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This Article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation, yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically under-theorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.

This Article begins in Part I by identifying the three axes that should govern the deference question. Based on the insights gleaned from this analysis, Part II identifies six principles guiding the deference inquiry and applies them to congressional deference claims in several contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. This Article concludes with a call for further research on this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.

Transgender youth in foster care are not safe. While these youth face the daily danger of physical violence at the hands of others in their foster care group homes, administrators of child welfare services have shown deliberate indifference to these risks, and staff in foster care group homes do not effectively protect the physical safety of transgender youth in their care. Because resource constraints make it impossible to place all transgender youth in LGBTQ-only group homes, we need a solution that will make transgender youth safe in the group homes that already exist. This Note argues that the current New York City foster care system violates the substantive due process safety rights of the transgender youth under its care, and proposes legislation that would presumptively mandate transgender-only bedrooms and bathrooms. Such legislation would provide safe spaces within existing group homes in order to fix current constitutional violations.

The United States is distinct among nations in its constitutionalization of personal jurisdiction. This Note explains the intertwined history of U.S. specific jurisdiction law and the so-called “Hague Judgments Project,” which is facilitating negotiations toward a treaty regulating recognition and enforcement of foreign judgments. This Note argues that the constitutionality of any such proposed treaty will remain uncertain unless U.S. courts clarify existing personal jurisdictional doctrine, particularly regarding the “jurisdictional filters” question: May U.S. courts lawfully recognize and enforce a foreign judgment issued upon a jurisdictional basis that would have been unconstitutional in domestic litigation? This Note answers “yes,” at least when the foreign court’s exercise of personal jurisdiction is compatible with internationally accepted norms. By proposing a cogent response to this question, this Note hopes to facilitate the negotiation and adoption of a future judgments convention.

Due to a now-repealed mandatory jurisdiction statute, in 1972 the Supreme Court was forced to decide the issue of whether there was a constitutional right to same-sex marriage. Their opinion, as stated in the case Baker v. Nelson, was: “The appeal is dismissed for want of a substantial federal question.” That sentence literally comprises the entirety of the summary opinion, and that sentence has obstructed progress in same-sex marriage litigation for decades, including in the last few years. This Note argues that Baker v. Nelson should carry zero precedential weight in 2014. Intervening doctrinal developments should have rendered the case overruled, particularly Zablocki v. Redhail, which conclusively stated a fundamental right to marry under the Due Process Clause. Furthermore, there are significant differences between the factual circumstances of Baker and those of modern cases, particularly the fact that Baker involved a clerk’s administration of a vague statute as opposed to statutes or constitutional provisions that are facially discriminatory. Contemporary same-sex marriage cases should be decided on their merits and not at all influenced by a one-line summary disposition from a completely different era of the marriage equality movement.

Policy experimentation in the “laboratory of the states” is a frequently cited benefit of our federalist system, but a necessary condition of thoughtful experimentation is often missing. To conduct useful policy experiments, states and other subfederal actors need baseline information: In order to learn from the successes and failures of their neighbors, state actors must understand the laws and regulations that other jurisdictions have enacted. And, despite the seemingly ready availability of legal and regulatory materials in the information age, subfederal officials often lack this understanding. The literature has recognized that states often fail to share policy results, particularly failures, but few legal scholars have explored the lack of information about the substance of policy—an essential foundation for thoughtful experimentation. This information deficit tends to pervade technical policy areas in particular—those that do not follow uniform codes and require expertise to understand, like hydraulic fracturing and health care. In these areas and others, the states may still be laboratories, but in some cases they are laboratories on islands, with no comprehensive, uniform information exchanged among them. This limits the experimental upside of laboratories—informed, efficient, and innovative regulatory approaches. It also expands laboratories’ known downside—the costs to private entities of complying with different standards.

This Article explores the problem of regulatory islands and the public choice, political economy, and resource-based dynamics that create them. It also explores areas in which states have effectively shared regulatory content—often with federal help—and argues that the federal government is in the best position to work with subfederal institutions to produce and synthesize regulatory information. Even if the government does not do the collection and synthesization itself—indeed, mistrust by state actors may prevent this level of involvement—it should fund and partially manage it. Federal involvement is important because when the federal government allows subfederal experimentation in areas of federal concern, it should already be producing much of this information anyway in order to monitor state regulation to ensure that federal goals are being met and ensure that states are not imposing externalities on their neighbors. Increasing the availability of regulatory information will enable more informed experimentation and allow monitoring of policy gaps. In the many areas in which it does not regulate directly, the essential federal government role in modern regulatory experiments is an informational one.

The problem of changed circumstances recurs throughout constitutional law. Statutes often outlive the conditions they were meant to address. A once-reasonable law may come to impose burdens that the legislature never intended and would not now be willing to impose. This Note asks whether courts are ever permitted to step in and declare that, as a result of postenactment changed circumstances, a once-valid law can no longer be constitutionally applied. It argues that the propriety of changed circumstances review depends first on whether the applicable doctrinal test is substantive or motives-based. A substantive test is one that imposes an absolute prohibition on certain categories of legislation, or requires a particular degree of fit between legislative means and ends. A motives-based test asks only whether the enacting legislature intended to further an impermissible objective. This Note demonstrates that where the underlying test is substantive, a reviewing court must at least consider whether circumstances have sufficiently changed since the challenged law’s enactment to justify striking it down. If the test is motives-based, then the court should generally consider only whether the statute is valid based on facts as they existed when it first went into effect.

Inadequate prison health care has created a health crisis for reentering prisoners and their communities—a crisis that is exacerbated by barriers to employment and other collateral consequences of release. This Note will first examine how current Eighth Amendment doctrine has failed to sufficiently regulate prison health care so as to have any significant effect on the crisis. Next, it will argue that the Affordable Care Act (ACA) alters the Eighth Amendment analysis by triggering a change in the “evolving standards of decency” that guide the doctrine. Specifically, this Note will argue that, after the passage of the ACA, releasing sick, Medicaid-eligible prisoners without enrolling them in the federal benefits program violates the Eighth Amendment.