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Judicial Review of Emergency Powers in Banking and Financial Regulation

Banking and finance are arcane industries that often elude popular understanding, so courts, Congress, and the American public have largely delegated their regulation to federal agencies with considerable decision-making autonomy, affecting trillions of public and private dollars. Some regulatory powers, however, have the potential to destabilize the financial system. Yet for forty years, courts deferred to these agencies under the Chevron doctrine.

Over the past three years, the Supreme Court of the United States has generally curtailed the administrative state’s role in policy-making by overturning Chevron and enunciating the major questions doctrine. Deference to agencies plays a special role in banking and financial regulation as open-ended emergency provisions facilitate crisis response. But on several occasions since the 2008 financial crisis, agencies have misused these powers by invoking them routinely or when an emergency is not really afoot. If these regulators “cry wolf” too often, they create perverse incentives that heighten the risk of financial turmoil.

This Essay argues that the Court’s recent skepticism toward the administrative state is a positive development for banking and financial regulation. While courts should not totally abrogate regulatory discretion in this field of law, a stronger threat of judicial review could encourage agencies to reserve emergency powers for genuine crises. This will deter them from “crying wolf” to abuse their emergency powers, promote stability and transparency in regulatory decision-making, and better prepare the country for future financial crises.

Introduction

“Let us control the money of a country and we care not who makes its laws.”1 1.Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑Show More

The Roberts Court’s scrutiny of the administrative state escalated in June 2024 when it overturned the forty-year-old doctrine of Chevron deference2 2.Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7].Show Morein Loper Bright Enterprises v. Raimondo.3 3.Loper Bright, 144 S. Ct. 2244.Show MoreThis decision reaffirmed the Court’s skeptical stance on executive agencies in line with its decisions in Biden v. Nebraska4 4.143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”).Show Morein 2023 and West Virginia v. EPA5 5.142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected).Show Morethe year before. Many legal commentators join Justice Kagan, who wrote a foreboding dissent in Loper Bright, in predicting that Chevron’s overturn will disrupt the legal system for the worse.6 6.See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”).Show MoreAnd they may well be right. But for at least one area of the law—banking and financial regulation—Chevron’s demise is a positive development.7 7.For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW].Show More

Principal regulators in this field include the Federal Reserve (“Fed”), the Federal Deposit Insurance Corporation (“FDIC” or “Corporation”), and the Financial Stability Oversight Council (“FSOC” or “Council”). Congress granted these agencies elaborate statutory mandates aimed at safeguarding the stability of the United States financial system. Since the 2008 financial crisis, however, regulators have exploited broad provisions buried in these mandates to take risky and unprecedented action. But the Supreme Court’s new stance on the administrative state may halt that trend.

This Essay argues that stronger judicial review of banking and financial regulators will make the financial system sounder by encouraging wiser use of regulatory tools. Part I discusses why excessive agency involvement poses risks to the financial system, primarily by creating moral hazard. Part II covers three statutory provisions regulators questionably invoked during and after the 2008 financial crisis to justify more frequent intervention. Part III examines some judicial levers the Supreme Court has pulled to limit agency discretion in other contexts, and it predicts how and when the Court may use them to check banking and financial regulators in the future.

  1.  Investigation of the Money Trust: Hearings on H.R. 314 and H.R. 356 Before the H. Comm. on Rules, 62d Cong. 40 (1912) (statement of Mr. T. Cushing Daniel, author of “Daniel on Real Money”). The maxim is frequently—probably apocryphally—attributed to Mayer Amschel Rothschild (1744–1812), founder of the Rothschild banking dynasty. Id. But its sentiment—that money is more powerful than even law itself—rings true today. In 2011, just shy of one hundred years since it was spoken in a congressional hearing on regulating Wall Street, see id., a variation of the maxim appeared scrawled on a cardboard sign at the Occupy Wall Street protest. Photograph of Cardboard Sign (OWS_190b), in N.Y. Hist. Soc’y Shelby White & Leon Levy Digit. Libr., Occupy Wall Street Signs and Posters (2011), https://digitalc‌ollections.nyhistory.org/islandora/object/nyhs%3A169816 [https://perma.cc/NQA6-DRBT]. ↑
  2.  Amy Howe, Supreme Court Strikes Down Chevron, Curtailing Power of Federal Agencies, SCOTUSblog (June 28, 2024, 12:37 PM), https://www.scotusblog.com/2024/06/su‌preme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/ [https://perma.cc/Y‌UF7-FASL]. “Chevron deference” refers to the Supreme Court’s 1984 decision to defer to agencies’ interpretations of ambiguous statutes. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). Some commentators predict the Court may soon go further in this direction by holding that broad delegations to agencies are altogether unconstitutional. Cydney Posner, Will SCOTUS Revive the Nondelegation Doctrine?, Harv. L. Sch. F. on Corp. Governance (Dec. 19, 2024), https://corpgov.law.harvard.edu/2024/12/19/will-scotus-revive-the-nondeleg‌ation-doctrine/ [https://perma.cc/RU5U-UQX7]. ↑
  3.  Loper Bright, 144 S. Ct. 2244. ↑
  4.  143 S. Ct. 2355, 2368 (2023) (characterizing the Secretary of Education’s interpretation of the HEROES Act as an attempt to “rewrite that statute from the ground up”). ↑
  5.  142 S. Ct. 2587, 2614 (2022) (rejecting the Environmental Protection Agency’s “newly uncovered” interpretation that would have “conveniently enabled it to enact a program” that Congress had rejected). ↑
  6.  See, e.g., Michael M. Epstein, Agency Deference After Loper: Expertise as a Casualty of a War Against the “Administrative State,” 89 Brook. L. Rev. 871 (2024); see also Loper Bright, 144 S. Ct. at 2295 (Kagan, J., dissenting) (“In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.”). ↑

  7.  For an argument that Chevron helped cause the 2008 financial crisis by letting regulators expand “the business of banking,” see Todd Phillips, Chevron and Banking Law: What’s Good for the Goose Isn’t Good for the Gander, Yale J. on Regul.: Notice & Comment (May 2, 2024), https://www.yalejreg.com/nc/chevron-and-banking-law-whats-good-for-the-goose-isnt-good‌-for-the-gander/ [https://perma.cc/G7KN-PJJW]. ↑

Victory: How a Lawyer, a Minister, and Twenty Professional Football Players Helped End Segregation in Virginia and Professional Sports

Introduction

As Chapman Law Dean Matthew Parlow has noted, “[a]thletes in professional sports have long sought to use their platforms as celebrities to bring greater societal awareness to issues of social justice and racial inequality.”1 1.Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022).Show MoreOne of the clearest examples is the 2020 NBA player boycott following the shooting death of Jacob Blake by police in Kenosha, Wisconsin, a boycott that spread to several other professional sports organizations.2 2.Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html.Show MoreMultiple media outlets covering the 2020 boycott referenced an event that garnered national attention in October 1961, when several members of the Boston Celtics and St. Louis Hawks refused to play in a preseason NBA game in response to discrimination in a hotel in Lexington, Kentucky.3 3.See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/.Show MoreSome of the stories referred to this incident as the first professional athlete boycott related to a civil rights issue.4 4.Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU].Show More

Just two months earlier, however, another group of professional athletes—this time, a group of football players—had agreed to boycott a professional athletic event in protest of racial discrimination in Roanoke, Virginia. The athletes did so at the behest of a local minister, who was a prominent civil rights activist. At the same time, a local civil rights lawyer was pursuing litigation to challenge the discrimination at issue, specifically enforcement of a Virginia law that prohibited integrated seating at public events, including professional sporting events. But that summer, the lawyer, the minister, and twenty football players would use a preseason NFL game to bring attention to the injustice of Virginia’s law and challenge its constitutionality. In the process, they would play an important role in helping to end segregationist practices in the NFL, establishing precedent for future racial protests by professional athletes and helping to bring about an end to Virginia’s discriminatory law.

This Essay tells the story of this largely forgotten event from the summer of 1961. The event represents a success story in the history of the civil right movement and illustrates how both legal and extra-legal methods were necessary to achieve the goals of the movement.5 5.See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”).Show MoreMuch of the focus on how the civil rights movement brought about change in the law focuses on the role that lawyers played.6 6.See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement).Show MoreBut the history of civil rights advancement is a history not just of how lawyers helped change the law and society, but how non-lawyer organizers and activists were equal partners in the undertaking.7 7.See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering).Show More

This Essay focuses on how the lawyer at the center of the boycott in Roanoke, along with those who came before and after him, used the legal process to help change the law as well as societal norms regarding racial segregation. At the same time, the Essay explores how the non-lawyers involved in this episode played a vital and complementary role in the desegregation effort. In short, the Essay explores how Virginia’s segregation laws were toppled through a combination of legal action and activism. Most importantly, the Essay memorializes the forgotten role that these individuals played in helping to desegregate professional sports and in laying the foundation for future protests by professional athletes.

  1.  Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022). ↑
  2.  Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html. ↑
  3.  See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/. ↑
  4.  Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU]. ↑
  5.  See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”). ↑
  6.  See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement). ↑

  7.  See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering). ↑

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. ↑

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