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Partisan Emergencies

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

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

Introduction

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

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

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

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

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

    ↑

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

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

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

    Jan. 6,

    2021

    , at 1, 1

    .

    ↑

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

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

    .

    ↑

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

    The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (

    2023);

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

    365, 405 (2021);

    Stein, supra note 12, at 515. ↑

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

  18.  See infra Part II. ↑

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). ↑

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