An Administrative Solution to the Student Loan Debt Crisis

To say that the student loan debt crisis is out of control is a massive understatement. Although solutions such as Public Service Loan Forgiveness and the recent temporary payment/interest rate freeze have provided some relief for borrowers, more can be done. Of course, as with any large outlay of taxpayer dollars, opposition is sure to be heated. Given the current political climate, the likelihood of any legislative fixes seems unlikely. But what if there was an administrative solution that could do more to address this crisis without the cost of the legislative process? This essay proposes such a solution. It explains how, through an executive order and changes in the Federal Acquisition Regulation, the Government can provide additional relief to the 5.3 million people who work for federal contractors. Further, this essay explains why such an approach might be more advantageous than traditional legislation and counters likely rebuttals

The New Qualified Immunity Quandary

With increased media coverage of excessive force cases, we may someday achieve meaningful reform of the qualified immunity doctrine. But with Congress’s inability to accomplish major legislation in the current political climate, it is doubtful that qualified immunity will be reformed, much less abolished, anytime in the near future. Unless—or until—Congress figures out a way to meaningfully reform qualified immunity, we are left with the patchwork of decisions from the federal appellate courts. Qualified immunity cases and scholarship are riddled with wildly varying approaches to what constitutes “clearly established law” and whether courts should return the mandatory sequencing in Saucier v. Katz. Qualified immunity, for better or worse, is the “gift” that keeps on giving. These issues aside, it is no secret that qualified immunity protects “all but the plainly incompetent.” Should it, however, protect those who—for competency or other reasons—choose not to raise the defense? Enter a new quandary: sua sponte qualified immunity. As more § 1983 cases crowd the federal docket and as the Supreme Court’s disdain for these cases grows, some appellate courts have been raising the issue of qualified immunity sua sponte to either avoid constitutional issues or simply in an attempt to clear their dockets. I propose that this practice is ripe for Supreme Court’s review and the correct approach is for appellate courts not to raise qualified immunity sua sponte. I argue that failure if the Supreme Court fails to invalidate sua sponte qualified immunity, plaintiffs seeking vindication of constitutional rights under § 1983 will effectively be left without recourse

Reforming Federal Vacancies

The Federal Vacancies Reform Act (FVRA) is a powerful but complicated and overlooked statute. At its best, it is a pragmatic mechanism designed to fill vacancies in executive agencies. But the complicated nature of the FVRA has paved the way for Presidents to manipulate its numerous loopholes in effect bypassing Senate approval when appointing federal officers. These loopholes raise several issues that threaten the existence of the FVRA—including invalidation under the Constitution. Further, regulated entities and citizens should also be concerned about invalid rule promulgation and enforcement actions, increased procurement costs, lack of agency transparency, increased risk of agency capture, and lack of judicial remedies. But invalidation of the FVRA would create chaos and disruption—negating a useful and necessary mechanism—meant to keep administrative agencies running when vacancies occur. Thus, this Note argues that these loopholes should be closed to save the FVRA from invalidation and offers potential legislative solutions to accomplish this task

Crying Wolves, Paper Tigers, and Busy Beavers—Oh My!: A New Approach to Pro Se Prisoner Litigation

To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons are atrocious. Prisons are often overcrowded, “which in turn leads to an increase in violence, neglect, and gross mistreatment.

The Gun Subsidy

Despite thousands of gun deaths annually, the United States has failed to reach consensus on any means of addressing the public health crisis that is gun violence. The issue has become politically polarized, constitutionalized, and an object of pessimism and despair. We propose a regulatory system in which gun manufacturers would be strictly liable to a federal fund for deaths caused by their guns, paired with a subsidy that will serve to ensure the availability of guns sufficient to meet the rights the Supreme Court has found in the Second Amendment. While strict liability of this kind can indeed serve its traditional purposes of spreading costs and incentivizing better designs and processes, our primary goal is to alter the political economy around the issue of gun violence more generally. If manufacturers bear an increasing share of the costs created by their products, they will endeavor not only to produce products and advertise them in ways likely to reduce those costs but also to advocate for regulations that may do the same. While our proposal may not depolarize the issue entirely, it at least attempts to focus the minds and experience of those who know guns best on effective means of reducing guns’ social costs

Solidifying Supremacy Clause Immunity

States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy Clause immunity. As the issue has seldom arisen, scholarship and case law on the subject is limited. In light of the rise in federal-state disputes, and considering the competing constitutional concerns and the criminal charges federal officers could face, a solidified framework for handling these types of cases is desperately needed. Moreover, these cases often involve motions to dismiss under Federal Rule of Criminal Procedure 12(b)(6), which presents a unique procedural question: whether a judge or jury should decide disputed issues of material fact. We propose a framework wherein juries should decide disputed issues of material fact in Supremacy Clause immunity cases. Further, we propose a Supremacy Clause immunity test that more thoroughly defines when (1) a federal officer is authorized by federal law to take certain actions, and (2) when a federal officer’s actions are “necessary and proper.” While our proposals do not solve every foreseeable problem in a Supremacy Clause immunity case, they do prevent the issues associated with the patchwork approach adopted by Supremacy Clause immunity’s cousin—qualified immunity

Reforming Federal Vacancies

The Federal Vacancies Reform Act (FVRA) is a powerful but complicated and overlooked statute. At its best, it is a pragmatic mechanism designed to fill vacancies in executive agencies. But the complicated nature of the FVRA has paved the way for Presidents to manipulate its numerous loopholes in effect bypassing Senate approval when appointing federal officers. These loopholes raise several issues that threaten the existence of the FVRA—including invalidation under the Constitution. Further, regulated entities and citizens should also be concerned about invalid rule promulgation and enforcement actions, increased procurement costs, lack of agency transparency, increased risk of agency capture, and lack of judicial remedies. But invalidation of the FVRA would create chaos and disruption—negating a useful and necessary mechanism—meant to keep administrative agencies running when vacancies occur. Thus, this Note argues that these loopholes should be closed to save the FVRA from invalidation and offers potential legislative solutions to accomplish this task

Solidifying Supremacy Clause Immunity

States have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy Clause immunity. As the issue has seldom arisen, scholarship and case law on the subject is limited. In light of the rise in federal-state disputes, and considering the competing constitutional concerns and the criminal charges federal officers could face, a solidified framework for handling these types of cases is desperately needed. Moreover, these cases often involve motions to dismiss under Federal Rule of Criminal Procedure 12(b)(6), which presents a unique procedural question: whether a judge or jury should decide disputed issues of material fact. We propose a framework wherein juries should decide disputed issues of material fact in Supremacy Clause immunity cases. Further, we propose a Supremacy Clause immunity test that more thoroughly defines when (1) a federal officer is authorized by federal law to take certain actions, and (2) when a federal officer’s actions are “necessary and proper.” While our proposals do not solve every foreseeable problem in a Supremacy Clause immunity case, they do prevent the issues associated with the patchwork approach adopted by Supremacy Clause immunity’s cousin—qualified immunity