Politics

SEC 2021 Regulatory Priorities Under the Biden Administration – A Look Ahead and COVID-19 Considerations

TLR BLOG

By: Saba Khan, Esq.*

*Saba Khan is an Honors Scholar and graduated magna cum laude from Touro Law Center in 2017. She previously served as the Articles Editor of the Touro Law Review. Ms. Khan is currently a Director and Regulatory Compliance Counsel at UBS. Prior to UBS, she worked at JPMorgan Chase & Co.

As with the turning of each new Administration, regulatory priorities shift, and that is no different for banking regulations, particularly in the area of securities laws. That being said, we can soon expect the pendulum to swing towards tighter securities regulations, greater oversight, and a higher number of enforcement cases.

When Biden assumed office in January 2021, he nominated Gary Gensler to replace Jay Clayton as Head of the Securities Exchange Commission (SEC) (1). Gensler’s own professional background provides some insight into what lies ahead in the near future. He is a former partner at Goldman Sachs Group Inc., and past Chairman of the Commodity Futures Trading Commission (CFTC) (2). During his time at the CFTC, he implemented new rules and made clear of his goal to “protect the public and market participants through a robust enforcement program.” (3)

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Overcentralization of Power and Pedestrian Fatalities: A Review of Professor Sara Bronin’s Upcoming Article

TLR BLOG

By Professor Michael Lewyn*

Over the past decade, the number of pedestrians killed by motor vehicles has increased by over 40 percent, while similar fatalities in Europe have become less common.  Why are American streets so dangerous?

In an article[1] soon to be published in the Iowa Law Review, Sara Bronin of the University of Connecticut’s law school blames overcentralization of power.  Prof. Bronin points out that across the nation, streets are designed according to standards set by small groups of private experts, whose work is usually not subject to input from the general public.  These groups usually have no training in urban planning, and their work is often designed to make motor vehicle traffic run as smoothly and rapidly as possible.  Their codes are often so expensive as to be inaccessible to the general public; for example, one widely adopted traffic planning manual costs $310 for a digital copy.

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A Life in the Law: An Interview with Drew Days

TLR BLOG

Rodger D. Citron*

Associate Dean for Research and Scholarship& Professor of Law

2014 © Posted with permission from the author.

Drew Days (photo credit: Yale Law School)

Drew S. Days, III, lived an extraordinary life in the law. Born in the segregated South, Days graduated from Yale Law School in 1966 and pursued a career as a civil rights lawyer. In 1977, he was appointed Assistant Attorney General for Civil Rights.  

After his stint in the administration of President Jimmy Carter, Days became a professor at Yale Law School. In 1993, Days returned to the federal government after President Bill Clinton appointed him Solicitor General of the United States.  He served in that position until 1996 then returned to Yale Law School as a professor.   

Days died earlier this month at the age of 79.  Regarding Days, former Yale Law School Dean and Sterling Professor of International Law Harold Hongju Koh said, “Drew was a gentle, courageous lawyer of principle, deeply committed to human and civil rights. He always spoke quietly and modestly, but with such moral authority.”  Koh added that Days “cared nothing for titles or recognition because his client was always the Constitution, not the political powers of the moment. His life will be remembered as a reminder of the moral urgency of putting principle first.” 

In 2011, Days visited Touro College, Jacob D. Fuchsberg Law Center to deliver the Howard A. Glickstein Civil Rights and Public Policy Lecture. As part of his visit, Professor Days was interviewed by Professor Rodger Citron about his life and career. An edited transcript of their conversation, published in the Touro Law Review in 2014, follows. 

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Executive Privilege from the Judicial Process: Indictments, Criminal Proceedings, and Pardons

TLR BLOG

By Nicholas Maggio

On August 21, 2018, President Donald Trump’s former personal attorney, Michael Cohen, admitted in federal court that, during the 2016 campaign, Mr. Trump ordered him to arrange payments for two women with the principal purpose of influencing the election.[1]  This is a recent development surrounding the special counsel investigation into whether Russia interfered with the 2016 United States Presidential elections. Investigators are looking into any coordination between the Trump election campaign and Russian officials and whether President Trump obstructed justice by lying or withholding information from the investigation.[2]  Most notable about Mr. Cohen’s admission is that it directly implicates the president as a co-conspirator in a proven federal crime.[3]

However, it remains unclear whether a sitting United States president can be indicted.  In 1973, the Department of Justice Office of Legal Counsel (“OLC”) issued a memo arguing that a sitting president could not be indicted.[4]  It reiterated this argument in 2000 after President Clinton’s sex scandal.[5]  The OLC argued that the nature of criminal proceedings, including the indictment process, would unduly interfere with the conduct of the president.[6]  The memos equated an  indictment to an incapacitation of the president.[7]  Accordingly, the memos concluded that indicting a sitting president would unconstitutionally impair the executive from executing his constitutional obligations.[8]

It is uncertain whether these are official Department of Justice policies.  The OLC argues that these memos are binding policies.[9]  Robert Mueller, the head of the special investigation, stated he would follow these memos as they relate to bringing an indictment.[10]  Nevertheless, legal scholars disagree whether the memos are binding authority of prosecutors and the Special Counsel.[11]  For instance, the arguments set forth in these memos are not settled law as they are neither found in statutes nor case law.  No court, including the Supreme Court of the United States, has heard a case or ruled on whether a sitting president can be indicted.

The author argues that prosecutors should bring their indictments and let the Supreme Court decide the constitutionality of their action.  The Department of Justice’s memos should not preclude this issue from going to the nation’s highest court.  Article 2, section 1, clause 6 of the United States Constitution provides the precedent conditions and procedure for replacing a sitting president.[12]  Specifically, the clause details that a president’s “inability to discharge the powers and duties of said office” shall allow for a new officer to act as the president until the disability is removed or a new president is elected.[13]  Clauses 3 and 4 of the 25th Amendment further clarify replacement procedures when a president can no longer discharge his duties.[14]  Thus, if an indictment would interfere with the President discharging his constitutional duties, we should utilize the provisions already in place.

The Constitution

There are no constitutional provisions dealing with whether a sitting president can be criminally indicted.  The recorded discussions during the Constitutional Convention do not help clarify the issue of presidential immunity from indictments either.[15]  Instead, the Constitution provides for the conditions under which a President may be removed from office.

In article 2, section 1, clause 6, the Constitution reads in relevant part: “[i]n Case of the . . . [i]nability to discharge the Powers and Duties of the said Office, . . . the Congress may by Law provide the Case of Removal . . . .”[16]  The records of the Federal Convention do not provide much clarity concerning how criminal indictments relate to this provision.[17]

The lack of case law on the subject forces one to turn towards peripheral, secondary sources of authority.  Some early analysis of the Constitution highlights how our system allows for indictments of officials in contrast to the English system.[18]  For instance, Patrick Henry, an American attorney and Founding Father, gave a speech suggesting that a President could be  indicted while in office.[19]  Modern legal scholars recognize founding figures’ conclusions that a President should not enjoy immunity from indictment while in office.[20]

The 25th Amendment

The 25th Amendment serves to clarify the order of succession and procedures in place to succeed a President.  However, there is a lack of law or instances that help define when one should invoke this amendment.  In relevant part, section 3 of the 25th Amendment reads that:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.[21]

Before passing the 25th Amendment, Congress conducted studies among legal scholars to determine what qualifies as an “inability” under the Constitution.[22]  While some survey responses contend that a disability should be defined as what the founders could have medically contemplated at their time, others argue that it is a practical matter concerning whether the president is discharging the duties of his office.[23]

There is only a small pool of Presidents that had their powers removed under the 25th Amendment.  In 1985, President Reagan penned a letter charging then-Vice President Bush with discharging presidential powers and duties.  This precipitated Reagan’s undergoing surgery, which left him temporarily incapacitated.[24]  President Reagan soon resumed his powers after his surgery.[25]  In 2002, President George W. Bush penned a letter discharging his duties to the Vice President under the 25th Amendment.[26]  This letter also preceded a medical procedure that required sedation.[27]  President Bush discharged his duties again in 2007 before another routine medical procedure that required sedation.[28]  He resumed his powers shortly thereafter both times.[29]

Office of Legal Counsel Memoranda

In 1973, the Department of Justice OLC drafted a memorandum arguing that a sitting President could not be indicted.[30]  The memo explained that the attention necessary to defend a criminal indictment would “interfere with the President’s unique duties.”[31]  Accordingly, the memo concluded that an indictment would frustrate a President’s ability to carry out his duties to such an extent that any proceeding should be deferred until after his term.[32]  In 2000, the OLC reaffirmed these conclusions with another memorandum.[33]

Federal prosecutors are expected to follow official Department of Justice policies and regulations.[34] While it has been an official practice of the Department of Justice to refrain from indicting a President, it is unclear whether doing so is an official policy.[35]  The official nature of these memoranda and their frequency suggest that federal prosecutors would be bound by them.

Indictment as a Disability

            History would lend itself to the notion that the 25th Amendment’s third and fourth clause are reserved for medical incapacities.  Even in letters to Congress before drafting the Amendment, legal scholars argued that a disability could only be understood as the founders understood intellectual illness.[36]  Yet, others still argued that the inability to discharge duties should extend to practical matters.[37]

For constitutional purposes, a mental or physical disability is worth considering because of the impairments it places on one to carry out their work.  In theory, we are not concerned with disabilities that do not impair an officer’s ability to produce a quality work product.  Accordingly, administration officials are solely concerned with circumstances that afflict one’s ability to practically function.  If a condition, either mental, physical, or legal, prevents a president from discharging his duties in any way, then that should be considered a disability sufficient for invoking the 25th Amendment.

History shows us that a President can still be effective while attending to legal proceedings.  In December of 1998, the House of Representatives introduced articles of impeachment against President Bill Clinton.  Still, he enjoyed a 68% approval rating and a 72% rating among Americans that felt he could be effective and lead successful foreign policy endeavors.[38]  Moreover, President Clinton deployed troops, after rallying support, to Serbia in March of 1999 (a month after his impeachment proceeding).[39]  This achievement complemented domestic accomplishments, too.  For instance, President Clinton, a member of the Democratic Party, was able to negotiate with the Republican Party (“GOP”) and agreed on paying dues to the United Nations (“UN”), doubling afterschool programs, and the 100,000 teacher initiative.[40]  In President Clinton’s case, attending to legal proceedings did not seem to debilitate him from executing his duties.  Nevertheless, the consequences of legal proceedings did not appear to impair the credibility or function of the government.

Insulating a President from indictment allows for a likely criminal actor to exercise powers in our nation’s highest office.  This circumstance was occasioned during Nixon’s presidency.[41]  Because of Nixon’s position, he secured funds to bankroll cover-ups of the Watergate scandal.[42]  These operations spanned across two terms.[43]  An indictment could have intercepted and stopped these operations sooner than an impeachment.

One rebuttal to this argument is that Congress is charged with removing a President when he does something dastardly.  It seems important to note that impeachment is a political process.  As such, its instigation is subject to the whims of politicians.  Its success also requires a two-thirds majority vote by Congress.  Accordingly, it is possible that a President can commit a federal offense without being removed from office.  It does not necessarily follow that because a President does something “dastardly,” he will be removed from office.

Conclusion

The Constitution provides for replacing a President while in office.  As a nation, we have seen this procedure carried out on several occasions.  Further, the President can execute both foreign and domestic initiatives with success while attending to legal matters and wrestling with the consequences of them.

Most importantly, perhaps, is that Congress could effectively insulate a President’s removal from office following an impeachment.  This serves to keep a person, likely guilty of crimes, with the gambit of executive power at his disposal.  Our experiences with President Nixon and his proclivity for cover-ups indicate why this is problematic.

In sum, not only does the Constitution provide for replacing a disabled sitting President, but our laws and history allow holding them accountable with an indictment.  It is not only permissible, but imperative, that we hold our chief executive accountable for his criminal behavior.  Thus, prosecutors should bring indictments and let the Supreme Court resolve the constitutionality of bring such allegations.

[1]  William K. Rashbaum et al., Michael Cohen Says He Arranged Payments to Women at Trump’s Direction, N.Y. Times (Aug. 21, 2018), https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html.

[2] Chris Strohm & Shannon Pettypiece, Mueller Weighs Putting Off Trump Obstruction Decision, Bloomberg (Mar. 12, 2018, 4:00 AM), https://www.bloomberg.com/news/articles/2018-03-12/mueller-is-said-to-weigh-putting-off-trump-obstruction-decision.

[3] Aaron Blake, Michael Cohen’s Plea Deal is Very Bad for Trump, Wash. Post (Aug. 21, 2018) https://www.washingtonpost.com/politics/2018/08/21/why-cohen-plea-deal-is-bad-trump-it-puts-him-very-close-an-actual-crime/?noredirect=on&utm_term=.d44a53a1ec1c (discussing Mr. Cohen pleading guilty to eight counts of financial crimes).

[4] Robert G. Dixon, Jr., Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office, Dep’t Just., Sept. 24, 1973, https://fas.org/irp/agency/doj/olc/092473.pdf.

[5] Randolph D. Moss, A Sitting President’s Amenability to Indictment and Criminal Prosecution, U.S. Dep’t Just., Oct. 16, 2000, https://www.justice.gov/file/19351/download.

[6] Id.

[7] Id.

[8] Id.

[9] Andrew Crespo, Is Mueller Bound by OLC’s Memos on Presidential Immunity?, Lawfare (July 25, 2017, 9:00 AM), https://www.lawfareblog.com/mueller-bound-olcs-memos-Presidential-immunity.

[10] Michael S. Schmidt et al., Mueller Won’t Indict Trump if He Finds Wrongdoing, Giuliani Says, N.Y. Times (May 16, 2018), https://www.nytimes.com/2018/05/16/us/politics/mueller-trump-indictment.html.

[11] Crespo, supra note 9.

[12] U.S. Const. art. II, § 1, cl. 6.

[13] Id.

[14] U.S. Const. amend. XXV, § 3 (“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President”).

[15] Eric M. Freedman, The Law As King and the King As Law: Is A President Immune from Criminal Prosecution Before Impeachment?, 20 Hastings Const. L.Q. 7, 16 (1992).

[16] U.S. Const. art. II, § 1, cl. 6.

[17]  See generally Max Farrand, The Records of the Federal Convention (1911), http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-3vols.

[18] William Rawle, A View of the Constitution of the United States of America 125-26 (1829), http://press-pubs.uchicago.edu/founders/documents/amendIIs9.html.

[19] Speech of Patrick Henry, Am. Hist., June 5, 1788, http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php.

[20] Freedman, supra note 15, at 13-15.

[21] U.S. Const. amend. XXV, § 3.

[22] Problem of Presidential Inability: Hearings Before the Spec. Subcomm. to Study Presidential Inability of the Comm. on the Judiciary H.R., 84th Cong. 16 (1956) [hereinafter “Hearings”].

[23] Id. at 18.

[24] Ronald Reagan, Letter to the President Pro Tempore of the Senate and the Speaker of the House on the President’s Resumption of His Powers and Duties Following Surgery, Am. Presidency Project, July 13, 1985, http://www.presidency.ucsb.edu/ws/?pid=38884.

[25] Id.

[26] George W. Bush, Letter to Congressional Leaders on Temporary Transfer of the Powers and Duties of President of the United States, Am. Presidency Project, June 29, 2002, http://www.presidency.ucsb.edu/ws/?pid=63676.

[27] Id.

[28] Bush, supra note 26.

[29] George W. Bush, Letter to Congressional Leaders on Resuming the Powers and Duties of the President of the United States, Am. Presidency Project, July 21, 2007, http://www.presidency.ucsb.edu/ws/?pid=75573.  See also Bush, supra note 26.

[30] Dixon, Jr., supra note 4.

[31] Dixon, Jr., supra note 4.

[32] Moss, supra note 5.

[33] Dixon, Jr., supra note 4.

[34] 9-27.000 – Principles of Federal Prosecution, U.S. Dep’t Just., https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution (last updated Sept. 19, 2018).

[35] Schmidt, supra note 10.

[36] Hearings, supra note 22.

[37] Hearings, supra note 22.

[38] Presidential Approval Ratings – Bill Clinton, Gallup: News, https://news.gallup.com/poll/116584/Presidential-approval-ratings-bill-clinton.aspx (last visited Oct. 2, 2018).

[39] Samuel J. Sarver, Effects of the Impeachment on Bill Clinton’s Staff, Cabinet, Agenda, and Legacy, Ill. St. U., https://pol.illinoisstate.edu/downloads/conferences/2006/Sarver13.pdf (last visited Oct. 2, 2018).

[40] Id.

[41] See generally John W. Dean, Blind Ambition (1976); Carl Bernstein & Bob Woodward, All The President’s Men (1974); Bob Woodward & Carl Bernstein, The Final Days (1976).

[42] Id.

[43] Id.

Conceptual Separability Conceptualized

TLR BLOG

By Joseph Tromba, J.D. Class of 2018 Touro Law Review Associate Editor

Courts have struggled to devise a test to establish “whether ‘the pictorial, graphic, or sculptural features’ incorporated into the design of a useful article ‘can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the [useful] article’ when those features cannot be removed physically from the useful article.”[1] This doctrine is applied to countless commodities that directly and indirectly impact the day-to-day lives of everybody in society.[2] Further, an establishment of separability, either conceptual or physical, is a precondition to copyrightability for a design of a product.[3]

The distinction between design elements that are protectable and functional elements that are not protectable can be unclear.[4] Generally, the concept of separability is the standard of copyrightability for useful articles’ designs.[5] The types of works that are subject to the separability analysis are broad; courts have implemented the separability doctrine to decide “the copyrightability of the designs of a variety of everyday objects, including furniture, shoes, and objects of entertainment for both children and adults.”[6] There exists “two ways to determine whether a pictorial, graphic, or sculptural work is separable from the utilitarian aspects of an article—physical separability and conceptual separability.”[7]

The Copyright Office outlines “the physical-separability test as follows: ‘Physical separability means that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.’”[8] For example, the Office contemplates a creative decorative ornament of a vehicle,’ which could be removed from the vehicle without demolishing the vehicle or the ornament, a physically separable aspect a vehicle, which can be recognized independently from and is able to exist separately of, the functional aspects of the vehicle.[9] However, the physical separability test is not as effective when the useful article is not three-dimensional since it is difficult to physically remove the useful article from the item it appears on.[10] When features cannot be physically separated from an object, the conceptual separability test is applied.[11]

There have been many different approaches presented for confronting the issue of conceptual separability.[12] Courts have struggled to establish one universal test for whether the design of a useful article and the utilitarian aspects of a useful article can be separated and exist independently of one another.[13] Around ten different tests exist within legal commentary to determine separability.[14] Some of these tests are misguided and got muddled down by focusing on other factors, such as the marketability of the design or useful article.[15] To prevent any further inconsistencies and struggles as to how to approach conceptual separability, the Supreme Court finally adopted a general rule.[16]

In Varsity Brands, Inc. v. Star Athletica, L.L.C., Varsity brought a copyright infringement claim against Star Athletica.[17] Varsity alleged that Star marketed uniforms that were substantially similar to Varsity’s copyrighted designs.[18] The Supreme Court decided, in a 6-2 holding, that an aspect that is included in the design of an article can qualify for copyright protection “only if the feature (a) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work” if the design could be conceived separately from the product in which it is involved.[19] Accordingly, the Court held that Varsity’s designs satisfied the test.[20] Essentially, if the design could be conceived separately from the product in which it is involved then the conceptual separability test is satisfied and the design is copyrightable.[21]

Finally, the test creates a national standard for conceptual separability that differs from physical separability.[22] The test is clear, in that it does not confuse physical separability.[23] It places an emphasis on the specific aesthetic features, which are capable of existing separately as intangible features in relation to the solely utilitarian aspects of the article.[24] This test, in theory, looks as if it will accomplish what the physical separability test cannot do, such as dealing with the intangible aspects of the useful article as actually being intangible aspects, and is a competent rule to exist alongside the physical separability test.[25] This test firmly establishes a basic approach that could be applied widespread, and will hopefully be an effective approach to compliment the physical separability standard.[26] Further, the test addresses the actual purpose of conceptual separability better than the preexisting approaches that existed in legal precedent because this test is clearer and does not get muddled in other factors, such as marketability.[27] This standard is a focused test that allows the courts to tackle the issue of whether the aesthetic element of a product is conceptually separable from the utilitarian aspect.[28]

The Court’s recent conceptual separability holding finally provides a national standard for conceptual separability.[29] Conceptual separability is all around us, and it will only continue to expand as time goes on and new designs and useful articles are created.[30] The concept of conceptual separability was thought to have reached its vanishing point because of various the different approaches and interpretations of the idea.[31] Hopefully, this holding will prove to have finally clarified a dividing line between copyrightable designs and noncopyrightable useful article designs.[32] Since the Court’s opinion was released on March 22, 2017, we will have to wait and see how this new test is executed when separability issues arise.[33] Many believe that the future of a $300 billion industry is going to be determined based on this decision.[34]

[1] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 484 (6th Cir. 2015) (holding that the graphic attributes of a creator’s designs were protectable in accordance with the Copyright Act because the Act protects graphic attributes of designs even if the attributes cannot be physically extracted from the article).

[2] Barton R. Keyes, Alive and Well: The (Still) Ongoing Debate Surrounding Conceptual Separability in American Copyright Law, 69 Ohio St. L.J. 109, 111 (2008).

[3] Id. at 110.

[4] Eliya, Inc. v. Kohl’s Dep’t Stores, No. 06 Civ 195(GEL), 2006 WL 2645196, at *10 (S.D.N.Y. Sept. 13, 2006) (holding that a specific shoe design was not conceptually separable because the design of the parts of the shoe could not exist independently).

[5] Sepehr Shahshahani, The Design of Useful Article Exclusion: A Way Out of the Mess, 57 J. Copyright Soc’y U.S.A. 859, 864 (2010).

[6] Keyes, supra note 2, at 111.

[7] Varsity Brands, Inc., at 481.

[8] Id. at 481-82.

[9] Id. at 482.

[10] Id.

[11] Id. at 483.

[12] Varsity Brands, Inc., at 484.

[13] Id.

[14] Mark Hannemann, Star Athletica v. Varsity Brands: Supreme Court Evaluating Copyrights in Features of Useful Articles, Shearman (Apr. 7, 2017), http://www.shearman.com/en/newsinsights/publications/2016/11/star-athletica-v-varsity-brands-supreme-court.

[15] Galiano v. Harrah’s Operating Co., Inc., 416 F.3d 411, 419 (5th Cir. 2005) (ruling that designs were not eligible for copyright protection absent any showing that the designs were marketable separately of their practical function as uniforms).

[16] Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010-11 (2017).

[17] Varsity Brands, Inc., 799 F.3d at 471-76.

[18] Id.

[19] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[20] Gene Quinn & Steve Brachmann, Copyrights at the Supreme Court: Star Athletica v. Varsity Brands, IPWatchdog, http://www.ipwatchdog.com/2017/03/22/copyrights-supreme-court-star-athletica-v-varsity-brands/id=79767/.

[21] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[27] Hannemann, supra note 14; Galiano, 416 F.3d at 419.

[28] Masquerade Novelty, Inc. v. Unique Industries, Inc., 912 F.2d 663, 670 (3d Cir. 1990) (holding that a nose mask is not a “useful article” and cannot be copyrighted).

[29] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[30] Keyes, supra note 2, at 111.

[31] Sally M. Donahue, The Copyrightability of Useful Articles: The Second Circuit’s Resistance to Conceptual Separability, 6 Touro L. Rev. 327, 357 (1990).

[32] Quinn & Brachmann, supra note 20.

[33] Star Athletica, L.L.C., 137 S. Ct. at 1010-11.

[34] Hannemann, supra note 14.

The Trump Administration and Nepotism

TLR BLOG

By Patryk O. Rogowski, J.D. Class of 2018 Touro Law Review Junior Staff Member

On January 9, 2017, President Donald J. Trump named Jared Kushner, his son-in-law, as his senior adviser.[1] On April 29, 2017, the White House announced that President Trump’s daughter, Ivanka Trump, will become an unpaid employee in the West Wing.[2] These appointments have raised many questions among the public pertaining to nepotism laws that govern government hiring.[3]

To determine whether President Trump is legally permitted to appoint members of his immediate family to work in the White House, two statutes must be examined.[4] The first is 5 U.S.C. § 3110, which governs nepotism in the federal government.[5] The second is 3 U.S.C. § 105, which pertains specifically to appointments made directly by the president.[6]

Section 3110 was passed by Congress and signed into law by Lyndon B. Johnson on December 17, 1967.[7] The law was a result of then-President John F. Kennedy’s appointment of his brother Robert F. Kennedy to the cabinet position of Attorney General in 1960.[8] Politicians in Washington and the general public were uneasy about this appointment,[9] and several years later, Congress sought to prevent nepotism of this type.[10]

The statute prohibits a federal official from hiring, promoting or recommending the hiring or promoting of any relative to any federal agency or department over which the official exercises authority.[11] For these purposes, the statute defines a “relative” to include both a daughter and a son-in-law.[12] Additionally, the statute explicitly includes the president in its definition of “public official.”[13] Furthermore, the statute defines an “agency” to include an “executive agency.”[14] To determine whether this statute pertains to the hiring of Jared Kushner and Ivanka Trump, the question becomes whether the White House qualifies as an “executive agency” under the statute.[15] The United States Court of Appeals for the District of Columbia Circuit in Haddon v. Walters[16] held that the Executive Residence in the White House is not an “executive agency” under Title 5.[17] This seems to compel the conclusion that the White House as a whole is not considered an “executive agency.”[18]

In 1993, President Bill Clinton appointed his wife, Hillary Rodham Clinton, to head the President’s Task Force on National Health Care Reform.[19] This appointment led to several motions being filed for a preliminary injunction based on anti-nepotism laws.[20] The D.C. Circuit Court found that “[a]lthough section 3110(a)(1)(A) defines agency as ‘an executive agency,’ we doubt that Congress intended to include the White House or the Executive Office of the President.”[21] The Court thus permitted the president to appoint his wife to serve as the head of the task force.[22]

Thus, based on case law, it would appear that Section 3110 does not prohibit the President of the United States from appointing members of his immediate family to serve as senior White House advisers. However, one more statute is relevant in solving this issue.

Section 105 governs the hiring of individuals to work directly for the president.[23] Section 105(a) states, in relevant part, “the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service.”[24] The only limitation on the president’s hiring abilities under Section 105 is a salary cap.[25] Section 105’s language certainly appears to give the president broad authority and wide discretion in appointing his employees and advisers. The use of the phrase “without regard” in the statute appears to indicate that the president occupies a special and unique place in the federal government and is entitled to make appointments of a vast range of individuals, including members of his own family. There have been no judicial opinions interpreting Section 105’s language.

Much public discourse has surrounded President Trump’s appointments of his daughter and son-in-law to high-ranking positions in his administration.[26] To date, no court ruling has either authorized or prohibited the actions taken by President Trump. The case law that is available appears to lean heavily in favor of the appointments made. Furthermore, the plain language of the applicable statutes also appears to lean heavily in favor of President Trump. While strong public discourse on this topic is likely to continue, it is likely that a court will hold these appointments to be lawful.

[1] Glenn Thrush, Jared Kushner Named Senior White House Adviser to Donald Trump, N.Y. Times (Jan. 9, 2017), https://www.nytimes.com/2017/01/09/us/jared-kushner-senior-adviser-white-house-trump.html?_r=0.

[2] Dan Merica, Gloria Borger, Jim Acosta & Betsy Klein, Ivanka Trump is making her White House job official, CNN Politics (Mar. 30, 2017), http://www.cnn.com/2017/03/29/politics/ivanka-trump-white-house-job/.

[3] Nepotism is defined as the “bestowal of official favors on one’s relatives, esp. in hiring; specif., the practice of unfairly giving the best jobs to members of one’s family when one is in a position of power.” Nepotism, Black’s Law Dictionary (10th ed. 2014).

[4] See 5 U.S.C. § 3110 and 3 U.S.C. § 105, which govern the appointment of family members by the President of the United States to work in the White House.

[5] 5 U.S.C. § 3110 (2006).

[6] 3 U.S.C. § 105 (2006).

[7] 5 U.S.C. § 3110.

[8] Josh Zeitz, The Bitter Feud Behind the Law That Could Keep Jared Kushner Out of the White House, Politico (Nov. 17, 2017), http://www.politico.com/magazine/story/2016/11/1976-nepotism-law-lyndon-johnson-bobby-kennedy-trump-kushner-214465.

[9] Id.

[10] It is important to note that the post of Attorney General is a cabinet-level post requiring the approval of the United States Senate. However, most White House adviser positions do not require Senate confirmation. Id.

[11] 5 USC § 3110.

[12] 5 U.S.C. § 3110(a)(3).

[13] 5 U.S.C. § 3110(a)(2).

[14] 5 U.S.C. § 3110(a)(1)(A).

[15] If the White House is not determined to be an “executive agency,” the anti-nepotism statute will not apply. See 5 U.S.C. § 3110.

[16] 43 F.3d 1488 (D.C. Cir. 1995).

[17]Walters, 43 F.3d at 1490.

[18] Id.

[19] Thomas L. Friedman, Hillary Clinton to Head Panel On Health Care, N.Y. Times (Jan. 26, 1993), http://www.nytimes.com/1993/01/26/us/hillary-clinton-to-head-panel-on-health-care.html.

[20] Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993).

[21] Id.

[22] Id.

[23] 3 U.S.C. § 105 (2006).

[24] 3 U.S.C. § 105(a) (2006).

[25] 3 U.S.C. § 105(a)(1) (2006).

[26] See Aaron Blake, Why Donald Trump’s Family Being In The White House Is Problematic, Explained, Washington Post (Nov. 16, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/11/18/why-donald-trumps-family-being-in-the-white-house-is-problematic-explained/?utm_term=.4dc4f0cee7c7.

Is it Time to Legalize Marijuana?

TLR BLOG

By Andrea Laterza, J.D. Class of 2018 Touro Law Review Associate Editor

Mass incarceration has become a disturbing issue in this country.[1] The United States is home to only five percent of the world’s population, yet houses twenty-five percent of the world’s prisoners.[2] “The War on Drugs” has been a direct cause of mass incarceration.[3] Someone is arrested for drug possession every twenty-five seconds, which amounts to 1.25 million drug-related arrests each year.[4] In 2015, there were 574,000 arrests made for marijuana possession whereas 505,681 arrests were made for violent crimes, such as rape and murder.[5] Thus, there were more people arrested for mere possession of marijuana than for heinous, violent crimes.[6]

In 1972, there were less than 350,000 people incarcerated; however, due to the War on Drugs, that number skyrocketed by approximately 500%, amounting to over 2,000,000 people incarcerated today.[7] Despite Nixon and subsequent presidents’ intentions, the War on Drugs has been a failure.[8] Its wrath left U.S. prisons overcrowded, filthy, and a huge expense for taxpayers.[9] If marijuana were to be legalized, the number of inmates would reduce significantly, thereby saving the government hundreds of millions of dollars.[10] Not only would the government save money, but it would also profit.[11] Colorado, one of the several states that has legalized marijuana for recreational use, generated approximately $70 million in tax revenue during the first fiscal year that cannabis was legally sold and taxed.[12]

Aside from the monetary incentive, there may be a constitutional reason to end the criminalization of marijuana.[13] Arguably, the right to use marijuana falls within the recognized rights of privacy and autonomy.[14] The Supreme Court has repeatedly held that the Constitution “create[s] zones of privacy,” which extend to the home and personal bodily choices.[15] The Court has found that the rights to choose abortion, to refuse medical treatment, to use contraception, and to engage in consensual sodomy all fall within the “penumbra” of privacy and autonomy rights.[16] Using marijuana is analogous to these recognized rights because it is also a private, bodily choice.[17] In fact, one state has already held that using marijuana falls within the privacy right of the Constitution.[18] The Supreme Court of Alaska emphasized the importance of privacy within one’s home and held that “possession of marijuana by adults at home for personal use is constitutionally protected.”[19] The court based its holding, in part, on scientific research demonstrating that marijuana is not at all harmful or dangerous to the user or anyone else; therefore, Alaska had no legitimate interest in its prohibition.[20]

Even if using marijuana is not a privacy right, it is arguably a fundamental liberty “deeply rooted in this Nation’s history and tradition.”[21] Marijuana can be traced all the way back to 2737 B.C..[22] The Chinese emperor began prescribing marijuana for ailments, such as gout, rheumatism, and malaria.[23] The drug’s popularity spread across the globe and was used to treat all kinds of pain from earaches to childbirth.[24] In the 1600’s, the plant made its way to the United States where it became a major cash crop.[25] Hemp was used for many purposes, such as medicine, construction, and paper products.[26] In fact, the Declaration of Independence, signed by the Founding Fathers themselves, was written on hemp.[27] Even George Washington and Thomas Jefferson grew hemp.[28] The plant only became illegal in the 1900’s after it was negatively associated with Mexican immigrants.[29] The government falsely vilified marijuana as a drug linked to crime and insanity.[30] The American Medical Association even opposed the government’s position on marijuana because doctors wished to prescribe the drug.[31] Marijuana is not dangerous; no one has ever died from it.[32] In fact, experts believe marijuana has significant health benefits, such as treating glaucoma, speeding up metabolism, controlling seizures, and preventing cancer.[33] Nevertheless, the drug has been unscientifically outlawed.[34]

Today, marijuana is federally categorized as a schedule I drug, alongside hard drugs like heroin and cocaine.[35] According to the Supremacy Clause, federal law trumps state law, which means that even if one is in a state where marijuana is legal, he or she could still face federal prosecution.[36] A drug conviction may prevent citizens from taking out student loans, securing a job, renting a home, obtaining welfare benefits, or even voting.[37] It is time to end the stigma surrounding marijuana because the drastic effects of its criminalization are affecting millions of Americans.[38]

[1] See infra note 2 and accompanying text.

[2] Pamela Engel, Watch How Quickly the War on Drugs Changed America’s Prison Population, Bus. Insider (Apr. 23, 2014, 1:19 PM), http://www.businessinsider.com/how-the-war-on-drugs-changed-americas-prison-population-2014-4.

[3] Fareed Zakaria, Incarceration Nation: The War on Drugs Has Succeeded Only in Putting Millions of Americans in Jail, Time (Apr. 2, 2012), http://content.time.com/time/magazine/article/0,9171,2109777-1,00.html.

[4] Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, ACLU Update (ACLU/ Human Rights Watch, New York, N.Y.), Oct. 5, 2016, at 2, 4.

[5] Id. at 5.

[6] Id.

[7] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 8 (The New Press 2012).

[8] Ray Williams, Why “The War on Drugs” Has Failed, Psychology Today (June 6, 2011), https://www.psychologytoday.com/blog/wired-success/201106/why-the-war-drugs-has-failed.

[9] Saki Knafo, 10 Ways to Reduce Prison Overcrowding and Save Taxpayers Millions, Huffington Post (Nov. 8, 2013, 7:30 AM), http://www.huffingtonpost.com/2013/11/08/prison-overcrowding_n_4235691.html.

[10] Id.

[11] See infra note 12 and accompanying text.

[12] Tanya Basu, Colorado Raised More Tax Revenue from Marijuana Than from Alcohol, Time (May 18, 2016, 12:49 PM), http://time.com/4037604/colorado-marijuana-tax-revenue/.

[13] See infra notes 14, 21 and accompanying text.

[14] See infra notes 15-20 and accompanying text.

[15] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[16] Lawrence v. Texas, 539 U.S. 558, 578-79 (2003); Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 304 (1990); Roe v. Wade, 410 U.S. 113, 166 (1973); Griswold, 381 U.S. at 484.

[17] Id.

[18] Ravin v. State, 537 P.2d 494, 511 (Alaska 1975).

[19] Id.

[20] Id. at 506-12.

[21] Washington v. Glucksberg, 521 U.S. 702, 703 (1997).

[22] Patrick Stack, A Brief History of Medical Marijuana, Time (Oct. 21, 2009), http://content.time.com/time/health/article/0,8599,1931247,00.html.

[23] Id.

[24] Id.

[25] John Dvorak, America’s Harried Hemp History, Hemphasis (2004), http://www.hemphasis.net/History/harriedhemp.htm.

[26] Matt A.V. Chaban, Cannabis Construction: Entrepreneurs Using Hemp for Home-Building, N.Y. Times (July 6, 2015), https://www.nytimes.com/2015/07/07/nyregion/cannabis-construction-entrepreneurs-use-hemp-in-home-building.html?_r=0; Stack, supra note 21.

[27] Seeley v. State, 940 P.2d 604, 628 n.10 (Wash. 1997).

[28] Id.

[29] Tim Weber, Would Government Prohibition of Marijuana Pass Strict Scrutiny?, 46 Ind. L. Rev. 529, 543 (2013).

[30] Id.

[31]Id.

[32] Ravin, 537 P.2d at 508 (comparing cannabis to alcohol and barbiturates, which are legal, and do kill people).

[33] Jennifer Welsh & Kevin Loria, 23 Health Benefits Of Marijuana, Business Insider (Apr. 20, 2014, 3:03 PM), http://www.businessinsider.com/health-benefits-of-medical-marijuana-2014-4/#it-can-be-used-to-treat-glaucoma-1.

[34] Dr. Malik Burnett & Dr. Amanda Reiman, How Did Marijuana Become Illegal in the First Place?, Drug Policy Alliance (Oct. 9, 2014), http://www.drugpolicy.org/blog/how-did-marijuana-become-illegal-first-place.

[35] 21 U.S.C. § 812 (2012).

[36] U.S. Const. art. VI, cl. 2.

[37] Every 25 Seconds, supra note 4, at 11.

[38] See supra notes 3-5, 7, 9, 20, 26, 29-31, 37 and accompanying text.