Making the Case for Agencies: Why the Administrative State Should be Defended in a Moment of Distrust Towards the Federal Bureaucracy

By Luke Colomey & Andrew Turnbull

A special thanks to Northeastern University School of Law Professor Rachel Rosenbloom, for her inspired teaching and love of agencies.

Introduction

The hundreds of wide-ranging United States federal agencies and sub-agencies may seem like nothing more than an “alphabet soup” of abbreviations to many, but their importance to the history and future of the country is unquantifiable. Agencies are an admittedly strange beast, as they represent something of a delicate bargain in the American system of government; agencies are part “legislative” (proposing and promulgating “final” regulations), part “executive” (investigating and prosecuting different crimes and infractions), and part “judicial” (adjudicating various disagreements through “Administrative Law Judges”). 

The Current Political & Legal Landscape

In recent years, agencies have been in the headlines as a result of several monumental and (potentially) game-changing administrative law rulings by the United States Supreme Court, including West Virginia v. EPA (2022) (creating the “major questions doctrine” and ensuring that the power to enact wide-reaching change lay in the hands of Congress, rather than agencies), SEC v. Jarkesy (2024) (requiring juries in certain agency prosecutions, thus likely decreasing the number of in-house agency adjudications), and Loper Bright Enterprises v. Raimondo (2024) (overruling the longstanding “Chevron deference” doctrine which required courts to defer to an agency’s own interpretation of the statutes that created it). 

Moreover, following the results of the 2024 Presidential and Congressional elections, an impending second Trump Administration backed by a Republican-controlled House and Senate bodes ill for the federal administrative state that has caught the eye of the conservative machine. Shortly before the latest elections, current Supreme Court Justice Neil Gorsuch published a book titled “Over Ruled: The Human Toll of Too Much Law” in which he in part offers his longstanding “rebukes to the administrative state.” Subsequently, in the months before his inauguration, President Trump has announced his intention to eliminate the Department of Education (whether he has the power to do so is another matter) and Robert F. Kennedy Jr. (Trump’s nominee for Health and Human Services Secretary) went on record as planning to close “entire departments” of the Food & Drug Administration. Additionally , the Trump administration seems poised to challenge the Chair of the Federal Reserve Jerome Powell’s refusal to resign (with President Trump stating he believes that Powell would leave if he “told him to”), and a Texas district court declared that the National Labor Relations Board (an agency that has been around since 1935) is unconstitutional because it similarly does not allow for board members to be removed at the whim of the president. There is surely more to come. 

Defending Agencies

Increasingly, the narrative being pushed about administrative agencies is that they create a kafkaesque nightmare that ensnares the unaware, ordinary person in violations of some vague and unnecessary regulation. However, this narrative ignores all of the integral work that agencies do every day to ensure the laws that protect the American people from scams, pollution, discrimination, monopolies, and more, are understandable, applied, and enforced with consistency for the betterment of all.  This article’s aim is to “make the case” for why agencies should be defended and preserved. With such a large number of agencies, each with expertise and power in a vast spectrum of different areas, the most effective method of doing so is shining a spotlight on a variety of recent noteworthy agency actions (whether they be proposed regulations, final regulations, or guidance documents). What follows is a collection and summarization of such agency actions.

Recent Agency Regulations & Guidance

FDA: Final Rule and Guidance on Direct-to-Consumer Prescription Drug Advertisements

On November 21, 2023, after fifteen (15) years of development, the Food & Drug Administration (“FDA”) issued a final rule requiring clear language for Direct-to-Consumer prescription drug advertisements released on television and radio. On December 26, 2023, the FDA issued a guidance document meant to help small entities navigate this new rule which made clear that advertisements about prescription drugs must be presented in a “clear, conspicuous, and neutral manner.” The final rule is meant to ensure consumers understand the material information by requiring simple language; normal speech speed; dual presentation in audio and text; and visuals and music that do not distract from the information given. The nominee for U.S. Health Secretary, Robert F. Kennedy Jr., purportedly approves of this final rule, based on his stance of eliminating television drug advertisements in their entirety.

DOJ & FTC: Horizontal Merger Guidelines

On December 18, 2023, the Antitrust Division of the Department of Justice and the Federal Trade Commission (“FTC”) released updated “Merger Guidelines” as part of an effort to revitalize the dormant area of antitrust law and crack down on the increasingly anticompetitive horizontal mergers that had been approved in the preceding decades. This document helps both companies to comply with the antitrust laws and provides litigators with a useful tool to help analyze companies’ potential mergers and structure their argument accordingly. 

FEC: Reworked Political Candidates’ Salary

On March 1, 2024, the Federal Election Commission (“FEC”) promulgated a final regulation allowing non-incumbent federal political candidates (as opposed to federal political officeholders) to receive a capped salary from their campaign funds under certain conditions. The clear purpose of this change is to “mak[e] it easier for everyday people to run for office and have a fighting chance to represent their communities in Congress.”

FNS: Update to the WIC Food Package

On April 18, 2024, the Food and Nutrition Service (“FNS”) updated the Women, Infants, and Children (“WIC”) WIC food packages, which are benefits designed to supplement the diets of income-eligible pregnant, breastfeeding, and non-breastfeeding postpartum individuals, infants, and children up to five years of age with foods designed to address their specific nutritional needs. These food packages are supposed to be updated every 10 years in order to reflect new understandings in nutritional science, public health concerns, and cultural eating patterns. After a report was published in 2017 by the National Academies of Science, Engineering, and Medicine (“NASEM”) on the changes required in the WIC packages in 2017, FNS began working to update these food packages. The new changes provide (1) greater flexibility for participants with dietary restrictions (religious or other); (2) expanded availability and more options for fruits, vegetables, grain, and canned fish; and (3) more support for individual breastfeeding goals to help establish and sustain long-term breastfeeding. 

EPA: Four Final Rules to Reduce Pollution From Fossil Fuel-Fired Power Plants

On April 25, 2024, the Environmental Protection Agency (“EPA”) announced four final rules aimed at reducing pollution from fossil fuel power plants: (i) Greenhouse Gas Standards and Guidelines for Fossil Fuel-Fired Power Plants; (ii) Mercury and Air Toxics Standards ("MATS"); (iii) Steam Electric Power Generating Effluent Guidelines; and (iv) Legacy Coal Combustion Residuals Surface Impoundments and CCR Management Units. These rules were written intentionally to avoid the issues the Supreme Court mentioned in West Virginia v. EPA where the court struck down similar efforts using the previously mentioned “Major Questions Doctrine.” It is almost certain that these laws will still face legal challenges. In the meantime, the Supreme Court has turned down requests to grant a stay for any of the rules while they are being challenged in the courts.

EEOC: Updated Enforcement Guidance on Workplace Harassment

On April 29, 2024, the Equal Employment Opportunity Commission (“EEOC”) issued updated enforcement guidance on harassment in the workplace for the first time since 1999. In developing this guidance, “the EEOC received over 37,000 comments.” As for the substance, the EEOC updated guidance in accordance with new laws (such as the Pregnant Workers Fairness Act) and new case holdings (like that of Bostock v. Clayton County, finding that Title VII protects employees from being discriminated against based on their sexual orientation), and provided a plethora of unlawful harassment examples based on decades of cases and thousands of comments. This EEOC final guidance will be invaluable in helping employers comply with the ever-changing EEOC laws, informing employees about their rights, and helping litigators navigate the complex situations under these laws. 

FTC: Non-Compete Clause Rule

On May 7, 2024, the Federal Trade Commission (“FTC”) promulgated a regulation banning “non-compete clauses,” a term of a contract that prohibits a former employee from working in the same or similar industry, usually limited by geography and/or time. This regulation was set to take effect on September 4, 2024, but before that date could be reached, a Florida District Court enjoined the rule from becoming effective against a specific party, and a Texas District Court set aside the rule nationwide, while a Pennsylvania District Court upheld the FTC’s regulation. The FTC has appealed the Texas court’s ruling to the Fifth Circuit.

FCC: Disclosure of AI in Political Ads

On July 25, 2024, the Federal Communications Commission (“FCC”) announced a proposal to require the disclosure of generative Artificial Intelligence (“AI”) used in political advertisements. The period for notice and comment on the proposed regulation has passed. Interestingly, after the FCC’s statement, the FEC announced that it would not pursue the same. 

Conclusion

When actually digging into the actions that agencies perform day-to-day, instead of merely focusing on the worst-case-scenarios that are highlighted in certain narratives, one will begin to understand how crucial agencies are to the infrastructure of the federal government. Of course, agencies (like any arm of the government) have the potential to (and in practice do) make bad rules, become subsumed by big personalities, create bureaucracy, clash with other actors, cause public scandals, and make mistakes. While no one denies that Congress needs to step up and start taking a more active role in the oversight of the agencies that act in their name, the reality is that Congress is mired in political infighting, culture wars, and running for re-election. Additionally, agencies themselves are able to promulgate and update laws that Congress simply does not have the time for; regulate niche areas that would otherwise go overlooked; provide guidance for how to comply with complex laws; do the heavy lifting in regards to public feedback and conducting fact-finding and practical studies; and address cutting-edge problems that may otherwise take Congress years to address. At bottom, these agencies provide the expertise, the commitment, and the will to allow such a complicated and compartmentalized machine as the United States government to function and to strive for improvement. But do not take the words of these two authors at face value. Instead, listen to the agencies themselves; they make the case for their existence every day. 

To keep up to date on agency action visit https://www.regulations.gov/.

Luke Colomey attended high school in Cumberland, Rhode Island, and graduated with a Bachelor’s in Political Science from the University of New England in Biddeford, Maine. He is currently pursuing his J.D. at Northeastern University School of Law in Boston, Massachusetts. This spring he is a law clerk at Sherin and Lodgen.

Andrew Turnbull came back to the US from Zambia in 2016 and graduated with a Bachelor’s in political science and economics from Gordon College in Wenham, MA. He is currently a Juris Doctorate candidate for the class of 2025 at Northeastern University School of Law in Boston, MA. This Spring Andrew is working as a Rule 3:03 Certified student prosecutor in the Essex County District Attorney’s Office.

The Fight Over Birthright Citizenship

By Nazo Demirdjian

President Donald J. Trump, who was elected to a second non-consecutive term in 2024 (only the second president to do so), has promised, once again, to end birthright citizenship in the United States, through executive order if necessary. Birthright citizenship grants citizenship to anyone born within the jurisdiction of the United States. It was explicitly added to the Constitution in 1868 via the Fourteenth Amendment in an effort to finally end the debate of citizenship status for newly-freed enslaved persons. Section I of the Fourteenth Amendment provides, “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . .”

Birthright citizenship is not a newly controversial topic. It has been debated before and even reached the Supreme Court in 1898. In United States v. Wong Kim Ark, the Supreme Court held that a child of non-American citizens who is born in the United States, is a citizen if the parents “have a permanent domicil (sic) and residence in the United States.” Justice Gray, writing for the majority, noted that “[t]he Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” Put simply, those born in the United States, without regard to any inalienable characteristic, are citizens of the United States upon their birth. However, Wong Kim Ark provides three exceptions – children of diplomats and ambassadors, “children of members of the Indian tribes,” and children of enemies.

Notwithstanding the existing caselaw, there are three arguments President Trump may raise to accomplish his goal of ending birthright citizenship. First, President Trump may point out that one of the three exceptions found in Wong Kim Ark is that birthright citizenship does not extend to children born “of enemies within and during a hostile occupation of part of our territory.” President Trump has used this argument before by declaring mass undocumented immigration an “invasion of our country.” The President is poised to argue that immigrants’ children born in the U.S. are children “of enemies within and during a hostile occupation . . .” However, it would be an absurd argument to equate the children of undocumented immigrants to legitimate enemies and terrorists. Wong Kim Ark’s “enemies” language refers to instances where a nation has invaded the United States where those invaders gave birth to their children on occupied U.S. territory – similar to the 2022 Russian invasion of Ukraine. Those children would not be citizens. The Court might consider an argument equating children of undocumented immigrants to children of enemies. However, it would uphold Wong Kim Ark and find that birthright citizenship extends to today’s undocumented immigrants because they are not enemies of the United States nor have they invaded parts of the country.

A second argument the President might employ involves the language “and subject to the jurisdiction thereof” in Section I of the Fourteenth Amendment. This phrase would likewise distinguish children of legal immigrants from children of undocumented immigrants since, some argue, the latter are not subject to the jurisdiction of the United States because they are here illegally. However, Supreme Court precedent would again derail such an argument. Plyler v. Doe, expanding on Yick Wo v. Hopkins, held “that ‘all persons within the territory of the United States,’ includ[e] aliens unlawfully present.” If territorial presence does not include jurisdiction, then the authority of jurisdiction would have a definition independent of territory. Yet, jurisdiction is found where an individual resides and/or where an incident occurred – both of which relies on territory. Again, this argument would fall flat.

Finally, President Trump may rely on Wong Kim Ark’s language that children of non-citizens who are “domiciled within the United States” are U.S. citizens. The only sliver of an argument the President has in this regard is to make the distinction between non-citizens immigrants with permanent residence and those without. The President would have to differentiate “domicile” from physical existence and physical presence from continued presence. Even if successful, the President would still not have the ability to end all birthright citizenship, even for children of undocumented immigrants because of the actual text of the Fourteenth Amendment. Fidelity to the text of the Constitution would require the Court to find that the Fourteenth Amendment does not include any carveouts for the children of non-citizens with permanent versus non-permanent residence. No matter which of the three arguments the President relies on, it seems unlikely he would be successful.

The President would have the ability to achieve his goal if he supported the extremely difficult and potentially unpopular path of passing a new constitutional amendment. The new amendment would repeal Section I of the Fourteen Amendment with a new amendment that allows birthright citizenship to only apply to children of documented immigrants and/or those with permanent residence. A new amendment could be even stricter, requiring citizenship via jus sanguinis citizenship, (i.e., citizenship by blood), as is the case in nearly all countries in the Eastern Hemisphere. The difficulty would further lie in three-fourths of the states (38) ratifying it after two-thirds of the Senate and House of Representatives pass the new amendment or two-thirds of states have called a convention. With extremely narrow margins in Congress being the newly-normal political climate and with State legislatures being as politically divided as the country as a whole, passing a new amendment would be nearly impossible.

Regardless of the successes or failures of his arguments on ending birthright citizenship, President Trump will argue for wide latitude in immigration affairs as a whole. This time, his arguments would be bolstered by existing caselaw stemming  from the Chinese Exclusion Act of 1882, which banned Chinese laborers from entering the United States for ten years. The Chinese Exclusion Act reached the Supreme Court in Chae Chan Ping v. United States, where, in 1889, the Court’s majority declared:

to preserve its independence… [t]he power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States . . . the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one . . . If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country . . . to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. 

Accordingly, Chae Chan Ping held that Congress has the right to regulate immigration.

Furthermore, the majority in Chae Chan Ping stated, “[i]t matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us” (emphasis added). President Trump’s “invasion” language might fall under “vast hordes of its people crowding upon us,” granting him power to curtail immigration – though not birthright citizenship. Unfortunately for his plans, the above-referenced section of the majority gives wide latitude to the “legislative department,” not the executive. However, the Republican party has control of the 119th Congress, which means the President’s immigration plan can be successful, though unlikely through executive order. 

While Chae Chen Ping was a result of the racist, and now-defunct, Chinese Exclusion Act of 1882, the case has never been overruled, granting wide access to immigration matters of which President Trump would take advantage. Donald Trump ran on an anti-immigration platform in all three of his presidential campaigns, including a promise in 2016 to build a wall across the Southern border, for which Mexico would pay. The rhetoric grew more intense in 2024 with promises of mass deportation. With a conservative supermajority on the Supreme Court, President Trump might hope the Justices would find that immigration caselaw is ripe for change and give him even wider latitude, instead of keeping the power with the legislative branch. Immigration has always been a hot-button issue. The only difference is who those immigrants have been. President Trump’s current plans are similar to the Chinese Exclusion Act of old, though they target Hispanic and Latin American immigrants.

Regardless of the battles ahead, President Trump should remember the warning in Wong Kim Ark: “[w]hatever considerations . . . might influence the . . . executive branch of the Government to decline to admit persons of [another] race to the status of citizens of the United States, there are none that can constrain . . . the peremptory and explicit language of the Fourteenth Amendment. . .” Ending birthright citizenship and huge immigration overhauls through executive orders are promises the 47th President would not be able to keep.

Nazo Demirdjian is a family law attorney based in Las Vegas, Nevada. He earned his Juris Doctorate from UNLV's William S. Boyd School of Law, his master's degree from the University of Chicago, and his bachelor's degree from the University of California, Berkeley. 

The Status of Citizenship

By Yakov Malkiel

Immigration laws control transitions between “alienhood” and citizenship.[1]  These two legal categories are statuses:  that is, they assign rights and obligations to people based on their unchosen characteristics, in this case their birthplaces and their parents’ identities.  The arc of legal history has bent away from relying on statuses and toward treating all people as equals.  By continuing to revolve around statuses, our immigration laws thus reflect attitudes that we have mostly rejected.

I.  From “Aliens” to Citizens

Like many before it, this election cycle has placed immigration at center stage.  Some presidential candidates have described the rate at which noncitizens are entering the United States as a crisis and an important failing of the current administration.  Longstanding pressure on the President has culminated in his recent Proclamation on Securing the Border.  At times like this, it is important to revisit the underpinnings of our jurisprudential attitudes toward immigration and the laws that control it.

The immigration laws determine whether and when “aliens” may become “citizens.”  Our legal system draws a sharp distinction between these two categories of people.  The distinction determines an array of legal rights and obligations.  Typically, only citizens are entitled to vote and to hold office.  Citizens receive special constitutional protections and governmental benefits.  And noncitizens may be removed from the country’s territory.

Two key factors determine a person’s access to citizenship.  Both are “beyond the[] control” of anyone:  they are (1) the person’s place of birth and (2) the identities of the person’s parents.  In essence, you may have a right to U.S. citizenship if you were born on U.S. soil or if your parents are U.S. citizens.  The pathways to citizenship of anyone who was born abroad to non-citizen parents are narrow and uncertain.

The traditional name for a legal category that assigns rights and obligations to people based on unchosen characteristics is a “status.”  English scholar Edward Jenks classically defined statuses as groups of people that the law treats differently because of “conspicuous differences . . . that by no decision of their own can they get rid of.”  That definition remains in use.  It aptly describes both citizenship and “alienhood” under today’s laws.

II.  From Status to Equality

Few theories about the history of law and society have been as influential as Sir Henry Sumner Maine’s aphorism that “the movement of the progressive societies has hitherto been a movement from Status to Contract.”  Scholars say that Maine’s usage of the term “status” mirrored Jenks’s:  Maine also meant a legal category that assigns rights and obligations to people based on their unchosen characteristics.

Maine viewed his theory as both descriptive and prescriptive.  He thought that, as a matter of historical fact, the law has gradually been assigning rights and obligations less on the basis of unchosen statuses, and more on the basis of voluntary arrangements.  Maine also approved of this development, as indicated by his use of the adjective “progressive.”

For present purposes, it is important to disaggregate the “from status” and “to contract” halves of Maine’s theory.  The “to contract” half has drawn overwhelming critiques.  The critics have observed that modern legal systems have limited the extent to which contracts are permitted to dictate legal consequences.  Statutes and regulations control rights and obligations that people cannot always modify.  The same critics have emphasized the virtues of restrictions on contractual freedom:  such restrictions can deliver benefits to the public and protect the people who most need protecting (such as underage work seekers).

By comparison, quarrels with the “from status” half of Maine’s theory have been essentially semantic.  Almost as soon as Maine articulated his aphorism, scholars began to point out that the law continues to recognize new types of statuses, such as “employee,” “insured,” “tenant,” and “shipper.”  Of course, these are not the types of categories that arise out of people’s unchosen attributes.  They depend on voluntary acts, such as the acceptance of a job offer.  To the extent that such legal categories are now commonly called “statuses,” the logical critique of Maine is that he (and Jenks) used the term “status” in an outdatedly narrow sense.

Setting semantics aside, the “from status” half of Maine’s theory continues to offer vibrant lessons.  Like Maine’s aphorism overall, these lessons are both prescriptive and descriptive.

The theory that the law is gradually moving away from assigning rights and obligations based on unchosen characteristics reflects an appealing prescriptive principle:  the belief that all people are born equal.  That belief is the essential opposite of the traditional assumption that rights and responsibilities are appropriately assigned on the basis of unchosen characteristics.  Jenks recognized this point, writing that the ancient proliferation of statuses has waned “as a result of the modern tendency towards legal equality.”  The prescriptive teaching of Maine’s aphorism is that the law should steadily eliminate statuses and replace them with equal protections.

The corresponding descriptive proposition is that, from a bird’s eye view, the arc of legal history has bent away from status and toward equality.  This observation should not be allowed to obscure the unacceptable inequalities of both our history and our present.  But it is supported by certain datapoints.  Writing in 1861, Maine himself was especially interested in the law’s abandonment of the feudal statuses of “noble,” “vassal,” and “serf.”  Two years later, the Emancipation Proclamation ended American slavery.  In 1920, the Nineteenth Amendment equalized the voting rights of men and women.  During the fifties and sixties, some legal consequences of African-American heredity were outlawed by Brown and Loving.  The Civil Rights Acts of the sixties tackled additional unequal consequences of gender and race.  Recent decisions such as Windsor, Obergefell, and Bostock have made analogous efforts to equalize the legal implications of all sexual orientations.

Each one of these developments has reflected a reduced role for status in the law and a corresponding expansion of legal equality.  Each one has been a step toward disentangling people’s rights and obligations from their unchosen attributes.  Each one has enlarged the universe of people whose unchosen attributes are legally irrelevant and who are instead treated as equals.

III.  From Outlaws to Siblings

Citizenship and “alienhood” have survived the law’s gradual rejection of status as an acceptable regulatory device.  The Supreme Court made this clear in Mathews v. Diaz, stating matter-of-factly that “a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and [‘]aliens[’] may justify attributes and benefits for one class not accorded to the other.”

The persistence of these two statuses is a puzzle.  Why exactly does the law continue to assign divergent rights and obligations to people based on their places of birth and their parents’ identities?  We rarely see this question posed, perhaps because citizenship and “alienhood” are categories so time-honored that they seem natural.  But it is puzzling that these categories have remained vital even as we have jettisoned the law’s traditional willingness to derive rights and obligations from nobility, vassalhood, serfdom, slavery, race, gender, and sexual orientation.

Logically speaking, there may be two fundamental approaches toward explaining the continued vitality of citizenship and “alienhood.”  One is that our society truly views noncitizens as unequal people.  Maybe we have come only so far from those Founders who believed that all people are born equal, as long as they are born male and white.  The analogous view today may be that all people are born equal, as long as they are born on U.S. soil or to American parents.  Some political and philosophical thought seems to be satisfied implicitly with this type of attitude.

A second explanation is less ideological and more practical or apologetic.  Perhaps we believe that noncitizens deserve equal treatment, but that we aren’t equipped to provide it.  Maybe there are more rights-deserving people in the world than the United States is able to accommodate.  It still may be puzzling that among all the rights-deserving people, we choose to favor the citizens; but perhaps that reality is too deeply ingrained to be upended just yet.

The existence of these two explanations does not end the analysis.  Each of them yields very different policy implications.  In a nutshell, if only practical constraints curb the degree to which we grant equal treatment to noncitizens, then we should be maximizing—to the extent that reality tolerates—the number of noncitizens we naturalize, as well as the scope of the rights that we make available to noncitizens.  Such efforts are unnecessary if we are content to view noncitizens as unequal.

Our fundamental attitude toward noncitizens may specially impact our attitudes toward those who attempt to immigrate in violation of the applicable laws.  In his Letter from Birmingham City Jail, Dr. Martin Luther King, Jr. described the experience of the holders of an unequal status upon being told to obey the laws that enforce that status.  Dr. King’s topic was segregation based on race, not exclusion based on parentage and place of birth.  But the parallels are distinct:

All segregation statutes are unjust because segregation distorts the soul and damages the personality.  It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.  Segregation . . . ends up relegating persons to the status of things.

An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself.  This is difference made legal. . . .  A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law.

People bearing the more-powerful status of citizenship are those who make the laws that deny various legal rights to people bearing the less-powerful status of “alienhood.”  When we call on noncitizens to obey those laws, we ought to ask ourselves:  Are we treating them as equals?  Would we find such laws acceptable as applied to our siblings?  Dr. King described the resulting practical dilemma as follows:  “Will we be extremists for hate or for love?  Will we be extremists for the preservation of injustice or for the extension of justice?”

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[1] The Law Review considers the terms 'aliens' and 'alienhood' to be degrading and harmful. While we discourage their use, they are employed here to underscore the negative and exclusionary language historically and currently used by the legal system toward noncitizens.

The author is a graduate of Tel-Aviv University (LL.B.) and Yale Law School (LL.M.). Among other responsibilities, he is an adjunct professor at New England Law Boston.  This essay is dedicated to the memory of Analisa R. Smith-Perez, an extremist for love and justice who is badly missed.

A New One-Two Punch in Merger Law? JetBlue’s “Extra-Legal” Negotiation Strategy

By Luke Colomey

The History & Contemporary Landscape of Antitrust Law 

Congress originally designed antitrust law to protect consumers and businesses from the dangers of anti-competitive conduct. At the turn of the century, the Sherman Act (1890) and the Clayton Act (1914) established the framework under which this system functions. Since then, the tools for protecting consumers and businesses have changed little. What has changed is how and when governments and private individuals deploy these tools.

Under § 2 of the Sherman Act it is unlawful for any person to “monopolize,” “attempt to monopolize,” or “conspire to monopolize” any market. An early and important example of a successful challenge to a monopoly under this section was the Standard Oil case in 1911, ordering the nationwide oil juggernaut to be split into separate companies. Antitrust enforcement remained relatively robust in subsequent decades, but the 1980s landmark AT&T litigation represented the start of a more “hands off” approach as the world entered the digital age. The recent Department of Justice (“DOJ”) challenge to Google and the private challenges to both Google and Apple, among other cases, seem to signal a return to a more robust stance against monopolies.

There has been a similar trend in challenging anti-competitive mergers under § 7 of the Clayton Act, which prohibits any merger or acquisition whose effect “may be substantially to lessen competition, or to tend to create a monopoly.” In 2023, the Biden Administration noted that “markets have become more concentrated” since the release of the 2010 Horizontal Merger Guidelines (created by the DOJ and the Federal Trade Commission), coinciding with “a number of concerning trends across the broader macroeconomy.” In response to these concerns, the two responsible agencies updated the guidelines, seeming to signal a shift in the federal government’s anti-competition policy. The new guidelines have lowered the legal standard for when mergers can and should be challenged, creating a much stronger enforcement policy than the previous incarnation.

The DOJ wasted little time implementing its new marching orders. In 2023, the DOJ challenged JetBlue Airways Corporation’s (“JetBlue”) “Northeast Alliance,” launched in 2021, with American Airlines (“American”), which combined the assets of the two companies in the Northeastern states. A Massachusetts District Court ruled that the alliance was anti-competitive under § 1 of the Sherman Act, which outlaws “every contract, combination, or conspiracy in restraint of trade,” because the collusion between the airlines in the form of “sharing profits or revenues and coordinating schedules and output,” posed too much danger to be permitted. The DOJ followed that victory with another, succeeding again in challenging JetBlue’s merger with Spirit Airlines (“Spirit”) in 2024, where the court held that the merger was anti-competitive under § 7 of the Clayton Act. This article aims to offer insight into the “extra-legal” negotiation strategy defendant JetBlue employed during the second case.  

The JetBlue-Spirit Merger Trial 

At trial, the DOJ and JetBlue both attempted to establish the foundational elements of a horizontal merger case, including: (1) defining a relevant product and geographic market (the DOJ advocated for regional markets, while JetBlue advocated for a national market); (2) the concentration of said market; (3) the potential pro-competitive effects; and (4) the potential harm to consumers. An important note is that a central argument from the DOJ was that Spirit is an “Ultra Low Cost Carrier” (ULCC) and removing its low prices from the market would not be timely and effectively replaced, thus harming consumers who rely on that service.

A particularly interesting (albeit small) argument from JetBlue involved its use of the Massachusetts District Court opinion that blocked its attempted alliance with American. In that ruling, the Court found that JetBlue qualifies as a so-called “maverick” firm–a disruptor in the relevant market. In holding that the alliance was anti-competitive, presiding Judge Sorokin noted that “by aligning its interests with a powerful [Global Network Carrier], JetBlue has sacrificed a degree of its independence and weakened its status as an important ‘maverick’ competitor in the industry.” During the second trial, defendant JetBlue pointed to this finding as a reason why the merger with Spirit should be allowed. JetBlue argued that if it is not allowed to partner with one of the leading four airlines in the country (American) because the market cannot afford to lose its “maverick” firm, then JetBlue should be allowed to merge with an airline smaller than itself (Spirit) so that it can more effectively disrupt the market, compete against the “Big Four” airlines, and benefit consumers. And indeed, Judge Young, presiding over the merger with Spirit, also recognized that JetBlue is a “maverick” in the market. 

JetBlue continued this strategy by making additional arguments for not only why the merger with Spirit was generally acceptable (a standard argument in a merger case), but also, at least implicitly, why the proposed merger was more acceptable than the previous attempted alliance with American (an “extra-legal” argument that had no bearing on the relevant law, but which JetBlue thought might be persuasive). Unlike American, which projects to be a stable company well into the future, JetBlue argued that Spirit is a “failing firm” that will leave the market in short order should the proposed merger not occur. Unlike the deal with American, where JetBlue’s outlook was all gains and no losses, JetBlue offered to include divestitures in the Spirit deal, which would prop up other ULCCs such as Frontier Airlines and Allegiant Air who could replace Spirit in the long term. Defendant JetBlue did everything in its power to frame the merger with Spirit as significantly more reasonable than the failed “Northeast Alliance.”

While each antitrust horizontal merger case is insular, the surrounding facts are still practically instructive. JetBlue wanted to take advantage of this reality. Putting it simply, once the “Northeast Alliance” was struck down, JetBlue tried to make the best out of its situation and attempted a classic negotiation strategy: using a first, outrageous offer (the alliance with American) to make a second proposal seem much more reasonable in comparison (the merger with Spirit). The problem is that the goal of antitrust law is not to negotiate with corporations to find the least harmful proposal they will accept; it is to prevent conduct that unreasonably harms competition – full stop. Therefore, it does not matter that the Spirit merger is better than the alliance with American; it only matters whether the Spirit merger is anti-competitive. While it is unfortunate for JetBlue that its previous proposal failed, this fact holds no weight in the subsequent case, and JetBlue should not have expected the Court to consider it.

The JetBlue-Spirit Merger Decision

Just over a month after the trial concluded, Judge Young followed antitrust precedent to rule that the merger was anti-competitive, violated § 7 of the Clayton Act, and had to be enjoined. Putting aside JetBlue’s “maverick” firm status, Judge Young instead focused on the disruptive nature of Spirit that would be lost should the merger occur. He also found the argument that Spirit was a “failing” or “flailing” firm “lack[ed] merit” and that the offered divestitures were not enough to deflect from the fact that “those who must rely on Spirit” would be detrimentally harmed.

However, aided by the DOJ agreeing that “another deal is another case,” Judge Young ultimately thought that a general injunction “asks too much.” Instead, he held that the injunction “narrowly applies only to the proposed merger of JetBlue and Spirit as it currently stands.” This aspect of the ruling was noteworthy, as any future proposal of a JetBlue-Spirit merger would undoubtedly involve Spirit leaving the market; the very thing that Judge Young found unacceptable. With that being said, the Court could have been holding back to account for any significant change in the market that would alter the analysis. In the end, Judge Young saw through JetBlue’s “extra-legal” negotiation strategy and blocked the deal, albeit while still leaving the door open for a (probably greatly) modified proposal in the future. 

On March 4, 2024, JetBlue and Spirit announced that they had agreed to terminate their proposed merger due to difficulty in “receiving necessary legal and regulatory approvals.”

Conclusion 

Judge Young made sure to note that “the Court has made its best attempt” (emphasis added) to apply the law, perhaps signifying that this was a particularly difficult case. And rightfully so, as antitrust is one of the less exact areas of the law and dueling experts are required to explain complex economic concepts unique to the field. Further, antitrust cases are rarely litigated and the ones that courts do hear require judges to undertake the impossible task of “predict[ing] the future.” For these reasons, it is difficult for any judge to jump into the world of antitrust law and effectively hear a case under its purview. With all of that said, it certainly does not help if defendants employ the types of “extra-legal” negotiation strategies that JetBlue used in this case. If antitrust law is to continue its reawakening and once again fulfill its mission of protecting consumers and businesses alike from anti-competitive behavior, judges must follow in Judge Young’s footsteps, be wary of litigants repeating this strategy in the future and hold closely to the relevant law to prevent any unreasonable harm to competition.

About the Author

Luke Colomey attended high school in Cumberland, Rhode Island, and graduated with a Bachelor’s in Political Science from the University of New England in Biddeford, Maine. He is currently pursuing his J.D. at Northeastern University School of Law in Boston, Massachusetts. This summer he is a law clerk at Brody, Hardoon, Perkins & Kesten in Boston.

Acknowledgments

Thank you to Professor Gary Cooper for his instruction during his Antitrust Law class which laid the foundation for this article. Thank you to J.D. candidates Andrew Turnbull and Jack Sheehy for their edits and ideas. Thank you to the AUSAs in the ACE and CRU units of the U.S. Attorney’s Office in Boston, Massachusetts, for their facilitation of the opportunity to observe the United States v. JetBlue trial.