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The majority of the attention at Judge Kentanji Brown Jackson’s recent confirmation hearings focused on her record as a district judge, especially the part where she gave unusually lenient sentences to child pornographers.[1] Highlighting this was understandable and laudable, but senators missed an opportunity to inquire about the nominee’s short time as an appellate judge, particularly her deeply alarming comments in a case just this year. Doing so would have provided a rare opportunity to see how Jackson’s judicial philosophy may be defined by the deeply undemocratic philosophies of the insular, extremist universities she has spent much of her adult life in. The Shaffer Case The case, Shaffer v. George Washington University, decided appeals in two separate suits, one against American University and the other against George Washington University (GW).[2] The facts of the two cases are functionally the same. Both universities advertised to students an in-person education, complete with campus resources, face-to-face connection & networking opportunities, and state-of-the-art facilities.[3] Both universities also offered online classes at a far lower cost, tacitly acknowledging they were of inferior value.[4] In addition to charging over $28,000 a year in tuition, the schools levied additional fees for campus services, such as activity fees, sports center fees, and a “Metro U-Pass Fee[s].”[5] Then Covid hit. Both schools, like so many other businesses throughout the country, were shuttered.[6] No more state-of-the-art facilities. No more campus resources. No networking, no connections, no sport centers, no activities. The American and GW university experience would now be conducted through webcam.[7] As the owners and employees of the over 97,000 businesses that went under during 2020 can attest, widespread closures–even when mandated by government order–do not clear a business from contractual liability.[8] Bills still need to be paid. Rent is still due.[9] Commitments made long before the world went insane still need to be honored, even if it means financial ruin for someone who has done nothing wrong. American and GW had something many of their fellow District of Columbia businesses did not: A lot of money in reserves. American had an endowment that exceeded $676 million; GW’s exceeded $1.8 billion.[10] Nevertheless, unlike the thousands upon thousands of businesses that were forced into bankruptcy by Covid shutdowns, American and GW decided to just keep the money. Sure, neither university was providing the services they collected tuition and fees for; but, this was now a “Covid” emergency, so they concluded basic decency–and the five centuries of contract law backing up that decency–no longer applied. Unsurprisingly, American and GW’s actions landed them in court.[11] They were far from alone. Universities across America took the same “keep all the money” strategy, meaning dozens of suits around the country hinged on the same basic question: Are universities special?[12] Does contract law apply to them too? Or does their elite status bestow on them a special kind of immunity, making them superior to the code of honoring promises that lesser (poorer) businesses must abide by? To put this question into legal terms, American and GW emphasized that the District of Columbia forbids “courts from reviewing claims that test the quality or value of the education students receive.” This policy is analogous to the common law “educational malpractice” doctrine, which prevents suits alleging that the instruction and curriculum provided was lacking. Such a rule makes perfect sense: Any decision on something as intangible as learning would be inherently subjective. What factors would a court use to distinguish a good genderqueer dance theory curriculum from a bad one? What educational malpractice is not, though, is an immunity shield for universities.[13] Just like any other corporations, they must obey contract law. Tangible, specific promises they make must be honored.[14] A university is not required to justify the quality of the product it sells, but it is not allowed to exchange that product for an entirely different one after getting paid.[15] Shaffer came to the DC Circuit Court as appeals of motions to dismiss.[16] This was a pre-trial procedure, and it meant that the court had to assume all the facts in favor of the students, and ignore fact-specific legal doctrines like discharge of duties.[17] In effect, the case hinged on whether to expand DC’s educational malpractice analog to erase the university’s debts–and leave students with the bill. As it was an appeal in what is arguably the second-most significant court in the nation, the Shaffer holding was expected to have repercussions not just for the American and GW suits, but for dozens of other ones around the nation.[18] The case was argued before a three-judge panel in mid-January.[19] On March 8, the opinion, by Judge Harry T. Edwards, was announced.[20] Edwards is no right-winger: A Jimmy Carter appointee, he wrote a high-profile dissent defending Obamacare and had his marriage officiated by Ruth Bader Ginsburg.[21] However, as a renowned author and the first black person to be Senior Judge of the DC Circuit, Edwards does possess a deep understanding and respect for the law.[22] As a result, his decision was in favor of the students.[23] “Determining whether the Universities in fact breached. . . . promises does not require this court to subjectively value the quality of Plaintiffs’ education,” Edwards wrote. “Defendants’ argument to the contrary overlooks the fact that the Universities themselves apparently charge different rates for online and in-person instruction.”[24] The Shaffer Hearing Edwards’ opinion, while welcome, should not have been a surprise. As a number of district courts had emphasized, the law (and basic common sense) is pretty clear: Requesting tuition reimbursement is not arguing educational malpractice.[25] What was interesting though, was who was not included. Kentanji Brown Jackson had participated in the January arguments for Shaffer.[26] However, after she had been nominated for the Supreme Court, she recused herself from all decisions she had heard but not ruled on, meaning she neither joined nor dissented from the court’s March opinion.[27] What was said at the hearing, though, was eye-opening…and alarming. While Edwards asked pointed, to-the-meat questions like “Are you saying you reserved the right to keep all of your money for a service they’re not going to give you?,” Jackson seemed bewildered.[28] “I'm trying to find an implicit promise of the universities that they would go forward [with in-person learning] in all circumstances,” Jackson pondered.[29] She then added that she was “trying to figure out if it makes any sense to infer that [the schools] intended to" promise in-person education "no matter what."[30] The universities, she concluded, ““did not breach because they only promised to do it [provide in-person education and resources] as a general matter in the course of affairs that ordinarily exist.”[31] What Jackson seemed to be ignoring was that the hearing was for a motion to dismiss. Any promises alleged would have to be taken at face value–and, to be clear, students from both schools had produced bulletins and advertisements describing, in detail, the on-campus resources being offered.[32] Given that, why would the students not take these promises to be “in all circumstances,” especially when the schools offered online-only classes for far less money. The schools boasted of campus connections, resources, and opportunities–and collected fees specifically labeled for these activities. Would the students really have believed that by paying extra they were merely buying a chance to get a different experience than the cheaper online-only option? The idea is preposterous. Someone with the legal experience of Jackson certainly knows the standard for motions to dismiss in typical contract claims. It strains credulity to pretend that another type of business attempting to dodge Covid debts would have gotten the same response. Jackson’s magical “no matter what” standard, imposed before the trial even commenced, seems to be applying an entirely different standard to universities.[33] To understand the origins of this Big Academia deference, it is wise to look to Jackson’s life before the Shaffer case–and how much it entwined with a corrupt university system diametrically opposed to typical American values. Kentanji Brown Jackson and the University System Aside from a year as a researcher for Time magazine, the entirety of Jackson’s adult life before taking the bar exam was spent studying at Harvard University.[34] While a student there, she embraced the school’s infamous illiberal, pro-censorship ideology, joining a woke mob that protested legendary attorney Alan Dershowitz for defending a student’s right to display a Confederate flag in her personal dorm room window.[35] Harvard’s enrollment agreement (both then and now) guaranteed students the right to engage in political speech, meaning that Jackson’s demands would necessarily require the school to break its contract.[36] After becoming a district judge, Jackson returned to Harvard, this time as a member of its board of overseers–a position she continues to hold.[37] Harvard, interestingly, is one of the many schools sued for refusing to reimburse tuition and fees after Covid.[38] In addition to this controversy, Harvard has undergone several scandals during Jackson’s tenure, being listed on FIRE (Foundation for Individual Rights in Education)’s “10 Worst Colleges for Free Speech” list three separate times since she joined.[39] Among the school’s most egregious actions (many of which likely violated its contracts with students) was instituting restrictions for any organizations that invited “controversial speakers” and expanding deans’ discretionary (and arbitrary) ability to cancel student group events.[40] The university president argued, “Freedom of association is a concept that was used widely in the white South to combat Brown v. Board [of Education], to combat the Civil Rights Act. It’s an argument that has been used to sustain and support discrimination.”[41] It is Harvard, though, that has sustained and supported discrimination. The school was caught systematically excluding Asian applicants by intentionally giving them lower “personality” scores (so as to promote diversity).[42] Harvard’s prejudice, censorship, and left-wing extremism–which comes from the enmeshed philosophies of intersectionality and critical race theory (CRT)–is hardly an anomaly among the modern university system. It also appears to represent Jackson’s personal beliefs. In a 2020 speech at the University of Michigan (another school sued for Covid tuition reimbursements), Jackson praised Derrick Bell, the founder of CRT, and his (in)famous book subtitled The Permanence of Racism.[43] She also commended “acclaimed investigative journalist Nikole Hannah-Jones” for her “provocative thesis that the America born in 1776 was not the perfect union it purported to be.”[44] Hannah-Jones is the creator of the infamous 1619 Project, which (in Hannah-Jones’ own words) argued “one of the primary reasons the colonists decided to declare independence was because they wanted to protect the institution of slavery.”[45] While popular on the Left, the Project has been widely debunked, with its publisher quietly retracting the work’s essential claims.[46] When given an opportunity at her confirmation, Jackson refused to disavow the Project.[47] The discredited series is also taught at Georgetown Day School, an elite, preK-12, DC private school that Jackson sits on the board of and sends her daughter to.[48] At her hearings, Jackson recited the baseless claim that CRT is “an academic theory at the law school level.” However, Georgetown Day’s curriculum includes notable CRT-publications, including the books Critical Race Theory: An Introduction and anti-cop manifesto The End of Policing.[49] Big Academia Deference CRT “explicitly” rejects the idea of ‘equality’--which makes up the backbone of the Fourteenth Amendment (and the Declaration of Independence the amendment is based on)--believing such a concept to be a fantasy that disguises systematic oppression.[50] Instead, CRT argues for equity.[51] ‘Equity’ is an amorphous term that can be used to justify a wide variety of seemingly unfair or prejudicial acts, so long as they are intended to remedy intangible communal suffering.[52] In a legal framework, this requires the rejection of natural rights, the idea (favored by the Founders) that individuals have inalienable rights that exist regardless of culture or environment.[53] The alternative theory is that of positive rights, which contends that any rights a person has come from the subjective judgment of their society–and can thus be taken away based on circumstance.[54] Jackson, unsurprisingly, refused to acknowledge the existence of natural rights, even when asked explicitly.[55] A CRT-based, natural rights-free ideology provides an explanation for why, despite the fact that all other businesses were forced to honor their contracts during Covid, woke universities should not have to. Viewed subjectively (by people trained at said universities, of course), the schools’ noble purpose of providing a learning experience is far too ephemeral a concept to make written promises and advertising binding. It is viewed as categorically distinct from the grubby, market-based industries that engage in exchanging goods and services and therefore follow peasant law (even when the government mandates its unprofitability). Obviously, such a concept is wholly at odds with the idea of “equal protection.”[56] However, in a CRT-enlightened universe divided between those labeled “essential” and “inessential,” it might just make sense.[57] Justice Jackson The Supreme Court is likely to face several more university cases in the near future. A suit over Harvard’s discrimination will be heard next term (Jackson said she has a “plan” to recuse, but was noncommittal[58]), as will a similar one for the public University of North Carolina.[59] Action in a Shaffer-esque Ccovid tuition case is in the cards.[60] Issues like campus censorship, secret science, and Title IX kangaroo courts loom on the horizon.[61] Will parties challenging the powerful, rigid university system get their Fourteenth Amendment equal treatment in the nation’s highest court? Or will a Justice Jackson impose the doctrine of Big Academia deference on our laws? Sadly, the judge was not challenged on this question at her hearing, so we must wait for her rulings to know the definitive answer. There is little reason to be optimistic. References [1] Wendell Husebo, Judge Jackson Sentenced Those in Possession of Child Porn to Nearly 60 Percent Less Time Than National Average, Bʀᴇɪᴛʙᴀʀᴛ (March 30, 2022), https://www.breitbart.com/politics/2022/03/30/exclusive-judge-jackson-sentenced-those-in-possession-of-child-porn-to-nearly-60-percent-less-time-than-national-average/. [2] Shaffer v. George Washington Univ., 27 F.4th 754, 761 (D.C. Cir. 2022). [3] See Appellants Brief, Quereshi v. American Univ., 2021 WL 5987140 (C.A.D.C.), 3; and see Brief for Plaintiff-Appellants, Shaffer v. George Washington Univ., 2021 WL 4208746 (C.A.D.C.), 9; and see Class Action Complaint, Quereshi v. American Univ., 2020 WL 2095519 ¶ 20 (D.D.C.). [4] See Appellants Brief, Quereshi, 2021 WL 5987140 at 13; and see Brief for Plaintiff-Appellants, Shaffer, 2021 WL 4208746 at 2. [5] See Appellants Brief, Quereshi, 2021 WL 5987140 at 3; and see Brief for Plaintiff-Appellants, Shaffer, 2021 WL 4208746 at 7. [6] Shaffer v. George Washington Univ., 27 F.4th 754, 759 (D.C. Cir. 2022). [7] Id. [8] Lisa Fickenscher, Nearly 60 percent of Covid-19 business closures are permanent: report, Nᴇᴡ Yᴏʀᴋ Pᴏsᴛ (Sep. 17, 2020), https://nypost.com/2020/09/17/majority-of-covid-19-business-closures-are-permanent-report/; and see Stephanie Carter, et al., The D.C.-Area Bars and Restaurants That Have Closed During the COVID-19 Crisis, Eᴀᴛᴇʀ: Wᴀsʜɪɴɢᴛᴏɴ DC (Updated: March 30, 2022), https://dc.eater.com/2020/5/18/21262400/dc-restaurants-permanently-closed-covid-19-coronavirus-crisis. [9] See Alabama Ass’n of Realtors v. Dep. of Health and Human Services, 594 U.S. 1, 1-2 (2021). [10] Class Action Complaint, Quereshi v. American Univ., 2020 WL 2095519 ¶ 7; Endowment Stewardship Report: 2020, Gᴇᴏʀɢᴇ Wᴀsʜɪɴɢᴛᴏɴ Uɴɪᴠ. (2020), https://finance.gwu.edu/sites/g/files/zaxdzs3726/f/downloads/FY20%20Endowment%20Annual%20Report.pdf. [11] See Shaffer, 27 F.4th at 759. [12] See, e.g.,, In re Univ. of San Diego Tuition & Fees COVID-19 Refund Litig., No. 20CV1946-LAB-WVG, 2022 WL 959266, at *3 (S.D. Cal), Hiatt v. Brigham Young Univ., 512 F. Supp. 3d 1180, 1186 (D. Utah 2021); Rhodes v. Embry-Riddle Aeronautical Univ., 513 F. Supp. 3d 1350, 1357 (M.D. Fla. 2021); McCarthy v. Loyola Marymount Univ., No. 220CV0466SBJEMX, 2021 WL 268242, at *3 (C.D. Cal. 2021); Ford v. Rensselaer Polytechnic Inst., 507 F. Supp. 3d 406, 417 (N.D.N.Y. 2020); Verlanga v. Univ. of San Francisco, No. CGC-20-584829, 2020 WL 7229855, at *4 (Cal.Super. 2020); Bahrani v. Ne. Univ., No. CV 20-10946-RGS, 2020 WL 7774292, at *2 (D. Mass. 2020); Salerno v. Fla. S. Coll., 488 F. Supp. 3d 1211, 1218 (M.D. Fla. 2020); Grant v. Chapman Univ., No. 30202001146699CUBCCX, 2021 WL 684581, at *3 (Cal.Super. 2021). [13] Grant, No. 30202001146699CUBCCX, 2021 WL 684581, at *3 (“[J]ust because a claim touches on educational issues does not mean it sounds in ‘educational malpractice’”). [14] Id. [15] Bahrani, No. CV 20-10946-RGS, 2020 WL 7774292, at *2 (holding that “to challenge the fact of the switch from in-person to online instruction” is not to challenge “the quality of the online education”). [16] Shaffer, 27 F.4th at 761. [17] Id. [18] Josh Gerstein, Appeals court could revive suits seeking tuition refunds over Covid closures, Pᴏʟɪᴛɪᴄᴏ (Jan. 14, 2022), https://www.politico.com/news/2022/01/14/suits-tuition-refunds-pandemic-closures-527162. [19] Id. [20] Shaffer, 27 F.4th at 759. [21] Halbig v. Burwell, 758 F.3d 390, 412 (D.C. Cir. 2014), J. Edwards, dissenting, overruled by King v. Burwell, 576 U.S. 988 (2015); Shadee Ashtari, Judge Harry Edwards Issues Blistering Dissent Slamming 'Nonsense' Obamacare Decision, Hᴜғғɪɴɢᴛᴏɴ Pᴏsᴛ (July 22, 2014), https://www.huffpost.com/entry/judge-harry-edwards-obamacare-ruling_n_5609897; Weddings; Pamela Carrington, Harry Edwards, Nᴇᴡ Yᴏʀᴋ Tɪᴍᴇs (Feb. 13, 2000), https://www.nytimes.com/2000/02/13/style/weddings-pamela-carrington-harry-edwards.html. [23] Shaffer, 27 F.4th at 760-61. [24] Id. at 765. [25] See, e.g., In re Univ. of San Diego Tuition & Fees COVID-19 Refund Litig., No. 20CV1946-LAB-WVG, 2022 WL 959266, at *3 (S.D. Cal), Hiatt v. Brigham Young Univ., 512 F. Supp. 3d 1180, 1186 (D. Utah 2021); Rhodes v. Embry-Riddle Aeronautical Univ., 513 F. Supp. 3d 1350, 1357 (M.D. Fla. 2021); McCarthy v. Loyola Marymount Univ., No. 220CV0466SBJEMX, 2021 WL 268242, at *3 (C.D. Cal. 2021); Ford v. Rensselaer Polytechnic Inst., 507 F. Supp. 3d 406, 417 (N.D.N.Y. 2020); Verlanga v. Univ. of San Francisco, No. CGC-20-584829, 2020 WL 7229855, at *4 (Cal.Super. 2020); Bahrani v. Ne. Univ., No. CV 20-10946-RGS, 2020 WL 7774292, at *2 (D. Mass. 2020); Salerno v. Fla. S. Coll., 488 F. Supp. 3d 1211, 1218 (M.D. Fla. 2020); Grant v. Chapman Univ., No. 30202001146699CUBCCX, 2021 WL 684581, at *3 (Cal.Super. 2021). [26] Appeals court could revive, supra note 18. [27] Josh Gerstein, Appeals court revives tuition-refund lawsuits against AU & GWU, Pᴏʟɪᴛɪᴄᴏ (March 8, 2022), https://www.politico.com/news/2022/01/14/suits-tuition-refunds-pandemic-closures-527162. [28] Appeals court could revive, supra note 18; and see Khorri Atkinson, DC Circ. Wary Of Students' Bid For COVID Tuition Refunds, Lᴀᴡ360 (Jan. 14, 2022), https://www.law360.com/articles/1455525/dc-circ-wary-of-students-bid-for-covid-tuition-refunds. [29] Atkinson, supra note 28. [30] Id. [31] Appeals court could revive, supra note 18. [32] See Appellants Brief, Quereshi, 2021 WL 5987140 at 13; and see Brief for Plaintiff-Appellants, Shaffer, 2021 WL 4208746 at 2, 7; for motion to dismiss standard, see Shaffer, 27 F.4th at 761. [33] Atkinson, supra note 28. [34] Amy Howe, Profile of a potential nominee: Ketanji Brown Jackson, SCOTUSʙʟᴏɢ (Feb. 1, 2022), https://www.scotusblog.com/2022/02/profile-of-a-potential-nominee-ketanji-brown-jackson/. [35] Alan M. Dershowitz, My Encounter with Ketanji Brown Jackson at Harvard in 1991, Bʀᴇɪᴛʙᴀʀᴛ (March 21, 2022), https://www.breitbart.com/politics/2022/03/21/exclusive-alan-dershowitz-my-encounter-with-ketanji-brown-jackson-at-harvard-in-1991/. [36] See Harvey Silverglate, et al., Free Speech on Campus 57-60 (Greg Lukianoff & William Creely eds., 2d ed., 2012); and see Dershowitz, supra note 35. [37] Howe, supra note 34; and see Board of Overseers, Hᴀʀᴠᴀʀᴅ Uɴɪᴠᴇʀsɪᴛʏ (2022), https://docs.google.com/document/d/1KIJgNzLaZxzCHWqNCgJ5HsMpt8lQ5rl8--mZlQzct_Y/edit. [38] First Amended Consolidated Class Action Complaint, Barkhordar v. President and Fellows of Harvard Univ., 2020 WL 8613897, ¶¶ 2-9 (D.Mass.). [39] See 10 Worst Colleges for Free Speech: 2020, FIRE (Jan. 29, 2020), https://www.thefire.org/10-worst-colleges-for-free-speech-2020/; and see The 10 worst colleges for free speech: 2018, FIRE (Feb. 12, 2018), https://www.thefire.org/the-10-worst-colleges-for-free-speech-2018/; and see Greg Lukianoff, The 10 Worst Colleges for Free Speech: 2017, HᴜғғPᴏsᴛ Cᴏɴᴛʀɪʙᴜᴛᴏʀ (Feb. 22, 2017), https://www.huffpost.com/entry/the-10-worst-colleges-for-free-speech-2017_b_58ac64bfe4b0417c4066c2f1. [40] Crimson Editorial Board, Moderation or Suffocation, Hᴀʀᴠᴀʀᴅ Cʀɪᴍsᴏɴ (Sep. 24, 2019), https://www.thecrimson.com/article/2019/9/24/editorial-moderation-suffocation/. [41] Alex Morey, Harvard President to Consider ‘Alternatives’ to Final Club Policy, but Reveals Troubling Views on Freedom of Association, FIRE (Nov. 7, 2016), https://www.thefire.org/harvard-president-to-consider-alternatives-to-final-club-policy-but-reveals-troubling-personal-views-on-freedom-of-association/. [42] Reply Brief of Appellant Students for Fair Admissions, Students for Fair Admissions v. President and Fellows of Harvard Coll., 2020 WL 304792 at *16-17 (“Harvard doesn't dispute that Asian-American applicants receive significantly lower personal ratings. Harvard doesn't dispute that these lower ratings disproportionately undermine their admissions chances. And Harvard doesn't dispute that, if the personal rating is removed as a variable, all the admissions models--the court's, SFFA's, and Harvard's--show a statistically significant penalty that is unexplainable on non-racial grounds.”) [43]Joel B. Pollack, Scotus Nominee Kentanji Brown Jackson Inspired by Critical Race Theory, ‘1619 Project’, Black Lives Matter Protest, Bʀᴇɪᴛʙᴀʀᴛ (March 17, 2022), https://www.breitbart.com/politics/2022/03/17/scotus-nominee-ketanji-brown-jackson-inspired-by-critical-race-theory-1619-project-black-lives-matter/; and see Ismael Hernandez, Derrick Bell and Critical Race Theory, Fʀᴇᴇᴅᴏᴍ & Vɪʀᴛᴜᴇ Iɴsᴛɪᴛᴜᴛᴇ (Jan. 11, 2019), https://fvinstitute.org/derrick-bell-and-critical-race-theory/. [44] News 19 WLTX, Ted Cruz asks Ketanji Brown Jackson about critical race theory full video, YᴏᴜTᴜʙᴇ (Mar. 22, 2022), https://www.youtube.com/watch?v=R9lxFfOgFtM; Victor Williams, Lawsuits filed against Michigan colleges for tuition reimbursement after changes made due to COVID-19, WDIV-TV Lᴏᴄᴀʟ 4 (April 22, 2020), https://www.clickondetroit.com/news/local/2020/04/23/lawsuits-filed-against-michigan-colleges-for-tuition-reimbursement-after-changes-made-due-to-covid-19/. [45] News 19 WLTX, supra note 44. [46] Id. [47] Id. [48] News 19 WLTX, supra note 44; Howe, supra note 34. [49] News 19 WLTX, supra note 44. [50] U.S. Const. amend. XIV; Breccan F. Thies, Critical Race Theory: Inside a Virginia County’s Curriculum for Racial Indoctrination, Bʀᴇɪᴛʙᴀʀᴛ (May 28, 2021), https://www.breitbart.com/education/2021/05/28/exclusive-critical-race-theory-inside-virginia-countys-curriculum-racial-indoctrination/. [51] Thies, supra note 50. [52] Id. [53] Jordan Dixon-Hamilton, Kentanji Brown Jackson Refuses to Say Whether Individuals Have Natural Rights, Bʀᴇɪᴛʙᴀʀᴛ (April 3, 2022), https://www.breitbart.com/politics/2022/04/03/ketanji-brown-jackson-refuses-to-say-whether-individuals-have-natural-rights/. [54] Id. [55] Id. [56] See id. [57] See Interim List of Categories of Essential Workers Mapped to Standardized Industry Codes and Titles, Cᴇɴᴛᴇʀ ғᴏʀ Dɪsᴇᴀsᴇ Cᴏɴᴛʀᴏʟ (March 29, 2021), https://www.cdc.gov/vaccines/covid-19/categories-essential-workers.html; and see Hannah Bleau, CDC Embraces Critical Race Theory Language, Bʀᴇɪᴛʙᴀʀᴛ (July 17, 2021), https://www.breitbart.com/politics/2021/07/17/cdc-embraces-critical-race-theory-language-cites-social-inequities-in-risks-of-contracting-coronavirus/. [58] News 19 WLTX, supra note 44; [59] Order List, 595 U.S. 21-707, https://www.supremecourt.gov/orders/courtorders/012422zor_m6io.pdf [60] See Shaffer, 27 F.4th at 761. [61] See Rachel Frazin, Court Tosses Trump EPA’s ‘secret science’ rule, Tʜᴇ Hɪʟʟ (March 1, 2021), https://thehill.com/policy/energy-environment/536787-court-tosses-trump-epas-secret-science-rule/; and see Greg Piper, Judge orders USC to pay accused student $142,100 for Title IX kangaroo court, Tʜᴇ Cᴏʟʟᴇɢᴇ Fɪx (Oct. 22, 2019), https://www.thecollegefix.com/judge-orders-usc-to-pay-accused-student-142100-for-title-ix-kangaroo-court/; and see 10 Worst Colleges for Free Speech: 2021, FIRE (Feb. 17, 2021), https://www.thefire.org/10-worst-colleges-for-free-speech-2021/.

Since the 1968 Indian Civil Rights Act, a series of federal laws have granted federally recognized American Indian tribes much greater sovereignty and cultural protections. Between the 1970s and the early 1990s, Congress passed Indian Gaming Regulatory Act, the Indian Arts and Crafts Act (IACA), and the Native American Graves Protection and Repatriation Act (NAGPRA).[1] IACA acts a truth in marketing law, subjecting individual violators to fines of up to $250,000 and corporate violators to fines of as much as $1 million for falsely representing products as Indian made.[2] The statute provides for strict liability with little room for a defense and encompasses even non-federally recognized state recognized tribes. Id. IACA is usually measured by the benchmark of federally recognized tribes. As a result, some artists who are of Indian descent but not registered tribal members cannot list their work as Indian made. Additionally, there is no control on which Indian group can claim something is Indian made, resulting in a feud between the Hopi and Navajo over Navajo production of traditional Hopi dolls.[3] NAGPRA, passed in 1990 requires federally funded research institutes and museums to hand over Indian human remains and cultural artifacts to Indian tribes found on federal land and tribal land. Id. at 402. 18 U.S.C. § 1170 imposes criminal penalties, including imprisonment for up to five years for “Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act.” NAGPRA reaches very broadly to include even artifacts acquired before the statute was passed.[4] One of the biggest NAGPRA contests to date involved “Kennewick Man” a 9000-year-old intact skeleton from Inland Washington dating to 9000 years ago. Archaeologists ultimately prevailed in being able to study Kennewick Man because Indian tribes failed to provide enough evidence to show the skeleton was Indian—Kennewick Man was ultimately reburied by tribes. Id. at 411. Writing on the subject in 2017, Andrew Minikowski argued that NAGPRA should be amended to (1) grant custody presumption to historic rather than currently landowning tribes, and (2) “allow for a balancing test between scientific study and cultural repatriation.” In Article I, the Indian Commerce Clause contains the same use of “with” as found in the Foreign Commerce Clause strongly suggesting that Congress saw its dealings with Indians as dealings with foreign nations. That is for the most part the view taken in subsequent cases, holding that Indian tribes are domestic dependent nations. Under the reasoning in Morton v. Mancari from 1974, Indian is not a racial classification, but a political classification like residency in a state jurisdiction. Under this model, Indians are essentially citizens of two nations: the United States and their tribe. Unlike the US, the tribal government can determine who qualifies as a member and strip membership away. Together with the military, Indians represent an exception to equal protection. NAGPRA’s application to culture reaches much further than protections for non-Indian remains and cultural artifacts. Traditionally, many states had both a common law and statutory graverobbing offense. Virtually all cases date to 19th century body snatching and with rare exceptions exclude cemetery association and public official approved disinterment.[5] By essentially creating a group property right in Indian art and artifacts, the federal government has privileged some forms of heritage over others. IACA and NAGPRA may be constitutional under the Interstate Commerce Clause, Indian Commerce Clause, and Property Clause (prior to NAGPRA Indian remains were considered federal property under the Antiquities Act of 1906). Preserving cultural heritage is an important goal, but there are policy implications to privileging Indian tribes over others, especially when there are not similar protections for more recent non-Native American cultural heritage. IACA and NAGPRA are concerning to the extent that they may hamper research and give certain tribes a privileged position to claim cultural heritage and bodies over other tribes. This is especially concerning given the mobility of many Indian groups throughout history and prehistory. There is no easy mechanism to assign cultural heritage to current day tribes, especially where multiple tribes shared an area and likely derived from earlier groups—a concern especially significant in context of very old Paleoindian and Archaic burial sites from thousands of years ago. Preserving cultural heritage poses vexing questions. In extreme forms, it can be a vague “third generation” group rights claim that actually harms both understanding of the past and the rights of other groups. Some degree of protection is likely needed for cultural artifacts to prevent destruction through chaotic treasure hunting, but whether IACA and NAGPRA are the best approach is a question policymakers must consider. References [1] Andrew Minikowski, The Creation of Tribal Cultural Hegemony Under the Indian Arts and Crafts Act and Native American Graves Protection and Repatriation Act, 92 N.D. L. Rev. 397, 399 (2017) (hereinafter Minikowski). [2] Minikowski, at 400-401. [3] Id. at 406-407. [4] Pueblo of San Ildefonso v. Ridlon, 103 F.3d 936, 939-40 (10th Cir. 1996). [5] Construction and application of graverobbing statutes, 52 A.L.R.3d 701 (2022).

The advent of SCUBA diving in the 1960s and 1970s led to a spate of treasure hunting in US waters that raised Congressional concerns about destruction of underwater cultural heritage. In 1987, Congress passed the Abandoned Shipwreck Act, relying on its exclusive jurisdiction over admiralty and maritime in the Constitution. Unfortunately, the Act was remarkably poorly drafted even for Congress, and has created an enduring legal tangle.[1] The Act does not define what “abandoned” means.[2] Prior to the Act, the Submerged Lands Act of 1953 governed control of abandoned shipwrecks, essentially applying traditional ideas in the law of salvage.[3] Under the 1953 Act, many states claimed control of wrecks in their waters on the principle that the state government “found” the wreck. The circuit courts have split about what it means for a wreck to “embedded” in the seabed under the meaning of the 1987 Act.[4] The National Park Service has developed a more comprehensible version of “abandonment” indicating that a ship is abandoned after 30 days after sinking or with the filing of a notice of abandonment giving up title. The Supreme Court could choose to resolve existing circuit splits and better define the meaning of the 1987 Act. At least one commentator has argued the 1987 Act is unconstitutional because it interferes with traditional admiralty jurisdiction committed to the federal courts and reduces uniformity by vesting control in state governments.[5] Proposals to improve the 1987 Act include (1) making wrecks over 100 years old federal property, and (2) granting limited salvage licenses. Congress could also amend its definitions to better explain the meaning of embedded and abandoned. References [1] Trevor Hass, Try Not to Give Up the Ship! The Abandoned Shipwreck Act of 1987 and its Effect on Great Lakes Shipwrecks, 93 U. Det. Mercy L. Rev. 293, 295 (2016) (hereinafter Hass). [2] Hass, at 295. [3] Hass, at 296. [4] Hass, at 298. [5] Nathan Murphy, Scuttle the Abandoned Shipwreck Act: The Unnecessary Unconstitutionality of American Historic Shipwreck Preservation, 36 Tul. Mar. L.J. 159, 175 (2011) (hereinafter Murphy).

“‘Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.’”[1] In US Constitutional law, the post-Civil War Reconstruction Amendments began to apply the Bill of Rights to the states for the first time, primarily through the Fourteenth Amendment and its Equal Protection Clause. In the Slaughter House Cases and Civil Rights Cases, the Supreme Court essentially halted the application of the Constitution to the states for decades, until “incorporation” of the Bill of Rights began in earnest under Chief Justice Taft. Today, almost 90 years later, almost all of the Bill of Rights applies to state governments except for a few niche provisions about juries and bails. Incorporation took on a new life when former California Governor Earl Warren was appointed Chief Justice by President Eisenhower in 1954. The Warren Court issued a string of major decisions in the area of civil rights. Famously, it called for the end of de jure racial segregation in the Brown v. Board of Education decision. Aiming for a clean sweep, it created the doctrine of “reverse incorporation” using the Fifth Amendment of the Constitution to apply equal protection to the federal government and desegregate school districts in Washington, DC. In 1962 and 1964 in the famous Baker v. Carr and Reynolds v. Sims decisions, the Warren Court dictated a strict system of “one man, one vote,” with state electoral districts of exactly equal population, using the Equal Protection Clause of the Fourteenth Amendment. The sentiment was heart felt, especially because the State of Alabama at the center of the 1964 Reynolds decision was acting in incredibly discriminatory ways toward its black citizens and doing everything in its power to resist desegregation. Famously, in an earlier case Gomillion v. Lightfoot, Tuskegee, Alabama was redrawn as a 28-side polygon to deny all but four of its 400 black voters the right to the vote, without limiting the voting of any white residents. Perhaps because of this bad behavior, even noted originalist Justice Hugo Black joined the majority in the Reynolds decision. Justice Harlan dissented in that case and in subsequent cases throughout the 1960s, warning that exactly equal population was a bad standard ripe for computerized gerrymandering. Harlan was seemingly correct. With widespread computerization gerrymandering took off in a new form after the 1980s, with merged voter and geographic data used to create carefully crafted districts that favored incumbent majority parties at the state level. The Equal Protection Clause applied to voting in the vein of Reynolds v. Sims is still good law. It came up in a very controversial way in the 2000 Bush v. Gore decision, where the Supreme Court held that the Florida Supreme Court was giving weight to some Florida voters and not others by ordering a recount. The Baker and Reynolds have proven destructive for a number of different reasons: (1) involving federal courts and the Department of Justice in state apportionment decisions, (2) opening the door to state-level computerized partisan gerrymandering that reduces competitiveness, and (3) lending Constitutional legitimacy to federal election laws like the 1982 amendments to the Voting Rights Act that go against the meaning of the Fifteenth Amendment. Setting Constitutional law aside, federal equal protection under the Fifth Amendment is a good idea, even if it is not well supported in the text of the Fifth Amendment. But it is the kind of good idea that would probably be best implemented through a statute or a new constitutional amendment, rather than case law. Adarand Constructors in 1995 is one of several cases in recent decades that has kept federal equal protection alive. Perhaps the line that begins this article is just dicta—a throwaway line—but if not the existence of two “live” constitutional doctrines, reverse incorporation and one man, one vote, poses a real risk to America’s federal system. Under Reynolds, the Supreme Court concluded that states could not follow the model of the national government with their own internally federalized and geographically weighted systems. Under an extreme interpretation of these two doctrines, the Supreme Court could effectively deliver a national popular vote or create some type of different weighting of votes in the Senate. In reality, the present Supreme Court and circuit courts are unlikely to do this, but case law or federal statute could more clearly address this unforeseen conflict between the two doctrines. References [1] Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995).

Back in 1982, a group of Yale law students formed the Federalist Society, feeling that conservatives and libertarians were increasingly unwelcome in the US legal field. The organization grew steadily over the last 40 years, regularly hosting panels, meetings, and conferences of judges and lawyers. The Federalist Society offered an alternative to the American Bar Association (ABA) that some in the legal field saw as captured by left-wing interests. By the time of the George W. Bush presidency, the ABA proved unwilling to recommend many right of center judicial candidates. Formed after the controversial Bush v. Gore Supreme Court decision in 2000, the American Constitution Society (ACS) is the progressive, left-wing alternative to the Federalist Society, currently led by former Wisconsin US Senator and co-sponsor of the Bipartisan Campaign Reform Act (BCRA), Russ Feingold. What can ACS’s positions tell us about the legal attitudes of the American Left and how do they stand up to scrutiny? In addition to a YouTube channel and a regular events schedule, ACS hosts blog posts, issues and analysis, and projects on its website. Under its projects tab, the organization encourages site visitors to run for office, teach about the Constitution in classrooms, and check out information about judicial nominees. ACS opposes capital punishment, favors abortion, and calls for a national truth and reconciliation commission on race. It opposes what it sees as a threatened Article V Constitutional convention, “[that] could see amendments aimed at disassembling modern government and the century-old New Deal consensus, returning the country to the troubling, splintered times when the federal government could do little to provide for national welfare or defense. This could include amendments to repeal the federal income tax, to require onerous supermajorities akin to the filibuster to raise other taxes, and to enable state legislatures to nullify federal laws and regulations.” On the Supreme Court “The conservative supermajority is threatening our democratic legitimacy by failing to uphold constitutional guardrails. Our democracy, our right to self-government, depends on a meaningful right to vote. Right now, our right to vote is in jeopardy because of this Supreme Court, which has upheld voter suppression laws and OK’d partisan gerrymandering. Similarly, the Court’s conservative supermajority is taking direct aim at the separation of church and state in disregard of 50+ years of precedent regarding the First Amendment.” “This packed Supreme Court is a proven threat to fundamental rights. It has already overruled Roe v. Wade, wiping out the federal constitutional right to abortion and nearly 50 years of precedent. The Court’s decision in Dobbs v. Jackson Women’s Health also effectively serves as an invitation for states and plaintiffs to pursue litigation to rewrite constitutional law in this country in the interests of white supremacy, sexism, and misogyny. This could include efforts to overturn the Court’s previous decisions on same-sex marriage, inter-racial marriage, and contraception.” Administrative State · Expand data collection, sharing, and enforcement at the Equal Employment Opportunity Commission · Supported a Biden administration OSHA executive order · Supports state attorney general environmental justice initiatives that it defines “as communities of color and low-income communities that face disproportionate environmental burdens” National Security · Opposed renewal of Section 702 of the Patriot Act and called for an amendment to require search warrants. · Calling for a greater Congressional role relative to the president in January, 2022 preparing for the (then) possibility of a Russian attack on Ukraine. First Amendment · ACS opposes the overturning of portions of the Bipartisan Campaign Reform Act in the 2010 Citizens United v. FEC decision: “The Far Right is pursuing an audacious effort to capture America’s courts. Fueled by $250 million in secret “dark money” contributions, they seek to enact a radical social and economic agenda they could never achieve legislatively. This page shares reporting on the secret donor network behind the Far Right’s attempt to turn the judiciary into a tool for partisan and corporate interests. Learn more, including what you can do to protect a fair judiciary.” · Calls for a National Endowment for Fact-Checking modeled after the National Endowment for Democracy with a mandate in “a narrow category of election-related claims and a narrow category of claims related to public health…Because private companies cannot be trusted to decide what is true and false, and the First Amendment bars Congress from delegating to any government agency the primary responsibility for making such case-by-case decisions, the statute delegates that responsibility to independent, non-governmental fact-checking organizations.” The organization would issue warnings and “encourage…de-amplification orders.” Criminal Justice · ACS opposes no-knock and quick knock warrants · Favors strict gun control · Disfavors facial recognition for law enforcement Immigration · Favors taking immigration courts out of the purview of the Department of Justice Progressive Jurisprudence · Opposes the filibuster · Encourages greater clarity about a progressive jurisprudence as an alternative to textualism and originalism: “More is needed to say what the law is: context, history, intent, meaning, and other tools employed by the common-law methodology that sits at the heart of our judicial system. Generations of common-law jurists, at every level of the judiciary, have employed judicial methodologies to choose the materials best suited to getting to the right answer for any particular issue at hand. That is good judging.” In Sum In this article, we’ve taken a look at some of the high level statements from ACS, from the organization itself and individual authors, although we have not considered podcasts and videos. Thematically, ACS is fairly typical for a left of center policy organization in the US. There are many topics it has not addressed but it offers some valuable specifics. ACS’s opposition to warrantless surveillance under the PATRIOT Act and concerns about the abuse of facial recognition technology are sensible. Going back to the 1960s, left-wing judges and lawyers have been out ahead of the curve on Fourth Amendment search and seizure issues. ACS is weak on First Amendment and Second Amendment rights. The right to bear arms and the right to self-defense remains perceived as uncouth and “right-wing” despite widespread popularity among many left-wing American voters nationwide. On the First Amendment, ACS’s calls for a National Endowment for Fact-Checking and a return to pre-Citizens United campaign finance laws are concerning. “Fact checking” to combat “disinformation” is just coded language for large-scale censorship of disfavored ideas. Who decides what is or isn’t legitimate information about public health and elections? Supposed non-partisan status is unavailing because that simply insulates and removes oversight, hiding the biases and attitudes of commissioners. A return to the old system of campaign finance would also be bad. Apart from First Amendment guarantees that are not conditioned on the size of the speaker, there are compelling policy reasons why laws like the Bipartisan Campaign Reform Act were wrong. Under that law, vaguely defined institutional media was exempted and allowed to lobby and campaign at will under the guise of news reporting while other groups such as companies, unions, and non-profits faced major barriers to speaking. Free speech in its most heavily protected form—in politics—is about being able to share ideas nationwide not with one or two friends at the bar. ACS stances on jurisprudence, courts, and the administrative state require a very nuanced response outside the scope of this article. These are complicated issues, with supporters and opponents on both sides of the political spectrum, although as a general matter greater oversight and less administrative enforcement is likely better for the economy. The big problem with the (still) vague idea of a progressive jurisprudence is precisely the fact that it is so ill-defined. There may not be a single set of interpretive ideas in textualism and originalism, but there is probably greater consensus than the progressive version. The problem with a “contextualist” or “purposivist” viewpoint is that it relies on the hunches of enlightened experts to decide in a way that the democratically elected representatives of the people might never have intended.

Endless states of emergency. Limitations on freedom of movement. Warrantless mass surveillance. These are but a few of the hallmarks of a pattern of governmental abuse in the name of safety witnessed across the core English-speaking common law countries of the U.K., U.S., Canada, and Australia since the Cold War. The question of emergency powers has grown more pronounced as governments in all four countries have responded with unprecedented measures to modern challenges like terrorism and the Covid-19 pandemic. Emergency powers arise in response to perceived crises as states of exception, justifying limitations on civil rights. The situations that qualify as states of exception have steadily grown over time from traditional categories such as rebellion and invasion[1] to encompass natural disasters, civil unrest, pandemics, counter-terrorism, and even climate change. Additionally, the precise meaning of an “emergency” is fuzzy in law and is hardly a fixed concept in public discourse. Often viewed as a problem of executive power, emergency powers are actually implemented by both executives and legislatures, in both the U.S. system of separation of powers and the parliamentary systems of the other major English-speaking countries. Both systems eagerly adopt emergency powers. However, the U.S. rarely describes such measures as “emergency” powers, compared with more explicit identification of these powers in statutes like the Canadian Emergencies Act. Each of the four countries decentralizes some amount of emergency powers to sub-national governments—U.K. countries, states, and provinces—that may possess powers to impose quarantines and restrict travel. Among the three parliamentary countries in this study, clearer acknowledgement of emergency powers may be tied to notions of parliamentary supremacy, wherein members of parliament may see themselves as able to “turn off” emergency powers at will. By contrast, U.S. reticence to acknowledge the existence and use of statutory special powers may be tied to mutual wariness between Congress and the Executive, together with concern about potent judicial review that can halt some emergency measures—like the Biden administration’s federal mask mandate.[2] Part I of this paper will examine the field of comparative constitutional law and look at the constitutional and statutory underpinnings of emergency powers in each of these countries. Part II, in turn, will analyze constitutional and statutory responses that could apply to all four countries based on their mutual common law and democratic traditions. Without proper controls, emergency powers pose serious risks of abuse, becoming not a response to a state of exception, but a response to all situations. Therefore, this paper will offer proposed statutory controls on the extent of emergency powers in the future. I. COMPARATIVE CONSTITUTIONAL LAW IN THE ANGLOPHONE CORE A. Comparing the Anglophone Core The U.S., U.K., Canada, and Australia form the “core” of the common law Anglophone countries, dwarfing tiny Ireland and New Zealand. Born of the British Empire, the U.S. departed the earliest with its own unique and enduring Enlightenment experiment in constitutionalism, federalism, and separation of powers. The U.K. formally lacks a written constitution, but does have a constitutional tradition, and has developed some form of constitutional review in the courts first with the House of Lords, and since 2009 with the U.K. Supreme Court.[3] The U.K. is not formally a federal country, but in fact contains federal elements due to the devolved governments of Scotland, Wales, and Northern Ireland (for now, the majority of the population in England lack an English national government). Canada and Australia remained far flung but significant portions of the British Empire much longer. Both countries developed separate legal institutions, but remained beholden to final review by the Privy Council in London.[4] Canada and Australia both possess constitutions and a federal system, although Canada has a view of rights comparable to that in the U.S. English common law traces its origins to the Middle Ages and the 1215 Magna Carta (the first of several iterations of the document).[5] Arising out of a war between King John and English barons, it created the beginnings of limited government and guaranteed rights, limiting excessive fines and taxation, guaranteeing the freedom of the church, the independence of the church, and rights for widows, children, and heirs.[6] Despite its Medieval origins, the Magna Carta provides for key elements of modern jurisprudence: due process, trial by jury, evidence in trials, accountability for officials, proportionality, and equal treatment.[7] Centuries later in the aftermath of the English Civil War, the English Bill of Rights of 1689 became an early guarantor of civil rights for English citizens. England was an offshore refuge from the absolutism and civil law developments in mainland Europe, with a system of rights, checks and balances, and adaptive judge-made common law that would ultimately spread to its settler colonies in a variety of different forms. With that legal heritage came important ideas about how to respond to emergencies. Black’s Law Dictionary defines an emergency as a “Situation requiring immediate attention and remedial action. Involves injury, loss of life, damage to the property, or catastrophic interference with the normal activities. A sudden, unexpected, or impending situation.”[8] Emergency powers emerged in 20th century phraseology, reflecting a broader conception of emergencies beyond wars and rebellions. Today, emergency powers that grant enhanced privileges and powers to an executive, military, or executive agencies are invoked for war, civil unrest, insurgencies, natural disasters, and pandemics. Despite the growing prominence of so-called emergency powers, there is little agreement in legal definitions and public discourse about the precise definition of an emergency. Although the specific phrase “emergency powers” is comparatively modern, the common law world has long recognized vaguely defined emergency powers associated with martial law. English legal thinkers like Matthew Hale and William Blackstone debated the appropriate role of martial law, and Hale even contended that the king could not declare martial law without the authority of an annual Mutiny Act from Parliament.[9] These 17th and 18th century debates signal the deep roots of emergency power debates. Yet executives in all major common law country have frequently taken unilateral action in the name of emergencies, or based on expansive grants of right by legislators. In the 21st century, what constitutes an emergency is more broadly defined than ever before. Secessionism or a threat of foreign invasion is no longer the standard. Today, the definition might encompass responding to infectious illness, suppressing irritated truckers—or reordering the economy in response to an ostensible “climate emergency.”[10] Emergency power claims pose a potent threat to democracy and sacrosanct civil liberties, and therefore carefully crafted legislation is needed across the Anglophone core to prevent excesses. A. Emergency powers in the United States of America Unlike many national constitutions, the U.S. Constitution does not contain formal emergency powers.[11] The Vesting Clause provides for undefined “executive powers,” which are often the basis of emergency powers in-practice, together with Congress’s power to mobilize state militias, found within the Militia Clause.[12] Many other constitutions permit the suspension of rights during times of emergency, but the U.S. permits only the suspension of writs of habeas corpus, and then only with Congressional approval.[13] Habeas corpus only pertains to detention and detained individuals still retain their rights after the extraordinary circumstance necessitating suspension of the writ. Article I discusses writs of habeas corpus and identifies two circumstances that qualify for suspension of habeas corpus: rebellion and invasion.[14] One of the most recurrent uses of emergency powers in American history is martial law, declared either by senior military officers or state governors.[15] As a U.S. Army general, Andrew Jackson placed New Orleans under martial law in 1812, Lincoln imposed martial law throughout many parts of the country during the Civil War, and state governors frequently imposed martial law to combat labor strikes.[16] The Supreme Court first heard a martial law case in 1848.[17] Rhode Island had persisted with its 1600s charter rather than a state constitution; a rebellion broke out led by Thomas Dorr, favoring a state constitution, and the state’s charter government imposed martial law.[18] The Court did not reach the merits on the use of martial law, instead holding that the question of which state government is legitimate under a state constitution was a non-justiciable political question.[19] Ex parte Milligan[20] found restrictions on the president suspending habeas corpus. The Supreme Court held that civilians could not be tried by military tribunals if civilian courts were still functioning.[21] Congress ultimately granted President Lincoln the right to suspend habeas corpus in the South and border regions during the final two years of the Civil War.[22] After Milligan, Moyer v. Peabody was the next major martial law case to reach the Court. Colorado Governor James Peabody declared martial law throughout several counties in 1903 and 1904 to counter a miners’ strike.[23] State forces detained Charles Moyer, president of the Western Miners’ Federation, and the Colorado Supreme Court refused his habeas petition.[24] The Supreme Court concluded that the governor could declare martial law so long as he had a good faith basis for doing so.[25] Although governors possessed this power, there were limits. Sterling v. Constantin[26] in 1932 held that the Texas governor’s use of martial law in some counties to enforce an oil production limitation from the Texas Railroad Commission was an unallowable interference with property rights. The question of presidential martial law powers reached the Supreme Court in context of Congressional delegation to territorial governors to declare martial law.[27] In its Duncan v. Kahanamoku decision, the Court held that the Hawaii territorial governor’s decision to replace civilian courts with military commissions overextended power delegated by Congress.[28] Martial law cases betray the murky and uncertain origins of emergency powers in American jurisprudence from prior to the Constitution. In the U.S., emergency powers originate in statute, but are usually an exercise of federal or state executive power.[29] U.S. presidents have used executive powers to respond to national emergencies on many occasions, although this executive power often receives some degree of Congressional approval. George Washington quashed the Whiskey Rebellion with Congressional approval[30] and Woodrow Wilson undertook massive censorship and crackdowns on communists and anarchists, with the Espionage Act of 1917 and the Sedition Act of 1918.[31] But restriction on rights was perhaps most characteristic of Abraham Lincoln, Franklin Delano Roosevelt, Harry Truman, George W. Bush, and to some extent Donald J. Trump.[32] Faced with secession by Southern slave states in 1861, Abraham Lincoln undertook then unprecedented executive actions. Lincoln suspended habeas corpus before the approval of Congress, ordered the military to detain civilians, and ignored a Supreme Court order to release a detained Marylander in Ex parte Merryman.[33] Subsequently, Lincoln issued the Emancipation Proclamation, unilaterally emancipating slaves in the Confederate states.[34] Lincoln’s actions preserved the union, resulted in long overdue freedom for enslaved African-Americans, and paved the way for America’s great power status, albeit at tremendous cost in human life in a protracted war. Remarkably, Congress resisted many post-Civil War efforts to expand executive powers, although Congress did extend substantial powers to the president under Congressional supervision. For instance, the 1871 Ku Klux Klan Act allowed the president to suppress civil disturbances with military force and suspend habeas corpus.[35] During World War I, President Woodrow Wilson demanded—and received—expansive powers from Congress, launching prosecutions of anti-war individuals under the Espionage Act of 1917, and monitoring aliens under the Alien Enemy Act.[36] Wilson reordered the economy for war with price controls, rationing, and requisitions. Even after the war’s abrupt end in November, 1918, Wilson eagerly clung to his emergency powers, directing Attorney General Palmer to round up thousands of aliens believed to be communist or anarchist sympathizers in the 1920 Palmer Raids.[37] Congress’s grant of emergency powers during World War I did not contain a sunset provision. Congress ultimately voted 343-3 in 1920 to repeal emergency powers, but Wilson resisted with a pocket veto. Emergency powers were only revoked after Wilson left office on March 21, 1921.[38] Franklin Delano Roosevelt undertook a vigorous use of executive power in the 1940s, unmatched up until that time by any other president except Lincoln and Wilson. FDR set the tenor for what the American presidency has become: a figure akin to a prime minister with sweeping executive powers who sets legislative priorities and coordinates wide-ranging aspects of policy through administrative agencies.[39] During the Great Depression in the 1930s, FDR’s New Deal programs were backed with Congressional legislation, but initially faced pushback from the Supreme Court. After threats to “pack the Court” to achieve objectives, the Supreme Court affirmed an expansive view of the Commerce Clause that supported Congress and the president’s ability to regulate almost any aspect of American life.[40] Congress delegated authority to the Army to create military zones with heightened security during World War II and FDR followed suit with executive orders restricting, and ultimately interning Japanese-Americans.[41] The Court approved an expansive view of executive power with Korematsu case, permitting FDR to proceed with internment.[42] The interstate commerce revolution of cooperative federalism brought with it a truly national market, but also eroded regional resilience. Today, entire regions of the country, like New England, depend on interstate imports for over 90 percent of their food.[43] The legal changes brought about in the era of cooperative federalism and the rapid expansion of federal power in the years after World War II transformed the U.S. from a land of farming and market gardening, loosely stitched together with railroads into an intermeshed nation bound together by interstate highways, air travel, and national TV markets.[44] As a result, state power waned relative to the federal government, federal rather than local responses were given priority, and populations became more distributed across large areas. Burgeoning fields like healthcare, although somewhat decentralized through dual-federalism became areas of federal purview, and an added excuse for federal involvement in emergencies. The federal government usurped private insurance in areas as diverse as crop insurance and flood insurance, with federal outlays during emergencies becoming a vital source of local funds.[45] The advent of cooperative federalism meant the expansion of state governments, even as their power waned relative to the federal government. State emergency powers fit this pattern. In the decades after World War II, state legislatures adopted new laws granting sweeping emergency powers and martial law capabilities to state governors, in response to the perceived threats of nuclear war with the Soviet Union. Nationally, emergency powers—and broad federal powers generally—developed during the Great Depression and World War II became a standard part of governance.[46] Apart from his attempted nationalization of the steel industry in Youngstown, President Truman chose not to exercise the full extent of the powers granted to him by Congress. In 1950, Congress passed the Internal Security Act allowing the president to declare a national emergency, while the Emergency Detention Act allowed the Attorney General to arrest anyone suspected of espionage or sabotage.[47] The FBI under J. Edgar Hoover had compiled a list of suspects, but Truman resisted the opportunity to carry out mass detention of those on the list.[48] Nevertheless, Congress launched prominent investigations of real and imagined communist activity in the U.S. through the auspices of the House Un-American Activities Committee.[49] The FBI by the late 1950s dedicated most its personnel to combating communism.[50] Truman decided to take action with his Article II powers in a different arena, and was reportedly shocked when the Supreme Court overruled him. At the end of 1951, collective bargaining negotiations between steel mills and labor unions began to breakdown. On April 9, 1952, facing a steel workers’ strike, Truman issued Executive Order No. 10340, nationalizing the steel plants.[51] The Supreme Court rejected the nationalization effort, and Justice Jackson laid out a famous three-part scheme for weighing the exercise of presidential power in his dissent.[52] Against the backdrop of the Supreme Court decision in Youngstown, the federal government implemented new civil defense programs that in many ways embraced state and local emergency power provisions. FDR created the Office of Civil Defense (OCD) in 1941.[53] Truman abolished OCD, but followed the recommendations of the Blue Book report and approved the creation of the Federal Civil Defense Administration (FCDA) in 1950.[54] FCDA avoided federalization of emergency preparation by emphasizing coordination between federal and state government, as well as federal financial support for fallout shelters.[55] After growth throughout the 1950s and 1960s, federal and state civil defense initiatives withered by the late 1970s. Ironically, major natural disasters in the mid-1960s, like the 1964 Alaska earthquake, or Hurricane Hilda and Betsy, prompted a deprioritization of civil defense in favor of federal disaster assistance funds sponsored by Senator Birch Bayh.[56] Many of the trends toward heightened internal surveillance and federal and state emergency powers continued throughout the 1960s. The 1970s marked a short-lived turning point in American emergency powers law. In the aftermath of the Watergate scandal, executive branch activities came under heightened public scrutiny. The Senate’s Church Committee conducted widely publicized hearings about the covert activities of the FBI and CIA, revealing widespread mass surveillance and 25,000 placed on lists to be rounded up and arrested in a national emergency.[57] Congress passed the Privacy Act of 1974, and in 1978 adopted the Foreign Intelligence Surveillance Act to require warrants for foreign intelligence gathering in the U.S.[58] A series of revolutions rocked the Soviet Union and its Marxist-Leninist allies in Eastern Europe, leading to a collapse of most communist governments outside of Asia between 1989 and 1991. The U.S. slashed defense spending in the 1990s, attempting to capitalize on the post-Cold War “peace dividend.”[59] Even with the Soviet Union out of the picture, new threats loomed. Since the 1960s, violent extremist groups increasingly capitalized on “propaganda of the deed.” Rogue nations and drug cartels appeared as new opponents. The nation weathered the 1992 Los Angeles race riots, Category 5 Hurricane Andrew, and the 1995 Oklahoma City bombing.[60] President Clinton elevated the FEMA director to the Cabinet. In 1994, Congress repealed the Federal Civil Defense Act, transferring civil defense authority to Title VI of the Stafford Act, completing the transformation to an “all hazards” approach to disasters.[61] Fears about pandemics and bioterrorism became increasingly pronounced in the late 20th century, with a growing awareness about the extent of air travel and globalization, as well as revelations about Soviet bioweapons programs.[62] Science writer and novelist Richard Preston reached the New York Times bestseller list in 1994 with the publication of the Hot Zone, an account of the discovery of the viral hemorrhagic fever Ebola in the late 1970s, and the U.S. Army’s clean up of a small Ebola outbreak in monkeys at a facility in Reston, Virginia, in 1989.[63] Subsequently, in 1997, Preston ventured into fiction with his novel The Cobra Event, depicting a grisly bioterror attack on the U.S. President Clinton read the novel, which prompted the creation of the National Strategic Stockpile of medical equipment and vaccines.[64] The September 11, 2001 terrorist attacks transformed executive and legislative attitudes to national threats, resulting in the creation of the Cabinet-level Department of Homeland Security two years later.[65] In the aftermath of the 9/11 attacks, George W. Bush received expansive powers under Congress’s Authorization for the Use of Military Force and the PATRIOT Act.[66] Civil libertarians quickly raised concerns about new law. PATRIOT Act ate away at Fourth Amendment protections, allowing “sneak and peak” searches in which the FBI could pull online purchase history, banking data, or library check out records without a search warrant.[67] Leaks by defense contractor, Edward Snowden, in 2013 revealed that the NSA had collected millions of phone records, relying in part on Section 215 of the PATRIOT Act.[68] After 9/11 the U.S. steeled itself for the possibility of infectious illness. SARS in 2003, the specter of avian flu, the swine flu pandemic in 2009, the West African Ebola epidemic in 2014, and Zika virus in 2016 all prompted a degree of federal and state emergency responses. Notably, in 2014, President Obama imposed screening requirements for arriving air travelers from West African countries affected by Ebola.[69] Less than six years later, the Covid-19 pandemic prompted an unprecedented federal and state emergency response, that will be considered across the study area in Section E. B. Emergency powers in the United Kingdom Compared with the U.S., Canada, and Australia, the U.K. has the longest legal history of any of the core Anglophone common law countries, and is the progenitor of the other three legal traditions. But the U.K. is an outlier among most countries worldwide because it does not have a written, codified constitution.[70] In other words, the U.K. has absolute parliamentary supremacy, and the whims of members of parliament usually win out, although the House of Lords does have the power to act as a check on these decisions.[71] The U.K. does have a constitutional tradition stretching back to the Magna Carta and the English Bill of Rights of 1689, but these instruments are easily overridden by Parliament.[72] The Parliament Act of 1911 eliminated the requirement that the House of Lords’ consent to any act of the House of Commons, reducing the degree to which Parliament is bicameral.[73] In spite of its lack of defined rights, U.K. law has a long tradition of recognizing rights in practice, and practicing a form of rule of law, permitting judicial interpretation, and demanding equality before the law.[74] The U.S. legal system has developed many unwritten traditions of its own over the course of nearly two and a half centuries, but tradition and convention are defining aspects of the U.K. legal system, such as the presence of government ministers in Parliament or the Queen’s recognized, but never exercised power to refuse assent to a bill passed by Parliament.[75] Modern emergency powers in the U.K. took shape with the Emergency Powers Act of 1920 and the Civil Defence Act of 1948 that largely delegated emergency responses to the local level.[76] Except for the U.K.’s forceful military response to the I.R.A. insurgency in Northern Ireland,[77] between the 1970s and 1990s, Parliament left emergency response largely in local hands through the 1990s.[78] Parliament promulgated the Civil Contingencies Act 2004, the current framework for emergency powers, based on a trucker protest in 2000 that resulted in nationwide fuel shortages, and the 9/11 attacks, which is currently the defining standard for emergencies.[79] With little fanfare, Parliament in 2005 passed the Prevention of Terrorism Act, essentially eliminating legal defense and habeas corpus for terrorism suspects, and eliminating separation of powers by placing judicial powers in the hands of Secretary of State for Home Affairs.[80] Absent a true constitutional baseline, these startling laws took effect with major criticism only from U.K. socialists and international NGOs like Human Rights Watch.[81] C. Emergency powers in Canada Canada remained a part of the British Empire after the time of the American Revolution and was subject to successive British Mutiny Acts until the time of Confederation in 1867.[82] Faced with the French-Canadian led Patriote Revolt in 1837, the Privy Council concluded that the governor of Lower Canada (today the province of Quebec), was privileged to put down the rebellion with the militia.[83] The newly constituted Dominion of Canada gained the ability to raise its own military and pass its own laws in 1867, but those laws remained reviewable by the Privy Council. The Dominion Parliament passed the Militia Act of 1868, creating a framework for executive declarations of martial law.[84] As in the U.S. maintenance of law and order was a matter for provincial governments, and therefore mayors, magistrates, and governors were the ones who typically declared martial law throughout the late 19th century.[85] Canada conducted a federal response to insurrection during the North-West Rebellion of 1885, but this response was small compared with the American Civil War, and resulted in little debate about federal emergency powers.[86] Indeed, in contrast to the U.S. where frontier law enforcement was conducted by federal troops and U.S. Marshals, Canada developed a gendarmerie in the form of the North-West Mounted Police (today, the Royal Canadian Mounted Police that conducts both uniformed and undercover law enforcement in most provinces).[87] Mirroring the growth of executive power in the U.S. during World War I, Canada passed the War Measures Act of 1914, which permitted parliament to delegate sweeping powers to the executive—in the Canadian case, the king or the Governor-in-Council.[88] With this legislation, the Governor-in-Council gained the ability to control ports and commerce, censor media, arrest or exclude individuals, and appropriate property with payment of compensation. The War Measures Act was quickly invoked and withstood a challenge in the Supreme Court of Canada in the In re Gray case, challenging a denial of habeas corpus.[89] The Canadian federal government labeled 80,000 people as enemy aliens and interned 8,600 of these people, keeping many in detention for two years after the end of the war.[90] Many of the detained were from enemy countries such as Germany and Austro-Hungary.[91] Ending emergency powers proved even more complicated in Canada than with the fight between Congress and President Wilson in the U.S. A 1923 decision by the Privy Council held that the federal government enjoyed tremendous deference to determine the scope of an emergency.[92] The Great Depression struck Canada even harder than the U.S. Dust Bowl conditions impoverished the Canadian Prairie provinces, leaving many destitute and on the verge of starvation.[93] Prime Minister Richard Bennett shifted the balance of power between the federal government and provinces, but had some of these powers struck by the Supreme Court of Canada.[94] With the start of World War II, the Canadian federal government invoked the War Measures Act in 1939, and issued 6,414 special orders throughout the course of the war.[95] Italian and German-Canadians were required to register as enemy aliens, and 22,000 Japanese-Canadians were interned after Pearl Harbor.[96] Ironically, even after the war’s end, Canada proceeded with mass deportation of Japanese nationals resident in the country, which was affirmed by the Supreme Court because of Parliament’s extension of emergency powers in the Emergency Transitional Powers Act.[97] Emergency powers faded as Canada entered its post-war reality, but the government continued to invoke the War Measures Act periodically, such as authorizing the secret arrest of a dozen alleged Soviet spies in 1946.[98] Much like the U.K., with the Troubles in Northern Ireland, Canada faced a domestic emergency due to secessionism with the violence perpetrated by the Front de Liberation du Quebec.[99] Canadian Prime Minister Pierre Elliott Trudeau invoked the War Measures Act[100] in response to the 1970 October Crisis, deploying troops to Montreal and arresting over 400 individuals. In 1981, the McDonald Commission of Inquiry brought to light alarming revelations about the quiet role that emergency powers played in permitting mass surveillance in Canada. Federal law enforcement and intelligence agencies had amassed files on 800,000 people in Canada, far surpassing even the surveillance of groups and individuals in the U.S. revealed by the Church Commission.[101] As a result of the revelations, Parliament shut down the Counter-Subversion Branch of the Canadian Security and Intelligence Service. Soon thereafter, in 1982, Canada adopted the Charter of Rights and Freedoms.[102] The War Measures Act was repealed and replaced in 1988 with the Emergencies Act. Compared with the amorphous powers in the War Measures Act, the Emergencies Act is comparatively restrained.[103] The Governor-in-Council is permitted to declare a state of emergency, but Parliament may “supervise” and terminate the emergency. Additionally, the federal government must consult with provincial leaders. Perhaps most significantly, the Emergencies Act refers to the Charter of Rights and Freedoms which does not contain any provisions that limit rights in an emergency.[104] Canada never declared a state of emergency after the 9/11 attacks in the U.S., but Parliament did adopt the Anti-Terrorism Act, Bill C-36.[105] The law criminalized terrorism with a political, ideological, or religious motive, permitted “preventive arrests,” and allowed police to request a judge to grant an investigative hearing where an individual called in for questioning would be required to answer with no right to avoid self-incrimination.[106] The Anti-Terrorism Act conflicts with the right against self-incrimination in the Charter of Rights and Freedoms, although Canadian case law holds that testimony can be compelled to prevent loss of life, if it is not used specifically to incriminate.[107] To date, the 1988 Emergencies Act has only been invoked once by Prime Minister Justin Trudeau in 2022 against truck convoy protesters in Ottawa—in response to civil unrest brought on by the Covid-19 pandemic.[108] The dramatic measure involved freezing the bank accounts of protesting truck drivers and their supporters, even though the Canadian Security Intelligence Service did not assess the protests as a national security risk.[109] D. Emergency powers in Australia Australia has a unique genesis as a penal colony for the unwanted dregs of British society deported to the Southern Hemisphere after the 1780s.[110] British colonies sprang up around the coastline of the continent more or less simultaneously. In a tenuous decision to federalize, Australia ratified its federal constitution in 1900.[111] Section 51(vi) states: “The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to … The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.”[112] An early test of the expansive Defence Power came in Farey v. Burnett.[113] Farey sold bread above the maximum price permitted by the War Precautions Regulations 1916 and appealed, arguing that price controls on bread were not part of the Defence Power. A majority of the High Court dismissed his appeal.[114] In a striking reference to American constitutional law, two of the justices quoted McCulloch v. Maryland for the proposition that the High Court needed to take a deferential approach to reviewing federal legislation.[115] In the post-World War II period, Australia embraced large-scale immigration and multiculturalism in the early 1970s.[116] Unlike Canada, Australia adopted a much more aggressive national security posture, with significant international security involvements, joining the U.S. for the Vietnam War and the U.S. and U.K. for the Iraq War.[117] Australia’s hawkishness compared with Canada played out in other ways, with the adoption of its strict point based immigration system in 1979.[118] These policies suggest a heightened concern about national security and a willingness to act aggressively to preempt potential risks, ultimately born out during Australia’s extremely aggressive response to the Covid-19 pandemic. Beginning in 1948, Australian courts occasionally review statutes and regulations for unreasonability.[119] But until as late as the 1980s, Australian courts viewed government decisions related to national security as non-justiciable and non-reviewable.[120] The High Court indicated with a plurality decision in 2013 that courts may review federal decisions for unreasonability if there is a more reasonable construction of a statute.[121] Faced with the Covid-19 pandemic in 2020, Australia adopted some of the strictest restrictions on civil liberties of any developed country. On March 18, 2020, Australian Governor-General David Hurley invoked the Biosecurity Act of 2015, declaring a pandemic and enacting sweeping emergency powers under section 476 of the Act.[122] To a greater degree than the other Anglophone countries in this study (other than Canada), Australia’s states declared states of emergency and closed state borders with one another, as part of the federalized response to the virus.[123] E. A Simultaneous Crisis: Covid-19 and Emergency Powers In November, 2019, mysterious cases of pneumonia began to appear in Wuhan, Hubei, China.[124] China kept the emergence of the SARS-Cov-2 virus quiet as it stockpiled medical supplies.[125] But when cases rapidly multiplied in the lead up to Chinese New Year at the end of January, 2020, there was no keeping the new illness quiet. International news agencies reported on overwhelmed hospitals, people collapsing in the street, and—in a then unprecedented move—the total quarantine of a multi-million person city and the surrounding province.[126] National, state, and provincial governments in the Anglophone core invoked myriad emergency powers, predicating many sweeping powers on biosecurity statutes and public health statutes for the first time, together with “state of emergency” legislation. In spite of travel restrictions with China imposed by President Trump, cases of Covid-19 soon began to appear elsewhere. By the end of February, 2020, community spread of Covid-19 was occurring in small numbers throughout the U.S. The Italian government quarantined entire towns in the Lombardy region, and then on March 9, as cases surged in the U.S. and throughout Europe, South America, Africa, and Asia, announced a total lockdown of the country.[127] Alarmed by events in China and Italy, countries throughout the world shut their borders and imposed national or regional lockdowns and stay at home orders in an effort to reduce the spread of the virus. In the U.S., governors exercised executive powers, imposing mask mandates, stay at home orders, curfews, and in some cases limitations on movements from other states.[128] In the early days of the Covid-19 pandemic, it was Republican lawmakers who chided the American left for its charges of racism against President Trump, and trumpeted the idea of travel bans to stop the spread of the virus.[129] Indeed, throughout the pandemic, there was no uniting pattern to draconian responses. State capitalist dictatorships like China, multi-ethnic quasi-democracies like Nigeria, civil defense states like South Korea and Israel, countries led by social democrats, and many jurisdictions led by center-right politicians, the likes of Boris Johnson, Scott Morrison, and Mike DeWine all reacted with varying degrees of intensity.[130] Charles “Cully” Stimson, a Senior Legal Fellow with the Heritage Foundation authored a piece at the end of March, 2020 laying out a constitutional case for strict emergency measures in the U.S. to combat Covid-19.[131] Stimson’s article is an interesting recent legal artifact, reflecting a pro-restrictions American conservative approach to the pandemic. “The COVID-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel,” Stimson observed, calling on states to use their plenary police powers even in the absence of action from Washington. “States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. . . Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.”[132] Such extreme attitudes disappeared quickly among American conservatives as Covid-19 countermeasures became a partisan wedge issue. The early months of Covid-19 marked an unusual departure from freedom of movement in the U.S. as some states attempted to impose border controls with one another. The Rhode Island National Guard was tasked to stop cars and go door-to-door in coastal communities collecting information about visitors from New York and issuing quarantine reminders.[133] In Texas, Department of Public Safety officers deployed to major airports to require visitors from “hotspots” to quarantine for fourteen days if staying in Texas.[134] Texas went a step further, setting up checkpoints at the Louisiana state line to remind out of state drivers about the state’s fourteen day quarantine requirement, with up to 180 days of imprisonment for violators.[135] Puerto Rico and Hawaii required negative Covid-19 tests to enter until mid-2022.[136] Canada shut its border with the U.S. by mutual agreement with Washington on March 18, 2020, although remained open in both directions to “essential” traffic such as commercial vehicles and some trans-border commuters. [137] Provincial governments invoked emergency powers and declared states of emergency.[138] The Canadian federal government announced wage subsidies to cover a 30 percent drop in business revenues.[139] By June, some provinces such as Ontario announced a partial reopening, although municipal governments like Toronto retained indoor dining bans.[140] Canadian provinces imposed what amounted to border closures with one another, requiring outside arrivals to quarantine for 14 days.[141] The Atlantic provinces brokered an informal agreement, dubbed the “Atlantic Bubble,” to allow quarantine free-travel within the region.[142] Canadian provinces lack an equivalent of the National Guard in the U.S. Quebec was particularly hard hit in the early days of the pandemic due to cold weather, air connections to Europe, and an annual winter festival in Quebec City. To alleviate understaffing in Covid-ridden care homes, Prime Minister Trudeau deployed Canadian Armed Forces personnel until mid-September.[143] During autumn of 2020, as cases rose with the return of cold weather, most Canadian provinces imposed strict mask rules and ordered the closure of “non-essential” businesses.[144] The Atlantic provinces suspended the Atlantic travel bubble. In January, 2021, Quebec imposed a nightly curfew and Ontario issued a stay-at-home order.[145] Prior to the Covid-19 pandemic, independent evaluations rated Australia as one of the the countries most prepared for a pandemic.[146] In practice, that meant dramatic federal and state limitations on civil rights, seemingly without reference to actual risks. Strict lockdowns went on for months, limiting Australians from leaving their homes.[147] The continuation of lockdowns was linked to vaccination rates, with Prime Minister Morrison vowing to keep lockdowns in place until 70 percent of Australians were vaccinated.[148] Australian states formally closed their borders with one another, or did so indirectly through the mechanism of a mandatory 14 day quarantine.[149] International and domestic media took a skeptical view of so-called “quarantine camps,” in Northern Territory.[150] Officially for returning international travelers, the camps gained notoriety for perceived coercive detention of Aborigines, and police dragnets for escaped quarantined individuals.[151] Australia arrested hundreds during anti-lockdown protests.[152] The response to Covid-19 across the Anglophone core evinced a lack of clarity about emergency powers. Governments through both executive and legislative action imposed never before seen limitations on civil rights through a combination of national security and public health laws at both the national and sub-national level. Governments largely maintained these restrictions over popular opposition, except in some U.S. states, where governors abandoned restrictions after a short time. In the past, all four countries have engaged in crackdowns on perceived enemies of the state under the auspices of emergency powers, with protracted detention, but never before had governments in the Anglophone core attempted to detain an entire country in the name of safety. F. Comparing Emergency Powers Among the Anglophone Core Countries The divergent traditions derived from English common law approach emergency powers in different ways. The U.K. and Canada are startlingly forthright about emergency powers, defining them clearly in statute. Throughout U.S. history, the executive—sometimes with the backing of Congress—has taken emergency powers measures like suspending habeas corpus, arresting and surveilling perceived enemies of the state or declaring martial law. These measures are essentially never clearly defined as emergency powers. To a greater degree than in the other Anglophone core countries, these actions are policed by federal courts. Chief Justice Taney and three other justices voted to stop Lincoln’s actions in Ex parte Merryman and no amount of favorability to the New Deal on the part of the justices could rescue Truman’s attempted nationalization of the steel industry. State leaders enjoy more clearly defined statutory emergency powers in the U.S. than the federal government is often willing to propound. In the area of federalism, strong emergency powers are found among U.S. and Australian states, as well as Canadian provinces. Australia appears as a hybrid between a U.S. and U.K. model: no constitutional safeguards and parliamentary supremacy, while simultaneously less willing to clearly identify emergency powers in legislation. All four countries in this study have encountered similar events at nearly the same time, reacting in common ways. The U.S. and Canada conducted similar internment and mass surveillance between the 1910s and the 1970s, briefly curtailing these powers during the 1980s. The U.K. proved remarkably reluctant to centralize emergency powers, but carried out some of the most aggressive domestic enforcement of any of the four countries between the 1960s and 1990s, countering paramilitaries in Northern Ireland. The four countries adopted a similar approach to expanded surveillance and counter-terrorism in the aftermath of 9/11. Similarly, all four took unprecedented steps to limit freedom of movement, and impose restrictions to counter the Covid-19 pandemic. Led by both legislative and executive initiatives, these measures were mostly eased up after mass vaccination in 2021, although many provisions in the U.S. were eliminated as an exercise of state federalism or by order of federal judges. II. REDEFINING EMERGENCY POWERS Governments in the Anglophone world and beyond need the ability to respond to emergencies. But few emergency circumstances actually rise to a level that would merit extraordinary emergency powers that involve long-term departures from ordinary laws and civil rights apart from the destruction wrought by a sustained insurgency, the concentrated damage of an intense natural disaster, or the distributed destruction of a nuclear war. Emergency powers legislation since the Cold War has obfuscated more traditional concepts like martial law. Simultaneously, emergency powers legislation grants considerable discretion to executive and government agencies at the expense of legislatures and courts. The response to the Covid-19 pandemic hints at what could be a new standard for emergency powers. Unless it is impossible for a legislature or courts to meet remotely, then continued emergency powers must include provisions requiring regular renewal by the vote of a legislature, with continual options for courts to review emergency acts. There is a risk that if review is too frequent or too rare, emergency acts could become baked in as a normal state. Therefore, legislations would need to pay close attention to the appropriate time interval, perhaps considering a formula like the 60-day allowance for presidential action in the U.S. War Powers Act.[153] The draconian lockdowns in Australia, and to a lesser extent Canada and the U.K. during the Covid-19 pandemic are anathema to the common law traditions of liberty and limited government. But within those countries, many restrictions were likely constitutional simply because constitutional traditions and separation of powers are so threadbare. In the U.S. as well, enactments like the PATRIOT Act violate fundamental principles of the Fourth Amendment, whereas the Public Health Act comes into conflict with the Due Process Clause. In the U.S., states enjoy even broader plenary powers than the provinces of Canada or the states of Australia, but often abused these plenary powers in violation of the Commerce Clause, the Takings Clause of the Fifth Amendment, and the Due Process Clause. Future emergency powers legislation must define a limited length of time in which businesses could be ordered to close, after which closure would become a taking, to give businesses notice of how to prepare for the risk of closure. The Fourth Amendment’s probable cause and warrant requirements strongly affirm the need for individualized review of warrants for surveillance. Although all four Anglophone core countries profiled in this paper share common cultural and economic attributes, their legal systems diverged from common law roots. The U.K. was the first to adopt a proto-constitutional framework with the Magna Carta and English Bill of Rights, but never fully codified a constitution or affirmed the supremacy of rights. Essentially, there is an internal split within the Anglophone core between the three large parliamentary countries, and the presidential structure in the U.S. A tradition of Dormant Commerce Clause enforcement may have dissuaded states from undertaking the types of dramatic border closures witnessed in Australia and Canada. Perhaps the most significant difference among these countries is the constitutional difference between the U.S. and the other three countries. The U.S. Bill of Rights, similar provisions in state constitutions, and vigorous constitutional review by courts is an important check on procedural irregularity—although it is not a universal panacea as this study reveals. Canada, due to U.S. influence does have a tradition of rights and review in its Charter of Rights and Freedoms, but this review appears to be less robust. The U.K. and Australia, by contrast, have very weak enumerated rights traditions, leaving the decisions of executives and legislators to win out more often. The results in the U.K. and Australia are particularly bad. A 2005 decision of Parliament to allow indefinite detention of terrorism suspects is a far greater erosion of rights than suspension of habeas corpus. To a far greater degree than any of the other three, Australia reacted in an extreme and authoritarian way to Covid-19, effectively detaining an entire country in the name of public health. Although the Anglophone core does not share the same outlook on constitutionalism and federalism, the citizenry of all four of its largest members share common interests in limited government, electoral democracy, and civil rights. Therefore, during times of relative calm, each national government should adopt legislation that clearly defines the scope of emergency powers, measured against each country’s national constitutional tradition. Despite the differences, legislation could likely be similar across all four countries, regardless of whether there is a tradition of rights and vigorous constitutional review. New emergency powers legislation could explicitly promote localized responses to disasters, creating systems of emergency conducts and networks to coordinate local and regional leaders. Emergency powers could clarify the power of each country’s executive to close national borders and suspend immigration or air travel, and mobilize the military. But emergency powers have too often taken shape in an ad hoc fashion that leaves out courts and legislators. A national declaration of emergency must be time-limited and subject to continual review by courts and legislators. For instance, nationwide legislation could limit any national emergency to 60 days, or an even shorter period of time, so long as it does not become too regularized for legislators to renew such powers. Once special powers are claimed, they are seldom relinquished, and fundamental liberties suffer. The need to better define emergency powers is particularly important because of the new areas where emergency powers are being claimed. Anglophone countries have long imposed quarantines on new arrivals and taken some degree of public health measures, but mass surveillance, mandatory vaccination with poorly tested vaccines, and the exclusion of those reluctant to get vaccinated from society is unprecedented. Covid-19 provided a valuable test case of emergency powers in action. No doubt, Covid-19 is a dangerous illness to some members of the population, particularly before the widespread availability of vaccines. Hundreds of thousands of people, many but not all with preexisting conditions perished across the Anglophone core due to Covid-19. Policymakers should assess whether pandemic-related emergency powers should respond to contagiousness or lethality. Viewed in retrospect, all four countries profiled in this paper likely should have responded to Covid-19 differently, avoiding draconian and disruptive lockdowns. The response to Covid-19 revealed serious problems with existing emergency powers rules across both the parliamentary and U.S. presidential system that must be remedied to prevent future abuse. III. CONCLUSION The Anglophone common law countries share one of the world’s longest traditions of limited government and electoral democracy. Each of the four countries profiled in this paper have legal systems descended from English common law and influenced by documents like the Magna Carta and the 1689 English Bill of Rights, that yield a degree of common outlook on rights compared with other countries. The largest of these common law countries have each faced crises in recent decades relating to civil unrest, violent secessionism, natural disasters, terrorism, and pandemics. Each of these countries has approached these crises in similar ways, informed by divergent constitutional traditions. However, these responses have invariably strayed from the lodestar of limited government. Statutory reform is needed to bring emergency powers within line with the letter or spirit of each country’s constitutional tradition. References [1] See U.S. Const. art. I, sec. 9, cl. 2. [2] See generally Biden’s plane, train mask mandate struck down by federal judge, American Military News, (Apr. 18, 2022), https://americanmilitarynews.com/2022/04/bidens-plane-train-mask-mandate-struck-down-by-federal-judge/. [3] History, U.K. Supreme Court, (2022), https://www.supremecourt.uk/about/history.html. [4] See Josiah H. Symon, Australia and the Privy Council, 4 Journal of comparative legislation and international law 137, 137 (1922); see also Canada and the Privy Council, The Economist, (1937). [5] Vincent R. Johnson, The Magna Carta and the Beginning of Modern Legal Thought, 85 Miss. L.J. 621, 623 (2016). [6] Johnson, supra note 2, at 624. [7] Johnson, supra note 2, at 623-42. [8] Black’s Law Dictionary, Emergency (2022), https://thelawdictionary.org/emergency/. [9] Kim Lane Scheppele, North American emergencies: The use of emergency powers in Canada and the United States, 4 International Journal of Constitutional Law 213, 220 (2006) (hereinafter North American emergencies) (citing Grant v. Gould, 2 Henry Blackstone’s Reports 69 (1792)). [10] See generally Declare states of “climate emergency”: U.N. Chief to World Leaders, Reuters, (Dec. 12, 2020), https://news.yahoo.com/declare-states-climate-emergency-u-173713413.html. [11] Brandon J. Johnson, Executives in Crisis: An Examination of Formal and Informal Emergency Powers, 42 U. Pa. J. Int'l L. 341, 383 (2020) (hereinafter Executives in Crisis). [12] Executives in Crisis, at 383. [13] Executives in Crisis, at 383. [14] U.S. Const. art. I, sec. 9, cl. 2 (“The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it”). [15] Jason Collins Weida, A Republic of Emergencies: Martial Law in American Jurisprudence, 36 Conn. L. Rev. 1397, 1397 (2004) (hereinafter Republic of Emergencies). [16] Republic of Emergency, at 1397. [17] Republic of Emergencies, at 1402 (citing Luther v. Borden, 48 U.S. 1 (1849)). [18] Id. [19] Luther, 48 U.S. at 39. [20] Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). [21] Id. at 119. [22] 12 Stat. 755 (1863). [23] Moyer v. Peabody, 212 U.S. 78, 82 (1909). [24] Id. [25] Id. at 84. [26] 287 U.S. 378 (1932). Governor Sterling’s use of martial law was highly unusual and violated a 1931 District Court injunction preventing the enforcement of the Railroad Commission’s order. To ensure its enforcement, Governor Sterling relied on Texas statutory language about a “state of insurrection, tumult, riot, and a breach of the peace” to order the National Guard to enforce the order. [27] Republic of Emergencies, at 1417. [28] 327 U.S. 304 (1946). [29] Republic of Emergencies, at 1422 (describing statutory powers for governors to declare martial law with or without consultation with state legislatures). [30] Michael Hoover, The Whiskey Rebellion, Alcohol and Tobacco Tax and Trade Bureau, (Aug. 21, 2014), https://www.ttb.gov/public-information/whiskey-rebellion. [31] Executives in Crisis, at 384; see also 18 U.S.C. § 792; Pub.L. 65–150. [32] See generally Executives in Crisis, at 384. [33] Executives in Crisis, at 385; Ex parte Merryman, 17 F. Cas. 144 (1861) [34] Abraham Lincoln, President of the United States of America, Emancipation Proclamation (Jan. 1, 1863). [35] North American emergencies, at 219. [36] North American emergencies, at 221. [37] North American emergencies, at 221. [38] North American emergencies, at 2220. [39] See generally Executives in Crisis, at 389-90. [40] See generally NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Wickard v. Filburn, 317 U.S. 111 (1942). [41] Executives in Crisis, at 390; see also Korematsu v. United States, 323 U.S. 214 (1944). [42] United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Korematsu v. United States, 323 U.S. 214, 217-18 (1944). [43] See Alex Maclean, Urban Abundance: An Aerial Survey of Metro Boston Reveals a Regional Food System on the Rise, Lincoln Institute of Land Policy, (Jun. 23, 2021), https://www.lincolninst.edu/pt-br/publications/articles/2021-06-urban-abundance-aerial-survey-metro-boston-reveals-regional-food-system-on-the-rise. [44] See generally Cooperative Federalism, Center for the Study of Federalism, (2006), https://encyclopedia.federalism.org/index.php/Cooperative_Federalism. [45] See generally Overview of Federal Disaster Assistance, FEMA, (2022), https://training.fema.gov/emiweb/downloads/is7unit_3.pdf. [46] See North American emergencies, at 226. [47] North American emergencies, at 227. [48] North American emergencies, at 227. [49] House Un-American Activities Committee, First Amendment Encyclopedia, (2022), https://www.mtsu.edu/first-amendment/article/815/house-un-american-activities-committee. [50] Jeff Burbank, Robert F. Kennedy’s Crusade Against the Mob: Part 1, The Mob Museum, (Jun. 6, 2018), https://themobmuseum.org/blog/robert-f-kennedys-crusade-mob/. [51] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [52] Id. at 635. [53] FEMA, Civil Defense and Homeland Security: A Short History of National Preparedness Efforts 5 (Sept. 2006), https://training.fema.gov/hiedu/docs/dhs%20civil%20defense-hs%20-%20short%20history.pdf (hereinafter Civil Defense and Homeland Security). [54] Id. at 7. [55] Id. at 8. [56] Id. at 14. [57] North American emergencies, at 228. [58] North American emergencies, at 228. [59] See Defense Conversion, Institute for Policy Studies, (Jan. 1, 1997), https://ips-dc.org/defense_conversion/. [60] Civil Defense and Homeland Security, at 23. [61] Civil Defense and Homeland Security, at 23. [62] See generally Sonia Ben Ouagrham-Gormley, Barriers to bioweapons : the challenges of expertise and organization for weapons development 91 (2014). [63] Richard Preston, The Hot Zone (1994). [64] Thomas Spoehr, 2 Presidents, 2 Books, and the Origin and Intent of the Strategic National Stockpile, Heritage Foundation, (May 5, 2020), https://www.heritage.org/public-health/commentary/2-presidents-2-books-and-the-origin-and-intent-the-strategic-national. [65] Civil Defense and Homeland Security, at 27. [66] Executives in Crisis, at 393-94. [67] Patrick G. Eddington, The PATRIOT Act Has Threatened Freedom for 20 Years, Cato Institute, (Oct. 21, 2021), https://www.cato.org/commentary/patriot-act-has-threatened-freedom-20-years. [68] Id. [69] Dan Roberts, US imposes Ebola travel restrictions on passengers from west Africa, The Guardian, (Oct. 21, 2014), https://www.theguardian.com/us-news/2014/oct/21/us-limited-ebola-travel-restrictions-west-africa. [70] DeLorean L. Forbes, Defining “Emergencies”: What the United States Can Learn From the United Kingdom About National Emergencies and the Rule of Law, 37 Ariz. J. Int'l & Comp. L. 411, 423 (2020) (hereinafter UK National Emergencies). [71] UK National Emergencies, at 423 (at all times the UK could overrule international agreements through parliamentary supremacy). [72] UK National Emergencies, at 423. [73] See generally UK National Emergencies, at 424. [74] UK National Emergencies, at 425. [75] UK National Emergencies, at 425. [76] UK National Emergencies, at 428. [77] Lynn Wartchow, Civil and Human Rights Violations in Northern Ireland: Effects and Shortcomings of the Good Friday Agreement in Guaranteeing Protections, 3 Northwestern Journal of International Human Rights 1, 3-5 (2005), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1012&context=njihr (explaining that the Emergency Provisions Act of 1973, targeted exclusively to Northern Ireland, and the U.K.-wide Prevention of Terrorism Act of 1974 allowed detention without charges or access to counsel. U.K. officials also leaked intelligence files on I.R.A. sympathizers and human rights activists to loyalist militias who engaged in targeted attacks and killings). [78] UK National Emergencies, at 428. [79] UK National Emergencies, at 428. [80] Jean-Claude Paye, The End of Habeas Corpus in Great Britain, Monthly Review (Nov. 1, 2005), https://monthlyreview.org/2005/11/01/the-end-of-habeas-corpus-in-great-britain/. [81] See id; see also Indefinite Detention Without Trial in the UK, Human Rights Watch, (2005), https://www.hrw.org/legacy/backgrounder/eca/uk/1.htm. [82] North American emergencies, at 215. [83] North American emergencies, at 217. [84] North American emergencies, at 216. [85] North American emergencies, at 217. [86] North American emergencies, at 218. [87] North American emergencies, at 218. [88] North American emergencies, at 220. [89] North American emergencies, at 220 (citing In re Gray, 57 S.C.R. 150 (1918)). [90] North American emergencies, at 220. [91] North American emergencies, at 220. [92] American emergencies, at 220 (citing Fort Frances Pulp and Paper Co. v. Manitoba Free Press Co., [1923] 3 D.L.R. 629)). [93] Elenore Wade, Health Injustice in the Laboratories of Democracy, 29 Geo. J. on Poverty L. & Pol'y 177, 196 (2022) (explaining these were conditions that would ultimately give rise to prairie socialist movements and prompt the province of Saskatchewan to develop a single-payer healthcare system that was adopted nationwide in 1962). [94] North American emergencies, at 222. (citing In The Matter Of A Reference As To Whether The Parliament Of Canada Had Legislative Jurisdiction To Enact The Natural Products Marketing Act, 1934, Being Chapter 57 Of The Statutes Of Canada, 1934, And Its Amending Act, The Natural Products Marketing Act Amendment Act, 1935, Being Chapter 64 Of The Statutes Of Canada, 1935, [1936] 3 D.L.R. 622 (1936)). [95] North American emergencies, at 224. [96] North American emergencies, at 224. [97] North American emergencies, at 225. [98] North American emergencies, at 225. [99] Front de libération du Québec (FLQ), The Canadian Encyclopedia, (Oct. 6, 2020), https://www.thecanadianencyclopedia.ca/en/article/front-de-liberation-du-quebec. [100] 5 George V, Chap. 2, RSC 1985 c. W-2. [101] North American emergencies, at 228. [102] Constitution Act, 1982. [103]North American emergencies, at 231. [104] North American emergencies, at 231. [105]North American emergencies, at 231. [106] North American emergencies, at 237. [107] Section 13 – Protection against self-incrimination, Charterpedia: Government of Canada, (Sept. 1, 2021), https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art13.html. [108] Amanda Coletta, Trudeau defends using emergency powers against trucker protests, The Washington Post, (Nov. 25, 2022), https://www.washingtonpost.com/world/2022/11/25/canada-trucker-protest-emergencies-act/. [109] Id. [110] Convicts and colonisers: the early history of Australia, History Extra, (Dec. 26, 2010), https://www.historyextra.com/period/general-history/convicts-and-colonisers-the-early-history-of-australia/. [111] H.P. Lee et al., Emergency powers in Australia (2019) (not internally paginated) (hereinafter Emergency powers in Australia). [112] Emergency powers in Australia, Chapter 2. [113] (1916) 21 CLR 433, 468. [114] Emergency powers in Australia, Chapter 2. [115]Emergency powers in Australia, Chapter 2. [116] End of the White Australia policy, National Museum of Australia, (2022), https://www.nma.gov.au/defining-moments/resources/end-of-white-australia-policy#:~:text=Multicultural%20Australia,-While%20the%20creation&text=In%201973%20the%20Whitlam%20Labor,from%20nearly%20200%20different%20countries. [117] George Friedman, Australia’s Strategy, Stratfor, (May 22, 2012), https://worldview.stratfor.com/article/australias-strategy. [118] A History of the Department of Immigration: Managing Migration to Australia 57 (2017). [119] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, 233–34 (Lord Greene MR). [120] Emergency powers in Australia, Chapter 8 (citing Re Minister of Arts, Heritage and the Environment v. Peko Wallsend (1987) 15 FCR 274, 277 (Bowen CJ)). [121]Minister for Immigration and Citizenship v. Li, (2013) 249 CLR 364. [122] David Morrison & Patrick T. Quirk, An Australian Conundrum: Genomic Technology, Data, and the CovidSafe App, 33 Pace Int'l L. Rev. 43, 57 (2020). [123] Hannah Dowling, Updated: Border Closures in Every State and Territory, Australian Aviation, (Oct. 25, 2021), https://australianaviation.com.au/2021/10/explained-border-closures-in-every-australian-state-territory/. [124] Covid-19 Timeline, CDC Museum, (2022), https://www.cdc.gov/museum/timeline/covid19.html (hereinafter Covid-19 Timeline). [125] Will Weissert, DHS report: China hid virus’ severity to hoard supplies, AP, (May 4, 2020), https://apnews.com/article/us-news-ap-top-news-international-news-global-trade-virus-outbreak-bf685dcf52125be54e030834ab7062a8. [126] See Covid-19 Timeline. [127] See Covid-19 Timeline. [128] 2020 COVID-19 State Restrictions, Re-openings, and Mask Requirements, NASHP, (2020), https://www.nashp.org/2020-state-reopening-chart/. [129] Gregg Re, After attacking Trump's coronavirus-related China travel ban as xenophobic, Dems and media have changed tune, Fox, (Apr. 1, 2020), https://www.foxnews.com/politics/dems-media-change-tune-trump-attacks-coronavirus-china-travel-ban. [130] Coronavirus: The world in lockdown in maps and charts, BBC, (Apr. 7, 2020), https://www.bbc.com/news/world-52103747. [131] Charles “Cully” Stimson, A Constitutional Guide to Emergency Powers, Heritage Foundation (March 31, 2020), https://www.heritage.org/the-constitution/commentary/constitutional-guide-emergency-powers. [132] Id. [133] Giulia McDonnell Nieto del Rio & Ralph Ellis, Rhode Island will knock on doors and stop cars to find New Yorkers to slow the spread of coronavirus, CNN, (March 28, 2020), https://www.cnn.com/2020/03/27/us/rhode-island-tracking-down-new-yorkers/index.html. [134] Janelle Bludeau, DPS troopers now staffing Houston airports, enforcing governor's travel order, KHOU, (March 28, 2020), https://www.khou.com/article/news/health/coronavirus/dps-troopers-now-staffing-houston-airports-enforcing-governors-travel-order/285-099f918d-d7ec-45fe-8186-e9d555ae2379. The author of this paper was a personal witness to DPS travel enforcements with dozens of DPS officers acting as a state equivalent to Customs and Border Patrol at Dallas-Fort Worth International Airport on May 1, 2020. [135] Kate Goodrich, Travel Restrictions Between Texas and Louisiana Further Tightened as Texas DPS Sets Up Checkpoints on All Roadways Between the Two States, JW News, (Apr. 7, 2020), https://www.jw.com/news/insights-texas-covid19-airway-travel-restrictions/. [136] See generally Bailey Schulz, Free COVID-19 tests are on their way. Will they work for travel?, USA Today, (Jan. 19, 2022), https://www.usatoday.com/story/travel/2022/01/19/free-home-covid-tests-travel/6584729001/. [137] A Timeline of Covid-19 in Canada, The Star, (Jan. 24, 2021), https://www.thestar.com/politics/2021/01/24/a-timeline-of-covid-19-in-canada.html; see also Dan Mangan, Coronavirus response: US and Canada closing world’s longest border to non-essential traffic, Trump and Trudeau say, CNBC (March 18, 2020), https://www.cnbc.com/2020/03/18/trump-says-the-us-will-close-the-border-with-canada-to-non-essential-traffic.html. [138] Id. [139] Id. [140] Id. [141] Id. [142] Id. [143] Id. [144] Id. [145] Id. [146] David Elliott, These are the countries best prepared for health emergencies, World Economic Forum, (Feb. 12, 2020), https://www.weforum.org/agenda/2020/02/these-are-the-countries-best-prepared-for-health-emergencies/ (data prior to the pandemic placed only the U.S., U.K., and Netherlands ahead of Australia in preparedness). [147] Lidia Kelly, Australian PM Morrison defends lockdown strategy as daily cases hit record, Reuters, (Aug. 22, 2021), https://www.reuters.com/world/asia-pacific/australias-pm-morrison-defends-lockdown-strategy-until-majority-vaccinated-2021-08-21/. [148] Id. [149] Explained: Border Closures in Every Australian State, (Oct. 2021), https://australianaviation.com.au/2021/10/explained-border-closures-in-every-australian-state-territory/. [150] Olivia Day, Australia's biggest Covid quarantine camp to close after housing thousands of returned citizens as the NT declares the pandemic is OVER and scraps vaccine mandates and ALL rules, Daily Mail, (Jun. 9, 2022), https://www.dailymail.co.uk/news/article-10898777/Australias-biggest-Covid-quarantine-camp-close-Northern-Territory-scraps-vaccine-mandates.html. [151] Id. [152] Lidia Kelly, Australian police clash with anti-lockdown protesters, arrest nearly 270, Reuters, (Sept. 18, 2021), https://www.reuters.com/world/asia-pacific/australia-reports-1882-covid-19-cases-police-quell-protests-2021-09-17/; Thousands Of People Protest Coronavirus Lockdowns In Australia, AP, (Jul. 24, 2021), https://www.npr.org/2021/07/24/1020158692/australia-covid-lockdown-protests-sydney-arrests-coronavirus. [153] 50 U.S.C. § 1544. Copyright 2022

In this house we believe: Black Lives Matter, Women’s Rights are Human Rights, No Human is Ilegal, Science is Real, Love is Love, Water is Life, Injustice Anywhere is a Threat to Justice Everywhere—“We Believe” yard sign Is there a human right to water? The UN thinks so. In its July, 2010 Resolution 64/292, the UN General Assembly recognized a human right to water and sanitation. The Resolution read as follows: Sufficient. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. According to the World Health Organization (WHO), between 50 and 100 litres of water per person per day are needed to ensure that most basic needs are met and few health concerns arise. Safe. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person's health. Measures of drinking-water safety are usually defined by national and/or local standards for drinking-water quality. The World Health Organization (WHO) Guidelines for drinking-water quality provide a basis for the development of national standards that, if properly implemented, will ensure the safety of drinking-water. Acceptable. Water should be of an acceptable colour, odour and taste for each personal or domestic use. [...] All water facilities and services must be culturally appropriate and sensitive to gender, lifecycle and privacy requirements. Physically accessible. Everyone has the right to a water and sanitation service that is physically accessible within, or in the immediate vicinity of the household, educational institution, workplace or health institution. According to WHO, the water source has to be within 1,000 metres of the home and collection time should not exceed 30 minutes. Affordable. Water, and water facilities and services, must be affordable for all. The United Nations Development Programme (UNDP) suggests that water costs should not exceed 3 per cent of household income. The right to water is unusual among many resource-based human rights claims because it actually spells out a particular amount of water, 50-100 liters, which at the high end is about 26 gallons of water. That's a substantial amount. The human right to water and sanitation recognized by the UN suffers from the usual problems of vague second and third generation collective rights. These second and third generation rights are usually claims to resources, services, or some type of quality, like “right to education,” “right to healthcare,” or “right to a clean environment.” Because of scarcity, second and third generation rights are really claims to government action or redistribution. They are usually difficult to enforce and can easily be an excuse for governments to strip away first generation negative rights that are central to civil liberties: freedom of speech, belief, petition, the right to vote, and due process. Taken together with other first principles and the sound elements of human rights law, there is probably something amounting to a very limited right. If a government were to close down wells to deny a group of people water that would be a violation of human rights and natural rights. Similarly, a person might have some kind of cognizable right to small amounts of water to survive and forestall dehydration. But beyond that the claim to a right to water falls short. To be clear, striving for universal abundant clean water and reliable sanitation is a worthwhile goal, but declaring it a human right does nothing to achieve that objective. Instead of finding ways to improve infrastructure, create property rights—or even private causes of action to keep water clean—a human right to water rings hollow. Will the government of one country sanction the other because the wells and rivers because those water sources in the latter are too polluted? Especially in countries that adopt international law directly into their own national law, the UN resolution would suggest that there might be a cause of action to stop water restrictions, even in a city like Cape Town about to run dry. But why include “Water is Life” on the ubiquitous and sanctimonious “We Believe” signs that dot the American landscape? Where does water fit in the modern left-wing cosmology? For decades climate change activists, authors, and some geoscientists have promoted the idea that water is the next resource to be contested in war, joining oil, uranium, and gold. As a result, water scarcity fits neatly within the climate change framework, and is a hook to bring in support from militaries, nationalists, and conservatives. In most developed countries, particularly the US, water is nearly costless, costing just a few cents per gallon. To some on the left, it is offensive that water is packaged and sold in stores. It should simply be free. Water is a potentially easy way to win over skeptical minds to redistributive thinking.

This article originally appeared in 2018 in the Ground Below blog. A century ago, miners famously kept canaries in coal mines to warn of deadly fumes. Today, the bellwethers of different toxins live quiet lives tucked in the mud of rivers and lakes: freshwater mussels. These modern “canaries” have a special spokesperson in the form of Abbie Gascho Landis, a veterinarian, mother to a young family and perhaps one of the best emerging science writers of the 2010s, whose 2017 book Immersion tells the plight of these fascinating organisms. Freshwater mussels are part of the same phylum as snails, slugs and octopus and are believed to have existed for 500 million years. Globally, they play a key role in water purification. Mussels constantly ingest water through their foot muscle and are permanently immersed. An egg-size mussel can filter up to 24 liters of water a day and mussels in large numbers filter all the water in creeks, helping to make surface water safe for humans and our neighbors in the environment. Out of 890 mussel species around the world, 302 live in the US—and the southeastern US has the most biodiversity anywhere in the world. Every year, America’s population shifts further south, bringing new building, agriculture and quarrying that damages rivers, beginning with mussels. As filter feeders, they concentrate pollutants and because they rely on fish to host parasitic larvae mussels (harmless to the fish and to other species) they are especially vulnerable to overfishing. Historically, few people consumed freshwater mussels, because of high concentrations of putrescine. Choctaws were among the few that ate them regularly, crafting them into jewelry and crushing them to strengthen clay. Mussels secrete shells, adding rings like trees. Mussels first came under threat in the late 19th century, as they were fished not for food but for decoration. There was a brief craze in New Jersey, Arkansas, Wisconsin, Texas and Louisiana for mussel pearls, depleting many species and soon their shells were widely used as buttons. A German immigrant, Johann Boepple, launched a business in Muscatine, Iowa, punching buttons out of mussel shells, but met his fate along with the industry in the 1910s, when he cut his foot on a mussel shell and died from an infection. In the 20th century, major dam building projects for drinking water, irrigation and hydropower began in the South. Mussels don’t do well with dam building. Deep lake water has fewer nutrients, tends to be colder and has a different profile of dissolved oxygen than a river. Because most water released from artificial lakes comes from the base of dams, where the water is deepest, darkest and coldest it is low in oxygen and can cause lethal temperature shocks downstream. Mussels clump together in beds and don’t distribute evenly in rivers. They need a goldilocks zone of temperature. Islands and winding rivers slow water, making it easier for mussels to survive, but many of these twist and turns are eliminated by dam projects. The damming of the Coosa River caused the largest mass extinction of species in modern US history, claiming six mussel species and 34 different types of snails. The Tennessee-Tombigbee project from 1972 to 1985 proved to be a federal boondoggle that killed the river, leaving only a few remnant mussels in the detached East Fork of the Tombigbee River. Although dam building has mostly halted in the US, new threats have emerged for mussels. Zebra mussels arrived in the early 1980s and spread from the Great Lakes southward through America’s rivers. Unlike American mussels, they don’t need to parasitize fish and have nearly microscopic larvae with small tentacles for swimming, eating and latching on. So far, higher temperatures in the South have made it harder for them to thrive. Fluoxetine, the antidepressant better known as Prozac, causes deadly inflammation in mussels even at low concentrations in river water. Landis first discovered the plight of vanishing mussels through her husband, an aquatic biologist. As he researched for a PhD, the two naturalists relocated to Auburn University in Alabama, the center of mussel research. Spanning from the Appalachians to Floridian swamps, Alabama may be the state most overlooked for its biodiversity and it is now on the front-lines of the fight to keep rivers whole. Chewakla Creek begins by the Georgia line and flows past Martin Marietta Materials’ quarry, where alkaline effluent damages the water quality. Water disappears into sinkholes and becomes further eutrophied and useless near Auburn, Alabama from cattle, wastewater and golf course runoff. A local attorney, hired by residents troubled by the drying out of the creek in 2000—and frustrated with a new road for quarrying, limiting access to their properties—filed suit under the Endangered Species Act. Landowners ended up getting a Safe Harbor Agreement instead of a court settlement that required monitoring and active measures to prevent toxic material getting into the creek. The Chewakla Creek Safe Harbor Agreement, in 2003, was the first legal action taken to protect freshwater mussels. To save mussels and the rivers they keep clean, scientists first need to understand them. Landis and her husband dissected a giant floater mussel on their kitchen table, peering at the crystalline style—a clear, solid secretion in the stomach used to grind food—and took out the heart which pumps translucent hemolymph. In spite of having only three paired neurons, mussels can react to light, changes in temperature, chemicals and exposure to air. As a result, the American Veterinary Medical Association has actually created guidelines on euthanizing mussels. Like larger animals, mussels can have infections or cancers. Since the 1990s, scientists have discovered how to draw blood from mussels without killing them, piercing a vein in the muscle that holds the shell closed and some researchers at North Carolina State have used MRIs to explore mussel anatomy. Tiny cilia pump constantly, even for a time after a mussel’s death, drawing water through its gills. In addition to filtering water through their foot, they can also use it to eat. Using their sole foot, mussels move along creeks throughout the year and burrow into the mud for winter. Getting mussels to reproduce is key to their long term survival, but as Landis explains, mussel reproduction is complicated. “My mussel reproduction knowledge was a summary akin to CliffsNotes of Shakespeare’s plays,” she quipped. Many mussel species release sperm into creeks. Individual cells join together in common plumes, until they get sucked up along with food into the female mussel’s gills. Until 1988, no one had any idea how glochidia—mussel larvae—got into fish. Bob Butler, a biologist working in the Choctawhatchee River noticed a fish-like lure on a southern sandshell mussel. It turns out glochidia are packaged to look like bugs, worms and small fish. Mussels are some of the most amazing imitators in nature, crafting organic lures far more convincing than anything a human angler has access to. Some species are generalists, while others rely on a single species. Threatened bankclimber mussels rely on equally endangered Gulf sturgeon. Getting out into rivers to study mussels poses its own challenges. Aquatic biologists have received plenty of quizzical looks wandering streams in wetsuits, but they face real hazards from water moccasins, alligators and the ever present risk of arrest (or getting shot) if they stray onto unmarked private property. According to Landis, aquatic biologists find a surprising number of baby doll heads stuck in the river mud, which they’ve come to regard as a sign of good luck. While the situation for mussels in some rivers looks dire, new hope is emerging. The Alabama Aquatic Biodiversity Center, near Marion, is the deeded over remains of a shuttered federal research station closed in 1995. But since the State of Alabama reopened it in 1999, it has led the largest non-game animal species reintroduction for threatened snails and mussels. Today, Alabama and its neighbors Louisiana, Tennessee and Georgia are the epicenter of efforts to understand and protect mussels. The Upper Mississippi River once had over 40 species of mussels, extinguished by water pollution around 1900. But today, thanks to a cleaner environment, 20 species have returned. However, some like the Higgins eye pearlymussel are still endangered—threatened by the introduction of zebra mussels riding up-river on the hulls of boats. Through her literary science writing in Immersion, Abbie Gascho Landis makes a strong case for the need to preserve America’s bizarre and beautiful mussels—and by extension the many threatened mollusks worldwide. The future of our rivers, our water and our environment may depend on it. For federal, state, and local policymakers, Landis' book is a reminder of the many often overlooked environmental issues that can have a big impact on the overall health of ecosystems.

I. INTRODUCTION Kabul has fallen. Russia and Ukraine fight bitterly for the Donbas and Southern Ukraine. An emergent China expands into the South China Sea and throttles water in the Himalayas destined for its South Asian neighbors. [1] Russia, Pakistan, and Iran maneuver in Central Asia and the Middle East. Gone are the days of the "end of history," when the U.S. enjoyed a unique military, economic, and cultural advantage on the world stage, in the years immediately after the fall of the Soviet Union.[2] The United States faces growing threats throughout the world and waning commitment from its slow-growth European allies. But a burgeoning relationship with the world's largest democracy and key Pacific Ocean partners promises new hope in the Indo-Pacific region—a loosely defined tract of ocean, coastline, and shallow seas encompassing the Indian Ocean and Western Pacific Ocean.[3] A new Indo-Pacific Treaty can formalize these relationships borrowing text from previous mutual defense treaties to create a best of breed for current-day exigencies. Talk of a "multi-polar world" is already a bit cliché.[4] A globalized world, without the dominance of a single player like the Soviet Union has created a new version of great power politics, akin to that of the world before World War II, albeit with even more powerful players.[5] For most of its history, the U.S. eschewed binding agreements with foreign countries.[6] The Senate famously withheld support for the League of Nations and adopted only a watered down version of the Kellogg-Briand Treaty in the 1920s.[7] However, in the immediate aftermath of World War II, the U.S. in its new role as superpower brokered numerous multi-lateral mutual defense treaties. These treaties call on member nations to undertake defense against common enemies collectively.[8] The post-Cold War world saw some of these treaty systems, particularly the North Atlantic Treaty Organization (NATO), put to the test. The strain on these treaty systems raised important questions about the effectiveness of these agreements.[9] The U.S. could never go it alone, and it certainly cannot go it alone now. A new generation mutual defense treaty is needed with narrowly-tailored aims and a degree of enforceability for all members to counter new threats. Washington policymakers have an opportunity to formalize and ratify the existing Quadrilateral Security Dialogue with India, Japan, and Australia as an Indo-Pacific Treaty Organization. An enhanced agreement would build on the lessons of over seventy years of mutual defense treaties, providing an opportunity for other key regional players to join, such as Indonesia, the Philippines, Vietnam, Thailand, Malaysia or South Korea. In spite of growing threats to global interconnectedness, the world is linked by trade like never before and so an Indo-Pacific Treaty would need to consider the role of trade and focus primarily on freedom of navigation. Without the intense ideological dimensions of the Cold War, a Treaty must also leave open the possibility of cooperation with current opponent nations like China and Russia, and grant observer status to these states to prevent the escalation of tensions. Through formalized cooperation, the U.S. and its Indo-Pacific allies have an opportunity to fend off challenges to global security. The U.S. could work to coordinate a new Indo-Pacific Treaty with allies in the Indo-Pacific region to improve collective security in the face of threats from China. Section II will discuss the background of military alliances, mutual defense, and U.S. treaty involvements, as well as ongoing geo-strategic developments in the Indo-Pacific region. Section III, in turn, will examine the case for an Indo-Pacific Treaty, and Section IV analyses the feasibility of implementing a treaty. II. BACKGROUND A. Military Alliances, Mutual Defense, and U.S. Treaty Commitments Military alliances have a deep history.[10] Thucydides in the 5th century B.C.E. analyzed the reasons that alliances formed and ancient states like Rome and Messina allied in the Punic Wars against Carthage.[11] Foreign affairs scholars distinguish between security alliances and multilateral alliances.[12] Security alliances involve a pledge of collective defense, where member nations agree to defend against an outside threat, whereas multilateral alliances may share intelligence and training capabilities, but typically fall short of collective defense.[13] In recent history, the NATO is perhaps the most famous example of a security alliance.[14] The Arab League and the now defunct South East Asia Treaty Organization (SEATO) are characteristic of multilateral alliances.[15] Since the early 20th century, two organizations have emerged as a hybrid of these older concepts: the League of Nations in the interwar period, and now the United Nations can be described as collective security alliances, aimed at promoting international stability.[16] In the early years of the republic after independence, U.S. leaders were wary of mercenary balance of power politics in Europe.[17] In his farewell address, President George Washington cautioned Americans to avoid permanent alliances.[18] Perhaps ironically, the new nation owed its independence at least in large part to the 1778 Franco-American Treaty.[19] At the time of independence, the U.S. was a largely Protestant nation and Federalists soon pressed for closer trade ties with Britain.[20] The US declared neutrality in the 1790s and brokered the 1795 Jay Treaty with Britain, ushering in a period of maritime conflict with France under President John Adams during the Quasi-War.[21] As a gestating republic, developing its domestic industries, the US largely avoided foreign alliances throughout the 19th century.[22] President James Monroe promulgated the now famous Monroe Doctrine, asserting a U.S. sphere of influence throughout the Americas.[23] By the 1880s, the U.S. had grown to become one of the world's largest economies but still preferred unilateral action: "opening" Japan and Korea and issuing the 1899 Open Door Notes calling for equal opportunity to trade with China.[24] The Spanish-American War and the voyage of the Great White Fleet indicated that with the nation's growing significance, officials in Washington now had international—and imperial—ambitions.[25] In spite of this change in attitude, the U.S. remained hesitant about foreign entanglements, resisting involvement in World War I until the cause celebre of the sinking of the Lusitania.[26] In 1917, President Wilson launched a brief involvement in the war, dispatching the American Expeditionary Force to France.[27] American units refused to integrate with British and French units on the Western front.[28] By the end of World War I, the U.S. was an acknowledged world power.[29] However, isolationist senators in Washington rejected Wilson's proposed involvement in the League of Nations.[30] American officials in Constantinople refused to coordinate with other European powers into the 1920s, while in China, the U.S. was more receptive to collaboration with Europeans and the Japanese.[31] U.S. Secretary of State Frank Kellogg deftly avoided a formal defense commitment with France, pushing for the lofty Kellogg-Briand Pact instead.[32] World War II transformed American thinking on foreign treaties, as the U.S. emerged from the war as a superpower. Compared with World War I, American military leaders were willing to coordinate operations, as when General George Marshall implemented the Combined Joint Chiefs with Britain.[33] The U.S., Britain, and Soviet Union shared resources throughout the war, but the relationship suffered from serious ideological divergences. The U.S. and Britain were the most aligned of the three major allies, and President Roosevelt adopted the Atlantic Charter in 1914 with Winston Churchill, articulating wartime goals.[34] Multilateral collective defense treaties surged in popularity in the decade immediately after World War II, many with the U.S. at the helm.[35] In 1947, countries in the Americas adopted the Rio Treaty, providing that member states would assist one another in the event of attack.[36] Following the creation of the Western European Union in 1948, 1949 witnessed the adoption of the North Atlantic Treaty Organization (NATO).[37] This new treaty included the U.S. and Canada as well as much of Western Europe and significantly indicated in Article V that an attack on any individual member would be considered an attack on all members.[38] Building on Rio and NATO, the U.S. brokered the ANZUS Pact in 1951 with Australia and New Zealand.[39] The South East Asia Treaty Organization (SEATO) formed soon after, modeled loosely on NATO. The new organization included the U.S., Australia, New Zealand, the Philippines, U.K., France, Thailand, and Pakistan.[40] Other collective defense arrangements were organized without U.S. intervention, such as the 1948 treaty creating the Western European Union or the Arab League's 1950 Joint Defense Treaty.[41] In spite of the commonality of collective security treaties, mutual defense provisions have only rarely been invoked.[42] SEATO's mutual defense provisions were never formally invoked, but in 1963 U.S. Secretary of Defense Robert McNamara and Secretary of State Dean Rusk relied on the treaty's obligation to "meet common danger" as a basis for U.S. involvement in the Vietnam War in support of South Vietnam.[43] NATO expanded considerably after the Cold War during the 1990s and launched armed interventions in Bosnia and Kosovo.[44] Following the September 11, 2001 attacks, the U.S. invoked Article 5 of the NATO Treaty, prompting an intervention by the alliance in Afghanistan.[45] B. Current Challenges in the Indo-Pacific A worldwide confrontation is emerging between the U.S. and China, as the two superpowers vie for economic and political power.[46] This new contest for military, political, and economic power has resulted in a heightened focus on what strategists and leaders loosely term the "Indo-Pacific."[47] Although the precise bounds of this newly imagined geo-strategic region are unclear, "In terms of geo-spatiality, the Indo-Pacific is broadly to be understood as an interconnected space between the Indian Ocean and the Pacific Ocean."[48] Within this broader region, one of the greatest areas of tension is the South China Sea.[49] One-third of all global shipping passed through the South China Sea in 2016, amounting to over three trillion dollars of commerce.[50] The South China Sea is a key chokepoint for maritime trade, but is not the only area of strategic maritime geography in the Indo-Pacific region.[51] A tiny archipelago of rocky islands east of Taiwan are known as either the Senkaku or Diaoyu islands—and due to a unique position astride the sea lanes and valuable seabed hydrocarbon resources are fiercely disputed between China, Japan, and Taiwan.[52] Portions of the Indian Ocean and adjoining waterways have also gained increased strategic significance, particularly the Strait of Malacca between Indonesia and Malaysia, and parts of the Bay of Bengal that are within striking distance of long-range Chinese anti-ship missiles.[53] China published maps in 1948 claiming the majority of the South China Sea and renewed this claim in a correspondence with the UN in 2009, asserting ownership of 3.5 million square kilometers of sea, and an estimated 193 trillion cubic feet of natural gas and eleven billion barrels of oil.[54] China is within its rights to claim an exclusive economic zone (EEZ) extending 200 nautical miles beyond its shoreline, because it is a party to the UN Convention on the Law of the Sea. Despite this right, the claims in the South China Sea by China stretch hundreds of nautical miles further than its acknowledged EEZ.[55] Besides the value of fisheries and sea trade in the South China Sea, the presence of extensive petroleum resources in the region is significant because China is one of the world's largest oil and gas consumers, and relies heavily on imports.[56] Indications of undersea oil and gas reserves in 1969 prompted aggressive territorial claims by multiple countries in the South China Sea.[57] Currently, the Philippines, China, Taiwan, Vietnam, and Malaysia each have territorial claims in the Spratly Islands.[58] The Philippines, China, and Taiwan have competing claims to the Scarborough Shoal.[59] China has pursued its claims most aggressively, identifying its claims on maps of the South China Sea with an infamous "nine-dash line," and drawing sediment off the seabed to construct artificial islands.[60] After using fill to make islands out of several submerged reefs, China has installed airstrips, harbors, and radar stations for military use.[61] Because the U.S. is the dominant naval power in East Asia apart from China and Japan, it routinely patrols and surveils the South China Sea in furtherance of freedom of navigation.[62] In 2001, this resulted in a series of confrontations between the US and China, including a Chinese frigate's interception of the hydrographic ship U.S.N.S. Bowditch and a collision between a U.S. Navy EP-3E ARIES Signals Intelligence aircraft and a Chinese fighter jet.[63] Beginning in the late 2000s, incidents occurredagain, including harassment of U.S. warships and interception of U.S. surveillance aircraft.[64] Simultaneously, as China began constructing artificial islands, the U.S. sent the destroyer Lassen to sail within in twelve nautical miles of Subi Reef[65] and dispatched B-52 bombers to fly over an artificial island in December, 2015.[66] China's actions in the South China Sea have hardly gone unnoticed by neighbors in the region. In 2013, the Philippines began arbitration proceedings against China under Articles 286 and 287, and Article 1 of Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS).[67] Both countries are party to UNCLOS, and therefore the Philippines sought a judgment on China's historic claims and entitlements, and whether its activities were lawful.[68] China refused to participate and rejected the arbitration, but UNCLOS allows such proceedings to continue even if a party is absent.[69] On July 12, 2016, the Tribunal issued its report and held that any historical rights possessed by China were eliminated by UNCLOS exclusive economic zone (EEZ) provisions.[70] In 2004, a massive tsunami devastated Indonesia and India, prompting the creation of a Tsunami Core Group.[71] The group evolved into an ad hoc concert between the U.S., Australia, Japan, and India, known as the Quadrilateral Security Dialogue, and held the two Malabar naval exercises in 2007.[72] The concert was abandoned out of fear of irritating China, but revived again throughout the 2010s as China became more aggressive in its foreign policy with new dialogues and naval exercises between the original four Quad "members."[73] The Quad's revival began in November, 2017 during the first year of the Trump presidency.[74] Throughout the intervening decade, the U.S. military initiated its "Pivot to Asia" in 2011 and attempted to broker the Trans-Pacific Partnership for trade.[75] The Trump administration went further, with the U.S. Navy inaugurating its Free and Open Indo-Pacific policy, and Washington accusing China of currency manipulation and intellectual property theft.[76] The U.S. mounted a trade war with China and condemned human rights abuses in Hong Kong.[77] European states have a substantial stake in world trade, but are mostly at the periphery in ongoing confrontations with China.[78] Nevertheless, France, Germany, and the Netherlands have all published Indo-Pacific strategies. [79] The EU has five existing strategic partnerships in the Indo-Pacific with China, India, Japan, and South Korea, and the EU in 2018 announced an EU-Asia connectivity strategy, loosely modeled after China's Belt and Road economic integration initiative.[80] Of states situated outside the Indo-Pacific, the U.K. and France could be considered implicitly aligned with the Quad.[81] The U.K. has a long history of concern over world trade and freedom of navigation, and maintains a military base in Brunei.[82] France considers itself a full Indo-Pacific country, with 1.5 million residents across the Indian and Pacific oceans, and ninety-three percent of its exclusive economic zone in the region.[83] Many states abutting the Indo-Pacific share in indignation about China's actions in the South China Sea, and broad-spectrum concerns about Chinese expansionism.[84] The members of the Quad, implicitly aligned European states, and other regional players remain interested in principle in a rules-based order for freedom of navigation in the Indo-Pacific, but divided in their degree of opposition to China.[85] The European Parliamentary Research Service observed, "The other Quad countries [and other regional powers], being geographically closer or more economically linked to China. . .than the U.S., have been more circumspect in identifying Beijing as a threat actor, and have voiced support for an inclusive concept about the Indo-Pacific."[86] Although potential Quad members differ in degree of willingness to confront China, all share common concerns about expanding Chinese aggression in the region.[87] III. LEGAL ANALYSIS Mutual defense treaties are rarely invoked, though the behavior of policymakers suggests that such agreements offer an ability to express geo-strategic objectives—and deter potential adversaries.[88] The NATO Treaty has seen some of the most widespread use. After the specter of Soviet attack dissipated at the end of the Cold War, treaty members pivoted to interventions in the former Yugoslavia. The U.S. carried out the only invocation of the treaty’s Article V mutual defense provisions after the 9/11 attacks, prompting a nearly twenty-year NATO mission in Afghanistan.[89] A future mutual defense agreement can provide a best of breed, based on the mostly successful experiences of the NATO alliance and the hard-fought disagreements that that treaty—and others like it have engendered. Additionally, an Indo-Pacific Treaty needs to respond to real-world circumstances to demonstrate potential as an effective agreement. Therefore, such a future treaty must (1) carefully define objectives, (2) set boundaries on intervention, (3) ensure members spend proportionally, and (4) consider the place of trade and human rights. It should also provide a meaningful framework for engagement with current day adversaries—and future diplomatic alignment. A. Defining Objectives, Constraining Conduct Freedom of the seas and territorial integrity must be the highest objectives of an Indo-Pacific Treaty. But how should these objectives be achieved and how could a treaty be narrowly tailored to these goals? Indo-Pacific Treaty members should agree to uphold the duties of cooperation outlined in Part IX of the UN Convention on the Law of the Sea, Article 123, which governs enclosed and semi-enclosed seas.[90] A key objective for an Indo-Pacific Treaty is to prevent the entanglement of Indo-Pacific allies with an India-Pakistan conflict.[91] In the years since the 1999 Kargil War that nearly became a nuclear conflict, tensions have simmered, but at times nearly boiled over between the two states. [92] Tensions remain about Jammu and Kashmir, and India blames Pakistan for backing Islamist militants who carried out the 2008 Mumbai terrorist attacks.[93] Border skirmishes have intensified in recent years, with Indian airstrikes into Pakistan in 2019 and an internet blockade combined with counter-insurgency operations in Kashmir in 2020.[94] Border tensions have also increased with China, culminating in a deadly fight between soldiers of both countries at high altitude in the Galwan Valley in June, 2020.[95] India also faces internal struggles, related to perceived discriminatory policies against Muslims[96] and rural poverty.[97] Simply put, an Indo-Pacific Treaty must ensure that member states are not drawn into any armed conflict between India and Pakistan stemming from Kashmir territorial disputes or religious strife. India has defended its territory successfully for over seventy years and can continue to do so; nothing in an Indo-Pacific Treaty would prevent other member states from providing India with supplies or technical military assistance for border conflicts or internal insurgencies if those states wish. An Indo-Pacific Treaty must focus principally on freedom of navigation, although defense of member states from outright acts of aggression by China would also be within the bounds of the treaty. Based upon current developments in the South China Sea and the build-up of China's navy, it appears that Chinese aggression might take the form of harassing or sinking foreign fishing vessels, cargo ships, naval, or oceanographic vessels, particularly within the South China Sea. China's military is large but much less experienced in combat than that of India, the U.S., or Australia.[98] Except for its participation in the Korean War, a brief border war with India in 1962 and with Vietnam in 1979, China has had few expeditionary involvements.[99] However, over the long-term, it is possible that China might deploy uniformed or irregular forces in neighboring countries, or launch airstrikes against neighbors.[100] A point of variation between an Indo-Pacific Treaty and the NATO Treaty, is the need to eliminate the central role of the U.S. in archiving treaty instruments.[101] Article 14 of the NATO Treaty indicates that "[Treaty documents] shall be deposited in the archives of the Government of the United States of America."[102] To signal equality among all member states, each member state of an Indo-Pacific Treaty should archive each treaty document to the same degree. Since the spate of mutual defense treaties in the years immediately after World War II, technology has developed substantially. Cyberwarfare is now a major concern in modern conflicts, with a dimension of non-state actors and hackers who attack public and private systems.[103] The threat of cyberattacks, where state-backing can be difficult to determine, means that an Indo-Pacific Treaty must be tightly proscribed.[104] Leaving things somewhat vague in a treaty instrument allows for greater flexibility in responding to attacks. However, it is important not to formalize a requirement for all members to respond to a cyberattack on one member nation because of the risk of a rapid escalation to armed conflict. The treaty would serve as a touchpoint for member states to share intelligence about cybersecurity threats, as well as uninfected hardware, cybersecurity software, and perhaps even secure backup capability. While novel, the concept of secure, "air-gapped" backups to improve redundancy against cyberattack is not untested. Russia targeted Estonia with cyberattacks in 2007, temporarily taking down government and banking websites. In response, Estonia established a high-security "data embassy," with a data center in Luxembourg.[105] If flexibility is the objective with cybersecurity, the same is true for pandemic responses. The Covid-19 pandemic witnessed bouts of nationalistic policymaking from all corners, as countries prioritized masks, medical equipment, and vaccines for their own citizens. As some of the pandemic's pressures relented after the advent of vaccines, the leaders of the four Quad nations met virtually to coordinate vaccine sharing initiatives.[106] Epidemics and pandemics are easy to frame as a metaphor for war. But it is important to separate analogy from actuality. Pandemics are different than war because the "enemy" is invisible, natural, and non-strategic, and cannot be deterred through diplomacy or military strength. An Indo-Pacific Treaty could serve as a starting point for sharing of vaccines, medical research, and medical technology, but combatting a pandemic is a sufficiently different task that it does not belong as a formal treaty objective. A pandemic response typically involves private or public healthcare personnel, pharmaceutical researchers, and typically private sector medical equipment makers that exist outside the traditional purview of militaries. Therefore, an Indo-Pacific Treaty should not encompass pandemic preparedness. B. Spending Requirements and Enforcement Mechanisms The NATO Treaty requires member nations to spend two percent of gross domestic product on national defense.[107] Candidate and later president Donald Trump vigorously criticized other NATO members for failing to make payments in-line with the treaty, and by 2018 even NATO Secretary General Jens Stoltenberg was forced to admit that only eight of the alliance's twenty-nine members were making their requisite payments.[108] Currently, there is no mechanism to expel NATO members, with its view of all thirty members as equal parts of the organization.[109] In light of the contribution concerns which emerged intensely, but briefly during the Trump presidency, an Indo-Pacific Treaty must include an ombuds mechanism to voice concerns among member states, and carry out a degree of internal policing. Furthermore, it must include a means to discipline and even expel member states, to affirm its commitments. An Indo-Pacific Treaty, even if initiated by U.S. policymakers, must be more than simply U.S. defense of a vast region of the Earth with little participation from treaty allies. The World Trade Organization's Appellate Body, which is used to resolve international trade disputes could serve as a model for some form of secretariat to resolve disputes about contributions among Indo-Pacific Treaty member states.[110] C. Observer Status for China and Russia The Cold War was defined by a global clash of ideologies with Marxist-Leninist communism and Third World independence movements on one side and democratic, capitalist, and traditionalist authoritarian regimes on the other.[111] The emergence of a proposed "Cold War II" between Western liberal democracies and China and Russia is described in terms of a clash between Western democratic ideals and nationalist, autocratic ideas, albeit with far less extremes of ideology than the original Cold War.[112] Professor Michael Doyle argues that “Neither Russia nor China is as implacably hostile as the USSR or PRC were during the Cold War. There are areas of common interest between current actors.”[113] For instance, China and the US share concerns about North Korea's nuclear weapons program.[114] This likely remains true even with the fallout of the Russia-Ukraine War. Throughout most of history, a multipolar world has predominated, with multiple states that amount to great powers vying for power and influence.[115] After a comparatively unique period in which two superpowers—and then just one—predominated, great power politics are reemerging.[116] In the past, great power alignments commonly shifted, but such concerts rely on a relatively stable configuration of power, common interests, and a looming crisis.[117] Because the relative power of many great powers is rapidly changing, it is difficult to say whether a new set of global concerts could arise.[118] In spite of the strong possibility that this pessimistic analysis is correct, an Indo-Pacific Treaty must consider ways to assuage the concerns of great powers that are not voting members. NATO's relationship with Russia is instructive. In December, 1991, as the Cold War drew to a close, new Russian president Boris Yeltsin wrote to NATO indicating that Russia wanted to join the alliance.[119] Throughout the rest of the 1990s, Russia descended into economic chaos and corruption, buttressed by foreign IMF lending leaving it in no position to join NATO.[120] In exchange for aid, Russia acceded to the Founding Act, establishing the Partnership for Peace and the NATO-Russia Permanent Joint Council, in an effort to make Russia a de facto ally.[121] The Permanent Joint Council was intended to foster discussion with Russia on joint issues, notifying Russia of upcoming NATO operations, without granting it a veto.[122] The idea of any closer relationship between Russia and NATO is currently off the table.[123] NATO started with the right idea of engagement with an admittedly flawed Russia, but never opened the possibility of further growth in the alliance.[124] The degree to which NATO seemingly looked askance at Russia in the 1990s is ironic given that the second largest military in the NATO alliance is fielded by Turkey, a nation that ranked only a few points ahead of Russia in the latest Freedom in the World assessments.[125] Observer status might also be important for expanding membership in an Indo-Pacific Treaty to states that might be "on the face" due to current trading relationships. Indonesia is the world's third largest democracy and as an archipelago nation has a major stake in freedom of the seas.[126] Indonesia ranked low in U.S. priorities except when Suharto came to power in a violent anti-communist bloodbath in 1965. In the late 1990s, the U.S. sanctioned Indonesia as Suharto lost popularity—and over its actions in East Timor—leading Jakarta to reorient toward China, India, and Russia.[127] Indonesia has economic touchpoints with potential Indo-Pacific Treaty members, particularly Japan, which procures most of its natural gas from Indonesia and has a history of foreign investment and disaster assistance.[128] Officials in Jakarta are wary of Chinese claims in the South China Sea and the country's yawning trade deficit with China, yet China remains the country's biggest trading and foreign investment partner.[129] D. Free Trade and Human Rights Most mutual defense treaties were adopted in the mid-20th century at a time before the reduction of tariff barriers and liberalization of international trade.[130] Today, regional customs and trade unions are commonplace, ranging from NAFTA and CAFTA to the European Union.[131] But thus far, trade has not figured in mutual defense treaties. The U.S. has ratified Defense Trade Cooperation Treaties with the U.K. and Australia in 2010 and more recent vaccine sharing with India, Australia, and Japan hints at the possibility that trade generally, or in a defense context, might be a valuable element of future treaties.[132] Because of the relative novelty of including trade provisions in a mutual defense treaty, a proposed Indo-Pacific Treaty would do best to include an "agreement to agree," prompting member nations to negotiate in the future. The U.S. has attracted domestic and international criticism for its historical support of anti-communist authoritarian regimes during the Cold War and modern-day alliances with illiberal states like Saudi Arabia, Vietnam, Turkey, and Central Asian powers. Yet human rights objectives have not faded from the scene. Every country faces some human rights challenges, although these challenges vary widely. Because all prospective members have acceded to major human rights instruments the inclusion of a commitment to human rights would be a worthy inclusion, and depending which party is in the majority in Congress might be a part of reservations qualifying U.S. participation in a treaty.[133] Adhering to a commitment to human rights and humane treatment of prisoners of war or detainees is important, even if adversary nations do not take similar steps. Treaty member states need to be prepared to detain people who are violent non-state actors like terrorists and pirates in accord with the laws of war, and be prepared for the possibility that adversaries will use "irregular," un-uniformed forces.[134] China is borrowing from Russia's use of irregular forces in Ukraine and militarizing civilian fishing vessels.[135] E. Prospects for Adoption As an international agreement, an Indo-Pacific Treaty has better prospects for implementation than many other instruments. However, it would likely face political headway within the U.S. and might not withstand divergences in the foreign affairs of the prospective Indo-Pacific allies. Indian participation would be an important breakthrough for Indo-Pacific security. But Indian domestic policy might produce stumbling blocks for a treaty. Additionally, efforts to avoid involving other Indo-Pacific Treaty members in a confrontation between India and Pakistan might in-turn irritate policymakers in Delhi and could even prompt India not to accede to a treaty agreement at all. An Indo-Pacific Treaty could be quite successful with the four members of the Quad.[136] But to have an even greater impact in the region, a treaty would ideally include the regional powers of Southeast Asia, particularly Vietnam, Malaysia, the Philippines, and Indonesia.[137] The near universal global non-recognition of Taiwan means that Taiwanese involvement would likely be informal.[138] Apart from Taiwan, the aforementioned states are all members of the Association of Southeast Asian Nations (ASEAN), and approach international relations from similar perspectives.[139] The ASEAN countries emerged from intractable civil wars and political violence toward the end of the Cold War and benefited from U.S. control of the sea, experiencing rapid economic growth and even pushing back against China's aggression in the South China Sea.[140] This resolve flagged throughout the 2010s as cooperation in the region broke down, and many states like Malaysia transitioned toward a more traditional policy of making nice with China.[141] The region eschews outside influence, and some of its poorest members like Cambodia—as well as autocracies like Myanmar—have shifted toward the Chinese sphere of influence out of economic necessity or in response to Western chastising.[142] All of this could deter Indo-Pacific Treaty membership, but some of the largest countries Southeast Asia, particularly Indonesia, are distancing themselves from ASEAN to combat Chinese influence and might be candidates for membership.[143] Within the U.S., both Republicans and Democrats have favored a heightened focus on China, although the exact defense and foreign policy prescriptions have varied.[144] So far, the Biden administration has signaled some willingness to coordinate with Indo-Pacific allies.[145] It has also expanded the U.S. focus on the Indo-Pacific region.[146] In September, 2021, the Biden administration unveiled the AUKUS agreement, with Australia and the U.K., sharing AI and nuclear-powered submarine technology.[147] AUKUS signaled strong interest in Indo-Pacific issues, but focused on two countries the U.S. already has close ties with and alienated France, which lost a valuable defense contract with Australia.[148] The Trump administration spurred the relaunch of the Quad and the Biden administration has picked up the reins since taking office in January, 2021, suggesting a degree of continuity between the foreign policy of both administrations. Trump's term may have introduced multiple trends to U.S. foreign policy, such as: (1) a strong preference for alternatives to multilateral treaties, and (2) greater hostility to China.[149] If this observation holds true, it may weigh against the passage of an Indo-Pacific Treaty.[150] A potential barrier to adoption is U.S. hesitation about further defense commitments at a time when many citizens and policymakers fear the country is in retreat on the world stage, and unable to keep up its existing commitments.[151] But extensive case law limiting the application of treaties domestically means the U.S. would not be mandated to participate in a dangerous conflict under the terms of an Indo-Pacific Treaty. In 1979, President Carter established that a US president could withdraw unilaterally from a treaty, revoking the U.S. mutual defense treaty with Taiwan.[152] President George W. Bush, in-turn, withdrew the US from the Anti-Ballistic Missile Treaty in 2002.[153] Presidential powers have tended to be extensive in the area of foreign relations and presidents have the both the sole ability to recognize other states and the ability to create compacts with other states without involving the Senate.[154] Under this reasoning, the president might see no reason to push for an Indo-Pacific Treaty, given the ability to broker seemingly more personal compacts with a similar effect.[155] In spite of case law indicating substantial presidential authority to withdraw the U.S. from an international agreement, a formal treaty promises slower changes than the wide variations in policy common between American presidential administrations.[156] Over the past decade, several U.S. attitude changes have signaled uncertainty to allies: the hasty withdrawal from Iraq in 2011 resulting in the rise of the Islamic State militant group, the nearly overnight pullout of forces from Kurdistan under President Trump, and the remarkable chaos and unpreparedness after the fall of Kabul in 2021.[157] Because of these instances of strategic flightiness, the U.S. may need to undertake a policy shift in-favor of formal agreements to reassure other countries and to limit the same sort of abrupt abandonment by allies in the future. IV. CONCLUSION The U.S. should move to formalize its relationship with Indo-Pacific allies through a mutual defense treaty that lays out a narrowly-tailored mission, mandates a common proportion of defense spending, and avoids dangerous entanglements with India's border disputes. A treaty must grant the President considerable flexibility to act, but also erect guardrails for Congress to prevent Executive Branch over commitment of forces. In recognition of an integrated world with complex great power politics, the treaty must also invite current opponent nations to observe—leaving open the possibility of future realignment. REFERENCES [1] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [2] See generally Jonathon R. Macey & Geoffrey P. Miller, The End of History and the New World Order: The Triumph of Capitalism and the Competition Between Liberalism and Democracy, 25 Cornell Int'l L.J. 277, 279-80 (1992). [3] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [4] See generally Stanimir Alexandrov et al., An Introduction: International Law in a Multipolar World, 107 Am. Soc'y Int'l L. Proc. 1, 1 (2014). [5] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [6] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). [7] Jonathan Zasloff, Law and the Shaping of American Foreign Policy: The Twenty Years' Crisis, 77 S. Cal. L. Rev. 583, 656, 670 (2004). [8] Jeremy K. Davis, Bilateral Defense-Related Treaties and the Dilemma Posed by the Law of Neutrality, 11 Harv. Nat'l Sec. J. 455, 469-70 (2020). [9] See generally Andrea Denise Botticelli, The Premiere of the North Atlantic Treaty's Article V: Is Article V Still a Deterrent, 26 Suffolk Transnat'l L. Rev. 51, 52 (2002). [10] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11 (2010). [11] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11 (2010). [12] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 13 (2010). [13] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 13 (2010). [14] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11 (2010). [15] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 13 (2010). [16] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 13 (2010). [17] T. Michael Ruddy, A Companion to American Military History 593 (James C. Bradford ed. 2010) [18] T. Michael Ruddy, A Companion to American Military History 593 (James C. Bradford ed. 2010) [19] T. Michael Ruddy, A Companion to American Military History 593 (James C. Bradford ed. 2010) [20] T. Michael Ruddy, A Companion to American Military History 594 (James C. Bradford ed. 2010) [21] T. Michael Ruddy, A Companion to American Military History 594 (James C. Bradford ed. 2010) [22] See T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010) [23] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010) [24] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010) [25] See generally Daniel A. Crane, All I Really Need to Know About Antitrust I Learned in 1912, 100 Iowa L. Rev. 2025, 2027 n.6 (2015). [26] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010). [27] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010). [28] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010). [29] T. Michael Ruddy, A Companion to American Military History 595 (James C. Bradford ed. 2010). [30] T. Michael Ruddy, A Companion to American Military History 596 (James C. Bradford ed. 2010). [31] T. Michael Ruddy, A Companion to American Military History 596 (James C. Bradford ed. 2010). 32 T. Michael Ruddy, A Companion to American Military History 596 (James C. Bradford ed. 2010). 33 T. Michael Ruddy, A Companion to American Military History 596 (James C. Bradford ed. 2010). [34] T. Michael Ruddy, A Companion to American Military History 596 (James C. Bradford ed. 2010). [35] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 359-62 (1998). [36] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 360 (1998). [37] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 361 (1998). [38] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 360 (1998). [39] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 364 (1998). [40] Christopher Riches & Jan Palmowski, A Dictionary of Contemporary World History, SEATO (2021), https://www.oxfordreference.com/view/10.1093/acref/9780191890949.001.0001/acref-9780191890949-e-2107. [41] George K. Walker, Anticipatory Collective Self-Defense in the Charter Era: What the Treaties Said, 31 Cornell Int'l L.J. 321, 361-63 (1998). [42] LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, (2008). [43] LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, n. 280 (2008). [44] LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, 124 (2008). [45] LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, 124 (2008). [46] See LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, n. 280 (2008). [47] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [48] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [49] Gaaret Marinelli, Refocusing the United States' Perspective of China and the South China Sea, 22 San Diego Int'l L.J. 115, 126 (2020). [50] Gaaret Marinelli, Refocusing the United States' Perspective of China and the South China Sea, 22 San Diego Int'l L.J. 115, 126 (2020). [51] Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [52] Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [53] Routledge Handbook of Naval Strategy & Security 83-84 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [54] F. Shannon Sweeney, Rocks v. Islands: Natural Tensions Over Artificial Features in the South China Sea, 31 Temp. Int'l & Comp. L.J. 599, 604 (2017). [55] F. Shannon Sweeney, Rocks v. Islands: Natural Tensions Over Artificial Features in the South China Sea, 31 Temp. Int'l & Comp. L.J. 599, 604 (2017). [56] Irina Slav, The Oil Industry’s Biggest Weakness Is Its Reliance On China, Oil Price, Aug. 20, 2020, https://oilprice.com/Energy/Crude-Oil/The-Oil-Industrys-Biggest-Weakness-Is-Its-Reliance-On-China.html. [57] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 921 (2018). [58] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 921 (2018). [59] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 921 (2018). [60] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 923 (2018). [61] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 923 (2018). [62] Asaf Lubin, The Dragon King's Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum, 57 Washburn L.J. 17, 47-48 (2018). [63] Asaf Lubin, The Dragon King's Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum, 57 Washburn L.J. 17, 47 (2018). [64] Asaf Lubin, The Dragon King's Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum, 57 Washburn L.J. 17, 48 (2018). [65] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 924 (2018). [66] Adam W. Kohl, China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea, 122 Dick. L. Rev. 917, 924 (2018). [67] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 63 (2021). [68] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 63 (2021). [69] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 63 (2021). [70] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 64 (2021). [71] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [72] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [73] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [74] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [75] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021); 10 USCA § 161 (responding to China as a maritime challenger in the broader Indo-Pacific region—and heightened tensions--the US renamed its longstanding Pacific Command as US Indo-Pacific Command in May, 2018); Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy) (since the 19th century writings of Alfred Thayer Mahan, US geopolitical thinking has focused on control of the ocean to guarantee trade and access throughout the world.[75] However, the relative significance of American naval power has waxed and waned throughout the nation's history. In contemporary history, the US Navy has enjoyed unique worldwide reach, with its greatest capabilities in the 1940s, 1950s, 1960s, and 1980s). [76] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [77] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [78] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [79] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [80] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [81] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [82] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [83] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [84] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [85] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [86] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [87] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [88] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). [89] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). [90] Christopher Linebaugh, Joint Development in a Semi-Enclosed Sea: China's Duty to Cooperate in Developing the Natural Resources of the South China Sea, 52 Colum. J. Transnat'l L. 542, 546 (2014). [91] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 222 (2019). The modern states of India and Pakistan formed out of the partition of British India in 1947. Millions of people fled from massacres as the partition took effect, dividing the Indian sub-continent along religious lines between predominantly Muslim Pakistan and predominantly Hindu Indians.[91] In 1947, 1965, and 1971, India and Pakistan fought three major wars. After 1971, both countries developed nuclear weapons and acceded to the Simla Agreement, creating a "Line of Control" dividing administration of the disputed Jammu and Kashmir region. The more limited Kargil War, centered on Kashmir in 1999 raised the specter of a regional nuclear war. [92] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 227 (2019). [93] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 228-230 (2019). [94] Michael Safi & Mehreen Zahra-Malik, Kashmir's fog of war: how conflicting accounts benefit both sides, The Guardian, March 5, 2019; Top rebel commander killed by Indian forces in Kashmir, The Guardian, May 6, 2020. [95] Where Does the China-India Border Dispute Stand?, The Diplomat, Sept. 8, 2021, https://thediplomat.com/2021/09/where-does-the-china-india-border-dispute-stand/. [96] Talia Lewis, India's Citizenship Amendment Act Violates International Human Rights, 28 U. Miami Int'l & Comp. L. Rev. 463, 470 (2021). Under the leadership of Narendra Modi and the Hindu nationalist BJP political party, India has taken public policy steps seen by some as discriminatory against its Muslim citizens. India's Supreme Court authorized the construction of a Hindu temple on the site of a mosque destroyed by Hindu rioters in 1992, eliminated protections for Kashmir's Muslim majority culture, and passed a 2019 amendment to its Citizenship Act offering amnesty to non-Muslim illegal immigrants from Afghanistan, Pakistan, and Bangladesh. [97] Sandeep Avinash Prasanna, Red Belt, Green Hunt: India's Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict, 63 UCLA L. Rev. 486, 514-15 (2016). Although muted in comparison with confrontations with its neighbors, India also contends with examples of domestic insurgency. Beginning in the 1960s, poor peasants and members of low caste drew inspiration from the writing of Mao Zedong, launching the Naxalite Maoist insurgency. The movement continues today and has intensified its militarization, carried out thousands of attacks, and has an estimated 23,000 fighters. [98] See Office of the Secretary of Defense, Military and Security Developments Involving the People’s Republic of China, 9 (2020), https://media.defense.gov/2020/Sep/01/2002488689/-1/-1/1/2020-DOD-CHINA-MILITARY-POWER-REPORT-FINAL.PDF. [99] See Office of the Secretary of Defense, Military and Security Developments Involving the People’s Republic of China, 9 (2020), https://media.defense.gov/2020/Sep/01/2002488689/-1/-1/1/2020-DOD-CHINA-MILITARY-POWER-REPORT-FINAL.PDF. [100] Office of the Secretary of Defense, Military and Security Developments Involving the People’s Republic of China, viii, 48 (2020), https://media.defense.gov/2020/Sep/01/2002488689/-1/-1/1/2020-DOD-CHINA-MILITARY-POWER-REPORT-FINAL.PDF. [101] See 34 UNTS 243, art. 14. [102] See 34 UNTS 243, art. 14. [103] Benjamin Weitz, Updating the Law of Targeting for an Era of Cyberwarfare, 40 U. Pa. J. Int'l L. 735, 736 (2019). [104] See, e.g. Benjamin Weitz, Updating the Law of Targeting for an Era of Cyberwarfare, 40 U. Pa. J. Int'l L. 735, 736 (2019). [105] Estonia to open the world’s first data embassy in Luxembourg, E-Estonia, Jun. 2017. [106] John Ruwitch & Michele Kelemen, Biden And 'Quad' Leaders Launch Vaccine Push, Deepen Coordination Against China, NPR, Mar. 12, 2021, https://www.npr.org/2021/03/12/976305089/biden-and-quad-leaders-launch-vaccine-push-deepen-coordination-against-china. [107] Jorge Benitez, U.S. NATO Policy in the Age of Trump: Controversy and Consistency, 43-WTR Fletcher F. World Aff. 179, 184 (2019). [108] Jorge Benitez, U.S. NATO Policy in the Age of Trump: Controversy and Consistency, 43-WTR Fletcher F. World Aff. 179, 184 (2019). [109] AP, NATO chief rules out system for expelling members, The San Diego Union Tribune, (Nov. 30, 2021), https://www.sandiegouniontribune.com/news/nation-world/story/2021-11-30/nato-chief-rules-out-system-for-expelling-members. [110] Aaron Seals, Dismantling the WTO: The United States' Battle Against World Trade, 28 U. Miami Bus. L. Rev. 199, 202 (2019). [111] Michael Doyle, Cold War I, Post-Cold War, and Cold War II: The Overarching Contexts of Peacekeeping, Human Rights, and NATO, 113 Am. Soc'y Int'l L. Proc. 31, 32 (2019). [112] Michael Doyle, Cold War I, Post-Cold War, and Cold War II: The Overarching Contexts of Peacekeeping, Human Rights, and NATO, 113 Am. Soc'y Int'l L. Proc. 31, 33 (2019). [113] Michael Doyle, Cold War I, Post-Cold War, and Cold War II: The Overarching Contexts of Peacekeeping, Human Rights, and NATO, 113 Am. Soc'y Int'l L. Proc. 31, 34 (2019). [114] Michael Doyle, Cold War I, Post-Cold War, and Cold War II: The Overarching Contexts of Peacekeeping, Human Rights, and NATO, 113 Am. Soc'y Int'l L. Proc. 31, 34 (2019). [115] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [116] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [117] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [118] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [119] Yeltsin says he wants Russia to join NATO, Baltimore Sun, Dec. 21, 1991, ProQuest, Doc. No. 406721495. [120] Astrid Wendlandt, Pacifying Russia: International and NATO Expansion, 22-FALL Fletcher F. World Aff. 131, 132 (1998). [121] Astrid Wendlandt, Pacifying Russia: International and NATO Expansion, 22-FALL Fletcher F. World Aff. 131, 137 (1998). [122] Astrid Wendlandt, Pacifying Russia: International and NATO Expansion, 22-FALL Fletcher F. World Aff. 131, 137 (1998). [123] Could Russia join NATO?, The Economist, Jul. 11, 2011, ProQuest, Doc. No. 849635085. [124] Could Russia join NATO?, The Economist, Jul. 11, 2011, ProQuest, Doc. No. 849635085. [125] Freedom House, Freedom in the World 2021: Russia (2021), https://freedomhouse.org/country/russia/freedom-world/2021; Freedom House, Freedom in the World 2021: Turkey (2021), https://freedomhouse.org/country/turkey/freedom-world/2021. [126] Vibhanshu Shekhar, Indonesia's Foreign Policy and Grand Strategy in the 21st Century: The Rise of an Indo-Pacific Power 201 (2018). [127] Vibhanshu Shekhar, Indonesia's Foreign Policy and Grand Strategy in the 21st Century: The Rise of an Indo-Pacific Power 201 (2018). [128] Vibhanshu Shekhar, Indonesia's Foreign Policy and Grand Strategy in the 21st Century: The Rise of an Indo-Pacific Power 209 (2018). [129] ibhanshu Shekhar, Indonesia's Foreign Policy and Grand Strategy in the 21st Century: The Rise of an Indo-Pacific Power 205 (2018). [130] See generally Rachel Denae Thrashera & Kevin P. Gallagher, 21st Century Trade Agreements: Implications for Development Sovereignty, 38 Denv. J. Int'l L. & Pol'y 313, 328 (2010). [131] Rachel Denae Thrashera & Kevin P. Gallagher, 21st Century Trade Agreements: Implications for Development Sovereignty, 38 Denv. J. Int'l L. & Pol'y 313, 328 (2010). [132] Office of the Executive Director for International Cooperation, Defense Trade Cooperation Treaties (2021); Greg Jennett, Australia joins US, India and Japan in 'unprecedented' deal for coronavirus vaccines after historic Quad meeting, ABC News, Mar. 12, 2021, https://www.abc.net.au/news/2021-03-13/quad-australia-us-india-japan-in-massive-covid-vaccine-deal/13245198. [133] Eric Chung, The Judicial Enforceability and Legal Effects of Treaty Reservations, Understandings, and Declarations, 126 Yale L.J. 170, 183 (2016); United Nations Human Rights, Ratification of 18 International Human Rights Treaties (2014), https://indicators.ohchr.org/ (indicating that the US, India, and Malaysia have acceded to between five and nine different treaties with higher levels of ratification among other potential members). [134] Col. Ryan B. Dowdy, Human Rights Convergence and Future Detention Operations in the Indo-Pacific, 227 Mil. L. Rev. 321, 323 (2019). [135] Col. Ryan B. Dowdy, Human Rights Convergence and Future Detention Operations in the Indo-Pacific, 227 Mil. L. Rev. 321, 323 (2019). [136] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [137] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [138] See Major Ryan M. Fisher, Defending Taiwan: Collective Self-Defense of a Contested State, 32 Fla. J. Int'l L. 101, 110-11 (2020). [139] Adam Hayes, Association of Southeast Asian Nations (ASEAN), Investopedia, Sept. 8, 2019, https://www.investopedia.com/terms/a/asean.asp. [140] Felix X. Chang, ASEAN's Search for a Third Way: Southeast Asia's Relations with China and the United States, Foreign Policy Research Institute, Jun. 17, 2021, https://www.fpri.org/article/2021/06/aseans-search-for-a-third-way-southeast-asias-relations-with-china-and-the-united-states/. [141] Felix X. Chang, ASEAN's Search for a Third Way: Southeast Asia's Relations with China and the United States, Foreign Policy Research Institute, Jun. 17, 2021, https://www.fpri.org/article/2021/06/aseans-search-for-a-third-way-southeast-asias-relations-with-china-and-the-united-states/. [142] Felix X. Chang, ASEAN's Search for a Third Way: Southeast Asia's Relations with China and the United States, Foreign Policy Research Institute, Jun. 17, 2021, https://www.fpri.org/article/2021/06/aseans-search-for-a-third-way-southeast-asias-relations-with-china-and-the-united-states/. [143] Felix X. Chang, ASEAN's Search for a Third Way: Southeast Asia's Relations with China and the United States, Foreign Policy Research Institute, Jun. 17, 2021, https://www.fpri.org/article/2021/06/aseans-search-for-a-third-way-southeast-asias-relations-with-china-and-the-united-states/. [144] Rachely Myrick, Democrats and Republicans seem to agree about one foreign policy point: Getting tough on China, Washington Post, Jun. 4, 2021, https://www.washingtonpost.com/politics/2021/06/04/democrats-republicans-seem-agree-about-one-foreign-policy-point-getting-tough-china/. [145] Kamala Harris accuses Beijing of ‘coercion’ and ‘intimidation’ in South China Sea, The Guardian, Aug. 24, 2021. [146] Aukus: UK, US and Australia launch pact to counter China, BBC News, Sept. 16, 2021. [147] Aukus: UK, US and Australia launch pact to counter China, BBC News, Sept. 16, 2021. [148] Patrick Wintour, France tries to delay EU-Australia trade deal amid Aukus fallout, The Guardian, Sep. 20, 2021, https://www.theguardian.com/world/2021/sep/20/france-seeks-delay-eu-australia-trade-deal-amid-aukus-fallout. [149] José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523, 524 (2021). [150] See José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523, 524 (2021). [151] See Michael R. Sinclair, The Rising Dragon and the Dying Bear: Reflections on the Absence of a Unified America from the World Stage and the Resurgence of State-Based Threats to U.S. National Security, 46 Syracuse J. Int'l. L. & Com. 115, 129-31 (2018). [152] Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. Forum 432, 434-35 (2018); see also Goldwater v. Carter, 444 U.S. 996 (1979). [153] See Kucinich v. Bush, 236 F.Supp.2d 1, 2-3 (D.D.C. 2002) [154] See United States v. Belmont, 301 U.S. 324, 330 (1937); see also Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 28 (2015). [155] See United States v. Belmont, 301 U.S. 324, 330 (1937). [156]See Pierre-Hugues Verdiera & Mila Versteeg, International Law in National Legal Systems: An Empirical Investigation, 109 Am. J. Int'l L. 514, 525 (2015). [157] Bruce Hoffman & Jacob Ware, Leaving Afghanistan Will Make America Less Safe, War on the Rocks, May 5, 2021, https://warontherocks.com/2021/05/leaving-afghanistan-will-make-america-less-safe/; Cole Livieratos, The Subprime Strategy Crisis: Failed Strategic Assessment in Afghanistan, War on the Rocks, Sept. 15, 2021, https://warontherocks.com/2021/09/the-subprime-strategy-crisis-failed-strategic-assessment-in-afghanistan/; Frida Ghitis, We need the real story of why Trump sold out the Kurds, CNN, Oct. 14, 2019, https://edition.cnn.com/2019/10/14/opinions/why-did-trump-abandon-kurds-after-call-with-erdogan-ghitis/index.html.

Media hysteria over the Supreme Court has reached fever pitch, with a chorus of fake news pundits repeating that America now has a “far right” court. This reaction is to be expected.What should be surprising, though, are the number of conservative and populist figures, from pundits to law scholars, who are validating this ridiculous narrative. While it is true that the 2022 Term brought more originalist victories than in years past, the idea that the Court is consistently siding with the political Right is ludicrous. Below are five cases demonstrating how, for all their posturing, leftwing and anti-originalist judicial activists continue to rack up wins in the nation’s highest court. Note that this list does not include what are arguably the most devastating actions of the Roberts Court—denials of certiorari for appeals from egregiously wrong rulings by blatantly partisan lower court judges.[1] It also leaves out rulings from the Court’s emergency, or shadow, docket, where it decides what temporary injunctions to impose or remove while the multi-year legal process plays out (this term, the Court decided to reinstate a hold on Texas’s anti-censorship law, but allowed President Biden to purge unvaccinated doctors and nurses from private hospitals while he stretched out court proceedings).[2] The following list instead covers only final judgments with binding precedents, as these are the ones that will cause the most long-term damage to our laws, our Constitution, and our country. 5. Taylor v. United States Virginia drug dealer Justin Taylor and an accomplice decided to rip off their customer mid-deal and rob him at gunpoint. When the victim refused to comply, Taylor’s accomplice shot him and the duo fled the scene, leaving the man to die (which he did).[3] In order to avoid murder charges, Taylor pled guilty to Hobbs Act robbery. The Hobbs Act provides a sentencing enhancement for one who “uses or carries a firearm . . . . during and in relation to any crime of violence” or “in furtherance of any such crime.”[4] A crime of violence is defined as either a crime which has “as an element the use, attempted use, or threatened use of physical force against the person” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[5] In his guilty plea, Taylor acknowledged he had engaged in a crime of violence.[6] One would think that this would be an easy case. Instead, Neil Gorsuch’s majority opinion upheld a lower court conclusion that, actually, Taylor did not meet the Hobbs Act requirements of committing a “crime of violence.”[7] You see, back in 1990, the Court, while interpreting an unrelated criminal statute, decided to develop a “categorical” approach, where instead of judging the actual facts of a specific offender’s actions for sentencing enhancements, courts would look to the “generic” “elements” that would go with such a crime.[8] For consistency, the Court then decided to apply this categorical requirement to so-called “residual clause[s],” such as the one in the Hobbs Act referring to a crime that “by its nature involves a substantial risk [of] physical force.” A categorical approach makes little sense to a residual clause (“substantial risk” was an inherently case-specific inquiry), so the court then struck down that part of the statute as “unconstitutionally vague.”[9] That left the only part of the Hobbs Act for judging a “crime of violence” to be the part defining a crime that had as “an element the use, attempted use, or threatened use” of physical force.[10] Taylor’s underlying crime was only attempted robbery (the two criminals had abandoned the theft after escalating it to a killing), and it is theoretically possible for someone to attempt robbery without engaging in the use of physical force. Therefore, under the categorical approach, Taylor’s crime was not actually one of violence.[11] If this seems confusing gibberish, that is because it is. As Clarence Thomas describes it in his dissent, the Court’s Hobbs Act interpretation has been a “30-year excursion into the absurd.”[12] Taylor is a prime example of judges utterly obfuscating the meaning of plain text statutes by piling bad precedent on top of bad precedent because they would rather be consistent with their earlier stupid rulings than acknowledge their own error (it also did not help that federal prosecutors in Taylor refused to make arguments that might have prevented more bad precedent from being created).[13] The Taylor ruling comes as the nation grapples with an escalating epidemic of gun violence.[14] Judges are largely protected from the bloodshed, but their refusal to enforce gun laws like the Hobbs Act have very real consequences. Societies cannot disregard these problems forever. 4. Ramirez v. Collier During a 2004 crime spree defined by staggering brutality, John Ramirez stabbed Corpus Christi convenience store clerk Pablo Castro twenty-nine times in order to rob him (Castro had only $1.25).[15] Ramirez left Castro by a dumpster, where the hardworking father of nine died choking on his own blood.[16] What followed has been an unending quest by Ramirez to cheat justice. He evaded police in a car chase.[17] He fled the country.[18] He deliberately sabotaged his own sentencing hearing so he could then appeal his death sentence on the grounds of ineffective counsel.[19] He gave lie-filled TV interviews wherein he tried to shift the blame to Castro.[20] When he finally got an execution date, he requested an extension so he could file a separate habeas request, then waited an additional year to actually submit the petition.[21] He submitted a new suit asking for the punishment to be postponed until a pastor was permitted in the chamber, insisting the advisor “need not touch [him] at any time in the injection room.”[22] When Texas acquiesced to his demand, he changed it up, saying his Baptist faith now compelled him to have his pastor “lay hands on him” during the execution.[23] By the time he got to SCOTUS this year, Ramirez was insisting this accommodation was not sufficient, either—the pastor needed to be simultaneously singing and touching him at the exact moment he passed.[24] Several of Pablo Castro’s children filed a brief pleading for the court to finally do its job and allow the execution to proceed. One wrote how the endless “loopholes” Ramirez exploited had left him with a “‘lack of closure for many years, ever since [he] was merely a child.’”[25] Another detailed the “pain and suffering” from constant establishment media celebration each time Ramirez got courts to grant another delay.”[26] A third begged that the Court allow “the healing process [to] continue without being reopened every couple of years to entertain Ramirez’s appeals.’”[27] The justices sided with Ramirez anyway. Under RLUIPA (the Religious Land Use and Institutionalized Persons Act), the government allows exemptions from certain generally applicable laws for sincerely held religious beliefs so long as it would not impose a “substantial burden.”[28] According to Chief Justice John Roberts’ majority opinion, which disregarded the mountains of evidence that Ramirez’s claims were insincere, eighteen years of delayed justice (and the incredible pain it put the Castro family through) was not a substantial enough burden to meet the RLUIPA standard.[29] Rubbing salt on the wounds, Stephen Breyer wrote separately this term to argue that all capital sentences should be lifted because it was unfair to the murderers for them to have to endure decades of delays.[30] Just weeks before the Ramirez decision, the Court had issued a shadow docket ruling against the plaintiffs in Dr. A v. Hochul, who challenged a governor’s arbitrary decision to explicitly prohibit “religious beliefs” as a justification for exemptions to vaccine mandate imposed on the private sector.[31] The Court’s ruling even allowed the revocation of already granted exemptions (the suit had been brought under Title VII, which requires employers to offer reasonable accommodations to individuals with sincerely held religious beliefs).[32] A few months later, the justices ruled against the Dr. A plaintiffs for a second and final time, permanently enshrining the vax order without even giving the objectors a chance to make their religious freedom argument at their Court.[33] The Fourteenth Amendment insists on equal protection of the law. Instead, John Roberts applies it selectively, always with an eye to the preferences and prejudices of the media establishment. 3. Denezpi v. United States One of history’s largely forgotten villains was President Chester Arthur, the creator of today’s administrative, or deep, state. Arthur, who served less than a single term in the 1880s, was obsessed with annihilating the Constitution’s separation of powers and creating semi-independent, largely unaccountable federal bureaucracies that acted outside the traditional branches of government. As part of this mission, his Secretary of Interior, a Colorado railroad baron named Henry Teller, issued an “administrative decree” demanding to create a Court of Indian Offenses.[34] As Teller described it, the Court was a necessity so Indians would “desist from the savage and barbarous practices . . . calculated to continue them in savagery” (these forbidden practices included “heathenish dances” and “conjurers’ arts”).[35] Though the tribunals were staffed by Indians, “tribal members often regarded these courts as ‘foreign’ and ‘hated’ institutions” (imagine that!).[36] Later on, Congress permitted tribes to opt-out of the Court of Indian Offenses by recreating their own tribal courts; many larger nations chose to do so. The Indian Offenses tribunals—now called Code of Federal Regulations, or C.F.R., courts—ceded more lawmaking authority to the tribes, and (as intended) became more disconnected from the federal government that created them. Nevertheless, the feds (though not any individual in particular) continued to have the ultimate say on who sat on the tribunals.[37] In 2017, Navajo Nation member Merle Denezpi accepted a plea deal in C.F.R. court, allowing him to be released with time served and no sex crime conviction after committing a brutal rape while visiting the Ute Mountain Ute Reservation.[38] Frustrated with this lenient sentence, ordinary federal prosecutors brought new charges for the same offense: Denezpi was convicted, labeled a sex offender, and given thirty years in prison.[39] Amy Coney Barrett’s majority opinion did concede that the C.F.R. courts may have been of “the same sovereign” as the ordinary federal courts.[40] However, the Court nevertheless upheld Denezpi’s conviction, arguing that the C.F.R. rules he was convicted under were a creation of Indian law and thus entirely separate from federal law (under our federalist Constitutional structure, territory and state statutes are independent of federal laws and their enforcement raises no double jeopardy concerns).[41] This is of course absurd—the C.F.R. rules were created by federal executive order that not only disregarded but disparaged Indian sovereignty, and the institution is still overseen by federal bureaucrats. The Denezpi ruling will stretch far beyond the bounds of the technical, Indian law question it purports to answer. By allowing C.F.R. courts, SCOTUS already failed in its duty to respect separation of powers, creating rogue bureaucracies, like the one in the Ute Mountain Reserve which’s lack of accountability to both the US president and the Indian nations led it to release a violent rapist with effectively no punishment. Now, SCOTUS has permitted the inevitable result of this violence on the Constitution—elimination of longstanding civil liberties as another of the government’s tendrils tries to compensate for its sister agency’s follies. The Court should not pretend that deep state agencies will not leap at this new grant of power. 2. City of Austin v. Reagan National Advertising of Austin Apologists for the current Supreme Court’s refusal to engage in originalist or liberty-minded jurisprudence generally argue one of three things: 1) you shouldn’t blame the Roberts Court because it needs to respect precedent; 2) the Court’s bad rulings are mostly of statutes, and those can just be fixed by the Legislature; or 3) an originalist ruling would reak too much havoc and destabilize the Court’s legitimacy. Reagan National demonstrates how none of these explanations are accurate: Instead, the Court struck down an uncontroversial lower court ruling on constitutional law that faithfully applied SCOTUS precedent from just five years ago. In 2015’s Reed v. Town of Gilbert, the Court rightly concluded that municipal sign ordinances with “content-based restrictions” generally violated the First Amendment’s guarantee of freedom of speech.[42] In 2017, Austin—under Mayor Steve Adler, the man infamous for demanding his subjects stay-at-home via video feed from a bougie Cabo resort—refused to give permits for Reagan National Advertising to digitize some of its billboards.[43] The city indicated it would not allow sign owners to “change the method or technology used to convey a message” if that message would “advertis[e] a business, person, activity, goods, products, or services not located on the site where the sign is installed, or. . . direc[t] persons to any location not on that site” (otherwise, digitization was okay).[44] Faithfully applying Reed (and the Constitution), the Fifth Circuit ruled Austin’s actions unconstitutional.[45] Sonia “Why is a Human Being Not Like a Machine?” Sotomayor—selected by Roberts to write the majority opinion—reversed the Fifth Circuit, proclaiming that the restriction was in fact “content neutral” as it merely relied on “location-based lines.”[46] In his dissent, Thomas underlined the impossibility of this assertion: Much like in Reed, that an Austin official applying the sign code must know where the sign is does not negate the fact that he also must know what the sign says. Take, for instance, a sign outside a Catholic bookstore. If the sign says, “Visit the Holy Land,” it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is “Holy Land Books”). But if the sign instead says, “Buy More Books,” it is likely a permissible on-premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, “Go to Confession.” After examining the sign's message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances “requires [Austin] officials to determine whether a sign” conveys a particular message, the sign code is content based under Reed.[47] Reagan National is just another example of the Roberts Court’s opening the door to censorship by rubber-stamping seemingly (but not actually) neutral categorical distinctions: political speech restrictions that don’t apply to establishment media, covid regulations that only apply to churches, etc. Depressingly, though, this Constitutional atrocity was not enough for the radical Left. In his concurrence, Stephen Breyer lamented that the Court did not take the opportunity to explicitly overrule Reed, hold that “[r]egulatory programs almost always require content discrimination,” and grant a presumption of constitutionality to all content-based censorship so long as it was in the name of regulating commercial speech.[48] Perhaps someday Roberts and Co. will realize that no matter how much they capitulate, they will never be able to find common ground with the left-wing extremists recent Democrat presidents have infected the judiciary with. 1. Biden v. Texas On President Joe Biden’s first day in office, his administration issued a two-sentence memo saying that it would end the Remain-in-Mexico program.[49] Remain-in-Mexico was a system painstakingly created by President Donald Trump and DHS Secretary Kirsten Nielsen to stop the migrant invasion the previous administration’s pro-trafficking policies like DACA (Deferred Action for Childhood Arrivals) had unleashed. Remain-in-Mexico clarified that when detention facilities were full, most southern border aliens could not enter the country until their immigration processes (generally bogus asylum requests) were complete.[50] When Biden’s abandonment of Remain-in-Mexico faced a slew of lawsuits, DHS Secretary Alejandro Mayorkas issued a new memo clarifying the reasons for the new policy.[51] When that memo faced skepticism from the courts, Mayorakas issued a slightly-different second memo mid-litigation.[52] In his tortured and convoluted decision, Roberts conceded that perhaps Mayorakas’s procedure was not consistent with the law, and that the Biden administration had indeed switched their posture three separate times. Nevertheless, Remain-in-Mexico could be immediately dismantled: any critics of Biden’s open border policy needed to start over in courts, and SCOTUS might hear them at another time…if they felt like it.[53] What makes Roberts’ Biden v. Texas ruling so astounding is how blatantly it contradicts his own decision two years earlier regarding the Trump Administration’s DACA recission. In that case, DHS v. Regents of the University of California, Trump’s acting-DHS secretary conceded to state suits against DACA, acknowledging the illegality of Obama’s signature executive order that granted 1.5 million illegal aliens amnesty and access to government benefits.[54] A few months later, Nielsen issued a more lengthy memo that further reiterated the reasons for ending DACA, detailing how the Trump Administration’s decision was both required by law and necessary as a matter of policy.[55] Roberts conceded that yes, the Trump Administration did have the authority to end DACA; and yes, the DACA program may have always been illegal; and yes, Obama may have enacted it in flagrant disregard for all administrative procedures; and yes, the Nielsen memo was probably a thorough justification compliant with all procedural requirements.[56] However, since Trump had previously rescinded DACA prior to Nielsen’s confirmation, and that original memo (which mirrored Obama’s decree from years before) had not been as detailed, Roberts held that all litigation regarding DACA needed to be started from scratch, with the over one-and-a-half million aliens DACA covered getting an indefinite reprieve to spend enjoying their handouts.[57] Roberts’ total reversal between DHS and Biden exemplifies the ugly truth that even if American patriots manage to overcome fake news, voter fraud, and outright persecution to elect a president for them, that leader will not receive the same equal treatment under the law that is given to the choice of more establishment-inclined voters. If the Supreme Court follows down this path, elections will soon become mere ceremony—outcomes of a president’s policy rely on the courts’ approval, and the so-called justices have already picked the winning side. [1] See, e.g.,Dr. A. v. Hochul, 213 L. Ed. 2d 1126 (June 30, 2022), denial of cert.; VDare Found. v. City of Colorado Springs, 212 L. Ed. 2d 216 (Feb. 28, 2022), denial of cert.; McCarthy v. Pelosi, 142 S. Ct. 897 (Jan. 24, 2022), denial of cert. [2] SeeNetchoice v. Paxton, 142 S. Ct. 1715, 1715–16 (May 31, 2022), stay of vacated injunction granted; Biden v. Missouri, 142 S. Ct. 647, 650 (Jan. 13, 2022), stay denied. [3] United States v. Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [4] Id. [5] Id. [6] Id. [7] Id. [8] Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [9] Id. [10] Id. [11] Taylor, 596 U.S. _ (2022). [12] Taylor, 596 U.S. _ (2022) (Thomas, J. dissenting). [13] SeeTaylor, 596 U.S. _ (2022) (Thomas, J. dissenting); see also Taylor, 596 U.S. _ (2022) (Alito, J. dissenting). [14] Holmes Lybrand, The spike in gun violence continues, with 2021 on pace to be the worst year in decades, CNN (Sep. 19, 2021), https://www.cnn.com/2021/09/19/politics/gun-violence-spike-2021-explainer/index.html (“2021 is on pace to be the worst year for gun violence in decades, surpassing even the high levels last year”). [15] Ramirez v. Collier, 142 S. Ct. 1264, 1289–90 (2022) (Thomas, J. dissenting); Ramirez v. State, No. AP-76,100, 2011 WL 1196886, at *1 (Tex. Crim. App. 2011). [16] Ramirez, 142 S. Ct. 1289 (Thomas, J. dissenting); Ramirez, No. AP-76,100, 2011 WL 1196886, at *1. [17] Ramirez, 142 S. Ct. 1290 (Thomas, J. dissenting). [18] Id. [19] Ramirez, 142 S. Ct. 1293–94 (Thomas, J. dissenting). [20] See Former US Marine on Death Row for Murder in Cold Blood, BBC Three, YᴏᴜTᴜʙᴇ (Mar. 18, 2018), https://www.youtube.com/watch?v=THfVYstlL2Q&t=1s. [21] Id. at 1294. [22] Ramirez v. Collier, 142 S. Ct. 1264, 1278 (2022). [23] Ramirez, 142 S. Ct. at 1290–91 (Thomas, J. dissenting). [24] Ramirez, 142 S. Ct. at 1276. [25] Ramirez, 142 S. Ct. at 12905 (Thomas, J. dissenting). [26] Id. [27] Id. [28] Ramirez, 142 S. Ct. at 1277. [29] Id. at 1278 (pretending there is “ample evidence that Ramirez's beliefs are sincere”). [30] Smith v. Shinn, 142 S. Ct. 1714, 1714–15 (May 23, 2022) (Breyer, J. respecting denial of cert.) [31] SeeDr. A v. Hochul, 142 S. Ct. 552, 552 (Dec. 13, 2021) (Gorsuch, J. dissenting from denial of injunctive relief). [32] 42 U.S.C.A. § 2000e et seq. [33] Dr. A. v. Hochul, 142 S. Ct. 2569, 2569 (June 30, 2022), denial of cert. [34] Denezpi v. United States, 142 S.Ct. 1838, 1850 (2022) (Gorsuch, J. dissenting); see also “Henry Teller,” Cᴏʟᴏʀᴀᴅᴏ Eɴᴄʏᴄʟᴏᴘᴇᴅɪᴀ (2022), https://coloradoencyclopedia.org/article/henry-teller. [35] Denezpi, 142 S. Ct. at 1850 (Gorsuch, J. dissenting). [36] Id. [37] See Denezpi, 142 S. Ct. at 1843; see also Denezpi, 142 S. Ct. at 1850 (Gorsuch, J. dissenting). [38] See Denezpi, 142 S. Ct. at 1844; United States v. Denezpi, 979 F.3d 777, 780 (10th Cir. 2020), aff'd, 142 S. Ct. 1838 (2022). [39] Denezpi, 142 S. Ct. at 1851 (Gorsuch, J. dissenting). [40] SeeDenezpi, 142 S. Ct. at 1843. [41] SeeDenezpi, 142 S. Ct. at 1843; United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 142, 67 L. Ed. 314 (1922) (“We have here two sovereignties, deribing [sic] power from different sources, capable of dealing with the same subjectmatter [sic] within the same territory.”). [42] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 171 (2015). [43] SeeCity of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1470 (2022); Tony Plohetski, As mayor urged Austin to ‘stay home,’ he was vacationing in Mexico following daughter’s wedding, KVUE ABC (Dec. 2, 2020), https://www.kvue.com/article/news/investigations/defenders/austin-mayor-steve-adler-coronavirus-covid-19-daughter-wedding-vacation/269-d76bf9b8-54bb-4736-9b00-80fdf2953145/. [44] Reagan Nat’l, 142 S. Ct. at 1470; City of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1481 (Thomas, J. dissenting). [45] Reagan Nat’l, 142 S. Ct. at 1470. [46] Reagan Nat’l, 142 S. Ct. at 1471; Tim Meads, Justice Sotomayor Slammed For Comparing Humans ‘Spewing Bloodborne Viruses’ To Dangerous ‘Machines,’ Dᴀɪʟʏ Wɪʀᴇ (Jan. 7, 2022), https://www.dailywire.com/news/justice-sotomayor-slammed-for-comparing-humans-spewing-bloodborne-viruses-to-dangerous-machines (“Why is a human being not like a machine if it’s spewing bloodborne viruses?”). [47] Reagan Nat’l, 142 S. Ct. at 1484 (Thomas, J. dissenting). [48] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 177 (Breyer, J. concurring); see City of Austin, Tex. v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1476, 1477 (2022) (Breyer, J. concurring). [49] Biden v. Texas, 142 S. Ct. 2528, 2536 (2022). [50] SeeBiden, 142 S. Ct. at 2535; Dep't of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1902 (2020). [51] Biden, 142 S. Ct. at 2536. [52] Id. at 2537. [53] See id. at 2544–48. [54] DHS, 140 S. Ct. at 1903. [55] Id. at 1904–07. [56] See id. at 1913–16. [57] See id. at 1913–16.

One hundred seventy-five: the number of living indigenous languages in the U.S.[1] The number marks a dramatic decline from the estimated 300 tongues spoken at the time that Columbus arrived in the Caribbean in 1492.[2] Indigenous languages are in a state of crisis. After centuries long setbacks due to disease-related declines, genocide, forced population transfer, and aggressive assimilation in federally sponsored school systems, indigenous languages face continued lack of support and encroachment by mass media.[3] If current trends continue, only twenty indigenous languages will still be viable in 2050.[4] Supporting endangered language documentation and revitalization is a critical issue of our time, and an essential ingredient in building strong indigenous communities both on reservations and within the U.S. more broadly. Therefore, Congress, states, and indigenous groups have a short-lived opportunity to act, and cement indigenous languages more firmly in the law. Since 1968, Native Americans have slowly regained lost sovereignty, reasserting self-determination. Similar measures have improved the lot of Alaska Natives and Hawaiians. Improved status for indigenous languages serves the values of federalism, honoring long-standing cultures that are deeply rooted on this continent (and in the Pacific). The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. New Zealand, Scandinavia, and Taiwan provide models which could be emulated to achieve these goals. Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggest a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to indigenous sign languages and extinct languages. In coordination with the Federal Communications Commission, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages. It may also wish to consider clarifying Indian civil rights law to uphold tribal sovereignty in the area of linguistic rights, while ensuring that indigenous languages are not turned into a cudgel against tribal republicanism. Congress should adopt a new piece of legislation, referred to in this paper as the Sequoyah Act, to sponsor indigenous language revitalization, incorporating and expanding on legislation passed to-date. States could adopt similar legislation, or grant official language status to indigenous languages at the state level, thereby supporting and affirming indigenous cultures within the U.S. II. LANGUAGE AND LINGUISTIC RIGHTS IN THE UNITED STATES It is no exaggeration to describe the US as one of the world's most ethnically pluralistic nation, with over sixty million of its 330 million residents speaking a first language other than English.[5] The first humans are believed to have arrived in North America 15,000 years ago from Siberia, soon diversifying into numerous linguistic and cultural groups: today’s Native American groups.[6] In 2020, the Census Bureau reported that approximately 9.7 million U.S. citizens are Native American or Alaska Native, the descendants of around two percent of the original population that survived war and disease during the European settlement of North America.[7] These groups engaged in long-distance trade and agriculture, built large settlements, and produced ceramics over the course of thousands of years.[8] However, the arrival of European settlers in the 1600s initiated a long period of cultural decline driven in large part by Old World infectious diseases such as smallpox and measles, which decimated indigenous communities. Britain, France, and Spain as the most significant European powers in North America sought alliances with powerful Native American tribes and confederations. In British North America, the King imposed a ban on settlement west of the Appalachians, adding to a list of grievances seized upon by the American colonists in the American Revolution.[9] The early US grew rapidly westward through a combination of land purchases and conquest, soon coming into conflict with indigenous peoples. Mass deportations of Native Americans typified the early decades of the republic, followed by a period of internecine conflict and massacres on the frontier. As a condition of the Mexican Cession, the US agreed in the Treaty of Guadeloupe-Hidalgo to eliminate the Comanche threat posed to northern Mexico.[10] Almost from the start, values of federalism, individualism, personal liberty, and freedom of association have characterized the US. But the treatment of Native Americans—together with the treatment of slaves and their descendants—were two areas where this noble outlook saw little implementation. The position of Native Americans has evolved considerably in American public life. Fortunately, notions of "Indian givers"[11] and the portrayals of mid-century Westerns has given way to a more complex picture, that largely portrays Native Americans as the victims of white settler colonialism. Nonetheless, contemporary attitudes still tend to see Native Americans as peripheral to American society—and official federal and state law does not take steps which are forceful enough to protect indigenous languages from extinction. A.The Decline of Indigenous Languages: Attempts at Assimilation The current total of 175 living indigenous languages is a substantial decrease from the estimated 300 languages spoken at the time of European contact.[12] Much of what is known about extinct Native American languages, or older versions of living languages is from European-language sources, including languages spoken more widely in the colonial period such as Swedish, Dutch, or Danish.[13] Although some languages in what is now the U.S., like Micmac, had pre-existing hieroglyphic writing systems, many indigenous writing systems were developed after contact in conjunction with missionaries.[14] This is true of Sauk, Fox, Winnebago, Kickapoo, Micmac, Cherokee, and other languages.[15] Trade and travel were part and parcel of life for many tribes, and to overcome language barriers with other native groups or Europeans, several pidgins, trade jargons, and sign languages developed, most famously Chinook Jargon, Mobilian Jargon, and Plains Sign Language.[16] In other cases, tribes adopted European languages, like the variant of French spoken by the Houma Indians of Louisiana.[17] The American landscape is dotted with indigenous place names and descriptors for North American species.[18] Take for instance, Mississippi, drawn from an Ojibwe compound word for “big river.” Algonquin lends us ubiquitous words like squash, chipmunk, toboggan, tomahawk, and raccoon.[19] But in spite of the ever-present contribution of indigenous languages, the actual state of most of these languages is dire in the 21st century, with many extinct—or on the verge of disappearing—due to over two centuries of population decline, forced population transfer, outright genocide, and assimilation polices. European, and principally Anglo-American settlement of what is now the U.S. is believed to have resulted in the death of ninety-five percent of Native Americans by the end of the 19th century.[20] Native people were steadily extirpated from eastern portions of the continent by both accidental and intentional means, with European diseases playing a large role.[21] Conflict and denigration of native people was widespread but by no means universal. In 1643, Roger Williams, founder of Rhode Island and proponent of religious tolerance published A key into the language of America, a comparatively humanizing attempt to understand the Indians of the Narragansett Bay region.[22] He wrote “For my selfe [sic] I have uprightly laboured to suite my endeavours to my pretences: and of later times (out of desire to attaine [sic] their Language). . . Many solemne [sic] discourses I have had with all sorts of Nations of them, from one end of the Countrey [sic] to another. . .”[23] For Roger Williams, understanding native languages was a means of understanding native cultures as well. Although some tribes groups reached a degree of stability with their European neighbors, native people often came to be viewed as “unassimilable” aliens after the American Revolution.[24] Quakers in Pennsylvania and New Jersey promoted a more tolerant objective of assimilation that gained some popularity with President Washington and President Jefferson.[25] In Johnson v. M’Intosh, in 1823, the Supreme Court famously asserted federal authority over Indian tribes based on the doctrine of discovery.[26] By asserting broad federal authority over Indians, the case paved the way for subsequent forced removal of Indians to reservations.[27] In the South, the so-called “Five Civilized Tribes,” the Cherokee, Creek, Chickasaw, Choctaw, and Seminole tribes engaged in advanced trade and agriculture, held slaves, and used written languages.[28] The Cherokee polymath, Sequoyah, developed a unique syllabary to write the Cherokee language in the 1820s.[29] In spite of the cultural similarities between the Five Civilized Tribes and white Georgia citizens, Georgia urged Congress to act against the tribes.[30] The Supreme Court, led by Chief Justice Marshall held for the Cherokee and indicated that tribes are in effect domestic dependent nations.[31] Nonetheless, the Jackson Administration went ahead with the deportation of Cherokees westward to Oklahoma resulting in 8,000 deaths along the Trail of Tears.[32] Native Americans, even those with Westernized American customs were seen as occupying valuable land that could be freed up for agriculture, and inhabitation by new arrivals.[33] The existence of Cherokee syllabary undermined the idea of Native American cultural inferiority that served as the premise of Indian removal, prompting public outcry from many American leaders even at the time of deportation. Additionally, Cherokee syllabary gave Cherokee Indians a means of resisting U.S. hegemony, with ten percent of current day Eastern Cherokee speaking the language, and was used to document tribal law and folk medicine even in the aftermath of the tragic removal.[34] State governments and private actors were often as callous as the federal government in their treatment of Native Americans. In the single most egregious example, California in 1850 passed Chapter 133, authorizing genocide against its native residents, including taking natives into indentured servitude.[35] By the early 1870s, as many as 16,000 native California Indians were exterminated or worked to death.[36] In the aftermath of the Civil War, Congress feared disunity in the U.S. Native Americans were perceived as standing in the way of economic progress and particularly in the West still controlled valuable lands that the government wanted to open up for settlement.[37] Perhaps due to awareness of cultural achievements like the Cherokee syllabary, Native Americans were seen as being on a more equal footing with white Americans in the 19th century’s racial hierarchy if they could be retrained in the ways of “civilization.”[38] In 1871, the President and Senate were ostensibly stripped of their power to negotiate treaties with tribes, but in fact agreements continued to be made, adopted as legislation by Congress.[39] Between 1887 and 1934, the Department of the Interior allotted parcels of land to Indian heads of households.[40] The land would be held in trust for twenty-five years, before the Indian owner gained full-title.[41] But full-title would expose these properties—many on marginal land—to state and local taxation, often resulting tax foreclosure.[42] The result was a rapid fragmentation of Indian lands, with the goal of assimilating Indians with the rest of American society.[43] At the same time as tribes were dismantled through federal Indian land policy, the federal government launched a formal policy of assimilating Native Americans, which took the form of forced enrollment of native children in boarding schools after 1879.[44] In the words of Richard Henry Pratt, the founding director of the Indian residential Carlisle School, the goal of the Bureau of Indian Affairs was to “Kill the Indian, save the man.”[45] This meant prohibiting children from speaking their indigenous languages, contributing significantly to the dramatic decline of Native American languages.[46] Between 1879 and 1960, an estimated 100,000 Native American children passed through boarding schools, and even as late as 1971 seventeen percent of Native American children were in foster care or institutions.[47] Indians also lost out at the state level, particularly in the binary racial system of the Jim Crow South.[48] The Houma Indians in Louisiana, for instance, were classified as “coloured” by the state supreme court in 1918, and were subject to racially segregated schools.[49] Houma marriages were unrecognized by the state and as a result Houma children were illegitimate and could not inherit land.[50] Once oil was discovered in the region, private actors exploited lack of English knowledge among the Houma to fraudulently acquire land and conduct tax sales.[51] In one of the most flagrant abuses of Louisiana’s state powers leveled against Indians, some Ofo Indians were placed into mental institutions for speaking their own language, on the grounds that were not “real” Indians simply because the tribe lacked federal recognition.[52] The Indian New Deal beginning in 1934 with the Indian Reorganization Act was the first statute that allowed tribes to opt out of federal legislation, ending further allotments and directing the Secretary of the Interior to repurchase land for tribes.[53] During World War II, as it did in World War I, the federal government found a use for indigenous language, recruiting Navajo men as “code talkers” or “windtalkers” concealing U.S. communications from interception by Japan by speaking in Navajo.[54] Ironically, the U.S. came to rely on indigenous languages to meet its wartime needs, even while attempting to stomp them out at home. Although the Indian New Deal offered a ray of hope, it did nothing to roll back assimilationist cultural policies. The boarding schools program formally ended with the 1953 Indian Termination Act.[55] But the Termination Act itself was assimilationist in its goals: Congress terminated tribal governments, eliminated recognition, revoked federal funds, and privatized tribal businesses.[56] President Johnson signaled a different direction with the passage of the Indian Civil Rights Act, mandating tribes to follow many aspects of Constitutional law, and established the National Council on Indian Opportunity (NCIO)—although the Johnson Administration’s efforts may have been largely assimilationist. The Nixon Administration pushed for tribal self-determination, which took the form of the Indian Self-Determination and Education Assistance Act.[57] Language goes to the core of what it means to be a “people,” in an ethno-linguistic sense. Yet, the role of languages is more than theoretical in the context of federal recognition, tribal law, and treaty interpretation. After attitudes began to shift in favor of Indian sovereignty after the 1960s, indigenous languages—and culture—received newfound attention in the law. In United States v. Washington, in 1974, [58] the U.S. sued to settle Indians’ off-reservation treaty fishing rights. Judge Boldt, deciding the case, in favor the Indians looked at what the Indians would have understood at the time the treaty was negotiated. “There is no indication that the Indians intended or understood the language ‘in common with all citizens of the Territory’ to limit their right to fish in any way.”[59] Considering what the signers of the treaty would have understood at the time, communicating in Chinook Jargon, the Ninth Circuit held for the Indians again in 2017, when faced with a challenge to culvert construction by the State of Washington.[60] The Supreme Court followed this line of reasoning in the 2019 Cougar Den case.[61] In Cougar Den, Justice Gorsuch concurred, contending that the treaty should be interpreted as the Yakama language speakers would have understood it, whereas Justice Kavanaugh dissented taking a different interpretation of the treaty, in part on language grounds.[62] Alongside the rise in treaty interpretation based upon indigenous languages, some tribes began to readopt their languages within tribal law. Within the Navajo Nation, the Navajo Nation Bar now attracts both members of the tribe and non-Indians.[63] But simultaneously, beginning in the 1980s there was a resurgence of traditionalism within Navajo law, emphasizing Navajo language documents, judges as peacemakers, and above all “Navajo thinking.”[64] During the critical years of the 1970s and 1980s as cultural preservation and tribal sovereignty returned to being priorities, Congress also took steps to foster cultural cohesion, reversing course on assimilationist policies that reined supreme at the Bureau of Indian Affairs as late as 1974. In 1958, during the Termination Era, the Bureau of Indian Affairs had launched the Indian Adoption Project, placing Indian children with white families.[65] A press release from 1966 boasted “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken in the waifs as their own.”[66] Between 1969 and 1974, as many as thirty five percent of native children were removed from their homes and placed in foster care or adopted.[67] Responding to this state of affairs, Congress passed the Indian Child Welfare Act (ICWA) in 1978.[68] ICWA grants tribes automatic jurisdiction in child custody proceedings for children domiciled on reservations, and calls on state courts to transfer jurisdiction to tribes for off-reservation cases involving native children—although in practice the ICWA has given rise to contests between state and tribal jurisdiction.[69] In parallel with the reassertion of treaty rights and a reemergent role for native languages in tribal law, Congress prioritized indigenous rights in different areas. Historical preservation laws expanded to encompass Native Americans throughout the waves of Congressional statutory action in the 1970s, 1980s, and 1990s. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) is the cornerstone of a statutory regime intended to better protect Native American cultural artifacts. NAGPRA provides that items may be excavated with a permit under section 4 of the Archaeological Resources Protection Act of 1974, in consultation with tribes.[70] NAGPRA emerged in 1990 out of the Reservoir Salvage Act of 1960, the Archaeological Resources Protection Act, the American Indian Religious Freedom Act, and the 1989 National Museum of the American Indian Act.[71] NAGPRA applies to four types of items: (1) human remains, (2) funerary objects, (3) sacred items, and (4) objects of “cultural patrimony.”[72] Items of cultural patrimony are “items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself.”[73] Courts have upheld “cultural patrimony” against void for vagueness constitutional challenges, such as affirming the conviction of an art dealer selling Hopi masks.[74] Many states have adopted state-level statutes similar to NAGPRA.[75] The advent of NAGPRA at the federal level, and similar legislation at the state level is in effect a legislative record of governmental interest in proactive protection of Native American culture. C. Linguistic Rights and the Status of Indigenous Languages in Federal Law after 1990 In the same historical moment as the enactment of NAGPRA, Congress adopted the Native American Languages Act of 1990.[76] The statute does not define linguistic rights, but comes closer to formalizing respect for indigenous languages than any other legal instrument. The U.S. Constitution is an intentionally sparse document and makes no reference to linguistic rights.[77] Nevertheless, some form of linguistic rights would seem to be inferred by the Constitution. Courts have focused on "substantive due process" under the Fifth and Fourteenth Amendment.[78] Due process concerns around language emerged during a wave of anti-German backlash brought on by World War I.[79] A Nebraska law forbid teaching of any language other than English to students until after graduation from the eighth grade, and a parochial school teacher was convicted of teaching German to a student.[80] The US Supreme Court reversed the conviction on due process grounds.[81] "It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child."[82] Indigenous language rights in the U.S. could be positioned under (1) due process, (2) equal protection, (3) First Amendment free speech, (4) retained rights under the Ninth Amendment, and (5) the tribal trust relationship with the federal government—or by extension freedom of association under the First Amendment.[83] Historic treaties with Native Americans in the 18th and 19th centuries are largely silent on the question on linguistic rights, with the exception of the 1828 Treaty with the Western Cherokee, that mentions the Cherokee language indirectly.[84] Thus, the enactment of NALA was a major step for Congress. Although NALA was a forceful statement of Congressional support for Indian self-determination, it did not specify any actions or provide funding for indigenous languages.[85] Congress subsequently adopted the NALA of 1992, which did include one- to three-year grants for training programs, disseminating teaching materials, preparing broadcasts, or carrying out audio-visual recordings.[86] However, the second NALA allocated initially only two million dollars a year and required a twenty percent grant match by recipients.[87]The Act extends its definition of "Native Americans" to Native Hawaiians and "Native American Pacific Islander[s]" thus encompassing Chamorrans and Samoans.[88] However, thirty years later, financing under the Act has proven sparse, dedicating $13 million annually between 2020 and 2024, while the provincial government of British Columbia in Canada has dedicated $50 million per annum in a single province.[89] Only a few court cases have been brought under NALA. In 1996, the District of Hawaii ruled against Native Hawaiians in a suit brought against the state Department of Education and Bureau of Education, which indicated that NALA does not abrogate Eleventh Amendment immunity for states or rights enforceable under § 1983.[90] Congress expanded on its early 1990s pronouncements in 2006[91] and 2015, by establishing a grant program to fund schools that use Native American and Native Alaskan, reserving twenty percent of appropriations under 20 U.S.C.A. § 7492 for this funding.[92] It defined “eligible entities” for grant purposes as Indian tribes, tribal colleges and universities, tribal or local educational institutions, Bureau of Indian Education schools, nontribal for-profit organizations, private or tribal nonprofit organizations, and Alaska Native Regional Corporations.[93] Effective March, 2021, the U.S. Code provides for grants to encourage language transfer between old and young Native Americans, support printing and distribution of training materials, buying audiovisual equipment for documentation, training language educators, and translators, and transcribing existing oral testimony.[94] Additionally, Congress added supports for language nests, language restoration programs, and language survival schools.[95] Secretary of the Interior Deb Haaland and First Lady Jill Biden visited the Cherokee Nation in early December, 2021 to promote Native American language rights. The Office of Indian Economic Development touted its Living Languages Grant Program, with a goal of disbursing fifteen to sixty grants in 2022, valued between $25,000 to $200,000.[96] Chamorro, the native language of Guam, is presumptively included in consideration for grant financing based upon the text of 25 U.S.C.A. § 2902, which reads “The term ‘Native American’ means an Indian, Native Hawaiian, or Native American Pacific Islander.” Thus far, federal law has not explicitly referred to Chamorro, although efforts at language revival are recognized in Guam’s territorial law.[97] The Guam Department of Education is required to develop a Chamorro curriculum in all island elementary and secondary schools, encompassing six years of mandatory Chamorro coursework, and the regular singing of the Guam Hymn.[98] D. Indigenous Languages in State Law Among U.S. states, Hawaii may be the leader in indigenous language rights. English and Hawaiian are formally declared as official state languages in the Hawaiian Constitution.[99] To-date, Hawaii is the only state with an indigenous language enshrined in its state constitution, but South Dakota in 2019 adopted Lakota, Dakota, and Nakota as official languages through legislation.[100] The question of indigenous language rights is inevitably bound up in questions of English as a state official language. Thirty states have adopted English as the official language at the state level.[101] However, the U.S. English Foundation states, “‘English-Only’ is an inaccurate term for any piece of official English legislation. U.S. English, Inc. has never and will never advocate for any piece of legislation that bans the use of languages other than English within the United States.”[102] This assessment would appear to be true in the context of indigenous languages, because both Hawaii and North Dakota have adopted official English laws.[103] E. Indigenous Linguistic Rights Around the World Article 13 of the UN Declaration on the Rights of Indigenous People proclaims, “Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.”[104] Official status for minority language is a common policy in many countries, particularly within the European Union.[105] Many countries have witnessed stability thanks to a lingua franca, which can facilitate trade and learning, while lessening ethnic and regional differences. However, official policies of multilingualism can promote both goals. New Zealand stands out as a model for the U.S. given its similar history and comparable, English-derived common law legal system, where the 1840 English-Maori Treaty of Waitangi serves as the foundational, constitutional document. [106] In spite of high Maori language literacy in the 19th century, official policy promoted English and ultimately the mass migration of Maori off of traditional lands to cities throughout much of the 20th century.[107] After almost a century of complete obscurity in New Zealand law, Parliament adopted the Maori Affairs Act of 1953, which granted official status to the Maori language.[108] New Zealand courts proved unwilling to use the 1953 Act to uphold a right to a Maori interpreter in courts, in the 1980 case Mihaka v. Police.[109] However, in 1975 the government had passed the Treaty of Waitangi Act, creating a Waitangi Tribunal to investigate Maori claims.[110] In 1986, weighing testimony from Maori people, linguists, and government agencies, as well as examining the original Maori text of the Treaty of Waitangi, the Tribunal concluded that the Maori language was a “valued possession” within the meaning of the treaty, and the national government had an affirmative duty to preserve it.[111] In 1981, a new generation of Maori parents launched Te Kohanga Reo language nests to boost Maori language knowledge, with 600 active throughout the country by 1998.[112] What started as a purely private initiative gained steam after the 1986 Tribunal decision, when the New Zealand Parliament passed the Maori Language Act of 1987.[113] The same year, it established the Maori Language Commission to track language proficiency and began providing millions of dollars in funding toward language nests and school programs.[114] Scandinavian governments have emerged as leaders in national government support for indigenous languages.[115] In Sweden, Sami indigenous people (better known in English as Lapps) comprise only 0.1 percent of the population.[116] Sami people were historically mistreated along a similar pattern as Native Americans, with children placed in assimilationist boarding schools until 1962, human remains kept in government research institutions, and land seized for mining.[117] Starting in 1962, Sweden implemented Sami language education programs, providing weekly classes, textbooks, university instruction, and teacher training.[118] Taiwan, after the end of authoritarian rule in the 1980s became a model for linguistic rights, reversing decades of poor treatment of its indigenous inhabitants.[119] Throughout the 1990s, continued dominance by the traditionally Chinese nationalist Kuomintang party prevented official status for indigenous languages in schools, but the success of the Taiwanese nationalist Democratic Progressive Party in the late 1990s resulted in mandatory Taiwanese language classes in primary schools after 2001.[120] The National Languages Committee that previously promoted Mandarin Chinese shifted to promoting indigenous languages. The country’s National Chengchi University produced thirty eight language textbooks and a series of thirteen proficiency exams, which aboriginal students can use to gain additional points for university admissions.[121] Borrowing from the revitalization efforts in New Zealand for Maori, Taiwan established “language nests” placing elderly speakers together with pre-school children after 2001.[122] Even countries without the degree of formalized minority language protection have increasingly taken some action to serve minority language speakers. For instance, by 2007, the U.S. and Canada each provided some degree of bilingual education support, while in Israel, Arab residents of ethnically mixed towns persuaded the Israeli Supreme Court to mandate bilingual signs.[123] F. Unique Considerations with American Indigenous Languages: Voting Rights Indians were long excluded from the voting rolls in the US.[124] The Civil Rights Act of 1866 excluded “Indians not taxed” and in the 1884 case Elk v. Wilkins the Supreme Court found Indians were not citizens within the meaning of the 14th Amendment.[125] Even after the passage of the 1924 Indian Citizenship Act, six states banned Indians from voting if they were untaxed.[126] Until 1958, North Dakota’s Constitution required Indians to sever tribal ties two years before voting in any election.[127] The Voting Rights Act of 1965 applied the Fifteenth Amendment more forcefully, but through the constitutionally suspect pre-clearance regime, administered by Department of Justice and the courts.[128] Section 203 of the VRA requires that jurisdictions with large language minorities offer written materials in languages other than English.[129] However, 1982 VRA amendments raised the requirements so that at least five percent of individuals in a jurisdiction needed to speak a second language.[130] As a result, VRA coverage was eliminated for most previously covered counties in Oklahoma, North Dakota, and Montana.[131] In 2000, over twenty percent of Native Americans had limited English proficiency.[132] Online voter registration, where implemented is typically not offered in indigenous languages, and even the production of written material for elections may be of limited value where languages are primarily spoken rather than written.[133] The VRA remains a fiercely contested piece of federal legislation, centered on left-right debates around voter ID laws. Proponents of Native American voting rights contend that Native Americans continue to face barriers to voting. For instance, in 2019, only 1.4 percent of North Dakota legislators were Native American, even though 6.5 percent of the state’s population are indigenous.[134] Democrats have put forward the Native American Voting Rights Act to reimpose pre-clearance, and (in one iteration) fund tribal-state consortiums to expand Native voter registration.[135] Apart from the question of federal voting rights, indigenous languages are also implicated in tribal politics. Some tribes have language fluency requirements to stand for tribal office.[136] Such requirements proved popular in the Southwest, with the Navajo, Hopi, and White Mountain Apache tribes.[137] However, in 2015, the Navajo Nation eliminated its Navajo fluency requirements for tribal offices.[138] G. Unique Considerations with American Indigenous Languages: Telecommunications Access to telecommunications services and new media technology is central to indigenous language preservation and revitalization. Although television and internet can enhance the “network effects” of language, encouraging greater awareness of common tongues, it can also offer a vital avenue to audiovisual or text archiving, creating and distributing media, and coordinating among groups with similar experiences. Reliable telecommunications are particularly significant because over seventy eight percent of Indians live off of reservations, creating a physical and technological distance from reservation communities where indigenous languages are often most likely to be spoken.[139] Native American media has deep roots in the US.[140] Cherokees launched the bilingual English-Cherokee Phoenix newspaper in 1827.[141] Throughout the 1940s, some radio stations began to broadcast programs in indigenous languages.[142] In 1983, the American Native Press Archives launched as a means of collating indigenous publications.[143] The advent of the internet expanded Native American media with the Koahnic Broadcast Corporation, Indian Country Today, and Center for Native American Radio (financed in part by the Corporation for Public Broadcasting).[144] Walking into any university library is a good reminder of the extent of research on Native American culture, history, and archaeology. However, these resources—and the ability to engage with new media—remain out of reach for many reservation residents. At the dawn of the 21st century, as broadband and cellular service made rapid inroads throughout most of the US, reservations lagged far behind.[145] In 1999, only thirty-nine percent of rural Native American households had telephones, and forty-four percent of tribes lacked local radio stations.[146] At the time, tribal governments had not exercised regulatory authority over telecom, leaving that to the Federal Communications Commission (FCC) and in some cases state public utility commissions.[147] One commentator described reservations as subject to “geographic apartheid” and “electronic redlining,” with limited penetration of phone service and broadband internet. [148] But a more careful examination of the issues facing telecom on reservations reveals a more nuanced interplay between poorly considered tribal and federal policy. The FCC launched its Office of Native Affairs and Policy (ONAP) in 2010.[149] The same year, the FCC created a Tribal Radio Priority to support access to communications services.[150] In a 2019 report, ONAP identified current day challenges with telecom deployment on tribal lands.[151] Universal service funds are often targeted to single uses like libraries or healthcare, blocking opportunities for “synergies and efficiencies.”[152] The Ewiiaapaayp Band of Kumeyaay Indians in San Diego County, lacks phone and internet connectivity, although it appears on internet service provider maps as fully served. Although the tribe has proposed colocation of facilities, USF funds cannot be co-mingled at the present time.[153] When broadband providers receive federal telecom funds, such as out of the Connect America Fund, tribes are not consulted—and are often last in line for build out.[154] Broadband providers can sometimes meet build out requirements without actually building out infrastructure to tribes. In its report, the FCC recommended a Tribal Priority to accompany the 2010 Tribal Radio Priority.[155] “Tribes should be given first priority or a right of first refusal for receiving federal funding and the priority for subsidies should include the right of Tribes to exercise oversight, determine what service is acquired and how services should be distributed on or over Tribal lands with respect to all communications services, regardless of delivery technology.” For now, the FCC lacks a standard definition of “tribal lands,” complicating efforts to target funding.[156] By virtue of location, often in remote rural areas, many reservations are low priorities for telecom investment to begin with. But tribes are limited in their ability to collateralize assets to gain loans due to the inability to collateralize federal and state reservations lands and allotted trust lands.[157] Tribes are also inhibited where a tribal government lacks a reservation, has a checkerboard reservation, or lacks the ability to access “middle-mile” connections (uses of USF funds for middle-mile development can be limited in some circumstances).[158] Because tribes are sovereign domestic dependent nations, tribal laws apply on reservations. Zoning and land use laws vary widely, creating uncertainties for telecom infrastructure projects.[159] III. LEGAL ANALYSIS After centuries long setbacks, Native Americans, Pacific Islanders, and Native Alaskans have finally regained self-determination. However, indigenous languages continue to decline. Faced with this troubling situation, indigenous groups of all sizes have begun to act. In Wisconsin, the state’s eleven federally recognized tribes have coordinated with the state to put in place bilingual road signs thus emphasizing native languages in one of the most obvious examples of the linguistic landscape,[160] Ojibwe Indians have launched a “language nest” for young children at University of Minnesota-Duluth,[161] and the Fort Berthold Indian Reservation is working with the University of North Dakota to digitally preserve the Mandan, Hidatsa, and Arikara languages.[162] Tribal sovereignty granted tribal governments considerable flexibility to distribute vaccines during the Covid-19 crisis, and the Cherokee prioritized speakers the 2000 speakers of the Cherokee language.[163] Such prioritization by tribes of all sizes—even small ones—indicates the importance of language for what it means to be a “people” in the 21st century. The role of language in making a “people” is true not only in a cultural and sociological sense, but also in a legal sense. In 1974, the U.S. Supreme Court famously indicated that tribes are political, rather than racial in-nature, and that federal policy is intended to serve these “constituent groups,” which are “quasi-sovereign tribal entities whose [members’] lives and activities are governed by the BIA in a unique fashion.”[164] Although language is not a requirement for tribal membership, in the way that it is to become a U.S. citizen,[165] it can be a valuable basis for tribes as “constituent groups.” Congress has the ability to increase annual funding allocations for language grant programs. However, language preservation inevitably raises questions about priorities. Many reservations face serious funding shortfalls around education, policing, infrastructure, public health, and even fundamentals like food and medicine. Why prioritize language preservation when these other areas are neglected? For many tribes, these fundamental needs do come first, and enhanced federal support is doubtless welcome. But language preservation—and indeed revitalization—may be more essential than many imagine. Having a common tongue can be an essential part of what it means to be a people, and the type of cultural exchange needed to revitalize a language has the potential to enhance interest in education, promote intergenerational exchange, and networking within a tribe. In the event that Congress is unable to furnish additional funding for indigenous languages, Congress could work with tribes to develop a prudential or objective standard for allocating grants. Such a formula should weight the degree to which a language is documented in books, dictionaries, audio-visual material, and teaching material, against the number of potential speakers. The goal of this type of “language triage” would be to find languages that are both the least documented and have the most potential speakers, prioritizing funds for those languages first. Ensuring that languages are documented gives latitude to current and future generations to decide the role of language in their own community. For instance, current and future generations of Houma could opt to learn Houma French with its Choctaw grammar elements, revive the traditional Houma language, or use Mobilian Trade Jargon. Prioritizing language preservation is in-line with other federal policies enacted in the nearly sixty years since the passage of the Indian Civil Rights Act. Promoting indigenous languages, broadly speaking, serves the goals of the Indian Child Welfare Act, with its focus on keeping native families and culture intact.[167] Passing a Sequoyah Act as the capstone of a series of federal laws concerning indigenous languages would be a significant step. However, other federal, state, and municipal legal considerations must be weighed as well. A. Non-Native Nations? Among settler-immigrant countries, Canada and South Africa are perhaps notable for the presence of non-native, but nonetheless culturally and linguistically distinct ethnic groups that have undergone a process of advanced post-settlement ethnogenesis. French-Canadians (both Quebecois and Acadian) and Afrikaners are the examples that come to mind most readily. The US due to rapid settlement and a pattern of cultural homogenization has ample regional distinctions, but fewer groups that might compare with the cultural position of French-Canadians and Afrikaners. Nevertheless, the US is not without ethno-linguistically distinct, non-native groups. To varying degrees Cajuns in Louisiana, Acadians in Maine, Amish and Hutterites, ultra-Orthodox Jews—and communities added to the United States by conquest like the Tejanos of Texas or Puerto Ricans—might merit comparisons. Federal policy aimed at promoting strong cultural institutions might find other means of supporting this groups, although such support is likely to come most appropriately (and effectively) from the state level. Rather, the test under expanded federal grant funding is likely to be (1) federal recognition, (2) unrecognized indigeneity significantly similar to federally recognized groups, or (3) ethnogenesis out of indigenous elements. The goal of linguistic protections is likely to be over-inclusive, rather than under-inclusive. B. Improving the Position of Indigenous Languages at the State Level The formalization of indigenous official languages in two U.S. states with highly divergent politics, like Hawaii and South Dakota, suggests that there may be openness to similar legislative language promotion elsewhere. Adopting some form of official or minority language status through legislation—or in the state constitution—should be a priority, particularly in states with large indigenous populations like California, Arizona, New Mexico, Oklahoma, North Dakota, and Alaska. State university systems also have a significant role to play, providing coursework in indigenous languages, or granting language credit to indigenous speakers. For instance, Arizona State University has launched a Navajo language program.[168] Municipal governments can also play a role in promoting indigenous languages, through town, city, or county referendums or votes defining the languages of official business.[169] In Iowa, by late 2000, eleven counties had voted to make English the official language of county business, presaging a statewide official language bill.[170] Although little explored, the municipal avenue could be a way to implement increased supports, and indeed pressure state governments to act on indigenous languages. Although federal courts have consistently held that neither the Equal Protection Clause nor the Civil Rights Act of 1964 create a right to language access, in actuality denying public services based on language would quickly run afoul of race, ethnicity, and national origin protections.[171] Executive Order No. 13,166, issued in August, 2000,[172] requires federal funds recipients to “ensure meaningful access to programs and activities,” for those with limited English proficiency.[173] State agencies and municipalities are strongly encouraged to come up with data-based plans and provide language access services that can include hiring interpreters or bilingual staff, coordinating with community groups, or contracting for telephone translation services.[174] Telephone-based systems have proven particularly important for some languages, like Hmong, that are oral only.[175] Tribal governments can file complaints with federal agencies funding state and municipal programs if language services are not met, or depending upon the state remedies available may also be able to sue in state courts under state civil rights statutes.[176] C. Improving Telecom on Reservations to Boost Indigenous Languages The FCC, in coordination with tribal governments, could create a more encompassing Tribal Priority for communications, to support the development high speed broadband, 5G, and traditional cellular and radio infrastructure on reservations. Simultaneously, in coordination with tribes and the Bureau of Indian Affairs, the FCC should collate a centralized database of tribal laws governing telecom infrastructure, and promulgate a model statute for tribes to accelerate the deployment process. Additionally, the FCC should clarify data gathering for USF funds and require that broadband providers build out reservation infrastructure upon receipt of funds. IV. CONCLUSION The US federal government has an obligation to provide financial and legislative support for the revitalization of indigenous languages. Linguistic rights are implied by the US Constitution and the treaties with indigenous groups, and are an essential part of future federal policy towards indigenous people. Scandinavia, New Zealand, and Taiwan provide models which could be emulated to achieve these goals. Fortunately, the development of grant programs and support for indigenous languages since 1990, with major amendments in 2015 and 2021 suggests a brighter future for indigenous languages in the US. Congress should clarify that these supports extend to Chamorro and to extinct languages. In coordination with the FCC, it should support improvement of telecom infrastructure that will allow better access to—and promotion of—indigenous languages. [1] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [2] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [3] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [4] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [5] American Academy of Arts & Sciences, The State of Languages in the US: A Statistical Portrait 3 (2015). [6] See Marren Sanders, Genomic Research in Indian Country: The New Road to Termination?, 39 Okla. City U. L. Rev. 1, 9 (2014). [7] 2020 Census: Native population increased by 86.5 percent, Indian Country Today, (Aug. 13, 2021), https://indiancountrytoday.com/news/2020-census-native-population-increased-by-86-5-percent; Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 260 (2005). [8] See generally Pennsylvania Historical Commission & Museum, Native American Archaeology (Sept. 10, 2015), http://www.phmc.state.pa.us/portal/communities/archaeology/native-american/index.html. [9] Angela R. Riley, Indians and Guns, 100 Geo. L.J. 1675, 1694 n.106 (2012). [10] John W. Ragsdale, Jr., Values in Transition: The Chiricahua Apache from 1886-1914, 35 Am. Indian L. Rev. 39, 45 n.26 (2011). [11] Lakshmi Gandhi, The History Behind The Phrase 'Don't Be An Indian Giver', NPR (Sept. 2, 2013), https://www.npr.org/sections/codeswitch/2013/09/02/217295339/the-history-behind-the-phrase-dont-be-an-indian-giver. [12] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [13] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [14] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [15] Lyle Campbell, American Indian Languages: historical linguistics of Native America 9 (2000). [16] Lyle Campbell, American Indian Languages: historical linguistics of Native America 10 (2000). [17] Diane Smith, ed. et al., Developing Governance and Governing Development 90-92 (2021). [18] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [19] Lyle Campbell, American Indian Languages: historical linguistics of Native America 11 (2000). [20] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111 (2013). [21] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 111-14 (2013) (explaining that epidemics continued to sweep native communities until 1900). [22] Roger Williams, A key into the language of America (1643) (unnumbered book). [23] Roger Williams, A key into the language of America (1643) (unnumbered book). [24] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 113-14 (2013) (Great Lakes populations had begun to recover from first contact during the 1700s, in response to the fur trade). [25] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide 116 (2013). [26] Johnson v. M’Intosh, 21 U.S. 543, 543 (1823). [27] See generally Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [28] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [29] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life xi (2002) (explaining that some tribes resisted literacy fearing it would result in language loss, but the existence of written forms of the language have proven critical to the long-term preservation of the Cherokee and Ute languages). [30] Id. [31] Cherokee Nation v. State of Ga., 30 U.S. 1, 3 (1831). [32] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 117 (2013). [33] Sabby Sagall, Final Solutions: Human Nature, Capitalism and Genocide, 118 (2013). [34] Margaret Bender, Signs of Cherokee Culture : Sequoyah's Syllabary in Eastern Cherokee Life 7-8, 112 (2002). [35] Brendan C. Lindsay, Murder state: California’s Native American Genocide, 1846-1873, 245 (2012). [36] Benjamin Madley, An American Genocide, The United States and the California Catastrophe, 1846–1873, 11 (2016). [37] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [38] See Jessica Keating, The Assimilation, Removal, and Elimination of Native Americans, University of Note Dame 6 (2020). [39] Matthew L.M. Fletcher, Federal Indian Law 8 (2016) (citing 25 U.S.C. § 71). [40] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [41] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [42] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [43] Matthew L.M. Fletcher, Federal Indian Law 9-10 (2016). [44] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013). [45] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 154 (2013). [46] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 152 (2013). [47] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [48] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [49] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [50] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021). [51] Diane Smith, ed. et al., Developing Governance and Governing Development, 90 (2021) (history of Houma Indians developed by Professor Adam Crepelle). [52] Adam Crepelle, Standing Rock in the Swamp: Oil, the Environment, and the United Houma Nation’s Struggle for Federal Recognition, 64 Loy. L. Rev. 141, 152 (2018). [53] Matthew L.M. Fletcher, Federal Indian Law 12 (2016). [54] Navajo Code Talkers and the Unbreakable Code, CIA, (Nov. 6, 2008), https://www.cia.gov/stories/story/navajo-code-talkers-and-the-unbreakable-code/. [55] Ann Piccard, Death by Boarding School: “The Last Acceptable Racism” and the United States’ Genocide of Native Americans, 49 Gonz. L. Rev. 137, 151 (2013) (as its name suggests, the Indian Termination Act attempted to shutdown tribes, denying sovereignty as a means of assimilation). [56] Matthew L.M. Fletcher, Federal Indian Law 12-13 (2016). [57] Matthew L.M. Fletcher, Federal Indian Law 13-14 (2016). [58] James T. Johnson, Treaty Fishing Rights and Indian Participation in International Fisheries, 77 Denv. U. L. Rev. 403, (1999) (citing United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974)). [59] United States v. Washington, 384 F. Supp. 312, 333 (W.D. Wash. 1974). [60] United States v. Washington, 853 F.3d 946, 972 (9th Cir. 2017). [61] See generally Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000 (2019). [62] Wash. State Department of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000, 1018-28 (2019). [63] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 543 (2002). [64] James W. Zion, Civil Rights in Navajo Common Law, 50 U. Kan. L. Rev. 523, 544-45 (2002). [65] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [66] Indian Adoption Project, Upstander Project, (2022), https://upstanderproject.org/firstlight/iap. [67] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 207 (2016). [68] 25 U.S.C. §§ 1901–1963. [69] Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 203 (2016); see also, ICWA Guide Online, Topic 2: Jurisdiction, National Indian Law Library (2022), https://narf.org/nill/documents/icwa/faq/jurisdiction.html. [70] 25 U.S.C. § 3002; see generally, Michael F.P. Doming, The Tale of the Tunica Treasure, The Harvard Crimson, (Oct. 13, 1983), https://www.thecrimson.com/article/1983/10/13/the-tale-of-the-tunica-treasure/ (explaining the legal dispute between the Tunica Indians of Louisiana and Harvard’s Peabody Essex Museum, a precursor of NAGPRA). [71] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 264-65 (2005). [72] 25 U.S.C. § 3001(3). [73] 43 C.F.R. § 10.1(b)(3). [74] United States v. Tidwell, 191 F.3d 976 (9th Cir. 1999); United States v. Corrow, 119 F.3d 796 (10th Cir. 1997). [75] Kelly E. Yasaitis, NAGPRA: A Look Back Through the Litigation, 25 J. Land Resources & Envtl. L. 259, 285 (2005) (citing State v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 752-53 (Tenn. Ct. App. 2001)). [76] 25 U.S.C. §§ 2901-2906 (1990). [77] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331 (2005). [78] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [79] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 331-32 (2005). [80] Meyer v. Nebraska, 262 U.S. 390, 390 (1923). [81] Meyer, 262 U.S. at 403. [82] Meyer, 262 U.S. at 403. [83] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 332-44 (2005). [84] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 366 (2005) (citing Treaty with the Western Cherokee, May 6, 1828, art. 5, 7 Stat. 311). [85] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 22 (2008). [86] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [87] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 23 (2008). [88] 42 U.S.C. § 2991a. [89] Kristen Carpenter & Alexey Tsykarev, (Indigenous) Language as a Human Right, 24 UCLA J. Int'l L. & Foreign Aff. 49, 77 (2020). [90] Office of Hawai"ian Affairs v. Department of Educ., 951 F.Supp. 1484 (D. Hawai'i 1996); compare Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 470 F.3d 827 (9th Cir. 2006) (permitting exclusion of non-Native Hawaiians from private school enrollment). [91] Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 49 (2008) (citing Public Law No. 108-394). [92] 20 U.S.C.A. § 7453; 20 U.S.C.A. § 7492. [93] 20 U.S.C.A. § 7453. [94] 42 USCA § 2991b-3. [95] 42 USCA § 2991b-3. [96] Indian Affairs Announces Funding for Living Languages Grants, U.S. Department of the Interior, Dec. 3, 2021, https://www.bia.gov/news/indian-affairs-announces-funding-living-languages-grants. [97] 17 Guam Code §§ 8101 (2019). [98] 17 Guam Code §§ 8103 (2019) (https://law.justia.com/codes/guam/2019/title-17/division-2/chapter-8/). [99] Haw. Const. art. XV, § 4. [100] Lisa Kaczke, South Dakota recognizes official indigenous language, ArgusLeader (March 22, 2019), https://www.argusleader.com/story/news/politics/2019/03/22/south-dakota-recognizes-official-indigenous-language-governor-noem/3245113002/. [101] U.S. English, Official English Laws (2020), https://www.usenglish.org/us-states-official-english-laws/. [102] Id. [103] Id. [104]Art. 13, United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/295, 13 September 2007. [105] Robert F. Weber, Individual Rights and Group Rights in the European Community’s Approach to Minority Languages, 17 Duke J. Comp. & Int'l L. 361, 361 (2007) [106]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [107]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [108]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 503 (2004). [109]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 505-506 (2004). [110]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 511 (2004). [111]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 513-14 (2004). [112]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 499 (2004). [113]Summer Kupau, Judicial Enforcement of “Official” Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Rights, 26 U. Haw. L. Rev. 495, 514 (2004). [114]Rangi Nicholson, Marketing the Maori Language, Northern Arizona University, (2003), https://jan.ucc.nau.edu/~jar/TIL_16.html. [115] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 326 (2005). [116] James Fife, The Legal Framework for Indigenous Language Rights in the United States, 41 Willamette L. Rev. 325, 325 (2005). [117]Emma Hartley, Sami desire for truth and reconciliation process, Politico, (Jan. 10, 2016), https://www.politico.eu/article/sami-reconciliation-process-sweden-minority-multiculturalism-human-rights-discrimination/. [118] Fife, supra, note 1, at 326. [119] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 88-89 (2017). [120] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 89 (2017). [121] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [122] Jean-François Dupré, Culture politics and linguistic recognition in Taiwan: ethnicity, national identity, and the party system 90 (2017). [123] Julie Chi-hye Suk, Economic Opportunities and the Protection of Minority Languages, 1 Law & Ethics Hum. Rts. 134, 135 (2007). [124] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 300 (2019). [125] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 300 (2019); Elk v. Wilkins, 112 U.S. 94 (1884). [126] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 301 (2019). [127] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 302 (2019). [128] Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013). [129] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [130] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [131] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 305 (2019). [132] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019) (citing Brief of Amici Curiae for Navajo Nation, et al. in Support of Respondents and Respondent-Intervenors at 26, Shelby Cty. v. Holder, 133. S. Ct. 2612 (2013) (No. 12-96)). [133] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 309 (2019). [134] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev.295, 319 (2019). [135] Hannah Stambaugh, America’s Quiet Legacy of Native American Voter Disenfranchisement: Prospects for Change in North Dakota After Brakebill v. Jaeger, 69 Am. U. L. Rev. 295, 319 (2019). [136] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [137] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [138] Felicia Fonseca, Navajo Nation loosens language requirements for top leaders, AZCentral (Jul. 21, 2015), https://www.azcentral.com/story/news/arizona/politics/2015/07/21/navajo-nation-loosens-language-requirements--top-leaders/30499807/. [139]Joe Whittle, Most Native Americans live in cities, not reservations. Here are their stories, The Guardian, (Sep. 4, 2017), https://www.theguardian.com/us-news/2017/sep/04/native-americans-stories-california. [140] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [141] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [142] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [143] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 474 (2010). [144] Lorie M. Graham, A Right to Media?, 41 Colum. Hum. Rts. L. Rev. 429, 476 (2010). [145] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 154 (2001). [146] John C. Miller & Christopher P. Guzelian, A Spectrum Revolution: Deploying Ultrawideband Technology on Native American Lands, 11 CommLaw Conspectus 277, 278 (2003). [147] Daniel J. Adam, Tribal Telecom: Telecommunications Regulation in Indian Country, 27 J. Legis. 153, 162 (2001). [148] Leonard M. Baynes, Deregulatory Injustice and Electronic Redlining: The Color of Access to Telecommunications, 56 Admin. L. Rev. 263, 293-94 (2004). [149] Office of Native Affairs and Policy, FCC, About the Office (Nov. 4, 2021), https://www.fcc.gov/office-native-affairs-and-policy. [150] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf (explaining that only eighteen tribes held spectrum licenses in 2019). [151] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [152] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 6 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [153] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 9 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [154] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 11 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [155] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 14 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [156] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 15 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [157] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 19 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [158] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 22 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [159] Improving and Increasing Broadband Deployment on Tribal Lands, FCC Native Nations Communications Task Force 29 (Nov. 5, 2019), https://www.fcc.gov/sites/default/files/nnctf_tribal_broadband_report.pdf. [160]Frank Vaisvilas, Wisconsin's first Indigenous language road signs are unveiled at Red Cliff, marking 'an historic day’, Green Bay Press Gazette, (Nov. 9, 2021), https://www.greenbaypressgazette.com/story/news/native-american-issues/2021/11/09/wisconsin-installs-indigenous-language-road-signs-red-cliff/6345135001/. [161]Kathleen McQuillan-Hofmann, Enweyang Ojibwe Language Nest, University of Minnesota Duluth, (2015), https://web.archive.org/web/20150906181515/http://www.d.umn.edu/external-affairs/homepage/10/languagenest.html. [162]North Dakota colleges collaborate to preserve tribal language, culture, (Oct. 18, 2021), https://www.newscenter1.tv/north-dakota-colleges-collaborate-to-preserve-tribal-language-culture/. [163]Rachel Hatzipanagos, How Native Americans launched successful coronavirus vaccination drives: ‘A story of resilience’, Washington Post, (May 6, 2021), https://www.washingtonpost.com/nation/2021/05/26/how-native-americans-launched-successful-coronavirus-vaccination-drives-story-resilience/. [164]Morton v. Mancari, 417 U.S. 535, 554 (1974). [165]English and Civics Testing, U.S. Citizenship and Immigration Services, (Jan. 13, 2022), https://www.uscis.gov/policy-manual/volume-12-part-e-chapter-2. [166]Allison M. Dussias, Indigenous Languages Under Siege, 3 Intercultural Hum. Rts. L. Rev. 5, 6 (2008). [167]See generally Courtney Hodge, Is the Indian Child Welfare Act Losing Steam?: Narrowing Non-Custodial Parental Rights After Adoptive Couple v. Baby Girl, 7 Colum. J. Race & L. 191, 202 (2016). [168] Learning Navajo language helps students connect to their culture, ASU, (Apr. 17, 2014), https://news.asu.edu/content/learning-navajo-language-helps-students-connect-their-culture. [169] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [170] Evan L. Seite, Language Legislation in Iowa: Lessons Learned from the Enactment and Application of the Iowa English Language Reaffirmation Act, 95 Iowa L. Rev. 1369, 1373 (2010). [171] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, (2013) (citing Guadalupe Org. Inc. v. Tempe Elementary School Dist. No. 3, 587 F.2d 1022, 1027 (9th Cir. 1978) (holding there is no constitutional right to bilingual education); and citing Carmona v. Sheffield, 475 F.2d 738, 739 (9th Cir. 1973) (holding no constitutional right to foreign language employment notices)). [172] 65 FR 50121, Exec. Order No. 13166, 2000 WL 34508183(Pres.) [173] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 40-45 (2013). [174] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 46 (2013). [175] David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48 (2013). [176] See David Jung et al., A Local Official’s Guide to Language Access Policies, 10 Hastings Race & Poverty L. J. 31, 48-50 (2013). Copyright © 2022

Before the current decade is out, America will mark the centennial of federal regulation of electric utilities and natural gas. Countless innovations and social shifts have transformed the energy industry in the intervening century, perhaps most significantly the creation of the electrical grid, the extension of the world's largest system of pipelines, and the advent of market deregulation. But even bigger shifts lie ahead. Faced with the challenges of atmospheric greenhouse gas emissions and fossil fuel reliance, America must retool itself as a hydrogen economy. America is usually an early leader in new energy technologies. But its robust energy infrastructure—legislatively and physically—can create bottlenecks that stand in the way of improvements. Hydrogen promises efficiency, portability, and abundance if it can be achieved without reliance on fossil fuels. But in order to achieve that promise, energy regulations must adapt. This report will examine the development of American energy regulation, current barriers facing alternative energy technologies, and opportunities to improve existing regulatory frameworks. ORIGINS OF AMERICAN ENERGY INDUSTRY REGULATION A. The Dream of a Hydrogen Economy and the Race to Integrate Renewables Hydrogen is the simplest element, and the most abundant form of matter in the universe.[1] During the 2003 State of the Union address, President George W. Bush touted the idea of a "hydrogen economy," with cheap hydrogen and hydrogen fuel cell technology displacing fossil fuels.[2] Hydrogen is by many standards the only highly portable liquid storage medium for energy that can rival fossil fuels.[3] It is attractive for industrial, home, and transportation uses thanks to its flexibility and because it can be produced from diverse sources such as oil, natural gas, and biomass through steam reforming, but results in the lowest greenhouse gas emissions when produced through electrolysis—the splitting of water molecules—achieved with the use of electricity from renewable sources or nuclear power.[4] The combustion of hydrogen produces essentially no pollution, yielding only water and heat, thus avoiding the serious environmental risks of fossil fuels.[5] Over recent decades, interest in hydrogen was spurred by two different objectives: energy independence and decarbonization.[6] Of the two, decarbonization to reduce reliance on fossil fuels, and achieve lower greenhouse gas emissions has emerged as the leading objective.[7] Hydrogen has a variety of advantages. When used in fuel cells, it can support vehicle mobility.[8] Compared with large fixed batteries or pumped storage facilities proposed to store renewable energy when the sun is not shining and the wind is not blowing, hydrogen promises extensive storage capacity.[9] Above all, it promises a long-term energy storage medium that can be transported by pipelines, trucks, or trains, and serve flexible roles in industry and consumer use.[10] Hydrogen does face some drawbacks. The cheapest ways to produce hydrogen are with steam methane reforming and autothermal reforming, but both methods produce carbon emissions.[11] Hydrogen faces potential losses of up to forty-five percent during transfer through pipelines or conversion into electricity in fuel cells, compared with twelve percent losses through the direct production and transmission of electricity from renewable sources.[12] Additionally, hydrogen poses unique infrastructure challenges because it interacts with many steel alloys, causing metal embrittlement.[13] Early innovation around hydrogen was dogged with concerns about safety and liability, because hydrogen is explosive.[14] However, concerns about hydrogen's combustible characteristics may be overblown, because it emits only one-tenth the radiative heat of a hydrocarbon fire.[15] Although hydrogen has faced some potential products liability barriers, that has not prevented California from introducing hydrogen fueling stations.[16] Hydrogen technology faces the incumbency of fossil fuel technology, which remains economical and well-established throughout the world, as well as government policies promoting battery technology in lieu of hydrogen. The federal government and some state governments are promoting electric vehicles (EV) as an alternative to gasoline, diesel, and hydrogen cars to curb greenhouse gas emissions from transportation. But the addition of EVs is placing new strains on the electrical grid.[17] A typical EV needs thirty kilowatt hours of electricity to go 100 miles, equaling the average consumption of all appliances in a typical American home. Mass electrification of road transport would increase the nation's electricity demand by upwards of thirty-eight percent, prompting surging demand in some states with limited capacity, such as Maine which would need to expand its electrical resources by fifty-five percent.[18] In some states like California, the grid has capacity for EVs, but may not be well calibrated to handle sudden surges in demand. [19] Electric utilities have emerged as major promoters of EVs, viewing the technology as a way to gin up substantial demand for electricity and grow revenues. In 2018, for instance, ten utilities sued the Trump administration, opposing plans to make greenhouse gas standards more lenient.[20] In some cases, EVs are also considered from a technical, rather than financial or environmental perspective. Vehicle-to-grid, also known as V2G technology would allow cars to charge during daylight hours, as a way to store electricity generated from renewable sources.[21] Ultimately, batteries provide only limited energy storage capability compared with hydrogen.[22] Electricity alone from batteries or the grid is also ill-suited for applications like aviation or heavy industry. Therefore, a battery-based renewable energy future is unlikely to succeed, leaving hydrogen technology as the only viable alternative to fossil fuels. B. The Advent of the Electrical Grid and Pipelines The electrical grid and natural gas pipelines are both critical pieces of infrastructure for a hydrogen economy, supplying the electricity needed for electrolysis, and potentially transporting gaseous hydrogen—or natural gas feedstock. Energy regulation in the US involves dual-federalism, with the Federal Energy Regulatory Commission overseeing the electrical grid and interstate natural gas pipelines, and state public utility commissions controlling many elements of power production intrastate.[23] The Nuclear Regulatory Commission, for its part, oversees the licensing and monitoring of nuclear power plants.[24] Federal regulation is largely preeminent and in some spheres preempts state energy laws—a state of affairs that has existed since the early 20th century. The Supreme Court pointed the way to federal regulation of electric power in its 1927 Public Utilities Commission v. Attleboro Steam and Electric Co. decision. [25] "It is conceded, rightly, that the sale of electric current by the Narragansett Company to the Attleboro Company is a transaction in interstate commerce, notwithstanding the fact that the current is delivered at the state line. The transmission of electric current from one state to another, like that of gas, is interstate commerce," indicated Justice Sanford, writing for the majority.[26] The case produced the so-called "Attleboro gap," with the Court indicating that the Commerce Clause prevented one state from regulating the rate charged by utility for sales of power to a utility in another state.[27] As a result, states could not directly regulate bulk sales of electricity with other states, and neither could the federal government without enabling legislation under the Commerce Clause.[28] Responding to the gap, the New Deal era Congress enacted the Federal Power Act of 1935, expanding the preexisting 1920 Federal Water Power Act.[29] The proto-Keynesian regulatory bent of the Roosevelt administration promoted the creation of established monopolies and oligopolies to prevent what was viewed as dangerous competition. At virtually the same time as the Federal Power Act broadened the scope of authority granted to the Federal Power Commission, Congress also enacted the Public Utility Holding Company Act of 1935 (PUHCA), mandating that utilities above a certain size register with the Securities and Exchange Commission.[30] After electrical utilities, regulation of natural gas soon followed. Throughout the 1930s, municipalities remained concerned about the monopolization of natural gas. Seeking to forestall common carrier requirements, natural gas companies sought regulation from the federal government, culminating in the passage of the Natural Gas Act of 1938.[31] At the start of World War II, the East Coast remained reliant on coastal transport of oil, or production of natural gas from coal at gasification plants. A total of fifty-five tankers were lost along the coast to Nazi submarines. Even before the U.S. entry into the war, two natural gas companies were trying to expand pipelines into the Southeast, but struggled with the lack of an eminent domain law in Georgia. Exploiting wartime conditions, Congress passed the short-lived Cole Act granting eminent domain powers for pipeline projects between 1941 and 1943.[32] At war's end, the Texas Eastern Transmission Co. tried to repurpose the so-called "Inch Lines" to the Northeast for civilian uses, but faced pushback from state governments with entrenched coal interests. Natural gas had proven integral to powering many factories during the war, and crippling natural gas shortages in 1946 and 1947 spurred 50,000 layoffs when factories shut down. Congress passed eminent domain powers for natural gas pipelines in 1947.[33] Electricity and natural gas had become heavily regulated through the dual-federalism of the federal government and states, but a powerful set of federal laws meant that vertically integrated developers could readily extend electrical transmission lines and natural gas pipelines across state lines. C. Market Deregulation for Electricity and Natural Gas Although energy remains comparatively heavily regulated, contemporary efforts to create a hydrogen economy now take place in a fundamentally different regulatory framework than that which existed between the 1930s and the early 1980s. Following more than twenty years of relative steady state in the electricity and natural gas industries as the American electrical grid and natural gas infrastructure grew extensively, the 1970s brought a change in tenor from federal regulators. The Supreme Court set the stage for deregulation of utilities in its 1973 Otter Tail Power Co. v. U.S. decision.[34] "There is nothing in the legislative history which reveals a purpose to insulate electric power companies from the operation of the antitrust laws," observed Justice Douglas, writing for the Court. [35] Otter Tail, a northern Midwest utility refused to wheel power to municipalities at the cheaper rates offered by the Bureau of Reclamation, but was compelled to by the Court.[36] The Federal Power Commission, renamed during the 1970s as the Federal Energy Regulatory Commission (FERC), took advantage of the 1978 Public Utility Regulatory Policy Act to order wheeling of electricity from small generators. FERC shifted away from price regulation of individual firms, particularly with the advent of independent power generators in the 1980s.[37] Significantly, states were encouraged to shift away from block ratemaking to marginal cost pricing.[38] Local utilities, too, needed to connect to co-generators or small producers, purchasing electricity at "full avoided cost." [39] Big developments followed with the Energy Policy Act of 1992, which granted FERC power to order companies that owned transmission to wheel power wholesale.[40] Between 1996 and 2000, FERC issued three significant orders to prevent monopoly control of transmission lines.[41] The most famous of the three, Order 888, requires electric utilities engaged in interstate commerce to file non-discriminatory tariffs, treating transmission and generating as different even if done by the same company through a process dubbed "functional unbundling." Order 888 was upheld in the courts in 2002, allowing the deregulatory process to carry on.[42] Natural gas regulation underwent a similar significant change over virtually the same time period. In 1985, FERC began encouraging pipeline companies to provide open-access in exchange for easier project approval with Order 436.[43] Order 636 in 1992 made this a requirement.[44] FERC subsequently unbundled pipelines, separating pipelines from the gas production business, and kept only limited jurisdiction to review the price of natural gas sold across state lines.[45] These parallel deregulations culminated in the two energy markets being closely linked, yet electricity and natural gas operated on different schedules.[46] "Thus, when natural gas-fired electricity plants bid into a regional transmission organization (RTO) or Independent System Operation (ISO) auction indicating that they can provide a certain amount of electricity at a certain price, it can be difficult for these generators to properly formulate their bid when they do not know exactly how much gas they will have available to them at a particular price."[47] FERC rectified this with Order 809 in 2015, aligning timetables for both sectors.[48] Deregulation has fundamentally changed the ways that electricity and natural gas are delivered to end customers, but deregulation is not universal within these sectors of the energy industry. In parallel with market deregulation, utilities now contend with Renewable Portfolio Standards, and associated renewable energy credits (REC) introduced by over half of states since the 1990s.[49] A typical approach requires a utility to get RECs for a portion of power generation from renewable sources like solar, wind, hydropower, or biomass; RECs may be coupled with a state clean energy target, and may or may not allow nuclear and natural gas to count.[50] Independent System Operators (ISO) and Regional Transmission Operators (RTO) have faced some challenges incorporating renewables.[51] Renewables, apart from nuclear, natural gas, and biomass, tend to be available independent of demand, thus forcing grid operators to curtail renewable inputs at certain times to sustain the grid.[52] II. FROM LEGAL BARRIERS TO LEGAL SOLUTIONS: ACHIEVING A HYDROGEN ECONOMY Continued innovation in the energy sector may one day yield high-efficiency, rapid recharge batteries that can store massive amounts of energy. At the current level of innovation, batteries are unreliable. Even if future innovations result in greater efficiency, liquid fuel or gas energy storage will likely promise greater storage and portability in the long-run.[53] With present technology, decarbonization of the economy cannot be achieved easily without a switch to hydrogen. In spite of acknowledged drawbacks like the explosiveness of hydrogen and metal embrittlement, a "hydrogen economy" holds greater promise than batteries, with the potential to apply to use cases as divergent as aviation and heavy industry. Therefore, policymakers should strive to support private sector innovation in this area. To achieve a hydrogen transition, careful analysis of existing laws is needed. The most environmentally friendly production of hydrogen would involve nuclear, solar, wind, and geothermal.[54] Among fossil fuel sources, steam reformation of natural gas to produce hydrogen produces the fewest emissions and hydrogen can also be transported within pipelines in a blend, thereby reducing overall emissions where the gas is combusted, much like the inclusion of ethanol in gasoline.[55] Barriers to renewable energy infrastructure commonly include problems with too many decisionmakers, and by extension too much veto power over projects. Nuclear power and wind likely face the greatest public opposition, with far less opposition to solar and geothermal. Nonetheless, even solar and geothermal technologies face some barriers of their own, such as regulatory confusion about whether geothermal resources are a mineral right or a water right, with implications for development. Considering these factors, policymakers need to understand existing legal barriers to nuclear power, solar, wind, geothermal, natural gas distribution systems, and within the electrical transmission industry. Many reforms can be accomplished at the state level, but in rare circumstances surrounding nuclear power and offshore, enhanced federal preemption may be needed to achieve the potential of these technologies. A. Nuclear 1. Barriers to Nuclear Power Fears of nuclear reactor meltdowns and the safety of spent nuclear fuel are key concerns that motivate anti-nuclear sentiment among sections of the general public, as well as state and local governments.[56] Among alternative energy sources, nuclear power is uniquely bound up with administrative law, agency deference, and federal preemption. Nuclear power in the US is a regulated industry under the aegis of the Nuclear Regulatory Commission (NRC).[57] Implementing the National Environmental Policy Act (NEPA), NRC requires Environmental Impact Statements (EIS) as part of a Combined License Application (COL) and publishes permit and work authorization requests in the Federal Register.[58] During the 1960s and 1970s, nuclear power was strongly favored by the federal government.[59] The Price-Anderson Act capped the liability for nuclear accidents at $560 million to encourage development.[60] The Supreme Court and circuit courts drew the bounds of federal preemption in several nuclear energy cases during the 1970s and early 1980s. At the high ebb of nuclear power in 1971, the Eighth Circuit held that federal law fully preempted state regulation over radioactive waste releases.[61] However, ebullience about nuclear power faded in the late 1970s and by the 1980s nuclear power plant construction ground to a halt. This shift can be traced to a variety of events. The nuclear accident at Three Mile Island in 1979 harmed public confidence and resulted in a wave of project cancellations.[62] At the same time, electricity demand began to fall, the newly created Department of Energy signaled changes to reactor design, and the industry faced extensive cost overruns.[63] Additionally, in 1983, the Supreme Court held that states retain traditional responsibilities related to the regulation around electrical utilities such as determining market need, reliability, and costs, effectively allowing states to set high regulatory barriers on the construction of nuclear power plants.[64] Although NRC has exclusive jurisdiction over uranium enrichment facilities, nuclear imports and exports, and sea disposal of nuclear waste, NRC may enter into agreements with state governments about nuclear materials.[65] States may regulate the siting of nuclear facilities on economic rather than safety grounds and may ban uranium mining, because uranium mining is the only part of the nuclear fuel lifecycle not mentioned in the Atomic Energy Act.[66] Even as new nuclear power plant projects stalled after the 1970s, the federal government took steps to promote nuclear energy. This has included Early Site Permits and Standard Design Certifications, fifty-fifty cost sharing arrangements, new tax credits, loan guarantees, and insurance subsidization.[67] Nonetheless, nuclear power plant construction has not recovered, except for a few new reactors licensed in the South in the late 2000s.[68] The prevailing uncertainty brought on by regulatory changes in the early 1980s has chilled the entire nuclear market for decades. 2. Improving the Outlook for Nuclear Power Nuclear power and natural gas are two of the most important elements of redundancy in the electrical grid. If nuclear power is replaced with intermittent wind, solar, and natural gas, greenhouse gas emissions rise—a pattern seen in California, Wisconsin, New England, and Florida after nuclear power plants closed in each location.[69] A strategy to enhance nuclear capacity may be to conduct new first-round operating license applications for modern reactors at the same location as existing plants as in the 2009 licenses issued in Georgia and Tennessee. A study of NGOs organizing against power projects found that only eight percent of antinuclear NGOs organized protests when projects were situated next to existing plants in areas already accustomed to nuclear power plants.[70] Several times throughout recent decades, energy market participants have faced substantial stranded costs and engaged in costly lobbying efforts to recover these costs after the fact.[71] Congress attempted to address high fixed costs and regulatory uncertainty around nuclear power with the Energy Policy Act of 2005, providing a production tax credit for nuclear power plants.[72] However, the tax credit did not apply to applicants filing after 2008 and reduced in value over time.[73] Viewed through a tax policy lens, Congress could adjust this tax credit under § 45J, remove application cut-off deadlines, adjust the credit for inflation, and remove any megawatt limitations.[74] For a time, the Department of Energy maintained its Modified Accelerated Cost Recovery System, allowing renewable projects in service before January 1, 2018 to receive 50% first-year bonus depreciation.[75] Generous depreciation up-front, together with continued Price-Anderson liability caps, and full preemption of states in nuclear power plant approval would all benefit nuclear power as the redundant element in a hydrogen economy. B. Solar 1. Barriers to Solar Solar energy vies with wind as one of the most famous renewable energy sources, and apart from geothermal, might be one of the least controversial. It is also among the most distributed, because photovoltaic (PV) panels can be installed at houses and businesses far more cost effectively than wind or geothermal.[76] In an effort to promote solar, states have passed solar access laws together with other laws aimed at promoting solar energy.[77] Such laws create negative easements, so that neighboring properties cannot block sunlight to a particular property.[78] Most solar permitting is administered at the local level in the US, but this is often accompanied with complex filings and high costs. Some pro-solar city governments have developed over the counter permit purchases or made it illegal to forbid photovoltaic panels in historic districts.[79] Solar has minimal entanglements with environmental law. Some solar components may fall under Resource Conservation and Recovery Act (RCRA) hazardous waste regulations.[80] Solar projects have been inextricably linked with federal investment tax credits, because solar is not always cost-effective without these supports. The industry was concerned about the expiration of credits in 2016, but Congress passed a renewal, and did so again in 2021, forestalling any changes to the present economics of photovaltaics.[81] 2. Improving the Outlook for Solar RCRA concerns are likely too de minimus to merit any regulatory streamlining. There is no clear link between rates of solar growth and tax credit thresholds, which suggests that tax credits are neutral, or even of low relevance to solar projects.[82] As solar becomes more mainstream and competitive in the market, it is probably best to wind down tax credits, although continuing such measures until solar reaches some defined proportion of generation may be appropriate. Solar is inherently cyclical throughout the day and unreliable like no other form of renewable energy, save for wind. However, it differs from wind because it is even more distributed. Solar panels are easy to install on buildings and are cheaper to install on a large scale than wind turbines. As a result, it is a popular choice among homeowners seeking more resilient power. However, homeowners often misconceive of solar panels as a way to operate independent of the grid, but in most cases this is not feasible so long as a house is integrated with the wider grid. Currently, customers with solar panels who are integrated with the grid cannot power their homes during a blackout.[83] Simultaneously, solar adds unreliability into the grid, heightening the risk of power surges or brownouts because sunlight tends to be unpredictable. A resiliency approach in regulation is needed. In jurisdictions with interconnect requirements, this might allow utilities to limit interconnects to only solar customers with "smart" systems capable of responding to changes in grid demand.[84] It might also mean permitting microgrids and developing safeguards. For instance, Arizona regulators have adopted a system of inverters to put waste electricity into the ground during times of oversupply.[85] C. Wind 1. Barriers to Wind Wind is an abundant resource but requires extensive and costly infrastructure to generate large amounts of electricity. Since the 1980s, wind turbines have proliferated both onshore and offshore, as wind technology has become less expensive—and as governments have subsidized the installation of turbines. Offshore waters in the European Union have hosted vast wind farms for over two decades, financed by European governments.[86] Meanwhile, the US offshore wind has lagged behind due to fewer supports and a complicated regulatory landscape. December 12, 2016 marked an important milestone with the inauguration of the Block Island Wind Project off the coast of Rhode Island.[87] Offshore wind developers face significant regulatory and cost hurdles, acquiring offshore continental shelf (OCS) leases through an initial bid or subsequent assignment, securing rights of way for cables offshore and at connection points on the coast, and then installing expensive towers and turbines at sea.[88] Offshore wind projects have bogged down in litigation, most famously Cape Wind in Massachusetts which stalled for nearly two decades in the courts.[89] At the time the project began, there was no federal permitting process for offshore wind, and the developers approached the Army Corps of Engineers for approval.[90] Bureau of Ocean Energy Management (BOEM) received permitting jurisdiction after the passage of the Energy Policy Act of 2005.[91] In spite of approval by the Massachusetts State Energy Siting Facilities Board and support from Obama-era Interior Secretary Ken Salazar, litigation-related delays halted the project and prompted the state's two largest utilities to back out of power purchase contracts.[92] By contrast, Maine provided a streamlined regulatory process as well as a statutory requirement that the Maine Public Utilities Commission acquire 25 MW of offshore power through a competitive power purchase agreement.[93] However, when Republican Larry LePage took over as governor from his Democratic predecessor, he ensured that the Maine legislature reconsidered the statute and issue a new request for proposals—Statoil, the offshore investor, backed out.[94] Offshore wind is even more complicated in the Great Lakes.[95] States like Michigan and Wisconsin have massive wind energy potential, but at the beginning of the 2020s, Ohio's Icebreaker Wind Project was the only major development in the lakes.[96] States control offshore lands in the Great Lakes, but with significant involvement by federal stakeholders. Developers in Michigan offshore lands, for instance, need to contend with both the Michigan Department of Environmental Quality and the Army Corps of Engineers under the Great Lakes Submerged Lands Act.[97] Because of the challenges of leasing offshore lands, some wind energy developers have increasingly turned to the idea of floating platforms.[98] Principle Power, in 2013, launched the first floating wind energy project in the nation in Coos Bay, Oregon, but failed to secure a power purchase agreement needed for Department of Energy financing.[99] Oregon faced unique geographic constraints because most of the state's population is centered in the Willamette Valley, and therefore transmission facilities over the Coast Range are limited.[100] Besides these transmission barriers, one analysis highlighted reasons for lack of offshore wind development in Oregon including: (1) a lower renewable power sourcing target than some Eastern states, (2) a five year, rather than three year REC creating less pressure for developments, (3) ad hoc mandates for utilities to buy power, and (4) need for additional state tax incentives.[101] The Coastal Zone Management Act (CZMA) incorporates a notion of "federal-state collaboration," that allows states with a coastal zone management plan approved by the Department of Commerce to review offshore leasing by BOEM.[102] Although the Department of Commerce can override state complaints, the CZMA introduces another potential avenue to slow down offshore wind projects.[103] Onshore wind has made more headway compared with offshore installations, because it does not face the same challenges with receiving offshore federal permitting, and placing power lines through coastal areas under the protection of the CZMA. However, onshore projects have still faced periodic opposition from environmental groups on Endangered Species Act grounds, due to concerns that spinning turbine blades will harm endemic flying species.[104] In other cases, groups have brought nuisance claims in courts, founded on noise and wind turbines as eyesores.[105] Much like offshore wind, the greatest challenges for onshore wind projects often arise at the state level from siting controls. Under Governor Deval Patrick, Massachusetts coupled the Global Warming Solutions Act of 2008 with the creation of the Advisory Energy Facilities Siting Commission.[106] A consulting report commissioned by the state indicated that challenges remained in the form of a megawatt generating requirement for a project to go through one-stop permitting (below a megawatt of capacity, projects needed to undergo local review), a lengthy appeals process, and options for preemption by local law.[107] By granting expedited permits only to projects with over 100 MW, Massachusetts effectively excluded most onshore wind projects.[108] Large onshore wind projects have faced similar challenges in Virginia. By the ten-year anniversary of its 2006 Energy Plan, Virginia still had only a single installed utility-scale wind power project in Botetourt County.[109] American Indian reservations, particularly those sited in the West have significant wind power potential.[110] Because tribal governments are sovereign within the federal system, they are able to bypass other state and local land use restrictions.[111] However, tribes face a number of barriers related to onshore wind development. Principally, traditional FERC regulation disincentivized the construction of power lines to remote areas like reservations and problems remain with interconnect costs and lack of infrastructure.[112] Additionally, the federal governments control of tribal lands in trust can pose a substantial barrier to development.[113] 2. Improving the Outlook for Wind Together with nuclear power, wind is one of the few cases where additional preemption may be needed. For the most part, onshore wind can and should be the domain of private landholders, local governments, and state public utility commissions. If a state wishes to limit the ease with which wind energy can be setup onshore, that is—for now—its prerogative. Plenty of Great Plains states and Texas have a combination of low population density, high winds, and an accommodating legal structure to supply wind power without Congress wading in to preempt state governments. By contrast, there is a far clearer case for additional preemption of states in the realm of offshore wind. The Cape Wind debacle suggests that there are substantial regulatory hurdles to building offshore wind projects on the continental shelf. Federal preemption might take the form of eminent domain powers for developers, borrowing the concept from the 1947 Natural Gas Act amendment. This may raise entanglements with the CZMA, and therefore policymakers will need to analyze a new offshore wind bill alongside CZMA. Federal and state lawmakers could take additional steps to promote wind development in the Great Lakes. In spite of advocacy by groups like Great Lakes Wind Council and bills introduced in 2010, Part 325 of the Great Lakes Submerged Lands Act still concerns riparian rights and dredging, rather than offshore wind development.[114] Policymakers must consider the fact that offshore wind is still a new technology, with little regulatory or development track record. Preemption may need to be a part of the toolkit, but perhaps the "not in my backyard" residents of Massachusetts are atypical. Offshore wind, particularly beyond the horizon and situated near less developed stretches of coastline may prove more straightforward. In lieu of preemption, FERC and Bureau of Ocean Energy Management regulators may be able to achieve the same results through a better means of coordinating state and federal permitting. D. Geothermal 1. Barriers to Geothermal Geothermal energy is a promising renewable technology, but one which has attracted less attention from regulators than others. The US Geological Survey estimates that with current technology, the US has over 558,000 megawatts of geothermal potential.[115] Geothermal energy is produced by extracting hot deep groundwater or injecting surface water to a depth in the ground where it will be heated to produce steam. American geothermal resources are most promising in the seismically active Western states, but many of the same states suffer from water shortages.[116] An overlap of water laws and geothermal laws can sometimes create confusion. For instance, the Ninth Circuit in 1977 concluded that based upon the legislative history of the Stock-Raising Homestead Act, geothermal resources are essentially a mineral right and not a water right.[117] In states where geothermal resources are a mineral right, developers need to get a geothermal lease or permit that confers separate rights than the control of the surface land or surface water.[118] Additionally, treating geothermal resources as mineral rights may mean that developers incur other responsibilities to prevent "waste" that might damage neighboring rights holders, or obligations similar to oil and gas wells to avoid drilling too many wells and cap abandoned wells.[119] The California Court of Appeals reached the same conclusion as the Ninth Circuit three years later in 1980, holding that deep geothermal resources constitute a type of mineral right.[120] By 2010, Nevada and Arizona distinguished geothermal water from other types of water use.[121] States like California centralize approvals for oil, gas, and geothermal projects under one agency: the California Department of Oil, Gas, and Geothermal Resources.[122] However, other states divide jurisdiction, as with Utah's division between Division of Water Rights and Board of Oil, Gas, and Mining.[123] The geology of subsurface geothermal resources is often complicated, creating potential conflicts with oil and gas leases.[124] It is technologically feasible to reuse some oil and gas wells for geothermal projects. However, state laws which govern petroleum extraction projects remain unclear on several key questions: (1) whether it would constitute waste for a lessee to comingle hydrocarbon and geothermal production, (2) whether geothermal lessees could pool into abandoned wells, and (3) whether geothermal production would damage a hydrocarbon reservoir in a way that might constitute waste.[125] In addition to varying conceptions of geothermal resources, geothermal projects must meet NEPA and state environmental protection criteria, overcome modest risks of induced seismicity (earthquakes produced by lubricating small faults with water), and occasionally National Historic Preservation Act controls.[126] 2. Improving the Outlook for Geothermal Federal and state lawmakers should clarify the status of geothermal fluids. Water injected at the surface from surface waters or near-surface groundwater would likely fall under existing water rights law. However, deep, briny fluids recovered from oil and gas projects and reinjected—or used in situ—would likely best be categorized as a mineral right. This type of distinction would prevent the misuse of scarce surface water and shallow groundwater throughout the American West. Furthermore, adopting a legal interpretation of geothermal heat (and deep hydrothermal fluids) as mineral rights would create a legal regime where geothermal developers would be more careful to avoid waste that would harm neighboring wells, thereby improving the efficiency with which these resources are used. NEPA and state equivalents create unnecessary regulatory burdens. The Bureau of Land Management signaled a commitment to regulatory streamlining in 2018, waiving the NEPA Environmental Assessment and Environmental Impact Statement requirement for oil, gas and geothermal projects.[127] E. Natural Gas & Pipeline Development 1. Barriers to Natural Gas & Pipeline Development Compared with many renewable energy sources, natural gas development faces few regulatory barriers due to a long history of federal preemption, that allows private developers to use eminent domain powers to construct pipelines. Although natural gas is non-renewable, natural gas pipeline infrastructure is relevant to a hydrogen economy because of its potential to provide feedstock for higher emission, but lower cost hydrogen, and because pipelines could be used to transport blends of hydrogen and natural gas to supply power plants, home heating, and heavy industry. Prior to its mooting during the Trump administration, the Obama administration's Clean Power Plan called for states to use natural gas-fired power plants as a bridge fuel to more renewable sources.[128] Yet in spite of such encouragements and spate of deregulations since the 1990s, natural gas still faces hurdles at the state level. [129] Even with clean energy goals, regions like New England continue to import natural gas by ship rather than by pipelines from nearby onshore sources in Pennsylvania.[130] The Natural Gas Act of 1938 (NGA) grants FERC considerable power over natural gas infrastructure, but the Energy Policy Act of 2005 contains a savings clause which means that states rights are not fully preempted under the Coastal Zone Management Act, Clean Water Act, and Clean Air Act.[131] Because federal law rather than state law usually governs, natural gas pipeline companies have been able to rapidly grow infrastructure between the 1950s and 1980s, and again during the recent shale gas boom, receiving approval, building, and putting into operation pipelines within little more than a year.[132] Nonetheless, environmental advocates are increasingly pressuring state and local governments to oppose pipeline projects, as evidenced by the opposition to Keystone XL and Dakota Access pipelines.[133] FERC is hard to influence with its more expansive control over interstate natural gas pipelines, but faces increased pressure to reject or modify natural gas pipeline projects in some states.[134] The Supreme Court weakened some of NGA's preemption in 2016, signaling that states may have more involvement in natural gas regulation in the future.[135] 2. Improving the Outlook for Natural Gas & Pipelines A new Congressional Energy Policy Act could clarify and tighten FERC control over interstate natural gas pipeline projects, eliminating—or reducing the scope—of the savings clause. Klass and Rossi describe the savings clause approach to state environmental concerns as "costly and inefficient" because (1) FERC does not have a regular forum for state regulator input, and (2) the timing of the certificate process invites challengers.[136] New York was able to reject the Constitution Pipeline through recourse to federal environmental law, in-spite of prior approval by FERC.[137] It is important for Congress to keep eminent domain powers, and indeed clarify in a revised statute that these powers extend to dual-use natural gas and hydrogen pipelines, or pipelines transporting exclusively hydrogen. F. Legal Challenges with Transmission: Imported Power, Net Metering, Long-Distance Lines, and Feed-In Tariffs 1. Electricity Imports: Policy Improvements Electricity production remains largely a domestic industry, but the US has increased its imports from Canada and Mexico in recent decades. Electricity generated by large provincially controlled hydroelectric dams in Quebec, Ontario, Manitoba, and Newfoundland and Labrador is exported to New England, New York, and the Midwest, while the Canadian province of British Columbia imports electricity from the Pacific Northwest. Canada and the US had 60 electrical power linkages by 2015, consuming ten percent of all electricity produced in Canada, although only 1.6 percent of US retail sales.[138] By contrast to its connections with the Canadian grid, the US has few interconnects with Mexico. The passage of the Electricity Public Service Act in 1992 by the Mexican federal government opened the door to expanded electricity sales, prompting some US utilities to build power plants in northern Mexico adjacent to Southern California. Exports from Mexico account for less than one hundredth of a percent of US electricity demand, centered on a few border regions like Southern California, El Paso, and South Texas.[139] The dimensions of foreign electricity imports are narrow, but significant in the case of Canada for populous regions in the American Northeast, raising potential questions around the Foreign Sovereign Immunities Act of 1976.[140] Foreign state-owned enterprises have occasionally invoked sovereign immunity in an effort to avoid liability.[141] However, the Supreme Court has not clarified whether there is a distinction between national government owned state-owned enterprises, and those owned by sub-national authorities like the Canadian provinces. So far, power imports from North American neighbors has not generated much litigation or FSIA questions. In 2006, the Supreme Court did issue an opinion related to FSIA in context of a suit by the State of California against a British Columbian power producer. [142] Current models across solar, geothermal, wind, and natural gas commonly promoted renewable energy-sourced electricity through state mandates.[143] While the goal of reducing carbon emissions is a noble one, mandates smack of market interference and have the potential to create market distortions. Particularly in the Northeast, mandates might create a dangerous reliance on energy imported from Canadian state-owned provincial electrical utilities. State governments should develop comprehensive renewable energy plans that encompass nuclear and natural gas to maintain grid reliability. State emissions targets are appropriate if accompanied by RECs and tax credits, rather than mandates and power purchase requirements. State investments in training, research and development, or upgrades to port facilities to support offshore wind all merit consideration.[144] Canada is the only foreign electricity market that US policymakers need to give real consideration to in long-term market planning. Because Canada has a similar legal system and a long-standing history of friendliness with the US, any electricity import issues could likely be solved through Canadian courts, US courts, binding arbitration, or diplomatic channels. Nonetheless, so long as any ambiguity exists surrounding FSIA, it would be sensible to craft a treaty with Ottawa guaranteeing a level footing for American customers purchasing from Canadian provincially-owned generators. 2. Net Metering By the mid-2010s, over forty states had adopted some form of net metering, a scheme wherein customers with solar panels (and occasionally other renewable energy sources like geothermal and wind) sell surplus electricity back to utilities in exchange for credits to their electrical bill.[145] Net metering is an unusual system, because utilities pay customers for what competitors provide.[146] Net metering policies vary widely between states. Developed through the Public Utility Regulatory Act, it is up to states to choose to offer net metering.[147] Some states exempt small, municipal, or low environmental impact utilities from paying out net metering disbursements to customers.[148] Utilities are increasingly challenging net metering in state public utility commissions.[149] The Arizona Corporation Commission, for instance, allowed up to five dollars a month in charges for energy sold to the utility and credited toward a solar owner's account, whereas the Utah Public Service Commission rejected such a proposal.[150] Net metering is a regulatory riddle, and responses have encouraged it on resiliency grounds or rejected it as a form of unfair competition, subsidizing some ratepayers at the expense of others.[151] However, anticompetitive concerns are modest compared with the technical and market challenges that solar poses. As a result, the debate over net metering is one to be settled at the state level. 3. Feed-In Tariffs Feed-in tariffs (FIT) are an element of state public policy copied from the European energy market.[152] Renewable power generators are guaranteed access to the grid and local electrical utilities are required to buy electricity above market rates—in contrast to market-rates common with RECs.[153] A FIT sets the price to be paid for renewable energy, how long that price will last for, and mandates that utilities must purchase this power.[154] Several states faced Commerce Clause challenges to FITs.[155] However, in 2010, FERC indicated that FITs are not preempted by the Federal Power Act.[156] Much like net metering, FITs are perhaps best determined at the state level. Over the long-term, as renewable energy sources become more economical, state public utility commissions should phase out feed-in tariffs to reduce costs to end consumers and standardize on market-based policies. 4. Long-Distance Transmission Lines As in the context of natural gas, a new Congressional Energy Policy Act could eliminate the states rights savings clause, retaining only a limited vestige for comment by citizens and state siting commissions. Klass and Rossi recognize the need to overcome growing state siting committee and eminent domain hurdles, particularly with a need to transmit electricity from resource-rich areas—like the Midwest wind or Southwest solar—to where the energy is consumed.[157] "[E]xperts contend that more interstate, regional transmission planning and construction is not only more cost-effective, but is necessary in light of the aging grid. . .the need for increased reliance on renewable energy resources. . .and the fact that transmission projects require as long as a decade to plan and construct."[158] FERC approval of the Plains & Eastern Line over the objection of state regulators is an example of this model in action, but without accounting for state and local concerns projects are bound to bog down in litigation and public opposition.[159] Klass and Rossi propose the Great Northern Transmission line project from Manitoba into Minnesota as a well-rounded success story, wherein the developer conducted seventy-five public information workshops beginning before it filed its application.[160] The Great Northern model can be likened to Rhode Island's aforementioned offshore permitting experience. While tightening its control over siting, FERC could require something like this holistic outreach process to stakeholders prior to and during the permitting process. III. CONCLUSION The US has a once in a century opportunity to transform its energy system through regulatory streamlining. Policymakers must continue to examine ways to improve energy storage, whether through advanced battery technology, pumped storage, or hydrogen fuel cells—but existing barriers with these technologies mean that hydrogen is likely to be more viable than batteries across transportation, industry, and electrical power use cases. Nuclear and offshore wind face an unclear overlap of responsibilities between the federal government and states, which should be clarified to avoid lengthy litigation and problems with the CZMA. Federal preemption may be appropriate in the case of the two foregoing energy technologies, and may also be appropriate in the case of long-distance transmission lines and natural gas pipelines (particularly extended to dual-use natural gas and hydrogen pipelines). By contrast, most other renewable technologies are best regulated at the local level. States are adapting well to promote solar technology, but still present legal confusion with geothermal and impose some barriers on onshore wind. Policymakers must also consider the role of net metering, feed-in tariffs, depreciation schedules, and tax credits, applying comprehensive economic analysis to determine the best approach. By reducing barriers to renewable energy and more traditional sources of redundancy like nuclear energy and natural gas, America can transition to a low-emission hydrogen economy. [1] William Vincent, Hydrogen and Tort Law: Liability Concerns Are Not a Bar to Hydrogen Economy, 25 Energy L.J. 385, 387 (2004). [2] Energy Futures Initiative, The Future of Clean Hydrogen in the United States: Views from Industry, Market Innovators, and Investors 14 (2021) (hereinafter EFI); [3] Transitioning toward the hydrogen economy and its potential impacts, 2 L. of Envtl. Prot. § 12:163 (2021). [4] Id. [5] Steven Ferrey, § 2:20. Fuels—Hydrogen fuel, 1 L. of Indep. Power § 2:20 (2021). [6] EFI, supra, note 2, at 13, 14. [7] See Id. [8] EFI, supra, note 2, at 13. [9] See generally Energy Information Administration, Utility-scale batteries and pumped storage return about 80% of the electricity they store (2021). [10] Id. [11] EFI, supra, note 2, at 13-14. [12] Steven Ferrey, § 2:20. Fuels—Hydrogen fuel, 1 L. of Indep. Power § 2:20 (2021). [13] EFI, supra, note 2, at 12. [14] Vincent, supra, note 24, at 385-86. [15] Vincent, supra, note 24, at 390-91 (noting that "Hydrogen burns quickly and emits only one-tenth the radiant heat of a hydrocarbon fire, reducing the risk of burn injury and other damage. . . Contrary to popular opinion, it is difficult to cause a mixture of air and hydrogen to explode.") [16] Vincent, supra, note 24, at 393-99; Calif. Proposed Clean Car Regulations Require Building of Hydrogen Stations, 24 No. 4 Underground Storage Tank Guide Newsl. 1 (2012). [17] Alex Brown, Electric Cars Will Challenge State Power Grids, Pew, (Jan. 9, 2020), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/01/09/electric-cars-will-challenge-state-power-grids. [18] Id. [19] Id. [20] Klass, supra, note 6, at 570-71. [21] Brown, supra, note 11. [22] Michael Ball & Martin Wietschel, The Hydrogen Economy: Opportunities and Challenges 38 (2009); see also Tugce Yuksel & Jeremy J. Michalek, Effects of Regional Temperature on Electric Vehicle Efficiency, Range, and Emissions in the United States, 49 Environ. Sci. Technol. 3974−80 (2015), https://www.cmu.edu/me/ddl/publications/2015-EST-Yuksel-Michalek-EV-Weather.pdf (finding that “annual energy consumption of [battery-powered vehicles] can increase by an average of 15% in the Upper Midwest or in the Southwest compared to the Pacific Coast due to temperature differences”). [23] Amy L. Stein, Regulating Reliability, 54 Hous. L. Rev. 1191, 1193 (2017). [24] Taylor Burke, Nuclear Energy and Proliferation: Problems, Observations and Proposals, 12 B.U. J. Sci. & Tech. L. 1, 4-5 (2006). [25] Public Utilities Commission v. Attleboro Steam and Electric Co., 273 U.S. 83 (1927). [26] Id. at 86. [27] Jeffery S. Dennis, Division of Policy Development Federal Energy Regulatory Commission, Introduction to Electric Power Regulation and Electricity Markets 6 (2015). [28] Alexandra B. Klass & Hannah J. Wiseman, Energy Law 199 (2d. ed. 2020). [29] 16 U.S.C. § 824(b) (1935) [30] 15 U.S.C. § 79d (repealed 2005). [31] Alexandra B. Klass & Danielle Meinhardt, Transporting Oil & Gas: U.S. Infrastructure Challenges, 100 Iowa L. Rev. 947, 994-95 (2015). [32] Klass, supra, note 6, at 963. [33] Klass, supra, note 6, at 963; see also Natural Gas Act Amendment of 1947, Pub. L. No. 80-245, 61 Stat. 459. [34] Otter Tail Power Co. v. U.S., 410 U.S. 366, 373-74 (1973). [35] Id. at 373-74. [36] Id. at 381; U.S. Energy Information Administration, Glossary, https://www.eia.gov/tools/glossary/index.php?id=W (defining wheeling as: " The movement of electricity from one system to another over transmission facilities of interconnecting systems. Wheeling service contracts can be established between two or more systems.") [37] Joel B. Eisen, Regulatory Linearity, Commerce Clause Brinksmanship, and Retrenchment in Electric Utility Deregulation, 40 Wake Forest L. Rev. 545, 549 (2005). [38] FERC v. Mississippi, 456 U.S. 742 (1982). [39] American Paper Inst., Inc. v. American Elec. Power Serv. Corp., 461 U.S. 402 (1983). [40] 15 U.S.C. § 79z-5b. [41] See Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, 18 C.F.R. pts. 35, 385 (1996); Open-Access Same-Time Information System (Formerly Real-Time Information Networks) and Standards of Conduct, Order No. 889, 18 C.F.R. pt. 37 (1996); Regional Transmission Organizations, Order No. 2000, 18 C.F.R. pt. 35 (2000). [CHECK Pts.] [42] New York v. FERC, 535 U.S. 1 (2002) (holding that FERC did not exceed its jurisdiction by asserting jurisdiction over unbundled retail transmissions based on the plain language of the Federal Power Act. Order No. 888 ordered "functional unbundling" such that wholesale generators would make purchases under a general tariff applicable to themselves as well as competitors. Additionally, the Order created open access requirements for unbundled retail transmissions in interstate commerce.) [43] 1982–85 FERC ¶ 30,665 (1985). [44] 59 FERC ¶ 61,030 (1992) . [45] Klass & Wiseman, supra, note 3, at 213. [46] Klass & Wiseman, supra, note 3, at 214. [47] Klass & Wiseman, supra, note 5, at 214. [48] 151 FERC ¶ 61,049 (Apr. 16, 2015). [49] Tade Oyewunmi, An Instrumental Perspective on Power-to-Gas, Hydrogen, and a Spotlight on New York's Emerging Climate and Energy Policy, 38 Pace Envtl. L. Rev. 221, 230 (2021). [50] Oyewunmi, supra, note 32, at 230-31. [51] Oyewunmi, supra, note 32, at 236. [52] Oyewunmi, supra, note 32, at 236-37. [53] See Ball & Wietschel supra, note 40, at 623. [54] Ball & Wietschel supra, note 40, at 628. [55] Id. [56] See Justin Rowlatt, Nuclear power: Are we too anxious about the risks of radiation?, BBC, Sept. 27, 2020. [57] Kelsey E. Gagnon, Atomic Energy and Offshore Wind: The Struggle to Fight Climate Change and the Cost to be Clean, 26 Ocean & Coastal L.J. 25, 33 (2021). [58] Gagnon supra, note 45, at 34-35. [59] Gagnon, supra, note 45, at 41-42. [60] Id. [61] Northern States Power Co. v. State of Minn., 447 F.2d 1143, 1143-45 (8th Cir. 1971). [62] Michael E. Stern & Margaret E. Stern, 32 Utah Envtl. L. Rev. 431, 432 (2012). Explaining that 100 large nuclear facilities were cancelled in the US. [63] Stern & Stern, supra, note 48, at 435. [64] PG&E v. State Energy Comm'n, 461 U.S. 190, 212-14 (1983). [65] 42 U.S.C. § 2021(b). [66] PG&E v. State Energy Comm'n, 461 U.S. 190, 223 (1983); Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1902 (2019). [67] Gagnon, supra, note 45, at 43. [68] David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L.R. 327, 362. [69] Daniel A. Repka & Tyson R. Smith, Deep Decarbonization and Nuclear Energy, 48 Envtl. L. Rep. News & Analysis 10244, 10245 (2018). [70] David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L.R. 327, 362. [71] Emily Hammond & Jim Rossi, Stranded Costs and Grid Decarbonization, 82 Brook. L. Rev. 645, 684-85 (2017). [72] Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 § 1306. [73] Maxwell S. Bayman, Subsidizing Advanced Nuclear Energy, 9 Okla. J. L. & Tech. 62, 97, 99 (2013). [74] Bayman, supra, note 126. [75] Hammond & Rossi, supra, note 124, at 682. [76] See generally Office of Energy Efficiency & Renewable Energy, Solar Integration: Distributed Energy Resources and Microgrids (2021). [77] Holly Duke, Encouraging Rooftop Solar: What Policy is Right for Kentucky?, 47 N. Ky. L. Rev. 155, 158 (2020). [78]Kyle Weismantle, Building a Better Solar Energy Framework, 26 St. Thomas L. Rev. 221, 237-38 (2014). [79] Weismantle, supra, note 45, at 245. [80] Wildermuth, supra, note 32, at 532-33. [81] Federal Solar Income Tax Credit Gets 5-Year Extension, A&R Solar (Dec. 21, 2016), https://www.a-rsolar.com/news/federal-solar-income-tax-credit-gets-5-year-extension/; Gail Suchman et al., Congress Extends Renewable Energy Tax Credits In 2021 Omnibus Spending Bill, Mondaq (March 26, 2021), https://www.mondaq.com/unitedstates/renewables/1051482/congress-extends-renewable-energy-tax-credits-in-2021-omnibus-spending-bill-. [82] See Palumbo, supra, note 31, at 200-201. [83] Payne, supra, note 113, at 135. [84] Payne, supra, note 113, at 179. [85] Payne, supra, note 33, at 179. [86] See Joseph B. Nelson & David P. Yaffe, The Emergence of Commercial Scale Offshore Wind: Progress Made and Challenges Ahead, 10 San Diego J. Climate & Energy L. 25, 27 (2019). [87] Nelson & Yaffe, supra, note 33, at 27. [88] Nelson & Yaffe, supra, note 33, at 28-29. [89] Lawrence Susskind & Ryan Cook, The Cost of Contentiousness: A Status Report on Offshore Wind in the Eastern United States, 33 Va. Envtl. L.J. 204, (2015). [90] Susskind & Cook, supra, note 66, at 219. [91] Id. [92] Susskind & Cook, supra, note 66, at 220-21. [93] Susskind & Cook, supra, note 66, at 226. [94] Susskind & Cook, supra, note 66, at 226-27. [95] Ashlyn N. Mausolf, Clearing the Regulatory Hurdles and Promoting Offshore Wind Development in Michigan, 89 U. Det. Mercy L. Rev. 223, (2012). [96] Taylor Haelterman, Michigan has most potential for offshore power generation, Grand Rapids Business Journal (Jul. 23, 2021), https://grbj.com/news/energy/michigan-has-most-potential-for-offshore-power-generation/. [97] Mausolf, supra, note 74, at 237. [98] Andy Su, Establishing Floating Offshore Wind Development in Oregon: Lessons from East Coast State Policy Tools Promoting Offshore Wind, 38 UCLA J. Envtl. L. & Pol'y 277, 280 (2020). [99] Su, supra, note 75, at 281. [100] Su, supra, note 75, at 285. [101] Su, supra, note 75, at 306-07. [102]Sam Kalen, Cruise Control and Speed Bumps: Energy Policy and Its Limits for Outer Continental Shelf Leasing, 7 Envt'l & Energy L. & Pol'y J. 155, 169-171 (2012). [103]Id. [104] Amy J. Wildermuth, Is Environmental Law a Barrier to Emerging Alternative Energy Sources, 46 Idaho L. Rev. 509, 534 (2010); see also Animal Welfare Inst. v. Beech Ridge Energy LLC, No. RWT 09CV1519, 2009 WL 4884520, at *6 (D. Md. Dec. 8, 2009) (environmentalists challenged wind project claiming it would "take" endangered bats in violation of the Endangered Species Act). [105] Wildermuth, supra, note 79, at 535. [106] Alexandra J. Zaltman, Obstructions and Opportunities in the Complex World of Massachusetts Onshore Wind Power Development, 13 J. High Tech. L. 215 (2012). [NO INTERNAL PAGE NUMBERS] [107] Zaltman, supra, note 81; see also TRC Solutions, Renewable Energy Siting Study, Env. 09 Pol. 05, (2009). [108] Zaltman, supra, note 81. [109] Mark L. (Buzz) Belleville, The Wind Blows in Virginia Too—Deconstructing Legal and Regulatory Barriers to the Development of Onshore, Utility-Scale Wind Energy in Virginia, 41 Wm. & Mary Envtl. L. & Pol'y Rev. 151, 152-53 (2016). [110] Crystal Masterson, Wind-Energy Ventures in Indian Country: Fashioning a Functional Paradigm, 34 Am. Indian L. Rev. 317, 317 (2010). [111] Masterson, supra, note 51, at 328-29. Tribes may also take advantage of 26 U.S.C. § 45A, which grants twenty percent tax breaks on wages and health insurance paid to qualified tribal members. [112] Masterson, supra, note 51, at 333. [113] Masterson, supra, note 51, at 337. [114] See Great Lakes Submerged Lands Permit, Michigan State License Search (Dec. 2019), https://www.michigan.gov/statelicensesearch/0,4671,7-180-24786-244636--,00.html. [115]Geothermal Energy, Energy Resources Program, US Geological Survey (2021), https://www.usgs.gov/energy-and-minerals/energy-resources-program/science/geothermal?qt-science_center_objects=0#qt-science_center_objects (explaining that 518,00 Mwe would likely come from enhanced geothermal, involving injection of fluids). [116] Kathleen Callison, Water and Geothermal Development in the Western U.S.: Real World Challenges, Regulatory Conflicts and Other Barriers, and Potential Solutions, 22 Pac. McGeorge Global Bus. & Dev. L.J. 301, 311-12 (2010); Geothermal Energy Technology Brief 15 (2017), https://www.irena.org/-/media/Files/IRENA/Agency/Publication/2017/Aug/IRENA_Geothermal_Power_2017.pdf (explaining that some geothermal projects may involve “enhanced” injection of surface water to be heated at depth or to create fissures for additional geothermal energy production). [117] U.S. v. Union Oil Co. of California, 549 F.2d 1271, 1279 (9th Cir. 1977). [118]Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [119]Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [120] Geothermal Kinetics, Inc. v. Union Oil Co., 75 Cal.App.3d 56, 58 (Ct. App. 1980). [121] Callison, supra, note 47, at 311-12. [122] Kurt E. Seel, Legal Barriers to Geothermal Development, 3 Rocky Mtn. Min. L. Inst. 1, 13 (2009). [123] Seel, supra, note 93, at 3. [124] Seel, supra, note 93, at 4. [125] Seel, supra, note 93, at 3. [126] Seel, supra, note 93, at 5. [127] Bureau of Land Management, NEPA Efficiencies for Oil and Gas Development (Jun.6, 2018), https://www.blm.gov/policy/ib-2018-061. [128] Lincoln L. Davis & Victoria Luman, The Role of Natural Gas in the Clean Power Plan, 49 J. Marshall L. Rev. 325, 326 (2015). [129] Alexandra B. Klass & Jim Rossi, Reconstituting the Federalism Battle in Energy Transportation, 41 Harv. Envtl. L. Rev. 423, 425 (2017). [130] Klass & Rossi, supra, note 99, at 427. [131] 15 U.S.C. § 717b(d). [132] Klass & Rossi, supra, note 99, at 433-34. [133] Klass & Rossi, supra, note 93, at 435; Keystone XL and Dakota Access were both envisioned for oil transportation, but opposition is found against both oil and natural gas pipelines. [134] Id. [135] See ONEOK, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1594 (2015) [136] Klass & Rossi, supra, note 48, at 480. [137] Klass & Rossi, supra, note 48, at 479. [138] U.S. Energy Information Agency, U.S.-Canada electricity trade increases (2015). [139] U.S. Energy Information Agency, Mexico Week: U.S.-Mexico electricity trade is small, with tight regional focus (2013). [140] H.R. Rep. No. 94-1487, at 6 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6604. [141] Glob. Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co., 807 F.3d 806 (6th Cir. 2015). [142]Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2006). [143] See Su, supra, note 57, at 305. [144] Su, supra, note 57, at 306-7. [145] Brian Palumbo, Looking in the Side-View Mirror: Assessing the Current and Future State of the Solar Energy Industry as it Reaches the Mainstream, 41 Colum. J. Envtl. L. 183, (2016). [146] Palumbo, supra, note 111, at 211. [147] Heather Payne, A Tale of Two Solar Installations: How Electricity Regulations Impact Distributed Generation, 38 U. Haw. L. Rev. 135, 143 (2016). [148] Payne, supra, note 113, at 145. [149] Palumbo, supra, note 113, at 197-98. [150] Palumbo, supra, note 113, at 198. [151] Harvey L. Reiter & William Greene, The Case for Reforming Net Metering Compensation: Why Regulators and Courts Should Reject the Public Policy and Antitrust Arguments for Preserving the Status Quo, 37 Energy L.J. 373, 373 (2016). [152] Felix Mormann, Constitutional Challenges and Regulatory Opportunities for State Climate Policy Innovation, 41 Harv. Envtl. L. Rev. 189, 199-200 (2017). [153] Id. [154] Lincoln L. Davies, Reconciling Renewable Portfolio Standards and Feed-In Tariffs, 32 Utah Envtl. L. Rev. 311, 324 (2012). [155] Mormann, supra, note 117, at 193. [156] Cal. Pub. Utils. Comm'n., 133 FERC ¶ 61,059 (Oct. 20, 2010). [HOW TO PROPERLY CITE?] [157] Klass & Rossi, supra, note 99, at 443-44. [158] Id. [159] Klass & Rossi, supra, note 99, at 424-25. [160] Klass & Rossi, supra, note 99, at 477. Copyright © 2022