https://perma.cc/5E2C-JNRN]). ↑
Raack, supra note 50, at 544. ↑
Id. ↑
Id. at 541–42. ↑
Id. at 544–45. ↑
John Norton Pomeroy, A Treatise on Equity Jurisprudence (Students’ Edition)

§ 175 (1907).

↑
Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530, 540–42, 546, 559 n.141 (2016). ↑
Id. at 535. ↑
Id. at 559. ↑
Id. at 551–53. ↑
Id. at 562–63. ↑
In re El Mujaddid, 563 F. App’x 874, 874 (3d Cir. 2014). ↑
Kerr v. U.S. Dist. Ct. for N.D. Cal., 426 U.S. 394, 402 (1976) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). ↑
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (quoting Kerr, 426 U.S. at 403). ↑
See, e.g., Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per curiam). ↑
18 U.S.C. § 3771(e)(2)(A). ↑
Id. § 3771(a). ↑
Id. § 3771(d)(3), (e)(2). ↑
Id. § 3771(d)(3). ↑
See, e.g., Lewis v. U.S. Att’y Gen., No. 10-1624, 2010 WL 4069151 (D.D.C. Oct. 15, 2010). ↑
See, e.g., In re Linlor, 713 F. App’x 228 (4th Cir. 2018). ↑
These are so common that a Westlaw search for “writ of mandamus” within the same paragraph as 18 U.S.C. § 3771, the Crime Victims Rights Act, returned 10,000 hits; a similar search but with 18 U.S.C. § 3771 within a sentence of “writ of mandamus” returned similar results. ↑
United States v. Binkholder (Binkholder II), 909 F.3d 215, 216 (8th Cir. 2018). ↑
United States v. Binkholder (Binkholder I), 832 F.3d 923, 928 (8th Cir. 2016). ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 928–29. The Eighth Circuit later clarified, however, that being declared a crime victim under the CVRA “is not necessarily dispositive of who is a victim under the Sentencing Guidelines” and instructed the lower court to make separate inquiries based on the respective definitions before enhancing Binkholder’s sentence based on the amount of the M.U.’s losses. Id. at 929–30. On remand, the district court reached the conclusion that M.U. was a crime victim both under the CVRA and under the relevant sentencing guidelines and sentenced Binkholder accordingly. Binkholder II, 909 F.3d at 217. ↑
Kenna v. U.S. Dist. Ct. for C.D. Cal., 435 F.3d 1011, 1012–13 (9th Cir. 2006). ↑
Id. at 1013. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at 1016, 1018. ↑
See, e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v. United States, 486 U.S. 153, 159 (1988). That right does not extend to those who cannot afford to hire counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989) (quoting Wheat, 486 U.S. at 159) (“Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. ‘[A] defendant may not insist on representation by an attorney he cannot afford.’”). ↑
United States v. Santos, 201 F.3d 953, 957 (7th Cir. 2000). ↑
Id. ↑
Id. at 957–58. ↑
Id. at 958. ↑
Id. at 957. ↑
Id. at 958. ↑
Id. at 957–58. ↑
Id. at 960–61. ↑
Id. ↑
Id. at 959. ↑
Bridgers v. Kent, No. WR-45,179-03, 2006 WL 8430864, at *1 (Tex. Crim. App. Nov. 13, 2006). ↑
Id. ↑
Id. See also Tex. Code Crim. Proc. Ann. art. 11.071 (West 2005) (requiring the court of criminal appeals to “adopt rules for the appointment of attorneys as counsel” in death penalty cases and the convicting court to appoint an attorney as counsel “only if the appointment is approved by the court of criminal appeals in any manner provided by those rules”). ↑
Bridgers, 2006 WL 8430864, at *1. ↑
Id. at *1 n.1. ↑
See, e.g., State ex rel. Garvey v. County Bd. Of Comm’rs of Sarpy Co., 573 N.W.2d 747 (Ne. 1998); Kuren v. Luzerne County, 146 A.3d 715 (Pa. 2016) (seeking writ of mandamus to require the county to fund the public defender office; in this case, however, the former chief public defender, along with several former defendants, sought the writ). ↑
See, e.g., Hurrell-Harring v. State, 930 N.E.2d 217, 219, 222 (N.Y. 2010); Kuren, 146 A.3d at 718; Church v. Missouri, 913 F.3d 736, 741–42 (8th Cir. 2019); Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1123–24 (W.D. Wash. 2013). ↑
Twenty-Fourth Jud. Dist. Indigent Def. Bd. v. Molaison, 522 So. 2d. 177, 177–78 (La. Ct. App. 1988). ↑
Id. at 178. ↑
Id. at 181. ↑
Id. ↑
Rachel Moran, Contesting Police Credibility, 93 Wash. L. Rev. 1339, 1340–42 (2018). ↑
See, e.g., State ex rel. Glover v. Lashutka, No. 96APD10-1433, 1996 WL 751548 (Ohio Ct. App. Dec. 31, 1996); In re Willard, No. 07-16-00274-CR, 2016 WL 4158024 (Tx. App. Aug. 3, 2016). ↑
Moran, supra note 121, at 1368. ↑
Id. at 1370–76. ↑
Id. at 1372. ↑
Id. at 1373. ↑
See, e.g., Tex. Gov’t Code Ann. § 552.103 (West 1999); State ex rel. Coleman v. City of Cincinnati, 566 N.E.2d 151, 152 (Ohio 1991) (per curiam) (discussing Ohio’s exemption of records containing information related to an anticipated or ongoing case from the state’s general public records rule). ↑
Moran, supra note 121, at 1373. ↑
Long v. Municipal Ct., 128 Cal. Rptr. 918, 918 (Ct. App. 1976). ↑
Id. ↑
Id. at 919. ↑
Id. ↑
Id. at 919–20. ↑
State ex rel. Caster v. City of Columbus, 89 N.E.3d 598, 599–601 (Ohio 2016). ↑
Id. at 600. ↑
Id. ↑
Id. at 599–600. ↑
Id. at 601. ↑
Id. at 600. ↑
Id. at 602. ↑
Id. at 609. The court continued to recognize exceptions, such as the protection of the identity of confidential informants or specific confidential investigatory techniques. Id. ↑
Flipping the script, in one instance, the police department and city of Austin, Texas, obtained a conditional writ of mandamus challenging a lower court’s denial of their motion to quash a capital defendant’s subpoena for police personnel records. In re Moore, 615 S.W.3d 162 (Tx. Crim. App. 2019). ↑
See, e.g., Giovanni B. v. Superior Ct., 60 Cal. Rptr. 3d 469, 476 (Ct. App. 2007) (denying writ because the trial court was judged not to have abused its discretion in rejecting an in camera review of police records); State ex rel. Donovan v. Portage Cnty. Sheriff’s Dept., No. 90-P-2166, 1991 WL 260193, at *1–2 (Ohio Ct. App. Dec. 6, 1991) (granting writ related to information that purportedly would endanger the safety of law enforcement officers, but denying writ as to confidential investigatory techniques); Whittle v. Munshower, 155 A.2d 670, 671 (Md. 1959) (dismissing appeal as premature but addressing merits of the writ of mandamus claim); cf. Moran, supra note 121, at 1368–74 (discussing range of state statutes governing disclosure of police records). ↑
State ex rel. Keller v. Cox, 707 N.E.2d 931, 934 (Ohio 1999) (per curiam). ↑
Cf. Moran, supra note 121, at 1374–77 (discussing how even potential constitutional implications of failing to disclose police personnel files do not necessarily render the records disclosable under state statutory law). ↑
U.S. Const. amend. V (“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.”). ↑
United States v. Dean, 752 F.2d 535, 540 (11th Cir. 1985) (quoting United States v. Denson, 588 F.2d 1112, 1126 (5th Cir. 1979), aff’d in part and modified in part en banc, 603 F.2d 1143 (5th Cir. 1979)). ↑
18 U.S.C. § 3731. ↑
United States v. Wilson, 420 U.S. 332, 337 (1975). ↑
See, e.g., United States v. Choi, 818 F. Supp. 2d 79, 84, 87 (D.D.C. 2011). ↑
In re United States, 397 F.3d 274, 278, 287 (5th Cir. 2005) (per curiam). ↑
District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008) (per curiam), amended on denial of reh’g, 964 A.2d 1281 (D.C. 2009) (per curiam). ↑
Choi, 818 F. Supp. 2d at 82. ↑
See generally United States v. Fei Ye, 436 F.3d 1117 (9th Cir. 2006) (granting writ after trial judge ordered that defendants could depose the government’s expert witnesses prior to trial); United States v. Vinyard, 539 F.3d 589 (7th Cir. 2008) (granting writ after trial judge sua sponte ordered defendant’s release from incarceration and vacated his plea agreement and sentence); United States v. U.S. Dist. Ct. for E. Dist. Cal., 464 F.3d 1065 (9th Cir. 2006) (per curiam) (granting writ after trial judge granted defense motion for a bench trial without government’s consent); United States v. Amante, 418 F.3d 220 (2d Cir. 2005) (granting writ after judge sua sponte bifurcated trial on the elements of a single count charged). ↑
See, e.g., In re United States, 397 F.3d at 278; Choi, 818 F. Supp. 2d at 82. ↑
Choi, 818 F. Supp. 2d at 83–87. ↑
United States v. Farnsworth, 456 F.3d 394, 396 (3d Cir. 2006). ↑
In re People, 49 V.I. 297, 300 (2007). ↑
28 U.S.C. § 2241; see also Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Executive Summary: Habeas Litigation in U.S. District Courts

1 (2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219558.pdf [https://perma.cc/D9HU-35DA]. ↑
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 28 U.S.C., including §§ 2254, 2255). ↑
See, e.g., Teague v. Lane, 489 U.S. 288 (1989). ↑
See, e.g., Eve Brensike Primus, Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State-Court Criminal Convictions, 61 Ariz. L. Rev.

291, 293 (2019); Eve Brensike Primus, Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Am. Const. Soc’y Issue Brief (July 2018), https://acslaw.org/wp-content/uploads/2018/07/July-2018-Primus-Issue-Brief-Habeas-Corpus.pdf [https://perma.cc/TM4T-WXT5]; Leah M. Litman, Legal Innocence and Federal Habeas, 104 Va. L. Rev. 417 (2018). ↑
David Wolitz, The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 BYU L. Rev.

1277, 1287 (2009) (explaining that coram nobis is the “companion writ to habeas corpus . . . in essence, habeas for those not in federal custody”). ↑
William G. Wheatley, Coram Nobis Practice in Criminal Cases, 18 Am. Jur. Trials 1, § 1 (1971; updated 2020) (footnote omitted). ↑
Wolitz, supra note 163, at 1283. ↑
United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). ↑
Wolitz, supra note 163, at 1283. ↑
7 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 28.9(a) at 378 (4th ed. 2015) (citation and internal quotation marks omitted); Wolitz, supra note 163, at 1287 (“[In United States v. Morgan, 346 U.S. 502 (1954)], the Court effectively created a companion writ to habeas corpus. Coram nobis became, in essence, habeas for those not in federal custody.”). ↑
Wolitz, supra note 163, at 1283–84; Kathleen M. Bure, Note, Coram Nobis and State v. Stinney: Why South Carolina Should Revitalize America’s Legal “Hail Mary,” 68 S.C. L. Rev. 917, 923 (2017). ↑
United States v. Denedo, 556 U.S. 904, 912–13 (2009); United States v. Morgan, 346 U.S. 502, 512 (1954) (indicating writ is available for “errors of the most fundamental character”) (citation and internal quotation marks omitted); LaFave et al., supra note 168, at 378; Wolitz, supra note 163, at 1286 (“[Morgan] transformed coram nobis from its traditional function as a means for curing factual errors, unknown to the trial court, to a new function of curing any error of ‘the most fundamental character,’ including legal error.”). ↑
See, e.g., United States v. Akinsade, 686 F.3d 248, 256 (4th Cir. 2012) (ineffective assistance of counsel is a “fundamental error necessitating coram nobis relief”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (granting relief after the Supreme Court found mail fraud statute did not cover acts for which defendants were convicted); Wolitz, supra note 163, at 1289–91 (discussing federal circuit courts’ application of Morgan and the type of claims these courts tend to consider as triggering coram nobis relief). ↑
See, e.g., State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015) (granting writ based on ineffective assistance of counsel); State v. Sinclair, 49 A.3d 152, 157–58 (Vt. 2012) (concluding coram nobis can be used to challenge defective criminal convictions); Magnus v. United States, 11 A.3d 237, 246 (D.C. 2011) (“[E]ven if the error claimed by Magnus was a legal one . . . he still may pursue coram nobis relief.”); Skok v. State, 760 A.2d 647, 660 (Md. 2000) (holding that the scope of coram nobis includes errors of a constitutional or fundamental nature on public policy grounds); Chambers v. State, 158 So. 153, 158–59 (Fla. 1934) (holding that coram nobis can be used where there is evidence of coerced confessions); Bure, supra note 169, at 929 (noting court granted coram nobis relief based on coerced confession, ineffective assistance of counsel, failure to select an impartial jury, and execution of a minor). ↑
346 U.S. at 512 (citation and internal quotation marks omitted). ↑
Wolitz, supra note 163, at 1284. ↑
Id. ↑
Id. at 1289; see also United States v. Doe, 867 F.2d 986, 988, 990 (7th Cir. 1989) (denying petition for writ because defendant could not show erroneous jury instructions would have justified habeas relief); Pitts v. United States, 763 F.2d 197, 199 n.1 (6th Cir. 1985) (per curiam) (noting the standards for granting relief under a habeas statute and through a writ of coram nobis are “substantially the same”); United States v. Little, 608 F.2d 296, 299 (8th Cir. 1979) (interpreting defendant’s appeal from denial of coram nobis relief to be a petition under a habeas statute since he remained in custody and the two remedies were “substantially equivalent”). ↑
Wolitz, supra note 163, at 1290. ↑
See, e.g., Sibron v. New York, 392 U.S. 40, 55, 57 (1968). ↑
See, e.g., Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987). ↑
United States v. Keane, 852 F.2d 199 (7th Cir. 1988); United States v. Bush, 888 F.2d 1145 (7th Cir. 1989); United States v. Craig, 907 F.2d 653 (7th Cir. 1990). ↑
Wolitz, supra note 163, at 1292–99. ↑
Keane, 852 F.2d at 203 (“[Petitioner] must demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences).”). ↑
Craig, 907 F.2d at 658. ↑
Keane, 852 F.2d at 203; Bush, 888 F.2d at 1148–50. ↑
See United States v. Castano, 906 F.3d 458, 463 (6th Cir. 2018); United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th Cir. 1996); Hager v. United States, 993 F.2d 4, 5 (1st Cir. 1993); Nicks v. United States 955 F.2d 161, 167 (2d Cir. 1992); United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992); United States v. Stoneman, 870 F.2d 102, 106 (3d Cir. 1989); see also Stewart v. United States, 446 F.2d 42, 43–44 (8th Cir. 1971) (per curiam) (denying coram nobis relief for defendant who did not demonstrate “present adverse consequences”). ↑
Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. New York, 392 U.S. 40, 55–57 (1968)). ↑
Id. at 606. ↑
Id. ↑
Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984); Hirabayashi, 828 F.2d at 592. ↑
Margaret Chon, Remembering and Repairing: The Error Before Us, In Our Presence, 8 Seattle J. for Soc. Just. 643, 646 (2010). ↑
Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943); Yasui v. United States, 320 U.S. 115 (1943). Cf. Ex parte Endo, 323 U.S. 283 (1944) (declining to address the constitutional arguments, the Court ultimately ruled in favor of Endo’s challenge on statutory grounds). ↑
Hirabayashi, 320 U.S. at 100–01; Korematsu, 323 U.S. at 219–20. ↑
Korematsu, 584 F. Supp. at 1409–10; Hirabayashi, 828 F.2d at 593. ↑
Korematsu, 584 F. Supp. at 1410. See also Hirabayashi v. United States, 627 F. Supp. 1445, 1447 (W.D. Wash. 1986) (detailing the evidence in Hirabayashi’s case), aff’d in part, rev’d in part by Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). The newly discovered evidence was a suppressed draft of a wartime report that specified the real rationale behind the curfew and exclusion orders aimed at Japanese Americans during the war: racial prejudice, not military exigency. Hirabayashi, 828 F.2d at 598; Wolitz, supra note 163, at 1300. In fact, contrary to the representations made to the Supreme Court during the war-era cases, there was no military basis for the exclusion order. Hirabayashi, 828 F.2d at 598; Korematsu, 584 F. Supp. at 1416–17. ↑
Korematsu, 584 F. Supp. at 1419. ↑
Hirabayashi, 828 F.2d at 608. ↑
United States v. Peter, 310 F.3d 709, 715–16 (11th Cir. 2002) (per curiam) (quoting Spencer v. Kemna, 523 U.S. 1, 12 (1998)) (“[I]t is an obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.”); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (“[P]etitioners . . . would face the remainder of their lives branded as criminals . . . .”). ↑
Mandel, 862 F.2d at 1075 n.12 (discussing how “[c]onviction of a felony imposes a status upon a person” that makes him “vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities”). ↑
Hirabayashi, 828 F.2d at 606–07. The U.S. Court of Appeals for the Eleventh Circuit has never addressed this issue. ↑
Steven J. Mulroy, The Safety Net: Applying Coram Nobis Law to Prevent the Execution of the Innocent, 11 Va. J. Soc. Pol’y & L. 1, 7 & n.33 (2003); see also Sinclair v. Louisiana, 679 F.2d 513, 514–15 (5th Cir. 1982) (discussing the scope of the prohibition on using coram nobis to attack state criminal judgments); Brooker v. Arkansas, 380 F.2d 240, 244 (8th Cir. 1967) (same); Rivenburgh v. Utah, 299 F.2d 842, 843 (10th Cir. 1962) (same). ↑
State v. Sinclair, 49 A.3d 152, 156 (Vt. 2012) (quotations and citation omitted); see also Skok v. State, 760 A.2d 647, 658–59 (Md. 2000) (explaining that while it was not binding on them, most state appellate courts that have considered Morgan have followed it). ↑
Sinclair, 49 A.3d at 156. ↑
Bure, supra note 169, at 927–29. ↑
Id. at 927. ↑
Id. ↑
Id. ↑
Id. at 928. ↑
Id. ↑
Id. ↑
Id. at 927–28. ↑
Id. at 928. ↑
Id. ↑
Id. at 927–28. Stinney’s siblings had standing to assert their brother’s rights under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 629 (1991). See Bure, supra note 169, at 925 & n.58. ↑
Bure, supra note 169, at 929. ↑
Id. ↑
See, e.g., Magnus v. United States, 11 A.3d 237, 246–47 (D.C. 2011); State v. Ledezma, No. IK83-09-0062-R1, 1989 WL 64151, at *2 (Del. Super. Ct. May 3, 1989). ↑
J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley, and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 561 & n.1 (2011). ↑
An Alford plea allows a defendant to enter a guilty plea without admitting guilt. See North Carolina v. Alford, 400 U.S. 25 (1970). ↑
State v. Hutton, 776 S.E.2d 621, 623 (W. Va. 2015). Specifically, Mr. Hutton’s trial counsel failed to inform him of the deportation consequences of his criminal conviction. Id. ↑
Ira P. Robbins, The Revitalization of the Common-Law Civil Writ of Audita Querela as a Postconviction Remedy in Criminal Cases: The Immigration Context and Beyond, 6 Geo. Immigr. L.J. 643, 645, 647 (1992). ↑
Caleb J. Fountain, Note, Audita Querela and the Limits of Federal Nonretroactivity, 70 N.Y.U. Ann. Surv. Am. L. 203, 211–14 (2014). ↑
Id. at 207. ↑
Robbins, supra note 220, at 650. ↑
Id. at 650–51, 653. ↑
Id. at 653. ↑
Id. at 656. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *6 (D. Utah Apr. 18, 2006); United States v. Ghebreziabher, 701 F. Supp. 115 (E.D. La. 1988); United States v. Salgado, 692 F. Supp. 1265 (E.D. Wash. 1988); United States v. Khalaf, 116 F. Supp. 2d 210 (D. Mass. 1999); cf. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004) (granting a petition for writ of audita querela for a legal immigrant INS sought to deport to Nigeria, though the opinion was later vacated), reh’g en banc granted, opinion vacated, No. 01-3928, 2004 U.S. App. LEXIS 15581 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004). ↑
Villafranco, 2006 WL 1049114, at *7. ↑
Id. (quoting United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir. 1994)). ↑
Doe v. I.N.S., 120 F.3d 200, 204 (9th Cir. 1997). ↑
United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990). ↑
United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991); Ayala, 894 F.2d at 426. ↑
See, e.g., Robbins, supra note 220, at 681–82; Ejelonu v. I.N.S., 355 F.3d 539, 546–47 (6th Cir. 2004); Villafranco, 2006 WL 1049114, at *11. ↑
Villafranco, 2006 WL 1049114, at *11 (quoting United States v. Reyes, 945 F.2d 862, 866 (5th Cir. 1991)). ↑
Id.; Ejelonu, 355 F.3d at 548. ↑
Villafranco, 2006 WL 1049114, at *10 (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Villafranco, 2006 WL 1049114, at *11. ↑
543 U.S. 220 (2005). ↑
Id. at 246. ↑
Robbins, supra note 220, at 672. ↑
United States v. Ghebreziabher, 701 F. Supp. 115, 116–17 (E.D. La. 1988). ↑
Id. at 116. ↑
Remarking that “[i]t is apparent that he was approached by the other individual involved to accept the food stamps initially,” the court continued:

Mr. Ghebreziabher has been an industrious member of this community for almost ten years. He has four United States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home . . . . Except for these 3 incidents, he has no convictions. His former employer, a subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working . . . . It is also likely that his family will suffer tremendously should he be deported and removed from the home.

Id. at 116–17. ↑
United States v. Salgado, 692 F. Supp. 1265, 1268 (E.D. Wash. 1988). ↑
Id. ↑
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (codified in scattered sections of 8 U.S.C. and 18 U.S.C., including at 8 U.S.C. §§ 1229, 1366–74). ↑
One other person initially received audita querela relief even after the passage of IIRIRA, as her request for immigration relief was quite distinct from the circumstances of the three individuals discussed above. Ijeoma Ejelonu petitioned for relief after the Immigration and Naturalization Service (now Immigration and Customs Enforcement) inexplicably delayed processing her application for citizenship until after her eighteenth birthday, denying her citizenship and threatening to begin deportation proceedings against her. Ejelonu v. I.N.S., 355 F.3d 539, 541 (6th Cir. 2004), rehearing en banc granted, opinion vacated, appeal dismissed. Ejelonu, originally from Nigeria, legally immigrated to the U.S. at age six with her parents and two younger sisters, all of whom were granted citizenship. Ejelonu graduated with honors from her high school, began college at Wayne State University, and maintained steady employment until the time of her arrest on criminal charges. Id. at 541–42. At age seventeen, she was charged as a juvenile with two counts of embezzlement. Id. at 542. She entered into a youthful offender program that permitted her to plead guilty to the charge, but without a judgment of conviction being entered. Id. at 542–43.

Despite her record being sealed, someone at INS obtained a copy of the record and began deportation proceedings against Ejelonu. Id. at 543. Authorities raided the Ejelonu home, seized Ejelonu, and held her for weeks, without any way to contact her family. Id. at 543. An immigration judge found her deportable for having a “conviction” for a crime of moral turpitude, and the Bureau of Immigration Appeals dismissed her appeal. Id.

Ejelonu petitioned the U.S. Court of Appeals for the Sixth Circuit for relief from deportation proceedings, which the court construed as a petition for audita querela. Id. at 544. The court found, “[w]e have no trouble concluding that the equities in this case overwhelmingly favor Petitioner—not just to the point where a reasonable person might sympathize with her plight, but to extent that to deport her under such circumstances would shock the conscience.” Id. at 550. It continued, “Audita querela is appropriate because it would be contrary to justice[] to allow the collateral consequences of Petitioner’s Youthful Trainee status to justify her deportation.” Id. at 551–52 (quotations and citation omitted). The writ prohibited the Department of Homeland Security from using Ejelonu’s youthful trainee status in determining her eligibility for deportation. Id. at 552.

Ultimately, the record is unclear as to what happened with Ejelonu. After granting a motion for rehearing en banc and vacating the panel’s opinion, the en banc court dismissed Ejelonu’s appeal by stipulation of the parties ten months after the initial decision. Ejelonu v. I.N.S., No. 01-3928, 2004 U.S. App. LEXIS 15581, at *1 (6th Cir. July 27, 2004), appeal dismissed (Oct. 18, 2004); Sanchez-Montes v. Dept. Homeland Security, No. 8:08-CV-157-T-27-TBM, 2008 WL 298967 n.10 (M.D. Fl. Jan. 31, 2008) (noting the appeal was dismissed by stipulation of the parties). Little is in the record that provides any indication as to why the parties decided to proceed in this manner. ↑
Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *1 (W.D. Wash. Jan. 18, 2008). ↑
Id. ↑
Id. at *1–3. ↑
Id. at *3. ↑
Id. at *2 (quotations and citation omitted). ↑
Id. at *5 (quotations and citation omitted). ↑
Id. (quotations and citation omitted). ↑
Id. at *6–7. ↑
United States v. Kenney, No. 99-cr-0280, 2017 WL 621238, at *1 (M.D. Pa. Feb. 15, 2017). ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. at *2. ↑
Id. ↑
Id. at *4. ↑
See, e.g., State v. Rosenfield, 142 A.3d 1069, 1076 n.6 (Vt. 2016) (“There is also a strong possibility that the related doctrine of audita querela can be utilized to collaterally attack defendant’s conviction.”); Commonwealth v. Mubarak, 68 Va. Cir. 422 (2005) (granting audita querela petition); Pitts v. State, 501 S.W.3d 803, 804 (Ark. 2016) (granting petitioner’s request to reinvest trial court with jurisdiction to pursue writ of audita querela or writ of coram nobis); Balsley v. Commonwealth, 428 S.W.2d 614, 616–17 (Ky. 1967) (explaining that audita querela and coram nobis are preserved in Kentucky law). ↑
See, e.g., State v. Hinson, 2006 WL 337031, at *2–3 (Del. Super. Ct. Feb. 10, 2006); State v. Ali, 32 A.3d 1019, 1024 (Me. 2011); State v. Davis, No. 96,688, 2007 WL 2080461, at *1 (Kan. Ct. App. July 20, 2007) (per curiam); Huston v. State, 272 S.W.3d 420, 421 (Mo. Ct. App. 2008); State v. Myers, No. 2017-UP-260, 2017 WL 4641444, at *1 (S.C. Ct. App. June 28, 2017). ↑
See, e.g., In re Sawyer, 124 U.S. 200, 210 (1888) (“The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. . . . Any jurisdiction over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned.”). ↑
Compare Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History, 86 Fordham L. Rev. 697 (2017) (discussing how crafters of the Federal Rules of Criminal Procedure made the intentional decision to ground them in legal rules and principles rather than equitable ones), with Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987) (discussing how the Federal Rules of Civil Procedure were crafted to embrace equitable rules and principles). ↑
Meyn, supra note 267, at 699; Ion Meyn, Constructing Separate and Unequal Courtrooms, 63 Ariz. L. Rev. (forthcoming 2021) (on file with author), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657250 [https://perma.cc/VA7S-D8C9] [hereinafter Meyn, Separate and Unequal]. ↑
See Meyn, Separate and Unequal, supra note 268 (discussing why and how federal criminal procedure rules ended up diverging from civil procedural rules to the advantage of the prosecution and disadvantage of the defense). ↑
According to several recent studies, fewer than 3% of state and federal criminal cases result in a jury trial. Nat’l Assoc. Crim. Def. Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 5 & n.2 (2018); see also Hon. Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99, 102–04 (2018) (arguing that what were once trial judges and criminal trial attorneys now function more as “sentencing judges” and “sentencing advocates,” respectively). ↑
See, e.g., Meyn, supra note 267, at 732 (noting a “historical resistance to considering the rights of a criminal defendant”); Meyn, Separate and Unequal, supra note 268, at 3. ↑
See, e.g., Michele Goodwin, The Thirteenth Amendment: Modern Slavery, Capitalism, and Mass Incarceration, 104 Cornell L. Rev. 899 (2019); James Gray Pope, Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist Account, 94 N.Y.U. L. Rev. 1465 (2019); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010); Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2010). ↑
Dennis Childs, Slaves of the State: Black Incarceration from the Chain Gang to the Penitentiary

77 (2015);

Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II 99 (2008); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation 99–100 (1998). ↑
Blackmon, supra note 273, at 64, 66. ↑
Pope, supra note 272, at 1528–29. ↑
Id. at 1529; Meyn, Separate and Unequal, supra note 268, at 3. ↑
Wendy Sawyer & Peter Wagner, Prison Pol’y Initiative, Mass Incarceration: The Whole Pie 2020 (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html [https://perma.‌cc/Q7PB-A4H6]. ↑
See, e.g., Nazgol Ghandnoosh, The Sentencing Project, Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Sept. 3, 2014), https://www.sentencingproject.org/publications/race-and-punishment-racial-perceptions-of-crime-and-support-for-punitive-policies/ [https://perma.cc/GD4R-J86L]. ↑
See, e.g., Rafael Prieto Curiel & Stephen Richard Bishop, Fear of Crime: The Impact of Different Distributions of Victimisation, Palgrave Comm (Apr. 17, 2018), https://doi.org/10.1057/s41599-018-0094-8 [https://perma.cc/T6G6-NSGG]. ↑
Id at 2. ↑
Ghandnoosh

,

supra note 278. ↑
See, e.g., Meyn, supra note 267, at 722 (quoting Hearing Before the Advisory Committee on Rules of Criminal Procedure, United States Supreme Court at 466 (Sept. 8–9, 1941) (statement of Asst. Att’y Gen. Holtzoff)). ↑
Jerome Hall, Objectives of Federal Criminal Procedural Revision, 51 Yale L.J. 723, 730 (1942). ↑
Id. at 728. ↑
Id. ↑
See Anna Roberts, Convictions as Guilt, 88 Fordham L. Rev. 2501 (2020); Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987 (2014). ↑
Bowers, supra note 286, at 997. ↑
Id. at 999. Bowers takes the accuracy of the guilt determination as the key; Roberts, meanwhile, draws even the accuracy of guilt determinations into question. See Roberts, supra note 286. ↑
Any doubt about this should be put to rest by the judicial and legislative responses to the so-called “progressive prosecutors” who have been elected in recent years. See, e.g., Richard A. Oppel Jr., These Prosecutors Promised Change. Their Power Is Being Stripped Away, N.Y. Times (updated Dec. 2, 2019), https://www.nytimes.com/2019/11/25/us/prosecutors-criminal-justice.html [https://perma.cc/54YQ-2FT5]; John Pfaff, A No-Holds-Barred Assault on Prosecutors, Appeal (Aug. 13, 2019), https://theappeal.org/bill-barr-prosecutors/ [https://perma.cc/8SNZ-P4DU]; Soares v. State, 121 N.Y.S.3d 790, 799–800 (N.Y. Sup. Ct. 2020). ↑
I am drawing here on Anna Roberts’s definitions of “legal guilt” and “factual guilt.” She defines “legal guilt” as “a procedurally valid conviction.” Anna Roberts, Arrests as Guilt, 70 Ala. L. Rev. 987, 994 (2019). By contrast, “factual guilt” requires a person to have committed the crime, meaning the person had the requisite actus reus and mens rea and no defense that would negate her guilt. Id. at 990. ↑
See, e.g., Blackmon, supra note 273, at

7, 67

(noting the lack of process, including the pretrial practice of “confess[ing] judgment” for Black men who were dubiously convicted of crimes and then subjected to forced labor)

.

↑
See, e.g., House v. Bell, 547 U.S. 518, 522 (2006) (finding that a convicted man claiming actual innocence had met the stringent requirements necessary to proceed with a habeas appeal despite the procedural default rule); Herrera v. Collins, 506 U.S. 390, 400 (1993) (noting that claims of actual innocence based on newly discovered evidence do not give ground to federal habeas relief without an independent constitutional violation because the purpose of federal habeas is to remedy constitutional violations, not factual errors). ↑
Yet, as Roberts cogently points out,

Our system for determining legal guilt, which sets up various processes and protections that must be honored in order to permit a valid declaration of legal guilt, is the primary proxy that we have for factual guilt. For all its imperfections, it is the best that we currently have. Only an all-seeing, all-knowing entity could speak with absolute accuracy and authority on factual guilt, and as mentioned earlier, even she would be unable to provide a definitive answer regarding certain charges that have an inescapably subjective component.

Roberts, supra note 290, at 994–95 (footnotes omitted). ↑
See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (2007); John F. Pfaff, Locked In: The True Causes of Mass Incarceration—and How to Achieve Real Reform (2017). ↑
543 U.S. 220 (2005). ↑
See, e.g., Marvin E. Frankel, Sentencing Guidelines: A Need for Creative Collaboration, 101 Yale L.J. 2043, 2044 (1992). ↑
Booker, 543 U.S. at 236–39, 244. ↑
See, e.g., William Rhodes, Ryan Kling, Jeremy Luallen & Christina Dyous, Federal Sentencing Disparity

: 2005

–20

12

at 67–68 (Bureau of Just. Stats., Working Paper, WP-2015:01, 2015) (noting that racial disparity in sentencing between Black and White males has increased since Booker). ↑
Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 111–22 (2014). ↑
Klinck, supra note 40, at 5. ↑
Id. ↑
Id. at 34. ↑
Id. at 33. ↑
Id. at 38. ↑
Id. at 268 (“If conscience relates, more or less exhaustively, to one’s whole spiritual condition, to whether one is in a state of grace or not, then it fits awkwardly with a concept of law as essentially general, externally-dictated rules.”). ↑
Id. at 207. ↑
Id. at 208. ↑
Id. ↑
Id. at 224. ↑
In order to ensure equity’s survival, the chancery had to effectively respond to these criticisms. The chancery had to “present what it dispensed as being more like regular law.” Id. at 225. “[R]egular equity,” in the words of Lord Nottingham, had to “speak as much to order and consistency of process” as common law, which meant that equity needed to follow some rules, both procedural and substantive. Id. at 253. Thus arose a distinction between “regular” or “chancery” equity and a broader conception of equity. “Regular equity,” or “chancery equity” became regulated and ruled, less strictly than the common law initially, id. at 253–54, but ultimately, in a manner not so different. ↑
Samet

,

supra note 41, at 2. ↑
Id. at 10. ↑
Id. at 11. ↑
Id. at 44. ↑
Id. at 46. ↑
Id. at 49. ↑
Id. at 52. ↑
Id. at 57 (quoting Jeremy Waldron, Inhuman and Degrading Treatment: The Words Themselves, 23 Can. J. L. & Juris. 269, 284 (2010)). ↑
Id. at 58–59. ↑
Id. at 61. ↑
572 U.S. 701, 708 (2014) (citing Weems v. United States, 217 U.S. 349, 378 (1910) & Trop v. Dulles, 356 U.S. 86, 101 (1958)) (internal quotations omitted). ↑
Of course, many would assert that the Supreme Court has abdicated its moral duty with regard to its Eighth Amendment “evolving standards of decency” jurisprudence. Cf. United States v. Higgs, No. 20-927, slip op. at 1–2, 5–8, 10 (U.S. Jan. 12, 2021) (Sotomayor, J., dissenting) (criticizing the Court’s recent decisions not to intervene in cases involving federal exactions, including in a case involving a likely successful Eighth Amendment challenge). ↑
Romar v. Fresno Cmty. Hosp. & Med. Ctr., 583 F. Supp. 2d 1179, 1186 (E.D. Cal. 2008) (citing Richardson v. Kier, 34 Cal. 63, 75 (1867)). ↑
Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev.

99, 112–13 (2015) (discussing empirical evidence that judges still tend to be White, male, older than the average American, and much more educated). ↑
Pope, supra note 272, at 1527. ↑
163 U.S. 537 (1896). ↑
323 U.S. 214 (1944). ↑
Plessy, 163 U.S. at 543. ↑
Id. at 550–51 (emphasis added). ↑
Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954). ↑
Korematsu, 323 U.S. at 216, 218. ↑
Korematsu v. United States, 584 F. Supp. 1406, 1416–19 (N.D. Cal. 1984). ↑
Id. at 1419. ↑
Id. at 1413. ↑
Samet

,

supra note 41, at 61. ↑
See, e.g., Susan A. Bandes, The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law, Culture & Humans 293, 295–97 (2007); Michael Tonry, Rethinking Unthinkable Punishment Policies in America, 46 UCLA L. Rev. 1751, 1781–86 (1999); Stuart Hall, Chas Critcher, Tony Jefferson, John Clarke & Brian Roberts, Policing the Crisis: Mugging, the State, and Law and Order 3–28 (1978); Stanley Cohen, Folk Devils & Moral Panics: The Creation of the Mods and Rockers (Routledge Classics 2011) (1972). ↑
Bandes, supra note 336, at 294 (footnotes omitted). ↑
Tonry, supra note 336, at 1787 (footnotes omitted). ↑
Id. at 1787–88. ↑
Id. at 1788. ↑
Bandes, supra note 336, at 294. ↑
Id. at 301. ↑
Id. at 294. ↑
Id. at 310 (quoting Scott Turow, Ultimate Punishment: A Lawyer’s Reflections on Dealing with the Death Penalty 34 (2003)). ↑
Id. at 309–10, 312. ↑
Id. at 313–14. ↑
Id. at 296. ↑
Tonry, supra note 336, at 1753. ↑
Id. at 1756. ↑
Bandes, supra note 336, at 296, 315–16. ↑
In the criminal legal system, morality will almost always be at play because the criminal law is anchored in morality; it is a “functional mechanism that helps set and then illuminate the boundaries of acceptable behavior.” Tonry, supra note 336, at 1764. ↑
Samet

,

supra note 41, at 6 (“[A] clear division between Equity and Common Law in the US is mostly restricted to the area of remedies . . . .”). This is distinct from England and Wales, where equity affects large areas of substantive private law. Id. ↑
Id. at 16–17. ↑
Bey v. United States, Crim. No. 03-18-1, 2009 WL 1033655, at *1 (D. Del. Apr. 16, 2009). ↑
The Second Chance Act of 2007, 18 U.S.C. §§ 3621, 3624. ↑
Bey, 2009 WL 1033655, at *3 n.1. ↑
Id. at *3. ↑
Id. Although Bey’s juvenile charges included attempted robbery, assault on a mail carrier, and obstructing passage of the U.S. mail, he asserted the obstructing passage charge was the only count of conviction. Id. ↑
Id. ↑
Id. ↑
Id. (quoting United States v. Dunegan, 251 F.3d 477, 480 (3d Cir. 2001)). ↑
As the court noted:

A federal court invokes ancillary jurisdiction as an incident to a matter where it has acquired jurisdiction of a case in its entirety and, as an incident to the disposition of the primary matter properly before it. It may resolve other related matters which it could not consider were they independently presented. Thus, ancillary jurisdiction permits a court to only dispose of matters related to the original case before it. The doctrine of ancillary jurisdiction does not give district courts the authority to reopen a closed case whenever a related matter subsequently arises. The Supreme Court in recent years has held that ancillary jurisdiction is much more limited.

Dunegan, 251 F.3d at 478–79 (internal citations omitted). ↑
Id. at 479–80. ↑
Id. at 480 (quotations omitted). ↑
See, e.g., United States v. Sumner, 226 F.3d 1005, 1010–11 (9th Cir. 2000). But see United States v. Smith, 940 F.2d 395 (9th Cir. 1991) (listing cases where the Ninth Circuit recognized equitable power of the court to grant expungements in rare cases). ↑
United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977). ↑
Id. (quotations omitted). ↑
Id. ↑
Id. (quotations omitted). ↑
Id. (quoting United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), cert. denied, 423 U.S. 836 (1975)). ↑
Id. at 540. ↑
Id. (citing Sullivan v. Murphy, 478 F.2d 938, 968–71 (D.C. Cir. 1973)). ↑
Id. (citing United States v. McLeod, 385 F.2d 734, 737–38 (5th Cir. 1967)). ↑
Id. (citing Wheeler v. Goodman, 306 F. Supp. 58, 66 (W.D.N.C. 1969)). ↑
Id. (citing Kowall v. United States, 53 F.R.D. 211, 212 (W.D. Mich. 1971)). ↑
Id. at 539. ↑
United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). ↑
Id.; see also Geary v. United States, 901 F.2d 679, 679–80 (8th Cir. 1990) (holding that a federal court may only exercise its inherent equitable power to expunge in cases of extraordinary circumstances); Allen v. Webster, 742 F.2d 153, 154–55 (4th Cir. 1984) (same); Menard v. Saxbe, 498 F.2d 1017, 1023–25 (D.C. Cir. 1974) (same). ↑
United States v. Meyer, 439 F.3d 855, 859 (8th Cir. 2006) (emphasis added). ↑
18 U.S.C. § 3607; 21 U.S.C. § 844. ↑
See, e.g., United States v. Travers, 514 F.2d 1171, 1175, 1179 (2d Cir. 1974) (granting expungement of a federal conviction after the Supreme Court rejected the statutory interpretation under which the conviction was affirmed; the court concluded that the defendant’s actions simply were not illegal). This author was unable to find any state cases where a court granted a writ of mandamus to expunge a criminal record. ↑
Interestingly, that was not always the case. In 1950 Congress passed the Federal Youth Corrections Act, which allowed eighteen- to twenty-six-year-olds to set aside their convictions if the court released them early from probation. As Margaret Colgate Love wrote in Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1709 & n.15, 1710 (2003):

[T]he basic idea was to have a court grant relief that would be more complete than a pardon, and more respectable than an automatic or administrative restoration of rights. The purpose of judicial expungement or set-aside was to both encourage and reward rehabilitation, by restoring social status as well as legal rights.” Id. at 1710. The statute was repealed in 1984.

Id. at 1716.

In 1962, the National Council on Crime and Delinquency (“NCCD”) proposed a model statute that would give the court statutory authority to “annul” convictions. Id. at 1710. The intended effect was to restore a person’s civil rights and allow them to state that they had not been convicted when filling out applications. Id. The NCCD proposal also would have required employers and licensing boards to ask applicants: “Have you ever been arrested for or convicted of a crime which has not been annulled by a court?” Id. (footnote omitted).

That same year, a provision of the American Law Institute’s Model Penal Code (“MPC”) empowered the sentencing court, “after an offender had fully satisfied the sentence, to enter an order relieving ‘any disqualification or disability imposed by law because of the conviction.’ After an additional period of good behavior, the court could issue an order ‘vacating’ the judgment of conviction.” Id. at 1711 (citing MPC § 306.6) (footnotes omitted). According to Love, the MPC provision “intended to accomplish the maximum by way of legal and social restoration for rehabilitated ex-offenders. But it was specifically not intended to remove the conviction from the records, or indulge the fiction that the conviction had somehow never taken place.” Id. at 1712 (footnotes omitted).

The House Committee on the Judiciary undertook another sentencing reform bill that included provisions unreasonably restricting eligibility for public benefits and employment based on a federal conviction, extending the Youth Corrections Act to all first-time offenders so that all those records would be sealed for most purposes and the individual could deny the conviction. Id. at 1715–16. “The goal of the legislation was to restore the convicted person to the same position as before the conviction.” Id. at 1716 (quotations omitted). This bill was ultimately defeated by the competing Senate bill, the Sentencing Reform Act of 1984. Id. ↑
Gabriel J. Chin, Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions, 102 Marq. L. Rev.

233, 234–35 (2018); Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 627 (2006). ↑
Sandra G. Mayson, Collateral Consequences and the Preventive State, 91 Notre Dame L. Rev. 301, 302 (2015). ↑
Chin, supra note 383, at 235; Lollar, supra note 299, at 123–30; Wayne A. Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103, 1104–09 (2013). ↑
J. McGregor Smyth, Jr., From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings, Crim. Just., Fall 2009, at 42, 42. ↑
The need for such writs would likely be minimized if the legal system were to adopt I. Bennett Capers’s recommendations for returning some prosecutorial authority to the people. I. Bennett Capers, Against Prosecutors, 105 Cornell L. Rev. 1561 (2020). ↑
Petition for Peremptory Writ of Mandamus (In the First Instance) at 2, State ex rel. Vernon v. Adrine, No. 103149 (Ohio Ct. App. 2015), https://www.scribd.com/document/2690‌46322/Writ-of-Mandamus-Peremptory-in-Tamir-Rice-case [https://perma.cc/LS58-QVZH]. ↑
Ohio Rev. Code Ann. § 2935.09(D) (LexisNexis 2006). ↑
Petition for Peremptory Writ, supra note 388, at 2–3. ↑
Id. at 3. ↑
Ohio Rev. Code Ann. § 2935.10(A) (LexisNexis 1973). ↑
Id. ↑
State ex rel. Vernon v. Adrine, No. 103149, 2015 WL 4389579, at *1 (Ohio Ct. App. 2015). ↑
Id. at *3. ↑
Id. at *4 (Laster Mays, J., dissenting). ↑
477 F.2d 375 (2d Cir. 1973). ↑
Heather Ann Thompson, Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy 153–54, 170 (2016) (citations omitted). ↑
Jeff Z. Klein, Niagara Frontier Heritage Project, Heritage Moments: The Attica Prison Uprising – 43 Dead and a Four-Decade Cover-Up, NPR (Sept. 10, 2018), https://news.wbfo.‌org/post/heritage-moments-attica-prison-uprising-43-dead-and-four-decade-cover [https://perma.cc/TL3L-M94T]. The eleven included prison guards and civilian workers. Id. Although one prison guard and three of those incarcerated appear to have been killed prior to state police entering the prison, id., the remainder of the deaths were at the hands of state police. Thompson, supra note 398, at 230–31, 238–39. ↑
Inmates of Attica, 477 F.2d at 378. ↑
Id. at 377. ↑
Id. at 379 (quoting United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968)). ↑
Id. ↑
Id. ↑
Id. at 379–80 (citing United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)). ↑
Id. at 380. ↑
Id. The court went on:

At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong “test” case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e.g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws?

Id. ↑
Id. at 380–81 (internal citations omitted). ↑
Id. at 382. ↑
See, e.g., Sanders-El v. Commonwealth, No. 2010-CA-001964-MR, 2011 WL 2935854, at *1–2 (Ky. Ct. App. July 22, 2011); Konya v. Dist. Att’y of Northampton Cnty., 669 A.2d 890, 892–93 (Pa. 1995); Bartlett v. Caldwell, 452 S.E.2d 744, 744 (Ga. 1995); Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir. 1987) (per curiam); Powell v. Katzenbach, 359 F.2d 234, 234 (D.C. Cir. 1965) (per curiam). ↑
State ex rel. Capron v. Dattilio, 50 N.E.3d 551, 553 (Ohio 2016); State ex rel. Evans v. Columbus Dept. of Law, 699 N.E.2d 60, 61 (Ohio 1998) (per curiam). ↑
Cf. Capron, 50 N.E.3d at 553. ↑
Under Ohio’s law, a judge does not abuse her discretion if she refers the case to the prosecutor’s office for further investigation; such a referral discharges the judge’s duty under the statute. See, e.g., State ex rel. Brown v. Nusbaum, 95 N.E.3d 365, 367–68 (Ohio 2017); State ex rel. Strothers v. Turner, 680 N.E.2d 1238, 1239 (Ohio 1997) (per curiam). ↑
Relatedly, courts almost always deny writs of mandamus when the defendant has cooperated in a criminal case after sentencing and seeks to have the court require the government to recommend a reduction in sentence for providing “substantial assistance” under Rule 35(b). See, e.g., United States v. Mells, 481 F. App’x 563, 564–66 (11th Cir. 2012) (per curiam); United States v. Duncan, 280 F. App’x 901, 903–04 (11th Cir. 2008) (per curiam); United States v. Tadlock, 346 F. App’x 977, 978 (4th Cir. 2009) (per curiam); United States v. Murray, 437 F. App’x 103, 105 (3d Cir. 2011) (per curiam). ↑
See, e.g., United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007). But see Smith v. Groose, 205 F.3d 1045, 1051 (8th Cir. 2000) (finding violation of due process when state prosecuted two different defendants on factually contradictory theories); Thompson v. Calderon, 120 F.3d 1045, 1050–51 (9th Cir. 1997) (en banc) (noting that “a serious question exists as to whether [the defendant] was deprived of due process of law by the prosecutor’s presentation of flagrantly inconsistent theories . . . to the two juries that separately heard” the two co-defendants’ cases), rev’d on other grounds, 523 U.S. 538 (1998). ↑
See supra Subsection I.C.1.b. ↑
548 U.S. 140 (2006). ↑
Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 545–47 (2007). ↑
Gonzalez-Lopez, 548 U.S. at 145. ↑
Id. ↑
Id. at 147–48 (footnotes omitted). ↑
Id. at 146. ↑
Id. at 148. ↑
Id. at 151. ↑
Id. at 152 (citations omitted). ↑
Justice Scalia wrote:

We have little trouble concluding that erroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the ‘framework within which the trial proceeds,’—or indeed on whether it proceeds at all.

Id. at 150 (citations omitted). ↑
Norman Lefstein, In Search of Gideon’s Promise: Lessons from England and the Need for Federal Help, 55 Hastings L.J. 835, 917 (2004). ↑
Id. at 918. ↑
Id. at 919. ↑
Id. at 863, 886. ↑
Id. at 863. ↑
Compare id. at 868 (“[T]here is little retained criminal defense work in England.”) with Hoeffel, supra note 418, at 545 (“[O]nly . . . ten percent of criminal defendants . . . retain counsel . . . .”). ↑
Lefstein, supra note 427, at 893. ↑
Id. ↑
Id. at 915. ↑
Id. ↑
Id. ↑
Hoeffel, supra note 418, at 540–42. ↑
Id. at 543–44. ↑
Id. at 544–45. ↑
Id. at 548; United States v. Gonzalez-Lopez, 548 U.S. 140, 146–48 (2006). ↑
Moran, supra note 121, at 1341–42. ↑
In re United States, 397 F.3d 274, 286–87 (5th Cir. 2005). ↑
District of Columbia v. Fitzgerald, 953 A.2d 288, 291–92 (D.C. 2008). ↑
United States v. Choi, 818 F. Supp. 2d 79, 82 (D.D.C. 2011). ↑
Wolitz, supra note 163, at 1292–99. ↑
United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988) (requiring the petitioner to “demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences)”). ↑
Id. at 203; United States v. Bush, 888 F.2d 1145, 1148–50 (7th Cir. 1989). ↑
See supra Subsection I.C.2. ↑
United States v. Craig, 907 F.2d 653, 658 (7th Cir. 1990). ↑
Hirabayashi v. United States, 828 F.2d 591, 605–06 (9th Cir. 1987) (citing Sibron v. United States, 392 U.S. 40, 55–57 (1968)). ↑
Kessack v. United States, No. C05-1828Z, 2008 WL 189679, at *2 (W.D. Wash. 2008) (internal quotations omitted). ↑
Id. at *5. ↑
Id. (internal quotations omitted). ↑
Id. at *6. ↑
Fountain, supra note 221, at 241–45; Teague v. Lane, 489 U.S. 288, 310 (1989) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”). ↑
Fountain, supra note 221, at 239 (quoting Carrington v. United States, 503 F.3d 888, 893 (9th Cir. 2007)). ↑
Ejelonu v. I.N.S., 355 F.3d 539, 548 (6th Cir. 2004); Fountain, supra note 221, at 239. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah Apr. 18, 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
A State-by-State Look at Coronavirus in Prisons, Marshall Project (updated Nov. 12, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons [https://perma.cc/YRN2-NPXR]. ↑
Id. ↑
Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, Health Affs. Blog (Mar. 26, 2020), https://www.health‌affairs.org/do/10.1377/hblog20200324.784502/full/ [https://perma.cc/H6FV-TNT5]. ↑
Id. ↑
Kelly Davis, Coronavirus in Jails and Prisons, Appeal (July 30, 2020), https://theappeal.org/coronavirus-in-jails-and-prisons-36/ [https://perma.cc/E6AP-Q2XR]. ↑
Villafranco v. United States, No. Civ. 05-CV-368, 2006 WL 1049114, at *2 (D. Utah 2006) (quoting Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946)). ↑
Numerous thoughtful and consequential proposals abound, including discussions about abolishing prisons, see, e.g.,

Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156 (2015); Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California

(2007);

Angela Y. Davis, Are Prisons Obsolete?

(2003);

defunding the police and putting that funding into other resources, such as housing and education, see, e.g., Keeanga-Yamahtta Taylor, How Do We Change America?,

New Yorker (June 8, 2020), https://www.newyorker.com/news/our-columnists/how-do-we-change-america?itm_content=footer-recirc [https://perma.cc/J6GB-2PWC]; Amna A. Akbar, How Defund and Disband Became the Demands, N.Y. Rev. Books (June 15, 2020), https://www.nybooks.com/daily/2020/06/15/how-defund-and-disband-became-the-demands/ [https://perma.cc/UZ2P-B82Q]; investing in restorative justice programs, see, e.g., Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair

(2019);

and democratizing criminal justice processes, see, e.g., K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of Community Control, 108 Calif. L. Rev. 679 (2020); Jocelyn Simonson, The Place of “The People” in Criminal Procedure, 119 Colum. L. Rev. 249 (2019); Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405 (2018); Janet Moore, Marla Sandys & Raj Jayadev, Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform, 78 Alb. L. Rev. 1281 (2014/2015). ↑
Despite the typically slow pace of change, sometimes an event triggers unusually rapid systemic change. The killing of George Floyd by a police officer in Minneapolis appears to have been one of those triggers. Since his death on May 25, 2020, numerous states have initiated police conduct and criminal procedure reforms that typically occur after years of work. See, e.g., Weihua Li & Humera Lodhi, The States Taking on Police Reform After the Death of George Floyd, FiveThirtyEight & Marshall Project (June 18, 2020, 3:00 PM), https://fivethirtyeight.com/features/which-states-are-taking-on-police-reform-after-george-floyd/ [https://perma.cc/DT4D-T55V]; Orion Rummler, The Major Police Reforms Enacted Since George Floyd’s Death, Axios (updated Oct. 1, 2020), https://www.axios.com/police-reform-george-floyd-protest-2150b2dd-a6dc-4a0c-a1fb-62c2e999a03a.html [https://perma.‌cc/4NTE-QYL3]. Perhaps, then, systemic changes are on the horizon, making the need for the proposals in Part III of this Article less essential. Yet even in a world of reduced funding for police and less incarceration, equitable remedies play an important role in seeking and obtaining justice. ↑

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