Note

Partisan Emergencies

Executive emergency powers are tantalizingly effective. They allow presidents to bypass congressional gridlock, do away with procedural safeguards, and act decisively with minimal oversight. But there is a risk that these exceptional powers may become a norm of domestic governance. This Note theorizes a problem of “partisan emergencies,” declared by a president despite significant disagreement about the factual existence of an emergency. One example is President Trump’s declaration of an emergency after Congress refused to fund his border wall. Other examples stem from Democrats calling on President Biden to declare an emergency to address issues like climate change and reproductive health. Congress, initially relying on a legislative veto to terminate such declarations, must now muster a supermajority if it disagrees with them. At the heart of the scheme is the National Emergencies Act, outlining how a president can declare a “national emergency” and what powers he unlocks by doing so without imposing a definition of the term. This Note surveys the judiciary’s recent treatment of emergency powers, positing that while courts are willing to engage in means-ends review about how an executive uses emergency powers, they are not willing to engage in the factual question of whether an emergency exists at all. This Note then argues that the judiciary must be willing to engage with this question to effectively rein in dubious invocations of emergency power. To do so, the courts should treat the term “national emergency” as one capable of statutory interpretation, rather than one posing an intractable political question.

“[J]udicial deference in an emergency or a crisis does not mean wholesale judicial abdication.”1 1.Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 74 (2020) (Kavanaugh, J., concurring).Show More

Introduction

With partisan feuds at a high and congressional functionality at a low,2 2.Aaron Zitner, U.S. Grapples with Political Gridlock as Crises Mount, Wall St. J. (Oct. 11, 2023, 8:12 AM), https://www.wsj.com/politics/national-security/u-s-grapples-with-political-gridlock-as-crises-mount-be179aca.Show Moreit is tempting for presidents to rely heavily on executive power to implement their policy agendas. An effective way to do so is by declaring a national emergency, allowing a president to “trigger[] executive powers or relax[] otherwise applicable requirements or restrictions.”3 3.Jennifer K. Elsea, Jay B. Sykes, Joanna R. Lampe, Kevin M. Lewis & Bryan L. Adkins, Cong. Rsch. Serv., R46379, Emergency Authorities Under the National Emergencies Act, Stafford Act, and Public Health Service Act (2020), https://crsreports.congress.gov/product/p‌df/R/R46379 [https://perma.cc/V4KS-CMPV].Show MoreOne scholar describes declaring a national emergency as a “master key” that unlocks a treasure trove containing nearly 150 additional grants of statutory power.4 4.Mark P. Nevitt, Is Climate Change a National Emergency?, 55 U.C. Davis L. Rev. 591, 616 (2021).Show MorePresident Trump relied on the declaration of a national emergency to secure funding for a southern border wall after Congress refused to grant it.5 5.Proclamation No. 9844, 84 Fed. Reg. 4949, 4949 (Feb. 15, 2019).Show MoreIn subsequent years, some Democrats called on President Biden to declare a national emergency to circumvent congressional inaction on climate change, while others looked to emergency powers as a means of protecting abortion access in the wake of Dobbs v. Jackson Women’s Health Organization.6 6.Tarini Parti, Biden Is Pressed to Declare Emergencies After Climate, Abortion Setbacks, Wall St. J. (July 20, 2022, 4:12 PM), https://www.wsj.com/articles/biden-faces-pressure-to-d‌eclare-emergencies-after-climate-abortion-setbacks-11658318400; Myah Ward, Biden Faces Calls to Declare Climate Emergency as He Heads to Maui, Politico (Aug. 20, 2023, 7:00 AM), https://www.politico.com/news/2023/08/20/biden-climate-emergency-hawaii-00111973 [https://perma.cc/P8ZH-6BTS].Show MoreIndeed, President Biden did rely on the COVID-19 emergency declaration in his attempt to address the student loan debt crisis, before the Supreme Court rejected this use of power in Biden v. Nebraska.7 7.143 S. Ct. 2355 (2023).Show More

Presidential use of emergency power is not new. While the executive lacks explicit emergency authority under the Constitution,8 8.Saikrishna Bangalore Prakash, The Imbecilic Executive, 99 Va. L. Rev. 1361, 1391 (2013) (describing how Article II does not confer emergency authority, but instead creates an “impotent” executive who relies on statutory delegations of power).Show Morestatutory emergency powers have existed since the founding of the nation.9 9.See Examining Potential Reforms of Emergency Powers: Hearing Before the Subcomm. on the Const., C.R. & C.L. of the H. Comm. on the Judiciary, 117th Cong. 3 (2022) [hereinafter Potential Reforms of Emergency Powers Hearing] (statement of Elizabeth Goitein, Co-Director, Liberty and National Security Program, Brennan Center for Justice) (stating that “since the founding of the nation, Congress has been the primary source of the president’s emergency powers”).Show MoreThese powers are important and perhaps even essential for responding to complex crises in the modern age. And, in many ways, presidents have exercised restraint in their use of the broad swath of powers that are available to them—at least when it comes to domestic policy.10 10.See generally Declared National Emergencies Under the National Emergencies Act, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/declared-nat‌ional-emergencies-under-national-emergencies-act [https://perma.cc/Q32Y-J2VD] (last updated Mar. 14, 2025) (listing declared emergencies of which the vast majority have been in the international or foreign affairs context).Show MoreOf the eighty-seven states of national emergency that have been declared in the past forty-five-year period, all but eight were issued to impose economic sanctions on foreign actors under the International Emergency Economic Powers Act (“IEEPA”) or related sanctions laws.11 11.Id.Show MoreBut recent trends signal a risk that these exceptional powers may become a go-to strategy of domestic governance, particularly with the rise of what this Note conceptualizes as “partisan emergencies.”12 12.See Amy L. Stein, Domestic Emergency Pretexts, 98 Ind. L.J. 479, 479 (2023) (discussing the use of “questionable domestic emergencies to achieve unrelated policy goals”).Show More

The term “partisan emergency” refers to situations when presidents unilaterally declare an emergency despite significant disagreement along party lines over the most fundamental factual question: whether an emergency exists at all. President Trump’s declaration of a national emergency to fund the border wall, in the face of congressional opposition, marked a clear example of this. So too would any invocation of emergency powers to protect abortion access. These differ from the more traditional crises such as wars, pandemics, natural disasters, or other physical attacks on American interests, although the scope of even these traditional emergencies is not closed off from this debate.13 13.Cf. The Prize Cases, 67 U.S. (2 Black) 635 (1863) (involving parties’ dispute over what constitutes war and who gets to decide the existence of it).Show MoreIndeed the COVID-19 pandemic, at a certain point, could be categorized as a partisan emergency.14 14.J. Clinton, J. Cohen, J. Lapinski & M. Trussler, Partisan Pandemic: How Partisanship and Public Health Concerns Affect Individuals’ Social Mobility During COVID-19,Sci. Advances,Jan. 6, 2021, at 1, 1.Show MoreRecent decisions offer insight into the current philosophy of judicial review in times of crisis15 15.See generally Amanda L. Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, 109 Va. L. Rev. 489 (2023) (tracing the philosophy of judicial review over time with a helpful discussion on the recent pandemic years).Show Morebut leave open questions regarding the proper role for courts in policing executive overreach. The current discussion surrounding the issue of emergency declarations focuses exclusively on the need for Congress to step in.16 16.Congress has introduced bipartisan legislation to change the National Emergency Act to give it more teeth in limiting emergency declarations, but nothing has passed both houses to date. See, e.g., Limiting Emergency Powers Act of 2023, H.R. 121, 118th Cong.; ARTICLE ONE Act, S. 764, 116th Cong. (2019). A Senate hearing in May 2024 saw experts testify on the need for changes to the current statutory scheme. Restoring Congressional Oversight Over Emergency Powers: Exploring Options to Reform the National Emergencies Act: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affs., 118th Cong. (2024) [hereinafter Restoring Congressional Oversight Hearing]. Academic scholarship also centers on changes to the statutory scheme. See, e.g., GianCarlo Canaparo & Paul J. Larkin, Heritage Found., The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (2023); Samuel Weitzman, Back to Good: Restoring the National Emergencies Act, 54 Colum. J.L. & Soc. Probs. 365, 405 (2021); Stein, supra note 12, at 515.Show MoreThis Note provides an alternative ground to limit executive power in the event Congress is unable or unwilling to rise to the occasion, outlining why and how a court should approach the task of interpreting the term “national emergency” as used in the National Emergencies Act (“NEA”).

This Note proceeds in three Parts. Part I provides a high-level overview of emergency powers under the NEA and discusses why Congress is currently ill-equipped to respond to abuses of national emergency declarations. Part II turns to three distinct questions that courts can ask when reviewing an executive declaration of national emergency.17 17.This analytical framework mirrors that proposed in an amicus brief filed in Biden v. Nebraska. See Brief of Amicus Curiae the Protect Democracy Project in Support of Respondents, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (Nos. 22-506 & 22-535).Show MoreFirst, courts can ask whether an emergency existed at the time of invocation or whether it persisted at the time of the use of executive power. Second, courts can ask whether the means the executive used to respond to an emergency violate any constitutional restrictions, notably in the separation of powers or First Amendment realms. Finally, courts can ask whether the executive invoked emergency powers as a pretext to deal with an unrelated social problem. This Note argues that while courts have recently been more comfortable with and willing to ask the second question, they have shied away from asking the first and third questions—often invoking the political question doctrine to avoid them.18 18.See infra Part II.Show MoreWith this taxonomy in mind, Part III then advances the argument that being able to meaningfully engage with the factual existence of an emergency will be an important tool if Congress remains unable to rein in an active executive who invokes emergency powers for partisan reasons.

  1.  Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 74 (2020) (Kavanaugh, J., concurring). ↑
  2.  Aaron Zitner, U.S. Grapples with Political Gridlock as Crises Mount, Wall St. J. (Oct. 11, 2023, 8:12 AM), https://www.wsj.com/politics/national-security/u-s-grapples-with-political-gridlock-as-crises-mount-be179aca. ↑
  3.  Jennifer K. Elsea, Jay B. Sykes, Joanna R. Lampe, Kevin M. Lewis & Bryan L. Adkins, Cong. Rsch. Serv., R46379, Emergency Authorities Under the National Emergencies Act, Stafford Act, and Public Health Service Act (2020), https://crsreports.congress.gov/product/p‌df/R/R46379 [https://perma.cc/V4KS-CMPV]. ↑
  4.  Mark P. Nevitt, Is Climate Change a National Emergency?, 55 U.C. Davis L. Rev
    . 591, 616 (2021).

    ↑

  5.  Proclamation No. 9844, 84 Fed. Reg. 4949, 4949 (Feb. 15, 2019). ↑
  6.  Tarini Parti, Biden Is Pressed to Declare Emergencies After Climate, Abortion Setbacks, Wall St. J. (July 20, 2022, 4:12 PM), https://www.wsj.com/articles/biden-faces-pressure-to-d‌eclare-emergencies-after-climate-abortion-setbacks-11658318400; Myah Ward, Biden Faces Calls to Declare Climate Emergency as He Heads to Maui, Politico (Aug. 20, 2023, 7:00 AM), https://www.politico.com/news/2023/08/20/biden-climate-emergency-hawaii-00111973 [https://perma.cc/P8ZH-6BTS]. ↑
  7.  143 S. Ct. 2355 (2023). ↑
  8.  Saikrishna Bangalore Prakash, The Imbecilic Executive, 99 Va. L. Rev.

    1361, 1391 (2013) (describing how Article II does not confer emergency authority, but instead creates an “impotent” executive who relies on statutory delegations of power). ↑

  9.  See Examining Potential Reforms of Emergency Powers: Hearing Before the Subcomm. on the Const., C.R. & C.L. of the H. Comm. on the Judiciary, 117th Cong. 3 (2022) [hereinafter Potential Reforms of Emergency Powers Hearing] (statement of Elizabeth Goitein, Co-Director, Liberty and National Security Program, Brennan Center for Justice) (stating that “since the founding of the nation, Congress has been the primary source of the president’s emergency powers”). ↑
  10.  See generally Declared National Emergencies Under the National Emergencies Act, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/declared-nat‌ional-emergencies-under-national-emergencies-act [https://perma.cc/Q32Y-J2VD] (last updated Mar. 14, 2025) (listing declared emergencies of which the vast majority have been in the international or foreign affairs context). ↑
  11.  Id. ↑
  12.  See Amy L. Stein, Domestic Emergency Pretexts, 98 Ind. L.J. 479, 479 (2023) (discussing the use of “questionable domestic emergencies to achieve unrelated policy goals”). ↑
  13.  Cf. The Prize Cases, 67 U.S. (2 Black) 635 (1863) (involving parties’ dispute over what constitutes war and who gets to decide the existence of it). ↑
  14.  J. Clinton, J. Cohen, J. Lapinski & M. Trussler, Partisan Pandemic: How Partisanship and Public Health Concerns Affect Individuals’ Social Mobility During COVID-19, Sci. Advances,

    Jan. 6,

    2021

    , at 1, 1

    .

    ↑

  15.  See generally Amanda L. Tyler, Judicial Review in Times of Emergency: From the Founding Through the COVID-19 Pandemic, 109 Va. L. Rev.
    489 (2023) (

    tracing the philosophy of judicial review over time with a helpful discussion on the recent pandemic years)

    .

    ↑

  16.  Congress has introduced bipartisan legislation to change the National Emergency Act to give it more teeth in limiting emergency declarations, but nothing has passed both houses to date. See, e.g., Limiting Emergency Powers Act of 2023, H.R. 121, 118th Cong.; ARTICLE ONE Act, S. 764, 116th Cong. (2019). A Senate hearing in May 2024 saw experts testify on the need for changes to the current statutory scheme. Restoring Congressional Oversight Over Emergency Powers: Exploring Options to Reform the National Emergencies Act: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affs., 118th Cong. (2024) [hereinafter Restoring Congressional Oversight Hearing]. Academic scholarship also centers on changes to the statutory scheme. See, e.g., GianCarlo Canaparo & Paul J. Larkin, Heritage Found
    .,

    The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (

    2023);

    Samuel Weitzman, Back to Good: Restoring the National Emergencies Act, 54 Colum. J.L. & Soc. Probs.

    365, 405 (2021);

    Stein, supra note 12, at 515. ↑

  17.  This analytical framework mirrors that proposed in an amicus brief filed in Biden v. Nebraska. See Brief of Amicus Curiae the Protect Democracy Project in Support of Respondents, Biden v. Nebraska, 143 S. Ct. 2355 (2023) (Nos. 22-506 & 22-535). ↑

  18.  See infra Part II. ↑

Constraining Legislative Expulsion

Every U.S. legislature, from the U.S. Congress to all fifty state legislatures, possesses the constitutional power to expel a member, a power that originated in English Parliament. As recently illustrated by the expulsions of two Tennessee legislators, however, this power may conflict with other constitutional rights of legislators and their constituents. This Note explores the tension between the constitutional power to expel and the constitutional rights of legislators and their constituents. In doing this, the Note responds to gaps in legal scholarship surrounding expulsion’s historical, legal, and theoretical dimensions. Most significantly, scholars have not comprehensively examined state constitutional powers of expulsion. While historical practice and precedent suggest that some bases for expulsion are unconstitutional, courts—whether ruling on the merits or eschewing political questions—have upheld legislative expulsions in almost every case. The Note argues that this dynamic is evidence of a right-remedy gap that threatens the vindication of constitutional rights. Given significant barriers to judicial relief, this Note argues that legislatures must reform their powers of expulsion—voluntarily or in response to citizen advocacy. Additionally, litigants should test a narrow avenue left open by recent Supreme Court precedent. With one-party supermajorities near their most numerous in modern American history, making expulsion more feasible, reform is urgently needed to prevent irremediable constitutional violations and to uphold the integrity of the democratic process.

Introduction

On the morning of March 27, 2023, a shooter killed three nine-year-old children and three staff members at the Covenant School in Nashville, Tennessee.1 1.Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenan‌t‌-dea‌d‌ly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8].Show More In the months following, parents of the victims,2 2.Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html.Show More thousands of Nashville-area students,3 3.Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.‌org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-pr‌otest-gun-safety/ [https://perma.cc/LPL3-2JJM].Show More and a sizeable, bipartisan coalition of Tennesseans4 4.Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://pe‌rma.cc‌/5Y9U-N4S2].Show More expressed support for various gun reforms intended to prevent another attack. After a special session devoted to such reforms, all major legislative proposals failed in Tennessee’s General Assembly, with only modest bills aimed at mental health and security resources passing.5 5.Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-s‌ession-gun-control.html.Show More Amidst this painfully familiar pattern of American political history, something unprecedented occurred. Days after the shooting, Tennessee Representatives Gloria Johnson, Justin Jones, and Justin Pearson gathered in the heart of the Tennessee House chamber from 10:49 AM until 11:42 AM and “shouted, pounded on the podium, led chants with citizens in the gallery, and generally engaged in disorderly and disruptive conduct, including refusing to leave the well, sitting on the podium, and utilizing a sign displaying a political message” to advocate for gun law reforms.6 6.H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com‌/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-S‌GRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”).Show More Representatives Jones and Pearson also “used a bullhorn to amplify their protestations.”7 7.Tenn. H.R. 65.Show More For these acts, House Republicans filed three nearly identical resolutions to remove the Democratic lawmakers from office.8 8.Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors.Show More

After six hours of proceedings on the House floor, the legislature voted to expel Representatives Jones (72-25) and Pearson (69-26), both of whom are Black men under the age of thirty, while voting not to expel Representative Johnson (65-30), who is a white woman in her sixties.9 9.Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennes‌seelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-de‌spite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&g‌a‌=‌113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0‌063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?B‌ill‌Nu‌mber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/‌a‌p‌p‌s/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024).Show More Apart from recognizing Representatives Jones’s and Pearson’s use of a bullhorn, the expulsion resolutions did not distinguish among the legislators’ alleged conduct.10 10.Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63.Show More During his expulsion hearing, Representative Pearson stated: “I take full accountability and responsibility for my actions . . . [but] there was in no world or way that I thought that would lead to us being expelled from this House that we got elected into by our constituents. . . . That is antidemocratic.”11 11.Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=3089‌4s [https://perma.cc/KMJ2-4249].Show More President Joe Biden called Pearson’s expulsion “shocking” and “undemocratic.”12 12.Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf.Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn‌-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion).Show More

When asked why he voted to expel Representatives Pearson and Jones but flipped his vote in favor of Representative Johnson, one House Republican explained:

I’m an attorney, and Ms. Johnson was the only representative that showed up with legal counsel. And their legal counsel made an opening statement, pointing out deficiencies in the resolution that had been filed that we were voting on. And once those deficiencies were pointed out, in my view as an attorney, then it was incumbent upon the debate to present evidence to correct that and to establish clearly what it was that Ms. Johnson did to rise to the level of expulsion. I just don’t think that we established that during the debate.13 13.Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson).Show More

In a leaked tape recording of the House Republicans’ caucus meeting after the expulsion votes, Representative Jason Zachary said: “I don’t want to hear why there wasn’t preponderance of the evidence as an attorney—I need to know why you flipped your vote at the last minute.”14 14.Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-law‌makers/.Show More

Following their expulsions, Representatives Pearson and Jones were reinstated to their seats within a week.15 15.Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP, NPR(Apr. 12, 2023, 2:46 PM), https://www.npr.org/202‌3/0‌4‌/‌12/1169444850/justin-pea‌rson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG‌4M].Show More Despite their prompt returns, the expulsions temporarily nullified roughly 10,000 combined votes cast for the representatives, were projected to incur taxpayer expenses exceeding $475,000, and disrupted Representatives Pearson’s and Jones’s committee assignments.16 16.Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://‌perma.‌cc/WZ35-PAQL].Show More Only Representative Jones raised constitutional challenges to the General Assembly’s actions, though his suit remains in a preliminary posture as of early 2025.17 17.Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024).Show More

The U.S. Constitution18 18.U.S. Const. art. I, § 5, cl. 2.Show More and every state constitution19 19.Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions.Show More empower legislatures to remove duly elected members, temporarily depriving constituents of their democratic representation. American legislatures have rarely exercised this power.20 20.Todd Garvey, Cong. Rsch. Serv., R45078, Expulsion of Members of Congress: Legal Authority and Historical Practice 4, 9 (2023).Show More When they have, legislators have been puzzled by expulsion’s obscurity and its inherent constitutional tensions.21 21.See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators).Show More Even against such sparse precedent, the Tennessee legislature’s 2023 expulsion votes raised new constitutional questions that were previously relegated to hypotheticals22 22.Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”).Show More and dicta,23 23.Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion).Show More provoking a national reckoning with an unfamiliar legislative power. That reckoning continued months later with the historic removal of Congressman George Santos for his financial misdeeds.24 24.Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expu‌lsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted).Show More Urgent questions that implicate democratic principles of representation, due process, and free expression remain unresolved. What constitutional rules govern expulsion proceedings? Are there any constraints on a legislature’s expulsion power when the grounds for expulsion implicate constitutional rights?

Despite the urgency of these foundational questions, expulsion scholarship has remained frozen in time. As recently as 2022, the Supreme Court cited as authoritative a 1978 article on expulsion’s early history—a study authored nearly fifty years ago without the benefit of digital archival research.25 25.See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22.Show More Recent federal cases have explored the boundaries of expulsion law, yet they have not been scrutinized by the Congressional Research Service—a key resource for legislators.26 26.See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law).Show More Scholars have also examined the federal expulsion power in isolation, despite the fact that most expulsions arise under state constitutions rather than under the U.S. Constitution.27 27.See, e.g., id.;Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/‌research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ].Show More Scholarship has yet to comprehensively examine state expulsion powers even while the Supreme Court has emphasized the centrality of state law in Dobbs v. Jackson Women’s Health Organization28 28.142 S. Ct. 2228, 2242, 2256 (2022).Show More and Whole Woman’s Health v. Jackson.29 29.142 S. Ct. 522, 537–38 (2021).Show More In short, legal scholarship offered precious little in response to the Tennessee Three and the incident’s constitutional questions.

This Note offers a modern synthesis of expulsion’s historical, legal, and theoretical dimensions. Part I retraces the historical roots of expulsion from English Parliament through the Founding Era, uncovering previously unexamined perspectives on expulsion from James Madison, Alexander Hamilton, and Abigail Adams.30 30.The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text.Show More With the advent of digital archival tools, these Founding Era sources enrich our understanding and recontextualize Dorian and Judith F. Bowman’s 1978 account. This Part also provides a comprehensive analysis of state expulsion provisions, filling a gap in the literature and highlighting the importance of state-level practices where most expulsions occur.31 31.See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions.Show More

Part II surveys judicial review of expulsions, including recent federal case law examining constitutional challenges to expulsion (and similar procedures).32 32.Most notably, this includes Houston Community College System v. Wilson,142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022).Show More This Part demonstrates that judicial review is ill-equipped to address the sort of constitutional issues raised by the Tennessee Three, exposing a gap between constitutional rights and judicial remedies for their violation that requires further scholarly attention.33 33.See infra note 178 and accompanying text.Show More Part III proposes specific reforms to prevent antidemocratic abuses of the expulsion power, including legislative amendments and claims-making in the First Amendment retaliation context, which appears ripe for challenge following the Supreme Court’s ruling in Houston Community College System v. Wilson.34 34.142 S. Ct. 1253.Show More

While this Note does not purport to definitively resolve all the complex constitutional questions surrounding expulsion, it takes a critical step forward by offering historical insights, exposing current legal deficiencies, and charting a path for future research and reform efforts. Taken as a whole, this Note calls attention to an understudied topic of foundational importance to American democracy. Expulsion matters because it has the potential to censor the political process, alter legislative outcomes, and deprive citizens of democratic representation. Although the mine-run of expulsions involving criminal convictions may not appear facially unconstitutional, the Tennessee Three incident suggests that when constitutional issues do emerge in the expulsion context, they raise significant right-remedy gaps.35 35.See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies).Show More Without additional guardrails to uphold the constitutional rights of legislators and their constituents, the expulsion power may be exploited for antidemocratic purposes. That risk of exploitation appears even greater today, when one-party supermajorities are near their most numerous in modern American history, making expulsion more feasible.36 36.See infra notes 207–08 and accompanying text.Show More

  1.  Cries for Covenant: Deadly Mass Shooting Hits Nashville, The Tennessean (May 18, 2023, 11:59 AM), https://www.tennessean.com/in-depth/news/2023/05/18/cries-for-covenan‌t‌-dea‌d‌ly-mass-shooting-hits-nashville/70204202007/ [https://perma.cc/ULP3-H9B8]. ↑
  2.  Emily Cochrane, The Covenant Parents Aren’t Going to Keep Quiet on Guns, N.Y. Times (Dec. 26, 2023), https://www.nytimes.com/2023/12/26/us/politics/nashville-school-shooting-covenant-parents.html. ↑
  3.  Marta W. Aldrich, Nashville Students Rally for Tougher Gun Laws, As Governor Seeks Armed Guards for Every School, Chalkbeat (Apr. 3, 2023, 7:12 PM), https://www.chalkbeat.‌org/tennessee/2023/4/3/23668031/nashville-school-shooting-walkout-march-lives-capitol-pr‌otest-gun-safety/ [https://perma.cc/LPL3-2JJM]. ↑
  4.  Vanderbilt Poll: State Legislature’s Approval Remains Low; Bipartisan Support for Abortion Exceptions, Gun Safety Laws; More, Vanderbilt Univ. (Dec. 14, 2023, 6:00 AM), https://news.vanderbilt.edu/2023/12/14/vanderbilt-poll-tennessee-december-2023/ [https://pe‌rma.cc‌/5Y9U-N4S2]. ↑
  5.  Emily Cochrane, Tennessee Session Ends in Chaos, With No Action on Gun Control, N.Y. Times (Aug. 29, 2023), https://www.nytimes.com/2023/08/29/us/politics/tennessee-special-s‌ession-gun-control.html. ↑
  6.  H.R. 65, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); see also Melissa Alonso & Dakin Andone, Tennessee House Republicans Take Steps to Remove Democratic Lawmakers After They Joined Gun Control Protest, CNN (Apr. 4, 2023, 10:20 PM), https://www.cnn.com‌/2023/04/04/us/tennessee-reps-expulsion-gun-control/index.html [https://perma.cc/WNQ5-S‌GRW] (noting Representative Sam McKenzie’s view that this “political retribution is unconstitutional”). ↑
  7.  Tenn. H.R. 65. ↑
  8.  Id.; H.R. 64, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); H.R. 63, 113th Gen. Assemb., 1st Reg. Sess. (Tenn. 2023); Alonso & Andone, supra note 6. Only the representatives’ names, pronouns, legislative districts, and home counties differ among the three resolutions, along with the resolutions’ sponsors. ↑
  9.  Adam Friedman, ‘An Abomination:’ TN House Expels Two Dems Over Gun Protest, Despite Removal Looking Temporary, Tenn. Lookout (Apr. 7, 2023, 8:56 AM), https://tennes‌seelookout.com/2023/04/07/an-abomination-tn-house-expels-two-dems-over-gun-protest-de‌spite-removal-looking-temporary/ [https://perma.cc/GUW9-TD3K]; Tenn. Gen. Assemb., HR 0065, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=HR0065&g‌a‌=‌113 [https://perma.cc/7E27-GUMJ] (last visited Jan. 7, 2025) (Rep. Jones); Tenn. Gen. Assemb., HR 0063, https://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=HR0‌063&GA=113 [https://perma.cc/RC4C-AEY4] (last visited Jan. 7, 2025) (Rep. Pearson); Tenn. Gen. Assemb., HR 0064, https://wapp.capitol.tn.gov/apps/Billinfo/default.aspx?B‌ill‌Nu‌mber=HR0064&ga=112 [https://perma.cc/A5CW-CR2V] (last visited Jan. 7, 2025) (Rep. Johnson); Representative Justin J. Pearson, Tenn. Gen. Assemb., https://wapp.capitol.tn.gov/‌a‌p‌p‌s/legislatorinfo/member.aspx?district=h86 [https://perma.cc/3QKK-6A8U] (last visited Oct. 11, 2024). ↑
  10.  Tenn. H.R. 65; Tenn. H.R. 64; Tenn. H.R. 63. ↑
  11.  Tennessee House of Representatives, House Floor Session 21st Legislative Day—April 6, 2023, YouTube (Apr. 6, 2023) (statement of Rep. Pearson), at 9:21:00–9:21:36, https://www.youtube.com/live/ZZK–_x3gIU?t=3089‌4s [https://perma.cc/KMJ2-4249]. ↑
  12.  Chris Megerian, Aamer Madhani & Josh Boak, Biden Thanks ‘Tennessee Three’ for ‘Standing Up,’ Associated Press (Apr. 24, 2023, 6:07 PM), https://apnews.com/article/biden-tennessee-three-lawmakers-pearson-jones-johnson-bb74e4bdb9628d53d64d13acf004248c; cf. Editorial, The Tennessee Bullhorn Isn’t Democracy, Wall St. J. (Apr. 19, 2023, 6:45 PM), https://www.wsj.com/articles/tennessee-justin-jones-justin-pearson-bullhorn‌-biden-white-house-chuck-schumer-gun-control-b9a4d4f5 (arguing that the conduct of the Tennessee Three was sufficiently disruptive to justify expulsion). ↑
  13.  Erika Ryan, Patrick Jarenwattananon & Mary Louise Kelly, Tennessee GOP Rep. Barrett on Why He Voted to Expel Two Colleagues But Not the Third, NPR (Apr. 7, 2023, 5:24 PM), https://www.npr.org/2023/04/07/1168728769/tennessee-gop-rep-barrett-on-why-he-voted-to-expel-two-colleagues-but-not-the-th [https://perma.cc/K7R9-VTZY]; see also Tenn. H.R. 64 (proposed resolution expelling Rep. Johnson). ↑
  14.  Cheyanne M. Daniels, Leaked Audio Shows Tennessee GOP Infighting Over Expulsion of Black Lawmakers, The Hill (Apr. 14, 2023, 3:59 PM), https://thehill.com/homenews/state-watch/3951196-leaked-audio-shows-tennessee-gop-infighting-over-expulsion-of-black-law‌makers/. ↑
  15.  Bill Chappell & Katie Riordan, Both Black Tennessee Lawmakers Have Been Reinstated After Being Expelled by GOP,
    NPR

    (Apr. 12, 2023, 2:46 PM), https://www.npr.org/202‌3/0‌4‌/‌12/1169444850/justin-pea‌rson-vote-memphis-tennessee-house [https://perma.cc/BAZ4-BG‌4M]. ↑

  16.  Sam Stockard, Special Elections for Three Seats Could Hit $570,000, Tenn. Lookout (Apr. 27, 2023, 10:35 AM), https://tennesseelookout.com/2023/04/27/special-elections-for-three-seats-could-hit-570000/ [https://perma.cc/SFL5-6ANK]; see infra note 186 (indicating that Representatives Jones and Pearson earned 9,831 combined votes); see also Nadine Yousif, Brandon Drenon & Melisa Goh, Lawmakers Expelled: What to Know About the ‘Tennessee Three,’ BBC (Apr. 7, 2023), https://www.bbc.com/news/world-us-canada-65182502 [https://‌perma.‌cc/WZ35-PAQL]. ↑
  17.  Jones v. Sexton, No. 23-cv-01033, 2024 WL 4631658, at *1 (M.D. Tenn. Oct. 30, 2024). ↑
  18.  U.S. Const. art. I, § 5, cl. 2. ↑
  19.  Although Massachusetts, New Hampshire, New York, North Carolina, and South Dakota lack constitutional expulsion provisions, courts have interpreted other provisions to impliedly confer the power to expel. See Hiss v. Bartlett, 69 Mass. (3 Gray) 468 (1855); Horton v. McLaughlin, 821 A.2d 947 (N.H. 2003); Monserrate v. N.Y. State Senate, 599 F.3d 148 (2d Cir. 2010); Alexander v. Pharr, 103 S.E. 8 (N.C. 1920); Gray v. Gienapp, 2007 SD 12, 727 N.W.2d 808; see also infra Appendix: State Constitutional Expulsion Provisions. ↑
  20.  Todd Garvey, Cong. Rsch. Serv.,
    R45078

    , Expulsion of Members of Congress: Legal Authority and Historical Practice

    4, 9

    (2023). ↑

  21.  See, e.g., Investigation of Sen. Joseph R. McCarthy: Hearings on S.R. 187 Before the Subcomm. on Privileges & Elections of the S. Comm. on Rules & Admin., 82d Cong. 62 (1952) [hereinafter McCarthy Hearing] (statement of Sen. William Benton) (explaining that the Senate “is not an investigating body” and identifying the need for “procedure, in the form of a committee” to pursue expulsion charges); see also, e.g., Cong. Globe, 37th Cong., 2d Sess. 969–70 (1862) (statement of Sen. John Sherman) (debating the procedure and scope of expulsion with other Senators). ↑
  22.  Monserrate v. N.Y. State Senate, 695 F. Supp. 2d 80, 92 (S.D.N.Y. 2010) (describing “hypothetical worst-case scenarios of the misuse of the expulsion power to discriminate against racial, ethnic, and political minorities”), aff’d, 599 F.3d 148 (2d Cir. 2010); see also Expulsion of House Member for Conduct Pre-Dating Election, Tenn. Att’y Gen. Op. No. 19-20, at 5 (2019) (observing that “the equal protection guarantees of Tennessee and U.S. Constitutions would prevent racially discriminatory expulsion decisions”). ↑
  23.  Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1263–64 (2022) (reserving the question of a First Amendment retaliation claim in the context of legislative expulsion). ↑
  24.  Michael Gold & Grace Ashford, George Santos Is Kicked Out of Congress in a Historic Vote, N.Y. Times (Dec. 1, 2023), http://www.nytimes.com/2023/12/01/nyregion/santos-expu‌lsion-vote-congress.html; H.R. Res. 878, 118th Cong., 169 Cong. Rec. H6062–63 (daily ed. Dec. 1, 2023) (enacted). ↑
  25.  See Dorian Bowman & Judith Farris Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev
    .

    1071 (1978); Wilson, 142 S. Ct. at 1259 (citing Bowman & Bowman, supra); Garvey, supra note 20, at 3 n.22. ↑

  26.  See, e.g., Garvey, supra note 20, at 5–7 (discussing predominately early to mid-twentieth century case law). ↑
  27.  See, e.g., id.; Robyn Sanders & Andrew Garber, The Unconstitutional Expulsion of Legislators, Brennan Ctr. for Just. (May 25, 2023), https://www.brennancenter.org/our-work/‌research-reports/unconstitutional-expulsion-legislators [https://perma.cc/6ZX4-9RWQ]. ↑
  28.  142 S. Ct. 2228, 2242, 2256 (2022). ↑
  29.  142 S. Ct. 522, 537–38 (2021). ↑
  30.  The author is unaware of any expulsion scholarship to date that examines James Madison’s reflections on French expulsion, Alexander Hamilton’s proposal to abolish expulsion, Abigail Adams’s reflections on partisan expulsion, or various Anti-Federalist concerns about the Constitution’s expulsion power. See infra notes 58, 61, 65, 66, 67, 87 and accompanying text. ↑
  31.  See infra notes 70, 72–74 and accompanying text; Appendix: State Constitutional Expulsion Provisions. ↑
  32.  Most notably, this includes Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022). The author is unaware of expulsion scholarship evaluating other recent federal opinions such as Hernandez v. Oregon Legislature, 521 F. Supp. 3d 1025 (D. Or. 2021), or Shooter v. Arizona, 4 F.4th 955 (9th Cir. 2021), cert. denied, 142 S. Ct. 898 (2022). ↑
  33.  See infra note 178 and accompanying text. ↑
  34.  142 S. Ct. 1253. ↑
  35.  See generally John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87 (1999) (discussing this term and the shortfall between the goals of rights and the realities of implemented remedies). ↑

  36.  See infra notes 207–08 and accompanying text. ↑

Sovereigns’ Interests and Double Jeopardy

In the 2019 case of Gamble v. United States, the Supreme Court upheld the dual sovereignty doctrine, reiterating that the Double Jeopardy Clause only bars successive or concurrent prosecutions by the same sovereign. When, therefore, a criminal defendant has violated the laws of two sovereigns by the same act, regardless of how similar those laws may be, no double jeopardy issue arises where both sovereigns prosecute the defendant independently. This Note argues that such an outcome is at odds with the Due Process Clause’s guarantee against double jeopardy and rests upon an excessively rigid formulation of prior case law. The Supreme Court’s double jeopardy jurisprudence actually suggests that the dual sovereignty doctrine should only be applied in instances where each sovereign possesses a distinct interest that they alone can vindicate. This Note advances a primary-purposes test to determine when separate or concurrent prosecutions are appropriate: a second sovereign should only be permitted to prosecute a defendant for the same crime if the primary purpose of that prosecution is to vindicate a sovereign interest that the first sovereign’s prosecution would leave substantially unvindicated. Applying this test would also ease the Gamble Court’s worry that modifying the doctrine could interfere with the balance of domestic and international prosecutions. Because the United States and a foreign sovereign, as completely independent entities, could always decline to treat the exercise of the other’s jurisdiction as exclusive, each sovereign would retain an interest in prosecuting a defendant that the other sovereign could never substantially vindicate.

Introduction

In the 1969 case of Benton v. Maryland, the Supreme Court of the United States held that the Fifth Amendment’s guarantee against double jeopardy, that “[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb,”1 1.U.S. Const. amend. V.Show More formed a fundamental right that was incorporated by the Fourteenth Amendment’s Due Process Clause against the states.2 2.395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”).Show More In so doing, the Supreme Court reversed its earlier decision in Palko v. Connecticut, which had held that the Double Jeopardy Clause was not incorporated against the states, inasmuch as the protection was not “of the very essence of a scheme of ordered liberty.”3 3.302 U.S. 319, 325 (1937).Show More In spite of Benton, however, the Supreme Court has regularly upheld one glaring exception to the Double Jeopardy Clause: the dual sovereignty doctrine.

Under the dual sovereignty doctrine, a defendant may be prosecuted twice for the same crime if separate sovereigns are involved in bringing each prosecution. Although the circumstances under which two entities constitute separate sovereigns may not be clear-cut as a philosophical matter, for purposes of dual sovereignty, the Supreme Court has made clear that the states and the federal government are considered distinct sovereigns,4 4.See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”).Show More as are Native American tribes.5 5.United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions).Show More Territories such as Puerto Rico, however, are not.6 6.Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes).Show More A hypothetical defendant could thus be subject to all criminal jurisdictions within the United States, assuming that a jurisdictional hook connects the defendant’s conduct and each of the respective sovereigns. The possibility of these concurrent or subsequent prosecutions militates against a common-sense understanding of what the Double Jeopardy Clause would seem to require. Nevertheless, the Supreme Court has repeatedly upheld the constitutionality of the dual sovereignty doctrine, and it has done so most recently in the 2019 case of Gamble v. United States.7 7.139 S. Ct. 1960, 1979–80 (2019).Show More

This Note argues that the dual sovereignty doctrine, in its current formulation as expressed in Gamble, unconstitutionally infringes upon defendants’ due process rights. First, this Note argues that a close reading of the case law upon which the Gamble Court relies implies a more flexible construction of the dual sovereignty doctrine and that the doctrine should only come into play when separate prosecutions vindicate distinct sovereign interests. Moreover, the doctrine should be reinterpreted following both the ratification of the Fourteenth Amendment and the 1969 Benton decision incorporating the Double Jeopardy Clause through the Due Process Clause—something for which the Court has not properly accounted. Second, this Note examines an argument by the majority relating to prosecutions by international foreign sovereigns to demonstrate that the majority misunderstands the concept of sovereignty. The majority’s reinterpretation of the dual sovereignty doctrine should not ipso facto alter the effect that foreign criminal proceedings may have on domestic ones. Finally, this Note proposes a “primary-purposes” balancing test, which would protect defendants’ due process rights against double jeopardy while simultaneously carving out a constitutionally permissible space for instances where subsequent prosecution by another sovereign may remain legitimate and desirable. This Note conducts a substantial-interest analysis8 8.This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental.Show More with respect to the dual sovereignty doctrine and proposes a test that would resolve the applicability of the doctrine with respect to both domestic and foreign sovereigns.9 9.The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test.Show More

  1.  U.S. Const. amend. V. ↑
  2.  395 U.S. 784, 794 (1969) (“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”). ↑
  3.  302 U.S. 319, 325 (1937). ↑
  4.  See, e.g., Bartkus v. Illinois, 359 U.S. 121, 132–34 (1959) (finding no double jeopardy bar to successive state and federal prosecutions as a result of the “two-sovereignty principle”); Heath v. Alabama, 474 U.S. 82, 89 (1985) (“The States are no less sovereign with respect to each other than they are with respect to the Federal Government.”). ↑
  5.  United States v. Lara, 541 U.S. 193, 210 (2004) (holding that because the “inherent tribal authority[] to prosecute nonmember Indians” does “not amount to an exercise of federal power,” tribes are acting as “separate sovereign[s]” for Fifth Amendment purposes during such prosecutions). ↑
  6.  Puerto Rico v. Sanchez Valle, 579 U.S. 59, 78 (2016) (holding that “[b]ecause the ultimate source of Puerto Rico’s prosecutorial power is the Federal Government . . . the Commonwealth and the United States are not separate sovereigns” for Fifth Amendment purposes). ↑
  7.  139 S. Ct. 1960, 1979–80 (2019). ↑
  8.  This term may be familiar from choice-of-law theory, as it describes an analytical method “in which courts identify those states with interests in a particular issue before the court and then determine which of the competing states should have its law applied to the issue. The court makes that determination by identifying the state with the greatest interest in the matter.” John Bernard Corr, Interest Analysis and Choice of Law: The Dubious Dominance of Domicile, 1983 Utah L. Rev. 651, 653 n.10. This Note advances a somewhat analogous argument in the Double Jeopardy context, namely: when two or more separate domestic sovereigns have jurisdiction over a matter, the sovereign whose interest is primarily at stake should proceed with the prosecution, and only when that sovereign, in its own proceeding, cannot substantially vindicate the interest of the other(s), should subsequent or concurrent prosecutions proceed without running afoul of the Double Jeopardy and Due Process Clauses. Otherwise, any resemblance between this Note’s use of this term here and its use in a choice-of-law context is only coincidental. ↑

  9.  The Ohio Northern University Law Review published a short piece on Gamble that briefly suggested the applicability of an interest-analysis and the possible use of a balancing test in resolving the constitutional problems associated with the dual sovereignty doctrine. Alexander S. Prillaman, Student Case Notes, Gamble v. United States, 46 Ohio N.U. L. Rev. 181, 192–93 (2020). This Note, however, analyzes in significantly greater detail the prior case law upon which Gamble relies, discusses the consequences of the incorporation of the Double Jeopardy Clause, and examines the effects of a possible modification of the dual sovereignty doctrine vis-à-vis foreign (international) sovereign proceedings both to flesh out the possibility of a balancing test and to ground the suggestion more firmly in the broader jurisprudential principles and normative desirability of such a test. ↑

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