Julia Johnson

Cam Barrett, a now-grown child of a mommy vlogger, testified to the Washington State Legislature: “When I was nine years old, the intimate details of my first period were shared online.” She spoke in support of passing HB 1627, which would legally protect minor children featured in monetized online content. Over the past decade, parents have increasingly quit their jobs to earn a living by posting videos of their children online. Through account monetization and influencer-branding deals, mommy vlogging can be lucrative. The creator economy is already valued at $250 billion worldwide and is expected to reach nearly half-a-trillion dollars by 2027. Children—by no choice of their own—continue to play a significant part in this industry.^[1]

Child labor laws lag woefully behind in protecting children featured in monetized online content. Illinois recently passed legislation to be effective on July 1, 2024, the first of its kind to afford protections to children featured in vlogs. The law requires parents who include their children in monetized videos to set aside a portion of the earned income and creates a cause of action for enforcement.^[2] States like Washington, Pennsylvania, Ohio, Missouri, Minnesota, Maryland, Georgia, Arizona, and California are introducing similar legislation, but the ultimate goal should be enacting these protections at a federal level.^[3]

An amendment to the Fair Labor Standards Act would properly address the uncompensated, forced child labor in the child-influencing industry.^[4] The Fair Labor Standards Act prohibits employing children under the age of fourteen.^[5] However, two exceptions leave children in monetized videos unprotected. First, the minimum age requirements do not apply to children under the age of fourteen employed by their parents or guardians, excluding certain dangerous occupations.^[6] This exception must be amended if federal law were to ban posting children in monetized online content.^[7]

Second, child labor laws do not apply to children employed as actors or performers “in motion pictures or theatrical productions, or in radio or television productions.”^[8] This exception, however, would not be applicable to children featured in monetized online content because homemade social media videos are profoundly distinct from the activities listed in the statute.^[9]

Though five states have adopted laws requiring parents of “child actors or performers” to put a portion of their child’s earnings into a trust fund,^[10] these laws do not reach children featured in monetized online content. While Illinois leads the way with Public Act 103-0556, a federal law would be most effective to achieve universal protection for children.^[11]

The root of concern for children in monetized online content lies in consent. Advocates for legislative action not only want children to be compensated for their work, but also want to ensure children have control over their digital footprints and can freely choose whether or not they want to work.^[12] Leaving regulation up to states will undoubtedly result in significant inconsistencies. Inconsistent provisions open the door to inadequate protections for children once they reach the age of majority. For example, though the Illinois law provides an exemplary framework for child compensation, a key provision was removed before it passed. This provision, a “right to be forgotten,” would have given children the right to delete content they were featured in as minors upon reaching the age of eighteen.^[13] The “right to be forgotten” provision is crucial as society gains awareness of a digital footprint’s life-altering impact. Cam Barrett’s tearful plea to the legislature illustrates the profound harm to children that results when their most vulnerable moments are broadcasted for public consumption and critique. 

A comprehensive ban of monetized online content featuring children would be most protective of children’s right to privacy. However, social media giants would likely resist. Powerful social media corporations have successfully squelched legislation to increase online safety for children by claiming a right to freedom of speech;^[14] but social media companies would not just oppose a ban on purely principled grounds.^[15] Videos featuring children receive heavier foot traffic,^[16] and a ban on child-featured content would be a blow to industry revenue. 

A realistically attainable model law was adopted by the French Parliament in 2020. This law requires government authorization before parents can post their children in videos if the work creates a labor relation that involves the child.^[17] When parents seek authorization, they receive important information about their child’s rights and the consequences associated with posting their likeness online.^[18] Additionally, the French law allocates profits toward trust accounts for the children and allows them to exercise their “right to be forgotten” even before they turn eighteen.^[19] Congress should look to this law as model legislation that fairly considers public interests and establishes uniform protections and expectations among states. Its model protections would balance parental rights to post their children^[20] with the parental responsibility to refrain from exploiting them. 

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^[1] Similarly, former child actors Drake Bell and Jeannette McCurdy have spoken out against the verbally, emotionally, and sexually abusive nature of the industry through documentary-series Quiet on Set and McCurdy’s book I’m Glad My Mom Died. See Anne Branigin & Samantha Chery, “Quiet on Set” Alleges a “Dark Underbelly” at Nickelodeon, Wash. Post: Style (March 25, 2024, 12:19 PM), https://www.washingtonpost.com/style/2024/03/23/quiet-on-set-nickelodeon-dan-schneider-drake-bell/. As the child entertainment industry faces heightened scrutiny, it is important to note that whether on set or at home, children can always be exploited. 

^[2] This law is only applicable to children under the age of sixteen featured in at least thirty percent of monetized online content produced within a thirty-day period, measured by the percentage of time the child’s likeness, name, or photograph is visually depicted or the subject of oral narration compared to the total length of the video. See Samantha Murphy Kelly, Illinois Passes a Law that Requires Parents to Compensate Child Influencers, CNN: Business (Aug. 16, 2023, 11:51 AM), https://www.cnn.com/2023/08/16/tech/kid-influencer-law/index.html. The child would be entitled to fifty percent of earnings per video proportionate to the time they were featured in the video. See id. For example, a child featured in fifty percent of a video would be entitled to twenty-five percent of the video’s earnings. See id. Section 12.6(c) provides for a private cause of action, allowing a child to sue his/her parents if they knowingly or recklessly fail to follow the provisions regarding the child’s trust account. See also Act of July. 1, 2024, Public Act No. 103-0556, § 5, 820 I.L.C.S. 205.

^[3] See generally State-by-State Progress, Quit Clicking Kids, https://quitclickingkids.com/state-by-state-progress/ (last visited Apr. 9, 2024).

^[4] See Melanie N. Fineman, Note, Honey I Monetized the Kids: Commercial Sharenting and Protecting the Rights of Consumers and the Internet’s Child Stars, 111 Geo. L.J. 847, 877–81 (2023). See also United States v. Darby, 213 U.S. 100, 118, 125–26 (1941) (holding that the FLSA was within Congress’s power to regulate interstate commerce).

^[5] See 29 C.F.R. § 570.2(a)(1)(i) (2023).

^[6] See 29 C.F.R. § 570.2(a)(2) (2023).

^[7] See Fineman, supra note 4, at 877–78.

^[8] 29 U.S.C. § 213(c)(3).

^[9] See Fineman, supra note 4, at 878.

^[10] See id. at 879.

^[11] See id. at 887.

^[12] See Amber Edney, “I Don’t Work for Free”: The Unpaid Labor of Child Social Media Stars, 32 U. Fla. J.L. & Pub. Pol’y 547, 559–60 (2022).

^[13] HB 1627 retains a “right to be forgotten” provision. H.R. 1627 68th Leg., Reg. Sess. (Wash. 2023).

^[14] For example, NetChoice recently represented a number of online businesses, including Meta, TikTok, Google, and Amazon, and was granted a preliminary injunction against a California law meant to protect children when accessing the internet by arguing that it violates the First Amendment by failing the standard for commercial speech scrutiny. See Order Granting Motion for Preliminary Injunction at 1, 18, 34, NetChoice v. Bonta, No. 22-cv-08861-BLF (N.D. Cal. Sept. 18, 2023).

^[15] For example, an industry group might challenge a blanket ban by arguing that it limits the parents’ freedom of speech because online content is covered by the First Amendment. See Edney, supra note 12, at 567–68.

^[16] See Danya Hajjaji, YouTube Lets Parents Exploit Their Kids For Clicks, Newsweek (Oct. 4, 2021 9:00 AM), https://www.newsweek.com/youtube-lets-lawless-lucrative-sharenting-industry-put-kids-mercy-internet-1635112 (reporting that “videos with children who appear to be under the age of 13 received three times as many views as other videos”).

^[17] See France: Parliament Adopts Law to Protect Child “Influencers” on Social Media, Library of Congress (Oct. 30, 2020), https://www.loc.gov/item/global-legal-monitor/2020-10-30/france-parliament-adopts-law-to-protect-child-influencers-on-social-media/.

^[18] See id.

^[19] See id.

^[20] See Stacey B. Steinberg, Sharenting: Children’s Privacy in the Age of Social Media, 66 Emory L.J. 839, 861 (2017) (applying parents’ constitutional right to control their children’s upbringing to the decision to post their children online).

Aeron Scales

The brown-headed cowbird is an unusual bird. Instead of raising its own young, it lays its eggs in the nests of other birds. Cowbirds usually choose smaller passerines (songbirds), but they are not picky—they have been recorded parasitizing at least 220 species’ nests, including unsuitable host species such as sandpipers, owls, and hawks.^[1] This is not a mutually-beneficial relationship. The cowbird usually destroys at least one of the host’s eggs to make room for its own, and the cowbird’s fast-growing chicks often starve their smaller nestmates.^[2] The cowbirds also often retaliate against hosts who eject the cowbird eggs by destroying the host’s entire clutch.^[3]

Through these racketeering behaviors, the cowbird has contributed to the endangerment of several songbird species that have already otherwise been made vulnerable due to deforestation and development.^[4] The cowbird is more insidious than other invasive birds, like the bluebird-murdering house sparrow, because the cowbird is actually native to North America.^[5] Although the federal government has carved out an exception for cowbirds (along with other common agricultural pest species), as a native migratory bird, the cowbird is protected under the Migratory Bird Treaty Act of 1918, which generally prohibits “tak[ing] (including killing, capturing, selling, trading, and transport) of protected migratory bird species without prior authorization by the Department of Interior U.S. Fish and Wildlife Service.”^[6]

The cowbird is not always immediately recognized as a threat to vulnerable species. For example, when the southwestern willow flycatcher was being considered for endangered status in 1995, one of the arguments against its inclusion on the endangered species list was that the cowbird and the flycatcher are “positively associated” and “can coexist.”^[7] The Fish and Wildlife Service determined that the cowbird did pose a substantial threat to the flycatcher, concluding that, “cowbirds and [the southeast willow flycatcher] are positively associated because cowbirds require, and therefore associate with, prospective hosts.”^[8]

Cowbirds, which historically followed bison in the Great Plains—feeding on insects disturbed by the bison’s hooves—now follow cattle across the country.^[9] In the past, many of the now-vulnerable songbirds nested deep inside old-growth forests and were thus largely shielded from cowbird parasitism.^[10] However, the amount of interior forest across the United States has been dramatically reduced since European settlement and the accompanying land clearing and habitat fragmentation.^[11]

Cowbird trapping programs have been implemented to protect four at-risk songbird species. These programs are still necessary to protect the endangered least Bell’s vireo and southwestern willow flycatcher, and the nearly-endangered black-capped vireo.^[12]The greatest success story is the Kirtland’s warbler, a particularly vulnerable species whose nests were heavily parasitized by cowbirds. The warbler was removed from the endangered species list in 2019 after its population increased from “a low of 167 males in 1987 to over 2300 males.”^[13]

Unfortunately, however, the cowbird is not the only threat to the Kirtland’s warbler. Cowbird trapping was able to save the warbler from extinction, but their population did not increase for almost 20 years after trapping began. Part of what made the warbler so vulnerable to cowbird parasitism was their extremely specialized breeding strategy—the Kirtland’s warbler nests exclusively in young jack pine forests in central Michigan, an environment that is only created naturally through “large, intense wildfires.”^[14] It wasn’t until a prescribed burn in 1980 escaped control, that enough of this habitat was created to help recoup the warbler’s breeding habitat.^[15] Additionally, the warbler may soon be at risk in its wintering habitat, the Bahamas, due to climate change causing sea levels to rise.^[16]

Other species negatively impacted by the brown-headed cowbird share similar stories—habitat loss from deforestation is the more direct cause of the least Bell’s vireo and southwestern willow flycatcher’s endangered status, and federal conservation funding is lost once a species escapes its endangered species status.^[17] Cowbird trapping is an expensive stopgap to treat a symptom of a larger issue. Critical habitats for birds, such as interior forests and wetlands, must be protected. Some states and the United States Department of Agriculture have implemented programs that incentivize landowners to preserve and maintain forests on private land,^[18] and the Department of the Interior recently proposed a new conservation rule that would protect mature and old-growth forests on federal land.^[19] In an era in which environmental protections can depend on election results, it is crucial for the continued survival of vulnerable species that legislators and the courts be vigilant and aware of the complex threats posed to birds (and other wildlife) by land development and climate change.^[20]

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^[1] See Lawrence D. Igl & Douglas H. Johnson, Brown-headed Cowbird, Molothrus ater, Parasitism and Abundance in the Northern Great Plains, 121 Canadian Field-Naturalist 239, 245 (2007) (a study examining brown-headed cowbird nest-parasitism, including choice of hosts).

^[2] See Lisa Petit, Brown-Headed Cowbirds: From Buffalo Birds to Modern Scourge, Smithsonian’s Nat’l Zoo & Conservation Biology Inst. (Jan. 1, 1996), https://nationalzoo.si.edu/migratory-birds/news/brown-headed-cowbirds-buffalo-birds-modern-scourge (an overview of cowbird brood parasitism).

^[3] See Jeffrey P. Hoover & Scott K. Robinson, Retaliatory Mafia Behavior by a Parasitic Cowbird Favors Host Acceptance of Parasitic Eggs, 104 Proc. of the Nat’l Acad. of Sci. of the U.S. 4479 (2007) (explaining that cowbird destruction of “ejector” nests may be why so many host species accept cowbird eggs and nestlings, which “differ dramatically in appearance from their own”).

^[4] “Although brown-headed cowbirds were historically restricted to prairie ecosystems, forest clearing and agricultural development of Michigan’s Lower Peninsula in the late 1800s facilitated the brown-headed cowbird’s range expansion into Kirtland’s warbler nesting areas such that brown-headed cowbirds were common within the Kirtland’s warbler’s breeding range by the early 1900s.” Removing the Kirtland’s Warbler From the Federal List of Endangered and Threatened Wildlife, 84 Fed. Reg. 54436, 54450-54451 (Oct. 9, 2019) (to be codified at 50 C.F.R. § 17) (internal citations omitted).

^[5] See Kenn Kaufman, Brown-headed Cowbird, Audubon, https://www.audubon.org/field-guide/bird/brown-headed-cowbird.

^[6] 16 U.S.C. 703-712 (the Migratory Bird Treaty Act of 1918); List of Birds Protected by the Migratory Bird Treaty Act, 50 C.F.R. § 10.13; Depredation Order for Blackbirds, Cowbirds, Crows, Grackles, and Magpies, 50 CFR § 21.150.

^[7] Final Rule Determining Endangered Status for the Southwestern Willow Flycatcher, 60 Fed. Reg. 10694, 10700 (to be codified at 50 CFR § 17.11).

^[8] Id.

^[9] Kaufman, supra note 5.

^[10] See Nick M. Haddad et al., Habitat Fragmentation and its Lasting Impact on Earth’s Ecosystems, Sci. Advances, Mar. 2015, at 1.

^[11] Id.

^[12] The black-capped vireo has been removed from the endangered species list, although cowbird trapping continues to protect its population. Brian D. Peer et. al, Management of the Brown-headed Cowbird: Implications for Endangered Species and Agricultural Damage Mitigation, 14 Human-Wildlife Interactions 461, 461 (2020).

^[13] Kirtland’s Warbler Conservation & Management, Marra Lab (2019), https://marralab.com/conservation-adaptive-management/.

^[14] Id.

^[15] Id.

^[16] Id.

^[17] Id.; see Kenn Kaufman, Bell’s Vireo, Audubon, https://www.audubon.org/field-guide/bird/bells-vireo; Southwestern Willow Flycatcher, Am. Bird Conservancy, https://abcbirds.org/bird/southwestern-willow-flycatcher/.

^[18] See, e.g. NRCS, U.S.D.A., Conservation Programs & Practices for Forest Interior Wildlife Habitat,

https://www.nrcs.usda.gov/sites/default/files/2022-10/Forested%20Habitats.pdf.

^[19] Department of Interior moves to protect mature and old-growth trees and forests from logging, Earthjustice, March 30, 2023, https://earthjustice.org/press/2023/department-of-interior-moves-to-protect-mature-and-old-growth-trees-and-forests-from-logging; but see Nat’l Audubon Soc’y, Supreme Court Decision Threatens Waterways that Birds (and People) Need, Audubon.org, May 25, 2023, https://www.audubon.org/news/supreme-court-decision-threatens-waterways-birds-and-people-need (explaining a recent Supreme Court ruling that dramatically lessens protections on wetlands).

^[20] In January of 2021, the Trump administration finalized a rule that allowed the “incidental take” by corporations of birds protected under the Migratory Bird Treaty Act (such as by pollution or habitat destruction). The rule was reversed in September of 2021 by the Biden administration. See Andy McGlashen, Trump to Birds: Drop Dead, Audubon (Jan. 05, 2021), https://www.audubon.org/news/trump-birds-drop-dead; Andy McGlashen, Biden Administration Restores Migratory Bird Treaty Act Protections, Audubon (Sept. 29, 2021), https://www.audubon.org/news/biden-administration-restores-migratory-bird-treaty-act-protections.

Joshua Watkins

“Governments are instituted among Men, deriving their just powers from the consent of the governed.”^[i] This statement, made in the Declaration of Independence, clearly indicated that the purpose of defying Great Britain and creating the United States was to no longer prescribe to any theory of government besides one elected and consented to by those governed. While voting rights have evolved to break down barriers that once denied American citizens the right to vote, current interpretation of who should vote and how votes should count remains a crucially important issue today. 

One of the earliest and most pervasive voting rights issues is the partisan redistricting of elected republic positions to benefit a current party, also known as “Gerrymandering.”^[ii] Because states must redistrict after gaining or losing seats in the United States House of Representatives in accordance with official censuses, courts very often adjudicate the legality of those changes. Census information allows for proper apportionment of congressional seats to each state, but it also gives elected officials justification for redrawing congressional districts, thereby providing an opportunity for partisan redistricting. 

Alabama’s remapping of districts for the House of Representatives began in 2020, was subsequently challenged before the 2022 midterm elections, and has been an ongoing issue ever since.^[iii] In February 2022, the Supreme Court halted a lower court’s order and allowed Alabama to use a district map for elections, which was adopted after the 2020 Census.^[iv] In June 2023, the Supreme Court finally ruled that Alabama’s voting districts used for United States Congressional elections were illegal and would have to be redrawn.^[v] These voting districts were drawn specifically to limit black voters from having a potential controlling majority in one congressional district, instead of the two districts that population statistics suggest should be allotted. This decision forces Alabama to redraw their district maps in compliance with the Voting Rights Act of 1964 for the 2024 United States Congressional in Alabama.^[vi]

While this decision seems to finally correct the issue that began after the 2020 census, should the result of the 2022 election simply be forgotten? Alabama lawmakers redrew their Congressional districts map in July 2022, but still continue to defy the directive of the trial court by drawing a map that does not comply with the decision affirmed by the Supreme Court.^[vii] Now, Alabama is asking the Supreme Court to rule again on their new map, which still divides black voters in a way that makes a controlling majority in two districts relatively impossible. Instead of correcting their improper, illegal behavior, Alabama’s legislature wishes to continue denying voters’ ballots their proper value.

The court delayed compulsion of the previous redrawing order in 2022 because it was too close to an election later that year, which affected voters in Alabama as well as other states.^[viii] The delay allowed Alabama’s improper and illegal voting districts to determine the results of the 2022 midterm elections. Once the court finally ruled the districts illegal, Alabama’s legislature continued their impropriety by redrawing districts that attempted to enforce the court’s ruling, but ignores the principle of equal representation behind it. Because Alabama continues testing the court, the Louisiana legislature did not redraw their map, waiting for Alabama to be the test subject in a tiring experiment discerning how much voting power states can continue to take from their own constituency.^[ix] Florida also is involved in a similar situation continuing to push the boundaries of redistricting legality.^[x]

The United States is a democratic republic, which is supposed to support citizen-elected officials carrying on the daily tasks of government. Constituents benefit from informed and educated decisions on their behalf. Since almost the very beginning however, partisan control has misshaped and abused this power. Instead of serving the American people, elected officials immediately turn to self-preserving, power-craving behavior, which continues to this very day. While great strides have been made since the initial misrepresentative voting practices, citizens of America and the Judicial system must continue to hold officials accountable for their abuse of power and make choices that encourage change to properly reflect “government of the people, by the people, [and] for the people” of the United States.^[xi]

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^[i] The Declaration of Independence para. 2 (U.S. 1776).

^[ii]Justin Levitt, Why should we care?, All About Redistricting, https://redistricting.lls.edu/redistricting-101/why-should-we-care/ (last visited Sept. 24, 2023).

^[iii] Hansi Lo Wang, Illegal voting maps were used in some states in 2022. This legal idea allowed them, Nat’l Pub. Radio (July 19, 2023, 5:00 AM), https://www.npr.org/2023/07/19/1186746963/alabama-redistricting-map-gerrymandering-purcell-principle.

^[iv] Id.

^[v] Id.

^[vi] Mark Sherman, Supreme Court rules in favor of Black Alabama voters in unexpected defense of Voting Rights Act, Associated Press News (June 8, 2023, 4:43 PM), https://apnews.com/article/supreme-court-redistricting-race-voting-rights-alabama-af0d789ec7498625d344c0a4327367fe.

^[vii] Id.

^[viii] Wang, supra note 3.

^[ix]Gary Fields and Adriana Licon, A Supreme Court redistricting ruling gave hope to Black voters. They’re still waiting for new maps, ABC News(Sept. 17, 2023, 7:52 AM), https://abcnews.go.com/US/wireStory/supreme-court-redistricting-ruling-gave-hope-black-voters-103258398.

^[x] Id.

^[xi] Lincoln, Abraham, Pres. U.S. Gettysburg address delivered at Gettysburg Pa. Nov. 19th, n. p. n. d. https://www.loc.gov/item/rbpe.24404500/.

John Payne

June 2023 was rife with U.S. Supreme Court decisions on hot button issues. Debt relief, affirmative action, and protections for LGBTQ+ people, for example, were all at the forefront of minds and the national conversation. While Biden v. Nebraska is most notable for settling the debate around the student debt relief plan proposed by the Biden administration’s Department of Education, it did something else as well: it highlighted the debate over the Major Questions Doctrine. The Major Questions Doctrine, as the Supreme Court most recently defined it, posits that “if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.”[i] The majority, concurring, and dissenting opinions advance three very different views of the Major Questions Doctrine. While Chief Justice Roberts’ majority opinion sets forth the controlling rule for this area, analyzing the three opinions together provides a more complete picture of the current debate surrounding the Major Questions Doctrine.

The controversy in Biden v. Nebraska was over action taken by the Secretary of Education using the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”) to forgive debt for a large number of student borrowers impacted by the COVID-19 pandemic.[ii] The HEROES Act authorizes the Secretary of Education to “waive or modify” debt repayment requirements for student borrows impacted by a national emergency to prevent those individuals from being “placed in a worse position financially” because of the national emergency.[iii]

Using the HEROES Act, the Secretary of Education attempted to “abolish $430 billion in student loans, completely canceling loan balances for 20 million borrowers.”[iv] Chief Justice Roberts employed the Major Questions Doctrine to say that this is beyond the scope of what is allowed by the Secretary of Education or any administrative agency.[v] Since this is a very large amount of money and far greater than anything else done under the HEROES Act, the Major Questions Doctrine would require Congress to decide that action instead of the President of the agency.[vi] The text and meaning of a statute granting power to the Department of Education or any other agency would not matter in such a case. If the action is “a matter of ‘earnest and profound debate across the country’” it must be decided by Congress and cannot be delegated.[vii] This extreme limit imposed on the power of the administrative agency is the most severe of the opinions in Biden v. Nebraska.

In her concurrence, however, Justice Barrett articulates a very different view of the Major Questions Doctrine. In her view, the Major Questions Doctrine is a method of interpretation and can be used to situate text in context.[viii] Justice Barrett describes common sense as a major part of context.[ix] This common sense analysis would ask what the scope of a power was and whether the law in question fell within it.[x] If not, then the decision would need to be made by Congress instead of the administrative agency to which the power has been delegated.[xi] In this way, “the major questions doctrine grows out of . . . common sense principles of communication.”[xii] In applying her interpretation to this case, Justice Barrett observes that the economic and political significance of this decision “matters not because agencies are incapable of making highly consequential decisions, but rather because an initiative of this scope, cost, and political salience is not the type that Congress lightly delegates to an agency.”[xiii] In the end, her analysis remains vague, but she concludes that although not all factors from previous major question cases are present here, there are enough to support her conclusion because “[c]ommon sense tells us that as more indicators from our previous major questions cases are present, the less likely it is that Congress would have delegated the power to the agency without saying so more clearly.”[xiv]

Finally, Justice Kagan’s dissent mounts a full-on attack on the Major Questions Doctrine and its application in Biden v. Nebraska. She describes the application of the doctrine in the majority opinion as the Court using its power to prevent the Department of Education from exercising its Congressionally delegated authority.[xv] In doing so, she found the Court to be abusing its power and resolving a political dispute that should instead be resolved through the political process.[xvi] For this reason, the controversy surrounding debt forgiveness is irrelevant to deciding this case and using that as a pretense to invoke the Major Questions Doctrine is an overreach of the Court’s power.[xvii]

In some ways, the debate around the Major Questions Doctrine taking place in the three different opinions in Biden v. Nebraska is comforting. It shows there are voices at the top on all sides making themselves heard and people in high places prepared to fight to ensure an abuse of power does not go unchallenged. Still, the majority opinion forecasts an uncertain future for federal administrative agencies. Administrative agencies exist as a means of increasing efficiency and freeing Congress to deal with matters it feels are most important. We can tell what matters Congress deems to be important (and unimportant) by what Congress constitutionally delegates or does not delegate to agencies. The Major Questions Doctrine presents a way for the Court to second guess this decision by Congress and impose its own ideas of what matters are important enough to warrant direct congressional attention. Taken to its extreme, this principle would allow the Court to limit administrative agencies to only acting in the most basic of instances. Looking forward, Biden v. Nebraska points to a future where administrative agencies could cease to function. If so, Congress must be prepared to shoulder the increased burden that would create.

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[i] Kate R. Bowers, Cong. Rsch. Serv., IF12077, The Major Questions Doctrine (2022) (emphasis in original).

[ii] Biden v. Neb., 143 S. Ct. 2355, 2363 (2023).

[iii] Higher Education Relief Opportunities for Students Act of 2003, Pub. L. No. 108-76, 117 Stat. 904. The court blocked this debt forgiveness based on textual grounds as well, however that is omitted here to focus instead on the discussion of the Major Questions Doctrine. See also Biden v. Neb., 143 S. Ct. at 2069.

[iv] Biden, 143 S. Ct. at 2375.

[v] Id. at 2373–75.

[vi] Id. at 2373.

[vii] Id. (quoting W. Va. v. EPA, 142 S. Ct. 2587, 2621 (2022)).

[viii] Id. at 2377–79.

[ix] Id. at 2381.

[x] Id. at 2381–82.

[xi] Id.

[xii] Id. at 2381.

[xiii] Id. at 2384.

[xiv] Id.

[xv] Id. at 2398.

[xvi] Id. at 2400.

[xvii] Id.

Walker Phillips

A massive change to administrative law could be on the near horizon. On May 1, 2023, the Supreme Court decided to revisit the test that determines the level of deference given to agency statutory interpretation.^[1] The test, announced in Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984), is two-pronged, asking: (1) has Congress directly spoken to the precise question at hand; and (2) if not, and the statute is silent or ambiguous on the issue, is the agency’s interpretation a permissible construction?^[2] If Congress speaks directly to the issue, that interpretation must be followed.^[3]

For the forty years since its announcement, the Chevron test has controlled the level of court deference to agency interpretation. The test “provided a definitive framework that required the courts to afford maximum deference to agency interpretation if congress had assigned the responsibility to the agency by being ambiguous and the agency acted reasonably in rendering its interpretation.”^[4] The longevity of this test rested on the concreteness it created. Courts could now rely on clear rules rather than a muddled multi-factor test to address ambiguity.^[5] But clear-cut rules in creating certainty can create their own problems. And the Supreme Court in granting review of Loper Bright Enterprises v. Raimondo, No. 22-451, appears to want to tackle these issues.^[6] The level of judicial deference to executive interpretation—in some form—is likely about to change.   

Loper Bright Enterprises presents a classic Chevron problem: the Magnuson-Stevens Fishery Conservation and Management Act of 1976, 16 U.S.C. §§1801–1884, authorizes the National Marine Fisheries Service (“NMFS”) to provide a fishery management program.^[7] The NMFS chosen plan imposes “industry-funded monitoring” across fisheries when certain criteria have been met. This added cost will potentially reduce the owner’s return of these fisheries by twenty percent.^[8] These owners contend that the NMFS’s plan to require them to pay for their own monitoring goes beyond the agency’s authority under the statute.^[9] The D.C. Circuit Court of Appeals (“D.C. Circuit”), employed the Chevron test and determined that “[a]lthough the act may not unambiguously resolve whether the Service [NMFS] can require industry-funded monitoring, the Service’s [NMFS’s] interpretation of the Act as allowing it to do so is reasonable.”^[10]

The Supreme Court chose Loper Bright as its vehicle to address whether or not Chevron should be restricted or overruled.^[11] Without taking a stance on fishery policy, the level of deference given to agency interpretation leaps out of the water and becomes crystal clear: a statute authorizing a “plan” can be interpreted to impose a twenty percent profit cost reduction. The significance being that Congress never spoke directly to an imposed cost that would have such a large effect on the industry.

 In the forty years since Chevron, the balance of power with respect to interpretation and implementation of authorizing statutes has rested in the hands of agencies, not federal courts. Following the Supreme Court’s decision in Loper Bright, this balance of power might make a drastic shift. This could mean a return to a multi-factor test, or a new test altogether. The future of this area of law will not be clear until after the court’s decision, but if it overrules or narrows the Chevron doctrine, one thing is clear: more challenges to agency interpretation are likely to follow. And with the Supreme Court hearing oral argument for this case just last month on January 17^th, it will hopefully only be a few months until the Court announces its decision.^[12]

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^[1] Loper Bright Enterprises v. Raimondo, 45 F. 4th 359 (D.C. Cir. 2022), cert. granted, 143 S. Ct. 2429 (2023) (No. 22-451). 

^[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

^[3] Id. 

^[4] Ryan J. Strasser & Timothy L. McHugh, The Supreme Court Decides to Revisit Chevron: Here’s What It Could Mean For Future Deference to U.S. Government Agency Interpretations, 1 J. Fed. Agency Action 341, 348 (2023) (citing Chevron, 467 U.S. at 845). 

^[5] Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. rev. 2071, 2074–75 (1990). See generally Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (providing a multi-factor test for agency interpretation that included “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control”). 

^[6] Loper Bright Enterprises v. Raimondo, SCOTUSblog, https://www.scotusblog.com/case-files/cases/loper-bright-enterprises-v-raimondo/ (last visited Sept. 7, 2023). 

^[7] Loper Bright Enters. v. Raimondo, 45 F. 4th 359, 363 (D.C. Cir. 2022). 

^[8] 85 Fed. Reg. 7, 417–18 (Feb. 7, 2020). 

^[9] Loper Bright Enters. v. Raimondo, 45 F. 4th 359, 364 (D.C. Cir. 2022).

^[10] Id. at 365. 

^[11] Loper Bright Enterprises v. Raimondo, supra n. 6. 

^[12] For the Session Beginning January 8, 2024, Supreme Court of the United States, https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalJanuary2024.pdf (last visited Feb. 9, 2024). 

Eleana Tsiamtsiouris

Many Americans are familiar with the 2009 blockbuster “The Blind Side” that chronicled the life of Michael Oher(“Oher”). Born in Memphis, Tennessee, Oher’s early years were spent in foster homes and homelessness due to his father’s murder and his mother’s drug addiction that prevented her from providing for her twelve children. At the age of sixteen, Oher’s life took a profound turn when Sean and Leigh Anne Tuohy took Oher into their home and later became his legal guardians.^[1] The Tuohy family supported Oher in both his academic and athletic careers as he established himself as a top offensive lineman, embracing him as a family member in addition to their own two children. In sum, “The Blind Side” glamorized Oher’s story and showcased the power of compassion and determination. 

However, Oher and the Tuohys are making headlines once again after recent revelations about Oher’s conservatorship with the Tuohy family. Amid these revelations, Oher’s story, once focused on his hard work and perseverance, is now revealing the complexities of his own personal experience with the Tuohys and the legal implications of his conservatorship. On August 14, 2023, Oher took legal action against the Tuohys, alleging that the Tuohy family misled him to sign a conservatorship agreement instead of finalizing his adoption.^[2] Oher only became aware of this arrangement in February 2023, at which point he claimed to be devastated to find out he had never been adopted by the Tuohy family. 

A conservatorship is a legal proceeding where the court transfers one’s decision-making ability to someone else, the conservator. The conservatorship allows the conservator to have authority of the finances and personal affairs of a person. In Tennessee, conservatorships are generally granted where an individual has mental or physical disabilities^[3]. Oher experienced neither. The Tuohy family claimed that they entered into a conservatorship due to National Collegiate Athletics Association (“NCAA”) rules. These rules allegedly prohibited them from donating “boosters” that offer housing and financial support to Oher while he was playing football at the University of Mississippi, since his grade point average was too low to qualify for an athletic scholarship.^[4]

The Tuohy’s conservatorship allowed the family to profit from the blockbuster film and the book based on Oher’s life while simultaneously holding the rights to Oher’s story. Oher’s signature appears on a document that enabled the Tuohy family to profit from his story without paying him anything in return, but Oher claims the signature was obtained by “forgery” or “trickery,” since he did not remember signing this document.^[5] In his lawsuit, Oher further alleges that the Tuohy family breached their fiduciary duty by using and profiting from his life story. The legal filing shows that the film paid the Tuohys and their two children $225,000 each, plus 2.5% of the film’s defined net proceeds.^[6] The Tuohys deny that they profited from the movie and only received a flat fee for the story, which they claim to have shared with Oher. However, Oher argues that he never received any money from the film. It is now up to the judge in the Shelby County, Tennessee, probate court to decide whether the Tuohys breached their fiduciary duty and acted against Oher’s best interests as his conservators. Additionally, Oher is asking the judge to end the conservatorship and to bar the Tuohy family from using his name and likeness. Oher demands his fair share of profits from “The Blind Side” and punitive damages.^[7]

Michael Oher’s story continues to inspire and captivate audiences. His story continued to make headlines and allows us to acknowledge both the uplifting moments in his life, the hurdles he is attempting to overcome, and the negative implications of not only his conservatorship, but also conservatorships in general that have also garnered media attention due to mismanagement, such as Britney Spears’s “conservatorship nightmare”. Subsequently, we continue to see a notable crossroad where the personal stories of people in high places intersect with the legal system. As a result, these individuals are subjected to a great deal of media scrutiny, which—due to the personal nature of such proceedings—could severely impact their careers and reputations along the way. In a world where people of all ages can earn royalties from followers clicking links on Instagram or watching videos on TikTok, conservatorships and guardianships are not so farfetched for those who are unable to manage their finances. However, Oher’s story highlights the problematic aspects of a conservatorship—both at a personal and legal level—when the relevant party is ultimately blindsided by the conservators years later. 

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^[1] Biography.com Editors and Colin McEvoy, Michael Oher, Biography.com (Sept. 29, 2023) https://www.biography.com/athletes/michael-oher.

^[2] Khristopher J. Brooks, What is a Conservatorship? The Legal Arrangement at the Center of Michael Oher’s Case, CBS News, (Aug. 15, 2023 5:59 PM) https://www.cbsnews.com/news/what-is-conservatorship-michael-oher-case/.

^[3] TN Code § 34-3-107(c).

^[4] Role of Boosters, NCAA https://www.ncaa.org/sports/2013/11/27/role-of-boosters.aspx.

^[5] Molly Hensley-Clancy and Ben Strauss, The ‘Strange’ Conservatorship at the Center of the ‘Blind Side’ Dispute, The Washington Post (Aug. 25, 2023 10:53 AM) https://www.washingtonpost.com/sports/2023/08/25/blind-side-controversy/. 

^[6] Complaint at 6, In Re: Michael Jerome Williams, Jr. No. C-010333 (Probate Court of Shelby Cnty, Tenn., Aug. 14, 2023). 

^[7] Id.

Alexis McCall

This past June, new legislation went into effect that reflects a response to decades of discrimination against pregnant and new mothers in the workplace.^[1] The Pregnant Workers Fairness Act (“PWFA”), which will be administered and enforced by the United States Equal Employment Opportunity Commission (“EEOC”), requires public and private sector employers with more than fifteen employees to provide “reasonable accommodations” to qualified employees who are affected by “pregnancy, childbirth, or related medical conditions,” unless the accommodation will cause the employer an “undue hardship.”^[2]

Previous Protections

Historically, Title VII of the Civil Rights Act of 1964 and its various amendments have served to protect employees from discrimination based on pregnancy, childbirth, and other related conditions.^[3] The primary source of protection under Title VII for pregnant workers was the Pregnancy Discrimination Act (“PDA”), which enabled pregnant workers to receive temporary accommodations, but only if their employer provided them to others “similar in their ability or inability to work.”^[4] This language allowed many employers to refuse to accommodate pregnant employees when other non-pregnant colleagues did not require such accommodations.^[5] Other amendments to Title VII, such as the Americans with Disabilities Act of 1990 (“ADA”), the Family and Medical Leave Act of 1993 (“FMLA”), and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) provided alternative protections, but the majority of workers affected by pregnancy or pregnancy-related conditions did not qualify for protection.^[6]

In 2015, advocates of equity for pregnant workers were hopeful that the Supreme Court’s decision in Young v. United Parcel Service, Inc. would emphasize to employers the necessity of providing accommodations for pregnant workers. While the Supreme Court in Young held that employers must have a “compelling reason” to deny accommodations for pregnant workers, in more than two-thirds of post-Young cases courts continued to allow employers to deny pregnant workers accommodations under the PDA.^[7] While Title VII, the PDA, ADA, FMLA, and various state and local laws have provided some protections, enormous gaps remained in necessary protections for workers affected by pregnancy or pregnancy-related conditions. 

Power of the PWFA

The PWFA recognizes these gaps and provides guaranteed protections that supplement and bridge together those provided in Title VII, PDA, ADA, and FMLA. Under PWFA, workers who are affected by pregnancy, childbirth, or related medical conditions are no longer required to identify accommodations among “similar,” non-pregnant co-workers.^[8] Instead, employers are required to grant reasonable accommodations that do not impose undue hardships on the employer.^[9] Not only does the PWFA provide clear and definitive instruction for employers, but the PWFA is modeled on the ADA so that employers can easily adapt existing accommodation frameworks for pregnant employees. The administrative bodies responsible for administering and enforcing the PWFA have also proposed clear regulations and guidance that will help prevent results similar to those seen in the aftermath of Young. 

The Picture Outside of Pregnancy

There is no doubt that the PWFA will provide many essential protections to workers who are pregnant or facing pregnancy-related conditions. This piece of legislation, however, will do more than provide temporary accommodations for individual employees. 

First, the PWFA will be considered in history as a significant step towards achieving gender equity, both in and out of the workplace. By establishing a clear framework of support for pregnant workers, Congress has made an affirmative commitment to furthering the success of women. Congress made it clear to employers in any number of industries that familial goals can be as valuable as professional ones. 

Second, the face of industry and commerce could be changed as women are given the power to get and stay ahead in business even after becoming pregnant. Not only will employers be able to attract and retain top talent by allowing female employees the support they need during and after pregnancy, but female employees will no longer be put at an immediate disadvantage by choosing to pursue familial goals. More than 80% of all working women will have at least one child during their life.^[10] If these women are able to continue on their career trajectory, they will face fewer impediments to excellence and gain positions of power that may have otherwise been out of reach.  

Third, providing accommodations due to pregnancy could help address the maternal health crisis that disproportionately affects mothers in minority groups. Representative Jahana Hayes (D-CT) noted during the PWFA Congressional debate that “women of color are more likely to hold inflexible and physically demanding jobs that can present specific challenges for pregnant workers,” making protected accommodations all the more necessary to help ensure the health of these women and their babies.^[11] Protecting accommodations that could help prevent the complications related to pregnancy or childbirth could help reduce the overwhelming devastation presented by the current maternal health crisis.

Finally, bi-partisan legislation like PWFA can help re-instill a sense of public trust in the federal government. Fewer than two-in-ten Americans say that they trust the federal government to do what is right “most of the time.”^[12] Given recent threats of government closure, historic ousting of Congressional leaders, and unprecedented antics by those who have been trusted with the protection of democracy – the public’s lack of faith in the government’s ability to effectuate positive chance is perhaps justifiably low. Adopting public policy that impacts such a key demographic of constituents—not only working women, but their families, friends, and businesses—in such a positive way, could be extraordinarily valuable. More bi-partisan legislation like this could be exactly what the country needs to restore its faith in the American political process.

Not only does this piece of legislation mark a historic step towards gender equality, but it also serves as a beacon of hope for the potential that our governing bodies still have for effectual political action. 

---

^[1] Regulations To Implement the Pregnant Workers Fairness Act, 88 Fed. Reg. 54714 (Aug. 11, 2023) (to be codified at 29 C.F.R. 1636), https://www.federalregister.gov/documents/2023/08/11/2023-17041/regulations-to-implement-the-pregnant-workers-fairness-act.

^[2] Id. 

^[3] Id.

^[4] Id.

^[5] What is the Pregnant Workers Fairness Act?, Am. C.L. Union (June 27, 2023), https://www.aclu.org/documents/what-is-the-pregnant-workers-fairness-act.

^[6] Id.

^[7] Long Overdue – It is Time for the Federal Pregnant Workers Fairness Act, A Better Balance (May 2019), https://www.abetterbalance.org/long-overdue/;Young v. United States Parcel Service, Inc., 575 U.S. 206 (2015). 

^[8] Regulations To Implement the Pregnant Workers Fairness Act, supra note 1.

^[9] Id. 

^[10] Katherine Schaeffer & Carolina Aragão, Key Facts About Moms in the U.S., Pew Rsch. Ctr. (May 9, 2023), https://www.pewresearch.org/short-reads/2023/05/09/facts-about-u-s-mothers/.

^[11] Regulations To Implement the Pregnant Workers Fairness Act, supra note 1.

^[12] Schaeffer & Aragão, supra note 10.

Rob Deighton

On March 23, 2023, the North Carolina House of Representatives voted 87-24 in favor of a Medicaid Expansion deal that would provide healthcare coverage to over 600,000 people in the state.^[1] In finalizing the legislation, North Carolina became the 40th state to adopt Medicaid Expansion, an Obama-era program associated with the Affordable Care Act.

Nearly six months later, the proposed expansion had not been implemented, nor had a date been set for the expansion’s rollout. In late July, both the North Carolina Department of Health and Human Services and Governor Roy Cooperannounced an anticipated October 1, 2023 rollout date and clarified that the only hurdle preventing expansion was legislative approval of a state budget bill.^[2]  Budget bills are usually passed by early summer, but negotiations stretched into August and September, pushing the anticipated October 1st rollout date out of reach. Finally, in late September a definitive launch date of December 1, 2023 was announced by Governor Cooper.^[3]

Why Expansion Was Tied to Passage of a Budget Bill

The Medicaid Expansion bill includes a provision that the expansion is “not effective” until the 2023-2024 state budget has been enacted.^[4] In practice, this means that Medicaid Expansion was tied to the Republican-majority legislature’s ability to resolve a myriad of unrelated and contentious budgetary issues such as legalizing video gambling and non-tribal casinos.

Governor Cooper has criticized the provision, stating, “Making Medicaid Expansion contingent on passing the budget was and is unnecessary, and now the failure of Republican legislators to pass the budget is ripping health care away from thousands of real people and costing our state and our hospitals millions of dollars.”^[5] However, Republican lawmakers repeatedly balked at suggestions to pass legislation that decoupled Medicaid Expansion and the budget bill, citing concerns about the workability of decoupled Medicaid Expansion. As a result, the provision in the Medicaid Expansion bill still tied expansion to the state budget.

How Federal Funding for Medicaid Works

The federal government sets broad guidelines that allow states to create their own plans with regard to eligibility, benefits, and administration. Financing for Medicaid is shared between the federal government and the states. The federal government matches at least $1 for every $1 a state spends on its Medicaid program. Each state is assigned a fixed percentage (known as FMAP—the Federal Medical Assistance Percentage) that the federal government pays toward Medicaid expenses, with poorer states receiving a higher percentage of federal funding. In North Carolina, the FMAP rate is 65.91%.

In addition to the FMAP, federal dollars pay for 90% of Medicaid Expansion costs when states opt in to expansion. In North Carolina, Medicaid Expansion comes with a “signing bonus” that will amount to $1.6 billion in federal funding when expansion is implemented and enrollment begins. The Medicaid Expansion bill also includes a provision called the Healthcare Access and Stabilization Program(“Program”), which will expedite reimbursement procedures for hospitals that serve Medicaid patients. However, if the Program is not implemented at the same time as Medicaid Expansion, the state could lose up to $60 million in federal funding.

The Human Cost of Delay

The financial risks of delaying expansion are clear, but how does that delay affect people who will qualify for coverage under the new rules?

One crucial change that will come with Medicaid Expansion is extended eligibility to all adults aged 19-64 with incomes at 138% of the federal poverty level ($20,120/year) or lower. This will bring in a new population to the program and simplify the application process.^[6] Under current Medicaid rules, childless non-elderly adults with no disabilities are generally not eligible for benefits. In addition to providing coverage for this population, income limits for families will rise as well.^[7] Every month of delay is a month of uncertainty and lost healthcare opportunities for these populations.

Furthermore, the cost of delaying Medicaid Expansion is exacerbated by the fact that Medicaid started unwinding pandemic-era “continuous coverage” requirements in April 2023. Medicaid recipients are now subject to the recertification process for the first time since before the pandemic, and terminations began on July 1st.^[8] Nearly 100,000 people in North Carolina have lost coverage since then. Many who lost coverage will be eligible under the new rules  and are facing a gap in healthcare coverage due to the delay in implementing Medicaid Expansion..

In addition to the obvious health hazards created by the delay—like inability to obtain coverage for critical surgeries or cancer treatments—research suggests that Medicaid Expansion is a criminal justice issue as well. One study found a correlation between adoption of Medicaid Expansion and reduced police arrests, particularly arrests related to drugs. The authors conclude, “…greater insurance coverage creates new avenues for individuals to seek care, receive treatment, and avoid criminalization.”^[9]

The impacts of Medicaid Expansion in North Carolina will be profound. Coverage will extend to over 600,000 new individuals, many of whom are among the most vulnerable populations in the state. Life-saving treatments will suddenly be within reach for many who have struggled to obtain coverage in the past, and improved access to mental health and substance abuse treatments will likely reduce crime by providing support to people who desperately need it.

Every month of delay matters.

---

^[1] Gary D. Robertson, North Carolina Approves Medicaid Expansion, Reversing Long Opposition, PBS News Hour (March 23, 2023), https://www.pbs.org/newshour/politics/north-carolina-approves-medicaid-expansion-reversing-long-opposition.

^[2] Megan Messerly, N.C. Governor Sets Medicaid Expansion Date, Pressuring Republicans To Act, Politico (July 26, 2023), https://www.politico.com/news/2023/07/26/roy-cooper-north-carolina-medicaid-expansion-00108297.

^[3] Sam Chan, NC Medicaid Expansion Will Launch on Dec. 1, 2023, N.C. Off. of the Governor (Sept. 25, 2023), https://governor.nc.gov/news/press-releases/2023/09/25/nc-medicaid-expansion-will-launch-dec-1-2023.

^[4] H.R. 76, SL 2023-7. Reg. Sess. (N.C. 2023).

^[5] Messerly, supra note 2.

^[6] Jaymie Baxley, DHHS Plans To Speed Up Medicaid Expansion; What Would That Mean for North Carolina?, City View (Aug. 15, 2023), https://www.cityviewnc.com/stories/dhhs-plans-to-speed-up-medicaid-expansion-what-would-that-mean-for-north-carolina,52382.

^[7] Id.

^[8] Fact Sheet: Continuous Coverage Unwinding, N.C. Dep’t of Health and Hum. Serv., https://medicaid.ncdhhs.gov/ccu-fact-sheet/download?attachment.

^[9] Jessica T. Simes & Jaquelyn L. Jahn, The Consequences of Medicaid Expansion Under the Affordable Care Act for Police Arrests, 17(1) PLOS One (2022) https://doi.org/10.1371/journal.pone.0261512.

Alexis Hellner

The Eastern Band of Cherokee Indians sit cradled in the mountains of Western North Carolina. This land, called the Qualla Boundary by the Eastern Cherokee, has belonged to the tribe since the 1800s. During this time, members purchased 57,000 acres of land and, soon after, sealed their status as an autonomous sovereign nation.^[1] The Eastern Band self-governs their people separately from the workings of the United States federal government and the North Carolina state government. Within their independent governance, the Eastern Band has recently held a September 7th referendum vote where the Cherokee people have, by a landslide, affirmed their desire for the legalization of recreational marijuana within the Qualla Boundary. Already, there are reports of over four tons of the plant being grown on tribal lands within the last year.

Although how the tribe will regulate recreational marijuana has yet to be fleshed out by council members, legalization has broad implications for both the Eastern Band economy and the future of marijuana legalization in the state of North Carolina as whole. With the passing of this referendum, the Qualla Boundary will become the only place in North Carolina where visiting individuals can buy recreational marijuana.^[2]

Eastern Band members have lauded the economic benefits they hope to reap from the legalization of marijuana. Medical marijuana has been legal in the Qualla Boundary since 2021. However, legalization of recreational marijuana could bring in estimates of over $385 million in adult sales in the first year of the dispensary opening on tribal lands. This expansion could lead to hundreds of jobs for the tribe’s 16,000 members. A research study funded by Qualla Enterprises LLC, the company in charge of the tribe’s marijuana business, has shown “that in order to meet the needs of medicinal patients it will have to grow 40,000 pounds of marijuana a year — and 80,000 if recreational use is approved. [C]urrently Qualla Enterprises can produce about 25,000 a year, which means the business will eventually have to expand.”^[3]

However, there has been backlash from high-ranking North Carolina officials like Chuck Edwards, a Congressman representing North Carolina’s 11th district. Congressman Edwards has introduced the Stop Pot Act which seeks to withhold ten percent of federal highway funding from tribes that legalize the recreational use of marijuana and violate federal law under the Controlled Substances Act. Congressman Edwards has cited times of “unprecedented crime, drug addiction, and mental illness” in local communities as his driving force behind pushing the Stop Pot Act. ^[4]

Congressman Edwards’ fixation on the tribe’s sovereign decisions and his intention to punish them for their autonomy is misguided. Given the high poverty rates on the Qualla Boundary, the Stop Pot Act not only punishes the Eastern Band’s sovereign rights, but may curb their economic development.If Congressman Edwards were genuinely concerned about mental health and unprecedented crime, it seems that he should look no further than finding ways to curb Asheville’s violent crime rates rather than focusing on a newly passed referendum with little to do with a citywide problem.

More pragmatically, some local leaders wonder whether the tribe is moving too quickly to properly regulate this new growth when medical marijuana policies within the Qualla Boundary are still being decided. The Eastern Band’s medical cannabis program will be poised to receive hundreds of medical marijuana cards from North Carolinians which require a signature from their doctors.^[5] The legality of signing these forms poses a risk for many doctors who are well aware that the state of North Carolina itself still does not recognize medical marijuana use. When there are still so many unanswered questions about medical marijuana in the Qualla Boundary and its connection with the state, the legalization of marijuana within North Carolina will likely present even greater challenges.

---

[1] Profile: Eastern Band Of Cherokee Indians, Nat’l Indian Council on Aging, https://www.nicoa.org/profile-eastern-band-of-cherokee-indians/ (last visited Nov. 15, 2023).

[2] The Eastern Band Of The Cherokee Nation Legalizes Cannabis, Marijuana Pol’y Project, https://www.mpp.org/states/north-carolina/ (last visited Nov. 15, 2023).

[3] Graham Lee Brewer, Eastern Band of Cherokee Indians may legalize recreational marijuana — a first in North Carolina, NBC News (Sept. 6, 2023, 1:40 PM), https://www.nbcnews.com/news/us-news/eastern-band-cherokee-indians-legalize-marijuana-rcna103620.

[4] See Press Release, Chuck Edwards, Congressman, Edwards Introduces Legislation to Uphold Federal Marijuana Laws (Sept. 1, 2023), https://edwards.house.gov/media/press-releases/ (scroll down and navigate to the next page; then choose the release from Sept. 1, 2023).

[5] Forms and Documents to Apply for Medical Marijuana, Eastern Band of Cherokee Indians – Cannabis Control Bd., https://ebci-ccb.org/documents/ (last visited Nov. 11, 2023).

Kaitlin Beckom

Deep-sea mining is a decades-old practice. As countries consider commercializing the deep-sea mining industry to meet the increasing demand for minerals, concerns over the industry’s environmental impacts are growing. The ocean is vital to life on Earth, making up over 70% of the Earth’s surface and containing up to 80% of all life. In addition to supporting over half the life on Earth, the ocean is one of the biggest carbon sinks, meaning that it absorbs large quantities of the carbon produced by humans, removing it from the atmosphere. The global call for sustainable use of the ocean is growing more prominent as the ocean is essential to reducing the effects of climate change. The American Seabed Protection Act is crucial legislation that Congress must pass to further its environmental and sustainability goals. 

Deep-sea mining threatens the ocean and worsens climate change. The mining process involves drilling into the seabed to extract minerals and gasses, posing potential threats to the ecosystem and carbon storage ability during and after drilling.^[1] Environmental threats include (1) the death of organisms, (2) increased acidification in the mining area, (3) sediment plumes, (4) increased noise, and (5) the displacement of various fish populations in the area.^[2]  Because deep-sea mining occurs in both international and domestic waters, regulation of the practice is important to protect the exploitation of the global commons and the environment.^[3]

            In light of these efforts to protect the ocean from exploitation, countries and manufacturers have recently expressed concern about the impacts of deep-sea mining. For example, France, Germany,^[4] Microsoft, and Volvo have all voiced their concerns over deep-sea mining. Now, the increased concern over deep-sea mining has reached Congress. On July 11, 2023, Representative Ed Case (D-Hawaii), along with five other representatives from four additional states, introduced the American Seabed Protection Act.^[5] The purpose of the American Seabed Protection Act is to “prohibit certain mining activities on the deep seabed and Outer Continental Shelf” until further research establishes the impacts of mining on the marine environment.^[6] The American Seabed Protection Act provides a framework for a comprehensive impact study of deep-sea mining that would include a description of the impacted ecosystems, an assessment of potential impacts from mining, the capacity for the sequestering of greenhouse gases, sediment plume impacts, and an assessment of alternatives to the minerals mined.^[7]

Congress has the unique ability to enact legislation that can make provisions of international law enforceable in the United States. The United Nations (“UN”) has set guidelines for ocean conservation through Sustainable Development Goal 14, which focuses on conserving marine areas, reducing pollution in the ocean, “… [expanding] scientific knowledge, [and] develop[ing] research ….”^[8] The UN has also emphasized the urge for increased research on the impacts of deep-sea mining during the Convention on Biological Diversity, stating that “before deep seabed mineral exploitation activities take place,” deep-sea mining impacts must be “sufficiently researched and [the] risks understood.”^[9] As a member of the UN, the United States should uphold these goals, especially since other countries have expressed similar concerns about the impacts of deep-sea mining.  

The International Seabed Authority (“ISA”) governs international waters and has been the primary source of rules and regulations for over 150 member states, including Portugal, Sweden, and Canada.^[10]  Recently, the ISA prohibited seabed mining until further research on the environmental impacts is conducted. Although the United States is not a member of the ISA, it collaborates with members of the ISA on other sustainability goals.^[11] Additionally, the United States has followed the lead of the ISA in adopting the Deep Seabed Hard Mineral Resource Act, which established an “interim measure to allow U.S. citizens to proceed with seabed mineral exploration and recovery until an international regime was in place.”^[12] Seeing how international laws have influenced the United States, the precedent set by the UN and the ISA should persuade Congress to pass the American Seabed Protection Act, which will help the United States meet these international environmental goals.

            In addition to the international appeal, the United States’ commitment to protecting the ocean is evident in its domestic policies. The first Ocean Climate Action Plan, created by the Ocean Policy Committee (“Committee”) under the Biden Administration, denotes the progress and intended goals of Marine Protected Areas to protect ecosystems from the impacts of mining oil and gas.^[13] Under the Ocean Climate Action Plan, the Committee will study and research carbon storage impacts from mining because the ocean is vital to carbon storage in the issue of climate change.^[14] Along with the Ocean Climate Action Plan, the United States has already committed six billion dollars to research the impacts of seabed mining and other initiatives to protect the ocean. However, to protect the ocean from the detrimental impacts of deep-sea mining, more needs to be done. Several states, including California, Hawaii, Oregon, and Washington, recognized this need and have banned or are considering a ban on deep-sea mining practices. Congress should integrate the states’ concerns by passing the American Seabed Protection Act. 

            Opponents of the American Seabed Protection Act may argue that deep-sea mining is the future of the economy and will resolve energy problems in the United States. However, the American Seabed Protection Act is not a complete ban on deep-sea mining but rather a moratorium encouraging further research on the impacts before any mining begins.^[15] Additionally, the temporary suspension could prevent massive environmental lawsuits and backlash by increasing the opportunity to gain knowledge about the mining impacts and allow companies to develop mitigation strategies, thus preventing unnecessary environmental harm. Ultimately, the American Seabed Protection Act will follow the precedent that the United States has set in its commitments to preserve biodiversity and the seabed ecosystem, therefore, Congress should pass the American Seabed Protection Act.

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^[1] Xingsen Guo et al., Deep seabed mining: Frontiers in engineering geology and environment, 10 Int’l J. Coal OF Sci. Tech. 1, 7 (2023),https://link.springer.com/article/10.1007/s40789-023-00580-x.

^[2] Id. at 20–23.

^[3] Erin A. Clancy, The Tragedy of the Global Commons, 5 IND. J. OF GLOB. LEGAL STUD. 601, 603–05 (1998), https://www.repository.law.indiana.edu/ijgls/vol5/iss2/12/?utm_source=www.repository.law.indiana.edu%2Fijgls%2Fvol5%2Fiss2%2F12&utm_medium=PDF&utm_campaign=PDFCoverPages.

^[4] Int’l Inst. for Sustainable Dev., Summary of the Twenty-eight Annual Session of the International Seabed Authority (Second Part), 25 The Earth Negot. Bull. 1, 18 (2023), https://enb.iisd.org/sites/default/files/2023-07/enb25253e.pdf.

^[5] American Seabed Protection Act, H.R. 4537, 118th Cong. (2023).

^[6] Id.

^[7] Id.

^[8] G.A. Res. 70/1, at 23–24 (Oct. 21, 2015).

^[9] U.N. Conference on the Parties to the Convention on Biological Diversity, Conservation and sustainable use of marine and coastal biodiversity, at 16, U.N. Doc. CBD/COP/DEC/15/24 (Dec. 19, 2022), https://www.cbd.int/doc/decisions/cop-15/cop-15-dec-24-en.pdf.

^[10] Int’l Inst. for Sustainable Dev., supra note 4, at 18.

^[11] Caitlin Keating-Bitonti, Cong. Rsch. Serv., R47324, Seabed Mining in Areas Beyond National Jurisdiction: Issues for Congress, at 7 (2022).

^[12] Id. at 6.

^[13] The Ocean Pol’y Comm., Ocean Climate Action Plan, at 53 (2023), https://www.whitehouse.gov/wp-content/uploads/2023/03/Ocean-Climate-Action-Plan_Final.pdf.

^[14] Id. at 90.

^[15] American Seabed Protection Act, supra note 5.