Reevaluating School Policing

School police, often referred to as school resource officers (“SROs”), contribute to a pattern called the school-to-prison pipeline, through which Black and brown children are diverted from classrooms and into the criminal justice system. In schools that employ SROs, SROs disproportionately search and discipline Black and brown students. This leads to SROs preventing these students from accessing the educational opportunities their states have guaranteed them. Despite these racially disparate searches and seizures, many courts have failed to adequately protect students’ Fourth Amendment rights in their interactions with SROs. This Essay addresses how to ensure that all students receive full Fourth Amendment rights in school police interactions. In doing so, this Essay responds to Black Lives Matter protests, which emphasized that entrenched racial biases pervade American policing. This Essay builds on existing literature to propose a student-conscious framework for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure. By “student-conscious,” this Essay means an approach that focuses on the young person’s status as both a child and a student who is statutorily guaranteed access to education by the state.

Introduction

Soon after a police officer killed George Floyd, an unarmed Black man, in Minneapolis in May 2020, Minneapolis Public Schools severed its decades-long relationship with the city’s police department.1.Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2].Show More Other large school districts soon followed suit by cutting ties with school police regimes.2.E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ].Show More In doing so, these districts sought to end school police officers’ negative effects on students, particularly students of color—responding to Black Lives Matter (“BLM”) protests, which emphasized entrenched racial biases that pervade American policing.3.E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9].Show More However, many schools have continued to station officers, often called school resource officers (“SROs”), on their campuses due to unsubstantiated school safety justifications.4.E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I.Show More In schools employing SROs, SROs disproportionately search and discipline Black and brown students.5.E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019).Show More

Though the Fourth Amendment is meant to protect individuals from unreasonable searches and seizures, violations of students’ Fourth Amendment rights persist in school contexts.6.E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016).Show More Such persistence is two-pronged. First, although students receive certain constitutionally-rooted rights with law enforcement officers outside of school contexts—such as the right not to be searched without a warrant and probable cause unless an exception applies—courts have commonly limited these rights in relation to school officials.7.E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”).Show More Courts have often treated SROs as school officials, rather than traditional law enforcement officers, despite strong opposition to this approach.8.Infra Section II.A.Show More They therein apply a reduced Fourth Amendment search standard—which the Court created for teachers and school administrators interacting with students—to officers.9.Infra Sections II.A, III.A.Show More Second, in considering the reasonableness of a search or seizure, courts balance an individual’s interests against the government’s interests.10 10.E.g., T.L.O., 469 U.S. at 337 (plurality opinion).Show More When doing so, courts have repeatedly failed to recognize and weigh individual interests specific to schoolchildren11 11.Infra Section II.B.Show More—such as a child’s interest in accessing educational benefits.12 12.E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations).Show More

This Essay proposes a student-conscious model for considering the constitutionality of any law enforcement officer’s involvement with a student in a school-based search or seizure.13 13.This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope.Show More It builds on other scholars’ work discussing the need for the Court to clarify how a Fourth Amendment reasonableness standard should be understood in school contexts.14 14.E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002).Show More This Essay introduces students’ educational interests and socio-emotional wellbeing as explicit factors in determining whether a school-based seizure passes constitutional muster. By “student-conscious,” this Essay means an approach focused on a young person’s status as both a (1) child and (2) student to whom the state statutorily guarantees access to education.15 15.E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR].Show More There is little opportunity for success in disparate impact claims related to school policing’s disproportionate effect on children of color.16 16.Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019).Show More Yet, a student-conscious model for students’ Fourth Amendment rights could overcome disparate impact litigation’s limitations by supporting all children interacting with police officers at school—therein implicitly working against SROs’ disproportionate effects on Black and brown students.17 17.Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups).Show More

This Essay proceeds in three parts. Part I addresses how school policing hinders children’s educational interests, particularly by contributing to educational inequality for Black and brown students. Part II synthesizes the law surrounding (1) student and government interests in educational benefits and (2) students’ reduced Fourth Amendment rights in school contexts. Part III presents a student-conscious model for interpreting children’s Fourth Amendment rights with law enforcement officers at school.

I. SROs and Racial Inequality

Despite the surge in SROs following high-profile school shootings, the notion that SROs increase school safety remains unsubstantiated and heavily contested. Interest in federal SRO funding has increased after each high-profile school shooting since the Columbine massacre.18 18.Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ].Show More State laws have also explicitly encouraged more SRO involvement in schools following school shootings.19 19.For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019).Show More Due to high-profile school shootings, school officials today are more concerned about shootings occurring at their institutions.20 20.See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ].Show More Yet, (1) mass shootings in schools are rare,21 21.Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q].Show More (2) school crime rates and student fear of crimes have decreased since the early 1990s,22 22.Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010).Show More and (3) increasing investments in SROs does not necessarily lead to safer schools.23 23.Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4].Show More Despite SROs’ questionable school safety benefits, schools have hired more SROs over time, and SRO supporters argue there would be additional school shootings without SRO presence.24 24.Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting).Show More

We may not conclusively know if SROs increase school safety, but we know SROs negatively impact students.25 25.Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1.Show More Evidence indicates SROs’ use of zero-tolerance policies has pushed students from classrooms and into the juvenile justice system.26 26.See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020).Show More School discipline zero-tolerance policies require that schools apply predetermined consequences to students based on their disciplinary violations.27 27.Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police].Show More These consequences are typically severe and punitive, and they do not consider situational context, mitigating circumstances, or the gravity of the behavior at issue.28 28.Id.Show More Data regarding SROs’ effects on schools largely signal that SRO presence increases the probability of arrest and court referral for low-level offenses.29 29.E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016).Show More As SRO prevalence increased nationally, disciplinary violations conventionally managed by school administrators and teachers became more likely to be handled through law enforcement interventions.30 30.Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016).Show More Accordingly, a hallway tussle is deemed assault and class disruptions become disorderly conduct: behavior posing no real threat to school safety causes students to be taken from classrooms for delinquent and criminal prosecution.31 31.Id.Show More

Such law enforcement interventions negatively affect a young person’s education. Removing students from classrooms for disciplinary purposes, whether due to a school-based search or otherwise, causes students to miss educational opportunities, face stigma from peers and instructors, experience greater surveillance, and have a higher likelihood of leaving school before graduating.32 32.Id. at 369–70.Show More Use of force against a student at school in a disciplinary context can be particularly traumatic, adversely affecting the student’s socio-emotional growth and educational success.33 33.Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement).Show More Overall, punishing students by pushing them out of the classroom increases their likelihood of future incarceration, and there is no evidence that handling school-based discipline through zero-tolerance policies reduces school disciplinary violations.34 34.Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016).Show More Studies have shown non-punitive disciplinary practices—which focus on helping students continue their education after disciplinary violations35 35.See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981.Show More—improve a school’s climate by reducing violent acts, suspensions, and office referrals.36 36.Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016).Show More Nevertheless, harsh disciplinary practices now permeate schools serving middle-class and low-income students.37 37.See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009).Show More

Black and brown children bear the brunt of these negative educational effects. SRO biases and strict school security measures disproportionately affect Black and brown students.38 38.See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012).Show More Students of color do not commit more disciplinable school offenses than their white peers, either by individual racial group or collectively.39 39.U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions].Show More Yet, Hispanic and Black students comprise almost three-quarters of students arrested due to an incident at school or referred by schools to the police.40 40.Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD].Show More Most of these school-based arrests are for nonviolent offenses.41 41.Beyond Suspensions, supra note 39, at 42, 45 n.244, 53.Show More

These negative educational effects stemming from SROs prevent the government from achieving its well-documented interest in ensuring all children have access to education.42 42.See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights).Show More While there is no federally recognized right to education,43 43.San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).Show More the Court has held that, when a government does provide students with a basic education, it must provide that right equally.44 44.See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”).Show More In a Fourth Amendment context, the Court has described that a government’s interest in school discipline rests on promoting school order—a prerequisite for ensuring all children have the opportunity to learn.45 45.E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion).Show More Some Justices have also emphasized that the government interest rests on protecting students’ safety, which itself is key for students to have a positive learning environment.46 46.E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring).Show More However, if SROs discipline students in a manner that pushes them from classrooms without directly contributing to other students’ safety and positive learning environment, such action opposes the government’s interest in ensuring equal educational access.47 47.The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”).Show More

II. Gaps in Protecting Students’ Rights in School Searches and Seizures

Current federal law largely allows police officers to disparately impact students of color.48 48.Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1.Show More Schoolchildren of color thus need more remedial avenues when they experience disproportionate disciplinary discrimination. Though the Department of Education and Department of Justice can pursue disparate impact cases, policies associated with different political administrations can strengthen or weaken the departments’ civil rights enforcement capacities.49 49.E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35].Show More To protect students from disparate negative educational opportunities, civil rights advocates must not rely on government entities’ intervention. Such efforts could end when, for example, a presidential administration transition occurs.50 50.Supra note 49 and surrounding text.Show More Instead, litigants must consider new avenues for protecting students’ constitutional rights in student-SRO interactions long-term.

A. Educational Interests and the Fourth Amendment

When considering Fourth Amendment standards surrounding school searches, the Court has discussed the importance of the government’s interest in ensuring students receive an education. Before SRO prevalence in American public schools, the Court attempted to support students’ educational interests by preserving the “informality of the student-teacher relationship”—through limiting students’ traditional Fourth Amendment protections in relation to “school officials.”51 51.T.L.O., 469 U.S. at 340 (plurality opinion).Show More In New Jersey v. T.L.O., the Court abandoned traditional probable cause and warrant requirements for “school officials” conducting searches of students on school grounds.52 52.Id. at 340–41.Show More In place of the traditional requirements, the Court put forward an approach balancing “the individual [student]’s legitimate expectations of privacy and personal security; [and] the government’s need for effective methods to deal with breaches of public order.”53 53.Id. at 337.Show More

T.L.O. considered educational interests only in terms of the government’s interest in promoting education for most students, failing to also consider the educational interests of an individual child searched by school officials. The Court concluded schoolchildren in public schools have legitimate expectations of privacy that could be violated by searching their personal property.54 54.Id. at 337–38.Show More The Court also recognized teachers and administrators have a “substantial interest . . . in maintaining discipline in the classroom and on school grounds.”55 55.Id. at 339.Show More Thus, the Court sought to weigh the individual privacy interest of a searched student against a “school’s equally legitimate need to maintain an environment in which learning can take place.”56 56.Id. at 340.Show More

To balance a “schoolchild’s legitimate expectations of privacy” against the school’s overall interest in ensuring students can access education, the T.L.O. plurality ruled that school officials could search students based on “the reasonableness, under all the circumstances, of the search.” 57 57.Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay).Show More The plurality concluded that, ordinarily, when “a teacher or other school official” searches a student, as long as there are “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school,” the search is “justified at its inception.”58 58.T.L.O., 469 U.S. at 341–42 (citation omitted).Show More A search by a teacher or other school official will be considered “reasonably related” to the circumstances initially causing the search as long as “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”59 59.Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”).Show More

The Court did not intend T.L.O.’s reasonableness standard to extend to students’ Fourth Amendment rights in relation to law enforcement officers. The plurality emphatically rooted the T.L.O. holding in the relationship between educators and students, recognizing “a certain degree of flexibility in school disciplinary procedures” and “the value of preserving the informality of the student-teacher relationship.”60 60.469 U.S. at 340 (plurality opinion).Show More In their concurrences, Justices Powell and Blackmun differentiated between searches by traditional school officials—such as teachers and administrators—and searches by police.61 61.Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”).Show More However, the T.L.O. Court declined to address the role of school searches “in conjunction with or at the behest of law enforcement agencies.”62 62.Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”).Show More

Since T.L.O., the Court has belabored that students’ limited Fourth Amendment rights in school search contexts depend on whether a search, or its effects, involves law enforcement participation.63 63.See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023.Show More Board of Education v. Earls and Vernonia School District 47J v. Acton, cases considering whether schools could require students to submit a urinalysis drug test to participate in extracurricular activities, held the urinalysis drug test requirements did not violate the Fourth Amendment.64 64.Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65.Show More In both cases, the Court emphasized law enforcement would not obtain the drug test results, so students would not face delinquency or criminal charges.65 65.Earls, 536 U.S. at 833; Acton, 515 U.S. at 658.Show More Students would miss non-scholastic opportunities66 66.Earls, 536 U.S. at 833–34.Show More—but their states’ statutorily guaranteed educational benefits would not be disrupted.67 67.Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).Show More

Judicial precedent also supports that searches by school officials still require traditional warrant and probable cause standards when the search is “extensive[ly] entangle[d]” with law enforcement.68 68.Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”).Show More Reduced Fourth Amendment standards are only permitted when a search fulfills “special needs, beyond the normal need for law enforcement . . . .”69 69.New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).Show More When law enforcement is involved in a search outside of a school context, the Court has held a close analysis is necessary to determine whether a legitimate special need can be distinguished from collecting evidence for law enforcement purposes.70 70.E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence).Show More Yet, many state and federal courts have still extended the T.L.O. standard to SROs, therein limiting students’ Fourth Amendment rights in school settings.71 71.A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs).Show More Further, although T.L.O. only considered students’ Fourth Amendment rights in relation to a school-based search, courts have also applied T.L.O.’s reasonableness standard to school-based seizures.72 72.E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003).Show More

B. Reasonableness and School-Based Seizures

Without clarification regarding how to understand reasonableness in an SRO-led school-based search or seizure of a student, some circuits have ignored students’ educational interests. For example, in the Sixth Circuit, in a case in which a seventh-grader was handcuffed after being involved in two school fights, the court described the need to determine if an officer’s actions were “objectively reasonable.”73 73.Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001).Show More The court overlooked the way an experience such as handcuffing could be more traumatic for a student than an adult, based on his age, and how the incident could hinder his future educational opportunities.74 74.Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson).Show More

Special needs searches such as those T.L.O. anticipates fall under the “objective reasonableness” umbrella—an umbrella that also includes excessive force.75 75.Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021).Show More Courts adapt the objective reasonableness standard to weigh school-specific reasonableness factors when considering a students’ Fourth Amendment rights.76 76.E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”).Show More This reasonableness standard necessitates “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing government interests at stake.”77 77.Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”).Show More The Court has held that determination regarding whether a law enforcement officer’s actions are “objectively reasonable” cannot consider an officer’s “underlying intent or motivation.”78 78.Graham, 490 U.S. at 397 (citations omitted).Show More This effectively forecloses any argument that a seizure is unreasonable based on an officer’s implicit biases.79 79.See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers).Show More Further, the Court has emphasized the Fourth Amendment reasonableness test “is not capable of precise definition or mechanical application”80 80.Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).Show More and therefore “requires careful attention to the facts and circumstances of each particular case.”81 81.Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019).Show More Lower courts, in applying the Fourth Amendment objective reasonableness standard to children, thus must fully consider the specific facts and circumstances inherent to childhood and students’ educational interests, as Part III discusses.

Courts have commonly ignored students’ status as children when determining if a school-based search or seizure is reasonable. For example, the Tenth Circuit has treated a nine-year-old more like an adult than a child when determining an SRO acted reasonably by using a twist-lock to “command [the child’s] compliance.”82 82.Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014).Show More After the SRO grabbed a sixty-seven-pound nine-year-old who was sitting quietly in a hallway, the child responded by grabbing the SRO’s arm.83 83.Id.Show More The court emphasized that “[a]n arrestee’s age and small demeanor do not necessarily undermine an officer’s concern for safety and need to control the situation.”84 84.Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure).Show More The court thus unrealistically determined a reasonable officer could view a small child grabbing her arm as “an act of violent resistance” and a safety concern.85 85.Hawker, 591 F. App’x at 675.Show More

Fortunately, some circuits have taken an explicitly child-conscious approach when considering reasonableness of an SRO’s seizure of a student, though not an explicitly student-conscious approach. That is, unsurprisingly, as common sense and the Court counsel,86 86.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context).Show More they implicitly consider students’ status as children when determining objective reasonableness—assessing children’s size, lack of maturity, and general nature in assessing the reasonableness of force used against them. For example, the Eleventh Circuit determined that an SRO, in handcuffing a nine-year-old child after escorting her out of gym class because she vaguely threatened her physical education teacher when he told her to do jumping jacks, unreasonably seized her.87 87.Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006).Show More Taking a child-conscious approach, the court described, “[T]he handcuffing was excessively intrusive given [the student’s] young age and the fact that it was not done to protect anyone’s safety.”88 88.Id. at 1306.Show More The Fourth Circuit has likewise described youth as an important factor in deciding if handcuffing is an appropriate use of force, emphasizing courts must be mindful of the way criminally punishing young students can have long-lasting effects on children’s future success, therein implying the need to consider students’ educational interests.89 89.E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018).Show More Similarly, the Ninth Circuit recognized handcuffing a child was inherently unnecessary, i.e., unreasonable, for achieving the government’s interest in maintaining school order—ruling that other mechanisms should have instead been used to support the child’s own educational interests. 90 90.C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014).Show More

III. A Student-Conscious Approach to Fourth Amendment Protections at School

Building on legal scholarship and empirical evidence, Part III proposes a student-conscious model for deciding whether a school-based search or seizure of a student by law enforcement officers is constitutional. This model (1) makes explicit how existing Fourth Amendment precedent relates to students, while (2) aiming to protect students—of all racial backgrounds—from negative emotional and educational impacts tied to searches and seizures. In doing so, such a model could particularly benefit students of color disproportionately impacted by school discipline.

A. Adopting a School-Specific Reasonableness Standard for Students

The Supreme Court has ruled that determining “reasonableness under all the circumstances” for a school-based Fourth Amendment search requires balancing an individual child’s interests against governmental interests.91 91.New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).Show More In so ruling, the Court recognized that a student’s interests should only be limited to the extent necessary to accommodate the government’s interests.92 92.T.L.O., 469 U.S. at 341–42; Acton,515 U.S. at 656.Show More Furthermore, the Court has expressed that (1) procedural protections for students’ educational interests and socio-emotional growth are important,93 93.E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975).Show More (2) age is relevant both in considering how a student interprets a police interaction94 94.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More and evaluating Fourth Amendment issues related to schoolchildren,95 95.T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375.Show More and (3) overly-invasive treatment of minors violates Fourth Amendment privacy rights.96 96.Redding, 557 U.S. at 368, 379.Show More

Building on such precedent, this Essay proposes a model by which, when a school-based search or seizure by law enforcement officers occurs, courts consider a student’s educational interests, socio-emotional vulnerability, age, and (in the case of a seizure) stature—in addition to more traditional Fourth Amendment standards such as privacy and security—when balancing an individual child’s interests against government interests.97 97.These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”).Show More Thus far, when considering student interests at stake in a school-based search context, the Court has focused on privacy.98 98.T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”).Show More Yet, in a school search context, which has commonly been extended to seizures, the Court recognized the need to consider “reasonableness, under all the circumstances.”99 99.T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches).Show More As cases outside the Fourth Amendment context have emphasized the importance of students’ psychological wellbeing and interests in continuing to receive an education,100 100.E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context).Show More it would be valuable to encompass these interests in a Fourth Amendment reasonableness approach for students.101 101.Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411.Show More Doing so would prevent courts from ignoring students’ educational interests and would make explicit some circuits’ implicit consideration of a plaintiff’s student status when determining reasonableness of a search or seizure.102 102.Supra Section II.B.Show More

When balancing an individual’s interest against government interests to determine reasonableness of a search or seizure, courts must weigh whether the search or seizure of one student effectively promotes a safe, orderly educational environment to such an extent that the harm to the plaintiff-child’s education is outweighed by the benefit to other children’s education.103 103.Supra notes 45–47 and accompanying text.Show More In a school-based search, the Court has explained that courts must balance (1) the “serious emotional damage” that could result from a search against (2) the governmental interest in the search, emphasizing that “[t]he indignity of [a] search does not, of course, outlaw it, but it does implicate the rule of reasonableness. . . .”104 104.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18.Show More Governmental interest encompasses local and state interests in keeping schools safe for the purpose of “maintain[ing] an environment [where] learning can take place.”105 105.New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion).Show More Despite positing this balancing test in a search context, the Court has provided little guidance regarding reasonableness in school-based seizures. This Section thus proceeds to explicate the student-conscious reasonableness model in a seizure context.

The student-conscious reasonableness model this Essay proposes recognizes balancing “serious emotional damage” against the governmental interest in a search as useful under the objective reasonableness balancing test for seizures. It provides a student-specific mode of considering “a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests[]’ against the countervailing governmental interests at stake.”106 106.Supra note 77 and surrounding text.Show More This prompts courts to consider whether a government’s interest in creating an orderly educational environment outweighs the emotional and psychological effects a seizure could have on a child.

Courts have approached such balancing inadequately. In the Tenth Circuit, for example, use of excessive force on a child, which the court deemed reasonable, led to the affected child receiving treatment for post-traumatic stress disorder.107 107.Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More The court focused on the government’s interest in creating an orderly educational environment, without considering how its decision hindered the government’s interest in supporting all students’ education.108 108.Supra note 42 and surrounding text.Show More Such selective consideration cannot continue.

In a school seizure by law enforcement officers, the governmental interest in supporting education for most students will seldom outweigh the plaintiff-child’s educational interests. The Court has recognized that only “[s]tudents whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process” may “be immediately removed from school.”109 109.Goss v. Lopez, 419 U.S. 565, 582 (1975).Show More If students do not pose such a continuing danger or threat, the educational harm caused by seizing them outweighs the seizure’s benefit to the overall student body. After all, empirical evidence indicates SRO involvement in school discipline creates a negative educational environment for all students, even those not disciplined by an SRO.110 110.Supra Part I.Show More

Further, potential student body benefits seldom outweigh the socio-emotional harm a seizure causes a child. In a search context, the Court has emphasized “adolescent vulnerability intensifies” a search’s “intrusiveness,”111 111.Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009).Show More and research indicates the same is true in seizures.112 112.Infra note 116 and surrounding text.Show More To ascertain the socio-emotional effects of a seizure on a student, courts must consider a child’s age and stature to determine the reasonableness of said seizure. The Court has long-recognized children cannot be considered “miniature adults,”113 113.E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”).Show More and has noted “childhood yields objective conclusions.”114 114.J.D.B., 564 U.S. at 275.Show More One such conclusion is that children cognitively differ from adults, making them more likely both to act out and to experience greater physical and mental harm from being subject to the use of force.115 115.See, e.g., Karteron, supra note 14, at 880.Show More Similarly, empirical evidence supports that, while anyone who is “yanked” physically by a law enforcement officer or handcuffed could be traumatized by such an occurrence, youth have a heightened risk for such trauma.116 116.Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).Show More

Along with age, considering a child’s stature is key in a school-based seizure. There are typically less restrictive ways for a law enforcement officer to discipline or restrain a child.117 117.Karteron, supra note 14, at 913.Show More Thus, as force should only be used when it is necessary to preserve governmental interests,118 118.E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989).Show More an officer should not be able to use force when a less restrictive manner of restraint exists.119 119.See, e.g., Hawker, 591 Fed. App’x. at 671.Show More

Strengthening students’ Fourth Amendment protections in school policing contexts by adopting this student-conscious framework aligns with precedent, which has recognized children’s needs for increased procedural protections in school spaces.120 120.Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015).Show More Critics may argue such a framework hinders school safety, therein hampering students’ learning opportunities. However, the Court is well-positioned to deliver guidance emphasizing procedural requirements meant to deter school searches and seizures.121 121.Id.Show More After all, in recent years, the Court has struck down state actors’ aggressive treatment of minors in school spaces, finding strip searching a student for Tylenol is overly invasive122 122.Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009).Show More and police interrogations at school must be informed by a student’s age.123 123.J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).Show More

Some critics may argue a student-conscious reasonableness standard could diminish the administrability of existing Fourth Amendment reasonableness standards.124 124.See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144.Show More In a Fifth Amendment context, Justice Alito, joined by Justices Scalia and Thomas, alleged that considering a child’s age—and therein departing from a “one-size-fits-all” reasonableness test—would be hard for police to follow and for judges to apply.125 125.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More He specifically posited it would be difficult for a judge to recognize how the “average” child or adolescent experiences a police interaction.126 126.Id. at 294 (Alito, J., dissenting).Show More Further, critics may assert a student-conscious reasonableness standard opens litigation floodgates, prompting vulnerable defendants to always argue a “one-size-fits-all reasonable-person test” must be adapted to account for their individualized characteristics.127 127.J.D.B., 564 U.S. at 283 (Alito, J., dissenting).Show More However, the student-specific nature of the proposed model protects against these critiques.

Courts commonly consider student status and age when determining children’s constitutional rights.128 128.Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models.Show More Although Justice Alito expressed concern in the Fifth Amendment context that judges may struggle to put themselves in the position of a reasonable child to understand a child-specific age-based standard,129 129.J.D.B., 564 U.S. at 293 (Alito, J., dissenting).Show More judicial precedent already indicates age and student status should be considered in First, Fourth, Fifth, and Eighth Amendment contexts.130 130.Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context).Show More Justice Alito himself has signed on to an opinion indicating agreement with this approach in the Fourth Amendment context.131 131.Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody).Show More Rather than introducing a new requirement for judges, the posited student-conscious reasonableness standard makes explicit the requirement that judges consider children’s ages when determining Fourth Amendment violations, as has already been made explicit in other constitutional contexts. This standard’s focus on age is complemented by a focus on student status, aligning with precedent regarding the government’s interest in education.132 132.Supra notes 42–47 and surrounding text; supra Section II.A.Show More As this standard distills existing precedent related to age and student-status to illuminate how the Fourth Amendment should be understood in a school context, it does not provide a basis for opening the floodgates for non-school-based Fourth Amendment litigation.

B. Cross-Ideological Support

The proposed student-conscious reasonableness model makes explicit how existing Fourth Amendment doctrine applies to schoolchildren, and has the potential to gain cross-ideological support from the Roberts Court Justices. Justice Gorsuch has expressed his distaste for the current role of policing in school discipline.133 133.A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”).Show More Justices Breyer, Roberts, and Alito all ruled school officials violated a student’s Fourth Amendment rights when strip searching the child for painkillers, basing their holding largely on the student’s vulnerability as a child.134 134.Safford, 557 U.S. at 368, 375, 379.Show More Justices Sotomayor and Kagan have yet to hear a case regarding students’ Fourth Amendment rights at school or school policing more generally. However, they have advocated for strong Fourth Amendment rights broadly.135 135.E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy).Show More Justice Sotomayor has particularly emphasized the need for robust Fourth Amendment rights for those disproportionately targeted by police due to their race.136 136.Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).Show More

Support from Justices Thomas, Barrett, and Kavanaugh for the proposed student-conscious Fourth Amendment reasonableness standard is less certain. Justice Thomas would likely prefer courts heavily defer to school choices regarding campus policing policies. He has explained children have reduced rights at schools—viewing schools as a “substitute[] of parents” with broad authority “to discipline speech and conduct.”137 137.Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted).Show More Although Justices Barrett and Kavanaugh have not expressed views regarding students’ Fourth Amendment rights at school or school policing more generally, they may support deference to school police, having exhibited limited views of the Fourth Amendment’s scope.138 138.E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43.Show More

Conclusion

Race-based criminalization in schools must end. Otherwise, American schools can never move beyond a dual system of education, which provides minority students with unequal educational opportunities, setting them up for a lifetime of inequality. Ensuring all students’ Fourth Amendment rights in school policing contexts would work towards dismantling the school-to-prison pipeline’s racially based pattern of pushing students from classrooms and into the criminal justice system. Judicial precedent supports that (1) students deserve procedural protections at school, (2) children experience police interactions differently than adults, and (3) both students and state governments have important interests in the provision of an education. Building on such precedent, it is time to hold schools and law enforcement agents accountable, end racialized school discipline, and ensure students receive full Fourth Amendment rights so they can more readily access the educational opportunities their states have guaranteed them.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). I would like to thank Professor Kimberly J. Robinson, Professor Josh Bowers, Scott Harman-Heath, Professor Josh Gupta-Kagan, Professor Jason P. Nance, Elizabeth Adler, Barrett Anderson, Julia Eger, Margaret Booz, Meredith Kilburn, and Jack Hoover for their helpful comments. Additionally, I wish to thank Dean Dayna Matthew and Professor Katie Ryan for valuable conversations that inspired me to write this piece, as well as Professor A.E. Dick Howard for encouraging my research related to constitutional doctrines in school settings.
  2. Ryan Faircloth, Minneapolis Public Schools Terminates Contract with Police Department over George Floyd’s Death, StarTribune (June 2, 2020, 9:38 PM), https://www.startribune.co​m/mpls-school-board-ends-contract-with-police-for-school-resource-officers/570967942/ [ht​tps://perma.cc/9C7G-TWD2].
  3. E.g., Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous?, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2020/06/12/us/schools-police-resource-officers.html [https://perma.cc/54U4-V4LJ].
  4. E.g., Alex Altman, Why the Killing of George Floyd Sparked an American Uprising, Time (June 4, 2020), https://time.com/magazine/us/5847952/june-15th-2020-vol-195-no-22-u-s/ [https://perma.cc/RT4B-FLJ9].
  5. E.g., Kim Bellware, Chicago School Board Votes to Keep $33M Police Contract – But Student Activists Say the Fight Isn’t Over, Wash. Post. (June 25, 2020), https://www.washi​ngtonpost.com/education/2020/06/25/chicago-school-police/ [https://perma.cc/BT7V-85C3]; infra Part I.
  6. E.g., Josh Gupta-Kagan, Reevaluating School Searches Following School-to-Prison Pipeline Reforms, 87 Fordham L. Rev. 2013, 2043–45 (2019).
  7. E.g., Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 204–05 (2016).
  8. E.g., New Jersey v. T.L.O., 469 U.S. 325, 340–43 (1985) (plurality opinion); see also Josh Bowers, Probable Cause, Constitutional Reasonableness, and the Unrecognized Point of a “Pointless Indignity,” 66 Stan. L. Rev. 987, 1006 (2014) (pointing out that, in some contexts, an all-things-considered “general reasonableness” approach may allow for consideration of interests beyond just quantitative measures of legal guilt such as “probable cause”).
  9. Infra Section II.A.
  10. Infra Sections II.A, III.A.
  11. E.g., T.L.O., 469 U.S. at 337 (plurality opinion).
  12. Infra Section II.B.
  13. E.g., Goss v. Lopez, 419 U.S. 565, 576 (1975). But cf. Bowers, supra note 7 (arguing that consideration of probable cause should supplement, rather than replace, other relevant considerations).
  14. This Essay considers only federal law. Additionally, officer qualified immunity in a school context is outside this Essay’s scope.
  15. E.g., Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 905–17 (2018); Jason E. Yearout, Individualized School Searches and the Fourth Amendment: What’s a School District to Do?, 10 Wm. & Mary Bill Rts. J. 489, 522–23 (2002).
  16. E.g., Goss, 419 U.S. at 576. The student-conscious model considers only K–12 students, as only K–12 education is guaranteed in all states. Emily Parker, 50 State Review: Constitutional Obligations for Public Education, Educ. Comm’n of the States 1–2 (Mar. 2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-educati​on-1.pdf [https://perma.cc/CUR7-4HJR].
  17. Infra Part II; Jason P. Nance, Implicit Racial Bias and Students’ Fourth Amendment Rights, 94 Ind. L.J. 47, 93–94 (2019).
  18. Cf. Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129 (2017) (arguing for Fourth Amendment doctrines that would do more to accommodate the particular perspectives of specific individuals and groups).
  19. Jack Denton, When Schools Increase Police Presence, Minority Students Are Harmed Disproportionately, Pacific Standard (Feb. 15, 2019), https://psmag.com/education/after-parkland-schools-upped-police-presence-has-it-made-students-safer [https://perma.cc/2LU3-BMGJ].
  20. For example, following Parkland’s shooting, Florida legislated schools must always have a “safe-school officer” present. Fla. Stat. § 1006.12 (2019).
  21. See Nat’l Inst. of Just., School Safety: By the Numbers (Nov. 2017), https://www.ncjrs.go​v/pdffiles1/nij/251173.pdf [https://perma.cc/A6V7-25LZ].
  22. Id.; Ashley Fetters, The Developing Norms for Reopening Schools After Shootings, Atlantic (Aug. 27, 2018), https://www.theatlantic.com/education/archive/2018/08/how-schools-decide​-when-to-reopen-after-a-shooting/568666/ [https://perma.cc/A9QG-SC4Q].
  23. Nat’l Inst. of Just., supra note 20; Philip J. Cook, Denise C. Gottfredson, and Chongmin Na, School Crime Control and Prevention, 39 Crime & Just. 313, 316 (2010).
  24. Kenneth Alonzo Anderson, Does More Policing Make Middle Schools Safer?, Brookings Inst. (Nov. 8, 2018), https://www.brookings.edu/blog/brown-center-chalkboard/2018/11/08/d​oes-more-policing-make-middle-schools-safer/ [https://perma.cc/8Y97-49S4].
  25. Compare Anya Kamenetz, Why There’s a Push to Get Police Out of Schools, NPR (June 23, 2020, 7:00 AM), https://www.npr.org/2020/06/23/881608999/why-theres-a-push-to-get-police-out-of-schools [https://perma.cc/2JQP-SN4B] (describing an argument SROs stop shootings before they happen), with Eli Saslow, ‘It Was my Job, and I Didn’t Find Him’: Stoneman Douglas Resource Officer Remains Haunted by Massacre, Wash. Post (June 4, 2018), https://www.washi​ngtonpost.com/national/it-was-my-job-and-i-didnt-find-him-stone​man-douglas-resource-offi​cer-remains-haunted-by-massacre/2018/06/04/796f1c16-679d-11​e8-9e38-24e693b38637_sto​ry.html [https://perma.cc/H3Z9-82P9] (describing an account by an SRO who failed to stop the Marjory Stoneman shooting).
  26. Compare, e.g., Emily G. Owens, Testing the School-to-Prison Pipeline, 36 J. Pol’y Analysis & Mgmt. 11, 34 (2016) (describing how SRO presence increases school safety), with Aaron Kupchik, Research on the Impact of School Policing, ACLU Penn. 1 n.3 (Aug. 2020), https://www.endzerotolerance.org/impact-of-school-policing [https://perma.cc/X3VF-7HGZ] (listing studies indicating SROs either do not impact student crime or SRO presence is associated with increased student misconduct). Inconclusive data may be due to SROs filling a solely law enforcement role in some schools while serving in mentorship capacities in others. See Kupchik, supra, at 1.
  27. See, e.g., Emily M. Homer & Benjamin W. Fisher, Police in Schools and Student Arrest Rates Across the United States: Examining Differences by Race, Ethnicity, and Gender, 19 J. Sch. Violence 192, 192 (2020).
  28. Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. U. L. Rev. 919, 933 (2016) [hereinafter Nance, Students, Police].
  29. Id.
  30. E.g., Deanna N. Devlin & Denise C. Gottfredson, The Roles of Police Officers in Schools: Effects on the Recording and Reporting of Crime, 16 Youth Violence & Juv. Just. 208, 217 (2016).
  31. Matthew T. Theriot & Matthew J. Cuellar, School Resource Officers and Students’ Rights, 19 Contemp. Just. Rev. 363, 369 (2016).
  32. Id.
  33. Id. at 369–70.
  34. Richard G. Dudley, Jr., Childhood Trauma and Its Effects: Implications for Police, New Perspectives Policing, July 2015, at 1, 5 (trauma can “rewire [children’s] brains,” impacting their future encounters with law enforcement).
  35. Nancy Heitzeg, The School-to-Prison Pipeline: Education, Discipline, and Racialized Double Standards 102 (2016).
  36. See, e.g., Erin R. Archerd, Restoring Justice in Schools, 85 U. Cin. L. Rev. 761, 794–95 (2017) (explaining restorative justice as an example of a discipline practice that helps students work towards improved behavior); Nance, Students, Police, supra note 27, at 981.
  37. Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, 48 Ariz. St. L.J. 313, 356–57, 360 (2016).
  38. See, e.g., Aaron Kupchik, Things Are Tough All Over: Race, Ethnicity, Class and School Discipline, 11 Punishment & Soc’y 291, 292 (2009).
  39. See Charles Ogletree, Robert J. Smith, and Johanna Wald, Coloring Punishment: Implicit Social Cognition and Criminal Justice, in Implicit Racial Bias Across the Law 54 (Justin D. Levinson & Robert J. Smith eds., 2012).
  40. U.S. Comm’n on C.R., Beyond Suspensions: Examining School Discipline Policies and Connections to the School-to-Prison Pipeline for Students of Color with Disabilities 161 (July 2019), https://www.usccr.gov/pubs/2019/07-23-Beyond-Suspensions.pdf [https://perma.cc/H​7W3-E8LH] [hereinafter Beyond Suspensions].
  41. Archerd, supra note 35, at 773. For comparison, in fall 2018, 15% of public-school students were Black and 27% were Hispanic. Racial/Ethnic Enrollment in Public Schools, Nat’l Ctr. for Educ. Stat. (May 2021), https://nces.ed.gov/programs/coe/indicator_cge.asp [https://perma.cc/9FV2-CQGD].
  42. Beyond Suspensions, supra note 39, at 42, 45 n.244, 53.
  43. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (“Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society.”); Goss v. Lopez, 419 U.S. 565, 576 (1975) (“Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses . . . .”); Plyler v. Doe, 457 U.S. 202, 214 (1982) (holding everyone within a state’s boundaries has educational rights).
  44. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
  45. See sources cited supra note 42; see also Eric Merriam, Obergefell and the Dignitary Harm of Identity-Based Military Service and Exclusion, 27 UCLA Women’s L.J. 41, 67 (2020) (“[A]n equal protection right to basic education . . . requires that when the government does provide it, it be provided equally.”).
  46. E.g., New Jersey v. T.L.O., 469 U.S. 325, 339–40 (1985) (plurality opinion).
  47. E.g., id. at 353 (Blackmun, J., concurring); id. at 357 (Brennan, J., concurring).
  48. The disparate rate at which SROs discipline students of color hinders the government from achieving its interest in creating integrated school environments. E.g., Brown, 347 U.S. at 493 (“In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”).
  49. Since 2001, only regulatory agencies and the Department of Justice (“DOJ”) can enforce disparate impact claims under Title VI. Alexander v. Sandoval, 532 U.S. 275, 284–85 (2001) (private litigants cannot bring disparate impact suits); 34 C.F.R. § 100.8(a) (2021) (allowing regulatory agencies and the DOJ to enforce disparate impact claims). The DOJ can engage in disparate impact suits, and the Department of Education (“ED”) can investigate complaints and review schools’ compliance with the ED’s Office for Civil Rights’s (“OCR”) guidelines, consequently revoking federal funds pursuant to Title VI as necessary. Office for Civil Rights, U.S. Dep’t of Educ., Case Processing Manual (CPM) 23 (2020), https://www2.ed.gov/ab​out/offices/list/ocr/docs/ocrcpm.pdf [https://perma.cc/K4YP-HFU2]; 42 U.S.C. § 2000d-1.
  50. E.g., Catherine E. Lhamon & Jocelyn Samuels, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 4, 7 (Jan. 8, 2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.pdf [https://perma.cc/9SPS-H26B] (rescinded by Kenneth L. Marcus & Eric S. Dreiband, U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter (Dec. 21, 2018), https://ww​w2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf [https://perma.cc/MXX7-V2B​3]); Office for Civil Rights, U.S. Dep’t of Educ., Questions & Answers on Racial Discrimination and School Discipline 2 n.6 (2018), https://www2.ed.gov/about/offices/lis​t/ocr/docs/qa-title-vi-201812.pdf [https://perma.cc/9Z8A-QV35].
  51. Supra note 49 and surrounding text.
  52. T.L.O., 469 U.S. at 340 (plurality opinion).
  53. Id. at 340–41.
  54. Id. at 337.
  55. Id. at 337–38.
  56. Id. at 339.
  57. Id. at 340.
  58. Id. at 340–41; see generally Silas J. Wasserstrom, The Court’s Turn Toward a General Reasonableness Interpretation of the Fourth Amendment, 27 Am. Crim. L. Rev. 119 (1989) (describing “general reasonableness” as understood by this Essay).
  59. T.L.O., 469 U.S. at 341–42 (citation omitted).
  60. Id. at 342 (citation omitted). This theoretically provides more protection than a probable cause, or quantum of guilt, standard in conventional crime-solving contexts. See, e.g., Bowers, supra note 7, at 1021–22. However, as this Essay further explores, this standard has been treated as “amorphous.” See, e.g., T.L.O., 469 U.S. at 367 (Brennan, J., concurring) (describing the new standard as “ambiguous,” potentially “leav[ing] teachers and administrators uncertain as to their authority and . . . encourag[ing] excessive fact-based litigation.”); Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 848–49 (2011) (presenting T.L.O.’s reasonableness standard as “amorphous”).
  61. 469 U.S. at 340 (plurality opinion).
  62. Id. at 351–53 (Blackmun, J., concurring); id. at 349–50 (Powell, J., concurring). Justice Powell emphasized that the flexible Fourth Amendment standard described by the T.L.O. plurality stemmed from a close relationship between teachers and students, which differs from students’ relationship with “[l]aw enforcement officers[, who] function as adversaries of criminal suspects.” Id. at 349 (Powell, J., concurring); see also id. at 351 (Blackmun, J., concurring) (emphasizing searches, such as the school official-led search at hand, could evade Fourth Amendment warrant and probable cause requirements, “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable”).
  63. Id. at 341 n.7; see also Gupta-Kagan, supra note 5, at 2022 (“T.L.O.’s rationale set up an important question: Are searches by school resources officers, or searches by school officials at the behest of or in conjunction with SROs, governed by T.L.O.?”).
  64. See, e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 833 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 658 (1995); Gupta-Kagan, supra note 5, at 2023.
  65. Earls, 536 U.S. at 837–38; Acton, 515 U.S. at 663–65.
  66. Earls, 536 U.S. at 833; Acton, 515 U.S. at 658.
  67. Earls, 536 U.S. at 833–34.
  68. Goss v. Lopez, 419 U.S. 565, 576 (1975) (“But, ‘education is perhaps the most important function of state and local governments,’ and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child.”) (quoting Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954)).
  69. Ferguson v. City of Charleston, 532 U.S. 67, 83 n.20 (2001); see also Developments in the Law — Policing, 128 Harv. L. Rev. 1706, 1762 (2015) (“[T]he identity of who uses the result of a search does bear on the seriousness of the privacy intrusion.”).
  70. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).
  71. E.g., Ferguson, 532 U.S. at 83 n.20, 84, 88 (Kennedy, J., concurring); see also Josh Gupta-Kagan, Beyond Law Enforcement: Camreta v. Greene, Child Protection Investigations, and the Need to Reform the Fourth Amendment Special Needs Doctrine, 87 Tulane L. Rev. 353, 399–422 (2012) [hereinafter Gupta-Kagan, Beyond Law Enforcement] (theorizing how to improve the special needs test to best serve children, based on empirical evidence).
  72. A.M. v. Holmes, 830 F.3d 1123, 1157–61 (10th Cir. 2016) (applying T.L.O. analysis to an SRO as well as a school principal and assistant principal); Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1304–06 (11th Cir. 2006) (applying T.L.O. when analyzing an unlawful seizure claim filed against a law enforcement deputy at an elementary school); Shade v. City of Farmington, 309 F.3d 1054, 1060–62 (8th Cir. 2002) (applying T.L.O. to determine the legality of a search law enforcement officers conducted away from school grounds in conjunction with a school teacher and administrator); Gupta-Kagan, supra note 5, at 2024–25 (explaining a majority of state courts have applied T.L.O. to SROs).
  73. E.g., Bostic, 458 F.3d at 1304; C.B. v. City of Sonora, 769 F.3d 1005, 1023–28 (invoking T.L.O. without using its two-part analysis for the seizure at issue); Ziegler v. Martin Cnty. Sch. Dist., 831 F.3d 1309, 1322–24 (11th Cir. 2016); Wofford v. Evans, 390 F.3d 318, 326–27 (4th Cir. 2004); Doe ex rel. Doe v. Hawaii Dep’t. of Educ., 334 F.3d 906, 909–10 (9th Cir. 2003).
  74. Neague v. Cynkar, 258 F.3d 504, 505–07 (6th Cir. 2001).
  75. Infra Section III.A; see also Bowers, supra note 17, at 198 (arguing that in Fourth Amendment cases judges should do more to accommodate the perspective of the layperson).
  76. Graham v. Connor, 490 U.S. 386, 396 (1989); supra note 71 (listing relevant cases). Deadly force is outside the scope of this Essay, as it is uncommon in school policing. For a discussion of deadly force, see, e.g., Scott A. Harman-Heath, Renaming Deadly Force, 106 Cornell L. Rev. 1689, 1690–713 (2021).
  77. E.g., Hoskins v. Cumberland Cnty. Bd. of Educ., No. 2:13-cv-15, 2014 WL 7238621, at *7 (M.D. Tenn. Dec. 17, 2014) (“[T]he Court must first consider the factors uniquely relevant to this case as required by Graham, namely the very young age of T.H. and the fact that this incident took place in a school setting.”); E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 179 (4th Cir. 2018) (“Here, we believe it prudent to consider also the suspect’s age and the school context.”); Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (“His age and size are certainly factors in the totality-of-the-circumstances reasonableness calculation. . . . However, these factors alone do not render force used against him unreasonable per se.”).
  78. Graham, 490 U.S. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); United States v. Place, 462 U.S. 696, 703 (1983)); Scott v. Harris, 550 U.S. 372, 383 (2007); see also Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1127, 1136–38 (2008) (discussing how the Scott Court undermined Graham and Garner, therein “reduc[ing] the Fourth Amendment regulation of reasonable force to its vaguest form . . . .”).
  79. Graham, 490 U.S. at 397 (citations omitted).
  80. See, e.g., Charles Ogletree et al., supra note 38, at 54 (discussing that implicit biases often affect decisions made by school administrators and school resource officers).
  81. Graham, 490 U.S. at 396 (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
  82. Id. But see Harmon, supra note 77, at 1127, 1130 (explaining the Graham reasonableness standard allows juries to decide use of force cases based on “their intuitions”). The Eighth Circuit has noted sister circuits’ lack of clarity regarding whether to apply the T.L.O. or Graham reasonableness standard when considering a student seizure involving law enforcement officers on school grounds. K.W.P. v. Kan. City Pub. Schs., 931 F.3d 813, 822 (8th Cir. 2019).
  83. Hawker v. Sandy City Corp., 591 F. App’x 669, 675 (10th Cir. 2014).
  84. Id.
  85. Id.; see also C.B. v. Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (describing the child’s small size as factoring against the reasonableness of his seizure).
  86. Hawker, 591 F. App’x at 675.
  87. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370 (2009) (considering age when determining reasonableness in a Fourth Amendment context).
  88. Gray ex rel. Alexander v. Bostic, 458 F.3d 1295, 1300–07 (11th Cir. 2006).
  89. Id. at 1306.
  90. E.W. ex rel. T.W. v. Dolgos, 884 F.3d 172, 180–82, 188 (4th Cir. 2018).
  91. C.B. v. City of Sonora, 769 F.3d 1005, 1023–24, 1029–30 (9th Cir. 2014).
  92. New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985) (plurality opinion); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656 (1995).
  93. T.L.O., 469 U.S. at 341–42; Acton, 515 U.S. at 656.
  94. E.g., In re Gault, 387 U.S. 1, 21–27 (1967); Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 374–79 (2009); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975).
  95. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).
  96. T.L.O., 469 U.S. at 342; Redding, 557 U.S at 375.
  97. Redding, 557 U.S. at 368, 379.
  98. These factors build on those Professor Alexis Karteron has previously discussed when describing a school-specific reasonableness standard for students. Karteron, supra note 14, at 870 (“[R]easonableness requires consideration of objective factors especially relevant to the school context and unique vulnerabilities of youth including: the seriousness of the alleged infraction or crime; the likelihood that the student has committed an infraction or crime; the age of the student; the size and stature of the student; the likelihood of inflicting harm or trauma, especially in light of known disabilities or vulnerabilities; and the necessity of the enforcement action.”).
  99. T.L.O., 469 U.S. at 338–40; Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); Karteron, supra note 14, at 907 (“In T.L.O. and subsequent cases, all decided in the context of a search conducted by a school official, the Court identified privacy as the only student interest at stake.”).
  100. T.L.O., 469 U.S. at 341 (emphasis added); see Bowers, supra note 7, at 1105–07 (arguing that special-needs searches may sometimes be more protective by accommodating considerations that the Court deems irrelevant for crime-solving searches).
  101. E.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (First Amendment Establishment Clause context); Tinker v. Des Moines Indep. Sch. Dist. 393 U.S. 503, 508 (1969) (First Amendment Speech Clause context); J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011) (Fifth Amendment context); Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982) (Eighth Amendment context); Brown v. Bd. of Educ., 347 U.S. 483, 494–95 (1954) (Fourteenth Amendment Equal Protection Clause context); Goss v. Lopez, 419 U.S. 565, 576, 581 (1975) (Fourteenth Amendment Due Process Clause context).
  102. Other scholars have agreed these broader interests must be encompassed. E.g., Karteron, supra note 14, at 905; Gupta-Kagan, Beyond Law Enforcement, supra note 70, at 411.
  103. Supra Section II.B.
  104. Supra notes 45–47 and accompanying text.
  105. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 375 (2009). For a depiction of the Court taking different views of “dignity” in Fourth Amendment consideration, see Bowers, supra note 7, at 1010–18.
  106. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (plurality opinion).
  107. Supra note 77 and surrounding text.
  108. Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).
  109. Supra note 42 and surrounding text.
  110. Goss v. Lopez, 419 U.S. 565, 582 (1975).
  111. Supra Part I.
  112. Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 375 (2009).
  113. Infra note 116 and surrounding text.
  114. E.g., J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011); Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.”).
  115. J.D.B., 564 U.S. at 275.
  116. See, e.g., Karteron, supra note 14, at 880.
  117. Id.; Hawker v. Sandy City Corp., 591 Fed. App’x. 669, 671 (10th Cir. 2014).
  118. Karteron, supra note 14, at 913.
  119. E.g., Graham v. Connor, 490 U.S. 386, 395–97 (1989).
  120. See, e.g., Hawker, 591 Fed. App’x. at 671.
  121. Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 903–04 (2015).
  122. Id.
  123. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 368–369, 379 (2009).
  124. J.D.B. v. North Carolina, 564 U.S. 261, 280–81 (2011).
  125. See, e.g., Bowers, supra note 7, at 1016–17; Bowers, supra note 17, at 144.
  126. J.D.B., 564 U.S. at 293 (Alito, J., dissenting).
  127. Id. at 294 (Alito, J., dissenting).
  128. J.D.B., 564 U.S. at 283 (Alito, J., dissenting).
  129. Policy-and-practice arguments are outside the scope of this Essay, but it is worth noting that, though some states require no school-specific training for SROs, e.g., Ala. Code § 16-1-44.1 (2019); Ky. Rev. Stat. Ann. §158.441 (West 2020), many states already train SROs to work with students. E.g., Wash. Rev. Code § 28A.320.124(1)(a) (2021); Cal. Educ. Code § 38000(e) (West 2020); Conn. Gen. Stat. § 17a-22bb (2013); N.M. Stat. Ann. § 29-7-14(B) (2020); Va. Code Ann. § 9.1-102 (2020); see also Ga. Code. Ann. § 35-8-27(b) (training is available but not required). Training SROs in a student-conscious reasonableness model would thus be a low-cost initiative, building on existing training models.
  130. J.D.B., 564 U.S. at 293 (Alito, J., dissenting).
  131. Supra note 100; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 379 (2009) (Fourth Amendment context).
  132. Safford, 557 U.S. at 368, 379 (2009); see also Howes v. Fields, 565 U.S. 499 (2012) (Justices Alito, Scalia, and Thomas abandoning a one-size-fits-all approach and accepting a reasonable inmate’s perspective on custody).
  133. Supra notes 42–47 and surrounding text; supra Section II.A.
  134. A.M. v. Holmes, 830 F.3d 1123, 1169 (10th Cir. 2016) (Gorsuch, J., dissenting) (“If a seventh grader starts trading fake burps for laughs in gym class, . . . . Maybe today you call a police officer. And maybe today the officer decides that . . . an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option . . . . Respectfully, I remain unpersuaded.”).
  135. Safford, 557 U.S. at 368, 375, 379.
  136. E.g., Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (maintaining individuals have a reasonable expectation to digital privacy).
  137. Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting).
  138. Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038, 2059 (2021). (Thomas, J., dissenting); see also Redding, 557 U.S. at 384 (Thomas, J., dissenting) (“[S]chool officials retain broad authority to protect students and preserve ‘order and a proper educational environment’ under the Fourth Amendment.”) (citation omitted).
  139. E.g., Torry v. City of Chicago, 932 F.3d 579, 588–89 (7th Cir. 2019) (Barrett, J.) (then-Judge Barrett, finding officers were entitled to immunity in a lawsuit alleging they illegally stopped and harassed three Black men in a car); United States v. Jones, 625 F.3d 766, 770–71 (D.C. Cir. 2010) (Kavanaugh, J., dissenting) (arguing a defendant had no reasonable expectation of privacy while driving a car on a public thoroughfare, so police could install a tracking GPS in his car); United States v. Askew, 529 F.3d 1119, 1165 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (arguing that officers were within their rights to unzip and open a defendant’s jacket after an original frisk yielded nothing). But see Caniglia v. Strom, 141 S. Ct. 1599, 1602–05 (2021) (Kavanaugh, J., concurring) (supporting a broad view of the Fourth Amendment by agreeing the “community caretaking” exception to the Fourth Amendment’s warrant requirement does not extend to the home). Still, as they have sought to protect students’ First Amendment rights away from school campuses, they could possess broader views on children’s constitutional protections than currently known. See Mahanoy, 141 S. Ct. at 2042–43.

Standing and Student Loan Cancellation

As the public policy debate over broad student loan cancellation continues, many have questioned whether the Executive Branch has the legal authority to waive the federal government’s claim to up to $1.6 trillion in debt. Some have argued that loan nullification would prompt a years-long battle in the courts. However, commentators and policymakers should not assume that federal courts would have anything at all to say about the legality of federal debt cancellation, as it is likely that no party would have standing to challenge the executive action. This Article considers taxpayers, former borrowers, Congress, state governments, and loan servicers, determining that none of these parties could assert both the Article III standing and the prudential standing required to sustain a suit against the Executive for student loan forgiveness. Even if student loan cancellation never occurs, this “standing dead zone” has broader implications for debt cancellation powers held by department heads across the federal government as well as the wisdom of current federal standing doctrine.

Introduction

There is an ongoing public policy debate over whether the Executive Branch, acting through the Secretary of Education, can and should eliminate most student debt owed to the federal government using powers enumerated in the Higher Education Act of 1965 (“HEA”).1.See Pub. L. No. 89-329, 79 Stat. 1219 (codified as amended in scattered sections of 20 U.S.C.) and subsequent amendments.Show More Publicly owned student debt has tripled in just a little over a decade, increasing from $516 billion in 2007 to $1.6 trillion in 2021.2.U.S. Dep’t of Educ., Spreadsheet, Federal Student Aid Portfolio Summary, https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls, [http​s://perma.cc/DAX8-57FQ]. The number of individuals carrying student debt increased from 28 million people to 43 million during the same timespan. The average public loan borrower now carries $37,100 in debt, double the amount carried by the average borrower in 2007. Total student debt stands at $1.75 trillion, and there is approximately $138 billion in privately-owned debt. Board of Governors of the Federal Reserve System, Consumer Credit – G.19, https://www.federalreserve.gov/releases/g19/hist/cc_hist_memo_levels.html [https://perma.c​c/RFZ6-D3SQ].Show More Policymakers and commentators have flooded op-ed sections with arguments for and against implementation of the policy. Some advocates posit that eliminating debt will boost the economy3.Hillary Hoffower & Madison Hoff, The Case for Cancelling Student Debt Isn’t Political — It’s Practical. Here Are the Benefits of Erasing $1.6 Trillion, No Strings Attached, Bus. Insider (Feb. 17, 2021, 10:26 AM), https://www.businessinsider.com/economic-benefits-of-student-debt-forgiveness-2020-12 [https://perma.cc/W366-5BDF].Show More or work to narrow the racial wealth gap.4.Naomi Zewde & Darrick Hamilton, Opinion, What Canceling Student Debt Would Do for the Racial Wealth Gap, N.Y. Times (Feb. 1, 2021), https://www.nytimes.com/2021/02/01/opi​nion/student-debt-cancellation-biden.html [https://perma.cc/TRA4-BZ2X].Show More Others point out that prospects for repayment are dim regardless and that up to $500 billion in loans may never be recovered anyway.5.Josh Mitchell, Is the U.S. Student Loan Program Facing a $500 Billion Hole? One Banker Thinks So., Wall St. J. (Apr. 29, 2021), https://www.wsj.com/articles/is-the-u-s-student-loan-program-in-a-deep-hole-one-banker-thinks-so-11619707091 [https://perma.cc/DA7U-57U​E].Show More Detractors argue that debt forgiveness would disproportionately benefit high-earning households6.Adam Looney, Opinion, Biden Shouldn’t Listen to Schumer and Warren on Student Loans, Wash. Post (Nov. 17, 2020), https://www.washingtonpost.com/opinions/biden-shouldnt-listen-to-schumer-and-warren-on-student-loans/2020/11/17/b5839042-2915-11eb-9​b14-ad872157ebc9_story.html [https://perma.cc/9BMT-82BP].Show More and that broader economic benefits are unlikely.7.Editorial Board, Opinion, The Great Student Loan Scam, Wall St. J. (Feb. 9, 2021), https://www.wsj.com/articles/the-great-student-loan-scam-11612915210 [https://perma.cc/8​VJD-W4V9].Show More

Many prominent politicians continue to push for executive action to cancel student loans. Among these voices are Senate Majority Leader Chuck Schumer and Senator Elizabeth Warren.8.Press Release, Sen. Elizabeth Warren et al., Warren, Schumer, Pressley, Colleagues: President Biden Can and Should Use Executive Action to Cancel up to $50,000 in Federal Student Loan Debt Immediately (Feb. 4, 2021) [hereinafter Warren et al., Press Release], https://www.warren.senate.gov/newsroom/press-releases/warren-schumer-pressley-colleagu​es-president-biden-can-and-should-use-executive-action-to-cancel-up-to-50000-in-federal-st​udent-loan-debt-immediately [https://perma.cc/YC2Z-JQP9].Show More More than sixty members of Congress signed a letter supporting up to $50,000 in debt relief per borrower,9.Id.Show More and calls for action have persisted. Schumer, for example, has repeatedly asked President Biden to provide student debt relief through executive action.10 10.See, e.g., Chuck Schumer (@SenSchumer), Twitter (Dec. 6, 2021, 5:41 PM), https://twitte​r.com/SenSchumer/status/1467987566750322694 [https://perma.cc/6285-Q2XT].Show More Others have called for cancellation of all $1.6 trillion in student debt.11 11.See, e.g., Bernie Sanders (@SenSanders), Twitter (Aug. 7, 2020, 12:31 PM), https://twitte​r.com/SenSanders/status/1299021647392002049 [https://perma.cc/Y4RF-7CWB]; Ayanna Pressley (@AyannaPressley), Twitter (Jan. 19, 2021, 1:50 PM), https://twitter.com/AyannaPr​essley/status/1351602827504750595 [https://perma.cc/RW3Q-GDTD].Show More During his campaign, President Biden advocated $10,000 in debt relief per borrower facilitated through congressional action,12 12.Sydney Ember, Biden Was Asked About Canceling Student Loan Debt. Progressives Saw an Opening., N.Y. Times (Nov. 16, 2020), https://www.nytimes.com/2020/11/16/us/biden-was-asked-about-canceling-student-loan-debt-progressives-saw-an-opening.html [https://per​ma.cc/DN3Y-VTQE].Show More later remarking that he is prepared to write off the debt through executive powers.13 13.Lauren Egan, ‘I Will Not Make That Happen’: Biden Declines Democrats’ Call to Cancel $50K in Student Debt, NBC (Feb. 17, 2021), https://www.nbcnews.com/politics/joe-biden/i-will-not-make-happen-biden-declines-democrats-call-cancel-n1258069 [https://perma.cc/Q6​X9-HDY2].Show More A recently released, redacted memo indicates that the administration may be more seriously considering unilateral executive action.14 14.In October, the Biden administration released the redacted version of a memorandum evaluating the president’s authority to unilaterally cancel student loans. Andrew Marantz, What Biden Can’t Do on Student Debt—And What He Won’t Do, New Yorker (Oct. 29, 2021), https://www.newyorker.com/news/news-desk/what-biden-cant-do-on-student-debt-an​d-what-he-wont-do [https://perma.cc/V65Q-MKWK].Show More Given that student loan balances continue to increase and will not decrease significantly without loan forgiveness, this political discussion is unlikely to disappear any time soon.

The debate has led some to question whether debt relief through executive action alone would be legal. A majority of the relief would come through 20 U.S.C § 1082(a), which affords the Secretary of Education the power to “enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand, however acquired, including any equity or any right of redemption” related to certain types of student loans.15 15.Warren et al., Press Release, supra note 8. Section 1082(a) codifies § 432(a) of the HEA, as originally enacted in 1965.Show More Although advocates introduced the idea of forgiveness using § 1082(a) in 2015,16 16.National Consumer Law Center, Comment Submitted by the National Consumer Law Center to the Consumer Financial Protection Bureau Re: Request for Information Regarding Student Loan Servicing (July 13, 2015), https://www.nclc.org/images/pdf/special_pr​ojects/sl/NCLC_Comments_Student_Loan_Servicing_Jul2015.pdf [https://perma.cc/2Q9K-H9K4].Show More only one piece in the legal literature focuses on the proposal’s merits.17 17.Luke Herrine, The Law and Political Economy of a Student Debt Jubilee, 68 Buff. L. Rev. 281, 342–43 (2020) (arguing that the Department of Education’s inherent enforcement discretion should settle the issue in favor of legality); see also Dalié Jiménez & Jonathan D. Glater, Student Debt Is a Civil Rights Issue: The Case for Debt Relief and Higher Education Reform, 55 Harv. C.R.-C.L. L. Rev. 131, 142 (2020) (discussing the policy benefits of debt relief).Show More Some commentators have argued that § 1082(a) provides the Secretary of Education with the power to cancel the majority of student loans,18 18.Letter from Eileen Connor, Legal Dir., Harvard L. Sch. Legal Servs. Ctr., to Elizabeth Warren, U.S. Sen. from Massachusetts (Jan. 13, 2020), https://static.politico.com/4c/c4/dfadd​bb94fd684ccfa99e34bc080/student-debt-letter-2.pdf.pdf [https://perma.cc/WU39-ATP5].Show More while others contend that this action would exceed the Executive’s powers under the HEA.19 19.Michael Stratford, Pelosi Rebuffs Schumer’s Push to Get Biden to Cancel Student Debt, Politico (July 29, 2021, 10:32 AM), https://www.politico.com/news/2021/07/29/pelosi-schume-student-debt-501521 [https://perma.cc/A6US-5AP6].Show More Numerous commentators have further warned that any loan cancellation would likely be held up in the judiciary amid legal challenges and injunctions.20 20.For example, a Harvard law professor and student argued that there is “a strong possibility that the initiative might be tied up in court for many years.” Howell Jackson & Colin Mark, Opinion, Executive Authority to Forgive Student Loans Is Not So Simple, Regul. Rev. (Apr. 19, 2021), https://www.theregreview.org/2021/04/19/jackson-mark-executive-authority-forgive-student-loans-not-simple/ [https://perma.cc/ZG4V-FJ66]; see also Jordan Weissman, What Biden Should Do About Student Debt, Slate (Nov. 19, 2020, 10:40 AM) (arguing that loan forgiveness through unilateral executive action may not hold up to legal challenges), https://slate.com/business/2020/11/biden-student-debt-forgiveness.html [https://perma.cc/6X​4G-EHQD]; Annie Nova, Student Loan Forgiveness Is Still Up in the Air. What to Do in the Meantime, CNBC (Sep. 24, 2021, 10:58 AM EDT) (explaining that experts believe cancelling student loans via executive action may be held up in the courts), https://www.cn​bc.com/2021/09/24/what-to-do-while-waiting-for-news-on-student-loan-forgiveness-.html [h​ttps://perma.cc/T62C-WKEB].Show More

However, commentators, Congress, and the Executive should be aware of the strong possibility that the judicial branch will have nothing at all to say about the legality of student debt relief using the HEA, given that it is unlikely any party would have standing to challenge the government’s action if the government makes the decision through an adjudication rather than negotiated rulemaking. Current standing doctrine under both Article III and the Administrative Procedure Act (“APA”) places narrow limits on who exactly may stake a claim against particular interpretations of federal law. These requirements create a null set of litigants with standing to challenge cancellation of federally owned debt. In this “standing dead zone,” which authors have recognized in similar contexts,21 21.Mila Sohoni, On Dollars and Deference: Agencies, Spending, and Economic Rights, 66 Duke L.J. 1677, 1706–08 (2017) (discussing standing and Executive-driven funding schemes); Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1110–11 (2021) (noting difficulties obtaining standing to challenge Appropriations Clause violations).Show More constraints on the Executive Branch will either be political or result from the government’s own interpretation of the law. Thus, while litigation and injunctions might occur, litigants may never receive clarification on the scope of § 1082(a).

This issue extends beyond student debt obligations—many department heads and other officials retain the apparent power to broadly compromise and settle debts. Similar compromise and settlement provisions allow the Secretary of the Interior the power to waive financial development loans made to Indians,22 22.25 U.S.C. § 1496(d).Show More the Secretary for Veterans Affairs to waive certain loans made to veterans,23 23.38 U.S.C. §§ 3720(a)(4); 5302(b).Show More the Secretary of Agriculture to release loans made to farmers,24 24.7 U.S.C. § 1981(b)(4).Show More and the Administrator of the Small Business Association to compromise any debt at all held by the agency.25 25.15 U.S.C. § 634(b)(2).Show More These actions may also escape judicial review. Many other provisions raise similar questions because they provide a financial benefit to one party while not directly harming another.26 26.The Treasury Secretary may also unilaterally waive customs claims. 19 U.S.C. § 1617 (2018). Fee waivers might provide another example of this standing dead zone. See, e.g., 15 U.S.C. § 636(a)(33)(E) (waiving guarantee fees for veterans applying for small business loans).Show More

Part I of this article provides a brief background on contemporary standing doctrine, the likely cause of action under the Administrative Procedure Act, and other executive student debt cancellation actions. Part II then considers all classes of potential litigants who might try to challenge student loan cancellation, including taxpayers, former borrowers, Congress, state governments, and loan servicers. It concludes that, under current standing doctrine, none of these entities will meet requirements for standing in federal court. Because most of these parties clearly fail at the stage of Article III standing, the analysis only proceeds to the APA’s requirements when considering loan servicers. As a result, commentators should not assume that the merits of student loan cancellation can be litigated in federal court.

I. Background

A. Standing

To bring a suit in federal court under contemporary Supreme Court guidance, a plaintiff must have standing. Justice Scalia’s opinion in Lujan v. Defenders of Wildlife outlines the Court’s current perspective on standing, viewing the limitation as protecting the separation of powers, defining which disputes may be “appropriately resolved through the judicial process,” and setting out three requirements as the “irreducible constitutional minimum of standing.”27 27.Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).Show More These include (1) injury in fact that is actual, concrete, and particularized; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that exercise of judicial power will redress the injury.28 28.Id. at 560–61.Show More The Court furthermore differentiated between cases in which government regulation targets the plaintiff and cases where the plaintiff complains about “unlawful regulation (or lack of regulation) of someone else,” in which case “much more is needed” for standing to exist.29 29.Id. at 561–62.Show More The Court has regularly reaffirmed this formulation of its standing requirements.30 30.See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).Show More

The requirement that the plaintiff directly suffer injury means that mere objection to government conduct, or injury commonly held by all members of the public, is not enough to create standing.31 31.Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 208, 220 (1974) (determining that plaintiff did not have standing to allege that members of Congress were violating the Incompatibility Clause by holding commissions in the military while serving in office).Show More In Ex parte Lévitt, for example, a lawyer challenged the constitutionality of Justice Hugo Black’s 1937 appointment to the Supreme Court.32 32.Ex parte Lévitt, 302 U.S. 633, 633 (1937) (per curiam).Show More The Court determined that the lawyer lacked standing to bring the claim, explaining that “he must show that he has sustained . . . a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”33 33.Id. at 634.Show More The Court has continued to view standing in this way.34 34.Lujan, 504 U.S. at 575–76; Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018).Show More

As Justice Blackmun noted in dissent, Lujan shifted power from Congress to the Executive Branch.35 35.Lujan, 504 U.S. at 602 (Blackmun, J., dissenting).Show More Where Congress passes a statute constraining the range of options available to the Executive, courts do not err by intervening to enforce those constraints at Congress’s request, Blackmun asserted.36 36.Id. at 604.Show More Yet the Court has stated that it is acceptable even if no party has standing to challenge the legality of a particular government action.37 37.See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974) (“The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013).Show More According to the Court, separation of powers requires that grievances beyond the reach of the courts be reserved for the political branches.38 38.Id. at 408; see also Lujan, 504 U.S. at 576–77.Show More

The Court’s restrictive standing doctrine was not inevitable. The very notion of “standing” arose in the 1930s, with Lujan’s tripartite requirements coming into focus during the 1970s.39 39.Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 168, 179 (1992).Show More The strength of this limitation on access to the courts has no basis in the Framers’ original intent and appears to be the Supreme Court’s own creation.40 40.Id. at 173. Alternative standards for granting standing include whenever Congress creates a cause of action or when the plaintiff is the party most interested in the outcome of the case. Richard M. Re, Relative Standing, 102 Geo. L.J. 1191, 1197 (2014).Show More From a realist perspective, it is quite possible that the Supreme Court could choose any case—including the issue presented here—to reformulate its standing jurisprudence. Yet, as discussed below in Part III, each of the potential plaintiffs who could challenge student loan forgiveness lies far outside the bounds of current standing doctrine.

B. The APA Cause of Action

The Administrative Procedure Act provides the most likely cause of action a potential challenger would invoke to oppose student debt cancellation.41 41.Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).Show More Other statutes that might be relevant, such as the Antideficiency Act or the Federal Credit Reform Act, impose additional restrictions on the Executive but do not provide relevant causes of action.42 42.Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 877 (1982); Federal Credit Reform Act, Pub. L. No. 93-344, 104 Stat. 1388-610 (1990) (codified as amended at 2 U.S.C. §§ 661–661f).Show More The Department of Education’s student loan cancellation would constitute agency action under the APA, meaning that any party who has constitutional standing, is adversely affected by the agency action within the meaning of the relevant statute, and meets the APA’s additional requirements43 43.To be subject to review, agency action must be final and there must be no alternative remedy. 5 U.S.C. § 704. Judicial review may also be precluded or committed to agency discretion by law. 5 U.S.C. § 701(a).Show More may bring a suit to challenge the government’s activity.

The APA provides a complicated blueprint for the operation of most government authorities within the Executive Branch. The statute resulted from painstaking negotiations during Franklin Delano Roosevelt’s presidency over the scope of the federal government,44 44.See generally Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219, 219–26 (1986) (describing negotiations lasting from 1933 until 1946).Show More and it represents a New Deal compromise under which Congress may give the Executive Branch greater autonomy to make choices but imposes judicial oversight on the resulting decisions.45 45.Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1248 (1982).Show More The APA therefore defines how the Executive Branch must make rules,46 46.5 U.S.C. § 553.Show More adjudicate decisions,47 47.5 U.S.C. §§ 554–55.Show More and hold hearings.48 48.5 U.S.C. §§ 556–57.Show More To facilitate judicial review of these executive functions, the APA provides that any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”49 49.5 U.S.C. § 702.Show More Aggrieved litigants may use this cause of action to argue in federal court that an Executive Branch agency has neglected to take action that it must take, or that an agency exceeded statutory powers, violated the Constitution, or erred in one of several other ways.50 50.5 U.S.C. § 706.Show More For example, New York used the APA to successfully challenge the Trump administration’s addition of a question regarding citizenship on the 2020 decennial census, pointing to defects in the government’s reasoning.51 51.Dep’t of Com. v. New York, 139 S. Ct. 2551, 2562, 2576 (2019).Show More

In this case, a litigant would use the APA to sue the Department of Education, arguing that student loan cancellation exceeded the Secretary of Education’s powers under the HEA. To do so, a plaintiff would need to show the Article III standing described in Part II.a., including injury, causation, and redressability. However, the plaintiff would also need to satisfy the specific cause of action set out in the APA, namely that the injury falls “within the meaning of a relevant statute.”52 52.5 U.S.C. § 702 (2018).Show More This requirement—called the “zone of interests test” and sometimes described as a subset of “prudential standing”—is further explored in Part III.e.

C. Statutory Bases for Loan Modification

Advocates of student loan forgiveness hope that the Executive will use 20 U.S.C. § 1082(a) to cancel federal student loans without further involvement from Congress. The Trump and Biden administrations have used statutory mechanisms to broadly modify student loan obligations on at least three occasions since early 2020. None of these actions, however, relied on § 1082(a).

The modification affecting the largest number of Americans came through deferment of student loans during the pandemic, meaning that borrowers were not required to make loan payments and interest did not accrue. The CARES Act provided authority for deferment from March 27, 2020 until September 30, 2020,53 53.CARES Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020).Show More and the Trump54 54.Press Release, Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic (Aug. 8, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [https://pe​rma.cc/VTU6-2339].Show More and then Biden55 55.Memorandum from President Donald J. Trump to the Secretary of Education, Pausing Federal Student Loan Payments (Jan. 20, 2021), https://trumpwhitehouse.archives.gov/presid​ential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [htt​ps://perma.cc/L24P-XP8Z].Show More administrations relied on a provision of the HEA allowing relief when a borrower experiences “economic hardship” to continue the deferment.56 56.20 U.S.C. § 1087e(f)(2)(D).Show More In August 2021, the Biden administration used a separate statutory provision under the HEA to discharge the loans of 323,000 people who had been permanently disabled.57 57.20 U.S.C. § 1087; Total and Permanent Disability Discharge of Loans Under Title IV of the Higher Education Act, 86 Fed. Reg. 46972, 46972 (Aug. 23, 2021). Press Release, U.S. Dep’t of Educ., Over 323,000 Federal Student Loan Borrowers to Receive $5.8 Billion in Automatic Total and Permanent Disability Discharges (Aug. 19, 2021), https://www.ed.gov/n​ews/press-releases/over-323000-federal-student-loan-borrowers-receive-58-billion-automati​c-total-and-permanent-disability-discharges [https://perma.cc/H2V2-VPL5].Show More Then in early October, the administration reformulated the Public Service Loan Forgiveness program, basing its action on a provision of the 2003 Heroes Act allowing the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs . . . as the Secretary deems necessary in connection with a war or other military operation or national emergency.”58 58.HEROES Act of 2003, Pub. L. No. 108-76, § 2, 117 Stat. 904 (2003) (codified at 10 U.S.C. §§ 1098aa–1098ee); Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces Transformational Changes to the Public Service Loan Forgiveness Program, Will Put Over 550,000 Public Service Workers Closer to Loan Forgiveness (Oct. 6, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-transformation​al-changes-public-service-loan-forgiveness-program-will-put-over-550000-public-service-w​orkers-closer-loan-forgiveness [https://perma.cc/Y77B-QGPZ]. The Department of Education did not publish its action in the Federal Register but confirmed the basis of the action to the author.Show More As of February 2022, the Biden administration had provided $16 billion in loan cancellation to 680,000 borrowers.59 59.Press Release, U.S. Dep’t of Educ., Education Department Approves $415 Million in Borrower Defense Claims Including for Former DeVry University Students (Feb. 16, 2022), https://www.ed.gov/news/press-releases/education-department-approves-415-million-borrow​er-defense-claims-including-former-devry-university-students [https://perma.cc/G5TW-8FG​Q].Show More

Broad relief under § 1082(a) remains untested as of early 2022. Supporters of student loan cancellation argue that the statute provides the Secretary of Education unreviewable discretion to cancel loans up to $1,000,000 per borrower, and that loans exceeding that amount only require review by the Attorney General.60 60.Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 3.Show More Supporters also argue that although § 1082(a) is in the part of the HEA associated with the Federal Family Education Loan Program (“FFELP”), the provision applies to Direct Loans as well, likely because that part of the HEA in fact regulates many other programs. In addition, they point to § 1087hh(1) as covering Perkins loans, which are owned by third parties. Some argue instead that the government would need to acquire FFELP and Perkins loans to gain the ability to cancel them.61 61.Herrine, supra note 17, at 395–97.Show More However, inquiring into the specific statutory mechanisms for federal debt cancellation is beyond the scope of this Article, which questions only whether a plaintiff would be able to challenge the government’s interpretation of the statutory scheme.

II. The Potential Litigants

This Article contemplates five classes of potential litigants, including taxpayers, former borrowers, members of Congress, state governments, and loan servicers. The analysis proceeds from the broadest class to the class with the fewest members. A different body of Supreme Court cases applies to each of these groups, and each line of jurisprudence leaves little room for these entities to claim both Article III and prudential standing.

A. Taxpayers

If the Executive cancels all or part of federally owned student loans, some members of the public may seek to challenge the action, arguing that their tax dollars funded unlawful activity. While those plaintiffs would put forward colorable policy objections to loan cancellation, a federal court is unlikely to hear their legal claims. The Supreme Court has severely restricted standing based on taxpayer status, with only one sui generis exception.

The Supreme Court initially rejected taxpayer standing in Frothingham v. Mellon, in which a citizen-taxpayer brought suit alleging that Congress exceeded its powers in enacting the Maternity Act of 1921.62 62.262 U.S. 447, 478–80 (1923).Show More The Court determined that it lacked jurisdiction to consider the merits of the case because administration of a federal statute would spread a tax burden among a “vast number of taxpayers,” whose financial interests would be difficult to discern and in constant flux.63 63.Id. at 487.Show More Yet in the 1960s, the Court created a single, narrow exception in Flast v. Cohen.64 64.392 U.S. 83, 104–06 (1968).Show More Citizens have standing to challenge the federal government as taxpayers only when alleging the unconstitutionality of congressional appropriations under Article I, Section 8 of the Constitution, which covers the congressional taxing and spending power. Furthermore, this argument is possibly limited to when such congressional appropriations are used to violate the Establishment Clause of the First Amendment.65 65.Flast v. Cohen, 392 U.S. 83, 102–04 (1968).Show More However, this pathway to taxpayer standing is unique, and the Court has rejected taxpayer standing in every other context to come before it.66 66.Joshua G. Urquhart, Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines, 81 Fordham L. Rev. 1263, 1271 (2012).Show More The Court reaffirmed its approach in a recent case, Hein v. Freedom From Religion Foundation, Inc., in which a taxpayer challenged the George W. Bush administration’s creation of the Faith-Based and Community Initiatives program, arguing that it violated the Establishment Clause.67 67.Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 592 (2007).Show More The Court reasserted that status as a taxpayer is not enough to create standing and that Flast did not apply because the Executive’s spending came from general appropriations for the Executive Office of the President, not unconstitutional legislation.68 68.Id. at 593, 605.Show More Taxpayer standing is therefore available to challenge some congressional actions but not to oppose Executive Branch activity.

This line of taxpayer standing jurisprudence would foreclose a taxpayer lawsuit seeking to enjoin executive cancellation of federally owned debt. Congress provides appropriations for student loans as an entitlement program, meaning that the legislature does not set a specific amount to loan from the Treasury.69 69.Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 2. See also 2 U.S.C. § 661c (referencing student loans as exempt from general appropriations requirements).Show More While Congress nonetheless appropriates funding for the Executive to disburse loans, and the Executive would essentially be waiving the government’s claim that borrowers must return the funds to the Treasury, this action would approximate the facts of Hein, where taxpayers alleged that the Executive disbursed funds illegally. Furthermore, even if the Court were to diverge from its previous jurisprudence on taxpayer standing, it would likely limit standing to constitutional violations similar to Flast.70 70.See Hein, 551 U.S. at 633, (Scalia, J., concurring) (2007).Show More Instead of entertaining a taxpayer lawsuit challenging loan cancellation, the Court would determine that the issue is more appropriate for the political branches.

B. Former Borrowers

Student loan forgiveness would certainly leave borrowers who fully paid off their loans feeling aggrieved, and some may oppose executive action asserting that it is unfair to cancel others’ loans while providing no benefit to those who previously paid off their balances. Again, while these individuals may have political arguments against student loan forgiveness, a court is unlikely to hear the merits of their complaints. As noted above, former borrowers would need to show some form of concrete injury, and their complaints would reduce to the fact that the government required them to pay back a loan they were legally required to repay, compared to others it later decided did not have to repay.71 71.Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).Show More Former borrowers can point to no injury, only a benefit that others subsequently experienced. And as Lujan made clear, it is difficult to claim standing based on “unlawful regulation (or lack of regulation) of someone else.”72 72.Id. at 562.Show More In addition, even if loan cancellation could be conceived of as an injury to former borrowers, an injunction from the judiciary would do nothing to remedy that injury. Former borrowers still had to pay off their own loans whether or not loan forgiveness takes place under § 1082(a).

More broadly, allowing former borrowers standing to challenge cancellation of outstanding federal loans would create precedent providing standing whenever the government confers a benefit that did not apply at a previous point in time. Former borrowers would need to argue that the injury can be cured through some amount of compensation for loans paid off prior to the Executive’s cancellation. But if a court considered this to be injury capable of supporting standing, then plaintiffs would have standing to challenge any policy that creates a new benefit—such as relief for first-time homebuyers, expansion of veterans’ healthcare coverage, or reduced grazing fees. As noted above, however, conferral of a benefit or imposition of a restriction on others does not support standing, particularly outside the context of the Establishment Clause,73 73.See Note, Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test, 123 Harv. L. Rev. 1999 (2010) (discussing distribution of government benefits in ways that favor certain religions).Show More meaning that former borrowers would be unable to sustain a suit against loan forgiveness.

C. Congress

Some members or an entire house of Congress may also attempt to bring suit against the Executive to stop the federal government from abrogating federally owned loans, arguing that the Secretary of Education exceeded the powers it is granted in the HEA or engaged in unauthorized spending. However, the rationales under which a legislature may claim particularized injury are limited, including instances where votes are essentially nullified,74 74.Coleman v. Miller, 307 U.S. 433, 438 (1939).Show More where a legislature intervenes to defend the constitutionality of legislation,75 75.Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 93940 (1983).Show More and where the legislature sues as an institution to defend its powers.76 76.Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 (2015).Show More Most of these contexts implicate the operation of the legislature itself or the vindication of its own explicit powers. None of these cases has afforded a legislature standing to contest the Executive Branch’s interpretation of a federal statute, and a federal court would likely determine that Congress’s interest in a particular interpretation of a federal statute is no greater than that of the general population.

This hesitancy relies in large part on the separation of powers, a thread that has only become more pronounced in the Court’s standing jurisprudence.77 77.See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992); Raines v. Byrd, 521 U.S. 811, 819–20 (1997).Show More Lower courts within the U.S. Court of Appeals for the D.C. Circuit have also raised separation of powers issues when rejecting congressional challenges to executive branch action pursuant to statutory authority, describing the grievances as generalized and incapable of supporting standing.78 78.See, e.g., Chenoweth v. Clinton, 181 F.3d 112, 117 (D.C. Cir. 1999) (rejecting a challenge to creation of a program through executive order under a duly enacted federal statute); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015) (determining that the House could sue based on constitutional claims, such as violations of the Appropriations Clause, but not for claims about the implementation of a statute).Show More This indicates that precedent in the jurisdiction where Congress would file suit already weighs heavily against success.

In addition, Congress could not assert that the Executive intruded on legislative power by spending federal funds without congressional appropriations.79 79.Burwell, 130 F. Supp. 3d at 58.Show More For example, in a recent case, the U.S. House of Representatives sued the Trump administration alleging that diverting spending to fund the border wall violated the Appropriations Clause.80 80.U.S. House of Representatives v. Mnuchin, 976 F.3d 1, 4 (D.C. Cir. 2020) (vacated as moot).Show More The D.C. Circuit determined that the House had no standing to assert injury based on a statutory violation,81 81.Id. at 15.Show More although it could claim injury to its institutional powers as one of the two “keys” to the treasury.82 82.Id. at 13.Show More This pathway to standing is inapposite here, however, as Congress duly appropriated funds for student loans,83 83.See text accompanying note 69.Show More and the Executive is responsible for the funding’s disbursement. This means that any claim of standing due to institutional injury from compromising Congress’s control of the federal purse would fail.

In total, this means that Congress would lack standing to bring a lawsuit against the Executive Branch claiming that the government exceeded the powers Congress defined in § 1082(a). The claim does not relate to the legislature’s own powers or operations. Rather, Congress would be claiming an injury common to members of the public.

D. State Governments

Some state governments may also be interested in suing the federal government to halt broad federal loan cancellation, arguing that the Executive exceeded its powers and in doing so increased the federal debt.84 84.When Texas Governor Greg Abbott was the state’s Attorney General, he reportedly described his job: “I go into the office, I sue Barack Obama, and then I go home.” Rachel Weiner, Five things to know about Greg Abbott, Wash. Post (July 15, 2013), https://www.washingtonpost.com/news/the-fix/wp/2013/07/15/five-things-to-know-about-gr​eg-abbott/ [https://perma.cc/JQ4U-5F9R].Show More State lawsuits against the federal government have become increasingly politicized and high-profile.85 85.See, e.g., Texas v. United States, 809 F.3d 134, 146, 188 (5th Cir. 2015) (challenging the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program); Katherine Mims Crocker, An Organizational Account of State Standing, 94 Notre Dame L. Rev. 2057, 2058 (2019) [hereinafter Crocker, Organizational Account] (discussing the ensuing consternation within legal academia).Show More Yet state governments must also meet the constitutional requirements for standing. Pathways to state standing can be divided into three main categories, including proprietary interests, sovereign interests, and quasi-sovereign interests.86 86.Crocker, Organizational Account, supra note 85, at 2061–67. See also Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 Va. L. Rev. 2051, 2056–68 (2011) (describing the evolution of jurisprudence regarding states’ sovereign interests); Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 410–11 (1995) (describing states as plaintiffs).Show More Federal loan forgiveness does not come close to offending any of these state interests, meaning that a state would lack standing to challenge cancellation.

States are unlikely to successfully argue that debt abrogation harms their common law proprietary interests, such as property or contract claims. Courts primarily review these cases under traditional Article III standing analysis, and until relatively recently these lawsuits represented the only claims state governments could bring against federal officials.87 87.Woolhandler & Collins, supra note 86, at 392–93.Show More In Hawaii’s recent case challenging the Trump administration over its ‘Muslim ban,’ for instance, the Ninth Circuit determined that the state had standing to sue because its university would lose tuition income, students, and faculty.88 88.Hawaii v. Trump, 859 F.3d 741, 764–65 (9th Cir. 2017). See also Texas v. United States, 809 F.3d 134, 152–53 (5th Cir. 2015) (finding standing to sue the Obama administration for DAPA); Massachusetts v. HHS, 923 F.3d 209, 222–23 (1st Cir. 2019) (finding standing because the Trump administration’s attempt to limit access to contraceptives under the Affordable Care Act would increase use of state funded contraceptive services).Show More Yet there are no similar rationales for proprietary injury as a result of loan forgiveness. In fact, citizens who send less money to the federal treasury are more likely to spend that money locally on housing, education, and services that benefit state economies and tax revenues. This means that state treasuries would benefit from loan forgiveness rather than incur additional costs, frustrating claims of proprietary injury.

States will similarly be unable to assert that debt cancellation offends sovereign interests or quasi-sovereign interests. Sovereign interests typically implicate a state’s effort to protect its capacity to exercise executive, legislative, and judicial power.89 89.Woolhandler & Collins, supra note 86, at 410–11.Show More States have no plausible argument that federal debt cancellation would interfere with their own sovereign powers, given that neither the HEA nor loan distributions implicate state governments. When vindicating quasi-sovereign interests, in contrast, states cite the need to protect their citizens or citizens’ benefits from the federal system.90 90.Crocker, Organizational Account, supra note 85, at 2064–65; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 608 (1982).Show More The primary issue with the rationale for quasi-sovereign standing is that it flows from injuries—actual or imminent—to citizens themselves.91 91.Missouri v. Illinois, 180 U.S. 208, 241 (1901) (holding that standing may be asserted when the “health and comfort” of a state’s citizens are in jeopardy).Show More Yet federal debt cancellation does not injure a state’s citizens, as established above. This means that there is no quasi-sovereign interest for a state to assert.

Barring a drastic expansion in the bases for state standing, state governments will be unable to sustain a lawsuit against broad federal loan forgiveness because states cannot point to an injury. Student loan cancellation would not harm a state’s proprietary interests because federal debt forgiveness does not impose financial burdens on states. Cancellation also does not challenge a state’s sovereignty and does not injure citizens such that a state may bring an action to protect its residents.

E. Loan Servicers

Student loan servicers represent the final class of litigants who might challenge broad federal loan forgiveness, although they may lack both Article III standing and prudential standing under the APA.92 92.It is worth noting that if the decision to abrogate student loan debt is committed to agency discretion by law, then the APA does not in fact apply, meaning that the cause of action remains unavailable to all, including loan servicers. 5 U.S.C. § 701; Herrine, supra note 17, at 368–95.Show More Servicers comprise nine federal contractors who receive a monthly fee from the Department of Education for each borrower the company services.93 93.U.S. Dep’t of Educ., Who’s My Student Loan Servicer?, https://studentaid.gov/manage-loans/repayment/servicers [https://perma.cc/8D6Z-XFPQ].Show More The organizations—some for-profit and others non-profit—currently receive a base fee of $1.05 per month while a student is in school and $2.85 per month while a loan is in repayment.94 94.U.S. Dep’t of Educ. & Great Lakes Educ. Loan Servs., Amendment of Solicitation/Modification of Contract, at 4 (effective Sept. 1, 2014), https://studentaid.gov/site​s/default/files/ED-FSA-09-D-0012_MOD_0080_GreatLakes.pdf [https://perma.cc/ZR96-ZZ​9N].Show More Eliminating millions of student loans would dramatically decrease the amount of money loan servicers receive under these contracts.

However, to acquire Article III standing, loan servicers would need to show that this decrease in payments under the federal contracts represents a concrete injury to a legally protected interest. The sufficiency of this injury would depend on a federal court’s approach to the nature of the harm. There is little clear guidance on what constitutes a “legally protected interest,” and the Supreme Court has not clarified the term’s boundaries.95 95.Cottrell v. Alcon Lab’ys, 874 F.3d 154, 163 (3d Cir. 2017).Show More On the one hand, loan servicers’ contracts are variable in nature, meaning that there may be no legally protected interest in retaining any specific number of loans under the contract. In addition, even if the servicers could assert a contract injury, the remedy would likely amount to monetary damages rather than an injunction under most states’ theories of contract law. On the other hand, the Court appears to have taken a broad view of what sorts of concrete injuries qualify for standing, and loan servicers would be able to attach a dollar amount to claims of decreased income as a result of loan cancellation. It is quite possible—though still uncertain—that this financial injury would be sufficient to provide loan servicers Article III standing.

Even if the servicers had Article III standing, however, they would lack prudential standing. As noted in Part II.B., the APA introduces additional constraints beyond those imposed by generalized Article III standing requirements. To sustain a lawsuit under the APA, a litigant’s interest must be “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”96 96.Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). See also Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708 (2019) (describing the zone of interests test).Show More This inquiry into the “zone of interests” is separate from the Article III “case or controversy” test,97 97.Data Processing, 397 U.S. at 153.Show More and those who fall outside of the zone of interests are said to lack prudential standing.98 98.The Supreme Court has noted that “prudential standing” really reflects statutory interpretation and “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is therefore markedly different from constitutional Article III standing and rests on the scope of the statute, not constitutional restrictions.Show More Courts typically consider the zone of interests test to be a wide aperture, likely given that most litigants file suit based on statutes that clearly pertain to them.99 99.Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (noting that “[t]he test is not meant to be especially demanding”).Show More Nonetheless, the test does have teeth. For example, the Court determined that the American Postal Workers Union was not within the zone of interests Congress contemplated when passing certain statutes creating a Postal Service monopoly on carriage of letters.100 100.Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 530 (1991).Show More The Union therefore could not challenge the Postal Service’s suspension of the monopoly for certain pieces of mail because it stood outside the statute’s zone of interests.101 101.Id. at 519–20.Show More The monopoly statute exists, the Court stated, to ensure the Postal Service’s stability, not to ensure employment for postal workers.102 102.Id. at 528.Show More In another case, the Court concluded that a federal agency was not a “person adversely affected or aggrieved” within the meaning of a statute delineating the process for a worker’s compensation claim, indicating that the agency head lacked prudential standing to seek review of an independent board decision denying a claimant’s compensation.103 103.Dir., Off. of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 130 (1995).Show More In contrast, other cases have determined that companies do often lie within the zone of interests protected by statutes limiting the activity of their competitors.104 104.See, e.g., Nat’l Credit Union Admin. v. 1st Nat. Bank & Tr. Co., 522 U.S. 479, 488 (1998); Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).Show More In one such case, the Supreme Court looked to the Lanham Act’s statement of purpose to determine that a chip manufacturer was within the zone of interests the statute protects because “lost sales and damage to [the plaintiff’s] business reputation . . . are injuries to precisely the sorts of commercial interests the Act protects.”105 105.Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 137 (2014)Show More

This means that any plaintiff challenging cancellation of federal loans needs to not only show concrete injury for constitutional standing as articulated in Lujan, but also that they arguably lie within the range of interests the HEA protects.106 106.Professor Nelson argues that the Court’s Data Processing decision should be read such that action lying arguably within the “zone of interests” is a necessary but not sufficient condition for judicial review. Nelson, supra note 96, at 710–11. Yet even under the more expansive view of prudential standing, where being within the arguable zone of interests ensures judicial review, plaintiffs’ claims will fail.Show More In the context of federal debt cancellation, these requirements would be difficult to meet if the Executive acts through an adjudication rather than formal rulemaking.

First, given that the debt settlement provisions were present in the original version of the HEA, the Act’s statement of purpose can guide the inquiry. The legislation describes the act as a measure “[t]o strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education.”107 107.Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219, 1219 (codified as amended in scattered sections of 20 U.S.C.).Show More The Act’s purpose does not include the Department of Education’s relationship with its contractors, which is instead primarily regulated by the complicated set of provisions in Title 41 of the U.S. Code.108 108.See 20 U.S.C. § 1018a (providing for Department of Education contracting in compliance with federal procurement laws).Show More

Second, the Supreme Court has clarified that the zone of interests test revolves primarily around the specific statutory provision rather than a broader statutory scheme.109 109.Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 335–37 (2004).Show More Section 1082(a)(6) itself regulates the relationship between the Department of Education and specific claimants and debtors, not all parties with business before the agency. Debt compromise generally takes place to serve the best interests of the debtor and the creditor, where third party interests provide the parties little incentive to settle.110 110.See IRS, An Offer in Compromise May Help Some Taxpayers Settle Their Tax Bill (May 3, 2021), https://www.irs.gov/newsroom/an-offer-in-compromise-may-help-some-taxpayers-settle-their-tax-bill [https://perma.cc/Z4UC-SVFU] (“The goal is a compromise that suits the best interest of both the taxpayer and the agency.”).Show More As demonstrated by the postal workers’ case, it is not enough that a policy change has some de facto effect on a third party’s economic interests.111 111.Air Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 530 (1991).Show More

Third, Congress requires that the Department of Education consult a wide range of interests—including those of student loan servicers—when engaging in the process of “negotiated rulemaking.”112 112.20 U.S.C. § 1098a.Show More However, no similar requirement applies to loan cancellation, which would likely comprise an adjudication and not a rulemaking. This shows that if Congress intended the Department of Education to consider servicers’ interests when deciding whether to release claims against borrowers, it knew how to do so. Finally, it is quite possible that loan servicers’ interests are antithetical to the purposes of the statute,113 113.See Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (determining that in-house employees’ interests were antithetical to those of the contractors, whose interests the statute in question sought to further).Show More given that any compromise or settlement of student debt would necessarily result in reduced revenue under Department of Education contracts. The statute does not contain any requirement to consider effects on the debtor, let alone third parties relying on the debtor’s existence. Even without the weight of precedent against them, servicers would battle uphill to argue that § 1082(a)(6) protects their interests in any meaningful way.

Similar difficulties have led courts to hold that contractors and third parties who, like loan servicers, have a financial interest in the mechanism of a statutory regime’s execution fall outside of its zone of interests. For instance, in Lujan, the Supreme Court noted that an agency’s failure to hold “on the record” hearings as required by a provision of the APA

would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency’s proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings and not those of the reporters, that company would not be ‘adversely affected within the meaning’ of the statute.114 114.Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).Show More

In another example, a Bureau of Prisons (“BOP”) contractor challenged a regulatory change that decreased the number of prisoners housed in its facilities under a federal contract and caused the contractor to lose revenue.115 115.Dismas Charities, Inc. v. DOJ, 287 F. Supp. 2d 741, 742–43 (W.D. Ky. 2003).Show More The court determined that Congress passed the relevant statute to protect the managerial interests of the BOP and the health interests of federal prisoners, concluding that the statute concerned “administration of the prison system,” not indirect effects on federal contractors.116 116.Id. at 746.Show More The contractor therefore lacked prudential standing to challenge the BOP decision.117 117.Id. at 748.Show More

Courts have reached comparable decisions when third parties employed by the agency experience financial loss as a result of agency action pursuant to statutory authority unrelated to the plaintiffs. For instance, civilian employees at a military base could not challenge the government’s decision to outsource their jobs to a private contractor because they did not fall within the zone of interests of any relevant federal statute regulating procurement.118 118.Courtney v. Smith, 297 F.3d 455, 458 (6th Cir. 2002).Show More The court reasoned that none of the statutes were designed to protect federal employees’ jobs.119 119.Id. at 466. See also Am. Fed’n of Gov’t Emps., Loc. 2119 v. Cohen, 171 F.3d 460, 471 (7th Cir. 1999) (“[T]he interests of federal employment, and the goal of private procurement are inconsistent.”); Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (reasoning that the interests of federal employees are antithetical to those of federal contractors, and therefore inconsistent with the interests of a federal statute allowing for contracting).Show More Other courts have reached similar conclusions regarding third parties with a financial stake in a regulation.120 120.See, e.g., Immigr. & Naturalization Serv. v. Legalization Assistance Project of the Los Angeles Cnty. Fed’n of Lab., 510 U.S. 1301, 1305 (1993) (deciding that legal services organizations were not within the zone of interests an immigration statute sought to protect).Show More So, while a contractor might have standing to challenge issues arising from the government’s contracting process,121 121.See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 669 (1993) (finding standing to challenge ordinance according preferential treatment to minority-owned businesses).Show More a contractor would not have the prudential standing necessary to contest the interpretation of a law regulating a third party that would incidentally affect the company’s government business.

This conclusion makes sense from a policy perspective as well. In fiscal year 2020, the U.S. government spent more than $655 billion on contracts spread across all government agencies.122 122.U.S. Gov’t Accountability Off., A Snapshot of Government-Wide Contracting for FY 2020 (infographic) (June 22, 2021), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2020-infographic [https://perma.cc/KA6Y-HUJS].Show More If contractors were able to challenge the legality of government policy every time an agency made a decision that affected contractors’ finances, then the effectiveness of the modern federal government would suffer immensely as federal contractors filed lawsuits to protect their fiefdoms from regulatory change. This would result in ossification of federal government structures and negate the main benefit that federal contracting provides—flexibility. Congress may have had just these sorts of lawsuits in mind when limiting the APA cause of action to those aggrieved “within the meaning of the relevant statute.”

Student loan servicers represent the most likely plaintiffs in part because broad student loan cancellation would strike at their pocketbooks—fewer borrowers means reduced income from contracts with the federal government. This concern may or may not afford the loan servicers constitutional standing under Article III. However, the servicers would fail to establish the prudential standing necessary to bring an action under the APA if the claim arises from § 1082(a). If a loan services contractor brought a claim based on violation of a statute governing federal contracts, the issue would be different. Yet loan servicers would be unable to challenge broad forgiveness of student loans under the HEA.

Conclusion

Regardless of political positions on the wisdom of general student loan forgiveness, the fact that the Executive could well modify $1.6 trillion in obligations to the United States government without judicial review presents policy concerns. Should federal standing doctrine block taxpayers and their elected representatives—both state and federal—from questioning the government’s dramatic increase of the national debt? If so, perhaps Congress should revisit federal statutes that allow for action without effective judicial review. Yet it is hard to escape the impression that in cases like these, courts seek to evade a duty to oversee the scope of executive power.

Debate over the legality and sagacity of student loan forgiveness is unlikely to abate unless the Executive Branch decides to cancel debt or Congress legislates to solve the issue. Student debt will also continue to rise and the relevant statutory provisions will likely remain intact, only increasing pressure on the Executive to act. While many debate the legality of the action, all should remain cognizant that there may well exist no party with standing and a cause of action to oppose debt cancellation in federal court, meaning that the judiciary will have nothing to say about the issue. This means that any push or pull will come from either political pressure or the Executive’s own interpretation of its powers, not a judicial declaration of law.

  1. See Pub. L. No. 89-329, 79 Stat. 1219 (codified as amended in scattered sections of 20 U.S.C.) and subsequent amendments.
  2. U.S. Dep’t of Educ., Spreadsheet, Federal Student Aid Portfolio Summary, https://studentaid.gov/sites/default/files/fsawg/datacenter/library/PortfolioSummary.xls, [http​s://perma.cc/DAX8-57FQ]. The number of individuals carrying student debt increased from 28 million people to 43 million during the same timespan. The average public loan borrower now carries $37,100 in debt, double the amount carried by the average borrower in 2007. Total student debt stands at $1.75 trillion, and there is approximately $138 billion in privately-owned debt. Board of Governors of the Federal Reserve System, Consumer Credit – G.19, https://www.federalreserve.gov/releases/g19/hist/cc_hist_memo_levels.html [https://perma.c​c/RFZ6-D3SQ].
  3. Hillary Hoffower & Madison Hoff, The Case for Cancelling Student Debt Isn’t Political — It’s Practical. Here Are the Benefits of Erasing $1.6 Trillion, No Strings Attached, Bus. Insider (Feb. 17, 2021, 10:26 AM), https://www.businessinsider.com/economic-benefits-of-student-debt-forgiveness-2020-12 [https://perma.cc/W366-5BDF].
  4. Naomi Zewde & Darrick Hamilton, Opinion, What Canceling Student Debt Would Do for the Racial Wealth Gap, N.Y. Times (Feb. 1, 2021), https://www.nytimes.com/2021/02/01/opi​nion/student-debt-cancellation-biden.html [https://perma.cc/TRA4-BZ2X].
  5. Josh Mitchell, Is the U.S. Student Loan Program Facing a $500 Billion Hole? One Banker Thinks So., Wall St. J. (Apr. 29, 2021), https://www.wsj.com/articles/is-the-u-s-student-loan-program-in-a-deep-hole-one-banker-thinks-so-11619707091 [https://perma.cc/DA7U-57U​E].
  6. Adam Looney, Opinion, Biden Shouldn’t Listen to Schumer and Warren on Student Loans, Wash. Post (Nov. 17, 2020), https://www.washingtonpost.com/opinions/biden-shouldnt-listen-to-schumer-and-warren-on-student-loans/2020/11/17/b5839042-2915-11eb-9​b14-ad872157ebc9_story.html [https://perma.cc/9BMT-82BP].
  7. Editorial Board, Opinion, The Great Student Loan Scam, Wall St. J. (Feb. 9, 2021), https://www.wsj.com/articles/the-great-student-loan-scam-11612915210 [https://perma.cc/8​VJD-W4V9].
  8. Press Release, Sen. Elizabeth Warren et al., Warren, Schumer, Pressley, Colleagues: President Biden Can and Should Use Executive Action to Cancel up to $50,000 in Federal Student Loan Debt Immediately (Feb. 4, 2021) [hereinafter Warren et al., Press Release], https://www.warren.senate.gov/newsroom/press-releases/warren-schumer-pressley-colleagu​es-president-biden-can-and-should-use-executive-action-to-cancel-up-to-50000-in-federal-st​udent-loan-debt-immediately [https://perma.cc/YC2Z-JQP9].
  9. Id.
  10. See, e.g., Chuck Schumer (@SenSchumer), Twitter (Dec. 6, 2021, 5:41 PM), https://twitte​r.com/SenSchumer/status/1467987566750322694 [https://perma.cc/6285-Q2XT].
  11. See, e.g., Bernie Sanders (@SenSanders), Twitter (Aug. 7, 2020, 12:31 PM), https://twitte​r.com/SenSanders/status/1299021647392002049 [https://perma.cc/Y4RF-7CWB]; Ayanna Pressley (@AyannaPressley), Twitter (Jan. 19, 2021, 1:50 PM), https://twitter.com/AyannaPr​essley/status/1351602827504750595 [https://perma.cc/RW3Q-GDTD].
  12. Sydney Ember, Biden Was Asked About Canceling Student Loan Debt. Progressives Saw an Opening., N.Y. Times (Nov. 16, 2020), https://www.nytimes.com/2020/11/16/us/biden-was-asked-about-canceling-student-loan-debt-progressives-saw-an-opening.html [https://per​ma.cc/DN3Y-VTQE].
  13. Lauren Egan, ‘I Will Not Make That Happen’: Biden Declines Democrats’ Call to Cancel $50K in Student Debt, NBC (Feb. 17, 2021), https://www.nbcnews.com/politics/joe-biden/i-will-not-make-happen-biden-declines-democrats-call-cancel-n1258069 [https://perma.cc/Q6​X9-HDY2].
  14. In October, the Biden administration released the redacted version of a memorandum evaluating the president’s authority to unilaterally cancel student loans. Andrew Marantz, What Biden Can’t Do on Student Debt—And What He Won’t Do, New Yorker (Oct. 29, 2021), https://www.newyorker.com/news/news-desk/what-biden-cant-do-on-student-debt-an​d-what-he-wont-do [https://perma.cc/V65Q-MKWK].
  15. Warren et al., Press Release, supra note 8. Section 1082(a) codifies § 432(a) of the HEA, as originally enacted in 1965.
  16. National Consumer Law Center, Comment Submitted by the National Consumer Law Center to the Consumer Financial Protection Bureau Re: Request for Information Regarding Student Loan Servicing (July 13, 2015), https://www.nclc.org/images/pdf/special_pr​ojects/sl/NCLC_Comments_Student_Loan_Servicing_Jul2015.pdf [https://perma.cc/2Q9K-H9K4].
  17. Luke Herrine, The Law and Political Economy of a Student Debt Jubilee, 68 Buff. L. Rev. 281, 342–43 (2020) (arguing that the Department of Education’s inherent enforcement discretion should settle the issue in favor of legality); see also Dalié Jiménez & Jonathan D. Glater, Student Debt Is a Civil Rights Issue: The Case for Debt Relief and Higher Education Reform, 55 Harv. C.R.-C.L. L. Rev. 131, 142 (2020) (discussing the policy benefits of debt relief).
  18. Letter from Eileen Connor, Legal Dir., Harvard L. Sch. Legal Servs. Ctr., to Elizabeth Warren, U.S. Sen. from Massachusetts (Jan. 13, 2020), https://static.politico.com/4c/c4/dfadd​bb94fd684ccfa99e34bc080/student-debt-letter-2.pdf.pdf [https://perma.cc/WU39-ATP5].
  19. Michael Stratford, Pelosi Rebuffs Schumer’s Push to Get Biden to Cancel Student Debt, Politico (July 29, 2021, 10:32 AM), https://www.politico.com/news/2021/07/29/pelosi-schume-student-debt-501521 [https://perma.cc/A6US-5AP6].
  20. For example, a Harvard law professor and student argued that there is “a strong possibility that the initiative might be tied up in court for many years.” Howell Jackson & Colin Mark, Opinion, Executive Authority to Forgive Student Loans Is Not So Simple, Regul. Rev. (Apr. 19, 2021), https://www.theregreview.org/2021/04/19/jackson-mark-executive-authority-forgive-student-loans-not-simple/ [https://perma.cc/ZG4V-FJ66]; see also Jordan Weissman, What Biden Should Do About Student Debt, Slate (Nov. 19, 2020, 10:40 AM) (arguing that loan forgiveness through unilateral executive action may not hold up to legal challenges), https://slate.com/business/2020/11/biden-student-debt-forgiveness.html [https://perma.cc/6X​4G-EHQD]; Annie Nova, Student Loan Forgiveness Is Still Up in the Air. What to Do in the Meantime, CNBC (Sep. 24, 2021, 10:58 AM EDT) (explaining that experts believe cancelling student loans via executive action may be held up in the courts), https://www.cn​bc.com/2021/09/24/what-to-do-while-waiting-for-news-on-student-loan-forgiveness-.html [h​ttps://perma.cc/T62C-WKEB].
  21. Mila Sohoni, On Dollars and Deference: Agencies, Spending, and Economic Rights, 66 Duke L.J. 1677, 1706–08 (2017) (discussing standing and Executive-driven funding schemes); Gillian E. Metzger, Taking Appropriations Seriously, 121 Colum. L. Rev. 1075, 1110–11 (2021) (noting difficulties obtaining standing to challenge Appropriations Clause violations).
  22. 25 U.S.C. § 1496(d).
  23. 38 U.S.C. §§ 3720(a)(4); 5302(b).
  24. 7 U.S.C. § 1981(b)(4).
  25. 15 U.S.C. § 634(b)(2).
  26. The Treasury Secretary may also unilaterally waive customs claims. 19 U.S.C. § 1617 (2018). Fee waivers might provide another example of this standing dead zone. See, e.g., 15 U.S.C. § 636(a)(33)(E) (waiving guarantee fees for veterans applying for small business loans).
  27. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
  28. Id. at 560–61.
  29. Id. at 561–62.
  30. See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021).
  31.  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 208, 220 (1974) (determining that plaintiff did not have standing to allege that members of Congress were violating the Incompatibility Clause by holding commissions in the military while serving in office).
  32. Ex parte Lévitt, 302 U.S. 633, 633 (1937) (per curiam).
  33. Id. at 634.
  34. Lujan, 504 U.S. at 575–76; Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018).
  35. Lujan, 504 U.S. at 602 (Blackmun, J., dissenting).
  36. Id. at 604.
  37. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227 (1974) (“The assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 420 (2013).
  38. Id. at 408; see also Lujan, 504 U.S. at 576–77.
  39. Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 168, 179 (1992).
  40. Id. at 173. Alternative standards for granting standing include whenever Congress creates a cause of action or when the plaintiff is the party most interested in the outcome of the case. Richard M. Re, Relative Standing, 102 Geo. L.J. 1191, 1197 (2014).
  41. Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.).
  42. Antideficiency Act, Pub. L. No. 97-258, 96 Stat. 877 (1982); Federal Credit Reform Act, Pub. L. No. 93-344, 104 Stat. 1388-610 (1990) (codified as amended at 2 U.S.C. §§ 661–661f).
  43. To be subject to review, agency action must be final and there must be no alternative remedy. 5 U.S.C. § 704. Judicial review may also be precluded or committed to agency discretion by law. 5 U.S.C. § 701(a).
  44. See generally Walter Gellhorn, The Administrative Procedure Act: The Beginnings, 72 Va. L. Rev. 219, 219–26 (1986) (describing negotiations lasting from 1933 until 1946).
  45. Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights, 95 Harv. L. Rev. 1193, 1248 (1982).
  46. 5 U.S.C. § 553.
  47. 5 U.S.C. §§ 554–55.
  48. 5 U.S.C. §§ 556–57.
  49. 5 U.S.C. § 702.
  50. 5 U.S.C. § 706.
  51. Dep’t of Com. v. New York, 139 S. Ct. 2551, 2562, 2576 (2019).
  52. 5 U.S.C. § 702 (2018).
  53. CARES Act, Pub. L. No. 116-136, § 3513, 134 Stat. 281, 404 (2020).
  54. Press Release, Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic (Aug. 8, 2020), https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [https://pe​rma.cc/VTU6-2339].
  55. Memorandum from President Donald J. Trump to the Secretary of Education, Pausing Federal Student Loan Payments (Jan. 20, 2021), https://trumpwhitehouse.archives.gov/presid​ential-actions/memorandum-continued-student-loan-payment-relief-covid-19-pandemic/ [htt​ps://perma.cc/L24P-XP8Z].
  56. 20 U.S.C. § 1087e(f)(2)(D).
  57. 20 U.S.C. § 1087; Total and Permanent Disability Discharge of Loans Under Title IV of the Higher Education Act, 86 Fed. Reg. 46972, 46972 (Aug. 23, 2021). Press Release, U.S. Dep’t of Educ., Over 323,000 Federal Student Loan Borrowers to Receive $5.8 Billion in Automatic Total and Permanent Disability Discharges (Aug. 19, 2021), https://www.ed.gov/n​ews/press-releases/over-323000-federal-student-loan-borrowers-receive-58-billion-automati​c-total-and-permanent-disability-discharges [https://perma.cc/H2V2-VPL5].
  58. HEROES Act of 2003, Pub. L. No. 108-76, § 2, 117 Stat. 904 (2003) (codified at 10 U.S.C. §§ 1098aa–1098ee); Press Release, U.S. Dep’t of Educ., U.S. Department of Education Announces Transformational Changes to the Public Service Loan Forgiveness Program, Will Put Over 550,000 Public Service Workers Closer to Loan Forgiveness (Oct. 6, 2021), https://www.ed.gov/news/press-releases/us-department-education-announces-transformation​al-changes-public-service-loan-forgiveness-program-will-put-over-550000-public-service-w​orkers-closer-loan-forgiveness [https://perma.cc/Y77B-QGPZ]. The Department of Education did not publish its action in the Federal Register but confirmed the basis of the action to the author.
  59. Press Release, U.S. Dep’t of Educ., Education Department Approves $415 Million in Borrower Defense Claims Including for Former DeVry University Students (Feb. 16, 2022), https://www.ed.gov/news/press-releases/education-department-approves-415-million-borrow​er-defense-claims-including-former-devry-university-students [https://perma.cc/G5TW-8FG​Q].
  60. Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 3.
  61. Herrine, supra note 17, at 395–97.
  62. 262 U.S. 447, 478–80 (1923).
  63. Id. at 487.
  64. 392 U.S. 83, 104–06 (1968).
  65. Flast v. Cohen, 392 U.S. 83, 102–04 (1968).
  66.  Joshua G. Urquhart, Disfavored Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines, 81 Fordham L. Rev. 1263, 1271 (2012).
  67. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 592 (2007).
  68. Id. at 593, 605.
  69. Letter from Eileen Connor to Elizabeth Warren, supra note 18, at 2. See also 2 U.S.C. § 661c (referencing student loans as exempt from general appropriations requirements).
  70. See Hein, 551 U.S. at 633, (Scalia, J., concurring) (2007).
  71. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
  72. Id. at 562.
  73.  See Note, Nontaxpayer Standing, Religious Favoritism, and the Distribution of Government Benefits: The Outer Bounds of the Endorsement Test, 123 Harv. L. Rev. 1999 (2010) (discussing distribution of government benefits in ways that favor certain religions).
  74. Coleman v. Miller, 307 U.S. 433, 438 (1939).
  75. Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 93940 (1983).
  76. Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2659 (2015).
  77. See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 576–77 (1992); Raines v. Byrd, 521 U.S. 811, 819–20 (1997).
  78. See, e.g., Chenoweth v. Clinton, 181 F.3d 112, 117 (D.C. Cir. 1999) (rejecting a challenge to creation of a program through executive order under a duly enacted federal statute); U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015) (determining that the House could sue based on constitutional claims, such as violations of the Appropriations Clause, but not for claims about the implementation of a statute).
  79. Burwell, 130 F. Supp. 3d at 58.
  80. U.S. House of Representatives v. Mnuchin, 976 F.3d 1, 4 (D.C. Cir. 2020) (vacated as moot).
  81. Id. at 15.
  82. Id. at 13.
  83. See text accompanying note 69.
  84.  When Texas Governor Greg Abbott was the state’s Attorney General, he reportedly described his job: “I go into the office, I sue Barack Obama, and then I go home.” Rachel Weiner, Five things to know about Greg Abbott, Wash. Post (July 15, 2013), https://www.washingtonpost.com/news/the-fix/wp/2013/07/15/five-things-to-know-about-gr​eg-abbott/ [https://perma.cc/JQ4U-5F9R].
  85. See, e.g., Texas v. United States, 809 F.3d 134, 146, 188 (5th Cir. 2015) (challenging the Obama Administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program); Katherine Mims Crocker, An Organizational Account of State Standing, 94 Notre Dame L. Rev. 2057, 2058 (2019) [hereinafter Crocker, Organizational Account] (discussing the ensuing consternation within legal academia).
  86. Crocker, Organizational Account, supra note 85, at 2061–67. See also Katherine Mims Crocker, Note, Securing Sovereign State Standing, 97 Va. L. Rev. 2051, 2056–68 (2011) (describing the evolution of jurisprudence regarding states’ sovereign interests); Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387, 410–11 (1995) (describing states as plaintiffs).
  87. Woolhandler & Collins, supra note 86, at 392–93.
  88. Hawaii v. Trump, 859 F.3d 741, 764–65 (9th Cir. 2017). See also Texas v. United States, 809 F.3d 134, 152–53 (5th Cir. 2015) (finding standing to sue the Obama administration for DAPA); Massachusetts v. HHS, 923 F.3d 209, 222–23 (1st Cir. 2019) (finding standing because the Trump administration’s attempt to limit access to contraceptives under the Affordable Care Act would increase use of state funded contraceptive services).
  89. Woolhandler & Collins, supra note 86, at 410–11.
  90. Crocker, Organizational Account, supra note 85, at 2064–65; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 608 (1982).
  91. Missouri v. Illinois, 180 U.S. 208, 241 (1901) (holding that standing may be asserted when the “health and comfort” of a state’s citizens are in jeopardy).
  92. It is worth noting that if the decision to abrogate student loan debt is committed to agency discretion by law, then the APA does not in fact apply, meaning that the cause of action remains unavailable to all, including loan servicers. 5 U.S.C. § 701; Herrine, supra note 17, at 368–95.
  93. U.S. Dep’t of Educ., Who’s My Student Loan Servicer?, https://studentaid.gov/manage-loans/repayment/servicers [https://perma.cc/8D6Z-XFPQ].
  94. U.S. Dep’t of Educ. & Great Lakes Educ. Loan Servs., Amendment of Solicitation/Modification of Contract, at 4 (effective Sept. 1, 2014), https://studentaid.gov/site​s/default/files/ED-FSA-09-D-0012_MOD_0080_GreatLakes.pdf [https://perma.cc/ZR96-ZZ​9N].
  95. Cottrell v. Alcon Lab’ys, 874 F.3d 154, 163 (3d Cir. 2017).
  96. Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970). See also Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708 (2019) (describing the zone of interests test).
  97. Data Processing, 397 U.S. at 153.
  98.  The Supreme Court has noted that “prudential standing” really reflects statutory interpretation and “whether a legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). It is therefore markedly different from constitutional Article III standing and rests on the scope of the statute, not constitutional restrictions.
  99. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987) (noting that “[t]he test is not meant to be especially demanding”).
  100. Air Courier Conf. of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 530 (1991).
  101. Id. at 519–20.
  102. Id. at 528.
  103. Dir., Off. of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 130 (1995).
  104. See, e.g., Nat’l Credit Union Admin. v. 1st Nat. Bank & Tr. Co., 522 U.S. 479, 488 (1998); Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 157 (1970).
  105. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 137 (2014)
  106. Professor Nelson argues that the Court’s Data Processing decision should be read such that action lying arguably within the “zone of interests” is a necessary but not sufficient condition for judicial review. Nelson, supra note 96, at 710–11. Yet even under the more expansive view of prudential standing, where being within the arguable zone of interests ensures judicial review, plaintiffs’ claims will fail.
  107. Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219, 1219 (codified as amended in scattered sections of 20 U.S.C.).
  108.  See 20 U.S.C. § 1018a (providing for Department of Education contracting in compliance with federal procurement laws).
  109. Jonathan R. Siegel, Zone of Interests, 92 Geo. L.J. 317, 335–37 (2004).
  110. See IRS, An Offer in Compromise May Help Some Taxpayers Settle Their Tax Bill (May 3, 2021), https://www.irs.gov/newsroom/an-offer-in-compromise-may-help-some-taxpayers-settle-their-tax-bill [https://perma.cc/Z4UC-SVFU] (“The goal is a compromise that suits the best interest of both the taxpayer and the agency.”).
  111. Air Courier Conf. of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 530 (1991).
  112. 20 U.S.C. § 1098a.
  113. See Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (determining that in-house employees’ interests were antithetical to those of the contractors, whose interests the statute in question sought to further).
  114. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990).
  115. Dismas Charities, Inc. v. DOJ, 287 F. Supp. 2d 741, 742–43 (W.D. Ky. 2003).
  116. Id. at 746.
  117. Id. at 748.
  118. Courtney v. Smith, 297 F.3d 455, 458 (6th Cir. 2002).
  119. Id. at 466. See also Am. Fed’n of Gov’t Emps., Loc. 2119 v. Cohen, 171 F.3d 460, 471 (7th Cir. 1999) (“[T]he interests of federal employment, and the goal of private procurement are inconsistent.”); Nat’l Fed’n of Fed. Emps. v. Cheney, 883 F.2d 1038, 1051 (D.C. Cir. 1989) (reasoning that the interests of federal employees are antithetical to those of federal contractors, and therefore inconsistent with the interests of a federal statute allowing for contracting).
  120. See, e.g., Immigr. & Naturalization Serv. v. Legalization Assistance Project of the Los Angeles Cnty. Fed’n of Lab., 510 U.S. 1301, 1305 (1993) (deciding that legal services organizations were not within the zone of interests an immigration statute sought to protect).
  121. See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 669 (1993) (finding standing to challenge ordinance according preferential treatment to minority-owned businesses).
  122. U.S. Gov’t Accountability Off., A Snapshot of Government-Wide Contracting for FY 2020 (infographic) (June 22, 2021), https://www.gao.gov/blog/snapshot-government-wide-contracting-fy-2020-infographic [https://perma.cc/KA6Y-HUJS].

Lawmaking in the Legitimacy Gap: A Short History of the Supreme Court’s Interpretive Finality

Despite bestowing an epic name upon the nation’s highest tribunal, the Constitution says precious little about the weight that we must accord to its constitutional decisions. That silence has spawned serious division among jurists and scholars. Some argue that the Supreme Court may conclusively determine only the rights of the parties before it. Yet others contend that its interpretations, like the Constitution itself, are “the supreme Law of the Land.” Whichever view is correct is today a high-stakes question, given that the Court, practically speaking, enjoys interpretive finality. But its privileged position has a questionable historical pedigree. Far from the Court serving as the ultimate expositor of constitutional meaning, constitutional interpretation was originally seen as a dialogue between the Court and the People. The Court, no doubt, could construe the Constitution to settle individual controversies. But when it erred, the People could swiftly correct it by amending the Constitution. A forgotten but important example of that model, this Essay contends, was the People’s reversal of Chisholm v. Georgia through the Eleventh Amendment. Yet the “Chisholm model” was not to last, and the amendment process is nearly defunct. Why? One reason, this Essay suggests, is that the Court would later begin to render decisions within “legitimacy gaps”—where its constitutional interpretations were demonstrably erroneous but also insufficiently unpopular to reverse. Such legitimacy gaps corrode the design of Article V and facilitate the judicial arrogation of power. But they also have a straightforward remedy: judicial adherence to the Constitution’s original meaning.

Introduction

Even before its formal creation, the federal judiciary spawned sharp debate about its proper role in a system of separated powers. Writing as “Publius” in defense of the proposed Constitution, Alexander Hamilton famously remarked that, among the three “departments,” the judiciary would be the “least dangerous.”1.The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).Show More Having “neither FORCE nor WILL,” it could merely render judgments in individual cases and controversies.2.Id.Show More And it still would “depend upon the aid of the executive arm” for those judgments to carry real-world significance.3.Id.Show More But even at the Framing, Hamilton hardly could have boasted that his depiction of the judicial power enjoyed universal acclaim. Less famous, but no less important, was the attack on Article III that “Brutus” had mounted in the Anti-Federalist.4.See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).Show More Rejecting claims of a timid judiciary, Brutus instead forecasted that it would acquire inordinate strength.5.Id. at 298–99.Show More It alone had “the power, in the last resort, to determine . . . the meaning and construction of the constitution.”6.Id. at 299.Show More Courts could thus control the legislature in a way that the legislature could not control the courts: since “the constitution is the highest or supreme law,” Brutus said, courts would enjoy the prerogative to reject “a law, which, in their judgment, opposes the constitution.”7.Id.Show More And without a practical mechanism confining courts to the Constitution’s “letter,” their constructions would become “very liberal” and their powers “supreme and uncontrollable.”8.Id. at 299–300.Show More

This back-and-forth, it turns out, presaged central debates about the nature of judicial power that persisted long after the Framing. Consider, for instance, the following question: Who is the legitimate interpreter of the federal Constitution? One view suggests that there is no single answer. Rather, everybody with a stake in constitutional meaning—the executive, legislature, judges, and People—may claim an interpretive role.9.See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see alsoMichael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).Show More But another answer is that the Supreme Court really is supreme and that its constitutional interpretations are final.10 10.Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).Show More On that view, the Court’s opinions (and the “constitutional law” they generate) become part of the Constitution itself.11 11.Id.Show More Through the Supremacy Clause, then, they constitute “the supreme Law of the Land.”12 12.Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).Show More

Whichever view is correct has obvious and profound consequences for American democracy. But belying that issue’s central importance is the Constitution’s laconic treatment of it. We learn from Article III that federal courts will exercise something called the “judicial Power.”13 13.U.S. Const. art. III, § 1.Show More We also learn that there will (indeed, must) be “one supreme Court” and that Congress may (but need not) create various “inferior Courts.”14 14.Id.Show More And, Article III tells us, these courts’ subject-matter jurisdiction extends only to certain “cases or controversies.”15 15.Id. art. III, § 2.Show More That is about it. We do not learn which aspects of the Supreme Court’s work product (whether opinions or mere judgments) are binding, whether either may bind non-parties, or, at least directly, whether even the lower courts must follow Supreme Court precedent.16 16.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).Show More The Supremacy Clause is not of much help either. Though labeling “supreme” the “Constitution” and “Laws of the United States,” the clause never equates judicial opinions with the “Constitution” or “Laws.”17 17.U.S. Const. art. VI, cl. 2.Show More Indeed, it omits mention of opinions altogether.18 18.Id.Show More

Given that lacuna, some defenders of “judicial supremacy” (that is, of judges’ interpretive finality) have conceded that it cannot be justified by the text alone.19 19.See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).Show More Professors Larry Alexander and Frederick Schauer, for instance, contend that because “a central moral function of law is to settle what ought to be done,” treating judicial opinions as functionally supreme can have important practical benefits.20 20.Id. at 457.Show More Still, Alexander and Schauer acknowledge that their thesis has encountered “thoughtful and troubling” criticisms about the ahistorical nature of judicial supremacy.21 21.Id. at 458.Show More Professor Edward Hartnett, for example, has persuasively argued that history refutes “opinion supremacy.”22 22.Hartnett, supranote 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).Show More Instead, it confirms that constitutional interpretation should be a “conversation” between courts and others “legitimately interested in the meaning of the Constitution,” like the political branches.23 23.Hartnett, supranote 9, at 159.Show More Judicial attempts to arrogate the sole power of final interpretation—as the Supreme Court claimed to do most famously in Cooper v. Aaron24 24.See supra note 10.Show More—are thus misguided.25 25.Hartnett, supranote 9, at 126.Show More

Like Professor Hartnett and others, this Essay contends that judicial supremacy is less a textual command than an unwritten and historically contingent norm. But this Essay makes that point by examining a deeply underappreciated constitutional moment in American history: the Supreme Court’s 1793 decision in Chisholm v. Georgia26 26.2 U.S. (2 Dall.) 419 (1793).Show More and its swift demise through the People’s ratification of the Eleventh Amendment.27 27.See U.S. Const. amend. XI.Show More Chisholm nominally concerned whether Article III’s grant of diversity jurisdiction abrogated states’ immunity from suit by private individuals in federal court.28 28.Chisholm, 2 U.S. (2 Dall.) at 430–31.Show More Yet as Part I details, the Chisholm decision—the Court’s first construing the Constitution29 29.5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].Show More and the first to be reversed by an amendment30 30.Id.Show More—has a hidden significance. It provides an early and provocative example of how constitutional interpretation was viewed as a dialogue between the Court and the People. The Court, to be sure, was entitled to construe the constitutional text. But when it erred, the People could swiftly correct it with a more sublime exposition. The Chisholm incident thus contains valuable clues about how the People believed they would maintain interpretive supremacy through Article V.

As Part II discusses, however, the People’s check on the judiciary was not to last. Like Brutus predicted,31 31.See Essays of Brutus No. XII, supranote 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).Show More judicial review would come to operate within the context of what I term “legitimacy gaps”—where constitutional decisions, though demonstrably inconsistent with the Constitution itself, are also tough to reverse.32 32.I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.Show More Sometimes, for example, a dubious right gained popular backing that was at once appreciable but also insufficient to produce a constitutional amendment. Yet the Court still codified the right into “constitutional law.”33 33.Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g.,Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).Show More While it thus could not have achieved constitutional status through Article V on its own merits, the right was insufficiently unpopular to abrogate by an amendment. Or, perhaps worse, the People could affirmatively recognize new rights with a constitutional amendment, but the Court could then undermine those guarantees with an erroneous construction that was insufficiently unpopular to dislodge. The Court’s construction was thus illegitimate, but not so illegitimate that it spurred prompt reversal. The rise of the Court’s interpretive finality, in other words, hinged on the existence of background levels of polarization sufficient to insulate controversial decisions from correction by the People.

But the rabid polarization that has stymied popular checks on the judiciary should not be seen, in turn, as a license for the judiciary to freely operate within those legitimacy gaps. Amendments’ rarity should instead cause judges to be even more circumspect in their constitutional constructions. To that end, this Essay suggests that courts can mitigate the lack of a popular-constitutional check by declining to make new decisions—and hesitating to extend old ones—that are dubious as an original matter. By seeking fidelity to original meaning, judges can defuse the “judicial tyranny” that legitimacy gaps may otherwise create.34 34.Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).Show More

I. Chisholm and the Lost Conversation Between the Court and the People

By its terms, Article III of the Constitution provides that “[t]he judicial Power shall extend . . . to Controversies . . . between a State and Citizens of another State.”35 35.U.S. Const. art. III, § 2, cl. 1.Show More But does that grant of jurisdiction mean that private plaintiffs may hale even unconsenting states into a federal tribunal? That was the question the Supreme Court considered in Chisholm v. Georgia.36 36.2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).Show More During the Revolutionary War, Georgia had contracted with South Carolina merchant Robert Farquhar for the purchase of goods worth about £9,000 sterling.37 37.5 DHSC, supra note 29, at 127.Show More Farquhar delivered the goods but, despite his “many demands,” Georgia never paid.38 38.Id.Show More Farquhar “spent the remainder of his life trying to recover the debt.”39 39.Id.Show More Yet he died in 1784, still uncompensated.40 40.Id.Show More In response, Farquhar’s executor, Alexander Chisholm, sued Georgia in the United States Circuit Court for the District of Georgia.41 41.Id. at 127–28.Show More The novel claim put Georgia’s government “at a loss to know how to proceed.”42 42.Id. at 128.Show More It eventually filed a plea to the jurisdiction, asserting that it could not “be drawn or compelled” into court without its consent.43 43.Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.Show More

District Judge Nathaniel Pendleton, sitting alongside circuit Justice James Iredell, agreed.44 44.See 5 DHSC, supra note 29, at 130.Show More Though Pendleton’s opinion is lost to history, Iredell’s survived.45 45.Id. at 130 n.25.Show More He began by noting the practical oddities of subjecting a state to judicial process. It seemed that Georgia’s governor, Edward Telfair, would be the relevant natural person to appear on Georgia’s behalf.46 46.See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.Show More But if many plaintiffs sued Georgia, Telfair could not possibly defend all the suits at once. So, Iredell reasoned, it was proper that subordinate counsel should appear on Georgia’s behalf and defend the action.47 47.Id.Show More Satisfied that Georgia’s plea to the jurisdiction was procedurally valid, Iredell turned to jurisdiction itself. He noted first that even if Article III permitted state suability in theory, Congress had not explicitly created such jurisdiction by statute.48 48.Id. at 154.Show More In any event, he said, only the Supreme Court could even exercise such jurisdiction.49 49.Id. at 153.Show More Article III specifies that the Court “shall have original Jurisdiction” in cases “in which a State shall be Party,”50 50.U.S. Const. art. III, § 2, cl. 2.Show More and given the importance of state suability, he reasoned, the Court’s jurisdiction must not only be original, but also exclusive.51 51.Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supranote 29, at 148, 153.Show More He and Pendleton thus dismissed the suit.52 52.5 DHSC, supranote 29, at 130–31.Show More

Undeterred, Chisholm filed an original action against Georgia in the Supreme Court itself.53 53.Id. at 131.Show More Georgia refused to appear, so the Court heard argument only from counsel for Chisholm, Edmund Randolph.54 54.Id. at 134.Show More Both Randolph and the five Justices who heard the case understood that its central issue—state suability—was paramount.55 55.SeeChisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).Show More The states had accumulated massive debts to private creditors during the Revolutionary War.56 56.5 DHSC, supranote 29, at 2.Show More They had also expropriated many Loyalists’ property.57 57.Id.Show More If creditors or Loyalists could use the federal courts to vindicate those claims—states’ objections notwithstanding—states could face the prospect of bankruptcy. Unsurprisingly, the Chisholm litigation attracted intense public scrutiny.58 58.Id. at 134.Show More

For the “numerous and respectable audience” that had gathered in Philadelphia to hear the Court’s decision in February 1793, the states initially might have appeared secure.59 59.Id.Show More Justice Iredell, back from the circuit assignment, delivered his opinion first.60 60.Chisholm, 2 U.S. (2 Dall.) at 429.Show More He again rejected the claim that states could be sued in federal court, echoing his statutory arguments from the circuit.61 61.Id. at 430, 432 (opinion of Iredell, J.).Show More But as his colleagues (Justices Blair, Wilson, Cushing, and Chief Justice Jay) delivered their own opinions seriatim, it became clear that Iredell would not prevail. Rather—relying on everything from the Constitution’s supposedly plain text62 62.Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).Show More to sundry European philosophers63 63.Id. at 457–63 (opinion of Wilson, J.).Show More—the four contended that, indeed, Article III had abrogated states’ immunity from suit.

The decision “fell upon the country with a profound shock”64 64.5 DHSC, supranote 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).Show More—and for good reason. George Mason and Patrick Henry had criticized the proposed Constitution for its apparent codification of state suability.65 65.Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).Show More But “during the ratification debates . . . both James Madison and John Marshall [had] explicitly asserted that Article III would not expose unconsenting states to suit by individuals.”66 66.Id. at 1564.Show More Likewise, Alexander Hamilton had written in Federalist No. 81 that it was “inherent in the nature of sovereignty” for a state “not to be amenable to the suit of an individual without its consent.”67 67.The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).Show More So for Anti-Federalists who had relented when given those guarantees, Chisholm was no doubt a stinging decision.

And their anger was justified. Chisholm’s interpretation of Article III was both inconsistent with the ratification debates and simply wrong: Unconsenting states’ immunity from process was a personal-jurisdictional backdrop that Article III was not supposed to abolish.68 68.Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.Show More More important for our purposes, though, was the ensuing reaction. Observers almost immediately began to contest the deference due the Supreme Court’s pronouncement. True, the Court found defenders in various quarters. Noah Webster’s paper, the American Minerva, ran an editorial strongly defending judicial supremacy.69 69.See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.Show More The Supreme Court had “deliberately decided [that Article III] extends to enable a person to sue a State,” it said.70 70.See id.Show More “This decision is then a law of the United States, or rather a part of the constitution,” and thus “binding on every citizen.”71 71.Id. (emphasis added).Show More Edmund Pendleton likewise wrote to his nephew Nathaniel that though Chisholm seemed wrongly decided, he supposed that it “must be taken for law.”72 72.Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supranote 29, at 232, 232.Show More A similar and “striking . . . defense of the federal judiciary” arose from the Virginia Senate.73 73.Id. at 285–86.Show More When the House of Delegates excoriated “the decision of the Supreme Fœderal Court,” several state senators lodged protest.74 74.See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.Show More The Constitution was “at least ambiguous” on state suability, in their view, so the Court did not deserve the lower house’s “censure.”75 75.Id. at 339.Show More

Among the broader populace, however, the Justices’ opinions were then considered neither infallible nor, as a practical matter, final. The “swift and widespread” perception was instead that Chisholm would soon be reversed through Article V.76 76.2 DHSC, supra note 29, at 338.Show More Vice-President John Adams predicted as much in a letter to his son in March 1793, even before copies of the Chisholm opinions were widely available.77 77.Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].Show More “The Report of the late Case in the Supream national Court will soon be made public and the Arguments of the Judges weighed,” he said.78 78.Id.Show More “If it Should be necessary for Congress to interfere by Submitting that part of the Constitution to the Revision of the State Legislatures, they have Authority to do it.”79 79.Id.Show More His assessment was not only correct but even somewhat belated. For on the same day of Chisholm’s decision, the House of Representatives had already begun to contemplate an amendment barring state suability.80 80.2 DHSC, supra note 29.Show More

Resistance likewise gained momentum in the state legislatures. Georgia soon demanded “an explanatory amendment to the Constitution” reversing Chisholm.81 81.Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supranote 29, at 235, 235.Show More And it urged federal “Senators and Representatives to use every means in their power to obtain a speedy ratification.”82 82.Id.Show More Virginia and Connecticut likewise instructed their congressional delegates to secure an amendment “to remove or explain any clause” suggesting “that a state is compellable to answer in any suit.”83 83.Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supranote 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supranote 29, at 609, 609.Show More At Governor John Hancock’s direction, Massachusetts made a similar push.84 84.See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supranote 29, at 230, 230.Show More Its General Court recommended that any text in Article III supporting state suability be “wholly expunged from the Constitution.”85 85.Id.Show More For “the Supreme Judicial Court of the United States,” it said, “hath given a construction to [it] very different from the ideas which the Citizens of this Commonwealth entertained . . . at the time it was adopted.”86 86.Id. at 231.Show More

By March 1794 (soon after Chisholm’s first anniversary), the House and Senate had approved the text of the requested explanatory amendment.87 87.4 Annals of Cong. 477 (1795).Show More In its now-famous language, it declared that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”88 88.Id.; see also U.S. Const. amend. XI (stating the same).Show More With lawyerly precision, then, it dispelled the jurisdiction the Chisholm majority had grafted onto Article III.

Ratification came soon after, first in New York and last in North Carolina in February 1795.89 89.See Pfander, supranote 64, at 1271 n.5.Show More As the twelfth in a Union of then fifteen to ratify, North Carolina converted the proposal into the Eleventh Amendment.90 90.Id.Show More The Court’s “first great constitutional case”91 91.Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).Show More thus became its first great constitutional defeat: Chisholm’s reign was extinguished in only its second year.

For the People, however, it was the first great interpretive victory. After the Justices had offered their own construction of Article III, the People disagreed, and so they reversed it with a superior exposition through Article V. In this respect, the “explanatory” language of the Eleventh Amendment is revealing.92 92.Pfander, supranote 64, at 1335–43.Show More It treated Chisholm not as having unveiled some truth about the Constitution that required a change. Rather, by informing the judiciary how Article III “shall not be construed,” the amendment framed Chisholm as wrong the day it was decided.93 93.Id.Show More Indeed, the original Constitution had not meant to abolish the states’ existing immunity. But it took the People’s exposition to rescue that original meaning from the Court’s erroneous construction.

Uninformed observers might assume that this exchange sparked a longer tradition of vigorous popular checks on the judiciary, with the People sitting as an “Article V court” to continuously revise judicial interpretations. However, Part II suggests why that future never materialized.

II. Legitimacy Gaps and the Expansion of Judicial Power

Many reasons account for why the Court’s later decisions were (and still are) almost never overruled by amendment. Much of the Court’s docket, to be sure, involves “lawyer’s law”—low-salience disputes incapable of generating broad public interest. But the Court has also waded into some of the most fraught public debates imaginable—from abortion and affirmative action to school prayer and same-sex marriage. Even still, only perhaps five of its decisions in the last two-hundred years have met direct reversal through Article V.94 94.SeeU.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).Show More Why? It seems incredible to believe that the Court always gets it right; the Court itself sometimes disavows important portions of its own jurisprudence. Rather, Chisholm again bears important lessons. Article V worked in that case, it turns out, because state suability was both economically important and not particularly controversial. A wide consensus existed that the Court’s decision was erroneous. And the People were collectively mad enough to do something about it.

But imagine instead that Federalist support for the decision had been more widespread. Indeed, imagine that Federalists and Anti-Federalists had fractured evenly into their respective camps, so that state suability enjoyed public approval and disapproval in about equal measure. In that case, Article III’s actual meaning would not have been particularly important. The Court could have decided Chisholm either way—for or against state suability—and its decision would have been immune from Article V review. If the public had been more polarized on the immunity issue, in other words, Chisholm would have survived as an important precedent in “constitutional law.” And it would have done so even despite its status as a demonstrably erroneous misreading of the original Constitution.

That probably sounds like a bad outcome. The People would have achieved seeming consensus during ratification, only to be duped by misguided seriatim opinions and subsequent polarization. But for many later decisions, that counterfactual is a reality—it’s what really explains why the Court became near-impervious to amendments. So long as its decisions are insufficiently unpopular to reverse, the Court can safely abandon the Constitution’s actual meaning. A couple of brief examples will illustrate such legitimacy gaps in action.

A. Inventing Dubious Rights: New York Times Co. v. Sullivan (1964)95 95.376 U.S. 254 (1964).Show More

As originally understood, the First Amendment had “nothing to do” with regulating libel suits.96 96.Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).Show More To the contrary, libel was a crime and a tort at the Framing and well into the twentieth century.97 97.Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).Show More As late as 1952, the Supreme Court upheld a libel conviction, given that “libelous utterances” were outside “the area of constitutionally protected speech.”98 98.Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).Show More Twelve years later, however, the Court upended almost two centuries of jurisprudence and inaugurated “a seemingly irreversible process of constitutionalizing the entire law of libel[.]”99 99.Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).Show More First, in New York Times Co. v. Sullivan, the Court held that public officials who sued for libel had to prove that defendants acted with “actual malice”—either while knowing their statements were false or with reckless disregard for their falsity.100 100.Sullivan, 376 U.S. at 279–80.Show More Then, “[t]he Court promptly expanded” that rule101 101.McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).Show More to include “public figures”—private citizens otherwise engaged in public discourse102 102.Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).Show More—and later even to certain private figures criticized on matters of “public concern.”103 103.Dun & Bradstreet, Inc., 472 U.S. at 751.Show More

As a result, libel actions have become “almost impossible” to win, even when defendants’ accusations are egregious and demonstrably false.104 104.Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).Show More Unsurprisingly, the actual malice standard has generated intense controversy. Justices Gorsuch and Thomas, for instance, have criticized the decision for its raw policymaking and lack of any plausible connection to original meaning.105 105.Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).Show More Progressives, too, have called for Sullivan’s revision, since it ended up immunizing outright “lies” rather than “vigorous public exchange.”106 106.Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]Show More Yet the decision retains a fair degree of support and is firmly entrenched in our First Amendment mythology.107 107.See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].Show More (And, naturally, the last attempt to reverse it through a constitutional amendment failed.)108 108.H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).Show More So, while Sullivan bears questionable relation to the Constitution itself, it survives in a legitimacy gap as a leading principle of constitutional law.109 109.It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).Show More

B. Cabining Rights Guaranteed: United States v. Cruikshank (1876)110 110.92 U.S. 542 (1875).Show More

After the Union’s victory in the Civil War—and the several hundred thousand Union deaths required to achieve it—the nation ratified the “Reconstruction Amendments” in an attempt to unravel Southern white supremacy. The Thirteenth abolished slavery,111 111.SeeU.S. Const. amend. XIII.Show More while the Fifteenth prohibited denial of the right to vote on account of race.112 112.SeeU.S. Const. amend. XV.Show More And the Fourteenth, by its terms, featured three central guarantees: due process, equal protection, and that no state should “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”113 113.U.S. Const. amend. XIV.Show More For reasons that will soon become apparent, the last guarantee has fallen into practical desuetude. But that development was itself bizarre. “At the time of Reconstruction, the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights’”—precisely the sort of rights considered “fundamental” and “inalienable” and that had been “codifi[ed] in the Constitution’s text” via the Bill of Rights.114 114.McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).Show More

It was quite reasonable, then, for federal prosecutors in 1873 to have indicted several white-supremacist Democrats and Klansmen for deprivation of constitutional rights after they had murdered scores of Black militiamen outside a Louisiana courthouse.115 115.James Gray Pope, Snubbed Landmark: WhyUnited States v. Cruikshank (1876)Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).Show More The conspiracy and ensuing massacre had undeniably deprived the freedmen of their rights to assemble and bear arms. But in a stunning decision in March 1876, the Court reversed the Klansmen’s convictions.116 116.United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).Show More Building on its earlier Slaughter-House decision, the Court reasoned that assembly and carriage of arms could not be privileges or immunities stemming from United States citizenship, since those rights had preexisted the United States’ creation.117 117.Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.Show More Thus, their fundamental nature “was the very reason citizens could not enforce [them] against [the] States.”118 118.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More That conclusion likewise meant that none of the Bill of Rights was enforceable against the South, since all the rights guaranteed in the first nine amendments flowed from principles earlier than nationhood.119 119.Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).Show More So despite the Fourteenth Amendment’s plain and “established” terminology,120 120.McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).Show More the Court applied a construction that reduced its protections to a sliver. Amendment attempts in the 1880s to expand and restore civil rights failed,121 121.See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).Show More since much of the nation was no doubt pleased by the Court’s narrowing construction. (Indeed, white race-terrorists in the South celebrated the Cruikshank ruling by murdering several Black citizens and Republican officials.)122 122.Pope, supranote 115, at 412–13.Show More Later litigants would thus be forced to seek “selective incorporation” through the vehicle of “substantive” due process.123 123.See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).Show More The practical result is that even one-hundred-fifty years later, the Bill of Rights still does not fully apply to the states.124 124.The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.Show More

Conclusion

It is interesting to imagine how constitutional doctrine might have developed differently had the Chisholm model survived and the “People’s Court” of Article V sat in continuous judgment of Article III. For instance, as is sometimes said with regard to statutes,125 125.See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisisregime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).Show More we might believe that the People’s failure to overrule an innovative constitutional construction thus ratified it as a definitive gloss. As it turns out, however, modern realities could hardly sustain such a presumption. The amendment process is ossified, and given the realities of political polarization, judges enjoy functional finality in exposing constitutional meaning—even when their constructions are demonstrably erroneous.

The lack of a popular-constitutional check does not mean the situation is hopeless, of course. It just means that, in that check’s absence, restraint must come from the judiciary itself. Courts should endeavor to apply the Constitution’s original meaning—that to which the People agreed—rather than “extorting from precedents something” the Constitution “does not contain.”126 126.Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).Show More And they “should tread carefully before extending [those] precedents” that are dubious as an original matter.127 127.Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).Show More Only then are we bound by “the intention of the people,” rather than by the mere “intention of their agents.”128 128.The Federalist No. 78, supranote 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. SeeObergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).Show More

  1. * J.D., Virginia, 2020; M.St., Oxford, 2017; B.A., Vanderbilt, 2016. Special thanks to Andrew Nell and the other members of the Virginia Law Review editorial team who assisted with this piece, a version of which was fortunate enough to win the Law Review’s 2021 essay competition. Any errors, of course, are mine alone.
  2. The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
  3. Id.
  4. Id.
  5. See Essays of Brutus No. XII, N.Y.J., Feb. 7, 1788, reprinted in The Anti-Federalist Papers and the Constitutional Convention Debates 298 (Ralph Ketcham ed., 1986).
  6. Id. at 298–99.
  7. Id. at 299.
  8. Id.
  9. Id. at 299–300.
  10. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 159 (1999); see also Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 221 (1994) (arguing that authority to interpret the law is a shared power among the three branches).
  11. Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]he federal judiciary is supreme in the exposition of the law of the Constitution . . . . It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”).
  12. Id.
  13. Id.; see also U.S. Const. art. VI, cl. 2 (stating the same).
  14. U.S. Const. art. III, § 1.
  15. Id.
  16. Id. art. III, § 2.
  17. See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817, 834–38 (1994).
  18. U.S. Const. art. VI, cl. 2.
  19. Id.
  20. See, e.g., Larry Alexander & Frederick Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Comment. 455, 459–60 (2000).
  21. Id. at 457.
  22. Id. at 458.
  23. Hartnett, supra note 9, at 126–36. I take the phrase “opinion supremacy” from William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1845 (2008).
  24. Hartnett, supra note 9, at 159.
  25. See supra note 10.
  26. Hartnett, supra note 9, at 126.
  27. 2 U.S. (2 Dall.) 419 (1793).
  28. See U.S. Const. amend. XI.
  29. Chisholm, 2 U.S. (2 Dall.) at 430–31.
  30. 5 The Documentary History of the Supreme Court of the United States, 1789–1800, at 127 (Maeva Marcus et al. eds., 1994) [hereinafter DHSC].
  31. Id.
  32.  See Essays of Brutus No. XII, supra note 4, at 300 (predicting that courts would subordinate the Constitution’s text to its “spirit and reason” to reach policy-oriented outcomes).
  33. I will take a moment here to describe how I use the term “legitimacy” throughout—a usage informed by Professor Richard Fallon’s recent work on the topic. We can think of “legitimacy” in three different respects: legal, moral, and sociological. See Richard H. Fallon, Law and Legitimacy in the Supreme Court 21 (2018). Put simply, a decision is morally legitimate when it represents what ought to be done, while it is sociologically legitimate when it enjoys wide popular support. Id. The question of legal legitimacy is more complex, and I define it differently than does Professor Fallon. See id. at 49–51. In my view, legitimacy unfolds on a spectrum, and a constitutional decision is most legally legitimate when it both stems from originalist decision procedures and is substantively correct as an original matter. Ideally, of course, a decision would embody all three types of legitimacy—legal, moral, and sociological. But in practice, the three planes can diverge. A decision may be legally illegitimate and yet enjoy sociological legitimacy given its wide popular support. Indeed, that is how I conceptualize the “legitimacy gap”—when a decision is arguably or even clearly legally illegitimate and yet enjoys sufficient sociological legitimacy to prevent its repudiation. Additionally, I should clarify that legitimacy in my view differs from authority. There may be situations in which a rule of decision is legally illegitimate under the criteria I set out above and yet possibly we should still accept it as binding authority; the doctrine of stare decisis, for instance, seeks to explain when we should do so in the context of overruling precedent. See, e.g., Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (“[S]tare decisis has consequence only to the extent it sustains incorrect decisions . . . .”). Or, to give another example, a lower-court judge remains bound to apply indistinguishable Supreme Court precedent even when such precedent is indefensible as an original matter.
  34. Even ardent judicial supremacists acknowledge that judge-made “constitutional law” is distinct from the Constitution itself. See, e.g., Eric J. Segall, The Constitution Means What the Supreme Court Says It Means, 129 Harv. L. Rev. F. 176, 178 (2016).
  35. Robert Bork, The Tempting of America: The Political Seduction of the Law 140 (1990); see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 17, 22 (1997) (“It is simply not compatible with democratic theory that laws mean whatever they ought to mean, and that unelected judges decide what that is.”).
  36. U.S. Const. art. III, § 2, cl. 1.
  37. 2 U.S. (2 Dall.) 419, 430 (1793) (opinion of Iredell, J.); see also id. at 452 (opinion of Blair, J.).
  38. 5 DHSC, supra note 29, at 127.
  39. Id.
  40. Id.
  41. Id.
  42. Id. at 127–28.
  43. Id. at 128.
  44. Plea to the Jurisdiction, Chisholm ex rel. Farquhar v. Georgia, (C.C.D. Ga. Oct. 21, 1791), in 5 DHSC, supra note 29, at 143, 143.
  45. See 5 DHSC, supra note 29, at 130.
  46. Id. at 130 n.25.
  47. See Chisholm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 152.
  48. Id.
  49. Id. at 154.
  50. Id. at 153.
  51. U.S. Const. art. III, § 2, cl. 2.
  52. Chisolm ex rel. Farquhar v. Georgia (C.C.D. Ga. Oct. 21, 1791) (opinion of Iredell, J.), in 5 DHSC, supra note 29, at 148, 153.
  53. 5 DHSC, supra note 29, at 130–31.
  54. Id. at 131.
  55. Id. at 134.
  56. See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 419 (1793); see also id. at 432 (opinion of Iredell, J.); id. at 450 (opinion of Blair, J.); id. at 453 (opinion of Wilson, J.); id. at 467–68 (opinion of Cushing, J.); id. at 479 (opinion of Jay, C.J.).
  57. 5 DHSC, supra note 29, at 2.
  58. Id.
  59. Id. at 134.
  60. Id.
  61. Chisholm, 2 U.S. (2 Dall.) at 429.
  62. Id. at 430, 432 (opinion of Iredell, J.).
  63. Id. at 467 (opinion of Cushing, J.); id. at 476–77 (opinion of Jay, C.J.).
  64. Id. at 457–63 (opinion of Wilson, J.).
  65. 5 DHSC, supra note 29, at 4; accord James E. Pfander, History and State Suability: An “Explanatory” Account of the Eleventh Amendment, 83 Cornell L. Rev. 1269, 1278 (1998).
  66. Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1592–93 (2002).
  67. Id. at 1564.
  68. The Federalist No. 81, supra note 1, at 486 (Alexander Hamilton) (emphasis omitted).
  69. Nelson, supra note 65, at 1565–66. This is not to say that, inversely, states thus enjoyed constitutional immunity from all process in the federal courts. However repugnant suits against states by individuals might have been, subjecting states to process in other types of suits—such as those between states or between a state and the United States, at least so long as Congress established the requisite statutory jurisdiction over such disputes—seems to accord with the original design of Article III. See id. at 1631–32.
  70. See An Intemperate Resolution of Georgia, Am. Minerva, Jan. 15, 1794, reprinted in 5 DHSC, supra note 29, at 237, 238.
  71. See id.
  72. Id. (emphasis added).
  73. Letter from Edmund Pendelton to Nathaniel Pendleton (Aug. 10, 1793), reprinted in 5 DHSC, supra note 29, at 232, 232.
  74. Id. at 285–86.
  75.  See Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338; Proceedings of the Virginia Senate (Dec. 4, 1973), reprinted in 5 DHSC, supra note 29, at 339, 339. This Essay preserves historical sources’ original spelling.
  76. Id. at 339.
  77. 2 DHSC, supra note 29, at 338.
  78. Letter from John Adams to Charles Adams (Mar. 18, 1793), in The Adams Papers Digital Collection (Sara Martin ed., 2022), https://rotunda.upress.virginia.edu/founders/ADMS-04-09-02-0241 [https://perma.cc/39ST-E8KP].
  79. Id.
  80. Id.
  81. 2 DHSC, supra note 29.
  82. Proceedings of the Georgia House of Representatives, Augusta Chron., Nov. 9, 1793, reprinted in 5 DHSC, supra note 29, at 235, 235.
  83. Id.
  84. Proceedings of the Virginia House of Delegates (Nov. 28, 1793), reprinted in 5 DHSC, supra note 29, at 338, 338–39; Resolution of the Connecticut General Assembly (Oct. 29, 1793), reprinted in 5 DHSC, supra note 29, at 609, 609.
  85. See Report of a Joint Committee of the Massachusetts General Court, Indep. Chron., June 20, 1793, reprinted in 5 DHSC, supra note 29, at 230, 230.
  86. Id.
  87. Id. at 231.
  88. 4 Annals of Cong. 477 (1795).
  89. Id.; see also U.S. Const. amend. XI (stating the same).
  90. See Pfander, supra note 64, at 1271 n.5.
  91. Id.
  92.  Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Va. L. Rev. 1729, 1729 (2007).
  93. Pfander, supra note 64, at 1335–43.
  94. Id.
  95. See U.S. Const. amend. XIV (overruling Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); U.S. Const. amend. XVI (overruling Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895)); U.S. Const. amend. XIX (overruling Minor v. Happersett, 88 U.S. 162 (1875)); U.S. Const. amend. XXIV (overruling Breedlove v. Suttles, 302 U.S. 277 (1937)); U.S. Const. amend. XXVI (overruling Oregon v. Mitchell, 400 U.S. 112 (1970)).
  96. 376 U.S. 254 (1964).
  97. Dexter v. Spear, 7 F. Cas. 624, 624 (Story, Circuit Justice, C.C.R.I. 1825) (No. 3,867).
  98. Ronald A. Cass, Weighing Constitutional Anchors: New York Times Co. v. Sullivan and the Misdirection of First Amendment Doctrine, 12 First Amend. L. Rev. 399, 404–06 (2014).
  99. Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).
  100. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 766 (1985) (White, J., concurring in the judgment).
  101. Sullivan, 376 U.S. at 279–80.
  102.  McKee v. Cosby, 139 S. Ct. 675, 677 (2019) (Thomas, J., concurring in denial of certiorari).
  103. Curtis Publ’g Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).
  104. Dun & Bradstreet, Inc., 472 U.S. at 751.
  105. Id. at 771 (White, J., concurring in the judgment); see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 Yale L.J. Forum 708, 708 (2021). (noting “the Sullivan standard is almost impossible to satisfy”).
  106. Berisha v. Lawson, 141 S. Ct. 2424, 2424–25 (2019) (Thomas, J., dissenting from denial of certiorari); id. at 2426 (Gorsuch, J., dissenting from denial of certiorari).
  107. Jeremy Lewin, The Progressive Case for Libel Reform, Wall St. J. (Apr. 5, 2021), LUP5https://www.wsj.com/articles/the-progressive-case-for-libel-reform-11617638828?mo​d=article_inline [https://perma.cc/RPB9-LUP5]
  108. See, e.g., The Uninhibited Press, 50 Years Later, N.Y. Times (Mar. 8, 2014), https://www​.nytimes.com/2014/03/09/opinion/sunday/the-uninhibited-press-50-years-later.html [https://p​erma.cc/7XW7-2GMU].
  109. H.R.J. Res. 1285, 92nd Cong., 118 Cong. Rec. 27714 (1972).
  110. It is thus an example of the useful distinction Professor Stephen E. Sachs has drawn between “actual law” and “actual practice.” See Stephen E. Sachs, Law Within Limits: Judge Williams and the Constitution 3–9 (Geo. Mason Univ. Ctr. for Study Admin. State, Working Paper No. 21-36, 2021), https://administrativestate.gmu.edu/wp-content/uploads/sites/29/
    2021/09/Sachs-Law-Within-Limits.pdf [https://perma.cc/G8EB-7RV9]. We can think of “actual law,” on the one hand, as the Constitution itself and its original meaning as fixed at the time of its ratification, while we can think of “actual practice,” on the other, as the precedents of “constitutional law” that lawyers actually apply to litigate concrete cases. See id. These precedents are not the Constitution itself (and for that matter sometimes may be an egregious misinterpretation of it), but they nonetheless supply binding rules of decision that lower courts must apply in the actual practice of constitutional adjudication. See also William Baude & Stephen E. Sachs, Grounding Originalism, 113 Nw. Univ. L. Rev. 1455, 1472 (2019) (“Under our system’s rules of precedent, legal actors are sometimes commanded to follow a Supreme Court decision ‘as if’ it were the law—even as the underlying legal materials, which command ultimate authority, prescribe a different result. . . . This ‘as if’ law can be binding on particular actors without thereby becoming the law. . . .”).
  111. 92 U.S. 542 (1875).
  112. See U.S. Const. amend. XIII.
  113. See U.S. Const. amend. XV.
  114. U.S. Const. amend. XIV.
  115. McDonald v. Chicago, 561 U.S. 742, 813, 818 (2010) (Thomas, J., concurring in the judgment). For a recent exploration of this topic, see Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 176–78 (2021). Barnett and Bernick persuasively criticize the Slaughter-House Court’s “extremely narrow” and “bizarre” reading of the Privileges or Immunities Clause to cover only supposed rights of national citizenship rather than fundamental rights—such as those embodied in the Bill of Rights—more broadly. See id. at 174–78; see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 117–19 (1873) (asserting “privileges and immunities” can be found “in the original Constitution” and its “early amendments”).
  116. James Gray Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon, 49 Harv. Civ. Rts.-Civ. Liberties. L. Rev. 385, 387 (2014).
  117. United States v. Cruikshank, 92 U.S. 542, 556–57 (1875).
  118. Id. at 544, 551; see also Barnett & Bernick, supra note 114, at 181–84.
  119. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  120. Cruikshank, 92 U.S. at 551–52. I thus include the Ninth Amendment, though whichever rights it protects (and whether they are judicially enforceable) is the subject of longstanding debate. See, e.g., Troxel v. Granville, 530 U.S. 57, 91–93 (2000) (Scalia, J., dissenting).
  121. McDonald, 561 U.S. at 809 (Thomas, J., concurring in the judgment).
  122. See, e.g., H.R.J. Res. 92, 48th Cong., 15 Cong. Rec. 282 (1884).
  123. Pope, supra note 115, at 412–13.
  124. See, e.g., Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253, 253, 274 (1982).
  125. The Third Amendment, the Fifth Amendment’s grand-jury requirement, and the Seventh Amendment’s right to civil jury trials remain unincorporated. McDonald, 561 U.S. at 765 n.13.
  126. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1989). Whether a differential stare decisis regime for statutory precedents makes sense, I would note, is subject to dispute. See Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).
  127. Robert Rantoul, Oration at Scituate (July 4, 1836), in Kermit L. Hall, William M. Wiecek & Paul Finkelman, American Legal History 317, 318 (1991).
  128. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting).
  129. The Federalist No. 78, supra note 1, at 467 (Alexander Hamilton). I confess that in the context of this short essay, I cannot provide a comprehensive account of why originalism is the best interpretive system to achieve legal legitimacy. So, a couple of brief points will have to suffice instead. First, originalism treats as law the historical meaning of the Constitution—a factual and thus falsifiable claim—rather than the unfalsifiable intuitions of individual jurists. See Baude & Sachs, supra note 109, at 1458; see also William Baude, Is Originalism Our Law?, 115 Colum. L. Rev. 2349, 2363, 2398–99 (2015) (declaring originalism to be “meaningfully distinct” because it has “one methodology” and can be subject to “historical falsification.”). In this way, it of all systems most plausibly constrains constitutional interpretation. And second, the meaning to which such interpretation is bound is original public meaning—that to which the People as sovereign originally assented. See Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (“The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments.”). Originalism thus not only constrains (or, of competing systems, most plausibly constrains), but it constrains to that source of meaning with the most plausible claim to representing truly legitimate authority. See U.S. Const. pmbl. (“We the People of the United States, in Order to form a more perfect Union . . . .”); see also J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. __ (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4049069 [https://perma.cc/4782-UZWL] (recognizing “original meaning…is necessary to preserve the legitimate authority of the people….”).