Main Content

Vol 47. No. 1 Fall 2022

ARTICLES

Medical Martial Law: Towards a More Effective Pandemic Policy

John W. Bagby, Robert J Aalberts, and Chad G. Marzen............................................................... 1

This article synthesizes the political-economic geography regime with existing political subdivision modeling to predict the legitimacy of various authorities that might order Medical Martial Law. Such “districting” authority, as limited by the Constitutional right to travel, reveals a range of authorities to declare and enforce remediation of emergencies under various legal frameworks within defined geographic areas. The primary interdisciplinary approach used here is public policy, political economy and economic geography. We demonstrate how the latter contributes greatly. First, the science of spatial understanding is offered by physical geographers for the physical barriers that shape political borders and may define contagion vectors based largely on traditional travel patterns. Second, economic geography provides insight into the size, shape and extent of regional trade areas within which contagion vectors may be predicted. Third, the policy reach of various political entities and subdivisions is considered to yield insights fusing political geography with political science through the law. In conclusion, the article analyzes the relationship between Medical Martial Law and business interruption and how private enterprise initiation and enforcement of remedial counter-measures to COVID-19 furthers a compromise in a “Grand Balance” between economic and personal liberty and pandemic suppression.

Decertification of Qualified Opportunity Funds

Adam Wallwork............................................................................................................................ 79

In this article, the authors discuss how a self-certified Qualified Opportunity Fund (“QOF”) may relinquish that status through the QOF’s voluntary self-decertification or an involuntary decertification under the anti-abuse rules, and the consequences to tax-deferred investors in a QOF of either such decertification. It also discusses the recent guidance on QOF self-decertification, which initially appeared as a simple check-the-box election on line 6 of the November 6, 2020 draft of IRS Form 8996, Qualified Opportunity Fund, only to have that line removed entirely from the final version of that form. It also explores how the failure of the Internal Revenue Service to promulgate forms, instructions, or other guidance regarding the QOF’s voluntary self-decertification election necessitated change to the final regulation in “correcting amendments” issued on August 5, 2021, and how the current uncertainty surrounding the voluntary decertification process has impacted qualified opportunity zone funds and businesses that, due to the economic changes wrought by COVID-19, have lost their raison d’etre.

The Constitutionality of Texas' Executive Orders Impacting the U.S.-Mexico Border

Beckett Cantley and Geoffrey Dietrich .................................................................................. 125

“Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes.” The Supremacy Clause “provides a clear rule that federal law shall be the supreme Law of the Land.” Under this principle, Congress may preempt state laws that interfere or conflict with federal laws. United States courts have held that issues of immigration, and as they relate to national security or border security, are clearly federal and that states are not to enact laws in conflict, or which interfere with federal immigration law or policies. Texas, a state sharing a border with Mexico, profoundly disagrees and has expressed extreme dissatisfaction with the federal government’s handling of the immigration issues and migrant surges at the Texas-Mexico border. Recently, a federal court relying on the Supreme Court decision in Arizona v. United States, held that a Texas law restricting the transportation of migrants conflicted with the federal government. In order to deal with Texas’s border situation, the Texas Governor issued a disaster declaration, and several states sent their own state law enforcement officers to assist Texas in its border operations. Though the outcomes of those legal challenges are still pending, this article analyzes the legality and possible outcomes of the actions of the states involved.

 

NOTES

Revising the Scope of the Fourth Amendment Community Caretaking Exception of Behalf of Older Adults

Mackenzie R. Lyons ........................................................................................................ 149

The United States Supreme Court has consistently held that citizens have heightened privacy rights in their homes. Using this reasoning as its justification, in Caniglia v. Strom, the Supreme Court held that the police cannot enter a home under their community caretaking powers. The Fourth Amendment’s Community Caretaking Exception gives police and other emergency services the ability to render aid and protect the public, a function that is completely detached from criminal investigatory powers.

By limiting this exception and not allowing it to apply within a home, the Court is placing potential risks on the health and safety of the older adult community. This community is more prone to severe injuries after falls and has heightened vulnerabilities. These vulnerabilities were addressed in the concurring opinions to Caniglia as well as the oral argument. The potential problems in the application of the holding to situations involving older adults were recognized; however, there were no indications of resolution to these issues in the Court’s majority opinion or holding.

Based on the vulnerabilities of the older adult community becoming more prevalent, especially in public health crises like the COVID-19 pandemic, society and the older adult community would benefit from a refinement of the federal case law that currently limits the scope of this exception. This refinement would include changing the test for entry under the Community Caretaking Exception to consider factors including age and vulnerabilities of a particular community, such as those of older adults. However, society fears that police will abuse their caretaking powers and use the powers as a pretext for an investigation. This note explores the benefits and dangers of changes to the scope of the Community Caretaking Exception, as well as ideas on how the Court can refine the case law while keeping the older adult community and their vulnerabilities in mind.

Into the Shadows: A Rule for the Prevention of Shadow Trading

Randy L. Koonce ....................................................................................................... 191

For the first time, market regulators in the United States are pursuing an individual for “shadow trading,” a form of insider trading relying upon comparator companies. Despite the Securities and Exchange Commission's status as a regulatory body, the agency has foregone the adoption of a formal rule against shadow trading. It is instead attempting to enlarge the scope of the common law's present definition of insider trading to a host of dangerous consequences. Rather than leave an unsuspecting public to guess whether conduct is prohibited, the agency should adopt a formal rule. This note examines the practicality of doing so and offers some suggestions about how such a rule should look.

Termination of Parental Rights and an Assessment to Subsequent Children in the State of Illinois

Kayla C. Ranta .................................................................................................................. 221

In the United States, it is considered a fundamental constitutional liberty for a parent to be able to control the upbringing of their children. Under this construction, unless a parent’s care reaches the extent of abuse or neglect, affecting a child’s health, welfare, or safety, they should be free to parent their child(ren). Yet, despite this construction, a finding of parental unfitness as to one child will allow an Illinois family court to terminate the parental rights of that individual toward all subsequent children. This process does not currently have any exceptions for parents whose circumstances have changed or who have since been rehabilitated.

By having this automatic termination of parental rights to subsequent children, the Illinois Department of Children and Family Services, and the foster care system overall, places even more children into the foster care system, which by and large cannot support such a large number of children under the current scheme. Moreover, by failing to consider changed circumstances, or rehabilitative efforts put forth by parents, the system may be taking children away from capable and willing families. Therefore, a new assessment procedure should be put in place.

The proposed procedure involves implementing a state-wide assessment of rehabilitative efforts, time elapsed, and other factors. The State and society are afraid that leaving children with parents who have previously been deemed unfit will lead to unnecessary harm to future, subsequent children. Although in some cases, this assumption may be true, in other cases, parents may turn their lives around by rising out of poverty, treating a substance abuse problem, or leaving an abusive relationship—these things need to be considered. This note brings to light the benefits that a rehabilitative assessment could have on the foster care system, both in the State of Illinois and nationally, given the current number of children within it.