America’s current domestic affairs are in the hands of one man, Donald J. Trump. The 45th President of the United States quickly instituted an oppressive governance system utilizing executive orders, intimidation, and division.[1] President Trump continues to violate the Constitution and Federal Law in his second administration.[2] One of President Trump’s recent decisions, federalizing the National Guard (“Guard”) and deploying agents into Democratic Party-run cities, motivated a federal court challenge in California.[3] District Court Judge Charles R. Breyer of the Northern District of California recently issued several decisions since California Governor Gavin Newsom sued President Trump in response to the presidential federalization of the California Guard.[4] Judge Breyer’s latest opinion addressed jurisdictional arguments and stated that President Trump exceeded his authority.[5] Such broad sweeps of executive power have not been exercised analogously in years.[6] As more courts raise their gavels to review executive decisions, America’s ideological divides grow.
Historical Context
This is not the first time a president has directed the Guard.[7] Importantly, the Guard is a “reserve military force,” composed of majority part-time soldiers who meet for training throughout the year while holding civilian jobs.[8] Each state and territory have a Guard.[9] In general, a current president or state governor may deploy the Guard in response to local emergencies, civil unrest, or public health crises.[10] Conventionally, a president must receive governor authorization before deployment.[11] The last time a president skipped governor authorization for Guard deployment was 1965.[12] President Johnson “invoked his legal authority to deploy the national guard” without the consent of Governor Wallace of Alabama, a prominent segregationist of the time, who opposed the Civil Rights Movement.[13] President Bush faced an opportunity to exceed executive authority when Governor Blanco of Louisiana refused to deploy the Guard following Hurricane Katrina in 2006, but Bush weighed against federalization.[14]
Trump’s justification for executive overreach does not resemble prior emergency circumstances warranting the Guard. On August 11, 2025, President Trump manufactured a “Crime Emergency” in Washington DC by executive order.[15] The order states: “the city government’s failure to maintain public order and safety has… dire[ly] impact[ed]… the Federal government’s ability to operate efficiently.”[16] But crime is not a sufficient statutory justification for an emergency federalization.[17]
I. The President’s Justification
Notably, Trump does not justify deployment of the Guard under the Insurrection Act or the Posse Comitatus Act.[18] Rather, a century old law permitting Guard federalization by a president, “if there is a rebellion or danger of rebellion against the . . .US or, if the president is unable with the regular forces to execute the laws . . . .”[19] Trump alleges Guard usurpation is crucial to public safety, “aiding [in] a necessary crackdown on crime, and bolstering immigration enforcement.”[20]
Statutorily, 10 U.S.C.S. § 12406 does not list “public safety purposes” as a legitimate reason for Guard deployment.[21] Governor Newsom accurately characterized the militarization when he said that President Trump “commandeered 2,000 of our state’s National Guard members to deploy on our streets. Illegally, and for no reason.”[22] President Trump’s critics agree the White House “is trampling on longtime norms against the domestic use of military” and at risk of transforming the Guard “from an apolitical force” to “another arm of the Trump administration.”[23]
II. A Snapshot of the Newsom v. Trump Decisions
Litigation began when Newsom sought a temporary restraining order (TRO) preventing defendants, President Trump, from federalizing the California Guard.[24] The principal issue was Trump’s procedural violation of 10 U.S.C.S. § 12406, which requires “[o]rders issued through the governor[s]” when federalizing the Guard.[25] Recognizing a clear statutory procedural violation, Judge Breyer granted the TRO and pointed out constitutional violations.[26] Unsurprisingly, defendants appealed the TRO to the 9th circuit.[27] Then, the Court stayed the TRO and affirmed President Trump’s arguably unconstitutional behavior.[28]
The 9th Circuit determined “the President lawfully exercised his statutory authority.”[29] The Court found that President Trump received governor authorization by “transmittal of the order to the Adjutant General of the California National Guard—who is authorized . . .to ‘issue all orders in the name of the Governor.’”[30] The Court also undermined Judge Breyer’s redress by adding that even if this transmission was insufficient to satisfy the procedural requirement, the district court likely exceeded its scope of relief.[31]
The 9th Circuit’s reversal of Judge Breyer’s injunctive relief illustrates the ideological divide exacerbated by President Trump’s executive actions. Circuit courts and SCOTUS support the executive.[32] Governor Newsom and Judge Breyer do not stand alone against President Trump’s federalization of the Guard.[33] As more challenges to executive authority arise throughout Trump’s second administration, district judges must take a stand. American law faces a critical point.
III. The Future of Breyer’s Ruling
Although federal district court judges challenge President Trump’s decisions, higher courts located close to the President continue to support his decisions.[34] SCOTUS directly supports unconstitutional actions as the highest court, effectively sitting in Trump’s back pocket.[35] Without strong checks and balances to restrain branches of government from exceeding their authority, America risks integrated corruption and loss of state sovereignty. Given the rise of “shadow docket rulings” in the Trump administration, SCOTUS is likely to review Newsom v. Trump.[36]
Conclusion
In conclusion, courts and citizens should be concerned about clear abuses of executive authority. Trump’s federalization of the National Guard, without the consent of state governors, violated the procedural requirements of 10 U.S.C.S. § 12406.[37] The President’s justification for deployment of America’s reserve military force in democratic cities amounts to a manufactured crime emergency based on ideological differences. This is not a system of governance that states should support. Governor Newsom summarized the issue, “[t]his is beyond incompetence — this is [Trump] intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism. We will not let this stand.”[38]
Moving forward, district court judges should prepare for the oncoming ideological boxing match. It is permissible and encouraged for courts to review executive actions, as the Founders intended.[39] Hopefully, America can return to healthy political discourse and courts will uphold the rule of law despite political pressures.
[18] Elizabeth Goitein, Unpacking Trump’s Order Authorizing Domestic Deployment of the Military, Brennan Ctr. for Just. (June 10, 2025) https://www.brennancenter.org/our-work/analysis-opinion/unpacking-trumps-order-authorizing-domestic-deployment-military (stating Trump likely chose this approach because of the familiarity of abuse within the Insurrection Act).
[26] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025) (“[Trump’s] actions were illegal—… violating the Tenth Amendment to the United States Constitution.”).
[34]See generally Trump v. CASA, 145 S. Ct. 2540 (2025) (prohibiting district court’s grant of a universal injunction addressing birthright citizenship); Trump v. United States, 603 U.S. 593 (2024) (recognizing “some” immunity for the president from criminal prosecution for official acts); Trump v. Wilcox, 145 S. Ct. 1415 (2025) (staying injunction granted by district court in response to firing NLRB workers); Trump v. Boyle, No. 25A11, 2025 U.S. LEXIS 2695 (U.S. July 23, 2025) (affirming Wilcox decision as precedent); Amy Howe, Supreme Court agrees to decide the fate of Trump’s tariffs, SCOTUS Blog (Sept. 9, 2025) https://www.scotusblog.com/2025/09/supreme-court-agrees-to-decide-the-fate-of-trumps-tariffs/.
Dee Farmer, a pro se litigant, is recognized as the first transgender person heard by the Supreme Court.[1] Dee, who never graduated high school, wrote her original complaint by hand from a prison cell and filed it with the U.S. District Court for the Western District of Wisconsin .[2] Dee spent most of her time in the sparsely populated prison library to avoid taunting, harassment, and violence from other prisoners. There, she taught herself the law to advocate for her rights. When she was beaten and raped by another prisoner two weeks after being transferred to a high-security prison, she filed a civil lawsuit that took her all the way to the Supreme Court in 1994.
As discussed below, Dee’s experience demonstrates that the landscape of the carceral system and the legal system remains largely unchanged. This injustice leaves victims of sexual violence in prison the same singular avenue for justice three decades later—proving that their case meets the stringent deliberate indifference standard.
Dee’s case forced the U.S. to acknowledge its willful blindness of prison rape, yet the “brutality” that is the “equivalent of torture”[3] continues to be a reality of confinement. The Prison Rape Elimination Act (PREA) largely inspired by Farmer—as passed unanimously by Congress in 2003 and signed into law by President George W. Bush in 2003.[4] The PREA created the National Prison Rape Elimination Commission, which was tasked with “identifying ways to curb the incidence of sexual assaults in prison.”[5] The Commission ultimately submitted standards to the DOJ for review, and the final standards were published in the Federal Register in 2012.[6]
So far as incentivizing prison reform goes, it lacks teeth.[7] Though the PREA established new standards for compliance, improved data collection, and increased general awareness, noncompliance is penalized by a mere loss of 5% of grant funds.[8]Most notably, the PREA doesn’t provide a private right of action that victims could use to sue.[9] Absent sufficient government intervention, prisoners continue to face sexual violence as though it were a condition of their imprisonment.[10] The most recent statistics available from the Bureau of Justice Statistics reported 36,264 allegations of sexual victimization in 2020.[11]
Farmerv. Brennan is now the binding precedent for “failure to protect” claims under the Eighth Amendment.[12] It is one of the most cited cases in U.S. history.[13] The Eighth Amendment prohibits “cruel and unusual punishment.”[14] In Farmer, the Court created a two-part test: that a plaintiff can establish a “failure to protect” claim in violation of the Eighth Amendment by showing that (1) they are “incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials are deliberately indifferent “to inmate health or safety.”[15]
This ruling may seem like a victory for prisoners’ rights, but plaintiffs routinely fail to meet the high standard of “deliberate indifference” set by the court in Farmer. This was Dee’s fate. She lost her case on remand.[16] The first prong of the Farmer test does not typically prove to be a legal obstacle for victims of sexual violence, but the second prong is a different story. What exactly is deliberate indifference? The term “deliberate indifference” originated from a 1976 case, Estelle v. Gamble,[17] in which the Supreme Court defined this standard to mean “a state of mind more blameworthy than negligence.”[18]
Dee argued for a lesser objective standard similar to civil law’s negligence standard. The Court expressly rejected Dee’s argument and instead adopted the subjective standard of criminal recklessness to prove deliberate indifference.[19] Under this standard, a prison official will only be held liable if they subjectively knew of the risk of harm and, despite their knowledge of the risk, failed to take reasonable action to prevent it. Put another way, the victim must show that the prison official knew there was a risk of harm and failed to respond reasonably. Under this standard, the claim lives or dies by the proof of what was in the officials’ mind–not the abuse itself, regardless of how extreme.[20] There is no specific data on these cases, but a 2020 analysis of 1,500 failure to protect cases found that less than 1% were successful.[21] Plaintiffs often fail to surpass opposing counsel’s motion for summary judgment.[22]
For a prisoner, the legal obstacles they must face to seek justice are nearly insurmountable. Even if the standard were lessened to the civil negligence standard, prisoners still face the Prison Litigation Reform Act, which created a slew of significant roadblocks to bringing suit.[23] The greatest roadblock, however, is fear. Victims often face psychological and social difficulties in the process and decision to confront their abuser. An incarcerated victim faces these same fears from behind bars. Prisons are plagued with hyper-masculinity, vastly unequal power dynamics, and stigmatized beliefs of sexual orientation and gender identity.[24] The mental and physical risk to safety posed by bringing lawsuit is an extreme deterrent. The standard should be reformed, and a higher threat of liability could incentivize change in prisons. But not in the service of prison reform. That is the government’s responsibility. It should be reformed for the same reasons that any standard should be reformed—in the service of equitable justice.
“[M]any inmates,” Justice Blackburn wrote in Farmer, “discover that their punishment degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.”[25] The United States retains toothless federal regulations, narrow avenues of legal relief, and a society that more commonly recognizes prison rape as a punchline rather than a problem. The government frequently fails to meet its responsibility to protect incarcerated citizens.[26] Instead, the United States government chooses to primarily place the burden of rectifying the country’s morality squarely on the backs of incarcerated victims of sexual violence. The government’s deliberate indifference—if put to the test—should not survive.
[7] Elizabeth A. Reid, The Prison Rape Elimination Act (PREA) and the Importance of Litigation in Its Enforcement: Holding Guards Who Rape Accountable, 122 Yale L. J. 2082 (2013).
[8] Prison Rape Elimination Act (PREA), BJA, https://bja.ojp.gov/program/prea/overview (last visited Sept. 17, 2025); Subsequent amendments the PREA in 2016 and 2018 have followed suit. Justice For All Reauthorization Act of 2016, Pub. L. No. 114–324, 130 Stat. 1948 (2016); United States Parole Commission Extension Act of 2018, Pub. L. No. 115–274, 132 Stat. 4160 (2018).
[11] Emily D. Buehler & Shelby Kottke-Weaver, Bureau of Just. Stat., Sexual Victimization Reported by Adult Correctional Authorities, 2019–2020 – Statistical Tables 1 (2024).
[12] Dee Deidre Farmer & D. Dangaran, Farmer at 31: Historicizing Trans Rights in Prison through Intergenerational Doctrine, 48 N.Y.U. Rev. L. & Soc. Change 321, 326 (2025).
[22]See Ciara N. Cannoy et al., Legal Digest, Standard for Deliberate Indifference to Inmate Safety and Medical Needs, 52 J. Am. Acad. Psych. & L. 128, 1–3 (2024).
[24]See Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, 48 Am. Crim. L. Rev. 121, 127–28, 134–35, 139 (2011); See also Alysia Santo et al., In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired, Marshall Project (May 19, 2023), https://www.themarshallproject.org/2023/05/19/new-york-prison-corrections-officer-abuse-prisoners.
The United States criminal justice system has been rightly criticized for its problems of mass incarceration, systemic discrimination, and inefficiency.[1] Many advocates for change suggest that the current system is unredeemable and that such alternatives as restorative justice approaches must happen outside of the system.[2] These arguments have merit, and certainly those who have worked in restorative justice for a long time can demonstrate empirically how incarceration fails and how restorative justice can succeed.[3] There are, however, programs called problem-solving courts or treatment courts. These courts work within traditional court systems but focus on recovery and rehabilitation rather than punishment.[4] Without abandoning work toward more radical reforms of the criminal justice system, restorative justice advocates should recognize and celebrate the current good work of treatment courts and the validity of non-punitive work done within the current justice system.
Treatment courts are a form of deferral that combines court-ordered monitoring with community support to address underlying issues to criminal actions, particularly substance abuse and mental health conditions.[5] Perhaps the most widely known treatment courts are adult drug courts, aimed at adults charged with criminal offenses who also have an underlying substance abuse problem.[6] There are also treatment courts specifically for those with multiple driving while intoxicated (DWI) convictions, families facing loss of custody due to underlying substance or other abuse, juveniles with substance or mental health concerns, and veterans who have become involved with the justice system.[7] This blog post will focus primarily on adult drug treatment courts, because these are the predominant version of treatment courts in the focus state, Maryland.[8]
Adult drug treatment courts (DTCs) are aimed at individuals who the court has determined are “high risk, high need[],” or who have a high risk of re-offending or failing to complete probation combined with a substance abuse problem that requires intensive treatment to overcome.[9] Advocates of DTCs argue that these specialized courts “combine public health and public safety” to both lower criminal activity and help those suffering the results of substance abuse.[10] Other benefits cited include lowering the number of rearrests for participants, reducing the amount of incarceration time, and saving the state money.[11] Critics of DTCs raise concerns such as lack of meaningful oversight and the danger that participants must waive fundamental due process rights.[12]
In Maryland, DTCs are part of a wider network of problem-solving courts (PSCs), all of which are subject to Maryland Rule 16-207, within the Maryland Rules for Court Administration.[13] The Rule defines a PSC as “a specialized court docket or program that addresses matters under a court’s jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties,” and it governs the process and requirements for initiating new problem-solving courts.[14] Some of these requirements are designed to protect the rights of participants. For example, after the chance to receive advice from an attorney, potential participants must enter into a written agreement about the requirements of the PSC and any rights they may be waiving.[15] The PSC must also examine potential participants on the record, so the Rule includes two different means to ensure participants fully understand the terms of entering the PSC program.[16] Before imposing any sanctions that involve a loss of liberty or termination from the program, the PSC must provide the participant with “notice, an opportunity to be heard, and the right to be represented by an attorney before the court makes its decision.”[17] Once a PSC is established, the Rule includes a requirement for regular monitoring and reporting by the Office of Problem-Solving Courts.[18]
While Maryland law closely prescribes the general requirements to which all PSCs must adhere, each PSC, once established, operates fairly independently.[19] This makes sense considering each PSC works through collaboration with other government and community organizations, since each community—in Maryland, generally defined at the county level—has its own mixture of organizations that are equipped and willing to take part in a PSC. In Carroll County, Maryland’s Adult Drug Treatment Court (CCDTC), the team includes several Circuit Court judges, a program coordinator, case managers, peer mentors, treatment providers, and liaisons from pretrial services, parole & probation, the state’s attorney’s office, and the public defender’s office.[20] The CCDTC program takes a multi-prong approach, including regular status hearings (every other Friday), regular check-ins with both a case manager and a probation agent, mandatory drug testing, working with a peer mentor, attending self-help meetings, and working with a substance abuse treatment provider.[21] CCDTC expects a great deal of work and commitment from participants, but it also provides a high level of support in achieving the program’s goals.
Howard Zehr’s The Little Book of Restorative Justice includes the following in his explanation of restorative principles: focus on harms, recognition of obligations created by those harms, engagement in the response to harm by all parties and the community, addressing causes of harm, and recognizing that offenders are often also victims.[22] When considering DTCs, specifically the CCDTC, in the context of these principles, certain parallels emerge. CCDTC participants must recognize their own obligation to work toward their recovery and, as a means to that end, to follow the CCDTC requirements. The participants themselves must engage in their treatment, but they are surrounded by a community created by the CCDTC team and the organizations that work with CCDTC. CCDTC and other PSCs in Maryland are designed to address underlying causes of harm such as substance abuse, and the PSC model recognizes that offenders who suffer from substance abuse also are victims of their addiction.
CCDTC and other Maryland PSCs certainly do not follow a fully restorative model. To start with, CCDTC only accepts participants who are non-violent offenders, one of Danielle Sered’s main critiques of current justice reform efforts.[23] Participation in a DTC is additionally curtailed by the fact that not every Maryland county has a DTC, and the availability of other types of PSCs are even more limited.[24] Victims do not make up a part of the CCDTC team.[25] In spite of the statutory protections built in, it is still possible for DTC participants to be terminated from their program and face additional incarceration or other penalties.[26] The NPC Research 2022 evaluation of Maryland adult DTCs determined the statewide graduation rate was 64%, hardly a glowing recommendation.[27]
Recognizing these limitations, DTCs still act creatively to reduce incarceration and provide better outcomes for citizens whose substance abuse has led to justice involvement. The same NPC Research report noted that DTC participants in Maryland spent an average of 23 fewer days incarcerated than non-participants over a two year period, that DTC programs invested in treatment services—a needed community investment—and that DTC programs reached a diverse group of participants.[28] During the chance to personally observe one of CCDTC’s Friday status hearings, I witnessed the community support participants receive, including attorneys taking a collaborative approach to future steps, the judge remembering hobbies and family occasions in the participants’ lives, and the participants themselves proudly sharing successes and honestly discussing issues that were impeding progress.
While both the long-term goal of an entire justice system built on restorative principles and the audacity of those who move forward with restorative programs without waiting for the rest of us are laudable, the quotidian work of DTCs and other PSCs still move justice in the direction of a more restorative approach. Howard Zehr recognized the practicality of seeking to be “as restorative as possible.”[29] The Maryland system of PSCs has many areas for growth, including greater access to these alternatives, exploring the possibility of PSCs for those who have engaged in violence, and improving graduation rates. Still, PSCs are one way that the Maryland justice system is working toward being “as restorative as possible,” and their work is worth celebrating and emulating.
[1] Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair 57–59 (2019).
[12] Erin Collins, Problem-Solving Courts and the Outcome Oversight Gap, 92 UMKC L. Rev. 533 (2024); Michel Panaretos Fullerton, Failing to Protect Participants’ Fundamental Rights in Drug Treatment Court, 74 Mont. L. Rev. 375 (2013).
Police “Reforms” You Should Always Oppose…
3. Are the proposed reforms primarily technology-focused? If yes, then you should oppose them because:
a. It means more money to the police.
b. Said technology is more likely to be turned against the public than it is to be used against cops.
c. Police violence won’t end through technological advances (no matter what someone is selling you).[1]
Although many authorities touted body-worn cameras (BWCs) as critical to police accountability, these cameras were quite literally “turned against” the public from the start [2] One of the demands that came out of the early days of the Black Lives Matter movement was greater transparency and accountability from the police. [3] BWCs were presented as a tool that would objectively show interactions between police and citizens.[4] What BWC footage shows however, is a grainy “point of view” perspective shot of the public, the officer is not in frame.[5] BWC footage is used in cases against the public and even when considering the constitutionality of police actions.[6] It is imperative that courts address the inherent bias present in BWC to protect the public and deliver justice. Concepts of “filmic enunciation” and “the gaze” from film theory can inform the cinematic nature of BWC footage, addressing this bias.
Video evidence is widely regarded in mainstream culture, by judges, and in courts as “true” and “unbiased.”[7] Having evidence of officer and citizen interactions promised to be a solution to the issue of transparency and accountability. [8] The implementation of BWCs was embraced by police forces and promoted by many vocal stakeholders including, activist groups and legislators.[9] This technological reform promised police accountability through greater surveillance, but the officers are not the ones being surveilled by BWCs.[10] The dominant rhetoric around BWC footage did not address the inherent bias of this footage as it depicted the public through the perceived perspective of an officer. The promise of BWC footage hinges on the dominant belief that film is an objective media.[11] However, film is not objective. It is not truth, but rather a medium that depicts perspective. [12] Film is subject to all the biases and rules of depiction of a painting.[13] What gives film the illusion of truth is the filmic enunciation: the system that presents the framework of film as truth. [14]
Part of what creates the framework of film as truth in cinema is the depiction of the film through the point of view of a character; that point of view is not fixed on one object or from one perspective. [15] Similarly, BWC footage depicts the point of view of an officer, but the point of view is not static, it is discretionary; it shows choppy images of where the officer directs the camera. This change in framing and subject of BWC footage is what creates the illusion of truth in the viewer.[16]
While the choppy quality of the film contributes to the perceived truth of the footage, the perspective from which the film is shot further biases the viewer in favor of the officer by putting the viewer in the “position” of an officer during an interaction with the public.[17] BWCs are typically placed high on an officer’s chest. [18] This near-eye-level recording creates a “point of view” shot. The footage depicts what is directly in front of the camera, with audio from the scene and recording of the officer’s voice.[19] For a viewer watching the footage, they are put into the position of occupying the world through the perspective presented by the BWC footage.
In Christian Metz’s book, The Imaginary Signifier, he speaks about how when someone is viewing a film they take on the position of the spectator.[20] Metz argues that the spectator is “all perceiving,” their reality is in the film frame.[21] Since the spectator’s body is not visible on screen, the viewer accepts what is being presented as their own vision.[22] The viewer is then positioned “entirely on the side of the perceiving instance.”[23] When someone views BWC footage, they step into the position of the officer, who in this situation is the theoretical “all seeing spectator.”[24] This position as the truth wielding spectator creates an inherent bias in the viewer that favors what is being shown before them—despite the other circumstances that are happening all around the filmed frame—including the officer’s own actions.
In Laura Mulvey’s famous film theory article “Visual Pleasure and Narrative Cinema” she breaks down the concept of the gaze in film.[25] The “gaze” refers to the power dynamics that come along with being the active viewer and the object, or the party to be viewed.[26] Mulvey describes the active/looking party as occupying the position of the hero, the position of power and truth.[27] When the hero, the active/looking party, is depicted as a police officer or a representative of the law, the looking party’s perspective is representative of the “law” and is meant to connote truth.[28] Meanwhile the “to be viewed” party is inversely affected by the way they are framed.[29] The object to be looked at is presented as the object of scrutiny, a viewer watches the object as a spectacle on screen, they are disempowered through being surveilled.[30] This parallels how bodycam footage is presented with the officer occupying the position of hero, the looking party. The public is the looked at object, the object of scrutiny, their actions are the ones on display, they are disempowered. When watching BWC footage the viewer sees the public as spectacle while occupying the position of the officer, who is positioned as the “hero.”
When courts and juries treat BWC footage as objective it is dangerous for the public partially because of the reasonableness standard that officers are held to in cases where they are being charged with excessive force. In Graham v. Connor, the court held that “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[31] The framing of an officer as the spectator in BWC footage puts them in a position of power.[32] This position of power is likely to favor the perceived reasonableness of the officer on the scene. The camera gives an impression of the officer’s perspective, but it is not the true or objective account of the interaction between police and the public.
This was exemplified in the case of Derrick Price. While Price was sitting in his car officers approached him because he was a suspect in a crime. Price complied, getting out of his car and onto the on the ground as the officers headed towards him.[33] Despite Price’s compliance, the officers brutalized him.[34] The officers on the scene were wearing BWCs, and what the footage showed was shaky footage of the officers running to the scene, audio of the officers shouting at Price to “[s]top resisting.”[35] The BWC footage depicted a high stress and potentially threatening scene.[36] However, security footage from a nearby building showed that Price complied with orders and attempted to surrender to officers who brutally beat him.[37] The footage not only presented a bias in favor of the officers, the officers also wrote their incident reports depicting the fiction their BWC footage showed.[38]
The idea that BWC footage represents an objective view of interactions between police and the public is the first place to begin when addressing the issues with the footage itself. If we can call attention to the fact that this footage is not truth, that it is a biased perspective, we can make clear eyed decisions on whether and how we use the footage all together. If the public can understand the cinematic nature of BWC, people can make informed decisions on whether to and how to use this medium.
[1] Mariame Kaba, Police “Reforms” You Should Always Oppose…, Prison Culture Blog (Dec. 1, 2014), https://www.usprisonculture.com/2014/12/01/police-reforms-you-should-always-oppose/.
[2] Howard M. Wasserman, Moral Panics and Body Cameras, 92 Wash. U. L. Rev. 831, 831-32 (2015).
[6]See State v. Bliss, 291 A.3d 551, 555 (R.I. 2019) (“Officer McKenna’s bodycam footage was the most compelling evidence, refuting defendant’s claim that he was complying.”); Floyd v. City of New York 959 F.Supp.2d 668, 685 (S.D.N.Y. 2013) (finding that BWC footage can address the constitutionality of stop and frisks by NYPD officers).
In 1997, the Vermont Supreme Court issued a landmark decision in Brigham v. State, holding that the state’s existing system of financing public education violated the Vermont Constitution.[1] The Court emphasized that educational opportunity could not be conditioned on local property wealth, because doing so entrenched inequality and denied students from poorer districts the same educational access as their peers in wealthier ones.[2] The Brigham decision became the foundation for Vermont’s equalization efforts in education finance, eventually leading to Acts 60 and 68, and now to Act 73, the newly adopted school funding reform.[3] While Act 73 is in many respects a positive step toward fairness, its provision for supplemental local spending represents a significant departure from Brigham’s vision. By allowing wealthier communities to layer additional resources onto their schools, the law undermines its own commitment to equality and risks reintroducing the very disparities Brigham sought to remedy.
Act 73 was crafted in response to longstanding concerns about Vermont’s existing local control school finance model, which had become increasingly complex and unsustainable.[4] The law revises the state’s funding formula to better reflect the costs of educating students in districts with higher needs. Specifically, it weights student counts more heavily for factors such as poverty, English language learning, and rural location.[5] Act 73 thus acknowledges that equal funding does not always mean equal opportunity: some students require more resources to achieve comparable outcomes, and some schools face structural challenges that make providing education more expensive. This approach aligns with Brigham’s recognition that absolute equality in per-pupil spending is not always possible or desirable, as differences in expenditure may arise from legitimate educational needs.[6] Act 73 thus represents a serious effort to design a funding system that is more responsive, equitable, and constitutionally sound.
However, Act 73’s allowance for supplemental local spending introduces a major flaw. Under the law, districts that wish to spend above the formula’s allocations may do so, provided their taxpayers are willing to shoulder the burden.[7] On the surface, this may seem like a harmless recognition of local choice and community investment. Yet in practice, it creates a pathway for wealthier districts to outspend others, not because of any legitimate educational cost differential, but simply because they have the financial capacity to do so. This move is in stark tension with Brigham, which cautioned against tying educational opportunity to income or wealth.[8] By reintroducing local discretion in this way, Act 73 risks repeating old mistakes in a new form.
The Brigham Court was careful to note that differences in educational spending would persist even under a fair system, stating “differences among school districts in terms of size, special educational needs, transportation costs, and other factors will invariably create unavoidable differences in per‐pupil expenditures.”[9] But importantly, each of the reasons Brigham listed for spending variation is accounted for in Act 73’s new formula. Rural isolation is weighted, poverty is weighted, and other factors like English language learning are weighted.[10] These built-in adjustments ensure that when one district receives more state aid than another, the difference is grounded in actual educational needs, not in the accident of property wealth. The supplemental spending provision therefore stands apart from this logic. It does not exist to address any gap or need overlooked by the formula. Instead, it simply provides wealthier districts with an avenue to enhance their schools beyond the level of equity the system is designed to guarantee.
This is where Act 73 undermines itself. On the one hand, it takes meaningful steps toward aligning Vermont’s education finance system with constitutional principles of equality. On the other hand, it simultaneously authorizes a mechanism that risks undoing this progress. If wealthy towns can regularly outspend others, students in those communities will enjoy smaller class sizes, broader course offerings, and more extracurricular opportunities. Meanwhile, students in less affluent districts will be confined to what the formula provides. While the baseline may be fairer than before, the overall system once again begins to resemble the tiered structure Brigham condemned—a base level of opportunity for all, supplemented by premium access for those fortunate enough to live in affluent areas.
Defenders of the supplemental spending provision may argue that local autonomy and community investment are important values, and that denying districts the option to go above and beyond is unfair. Yet this argument overlooks the central insight of Brigham—that the Vermont Constitution obligates the state to provide substantially equal educational opportunity to all children, regardless of where they live.[11] Allowing supplemental spending privileges the preferences of wealthy taxpayers over the rights of children in poorer districts. It makes a child’s opportunities dependent once again on the resources of their town, which is precisely the inequity Brigham struck down.
Ultimately, Act 73 represents both progress and regression. Its revised formula shows a sophisticated understanding of how to equalize resources while accounting for legitimate differences in cost. This is a major step forward for Vermont, and one that deserves recognition. But by preserving space for supplemental spending, the law opens the door to a two-tiered education system in which wealthier districts can consistently provide more than others. If Vermont is to fully honor the constitutional principles articulated in Brigham, it must close this loophole. Only by committing to a system where funding differences stem from educational needs rather than community wealth can the state ensure that every child, regardless of zip code, has a fair shot at the opportunities education provides.
[1]See Brigham v. State, 692 A.2d 384, 385 (Vt. 1997).
Puerto Rico’s return to the promised land suffered yet another roadblock. In early August 2025, President Trump removed five of the seven members of the federally imposed Financial Oversight and Management Board.[1] In 2016 as a result of Puerto Rico’s $70 billion debt, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).[2] Congress intended this Act to provide a method for Puerto Rico to “achieve fiscal responsibility and access to the capital markets.”[3] The act included the creation of the aforementioned Financial Oversight and Management Board (the “Board”) with the responsibility to oversee Puerto Rico’s budget and help restructure Puerto Rico’s billion-dollar debt.[4] The Board is composed of seven members appointed by the President, and six of those members are selected from lists provided by the House and Senate leaders.[5] The President does have the power to remove these members but only for cause.[6]
Following the dismissals, the White House stated that the board “has been run inefficiently and ineffectively by its governing members for far too long and it’s time to restore common sense leadership.”[7] What this “common sense leadership” might look like is yet to be determined because none of the vacancies have been filled. This could take time, given that Congress only required that the vacancies be filled “in the same manner in which the original member[s] [were] appointed.”[8] There are no provisions in PROMESA requiring that these positions get filled within a certain number of days, and there are no interim members. How long it will take for these vacancies to be filled is difficult to predict, but the effects are starting to be seen.
Shortly after dismissing the members, a deal to restructure the remaining debt fell through.[9] The unsettled debt is from the Puerto Rico Electric Power Authority, and it amounts to $8.5 billion.[10] The proposed deal would have paid creditors $2.6 billion instead of the full $8.5 billion they seek.[11] The executive director of the Board repeatedly said that Puerto Rico cannot afford to pay the full debt.[12] Experts believe the recent vacancies may lead to the appointment of members who favor the creditors receiving full payment.[13] One of the exiting members, Andrew Biggs, pointed out how it is likely the board will be stacked with lobbyists who favor the bondholders.[14] Stacking the board with members who favor the interests of these creditors would be detrimental to Puerto Rico’s economy. The citizens of Puerto Rico are already struggling to make ends meet as it is. Puerto Rico has a lower median income than all 50 states and one of the highest electric bills in the United States.[15] It is essential that the President and leaders of both parties in Congress remember that the board represents Puerto Rico in this entire process.[16]
The dismissal of five of the seven members will likely also extend the presence of the oversight board. Congress established two requirements for the board to be terminated. First, the Board must certify that “the government has adequate access to short-term and long-term credit markets at reasonable interest rates to meet the borrowing needs of the territorial government.”[17] Second, for “at least 4 consecutive fiscal years the territorial government has developed its budgets in accordance with modified accrual accounting standards; and the expenditures made by the territorial government during each fiscal year did not exceed the revenues of the territorial government during that year.”[18] Without the experience of a continually-operating, full-strength Board, it will be even more difficult to fulfill these requirements. Thus, the dismissal of over half the Board is likely to extend its presence.
After nine years under the supervision of the Oversight Board, Puerto Rico finally passed one budget in accordance with the second requirement.[19] While this may be a sign of a light at the end of the tunnel, the government must pass three more balanced budgets. Hopefully, this will not be jeopardized by the pending deal with the power authority creditors. An unfavorable deal could result in even higher electricity bills or worse yet, the government falling back into bankruptcy.[20]
The Oversight Board has been highly criticized for the enormous budget cuts it has made to different government agencies while spending an exorbitant amount of money on consultants, advisors, and experts.[21] The President and Congress have the power to appoint people who will represent the interests of Puerto Rico. The people of Puerto Rico desperately await the fulfillment of this promise. The three million United States citizens that live in Puerto Rico deserve better.
Artificial intelligence (“AI”) now enables nearly identical simulations of a person’s voice or likeness known as digital replicas.[1] In April 2023, an AI-generated song imitating Drake and The Weeknd went viral, earning millions of streams from genuine fans before being taken down.[2] The “Fake Drake” scandal shows that artists can easily be replicated without consent, raising urgent legal questions about ownership rights, exploitation, and free expression.[3]
Without amending federal legislation, states with prominent music industries moved quickly to protect their artists.[4] Tennessee’s Ensuring Likeness, Voice, and Image Security (ELVIS) Act amended its right of publicity statute to explicitly prohibit AI-generated voice and likeness impersonations.[5] New York followed with its Digital Replica Law, which scrutinizes artist agreements, specifically contracts authorizing the use of digital replicas.[6]
Both Tennessee’s ELVIS Act and New York’s Digital Replica Law attempt to protect artists from AI misuse, but each raise First Amendment concerns.[7] Tennessee’s sweeping liability regime risks unconstitutional overbreadth, while New York’s narrower, contract-based approach still constrains contractual speech by limiting employment agreements.[8] A federal framework, such as the proposed NO FAKES Act, should learn from these state models and strike a balanced that safeguards artists without chilling free expression.[9]
I. State Responses: Tennessee and New York
A. Tennessee’s ELVIS Act
Effective in July 2024, Tennessee’s ELVIS Act, makes “voice” a protected attribute under the state’s right of publicity.[10] The Act defines voice broadly to include both actual and simulated sounds “readily identifiable and attributable to a particular individual.”[11] Liability extends to replica authors, host platforms and distributors, and the developers of tools with the “primary purpose” of creating replica content.[12] Violations can result in civil damages, injunctive relief, and even criminal penalties.[13]
The Act contains fair use exemptions news, public affairs, and sports broadcasts, but limits them only “to the extent such use is protected by the First Amendment.”[14] This vague language leaves reporters, commentators, or satirists unsure whether their content is shielded from liability.[15] Practitioners also highlight the state law’s expansive reach, warning that it imposes obligations on out of state platforms and risks unconstitutional overbreadth.[16]
B. New York’s Digital Replica Law
New York’s Digital Replica Law, effective January 2025, takes a narrower approach. It voids contracts that authorize a replica to 1) replace work the performer would otherwise have done in person, 2) fail to clearly define the intended use, or 3) were negotiated without artist representation.[17] The law also targets contracts to help protect artists by voiding contracts with certain provisions.
By targeting exploitative contracts, New York’s law mirrors principles in collective bargaining agreements, including the Screen Actors Guild—American Federation of Television and Radio Artists’ (SAG AFTRA’s) AI provisions.[18] Unlike the ELVIS Act, this statute emphasizes bargaining power and informed consent instead of broad liability. Keeping the law contract-focused makes the law more defensible under the First Amendment.[19] Still, because it restricts contractual speech, some practitioners worry that it limits permissible artist agreements and expressive uses in entertainment markets.[20] The New York State Bar Association warns that poorly tailored restrictions risk chilling legitimate AI applications, even with consent.[21]
II. Toward a Federal Framework
Recognizing the rapid rise of AI-generated works and limits of state regulation, Congress has begun considering federal action.[22] The NO FAKES Act, proposed in 2023, would create a federal right against unauthorized digital replicas, however its initial draft is highly criticized as overbroad and potentially unconstitutional.[23] In 2024, the U.S. Copyright Office concluded that state laws are inadequate and called for consistent federal legislation that balances protection with First Amendment concerns.[24] The Office recommended limiting liability to distribution of unauthorized replicas, adopting safe harbor provisions for platforms, and creating a flexible balancing framework instead of categorical exemptions.[25]
Professional associations also support federal regulation. The American Bar Association’s 2025 Resolution 501 urged Congress to enact legislation “protecting an individual’s right to authorize or prevent” digital replicas of their likeness and voice. It emphasizes strong safeguards to ensure future laws align with the First Amendment and addresses publicity rights, privacy, innovation, and third-party liability.[26]
Conclusion
AI-generated replicas pose real risks to artists, but state efforts reveal the dangers of overcorrection. Tennessee’s ELVIS Act recognizes the importance of protecting voice and explicitly addresses AI-generated replicas, yet its sweeping liability section risks chilling various expressive works. New York’s Digital Replica Law, by contrast, emphasizes informed consent and voids exploitative contracts, though it still regulates speech through chilling over restriction.
As Congress revisits the NO FAKES Act, it should draw inspiration from both: adopt ELVIS’s recognition of voice and AI replicas as protectable interests, while rejecting its overbroad liability provisions, and incorporate New York’s contract-based safeguards to ensure informed consent. A federal framework built on these principles can help protect artists from exploitation without undermining the expressive freedoms outlined in the First Amendment.
[1] U.S. Copyright Off., Copyright and Artificial Intelligence, Part 1: Digital Replicas 1 (2024).
Since the start of the twenty-first century, employers have increased their monitoring of employees to track productivity.[1] This practice dates to the early days when employers hired a group called “The Pinkertons” to conduct workplace surveillance.[2] Now employers can monitor every click, movement, and even biometric signal of their employees.[3] Employers have expanded to monitoring employees even in their own homes, thanks to the rise of remote work.
This blog argues that the law should officially establish a fiduciary relationship between employees and employers when it comes to handling workplace data. Since no such duty currently exists, this proposal outlines what that duty entails, the relationship it should replicate, and how the legislative or judicial branch can implement the proposed law.
The Current Framework
In the United States, there is no single, comprehensive federal law that strictly limits employee surveillance. Instead, federal statutes indirectly regulate workplace monitoring by prohibiting its use in ways that violate specific employee protections.
The main law governing the interception of communications is the Electronic Communications Privacy Act (“ECPA”). While this law governs electronic surveillance, in practice, it provides little protection for employees. Congress enacted the ECPA in 1986,[4] far before remote work, AI monitoring, and constant digital surveillance became the norm. Additionally, the ECPA prohibits the interception of electronic communications but carves out broad exceptions that largely favor employers. Under the “ordinary course of business” exception, employers may lawfully monitor communications made on company systems if they claim a legitimate business purpose.[5] The statute also includes a “consent” exception, allowing employees to consent explicitly or implicitly when they use employer-provided devices after receiving notice of monitoring.[6] In short, the ECPA demonstrates how current federal law is outdated and was designed for email and phone calls, rather than the algorithmic surveillance pervading today’s workplaces.
The COVID-19 pandemic highlighted the weaknesses of existing federal employee protection laws. Practically overnight, massive numbers of employees transitioned to remote work, and employers needed a way to monitor their employees.[7] As the American Bar Association noted, remote work spurred a surge in employer use of tracking apps, wellness software, and “bring your own device” policies.[8] This moment exposed the asymmetry of control between employers and employees. Workers had no meaningful opportunity to consent to surveillance; participation became a condition of continued employment.[9] The power imbalance during this period reflects a relationship where the dominant party can exploit it unless the law imposes restrictions.
Why a Fiduciary Duty Fits in the Employment Relationship
Fiduciary duties exist to regulate relationships built on trust and vulnerability. Doctors, lawyers, financial advisors, and trustees are bound by duties of care, loyalty, and confidentiality because they control sensitive information that directly affects another’s wellbeing or rights.[10] Establishing an employee-employer fiduciary relationship would shift the employment relationship from one governed by minimal regulatory compliance to one grounded in heightened ethical and legal obligations.
The employer-employee relationship also shares the characteristics with the professions listed above. Employees entrust their colleagues with sensitive information – such as location, health, and communications – hoping they protect the data. However, due to the consent exception in the ECPA, there is a possibility that employers can misuse the data to discriminate against and even manipulate performance evaluations.[11] As Ifeoma Ajunwa has shown, employers can use the information their employees provide to delve into aspects of their behavior, including running an analysis on the risk of injury.[12] The potential misappropriation, if employed in that way, can undermine trust and increase the harms that a fiduciary duty aims to prevent.
What the Law Should Look Like
The proposed law should establish three core responsibilities when managing employee data: duty of care, duty of loyalty, and duty of confidentiality. It is important to note that these responsibilities do not eliminate the possibility of employee monitoring, as there are certain benefits to it.[13] Instead, the law would establish a legal baseline of fairness, allowing employers to use the tool while protecting employees’ data from abuse.
Duty of Care
Employers must implement reasonable safeguards to protect employee data from misuse, unauthorized access, or breaches. These safeguards can include limiting data collection to legitimate business purposes and adopting secure storage and retention practices.
Duty of Loyalty
Employers must prioritize employees’ best interests regarding their data. They should be prohibited from selling, sharing, or exploiting surveillance information in ways that can harm employees, such as targeting union activities or using irrelevant personal data in employment decisions.
Duty of Confidentiality
Employers must disclose what information they collect, how it is used, and when it is deleted. Additionally, employees should have access to their own data and the right to correct any inaccuracies.
Models for Implementation
Congress or the judiciary can establish this framework through legislation or through the development of common law.
Statutory Approach
Congress can create and codify an “Employee Data Protection Act.” This Act would explicitly impose a fiduciary duty of care, loyalty, and confidentiality on all employers who collect surveillance data.
The Act should mirror aspects of the General Data Protection Regulation (“GDPR”) law in the European Union. The GDPR has strict limits on data collection for consumers and references collective bargaining in the regulation.[14] It enhances individuals’ rights to data protection, imposes more stringent obligations on data processors, and grants regulators stronger enforcement powers.[15] Additionally, the GDPR imposes heavy fines on any company that violates the regulation—up to 20 million euros or 4% of global revenue (whichever is greater).[16] My approach would offer clarity and flexibility, enabling independent agencies, such as the Equal Employment Opportunity Commission, to implement regulations and establish private rights of action for employees.
Judicial Approach
Courts could evolve fiduciary principles through the common law, extending them to employment relationships involving significant data control. Supreme Court precedent also allows for the expansion of fiduciary relationships. In Jaffee v. Redmond, the Court recognized fiduciary obligations of confidentiality in the physician-patient and psychotherapist-client contexts even before statutory protection existed.[17] Furthermore, the court found that this privilege is rooted in the need for confidence and trust, which are essential requirements for effective psychotherapy.[18]
Judicial recognition would mirror the fiduciary duties of other professions, basing it on power dynamics and trust. Courts could hold employers who collect and control sensitive surveillance data equal to other fiduciaries, such as banks, entrusted with information that could harm the beneficiary if misused.
Although establishing this duty through judicial recognition may be slower than legislative action, it provides greater flexibility. This approach allows courts to develop a nuanced understanding of what constitutes acceptable monitoring versus exploitative data use, tailoring their decisions to the specific circumstances of each case. Over time, it could create a body of precedent that clarifies the limits of employer surveillance, promoting more ethical data practices and building trust in digital and workplace environments.
Conclusion
Workplace surveillance reveals a significant weakness in U.S. employment law: employees are increasingly sharing more of their personal information with employers, yet, as a practical matter, they have no legal obligation to protect that information. Establishing a fiduciary duty for employers in managing employee data could close this gap. Such a duty would transform surveillance from an unchecked management tool into a regulated trust-based relationship. Whether established by law or defined by courts, a fiduciary framework would ensure that technology fosters fairness and dignity, not control and fear, in today’s workplace.
[8] Alvin Velazquez & Muyi Zhang, Labor Laws and Surveillance in the Time of COVID-19: A Demand for Better Worker Protections, 38 A.B.A. J. Lab. & Emp. L., 93, 97, 102 (2024).
[9]See Shreya Chowdhary et al., Can Workers Meaningfully Consent to Workplace Wellbeing Technologies, arXiv 1, 2 (Mar. 13, 2023) (arguing that inherent power imbalance in the workplace prevents employees from giving meaningful consent).
[10]See generally Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (stating that a fiduciary duty is held to something stricter than the “morals of the marketplace,” and asserting that a fiduciary standard is of a higher standard).
[11] Ifeoma Ajunwa, Algorithms at Work: Productivity Monitoring Applications and Wearable Technology, 63 St. LOUIS U. L. J. 21, 30–32 (2019
[14] Alvin Velazquez & Muyi Zhang, Labor Laws and Surveillance in the Time of COVID-19: A Demand for Better Worker Protections, 38 A.B.A. J. Lab. & Emp. L., 93, 100 (2024).
Photo by United States Drug Enforcement Administration
By Kathryn Stapleton
For many people with Attention Deficit Hyperactivity Disorder (ADHD), Narcolepsy, or Binge Eating Disorder (BED), medications like Adderall (mixed-salt amphetamine), Vyvanse (lisdexamfetamine), and Dexedrine (dextroamphetamine) are not optional; instead, for many patients, they provide the fortitude to take on daily life. However, since late 2022, both patients and prescribers have faced persistent barriers to accessing these medications. While manufacturing difficulties and swings in demand play a part, the core driver is pure regulatory red tape: the Drug Enforcement Administration’s (DEA) annual production quotas for Schedule II stimulants.[1] These quotas, designed to prevent diversion, now function as a restriction to accessibility. It is time to transform these regulations to safeguard both public health and supply security.
How the Quota System Works and Why It Matters
Under the Controlled Substances Act (CSA), the DEA must set aggregate production quotas (APQs) each year for every Schedule I and II substance, including amphetamine, dextroamphetamine, lisdexamfetamine, and methylphenidate.[2] The implementing regulation, governs manufacturer-specific quotas and procurement quotas.[3] In 2018, the DEA revised its framework to emphasize diversion risks in quota setting, increasing its discretion to limit supply further.[4] DEA establishes APQs annually and can adjust them mid-year when shortages emerge. In 2024, the DEA issued initial quotas in January. By September, the APQ for lisdexamfetamine (Vyvanse) and d-amphetamine (for conversion) increased after the FDA formally requested an increase based on shortage data.[5] This incident demonstrates that the safety valve can function—but only after supply stress has persisted long enough to trigger pressure from patients, public health officials, and congressional oversight measures.
Human Costs of a Shortage
The FDA first publicly acknowledged an Adderall shortage in October 2022 and kept patients updated as constraints spilled into other stimulants, especially once Vyvanse demand rose after generics launched in 2023.[6] Meanwhile, the Department of Health and Human Services chronicled record-level U.S. drug shortages more broadly, underscoring that persistent gaps harm access and raise costs overall.[7]
Congress also took notice of the issue and, in 2023, outlined the federal levers for addressing Adderall shortages.[8] Additionally, in 2024, Congress pressed the DEA on how it weighs medical need against diversion in its quota decisions.[9] Policymakers signaled that quota transparency and coordination with the FDA must improve for the benefit of both prescribers and patients.
What the Law Requires and What It Doesn’t
The CSA directs the Attorney General to set quotas at levels “necessary to meet the estimated medical, scientific, and research needs of the United States.”[10] Regulations even provide measures to set quotas in dosage-form terms to avoid overproduction, shortages, and diversion.[11] So on paper, the regime is supposed to balance access and control. However, in practice, the balance has shifted towards heavy diversion control, characterized by unclear methods and lengthy lags before adjustments hit the market.
The DEA and the FDA jointly acknowledged this in an August 2023 statement, stating that supply problems stem from many factors, outside of diversion, such as supply chain issues and demand swells. The FDA sees clinical demand, and the DEA controls the legal ceiling on active ingredient production. When those perspectives misalign, patients feel it at the pharmacy counter. While executive agencies do not manufacture drugs or compel output, they must coordinate closely with manufacturers to reduce the impact of shortages.[12]
Where the Current Framework Falls Short
Current medical-need research is opaque and lacking. The statute’s “estimated medical…needs” language does not specify methodology.[13] Neither DEA’s annual APQ notices nor individual-quota adjudications consistently disclose how prescribing trends, shortage data, and inventory levels are weighted.[14]
DEA policy gives diversion priority over accessibility. Post-opioid crisis rules elevated “potential for diversion” in quota setting.[15] That makes sense for harm reduction, but stimulants are not opioids, and shortages impose their own health risks, such as school and work impairment, driving hazards for narcolepsy patients, and mental-health setbacks for those dealing with binge eating disorder.
Reforms That Preserve Control and Increase Accessibility
First, make medical-need findings explicit and data-driven. Congress should amend 21 U.S.C. § 826 to require the DEA to use and publish current-year demand inputs from the FDA (utilization, prescriptions filled, new approvals, pediatric use), along with inventory and backorder metrics.
Second, formalize the FDA’s role in stimulant quotas. Congress can give the FDA a consultation trigger for Schedule II stimulant APQs and individual quotas, especially during declared shortages under 21 U.S.C. § 356c (drug shortage statute).[16] The 2024 lisdexamfetamine order already reflects de facto reliance on FDA shortage determinations. Thus, the law should make that coordination proactive, not emergency-only.
Third, improve oversight and public accountability. Congress should continue bipartisan oversight, such as requesting methodology, inventories, and allocation rationales, so that it can see whether rising diagnoses and legitimate prescribing are reflected in quota levels.[17]
Addressing the Diversion Concern
Yes, stimulant misuse exists. However, quotas are a crass instrument for a limited problem. Targeted tools such as prescription drug monitoring programs (PDMPs), telehealth prescribing standards, and audits of high-risk prescribers directly mitigate misuse while keeping legitimate patients supplied.
The quota system is a vital guardrail against diversion. However, when that guardrail obstructs access, it leaves classrooms unsettled, workers struggling, and patients rationing medication to stay afloat. The next step is to reform the framework so the response during the subsequent shortage is timely, transparent, and tuned to the real-world demand. The government owes patients responsible oversight that keeps medicine available, so evidence-based ADHD, Narcolepsy, and BED care can continue uninterrupted.
[7] Rini Beleche & Allison Kolbe, Medical Product Shortages in the United States: Demographic and Geographic Factors and Impacts, U.S. Dep’t of Health & Hum. Servs., (July 15, 2024), https://aspe.hhs.gov/reports/medical-product-shortages.
[8] Lisa Sacco, Cong. Rsch. Serv., The Federal Role in Addressing the Adderall Drug Shortage (May 4, 2023).
Influenza pandemics, by nature unpredictable and periodic, pose significant threats to human health and global economic stability.[1] Since January 2022, over 160 million birds across all 50 states in the U.S. have tested positive for avian influenza.[2] By 2025, more than 30 million egg-laying hens were culled, with Ohio alone accounting for 13.5 million of these losses.[3] These disruptions have contributed to soaring egg prices, with wholesale prices reaching record highs. [4] Alarmingly, 70 individuals in the U.S. contracted avian influenza, predominantly farmworkers exposed to infected poultry, with one fatality reported.[5] While no evidence of person-to-person transmission has been found, the unpredictability of such pandemics and the heightened risks to farmworkers have raised concerns about occupational exposure.[6] Given these risks, swift containment and eradication of avian influenza outbreaks are essential not only to protect poultry populations but also to safeguard worker health, prevent human infections, and stabilize the broader agricultural economy.
This paper examines the economic and health implications of avian influenza on agricultural workers, assesses federal and state policy responses, and proposes targeted policy measures to enhance preparedness and protect workers. Section II provides an overview of avian influenza, including its various strains and transmission pathways, with an emphasis on the increased vulnerability of labor populations, particularly those in agriculture, and the heightened health risks they face. Section III analyzes federal interventions, focusing on the roles of agencies like the USDA, CDC, and OSHA in safeguarding worker health, managing outbreaks, and minimizing disruption in agricultural production. Section IV reviews state-level responses, identifying best practices in regions like California, where statewide regulations have proven effective, and highlighting disparity in enforcement and resources, particularly in rural and underfunded areas. Section V draws on lessons from past zoonotic outbreaks, proposing comprehensive reforms that not only promote coordinated and equitable protection for essential workers but also enhance policy enforcement, ensuring that future outbreaks are met with robust and proactive solutions.
II. The Resurgenceof H5N1 in the United States.
The resurgence of highly pathogenic avian influenza (HPAI) in the United States posed significant public health risks, particularly to those in close contact with infected animals.[7] In 2009, advances in the development of antivirals and experiences with H5N1 infections in poultry and humans,[8] contributed to a growing understanding of influenza pandemics. The emergence of the swine influenza virus that same year provided further insights into the behavior and spread of pandemic influenza strains,[9] which helped shape the requirements for pandemic preparedness and response. [10]
H5N1 is a highly contagious disease in birds caused by influenza A viruses.[11] These viruses are primarily found in specific species of waterfowl and shorebirds.[12] Low pathogenic avian influenza (LPAI) and highly pathogenic avian influenza (HPAI)spread among poultry and wild birds.[13] LPAI causes mild respiratory symptoms, while HPAI A poses a significant zoonotic threat to birds, dairy cattle, and humans globally.[14]
In 2015, the HPAI H5N1 was first detected in a sample collected from wild migratory birds in the United States.[15] The virus later reemerged in agricultural poultry stocks across the U.S. in 2022, leading to widespread outbreaks.[16] On February 8, 2022, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (USDA APHIS) Veterinary Services confirmed the presence of H5N1 in a commercial poultry flock in Dubois County, Indiana. [17] By February 24, the virus had spread to commercial poultry operations and backyard flocks across seven states: Indiana, Kentucky, Virginia, New York, Maine, Delaware, and Michigan.[18] The first confirmed human case of H5N1 linked to the 2022 outbreak was reported in 2023, involving direct exposure to infected poultry.[19]
Following the detection of HPAI H5N1 in 2022, the USDA APHIS initiated the preparation of a draft Environmental Assessment and a draft Finding of No Significant Impact (FONSI), pursuant to the National Environmental Policy Act (NEPA).[20] The Environmental Assessment, issued in April 2022, evaluated the potential environmental impacts of USDA’s proposed emergency response activities, including depopulation of infected flocks, disposal of carcasses, cleaning and disinfection of premises, and implementation of quarantine measures.[21] These documents provided the legal foundation for Veterinary Services to implement coordinated emergency actions across the seven states.[22] The final Environmental Assessment, titled Emergency Response for HPAI Outbreaks in Seven States, together with the final FONSI, was published in September 2022.[23] Despite these measures, HPAI outbreaks continued to affect commercial poultry, backyard flocks, and dairy cattle throughout the United States.
(a) Occupational Health Risks and Economic Consequences
Workers in the poultry industry face elevated risks of H5N1 infection due to frequent exposure to contaminated birds, surfaces, and environments.[24] Infected birds shed the virus through their saliva, mucus, and feces, creating multiple pathways for human infection,[25] primarily through inhalation of aerosolized particles or contact with contaminated surfaces.[26] Those most at risk include individuals employed across various sectors of poultry production, such as poultry farmers and their staff, service technicians at poultry-processing plants, caretakers at poultry facilities, workers in layer barns and live bird markets, employees handling chicks at egg production sites, personnel engaged in disease control and eradication efforts, and individuals involved in the bird-fighting industry.[27]
Symptoms of HPAI H5N1 in humans can range from mild, such as eye redness or a mild cough, to severe, including pneumonia requiring hospitalization.[28] Common symptoms include fever, sore throat, nasal congestion, muscle aches, and shortness of breath, while less common manifestations may involve diarrhea, nausea, or even seizures.[29] While globally, H5N1 carries a high case fatality rate,[30] the number of deaths in the United States remain low; as of 2025, fewer than 10 confirmed human cases have resulted in death.[31]
Beyond the health hazards, HPAI outbreaks have caused economic hardship for farmworkers.[32] The quarantine measures, the culling of diseased birds, and the closure of poultry farms all result in job losses and shortened working hours, leaving many people without consistent income.[33] While some workers may be eligible for compensation through federal or state programs, there are notable gaps in these procedures, particularly for workers in control zones (designated areas surrounding infected premises where movement is restricted to contain disease spread) who do not have contaminated flocks but suffer financial losses.[34]
The economic burden of the H5N1 outbreak extends beyond individual workers, by affecting entire agricultural operations and contributing to rising food prices and supply chain instability.[35] In the poultry sector, culling over 150 million chickens to contain the virus has reduced the egg supply by 7–10%, driving retail prices as high as $9 per dozen and causing intermittent shortages in grocery stores.[36] Smaller operations, such as Kakadoodle Farm in Illinois, illustrate the human and financial toll: the farm lost 3,000 pasture-raised hens and over $100,000 in projected revenue.[37] In the dairy industry, H5N1 has been detected in cattle herds across at least nine states.[38] This results in short-term milk production declines of 10–20% and higher operational costs related to testing, movement restrictions, and biosecurity upgrades.[39] Although dairy cows are not culled, the economic impact remains considerable, particularly given the industry’s already thin profit margins. These disruptions contribute to inflationary pressure on food prices and expose structural vulnerabilities in the U.S. food system.[40]
III.Federal Policy Responses to Avian Influenza
(a) USDA’S APHIS And Veterinary Service
Federal policies have played a critical role in mitigating the impacts of H5N1 on public health, worker safety, and animal welfare. The USDA, through its APHIS and Veterinary Services, is responsible for protecting the health, quality, and marketability of U.S. animals and animal products by preventing, controlling, and eliminating infectious diseases.[41] In response to the H5N1 threat, APHIS conducts virus surveillance among commercial and backyard poultry, wild birds, and dairy cattle, and performs confirmatory testing for HPAI H5N1 in domestic and wild animal populations.[42] APHIS has measures to prevent the interstate transmission of H5N1 and other livestock diseases.[43]
APHIS has developed a robust emergency response strategy to combat avian influenza.[44] This response includes surveillance by Wildlife Services in wild bird populations and Veterinary Services in domestic flocks through the National Poultry Improvement Plan (NPIP).[45] Guided by the HPAI Preparedness and Response Plan, APHIS coordinates rapid actions like depopulation, disinfection, and quarantine.[46] To minimize environmental impact, it conducts assessments under NEPA and ensures proper carcass disposal.[47] As outbreaks expanded, APHIS has scaled its operations to a nationwide level, offering technical aid, indemnity payments, and federal response teams in close collaboration with state and tribal partners, demonstrating the magnitude of the effort.[48]
Beyond immediate containment and surveillance efforts, the USDA has invested heavily in long-term strategies to prevent and mitigate the ongoing spread of HPAI H5N1.[49] The agency announced a $100 million research initiative focused on developing vaccines, enhancing biosecurity protocols, and strengthening disease preparedness.[50] As part of this effort, biosecurity assessments have been conducted at over 130 commercial poultry facilities, with particular attention to the most at-risk egg-laying farms.[51]
In parallel, the USDA has increased compensation rates for affected poultry farmers and provided financial support for implementing biosecurity improvements.[52] Notably, these measures have contributed to a nearly 50% reduction in egg prices, offering some relief to both producers and consumers. The research initiative is being carried out in collaboration with agencies such as the CDC and FDA.[53]
(b) Center for Disease Control.
The CDC serves as the nation’s primary science-and data-driven organization dedicated to safeguarding public health.[54] Among its functions, the CDC leads the U.S. influenza surveillance system in collaboration with state, local, and territorial health departments.[55] This system has played a vital role in monitoring infectious diseases such as HPAI. By collecting data from public health laboratories, healthcare providers, and other sources, the surveillance network tracks influenza activity, identifies circulating viruses, detects changes in viral strains, and assesses the disease’s impact on illness, hospitalizations, and deaths.[56]
The CDC has expanded its surveillance systems to monitor individuals exposed to infected poultry, dairy cattle, and other animal species, while also providing diagnostic and laboratory support to state and local health departments through its Influenza Division.[57] In addition, the agency is leveraging its National Syndromic Surveillance Program to track flu-like illnesses and is conducting serology studies in states such as Colorado and Michigan to evaluate exposure levels among farmworkers.[58] These findings directly inform federal and state responses, guiding public health interventions such as quarantine measures and vaccine distribution efforts.
CDC has also joined forces with the USDA, FDA, the Administration for Strategic Preparedness and Response, state public health and animal health officials, and other partners to implement the One Health approach.[59] This collaborative strategy is gaining widespread recognition both in the United States and internationally, particularly for its effectiveness in addressing zoonotic diseases.[60] Through One Health, the CDC brings together experts from a range of fields—including human and animal health, environmental science, law enforcement, policymaking, agriculture, and community organizations—to monitor, control, and better understand how diseases spread among people, animals, plants, and the environment.[61] For example, specialists from the One Health Office organize Zoonotic Disease Prioritization Workshops to help countries allocate limited resources toward the most pressing zoonotic threats, such as HPAI H5N1, which poses a significant national concern.[62]
(c) The Occupational Safety and Health Administration
The Occupational Safety and Health Administration (OSHA), a federal agency within the U.S. Department of Labor established under the Occupational Safety and Health Act of 1970, plays a critical role in safeguarding workers from occupational exposure to HPAI H5N1.[63] OSHA fulfills its mission of safe and healthy working conditions by setting workplace standards and providing training, outreach, education, and assistance.[64] In response to the risks posed by HPAI H5N1, OSHA requires employers to conduct hazard analyses to identify workers at risk and implement appropriate control measures, including engineering controls, administrative practices, safe work procedures, and the use of personal protective equipment (PPE).[65] Specific PPE requirements include gloves, protective clothing, goggles, and respirators to minimize exposure to the virus.[66] Workers must also be trained to use PPE correctly, understand associated risks, and maintain hygiene practices such as regular handwashing and sanitization. Additionally, OSHA emphasizes the importance of protecting workers from heat stress associated with PPE use and ensuring the proper cleaning and disinfection of potentially contaminated areas to prevent further spread of the virus.[67]
IV. State and Local Responses to Avian Influenza Outbreaks
While federal agencies provide infrastructure and guidance, state-level policies vary widely in rigor and scope.
California remains the most proactive state, having implemented Title 8, Section 5199.1 of the California Code of Regulations to protect workers from aerosol-transmissible zoonotic diseases.[68] Through California and OSHA, the state has implemented measures requiring employers in high-risk sectors such as poultry farms, slaughterhouses, and diagnostic laboratories to provide N95 respirators, gloves, full-body protective gear, and eye protection.[69] These measures are further supported by mandatory sanitation protocols written safe work procedures, and medical monitoring for employees handling infected animals or working in quarantine zones.[70] The state also promotes workers’ rights through anti-retaliation laws, paid sick leave mandates, and workers’ compensation benefits for those who contract avian flu on the job. California’s approach exemplifies a public health and labor response that integrates occupational safety with disease containment.[71]
In New York, Governor Kathy Hochul has implemented movement restrictions and enforced live bird market closures to prevent further transmission of the virus.[72] Meanwhile, Michigan has rolled out a Highly Pathogenic Avian Influenza Dairy Surveillance Program to monitor milk samples for the H5N1 virus, with farmers receiving guidance on enhanced biosecurity practices. These state initiatives work in tandem with federal efforts, ensuring targeted protection for farmers and promoting swift containment of outbreaks.[73]
Delaware and Maryland have established a joint command structure to coordinate containment efforts, including the culling of infected birds, the enhancement of worker safety protocols, and the implementation of rigorous environmental sampling. This collaborative regional approach was particularly significant given the role of the Delmarva Peninsula as a major poultry-producing area for the eastern United States.[74] By working across state lines, Delaware and Maryland demonstrated the importance of rapid, unified action in high-risk agricultural zones to contain avian influenza outbreaks and safeguard both public health and the economy.[75]
Local agencies, like the Philadelphia Department of Public Health, are actively monitoring bird flu, coordinating with state and local health and animal health agencies to track human cases and contain the spread. The Philadelphia Department of Public Health engages in community outreach and distributes public resources to ensure affected populations are well-informed.[76]
Similarly, Georgia whose poultry industry is valued at approximately $6.9 billion, highlights the high economic stakes involved.[77] Following confirmed cases in Elbert County on January 17 and January 22, 2025, the Georgia Department of Agriculture instituted a statewide ban on poultry exhibitions, shows, swaps, meets, and sales, underscoring both the threat to commercial operations and the disruption of important cultural and economic activities.
While federal and state actors have shown urgency, the overall patchwork of occupational protections and biosecurity standards remains insufficient. California’s enforceable framework offers a scalable model for integrating public health and labor safety, but replication across states has been inconsistent. To address these disparities, the federal government should pursue a cohesive, nationally integrated strategy that includes a binding occupational health standard for zoonotic disease exposure, targeted compensation policies for affected workers, and robust coordination across CDC, USDA, OSHA, and state-level agencies. Such reforms would strengthen pandemic preparedness, reduce systemic inequities, and ensure that future outbreaks do not endanger the nation’s most vulnerable agricultural workers disproportionately.
V. Lessons from Previous Outbreaks and Policy Reform Strategies
Past public health crises, particularly the COVID-19 pandemic, have exposed significant systemic weaknesses in worker protection, emergency coordination, and economic resilience. These experiences provide essential lessons for designing more robust and adaptable response strategies to zoonotic threats like H5N1.
Strengthen Health and Safety Protocols
Occupational safety policies must move beyond voluntary guidance to protect workers in high-risk sectors such as the poultry industry. Outside California, currently the only state with a binding standard for zoonotic aerosol transmissible diseases, most protections are discretionary, leading to inconsistent implementation and avoidable risk. A mandatory federal standard is urgently needed for uniform safeguards, including access to PPE, routine health surveillance, strict sanitation protocols, and comprehensive biosecurity training. One immediate path forward is for OSHA to issue a temporary emergency standard under Section 6(c) of the Occupational Safety and Health Act, which permits rulemaking without notice and comment in cases of “grave danger.” Given the demonstrated threat of HPAI H5N1 in agricultural workplaces, such an action would create enforceable protection while long-term regulatory processes advance.
Expand Compensation and Support Systems
Federal compensation programs must be broadened to support all workers economically affected by avian influenza control measures, including those in designated control zones whose poultry flocks are not directly infected. The Healthy Poultry Assistance and Indemnification Act (HPAI Act), introduced in 2025, proposes financial compensation for producers who suffer losses due to depopulation orders.[78] Still, it does not yet include direct support for displaced workers. The bill has not been enacted; even if passed, it would still fall short of providing comprehensive relief. Workers in control zones may lose income due to suspended operations, movement restrictions, or employer cutbacks during quarantine periods—even if their specific flock remains healthy. A truly equitable policy must recognize that these workers bear economic risks imposed by disease control protocols and should receive income protection, paid quarantine leave, and access to emergency relief funds. Expanding the scope of compensation to include these at-risk workers would promote fairness, improve compliance with biosecurity measures, and reduce pressure on producers to resume operations prematurely.
Improve Coordination Between Federal, State, and Local Authorities:
While federal agencies such as the CDC and USDA have provided surveillance and policy guidance, implementing containment and communication strategies during the H5N1 outbreak has varied widely across states, exposing critical gaps in coordination.[79] For example, in Illinois, internal emails revealed confusion between public health and agriculture departments over which agency should report H5N1 cases in dairy cattle, resulting in delayed public communication.[80] In Michigan, conflicting approaches between health and agriculture officials led to inconsistent messaging regarding a second outbreak.[81] At the same time, Wisconsin’s response was initially hindered by a lack of Spanish-language communication despite the state’s predominantly Hispanic dairy workforce.[82] These incidents illustrate that while interagency collaboration exists in principle, fragmented communication protocols, unclear jurisdictional responsibilities, and insufficient localized planning still undermine the effectiveness of the national response. Strengthening coordination frameworks—not just encouraging collaboration—will be essential to ensure timely, equitable, and consistent worker protection during future zoonotic disease outbreaks.
These proposed strategies must be proactive, equity-centered, and responsive to the complex interplay between animal health, worker safety, and public health security. By institutionalizing these reforms, the U.S. can move beyond reactive containment toward a more resilient and just public health infrastructure.
[78]Healthy Poultry Assistance and Indemnification Act of 2025, S. 574, 119th Cong. (2025). As of April 2025, the Healthy Poultry Assistance and Indemnification Act (HPAI Act) has been introduced but not yet enacted. Its provisions focus on compensating producers for depopulated flocks, without addressing income protection for workers in affected control zones.
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