Saturday, January 25, 2020

Judge Easterbrook does judicial departmentalism

People are talking about Judge Easterbrook's opinion for the Seventh Circuit in Baez-Sanchez v. Barr, taking the BIA to task for not following the court's instructions on remand. Easterbrook is outraged about executive conduct that "beggars belief.' The court has "never before encountered defiance of a remand order,and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails."

Easterbrook then says the following:

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistakenthough it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

Although he does not use the term, this is a nice and succinct encapsulation of judicial departmentalism: The executive can disagree with and disregard a judicial decision it regards as mistaken in some other case. But the executive cannot disregard the court's mandate in the current case when that mandate has become final and unreviewable.

Posted by Howard Wasserman on January 25, 2020 at 10:31 AM in Civil Procedure, Howard Wasserman, Immigration, Judicial Process | Permalink | Comments (6)

Monday, July 16, 2018

There Is Nothing New Under the Sun - Xenophobia Edition

PapaParisPart of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing. 

For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected.  (I like to think that Hoover's two issues with Nathan were related to each other.)

For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

There was an interesting postscript to that story.  Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.

So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience.  The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

And here's more.

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss.  As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes.  Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment.  Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself.  Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation.  Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

 Oh, and by the way, Nathan insisted to me many years ago that he was a Republican.

Posted by Jeff Lipshaw on July 16, 2018 at 07:59 AM in Blogging, Current Affairs, Immigration, Lipshaw | Permalink | Comments (1)

Wednesday, January 13, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.

Posted by Jack Chin on January 13, 2016 at 11:16 PM in Immigration, Law and Politics | Permalink | Comments (34)

Tuesday, December 08, 2015

Trump and Religious Exclusion from the US: The Mormon Precedent

Commenting on Donald Trump's proposal to exclude all prospective Muslim immigrants from the United States, Nancy Morawetz of NYU, one of the nation's leading scholars and practitioners of immigration law, was quoted in the NY Times as saying she could not "recall any historical precedent for denying immigration based on religion."  There is at least one historical example, the 1891 federal exclusion of polygamists, which, in the Immigration Act of 1917,  was revised to make clear that it applied to those "who practice polygamy, or believe in or advocate the practice of polygamy." 39 Stat. 874, 875 sec. 3.  The law's targeting of pure belief, independent of conduct, is paralleled by Davis v. Beason, 133 U.S. 333 (1890), in which the Court upheld the Idaho Territory's disenfranchisement of polygamists, or those who belonged to an organization which advocated or believed in polygamy.   The Court explained: 

It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed,
and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further
from the truth. . . . requiring every person desiring to have his name registered as a voter to take an oath that he does not belong to an order that advises a disregard of the criminal law of the
territory, is not open to any valid legal objection to which out attention has been called.
Davis v. Beason, 133 U.S. 333, 345 (1890) abrogated by Romer v. Evans, 517 U.S. 620 (1996).  Here, the Court made clear that certain dangerous beliefs may be regulated, as may membership in organizations advocating dangerous ideas.  Davis v. Beason, mercifully, has been overruled, and the immigration law now provides only that "[a]ny immigrant who is coming to the United States to practice polygamy is inadmissible." 8 USC 1182(a)(10)(A).

Posted by Jack Chin on December 8, 2015 at 12:31 PM in Immigration | Permalink | Comments (1)

Saturday, October 31, 2015

Happy Birthday, Immigration and Nationality Act of 1965!

This month marks the 50th Anniversary of LBJ's signing of the Immigration and Nationality Act of 1965.  The 1965 Immigration Act is, in a way, (I believe) the most important and effective of the great legislative accomplishments of the Second Reconstruction.  Equal voting rights remain elusive half a century after the Voting Rights Act of 1965; of course, the Act was partially invalidated, and faces further challenges.  And very few think that the Civil Rights Act of 1964 has more or less eradicated discrimination from employment and public accommodations.  But through the 1965 Immigration Act, federal immigration law, which had been a cornerstone of White Supremacy policy in the United States before 1965, put the U.S. on track to be a majority minority nation in little more than a generation from now.  The policy change wrought by the 1965 Immigration Act was relatively abrupt, and relatively complete.  As Rose Cuison Villazor and I note in a piece on The Huffington Post,  three-quarters of immigrants before 1965 where white, and since then, operating on a race-neutral basis (at least in the sense that there are no formal racial preferences or barriers), three-quarters or more have been from Asia, Africa, or Latin or South America.  Rose and I edited (and wrote chapters for) a book on the Act, The Immigration and Nationality Act of 1965: Legislating a New America, published this month by Cambridge University Press.  On this C-SPAN program, Rose, Deep Gulasekaram, and Jayeth Rathod, among others, discuss the 1965 Immigration Act.

Posted by Jack Chin on October 31, 2015 at 02:21 PM in Immigration | Permalink | Comments (0)

Wednesday, January 21, 2015

Acoustic Separation and Immigration Reform

In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions.  For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused.  But we don't want people running around factoring in this possibility of  legal excuse into their decisions at the moments they are actually under duress.  We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.  

I give this background only by way of explaining the concept.  My rumination today has a first cousin relationship to Dan-Cohen's framework.

I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union.  To English speakers, Joni Ernst made no mention of immigration at all.  That is the story the GOP wants to tell to its English language base.  But the party also needs support from the Spanish speaking community as well.  So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response,  "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."

I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential.  Acoustic separation is never complete, but most people don't dig that deeply into law or policy.  While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not.  I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away.  (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)

I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups.  Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union".   In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years. 

Posted by Dan Filler on January 21, 2015 at 11:34 AM in Current Affairs, Immigration | Permalink | Comments (0)

Tuesday, October 14, 2014


Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)

Wednesday, April 24, 2013

Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys

The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.

Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.

I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.

I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.

Posted by Ivan Cohen on April 24, 2013 at 11:03 AM in Article Spotlight, Criminal Law, Immigration, International Law, Science | Permalink | Comments (1) | TrackBack

Tuesday, October 16, 2012

10 Tips for Giving for a Job Talk that Doesn't Suck

My FIU colleauge Joelle Moreno (who is our Associate Dean for Faculty Research and Development) offers an updated version of her job-talk tips, which we posted last year. As hiring season ramps up this week, hope people, on both sides of the process, find these helpful.

Remember you are salmon swimming upstream

Every school that paid the big bucks to attend the meat market is bringing back a slate of candidates.  It may only be six, but more likely it is ten to twelve.  This means that the faculty is exhausted before the first candidate even arrives.

Most of you have received bad advice.

If the 75 job talks I have attended over the past dozen years are any indication, most faculty candidates have been advised that the goal is to convince the faculty that you are a deep thinker and the smartest person in the room.   This is bad advice.  Your goal is to be interesting, to make us understand why you care, and to leave us wanting more.

1.              Don't be Boring

Your most important and challenging task is not to convince us that you are smart.  Assume that all of the candidates we have invited to campus are smart.  You have 30 minutes to make us care about your ideas and your work.  The best way to do this is to explain why you care.

2.              Be Clear

Use road maps and signposts.  Begin with a road map for your talk that explains why you are interested in this topic and what you hope to accomplish in your talk and your research.  Use signposts to signal transitions (e.g., "I'll begin with a brief discussion of the legal history."  "Now I will explain why recent developments in behavioral economics provide new insight.")  If we can’t understand what you are saying and where you are going -- what hope do our students have?

 3.              Don't be Slick

If you try to sex-up your talk, name drop rock star academics, or imbue your talk with jargon or highfalutin theory, you don't sound smart, you sound arrogant. 

 4.              Be Organized

Start strong and end strong.

 5.              Don't be a Techie, Unless....

Don't use PowerPoint unless you plan to show us:  (1) pictures (e.g., If your work focuses on the environmental impact of particular regulations on a rare spotted songbird; show us the bird); or (2) a simple graphic that illustrates complex information (e.g., a graph showing trends, a timeline).  If you must use PowerPoint, do not trick your slides out with fancy animations or cute cartoons. 

 6.              Be Prepared

A good job talk provokes questions and debate.  This is not a happy accident.  You must make this happen.  If you present your ideas clearly and explain why these questions are interesting, we will engage with you.  The best way to provoke good questions and comments is to practice giving your job talk to three of the smartest people you know -- who know nothing about the subject -- and then revise based on their suggestions.

7.              Don't be Unrealistic

Don't waste time during your talk regaling us with the details of your brilliant and ambitious research agenda.  We know you are just starting out, so claiming that you have shattered the paradigm or forced Professor X to reconsider 30 years of work are just spurious nonsense. Instead, near the end of your talk raise three provocative questions that you intend to explore in the future and invite us to respond.

8.              Be Relaxed, but not too Relaxed

Use notes.  It is a short talk and you need to stay on task especially if you are interrupted with questions. Besides, Spaulding Gray needed his notebook and he was a more interesting speaker than any of us will ever be.  But don't ever read anything especially a PowerPoint slide.

9.              Don't be a Suck-Up

Do not tell us that at dinner last night our colleague Bill offered wonderful insight that has really changed the way that you are looking at these questions.  Even if you are genuinely nice person who hopes to befriend our entire faculty, you sound like an obsequious sycophant.  Besides, Bill may be the biggest and most vacuous blowhard on our faculty (we all have at least one); so you are not sucking up, you are sucking down.

10.           Be Reasonable

Do not, under any circumstances, speak for more than 30 minutes.


Finally, remember it's not just what you say, it's how you say it.  Communicate your enthusiasm.  Use your voice (volume and pacing) for emphasis.  Use your space; don't trap yourself behind the podium.  Make eye contact with us and assess our interest.  If we start to look bored, change it up, throw us a question, or grab our attention by telling us the most interesting thing you can think of about your work.

Posted by Howard Wasserman on October 16, 2012 at 08:33 PM in Immigration, Teaching Law | Permalink | Comments (15) | TrackBack

Thursday, April 19, 2012

Arizona v. United States: Criminalizing Failure to do the Impossible

The amicus briefs in the SB1070 case are as good and interesting as in any case I have seen.   They include briefs from states, members of Congress, and law enforcement authorities on both sides.  There is also  a brief from former Democratic and Republican cabinet secretaries opposing the law.

The Brief for the Leadership Conference on Civil and Human Rights and other groups was  written in part by NYU Law students who I had the privilege of chatting with by email when they were drafting it .  One important argument they advance, which I have not seen elsewhere, is that Section 3 of SB1070 criminalizes a failure to comply with a duty under the Immigration and Nationality Act which, under the intracacies of federal law, does not in fact exist. 

Section 3 makes it an Arizona crime to fail to register with the federal government as required under 8 U.S.C. 1302(a).  Failure to register as required is indeed a federal crime.  But it is not a crime which people who enter without inspection, that is, most undocumented immigrants, can commit.  This is because the statute directs the federal authorities to promulgate forms to carry out the registration program.   They have done so, but none of those forms are directed to, or appropriate for, undocumented people to fill out.  The forms (and thus the requirements) are all aimed at people entering the United States lawfully, or who have access to some path to lawful presence.  This has been clear at least since the Eisenhower Administration promulgated a list of registration forms aimed at lawful residents and visitors.

The United States could, of course, draft and make available a form for undocumented people, and anyone who willfully failed to file would be in violation of the law.  They have not done so, possibly because they regard it as unlikely that they would get many takers, and existing legal tools and penalties are sufficient to remove and punish those here without authorization.  In addition, 8 USC 1304(d)  requires the issuance of a receipt or other immigration document to anyone who registers.  If undocumented people were subject to registration, and could register, this section implies that they would, by so doing, become legal!

The brief's punch line: "Since EWIs will have no way to comply with this phantom registration requirement, Section 3 will criminalize their presence in this country.This is in direct conflict with Congress’s decision not to criminalize mere presence. All legislative proposals to criminalize mere presence have failed." 

This little jewel of an argument  makes clear what critics of the law have been saying from the beginning: States generally do not have the knowledge of immigration law to make these kinds of subtle policy choices.  When they blunder ahead anyway, their basic purpose is not to help carry out the federal program, but to go beyond it, to impose punishments, restrictions and requirements that Congress and the officials designated by Congress to carry out the law have chosen not to.

Posted by Jack Chin on April 19, 2012 at 09:15 PM in Constitutional thoughts, Criminal Law, Immigration | Permalink | Comments (8) | TrackBack

Saturday, January 28, 2012

Rubio, Republicans, and immigration

My FIU colleague Ediberto Roman has a piece at The Huffington Post discussing a recent speech by Florida Sen. Marco Rubio on the subject of immigration, in which Rubio, while not endorsing the DREAM Act, called for changes in Republican rhetoric and discussion on the topic. Rubio apparently is on the short list for Vice President (I have not been paying attention), so Ediberto is even more enthusiastic that a top GOP leader would bring a different voice.

Ediberto has often stated his belief that Latino and Hispanic voters may not support President Obama because he has not done enough on immigration. The key, of course, is finding a Republican alternative. Perhaps Rubio, even if only the # 2 on the ticket, would provide that.

Posted by Howard Wasserman on January 28, 2012 at 07:19 PM in Article Spotlight, Howard Wasserman, Immigration, Law and Politics | Permalink | Comments (0) | TrackBack

Wednesday, December 07, 2011

For All You 4th Amendment Nerds

Like other law profs across the country, I’m sometimes asked to comment on legal issues for the local media.  Pursuant to one such media request, I recently learned about an order for supplemental briefing in a local case that raises some interesting 4th Amendment questions.  Those 4th Amendment questions arise out of the ongoing SB 1070 immigration litigation.

The case at issue is a federal lawsuit claiming 4th and 14th Amendment violations based on allegations that the local sheriff’s office is engaging in racial profiling and pretextual traffic stops in order to ascertain the immigration status of Latinos.  (More information about the case can be found here and here.)  Both parties in the case have filed motions for summary judgment --- the sheriff’s office has moved for summary judgment on both the 4th and 14th Amendment claims; the plaintiffs have moved for summary judgment on the 14th Amendment claim.

Reading through the motion papers, I assume the plaintiffs didn’t move for SJ on the 4th Amendment claim because each of the traffic stops could be justified on non-racial grounds.  Whren v. United States, 517 U.S. 806 (1996), tells us that pretextual traffic stops can’t be challenged successfully under the 4th Amendment --- that is, a stop that can be justified under the Fourth Amendment based on a pretextual reason is constitutional even if the officer’s subjective motive for stopping the car cannot be justified under the Fourth Amendment.  For example, an officer can stop a car when the driver runs a stop sign even though the officer only wanted to stop the car because she believed the driver was transporting drugs, and that belief was not supported by probable cause or reasonable suspicion.

This case seems to fit squarely within Whren.  The lead plaintiff was a passenger in a truck that exceeded the speed limit.  There is ample evidence that officers wanted to stop the truck because of immigration violations, but did not have probable cause (or reasonable suspicion) to support their belief of immigration violations.  So instead officers followed the truck for a while, waited for the driver to commit a traffic violation, and then pulled the truck over as soon as the driver exceeded the speed limit.  During the stop, the officer asked the passengers about their immigration status, requested immigration documentation from the passengers, and arrested the lead plaintiff for what the officer perceived as a violation of federal immigration law.

So why is this an interesting case?  The district court just issued an order for supplemental briefing that suggests the ordinary Whren pretextual stop analysis might not apply.  In particular, the court stated:

In United States v. Arizona, 641 F.3d 339, 362 (9th Cir. 2011) the Court held that (1) there is no “federal criminal statute making unlawful presence in the United States, alone, a federal crime.”  Such violations, as well as other immigration “status” offenses according to the case, constitute civil violations of federal immigration law. The Arizona case also makes clear two additional points: (1) “states do not have the inherent authority to enforce the civil provisions of federal immigration law,” and, (2) that “an alien’s admission of illegal presence . . . does not, without more, provide probable cause of the criminal violation of illegal entry.”

This analysis from United States v. Arizona --- the Ninth Circuit opinion that upheld a preliminary injunction of several sections of Arizona’s controversial SB 1070 --- leads the district court to ask the parties to brief a number of issues, including:

1. What good faith legal basis is there, if any, for [the sheriff’s office] to assert that it has the authority going forward to enforce civil violations of the federal immigration law?

2. What good faith basis is there, if any, for [the sheriff’s office] to assert that it presently has the authority pursuant to any enforceable state or federal law to detain any person based upon a reasonable belief, without more, that the person is not legally present in the United States? [Note: In 2009, after this lawsuit was filed, DOJ revoked the sheriff office’s 287(g) status.]

3. What good faith legal basis is there, if any, for the proposition that Whren v. U.S., 517 U.S. 806 (1996), justifies pretextual stops for the ancillary purpose of investigating civil immigration violations when the officer conducting the stop does not have the authority to enforce civil immigration violations?

While all three of these questions are worth discussing, I think question #3 is particularly intriguing.  In an ordinary Whren case, officers are using a pretextual reason for a stop (e.g. a traffic violation) because their subjective reason does not give them sufficient authority --- e.g., because they do not have probable cause to believe the suspect is engaged in a narcotics crime.  But in that ordinary case, the officer generally has authority to investigate narcotic crimes, she just doesn’t have authority to stop this particular driver for that particular reason.  The district court’s order raises the question whether the ordinary Whren analysis applies when officers don’t have authority to investigate the issue that forms their subjective basis for the stop.  Questions #1 & #2 suggest that even if the traffic stop in this case was permissible (because the driver exceeded the speed limit), the officer was not permitted to detain the passengers in the truck to question them about their immigration status.

I know that some courts would assess these issues based solely on whether the officer’s immigration questions unreasonably lengthened the traffic stop.  Would those courts take into account the fact that the driver of the truck was never given a citation?  Or that other plaintiffs were not subjected to consequences for the pretextual basis of the stop (the traffic violation), so long as they were able to provide proof of citizenship?  More generally, what do you 4th Amendment types think about the questions the district court is raising?

Posted by Carissa Hessick on December 7, 2011 at 04:52 PM in Constitutional thoughts, Immigration | Permalink | Comments (2) | TrackBack

Monday, November 07, 2011

Global Justice and Medical Tourism

Over the last few years, when I have not been working on bioethical issues relating to reproduction and reproductive technologies, I have been working on a different project relating to medical tourism – the travel of patients from one country (the “home country”) to a foreign country (the “destination country”) for the primary purpose of getting health care.  I have done three major law review articles on the subject (and a few other bioethics and medical journal articles). The first law review article focued on quality of care and medical malpractice recovery.  The third, which is forthcoming in the Cornell L. Rev, focuses on circumvention tourism -- patients who travel abroad for the purpose of circumventing a home country restriction on access, such as in the case of abortion, assisted suicide, female genital cutting, and reproductive technology use in some contexts.  The second law review article is coming out this week in print, but I have already posted it online here. This piece of the project, I hope, will be useful beyond medical tourism to those interested in globalization and global justice theory more generally.

A good way to frame my subject of inquiry is by way of a recent New York Times article  by Somini Sengupta, entitled “Royal Care for Some of India’s Patients, Neglect for Others,” which captures a particular global justice critique well: She begins by describing the care given at Wockhardt Hospital in India to “Mr. Steeles, 60, a car dealer from Daphne, Ala., [who] had flown halfway around the world last month to save his heart [through a mitral valve repair] at a price he could pay.” The article describes in great detail the dietician who selects Mr. Steele’s meals, the dermatologist who comes as soon as he mentions an itch, and Mr. Steeles’s “Royal Suite” with “cable TV, a computer, [and] a mini-refrigerator, where an attendant that afternoon stashed some ice cream, for when he felt hungry later.” This treatment contrasts with the care given to a group of “day laborers who laid bricks and mixed cement for Bangalore’s construction boom,” many of whom “fell ill after drinking illegally brewed whisky; 150 died that day.” “Not for them [was] the care of India’s best private hospitals,” writes the article’s author; “[t]hey had been wheeled in by wives and brothers to the overstretched government-run Bowring Hospital, on the other side of town,” a hospital with “no intensive care unit, no ventilators, no dialysis machine,” where “[d]inner was a stack of white bread, on which a healthy cockroach crawled.”

There is also a more academic or policy strain of critiques among those who write about global health and/or globalization.

The goal of this paper is to examine this kind of critique.  Here is my take...

As I argue in the paper these kinds of critiques should be understood as raising there kinds of questions: (1) An empirical question: Does medical tourism have negative effects on health care access for the poor in the destination country? (2)  The normative question: If so, do home countries or international bodies face obligations to prevent or correct those negative effects, and under what circumstances? (3) The regulatory question: If so, how might they do so?

I discuss some of the development economics and health system design pertaining to the first question and regulatory options as to the third question, but most of the paper is focused on the second normative question. This gives me an opportunity to engage ongoing debates in normative and applied ethics between theories of global justice, cosmopolitan, statist, and intermediate. I discuss the ways in which these theories suggest we may owe different things to those inside versus outside the nation state, or the ways in which the obligations may be activated under different circumstances depending whether those who suffer are our fellow nationals or foreign.  While my focus is on medical tourism, I also show how some of the ideas I develop are applicable to other instances of the globalization of health care such as medical migration (the brain drain).  The goal (you, dear reader, can judge if it is successful) is to have a dialogue between these theories and the concrete medical tourism cases, to see ways in which the theories speak to the cases but also the ways in which the cases identify gaps, ambiguities, and possible divergeny ways of filling the blanks.

 I am currently editing a book for Oxford on legal and ethical issues in health care globalization and starting a new book project on medical tourism specifically. While I have found the global justice literature useful as to these project, I actually think it has many more applications to the work done by law prawfs – for example in immigration law and labor and employment law, among other areas.  Since this law review article represents a part of an ongoing project, I am definitely eager for your thoughts.

Posted by Glenn Cohen on November 7, 2011 at 11:17 PM in Article Spotlight, Books, Immigration, International Law, Legal Theory | Permalink | Comments (7) | TrackBack

Tuesday, June 14, 2011

The Imaginary Constitution and Last Night's Republican Presidential Debate

In 2003 Ron Paul posted a short piece on line charging the federal courts with enforcing an “imaginary constitution.”   An imaginary constitution was very much in evidence during last night’s Republican Presidential Debate in New Hampshire, but the fictive foundational law in question was hardly the same one that Paul once accused “activist” federal judges of visiting on the nation.  Judge-made constitutional law said Paul in 2003, shortly after publication of the Lawrence v. Texas decision, was illegitimate as soon as it departed from the constitutional text and original intent of the founders.   Not only was the constitutionalism behind liberal judicial activism illegitimate in Paul’s eyes, but worse still it was unsavory, in that it lead to results considered distasteful by libertarians and social conservatives.  The obvious and overdue remedy said Paul nearly a decade ago was popular reconsideration of lifetime tenure for federal judges.   He did not stop to mention that tenure upon good behavior for federal judges is expressly and unambiguously guaranteed in Article III Section 1 of the Constitution, and he gave no indication that he had the amending process as opposed to legislation in mind as a prescribed solution to the ills he diagnosed.   Textualism and original intent one must suppose have their limits even for so principled a strict constructionist as Paul, and those limits are discoverable at the boundaries between political outcomes social conservatives find desirable and those they find abhorrent.   But perhaps it is uncharitable for me to suggest hypocrisy. It may well be that Paul has simply never read the Constitution (i.e. the written one as opposed to those imagined into being by dreamers of various stripes).  In any case, whether the cause was failure to abide by principle, ignorance, or an active capacity to fantasize, constitutional imagination figured everywhere in last night’s debate.   Consider the following short and in-exhaustive typology of constitutional orthodoxies proffered by the candidates last night at St. Anselm that depart markedly from the constitutional text ratified by selective groups of long since dead people inhabiting some regions of the current United States in 1787-89, 1789-91, and 1865-68.  I have grouped my observations into three classes, which I call text, tradition, and covenant.   Each of them will form the topic of a Blawg entry.  This entry deals with Text, specifically the Citizenship Clause and the Test Clause.

Former Minnesota Governor Tim Pawlenty lambasted Congress and the activist federal judiciary for recognizing birth-right citizenship for children of illegal immigrants, and touted his record of appointing conservative judges in Minnesota as proof that he was committed to ensuring the federal judiciary would not in future be staffed with liberals unwilling to take the Constitution seriously.  Given the enormous amount of attention directed at nascent movement to amend the Constitution to purge the Citizenship Clause of the Fourteenth Amendment, Pawlenty’s belief that birth-right citizenship is a judicial creation is hard to fathom.   Section 1 clause 1 of 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.”  There are those who argue that the children of non-citizens are not subject to the jurisdiction of the United States and therefore fall outside the Citizenship Clause, but the more natural reading is surely that all persons in the United States except those who enjoy diplomatic immunity are subject to the jurisdiction of the United States, and that their children are therefore entitled to birth right citizenship.  After all, nobody could seriously argue that a person lacking diplomatic immunity who was detained in the United States for a crime allegedly committed in the United States was not subject to the jurisdiction of the United States because his parents were foreigners.  To be sure, Pawlenty may not be out of the mainstream of Republican Party thinking on the question of birth-right citizenship, as the Birth Right Citizenship Act of 2011, currently in committee in the House, purports to eliminate birth-right citizenship for children both of whose parents are illegally in the country, constitutional text notwithstanding.  Whether it would amount to activism or plain meaning textualism for the judiciary to hold this Bill unconstitutional under the Citizenship Clause should it ever become law probably depends more on the intellectual honesty of the observer than nice semantic questions.   One can’t but wonder whether constitutional change as inelegant as the Eleventh Amendment might not offer a slightly (and only slightly) less disingenuous way out for those who wish to deport the children of illegal immigrants and still feign fidelity to the Constitution:  Nothing in the Constitution (such as perhaps the Birth Right Citizenship Clause) shall be construed to confer birth right citizenship on the children of illegal immigrants, or other classes transient legislative majorities may find objectionable, and hence ineligible for constitutional protections cast in otherwise universal terms.

Godfather Pizza magnate Herman Cain, who held out his chief qualification for presidential office as complete lack of political experience, likewise favored using a rubric of cultural purity to establish fitness for civic participation. Where Pawlenty failed to account for the Citizenship Clause of the Fourteenth Amendment in assessing the eligibility of native-born children for continued residence in the United States, Cain chose to consider fitness for political appointment in blissful ignorance of the Test Clause of Article VI, which commands that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  When moderator John King asked Cain to clarify recent remarks suggesting he would never appoint a Muslim to a cabinet position, neither Cain nor any other candidate on the stage gave any evidence of familiarity with or loyalty to the Test Clause.  Cain appeared to retreat somewhat from the ironclad rule he had earlier described, implying that in some instances it might be possible to survive the additional tier of vetting appropriate when nomination of a Muslim was under consideration.   The two-tiered process for Muslims and no others would be very difficult to reconcile to constitutional Equal Protection principles, a serious constitutional concern that equally escaped all the candidates’ attention.  Then again, for federal as opposed to state action outside the area of appointment to office, it is generally possible for a principled textualist to make a case that Equal Protection is irrelevant, which comes close to what Robert Bork did forty years ago in arguing that Brown v. Board of Education was rightly decided, but Bolling v. Sharpe (requiring desegregation of public schools in Washington D.C.) was not, since the Equal Protection Clause does not by its own terms target the federal government.   The Test Clause however applies squarely to federal appointment, so from a purely textual basis, religion-based exclusion from federal office is on even shakier ground than race-based discrimination in hiring by federal actors.

Last night’s debate was fascinating and engaging, and though constitutional text was celebrated with much fanfare, the particular positions developed by the various candidates discussed above did not evince on an individual or collective level a rock solid commitment to knowing and enforcing constitutional text.  Entries on the role of constitutional tradition and constitutional covenant in yesterday’s debate will follow shortly.

Posted by Bill Merkel on June 14, 2011 at 03:23 PM in Constitutional thoughts, Culture, Current Affairs, Immigration, Law and Politics | Permalink | Comments (12) | TrackBack

Thursday, April 14, 2011

Errors of Law in the U.S. Citizenship Test


You know that civics test that immigrants have to pass before they can become American citizens? Well, I looked it over, and guess what? It contains errors of law. Yes, that's right, the U.S. citizenship test, designed to prevent civic ignorance, betrays significant legal misapprehensions on the part of its drafters. 

Prospective citizens are given the list of all the possible questions they might be asked, along with the answers, for use in studying. You can check them out yourself here: [pdf]. Out of the 100 questions, candidates are asked 10 at random, and must get six correct to pass. I found three bullocked question/answers. That's nearly enough to flunk a person just based on actually correct answers. That's dispiriting.

[Q.]31. If both the President and the Vice President can no longer serve, who becomes President?

[A.]▪ the Speaker of the House

That's just wrong. It is not the case that the Speaker "becomes" President.

As provided by 3 U.S.C. § 19, "the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." (emphasis mine). The office is later referred to in that statute as "Acting President." The USCIS could fix this question by changing "becomes" to "assumes the duties of".
[Q.]51. What are two rights of everyone living in the United States?
[A.]▪ freedom of expression ▪ freedom of speech ▪ freedom of assembly ▪ freedom to petition the government ▪ freedom of worship ▪ the right to bear arms

It's accurate to say that prisoners, insane persons, and infants have freedom of worship and rights of free expression. But children and prisoners are among the many people who have no right to bear arms. This question/answer is not easily fixed. You could change "everyone" to "many people," but part of the exercise of the civics test is to celebrate America's civic virtues, and using "many people" would make the U.S. seem considerably less, um, virtuous. Nonetheless, it would be better to be accurate. Probably the better fix is to ask candidates to "Name two rights guaranteed by the Constitution." That would sidestep the eligibility question. But that brings up the second problem: There are a lot of additional correct answers – important ones – that are left out of the USCIS's list of correct responses. To take two, the right to travel and the right to procedural due process are, to my way of thinking, much more significant than the right to bear arms, and pretty much everyone would have to agree they are historically more important considering the U.S. Supreme Court's very recent recognition of the individual right to bear arms. At any rate, I don't see the harm in setting out a more inclusive list of constitutional rights – after all, people only need to remember two of them. And listing more rights serves to better showcase American civics at any rate.

[Q.]56. When is the last day you can send in federal income tax forms?*
[A.]▪ April 15

This is just all kinds of wrong. It would be accurate to say that April 15th is the "regular deadline," but it is not accurate to say it is "the last day." The IRS states: "By law, filing and payment deadlines that fall on a Saturday, Sunday or legal holiday are timely satisfied if met on the next business day." In fact, this year, because of Emancipation Day observed in D.C. on Friday, April 15, the deadline for everyone is pushed out to at least April 18th. Then, individuals residing in Massachusetts have their last day to file pushed out to the 19th because of Patriots Day, observed on April 18th this year. It turns you usually get an extra day in Massachusetts. This always seemed like an equal protection problem to me, but at any rate, it still makes the USCIS's answer wrong. Among the other exceptions, there's also extra time for people serving in the military overseas. Some of those are non-citizens who are taking advantage of a fast-track to citizenship through military service, so it's not a trivial point.

If these questions are worth asking, then it's worth the USCIS's attention to get the answers right.

Posted by Eric E. Johnson on April 14, 2011 at 10:28 AM in Constitutional thoughts, Immigration | Permalink | Comments (4) | TrackBack

Monday, March 28, 2011

DOMA: Enforcing an Unconstitutional Law

Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. I am not alone in this view, with President Obama, Judge Joseph Tauro (D. Mass.) and many others on the left and right in my camp. But, even after announcing that the Department of Justice will no longer defend DOMA Section 3 because such laws fail heightened scrutiny, President Obama has rightly promised to continue enforcing DOMA Section 3 until it is either finally overturned by the Supreme Court or repealed in Congress. Today, I would like to consider what "enforcement" means.

DOMA Section 3 prevents the federal government from recognizing any marriage that is not between one man and one woman. It makes thousands of legally married same-sex couples strangers to more than 1000 federal rights that accompany opposite-sex marriages and injects the federal government into an area of family law traditionally and exclusively given to the States. Among other things, it denies benefits to same-sex spouses, prevents federal employees from putting their legally married same-sex partners on their health insurance and tears apart legally married same-sex binational couples. Recently, President Obama stated that he believes DOMA to be unconstitutional under heightened scrutiny and, therefore, refused to continue defending the statute in various challenges snaking their way through the federal courts. He did say that his Executive responsibilities required that his Administration continue enforcing the law.

What it means to "enforce" DOMA came into view this weekend. In a striking 180-degree turnaround, two U.S. Bureau of Citizenship and Immigration Services (USCIS) districts — Washington, D.C. and Baltimore — stated that departation cases in their districts involving married gay and lesbian couples would be put on hold. I was honored to be called by various media outlets to justify this policy change. How is this not an example of the Obama Administration declining to enforceDOMA, they asked?


The USCIS is part of the Executive Branch and it is unlikely that only two of the country's CIS districts would make this policy shift on their own, suggesting that they are likely operating under instructions from somewhere up the Executive change. Regardless, the decision to postpone deportations of legally married same-sex binational couples is undoubtedly in response to President Obama's decision on the constitutionality of DOMA.

But, if DOMA is what is standing in the way of a married same-sex foreign national being allowed to remain in this country like his or her married opposite-sex foreign national comrades, is not the indefinite postponing of deportation proceedings tantamount to, at a minimum, an indefinite postponement of the Executive's responsibility to enforce duly enacted laws?


Let us be clear about the policy. The USCIS offices statedthat alien relative petitions and green card applications filed by married same-sex couples will not be denied out of hand simple because of DOMA. Instead, the applications would be held in abeyance to allow for continued challenges to DOMA. As a leading gay immigration attorney has explained, "The significance of the 'abeyance' policy is two-fold: first, it means that petitions and applications that normally would have been denied because of DOMA, will now remain in 'pending' status, and second, this status will give protection and benefits to the applicant for an indefinite period."

In other words, the President's decision that DOMA is unconstitutional means that DOMA is no longer an a priori barrier to temporary reprieves from deportation. The CIS has not decided to stop enforcing DOMA; rather, it has decided not to tear apart loving, committed and legally married couples while DOMA's constitutionality is, at best, up in the air. DOMA still denies these couples thousands of federal benefits, but the CIShas come up with unique and creative strategies to at least keep married couples together while questions are answered. DOMA itself would not force deportation in these cases. The denial of an alien relative visa, pursuant to DOMA's discriminatory policy, would. All CIS has done is delay a final decision on alien relative petitions given the current challenges to DOMA. It sounds like an adequate compromise given the odious straight jacket DOMA forces upon us.

Posted by Ari Ezra Waldman on March 28, 2011 at 02:54 PM in Constitutional thoughts, Current Affairs, Gender, Immigration, Law and Politics | Permalink | Comments (1) | TrackBack

Tuesday, February 15, 2011

Reply to Jack Chin

Professor Chin gets the conversation started, but there are several places where I think he begs the question under considersation.  We're trying to ascertain what the meaning of the 14th Amendment was to those who drafted and ratified it, and in particular whether it was intended to confer automatic citizenship on the children of those who are in this country illegally.

So, our first point of disagreement.  Prof. Chin claims that the 14th Amendment "essentially codified Calvin's Case" and the principal of jus soli it espoused--once born on the king's soil, always the king's subject.   He cites Wong Kim Ark as support for this proposition, claiming that the Supreme Court in that case "held that the language excluded only 'the two classes of cases,--children of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which . . . by the law of England and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country.' "  But note carefully the location of his quotation marks--"only" is not within them, and it does not appear in the Wong Kim Ark decision.  Rather, Wong Kim Ark notes that "subject to the jurisdiction" excludes those classes, but the issue for us is whether it also excludes those who are merely subject to the partial, territorial jurisdiction of the United States by virtue of their mere presence within its borders, but not subject to the "full and complete" jurisdiction specifically referenced by the authors of the 14th Amendment.   Wong Kim Ark suggests that it does, but that is dicta, because that question was not before the Court.  Wong Kim Ark's parents were lawful, permanent residents, not unlawful or temporary ones.

Which leads me to my second main point of disagreement.  Professor Chin says "there's a statute" that codified the holding of Wong Kim Ark, and that "the drafting history . . . makes clear that the statute embraces the holding of Wong Kim Ark."  Not quite.  The drafting history actually makes clear that it embraces both the holding of Wong Kim Ark and the contradictory holding of Elk v. Wilkins.  See page 8 (Prof. Chin cited only to page 7).  Elk clearly rejected jus soli as the meaning of the 14th Amendment, so the only way to reconcile these two cases, and the drafting history supporting the current statute (which, after all, merely repeats the language of the 14th Amendment) is to read Wong Kim Ark as limited to its actual holding, namely, that the children of lawful, permanent residents are also entitled to automatic citizenship.   I do agree, though, that if Congress wanted to grant automatic citizenship beyond that, it certainly could, pursuant to its Article I power over naturalization.  By embracing both Wong Kim Ark and Elk v. Wilkins in the legislative history to the current naturalization statute, it has not yet done so.

I'm sure I'll have more on the collateral points, but let me close with a third area of major disagreement.  Prof. Chin notes that the old common law rule was jus soli.  Indeed, it was.  And there are certainly antebellum-era cases continuing to apply the old common law rule (though none by the Supreme Court itself, to my knowledge).  In 1776, we adopted the common law to the extent not inconsistent with the principles of the Declaration of Independence.  But what is the Declaration if not a full repudiation of the jus soli doctrine?  By it, our Founders claimed a natural right to repudiate their former allegiances and create a new one, establishing a new government based on the consent of the governed.  That was not permissible under jus soli.  Hence, "consent" rather than perpetual feudal allegiance is the model for citizenship we adopted in 1776, though it took some time for the old common law courts and lawyers to come to the full appreciation of what that meant.  While not a model of clarity, the better read of the debates over the 14th Amendment is that it was intended to confirm our consent-based model for citizenship.  The nearly contemporanous debates over the Expatriation Act confirm this with even greater clarity.  The Supreme Court unanimously confirmed this view, albeit in dicta, in The Slaughterhouse Cases, the first case to reach the Supreme Court interpreting the 14th Amendment, noting that "[t]he phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."  (emphasis added).  It accepted that dicta as holding in Elk v. Wilkins.  The major treatise writer of the day, Thomas Cooley, asserted that meaning of the 14th Amendment as well.  Even after Wong Kim Ark, Congress continued to subscribed to its tenants--the 1924 naturalization act for Native Americans would not have been necessary if birth on U.S. soil was alone sufficient.

So Congress is free to grant citizenship to anyone born on U.S. soil if it wants to, even to terrorists like Anwar al-Awlaki, who was born while his Yemeni parents were temporarily in the United States on a student visa.  I just don't agree that the 14th Amendment foolishly requires such a result; rather, that would be an exercise of Congress's power over naturalization.  As Senator Jacob Howard, the author of the Citizenship Clause, and Senator Lyman Trumbull, a key drafter of the 14th Amendment, described, "subject to the jurisdiction" as used in the 14th Amendment requires "a full and complete jurisdiction," "not owing allegiance to anybody else."  Those who are in this country illegally are not here by consent, and they continue to owe allegiance to their home countries.  They have subjected themselves to our laws, to be sure, and hence to our partial and territorial jurisdiction, but not to the broader, allegiance-owing jurisdiction intended by the 14th Amendment and mandated by the "consent" principle of the Declaration of Independence.  We welcome as fellow citizens all who come to this country by mutual consent.  We just ought not be in the habit of handing out citizenship like lottery tickets to those who violate our laws, ignore our lack of consent, and enter this country illegally.  As I said, I don't think the proper understanding of the 14th Amendment requires such a result.

Posted by John Eastman on February 15, 2011 at 07:04 PM in Immigration | Permalink | Comments (34) | TrackBack

Monday, February 14, 2011

Welcome to the Birthright Citizenship Roundtable

Thanks to Matt and Dan, Prawfs will be the home to a discussion of the merits of two new proposals to change birthright citizenship law in the United States.  These proposals are designed to deny citizenship to some or all children of undocumented non-citizens born in the United States who otherwise would be U.S. citizens by birth.  We have an all-star group of panelists, with people on various sides of the issue.

The background legal principles are these.  Although American law has had Section 1 of the 14th Amendment only since 1868, we had citizens before that, under common law.   The traditional principle of Anglo-American citizenship comes from Calvin's Case,  77 ER 377 (1608),  which held held that birth in the lands of a sovereign made a person a natural born subject of that sovereign.  In 1868,  Congress and the States essentially codified Calvin's Case through Section 1, which Provides: "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."   

The critical language for our purposes is "subject to the jurisdiction thereof."  In United States v. Wong Kim Ark, 169 U.S. 649, 682 (1898), the Court said that the language included racial Chinese born in the United States notwithstanding that racial Chinese were prohibited from immigrating and becoming naturalized citizens.  The Court--no great friend of Chinese immigrants--held that the language excluded only "the two classes of cases,--children of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,--both of which . . . by the law of England and by our own law, . . . had been recognized exceptions to the fundamental rule of citizenship by birth within the country."  That is, "subject to the jurisdiction thereof" means nothing more than "subject to the laws of the United States," which all non-citizens, including the undocumented, emphatically are. 

But not all agree.  A number of people think that the Fuller/Harlan dissent in Wong Kim Ark had the better of the argument; if a child owes political allegiance to another country, he or she is not completely subject to the jurisdiction of the United States.  Put another way, these theorists believe that the citizenship principle of jus sanguinis--law of blood--is better than the citizenship principle of jus soli--law of soil.  Citizenship, they say, should follow the parent rather than the place of birth. 

Below are the proposals to change the current rules on citizenship, and four reasons why they are legally problematic.

The first proposal is designed to generate a case testing the validity of Wong Kim Ark.  The vehicle is an interstate compact which would create two types of birth certificates, one for people born in a state "subject to the jurisdiction of the United States" and one for others.  Since this would immediately generate a lawsuit, proponents hope this will lead the Supreme Court to reconsider Wong Kim Ark.


The second proposal is a constitutional amendment.  Senators David Vitter and Rand Paul have introduced S.J. Res. 2 (112th Cong., 1st Sess.), which would repeal Section 1 of the 14th Amendment by implication by adding the following to the Constitution:

    A person born in the United States shall not be a citizen of the United States unless-(1) one parent of the person is a citizen of the United States; (2) one parent of the person is an alien lawfully admitted for permanent residence in the United States who resides in the United States; (3) one parent of the person is an alien performing active service in the Armed Forces of the United States; or (4) the person is naturalized in accordance with the laws of the United States.

The other participants in the roundtable, surely, will have much to say about the  proposed constitutional amendment, but I will focus on the proposed state compact. The problems with this statute are too many to offer a systematic critique, but I offer four thoughts.

1. There's a Statute.  The holding of Wong Kim Ark was made statute law as part of the Nationality Act of 1940.  This Act, the fruit of a decade of study by the Departments of State, Justice and Labor, was the first comprehensive U.S. citizenship law.  (The earlier patchy efforts left gaps resulting in,  for example, John McCain not being a citizen by birth.)  8 U.S.C. 1401(a) makes a citizen "a person born in the United States, and subject to the jurisdiction thereof".  The drafting history (e.g., here at 7) makes clear that the statute embraces the holding of Wong Kim Ark.  Accordingly, the Court's interpretation seems to be part of the U.S. Code.  E.g., Cottage Sav. Ass'n v. C.I.R., 499 U.S. 554, 561-62 (1991).  No one has argued that Congress lacks the power under the Naturalization Clause to  grant citizenship to all born in the United States other than a child of a diplomat or soldier in hostile occupation.  Therefore, there is a strong argument that even if a plausible challenge to the logic of Wong Kim Ark could be mounted, a necessary first step would be to persuade Congress to repeal Section 1401(a)

2. Citizenship Is Not  a State Matter.  One of the most interesting things about the Citizenship Clause is that it regulates state as well as national citizenship.  This is a stark reminder of the judgment of Congress and the majority of the States that citizenship, state and federal, should be protected from the prejudices of particular States--States cannot be trusted to make citizenship determinations even about state citizenship. The historical reason, of course, is that former Confederate States denied citizenship to formerly enslaved persons after the Civil War.  (And even earlier, state-by-state standards proved unworkable under the Articles of Confederation; this is why the Constitution provides for "an uniform Rule of Naturalization.")  The clear language of the Amendment (in addition to the fact that Congress has occupied the field through the Nationality Act of 1940 as codified and amended in the Immigration and Nationality Act) mean that state citizenship legislation is preempted--to the extent that it is covered by the 14th Amendment, citizenship is now an exclusively federal matter as much as making treaties or declaring war. 

 3. The 14th Amendment is a Jus Soli Provision.  Reasonable people could argue that citizenship should be transmitted to children based on the citizenship of the parents (jus sanguinis) rather than based on the place of birth (jus soli).  But there is no serious argument that the 14th Amendment has done so.  The critical factor, according to the text, is birth or naturalization in the U.S., a territorial, jus soli, concept.  The status of the parents is irrelevant; the Citizenship Clause does not ask whether the parents are subject to the jurisdictionof the United States, it asks whether the person born in the United States is subject to U.S. jurisdiction.

4. Why the Eagerness to Let Other Countries Set U.S. Citizenship Policy?  Another oddity of the dissent in Wong Kim Ark and of the Compact is the controlling effect they give to foreign law.  The theory is that children whose parents have citizenship in other countries are not fully subject to U.S. jurisdiction. Preliminarily, if this is right, it raises a host of problems for dual citizen parents; if a parent's foreign tie makes a U.S.-born infant not completely subject to U.S. jurisdiction, then the child of two U.S. citizens born in the United States, logically, is not a citizen if one parent is a dual citizen.  Under the Compact, it appears that if two U.S. citizen parents happened to be Israeli or Canadian dual citizens, their child born in the United States would not be a U.S. citizen, because they do not have "at least one parent who owes no allegeance to a foreign sovereignty." As the Court noted in Wong Kim Ark, if U.S. the law made citizenship of the parents the critical issue for children born in the United States, the outcome "would be to deny citizenship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States." 169 U.S. at 694.  

More fundamentally, it is not clear why the United States should give effect to the citizenship law of foreign countries as part of U.S. citizenship policy. If North Korean law provided that foreign-born descendants of North Koreans are citizens unto the 1,000th generation, but South Korean law provided that descendants of South Koreans born abroad may only gain citizenship by naturalization (or vice-versa), why should those foreign laws dictate the result under U.S. citizenship law? We make citizens (or not) for reasons of our own, not to please or accomodate other nations.  Foriegn law is not now relevant to U.S. citizenship law; I do not understand why it should be made relevant. 

There is much more to be said on this subject, and I look forward to reading what my fellow bloggers think.


Posted by Marc Miller on February 14, 2011 at 04:03 AM in Immigration | Permalink | Comments (14) | TrackBack

Thursday, February 10, 2011

Roundtable on Birthright Citizenship

PrawfsBlawg is honored to host an extended roundtable on the issue of birthright citizenship.  Our roundtable guests will discuss the constitutional basis for citizenship, as well as state and federal proposals to modify or eliminate birth in the U.S. as an entitlement to citizenship.  The conversations will stretch from February 14 until March 6, so there will be plenty of time for you to participate.   We look forward to welcoming the following commentators:

Jack Chin, University of Arizona James E. Rogers College of Law

Evelyn Haydee Cruz, Arizona State University Sandra Day O'Connor School of Law

John C. Eastman, Chapman University School of Law

Garrett Epps, University of Baltimore School of Law

Paul Finkelman, University of Albany School of Law

Andy Hessick, Arizona State University Sandra Day O'Connor School of Law

Ediberto Roman, Florida International University College of Law

Peter Schuck, Yale Law School

Peter Spiro, Temple University Beasley School of Law

Margaret Stock, U.S. Military Academy, West Point

Rose Cuison Villazor, Hofstra University School of Law

The organizer and host for this extended discussion is Jack Chin, who will start things off for us next week.  Hope you will join in the conversation.

Posted by Matt Bodie on February 10, 2011 at 11:39 PM in Immigration | Permalink | Comments (0) | TrackBack