Fidelity to the Constitution

  • March 12, 2015

    by Nanya Springer

    The Citizenship Clause of the 14th Amendment reads: “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.”  This statement may seem simple enough, but U.S. Senator David Vitter is once again pushing legislation to upend the Constitution’s provision of birthright citizenship.

    According to Vitter, the 14th Amendment is misunderstood and contains a loophole that needs to be closed to prevent an influx of “birth tourists.”  Constitutional law experts say the Amendment is straight forward, and Vitter and his cohorts are trying to destroy a constitutional right.

    This is not a new debate.  The faulty arguments behind Vitter’s legislation were addressed and discredited years ago by scholars including Garrett Epps of the University of Baltimore School of Law and Elizabeth Wydra of the Constitutional Accountability Center, who authored an Issue Brief on the subject.  Take a look at the resources below for a thorough explanation of why new attempts to take away birthright citizenship are still wrong.

    Born in the USA?: The Historical and Constitutional Underpinnings of Birthright Citizenship (video)

    Born Under the Constitution: Why Recent Attacks on Birthright Citizenship Are Unfounded, Elizabeth Wydra (Issue Brief)

    Epps on “Da Vinci Code Originalism” and the Citizenship Clause (ACSblog)

    Here We Go Again: At Republican Debate, Pawlenty Denies Constitutional Text and History Establishing Birthright Citizenship, Elizabeth Wydra (ACSblog)

  • March 11, 2015
    Guest Post

    by Raph Graybill, Fellow, Yale Institution for Social and Policy Studies (ISPS)

    This spring, western state legislatures will consider a series of laws demanding the end of public land management by the federal government.  The bills, which evoke the “Sagebrush Rebellion” anti-conservation movement of the 1970s, issue a state-law “demand” that the United States relinquish its title to American public lands and transfer ownership to states.

    Nearly two years after Utah passed its “Transfer of Public Lands Act” (TPLA), similar laws are under consideration in a majority of western states.  At stake is the core of American conservation policy.  Under state ownership, state governments could restrict public access, authorize commercial development or even divide lands for private sale.  Current federal environmental law effectively forecloses these possibilities, limiting privatization and preventing environmental degradation.

    Other outlets have addressed the policy wisdom of transfer demand laws, but very little work has been devoted to understanding their constitutional validity.  This post will address the legal arguments behind transfer demands with an eye toward understanding both the Constitution’s text and a newer, nontextual argument advanced by supporters.

    A legal analysis of transfer demands begins with the Constitution itself, and the plain text of the Constitution speaks directly to transfer demand laws.  The Property Clause, Article IV, § 3, cl. 2, states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”  The text leaves little room for ambiguity over who may make decisions affecting United States land: Only Congress may initiate the sale or transfer of federal public lands.

  • January 29, 2015
    Guest Post

    by Eric Berger, Associate Professor of Law, University of Nebraska College of Law

    The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure.  Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations.  However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs.  To this extent, the Court is putting the cart before the horse.

    Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them.  The problem appears to be worsening as states increasingly conceal more details of their execution procedures.  Courts, for their part, usually reject inmates’ requests to learn this information. 

    In a recent law review article, I argue that these state practices and judicial responses are wrong.  To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure.  To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.

  • January 15, 2015
    Guest Post

    by Michael Leachman, Director of State Fiscal Research, Center on Budget and Policy Priorities, State Fiscal Policy Division

    As state legislative sessions begin, right-wing groups are ramping up a nationwide campaign to convene a constitutional convention to propose amendments that would strip the federal government of much of its power to invest in national priorities and protect civil rights.

    As respected legal voices in the states, ACS members can help defeat this campaign by educating policymakers and the public (through op-eds, testimony and the like) about its radical goals and misleading claims. 

    Here’s the background.  Under Article V of the Constitution, Congress must call a convention to propose constitutional amendments if two-thirds of the states formally request one.  In the late 1970s and early 1980s, many states passed resolutions calling for a convention to propose a federal balanced budget amendment.  At one point, 32 states had passed resolutions along these lines, close to the 34 states required.  But over the next 25 years, no more states passed resolutions and half of the states that had passed resolutions formally rescinded them, fearing that a convention would throw open the Constitution to harmful changes.

    The tide turned in 2010 as the American Legislative Exchange Council (ALEC) and its allies began pushing anew for state resolutions.  Since then, eight states have adopted new resolutions calling for a convention to propose a balanced budget amendment.  Some proponents claim that 24 states have “live” applications, including those passed in the late ‘70s and early ‘80s but never rescinded.  They’ve targeted another 15 states for the coming year.

  • January 13, 2014

    by Nicholas Alexiou

    The Supreme Court heard an atypically long oral argument this morning in National Labor Relations Board v. Noel Canning et al. The 90-minute argument (as opposed to the standard 60 minutes) focused on the Constitution’s Recess Appointments Clause which states that “[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

    Presidents have been making recess appointments since the founding; in fact President George Washington employed a recess appointment to name John Rutledge the Second Chief Justice of the United States, though his nomination was eventually defeated by the Senate. There has long been a political understanding which has governed recess appointments. In a recent ACS conference call, David Strauss, Gerald Ratner Distinguished Service Professor of Law and ACS National Board of Directors member, noted that, for example, since the administration of President James Monroe, it has been understood that a vacancy need not arise during a congressional recess in order for it to be filled via a recess appointment. However, this political consensus may soon collapse as the Court fully examines the clause for the first time.  

    The case before the Court deals with the validity of a 2012 National Labor Relations Board (NLRB) decision rendered by a panel made up of three members of the five-member Board.  President Obama had appointed two of the three members to the Board via a recess appointment. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed with Noel Canning (a division of the Noel Corporation) that the recess appointments to the NLRB were unconstitutional. During the recent ACS call, American Enterprise Institute Resident Scholar Norman J. Ornstein called the D.C. Circuit’s decision a “breathtaking exercise of judicial activism.” On appeal, three questions are before the Court: whether a president’s recess appointment power is limited to inter-session recesses, or if it extends to intra-session recesses; whether a recess appointment can fill any vacancy, or if it is limited to those vacancies, which arose during the recess; and whether recess appointments can take place when the Senate is meeting every three days in pro-forma sessions, a practice that has become increasingly frequent in recent years as partisan rancor has escalated.