Note

Vagueness and Nondelegation

The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression to this link by speaking of the doctrines using nearly identical vocabulary. Notably, Justice Gorsuch suggested that as the nondelegation doctrine waned during the second half of the twentieth century, vagueness replaced it,—doing much of the doctrinal work that nondelegation would have done otherwise.

This Note tests that historical claim, and in doing so, offers two main contributions. First, it concludes that as a historical matter, Justice Gorsuch tells only part of the story. Although early vagueness doctrine in the late 1800s had strong streaks of nondelegation, vagueness doctrine of the post-New Deal era did not. The latter vagueness instead turned toward protecting individual rights and preventing racial discrimination by state and local governments. Here, nondelegation concerns were absent.

But the Roberts Court has rebooted the early vagueness doctrine that did indeed incorporate nondelegation. Modern vagueness cases thus resemble early vagueness cases. In these cases, absent are questions of individual rights, replaced by a focus on the separation of powers. In effect, there are two vagueness doctrines, one focused on individual rights and another centered around the separation of powers. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

“[O]nce we lift the veil of the void-for-vagueness doctrine, the revelations can be far reaching.”1 1.Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights, 62 Stan. L. Rev. 1361, 1387 (2010).Show More

Introduction

Suppose Congress enacts a statute that reads as follows: “Any person engaging in morally blameworthy conduct or lacking good moral character shall be punished as provided by this Code.” Is this statute unconstitutional? If so, why? Is it because of the void-for-vagueness doctrine, under which vague criminal laws violate the Constitution’s due process protections? Or is it because of the nondelegation doctrine, under which Congress cannot delegate its Article I legislative power to the executive and judicial branches through unintelligible statutes?

Or is it both?

In three recent U.S. Supreme Court cases, decided within a year of each other, these two relatively dormant doctrines—vagueness and nondelegation—simultaneously reemerged. In United States v. Davis2 2.139 S. Ct. 2319, 2336 (2019).Show More and Sessions v. Dimaya,3 3.138 S. Ct. 1204, 1223 (2018).Show More the Court struck down provisions in the federal criminal code as void for vagueness, while in Gundy v. United States, the Court addressed a nondelegation challenge to Congress’s delegation of authority to the Attorney General.4 4.139 S. Ct. 2116, 2122 (2019).Show More

At first glance, vagueness and nondelegation appear more different than alike. The Court has located the nondelegation doctrine in the Constitution’s “Vesting Clauses”—the Article I, Article II, and Article III provisions which vest the legislative, executive, and judicial powers in their respective branches—while vagueness doctrine has its roots in fair notice concerns and the Due Process Clauses. Vagueness’s most prominent application has been in cases involving state and local vagrancy offenses and status crimes, while the nondelegation doctrine has been employed in largely conservative-libertarian projects aimed to rein in the ever-expanding administrative and regulatory state.

Despite these differences, the two doctrines share an intuitive connection: when legislatures draft vague statutes, they delegate lawmaking authority to other branches of government. The Court gave expression to this link in Dimaya, Davis, and Gundy, describing the two doctrines using starkly similar vocabulary and shedding light on their interrelatedness. In Dimaya, Justice Kagan referred to vagueness as the “corollary” of the separation of powers that undergirds the nondelegation doctrine.5 5.Dimaya, 138 S. Ct. at 1212.Show More In his Dimaya dissent, Justice Thomas noted that the “Court’s precedents have occasionally described the vagueness doctrine in terms of nondelegation.”6 6.Id.at 1248 (Thomas, J., dissenting).Show More Most notably, in Gundy, Justice Gorsuch argued that “most any challenge to a legislative delegation can be reframed as a vagueness complaint,” and that the Court’s “void-for-vagueness cases became much more common soon after the Court began relaxing its approach to legislative delegations.”7 7.Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting).Show More That is, as the Court backed away from using the nondelegation doctrine to police Congress’s delegation of its legislative power in the second half of the twentieth century, the Court began using vagueness to do the work that nondelegation would have done otherwise.

This Note picks up on the thread that Justice Gorsuch started in Gundy and explores the relationship between vagueness and nondelegation. In so doing, this Note offers two main contributions.

First, it concludes that as a historical matter, Justice Gorsuch’s claim about vagueness replacing nondelegation tells only part of the story. The Note looks to pre- and post-New Deal doctrinal development of both vagueness and nondelegation to conclude that while the doctrines have some overlap, Justice Gorsuch overstated their connection. The Court’s vagueness cases from the late 1800s, the early days of the doctrine, did indeed police legislative delegations. But the cases that came after 1937 did not. The Court instead began using vagueness to protect individual rights like free speech. It also wielded vagueness to protect racial minorities from invidious discrimination by state and local police. In these post-New Deal vagueness cases, federal nondelegation concerns were largely absent. This version of vagueness did not replace the nondelegation doctrine, which the Court largely discarded.

Still, the Roberts Court picked up where the early vagueness cases left off; nondelegation again entered the realm of vagueness. In modern vagueness cases, concerns of individual rights and free speech are absent. Also absent are issues of invidious racial discrimination. These cases instead emphasize the proper constitutional role of Congress, the executive, and the judiciary within the federal separation of powers. To the extent that the Court and Justice Gorsuch see an overlap between vagueness and nondelegation, it is this line of cases that they see.

In effect, there are two vagueness doctrines. One comprises the majority of the Court’s vagueness cases after the New Deal era, including the landmark case Papachristou v. City of Jacksonville. The second has its origins in the earliest vagueness cases. And although this latter doctrine subsided after 1937, the Court has revived it in recent cases like Dimaya and Davis.

This Note categorizes the Court’s vagueness cases into (1) Rights-Based Vagueness and (2) Structure-Based Vagueness. Although both categories of cases involve due process concerns, they diverge from there. Cases like Papachristou, and their emphasis on individual rights and equal protection, comprise Rights-Based Vagueness. In contrast, Structure-Based Vagueness is the vagueness that the Court employs in Dimaya, Davis, and Gundy. In these latter cases, the Court emphasizes nondelegation and the separation of powers. To the extent that vagueness and nondelegation converge, it is in the context of Structure-Based Vagueness. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

Recognizing Structure-Based Vagueness for what it is has important implications. Identifying this category adds analytical clarity to the literature on the intersection of vagueness and nondelegation, which to this point has remained cursory and underdeveloped. It further offers insight into how a vagueness doctrine that was previously wielded to address racial discrimination by local police has transformed into a vagueness doctrine that seemingly only has purchase in challenges to federal malum prohibitum crimes. This Note thus adds to the realist literature that views vagueness doctrine as a doctrinal makeweight, which can be reshaped to serve broader and unrelated judicial values and priorities.

Identifying Structure-Based Vagueness has practical consequences too. Structure-Based Vagueness offers common ground to criminal justice reformers and immigrant rights advocates on the one hand, and conservative-libertarians interested in curbing the power of the federal government on the other. By employing the rhetoric of separation of powers in their vagueness arguments, criminal justice reformers and immigrant rights advocates can win meaningful progressive victories from a Court enamored with nondelegation. Moreover, Structure-Based Vagueness offers a limiting principle to opponents of a more aggressive nondelegation doctrine. By tying Structure-Based Vagueness and its nondelegation component to their underlying rationales, skeptics of the nondelegation doctrine can cabin its application to only criminal and penal laws, reducing the potentially harmful impact that a more rigid doctrine would have on environmental, labor, and other economic regulations.

This Note proceeds in four Parts. Part I provides a brief summary of the vagueness and nondelegation doctrines and canvasses literature that addresses their intersection. It then summarizes the Court’s decisions in Dimaya, Davis, and Gundy and draws out Justice Gorsuch’s specific claim about the relationship between vagueness and nondelegation. Part II inspects the historical trajectory of both doctrines, beginning just before the Lochner era and ending with today’s Roberts Court. It uses this history to challenge Justice Gorsuch’s claim. Part III then categorizes vagueness into its two conceptions—Rights-Based Vagueness and Structure-Based Vagueness. Part IV explores the theory behind Structure-Based Vagueness and identifies future applications. A brief conclusion follows.

  1. Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights,
    62

    Stan. L. Rev.

    1361, 1387 (2010).

    ↑

  2. 139 S. Ct. 2319, 2336 (2019). ↑
  3. 138 S. Ct. 1204, 1223 (2018). ↑
  4. 139 S. Ct. 2116, 2122 (2019). ↑
  5. Dimaya, 138 S. Ct. at 1212. ↑
  6. Id. at 1248 (Thomas, J., dissenting). ↑

  7. Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting). ↑

Proving Causation in Clinical Research Negligence

Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing the study or failing to obtain informed consent, subjects who experience a negative outcome relative to not having participated in the study should be able to maintain a cause of action for negligence against the investigators.

Yet when researchers are negligent, it will often be impossible to show whether the study caused any individual subject’s injuries. The infamous SUPPORT study, in which researchers should have reasonably foreseen that they were exposing randomly selected infants to a higher risk of death, is one example. As the subsequent litigation over that study showed, traditional principles of causation operate to make it difficult or impossible for research subjects to pursue such claims against investigators. This is because the factual circumstances of most clinical research preclude individual plaintiffs from being able to show that their injuries were more-likely-than-not caused by their participation in the study.

The loss of chance doctrine developed in medical malpractice suits provides one potential solution for overcoming this causation problem. An even better solution, which provides optimal deterrence and as-good-as-possible compensation for injured subjects, would be for courts to adopt a theory of “marginal causation,” which permits proof of causation by the aggregate marginal damages suffered by plaintiffs as a group, as an extension of the existing doctrines of loss of chance and alternative liability.

Introduction

Human-subjects research is vital for advancing scientific and medical knowledge. In particular, the development of new drugs relies on studies carried out on human volunteers. The COVID-19 pandemic and the corresponding race to develop a vaccine have placed the risks and rewards of medical research in the spotlight.1 1.See, e.g., Carl Zimmer, Jonathan Corum & Sui-Lee Wee, Coronavirus Vaccine Tracker, N.Y. Times, https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.​html[https://perma.cc/MTG4-6P9H] (last visited Oct. 20, 2020).Show More While there is much concern about the safety of potential vaccines for the public,2 2.Katie Thomas, Experts Tell FDA It Should Gather More Safety Data on Covid-19 Vaccines, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/10/22/health/covid-vaccine-fda-advisory-committee.html [https://perma.cc/A8AY-SFJE].Show More scant attention has been placed on the risks to participants in the preclinical trials, which include tens of thousands of volunteers.3 3.William A. Haseltine, The Risks of Rushing a COVID-19 Vaccine, Sci. Am. (June 22, 2020), https://www.scientificamerican.com/article/the-risks-of-rushing-a-covid-19-vaccine/ [https://perma.cc/QG6D-P26G].Show More Indeed, three COVID-19-vaccine clinical trials were halted due to safety concerns.4 4.Carl Zimmer, 3 Covid-19 Trials Have Been Paused for Safety. That’s a Good Thing., N.Y. Times (Nov. 23, 2020), https://www.nytimes.com/2020/10/14/health/covid-clinical-trials.htm​l [https://perma.cc/J377-L62Z].Show More Although nothing suggests that these studies have deviated from appropriate ethical standards,5 5.Id. Monitoring and reacting appropriately to adverse events are part of routine clinical research. SeeFDA, Guidance for Clinical Investigators, Sponsors, and IRBs: Adverse Event Reporting to IRBs—Improving Human Subject Protection 3–6 (2009), https://www.fda.gov/​media/72267/download [https://perma.cc/AE2L-ANDA].Show More the demand for a speedy solution and the prospect of financial reward create complicated ethical pressures.6 6.U.S. Dep’t Health & Hum. Servs., Explaining Operational Warp Speed (2020), https://www.nihb.org/covid-19/wp-content/uploads/2020/08/Fact-sheet-operation-warp-spee​d.pdf [https://perma.cc/94NK-MVJL]; Emily A. Wang, Jonathan Zenilman & Lauren Brinkley-Rubinstein, Ethical Considerations for COVID-19 Vaccine Trials in Correctional Facilities, 324 JAMA 1031 (2020); Euzebiusz Jamrozik & Michael J. Selgelid, COVID-19 Human Challenge Studies: Ethical Issues, 20 Lancet Infectious Diseases e198, e199–e202 (2020).Show More Besides these highly publicized Phase 3 trials, the National Institutes of Health (“NIH”) reports that there are currently 947 studies conducting human-subjects research on COVID-19.7 7.ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/RC4E-CTK8] (last visited Oct. 1, 2021) (selecting “COVID-19” for “Condition or disease,” “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”).Show More

Beyond COVID-19, NIH reports that there are 34,907 studies involving human subjects that are recruiting, enrolling, or active in the United States.8 8.ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/XR6G-GPFA] (last visited Oct. 1, 2021) (selecting “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”).Show More If carried out correctly, these studies, on COVID-19 or otherwise, will advance the collective knowledge of society, increase the quality of medical treatment, and save lives. But these studies also risk treating their human subjects as merely a means to a scientific end.9 9.Immanuel Kant, Groundwork for the Metaphysics of Morals 46–47 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785) (“The practical imperative will thus be the following: Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.”).Show More An ethical violation of this nature is particularly insidious in the context of medical research, where subjects often place their trust in medical professionals. Yet clinical research differs from medical treatment because medical professionals conducting research are not acting for the benefit of any specific patient, but rather are attempting to generate scientific knowledge. Any benefit to a specific subject is incidental.10 10.See infraSection II.A.Show More

The history of medical research in the United States, including the forty-year failure of the Tuskegee Syphilis Study to obtain consent from, inform, or treat nearly 400 Black men infected with syphilis11 11.CDC, The Tuskegee Timeline, https://www.cdc.gov/tuskegee/timeline.htm [https://perm​a.cc/422Y-SUUX] (last visited Nov. 19, 2019).Show More shows that investigators in this country are capable of reprehensible research.12 12.Frederick Adams, ForewordtoVivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans, at xv, xv–xxvii (2005).Show More Tort law ought to provide a safeguard against such ethical failures. But it fails to do so because satisfying the traditional requirements of causation is impossible for most clinical research. The loss of chance doctrine, familiar in the medical malpractice context, should be accepted as a means of satisfying causation in clinical research cases. The best way for tort law to address clinical research harms is to extend the canonical Summers v. Tice doctrine of alternative liability to loss of chance.13 13.33 Cal. 2d 80 (1948).Show More This Note calls this proposed approach “marginal causation.”

In Part I, this Note discusses the Surfactant, Positive Pressure, and Pulse Oximetry Randomized Trial Study (“SUPPORT study”), which is a salient instance of possible clinical research negligence. There are good reasons to believe that this study was negligent in its informed consent process and in its design. Yet institutional review boards approved the study and investigators conducted it. While negligence for the research was litigated in Looney v. Moore, the application of Alabama’s traditional causation doctrine by the trial and appellate courts prevented the plaintiff-subjects from even reaching a jury.14 14.18 F. Supp. 3d 1338 (N.D. Ala. 2014), aff’d, 886 F.3d 1058 (11th Cir. 2018).Show More

As Part II describes, there is a sufficient foundation existing in the common law for the courts of most jurisdictions to find that legal duties exist between investigators and subjects in clinical research and that their breach is legally cognizable. Nonetheless, the particular factual circumstances of clinical research preclude subjects from proving causation under traditional negligence doctrine. Investigators’ conduct itself shields them from liability when they negligently conduct their research on human subjects.

Part III explores a potential solution to the failure of traditional doctrine to address clinical research harms in the doctrine of loss of chance, which courts have developed in the face of similar challenges for plaintiffs in medical malpractice actions. It also discusses how the law of mass exposure torts provides a parallel for clinical research negligence. This Part concludes by suggesting that the factual circumstances of clinical research are best met through an extension of the canonical Summers v. Tice doctrine of alternative liability from defendants to plaintiffs. The theory, which this Note terms “marginal causation,” proposes that when a class of vulnerable plaintiffs can show that it collectively suffered a marginal aggregate injury because of a defendant’s conduct, common law courts should permit individual injured plaintiffs to recover for the likelihood that their injuries were actually caused by the defendant’s conduct.

  1. See, e.g., Carl Zimmer, Jonathan Corum & Sui-Lee Wee, Coronavirus Vaccine Tracker, N.Y. Times, https://www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.​html
    [

    https://perma.cc/MTG4-6P9H] (last visited Oct. 20, 2020). ↑

  2. Katie Thomas, Experts Tell FDA It Should Gather More Safety Data on Covid-19 Vaccines, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/10/22/health/covid-vaccine-fda-advisory-committee.html [https://perma.cc/A8AY-SFJE]. ↑
  3. William A. Haseltine, The Risks of Rushing a COVID-19 Vaccine, Sci. Am
    .

    (June 22, 2020), https://www.scientificamerican.com/article/the-risks-of-rushing-a-covid-19-vaccine/ [https://perma.cc/QG6D-P26G]. ↑

  4. Carl Zimmer, 3 Covid-19 Trials Have Been Paused for Safety. That’s a Good Thing., N.Y. Times (Nov. 23, 2020), https://www.nytimes.com/2020/10/14/health/covid-clinical-trials.htm​l [https://perma.cc/J377-L62Z]. ↑
  5. Id. Monitoring and reacting appropriately to adverse events are part of routine clinical research. See FDA, Guidance for Clinical Investigators, Sponsors, and IRBs: Adverse Event Reporting to IRBs—Improving Human Subject Protection 3–6 (2009), https://www.fda.gov/​media/72267/download [https://perma.cc/AE2L-ANDA]. ↑
  6. U.S. Dep’t Health & Hum. Servs., Explaining Operational Warp Speed (2020), https://www.nihb.org/covid-19/wp-content/uploads/2020/08/Fact-sheet-operation-warp-spee​d.pdf [https://perma.cc/94NK-MVJL]; Emily A. Wang, Jonathan Zenilman & Lauren Brinkley-Rubinstein, Ethical Considerations for COVID-19 Vaccine Trials in Correctional Facilities, 324
    JAMA 1031

    (2020); Euzebiusz Jamrozik & Michael J. Selgelid, COVID-19 Human Challenge Studies: Ethical Issues, 20 Lancet Infectious Diseases e198, e199–e202 (2020). ↑

  7. ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/RC4E-CTK8] (last visited Oct. 1, 2021) (selecting “COVID-19” for “Condition or disease,” “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”). ↑
  8. ClinicalTrials.gov, https://clinicaltrials.gov/ct2/results?cntry=US&Search=Apply&recrs=‌a&recrs=f&recrs=d&age%20_v=&gndr=&type=&rslt= [https://perma.cc/XR6G-GPFA] (last visited Oct. 1, 2021) (selecting “United States” for “Country” and “Recruiting,” “Enrolling by invitation,” and “Active, not recruiting” from “Status”). ↑
  9. Immanuel Kant, Groundwork for the Metaphysics of Morals 46–47 (Allen W. Wood ed. & trans., Yale Univ. Press 2002) (1785) (“The practical imperative will thus be the following: Act so that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as means.”). ↑
  10. See infra Section II.A. ↑
  11.  CDC, The Tuskegee Timeline, https://www.cdc.gov/tuskegee/timeline.htm [https://perm​a.cc/422Y-SUUX] (last visited Nov. 19, 2019). ↑
  12. Frederick Adams, Foreword to Vivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans, at xv, xv–xxvii (2005). ↑
  13. 33 Cal. 2d 80 (1948). ↑

  14. 18 F. Supp. 3d 1338 (N.D. Ala. 2014), aff’d, 886 F.3d 1058 (11th Cir. 2018). ↑

RFRA at the Border: Immigration’s Entry Fiction and Religious Free Exercise

RFRA and RLUIPA have greatly enhanced the religious free exercise rights of individuals, but it is not clear that all immigrants in detention in the United States are able to claim these protections. One lower court has applied the entry fiction doctrine, which limits the constitutional rights of immigrants at the border, to hold that these immigrants do not have statutory rights under RFRA because they are not “person[s]” within the meaning of the statute. This Note contends that the Supreme Court’s recent analysis of RFRA in Burwell v. Hobby Lobby Stores, Inc. calls into question this lower court decision. Contemplating the various methods of statutory interpretation from Hobby Lobby and other lower courts, this Note argues that the plain meaning of “person[s]” should govern its interpretation in RFRA and, thus, should include immigrants subject to the entry fiction.

Introduction

For many, religion is a solace in times of crisis.1 1.Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”).Show More However, for some immigrants in detention centers across the country, their ability to practice their religion has been limited.2 2.Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”).Show More In Glades County, Florida, Muslim immigrant detainees were denied access to the Quran and forced to use bedsheets as prayer rugs.3 3.See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019).Show More In both Port Isabel, Texas and Miami, Florida, Muslim detainees were given only pork sandwiches to eat.4 4.Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ].Show More In Sheridan, Oregon, Sikh detainees were denied turbans, and other detainees were denied access to pastoral care or spaces to worship.5 5.See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018).Show More In Victorville, California, detainees were likewise denied meals that complied with their religious needs, were denied appropriate religious counseling, and were prevented from wearing head coverings.6 6.See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5.Show More Indeed, one individual was chastised by officers for using his cell to pray, even though he was given no other space to do so.7 7.Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3.Show More

These stories are reminiscent of the shocking stories relating to immigrant detention centers over the past decade.8 8.See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L].Show More The COVID-19 pandemic has not only grossly over-affected immigrant detainees in terms of the virus’s impact,9 9.Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4].Show More but it has led to greater opportunities for mistreatment.10 10.Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19).Show More Other accounts of abuse in immigration detention also raise religiously motivated concerns, albeit not as directly as those previously mentioned. For example, in deciding a due process challenge to the Trump administration’s family separation policies, a district court judge wrote that separating her from her child “absolutely precludes” a mother’s “involvement in any aspect of her sons’ care, custody, and control, from religion to education.”11 11.Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context.Show More Additionally, recent claims of unwanted gynecological procedures in detention centers12 12.Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ].Show More could raise concerns of bodily integrity that are violative of certain religious beliefs. While there would need to be an individualized assessment of whether these practices burdened individuals’ religious practices, all of these stories demonstrate the pressing importance of protecting the religious rights of immigrants in detention centers.

What may be most surprising about the previous stories is not that they happened, but that there may not be a remedy under the law for these violations. The Religious Freedom Restoration Act (“RFRA”)13 13.42 U.S.C. § 2000bb-1.Show More and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)14 14.42 U.S.C. §§ 2000cc–2000cc-1.Show More provide the broadest grants of religious free exercise protections against laws made or actions taken by the federal government.15 15.While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A.Show More The First Amendment Free Exercise Clause also provides more limited protections against religious liberty violations.16 16.U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990).Show More However, because of the complex doctrine known as the “entry fiction,” certain immigrants may not be able to bring a suit under RFRA or RLUIPA.17 17.See infra Section I.B.Show More

The entry fiction says that certain individuals, while physically inside the United States are legally considered to be still outside of the United States because they have not “effected an entry.”18 18.Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine).Show More While controversial,19 19.Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”).Show More it has primarily been applied to deny certain immigrants their procedural due process rights in immigration proceedings.20 20.SeeWong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”).Show More However, relying on this doctrine, at least one lower court has recently interpreted this fiction to deny immigrants their rights under RFRA by holding that they are not “person[s]” under the statute.21 21.Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010).Show More

At the same time, the Supreme Court has arguably expanded the scope of free exercise protections available to individuals under RFRA.22 22.See infra Section III.A.Show More In deciding Burwell v. Hobby Lobby Stores, Inc.,23 23.573 U.S. 682 (2014).Show More the Court suggested a new, larger role for RFRA in affording religious liberty protections that go even beyond the Constitutional guarantees of the older, more protective free exercise precedents.24 24.See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A.Show More While this move to untether RFRA from the First Amendment could prove troublesome, in that it allows for broader religion-based challenges to federal laws that protect civil rights,25 25.See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses).Show More this Note will contend that this decision is good for immigrants subject to the entry fiction as it establishes a framework under which they can bring a RFRA claim.

This Note will attempt to resolve a fragment of the jurisprudential conflict between expanded religious liberty rights and restricted immigration rights by answering the narrow question of whether immigrants who are subject to the entry fiction are “person[s]” under RFRA. The normative analysis of this question is clear: the United States should not prevent relief to individuals who have been subjected to some of the treatment described above at the hands of government actors. Unfortunately, the doctrinal analysis is murkier, and it is this analysis with which this Note will contend. Part I will give an overview of RFRA and RLUIPA, including the relevant statutory history. It will then outline in more detail the doctrine of the entry fiction, laying out its import to the constitutional rights of immigrants, and the relevance of these constitutional rights to the statutory interpretation question at the heart of this issue.

Part II will confront the decisions of lower courts that have waded into this murky analysis. Only one lower court has directly ruled on this question as it relates to immigrants subject to the entry fiction.26 26.See Bukhari, 2010 WL 3385179.Show More That court relied heavily on a case from the U.S. Court of Appeals for the D.C. Circuit, which confronted the question as it relates to Guantanamo detainees.27 27.Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008).Show More As the law around Guantanamo detainees is more developed, this Note will delve deeply into that case and other similar cases from the D.C. Circuit.

Part III will then focus on the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. This Part will explore the Court’s enlarged view of RFRA and how its analysis casts doubt on the reasoning of the decisions in the lower courts. Finally, Part IV will propose a way to answer the question of who are “person[s]” under RFRA. Contending with three separate methods of statutory interpretation, this Note will demonstrate why a plain meaning approach to the term “person[s]” is the most logical from a doctrinal perspective. By reading “person[s]” to include all people who are subject to government burdens on their free exercise, immigrants subject to the entry fiction will have rights under the RFRA and RLUIPA statutory regimes.

  1. Maryam Saleh, A Second Chance, Intercept (Dec. 22, 2018, 10:44 AM), https://theintercept.com/2018/12/22/georgia-ice-raids-muslim-refugees/ [https://perma.cc/Q3Q5-MLWS] (“You know, it’s just the belief that you have that you don’t have no control of everything, so, you know, that’s what keeps us going, just prayers . . . .”). ↑
  2. Conrad Wilson, Hundreds of Immigrant Detainees Held in Federal Prisons, NPR (Aug. 23, 2018, 7:28 AM), https://www.npr.org/2018/08/23/641165251/legal-battles-began-when-migrants-were-sent-to-federal-prisons [https://perma.cc/8A3F-6GN4] (“If you lock somebody up in a foreign country and cut them off from the outside world . . . it’s going to cause all kinds of psychological trauma at the minimum . . . .”). ↑
  3. See ACLU, Letter from ACLU to U.S. Dep’t of Homeland Sec. 4 (Mar. 15, 2019), https://www.aclu.org/letter/investigating-religious-freedom-violations-border-patrol-and-ice [https://perma.cc/ET7C-TAG6] [hereinafter ACLU Letter]; Complaint at 12–13, Abdulkadir v. Hardin, No. 2:19-CV-00120-SPC-MRM (M.D. Fla. Feb. 27, 2019). ↑
  4. Roque Planas, Border Patrol Fed Pork to Muslim Detainee for 6 Days, Huffington Post (Feb. 27, 2019, 4:45 PM), https://www.huffpost.com/entry/border-patrol-fed-pork-to-muslim-detainee-for-six-days_n_5c76f474e4b0d3a48b5627a2#:~:text=A%20permit%20allowing‌%20him%20to,Parveen%20from%20landinl%20in%20detention [https://perma.cc/F2JZ-ZFKM]; Groups: Muslim Detainees at Miami Facility Are Served Pork, Associated Press (Aug. 20, 2020), https://apnews.com/article/a4cdb2edd79edfc83adde71fdcafb079 [https://perma.cc/A8GJ-4LHJ]. ↑
  5. See ACLU Letter, supra note 4, at 5; Decl. in Support of Habeas Petition at 2, ICE Detainee No. 2 v. Salazar, No. 3:18-CV-01280-MO (D. Or. July 18, 2018); Memo in Support of Petition for Habeas Corpus at 22–23, ICE Detainee Nos. 1-74 v. Salazar, No. 3:18-CV-01279-MO (D. Or. July 30, 2018). ↑
  6. See ACLU Letter, supra note 4, at 5; Decl. of Atinder Paul Singh ¶ 5, 10–11, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 1-4; Decl. of Gurjinder Singh ¶¶ 4–8, id., ECF No. 1-5. ↑
  7. Decl. of Gabriel Antonio Manzanilla Pedron ¶ 24, Teneng v. Trump, No 5:18-cv-01609 (C.D. Cal. Aug. 1, 2018), ECF No. 45-3. ↑
  8. See Michael D. Shear, Katie Benner & Michael S. Schmidt, ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said, N.Y. Times (Oct. 6, 2020), https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html [https://perma.cc/EPE8-HDCX]; Jacob Soboroff & Julia Ainsley, Lawyers Can’t Find the Parents of 666 Migrant Kids, A Higher Number Than Previously Reported, NBC News (Nov. 9, 2020, 4:32 PM), https://www.nbcnews.com/politics/immigration/lawyers-can-t-find-parents-666-migrant-kids-higher-number-n1247144 [https://perma.cc/G8KR-AWJH]; Tell Me More: Child Detention Centers: A ‘Headache’ for the Obama Administration NPR (June 23, 2014, 12:54 PM), https://www.npr.org/2014/06/23/324857970/child-detention-centers-a-headache-for-the-obama-administration [https://perma.cc/3CMF-WM8L]. ↑
  9. Alisa Reznick, ‘You Can Either Be a Survivor or Die’: COVID-19 Cases Surge in ICE Detention, NPR (July 1, 2020, 9:17 AM), https://www.npr.org/2020/07/01/871625210/you-can-either-be-a-survivor-or-die-covid-19-cases-surge-in-ice-detention [https://perma.cc/NBC3-JWK4]. ↑
  10. Ike Swetlitz, ‘Suddenly They Started Gassing Us’: Cuban Migrants Tell of Shocking Attack at ICE Prison, Guardian (July 2, 2020, 6:00 PM), https://www.theguardian.com/us-news/2020/jul/02/cuban-migrants-detention-ice-facility-new-mexico [https://perma.cc/QP2N-AYNV] (describing immigrant detainees who were corralled into their dormitory and pepper sprayed by prison guards in “full riot gear of gas masks” and “shields” as a response to their hunger strike protesting against their vulnerability to COVID-19). ↑
  11. Jacinto-Castanon de Nolasco v. U.S. Immigr. & Customs Enf’t, 319 F. Supp. 3d 491, 501 (D.D.C. 2018) (emphasis added). While it is not clear that the mother in this case would be able to claim that this burdened her religious beliefs, it shows the scope of religion-related issues present in the immigration detention context. ↑
  12. Caitlin Dickerson, Seth Freed Wessler & Miriam Jordan, Immigrants Say They Were Pressured Into Unneeded Surgeries, N.Y. Times (Sept. 29, 2020), https://www.nytimes.com/‌2020/09/29/us/ice-hysterectomies-surgeries-georgia.html [https://perma.cc/7TQX-8QKZ]. ↑
  13. 42 U.S.C. § 2000bb-1. ↑
  14. 42 U.S.C. §§ 2000cc–2000cc-1. ↑
  15. While both RFRA and RLUIPA apply to federal actions, only RLUIPA applies to state actions as well. See City of Boerne v. Flores, 521 U.S. 507, 529, 532–36 (1997); Cutter v. Wilkinson, 544 U.S. 709, 713, 715–16 (2005); infra Section I.A. ↑
  16. U.S. Const. amend. I (“Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”); see Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 878–79 (1990). ↑
  17. See infra Section I.B. ↑
  18. Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see Wong v. United States, 373 F.3d 952, 971 (9th Cir. 2004) (summarizing the entry fiction doctrine). ↑
  19. Recent dissents by the Court have argued vehemently against this legal fiction. See Jennings v. Rodriguez, 138 S. Ct. 830, 862 (2018) (Breyer, J., dissenting) (“We cannot here engage in this legal fiction. No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.”); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 2013 (2020) (Sotomayor, J., dissenting) (“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted . . . .”). ↑
  20. See Wong, 373 F.3d at 971–72; see also Zadvydas, 533 U.S. at 703–04 (Scalia, J., dissenting) (claiming that the distinction between “aliens” who have effected an entry and those who have not “makes perfect sense” with regard to the procedures “necessary to prevent entry” but he is “sure they cannot be tortured”). ↑
  21. Bukhari v. Piedmont Reg’l Jail Auth., No. 01:09-CV-1270, 2010 WL 3385179, at *5 (E.D. Va. Aug. 20, 2010). ↑
  22. See infra Section III.A. ↑
  23. 573 U.S. 682 (2014). ↑
  24. See id. at 695 n.3 (“RFRA did more than merely restore the balancing test used in the Sherbert line of cases; it provided even broader protection for religious liberty than was available under those decisions.”); see also infra Section III.A. ↑
  25. See Micah Schwartzman, Richard C. Schragger & Nelson Tebbe, The New Law of Religion, Slate (July 3, 2014, 11:54 AM), https://slate.com/news-and-politics/2014/07/after-hobby-lobby-there-is-only-rfra-and-thats-all-you-need.html [https://perma.cc/92GW-D4GT]; Marty Lederman, Hobby Lobby Part XVIII—The One (Potentially) Momentous Aspect of Hobby Lobby: Untethering RFRA from Free Exercise Doctrine, Balkinization (July 6, 2014), https://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html [https://perma.cc/2A3B-MSRX]; see also Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 93 (2015) (noting a potential wave of RFRA litigation regarding employer objections to paying benefits for same-sex spouses). ↑
  26. See Bukhari, 2010 WL 3385179. ↑

  27. Id. at *4; see Rasul v. Myers (Rasul II), 563 F.3d 527, 528 (D.C. Cir. 2009); Rasul v. Myers (Rasul I), 512 F.3d 644, 649 (D.C. Cir. 2008), cert. granted, judgment vacated, 555 U.S. 1083 (2008). ↑

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