Volume 39, Issue 1

Fair Housing’s Third Act: American Tragedy or Triumph?

Heather R. Abraham

Fifty-two years ago, Congress enacted a one-of-a-kind civil rights directive. It requires every federal agency—and state and local grantees by extension—to take affirmative steps to undo segregation. In 2020, this overlooked Fair Housing Act provision—the “affirmatively furthering fair housing” or “AFFH” mandate—had heightened relevance. Perhaps most visible was Donald Trump’s racially charged “protect the suburbs” campaign rhetoric. In an appeal to suburban constituents, his administration replaced a race-conscious fair housing rule with a no-questions-asked regulation that elevates local control above civil rights.

The maneuver was especially stark as protesters marched in opposition to systemic racism’s many forms. In this moment of racial awakening, it is critical to revisit how neighborhood segregation affects nearly all aspects of American life. We live in a racist ecosystem, and racial segregation is its defining feature. Segregation’s profound influence reinforces the importance of the AFFH mandate as a remedial tool.

Opportunism Zones

Edward W. De Barbieri

In 2017, Congress adopted the Opportunity Zone, a powerful place-based economic development tool, as part of a major tax reform. Place-based economic development tools and strategies provide incentives to re-attract jobs and capital to areas from which jobs and capital have fled. Investors in state-designated Opportunity Zone districts benefit from their mechanics: they are able to (1) defer capital gains on qualified investments; (2) step-up tax basis on invested funds; and (3) permanently avoid tax on investment appreciation. Proponents of the Opportunity Zone argued that these tax incentives will serve as an efficient way to direct investment dollars to poor areas. However, critics point out that such government interventions are stricken by corruption, abuse, and waste.

The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions Involving Disabled Mothers 

Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier

The right to parent has long been regarded as one of our most treasured fundamental rights. Despite the disability rights movement’s many achievements, especially the passage of the Americans with Disabilities Act (“ADA”) in 1990, the right to parenthood remains inaccessible to many people with disabilities. Scholars and advocates have posited that the ADA has not adequately protected the rights of parents with disabilities involved with the child welfare system, particularly at the termination of parental rights phase. This Article develops this critique as applied to an original empirical study of 2,064 appellate termination of parental rights decisions adjudicated between 2006 and 2016 that involved mothers with disabilities. This is the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases. In particular, we aimed to understand if a mother’s disability type predicts whether courts raise or apply the ADA.

Defending Progressive Prosecution

Jeffrey Bellin

“Progressive prosecutors” are taking over District Attorney’s Offices across the nation with a mandate to reform the criminal justice system from the inside. Emily Bazelon’s new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration, chronicles this potentially transformative moment in American criminal justice.

This Essay highlights the importance of Charged to modern criminal justice debates and leverages its concrete framing to offer a generally applicable theory of prosecutor-driven criminal justice reform. The theory seeks to reconcile reformers’ newfound embrace of prosecutorial discretion with long-standing worries, both inside and outside the academy, about the dangerous accumulation of prosecutorial power. It also offers the potential to broaden the reform movement’s appeal beyond progressive jurisdictions.

Turf Wars: Arming Congress’s Gang (of Eight)

Geoffrey J.H. Block

This Note explores how Congress can respond to a president who withholds non-covert intelligence operations from the congressional intelligence committees in violation of the National Security Act. This Note proposes a novel solution for Congress: the elevation of the Gang of Eight into a joint permanent select committee that is authorized to file suit on behalf of Congress. Congressional lawsuits are likely to be challenged on the basis of standing. Gang of Eight lawsuits could empower congressional leaders to meet a court’s standing analysis, allowing Congress to reassert its role in overseeing the intelligence community.

Commandeering Confrontation: A Novel Threat to the Indian Child Welfare Act and Tribal Sovereignty

Leanne Gale & Kelly McClure

Congress enacted the Indian Child Welfare Act (“ICWA”) in 1978 to address abuses by state and private child welfare agencies that resulted in the forced removal of roughly one-third of all Indian children from their families. However, four decades after the passage of the law, opponents of ICWA make the novel argument that it impermissibly commandeers the States, in violation of the Tenth Amendment. In Brackeen v. Bernhardt—a 2018 decision that contradicted much of modern anti-commandeering doctrine—the U.S. District Court for the Northern District of Texas became the first court to declare ICWA unconstitutional. The anti-commandeering challenge to ICWA threatens to upend much of federal Indian law and to disrupt the delicate balance of power among states, tribes, and the federal government. This Note refutes the claim that ICWA commandeers the States. The commandeering claims advanced against ICWA contradict settled Supreme Court doctrine and misconstrue the practical application of the statute.