Volume 101

Clean Air Post-Healthcare: The Federalism Limits of the Spending Power and the Future of Environmental Regulation

Modern environmental regulation was born in the 1970s, at a time when federalism limits to congressional power were essentially an afterthought. Since then, U.S. constitutional law has undergone a federalism revival as Justices of the Rehnquist and Roberts Courts have sought to articulate principled limits to the federal power that ballooned during and after the New Deal. Because of federal environmental law’s expansive scope, many commentators have predicted that this growing revolution could soon change the face of federal environmental regulation.

Emblematic of federalism’s shifting landscape is the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, the politically charged controversy challenging the constitutionality of President Barack Obama’s healthcare reform package, the Patient Protection and Affordable Care Act (“PPACA”). While the majority of headlines about the case reported the Court’s dramatic split over whether the controversial “individual mandate” provision was permissible under the Commerce Clause, the less discussed yet perhaps more significant holding concerned the constitutionality of the “Medicaid expansion” and the scope of the Spending Clause. This new gloss on the Spending Clause could “seriously threaten the constitutionality of a broad swath of federal spending legislation,” including environmental laws.

At the top of the endangered statutes list is the Clean Air Act (“CAA”). The CAA, like many environmental statutes, employs a “cooperative federalism” structure that requires states to take responsibility for administering a federal regulatory program. As “Congress’s most aggressive effort to induce state regulation through the use of conditional spending,” the CAA is considered the most vulnerable environmental statute—and perhaps the most vulnerable statute period—to a federalism challenge post-Sebelius. Just as the PPACA conditioned the receipt of existing Medicaid funds on adopting an expanded Medicaid program, the CAA conditions the receipt of some federal highway funds on the implementation of an air pollution control program tightly managed by the Federal Environmental Protection Agency (“EPA”). This “leveraging” of funds from one program to secure compliance for another was a major factor in the Sebelius majority’s conclusion that the PPACA’s Medicaid expansion was unconstitutional. And although federal highway funds make up a much smaller portion of state budgets than does Medicaid assistance, which might indicate less potential for impermissible “coercion,” federal funds do make up a large proportion of states’ transportation budgets.

EPA’s recent greenhouse gas (“GHG”) rulemakings are a prime example of how the CAA may be vulnerable to a Spending Clause challenge. Chief Justice Roberts’s majority opinion in Sebelius pictured conditional spending as a contract with states, suggesting that Congress exceeds the scope of its Spending Clause power when the terms of that contract—of how states participate in the federal program—change drastically in contravention of states’ reasonable expectations. Although the requirements of the CAA are always in flux as EPA crafts national air pollution control policy to conform to new science and changing environmental priorities, the GHG rulemakings represent the largest nonstatutory change in the Act’s scope in its forty-year history.

This Note will explore the implications of the new Spending Clause jurisprudence for the CAA and how the doctrinal trajectory signaled by the Sebelius decision can undermine both the goals of federal environmental policy and those of our system of federalism itself. Many scholars have already offered assessments of the constitutionality of the CAA after Sebelius, and most have concluded that the Act will stand. While this Note will concur with this conclusion, I hope to offer a more detailed look into the operation and effect of the highway funding sanction in Section 179 of the Act and apply Sebelius in the context of EPA’s controversial GHG rulemaking. Most importantly, this Note will point out the danger of injecting a stronger brand of Tenth Amendment federalism into the Court’s Spending Clause jurisprudence and will discuss how Sebelius might signal a dangerous trajectory for environmental policy and cooperative federalism regulatory schemes in general.

The argument will proceed in four parts. Part I will summarize the structure of the CAA and the importance of cooperative federalism within that structure. Part II will then dissect the Court’s Spending Clause precedents in South Dakota v. Dole and Sebelius, and will dig deeper into the concept of “coercion” from those cases. Part III will apply the new Sebelius test to the CAA and EPA’s GHG rulemaking. Finally, Part IV will discuss why this episode in the Court’s federalism revival may hurt environmental policymaking—and may actually marginalize rather than elevate the power of states in our federal system.

Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions

Tunette was a problem student herself, preschool through high school graduation. . . . She remembers being bad. She flipped over a desk in class one time. That happened. But she also remembers that, after getting suspended in preschool, she walked into kindergarten fully convinced the teacher was the enemy. And that never went away. All those times she was suspended, she didn’t come back less angry, ready to obediently follow directions. It was the opposite. Tunette says, ‘I went into kindergarten knowing I was bad. I went into first grade knowing I was terrible. And it just went up from there.’

For students like Tunette, receiving a quality public education is rarely easy. Being poor, speaking another language, and misbehaving all increase the costs of education and provide incentives for schools to exclude students entirely. The Supreme Court issued one potential impediment to schools’ policy of exclusion over thirty years ago in Plyler v. Doe, applying heightened scrutiny to invalidate a Texas law that kept undocumented students out of public schools. The Court’s reasoning suggested the existence of a plausible right of equal access to education under the United States Constitution. Since then, states have attempted to limit this potential right in myriad ways. In some cases, states have gone so far as to directly attack it, passing draconian laws that ban undocumented students from school. For example, in 1994, California voters passed Proposition 187, making it illegal for undocumented students to attend public school. Similarly, in 2011, Alabama passed H.B. 56, requiring parents to report the immigration status of their school-aged children. These laws discouraged parents, fearful of deportation, from sending their children to school. While the exclusion of undocumented students in particular has garnered widespread media coverage, it is far from the only example of school exclusion going on in the United States today. In fact, the hidden excommunication of millions of students who misbehave in classrooms every year gets almost no media attention at all. But it should.

Prior to the 1990s, school districts utilized suspensions and expulsions as a way to address only the most serious offenses, as well as to provide consequences for repeat offenders. Since then, school districts around the country have adopted zero-tolerance policies that “impose[] expulsion or suspension [as a mandatory sanction] for a wide range of . . . conduct,” including trivial offenses such as disrupting class. As a result, by the 2005–2006 school year, more than 3.3 million students were suspended at least once, while over 100,000 students were expelled.

The purported goal of such policies is to maintain the integrity of the learning environment (by, for example, ensuring school safety and protecting academic outcomes for other students) by removing poorly behaved students from class. However, data from the past three decades has demonstrated that such policies are ineffective at achieving either school safety or academic success. For example, throughout the 1980s, 1990s, and early 2000s, school crime rates remained stable, even though suspension rates doubled during the same time period. In other words, school suspensions did not have the effect of increasing school safety. In addition, recent research has found that “a negative relationship [exists] between the use of school suspension and expulsion and school-wide academic achievement, even when controlling for . . . socioeconomic status.” This means that students suffer from poor academic performance at schools with high suspension and expulsion rates. Based on this data, harsh disciplinary policies accomplish little and fail to improve either safety or academic achievement on a school-wide level.

This Note will argue that, following Plyler, public school students have a plausible right of equal access to education under the United States Constitution. In addition to this right, students also benefit from a fundamental right to education in sixteen states. This framework has thus far provided students with some respite from states’ attempts to limit Plyler. However, in states where the right to education is not fundamental, or the status of education has not yet been determined by state supreme courts, school districts regularly violate students’ plausible right of equal access to education in two ways. First, school districts offer no alternative education programs (“AEPs”) during periods of long-term suspension or expulsion. Second, when school districts do offer AEPs, they routinely fail to provide even basic education, which places students at risk of academic failure. Ultimately, long-term suspensions and expulsions mean that many of our nation’s most vulnerable students are not receiving an education. However, as this Note will argue, our federal and state constitutions suggest that they are entitled to one.

In the legal field, little has been written about the implications of Plyler outside the context of undocumented students. The analyses that do exist focus on state and local attempts to limit the rights of undocumented students to attend primary and secondary school. Other studies analyze the limits to higher education that undocumented students face in terms of college admissions and in-state tuition rates. This Note differentiates itself from what the legal field already knows by focusing instead on the interplay between federal and state law to determine how students’ plausible right of equal access to education has been limited in other contexts, specifically school discipline. Such knowledge is worthwhile because it may permit a better understanding of exactly how child advocates can protect their most vulnerable clients from being shut out of the education system altogether. Equipped with this knowledge, school districts can be held accountable for educating all students, even the most behaviorally challenged ones.

To support these claims, this Note will proceed in three parts. Part I will explain the existence of any rights to education in the United States by outlining where possible rights are protected under federal and state law. In Part II, this Note will argue that students who are long-term suspended or expelled are deprived of their rights when states fail to create AEPs at all, or when states provide low-quality AEPs that do not even offer a basic education. Finally, Part III will address the typical school defense that students who misbehave forfeit their right to education.

Reasonable Expectations of Anonymity

New technologies and methods of data analysis are being used by the government to monitor the public in ways that were unimaginable a decade ago. Law enforcement agencies ranging from municipal police forces to the Department of Homeland Security are using tools such as genetic databanks, biometric scanners, roadside cameras, and cell phone metadata analysis to gather detailed information about the lives of individuals who are not suspected of any wrongdoing. The meaningful question in this area is no longer what information the government can obtain about us, but rather what information is beyond its reach.

The reason for this is that the Supreme Court has concluded that the Fourth Amendment’s protections do not apply to any information that has been exposed to the public or third parties. This includes information about our public movements, Internet usage, cell phone calls, and so on. Such information is per se fair game for police collection by any means.

This Article argues that the Court’s conclusion derives from a mistaken conflation of privacy and anonymity, and that understanding the difference between these concepts reveals strong substantive and formal reasons for interpreting the Fourth Amendment to protect not only reasonable expectations of privacy, but also “reasonable expectations of anonymity.” Further, it demonstrates that the incorporation of this new analytic concept into Fourth Amendment jurisprudence yields significant value: first, by identifying otherwise-unrecognizable ways in which new techniques of big data implicate the Constitution, and second, by delivering on the unfulfilled promise of the Supreme Court’s teaching that “the Fourth Amendment protects people, not places.” A more detailed roadmap of this argument follows.

The argument begins, in Part I, with an analysis of the Fourth Amendment right to be free from unreasonable “searches”—a term that the Supreme Court has, ever since Katz v. United States, interpreted to mean violations of reasonable expectations of privacy. The key contribution of this Part is clarifying what the Court means by “privacy” in the Fourth Amendment context, which has been the subject of much confusion in the literature. A close analysis of the case law reveals that the Court has adopted what can be termed an “epistemic,” rather than a normative, conception of privacy. The clarification of this point provides the foundation for a discussion of two doctrines that significantly limit the scope of the Fourth Amendment’s protections: the public exposure and third party doctrines, under which the Supreme Court has concluded that the Fourth Amendment’s protections do not apply to any information that has been exposed to the public or third parties.

The question that motivates this Article is whether the Supreme Court has erred in reaching this conclusion. The dominant view in the privacy scholarship is that the Court has failed to account for the ways in which privacy can exist in degrees. While this critique is correct as far as it goes, this Article demonstrates that it only identifies part of the problem.

The even deeper problem, identified in Part II, is that courts—along with most scholars—have incorrectly assumed that there is only one way of protecting a piece of personal information from public access: the one we call “privacy.” In doing so, they have overlooked a distinct and equally important way of doing so: through anonymity. This oversight derives from the fact that anonymity and privacy have been mistakenly conflated.

An example helps introduce the key distinction that has gone unrecognized. Imagine, for instance, that a person’s medical file contains a piece of paper with the results from his blood test, but his doctor removes the paper and places it in a blank file. If we subsequently obtained access to this person’s medical file, without the test results, we would describe the situation using the concept of privacy: We would say “the privacy of the person is protected,” or “the associated information is private.” If, on the other hand, we obtained access to the test results, without the medical file, we would describe the situation using the concept of anonymity: We would say “the anonymity of the test results is protected,” or “the associated person is anonymous.”

What this example illustrates is two basic points about anonymity and privacy that have been misunderstood. The first is a point about their substantive difference. Although both anonymity and privacy prevent others from gaining access to a piece of personal information, they do so in opposite ways: Privacy involves hiding the information, whereas anonymity involves hiding what makes it personal. The second point is about their formal relationship. Anonymity and privacy have the same causal origin and thus are flip sides of each other: They describe opposite sides of a single underlying event.

This account of the nature of anonymity, when combined with the insight that Katz and its progeny adopt a purely epistemic conception of privacy, has significant legal implications. As identified in the final Section of Part II, it reveals strong substantive and formal reasons for reading the Fourth Amendment to protect not only reasonable expectations of privacy, but also “reasonable expectations of anonymity.”

It is perhaps worth highlighting here that this is not a normative argument about what our constitutional law should be, but rather a legal argument about the best way to interpret the Fourth Amendment precedents that we have. Thus, I do not question whether Katz and its progeny provide the best interpretation of the text of the Fourth Amendment, but rather make a claim about the best reading of this case law, accepting that it provides a controlling reading of the text. Further, and relatedly, I do not question the premise that the Fourth Amendment does not prohibit the government from collecting personal information that has been knowingly exposed to the public, but rather show that this premise does not support the conclusions reached by courts in many of the public exposure cases—that the logic of the public exposure doctrine imposes limits that have not been recognized. This is not to say, however, that my argument is at odds with those of scholars who argue for more radical revisions of Fourth Amendment jurisprudence on normative grounds. Rather, a normative approach might reach the same conclusions on many issues, as will become clear in Part III.

The practical payoff of incorporating the concept of “reasonable expectations of anonymity” into Fourth Amendment jurisprudence is the focus of Part III, which identifies two general dimensions in which it yields significant insights. The first dimension is analytic, where thinking in terms of anonymity identifies otherwise-unrecognizable ways in which many new techniques of big data implicate the Fourth Amendment. This is demonstrated by reference to the question of whether two new techniques of data aggregation and analysis can constitute Fourth Amendment searches. One is a form of genetic identification known as “familial searching,” in which a criminal DNA database is used to identify persons who do not meet the legal criteria for inclusion, but happen to be related to people who do. The other is the use of tools such as biometric-equipped video cameras, GPS, and the metadata from cell phone calls to conduct long-term locational tracking of people’s movements in public.

Both of these techniques have faced significant criticism in the privacy scholarship, and there is language in judicial opinions questioning their legitimacy, but neither the literature nor the judicial opinions have offered a strong legal argument for how they can constitute Fourth Amendment searches. The reason for this is that the constitutional problem cannot be sufficiently explained in terms of privacy.

What is needed is the concept of reasonable expectations of anonymity, which not only reveals the Fourth Amendment interests that are violated by these specific techniques, but also provides a meaningful standard that can be used more generally to determine when data aggregation implicates the Fourth Amendment and when it does not. In these ways, the concept helps solve difficult puzzles left open by the concurring opinions in United States v. Jones.

In addition to providing the analytic power necessary to understand the unconstitutionality of many new techniques of big data, the incorporation of anonymity into Fourth Amendment jurisprudence will help deliver on the unfulfilled promise of the Supreme Court’s teaching that the Fourth Amendment is meant to protect “people, not places.” There are two central ways in which it does so, as the final Section of Part III demonstrates.

The first is by revealing that the structural features of the world that are capable of protecting Fourth Amendment interests are far more complex and expansive than the Supreme Court has recognized. Although the Court has moved beyond a property-based conception of Fourth Amendment interests, the only structural features of the world that the Court has recognized as protecting these interests are those that protect the “privacy” side of secrecy: Homes, car trunks, envelopes, and other containers all hide facts about a person whose identity might be known. Yet the structures that are capable of maintaining the secrecy of “personal information” are not limited to those that hide the piece of information. Rather, as this Article makes clear, they can also include structures that hide what makes that information personal or, in other words, structures that make it anonymous. For example, the size of a city, the layout of its streets, and the presence of crowds can all contribute to making someone’s public actions anonymous. By uncovering the legal significance of these structures, attention to anonymity opens up new types of public spaces to the Fourth Amendment’s protections.

The second and related way in which attention to anonymity can help deliver on the promise of the Fourth Amendment is by expanding the sources of law and norms that can provide the basis for its protections. Although property law is often cited as the quintessential enabling source of law for reasonable expectations of privacy, reasonable expectations of anonymity may be created by sources of law ranging from whistle-blowing statutes and agency law to copyright and the First Amendment, all of which protect anonymity rights. In the First Amendment context, for example, the Supreme Court has held that “an author’s decision to remain anonymous . . . is an aspect of . . . freedom of speech.” Thus, an anonymity-based understanding of Fourth Amendment claims could ground them in new legal and normative foundations, including other constitutionally protected liberties.

Further, these two lessons—along with the other insights of this Article—are not only applicable to the Fourth Amendment. Rather, as suggested in the Conclusion, they are relevant to the many other sources of law that provide legal protection to reasonable expectations of privacy. Across all of these domains, attention to the distinct concept of anonymity can reveal important and viable interests in the secrecy of personal information that have gone unrecognized, clarify new ways in which these interests are being threatened, and provide insights into how they can be better protected by our courts and our law.

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