Comment

Annually, agents collect the forensic digital data of over 40,000 international travelers. This Comment addresses the splintering doctrine between the First, Fourth, Ninth, and Eleventh Circuits regarding the Fourth Amendment limitations to performing forensic electronic searches at the border. Use restrictions consider each use of data—extracting, retaining, querying, and sharing—as a separate Fourth Amendment search, subject to a separate reasonableness analysis. This Comment will argue that applying such restrictions in the border context prevents the government from using data collected under a narrow exception for broader purposes that would otherwise require a warrant.

This Comment argues that foreign investment in domestic sporting institutions presents a novel, legitimate threat justifying executive attention. This Comment posits that sports are not simply a form of entertainment and instead cultivate a uniquely salient form of identity for the individuals and communities that comprise their fandoms. And when the sports investor is a foreign government or their proxy, such ownership may present a particularly potent threat to national security. Incorporating these theoretical considerations, this Comment seeks to present an actionable analytical framework for CFIUS, reviewing courts, and policy makers to consider and evaluate the potential threats to national security posed by “sportswashing”: foreign direct investment in domestic sporting institutions, through which foreign state or near-state actors leverage the popularity of sports and communities of sports fans to cultivate political and economic capital.

In 2023, the Supreme Court decided Arizona v. Navajo Nation, finding that the United States government does not have an affirmative duty to ensure the Navajo Nation’s water security. The decision offers the Navajo two paths forward for relief: the tribe can either litigate specific water rights claims in the Colorado River Basin or lobby the President and Congress to amend an 1868 treaty, the language of which served as the basis for the holding in Navajo Nation. This Comment offers a path forward for change via the executive branch, specifically through the President’s emergency powers. Ultimately, this Comment identifies the Stafford Act as the best prospect for the Navajo to advance their water rights, given that there is a specific process in place for tribal leaders to request an emergency declaration from the President that would release federal funds.

Sovereign immunity protects the government from liability arising in suits brought against it by citizens. The Federal Tort Claims Act (FTCA) broadly waives sovereign immunity for tort claims against the United States. The discretionary function exception maintains immunity for tortious acts committed by employees acting within the valid bounds of their discretion. There is a circuit split about whether the discretionary function exception immunizes tortious conduct that is also unconstitutional.
This Comment argues that the discretionary function exception should only immunize unconstitutional tortious conduct when the actions do not violate clearly established constitutional rights of which a reasonable officer would have known.

A noncitizen detained under 8 U.S.C. § 1226(a) may be detained indefinitely until her removal order is finalized. Detainees have challenged prolonged detention following a detainee’s bond hearing on Fourteenth Amendment Due Process grounds, leading to a circuit split. Courts generally apply the Mathews test when hearing these challenges, which requires balancing the individual’s liberty at stake against the government’s interest in limiting that liberty. This Comment argues that a more complete evaluation of national security implications under the clear and convincing evidence standard will more accurately capture the full scope of proffered government interests and reduce the extreme deference given to the executive branch in its national security determinations.

Under the Immigration and Nationality Act (INA), individuals who have experienced past persecution or fear future persecution because of their religious beliefs can apply for asylum in the United States. Although individuals are afforded these protections under the statutory provisions of the INA, there is a fundamental problem in the way courts have treated religious asylum claims. Rather than holistically considering religion, courts have instead focused on religion’s fragmentary aspects. This Comment argues that courts must first adopt an understanding of religion in the context of religious asylum claims in order to determine what it means to be persecuted on account of religion under the INA. To avoid inconsistent reasoning among immigration and federal courts as it relates to the one central reason standard, this Comment proposes a four-part definitional methodology of religion and argues that a but-for causation standard as used in Title VII claims is sufficient in adjudicating religious asylum claims.

In 2024, President Biden signed the Protecting Americans from Foreign Adversary Controlled Applications Act (PAFACA), which required TikTok’s parent company ByteDance to sell TikTok to a company in a “non-adversarial” country or be banned from the United States. TikTok challenged the regulation, in part, as a violation of the Fifth Amendment’s Takings Clause, which would permit the government to ban TikTok so long as it compensates ByteDance. Because PAFACA applies to applications beyond TikTok, it raises a broader question: does the Takings Clause require government compensation for bans on foreign web services? This Comment argues the answer is no.

The 2023 Supreme Court case Twitter v. Taamneh found that defendant social media companies were not liable for aiding and abetting a terrorist attack overseas. The Court alluded to the existence of an alternative set of facts that might alter their analysis or produce a different outcome. This Comment explores those “other contexts” and seeks to identify what factors could produce a successful Justice Against Sponsors of Terrorism Act (JASTA) aiding and abetting claim against a social media company for an act of terrorism overseas. Ultimately, this Comment concludes that it would take an extraordinary set of facts to find social media companies secondarily liable for an act of terrorism. This Comment then suggests other avenues to encourage social media companies to heighten their detection of Foreign Terrorist Organization (FTO) activity and prevent future attacks.