JOL Online Article

By: Alina Veneziano*

Abstract

This Article traces the history of extraterritorial regulation, as applied to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), through an examination of underlying domestic circumstances, such as criminal prosecutions, ideology, and globalization. Legal analyses have focused either on the problems of prosecutorial decision-making domestically or the history, shortcomings, and recommendations of RICO. This Article departs from the “either-or” approach and instead combines the two paths into a single analysis of these domestic effects on the extraterritorial regulation of RICO cases. In other words, its purpose is to analyze the phenomenon of extraterritoriality under the basic principles of criminal law, including the duties of prosecutors, the roles of courts, and the ideals that influence these respective parties. While most scholarship relating to extraterritorial applications tends to analyze such issues under international law principles, such as prescriptive jurisdiction or via international comity, sovereignty, or congressional intent, this Article strives to understand these issues on a national level.

While early judicial holdings have been mainly territorial, and courts have thus resisted utilizing extraterritorial regulation, a different situation is presented with organized crime. It is easily the case that organized crime schemes cross multiple borders, and, with the advent of technological advances and globalization, the methods of manipulation and evasion are multiplying faster than law enforcement can keep up. Congress remedied this situation by drafting RICO to target organized crime in a statute that provides for both criminal and civil suits. The problem is that the courts have interpreted this arguably clear statute in a manner that negates RICO’s original intent, force, and meaning. It is these holdings that set the stage for the next era in U.S. history in dealing with transnational organized crime and RICO. Such rationales are based on attendant circumstances such as the resources of prosecutors, ideology, and globalization.

But there is a problem within the U.S. democratic system: lack of resources, ideological inclinations, and the struggle to balance adherence to congressional intent with the consistent application of relief to injured parties. The realizations/recommendations identified by this Article are threefold: (1) to understand that is perfectly permissible for Congress to be concerned with transnational organized crime only as it applies to domestic conditions; (2) to identify a sufficient U.S. nexus requirement that is consistent in civil RICO applications and reduces the risk of foreign resentment; and (3) to implement training in local, state, and federal law enforcement regarding RICO’s intended coverage and geographic scope. While foreign nationals should demonstrate the domestic injury requirement, this same reasoning should not extend to U.S. nationals. Instead, U.S. claimants under a U.S. statute should be able to assert a civil RICO claim without the unprecedented domestic injury requirement in RJR Nabisco v. European Community.[1] The U.S. nexus requirement for U.S. nationals is found in their citizenship, which should be interpreted in a manner as to satisfy the domestic injury requirement when the private RICO claimant is a U.S. national. Such realizations reduce foreign infringement, case-by-case distinctions, and foreign-cubed transactions. Critically, such recommendations have the secondary effect of alleviating prosecutorial overload by shifting some cases to private claimants, reducing the cases that prosecutors bring that fall outside the types of cases envisioned by Congress, and providing more consistent application without the need for judicial or congressional involvement. By redefining the scope and reach of RICO, internal efficiencies are achieved and this, in turn, affects the U.S. enforcement mechanisms on the international field.

 I. Introduction

A. Outline

This article examines the Racketeer Influenced and Corrupt Organizations Act[2] (“RICO”) from before its enactment to the present day. It examines how courts have treated claims asserting RICO violations instituted by either the government or private claimants and involving domestic, foreign, or transnational crimes. The problem with recent analysis of this issue is that cases of organized crime often cross multiple borders, implicating various international law principles such as jurisdiction to prescribe and risking possible violations of international comity and foreign interference. This problem is made worse by recent judicial resistance to applying RICO abroad as well as the recent burdens the Supreme Court has imposed upon private claimants seeking to bring a civil RICO claim.

By analyzing these issues through domestic lenses, this Article demonstrates that it is imperative that the courts and political branches return to Congress’ original intent when it first enacted RICO. To do this requires the understanding that RICO not be expanded to encompass conduct not originally intended to be regulated thereby, and also the understanding that in order to combat transnational organized crime—which is the Act’s very objective—the geographic reach of RICO must necessarily not be unduly restricted. This Article promotes such an understanding of the importance of regulating transnational organized crime within the U.S. domestic system.

This Article proceeds in the following manner. Part I defines white collar crime and organized crime, traces RICO’s legislative history, and details the circumstances in the United States regarding organized crime that prompted RICO. Part II analyzes case law occurring after RICO’s enactment and how the judiciary interpreted RICO prior to Morrison v. National Australian Bank Limited’s[3] clear indication test, and then briefly explains the Morrison opinion and its effect on RICO actions. Part III proceeds to analyzes the circuit split that the Morrison opinion created, including the judiciary’s struggle to define what it means to be domestic when analyzing RICO’s focus.

Part IV briefly discusses two noteworthy earlier opinions. Part V describes the RJR Nabisco, Inc. v. European Community[4] opinion in detail. Part VI discusses the critical implications of the RJR Nabisco holding. Lastly, this Part illustrates the inconsistencies of the current process of extraterritorial extensions of RICO. Building upon these implications, Part VII discusses the current domestic situation in the United States regarding the feasibility and practicality of bringing RICO actions. This Part is offered to explain why the judiciary has tended to limit a statute that clearly applies to foreign conduct in the wake of an increasing international world with persisting transnational crime. Part VIII of this Article outlines a few solutions set forth by scholars and then provides the author’s realizations and recommendations when trying to balance transnational criminal and civil RICO actions with the internal structures of the United States. Lastly, Part IX provides the Article’s conclusions.

B. White Collar Crime and Organized Crime Defined

 1. What Is White Collar Crime?

In 1940, Edwin H. Sutherland, an American sociologist and criminologist, published a unique and revolutionary article, White-Collar Criminality, on the definition of organized crime.[5] In the article, he related crime to business in an effort to develop theories for criminal behavior.[6] White collar crimes, he continued, are not different from other crimes but must be justified and analyzed under the criteria used when dealing with other crimes.[7]

 2. What Is Organized Crime?

Donald R. Cressey, also an American sociologist and criminologist, has contributed substantially to the understanding of organized crime through his various publications. He traced the origins of organized crime to the sale of illicit goods and services, the profits of which are subsequently invested in licit enterprises.[8] It is when these licit enterprises—which operate as criminal syndicates—began to undermine the political and economic spheres “that the real trouble begins.”[9] As syndicates began to “invest in every conceivable kind of legitimate business,” substantial differences emerged between “crime” and “organized crime.”[10] What was the result? Nothing less than impairment to free competition and a monopoly on the government.[11]

Additionally, the Senate Report on the Organized Crime Control Act of 1969 noted that organized crime, including illegal gambling, narcotics trafficking, loan-sharking, and fraudulent bankruptcies, was present in both cities and suburban areas.[12] This practice, the report found, has encouraged street crime, started to infiltrate organized labor, and influenced legitimate businesses via “physical terror,” “psychological intimidation,” “economic retaliation,” and “political bribery,” amid “citizen indifference and government acquiescence.”[13] The report identified obstacles to prosecution including evidence gathering, high standards of proof, the unsuccessful use of informants, and inability to obtain documentary evidence.[14]

C. Legislative History Leading Up to RICO’s Enactment

RICO is found in Title IX of the Organized Crime Control Act of 1970.[15] The RICO legislative drafting process was focused on “certain forms of criminal conduct—violence, the provision of illegal goods and services, corruption in government and labor unions, and commercial fraud.”[16] It was well understood that RICO would be applied beyond organized crime; this idea was one of the special challenges posed by criminal law and simultaneously examined during the drafting process by Senator John Little McClellan (Chairman of the Committee), Senator Roman L. Hruska, and G. Robert Blakey (consultant and adviser to the Committee), amongst other key senators.[17] Professor G. Robert Blakey, drafter and expert on RICO, notes that the statute’s legislative history demonstrates two movements: “[o]ne direction narrowed the predicate offenses to exclude political or social demonstrations; the other enlarged the predicate offenses to include white-collar crime.”[18] A significant objective was to prevent such criminal behavior from “interfer[ing] with free competition and . . . burden[ing] interstate and foreign commerce.”[19] With this as a backdrop, courts start their analysis with the “question of whether and, if so, how a free society can protect itself when groups of people . . . turn crime into an ongoing business.”[20]

D. Context During and After RICO’s Enactment

RICO was enacted primarily to eradicate the organized crime that had perplexed U.S. law enforcement for decades and caused the loss of billions of dollars from the U.S. economy.[21] Since RICO’s enactment in 1970, the statute has been used to combat the Mafia,[22] the Latin Kings street gang,[23] and many seemingly legitimate businesses engaged in illicit activities.[24] Additionally, it has been used as a weapon against white collar crime[25] and even political movements, such as anti-abortion enterprises who lack a financial motive,[26] which is in stark contrast to RICO proceedings immediately after enactment.[27]

In fact, in 1985, the Supreme Court in Sedima v. Imrex Co.[28] stated that “nstead of being used against mobsters and organized criminals, [RICO] has become a tool for everyday fraud cases brought against ‘respected and legitimate’ enterprises.”[29] Whether the Court saw this expansion as an inevitable result of RICO or perhaps as a political question, its analysis based on federalism concerns is interesting:

It is true that private civil actions under the statute are being brought almost solely against such defendants, rather than against the archetypal, intimidating mobster. Yet this defect—if defect it is—is inherent in the statute as written, and its correction must lie with Congress. It is not for the judiciary to eliminate the private action in situations where Congress has provided it simply because plaintiffs are not taking advantage of it in its more difficult applications.[30]

Finally, as enacted, RICO expressly authorized criminal and civil sanctions against all types of organized crime, such as “simple political corruption,” or “sophisticated white-collar crime schemes, as well as “traditional Mafia-type endeavors.”[31] The primary fears that RICO was an “illegitimate” litigation tool have all vanished; RICO is now regarded as the primary “tool of choice for intricate criminal and civil litigation.”[32] The legislative history briefly mentioned above adequately demonstrates the congressional intent that RICO be used to provide the “new weapons of unprecedented scope for an assault upon organized crime and its economic roots.”[33] It is now, at this stage, up to the courts to abide by such congressional intent when adjudicating cases, whether primarily within a domestic context or even when deciding cases with foreign elements.

Extraterritorial crimes receive a slightly different analysis. It has been no secret that courts have relied heavily on the “‘liberally construed’ language” to expand on the definition of possible enterprises which may fall “under the modern RICO net.”[34] However, an underestimated yet critical factor that has plagued the enforcement of RICO has been globalization. This has curtailed the statute’s power when dealing with both domestic cases as well as cases with a transnational character.[35] It is possible for transnational organized crime to span continents, with the conduct occurring, for instance, in one nation and the electronic transfer of funds taking place in another.[36] Thus, globalization has allowed the members of these organized crime schemes to capitalize on advanced technologies and operate these illicit schemes under the veil of anonymity.[37]

What has this trend meant for the United States? To start, courts have been forced to decide cases involving one or more foreign elements.[38] But this development has created a problem for the U.S. judiciary: “[W]hen is a RICO case too far removed from American soil to be decided by an American court?”[39] This question of extraterritoriality has been something that has caused confusion within the U.S. lower courts. While crimes are usually adjudicated in the place where the conduct occurs, Congress has the authority to enact laws that reach beyond the territorial borders of the United States.[40] Such power is not forbidden by the Constitution nor international law, but it is a hotly debated topic.[41]

E. RICO’s Text

While RICO was “an innovation,” it did not operate to displace or preempt other federal or state laws.[42] Under RICO, the government can bring charges against an individual or entity that has engaged in a pattern of racketeering for both civil and criminal sanctions,[43] while private civil claimants may bring a private cause of action.[44] Section 1962(a)-(d) created four criminal offenses regarding organized crime activities in relation to an enterprise.[45] First, Section 1962(a) makes it unlawful to receive income derived, directly or indirectly, through a pattern of racketeering activity in relation to an enterprise.[46] The challenge for prosecutors here is establishing the connection between this income or investment and racketeering.[47] Next, Section 1962(b) makes it unlawful to acquire or maintain, directly or indirectly, an interest in an enterprise from a pattern of racketeering activity.[48] The “indirectly” language here and in the other prohibitions indicates that mere “acquisition, maintenance, or control of an enterprise” may be sufficient.[49] Third, Section 1962(c) makes it unlawful for a person employed by or associated with an enterprise to conduct or participate, directly or indirectly, in the enterprise’s affairs through a pattern of racketeering activity.[50] Thus, the “conduct” and “participate” language require that a pattern of racketeering also be demonstrated.[51] Lastly, Section 1962(d) makes it unlawful to conspire to violate any of the above subsections.[52] While the word “conspiracy” evokes mixed feelings for prosecutors, this provision clearly criminalizes the pattern of a single conspiracy based on the “maintenance or infiltration of an ‘enterprise’ through racketeering activity.”[53] The statute makes clear that “[t]he provisions of this title shall be liberally construed to effectuate its remedial purposes.”[54]

RICO defines an enterprise as “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”[55] In other words, this so-called enterprise “need not be a legal entity,” but should instead be thought of as “associations in fact.”[56] For instance, “f such an association-in-fact has a common purpose, continuity of structure and personnel, and a structure distinct from the pattern of racketeering, it is a RICO enterprise.”[57] While this interpretation in no doubt set the stage for the expansive readings that courts have adopted, it is nevertheless true that some enterprises are formed to engage in criminal acts but also have legitimate purposes.[58] Furthermore, the Supreme Court in United States v. Turkette[59] noted the three elements necessary to show the existence of an “enterprise” for RICO purposes: (1) an ongoing enterprise; (2) evidence that the associates function together for a common purpose; and (3) an existence of the entity “separate and apart” from the pattern of activity in which it is engaged.[60]

Next, the RICO charge must allege a pattern of racketeering activity, which the statute defines as “requir[ing] at least two acts of racketeering activity . . . within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity.”[61] This pattern requirement is malleable and elastic, but not vague.[62] For instance, the Supreme Court in Sedima stated that “while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a ‘pattern.’”[63] The Court went on to note that legislative history concurs on this point as well.[64] Additionally, it is important to note that these offenses are not different or new crimes addressed by RICO; they are acts that are already illegal and punishable under existing state or federal law.[65] But to be actionable, there needs to be a relationship—more than a mere “single, isolated transaction”[66]—between the predicate acts, the racketeered activity and the threat of criminal activity, which usually involves factors such as “common perpetrators, methods of commission, victims, or motive.”[67]

The criminal offenses under RICO are coined “predicates,” and these predicates must be “chargeable” under State law or “indictable” under federal statutes of the U.S. code.[68] Furthermore, the operations or activities of the enterprise must affect “interstate or foreign commerce.”[69] Thus, it appears that every RICO violation requires at least two factors in addition to foreign or interstate commerce: “an enterprise and a pattern of racketeering activity.”[70]

RICO also created a private cause of action in Section 1964(c) for civil remedies that allows, or grants standing to, “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter [18 U.S.C. § 1962] may sue therefor in any appropriate United States district court and shall recover threefold the damages. . . .”[71] The civil remedy provision is preferable for private claimants because they do not have to satisfy the strong procedural protections that apply in a criminal case for defendants such as the proof beyond a reasonable doubt standard or the strict warrant procedures.[72] It is also preferable due to the possibility of treble damages and attorney fees as remedies.[73] However, now RICO adds civil sanctions, which not only lowers the burdens for law enforcement agencies and district attorneys, but also gives “courts greater flexibility to disrupt the activities of a criminal enterprise.”[74] The Supreme Court has stated that this civil provision is meant not merely to compensate victims but also to turn them into private prosecutors “dedicated to eliminating racketeering activity.”[75]

Thus, RICO is a special statute, distinct from other civil or criminal statutes in that it focuses “not on the individuals committing criminal activities but rather on the criminal enterprises.”^[76] But what happens when foreign elements are added to the mix? In RICO cases involving multiple nations, courts have adhered to the following analysis in determining the propriety of extraterritorial regulation: first, a conduct test, which asks “whether the United States has the power to reach the conduct in question under traditional principles of international law”; and second, an effects test, which asks “whether the statutes under which the defendant is charged are intended to have extraterritorial effect.”[77] The following Parts demonstrate this process.

II. RICO and the Pre-Morrison Test & RICO and Morrison

A. The Pre-Morrison Test

RICO cases prior to the 2010 Morrison decision tended to incorporate either some form of the conduct or effects tests. Whether Congress intended this statute to be applied beyond the United States was apparently unclear, despite the references to foreign commerce in the text of RICO. Nevertheless, early cases decided that there was congressional silence in RICO as to its geographic reach.[78] In United States v. Noriega,[79] decided in 1990, the district court determined that “[w]hen Congress passed RICO, it was primarily concerned with eradicating the destructive influence of organized crime on our society.”[80] How the court in Noriega explained Congress’ intention in light of RICO’s purpose is illuminating:

Keeping in mind Congress’ specific instruction that RICO be applied liberally to effect its remedial purpose, the Court cannot suppose that RICO does not reach such harmful conduct simply because it is extraterritorial in nature. As long as the racketeering activities produce effects or are intended to produce effects in this country, RICO applies.[81]

It appeared to be the effect on the U.S. society, and not the locus of the alleged criminal activity, that prompted courts to take a more active role in expanding RICO abroad despite the alleged congressional silence. The result in Noriega, which involved RICO violations in the United States and abroad, was that the court had “[j]urisdiction over Defendant’s extraterritorial conduct . . . both as a matter of international law and statutory construction.”[82]

In analyzing cases involving the extraterritorial applications of U.S. statutes in this era, such as RICO, courts have relied on the presumption against exterritoriality to determine geographic scope.[83] However, this did not yield consistent standards or procedure. Some courts and individual judges have decided that Congress did not intend for RICO to apply beyond the United States’ borders.[84] Other courts have held that even though RICO is silent as to its geographic reach, courts can look to the approaches used in other areas of law, such as securities or antitrust law,[85] which have granted extraterritorial applications in some cases. Yet some courts have incorporated forms of the conduct[86] or effects[87] tests as long as the plaintiff alleges some domestic effect on interstate commerce in their RICO claim.[88]

Thus, this era was categorized by judicial efforts to discern congressional intent by utilizing the presumption against extraterritoriality and examining the case under some form of the conduct/effects tests. Nevertheless, it was generally agreed that some U.S. nexus, such as domestic racketeering activity or domestic enterprise, was needed to adjudicate a case with foreign defendants.[89] However, such subjective analyses can lead to varying interpretations and unpredictable results, as the following Parts will prove.

B. The Morrison Test

The Morrison case involved a class action lawsuit of Australian investors against an Australian bank, National Australia Bank (NAB), in connection with alleged fraudulent securities on Australian and other foreign exchanges.[90] It was a foreign-cubed transaction[91] before the Supreme Court involving allegations of fraudulent misrepresentation in the records of NAB’s U.S. subsidiary in Florida, HomeSide, which also appeared in NAB’s annual financial statements.[92] The Supreme Court, in an opinion by Justice Scalia, reinvigorated the presumption against extraterritoriality and asserted that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.”[93] Thus, if a statute is silent or ambiguous as to its geographic reach, then that particular provision does not have an extraterritorial force. At this point, courts must determine the legislative “focus” of the statute to see if the case is sufficiently domestic to allow for judicial adjudication.[94]

Little by little, courts began to narrow RICO’s reach in a way that would have been considered highly unlikely under the prior, broader interpretations attached to the definition of “enterprise.”[95]

Courts are now to look first at the statute itself to discern whether congressional intent exists as to that provision’s extraterritorial application. While it is debated what kind of evidence can be used to rebut the presumption against extraterritoriality, the Supreme Court in Morrison did assert that this is not a clear rule and that “[a]ssuredly context can be consulted as well.”[96] If none can be discerned, there is another chance for that provision to be applied abroad: the domestic focus analysis. This “focus” analysis is important when the statute is silent because it allows for U.S. adjudication only if the case presents a domestic nexus, as determined through an analysis of “the objects of the statute’s solicitude.”[97] However, cases which fail the domestic focus analysis are dismissed as an impermissible use of extraterritoriality.

But what does this mean for claimants seeking to apply RICO extraterritorially? As a starting point, by combining the analyses from pre-Morrison cases with the Morrison holding, one result is evident among the judiciary in cases prior to RJR Nabisco: RICO has no extraterritorial application.[98] Courts have come to the conclusion that it is clear that RICO is silent as to its geographic reach.[99] The question at this stage quickly became how to apply Morrison’s focus analysis to RICO. Professor Franklin A. Gevurtz nicely explains how the process proceeded for courts at this stage:

“[U]nder Morrison this requires asking whether the thing corresponding to RICO’s statutory focus was inside the United States in the case (in which event there was no extraterritoriality to trigger the presumption) or whether the thing corresponding to RICO’s focus was outside the United States in the case (in which event the presumption against extraterritoriality blocks application of RICO). Of course, to answer this question, federal courts must determine RICO’s statutory focus. . . .”^[100]

In other words, what is the focus of RICO? What is “domestic” under Morrison? Unfortunately, the Supreme Court has not been very helpful in guiding the lower courts on how to discern a statute’s “focus,” especially when it had the chance to do so in Morrison.[101] This led to a split amongst the lower courts, as the next Part outlines.

III. The Post-Morrison, Pre-RJR Nabisco Split: What is Domestic?

Post-Morrison, pre-RJR Nabisco cases analyzed whether the case is sufficiently domestic by using one of four approaches: (1) the “enterprise” approach, (2) the “predicate offenses” approach, (3) the “pattern of racketeering” approach, or (4) the “predicate statute’s geographic reach” approach. These approaches, examined in this Part, represent the different ways courts have defined the focus of RICO.

A. The Contending Approaches

1. The Enterprise Approach

The “enterprise” approach is articulated best by the Second Circuit in Cedeño v. Intech Group, Inc.,[102] decided in 2010. In Cedeño, a private claimant, a national of Venezuela, sued Venezuelan government officials for laundering funds, which were obtained via “fraud, extortion, and private abuse of public authority,” through U.S. banks.[103] The defendants, the Venezuelan officials, had sought to dismiss the claim on the theory that the case is foreign and RICO does not extend beyond the territory of the United States.[104] Because this case was decided after Morrison, the court used the Morrison framework.[105] Since RICO was silent as to its geographic reach, the court determined the focus to be on the “enterprise”; specifically, the focus of RICO was determined to be the “enterprise as the recipient of, or cover for, a pattern of criminal activity.”[106] The court did not find any congressional concern regarding the conduct of foreign enterprises, and determined that RICO only applies to regulate domestic enterprises.[107] Using this “enterprise rule” as the determinative factor in this case, the court dismissed the action because the enterprise and predicate activities alleged by the claimants were entirely foreign.[108]

Also in 2010, about one month after Cedeño, the Second Circuit decided another case under this framework, Norex Petroleum Ltd. v. Access Indus. Inc.[109] Here, the complaint alleged predicate acts in the United States: the defendants participated in a money laundering scheme to gain control of the Russian oil industry and had illegally acquired plaintiffs’ controlling share in the companies.[110] As with Cedeño, the claim was dismissed because the claimants had alleged RICO violations perpetrated by a foreign enterprise.[111] The court noted that under Morrison’s reasoning, RICO only applies domestically.[112] Even RICO’s references to interstate or foreign commerce were insufficient for the Norex court, which concluded that “simply alleging that some domestic conduct occurred cannot support a claim of domestic application. . . . The slim contacts with the United States alleged by Norex are insufficient to support extraterritorial application of the RICO statute.”[113] The Norex opinion did not reference the possibility of satisfying the focus test via the domestic injuries nor an association-in-fact; it was instead fixated on Morrison’s bright-line rule for statutory interpretation.[114] Something interesting in this case is the court’s rejection of the argument that RICO does apply extraterritorially, since its predicate offenses apply to foreign conduct abroad.[115] But the main points under the Cedeño and Norex approaches are that RICO is silent as to its geographic reach and that its focus was upon the domestic enterprise. Thus, any cases that alleged violations by foreign enterprises had to be dismissed.

Courts soon realized that the question of determining whether an enterprise is foreign or domestic can be a challenging question, as enterprises can either lack or conceal a location. But because courts have been both active and creative in matters involving extraterritorial regulation, more tests were developed to remedy this shortcoming. For instance, the Eastern District of New York in European Community. v. RJR Nabisco, Inc.[116] adopted the “nerve center test” to determine the geographical location of the enterprise.[117] This test was adapted from a 2010 Supreme Court case, Hertz Corp. v. Friend,[118] which used the “nerve center” test to determine a corporation’s “principal place of business” for jurisdictional purposes.[119] Analogizing this test to RICO analyses, courts have used the “nerve center test” to discern if an enterprise is domestic and have generally held that, as per Hertz, the principal place of business is “the place where a corporation’s officers direct, control, and coordinate the corporation’s activities.”[120]

Attorney Miranda Lievsay has asserted that the “enterprise” approach “would allow a criminal enterprise to avoid liability by relocating the enterprise’s ‘brains’ outside the United States while continuing to direct racketeering activity within the United States.”[121] She has also asserted that this approach directly undermines congressional intent and RICO’s purpose, which is to “eradicate the harmful effects of infiltration as produced by all criminal syndicates;” thus, there is not a solely domestic focus when dealing with RICO.[122] Arguments on the other side contend that the “enterprise” approach is more aligned with Morrison since “RICO does not punish predicate acts of racketeering alone, but only racketeering activity as related to an enterprise.”[123]

  2. The Predicate Offenses Approach

CGC Holding Co. v. Hutchens[124] analyzed the “predicate acts” approach. Here, Canadian defendants were alleged to have committed a fraudulent loan scheme in violation of RICO.[125] Even though RICO, as acknowledged by the court, is silent as to its geographic reach, the court nevertheless stated that a sufficient RICO claim had been alleged because the predicate acts occurred in the United States.[126] The district court articulated the “predicate acts” approach, which looks to the location of the predicate offense in determining whether it qualified as domestic.[127] The defendant’s motion to dismiss was denied because the “racketeering activity . . . was directed at and largely occurred within the United States.”[128] The court distinguished Norex and Cedeño as cases “where the actors, victims and conduct were foreign, and the connection to the United States was essentially incidental.”[129] Here, by contrast, “the conduct of the enterprise within the United States was a key to its success.”[130] Thus, the court determined that the case involved a domestic application of RICO.[131]

Similarly, Chevron Corp. v. Donziger[132] used the “predicate acts” approach.[133] Here, it was alleged that a New York lawyer and others “conceived, substantially executed, largely funded, and significantly directed a scheme to extort and defraud Chevron, a U.S. company . . . .”[134] The court decided to follow the CGC Holding Co. court’s “predicate acts” approach, even though this case would have satisfied the “enterprise” approach because the actors were within the United States.[135] It determined that congressional intent was on “protecting American victims at least against injury caused by the conduct of the affairs of enterprises through patterns of racketeering activity that occur in this country.”[136] Thus, the defendant’s motion to dismiss was denied.[137]

There are also defects with the “predicate offenses” approach. Lievsay asserts that this approach is inconsistent with both RICO’s legislative history and the Morrison opinion. For instance, the “predicate offenses” approach “ignores Congress’s explicit warning that merely addressing the unlawful activities of an enterprise will fail to effectively eradicate organized crime.”[138] However, scholars have promoted this approach as the proper focus because “RICO only prohibits certain actions toward an enterprise when these involve a pattern of racketeering activities.”[139]

3. The Pattern of Racketeering Approach

The third approach is called the “pattern of racketeering” approach and is best elaborated upon by the Ninth Circuit in United States v. Chao Fan Xu.[140] In Chao Fan Xu, four Chinese nationals allegedly participated in a scheme to steal millions of dollars from the Bank of China and then fraudulently enter the United States with false immigration documents, illegal funds, and fraudulent marriages.[141] The Ninth Circuit found that RICO’s focus was the pattern of racketeering which, in that case, was “executed and perpetuated in the United States.”[142] The court acknowledged that the location of the enterprise may sometimes be relevant, but should not relevant in cases where the “‘brains’ of the operation were located overseas but the enterprise violated United States immigration law in the United States . . . . .”[143] In other words, even though the enterprise in Chao Fan Xu was overseas, the pattern of the racketeering activity occurred in the United States.[144] The court acknowledged the difficulties in applying Morrison’s focus inquiry to the RICO context and noted that courts have taken either the “enterprise” approach or “predicate acts” approach toward RICO’s focus.[145] In articulating the “pattern of racketeering” approach, the Ninth Circuit stated that this approach more accurately measures the focus of RICO since it is the pattern of racketeering activity that is the “heart of any RICO complaint” that is alleged.[146] The court examined the legislative history and RICO’s text[147]—which explicitly mention “pattern of racketeering activity” in each of the provisions—to support this new approach.[148] Finally, because the second part of the defendants’ plan took place in the United States and was essential to their fraudulent scheme, the Ninth Circuit affirmed their convictions.[149]

Like the preceding approaches, the “pattern of racketeering” approach has been admonished because it holds that RICO does not apply extraterritorially despite the strong congressional intent to the contrary.[150] However, it has also been noted, and correctly so, that this approach yields fairer results compared to the “enterprise” or “nerve center” approach. For instance, a RICO scheme conducted in the United States by a U.S. enterprise would be subject to RICO’s force under the “enterprise” approach, but a RICO scheme conducted in the United States by a foreign enterprise would escape liability under the “enterprise” approach.[151] As the Ninth Circuit in Chao Fan Xu stated, “an inquiry into the application of RICO to Defendants’ conduct is best conducted by focusing on the pattern of Defendants’ racketeering activity as opposed to the geographic location of Defendants’ enterprise.”[152]

 4. The “Predicate Statute’s Geographic Reach” Approach

In 2014, the Second Circuit, in European Community. v. RJR Nabisco, Inc.,[153] articulated a fourth approach or method of analyzing RICO: the “predicate statute’s geographic reach” approach.[154] This approach is different than the other three because it does not encompass a “focus” analysis of the “objects of [RICO’s] solicitude,”[155] but instead simply an analysis of whether the underlying predicates apply extraterritorially—Morrison’s first prong. The claims in this case, elaborated upon more below in Part VI, entail a complex money-laundering and drug sale scheme by RJR Nabisco and related entities. The Second Circuit apparently found sufficient evidence to rebut the presumption and, at the same time, obviate Morrison’s focus analysis. The court stated that RICO does apply extraterritorially “if, and only if, liability or guilt could attach to extraterritorial conduct under the relevant RICO predicate.”[156] In other words, the court asserted, “when a RICO claim depends on violations of a predicate statute that manifests an unmistakable congressional intent to apply extraterritorially, RICO will apply to extraterritorial conduct, too, but only to the extent that the predicate would.”[157] Of course, the opposite is true as well: “Conversely, when a RICO claim depends on violations of a predicate statute that does not overcome Morrison’s presumption against extraterritoriality, RICO will not apply extraterritorially either.”[158]

This case marked the first time RICO was applied to both foreign racketeering activity and foreign enterprises causing foreign activity,[159] until the Supreme Court modified this result. It has been promoted because it allows for extraterritorial application and is more aligned with congressional intent as well as the broad scope of RICO; however, several questions remained unanswered after this approach was endorsed by the Second Circuit, such as RICO’s applicability to international organizations.[160] One last question may have been whether Congress really intended RICO’s geographic reach to be dependent on those of its underlying predicate offenses, especially since RICO was regarded as a special statute that created new offenses to combat the increasingly-emerging trend of transnational organized crime.

IV. Noteworthy Earlier Holdings

 A. Charming Betsy

            Murray v. The Schooner Charming Betsy,[161] decided in 1804, is famous for its position that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .”[162] Thus, it has been well understood that Congress does not legislate to create inconsistencies in international law, unless, of course, a contrary intent is clearly demonstrated.

 B. Bowman

In 1922, United States v. Bowman[163] held that the presumption against extraterritoriality should not apply when the court is dealing with “criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated . . . .”[164] The opinion, written by Chief Justice Taft, went on to explain that to limit the locus of these offenses to a strictly territorial approach would “greatly…curtail the scope and usefulness of the statute and leave open a large immunity for frauds . . . .”[165] Furthermore, in these cases and with such statutes, “Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.”[166]

Thus, it was debatable whether the presumption should apply to both criminal and civil RICO in the same manner.[167] Morrison seemed to partially overrule Bowman by requiring a clear indication regarding extraterritoriality or else the statute has no extraterritorial application. Interestingly, though, RJR Nabisco seems to revitalize Bowman through its distinction between criminal actions and civil suits, which grants more flexibility and discretion to criminal prosecutions, as opposed to civil RICO claims.

V. Breaking Down the Supreme Court’s Opinion in RJR Nabisco

A. Facts and Holding

In 2016, the Supreme Court decided the important case of RJR Nabisco v. European Community.[168] In this case, the procedural history of which spanned sixteen years, RJR Nabisco and related entities (hereinafter, “RJR Nabisco”) allegedly participated in a “global money-laundering scheme” with organized crime groups,[169] which had been “orchestrated from their U.S. headquarters.”[170] Specifically, the complaint by the European Community and twenty-six of its member states (hereinafter, “European Community”) described the scheme as the participation of Colombian and Russian drug traffickers who smuggled narcotics into Europe and sold drugs for euros which were, in turn, used to purchase large shipments of cigarettes.[171] The complaint also alleged that RJR Nabisco dealt directly with drug traffickers and money launderers in South America, sold cigarettes to Iraq, which violated international sanctions, and acquired a company to further their illegal acts.[172] Thus, the complaint properly alleged a pattern of racketeering carried out in interstate commerce, thereby qualifying RJR Nabisco as a RICO “enterprise.”[173] Furthermore, each of RICO’s substantive prohibitions, outlined in sections §1962(a)-(d), were alleged to have been violated by RJR Nabisco.[174] This resulted in an alleged harm to the European Community.[175]

The District Court agreed with RJR Nabisco and dismissed the complaint, asserting that RICO does not apply to activities outside the United States;[176] however, the Second Circuit reversed, concluding that “Congress has clearly manifested an intent that [predicates for RICO liability] apply extraterritorially.”[177] Specifically, the Second Circuit concluded that two of the predicates alleged in the complaint—the money laundering and material support of terrorism statutes—apply extraterritorially, while the other three—mail fraud, wire fraud, and violation of the Travel Act[178]—do not apply extraterritorially but that the complaint nevertheless alleges sufficient domestic violations of the predicates.[179]

RJR Nabisco pursued a request for rehearing, arguing that RICO’s civil cause of action requires a showing of a domestic injury, which the panel denied.[180] Rehearing en banc was also denied by the Second Circuit.[181] Because of lower court confusion regarding whether RICO does have extraterritorial application, the Supreme Court granted certiorari.[182] The issue before the Court was simply whether RICO applies extraterritorially.[183] In particular, the Court had to decide the geographic scope of two key provisions of RICO: (1) the substantive provisions, and (2) the civil damages action, referring to the private right of action. The Court held, in an opinion by Justice Alito, that the presumption against extraterritoriality had been overcome with respect to the substantive provisions found in § 1962 “provided that each of those offenses violates a predicate statute that is itself extraterritorial,”[184] but it had not been overcome for RICO’s § 1964(c) private right of action absent the private plaintiff proving “a domestic injury to its business or property.”[185] The holding on the substantive provisions was unanimous, but the holding on the civil private right of action resulted in a 4–3 split on the Supreme Court.

B. RICO’s Substantive Provisions

The Court began its discussion by acknowledging the presumption against extraterritoriality: “Absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.”[186] Its purpose is to “avoid the international discord that can result when U.S. law is applied to conduct in foreign countries” and reflects the notion that “Congress generally legislates with domestic concerns in mind.”[187] After briefly describing two significant prior Supreme Court cases dealing with extraterritoriality—Morrison and Kiobel[188]—the Court the articulated a two-step framework based on those cases:

At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction. If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s “focus.” If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.[189]

Like Morrison and Kiobel, the Court in RJR Nabisco asserted that virtually all cases should use the presumption. However, unlike those cases, the Court here found that the presumption had in fact been rebutted for the substantive prohibitions in §1962.[190] Justice Alito based this conclusion on the text of RICO, for which there are several predicates that apply to some foreign conduct.[191] Because of Congress’ incorporation of these predicate offenses into the RICO statute, the Court concluded that “RICO gives a clear, affirmative indication that §1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.”[192] Thus, this rule does not apply to all RICO predicates, only to the ones in which the RICO predicates have extraterritorial effect.[193]

Regarding the presumption once more, Justice Alito noted that only a clear indication can rebut the presumption.[194] However, a clear statement is not needed; context can be consulted.[195] And it is with this context that the Court concluded that Congress intended RICO to have extraterritorial effect; in fact, the Court noted that “[t]his unique structure makes RICO the rare statute that clearly evidences extraterritorial effect despite lacking an express statement of extraterritoriality.”[196] Thus, RICO applies to some foreign racketeering activity.[197]

RJR Nabisco contended that RICO’s focus (which was urged to be the enterprise, not the pattern of racketeering) does not apply to foreign enterprises and thus requires a domestic enterprise; therefore, according to RJR Nabisco, RICO did not reach this case.[198] In rejecting this argument, Justice Alito reasoned that the focus inquiry is relevant only at step two, which was unnecessary in this case since there was a clear indication of extraterritorialty at step one.[199] “[T]he location of the affected enterprise does not impose an independent constraint.”[200] If it did, Alito rationalized, then foreign enterprises operating in the United States would be excluded from RICO’s reach.[201] As one final matter on this holding, the Supreme Court noted that “a RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States—e.g., commerce between the United States and a foreign country,”[202] thus drawing upon Kiobel’s “touch and concern . . . with sufficient force” standard.[203] Without this “anchor to U.S. commerce, a RICO violation cannot stand.[204] Thus, the predicates alleged here, money laundering and material support of terrorism statutes, expressly provide for extraterritorial application, but the other three alleged, fraud statutes (mail fraud and wire fraud) and the Travel Act, did not contain the clear indication to rebut the presumption, but that the complaint alleged domestic violations of those statutes.[205]

C. RICO’s Private Right of Action

The Supreme Court here, in a plurality opinion, rejected the Second Circuit’s notion that the presumption did not apply to the private right of action separately from the substantive provisions and based its reliance on Kiobel’s extension of the presumption to jurisdictional statutes.[206] Because of this, Justice Alito, no longer writing for a unanimous Court, saw fit to require that the presumption be applied separately to RICO’s causes of action, and, to support this conclusion, he noted that “providing a private civil remedy for foreign conduct creates a potential for international friction beyond that presented by merely applying U.S. substantive law to that foreign conduct.”[207] The Supreme Court provided antitrust law as an example of a situation that has generated considerable controversy over the extraterritorial applications of its treble-damages provisions to conduct in other states.[208] The risks of foreign friction appeared to be too much for the Court to overlook, at least not “without clear direction from Congress.”[209] Thus, after RJR Nabisco, when there is a risk of U.S. and foreign law clashes, “the need to enforce the presumption is at its apex.”[210]

The European Community had a very compelling argument at this stage – one that entailed their consent to any resulting international friction: “the plaintiffs are not foreign citizens seeking to bypass their home countries’ less generous remedies but rather the foreign countries themselves.”[211] In rejecting this, the Court contended that it refused to adopt a case-by-case inquiry that is dependent on “consent of the affected sovereign.”[212]

Turning to the analysis of congressional intent, the Supreme Court noted that there was nothing in § 1964(c) that demonstrated a congressional intent for the private right of action to extend to injuries suffered outside the United States.[213] It was insufficient to the Court to allow the private right of action to extend abroad just because the underlying law governing the conduct extends abroad.[214] “Something more is needed, and here it is absent.”[215] Thus, the focus of the civil private right of action is the injury caused by the RICO violation.[216]

Justice Alito concluded this part of the opinion by acknowledging that this will require a civil plaintiff to prove domestic injury to business or property; alleging foreign injuries is insufficient. He also admitted that this distinction “will not always be self-evident” but that “we need not concern ourselves with that question in this case.”[217] This was because the European Community waived their damages claims for domestic injuries in the District Court, which was accepted with prejudice. Because the rest of the claims alleged damages based on foreign injury, the presumption had not been rebutted for § 1964(c) and the Court dismissed the claims.[218]

D. The Dissents

Justice Ginsburg dissented from the holding on the private right of action. She expressed her disagreement that the private right of action requires a domestic injury and does not allow for recovery for foreign injuries.[219] Instead, Justice Ginsburg would have held that RICO reaches extraterritorial injury when the claimant is a private plaintiff.[220] In fact, as she maintained, RICO’s private right of action “expressly incorporates §1962, whose extraterritoriality, the Court recognizes, is coextensive with the underlying predicate offenses charged.”[221] Most importantly, as applied to this case, Justice Ginsburg underscores why the domestic-injury requirement “makes little sense.”[222] Here, all the defendants are United States corporations with United States headquarters and are charged with racketeering activity managed from the United States involving conduct that took place in the United States. Thus, “this case has the United States written all over it.”[223]

Turning to the majority’s “international friction concerns,” Justice Ginsburg notes that it is not entirely clear that the Court’s rule would prevent “international discord.”[224] In fact, as she observes, “[m]aking such litigation available to domestic but not foreign plaintiffs is hardly solicitous of international comity or respectful of foreign interests.”[225] In addition, doctrines such as forum non conveniens and due process constraints are “controls [that] provide a check against civil RICO litigation with little or no connection to the United States.”[226] Lastly, Justice Ginsburg points out that while the majority tries to avoid creating a double standard, they have in fact created one of their own. “U.S. defendants commercially engaged here and abroad would be answerable civilly to U.S. victims of their criminal activities, but foreign parties similarly injured would have no RICO remedy.”[227]

Justice Breyer also wrote a short dissent, disagreeing with the majority’s stance on the private right of action and instead asserting, similarly to Justice Ginsburg, that §1964(c) does demonstrate the congressional intent for extraterritorial application.[228] In fact, Breyer contends, this case does not involve a case of purely foreign facts, but foreign-cubed transactions. This case has many connections to the United States and, he asserted, the majority’s conclusion that these limits would prevent the dangers of international friction is unfounded.[229]

VI. Implications

RJR Nabisco had both global and local implications.[230] The framework for deciding transnational organized crime cases now proceeds in the following matter: first, courts will determine whether Congress has indicated its intent for the statute to be applied extraterritorially. If not, then in the second step, courts will determine whether there is conduct relevant to the statute’s focus that occurred in the United States. Despite the process, the RICO statute may geographically reach both U.S. and foreign individuals abroad and hold them liable under U.S. law in U.S. courts. Thus, even though RJR Nabisco rejected the domestic enterprise requirement, it still asserted that a connection to the United States is required. This requirement is satisfied via proof that the enterprise engaged in some form of interstate or foreign commerce, regardless of the enterprise’s connection or presence in the territory of the United States. However, this does not apply to civil plaintiffs seeking to enforce RICO for non-U.S. injuries. Thus, the question of RICO’s extraterritorial reach and its attendant circumstances continues to “take… on great significance, both in the criminal and civil spheres.”[231] These implications of RJR Nabisco will be explored in this Part.

A. The Presumption Against Extraterritorially Now Applies to Virtually Any Type of Claim

In RJR Nabisco, the Court found that Congress was not concerned with only domestic conditions; since Congress affirmatively indicated that certain predicate offenses apply to foreign conduct, RICO’s substantive provisions were therefore held to also apply abroad.[232] But this was not the case with the private right of action.[233] To justify this distinction, the Court analogized from its extension, in Kiobel, of the presumption for a “judicially-crafted private right of action under the ATS,” and used this rationale to extend this reasoning to the “legislatively-crafted private right of action” in RICO.[234] The problem with this reasoning is that judicial and legislative private rights of action are not comparable. Professor Anthony Colangelo contends that concerns over excessive prosecutorial discretion were presumably taken into account via the democratic process of enacting legislation because, as is evident in RICO, Congress expressly inserted a private right of action into the statute.[235] What the Supreme Court did in RJR Nabisco was worse than creating new rights with no basis: “the Court refused to enforce legislatively created rights through an incongruous and selective application of the presumption against extraterritoriality.”[236]

It has also been pointed out that the Court’s extension of the presumption against extraterritoriality to all types of claims is in conflict with Morrison’s distinction between subject-matter jurisdiction and merits questions (legislative jurisdiction).[237] Professor Hannah Buxbaum argues that this merits-jurisdictional distinction, regarding when the presumption can and cannot be applied, does not make sense “since applying the presumption against extraterritoriality to general jurisdictional statutes would deprive federal courts of subject-matter jurisdiction Congress clearly intends them to enjoy” and likely “frustrate[s] congressional intent.”[238]

Furthermore, this case was markedly different from Kiobel. In Kiobel, the ATS created an implied private right of action, gave federal courts the jurisdiction to hear such cases, and did not provide any substantive prohibitions—whereas, in RJR Nabisco, RICO prohibits conduct and provides an express private right of action for those injured by RICO violations.[239] Thus, as Professor Gevurtz correctly asserts, “Kiobel provides limited support for the proposition that the presumption against extraterritoriality applies separately to define the reach of a statute’s substantive prohibition and to create a different additional limitation for any private remedy provision within the statute.”[240]

The Supreme Court in RJR Nabisco decided to accept the argument for extraterritoriality based on the location of the injury and rejected the location-of-the-enterprise approach. In doing so, the Court left unresolved the issue of whether it would apply the presumption against extraterritoriality separately to every element of the plaintiff’s claim—“separate application for the injury element, but not for the different elements of the substantive violation.”[241] Moreover, the Court’s extension of the presumption to the express private right of action in RICO “intensified the barriers to transnational litigation”[242] by increasing the burden that Congress must overcome in order for a statute to apply abroad, demanding that the presumption be applied to each provision of congressional statutes, and contravening the historical notion that the presumption applies only to conduct-regulating statutes.[243]

Additionally, it is unclear whether the Court really did solve the split in the lower courts addressing RICO’s focus. It is likely that this problem wasn’t even addressed since the Court’s promulgated approach now simply looks at whether the predicate offense applies to foreign conduct.[244] Professor Gevurtz thinks that the analysis here did not moot the focus question since RICO could still apply extraterritorially based on either a focus on the “pattern of racketeering” or the “enterprise.”[245] Regarding the “added injury element” for the private right of action, it is even less clear what the focus is.[246] Apparently, the Court determined that domestic injury was the focus, but the text of § 1964(c) provides recovery for injuries from RICO violations; “[s]o, is the injury the focus or is the violation the focus?”[247] These concerns remain undressed and tend to confuse scholars as well as perpetuate barriers towards multi-state cooperation.

Moreover, what does this mean for the “focus” analysis in cases where the presumption against extraterritoriality had not been rebutted at step one? A notable question that remains is whether such presumption requires some U.S. conduct that would be irrespective of the focus. Recall the two-step framework of RJR Nabisco: step one regarding the congressional indication for extraterritoriality and step two (if step one is inapplicable) to determine if the conduct relevant to the statute’s focus is domestic.[248] But does this mean that conduct in the United States needs to be alleged “even if the focus of the provision is something other than conduct?”[249] In answering in the negative to this question, Professor Dodge notes that the opinion does not mention “conduct in the United States” when analyzing the focus with respect to the private right of action.[250] Furthermore, the Supreme Court in Morrison held that the location of the conduct is irrelevant in applying the presumption against extraterritoriality and that such a rule would “thwart Congress’s purpose when the focus of a provision is something other than conduct.”[251] Thus, for those asserting civil RICO claims, it is domestic injury, not conduct, that matters.

In conclusion, the main takeaway is that RJR Nabisco mandates that the presumption against extraterritoriality “appl[y] separately to a statute’s substantive and remedial provisions.”[252] The immediate consequence of the holding is a significant reduction of the geographic reach of U.S. statutes that do not demonstrate congressional intent as to the propriety of extraterritoriality.[253] Furthermore, as Professor Carlos Vázquez notes, the opinion actually imposes an additional requirement compared to prior cases dealing with the presumption against extraterritoriality: “the outcome for statutes that do not specifically address the extraterritoriality issue . . . is that recovery is limited to cases in which both the substantive ‘focus’ of congressional concern and the injury occurred on U.S. soil.”[254]

B. The Future of the Private Right of Action Under RICO Is Significantly Curtailed

After RJR Nabisco, the private right of action was already significantly abridged. Now, even though the private right of action still exists, private claimants must prove a U.S.-related injury.[255] This effectively requires that private litigants meet higher burdens than the government must when it brings a prosecution against the defendant, even though two such cases may be based on the same conduct. As Professor Franklin Gevurtz puts it, “private claims for injuries incurred outside the United States . . . may soon be barred, even when the location of the conduct would not preclude application of the statute in a prosecution of the defendant by the U.S. government.”[256] This restriction is also unsatisfying because it emphasizes avoiding international friction, yet places no consideration on “location of the conduct, the nationality of the parties, or other factors.”[257] It also seems to slightly contradict the Supreme Court’s statement in Morrison that “[a]ssuredly context can be consulted as well,”[258] since the analyses used in RJR Nabisco regarding the private right of action ignore RICO’s text and structure and undermine the purpose of the presumption.[259]

Scholars have argued that the Court’s holding regarding the interplay between the presumption and the private right of action is in conflict with the presumption’s historic function as a “separation-of-powers and foreign relations doctrine.”[260] In fact, the opinion “reflects the Court’s use of the presumption to transform the statute that Congress enacted into one the Court would have preferred.”[261] The U.S. injury requirement is also in conflict with RICO’s policy goals.[262]

Furthermore, RJR Nabisco does not clarify the “focus” analysis for private claimants. Professor Gevurtz notes that the opinion “gives defendants in private RICO cases two bites at hiding behind the presumption against extraterritoriality—one if the pattern of racketeering activities occurs outside the United States (and does not involve predicate crimes having extraterritorial reach) and a second if the injury occurs outside the United States.”[263] Similarly, the government is affected by this holding as well. For instance, it is equally possible for a private claimant to have RJR Nabisco standing, while the government cannot. This may occur in situations where the plaintiff has a domestic injury alleged under RICO, but where the government cannot pursue a claim because the defendant acted outside the United States.[264] Gevurtz characterizes this situation as “contrary to the underlying policy of RJR Nabisco that the presumption against extraterritoriality should curb private actions more than public prosecutions.”[265]

But what about the underlying policy of RICO? When it comes to matters of extraterritorial jurisdiction, the limited remedies and jurisdictional restrictions tend to limit the number of private claimants that can recover under civil RICO lawsuits, thus “frustrat[ing] the Act’s utility in litigating against corporate multinationals.”[266] For instance, lower courts have tended to increasingly narrow civil RICO, which directly and “substantially narrows the pool of plaintiffs that can receive compensation.”[267] Justifications for this limitation appear to be based on the “injured in his business or property” language in civil RICO.[268] Scholars have pointed out that this language evinces the congressional intent that Congress intended to compensate private victims for a more narrow type of harm, such as lost profits to business owners or something else along these lines.[269] But then how does one explain the “liberally construed” mandate found in RICO?[270]

Another major concern is the applicability of RJR Nabisco’s holding to other federal statutes. It appears that, because of the holding’s emphasis on injury, other federal statutes providing for just a private cause of action will only be extended to injuries felt in the United States unless there is a clear congressional intention for that statute to apply extraterritorially.[271] Thus, a federal statute—no matter how broadly drafted—that is silent as to its geographic reach will not allow for recovery for injuries felt outside the United States for private claimants.[272]

C. International Relations and Foreign Resentment Issues Have Not Abated

The Supreme Court in RJR Nabisco supported its holding because of concerns over the “potential for international friction.”[273] But, as Professor Anthony Colangelo points out, the facts in this case raised no issues of foreign resentment because the plaintiffs did not “resent . . . the application of U.S. law” but instead “explicitly and repeatedly requested it.”[274] In fact, it was the Court’s refusal to provide these foreign states—the plaintiffs—the same access to U.S. courts that is more likely to create “unequal treatment and itself risks foreign resentment and international friction.”[275]

This leaves one wondering why the European Community[276] sought access to U.S. courts in the first place and why it decided not to rely on any local or European law. After all, “the case also has the European Union written all over it;” furthermore, the majority of criminal activities that formed the bases for the RICO violations took place in Europe.[277] One reason could be the “promise of treble damages,” which was both a lucrative and punitive legal strategy.[278] Another reason could be the fact that RJR Nabisco was a U.S. company operating in the United States.[279] Still, an important reason could be that the European Union “offers no direct equivalent to the type of private enforcement possible under RICO.”[280] Thus, the European Community initiated the proceeding in U.S. courts and knew exactly what they were getting, which was the same as what they wanted: the application of U.S. law.

How far can this consent argument be taken and who can consent? If anyone can consent and effectively waive any possible foreign friction that may result, should this be sufficient for the judiciary to extend that provision extraterritorially? What if there is consent in one case, but not in a similar, future case? Or what if the initial consent was withdrawn? Scholars have focused on this consent argument because it was the foreign sovereigns themselves that were consenting; thus, the judiciary appeared to have no just reason to deny it and have been critically admonished for doing so.[281] Perhaps this is a strong argument since no higher entity can give consent than the respective foreign governments of individual states.

But had the Court adopted this consent argument, then the law would have been even more dependent on the specific facts in every case. More distinctions are not needed. For instance, such a consent-based approach could have resulted in situations where identical cases are decided as diametrical opposites in their holdings—one where U.S. law is extended abroad and the other where the presumption had not been rebutted. The difference between these two cases? Consent. This argument does not seem so compelling on the facts of RJR Nabisco since it was the foreign states consenting; but would it be possible, under a consent theory, for private organizations or private claimants to waive foreign resentment consequences? Even if they consent, the foreign government may not be so willing, especially if the defendant is a foreign-incorporated enterprise that happened to cause domestic injury to these claimants.

But this, too, creates too many distinctions based first on the claimant (foreign government vs. private party), then on consent, and then on the facts of the case. Such multi-layer steps and categorical distinctions will soon become too awkward. Viewed in this manner, the Court’s rejection of the consent-based approach is both sound and logical.

But why, then, did the Supreme Court not stop at their rejection of the consent-based approach but instead also differentiate between government actions and those brought by private parties? A prominent theory involves the sensitivity of foreign policy issues when in the hands of people not accountable to foreign governments.[282] Scholars have contended that this distinction has to do with the responsibility that U.S. prosecutors are given and the considerations they must weigh when initiating proceedings, which is something not demonstrated by private claimants.[283] This means that “private litigants . . . can undertake suits that may benefit themselves personally but produce public harm.”[284] Private claimants, such as attorneys handling class action suits, would normally be more concerned about getting paid and tend to lack the accountability to the public for the foreign complications resulting from their actions.[285] It seems to be likely that the Court in RJR Nabisco based its reasoning on these considerations. Thus, the judiciary tends to assert that it prefers foreign policy matters to be dealt with “by political actors who must face political accountability for their choices, not by litigants and judges who have no such responsibility.”[286]

However, is it really true that prosecutors are more likely to consider accountability issues and foreign policy than private attorneys? It could equally be possible that prosecutors are influenced by their workload, resources, success rates, etc. to the same extent as private attorneys representing private claimants or class actions suits. There is no guarantee that this is the case, nor is it a fair conclusion.

Other scholars, as well, have opposed this stance because the issue in RJR Nabisco was not foreign infringement. It has been contended that there is little evidence that comity was undermined by RICO analyses prior to Morrison.[287] Furthermore, “comity does not require that the United States tolerate or protect racketeering conduct that emanates from or has significant effects within its borders . . . .”[288] Then when is international comity affected? This is the key question but one that the Supreme Court did not address, leaving to the lower courts or to another Supreme Court decision the task of identifying when a private claim alleging foreign conduct will cause friction with foreign states.[289]

Nevertheless, the Court in RJR Nabisco asserted that even though conflict with foreign law is not a prerequisite for utilizing the presumption against extraterritoriality, “where such a risk is evident, the need to enforce the presumption is at its apex.”[290] Thus, the presumption has been supported as a valuable tool to help minimize foreign infringements and to prevent extraterritorial applications of U.S. law when there is insufficient congressional indication for that provision to extend abroad. These concerns are valid, and this validly perhaps justified the Court’s expanded application of the presumption against extraterritoriality not only to conduct-regulating provisions, but also to jurisdictional statutes and private causes of action.[291]

But if this is true, then it must also be true that where the presumption is rebutted, the result is a permissible form of extraterritoriality. However, recent Supreme Court cases, such as Morrison, Kiobel, and RJR Nabisco, have not dealt with the issue of whether permissible extensions of U.S. jurisdiction cause international friction.[292] Thus, the presumption definitely talks the talk about preventing excessive unilateral extensions of U.S. law, but it is not certain or guaranteed in any way that the presumption walks the walk at achieving this. The holdings of Morrison, Kiobel, and RJR Nabisco do not appear to represent sufficient or satisfactory safeguards.[293] This is due perhaps to the ineffective system in place for deterring the propriety of extraterritorial regulation or futility in the current use of the presumption as a deterrence. Only future cases that involve permissible extensions will reveal this answer,[294] since it has been either unaddressed or inapplicable.[295]

Notwithstanding whether the debates either supporting or denouncing RJR Nabisco’s reliance on avoiding international friction are correct, it remains to be seen whether this opinion was a good decision for the United States domestically. To determine this answer, it must be remembered that the people of the United States reside in an ever-expanding global community where technology can simultaneously connect people from around the world in a single click. That same technology can also supply the opportunity for massive transnational organized crime schemes that can involve conduct as well as effects in multiple states. Thus, does this emphasis on territorialism work well in 2020?[296] It has been asserted that RJR Nabisco promotes “litigation isolationism” in that it prevents the regulation of transnational enterprises by the United States, forces foreign nations to attempt to regulate these schemes, and causes problems—including the lack of protection from U.S. law—for U.S. nationals abroad.[297] Not only does this affect international comity,[298] but it also interferes with Congress’s ability to extend protections to its nationals in certain cases concerning transnational organized crime abroad.[299] Furthermore, an internal struggle is created between the judiciary and the political branches since RJR Nabisco’s holding “not only empowers, but arguably requires lower courts to push away transnational litigation involving conduct that Congress intended to regulate through a host of statutes.”[300]

D. Illustrating the Inconsistencies

As the law currently stands, there is a differentiation between cases brought by the government and those brought by private claimants: private claimants must prove a domestic injury before they can bring a civil RICO claim. As for the government, RICO will apply abroad only to the extent that the underlying substantive predicates do. If a prohibition extends extraterritorially, so too will the claim under RICO; however, it is less clear what happens when a substantive prohibition does not apply abroad. Under Morrison, it appears that the domestic focus inquiry would need to be utilized. But as applied to such suits brought by the government, what is the focus? Is it conduct in the United States or is it a domestic injury (effects) requirement, similar to that required for private civil claimants? This answer is unclear in RJR Nabisco. Perhaps this was because RJR Nabisco was a civil suit; nevertheless, the negative consequences from this unanswered question are far-reaching.

Because of this, it is possible for one situation to yield a claim for the government but not civil claimants and vice versa. This is true even if the claims of both the government and private claimants are linked to the same illegal conduct of the same defendant(s). The table below displays these situations with oversimplified examples.

*Note that the citizenship of the claimant is irrelevant

**It is unclear whether conduct/injury in the United States will allow for extraterritorial application when the underlying predicate offense does not apply extraterritorially. If conduct in the United States is a sufficient focus, the government’s prosecution under “(d)” can proceed, but if injury in the United States is a sufficient focus, the government’s prosecution under “(a)” can proceed.

Before analyzing the results of the table above, note that the location of the enterprise is irrelevant under the RJR Nabisco analysis for U.S. prosecutions: “[T]he location of the affected enterprise does not impose an independent constraint.”^[305] For government prosecutions, all that is needed to extend RICO abroad would be for the underlying predicate to apply extraterritorially or for the court to conclude that the claim satisfies the domestic focus of RICO. Additionally, even if the claim satisfies this provision, the “RICO enterprise must engage in, or affect in some significant way, commerce directly involving the United States.”^[306] For private civil RICO actions involving the propriety of extraterritorial applications, there is similarly no enterprise requirement. RJR Nabisco concluded that “rrespective of any extraterritorial application of §1962, we conclude that §1964(c) does not overcome the presumption against extraterritoriality. A private RICO plaintiff therefore must allege and prove a domestic injury to its business or property.”^[307]

As shown in the table, whether the substantive provision applies extraterritorially is usually the determining factor for U.S. prosecutions, but under private civil actions, it is the domestic injury that is required to rebut the presumption against extraterritoriality. This creates a problem in that the same conduct can be actionable where—or if—the U.S. government brings a prosecution against a defendant, [308] but not actionable if a private claimant wants to bring the claim.[309] The opposite is also true.[310] For instance, in Situation 1 in the table above, the government will likely not have standing where the underlying predicate does not extend extraterritorially (and has failed the focus analysis), but, if domestic injury is shown by a private civil claimant, then the presumption would be rebutted as to their claim.[311] Similarly, in Situation 2, the government is able to bring a RICO prosecution where the substantive predicate applies extraterritorially—thus rebutting the presumption—but the private civil claimant is precluded if there is no domestic injury alleged.[312] Thus, regardless of the conduct, nationality, or respective proceeding brought by the U.S. government, the private claimant’s suit will be dismissed if it is based entirely on foreign injury. This produces an awkward distinction. The private claimants with foreign injuries can hope that the prosecutor will take on their case and prosecute the defendant, but this is unlikely. Additionally, sometimes it is possible for civil claimants to bring a case but not the government in cases where the defendant clearly falls within the types of cases originally intended by Congress. But these distinctions and layers of analyses are what characterize the process of determining the propriety of extraterritorial extensions of RICO.

Note that the Noriega court’s result is not overruled. Even though the case involved violations of statutes (such as predicate offenses under RICO which did not apply extraterritorially),[313] the case alleged effects within the United States to rebut the presumption under the Morrison’s focus analysis. Even if the statute at issue does not apply extraterritorially as per Morison, if the complaint “alleges domestic violations of those statutes,” the focus test is met.[314] In other words, “foreign enterprises will qualify only if they engage in, or significantly affect, commerce directly involving the United States.”[315] Thus, Noriega’s result still stands, but its reasoning that in applying RICO liberally, “the Court cannot suppose that RICO does not reach such harmful conduct simply because it is extraterritorial in nature” appears to be overruled since it is contrary to Morrison’s clear indication of extraterritorial application in the statute.[316]

VII. The Harsh Reality: Politics, RICO Prosecutions, and Private Criminal Activity in 2020

A. Present-Day Status of RICO

Amending RICO, either to more accurately reflect congressional intent as to its extraterritorial reach or to better prioritize its intended scope of encompassed crimes, are both options that may resolve a majority of academic debates. However, a more difficult question concerns whether this is likely to happen. In other words, though desirable, is it even feasible at this moment to do this? Part VIII aims at illuminating this question.

A useful starting point is to examine how the United States has responded to this problem in the past. For instance, the steps articulated in the Senate Report of 1969 on the Organized Crime Control Act articulated both federal measures[317] and state and local measures[318] that were taken to combat organized crime. Critically, however, the Report concluded that “[f]ederal activity must be dramatically increased if we expect progress. More men and money, new administrative actions, and new legal authority are needed.”[319] This aggressive attitude needs to be adopted today, especially in light of the recent cut backs in extending RICO to foreign elements.

Prosecutors are given a great deal of discretion in the U.S. legal system. The power to bring charges carries with it the authority to make tough policy decisions, especially since so many laws are written broadly.[320]

As a starting point, Professor Blakey observes that crime cannot be analogized to conscious choice, but instead is more appropriately analogized to “poverty, passion, discrimination, or mental disease,” making “[r]eform of these social or economic conditions, or of the offender, [the] prime goals,” as opposed to “ssues of legal theory or governmental

Alternatively, people today are reluctant to come to one another’s aid or to report criminal activity.[324] But this gets us back to the question of what crime is in this context. When people refer to modern organized crime, they are referring to more than just cartels, but also to “para-governments within our society” such as narcotics traffickers, loan sharks, or illegal gambling operators.[325] Furthermore, this type of crime affects people’s very lives since criminals can sometimes develop illicit agreements with the “police, the prosecutors, the courts, and the legislators,” making organized crime “the most sinister kind of crime in America.”[326] But the police, prosecutors, and the courts are the ones the U.S. people depend on to bring justice.

In reality, sadly, resources are scarce and local law enforcement personnel are poorly paid, undertrained, and “[a]ll too often, politics, if not corruption, taints their work.”[327] Society needs the help of local and state agencies to assist in the problem of organized crime.

What about the courts? Are they the forum where “the forces of good and evil” battle to the finish line and where “rights are vindicated and justice done”?[328] The answer to this question is unfortunately no. The solution will likely not be found by looking to the judiciary, but instead through political branch action and “[b]etter police training, higher pay, and attitudes of fair-minded professionalism.”[329]

B. As Applied to This Analysis

The focus of this Article has been to examine these local realities and their effects on an international scale. So what happens when international organized crime is added to the picture?[330] Professor Blakey asserts that “one size will not fit all” and that the roles of the courts, legislatures in enacting rules, or law professors are secondary to the more critical role of the legislatures in “providing necessary resources and executives in exercising wise administrative and prosecutorial discretion.”[331] And how is this undernourishment fixed?[332] By focusing on the administration of the U.S. criminal justice system in prosecuting crimes.[333] This is true even if the case at hand involves foreign elements, the adjudication of which would involve issues of extraterritorial application.

Why, then, have courts slowly narrowed the reach of U.S. statutes? What are they afraid of? Take RJR Nabisco as an example. The foreign resentment arguments are unpersuasive because the foreign governments requested the imposition of U.S. law. Neither do the domestic concern assertions carry any weight since no consideration is given to a claimant’s nationality. The only reasoning that has support in the case appears to be the desire to place the responsibility for dealing with partly foreign cases in the hands of the government/prosecutors and take it away from private claimants.

But there is an inherent contradiction in this argument. By taking away, or substantially narrowing, the ability of private civil RICO claimants to bring cases, they are lodging more power with the government/prosecutors. Prosecutors already have too much discretion in bringing the cases they want against whom they want. Additionally, the attendant circumstances of prosecutors are characterized by limited resources. In other words, there is an inability to prosecute all the crimes that are occurring in the United States, regardless of whether the issue deals with only a domestic case or a transnational case of organized crime. RJR Nabisco’s limitation of the private right of action further exacerbates this problem.

Thus, it appears that these recent limits—from Morrison to Kiobel and now to RJR Nabisco—make less sense. Add technology and globalization to the manipulation potential and evasion abilities of criminals with regards to new forms of crimes and society is left with a counterintuitive state of affairs of illusory borders but limited U.S. regulatory power. But what was going on in this era? Morrison was decided in 2010, only a couple of years after the 2008 Recession. Was Morrison, as the first major Supreme Court decision cutting back on the elasticity of extraterritorial regulation, a reaction to the U.S. market crash of 2008?[334] Maybe the United States couldn’t afford— literally—to get involved in the regulation of foreign affairs via the extraterritorial regulation of foreign nations/states. Or perhaps the United States, via the Supreme Court, was afraid to accept the consequences—foreign resentment, comity concerns, or infringements of international sovereignty—in doing so. Plausibly, and more simply, it could be the result of a majority conservative bench. No matter the reason for the Court’s curbed approach to extraterritorial regulation, it has still refused to adopt broad interpretations of statutes, even if that meant delivering decisions that turned U.S. nationals away from U.S. courts or made it significantly harder for them to state a claim.

VIII. Recommendations

Courts should not be the institution to set forth different interpretations for different provisions in a statute regarding its geographic. “[C]ourts lack sufficient observations to know whether Congress normally intends courts to separately evaluate the extraterritoriality of different sections of a statute or elements of a claim.”[335] Nevertheless, this characterized the Court’s reasoning in RJR Nabisco. Perhaps they thought they had sufficient observation to know what Congress thought on the matter. Does the fact that there has been no congressional amendment subsequent to the decision make the decision align with congressional intent? After all, when Congress disagrees with a Supreme Court decision, it has on prior occasions amended the relevant provision to either reverse the Supreme Court holding on that matter or change it.[336] Apparently Congress has not and will likely not react to the opinion, making the critical question, instead: what can be done at this stage? This Part intends to elaborate upon the various arguments and possible recommendations.

A. Recommendations Suggested by Other Scholars

While applying RICO, a U.S. statute, to foreign states constitutes a violation of sovereignty, the United States must protect its territory from foreign threats.[337] Also, as applied to other statutes, if the focus of the provision occurs in the United States—“be it conduct, or injury, or a transaction”—this should be sufficient to create the domestic application needed under the RJR Nabisco analysis, as some scholars have asserted.[338] On the other hand, there is the very logical argument that these “fragile policy questions in the realm of international relations are best left to Congress’s unique capabilities and vantage point,”[339] and thus are improper matters for the judiciary to be considering. RICO is, after all, a statute that encompasses the “international nature of some organized crime” and thus the “inherently international aspect” of the predicate acts.[340]

The United States must also consider international concerns such as multi-lateral cooperation. Because the presumption is “merely a judicial invention,” some scholars have suggested that it should be inapplicable in situations where its use would enhance foreign relations interference and that the United States needs to take account of the identity and status of the claimant. [341] This is important because multi-lateral cooperation needs the consent of all parties involved. Other scholars, however, have asserted that RICO’s private right of action must be limited to domestic injuries “to avoid overextending the already expansively applied statute”[342] that could otherwise result if too many foreign factors are present in U.S. courts. Here, it has been contended that a RICO claim is domestic if it alleges “either a domestic enterprise or a domestic pattern of racketeering activity.”[343]

It appears that the majority of scholars are against the Court’s distinction between applying the presumption to RICO’s substantive prohibitions and then applying it separately to RICO’s private right of action.[344] Such dissatisfaction likely stems from the current inability to reconcile the Court’s interpretation of RICO’s provisions to RICO’s intended purpose to combat organized crime, which now includes transnational organized crime.[345] Further, Congress could not have been any clearer regarding RICO’s extraterritorial scope than its use of “interstate or foreign commerce” directly in the text[346]

The question thus becomes how to proceed to rectify these political hindrances in order to better approach the international considerations that accompany regarding extraterritorial regulation It has been suggested that Congress intervene to take away the excess discretion that the courts have acquired[347] and subsequently that courts have used to first broaden the scope of RICO and then limit its geographic reach. Congress must provide a clearer definition of “enterprise” and, in doing so, remain aware of the rationale behind RICO’s enactment, including Congress’s fear “that organized crime would destabilize the American economy and possibly even undermine the justice system through the use of bribery and intimidation.”[348] As the law stands right now, the court’s broad interpretation of “enterprise” includes defendants who are associated with “non-organized-crime-type criminal organizations,” while simultaneously “taking away the government’s ability to prosecute dangerous groups that actively engage in racketeering activity, but do not have this mafia-style structure.”[349] This is contrary to the original intent of RICO and produces unfair results where courts set forth inconsistent holdings, prosecutors are free to run the show as they please, and organized crime perpetrators manipulate the law to avoid RICO’s reach; thus, a statutory amendment to clarify the interpretation of RICO’s original intent has been the suggested solution.[350]

But a statutory amendment is not the answer because Congress is not likely to amend it. Professor Blakey suggests that the answer lies not in statutory amendments but in a more efficient administration and selection of our justice system.[351]

B. Realizations/Recommendations of This Analysis

Congressional intent must be followed; if not, courts begin to engage in “rogue policymaking” and “expand the scope of a statute.”[352] This is a slow process but gradually implicates both the domestic and international levels. For instance, “[t]he drafting of RICO began, but did not end, with an effort to sanction organized crime’s traditional activities.”[353] Now, the scope of RICO’s coverage has been substantially broadened but its geographic reach has been significantly curtailed.

It is perfectly permissible for Congress to be concerned with transnational organized crime only as it applies to domestic conditions. The Supreme Court in RJR Nabisco was correct in limiting the scope of the private of action to avoid unnecessary foreign resentment concerns, but they went too far when they similarly limited it as against U.S. nationals. Keeping this in mind, the solution should entail an approach that keeps domestic concerns primarily in mind. Thus, the private right of action for foreign claimants should require that a domestic injury be shown; however, civil RICO claims for U.S. nationals should not be similarly restricted. Therefore, the U.S. nexus for the foreign nationals would be the domestic injury requirement, while the U.S. nexus for the U.S. nationals would be their citizenship. RJR Nabisco should be interpreted in this respect, as it is consistent with the notion that Congress legislates primarily with domestic conditions in mind and is consistent with the goal of reducing foreign interference.

The effects of this approach are that it ensures that the United States is adjudicating cases with a connection to its territory as opposed to deciding he cases of other nationals either for or against foreign states. If it’s a U.S. nexus requirement that the Supreme Court is seeking, this is the answer. It is also a compromise in that it limits excessive foreign transactions in U.S. courts while also alleviating prosecutorial burden. It limits excessive foreign transactions by ensuring that the United States is somehow connected to the transaction, either via their U.S. nationals or an injury occurring within the territory of the United States. Also, should the private right of action no longer require that domestic injury be shown by U.S. nationals, the discretion associated with prosecutorial decision-making is lightened.

This approach respects international comity and reduces foreign infringement since fewer foreign-cubed transactions will be adjudicated in U.S. courts; in fact, it appears they may only be brought if the government initiates the prosecution, not private civil claimants. Lastly, there will be no distinctions based on who consents nor unfair results from the overly restrictive approach that currently faces U.S. nationals asserting a civil RICO violation. Law enforcement agencies at all levels—local, state, and federal—need to be educated on the proper interpretation of RJR Nabisco. Regarding the private cause of action, the injury requirement should be implied from a U.S. national’s citizenship because their citizenship provides the sufficient U.S. nexus in lieu of asserting an injury within the United States; however, a foreign national should demonstrate the U.S. injury to assert that connection to the United States. This helps form that connection to the United States, reduce some of the burden for prosecutors in initiating these claims, and provides a fairer application amongst claimants injured by transnational organized crime.

IX. Conclusion

This study has presented an in-depth analysis of the history of RICO including original congressional intent, the circumstances prompting RICO’s enactment, and how RICO was enforced in the judicial system. It also examined some basic concepts of criminal procedure, prosecutorial discretion, and the capabilities of domestic law enforcement agencies – local, state, and federal. Then, extraterritoriality was added to the analysis. The purpose of this study was to understand how to best deal with the concept of extraterritorial applications of RICO by looking to how matters can be improved on the domestic level. Early caselaw has tended to be territorial. However, this trend slowly lost force when technology and globalization was on the rise. Despite the legislative history to the contrary and nature of organized crime, courts have generally held that RICO was silent as to its geographic reach.

Thus, the judiciary has slowly adopted the practice of extraterritorial regulation when cases presented some combination of either foreign parties or foreign defendants but have been inconsistent in doing so. Pre-Morrison cases tended to rely on some form of the conduct or effects tests when determining whether RICO should extend abroad. After Morrison, courts have struggled with how to determine what the focus of RICO encompassed. Because of this, the lower courts in post-Morrison cases have articulated about four different focuses of RICO. Depending on what claim a court was brought, the focus of RICO was construed differently, and thus similar cases were decided differently.

In extending RICO abroad, the judiciary has been responsible for two developments that have distorted RICO’s purpose and strength: (1) the judiciary has broadened the scope of the statute’s encompassed acts; and (2) the judiciary has limited the geographic reach of the statute’s enforcement. Despite the rationales of adhering to congressional intent and reducing foreign infringement, this is not reflected in modern jurisprudence. These two movements have been urged as contrary to the original intent of the drafters since the text of RICO explicitly mentions “foreign commerce” and organized crime has traditionally and continues to be regarded as involving the types of acts that transcend multiple borders.

The Supreme Court’s decision in RJR Nabisco was significant for several reasons. The holding extended the presumption against extraterritoriality to express legislative private causes of action, curtailed the private of action for civil RICO claimants due to the added domestic injury requirement, and increased foreign tensions from the inconsistent application of U.S. laws abroad. Now, it is quite possible for many credible cases of organized crime to slip through the cracks based on the senseless formalities of RICO’s new interpretations.

While the Court was correct to limit the private of action to foreign nationals, it should not have done so with respect to U.S. nationals. As applied to foreigners, the domestic injury requirement for civil RICO ensures that the United States is adjudicating cases with some connection to the territory of the United States. However, as applied to U.S. nationals, this interpretation need not extend so far. Therefore, U.S. nationals should have an implied U.S. nexus found through their citizenship to the United States. This is how RJR Nabisco needs to be interpreted.

When developing a solution or recommendation, it is important when proceeding with extraterritorial decisions to realize that it is permissible for Congress to legislate on an international issue but be concerned with its effects on a domestic level. It is also important to adequately describe a U.S. nexus requirement for both foreign nationals and U.S. nationals when dealing with civil RICO. As mentioned, foreign nationals should demonstrate the domestic injury, but U.S. nationals are already impliedly connected to the United States via their citizenship. How can these realizations be reached? Local, state, and federal law enforcement efforts need to be strengthened and revitalized. These are the domestic forces that are most important in the U.S. system, which, in turn, affect the international system.

Adequate training as to the proper scope and geographic reach of RICO will help systemize prosecutions and private rights of actions. It is highly unlikely that Congress will set out to amend RICO, nor is there hope in obtaining clarification of the statute’s scope and geographic reach from another Supreme Court decision. Furthermore, by eliminating the extra obstacle (the domestic injury requirement) for private U.S. civil RICO claimants, some of the excess burdens and discretion are taken away from prosecutors, who tend to already be plagued by limited resources. This innovative interpretation for civil RICO—the implied U.S. nexus in citizenship for U.S. nationals—is a compromise, one that alleviates prosecutorial overload, grants standing to U.S. nationals from a U.S. statute, and provides more consistency in RICO’s operation both domestically and internationally. For there to be international harmony, there must first be harmony at the domestic level. This includes proper training, allocated workloads, dependable and predictable standards, and swift action. Finally, such compromise will better adhere to the original congressional intent without overuse or misuse of RICO’s provisions to encompass more of the unintended acts or not enough of the intended acts. With these realizations in mind, the United States can proceed to combat cross-border organized crime as it currently stands today in 2020.

* Alina Veneziano, Ph.D. Candidate, King’s College London, UK; LL.M., New York University School of Law, 2019; J.D., Georgetown University Law Center, 2018; M.B.A., Western Governors University; B.S., Accounting, Western Governors University. Alina Veneziano is a registered attorney of the Bar of the State of New York. She thanks Professors Ronald Goldstock and G. Robert Blakey for their feedback and advice in developing this paper and is grateful to the Harvard Journal on Legislation team for their incredible edits throughout the publication process. She also thanks her family for their endless support.

[1] RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2102 (2016).

[2] See 18 U.S.C. §§ 1961–1968 (2018).

[3] 561 U.S. 247 (2010).

[4] 136 S. Ct. 2090, 2090 (2016).

[5] Edwin H. Sutherland, White-Collar Criminality, 5 Am. Soc. Rev. 1 (1940).

[6] See id. at 1 (“This paper is . . . a comparison of crime in the upper or white-collar class, composed of respectable or at least respected business and professional men, and crime in the lower class, composed of persons of low socioeconomic status.”).

[7] Id.

[8] See Donald R. Cressey, Theft of the Nation: The Structure and Operations of Organized Crime in America 1 (1969).

[9] Id. (“And the real trouble has begun in the United States.”).

[10] Id. at 1–2 (“It is one thing to make a few dollars selling illegal lottery tickets, but it is another thing to achieve a monopoly on illegal gambling services by means of a simple weapon, a gun. It is one thing to bribe a policeman to overlook gambling, but it is another thing to dictate the actions of a state legislator or federal congressman or senator. It is one thing to amass a fortune by importing narcotics, but it is another thing to use this fortune to buy immunity from prosecution for murder.”).

[11] Id. at 3.

[12] S. Rep. No. 91-617, at 35 (1969).

[13] Id.

[14] Id. at 44.

[15] See Pub. L. No. 91-452, 84 Stat. 922 (with the stated purpose “[r]elating to the control of organized crime in the United States”).

[16] See G. Robert Blakey, RICO: The Genesis of an Idea. Trends in Organized Crime, 9 Trends In Organized Crime 8, 13 (2006).

[17] Id.

[18] Id.

[19] See United States v. Forsythe, 429 F. Supp. 715, 720 (W.D. Pa. 1977).

[20] See United States v. Elliott, 571 F.2d 880, 884 (5th Cir. 1978).

[21] See Miranda Lievsay, Containing the Uncontainable: Drawing RICO’s Border with the Presumption Against Extraterritoriality, 84 Fordham L. Rev. 1735, 1737 (2016); see also Gideon Mark, RICO’s Extraterritoriality, 50 Am. Bus. L.J. 543, 604 (2013).

[22] See, e.g., United States v. Gotti, 413 F. Supp. 2d 287 (S.D.N.Y. 2005).

[23] E.g., United States v. Tello, 687 F.3d 785 (7th Cir. 2012).

[24] See, e.g., United States v. Turkette, 452 U.S. 576 (1981).

[25] See Papai v. Cremosnik, 635 F. Supp. 1402, 1411, (N.D. Ill. 1986); see also Bennett v. Berg, 685 F.2d 1053, 1063 (8th Cir. 1982).

[26] See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 252–53, 259, 262 (1994).

[27] See Emily A. Donaher, From the Sophisticated Undertakings of the Genovese Crime Family to the Everyday Criminal: The Loss of Congressional Intent in Modern Criminal RICO Application, 28 St. Thomas L. Rev. 197, 211 (2016) (“When Congress drafted the RICO statute, it intended to target the Mafia . . . . Courts today, however, read the statute broadly . . . .”); see also G. Robert Blakey & Brian Gettings, Racketeer Influenced and Corrupt Organizations (RICO): Basic Concepts—Criminal and Civil Remedies, 53 Temp. L.Q. 1009, 1011 (1980) (“Largely ignored at first, today RICO is widely employed by federal prosecutors, not just by organized crime strike force attorneys, but by prosecutors in United States Attorney’s offices . . . .”).

[28] 473 U.S 479 (1985).

[29] See id. at 499 (quoting Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 487 (2d Cir. 1984)).

[30] Id. at 499–500 (emphasis added) (As demonstrated in Part V, RJR Nabisco completely disregards this passage regarding the Court’s refusal to change or eliminate the private right of action.).

[31] United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir. 1983).

[32] See G. Robert Blakey & Michael Gerardi, Eliminating Overlap, or Creating a Gap? Judicial Interpretation of the Private Securities Litigation Reform Act of 1995 and RICO, 28 Notre Dame J.L. Ethics & Pub. Pol’y 435, 443 (2014).

[33] See id.

[34] Donaher, supra note 27, at 220.

[35] See Lievsay, supra note 21, at 1737.

[36] See Victoria L. Safran, RICO’s Extraterritorial Reach: The Impact of European Community v. RJR Nabisco, 4 Stan. J. Complex Litig. 47, 48 (2016).

[37] See Lievsay, supra note 21, at 1737.

[38] Id.

[39] Id.

[40] See Charles Doyle, Extraterritorial Application of American Criminal Law 1 (2016), http://www.fas.org/sgp/crs/misc/94-166.pdf [https://perma.cc/2K6Q-JBWU].

[41] See id.

[42] G. Robert Blakey, Foreword: Debunking RICO’s Myriad Myths, 64 St. John’s L. Rev. 701, 705 (1990).

[43] Id. at 707 (“The criminal enforcement mechanism of RICO provides for imprisonment, fines, and criminal forfeiture.”).

[44] See G. Robert Blakey, Time-Bars: Rico-Criminal and Civil Federal and State, 88 Notre Dame L. Rev. 1581, 1604 (2013) (“The government and private parties may bring civil suits”); see also Blakey, supra note 42, at 707 (“The civil enforcement mechanism of RICO provides for injunctions, treble damages, and counsel fees.”).

[45] See 18 U.S.C. § 1962(a)–(d) (2018).

[46] See 18 U.S.C. § 1962(a).

[47] See G. Robert Blakey & Ronald Goldstock, “On the Waterfront”: RICO and Labor Racketeering, 17 Am. Crim. L. Rev. 341, 357 (1980).

[48] See 18 U.S.C. § 1962(b).

[49] Blakey & Goldstock, supra note 47, at 358.

[50] See 18 U.S.C. § 1962(c).

[51] See Blakey & Goldstock, supra note 47, at 359.

[52] See 18 U.S.C. § 1962(d).

[53] Blakey & Goldstock, supra note 47, at 360.

[54] Pub. L. No. 91-452, 84 Stat. 922, 947 (1970).

[55] See 18 U.S.C. § 1961(4).

[56] Blakey & Gettings, supra note 27, at 1024–25.

[57] See Instituto Nacional de Comercializacion Agricola (Indeca) v. Continental Illinois Nat’l Bank & Trust Co., 576 F. Supp. 991, 999 (N.D. Ill. 1983).

[58] Blakey & Gettings, supra note 27, at 1025; see also S. Rep. No. 91-617, at 158 (1969) (describing the possibility that legitimate groups can engage in criminal acts under RICO).

[59] 452 U.S. 576 (1981).

[60] Id. at 582–83.

[61] 18 U.S.C. § 1961(5).

[62] See Uniroyal Goodrich Tire Co. v. Mutual Trading Corp., 749 F. Supp. 869, 874 (N.D. Ill. 1990) (noting that the pattern requirement is not vague where the allegations would satisfy the pattern requirement and represent the type of scenario envisioned by Congress to be within RICO’s coverage).

[63] Sedima v. Imrex Co., 473 U.S. 479, 496 n.14 (1985).

[64] Id. (“The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern.”).

[65] See Blakey & Goldstock, supra note 47, at 348.

[66] Secon Serv. Sys. v. St. Joseph Bank & Trust Co., 855 F.2d 406, 420 (7th Cir. 1988) (citing Skycom Corp. v. Telstar Corp., 813 F.2d 810, 818 (7th Cir. 1987) (“[A] single, isolated transaction does not satisfy the RICO requirement of a ‘pattern’ of racketeering activity.”)).

[67] See Graham v. Slaughter, 624 F. Supp. 222, 225 (N.D. Ill. 1985); see also United States v. Elliott, 571 F.2d 880, 899 n.23 (5th Cir. 1978) (“Thus, the Act does require a type of relatedness: the two or more predicate crimes must be related to the affairs of the enterprise but need not otherwise be related to each other.”).

[68] See 18 U.S.C. § 1961(1).

[69] See 18 U.S.C. § 1962(a)–(d).

[70] See Lievsay, supra note 21, at 1743; see also Blakey & Goldstock, supra note 47, at 348 (“Conviction under RICO requires that the prosecution must prove, not only that the defendant committed an offense, but also that he did so as a member of a group engaged in a pattern of racketeering activity.”).

[71] See 18 U.S.C. §1964(c).

[72] See Daniel Hoppe, Racketeering After Morrison: Extraterritorial Application of Civil RICO, 107 NW. U. L. Rev. 1375, 1382 (2013).

[73] Id.

[74] Id. (“The broad range of civil remedies thus allows a judge to determine the most effective way to stop the criminal activity.”).

[75] See Rotella v. Wood, 528 U.S. 549, 557 (2000).

[76] See Hoppe, supra note 72, at 1383.

[77] See United States v. Noriega, 746 F. Supp. 1506, 1512 (S.D. Fla. 1990).

[78] See United States v. Philip Morris USA, Inc., 477 F. Supp. 2d 191, 197 (D.D.C. 2007) (There is an “absence of dispositive Supreme Court case law on the subject of RICO’s extraterritoriality.”); see also Doe I v. State of Israel, 400 F. Supp. 2d 86, 115 (D.D.C. 2005) (“RICO does not indicate whether it is limited to the domestic borders of the United States.”); Poulos v. Caesars World, Inc., 379 F.3d 654, 663 (9th Cir. 2004) (“RICO itself is silent as to its extraterritorial application.”); North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1051 (2d Cir. 1996) (“The RICO statute is silent as to any extraterritorial application.”).

[79] 746 F. Supp. 1506 (S.D. Fla. 1990).

[80] Id. at 1516.

[81] Id. at 1517.

[82] Id. at 1519.

[83] See EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991); see also United States v. Noriega, 746 F. Supp. 1506, 1515 (S.D. Fla. 1990) (“Where a statute is silent as to its extraterritorial reach, a presumption against such application normally applies.”); William S. Dodge, The Presumption Against Extraterritoriality in Two Steps, 110 Am. J. Int’l L. Unbound 45, 45 (2016).

[84] See Butte Mining PLC v. Smith, 76 F.3d 287, 291 (9th Cir. 1996) (“We do not suppose that Congress in enacting RICO had the purpose of punishing frauds by aliens abroad even if peripheral preparations were undertaken by them here.”); see also Jose v. M/V Fir Grove, 801 F. Supp. 349, 357 (D. Or. 1991) (“[T]he language and legislative history of RICO fail to demonstrate clear Congressional intent to apply the statutes beyond U.S. boundaries. . . . RICO has been broadly construed to cover a wide array of conduct in light of the expansive language found within section 1962, but geographically, the procedural mechanisms contained within section 1965 are, on their face, limited to U.S. territory.”); see also Brink’s Mat, Ltd. v. Diamond, 906 F.2d 1519, 1524 (11th Cir. 1990) (Aldisert, J., dissenting) (“It was not Congressional intent, nor would it be proper were that the case, to deter the conduct of parties unconnected to the United States, or to provide windfall civil judgments to citizens of any country who sue citizens of another country for fraudulent transactions which only casually touch upon the United States. Congress only intended to deter the conduct of individuals within the borders of this country.”).

[85] See North South Fin. Corp. v. Al-Turki, 100 F.3d 1046, 1052 (2d Cir. 1996) (“Although there is little caselaw in this Circuit regarding the extraterritorial application of RICO, guidance is furnished by precedents concerning subject matter jurisdiction for international securities transactions and antitrust matters.”).

[86] See Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326, 1334 (2d Cir. 1972) (developing the conduct test and defining it conduct within the U.S. territory sufficient to form jurisdiction in instances where “there has been significant conduct within the territory”).

[87] See Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (2d Cir. 1968) (developing the effects test and allowing for extraterritorial jurisdiction “to protect domestic investors who have purchased foreign securities on American exchanges and to protect the domestic securities market”).

[88] See Poulos v. Caesars World, Inc., 379 F.3d 654, 663 (9th Cir. 2004) (“RICO itself is silent as to its extraterritorial application. Although the RICO and the securities fraud contexts are not precisely analogous, the [conduct and effects] tests used to assess the extraterritorial application of the securities laws provide useful guidelines . . . .”).

[89] See Lievsay, supra note 21, at 1747.

[90] See generally Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010).

[91] See Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 172 (2d Cir. 2008) (noting that a foreign-cubed transaction involves “a set of (1) foreign plaintiffs . . . suing (2) a foreign [defendant] in an American court for violations of American . . . laws . . . in (3) foreign countries”).

[92] See Morrison, 561 U.S. at 251–52.

[93] Id. at 255.

[94] See id. at 266.

[95] See Julian Simcock, Recalibrating After Kiobel: Evaluating the Utility of the Racketeer Influenced and Corrupt Organizations Act (“RICO”) in Litigating International Corporate Abuse, 15 CUNY L. Rev. 443, 465 (2012) (“Although the expansive scope of RICO’s ‘enterprise’ once suggested that courts might draw a wide net over players involved at the periphery of an enterprise’s activities, domestic case law has substantially curtailed this reach.”).

[96] Morrison, 561 U.S. at 265.

[97] Id. at 284.

[98] See Lievsay, supra note 21, at 1767 (“[C]ourts widely agree that RICO does not apply extraterritorially . . . .”); see also Mark, supra note 21, at 604 (“Thus far, in the post-Morrison era federal courts have applied the presumption against extraterritoriality that was endorsed by the Supreme Court in that case, and in so doing they have unanimously concluded that RICO has no extraterritorial application.”).

[99] See Safran, supra note 36, at 48–49 (“[T]hese cases all have found that Congress did not clearly express an intention for RICO to have extraterritorial reach, and, thus, that courts . . . must apply a presumption against extraterritoriality, and ascertain RICO’s ‘focus’ for purposes of determining whether a particular application of RICO is domestic or extraterritorial.”).

[100] See Franklin A. Gevurtz, Building a Wall Against Private Actions for Overseas Injuries: The Impact of RJR Nabisco v. European Community, 23 U.C. Davis J. Int’l L. & Pol’y 1, 8 (2016).

[101] Id. at 7 (“After Morrison, we are bereft of further guidance from the Supreme Court on how to determine the focus of a statute for purposes of the presumption against extraterritoriality.”).

[102] 733 F. Supp. 2d 471 (S.D.N.Y. 2010).

[103] Id. at 472.

[104] Id. at 472.

[105] Id. at 473.

[106] Id. at 474.

[107] Id.

[108] Id. (“RICO does not apply where, as here, the alleged enterprise and the impact of the predicate activity upon it are entirely foreign.”).

[109] 631 F.3d 29 (2d Cir. 2010).

[110] Id. at 31.

[111] Id. at 33 (“The slim contacts with the United States alleged by Norex are insufficient to support extraterritorial application of the RICO statute.”).

[112] Id. at 31.

[113] Id. at 33.

[114] Id. at 32.

[115] Id. at 33 (“Morrison similarly forecloses Norex’s argument that because a number of RICO’s predicate acts possess an extraterritorial reach, RICO itself possesses an extraterritorial reach.”).

[116] 2011 U.S. Dist. LEXIS 23538 (E.D.N.Y. Mar. 8, 2011).

[117] See id. at *18.

[118] 559 U.S. 77 (2010).

[119] Id. at 81–82; see also 2011 U.S. Dist. LEXIS 23538 at *18.

[120] See Hertz Corp., 599 U.S. at 78; see also 2011 U.S. Dist. LEXIS 23538 at *18.

[121] Lievsay, supra note 21, at 1769.

[122] Id. (emphasis added).

[123] Safran, supra note 36, at 56 (emphasis added).

[124] 824 F. Supp. 2d 1193 (D. Colo. 2011).

[125] Id. at 1200–03.

[126] Id. at 1209.

[127] Id. at 1209–10.

[128] Id. at 1209.

[129] Id. at 1210; see also Norex Petroleum Ltd. v. Access Indus. Inc., 631 F.3d 29 (2d Cir. 2010); Cedeño v. Intech Group Inc., 733 F. Supp. 2d 471 (S.D.N.Y. 2010).

[130] CGC Holding Co., 824 F. Supp. 2d at 1210.

[131] Id.

[132] 871 F. Supp. 2d 229 (S.D.N.Y 2012).

[133] Id. at 236.

[134] Id.

[135] Id. at 244, 254; see also CGC Holding Co., 824 F. Supp. 2d at 1210.

[136] Donziger, 871 F. Supp. 2d at 245.

[137] Id. at 246 (“Accordingly, insofar as the Donziger Defendants’ motion seeks dismissal of the RICO claims under Morrison, their motion must be denied.”).

[138] See Lievsay, supra note 21, at 1770.

[139] E.g., Gevurtz, supra note 100, at 11.

[140] See 706 F.3d 965, 975 (9th Cir. 2013) (abrogated by RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2016)).

[141] Id. at 972–73.

[142] Id. at 979.

[143] Id. at 977.

[144] Id. (“Therefore, an inquiry into the application of RICO to Defendants’ conduct is best conducted by focusing on the pattern of Defendants’ racketeering activity as opposed to the geographic location of Defendants’ enterprise.”).

[145] Id. at 975–76.

[146] Id. at 977 (quoting Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U.S. 143, 154 (1987)).

[147] 18 U.S.C. § 1962(a)-(d) (2018) (emphasis added).

[148] 706 F.3d at 977–78 (“Given this express legislative intent to punish patterns of organized criminal activity in the United States, it is highly unlikely that Congress was unconcerned with the actions of foreign enterprises where those actions violated the laws of this country while the defendants were in this country. Thus, to determine whether Defendants’ count one convictions are within RICO’s ambit, we look at the pattern of Defendants’ racketeering activity taken as a whole.”).

[149]See id. at 978, 994 (“The second part, however, bound the Defendants’ enterprise to the territorial United States. This second part involved racketeering activities conducted within the United States including the commission of RICO predicate crimes based on violations of United States immigration laws . . . .”).

[150] See RJR Nabisco, 136 S. Ct. at 2102.

[151] See United States v. Chao Fan Xu, 706 F.3d 965, 977 (9th Cir. 2013).

[152] Id.

[153] 764 F.3d 129 (2d Cir. 2014).

[154] Id. at 138.

[155] See Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 284 (2010) (Stephens, J., concurring).

[156] European Cmty., 764 F.3d at 136.

[157] Id.

[158] Id.

[159] See Lievsay, supra note 21, at 1767.

[160] Id.

[161] 6 U.S. 64 (1804).

[162] Id. at 118.

[163] 260 U.S. 94 (1922).

[164] Id. at 98.

[165] Id.

[166] Id. (emphasis added).

[167] See Mark, supra note 21, at 585.

[168] 136 S. Ct. 2090, 2090 (2016).

[169] Id. at 2098.

[170] Id. at 2112 (Ginsburg, J., concurring in part and dissenting in part).

[171] Id. at 2098 (majority opinion).

[172] Id.

[173] Id. (“The complaint alleges that RJR engaged in a pattern of racketeering activity consisting of numerous acts of money laundering, material support to foreign terrorist organizations, mail fraud, wire fraud, and violations of the Travel Act. RJR, in concert with the other participants in the scheme, allegedly formed an association in fact that was engaged in interstate and foreign commerce, and therefore constituted a RICO enterprise . . . .”).

[174] Id.

[175] Id. (“These violations allegedly harmed respondents in various ways, including through competitive harm to their state-owned cigarette businesses, lost tax revenue from black-market cigarette sales, harm to European financial institutions, currency instability, and increased law enforcement costs.”).

[176] Id. at 2099; see European Cmty. v. RJR Nabisco, Inc., No. 02-CV-5771-NGG-VVP, 2011 WL 843957, at *7 (E.D.N.Y. Mar. 8, 2011).

[177] European Cmty. v. RJR Nabisco, Inc., 764 F.3d 129, 133 (2d Cir. 2014).

[178] 18 U.S.C. § 1952 (2020).

[179] RJR Nabisco, 764 F.3d at 139–42.

[180] Id. at 150–51 (“The panel denied rehearing and issued a supplemental opinion holding that RICO does not require a domestic injury. If a foreign injury was caused by the violation of a predicate statute that applies extraterritorially, the court concluded, then the plaintiff may seek recovery for that injury under RICO.”).

[181] European Cmty. v. RJR Nabisco, Inc., 783 F.3d 123, 124 (2d Cir. 2015).

[182] RJR Nabisco, 136 S. Ct. at 2099.

[183] See id.

[184] Id. at 2103.

[185] Id. at 2106.

[186] Id. at 2100.

[187] Id. (quoting Smith v. United States, 507 U.S. 197, 204 (1993)).

[188] Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).

[189] RJR Nabisco, 136 S. Ct. at 2101 (emphasis added).

[190] Id.

[191] Id. at 2101–03.

[192] Id. at 2102 (“To give a simple (albeit grim) example, a violation of §1962 could be premised on a pattern of killings of Americans abroad in violation of §2332(a)—a predicate that all agree applies extraterritorially—whether or not any domestic predicates are also alleged.”).

[193] Id.

[194] Id.

[195] Id.

[196] Id. at 2103 (“Congress has not expressly said that §1962(c) applies to patterns of racketeering activity in foreign countries, but it has defined ‘racketeering activity’—and by extension a ‘pattern of racketeering activity’—to encompass violations of predicate statutes that do expressly apply extraterritorially. Short of an explicit declaration, it is hard to imagine how Congress could have more clearly indicated that it intended RICO to have (some) extraterritorial effect.”).

[197] Id.

[198] Id.

[199] Id.

[200] Id. at 2104.

[201] Id. (“Congress, after all, does not usually exempt foreigners acting in the United States from U.S. legal requirements.”).

[202] Id. at 2105.

[203] Kiobel v. Royal Dutch Petrol. Co., 569 U.S. 108, 124–25 (2013).

[204] RJR Nabisco, 136 S. Ct. at 2105.

[205] Id.

[206] Id. at 2106.

[207] Id.

[208] Id.

[209] Id. at 2107.

[210] Id.

[211] Id.

[212] Id. at 2108 (“Respondents suggest that we should be reluctant to permit a foreign corporation to be sued in the courts of this country for events occurring abroad if the nation of incorporation objects, but that we should discard those reservations when a foreign state sues a U.S. entity in this country under U.S. law—instead of in its own courts and under its own laws—for conduct committed on its own soil. We refuse to adopt this double standard.”).

[213] Id.

[214] Id.

[215] Id. at 2108.

[216] Id. at 2109.

[217] Id. at 2111.

[218] Id.

[219] Id. at 2112–13 (Ginsburg, J., concurring in part and dissenting in part) (“One cannot extract such a limitation from the text of §1964(c), which affords a right of action to ‘[a]ny person injured in his business or property by reason of a violation of section 1962.’”).

[220] Id.

[221] Id. at 2113.

[222] Id. at 2114

[223] Id. at 2115 (emphasis added).

[224] Id.

[225] Id.

[226] Id.

[227] Id. at 2115–16.

[228] See id. at 2116 (Breyer, J., concurring in part and dissenting in part).

[229] Id.

[230] See generally Maggie Gardner, RJR Nabisco and the Runaway Canon, 102 Va. L. Rev. Online 134 (2016).

[231] See Safran, supra note 36, at 48.

[232] See Anthony J. Colangelo, The Frankenstein’s Monster of Extraterritoriality Law, 110 Am. J. Int’l L. Unbound 51, 54 (2016).

[233] Id. (“But as to the private right of action, the Court was not willing to look through RICO to the predicates in order to discern the statute’s geographic scope.”).

[234] Id.

[235] Id.

[236] Id.

[237] See Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 253–54 (2010); see also Hannah L. Buxbaum, The Scope and Limitations of the Presumption Against Extraterritoriality, 110 Am. J. Int’l L. Unbound 62, 64 (2016); Gevurtz, supra note 100, at 16 (“No prior decision ever suggested that the presumption separately applied both to the substantive prohibitions of a statute and any remedy provision the statute contained.”).

[238] Buxbaum, supra note 237, at 64.

[239] See Gevurtz, supra note 100, at 16–17.

[240] Id. at 17–18.

[241] Id. at 19.

[242] Pamela K. Bookman, Doubling Down on Litigation Isolationism, 110 Am. J. Int’l L. Unbound 57, 57 (2016).

[243] Id. at 57–58.

[244] See Gevurtz, supra note 100, at 19 (“The Court seems to think it mooted this issue by finding that RICO’s inclusion of predicate crimes, which can take place outside of the United States, rebutted the

presumption against extraterritoriality.”).

[245] Id. at 20 (“It could be that the pattern of racketeering activities is RICO’s focus and that the inclusion of some predicate crimes intended to have extraterritorial reach among the list of racketeering activities rebuts the presumption against extraterritoriality for a pattern of racketeering involving those predicate crimes. Alternately, however, it is equally plausible that the enterprise is RICO’s focus and Congress felt at liberty to include among the predicate crimes ones that could occur abroad, because, so long as the enterprise was in the United States, there is no extraterritoriality for RICO as a whole even when the pattern of racketeering activities occurs abroad.”).

[246] Id. at 21.

[247] Id. at 23.

[248] RJR Nabisco, 136 S. Ct. at 2101; see also Dodge, supra note 83, at 49.

[249] Dodge, supra note 83, at 49.

[250] Id.

[251] Id. at 50.

[252] Carlos M. Vázquez, Out-Beale-ing Beale, 110 Am. J. Int’l L. Unbound 68, 70 (2016).

[253] Id. at 71.

[254] Id. at 72.

[255] See Colangelo, supra note 232, at 53 (“RJR’s most significant holding is that RICO creates a private right of action only for injuries suffered on U.S. territory.”).

[256] See Gevurtz, supra note 100, at 2.

[257] Id.

[258] See Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 265 (2010).

[259] See Colangelo, supra note 232, at 56 (“Recognizing the extraterritorial scope of RICO’s private right of action would not only have comported with the statute’s text and structure, but also would have effectuated one of the presumption’s key purposes.”).

[260] Id.

[261] Id.

[262] See Gevurtz, supra note 100, at 14 (“Most critically, the injury to business or property language in RICO has nothing to do with the policy rationale behind the Court’s decision.”).

[263] Id. at 15.

[264] See Gevurtz, supra note 100, at 15.

[265] Id.

[266] See Simcock, supra note 95, at 454.

[267] Id. at 455.

[268] 18 U.S.C. § 1964(c).

[269] See, e.g., Simcock, supra note 95, at 455.

[270] Pub. L. No. 91-452, 84 Stat. 922, 947 (1970); see also Simcock, supra note 95, at 455 (noting that the injury restriction in civil RICO “sits in contrast, however, to an uncodified portion of the RICO statute in which Congress articulates its intention that RICO “be liberally construed to effectuate its remedial purposes”).

[271] See Gevurtz, supra note 100, at 16.

[272] Id. at 16, 29 (“While nominally just a decision about the scope of RICO, RJR Nabisco casts a shadow over future lawsuits to recover damages under the express or implied private causes of action for violation of numerous federal statutes when the injury occurs outside of the United States.”).

[273] RJR Nabisco, 136 S. Ct. at 2106.

[274] See Colangelo, supra note 232, at 55.

[275] Id. (“The curious wrinkle in RJR when it comes to the foreign relations rationale is that judicial application of the presumption was far more likely to cause foreign relations friction than to avoid it.”).

[276] See Gevurtz, supra note 100, at 12 n.70 (The European Community is “the collective of European nations from which the English just voted to exit. At the time this lawsuit commenced, the EC was one of the components of the European Union, a distinction that ended when the EC merged into the EU under the Lisbon Treaty.”).

[277] See Stephanie Francq, A European Story, 110 Am. J. Int’l L. Unbound 74, 74 (2016).

[278] Id.

[279] Id.

[280] Id. at 78.

[281] See Paul B. Stephan, Private Litigation as a Foreign Relations Problem, 110 Am. J. Int’l L. Unbound 40, 43 (2016) (“If a foreign sovereign embraces U.S. regulation, why does it fall to the Supreme Court to deny it?”); see also Colangelo, supra note 232, at 55 (“Thus we have affirmative evidence that the relevant foreign nations wanted RICO’s private right of action to extend into their territories.”).

[282] See Gevurtz, supra note 100, at 29 (“The essential idea behind this foreign relations rationale is that applying U.S. law to events outside the United States can upset other countries, which is a risk courts should interpret statutes to avoid absent evidence that Congress really wants to take this risk.”).

[283] See Gevurtz, supra note 100, at 25 (“Government prosecutors presumably will take into account potential foreign relations problems when exercising their discretion about bringing an action involving events outside the United States, whereas there is little incentive for private parties to do so.”); see also Stephan, supra note 281, at 42 (noting that “prosecutors must internalize the effect of their decisions on other countries and their governments,” but that “[p]laintiffs and their lawyers may have multiple interests . . . but none normally takes into account the foreign relations goals of the United States”).

[284] Stephan, supra note 281, at 42.

[285] Id. (“We may tolerate paying this price when it comes to our domestic political economy, but foreign relations costs may fall into a different category.”).

[286] Id. at 43.

[287] See Mark, supra note 21, at 590.

[288] Id.

[289] See Gevurtz, supra note 100, at 26 (“[T]he Court does not ask when a private claim with some overseas aspect will, by virtue of that aspect, potentially cause friction with other governments.”).

[290] See RJR Nabisco, 136 S. Ct. at 2107.

[291] Id. at 493 (“We must ask this question regardless of whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.”).

[292] See Buxbaum, supra note 237, at 66 (noting that, in Kiobel, the ATS lacked extraterritorial reach and failed the U.S. touch and concern requirement and that, in Morrison, Section 19(b) lacked extraterritorial application and was outside the statute’s reach since it was based on foreign conduct. Similarly, she observes, in RJR Nabisco, the plaintiffs had all waived their claims to domestic injuries and thus could not assert a civil RICO claim. None of these cases resulted in the extension of U.S. law, so there was no chance to evaluate the resulting implications.).

[293] See Gevurtz, supra note 100, at 7 (“Be this as it may, it is difficult to escape the suspicion that how strict the Court is in its demands for clear evidence depends upon how much the Court desires to confine the particular statute before the Court to domestic events.”).

[294] Id. (“[T]here may be situations in which a permissible application of U.S. law to foreign conduct might nevertheless create jurisdictional conflict. The Court’s recent extraterritoriality jurisprudence has not confronted this question.”).

[295] See RJR Nabisco, 136 S. Ct. at 2096–97. Justice Alito poses a related inquiry and answer in the opinion: “[w]hat if we find at step one that a statute clearly does have extraterritorial effect? Neither Morrison nor Kiobel involved such a finding.” Id. at 2101. RJR Nabisco also was irrelevant since the claimants had waived their domestic injury damages claims.).

[296] See Buxbaum, supra note 237, at 66 (contending that “this form of territorialism is simply incompatible with the effective operation of regulatory statutes in today’s economy, and fails to capture the ways in which domestic and foreign regulatory interests coincide and overlap with each other”).

[297] See Bookman, supra note 242, at 57.

[298] See id. at 59 (noting that RJR Nabisco may seem that it serves international comity, “but it is questionable whether it does so”).

[299] Id. at 59.

[300] Id. at 61.

[301] See RJR Nabisco, 136 S. Ct. at 2102. (“If a particular statute does not apply extraterritorially, then conduct committed abroad is not ‘indictable’ under that statute and so cannot qualify as a predicate under RICO’s plain terms.”).

[302] See id. at 2106.

[303] See id. at 2102 (“Congress’s incorporation of these (and other) extraterritorial predicates into RICO gives a clear, affirmative indication that § 1962 applies to foreign racketeering activity—but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.”).

[304] See id. at 2111 (“Section 1964(c) requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries.”).

[305] Id. at 2104 (“RICO—or at least §§1962(b) and (c)—applies abroad, and so we do not need to determine which transnational (or wholly foreign) patterns of racketeering it applies to; it applies to all of them, regardless of whether they are connected to a “foreign” or “domestic” enterprise.”).

[306] Id. at 2105.

[307] Id. at 2106 (emphasis in original).

[308] See id. at 2102.

[309] See id. at 2110–11.

[310] See id. at 2102; 2105.

[311] See id.

[312] See id. at 2102, 2111.

[313] See United States v. Noriega, 746 F. Supp. 1506, 1510 (S.D. Fla. 1990).

[314] See RJR Nabisco, 136 S. Ct. at 2105.

[315] Id. at 2094.

[316] See Noriega, 746 F. Supp. at 1517.

[317] See S. Rep. No. 91-617, at 45–46 (1969) (revealing that the President, in the Senate Report of 1969, has “authorized the Attorney General to engage in wiretapping of organized racketeers” and “establish a unique Federal-State Racket Squad in New York City,” has “asked the congress to increase the fiscal 1970 budget by $25 million” and “to approve a $300 million appropriation in the 1970 budget,” and has furthermore “directed the Attorney General to mount our Federal anti-organized crime offensive and to coordinate the Federal effort with State and local efforts where possible,” amongst other steps on the federal level).

[318] Id. at 46 (noting that state and local measures enacted to combat organized crime in the 1969 Senate Report included the “exchange [of] recent knowledge,” “technical assistance and financial help” by the Justice Department, “fostering cooperation and coordination between States and between communities,” and “providing Federal aid” to make people aware of the nature and scope of organized crime, amongst other measures identified in the Senate Report).

[319] Id.

[320] See Anthony S. Barkow & Rachel E. Barkow, Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct 1 (2011).

[321] See G. Robert Blakey, Federal Criminal Law: The Need, Not for Revised Constitutional Theory or New Congressional Statutes, But the Exercise of Responsible Prosecutorial Discretion, 46 Hastings L.J. 1175, 1179 (1995).

[322] Id.

[323] Id. (“Viewed through an ideological framework, proposals from each side are too often viewed as mutually exclusive alternatives. Debate becomes emotional and polarized. Division, deadlock, and delay are the result.”).

[324] Id. at 1184 (noting that “[t]he normal bonds of community seem to be breaking up”).

[325] Id. at 1197.

[326] Id. at 1198.

[327] Id. at 1201.

[328] Id. at 1208.

[329] Id. at 1210.

[330] Id. at 1214 (“[I]nternational organized crime is the challenge of the future for criminal justice.”).

[331] Id. at 1216.

[332] Id. at 1218 (“Every part of our systems of criminal justice is undernourished. Personnel are insufficient, poorly paid, untrained, and unorganized.”).

[333] Id. (asserting that “we must focus principally on questions of administration, not theory” and that “t is time we start asking the right questions.”).

[334] See Phil Angelides et al., The Financial Crisis Inquiry Report: Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States xvii–xxv (2011) (noting the major findings and conclusions as pertaining to the 2008 Recession:

• “We conclude this financial crisis was avoidable.”
• “We conclude widespread failures in financial regulation and supervision proved devastating to the stability of the nation’s financial markets.”
• “We conclude dramatic failures of corporate governance and risk management at many systemically important financial institutions were a key cause of this crisis.”
• “We conclude a combination of excessive borrowing, risky investments, and lack of transparency put the financial system on a collision course with crisis.”
• “We conclude the government was ill prepared for the crisis, and its inconsistent response added to the uncertainty and panic in the financial markets.”
• “We conclude there was a systemic breakdown in accountability and ethics.”
• “We conclude collapsing mortgage-lending standards and the mortgage securitization pipeline lit and spread the flame of contagion and crisis.”
• “We conclude over-the-counter derivatives contributed significantly to this crisis.”
• “We conclude the failures of credit rating agencies were essential cogs in the wheel of financial destruction.”).

[335] See Gevurtz, supra note 100, at 25.

[336] For the Supreme Court decision and subsequent congressional amendment in Dodd-Frank reversing the holding regarding the extraterritorial reach of the anti-fraud provisions of the Exchange Act, see Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010); Dodd-Frank Wall Street Reform and Consumer Protection Act, § 929P(b), Pub. L. No. 111-203, 124 Stat. 1376 (2010). For the Supreme Court’s holding on the geographic scope of Title VII and Congress’s amendment of Title VII reversing the opinion, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991); 42 U.S.C. §2000e-1(b).

[337] See Hoppe, supra note 72, at 1399.

[338] See Dodge, supra note 83, at 50.

[339] See Lievsay, supra note 21, at 1752.

[340] See Hoppe, supra note 72, at 1397.

[341] See Colangelo, supra note 232, at 55.

[342] See Lievsay, supra note 21, at 1771–72.

[343] Id. at 1772.

[344] See Colangelo, supra note 232, at 55; see also Lievsay, supra note 21, at 1771–72.

[345] See Mark, supra note 21, at 606.

[346] See 18 U.S.C. § 1962(a)–(d).

[347] See Donaher, supra note 27, at 232.

[348] Id.

[349] Id.

[350] Id. (“This will ensure fairness throughout criminal prosecutions, a more confident application by prosecutors, and better guidance for the judiciary.”).

[351] See Blakey & Gettings, supra note 27, at 1012 n.13 (“Administrative abuse is an incident of administration; it is not necessarily caused by poor statutory draftsmanship, and its cure usually lies in careful selection of administrative personnel, not more legislation.”).

[352] See Donaher, supra note 27, at 229 (“With the RICO statute, courts have engaged in a regime of impermissible judicial lawmaking in the way in which they ignore congressional intent by implementing their own views.”).

[353] See Blakey, supra note 42, at 709.

Combination Among the States: Why the National Popular Vote Interstate Compact is an Unconstitutional Attempt to Reform the Electoral College

Patrick C. Valencia[*]

“In all, the invisible federalism that has gone largely unnoticed in present presidential election debates serves a valuable purpose. It accounts for nonvoters, it maximizes enfranchisement, and it discourages interstate meddling. Federalism is not simply an impediment to Electoral College reform—it is a foundational element of its defense, one that precludes reform.”[1]

Abstract

Since the 2000 election “misfire” produced a President who won the Electoral College but lost the national popular vote, the National Popular Vote Interstate Compact (“the Compact”) has garnered support across the nation. Under the terms of the Compact, the states would thereafter pledge their electoral votes to the winner of the national popular vote, regardless of the outcome of the election within their own state. The Compact, already successfully approved by eleven states and the District of Columbia, needs its signatories to possess at least 270 electoral votes before it takes full effect and converts the Electoral College into a de facto direct popular election of the President. The current compacting states possess 165 electoral votes, and therefore need only 105 more before the Compact takes effect, a total that can be reached with the consent of as few as four more states. This article argues that this possibility makes the Compact a constitutional crisis–in–­­waiting. Although this crisis is not yet upon us, it lurks in the shadows and must be addressed before it has the chance to alter a presidential election and take away any and all effective electoral power from as many as thirty–nine states.

This article explains that the Compact is unconstitutional because it promotes combination among the states and effectively creates a direct popular election. Because these results are precisely what the Framers deliberately sought to avoid when they carefully detailed the “finely wrought” electoral procedures in Article II, Section 1, the Compact makes an impermissible fundamental alteration to the Electoral College. This Note examines the historical evidence of the Federal Convention, ratification debates, and writings of the Founding era and, in doing so, concludes that the Framers specified these procedures to prevent combination among the states and allow each individual state to vote according to its distinct interests. The Compact would force a state’s electors to disregard their state’s unique interests and, instead, vote for whomever secures a plurality of the national popular vote, regardless of that candidate’s performance in that specific state. To prevent this crisis-in-waiting from occurring, this Note concludes that if states ever attempt to enforce the Compact, a court should apply the “finely wrought” standard from Chadha and City of New York and strike down the deal, thereby preventing supporters of the Compact from passing a de facto constitutional amendment that deprives the non–compacting states of their current political power in presidential elections.

Introduction

Imagine, if you will, this chain of events:

“Good evening. This is NBC News Election Central.”[2] It is Tuesday, November 8, 1960—election night—and millions of Americans crowd their television sets as NBC’s flagship nightly news program, the Huntley-Brinkley Report, begins.[3] These Americans, most of them voters, hope the wait for the final results does not drag late into the night. After the first commercial break, anchor Chet Huntley tells Americans watching that it will be an early night—not because there is a clear winner, but because nothing will be decided that night. Returns have begun to pour in, and it is clear that the popular vote will be as close as it has ever been. In fact, Huntley reports there are already two lawsuits set to be filed the next day in New York City and Chicago by voters contesting the counting of the votes in local precincts. Reminding voters of the new electoral system, under which a minority of states possessing over 269 electoral votes will decide the election by binding their electors to the winner of the national popular vote, Huntley predicts that, as votes are counted and recounted and lawsuits are litigated and relitigated, this election will not be decided until mid-to-late December.

Indeed, he would prove to be correct as the election was not decided until almost Christmas Day. Just 0.17% separated Richard Nixon from the winner, President John F. Kennedy, in the national popular vote, meaning that miscounts or voting irregularities in any major city could have swung the election for the Democrats.[4] As they wait for a record number of lawsuits to be resolved before the final vote could be tallied, voters worry that this may be the new normal for American presidential elections. Moreover, voters in states like Iowa and New Hampshire, who never had even one candidate step foot in their state, feel they are neither heard nor represented in this new system of presidential elections, one which they did not condone and explicitly voted down in their own legislatures. Other voters are upset because their own electors voted for someone that did not come close to winning their own state’s popular vote. The atmosphere is chaotic. There is a constitutional crisis at hand.

***

In reality, the 1960 presidential election was decided easily. Despite the razor-thin 0.17% margin in the national popular vote, President Kennedy defeated Nixon in a landslide Electoral College victory, 303-219.[5] (The same cannot be said for the 2000 election, in which the Electoral College turned on a single state.) But, if the National Popular Vote Interstate Compact (“the Compact”) had been in effect in 1960, this fictional account could have been reality.

The Compact, whether achieved through state statute or congressional approval, is unconstitutional because it alters provisions of the Constitution that detail the “finely wrought” procedures,[6] a term of art as defined in INS v. Chadha,[7] of the Electoral College. This does not mean that the Compact’s ultimate goal is unachievable. What it does mean is that, like other important changes to the electoral process like universal suffrage and the lowering of the voting age to eighteen, such a result must come through the Article V amendment process.^[8] Supporters of the Compact, who in theory could push through their idea with just eleven states—far fewer than the thirty-eight required by Article V—hope to usurp the constitutionally required electoral procedures by keeping the technical procedure of the Electoral College in place, while in reality creating a de facto direct popular election of the President. Passed in eleven states and the District of Columbia, but not yet in effect because the compacting states first need to possess at least 270 electoral votes,[9] the Compact is a movement lurking in the halls of our electoral system, waiting to thrust the electoral system into constitutional crisis.

Proponents of the Compact are open about their desire to make that exact end run around the Framers’ design.[10] The Compact creates a situation where a state’s electors are required to vote for a candidate that the very same state’s voters might have rejected drastically. Unless passed by Constitutional amendment, the Compact cannot be allowed to take effect because, amongst other reasons, the Constitution’s finely wrought electoral procedures were meant to (1) prevent combination among the states of the exact sort which is the foundation of the Compact,[11] and (2) inject our potentially top-heavy system with an additional federalism safeguard—which the Compact explicitly and purposefully undermines.[12]

This article critiques the Compact on both functionalist and formalist grounds. The Compact goes against the spirit of the Constitution and the intentions of the Framers because it creates combination among the states, a result which the Framers explicitly sought to prevent by detailing clear, finely wrought electoral procedures.[13] Additionally, the Compact effectively results in a direct popular election of the President, a direction the Framers explicitly intended to avoid. The Framers focused great energy on the election of the national executive, had extensive debate, and voted on numerous different electoral proposals.[14] What is clear from this historical evidence, as well as subsequent ratification debates and early congressional debates, is that the Framers feared combination among the states and they strongly opposed a direct popular vote.[15] Yet, once states that possess at least 270 electoral votes pass the Compact, they will effectively impose a direct popular election on the rest of the country facilitated by explicit combination among the states, and will have extinguished any effective political power of the non-compacting states in the national election, despite the guarantees of protection to the small states that the Constitution formalized.[16]

Part I recounts the origins and development of the Electoral College, specifically analyzing what the Founding era, Federal Convention, and Constitutional structure reveal about the original meaning of the Electoral College. Part II provides background on the Compact by giving a brief history of the movement, detailing the mechanics of the legislation, and then discussing some of the reasons it has been passed to help give the reader context as to the motivations of Compact supporters. Part III discusses cases in which the Supreme Court has analyzed modifications of electoral procedure, before discussing Supreme Court cases striking down legislation (that is, not Constitutional amendments)) for fundamentally altering finely wrought constitutional procedures similar to the Electoral College. Part IV analyzes how the Compact fundamentally alters finely wrought procedures detailed by the Framers, then demonstrates that the Compact, unless passed by Article V procedure, is repugnant to the purpose and original meaning of these finely wrought electoral procedures, and should be struck down by courts once it enters into force by its own terms.

I. Origins, Development, and Federalist Purpose of the Electoral College

Along with the threat of political division between the states, the threat of combination among the states was a major impetus for the Federal Convention—and eventual adoption of the Electoral College—and thus is an important contextual point when analyzing the Convention debates on the electoral process.[17] In the period leading up to the Convention, when the Articles of Confederation still governed, the mid-Atlantic states—Maryland, Virginia, Pennsylvania, and Delaware—were about to enter into a commercial alliance.[18] With the Confederation Congress lacking the power to block states from entering trade wars, raise its own revenue, enforce national laws, or even supersede states’ own printed currency, the threat of the American economic heartland joining forces at the other states’ expense prompted the states south of Virginia to counter with a commercial alliance of their own. Contemporaries assumed that the Southern pact would then lead to a combination of the Northern states into a third commercial alliance.[19] Thus, without intervention by the Convention, the states were at risk of becoming disorganized, quasi-national rivals under these regional commercial alliances.[20] To avoid this and the other pitfalls precipitated by the Articles of Confederation, James Madison and others sought a stronger, albeit limited, federal government that would provide the alliance and organization the states needed.[21] Thus, against the historical background of weak states forming separate commercial alliances to counter the strength of larger states’ alliances, the Framers set out to draft a constitution at the Convention that, in addition to giving the Federal government more power, prevented internal combinations among the states that could ultimately fracture the Republic.

In drafting the Constitution, the Framers extensively debated numerous proposals for the selection of the national executive before reaching a compromise—the Electoral College—that gave states an important role in the selection.[22] To understand the underpinnings of this debate, it helps to conceptualize the Electoral College within the context of the larger debate at the Convention— a debate between supporters of the Virginia Plan and those of the New Jersey Plan, which had pitted the large states against small states. This led to the foundational compromise that created the federal structure and the Electoral College as it is exists today, and without which there would likely be no Constitution.[23] The Framers abandoned the idea of a purely majoritarian system at the outset (in the Articles of Confederation) and, faced with the opportunity to adopt one at the Convention, nevertheless preserved large elements of the state-based framework. This federalism-based compromise gave states an important role in the government, and small states a disproportionate role in comparison to that of large states, by providing for political safeguards of federalism.[24] Although these safeguards have been somewhat diluted since the Founding, one that remains today is the Electoral College.[25]

A. The Debate at the Federal Convention

The Framers debated numerous methods for electing the executive before settling on the Electoral College.[26] Three proposals received serious consideration, beginning with selection by the national legislature, which was proposed on June 2, 1787, and, after limited debate, was preliminarily approved by eight states.[27] The two other seriously debated proposals were selection by state legislatures and, the method which ended up in the Constitution, an electoral college system.[28]

Although these other methods of selection were seriously debated and preliminarily approved at certain points in the Convention, direct national popular election neither gained traction nor received extensive consideration among the Framers at the Convention.[29] Initially proposed by Gouverneur Morris on July 17, 1787, Morris himself even understood direct election had serious flaws, conceding that such a method would result in cabal, intrigue, and combination.[30] But, Morris felt selection by the national legislature would lead to the executive becoming a creature of the national legislature, and was thus equally as flawed as his proposal.[31] Many at the convention shared Morris’s worries, as reflected in the debate and votes—direct national popular election was put to vote twice, first on July 17, 1787, when it was voted against 9–1, and again on August 24, 1787, when it was voted against 9–2.[32] Direct popular election was, therefore, the least favored method of selection of the executive, as reflected in the table below.[33]

Finally, on September 6, 1787, by a vote of 9–2, selection by electors appointed by state legislatures—the Electoral College—passed as a compromise, allowing both the people and the states to participate while preserving the separation of powers inherent in the federal structure by keeping the national legislature out of the initial selection process.[34]

B. Outcome of the Convention—the Finely Wrought Electoral Procedure

Although the text of Article II does not explicitly address the prevention of combination among the states, the text reveals that part of the original understanding of the Electoral College was to prevent both domestic and foreign powers from intervening in the electoral process through the electors. Thus, despite debating numerous proposals for selection of the Executive at the Convention, the Framers rested upon the Electoral College because, not only did it produce the product they sought to achieve,[35] but it also created the political safeguards they found imperative.[36] Article II, Section 1 states that “[t]he Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[37] Moreover, the Twelfth Amendment states:

The Electors shall meet in their respective states and vote by ballot for President and Vice–President . . . which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted . . . and if no person have such majority . . . the House of Representatives shall choose immediately, by ballot, the President.[38]

The Framers specified that Electors were to meet in their “respective states” for the same reason they required electors to meet on the same day throughout the United States: “for the express purpose of preventing combinations.”[39] The Framers wanted to prevent one state’s electors from influencing another state’s electors—specifically keeping the large (in population) states from influencing the small states.[40] Hamilton, in Federalist No. 68, noted that

this detached and divided situation will expose [electors] much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.[41]

Later comments in the U.S. Senate during debates on possible electoral reform by Charles Pinckney and Rufus King, both of whom were present at the Convention, confirmed Hamilton’s suggestion that the Framers were worried about improper domestic combination, and thus responded by crafting the electoral process to prevent such activity.[42]

Understanding that separating the electors out into their respective states to vote on the same day could not, on its own, sufficiently prevent improper domestic and foreign influence, the Framers added the requirement of voting by sealed ballot—one that would only be opened during the actual vote-counting itself, and in front of both Houses of Congress.[43] “Vote by ballot” is a term of art that, at the time of the Founding, meant to vote secretly.[44] These secret ballots were then to be sealed and left unopened until they were counted by the President of the Senate in the presence of both Houses.[45] This procedure gave the electors discretion and allowed for them to vote without being improperly swayed by others, while also ensuring the votes would not be tampered with.[46]

Furthermore, even if each of these procedures would prevent improper combination at the elector voting level, the Framers recognized the need to detail additional procedures in the event of a contingent election in the House of Representatives, where the possibility of combination might still be present.[47] The Framers felt that holding the contingent election immediately upon the finding of no Electoral College majority, in addition to the secret, sealed balloting process, would sufficiently address these fears.[48] Because the literal meaning of the word “immediately” is instantly without delay,[49] it is clear that the Framers desired a contingent election to be held instantly upon a finding of no majority, “without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be Executive.”[50] By paying such close attention to these procedures, the Framers unwaveringly sought to stamp out any improper combination that would affect the product they desired from the electoral process: an impartial executive and an untainted government whose selections were based on federalist principles. These envisioned advantages of the Electoral College, as gleaned from the text of Article II, Section 1 and the Twelfth Amendment, demonstrate the Framers’ commitment to their ultimate proposal.

C. Federalist Principles Underlying the Finely Wrought Electoral Procedure

The back-and-forth history of Convention proposals for selection of the executive shows the Framers intended the selection to be federalist at its core, and thus made the states essential parts of the electoral process. They envisioned that through electors and Congressional delegations, states would represent their own distinct interests without any combination that could improperly affect such representation.[51] Created in the context of the federalism-based compromises that led to the bicameral structure of Congress, the resolution of the Electoral College debate was likewise a compromise between the large and small states. This compromise, which left a strong federalist imprint on the Electoral College, “was the means and price of the formation of the Union,”[52] “without which no Constitution or Union could have been formed.”[53] Thus, when evaluating whether an electoral reform proposal fundamentally alters the Electoral College, principles of 1790s federalism should weigh heavily in any modern analysis.[54]

Despite extensive debate at the Convention over the manner of selection of the executive, the Framers understood that, to achieve the type of executive they desired, the selection process must be federalist in nature; they balanced the process with the desired product.[55] Because “the true test of a good government is its aptitude and tendency to produce a good administration,”[56] the Framers conceded that the Electoral College may not have been appealing and perfect on its own right but, when compared to the other options available, debated, and rejected, was nevertheless the best means to achieve a strong, independent executive selected by states across the nation, who would represent each state’s distinct interests.[57]

It is true that the Constitution allows state legislatures to bind their own slate of electors,[58] but such action still must be compatible with the historical understanding of the electoral procedures in the Constitution, and thus must be consistent with the principles of process and product federalism. One example of this flexibility is state regulation of faithless electors. As a default rule, electors have discretion to be “faithless”—that is, to vote for whomever they choose, regardless of the vote of their state—because nothing in the Constitution, nor its history or spirit, prevents them from doing so.[59] This notion was first suggested by Hamilton in Federalist No. 68 when he described electors as “men most capable of [independently] analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation” who “will be most likely to possess the information and discernment requisite to such complicated investigations.”[60] However, as confirmed by the Supreme Court, states have the authority to take away a potentially faithless elector’s discretion and force her to vote for the candidate the state favored, which is a federalism-based power allowing the states to exert influence on the federal government.[61] As the political safeguards of federalism have weakened, a state’s ability to bind its electors asserts itself as another safeguard, thereby allowing states to exert influence on the federal government[62] because, after all, states are constituent parts of the federal government and “have a great share in [the President’s] appointment . . . .”[63]

States exercising their federalism-based authority to effect a constitutional change is not unprecedented, as seen by the movement that eventually led to the 1913 ratification of the Seventeenth Amendment.[64] However, the Seventeenth Amendment was not a violation of any “finely crafted” electoral procedure. Rather, it was consistent with the Framers’ federalist Constitutional understanding, as well as prior state practice. The Constitution originally provided for selection of senators through state legislatures.[65] The movement for direct popular election of senators began when states reasserted their traditional authority, and in doing so moved towards de facto statewide popular election of senators through nonbinding senatorial primaries or even general elections; this included various forms of pressure on the legislature to act accordingly—similar to the current state laws that bind electors to a state’s popular vote and threaten both civil and criminal penalties for doing otherwise.[66] Then, in 1913, the Seventeenth Amendment, providing for direct election of senators, was ratified.[67]

However, there is a very important distinction to note when applying the federalist principles of the Constitution to review a state’s attempt to effect a particular change in federal election procedures. Unlike the proponents of the NPVIC, the proponents of the Seventeenth Amendment changed how states elected their Senators, but not the fundamentally federalist nature of the Senate. The Seventeenth Amendment movement was effected by forcing state legislatures to look to their statewide elections, similar to how binding of electors occurs today; the Compact would require states’ own electors to disregard statewide elections in favor of the nationwide election, in many cases requiring their electors to contradict the state vote. Moreover, the movement for direct popular election of senators ended with a formal constitutional amendment, and not an interstate compact that bypassed the Constitution’s amendment procedures. For these reasons, although the Constitution, and federalism more generally, may allow state legislatures to bind their electors, how states go about binding their electors must still conform to the Framers’ purpose and principles followed in creating the Electoral College, as revealed through the history and text of both the Convention and the Constitution. After all, “as [the Electoral College] is one of the most important, so it is one of the most intricate provisions of the Constitution . . . .”[68]

II. The National Popular Vote Interstate Compact

The Compact was developed by critics of the Electoral College following the contentious election of 2000, and although its purpose is to create a common–sense approach to presidential elections, the rationales behind its creation, in light of the original understanding of the Electoral College as a finely wrought procedure intended to prevent combination, demonstrate that this approach has unconstitutional implications.

A. Origins and Development of the National Popular Vote Interstate Compact

In the days and months following the chaotic 2000 presidential election, many voters called for electoral reform.[69] Critics of the Electoral College took advantage of the public outrage over the Electoral College and offered several proposals to directly or indirectly eliminate it.[70] One idea these critics came up with was the National Popular Vote Interstate Compact (“the Compact”).[71] Supporters of the Compact lobby state legislatures to pass legislation that would award that state’s electoral votes to the winner of the overall national popular vote; once states possessing an absolute majority of electoral votes (currently at least 270) have passed such legislation, the theory goes, they will effectively create direct popular election of the President.[72] However, the Compact will not go into effect in the compacting states until enacted into law by states with such an absolute majority because no state would voluntarily abdicate its electoral influence without an assurance that the winner of the national popular vote would win in the Electoral College.[73]

First passed by the Maryland General Assembly in 2007, the Compact bill has become law in a total of eleven states plus the District of Columbia,[74] and has been introduced in all 50 states.[75] These states possess 172 electoral votes, thereby needing pledges of an additional 98 electoral votes before the Compact will take effect.[76] Theoretically—although unlikely due to the political makeup of these states—it would take just four more states (Florida, New York, Pennsylvania, and Texas, totaling 116 votes) for the Compact to go into effect, thus illustrating both how minimal state participation needs to be in order to fundamentally alter the federal electoral system, and how close to a constitutional crisis we may be.

B. Arguments for and Against the National Popular Vote Interstate Compact

Compact supporters advance numerous arguments in support of adoption,[77] but three of these arguments in particular are based on faulty rationales that ignore the intentional intricacies of the electoral process.

The main argument made by supporters of the Compact is that the national executive represents a singular constituency, and thus having a direct national popular election where only one vote, as opposed to fifty-one, matters is an intuitive and more common-sense approach to election of the national executive.[78]

Another argument claims that the Electoral College is inherently supposed to mirror the popular vote, and therefore the Compact will prevent “misfires”, in which a President wins the Electoral College, and the Presidency, while losing the national popular vote.[79]

Finally, supporters of the Compact argue that the Compact is consistent with federalism because it is an extension of a state’s “plenary power” to appoint electors and needs no approval, thereby circumventing any constitutional procedures like the Article I, Section 10 Compact Clause or the Article V amendment procedure.[80]

The problems with these arguments are manifold. First, the President explicitly represents not one set of voters, but fifty-one separate groups. Because of the numerous and distinct constituencies that elect the President, some of which have disproportionately greater influence in national affairs due to their size and location, the Framers established a process that was “manifestly nonmajoritarian” to allow for each state’s distinct interests to be represented.[81] The Framers crafted the appropriate process to achieve this product because they understood the importance of that product—an executive who represents the will of the states and not just regional interests.[82] The Framers’ allocation of disproportionate power for small (in population) states confirms their intention for the executive to also represent the small states, not just the large urban centers, whose voters are inherently easier to market to due to their densely packed nature.[83] The Compact would disrupt this delicate balance by urbanizing the presidential election, resulting in an electoral process not focused on a national campaign—still a hallmark of American elections.[84] Without the Electoral College, the federalist compromise achieved at the Convention would be subverted because all that citizens of the less populous states would “see [of the election] is the underside of [the presidential candidate’s] plane on his way to New York or California—if you have a set of binoculars.”[85]

While the state’s power to regulate elections has been described as “plenary,” this one-word descriptor does not resolve the matter because the Compact, like all interstate compacts, is required by the Constitution to be submitted to Congress for approval.[86] But even if Compact supporters went ahead and submitted the Compact for approval to Congress, Congress does not have the legal authority to approve the Compact because Congress cannot approve a compact that accomplishes something that Congress does not otherwise have the power to do.[87] Thus, although the arguments for the Compact may seem compelling on their face, the responses demonstrate how intricate and detailed the electoral procedures are in the Constitution and that, in the end, it is remarkably, and purposefully, difficult to alter procedures of the Electoral College.

Finally, although these previous arguments against the Compact may be compelling and are likely correct, they fail to address one important argument: by promoting combination among the states and effectively resulting in a direct popular vote, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures and thus may only be put into effect through formal Article V amendment procedure.

III. The Court, the Electoral College, and Finely Wrought Constitutional Procedures

The Supreme Court has not had many opportunities to rule on issues relating to attempted state alterations of the electoral process, but in three cases where it reviewed state attempts to alter federal election procedures, the Court noted that both elector discretion and federalism were central pillars to the electoral process, and any alterations going beyond those powers must be effectuated through Article V and not state law. One area the Supreme Court has decisively addressed is legislative alterations of “finely wrought” constitutional procedures, and, although the Supreme Court has never articulated a specific rule or standard to review federal election procedures, this Note argues that because of the intricate nature of election procedures in the Constitution, “finely wrought” is the proper standard. In addition, understanding the Court’s approach to such alterations can be helpful in analyzing the constitutionality of similar alterations to finely wrought procedures such as the Compact.

A. The Court’s (Limited) Treatment of Federal Elections

When states attempt to alter federal election procedures, the Supreme Court reviews “fundamental” changes closely. While it has had trouble in the past defining what “fundamental” means, if a state attempting to transform the electoral system into a national direct election is not fundamental, then nothing is. In this section, I outline the leading Supreme Court cases to analyze what is and is not a justifiable use of state power.

The most notable case is U.S. Term Limits, Inc. v. Thornton,[88] in which Court struck down a state legislative attempt to alter electoral procedures because the legislation went beyond the scope of traditional state powers.[89] The Term Limits Court was reviewing an Arkansas constitutional amendment that altered the electoral process by imposing term limits on Arkansas’ congressional delegation, even though the Constitution imposed no such qualification.[90] The Court held that Arkansas overstepped its traditional power over the electoral process because to “argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[91] Significantly, the Court took note that the electoral process was carefully prescribed by the Framers.[92] Convinced that upholding the legislation “would effect a fundamental change in the constitutional framework”—namely, the electoral process—the Court held that such an alteration must come not by a state law or constitutional amendment, but as other important changes in the electoral process have come—through Article V amendment procedure.[93]

Over a hundred years previously in McPherson v. Blacker,[94] the Court upheld Michigan legislation altering electoral procedures because Michigan’s choice to shift allocation of its electoral votes to a district-based method was within traditional state power.[95] The difference in result here can be attributed to one main distinction: while the changes in Term Limits attempted to change something beyond what is left to state discretion, here the Michigan legislature acted both within its plenary power and consistent with historical practice. The Court found this to be a proper exercise of state power because Michigan’s proposal was not incongruent with the Framers’ explicit intention in designing the Electoral College: many states divided their electoral votes in the Founding era.[96] Moreover, the Court said that the original expectation of the Framers, even if different from actual experience, was that “the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive.”[97] In exercising their plenary power to prescribe the method of choosing electors, state legislatures may influence this discretion, but the discretion nevertheless exists and does not disappear because of disuse over time.[98]

Finally, sixty years later in Ray v. Blair,[99] the Court upheld Alabama legislation authorizing state parties to select their nominees for elector in a party primary because, in addition to being a primary and not a general election, such an action was within the state’s traditional power to prescribe electors.[100] Acting on the grant of authority by the new legislation at issue, the Alabama Democratic Party required candidates for elector to pledge that they would support the party’s nominee at the Democratic National Convention.[101] In upholding the pledge in the presidential primary context (and declining to explicitly extend the holding to a general presidential election), the Court reaffirmed the notion that states can remove electors’ discretion as an exercise of state power to select electors as the state sees fit.[102]

In sum, although federal courts have not given extensive treatment to the question of how to treat state legislative attempts to alter finely wrought electoral procedures beyond allocation and appointment of electors, the Supreme Court has disfavored attempts by legislatures to go beyond their traditional state powers to alter the electoral process in general, just as it has employed equal skepticism towards attempted legislative changes to other finely wrought constitutional procedures.[103]

B. The Court’s Treatment of Alterations to Similar and Analogous Finely Wrought Constitutional Procedures

In regard to procedures analogous to the Electoral College, where the Framers took similarly great pains to craft detailed procedures in the Constitution, the Supreme Court has repeatedly defended the Constitutional text and its “finely wrought and exhaustively considered” procedures, and held that they may only be altered through formal Article V amendment.[104]

In INS v. Chadha, the Court relied on the finely wrought bicameralism and presentment requirements of Article I, Section 7, Clause 2 of the Constitution in striking down the one-house legislative veto.[105] Before the Court was federal legislation—in fact, a legislative procedure that was repeated in myriad federal statutes—allowing for the House or Senate, on its own, to veto an executive determination by the Attorney General not to deport a deportable alien.[106] Congress had delegated this authority to the Attorney General, but did not relinquish all of its authority, instead reserving the one-house veto for itself.[107] Respect for the finely wrought Constitutional procedures of bicameralism and presentment—which require every bill to pass both the House and Senate and be presented to the President before becoming law—led the Court to strike down the one-house veto because these requirements represented the significant and carefully-thought-out considerations of the Framers.[108]

In reviewing the constitutionality of the one-house veto, the Court relied heavily on the records of the Convention and the Federalist Papers[109] to reach the conclusion that, because the “Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions,” the one-house veto could not pass constitutional muster.[110] The Framers “single, finely wrought and exhaustively considered[] procedure” is an integral part of the separation of powers, and may only be changed by Article V amendment of the Constitution.[111] “In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crystal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency.”[112]

Similarly, in Clinton v. City of New York, which again presented the question of whether to defer to detailed constitutional procedures over efficiency, the Court struck down the Line Item Veto Act of 1996 as inconsistent with legislative procedures detailed by the Framers.[113] The Act gave the President the authority to cancel individual provisions in bills passed by Congress when signing the rest of the bill into law.[114] Citing to Chadha, the Court found the line item veto disrupted a “finely wrought” procedure (the Presentment Clause) because the line item veto, however efficient, evaded the Framers’ design—as evidenced by the debates and compromises of the Convention—by allowing the President to sign a bill into law in a form never voted on by either house.[115] The Court said that “f there is to be a new procedure in which the President will play a different role in determining the final text of what may ‘become a law,’ such change must come not by legislation but through the amendment procedures set forth in Article V.”[116]

In conclusion, Chadha and City of New York demonstrate that the Supreme Court strongly disfavors state and federal attempts to modify constitutionally required procedures because such actions circumvent the Constitution’s Article V amendment process. In these cases, the Court found that although some legislation may seem more common-sense in its efficiency, efficiency or, for that matter, one state’s view of common sense does not allow for fundamental alterations to procedures the Framers carefully crafted in their effort to produce a strong and principled government. “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.”[117]

IV. The Compact Is a Constitutional Crisis in Waiting

The states that have joined the National Popular Vote Interstate Compact may only accomplish their objective through a formal constitutional amendment because the Compact subverts the electoral system by undermining the finely wrought procedures of the Electoral College. In doing so, it alters the very essence of the compromise that precipitated the Constitution itself. Even though state legislatures have the power to bind their electors to the winner of that individual state’s popular vote, they must do so in a constitutionally permissible manner.[118] By binding a state’s electors to the winner of the national popular vote, the Compact promotes combination among the states, rather than within today’s party systems, and effectively results in a direct popular election that can be decided by as little as eleven states.[119] In doing so, the Compact fundamentally alters the Constitution’s finely wrought electoral procedures, and results in a product directly contrary to what the Framers intended the Electoral College to produce. When viewing the Compact against the background of the historical evidence from both the Convention and the subsequent ratification debates, the evidence of the Framers’ intent strongly supports this conclusion.

A. The Compact Promotes Combination Among the States, Running Counter to the Deeply Federalist Product Intended by the Framers

Although it pays lip service to prior delineations of state authority, the Compact fundamentally alters the product the Framers intended in the design of the Electoral College because it requires combination among the states. For the Compact to succeed in its explicit goal to create a direct national popular election,[120] the compacting states must agree to ignore the interests of their own state and voters. These states must abdicate their responsibility to actively participate in the electoral process and surrender complete and total control of their electors to the control of the national polity, thereby voting for whomever secures a plurality of votes in the national popular vote total, even if that candidate did not win the popular vote in that individual state. This is the epitome of combination among the states: under the Compact’s terms, electors will look not at their own state’s distinct interests, nor the will of their own state’s voters, but instead to the national polity to decide who to vote for, even if their state dramatically rejected that candidate. This alternative design flagrantly contradicts the will of the Framers, who—unlike the proponents of the NPVIC—pushed through their Constitution with a broad base of support that the NPVIC’s drafters would envy. At the Convention, the Framers rejected both a direct popular election and election by the national legislature in favor of an electoral system that reflects the overall federalism-focused compromise essential to achieving the final constitutional framework. Thus, the Compact’s requirement of combination is constitutionally troublesome as it produces precisely the product and precisely the type of executive the Framers explicitly and deliberately sought to avoid.

The Compact, by focusing strictly on the means to justify the ends—in sharp contrast to the Framers, who valued product over process[121]—is directly contrary to the Framers’ intentions and, had it been proposed at the Convention, would most likely have been rejected nearly unanimously. The Framers deliberately crafted an electoral system that would allow states, especially small states, to exert influence on the election of the executive; after all, a foundation of the entire constitutional structure, and one of the political safeguards of federalism entrenched in the Constitution, is the disproportionate influence small states have on the federal level.[122]  As has been discussed at length above, the Framers envisioned that states, through their electors, would cast electoral votes for the candidate best suited to their state interests on the same day through secret ballot, thus ensuring a national executive elected without combination of foreign or domestic powers: one who would be responsive to all states and not just the densely populated cities.[123] Instead, the Compact not only allows for but in fact requires electors to disregard their state’s interests, binding them to the will of a national plurality. This is counter to the Framers’ intent because, as with the structure of the national legislature, the evidence from the Convention shows the Framers wanted each individual state to have influence and input on the federal government as a safeguard of federalism—this time through electors of their own who would represent the distinct views of their individual state.[124]

Some may argue that combination among the states was not one of the Framers’ central fears—or that even if it was, it is no longer relevant today because of the rise of frequently regional political parties.[125] However, the historical context of the adoption of the Constitution demonstrates why fear of combination was a strong motivation at the Framing and remains so today. Even within the modern party system, presidential elections are run at the state level. State parties organize their state’s slate of electors through the primary system, and when the time comes to vote in the Electoral College, most electors—out of either trust or compliance with state law—vote as a unit in accordance with the outcome of the popular vote within their own state—paying no regard to the popular vote of voters beyond their own state’s borders.[126] If this political party action is combination, it is expressly within the state, whereas the Framers were worried about long-term combination among the states that surrendered sovereignty to some authority besides the United States. These disfavored combinations resembled diplomatic alliances, as opposed to today’s working arrangements. The Framers’ Constitution incentivizes cooperation, but not combination. If state preferences frequently do not change, it is merely an incidental outgrowth of states making rational decisions on their own, based on their own local priorities and challenges. Therefore, even though political parties and the political machine did not exist at the Founding,[127] the combination argument still governs because the Framers were worried about combination among the states, not within a state.

It is axiomatic that the Framers crafted the Constitution in light of their experience under the Articles of Confederation, which threatened to pit the nation into divided and competing rivals through interstate alliances.[128] They hoped to eliminate any possible domestic combination by crafting intricate electoral procedures. It was the threat of interstate alliances, not intrastate alliances, that was a major impetus for the Convention and the ensuing procedural safeguards drafted into the Electoral College. Thus, there is a fundamental flaw in the argument that the Electoral College’s role in preventing combination is somehow anachronistic.

Furthermore, even if today’s political party context has given rise to genuine combination, the Compact, as even its supporters admit,[129] takes combination to an entirely new level and still attempts to convert the Electoral College into a direct national popular election.[130] There is no question that this is unconstitutional and completely against the Framers’ intent, or for that matter any conceivable public meaning of the Constitution. The Framers discussed this proposal twice and almost unanimously struck it down each time as troublesome because it would not produce the “good government” they sought to achieve.[131] Thus, it is clear that the Compact would then be a fundamental alteration of the electoral procedures beyond a state’s traditional powers.

B. The Compact Exceeds Traditional State Electoral Powers, As Outlined by Supreme Court Precedent

The authority exercised under the Compact is beyond a state’s power to alter the electoral process because it fundamentally alters the procedures and result intended by the Framers, similar to the state constitutional provision struck down in Term Limits. Moreover, unlike the Compact, the actions upheld in McPherson and Ray dealt with the allocation and appointment of electors, powers traditionally within a state’s authority as confirmed through historical practice.

As in Term Limits, when the state legislatures passed legislation imposing term limits on members of the U.S. House and Senate. The Court there struck down the legislation because it resulted in a “fundamental change in the constitutional framework” that the Framers had carefully prescribed.[132] Because the Compact achieves the same fundamental change in the carefully prescribed electoral process as in U.S. Term Limits, it too must be effectuated using Article V and not state law.

The Compact runs counter to the holdings in McPherson and Ray because in those cases, even when affirming the state alterations at issue, the Court identified consistent historical practice and traditional state powers. The Supreme Court in McPherson upheld electoral reform because Michigan’s proposal to shift allocation of electoral votes to a district method was consistent with the Framers’ intentions, as shown through identical historical practice in the Founding era.[133] Here, the movement for a Compact, while retaining the façade of the traditional Electoral College framework, explicitly moves to contradict the Framers’ intent while also upending the compromise that was necessary for an agreement to be reached and a nation to formed. The Framers intended for a federalism-based electoral process made of states as unique constituent parts of the nation, where electors would cast their votes individually, on behalf of their state’s distinct interests, for one federal Executive who necessarily must be viewed favorably by enough of the states across the nation so as to garner the support of a majority of the distinct constituencies that make up the republic.[134] Thus, the Compact is inconsistent with historical practice because it envisions the polity as one unified constituency with essentially identical interests in all relevant respects, disregards our federal structure, and results in an executive who is unrepresentative of all but the densely populated urban areas of the country, thereby exercising power beyond a state’s constitutional grant of authority.

C. The Framework for Courts to Prevent the Compact from Taking Effect

Should a federal court be faced with litigation challenging the Compact after 270 electoral votes are pledged and the Compact takes effect, the court should strike down the Compact as unconstitutional by applying analysis similar to that applied in INS v. Chadha and Clinton v. City of New York—also known as the finely wrought standard. The Compact is the epitome of a fundamental alteration of the finely wrought electoral procedures laid out by the Framers—it promotes combination among the states and not within a state, effectively resulting in a direct popular election, both of which are results the Framers deliberately sought to avoid by prescribing detailed electoral procedures. A federal court should not take such an audacious encroachment on the Constitution lightly.

The Electoral College procedure, which “is one of the most important” and “most intricate provisions of the Constitution,”[135] is as “finely wrought and exhaustively considered”[136] as the constitutional procedure at issue in Chadha and City of New York—the Bicameralism and Presentment Clauses—and thus must be defended by the courts with equal skepticism to any attempted modifications. As this Note demonstrates, the Framers paid a great deal of attention at the Convention and closely detailed the procedures in both the Bicameralism and Presentment Clause and the electoral provisions. Additionally, the Bicameralism and Presentment Clause ensures the proper deliberation on bills as well as separation of powers.[137] The Electoral College procedures ensure the proper product is produced such that the Executive represents each individual state’s interests and not just the interests of the national legislature or the densely populated areas of the nation. Thus, both procedures are important structural pillars to the federal system and must be scrupulously followed.

For these reasons, if the Compact receives 270 pledged electoral votes and is set to take effect, courts must follow the Constitution and apply the standard set forth in Chadha and City of New York to strike down the Compact, thereby preventing the Compact from fundamentally altering the Electoral College, “a finely wrought and exhaustively considered”[138] provision of the Constitution. Courts faced with such a challenge, by applying the finely wrought analysis, should find that, because the Compact attempts to impose a “fundamental change in the constitutional framework,”[139] it must not be effectuated by a state legislature but instead by formal Article V amendment procedure. “To argue otherwise is to suggest that the Framers spent significant time and energy debating and crafting Clauses that could be easily evaded.”[140]

Conclusion

The National Popular Vote Interstate Compact is a threat to our electoral system that must be stopped. Although it will not become an active threat until the compacting states possess 270 electoral votes, at that point the judiciary should prevent the supporters of this movement from exerting their influence over the rest of the states through this de facto amendment to the Constitution. States cannot be allowed to bind electors as the Compact envisions, even though they have the general authority to bind electors. Article II and the Twelfth Amendment contain finely wrought electoral procedures that were given exhaustive consideration by the Framers, and these procedures can only be altered by Article V procedure—the nature of which was also something the Framers took extremely seriously. Instead, the Compact promotes combination among the states and effectively creates a direct popular election, each of which were results considered and strongly disfavored by the Framers. In fact, the Framers sought to prevent such results from happening at all costs. Instead, they aimed to produce a more desirable product in a national executive who would represent the interests of states, both large and small, from across the nation. The broader federalism-based compromise, which allowed for the Constitution to be adopted, hinged on agreements like the Electoral College, and supporters of the Compact seek to scrap this compromise in direct opposition to what the Framers deliberately intended. A constitutional crisis lurks in the shadows of future presidential elections, and the potential power to avert it lies in the hands of the judiciary.

[*] J.D. with high honors 2018, George Washington University Law School. B.A. 2015, University of Notre Dame. The author would like to thank Bradford Clark, William Cranch Research Professor of Law at the George Washington University Law School, and the Harvard Journal on Legislation staff, particularly Winston Shi, for their helpful comments during the developmental stages and editing process of this Note.

[1] Derek T. Muller, Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237, 1292 (2012).

[2] David Von Pein’s JFK Channel, ELECTION NIGHT 1960 (NBC–TV COVERAGE), YouTube (Aug. 20, 2013), http://www.youtube.com/watch?v=XtOuIqHi8ns [https://perma.cc/L3SW-ENJZ].

[3] William Whitworth, An Accident of Casting, The New Yorker, Aug. 3, 1968, at 34, 34.

[4] See 1960 Presidential Election Returns, John F. Kennedy Presidential Library and Museum (last visited Apr. 11, 2017), http://www.jfklibrary.org/Asset-Viewer/ipKAdxZ-bECxT2SMX3VolA.aspx [https://perma.cc/KQW7-XJXG]. (counting 34,226,731 popular votes for Kennedy to 34,108,157 votes for Nixon).

[5] Id.

[6] This is a term of art used repeatedly in this Note, and it is derived from two Supreme Court cases in particular: INS v. Chadha, 462 U.S. 919, 951 (1983) and Clinton v. City of New York, 524 U.S. 417, 439 (1998). Although the Supreme Court’s concept of “finely wrought” will be addressed in greater detail later, it is important for the reader to understand at the outset the importance of the standard the Court required when it found the provisions were “finely wrought.” “Finely wrought” are Constitutional provisions that were “the product of the great debates and compromises that produced the Constitution itself,” and thus were specifically detailed in the Constitution. City of New York, 524 U.S. at 439. Fundamental alterations of such closely detailed, finely wrought provisions, the Court found, must be made through the Article V amendment process, not legislation. Id. at 449.

[8] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837–38 (1995).

[9] Status of National Popular Vote Bill in Each State, National Popular Vote, http://www.nationalpopularvote.com/state-status [https://perma.cc/BH58-CRWJ] (last visited July 22, 2018).

[10] See Akhil Reed Amar and Vikram David Amar, How to Achieve Direct National Election of the President without Amending the Constitution, FindLaw (Dec. 28, 2001), http://supreme.findlaw.com/legal-commentary/how-to-achieve-direct-national-election-of-the-president-without-amending-the-constitution.html [https://perma.cc/HGJ6-LZSW].

[11] See discussion infra Sections I.A and I.B. (discussion on combination among the states).

[12] See discussion infra Section I.C. (discussion on federalist principles underlying the Electoral College).

[13] This Note is not a policy paper arguing for or against the Electoral College, or for or against direct popular election of the President. This Note simply focuses on the constitutional implications of reform sought through the channel of the Compact, as opposed to the Article V process. Although this Note will touch upon arguments previously advanced for and against the Compact, it is not a critique of them because the thesis of this paper is that even if all the current arguments for the Compact are right, the Compact would still be unconstitutional.

Currently existing arguments against the Compact include: it violates the Article IV Guarantee Clause; violates the Article I, Section 10 Compact Clause; and would violate the Constitution if Congress gives the Compact approval because they cannot do through Compact Clause approval what they cannot do through legislation. For a broader discussion of these other arguments against the Compact, see Tara Ross & Robert M. Hardaway, The Compact Clause and National Popular Vote: Implications for the “Federal Structure,” 44 N.M.L. Rev. 383, 422–432 (2014).

[14] See Norman R. Williams, 2012 BYU L. Rev. 1523, 1539–1559 (providing a more in-depth description of the evolution of the Electoral College at the Federal Convention).

[15] See infra Sections I.A and I.B.

[16] See Amar, supra note 10.

[17] See Robert M. Hardaway, The Electoral College and the Constitution: The Case for Preserving Federalism 69–70 (1994).

[18] See id.

[19] See id.

[20] See id. at 70–71 (noting that at that time, the British were also undermining the Confederation Congress’ trade talks in the hope that the Americans would fall apart economically and rejoin the Empire).

[21] See id. at 70 (quoting George Washington’s apt description: “Thirteen sovereignties pulling against each other.”).

[22] See Williams, supra note 14, at 1539–59.

[23] See Letter from James Madison to Henry Lee (Jan. 14, 1825), in 9 The Writings of James Madison 215, 217 (Gaillard Hunt ed., 1910).

[24] See generally Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 543–44 (1954) (“They preserved the states as separate sources of authority and organs of administration—a point on which they hardly had a choice. They gave the states a role of great importance in the composition and selection of the central government. They undertook to formulate a distribution of authority between the nation and the states, in terms which gave some scope at least to legal processes for its enforcement.”).

[25] For a discussion on changes in the law that have somewhat depleted the original political safeguards of federalism, see Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1367–72 (2001).

[26] See infra note 28 (general overview of the proposals and votes at the Convention).

[27] James Madison, Notes on the Constitutional Convention, in 1 The Records of the Federal Convention of 1787, at 81 (Max Farrand ed., 1911) (“Farrand”).

[28] The proposals and votes at the Federal Convention that led to the adoption of the Electoral College demonstrate that the mode of selection of the national executive was one of the Framers’ most hotly contested and highly considered decisions. See infra note 34 and accompanying text and table.

[29] See James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 22 (nine states voted against direct popular election on July 17, 1787); James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 402 (another nine states voted against direct popular election on August 24, 1787).

[30] Id. at 29–31 (remarks of Gouverneur Morris).

[31] See id.

[32] See supra note 29.

[33] See supra notes 28–29; see also infra note 34 and accompanying text and table.

[34] James Madison, Notes on the Constitutional Convention, in 2 Farrand, supra note 27, at 497–98 (September 4, 1787, proposal from Committee of Eleven); id. at 525–26 (September 6, 1787, vote on the Committee of Eleven’s proposal).

[35] See infra Section I.C (discussion on the focus of the Framers).

[36] See Wechsler, supra note 24, at 553–57.

[37] U.S. Const. art. II, § 1 (emphases added to the portions most important to this discussion).

[38] U.S. Const. amend. XII (emphases added to the portions most important to this discussion). Although some of the language in the Twelfth Amendment is different than the original text of the Constitution, for all purposes relevant to this discussion the Twelfth Amendment mirrors the text of U.S. Const. art. II, § 1.

[39] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462 (“The election is directed to be made in all the different States on the same day, and the Electors are permitted to make but one attempt at a choice. These provisions of the Constitution were adopted for the express purpose of preventing combinations . . . .”).

[40] See id.

[41] Federalist No. 68, at 190 (Alexander Hamilton) (Michael A. Genovese ed., 2009).

[42] Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 386 (“the vote should be taken in such manner, and on the same day, as to make it impossible for the different States to know who the Electors are for, or for improper domestic, or, what is of much more consequence, foreign influence and gold to interfere . . . .”); see also Rufus King in the United States Senate (Mar. 20, 1816), 3 Farrand, supra note 27, at 422 (“[T]he men selected by the people from their own body would give their votes in such a manner as that no opportunity would be afforded for a combination, to change the freedom and popular character which naturally belonged to the electoral bodies.”); Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 461 (“[B]y apportioning, limiting, and confining the Electors within their respective states, and by the guarded manner of giving and transmitting the ballots of the Electors to the Seat of Government, that intrigue, combination, and corruption, would be effectively shut out, and a free and pure election of the President of the United States made perpetual.”).

[43] The Framers also extended this concern about improper combination to contingent House elections, see U.S. Const. amend. XII., when the Electoral College produced no victor. As Charles Pinckney explained with respect to the Constitutional safeguards for the contingent House election, where the members of Congress could be swayed be improper interests, both foreign and domestic:

the question then arose, how was this election to be guarded to prevent, as far as human prudence could, improper domestic combinations, or, what is infinitely worse, foreign interference? . . . It is expected and required by the Constitution, that the votes shall be secret and unknown, until opened in the presence of both Houses.

Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389–90. The Framers understood this possibility, and addressed it in the Constitution through ballot secrecy and the temporal immediacy of the contingent election, id. at 390:

Wisely foreseeing this, the Constitution expressly orders that the Electors shall vote by ballot; and we all know, that to vote by ballot is to vote secretly; that the votes shall be sealed up, and not opened until the day appointed by law, and that if no election has been made by the Electors, an immediate one shall take place by the House of Representatives . . . that they [Congress] shall not have authority to adjourn for one moment, but shall instantly and on the spot, in case of no election by the Electors, proceed to the choice of a President, and not separate until it is determined.

[44] See supra note 43.

[45] U.S. Const. art. II, § 1; U.S. Const. amend. XII.

[46] See supra note 43 (excerpted Pinckney text).

[47] See id.

[48] See id.

[49] Immediately is defined as: “Without the intervention of any other cause or event; opposed to mediately.” Immediately, Webster’s Dictionary (1st ed. 1828). Conversely, mediately is defined as “By means or by a secondary cause, acting between the first cause and the effect.” Mediately, Webster’s Dictionary (1st ed. 1828).

[50] Statement of Charles Pinckney, present at the Federal Convention:

The best and most generally admired expounders of the English language, give this explanation of the word immediately; they say it means “instantly”– at the present time– without delay. This is the meaning the framers of the Constitution intended to give it, and it admits of no other. The plain, express, literal direction of that instrument therefore is, that in case of no election, the House of Representatives, voting by States, are immediately, that is instantly, and on the spot, without leaving the House in which they are then assembled, and without adjournment, to choose . . . who is to be the Executive.”

Charles Pinckney in the United States Senate (Mar. 28, 1800), 3 Farrand, supra note 27, at 389.

[51] See The Federalist No. 45, at 98 (James Madison) (Michael A. Genovese ed., 2009) (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. . . . Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment . . . .”).

[52] Wechsler, supra note 24, at 543.

[53] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462.

[54] Over 700 proposals to reform or eliminate the Electoral College have been introduced in Congress. Thomas H. Neale, Cong. Research Serv., R43823, The National Popular Vote Initiative: Direct Election of the President by Interstate Compact 1 (Dec. 12, 2014). Of those 700, over 100 proposed direct election of the President as the alternative. Hardaway, supra note 17, at 156.

[55] See Gary L. Gregg II, The Origins and Meaning of the Electoral College, in Securing Democracy: Why We Have an Electoral College, at 15–16 (Gary L. Gregg II ed., 2001).

[56] The Federalist No. 68 (Alexander Hamilton), at 191 (Michael A. Genovese ed., 2009).

[57] See Gregg, supra note 55, at 15–16.

[58] See Bush v. Gore, 531 U.S. 98, 104 (2000) (finding that state legislature have “plenary” power to choose the manner of elector appointment because an “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”) (citing McPherson v. Blacker, 146 U.S. 1, 35 (1892))

[59] This Note is not meant to argue for or against faithless electors, as this could be an entire law review article in and of itself. Instead, this Note accepts this conclusion—that absent state regulation, electors could be faithless—as a necessary premise, because the Compact requires states to bind their electors. For an example of an argument for faithless electors, see Stephen M. Sheppard, A Case for the Electoral College and for Its Faithless Elector, 2015 Wisc. L. Rev. Online 1, 7–11 (2015).

[60] The Federalist No. 68 (Alexander Hamilton), at 189 (Michael A. Genovese ed., 2009).

[61] In fact, many states currently have laws binding their electors to the winner of that individual state’s popular vote.

See State Control of Electors, FairVote, (last visited Apr. 11, 2017), http://archive.fairvote.org/?page=967 [https://perma.cc/4CR7-USE7]. See generally Ray v. Blair, 343 U.S. 214, 230–31 (1952), infra note 99–102 and associated text (confirming Alabama’s authority—at least for presidential primaries—to, through the Alabama Democratic Party, force electors to pledge to vote for the party’s nominees before being certified for the Democratic National Convention).

[62] See generally Wechsler, supra note 24; Clark, supra note 25.

[63] The Federalist No. 45 (James Madison), at 98 (Michael A. Genovese ed., 2009). (“The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the state legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it.”).

[64] For a highlight of the movement, see George H. Haynes, The Election Of Senators 133–48 (1906) (detailing past examples where voters brought their weight to bear on senatorial elections through states).

[65] U.S. Const. art. I, § 3, cl. 1 (previously reading “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . .”).

[66] See Haynes, supra note 64.

[67] U.S. Const. amend. XVII.

[68] Rufus King in the United States Senate (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Tara Ross, Legal and Logistical Ramifications of the National Popular Vote Plan, 11 Engage 37, 37–43 (Sept. 2010).

[69] See, e.g., Tom Hamburger and Joni James, Electoral College Picks Bush, Faces an Uncertain Future, Wall St. J., Dec. 19, 2000, http://www.wsj.com/articles/SB977159215541437555 [https://perma.cc/44RV-8T8K] (detailing proposal of Sen. Dick Durbin and Rep. Ray LaHood); John Harwood, Fixing the Electoral System: Lessons From States Hold Hope for Reform, Wall St. J., Dec. 22, 2000, http://www.wsj.com/articles/SB97743802252037601 [https://perma.cc/5TAH-AB92]. But see Editorial, The Case for the Electoral College, N.Y. Times, Dec. 19, 2000, http://www.nytimes.com/2000/12/19/opinion/the-case-for-the-electoral-college.html [https://perma.cc/L789-454W]. Electoral reform fervor again reached fever pitch following the 2016 election, which saw President Donald J. Trump win the election with a deficit in the national popular vote of nearly three million votes, see, e.g., Editorial, Time to End the Electoral College, N.Y. Times, Dec. 19, 2016, https://www.nytimes.com/2016/12/19/opinion/time-to-end-the-electoral-college.html [https://perma.cc/8V82-EPPW], but it is still too early to tell whether support of the Compact will grow in enough states to put the Compact into effect, see, e.g., Jonathan Mahler and Steve Eder, The Electoral College Is Hated by Many. So Why Does It Endure?, N.Y. Times, Nov. 10, 2016, http://www.nytimes.com/2016/11/11/us/politics/the-electoral-college-is-hated-by-many-so-why-does-it-endure.html [https://perma.cc/DYD9-2XEZ].

[70] See discussion supra note 54; Williams, supra note 14, at 1535.

[71] The Compact was first suggested by Robert Bennett in 2000, who elaborated on his proposal in 2006, see Robert Bennett, Taming the Electoral College (2006). The Amar brothers, both law professors, are the other intellectual founders of this idea. See generally Amar & Amar, supra note 10.

[72] For the text of the Compact, see National Popular Vote, supra note 9.

[73] See id.

[74] These states are: California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington, in addition to the District of Columbia. National Popular Vote, supra note 9.

[75] See Neale, supra note 54, at 9.

[76] See National Popular Vote, supra note 9.

[77] For reasons in support of the Compact, see Bennett, supra note 71. For an article highlighting the failings of the Compact, see Williams, supra note 14, at 1540–62.

[78] See Explanation, National Popular Vote, supra note 9.

[79] See National Popular Vote, supra note 9. Such “misfires” occurred in the 2000 election of President George W. Bush and the 2016 election of President Donald J. Trump, leading to calls to abandon the Electoral College in some way. See supra note 69 (citing articles on the 2000 and 2016 election reactions).

[80] For a more in depth discussion of arguments in support of the Compact, see John R. Koza et al., Every Vote Equal: A State-based Plan for Electing the President by National Popular Vote (3d ed. 2011).

[81] See Williams, supra note 14, at 1573.

[82] See supra Section I.C. (on the Framers’ emphasis on product over process)

[83] For a discussion of states’ nature as distinct political communities, which then necessitates that presidential candidates be supported for national, not regional, reasons, see James R. Stoner Jr., Federalism, the States, and the Electoral College, in Securing Democracy: Why We Have an Electoral College, supra note 55, at 43–54.

[84] See Hans von Spakovsky, Destroying the Electoral College: The Anti–Federalist National Popular Vote Scheme, The Heritage Foundation (October 27, 2011), http://www.heritage.org/election-integrity/report/destroying-the-electoral-college-the-anti-federalist-national-popular [https://perma.cc/MDX8-TWJY]; Williams, supra note 14, at 1578–79.

[85] Robert M. Alexander, Presidential Electors and the Electoral College: An Examination of Lobbying, Wavering Electors, and Campaigns for Faithless Votes 171 (2012) (describing interview with elector, Apr. 16, 2004).

[86] For the “plenary” descriptor, see Bush v. Gore, 531 U.S. 98, 104 (2000) (describing the state’s power to regulate elections in comparison to the individual voter). See also U.S. Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 472–73 (1978) (outlining three factors for evaluating whether a multistate compact violates federalism: (1) whether the compact gives a member state new political power; (2) whether the compact delegates sovereign power; and (3) whether the compact allows states to withdraw at any time); Ross & Hardaway, supra note 13, at 422–29 (arguing that the NPVIC implicates the first and third U.S. Steel factors).

[87] For a discussion of numerous critiques of the Compact, see Ian J. Drake, Federal Roadblocks: The Constitution and the National Popular Vote Interstate Compact, 44 Publius: The Journal of Federalism 681, 681–82, 692–93, which argues that approval of an interstate compact “transforms an interstate compact within [the Compact] Clause into a law of the United States,” and thus Congress can only approve an interstate compact if it already possesses the power to enact the agreement on its own initiative under the Constitution.). And with regard to the Electoral College, Congress is only allowed to set the date and time of the initial vote. See McPherson v. Blacker, 146 U.S. 1, 35 (1892).

[88] 514 U.S. 779 (1996).

[89] See id. at 831.

[90] See id. at 783.

[91] Id. at 831.

[92] See id. at 832 (“Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same result . . . .”).

[93] Id. at 837.

[94] 146 U.S. 1 (1892); see also id. at 26 (emphasizing that district-based election was still “the expression of the voice of the state”)

[95] See id. at 24.

[96] See id. at 26 (noting that the validity of district-based apportionment, once “usual[],” “has never been doubted”).

[97] Id. at 36.

[98] See id. at 35.

[99] 343 U.S. 214 (1952).

[100] See id. at 214–15.

[101] See id. at 215.

[102] See id. at 227–30.

[103] See, e.g., U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1996); Clinton v. City of New York, 524 U.S. 417, 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).

[104] See City of New York, 524 U.S. 417, 439; Chadha, 462 U.S. at 951.

[105] Chadha, 462 U.S. at 952.

[106] See id. at 919.

[107] See id. at 923.

[108] See id. at 959.

[109] See id. at 946–51 (citing, 1 Farrand, supra note 27, at 99–104 (debate concerning override of Presidential veto); 1 Farrand, supra note 27, at 176–77 (debate concerning election of the President); 1 Farrand, supra note 27, at 484–91 (debate concerning equal allotment of Senators); 1 Farrand, supra note 27, at 254 (speech of James Wilson); 2 Farrand, supra note 27, at 301–02 (speech of James Madison); The Federalist Nos. 22 (Alexander Hamilton); 51 (James Madison), 62 (James Madison), 73 (Alexander Hamilton).

[110] Id. at 951.

[111] Id.

[112] Id. at 958–59.

[113] Clinton v. City of New York, 524 U.S. 417, 421 (1998).

[114] See id. at 421.

[115] See id. at 439–40.

[116] Id. at 449.

[117] INS v. Chadha, 462 U.S. 919, 959 (1983).

[118] See supra Section I.C.

[119] See Amar, supra note 10.

[120] See Explanation, National Popular Vote, supra note 9.

[121] See supra Section I.C.

[122] See supra notes 22–24 and accompanying text for a discussion on the disproportionate influence of small states.

[123] See supra Section I.C.

[124] See id.

[125] For an argument on how the rise of political parties, which were not in existence at the Founding, intrudes upon traditional federalism, see James A. Gardner, The Myth of State Autonomy: Federalism, Political Parties, and the National Colonization of State Politics, 29 J.L. & Pol. 1, 68 (2013).

[126] See supra note 59 (for a discussion on elector voting discretion, especially faithless electors).

[127] See supra note 125.

[128] See supra notes 17–25 and accompanying text (discussion of the historical context pre–Convention, specifically the commercial alliances).

[129] See Explanation, National Popular Vote, supra note 9.

[130] While it is beyond the scope of this Note to argue for or against a general direct popular vote as a matter of policy, whether achieved through the Compact or constitutional amendment, there are a few legal issues that such a manner of election could present. A direct popular election could implicate the Guarantee Clause of Article IV, Section 4, which guarantees a “Republican Form of Government.” See U.S. Const. art. IV, § 4. Additionally, because of varying voter qualifications and voting systems throughout the states, a direct popular election could violate the Equal Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV. For a broader discussion of these other arguments against the Compact, see Ross & Hardaway, supra note 13, at 422–30.

Most relevant to this Note’s discussion, a direct popular vote would establish what even the Framers, when they addressed the proposal just twice and struck it down with near unanimous support both times, found to be a troubling mode of selection of the executive. See supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive, as seen by the 9-1 and 9-2 votes rejecting it).

[131] See supra Section I.C; supra note 29 and accompanying text (noting that direct popular vote was the least favored mode of selection of the executive); supra note 28 (detailing the back and forth debate at the Convention on the manner of selection of the executive).

[132] See U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).

[133] See McPherson v. Blacker, 146 U.S. 1, 26 (1892).

[134] See Gregg, supra note 55, at 15–16; supra Section I.C.

[135] Rufus King in the Senate of the United States (Mar. 18, 1824), 3 Farrand, supra note 27, at 462. In further support of this argument, see generally Ross & Hardaway, supra note 13, at 430; Ross, supra note 68.

[136] See Clinton v. City of New York, 524 U.S. 439 (1998); INS v. Chadha, 462 U.S. 919, 951 (1983).

[137] Chadha, 462 U.S. at 946, 959.

[138] See; id. at 951; City of New York, 524 U.S. at 439.

[139] U.S. Term Limits v. Thornton, 514 U.S. 779, 837 (1996).

[140] Id. at 831.

Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

Nila Bala[*]

In 2016, Connecticut was lauded for becoming the first state to pass legislation allowing for an animal advocate to be appointed in animal cruelty cases.^[1] The legislation, called “Desmond’s Law,” was named for a boxer-pit bull mix that was abused and strangled to death by Alex Wullaert in Branford, Connecticut.^[2] Desmond’s body was found in a trash bag in the woods, emaciated, bruised, and starved.[3] Wullaert received accelerated rehabilitation, which meant that his charges were dismissed and his record was wiped clean.^[4] In response to Wullaert’s sentence, animal activists, calling themselves “Desmond’s Army,” rallied for animals to have a voice in court.[5]

News outlets have reported that Connecticut’s new law is similar to laws that appoint attorneys for the children and the infirm.^[6] National Public Radio, for example, expressed that Connecticut is “the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victims’ or children’s advocates.”^[7] Similarly, The New York Times described the law appointing “advocates for dogs and cats” as part of “a rising movement in the criminal justice system” that “has placed an emphasis on giving more of a voice to and adding support for crime victims,” such as “in cases involving children and the infirm.”^[8]

However, Desmond’s Law differs significantly from the laws that appoint advocates for children and vulnerable victims. Unlike those laws, advocates under Desmond’s Law do not represent the animal.^[9] According to the statute’s text, the advocate, who is a volunteer attorney or supervised law student, may “present information or recommendations to the court pertinent to determinations that relate to the interests of justice.”[10]

This Article examines why lawmakers chose to word the statute to protect the “interests of justice” rather than the animal’s interests and will argue that it was motivated by the historical underpinnings of the animal rights movement. While Desmond’s Law is an important first step in protecting animal welfare, this Article also explores the real drawbacks that the wording will present in animal cruelty cases.

The “Interests of Justice”: Already a Term of Art

There is already an advocate in the courtroom that represents the “interests of justice”—the prosecutor.^[11] The public prosecutor’s role is to be an impartial minister of justice, a unique role that includes an interest in judicial efficiency and governmental economy, as well as special obligations to the defendant.^[12] These interests are different from, and can even conflict with, a victim’s interests.^[13] A prosecutor may decline to prosecute a case when a victim would prefer to go forward, or vice versa. Given that prosecutors do not represent victims, victims’ rights advocates have long argued for victims to have a separate and established place in criminal procedure.^[14] Similarly, when children participate in the juvenile justice system or child welfare proceedings, an individual is appointed to represent them.^[15]

The “interests of justice” is a term of art and has defined the prosecutor’s role for decades, at home and abroad.^[16] We could say it is in the “interests of justice” to protect children’s and victims’ rights, and it is in the “interests of justice” to protect defendants’ rights. Indeed, every attorney, at some level, has an obligation to the “interests of justice.” That statement is accurate, but ultimately vague and imprecise in defining the role of various advocates in the courtroom.

Lawmakers yearned to fashion a novel advocacy position for animals in the courtroom giving a voice to the voiceless.[17] However, the wording of the statute demonstrates an underlying fear of giving animals too much of a voice. The law was opposed by both the Connecticut Veterinary Medical Association and the Connecticut Federation of Dog Clubs and Responsible Dog Owners, arguing in part that a law providing an advocate for animals in the courtroom would give animals legal standing.^[18] Perhaps in the process of acquiescing to competing interests, Desmond’s Law has been gutted of its true intent—to provide meaningful advocacy for animals’ interests, not simply the “interests of justice.”[19]

Three Ways to Frame the Animal-Human Relationship

The language of Desmond’s Law demonstrates the continuing ambivalence in framing the status of animals in the law. Historically, animals have only been protected to the extent that they provide value to human beings. A framework put forth by Professor Margit Livingston helps to explain the deliberate wording of Desmond’s Law.[20] Livingston describes three distinct views of animals’ relationships to humans, mirroring the religious and philosophical beliefs of different time periods throughout history.

Under the first view, animals’ interests are entirely subordinate to humans’ interests. Thus, the earliest laws treated animals as purely property, and the only crimes that could be committed against animals were those that could be committed against the owner’s property—malicious mischief and trespass.^[21] A second view is that animals’ interests are intertwined with humans’ interests. Theorists of this view argued that cruelty toward animals should be prevented because it is linked to cruelty toward people.^[22] This view, at least to some extent, undergirds most modern animal cruelty laws.

Desmond’s Law, in certain aspects, reflects this second view.[23] For example, the Facebook page for the “Justice for Desmond” campaign^[24] displays a graphic image of a face that is half-dog and half-woman, being shot in the head.^[25] The banner proclaims, “Who mistreats or kills an animal can murder too. You could be the next victim.”[26] In this view, an animal’s value is derivative—that is, their value is conditioned upon their benefit to humans. Given the long-held legal status of animals as personal property, this perspective is not surprising.

There is nothing inherently wrong with wanting to protect human victims as well as animal victims. The fact that animal abuse can be an indicator for human abuse should be noted by law enforcement and used as an investigative tool when appropriate. However, a view predicated primarily on derivative value—also termed extrinsic or instrumental value—is problematic. Derivative value is conditional. If the condition changes, then logically the value can also shift or disappear. For example, if we decry animal cruelty only because it is intertwined with human cruelty, if that link is disproven, there may be little reason to protect the animal anymore. More than eighty percent of Americans nationwide acknowledge the intrinsic value of wildlife even when it does not lead to instrumental gain for humans.^[27] We are moving towards valuing animals for what they are, not just for what they can do for us.

The “interests of justice” language demonstrates the discomfort in the law over whether animals’ interests and human interests are intertwined or distinct. By subsuming the advocate’s duties under the “interests of justice,” Desmond’s Law seems to indicate some equivalency between the people’s interests—as represented by the prosecutor—and the animals’ interests. Such a view denies the possibility that animals do have distinct interests.

In contrast, Livingston’s third view presents animals as having their own interests, separate from human interests. Desmond’s Law embraces this view as well, by giving animals an advocate in the first place. If the law truly intended to protect animals only because of the value they provide people, why a separate advocate in the first place? Animal cruelty cases are often a lower priority to underfunded, overwhelmed prosecutors.^[28] But in response, lawmakers did not provide an investigator, special prosecutor, or additional funding mechanism for the prosecutor’s office; Desmond’s Law created a separate advocate.

Animals as Property, but More

Acknowledging animals as sentient beings, capable of suffering and having their own interests, does not mean we must grant animals personhood or standing to bring civil matters. Protecting animals and giving them an advocate in criminal cases simply means acknowledging, as courts have already expressed, that “[pets occupy] a special place somewhere in between a person and a piece of personal property,”^[29] and that the property label “inadequately and inaccurately describes the relationship between a human and a dog.”^[30] Animals are not like tables or land. They possess the ability to suffer. They are beloved family members. Dogs and cats—the particular animals protected by Desmond’s Law—feel, think, and demonstrate empathy.^[31]

Even if we were to keep the “property” label to describe animals, it does not follow that owners can do whatever they wish with their animals. In many domains, property rights of owners are regulated. Cass Sunstein analogizes that: “You own your house, but you are probably not allowed to burn it down or blow it up, or to use it as a concert hall. You own your stereo, but if you have nearby neighbors you cannot play music as loud as you want.”^[32] Legal ownership does not mean people can do whatever they wish with animals, and rules can still be enacted to prevent gratuitous suffering.

Perhaps it is the semantics of property that are preventing us as a society from adequately protecting the welfare of animals.^[33] However, courts can, and have, dealt with these sorts of issues before. The Oregon Supreme Court, in a trilogy of cases, defined a jurisprudence that allows animals to be considered property but does not force the conclusion that they should be treated as non-sentient objects.[34] Acknowledging that animals have an interest in being free from beatings or starvation does not require granting animals “human” rights, like the right to vote.

It is also possible that the imprecise wording of Desmond’s Law originates from uneasiness towards bestowing legal interests to entities that cannot voice their own needs. Child advocacy has struggled with this conundrum for as long as family and juvenile courts have existed. However, despite difficulties in discerning the interests of an infant or a mentally disabled individual, the law has created an advocate for these parties and delineated a clear role for them.[35] Given other analogous situations in the law, where the law has accommodated advocacy for the voiceless, the law can, and should, accommodate an animal’s interests.

Drawbacks of Imprecise Language

Appointing yet another advocate for the “interests of justice” is statutorily imprecise and provides no guidance to animal advocates on whether their position should be distinct from the prosecutor. Without defining animals’ interests as distinct from prosecutors’, problems can—and in animal cruelty cases more broadly, already have—manifested. For example, animal victims of cruelty are routinely seized and kept as evidence pending a criminal conviction, which can be for months or even years, in the case of a felony charge.[36] Animals are often kept in sub-standard conditions and environments that challenge even healthy animals, and are kept from being fostered or adopted.[37] A prosecutor and Desmond’s Law advocate may both be representing the “interests of justice,” but clearly, their interests would differ in this case.

The prosecutor and animal advocate would also likely disagree in dogfighting cases, where animals seized are often declared irredeemable by the state. Dogs seized in dogfighting cases are very expensive to house and care for as they must be individually housed by those trained in caring for fighting dogs.[38] In most instances, the state—in the “interests of justice”—would find it is practical and humane to euthanize them.[39] An advocate can make all the difference and can fight for a very different outcome for the dogs involved. In the Michael Vick dogfighting case, the United States District Court, in an unprecedented move, appointed Rebecca Huss as the guardian/special master to advise the Court regarding the final disposition of the remaining forty-eight seized dogs.[40] Because of her recommendations, many of the dogs were dispersed to rescue organizations and were rehabilitated and adopted.[41]

As of May 2018, there had thus far been sixteen cases where Desmond’s Law advocates had been appointed, and reports were positive.[42] However, lawmakers would be well-served to clarify the advocate’s position in Desmond’s Law, rather than shy away from providing a true advocate for animals’ interests because of an unfound fear of rights burgeoning out of control. The rule of law demands that, as much as is possible—given the inherent constraints of language—actors should know in advance what the law demands of them and what they can expect from court proceedings. Utilizing more precise language to describe the advocate’s role will only make a good idea—having an animal advocate in the courtroom—even better.

Conclusion

As a society, we are finally moving closer to a model that acknowledges the sentience, empathy, and value that animals possess in and of themselves. Desmond’s Law is a much-needed first step. As it is the first law of its type, it is serving as a model for other states.[43] Let it truly be a model. Connecticut lawmakers owe it to their constituents, to the different parties in the courtroom, and most of all, to animals like Desmond, to craft a clear, precise law, one that does not shy away from acknowledging animals’ interests as distinct and real.

[*] Associate Director of Criminal Justice Policy, R Street Institute. J.D. 2012, Yale Law School; B.A. 2008, Stanford University. The views expressed in this article are solely those of the author and not of R Street Institute. Special thanks to David Rosengard, Staff Attorney at the Animal Legal Defense Fund’s Criminal Justice Project, for his assistance.

^[1] To be clear, it is the news outlets’ characterization of the law, that the advocate represents the animal. In reality, the law makes clear that the advocate does not represent the animals’ interests specifically. See Rick Rojas, Abused Dogs and Cats Now Have a (Human) Voice in Connecticut Courts, N.Y. Times, Aug. 28, 2017,  https://www.nytimes.com/2017/08/27/nyregion/animal-abuse-connecticut-court-advocates.html?_r=0 [https://perma.cc/3KEP-6ANS]; Laurel Wamsley, In A First, Connecticut’s Animals Get Advocates In The Courtroom, Nat’l Pub. Radio (June 2, 2017, 5:46 PM), https://www.npr.org/sections/thetwo-way/2017/06/02/531283235/in-a-first-connecticuts-animals-get-advocates-in-the-courtroom [https://perma.cc/T7N6-BESX]; J.B. Wogan, In Connecticut, Abused Animals May Get Their Day in Court, Governing (May 31, 2016), http://www.governing.com/topics/public-justice-safety/gov-connecticut-courts-animal-advocates.html [https://perma.cc/QNY5-4CVF].

^[2] Pat Eaton-Robb, In One State, Abused Animals Get a Legal Voice in Court, U.S. News (June 2, 2017, 9:11 AM), https://www.usnews.com/news/best-states/connecticut/articles/2017-06-02/state-experiments-with-court-advocates-for-abused-animals [https://perma.cc/7FXA-7UDB].

[3] Id.

^[4] Id.

[5] Rojas, supra note 1.

^[6] See supra note 1.

^[7] Wamsley, supra note 1.

^[8] Rojas, supra note 1.

^[9] 2016 Conn Acts § 16-30 (Reg. Sess.) (available at https://www.cga.ct.gov/2016/ACT/pa/2016PA-00030-R00HB-05344-PA.htm) [https://perma.cc/Z2GK-S9YR].

[10] Id.

^[11] Berger v. United States, 295 U.S. 78, 88 (1935).

^[12] Id.

^[13] Erin Gardner Schenk & David L. Shakes, Into the Wild Blue Yonder of Legal Representation for Victims of Sexual Assault: Can U.S. State Courts Learn from the Military?, 6 U. Denv. Crim. L. Rev. 1, 25 (2016).

^[14] One result of this movement was Congress’s Crime Victims’ Rights Act, which grants to victims an express, enforceable right to be present and “reasonably heard” at sentencing in federal courts. Crime Victims’ Rights Act of 2004, enacted as part of the Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260, 2261–65 (codified in relevant part at 18 U.S.C.A. § 3771 (West 2018)).

^[15] See Amy E. Halbrook, Kentucky’s Guardian Ad Litem Litigation: A Model for Seeking Role Clarity, 37 Child. Legal Rts. J. 81, 122­­­­­­­­­–27 (2017).

^[16] See Henry Lovat, Delineating the Interests of Justice, 35 Denv. J. Int’l L. & Pol’y 275 (2007) (commenting on the use of the phrase by the ICC).

[17] A previous version of the bill did include the animal’s interests or the “interests of justice.” See supra note 9. See generally, Delcianna J. Winders, Confronting Barriers to the Courtroom for Animal Advocates, 13 Animal L. 1, 2 (2006).

^[18] Jessica Rubin, How dogs and cats can get their day in court, The Conversation (Nov. 2, 2017, 7:39 PM), http://theconversation.com/how-dogs-and-cats-can-get-their-day-in-court-80790 [https://perma.cc/78MW-CWCF]. The organizations opposing the law argued that it would change the relationship between owner and pet, cause “legal mischief,” and interfere with the rights of owners. Id.

[19] See Halbrook, supra note 15.

[20] Margit Livingston, Desecrating the Ark: Animal Abuse and the Law’s Role in Prevention, 87 Iowa L. Rev. 1, 73 (2001).

^[21] See Gary L. Francione, Animals, Property, and the Law 121 (1995).

^[22] Livingston, supra note 20, at 13.

[23] See, e.g., Joan MacLeod Heminway & Patricia Graves Lenaghan, Safe Haven Conundrum: The Use of Special Bailments to Keep Pets Out of Violent Households, 12 Tenn. J.L. & Pol’y 79, 99 (2017) (“The passage of the law appears to be connected to concern over both the link between animal abuse and violence against people and the paucity of animal abuse cases resulting in a conviction.”).

^[24] The Facebook page was started by those who took care of Desmond when he was at two different animal shelters. Kayte Mulligan, Not “Just A Dog”: The Justice for Desmond Campaign, New Canaan Patch (July 23, 2012, 10:16 PM), https://patch.com/connecticut/newcanaan/bp–not-just-a-dog-the-justice-for-desmond-campaign [https://perma.cc/8KHH-AVBY].

^[25] Justice for Desmond, Facebook (Jan. 3, 2018, 2:51 PM), https://www.facebook.com/JusticeForDesmond/ [https://perma.cc/P9UK-V2ZP].

[26] Id.

^[27] Jeremy Bruskotter, Michael Nelson & John Vucetich, Does nature possess intrinsic value? An empirical assessment of Americans’ beliefs 1 (2015), http://www.michaelpnelson.com/Publications_files/Bruskotter%20et%20al.%20%282015%29%20IV%20Report.pdf [https://perma.cc/JBX5-GGJP].

^[28] Animal Legal Def. Fund, Why Prosecutors Don’t Prosecute (Dec. 3, 2017), www.aldf.org/article.php?id=245 [https://perma.cc/668S-KDRF]; see Livingston, supra note 20, at 4. (noting that prosecutors are hesitant to devote resources to animal cruelty cases, which are “frequently only misdemeanors”).

^[29] Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979).

^[30] Rabideau v. City of Racine, 627 N.W.2d 795, 798 (Wis. 2001).

^[31] Simon Worrall, Yes, Animals Think And Feel. Here’s How We Know, Nat’l Geographic (July 15, 2015), https://news.nationalgeographic.com/2015/07/150714-animal-dog-thinking-feelings-brain-science/ [https://perma.cc/9JMJ-FVXD].

^[32] Cass Sunstein, Slaughterhouse Jive, The New Republic (Jan. 29, 2001), https://newrepublic.com/article/63234/slaughterhouse-jive [https://perma.cc/N8UM-U2QR].

^[33] Id.

[34] Lora Dunn & David B. Rosengard, A Dog Is Not A Stereo: The Role of Animal Sentience in Determining the Scope of Owner Privacy Interests Under Oregon Law, 23 Animal L. 451, 461 (2017).

[35] Interestingly, in the United States, animal cruelty laws and animal protection agencies actually preceded a recognition of children’s rights. After establishing the American Society for the Prevention of Cruelty to Animals (ASPCA), the founders began to work on extending the same protective measures that existed for animals to children. Elizabeth W. LeBow & Debbie J. Cherney, The Role of Animal Welfare Legislation in Shaping Child Protection in the United States, 2 Int’l J. Educ. & Soc. Sci. 35, 40 (2015).

[36] Madeline Bernstein & Barry M. Wolf, Time to Feed the Evidence: What to Do With Seized Animals, 35 Envtl. L. Rep. 10679, 10683 (2005). There are forty-four jurisdictions where any and all neglected or abused animals can be seized prior to their owner’s conviction on cruelty charges. See id.

[37] Id. at 10679.

[38] Hanna Gibson, A Brief Summary of Dog Fighting Laws, Animal Legal & Historical Ctr. (2005), https://www.animallaw.info/article/detailed-discussion-dog-fighting [https://perma.cc/U6LR-CAZD].

[39] Id.

[40] Animal Legal Def. Fund, Animal Fighting Case Study: Michael Vick (last updated Dec. 15, 2010), http://aldf.org/resources/laws-cases/animal-fighting-case-study-michael-vick/ [https://perma.cc/H8G9-H74Z].

[41] Id.

[42] Daniel Tepfer, Bridgeport ‘legal beagle’ advocates for abused dogs, Conn. Post, (May 06, 2018, 3:35 PM), https://www.ctpost.com/local/article/Bridgeport-legal-beagle-advocates-for-12889211.php [https://perma.cc/CGG9-NXNN].

[43] Jordan Otero Sisson, Abused Animals Will Get Voice in Court This Month Thanks to New Law, Hartford Courant (Apr. 10, 2017, 6:00 AM), http://www.courant.com/news/connecticut/hc-desmonds-law-animal-advocates-20170331-story.html [https://perma.cc/GQ9R-JEXM]; Angela Morris, Animal Law Clinics Become Pet Projects at Law Schools, Tex. Lawyer (Nov. 13, 2017, 2:25 PM), https://www.law.com/texaslawyer/sites/texaslawyer/2017/11/13/animal-law-clinics-become-pet-projects-at-law-schools/ [https://perma.cc/4NTB-CF3X].