American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs

In American Insurance Association v. Garamendi, the U.S. Supreme Court invalidated California\u27s Holocaust Victim Insurance Relief Act (HVIRA), which required insurance companies doing business in California to disclose all policies they or their affiliates sold in Europe between 1920 and 1945. According to the Court, the state\u27s law unconstitutionally interfered with the foreign affairs power of the national government. The decision was easily overlooked in a Term filled with landmark cases dealing with affirmative action and sexual privacy. What coverage the case did receive emphasized its federalism aspects, and excited little reaction because the result seemed intuitively appropriate given the federal government\u27s interest in conducting foreign affairs. We argue in this paper, however, that Garamendi is more important - and problematic - when seen as a case about separation of powers. In particular, we argue that the decision expands presidential control over foreign affairs, not only at the expense of the states, but also and more critically at the expense of Congress and the Senate. This arises from the Court\u27s invention of a novel constitutional power of executive preemption - that is, an independent ability of the President to override state laws that interfere with executive branch policies in foreign affairs. Until Garamendi, no one had thought that a mere executive branch policy, unsupported by the formal or even tacit approval of any other branch, could have the effect of preemptive law. As a result, one need not be a defender of foreign policy federalism, nor a critic of executive foreign affairs powers, to have grave reservations about the decision\u27s implications for separation of powers, federalism and constitutional theory. It is uncontroversial that state laws and policies must give way to the foreign affairs objectives of the national government. The critical question, though, is how these overriding federal goals are developed and identified. We argue that the Garamendi decision has at least three separate and substantial ill-effects upon this process. First,executive preemption conveys to the President the power to decide which state laws affecting foreign affairs survive and which do not. This concentrates foreign affairs power in the President in a way not contemplated by the Constitution\u27s Framers, who sought to separate executive power from legislative power. Second, Garamendi seemed to make executive agreements the functional equivalents of congressional statutes; this functional equivalency may hasten the decline of the treaty as a foreign policy-making tool, with a concomitant decline in the opportunities for Congress - the Senate, in particular - to shape foreign policy. Third, the decision implicated the relationship between the states and the federal government in foreign affairs, but did so in a way that provided essentially no guidance for the future. Part I of this Article discusses the factual setting of the Holocaust insurance claims that formed the background of the case. Part II outlines the constitutional law of federal-state relations in foreign affairs as it stood before the Garamendi decision. Part III describes the Supreme Court\u27s decision, and points out its discontinuity with prior decisions. In Part IV we turn to the troubling structural implications of Garamendi, which we regard as occurring primarily in the field of separation of powers. We conclude that the Court ended up far from the text, structure and history of the Constitution. In Part V we address the decision\u27s implications for federalism, particular the dangers of concentrating preemptive power in the executive branch. Part VI relates the Garamendi case to the wider theoretical debates of modern foreign affairs law and constitutional interpretation. In contrast to other federalism and separation of powers cases, the Garamendi Court paid little attention to text or structure in analyzing the constitutional questions presented. More surprising, perhaps, is the Court\u27s complete lack of interest in what light history might shed on the foreign affairs issues before it. But neither is Garamendi an exercise in common law doctrinal evolution, because it owes essentially nothing to prior cases or practice, except as rhetorical cover. Garamendi\u27s near-exclusive attention to loose interpretations of prior case law and its lack of sensitivity to text, history, and structure, suggest to us a danger in common law constitutional interpretation as a preferred approach to constitutional interpretation and adjudication in foreign affairs controversies

Anti-Evasion Doctrines in Constitutional Law

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - implement constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the constitutional operative proposition, but must then design decision rules that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this Article, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts - usually designed as standards, as opposed to rules - that supplement other doctrines (designed as rules) to implement particular constitutional principles. AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and discussing the characteristics the forms share, this Article also seeks to describe the benefits and costs to constitutional law resulting from AEDs, as well as their implications for doctrinal formation more generally. We back our claim about the omnipresence and pedigree of AEDs in Part II with examples from a broad swath of constitutional law. AEDs supplement rule-like decision rules with decision rules that tend to resemble standards. In Part III we discuss the benefits of AEDs and the tradeoffs for doctrine in their widespread use. AEDs are designed to help optimize enforcement of constitutional principles - by addressing problems with rules, for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, but that complexity can also increase decision costs for courts and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits. We discuss the implications of AEDs for constitutional doctrine generally in Part IV. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by abandoning the \u27formulaic Constitution in favor of simple, predictable, and easy-to-apply rules. Further, the presence of AEDs furnishes strong evidence for Frederick Schauer\u27s convergence hypothesis, which holds that [w]hen authorised to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules, and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously

Anti-Evasion Doctrines in Constitutional Law

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - implement constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the constitutional operative proposition, but must then design decision rules that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this Article, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts - usually designed as standards, as opposed to rules - that supplement other doctrines (designed as rules) to implement particular constitutional principles. AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and discussing the characteristics the forms share, this Article also seeks to describe the benefits and costs to constitutional law resulting from AEDs, as well as their implications for doctrinal formation more generally. We back our claim about the omnipresence and pedigree of AEDs in Part II with examples from a broad swath of constitutional law. AEDs supplement rule-like decision rules with decision rules that tend to resemble standards. In Part III we discuss the benefits of AEDs and the tradeoffs for doctrine in their widespread use. AEDs are designed to help optimize enforcement of constitutional principles - by addressing problems with rules, for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, but that complexity can also increase decision costs for courts and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits. We discuss the implications of AEDs for constitutional doctrine generally in Part IV. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by abandoning the \u27formulaic Constitution in favor of simple, predictable, and easy-to-apply rules. Further, the presence of AEDs furnishes strong evidence for Frederick Schauer\u27s convergence hypothesis, which holds that [w]hen authorised to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules, and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously

Judicial Doctrine as Risk Regulation

Much of the literature on risk regulation concerns first-order risks--e.g., those addressed by environmental law or workplace safety rules. But scholars recently have suggested that risk regulation can provide a helpful framework for thinking about second-order, or political, risks arising from allocations of power and institutional design. Although a few commentators have utilized this perspective to suggest connections between risk regulation and particular areas of constitutional law, in this essay we take a broader view. Building on the existing literature, we argue that the selection of constitutional decision rules is a judicial effort to regulate the political risk that government officials will violate constitutional principles. After making the case that it is helpful to view judicial doctrinal formation as a species of political risk regulation, we discuss some implications of this risk regulation model and pose some questions for future research. We conclude that the risk regulation model reinforces the notion that the formation of doctrine is a temporally extended process, rather than a one-time event, and it provides a metric by which that doctrine can be evaluated. Additionally, the risk regulation model helps explain some of the more commonly critiqued features of constitutional law. Finally, the risk regulation model raises important questions that merit further investigation: (1) Should we trust judicial perceptions of and responses to political risk? (2) What influences risk assessment among judges, and are those influences (and resulting assessments) normatively defensible? (3) What connection, if any, exists between judicial risk assessment and the myriad doctrinal formulae employed by the Supreme Court

The Impact of Adverse Childhood Experiences (ACEs) and Resiliency among Community Pediatricians and Pediatric Trainees and Attendings in a Pediatric Teaching Hospital

Adverse Childhood Experiences (ACEs) are “potentially traumatic events that can have negative, lasting effects on health and well-being� (Sack, 2014). The experiences, which often coincide with poverty, single-parenthood, and volatile home-lifestyles, range in magnitude from sexual abuse to parental divorce. These experiences cause youth, aged birth to 18 years old, trauma and, subsequently, toxic stress. Adverse Childhood Experiences have been linked to risky health behaviors, such as substance abuse, unprotected sexual activities, chronic diseases, such as diabetes, obesity, and certain cancers, low life potential, and early death (Centers for Disease Control and Prevention (CDC), 2016, About). Consequently, there has been an increased interest in gaining a better understanding of the short term and long-term impacts of ACEs across various populations, as well as furthering comprehension surrounding resiliency and the factors that contribute to individuals overcoming these traumatic experiences. This study will provide an insight into the Adverse Childhood Experiences and Resiliency levels of current Vidant Pediatric Residents and Attendings and Pitt County Community Pediatricians, while also gaining an increased insight on the current knowledge and practices being used to address ACEs in patients, today. As helpers, healers, and physicians, it is critical to understand the reasons behind one’s purpose in choosing their career path, and this study will provide clarification into this topic, as well.B.S

Applications of Photoinduced Electron Transfer Chemistry: Photoremovable Protecting Groups and Carbon Dioxide Conversion

Traditional organic chemistry has long been dominated by ground state thermal reactions. The alternative to this is excited state chemistry, which uses light to drive chemical transformations. There is considerable interest in using this clean renewable energy source due to concerns surrounding the combustion byproducts associated with the consumption of fossil fuels. The work presented in this text will focus on the use of light (both ultraviolet and visible) for the following quantitative chemical transformations: (1) the release of compounds containing carboxylic acid and alcohol functional groups and (2) the conversion of carbon dioxide into other useable chemicals. Chapters 1-3 will introduce and explore the use of photoremovable protecting groups (PPGs) for the spatiotemporal control of molecular concentrations. Two new PPGs are discussed, the 2,2,2-tribromoethoxy group for the protection of carboxylic acids and the 9-phenyl-9-tritylone group for the protection of alcohols. Fundamental interest in the factors that affect C–X bond breaking has driven the work presented in this text for the release of carboxylic acid substrates. Product analysis from the UV photolysis of 2,2,2-tribromoethyl-(2′-phenylacetate) in various solvents results in the formation of H–atom abstraction products as well as the release of phenylacetic acid. The deprotection of alcohols is realized through the use of UV or visible light photolysis of 9-phenyl-9-tritylone ethers. Central to this study is the use of photoinduced electron transfer chemistry for the generation of ion diradicals capable of undergoing bond-breaking chemistry leading to the release of the alcohol substrates. Chapters 4 and 5 will explore the use of N-heterocyclic carbenes (NHCs) as a catalyst for the photochemical reduction of carbon dioxide. Previous experiments have demonstrated that NHCs can add to CO2 to form stable zwitterionic species known as N-heterocylic-2-carboxylates (NHC–CO2). Work presented in this text illustrate that the stability of these species is highly dependent on solvent polarity, consistent with a lengthening of the imidazolium to carbon dioxide bond (CNHC–CCO2). Furthermore, these adducts interact with excited state electron donors resulting in the generation of ion diradicals capable of converting carbon dioxide into formic acid

Microwave Temperature Profiler Mounted in a Standard Airborne Research Canister

Many atmospheric research aircraft use a standard canister design to mount instruments, as this significantly facilitates their electrical and mechanical integration and thereby reduces cost. Based on more than 30 years of airborne science experience with the Microwave Temperature Profiler (MTP), the MTP has been repackaged with state-of-the-art electronics and other design improvements to fly in one of these standard canisters. All of the controlling electronics are integrated on a single 4 ~5-in. (.10 ~13- cm) multi-layer PCB (printed circuit board) with surface-mount hardware. Improved circuit design, including a self-calibrating RTD (resistive temperature detector) multiplexer, was implemented in order to reduce the size and mass of the electronics while providing increased capability. A new microcontroller-based temperature controller board was designed, providing better control with fewer components. Five such boards are used to provide local control of the temperature in various areas of the instrument, improving radiometric performance. The new stepper motor has an embedded controller eliminating the need for a separate controller board. The reference target is heated to avoid possible emissivity (and hence calibration) changes due to moisture contamination in humid environments, as well as avoiding issues with ambient targets during ascent and descent. The radiometer is a double-sideband heterodyne receiver tuned sequentially to individual oxygen emission lines near 60 GHz, with the line selection and intermediate frequency bandwidths chosen to accommodate the altitude range of the aircraft and mission