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Thoughts on the Little Sisters of the Poor v. Sebelius stay

We consider the other stay being sought before Justice Sotomayor, the Little Sisters of the Poor case.

I had thought that the premise of the Sisters' case was (like the other cases in motion) "we're subject to the mandate." But having read the Application and Response, I no longer understand how this case works. The Response insists that the Sisters ARE "eligible for religious accommodations set out in the regulations," and that that the Sisters "need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan."

Sure, you say, but that's the government; the Application contests that, right? Alas, it does not. To the contrary, the Application claims certification precisely as the harm that they will suffer absent relief: "Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines. … [T]he precise act that violates their religion … [is] 'complet[ing] a self-certification form and provid[ing] it to" the insurers. In other words, the harm that the Sisters are claiming isn't that they will be subject to the Mandate but that they will have to certify that they aren't. That's puzzling and weak.

Confessedly, this is the so-called "compromise," and I criticized it when it was announced. But now that we have before us real regulations and real plaintiffs and a real, concrete situation, I'm having a difficult time understanding the problem as it's played out in practice. I understand why requiring a Catholic organization “to contract, arrange, pay, or refer for contraceptive coverage” is a violation of conscience. But as we've seen, the government contends (and the sisters don't contest) that they aren't being asked to do any such thing, because they can opt-out by self-certification.

Well, okay, but what does that mean? As I understand 45 CFR § 147.131 (2013), when an organization opts out ("self-certifies") that it can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage,” their provider must—must!—"[e]xpressly exclude contraceptive coverage from the group health insurance coverage" provided to the certifying organization and "[p]rovide separate payments for any contraceptive services required to be covered … for plan participants and beneficiaries for so long as they remain enrolled in the plan." The provider "may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee or other charge, or any portion thereof, directly or indirectly," on the certifying organization.

So what's the theory that opting out is a violation of conscience? One theory might be that if a significant number of organizations opt out, the insurance companies may fund the imposed costs by rate hikes? That was the ground on which I originally faulted the compromise, but from our vantage point today, there's a lot of "if" and "may" coming off of that theory. The injury just seems too remote and speculative to support a lawsuit against the regulation.

And in any event, the sisters rely on a different theory. They think that a 147.131(b)(4) self-certification "authoriz[es] and direct[s]" their plan provider "to provide the required coverage…." App. 8. But that's not what section 147.131(c) says. It says that certification causes a plan provider that already provides the required coverage to pay for it "themselves." (Scare quotes with one eye on the first theory mentioned.) Their theory seems to be that opting out will cause an insurance company to offer contraceptive coverage, but even if that would violate their conscience (and it's not clear why), it's incorrect, not as a matter of Catholic doctrine but as a matter of law. The insurance company is already mandated to offer the coverage; the question (and the effect of the opt-out) is whether the sisters are charged for it.

When I try to harmonize the language of the two alternatives, here's what I get: The sisters insist that they can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage.” I understand. I agree. They furthermore insist that they can't in good conscience contract with an insurance provider that arranges or pays for contraceptive coverage at no direct cost to the sisters. And that, truth to tell, I just don't understand.

It's looking more and more like a case of "right case, wrong plaintiffs." Imagine that the DoE promulgates a regulation that reads as follows: "Section 1. All power companies must pay all workers a minimum of 150% of the minimum wage. Section 2. A power company incorporated in Delaware shall be exempt from section one of this regulation if it certifies in writing to the Secretary that the day that follows Monday and precedes Wednesday is Tuesday." A power company not incorporated in Delaware probably has an APA claim, cf. Motor Vehicle Manufacturer's Ass'n v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 42 (1983), and a number of them file suit. Then ConEd, a Delaware corporation, perhaps feeling left out of the fun, files suit; the government moves to dismiss insisting that ConEd doesn't have standing to challenge the mandate because it's eligible to opt out under section two. Does ConEd have standing?

I will finish with this observation. Cases such as this demonstrate the difficulty of so-called "public interest litigation." Litigation mills like Public Citizen, Becket, People for the Soviet Way and so on decide that they hate a law, seek out the most sympathetic possible plaintiffs to use as a vehicle for challenging the legislation in the courts, and then try to figure out why their handpicked plaintiff was injured. It's not hard to see why that's an attractive strategy. It makes it easier to win sympathy—so that stories like this can be written in which the government is portrayed as a big overweening bully out to get the nice little plaintiffs, and suddenly the discharge of a normal litigation function starts to look Orwellian. "The government filed a response to the plaintiff's motion! How dare they! Why do they hate the sisters?"

But the problem with the strategy is that because the lawsuit's come together out of sequence, creating the necessary nexus of injury between the chosen law and the chosen plaintiff can be tricky. When you have a plaintiff like the sisters who challenge the mandate because it violates their conscience to provide contraception, one might think that "actually they don't have to provide contraception" is a pretty good rebuttal. There are a number of cases challenging the mandate that have less sympathetic plaintiffs (Hobby Lobby, Grote, Gillardi, et al) but stronger claims.

Thoughts on the Herbert v. Kitchen stay

We consider the stay sought from Justice Sotomayor in the Utah marriage case, Herbert v. Kitchen.

Ordinarily, to obtain a stay, there must be "a 'reasonable probability' that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction," "the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous," "there must be a demonstration that irreparable harm is likely to result from the denial of a stay," and "in a close case it may be appropriate to 'balance the equities'—to explore the relative harms to applicant and respondent, as well as the interests of the public at large." Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers) (alteration in original); see Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (per curiam); Barnes v. E-Systems, 501 U.S. 1301 (1991) (Scalia, J., in chambers).

What should have happened in this case is that the district court should have looked at the balance of equities and reasoned that if the judgement were stayed and upheld, nothing of significant would happen, while if the judgment were not stayed and was reversed, chaotic and anomalous situations would follow. The district judge should be impeached and removed from office for that misbehavior; the ball's in your court, Congress. But what's done is done. Now we have to unwind the mess.

My primary difficulty in this case lies at the confluence between irreparable harm and balance of equities. While I agree that irreparable harm would follow if the district court didn't stay its ruling, that court refused to issue a stay, and irreparable harm has already taken place. The Applicants concede that the harm isn't just the state's inability to enforce its laws, but the ongoing parade of same-sex marriages that are taking place. App. 20. Were the judgement reversed, those marriages that are already final would be placed into an anomalous and difficult position that would in turn require significant unwinding and, quite likely, litigation. (When Strauss v. Horton, 207 P.3d 48 (Cal. 2009), upheld proposition 8, the court had to face the question of what to do with all those marriages conducted between its adoption and In re Marriage Cases, 183 P.3d 384 (2008).)

Against this background, I note that the balance of equities will usually favor preservation of the status quo while litigation wends through the courts, see San Diegans for the Mount Soledad National War Memorial v. Paulson, 548 U.S. 1301 (2006) (Kennedy, J., in chambers), and indeed the whole purpose of a stay is "suspend judicial alteration of the status quo." Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers). But it's too late for that: The judicial alteration of the status quo has happened, and a new status quo has prevailed since December 20th, which the Applicants again concede (App. 5). Nearly a thousand marriages have subsequently taken place. See Barnes, Same-sex marriage advocates urge Justices to reject Utah’s request to stop the unions, Washington Post, Jan. 3, 2014. A stay may suspend it in the sense that it will prevent the breach from becoming deeper or wider, but it will not undo what has been done.

Nevertheless, if this case came to us in the normal posture, I would be tempted to grant the stay anyway, on the grounds that any harm arising from the anomalous position in which those couples find themselves is the fruit of their own opportunistic behavior. No reasonable person could have believed that the district court's judgement was likely to escape appeal, and while no intelligent person would bet on it being reversed, no prudent person would pattern their behavior on the assumption that it wouldn't. Indeed, I suspect that the possibility of insulating the decision by creating a Strauss-style anomaly was on the minds of both the district judge and the newlyweds.

But the case is not in the normal posture. Ordinarily, the loser below asks the Supreme Court to stay the judgment of the Court of Appeals pending further proceedings before the Supreme Court. Here, though, it's the district court's judgement for which a stay is sought pending further proceedings before the court of appeals, which denied a stay. If neither the district court nor the court of appeals are willing to enter a stay pending appeal, a request that the Supreme Court do so is generally rejected. Heckler v. Lopez, 463 U.S. 1328, 1330-31 (1983) (Rehnquist, J., in chambers). When "nothing more [is] involved than the exercise of a District Court's traditional discretion in fashioning a remedy for an adjudicated harm or wrong," interference with the usual course of appellate review is unwarranted. Id., at 1337. Nor is there any reason to suppose that the court of appeals is dallying, cf. Doe v. Gonzales, 546 U.S. 1301 (2005) (Ginsburg, J., in chambers). This additional concern clicks up the weight that applicants must carry, and what would have been a challenging burden in an ordinary case thus becomes too heavy for the applicants (through no fault of their own, confessedly) to shoulder.

For these reasons, I would deny the stay, and I suspect that the court will, too.

The end of the filibuster

2005. It was a different time; a simpler time; a time in which Autobots and humans lived side-by-side, but more importantly for our story today, it was a time in which the GOP controlled the White House and the Senate. When Harry Reid earned a lasting place in infamy by triggering the nuclear option, it was the culmination of a debate that began in earnest in 2005, although its roots go back to 2003 when the Democrats began to use the filibuster as a tool against judicial nominees. But it was 2005, at the beginning of the Congress elected with President George W. Bush, that the GOP turned up the heat with the threatened "nuclear option."

I maintained throughout (and subsequently) that I was less troubled by the nuclear option itself than I was by the defective and often frauduluent Constitutional arguments used to justify it. Nevertheless, lest I be thought a partisan on this point, I wrote at the time:

I am a Republican and an Originalist, someone who really, really likes the US Constitutional order; I don't want to mess around with it simply because it suits my immediate cause. America is not, was not created as, and never will be, a strictly majoritarian democracy; it is a Republic, if we can keep it, in which majority rule is tempered with minority rights, as provided by a written Constitution, the meaning of which does not change other than by its amendment. I see no reasonable, originalist interpretation of the Constitution that is consistent with Senator Frist's nuclear option—and as such we must call it, because, Q.E.D., it most certainly is not a 'constitutional' option—and thus I must respectfully dissent.

And lest President (then Senator) Obama be thought anything but a partisan on this point, he wrote at the time:

"I rise today to urge my colleagues to think about the implications the nuclear option would have on this chamber and this country. I urge you to think not just about winning every debate, but about protecting free and democratic debate. … [T]he American people sent us here to be their voice. They understand that those voices can at times become loud and argumentative, but they also hope that we can disagree without being disagreeable. And at the end of the day, they expect both parties to work together to get the people's business done. What they don't expect is for one party - be it Republican or Democrat - to change the rules in the middle of the game so that they can make all the decisions while the other party is told to sit down and keep quiet. The American people want less partisanship in this town, but everyone in this chamber knows that if the majority chooses to end the filibuster - if they choose to change the rules and put an end to democratic debate - then the fighting and the bitterness and the gridlock will only get worse.

Again, I urge my Republican colleagues not to go through with changing these rules. In the long run, this is not a good result for either party. One day Democrats will be in the majority again, and this rule change will be no fairer to a Republican minority than it is to a Democratic minority. Mr. President, I sense that talk of the nuclear option is more about power than about fairness. I believe some of my colleagues propose this rules change because they can get away with it rather than because they know it's good for our democracy.

One might plant tongue firmly in cheek and say that it's sporting for the Democrats to eviscerate the power of the minority shortly before being returned to it. But that's politics. On substance, which is what really counts, this is a day that will live in infamy. Tonight, every American goes to bed in a country that is a little bit worse than the one in which they awoke.

Intervention in Syria

It would seem like the time to get on the record about this. Perhaps the best way to describe my attitude toward military intervention in Syria is "I'm open to it." I am not actively in favor of it, I am uneasy about the prospect, but I am not opposed.

In the abstract, my attitude has always been "give war a chance." As a teenager, I watched the meat-grinder of the Yugoslavian civil war and wondered why no one was helping—stop talking and help—and then the feckless response of the United Nations wondering why no one was helping effectively. That was formative. I argued for intervention in Rwanda, Kosovo, Zimbabwe, Iraq, and Libya, and supported those interventions that we carried out. (On Libya, compare my post here with Pat's post here.) Generally-speaking, I say: When western military power can be used to prevent small men from slaughtering their populi, we should favor intervention. I am emphatically an interventionist when we foresee intervention being a net plus and the costs being reasonable. I think it naive to suppose that you can talk such men out of office and into a short and predictably-fatal retirement. I think it facile to complain that war takes lives when lives are already being lost, as they are in Syria.

"When," however, is often "if." To be more precise about it, I tilt toward intervention when there are discrete problems that can be resolved through the application of military force. While I realize that this is a mushy standard rather than a clear test, Iraq may provide a helpful example: The problem was that Saddam Hussein's control of Iraq was unacceptable, our goal was to remove him from power, and this could readily be accomplished through precise application of military force. (Operation Opera furnishes a non-American example—the problem was the existence of an object susceptible to military force—as, mutatis mutandis, does Operation Corporate.) Egypt, by contrast, will serve as a counterexample: Its problems can't be solved by troops on the ground, let alone by letting some firepower off the chain, and so it's hard to make a case for intervention. Moreover, that is a threshold test, and there is another piece to the analysis, which is even mushier, alas: The negatives of intervention must not outweigh the positives. North Korea exemplifies that point: There is no doubt that we could crack that nut, but the collateral costs are horrendous. Not every problem that can be solved by military force must be—or should be.

The problem that I have with supporting intervenion in Syria is that it's easy to say "intervention" but more difficult to articulate precisely what that means: What are we trying to do? How are we going to get there? What are the waypoints—by what metrics can we assess progress and failure? What are the criteria for deciding whether we're "there" and/or whether we're going to get "there"? What happens once we're "there"? At what point or in what circumstances do we leave? Broadly-speaking: What's the plan? Is it to kill Assad? To remove the Syrian government? To destroy the regime's chemical weapons? To destroy or disrupt the regime's military? To referee the dispute?

William Saletan gives it a good try, but comes up short. Nick Clegg says that “[t]he objective [of military action in Syria] is to deter the further use of chemical weapons on humanitarian grounds,” but that's not good enough either. That is not a goal, it is an aspiration. And it's a weaselly aspiration: Are we really to tell Assad that chemical weapons are out, but that, if he might kindly return to butchering his people with conventional arms, we will mutter and resume our fitful sleep? And it's a dangerous aspiration: Plastic aspirations produce open-ended commitments, which is precisely what we don't want. While recognizing that the situation on the ground sometimes dictates a certain fluidity of strategy, there should be tangible, concrete, defined goals: we're going to go in with X, we're going to do Y, and (ideally, although less importantly) we're going to leave when Z.

It must also be noted, tangentially, that many of the cheerleaders for intervention, from the President on down, have displayed a level of raw partisan hypocrisy that is astonishing. The speech of Secretary Kerry, for example, could have been given almost word-for-word, with only superficial changes, by Vice-President Cheney in the runup to Iraq. To be clear, the act of hypocrisy was then, not now—Kerry is right now and was wrong then. And to be sure, there are Republicans who supported war in Iraq but who are now skeptical of attacking Syria, which might, one supposes, leave them open to comparable charges of partisanship. But I doubt that such charges can stick. The liberation of Iraq, unlike our hypothetical action in Syria, had a clear and precisely-defined goal that could be measured. (It is important to be clear about this: Those who opposed the liberation of Iraq were wrong. Period. That assesment does not change because of the subsequent mismanagement of post-Hussein Iraq.) It would be hypocrisy for those who favored the liberation of Iraq to reject action in Syria on principle, but surely not if their concerns are practical.

Let me end on this note: One of the few things on which President Obama and I coincide is our shared distaste for sitting by idly in the face of slaughter. Political expedience may have induced him to oppose Iraq, but we saw his true colors, I think, with intervention in Libya. He and I are unimpressed by the notion that such-and-such "is not an American problem" or that "America is not the world's policeman"; we are skeptical of the idea that we may not go abroad in search of monsters to destroy and certain that Adams' sentiment, whatever its wisdom in abstracto, is cold-blooded in a world where ambition is so often invoiced in innocent blood. My threshold for supporting the President on this is very low. I tilt toward intervention, and I should like to defer to his judgment if he would articulate as much as a plausible and coherent approach. (Cf. Simon Dodd, The NSA programs: Deference, secrecy, libertarians, conservatives, and the Fourth Amendment, part I, Motu Proprio, June 19, 2013.) He has yet to do so. Syria deserves better, and so do we.

Cruz's eligibility

In the beginning, there was John McCain. People forget that “Birtherism” was summoned into being to challenge McCain’s quest for the Presidency, and we presciently debunked it in two posts in February 2008, one of mine and one of Pat’s.1 It was Phillip Berg, a Hillary Clinton supporter, who took the fateful step of applying the notion to Barack Obama, and thus was born a cottage industry of conspiracy.2 To their credit, the birthers sought to be consistently wrong, and went after Marco Rubio when he became flavor of the month: Rubio was born in Florida, but, they charged, he was born to non-citizen parents, and is therefore not a natural-born citizen.3 Perhaps we will one day have to confront that question, but Rubio’s swift fall from favor moots it.

The new flavor of the month is Ted Cruz, now a Texan Senator but fondly-remembered by many of us as a Texan litigator.4 I rather like him; like Chris Christy, he is a brash brawler well-suited to his home state, and while one would not wish to see him as a model for the next generation of politicians, he has a certain charm. I account the chances that he will run for President at something approaching one hundred percent. But Cruz, it turns out, was born in Canada to an American mother and non-American father,5 and this requires some discussion.

Article II section 1 of the Constitution of the United States requires that the President be a “natural-born citizen.” Constitutional text draws its content from the original meaning of that language.6 In particular, when the Constitution avails itself of the argot of the common law, it incorporates the relevant precepts thereof.7 We do not parse such terms-of-art as natural language, but rather give them the meaning that would have been inferred by a reasonable person contemporary with the founding.8 “Natural-born subject” was such a term-of-art, and, as we explained in the context of the McCain challenge, “natural-born citizen” therefore means in Article II law what Americans of the founding generation understood “natural-born subject” to mean in English law, mutatis mutandis.9 Thus, I argued, McCain is a natural-born citizen because he was born on American sovereign territory (which the Panama Canal Zone was at the time), and even if he wasn’t, Pat argued, English law at the time of the founding recognized that foreign-born children of Englishmen sent abroad by the king were considered natural-born subjects, and this rule was sufficiently embedded by 1788 that children of soldiers and diplomats would have been thought of as natural-born citizens. Either of these foundations alone would support McCain’s natural-born citizenship; both together make it a slam-dunk.

Neither, however, settle the question of whether Cruz’s citizenship is natural-born or statutory. The first is irrelevant; Canada is not American territory. The second won’t do it either, though, because Cruz’s parents were not there on the errand of the United States. They were there in a purely private capacity, and that is a distinct question.

Throughout our previous discussions, we have habitually referred to what was understood “at common law.” Truth be told, however, this has been a loose synonym for “settled English law”; the technical distinction between statute and common law is not the object in view.10 What we are interested in is English law as it would have been understood by the founding generation as the legal backdrop to their work.11 Their primary source for that law was Blackstone,12 the relevant portion of which was quoted by Pat’s post. It bears extended quotation here:

THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within … the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. …

. . . .

WHEN I say that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, 29 Car. II. c. 6., for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects, 7 Rep. 18: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of post-liminium) to be born under the king of England's allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute, [the Status of Children Born Abroad Act, 1350,] 25 Edw. III. st. 2., that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. Cro. Car. 601. Mar. 91. Jenk. Cent. 3. But by several more modern statutes, [the Foreign Protestants Naturalization Act, 1708,] 7 Ann. c. 5. and [the British Nationality Act, 1730,] 4 Geo. II. c. 21, these restrictions are still farther taken off: so that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.

A DENIZEN is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. …

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the fame state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. 12 Wm. III. c. 2. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. 1 Geo. I c. 4. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless the also takes the oaths of allegiance and supremacy in the presence of the parliament. 7 Jac. I. c. 2.13

The most obvious clutch of points to take from this are that a natural-born subject is in the first place distinct from the "artificial" subject, i.e. a denizized (by executive act) or naturalized (by legislative act) subject,14 that the subject naturalized by legislation is categorically different from the subject naturally-born,15 and that the political rights of artificial subjects were limited.16

But perhaps the more important thing to take from it is that at the time of the founding, the materials available to the founders would have suggested to them that English law on who was a natural-born subject was more pragmatic than coherent. The common law, strictly-understood,17 seems to have generally required both of the elements that Pat and I discussed: "There are two Incidents regularly that are necessary to make a subject born; First, that his parents, at the time of his birth, be under the actual obedience of the King; secondly, that the place of his birth be within the King's dominions."18 But the child of an alien, if born in the king's realm, was also held to be a natural-born subject of the king, which tilts more toward ius solis, and the child of an Englishman is a natural-born subject even if he is born outside of the king's realm so long as his parents were sent there by the king, which tilts more toward ius sanguinis. Meanwhile, statutory law tilted decisively toward ius sanguinis: The child of an Englishman in good standing was accounted an Englishman. Its drift in the eighteenth century was doubtless liberal, but its substance was ancient. Blackstone appears to frame the organizing concept as a practical one of allegiance, and this makes a lot of sense when we consider the statutes, but it is hard to understand how this can explain the common law's more ius solis moments, and so it's hard to set that concept to work in explaining the law's vector. What would the framers have made of this?

Fast-forward two centuries. In 1970, Rafael and Eleanor Cruz are working in Canada for an oil company.19 Eleanor is an American citizen, but Rafael is not.20 If we now try to apply English law as reported by Blackstone, problems quickly mount. The common-law exception privileging the children of agents of the crown doesn't apply, and the statutory privileges are framed in stubbornly androcentric terms: Children born on foreign soil "whose fathers were natural-born subjects, are … natural-born subjects themselves." The foreign-born child of a British man was a natural-born subject, but what of the foreign-born child of an British woman married to a Cuban political refugee domiciled in England? What would the founders have understood English law to say of that child's citizenship?

And what are we to infer from the Immigration Act, 1 Stat. 103 (1790), which provided that "the children of citizens of the United States, that may be born beyond sea or out of the limits of the United States, shall be considered as natural born citizens"? Does the first clause abolish the patrilineal focus of the English statutes? Does the second restate the understanding that such children were natural-born citizens, or does it imply that they were not (insofar as statutory text is not to be read as a nullity)? Does "as" mean "as if they were" (as it clearly does in the preceding clause of the statute) or "to be"?

The reader may be anxious to know how these vexing and intricate questions may be resolved, and may be frustrated to learn that I will not do so here. For our purposes, it suffices to say that although Cruz is probably eligible, a legitimate question mark hangs over it. The practical question therefore becomes this: Is Cruz really so good a candidate that we want to license another four or eight years of birtherism? Is he really so good a candidate that we are willing to risk a constitutional crisis if the Democratic candidate should lose the election's voting phase and seek victory in its litigation phase? (Do not think for a moment that they are not sufficiently brazen.) Because I have a hard time answering those questions in the affirmative, it seems to me that the existence of this question mark suffices to end Cruz's candidacy before it begins.

  1. 1. See Simon Dodd, McCain's Eligibility, Stubborn Facts, Feb. 16, 2008, http://stubbornfacts.us/politics/2008_election/mccains_eligibility; Pat HMV, On McCain's Birth and Eligibility to be President, Stubborn Facts, Feb. 28, 2008, http://stubbornfacts.us/politics/2008_election/on_mccains_birth_and_eligibility_to_be_president.
  2. 2. See, e.g., Chris Danielson, The Color of Politics 172 (2013); cf. Simon Dodd, Establishing eligibility, Stubborn Facts, Jan. 26, 2011, http://stubbornfacts.us/politics/2012_election/establishing_eligibility (collecting cases).
  3. 3. See, e.g., Javier Manjarres, Is Rubio Eligible to be President, Breitbart, April 22, 2013, http://www.breitbart.com/InstaBlog/2013/04/22/Is-Rubio-Eligible-to-be-President-of-the-U-S .
  4. 4. See http://www.oyez.org/advocates/c/r/r_ted_cruz .
  5. 5. See David Graham, Yes, Ted Cruz Can Be Born in Canada and Still Become President of the U.S., The Atlantic, May 1, 2013, http://www.theatlantic.com/politics/archive/2013/05/yes-ted-cruz-can-be-born-in-canada-and-still-become-president-of-the-us/275469/ . Any lingering doubts about Cruz's intent to seek the Presidency must surely evaporate in the face of his decision to renounce any vestigial Canadian citizenship, see Aaron Blake, Cruz will renounce Canadian citizenship, Post Politics, Aug. 19, 2013, http://www.washingtonpost.com/blogs/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-citizenship .
  6. 6. See, e.g., Simon Dodd, The limits of the Recess Appointment Power, part III, Stubborn Facts, April 26, 2010, http://stubbornfacts.us/law/limits_recess_appointment_power .
  7. 7. See Simon Dodd, Eligibility, redux, n.1, Stubborn Facts, May 2, 2008, http://www.stubbornfacts.us/politics/serranos_eligibility ; Simon Dodd, In re Firearms debate, 3 MPA __, __ n.__ (2013); accord, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995).
  8. 8. "The touchstone of Constitutional interpretation 'is the original public meaning that the text’s words and phrases would have had, in context, to an objective, informed reader and speaker of the English language within the relevant political community, at the time the Constitution was written and adopted.'" The Limits of the Recess Appointment Power, supra, part III.A.1 (quoting Michael Stokes Paulsen, The War Power, 33 Harv. J. of L. & P.P. 114, 116 n.5 (2010)); see generally ibid., n.5.
  9. 9. United States v. Wong Kim Ark, 169 U.S. 649, 654 (1898); Minor v. Happersett, 88 U.S. 162, 167 (1875). This could be changed by constitutional amendment, but it probably has not been changed (as might be contended) by section one of the Fourteenth Amendment, and I assume that this is so for our purposes here.
  10. 10. Cf. Thomas Wood, An Institute of the Laws of England 10-11 (1754).
  11. 11. Cf. Astoria Federal S. & L. Ass'n. v. Solimino, 501 U.S. 104, 108 (1991) ; Merck & Co., Inc. v. Reynolds, __ S. Ct. __, 2010 WL 1655827, at *11 (April 27, 2010).
  12. 12. Neder v. United States, 527 U.S. 1, 30-31 (1999) (Scalia, J., concurring).
  13. 13. 1 William Blackston, Commentaries on the Law of England 354, 361-62 (1765) (emphases added and some citations omitted).
  14. 14. Cf. Wood, supra, at 23.
  15. 15. Thus, to preempt a future iteration of this problem, it is beyond cavil that an American whose citizenship was conferred by legislation, even if conferred in momento partus by legislation, is a naturalized and not a natural-born citizen.
  16. 16. Blackstone cites the Act of Settlement 1700, 12 Wm. III. c. 2 § 3: "[N]o person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging, although he be naturalised or made a denizen (except such as are born of English parents), shall be capable to be of the privy council or a member of either House or Parliament or to enjoy any office or place of trust either civil or military or to have any grant of lands, tenements or hereditaments from the Crown to himself or to any other or others in trust for him."
  17. 17. Compare, e.g., entry Common law in Giles Jacob, A new law-dictionary containing the interpretation and definition of words and terms used in the law etc (1729) ("the Law of this Kingdom, simply, without any othyer Laws; for such Laws as were generally holden before any Statute was enacted in Parliament to alter them"), with entry Statute, in ibid.
  18. 18. Entry Alien, in ibid.
  19. 19. Kate Zernike, A Test for the Tea Party in Texas Senate Race, Nov. 17, 2011,
    http://www.nytimes.com/2011/11/18/us/politics/ted-cruz-is-a-test-for-the-tea-party-in-texas-race.html?_r=2&
  20. 20. He became a naturalized citizen in 2005 and appears to have been a resident alien in the United Statesin 1970. See Ted Cruz, Wikipedia, http://en.wikipedia.org/wiki/Ted_Cruz#Early_life (visited Aug. 20, 2013).

"Egypt is right back where it started."

I’m reminded of something Lebanese President Amine Gemayel said during the civil war in the 1980s. “Everyone is against everyone else, and it all keeps going around and around in circles without anyone ever winning or anything being accomplished.”

Read the whole thing.

Well Of Course It's The Hypocrisy

For your examination:

There is a great deal to be debated over the PRISM program, the morality of Edward Snowden's leaks, and proper balance between privacy and security, but one thing ought to be clear: This whole thing started when Barack Obama was merely a state senator from Illinois, and if you're mad about this, supported the Patriot Act, and made your bread attacking Democrats for opposing the Patriot Act, then you're full of crap.

Still alive!

The last blog post made here was one year ago tomorrow. The site was technically out of commission for much of the past year because the log file wasn't configured very well and the database grew too large. I've got that fixed for now. Me, I started a new job a year ago (same employer, different office and job), and my wife is having a baby some time in the next week or so!

Anyway, I noticed that the anniversary of the last post was coming up, and I didn't want it to be a full entire year between posts, so here's this one. I don't know that Stubborn Facts will get resurrected, but I've been reading through some old posts recently and am reminded of the wonderful debates we supported here. Thanks to Simon, Tully, Rafique, and all of our guest posters and regular commenters for the fun we had in our little corner of the internet.

The aftermath

Yes, three quarters of the country can be wrong; the meanings of legal texts aren't decided by polls. But which texts are law can often be decided by polls, and if the President hoped to make a cause celebre of a decision by the court to strike down Obamacare, that door would appear to have been closed by the fact that even a New York Times poll says that three quarters of the country—so read four fifths, correcting for bias—would agree with the court.

Walker wins in Wisconsin!

Unions hardest-hit. I liked this line, from Politico's coverage: "Vince Lombardi, the man who taught [Wisconsinites] to think with clarity about the severe consequences of victory and defeat, once offered this gem about life: 'Show me a good loser, and I’ll show you a loser.'” Somehow one gets a sense of what Lombardi would have made of John McCain's 2008 autorotation of a campaign.

" But... someone in that campaign should have realized how mockable this would be and said no."

"And they do all this secure in the knowledge that their opponents are genuinely worried about killing innocent people."

Abortion and the population: New Gallup numbers

Only four in ten Americans will admit to being pro-choice; half identify themselves as pro-life. But, remember, WE'RE the kooky extremists who are waging a war on women, right?

As I've pointed out before, the problem with majoritarian rhetoric is that if you slip into the minority, you're in trouble.

Predictably, liberal feminists like Shakesville's Melissa McEwan are spinning furiously, but Melissa's argument just doesn't work. She says that a different graph, finding 52% of Americans want abortion to be “[l]egal under certain [circumstances],” proves that “77% of USians still favor keeping abortion legal in some form” (presumably the abominable neologism “USians” is cod political correctness), a number that she obtains by aggregating the 52% with the 25% who think it should be legal under any circumstances. But why count the 52% with the 25% instead of the 20% who think it should be illegal in all circumstances? The claim that 77% of Americans wouldn’t ban abortion under all circumstances is weak tea for someone in Melissa’s position, and the same graph also proves, no less correctly and considerably more apropos, that 72% of Americans favor tighter restrictions on abortion than can exist under Roe-Casey, which means that 72% of Americans would tighten abortion law from the abortion-on-demand status quo, and, if they were consistent and it was explained to them properly, favor the overruling of Roe and its poisonous progeny.

Context, Sweet Context

Sean King, a second-grader at a Colorado school decided to dress up as his favorite historic figure for a class project. He chose Dr. Martin Luther King, and wore black makeup as a part of the costume. Pop quiz: Did the faculty understand the context, and praise him for his efforts, or freak out, and force the kid to take off the makeup or be sent home?

You only need one guess.

Here's the thing: As a black man, I am sensitive to the obvious racial context of blackface. You needn't be black to be offended by blackface, or racism of any kind. The thing is, this isn't blackface, at least not the Al Jolson, minstrel-show kind most people think of. Precious context is required here: Shouldn't praise young Sean King for having such admiration for Dr. King, rather than crying racism, where it's reasonably clear none exists?

Context is everything, and this reeks of a political correctness that really ought to be fought tooth and nail...

HT: Althouse

On being right and being rude

I have made it quite clear over the years, that I don't think that the so-called "delegates" should be speaking in any House hearings, except perhaps as a witness, so my immediate thought on seeing the headline " D.C. Delegate Norton silenced at abortion bill hearing" was not sympathetic. But it was as a witness that Ms. Norton sought to appear! While I disagree with the House's sufferance of her as an ersatz member, and while I suspect that I would disagree with her testimony, my inclination is to see the refusal as churlish and unreasonable. This is not like the Sandra Fluke business. Insofar as Congress is proposing to legislate in its capacity as overlord of D.C. and she is an elected representative of the D.C. community (whether she ought to be or not), the committee would be as well-advised to hear from her as to hear from, say, the mayor of the district. And insofar as since Ms. Norton is in fact a member of the Congressional community (whether she ought to be or not)—no more or less than the Clerk of the House, the Secretary of the Senate, and so forth—while the committee would have been within its rights to decline to invite her testimony, to refuse to her permission to do so, sought in good faith, would be exceedingly ill-mannered.

Committees don't have to agree with what they hear from witnesses. To be sure, committees shouldn't be soapboxes, either for members or witnesses—I would lock the cameras out of the committee rooms as well as from the Capitol, and see no reason why the commmittee would have to provide a public platform for Norton's comments. But out of professional courtesy if nothing else, the committee should throw out the cameras, and (given what I know of Ms. Norton's views), listen politely to her, thank her for her time, and then ignore her.

You can be an advocate for Western civilization, and you can be a madman who guns people down for their political beliefs,

but you cannot be both. It's impossible.

"So we all agree that Obama was lying on the issue, the rest is an argument about the timeline."

"Who will defend these people, these truest heroes of modern freedom? That is the only question."

One of those people is liberal Muslim freedom fighter Irshad Manji, who was attacked by Islamists in Indonesia, for promoting reform within Islam.

For all the talk about the "war on women," the idiotic base politics of foolish Republicans may be worthy of scorn, but let's put things in perspective, folks--actual fascists are waging a full-scale war on women, which is a part of a larger war on free thought. If you're mad about a ban on contraception, but not about Irshad Manji being attacked with iron bars, then you're not serious...

HT: Michael Totten

Has the tone changed?

Greg Stohr at Bloomberg, with my emphases and comments:

In January, Supreme Court Justice Antonin Scalia accused the U.S. Environmental Protection Agency of “high-handedness.” He was just getting warmed up. [So was the court; the agency lost that case--Sackett v. EPA--nine to nothing.]

. . . .

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism ... [that he] is crossing the line that separates tough scrutiny from advocacy. ¶ “His questions have been increasingly confrontational,” said Charles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.” [Prof. Fried has made clear in a number of appearences and interviews that he regards the challenges as risible. It's thus unsurprising that his perception would be skewed.]

. . . .

The justice has never shied away from controversy. ... In 2009, he told a college student she had posed a “nasty, impolite question” when she asked whether book tours by the justices undermined their case for banning camera coverage of arguments. [I've spent a fair amount of time trying to track down sourcing for this, and while there are ample sources giving the quote from Scalia, I have yet to find any source that records the wording of the question, and it's beyond cavil that a query that might be substantively reasonable can always be framed in a nasty, impolite manner. Without the text of the question, the criticism of Scalia's response falls flat.] ...

. . . .

Of late, Scalia’s most pointed remarks have come at the Obama administration’s expense. [Is that so? I'd like to know how you'd quantify that.]

In January, [in Sackett,] he directed his fire at Malcolm Stewart, a Justice Department attorney. Stewart was defending the EPA’s use of administrative compliance orders that demand an end to alleged environmental violations, in many cases insisting that recipients restore their land to its previous state ... [and] Scalia made his contempt clear after Stewart said that people and companies could seek to change any “infeasible” requirements. ¶ “Well, that’s very nice,” the justice said. “That’s very nice when you’ve received something called a compliance order, which says you’re subject to penalties” of $32,500 per day. [What Stewart actually said was that "every version of the compliance order said to the Sacketts [that] if you think that there are things ... in here that are wrong or compliance measures that you regard as infeasible, you're welcome to tell us." Tr. 34 ff. And as Scalia was pointing out, a right to ask an agency to reconsider an order that may be ruinous is cold comfort indeed if the agency is charging you ruinous sums of money for every day that you don't comply, including the time taken for your request to be processed. Scalia was right. Even Stewart conceded shortly thereafter that the EPA had put the Sacketts "an unattractive position." Id., at 37.] ¶ When Stewart said the EPA had modified the order at issue, dropping a requirement that an Idaho couple replant vegetation on their property, Scalia scoffed again. “It shows the high- handedness of the agency, it seems to me, putting in there stuff that is simply not required,” he said. [See ibid. "[W]hen litigation was threatened or actually brought," Scalia had noted, "the EPA modified its order: Oh, you don't have to plant the trees. Does it do this as a matter of practice, issue compliance orders that go well beyond what the what the [Environmental Protection Act] would -- would demand?" Does it not show high-handedness for an agency to issue compliance orders that go well beyond what the enabling statute demands, if that is indeed what happened?] ¶ The court unanimously ruled against the EPA in March, giving landowners more power to challenge compliance orders in court. [So clearly Scalia was way off-base, right? The EPA's position was so reasonable that it attracted support from... um... not a single justice. That's... nice.]

. . . .

With health care, Scalia’s primary target was Verrilli, the administration’s top Supreme Court lawyer. Defending the law’s requirement that Americans get insurance or pay a penalty, the solicitor general argued that uninsured people often receive care, even if they can’t pay for it, because of the “social norms to which we’ve obligated ourselves.” ¶ “Well, don’t obligate yourself to that,” Scalia said. [We have to administer the death penalty because of social norms to which we've obligated ourselves. Well, who's "we" and why are they obliging us? How does that supply a font of (or obstacle to) federal power? Does a decision by a determined minority to oblige Americans to do something supply authority for the government to do that thing? Can the obligation of a treaty in which the United States government promised another nation that it would do something that it lacks Constitutional authority to do supply the power to do it? Of course not. Scalia is right.] ¶ Later, Scalia called one strand of the government’s defense -- its contention that Congress could legally enact the law as a tax -- “extraordinary.” [So what? "Extraordinary" isn't unusual Scalian vocabulary, and while I realize that that sounds odd, it's not a contradiction when his ordinary business is to deal with extraordinary cases. This term, he called the government's argument in Hosanna-Tabor extraordinary (by the by, Justice Kagan called it "amazing"); extraordinary too was Justice Kennedy's opinion for the court in Lafler. Once, Justice Thomas' opinion for the court was extraordinary. Last term, too. And in Santos. And Scalia's not the only Justice to use that word. Or the only person at the court: Sometimes, the SG tells the court that things are extraordinary; indeed, Mr. Stewart did so in Sackett, the case mentioned above. So.] ¶ The following day, he mocked an assertion by another Justice Department lawyer, Edwin Kneedler, as the court considered what would happen to the rest of the law should a key provision mandating that most Americans obtain insurance be declared unconstitutional. Kneedler said the court should look at “the structure and the text” of the 2,700-page statute. ¶ “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked, referring to the provision of the U.S. Constitution that bars cruel and unusual punishment. “You really want us to go through these 2,700 pages? [It's a bit late for Greg to come on all humorless having observed above that "[i]n the courtroom, he is quick with one-liners, drawing laughter more frequently than any other justice...." What does Greg want, a rimshot? Even the transcript adds "(Laughter.)" Tr. 38.]

. . . .

Scalia described as “extraordinary” yet another administration position, this time when Verrilli urged the court to strike down Arizona’s illegal-immigration law. Scalia bristled when the solicitor general said “we have to have the cooperation of the Mexicans,” something Verrilli said the federal government could best secure without state interference. “So we have to enforce our laws in a manner that will please Mexico?” Scalia said. “Is that what you’re saying?” [Again, the point isn't objectionable, and I say that despite being somewhat sympathetic to Verrilli's argument. Verrilli argued, among other things, that generally, the foreign relations of the United States (indisputably a federal business) with a given country are or may be affected by how we treat illegal immigrants from that country, and in particular, our ability to enforce immigration laws depends (I think that's a little strong, myself) on the cooperation of the "donor" country, especially in Mexico's case. Thus, the argument goes, the United States has an interest in enforcing immigration law in a way that doesn't antagonize other countries. See Tr. 69 ff. Scalia's phrasing might have been unkind, but it wasn't unfair, unreasonable, or incorrect.]

. . . .

The uncited

He's still grousing...

The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices

Yes, well; that's unsurprising, as I explained a few moons of Jeff's whining about the case ago.

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