Current Issue (Volume 49)

The Affordable Care Act
ACA on Life Support: The Affordable Care Act, Medicaid Expansion, and Reckoning with Sebelius During the COVID-19 Pandemic
Kyle J. Kilkenny
49 Rutgers L. Rec. 81 (2021) | WestLaw | LexisNexis


In an effort to address the cost of healthcare and the number of uninsured people in the United States, Congress passed the Patient Protection and Affordable Care Act, commonly called the “Affordable Care Act,” “ACA,” or “Obamacare,” in 2010. Signed into law by President Barack Obama, the Act required states to expand Medicaid coverage to various segments of the population not previously covered by the program, or states may lose all of their federal Medicaid funding. Additionally, a provision known as the “individual mandate” required those uninsured by the government or their employer to either pay a small penalty to the Internal Revenue Service or purchase private insurance. In 2012, a group of 26 states and other parties sued Health and Human Services Secretary, Kathleen Sebelius, and related parties regarding the constitutionality of the statute. In a 5-4 decision, the U.S. Supreme Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), found the individual mandate constitutional under Congress’s power to tax but found the Medicaid expansion provision to be unconstitutionally coercive under Congress’s spending power.

This note will seek to further contextualize Justice Ginsburg’s dissent, which argued the Medicaid expansion provision should not have been struck down by the majority, as the states are merely expecting Medicaid funds from Congress, but they are not at all entitled to them if they do not meet the criteria set by Congress, in the present moment. This note will explore the COVID-19 pandemic and the role that the states and the federal government ought to play in ensuring the general welfare of the nation is protected, primarily by either expanding Medicaid or otherwise ensuring free healthcare in response to the greatest economic and health crisis in over a century. To achieve this, the note will revisit the ACA and the Supreme Court’s spending clause analysis given the changing dimensions of the healthcare debate, with employer-sponsored insurance enrollment declining (along with overall employment) and government insurance and subsidies for COVID-19 testing dominating the market, and analyze, through a policy-oriented lens, whether states ought to take the lead in closing the so-called “coverage gap,” or whether Congress should have the power to expand insurance in a cooperative federalism model, especially in a deadly pandemic emergency which was not at all contemplated by the Court in Sebelius.

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LGBTQ+ Equality
The Future of LGBTQ+ Equality After Obergefell and Bostock
Victoria D. Manuel
49 Rutgers L. Rec. 60 (2021) | WestLaw | LexisNexis


The Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County are justly regarded as landmark decisions in American jurisprudence and, more importantly, significant milestones in the history of lesbian, gay, bisexual, transgender, and queer (“LGBTQ+”) Americans. However, these important decisions are not the end of the movement for LGBTQ+ equality, and many more obstacles remain for the LGBTQ+ community.

This article will begin with an overview of the legal history of sexual orientation and gender identity in the United States; the recognition of and enactment of constitutional and civil rights by courts and legislatures; and the discrimination performed by each. The next part is an overview of the future of sexual orientation and gender identity law, including the Equality Act and other legal issues.

The thesis of this article is to state the urgent need for passage of the Equality Act and the introduction and passage of other legal devices that will relieve the undue burdens still faced by ordinary LGBTQ+ Americans after the Supreme Court’s decisions in Obergefell v. Hodges and Bostock v. Clayton County.

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Interstate Compacts
The Nostalgia of Eternity: Interstate Compacts, Time, and Mortality
Sheldon H. Laskin
49 Rutgers L. Rec. 25 (2021) | WestLaw | LexisNexis


“Although the idea of permanence appears to be traditionally associated with legislation, law is inevitably constrained by time. Laws are doomed to face a destiny like the mythological character Kronos: they overthrow existing laws, have a period to reign, but are destined to be overthrown again by the next generation. Like Kronos, legislators often experience the ‘nostalgia of eternity,’ refusing their mortality as well as that of their rules.” [2]

An interstate compact designed to promote uniformity in state taxation would appear to have little in common with an interstate compact designed to fight corruption in the Port of New York.[3] Yet recent cases concerning these two very different subjects illustrate that interstate compacts can experience similar aging issues that can create an existential crisis decades after their formation. Who could have anticipated when the New York Waterfront Commission Compact was adopted in 1953 that the proliferation of containerized shipping would cause New Jersey, one of the Compact’s two parties, to attempt to withdraw from the Compact in 2018, leading to litigation over its right to do so?[4] And who would have predicted when the Multistate Tax Compact was formed in 1967 that the adoption of an income tax apportionment formula by a non-party state would, three decades later, cause the Compact states to abandon a different apportionment formula that had been integral to the Compact from its inception, leading to multiple lawsuits challenging their authority to do so?[5]

It should not be surprising that the passage of time can cause even the most well-reasoned and carefully written compact to become destabilized in a much different economic or legal environment than existed when it was written. When that occurs, it isn’t easy to “fix” the compact to address the problem. Interstate compacts are often considered contracts.[6] If they were private contracts, the parties to the contract would always be free to modify it. But because interstate compacts are also statutes, modifying the compact is no easy task. First, the compact must provide a method to modify it. And then the legislature in each state would need to enact a statute that makes the change. The situation is even more complicated if the compact is a congressionally approved compact like the Waterfront Compact. Such compacts constitute federal law.[7] Congress would usually need to approve any change to such a compact.[8] If the compact provides no mechanism to resolve the problem, the compact may face an existential crisis – states may determine the only solution is to withdraw. This is precisely what happened with the Waterfront Compact and the Multistate Tax Compact. This Article explores the derivation, causes and – at least in the case of the Multistate Tax Compact – the resolution of such a crisis.

While it is not possible to anticipate all the circumstances that could adversely affect a compact’s continuing viability, it is possible to include certain tools in the compact that can help the states more nimbly adapt to those changed circumstances than through the vagaries of litigation. The Article will explore some of those tools.

Part II of the Article will recount a brief history of the New York Waterfront Commission Compact and the Multistate Tax Compact. Part III will describe the developments that led to the litigation that threatened each Compact’s continuing viability. Part IV will discuss the recent litigation that threatened both compacts and the deficiencies in each compact that made litigation likely. Part V will suggest some legal tools that future compact drafters might consider to reduce the likelihood of such destabilizing litigation occurring. Part VI will offer a brief conclusion.

[2] Antonios Kouroutakis & Sofia Ranchordás, Snoozing Democracy: Sunset Clauses, De-Juridification, and Emergencies, 25 Minn. J. Int’l L. 29, 49–50 (2016) (footnotes omitted).

[3] U.S. Const. art. I, § 10, cl. 3. (providing “No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.”). Justice Story defined an “agreement” or “compact” to refer to “private rights of sovereignty; such as questions of boundary; interests in land situate in the territory of each other; and other internal regulations for the mutual comfort and convenience of states bordering on each other.” 2 Story, Commentaries on the Constitution of the United States (5th ed. 1891), sec. 1403, as cited in Comment, The Power of the States to Make Compacts, 31 Yale L.J. 635, 636 (1922). Notwithstanding the seemingly mandatory requirement of congressional consent, the Supreme Court has made clear that many such agreements or compacts among states do not require congressional approval. See, e,g., Virginia v. Tennessee, 148 U.S. 503 (1893); New Hampshire v. Maine, 426 U.S. 363 (1976); United States Steel Corporation v. Multistate Tax Commission, 434 U.S. 452 (1978). Interstate compacts do not require congressional consent if they do not “enhance the political power of the member States in a way that encroaches upon the supremacy of the United States.” United States Steel Corp., 434 U.S. at 472.

[4] Waterfront Commission of N.Y. Harbor v. Murphy, 429 F. Supp. 3d 1 (D.N.J. 2019), rev’d and remanded for dismissal, 961 F. 3d 234 (3d Cir. 2020),  cert. denied No. 20 – 772, — S. Ct. –, 2021 WL 5434352(2021).

[5] Moorman Manufacturing Company v. Bair, 437 U.S. 267 (1978); Gillette Commercial Operations v. Dep’t. of Treasury, 878 N.W. 2d 891 (Mich. App. 2015), appeal denied 880 N.W. 2d 230 (MI 2016), cert. denied 137 S. Ct. 2157 (2017); Gillette Company v. Franchise Tax Board, 363 P. 3d 94 (CA 2015), cert. denied 137 S. Ct. 294 (2016); Kimberly-Clark Corporation v. Commissioner of Revenue, 880 N.W. 2d 844 (Minn. 2016), cert. denied 137 S. Ct. 598 (2016); Graphic Packaging Corp. v. Hegar, 538 S.W. 3d 89 (Texas 2017); Health Net. Inc. v. Dep’t. of Revenue, 415 P.3d 1034 (OR 2018).

[6] See, e.g., Green v. Biddle. 21 U.S. (8 Wheat.) 1, 92-93 (1823).

[7] Cuyler v. Adams, 449 U.S. 433 (1981).

[8] Congress has in effect preauthorized New York and New Jersey to amend the Waterfront Compact by both states enacting mutual legislation. Waterfront Commission Compact, N. Y.-N. J., Pub. L. No. 83-252, 67 Stat. 541 (1953).

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Anti-Slapp Statutes
The Need for Uniform Exemptions in State Anti-SLAPP Statutes
Tanvi Valsangikar
49 Rutgers L. Rec. 1 (2021) | WestLaw | LexisNexis


Strategic lawsuits against public participation (SLAPPs) are baseless lawsuits that weaponize the judicial system to chill critics’ exercise of free speech on matters of significant public concern by burdening them with pointless litigation and escalating legal costs. Many states have rightly recognized the danger of SLAPP suits to citizens’ First Amendment rights of free speech and expression and have responded by passing laws, called anti-SLAPP statutes, that allow for the swift dismissal of these frivolous suits.[2] These statutes protect citizens’ right to free speech in any type of forum on any issue of public importance by providing mechanisms for expedited dismissals of SLAPP suits for defendants and imposing mandatory penalties of attorney fees or litigation costs for plaintiffs who cannot meet the burden of proving their claims have a valid legal foundation. 

But while some state anti-SLAPP statutes are intended to protect First Amendment interests, they can paradoxically have the effect of preventing people who need to turn to the courts to vindicate legal interests from doing so. Some of the anti-SLAPP statutes’ broad definitions of protected activity may inadvertently discourage plaintiffs with meritorious claims from utilizing the courts, as the scope of protected activities appears to leave little room for plaintiffs to raise a valid complaint and lends the statute to misuse by opportunistic defendants. For example, in Hunter v. CBS Broadcasting, Inc.,[3] the defendants eluded a legitimate employment discrimination claim by exploiting the California anti-SLAPP statute’s broad requirement that protected activity must be of interest to the public. In response to Hunter’s contention that CBS had not hired him for a weatherman position because he was older and a male, CBS was able to misuse the anti-SLAPP statute to argue that a television station’s selection of weather news anchors qualified as an issue of public interest because weather reporting itself was an issue of public interest.[4] The California appellate court accepted this interpretation of the statute to hold that CBS’ activity was protected by the First Amendment and remanded the case for the trial court to consider whether Hunter had demonstrated a reasonable probability of prevailing on the merits of his claims.[5]

The Hunter case is not the only instance of defendants misusing anti-SLAPP motions. Indeed, one California Supreme Court decision observed that the anti-SLAPP motion would soon be used as a cure-all to circumvent legitimate cases in which the motion was never intended to apply.[6] Thus, this note compares various state anti-SLAPP statutes to analyze how successfully they protect defendants from frivolous lawsuits and the extent to which they unwittingly prevent plaintiffs with legitimate civil claims from pursuing redress. Drawing on this analysis, the note proposes a uniform set of exemptions that seeks to protect financially insecure litigants who are most vulnerable to SLAPP suits and who do not have the resources to defend themselves from baseless claims. 

[2] State Anti-SLAPP Laws, PUBLIC PARTICIPATION PROJECT, (last visited Dec. 31, 2020) (identifying the scope of anti-SLAPP laws in Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia and Washington).

[3] Hunter v. CBS Broadcasting, Inc., 221 Cal. App. 4th 1510 (Cal. Ct. App. 2013).

[4] Nina Golden, SLAPP Down: The Use (and Abuse) of Anti-SLAPP Motions to Strike, 12 RUTGERS J. PUB. POL’Y 1, 28 (2015).

[5] Id.

[6] See Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564 (Cal. 1999) (Baxter, J., dissenting).

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