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Sunday, September 20, 2015

Deparmentalism, popular constitutionalism, and constitutional politics

Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.

Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.

President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal  proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.

The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals),  until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).

For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."

But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.

Posted by Howard Wasserman on September 20, 2015 at 10:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


I don't agree. First, non-crazy people like Rogers Smith think the precedent you cite can be cabined to children of legally present aliens. Precedent has been narrowed in more aggressive ways, often. Second and more fundamentally, when a state or Congress passes a law of a sort that the Court held unconstitutional long ago solely in an attempt to force a test case, we don't call that departmentalism - do we? If a state bans abortion just to take a shot at overruling Roe, we don't say they're disobeying precedent. We might if they actually prosecuted, but if they sit and wait to be sued, I think disobeying precedent is only an accurate description of what they're doing in a misleadingly formalist sense. Likewise, if Trump initiates deportation proceedings against one or two birthright citizens, I'd call that a test case, not disobedience - even assuming he'd need precedent to be overruled to prevail.

Posted by: Asher | Sep 22, 2015 8:42:41 PM

Plyler v. Doe is admittedly not directly about the citizenship of children of non-citizen aliens, but it does address the "subject to the jurisdiction" matter & quote the 1898 case on the point as well.

Posted by: Joe | Sep 21, 2015 11:47:38 AM

Plyer v. Doe might help here. It's a bit less old.

Posted by: Joe | Sep 21, 2015 11:44:03 AM

"...(admittedly old) precedent ..."

I was unaware that SCOTUS decisions had an expiration date.

However, I have seen one case (Shelby County vs. 14th Amendement).

Posted by: Barry | Sep 21, 2015 11:19:29 AM

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