Border searches are a commonly used exception to the Fourth Amendment’s probable cause and warrant requirements. Using a border search, the government can conduct searches of individuals without any kind of individualized suspicion. Border searches pose a concerning risk to privacy when they are used as a tool for criminal investigations. The Supreme Court has never ruled on searches used in this way, but lower courts are addressing the technique and reaching conflicting decisions. Courts need to take an approach that will protect the privacy interests of individuals while allowing the government to advance its interests in protecting its borders and fighting crime. Courts should adopt a border nexus standard: to be considered a border search, and therefore excepted from probable cause and warrant requirements, the search at a border must have a tie to the historic rationales of border searches or be investigating a transnational crime.
Jacob R. Weaver*
In 2016, the Republican-held Senate refused to hold a hearing on President Barack Obama’s nominee, Merrick Garland, sparking outrage among the Democratic Party.1 Then-Senate Majority Leader Mitch McConnell justified his party’s actions based on what became known as the “McConnell Rule.” This controversial rule holds that during years of presidential elections, when the president and the Senate majority are of different parties, the Senate is not expected to confirm the president’s Supreme Court nominees; but, when the president and Senate majority are of the same party, vacancies may be filled.2
When the Senate applied this rule in 2020, the stakes were even higher. Revered liberal stalwart Justice Ruth Bader Ginsburg passed away only 46 days before the 2020 presidential election.3 Invoking the McConnell Rule,4 the Republican-held Senate moved forward with the confirmation of President Trump’s nominee Amy Coney Barrett.5 This contentious move again infuriated Democrats, and the topic of court-packing soon became a central issue for the presidential campaign.6
Now that Justice Barrett has been appointed and the presidential election has passed, it is useful to look back on the history of Supreme Court nominations during presidential election years. Such a review suggests that the so-called McConnell Rule is rooted in valid historical precedent. In fact, viewed in light of American history, even a Trump lame duck nomination and confirmation would have been valid.
This blog post argues that the Senate should distill this historical precedent into an explicit Rule of the Senate that will govern the chamber going forward. The rule should obligate the Senate to either (1) hold a vote to confirm the election-year or lame duck nominee, or (2) hold a vote to postpone action on the nomination. If a vote to postpone action on the nomination fails, the rule should then compel the Senate to hold a vote to confirm the nominee. Such a rule removes all doubt about the Senate’s authority to act or refuse to act on election-year and lame duck nominees, exposes unfounded threats of retaliation by minority parties, and best conforms to the Constitution.
The Michigan Journal of Law Reform is pleased to announce that its 2021 Symposium, “The Poverty Penalty: America’s Overuse of Fines and Fees” will take place January 25-29, 2021 as a series of five virtual talks from 12:00 – 1:00 pm EST. Each panel will take place via zoom and registration is required for each panel. Zoom links will be provided to all registered participants prior to the start of each panel. Please visit our website povertypenaltyjlr.com to register and for more information about the event.
Dispossessing Resident Voice: Municipal Receiverships and the Public Trust (pdf)
Juliet M. Moringiello
Dignity Transacted: Emotional Labor and the Racialized Workplace (pdf)
Lu-in Wang and Zachary W. Brewster
Resolving ALJ Removal Protections Problem Following Lucia (pdf)
The damage done to us during our childhood cannot be undone, since we cannot change anything in our past. We can, however, change ourselves. We can repair ourselves and gain our lost integrity by choosing to look more closely at the knowledge that is stored inside our bodies and bringing this closer to our awareness. This path, although certainly not easy, is the only route by which we can leave behind the cruel, invisible prison of our childhood. We become free by transforming ourselves from unaware victims of the past into responsible individuals in the present, who are aware of our past and are thus able to live with it.1
Matthew J. Razzano*
Historically, state usury laws prohibited lending above certain interest rates, but in 1978 the Supreme Court interpreted the National Bank Act (NBA) to allow chartered banks to issue loans at rates based on where they were headquartered rather than where the loan originated.1 States like South Dakota virtually eliminated interest rate ceilings to attract business, incentivizing national banks to base credit operations there and avoid local usury laws.2 In 2015, however, the Second Circuit decided Madden v. Midland Funding, LLC and reversed long-standing banking practices, ruling that non-chartered financial institutions were not covered by the NBA and were therefore subject to state usury laws where the loan originated.3 The underlying reasoning for the court’s decision was well-intentioned and based on (a) an unwillingness to allow non-chartered institutions to function as pseudo-banks4 and (b) a desire to protect consumers.5 The court’s radical decision received widespread criticism,6 and empirical studies have demonstrated a noteworthy decrease in credit availability in the Second Circuit7—negating the court’s own policy rationales. Since Madden, Congress and federal agencies have attempted an outright reversal, but none of their solutions address the Madden court’s fundamental concerns. This Essay argues that a Madden fix is needed, but the most effective solution must incorporate and address the Second Circuit’s underlying concerns.