Issue 1

The Runaway Presidential Power over Diplomacy

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. These are just a few of many examples from recent years. The President’s assertedly exclusive powers over diplomacy have become a powerful yet rarely critiqued tool for withholding information from Congress and for rebuffing congressional supervision over the content and agents of international engagement.

This Article interrogates the constitutional concept of “diplomacy”—a word that, for all the emphasis the executive branch now puts upon it, was barely an English word at the time of the Framing and was not used during the Constitution’s drafting and ratification. Both structural reasoning and historical practice suggest that exclusive presidential powers over diplomacy should have a narrower ambit than executive branch lawyers currently claim. The Article excavates several forgotten limits on these powers. One is the distinction between policy and negotiation. The executive branch asserts exclusive power over both, but Congress has strong counterclaims to a constitutional power to establish policy objectives and to control outputs, such as votes in international organizations. Another limit relates to domestic-facing administrative agencies, which increasingly engage in regulatory coordination abroad. Both Congress’s traditional role in supervising agencies and the substance of these agencies’ work suggest that their international engagement should not necessarily partake of whatever exclusive powers the President holds over diplomacy and instead should be more subject to congressional control. The Article closes by proposing a distribution of power over international engagement that provides more control to Congress and by identifying institutional strategies that Congress could deploy to achieve this distribution.

Introduction

A core assumption of the executive branch is that the President possesses exclusive constitutional powers with respect to diplomacy. The White House and the Department of Justice routinely invoke these asserted powers to rebuff congressional interventions in foreign affairs. In 2020, for example, the Trump administration declared that Congress cannot specify that “[i]t is the policy of the United States” to help foreign allies combat corruption; cannot require the executive branch to give it notice prior from withdrawing from an important arms-monitoring treaty; and cannot require the Secretary of Commerce to provide Congress with a report on its use of statutorily delegated authority with respect to tariffs.1 1.Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020].Show More For executive branch lawyers, the “President’s exclusive prerogatives in conducting the Nation’s diplomatic relations are grounded in both the Constitution’s system for the formulation of foreign policy, including the presidential powers set forth in Article II of the Constitution, and in the President’s acknowledged preeminent role in the realm of foreign relations throughout the Nation’s history.”2 2.Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language).Show More

These sweeping claims fit poorly with our broader constitutional framework. As Justice Jackson famously instructed, assertions of exclusive presidential power “must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”3 3.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring).Show More Yet the exclusive diplomatic powers claimed by the President have gone largely unexamined. With the exception of one recent decision focused on the power to recognize foreign nations, the Supreme Court has not confronted these issues.4 4.Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally).Show More Among scholars as well, the diplomatic powers occupy a distant back seat to two other major constitutional powers in the field of foreign relations law: the war powers and the treaty powers.5 5.The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54 (2002) (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law).Show More While countless articles explore these two domains, there is relatively little scholarship on the diplomatic powers.6 6.For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J. 907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61.Show More This remains true even as the executive branch has come over time, especially since the late 1980s, to invoke these assertedly exclusive powers more widely, stridently, and meaningfully.

The first task of this Article, therefore, is to provide a comprehensive account of exclusive diplomatic powers claimed by the President. Simply put, the scope of these asserted powers is breathtaking. When executive branch lawyers speak of exclusive power over “diplomacy,” they are actually sweeping together a bundle of five discrete powers. These are: the power to represent the United States abroad; the power to recognize foreign nations; the power to determine the content of diplomatic communications; the power to select the agents of diplomacy; and the power to control access to diplomatic information. Each of these powers has its own constitutional pedigree and implicates different institutional values. The first two of these powers are well-established but narrow, while the latter three are deeply contested and dangerously broad. The exclusive power asserted over content, for example, is routinely claimed to encompass total control over the “time, scope, and objectives” of negotiations.7 7.Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E](using similar language).Show More And it reaches not just talk but also actions, such as the casting of U.S. votes within international organizations. When Congress issues mandates that run counter to these claims of exclusive executive power, the executive branch simply needs to get a legal opinion from the Department of Justice’s Office of Legal Counsel (“OLC”) to have its way.

Further underlying all claims of the “President’s exclusive power to conduct diplomacy”8 8.OLC Opinion of Sept. 19, 2011, supra note 2, at 116.Show More is an exceptionally capacious conception of “diplomacy.” Whether the subject is war or science, whether the forum is an international organization or a bilateral meeting, whether the executive branch officials involved are traditional diplomats or insurance regulators—all is “diplomacy” to the executive branch and therefore not subject to congressional control.9 9.E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry).Show More As OLC has put it in finding that Congress cannot prevent a technology-focused agency from negotiating with Chinese counterparts, “We have described the President’s authority over international negotiations as extending to any subject that has bearing on the national interest.”10 10.OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted).Show More

This panoramic conception of “diplomacy” greatly expands the already substantial executive branch powers claimed over diplomatic content, agents, and information. Yet as this Article shows in its second overall contribution, this conception is far from constitutionally foreordained. Indeed, the word “diplomacy” itself was barely an English word at the time of the Framing and does not appear to have been used at all during the many debates surrounding the Constitution’s drafting and ratification.11 11.See infra note 100 and accompanying text.Show More Rather, at that time, there was at most a sense that the President had certain constitutional prerogatives with respect to the negotiation of treaties, which in turn would ultimately require the advice and consent of the Senate. And as the United States came over time to engage in many forms of international engagement other than treaties, Congress left most management with the executive branch but periodically claimed control over aspects of this engagement.

In particular, I identify four ways in which Congress has asserted control in the past over aspects of U.S. international engagement in ways that undermine the broad view of “diplomacy” adopted by today’s executive branch lawyers. These four ways can be thought of as lost limits on exclusive presidential power over diplomacy. These limits are in addition to the very important power of Congress to control the implementation (or non-implementation) of most U.S. commitments as a matter of domestic policy—a power which the executive branch continues to acknowledge as belonging to Congress.12 12.For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017).Show More One limit was structural: to view the President as having exclusive power over the process of negotiation and the specific instructions given to negotiators, but to consider Congress entitled if it wished to form foreign policy objectives on the front end and to control acts with international legal significance at the back end. A second limit was content-based: to define “diplomacy” as encompassing only issues involving certain subject matters or above certain thresholds of importance. A third limit was institutional: to exclude domestically focused agencies from the ambit of “diplomacy,” such that Congress could exercise its usual level of control with respect to their activities abroad and with respect to how they interfaced with other executive branch actors regarding international engagement. A fourth limit developed from the rise of international organizations, as Congress initially claimed and exerted greater control as a price for supporting U.S. entry and participation in these organizations.

This nuanced and complex history has no place in OLC’s current approach to the diplomatic powers. Rather, by selectively invoking early sources and reading them out of context, OLC gives the impression that the exclusivity of the whole bundle of the President’s diplomatic powers is longstanding, firmly settled, and plainly applicable to all forms of modern foreign relations. The Trump administration took this perspective to its logical extreme, repeatedly invoking diplomatic powers in letters objecting to draft bills and in several important refusals to obey congressional mandates.13 13.See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement).Show More Yet while the Trump administration was unusually truculent, its understanding of the diplomatic powers flowed from OLC memoranda written during both Democratic and Republican administrations of the prior few decades that overread sources, ignored historical practice at odds with their positions, and failed to grapple with the profound changes in U.S. international engagement from the time of the Framing to the present.

Given the thin foundations of executive branch claims, congressional power over international engagement is ripe for reinvigoration. The final goal of this Article is to consider how such reinvigoration could be accomplished. This is not an easy avenue of inquiry, and it does not lend itself to any very satisfying solution. Doctrinally, I argue in favor of an intermediate approach between the extreme positions staked out by the executive branch and an alternative of complete congressional supremacy. There are a number of possible ways to accomplish this, and I offer some suggestions in the spirit of opening bids. Specifically, I suggest using two of the lost limits on “diplomacy” to achieve a more tempered balance—limits that draw on historical practice, respond to functional changes in U.S. foreign relations since the Framing, and emphasize the core structural concept of checks and balances. The first is to acknowledge congressional power to set policy objectives at the front end and to mandate certain outcomes at the back end (such as votes cast in international organizations) for negotiations whose outcomes will not otherwise be brought to the Senate or Congress for approval. The second is to treat congressional supremacy over domestic-focused agencies as constant with respect to both the domestic and foreign activities of these agencies. The use of these limits would rein in the risks of runaway presidential power over the content, agents, and information associated with U.S. international engagement.

Especially in the last thirty years, the executive branch has used its institutional power to make constitutional fictions about diplomacy into practical realities. For Congress to regain constitutional clout, it must bring its own institutional power to bear. The groundwork has already been laid by Congress’s repeated willingness to enact statutory provisions asserting control over diplomacy. The challenge for Congress is in getting the executive branch to recognize these provisions as binding as a matter of constitutional law. Broadly speaking, Congress can pursue three strategies towards this end. First, congressional committees can develop their own accounts of the constitutional allocation of the diplomatic powers through hearings and reports. Second, Congress can raise the stakes of executive branch non-compliance through legislative tactics, such as anti-severability provisions that require the executive branch to obey mandates whose constitutionality it questions if it wishes to continue to receive related appropriations. Third, Congress can seek to involve the courts. This last strategy has both the highest risks and rewards and therefore should be pursued with particular care.

I focus in this Article on the distribution of constitutional power with respect to diplomacy, broadly defined. But the account given here contributes more generally to the literature regarding the separation of powers. One contribution goes to the existing literature on the role of OLC. The findings in this Article support those that view OLC as an enabler of exclusive presidential power—and further suggest that the very transparency with which OLC expresses its views helps rather than hinders this enabling. Another contribution is to complicate some core assumptions about the role that historical practice plays in separation-of-powers disputes. While historical practice is often thought to be a tool of presidential power, it is notable how much historical practice there is—albeit uncited by OLC—that supports Congress’s authority to issue mandates with respect to international engagement. This suggests that, as a structural matter, historical practice may favor findings that Congress and the President have concurrent powers rather than findings that either branch has exclusive powers. Finally, this Article serves as a reminder of how much work needs to be done at the intersection of foreign relations law and administrative law. Tropes like “diplomacy” conceal complex questions about the allocation of powers in a world in which there is no robust divide between what is foreign and what is domestic.

The rest of this Article follows the path described above. Part I categorizes the diplomatic powers into five discrete powers—power over representation, recognition, content, agents, and information. Although Congress disputes the executive branch’s claims to exclusive powers over the last three of these powers, the executive branch has institutional advantages that enable it to disregard congressional mandates. Part II shows that OLC has supplemented the breadth that comes with these five powers with depth—by defining “diplomacy” far more broadly than is warranted by evidence from the time of the Framing, historical practice, or structural constitutional principles. It identifies four lost limits on the constitutional concept of “diplomacy,” of which one is structural, one is based in subject matter, one is institutional, and one is tied to the special status of international organizations. Part III proposes a doctrinal allocation that provides more control to Congress and identifies institutional strategies that Congress could deploy to achieve this distribution. It also notes several broader implications that this Article holds for the study of the separation of powers.

This Article focuses on the constitutional conflict between Congress and the Presidency with respect to control over diplomacy. With this focus come inevitable limitations, two of which deserve specific mention. First, some of the power struggles described here—particularly regarding control over agents and information—are entwined with broader constitutional questions about the extent to which Congress can control the structure of the executive branch and demand information from it. I do not address these questions, but rather focus on the extent to which power struggles relating to control over international engagement do or should differ from the broader baseline, whatever it is. The second limitation is that I focus on legal claims rather than on policy outcomes. It is possible and indeed often the case that the executive branch will object on principle to a legislative provision related to diplomacy even where it is either in full agreement with the policy set forth in this provision—or willing to adhere to this policy in practice to placate members of Congress. But while these factors reduce the practical effect of constitutional disagreements, they are not full substitutes for the constitutional allocation of control. One of the many grim lessons left over from the Trump administration is that law rather than norms can be the only boundary between action and constraint.

  1. Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Eliot Engel, Chairman of the H. Comm. on Foreign Affs., and Maxine Waters, Chairwoman of the H. Comm. on Fin. Servs. Regarding H.R. 3843, at 1 (May 18, 2020), https://www.justice.gov/ola/page/file/1277331/download [https://perma.cc/J7UP-9LEU]; Congressionally Mandated Notice Period for Withdrawing from the Open Skies Treaty, 44 Op. O.L.C. __, slip op. at 10–12 (2020), https://www.justice.gov/olc/file/1348136/download [https://perma.cc/5HEZ-3V9D] [hereinafter OLC Opinion of Sept. 22, 2020]; Publication of a Report to the President on the Effect of Automobile and Automobile-Part Imports on the National Security, 44 Op. O.L.C. __, slip op. at 1–2 (2020), https://www.justice.gov/‌olc/opinion/file/1236426/download [https://perma.cc/PQ6K-DY3D] [hereinafter OLC Opinion of Jan. 17, 2020]. ↑
  2. Prohibition of Spending for Engagement of the Off. of Sci. & Tech. Pol’y with China, 35 Op. O.L.C. 116, 120 (2011) [hereinafter OLC Opinion of Sept. 19, 2011]; see also, e.g., Letter from Stephen E. Boyd, Assistant Att’y Gen., U.S. Dep’t of Just., to Jeb Hensarling, Chairman of the H. Comm. on Fin. Servs. Regarding H.R. 4537, at 1 (Mar. 5, 2018) https://www.justice.gov/ola/page/file/1041156/download [https://perma.cc/L3PW-4KYK] [hereinafter DOJ Letter of Mar. 5, 2018] (quoting this language). ↑
  3. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 (1952) (Jackson, J., concurring). ↑
  4. Zivotofsky v. Kerry, 576 U.S. 1, 32 (2015) (holding that the President has the exclusive constitutional power to recognize foreign nations but emphasizing the limited nature of this holding); see also infra Subsection I.A.2 (discussing the implications of Zivotofsky for the allocation of the diplomatic powers more generally). ↑
  5. The approach taken in the two major foreign relations law casebooks is illustrative of the field’s neglect of the diplomatic powers. Both casebooks have voluminous chapters devoted to the treaty powers and the war powers, but neither has even a sub-chapter focused on the diplomatic powers. See Curtis A. Bradley, Ashley Deeks & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, at xi–xviii (7th ed. 2020) (devoting more than 260 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents); Sean D. Murphy, Edward T. Swaine & Ingrid Wuerth, U.S. Foreign Relations Law: Cases, Materials, and Practice Exercises, at xi–xix (5th ed. 2018) (devoting more than 330 pages to treaties, executive agreements, and war powers while not mentioning diplomacy in the table of contents). Even where the concept of diplomacy is emphasized in general treatises, as in Michael Glennon’s work, there is surprisingly little discussion of the constitutional distribution of the diplomatic powers, as distinct from war powers and treaty powers. See generally Michael J. Glennon, Constitutional Diplomacy (1990). An exception in substantial alignment with the executive branch positions described in this Article is H. Jefferson Powell, The President’s Authority over Foreign Affairs: An Essay in Constitutional Interpretation 152–54
    (2002)

    (giving detailed treatment to the President’s power over recognition, negotiation, and diplomatic information in addition to considering other areas of foreign relations law). ↑

  6. For a few excellent pieces focused on aspects of the diplomatic powers, see generally Ryan M. Scoville, Ad Hoc Diplomats, 68 Duke L.J
    .

    907 (2019) [hereinafter Scoville, Ad Hoc Diplomats] (discussing executive branch justifications for the use of non-Senate-confirmed diplomats); Kristina Daugirdas, Congress Underestimated: The Case of the World Bank, 107 Am. J. Int’l L. 517, 519–20 (2013) (describing the historic responsiveness of the Department of the Treasury to congressional directives regarding U.S. participation in the World Bank); Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 Temple L. Rev. 1 (2013) (analyzing historical practice with respect to executive branch claims of an exclusive power to recognize foreign nations); Ryan M. Scoville, Legislative Diplomacy, 112 Mich. L. Rev. 331 (2012) [hereinafter Scoville, Legislative Diplomacy] (assessing the extent to which members of Congress engage in diplomatic activity). This Article draws on the insights of these scholars in providing an overarching description of the diplomatic powers claimed by the executive branch and showing that most of these claims rest on problematic constitutional foundations. One interesting recent article that grapples briefly but significantly with the scope of the exclusive diplomatic powers is Zachary S. Price, Funding Restrictions and Separation of Powers, 71 Vand. L. Rev. 357 (2018). Price suggests that Congress should be able to control the conduct of diplomacy through the appropriations power in certain resource-dependent contexts. See id. at 449–61. ↑

  7. Statement on Signing the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Ronald Reagan Presidential Libr. & Museum (Dec. 22, 1987), https://www.reaganlibrary.gov/archives/speech/statement-signing-foreign-relations-authorization-act-fiscal-years-1988-and-1989 [https://perma.cc/Y33S-2EGX] [hereinafter Reagan 1987 Signing Statement]; see also, e.g., Letter from Prim F. Escalona, Principal Deputy Assistant Att’y Gen., to Ed Royce, Chairman of the H. Comm. on Foreign Affs. Regarding H.R. 5819, at 2 (Oct. 19, 2018), https://www.justice.gov/‌ola/page/‌file/1159456/download [https://perma.cc/F2DL-8G3E] (using similar language). ↑
  8. OLC Opinion of Sept. 19, 2011, supra note 2, at 116. ↑
  9. E.g., DOJ Letter of Mar. 5, 2018, supra note 2, at 2 (asserting that exclusive presidential powers over diplomacy rendered unconstitutional almost every section of a proposed congressional bill regarding the participation of Department of Treasury officials at an international standard-setting organization focused on the regulation of the insurance industry). ↑
  10. OLC Opinion of Sept. 19, 2011, supra note 2, at 121–22 (quotation marks and citations omitted). ↑
  11. See infra note 100 and accompanying text. ↑
  12. For a discussion of the power over implementation, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1707–10 (2017). ↑

  13. See Jean Galbraith and Benjamin Schwartz, The Trump Administration and Executive Power: Evidence from Justice Department Views Letters, Lawfare (Feb. 5, 2019), https://www.lawfareblog.com/trump-administration-and-executive-power-evidence-justice-department-views-letters [https://perma.cc/M2LK-TAB4] (noting that in the first two years of the Trump administration, the Department of Justice sent fifteen letters to Congress raising objections to draft legislation as intruding on the president’s diplomatic powers); OLC Opinion of Sept. 22, 2020, supra note 1, at 2 (invoking the diplomatic powers as a basis for refusing to obey a congressional mandate with respect to treaty withdrawal); OLC Opinion of Jan. 17, 2020, supra note 1, at 1–2 (invoking the diplomatic powers as a basis for refusing to obey a congressional reporting requirement). ↑

Punitive Surveillance

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people of fundamental rights, including privacy, speech, and liberty.

Building on the critique that punitive surveillance is a form of racialized carceral control, this Article makes three contributions: First, drawing on original empirical research of almost 250 public agency records governing the operation of electronic ankle monitoring, this Article reveals non-obvious ways that punitive surveillance, like incarceration, strips people of basic rights and liberties. In particular, the records show how monitoring restricts movement, limits privacy, undermines family and social relationships, jeopardizes financial security, and results in repeated loss of freedom. Unlike traditional probation and parole, punitive surveillance is more intensive, restrictive, and dependent on private surveillance companies. Second, this Article explains how, and why, courts’ labeling of such surveillance as a “condition” of punishment or a regulatory measure stems from a misunderstanding of this surveillance and punishment jurisprudence. Third, and most ambitiously, this Article raises the question of whether a fundamental rights analysis, a regulatory response, or an abolitionist approach is the most effective way of limiting—if not outright eliminating—punitive surveillance.

Introduction

Four months before he was killed by police in Atlanta in June 2020, Rayshard Brooks spoke in an interview about his time on probation and an electronic ankle monitor.1 1.Sam Hotchkiss, Rayshard Brooks: In His Own Words, Reconnect (June 17, 2020), https://reconnect.io/rayshard-brooks-in-his-own-words [https://perma.cc/8HQS-BR7S].Show More Mr. Brooks explained that monitoring and probation made it “impossible” to lead his life and made him feel like an animal.2 2.Randi Kaye, Rayshard Brooks Opened Up About the Struggles of Life After Incarceration in an Interview Before His Death, CNN (June 17, 2020), https://www.cnn.com/‌2020/06/17/us/rayshard-brooks-interview-reconnect-life-after-incarceration/index.html [https://perma.cc/2JCD-UXN6].Show More Wearing a monitor was stigmatizing, making it hard for him to get a job and provide for his three children and wife.3 3.Hotchkiss, supra note 1.Show More While his name is now synonymous with the brutality of police killings of unarmed Black men, it might also be a reminder of the burden of living under criminal court control.

Mr. Brooks’ experience echoes the reality of hundreds of thousands of people in the American criminal legal system who are ordered to wear GPS- and microphone-equipped ankle monitors that record and broadcast their physical location, provide DNA samples, and submit to suspicionless searches of their electronic devices. This particular type of surveillance—what I term “punitive surveillance”—is a form of incarceration facilitated by invasive technology and for-profit companies. To be sure, many other forms of state surveillance are also punitive and restrictive, but this Article focuses specifically on the ways that the criminal legal system uses technology as a form of incarceration. Drawing on original empirical research of almost 250 state and local policies governing electronic monitoring of people on court supervision, this Article exposes the extent to which punitive surveillance, like physical incarceration, limits—and sometimes outright extinguishes—a person’s basic constitutional rights, such as speech, movement, and assembly.4 4.Kate Weisburd, Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System (Geo. Wash. U. L. Sch. 2021) [hereinafter Electronic Prisons], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930296 [https://perma.cc/E469-GMU8].Show More

Fueled by the COVID-19 pandemic and increasingly bipartisan support for decarceration efforts, punitive surveillance is often touted as a humane alternative to incarceration and is expanding substantially with little oversight or regulation.5 5.See Cara Tabachnick, Covid-19 Created a Bigger Market for Electronic Ankle Monitors,Bloomberg L. (July 14, 2020), https://www.bloomberg.com/news/articles/2020-07-14/coronavirus-creates-big-market-for-electronic-ankle-monitors [https://perma.cc/6GVY-CXZG] (estimating that there were 25% to 30% more people wearing electronic monitors worldwide in July 2020 than a few months prior); Eli Hager, Where Coronavirus Is Surging—and Electronic Surveillance, Too, Marshall Project (Nov. 22, 2020), https://www.themarshallproject.org/2020/11/22/where-coronavirus-is-surging-and-electronic-surveillance-too [https://perma.cc/7UEX-ZYYX] (“In Chicago, . . . the number of people on electronic monitoring jumped from 2,417 before the pandemic to 3,365 by mid-June . . . .”); Jenifer B. McKim, ‘Electronic Shackles’: Use of GPS Monitors Skyrockets in Massachusetts Justice System, GBH News (Aug. 10, 2020), https://www.wgbh.org/news/local-news/2020/08/10/electronic-shackles-use-of-gps-monitors-skyrockets-in-massachusetts-justice-system [https://perma.cc/SJE3-3GLS] (quoting a Massachusetts Parole Board official advocating for expanded use of GPS devices as a strategy “balancing the interests of public safety, accountability, and release from incarceration”).Show More The diminishment of rights that accompanies punitive surveillance is generally seen as the reasonable price someone pays to avoid incarceration, as is true with other forms of court supervision.6 6.This position is advanced by commentators, courts, and scholars alike. See, e.g., Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1398 (2014) (suggesting that monitoring offers “a fairer, more effective, and more efficient alternative to money bail”); United States v. Barnett, 415 F.3d 690, 691–92 (7th Cir. 2005) (finding that “a blanket waiver of Fourth Amendment rights” was valid because “imprisonment is a greater invasion of personal privacy than being exposed to searches of one’s home on demand”); People v. Nachbar, 3 Cal. App. 5th Supp. 1122, 1129 (Cal. Ct. App. 2016) (upholding electronic search condition on grounds that defendant “accepted probation in lieu of additional punishment”); United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969) (explaining that defendant “could have rejected probation and elected prison” and that, having “chose[n] to enjoy the benefits of probation,” the defendant had to “endure its restrictions”); Schacht v. United States, rev’d on other grounds, 398 U.S. 58 (1970); Editorial Board, Editorial: New App-Based Defendant-Monitoring Program Is a Promising Alternative to Bail, St. Louis Post-Dispatch (Jan. 21, 2020), https://www.stltoday.com/opinion/editorial/editorial-new-app-based-defendant-monitoring-program-is-a-promising-alternative-to-bail/article_7466fc29-ef8e-5875-8567-3372b8a904ff.html [https://perma.cc/TT96-6UN2] (referring to a new electronic monitoring program as an “effective but less intrusive” alternative to money bail that “appears to address more concerns than it creates”).Show More

Yet there is a limit on the erosion of rights that accompanies punishment. In the United States, citizenship is defined by the “right to have rights[,]” and it is “not a license that expires upon misbehavior.”7 7.Trop v. Dulles, 356 U.S. 86, 92, 102 (1958).Show More Punitive surveillance, however, reveals a significant but undertheorized gap in punishment jurisprudence: how to define, regulate, and limit punitive and carceral experiences that do not occur behind prison walls. Beyond the Eighth Amendment and the Ex Post Facto Clause, there are no obvious backstops on the erosion of fundamental rights and liberties that are part and parcel of punitive surveillance.8 8.See generally Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887 (2014) (describing the erosion of constitutional rights of people on parole).Show More

The lack of a more robust and coherent jurisprudence may stem from the general perception that people subject to punitive surveillance would otherwise be incarcerated, where the deprivation of fundamental rights is greater. There is no empirical evidence, however, that monitoring is consistently used as an alternative to incarceration.9 9.See Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 740, 745–46 (2020) [hereinafter Weisburd, Sentenced to Surveillance]; Avlana K. Eisenberg, Mass Monitoring, 90 S. Cal. L. Rev. 123, 157 (2017); Gabriela Kirk, The Limits of Expectations and the Minimization of Collateral Consequences: The Experience of Electronic Home Monitoring, 68 Soc. Probs. 642, 644 (2021).Show More In a world without monitors, perhaps some people would otherwise be incarcerated, but many would (or should) not be.10 10.Maya Schenwar & Victoria Law, Prison by Any Other Name: The Harmful Consequences of Popular Reforms 30 (2020); Christine S. Scott-Hayward & Erin Eife, Correctional and Sentencing Law Commentary: Electronic Monitoring, 57 Crim. L. Bull. (2021).Show More In practice, punitive surveillance is often part of criminal punishment, imposed on top of probation, parole or supervised release.11 11.See Weisburd, Sentenced to Surveillance, supra note 9, at 741; Schenwar & Law, supra note 10, at 30–32; see infraSection I.A.Show More It is almost never a tradeoff between one day of electronic monitoring versus one day in prison—it is most often both for varying amounts of time.12 12.See Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1323 (2008) (critiquing the use of a one-to-one tradeoff to evaluate purported alternatives to physical incarceration).Show More

Likewise, even if monitoring were used as a genuine alternative to incarceration, the alternative remains “a form of coded inequity and carceral control.”13 13.Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code 167 (2019).Show More As Professor Michelle Alexander explains, “digital prisons are to mass incarceration what Jim Crow was to slavery.”14 14.Michelle Alexander,Opinion, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html [https://perma.cc/45J8-TZVG].Show More Simply because an enslaved person would choose to live with their families, albeit subject to “whites only signs” and segregation, does not justify Jim Crow.15 15.Id.Show More The same can be said about the choice between incarceration and punitive surveillance.

Punitive surveillance has become not so much an actual alternative to incarceration, but rather an “alternative form of incarceration.”16 16.See James Kilgore, Let’s Fight for Freedom from Electronic Monitors and E-Carceration, Truthout (Sept. 4, 2019), https://truthout.org/articles/lets-fight-for-freedom-from-electronic-monitors-and-e-carceration [https://perma.cc/YBE2-Y4P7].Show More As the empirical findings in this Article demonstrate, the carceral experience is no longer defined by physical walls and prison bars. And as incarceration increasingly operates outside of physical prisons, the punishment landscape is shifting.

This Article reveals three growing, but underappreciated, fissures in punishment jurisprudence. First, treating punitive surveillance as a condition of punishment (as compared to punishment itself) that need only be “reasonably related” to a purpose of punishment is inaccurate and relies on circular logic that almost always results in a finding of constitutionality.17 17.See infra Section III.A.Show More Second, treating punitive surveillance as a regulatory measure (akin to collateral consequences or civil restraints) is often inapplicable and inappropriately removes it from Eighth Amendment and Ex Post Facto Clause protections.18 18.See infraSection III.B.Show More Finally, treating punitive surveillance as punishment (which it is) also does little to limit its scope and impact.19 19.See infra Section III.C.Show More

As a result of these fissures, punitive surveillance has escaped meaningful scrutiny. Given the importance of the rights at stake, and that those most impacted—people convicted of crimes—are also the most disenfranchised,20 20.See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that the Equal Protection Clause does not prohibit excluding people convicted of felonies from voting).Show More closer scrutiny is critical.21 21.See Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 Suffolk U. L. Rev. 441, 459–61 (1999) (making the case for closer judicial review of the abridgment of rights for people in prisons and other institutions).Show More A small number of judges, community organizers, and scholars, myself included, have critiqued punitive surveillance on privacy and dignity grounds, as well as the ways it reproduces race and class subordination.22 22.See, e.g.,United States v. Polouizzi, 697 F. Supp. 2d 381, 389 (E.D.N.Y. 2010) (“Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person . . . as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.”); see also Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 675 (2019) (raising the concern that correctional electronic surveillance poses the risk of further social marginalization); Catherine Crump, Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice, 53 U.C. Davis L. Rev. 795, 798–99 (2019) (questioning the suitability of electronic monitoring for juveniles); Eisenberg, supranote 9, at 174 (suggesting that monitoring programs may have a disproportionate effect on the poor); Weisburd, Sentenced to Surveillance, supranote 9, at 759–60 (linking electronic monitoring to historical racialized means of control); Ben A. McJunkin & J.J. Prescott, Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders, 21 New Crim. L. Rev. 379, 419 (2018) (rejecting the idea that labeling monitoring as “punishment” reduces a monitored person’s privacy interest); Kate Weisburd, Monitoring Youth: The Collision of Rights and Rehabilitation, 101 Iowa L. Rev. 297, 303 (2015) (discussing how monitoring negatively impacts young people); Murphy, supra note 12, at 1323 (addressing the dignity harms imposed by monitoring); James Kilgore & Emmett Sanders, Ankle Monitors Aren’t Humane. They’re Another Kind of Jail, Wired (Aug. 4, 2018), https://www.wired.com/story/opinion-ankle-monitors-are-another-kind-of-jail [https://perma.cc/X3NU-7F7F] (similarly elaborating on the lesser-known ways that electronic monitoring erodes one’s rights).Show More This Article builds on those critiques by addressing the range of fundamental rights that are abridged or extinguished by punitive surveillance,23 23.See Jacobi, Richardson & Barr, supra note 8, at 887.Show More and the ways in which it reproduces the prison experience, even if to a lesser degree.

This Article proceeds in four parts. Drawing on the findings of original empirical research, Part I reveals how punitive surveillance operates, characterized by invasive technology, restrictive rules, lack of transparency, and the power of third parties, including government agencies and for-profit companies. Part II details the ways that the privacy, speech, liberty, and due process limitations are similar in kind, if not degree, to prison restrictions. Part III addresses doctrinal infirmities and explains that punitive surveillance is neither a regulatory restraint nor a condition of punishment, but rather, is correctly characterized as punishment itself. Part IV evaluates available constitutional and regulatory limits on punishment that occur outside of prison walls, while also cautioning that reform risks legitimating punitive surveillance and undermining abolition efforts.

  1. Sam Hotchkiss, Rayshard Brooks: In His Own Words, Reconnect (June 17, 2020), https://reconnect.io/rayshard-brooks-in-his-own-words [https://perma.cc/8HQS-BR7S]. ↑
  2. Randi Kaye, Rayshard Brooks Opened Up About the Struggles of Life After Incarceration in an Interview Before His Death,
    CNN

    (June 17, 2020), https://www.cnn.com/‌2020/06/17/us/rayshard-brooks-interview-reconnect-life-after-incarceration/index.html [https://perma.cc/2JCD-UXN6]. ↑

  3. Hotchkiss, supra note 1. ↑
  4. Kate Weisburd, Electronic Prisons: The Operation of Ankle Monitoring in the Criminal Legal System (Geo. Wash. U. L. Sch. 2021) [hereinafter Electronic Prisons], https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3930296 [https://perma.cc/E469-GMU8]. ↑
  5. See Cara Tabachnick, Covid-19 Created a Bigger Market for Electronic Ankle Monitors, Bloomberg L. (July 14, 2020), https://www.bloomberg.com/news/articles/2020-07-14/coronavirus-creates-big-market-for-electronic-ankle-monitors [https://perma.cc/6GVY-CXZG] (estimating that there were 25% to 30% more people wearing electronic monitors worldwide in July 2020 than a few months prior); Eli Hager, Where Coronavirus Is Surging—and Electronic Surveillance, Too, Marshall Project (Nov. 22, 2020), https://www.themarshallproject.org/2020/11/22/where-coronavirus-is-surging-and-electronic-surveillance-too [https://perma.cc/7UEX-ZYYX] (“In Chicago, . . . the number of people on electronic monitoring jumped from 2,417 before the pandemic to 3,365 by mid-June . . . .”); Jenifer B. McKim, ‘Electronic Shackles’: Use of GPS Monitors Skyrockets in Massachusetts Justice System, GBH News (Aug. 10, 2020), https://www.wgbh.org/news/local-news/2020/08/10/electronic-shackles-use-of-gps-monitors-skyrockets-in-massachusetts-justice-system [https://perma.cc/SJE3-3GLS] (quoting a Massachusetts Parole Board official advocating for expanded use of GPS devices as a strategy “balancing the interests of public safety, accountability, and release from incarceration”). ↑
  6. This position is advanced by commentators, courts, and scholars alike. See, e.g., Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L.J. 1344, 1398 (2014) (suggesting that monitoring offers “a fairer, more effective, and more efficient alternative to money bail”); United States v. Barnett, 415 F.3d 690, 691–92 (7th Cir. 2005) (finding that “a blanket waiver of Fourth Amendment rights” was valid because “imprisonment is a greater invasion of personal privacy than being exposed to searches of one’s home on demand”); People v. Nachbar, 3 Cal. App. 5th Supp. 1122, 1129 (Cal. Ct. App. 2016) (upholding electronic search condition on grounds that defendant “accepted probation in lieu of additional punishment”); United States v. Smith, 414 F.2d 630, 636 (5th Cir. 1969) (explaining that defendant “could have rejected probation and elected prison” and that, having “chose[n] to enjoy the benefits of probation,” the defendant had to “endure its restrictions”); Schacht v. United States, rev’d on other grounds, 398 U.S. 58 (1970); Editorial Board, Editorial: New App-Based Defendant-Monitoring Program Is a Promising Alternative to Bail, St. Louis Post-Dispatch (Jan. 21, 2020), https://www.stltoday.com/opinion/editorial/editorial-new-app-based-defendant-monitoring-program-is-a-promising-alternative-to-bail/article_7466fc29-ef8e-5875-8567-3372b8a904ff.html [https://perma.cc/TT96-6UN2] (referring to a new electronic monitoring program as an “effective but less intrusive” alternative to money bail that “appears to address more concerns than it creates”). ↑
  7. Trop v. Dulles, 356 U.S. 86, 92, 102 (1958). ↑
  8. See generally Tonja Jacobi, Song Richardson & Gregory Barr, The Attrition of Rights Under Parole, 87 S. Cal. L. Rev. 887 (2014) (describing the erosion of constitutional rights of people on parole). ↑
  9. See Kate Weisburd, Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring, 98 N.C. L. Rev. 717, 740, 745–46 (2020) [hereinafter Weisburd, Sentenced to Surveillance]; Avlana K. Eisenberg, Mass Monitoring, 90 S. Cal. L. Rev. 123, 157 (2017); Gabriela Kirk, The Limits of Expectations and the Minimization of Collateral Consequences: The Experience of Electronic Home Monitoring, 68 Soc. Probs. 642, 644 (2021). ↑
  10. Maya Schenwar & Victoria Law, Prison by Any Other Name: The Harmful Consequences of Popular Reforms 30 (2020); Christine S. Scott-Hayward & Erin Eife, Correctional and Sentencing Law Commentary: Electronic Monitoring, 57 Crim. L. Bull. (2021). ↑
  11. See Weisburd, Sentenced to Surveillance, supra note 9, at 741; Schenwar & Law, supra note 10, at 30–32; see infra Section I.A. ↑
  12. See Erin Murphy, Paradigms of Restraint, 57 Duke L.J. 1321, 1323 (2008) (critiquing the use of a one-to-one tradeoff to evaluate purported alternatives to physical incarceration). ↑
  13. Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code 167 (2019). ↑
  14. Michelle Alexander, Opinion, The Newest Jim Crow, N.Y. Times (Nov. 8, 2018), https://www.nytimes.com/2018/11/08/opinion/sunday/criminal-justice-reforms-race-technology.html [https://perma.cc/45J8-TZVG]. ↑
  15. Id. ↑
  16. See James Kilgore, Let’s Fight for Freedom from Electronic Monitors and E-Carceration, Truthout (Sept. 4, 2019), https://truthout.org/articles/lets-fight-for-freedom-from-electronic-monitors-and-e-carceration [https://perma.cc/YBE2-Y4P7]. ↑
  17. See infra Section III.A. ↑
  18. See infra Section III.B. ↑
  19. See infra Section III.C. ↑
  20. See Richardson v. Ramirez, 418 U.S. 24, 56 (1974) (holding that the Equal Protection Clause does not prohibit excluding people convicted of felonies from voting). ↑
  21. See Erwin Chemerinsky, The Constitution in Authoritarian Institutions, 32 Suffolk U. L. Rev. 441, 459–61 (1999) (making the case for closer judicial review of the abridgment of rights for people in prisons and other institutions). ↑
  22. See, e.g.,United States v. Polouizzi, 697 F. Supp. 2d 381, 389 (E.D.N.Y. 2010) (“Required wearing of an electronic bracelet, every minute of every day, with the government capable of tracking a person . . . as if he were a feral animal would be considered a serious limitation on freedom by most liberty-loving Americans.”); see also Chaz Arnett, From Decarceration to E-Carceration, 41 Cardozo L. Rev. 641, 675 (2019) (raising the concern that correctional electronic surveillance poses the risk of further social marginalization); Catherine Crump, Tracking the Trackers: An Examination of Electronic Monitoring of Youth in Practice, 53 U.C. Davis L. Rev. 795, 798–99 (2019) (questioning the suitability of electronic monitoring for juveniles); Eisenberg, supranote 9, at 174 (suggesting that monitoring programs may have a disproportionate effect on the poor); Weisburd, Sentenced to Surveillance, supranote 9, at 759–60 (linking electronic monitoring to historical racialized means of control); Ben A. McJunkin & J.J. Prescott, Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders, 21 New Crim. L. Rev. 379, 419 (2018) (rejecting the idea that labeling monitoring as “punishment” reduces a monitored person’s privacy interest); Kate Weisburd, Monitoring Youth: The Collision of Rights and Rehabilitation, 101 Iowa L. Rev. 297, 303 (2015) (discussing how monitoring negatively impacts young people); Murphy, supra note 12, at 1323 (addressing the dignity harms imposed by monitoring); James Kilgore & Emmett Sanders, Ankle Monitors Aren’t Humane. They’re Another Kind of Jail, Wired (Aug. 4, 2018), https://www.wired.com/story/opinion-ankle-monitors-are-another-kind-of-jail [https://perma.cc/X3NU-7F7F] (similarly elaborating on the lesser-known ways that electronic monitoring erodes one’s rights). ↑

  23. See Jacobi, Richardson & Barr, supra note 8, at 887. ↑

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). ↑

©Virginia Law Review Association. All rights reserved.