The Unconstitutional Implications of the Two-Senator-Per-State Rule

By: Ashley Ravid

Edited by: Dheven Unni and Maddy Bennett

It is to the detriment of our democratic future as a nation that many citizens and politicians alike consider it blasphemous to discuss altering our governmental systems from the original format laid out in the Constitution. Though the United States’ system of checks and balances remains vital to our republican system of government, the role of the Senate in unequally representing our citizens in myriad ways is antithetical to the spirit of the Constitution and to voting rights in the United States. Reapportioning the Senate is not only the Constitutional path forward, but also represents the nation’s best chance to adapt for modern times and conceptions of law, order, rights, and justice. 

1.Unequal Representation in the Senate 

A.Statistical Republican Skew 

One highly salient issue facing the American public’s relationship with the legislative branch is a pattern of Democrats claiming fewer House and Senate seats in elections than the proportion of votes they received would suggest. Redistricting post-2010 has only increased the severity of this statistical disconnect. This skew is so impactful on election results that researchers and political analysts estimate how many percentage points Democrats will need to beat Republicans to take control of either the House or Senate. In 2018, researchers predicted Democrats would need to win by 4 to 7 points to take a majority of seats in the House.[1] Though this “seats bonus” has favored Republicans in the last four elections, the Brookings Institution (a public policy nonprofit organization) notes that whichever party wins the congressional majority benefits from this boost, netting an average “seats bonus” of 5.6 percentage points.[2] Slate explains the pervasiveness of this partisan skew and how impactful it has become on the legislative system as a whole: “Republicans held over 55 percent of the seats in the House after 2016’s elections despite winning only 49.9 percent of the popular vote. This mismatch is nothing new. It’s a function of not only partisan redistricting processes, but also the fact that Democratic and Republican voters wouldn’t be evenly distributed even absent gerrymandering.”[1] This widening disproportionality between votes cast for a party and the proportion of representatives from that party who actually take office poses judicial, legal, ethical, and Constitutional questions about why nothing has changed to combat voting skew despite widespread acknowledgement of its existence.  

2. Wesberry v. Sanders 

Constitutionally, every citizen’s vote should carry equal weight, a precedent initially set by the Supreme Court’s decision in Wesberry v. Sanders, 376 U.S. 1 (1964). In that case, the Court ruled not only that congressional districting and voting systems fall under legislative branch justiciability, but also established that the Fourteenth Amendment of the Constitution guarantees citizens the right to have their vote matter just as much as another. The Court held that “construed in its historical context, the command of Art. I, § 2 that Representatives be chosen ‘by the People of the several States’ means that, as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's.”[3] Though in this instance the votes being discussed are those for the House, the same principle should logically apply to votes cast in elections for the Senate; both Article I and the Fourteenth Amendment support this conclusion. The purpose of the government is to serve and represent its people and their best interests. If any branch of the government fails to uphold these basic duties, action should be taken to rectify this divergence. In this case, reasonably equitable districting must be guaranteed so that the proportion of Senate seats won by each party in elections remains proportional to the share of votes received. Furthermore, the United States has expanded from 13 to 50 states in the centuries since the Constitution was written, causing a 284.6% increase in Senators. This dramatic increase has widened inequality by granting states with smaller populations increasingly disproportionate power within the legislative branch.  

3.Unequal Weight of Citizens’ Votes 

A memo released by Data for Progress, a progressive policy think tank, compiles data and declaims the Senate as an “irredeemable institution.”[4] Though the use of such harsh language may seem excessive in a traditionally patriotic sense, the data presented does suggest deep-rooted issues inherent to the current structure of the Senate. Smaller states are more reliant on federal funding than larger ones and tend to have smaller immigrant populations and larger white populations. A statistical analysis of the voting population based on data from the U.S. Census Bureau shows that the weight of a vote by a citizen in a larger state is drastically reduced compared to the vote of a citizen in a small state. Essentially, “This means that instead of one person in California counting as one person in the national total, one person in California would count as only one-fifth of a person. Each person in North Dakota counts as eight people, each person in New York as one-third of a person.”[5] Particularly concerning is that this skew of uneven vote weighting through Senate representation drastically favors white populations, particularly non-college educated whites.  

Though people of color and white populations do not necessarily have different voting preferences or political opinions, analysis shows that non-college-educated whites vote more frequently for conservative candidates and platforms—such as opposing gun control—than people of color do. In summary, “The Senate amplifies representation for whites at the expense of representation for people of color. The Senate overweights the votes of non college-educated whites to such a substantial degree that they become an effective majority of the voting-eligible population. In consequence, the Senate will discount the political preferences of people of color, and amplify the political preferences of whites.”[5] As the country’s population has diversified, the growth of nonwhite populations has not been distributed across the country evenly, as immigrant and nonwhite populations tend to reside in larger, more liberal-leaning states. The lowered statistical voting impact of mainly nonwhite voters will only be exacerbated by this inequality. Gabriel Yglesias describes the growth of this inequity over the centuries: in 1790, “the largest state...was about 12.6 times as big as the smallest state, and the ratio was even lower among free people. Today, the smallest state is Wyoming, and the state of Washington has about 12.6 times as many people...Illinois has 22 times Wyoming’s population. Texas is nearly 50 times as big (and growing fast). And California is a stunning 68 times as large.”[6] The Constitution is clear: each state will be represented by two Senators in order to guarantee fair representation of all states in Congress. The House is intended to compensate for this variation of populations by allotting representation to states based upon their citizenship. However, in a bicameral system where having support from both houses of Congress is almost always essential to passing key legislation, such an extreme deviation from equal representation has concerning implications for a country founded on the principle of “no taxation without representation.” 

4.Gaffney v. Cummings Threshold 

Gerrymandering remains a controversial and not-wholly-adjudicated issue for both state and federal governments, particularly in relation to the Fourteenth Amendment. Part of the reason is that it is difficult to draw perfectly equal districts within a state or county to ensure equal representation. Still, various courts across the country have enacted rulings to stipulate how much deviation is permissible in redistricting. Justice Brennan of the Supreme Court, in his dissent of the Court’s opinion in Gaffney v. Cummings, 412 U.S. 735 (1973) wrote that according to Court precedent, “deviations in excess of [10%] are apparently acceptable only on a showing of justification by the State.”[7] In the intervening years, Court interpretations of districting thresholds have typically followed this unofficial rule. A deviation of 68 times—the amount that California’s population is greater than Wyoming’s, despite their equal representation in the Senate—appears repugnant to the spirit of such a threshold. While it is important to note that this decision is intended to apply to states, the Court has established precedent to make similar decisions on the legislative branch, particularly the House (see Wesberry). Many cases cited in this article are intended to apply to states or the House, specifically exempting the Senate because it was written into the Constitution to fairly represent states rather than people. Yet what is a state made of if not its people? What is the United States made of if not its people, regardless of what specific state they reside in? It seems inadvisable and impractical to write off enacting similar thresholds for equal representation in the Senate simply because of tradition, even if that tradition originates with the Constitution.  

5.One Person, One Vote 

A. Reynolds v. Sims 

Further evidence for the necessity of Senate reform and the authority to do so is found in the case Reynolds v. Sims, 377 U.S. 533 (1964). In their ruling on the reapportionment of Alabama State House and Senate districts, the Supreme Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a [substantially equal] population basis.”[8] When Alabama attempted to justify its system through comparison to the composition of the federal Senate, the Court replied that “the historical circumstances which gave rise to the congressional system of representation, arising out of compromise among sovereign States, are unique and without relevance to the allocation of seats in state legislatures.”[9] However, in the very same ruling, the Court held that “Legislators represent people, not areas,” and “revision [of districts] less frequent than decennial would be constitutionally suspect.”[10] It has been over 230 years since the last time our federal Senate districts were ‘revised.’ The two-per-state rule has not yet been altered from the original framework of the Constitution—significantly longer than the Court’s suggestion of reapportionment every 10 years—and should therefore be considered “constitutionally suspect.” 

Despite stating that the federal Senate is historically exempt from these principles, the Reynolds holding also stipulates that “The right of suffrage is denied by debasement or dilution of a citizen's vote in a state or federal election” and that “Considerations of history, economic or other group interests, or area alone do not justify deviations from the equal population principle.”[11] There are clear contradictions here as the Court says that the Senate’s Constitutional history render it immune from changes even though statistics clearly show that it dilutes and thereby “[denies] the right of suffrage,” and also states that “[historical] considerations” should not be a barrier to equal representation among legislative districts. With this logical fallacy acknowledged, the next consideration is whether anything should be done to address the issue. Fortunately, the Reynolds ruling answers this question as well: “Courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.” [12] A reasonable interpretation of this decision is that the Senate in its current format is incompatible with the spirit of the Constitution and its guarantee of voting rights—and it is the duty of the Supreme Court, as well as the executive and legislative branches, to correct this offense. The right of the people to have their votes matter equally is more important than the weight of a state’s influence on the federal government and the country as a whole.  

6. The Great Compromise 

To some, the idea of questioning the framework of the government as laid out in the Constitution is seditious. At some point, however, it becomes illogical to not question whether a system of government laid out hundreds of years ago—years before the modern semaphore telegraph or steam locomotive had even been invented—is the ideal structure to represent and serve our populace in the modern age. Even at the time of writing, some of the Framers of the Constitution expressed concerns about the makeup of the Senate, which had been created to appease the interests of small states as part of the Great Compromise of 1787. Alexander Hamilton, one of the original framers of the Constitution, wrote in Federalist Paper No. 22: “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York… Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail… this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense.” James Madison and George Washington shared similar reservations, but considered adopting the unequal distribution of Senators a necessary evil in order to gain the support needed to pass the Constitution as a whole.[13] As a society, the United States tends to regard the Framers with near-deified status; and as the decades and centuries have passed, we have begun to consider the original Constitution to be a sort of infallible document, establishing the ideal and only format of government that the United States should ever have. Even as they wrote the original Constitution, however, its authors knew that the text was not without flaws or necessary compromises; it is not an illogical leap to suppose that they assumed future generations would take up the mantle of redressing issues with the document as such problems arose. The Senate has never not been a problem—it is an inherent challenge to not only the “one person, one vote” precedent established in Reynolds, but also to the definition of suffrage as a whole. A patriot should want the United States to thrive both now and in the future; if one of the best ways to ensure this is to revise the makeup of the Senate, refusing to do so seems more un-American than clinging to the two-Senator-per-state rule.  

7. Conclusion  

Depending on to which philosophy of legal interpretation an individual subscribes, their reaction to the idea of changing the makeup of Senate representative apportionment will vary—as will their opinions of how such changes can or should be enacted if it proves possible. As the first step is successfully advocating for some form of change to the Senate as necessary, the exact mechanics of how such a structural overhaul can be arranged are not immediately pressing. Scholars who have studied the subject, however, have come up with a variety of possible solutions. One such possibility published by Professor Eric W. Orts of the Wharton School at the University of Pennsylvania, suggests that the Senate be made up of 110 members; each state will retain at least one Senator, while the remainder is allocated to different states based on population. Orts also provides theoretical mechanics for how such reform could be achieved.[14] Attorney and writer Simon Barnicle suggests that adding new states to the country (namely the District of Columbia and possibly Puerto Rico, though the latter’s possible statehood presents other practical and moral challenges) will help balance the minority rule that sees partisan vote skews worsening as more Americans move to a handful of states which are already underrepresented in the Senate.[15] Regardless of which, if any, solution sounds most appealing, some degree of change to our government is inevitable. This is not the same United States that was founded over two hundred years ago, and it is long past time that we acknowledged this as a nation. The U.S.’s rigid conformity to the exact form of governance laid out in the Constitution, a document hundreds of years old, undermines the very premise of our republican government and the democratic voting process as a whole. Our best path forward is to take prescient action to get ahead of worsening voting skew rather than attempting to retroactively redress the challenges it poses to the sanctity of voting rights for all United States citizens. 

NOTES:

1. Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html. 

2. Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/. 

3. Wesberry, 376 U.S. at 18 

4. McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution. 

5. Ibid., 5 

6. Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress. 

7. Gaffney, 412 U.S. at 772, 777, 778  

8. Reynolds, 377 U.S. at 568 

9. Ibid., 571-577 

10. Ibid., 562 

11. Ibid., 554-555 

12. Ibid., 5784 

13. Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population. 

14. Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/. 

15. Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/. 

BIBLIOGRAPHY:

Chong, Jane. “This Is Not the Senate the Framers Imagined.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/01/not-senate-framers-imagined/605017/. 

Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/. 

Gaffney v. Cummings, 412 U.S. 735 (1973)

Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population. 

McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution. 

Noel, Hans. “The Senate Represents States, Not People. That's the Problem.” Vox. Vox, October 13, 2018. https://www.vox.com/2018/10/13/17971340/the-senate-represents-states-not-people-constitution-kavanaugh-supreme-court. 

Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html. 

Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/. 

Reynolds v. Sims, 377 U.S. 533 (1964)

Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/. 

Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress. 

Wesberry v. Sanders, 376 U.S. 1 (1964)

United States v Big Tech: A Rare Antitrust Phenomenon

By: Patrick Ales

Edited By: Joni Rosenberg and Tess Ballis

Over the last twenty years, the United States has seen a significant shift in the balance of power within the realm of “big” business. This very simple term has been used to describe companies or sectors that have exerted large amounts of influence over the general well-being of the economy, as well as essentially dictated corporate economic policy. The newest sector to have a hegemony on the S&P 500 is commonly referred to as “tech,” encompassing most large corporations that are involved in software development or general technological advancement. At the head of this surging sector stand some of the most valuable companies in the world by market cap, including Google, Facebook, Apple, and Microsoft. These companies have also been allowed to grow with virtually no oversight or regulatory policy, as opposed to other industries that underwent the same drastic growth in a short period of time, like radio or television [1]. One of the few actions taken against Big Tech companies in the twenty-first century has been the Sherman Antitrust suit levied against Microsoft in 2001 [2], and the newest suit against Google that alleges a monopoly over search engine advertising [3]. The rarity of such regulatory policies in a period of immense growth within the sector certainly had much to do with a lack of precedent on how to regulate the internet, a space in which Big Tech has made most of their market inroads. There has been a recent proclivity to use the Sherman Antitrust Act to lessen the market impact of some of these corporations, evidenced by the European Union’s first ever antitrust suit against Google in 2019 [4], and the United States’ parallel action [5]. Despite the coordinated efforts to take issue with Google’s dominance, there still remain many concerns regarding the definition of a true “tech” market and how antitrust can be efficiently employed against Big Tech.

An ever-evolving internet inherently means that the companies that contribute to this advancement are also changing rapidly. Facebook, for example, has faced litigation regarding issues of privacy and data sharing, but is yet to face an antitrust suit, even after their acquisition of Instagram in 2012. The Clayton Act provides the government with the ability to retroactively undo the merger, but only if there is an unreasonable disruption to competition in the market [6]. There are ample concerns regarding how to treat the market in which Facebook operates, and thus, a monopoly with no concrete market is at the face of the American tech and social media sector [7]. The dynamic changes that Facebook has undergone in their market dominance, from once being more reliant on the potential number of people in their network to now being defined by their advertisement, are largely emblematic of the shift in the way innovation is treated in the economy. The one constant in the regulation of Big Tech across the last two decades is that when the Sherman Act is involved, there seems to be continuity in how it is applied to internet giants such as Microsoft and Google, with a focus on exclusionary practices and Section 2 [8].  

The two most recent cases of Sherman Act litigation against Big Tech may be eighteen years apart, but there are stark similarities as to the market in question. The space of search engine advertising and search queues comprises the bulk of Google’s revenue stream, and represents their highest relative market dominance [9]. In the same vein, Microsoft once had a commanding portion of the web browser market, as Internet Explorer was the de facto exclusive browser on all Windows PCs, which at the time of United States v Microsoft Corp (2001), was the leading distributor of operating systems [10]. It seems to be the case that the Federal Trade Commission (FTC) and regulators take the most active stance on how access to the internet is purveyed and the ability of any individual company to regulate that access. The 2001 suit against Microsoft found that they were in violation of Section 2 of the Sherman Act, as the FTC deemed their actions in preventing other web browsers from being as easily compatible with Windows as exclusionary [11]. Eighteen years later, Google is also being sued by the U.S. government for exclusionary practices in regard to their dominance over the access of search engines to consumers [12]. This includes a perceived barrier to entry for many competitors in the search engine market, as well as concerts over the power that Google holds over companies that are reliant on advertising through search engines [13]. Google CEO Larry Page has previously said that competitors are only one click away from establishing themselves within the market, but lawmakers have become more skeptical on the true openness of the internet under the thumb of many tech conglomerates [14]. The comparisons between the two most recent applications of the Sherman Act pertaining to the companies usually grouped in Big Tech paint a picture that the use of the law and its related policies are not going to actively stop the mergers of many tech companies [15], as market sizes and the relative dominance of companies in these dynamic markets can change much faster than traditional large cap markets. Instead, the government has relied more heavily on Section 2 of the Sherman Act and its ban on exclusionary and anticompetitive practices. Going forward, this newest challenge to the “sovereignty” of large tech conglomerates could start a new era of government oversight on a once unregulated sector. This could also just be a blip on the radar for companies like Google that are at the forefront of innovation and are always expanding, in the same way that Big Tech saw no further challenges after the case against Microsoft twenty years ago. There are many considerations to be taken when looking at action against Big Tech, most notably the relative health of the stock market when the future of its fastest growing and most influential sector is uncertain. 

notes:

1. Brannon, “Regulating Big Tech: Legal Implications.

2. United States v. Microsoft Corporation

3. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

4. “Antitrust: Commission Fines Google €1.49 Billion for Abusive Practices in Online Advertising.”

5. Romano. “Don't Ask Whether Facebook Can Be Regulated. Ask Which Facebook to Regulate.”

6. 15 U.S.C §19

7. Brannon,“Regulating Big Tech: Legal Implications.”

8. 15 U.S.C § 2

9.  Hazan,“Stop Being Evil: A Proposal for Unbiased Google Search.”

10. Cohen, Amanda. “Surveying the Microsoft Antitrust Universe.”

11. Brannon,“Regulating Big Tech: Legal Implications.”

12. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

13. “Justice Department Sues Monopolist Google For Violating Antitrust Laws.”

14. Brannon,“Regulating Big Tech: Legal Implications.”

15. Lambert,“The Limits of Antitrust in the 21st Century.”

Bibliography:

“Antitrust: Commission Fines Google €1.49 Billion for Abusive Practices in Online Advertising.” European Commission, European Union, 2019, ec.europa.eu/commission/presscorner/detail/en/IP_19_1770. 

Brannon, Valerie C. “Regulating Big Tech: Legal Implications.” Federation of American Scientists , 2019, fas.org/sgp/crs/misc/LSB10309.pdf. 

Cohen, Amanda. “Surveying the Microsoft Antitrust Universe.” Berkeley Technology Law Journal, vol. 19, no. 1, 2004, pp. 333–364. JSTOR, www.jstor.org/stable/24117552. Accessed 9 Nov. 2020.20.

Hazan, Joshua G. “Stop Being Evil: A Proposal for Unbiased Google Search.” Michigan Law Review, vol. 111, no. 5, 2013, pp. 789–820. JSTOR, www.jstor.org/stable/23812653. Accessed 9 Nov. 2020.

“Justice Department Sues Monopolist Google For Violating Antitrust Laws.” The United States Department of Justice, 2020, www.justice.gov/opa/pr/justice-department-sues-monopolist-google-violating-antitrust-laws. 

Lambert, Thomas Andrew. “The Limits of Antitrust in the 21st Century.” SSRN Electronic Journal, 2020, doi:10.2139/ssrn.3533549. 

Romano, Aja. “Don't Ask Whether Facebook Can Be Regulated. Ask Which Facebook to Regulate.” Vox, Vox, 12 Apr. 2018, www.vox.com/technology/2018/4/12/17224096/regulating-facebook-problems. 

United States, Congress, Antitrust Division Manual. Vol. 5, U.S. Department of Justice, 2012. Antitrust Division Congress. 

United States Court of Appeals for the District of Columbia Circuit, United States v. Microsoft Corporation. Federal Reporter, Third Series, vol. 253

Google v. Oracle: The Copyright Battle over Software Interfaces

By: Claire Lu

Edited By: Joni Rosenberg and Maddy Bennett

In a world driven by technology, computer software permeates nearly every facet of our digital lives. The rapid development and innovation of the technological industry can be attributed in part to open-source coding and collaboration between developers across various fields [1]. With the growing significance and advancement of technology, new and unprecedented issues have emerged. Namely, the outcome of Google LLC v. Oracle America, Inc. 18-956 (2018), which is being heard by the United States Supreme Court, may threaten the standard practices of the computer industry.

This case is part of a decade-long array of hearings that have been held on the topic of application programming interfaces (APIs) and copyright infringement. APIs are intermediates that translate user requests to information readable by computers. Historically, they have been used by developers to build platforms that can interoperate [2]. The importance of APIs cannot be understated; they encourage innovation through computing, allow programmers to focus their energies on creating new ideas, and enable the free flow of code across software programs [3].

Java, a computer language acquired by Oracle in 2009, includes a library of APIs that help programmers create new code without needing to recreate the basic framework that communicates directly with the computer. In 2005, Google copied the “structure, sequence, and organization” of Java’s APIs to develop earlier versions of the Android operating systems. Five years later, Oracle claimed that Google infringed on its ownership of Java. While the lower courts sided with Google in this debate, the Federal Court of Appeals reversed this decision in 2018 [4].  Now, as the Supreme Court is poised to make its final verdict, it is worth examining some of the key arguments and effects of a decision favoring Oracle.

While it is indisputable that Google used Java’s APIs, the contested issue is whether primarily functional software such as APIs can be protected by copyright. The Copyright Act protects "original works of authorship fixed in any tangible medium of expression [5].”.However, copyright protection is limited by the fair use doctrine, which prescribes that the limited use of unlicensed, copyrighted material is permissible in certain cases to balance the interests of the copyright holder and broader public [6]. Google argues that their use of APIs should be considered under the doctrine of fair use and that their incorporation of APIs under a different platform constitutes innovation and “transformative use [7].”

The protection of computer software under the Copyright Act is difficult to assess definitively, as it is a combination of creative and functional elements. Traditionally, functional code is exempt from the Copyright Act under the fair use doctrine because there are limited ways to recreate the code’s function and it involves no creative elements. Conversely, many other types of code are idiosyncratic in nature and require creativity on the part of the programmer [8]. APIs hover the line between functional and creative code because while the underlying code is functional, it still involves some creativity in its design [9].

Currently, it is common practice for programmers to use APIs without having to worry about copyright protection. Since APIs mostly involve functional software elements, a ruling in favor of Oracle could create a dangerous precedent by narrowing the scope for fair use arguments and limiting the innovation that often occurs within the space granted by fair use [10].

This case is highly controversial, as valid arguments lie on the opposing sides. Most of the technology industry has offered their support to Google, including competitor Microsoft, whereas several others have sided with Oracle, including the American Conservative Union Foundation [11]. Nonetheless, the potential danger of offering inadequate protection to software developers that comes with a ruling in Google’s favor is outweighed by the danger of upending the software industry. The repercussions of a ruling in favor of Oracle would not only be felt by Google –– who would owe up to $8 billion in damages –– but also by the industry as a whole. Software developers would have to change their practices and “recreate the wheel” when developing new code. This could drastically stall the advancement of new technology and drive up costs [12]. As this decade-old conflict draws to a close, all eyes in the tech industry and beyond will be on the Supreme Court as they make a ruling on Google v. Oracle.

notes:

1. Towers-Clark, Charles. “Why Is Open-Source So Important? Part One: Principles And Parity.” Forbes. Forbes Magazine, September 25, 2019. https://www.forbes.com/sites/charlestowersclark/2019/09/24/why-is-open-source-so-important-part-one-principles-and-parity/?sh=2067f0f061f7. 

2. Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.” Supreme Court of the United States. Feb. 25, 2019. https://www.supremecourt.gov/DocketPDF/18/18-956/89566/20190225161900311_Brief%20of%20Microsoft%20Corporation%20as%20Amicus%20Curiae.pdf.

3. Freeman, Jonathan. “Application Programming Interfaces Explained.” InfoWorld. InfoWorld, August 8, 2019. https://www.infoworld.com/article/3269878/what-is-an-api-application-programming-interfaces-explained.html. 

4. Cho, Justin. “Google v. Oracle: SCOTUS to Determine How Copyright Laws Apply to APIs.” Harvard Journal of Law & Technology, December 1, 2019. https://jolt.law.harvard.edu/digest/google-v-oracle-scotus-to-determine-how-copyright-laws-apply-to-apis. 

5. “Copyright in General.” Copyright. Accessed October 30, 2020. https://www.copyright.gov/help/faq/faq-general.html. 

6. Ibid.

7. Jeong, Sarah. “The Supreme Court Is Taking on Google and Oracle One Last Time.” The Verge. The Verge, October 6, 2020. https://www.theverge.com/2020/10/6/21504715/google-v-oracle-supreme-court-hearings-android-java. 

8. “Copyright Registration of Computer Programs.” Copyright. Accessed Oct. 30, 2020. https://www.copyright.gov/circs/circ61.pdf.

9. Baldinger, Jacob. “The Supreme Court Copyright Battle Between Google and Oracle Will Confront ‘Fair Use’ of Software.” Subscript Law. Subscript Law, February 18, 2020. https://www.subscriptlaw.com/blog/supreme-court-battle-between-google-and-oracle-confront-fair-use. 

10. [Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.”

11. “Oracle v. Google.” Copyright Alliance, February 20, 2020. https://copyrightalliance.org/copyright-law/copyright-cases/oracle-america-v-google/. 

12. Arin, Michael. “Reactions to Mixed Metaphors.” Business Law Today, October 27, 2020. https://businesslawtoday.org/2020/10/reactions-mixed-metaphors-decoding-google-v-oracles-impact/.

Bibliography:

Arin, Michael. “Reactions to Mixed Metaphors.” Business Law Today, October 27, 2020. https://businesslawtoday.org/2020/10/reactions-mixed-metaphors-decoding-google-v-oracles-impact/.

Baldinger, Jacob. “The Supreme Court Copyright Battle Between Google and Oracle Will Confront ‘Fair Use’ of Software.” Subscript Law. Subscript Law, February 18, 2020. https://www.subscriptlaw.com/blog/supreme-court-battle-between-google-and-oracle-confront-fair-use.

Cho, Justin. “Google v. Oracle: SCOTUS to Determine How Copyright Laws Apply to APIs.” Harvard Journal of Law & Technology, December 1, 2019. https://jolt.law.harvard.edu/digest/google-v-oracle-scotus-to-determine-how-copyright-laws-apply-to-apis. 

“Copyright in General.” Copyright. Accessed October 30, 2020. https://www.copyright.gov/help/faq/faq-general.html.

“Copyright Registration of Computer Programs.” Copyright. Accessed Oct. 30, 2020.

https://www.copyright.gov/circs/circ61.pdf. 

Freeman, Jonathan. “Application Programming Interfaces Explained.” InfoWorld. InfoWorld, August 8, 2019. https://www.infoworld.com/article/3269878/what-is-an-api-application-programming-interfaces-explained.html. 

Jeong, Sarah. “The Supreme Court Is Taking on Google and Oracle One Last Time.” The Verge. The Verge, October 6, 2020. https://www.theverge.com/2020/10/6/21504715/google-v-oracle-supreme-court-hearings-android-java. 

Microsoft Corporation. “Brief of Microsoft Corporation as Amicus Curiae in Support of Petitioner.” Supreme Court of the United States. Feb. 25, 2019. https://www.supremecourt.gov/DocketPDF/18/18-956/89566/20190225161900311_Brief%20of%20Microsoft%20Corporation%20as%20Amicus%20Curiae.pdf.

“Oracle v. Google.” Copyright Alliance, February 20, 2020. https://copyrightalliance.org/copyright-law/copyright-cases/oracle-america-v-google/. 

Towers-Clark, Charles. “Why Is Open-Source So Important? Part One: Principles And Parity.” Forbes. Forbes Magazine, September 25, 2019. https://www.forbes.com/sites/charlestowersclark/2019/09/24/why-is-open-source-so-important-part-one-principles-and-parity/?sh=2067f0f061f7. 

The Constitutional Cost of Federal Fossil Fuel Subsidies

By: Aidan Ocampo

Edited by: Tess Ballis

U.S. Federal officials have been aware of the devastating implications of burning fossil fuels for decades [1]. Recognizing the costs of releasing greenhouse gases into the atmosphere, the federal government “permitted, encouraged, and enabled exploitation” of fossil fuels at the direct expense of American livelihood [2]. Inspired by John Locke’s political philosophy [3], America enshrines its citizens with the inherent rights of life, liberty, and the pursuit of happiness – all of which are being traded by our federal government’s “deliberate indifference” to the impacts of CO2 emissions [4]. Therefore, in many instances, the federal government’s deliberate promotion of fossil fuel exploitation— through subsidization and provision of federal permits— illegally disregards its constituents' rights to life, liberty, and the pursuit of happiness.

These violations of inalienable rights have already been litigated in the US Supreme Court. In Juliana v. United States, 18-36082 (2020), 21 young plaintiffs sued numerous federal agencies that continued to permit fossil fuel exploitation. Among the plaintiffs include individuals whose narratives include many instances in which climate change has already impacted the lives of America’s youth across the nation. Plaintiff Jaime B, a former resident of the Navajo Nation, has faced displacement from her former home in Cameron, Arizona “because of water scarcity” [5]. After leaving to move to the Kaibab National Forest, “Jaime and her mother were evacuated for two days” because of a wildfire north of their property [6]. This is just one example of how the federal government’s decision to continue its reliance on fossil fuels has led to the detriment of American’s livelihoods—especially our youth.

Although the United States is not the only country to subsidize the fossil fuel industry, it is among the largest subsidizers with a reported $649 billion in 2017 alone [7]. To support the federal government’s substantial investment in fossil fuel exploitation, “US taxpayers are spending tens of billions of dollars a year subsidizing new fossil fuel exploration and exploitation” [8].  In fact, Forbes magazine found that the “United States spends ten times more on fossil fuel subsidies than education” [9]. Historically, the use of fossil fuel subsidies was intended to support the development of domestic energy sources by lowering its cost. However, according to the Environmental and Energy Study Institute, “U.S. taxpayer dollars continue to fund many fossil fuel subsidies that are outdated but remain embedded within the tax code” [10]. Therefore, the federal government is utilizing the taxpayer’s money to fund an industry that will inhibit our ability to fulfill our rights to life, liberty, and the pursuit of happiness.

To ensure the prioritization of our rights in political agendas, the Commonwealth of Pennsylvania offers a potential solution. In 1971, voters in the state ratified the Environmental Rights Amendment to the Pennsylvania Constitution explicitly affirming, “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment [11].” After its inclusion in the state constitution, its state legislature “enacted sweeping environmental laws” in addition to “creating a Department of Environmental Resources” [12]. Similarly, in 1987, the state of Rhode Island adopted an environmental bill of rights provision into its constitutions Declaration of Rights and Privileges. The detailed provision indicates the state as “a trustee and steward of the environment” and depends on the state “to adopt all means necessary and proper by law to protect the natural environment” [13][14]. The ratification of such amendments in more states, or even at the federal level, would seek only to reaffirm these fundamental environmental rights and improve on the safeguards that the environment demands.

According to the National Contingency Plan, the Secretary of the Interior is the trustee of all federal lands including “National Parks, National Wildlife Refuges, and BLM and BOR lands” [15]. In this role, the public entrusts the Department of the Interior to ensure the proper control and management of its lands. However, this role should not provide the federal government the right to auction off federal land to oil drilling companies to exploit the public’s pristine land in exchange for corporate and government profits.

Ultimately, the federal government has demonstrated that they do not make decisions in the interest of Americans’ well-being or the environment. By consistently permitting the auction of federal lands to drilling and mining companies and spending billions of dollars in taxpayer money subsidizing the fossil fuel industry, the federal government has been actively advancing the devastating impacts of climate change in direct violation of American’s fundamental rights.

Fortunately, Americans now have reason to hope. With the election of Joe Biden, the US has entrusted Biden to pursue his promise to end US fossil fuel subsidies. Though many have noted the steep uphill challenge to such a proposal, Biden’s promise is an indication of a larger trend: the reduction of the federal government’s support of fossil fuel exploitation. Additionally, with Biden’s selection of Representative Deb Haaland (D-NM) as Secretary of the Interior, the management of federal lands will be in the hands of a politician who openly proclaimed “I am wholeheartedly against fracking and drilling on public lands” [16]. As the trustee of federal lands and natural resources, a Secretary Haaland would fulfill her role in protecting lands in the interest of the public: preservation.

notes:

1. The White House. 1965. “Restoring the Quality of Our Environment”. Report of the Environmental Pollution Panel President’s Science Advisory Committee, November 1965. https://ozonedepletiontheory.info/Papers/Revelle1965AtmosphericCarbonDioxide.pdf

2. Juliana v. United States, No. 18-36082 (2015). http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf

3. Alex Tuckness. 2020. "Locke’s Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2020 Edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/win2020/entries/locke-political/

4. Juliana, No. 18-36082

5. Juliana, No. 18-36082

6. Juliana, No. 18-36082 

7. Clayton Coleman and Emma Dietz. 2019. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” Environmental and Energy Study Institute, July 29, 2019. Edited by LaShier, Brian et al. https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs#:~:text=Historically%2C%20subsidies%20granted%20to%20the,embedded%20within%20the%20tax%20code.

8. David Roberts. 2018. “Friendly policies keep US oil and coal afloat far more than we thought.” Vox, July 26, 2018. https://www.vox.com/energy-and-environment/2017/10/6/16428458/us-energy-coal-oil-subsidies.

9. James Ellsmoor. 2019. “United States Spend Ten Times More On Fossil Fuel Subsidies Than Education”. Forbes, June 15, 2019.

10. Clayton and Dietz. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” 

11. Constitution of the Commonwealth of Pennsylvania, art. 1, sec. 27. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.HTM

12. Franklin L. Kury. “Pennsylvania’s Environmental Rights Amendment.” Conservation Advocate. https://conservationadvocate.org/pennsylvanias-environmental-rights-amendment/

13. Constitution of the State of Rhode Island and Providence Plantations, art. 1, sec 17. http://webserver.rilin.state.ri.us/RiConstitution/C01.html

14. Art English and John J. Carroll 2015. “State Constitutions and Environmental Bill of Rights.” The Book of the States. http://knowledgecenter.csg.org/kc/system/files/English%20Carroll%202015.pdf

15. National Contingency Plan Pt. 300, App. E. 6.4.5 https://www.govinfo.gov/content/pkg/CFR-2011-title40-vol28/pdf/CFR-2011-title40-vol28-part300.pdf

16. Jimmy Tobias. “’It’s my homeland’: the trailblazing Native lawmaker fighting fossil fuels”. The Guardian, May 15, 2019.

Bibliography:

Bureau of Land Management. “General Oil and Gas Leasing Instructions”. Bureau of Land Management. https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/general-leasing

Coleman, Clayton and Dietz, Emma. 2019. “Fact Sheet: Fossil Fuel Subsidies: A Closer Look at Tax Breaks and Societal Costs.” Environmental and Energy Study Institute, July 29, 2019. Edited by LaShier, Brian et al. https://www.eesi.org/papers/view/fact-sheet-fossil-fuel-subsidies-a-closer-look-at-tax-breaks-and-societal-costs#:~:text=Historically%2C%20subsidies%20granted%20to%20the,embedded%20within%20the%20tax%20code.

Constitution of the Commonwealth of Pennsylvania, art. 1, sec. 27. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.HTM

Constitution of the State of Rhode Island and Providence Plantations, art. 1, sec 17. http://webserver.rilin.state.ri.us/RiConstitution/C01.html

Ellsmoor, James. 2019. “United States Spend Ten Times More On Fossil Fuel Subsidies Than Education”. Forbes, June 15, 2019.

English, Art and Carroll, John J. 2015. “State Constitutions and Environmental Billl of Rights.” The Book of the States. http://knowledgecenter.csg.org/kc/system/files/English%20Carroll%202015.pdf

Juliana v. United States, No. 18-36082 (2015). http://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/18-36082.pdf

Kury, Franklin L. “Pennsylvania’s Environmental Rights Amendment.” Conservation Advocate. https://conservationadvocate.org/pennsylvanias-environmental-rights-amendment/

National Contingency Plan Pt. 300, App. E. 6.4.5 https://www.govinfo.gov/content/pkg/CFR-2011-title40-vol28/pdf/CFR-2011-title40-vol28-part300.pdf

The White House. 1965. “Restoring the Quality of Our Environment”. Report of the Environmental Pollution Panel President’s Science Advisory Committee, November 1965. https://ozonedepletiontheory.info/Papers/Revelle1965AtmosphericCarbonDioxide.pdf

Tobias, Jimmy. “’It’s my homeland’: the trailblazing Native lawmaker fighting fossil fuels”. The Guardian, May 15, 2019.

Tuckness, Alex. 2020. "Locke’s Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2020 Edition), edited by Edward N. Zalta. https://plato.stanford.edu/archives/win2020/entries/locke-political/