Birthright Citizenship, and What It Means to Be “Subject to the Jurisdiction” of the U.S.

Last week, Shikha Dalmia at Reason ran this highly disingenuous and disappointing policy rant against the push by several states to enact stronger laws to curb illegal immigration.  In it, Dalmia falsely claims that “automatic or birthright citizenship” is “a right enshrined in the 14th Amendment,” erroneously explaining that

the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.

Frankly, I don’t know how to explain these claims other than an outright intent to mislead.  In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating.

In my ongoing research into this area of law, I’ve come across some interesting cases shedding insight on the concern in British case law concerning persons born on British soil yet subject to the jurisdiction of a foreign sovereign.  Various European countries grappled with the problem of children born to citizens of foreign nations. In such instances, it is clear that children followed the citizenship of the father, but faith and credit to the jurisdiction of the country of birth was also given. Recognition of the proper jurisdiction to which a person was subject was important since the laws of one nation may purport to conscript putative citizens of a foreign nation into military service, potentially pitting those persons against his adopted country. See Prentiss Webster’s A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891), at 58-59. In this light, it is easy to see the concern against extending citizenship, the right to participate in the legislature, or of becoming the Commander-in-Chief of the United States military forces, to a person subject to the jurisdiction of a foreign power.  For example:

This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts.

Id. at 78.  Similarly,

The Revised Statutes, section 1993, declare children born out of the limits of the United States, whose fathers were or may be at the time of their birth, citizens of the United States, to be citizens of the United States.

This statute is held to mean that the legislation of the United States should not be construed so as to interfere with the allegiance which such children so born owe to the country of their birth, while they continue within its territory. Under this, if the French government should see fit to hold Verdelet as a citizen of France for reason of birth within its territory, it might do so, and the government of the United States could not interfere with such a claim, if made by the French government upon him.

Id. at 119. This appears to give insight into the understanding of the “and subject to the jurisdiction thereof” clause: U.S. law was not meant to interfere with the jurisdiction other sovereigns might have over persons born or naturalized in the U.S.  In a government of consent such as the United States, consent may not be presumed to be given, and thus no citizenship may be conferred, where another sovereign lays claim to the person’s allegiance.

Judge Vinson’s Extra-Judicial Order in the Individual Mandate Lawsuit

Orin Kerr reports that Judge Vinson, the federal judge who recently ruled ObamaCare’s individual mandate was unconstitutional, ruled on the DOJ’s motion seeking clarification of whether the court had meant to enjoin the Obama administration from rolling out ObamaCare pending appeals.  In granting the DOJ’s motion for clarification—clarifying that it did prevent the administration from enforcing the Act—the court also unexpectedly ruled:

To the extent that motion is construed as a motion to stay, it is also GRANTED, and the summary declaratory judgment entered in this case is STAYED pending appeal, conditioned upon the defendants filing their notice of appeal within seven (7) calendar days of this order and seeking an expedited appellate review.

What does this mean?  Basically, it means Judge Vinson is tweaking the DOJ’s appellate strategy and applicable procedural rules.  As Kerr notes, the ruling forces the DOJ to choose whether to “wait seven days, let the stay order lapse, then immediately seek a stay in the Court of Appeals,” or “go to the Court of Appeals now and seek an amendment to the stay order.”  (Apparently the DOJ has chosen the latter.)

But all this is surprising—and improper—because the DOJ did not move for a stay.  As Judge Vinson’s ruling itself noted, the Florida attorney general argued in its opposition to the motion for clarification that “[i]f the Government was not prepared to comply with the Court’s judgment, the proper and respectful course would have been to seek an immediate stay, not an untimely and unorthodox motion to clarify.”  Obviously, then, the opposing party understood the DOJ’s motion to be one for clarification only, not for a stay.

What this means is Judge Vinson order arguably violates procedure rules—including the really big procedural rule: the Fifth Amendment’s Due Process clause.  This is a problem because courts aren’t self-executing entities.  The nature of judicial power (as opposed to executive power or legislative power) is that it requires a claimant to first ask for relief before a court may act.  This is so for two basic reasons.  First, it is the nature of judicial power to decide only “cases” or “controversies.”  There can be no case or controversy until a claim or motion is formally brought before the court.  Second, there can be no due process unless all affected parties are notified of which of their interests may be impacted by the relief sought from the court, and given an opportunity to respond or oppose.

Here, both of these notions are undermined by Judge Vinson’s ruling.  As the ruling acknowledges:

The plaintiffs have asserted that the defendants’ motion to clarify is, “in fact, a transparent attempt, through the guise of seeking
clarification, to obtain a stay pending appeal.” See Pl. Resp. at 2. At certain parts in the pleading, the defendants’ motion does seem to be more of a motion to stay than a motion to clarify. Because the defendants have stated that they intend to file a subsequent motion to stay [Def. Mot. at 15] if I were to “clarify” that I had intended my declaratory judgment to have immediate injunction-like effect (which I
just did), I will save time in this time-is-of-the-essence case by treating the motion to clarify as one requesting a stay as well.

Simply put, whatever the true goals or motives of the DOJ as the moving party might have been, they are irrelevant if not plainly stated in the request for relief.  Time may be of the essence, but the rules of procedure provide mechanisms for immediate relief.  It is up to the parties to avail themselves of them.  Their failure to do so does not authorize the court to issue rulings beyond its jurisdiction.

[Update.  I failed to raise that Judge Vinson’s new ruling is also arguably a violation of the separation of powers doctrine to the extent it purports to trump the rules of appellate procedure.]

Taking the Offensive Against Unfunded Pension Liabilities

In his piece entitled Dodging the Pension Disaster, Josh Barro claims:

Short of defaulting on these debts, the only way states can eliminate unfunded pension liabilities is to fund them.

Not true.  There are several strategies available:

• Under Stone v. Mississippi (1879), a state legislature does not have the power to bind the decisions of the people and future legislatures.  A legislative act that threatens the public health and morals thus may be invalidated.  Debt obligations incurred in favor of public unions, then, might be struck down as void ab initio under this rationale.
• Some state constitutions make retroactive compensation, gifts, and debt obligations without a referendum void ab initio.  I’ve written at length about those limitations under California’s Constitution.
• Bankruptcy may be an option (though certainly a disfavored one).
• Under the logic of a recent California Court of Appeal, pensions are not a “debt.”  Instead, to avoid the effect of the state constitutional limits on incurring debts without a referendum, the court reclassified pension liabilities as “an actuarial estimate projecting the impact of a change in a benefit plan.”  If that rationale is upheld by the state Supreme Court, it suggests the projected “unfunded liability” does not constitute any present legally cognizable right or expectation of pensioners to that amount.  Thus, under the Fifth Amendment’s Takings Clause, state and local governments might be able to unilaterally cash-out pensions, offering “just compensation” in the amount of their present value.  (Credit to Tim Sandefur for this idea.)

Practically speaking, bringing any one or more of the above to bear upon public unions will help to bring them to the bargaining table.  Unions are running up against economic reality, constitutional and legal doctrine, and political will.   The hope is that once they appreciate this, they might be willing to negotiate more practicable retirement and benefits packages than the ones they secured while the economy was booming and voters weren’t looking.

Slippery Slopes and the Individual Mandate, Redux

Andrew Sullivan shares another link from Andrew Koppelman explaining why, under his definition of the term, there is no “slippery slope” problem with the Individual Mandate:

Frederick Schauer … showed over 25 years ago that any slippery slope argument depends on a prediction that doing the right thing in the instant case will in fact increase the likelihood of doing the wrong thing in the danger case. If there is in fact no danger, then the fact that there logically could be has no weight. For instance, the federal taxing power theoretically empowers the government to tax incomes at 100%, thereby wrecking the economy. But there’s no slippery slope, because there is no incentive to do this, so it won’t happen.

I responded to Koppelman’s argument previously, but since he’s still peddling the argument, I suppose I ought to continue opposing it.  The first problem is Koppelman’s bold and unsubstantiated minor implied premise that “there is in fact no danger” that Congress would ever mandate the eating of broccoli.  There is no meaningful comparison between this present political unlikelihood, and the practical impossibility that Congress would ever impose a 100% income tax.

More importantly, the income tax amendment is not limited in the way the Commerce Clause is.  A better comparison would be to a modified, hypothetical income tax amendment that limited Congress’s power to lay and collect taxes on income “at the maximum rate of 10 percent gross income,” for instance.  When Congress passes a law imposing an income tax of 11%, objectors would insist that allowing Congress to violate the 10% Constitutional upper threshold might ultimately lead Congress to impose a 100% income tax.  Koppelman, then, would dismiss these objections, citing the unlikelihood of Congress ever imposing a 100% tax, stating “If the Supreme Court is going to invent new limits on the legislature, it should do so in a way that has a real chance of preventing actual abuses. Otherwise it is hamstringing the legislature for no good reason.”

But Koppelman would be ignoring the reason the hypothetical Constitutional income tax amendment sets the 10% upper limit.  It is not, as Koppelman implicitly suggests, because 11% is necessarily the magic number that would break the back of the nation.  Instead, it is because that magic number presumably is somewhere beyond 10%, and, more to the point, because Congress needs some defined limits on its power such that it doesn’t exceed that back-breaking, democracy-demolishing limit when a temporary surge of political will inevitably occurs.  To suggest, then, that the courts ought not “hamstring” Congress’s discretion is not just an academic critique of slippery slope argumentation; it’s an argument for unqualified legislative supremacy.

And we’re still not done.  Consider this quote from Austin Frakt, also shared by Sullivan:

The government isn’t holding back from mandating broccoli consumption because there is no legislative precedent regulating an “inactivity.” It’s held back because there’s simply no incentive to mandate broccoli eating. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.

Imagine it’s 1942, and you’re arguing before the Supreme Court on behalf of the U.S. government that Secretary of Agriculture Wickard is constitutionally authorized to restrict farmer Filburn’s purely private economic activity of growing wheat for his own family’s consumption.  When the Court asks whether this drastic expansion of the Commerce Clause could lead to other purely private activity, such as whether or not to buy health insurance, you respond:

“The government isn’t holding back from mandating purchasing health insurance because there is no legislative precedent regulating private economic choices.  It’s held back because there’s simply no incentive to mandate purchasing health insurance. If there were, Congress would have already considered it, or ought to. In that case, one need not appeal to a slippery slope, though one certainly could. That is, it’s superfluous.”

The fallacy that Koppelman and Frakt commit, then, is assuming what Congress may or may not have an “incentive” to do.  Jurists and commentators in the 1940s could hardly have dreamed the scope and power of the contemporary federal government and its regulatory arm.  It is either a failure of imagination, or disingenuous, to suggest there’s nothing bad that could happen by radically expanding Congress’s authority to regulate all private economic choices, even to the level of whether to make a choice in the first event.

Finally, slippery slope arguments are really an appeal to the Golden Rule:  “Do not distort the law to do this thing that I find repugnant, even if you do not find it repugnant; for if you do it, the distorted law may later be made to work a thing that even you find repugnant.”  It’s an appeal to common decency:  “Distorting the law for political objectives is bad.  Don’t you see?  Here, trying putting the shoe on the other foot.”  The slippery slope, then, is something of a gentle, academic reminder to those who may have momentarily lost sight of that rule.  If your response is then to stick out your chest and say, “nah, nothing bad’s gonna happen to me; I’ll go ahead and have my own way,” then we’ve taken the gentlemanly art of persuasion as far as it has means to go.

Are Thoughts “Commerce”?

In a wonderfully titled post over at Legal Insurrection, William Jacobson worries about the implications of this passage from Mead v. Holder, upholding the Obamacare mandate:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

This is dangerous reasoning.  There is a world of difference between choices and actions.  It is why, today anyway, there is still no such thing as thought-crime.  Thoughts are not legally actionable.  Intentions, until now, could not be prosecuted.  As Jacobson observes:

Our thoughts are now actions.  There literally is nothing the federal government cannot regulate provided there is even a hypothetical connection to the economy, even if the connection at most is in the future.

As I’ve written before, Obamacare advocates seem far too comfortable with dismissing legal limits and relying solely on political limits.  Historically, however, this comfort only tends to last until legislation starts moving in the opposite direction. 

The Constitution presupposes Natural Law, which in turn presupposes God

Apologies for reposting this John Adams quote from American Creation, but I’m tucking it away as part of my research on constitutional presuppositionalism:

"To him to believes in the Existence and Attributes physical and moral of a God, there can be no obscurity or perplexity in defining the Law of Nature to be his wise benign and all power Will, discovered by Reason.  A Man who disbelieves the Being of a God, will have no perplexity in defining Morality or the Law of Nature, natural law, natural Right or any such Things to be mere Maxims of Convenience, to be Swifts pair of Breeches to be put on upon occasion for Decency or Conveniency and to be put off at pleasure for either."

— Letter to Thomas Boylston Adams, March 19, 1794, quoted in The Founders on Religion:  A Book of Quotations, edited by James H. Hutson (Princeton:  2005), pg. 132.

Kochan on Equality

Chapman law professor Donald J. Kochan has a new essay available on SSRN entitled On Equality: The Anti-Interference Principle.  From the abstract:

[T]his Essay seeks to summarize the general equality concept, and propose that the legal discourse on equality center on a requirement that governmental power must protect and respect equal treatment and opportunity, unconstrained, not equal outcomes. It argues that, to do so, equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities to others. Absent avoidance of harm – special designations, privileges, or classifications necessarily interfere with equality in a manner that consequently violates the Anti-Interference Principle. Such actions necessarily interfere with equality. As such, if we are serious about respecting equality, such interference actions should be avoided.

Here are a few of my observations after reading the piece.  Further explaining the anti-interference principle, Professor Kochan says:

[A]t the very least, the [Equal Protection] Clause should be interpreted to mean that where one group or class is granted a privilege or immunity, another group should not be denied the same.  The two clauses in the Fourteenth Amendment—privileges or immunities and equal protection—must be read together as supporting a general constitutional recognition of an equality concept.

. . . .  The government has created far too many privileges, but once they are created, they should be available for all people. Equality demands it. Grant nothing beyond basic liberty if you will, but once we grant some privilege or immunity then it should be made equally available without special beneficiaries.  Favoring some over others would violate the anti-interference principle.

(Italics mine.)  I’m skeptical as to the interpretive accuracy of the first paragraph.  The Equal Protection Clause grants protection of rights, but does not itself contain a substantive component.  I cannot say I’m thrilled with the advent of a new retroactive interpretive principle that would further subvert the original meaning of the Fourteenth Amendment, even if toward beneficent ends.

The italicized language in the second paragraph suggests an appealing idea—i.e., that the government’s grant of entitlements ought to force the government to ensure those entitlements are equally applied.  In the abstract, I like this for the same reason I reflexively like the proposed REINS Act, which would force Congress to approve all bureaucratic rule-making with an expected annual economic impact of $100 million or more.  If the government is going to act, it has to do its due diligence and follow-through.

In this regard, I would have liked to see an application of how this might work with respect to licensing laws.  Instead, Professor Kochan references the California same-sex marriage legal battle.  However, that issue involves too many strands of the debate over the shared borders between law and culture.  Thus, it’s not terribly useful in a discussion of an equality principle.  For example, this passage overlooks those questions altogether:

Creating an institution like marriage yet excluding segments of the population from accessing the institution and all the benefits (and burdens) available in it is differential treatment not based on a preference to avoid harm, or precluding someone from a benefit because they have done something legally wrong, but instead based on some  artificial classification based on a preference of giving more to some over others.

First, marriage is fundamentally a social institution, not a legal institution.  Thus, to suggest government “created” the institution is incorrect.  Second, and relatedly, the suggestion that the definition or inner workings of marriage improperly involves “artificial classifications” misses the point.  From a purely legal standpoint, marriage is altogether arbitrary.  It is an outworking of human nature, not legal necessity.  Legal recognition of marriage is just that: the recognition of an institution borne of the people those laws mean to govern.  As I previously explained for the law to change or add to that institution is the tail wagging the dog, a breach of the treaty between law and society.

Thus, I also would have liked to see some application of the non-interference principle and what constitutes “unacceptable negative externalities” to more vexing examples of morals legislation, such as suicide, euthanasia, animal cruelty, bestiality, prostitution, polygamy, adult incest, public nudity, profanity, stem cell research, human cloning, and so on.  The essay quotes J.S. Mill, stating that “the individual is not accountable to society for his actions.”  Thus, one is left wondering whether the anti-interference principle is essentially just another way of describing libertarianism.

New Deal Originalism

Alex Tabarrok snarks at Laurence Tribe’s attempt to justify the individual mandate by the “original” meaning of the  New Deal:

Quite so; but what Tribe forgets is that the constitution is a living document. The constitution’s meaning is not fixed by the New Deal. The constitution evolves to meet the needs of the people in the here and now. Tribe’s interpretation of the commerce clause, which may have been appropriate for the age of steel and iron, is not necessarily right for the age of genes and bytes. We are fortunate, the constitution lives.

But what I can’t figure out is the answer to this question:  Who is more resistant to amending the Constitution, liberals or conservatives?  On the one hand, liberals are more fond of social and legal change than conservatives.  On the other hand, liberals have already embraced the “living constitution” mechanism to get what they want out of the small-c constitution without actually amending the big-C Constitution.  Now that the Constitution is “more than a hundred years old,” it does get harder to defend originalist interpretation in the progressive political arena.  Much to its defenders’ dismay, it can’t stand up to political reality forever.  Those defenders would do well to propose amendments that would restore the big-C Constitution’s relevance to modernity.

It seems to me that it’s liberals who have more to gain by not amending the Constitution.

The Bill of Pleasures

E.D. Kain thinks the right to own advanced small arms is “silly.”  True, most people who use advanced small arms do so for pretty trivial and even gratuitous things, like shooting soda cans in rapid succession.  Even hunting, perhaps necessary for personal survival at some points in U.S. history, is properly regarded as mere pleasure or sport than the sort of fundamental liberty that we enshrine in a constitution.  When you come right down to it, Americans haven’t had the need to use guns for the true purpose the Second Amendment contemplated since, ever, basically.  As E.D. concludes:

I think it’s a lot more about pleasure than about liberty in cases like this.  Nobody needs a thirty-round magazine. But it’s a lot of fun to fire off that many shots without reloading.

But I think this betrays a certain presumption—fundamentally disputed by many, including me—that we ought to assume the perpetual continued peaceful coexistence of government and free individuals.  The right to bear arms, like the other rights in the Constitution, was not put there idly. The reason any individual right or government limitation is inserted into a constitution rather than a mere legislative enactment is as much for structural reasons as it is for the sheer gratuitous pleasure of exercising liberty.

Our Founders did not take for granted, as we do today, the stability of our political order. We don’t continue to honor the Second Amendment to protect a liberty interest in cutting down soda cans. We honor it because it is absolutely essential to the galvanizing idea underlying our political order: that our government serves by and through the people’s consent, and no version of that government could ever be deemed to have the power to strip the people of their means to exit that political order upon [the people’s] declaration of a long train of violations of their natural rights.

Again, our Constitution was not based upon the presupposition that E.D. appears to hold—i.e., that there is no longer cause to reserve a means of exit. If we want to give rise to this new assumption, we’d either need to convene a constitutional convention, or abandon the idea of operating under a written constitution.

[I posted in a rush, and forgot to come to the point.  Modern liberalism might be said to comprise two mutually reinforcing ideas:  (1) trusting government to organize human efforts to bring about greater pleasure, and (2) treating rights as mere “pleasures” that can be regulated by government.  Repeat as necessary.  I won’t say there’s nothing to be said for arguments upon these premises, only that these premises are not those upon which our Constitution is based.  Thus, there’s really no traction, within a framework that accepts these premises, in talking about whether arguments about the Second Amendment are “silly” or not.]

Arizona Looks to End Birthright Citizenship

Though I previously threw in my support for the basic idea underlying the DREAM Act, I support the proposal in the Arizona Senate Judiciary Committee to deny birthright citizenship.  In fact, my post on the DREAM Act should indicate, the two laws would be complementary:  Illegal immigrants should not be able to count on their unlawful entry and occupation in this country being rewarded with de facto (and arguably de jure) citizenship of their children; but neither those children or the communities who have invested in them should be so grievously harmed by alienating those children from their communities. 

Besides—and this is probably enough reason for me—there would be enormous value to airing out the meaning of the Fourteenth Amendment: 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

As my constitutional law professor John Eastman testified before the senate panel:

"Suppose a tourist from Great Britain was here visiting on a temporary tourist visa. He is subject to our jurisdiction in that he has to follow our laws while here, but he is not subject to the jurisdiction in broader sense that he could be drafted into our army or that he is allowed to vote while here," Eastman said. "There are two different meanings of subject to jurisdiction. This bill is simply trying to define what ‘subject to the jurisdiction’ means."

One of these days, I will get around to posting the results of my research on the Natural Born Citizenship and the Birthright Citizenship clauses.  The universal concern in western jurisprudence throughout the 18th and 19th centuries had to do with complete jurisdiction:  the nominal jurisdiction imposed on those merely passing through was not enough to impose sovereignty on a person or that person’s offspring.  This was the understanding of the “subject to the jurisdiction thereof” language in the Fourteenth Amendment as debated in Congress (though James Ho—like Eastman, a Justice Thomas clerk—disagrees).