UCULR Spring 2012 Issue #1

I. Comparing Constitutions in the Modern World: An Interview with Professor Tom GinsburgBy David Kaner

II. Weakening Legal Foundations: The Changing Face of Capital Punishment in IranBy Hannah Ridge

III. Solving the Russian HIV Crisis with Harm Reduction StrategiesBy Alida Miranda-Wolff

IV. In Defense of FederalismBy Spencer McAvoy

V. For A Stronger False Claims Act By Adam Swingle

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UNIVERSITY OF CHICAGOUNDERGRADUATE LAW REVIEW

SPRING 2012 ISSUE

UCULRIssue1.indd 1 4/22/12 5:16 PM


Editor-in-Chief

Managing Editor

Executive Editor

Domestic Law Editor

International Law Editor

Carreers in Law Editor

Blog Editor

Associate Domestic Law Editor

Associate International Law Editor

Layout Editor

Design Editor

Alida Miranda-Wolff Anastasia Golovashkina

Adam Swingle

Colin Bradley

David Kaner

Ephraim Abreu

Molly Cunningham

Jeremy Sawyer

Benjamin Tennenbaum

Douglas Everson

Andrew Green

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I. Comparing Constitutions in the Modern World: An Interview with Professor Tom GinsburgBy David Kaner

II. Weakening Legal Foundations: The Changing Face of Capital Punishment in IranBy Hannah Ridge

III. Solving the Russian HIV Crisis with Harm Reduction StrategiesBy Alida Miranda-Wolff

IV. In Defense of FederalismBy Spencer McAvoy

V. For A Stronger False Claims Act By Adam Swingle

Page 4

Page 8

Page 12

Page 19

Page 24

The University of Chicago Undergraduate Law Review (UCULR) is a student-run publication dedicated to the discussion, analysis, interpretation, and evaluation of a va-riety of legal issues. It aims to provide a better understanding of the law in all of its am-biguities and contradictions in order to reveal how complex compilations of regulatory components can not only serve as reflections of social attitudes towards general ideas of order, agency, consent, power, and choice, but influence the most minute details of everyday life.

UCULR’s first issue explores the complexity of the state and how it fails and succeeds in defining itself, establishing representative and efficient rules and regulations, working as a unified institution, and reflecting the needs and wants of its members. From how the Russian government’s narcotics legislation exacerbates the spread of HIV to how the New Deal Court’s decisions in three cases fundamentally transformed the relationship between the states and the federal government, this issue seeks to uncover how laws and legal decisions that are frequently unobserved or overlooked by the public affect it on an individualized scale. Ultimately, while many of these arguments posit solutions to problems caused by the way governments run their respective states, they are also meant to elicit self-reflection on the nature of the state and how it impacts its members.

—Alida Miranda-Wolff

Editor’s Note

Table of Contents


4 Spring 2012

DK: I’m here with Tom Ginsburg, the Leo Spitz Professor of International Law and Political Science at the University of Chicago. He currently co-directs the Comparative Constitutions Project and has consulted with numerous international development agencies and foreign governments on legal and constitutional reform. Thank you Professor Ginsburg for doing this.

TG: My pleasure.

DK: So to start out, do you think you could describe the work of the Comparative Constitu-tions Project and maybe talk about what inspired its creation?TG: Some years ago when I was at the University of Illinois at Urbana a colleague and I were talking and we realized we had a common interest in constitutions-he’s a political scientist named Zachary Elkins, he’s now at the University of Texas-and we conceived of the idea of gathering basic data on what the content of the world’s constitutions was. Believe it or not, as important as these documents are, and as high profile as they are, there’s just very little systematic information about what’s in them. So we thought it would be useful to gather and to code, really, to put together a database of the world’s constitutions. We then decided that it ought to be comprehensive, so we began with 1789, the American Constitution, widely perceived to be the first national constitution that was written down, and try to cover all countries and all years since then.

DK: So that’s obviously a very ambitious project. Have you found it a challenge? Has it been difficult to gather all that information and if so, how?TG: It’s taken longer than we anticipated. One of the reasons is when we did our initial count we thought there were some 200 or 300 constitutions in existence but we realized as we began to look that there were many more than we had conceived of. Even though there are only 194 countries right now and there were only 60 before WWII, those countries have produced a tremendous number of documents. The reason for that is that constitutions turn out not to last very long on average. So many countries have many constitutions in their history. The Dominican Republic by our count has had 27.

So this meant that there was a lot more work than we had originally anticipated, first of all just finding all these documents and then in coding them. Another challenge has been the

Comparing Constitutions in the

Modern World: An Interview with

Professor Tom Ginsburg

By David Kaner

This interview is a transcription of a recorded interview between David Kaner and Professor Tom Ginsburg. The text has been edited slightly for clarity.


5Volume I, Issue IUniversity of Chicago Undergraduate Law Review

existence of versions in English. Not all constitutions have been translated so we had to com-mission some translations as well as hire people with specific language abilities.

DK: Especially considering how many constitutions countries have gone through, do you think that rate of constitutional mortality is a product of the unique political circumstance or do you think there are elements of a constitution that control its longevity? TG: It’s a great question and it’s one we set out to answer in a book we published a couple of years ago called “The Endurance of National Constitutions.” Our basic framework was that a constitution is a political bargain, a set of institutions that will be stable so long as nothing in the environment changes, but we frequently observe that when there’s a shock to the system-a war, a crisis-it’s followed by constitutional death. At the same time we were interested in ex-actly what you’re asking, which was is there anything we can put in the constitution that can immunize, if you will, from shocks. We did find certain features that help make a constitution last.

DK: What sort of features?TG: Constitutions that are more flexible. It makes some intuitive sense. The easier it is to amend a constitution the more able it is to adjust to changing circumstances. A second factor is the amount of participation that goes into producing the constitution, so we have kind of an index of participation. When the public is involved, we think that helps a constitution to endure, because people will be aware of the constitution when someone tries to violate it. Finally, we find that constitutions that are more detailed and more specific last a long time. This was quite a shock to many Americans, who tend to believe it’s the very vagueness of our

“Everything is always contextual, so an institution that works in one country won’t

necessarily translate to another.”

Photo: Angela Wang (2012)


6 Spring 2012

document that has allowed it to survive, but we find that on average the opposite is true.

DK: Other than longevity, have you come to any value judgments about any other specific structure or enumeration of rights that is either helpful or hurtful to a people to put in their constitution?TG: Well, I tend to be partial to the institution of constitutional review, where you have a court to review and make an independent evaluation of challenges to the constitution. It’s of course the case that these courts can be manipulated. Nevertheless, I think that everything else being equal it’s still better to have the possibility of a second look at key policies to make sure they’re constitutional, so I tend to think that that’s important.

DK: That’s obviously a feature we have in our constitution, through the Supreme Court. You start in 1789, with our constitution, not the Magna Carta or something else. So how do you view the influence of our constitution on the development of everything that came after?TG: Well it’s a great question and in some sense it’s an empirical question. You can get at it by looking at the similarity of other constitutions to the United States’ in terms of the insti-tutions that they adopt. One of the things we discovered in our book is that over time the similarity of other countries’ constitutions to that of the United States has declined. When you look to constitutions in the 19th century they were quite similar, but just looking at Latin America, a region that has been historically influenced by the United States institutionally [Professor Ginsburg points to a graph in one of his books, showing that the similarity of Latin American constitutions to the US Constitution has declined over time] one sees a drift away from the US model in terms of similarity over time. That makes a good deal of sense and we think it’s normatively attractive because of course the world’s very different from what it was like in 1789. Many people have argued that the United States Constitution should be reformed or amended and I personally tend to agree with that.

DK: Sort of as a segue, the Comparative Constitutions Project works with the US Institute of Peace on a website called constitutionmaking.org, which aims to “facilitate informed choice” for designers of governing institutions. That sounds a little different from what we did post-WWII, where we basically wrote the constitution of Japan for them. How does that process work and how do you, coming from a specific environment of thought about what rights people should have, balance the set of what you’ve come to consider “best practices” with respecting local culture and desires, as well as the political environment of the moment?TG: I tend to shy away from the language of “best practices”. Everything is always contextual, so an institution that works in one country won’t necessarily translate to another. At the same time countries are always trying to learn from each other, and there’s no reason to reinvent the wheel because situations reoccur. So there’s a kind of tension between those two posi-tions, and that of course is what the job is of constitutional designers to try and figure out. There’s also the problem of institutional complementarities. You can’t adopt institutions in isolation, they work with other institutions in a kind of whole configuration or structure. In any case, I think the job of constitution writing is to try to understand how institutions have operated in other countries as best we can. And here the social science is not real great, we don’t really have a lot of firm knowledge about how to fit institutions to context. Neverthe-



less, that’s what the field of comparative politics is trying to work out. There’s also technical aspects of drafting, just of writing a law and making it internally consistent. All of this increas-ingly occurs in a kind of global context. Just the last month I’ve been doing some work on the constitution of Somalia; there’s a push by the international community to try to get a new constitution for Somalia in the spring. That’s inherently an international process because of the nature of the conflict there.

DK: Do you think on the whole, having looked at so many of these documents, that the rationale for having a constitution continues to be a strong one? Because the UK, Israel and New Zealand, for instance, have un-codified constitutions. Do you think the constitution as we conceive of it in America will continue to be the model for how you create a governmental infrastructure going forward? TG: Well, increasingly it’s not the model, so most new constitutions don’t adopt our particu-lar system. Certain aspects of the American Constitution have been very influential, like the Bill of Rights. Other aspects have not been, like the Electoral College-maybe that’s a good thing. So it’s all very specific, but one thing to look at is the overall structure of governing institutions, and there the typical options are usually thought of as being presidential, parlia-mentary and semi-presidential. It turns out the plurality of countries in the world today have adopted semi-presidential constitutions, it’s now the most popular form of government, com-bining features of a presidential system as in the US and a parliamentary system as in Britain. So this just illustrates that there’s institutional experimentation going on, there are trends in constitutional government, just as there are with fashion, which implies people aren’t always adopting institutions because they’re the best, but maybe because other influential countries are doing it. All of that said, I think American influence as a model has gone down. American influence in practice, though, has not, because there’s many American organizations that play a role in constitution-making situations in post-conflict states, for example.

DK: So as a concluding question then, what trends are you seeing in constitutions? What ef-fect do you think that will have moving forward on world politics?TG: One trend is that constitutions are becoming much more detailed. They’re also becom-ing more flexible. The difficulty of amending constitutions is decreasing somewhat. In some sense we think this is good because, as I said, those two things were good for endurance, but it also implies constitutions are more like statutes, ordinary laws that can be changed with some frequency, rather than being these kind of central documents to the political culture that we imagine from our American experience. So that’s certainly a trend. In terms of substance we see a trend towards greater use of independent accountability agencies, human rights com-missions, electoral commissions, some specialization in terms of government function that way, trying to take things out of the political sphere and giving them to so called independent regulatory agencies, so that’s certainly a trend as well

DK: Professor Ginsburg, thanks so much for your time, it’s been very interesting. Thank you.

David Kaner is a second-year in the College majoring in Political Science and Law, Letters, and Society.


8 Spring 2012

Weakening Legal Foundations: The

Changing Face of Capital Punishment

in Iran

By Hannah Ridge

In 2006, Sakineh Mohammadi Ashtiani was charged with assisting in the murder of her husband and committing adultery. She was sentenced to ten years in prison for the first crime and death by stoning for the second. Despite international uproar, the verdict, while extreme, was not surprising to those familiar with Shari’a law. However, Ashtiani’s case is unique because the judiciary realized at the time that the state lacked the facilities for a stoning. Therefore, this December, the current head of the judiciary, Ayatollah Amoli Larijani, ruled that “since the objective is execution, and since stoning is not practical, the execution should be done by hanging,”1 making Ashtiani the latest in a series of cases testing the Iranian practice of stoning as punishment for adultery. Islamic legal scholars are now debating whether hanging may be legitimately substituted for stoning.

The issue is not the application of religious law but the perversion of the principle. If states are justified, in the name of national sovereignty and religious freedom, in exacting extreme punishments that offend the sensibilities of much of the world, then no outsider may intervene, and discussion is futile. However, because the state has moved away from qur’anic prescriptions, the state’s justification is void. The nullification of the Islamic foundation suggests that it is possible and reasonable for Iran to consider other options.

Islamic law places a high value on human life and does not intend that it be taken lightly. The Qur’an says that one human life is equivalent to the entire human race,2 underscoring its value in God’s eyes3, and that it may only be removed, without threatening the killer’s immortal soul, as punishment for religious crimes. Iran, therefore, should not be believed to have come lightly to the decision to invoke capital punishment. The contemporary application of the death penalty usually stems from qur’anic mandates, known as hudud. Hudud (Hadd in singular) means border,

1. CNN Wirestaff, with contributions from Shirzad Bozorgmehr and Gena Somra. “Iranian officials: Woman may be hanged instead of stoned.” CNN. 26 December 2011. http://edition.cnn.com/2011/12/26/world/meast/iran-woman-stoning/index.html?hpt=hp_t3 [Source will subsequently be referred to in subsequent notes as CNN.]2. Pickthall, Marmaduke, trans. The Meaning of the Glorious Koran. Chicago: Kazi Pulbications, 1996. 5:32. [Subsequent notes will list the sura and aya only.]3. The Qur’an is taken in Islam as the literal word of God, for whom Muhammad was a prophet. The Hadith is the account of his actions and sayings. Shari’a uses both the Qur’an and Hadith as sources of Islamic law. That is similar to Christians who use the entire Bible, which includes what Jesus (who is also God) said, what Jesus did, and the personal writings of those who were close to Jesus.

I. Introduction

II. Religious and Legal Context



limit, or extremity and has come to mean divine ordinance. The term refers to those crimes for which the Qur’an spells out the punishment. There are several, including unjust murder, unlawful sex4, false accusations of unlawful sex, theft, apostasy, intoxication, and highway robbery. They have varying punishments, including amputation, lashings, death, and exile. The role of hudud crimes in Shari’a law is unclear. They may have been meant to deter people from committing those crimes,5 especially since the laws are rarely enforced around the world, or to clarify specific legal points pertinent at the time. Fundamentally, they indicate the importance of the related issues – the value of life, property, and family structure – to society by vengefully punishing those who transgress those norms and threaten those institutions, behaviors tantamount to undermining integral aspects of the social fabric.

Ms. Ashtiani was sentenced to death for zinā, a hudud crime. The crime, zinā, has no direct English equivalent but is usually translated as adultery or fornication and is taken very seriously in Islam. Because sex is involved in many other aspects of Islamic law and culture and to heritage-based social standing, unlike in the contemporary West, sexual mores are very social. The Qur’an calls zinā an abomination and orders Muslims to avoid it.6 The qur’anic punishment is one hundred lashes.7 It must be noted that the subsequent verse delineates whom those who have committed zinā may marry, indicating that zinā was not always meant to be punished by death. While this may seem to invalidate Ashtiani’s sentence, the Hadith subsequently clarified the situation.8 The distinction comes from marriage: if a Muslim9 is unmarried, he is guilty of fornication, so he is lashed and exiled for a year; if he is married, he is guilty of adultery, which means he must be

4. The same word, zinā, encompasses both adultery and fornication, though, as will be discussed, the punish-ments differ.5. “Article 7: Right to equal protection by the law: Case Study: SHARIA LAW.” BBC World Service. http://www.bbc.co.uk/worldservice/people/features/ihavearightto/four_b/casestudy_art07.shtml [Subsequent notes will refer to this source as BBC]6. 17:327. 24:28. The clarification, thus, comes not from the word of God but from His prophet, Muhammad; however, in Islamic law they are equally valid legal sources. 9. The regulation is the same for male and female Muslims. In the Hadith account, it is a male subjected to exile and a woman to stoning, but that is because the woman is the one who is married.

Iran justifies its decision to hang a woman for adultery based on its religious prin-

ciples.

Photo used under creative commons license


10 Spring 2012

stoned. The standard of guilt is quite high, higher even than other crimes. Four adult, male, moral, Muslim witnesses to the act of penetration or a child born to a woman who has never been married is needed in order to prove zinā.10 The bar for other crimes is two witnesses. In place of four witnesses, one witness may swear four oaths before Allah that he has witnessed it and a fifth oath asking Allah’s curse on himself if lying.11 If he cannot do either, then he is presumed to be lying, and the accused may take the five oaths to affirm her innocence, at which point the accuser may face the hudud punishment for false accusations of zinā – eighty lashes.12

Islamic law has historically allowed for some bending of the rules, even with hudud crimes, for the sake of social welfare. As previously noted, zinā can be proven by having a child outside of wedlock. However, the Hanafi school of Islamic legal interpretation recognizes a gestation period of two years and the Maliki school a period of five years.13 As pregnancy has always lasted only about forty weeks, it is reasonable to assume that jurists were not confused but ignored that reality intentionally. In a culture where lineage and parentage define a person’s role in his family and society, legal scholars have chosen maintaining the social structure over science, even though it means neglecting the occurrence of a crime for which people are sometimes killed. For murder, the Qur’an both states that the punishment is death, usually at the hands of the victim’s family,14 but it allows for the murder’s family to offer monetary remuneration in exchange for the life taken.15 The blood money option, especially considering the extremely reduced severity, suggests that death as punishment may not be absolutely necessary so long as some punishment is exacted.16 A similar option could be extrapolated for adultery.

While there is precedent in Islamic law to respond harshly to crimes, especially crimes that threaten the most fundamental aspects of society, there also seems to be some room to maneuver within those principles. The fact that even scholars of the oldest legal school would ignore basic facts in order to prevent the application of such stringent punishments suggests that judges are within their capacity to ignore the expressed punishment, so long as they maintain the social structure that motivated it.

Contemporary Islamic legal scholars are split on this issue. Unlike in Catholicism, there is no individual who speaks ex cathedra. Even within Iran, jurists disagree as to whether Sakineh Mohammadi Ashtiani’s non-qur’anic sentence to hang is legitimate. Though the international community has spoken, Islamic law insists it begin and end with itself. God’s

10. Coulson, Noel J. Conflicts and Tensions in Islamic Jurisprudence. Chicago: University of Chicago Press, 1969. 61, 62, 65 [Subsequent citations will refer to this source as Coulson followed by the page number.]11. While witnesses must normally be of sound moral character, and having committed a crime might call one’s morality into question, those confessing to crimes may still testify against themselves without concerns about their morality.12. 24:413. Coulson, 7414. 17:3315. 2:17816. However, since both are listed in the Qur’an in this case, it could be argued that if God had meant to provide that option for all hudud crimes, it would have been listed in all cases.

III. Historical Flexibility of Application in Islamic Law



word is supreme,17 and it forswears the advice of non-believers.18 While they struggle with the theoretical, a woman’s life hangs in the balance.

Iran justifies its decision to hang a woman for adultery based on its religious principles. Even if one accepts that Islam requires stoning for transgressing the social mores, it seems that Iran is straying from the fold. If it is so foundational to society that religious laws are society’s laws, then maybe they must be obeyed. However, once the laws are bent, the enforcement is arbitrary. One is no longer justified in or upholding the text. Instead, Iran should be satisfied to live up to the spirit of the law, as Ayatollah Amoli Larijani suggested. The spirit of the law is not that adulterers should be killed but the discouragement of practices that threaten the life of society as a whole and the protection of the community from transgressors. That goal could well be served without hanging Ms. Ashtiani; prison would be enough to insulate society from her threat. Another option, and one which might better serve Iran internationally, is send to her far away from Iranian Muslim society, perhaps to Brazil, where she has been offered asylum.19 Society would be safe and a life would be spared.

There is judicial precedent in Iran for adjusting the sentence. 20 In December of 2002, the head of the judiciary, Ayatollah Shahroudi, issued a moratorium on stoning and instructed those sentences should be replaced with other punishments,21 and in 2007, Grand Ayatollah Sane’i issued a fatwa saying that no more stoning or amputations-as-punishment should occur until the 12th imam comes out of Occultation.22 In August of 2008, a spokesman for the judiciary announced that there was to be no more stoning, the two people who were to be stoned were being pardoned, and the sentence of one man was being commuted to ten years’ incarceration and a flogging.23 While these new sentences and punishments may not accord with the policies the Western world would see applied, the altered sentences demonstrate that alternatives are available to judges and political leaders in terms of stoning-for-adultery. That option for leniency might well be exercised in Ashtiani’s case.

Ultimately, though Shari’a scholars may determine whether Iran hangs Sakineh Mohammadi Ashtiani or not, Iran has already exposed the legal hypocrisy. Stoning as punishment for adultery may be within the laws of Shari’a and Iran, but the readiness of the judiciary to justify deviation suggests the principles are not as fixed as they appear, and, in that case, why should Iran not go a step further and forgo the murder? Without the religious justification of rigidly conforming to the few regulations explicated over thirteen hundred years ago, can one every really be justified in holding firmly to a mere few of them for the same sake?

Hannah Ridge is a third-year in the College majoring in Law, Letters, and Society.

17. 6:15018. 6:15119. CNN20. In 2006, the same year Ashtiani was sentenced to stoning for adultery, one man and one woman who were sentenced to stoning were hanged instead. Therefore, there is precedent for substituting hanging, though there is no qur’anic justification. (FIDH).21. This was not obeyed. 2 people were stoned for murder and adultery in 2006; 2 were stone in 2007, though there was a stay of execution issued for the woman. The Secretary of Human Rights claims that that instance was a judicial error by a provincial judge. 1 man was stoned in 2008 after confessing to adultery; 1 woman was stoned after she reported a rape and the rapist insisted it was consensual zīna. He was not stoned. (FIDH)22. “Iran: End executions by stoning.” Amnesty International. January 2008. http://www.amnesty.org/en/library/asset/MDE13/001/2008/en/2b087fb2-c2d2-11dc-ac4a-8d7763206e82/mde130012008eng.pdf23. “IRAN/death penalty: A state terror policy.” International Federation for Human Rights (FIDH). April 2009. http://www.fidh.org/IMG/pdf/Rapport_Iran_final.pdf


12 Spring 2012

Solving the Russian HIV Crisis with

Harm Reduction Strategies

By Alida Miranda-Wolff

As of 2008, of every four Russian citizens infected with HIV, three were narcotics addicts. 90% of those addicts were intravenous drug users, indicating that the HIV problem in the Russian Federation is directly related to injectable narcotics1. As the rate of infection reaches one million2, the cost of HIV to the state has already exceeded 100 billion USD. Consequently, the Russian government has waged a “War on Drugs”, enforcing strict drug laws and criminalizing addiction in order to reduce the supply of drugs. However, the Russian drug market continues to expand, grossing approximately 1.8 billion USD annually from the North Route alone, while opioid users between the ages of 14 and 30 now compose 1% of the total population3. Although Russia’s emphasis on supply reduction has not accomplished significant results, both the government and citizens remain resistant to harm reduction strategies because of preexisting cultural and religious attitudes, resulting in a scarcity of anti-addictive drugs, needle exchange programs, safe injecting sites, and educational materials4. Nevertheless, in order for the Russian government to stop the spread of HIV and reduce public health risks and medical costs to the state, it must legalize methadone and buprenorphine, amend the 1996 Criminal Code to protect harm reduction programs, and shift its focus from opiate supply reduction policies to demand reduction initiatives.

The UN ranks the Russian Federation among the five countries most seriously affected by HIV/AIDS, specifically because it has the fastest growing HIV/AIDS epidemic in the world and a 1% prevalence rate among its youth5. While the main parties afflicted by the virus are intravenous drug users (IDUs), IDUs are not limited to a specific gender or class, preventing few barriers to the rapid spread of HIV/AIDS from IDUs to non-narcotics users. For example, HIV infection in female IDUs increased 450 times between 1997-2000, leading to a larger number of infected infants and

1. William E. Butler, Injecting Drug Use and HIV: Harm Reduction Programs and the Russian Legal System, 1 Rul. Russ. 209 (2005)2. Id at 210-2113. Sergei V. Golunov et al. Drug Trafficking Along the Russian-Kazakh Border: Challenges of Enforcement, 4 Crim. & Corrup. 56 (2008)4. Tim Rhodes et al. Policy Resistance to Harm Reduction for Drug Users and Potential Effect of Change, 341 Brit. Med. J. 1, 5 (2010)5. United Nations, Office on Drugs and Crime Regional Office for Russia and Belarus, Illicit Drug Trends in the Russian Federation, available at http://www.unodc.org/documents/regional/central-asia/Illicit%20Drug%20Trends%20Report_Russia.pdf (last visited Mar. 3 2012)

I. Introduction

II. Intravenous Drug use and the HIV Crisis



children6. Since 2002, the number of blood donors with HIV has grown tenfold, increasing the rate of HIV transmission among the general population7. The predominance of opioid addiction and intravenous drug use in the Russian Federation can be attributed to a combination of cultural, geographical, and economic factors including the liberalization of trade after the nation’s transition to Capitalism, feelings of alienation among the youth as a result of social change, increased poverty and joblessness, and easy access to domestic opiate sources. However, the prevalence of HIV infection in IDUs is uniquely high, placing the Russian Federation apart from other nations experiencing HIV/AIDS epidemics8. The Russian government’s zero-tolerance policy towards drug use contributes to this relationship because HIV infection is not caused by drug use per se, but rather the unclean drug use practices like sharing infected needles and syringes. The fact that substitution therapy, which indirectly prevents HIV/AIDS by reducing heroin injection, is illegal, and few needle exchange programs and educational materials exist, only exacerbates the HIV/AIDS epidemic.

In every region of Russia, opiates are readily available and easily accessible at a low cost because of an extremely porous Russia-Kazakh border, proximity to the impoverished Central Asian states, and the large domestic supply of poppies. Russia’s transition from Communism to Capitalism since 1991 has opened its trade borders and liberalized markets by lifting many of its previous trade restrictions, leading to the growth of illegal markets including heroin cartels9. 90 percent of opiates are smuggled into the country through the “northern drug route”, which begins in Afghanistan and winds through Tajikistan, Kyrgyzstan, Uzbekistan, and Kazakhstan before finally reaching Russia10. The high levels of poverty in the Central Asian states, a direct result of the collapse of the Soviet Union, allow traffickers to easily recruit couriers, who often cross the understaffed Russia-Kazakh border undetected amongst massive influxes of cargo and passenger traffic11. Although the Russia-Kazakh border is patrolled by the Federal Security Service, the State Agency for Combating Narcotics, and the Ministries of Internal Affairs of both Russia and Kazakhstan, it is difficult to find high-quality recruits to staff the border because of the prevailing economic problems in both nations. As a result, smugglers can easily bribe members of state agencies to ease the flow of narcotics across the border, protect them from arrest, and return confiscated merchandise12. Moreover, the demand for heroin in Russia is greater than in Afghanistan and the Central Asian

6. William E. Butler, Injecting Drug Use and HIV: Harm Reduction Programs and the Russian Legal System, 1 Rul. Russ. 207 (2005)7. Id at 209 8. Id at 210 9. Letizia Paoli, The Ugly Side of Capitalism and Democracy: The Development of the Illegal Drug Market in Post-Soviet Russia, 1 Rul. Russ. 184 (2005)10. Sergei V. Golunov et al. Drug Trafficking Along the Russian-Kazakh Border: Challenges of Enforcement, 4 Crim. & Corrup. 53 (2008)11. United Nations, Office on Drugs and Crime Regional Office for Russia and Belarus, Illicit Drug Trends in the Russian Federation, available at http://www.unodc.org/documents/regional/central-asia/Illicit%20Drug%20Trends%20Report_Russia.pdf (last visited Mar. 3 2012)12. Sergei V. Golunov et al. Drug Trafficking Along the Russian-Kazakh Border: Challenges of Enforcement, 4 Crim. & Corrup. 53 (2008)

III. Growth of the Russian Drug Market


14 Spring 2012

States and its price is 15 to 20 times higher, making it an ideal market for traffickers13. Even without the north route, Russians can easily access opiates thanks to a domestic source: 2.5 million acres of wild poppies, cultivated not by drug traffickers but by “narconannies” and “narcograndads”14. These older men and women produce and sell crude narcotics in order to augment their generally paltry annual income, and are difficult to find and prosecute because of the small-scale nature of their trade and their innocuous appearances. Ultimately, heroin use is linked to poor social conditions. In 1996 alone, “1.5 million children neither worked nor attended school, 200 were murdered by their own mothers, 17,000 experienced threats on their lives, and 2,000 committed suicide”15, resulting in a new generation of Russians inclined towards opiate addiction, increasing the demand for narcotics, and fueling the growth of a sprawling drug market.

13. United Nations, Office on Drugs and Crime Regional Office for Russia and Belarus, Illicit Drug Trends in the Russian Federation, available at http://www.unodc.org/documents/regional/central-asia/Illicit%20Drug%20Trends%20Report_Russia.pdf (last visited Mar. 3 2012)14. John M. Kramer, Drug Abuse in Post-Communist Russia, 1 Russ. Tn. Sf. Nts. 110 (2000) 15. Id at 107

The Russian Federation is experiencing one of the worst HIV/AIDS epidemics in the

world, and its primary cause is intravenous drug use.

Photo: Candy Jernigan (1986)



IV. Governmental Attempts at Supply Reduction

The Russian Federation models its supply reduction policies after the U.S.’s “War on Drugs”, which attempts to prohibit the production, distribution, and consumption of illegal drugs by enforcing strict drug laws and employing thousands of police and military officers to investigate and arrest drug dealers and users16. Thus far, the U.S.’s War on Drugs has not proved successful, an unsettling fact considering that the U.S’s gross domestic product in 2010, one of its most difficult economic years, was still 14 times higher than the Russian Federation’s, allowing it far more funds to allocate to supply reduction policies17. Nevertheless, the Russian government continues to follow the U.S’s example, both in its 1996 Criminal Code and subsequent mobilization efforts. Article 228 of the 1996 Criminal Code stipulates that the “illegal acquisition or storage, of narcotic drugs or psychotropic substances on a large scale without the purpose of sale” is punishable by up to three years of imprisonment18. Until 2004 “a large scale” qualified as any amount above 0.005 grams, but after drug possession laws were amended, increased to “up to ten doses”, which depending on the quality of the drug and the tolerance of the user amounts to anywhere from 0.02 grams to 0.08 grams19. The code sentences individuals who acquire illegal drugs for the purpose of sale to a term of three to seven years20. However, police officers often struggle to find the criminal networks behind the drug trade, meaning that couriers and users are far more likely to be arrested and imprisoned21. Consequently, IDUs enter the prison system, where heroin and other opiates are still available, but do not have access to clean syringes or needles, increasing the spread of HIV without significantly reducing intravenous drug use. Despite these less than successful results, the Russian government continues to fund law enforcement both along the Russia-Kazakh border and internally, but its inability to find enough quality workers means that it often pays corrupt officers who protect drug traffickers and dealers22.

While critics of harm reduction strategies such as opioid substitution therapy and needle exchange programs argue that they encourage drug use and exacerbate the problem, the United Nations Office on Drugs and Crime explicitly supports both as methods of preventing the spread of HIV/AIDS and provides several examples of countries that

16. Sergei V. Golunov et al. Drug Trafficking Along the Russian-Kazakh Border: Challenges of Enforcement, 4 Crim. & Corrup. 70 (2008)17. U.S Department of Commerce Bureau of Economic Analysis, Gross Domestic Product (GDP), available at http://www.bea.gov/national/index.htm#gdp (last visited March 23)18. p. 9 st. 228 UK RF19. Letizia Paoli, The Ugly Side of Capitalism and Democracy: The Development of the Illegal Drug Market in Post-Soviet Russia, 1 Rul. Russ. 200 (2005)20. p. 9 st. 228 UK RF21. Sergei V. Golunov et al. Drug Trafficking Along the Russian-Kazakh Border: Challenges of Enforcement, 4 Crim. & Corrup. 71 (2008)22. Id at 72-73

V. The Harm Reduction Solution


16 Spring 2012

implemented harm reduction strategies without increasing drug use23. Most Russian narcotics addicts are between the ages of 18 to 30, unemployed, and commit crimes to finance their addiction24. Last year alone, the Russian police registered 7,560 serious and extremely serious crimes committed by narcotics addicts25. By legalizing methadone and buprenorphine, which would allow opiate abusers to easily access substitutes that eliminate cravings and withdrawal symptoms, the Russian government could reduce these figures. More importantly, these substitutes are administered by professionals, which means all needles, syringes, and swabs are sterile and limited to one user, preventing HIV infection. While critics of harm reduction strategies in the Russian Federation argue that methadone and buprenorphine are drugs themselves and could easily worsen the drug problem or be sold on the black market, that risk is very low, as evidenced by neighboring countries like Ukraine, which witnessed no increase in the illegal consumption of these substitutes after legalization26. Needle exchange programs provide clean materials to IDUs, as well as educational materials on safe drug practices. Finally, both methods allow for the hospital and the local needle exchange to act as registration centers for narcotics users, allowing the government to assess the current number of IDUs, watch for criminal activities, and gain access to their medical records, including their HIV/AIDS status.

Although Russia’s attempts at supply reduction have not achieved notable results, Russians remain resistant to alternative practices such as opioid substitution therapy and harm reduction programs. This opposition is grounded in Soviet history. Between 1972 and 1988, diagnosed drug addicts were treated as criminals and were coercively registered with the police27. Upon registration, addicts were confined to hospital for a treatment period of 60 to 90 days, with non-compliance resulting in forced treatment for 1 to 2 years28. Registered addicts could not travel to other countries, hold a driver’s license, obtain a hunting license, or attend a university29. Consequently, addicts were discouraged from seeking treatment and admitting to their addiction, while both the law and the public viewed them as a threat to society. Russian criminal psychiatrists with close links to the state known as “narcologists” supported and propagated these ideas about drug use, upholding abstinence as the only appropriate treatment for drug addiction30. Narcologists still constitute a portion of Russian psychiatrists today and continue to oppose opioid

23.Jon Cohen, No Opiate Substitutes for the Masses of IDUs, 329 Science Mag. 165 (2010)24. United Nations, Office on Drugs and Crime Regional Office for Russia and Belarus, Illicit Drug Trends in the Russian Federation, available at http://www.unodc.org/documents/regional/central-asia/Illicit%20Drug%20Trends%20Report_Russia.pdf (last visited Mar. 3 2012)25. Id 26. Ibid27. Vladimir Zobnev & Yakov Gilinskiy, The Drug Treatment System in Russia: Past and Present Problems and Prospects, 1 Drg. Systms. Intl. Perspt. 120 (1998)28. Ibid29. Id at 11930. Tim Rhodes et al. Policy Resistance to Harm Reduction for Drug Users and Potential Effect of Change, 341 Brit. Med. J. 1-2 (2010)

VI. Negative Attitudes Towards Harm Reduction



VII. Legal Roadblocks

substitution therapy, arguing that the implementation of methadone in treatment is equivalent to the legalization of drug use, replaces one drug addiction with another, and would represent a failure to combat the criminal act of drug consumption. Critics also suggest that Western support for methadone is merely an opportunistic ploy to profit off of the Russian drug problem, since methadone is primarily produced in the West31. Finally, the Russian Orthodox Church and pro-enforcement legislators vocally oppose harm reduction strategies, which do not demand abstinence from drug use, but encourage safer drug practices32. However, these arguments are not fundamentally medical in nature, but merely reflect cultural attitudes towards the subject of drug addiction. In a nation that is no longer under complete authoritarian rule, enforcement strategies are no longer as effective, namely because trade barriers are open and there are neither funds nor support for constant surveillance. More importantly, abstainers have a remarkably high relapse rate, demonstrating that in order to reduce drug use and dependence new strategies must be introduced33.

On January 8, 1998, the Russian Federation passed the Law on Narcotics and Psychotropic Substances, which prohibits substitution therapy for drug dependency. The law lists methadone as a Schedule I drug, meaning it is entirely banned from circulation and administration in Russia34. Buprenorphine is listed as a Schedule II substance, meaning its circulation is restricted, but not banned. However, the law also prohibits treating drug addiction with Schedule II narcotics35. Naltrexone, a medication that completely blocks the effects of opioids, is the only pharmacotherapy for heroin dependence available, and while it has proven somewhat effective in preventing the transmission of HIV through intravenous drug use, it is expensive and fails to prevent high dropout and relapse rates36. Naltrexone implants cost 700 USD and last three months, an unaffordable sum in a country where the average wage is 560 USD per month37. Relapse rates remained high over the course of three trials, with patients desperately trying to experience the effects of opiate use despite the treatment, often leading to overdoses and depression38. Although the government supports abstinence-based treatment, there are only 1100 spaces available in free rehabilitation centers for over 2 million addicts, preventing millions of people from

31. Ed Holt, Russian Injected Drug Use Soars in Face of Political Inertia, Lancet. 14 (2010)32. Oleg Aizberg, Opioid Substitution Therapy in Selected Countries of East European and Central Asia, 3-11 (2008) 33. Evgeny Krupitsky, Use of Naltrexone to Treat Opioid Addiction in a Country inWhich Methadone and Buprenorphine Are Not Available, Curr Psychiatry Rep. 451 (2010)34. Oleg Aizberg, Opioid Substitution Therapy in Selected Countries of East European and Central Asia, 10-11 (2008)35. Id at 11 36. Evgeny Krupitsky, Use of Naltrexone to Treat Opioid Addiction in a Country inWhich Methadone and Buprenorphine Are Not Available, Curr Psychiatry Rep. 448, 452 (2010)37. Ed Holt, Russian Injected Drug Use Soars in Face of Political Inertia, Lancet. 13-14 (2010)38. Id


18 Spring 2012

undergoing the detoxification process in a treatment facility39. Technically, needle exchange programs do not violate the 1996 Russian Criminal Code, but legislators, as well as regional representatives from the Ministry of Health and Federal Drug Control Service fear the distribution of needles promotes drug use, which stymies funding and breeds distrust. Consequently, only 75 needle exchange programs exist in Russia40. Meanwhile, staff and clients of needle exchange programs are at risk of prosecution under the Criminal Code. Despite the fact that in December 2003 a note was added to Article 230 that formally recognizes needle and syringe programs, the code currently does not define “appropriate tools and equipment”, protect practitioners engaged in the distribution of injection paraphernalia, or protect clients in possession of syringes41. Additionally, clients and staff members may unintentionally violate the 2001 Administrative Violations Code by “using drugs without doctor’s orders”42 and “promoting...drugs, psychotropic substances, or of precursors thereof ”43. These regulations and legal ambiguities discourage involvement with needle exchange programs without providing alternative options, indirectly contributing to the HIV/AIDS epidemic.

The Russian Federation is experiencing one of the worst HIV/AIDS epidemics in the world, and its primary cause is intravenous drug use. Thus far, Russia’s attempts to combat both problems through law enforcement have proved unsuccessful, with HIV infection rates and the size of the drug market continuing to increase, demonstrating that waging an expensive “War on Drugs” is not worth the price. By overcoming negative cultural attitudes towards harm reduction strategies and moving away from the outdated treatment norms of the Soviet era, Russia can control the HIV/AIDS crisis and bring the opiate abuse crisis under some degree of control. The legalization of methadone and buprenorphine would diminish the demand for heroin and other opiates and keep narcotics addicts undergoing withdrawal in treatment, decreasing the relapse rate and reducing the spread of HIV by eliminating opioid dependency and providing clean needles, syringes, swabs, and gauze. Similarly, by amending Articles 228 and 230 of the 1996 Criminal Code, Russian legislators should allow for the expansion of needle exchange programs, which not only provide safe, clean injection tools, but also register drug users, enabling surveillance. Ultimately, by focusing on the drug user and his motives and needs rather than the drug trade itself, the Russian Federation can decrease demand for illegal opiates, not only reducing the crime rate, but also mitigating the HIV-IDU problem.

Alida Miranda-Wolff is a second-year in the college majoring in English and Law, Letters, and Society.

39. Oleg Aizberg, Opioid Substitution Therapy in Selected Countries of East European and Central Asia, 10 (2008)40. Tim Rhodes et al. Policy Resistance to Harm Reduction for Drug Users and Potential Effect of Change, 341 Brit. Med. J. 5 (2010)41. p. 9 st. 230 UK RF42. p. 6 st. 9 KoAP R43. p.6 st. 13 KoAP R

VIII. Conclusion



As a legal adult, one is empowered to join the armed forces, marry, and purchase firearms, but not to drink in a single one of our fifty states. The reason a twenty-year-old marine with a family is not allowed into a bar or a college student can’t buy a beer is the “New Deal” Court. In three separate decisions decided between 1936-1938, the Court used a broad interpretation of the “General Welfare Clause,” of Art. 1 Sec. 8 of the Constitution to radically expand the taxing, spending, and regulatory powers of Congress. As a result of United States v. Butler (1936), Steward Machine Co. v. Davis (1937) and Helvering v. Davis (1937), the principle of federalism is given only fleeting lip-service. The combination of the political pressure levied by President Roosevelt via his court-packing scheme, and massive public support for the “New Deal” programs, corralled the Court into a compromise far more destructive than the potential harm that it averted. In these three landmark cases, the Supreme Court not only dealt a significant blow to the federalist system, but also legalized the national subsidizing of special interest groups. Because of Butler, Steward, and Helvering, our government now subsidizes everything from albino squirrels1 to mohair farming2. Moreover, the decision in South Dakota v. Dole (1987), which allowed the federal government to withhold funding to induce states to adopt legislation rested on the precedent, was set by these three General Welfare cases.

James Madison believed that the General Welfare Clause was simply part of the introduction to the enumerated powers, and, therefore, conferred no powers independent of those listed. He wrote in Federalist No. 41, “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.” Both the Ninth and Tenth Amendments expose the dearth of logic in claiming that the General Welfare Clause represents a standalone power. The Ninth stipulates that, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” (italics my own). And the Tenth reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The former suggests a significant discontinuity in assuming that

1. Tom Coburn, The Pork Report, 2011, http://www.coburn.senate.gov/public/index.cfm/2011/9/the-pork-report.2. National Partnership for Reinventing Government, USDA01: End the Wool and Mohair Subsidy, http://govinfo.library.unt.edu/npr/library/reports/ag01.html. (last visited Dec. 31, 2011).

In Defense of Federalism: An Original-

ist Case for a Limited Interpretation of

the General Welfare Clause

By Spencer McAvoy

I. Special Interest Subsidies

II. Federalist Frame of Mind


20 Spring 2012

unenumerated powers exist for the federal government. That the Framers felt they needed to specify that enumerated rights did not preclude the existence of other rights implies that without explicit contravention, enumeration has a definite prohibitory nature. Similarly, the Tenth Amendment was clearly written to limit the extent of federal power.

The flaws of a broad reading of Art. 1 Sec. 8 are further exposed by the historical incompetence demonstrated by the Court in defining what sort of issues are of national or general concern. This supposed limiting standard, cited by Cardozo in Steward, was established in Butler, in which the Hoosac Mills Corporation challenged the Agricultural Adjustment Act (AAA) of 1933. Writing for the majority, Justice Roberts also became the first to establish the broad interpretation of the General Welfare Clause as legal precedent.3 The court struck down the act, not because of General Welfare or taxing objections, but because of the regulatory aspect of the AAA. Roberts also wrote, however, that, “The power to tax and spend is not without constitutional restraints. One restriction is that the purpose must be truly national. Another is that it may not be used to coerce action left to state control.”4 In Steward,5 and Helvering,6 unemployment and care for the elderly are held up as examples of national issues. But how are these not local issues? While there is unemployment in every state, as

3. United States v. Butler, 297 U.S. 87 (1936)4. United States v. Butler, 297 U.S. 87 (1936)5. Steward Machine Co. v. Davis, 301 U.S. 548 (1937)6. Helvering v. Davis, 301 U.S. 619 (1937)

United States citizens lose when the Court bypasses the amendment process and

expands the federal government in an unconstitutional manner.

Illustration: Harold Gao (2012)



well as elderly people, their populations vary from state to state7. Although these statistics are more recent, the National Bureau of Economic Research published a

study in 1960 demonstrating the vast disparities in population, per capita income, and proportion of agricultural and industrial labor force between the various states.8 These discrepencies demonstrate wide variation in living standards between different states and regions in the 19th and earth 20th centuries, suggesting deviation in population composition and economic well-being. This is exactly why the federalist system exists in the first place. Local governments are better acquainted with the precise needs of their constituency. Furthermore, local governments are more accountable to their voters and are unlikely to be able to get away with unnecessary spending and regulation. Examples of truly national concerns are the coinage of money, the provision of a standing army, patent laws, tariffs, and immigration legislation. It is not a coincidence that these powers are among those enumerated in Art. 1 Sec. 8.

Despite his interpretation of the General Welfare Clause, Justice Roberts’s opinion for United States v. Butler demonstrated a certain level of restraint completely absent from Steward, Helvering, or Dole. Though the Court did not strike down the Agricultural Adjustment Act for all of the right reasons, some of the reasoning it used was sound. Ultimately, the Court’s verdict was centered on the regulatory aspect of the AAA. Roberts, however, wrote that the regulation could not be separated from the tax, and that, furthermore, “A tax, in the general understanding of the term, and as used in the Constitution, signifies an exaction for the support of the Government. The word has never been thought to connote the expropriation of money from one group to another.”9 Though Roberts cites only one case in support of this claim, the extent to which precedent supported his interpretation of taxation is evident in the fact that income transfers simply did not exist on a national scale prior to the New Deal. Roberts continued, “We may concede that the latter sort of imposition is constitutional when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation. But manifestly no justification for it can be found unless as an integral part of such regulation. The exaction cannot be wrested out of its setting, denominated an excise for raising revenue, and legalized by ignoring its purpose as a mere instrumentality for bringing about a desired end”10 (italics my own). Not only did the Court chose to ignore this warning, it did not even acknowledge that it was creating a new definition of taxation when deciding Steward Machine Co. v. Davis.

Justice Cardozo’s opinion in Steward had many flaws, but his development of the meaning of coercion was particularly egregious. In this case, the Social Security Act was upheld by a vote of 5-4. The Court dismissed the challenge by an Alabama corporation to Titles IX and II, which detailed unemployment benefits and a tax and credit measure. This measure would allow employers in states that established their own unemployment legislation to credit away up to 90% of the excise. Plainly, the intent of the Act was not revenue, but compulsion. Writing for the majority, Cardozo held that, “...to hold that motive or temptation is equivalent to coercion is to

7. U.S. Bureau of the Census, P20-565,Geographical Mobility:2008 to 2009 (2011). 8. Richard Easterlin, Interregional Differences in Per Capita Income, Population, and Total Income, 1840-1950, http://www.nper.org/chaptersc2475, (1960).9. United States v. Butler, 297 U.S. 87 (1936)10. Ibid

III. Coercive Incentives


22 Spring 2012

plunge the law in endless difficulties.”11 In writing this, he was referencing a portion of the opinion written the previous year for Butler. He took this idea of coercion, mentioned only twice by Roberts and never as a crucial criterion, and ignored the rest of Roberts’s writing on the relationship between taxation and regulation. For example, Roberts wrote, “The farmer, of course, may refuse to comply, but the price of such refusal is the loss of benefits. The amount offered is intended to be sufficient to exert pressure on him to agree to the proposed regulation. The power to confer or withhold unlimited benefits is the power to coerce or destroy.”12 Clearly, the point of contention for Roberts is the idea that the government may incentivize certain behavior using taxes or subsidies. Furthermore, Justice Butler wrote a dissent for Steward in which he claimed, “...as federal demands similarly conditioned [to the Social Security tax and credit scheme] may be increased from time to time as Congress shall determine, possible federal pressure in that field is without limit.”13 Not only are Federal incentive schemes inherently coercive, but Cardozo’s claim that the Act, as written, does not represent coercion is specious. Once the Social Security Act’s tax and credit scheme was declared constitutional, Congress was free to increase the tax as much as necessary to impel the states to submit.

In Steward, Cardozo referenced his belief that the states were incapable of providing the necessary relief for the unemployed. However, in Helvering, which involved Title VIII or transfer payments to the elderly and retired, he explained his rationale more thoroughly. Cardozo claimed that, “States and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared to their neighbors or competitors.”14 Here, as in Steward, Cardozo reveals his lack of respect for federalism. His assessment of the effects of disparate tax burdens is entirely unfounded, as tax burdens at the time varied greatly from state to state, and the disparities have only increased with time.15 In 1932, just five years before Cardozo wrote for Steward and Helvering, only fifteen of the forty-eight states even had an income tax, and states that did not have income tax did not necessarily have higher property taxes.16 There is no indication in the data that states were overly worried about imposing higher tax rates than other states in their region, or even their neighbors. Utah, for instance, had an income tax, despite also having higher property taxes, as a percent of total property value, than its neighbor Colorado.17 Currently, the highest state tax burden for a family of three with an income of $50,000 is roughly five times the lowest state tax rate.18 It is doubtful that states would have enlarged disparities in their taxing schemes if such differences truly put them at an economic disadvantage. So, if states lacked such legislation, it was because their constituents did not demand it. This is not a fault; this is federalism at its finest.

Not only did Butler, Steward, and Helvering, deal a significant blow to federalism, but they set the precedent that allowed the verdict in South Dakota v. Dole. Citing all three of those cases frequently,

11. Steward Mach. Co. v. Collector, 301 U.S. 548 (1937)12. United States v. Butler, 297 U.S. 87 (1936)13. Steward Mach. Co. v. Collector, 301 U.S. 548 (1937), ( Justice Butler, Dissent)14. Helvering v. Davis, 301 U.S. 619 (1937)15. Government of the District of Columbia Office of Revenue Analysis, Tax Rates and Tax Burdens in the District of Columbia: A Nationwide Comparison (2004) (2005).16. U.S. Bureau of Foreign and Domestic Commerce, 72816-36-2, Statistical Abstract of the United States 1936 (1936).17. Ibid18. Government of the District of Columbia Office of Revenue Analysis, Tax Rates and Tax Burdens in the District of Columbia: A Nationwide Comparison (2004) (2005).

IV. Legal Ambiguities



the Court held that the Federal government had the power to withhold highway funds from South Dakota unless the state changed its drinking age. Specifically, South Dakota faced a 5% reduction in funding for maintenance of interstate highways if it refused to raise its drinking age to twenty-one. The Court did not even question whether or not Congress had the right to pursue such a strategy under the power granted by the General Welfare Clause. In fact, in a remarkable display of circular logic, Chief Justice Rehnquist wrote, “We can readily conclude that the provision is designed to serve the general welfare, especially in light of the fact that ‘the concept of welfare or the opposite is shaped by Congress. . . .’”(internal citation omitted). The quote at the end is from Helvering v. Davis. Congress, therefore, can promote the general welfare, and the general welfare consists of whatever causes Congress chooses to promote. Ultimately, the Court held that the 5% funding penalty was not significant enough to be considered coercive. The states, the Court argued, still had a choice of whether or not to change their drinking age. The fine implies that Congress has the power to pass regulations governing consumption of alcohol, and that South Dakota has violated these regulations; this is patently untrue. Under the U.S. Constitution, the people of South Dakota have the right to live much of their lives outside of the federal domain. They have the right to a local, accountable, and empowered state government. South Dakota v. Dole was a blow not only against states rights, but against the rights of U.S. citizens as well.

Thus, over the course of just two years the Court set the precedent for the erosion of state’s power to control their own legislation and legalized Federal transfer payments to special interest groups. In the Constitution, Congress is given neither the power to transfer income from one group to another, nor to impel the states to do so, yet there are thousands of examples of legislation that exist despite this fact. These cases are not settled, ancient history. Americans pay taxes that subsidize mohair farmers, corn farmers, albino squirrels, and thousands of other objects of congressional benevolence, because of Butler, Steward, and Helvering. They have also lost much of the power of their voices because their state cannot determine the drinking age within its borders, its speed limit, or its own educational policy. Finally, the No Child Left Behind act will impose significant, and ineffective sanctions on 82% of our public schools this year.19 The federalist system is not functioning as it was intended. It is one thing to treat the Constitution as a living document—this is productive and necessary. However, it is entirely insupportable to pervert constitutional language, such as the General Welfare Clause, to destroy systems the document was written to protect. It may be that Americans are no longer as distrustful of the federal government, and we desire an expansion of federal power, but this must be done through the amendment process in a way that clearly defines the federal domain. State governments are not capable of exercising the level of political pressure that President Roosevelt levied in the 1930’s, and so the states will continue to lose these battles. This is clear, because they have been losing for the past one-hundred years. Whenever the Court bypasses the amendment process and expands the federal government in an unconstitutional manner, not only do the states lose, but United States citizens lose as well.

Spencer McAvoy is a first-year in the College.

19. Michele McNeil, Are 82% of Schools ‘Failing’ Under NCLB, as Duncan Warned?, Education Week (Aug. 3, 2011), http://blogs.edweek.org/edweek/campaign-k-12/2011/08/are_82_of_schools_failing_unde.html.

V. Conclusion


24 Spring 2012

During the time of great turmoil that was the American Civil War, certain unscrupulous individuals exploited a distracted federal government. Emboldened by the prospect of little to no regulatory oversight by a government that was stretched to its breaking point, these individuals sold the government faulty products, deliberately failed to honor contractual obligations, and in other ways chose to defraud the federal government1; in doing so, they illicitly took money from the public treasury for personal gain. In response to this crisis, Congress passed the False Claims Act, which authorizes civil and criminal penalties for fraud committed against the federal government.

An important feature of the Act’s design is its authorization of qui tam suits. Simply put, the Act allows private citizens to sue fraudulent “persons” on behalf of the federal government and also entitles them to 30% of the proceeds from a successful suit.2 Congress recognized that detecting fraud is enormously difficult when an outside actor, like the government itself, is the one charged with the investigation; however, individuals who are in close proximity to the illicit conduct should detect it more easily. The hope is that those individuals will take the necessary action to police on behalf of the government.

However, what is of more interest due to its controversial nature is the question of the Act’s scope of liability. The Act’s reach is limited to “persons.” However, because the Act’s liability clause does not provide its own definition of “persons”, the question has consistently been raised as to what entities properly fall within this term. For instance, at the end of the twentieth century, many federal courts3 and many scholars4 came to opposing conclusions as to whether or not individual states could be defined as “persons” and could therefore be sued under the Act. This conflict over the Act’s construction eventually made its way to the Supreme Court, where it was resolved in Vermont v. United States ex rel. Stevens.5

In this case, Vermont was being sued under the Act by a qui tam relator for allegedly falsifying data that the EPA used in its decision to send the state federal

1. See, e.g., H. R. Rep. No. 2, 37th Cong., 2d Sess., pt. ii—a, pp. xxxviii—xxxix (1862). 2. 31 U.S.C. § 3729(a)(1) (2009).3. For an enumeration of the cases constituting this circuit split, see Petitioner’s Writ of Certiorari, Footnote 1,

p. 6.4. See, e.g. Jesse Choper & John Yoo, Who’s Afraid of the Eleventh Amendment?, 106 Colum. L. Rev. 213 (2006),

which conflicts with Evan Caminker, State Immunity Waivers for Suits by the United States, 98 Mich. L. Rev. 92 (1999).

5. Vermont v. United States ex rel. Stevens, 529 U.S. 765 (2000).

For a Stronger False Claims Act

By Adam Swingle

I. Introduction

II. Posture of the Case



grants.6 Seeking to avoid liability, the state proffered two arguments to the Court. First, Vermont contended that the term “‘person’ does not ordinarily include the sovereign States.” Since the statute’s “plain language” did nothing to change this order, Vermont asked the Court to assume that “States are not ‘persons’ who may be sued under the Act.”7 Secondly, Vermont argued that, even if the Court found that the term “persons” included the states, Vermont should be given immunity from the sweep of the Act due to the Eleventh Amendment’s doctrine of state sovereign immunity.8 A majority of the Court agreed with Vermont’s first argument, holding that the word “persons” in the statute could not include anybody other than individuals and corporations.9 Yet, a close analysis of the majority’s reasoning reveals the erroneous nature of its holding , and counsels against its further application.

As stated, the Court, in order to reach its conclusion, opted to engage in a statutory interpretation of the Act. Its analysis thereby focused on the statute’s definition of “persons.” When opening its discussion of this term, the majority notes that the courts have a “longstanding interpretative presumption that ‘person’ does not include the sovereign.”10 While the Court recognizes that this “presumption” is not a “hard and fast rule of exclusion”11, it then identifies an improper standard for determining when it is appropriate to discard this presumption.

The Court says that the presumption may be “disregarded only upon some affirmative showing of statutory intent to the contrary.”12 The Court supposedly derived this standard from the earlier case of United States v. Cooper.13 However, the relevant language, in its entirety, reads as follows: “[t]he purpose, the subject matter, the context, the legislative history, and the executive interpretation of the statute are aids to construction which may indicate an intent, by the use of the term, to bring state or nation within the scope of the law.”14 While an “affirmative showing of statutory intent” could include the first four of Cooper’s factors, it does not include the final factor: the “executive interpretation of the statute.” It is true that Cooper’s factors are not inherently dispositive as they are simply “aids to construction.” Yet, considering the executive’s position in this case, it is curious why the Court mischaracterized Cooper’s language in order to adopt a standard that expressly ignores the value of the executive’s opinion.

6. While the exact nature of these allegations is immaterial to this article, see, e.g., Vermont, supra, at 770 for a broader explanation.

7. See, e.g. Petitioner’s Writ of Certiorari, p. 6.8. See, e.g., Petitioner’s Brief on the Merits, p. 7.9. Vermont, supra, 529 U.S. at 787.10. Id., at 781.11. Ibid.12. Ibid.13. United States v. Cooper Corp., 312 U.S. 600 (1941).14. Id., at 605 (emphasis added).

III. The Court’s Statutory Interpretation


26 Spring 2012

Specifically, the executive in this case, through the Department of Justice, argued that states must be included in the Act’s construction of “persons.”15 If the Court had recognized the instructive value of the executive’s opinion under Cooper, it should have, pursuant to other controlling authority, afforded the executive’s interpretation a great amount of deference.16 The Court has explicitly recognized that the executive has the constitutional authority to make “policy choices-resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”17 Considering that the False Claims Act’s definition of “persons” is unclear and that the Department of Justice is charged with the daily administration of the Act, the Court should have viewed as controlling the Department’s policy judgment regarding the scope of the Act’s liability provision. One could speculate regarding the Court’s motives in misconstruing various authorities in order to avoid affording the executive with the deference it deserved; however such speculation is immaterial. All that is probative here is that the Court improperly discarded the executive’s opinion. And if the Court had given this opinion the respect it deserved, the Court could have more easily found that there was cause to disregard the interpretive presumption against including states in the definition of “persons.”

The Court then argues that, in another provision of the Act, Congress again used the term “persons” and decided, in this specific instance, to define the term to include the states.18 Drawing upon this fact, the Court concluded that, since Congress must have expressly chosen not to include this same definition – or any definition at all - in the relevant liability provision, it must have chosen to exclude states from liability.19 However, pursuant to the Court’s prior precedents, this conclusion is erroneous.

As pointed out by the lower court in its analysis of the issue, the Supreme Court has consistently held that if Congress used “the same word in more than one section of a statute…Congress meant the word to have the same meaning.”20 This rule of statutory construction is instructive here because, if followed, it would counsel that the term “persons” in the Act’s liability provision should be construed to include the states. Specifically, the liability clause is found in § 3730(b)(1). Nearby, the term “persons” is used in § 3729(a) and § 3730(a) and, in both instances, is defined to include the states.

So, when the Court states that the “absence” of a definition in the liability clause along with the “presence” of a definition in the surrounding sections means that the term “persons” must not include the states21, the Court is wrong. It has

15. See, e.g., Brief for the United States, p. 12.16. See, e.g., Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 17. Id., at 865-866.18. Vermont, supra, 529 U.S. at 784.19. Ibid.20. U.S. v. State of Vermont Agency of Natural Resources, 162 F. 3d 195, 205 (2nd Cir. 1998).21. Vermont, supra, 529 U.S. at 784.



disregarded the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.”22 One could still argue that it is not the position of the clauses that matters but, instead, their content. In other words, if the focus of each clause is entirely different, definitional parity between the clauses need not exist. However, all three of these clauses center on articulating when and against whom qui tam relators may sue under the Act. The focus of these clauses is exactly identical and therefore the definition of “persons” in each should be the same. In other words, since “persons” is defined in two of the clauses to include the states, it should be defined in the same manner in the third clause: the liability provision.

The Court closes its opinion by “buttress[ing ]” its holding with two other points “unnecessary to discuss at any length.”23 First, it claims to follow “the ordinary rule of statutory construction” that “if Congress intends to alter the usual constitutional balance between States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.”24 By saying this, the Court is effectively arguing that finding states liable under the Act would offend the concept

22. Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986).23. Vermont, supra, 529 U.S. at 787.24. Ibid. (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 78 (1989) (Brennan, J. dissenting)).

Vermont’s two claims for immunity from liability under the Act do not withstand

serious scrutiny.

Photo: Mike Castillo (2010)

IV. The Court’s Hidden Constitutional Analysis


28 Spring 2012

of federalism. Supposedly, since Congress expressed no concrete desire to do such a thing in its writing of the Act, states must not be held liable. Yet, this argument does not withstand scrutiny.

The argument is not valid because authorizing state liability under the Act would not alter the federal balance in the slightest; in fact, state liability here would only serve to enhance the goals of federalism. By joining the Union, the states consented to the federal government’s position of supremacy.25 In other words, the states collectively agreed to subordinate themselves to the wishes of the federal government when its wishes did not entrench upon their own constitutionally protected rights.

Thus it is without merit to say that authorizing qui tam suits against states would alter the balance of federalism. This is the case because when states choose to defraud the federal government, they rob the federal treasury, obstruct the constitutionally enacted directives of Congress, and place their interests above those of the federal government. By doing so, the states themselves assume a position of supremacy, say that they ultimately reign, and offend that original charter they signed. To say then that states must be shielded from liability in order to protect the doctrine of federalism lacks all merit. In reality, providing the states immunity from these suits would itself offend federalism since it would foreclose relief to the federal government when its rights, the rights that all of the states agreed to respect, have been violated.

The Court’s second “buttress” is its recognition of the judicial canon of avoidance, that statutes must be construed so as to “avoid difficult constitutional questions.”26 Notwithstanding this assertion, the Court makes a quick aside that it “doubt[s]” state liability under the Act would comport with the Eleventh Amendment.27 While the Court did not overtly center its analysis on this issue, this statement proves incredibly illustrative in providing an explanation for the Court’s strained statutory interpretation of the Act.

Taking this statement along with the Court’s earlier “presumption” against abrogating state sovereign immunity, it becomes apparent that the Court truly agreed with Vermont’s second argument. The Court’s statutory interpretation served as nothing more than a guise through which the Court could reach the conclusion it believed the Eleventh Amendment dictated. It reveals a Court wary of expressly resolving a constitutional question, of declaring allegiance with an interpretation of the Eleventh Amendment that had been frequently admonished.28 But, regardless of the Court’s motivations in applying the Eleventh Amendment, it is clear, in this instance, that such an application is improper.

25. U.S. Const. art. 2. cl. 2.26. Vermont, supra, 529 U.S. at 787.27. Ibid. (quoting Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)).28. See, e.g. Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201 (2001) (arguing that

the Eleventh Amendment allows for the improper disregard of federal law and obstructs due process of law); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L. Jrnl. 1425 (1987) (arguing that the Amendment disrupts the Founders’ intended order of federalism); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983) (arguing that the Amendment originally was properly quite circumscribed but has now been empowered far too extensively).



It is a truism that the Eleventh Amendment does not bar suits prosecuted by the federal government against states.29 This idea is based on the premise that, as stated earlier, when the states joined the Union, they recognized the superiority of the federal government. They voluntarily relinquished their claims to sovereign immunity against suits prosecuted by the federal government because they recognized, for the Union to function properly, the federal government must have a mechanism – here, a lawsuit - to enforce the supremacy of its prerogatives.

This is important in the case of the False Claims Act because it is also generally accepted today that qui tam relators – private citizens who sue under the Act on behalf of the federal government – are themselves agents acting on behalf of federal government and its interests.30 Since lawsuits under the Act can only be prosecuted by these qui tam relators and by the government itself, nowhere under this scheme is a truly private individual suing a state. In all cases, the federal government is the prosecuting party. As such, the states’ sovereign immunity is inapplicable; the states must be held liable under the Act. The Eleventh Amendment, much to the Court’s consternation, provides no bulwark against the states’ inclusion in the Act’s scope of liability.

It is clear, then, that Vermont’s two claims for immunity from liability under the Act do not withstand serious scrutiny. The Court attempted to protect the states from liability by way of a labored attempt at statutory interpretation, an attempt the Court possibly was aware was incapable of success. But the Court pursued this line of analysis anyway, since it felt the Eleventh Amendment dictated that the states be shielded from liability, even though the Court was unwilling to publicly embrace that controversial constitutional argument. Though the Court was comfortable with such an application of the Eleventh Amendment, it is clear that its application was most certainly improper. As a result, the Court or Congress should recognize the error made in Vermont and remove that blotch from the pages of the Supreme Court Reports by authorizing state liability to qui tam suits authorized by the False Claims Act.

Adam Swingle is a first-year in the College majoring in History.

29. See, e.g., Caminker, supra at 102-113 and, also, United States v. Texas, 143 U.S. 621 (1892).30. U.S., supra, 162 F.3d at 202 (citing a series of cases to support the proposition that “the Government remains

the real party in interest” in False Claims Act cases prosecuted by a qui tam relator).

V. Conclusion


30 Spring 2012


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