Eugene Volokh's Blog, page 143

[Stephen E. Sachs] Congress, the Fifth Amendment, and Personal Jurisdiction

[A recently filed amicus brief in Fuld v. PLO.]

Civil procedure students are used to hearing about the rules for state-court personal jurisdiction under the Fourteenth Amendment's Due Process Clause. But the Fifth Amendment has a Due Process Clause too. So what limits does it impose, if any, on federal-court jurisdiction? That question has been left open for more than two hundred years (at least in Supreme Court case law), but it's coming up for argument this term.

In Fuld v. Palestine Liberation Org., currently set for argument on April 1, the Court is considering the constitutionality of several antiterrorism statutes passed by Congress to punish attacks on Americans. These statutes let American victims and their families sue the responsible parties in American courts, even if the terrorist attacks occurred abroad and weren't focused on American targets. (These statutes were inspired by the 1985 attack on the Achille Lauro, in which Leon Klinghoffer, an American Jew, was shot and dumped from his wheelchair into the sea; his family then faced various hurdles in holding the guilty parties accountable.)

In one suit now before the Court, the families of the American victims obtained significant judgments against the Palestine Liberation Organization and the Palestinian Authority for sponsoring terrorist attacks in Israel and then rewarding the perpetrators. The Second Circuit ordered the cases dismissed for lack of jurisdiction, holding Congress's statutes unconstitutional under the Fifth Amendment, and the Supreme Court granted cert.

I recently filed an amicus brief in the case (also available on SSRN), arguing that limits on personal jurisdiction come from background limits on sovereign authority, rather than from the text of the Fifth or Fourteenth Amendments themselves—and also that these limits aren't always the same for the states and for the federal government. From the summary of argument:

The temptation in this case is to treat the United States as if it were simply one big state. The State of Nevada, even were it the size of the entire United States, still could not call to answer every defendant who attacked a Nevadan abroad. See Walden v. Fiore, 571 U.S. 277, 288–89 (2014). As this limit is enforced under the Fourteenth Amendment's Due Process Clause, and as the Fifth Amendment has a Due Process Clause too, it is tempting to conclude that the United States labors under precisely the same constraint, with the only difference being one of size.

This temptation is to be resisted, for the United States is not simply one big state. True, neither the United States nor any state may deprive a person of life, liberty, or property without due process of law. But the United States and a single state differ greatly with respect to the external limits on their sovereign authority—that is, with respect to the principles the Due Process Clauses enforce and for which those Clauses have "become a refuge." Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028, 2050 (2023) (Alito, J., concurring in part and concurring in the judgment). State laws are restricted to each state's sphere of authority, serving as "rules of decision" only "in cases where they apply." 28 U.S.C. § 1652 (2018). Yet Acts of Congress can be "the supreme Law of the Land," U.S. Const. art. VI, cl. 2, overriding contrary doctrines and extending beyond our borders to protect Americans abroad.

This Court should not bind the United States with the fetters worn by individual states simply because the latter have become so familiar—especially when neither the original Constitution nor this Court's precedents require it. As Justice Story recognized, Congress could have "a subject of England, or France, or Russia * * * summoned from the other end of the globe to obey our process, and submit to the judgment of our courts"; such a statute might violate "principles of public law, public convenience, and immutable justice," but a federal court "would certainly be bound to follow it, and proceed upon the law." Picquet v. Swan, 19 F. Cas. 609, 613–15 (CCD Mass 1828) (No. 11,134). If Congress had such powers at the Founding, it never lost them since. So long as Congress's power to call foreigners to answer is at least as broad as its power to regulate their conduct abroad, the respondents here were obliged to appear in the district court, and the plaintiffs' claims must be allowed to proceed.

1. As an original matter, the Fifth Amendment did not place territorial restrictions on Congress's powers to call defendants to answer. Rules of personal jurisdiction predated the Due Process Clause; they were rules of general and international law, which states might override within their own courts but which would be enforced by the courts of other states, as well as by federal courts in diversity jurisdiction or under the Full Faith and Credit Clause. To the extent the issue arose in the early Republic, there was no question but that Congress could supplant these rules with rules of its own design, just as it could use other enumerated powers to supplant other rules of international law. See generally Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020). After the Civil War, the Fourteenth Amendment enabled the better enforcement of jurisdictional limits on state courts via federal-question review: to deprive someone of life, liberty, or property through a jurisdictionless judgment was to deprive them of these things without due process of law. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017). That had no impact on federal courts, however, which already had to comply with the rules as set out by Congress and as understood by this Court.

2. Congress has not lost these powers since. While the era of International Shoe Co. v. Washington, 326 U.S. 310 (1945), identified various "territorial limitations on the power of the respective States," Hanson v. Denckla, 357 U.S. 235, 251 (1958), this Court has never reflected those limitations back onto the United States as a whole. Instead, different principles of sovereign authority continue to apply via due process to the federal government and to the states. Nor would reversing this approach be harmless. Pretending that the United States is simply one big state for personal-jurisdiction purposes would limit the federal government in negotiating treaties and conducting foreign relations. It would also interfere with federal laws on antitrust, securities regulation, bankruptcy, and child custody. The Court should not pretermit the political branches' consideration of these issues by deciding the case on a mistaken due process claim.

3. To decide the case before it, this Court need not determine the full scope of Congress's jurisdictional powers. The respondents here were served with process within the United States in a manner explicitly authorized by statute, under clear Article I authority, with subsequent enactments making it as clear as Congress knows how that such service is to be held effective. The Court may uphold such service while leaving open the outer limits of what the Fifth Amendment might permit, just as it has for the last two hundred years. It also need not take any view of the parties' complex arguments about formal and informal consent to jurisdiction, under either the Fourteenth Amendment or the Fifth. But by the same token, the Court should not rule out the possibility that Justice Story was correct. As the Second Circuit's judgment can only be right if Justice Story was wrong, the Court should reverse that judgment and remand.

And from later in the brief:

Indeed, both the courts of appeals and the respondents in this case seem to recognize the necessity of distinguishing the scope of federal authority from that of the states. Consider whether the district court would have had jurisdiction in this case if the terrorists whom these defendants rewarded had been targeting Americans in particular—even had they acted out of simple anti-American animus, with no aspiration to influence our government's deliberations or foreign policy. If such attacks aimed at Americans abroad would be treated differently—as both respondents and the courts of appeals seem to envision—then the federal courts are being treated differently as well, for such jurisdiction is unavailable to the states.

For example: had Anthony Walden acted out of simple anti-Nevada animus in detaining the cash of Nevada resident Gina Fiore (perhaps because he considered Las Vegas tawdry), still "no part of [his] course of conduct" would have "occurred in Nevada"; he would still never have "traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada"; and "direct[ing] his conduct at plaintiffs whom he knew had Nevada connections" would still "not create sufficient contacts" with the State of Nevada, as opposed to residents thereof. Walden, 571 U.S. at 288–89. Indeed, Walden specifically rejected as too expansive a test permitting state-court jurisdiction when a defendant "(1) intentionally targets (2) a known resident of the forum (3) for imposition of an injury (4) to be suffered by the plaintiff while she is residing in the forum state"—let alone while she travels abroad. Id. at 289 n.8; cf. id. at 288 (distinguishing Calder v. Jones, 465 U.S. 783 (1984), on the ground that there the "defendants' intentional tort actually occurred in California"); id. at 290 n.9 (emphasizing the physical, as opposed to virtual, contacts "where the conduct giving rise to this litigation took place").

In other words, if the United States were really to be treated as one big state, to be subjected to the International Shoe test unmodified, someone who murders Americans abroad specifically because they are Americans (and with no other desire to influence policies in America) is immune from the jurisdiction of American courts. The instinctive reaction to this position by both respondents and the court of appeals is good evidence that it is untenable. Individual states may have only limited powers to punish conduct outside their borders that is lawful where it occurs; but a government authorized to regulate foreign commerce, as well as to "define and punish * * * Offences against the Law of Nations," U.S. Const. art. I, § 8, cl. 10, also has the "incidental or implied powers" to call those who violate those regulations and commit those offenses before its courts. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 406 (1819).

Before long I hope to write up a response to some of the counterarguments in the respondents' brief, as well as those found in other amicus briefs for the petitioners. (Strangely, not a single amicus brief was filed in support of the respondents.) In the meantime, read the whole thing!

[Update: Cross-posted to Divided Argument.]

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[Paul Cassell] Is There a Right to a Jury Trial for Death on the High Seas Act Claims Not Designated as Admiralty Claims?

[Retired Judge Gertner and I have filed an amicus brief in support of certiorari to answer the question, which has important important implications for admiralty jurisdiction.]

A certiorari petition is pending raising an important issue about admiralty jurisdiction and claims raised under the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301-30308. Along with retired Judge Nancy Gertner, I filed an amicus brief supporting certiorari to make clear that jury trial rights are protected under DOHSA for claims that have not been designated as admiralty claims.

The pending petition concerns a wrongful-death case, arising out of the tragic Boeing 737 MAX crash into the Java Sea. The petition raises a fundamental question about admiralty jurisdiction. The estate and family of Andrea Manfredi, who died in the crash, brought in personam wrongful-death claims against Boeing and others under DOHSA. These claims can be heard in admiralty, but they also satisfy the requirements for diversity and multiparty, multiforum jurisdiction. Under the Federal Rules of Civil Procedure, "If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may"—but need not—"designate the claim as an admiralty or maritime claim." Fed. R. Civ. P. 9(h). The Manfredis did not so designate their claims. The Seventh Circuit nevertheless held that these DOHSA claims are subject to exclusive admiralty jurisdiction in federal court, meaning no jury-trial right applies. The court so held despite recognizing that the same claims could be heard in state court, where they "are typically tried by juries."

The Manfredis have filed cert petition, seeking review of this question: Whether a federal court can have exclusive admiralty jurisdiction over a claim when a non-admiralty state court would have concurrent jurisdiction over the same claim.

Judge Gertner and I have both presided over many jury trials and believe Seventh Amendment jury trial rights are important. We have filed an amicus brief supporting cert and the right to a jury trial in these circumstances. Here's our brief's introduction:

No court should curtail the Seventh Amendment right to a jury trial in cases at law brought by plaintiffs properly invoking diversity jurisdiction and multiparty, multiforum jurisdiction under 28 U.S.C. §§ 1332, 1369. Here, the Manfredi family brought a wrongful-death action against Boeing and other defendants under that jurisdiction. Although the surviving family members potentially could have invoked the district court's admiralty jurisdiction under 28 U.S.C. § 1333, they decided not to do so.

The Manfredi family demanded a jury trial, and they specifically elected not to make a declaration under Rule 9(h) of the Federal Rules of Civil Procedure to assert admiralty jurisdiction under Section 1333. In cases like this one, in which a plaintiff has done nothing affirmative to invoke admiralty jurisdiction, federal courts must consider the action only on the basis of diversity jurisdiction and not admiralty jurisdiction. Yet that is not what the Seventh Circuit did here.

The Death on the High Seas Act gives plaintiffs a choice. It states that a plaintiff "may bring a civil action in admiralty" when the death of an individual is caused by a wrongful act or neglect. 46 U.S.C. § 30302 (emphasis added). Here, the Seventh Circuit misinterpreted that permissive statutory language to make it mandatory—holding that DOHSA "require[s] cases to be brought in admiralty."

The Seventh Circuit's ruling is at odds with well-settled principles of federal jurisdiction and constitutional law. The decision should be reversed, and this Court should resolve the circuit split in favor of jury trials in these circumstances.

Several law professors who are experts on admiralty and maritime law (Professors Martin Davies, Robert Force, Steven Friedell, Thomas C. Galligan, Jr., and Thomas Schoenbaum) have filed a separate amicus brief supporting cert. Among other things, they argue that the Seventh Circuit's approach contradicts the original understanding of admiralty jurisdiction:

The Seventh Circuit's approach contradicts the original understanding of how admiralty and common law jurisdiction interact. Multiple Justices of the Court have previously expressed strong concerns about the very type of non-textual, ahistorical approach to admiralty jurisdiction exemplified by the Seventh Circuit decision. The "Court pursues clarity and efficiency in other areas of federal subject-matter jurisdiction, and it should demand no less in admiralty and maritime law." Jerome Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 555 (1995) (Thomas, J., concurring); id. at 548 (O'Connor, J., concurring) (Denying "that, having found admiralty jurisdiction over a particular claim against a particular party, a court must then exercise admiralty jurisdiction over all the claims and parties involved in the case. Rather, the Court should engage in the usual supplemental jurisdiction and impleader inquiries.") (emphasis original).

Our brief was written and filed by Jeffrey Beelaert at Givens Pursley. Note: Although I'm involved (on a pro bono basis) in the criminal proceedings against Boeing in the Northern District of Texas, I have no involvement in these civil proceedings, which originated in the Northern District of Illinois.

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[Eugene Volokh] Nuisance, "Modern Female Artists," Hunting, and Fiber Lines for Internet Access

In Bingham v. Kentucky Foundation for Women, Inc., decided Mar. 6 by Judge Charles Simpson (W.D. Ky.), writer Sallie Bingham owned a good deal of land, some of which she donated (to oversimplify) to the Foundation:

Historically, the Foundation has used the Real Property for women artists' retreats and residencies. However, according to the Foundation, Hopscotch House [the 5-bedroom residence on the property] has become outdated and artists' interest in staying there has dropped precipitously. Thus, it "proposed a renovation and addition to Hopscotch House to reinvigorate interest among female Kentucky artists in Hopscotch House, bringing it into the modern era and making it more attractive to, and safer for, modern female artists." The Foundation alleges that it "asked Bingham if she would be willing to donate funds for the project …." and "Bingham initially agreed." But later, Bingham "withdrew her funding."

There's a lot going on in the case (including claims for slander of title, defamation, and more), but here's an excerpt that struck me as unusual; note that it appears that the Foundation's property is surrounded by Bingham's land:

The Foundation maintains that Bingham is liable for creating a private nuisance because she (1) has prevented the Foundation from connecting its property to water lines and the internet and (2) permits hunting on her adjacent farmland which makes artists feel unsafe….

Under Kentucky law, nuisance consists of "that class of wrongs which arise from the unreasonable, unwarranted, or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequential damage." Accordingly, a nuisance is "anything which annoys or disturbs the free use of one's property, or which renders its ordinary use or physical occupation uncomfortable." Thus, the general rule is that "in order to be a nuisance the use of the property must disturb physical comfort or be offensive to physical senses." If the alleged nuisance causes only emotional upset, it is not actionable. McCaw v. Harrison (Ky. 1953) (plaintiff's fear that cemetery might contaminate wells and reduce property value not actionable).

Here, the Foundation has fallen short of stating a nuisance claim. The Foundation has alleged that Bingham's permitting hunting on her land "could result in crossfire across its property" and has caused some female artists to fear staying there. The Foundation has not alleged that dangerous crossfire has in fact occurred or has otherwise disturbed anyone's physical comfort.

The Foundation also asserts that Bingham's refusal to grant an easement so that the retreat can run new fiber lines for internet access and have access to "modern water lines" has resulted in a basic lack of amenities that artists find "challenging." But there are no allegations that anyone's physical comfort is being disturbed by something that is offensive to the senses [such as loud noise or blasting that shakes nearby homes].

The Foundation asserts that Smith v. Carbide and Chem. Corp (6th Cir. 2007) stands for the proposition that the loss of such conveniences constitutes an actionable nuisance. The Court disagrees. In Smith, the defendant had contaminated ground water, rendering the plaintiffs unable to use their water wells on which they had historically relied. No like circumstance has been pleaded here. Instead, the Foundation has alleged only that it needs to truck in water to fill a cistern—a condition that has been true since it bought the property in 1987.

As for the lack of a fiber-cable connection to the internet, such does not disturb one's physical comfort and rendering a vicinity less attractive does not state an actionable claim under Kentucky law. See L.D. Pearson & Son v. Bonnie (Ky. 1925) (people's reluctance to live next door to funeral home does not state action for private nuisance even though homes may lose value as result of undesirability)….

 

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[Eugene Volokh] Ban on Public Employee Union Payroll Deductions, with Exception for Certain Unions, Violates Kentucky Constitution

From Commonwealth v. Kentucky Educ. Ass'n, decided Mar. 7 by the Kentucky Court of Appeals (Judge Susanne Cetrulo, joined by Judges Sara Walter Combs and Kelly Mark Easton):

[SB 7] prohibits public employers from allowing most employees to use payroll deductions to pay dues to labor organizations or to make contributions for political activities, such as through contributions to political committees connected to labor organizations. But Section 1(10) of SB 7 exempted labor organizations "which primarily represent public employees working in the protective vocations of active law enforcement officer, jail and corrections officer, or active fire suppression or prevention personnel." {The only stated purpose of the final version of SB 7 was to avoid "the appearance that public resources are being used to support partisan political activity[.]"} …

"All men are, by nature, free and equal …." Ky. Const. Section 1. "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority." Ky. Const. Section 2. "All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services…." Ky. Const. Section 3.

Section 3 is the oldest continuous provision in the Kentucky Constitution. It is in all four of Kentucky's Constitutions. While we have recognized that corporate entities are entitled to equal protection, we should not lose sight that the focus of Section 3 is on people. The Appellees complain of disparate, politically motivated treatment of labor organizations, but ultimately it is the inexplicable different treatment of individuals which most clearly illustrates the equal protection violation in this case….

[T]he legislative regulation at issue here, payroll deduction policies, is a matter of social or economic policy. It does not involve any suspect class requiring strict scrutiny or a similar heightened level of review. Rather, the question is whether there is any rational basis for the different treatment of individuals. All parties in these cases agree that rational basis is the proper level of review….

[R]ational-basis review does not give courts a license to judge the wisdom or fairness of choices made by the Legislature. The courts may not act as a "superlegislature." By the same logic, the Legislature may not act as a "supercourt" deciding what the Kentucky Constitution prohibits. These lines are drawn by the separation of powers provisions in our Constitution in the attempt by the framers to achieve balance among three separate and equal branches of government….

"[O]ur analysis begins with the presumption that legislative acts are constitutional." "A classification by the legislature should be affirmed unless it is positively shown that the classification is so arbitrary and capricious as to be hostile, oppressive and utterly devoid of rational basis." "[A] statute does not have to be perfect to pass constitutional muster." …

While any conceivable rational basis will do, "we must ask whether a rational basis exists for the General Assembly to believe that the legislation would further the government purpose." In this instance, the exception allowed by SB 7 is in direct opposition to the stated purpose of SB 7. The language of SB 7 states that its purpose is to avoid the appearance that public resources are being used to support partisan political activity, and the OAG offers no different purpose, even though we realize that the OAG has no burden to identify and explain any rational basis.

Allowing an exception for some labor organizations with majorities of a certain type of employee does the exact opposite of the only stated purpose—it creates an appearance of favoritism for some labor organizations over others because of partisan political activity even at the expense of individual protective vocation employees, who may or may not get the benefit of the exemption. Without question, the Legislature could have disallowed payroll deductions to everyone because the state has no obligation to facilitate political speech. But favoring some speech and facilitating it alone may present a different constitutional question in the form of First Amendment viewpoint discrimination, which we need not reach in our equal protection analysis.

The Plaintiffs in the Jefferson County case properly developed the record to show the disparate treatment of individuals under SB 7. Eddie Crutcher is a Court Process Officer with the Metro Auxiliary Police Force. He is a peace officer with arrest authority and carries a weapon. He works daily in the juvenile court system. Yet he is not considered by SB 7 to be in a protective vocation like other police officers because he happens to be a member of a labor organization not primarily composed of police officers as defined.

On the other side of the equation, people in nonprotective vocations are exempted if they happen to be members of a labor organization composed primarily of people in protective organizations. Clerical employees of fire departments, who do not themselves engage in protective or hazardous work like their firefighter co-workers, none-the-less get to use payroll deduction. We will not unnecessarily lengthen this Opinion with other examples on both sides of the line drawn by SB 7.

The OAG insists that the line drawn here is valid because the Legislature has validly drawn similar lines before. For example, in KRS 61.592 retirement benefits are impacted by performing hazardous work. But everyone who performs such work gets this enhanced retirement benefit regardless of what labor organization to which they may belong.

The OAG explains that protective vocations are basically the same vocations involving hazardous work. Yet emergency medical personnel perform hazardous work and are entitled to increased retirement consideration under KRS 61.592, but they did not make the list of protective vocations. They are a protective vocation under any reasonable application of the phrase because they serve in dangerous situations to tend to those who have been often gravely injured. If the only reason for the difference is the political tendencies of whatever labor organization such employees may join, then it is hard to see the line drawn as anything but arbitrary and in violation of equal protection of the law for the employees.

Undaunted, the OAG insists that over-inclusiveness or under-inclusiveness because of lines drawn is not a problem. Under-inclusiveness alone has been held insufficient, but only when the line drawn still had a rational basis.

In the present case, the exemption is both inexplicably underinclusive and overinclusive. While not alone necessarily fatal, this imprecision in the line drawn, when considered in the context of the government goal stated, is problematic for the OAG's position. Inability to explain inclusiveness may lead to the conclusion that the lines have been drawn for the purpose of invidious discrimination rather than because of the need to draw a rational line….

The line drawn by the Legislature in SB 7 is drawn in such a way to include protective vocation employees and other employees on both sides of the line. The exemption in SB 7 was supposed to give identified groups of employees the right to use payroll deductions, but it does not do so. It favors some labor organizations and disfavors others for no rational reason when we consider the subject of the law relates to the right of individual employees to use payroll deductions….

The exemption contained in KRS 336.180(10) (Section 1(10) of SB 7) violates the equal protection guarantee embodied in Sections 1, 2, and 3 of the Kentucky Constitution….

Amy D. Cubbage, Marc G. Farris, Alice O'Brien & Jeffrey W. Burritt represent the Association.

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[Eugene Volokh] N.Y. Times Columnist on the Deception Surrounding the COVID-19 Origin Debate

From yesterday's column by Prof. Zeynep Tufekci:

[T]o promote the appearance of consensus [that the COVID-19 pandemic was definitely caused by natural transmission], some officials and scientists hid or understated crucial facts, misled at least one reporter, orchestrated campaigns of supposedly independent voices and even compared notes about how to hide their communications in order to keep the public from hearing the whole story. And as for that Wuhan laboratory's research, the details that have since emerged show that safety precautions might have been terrifyingly lax….

The first {influential publication[] that quite early in the pandemic cast the lab leak theory as baseless} was a March 2020 paper in the journal Nature Medicine, which was written by five prominent scientists and declared that no "laboratory-based scenario" for the pandemic virus was plausible. But we later learned through congressional subpoenas of their Slack conversations that while the scientists publicly said the scenario was implausible, privately many of its authors considered the scenario to be not just plausible but likely. One of the authors of that paper, the evolutionary biologist Kristian Andersen, wrote in the Slack messages, "The lab escape version of this is so friggin' likely to have happened because they were already doing this type of work and the molecular data is fully consistent with that scenario." …

Andersen later testified to Congress that he had simply become convinced that a lab leak, while theoretically possible, was not plausible. Later chat logs obtained by Congress show the paper's lead authors discussing how to mislead Donald G. McNeil Jr., who was reporting on the pandemic's origin for The Times, so as to throw him off track about the plausibility of a lab leak.

The second influential publication to dismiss the possibility of a lab leak was a letter published in early 2020 in The Lancet. The letter, which described the idea as a conspiracy theory, appeared to be the work of a group of independent scientists. It was anything but. Thanks to public document requests by U.S. Right to Know, the public later learned that behind the scenes, Peter Daszak, EcoHealth's president, had drafted and circulated the letter while strategizing on how to hide his tracks and telling the signatories that it "will not be identifiable as coming from any one organization or person." The Lancet later published an addendum disclosing Daszak's conflict of interest as a collaborator of the Wuhan lab, but the journal did not retract the letter….

There's much more; much worth reading.

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[Josh Blackman] Some Family And Immigration Law Questions About Birthright Citizenship

One virtue of birthright citizenship is simplicity. A child born in the United State is a citizen, and the government does not need to make any inquiries about either parent.

But let's assume, for argument's sake, that the Constitution does not provide for birthright citizenship in all cases. A host of questions would be raised that do not have simple answers.

First, let's start with a question under current law. The example that everyone seems to agree with is that the child of an ambassador is not a birthright citizen. The answer is a simple no, right? Not so fast. What happens if an ambassador has a child with a U.S. citizen? Would that child then be a citizen? In other words, does the "exception" to birthright citizenship only apply if both the father and mother were part of a diplomatic mission from abroad?

During debates over the Fourteenth Amendment, the status of diplomats was often discussed. But I suspect it was assumed that an ambassador would be married, if at all, to a woman from his home country. Many states had prohibitions on miscegenation, which would further restrict the ability of some ambassadors to marry American women. Certainly diplomats have fathered children with American women over the years. Were those kids citizens at birth? A child born to an unmarried couple would generally be considered illegitimate, or a bastard. Would a bastard receive birthright citizenship if his mother was a citizen and his father was an ambassador?

Second, moving away from the ambassador example, how would citizenship work if one parent was a citizen and the second parent was not a citizen. Morales-Santana held that Congress could not apply one set of rules when the mother was a citizen and another set of rules when the father was a citizen. Such disparate treatment, Justice Ginsburg found, violates the Equal Protection Clause of the Fifth Amendment (even if such a provision of the Constitution actually existed.) But my question is a bit different. In the absence of any statutory implementing legislation, how would the Citizenship Clause apply to a child with one parent who is a citizen and one parent who is not a citizen? I don't think there is a clean answer. I suspect people in the 1860s would have presumed that a person who was not a citizen would marry someone who was of the same status but I am confident there were exceptions.

Third, assuming that the Fourteenth Amendment does not grant birthright citizenship, what would happen to the child of an illegal alien who was granted some form of statutory lawful presence, such as DACA? Would that statutory grant of temporary protection overcome the presumption against birthright citizenship for the child of an otherwise removable person?

Fourth, would the child of a person seeking asylum be eligible for birthright citizenship? Scholars who argue against birthright citizenship focus on concepts like loyalty and allegiance. But a person seeking asylum is affirmatively rejecting an allegiance to his home nation. Indeed, the asylum applicant fears that if he returns to his home country, he would be subject to persecution. Would a claim of asylum provide the requisite allegiance to justify birthright citizenship.

Fifth, how would birthright citizenship interact with surrogacy? Is citizenship determined based on the status of the mother who carries the child to term? Or the woman who donated the egg? The man who donated the sperm? And so on. I'm sure other countries that lack birthright citizenship have considered these questions.

These questions bring me back to the early days of the DAPA litigation. In December 2014, I wrote:

In the run-up to NFIB v. Sebelius, health care lawyers suddenly had to become experts in constitutional law, and constitutional lawyers had to become experts in health care law. My sense (from personal experience) is that with rare exception, neither group fully succeeded. There is a similar dynamic now with the immigration executive action. Immigration lawyers are being asked to opine on the scope of the President's duty to take care that the laws are faithfully executed, and constitutional lawyers are being asked to weigh in on the complicated immigration code. At this point, there is still quite a gap between the two.

I don't profess to be an expert on immigration law, but I have written extensively about the intricacies of the INA over the years--something that not all constitutional law scholars have bothered to learn. That background has helped me see current debates over birthright citizenship a bit more cleanly.

Yet, I find that many scholars writing on the constitutional issues underlying birthright citizenship have not fully considered the technical issues of immigration law. Conversely, scholars of immigration law have not fully considered all of the competing arguments based on constitutional law. People just assume that the side they agree with is obviously correct. I still think the correct answer is that the Fourteenth Amendment provides birthright citizenship, but I freely acknowledge there are some competing arguments and complexities.

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[Ilya Somin] Trump's Awful Decision to Gut Voice of America and Radio Free Europe/Radio Liberty

[Trump is destroying a valuable source of American "soft power" and an inspiration to people suffering under authoritarian regimes.]

(RFE/RL)

Yesterday, President Donald Trump issued an executive order essentially gutting Voice of America, Radio Free Europe/Radio Liberty, and other US government-supported media aimed at getting news and information to populations living under authoritarian regimes. The EO has resulted in a freeze of their congressionally allocated funds, and puts all or most staff on leave (presumably in preparation for laying them off permanently).

Trump's order is a blow to America's "soft power" and to dissidents battling anti-American authoritarian regimes. VOA, RFE/RL and other similar media are among the few federal programs whose value far exceeds the money expended on them.

During the Cold War, millions of people living under communist regimes listened to these networks, and got news and analysis that countered regime propaganda. These media helped inspire dissident movements, and the eventual overthrow of communism in the USSR and Eastern Europe in 1989-91. My own parents were among the many Soviet citizens who clandestinely listened to VOA broadcasts, and it helped solidify their opposition to the regime.

In more recent years, VOA and RFE/RL operate on the internet as much or more than on traditional radio. But they continue to be valuable resources for dissidents and others living under authoritarian regimes, such as those of Russia and Belarus. Radio Free Asia and Radio Marti provide similar services for China and Cuba, respectively.

Shutting these programs down is an obvious boon to dictators like Vladimir Putin and Xi Jinping. As Russian opposition leader Vladimir Kara-Murza puts it, Trump's EO is "One more champagne bottle opened in the Kremlin." It is, sadly, of a piece with the Trump Administration's increasing estrangement from other liberal democracies, and alignment with despots like Putin.

Nor can it be said that the order will save any significant amount of money. The annual budget of the US Agency for Global Media (USAGM), which oversees all these broadcasters, is only about $950 million, barely a rounding error in the $7 trillion federal budget. For that small investment, we significantly weaken some of America's principal enemies by bolstering internal opposition to their regimes. We thereby also augment the "soft power" of the appeal of American liberal democracy.

Since 2014, I have often been an (unpaid) guest commentator on Russian-language RFE/RL, and a few times on VOA.  I was proud to do it, as a small partial repayment of the debt I and others owe to these organizations.

One of the strengths of RFE/RL and VOA is that they have a measure of editorial independence from the administration in power. Thus, they often have commentators critical of various aspects of US policy. For example, in my very first RFE/RL interview, back in 2014, I criticized the Obama Administration for usurping Congress' war powers. In later appearances, I was also critical of Trump and Biden on various issues. Obviously, RFE/RL and VOA often host defenders of the administration in power, as well. When I appeared, it was often together with another expert advocating the opposite view. But the willingness to host critics strengthens these outlets' credibility with the target audience, and provides it with valuable lessons on how a free media operates.

This editorial independence may well be what attracted Trump's ire. A few days ago, he became angry when a VOA reporter (correctly) pointed out that Trump had advocated expelling the civilian population of Gaza. Although Trump denied it, he had in fact previously advocated exactly that. It may be no accident that the EO targeting VOA came just two days later.

Regardless of Trump's motives, the apparent shuttering of VOA and RFE/RL is a blow to people living under oppression and a needless gift to America's enemies. With measures such as this and the betrayal of Ukraine, Trump's foreign policy is making anti-American authoritarians great again.

NOTE: As indicated above, I have been a guest commentator on Russian-language RFE/RL and VOA. As also noted, this is an unpaid role. However, cynics might still argue I am only opposed to Trump's order because it somehow hurts my career. The truth of the matter is that appearing on Russian-language media does little or nothing for my career, because hardly any of the people with influence over my career prospects (mostly other US law professors) follow such media or even know Russian. I appeared on these programs as a (very small) public service because I am one of the few Russian speakers available to them who have relevant expertise on the kinds of law and policy issues they interviewed me about.

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[Eugene Volokh] A Mother's Complaint

["Something always seemed off and not quite right with the way my children's grades and GPA were displayed .... [M]y children [were] overlooked for school awards, academic scholarships and grant opportunities that they otherwise would have been eligible for, the opportunity to be valedictorian, salutatorian ...."]

From Doe v. Edoff, decided Mar. 6 by Judge Sean Cox (E.D. Mich.):

Plaintiff's [pro se] complaint names more than forty individuals as Defendants and purports to assert federal claims against them. Aside from listing the names of the various Defendants, Plaintiff's complaint includes no factual allegations specific to the Defendants. Plaintiff states her claim in the following paragraph:

Something always seemed off and not quite right with the way my children's grades and GPA were displayed on Powerschool and in 2022 the fraud surfaced of multiple staff members employed with L'Anse Creuse Middle School North, L'Anse Creuse High School North and L'Anse Creuse Public School System; illegally manipulated the Powerschool and Schoology systems and illegally Falsifying Public School Records which resulted in my children being overlooked for school awards, academic scholarships and grant opportunities that they otherwise would have been eligible for, the opportunity to be valedictorian, salutatorian as well as kept them ineligible to have their California, New York and Illinois entertainment permits renewed from 2022 until the present.

The district court holds plaintiff can't proceed under a pseudonym, and that she needs to file an amended Complaint that identifies herself. The court also signals to the plaintiff that she might want to offer some more details when she files an amended complaint.

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[Josh Blackman] Today in Supreme Court History: March 16, 1925

3/16/25: Pierce v. Society of Sisters argued.

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[Ilya Somin] Trump Invokes Alien Enemies Act as Tool for Deportation - Federal Court Issues Temporary Restraining Order Against it [Updated]

[If courts allow Trump to get away with using the Act in peacetime, it would set a dangerous precedent.]

Cartoon depicting congressional debate over the Alien and Sedition Acts. (NA)

 

Today, President Donald Trump issued an executive proclamation invoking the use of the Alien Enemies Act to detain and deport members of Tren de Aragua Venezuelan drug gang. A few hours earlier, a federal court issued a temporary restraining order blocking the executive from using the Act to deport five Venezuelans who were apparently about to be deported on that basis.

The Alien Enemies Act was one of the notorious Alien and Sedition Acts of 1798, the only one that is still in force. If courts let the Administration use it, they could potentially detain and deport even legal immigrants with little or no due process. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in detail in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify  as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua is an awful criminal organization. But it is not "invading" the United States, and it is not a "foreign nation or government."

Even if the administration is right to claim that Tren de Aragua has some connections to Venezuelan government officials, that does not mean the gang is itself a nation-state. Lots of organized crime groups bribe or otherwise suborn government officials to facilitate their black market activities. That doesn't turn these drug cartels into governments, nor does it convert their criminal activities into an "invasion."

In my last post about this issue, I  explained in more detail why drug cartel activities don't qualify as an "invasion" and why a contrary ruling by the courts would set a dangerous precedent. Among other things,  States would be authorized to "engage in war" in response (even without congressional authorization), and the federal government would empowered to suspend the writ of habeas corpus, and thereby detain people - including US citizens - without charges or trial.

Moreover, although the current proclamation is limited to members of Tren de Aragua, if it is upheld there would be little to prevent the administration from using the Alien Enemies Act against other immigrants, including legal ones. Moreover, even under the current proclamation, the lack of of meaningful due process protections under the AEA (there is no right to a hearing, for example) means that some people could be detained or deported merely because the government claims they are members of Tren de Aragua, even if there is no real proof that they are.

In its brief appealing today's temporary restraining order, the administration takes the position that invocations of the Act are a "political question" that the judiciary has no power to review. If this position prevails, the president could use the AEA against any immigrants from any country anytime he wants, simply by declaring there is a "invasion" going on and the people he seeks to detain and deport are somehow connected to it. Moreover, as noted above, such an unreviewable declaration would trigger other sweeping powers, such as the power to suspend the writ of habeas corpus - even for US citizens.

Much is at stake in the litigation over this issue. And not just for immigrants.

I have previously explained why invocations of the AEA and the definition of "invasion" should not be considered unreviewable political questions here, and here. Here's an excerpt outlining some of the reasons:

There is no good reason to hold that the definition of "invasion" is a political question, especially if doing so would give the president a blank check to usurp power over… Congress and suspend the writ of habeas corpus anytime he wants. Such a vast concentration of power would surely go against the original meaning, as it would enable the president to engage in arbitrary detention at will – exactly the kind of abuse early Americans had experienced at the hands of the British and sought to prevent in the future. "Invasion" has a clear definition readily susceptible to judicial interpretation…

The TRO issued by the district court lasts for fourteen days. In the meantime, the court is likely to consider whether to issue a more permanent injunction. Litigation over this vital issue will surely continue for some time to come, possibly even reaching the Supreme Court.

UPDATE: US District Court Judge James Boasberg has now expanded the temporary restraining order to cover "all noncitizens in U.S. custody"  covered by Trump's invocation of the Alien Enemies Act.

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