University of Baltimore Law Review

Citizen Suits vs. Executive Power: Article II Implications to Watch in NAACP v. X.AI Corp.

*Isabelle Pardew

Introduction

On February 13, 2026, the National Association for the Advancement of Colored People (NAACP) filed a sixty-day notice of intent to sue X.AI Corp. (xAI) and its subsidiary MZX Tech for violations of the Clean Air Act (CAA).[1] The NAACP alleged that xAI installed twenty-seven combustion turbines for a planned data center in Memphis, Tennessee, without the permits required by the CAA.[2] On April 14, 2026, after xAI took no action to curtail data center operations, the NAACP filed suit.[3] The NAACP brought its action under the CAA’s citizen suit provision, which enables private citizens or organizations to file suit in federal court to enforce the CAA where government enforcement is lacking.[4] Under the CAA, the government may still pursue its own action or intervene in the ongoing citizen suit.[5]

The case’s most notable development occurred on June 15, 2026, when the Department of Justice (DOJ) moved to intervene and dismiss the action pursuant to its asserted authority under Article II of the United States Constitution.[6] In September 2026, the DOJ filed a notice of appeal and moved to stay the proceedings pending review of its motion to intervene and dismiss.[7]

Thus, while the original dispute centered on alleged CAA permitting violations, NAACP v. X.AI Corp. presents the broader question of whether the Constitution provides the Executive ultimate control over federal enforcement despite congressional authorization of private actions.[8]

The Citizen Suit Provision

The CAA is among several federal environmental statutes that permit private plaintiffs, under statutorily defined circumstances, to bring civil actions against alleged violators rather than solely relying on government enforcement.[9] The precise requirements vary by statute, but generally citizen suit plaintiffs must satisfy procedural prerequisites, such as pre-suit notice and demonstration of an ongoing or continuing violation.[10] Citizen enforcement may not proceed if the government is already actively prosecuting the same violation.[11] Despite legislative and judicial limitations that have diminished their potency, citizen suits remain a key component of modern environmental law, supplementing government enforcement and enabling private participation within boundaries expressly established by Congress.[12]

Article II’s Absorption of “Citizen” Enforcers

Moving Beyond Enforcement Discretion Toward Dismissal Authority

The DOJ’s motion to intervene and dismiss the case presents a novel assertion of executive power.[13] The DOJ grounds its authority to intervene and dismiss in the Federal Rules of Civil Procedure and the Executive’s inherent Article II powers.[14] As to the former, the DOJ’s amended motion emphasizes Rule 41 as an independent basis for dismissal.[15] Separately, the DOJ argues that Article II provides the Executive with authority to assume control over citizen suit litigation when private enforcement conflicts with federal policy or the Executive’s decision not to enforce.[16] The DOJ further contends that the NAACP’s claims threaten national security because the private enforcement action seeks to eliminate “the power supply for artificial-intelligence innovation that supports the Department of War’s military operations.”[17]

More broadly, the DOJ invokes Article II as authority to assume control over enforcement where “a citizen’s attempted civil enforcement action is inconsistent with federal policy and the public interest,” including where the Executive deliberately chose not to pursue enforcement.[18] Significantly, the DOJ asserts that citizen suits are unconstitutional or, alternatively, that the CAA authorizes citizen suits only with the government’s consent.[19] The DOJ also contends that the NAACP’s request for civil penalties, payable to the Treasury, seeks relief that closely resembles an enforcement action brought by the government and “bears only the most attenuated relationship, if any, to the plaintiff’s own asserted injuries.”[20]

The DOJ does not dispute Congress’s authority to create private causes of action, including those under the Civil Rights Act or the Clayton Act.[21] Instead, its constitutional objection focuses on citizen plaintiffs seeking generalized enforcement relief on behalf of the public rather than compensatory monetary relief, which the DOJ characterizes as an exercise of “quintessentially executive power.”[22] In developing its argument, the DOJ relies on dissenting opinions and attempts to distinguish majority precedent recognizing private enforcement.[23]

Constitutional Challenges to Citizen Suit Provisions

Citizen suit provisions have historically faced constitutional challenges under both Article II and Article III, including arguments that private enforcement impermissibly encroaches upon the Executive’s authority to enforce the law.[24] NAACP v. X.AI Corp. elevates the tension between the Executive’s Article II authority over enforcement of federal law and congressional authority to create private causes of action.[25]

The Supreme Court has yet to definitively resolve the constitutionality of citizen suit provisions, and lower courts have regarded such constitutional challenges with mixed results.[26] The DOJ now advances a broader concept of Article II authority, where the Executive is empowered to intervene and terminate a private action that Congress has expressly authorized but the government elected not to pursue.[27] If accepted, this theory would extend enforcement discretion beyond an affirmative decision to prosecute and instead impede, or eliminate altogether, independently authorized citizen suits.[28]

Conclusion

Citizen suit provisions reflect Congress’s decision to permit private participation in the enforcement of environmental laws and other statutory schemes.[29] Yet if the DOJ succeeds in both intervention and dismissal, the availability of citizen enforcement may depend entirely on Executive judgment.[30] NAACP v. X.AI Corp. therefore implicates more than just compliance with the CAA.[31] This case foreshadows the simmering question of whether citizens may invoke congressionally created enforcement mechanisms to address environmental and public health concerns when regulators do not act, or whether the Executive ultimately retains unilateral authority to prevent those actions from proceeding.[32]

*Isabelle Pardew is a second-year part-time day student at the University of Baltimore School of Law and a Staff Editor for Volume 56 of the University of Baltimore Law Review. Isabelle is a Law Scholar for Civil Procedure I and Secretary of the Environmental Law Society. Prior to law school, she earned master’s degrees in both mathematics and communication. She works with a climate education nonprofit and manages environmental advocacy initiatives focused on modern infrastructure and its impact on migratory wildlife. In summer 2026, Isabelle was a judicial intern for the Honorable Dan Friedman at the Appellate Court of Maryland. In her free time, she enjoys spending time with her family, reading, and doing crossword puzzles.

[1] Compl. at 4, National Ass’n for the Advancement of Colored People v. X.AI Corp., No. 3:26CV00074 (D. Miss. Apr. 14, 2026).

[2] Id. at 2.

[3] Id. at 1.

[4] See Compl., supra note 1, at 18–19; Roger A. Greenbaum & Anne S. Peterson, The Clean Air Act Amendments of 1990: Citizen Suits and How They Work, 2 Fordham Env’t. Rep. 79, 79 (1991).

[5] Jeffrey G. Miller & Brooke S. Dorner, The Constitutionality of Citizen Suit Provisions in Federal Environmental Statutes, 27 J. Envtl. L. & Litig. 401, 454 (2012).

[6] Memorandum in Support of the United States’ Motion for Intervention and Dismissal at 1, 8, National Ass’n for the Advancement of Colored People v. X.AI Corp., No. 3:26CV00074 (D. Miss. June 15, 2026).

[7] Notice of Appeal at 1, National Ass’n for the Advancement of Colored People v. X.AI Corp., No. 3:26CV00074 (D. Miss. Sept. 18, 2026); Motion to Stay All Proc. Pending Appeal at 1, National Ass’n for the Advancement of Colored People v. X.AI Corp., No. 3:26CV00074 (D. Miss. Sept. 21, 2026).

[8] See discussion infra Part III.

[9] David E. Adelman & Robert L. Glicksman, Reevaluating Environmental Citizen Suits in Theory and Practice, 91 U. Colo. L. Rev. 385, 394 (2020).

[10] Greenbaum & Peterson, supra note 4, at 82, 84.

[11] Miller & Dorner, supra note 5, at 454.

[12] Lia Cattaneo, Wrinkling Citizen Suits: California v. EPA (9th Cir. 2020) and Clean Air Act Underenforcement, 45 Harv. Env’t. L. Rev. 503, 506–08 (2021).

[13] See discussion infra Part III.B.

[14] Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 1–2; Reply Memorandum in Support of the United States’ Amended Motion for Intervention and Dismissal at 1, 16, National Ass’n for the Advancement of Colored People v. X.AI Corp., No. 3:26CV00074 (D. Miss. July 24, 2026).

[15] Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 9; Reply Memorandum in Support of the United States’ Amended Motion for Intervention and Dismissal, supra note 14, at 16.

[16] Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 10.

[17] Id. at 1.

[18] Id. at 8, 10, 12.

[19] Id. at 11.

[20] Id. at 19.

[21] Id. at 23; Civil Rights Act of 1871, 42 U.S.C. § 1983 (2012) (providing that parties subject to a violation of federally-protected civil rights can sue for damages, an injunction, or declaratory relief); Clayton Antitrust Act, 15 U.S.C. §§ 15, 26 (2012) (providing that parties harmed in business or property by antitrust violations can sue for private enforcement and injunctive relief).

[22] Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 23; Adelman & Glicksman, supra note 9, at 387 (discussing critics’ argument that citizen-suit provisions allow independent environmental organizations to exploit the legal system for their own “extreme ends” and disrupt the regulatory balance struck by more knowledgeable federal agencies).

[23] For example, DOJ invokes Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) to suggest that the U.S. Supreme Court has already foreshadowed the precarious constitutionality of citizen suit provisions that interfere with Government enforcement discretion. But Gwaltney dealt solely with past violations, holding them beyond the reach of citizen suits. Rather than establishing authority to extinguish an otherwise permissible citizen suit, Gwaltney defined the statutory limits that Congress itself placed on citizen enforcement.

[24] Cattaneo, supra note 12, at 518–20; Stephen M. Johnson, Private Plaintiffs, Public Rights: Article II and Environmental Citizen Suits, 49 U. Kan. L. Rev. 383, 383–85 (2001).

[25] See discussion supra Part III.A.

[26] In Steel Co. v. Citizens For A Better Env’t, Justice Stevens observed in concurrence that “it is hard to see . . . how the EPCRA’s citizen-suit provision impinges on the power of the executive,” potentially indicating the highest court’s view on the provisions. 523 U.S. 83, 129 (1998) (Stevens, J., concurring). Steel Co. ultimately resolved the case on Article III standing grounds and therefore did not reach the question of whether citizen suits allow for the enforcement of purely historical violations. Justice Stevens’s concurrence nevertheless demonstrates that the potential tension between citizen enforcement and executive authority has reached the Court long before the more direct challenge presented today. More recently, in 2025, the Court declined to hear challenges concerning available remedies in citizen-suit actions, leaving the lower court decisions, and the challenged applications of citizen-suit authority, undisturbed for the moment.

[27] See Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 18.

[28] See id.

[29] See Miller & Dorner, supra note 5, at 458; Kristi M. Smith, Who’s Suing Whom: A Comparison of Government and Citizen Suit Environmental Enforcement Actions Brought Under EPA-Administered Statutes, 1995-2000, 29 Colum. J. Envtl. L. 359, 363 (2004).

[30] See discussion supra Part III; Memorandum in Support of the United States’ Motion for Intervention and Dismissal, supra note 6, at 11–12.

[31] See discussion supra Part III.B.

[32] See discussion supra Part III.

Highest Case Note from Write-On 2026: Martinez v. Amazon.com Servs. LLC, 338 A.3d 636 (Md. 2025).

*Aharon Katz

The Supreme Court of Maryland Held that the De Minimis Doctrine Applies to the Maryland Wage Laws. Martinez v. Amazon.com Servs. LLC, 338 A.3d 636 (Md. 2025).

I. Introduction

In Martinez v. Amazon.com Services LLC, the Supreme Court of Maryland addressed whether the de minimis doctrine applies to the Maryland Wage Laws.[1] The de minimis doctrine states that “the law does not concern itself with trifles” and has deep roots in common law.[2] The appellant contended that the plain language of the statute indicated that the legislature did not intend for the de minimis rule to become Maryland law.[3] The appellee argued that because the Maryland legislature intended to incorporate federal law into Maryland law, the federal de minimis doctrine applied to Maryland law.[4] The Court ultimately ruled in favor of the appellee, finding the state legislature’s silence indicative of acceptance of federal precedent.[5]

II. Historical Development

A. Federal Laws

In 1938, Congress passed the Fair Labor Standards Act (FLSA) to eliminate poor working conditions[6] and establish a national minimum wage.[7] The act required employers to pay their employees a minimum wage per hour worked[8] and no less than one and a half times that rate for time worked over forty hours in any given workweek.[9] The FLSA did not define the terms “work” and “workweek.”[10]

The Supreme Court sought to define these terms in the 1946 case of Anderson v. Mt. Clemens Pottery Company.[11] The Court defined “workweek” as all the time “during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.”[12] However, the Court also held that the FLSA did not preclude the application of a de minimis rule for the small amount of time that employees spent walking to and from their workplaces.[13] According to the Court, the workweek must be calculated “in light of the realities of the industrial world.”[14] Therefore, when the matter at issue concerned mere “seconds or minutes of work, . . . such trifles may be disregarded.”[15]

In response, Congress amended the FLSA via the Portal-to-Portal Act (PPA) to address Anderson’s overly broad definition of workweek.[16] The PPA specified that certain activities, such as walking or traveling to and from the location of the work activity, and other preliminary or postliminary activities, were not included in the workweek.[17] The PPA did not in any way abrogate the de minimis portion of the Anderson decision.[18] In 1961, the federal government once again acknowledged the existence of the de minimis doctrine.[19] A regulation issued by the Department of Labor (DOL) stated that employers may disregard certain “insignificant periods of time” that cannot, as a practical matter, be precisely recorded.[20]

Recently, the Supreme Court held in Sandifer v. U.S. Steel Corporation that the de minimis doctrine did not apply to a specific FLSA statute governing employees being paid for time spent changing clothes.[21] In Sandifer, the petitioners argued that, pursuant to their collective bargaining agreement, they should be paid for “time spent donning and doffing protective gear.”[22] The Court held that protective articles of clothing (such as a snood or work gloves) counted as clothes that were not legally compensable under their collective bargaining agreement.[23] However, “time spent donning and doffing” non-clothing items (such as glasses or earplugs) could be compensable.[24] The Court rejected the argument that the non-clothing items were covered by the de minimis doctrine, explaining that the FLSA statute was specifically crafted to compensate the seconds and minutes employees spent changing outfits.[25]

B. Maryland Laws

In 1965 and 1966, the Maryland State Legislature enacted the Maryland Wage and Hour Law (MWHL)[26] and the Maryland Wage Payment and Collection Law (MWPCL)[27] (collectively, “Maryland Wage Laws”). The Maryland Wage Laws govern minimum wage and the timing of wage payments, among other laws.[28] Both statutes define “wages” as “all compensation that is due to an employee for employment.”[29] The Maryland Wage Laws mirror the FLSA in many ways,[30] most notably by declining to define what counts as compensable “work.”[31]

In Amaya v. DGS Construction, LLC, the Supreme Court of Maryland considered whether Maryland had adopted the federal limitations on compensable work codified in the PPA because the state’s general assembly had remained silent on this issue.[32] The Court answered no.[33] The Court explained that, although Congress enacted the PPA to amend the FLSA,[34] there was no indication that the general assembly intended to incorporate the later-enacted PPA into Maryland law.[35] If that had been the general assembly’s intent, it would not have left such a significant piece of text out of its legislation.[36] While Amaya ruled that the Maryland legislature’s silence regarding the PPA was indicative of its intent to disregard it, the Supreme Court of Maryland had yet to address whether this logic applied to the FLSA in its entirety.[37]

III. Instant Case

A. Facts

Appellee Amazon.com Services LLC (Amazon) employed appellant Estefany Martinez from June 2017 to November 2021.[38] While Martinez was employed, Amazon required its employees to undergo a security screening on their way out of the facility, which they were not compensated for.[39] Martinez retained an expert witness who calculated that—based on the data provided by Amazon—Martinez was owed $161.61 for the time she spent waiting in line for security screenings.[40] Martinez filed suit against Amazon in the Circuit Court of Baltimore City on behalf of herself and a putative class consisting of 23,914 current and former Amazon employees.[41] Amazon removed the case to the United States District Court for the District of Maryland, which then granted Martinez’s motion for class certification.[42] Amazon moved to dismiss, claiming that time spent waiting in line was de minimis.[43] Because Maryland law lacked clear guidance regarding the de minimis rule, the District Court certified a question to the Supreme Court of Maryland, asking it to clarify Maryland’s approach to this issue.[44]

B. Court’s Analysis

In a majority opinion written by Justice Biran, the Court held that the de minimis doctrine applies to claims brought under the Maryland Wage Laws.[45] The Court first addressed Martinez’s argument that the statute’s definition of “wages” as “all compensation that is due to an employee for employment” indicates that all compensation, no matter how small, is included in the definition of “wages.”[46] The Court dismissed this approach, reasoning that “all” merely operates to describe the payment necessary for whatever is “due”; it does not answer the threshold question of what is, in fact, “due.”[47] The outcome of that question rests on whether the de minimis rule applies.[48]

Having concluded that the plain language of the statute did not indicate whether the de minimis rule applied, the Court turned to other evidence of the legislature’s intent in enacting the Maryland Wage Laws.[49] In that vein, the Court held that because the MWHL was meant to mirror the FLSA,[50] “compensation due” meant whatever compensation was due under the FLSA.[51] Because the MWPCL immediately followed on the heels of the MWHL and used the same definition for “wages,” the Court held that it would be illogical for the MWPCL to refer to something different from the MWHL without the state legislature explicitly saying so.[52] Therefore, any compensation due under the FLSA should be similarly applied to the MWHL and the MWPCL.[53]

Federal law had already recognized the de minimis doctrine by 1946, when the Supreme Court held in Anderson that the FLSA’s labor laws did not “preclude the application of a de minimis rule.”[54] The de minimis doctrine further solidified its place in federal law in 1961, when the DOL issued regulations stating that insignificant amounts of time that cannot be precisely recorded may be disregarded.[55] Because the Maryland Wage Laws mirror the FLSA, which had previously been interpreted to include a de minimis rule, the Supreme Court of Maryland reasoned that the general assembly intended the de minimis doctrine to apply to Maryland legislation as well.[56]

The Court further rejected the argument that this ruling contradicts precedent in Amaya.[57] Amazon argued that while in Amaya the Court held that legislative silence showed no intent to adopt the Portal-to-Portal Act’s exceptions, the Court here was treating the legislature’s silence as acquiescence to the de minimis doctrine.[58] The Court distinguished these two cases as follows: Because the MWHL was created to mirror the original FLSA of 1938, it only made sense that it would incorporate the de minimis rule, “which is part and parcel of the original FLSA.”[59] Conversely, the PPA was an amendment added later and was not an integral part of the original FLSA.[60] Therefore, by mirroring the original FLSA, the Maryland legislature could not be assumed to have adopted the PPA as well.[61] For these reasons, the Court answered the certified question from the District Court in the affirmative, holding that the de minimis doctrine applies to the Maryland Wage Laws.[62]

Justice Watts filed a dissenting opinion along with Justice Eaves.[63] They argued that, absent any de minimis rule in the statutes’ plain language, the words “all compensation that is due” should not be understood as excluding otherwise compensable time.[64] The dissent also referenced Amaya as Maryland precedent because Amaya had ruled that the Maryland legislature’s silence regarding the PPA did not indicate its intent to incorporate it into the Maryland Wage Laws, and there was no reason to treat the de minimis doctrine differently.[65] Furthermore, they explained, considering that the general assembly had demonstrated a long trend of making employment law more employee-friendly,[66] it did not make sense for its silence to be interpreted as a desire to undercut workers’ rights.[67] The dissent also noted that several other state courts, when presented with similar questions, had declined to incorporate the de minimis rule into its legislation.[68] Maryland’s approach contradicts a growing trend among states that have chosen not to adopt the de minimis doctrine into their judicial interpretations.[69]

IV. Analysis

A. The Court’s Holding Insulates Businesses from Lawsuits over Minute Periods of Work Time That Are Difficult, if Not Impossible, to Calculate.

Ever since Anderson, the de minimis doctrine has been applied on the federal level to shield employers from lawsuits over “[s]plit second absurdities.”[70] Although states may raise the standard of wage compensation over the federal minimum, such legislation is not always advisable.[71] Here, the Supreme Court of Maryland established that the Maryland legislature did not intend to provide protections beyond the federal minimum.[72] This decision limits liability for both large and small businesses, which would otherwise need to defend themselves against lawsuits over negligible amounts of time.[73] This decision specifically protects smaller employers who otherwise would not have the technological sophistication to properly track every second of the workday.[74]

B. This Ruling, Although Seemingly Inconsistent with Amaya, Is Distinguishable.

While this decision seems facially incompatible with Amaya’s holding that the PPA does not apply in Maryland, the Court illustrates a critical difference between the two cases.[75] The Court explained that while Maryland’s wage law was modeled after the 1938 FLSA—which implicitly included the de minimis doctrine—it made no indication that it also accepted the later amendments added by the PPA.[76] Therefore, its silence could be interpreted as acquiescence to all the interpretations of the 1938 laws, but not to the PPA amendments.[77]

C. The Court’s Decision Places the Burden of Absorbing the Costs of De Minimis Time on Low-Wage Employees Rather Than on Large Corporations.

The Court explained that, because the de minimis doctrine applied under Maryland law, employees of larger businesses would receive no greater protection than employees of smaller businesses.[78] While this is logical on a certain level, its practical effect is to shift the cost of uncompensated work time from large corporations to low-income employees.[79] This is true even if large corporations have access to advanced tracking technology.[80] As Martinez argued in her brief, a company as large and technologically sophisticated as Amazon, which is capable of tracking the most minute movements of millions of packages worldwide, can surely find a way to calculate the time its employees spend in a security screening.[81] This anecdote illustrates that even when companies have the resources to calculate and compensate de minimis time, they are not required to do so under Maryland law.[82]

D. This Ruling Goes Against the Modern Trend from Other Jurisdictions.

As the dissent points out, this ruling contradicts a growing trend among jurisdictions nationwide that have been reluctant to apply a de minimis rule to legislation that has not explicitly stated it.[83] While the majority found the cases from other jurisdictions distinguishable,[84] these cases still underline a growing trend away from this doctrine, which the Supreme Court of Maryland has now embraced.[85]

V. Conclusion

The Supreme Court of Maryland’s ruling in Martinez v. Amazon.com Services LLC provides protection to employers regarding de minimis time.[86] The majority’s analysis turned on the general assembly’s intent to mirror the original FLSA and its subsequent interpretations.[87] The result is the adoption of a more streamlined approach that makes it easier for employers to keep track of work time.[88] This will especially benefit smaller employers who otherwise may not have the resources to track such time.[89] The consequence of this approach is that employees will now be forced to absorb the loss of extra seconds and minutes that are harder to calculate.[90]

* Aharon Katz is a second-year evening student at the University of Baltimore School of Law and serves as a staff editor for Volume 56 of the University of Baltimore Law Review. During the day, he participates in a scholarly postgraduate program that studies Jewish law. Aharon spent the summer of 2026 as a Summer Associate for Neuberger, Quinn, Gielen, Rubin, and Gibber, P.A. In his free time, Aharon enjoys playing tennis, reading, and spending time with his wife and three children.

[1] 338 A.3d 636, 638 (Md. 2025).

[2] Id. at 655 (Watts J., dissenting) (citing Black’s Law Dictionary (12th ed. 2024)).

[3] See infra text accompanying note 46.

[4] See infra text accompanying notes 50–56.

[5] Id.

[6] 29 U.S.C. § 202.

[7] Id. § 206(a).

[8] Id.

[9] Id. § 207(a).

[10] Martinez v. Amazon.com Servs. LLC, 338 A.3d 636, 642 (Md. 2025).

[11] See generally 328 U.S. 680 (1946) (defining terms “work” and “workweek”).

[12] Id. at 690–91.

[13] Id. at 692.

[14] Id.

[15] Id.

[16] Amaya v. DGS Constr., LLC, 278 A.3d 1216, 1234 n.14 (Md. 2022) (quoting 29 U.S.C. § 251); see also Martinez, 338 A.3d at 643–44 (explaining that Anderson’s rule creating liability for employers for the time they spent walking to and from their workplaces, motivated Congress to pass the PPA to limit that liability).

[17] 29 U.S.C. § 254(a).

[18] See supra note 16 and accompanying text.

[19] See 29 C.F.R. § 785.47 (1961).

[20] Id.

[21] 571 U.S. 220, 234 (2014); 29 U.S.C. § 203(o) (“In determining . . . the hours for which an employee is employed, there shall be excluded any time spent in changing clothes . . . which was excluded . . . under a bona fide collective-bargaining agreement. . . .”).

[22] See Sandifer, 571 U.S. at 223 (arguing that protective gear is not “clothes”).

[23] Id. at 233.

[24] Id.

[25] Id. at 234 (“A de minimis doctrine does not fit comfortably within the statute at issue here. . . [as] there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood.”).

[26] Md. Code Ann. Lab. & Empl. §§ 3-401 to 3-431 (2026).

[27] Id. §§ 3-501 to 3-509.

[28] See Martinez v. Amazon.com Servs. LLC, 338 A.3d 636, 645 (Md. 2025).

[29] Lab. & Empl. §§ 3-401(d); 3-501(c)(1).

[30] Martinez, 338 A.3d at 650.

[31] Id. at 645.

[32] 278 A.3d 1216.

[33] Id. at 1239–40.

[34] See supra note 16 and accompanying text.

[35] Amaya v. DGS Constr., LLC, 278 A.3d 1216, 1240 (Md. 2022).

[36] Id.

[37] See infra text accompanying note 44.

[38] Martinez v. Amazon.com Servs. LLC, 338 A.3d 636, 639 (Md. 2025).

[39] Id.

[40] Id. at 641.

[41] Id. at 655.

[42] Id. at 641.

[43] Id.

[44] Id.

[45] Id. at 638–39.

[46] Id. at 649.

[47] Id. at 650.

[48] Id.

[49] Id.

[50] See, e.g., Marshall v. Safeway, Inc., 88 A.3d 735, 744 (Md. 2014) (describing portions of the MWHL as “the Maryland equivalent of [the] FLSA”); Martinez, 338 A.3d at 650 (“[W]hen the General Assembly enacted the MWHL in 1965, it replicated many of the FLSA’s features – such as setting a minimum wage, requiring employers to preserve employment records, and protecting employees from retaliation for whistleblowing.”) (internal quotation marks omitted).

[51] Martinez, 338 A.3d at 651.

[52] Id. at 652 n.9.

[53] Id.

[54] See supra Section II.A.

[55] See supra Section II.A.

[56] Martinez, 338 A.3d at 652.

[57] Id.

[58] Id.; see supra Section II.B.

[59] Martinez, 338 A.3d at 652.

[60] Id.

[61] Id.

[62] Id. at 655.

[63] See id. at 655–75 (Watts, J., dissenting).

[64] See id. at 658–61.

[65] Id. at 672.

[66] See id. at 661–65; see, e.g., Friolo v. Frankel, 819 A.2d 354, 363–64 (Md. 2003) (explaining that in response to difficulties in enforcing the MWHL and MWPCL, the Maryland legislature adopted a policy that if an employee won an unpaid wage claim where the wages were not withheld due to a bona fide dispute, the court would automatically award treble damages, even though the majority of claims were for between $150 and $200).

[67] Martinez, 338 A.3d at 661 (Watts, J., dissenting) (asserting that laws ensuring that employees are fairly compensated for all the work they have performed “spans the laws’ approximately sixty-year history.”).

[68] See id. at 667–70. See, e.g., In re Amazon.com, Inc., 255 A.3d 191, 193 (Pa. 2021) (“[T]here exists no de minimis exception to the [Pennsylvania Minimum Wage Act]”); Troester v. Starbucks Corp., 421 P.3d 1114, 1120 (Cal. 2018) (“Nothing in the language of the [California] wage orders or Labor Code shows an intent to incorporate the federal de minimis rule [as] articulated in Anderson.”).

[69] See Martinez, 338 A.3d at 667–70 (Watts, J., dissenting).

[70] See id. at 654 (majority opinion) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946)).

[71] See id. at 659 (Watts, J., dissenting) (citing Lab. & Emp. § 3-413(b)).

[72] See id. at 651–52 (majority opinion).

[73] See id. at 654.

[74] See also id. (stating that the Maryland Wage Laws equally “apply to employers of all sizes and that have access to varying levels of technology and other resources.”).

[75] See id. at 652.

[76] Id.

[77] Id.

[78] Id. at 654.

[79] See id. at 674 (Watts, J., dissenting).

[80] See id. (majority opinion).

[81] Id. at 653–54.

[82] Id. at 654.

[83] See supra note 68 and accompanying text.

[84] Martinez, 338 A.3d at 653.

[85] See also In re Amazon.com, Inc., 255 A.3d 191, 208 (Pa. 2021) (asserting that in light of the Sandifer decision, even the Supreme Court’s “view of the relevance of the de minimis doctrine in the interpretation of the federal FLSA going forward is no longer certain.”).

[86] See supra Section IV.A.

[87] See supra Section III.B.

[88] See supra Section IV.A.

[89] See id.

[90] See supra Section IV.C.

The Maternal Trap: How the Loss of Access to Hospitals Presents a Reproductive Justice Issue for Incarcerated Women in Rural Areas

*Alexis Berry

I. Introduction

Cuts to Medicaid following the passage of the One Big Beautiful Bill Act (OBBBA) in July 2025^[1] are expected to result in the closure of many rural hospitals, leading to higher healthcare costs and limited access to essential medical care.^[2] With “almost 60% of people in prisons and 25% of those in local jails [being held] in rural counties,” rural hospital closures will likely present a public health care crisis for incarcerated individuals.^[3] Incarcerated women requiring reproductive health services may encounter additional difficulties due to rural hospital closures, which may implicate their constitutional Eighth Amendment rights to adequate medical care.^[4]

Coming to a Courtroom Near You: Universal Jurisdiction and the Waning Era of Impunity

*Taylor Smith

I. Introduction

As conflicts erupt across the globe, justice for human rights abuses often feels elusive. Beyond the well-known International Criminal Court (ICC) or hybrid tribunals, a little-known legal principle is emerging as a viable tool for accountability: universal jurisdiction. Through this mechanism, “national judicial systems [are able] to investigate and prosecute [some] of the most serious crimes . . . no matter where they [a]re committed, and regardless of the nationality of the suspects or their victims.”^[1]

Recently, the United States, using universal jurisdiction, convicted a former Gambian soldier of torture and conspiracy to commit torture under the U.S. torture statute.^[2] This marked the first conviction of a non-U.S. citizen under the statute in U.S. history.^[3] This decision represents an important moment for the United States’ engagement with international criminal law and signals the growing normalization of universal jurisdiction as a legitimate tool for justice.^[4] By expanding the circumstances under which U.S. courts may prosecute atrocities committed abroad, contrary to its former posture, the United States is contributing to a broader effort to close the “safe havens” that have historically allowed perpetrators of international crimes to evade accountability.^[5] Universal jurisdiction’s use prompts both hope and concern about the concept of justice without borders while also offering an alternative to the gaps left by the ICC.^[6]

II. Background and Legal Framework

Customary international law consists of unwritten norms derived from consistent and widespread practices, coupled with the belief that these practices are legally binding (opinio juris).^[7] Customary international law applies to all states, unlike treaties, which bind only their signatories.^[8] States cannot invoke domestic law to excuse noncompliance with international obligations and are therefore expected to integrate treaties and customary law into national frameworks.^[9]

Following World War II, the Nuremberg and Tokyo Tribunals were established to prosecute new international crimes, such as crimes against peace, war crimes, and crimes against humanity, under the emerging principle of universal jurisdiction.^[10] The courts’ prosecutions maintained the doctrine that the alleged crimes were so grave that they were concerns of all states, or erga omnes, and violated the very substance of jus cogens, the peremptory norms that bind international law to all.^[11]

In the following decades, many countries have incorporated international crimes into domestic law.^[12] For instance, in 2024, Germany enacted the Act on the Further Development of International Criminal Law to strengthen its framework for prosecuting international crimes.^[13] In the same year, Denmark implemented reforms that incorporated war crimes, torture, and crimes against humanity into its penal code, while also expanding jurisdiction to cover anyone present in Danish territory.^[14]

U.S. law criminalizes genocide, torture, and the recruitment of child soldiers.^[15] Initially, with regard to the crime of genocide, jurisdiction applied when the acts were either committed within the United States or the nationalities of the victims or perpetrators were Americans.^[16] “In . . . 2023, President Biden signed into law the Justice forVictims of War Crimes Act, which [expands the jurisdiction of] 18 U.S.C. § 2441 . . to include any offender present in the United States, regardless of the nationality of the victim or offender.”^[17]

III. Case Studies and Recent Developments

The landmark case on universal jurisdiction arose from Augusto Pinochet’s dictatorship, which lasted from 1973 to 1990.^[18] On October 16, 1998, Pinochet was arrested in London, England, under “a Spanish [warrant] charging [him] with human rights [abuses,] including murder, torture, and [enforced d]isappearance[s] committed . . . in Chile” against nationals of various countries while president.^[19] Although he ultimately evaded trial on health grounds and died in 2006, the case set a clear precedent. It affirmed that even former heads of state could be subject to prosecution for international crimes committed abroad.^[20]

European courts expanded this precedent.^[21] In Germany, Anwar Raslan, a former Syrian intelligence officer with the General Intelligence Service, was convicted of crimes against humanity and received a life sentence for torturing over 4,000 individuals, committing sexual violence, and killing twenty-seven people while they were in a Syrian detention center.^[22] Additionally, in Switzerland, Ousman Sonko, Gambia’s former interior minister, was sentenced to twenty years in prison for crimes against humanity.^[23] In France, Kunti Kamara, a Liberian commander of the United Liberation Movement of Liberia for Democracy, was convicted of various crimes against humanity committed during Liberia’s civil war and was sentenced to life in 2022.^[24]

Most recently, in August 2025, a U.S. federal court convicted Michael Sang Correa, a Gambian national and alleged former member of the Junglers paramilitary group,^[25] of torture and conspiracy to torture during the dictatorship of Yahya Jammeh.^[26] Correa’s conviction marked the first time a non-U.S. citizen with no direct connection to the United States, other than his presence on U.S. soil, was prosecuted under 18 U.S.C. § 2340A for acts of torture committed abroad.^[27] After a five-day trial in April 2025, a federal jury unanimously found Correa guilty on all counts.^[28] In August 2025, “a federal judge [formally] sentenced . . . Correa to 810 months or 67.5 years in prison for torture committed in The Gambia in 2006.”^[29] The Correa conviction underscores a turning point: U.S. courts now recognize universal jurisdiction not merely as a theoretical principle but as an actionable legal strategy.^[30]

IV. Political Tensions from Its Usage

Early criticisms of universal jurisdiction were led by Americans like Henry Kissinger, who argued that “universal jurisdiction [i]s a breach of . . . [s]tat[e] sovereignty that creates [a] ‘universal tyranny of judges.’”^[31] Opponents also warn that these prosecutions may enable politically motivated cases against government officials, undermining diplomatic relations and national sovereignty.^[32]

Furthermore, as with the ICC, critics argue that Western states have disproportionately wielded universal jurisdiction against the Global South, with a focus on African defendants, while ignoring Western abusers.^[33] Notably, between 1961 and 2017, 45.9% of universal jurisdiction trials were against African defendants, while only 26.2% were against European defendants, 18% against Middle Eastern defendants, and the remainder against Asian, Central, and South American defendants.^[34] Moreover, in the subsequent decade (2008–2017), the share of cases involving African defendants increased to 52.9%.^[35] While African defendants continue to face prosecution, recent targets of universal jurisdiction have expanded significantly to also include Syrian officials.^[36] Despite geographical expansion, the absence of Western defendants, some from the very states driving these prosecutions, further fuels the accusations of selective enforcement and neocolonial optics.^[37]

V. The Future of Universal Jurisdiction and Why It Matters

According to TRIAL International’s Universal Jurisdiction Annual Report, there were 36 new cases lodged in 27 different countries involving at least 297 suspects.^[38] This surge shows universal jurisdiction is no longer fringe; it is becoming an actionable mechanism of global justice when traditional avenues fail.^[39] The principle’s application in cases from Pinochet to Correa illustrates how national courts can fill the gaps left by international tribunals and challenge the impunity of even the most powerful perpetrators.^[40] Yet as its reach expands, so too must intention, ensuring that prosecutions are guided by fairness, rather than politics. Furthermore, the U.S. application of this principle could enhance its legitimacy and encourage broader, more balanced enforcement and narrow safe havens to war criminals.^[41]

VI. Conclusion

Impunity often seems guaranteed when perpetrators of atrocities and crimes go unabated. However, universal jurisdiction represents both promise and peril: the promise of a world in which perpetrators of atrocity cannot escape accountability by crossing borders, and the peril of inconsistent or politicized enforcement.^[42] As the United States cautiously joins this evolving field, the question becomes not whether universal jurisdiction will grow, but who it will reach next?

*Taylor is a second-year student at the University of Baltimore School of Law and a Staff Editor for Law Review. She serves as Vice President of the International Law Society and Historian for the Black Law Students Association. A dedicated human rights advocate, Taylor is currently an extern with Ipas, a global reproductive rights organization, and with Perseus Strategies, an international law firm. She aims to bring her passion and advocacy skills to the field of international criminal law to protect and promote human rights.

[1] Universal Jurisdiction, Hum. Rts. Watch, https://www.hrw.org/topic/international-justice/universal-jurisdiction (last visited Jan. 29, 2026); accord Basic Facts on Universal Jurisdiction, Hum. Rts. Watch (Oct. 19, 2009, at 08:45 ET), https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction.

[2] US Trial Against Gambian Accused of Torture, Hum. Rts. Watch (Apr. 7, 2025, at 13:00 ET), https://www.hrw.org/news/2025/04/07/us-trial-against-gambian-accused-torture.

[3] The United States previously tried and convicted the son of former Liberian President Charles Taylor, Chuckie Taylor, in 2008 for war crimes; he was the first U.S. citizen to be convicted for “overseas torture”. The second U.S. conviction was against Ross Roggio, also a U.S. citizen, for committing torture and conspiracy to commit torture in Iraq. See US Trial Against Gambian Accused of Torture, supra note2. See also Press Release, U.S. Dep’t of Just. U.S. Att’y Off., Middle Dist. of Pa., Man Convicted of Torture and Exporting Weapons Parts and Related Services to Iraq (May 22, 2023), https://www.justice.gov/usao-mdpa/pr/man-convicted-torture-and-exporting-weapons-parts-and-related-services-iraq.

[4] Press Release, U.S. Dep’t of Just. Archives: Off. of Pub. Affs., Gambian Man Indicted on Torture Charges (Feb. 5, 2025), https://www.justice.gov/archives/opa/pr/gambian-man-indicted-torture-charges (noting that the conviction marked the first application of the Torture Act to a foreign national based solely on presence in the United States); TRIAL International, Universal Jurisdiction Annual Review, at 10–15 (2025), https://trialinternational.org/wp-content/uploads/2025/04/03_TRIAL_UJAR_2025_FINAL_DIGITAL.pdf (documenting increased global reliance on universal jurisdiction prosecutions).

[5] Q&A: The International Criminal Court and the United States, Hum. Rts. Watch (Sep. 2, 2020, at 00:00 ET), https://www.hrw.org/news/2020/09/02/qa-international-criminal-court-and-united-states (describing longstanding U.S. resistance to international criminal jurisdiction); See Henry Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Affs. 86, 86–87 (2001) (warning that universal jurisdiction threatens sovereignty); Universal Jurisdiction Annual Review, supra note 4, at 10–15 (noting increasing reliance on domestic courts to prosecute international crimes); TRIAL International, Universal Jurisdiction Law and Practice in the United States at 3–4 (May 2022), https://trialinternational.org/wp-content/uploads/2022/05/UJ-USA-1.pdf (explaining how U.S. courts have operationalized and prosecuted international crimes domestically).

[6] Universal Jurisdiction Annual Review, supra note 4, at 10–12; Q&A: The International Criminal Court and the United States, supra note 5; Factsheet: Universal Jurisdiction, CTR. FOR CONST. RTS. (Dec. 7, 2015), https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/factsheet-universal-jurisdiction.

[7] Customary International Law, Corn. L. Sch.: Legal Information Institute, https://www.law.cornell.edu/wex/customary_international_law (last visited Jan. 22, 2026).

[8] Martin Willner, Customary International Law: Can UN Guidelines Affect Domestic Laws?, COUNCIL on FOREIGN RELS. (July 30, 2013, at 10:11 ET), https://www.cfr.org/blog/customary-international-law-can-un-guidelines-affect-domestic-laws.

[9] Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No. 44, ¶ 64; see also Vienna Convention on the Law of Treaties, art. 27, May 23, 1969, 1155 U.N.T.S. 331 (“[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46 [provisions of internal law regarding competence to conclude treaties].”).

[10] Genocide was later established as well. International Criminal Justice Since Nuremberg, U.S. HOLOCAUST MEM’L MUSEUM, https://www.ushmm.org/genocide-prevention/simon-skjodt-center/work/ferencz-international-justice-initiative/transitional-justice/international-criminal-justice-since-nuremberg (last visited Jan. 22, 2026); see also Cleo Meinicke, Domestic Prosecution of International Crimes – Introduction, Pub. Int’l L. & Pol’y Grp. (Mar. 7, 2019), https://www.publicinternationallawandpolicygroup.org/lawyering-justice-blog/2019/3/7/domestic-prosecution-of-international-crimes-introduction-of-series (discussing the established crimes enforcement through the modern International Criminal Court).

[11] See Int’l L. Comm’n, Rep. on the Work of Its Seventy-Third Session, ch. IV, U.N. Doc. A/77/10 (2022), https://legal.un.org/ilc/reports/2022/english/chp4.pdf (explaining that peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in relation to which all States have a legal interest).

[12] Universal Jurisdiction Annual Review, supra note 4, at 10.

[13] Universal Jurisdiction Annual Review, supra note 4, at 10; see also Gesetz zur Fortentwicklung des Völkerstrafrechts [Act on the Further Development of International Criminal Law], July 30, 2024, Bundesgesetzblatt, Teil I [BGBl I] at 255 (Ger.) (the asserted goals of the amendments are to “close gaps in criminal liability, strengthen victims’ rights and improve the broad impact of international criminal law judgments”).

[14] Universal Jurisdiction Annual Review, supra note 4, at 10.

[15] 18 U.S.C. §§ 1091, 2340–2340A, 2442.

[16] Genocide Convention Implementation Act of 1987 § 1, Pub. L. 100–606, 102 Stat. 3045 (1988), https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg3045.pdf#page=3; Hum. Rts. & Special Prosecutions Section, U.S. Dep’t of Just. Crim. Div., Guide to Human Rights Statutes (2022).

[17] Note there have been no prosecutions under this statute to date. United States Submission: Information and Observations on the Scope and Application of the Principle of Universal Jurisdiction, UN.ORG (May 10, 2024), https://www.un.org/en/ga/sixth/79/universal_jurisdiction/us_e.pdf; 18 U.S.C. § 2441 (amending the Genocide Convention Implementation Act of 1987, notably expanding those that fall within the jurisdiction of the statute); U.S. Expands Potential for War Crimes Cases, Syria Just. & Accountability Ctr. (Jan. 18, 2023), https://syriaaccountability.org/u-s-expands-potential-for-war-crimes-cases/; Universal Jurisdiction Annual Review, supra note 4, at 10; Karen Sokol, The First Prosecution Under the War Crimes Act: Overview and International Legal Context, CONGRESS.GOV (Dec. 22, 2023), https://www.congress.gov/crs-product/LSB11091.

[18] Amnesty International, Universal Jurisdiction: Questions and Answers, AI Index IOR 53/020/2001 (Dec. 2001), https://www.amnesty.org/fr/wp-content/uploads/2021/06/ior530202001en.pdf.

[19] Belgium, France, and Switzerland too sought his extradition for these crimes. Id.

[20] Id; Jonathan Kandell, Augusto Pinochet, Dictator Who Ruled by Terror in Chile, Dies at 91, New York Times (Dec. 11, 2006), https://www.nytimes.com/2006/12/11/world/americas/augusto-pinochet-dictator-who-ruled-by-terror-in-chile-dies.html; The Pinochet Precedent How Victims Can Pursue Human Rights Criminals Abroad, Hum. Rts. Watch (Nov. 1, 1998), https://www.hrw.org/report/1998/11/01/pinochet-precedent/how-victims-can-pursue-human-rights-criminals-abroad.

[21] Universal Jurisdiction Annual Review, supra note 4, at 58–59.

[22] This is the first such conviction relating to the Assad regime after Raslan was arrested in 2019 having successfully sought asylum in Germany. Jenny Hill, German Court Finds Syrian Colonel Guilty of Crimes Against Humanity, BBC (Jan. 13, 2022), https://www.bbc.com/news/world-europe-59949924; Universal Jurisdiction Annual Review, supra note 4, at 58–59.

[23] The highest-ranking official ever tried under universal jurisdiction in Europe. Universal Jurisdiction Annual Review, supra note 4, at 10, 91.

[24] Id. at 40. Crimes included murder, enslavement, rape, torture, and cannibalism.

[25] The Junglers were a death squad that answered directly to President Jammeh and served as one of the regime’s most brutal enforcement arms from 1994 to 2016. The UN special rapporteur on torture found they carried out Jammeh’s most repressive abuses, including arbitrary detention, torture, enforced disappearance, and extrajudicial killing. US Trial Against Gambian Accused of Torture, supra note 2; Former Jungler Sentenced to Over 67 Years for Torture, TRIAL International (Aug. 22, 2025), https://trialinternational.org/latest-post/former-jungler-sentenced-to-over-67-years-for-torture/.

[26] Prosecuted under 18 U.S.C. §§ 23240–2340A. In December 2023, Correa moved to dismiss the indictment, arguing that Congress lacked authority to enact the Torture Act and that prosecuting a noncitizen for crimes committed abroad violated due process. Both motions were denied. Universal Jurisdiction Annual Review, supra note 4, at 98; Press Release, U.S. Dep’t. of Just. Archives: Off. of Pub. Affs., Gambian Man Indicted on Torture Charges (Feb. 5, 2025), https://www.justice.gov/archives/opa/pr/gambian-man-indicted-torture-charges.

[27] See US Trial Against Gambian Accused of Torture, supra note 2. The 2008 prosecution of Chuckie Taylor, son of Liberian president Charles Taylor and a U.S. citizen, was the first use of the Torture Act. Correa’s case marks its first application to a foreign national with no U.S. ties beyond physical presence. Laura Richardson Brownlee, Extraterritorial Jurisdiction in the United States: American Attitudes and Practices in the Prosecution of Charles “Chuckie” Taylor Jr., 9 Wash. U. Glob. Stud. L. Rev. 331, 332–33 (2010).

[28] Sentencing Hearing for Michael Correa Scheduled, CTR. FOR JUST. & ACCOUNTABILITY, https://cja.org/u-s-jury-finds-gambian-death-squad-member-guilty-of-torture-2-2/ (last visited Feb. 10, 2026).

[29] Sabreen Tuku, Former Jungler Sentenced for Torture, CTR. FOR JUST. & ACCOUNTABILITY (Aug. 22, 2025), https://cja.org/u-s-jury-finds-gambian-death-squad-member-guilty-of-torture-2-2-2/.

[30] See U.S. Trial Against Gambian Accused of Torture, supra note 2.

[31] Rose Mahdavieh, Beyond the Borders: The Rise of Judicial Corruption and Universal Jurisdiction, 14 U. Mia. Race & Soc. Just. L. Rev. 188, 221 (2024) (quoting Henry Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Affs. 86, 86 (2001)).

[32] While active head of state immunity is accepted, the concern of judicial reprisal for officials after leaving office still poses a threat. Basic Facts on Universal Jurisdiction, supra note 1.

[33] A large majority of the prosecuting states are from Europe, namely France, Germany, Spain, and Belgium. Universal Jurisdiction Annual Review, supra note 4, at 104–11; Melissa Hendrickse, A Chance for Africa to Counter the Pitfalls of International Criminal Justice?, AMNESTY INT’L (Apr. 22, 2024), https://www.amnesty.org/en/latest/news/2024/04/a-chance-for-africa-to-counter-the-pitfalls-of-international-criminal-justice/; Edmarverson A. Santos, The Evolution of Universal Jurisdiction in Human Rights Enforcement, Dipl. & L., https://www.diplomacyandlaw.com/post/the-evolution-of-universal-jurisdiction-in-human-rights-enforcement?utm_source (last visited Feb. 22, 2026).

[34] Maximo Langer & Mackenzie Eason, The Quiet Expansion of Universal Jurisdiction, 30 Eur. J. Int’l. L. 1779, 812–813 (2019).

[35] Id. at 812.

[36] Universal Jurisdiction Annual Review, supra note 4, at 104–11.

[37] Hendrickse, supra note 33; Q&A: The International Criminal Court and the United States, supra note 5.

[38] There was a thirty-two percent increase from the year prior. Universal Jurisdiction Annual Review, supra note 4, at 10, 13.

[39] See Universal Jurisdiction Annual Review, supra note 4, at 10.

[40] Tuku, supra note 29.

[41] A past example is the Center for Constitutional Rights’ effort to have former President Bush tried in Canada and Switzerland for detainee abuses. Similarly, Russian President Vladimir Putin has avoided countries likely to enforce arrest warrants while traveling to meet President Trump in 2025. Q&A: The International Criminal Court and the United States, supra note 5.

[42] Factsheet: Universal Jurisdiction, supra note 6.

Changes to the Public Service Loan Forgiveness Could Declare Non-Profits, State and Local Government Jobs as “Substantially Illegal”—21 States, 5 Cities and Counties, and 9 Nonprofits Are Fighting Back

*Madeline Stewart

I. Changes to PSLF and Subsequent Lawsuits

On November 3, 2025, two complaints were filed against the U.S. Department of Education and Linda McMahon, the Secretary of the Department of Education^[1], following the Department of Education’s announcement of a rule change to the Public Service Loan Forgiveness program (PSLF) on October 31.^[2] The new regulation, going into effect on July 1, 2026, has added provisions to “exclude employers that engage in specific enumerated illegal activities such that have a substantial illegal purpose” from the program to avoid the cost of subsidizing “employees of organizations that undermine national security and American values through criminal activity.”^[3] The plaintiffs, including twenty-one states and the District of Columbia, nine nonprofits, and five cities and counties, allege that the new regulation targets organizations and governments whose policies conflict with the Trump Administration’s positions on “immigration, race, gender, free speech, and public protest[.]” ^[4]

Beginning July 1, 2026, payments made by student loan borrowers who are employed by organizations the Secretary of Education determines are “engaged in illegal activity” will not qualify for PSLF credit.^[5] An additional amendment states that a student loan borrower cannot request reconsideration of the Secretary’s decision after the Secretary has determined that an employer has a substantial illegal purpose.^[6] If an employer is found to have a substantial illegal purpose, the employer will be ineligible to participate in PSLF unless “the Secretary approves a corrective action plan[,]” or ten years have passed from the Secretary’s determination.^[7]

II. History of PSLF

PSLF was created under Title IV of the College Cost Reduction and Access Act of 2007, which cancels the remaining loan balance owed by student loan borrowers who have made 120 payments to their student loan balance after October 1, 2007, while employed in public service jobs.^[8] These public service jobs include roles in government, teaching, nursing, policing, 501(c)(3) non-profits, and public interest law.^[9]

The first batch of borrowers applying for loan forgiveness after 120 payments, or ten years of monthly payments, became eligible in 2017, during the first Trump Administration.^[10] The program’s complex eligibility requirements were difficult to interpret, and the company hired to manage the program was not provided with an instructional manual, hindering its ability to provide clarification.^[11] “[B]orrower[s] who [we]re. . . ‘confused’ by the program’s requirement[s could not get answers on] whether their employment [wa]s eligible,” and the system in place made “errors in [count]ing [the amount of loan] payments,” with the responsibility falling “on. . . borrowers to catch. . . mistakes.”^[12] As a result of these issues, only ninety-six out of the 28,000 borrowers who submitted applications between October 2017 and September 2018 were approved for loan forgiveness.^[13]

In 2019, the American Bar Association (ABA) and four individual plaintiffs employed in public interest law sued the Department of Education over the denial of PSLF to ABA and to public interest lawyers working for certain non-profit classifications.^[14] Three of the individual plaintiffs were successful in arguing that the changes the Department of Education had made to PSLF, which rendered them ineligible for loan forgiveness, violated the Administrative Procedure Act.^[15]By October 2024, over a million borrowers had more than $70 billion in student debt forgiven through the program. ^[16]

III. Plaintiffs’ Concerns in the November 2025 Complaints

Both complaints filed against the Department of Education in November 2025 raised concerns that, without PSLF, high student loan debt will prevent top talent from pursuing nonprofit and government careers, opting to work for higher-paying private corporations instead.^[17] The plaintiffs are also concerned that “illegal” activities will include activities that, while legal, do not align with the Trump Administration’s policy agendas, and that the illegal purposes outlined in the rule are pretextual and target “support for immigrants, gender affirming care, diversity, equity and inclusion initiatives, and political protest.”^[18] This rule would allow the Secretary of Education to single-handedly select which employers have engaged in a “substantial illegal purpose,” a term that is overbroad and vague.^[19]

IV. Conclusion

If these changes to PSLF take effect, current and future students may be hesitant to pursue career paths that incur high student debt for modestly paying jobs, such as government and non-profit work.^[20] Those who can work elsewhere for higher pay to manage student debt may do so, effectively gutting organizations that have relied on PSLF to entice new hires.^[21] Furthermore, current and prospective students may be disincentivized from pursuing careers in causes that they believe in if their beliefs do not align with an Administration’s agenda.^[22]

*Madeline Stewart is a second-year student at the University of Baltimore School of Law and a Staff Editor for Volume 55 of Law Review. Madeline is a member of the mock trial team and the Royal Graham Shannonhouse III Honor Society. Prior to law school, she attended Towson University, majoring in Journalism and Women’s Studies. This summer, she will join Semmes, Bowen & Semmes as a Summer Associate.

^[1] Complaint, Massachusetts v. U.S. Dep’t of Educ., No. 1:25-cv-13244 (D. Mass. Nov. 3, 2025) [hereinafter No. 1:25-cv-13244 Complaint]; Complaint, Nat’l Council of Nonprofits v. McMahon, No. 1:25-cv-13242 (D. Mass. Nov. 3, 2025).

^[2] William D. Ford Federal Direct Loan Program, 90 Fed. Reg. 48966 (Oct. 31, 2025) (to be codified at 34 C.F.R. pt. 685).

^[3] William D. Ford Federal Direct Loan Program, 90 Fed. Reg. at 48966.

^[4] No. 1:25-cv-13244 Complaint, supra note 1, at 2, 19;Nat’l Council of Nonprofits Complaint, supra note 1, at 2–3, 30–31.

^[5] William D. Ford Federal Direct Loan Program, 90 Fed. Reg. at 48966.

^[6] Id.

^[7] Id. at 48966–67.

^[8] College Cost Reduction and Access Act § 401, 20 U.S.C. § 1087e(m) (requiring eligible borrowers to have made 120 payments, to be employed in a public service job during the 120 payments, and to be employed in a public service job at the time of loan forgiveness).

^[9] See Qualifying Public Services for the Public Service Loan Forgiveness (PSLF) Program,Fed. Student Aid, https://studentaid.gov/manage-loans/forgiveness-cancellation/public-service/qualifying-public-services (last visited Jan. 28, 2026).

^[10] Stacy Cowley, 28,000 Public Servants Sought Student Loan Forgiveness. 96 Got It., N.Y. Times (Sep. 27, 2018), https://www.nytimes.com/2018/09/27/business/student-loan-forgiveness.html.

^[11] Id.

^[12] Id.

^[13] Id.

^[14] A.B.A. v. U.S. Dep’t of Educ., 370 F. Supp. 3d 1, 10, (D.D.C. 2019).

^[15] Id. at 34; Qualifying Public Services for the Public Service Loan Forgiveness (PSLF) Program, supra note 9.

^[16] Making Public Service Loan Forgiveness Work for Borrowers and the American People, The White House: Council of Economic Advisors (Oct. 17, 2024), https://bidenwhitehouse.archives.gov/cea/written-materials/2024/10/17/making-public-service-loan-forgiveness-work-for-borrowers-and-the-american-people/.

^[17] No. 1:25-cv-13244 Complaint, supra note 1, at 8; Nat’l Council of Nonprofits Complaint, supra note 1, at 3.

^[18] No. 1:25-cv-13244 Complaint, supra note 1, at 2; see Nat’l Council of Nonprofits Complaint, supra note 1, at 2–3.

^[19] No. 1:25-cv-13244 Complaint, supra note 1, at 3; Nat’l Council of Nonprofits Complaint, supra note 1, at 3.

^[20] See PSLF: A Crucial Tool for Recruiting and Retaining Legal Professionals, ABA (Aug. 26, 2025) https://www.americanbar.org/advocacy/governmental_legislative_work/priorities_policy/legaleducation/pslf-homepage/pslf-overview-and-purpose/ (“81% of surveyed public-interest attorneys aware of PSLF reported that the program’s promise significantly influenced their decision to take their current job, and over half said that they likely would not have taken the job at all if PSLF didn’t exist.”)

^[21] See No. 1:25-cv-13244 Complaint, supra note 1, at 1; Nat’l Council of Nonprofits Complaint, supra note 1, at 3.

^[22] See No. 1:25-cv-13244 Complaint, supra note 1, at 8, 19; Nat’l Council of Nonprofits Complaint, supra note 1, at 9, 30.