Volume 42, Issue 1 (2024)

A Substantial Interest: Why the Government is Legally Justified in Prohibiting Disparaging Trademarks

by Jessica Mikkelson[1] and Michael Van Muelken[2]

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Table of Contents

I. Congress Has Historically Prohibited Scandalous or Immoral Trademarks

II. The Tam Court’s Determination That Trademarks Were An Expressive Speech Is Misguided

A. Trademark Denial Based on Disparaging Nature Is a Regulation of Commercial and Not Expressive Speech.

B. The Tam Court Incorrectly Applied the Central Hudson Test Because Trademarks Are Commercial Speech That the Government Has a Substantial Interest in Regulating

III. The Washington Redskins Court Correctly Determined That Trademarks Were Not Expressive Speech


Imagine sitting down on a Sunday afternoon with friends and family to watch your local football team play in “the big game.” Now picture the team being cheered on by several thousand fans. It seems like an idyllic Sunday afternoon. The only problem is that this team is named after a popular slur used to identify your racial or ethnic group. This slur is broadcast over television, the Internet, and in homes all across the country. This hypothetical is a reality for Native Americans today.

It would seem logical to change the name because it is disparaging and part of a horrible era in American history. Surprisingly, it took a large public outcry before a district court concluded that the Washington Redskins’ trademark was disparaging, and not registrable as a trademark under the Lanham Act.[3] On the other hand, the United States Court of Appeals for the Federal Circuit, sitting en banc, recently upheld the registration of the mark, “The Slants,” for an Asian-American rock band.

The history of the First Amendment is too extensive to explain fully in this Article. However, the trend in U.S. Supreme Court cases has been to find content-based restrictions unconstitutional unless the legitimate government interest withstands strict scrutiny.[4] At first glance, the Lanham Act’s prohibition on disparaging trademarks appears to be inconsistent. However, the prohibition on disparaging trademarks is different because the government is not telling people or entities that they cannot use a name, writing, or mark; all that is rejected is the government’s public validation. This is well within the government’s power.

Even though a trademark is not an absolute right, the government is not permitted to deny the application based upon a constitutionally protected right, in this instance free speech rights.[5] Additionally, the Federal Circuit Court of Appeals found that issuing a trademark is not subjected to Congress’s spending powers because the benefit is non-monetary.[6] The Lanham Act is derived from the Commerce Clause and it is designed to regulate interstate commerce.[7] Therefore, restrictions on disparaging marks do not bear directly on the objectives of protecting the owner’s investment.[8]

In considering whether or not a trademark is actually commercial speech, the Tam court found that the restrictions of the Lanham Act failed to withstand the intermediate scrutiny challenge[9]: the government restrictions on the band’s name were not narrowly tailored to meet a specific objective in which the government has a substantial interest.[10] All the arguments proffered by the government in Tam were based on the government’s desire to ban speech it finds offensive. This reasoning has never been a substantial interest in justifying any disparaging marks.[11]

This decision opens the door for a wide variety of offensive trademarks to be registered, and the Tam court recognized as much in its conclusion.[12] Prior to this case, courts took the stance that the trademark registration was not an attempt to legislate morality.[13] Rather, a trademark used government funding, a form of speech, to hold out to the world that the trademark was neither scandalous nor offensive.[14] The Tam decision has the most bearing on the Washington Redskins litigation. This Article argues that, in light of the Tam decision, it is unlikely the Washington Redskins will lose their trademark.

I.     Congress Has Historically Prohibited Scandalous or Immoral Trademarks

Congress prohibited scandalous or immoral content first in the 1905 Trademark Act. Decades passed before the administrative decisions interpreted what is scandalous by considering if it was “shocking to the sense of propriety or call out condemnation.”[15] Courts developed a two-part test to determine what is scandalous: (1) determine the likely meaning of the mark within the context of the associated goods or services in the application, any other elements in the mark, and the marketplace; and (2) evaluate whether a substantial composite of the general public would find the mark scandalous in light of the contemporary application.[16]

Throughout the years, the following categories have been prohibited from trademarks: political images, vulgar language, religious terms and icons, sexual content, and identity issues involving race, gender, or sexual orientation.[17] Once an application is processed, there may still be public opposition. A statement of use and intent is required to be filed as part of the registration process.[18] Registration is not a guaranteed use because any trademark may be challenged based on the test for scandalous content.[19]

In the 1930’s, Representative Lanham began the process of rewriting the scandalous requirement. Various speakers opposed removing the scandalous requirement and leaving the limitation on disparaging because these individuals thought it would become too narrowly interpreted.[20] By 1939, the House of Representatives passed a bill that prohibited trademarks that contained “matter which tends to disparage persons, living or dead, institutions, beliefs, or national symbols, or to bring them into contempt.”[21] It was later found that the determination of what is disparaging was too subjective.

In subsequent legislation, the term “disparage” was not removed or changed.[22] A second bill added the words “may disparage.” This was defined as “to move, direct, or develop one’s course in a particular direction; to exhibit an inclination or tendency.”[23] This is clearly broader than scandalous and leaves open the question of what is disparaging under the Lanham Act.[24] Currently, the United States Trademark and Patent Office (PTO) has the burden of showing that the trademark is perceived as disparaging before it can deny a trademark. Once the government establishes a prima facie case, the applicant has the burden of rebutting it by showing the trademark is not disparaging speech.

II.     The Tam Court’s Determination That Trademarks Were An Expressive Speech Is Misguided

Filing for a trademark is indeed speech, and it is a powerful form of commercial speech. A trademark allows individuals to benefit economically, but it in no way determines the reliability of a product because the government is not communicating a message about the product.[25] The government can make viewpoint based restrictions on commercial speech.[26] By refusing to register offensive trademarks, the government chills speech because applicants will avoid submissions that are vulnerable to a Lanham Act challenge.[27] In fact, applicant uncertainty is inevitable because the Lanham Act extends even to speech that may be disparaging, and the government is not required to prove that it actually disparages a particular group of individuals.[28] However, the government is only placing restrictions on a trademark and the applicant is still capable of using the name or communicating a message through other forms of speech.

The United States Court of Appeals for the Federal Circuit, sitting en banc recently held in In re Tam that Section 2(a) of the Lanham Trademark Act’s (“§ 2(a)”) prohibition against the registration disparaging trademarks violated the First Amendment because it constituted viewpoint discrimination.[29] Simon Shiao Tam (“Mr. Tam”) applied to the PTO for registration of “The Slants.”[30]

The PTO concluded that Mr. Tam’s proposed trademark was disparaging to people of Asian heritage and rejected the application.[31] Mr. Tam claimed that the name of the band was essentially a symbol of pride meant to “take ownership” of Asian stereotypes.[32] On review, the court of appeals determined that Mr. Tam’s proposed trademark was protected by the First Amendment and held that “§ 2(a) regulates expressive, not commercial speech.”[33] It found that strict scrutiny was the appropriate standard to apply to this type of speech restriction. Under that standard, the court stated that even if the government’s prohibition of disparaging trademarks was a regulation of commercial speech, it lacked a substantial government interest in its action in prohibiting the band’s name trademark because of its disparaging nature.[34] However, the Tam court based its conclusions on the erroneous determination that strict scrutiny review applied.

A.     Trademark Denial Based on Disparaging Nature Is a Regulation of Commercial and Not Expressive Speech.

The Tam court justified its decision by stating that although trademarks have a commercial role, § 2(a) regulated the expressive aspects of the mark.[35] The court argued that it could not sustain the PTO’s decision on this basis.[36] Through this holding, it essentially ignored decades of binding precedent. The U.S. Supreme Court roughly defined commercial speech as “speech that does no more than propose a commercial transaction.”[37] Mr. Tam unquestionably had intentions of proposing commercial transactions with his band and proposed trademark. Instead of separating the perceived commercial aspects of the proposed trademark with the expressive ones, the court of appeals should have conceded that an application for a trademark was commercial speech.

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., the Supreme Court maintained that for-profit motivation was irrelevant in terms of determining whether speech was commercial.[38] In a separate case it was also suggested that a link between products and economic drive could help determine whether speech was commercial in borderline cases.[39] In Bolger v. Youngs Drug Products Corp., the Court determined that even though a company mailed mass advertisements and had an economic motivation for doing so, this did not end the inquiry on whether the mailing was considered commercial speech or not.[40] However, these combined factors tipped the scales in favor of the government, and the court determined that the advertisements were considered commercial speech.[41]

Despite the Court’s holding in Bolger, the Tam court found that Mr. Tam’s mark had predominantly expressive aspect, rather than a commercial aspect, because of the perceived goals of the proposed band’s name.[42] Regardless of the message that Mr. Tam meant to send to the public through his band’s name, it can hardly be argued that he had no intention of promoting his brand or had no economic motive for doing so. The Bolger Court, however, also recognized that the advertisements “contain[ed] discussions of important public issues.”[43] In spite of this finding, the Bolger Court found that the factors determinative of whether speech was commercial or expressive.[44]

Without first addressing the factors provided in Bolger, the Tam court used the inextricably intertwined test, in which the court determines whether commercial and non-commercial speech are closely connected and essentially inseparable.[45] Using this test, the Supreme Court upheld a ban on private commercial enterprises (with exceptions) operating on university campuses.[46] Fox, a student, sued to allow her and her fellow students to host “Tupperware parties,” at which a company through a hostess would sell Tupperware to a group of ten or more people and also provide lessons on home economics.[47] Fox argued that the mix of commercial activity and teaching of other subjects were inextricably intertwined.[48] The Court disagreed, finding that there was nothing inextricable about selling Tupperware and providing lessons on home economics.[49] Similarly, Mr. Tam’s mark is not inextricable with promoting social change and cultural pride. The band has other means of expression at its disposal.  Therefore, since there is nothing inextricable about Tam’s cultural pride, the court should have found that “The Slants” was commercial speech subject to intermediate scrutiny.

B.     The Tam Court Incorrectly Applied the Central Hudson Test Because Trademarks Are Commercial Speech That the Government Has a Substantial Interest in Regulating

The Tam court concluded that the government failed to prove that there was a substantial government interest in § 2(a)’s prohibition on disparaging marks.[50] Its conclusion rested on the test laid out by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission.[51] Central Hudson recognized that commercial speech first “must concern lawful activity and not be misleading.”[52] Once the court has found that there is a lawful activity then court must inquire “whether the government issue is substantial[,] and if the regulation materially advances the government’s interest and is narrowly tailored to achieve that objective.”[53]

The court correctly concluded that Mr. Tam’s proposed trademark was neither unlawful nor misleading.[54] However, the court’s analysis of the second part of the Central Hudson test was flawed. The court reasoned that the interest of § 2(a) rested upon whether or not the government approved of the message behind the mark.[55] This was not correct. In the 1905 Trademark Act Congress established a two-part test to restrain the government from infringing upon speech rights or reacting to an unpopular message.[56] Under the first prong, “The Slants” mark is unfit for a trademark because the likely meaning in context with other markings and within the marketplace embodied a stereotype. “The Slants” also failed under the second prong because the general public would find the mark scandalous in light of the contemporary application. Mr. Tam’s intent was not evident in the mark, and the only message his commercial speech communicated was the band name “The Slants” itself. The public may not know that the band members are Asian and may never come to know Mr. Tam’s intent because of the off-putting name. Mr. Tam’s intent was not the norm when this word was spoken in reference to the Asian population, and history was not erased through the word’s reclamation.

Although the Tam court drew analogies between trademarks and copyright laws, the court was misguided. In a full copyrighted text, the public is able to discern the speaker’s intent through consumption of the entire work. Additionally, writings include historical events and serve to educate the general public about times when people behaved poorly so as not to repeat the mistakes in history. Finally, a written word promotes thought. Our society values an exchange of ideas and thoughts. In an effort to continue with a free exchange of ideas, it is important that government does not regulate a message because it is unpopular or reflects poorly on itself. At the same time, the government is not the messenger via copyright because credit for the idea is given to the author.[57] In contrast, a trademark is given by the government with the purpose of commercial exchange and some minimal form of reliability. A trademark does not promote one product over another, and it does nothing to advance a speaker’s thoughts. Rather the trademark confers benefits to its user without communicating anything about the producer or the reliability of the actual product. Therefore, a trademark is distinguishable from a copyright.

III. The Washington Redskins Court Correctly Determined That Trademarks Were Not Expressive Speech

The most recent string of trademark litigation prior to the Tam court was the Washington Redskins’ trademark case, Pro Football, Inc. v. Blackhorse (“PFI”).[58] This trademark, well-known to football and non-football fans alike, has been with the team since 1932 when George Preston first purchased the team.[59] Sixty years later, a group of Native Americans sought to prevent the team from further using this trademark by filing a petition with the Trademark Trial and Appeal Board (TTAB).[60] Among other things, TTAB argued that the trademark can potentially disparage Native Americans.[61] One of the most controversial developments took place when the PFI court issued a ruling in 2014 that the trademark was canceled because the team’s name was disparaging to Native Americans.[62]

Many individuals in the general public requested that the pro football team be required to change its name because it was offensive and was a racial slur that denigrates Native Americans. In reaction to that claim, the team stated that it did not wish to change the name because their intent behind the name was to celebrate the contributions made by Native Americans.[63] In light of the most recent decision made by the Tam court, the pro football team will not be required to change its name. The Tam court ignored the prior ruling in this litigation that found § 2(a) does not receive First Amendment protections and, as a form of government speech, is exempt from strict scrutiny.[64]

In fact, the PFI court was correct in finding that denying a trademark registration does not infringe upon speech rights because denying trademarks does not proscribe an individual’s conduct, only government endorsement.[65] Under this logic both Mr. Tam and the Washington football team could continue to exercise their free speech because the government did not say that they could not continue using the chosen name. Rather, the government will simply not register any disparaging or scandalous trademarks.[66] The key here is the registration, not the speech, and the commercial benefits registration confers. Mr. Tam and the Washington football team are still capable of enlightening the public of their pride in a particular heritage without a trademark. What seemed to escape the Tam court is the rationale as to why neither Mr. Tam nor the Washington football team would want to decline to do so without a trademark. That motive was purely economic in nature which suggests that a trademark was more commercial speech than expressive speech.


The Tam case represents important issues in trademark law in the United States today. In an era where Americans are becoming increasingly sensitive to hurtful stereotypes promoted by businesses, we ask ourselves how far we are willing to tolerate such symbols and whether we even have a choice in the matter. In the case of “The Slants,” the court’s decision sets a precedent that focuses on the subjective intention of those proposing the trademark. The issue in this case was not speech, but registration of the trademark itself. The government is not proposing that either entity cannot use a symbol, word, or other mark; rather that it will not register disparaging or scandalous trademarks. This is because the government has a substantial interest in preventing the perpetuation of slurs and stereotypes that are furthered every time there is an advertisement, a live event, or even a simple sale of merchandise.

[1] J.D., Hamline University School of Law. She works as a housing attorney at HomeLine.

[2] J.D., University of Minnesota Law School.

[3] 15 U.S.C. § 1051 (2012).

[4] See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (holding that a city ordinance banning hate speech is unconstitutional based on the opinion of the message expressed); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).

[5] In re Tam, 808 F.3d 1321, 1349 (Fed. Cir. 2015).

[6] Id. at 1354.

[7] U.S. Const. art. 1, §8; In re Tam, 808 F.2d at 1354.

[8] In re Tam, 808 F.3d at 1354.

[9] Id. at 1355.

[10] Id.

[11] Id. at 1357.

[12] Id. at 1357–58.

[13] In re McGinley, 660 F.2d 481, 486 (Cust. & Pat. App. 1981).

[14] Id.

[15] Jasmine Abdel-khalik, Disparaging Trademarks: Who Matters, 20 Mich. J. Race & L. 287, 294–95 (2015).

[16] Id.

[17] Id. at 296.

[18] Id. at 295.

[19] Id. at 297.

[20] Id. at 299.

[21] Id.

[22] Id. at 300.

[23] Id. at 301.

[24] Id. at 301.

[25] In re Tam, 808 F.3d 1321, 1321–22 (Fed. Cir. 2015).

[26] Id.

[27] Id. at 1340.

[28] Id. at 1341–42.

[29] Id.

[30] Id. at 1331.

[31] Id. at 1332–33.

[32] Id. at 1331.

[33] Id. at 1355.

[34] Id. at 1368–71.

[35] Id. at 1357.

[36] Id.

[37] Id. at 1339.

[38] Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 773 (1975).

[39] Leonardo Machado Pontes, Trademark and Freedom of Speech: A New Comparison Between the U.S. and the EU System in the Awakening of Johan Deckmyn v. Helena Vandersteen, 1, 6 (World Intellectual Prop. Org., Doc. Code WIPO.IPL/GE/15/T3, 2015), http://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ipl_ge_15/wipo_ipl_ge_15_t3.pdf.

[40] Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983).

[41] Id. at 67(considering three factors in determining commercial speech: (1) whether it is meant to be an advertisement; (2) whether it references a particular product; and (3) whether there is an economic motivation for disseminating the material).

[42] See In re Tam, 808 F.3d at 1338 (“Mr. Tam explicitly selected his mark to create a dialogue on controversial political and social issues. With his band name, Mr. Tam makes a statement about racial and ethnic identity. He seeks to shift the meaning of, and thereby reclaim, an emotionally charged word. He advocates for social change and challenges perceptions of people of Asian descent.  His band name pushes people. It offends. Despite this—indeed, because of it—Mr. Tam’s band name is expressive speech.”).

[43] Bolger, 463 U.S. at 67–68.

[44] Id.

[45] In re Tam, 808 F.3d at 1339 (citing Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796 (1988)).

[46] Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 471–72 (1989).

[47] Id. at 472.

[48] Id. at 474.

[49] Id.

[50] See In re Tam, 808 F.3d at 1358.

[51] Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980).

[52] Id. at 566.

[53] Id.

[54] In re Tam, 808 F.3d at 1355.

[55] Id.

[56] Act of Feb. 20, 1905, ch. 592, §§1–30, 33 Stat. 724 (repealed Lanham Act of 1946, ch. 540, 60 Stat. 427); see Abdel-khalik, supra note 13, at 294–95 (2015).

[57] Pro Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439, 442 (E.D. Va. 2015).

[58] Id.

[59] Id. at 448.

[60] Id. at 439.

[61] Id.

[62] Id.

[63] Id. at 487.

[64] Id. at 441 (“Federal law does not create trademarks.”) (quoting In re Trade-mark Cases, 100 U.S. 82, 92 (1879)).

[65] Id. at 439.

[66] Id. at 455.

Minimum Wage and the Tipping Culture Divide

Annali Cler*

On November 3rd, voters flocked to the polls, and election results gripped the nation for the following week. Although the presidential race captured headlines, another important vote occurred that day. In Florida, voters approved an amendment to the state’s minimum wage. Florida’s minimum wage for non-tipped employees will increase to $15 by 2026, while non-tipped employees will earn $11.98. Not only will this amendment make Florida one of the few states with a $15 minimum wage, but it also boosts Florida’s tipped employees well above the federal minimum cash wage and that of many states. Tipped employees have a unique pay structure, where employers only have to pay $2.13 per hour directly to the employee if that number combined with tips received adds up to the federal minimum hourly wage (or the state required wage). The obvious difference in pay raises questions about the existence of tipping culture and the need for a separate category of employees. 

The little-known history of tipping in the U.S gets its roots from racist practices following the Civil War. In the 1850s, wealthy Americans brought the practice back from Europe. Initially, many Americans opposed tipping, seeing it as an extra expense on top of the cost of food. Attitudes began to shift in the 1860s. After the Civil War, people who were freed from slavery had limited employment options and often turned to sharecropping or service positions, such as servants or porters. Tipping functioned as a way for employers to avoid paying their workers and as a sign of servitude. In 1902, a journalist wrote “[Black workers] take tips, of course; one expects that of them–it is a token of their inferiority.” Low or no wage work therefore continued to exist long after the abolition of slavery.

The development of labor law continued to make distinctions among workers. The Fair Labor Standards Act (FLSA) of 1938 exempted certain occupations from minimum wages. Employers in the agricultural and domestic sectors, jobs largely held by people of color, were not required to pay the federal minimum wage. These exemptions still exist. 

Saru Jayaraman, co-founder and president of Restaurant Opportunities Centers United (ROC United), says “[i]t’s the legacy of slavery that turned the tip in the United States from a bonus or extra on top of a wage . . . to a wage itself.” Tipping as a wage structure perpetuates low valuations on certain kinds of work, particularly service jobs. 

Further, tipped work worsens inequality in several dimensions. Research suggests that white workers receive bigger tips than black workers. Additionally, two-thirds of tipped workers in states that do not mandate full state minimum wage, which encompasses 43 states, are women. Although some argue tipping is a means to incentivize employees to work harder, the high rate of poverty for workers in restaurant industry compared to the general population suggests that tips alone do not provide a living wage, regardless of one’s work ethic.

Florida’s amendment signals acknowledgement by the public that the current federal minimum wages for non-tipped and tipped employees have failed to keep up with the cost of living. An increase in minimum wages across the board would benefit service workers, especially women and people of color, who are over-represented in that sector. Recognizing the inequitable rationales behind the distinction between non-tipped and tipped employees, Florida is moving in the right direction by bringing tipped employees above the federal minimum wage for employees generally.

*J.D. Candidate (2021), University of Minnesota Law School

The Burying of Boumediene v. Bush

Kevin Thomson*

At the University of Minnesota Law School in 2018, Chief Justice John Roberts declared that the court “erred greatly” when it gave into political pressure and upheld the internment of Japanese Americans in the “shameful” decision Korematsu v. United States. The Court is at its best, said the Chief Justice, when it stands athwart political pressure. 

One case unmentioned but nevertheless a viable candidate for the Court at its best is Boumediene v. Bush. 553 U.S. 723 (2008).  In the fog of the War on Terror, the Court held the Suspension Clause applied to Guantanamo Bay and the weak procedures provided by Congress were an inadequate substitute to habeas corpus. The legal philosopher Ronald Dworkin, writing in the pages of the New York Review of Books, declared it “a great victory.” And it was. But now, the Supreme Court and D.C. Circuit have buried the effects of Boumediene, sending a once great victory into the graveyard of constitutional law. This short blog post will outline the key holdings of Boumediene, where they have been undermined and where they survive. 

In 2006, Congress had passed the Detainee Treatment Act (DTA) which provided minimal procedures to Guantanamo detainees in the form Combatant Status Review Tribunals (CSRT), and the Military Commission Act (MCA) which stripped federal courts of habeas jurisdiction. Limited judicial review was granted to the D.C. Circuit, which could review whether the CSRTs complied with procedures promulgated by the Secretary of Defense. The plaintiffs in Boumediene challenged these laws under the Suspension Clause in Article I, Section 2 of the Constitution, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Boumediene Court addressed the case in two steps. Step 1 asked the threshold question of whether the Suspension Clause extended to Guantanamo Bay. Step 2 asked whether the CSRTs and limited D.C. Circuit review constituted an “adequate substitute” to habeas corpus. The Court answered “Yes” on Step 1 and “No” on Step 2. In doing so, Boumediene left two legacies: a functional approach to extraterritoriality and a robust interpretation of the Suspension Clause. 

The Court, in extending the Suspension Clause to Guantanamo Bay, rejected a formalist interpretation of the Clause’s reach. Justice Kennedy, writing for the majority, applied a functional test, asking, in part, whether the extension of the Suspension Clause would be impracticable and anomalous.” Prior cases had sharply limited the application of the Constitution to the de jure territoriality sovereignty of the United States or to plaintiffs with significant voluntary connections to it. It was under the guidance of these cases that the Bush Administration chose Guantanamo Bay, where the government could be unburdened by constitutional concerns. After all, Guantanamo detainees had no voluntary connections to the United States, and Guantanamo Bay, located in Cuba, was outside the de jure sovereignty of the United States. 

The Boumediene court rejected this manipulation and held the U.S. exercised de facto control over Guantanamo Bay and applying the Suspension Clause to it would not present any practical concerns. The hope was that the “impracticable and anomalous” test would spread beyond the Suspension Clause, and the government could not shed its constitutional duties by traveling abroad. 

This hope was quickly dampened. There are a number of cases to note, but two are warrant special consideration. In Alliance for Open Society, a case seeking to extend the First Amendment abroad, the Court declared: “[I]t is long settled as a matter of American constitutional law that foreign citizens outside U. S. territory do not possess rights under the U.S. Constitution.” 140 S. Ct. 2082, 2086 (2020). This proposition, while not formally overruling Boumediene, revived a formalist, line-drawing approach to extraterritoriality. 

It was in the spirit of Alliance, and not Boumediene, that this past August the D.C. Circuit shut the door on the application of procedural or substantive due process rights for Guantanamo detainees in Al Hela v. Trump. 972 F.3d 120 (2020).  There, the D.C. Circuit, citing Alliance, went out of their way to hold that the Fifth Amendment does not apply at Guantanamo Bay. Without the co-extension of the Due Process Clause, the lasting effect of Boumediene’s strong interpretation of the Suspension Clause is considerably weakened. 

The functional “impracticable and anomalous” test still applies when analyzing the reach of the Suspension Clause. And areas where the U.S. exercises de facto sovereignty – like Guantanamo Bay – are “U.S. territory,” meaning the Alliance rule does not apply. But these are small echoes for such a great case. 

The second key holding of Boumediene was its robust interpretation of the Suspension Clause. Decided in 2020, Department of Homeland Security v. Thuraissigiam is the first case interpreting the Suspension Clause after Boumediene. 140 S. Ct. 1959 (2020). In Thuraissigiam, the Court held that expediated removal procedures limiting judicial review for migrants did not violate the Suspension Clause because the plaintiff – a man seeking asylum – did not seek release but additional procedure. 

There is much to be said about how Thuraissigiam affected Boumediene from its originalism to the misinterpretation of the writ in immigration cases. But one important implication of the case is its conception of the purpose of habeas corpus. 

The interpretation of the history of habeas corpus and the current case law is split between two conceptions of habeas: a rights-centric view and a power-skeptical view. The power-skeptical view focuses an analysis of the Suspension Clause on the jailer – not the jailed. It questions the power of judiciary to review the “legality of the exercise of executive power,” as Justice Sotomayor put it in her dissent. Under this interpretation, the expediated removal procedures are unconstitutional for barring judicial inquiry into the legality of expeditated deportation orders. 

On the other hand, a rights-centric view focuses on the jailed, not the jailer. It looks to the plaintiff’s (lack of) constitutional rights, not the legality of the Executive’s actions. But standing alone, those subject to Executive detention, whether the alleged enemy combatants in Boumediene or recently arrived migrants in Thuraissigiam, are likely to have little claim to constitutional right. A rights-centric Suspension Clause is a weak Suspension Clause.

Boumediene embraced the power-skeptical view. The majority proclaimed: “The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches.” But the Court in Thuraissigiam undermined this power-skeptical view by concentrating solely on the plaintiff’s lack of right instead of the illegality of the Executive’s action. 

Some hope remains for Boumediene. The Boumediene court held “at an absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” The Court in Thuraissigiam, seizing on an apparent concession in a footnote in the plaintiff’s brief, analyzed the writ only as it existed in 1789. Future plaintiffs may be able to make claims based on post-1789 developments in the Suspension Clause jurisprudence. How the current court will handle those arguments – and whether Boumediene can be resurrected – remains to be seen. 


*J.D. Candidate, 2021.