Original Meaning of the Disqualification Clause

Steven Portnoy at ABC:

In 2024, the originalists on the Supreme Court will likely seek to determine whether the ratifiers could have had it in mind 158 years ago that Sec. 3 might not only be applied to the "late insurrection," as the House-passed version originally had it, but also to any other rebellion that might later take place.

But originalists might take note of what Sen. Peter Van Winkle of West Virginia said as he sought to have the threshold for congressional amnesty in Howard's version lowered to a simple majority, rather than two-thirds.

"This is to go into our Constitution and to stand to govern future insurrection as well as the present; and I should like to have that point definitely understood," Van Winkle said at the time.

It's also worth noting that there was just a single reference in the Senate debate to the fact that the president and vice president were not explicitly mentioned in Howard's draft as "officer(s) of the United States," the way members of Congress and state officials had been itemized in the text. Would the disqualification clause of the amendment not cover the top posts in the executive branch?

"Why did you omit to exclude them?" asked Maryland Democratic Sen. Reverdy Johnson.

Maine's Lot Morrill jumped in to clarify.

"Let me call the Senator's attention to the words 'or hold any office, civil or military, under the United States,'" Morrill said, ending the discussion on that point.

J6 Was an Insurrection

 The Colorado Supreme Court ruled that, under section 3 of the 14th Amendment, Trump is ineligible to be on the Colorado presidential primary ballot.  

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes ofSection Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. 100 The required force or threat of force need not involve bloodshed, nor must the dimensions of the effort be so substantial as to ensure probable success. In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894). Moreover, although those involved must act in a concerted way, they need not be highly organized at the insurrection’s inception. See Home Ins. Co. of N.Y. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (“[A]t its inception an insurrection may be a pretty loosely organized affair. . . . It may start as a sudden surprise attack upon the civil authorities of a community with incidental destruction of property by fire or pillage, even before the military forces of the constituted government have been alerted and mobilized into action to suppress the insurrection.”). 

¶185 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection. 

¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence 101 in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—thatthe mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156–57. The fact that actual and threatened force was usedthat day cannot reasonably be denied. 

¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153. 102 

¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179–80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172–73. ¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable 103 definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection. 

The Presidential Oath and Supporting the Constitution

Asha Rangappa:

You often think that you have heard it all from Trump, or his lawyers, and then you realize you actually haven’t. A lawsuit filed in Colorado challenging Trump’s eligibility to be on the state’s presidential ballot under the Fourteenth Amendment goes to trial on October 30. The case centers around whether the events of January 6 constitute an “insurrection” for purposes of Section 3 of the amendment, which states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

But Trump’s lawyers are arguing that Section 3 doesn’t apply to Trump, because the presidential oath of office only required him to “protect, preserve, and defend” the Constitution, not “support” it. To quote the movie Dodgeball, it’s a bold strategy, Donnie, let’s see how this plays out.

The argument that Section 3 doesn’t apply to the president has been made before, but typically it’s focused on whether the President is an “officer” for purposes of the amendment, not the wording of the presidential oath. The lawyers who argue that he isn’t an “officer” are in the minority; most constitutional scholars agree that the President is covered by the amendment. As far as the semantic argument, it seems like an uphill battle to me to argue that “protecting,” “preserving,” and “defending” are not forms of “support.” It would be also be absurd to suggest that the President could not support the Constitution and not be in violation of his oath (or, conversely, that he has license to not support it…what?).

Section Three

  Adam Liptak at NYT:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office. The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

The professors — William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas — studied the question for more than a year and detailed their findings in a long article to be published next year in The University of Pennsylvania Law Review.

“When we started out, neither of us was sure what the answer was,” Professor Baude said. “People were talking about this provision of the Constitution. We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it, the more we realized that we had something to add.”

He summarized the article’s conclusion: “Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.”

 The Sweep and Force of Section Three

University of Pennsylvania Law Review, Vol. 172, 2024
William Baude
University of Chicago - Law School
Michael Stokes Paulsen
University of St. Thomas School of Law

Date Written: August 9, 2023

Abstract

Section Three of the Fourteenth Amendment forbids holding office by former office holders who then participate in insurrection or rebellion. Because of a range of misperceptions and mistaken assumptions, Section Three’s full legal consequences have not been appreciated or enforced. This article corrects those mistakes by setting forth the full sweep and force of Section Three.

First, Section Three remains an enforceable part of the Constitution, not limited to the Civil War, and not effectively repealed by nineteenth century amnesty legislation. Second, Section Three is self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress. It can and should be enforced by every official, state or federal, who judges qualifications. Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment. Fourth, Section Three covers a broad range of conduct against the authority of the constitutional order, including many instances of indirect participation or support as “aid or comfort.” It covers a broad range of former offices, including the Presidency. And in particular, it disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.

Keywords: Constitution, Fourteenth Amendment, Section Three, Insurrection, Rebellion

Suggested Citation: Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023). University of Pennsylvania Law Review, Vol. 172, 2024, Available at SSRN: https://ssrn.com/abstract=

Disqualifying an Insurrectionist

 From CREW:

A New Mexico judge ordered Otero County Commissioner Couy Griffin be removed from office, effective immediately, ruling that the attack on the Capitol was an insurrection and that Griffin’s participation in it disqualified him under Section 3 of the 14th Amendment. This decision marks the first time since 1869 that a court has disqualified a public official under Section 3, and the first time that any court has ruled the events of January 6, 2021 an insurrection.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” as an “officer of any State” and then “engaged in insurrection or rebellion” or gave “aid or comfort” to insurrectionists. Griffin, as an Otero County Commissioner since January 2019, took an oath to “support and uphold the Constitution and laws of the State of New Mexico, and the Constitution of the United States.”

“This is a historic win for accountability for the January 6th insurrection and the efforts to disrupt the peaceful transfer of power in the United States. Protecting American democracy means ensuring those who violate their oaths to the Constitution are held responsible,” said CREW President Noah Bookbinder. “This decision makes clear that any current or former public officials who took an oath to defend the U.S. Constitution and then participated in the January 6th insurrection can and will be removed and barred from government service for their actions.”

Under New Mexico law, any private citizen of the state may file a lawsuit to remove a disqualified county official from office. A group of New Mexico residents were represented in this case by Citizens for Responsibility and Ethics in Washington and the New Mexico-based law firms of Freedman Boyd Hollander and Goldberg P.A, Dodd Law Office, LLC, and the Law Office of Amber Fayerberg, LLC, as well as by Cohen Milstein Sellers & Toll PLLC.

“Judge Mathew’s decision is fully supported by the facts and the law and justice achieves a needed measure of accountability,” said Freedman Boyd Hollander and Goldberg P.A Partner Joe Goldberg.

“The Court’s findings that Mr. Griffin engaged in repeated efforts to mobilize a mob and incite them to violence on January 6, 2021 amply support the Court’s conclusion that he is unqualified under the Fourteenth Amendment to hold public office,” said Daniel Small of Cohen Milstein Sellers & Toll PLLC.

An eyewitness to Griffin’s behavior testified that Griffin also took on a leadership position within the mob at the Capitol on January 6th. Videos of Griffin’s speeches en route to Washington, DC for the “Stop the Steal“ rally showed Griffin’s willingness to stop, by any means necessary, a Biden presidency. In the days after the attack, Griffin continued to defend the insurrection, boasted about his involvement, and suggested a possible repeat of it in the future. Following a federal indictment for his behavior, he was convicted of breaching and occupying restricted Capitol grounds.

“January 6, 2021 was a dark day in our history. The court’s ruling today is a historic moment for our country. Mr. Griffin’s removal and bar from holding office again is a step towards obtaining justice and restoring the rule of law,” said Dodd Law Office, LLC President Christopher Dodd.

“The Court’s decision to remove and bar Mr. Griffin from public office represents a crucial step toward restoring the rule of law in our country and protecting our democracy from future attack,” said the Law Office of Amber Fayerberg, LLC Founder Amber Fayerberg.
Click here to read the court’s decision.

Secession, Rebellion, and the Disqualification Clause

 Section 3 of the  14th Amendment:

No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 Drew Knight at KHOU-TV:

On Tuesday, Rep. Kyle Biedermann (R-Fredericksburg) said that he is committed to authoring legislation in the 2021 legislative session that will give Texans a vote to allow the state to secede from the U.S.

"The federal government is out of control and does not represent the values of Texans," he wrote on Facebook. "That is why I am committing to file legislation this session that will allow a referendum to give Texans a vote for the State of Texas to reassert its status as an independent nation."

Oyez describes Texas v. White:

In a 5-to-3 decision, the Court held that Texas did indeed have the right to bring suit. The Court held that Texas had remained a state, despite joining the Confederate States of America and its being under military rule at the time of the decision. The Court further held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature--even if ratified by a majority of Texans--were "absolutely null." Even during the period of rebellion, however, the Court found that Texas continued to be a state.

 

Citizenship and American Samoa

Many posts have discussed the legal status of citizenship.

Michael Levenson at NYT:

Since 1900, American Samoans have pledged allegiance to the United States and followed its laws. Yet they have not been automatically granted citizenship at birth, which left many unable to vote and ineligible for certain government jobs.

On Thursday, a federal judge ruled that American Samoans should be granted United States citizenship and ordered the government to issue them passports reflecting that status. The judge, Clark Waddoups of United States District Court in Utah, cited the 14th Amendment, which guarantees citizenship to any child born in the United States.

The decision reignited a century-long debate about the citizenship status of people born in the territories of the United States. But it is likely just one shot in a continuing legal battle. On Friday, Judge Waddoups stayed his ruling until the case is resolved on appeal.

Practically speaking, that means American Samoans will not be able to register to vote or be granted passports reflecting their status as citizens until a higher court weighs in, said Neil C. Weare, the president and founder of the Equally American Legal Defense and Education Fund, which filed the lawsuit for American Samoans seeking citizenship.

 American Samoa, about 2,500 miles southwest of Hawaii in the South Pacific, is the only territory of the United States whose residents are not automatically granted citizenship at birth. The other territories, including Puerto Rico, Guam and the U.S. Virgin Islands, have been granted citizenship by acts of Congress. But American Samoans are classified as “noncitizen nationals” and their passports carry a disclaimer: “The bearer is a United States national and not a United States citizen.”

Redistricting Does Not Have to Rest on Eligible Voters

Adam Liptak reports at The New York Times:

The Supreme Court on Monday unanimously ruled that states may count all residents, whether or not they are eligible to vote, in drawing election districts. The decision was a major statement on the meaning of a fundamental principle of the American political system, that of “one person one vote.”

As a practical matter, the ruling mostly helped Democrats.

Until this decision, the court had never resolved whether voting districts should contain the same number of people, or the same number of eligible voters. Counting all people amplifies the voting power of places that have large numbers of residents who cannot vote legally — including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

Had the justices required that only eligible voters could be counted, the ruling would have shifted political power from cities to rural areas, a move that would have benefited Republicans.

The court did not decide whether other ways of counting were permissible. “We need not and do not resolve,” JusticeRuth Bader Ginsburg wrote for six justices, whether “states may draw districts to equalize voter-eligible population rather than total population.”
The case, Evenwel v. Abbott, No. 14-940, was a challenge to voting districts for the Texas Senate that was brought by two voters, Sue Evenwel and Edward Pfenninger. They were represented by the Project on Fair Representation, a small conservative advocacy group that successfully mounted an earlier challenge to the Voting Rights Act.

Births to Undocumented Parents

Pew reports:

About 295,000 babies were born to unauthorized-immigrant parents in 2013, making up 8% of the 3.9 million U.S. births that year, according to a new, preliminary Pew Research Center estimate based on the latest available federal government data. This was a decline from a peak of 370,000 in 2007. 

 

Births to unauthorized-immigrant parents rose sharply from 1980 to the mid-2000s, but dipped since then, echoing overall population trends for unauthorized immigrants. In 2007, an estimated 9% of all U.S. babies were born to unauthorized-immigrant parents, meaning that at least one parent was an unauthorized immigrant.

The 14th Amendment to the U.S. Constitution, adopted in 1868, grants an automatic right of citizenship to anyone born in the United States. [with some exceptions] But in recent years, some politicians have called for repeal of birthright citizenship, including Republican presidential candidate Donald Trump, who says that so-called anchor babies are a magnet for illegal immigration.

A Pew Research survey in February 2011 found that a majority of Americans (57%)opposed changing the Constitution to end birthright citizenship, while 39% favored such a change. That same survey found that most Americans (87%) said they were aware of the constitutional guarantee of birthright citizenship.

Birthright Citizenship

The Citizenship Clause of the Fourteenth Amendment says: "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."

Trump wants to do away with birthright citizenship

At NRO, John Yoo writes:

Trump and his supporters (including some writers for National Review) may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

At AEI, Madeline Zavodny writes:

The main cost of birthright citizenship is the potential fiscal burden posed by the U.S.-born children of unauthorized immigrants. Unauthorized immigrants are ineligible for virtually all means-tested transfer programs, with the notable exception of the federal child tax credit if they file taxes. But their U.S.-born children are eligible for welfare benefits if their family meets the criteria. However, such children are believed to be less likely than other children to apply for benefits because their families fear that interacting with the government will lead to the parents’ deportation. Eliminating birthright citizenship for unauthorized immigrants’ children therefore may not save as much money as proponents might believe.

Eliminating birthright citizenship is also unlikely to have a large impact on the number of children born here to people who are not legally present in the U.S. The number of “birth tourists” – people who come to the U.S. for the main purpose of giving birth here – is believed to be only about 8,000 a year. The number of children born each year to unauthorized immigrants who live here is much larger, about 300,000 per year, but the evidence from Germany suggests that unauthorized immigrants might actually have more children here if birthright citizenship were eliminated.

Unauthorized immigrants don’t have children here because those children can receive welfare benefits or because they can sponsor their parents for a green card. (The latter can’t even happen until the child is 21 years old, so that would be some impressive patience.) They have children here because they want them to be Americans. The U.S.-born children of unauthorized immigrants symbolize their parents’ American dreams. They came for the opportunity to work hard and in return have a better life, for themselves and especially for their children.

Supreme Court on Same-Sex Marriage

From Justice Kennedy's majority opinion in Obergefell v. Hodges:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become
something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

From Chief Justice Roberts's dissent:

 Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same sex marriage. Ante, at 19. That disclaimer is hard to
square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n]
or stigmatiz[e]” same-sex couples. Ante, at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante, at 19. 

Chris Cillizza writes at The Washington Post:

What this ruling does then is take same-sex marriage off the table as a major talking point, debate issue or differentiator between the candidates during the coming Republican primary. Yes, Jindal, Mike Huckabee and Rick Santorum -- to name three -- will talk about this ruling as part of a broader indictment of the increasingly liberal culture. But for the likes of Bush, Marco Rubio and others, they will no longer have to walk a political minefield when responding. The I disagree but it's the law of the land line is difficult to argue against; it's the line most establishment Republican candidates now use when abortion is brought up as an issue in a Republican primary.

Coulter, Reagan, and Asian Pacific Americans

Mediaite reports that Ann Coulter attacked Nikki Haley:

Ann Coulter appeared with Kennedy on Fox Business Network tonight and said that there are a lot of people getting the history of that flag wrong, as well as ignoring the Democrats’ history with the Confederacy, the flag, and African-Americans.

At one point, she said, “I’m appalled by––though, I really like to like Nikki Haley since she is a Republican. On the other hand, she is an immigrant and does not understand America’s history.”

Kennedy asked, “Immigrants can’t understand history?” Coulter responded, “Well, she doesn’t!”

Governor Haley was born in Bamburg, South Carolina, which means that she is just as much a natural-born citizen as Ann Coulter.

On May 3, 1988, President Reagan made these remarks on signing the Asian/Pacific American Heritage Week Proclamation 

Our country draws special strength from our rich cultural heritage and the shared values that unite America. Asian-Pacific Americans represent the full breadth of the American experience. For some, their family roots reach deep into American history and the building of this nation. Even before the American Revolution, the first sailors from the Philippines were settled here. Other citizens have only recently come to our shores. They're among our newest Americans—who, like immigrants before them, have a unique appreciation for the freedom and opportunity this country offers.

Citizens of Asian and Pacific heritage have enriched America in irreplaceable ways, but at the same time each person's story is distinctly American, each is a reaffirmation of the kind of country we are and the values that make us strong and free. I think of Wendy Gramm, whose grandfather came from Korea as a contract laborer to cut sugarcane in Hawaii. Wendy's father went on to become vice president of the same sugar company that her grandfather had worked for in the fields. And last February, Wendy was confirmed by the Senate as Chairman of the Commodity Futures Trading Commission, and I can't help but note that one of the commodity futures she now oversees is cane sugar. [Laughter]
...
Americans of Asian and Pacific heritage are one of the most successful groups in this country. What they've achieved is a great reaffirmation of the American values of work, education, family, and community. They've made this country the land of opportunity. They've distinguished themselves in many fields, from science and medicine to agriculture and commerce. They've contributed to our public life through the arts and literature, and also in government. Asian-Pacific Americans are part of the rich tapestry of American life. It's a tribute to the unifying power of America that such a diverse group whose members often have different national heritages, religious faiths, and historical experiences all come together to celebrate this occasion and to reaffirm our common bond as citizens of the United States. Let me give special praise to the Asian Pacific American Heritage Council, whose help brings people together—or, whose work, I should say, helps bring people together, and makes this special week of celebration a reality.

And now it is my Irish-English— [laughter] —privilege to sign the proclamation.

The National Guard, Armed Forces, and Civil Disorder

Events in Ferguson raise the question of the role of the armed force in domestic unrest.  From Charles Doyle and Jennifer Elsea, "The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law," Congressional Research Service, August 16, 2012:

Section 333 of Title 10 permits the President to use the Armed Forces to suppress any “insurrection, domestic violence, unlawful combination, or conspiracy” if law enforcement is hindered within a state, and local law enforcement is unable to protect individuals, or if the unlawful action “obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” This section was enacted to implement the Fourteenth Amendment guarantee for equal protection. It does not require the request or even the permission of the governor of the affected state.

The provision lay dormant after the end of Reconstruction until 1957, when President Eisenhower ordered a battle group of the 101st Airborne Division into Little Rock 246 and federalized the entire Arkansas National Guard 247 in order to enforce a court order permitting nine black students to attend a previously white high school. The proclamation to disperse cited both Sections 332 and 333 of Title 10, U.S. Code.248 By federalizing the Arkansas Guard, the President effectively deprived the governor of forces that had several days previously been used to enforce the governor’s view of law and order.249

Presidents Kennedy and Johnson followed the Little Rock precedent to deal with resistance to court-ordered desegregation in a number of Southern states. In 1962, after the governor of Mississippi attempted to prevent black student James H. Meredith from registering at the University of Mississippi at Oxford, President Kennedy sought to enforce the court order  with federal marshals.250 When marshals met with resistance from state forces and later a  riotous mob, President Kennedy federalized the Mississippi National Guard and ordered active Army troops  already gathered in the area to take action.251 The President’s proclamation to disperse named the governor and other state officials as forming the unlawful assemblies obstructing the enforcement of the court order, citing as authority both Sections 332 and 333.252 President Kennedy followed a similar course of action to confront state resistance to court ordered desegregation in Alabama twice in 1963.253 President Johnson cited the same authority in 1965 to deploy troops, both regular Army and federalized National Guard, to Alabama to protect civil rights marchers as they made their way from Selma, AL, to Montgomery.254

• 246 PAUL SCHEIPS, THE ROLE OF FEDERAL MILITARY FORCES IN DOMESTIC DISORDERS, 1945-1992  (2005), at 40. 

• 247 Exec. Ord. No. 10,730, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

• 248 Proclamation No. 3204, 22 Fed. Reg. 7628 (Sept. 24, 1957).  

• 249 Robert W. Coakley, Federal Use of Militia and the National Guard in Civil Disturbances, in BAYONETS IN THE  STREETS, 17, 30 (Robin Higham, ed. 1989). The governor had ordered the National Guard to enforce segregation by  preventing students from entering any high school that had previously been used exclusively for students of another  race, in defiance of a federal court order. See SCHEIPS, supra footnote 246, at 34.  

• 250 See SCHEIPS, supra footnote 246, at 86-87.  

• 251 Id. at 87-93; Exec. Ord. No. 11053, 27 Fed. Reg. 9693 (Oct. 2, 1962).  

• 252 Proclamation No. 3497, 27 Fed. Reg. 9681 (Oct. 2, 1962).  

• 253 Proclamation 3542, 28 Fed. Reg. 5705 (June 12, 1963); Exec. Order No. 11,111, 28 Fed. Reg. 5709 (June 12, 1963); Proclamation 3554, 28 Fed. Reg. 9861 (Sept. 11, 1963); Exec. Order 11,118, 28 Fed. Reg. 9863 (Sept. 11, 1963).  

• 254 Proclamation No. 3645, 30 Fed. Reg. 3739 (Mar. 20, 1965); Exec. Ord. No. 11,207, 30 Fed. Reg. 3743. The governor was enjoined by court order from interfering with the march, and he refused to call out the Alabama National Guard to protect the marchers on the grounds that he did not want the state to foot the bill. See SCHEIPS, supra footnote 246, at 162-63. 

Citizenship and the Boston Bombing

Our chapter on citizenship discusses denaturalization, the process by which naturalized citizens may lose their status under certain limited circumstances.  At Slate, Patrick Weil writes:

If the Boston Marathon bombing had taken place 70 to 90 years ago, alleged bomber Dzhokhar Tsarnaev would have been stripped of his American citizenship in addition to being imprisoned or executed for his crimes. In the first decades of the 20th century, naturalized citizens like Tsarnaev were routinely deprived of their citizenship for committing radical, "un-American" activities that took place after their naturalization. Citizenship in those years was understood as a benefit offered by a country in exchange for its citizens’ obedience to the laws of the land, always with the threat that certain actions could lead to its loss. It’s an approach the Supreme Court later rejected in the name of equal rights.

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The Supreme Court reinforced the rights of naturalized citizens in 1967. Writing for the majority in the case of Afroyim v. Rusk, Justice Hugo Black said the 14th Amendment guaranteed protection for “every citizen of this Nation against a congressional forcible destruction of his citizenship.” When the 14th Amendment states that, “All persons born or naturalized in the United States … are citizens of the United States,” it makes citizenship an absolute right. The same is not true of “life, liberty, or property”; citizens can be deprived of each if they are afforded “due process of law.”

Today, a naturalized American can be stripped of citizenship only if facts emerge that would have initially warranted denial of his application—never for actions committed after the naturalization. This frames the fate of Dzhokhar Tsarnaev. He will probably be deprived of his liberty and, perhaps, his life. Even if condemned to death, however, Tsarnaev will face his sentence as an American citizen. Each citizen—even the most troubling—preserves his status. For the court, safeguarding the rights of each naturalized American ensures the dignity and rights of all.

The President, Targeting Killing, and the Constitution

Previous posts have discussed the federal government's efforts to kill specific terrorists, including American citizens. CNN reports:

The Senate Intelligence Committee will receive a classified document Thursday that seeks to justify the administration's policy of targeting Americans overseas via drone attacks, chairwoman Dianne Feinstein said.

"I am pleased that the president has agreed to provide the Intelligence Committee with access to the OLC (Office of Legal Counsel) opinion regarding the use of lethal force in counterterrorism operations," the California Democrat said in a statement Wednesday.
"It is critical for the committee's oversight function to fully understand the legal basis for all intelligence and counterterrorism operations."

The announcement came shortly after an administration official said President Barack Obama had yielded to demands that he turn over to Congress the classified Justice Department legal advice that seeks to justify the policy.

"Today, as part of the president's ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the Congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper," an administration official said Wednesday.

The 16-page white paper -- titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qaida or an Associated Force" -- is a policy paper rather than an official legal document. That policy paper was sent to key congressional committees last year but became public just this week.

From the text of the white paper:

The President has authority to respond to the imminent threat posed by al-Qa'ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law. Based on these authorities, the President may use force against al-Qa'ida and its associated forces. As detailed in this white paper, in defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qa'ida or its associated forces would be lawful under U.S. and international law. Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense. Nor would it violate otherwise applicable federal laws barring unlawful killings in Title 18 or the assassination ban in Executive Order No 12333. Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation. Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life. But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arises from an individual who is a senior operational leader of al-Q'aida or an associated force of al-Q'aida and who is,engaged in plotting against the United States.

The Debt and the Constitution

Senate Democratic leaders have written President Obama:

In the event that Republicans make good on their threat by failing to act, or by moving unilaterally to pass a debt limit extension only as part of unbalanced or unreasonable legislation, we believe you must be willing to take any lawful steps to ensure that America does not break its promises and trigger a global economic crisis — without Congressional approval, if necessary

AP explains:

Majority Leader Harry Reid, D-Nev., is among those urging Obama to consider options like invoking the 14th Amendment to the Constitution to find ways around the $16.4 trillion legal cap on government borrowing. The amendment states that the “validity of the public debt of the United States ... shall not be questioned,” which some lawmakers believe permits a way out of the debt limit jam.

At The Los Angeles Times, Erwin Chemerinsky wrote in 2011:

Unfortunately, there is no plausible way to read this provision as providing the president the ability to increase the debt ceiling without congressional action.

Article I, Section 8 of the Constitution says that it is Congress that has the power "to borrow money on the credit of the United States." The Constitution thus could not be clearer that borrowing money requires congressional action. Nothing in Section 4 of the 14th Amendment takes this power away from Congress or assigns it to the president. Section 4 of the 14th Amendment says only that the debt of the United States shall not be questioned; it says nothing about who gets to determine the size of the debt or in any way shifts this power from the legislature to the executive.

The power of the purse -- including the authority to tax, spend and borrow -- is quintessentially legislative. Not even a dire financial emergency would allow the president to take this over. The Constitution, thankfully, has no provision allowing for its suspension even in times of crisis.

Moreover, the debt ceiling is set by statute. Unless this law is unconstitutional, which it obviously isn't, the president cannot unilaterally repeal it and replace it with another law setting a higher debt ceiling.

Laurence Tribe, who once taught a young law student named Barack Obama, made a similar argument.

Around the same time as these articles, the president said:

There's a provision in our Constitution that speaks to making sure that the United States meets its obligations. And there have been some suggestions that a President could use that language to basically ignore this debt ceiling rule, which is a statutory rule. It's not a constitutional rule. I have talked to my lawyers. They do not—they are not persuaded that that is a winning argument. So the challenge for me is to make sure that we do not default, but to do so in a way that is as balanced as possible and gets us at least a downpayment on solving this problem.

American Samoa and Citizenship

As the Wall Street Journal reports, everyone born in a US territory is automatically a US citizen -- except for those born in American Samoa.

Everyone born in a U.S. state or territory automatically gets U.S. citizenship—unless one happens to be born in American Samoa.

That exception is at the heart of a federal lawsuit filed against the U.S. government this week by five American Samoans and a Samoan organization based in California.
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Over the past century, Congress has passed a host of laws regarding citizenship and the five U.S. territories, which are subject to only parts of the U.S. Constitution and a patchwork of U.S. laws.

A 1917 statute, for instance, granted automatic American citizenship to people born in Puerto Rico, which became a territory in 1898. Similar laws later granted citizenship to people born in Guam and the Northern Mariana Islands in the Pacific Ocean, and the U.S. Virgin Islands in the Caribbean Sea. But people born in American Samoa are classified as "noncitizen nationals," under a federal law first passed in 1940.

At that time, some in Congress were wary of granting full citizenship to those born in American Samoa, according to Rose Cuison Villazor, a law professor at the University of California, Davis, who is an expert on U.S. territorial law.

More recently, though, leaders in American Samoa have rebuffed efforts to extend American citizenship, partly out of fear it would lead the U.S. to challenge the territory's unique communal land-ownership rules.
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In the suit, filed in federal court in Washington, D.C, plaintiffs claim that a law explicitly denying American Samoans citizenship upon birth violates the Citizenship Clause of the 14th Amendment to the Constitution. That clause states that "all persons born…in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Several of the plaintiffs served in the U.S. military, according to the complaint.

"We fight America's wars, we have men and women in the line of duty," Leneuoti Tuaua, one of the plaintiffs, said in an interview. "Yet, the U.S. government doesn't seem to care about that."

See this document from the State Department's Foreign Affairs Manual, starting at page 21. 

Hispanic Turnout

Previous posts have dealt with political participation of Hispanic Americans. Adam Nagourney writes at The New York Times:

The nation’s rapidly growing Latino population is one of the most powerful forces working in President Obama’s favor in many of the states that will determine his contest with Mitt Romney. But Latinos are not registering or voting in numbers that fully reflect their potential strength, leaving Hispanic leaders frustrated and Democrats worried as they increase efforts to rally Latino support.

Interviews with Latino voters across the country suggested a range of reasons for what has become, over a decade, an entrenched pattern of nonparticipation, ranging from a distrust of government to a fear of what many see as an intimidating effort by law enforcement and political leaders to crack down on immigrants, legal or not.

Paul Barton writes at Gannett:

For Hispanic congressional candidates, this week's California primary brought some stinging disappointments, raising questions about whether the Hispanic community stands "organizationally ready" to solve persistent registration and turnout problems, political analysts say.

In several congressional districts where Hispanics make up at least 40 percent of the population, the Latino candidates finished with percentages that suggest they failed to fully energize that voting block.

"I think one of the big systematic things here is low turnout," said Shaun Bowler, political scientist at the University of California at Riverside. "Low turnout really helps GOP candidates and skews the electorate to older and more Anglo than the underlying population figures. And of course, one of the things about the population figure in relation to the vote is that voters (have to be) over 18 and U.S. citizens."

From the Census Bureau:

Birthright Citizenship and Diplomats

The Center for Immigration Studies argues that, although US-born children of foreign diplomats do not qualify for birthright citizenship, implementation is uncertain:

• Despite Congress’s clear intent to not create a completely universal and automatic birthright citizenship policy, the current application of the Citizenship Clause is so lax that the United States has a de facto universal birthright citizenship policy that denies U.S. citizenship by birth to no one.
  
  
• There is no federal requirement that hospitals ask new parents if they are foreign diplomatic staff. State agencies do not instruct hospitals to differentiate between children born to diplomatic staff and those born to U.S. citizens or temporary or illegal aliens. Hospitals issue the same birth certificates to all newborns.
  
  
• The Social Security Administration (SSA) does not investigate whether SSN requests are for children of foreign diplomats. Although the agency does recognize that U.S.-born children of foreign diplomats are not eligible to receive SSNs, there is no mechanism in place for preventing such issuance.
  
  
• The State Department is currently rewriting the agency’s guidelines on birthright citizenship, signaling a possibly significant departure from current 14th Amendment jurisprudence. The agency claims that children born to foreign diplomats are “entitled to birth certificates.”
  
  
• Children of diplomats who receive U.S. birth certificates and SSNs have greater rights and protections than the average U.S. citizen because they can enjoy all of the benefits of U.S. citizenship, but also invoke diplomatic immunity if they break a law. A lack of direction from Congress has created what one might consider a “super citizen” who is above the law.
  
  
• In order to end the practice of granting automatic U.S. citizenship to children of foreign diplomats, Congress could author regulations requiring declaration of parental diplomatic status on birth certificate request forms. As an alternative, Congress could require parents to have SSNs before a U.S. birth certificate or SSN is issued to a newborn. While this latter proposal might create better results and be more easily administered, it would have the effect of ending automatic birthright citizenship not just for children of diplomats, but also for children of illegal aliens and temporary aliens — an outcome that is more aligned with the intended scope of the 14th Amendment than the outcome created by current practices.

The Debt Ceiling and the 14th Amendment

On this date in 1868, the legislature of Louisiana voted to ratify the 14th Amendment, thus providing it with the approval of three-fourths of the state legislatures necessary to become part of the Constitution.

In The New York Times, Harvard law professor Laurence Tribe writes:

Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet. This provision states that “the validity of the public debt of the United States, authorized by law ... shall not be questioned.” They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.

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The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress.
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A core function of the Constitution is to “force us into a conversation” about our future, Mr. Obama once wrote. Sometimes, it does this by establishing principles citizens can invoke when they believe the government has overreached. At other times, it does so by directing us back to the political drawing board.

It is this second message the Constitution is sending at this moment. As Justice John Marshall Harlan II presciently warned, “the Constitution is not a panacea for every blot upon the public welfare.” Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis.