Nuclear Bankruptcy: How the Environment is Protected in Business Bankruptcies By: Christian Strahl

Nuclear Bankruptcy: How the Environment is Protected in Business Bankruptcies
By Christian Strahl

One of the more unique aspects of the American legal system is our Bankruptcy Code. A person, municipality, or business entity can petition for bankruptcy and receive a discharge of all remaining obligations at the conclusion of their bankruptcy case if that person filed in good faith and complied with all other requirements.[1] The bankruptcy case operates differently depending on who or what is filing. If an individual is filing and plans to liquidate all non-exempt assets and start over, that individual files in Chapter Seven.[2] If an individual is filing but plans to pay creditors all of their disposable income for three to five years and then emerge debt-free, that individual files in Chapter Thirteen.[3] If a business entity wants or needs to file bankruptcy, it must do so in Chapter Eleven, the relevant chapter for business entities.[4]

Chapter Eleven is somewhat unique because the business entity debtor can either liquidate or reorganize.[5] If the debtor liquidates, all assets are sold and creditors are paid in order of priority; then the business entity ceases to exist at the end of the case. This is the way most people think of business bankruptcies — the entity declares bankruptcy and goes out of business. However, many cases filed under Chapter Eleven do not result in liquidation, but rather in a reorganization. When a business uses a bankruptcy case to reorganize, it crafts a plan of reorganization.[6] The plan separates the entity’s creditors into classes, and designates the equal treatment of the creditors in each class.[7] The plan of reorganization also determines what assets will be kept or abandoned,[8] what contracts will be assumed or rejected,[9] and generally how the business will be run post-bankruptcy. Then, once the plan of reorganization has been accepted, confirmed, and carried out, the business emerges from the bankruptcy and is hopefully a profitable entity in the future.

One potential problem with a business filing a bankruptcy, as opposed to an individual, is that business entities often hold massive or unique assets, such as production machinery or a coal mine. When a business petitions for bankruptcy, or is forced into bankruptcy by its creditors, these assets can pose a problem. For example, in not-too-distant diatribes, political candidates have talked about the coal industry and either bringing back the coal industry or letting go of it in favor of more sustainable energy production. The argument between those two points aside, a major theme is that coal mines are, or have been, going out of business. In most, if not all cases, this means a bankruptcy filed in Chapter Eleven. A coal mine or slurry pond that is left abandoned can obviously have innumerable negative environmental impacts, so what has happened to all these closed down coal mines when the business that owns them files bankruptcy? Taking that a step further, what would the effects on the environment be if, say, a nuclear power company that owns and operates nuclear power plants went out of business?

In March of 2017, Toshiba Corporation’s United States nuclear power company, Westinghouse Electric Company LLC filed bankruptcy.[10] This short article examines the environmental protections in place to protect the environment from toxic or hazardous assets such as coal mines and nuclear power plants.

First and foremost, when a business files for bankruptcy, it does not necessarily cease to exist or operate. The business becomes statutorily limited in what it can and cannot do, and how it uses or disposes of its assets; however, generally speaking the same controlling managers will continue to run the entity.[11] Thus, at first, the business will continue to manage itself as it has, and that managerial staff will be responsible for preventing adverse environmental impacts as they always have and there should be no additional environmental impact due to the bankruptcy case.

Secondly, the debtor in possession can be removed for cause and replaced with a trustee.[12] “For cause” includes fraud, dishonesty, incompetence, and gross mismanagement of affairs either before or during the commencement of the case.[13] Thus, if the debtor is seriously mismanaging the entity, the debtor can be replaced with a trustee. This finding of mismanagement could likely be predicated on the debtor in possession damaging the environment such that the Environmental Protection Agency or state regulators are imposing fines or other penalties on the entity. Thus a managerial staff that refuses to manage the environmental impacts of the business entity will most likely be replaced by a trustee who will.

Third, though the trustee or debtor in possession has the ability to abandon worthless or burdensome property of the estate,[14] there are special considerations when those assets are hazardous. In Midlantic National Bank v. New Jersey Department of Environmental Protection, the Supreme Court ruled that a bankruptcy trustee may not abandon hazardous property in violation of state law or regulation that is “reasonably designed to protect the public health or safety from identified hazards.”[15] Thus the trustee or debtor in possession, whose powers are largely interchangeable in business bankruptcy cases, can abandon property unless it would be against a state’s public health or safety law. This means, in the case of Westinghouse’s nuclear power plants, that no toxic waste or other hazards will be abandoned.

Finally, there are other federal statutory and regulatory safeguards in place to ensure that even in bankruptcy, businesses are not destroying the environment. For example, in 1986, an amendment to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) added a subsection that provides for a federal lien in favor of the United States government for all costs of removal or remedial action incurred by the United States on any real property owned by the liable party.[16] This means if the government has to step in to clean up during or after a business’s bankruptcy case, it will have a claim in the case in the form of a lien on the real property. Thus, even if everyone fails to protect the environment, the government will step in to clean up, assured that it will be paid because of the lien.

Overall, a nuclear power company filing for bankruptcy is never a good thing. However, everyone can sleep easy tonight knowing that the nuclear plant and all the potential hazards associated with it are not going to be simply left to waste away or turn our environment into a nuclear wasteland. All is well that ends well, even if it ends in bankruptcy.

[1] 11 U.S.C.A. § 727(a), (b).

[2] 11 U.S.C.A. § 109(b).

[3] 11 U.S.C.A. § 109(e).

[4] 11 U.S.C.A. § 109(d).

[5] 11 U.S.C.A. § 1123(b)(4) (specifying that a plan of reorganization can be used for liquidation).

[6] See 11 U.S.C.A. § 1121.

[7] 11 U.S.C.A. § 1123(a)(1).

[8] 11 U.S.C.A. 1123(b)(4), (6).

[9] Id. at (b)(2).

[10] See James Conca, Westinghouse Bankruptcy Shakes the Nuclear World, Forbes, (Mar. 31, 2017),

[11] See 11 U.S.C.A. § 1104(a) (stating that a trustee can be appointed for cause, but unless such cause is shown, the debtor remains in possession of the business).

[12] Id.

[13] Id.

[14] 11 U.S.C.A. § 554(a).

[15] Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494 (1986).

[16] 42 U.S.C. § 9607(l).


Highway Robbery: Policing for Profit through Civil Forfeiture By: Nikki Skolnekovich

Highway Robbery: Policing for Profit through Civil Forfeiture

By: Nikki Skolnekovich

“Highway robbery” is how an attorney at the ACLU Racial Justice Program described the civil forfeiture that occurred in Tenaha, Texas.[1] There, the local police department would habitually stop motorists on Highway 59, search their vehicles, and confiscate any cash found in the vehicle based on no evidence of wrong doing.[2] Some individuals reported being given the choice between being arrest and having their children taken into protective custody or signing away their rights to their property, often times cash.[3]

This situation mirrors civil forfeitures happening in many other states.[4] The federal statute concerning civil forfeiture requires that after property is seized, notice must be sent within 60 days, unless the “Government files a civil judicial forfeiture action against the property.”[5] Notably, the agency can pursue a forfeiture action without attempting to pursue a criminal indictment.[6] It may also occur that notice is not sent until after a declaration of forfeiture is entered, when the identity of the “interested party” or owner is not known by the Government.[7] Further the federal statute provides that in addition to the 60 day window for notice, a “supervisory official in the headquarters office of the seizing agency” may delay the sending of notice for 30 days.[8] For many people, the property seized is jewelry, cash, or their vehicle.[9] For instance, one woman was without her only vehicle and transportation to work for months because her car was seized, yet no criminal action was alleged seeking an indictment.[10] This flips the presumption of both innocence and property rights. People whose property is seized under either federal or state civil forfeiture laws are deprived of the property with no allegation of wrongdoing and certainly no proof of such.[11] After which, the burden is on them to prove the innocence of their property before reclaiming.[12] For many people in this situation, regaining the property is “notoriously difficult and expensive, with costs sometimes exceeding the value of the property.”[13] And all of this occurs at a profit to the policing agencies that seize the property.[14]

Currently, many states’ statutes still allow for this type of “policing for profit”[15] through civil forfeitures, without any charges or allegations of crimes.[16] Civil forfeiture laws were never intended to be used as an intimidation tool for government agencies to coerce individuals into signing over property or being detained.[17] Rather, these laws were intended as a “as a way to cripple large-scale criminal enterprises by diverting their resources.”[18] Keeping with this intent, civil forfeiture should require a determination that the preponderance of the evidence standard has been met before property is seized (or shortly after). This type of limit is imminently necessary to prevent the situation of ‘highway robbery’ similar to the Texas incidents, but also to protect both the civil and property rights of individuals.

State legislatures should reform civil forfeiture statutes to have stricter requirements to prevent abuse of the doctrine and erosion of property rights. Many states and Congress have acknowledged the abuse of civil forfeiture and taken steps to limit the practice.[19] Nearly every state has civil asset forfeiture laws, but each varies greatly as to the scope and treatment.[20] One remedy to stop the abuse of civil forfeiture is to remove the financial incentive for agencies or cities to profit by taking property.[21] In 2015, 23 states allowed the confiscating agency to keep 100% of the value of the seized property.[22] Other states remove this financial incentive by providing that the agency keeps none of the profit from the value of the seized property.[23] Inhibiting the prospect of ‘policing’ for profit, states can limit the temptation to deprive people of their property in order to make a profit for the agency.

Raising the standard of proof for property to be forfeited is another way states can combat the abuse under civil asset forfeiture laws.[24] A “preponderance of the evidence” standard or slightly more likely than not is the standard of proof for civil forfeiture in thirty-one states and for the federal government.[25] Many states have already begun raising the standard of proof toward the ‘beyond a reasonable doubt’ standard.[26] Further, some states including New Mexico have done away with civil forfeiture, and thus, now require a criminal conviction before property may be confiscated.[27]

Civil forfeiture allows ample room and incentive for government agencies to confiscate private property without seeking criminal charges. People who have been victims of abuses of civil forfeiture laws must go through a long and sometimes financially draining process to regain their property. States must ensure that proper restrictions are included in civil asset forfeiture laws as to not incentive policing for profit and to protect the property rights of innocent individuals.

[1] Janell Ross, Texas Police Shakedown Lawsuit Settled, Huffington Post (Aug. 9, 2012).

[2] Id. See also Sarah Stillman, Taken, The New Yorker (Aug. 12, 2013) (describing a family who was stopped in Tehana and was given the option to sign over their $6000 dollar of cash or “face felony charges for “money laundering” and “child endangerment,” in which case they would go to jail and their children would be handed over to foster care.”; Elora Mukherjee, Settlement Means No More Highway Robbery in Tenaha, Texas, American Civil Liberties Union (Aug. 9, 2012).

[3] Ross, supra 1.

[4] See Stillman, supra note 2.

[5] 18 U.S.C § 983 (2000). (note that notice must be provided as required by law in the filing of the suit).

[6] Id.

[7] Id. at (a)(1)(v).

[8] Id.

[9] See e.g., Stillman, supra note 2.

[10] Id.

[11] Id. See also 18 U.S.C. § 983 (2000).

[12] Id.

[13] Asset Forfeiture Abuse, American Civil Liberties Union available at

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] See Civil Asset Forfeiture Reform Act. See also Charles Basler, Reforming Civil Asset Forfeiture: Ensuring Fairness and Due Process for Property Owners in Massachusetts, 49 New Eng. L. Rev. 665.

[20] Dick M. Carpenter II et al., Policing for Profit: The Abuse of Civil Asset Forfeiture 2d., Institute of Justice (2015).

[21] Id.

[22] Id. (including Pennsylvania, Delaware, Massachusetts, Nevada, and Arizona).

[23] Id. (New Mexico, Montana, Indiana, Wisconsin, D.C., North Carolina, Maine, and Maryland).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

Freezing Taxpayers’ Rights By: Zachary King

Freezing Taxpayers’ Rights 

By: Zachary King 


In the weeks since the inauguration of President Donald Trump, the administration has produced a series of executive orders and memoranda implementing executive policy, including several policies that widely diverge from those of Trump’s predecessors. The long-term effects of these policies are yet to be fully known, but two such changes are likely to have detrimental effects on the rights of taxpayers. Either the federal hiring freeze, with its corresponding promise of a plan of long-term attrition in the federal civil service, or the regulatory freeze (commonly known as the “two for one” rule) would likely be enough to cripple the work of the Internal Revenue Service (IRS) in implementing the federal tax laws; in combination, they spell disaster for taxpayer rights.

President Trump’s Freezes

During his campaign for the presidency, Donald Trump released a document outlining a series of promised policies called his “Contract with the American Voter.”[1] The first section of this document contained six points promising to “clean up the corruption and special interest collusion in Washington, DC.”[2] Two of these points having direct impact of the ability of the federal government to perform its constitutional duties and to deliver promised rights to taxpayers, “a hiring freeze on all federal employees to reduce federal workforce through attrition”[3] and “a requirement that for every new federal regulation, two existing regulations must be eliminated,”[4] later came to fruition in the opening days of the administration.[5]

On January 23, President Trump signed a presidential memorandum ordering the implementation of a federal hiring freeze “across the board.”[6] The initial hiring freeze was meant to be a temporary measure in anticipation of a more permanent plan to “reduce the size of the Federal Government’s workforce through attrition.”[7] In the following days, more guidance was released explaining some of the details of the hiring freeze and enumerating several exemptions; there was no general exemption for IRS and revenue enforcement employment.[8] Unions representing federal employees, including those representing many Treasury and Internal Revenue Service employees, reacted strongly to the hiring freeze, both before and after its implementation, expressing concerns that reduction through attrition will result in a loss of expertise.[9]

On the day of President Trump’s inauguration, Reince Priebus, White House Chief of Staff, issued a memorandum freezing nearly all administrative regulation in the federal government, including agency guidance “that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.”[10]

Later, President Trump signed an executive order requiring “that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”[11]  The order also generally requires that “new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.”[12] The order contemplates that the Office of Management and Budget will allot agencies an amount of incremental costs (which could be negative), which the agencies may not exceed after netting the respective incremental costs of new and repealed regulations.[13] Within weeks of the executive order’s signing, the Internal Revenue Service halted all but the most routine issuance of guidance, such as the publication of monthly interest rates.[14]

Taxpayer Rights

In addition to the constitutional rights most taxpayers enjoy, such as the due process and equal protection guarantees of the Fifth Amendment, the Internal Revenue Code (Title 26 of the U.S. Code) provides a plethora of statutory protections to taxpayers. While these rights have existed in their statutory form for various, but long, periods, they were not summarized and collated into a document that most taxpayers can actually access and understand until 2014, when the Taxpayer Advocate Service, under National Taxpayer Advocate Nina Olson, released a “Taxpayer Bill of Rights” styled as IRS Publication 1, “Your Rights as a Taxpayer.”[15]

Relevant rights outlined in Publication 1 include the right to “clear explanations of the laws and IRS procedures in all tax forms, instructions, publications, notices, and correspondence,” the right to “prompt, courteous, and professional assistance in their dealings with the IRS,” the right to challenge an IRS action and “to expect that the IRS will consider their timely objections and documentation promptly and fairly,” and the right to “a fair and impartial administrative appeal of most IRS decisions.”

The rights outlined in Publication 1 are not freestanding. They represent a body of statutory and administrative law, which work together to provide taxpayers with guarantees about their relationship to the government. For example, Professor Saiger argues that statutory delegation of the power to interpret statutes to an agency, combined with the doctrine of judicial deference to agency interpretations, results in an obligation for the agency to faithfully interpret the statute, not simply permission to do so.[16] Moreover, the Internal Revenue Code allows, and even explicitly requires, the Internal Revenue Service to issue interpretive regulations: “[T]he Secretary [of the Treasury] shall prescribe all needful rules and regulations for the enforcement of this title[…]”[17] The IRS also has statutory authority to issue sub-regulatory guidance: “The Secretary [of the Treasury] shall prepare and distribute all the instructions, […] directions, forms, […] and other matters pertaining to the assessment and collection of internal revenue.”[18] These provisions relate to the right in Publication 1 to clear explanations of law and procedures in IRS guidance.


The hiring freeze and regulatory freeze implemented by the Trump White House will greatly diminish the ability of the IRS to deliver on the promises of Publication 1. If the hiring freeze is successful in reducing the size of government agencies like the IRS, what is lost could prove to be experience and talent, as long-tenured employees retire and young, skilled employees are recruited to opportunities in the private sector, with no effective means of replacing them. This reduction in experience and talent will likely lead to a decline in the level of service provided to taxpayers and an increase in the administrative backlog already created by budget cuts and workforce reduction.

Additionally, the regulatory “two for one” freeze is already resulting in an almost complete halt in IRS guidance, guidance that is required for taxpayers to understand and conform to a complex system of taxation. By increasing uncertainty in the area of revenue, both public cost (where regulation does happen, it will have to be the product of intensive, extensive, and otherwise unnecessary evaluation of priorities and effects, well beyond what is contemplated by the Administrative Procedure Act) and private cost (in determining where in the labyrinthine network of tax rumors good planning lies) will likely increase, in direct contradiction to the stated goals of these new policies.

What may perhaps be worse than the negative effects of its actions that the White House has apparently considered and accepted are the consequences they do not intend. In a review of prior government workforce reductions, the General Accounting Office found that some agencies experienced increased costs in addition to decreased efficiency, while the workforce was not actually significantly reduced.[19] While the exact consequences of the Trump White House’s freezes may be uncertain, it does appear that the rights of taxpayers will suffer because of them.

[1] Donald J. Trump Delivers Groundbreaking Contract for the American Voter in Gettysburg, Donald J. Trump for President (Oct. 22, 2016),

[2] Id.

[3] Id.

[4] Id.

[5] As British MP Nigel Evans later noted, President Trump may “go down in history as the only politician roundly condemned for delivering on his promises.”

[6] Presidential Memorandum Regarding the Hiring Freeze, The White House (Jan. 23, 2017),

[7] Id.

[8] See Memorandum: Federal Civilian Hiring Freeze Guidance, The White House (Jan. 31, 2017), See also Memorandum from Mark Sandy, Acting Director, Office of Management and Budget: Immediate Actions and Initial Guidance for Federal Civilian Hiring Freeze, The White House (Jan. 25, 2017),

[9] See, e.g., Hiring Freeze Will Threaten Public Services and Decrease Efficiency, NTEU (Jan. 10, 2017),; Hiring Freeze Counterproductive; Will Hurt American People, NTEU (Jan. 23, 2017),; President Trump’s Federal Hiring Freeze Will Cost Taxpayers and Hurt Americans, AFGE Says, AFGE (Jan. 23, 2017),; AFGE President: Veterans are Harmed the Most by Hiring Freeze, AFGE (Jan. 31, 2017),

[10] Memorandum for the Heads of Executive Departments and Agencies from Reince Priebus, Assistant to the President and White House Chief of Staff, The White House (Jan. 20, 2017),

[11] Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs, The White House (Jan. 30, 2017),

[12] Id.

[13] Id.

[14] Thomas H. Berg, Citing Regulatory Freeze, IRS Stops Issuing Administrative Guidance, Nat’l Law Review (Feb. 15, 2017), .

[15] IRS Adopts “Taxpayer Bill of Rights;” 10 Provisions to be Highlighted on, in Publication 1, Internal Revenue Service, See also IRS Publication 1 (Rev. 12-2014).

[16] Aaron Saiger, Agencies’ Obligation to Interpret the Statute, 69 Vand. L. Rev. 1231, 1272 (2016).

[17] 26 I.R.C. § 7805(a).

[18] 26 I.R.C. § 7805(c).

[19] Report by the Comptroller General of the United States: Recent Government-Wide Hiring Freezes Prove Ineffective in Managing Federal Employment, General Accounting Office, FPCD 82-21 (1982).

Laws Prohibiting Sleeping in Public Are Unconstitutional By: Mary Pat Damrich

Laws Prohibiting Sleeping in Public Are Unconstitutional

By: Mary Pat Damrich

What if you had nowhere you could sleep without fearing punishment by the government? This is the cruel reality facing the thousands of homeless people across the United States. Although sleeping is an activity that is necessary for survival and the majority of America’s homeless shelters are overcrowded, cities across the country have enacted laws criminalizing sleeping in public. As a result of these laws, homeless people are being arrested for publicly performing a harmless activity that is necessary for survival regardless of the fact that they may have nowhere to do so in private.

The homeless is one of the most negatively stereotyped groups of people in the United States. Americans generally feel that homeless people have no redeeming qualities, and believe that they are incompetent, have bad intentions, and are untrustworthy.[1] Because Americans would rather “turn up a nose rather than extend a hand”[2] to the homeless, they elect “lawmakers empty of empathy”[3] who feel the same way. Nationwide, these lawmakers are writing “anti-homeless” laws that target the homeless by making it illegal to publicly perform basic, harmless acts that are necessary for survival. These laws, which are “designed to move visibly homeless people out of commercial and tourist districts or, increasingly, out of entire cities, are often justified as necessary public health and public safety measures.”[4] The evidence shows, however, that these laws are not only ineffective at removing the homeless from the streets, but are also unconstitutional and unnecessarily expensive for the government.

Anti-homeless laws are “the latest legislative attempt to discourage the presence of those deemed undesirable.”[5] Laws with this underlying motive have existed throughout American history. Some examples of these laws are Jim Crow laws, which segregated the South after the Civil War, [6] and California’s anti-Okie law, which prohibited poor Dustbowl immigrants from entering the state in the 1930s.[7]

Throughout 20th century, various “vagrancy ordinances” were enacted across the country to discourage the presence of the “wandering poor.”[8] During this time, “vagrants could be cited or jailed under laws selectively enforced against anyone deemed undesirable.”[9] The era of vagrancy ordinances ended in 1972 when the Supreme Court of the United States struck down a municipal vagrancy statute as unconstitutionally vague in Papachristou v. City of Jacksonville.[10] In Papchristou, the Court’s stance was based upon its opinion that the statute “encourage[d] arbitrary and erratic arrests and convictions” and “ma[de] criminal activities which by modern standards [we]re normally innocent.”[11] The Court found that the statute placed “unfettered discretion […] in the hands of the Jacksonville police,” and feared the police “could use the law against undesired groups as a ‘convenient tool for ‘harsh and discriminatory enforcement.’”[12]

The modern “vagrants” being targeted by today’s lawmakers are the homeless. While homelessness has always been a problem in the United States, the economic recession of 1980-1981 led to an explosion of homelessness across the country.[13] During this time, some cities, such as New York, “saw homeless populations increase by nearly 350% in eight years.”[14] With this drastic increase in number of homeless people in the United States, “cities became frustrated rather than sympathetic, causing a resurgence in old attitudes towards the ‘wandering poor.’”[15] As a result, local lawmakers began drafting legislation aimed at expelling the homeless from their cities.

Because the holding in Papachrisou deemed vagrancy laws unconstitutionally broad, lawmakers now have to write laws criminalizing the homeless more narrowly to pass constitutional muster. To avoid being deemed unconstitutionally vague, these narrower laws are aimed at specific behaviors (sleeping, begging) in specific places (on sidewalks, in parks), at specific times (7 a.m.–9 p.m., 9 p.m.–7 a.m.).[16]  These laws are known as “anti-homeless laws,” and most of them are still enforced today. In fact, anti-homeless laws are becoming increasingly more widespread, and they continue to proliferate at unprecedented rates across the country.[17]

Of all the anti-homeless laws, laws criminalizing sleeping in public are the most obviously targeted towards the homeless, because homeless people are more likely to lack a place to sleep indoors than any other group of people. The number of laws criminalizing sleeping in public has seen a massive increase in the United States during the last few years, which is largely attributed to the national trend of revitalizing the downtown areas of cities.[18] Investors in these cities are revitalizing downtown areas that had high rates of homelessness and low home values and are turning these areas into neighborhoods with high home values.[19] Because the visible presence of homeless people in a neighborhood lowers the value of nearby homes, investors have turned to local governments for a response to the presence of the homeless in these places in order to protect their investments.[20] This response has been in the form of laws criminalizing acts such as sleeping in public under the guise of protecting public safety. However, there is rarely any evidence that supports these claims.[21]

Given the circumstances in which they have arisen, restrictions on sleeping in public are an inappropriate reaction to the problem of homelessness. It is currently estimated that over 700,000 people in the United States are homeless on any given night.[22] This is largely due to a shortage of shelter options for these people, as many cities across the country “lack the number of emergency shelter beds or transitional housing slots needed to house their homeless citizens.”[23] Moreover, even those who could potentially afford housing may not have the option to purchase a home, because many cities “lack the affordable housing necessary to accommodate their low-income residents.”[24] Therefore, laws criminalizing sleeping in public are causing for homeless people to be arrested for this act when they have nowhere else to sleep.

Laws criminalizing sleeping in public raise important constitutional concerns, and many courts have invalidated these laws on the grounds that they violate the Eighth Amendment. Because sleeping is necessary for survival, and the homeless have nowhere to sleep in private, many courts have held that the act of a homeless person sleeping in public is inseparable from his status as a homeless person. Therefore, criminalizing the homeless for sleeping in public is an impermissible criminalization of status, in violation of the “Status Crimes Doctrine” of the Eighth Amendment.

This view is supported by the Department of Justice. In 2015, the Department of Justice filed a statement of interest in a lawsuit brought by seven homeless people, arguing that it is unconstitutional to punish homeless people for sleeping in public if there is no shelter space available.[25] The Department of Justice’s statement says that it “should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. […] Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”[26]

While the presence of homeless people may be unsightly to some, in most cases the presence of these people peacefully sleeping cannot be deemed a direct threat to public safety. When cities impose criminal penalties on homeless people for performing necessary, life-sustaining activities in public places when there are no sheltered alternatives, these laws are criminalizing the homeless purely for their status. Therefore, these laws should be regarded as an impermissible criminalization of status in violation of the Eighth Amendment.

[1] Charles M. Blow, A Town Without Pity. The New York Times (August 9, 2013),

[2] Id.

[3] Id.

[4] No Safe Place: The Criminalization of Homelessness in U.S. Cities. National Law Center on Homelessness and Poverty (2014),


[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

[11] Id.

[12] Casey Garth Jarvis, Homelessness: Critical Solutions to A Dire Problem; Escaping Punitive Approaches by Using A Human Rights Foundation in the Construction and Enactment of Comprehensive Legislation, 35 W. St. U. L. Rev. 407 (2008) discussing Papachristou.

[13] Id.

[14] Id.

[15] Id.

[16] Brown, Kristen. Outlawing Homelessness, (August 1999),

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Maria Foscarinis et. al., supra note 5.

[23] Id.

[24] Id.

[25] Emily Badger, It’s Unconstitutional to Ban the Homeless from Sleeping Outside, the federal Government Says. The Washington Post (August 13, 2015).

[26] Id.


Reclaiming the Irreparable Injury Rule: Why Trump Lost in Judge James Robart’s Court. By: Francisco Canales

Reclaiming the Irreparable Injury Rule: Why Trump Lost in Judge James Robart’s Court. 

By: Francisco Canales 

Since my last blog,[1] Donald Trump was sworn in as the 45th president of the United States. Now in office, he has lost no time to enact many of his campaign promises. One of his key promises, indeed, was to promulgate a temporary travel ban for migrants from countries that have a current history of having unreliable record keeping—specifically those countries that have been compromised by radical Islamic terror organizations.[2] This temporary travel ban allows federal agencies, in charge of our national security, to set mechanism to vet properly migrants from these countries before entering the United States.  This is a three-month ban for seven countries.[3]

A day after it was signed, this travel ban was challenged in different federal courts throughout the United States.[4] On February 3, federal district judge James Robart entered a temporary restraining order (“TRO”) that applied nationwide, staying enforcement of Trump’s travel ban.[5] So, given the scope of this TRO, this federal district court in the state of Washington has essentially centered all litigation to stop this travel ban in one venue. Thus, this broad order has forced the United States to appeal it in a more liberal circuit court of appeals.  After deciding the United States’s interlocutory appeal, the Ninth Circuit Court of Appeals unsurprisingly affirmed Judge Robart’s order, and the case is now pending. [6] Several litigation options are available to the United States to fight this order;[7]  in the meantime, however, the United States lost a key litigation battle,[8] and Trump’s ban cannot be enforced.[9]

This Blog will specifically analyze why Trump lost in the district court and why the Plaintiffs (“States”) satisfied one of the four legal requirements to stay the enforcement of Trump’s travel ban. In other words, why Washington and Minnesota were able to make a showing of “irreparable injury” from this temporary ban.

What are federal trial courts really doing when granting TRO’s in constitutional cases?

“Although irreparable injury is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury should be presumed in constitutional cases.”[10] Indeed, Professor Disarro argues that a “plausible explanation for the presumption might be that courts fear that close scrutiny of irreparable injury will reveal numerous instances where constitutional violations are virtually harmless.”[11] This argument explains why judges “are willing to acknowledge constitutional wrongs as harmless in criminal cases and even when it comes to civil damages claims, as the numerous nominal damages recoveries in Section 1983 cases attest, but they seem resistant to the concept of harmlessness when injunctive relief is sought.”[12] He further notes: “The presumption obscures the perhaps discomforting reality that many constitutional infractions produce either no injury or one that damages can adequately redress.”[13]

The Injury of Trump’s Travel Ban

Arguably, this ban produces no irreparable harm to the States. But Judge’s Robart decision found,

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing….[14]

It should be of no surprise to jurists and scholars that the States won their motion to obtain a TRO.  The States made a facial showing that there was an injury, although it is largely speculative because the ban only stops a relatively low number of immigrants from entering the United States for a period of three months. And, the harm presented above is not really irreparable– unlike, say, Trump ordering the demolition of Seattle’s Space Needle. Thus, given the phenomenon that district judges throughout the United States are presuming irreparable injury when granting TRO’s, Trump was bound to lose this motion, regardless.

This presumption is greatly problematic here for the Trump administration and generally to injunctive relief jurisprudence.  “Presuming irreparable harm invites applications for preliminary injunctions in constitutional cases by eliminating what is usually the most difficult element for a plaintiff to satisfy.”  Indeed, “constitutional questions [should] be resolved on summary judgment or at trial than on a preliminary injunction ruling.”[15] Professor Disarro’s argument further explains why Judge Robart granted the States’ Motion: “In preliminary injunction proceedings, important constitutional questions will be decided tentatively and usually upon an incomplete evidentiary record produced at abbreviated and rushed hearings.”[16] As it happened in the States’s case, little record was presented to show an irreparable harm by the ban. Thus, this loss confirms the legal realities of the presumption of irreparable injury, and not so much the lack of merits of the United States’s case.

Moreover, Trump was also bound to lose his appeal on the court’s injunction of the ban. Appellate courts revising TROs will “apply the least rigorous appellate standard.”[17] By contrast, “[f]inal judgments on constitutional questions…will produce definitive holdings and be subject to nondeferential appellate review.”[18] So, given this appellate review standard, the deck was stacked against Trump;[19] albeit, the apparent lack of preparation by the United States’s Attorney arguing on Trump’s behalf and the judges’ liberal ideology did not help his case.

However, Judge Robart should have “consider[ed] a variety of factors to determine whether …provisional injunctive relief is appropriate: the nature of the right in question, the context in which the right is impacted, the severity of any deprivation, the burdens placed on the exercise of the right, the importance of a timely exercise of the right, and the adverse consequences beyond deprivation that will result.”[20] His seven page Order does not seem to analyze these key factors.[21] Although the Order’s Conclusion does note that the injunction may have “considerable impact… on the…executive…and the country’s citizens and residents”, the Order fails to address the national security interests at play here and the judiciary’s history of not revising discretionary findings regarding national security and immigration.[22] In other words, Judge Robart seems to have presumed the States’ likelihood of winning on the merits, as well.[23] Thus, this Order is faulty, but it is understandable why it was granted given the current perception by federal courts across the United States of granting injunctive relief in constitutional cases. 


Despite the shaky grounds for entering a nationwide TRO and buying the States’ parens patriae standing argument, and jumping analytical hoops in granting the injunction,[24] Judge Robart cannot be blamed in finding sufficient injury. His ruling is the creation of the current state of the law. The low threshold that federal district courts are currently setting when granting TROs in constitutional cases allowed for the States to make a sufficient showing to win their Motion.  Simply put: Don’t hate the judge, hate the Supreme Court’s unwillingness to reclaim the irreparable injury rule in constitutional cases, and do away with this presumption of injury.

This case could be the vehicle for the Court to finally eradicate a presumption of injury and make this rule applicable again in constitutional cases. “Requiring proof of irreparable harm should have little impact in cases where the injury is apparent and incontrovertible. But it will be significant in those cases where the existence or extent of injury, let alone one that can fairly be classified as irreparable, are questionable,” like in the States’ case.[25]

[1] In my last Blog, I analyzed the historical precedents of infamous travel bans enacted by the United States.

[2] Ariane de Vogue, “The legal arguments around Trump’s travel ban challenges,” CNN, ( 6:59 PM ET, 4 Feb. 2017.

[3] Id.

[4] Id.

[5] Washington v. Trump, Case no. C17-0141JLR, 4-7 (West. D. WA. 2017).

[6] Washington v. Trump, 2:17-cv-00141 (9th Cir. 2017).

[7] “WH Adviser Stephen Miller: A Single Judge ‘Cannot Make Immigration Law’ | Meet The Press | NBC News.” NBC News.

[8] As argued by Professor Anthony Disarro, “the preliminary injunction has become, much like class certification, a ‘momentous’ pretrial ruling that ‘[w]ith vanishingly rare exception . . . sets the litigation on a path toward resolution by way of settlement, not full-fledged testing of the plaintiffs’ case by trial.’ The recognition that a preliminary injunction decision is ‘no mere . . . procedural ruling’ is reflected in the fact that Congress has expressly authorized interlocutory appeals from these pretrial determinations.” Anthony Disarro, A  Farewell  to  Harms:  Against Presuming  Irreparable Injury in  Constitutional Litigation, 35 Harv. J.L. & Pub. Pol’y 743, 746-747 (2012). (internal citations omitted).

[9] See generally Washington, supra note 5.

[10] Disarro, supra note 9, at 744.

[11] Id. at 746.

[12] Id. at 747.

[13] The courts’ fear in this regard seems irrational. A plaintiff who cannot show irreparable harm can always obtain a declaratory judgment of unconstitutionality. The declaratory remedy was specifically created by Congress to provide a remedy for plaintiffs asserting constitutional claims who cannot satisfy the requirements for injunctive relief.  The remedy would seem superfluous if irreparable harm can simply be presumed in every case.

[14]  Washington v. Trump, Case no. C17-0141JLR, 4-7(W. Dist. WA. 2017).

[15] Disarro, supra note 9, at 747.

[16] Id.

[17] Id.

[18] Id.

[19] Given these realities, there is a high possibility that Trump make his at the trial court and seek  a final judgment on the merits.

[20] Id. at 794.

[21] See generally Washington v. Trump, Case no. C17-0141JLR (W. Dist. WA. 2017).

[22] Id.

[23] See Id.

[24] See Id.

[25] Disarro, supra note 9, at 794.

Should Professional Athletes Feel Obligated to be Social Activists? By: Chris Youngpeter

Should Professional Athletes Feel Obligated to be Social Activists?

By: Chris Youngpeter 

In 2016, former San Francisco 49ers quarterback Colin Kaepernick touched off an avalanche of criticism and support when he refused to stand for the national anthem before 49ers football games. Kaepernick’s refusal to stand was a silent protest in response to the mistreatment of African Americans by police and others in the United States.[1] Far from being a singular act of athlete activism, Kaepernick’s protest is the latest in a series of instances of athletes speaking out against injustices in the U.S. The revival of activism among professional athletes in a politically charged moment in U.S. history begs the question: Do professional athletes have an obligation to speak out and support movements of social activism in their own communities and across the country?

There is a rich history of activism by professional athletes in the United States. The pinnacle of this activism occurred in the mid-1900s. In 1967, Muhammad Ali refused to be drafted into military service in the Vietnam War.[2] Other famous black athletes, including Jim Brown, Bill Russell, and Lew Alcindor (now Kareem Abdul-Jabbar) publicly supported Ali’s decision at a meeting dubbed the “Ali summit.”[3] Ali’s decision cost him his title belt and led to a felony conviction for draft evasion that was ultimately reversed by the Supreme Court.[4] During the Summer Olympics in 1968, U.S. medalists John Carlos and Tommie Smith wore black gloves and raised their fists during their medal ceremony in a symbol of Black Power.[5] Both men received death threats and were suspended and sent home by the Olympic committee.[6] Kareem Abdul-Jabbar boycotted the 1968 games entirely “to call attention to the rampant racial injustice of the time,” and was called “un-American” for it.[7]

Activism by high profile professional athletes stagnated in the late 1900s. Michael Jordan, arguably the most famous athlete of the twentieth century, famously avoided publicly discussing controversial political issues.[8] The trend of hesitancy has ended in the last few years. In 2012, basketball players on the Miami Heat protested the Trayvon Martin killing by taking a picture wearing hoodies.[9] In 2014, college and professional athletes protested the police actions that resulted in the death of Eric Garner by wearing T-shirts that said “I Can’t Breathe.”[10] Many WNBA players have publicly supported the Black Lives Matter movement.[11] Four of the biggest stars in the NBA made a speech at the 2016 ESPY awards “urging fellow athletes to push for change on issues of race, policing and violence.”[12]

Some commentators would suggest that it is easy for today’s athletes to be social activists because, unlike those in previous generations, athletes today have little or nothing to lose from activism.[13] I disagree with this sentiment. Athletes may no longer face prosecution or public denigration to the same extent as Muhammad Ali in the 1960s[14], but they still face significant blowback for being social advocates. Brandon Marshal, a linebacker for the Denver Broncos, felt the sting of his decisions to follow in Kaepernick’s footsteps and kneel for the national anthem when he lost two endorsement deals.[15] In addition to financial costs, athletes also risk alienating their fan base. These consequences can prevent athletes from protecting their livelihood and being agents of change in their community.

It is unfair to characterize athletes who choose not to become social activists as merely “protecting their brand.” Someone with the talent and financial resources of LeBron James or Carmelo Anthony, two NBA stars, may be protected from overt acts of retaliation from the league or team management. Other professional athletes do not have this luxury. It is understandable why an athlete on the fringes of a roster would not want to publicly broadcast controversial political opinions. In 1992, Craig Hodges, a member of the Chicago Bulls, gave President George H.W. Bush “a letter asking him to do more to end injustices toward African-Americans.”[16] Despite being a member of two straight NBA title-winning teams, no team was willing to sign Hodges for the next season.[17] Hodges believed he was blackballed for his open activism.[18] This problem has not been solved in the intervening twenty-five years. Executives in the NFL, speaking anonymously about Colin Kaepernick, have said that a team that wants to sign him “will have to give at least some thought to how the move would be taken by the ticket-buying public.”[19] It is possible that Kaepernick will be blackballed by NFL teams due to his activism, so it would not be illogical for athletes in his position to choose less public ways of improving their communities. With this in mind, it should not be considered “selling out” when an athlete is not a public social activist.

So, what is to be expected from an athlete who chooses to be an activist? After police officers in Cleveland, Ohio, were not indicted for the killing of Tamir Rice, one Baltimore activist called on LeBron James to protest by refusing to play games for the Cleveland Cavaliers.[20] He did not take this advice.[21] In the aftermath of the Alton Sterling shooting in Louisiana, Carmelo Anthony opined that social media “hashtag” campaigns would no longer be sufficient for those who choose to speak out.[22] This sentiment was echoed after the Sterling shooting by New Orleans Saints running back, Mark Ingram.[23] Anthony suggests that activists engage with politicians directly.[24] This includes local officials, congressmen, assemblypersons, and community leaders, among others.[25] Anthony also suggests that activism should begin on the community level, and those who participate should work to build a mutual respect between police officers and the people who live in the streets that those officers patrol.[26]

There is no perfect roadmap for deciding how to be an activist professional athlete. A few parameters can be set, though. Violence, or the advocating of violence, is not acceptable. Those who participate in activism should make an effort to educate themselves on the current issues that are affecting their community and the historical causes of these issues. Activist athletes should invest their time and resources into their communities. Activists should understand that not every opposing opinion is held in bad faith and should avoid “scorched earth” tactics that poison the well for future progress. There is plenty of value in starting and taking part in difficult conversations about topics like race relations and police brutality. Carmelo Anthony is correct in advocating for political involvement, starting at the local level.

Professional athletes should not be forced into social activism, but those who choose it voluntarily should be encouraged to express their opinions. These athletes should build on the legacies of trailblazers like Muhammad Ali and Kareem Abdul-Jabbar to become driving forces for positive change in their communities.

[1] Mark Maske, Colin Kaepernick Made a Political Statement that Could Still Matter as He Seeks His Next NFL Job, Wash. Post, Mar. 3, 2017,

[2] Erit Yellen, Athletes Have More Power than Ever to Change the World, The Undefeated (Jul. 29, 2016),

[3] Id.

[4] Id.

[5] Craig Mills, The New Golden Age of Black Athlete Activism, Daily Beast, Oct. 3, 2016,

[6] John Eligon & Scott Cacciola, Player’s Protest Revives a Spirit of Activism From the Days of Ali, N.Y. Times, Sep. 13, 2016, at A1.

[7] Kareem Abdul-Jabbar, Kareem Abdul-Jabbar: The Importance of Athlete Activists, TIME (Nov. 16, 2015),

[8] Eligon & Cacciola, supra note 6.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Yellen, supra note 2.

[14] Eligon & Cacciola, supra note 6.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Maske, supra note 1.

[20] Adam Kilgore, In Wake of Police Killings, Activists Ask Athletes to Offer More than Hashtags, Wash. Post, July 8, 2016,

[21] Id.

[22] Carmelo Anthony, We Athletes Can No Longer Remain on the Sidelines in the Struggle for Justice, the guardian, July 13, 2016,

[23] Kilgore, supra note 20.

[24] Matt Vasilogambros, When Athletes Take Political Stands, Atlantic (Jul. 12, 2016),

[25] Id.

[26] Anthony, supra note 22.

The Legacy of Barack Obama’s Presidency By: Barry Burkett

The Legacy of Barack Obama’s Presidency

By: Barry Burkett

Black History Month is a time of the year that allows all Americans, to take a step back and reflect on how far our country has come from the days of slavery. Without the efforts of brave men and women such as Rosa Parks, Martin Luther King Jr. and Muhammed Ali, it would have been unimaginable for America to be where it is today. With Black History Month drawing near the end, it is only appropriate to reflect on the presidency of a great man, husband, and father Barack Obama.

As the first black President of the United States of America, Barack Obama has certainly cemented himself in American history. From my teenage years to young adulthood, he was my President; and as a black male, it is unexplainable the impact that this has had on my life. By the way he has carried himself, he has served as an example to young black men that being intelligent, articulate, and caring are the keys to success.[1] However, his confidence and poise may be the most memorable qualities regarding his leadership[2] and the fact that he has never shied away from his heritage.[3]

Further, his presidency should not be cherished and celebrated exclusively by black men and women. By becoming the first black President and performing well, he has broken barriers for all Americans who have the “audacity of hope.” [4] He has proven that if we strive for a goal that has not been achieved or what people say cannot be done, we are capable of achieving it and more.

Even with his success, some political leaders and scholars may choose to define his time in office as an abuse of executive power[5] or an inability to maximize this executive power.[6] Others may believe that his legacy will be erased over the next few years by the Trump Administration.[7] Although Obama’s Administration did have its flaws, which all administrations do, these arguments fail to acknowledge that his legacy should be defined by more than his accomplishments or policies.

A man who cherished his family, knew how to celebrate the good times,[8] and uplift our country in the bad times.[9] A man who lived by his actions rather than his words alone and had the “audacity of hope” even in the face of adversity.[10] These values are what defined Barack Obama’s presidency and what carried him throughout his time in the oval office. Finally, for any political leaders who believe that repealing the Affordable Care Act will diminish his legacy,[11] they are sadly mistaken. The moments that all Americans have shared with Barack Obama and his family and what they represented as the first family of the United States can never be repealed.

What Next?

For these upcoming years and beyond, we must remain forward-looking and build on the significance of Barack Obama’s presidency. Although there is much room for better equality in America, the leaders and participants of the March on Washington would certainly be proud that their efforts were not in vain. The fact that we judged Obama by the “content of [his] character”[12] when we elected him to serve as America’s president shows a step in the right direction.

Yet the common belief is that Obama has left America divided on racial relations,[13] although these reasons are either unexplained or illogical. For eight consecutive years, we entrusted the well-being of the United States in the hands of a black man. Men who were once discouraged from pursuing an education and becoming doctors or lawyers. If this does not show that at least some progress has been made since the March on Washington more than fifty years ago, it is difficult to imagine what will.

Rather than building walls[14] to truly divide this nation like it once was, we need to push for more inclusiveness in our educational institutions and better opportunities for immigrants.   Further, whether it be police-community relations, immigration or health care reform, one person’s policies cannot and will not change America for the better. As a democracy, America is greater than the sum of its parts; and if we truly want change, it will take all of us.

As Barack and Michele Obama have advocated the past eight years, every action that we as Americans take will have an impact on our generations of tomorrow.[15] Do we what a future that is still marred by the negativity regarding race relations or where America’s reputation as a the “land of opportunity” becomes an afterthought? It is up to us whether these questions will be answered in the negative or affirmative. For me, I am confident that America will be better for our future generations because I have the “audacity of hope” inspired by Barack Obama’s presidency.

[1]My Brother’s Keeper Alliance, (last visited Feb. 26, 2017).

[2]Chris Cillizza, The Remarkable Confidence of Barack Obama, The Wash. Post (Jan. 25, 2015),

[3]Ta-Nehisi Coates, My President Was Black, The Atlantic, (last visited Feb. 26, 2017).

[4]Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (2006).

[5]David Harsanyi, Obama’s Legacy Will Be Executive Overreach, The Federalist (Jan. 5, 2016),

[6]Michael Eric Dyson, Barack Obama, The President of Black America?, N.Y. Times (June 24, 2016),

[7]Dylan Matthews, Trump Will Undo Much of Obama’s Legacy. Here’s What Might Survive, CNBC (Jan. 6, 2017, 12:45 PM),

[8]Being an avid sports and music fan, Barack Obama was probably the most charismatic president that America ever witnessed. See Coates, supra note 3.

[9]Arguably the most moving moment of Barack Obama’s time in office was when he shed tears because Congress remained stagnant in its policies on gun control even after the senseless murders of the group of children at Sandy Hook Elementary three years prior. See Stephen Collison, Barack Obama’s Emotional Evolution on Gun Control, CNN (Jan. 7, 2016, 6:07 AM),

[10]See Obama, supra note 4.

[11]Van R. Newkirk II, The Trump Administration’s First Blow to Obamacare, The Atlantic (Jan. 24, 2017),

[12]Martin Luther King Jr., President, Southern Christian Leadership Conf., I Have A Dream (Aug. 28, 1963).

[13]Hans von Spakovsky, Obama’s Legacy Is a Weaker and More Divided America, The Daily Signal (Jan. 19, 2017),

[14]Julie Pace et al., Donald Trump to Move on Border Security, Immigration Enforcement, and Building the Wall, Time (Jan. 24, 2017),

[15]Laura Barren-Lopez & Kate Sheppard, Michelle Obama: Who Do You Want as Your Children’s Role Model, The Huffington Post (July 26, 2016),

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