Archive for the ‘Law’ Category

Over on a distant corner of the Internet, Michael Ramsey offers an interesting insight into his law class’s legal textbooks and the case of Korematsu v. United States from an originalist point of view.  His post is interesting as it takes to task the orthodox view that the case was an Equal Protection case gone awry.  I find this orthodoxy curious, in no small part because I’ve never thought of Korematsu as having a great deal to do with Equal Protection at all.  That said, I find the author’s post equally curious because, although he quickly discards Equal Protection as a “correct” answer on technical grounds (by its terms, the Equal Protection Clause of the 14th Amendment doesn’t apply to the federal government), he supplies an argument against the Court’s decision that uses a form of Equal Protection masquerading as Due Process, and somehow calls that view “originalist.”  Perhaps it’s good that I’m not one of his students, because that line of reasoning makes no sense to me.  In my view, Korematsu is a Due Process case, plain and simple.

The Fifth Amendment states that “No person shall be … deprived of  life, liberty, or property, without due process of law.”  It’s incontestable that the Japanese-Americans rounded up during World War II would qualify as “persons” under this amendment; the people in question were in the country lawfully, and many were US Citizens.  It should be equally unthinkable that placement into internment camps would be anything other than a deprivation of liberty.  Unlike its cousin in the 14th Amendment, the Fifth Amendment applies with full force to the actions of the federal government.  The only relevant question, then, is whether the Japanese-Americans were afforded Due Process; a prospect that seems unlikely at best.

Although the Constitution doesn’t spell out a precise definition of Due Process, it has several basic contours that are reasonably well accepted.  In general, Due Process requires that a person be charged against the laws of the United States, enacted by Congress under its Article 1 Section 8 authority.  Due Process also normally requires the government must show individualized cause for why a person should be confined; normally by use of a trial.  In a criminal context, Due Process also requires compliance with the protections of the Fifth and Sixth Amendments, but this was not fundamentally a criminal case.

For the actions taken by the government during World War II, the second criteria — individualized cause — was entirely missing.  In establishing internment camps and exclusion zones, the government issued a simple decree that applied to all persons of Japanese descent living in the United States.  Under that decree, all such persons could be obligated to report for confinement simply due to their ancestry.  The deprivation of liberty was made without reference to individuals at all.

What’s more, the exclusion orders, which would operate to remove Japanese-Americans from their homes, would seem to be a 4th Amendment seizure of either persons or property without probable cause.

Finally, setting aside the text of the Constitution and turning to its history, Korematsu is still very hard to defend.  From the viewpoint of the British Crown, the Rebels were in many ways what the government believed the Japanese-Americans might be during World War II: A seditious force.  The difference, of course, is that the Rebels actually were a seditious force, whereas the Japanese-Americans were not.  Regardless, the Founders bristled at efforts by the Crown to round up and silence their dissenting voices.  Arbitrary arrests, ad-hoc procedures, and other evils conceived by a government to subjugate a people perceived as disloyal animated the Founders’ inclusion of specific protections for the people against their new government.  It isn’t logical to imagine that the Constitution, which includes protections for the Founders’ actually seditious behavior, would not protect the Japanese-Americans who weren’t being seditious at all.  That history, of course, predates Equal Protection by nearly a century.

It seems, then, that there is no shortage of originalist reasoning against the Korematsu decision both from the Due Process Clause and from the Constitution’s history.  Equal Protection need not apply.


One More Myth about the Debt Celing Disaster

   Posted by: Robert

I was recently linked to an article written by John Lott seeking to bust certain myths being talked about in the media regarding the debt ceiling.  His article, overall, accomplishes the goal he sets out to accomplish.  In busting his first myth, he tells us that “The 14th Amendment to the Constitution requires that the debt payments come first before any other spending,” and continues that logic through at least one more myth.  Unfortunately, the 14th Amendment says no such thing.

What the 14th Amendment says is that “The validity of the public debt … shall not be questioned.”  By their plain meaning, these words say nothing about the debt ceiling (which didn’t even exist at the time) or how the country’s debts will be paid.  They say only that the validity of the debt shall not be questioned.

To explain what those words mean, consider an analogy.  An American family with a mortgage and credit cards has used tools of debt to build up a lifestyle at the edge of — or beyond — their financial means.  The charges are accurate: the student loans covered earning a degree; the mortgage bought a house; and the credit card bought furniture, electronics, other items, and maybe even a utility bill or two.  Out of cash, and with credit cards at their limit, the family receives a bill in the mail.  The family now has a “crisis” to work through:  How do they handle the bills?

One choice that the family has is to pay some bills right away and put off others until later.  Another choice is to find new sources of debt to cover the bills.  Yet a third choice would be to throw the bills in the trash and, when the bill collectors call, tell them you don’t actually owe that money for some reason or other.

The 14th Amendment takes Option 3 off the table, but leaves the other two alone.

The Public Debt Clause was written at a time when the country had just amassed what was then a significant amount of public debt.  The Clause was written to provide certainty as to how the government would manage those obligations.  What it said is that the United States would not tear up its bills.

But other than telling its creditors to pound sand, the government can do nearly anything it wants with its debt.  A great many proposals have already made their way into the debate, some of which are more fact based than others.  Unfortunately for the author, thinking that the Constitution has already solved the problem falls squarely into the “others” category.  Our looming “disaster” will have no such easy answer.


4th Amendment on Life Support in Indiana

   Posted by: Robert

May 12th was a bad day for “the right of the people to be secure in their persons [and] houses” in Indiana.  In a ruling by the Indiana Supreme Court, the Indiana justices have taken away the historic right of every individual to resist unlawful arrest by police.  In so doing, the Court takes what should have been a relatively modest case and turns it into a significant watershed of constitutional law.  The ruling is wrong on the law, and inconsistent with American values of liberty.

“The majority tethers its abrogation of [the right to resist unlawful arrest] on (a) modern developments that have diminished the dangers of arrest at common law (e.g., indefinite detention, lack of bail, disease-infested prisons, physical torture), (b) the desire to minimize the risk of the level of violence and risk of injuries, and (c) the rights of the police to enter a home even without a warrant under certain circumstances.” (Dickson, J. Dissenting) None of these, however, are appropriate reasons to cast aside centuries of legal history and infringe upon constitutional values.

The majority cites five modern developments that have diminished the aforementioned dangers from arrest.  These developments are “(1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies.”  It is noteworthy that modern developments 1 and 2 are exactly as modern as the Fourth Amendment — bail is available under the Eighth Amendment1, prompt arraignment under the Sixth Amendment((the accused shall enjoy the right to a speedy and public trial)), and the need for probable cause under the Fourth Amendment itself2 — yet the founders saw fit to include the protections of the Fourth Amendment anyway.  Modern development 3 is, at best, a remedy to which is only meaningful after the police have acted unlawfully and only if the arrestee is later charged.  Modern development 4 lacks any level of constitutional character, which would force arrestees rely on voluntary police procedures to vindicate constitutional rights.  Finally, it has been recently argued3 that modern development 5 is not sufficient to cure the constitutional defect of unlawful police conduct, particularly in light of the doctrine of qualified immunity.

Regardless of the supposed benefits of these modern developments, it should also be noted that each and every danger listed is addressed and prohibited by a provision of the Constitution.  Indefinite detention is prohibited by the Fifth Amendment4 and by Article 1 Section 9 of the Constitution5.  The lack of bail, as already mentioned, is prohibited by th Eighth Amendment.  Disease-infested prisons have long been held as a violation of the Eighth Amendment6.  And the torture of prisoners is among the precise evils that the founders wrote the Eight Amendment Cruel and Unusual Punishment clause to prohibit.  If the right to resist unlawful arrest was merely a tool to prevent the aforementioned dangers, then the right should never have survived ratification of the Constitution.

The desire to minimize the risk of injury has become a common theme in modern Fourth Amendment jurisprudence.  The general argument has been that police need the authority and capability to control a situation, and courts reviewing police action should generally err on the side of allowing too much, rather than too little, freedom for law enforcement to act.  As I have thought in prior cases and continue to believe now, that analysis is exactly backwards.  The Bill of Rights was written to provide a number of safeguards for the people against the police.  If the police are generally free to do as they please, then constitutional protections are meaningless.  While preserving the safety of the men and women who serve in law enforcement is vitally important, I cannot believe that it is more important than preserving the bedrock liberties upon which our nation was founded.

Finally, the Court points out that police can sometimes enter a home even without a warrant.  This is both true and irrelevant.  This case is about the police acting unlawfully.  If the police had a right to enter the house, then entering the house would not have been unlawful, but resisting the police would have been.  If the Court believes that the arrest in this case was lawful, then they should say so.  What they have done instead is use the possibility that the police may act lawfully in some other case as a basis to give the police a general right to act unlawfully.

The Constitution was designed to provide the government sufficient authority to keep the people safe, while simultaneously keeping the people safe from the government.  Nothing in the history of our founding suggests that the exclusive protection against police misbehavior is to “tell it to the judge.”  Indeed, by then, it’s already too late.  The right of the people to resist an unlawful arrest has been recognized since the 13th century and has been reaffirmed as “an undoubted right” by the US Supreme Court as recently as 1948. (United States v. Di Re)

The weight of history and the importance of preserving liberty are far more compelling than the weak arguments made by the Indiana Supreme Court in casting aside the right to resist unlawful arrest.  I believe Justice Dickson’s dissent is correct.

  1. Excessive bail shall not be required []
  2. no Warrants shall issue, but on probable cause []
  3. Herring v. United States, Ginsburg, J. Dissenting []
  4. No person shall be… deprived of … liberty … without due process of law []
  5. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. []
  6. nor shall cruel and unusual punishment be inflicted []

Obama Signing Statement Wrong About Advisors

   Posted by: Robert

News is picking up today of the signing statement issued by President Obama in regard to his signature of the appropriations bill passed after much congressional debate.  The statement, posted on the White House website, contains an interesting declaration in which Obama makes clear his intention to continue paying his czars despite Congress declaring otherwise.  Without saying it directly, the President intimates that keeping his czars off the payroll would be a violation of the Constitution.  He is perfectly mistaken.

In his statement, President Obama writes:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President.  The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority.  The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.  Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

Sadly, much of this statement is misleading or false.

To begin with what is true, the President is right that he has a “well-established authority to supervise and oversee the executive branch.”  That is, of course, his primary job.  He is also correct that he has the authority “to obtain advice in furtherance of this supervisory authority.”  Indeed, the Constitution guarantees that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments.”

The sleight of hand Obama then tries to perform is to blend the line between “officer” and “advisor”.  Under the Constitution, an “Officer[] of the United States” is an individual who has been appointed “by and with the Advice and Consent of the Senate.”  In other words, the President has the right to get advice from his cabinet.  However, it is not the cabinet that is at issue in this legislation, and the President’s attempt to lump the people targeted by the provision in with his cabinet is disingenuous.

Section 2262 of HR 1473 reads:

None of the funds made available by this division may be used to pay the salaries and expenses for the following positions:

(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change.
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.

None of the positions listed have gone through the confirmation process.  They are, by definition, not “Officers of the United States.”  Their jobs are nowhere guaranteed by the Constitution, nor is their pay.  The President has no right, under the Constitution, to their advice.

The President, of course, is free to consult with whomever he chooses, including with the four individuals listed in HR 1473.  The taxpayers, however, have no obligation to pay for the advice the President receives.  Those four individuals are more than welcome to continue advising the President for free, and Obama is certainly welcome to pay them out of his own pocket.  But it is no longer permissible for those individuals to receive compensation for salary or expenses from the US Treasury; and the President is wrong if he believes otherwise.


Washington’s General Welfare State

   Posted by: Robert

Over in the Wall Street Journal’s opinion section, Randy Barnett and David Oedel offer an interesting take on how ObamaCare might be treated under the General Welfare Clause of the Constitution.  Their basic argument seems to be that tying compliance with ObamaCare to federal funding of Medicare is coercive to the point that it is unconstitutional.  Along the way, however, they enter into an interesting discussion about the General Welfare Clause and why, in their view, such special deals as the Louisiana Purchase and the Cornhusker Kickback should also be found unconstitutional.  I’m not sure I agree with their reading of the Clause, but the implications of their reading strike me as being nothing short of remarkable.

Their basic argument against the Cornhusker Kickback follows, essentially, from this paragraph:

Article I, Section 8 of the Constitution gives Congress the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” The problem with the Cornhusker Kickback was that the citizens of 49 states would have had to pay for Nebraska’s Medicaid exemption—without getting anything in return. The special exemption exceeded Congress’s constitutional authority because it did not serve the “general welfare”—meaning, the welfare of the people of each and every state.

Put another way: If Congress spends to the benefit of some parties over others, then they have failed to act in accordance with the general welfare, so their spending is unconstitutional.

Political payoffs to buy the votes of congressmen with taxpayer dollars are not the only times we see government acting to the benefit of some parties over others.  Earmark spending follows this model as individual politicians write funding for particular projects into federal spending bills.  Much of this spending is of doubtful value to anyone but the people or organizations receiving the taxpayers’ money.  Almost none of it promotes general welfare.

Barnett and Oedel go on to note that “Normal federal spending occurs irregularly throughout the U.S. If Nebraska gets a military base, for example, making the case that it serves the “common defense and general welfare of the United States” is easy, since citizens of other states benefit from the base.”  What they seem to gloss over, however, is that Congress doesn’t build military bases under the General Welfare Clause.  The Article 1 Section 8 powers to “support Armies” and “support a Navy” are the normal (and appropriate) vehicle for military spending.  There is no Article 1 Section 8 power to fund the YMCA.

As Barnett and Oedel continue, “[t]he same general-welfare story can be told about virtually all federal spending programs, which is why Chief Justice William Rehnquist said in [South Dakota v.] Dole, “[i]n considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.””  However, the courts are not the lone arbiters of constitutionality, and the mere fact that a court does not strike something down does not answer the constitutional question.  The structure of government, our elected representatives, and We the People all have an obligation to ensure that the government stays within its constitutional limits.

Make no mistake, most earmarks are unconstitutional.  Few have anything to do with the General Welfare, in addition to other constitutional infirmities.  The Cornhusker Kickback and Louisiana Purchase are only the most infamous recent examples.  Barnett and Oedel provide one more reason to be suspicious of earmark spending, and one more reason that the people need to be forever vigilant about how their representatives try to spend America’s money.

Congress is about to hand Americans another case of government overreach.  It appears that the House of Representatives has just approved the cutely named CALM Act, which now makes its way to President Obama for signature.  The bill, in essence, requires the FCC to enact regulations to control the volume of commercials on television to ensure that they are not too loud.  That the government has spent time on such a venture is entirely ridiculous.

To begin with the pragmatic question first, why in the world is the government wasting time on a bill like this?  When commercials are broadcast louder than the shows that are otherwise airing, it’s safe to say that what results is a minor annoyance at best.  I’m not someone who watches TV often, but I have noticed some commercials are louder than others.  Usually, though, it’s not too bad, and the thought of reaching for the remote never even crosses my mind.  Perhaps the most awful effect coming from the volume of commercials is that it wakes up people who fell asleep during a television show.  National security has never been compromised, and nobody has ever been hurt, because a commercial was louder than the TV show during which it aired.  The problem is, in sum, a minor trifle of an annoyance.

The government’s effort to “fix” this non-problem is likely to create some actual problems to be solved.  TV stations will, of course, be required to comply with whatever regulation the FCC ultimately decides to adopt.  It is likely that networks will be required to invest in hardware and software to analyze the broadcast volume of television shows and commercials to ensure that they are properly equalized.  This hurts small broadcasters who likely have much better things to spend that money on, as well as consumers who will ultimately be responsible for picking up the tab.

In the end, it’s impossible to see this bill as anything other than another example of government intervention into the everyday lives of Americans.  This legislation, quite simply, serves no greater purpose.  It is most unfortunate (though not surprising) that it was passed without a single recorded vote in either the House or the Senate; underscoring the triviality of the bill as well as the careless disregard with which Congress is willing to enact such legislation.


The Constitution on Earmarks

   Posted by: Robert

Over in the New York Times, David Herszhenhorn proves that he needs only a paragraph to declare his misunderstanding of both the debate over earmarks and the Constitution:

At the same time, the renewed push against earmarks highlighted a potential conflict between the calls to eliminate the spending items and demands by many Tea Party supporters for greater fidelity to the Constitution. It is the Constitution, after all, that put Congress in charge of deciding how to spend the taxpayers’ money. In pledging not to let individual lawmakers designate federal money for local purposes, the anti-earmark contingent is in effect ceding more power to the executive branch over how taxpayer dollars are spent, presumably not the outcome desired by the new crop of grass-roots conservatives.

His statement is apparently meant to tell conservatives that a win on the issue of earmarks is really a loss for the Constitution.  His argument is built on a rather silly looking straw man and his conclusion is, constitutionally speaking, insane.

Beginning with the straw man, it appears as if the author is generally assuming that whatever money is spent on earmarks will be spent by the government in one way or another.  In his view, Congress is going to authorize the same amount of money one way or another, with the only question being who in the government is going to have the authority to decide how to spend it.  Were that to be the actual argument, it may indeed be wise to earmark money as a way to impose some constraints on the President.  The debate, however, isn’t about that.

Earmarks have been jumped on by liberals and conservatives alike as examples of government waste (at best) and corruption (at worst).  The problem isn’t that Congress is choosing where to spend the money rather than the President; the problem is that the government is deciding where to spend that money rather than leaving it in the hands of the taxpayers who earned it.  The goal and point isn’t to change how federal bureaucrats spend the money, it’s to stop the bureaucrats from spending the money at all.  The job isn’t done until the number of dollars spent by the government goes down.

On the matter of the Constitution, it actually specifies a lot less about who gets to decide how government money is spent than the author imagines.  The Constitution, of course, gives the job of creating a budget to Congress, and the President is bound by any budget that Congress is able to pass into law.  The Constitution, however, offers no particular level of specificity that Congress must meet in order to have satisfied its duty.  As far as the Constitution is concerned, it is enough for them to create a budget that says the President has some number of dollars to spend in the furtherance of his duties.

What the Constitution is very specific about, however, is the list of categories for which money may be spent.  These categories are not defined by Congress, but are actually written into the Constitution itself.  Congress may, of course, add some specificity to the given categories, but they may not, under the Constitution as written, go outside of what the Constitution says.  It’s hard to find a single earmark that fits within this constitutional framework.  Put more bluntly, it’s hard to find a constitutional earmark.

Of course, Congress hasn’t cared too deeply about the constitutional limits on their spending power for quite some time.  Both major parties have a long history of using earmarks to pay off political favors, and no incumbent is eager to dismantle a system which tends to add to their power.  To make matters worse, spending decisions are largely immune from challenge in court, leaving few checks or balances on earmarking.

The American people, on the other hand, care a great deal about what the Constitution has to say.  While it doesn’t explicitly say “No Earmarks,” it also doesn’t provide the government any authorization to pay political debts with the people’s money.  Whether the dollar value is high or small, earmark is spending mostly unconstitutional waste that needs to be stopped — stopped in Congress, stopped in the White House; stopped everywhere.

Reporting on the matter so far is sparse, but it appears that there may be an activist federal district judge in Oklahoma who has decided to begin the work of frustrating the will of the people.  The case involves an Oklahoma ballot measure to amend the state’s constitution to clarify what lines of authority the state’s courts are allowed to use in performing their judicial function.  The amendment language, among other things, calls out Sharia law as being one line of authority that Oklahoma’s courts are to specifically avoid using.  A Muslim activist sued, prompting Chief Judge Vicki Miles-LaGrange, appointed by Clinton in 1994 to the U.S. District Court in Oklahoma City, to issue an injunction against the measure pending a hearing on its constitutionality under the Federal Constitution.  Far from enjoining the law pending a hearing, this lawsuit should have been dismissed as frivolous without so much as a second thought.

The Oklahoma International Law Amendment of 2010 amends the state constitution with the following language (emphasis added):

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

It is difficult, if not impossible, to mistake the clear purpose of this language.  The people of Oklahoma want their courts deciding cases based on US law.  Though much more specific, this is no different than the thrust of the Federal Constitution which limits courts to cases “arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” (US Const. Article III)

The argument apparently being made against the Oklahoma amendment is twofold. The complaint apparently alleges that the amendment stigmatizes the Muslim religion and would invalidate the complainant’s will, which is based on Sharia law.  In reality, the Oklahoma amendment does no such thing.

The fact that the amendment calls out Sharia law has nothing to do in any way with religion, and certainly does not stigmatize Muslim.  The amendment cites certain authorities of non-domestic character which judges are meant to specifically avoid, including “international or Sharia Law.”  Both international (sometimes called foreign) law and Sharia law are notable in two important ways.  First, international law and Sharia law differ from traditional US law in a variety of important ways, which could easily lead a judge to rule in a way contrary to the legal traditions of America.  Second, and probably more importantly, actual judges deciding actual cases have used international and Sharia law to reach results which are (at least arguably) contrary to the letter and spirit of US domestic law.  Were Sharia law not being used to (arguably) circumvent US law, there would have been no reason to name it in the amendment.

As far as the complainant’s will is concerned, his belief that the amendment would cause it to become invalid seriously misunderstands the plain meaning of the amendment.  A will, in basic terms, is a legal document that establishes instructions for how to dispose of an estate following a person’s death.  Courts enforce wills though a body of US domestic law known as Probate.  Probate law, though not perfectly so, is largely indifferent to the specific instructions provided in an individual’s will and focuses, instead, on providing a general framework for executing the instructions, whatever they may be.  When courts interpret wills, probate law generally requires that wills be evaluated on their own terms.  Thus, when presented with a Sharia will, a court “adher[ing] to the law as provided in … Oklahoma [s]tatutes” must consider the will as a valid instruction set, irrespective of its religious backing, as long as it doesn’t conflict with with probate law.  Of course, if there is a conflict, probate law must win; but that’s true of all wills, not just those inspired by Sharia principles.

The American people are well within their right to insist that judges follow, first and foremost, US domestic law as defined by constitution, statute, and American legal tradition.  The people of Oklahoma have identified two bodies of non-domestic law which are of special significance to today’s legal landscape because real judges in actual cases have begun using them in ways contrary to domestic law.

Because the Oklahoma amendment is perfectly justifiable on non-religious grounds and does not interfere with religious practice, there is no reason to think it may be unconstitutional.  The lawsuit against it should be dismissed.

I was recently linked to an article by Ann Coulter which offers her take on the legal history of the citizenship of illegal alien born babies under the 14th Amendment.  Her article is interesting, and quite possibly the most reasonably presented argument I’ve seen from her.  The essence of her article is to point out that anchor babies — children born of illegal aliens on US soil which illegal aliens can use as an “anchor” to tie themselves to the US — are the product of a misunderstanding about the meaning of the 14th Amendment.  As she points out, the question whether the Citizenship Clause would apply to the children of aliens came up at the time the Clause was drafted, and rejected by its author.  Unfortunately, the history on this point is not so clear as she would cause us to believe, and is, in any case, irrelevant to the text of what the 14th Amendment actually says.

The Citizenship Clause of the 14th Amendment states:

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

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.


Ruling on Arizona Law

   Posted by: Robert Tags: ,

This afternoon, a federal judge in Arizona granted a preliminary injunction against portions of the Arizona immigration law, SB 1070.  Although the federal government had asked for the entire law to be struck down, the judge declined to grant an injunction against the law in its entirety.  That is not, however, anything close to a win for Arizona or the American people; it simply means that the law was killed surgically, rather than with a blunt instrument.  Reading through the ruling itself, it appears that the judge completely bought into the federal government’s preemption argument, but largely failed to make a convincing case for why its ruling is correct.  What follows are my first impressions on select parts of the ruling.


I have wondered since I first heard that the US government was suing Arizona how the federal government would justify standing to bring forth its lawsuit.  In making her ruling, the judge offered no insight as to how she found the federal government to have standing.  Though I wasn’t surprised by this — neither side briefed the issue (that I saw) and nobody (I’ve seen) has asked this question besides me — I was disappointed.

The question of preemption is fundamentally a question of which law applies to a particular case.  In the normal preemption case, a party is challenged under a state law, and mounts a defense saying that the state law is preempted by federal law.  If the state law and federal law conflict, the Supremacy Clause dictates that federal law must win, meaning that the state law is preempted.  The conflict can either be direct, in the sense that the federal law and state law say two incompatible things, or the preemption could be made by rule, if the federal government affirmatively prevents the states from legislating in a given area.  Regardless of how preemption happens, the party harmed was always the person or entity against whom the state law would apply if not for preemption.

Today, without any discussion, the judge has necessarily found that the federal government is itself harmed when a state passes a law which is incompatible with federal law.  While it’s possible that I’ve missed something about how standing works, this (implicit) theory of standing seems incredible to me.  Last I checked, the federal government doesn’t have a free-standing license to challenge any state law that it doesn’t like.

Of course, for the sake of fairness, I should note that it’s at least plausible that the federal government could claim to be harmed by the “burden” Arizona would place on it by running immigration checks and referring illegal aliens to ICE for processing.  However, that only opens the door to some of the challenges posed to the Arizona law, not to the entire thing.

Section 2b

In striking down this section, the judge makes much of a drafting error made in the original SB 1070 and later corrected in a subsequent amendment passed in short succession.  The judge is quick to criticize the second sentence of this section, which says that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”  In the law, as amended, this naturally follows the preceding sentence which says what Arizona law enforcement must do “[f]or any lawful stop, detention or arrest.”  The judge, however, refused to read the two sentences as a cohesive whole because the original unamended SB 1070 spoke only of “lawful contact,” rather than of “lawful stop, detention or arrest.”  There is little reason to doubt that the Arizona legislature intended both forms of that sentence to mean the same thing, and that the amendment was made to clear up the obvious vagueness of what “lawful contact” actually entails.  The judge, however, would apparently hold the two phrases to mean something so radically different that the second sentence and first sentence should be read as if they are in entirely separate sections, despite the absurd result that analysis produces.

Section 5

In striking down this section, the judge turns established precedent squarely on its head.  She begins with the following observation:

“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (internal quotations and citation omitted)).

Having read that paragraph, it would appear that the viability of a law limiting illegal aliens from applying for or performing work should be an easy win for Arizona.  Arizona’s law is, after all, directly on point with the above cited cases.  By the end of the section, however, the judge has talked herself into the exact opposite conclusion.  The linchpin: Arizona attaches a penalty to violating its law.

Although I haven’t read the cited precedent, I find it highly unlikely that the cases above involved state laws with no penalty for non-compliance.  After all, police powers are rather meaningless if the police have no power to enforce them.

Section 6

In sum, this section amounts to unconstitutionality by virtue of hopelessly confusing federal policy.  The essence of the judge’s conclusion on this section is that it is simply too hard for Arizona police to know what is and isn’t a removable offense, so that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens.”

Although I find it illogical to say that this law is preempted as opposed to, say, that it is unconstitutionally vague, I find it hard to fault the judge too deeply for her outcome on this point.  From everything I understand, the entire concept of a “removable offense” is, truly, a mess.  Nobody really knows whether or not an offense mandates removal of the alien until the final appellate court has its say.  This is an area where Congress really should step up and add some much needed clarity to the law.


Overall, the quality of the ruling strikes me as being pretty bad.  The key through it all, however, is that the court bought the federal government’s argument of preemption and ran with it to every area of the law where it was necessary to strike the law down.  The ruling, however, leaves open some important questions which should be addressed in a final ruling on the merits at some point in the future.