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In his new book, Michigan Law’s Richard Primus argues against the long-standing orthodoxy that Congress can do only what the Constitution expressly authorizes it to do—and nothing more. 

By Sharon Morioka
Michigan Law

In his new book, Michigan Law’s Richard Primus argues against the long-standing orthodoxy that Congress can do only what the Constitution expressly authorizes it to do—and nothing more. 

Over the years, Primus, the Theodore J. St. Antoine Collegiate Professor of Law, has taught his students that the 10th Amendment to the Constitution limits the powers of the federal government to those enumerated in Article 1, Section 8, or elsewhere in the Constitution. But he gradually came to question that interpretation.

Here, he discusses the arguments that he lays out in his new book, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025).

1. The title of your book is ‘The Oldest Constitutional Question.’ So what is the oldest constitutional question?

This is the issue of federalism. The basic impetus for the writing of the Constitution was the need for a more powerful national government than had previously existed. But how much more powerful and how would it work? We’ve been fighting about the answer to that question ever since.

Central to the way that constitutional lawyers think about this question is the idea that the federal government is a government of enumerated powers. That means that the Constitution affirmatively lists the things that the federal government is authorized to do and the federal government can do those things and no others. This is the opposite default rule from the one for state governments, which can do anything that isn’t affirmatively prohibited.

It is a core proposition of American constitutional law that Congress can legislate only on the basis of its enumerated powers and that that limits Congress in important ways. Also, that federalism—in the way that it’s supposed to work in our system—depends on that limitation.

My book is an explanation of why I think that all of that is wrong.

2. How did you come to question this long-standing orthodoxy?

I started to think it was wrong as I taught the material year after year in the introductory constitutional law course here at Michigan. I would spend several weeks each year teaching about federalism and enumerated powers more or less in the way that I had learned them. 

I would explain the significance of the fact that the Constitution enumerates Congressional powers, mostly in Article 1, Section 8, and that the reason there’s a list is to make the point that only what’s on the list is provided. If Congress were supposed to have legislative power in general, you wouldn’t need a long, detailed list.

And I would explain that the 10th Amendment, which is understood to state the rule, says the powers not delegated to the United States by the Constitution are reserved to the states. 

But as I taught the material each year, I came to realize that there were a lot of things that didn’t make sense in what I was saying. For example, everyone learns that Congress is limited by its enumerated powers. But you also learn by the end of your first semester in Constitutional Law that, in practice, the enumerated powers haven’t done much work to limit what Congress can actually do in a very long time.

I learned about enumerated powers as a law student, and I believed the conventional view to be correct when I started my career as a law teacher. It took me some number of years of immersion in the material to begin changing my mind.

3. Can you provide an example of how enumerated powers haven’t limited Congress? 

As I was in some of the stages of thinking about these issues, the Supreme Court in 2012 decided NFIB [National Federation of Independent Business] v. Sebelius, the first big constitutional challenge to the Affordable Care Act. 

It was all about enumerated powers—the leading argument against the Affordable Care Act was, if Congress can compel people to buy health insurance, is there anything left that the enumerated powers don’t reach? What couldn’t Congress legislate, other than the things that the Constitution affirmatively prohibits, like the establishment of a religion? And 
many people thought that if there wasn’t a clear answer to that question, it had to mean the law was unconstitutional.

That means that, on that theory, the Supreme Court came within one vote of striking down the most ambitious federal social legislation in 50 years. And it’s a bad theory. It doesn’t actually explain how federalism works. 

4. Now that you’ve formulated this argument and written this book, what is the next step? 

The perspective that I am recommending is radically at odds with the conventional perspective. So one thing that I have to do with it as a teacher is make sure that my students understand the conventional perspective, even though I think it’s wrong. That’s because if you go into a federal court and argue a case in a way that follows from what I am saying about how the Constitution actually works, you will lose your case. 

Sometimes competent legal practice requires you to say things that make no sense. But they’re the things that the law has decided are the things that you say. That’s in the short term.

In the longer term, if I can persuade people to think about the Constitution in a better way, maybe we can change what the law thinks is a sensible argument. 

That is, I think that we should understand the enumerated powers of Congress as primarily intended not to limit Congress, but to empower it.

5. You mentioned that this will require a change in perspective. Why will that need to change?

There are at least two general reasons. 

One is that there’s a long tradition in American constitutional law and political culture of being skeptical of federal governance. That attitude draws strength from the idea that it is a faithful channeling of the attitudes of the framers of the Constitution, who were skeptical of central governance. 

But I think they weren’t. They wanted a stronger federal government. That was the whole point. And this mechanism of enumerating the federal government’s powers was a way of making sure the federal government would be strong enough, not a mechanism of limiting it by negative implication.

And if we remember it that way, we can have a more positive view of what we, the American people, can accomplish at the level of national government. 

We’ve actually accomplished a lot of really important things at the level of national government. We became a superpower and the arsenal of democracy; we established Medicare, 
Medicaid, NASA, the Centers for Disease Control, and many other things that individual states could not accomplish. 

The second important change in perspective is about the difference between federalism and the separation of federal powers. 

Constitutional lawyers think of the enumeration of Congressional powers as an aspect of federalism. But it’s substantially about the separation of powers, too.

The powers of Congress were enumerated in substantial part to make clear that it was Congress, not the president, who is supposed to be doing these things. 

At a time when Congress has ceded a lot of power to the executive branch, I think that’s an important thing to reposition.

The social and legal history of Diversity, Equity and Inclusion (known today known as “DEI”) emerged from the early civil rights movements leading to the Civil Rights Act of 1964. In the late 1970s/early 1980s, America embraced the moral imperative of “affirmative action” recognizing the practice as a vital tool to eradicate historical inequities.

By A. Vince Colella

The social and legal history of Diversity, Equity and Inclusion (known today known as “DEI”) emerged from the early civil rights movements leading to the Civil Rights Act of 1964. In the late 1970s/early 1980s, America embraced the moral imperative of “affirmative action” recognizing the practice as a vital tool to eradicate historical inequities. The term “diversity” became popular in Corporate America in 1987, after an article was published by the Hudson Institute (a New York City “liberal think tank”) predicting a commercial advantage of demographic workforce changes. By the 2000s, the term DEI became synonymous with a workplace that was not only tolerant of a diverse class of workers but also embraced it!

Recent political developments

President Trump’s January 2025 Executive Orders, while not federal law, have started the domino effect of tumbling DEI initiatives in the federal workforce. By his own account, the impetus behind the president’s orders is to “restore values of individual dignity, hard work, and excellence.” Many feel that this may be a dog whistle to corporations that it is now fair game to reinstate institutional barriers to “equal” employment. While federal employees are encouraged to report their colleagues who continue to further DEI efforts, legal challenges are anticipated.

But Michigan is not budging. In response to the president’s orders, Gov. Gretchen Whitmer has issued Executive Directive 2025-1 reaffirming our state’s commitment to diversity while ensuring federal compliance. The governor’s directive makes clear that while Michigan remains committed to following federal actions, it will rail against initiatives that violate constitutional law.  

Meanwhile, the private sector remains divided, with some companies restricting DEI policies while others continue to adopt them.

The ‘not so’ quiet dismantling of civil rights protections

In 2023, the Supreme Court ruling in Students for Fair Admissions (SFFA) v. Harvard signaled a major shift in affirmative action ideology, potentially opening floodgates to erosion of civil rights protections in employment, housing, and other areas. In this decision, Justice Clarence Thomas paradoxically argued that “affirmative action imposes a stigma on minorities” suggesting that minorities are already protected under the constitutional principle that “all men are created equal.” A suggestion that has not historically been the case.  

This year, the Supreme Court will hear oral argument in Ames v. Ohio Department of Youth Services, a reverse discrimination case where a heterosexual employee alleged she was passed over for promotion in favor of a gay woman. The case tests the “background circumstances” requirement used by the Sixth Circuit, which requires plaintiffs to show either an employer’s inclination to discriminate against the majority or something “fishy” about the hiring decision.

While Ames doesn’t directly challenge DEI programs, the case carries significant implications for such initiatives. If the Supreme Court sides with Ames and eliminates the “background circumstances” requirement, it could lower the evidentiary threshold for reverse discrimination claims. The potential consequence? Companies might face more lawsuits challenging DEI policies, potentially creating a chilling effect on diversity initiatives as organizations weigh increased legal risks against their inclusion goals.

What can be gleaned from these two cases is that the U.S. Supreme Court has shown a recent trend of protecting the majority interests at the expense of minority rights.

DEI impact on discrimination lawsuits

Research on DEI initiatives’ impact on discrimination lawsuits shows mixed results. While some studies indicate companies with robust DEI policies face fewer lawsuits, others suggest these programs increase discrimination reporting by raising awareness. EEOC data reveals workplace discrimination charges have fluctuated despite widespread DEI adoption, with retaliation claims becoming more prevalent and discrimination categories expanding to include age, disability, and sexual orientation.

However, DEI policies alone cannot prevent lawsuits. It will require comprehensive programs featuring clear reporting mechanisms to resolve issues internally before legal escalation. 

The effectiveness of these initiatives in preventing litigation depends critically on senior leadership commitment, integration with core business processes, regular monitoring, quality implementation, and accessible grievance procedures.

The bottom line for employers

Should the Supreme Court rule in favor of Ames, how should companies respond? Those that value diversity in the workplace and recognize its benefits should thoughtfully consider designed policies to maintain their legal protection. Management that places a priority on employment decisions (hiring, firing, promoting, or demoting) based on legitimate business factors rather than protected characteristics will continue to have strong legal standing. Executives that consistently apply neutral policies (and maintain detailed records of its decision-making process) will remain well-positioned to defend against any discrimination claims, regardless of the Ames outcome.  

Practically speaking, employers would be wise to consider implementing an objective evaluation criterion for employment decisions, document performance-based reasons for management decisions, and educate corporate leadership about the sources of bias to provide insight into their own subconscious proclivities. Today, nearly 2/3 of all mid-size companies employ DEI initiatives with higher percentages in Fortune 500 businesses.  

Implementing sound business management practices will serve as a crucial safeguard against liability arising from discriminatory conduct.
________

A. Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.

By Judge Timothy P. Connors (Ret.)

RIGHTS
“We hold these truths to be self-evident, that all men are created equal, that they are all endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ...”

These words have resonated in our American discourse for 247 years. Through the conscious employment of capitalization, certain guideposts were established. These unalienable rights (not transferable to another; not capable of being taken away or denied) are supported by a permanent fund. The endowment is not from a preemptive creator (the); but from one of choice (their). Those 37 words in our Declaration of Independence lay the foundation for a justice system based on the recognition of rights that are equal, accessible, permanent, and resilient. But then the reality sets in.

As the history of our legal system has documented, the application of these rights has not been equal, accessible, or permanent. They may however be resilient. If we acknowledge other truths in the history of our justice system, it is possible that these unalienable rights may spring back, rebound, or return to their original form or position after being bent, compressed, or stretched. The choice is ours.

Our Declaration further asserts that when a man-made government “becomes destructive to these ends, it is the right of the people to alter or abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form.” Ironic, of course, that when it comes to the actual work of altering or abolishing, gender qualification is not necessary. Beyond irony is that one of the “facts ...

submitted to a candid world” claims “absolute tyranny” over the colonists by the colonist, and, in support of that grievance, the colonist has protected “the merciless Indian savages, whose known rule of warfare is an undistinguished destruction, of all ages, sexes and conditions.” The root of the unalienable right to “the pursuit of happiness” is land acquisition and the potential to maximize the economic profit from it. That right was for some, not all. The history of our justice system documents the long-standing protection of that root. But that is a deeper, longer, and more thoughtful discussion.

One-hundred-forty years later, a different population asserted their rights against a government founded on colonialism. The proclamation of the Irish Republic in 1916 declared “the rights of the people of Ireland to the ownership of Ireland, and to the unfettered control of Irish destinies, to be sovereign and indefeasible. The long usurpation of that right by a foreign people and government has not extinguished the right, nor can it ever be extinguished except by the destruction of the Irish people ... the Republic guarantees religious and civil liberty, equal rights, and equal opportunities of all its citizens ... oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.” The shift in focus and emphasis on equality is significant, as is the declaration of the right of sovereignty.

RELATIONSHIPS
The United States has relationships with sovereign nations both outside of our borders as well as within our borders. There are 574 federally recognized Indian tribes in the United States, each having some degree of sovereignty, depending on their relationship with the federal, state, or local government. Some of those relationships are healthier than others. The best are based on mutual respect and cultural appreciation of Indigenous sovereign nations, as opposed to cultural appropriation by those governments or its citizens.

Over 30 years ago in Michigan, then Supreme Court Chief Justice Michael Cavanagh began a relationship with our Tribal Courts. His initial words were prophetic to our neighbors: “We know we have more to learn from you than you do from us.” And so, it began. We have only scratched the surface of what we can learn. We can learn because there is a need, perhaps a necessity, that we open spaces and places for incorporating other world views and create procedures that nurture values that address areas of conflict in our communities.

RESPONSIBILITIES
Many of our Tribal Courts have implemented their traditional justice systems of Peacemaking. While Peacemaking has common ground with restorative justice, it is deeper, broader, ancient, and profound. Based on values of relationships, responsibilities, respect, and resiliency, it has greater potential for healthy resolutions than a system based on power and control, proscription, punishment, and property as the major goal.

CONCLUSION
In the end, what do any of us really need? We need to love and to be loved. We need to give and to be given to. We need to laugh and cry and laugh again. We need to see each other as human beings, desperately needing each other as we hurtle through time and space in this ship called Mother Earth. We need to see and feel the goodness and decency that exist within us and around us on this earth. We need to live in the nourishing light of dignity, see it, and acknowledge it. We need peace.
—————
The Honorable Timothy P. Connors retired on Dec. 31; he remains active as a mediator/facilitator. He was a Michigan state court judge for 34 years and founded the Washtenaw County Peacemaking Court.

What if there were a non-divisive public policy change that would save the country billions and benefit the average American worker? Well, there is one, and it is ripe for action: The enactment of legislation that restricts how Social Security Disability Benefits may be used by private insurers to “offset” their own financial obligations.

By J.J. Conway

What if there were a non-divisive public policy change that would save the country billions and benefit the average American worker? Well, there is one, and it is ripe for action: The enactment of legislation that restricts how Social Security Disability Benefits may be used by private insurers to “offset” their own financial obligations.

When most of us think of Social Security, we think of retirement benefits. The Social Security Act is a Depression-era law whose original purpose was to protect widows and children when the family’s provider died.

Over time, Social Security’s scope of coverage expanded. It became a primary retirement plan while continuing to provide death benefits to minor children. It also expanded to protect workers who became permanently disabled with the creation of the Disability Insurance Benefits program, known as SSDI.

It is this SSDI coverage that has been exploited by the disability insurance industry.

Here’s how:

The typical employee with disability insurance is often covered through their employer’s group long-term disability plan, often an ERISA-qualified plan.

If this employee becomes seriously ill or is hurt, they can file a claim with the employer’s disability insurer. When a claim is filed, the insurer sends the employee a packet of forms that includes a contract requiring them to file a claim with Social Security and simultaneously claim disability benefits from the federal government. The insurer will condition the payment of benefits on the claimant’s filing an application with Social Security and pursuing all avenues of appeal. Some insurers will even provide the disabled employee with legal representation to pursue a Social Security claim. This is done right when the claim is filed.

The problem is that, in most cases, Social Security’s legal standard of disability is much stricter than what a private disability contract requires. A private disability contract may pay a benefit if an employee cannot do their own job. Social Security requires proof of an inability to perform any job in the national economy.

So, already, the private disability insurer is forcing an employee to file a claim for benefits paid by the federal government when that same employee has a private contract of insurance. And, worse still, the insurer is requiring the filing of an SSDIB claim when the employee may not yet be eligible.

The reason for this is that the private disability insurer receives a dollar for dollar offset (or credit) for any monies paid by Social Security.

To illustrate this point, take the case of a 40-year-old female with two minor children earning $75,000 per year. If the employer’s disability contract pays her a benefit equal to 60% of her salary, she would be entitled to a monthly payment of $3,750 per month or $45,000 per year.

If she were required to apply for SSDI, and her monthly Social Security benefit was $1,600 and $750 for each of her two children, the government would be paying her $3100. If she is awarded that amount from Social Security– voila – the insurance company’s responsibility drops to $650 per month.

During the period of “own occupation” benefits, typically two years, the insurer’s $90,000 obligation drops to $15,600, and the U.S. Taxpayer is now responsible for paying the claimant $74,400, even though, in our example, the employee had private insurance.

Given the original purpose of the Social Security Act, even with its subsequent amendments, it seems inappropriate to require the U.S. Taxpayer to pay for a benefit where a person has private insurance and may not even qualify for SSDI.

There are, of course, exceptions. In the case of a seriously injured or ill person or the victim of, for example, a stroke, an early claim seeking Social Security benefits is entirely appropriate. And Social Security claimants also received Medicare benefits. So, there are other considerations. But in those cases where an individual’s illness or injury has not yet risen to the level of a permanent disability, this practice seems to benefit no one but the insurance industry.

So, what can be done?

State insurance commissioners have been ineffective at combatting this practice, so the Social Security Act or the ERISA statute could be amended and updated to curb these practices. Here are three suggested reform propositions that could be added:

1) A disability insurer could not require a disabled employee to file a claim for Social Security Disability benefits any earlier that the first 36 months of continuous disability unless the employee wishes to do so voluntarily.

2) A disability insurance company would not be permitted to take an offset for Social Security for any period where the insurer denied a claim for disability benefits; and

3) If a private disability claim in “approved” status is later terminated and then reinstated, no Social Security offset could be claimed for any period where the private contract benefits were not paid.

These are common sense reforms that would bring about real and meaningful change in the lives of the occupationally disabled worker. They would save the federal government billions in actual benefit and administrative costs.

And, as a bonus, these changes would clean up questionable claims-handling practices within the disability insurance industry.
________
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

The ongoing process of teaching and learning creates a chain of human knowledge that spans generations, Professor Michelle Adams said during an informal “blue jeans” lecture recently.

By Bob Needham
Michigan Law

The ongoing process of teaching and learning creates a chain of human knowledge that spans generations, Professor Michelle Adams said during an informal “blue jeans” lecture recently.

“The highest level of teaching is about our faith in the future,” Adams told the Michigan Law community. “It’s about the idea that one person can communicate something they’ve thought about to someone else who maybe hasn’t thought about that subject quite as much—and together, they can go into a new place. Then, at some point, the student becomes the teacher and that whole cycle repeats again.

“When we talk about teaching, we’re also talking about life—what it means to be part of the link in the great chain of learning, education, and humanity.”

Adams, the Henry M. Butzel Professor of Law, spoke as the winner of the 2024 L. Hart Wright Teaching Award—the oldest of the annual student-nominated awards presented by the Law School Student Senate. An expert on race discrimination and related subjects, Adams has taught courses on constitutional law; the First Amendment; and race, law, and history.

She recently published “The Containment: Detroit, The Supreme Court, and the Battle for Racial Justice in the North” (Macmillan, 2025). The book details the history and impact of Milliken v. Bradley, the landmark Detroit school desegregation case that effectively ended the era of Brown v. Board of Education.

As part of her lecture, Adams shared an excerpt from her book and took questions from students in the audience. The core of the talk, though, was five lessons she has learned in her work.

Lesson one: The 10,000 hour rule is actually true.

“I’m a much, much, better teacher today than I was that very first semester, and it isn’t because I know more law—although I do—it’s because I’ve gone through countless hours of study and repetition on how law students receive information, what questions they are likely to ask, and how to successfully manage the classroom,” Adams said.

“But more than that, I now have a sense of the deep structure of constitutional law. I get how the pieces fit together, and that’s different from just knowing a lot of doctrine. When you marry the thousands of hours I’ve spent teaching to the thousands of hours I’ve spent studying constitutional law, you begin to reach true mastery in terms of performance in the classroom. I don’t know that I’m ever going to get there, but I’m a lot closer than I was in the fall of 1995.”

Lesson two: See lesson one.

Adams noted that it took her 12 years to write her book, and if she had known that going in, she might not have ever started.

Along the way, she had to learn a number of new skills, such as interviewing and demography.

“If you get to a point in your practice—or whatever it is you want to do with respect to what you’re trying to master—and you get frustrated, do not give up,” she said. “Keep going. You’ll get there. It just might take you a little bit longer than you thought.”

Lesson three: Anger is a distraction.

Adams related how during the research for her book, she found herself getting angry at the historical words of a Detroit preacher and activist named Albert Cleage, who was an advocate for Black nationalism in the 1960s.

Reading his words that were critical of the Black middle class, Adams said she realized, “The minister was talking about my parents. They were proud members of the Black middle class. What did this guy know about that?”

Yet, she said that continuing to think about his words opened up a whole new perspective: that her story was set against the backdrop of two modes of Black political thought—integration and black nationalism. “If I’d stayed in my feelings, in my anger, it would’ve distracted me from the real work of the project.”

Lesson four: Empathy is not the same thing as agreement.

Cleage’s story also led to the next lesson, Adams said. As she learned more about his life and the experiences of others like him, she came to understand him, even though she still didn’t agree with his politics.

“I used those insights and applied them to other characters in my book. I applied the same kind of empathy to the white characters in my book, and that allowed me to be able to think about the idea of making choices under systematic constraints,” she said.

“Did many whites behave badly during this period, roughly ’68 to ’74? Yes, they did, and I have the receipts to prove it,” Adams said. “But empathy allowed me to discover and tell the stories that you probably don’t know—about Maxine Rose and some of the other white folks in the suburbs, not an extraordinary number, but some who were trying to figure out a way to build bridges with Black parents in the city of Detroit.”

Lesson five: Brown v. Board of Education’s promise in the civil rights movement itself was about democracy.

“My book is about this great American story, one that we’re still telling today, still fighting about today, still struggling over today,” Adams said. She noted that her favorite figures in the book are “the democracy-loving, coalition-building, work-within-the-system guys,” including Roy Wilkins, a former head of the NAACP; Remus Robinson, the first Black member of the Detroit School Board; and Black judges such as Thurgood Marshall, Damon Keith, and Harry Edwards, ’65.

“Some of them risked their lives, they sat in, they advocated, they protested, they litigated cases in Southern Jim Crow courts, they went undercover in the South to protect the rights of Black workers there. They put their bodies on the line,” she said.

“As they aged, they changed their tactics but not their belief in this nation and our democracy. ... Collectively, they were fighting for Black citizenship and the citizenship rights of all Americans.
“And that, as I discovered through my research, was at the core of the promise of Brown v. Board of Education.”

There has been significant buzz around the progression of legislation aimed at restricting minors’ use of social media. This trend has been ongoing for years but continues to face resistance.
This is largely due to strong arguments that all-out bans on social media use not only infringe on a minor’s First Amendment rights but, in many cases, also create an environment that allows for the violation of that minor’s privacy.

By Bhashit  Shah & Marisa  McConnell
Varnum

There has been significant buzz around the progression of legislation aimed at restricting minors’ use of social media. This trend has been ongoing for years but continues to face resistance.

This is largely due to strong arguments that all-out bans on social media use not only infringe on a minor’s First Amendment rights but, in many cases, also create an environment that allows for the violation of that minor’s privacy.

Although companies subject to these laws must be wary of the potential ramifications and challenges if such legislation is enacted, these concerns should be integrated into product development rather than driving business decisions.

Design-Code Laws

A parallel trend emerging in children’s privacy is an influx in legislation aimed at mandating companies to proactively consider the best interest of minors as they design their websites (Design-Code Laws). These Design-Code Laws would require companies to implement and maintain controls to minimize harms that minors could face using their offerings.

At the federal level, although not exclusively a Design-Code Law, the Kids Online Safety Act (KOSA) included similar elements, and like those proposed bills, placed the responsibility on covered platforms to protect children from potential harms arising from their offerings. Specifically, KOSA introduced the concept of “duty of care,” wherein covered platforms would be required to act in the best interests of minors under 18 and protect them from online harms. Additionally, KOSA would require covered platforms to adhere to multiple design requirements, including enabling default safeguard settings for minors and providing parents with tools to manage and monitor their children’s online activity. Although the bill has seemed to slow as supporters try to account for prospective challenges in each subsequent draft of the law, the bill remains active and has received renewed support from members of the current administration.

At the state level, there is more activity around Design-Code Laws, with both California and Maryland enacting legislation. California’s law, which was enacted in 2022, has yet to go into effect and continues to face opposition largely centered around the law’s alleged violation of the First Amendment. Similarly, Maryland’s 2024 law is currently being challenged. Nonetheless, seven other states (Illinois, Nebraska, New Mexico, Michigan, Minnesota, South Carolina and Vermont) have introduced similar Design-Code Laws, each taking into consideration challenges that other states have faced and attempting to further tailor the language to withstand those challenges while still addressing the core issue of protecting minors online.

Why Does This Matter?

While opposition to laws banning social media use for minors has demonstrated success in the bright line rule restricting social media use, Design-Code Laws not only have stronger support, but they will also likely continue to evolve to withstand challenges over time. Although it’s unclear exactly where the Design-Code Laws will end up (which states will enact them, which will withstand challenges and what the core elements of the laws that withstand challenges will be), the following trends are clear:

There is a desire to regulate how companies collect data from or target their offerings to minors in order to protect this audience.

The scope of the Design-Code Laws often does not stop at social media companies, rather, the law is intended to regulate those companies that provide an online offering that is likely to be accessed by children under the age of 18. Given the nature and accessibility of the web, many more companies will be within the scope of this law than the hotly contested laws banning social media use.

These laws bring the issue of conducting data privacy impact assessments (DPIAs) to the forefront.

Already mandated by various state and international data protection laws, DPIA requirements compel companies to establish processes to proactively identify, assess and mitigate risks associated with processing personal information.

Companies dealing with minor data in these jurisdictions will need to:

• Create a DPIA process if they do not have one

• Build in additional time in their product development cycle to conduct a DPIA and address the findings.

• Consider how to treat product roll-out in jurisdictions that do not have the same stringent requirements as those that have implemented Design-Code Laws.

As attention to children’s privacy continues to escalate, particularly on the state level, companies must continue to be vigilant and proactive in how they address these concerns. Although the enactment of these laws may seem far off with continued challenges, the emerging trends are clear. Proactively creating processes will mitigate the effects these laws may have on existing offerings and will also allow a company to slowly build out processes that are both effective and minimize the burden on the business.

Varnum partner Bhashit (Sheek) Shah advises clients on data privacy best practices and regulatory compliance. With experience in global privacy frameworks and laws including GDPR, CCPA and COPPA, he helps businesses build and implement compliance programs and manage data breaches.

Associate Marisa K. McConnell focuses on litigation and data privacy, with a focus on children’s privacy issues, regulatory and compliance challenges in the mobility sector, commercial business disputes and general litigation matters.