Posted on by rjonakait

Born Right

The Supreme Court recently heard arguments concerning Trump’s Executive Order redefining birthright citizenship, “Protecting the Meaning and Value of American Citizenship,” signed on his second first day in office.  The legality of the order was not the issue before the Court. Instead, the arguments were about the propriety of temporary nationwide or universal injunctions prohibiting the enforcement of Trump’s order. The order’s status and the injunctions raise important legal questions, but I set off on flights of fancy and started to ruminate about possibilities if that Executive Order were in effect.

I quickly realized that my birth certificate would now be deficient for citizenship purposes. As the EO recognized, the Fourteenth 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.” My certificate says that I was born in Sheboygan, Wisconsin, which, to the surprise of some, is part of the United States. That has been sufficient to prove my citizenship, but not under the possible new regime.

The Executive Order went on to say, “But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” Trump further elucidated his understanding of the Fourteenth Amendment: “Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Trump defines two groups of people (he suggests there are more with the phrase “among the categories of individuals”) not granted the privilege of citizenship by the Constitution. (The EO opens: “The privilege of United States citizenship is a priceless and profound gift.” The citizenship granted by the Fourteenth Amendment is not a privilege or a gift. It is a constitutional right.) To authenticate my citizenship, I would now need to know more than my birthplace. I would also need to know the citizenship or immigration status of my parents, but my birth certificate, and no doubt yours, does not include that information. Given the implied goals of the current administration, I, a critic of that administration, could be deported if I could not prove my parents’ immigration status and hence, my own citizenship. Far-fetched? I hope so.

The EO, however, gives no indication of how the now-crucial fact of the parents’ status will be determined. The birth attendants—doctors, nurses, midwives—are not experts in immigration matters. Whoever fills out the documents would no doubt get the information from the mother and father. Will the parents’ assertions be sufficient? Will there be someone to challenge what a parent claims, or will the proffered information be simply accepted?

 What if the father is not present? Can we accept the mother’s word both as to who the father is and his status? For citizenship in the past, we did not need paternity tests. Will we need them in the future? And what if this is a birth through an (anonymous) sperm donor?

The EO does not explain who makes the citizenship determinations? Or when? A person deemed a noncitizen should have the right to contest that conclusion. That probably cannot be required during the time the person is an infant, which should mean that people prior to reaching adulthood must have a forum in which to establish they are citizens. This, of course, will be a generation after birth, and that will surely present all sorts of problems.

The Executive Order’s definition of birthright citizenship means many people who were assumed to be citizens were not born citizens. I may not be a citizen if my parents did not have proper status. I assumed my parents were citizens because they, too, were born in Wisconsin, but that birth location is not enough. We may have to know the citizenship and immigration status of their parents. And so on. The Executive Order seeks to untangle that jumble of umbilical cords by saying that the order “shall apply only to persons who are born within the United States after 30 days from the date of this order.” That makes sense from a practical perspective. We can somehow, even if not now clear how, start to record the necessary information for each new birth. But if the EO is followed, we will have two kinds of citizenship —  citizens before 2025 and citizens thereafter — something that can’t be found in the Fourteenth Amendment. All this seems to produce a larger mess than even DOGE could create.

There is a way to handle this problem. Legislation could make all those born before 2025 in the United States citizens without going through ancient birth and immigration records. Oh, wait. We already have such a law. A 1952 statute, 8 U.S.C. 1401, states in part: “The following shall be nationals and citizens of the United States at birth: a person born in the United States, and subject to the jurisdiction thereto.”

This statutory provision has meant that the children of illegal immigrants born in the United States are citizens. Trump might say that those who drafted and passed this law accepted this position only because they were following an incorrect interpretation of the Fourteenth Amendment. Even if that were so, the clearly evident public meaning of the statute and the intentions of the drafters and adopters of it were to give birthright citizenship to those born here including children of undocumented immigrants. Conservative interpretive principles mean that neither courts nor an executive order can change the law’s meaning understood and intended by those who enacted it even if the statute, like many others, was based on an incorrect premise. If a statute is invalid because of a faulty foundation, our lawbooks will soon be a lot thinner.

If Trump really wants to change birthright citizenship, Congress needs to pass a new law that tracks Trump’s Executive Order. Gee. I wonder why he hasn’t proposed the new legislation.

Posted on by rjonakait

Our Rubicon Moment?

Friends asked me to discuss the “constitutional crisis” that the media seems to think is imminent.

My starting point is to explain that the Constitution is not static. It has changed in big and small ways; scholars have identified three major constitutional transformations.

The first came before we even had a national constitution. The newly-independent states were bound together by the Articles of Confederation, which were not considered adequate for governing the emerging nation. Therefore, men got together in 1787 in Philadelphia ostensibly to reform those Articles. Instead, they drafted a new constitution which was adopted by the requisite nine states the next year. A new government came into being. Our government today depends on that eighteenth century document, and it is controlled by the constitution much as it was back then.

Early on that founding document was seen as needing changes. Some states only ratified the Constitution with the understanding that a Bill of Rights would be added. The first Congress proposed twelve amendments, ten of which were adopted and went into effect in 1791. These additions mostly announced rights people assumed they already had and did not change the structure of the government. However, a decade later a major flaw in the document was exposed by the election of Thomas Jefferson and Aaron Burr. As a result, the Twelfth Amendment was adopted modifying the electoral college. From its inception, therefore, the Constitution has been subject to change.

The first significant transformation of the Constitution, however, came from the Civil War and its aftermath. The war occurred partly because of a major flaw in the document itself. Instead of confronting the issue of slavery, the founders tried to avoid it or make feeble compromises about it. As a result, slavery was not merely a stain on the fabric of the Constitution but woven into it. Various factions pulling at the threads and cords of slavery from all directions challenged the constitution, and war came.

In the war’s aftermath, three amendments to the Constitution were passed. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment granted Black males, but not women of any color, the right to vote. These two amendments were transformative, but they were only partially successful. Slave-like practices continued to exist in the country, and within a decade of the adoption of the Fifteenth Amendment, the right to vote was stripped from most Blacks.

The Fourteenth Amendment, although it has several provisions, reshaped our Constitution by commanding that no state “shall deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The original Constitution did little to constrain the states in their treatment of inhabitants. The Fourteenth Amendment, as interpreted by the Supreme Court, changed that. For example, the Court held that the amendment’s due process clause prevented a state from taking a person’s property without just compensation. In the early twentieth century it held that the state could not abridge free speech. Over time, the Court increasingly prohibited the states from interfering with rights guaranteed in the Bill of Rights. The Court, relying on the Fourteenth Amendment, also said segregated state schools were unconstitutional and that states must afford one person, one vote. The constitutional crisis of the Civil War produced a Fourteenth Amendment that transformed the relationship between courts and individuals by expanding and clarifying constitutional rights.

The next major constitutional transformation came during the Great Depression. The Supreme Court had found unconstitutional many state and federal laws regulating businesses. This crescendoed during Franklin Roosevelt’s first term when the Court deemed unconstitutional much New Deal legislation that had been passed by Congress to alleviate the harsh economic conditions. FDR responded by proposing that the Court be expanded. Critics called it “court-packing.” Although the causes are debated by historians, lo and behold, after the court-packing proposal, some justices modified their opinions and now upheld federal powers to regulate business and other activities. The Civil War transformation expanded judicial powers to protect individuals and entities from the government. The Great Depression transformation expanded the power of the federal government to regulate activities affecting “interstate commerce,” which has been broadly defined. The decisions of the New Deal Supreme Court provide the basis for much of the federal government’s regulatory power today.

So. Are we now in the midst of another constitutional crisis? Are we due for another constitutional transformation? I see not one possible scenario, but several.

Conservatives look at our government and see a bloated bureaucracy that was not contemplated by the Constitution. It is entrenched but not elected. That bureaucracy, though authorized by Congress and the president, often seems to act independently of Congress and, more importantly, the president. Although it appears to be part of the executive branch of the government, the bureaucracy often sets and follows its own guidelines and policies. Thus, conservatives see a bureaucracy that is too often resistant to the policies of the president, and they find this in violation of the constitution. This unconstitutionality in the conservative eye must be put to rights. A constitutional transformation is needed to restore the balance that our Constitution contemplates where the president sets and enforces executive branch policies. And, under Trump, conservatives maintain we are seeing the beginning of that needed constitutional transformation.

On the other hand, some, but not all, liberals see a different potential constitutional crisis. Many of Trump’s actions and orders, they claim, have been in direct conflict with specific provisions of the Constitution (e.g., birthright citizenship), have been in violation of the separation of powers, or have violated the constitutional duty of the president to “take care that the laws be faithfully executed.”  And while conservatives see a constitutional crisis in an unelected bureaucracy, liberals see a crisis in the unfettered authority exercised by an unelected Elon Musk who has not been appointed to a Senate-confirmed position the Constitution seemingly requires.

Other liberals may be concerned about the administration’s actions, but they don’t see a present constitutional crisis. They see the system working because the courts have been hearing challenges to Trump’s and Musk’s orders. This is the normal constitutional process, and Trump has said that he will follow the judicial process. Almost all the court rulings have been in the federal district courts, which are the lowest level of federal courts. Following decisions in the district courts, those findings can be appealed to the Court of Appeals. Then the losing litigant may seek to have the Supreme Court hear the matter. (There is no right to have the Supreme Court hear these cases; it is in the Court’s discretion.) Many maintain that as long as this process is being followed, there is no constitutional crisis.

Even so, liberals who don’t see a present crisis, are concerned about a future constitutional transformation. Many, probably most, constitutional scholars believe that under existing Supreme Court rulings, many of Trump’s actions violate the Constitution or existing laws. The first fear is that the current conservative Supreme Court will ignore or overturn the precedents and uphold Trump’s actions. That is, that the Supreme Court will reinterpret the Constitution and laws to give the president even more power than he now has. This will, in effect, remake the Constitution by taking away congressional authority and individual rights and make an already powerful president even more powerful. As it did with its presidential immunity decision, the Supreme Court could transform our government to make the president more kingly, more authoritarian.

The other liberal fear is not of the Supreme Court but of Trump himself. Even though he has said otherwise, the fear is that Trump will either not use the appellate process and just keep bulldozing ahead, or even if he does follow normal procedures, he will not obey Court orders that go against him. He will ignore or defy the judiciary. Of course, he said he wouldn’t do that, and he did not disobey the courts in his first term. However, those around him have suggested that he will this time if courts don’t rule his way. And just as you can find Trump statements that he will honor the judicial process, like the devil quoting the Bible, you can find other Trump pronouncements, such as his recent statement: “He who saves his Country does not violate any laws.”

Presidential defiance of the courts would be a true constitutional crisis, perhaps a fatal one. His recent statement about not committing illegalities when saving the country is ascribed to Napoleon, but precedents go back further into history. Julius Caesar broke the law and illegally marched his troops, loyal to him more than to the nation, across the Rubicon and into Rome. The fall of the Roman Republic began, and a dictatorship took its place.

Posted on by rjonakait

That Colorado Ballot Decision

The United States Supreme Court will hear arguments this week in the case that seeks to exclude Donald Trump from the ballot in Colorado. The constitutional provision at stake is Section 3 of the Fourteenth Amendment. It was adopted in the shadow of the Civil War and reads: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. 

The Supreme Court has never before considered Section 3. We have a constitutional tabula rasa. This dispute presents an opportunity for each of us to think about how we would interpret the Constitution freed from past decisions.  

I know the answers from many. Some would say it is clear that Trump engaged in an insurrection, and he should be barred from being president again. Others will say that barring him from the ballot harms democracy and will lead to more divisions in the country. It is better that the voters decide whether he should be president again. But, of course, those are conclusions that skip over important interpretive questions that the constitutional provision presents. 

There are different modes of constitutional interpretation, but perhaps all can agree that the start should be the text of the Constitution itself. If the words are clear—Congress shall have two houses, for example—we have no problem, but often a provision is unclear and reasonable people might differ over its interpretation. The Constitution gives no clue how the charter should be interpreted when interpretation is needed. Instead, interpreters make choices for their interpretive methods. And we should be aware that no matter how hard we may try, at least, subconsciously, that choice is unlikely to be a neutral one. We will have the tendency to adopt the interpretive method that reaches the results most pleasing to us. 

Of course, this only matters if Section 3 has parts that aren’t so clear that they need interpretation. Perhaps you noticed what others have: While the provision expressly bars people from certain positions—Senator, Representative, elector—it does not explicitly prohibit anyone from being president. Does Section 3 not cover the presidency? Others reply that “officer of the United States” includes the president, but it is at least curious that “elector of President” is explicitly listed, but not the presidency itself. 

Perhaps you also noticed that the provision only applies to those who have previously taken an oath “to support the Constitution” and know that the Constitution prescribes an oath for the president that does not include the word “support.” Instead, to become president people must swear or affirm to “preserve, protect and defend the Constitution.” Does that matter? 

Perhaps most crucial to the Fourteenth Amendment’s Section is that a person has to have “engaged in insurrection or rebellion against the” United States. Of course, we know that the provision was enacted in reaction to the Civil War, and clearly that conflict was considered to be an insurrection or rebellion against the United States. But what else constitutes insurrection? How would you go about finding that meaning? A modern dictionary defines insurrection as “an act or instance of rising in revolt, rebellion, or resistance against civil authority or an established government.” Another dictionary states that an insurrection is “an act or instance of revolting against civil authority or an established government.” The two definitions are similar but not the same. Does that matter? 

Or perhaps you feel that we should look at what the terms meant when the Fourteenth Amendment was drafted and adopted. Those nineteenth century folk were probably familiar with Noah Webster’s 1828 dictionary, which defines and explains insurrection as “A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.” 

A good court decision should first determine what “insurrection or rebellion” means. Only after that can it be decided whether January 6 fell within the purview of Section 3. But if you determine that by the definition you accept, January 6 was an insurrection, you should examine what else might be an insurrection to test out your definition. Does a mass movement that refuses to pay federal taxes come within the ambit of Section 3? Or imagine a Black Lives Matter protest that has surrounded a federal office building shoulder to shoulder making entrance into the offices impossible without some sort of force. Is that an insurrection? 

If the behavior at the Capitol was an insurrection, did Trump, who was not on Capitol Hill, participate in the insurrection? He did not do anything violent; as far as I know, he only spoke. The free speech provision of the First Amendment seems to come into play. The Supreme Court has decided cases trying to delineate when speech advocating illegal action is protected free speech and when it is criminal incitement. I’ll spare you the details, but it is hardly clear that Trump’s comments were criminal incitement. A few years ago I was asked to conduct a friend’s college seminar about free speech while he recuperated from Covid. The students had studied the Court’s incitement cases. I had them read Trump’s January 6 address. Putting it mildly, the students were not Trump acolytes, but not one of them thought his remarks fit the Supreme Court definition of criminal incitement. Of course, I am not saying the students’ reactions were right, and I only had the students read the comments. A cold, printed record can, of course, be much less inflammatory than actual oral remarks, but how should the First Amendment come into play in evaluating Section 3?  

Assume, however, that it has been decided that the presidential oath and the office of president fall within the ambit of Section 3. Assume there is a workable definition of insurrection. Still, however, some individual or institution must authoritatively determine whether what happened fit the insurrection definition and, if so, if Trump engaged in it. Section 3, however, does not tell us who or what makes these factual determinations. 

Some contend, including many Republican Senators and Representatives, that Congress must first either make the Section 3 determinations itself or set out the procedures for making the judgments. They get support for this position from an 1869 decision by a Supreme Court justice who was acting not as part of the Supreme Court but as a lone appellate judge. It, however, presented a much different circumstance than whether someone should be kept off the presidential ballot. In this nineteenth century case, a man who had been convicted of a crime in state court maintained that his conviction was faulty because the presiding judge at his trial was disqualified under Section 3. The trial took place after the Fourteenth Amendment had been adopted, but the judge had validly ascended to the bench before Section 3 was in effect. No one contended that the trial was unfair, and the Supreme Court judge upheld the conviction, suggesting that Congress had to act before Section 3 was enabled. 

Perhaps upholding the conviction was right, but the suggestion that Congress must act to make Section 3 operative is bizarre. Perhaps someone can point out an example, but I don’t know of another constitutional provision that is a dead letter unless a majority of Congress acts. Instead, our constitution puts governmental structures and individual rights out of reach of majority control. Concluding that Congress must act first for Section 3 to be enforceable would make that provision different from other parts of the Fourteenth Amendment. For example, the first part of that amendment states that a state shall not “deny any person within its jurisdiction the equal protection of the laws.” The equal protection clause does not say how it should be enforced, but it does not require congressional action to be enforceable. Instead, as in school segregation cases, courts have enforced the equal protection clause without congressional action. And notice that Section 3 says that the section’s disability can be lifted by a two-thirds vote of each congressional house. Why put in that explicit language and not tell us that Congress must act in order for the provision to be enforceable?   

It is not courts, however, that are the primary supervisors of our elections. Instead, state secretaries of states, boards of elections, and the like first determine whether a person is qualified to be on the ballot. However, Section 3 applies equally in all the states, and a person should be a disqualified insurrectionist in all the states or in none. Section 3, when it comes to the president, is akin to the requirements in Article II that says no one can be president who is not a natural born citizen, thirty-five years old, and resident of the country for fourteen years. It would be nonsensical for one state to bar a candidate because he is not thirty-five, while another state determines he is old enough.  

There is yet another wrinkle. A person is entitled to due process in the determination of whether he is disqualified for office. The Supreme Court should rule on what process is due, but to my mind this should include an adversarial trial where our potential candidate should be allowed to cross-examine witnesses and be able to call witnesses. The burden of holding such a proceeding in every state would be overwhelming. Are we really going to say that a bystander witness to the possible insurrection must testify in Arkansas, Utah, Vermont, etc.? And what should the Supreme Court do if there are contradictory findings about whether the person participated in an insurrection? The Supreme Court normally decides issues of law such as what is the definition of “insurrection”; it does not have a mechanism for deciding which findings of fact among competing ones are the ones that control.  

Of course, Congress might act and set out a structure for determining whether Section 3 disqualifies somebody. Section 5 of the Fourteenth Amendment states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Congress could pass legislation that, for example, says the federal courts in the District of Columbia have the exclusive jurisdiction to try all actions to disqualify any person from office under Section 3 of the Fourteenth Amendment. But we don’t have such legislation, and we won’t any time soon.  

I know how I would answer some, but not all, of the issues raised by Section 3 of the Fourteenth Amendment. I have little idea, however, of the reasoning the Supreme Court will use to reach its result. Of course, perhaps most of the country will only be concerned with the outcome, but since this constitutional provision presents a messy situation, I expect the Supreme Court to give us messy opinions.