Volume 111

Shamed

Victims of rape, sexual assault, and sexual abuse have long had to contend with victim blaming and victim shaming. While legal scholars have had fruitful and theoretically engaging debates regarding the validity and merits of shaming sanctions and shaming criminal defendants, there has been precious little written about the shame that victims face, let alone a recognition that their interaction with shame as both a social force and an emotion is multidimensional. In a previous piece titled “Ruined,” I examined the language judges use during sentencing hearings in sexual assault cases to describe victims, such as pronouncing them “broken,” “ruined,” or “destroyed.” This Article serves as a continuation of the inquiry I started in “Ruined” by expanding in focus. It seeks to differentiate between the related concepts of shame and stigma and explain why shaming of rape victims is so common. I propose a novel typology with which to examine a rape victim’s experience and separate the shame that victims are made to feel by the criminal adjudicative process, the shame victims are supposed to perform, and the shame victims are supposed to feel into discrete components, revealing that shame in relation to such victims is multilayered and much more complex than legal scholarship has made it out to be. Even outside of the law of rape and sexual assault, this typology has potential broader applicability in criminal law and other fields of legal practice.

I share my own experiences with each of these manifestations of shame to demonstrate the usefulness of my new typology. I also relate how I have felt ashamed to come forward with my story as a practicing attorney as well as my experiences of being shamed in the legal academy. I conclude, however, with a note of optimism, reflecting on the positive things to have come with my very public self-disclosure of being a rape and sexual abuse victim and hoping to encourage others to employ personal narrative and auto-ethnographic methods in their own scholarship, as well.

Introduction

In the Getty Center in the Brentwood neighborhood of Los Angeles hangs a depiction of Lucretia painted by Italian Baroque painter Artemisia Gentileschi sometime around 1627.1 1.Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR].Show MoreAs depicted by Gentileschi, Lucretia is obviously a noblewoman of some sort. She wears pearls not just as earrings but strung throughout her hair. Her shoulders are draped in a diaphanous, light white fabric that appears to be tulle. She gazes to the upper right corner of the frame with a plaintive look on her face. In her right hand, she holds a dagger with a silver blade. The end of the dagger’s hilt appears to be gold, ending in the small figure of an animal, maybe a rabbit. She points the dagger to her chest. According to legend, Lucretia, the faithful wife of Lucius Tarquinius Collatinus, was raped by Sextus Tarquinius, the son of the King of Rome.2 2.Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024).Show MoreBefore stabbing herself to death, she “called on her father and her husband [to exact] vengeance” for this wrong.3 3.Id.Show MoreThe legend goes that anger over Lucretia’s death led to the fall of the Roman monarchy and the establishment of the Roman Republic.4 4.Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024).Show More

Artemisia Gentileschi, Lucretia (c. 1627)

A painting of a person holding a knife AI-generated content may be incorrect.

There have been many depictions of Lucretia over many hundreds of years.5 5.See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia).Show MoreYet this depiction of her by Gentileschi is the one that I, as a rape victim, have always found most relatable. It focuses exclusively on Lucretia and her anguish rather than on the political ramifications of her death. Perhaps this empathy with Lucretia’s plight makes sense on the part of the artist, given that Gentileschi was raped by the artist Agostino Tassi when she was seventeen.6 6.Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV].Show MoreWhile Tassi initially promised to marry Gentileschi, he later refused, leading Gentileschi to report what happened to her father, Orazio.7 7.Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985).Show MoreAt the time, “rape was viewed more as a crime against a family’s honor than as a violation of a woman,” and it was Orazio, rather than Gentileschi herself, who pressed charges against Tassi.8 8.O’Neill, supra note 6.Show MoreThe trial took more than half a year.9 9.Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century J.47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id.Show MoreGentileschi testified at the trial while tortured, purportedly to assure the truthfulness of her testimony.10 10.O’Neill, supra note 6.Show MoreAs she was put to thumbscrews, she exclaimed to Tassi, “This is the ring you give me, and these are your promises[!]”11 11.Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)).Show More

Perhaps to today’s reader, both stories—Lucretia’s and Gentileschi’s—sound remote and archaic. There is, however, a long association between those attempting suicide and those reporting histories of sexual assault.12 12.Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996).Show MoreBy one estimate, rape victims are 4.1 times more likely to contemplate suicide and are 13 times more likely to attempt suicide compared to non-victims.13 13.Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992).Show MoreMoreover, while victims no longer face physical torture at trial, they may still be tormented in other ways. For example, if victims do not want to testify, they can be threatened with jail time until they do.14 14.See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify).Show MoreThose that do testify risk being discredited or degraded and may have their experiences essentialized.15 15.See infra Part II.Show More

Victims of sexual assault continue to be shamed in a multitude of ways today. This Article introduces a typology of shame to consider when thinking about how victims are treated by the legal system and subjected to shaming through those mechanisms: the shame that victims feel or are made to feel by both investigations and proceedings in court, the shame that victims are supposed to perform for others, and the shame that victims are supposed to feel.

The title of my previous article addressing the language used by judges during sentencing in sexual assault cases is “Ruined.”16 16.Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022).Show MoreThe reason there are quotation marks around that title is the basis for the argument of the paper itself; while judges may wish to pronounce rape victims “ruined,” it is the victims themselves who should be allowed to determine and pronounce their own fate.17 17.See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood).Show MoreBut with the title of this paper, Shamed, I dispense with those quotation marks, not because victims should be ashamed of the harm that has been done to them, but because attempts to shame victims are real. They are pervasive. And they are harmful, even when such attempts are not immediately apparent. Shaming of sexual assault victims exists in police investigations, courtrooms, interpersonal relationships, and even within written laws. Not only have I been shamed, but I have shamed others in the course of prosecuting sexual assault cases. As Robert Cover has explained, “interpretive act[s]” on the part of judges are themselves “violent deed[s]” that both “authorize[] and legitim[ize]” acts of violence.18 18.See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986).Show MoreLegal interpretation “depends upon the social practice of violence” to be effective.19 19.Id. at 1613.Show More

This Article considers the existence of shame and its operationalization in the law in relation to rape and sexual assault. Shame itself is its own social sanction, and shaming is its own social practice. While judges and perhaps prosecutors attempt to use shame against sexual offenders as a legal sanction, shame is, primarily, a social sanction. Shame itself is about enforcing social norms, and so many of those norms enshrined in the law and larger culture are harmful and regressive when it comes to sexual assault.

I intend to consider shame—the concept and its operation—more closely in this Article at different junctures in the law and in society than I considered in “Ruined.” While other scholarship has also examined shame as well as shaming sanctions, this Article is unique in relating many of my own experiences of being shamed and wielding shame as a child, as a young female prosecutor, and especially, as a law professor and legal scholar. From this perspective, I also examine different forms of sexual assault shaming in legal professional spheres.

At multiple prosecution trainings early in my career, I and everyone else in the audience were informed that people (usually, specifically women) who have gone through sexual assault should never work on sexual assault cases because they would be too “biased” and would lack the objectivity to do the job well—that somehow victims of sexual assault would be overtaken by their emotions to the point of rendering them ineffective.20 20.When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny.Show MoreIn an environment like that one, I certainly did not feel free to come forward with my story for fear that colleagues, law enforcement officers with whom I had to work, and maybe even other victims would judge me as not professionally competent to work on rape and sexual assault cases. When Kim Foxx, former Cook County, Illinois, State’s Attorney (the equivalent office of an elected District Attorney), came forward as a victim of child sexual abuse21 21.Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH].Show Moreand rape as a college student,22 22.Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2].Show More her objectivity and professional competency were privately questioned in a way unlikely to have happened if she had been the victim of a less stigmatized crime like burglary. Coming forward as a victim of sexual assault seems to flout many long-established trappings of respectability in the legal profession.

I have also experienced this professional shaming to some extent after writing, publishing, and presenting my recent article, “Ruined.” While the vast majority of the feedback that I have received has been encouraging and substantive, some of it has been very similar to what I heard as a prosecutor working on sexual assault cases. For example, I have had people praise my article, then abruptly ask if it was embarrassing to have it appear online or in print. I had a fellow law professor at a regional workshop critique the work on grounds that he felt he could not critique it at all, contending that I had rendered my arguments unassailable from normal inquiry because I had shared my story. In that sense, he performed a very similar maneuver to that which I heard in prosecution trainings and to that which Kim Foxx has faced—arguing that my experience has somehow rendered me unable to do my job well or even properly, and that it might have been better if I had never talked about it at all. Yet another couple of professors have told me that they refused to read the piece because they found the premise of another law professor sharing such a story too “uncomfortable.”

Law professors do not like being uncomfortable. Sure, they may enjoy being intellectually challenged; they may even enjoy arguing with each other over philosophical differences, interpretive differences, or ideological conflicts generally. Some of us may even enjoy debating the nature of legal scholarship—what it is, what it can be, and what it should be. But we do not like being uncomfortable, which is how I think much of my recent scholarship makes people feel. It is not meant to be enjoyable or easy, but rather to embrace the tradition of Martha Fineman and her approach to having “uncomfortable conversations.”23 23.Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009).Show MoreThis is the sort of discomfort that has led some law professors to stop teaching rape and sexual assault law in their first-year criminal law courses.24 24.Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law.Show MoreThese uncomfortable conversations, however, need to be had, and I think by not having them, we do our students, the legal profession, and even ourselves a great disservice.

Part I of this Article starts by defining (or attempting to define) shame while distinguishing it from the related concept of stigma. It answers questions regarding why people engage in shaming victims, specifically those who have been raped or sexually assaulted. It also presents historical examples of shaming to demonstrate that the shame that is heaped upon victims today is of a long historical, cultural, and legal lineage. Not only does Part I explore examples of this shaming in the law, but it also offers a sampling of examples from literature, art, and popular culture to show just how pervasive this phenomenon is. Part II examines current ways that victims are shamed specifically by the criminal legal system, introducing a typology of shame and shaming that is the first of its kind in legal scholarship. Part III examines shaming in professional settings, particularly in the legal profession and in legal academia. It reflects on my experiences writing and publishing “Ruined” and scrutinizes what certain pedagogical choices in the criminal law classroom communicate to students. In that sense, it looks at shame in the larger legal and law school cultural environment. The Article closes by advocating for having the uncomfortable conversations that can push back against the shaming with which I and this Article take issue.

  1.  Artemisia Gentileschi, Lucretia, c. 1627, oil on canvas, 92.9 × 72.7 cm, Getty Center, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT2Q-VJQR]. ↑
  2.  Lucretia, Getty, https://www.getty.edu/art/collection/object/109Q8G [https://perma.cc/BT‌2Q-VJQR] (last visited Nov. 11, 2024). ↑
  3.  Id. ↑
  4.  Virginia Gorlinski, Lucretia, Encyc. Britannica, https://www.britannica.com/topic/Lucreti‌a-ancient-Roman-heroine [https://perma.cc/TJE9-VXGN] (last visited Nov. 11, 2024). ↑
  5.  See Natasha H. Arora, Lucretia’s Many Bodies Through the Ages, Art & Object (Dec. 15, 2022), https://www.artandobject.com/news/lucretias-many-bodies-through-ages [https://per‌ma.cc/BS2X-LKTW] (discussing various artistic depictions of Lucretia). ↑
  6.  Mary O’Neill, Artemisia’s Moment, Smithsonian Mag. (May 2002), https://www.smithso‌nianmag.com/arts-culture/artemisias-moment-62150147/ [https://perma.cc/H6B8-GQRV]. ↑
  7.  Joseph Wm. Slap, Artemisia Gentileschi: Further Notes, 42 Am. Imago 335, 337 (1985). ↑
  8.  O’Neill, supra note 6. ↑
  9.  Elizabeth S. Cohen, The Trials of Artemisia Gentileschi: A Rape as History, 31 Sixteenth Century
    J.

    47, 49 (2000). This does not mean, however, that it was a trial in the sense with which we would be familiar today. Rather, “[t]he trial dragged on through seven months of intermittent interrogations and legal maneuvers. During at least the first six weeks, there continued private negotiations toward a settlement ending in marriage.” Id. ↑

  10.  O’Neill, supra note 6. ↑
  11.  Slap, supra note 7, at 337 (quoting Rudolf Wittkower & Margot Wittkower, Born Under Saturn: The Character and Conduct of Artists 162 (1963)). ↑
  12.  Jonathan R.T. Davidson, Dana C. Hughes, Linda K. George & Dan G. Blazer, The Association of Sexual Assault and Attempted Suicide Within the Community, 53 Archives Gen. Psychiatry 550, 550 (1996). ↑
  13.  Dean G. Kilpatrick, Christine N. Edmunds & Anne Seymour, Nat’l Victim Ctr. & Crime Victims Rsch. & Treatment Ctr., Rape in America: A Report to the Nation 7 (1992). ↑
  14.  See Sexual Assault Kit Initiative & RTI Int’l, “Next-Level” Compulsion of Victim Testimony in Crimes of Sexual Violence Against Adults: Prosecutorial Considerations Before Using Bench Warrants/Body Attachments and Material Witness Warrants 2–3 (2022), https://sakitta.org/toolkit/docs/14451SAKINextLevelComplsnVctmTstmny.pdf [https://perm‌a.cc/T5ZT-Z8JR] (discussing the challenges victims of sexual assault may face if held in contempt for not complying with an order to testify). ↑
  15.  See infra Part II. ↑
  16.  Maybell Romero, “Ruined,” 111 Geo. L.J. 237 (2022). ↑
  17.  See generally id. (arguing that a judge’s pronouncement of a victim as “ruined” is stigmatizing and perpetuates myths about victimhood). ↑
  18.  See Robert M. Cover, Violence and the Word, 95 Yale L.J. 1601, 1614 (1986). ↑
  19.  Id. at 1613. ↑
  20.  When using the word “ineffective,” I mean it in a much more general sense, rather than as a specific reference to ineffective assistance of counsel as discussed in Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. ↑
  21.  Carol Felsenthal, Kim Foxx Wants to Tell You a Story, Chi. Mag. (Dec. 10, 2018, 12:22 PM), https://www.chicagomag.com/chicago-magazine/january-2019/kim-foxx-wants-t‌o-tell-you-a-story/ [https://perma.cc/ZGE7-JDKH]. ↑
  22.  Carol Thompson & Dorothy Tucker, Kim Foxx Calls Findings Showing as Many as 1 in 3 Black Women in 2022 Were Victims of Crime “Jarring,” CBS News (Dec. 4, 2023, 10:27 PM), https://www.cbsnews.com/chicago/news/kimberly-foxx-findings-black-women-c‌rime-jarring/ [https://perma.cc/V25P-JVH2]. ↑
  23.  Martha Albertson Fineman, Introduction: Feminist and Queer Legal Theory, in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations 1, 1 (Martha Albertson Fineman, Jack E. Jackson & Adam P. Romero eds., 2009). ↑

  24.  Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyorker.com/news/news-desk/trouble-teaching-rape-law. ↑

Partisan Emergencies

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

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

Introduction

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

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

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

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

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

    ↑

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

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

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

    Jan. 6,

    2021

    , at 1, 1

    .

    ↑

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

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

    .

    ↑

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

    The Constitution and Emergencies: Regulating Presidential Emergency Declarations 3 (

    2023);

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

    365, 405 (2021);

    Stein, supra note 12, at 515. ↑

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

  18.  See infra Part II. ↑

Judicial Review of Emergency Powers in Banking and Financial Regulation

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

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

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

Introduction

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

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

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

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

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

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

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