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42 posts from January 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.


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.


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.


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.


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).


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.


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."