02/10/2016

Ilan Wurman and Christopher Walker on the Administrative State
Michael Ramsey

At Liberty Law Forum, Ilan Wurman: A Modest Proposal for Reforming the Administrative State.  From the core of the argument:

Constitutional conservatives [in addressing the administrative state] have offered only variations on one theme: restore a proper non-delegation doctrine, thereby reserving to the Congress the legislative power and ensuring that the administration exercises only executive, and not also legislative (or judicial), power. What this solution amounts to is a call to do away with the entire administrative state. As much as we may wish for this to happen in a first-best world, we live in no such world. Politics should always be, and can only be, aimed at the best practical regime.

Let us propose something different. To accept the reality of the administrative state, we must accept the reality of legislative delegation. Does it follow that we must also accept the serious blow modern administration deals to the separation of powers? I do not believe it does. Indeed, by accepting delegation, I contend that we not only will recover a large measure of separation of powers, but we can also mitigate the harms to republicanism from delegation itself.

Let us imagine what would happen were we to accept as a matter of doctrine what is already true as a matter of reality. Let us accept that Congress delegates power to agencies. What follows from that acceptance? By accepting delegation, we can recognize that the administration exercises not only executive, but also legislative and judicial, power. That recognition then allows us to reframe the separation of powers question from who exercises power in the first instance—the constitutional branches of government, or the agencies?—to who controls the exercise of that power by the agencies.

And in conclusion:

I confess that, when reading modern administrative law cases, I often feel torn. On the one hand, the formalism of modern doctrine tends to ensure rule-of-law values and certainty, and is more faithful to the constitutional text on the surface than is functionalism. On the other hand, there can be no doubt that had the Framers conceived of the modern administrative state, they would be aghast at the power of the executive branch. Thus, even those who have recognized that certain functionalist tools might be unconstitutional as originally understood argue that such tools ought to be permitted to balance the accretion of power in the executive. There is something incredibly compelling about Justice Byron White’s functionalist vision for administrative law in his Chadha dissent. It is not quite what the constitutional text says, but it looks a lot more like what the text may have been intended to create than the majority’s formalist vision.

Constitutional administration advances this debate between formalists and functionalists in the context of separation of powers and the administrative state. Formalism only requires an accretion of tremendous power in the executive branch if we accept the fiction that Congress does not delegate legislative power and thus that its agents in the executive are always exercising executive power. Once we recognize and permit delegation, we can apply formalist reasoning to achieve what were originally functionalist results in many separation-of-powers cases. A formalist, for example, would permit a legislative veto of agency rulemaking, thereby reserving significantly more power to Congress than it currently enjoys.

If modern doctrine reflected these insights, many constitutional conservatives would breathe more easily when contemplating the administrative state. Functionalists who seek more accommodation between Congress and the President than current doctrine allows also ought to breathe more easily. The administrative state, if it looks unconstitutional at all, would suddenly look a lot less unconstitutional. The activities and powers of each branch of government would be closer to their intended original operation. Congress would have more power over legislative matters, the President over executive matters, and the courts over judicial matters.

Progress can be made. We need only accept a de facto precedent—the actual delegation of legislative power to agencies—that we have refused to acknowledge for several decades. We need only reorient our thinking on delegation.

Christopher Walker (Ohio State) comments: (Incrementally) Toward a More Libertarian Bureaucracy.  From the introduction:

In contrast to Justice Thomas’s call to reinvigorate the nondelegation doctrine, Wurman proposes that “we must accept the reality of legislative delegation” and then rework a number of other administrative law doctrines, such as reviving the legislative veto and shifting to plenary review of certain agency adjudications. Wurman’s proposal is reminiscent of Kathryn Watts’ recent proposal that we accept Rulemaking as Legislating—though her approach to abandoning nondelegation arguably leads to an administrative state that Wurman would not embrace. (I previously expressed skepticism about the Watts proposal here—much of which I’d apply to Wurman’s  as well.)

The Watts and Wurman approaches are bold and sweeping, and neither is likely to be embraced by the Supreme Court or by Congress. My response to Wurman thus focuses on a number of incremental and, I believe, more realistic reforms that would move us toward a more libertarian administrative state. They are by no means exhaustive; what they do is illustrate the types of liberty-enhancing measures we could plausibly pursue via legislative, judicial, or even executive action.

02/09/2016

United States v. Texas and the Take Care Clause (Updated)
Michael Ramsey

SCOTUSblog is hosting a symposium on United States v. Texas (the immigration enforcement case); here are the opening contributions:

Jay Sekulow: Constitutional limits of presidential power – changing the law or enforcing it (addressing the take care clause).

Anne Egeler: Unable to show harm, can Texas employ the Court as a political referee? (addressing standing, which seems to me to put Justice Scalia in a  tough spot).

Here are my thoughts on the take care clause issue (somewhat solidified from prior posts):

(1)  Principally, this is a statutory interpretation case: do the immigration laws give the President authority to launch the DACA and DAPA programs?  It is not clear how the take care clause adds anything to the statutory argument.  Either the laws convey authority or they don't.

(2)  The President argues that the laws give him the authority he needs.  If that's right, then the case is over.  If he's wrong, then he's wrong about the meaning of the statute.  This is not a constitutional violation (as long as he's making the argument in good faith).  Statutes are often unclear, and courts may reach different conclusions from Presidents.  Calling this a take care violation would convert every presidential misreading of a statute into constitutional misfeasance.  But part of faithfully executing a statute is making a good faith -- though possibly incorrect -- assessment of what it means (or, perhaps, what courts are going to say it means).

(3) So what does the take care clause add? I think it relates to a different argument that the President may or may not make.  Suppose the statute does not authorize the programs under challenge.  Is the case over?  Maybe not.  The President could argue that, even without statutory authorization, he has constitutional authority to manage the enforcement of the law as an aspect of prosecutorial discretion, which in turn is part of the President's Article II, Section 1 executive power.  The response to that argument is the take care clause: although the President surely has prosecutorial discretion, he must exercise it consistent with his obligation to faithfully execute the law (whatever that is).  Perhaps he is not doing so here.

(4) It's not clear whether the President is actually going to make this argument, or rely only on the statute.  But in any event, in my view the President cannot make this argument for a different reason.  As I understand the challenged programs, they are not exercises in prosecutorial discretion, in the sense of merely declining to enforce the law.  Rather, they purport to change the legal status of the persons affected.  That's fine if a statute delegates to the President power to change a person's legal status.  But it is not something the President can do on his own (other than through an exercise of the pardon power), because it is an act of lawmaking, and all lawmaking power is vested in Congress.  This isn't a consequence of the take care clause; it's a consequence of basic separation of powers.

In sum, prosecutorial discretion is purely a negative power -- the power not to act against lawbreakers under some circumstances.  If the President is claiming an affirmative power to act with respect to affected persons, that power must come from a statute.  The take care clause isn't really material to this proposition.  So I'm skeptical that the Court will need to get into the difficult question of what the clause means.

(Of course, all this assumes there is standing, which there might not be).

UPDATE:  Further posts from the symposium:

Brianne Gorod: Why it’s time to unfreeze DAPA (arguing that the President is "exercising the substantial discretion Congress has conferred on the executive branch" by statute).

Dan Stein: Why United States v. Texas is the most important case the Court will decide this year (arguing that the issue is whether "the president has the power to nullify laws enacted by the legislative branch by simply refusing to enforce them or, as President Obama is attempting to do, by substituting his own policies and programs in their place").

02/08/2016

Randy Barnett on Jack Balkin and Laurence Tribe on Natural Born Citizens
Michael Ramsey

From Randy Barnett at Volokh Conspiracy: Tribe v. Balkin on whether Ted Cruz is a “natural born citizen”.  It begins:

Yesterday, the Harvard Law School chapter of the Federalist Society held a wonderful debate between Harvard law professor Laurence Tribe and Yale law professor Jack Balkin on whether Ted Cruz is a “natural born citizen” and therefore eligible to be president under the Constitution. (Like Balkin and Cruz, Tribe was also my constitutional law professor.)  Tribe says the issue is “not settled” but he also offers an argument against Cruz qualifying. For his part, Balkin makes what I think is the strongest originalist argument for why Cruz does qualify (which Michael Ramsey presents here).

The debate is noteworthy not only for its cordiality and high level of discourse, but also because of its discussion of originalism. Larry is clearly relishing the opportunity to skewer Cruz and others for being what he calls “fair-weather originalists.” At this point, I suspect he also does not mind undermining Cruz’s campaign. For his part, Jack offers a very sensitive account of originalism, including both his very thin “living originalism” and other thicker versions of original public meaning originalism. Importantly, Jack does not rest his argument on his thin version, but contends — I believe rightly — that any form of originalist can accept his (and Ramsey’s) analysis.

...

Further along, he comments:

Moreover, the only reason this issue is at all debatable is because there is a colorable originalist argument that Cruz is not a natural born citizen. Absent such an argument, his eligibility would not be questioned on living constitutionalist grounds. This underscores, I think, the inherent power of originalism, and undercuts Tribe’s effort to capitalize on this debate to deprecate originalism.  [I agree].

(YouTube video at the end of the post.)

Related: Einer Elhauge takes the anti-Cruz position at Salon, concluding

The contrary position also has two difficulties.  It defines a “natural-born citizen” to mean anyone who Congress has defined to be a citizen at birth; that is, anyone born a citizen.  This effectively reads the word “natural” out of “natural born citizen.”  It also means Congress can by statute change the constitutional limit on who can run for president, when the whole point of constitutional limits is typically that Congress cannot change them.

In short, both textualism and originalism cut strongly against Cruz being a natural-born citizen.  Some argue that living theories of constitutional interpretation cut in favor of Cruz, but even living theories start with text and history, and it is not clear why the principle animating the clause would merit a different conclusion in current times.  Presumably modern equal protection norms would bar a sexist rule that said children born abroad with one U.S. parent were natural born only if that parent were a man.  But that is no argument against the interpretation that persons are natural born citizens only if born in a U.S. territory or to a parent serving the U.S. abroad.

The last sentence seems to be a complete non sequitur, apparently trying to create a tenable difference between Cruz and John McCain.  But there is no historical or textual support for the proposition that one can be "natural born" if born overseas to parents in government service but not otherwise.  It's true the children of foreign-serving diplomats were considered natural born, even under common law, but other forms of service did not qualify.  And statutory extensions of natural born status to persons born to subjects/citizens abroad did not depend on whether the parents were in government service.

02/07/2016

Adam Samaha: On Sequencing Effects in Statutory Interpretation and Beyond
Michael Ramsey

Adam M. Samaha (New York University School of Law) has posted Starting with the Text — On Sequencing Effects in Statutory Interpretation and Beyond (The Journal of Legal Analysis, Vol. 08, 2016, forthcoming) on SSRN.  Here is the abstract:      

What difference do starting points make? The question is important for decision making in general and for law in particular, including the interpretation of statutes. Judges must begin the interpretive process somewhere. Today, Supreme Court opinions sometimes promote the idea of starting with the text of the statute at issue. But what does this mean, in practice, and does it matter to decisions? “Start with the text” could be a signal of allegiance to an interpretive school and an indication that some interpretive tools are more important than or even lexically superior to others. At present, however, the statement delivers neither of those messages well. Instead, we might think about the statement as a rule for sequencing sources. Although the mere sequence in which information is considered does not have any clear logical significance for case results, the idea of starting with statutory text can become almost unnervingly significant — and without adding lexical priority.

Decades of studies show that the order in which information is presented can influence decisions, apart from what formal logic dictates. But the direction of order effects can be counterintuitive and sensitive to the decision environment, which suggests complications for a “start with the text” sequencing rule. Depending on several factors, the first item of information will matter most, the last item will matter most, or there will be no order effect. Furthermore, even if order effects are predicted accurately, some psychological mechanisms that produce order effects are normatively problematic for judicial use. Finally, an effective sequencing rule requires an implementation strategy with a foundation far away from standard theorizing about interpretive method. Foregrounding implementation issues and the real world of interpretive architecture suggests that, if judges want to harness order effects, they probably should turn to the most important sources last, not first.

(Via Larry Solum at Legal Theory Blog, where it is the "Download of the Week").

02/06/2016

 Glenn Reynolds: Second Amendment Limitations
Michael Ramsey

Glenn Harlan Reynolds (University of Tennessee College of Law) has posted Second Amendment Limitations (Georgetown Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:     

This paper looks at recent cases that suggest that the so-called "Heller Safe Harbor," allowing limitations on gun ownership and possession in some circumstances, is facing additional scrutiny from lower courts, with previously accepted gun restrictions being struck down or limited. It also looks at future changes in limitations on Second Amendment Rights. Paper presented at a Georgetown Law School symposium in November, 2015, to be published in the Georgetown Journal of Law and Public Policy.

Related: At Volokh Conspiracy, David Kopel on the recent Fourth Circuit decision in Kolbe v. Hogan:

The statute bans the sale of firearm magazines that hold more than 10 rounds and also bans many firearms, by labeling them as “assault weapons.” In a 2-1 decision written by Chief Judge Traxler, the Fourth Circuit held that strict scrutiny is the proper standard of review for bans on common arms, such as those at issue in Kolbe. The case was remanded to the district court, which had applied the wrong standard, namely a weak version of intermediate scrutiny. The Maryland attorney general announced that he will seek en banc or Supreme Court reversal of the Kolbe decision.

02/05/2016

Marc DeGirolami on Originalism, Tradition and Noel Canning
Michael Ramsey

At Liberty Law Blog, Marc DeGirolami: Comparing Traditionalism and Originalism II.  From the introduction:

In my last post, I explored the interpretive method of the majority opinion in Town of Greece v. Galloway, describing it as traditionalist though with interesting connections to certain strands of originalism. In this post, I’ll take a look at another traditionalist decision, NLRB v. Noel Canning. As with the post on Town of Greece, the object is simply to individuate the opinion as distinctively traditionalist, not to defend it.

 First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.

Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.

As to Noel Canning, Professor DeGirolami continues:

The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached.”

The relationship of originalism and traditionalism in Noel Canning is complicated. The majority opinion takes particular pains to note that the phrase “the Recess” is ambiguous; Breyer says that it isn’t clear whether the clause applies to intra-session appointments as well as inter-session appointments. If this proposition is accepted (a big if), then it is possible to say that originalism and traditionalism coexist in Noel Canning: the Court is authorized to engage in “broader interpretation” only because it first finds that the text is not decisive. Originalism continues to enjoy what some scholars have described as “lexical priority.” Of course, one might question that conclusion (as Justice Scalia did in his concurrence), and one might even wonder in a more cynical vein whether a judge inclined toward “broader interpretation” will find his way to it one way or the other.

But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism? ...

I thought I might disagree with his account, but I don't: the ensuing description is insightful, and seems (partly reading between the lines) somewhat critical of the Noel Canning decision.  I also think it is very useful to describe traditionalism as an alternative to both originalism and living constitutionalism.  However, for some reservations I have about the broad use of arguments from tradition, see here.

 

02/04/2016

Wyatt Sassman: Applying Originalism
Michael Ramsey

In the current issue of the UCLA Law Review Discourse, Wyatt G. Sassman: Applying Originalism (63 UCLA L. Rev. Disc. 154 (2015)).  Here is the introduction:

On November 17th, 2014, Harvard Law School presented the inaugural Justice Antonin Scalia Lecture. As Dean Martha Minow of Harvard Law School, explained, an anonymous donor endowed the lecture “to promote and advance understanding of the founding principles and core doctrines of the United States Constitution.” Judge Frank H. Easterbrook presented the first lecture, titled “Interpreting the Unwritten Constitution.”  A close friend and ideological colleague of Justice Scalia, Judge Easterbrook presented a concise yet comprehensive explanation of originalism as a theory of judicial authority. This is a review of that lecture.

Reviewing this lecture presents an opportunity to capture originalism in the middle of an important change. Most modern originalists accept that the meaning of text can change over time. As a result, many are abandoning strict reliance on text and, in exchange, some are seeking structural measures of original intent. Easterbrook’s lecture is an example of this shift. It offers a way to make substantive constitutional decisions based on the Framers’ original view of the separation of powers as inferred from the text, rather than based on the original meaning of any specific constitutional provision.

Perhaps because it is exemplary, his approach presents problems, both new and old. I identify two in particular. First, Easterbrook’s argument still does not account for constitutionalized individual rights, or how a judge applying his approach should handle precedent enshrining those individual rights. This has been a persistent problem for originalists of all stripes. Second, and more fundamentally, Easterbrook’s approach doesn’t appear to be originalism anymore. As originalists depart from text, they depart altogether from original intent. Easterbrook’s application of his ideas to three unwritten constitutional doctrines—the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines—drives this point home, illustrating that the Framer’s original intent about the content of any doctrine, even doctrines that existed in the Framer’s times, matters very little to the judicially active, majoritarian approach offered by Easterbrook in this lecture.

But maybe originalism will benefit from this change of character. Easterbrook’s approach, by departing from text and original intent, justifies its substantive doctrinal goals with reasoning similar to other modern approaches to constitutional interpretation—reasoning about whether something is a good or desirable way to govern given the modern expediencies of American society. In contrast to the no compromises approach originalists have taken for many years, Easterbrook’s approach signals originalism’s move toward a more forward looking, participatory role in ongoing debates about the Constitution, the courts, and modern republican democracy.

Part I of this review presents Judge Easterbrook’s clear yet careful explanation of a modern originalist approach to judicial review. Part II offers two criticisms of this approach, noting that Easterbrook’s originalism still does not account for individual rights and generally doesn’t seem to be originalism at all. Part III elaborates on this second criticism, using Easterbrook’s discussion of the intergovernmental tax immunity, anticommandeering, and sovereign immunity doctrines to show how little original intent has to do with Easterbrook’s approach to the content and substantive application of a particular doctrine. Finally, I conclude with my view that this change may give originalists common ground with other modern, relativist approaches to the Constitution and foster discourse rather than further entrench competing theorists.

And here is a link to the video of Judge Easterbrook's lecture.

02/03/2016

Michael Morley: Reverse Nullification and Executive Discretion
Michael Ramsey

Michael T. Morley (Barry University School of Law) has posted Reverse Nullification and Executive Discretion (University of Pennsylvania Journal of Constitutional Law, Vol. 17, 2015) on SSRN.  Here is the abstract:     

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions. Such a broad application of obstacle and field preemption is inconsistent with the text and original understanding of the Supremacy Clause and unnecessarily aggrandizes the practical extent of executive authority. The Supremacy Clause prohibits states from attempting to nullify or ignore federal laws that they believe are unconstitutional or unwise. It should not bar states from engaging in “reverse nullification” by enacting statutes that mirror federal law to ameliorate the effects of executive under- or non-enforcement. Far from undermining the “law of the land,” reverse nullification reinforces it by ensuring that the President cannot effectively amend or nullify federal law by declining to enforce it. The Court should craft an exception to its obstacle and field preemption doctrines to accommodate reverse nullification, and Congress should generally include an exception permitting reverse nullification in statutes’ express preemption provisions.

I completely agree.  Even if one accepts obstacle and field preemption as an original matter, parallel state enforcement is not an obstacle to the federal law.  It may well be an obstacle to the President's decision not to enforce the federal law (as in Arizona v. U.S.), but the President's decision (even if constitutional) is not supreme law of the land, and hence is not preemptive.  I have long thought this (see here and here [with thoughts from John Eastman]); Professor Morley's article expresses and defends it much better than I have been able to.

02/02/2016

Greg Weiner on United States v. Texas
Michael Ramsey

At Liberty Law Blog, Greg Weiner: A Time for Congressional Hardball.  From the introduction:

The fundamental constitutional question presented by the case of United States v. Texas is not whether the President is constitutionally required to enforce immigration laws (he is), but whether the Supreme Court is constitutionally empowered to police every constitutional dispute. If it decides to do the work of Congress and restrain the executive, it will, more than it did in Cooper v. Aaron (1958), proclaim a doctrine of judicial supremacy over constitutional questions. 

And in conclusion:

It is a myth, and one that far more partakes of a Brennan than a Bork, to suggest that every case demands the finality of a judicial decree. In United States v. Texas, the Court could simply observe that it is being asked to intervene in a dispute not between the state of Texas and the federal government but between the executive and legislature. Consequently, the states have no standing. The Court has no responsibility. Congress does. It should emerge from behind the judicial robes and exercise it.

It may become important to know what Justice Scalia thinks of this argument.

02/01/2016

Marc DeGirolami on Traditionalism and Originalism
Michael Ramsey

At Liberty Law Blog, Marc DeGirolami: Comparing Traditionalism and Originalism.  From the introduction:

In my first post of this series on law and tradition, I said that though a judicial opinion might exhibit both originalist and traditionalist features, these are nevertheless distinct interpretive categories. In this post and the next, I will briefly explore the similarities and differences in two opinions decided by the Supreme Court in 2014—Town of Greece v. Galloway and NLRB v. Noel Canning—both of which are traditionalist but not (necessarily) originalist in method (though Town of Greece is complicated). My claim is not that these decisions are correct; only that each exhibits a distinctive interpretive approach that is intentional about maintaining coherence and continuity with very long-standing patterns of legal and cultural practices and that each determines constitutional meaning primarily on the basis of practices rather than principles.

And from later in the post:

... [T]he traditionalist is more focused on practices than meanings when it comes to constitutional interpretation. Or perhaps it is better to say that the traditionalist believes that the meaning of text—particularly as to text that is itself abstract—is far better determined and understood by recourse to concrete practices than by recourse to still other abstract principles.

Here there may be some further overlap between traditionalism and those sub-varieties of public meaning originalism that are receptive to discerning meaning from practices and customs. Professors John McGinnis and Michael Rappaport have written favorably about this interpretive approach in this paper. Professor Ramsey puts the point well from the originalist perspective: “If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y.” For the traditionalist, practices (not principles) are not “merely evidence” or “some evidence” or even “strong evidence” of meaning. Meaning is constituted by practices. The endurance of those practices and the degree of their social acceptance—before, during, and after textual ratification—are also constituents of meaning. None of this implies that these are the only constituents. Neither does it imply that new practices cannot be enfolded into existing meanings. That the founders did not know about email or the Internet, for example, does not mean, on the traditionalist view, that the Fourth Amendment cannot apply to those new media today. But practices that were familiar; widespread; continuous before, during and after the founding; and constitutionally unobjectionable offer more than “evidence” of the meaning of the Establishment Clause. For the traditionalist, they are themselves part of that meaning.

A very interesting post with which I entirely agree.  A future post promises to consider the Noel Canning decision from this perspective.  (I may not agree with that one).

01/31/2016

Michael Glennon & Robert Sloane: The Sad, Quiet Death of Missouri v. Holland
Michael Ramsey

Michael J. Glennon (Tufts University - The Fletcher School of Law and Diplomacy) and Robert D. Sloane (Boston University - School of Law) have posted The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power (Yale Journal of International Law, Vol. 41, No. 2, Page 51, 2015) on SSRN.  Here is the abstract:   

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation.

My take on Bond is here.  I sort of agree with this paper and sort of don't.  On one hand, I agree that there is a structural problem with allowing the U.S. to enter into treaties which it can't enforce domestically.  (Although, that problem can be solved with a self-executing treaty, which makes this issue less important than internationalist writers seem to think it is).  I think it's right that the implementing power should go to the full extent of the treatymaking power, and that Bond, to the extent it suggests otherwise, is mistaken.  On the other hand, as I argue in my paper, I think federalism implies two interpretive guidelines in evaluating both treaties and their implementing legislation.  One of those is that the treaty should not be read to override federalism values if it is ambiguous.  So while I agree that the treaty and the implementing legislation should be read in parallel, I conclude from this proposition not that federalism should be ignored in interpreting the implementing legislation, but that it should be used in interpreting the treaty.

 

01/30/2016

Curtis Bradley & Neil Siegel: Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) and Neil Siegel (Duke University School of Law) have posted Historical Gloss, Constitutional Conventions, and the Judicial Separation of Powers on SSRN.  Here is the abstract:   

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

Via Balkinization.

01/29/2016

Daniel Rice: The Riddle of Ruth Bryan Owen
Michael Ramsey

Daniel B. Rice (Duke University School of Law '15) has posted The Riddle of Ruth Bryan Owen on SSRN.  Here is the abstract:

This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan, and a pioneering figure in her own right. But the Expatriation Act of 1907 stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Yet Owen’s defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. Because Owen had been a naturalized citizen for only three years at the time of her 1928 election, the House faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?

Owen’s case demonstrates that the perceived clarity of even “mathematical” constitutional provisions can be shaped by purposive and pragmatic considerations extraneous to the text, considerations that often change in light of freshly received facts. This Article also presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination soon after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for modern sex-discrimination doctrine. And as Owen’s case shows, historical practices repugnant to the modern constitutional order should never be accorded residual legal effect. This Article accordingly criticizes the Supreme Court’s plurality opinion in Kerry v. Din (2015) for citing the Expatriation Act to downplay an asserted liberty interest’s historical pedigree under the Due Process Clause.

Via Larry Solum at Legal Theory Blog, who says "Wonderful and fascinating.  Highly recommended.  Download it while it's hot!" and adds a interesting extended discussion of the seven-year citizenship requirement.  

My view, for what it's worth, is that the seven-year requirement means -- fairly clearly -- seven years immediately prior to being elected.  Otherwise, what's the point of the requirement?  It would be absurd to say that a person who was a U.S. citizen for seven years in the distant past (say, from birth to age seven), having become the citizen of another country and renounced U.S. citizenship, should nonetheless be eligible.  Since the possible textual meanings are "seven years immediately prior" and "any seven years," and the latter is absurd, the former is the answer.

Note: Daniel Rice is also the author of a great student note, as discussed here and here.

01/28/2016

Linda Greenhouse on Friedrichs v. CTA and 'Scalia's Putsch'
Michael Ramsey

In The New York Times, Linda Greenhouse: Scalia’s Putsch at the Supreme Court.  She's upset that the Court appears likely to overrule a prior decision:

On June 30, four days after handing down the marriage decision, Obergefell v. Hodges, the court announced that it would hear a major challenge to the future of public-employee labor unions. That case, Friedrichs v. California Teachers Association, was argued last week. As was widely reported, the outcome appears foreordained: the court will vote 5 to 4 to overturn a precedent that for 39 years has permitted public-employee unions to charge nonmembers a “fair-share” fee representing the portion of union dues that go to representing all employees in collective bargaining and grievance proceedings. As the exclusive bargaining agent, a union has a legal duty to represent everyone in the unit, whether members or not; the fee addresses the problem of “free riders” and the resentment engendered by those who accept the union’s help while letting their fellow workers foot the bill.

...

I want to focus here, however, not on the implications the Friedrichs case holds for the public workplace, but on what it means for the Supreme Court. Actually, I couldn’t express my concern better than Justice Stephen G. Breyer did last week when he questioned Michael A. Carvin, the lawyer for the 10 California teachers who are challenging the state’s labor law. ...

01/27/2016

Marcin Matczak: Does Legal Interpretation Need Paul Grice?
Michael Ramsey

Marcin Matczak (Warsaw University - Faculty of Law and Public Administration; Warsaw University - Legal Philosophy) has posted Does Legal Interpretation Need Paul Grice? Reflections on Lepore and Stone's Imagination and Convention on SSRN.  Here is the abstract:    

By significantly diminishing the role intentions play in communication, in Imagination and Convention (2015) Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the non-intentionalist camp, which make them unique in the contemporary philosophy of language. 

In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, is more suitable to the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute. The number of contributions makes the identification of individual intentions impossible, which makes legal language badly suited to a Gricean, intention-based analysis. Thus, Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language. 

In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism”. In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.

Via (of course) Larry Solum at Legal Theory Blog.

01/26/2016

More on Texas v. U.S. and Taking Care
Michael Ramsey

Contrary to this post, a number of commentators see the "take care" issue in Texas v. United States as a big one.

In the Washington Post, Fred Barbash (Morning Mix), President or king? Translated, that’s what the Supreme Court is asking about Obama.

In The Atlantic, Garrett Epps, Will the U.S. Supreme Court Tell Obama to 'Take Care'? (although he has a pretty plausible explanation of what is going on at the end).

Rick Hills at Prawsfsblawg:  "Affirmative" Benefits versus "Negative" Non-Prosecution: May the President Provide Former When It's Necessary & Proper for the Latter? (with an interesting back-and-forth with Marty Lederman in the comments)

 

I had this thought:  Most people have seen the Court's adding of a new question on the take care clause as implying a negative view of the administration's action (that is, that it is not only unauthorized by statute but unconstitutional).  Suppose, though, that it's instead leaving an opening for the administration.  That is, is it an invitation to the administration to argue (in the alternative) that even if the action is unauthorized by statute it is constitutional under the take care clause?

01/25/2016

Further Reader Comments on Natural Born Citizens (plus Joseph Fishkin)
Michael Ramsey

Here are a couple of additional interesting reader comments on the Ted Cruz/Natural Born Citizen controversy:

From Victor Metallo:

Both Professors Larry Tribe and Thomas Lee are playing a game of “gotcha” with Ted Cruz when it comes to defining “natural born citizen” under the Constitution. Yet, neither are very convincing in their arguments that, based on this issue, conservatives should abandon the theory of originalism and convert to a liberal way of thinking about the Constitution. Originalism concerns the legal philosophy that one should read law based on the meaning of the words adopted at the time the law was written.  Both professors are using this situation to disparage originalism, which Cruz supports. Tribe and Lee insist that a plain reading of the Constitution would not include Cruz, and therefore, his own conservative philosophy fails him. The only way they say he can run for office is if a liberal judge is kind and sensitive enough to rewrite the law for him.

Article II, Section I, Clause 5 (the Presidential Eligibility Clause), states that: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]” From reading the plain language, there is a distinction, I believe, the Founders were making by using the disjunctive, “or.”

The Founders believed a president ought to be someone who has sole allegiance to this country, and one way of assuring that is to require a person be “natural born,” or born on the land to a legal father.  If a person is born on the land, there is no question that the person is a citizen of the United States alone, because no other country could lay claim to the birth (as in the case of someone being born of American parents in Spain or Italy).

But then there is the presence of the disjunctive “or” in Article II, Section I, Clause 5: “No person except a natural born Citizen, or a Citizen of the United States . . .” Many who argue that only natural born citizens can be President leave the second part out of their reading, probably because the next phrase, “at the time of the Adoption of this Constitution,” appears only to include the Founders and people on the land at time the Constitution was signed. Yet, one can argue that if the Founders, who were British subjects, only wanted themselves to be an exception to the rule that only “natural born” citizens could run for President, then the text should have been more restrictive to reflect that desire. For example, the Founders could have said a person has to be natural born “or a Citizen of the United States, existing at the time of the Adoption of this Constitution.” That would leave out any naturalized citizens that came afterward. It appears, however, the Founders left the door open for persons (including themselves) to run for office, who are citizens through some means other than being born on the land; and, the power to decide who is a citizen other than a natural born citizen was given to the Congress. Therefore, a plausible reading of the clause along with Article I, Section 8, Clause 4, could mean that both natural born citizens, as understood at the time the Constitution was adopted, would include those born on the land to a father who was a citizen and any other type of citizen that Congress may define at later date.  Congress cannot, however, decide who a natural born citizen is because at the time of the adoption of the Constitution, it was understood that a person was a natural born citizen through the citizenship of the father.  Changing the original understanding of “natural born” would require a constitutional amendment.  But that does not stop Congress from creating another category of citizen by statute.

Under Article I, Section 8, Clause 4, “The Congress shall have Power To . . . establish an uniform Rule of Naturalization. . . .” Congress has established by subsequent statutes those who are citizens in addition to natural born citizens.  Again, at the time, the Founders understood that to be a citizen meant loyalty to the country and citizenship was granted to a child through the citizenship of the father (patrilineal descent).  Yet, because the power is vested in the Congress to decide who a citizen is other than natural born, Congress can by statute grant citizenship through the mother as well. Those persons should be able to run for President, because it is hard to accept that the Founders, who were not natural born citizens were able to run for office, yet later generations who were similarly situated could not. And if one reads the Equal Protection Clause of the Fourteenth Amendment along with the Presidential Eligibility Clause, one cannot escape the fact that equal protection of the laws could be denied to future naturalized citizens to run for office, since the Founders did not make the Office of the President exclusive to natural born citizens (they carved out an exception for themselves).  

It is true that the courts have not weighed-in on the Presidential Eligibility Clause, leaving the door open to challenge. This is the “cloud” to which Donald Trump refers. But the charge that somehow originalism has failed conservatives on this issue is wrong. The clause read in total keeps with the originalist philosophy, and thus, is also in harmony with the Fourteenth Amendment.

And from Richard Heller:

I think the Constitutional phrasing (Art. II) refers to a “natural born citizen” using the citizenship determination standard in existence at the time the Constitution was adopted.  At the time of adoption, a candidate for president had to have been “born” in the U.S.  This makes Senator Cruz ineligible for the office.  The Act of March 26, 1790 (subsequently repealed) refers to the “children of citizens of the United States.”  The language suggests that under this Act, derivative citizenship required that both parents have been U.S. citizens at the time of their child’s foreign birth. 

My interpretation would eliminate naturalized citizens and derivative citizens from the office of president.  The Fourteenth Amendment would not change this result.

As noted previously, while we don't have a comments function (mainly due to the difficulties of moderating), I am always happy to get comments and to post them (sometimes subject to a little editing) if the commentators want me to.

Also I think this is a great post on originalism and the eligibility clause from Joseph Fishkin at Balkinization (though naturally I don't agree with it in full).

Michael Greve on Puerto Rico (Update: and Zachary Price)
Michael Ramsey

At Liberty Law Blog, Michael Greve: Whither Puerto Rico? (commenting on last week's arguments in Puerto Rico v. Sanchez Valle)

[In Puerto Rico v. Sanchez Valle] ... the Court heard oral argument on the question whether Puerto Rico is a “state” for purposes of the Double Jeopardy Clause....  You can be convicted for the same offense under state and federal law, because those laws come from different sovereigns. But is that true of Puerto Rico—or is the ultimate authority of its laws the U.S. Congress?

Obviously, Puerto Rico’s counsel (Chris Landau) conceded, the place isn’t a state. But it’s enough like a state to be treated like one, for purposes at hand. He didn‘t get very far with that argument, chiefly because the constitutional counterargument is so obvious: Something is either a state, or it isn’t. If it isn’t (but still belongs to the United States), it must be a territory. Putting aside the District of Columbia and the Indian nations, both specifically mentioned in the Constitution, “state” and “territory” are mutually exclusive—and they exhaust the universe. Congress can make all “needful regulations” with respect to territories and grant them a great deal of autonomy. Congress can make territories into states, or grant them independence. It can even tell the UN, as it has, that Puerto Rico isn’t a colony but kinda, sorta self-governing. (Justice Breyer made a big point of that.) None of those powers, however, can possibly encompass the power to make these places into constitutional mutts.

First, congratulations to my former co-clerk Chris Landau for another Court argument.  Second, I'm not sure I'm convinced by the bright line Professor Greve is trying to draw.  Congress' power over territories is plenary, so why can't Congress create a status of self-governing territory that is effectively sovereign?  (Of course Congress could withdraw that status -- in a way it cannot withdraw a state's status -- but so long as the status persists, why doesn't it hold for double jeopardy purposes?).  The bright line is appealing, because then we don't have to have the same argument about other territorial units whose self-governing status may not be so clear as Puerto Rico's.  I can see why rule-of-law-oriented origianlists (which is most of them) would like that result.  But originalism does not always produce bright lines, much as we would like it to.  Perhaps this is an issue the Constitution leaves Congress to decide, meaning that when Congress does not speak clearly the rule is uncertain.

Incidentally, my impression is that the conventional understanding of double jeopardy (that is does not apply to successive federal and state prosecutions) is not as solidly grounded in original meaning as one might suppose.  Something for Justice Thomas to think about?

UPDATE:  Zachary Price (UC Hastings) has further thoughts here: Dividing Sovereignty: Commonwealth of Puerto Rico v. Sanchez Valle (pointing  to his article Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction [Columbia Law Review]).  He concludes:

With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority.  In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies.  But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves.  Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.

It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state.

That was my intuition.

01/24/2016

Christian Djeffal: Static and Evolutive Treaty Interpretation
Michael Ramsey

Christian Djeffal (Higher Regional Court, Frankfurt) has posted Static and Evolutive Treaty Interpretation: A Functional Reconstruction (Cambridge University Press 2015) on SSRN.  Here is the abstract:     

How should international treaties be interpreted over time? This book offers fresh insights on this age-old question. The Vienna Convention on the Law of Treaties (VCLT) sets out the rules for interpretation, stipulating that treaties should be interpreted inter alia according to the 'ordinary meaning' of the text. Evolutive interpretation has been considered since the times of Gentili and Grotius, but this is the first book to systematically address what evolutive interpretation looks like in reality. It sets out to address how and under what circumstances it can be said that the interpretation of a treaty evolves, and under what circumstances it remains static. With the VCLT as its point of departure, this study develops a functional reconstruction of the rules of treaty interpretation, and explores and analyses how the International Court of Justice and the European Court of Human Rights have approached the issue.

And here is the book page from Cambridge University Press.

01/23/2016

William Baude & Wesley Campbell: Early American Constitutional History: A Source Guide
Michael Ramsey

William Baude (University of Chicago - Law School) and Wesley J. Campbell (Stanford Law School) have posted Early American Constitutional History: A Source Guide on SSRN.  Here is the abstract:

This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources. Further suggestions are welcome.

01/22/2016

Marty Lederman on Texas v. United States (Updated)
Michael Ramsey

At Balkinization, Marty Lederman says the "take care" issue in Texas v. United States is a non-issue:

Texas's nominal constitutional argument (as stated in its brief in opposition) is that DAPA [the immigration non-enforcement policy] is "'incompatible with the expressed or implied will of Congress,' where the '[President’s] power is at its lowest ebb'” (quoting from "Category 3" of Justice Jackson's celebrated Youngstown concurrence), because authorizing DAPA aliens to be employed is--according to Texas--"directly contrary to Congress’s will as expressed in the INA’s reticulated work authorization scheme."

But if the DHS Secretary's interpretation of the immigration laws--that they authorize him to afford the work authorization at issue here--is incorrect, as Texas alleges, that would simply mean that there's merit to Texas's side of an ordinary statutory interpretation dispute.  There is no independent constitutional issue in the case--at least, no more so than there is whenever anyone challenges the executive's interpretation of its statutory authorities, something that occurs every day.  The Secretary here purports to act pursuant to statutorily delegated discretion, relying upon a determination that the Reagan Administration made, after notice and comment, back in the 1980's.  Texas, by contrast, denies that Congress has conferred such authority--it insists that the agency has been acting upon an improper reading of the statute for more than 30 years.  And thus what is at stake is simply a question of statutory interpretation, about the nature and scope of the discretion that Congress has conferred upon the Secretary of DHS.  Dressing this up as a "Take Care" argument does not change it, or shed any further light on it.

Or as he puts it in conclusion, 

... [T]he Court will not, in any event, have any reason to reach the so-called "take Care" question.  If it rules that ... the Secretary lacks the statutory authority to confer "deferred action" status and/or work authorization to the class of aliens in question, then the case will be over, without resort to Texas's constitutional claim:  the government will not be able to implement DAPA.  But if, on the other hand, the Court rules that the Secretary has acted within his statutorily conferred authority, then the laws will have been properly executed, which would preclude the predicate for Texas's "take Care" argument.

This all sounds right to me, although enough people seem to be thinking of it as a take care clause case that I wonder if I am missing something.  One key assumption in the above analysis is that the President is relying only on statutory authority, not on independent constitutional authority.  But if that assumption is right, it does seem like the case is just one of statutory interpretation.

UPDATE:  Nicholas Quinn Rosenkranz sees it as a constitutional issue here.

01/21/2016

Josh Blackman and Randy Barnett on Texas v. United States
Michael Ramsey

Josh Blackman discusses the Supreme Court's grant of cert in the immigration enforcement case Texas v. United States and provides links to his prior articles here.  And here he is on PBS News Hour.  And in National Review: President Obama, Meet the ‘Take Care’ Clause: The Supreme Court orders the president to prove that he is faithfully executing the law.  From the latter:

The mere fact that the Court asked the government to brief this question in no way suggests how it will rule. But at a minimum, the justices recognized that the resolution of this foundational case requires a full accounting of the separation of powers — including the president’s own testament. However the Court rules in this case, it will set a powerful precedent for presidents of both parties, who seek to rewrite the law without Congress. In 2016, the president of the United States will at last meet the Take Care clause.

(On the meaning of the Court's briefing request, Gerard Magliocca has an interesting theory here).

At Volokh Conspiracy, Randy Barnett: The President’s Duty of Good Faith Performance.  From the core of the argument:

According to this theory of good faith performance, “scarcity of enforcement resources” is an appropriate motive for exercising prosecutorial discretion, but disagreement with the law being enforced is not. The same holds true with exercising prosecutorial discretion to enforce marijuana laws in states that have made it legal under state law. Prioritizing seriousness of offenses is one thing; disagreeing with the policy of the Controlled Substances Act (as I do) is another.

But how do you tell the difference? Here is where the President’s previous statements about the scope of his powers, about his legislative priorities, and his frustration with Congress’s “inaction” become legally relevant. His prior statements go to the President’s state of mind or motive, which is dispositive of the issue of “good faith.” If the President believed that the law precluded these actions but he was exercising the discretion he was given under the law to accomplish them nonetheless, he was abusing his discretion and acting in bad faith. Whether or not the law gave him discretion is not the answer to the question, it is the problem that a doctrine of good faith performance is devised to address.

01/20/2016

William Baude: Sovereign Immunity and the Constitutional Text
Michael Ramsey

William Baude (University of Chicago Law School) has posted Sovereign Immunity and the Constitutional Text on SSRN.  Here is the abstract:      

This Term, in Franchise Tax Board v. Hyatt, the Supreme Court will decide whether to overrule Nevada v. Hall, which holds that state sovereign immunity need not be respected in another state’s courts. Overruling Hall seems like one more logical extension of the Court’s modern sovereign immunity cases, such as Seminole Tribe and Alden v. Maine, although those cases have been accused of being inconsistent with the constitutional text.

There is in fact a theory that explains how Seminole Tribe and Alden are consistent with the text. But under that theory, Nevada v. Hall may well be rightly decided. This Term may therefore present a test of whether the Court’s sovereign immunity cases will finally break away from the text of the Constitution.

01/19/2016

Gans on Reconstruction and Affirmative Action
Mike Rappaport

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

Gans suggests that the Due Process Clause protected equality, but originalist scholarship does not support this claim.  Ryan Williams, who argues that Due Process protects equality, only claims that it does so as to states, not as to the federal government.  And Nathan Chapman and Michael McConnell contend that neither Due Process Clause protects equality, instead simply prohibiting actions taken against very small numbers of people.

Here is Gans’s second point:

Nor was the race-conscious legislation enacted by the Framers of the Fourteenth Amendment strictly remedial as Rappaport suggests.  The acts passed contemporaneous with the Fourteenth Amendment were not limited to the former slaves or the goals of redressing badges of slavery or other government-sponsored racial oppression.  Rather—like modern race-conscious admissions programs and other policies that use race to foster equality—the race-conscious measures enacted by the Framers of the Fourteenth Amendment were forward-looking in design, seeking to fulfill the promise of equality contained in the Fourteenth Amendment.  The Freedman’s Bank celebrated this week is a perfect example, ensuring that freed slaves and their descendants would have a place to keep their money, enabling them, as Frederick Douglass put it, “to rise in the world.”

I disagree with Gans again.  The most conspicuous and important of the federal statutes passed at the time was the Freedmen’s Bureau Act, which is the law I discussed in my post.  That statute was focused on former slaves.  While the Act may have been motivated by the concern to integrate the former slaves into American society, that does not change the fact that the benefits it provided were conferred on former slaves and thus conformed to a principle of colorblindness.

It is true that the Congress passed other statutes at the time and some of them may not have been limited to former slaves.  I discuss these statutes in an article, where I attempt to show that at most a few of these (minor) statutes represent a narrow exception to the colorblindness view adopted by the Supreme Court originalists.  But even if those statutes did constitute an exception, those statutes are unlikely to reflect the Congress’s view of the 14th Amendment, because once again the federal government was not subject to the equality requirements of the Amendment.

Glenn Reynolds on a Constitutional Convention to Contain the Administrative State
Michael Ramsey

In USA TODAY, Glenn Reynolds: Blow up the administrative state: Constitutional convention could wrest power from political class and return it to states and people (commenting on Texas Governor Greg Abbott's proposal).

This proposal has shocked some people. Writing in The Washington Post, Catherine Rampell — apparently unaware that the Constitution itself provides for amendments — is appalled, saying that Abbot wants to ”blow ... up” the Constitution. According to Rampell’s analysis, if you love the Constitution, you can’t simultaneously want to change it.

This would come as a surprise to the framers, who actually ratified the Constitution and then, immediately, passed 10 amendments known as the Bill of Rights. They then followed up in short order with the 11th Amendment — protecting state sovereignty from federal courts — and the 12th Amendment, which corrected serious problems in the way presidential elections were conducted.

The framers knew that the Constitution was a work in progress. And moderns like Rampell don’t really disagree with the idea of constitutional change. Instead, opposition to a convention is more about locking in changes made through other means — Supreme Court decisions like Roe v. Wade and Baker v. Carr, or just longstanding bureaucratic practice that courts and the public have come to accept — rather than through a formal convention where the changes would have to be approved by the American people as a whole.

The real fear, I suspect, is that the proposals urged by Abbott, which would roll back much of the political class's successful power-grab over the past century, would prove popular enough to pass. If that happened, the federal government would become both smaller and more accountable, two political-class nightmares.

At Instapundit, Elizabeth Price Foley has some even harsher words for the Rampell article.

Some Reader Comments on Natural Born Citizens
Michael Ramsey

Thanks to everyone who has sent me comments on our various natural born citizen posts.  While we don't have a comments function (mainly due to the difficulties of moderating), I am always happy to get comments and to post them (sometimes subject to a little editing) if the commentators want me to.  Here are some interesting ones I have received:

From Kevin Davidson:

[I have this comment] about how you [in your SSRN article] frame the initial conflict by saying that the word "natural" in law contrasts with the word "statutory." That may well be the case, but "natural born subject" is a term of art, and "natural born" is an idiom, neither of which carry the concept of "not statutory." The term of art was defined by Lord Dicey, in his "Digest of the Law of England with reference to the conflict of laws," who wrote: "'Natural-born British subject' means a British subject who had become a British subject at the moment of birth." That definition was cited approvingly by the Supreme Court in US v. Wong. Dicey goes on to explain in his book that there are two types of natural born subjects: common-law and statutory-law. The idiom is defined by the Oxford English Dictionary, which gives only one definition of the term "natural born":  "Having a specified position or character by birth; used esp. with subject."

I agree with the idea that "natural born" is (or, rather, became) an idiom, as the sources he cites reflect.  The problem with these sources is that they are well past the framers' time, but they still may be indicative of a usage that extends back to the framers' time.

From Scott Tepper:

While the United States adopted jus soli in the Constitution (and it was embedded in the 14th Amendment after the Civil War), jus sanguinis citizenship has always been a creature of statute. Based on Rogers v. Bellei, 401 U.S. 815 (1971) (a case which I personally dislike, but it's presently good law), I don't think Ted Cruz is eligible.

If you take your reasoning as well as the holding in Rogers v. Bellei, we could have the anomalous situation of a presidential candidate who was eligible to run for office and serve who was not a citizen (and whose admission to the United States could be barred).  Since the candidate would be "born a citizen" he would be eligible under your reasoning. But if he did not meet the conditions subsequent of the statute that "naturalized" him as a citizen and he lost his citizen, he would not be a U.S. citizen and he would be subject to our immigration laws.

I noted that your law review article fails to deal with Rogers v. Bellei. Did you ever consider it?  if not, now that it has been brought to your attention, what do you think?  (Of course, what I think is that Rogers v. Bellei is bad law. But it's a case to be dealt with in Ted Cruz's case.)

Rogers is an interesting case.  I didn't write about it in the article because it doesn't have much bearing on the original meaning.  But it raises a question whether there is a problem when Congress conditions  birth citizenship on later actions (which the Court in Rogers said it could do).  Professor Jack Chin (UC Davis Law) has an interesting post at Prawfsblawg also exploring the issue.  I think my answer is that it doesn't matter; the person is a born citizen, but if the subsequent conditions are not fulfilled then the person loses that status and becomes ineligible (just as a person born in the U.S. who renounced U.S. citizenship would not be eligible).

From William Rawle (who has given me many helpful comments on this issue in the past as well):

I just finished reading Mr. Natelson's commentary and wanted to add my two cents.  While I agree in general with what he is saying I disagree with his final comment,

"This would explain why the statute provides that the “children . . . shall be considered as natural born”—not that they literally are natural born."

I suspect he is confused by the use of the termed "shall be considered" as the same phrase can be found in the 1790 Act and its meaning can only be "literally are":

"Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court  that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.  And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States.  And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:  Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:  Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed."

Surely Mr. Natelson believes that naturalized persons are literally citizens.
 
Seems like a good point to me.

From Gary Britt:

Your critique of Professor McManamon if I understood it is that she doesn't accept or acknowledge that natural born citizen was understood to be something that could be defined by statute.  It seems to me the 1790 Act took that view and conferred or attempted to confer "natural born citizen" status on foreign born child of a citizen.  But the 1795 Act indicates a change in position and that it and all subsequent acts only confer naturalized citizenship status on foreign born child of a citizen.  The 1795 Act uses the same words/phrase to describe the citizenship conferred to a foreign born child of a citizen as the 1790 Act uses to describe a NATURALIZED aliens citizenship, i.e., "shall be considered as citizens of the United States".

It seems that jumping through lots of hoops of analysis to try and show the likelihood that naturalized citizen at birth equals natural born citizen is unnecessary and not probative when the plain words of the statute are there to use.

[To clarify, [i]t doesn't seem to me that the Congress said anything one way or the other about the definition of natural born in the 1795 Act, but rather the question is did the Congress in the 1795 Act only confer naturalized citizenship status to foreign born child of citizen as the change in language from the 1790 Act would seem to clearly suggest.

One last point.  In 1790 Act Congress set the precedent that to award natural born citizen status the statute has to say that using the words "natural born".  In 1795 Congress changed the words used and the type of citizenship awarded to foreign born children.  Congress since 1795 has not returned to the use of the words "natural born" to describe the type of citizenship awarded and therefore since 1795 only "naturalized" citizenship is the type of citizenship awarded a foreign born child.

I agree this is an issue.  I would say there are two questions on the 1795 Act: (1) What does it say about the constitutional meaning of natural born?; and (2) As a matter of statutory interpretation, does it suggest that -- even if Congress can constitutionally define natural born, it has chosen (since 1795) not to.  On (1), I think the 1795 Act is too ambiguous to provide any good evidence of constitutional meaning, since it's hard to say why Congress changed the wording and only some theories of why they changed the meaning are constitutionally relevant.  On (2), I think this is a challenge for Senator Cruz to explain why the statute makes him "natural born" even if it doesn't literally say so.  This, though, is a question of statutory interpretation.  I'm inclined to think that as to modern statutes, the best reading is that Congress understood it's grant of statutory birthright citizenship citizenship to be the equivalent of giving natural born status.  That appears to be the way it was commonly understood with respect to John McCain, for example.  But I agree this is a somewhat harder question.

From Douglas Petkoff:

I have read your most recent post rebutting Mary McManamon's piece on whether or not Ted Cruz is natural born.  In that post you state that she would be right if we were to have this discussion c. 1400, when presumably the common law definition would control.  You then state that "I don't understand, however, why she thinks that's decisive or why reliance on the statutes is inappropriate."

I would like to briefly respond.  I read US v Wong Kim Ark last night.  The majority opinion goes to great--really exhaustive--lengths to make the case that when interpreting the words in the Constitution in general, and in regard to determining the meaning of a natural born citizen in particular, recourse should be had to the common law.  They quote case after case to show that the common law is dispositive of this question.  There doesn't seem to be any room, from the standpoint of case authority, for importing understanding of British statutory law into the equation.
 
It seems to me very dubious to argue that because the founders likely knew about the British statutes regarding natural born citizenship, that they somewhat haphazardly imported that meaning into the phrase, creating a hybrid statutory/common law definition in the Constitution.  But even if they did so, it seems very inappropriate at this late date to say that this purported 'original public meaning' should trump [haha] binding case law on how to interpret the Constitution.  I don't think that kind of "originalism", if originalism it be, is conducive to interpretive stability.

Given the weight of the case law, it seems more likely, and I think probably the better argument, to say that the original public meaning of 'natural born' is what the common law defined it to mean.
 
On this point I don't have anything to add to what I've already said, except that I don't think Wong Kim Ark is conclusive or even very helpful on the point (especially not for originalism but even for today) since the issue of common law versus statutory law wasn't presented.
 
Jim Henderson points to this amusing post at his Just Sayin blog, asking whether Congress (fed up with feckless American leadership) could declare Vladimir Putin a natural born citizen.  I agree with the post's implication that it cannot, but the question is an important one for those who think Congress can declare people born abroad natural born citizens.  (He also has this post on the lawsuit recently filed regarding Cruz's eligibility).
 
And finally, Jon Roland writes to suggest his essay on the issue (available here), which has an extended historical and doctrinal
discussion concluding that Senator Cruz is not eligible.  Whether or not one agrees, it is quite a resource.

01/18/2016

A Different Take on Natural Born
Seth Barrett Tillman

My own view is that pre-1789 English/British statutes are no help at all in understanding what the Framers meant by Natural Born Citizen. None. And for the reasons I explain below, they cannot be any help. 

Because the Crown-in-Parliament had the most plenary authority in reassigning rights and duties, any statute which naturalized foreigners at birth by granting them the same rights as a natural born subjects (whatever that might have meant) was, in effect, making them identical for all legal purposes to natural born subjects. Parliament never had any reason to distinguish in any meaningful way whether it was expanding the meaning or scope of the term (natural born subject) or if it was just expanding the group of people with the rights & duties of natural born subjects. Absent a written Constitution, such a distinction would be without effect or purpose. 

The question is what the term meant to the Framers and ratifiers circa 1787. It is possible that it was understood by them as limited to those born in the US (or the colonies or the independent states prior to 1783 when the Articles came into force, or in the US post-1783). (This assumes that if born pre-1776,  they gave up--actively or impliedly--British nationality.) That limited meaning--suggesting that natural born citizenship is coextensive with place of birth--is possible. But the term may have been understood as more dynamic -- as including those born "here" and also including any others as defined by the lawmaking authority to be within the allegiance of the United States. That is, "natural born citizen" was elastic as long as the person was a citizen at birth or could claim citizenship at birth retroactively upon reaching adult status. Some people will think the latter view odd, but that is because they wrongly believe that every term or phrase in the Constitution had to have a fixed meaning. I happen to think some terms were intended to act as floors, ceilings, or defaults--leaving the exact content of the term flexible within limits. 

So where does that leave us and Cruz? Because the historical precedents are not helpful (on this particular issue), ties go to the runner, i.e., the candidate & voter. It is a well settled canon of construction—the democracy canon—that statutory and constitutional language limiting eligibility to office is interpreted narrowly. As Corpus Juris Secundum explains:

Statutes limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office in order that the public may have the benefit of choice from all those who are in fact and in law qualified. Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility.

67 C.J.S. Officers and Public Employees: Construction and operation of constitutional and statutory provisions, generally § 23 (2015) (footnotes omitted). 

Cruz should be allowed on the ballot, and if he prevails on election day, his electors should vote for him, and Congress should count those electoral votes cast for him, and he should take the oath of office, and then proceed to execute his duties.

Bryan Garner on Natural Born Citizens
Michael Ramsey

At The Atlantic, Bryan Garner: Legal Memorandum: Is Ted Cruz Eligible for the Presidency? (from the editor of Black's Law Dictionary and co-author, with Justice Scalia, of Reading Law).  Short answer: yes, but with quite a bit of reliance on the Equal Protection Clause.  Plus lots of interesting discussion along the way.

RELATED:  Also in The Atlantic, Garrett Epps on the same topic, with a similar answer: Ted Cruz Is a Natural-Born Citizen -- Whatever the Founders may have thought, contemporary law is perfectly clear on this point

And John Eastman here, at NRO (finding English and founding-era history to be conclusive, though mostly avoiding the non-citizen father issue).

01/17/2016

John McGinnis on Economic Liberties
Michael Ramsey

At Liberty Law Blog, John McGinnis: The 14th Amendment Protects Economic Liberties.  It begins:

The Fourteenth Amendment is one of the hardest provisions in the Constitution to get right. Sometimes there seem be as many theories of the provision as there are theorists. I admire their persistence. While I am not an expert in the all the intricacies of the Amendment myself, I do think it very probable that it protects economic liberty at least from discriminatory and arbitrary interference. Thus, its original meaning offers support for recent courts that have invalidated irrational licensing schemes.

For me, three reasons combine to present a persuasive case that the Fourteenth Amendment protects economic liberty. ...

And that's a strong endorsement coming from Professor McGinnis, since he thinks a law's unconstitutionality must be very clear before a court can invalidate it.  I am somewhat more skeptical that the Fourteenth Amendment is very clear on this point.

01/16/2016

Aziz Huq: The Constitutional Law of Agenda Control
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) has posted The Constitutional Law of Agenda Control (California Law Review, Vol. 104, December 2016, forthcoming) on SSRN.  Here is the abstract:   

Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets bounds to state action, it also structures the range of policy options and the rules for making legally effective choices. This Article analyzes the ensuing constitutional law of agenda control, focusing on the distribution of such powers between the three federal branches. This analysis generates two central claims. First, the Framers incorporated an array of heterogeneous agenda control devices across the three branches in order to calibrate intragovernmental relations. These make up a hitherto ignored constitutional law of agenda control. Second, a surprising number of these constitutional agenda-setting rules have been ignored or even circumvented. Political actors have tended to negotiate alternate distributions of agenda control power at odds with the original constitutional design. While the ensuing transformation of the constitutional processes for governance has ambiguous distributive consequences, there is reason to treat the historical transformation of constitutional agenda control as on balance a desirable development.

(Via Larry Solum at Legal Theory Blog, who says "highly recommended."

01/15/2016

Laurence Tribe and Donald Trump
Michael Ramsey

In last night's debate, Donald Trump cited Harvard Law Professor Laurence Tribe for the proposition that serious doubt hangs over Ted Cruz's eligibility to be President.  (Josh Blackman quotes the transcript here).

This is wrong for two reasons.

First, that's not what Professor Tribe said.  In his Boston Globe op-ed (his most recent statement I know of), he said that originalists should find Cruz ineligible -- and since Cruz says he is an originalist, that makes for an amusing irony.  But Tribe went on to say that he  thinks Cruz is eligible under the Constitution's modern meaning and moreover that "no real court is likely to keep Cruz off the ballot, much less remove him from the White House if he were to win."  

Second, as both Andrew Hyman and I pointed out on this blog, Tribe's originalist argument has a serious flaw.  Tribe states:  

the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen.

That is not true.  Under both late eighteenth-century English law, as explained in Blackstone, and U.S. law as enacted by the First Congress in 1790, some people born abroad had "natural born" status as a result of the nationality of their parents.  There is simply no dispute about this point.

One can still argue that Cruz is ineligible (though I think the argument is mistaken, as I've explained at length).  But one cannot argue that Cruz is ineligible because the law of the 1780s and 1790s required birth within the country to be natural born.

In my view, Professor Tribe should clarify both points.  Otherwise, he allows this debate to take a very misleading turn.

Kurt Lash: The Due Process Understanding of the 1866 Civil Rights Act
Michael Ramsey

[Ed.: This post has nothing to do with natural born citizens.]

Kurt T. Lash (University of Illinois College of Law) has posted The Due Process Understanding of the 1866 Civil Rights Act on SSRN.  Here is the abstract:

Scholars have long looked to the 1866 Civil Rights Act for clues to understanding the original meaning of the Fourteenth Amendment. Despite widely divergent conclusions about the Amendment, almost all scholars share two key assumptions about the Act. First, the framers intended the Fourteenth Amendment’s Privileges or Immunities Clause to retroactively constitutionalize rights protected by the Civil Rights Act of 1866. Second, the framers of the Civil Rights Act sought to enforce the “privileges and immunities of citizens in the several states” protected under Article IV and described in the antebellum case Corfield v. Coryell. A close look at the original sources, however, suggests that neither of these assumptions are correct. The members of the Thirty-Ninth Congress who passed the 1866 Civil Rights Act sought to enforce the equal due process rights of all persons, not just the special privileges and immunities of citizens. Scholars have failed to recognize this by failing to study the original and final versions of the Civil Rights Act.

The original version of the Civil Rights Act guaranteed all persons certain equal rights relating to the protection of person and property. Proponents described these rights as essential aspects of the due process rights of life, liberty, and property originally declared in the Declaration of Independence and constitutionalized by the Fifth Amendment’s Due Process Clause. However, due to concerns that Congress lacked power to enforce the rights of non-citizens, proponents amended the Act to protect only citizens. John Bingham, the man who framed Section One of the Fourteenth Amendment, expressly viewed the 1866 Civil Rights Act as an effort to enforce the Fifth Amendment’s Due Process Clause, but he refused to support the Act. According to Bingham, the amended version unjustly failed to protect all persons’ due process rights. Bingham also insisted that protecting anyone’s due process rights required a constitutional amendment. Bingham subsequently submitted his second version of Section One of the Fourteenth Amendment — a version that included due process rights for all persons. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act of 1866 but extended its key provisions to protect all persons and not just citizens. Satisfied that Congress now had the power to enact such legislation, Bingham supported the final version of the Civil Rights Act. The debates of Congress, including the objections of John Bingham, were well published and prompted public commentary which reflected the due process reading of the Civil Rights Act and suggest a Civil Rights Act public understanding of the Due Process Clause.

A Response to Michael Ramsey on Originalism and Natural Born Citizens
Thomas Lee

[Ed.: This guest post is from Thomas H. Lee, the Leitner Family Professor of International Law and Director of Graduate and International Studies at Fordham University Law School.  It responds to some earlier posts on this blog.]

I want to begin by saying Michael Ramsey’s draft paper is the best thing out there on the question of the original meaning of “natural born citizen” in Article II.  That’s not surprising because he is one of the best, most honest originalists/textualists of our generation, as I can attest from co-authoring a Presidential Power Stories chapter with him on the Prize Cases.  I am going to be posting my own complete paper on SSRN next week, which covers much of the same evidence he does but interprets it somewhat differently; the only important additional piece of evidence I discuss is a 1784 Maryland statute mentioned in my LA Times op/ed that made Lafayette a “natural born citizen.”  I’d like to describe here our agreements and disagreements.  (1) Most importantly, Michael and I agree that being a natural born citizen (NBC) is not synonymous with “born in the USA.”  (2) We also agree that prior English practice and the law of nations is very important to understanding what NBC in Article II meant in 1788 (that’s when New Hampshire, the ninth state, ratified).  (3) Finally, we both agree that the 1790 Naturalization statute does not say children born abroad to a US citizen mother are natural born citizens, and in fact the best interpretation of the 1790 statute is that it applies only to the children of American fathers or of American fathers and mothers. 

Where we disagree.  (1) In terms of method, Michael is more textualist than I am—I’m very sympathetic to originalism (unlike Larry Tribe) but tend to focus on the purpose behind enactments and provisions, general legal principles, intellectual history, and broader socioeconomic and political history.  This means that he places more importance on statutes using the same words or “natural born subjects” and contemporaneous dictionaries; I focus more on the purposes of constitutional provisions and enactments.  When one considers purposes, the NBC Clause was intended to ensure that the President and military Commander in Chief was loyal to the USA and did not possess conflicting allegiances to other countries (e.g., Lafayette to a republican France).  Naturalization statutes, including the 1790 Naturalization statute that uses the words “natural born citizen” and their English antecedents do not address presidential eligibility, but rather who has to follow additional steps to become citizens. 

(2) It’s true, as Michael says, that both Parliament and Congress have tweaked that definition over time.  He concludes, not unreasonably, from this evidence that Congress has broad discretion under the “Naturalization Clause” to define who is a “natural born citizen” eligible to be President.  Again, naturalization statutes are irrelevant to constitutional eligibility to be President.  And there is nothing in the legislative history of the Article I Naturalization Clause to suggest that it was meant to extend to Congress a power to shape the presidential eligibility standards pertaining to citizenship in Article II.  Consider, as well, what such a congressional power means: Congress has broad discretion to change standards of presidential eligibility on the ground of citizenship set forth in Article II.  What is the limiting principle?  Some connection to the United States is what Michael proposes.  In my opinion that is a slippery standard (Lafayette counted, Congress could make Arnold Schwarzenegger eligible by statute—a constitutional amendment would be unncessary) and can’t be what the constitutional words, “natural born citizen” meant.  Isn’t it more logical (and possibly textualist) to construe the word “natural” in the constitutional provision as referring to the two major principles of natural law regarding citizenship/subjectship then in play—jus soli and jus sanguinis?  As I describe in another paper about the civil law’s influence on early American constitutionalism, the early Americans were very much sympathetic to the civil law, more than England.

So what do I think “natural born Citizen” in Article II means?  My own research, which I will describe in my paper (stay tuned—on SSRN next week), indicates at the very least it included children of public officials the government sent abroad.  It would have been perverse to punish those who went abroad to serve the sovereign, by disqualifying their children from  the highest political office.  In my paper, I call these public citizens or subjects.  (This exception arguably includes women who might serve, based on a seventeenth century English statute that mentioned mothers, presumably ladies-in-waiting serving Mary when the court was in the Netherlands).

As to private citizens or subjects who have children abroad, the picture is murkier.  Obviously these people did not go abroad to serve the sovereign, but rather for voluntary reasons, likely of economic nature.  And so their offspring cannot be presumed to have the same warrants of parental loyalty. But the mid-late eighteenth century English statutes, for mercantilist reasons, indicate that children of English men to the second generation were deemed “natural born subjects.” The background presumption was that the DNA of political loyalty depended on the allegiance of the father; the mother was wholly irrelevant.

In summary, by the mid-late eighteenth century, the rule that public subjects' children born abroad were natural born subjects had penetrated the common law, even according to Blackstone, and was a natural principle of the law of nations that did not require a parliamentary statute to activate.  For private subjects in England, statutes may still have been required to make their children natural born subjects. So there are two possible conclusions here from an originalist perspective: (1) only the children of public citizens/subjects born abroad are natural born citizens eligible to President or high political office in UK (ambassadors, ministers, soldiers, courtiers (including ladies-in-waiting), so John McCain was good to go on this basis); (2) the children of private citizens/subjects born abroad to citizen/subject fathers or paternal grandfathers are “natural born citizens/subjects.” Both are consistent with the larger point that the rule of blood—jus sanguinis—was part of the “natural” principles referred to in the Natural Born Citizen Clause.  Why did I pick the broader definition in my LA Times op/ed, to include eligibility for children born abroad to private citizen fathers?  I think it seems fair to me to say that if there is reasonable doubt, then go with the provision that gives broader access, the more democratic one.  But this is a closer call from an orignialist perspective.  But it’s a different way to think about it than from a textualist approach as Michael Ramsey has taken.

MICHAEL RAMSEY adds:  I appreciate the kind words, and I think this post is an excellent contribution in clarifying the debate.  To be clear, I don't think I actually agree with the third point of "agreement" mentioned in the opening paragraph (I think the 1790 statute is likely ambiguous on this point), but I also don't think it affects the wider debate much.

01/14/2016

Professor Tribe on Natural Born Citizens
Andrew Hyman

In a recent opinion piece for the Boston Globe, Professor Laurence Tribe writes: "the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a 'natural born' citizen."  In contrast, the source that Tribe cites says: "By 1787, English law thus included two bases for natural born citizenship: (1) birth in England; and (2) birth abroad as the child or grandchild of a natural born English subject."  Presumably this was a very forgivable unintentional error on Professor Tribe's part.

Recently, I came across an English statute from 1747 that indicates a third basis in English law for natural born citizenship (NBC): seven years of residency in the American colonies, regardless of the location of birth or the citizenship of the parents, provided the colonist took an oath of fidelity to the protestant religion.  If one were a stickler about English law of the 18th century (which I am not in this instance), it appears that Senator Cruz would qualify for the presidency this third way too, although we would have to sever the religious test.  

As indicated in my blog post a few days ago, I am inclined to simply use Samuel Johnson's dictionary to explain what a natural born citizen is, without relying on English law.  There are several reasons for this.  First, the 1747 statute would make the NBC requirement superfluous, given that the religious test must be ignored, and given that the Constitution already requires being "fourteen Years a Resident within the United States." Second, the framers of our Constitution might well have explicitly incorporated old English law into the NBC Clause, as they did into the Seventh Amendment, if they had really wanted to.  Third, I am not a big fan of deeming constitutional phrases as technical terms of art unless they are used verbatim, and of course the NBC Clause departs from the verbatim English terminology (mainly because the framers thought the word "subject" was inappropriate absent a monarchy).  And, fourth, there is little evidence that the framers wanted to require patrilineal transmission of citizenship as an eligibility requirement for president (without requiring the president be male), whereas patrilineal transmission might well be necessary if we were to put aside the 1747 statute in favor of older English law.
 
So, I recommend Johnson's dictionary.  It still leaves some ambiguity, which Congress and the courts can take care of.

P.S. Thanks to Rob Natelson for sending me the full text of the 1747 statute, which I uploaded, and which is linked above.

Akhil Amar (and others) on Ted Cruz
Michael Ramsey

At CNN Opinion, Akhil Reed Amar: Why Ted Cruz is eligible to be president.  He makes what I regard as the two core originalist points:

From the founding to the present, Congress has enacted laws specifying that certain categories of foreign-born persons are citizens at birth. The earliest statute, passed in 1790, explicitly called certain foreign-born children of U.S. citizens "natural born citizens." It did not say they should be treated "as if" they were "natural born citizens." It said they were in law deemed and declared to be "natural born citizens." Congressional laws have changed over the years, but this 1790 law makes clear that from the beginning, Congress by law has the power to define the outer boundaries of birth-citizenship by conferring citizenship at birth to various persons born outside the United States.

And:

... Congress has two powers under the Naturalization power: to define birth citizens, eligible for the presidency, and to allow other nonbirth citizens to become naturalized citizens, to treat them for most other (nonpresidential) purposes as if they had been born citizens.

When the framers were drafting the Constitution, they were aware that the British Parliament had a long tradition of passing both types of naturalization laws, and the founders were specifically aware of laws that Parliament had passed conferring birthright status upon certain babies born to English parents outside England, babies referred to by these landmark statutes as "natural born."

Note that the right question to ask is not: What were the natural-born statutory rules in 1788 or 1790? The right question is: What are the natural-born statutory rules on the day a given presidential candidate was born? These statutory rules have changed over the years, and Article II builds these future changes into its elegant language.

I agree.

RELATED:  Some other big-name constitutional law professors weigh in.  

Cass Sunstein, at Bloomberg View: Is Cruz 'Natural Born'? Well ... Maybe.  He calls it a close question but narrowly agrees with Cruz, mostly on the basis of the 1790 Act.  I think the prior English practice counts more than he does but generally I agree (and I appreciate the favorable comments).

Laurence Tribe, in the Boston Globe: Under Ted Cruz’s own logic, he’s ineligible for the White House.  The article's total analysis on eligibility is:

To his kind of judge [that is, an originalist], Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen. Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive.

First, I'm always skeptical when an avowed non-originalist tells originalists what they have to believe about an issue.  Second, Professor Tribe's statement that "the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a 'natural born' citizen" is simply wrong, and I don't think anyone seriously argues otherwise.  But just to be clear, (a) English law in the 1780s recognized "natural born" status for those born abroad with English-subject fathers or English-subject paternal grandfathers, and (b) the 1790 naturalization statute expressly said that children of U.S. citizens born abroad were natural born citizens.

It's true that Senator Cruz wouldn't have been "natural born" under the 1788 English rule because his claim is through his mother not his father.  (The 1790 statute is a little ambiguous on this point, possibly requiring both parents to be citizens).  This is different from claiming that one must be born in the United States to be eligible; Professor Tribe seems to be conflating two different arguments in the quoted paragraph.   But I've explained at length why I think an originalist should nonetheless find Cruz eligible.  Professor Tribe may find that unpersuasive (I welcome his comments), but he can't just declare that originalism necessarily establishes Cruz's ineligibility.