CULR Spring 2022

ARTICLES

Lyndsey Reeve Disability: From 1990 to Now Marco Uustal

Pap’s Court

Sarah Chan

Anya Howko-Johnson

Andrew Zach Brown Died:AnAutopsy into the Causes of Modern Segregation Theodore Grayer

Editors-in-Chief

Claire Choi Katy Brennan

Executive Editors, Print Publisher

Anushka Thorat

Lead Editors Isabel Coberly

Virginia Lo Kate Strong Kiran Dzur Lorelei Loraine

Editorial Staff Cassandra Cordie Dongjae Min

Irie Sentner Ali Alomari

Masa Al Azm Ben Erdmann

April Wang Yasmin Naji

Meghan Lannon Kendall Psaila Yu Fang Melissa Yu

2022 issue of the Columbia Undergraduate Law Review’s print journal. We familiar legal problems.

In “Failures in Baghuz and Kabul: Distortions of the Law of Armed built by Toyota v Williams, Sutton v United Airlines

Pap’s

Young v American Mini Theatres, City of Renton v Playtime Theatres, Barnes v Glen Theatre, and City of Erie v Pap’s O’Brien and TPM tests.

Brown Died: An Autopsy into the Brown v Board of Education. Grayer argues that it is time to look beyond Brown

LETTER FROM THE EXECUTIVE EDITOR

Columbia Undergraduate Law Review

undergraduates. We hope that you enjoy reading our print journal.

MISSION STATEMENT

The goal of the Columbia Undergraduate Law Review ideas in writing.

substitute for quality.

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TABLE OF CONTENTS

Failures in Baghuz and Kabul: Distortions of the Law ofArmed 7

Lyndsey Reeve 39 Marco Uustal Pap’s

ProtectedSpeech 60 Sarah Chan 87

Anya Howko-Johnson 113

Andrew Zach Brown Died:AnAutopsy into the Causes of Modern Segregation 150 Theodore Grayer

Failures in Baghuz and Kabul: Distortions Counterterror Operations

Edited by Kate Strong, Gabriel Fernandez, , Abstract

1 post

bellum

I.Violations of the LOAC Proportionality, Distinction, and Precautionary Measures in Baghuz

2 3 4 5 was in bello engagement.

international norms who threaten large populations in pursuit of ,9,10

11 It is unlawful to operate offensively. While the 12 states to prepare for an imminent 13

Troops are always targetable and both the International

are too. They argue, “the rest between hostilities is nothing other 14

The few ISIS members targeted in Baghuz were most likely engaging in one of these rest troops.15 in Baghuz, barely distinguishable on the drone footage and not

This tenet does not require nations to opt for the least invasive post facto 9 before the attack

New York Times, earlier

operation. civilians

self-defense.19 collateral damage 20

the proportionality test. pursuing that pose an imminent threat.24 distinguish between lawful and unlawful targets but they made The New York Times 25 While the general target area was a potential site of future operations, it calculated designed

against humanity.

Troops are responsible for The New York Times minutes before the strike, troops in the sky noted “women, 29 30 early steps were not adequately pursued.31 32 they allegedly “[added] details that would legally justify a strike, 33 34

to uphold the rule of law before the strike. On Terror” , 39 response.40,41,42 raise funding for armies,43 the president to “notify Congress within forty-eight hours of

45 for drone strikes area, Finkelstein asserts, “there will be erosion of legal norms in

III.Analysis, Transparency and Accountability in the Baghuz Strike post bellum 49 The testimonies of

required to disobey unlawful orders, bound by their

lawfare 53 If U.S. leaders violate the rule so explicitly, what will stop authoritarian countries from following suit? Will employed by our non-state adversaries? follow suit.

IV.Crisis in Kabul: Continued Distortions of the Law of War in U.S. Drone Strikes

55 In reality, Ahmadi family. Although the humanitarian supplies for weaponry and military equipment 59 before the strike operation. For these reasons, the drone strike on Kabul passed the

pre-strike analysis. needing lengthy repairs, and the anguish felt by families of the no active This designation seems to apply to

no immediate threat.

V.Combatants vs. Noncombatants in an Asymmetric World of and bellum in bello , ad bellum nor in bello, the strike

. and Panetta v Al Aulaqi, threat.

signed by President George W. Bush in the immediate aftermath

Signed during a period of anguish and trepidation in the ranging operations independent of global human rights law. gathering due to the low threshold of proof needed before military operation

VII.Conclusion

and Recommendations for the Biden Administration

Texas International Law Journal, 222, 222

The Continued Evolution the U.S. Military American Academy of Arts and Sciences

Vanderbilt Journal of Transnational Law

The Continued Evolution

Ibid.

Analysis in ISIS Affected Communities of Iraq

The Continued Evolution,

The Continued Evolution, . The Continued Evolution,

Pepperdine Law Review

The Continued Evolution,

Commander in Chief Clause

War Powers Resolution of 1973,

, Just Security

Work, NPR , 45 Finkelstein, Fighting State and Nonstate Actors Ibid, 5. Ibid. 49 National implementation of IHL - directive no. 2311.01E on 50 51 Ibid. 52 Claire Finkelstein and Stephen N. Xenakis, Repairing Accountability for Torture, Interrogation and Torture: Integrating 53 Lawfare: Both an Existential Threat to the International Rule of Law and an Indispensable Tool of American Foreign Policy in the Twenty-First Century, Penn threat-to-the-international-rule-of-law-and-an-indispensable-tool54

The Washington Post

The New York Times

Ibid. The New York Times 59 The Continued Evolution

Ibid. Walzer, Walzer, Social Philosophy and Policy, no. 2, Vanderbilt Journal of Transnational Law Panetta v. Al Aulaqi, .

Tess Bridgeman, “

Just Security

Effect

American Academy of Arts and Sciences

The Continued Implications for the U.S. Military

Claire

Vanderbilt Journal of Transnational Law Social Philosophy and Policy, Vanderbilt Journal of Transnational Law

Finkelstein and Stephen N. Xenakis, Repairing the

Accountability for Torture, Interrogation and Torture:

The New York Times pdf.

The New York Times

Pepperdine Law Review .

in ISIS Affected Communities of Iraq

The New York Times

Lawfare: Both an Existential Threat to the International Rule of Law and an Indispensable Tool of American Foreign Policy in the Twenty-First Century, an-existential-threat-to-the-international-rule-of-law-and-

Commander in Chief Clause

at Historical Illustrations

Operation Inherent Resolve

Texas International Law Journal,

Panetta v Al Aulaqi, . PBS Frontline

payment.html.

Tess Bridgeman, “

Just Security

bidens-support-of-2002-aumf-repeal-the-start-of-a-long,

Just Security War

Powers Resolution of 1973, the

Anti-Accommodation Court and the Disability: From 1990 to Now.

Abstract

took to limit the number of people who qualify as disabled under the ADA

This paper then summarizes the federal reforms to and expansion

Johnson v Wald County and

II.What is a Disability? How the Supreme Court used its interpretive powers to limit the breadth of ADA protections

5

A.Toyota v Williams

1. Raising the Standard for Substantial Limitation

Thus, Toyota Motor Manufacturing, Kentucky, Inc. v Williams for substantial limitation

In Toyota, due to her Carpal Tunnel Syndrome and related impairments. substantial limitation to the

hold that to be substantially limited in performing manual tasks, severely restricts 9 In later legislation, the 110th Congress said the Supreme Court’s interpretation of the term substantially limits as severely restricts the Toyota 10 2. of disability. The Toyota 11 12 This, along with the Supreme Court’s

In Toyota, the Supreme Court questioned under what

. The Supreme Court’s holding that Williams did not qualify as disabled meant that employers of similar jobs.15 Toyota and substantially limits The Toyota

Toyota and the myriad Toyota

B. Sutton Rights

The Supreme Court aimed to answer the question of whether the status of disability should be made in regard to the Sutton v United Airlines, Inc., and Murphy v United Parcel Service. 19 insulin,20 In Sutton 21 The Sutton 22 With mitigating measures, the 23 ability to do the job.

of a disability. For example, in Sutton, was the employment

If the Supreme Court examined Sutton through the lens of of a disability. mitigating measures standard in Sutton Sutton and Toyota

many people with impairments from the legal identity of disabled

II.The Americans with Disabilities Act Amendments Act of 2008 key phrases to be more in line with Congress’ original intent.25 This

The ADAAA laid out rules for how the by the ADAAA’s guidelines.

long as the impairment “substantially limits a

29 Toyota, Toyota’s 30 For 31

In regard to substantial limitations, the ADAAA held that the Court’s standard of set by Toyota 32 substantial limitation. the meaning of substantially limits ADAAA,33 holding “substantial limitation standard.34 35 The Medvic v Compass Sign Co. held that the ADAAA superseded Toyota’s and Sutton The

2. Wrongly Applied Precedent (Keeping the Sutton and Toyota Standards)

Johnson v Weld County is an example of post-ADAAA

Johnson whether the plaintiff was “a disabled person within the meaning of the ADA 43 disabled under the ADA. Johnson does not mention the ADAAA Sutton v United Air Lines, Inc. the standard that “an impairment is substantially limiting when it in her 44 said was too high of a standard for qualifying as disabled.45 Johnson two years after the ADAAA’s implementation. The authors of

or did not mention the ADAAA. and animus. Two explanations are unintentional mistakes, disability employment law, to pursue.49

It is unsure whether Johnson

pay judges and law makers to attend forums and workshops. But Sutton and Toyota

4

Raytheon Co. v Hernandez, disability.

5 Marquette Law Review Sutton v United Airlines disability substantial limitation.

Toyota. v Williams 10

Finding 7 11 Toyota. v Williams 12

UNC Law Review 13 Toyota. v Williams 14 Ibid, 201. 15 Ibid, 19 Murphy held that the plaintiff did not meet when mitigating measures were taken the plaintiff’s high blood 20 Amy M. Kimmel, “Insulin: Can’t Be Disabled with It--Can’t 21 Sutton v United Airlines, Inc. 22 23

24 25 The ADAAA used the same 3 Term framework set by the ADA Ibid, . Ibid, Ibid, 29 Ibid, 30 Ibid, Purpose 4. 31 for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, 32 Ibid, Purpose 5. 33 34 35

status, and held that Carpal Tunnel Syndrome “substantially No. of disability: Kinney v Century Feldman v Law Enforcement, Ibid, rights interests in: 39 40 41 MacKenzie Thomas v Avis Fryer v Coil Tubing Services, Opportunities

Georgetown Journal on Poverty Law and Policy A.1

Ibid, 392. Ibid, 393.

Ibid, 402.

UNC Law Review Journal of American Chemical Society, Feldman v Law Enforcement Fryer v Coil Tubing Services

Georgetown Law Faculty Publications and Other Works

Johnson v Weld County

MacKenzie

Medvic v Compass Sign Co

Murphy v United Parcel Service, Georgetown Journal on Poverty Law and Policy

Raytheon Co. v Hernandez

Sutton v United Airlines

Thomas v Avis

Toyota. v Williams

Toyota. v Williams

The Stanford Encyclopedia of Philosophy Marquette Law Review

Nude Dancing and First Amendment

Jurisprudence:

How the Pap’s Court Extended the Secondary Effects Doctrine and Lowered the Evidentiary Bar for a Total Ban of a Form of Constitutionally Protected Speech

Edited by Jack Walker, David Cho, Claire French, Christopher Hudson, and Jeannette Kim

Introduction

It prohibits Congress from making laws that would abridge an or for t is

This paper will address the Supreme Court’s alarming steps expression. In Barnes v Glen Theatre, Inc. 1 2 A as limited adult expression.

City of Erie v Pap’s A.M. a: and,

City of Erie v Pap’s A.M. . 5 Part Pap’s Pap’s

I. Development of the Nude Dancing Doctrine Amendment extends beyond spoken and t

For example, a person walking down the street does not demonstrate a

pression.

In United States v O’Brien, 9 the Court established a twostep assessment under the First Amendment.10 11 In its hanging it out of a and is therefore and impermissibly infringed upon the appellant’s 12

Although the Court has not expressly applied the O’Brien Test to determine whether to ing California v LaRue, 13 s possess the power to regulate 14 15

Three years later, in , ing

California v. LaRue that this form of entertainment might be

Six years following , the Court buttressed the Schad v Mount Ephraim. The defendants, who patronize

LaRue and , writing: 19 expression in Barnes v Glen Theatre Inc. 20 earlier statements from LaRue, , and Schad 21 22 , judgment, 23 They also 24 25 but “a general in a state of nudity.

II. Level of Scrutiny Applied to Ordinances that Infringe on First Amendment Rights : whether

B.Content-Neutral Restrictions are Generally Held as Constitutional if They Survive Intermediate Scrutiny their is 30 not a 31 of the TPM is three-part: the regulation must alternative a four-part standard originated from United States v O’Brien32 to permissible: the regulation must further an important or substantial that interest.

Young,Renton, and Barnes

TPM and O’Brien’s Following Miller v California, 33 establishments under the TPM framework. First, in Young v American Mini Theatres,34 the Court found 35 to the City of Detroit’s argument: the statutory intent was not to

Following American Mini Theatres City of Renton v Playtime Theatres. ignored the Court of Appeals’s to distinguish [Renton] from American Mini Theatres, where there 39 To further

Renton

Renton foreshadows the slippery slope Barnes v Glen Theatre would head down. In dealing with

Barnes plurality applied the O’Brien test.40 Dissimilar from the TPM test, the O’Brien

American Mini Theatres and Renton 41 -

Clark v Community for Creative Non-Violence42 that the TPM and O’Brien test embody many O’Brien test in Barnes

III. Development of the Secondary Effects Doctrine

A. Young v American Mini Theatres

In American Mini Theatres

adult theaters. 44 45 nude issue should is undermines the founders’ The Court’s line of reasoning abridgment B.City of Renton v Playtime Theatres the plurality in Renton Renton 49 . That is, the purpose is “aimed not at the content

at the s 50 51 52 As53 content

Renton American Mini Theatres at the bare minimum 54 enton, at the time of trial, did not 55 judgment, the Court transgressed the TPM test. The third prong of the TPM test The plurality in Renton

American Mini Theatres 59 Renton fails to satisfy the TPM test. The and

C.Barnes v Glen Theatre

Renton

Barnes v Glen Theatre. Aforementioned, the plurality in Barnes applied the O’Brien O’Brien test does not require

TRenton’s rationale for the TPM test by extending it further to the O’Brien test. More disturbingly, he parroted the needlessness of drawing There is no requirement to demonstrate the opinion, if adopted, would enable Congress to pass general laws

IV. Summary of City of Erie v Pap’s A.M. Decision

In City of Erie v Pap’s A.M. Barnes therefore i ii iii and O’Brien test. The Court of Common ruled in Barnes the First and Fourteenth Amendments. Barnes Barnes

Marks v United States, it found the in Barnes too

Content-based laws must meet the narrow tailoring requirement than to require pasties and G-strings.

judgment, holding that the O’Brien test. Like Barnes, Barnes and adopted Sh and foregrounds that statutes

only need to satisfy the “‘less-stringent’ standard from O’Brien the plurality applies the O’Brien suppression of free expression and outlined in Renton and American Mini Theatres interest prong of the O’Brien to make judgments about the harmful

V. The Implications of Pap’s

A. a Protected Form of Speech in Pap’s

Chemerinsky,

Beginning with American Mini Theatres - The the Renton, the Court applied 90 91 Despite 92 93 This reasoning further transmutes the standard

of passing the Barnes 94 By applying the less stringent O’Brien us Erie

Barnes suggested that the preamble to the 95 In addition, the footnote in Pap’s stipulates that to the same prohibitions. p

how the plurality, in appraising 99 and whether

then a legal standard should be established to assess whether p 101 with the 102 thorough examination of Erie’s 103 suppressing .

O’Brien Test

The plurality in Pap’s 104

‘de minimis

First Amendment 105

In other words, Erie’s

109 prohibition 110

O’Brien Pap’s, the 111 The plurality in American Mini Theaters 112 Ten years later, the Court in Renton defended a 113,114 Pap’s Renton that the First Amendment requires “...a reasonable opportunity open to operate an adult theater within the 115 is essentially the entirely , 119

The Pap’s ‘ 125 she does not lay out what reasonably of the Seattle study is not established. The Court’s refusal to entails that , despite it bearing little in Barnes reasonable

the

First, it shifts the burden of proof to adult establishments. Adult 130 has little-to- Pap’s

VI.Conclusion

Pap’s own biases towards sexual expression, has extended an untenable,

1 Barnes v Glen Theatre, Inc. 2 Barnes v Glen Theatre. 3 City of Erie v Pap’s A.M. 4 City of Erie v Pap’s A.M. 5 Barnes v Glen Theatre, Inc.) Barnes Barnes v Glen Theatre.

United States v O’Brien

Spence

Spence

California v LaRue

LaRue

LaRue Salem Inn, Inc. Schad v Mount Ephraim

Strict Scrutiny 30

Christopher Thomas Leahy, “The First Amendment Gone Awry: Univ PA Law Rev. 1033 31 32 33 Miller v California 34 Young v Am. Mini Theatres 35 Young Renton v Playtime Theatres Renton v Playtime Theatres Renton 39 Renton 40 Barnes v Glen Theatre 41 Barnes 42 Clark v Community for Creative Non-Violence 43 Young v Am. Mini Theatres 44 Young v Am. Mini Theatres 45 Am. Mini Theatres Am. Mini Theatres Am. Mini Theatres Am. Mini Theatres 49 Renton v Playtime Theatres 50 Emphasis added. 51 Renton 52 Renton 53 Renton 54 Renton v Playtime Theatres 55 Renton

Ward v Rock Against Racism Renton

Renton

59 Am. Mini Theatres

United States v O’Brien, 391, Barnes

Ibid, City of Erie v Pap’s A.M., 529, Pap’s, 529

City of Erie v Pap’s A.M., 529, Pap’s, 529

judgment on Pap’s Ibid, Ibid, Ibid. Ibid. Ibid, 303-310. Ibid, Ibid, Ibid. Ibid. Ibid, 291. City of Erie v Pap’s A.M., 529, Pap’s Ibid, Ibid,

Ibid. Ibid, Chemerinsky, “Content Neutrality as a Central Problem of Freedom Ibid. Am. Mini Theatres , Ibid, 90 Renton v Playtime Theatres , 91 Renton , 92 Emphasis added. 93 Ibid, 94 Barnes v Glen Theatre., 501, 95 Leahy, Pap’s Chemerinsky, “Content Neutrality, 53. Pap’s, 529. at 292. 99 Ibid, 100 Ibid, 294. 101 Ibid, 102 Ibid, 290. 103 Ibid, 292. 104 Ibid, 105 Emphasis added. 1 Ibid, 319. Ibid.

Miller. 109 Ibid. 110 Ibid. 111 Ward, 491, 112 Young 113 Renton 114 Noted earlier, this argument is dubious. A large portion of the

Renton plurality’s reasoning still demonstrates that, prior to Pap’s,

115 Renton Pap Leahy, Ibid.

119 Pap’s, 529. at 322. 120 Ibid, 323. 121 Ibid, 323. 122 Ibid, 301. 123 Ibid,299. 124 Ibid, 125 Ibid, Leahy Pap’s, 529 at 314. Ibid, 310. 129 Ibid, 290. 130 Leahy,

Counter-Intelligence: Examining the Security and Press Freedom Implications of the 2019 Expansion of the Intelligence Identities Protection Act

Edited by Virginia Lo, Krishna Menon, Adeline Larsen, Derek Ng, Masa Al Azm, Shaurir Ramanujan

Abstract

abroad. This paper analyzes the arguments for and against the CIA’s 2019 IIPA

In 2019, the CIA proposed an expansion to the IIPA to 4 The CIA defended their

In the months that followed the CIA’s proposal, many The New York Times, The Washington Post and the Associated Press hindering press freedoms.5

journalists and whistleblowers.

II.The Backdrop of 1982

9 on his way home from a Christmas party.10 proposition of the IIPA.11 in numerous agent deaths, assassination attempts, and failed 12 The IIPA’s primary goal was therefore to Congress’s initial proposal of the IIPA was extremely 13 14 They wrote, “The

While then-Senator Biden

Despite President Biden’s fears, the IIPA has yet to be another agent’s name to a reporter.19

III.The CIA’s Proposed Expansion: A Modern Threat Assessment

in or were aware of the program. In response, the CIA argued that the report, while highlighting some of the CIA’s misdeeds, failed 25 These torture or witnessing torture.

While the CIA did not elaborate on their reasons for New

York Times. 30

under the IIPA.31 explaining,32 33 34 While agents between 2010 and 2012.35 China has also used stolen Europe in 2013. proposed IIPA expansion.

IV.Freedom of the Press, and Other Considerations

Associated Press, New York Times, and Washington Post, issued a letter to Congress urging them to

an obligation to publish the names of agents who design and run

wrote New York Times

For example, the CIA’s Detention and Interrogation program went unknown for nearly thirteen years until the Senate brought it to 40 For example, the New York Times Times instrumental in designing or leading the CIA’s drone program.41 The Times’ Lawfare 42 The agent of most note was D’Andrea, who the Times program and then, as head of the C.I.A. Counterterrorism Center, 43

seriously, often refraining from publishing at the CIA’s request.

Although it is true 49 It is therefore

50 In short, the Committee Lawfare could 51 Therefore, despite the Committee’s promises, it is entirely plausible that traditional news-gathering

V.Conclusion

New York Times,

The Washington Post,

New York Times, Lawfare,

Ibid.

New York Times,

Chicago Tribune,

Congressional Research Service

New York Times, 15 Ibid. The Christian Science Monitor, Ibid. Ibid. 19 The Christian Science Monitor, 20 Lawfare,

22 Ibid. 23 24 25 The Guardian Ibid. New York Times, The New York Times 29

ACLU, Apr 4, 2002, trials. 30 Lawfare, Apr 29, 2015, online at

Congressional Research Service

FCW, 33 Ibid. 34 New York Times, 35 Mark Mazeeti, et. al. “Killing C.I.A. Informants, China Crippled html. Foreign Policy, Consider This From NPR, Apr 23, 2021, online at BBC

41 Ibid. 42 Lawfare , 43 Ibid. 44 Ibid. 45 Lawfare Ibid. Lawfare , Ibid. 49 Ibid. 50 explanatory.html.

Lawfare

Christian Science Monitor, Chicago Tribune,

Consider This From NPR, April 23, 2021, Foreign Policy,

ACLU, Apr. 4, 2002, Congressional Research Service The Christian Science Monitor, Lawfare, Apr. 29, 2015,

BBC, FCW, The Guardian New York Times,

The New York Times Lawfare, The Washington Post, New York Times, New York Times,

Consider this from NPR,

“Send Lawyers, Guns, and a Dispersal Notice”: An Analysis of the Insurrection Act of 1807 and Its Application to the January 6th Capitol Riots

I.Introduction per se . Enshrined among others.1 de facto and state’s

But beyond the Framers’ intentions

4 Although authority. The primary 5 purposes. many reasons that in the most generous interpretations. From suppressing the KKK and to 9 and 10

lain dormant, last being be misused by the as a last-resort statute for 11 With small Congressional skirmish about expanding use the military in natural disasters,12 not been while he repeatedly

. 13 As Floyd’s death sparked national outrage marked by protests and demonstrations, President Trump sharply defend the life and property of their residents, then I will deploy

Protestors While some protestors zip ties.19 at bay as they 20 21

address three questions. First, could

during the Capitol riots? If so, should he does the and arises 23 In Part and during as it intent and history and

II.History of the Insurrection Act

25 The President also required in emerg Congress was not in session, and the 29 along with the requirement that Congress not be in session.30 motivation 31 32 Finding a partner in 33

It is hard to know what Burr’s true intent was in organizing these expeditions, and indeed, 34 Some

at the same time.35 Spain. In the York through the western states to the territories bordering 39 bring “[sic] 40 posse comitatus

going forward.42 th 43 it shall be lawful for him to employ, for the same purposes, 44

B.19th Century 45 deploy troops. In Martin v. Mott, did

In Luther v. Borden, 50 Martin Luther, a supporter of the the Constitution.51 While this suit presented a number of interesting along with whether or not troops should be deployed. In his majority 51 53 number of other times in the 19th 54 follows:

or imprisoned not more than two years, or both.55

C.20th Century

th

Brown v. Board of Education, President Eisenhower federalized the military to ensure that the the Arkansas National Guard to support segregationist protestors and the President Brown

Alabama. against segregationist protestors during the integration of the in September At the other student. Brown posse comitatus Montgomery, Alabama,

While it seems that desperation. Indeed,

Baltimore, resulting in the federalization and deployment of the military by The arrest and gruesome beating

III.The Modern Act

militia of the other States, in the number requested by that State, and

follows: those laws or to suppress the rebellion. that the President retains the sole authority to determine what may pursuant to the Supreme Court’s opinions in Martin v. Mott and Luther v. Borden.

must identify one of the following: or laws. And

disperse. requirement and the proclamation requirement

IV.Potential Application

to the January 6th Capitol Riots could th should th th, and the national

A.Question 1: “Could”

we must assess whether President Trump from the Supreme Court or Congress, the p

could p neutral and see platonically ideal president, it must be determined whether a p It is reasonable to assume p legally th 90 least, that there was some 91 A p Capitol. Federal law prohibits “depredation against any property of 92

94 en masse should th .

Constitution.95 A an ill omen T B.Question 2: “Should”

could indeed th , the question now shifts to whether the President should Notably, the by law any other authorities, a President is well within their rights to not th, the National breaking the .

unanswered. made in medias res nearly th President

th . There . by saying that he was blatantly unaware of the broad powers offered to the defense would require one to unlikely President Trump the Summer 2020 Floyd Protests. the President had no knowledge his likely be aware

ne may argue that the President assumes that none of the Capitol powers of the th. It seems

response to the Summer 2020 Floyd protests would be unaware that attempting to halt a . Another plausible reason is determined th determination would be wrong th resemble . the to the National Guard, military deployment against an attempted from a national estors’ sense, there is a symbolic The military the nation, and a fortiori had the primary responsibility to quash the protestors.

seemed to be egged on by Trump himself alongside other pro-Trump 99 potential ability to be used. 100 at least 101 it would buildings.102 somewhat untested and does not require that the president use the th highest degree. As a whole, the President should th. The President should

V.The Normative Value of the Act and

existential threat to the nation. It makes sense that the President, as legitimately grave th. In a world where Congressional authorization is Congress itself is under without ’ defeat required - is it wise to does not require the is it not equally

There seems to be no easy way out of this quandary from it boils down to its Indeed, history seems to bear this out, th, nor during States.105 In the torn in two. Perhaps it is for the best that the amount of existentially threatening th th, were they allowed

identifying

VI.Conclusion Excitable Boy

th, 2021, in the Capitol Complex, the shit had hit the fan. Like the young man from the forth any guns in an attempt to remedy the situation militarily. The

what might be called an act of mere political desperation, the best the President could offer at the time was a video message telling the protestors to “go home,” adding “We love you. You are very special.”112

While the Insurrection Act remains shrouded in both constitutional and normative controversy, it is still an active part of U.S. law. And while the bounds of the Act remain unclear, it is clear that President Trump missed an opportunity to invoke the Act when it was sorely needed. For if an insurgent, armed mob of protestors storming the seat of U.S. government during the counting of electoral votes crucial to the peaceful balance of power cannot be considered an insurrection, what can be? Even if the Insurrection Act is a blatant overreach of executive power with the potential to be abused and overused, would it not be in the best interest of our government to leverage such power while it is available in an instance to protect the Republic?

While no one can predict the future of the Insurrection Act, one thing remains certain – militant far-right groups are on the rise, both in the U.S. and beyond.113 As these groups continue to gain steam and become emboldened, there is no guarantee there will not be another attempted January 6th-style riot at some point in the near future, whether it be in the U.S. Capitol, the White House, a State Capitol, or some other building of governmental import.114 As long as the Insurrection Act remains part of U.S. law, the President ought to, at the very least, remember that the Act may serve as a powerful tool against such groups, should they attempt something so bold as active insurrection. In using the Insurrection Act as it was originally envisioned – merely for the suppression of actual insurrections and rebellions – we may find a way to ensure the Act maintains its relevance without succumbing to the temptation to stretch the Act beyond its natural limit, as domestic security becomes increasingly fraught.

see generally Stephen I. The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act

William C. Banks, Providing “Supplemental Security” - The Crises.

4 Banks, supra 5 Posse comitatus th posse in

See infra habeas corpus. See also supra

The Role of Federal Military Forces in . Washington, D.C.: Center of

9 Coakley, supra

10 supra note 13, 150. 11 at any point in the 21st 12 see Banks, supra 13 in Custody. The New York Times 14 Trump threatens to deploy military as George Floyd protests continue to shake the U.S. 2021]. 15 law more broadly. See Opinion | Trump’s military force threats raise questions. Here’s what he can (and can’t) do.. See also supra

Ibid.

Arrested Capitol rioters had guns and bombs, everyday careers and Olympic medals. [online] April 2021].

19 Oath Keepers leader coordinated with Proud Boys and others before Capitol riot, prosecutors say I., 2021. Capitol riot suspects who allegedly brought zip ties, wore tactical gear arrested 20 not any National Guard of any alone may See Collins, K., Cohen, Z., Starr, B. Pence took lead as Trump initially resisted sending National Guard to Capitol 21 US Capitol secured, 4 dead after rioters stormed the halls of Congress to block Biden’s win. [online] 22 Capitol Complex. 23

st see generally Banks, supra supra supra see generally Coakley, supra supra note 13, and Laurie, infra 24 Coakley, supra note 12, 23. 25 Ibid., at 22. See also infra note 93 for the modern instantiation of this requirement. Ibid. Ibid. Ibid. 29 Ibid.30 Ibid. 31 Ibid.,32 Ibid. 33 Ibid. 34 Ibid.35 Ibid. Ibid. Filibustering their own. 39 Ibid. 40 41 See also supra posse comitatus. 42 Ibid. 43 Ibid.

45 Ibid. -90. supra Ibid. 49 50 51 See also supra 52 53 Coakley, supra 54

The role of federal military . Washington, D.C.: Center 55 see generally The Posse Comitatus Act: A Principle in Need of Renewal supra note 13, at 44. Ibid , at 34. 59 Ibid., at 45. Supra note 15. supra note 13, at 93. Ibid. See posse comitatus. supra -191. Ibid, 191.

Ibid, 204. Ibid Ibid, 324. Ibid, 305. Supra note 13. supra note 13, 441. Ibid Ibid see generally supra supra Ibid. . Ibid. Proclamation Requirement. Supra Supra 90 Supra note 90. 91 Supra note 92. 92 93 94

See also Klehm, supra note 21. 95

Collins, supra note 23. Supra note 19.

of Capitol riot 100 The Concept of Law 101 102 supra 103 See generally Banks, supra supra 104 105 Coakley, supra -35.Ibid Supra 109 Ibid. 110 Lawyers, Guns and Money. [online] Asylum 111 Ibid. 112 Barrett, supra 113 Cas Mudde, around the world

See

Cas Mudde,

A far-right threat shut down US Congress this week. Why aren’t we talking about it? See also Mudde, supra note 122.

Banks, William C. 2009. Providing “Supplemental Security”The Insurrection Act and the Military Role in Responding . th

Brown v. Board of Education

The Role of Federal Military Forces in . Washington D.C.: Center

The Posse Comitatus Act: A Principle in Need of Renewal The Concept of Law

The New York Times .

An Insurrection Act for the TwentyFirst Century .

index.html.

The role of federal military . Washington, D.C.:

Luther v. Borden

Reuters . Martin v. Mott

Miranda, Lin Manuel. 2015. My Shot why-not-talking-about-it. 2021. around-the-world.

The Role of Federal Military Forces in

The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act . Deploy Military as George Floyd Protests Continue to . Lawyers, Guns and

How Brown Died: An Autopsy into the Causes of Modern Segregation

Edited by Isabel Coberly, Cassandra Cordie, Kay Barber, Chloe Tung, Irie Sentner

Abstract

Brown v Board of Education of Topeka

the 1954 Brown Brown Brown holding Brown, without outright

I.America’s Brown Myth

Brown v Board of Education of Topeka as 1 She’s right. Brown 2 Brown is Brown’s de facto 3 4 5

wealthier white peers.

As residential patterns lead to de facto segregation of 9 10 Brown Brown’s 11 Those who 12 While this post-

13 14

Brown’s Brown in Students for Fair Admissions Inc. v President & Fellows of Harvard College, 15

Brown as an antisubordination. It would end Brown’s promise of desegregation

The petitioner’s brief in Students for Fair Admissions Inc. makes Brown Brown’s . Therefore, the brief , Brown.

in the number of nonwhite students attending majority-white de facto Brown Brown toward integration in between. The story of Brown begins with a holding far less Brown was Brown in Milliken v Bradley and 19 Brown possible in Oklahoma City , 20 Freeman v Pitts , 21 and Missouri v. Jenkins 22 This

Students for Fair Admissions Inc. offers the Court the opportunity to further Brown

Brown

II.With No Deliberate Speed

Brown into two parts: Brown I and Brown II. While Brown I was full of lofty intentions, Brown Brown II segregation. Central to Brown II 23 The Court argued manner.24 Brown II Brown I 25 Brown’s power from day one. Brown II holding. far more sinister story of the post-Brown South was one of quiet These plans manipulated Brown

Brown without addressing the failures of implementation, Cooper v Aaron Goss v Board of Education of Knoxville, Tennessee and County 29 30 absent in Brown’s Brown II rulings narrow. 31 rulings futile, the intentions outlined in Brown I

III. Brown’s Return

the integration that Brown I 32 Singleton v 33 and then in U.S. v Jefferson County34 upheld.35

Green v County School Board and Swann v Charlotte Mecklenburg Board of Ed. Brown II that Brown now 39 addressed Brown Brown 40 Green, 41 This Brown. Trying 42

Swann Green Brown II: implementation. While Swann begins with a reiteration of Brown II’s

table. Swann’s takeaway similarly burdensome.

Swann and Green, the segregation laid the groundwork for the Court’s failure to address the de facto

Brown, Swann, and Green dealt with segregation, de facto de facto segregation. 43 While the de facto segregation. Thus, Green and Swann integration efforts, also foreshadowed the ultimate death of Brown

IV.Desegregation Losses of the 1970s

Milliken

v Bradley possible remedies for de facto Court’s holding in Brown, integration plan. 44 45 systems had not been maintained, remained highly segregated as

proponents lost the war: the Supreme Court set a standard that

de facto segregation. de facto segregation. In order to gain relief, the plaintiff must satisfy the Keyes requirement by permitted under Milliken, resulting in a system only equipped to segregation. But by the it was de facto segregation from here on out.

V.The Era of Localization

If Brown 1990s. desegregation.49

In Oklahoma City systems [has always] been intended as a temporary measure to 50 51 the order was lifted. 52 tried 53 Finally, the not plan to address the more pressing issue of de facto segregation. order.54 Freeman v Pitts . 55 took

integration in Dekalb County. In other words, the Court weakened Thus, Freeman partial unitary status to be deregulated while maintaining many of Freeman Freeman, writing argues that this posture was a break from the past, for while Green to Milliken, “it was only in Freeman build on Milliken, remedies for integration efforts in Missouri v Jenkins .

In many ways, Jenkins Swann. Whereas Swann Jenkins Milliken 59 Green and Swann. VI.Conclusion

Parents Involved in Community Schools v to Students for Fair Admissions Inc. Parents Involved

Brown

Brown

makes the same argument in Zelman v Simmons-Harris

Brown departure from Brown Brown

2 Brown What Brown v. Board of Education Should Have Said, 1. 3 4 Ibid, 2. 5 Garcia, 3-4. Erica Frankenberg et al. “Southern Schools More than a Half Century After the Civil Rights Revolution,” UCLA Civil Rights Project (May 2017).

The Atlantic, 9 Vox, 10 Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality (Chicago: The University of Chicago Press, 2013): 9. 11 Brown v. Board of Education of Topeka, 12

The New York Times.

index.html.

Supplemental Brief for Petitioner, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, No. 20-1199,

Charles Clotfelter, After Brown: The Rise and Retreat of School : Milliken v. Bradley, 418 U.S. 717, 745 (1974). 19 20 21 Freeman v. Pitts 22 Missouri v. Jenkins, 23 Brown v. Board of Education of Topeka, , 24 Brown v Board of Education of Topeka , 25

North Carolina Law Review p Cooper v Aaron Goss v. Board of Education of Knoxville, 29 Bell, J., Dissenting in What Brown v. Board of Education Should Have Said 31 The Hollow Hope 32 Ibid.

, 332 F.

34 United States v. Jefferson County Bd. of Educ., 35 , 332 F.

Green v. County School Board Swann v. Charlotte Mecklenburg Board of Ed. North Carolina Law Review 39 , 40 41 Ibid. 42 Ibid. 43 It should be noted that the Court found in Baston v. Kentucky peremptory the court system 44 Milliken v. Bradley, 418 U.S. 717, 745 (1974). 45 North Carolina

Law Review

Charles Clotfelter, After Brown: The Rise and Retreat of School

Cardozo

Journal of Equal Rights and Social Justice

of Resegregation,” The Civil Rights Project, Harvard University, 16, (2001). 49 . 50 51 Ibid. 52 49 New York Law School Law Review 53 Green. 54 North Carolina Law Review

55 Freeman v. Pitts Freeman v. Pitts James McGoldrick, Jr., “Two Shades of Brown: The Failure of Desegregation in America; Why it is Irremediable (and a Modest Proposal),” 24 Cardozo Journal of Equal Rights and Social Justice 271, 298 (2018).

59 Erwin Chemerinsky, “The Segregation and Resegregation of American Public Education: The Court’s Role,” 81 North Carolina Law Review 1597, 1618 (2003). no. 1 Bell, J., What Brown v. Board of Education Should Have Said

majority in Parents Involved. Zelman v. Simmons-Harris

Works Cited

Brown What Brown v. Board of Education Should Have Said Bell, J. What Brown v. Board of Education Should Have Said .

Brown v. Board of Education of Topeka Vox

Charles C. Green v. County School, Board of New Kent County, 391 North Carolina Law Review

Clotfelter, Charles. After Brown: The Rise and Retreat of School Cooper v. Aaron .

UCLA Civil Rights

Freeman v. Pitts

Goss v. Board of Education of Knoxville, Tennessee Green v. County School Board

Cardozo Journal of Equal Rights and Social Justice

Milliken v. Bradley

Missouri v. Jenkins 2020, . no. 1 North Carolina Law Review

The Hollow Hope

The New York Times

Stuck in Place: Urban Neighborhoods and the End of Progress toward Racial Equality , 332 F. Supp. The Atlantic,

Supplemental Brief for Petitioner, Students for Fair Admissions, Inc. v.President & Fellows of Harvard College, No. 20-1199,

Swann v. Charlotte Mecklenburg Board of Ed.

United States v. Jefferson County Bd. of Educ.