Inferable Discrimination: A Landmark Decision Addresses Selective Law Enforcement

“Black drivers have a problem in Richmond, Virginia.” ⁱ

In February, a federal district judge in Richmond, Virginia, concluded that Mr. Keith Moore presented sufficient evidence to prove selective enforcement of the law by the Richmond Police Department (RPD) against Black drivers. United States District Judge John A. Gibney Jr. granted Mr. Moore’s motion to dismiss the government’s indictment for illegally possessing a firearm after finding that Moore had established the discriminatory effect and purpose elements necessary to prove his claim of systemic bias. This decision illustrates an avenue for courts to overcome doctrinal barriers when specific statistical evidence of racial disparity combined with historical context permit the inference of bias.

The constitutional promise of Equal Protection prohibits racial discrimination in policing,ⁱⁱbut the doctrine has been wholly ineffective at halting the racialized selection process funneling our criminal legal system. Despite the accumulation of evidence of racialized policing, it is exceptionally difficult for a criminal defendant to prove that their police encounter was motivated by race.ⁱⁱⁱ Meanwhile, rather than constraining racially disproportionate policing, the Fourth Amendment has been interpreted in a manner that facilitates implicit racial bias.^iv Most notoriously, in Whren v. United States, the Supreme Court rendered consideration of an officer’s subjective motivations constitutionally irrelevant, condoning pretextual traffic stops.^v Although the Court stated that racially discriminatory policing could implicate the Equal Protection Clause^,vi Whren’s practical effect is that police can stop people for traffic infractions to investigate other crimes.^vii Compounding this doctrinal quagmire is the reality that our current Supreme Court rejects race-conscious efforts to address systemic or implicit racial bias.”^viii

The Court has reiterated that an ordinary Equal Protection claim requires proof of discriminatory effect—that similarly situated individuals of a different race were treated differently —motivated by discriminatory purpose.^ix Pursuant to this oft criticized “Armstrong standard,” a criminal defendant bears an initial burden of presenting evidence that raises a reasonable inference of impermissible discrimination based on race. This could be evidence that a larger class of persons than those selected and investigated by police have violated the law—which is virtually impossible to obtain in the context of traffic violations.^x A defendant must also show that failure to enforce the law upon others was deliberate, and that the decision to enforce against them was based on their membership in a that racial group.^xi

Statistical evidence can prove discriminatory effect.^xii And as Judge Gibney concluded, the statistics provided in this case made abundantly clear the disparate impact of traffic stops on Black drivers in Richmond.^xiii Recent demographics show that Richmond is 46% white and 45% Black. Mr. Moore presented evidence that the RPD stops Black drivers at more than five times the rate they stop white drivers. Between July 2020 and December 5, 2020, when Mr. Moore was stopped and arrested for illegal gun possession, 77% of drivers stopped by Richmond police were Black and 15% were white. Mr. Moore presented evidence that RPD officers were “far more likely” to search Black drivers and their cars than white drivers, and Black drivers were 12.67% more likely to be arrested because of the traffic stop. Notably, Mr. Moore’s evidence was collected as required by the Virginia’s Community Policing Act, legislation passed in 2020 specifically aimed at reducing racial disparities in traffic stops and racial profiling.^xiv

But even strong proof of discriminatory effect is insufficient to establish selective enforcement based on race. The second requirement, discriminatory purpose, has proven particularly challenging for criminal defendants. As the court here acknowledged, (and as almost always the case), Mr. Moore presented no evidence of bad faith on the part of the four police officers who stopped him.^xv In a highly unusual New Jersey case last year, a 911 dispatcher erroneously inserted race into a suspect description, and therefore discriminatory intent was uniquely proven.^xvi But for a claim of selective enforcement based on race, a showing of intent—that a police officer’s decision to surveil, stop or search someone was made with a discriminatory purpose or pursuant to a discriminatory policy—presupposes an ability to discover that officer’s racial bias. This increasingly unrealistic discovery of a “smoking gun” is considered a primary reason these claims fail in the policing context.^xvii Michelle Alexander explained that officials are increasingly unlikely to state discriminatory beliefs, even when such racist beliefs consciously motivate their enforcement choices.^xviii And as some states have recognized, implicit bias, which is often inaccessible to the officers themselves, “is no less real and no less problematic than intentional bias.”^xix

Here, confronted with the challenge of proving discriminatory intent, Judge Gibney relied upon precedents where inferences were drawn from statistical evidence of disparate impact to help show discriminatory purpose. He concluded that the Fourth Circuit’s “passing reference” to Armstrong did not foreclose the possibility of using statistical evidence to satisfy Mr. Moore’s burden on a selective enforcement claim.^xx He credited Mr. Moore’s two experts, who presented evidence of a consistent pattern of actions by RPD that disparately impact Black drivers in Richmond and a history of discrimination by RPD in Richmond.^xxi

In addition to data illustrating RPD’s current problem with disproportionately stopping Black drivers, the court credited Richmond’s “racially segregated and discriminatory history.”^xxii Indeed, Mr. Moore’s experts discussed the Confederate foundations of the RPD, and the city’s painful history of racialized residential zoning and placement of police precincts in predominately Black neighborhoods. To be sure, Virginia’s enactment of the Community Policing Act four years ago showed its concern regarding historic and ongoing racial profiling. Taking this historical context into account, Judge Gibney identified the absence of certain evidence. In particular, the government presented evidence that more crime occurred in Richmond’s majority Black neighborhoods, but failed to present any explanation as to why or how stopping predominately Black motorists would serve to reduce serious crimes. And “most significantly, no one explained why Black motorists are disproportionately stopped in white areas of Richmond, where the crime is lower.”^xxiii

The centrality of traffic enforcement data, collected in Moore because of Virginia’s new law, must be emphasized. Indeed, prevailing on a selective enforcement claim creates a cyclical burden lamented as a “Catch-22.”^xxiv Because a defendant must make “a credible showing of different treatment of similarly situated persons” to be granted discovery for relevant documents,^xxv individuals seeking discovery in a selective enforcement claim must present the court with the evidence that they seek. Even where statistical evidence of disparate policing that can occasionally, as in Moore, suffice to prove discriminatory purpose, such evidence is typically difficult to access. By requiring police officers to collect and report data on the race and ethnicity of the drivers they stop, Virginia’s new law helps to overcome this hurdle.

Recognizing the doctrinal and evidentiary challenges to showing racialized policing, a few states have interpreted their constitutions as providing more protection than the federal Constitution by revising the requirements for proving discriminatory intent. California concluded that “more and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system.”^xxvi In the Criminal Justice Reform Act (CJRA), the state legislature determined that specific evidence of racially disparate treatment in charging or sentencing, combined with historical evidence of racism, was enough to show a case may have been impacted by racial bias.^xxvii Similarly, Massachusetts’ highest court (SJC) acknowledged that “the right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy,” and reduced the evidentiary burden for proving a traffic stop was racially motivated.^xxviii Defendants can use descriptive statistical evidence of racial disparities toraise a reasonable inference that their own stop was racially motivated.^xxix New Jersey recognizes the impossibility for a criminal defendant to prove that similarly situated suspects of other races were not followed, stopped, or searched for selective enforcement claims.^xxx

But in this case, substantial empirical data showing that RPD officers stop Black drivers at a rate that far exceeds the rate at which they stop white drivers, coupled with Richmond’s history of racial segregation and discrimination, sufficed to support Mr. Moore’s argument that was stopped because of his race.^xxxi. Courts, like the district court in United States v. Moore, should adopt an outcome focused approach, where discretionary policing decisions that result in consistently racialized results are scrutinized without requiring traditional proof of discriminatory intent.

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Aliza Hochman Bloom is an Assistant Professor at Northeastern University School of Law.

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The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

i United States v. Moore, 2024 WL 552794, *13 Case 3:21-cr-00042 (E.D. Va. Feb. 12, 2024).

ii U.S. Const. Am. XIV § 1; id. amend. V.

ⁱⁱⁱ See Guy Rubinstein, Selective Prosecution, Selective Enforcement, and Remedial Vagueness, Wisconsin Law Review (2022).

^iv Whren v. United States., 517 U.S. 806 (1996); see Devon Carbado, (E)racing the Fourth Amendment, 100 Michigan Law Review 946, 958 (2012); Aliza Hochman Bloom, Whack-a-Mole Reasonable Suspicion, 113 California law Review (forthcoming 2024).

v. 517 U.S. 806, 813 (1996).

vi. Id. at 813.

vii See Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 743 (2021).

^viii Students for Fair Admissions, Inc. v. Harvard, 143 S.Ct. 2141 (2023).

ix Wayte v. United States, 470 U.S. 598 (1985); United States v. Armstrong, 517 U.S. 456, 465 (1996).

^x Washington, 869 F.3d at 214.

^xi Armstrong, 517 U.S. at 463-65; see Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 337 n.22 (1998).

xii Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).

xiii Moore, 2024 WL 552794, *11.

xiv https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1165

xv Moore, 2024 WL 552794, *11.

xvi State v. Scott, 288 A. 3d 842, 849 (N.J. Ct. App. 2023). See Aliza Hochman Bloom, Policing Bias Without Intent, University of Illinois Law Review (forthcoming 2025).

^xvii See, e.g., Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Michigan Law Review 2001, 2025–27 (1998).

^xviii The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 103 (rev. ed. 2012).

^xix State v. Andujar, 247 N.J. 275, 303 (2021).

xx Moore, at *18.

xxi Cent Radio Co. v. City of Norfolk, 811 F.3d 625, 634-35 (4th Cir. 2016).

xxii Moore, 2024 WL 552794, *12.

xxiii Moore, 2024 WL 552794, *13.

^xxiv See Rubinstein, Selective Prosecution, Selective Enforcement, and Remedial Vagueness, Wisconsin Law Review 800 (2022); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chicago Kent Law Rev. 605, 616 (1998); Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. Law Rev. 2049, 2097–98 (2016).

^xxv Armstrong, 517 U.S. at 470.

^xxvi Assem. Bill No. 2542, §2(C).

^xxvii AB 2542, § 2(j); Penas Code, § 745, subd. (c)(1).

^xxviii Commonwealth v. Long, 485 Mass. 711, 712, 719 (2020).

^xxix Long, 485 Mass. at 719.

^xxxState v. Nyema, 249 N.J. 509, 530 (2021).

xxxi United States v. Moore, 2024 WL 552794.

Progress and Impediments on Path to Abolition in U.S.

This piece was previously published in the World Coalition Against the Death Penalty Newsletter.

When President Biden won the 2020 election, he became the first successful U.S. presidential candidate to publicly oppose the death penalty. As part of his promise to work toward abolition, the Biden campaign noted that “Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated.” In 2021, the U.S. Department of Justice (DOJ) announced a moratorium on federal executions, recognizing, among other things that “[s]erious concerns have been raised about the continued use of the death penalty across the country.” The President, his campaign, and the DOJ are right to express concern about a punishment that, even setting aside the immorality of state-sanctioned killing, has never been applied fairly, justly, or equally.

That made it especially disheartening when, earlier this year, the DOJ, led by an attorney general appointed by President Biden, announced that it would pursue the death penalty against Payton Gendron. In 2022, Gendron had killed ten Black people in a racially motivated shooting in a Buffalo, New York, grocery store. Before the DOJ announced the capital charges, Gendron had already pled guilty to the murders in New York state court and was serving a life sentence with no possibility of release. Justice, to the extent that it can ever be achieved in such a heinous situation, had already been done.

The American Constitution Society spoke out against the decision, with one of the authors, ACS President Russ Feingold, observing that “By pursuing the death penalty in a single case, regardless of the facts of that case, the federal government validates state-sanctioned killings as a policy and a practice.” The fact is the death penalty in the U.S. is plagued with dysfunction. Any honest assessment of the criminal legal systems used to investigate, capitally charge, try, and ultimately execute people in the U.S. reveals a cruel, random, and ultimately tortuous practice.

Lack of adequate defense resources means that questions around innocence and culpability abound in death penalty cases. The most recent execution in the U.S., that of Ivan Cantu by Texas in February, happened under a cloud of doubt about witness credibility, including one witness who recanted his testimony. A court never considered these claims. To date, at least 195 people sentenced to death in the U.S. have been subsequently exonerated. The true number of people wrongly convicted or sentenced to death is difficult to know, but undoubtedly much higher.

The death penalty also magnifies racial disparities already present in the U.S. criminal legal system. Cases involving white victims are far more likely to result in prosecutors seeking the death penalty, and people of color, particularly Black people, make up a disproportionate share of those people ultimately executed. The mentally ill and intellectual disabled are also disproportionately reflected in the nation’s death row population. Combined with the fact that the death penalty is only actively used in a handful of counties in a handful states, the likelihood of facing execution is more a reflection of demographics and location than a reflection of the heinousness of any given crime.

Even the mechanics of executions are beset with problems. Idaho’s failed attempt to execute 73-year-old Thomas Creech in February (on the same day Texas killed Cantu) is only the most recent example. According to researchers, more than a third of executions attempted in 2022 were botched. States, too often operating in secret, tinker with untested drug protocols, experiment with nitrogen hypoxia, and consider returning to firing squads and the electric chair all in a futile attempt to find a “better” way to kill people. These are macabre experiments that deny the fact that killing is an inherently brutal and inhumane practice.

It is reasonable to see this litany of dysfunction and conclude that the death penalty in the U.S. is broken. In fact, for the first time since pollsters began asking the question, more Americans believe that the death penalty is applied unfairly than fairly. Unsurprisingly, public opposition to the death penalty is also at near all-time high.

But to say the death penalty is broken is to imply that it can be fixed or reformed to operate more justly. It cannot be. ACS understands this and focuses our work on highlighting the legal and moral failings that are inexorably bound up in the death penalty.

The U.S. Constitution’s Eighth Amendment prohibits “cruel and unusual punishments.” Unfortunately, the current U.S. Supreme Court, controlled as it is by a conservative supermajority, has shown a near-total disregard for the cruelty of the death penalty. But the waning of the death penalty in the United States is becoming too hard to ignore. The fact that executions and death sentences are “unusual” has become undeniable.

Executions and death sentences have been trending down since their historic highs in the late 1990s. In the past two decades, eleven states have abolished the death penalty, bring the total of non-death penalty states to 23 out of 50. In addition, six states are currently under governor-imposed moratoria on executions. Even in most states that still have the death penalty, it is rarely used. In 2023, only five states were responsible for the 24 executions nationwide, and only seven states accounted for the 21 new death sentences. Even in these few states, only a handful of counties were responsible for the majority of death sentences and executions.

The rarity of death sentences and execution makes the death penalty all that more arbitrary and cements its unconstitutionality. Those facing death sentences are not the worst of the worst, but simply the random defendants caught up in the political, racial, and regional dynamics of a hopelessly dysfunctional death penalty system. In fact, the Death Penalty Information Center asserts that most of the 24 people executed in 2023 would not even be sentenced to death today, because of “[c]hanges in the law, such as the alternative sentence of life without parole, the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects . . . .”

The death penalty in the U.S. is on its way out. It is losing at the ballot box and in the jury box. Soon the judiciary will have to acknowledge that it is an act, not of justice, but of arbitrary and unconstitutional vengeance. The question is how much more suffering and debasement we are willing to tolerate as the end of the death penalty in the U.S. draws nearer.

Law and the Movement for Reparations

This article first appeared in print in Reparations Daily(ish) Volume 102

When you think about slavery, Jim Crow, and other forms of anti-Black oppression, a few familiar villains probably come to mind—you might think of brutal overseers whipping Black people on plantations, cruel auctioneers ripping families apart, or sadistic police setting dogs on Black protesters. You probably don’t immediately think about the thousands of lawyers who worked behind the scenes to normalize these atrocities, including lawmakers, judges, prosecutors, and private attorneys.

Yet, from the Constitution, which initially counted enslaved people as three-fifths of a person, to the Supreme Court’s doctrine of “separate but equal,” to contracts legitimizing the sale of human beings, the law and lawyers have played a central role in the dehumanization of Black people. Because of this history, lawyers and the law have a unique role to play in the struggle for racial justice and repair.

In New York, the movement to address anti-Black oppression led to the abolition of slavery in 1827 in the state, but that laudable effort did not disentangle New York from the exploitation of Black bodies. Until the Civil War, New York-based banks like JP Morgan accepted enslaved people as collateral for loans, and insurance firms like New York Life offered policies insuring enslavers for loss of enslaved “property.” Locally, Black communities were devastated by anti-Black race riots in 1863, 1900, and 1919—mass atrocities that went largely unprosecuted. And practices like redlining continued to diminish the value of Black property and Black life well into the 20^th century.

Today, as a result of these and similar accumulated injustices, the median white New York household has nearly 15 times as much wealth as the median Black household, a wealth gap 50% greater than the national average. And Black New Yorkers continue to face worse life outcomes in almost every category, from education, to health, to the criminal legal system.

To address the magnitude of this harm, the movement for reparations draws upon familiar legal principles. Just as plaintiffs who have suffered harms like battery, assault, false imprisonment, conversion, and unjust enrichment can bring civil claims to have their harms acknowledged and be made whole, reparations processes offer an opportunity to assess and respond to collective harms and injustices. And while a verdict or money judgment, or reparations process can never fully compensate for past harm, it is a meaningful step toward justice.

As the reparations process begins in New York, the first step will be establishing a comprehensive and accurate record of what occurred. Through historical documents, statistical evidence, and witness testimony, reparations commissions can reconstruct a comprehensive understanding of the past—and how it is connected to the present. One promising recent example of this work is the mammoth report of the California Reparations Task Force, which details the history of anti-Black oppression in that state and its ongoing ramifications for housing, education, political representation, the environment and other fields.

The second, and often more contentious work of reparations is to design remedies, but here as well, reference to “traditional” legal principles is informative. Civil law operates on the principle of placing plaintiffs in the position they would have been in if the harm had not occurred. While we know that this is functionally impossible or very difficult, it is a useful north star. Reparations activists suggest that we should look to see what it would take to achieve realized equality in our society by leveling the racial wealth gap and eliminating racial inequities in health, housing, education and other life outcomes.

History offers several models for direct payments to the victims of past harms and their descendants, including German payments to survivors of the Holocaust, payments authorized by Congress for victims of the interment of Japanese Americans during World War II, scholarships designated for survivors of the Rosewood massacre in Florida, and housing assistance to survivors of housing discrimination in Evanston, Illinois. While it is likely that only the federal government is sufficiently resourced to meet the total cost of reparations for slavery, state and local efforts play a critical role in building momentum and creating the factual record necessary for a national undertaking.

As in the past, lawyers may present some of the biggest obstacles to justice. Conservative legal operatives like Edward Blum, a key figure in the push to dismantle affirmative action, DEI, and voting rights, has signaled his opposition to reparations efforts and sent threatening letters to the Evanston commission in an attempt to derail that effort.

Thankfully, so far, federal courts have refused to strike down reparations efforts, describing the government’s interest in remedying past discrimination by state actors as “unquestionably” compelling, particularly when those acts are well documented and the proposed remedies for those acts are narrowly tailored to address the harm committed. Now, as in the past, it is crucial to develop the robust factual record that will be necessary to support bold action to eliminate racial disparities.

Despite opposition from the likes of Blum, the reparations movement continues to grow. In New York, lawyers in particular, have an opportunity to weigh in on the right side of history, reckon with the past's harms, and help chart a brighter future.

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

Trump v. Anderson Presidential Ballot Case: SCOTUS Must Do Its Job to Protect the United States

The Fourteenth Amendment, Section Three states, “No person shall be a [federal or state official] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government].” Given a textualist read and borrowing from the ordinary rules of statutory interpretation, the plain meaning seems clear.

At the time of its ratification back in 1868, the United States was emerging from a deadly Civil War which killed 620,000 Americans. Back then, everyone knew who the Amendment covered: former Confederates. They were leaders like former Confederate President Jefferson Davis and General Robert E. Lee to name the obvious. It included those confederate soldiers and others who supported the Confederacy in other ways but who previously held sworn federal or state governmental office. Union politicians did not want Confederates taking over what was admittedly a fragile nation. Fast-forward one hundred and fifty-six years, and history seems to repeat itself.

Most everyone knows who participated in the January 6th insurrection aimed at overturning the 2020 election. Citizens watched the attack on the Capital on television with their own eyes. Hours upon hours of the uprising was captured on video. Senators, Congressmembers, staff, and police became direct victims of the violence. Over a thousand people have been charged, convicted, or sentenced to incarceration for what happened that day.

Many of the direct victims have spoken publicly against the events and those involved, including as to former President Trump’s involvement. Hundreds of the criminal defendants have gone on record to blame the former President for inciting them to participate. This includes the ‘Proud Boys,’ a known far-right, neo-fascist militant organization that promotes and engages in political violence, who the former President asked to “stand back and stand by,” during the 2020 presidential debates.

The former President is a defendant in several criminal prosecutions, two of which are tied to the fateful events of January 6th. Within a week of the attack, the former President had been accused of “responsibility” for the insurrection and that his “rhetoric crossed a line” by former political loyalists. Within an hour of the conclusion of the former President ’s related impeachment trial, Congressional leadership stated on the record, “Former President Trump’s actions preceding the riot were a disgraceful, disgraceful dereliction of duty . . . There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”

Not only does this put into question the former President’s character and fitness to be President as well as his willingness to uphold the Constitution, it also gives credence to the criminal charges handed down by grand juries against him. The former President is now alleged to be a felon who, among other things, attempted to invalidate the votes cast by American citizens as is their constitutional right, and who looks more like a criminal than a qualified Presidential candidate. The reasons for keeping the former President off the 2024 ballot are more than compelling; they seem obvious.

Shockingly, despite all this, there is disagreement in the legal community as to whether this should disqualify the former President, even temporarily, from being placed on any primary ballot or the 2024 Presidential election ballot. For those opposing application of Section Three to the former President, the argument is technical with little to no explanation of how an alleged felon who attempted to violate the constitutional rights of our citizens should be in any public office let alone the office of the Presidency.

The disagreement focuses on: whether Section Three is enforceable without congressional implementing legislation; whether the office of the President is covered by Section Three; whether an insurrection occurred; what conduct qualifies as engaging in an insurrection; and, what due process is required under Section Three, if any. The amicus brief of Professor Mark Graber submitted to the Colorado Supreme Court is instructive as to these issues as it provides the historical and legal framework supporting application of Section Three to the former President, and takes head on academia that try to exclude the application of Section Three to the former President. The four opinions in the Colorado Supreme Court decision and the ruling of the Secretary of State of Maine discuss these issues addressed by the Graber amicus brief. Non-lawyer historians have also filed an amicus brief to aid the Court in understanding the historical context of the Amendment in support of its application to the former President.

Still, at the recent oral arguments before the Supreme Court in Trump v. Anderson, the Court seemed fixated on the idea that the Colorado decision to remove the Former President from its ballot would in effect bind the other forty-nine states. This seemed to miss the mark as it is the former President’s conduct detailed above which had that effect. The Court seemed more interested in finding a reason not to exercise its responsibility to interpret and apply the law rather than to give effect to the purpose and plain language of the Amendment.

Further, besides the factual record and the historical record, there are other compelling reasons to believe the former President should not be allowed to be on the ballot of any state in 2024, and which would comport with the plain meaning of Section Three, that are receiving little to no attention in the debate and the oral argument before the Court.

First, like the political environment of 1868, what is at stake is our democracy. What is not at stake is the former President’s “life and limb.” It is not at stake until his criminal cases go to trial, whenever that might be. What is at stake is whether the Court will let an alleged, potentially convicted, felon be President of the United States, a position that would let him subvert the rule of law. Nowhere in the Amendment is there language limiting its application to the people and events of the 1860s, exempting the office of the President, as some argue. If it did, the amendment would say so.

Second, the former President deserves his day in court to prove his innocence as to whether his acts criminally contributed to the events of January 6th. However, under the self-executing language of Section Three, the former President should not be on the ballot of any state unless by an act of Congress removing the disqualification as stated in Section Three.

Third, justice moves too slowly to both afford a criminal defendant due process and still achieve resolution before the election, which is to the country’s benefit, in this particular instance. That pace could result in a criminally charged but not yet convicted former President returning to the highest office to the detriment of the country. The Supreme Court is a court of equity and it should act accordingly.

The language of Section Three protects the country from what the “Second Founders” wanted to protect us from: those who attack the government being in government. If “no person is above the law” means something, the Supreme Court should affirm the Colorado Supreme Court and remove the former President from all ballots.

Colorado is not to blame here; the former President’s conduct is. If the Court finds differently, this would let a federal officeholder potentially avoid both federal and state prosecution. This would hardly seem like what the “Framers of the Second Founding” would have wanted when drafting an amendment to protect the country from those who participate in or are involved in a violent uprising against the government. The state courts have done their job; it’s time for the Supreme Court justices to do theirs.

Jim Saranteas is a practicing attorney with over twenty years of experience at the trial and appellate levels in civil litigation. His accomplishments include successful arguments and decisions before, among others, the Illinois Supreme Court. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. This year, Saranteas is assisting Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

Bad Neighbors: How Big Polluters and the Supreme Court Threaten Our Air

In an era where the phrase "unprecedented times" has become all too common, another remarkable chapter is set to unfold in our highest court. On February 21, the Supreme Court is poised to bypass traditional procedure, hearing a case from the shadow docket before the D.C. Circuit reaches the merits—a move that sidesteps the D.C. Circuit and ventures away from standard court review—at the request of polluters who don’t want to reduce their smog-causing pollution that blows across state lines.

The result could leave millions unprotected from harmful smog pollution while threatening the balance of power within our judicial system.

Air Pollution Makes for a Bad Neighbor

To understand the significance of this case, we must begin with wind. Pollution from sources including fossil fuel power plants and factories doesn’t stop at state lines, but instead can travel hundreds of miles, and create serious air quality problems far from the original offender. Because of prevailing wind patterns in North America, pollution from uncontrolled and undercontrolled sources in places like Texas and the Ohio River Valley can cause air quality problems far away in the Upper Midwest, the Mid-Atlantic, and the Northeast, even if those downwind areas have taken steps to strictly control their own polluters.

This is not a trivial matter: the air pollution from upwind states is so severe, it can make it nearly impossible for downwind states to attain and maintain “EPA’s health-based air quality standard for ground-level ozone (or “smog”), known as the 2015 Ozone National Ambient Air Quality Standards (NAAQS),” presenting a thorny problem of interstate equity.

Fortunately, the Clean Air Act has a solution to this: every state is not only required to develop and submit plans to EPA detailing how they will attain and maintain air quality standards such as the Ozone NAAQS within their borders, but is also required to develop plans to prevent their pollution from hindering other states from attaining and maintaining air quality standards. However, the unfortunate reality is that states often fall down on that second obligation; in fact, 23 states either submitted “do-nothing” plans to address their cross-state ozone pollution or didn’t bother submitting plans at all.

Downwind states faced deadlines in 2023 and 2026 for attaining the Ozone NAAQS, and so EPA stepped in with the Good Neighbor Plan, designed to ensure states are being good neighbors by reducing the pollution from coal plants and other industry that contributes significantly towards downwind smog problems in other states. The rule, finalized in March 2023, updates a system that has been in place in the eastern U.S. for over a decade that has successfully and cost-effectively cleaned up some of our worst sources of air pollution.

The 2023 Good Neighbor Plan

In many ways, the Good Neighbor Plan is just the latest in a long line of ozone transport rules starting with the 1998 NOx SIP Call, the 2011 Cross State Air Pollution Rule, the 2016 Cross State Air Pollution Update, and the 2020 Revised Cross State Air Pollution Update. These rules have been court-validated, including by the DC Circuit in 2023, and the Supreme Court in 2014.

Like those rules, the Good Neighbor Plan functions by determining first which areas across the country are failing or having trouble maintaining national ozone standards and what states are contributing pollution to those areas, and then setting two types of emission reductions for those states that are “linked” to the downwind ozone problem spots. In the Good Neighbor Plan, those reductions take the form of (1) a set of allowances for ozone precursor pollution from power plants, and/or (2) a set of emission limits for other large industrial sources of ozone precursor pollution, like incinerators, pulp mills, pipelines, and glass factories. These requirements phase in over several years, with the Good Neighbor Plan becoming fully implemented in 2026.

The health benefits are monumental. EPA projects that when fully implemented in the 23 states it covers, the rule will:

prevent approximately 1,300 premature deaths,
save over 2,300 visits to hospitals and emergency rooms,
cut asthma symptoms by 1.3 million cases,
avoid 430,000 school absence days, and
prevent 25,000 lost work days.

The rule is also projected to bring $13 billion in annual net benefits for decades to come. But despite these clear advantages and the Clean Air Act’s mandate that states address air pollution they send downwind, several states and polluter industry groups have stymied implementation of the rule by filing challenges to EPA’s authority to address ozone transport in multiple regional Circuit courts. These cases have delayed critical health and environmental protections, but don’t reach the merits of the Good Neighbor Plan itself. As those cases reach the merits, some states could be restored to the Good Neighbor Plan, if EPA’s authority to address ozone transport where the states have failed to is vindicated.

Nonetheless, today the Good Neighbor Plan is being implemented in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin, and California is subject to requirements that are scheduled to take effect in the 2026 ozone season. In January, EPA also proposed adding five new states to the rule, expanding it to include Arizona, Iowa, Kansas, New Mexico and Tennessee.

Even with the rule only partially implemented, the public is benefiting. Harmful ozone-season NOx pollution (a key smog precursor pollutant) has dropped 18 percent in the 10 states that implemented the program in 2023. And under the entire collection of cross-state ozone transport programs, ozone season NOx emissions have dropped over 50 percent since 2015.

But many communities are still waiting to experience the full public health and economic benefits of the rule. Pursuant to temporary court orders, EPA is currently not implementing the rule in 12 states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia. What’s more, the states who are experiencing the benefits of the Good Neighbor Plan could soon see these improvements slip away.

Understanding Legal Challenges to the Good Neighbor Plan

Polluter states and industry groups are challenging the Good Neighbor Plan before the D.C. Circuit Court of Appeals. As unfortunate as those challenges may be, procedurally, that’s normal. And also normal is the fact that the D.C. Circuit rejected those challengers’ requests that the Good Neighbor Plan be stayed (as noted above, ozone transport rules like the Good Neighbor Plan have been repeatedly validated by the courts) and directed the parties to move forward with briefing on the merits.

But what’s not normal is that last fall those same challengers–including the National Mining Association, American Forest & Paper Association, Midwest Ozone Group, Enbridge, Interstate Natural Gas Association of America, and American Petroleum Institute and the attorneys general of Indiana, Ohio, and West Virginia–filed applications on the Supreme Court’s shadow docket, seeking to go around the D.C. Circuit’s order rejecting a stay. Less normal still is that the Supreme Court requested briefing and argument from the parties. As a result, the Supreme Court could be deciding the future of the Good Neighbor Plan despite the D.C. Circuit never having a chance to review merits briefs, hear oral argument, or issue a decision. Effectively, polluter states and industry have tried to jump the queue right to the Supreme Court, sidelining the D.C. Circuit in the process, and the Supreme Court appears to be going along with it.

That’s not how court review is supposed to work.

Congress directed that national Clean Air Act rules like the Good Neighbor Plan be reviewed first of all in the D.C. Circuit, enabling any controversy to be fully developed with briefs, argument, and a written opinion, before a case might arrive on the Supreme Court’s docket. By upending this normal procedure, the D.C. Circuit is stuck in limbo, the Supreme Court is deprived of a full record and fully developed arguments, and the public is left wondering whether critical air quality protections will be stripped away. Given that the Supreme Court in 2014 upheld a prior ozone transport rule, the 2024 Supreme Court’s willingness to short-circuit the process here with the Good Neighbor Plan is troubling.

While legal and environmental experts await the Supreme Court’s decision, it is children, families, and vulnerable communities that have the most to lose. For people in states subject to harmful smog from upwind polluters, this rule is their primary defense and their greatest hope of addressing cross-state air pollution.

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Zachary Fabish is a senior attorney with the Sierra Club's Environmental Law Program, where he focuses on power sector litigation and EPA rulemakings.

How the SEC Whistleblower Program Is Changing the Enforcement Landscape

Every year, citizens who have witnessed wrongdoing at work are reporting it to the United States Securities and Exchange Commission (SEC). In fact, the number of people who are reporting wrongdoing to the SEC is on the rise, and this has a lot to do with the SEC whistleblower program.

What Is the SEC Whistleblower Program?

The SEC whistleblower program was created by Section 922 of the Dodd-Frank Act, which was passed after the 2007-2008 financial crisis. It was designed to encourage people to report legal violations to U.S. regulators by offering a financial incentive, as well as protections against retaliation.

Prior to the 2007 financial crisis, regulators had to work relatively hard to uncover securities laws violations, relying on companies to self-report and even random audits. As financial markets developed and securities became more complex, regulators were left struggling to understand the complex financial instruments that were being used to hide fraud and securities laws violations. What they needed were whistleblowers and that’s precisely what the SEC whistleblower program delivered.

Most whistleblowers are reluctant to raise concerns given the risk it poses to their career. By offering whistleblowers anonymity, protection from retaliation and a financial reward, the SEC addressed the key concerns that most whistleblowers had. In just over ten years since it launched, the program has been directly responsible for the SEC collecting over $6 billion in fines, of which more than $1.5 billion will be returned to harmed investors.

Under the program, an individual who voluntarily reports original information that leads to a successful enforcement action by the SEC and a fine of over $1 million may be entitled to 10-30% of the fine as an award. The program has paid out just under $2 billion to whistleblowers already. Reporting a violation can result in a large whistleblower award. The average award is about $5 million, and the largest award so far, paid this year, was nearly $279 million.

Importantly, the awards paid by the SEC come directly from the sanctions collected from violators. Section 922 of Dodd-Frank established an Investor Protection Fund, ensuring that no money would be taken or withheld from harmed investors to pay whistleblower awards. As a result, the whistleblower program is ‘free’ to the taxpayer. One drawback of this approach is that, on rare occasions, if a whistleblower’s tip leads to a fine, but the company cannot pay the fine (for example, because the company is bankrupt), the whistleblower will not be paid their award.

Who May Participate in the Program?

Almost anyone is eligible to participate in the whistleblower program. It is difficult, but still possible, for an attorney working for a company to qualify for a whistleblower award. However, typically an attorney would only qualify in extreme circumstances, such as where the attorney was needed to blow the whistle to stop a fraud being perpetrated against the Commission. This could arise if an attorney found out their client was illegally destroying evidence in an effort to scupper an SEC investigation.

The rules for non-attorneys who work in the compliance or audit department are more relaxed. This is a result of the SEC’s attempt to strike a balance between the need to stop fraud quickly and the need to allow a company to use its own system for self-reporting violations. For example, the program rules allow non-attorneys to participate in the whistleblower program if the disclosure of their information is necessary to stop imminent harm to investors, or if they have already reported their concerns internally. This ensures that non-attorneys working in compliance or audit are not incentivized to report to the Commission until the company has had a chance to deal with the issue, unless there is a threat of imminent harm to investors.

The SEC also allows people who were involved in the wrongdoing to participate in the program and claim awards. A person who participated in the wrongdoing will have the size of their award reduced, but is not disqualified from claiming an award unless they are criminally convicted as a result of their involvement.

The SEC also provides awards to whistleblowers who report concerns within their company, but only if they report to the SEC within 120 days of reporting to their company. This means that an individual who has already reported the wrongdoing within their company can still participate in the program provided they act quickly. This 120-day rule demonstrates that while the SEC wants whistleblowers to come forward, the Commission also wants to incentivize companies to develop good internal whistleblower channels by providing them with this 120-day window to self-report and potentially obtain a declination for doing so. Statistics show that most whistleblowers report their concerns in their place of work before reporting to the SEC. As a result, lawyers representing companies who could be fined by the SEC should ensure that their clients have good internal whistleblower channels to address internal complaints and self-report violations quickly.

The whistleblower program also provides an opportunity for honest companies who see competitors breaking the law. If a company discovers that a competitor has paid a bribe, or lied to investors, they should explore reporting the violation to the SEC. Not only might this put an end to the misconduct, it could also result in a whistleblower award. While the SEC won’t pay an award to a corporate entity, there is nothing to stop individuals from reporting on behalf of a company.

What Protections are Provided to Whistleblowers?

Whistleblowers who report potential securities laws violations to the SEC are protected against retaliation under both Sarbanes-Oxley (SOX) and Dodd-Frank. Both laws protect whistleblowers from all forms of retaliation, including termination, demotion, harassment, or other adverse actions. However, the laws have different scopes of application. For example, whistleblowers under SOX are protected if they report to their supervisor or the federal government. On the other hand, whistleblowers under Dodd-Frank are only protected if they report to the federal government. Similarly, before going to court, whistleblowers under SOX must first file a complaint with the Occupational Safety and Health Administration within 180 days of the alleged retaliation. Whistleblowers under Dodd-Frank have no such obligation and can bring direct legal action.

The SEC whistleblower program also recognizes that a whistleblower’s best form of protection against retaliation is anonymity. As a result, the SEC allows whistleblowers to report anonymously, provided they use an attorney. This allows the whistleblower to have their attorney communicate with the Commission on their behalf. This ensures that the SEC does not even have the whistleblower’s identity, and so there is no chance it could be revealed.

What Legal Violations Are of Most Interest to the SEC?

The SEC is highly interested in fraud that harms investors and Ponzi schemes. Other violations the SEC also pursues aggressively are violations of the Foreign Corrupt Practices Act (FCPA). FCPA violations typically involve companies paying a bribe to a foreign government official in exchange for a contract, license, permit or business opportunity, and such violations attract some of the largest fines issued by the SEC.

Conclusion

At base, the SEC whistleblower program has reshaped the enforcement landscape. Where previously the SEC needed to actively seek out violations to investigate, the SEC is now inundated with thousands of tips each year. Incentivizing individuals with valuable information to come forward and report securities violations has led to a surge in high-quality tips and information, significantly enhancing the SEC’s ability to detect and investigate financial misconduct. Whistleblowers have played a pivotal role in uncovering complex fraud schemes and corporate wrongdoings that might otherwise have gone undetected. The results of the program are not hypothetical and can be seen in the billions of dollars the SEC has collected as a result of the tips it has received. Consequently, the SEC whistleblower program has become a critical tool in the agency’s efforts to maintain the integrity of the financial markets and protect the interests of investors.

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John Joy is the Managing Attorney of FTI Law PLLC, a New York law firm that specializes in representing SEC and FCPA whistleblowers. John has worked for almost a decade on financial crime and corruption cases around the globe. He is a featured expert in the field on LexisNexis and regularly acts as an expert commentator in business and legal media on corporate crime and international corruption issues.

The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

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