Highest Case Note from Write-On 2024: In re Emergency Remedy by the Md. State Bd. of Elections, 292 A.3d 319 (Md. 2023).

*Ellie Roser

The Supreme Court of Maryland determined that allowing the early canvassing of absentee ballots due to emergency circumstances is a judicial function. In re Emergency Remedy by the Md. State Bd. of Elections, 292 A.3d 319 (Md. 2023).

I. Introduction

In In re Emergency Remedy by the Md. State Bd. of Elections, the Supreme Court of Maryland evaluated whether its judicial function includes the power to permit early canvassing of absentee ballots as a result of emergency circumstances.[1] Judicial regulation of absentee ballot canvassing goes to the heart of present-day skepticism in the United States election process.[2] In the wake of the COVID-19 Pandemic, over 97% of voting occurred via absentee ballots during the 2020 election cycle.[3]  The State Board of Elections (“State Board”) argued before the court that the rise of absentee voting in the 2020 election, combined with the Maryland General Assembly’s intent to make absentee voting more accessible, required lifting certain restraints on early canvassing of ballots.[4] The State Board asserted that a judicial remedy would reduce strain on local boards and allow the State Board to meet statutory deadlines necessary to finalize election results.[5] The court analyzed the circuit court’s authority under the separation of powers principle to determine if granting such an electoral remedy qualified as a judicial function.[6] The court then provided a subsequent analysis of the meaning of emergency circumstances that would permit a suspension of the Election Law.[7] The court concluded that granting an electoral remedy fell within its judicial function, and determined the imminent wave of absentee ballots was an emergency circumstance.[8]

Continue reading “Highest Case Note from Write-On 2024: In re Emergency Remedy by the Md. State Bd. of Elections, 292 A.3d 319 (Md. 2023).”

Blowing Up More Than Rockets: SpaceX and Elon Musk’s Attempt to Blow Up the National Labor Relations Board

*Erin Turvey

I. Introduction

Elon Musk is no stranger to explosions. From SpaceX rockets detonating during test flights[1] to Tesla batteries spontaneously bursting into flames,[2] Musk has seen his fair share of combustions. Now, Musk might blow up something else: the National Labor Relations Board (NLRB).[3] On January 4, 2024, Space Exploration Technologies Corp. (SpaceX) filed a lawsuit against the NLRB in the United States District Court for the Southern District of Texas[4] challenging the constitutionality of the structure of the agency’s administrative proceedings.[5]

II. The NLRB Unfair Labor Practice Charge

The lawsuit is in response to an NLRB complaint filed against SpaceX alleging unfair labor practices (ULPs).[6] The ULP charges stem from the allegedly unlawful firing of eight SpaceX employees engaged in protected concerted activity: drafting and circulating an open letter criticizing Musk  for “negatively affecting SpaceX’s reputation” through his actions, including “recent allegations of sexual harassment against him.”[7] The letter, which was shared on SpaceX’s internal Microsoft Teams channel and distributed to SpaceX executives, argued that all of Musk’s tweets are “de facto public statement[s] by the company” because of Musk’s position as “CEO and most prominent spokesperson” of SpaceX and that such statements are detrimental to SpaceX’s internal culture and external reputation.[8] Additionally, the letter requested that employees support the letter’s demands by filling out a linked survey.[9]  SpaceX allegedly responded by interrogating employees regarding the letter, making coercive statements about the concerted activity, and creating an “impression of surveillance . . . during an investigatory interview” by showing screenshots of a group chat that several  of the fired employees participated in.[10] SpaceX is now attempting to escape any potential liability in a unique way.[11] Through its lawsuit against the NLRB, SpaceX seeks to upend the established adjudication procedures of the NLRB and is asking the court to enjoin the agency from pursuing any case over which agency officials preside – including the present one.[12]

III. SpaceX’s Constitutional Claims

SpaceX’s complaint[13] relies on SEC v. Jarkesy,[14] a case pending before the Supreme Court which contends that certain agency adjudications infringe on the right to a jury trial enshrined in the Seventh Amendment[15] and, when decided by an administrative law judge (ALJ), violate separation of powers.[16]

First, SpaceX asserts that “NLRB’s ALJs are unconstitutionally insulated from removal” by the executive branch in violation of Article II of the Constitution.[17] To carry out the executive power vested in the President by Article II of the Constitution, a President has the power to remove officers that assist in carrying out executive functions.[18] Relying on the Fifth Circuit’s decision in Jarkesy, SpaceX asserts that the President’s “removal power extends to [ALJs] who ‘perform substantial executive functions.’”[19] Under current procedures ALJs are insulated from Presidential removal and “are removable only for cause, by officials who themselves are removable only for cause.”[20]

Similar to the first count, SpaceX next asserts that NLRB members are also “unconstitutionally insulated from removal” because they exercise “substantial prosecutorial, rulemaking, policymaking, and adjudicative authority,” yet enjoy “strict removal protections”[21] that allow the President to remove members only “upon notice and hearing, for neglect of duty or malfeasance in office.”[22]

Third, SpaceX asserts that by having ALJs adjudicate “private rights without a jury trial,” the NLRB violates the Seventh Amendment.[23] Citing Jarkesy, SpaceX notes that “[s]uits at common law” means “all actions akin to those brought at common law as those actions were understood at the time” the Seventh Amendment was drafted.[24] While SpaceX does not appear to challenge the constitutionality of the NLRB’s imposition of traditional equitable remedies, such as ordering reinstatement of employees and backpay without a jury trial,[25] SpaceX asserts that the NLRB’s “broader authority to award monetary damages” and expanded remedies for compensatory purposes without a jury do violate the Seventh Amendment.[26] The award of such “nonrestitutionary compensatory damages,” SpaceX argues, are a form of “legal relief” and thus are “akin to those [actions] brought at common law” for which the Seventh Amendment protects the right to a jury trial.[27] Accordingly, SpaceX asks for a judgment declaring the NLRB’s current procedures for adjudication to be unconstitutional and enjoining the NLRB from further pursuing its charge against SpaceX for ULPs in the absence of a trial by jury.[28]

IV. Conclusion

Much of SpaceX’s constitutional argument hinges on the Supreme Court’s forthcoming decision in SEC v. Jarkesy.[29] While the oral arguments in Jarkesy barely touched on the constitutionality of ALJs, commentators note that the justices were “deeply divided” on the Seventh Amendment challenge.[30] During the Jarkesy oral argument, Justice Sotomayor pressed the point that the SEC’s action was pursuing “an interest that’s possessed by the sovereign, to protect.”[31] In line with that reasoning, there could be an argument that the NLRB’s action against SpaceX is pursuing the sovereign’s right to protect “workplace democracy” rather than private interests subject to Seventh Amendment protections.[32]

Whatever the outcome of SpaceX’s suit, Musk’s argument has gained traction with other corporations, signaling further attacks on the NLRB’s authority in the future[33] and a potential need to create alternative enforcement mechanisms to continue to hold employers accountable for unfair labor practices.

Photo Credit: This work is a derivative of Steve Jurvetson, CC BY 2.0 https://creativecommons.org/licenses/by/2.0, via Wikimedia Commons.

*Erin Turvey is a third-year student at the University of Baltimore School of Law, where she is a Production Editor for Volume 53 of Law Review, a Legal Writing Fellow, a Research Fellow for the Center for Criminal Justice Reform, and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. Last summer, Erin served as a judicial intern to the Honorable Judge Douglas R. M. Nazarian at the Appellate Court of Maryland and a law clerk at Maryland Legal Aid. This summer, she is excited to join Brown, Goldstein & Levy as a summer associate.

[1] Associated Press, SpaceX Starship Launch Ends in Explosion, N.Y. Times (Nov. 18, 2023), https://www.nytimes.com/video/science/space/100000009187670/spacex-starship-explosions.html.

[2] Rob Wile, Tesla Car Battery ‘Spontaneously’ Catches Fire on California Freeway, Requiring 6,000 Gallons of Water to Put it Out, NBC News (Jan. 30, 2023, 11:47 AM), https://www.nbcnews.com/business/business-news/tesla-car-battery-fire-needed-6000-gallons-water-to-extinguish-rcna68153.

[3] See, e.g., Nick Niedzwiadek & Olivia Olander, Musk’s SpaceX Seeks to Blow Up Federal Labor Enforcer, Politico (Jan. 4, 2024, 6:01 PM), https://www.politico.com/news/2024/01/04/musks-spacex-seeks-to-blow-up-nlrb-00133919.

[4] Complaint, Space Expl. Techs. Corp. v. NLRB, No. 1:24-cv-00001 (S.D. Tex. Jan. 4, 2024). The court granted NLRB’s motion to transfer the case to the Central District of California. In re Space Expl. Techs. Corp., No. 24-40103, at 2 (5th Cir. Mar. 5, 2024) (Elrod, J., dissenting). Subsequently, SpaceX petitioned the U.S. Court of Appeals for the Fifth Circuit for a writ of mandamus to keep the suit in Texas. Id. The Fifth Circuit denied the petition. Id. at 1 (majority opinion).

[5] In re Space Expl. Techs. Corp., No. 24-40103, at 1 (5th Cir. Mar. 5, 2024).

[6] Id.; Second Amended Charge Against Employer, Space Expl. Techs. Corp., 31-CA-307446 (N.L.R.B. Dec. 15, 2023); see also Sarah Fortinsky, National Labor Relations Board Issues Complaint Against SpaceX, The Hill (Jan. 3, 2024, 6:42 PM), https://thehill.com/business/4387940-national-labor-relations-board-issues-complaint-against-spacex/.

[7] Loren Grush, SpaceX Employees Draft Open Letter to Company Executives Denouncing Elon Musk’s Behavior, The Verge (June 16, 2022, 9:05 AM), https://www.theverge.com/2022/6/16/23170228/spacex-elon-musk-internal-open-letter-behavior; see also Second Amended Charge Against Employer, supra note 6; Fortinsky, supra note 6.

[8] Grush, supra note 7.

[9] Complaint, supra note 4, at 9.

[10] Second Amended Charge Against Employer, supra note 6.

[11] Nick Robertson, SpaceX in New Lawsuit Claims NLRB Structure Violates Constitution, The Hill (Jan. 5, 2024, 9:44 AM), https://thehill.com/business/4390852-spacex-lawsuit-nlrb-constitution/.

[12] Complaint, supra note 4, at 4.

[13] While the complaint contains four counts, only three are discussed here for brevity. The fourth count asserts that “[t]he NLRB’s exercise of prosecutorial, legislative, and adjudicatory authority in the same proceedings violates the separation of powers and due process.” Id. at 19. Inter alia, SpaceX asserts that the NLRB’s procedures for determining “whether to petition for injunctive relief” involve members taking on a prosecutorial role. Id. 19–20.

[14] Jarkesy v. SEC, 34 F.4th 446 (5th Cir. 2022), cert. granted, 143 S. Ct. 2688 (2023).

[15] U.S. Const. amend. VII.

[16] SEC v. Jarkesy, No. 22-859 (U.S. argued Nov. 29, 2023); see also Complaint, supra note 4, at 2; Niedzwiadek & Olander, supra note 3.

[17] Complaint, supra note 4, at 10.

[18] Id. at 2 (citing Free Enter. Fund v. PCAOB, 561 U.S. 477, 513–14 (2010)).

[19] Id. at 2 (quoting Jarkesy, 34 F.4th at 463).

[20] Id. (citing Jarkesy, 34 F.4th at 463).

[21] Id. at 12–13.

[22] 29 U.S.C. § 153(a).

[23] Complaint, supra note 4, at 15.

[24] Id. (quoting Jarkesy, 34 F.4th at 452).

[25] Id. at 15 (citing 29 U.S.C. § 160(c)).

[26] Id. at 15–16.

[27] Id. at 15, 17.

[28] Id. at 23–24. SpaceX essentially argues that the current NLRB, under the direction of General Counsel Jennifer Abruzzo, has been seeking remedies that go beyond the traditional equitable scope of restitutionary backpay. Id. 15–17. These expanded remedies “permit[] a broad range of consequential damages,” including “monetary relief for compensatory purposes.” Id. at 16. Because these expanded remedies focus on remedying the harm done to individual employees rather than vindicating “the public interest in effecting federal labor policy,” SpaceX claims it is entitled to a jury trial where backpay is sought. See id. at 17 (quoting Chauffeurs, Teamsters & Helpers, Local 391 v. Terry, 494 U.S. 558, 573 (1990)).

[29] See supra notes 13–16 and accompanying text.

[30] See, e.g., Ronald Mann, Justices Divided Over SEC’s Ability to Impose Fines in Administrative Proceedings, SCOTUS Blog (Nov. 30, 2023, 7:28 AM), https://www.scotusblog.com/2023/11/justices-divided-over-secs-ability-to-impose-fines-in-administrative-proceedings/.

[31] See id.

[32] Congress passed the National Labor Relations Act, which created the NLRB, to “protect[] workplace democracy by providing employees at private-sector workplaces the fundamental right to seek better working conditions . . . without fear of retaliation.” About NLRB: The Law, Nat’l Lab. Rels. Bd., https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law#:~:text=National%20Labor%20Relations%20Act&text=The%20NLRA%20protects%20workplace%20democracy,representation%20without%20fear%20of%20retaliation (last visited Mar. 14, 2024).

[33] Josh Eidelson & Bloomberg, Elon Musk and SpaceX are Right about the National Labor Relations Board Being Unconstitutional, Argues Trader Joe’s, Fortune (Jan. 27, 2024, 12:21 PM), https://fortune.com/2024/01/27/elon-musk-spacex-right-nlrb-unconstitutional-says-trader-joes/.

American Prison System’s Human Rights Violations

*Kamryn Washington

I. Introduction

When the United Nations International Experts Advancing Racial Justice and Equality in Policing, visited detention centers in several different cities in the U.S., including Washington D.C., Chicago, and Atlanta, between April  and May of 2023, they saw blatant racism, child slave labor, and pregnant women giving birth in shackles.[1] Their report released on September 28, 2023 describes the shocking human right violations in the U.S. criminal system, particularly they witnessed inmates[2] “freezing without blankets, covering themselves with plastic bags to stay warm, going hungry, denied prescribed medications, suffering delusions and stuck in dirty living quarters.”[3]

The investigators discovered disturbing issues with the detention centers–one of the most striking aspects being “stark racial disparities among the subjects of the worst rights violations, including practices that are rarely documented in comparable countries.”[4] The report discussed how the “U.S. is the only country in the world that sentences children to life without parole,” with 62% of juveniles serving life without parole being of African descent.[5] It also discussed how the prison system is a “free Black workforce” and how Black pregnant women are more likely to be shackled during labor, increasing the chances of a stillborn.[6] Finally, the investigators discovered an “incommunicado detention” center in Chicago, where an arrest was made and the detainee was not provided access to a lawyer and his family was not provided information about his whereabouts.[7] 82% of the detainees in that facility were Black.[8]

To many Americans, the UN report is not surprising. If you have family members who have been in the prison system, you likely are aware that you are no longer treated as an American citizen once the government charges you with a crime. Many local efforts have been made to help fix these atrocities, yet little improvement have been made. For example, the Maryland Office of the Public Defender, Juvenile Protection Division, investigated Baltimore County Detention Center (BCDC) and documented many federal law violations; however, BCDC has made little to no change. [9]  Hopefully, the UN report will help more Americans care that the prison system is another form of racial slavery–not always used to bring about justice but instead used to create further injustices and inequities among minorities.

II. Human Right’s Violations in Baltimore’s Juvenile Detention Center

The Thirteenth Amendment freed all enslaved people—except those charged with a crime.[10] This exception has caused Americans to disregard the mistreatment of citizens who are convicted of a crime.[11] The UN issued a report detailing the human rights violations that occur in America’s prison system on a national level, but such abuse is also happening right here in Maryland.[12] On March 6, 2023, the Maryland Office of the Public Defender released a letter urging an immediate transfer of minors from the BCDC to a state facility, alleging Baltimore County correctional services had failed to address years of violating federal laws enacted to protect minors and students with disabilities.[13] In 2018, the Juvenile Protection Division (JDP) investigated the BCDC.[14] It discovered that juveniles were not separated from adult prisoners, there was inadequate supervision of juveniles, and the prison failed to provide education and mental health care as required by the Individuals with Disabilities Education Act (IDEA).[15]

The JDP investigation found that kids and teenagers at the BCDC are denied access to basic health, hygiene, and education needs.The JDP investigation revealed that newly detained kids and teenagers sleep on mats on the floor of their cells, despite rodents and human feces infesting the units.[16] The kids and teenagers detained at the BCDC remain locked in their cells for 23 hours each day. Individually, they may be permitted out of their cells around 2:30 a.m. to use the phones and face a Hobson’s choice of showering or speaking to their family––not both.[17] The kids and teenagers detained at the BCDC receive no laundry services and must wash their own jumpsuits and underwear in the sink in their cell. Their only method to get the attention of guards involves banging on their cell doors, which often goes ignored.[18]

While the kids and teenagers remain in the Intake Unit, the facility provides no schooling, despite several individualized education plans (IEPs) that federally mandate these services.[19] Additionally, requesting medical treatment is an arduous process resulting in children not seeing the doctor or nurse—before processing a sick call, these children must have a $4.00 co-pay authorized by Correctional Services § 2-118 subtracted from their inmate account.[20] Several of the children detained are Children in Need of Assistance (CINA) and do not have parents, but rather, a DSS Social Worker overseeing their legal care.[21] Consequently, they do not have access to necessary funds for medical care. Children with concussions and dental issues requesting to see a doctor have been documented waiting for 30 days for an appointment.[22]

The kids and teenagers detained also do not go outside. One child, who had been held for two years at the time of the report, had not been outside once during his detention.[23] Additionally, the children detained also do not participate in any recreation or large muscle exercises.[24]

The kids and teenagers detained do not receive mental health services despite requests to speak to a counselor (BCDC asserts juveniles receive unspecified “behavior counseling”).[25] The children detained must purchase their own hygiene products like soap and shampoo.[26] Food provided is unhealthy and inadequate,[27] and there is poor food hygiene, as plates are shoved through an opening in the cell door.[28] Additionally, if the child is asleep or simply does not answer to receive the tray, no food is given.[29]

Despite the JDP’s findings, it is now 2023, and things have yet to improve.[30]

III. Implications

Congress has enacted many federal statutes to address the appalling treatment of children in the prison system, including Juvenile Justice and Delinquency Prevention Act (JJDPA), which requires juveniles to be separated from adults unless there is reasonable cause, and the Prison Rape Elimination Act (PREA), which sets up regulation to help mitigate sexual abuse among juveniles in prison.[31] Still, such regulations rarely hold prison systems accountable because the only consequence of violating the Acts is a potential decrease in funding.[32] Managers of the prison systems are supposed to respond to the Public Defenders’ accusations of abuse; however, the response is often short, and failing to respond does not lead to enforceable consequences.[33]

Considering the monumental findings from the 2023 UN report, it is clear that BCDC is not the only detention center openly violating fundamental human and constitutional rights.[34] Children are arrested and detained prior to being convicted of a crime, denied efficient education and mental health treatment, and once they are free, they have long-term mental health issues resulting from the mistreatment that often leads them back to prison.[35] If more powerful institutions speak up about the nationwide racial prison abuse in America, more people will open their eyes to the mistreatment and help create real prison reform.

IV. Conclusions

Currently, African Americans are five times more likely to be incarcerated, with an estimated three out of four Black men expected to serve time in prison.[36] Many scholars have written books on mass incarceration as the new Jim Crow; however, few civil rights leaders are fighting for prisoner’s rights.[37] Most prisoners lack the resources to fight for their rights, so many acts and regulations are enacted to help the problem of prison abuse, but they are rarely enforced and therefore, legal tools passed for their benefits are not self-effectuating.[38] Many people write prisoners off as people who deserve mistreatment because of their alleged actions.[39] The stakeholders and victims most directly affected by these abuses do not have the political or legal capital to effectuate enforcement of laws designed to protect them. To believe in human rights is to fight for the human rights of all, so hopefully, this UN report open up Americans’ eyes so they can notice the genocides going on in their backyard. Thus, lawyers must work to enforce and strengthen prisoner’s rights enacted by Congress, yet rarely enforced.

*Kamryn Washington is a second-year student at the University of Baltimore School of Law. At school, she enjoys being a Writing Fellow, a Law Review Staff Editor, a Research Assistant for Professor Nancy Modesitt, a Teaching Assistant to Professor Michael Meyerson, and a Law Scholar for Professor John Bessler. When not in school, she enjoys serving as a judicial intern to the Honorable Judge Julie R. Rubin at the United States District Court District of Maryland. During her first-year summer, Kamryn was a legal intern at Maryland Volunteer Lawyers Service. In May, she is excited to join Semmes Bowen and Semmes as a summer associate.

[1] Daniel Dickinson, U.N. Rights Experts Slam ‘Systemic Racism’ in US Police and Courts, UN News (Sept. 28, 2023), https://news.un.org/en/story/2023/09/1141652.

[2] Id.

[3] Sam Levin, UN Group to Tour Los Angeles Jails Accused of ‘Squalid, Inhumane’ Conditions, The Guardian (Apr. 28, 2023), 

https://www.theguardian.com/us-news/2023/apr/28/united-nations-tour-los-angeles-jails-meet-families.

[4] Dickinson, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Letter from Natasha M. Dartigue, Pub. Def., Md. Off. Pub. Def., to Crim. Just. Stakeholders (Mar. 6, 2023) https://www.wmar2news.com/infocus/officials-working-to-improve-conditions-for-kids-held-at-baltimore-county-detention-center [hereinafter “Dartigue Letter”].

[10] 13th Amendment to the US Constitution: Abolition of Slavery (1865), Nat’l Archives, https://www.archives.gov/milestone-documents/13th-amendment#:~:text=The%2013th%20Amendment%20to%20the%20United%20States%20Constitution%20provides%20that,place%20subject%20to%20their%20jurisdiction.%22 (last updated May 10, 2022).

[11] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 13 (10th anniversary ed. 2020).

[12] Dickinson, supra note 1.

[13]Dartigue Letter, supra note 9.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Dickinson, supra note 1.

[35] Dartigue Letter, supra note 9.

[36] Alexander, supra note 11, at 9; Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sentencing Project (Oct. 13, 2021), https://www.sentencingproject.org/reports/the-color-of-justice-racial-and-ethnic-disparity-in-state-prisons-the-sentencing-project/.

[37] Alexander, supra note 11, at 11.

[38] Id. at 11, 13.

[39] Id. at 17.

Is Trump’s Name ‘Too Big’ to Trademark?

*Amanda Fruman

I. Introduction

On November 1, 2023, the Supreme Court of the United States heard oral arguments in Vidal v. Elster.[1] The outcome of this case has the potential to affect the legal dynamic between trademark restrictions and protected free speech.[2]  At issue in Vidal v. Elster is a failed trademark attempt of the phrase, “TRUMP TOO SMALL.”[3]

II. The Dispute

In 2018, Steve Elster, a California labor law attorney and “politically active Democrat,”[4] applied for federal registration to trademark the phrase “TRUMP TOO SMALL” as political commentary on former President Trump.[5] The trademark sought to enable Elster to sell merchandise using the phrase, popularized in a 2016 primary debate where Senator Marco Rubio poked fun at the size of former President Trump’s hands.[6] Elster argued that with the trademarked phrase he intended to “convey[] that some feature of [former] President Trump and his policies are diminutive.”[7] The U.S. Patent and Trademark Office (USPTO) rejected Elster’s application for the trademark under 15 U.S.C § 1502(c) and Section 2(a).[8] The USPTO based its decision on the notion that Elster did not receive permission from the former President to trademark his name and that the mark “falsely suggested a connection” to former President Trump.[9] Elster appealed the decision to the USPTO Appeal Board.[10] The USPTO Appeal Board upheld the denial under Section 2(c) because of its use of former President Trump’s name without his consent. It found a compelling government interest in upholding the statute, such as protecting the individual’s rights.[11] The USPTO Appeal Board conceded that the USPTO did not have jurisdiction to address First Amendment concerns.[12] Elster then appealed the decision to the U.S. Court of Appeals for the Federal Circuit.[13]

III. The Appeal

Before the Federal Circuit, Elster argued that the application of the Latham Act unconstitutionally restricted his freedom of speech rights under the First Amendment.[14] Compelled by this argument, and concluding that a restriction of free speech of this magnitude should be subject to intermediate scrutiny at a minimum,[15] the court reversed the judgment of the Appeal Board.[16] The court also found no important¾let alone compelling¾state interest to meet the heightened threshold required by intermediate scrutiny.[17] Therefore, the USPTO could not justify its restriction on Elster’s First Amendment Rights.[18] The court did not find the USPTO’s arguments in favor of public interest or for privacy significant enough to outweigh Elster’s constitutional right to free speech.[19] Following the decision, the United States petitioned the Supreme Court.[20] The Court granted cert in June 2023 and heard oral arguments as part of the 2023 September Term.[21]

IV. The Oral Arguments

The question posed to the Supreme Court in November was: “[d]oes the refusal to register a trademark under 15 U.S.C § 1052(c) when the mark contains criticism of a government official or public figure violate the Free Speech Clause of the First Amendment?”[22] The Court’s resolution of this case may impact the scope of trademark law proportioned against the fundamental right to free speech.

The counsel for the United States argued first that Section 1052(c) “imposes a condition on a federal benefit, not a restriction on speech.”[23] This means that Elster may not be able to trademark the phrase, but he could still sell shirts with that slogan if he wished.[24] Secondly, the United States argued that because Section 1052(c) was viewpoint neutral, meaning it applies to all trademarks equally regardless of the message, the provision should not be treated as discriminatory.[25] Finally, the United States argued that granting Elster the trademark has the potential to stifle political expression because the registration could “provide[] enhanced mechanisms for the mark owner to restrict the speech of his competitors.”[26]

In response, Elster’s counsel argued that Section 1052(c) should be subject to heightened scrutiny because it selectively “withholding [] generally available legal protections is a substantial burden on speech.” [27] Secondly, counsel argued the clause was meant to protect the “feelings of public figures,” which is unrelated to the purpose of trademark law. [28] And finally, Elster’s counsel argued that the Section was viewpoint discriminatory because it allows for public figures to register marks that are “presumably positive views about themselves” while limiting others from sharing adverse views without the figure’s consent.[29]

V. Conclusion: Can Critical Speech of a Living Person be Trademarked Speech in Alignment with the First Amendment?

This case poses unique questions regarding the scope of trademark law and the scope of free speech protection over critical speech of public figures. The Federal Circuit Court acknowledged that the “right to criticize public men” is “[o]ne of the prerogatives of American citizenship.”[30] Even so, the use of critical language makes it harder to gain the requisite consent of the living individual to trademark the phrase, a requirement of Section 2 of the Lanham Act.

Thus, the Supreme Court could find that Section 2 of the Lanham Act contradicts Elster’s First Amendment right to share and profit from this critical phrase. Since three of the seven justices are Trump appointees,[31] it will be all the more interesting to see if the person at the epicenter of the critical speech case impacts the court’s resolution of the statute’s constitutionality.

*Amanda Fruman is a second-year student at the University of Baltimore School of Law. At school, she enjoys being a Law Review staff editor, a member of the Law School’s Honor Board, a University-Wide Conduct Board Member, a Teaching Assistant to Professor Amy Sloan, and a Law Scholar for Professor Dionne Koller. During her first-year summer, Amanda served as a judicial intern to the Honorable Chief Justice Matthew Fader at the Supreme Court of Maryland. In May, she is excited to join Miles and Stockbridge as a summer associate.

[1] See generally Transcript of Oral Argument, Vidal v. Elster, (2024) (No. 22-704) https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-704_g3bi.pdf. 

[2] Vidal v. Elster, SCOTUSblog, https://www.scotusblog.com/case-files/cases/vidal-v-elster/ (last visited Feb. 22, 2024).

[3] Id.

[4] Jimmy Hoover, Meet the Labor Lawyer Whose Anti-Trump Slogan Is Now at Supreme Court, Nat’l L. J. (June 6, 2023, 6:15 PM), https://www.law.com/nationallawjournal/2023/06/06/meet-the-labor-lawyer-whose-anti-trump-slogan-is-now-at-supreme-court/?slreturn=20240218104202.

[5] Amy Howe, Justices Take Up “Trump Too Small” Trademark Case, SCOTUSblog (June 5, 2023, 11:22 AM), https://www.scotusblog.com/2023/06/justices-take-up-trump-too-small-trademark-case/.

[6] Id.; see also In Re: Steve Elster, No. 20-2205, 1, 2 (Fed. Cir. 2022), https://cafc.uscourts.gov/opinions-orders/20-2205.OPINION.2-24-2022_1913245.pdf. 

[7] Id.

[8] John Elwood, Prohibiting Trademarks Using Other People’s Names ¾ and Hypothetical Jurisdiction, SCOTUSblog (June 1, 2023, 2:43 PM), https://www.scotusblog.com/2023/06/prohibiting-trademarks-using-other-peoples-names-and-hypothetical-jurisdiction/.

[9] Id.

[10] Vidal v. Elster, Oyez, https://www.oyez.org/cases/2023/22-704 (last visited Mar. 26, 2024).

[11]  Id.

[12]  Id.

[13] Id.

[14] Steve Elster, No. 20-2205, 1, 4 (Fed. Cir. 2022).

[15] Id. at 2–4.

[16] Id. at 9.

[17] Id. at 19.

[18] Id. at 19.

[19]  Id. at 11–17.

[20] Vidal v. Elster, supra note 2.

[21] Id.

[22] Vidal v. Elster, supra note 10.

[23] Transcript of Oral Argument, supra note 1 at 3.

[24] Transcript of Oral Argument, supra note 1 at 3.

[25] Transcript of Oral Argument, supra note 1 at 4.

[26] Transcript of Oral Argument, supra note 1 at 4.

[27] Transcript of Oral Argument, supra note 1 at 43.

[28] Transcript of Oral Argument, supra note 1 at 43.

[29] Transcript of Oral Argument, supra note 1 at 43–44.

[30] Steve Elster, No. 20-2205, 1, 10 (Fed. Cir. 2022).

[31]Supreme Court Nominations (1789-Present), U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm,  (last visited Oct. 17, 2023).

Xylazine is Proliferating the Illicit Drug Supply. The States and Federal Government are Responding with Legislation and Executive Action.

*Erin Daneker

I. Introduction

While the United States continues to grapple with how to best address the opioid epidemic, states are now confronted with how to respond to xylazine. Also known as “tranq,”[1] xylazine is a non-opioid commonly used for veterinary purposes[2] that has infiltrated the illicit drug supply and is often used in conjunction with fentanyl.[3] Xylazine is known for its adverse health effects on humans, including decreased respiratory function and the development of skin lesions that lead to necrosis and may require limb amputations.[4] The Food and Drug Administration has not approved xylazine for human use,[5] nor has Congress or the Drug Enforcement Administration taken action to legislatively or administratively schedule the drug under the Controlled Substance Act (CSA).[6] As a result, xylazine is not a scheduled drug under the CSA and thus eludes federal regulation and presents unique challenges, requiring both the federal and state governments to strategize on how to best prevent drug overdoses. Facing an already lethal illicit drug supply, the federal government,[7] governors,[8] and state legislatures[9] are responding in a myriad of ways, ranging from criminalization and drug scheduling,[10] to the decriminalization of harm reduction strategies such as drug testing strips.[11] Confronting the overdose epidemic requires an all-hands-on-deck approach that embraces policies that address the proliferation of xylazine, as well as strategies that can be used to address future changes in the illicit drug supply.

II. The Federal Government’s Response

In June 2023, the Centers for Disease Control and Prevention reported that xylazine-related deaths first occurred in 2018 and the presence of the substance is now being detected in fatal overdoses at an increased frequency across the United States.[12] This finding has spurred action from both the White House and Congress.

In April 2023, the White House Office of National Drug Control Policy officially designated fentanyl that is adulterated or associated with xylazine as an emerging threat to the U.S.[13] The designation led to the Biden-Harris Administration executing a whole-of-government response[14] that culminated in a National Response Plan to Fentanyl Combined with Xylazine.[15] This plan addressed xylazine testing, treatment and supportive care protocols, comprehensive data systems, strategies to reduce the illicit supply, and rapid research.[16]

Congress has also sought to address the threat of xylazine at the national level by introducing and passing legislation to further research and regulate the drug. For example, Congress passed the TRANQ Research Act,[17] which requires the National Institute of Standards and Technology to research and identify additional methods for the detection and responsible handling of the drug.[18] Another bill, The Combating Illicit Xylazine Act,[19] seeks to list the drug as a controlled dangerous substance within the CSA and to create penalties for its unlawful use and distribution.[20] Adding xylazine to the CSA would then permit the Drug Enforcement Agency to regulate the substance.[21] Congress’s interest in using its legislative powers to address xylazine, whether through additional research, drug scheduling, or both, indicates its awareness of the lethality of the drug and the need for action to assist the states and the nation in tackling this next evolution of the drug epidemic.

III. State Responses

The federal government is not the only actor working to combat the increase in xylazine in the illicit drug market. State governments have also started using their legislative and executive authorities to address the proliferation of xylazine in their communities.

Governors across the country have harnessed their executive powers to respond to xylazine.[22] Some governors have issued executive orders[23] or press releases[24] announcing their intent to schedule xylazine as a controlled substance within their own state-level controlled substance statutes using a regulatory process. Under the regulatory process, states can temporarily schedule a drug when an emergency exists if the statute allows.[25]

State legislatures are also determining how to address the proliferation of xylazine in the illicit drug supply. In an attempt to address the threat immediately, some states have passed[26] or introduced[27] legislation that schedules xylazine as a controlled substance, which frequently attaches criminal penalties. Scheduling a drug can be an effective way to quickly address changes in the drug supply but can also and problematic because it further criminalizes substance use disorder by applying penalties, such as imprisonment and fines, for the possession and use of scheduled drugs.[28]

Some states seek to better understand the extent to which xylazine persists in the drug supply. For example, states can pass legislation that requires a coroner to perform a toxicology screening if the coroner reasonably believes an individual’s death was caused by an opioid or if the person was administered an opioid intervention drug and was unresponsive to the drug.[29] Because xylazine is not an opioid, overdose reversal drugs, such as naloxone, may not be as effective in preventing an overdose death.[30] It is important for states to consider legislation like this because jurisdictions may not currently be testing for xylazine in clinical, forensic laboratory, or toxicology screenings.[31] Results from testing and toxicology screenings can provide jurisdictions with a better understanding of the extent to which xylazine is in the illicit drug supply.

State legislatures are also moving to decriminalize drug testing strips by excluding them from the definition of “drug paraphernalia.”[32] Those states that specifically carve out fentanyl test strips will most likely have to amend their existing statutes to include xylazine test strips, which would otherwise be considered drug paraphernalia of which possession is potentially subject to criminal penalties. To avoid the need to amend the statute to account for drug-checking equipment such as test strips, states could consider exempting all drug test strips from the paraphernalia definition.[33]

As the opioid crisis continues to evolve and as states adjust their strategies to reign in the immediate threat of xylazine, states should also consider the entire continuum of care for substance use disorder. This can include expanding opportunities and access to alternatives to incarceration such as pre-arrest deflection, diversion, drug courts, and low-barrier entry to treatment.[34]

IV. Conclusion

Xylazine is the newest substance to enter the illicit drug supply, and both federal and state governments need to act with urgency. However, both authorities should bear in mind that the drug supply will likely continue to evolve. No one legislative or executive action will curtail illicit drug use, so the federal and state governments must continue to find innovative ways to address the issue. The federal and state governments would be wise to not only implement strategies to address the current threat of xylazine but also engage in long-term planning to address further evolutions of illicit drug use.

Photo Credit: Center for Disease Control and Prevention

*Erin Daneker is a second-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review and a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society. In addition to being a law student, Erin currently works full-time as a policy analyst at the National Governors Association. Erin received her bachelor’s degree in political science and public policy from St. Mary’s College of Maryland. Like millions of Americans, Erin has lost a family member to the opioid epidemic. She encourages people to carry an overdose reversal medication, such as naloxone, and treat people who use drugs with compassion.

[1] Drug Enf’t Admin., DEA-DCI-DIR-001-023, The Growing Threat of Xylazine and its Mixture with Illicit Drugs (2022).

[2] Id.

[3] Id. at 1.

[4] Id. at 2.

[5] See id. at 1.

[6] 21 U.S.C. § 812.

[7] See infra Section II.

[8] See infra Section III.

[9] See infra Section III.

[10] See infra Section III.

[11] See infra Section III.

[12] Mbabazi Kariisa, et al., Illicitly Manufactured Fentanyl-Involved Overdose Deaths with Detected Xylazine – United States, January 2019-June 2022, CDC (June 30, 2023), https://www.cdc.gov/mmwr/volumes/72/wr/mm7226a4.htm.

[13] Press Release, The White House, Biden-Harris Administration Designates Fentanyl Combined with Xylazine as an Emerging Threat to the United States (Apr. 12, 2023), https://www.whitehouse.gov/ondcp/briefing-room/2023/04/12/biden-harris-administration-designates-fentanyl-combined-with-xylazine-as-an-emerging-threat-to-the-united-states/. 

[14] See generally id.

[15] Off. of Nat’l Drug Control Pol’y, Exec. Off. of the President, Fentanyl Adulterated or Associated with Xylazine Response Plan (July 2023), https://www.whitehouse.gov/wp-content/uploads/2023/07/FENTANYL-ADULTERATED-OR-ASSOCIATED-WITH-XYLAZINE-EMERGING-THREAT-RESPONSE-PLAN-Report-July-2023.pdf.

[16] Id.

[17] Testing, Rapid Analysis, and Narcotic Quality Research Act of 2023, Pub. L. No. 118-23, 137 Stat. 125.

[18] Id.

[19] Combating Illicit Xylazine Act, S. 993, 118th Cong. (2023).

[20] Id.

[21] Lisa N. Sacco & Hassan Z. Sheikh, Cong. Rsch. Serv., IN12086, Xylazine: Considerations for Federal Control 1 (2023).

[22] See State and Federal Actions to Respond to Xylazine, Nat’l Governors Ass’n (May 9, 2023) https://www.nga.org/news/commentary/state-and-federal-actions-to-respond-to-xylazine/. 

[23] E.g., Ohio Exec. Order No. 2023-08D (Mar. 28, 2023), https://content.govdelivery.com/attachments/OHIOGOVERNOR/2023/03/29/file_attachments/2451030/Signed%20EO%202023-08D.pdf; 27 Del. Reg. Regs. 7 (July 1, 2023).

[24] E.g., Press Release, Governor Shapiro Directs Administration to Schedule Xylazine as a Controlled Substance, Taking Action Against Dangerous Drug Contributing to Opioid Overdoses (Apr. 18, 2023), https://www.governor.pa.gov/newsroom/governor-shapiro-directs-administration-to-schedule-xylazine-as-a-controlled-substance-taking-action-against-dangerous-drug-contributing-to-opioid-overdoses/.

[25] See, e.g., Ohio Rev. Code Ann. § 119.03(G) (West 2022) (describing the governor’s powers to authorize “the immediate adoption, amendment, or recission of a rule” when an emergency exists).

[26] E.g., S. 0738, 2023 Sess. (R.I. 2023) (codified at R.I. Gen. Laws § 21-28-2.08 (2023)) (scheduling xylazine as a Schedule V drug); S.B. 546, 86th Leg., 2023 Reg. Sess. (W. Va. 2023) (codified at W. Va. Code § 60A-2-210 (2023)) (scheduling xylazine as a Schedule IV drug); S.B. 189 152nd Gen. Assemb. (Del. 2023) (codified at Del. Code. Ann. tit. 16 § 4718 (2023)) (scheduling xylazine as a Schedule III drug).

[27] E.g., H.B. 3873, 103rd Gen. Assemb. (Ill. 2023) (classifying xylazine as a Schedule II drug); S. 3902, 220th Leg. (N.J. 2023) (classifying xylazine as a Schedule III drug).

[28] See Aila Hoss, Decriminalization As Substance Use Disorder Prevention, 51 U. Tol. L. Rev. 477, 483–84 (2020).

[29] See H.B. 1286, 123rd Gen. Assemb. (Ind. 2023) (codified at Ind. Code § 36-2-14-6).

[30] See Drug Enf’t Admin, supra note 1, at 3; Kariisa, supra note 12.

[31] See Drug Enf’t Admin, supra note 1, at 1.

[32] E.g., H.B. 287, 2023 Sess. (N.H. 2023) (exempting drug testing strips from the definition of drug paraphernalia); S.B. 189 152nd Gen. Assemb. (Del. 2023) (exempting drug testing strips from the definition of drug paraphernalia).

[33] See generally Fentanyl Test Strips, Legis. Analysis & Pub. Pol’y Ass’n (May 2021), https://legislativeanalysis.org/wp-content/uploads/2021/06/Fentanyl-Test-Strips-FINAL.pdf (describing the legal challenges of the use of fentanyl test strips).

[34] See, e.g., Nat’l Governors Ass’n, Implementing Best Practices Across the Continuum of Care to Prevent Overdose (Aug. 2023), https://www.nga.org/wp-content/uploads/2023/08/2023Aug_Roadmap_Best_Practices_Prevent_Overdose.pdf; Deflection and Pre-arrest Diversion to Prevent Opioid Overdose, Nat’l Couns. for Mental Wellbeing, https://www.thenationalcouncil.org/program/deflection-and-pre-arrest-diversion-to-prevent-opioid-overdose/ (last visited Mar. 20, 2024); David Lucas & Aaron Arnold, Court Responses to the Opioid Epidemic: Happening Now, Ctr. for Ct. Innovation (Jul. 2019), https://www.innovatingjustice.org/sites/default/files/media/document/2019/Handout_HappeningNowOpioid_07172019.pdf.