The Originalism Blog

The Nonoriginalist Case Against Birthright CitizenshipMike Rappaport

At the end of his post on birthright citizenship, Mike Ramsey writes: "On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger."

Some years ago, I wrote two posts on the Nonoriginalist Case Against Birthright Citizenship.  While I agree with Ramsey about the originalist argument, I made out the nonoriginalist case against birthright citizenship.  See here and especially here. 

For an excerpt: 

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege.  It gives access to high wage markets as well as welfare state benefits.    Given these privileges, the normative question is how we should allocate this privilege of citizenship.

It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States.  Why would one want to allocate citizenship to children merely because they were born here as a result of their parents having come here illegally?  As I noted in an earlier post, there are a variety of ways one might want to allocate citizenship (and immigration) – based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States – but none of those are based on the simple accident of being born in the US.

Finally, a third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend as to these laws suggests that normatively the United States ought to follow it.  Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States.  None of the European countries have it and several developed nations have repealed it in the last generation. 

Ilya Somin on Birthright CitizenshipMichael Ramsey

At Just Security, Ilya Somin: Birthright Citizenship and Undocumented Immigrants.  From the introduction:

The incoming Trump administration may be preparing to deny citizenship rights to children of undocumented immigrants born in the United States. That’s according to recent reporting, a statement on Nov. 11 by a presidential transition member helping develop the new administration’s plans for the Justice Department, and a “Day One” video made by President-elect Trump during the campaign (incoming border czar Tom Homan also supports ending birthright citizenship). According to the New York Times, “the team plans to stop issuing citizenship-affirming documents, like passports and Social Security cards, to infants born on domestic soil to undocumented migrant parents in a bid to end birthright citizenship.”

Such policies would be a blatant violation of the Fourteenth Amendment, both the text and the original meaning. Section 1 of the Amendment grants citizenship to anyone “born … in the United States and subject to the jurisdiction thereof.” There is no exception for children of illegal migrants. There is broad agreement on that point among most constitutional law scholars, across the ideological and methodological spectrum.

Agreed (and I appreciate the cites later in the post to my birthright citizenship article and recent post on this blog).

As Professor Somin says, this issue is likely to end up in court if the Trump administration pursues it, and it should be an easy call for originalist-oriented judges and Justices.  On the other hand, for nonoriginalists, the case against birthright citizenship in light of modern circumstances (which are quite different from the time the Amendment was adopted) might seem considerably stronger.  So I'll be looking to see if originalist critics suddenly decide that the original meaning is quite clear and must be followed in this case.

New Book: "The Meese Revolution" by Steven Calabresi & Gary LawsonMichael Ramsey

Recently published: The Meese Revolution - The Making of a Constitutional Moment, by Steven Calabresi & Gary Lawson (Encounter Books, Nov. 2024).  Here is the book description from the publisher: 

Edwin Meese III is the most influential person ever to hold the office of U.S. Attorney General – and almost no one knows it. Ed Meese was at the center of virtually every major accomplishment of Ronald Reagan’s transformative presidency, from winning the Cold War without firing a shot to the economic boom that by the end of the 1980s was the envy of the world. More to the point for this book, Ed Meese is the person most responsible for the rise of constitutional originalism, which treats the text and original meaning of the Constitution rather than the policy fads of the moment as authoritative law.

In 2024, originalism is a major force in the courts, with a majority of Supreme Court justices and a raft of lower-court and state-court judges at least taking it seriously as a major contributor to decision-making. That result was unthinkable in 1985 when Meese took office and originalism was essentially unknown to the legal academy and almost wholly absent from the judicial process. Ed Meese turned the U.S. Department of Justice into “the academy in exile,” where originalism was developed, refined, theorized, and put into practice.

This book describes the rise of originalism, which necessitates telling the story of Ed Meese, without whom it surely does not happen. Meese’s story threads through virtually all important legal and policy events of the 1980s, many of which continue to shape the world of the twenty-first century. We are still living through the Meese Revolution.

Via Josh Blackman at Volokh Conspiracy, who recounts an amusing incident from the book: That Time Solicitor General Fried Redacted The Word "Plenary" From a Printed SCOTUS Reply Brief With A Marker.

New Nondelegation Case at the Supreme Court (and the Need for Originalist Briefing)Michael Ramsey

On Friday the Supreme Court granted cert in Federal Communications Commission v. Consumers’ Research (SCOTUSblog summary here). The questions presented by the petitioner are:

 (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the Universal Service Fund;

(2) whether the FCC violated the nondelegation doctrine by using the financial projections of the private company appointed as the fund's administrator in computing universal service contribution rates; and

(3) whether the combination of Congress’s conferral of authority on the FCC and the FCC’s delegation of administrative responsibilities to the administrator violates the nondelegation doctrine.

Jonathan Adler comments here, and notes that the Court added an additional question:

In addition to the questions presented by the petitions, the parties are directed to brief and argue the following question: Whether this case is moot in light of the challengers' failure to seek preliminary relief before the Fifth Circuit.

So maybe there will not be a nondelegation decision by the Court after all.

Meanwhile, at Legal Theory Blog, Larry Solum has an important short post: Will the Original Public Meaning of Articles I and II Be Briefed by the Parties in FCC v. Consumer's Research? He notes that the parties' briefs generally do not examine the Constitution's original meaning regrading nondelegation, and comments:

The lack of party engagement with the original meaning of Articles I and II may become important because of the Party Presentation Principle. The precise contours of the principle are murky and the practice of the Supreme Court in applying the principle is inconsistent, to say the least. But the failure of the parties to raise the original public meaning of the constitutional text might result in a majority opinion that fails to address the actual meaning of the constitutional text--a troubling possibility.

Optimistically, there's plenty of time for originalist briefing at the merits stage.  Perhaps some originalist scholars (on both sides) will want to help out.

Preston Lim: The Great Depression and Canada's Major Originalist DecadeMichael Ramsey

Preston Jordan Lim (Villanova University - Charles Widger School of Law) has posted The Great Depression and Canada's Major Originalist Decade (Osgoode Hall Law Journal (forthcoming)) (49 pages) on SSRN.  Here is the abstract:

Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments’ inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council—then Canada’s apex court—had sapped the federal government of its powers by misinterpreting the British North America Act, 1867. 

Although scholars have correctly identified the Great Depression as a period of intellectual ferment and even revolution, none has fully accounted for the prevalence of originalist thought in the legal debates of the time. In response to the Great Depression, the major legal thinkers and reformers of the 1930s deployed originalist arguments. They criticized the Privy Council for having departed from the original intentions of the Fathers of Confederation and the original meaning of the Constitution. While the leading jurists of the period all tended to employ originalist reasoning, they often disagreed on interpretive outcomes. Thus, while many jurists used originalist reasoning to argue in favour of a strong central government, some argued that the original intentions of the Framers and the original public meaning of constitutional provisions favoured a federalist interpretation of the British North America Act. I conclude that the dominance of originalism during the legal debates of the 1930s bears several lessons for modern constitutional theorists. The fact, for example, that jurists of all ideological backgrounds employed originalist logic demonstrates that the characterization of originalism as inherently conservative makes little sense in the Canadian context. 

Like yesterday's post, the author presented an earlier version of this paper at the  at the 15th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego last February.

Kurt Lash & Stephanie Barclay: Religious Resistance and the Fourteenth AmendmentMichael Ramsey

Kurt Lash (University of Richmond School of Law) & Stephanie H. Barclay (Georgetown University Law Center) have posted 'A Crust of Bread': Religious Resistance and the Fourteenth Amendment (53 pages) on SSRN.  Here is the abstract:

In Employment Division v. Smith, the Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the biblical command to care for the needy and provide the hungry a “crust of bread,” even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the authors explore how replacing the Smith test with a strict scrutiny test would better protect post-Fourteenth Amendment free exercise. At the very least, the evidence in this article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable.

The authors presented an earlier version of this paper at the 15th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference in San Diego last February.

The Major Questions Doctrine as a Deregulatory ToolMichael Ramsey

In the Wall Street Journal, Elon Musk and Vivek Ramaswamy outline their approach to cutting the size of government: The DOGE Plan to Reform Government - Following the Supreme Court’s guidance, we’ll reverse a decades long executive power grab.  From the core of the article:

... Our North Star for reform will be the U.S. Constitution, with a focus on two critical Supreme Court rulings issued during President Biden’s tenure.

In West Virginia v. Environmental Protection Agency (2022), the justices held that agencies can’t impose regulations dealing with major economic or policy questions unless Congress specifically authorizes them to do so. In Loper Bright v. Raimondo (2024), the court overturned the Chevron doctrine and held that federal courts should no longer defer to federal agencies’ interpretations of the law or their own rulemaking authority. Together, these cases suggest that a plethora of current federal regulations exceed the authority Congress has granted under the law.

DOGE will work with legal experts embedded in government agencies, aided by advanced technology, to apply these rulings to federal regulations enacted by such agencies. DOGE will present this list of regulations to President Trump, who can, by executive action, immediately pause the enforcement of those regulations and initiate the process for review and rescission. This would liberate individuals and businesses from illicit regulations never passed by Congress and stimulate the U.S. economy.

When the president nullifies thousands of such regulations, critics will allege executive overreach. In fact, it will be correcting the executive overreach of thousands of regulations promulgated by administrative fiat that were never authorized by Congress. The president owes lawmaking deference to Congress, not to bureaucrats deep within federal agencies. The use of executive orders to substitute for lawmaking by adding burdensome new rules is a constitutional affront, but the use of executive orders to roll back regulations that wrongly bypassed Congress is legitimate and necessary to comply with the Supreme Court’s recent mandates.

This is a fairly sophisticated separation of powers analysis for a couple of billionaires.  (Sounds like they have been reading Justice Gorsuch's concurrences).   Also it's a notable focus on deregulation (as opposed to just government efficiency, which is a somewhat different thing.)   The key component here is the major questions doctrine (MQD), invoked by the Court in the West Virginia case to require “clear congressional authorization” for administrative or executive agencies to exercise delegated authority over “major policy decisions."  (I argue here that the doctrine is consistent with originalism, as a protection against the executive branch overreading vague statutes to claim lawmaking authority that the executive branch shouldn't have.)  Although the MQD is a canon of judicial interpretation, after West Virginia the President doesn't need to wait for regulations to be challenged in court -- he has the power (under the executive vesting clause) and arguably the duty (under the take care clause) to review executive branch claims of authority to assure that they are consistent with the MQD.

Further, as the article notes, the President likely has power (as part of the executive power of prosecutorial discretion) to pause enforcement while considering whether claims of delegated authority comply with the MQD.  Again, I don't think the President has to wait for the Court to rule.  As head of the executive branch, the President has the power and duty to assure the executive branch is operating constitutionally (including that it is staying within its delegated power).

And, related to these points and not mentioned in the article: if regulations are challenged in court under the MQD, I would not think the President has a duty to defend them.  Whether the President has a duty to defend statutes passed by Congress against constitutional challenges is debated -- but whatever arguments can be made in favor of such a duty, they seem not to apply to claims that regulations exceed delegated authority.  So the President can decline to litigate and agree to withdraw the challenged regulation.

Thus Musk and Ramaswamy see a dynamic that perhaps the Court in West Virginia did not fully appreciate: the MQD doesn't just empower courts -- it empowers a deregulatory President (if that's what Trump wants to be).

The President's Power to Adjourn CongressMichael Ramsey

I wasn't going to comment on the supposed scheme for President Trump to adjourn Congress and then appoint his cabinet through the recess appointment power (Article II, Section 2), on the ground that it was too fanciful and a bluff at most.  But serious people seem to be taking it semi-seriously, so I took another look at it, and have these thoughts.

As my co-bloggers have pointed out (here and here), the scheme would be a complete constitutional non-starter under the Constitution's original meaning, had the Supreme Court not taken a inexcusable wrong turn in the Noel Canning case regarding the scope of the recess appointments power. But as Ed Whelan points out at Bench Memos, there's no need to even reach that issue, because the President does not have the power to adjourn the Senate that the scheme contemplates.  I did not fully understand this argument at first glance, but on closer reflection I think Ed is absolutely right.  Close attention to the text really does provide a definitive answer.

The first question is: where does the President get power to adjourn Congress?  The answer is Article II, Section 3:

he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.

I'll assume the adjournment power granted here applies to all sessions of Congress, not just to extraordinary sessions provided by the first part of the clause (though there's a plausible argument to other way). So the President's power to adjourn arises from a disagreement between the House and Senate as to the time of adjournment.

The second question is, how would such a disagreement arise? The answer is: Article I, Section 5. Generally, by Article I, Section 5, "[e]ach House may determine the Rules of its Proceedings", including presumably with respect to adjournment. But Article I, Section 5 further provides:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

So a disagreement arises when one House wants to adjourn for more than three days and the other doesn't want it to.  In that situation, the President, under Article II, Section 3, resolves the dispute.  This makes sense -- if one House tries to force the other to stay in session, the House that wants to adjourn can appeal to the President to intervene.

Applied to the present proposal, however, it's clear that the Constitution doesn't mean what the proponents of the recess appointments scheme think it means.  The House of Representatives doesn't have any power to demand that the Senate adjourn (a decision governed by the Senate's internal rules under Article I, Section 5).  The House's power is only to decide whether to adjourn itself.  If it decides to adjourn, then it must ask the Senate for consent.  If the Senate refuses consent, then there is a disagreement, which invokes the President's adjournment power. If the Senate agrees to the House's adjournment, there is no dispute, and the House adjourns.  But the Senate stays in session.  Because there's no dispute, there's no presidential power to adjourn. The key to the whole structure is that one House can adjourn while the other does not.  There's no requirement that both Houses either be in recess or be in session at the same time.

So, in an attempt to carry out the recess appointments scheme, the House can vote to adjourn.  It then asks the Senate for consent under Article I, Section 5.  The Senate agrees, and the House is adjourned.  The Senate remains in session.  There is no recess of the Senate, and so no opportunity for recess appointments (and no way for the President to force the Senate to adjourn).

Sadly, the Supreme Court doesn't get a chance to revisit its error in Noel Canning.  The Senate can protect itself, without Court intervention.  But, on a happier note, the President doesn't get to end-run the Constitution's requirement that the Senate consent to appointments. 

Mike Rappaport adds: I agree with Mike Ramsey about the constitutional analysis.  But suppose that the House claims that the Senate cannot stay in session without the House's consent and Trump agrees with the analysis, stating that the Senate must adjourn for two weeks.  The Senate purports to be in session but Trump claims it is not legally in session.  Trump then makes a recess appointment.  The appointment is then challenged and the courts decide, presumably against the Recess Appointment.

And perhaps the Supreme Court does not accept cert.  But perhaps it does.  And then instead of going immediately to this issue, they revisit the interpretation in Noel Canning, overturning that case.  And then maybe as an alternative ground they hold that there was no recess. 

Absurdly unlikely, sure.  But I can dream.  But the reason to bring it up is to point out yet another absurdity about Noel Canning.  It did not have to reach the "happen" and "intrasession" issues in that case, since it held the recess appointment was invalid because the pro forma session was a real session.  It decided those other two issues even though they were unnecessary to the result.  So why not have the Court reach those two issues again in this hypothetical case?  

Would the Supreme Court Overturn Noel Canning?Mike Rappaport

In the Wall Street Journal, Jed Rubenfeld argues that if President Trump were to use the Recess Appointments Clause to engage in an end run around the Senate confirmation requirement, the Supreme Court might overturn Noel Canning, which broadly interpreted the Recess Appointment power.

After reviewing Justice Scalia’s strong originalist dissent in Noel Canning, Rubenfeld concludes:

Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito all joined Scalia’s concurrence in 2014. Mr. Trump’s three appointees—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—pride themselves on being text-first originalists, and Scalia’s concurrence accords with this approach. Justice Ketanji Brown Jackson might also join the Scalia position if she believes Mr. Trump is improperly attempting to circumvent senatorial power.

Even Justices Sonia Sotomayor and Elena Kagan, who joined Justice Breyer’s majority opinion, might be tempted to flip the script. They could say that the Breyer findings about when a recess appointment would be legitimate were mere dicta, because these appointments weren’t.

From Rubenfeld’s mouth to God’s ears. 

Unfortunately, this seems too optimistic.  Noel Canning was decided by a five to four vote 10 years ago.  Would the Supreme Court really overturn the precedent so quickly?

I have little doubt that Thomas, who holds a weak view of precedent, would vote to overturn Noel Canning’s egregiously wrong decision.  I think Gorsuch would also be likely to vote to overturn it, since he has a relatively weak view of precedent and was not even on the Court when Noel Canning was decided.  And let’s assume that Alito would also vote to overturn.  That’s three votes. 

What about Roberts?  He has been reluctant to overturn precedents, especially where the justices are divided between conservatives and progressives.  So he is by no means a certain vote.  But if Jackson – who was not on the Court when Noel Canning was decided, has sometimes been sympathetic to originalism, and presumably dislikes Trump – were to vote to overturn Noel Canning, then Roberts might then join the effort.  Even without Jackson's vote, Roberts likes cases that make the Supreme Court look good with elites, and acting against what might be perceived as Trump’s recess appointment excesses might do the trick.

What about Barrett?  A former Scalia clerk, she might regard Noel Canning as egregious.  Moreover, as a law professor, Barrett wrote an article defending a weak version of precedent on the ground that justices often seek to overturn cases because they disagree with the jurisprudential approach of the decision rather than that the decision was simple error.  Barrett might view Noel Canning as nonoriginalist and therefore believe that overturning it as based on an improper jurisprudence – practice based living constitutionalism – was justified.  Thus, Barrett might be willing to overturn Noel Canning. 

Next is Kavanaugh.  I assume that he would think Noel Canning is mistaken but his recent Rahimi concurrence embraced a practice oriented approach where the text is not clear.  Since Noel Canning relies on practice, Kavanaugh might embrace it, unless he concludes that the text is unambiguous.  Kavanaugh does allow room for overruling constitutional precedents when the reasoning is egregious and when doing so would not upset reliance interests too significantly.  Since reliance is not a problem for recess appointments, it would seem Kavanaugh might support overruling it – but perhaps only if he believes the text is unambiguous.   

Finally, the two other progressives – Kagan and Sotomayor – seem unlikely to overrule Noel Canning, even though they probably would sympathize with constraining President Trump.  While Rubenfeld says they might deem Noel Canning’s constitutional interpretation of the Recess Appointments Clause to be dicta (since the Court struck the appointment down on another ground relating to pro forma sessions), the Court usually does not treat alternative grounds that took up large portions of the majority opinion to be dicta.  Thus, I think Kagan and Sotomayor are unlikely to vote to overrule.

So where does that leave us?  Three likely votes to overturn (Thomas, Gorsuch, Alito), three maybes (Roberts, Barrett, Kavanaugh), and one possible (Jackson).  My guess is that the Court is more likely to overturn the case than not, but only slightly so.  Call it a 55 to 60 percent chance of the case being overturned.  

Here’s hoping.

Mark Moller: Complete DiversityMichael Ramsey

Mark Moller (DePaul University - College of Law) has posted Complete Diversity: The Origin Story (64 pages) on SSRN.  Here is the abstract:

The complete diversity rule is among the most criticized rules in the law of federal jurisdiction. The product of Chief Justice John Marshall’s cryptic decision in Strawbridge v. Curtiss, the rule vests federal diversity jurisdiction only if all adverse parties on a complaint are citizens of different states. Complete diversity protects states’ control of state-law litigation.  But federal jurisdiction mavens have condemned the rule as a Marshall invention “out of whole cloth.”

This Article offers new historical evidence that proves the critics wrong. The complete diversity rule turns out to be a straightforward application of an ancient canon of construction, the canon against jurisdictional privilege. By rediscovering this lost canon, this Article builds a case for complete diversity’s compatibility with important strands of textualism. Although textualists disagree about the validity of substantive canons of construction, leading textualist-originalists argue substantive canons are legitimate if they (1) predate the founding and (2) are used to construe ambiguous statutes or statutes communicating technical legal content or (3) supplement constitutional structure. The canon against jurisdictional privilege has just these features—it (long) predates the founding, while protecting state courts’ role in our system of federalism. And applied to diversity jurisdiction, it resolves ambiguity in texts that communicate technical legal content. Strawbridge, it follows, is a canon-based decision that deserves textualists’ respect.

This Article’s historical evidence also raises major new questions about whether complete diversity is constitutionally required. Leading schools of originalism disagree about when canons can inform constitutional interpretation. But the canon against jurisdictional privilege would seem relevant to Article III’s original meaning under every major school of originalism. The canon thus raises the significant additional possibility that originalists should read the text of Article III’s diversity grant, not just Congress’s diversity statute, to reach no farther than instances of complete diversity.

This history does not necessarily doom statutes (like the important Class Action Fairness Act) that ditch the complete diversity rule. It does mean the originalist case for these statutes depends on identifying constitutional language that overcomes the canon on the constitutional plane.

UPDATE:  At Legal Theory Blog, Larry Solum says "An important paper from a meticulous and deep scholar. Highly recommended. Download it while it's hot!"