The recent case before the Supreme Court on birthright citizenship points to a more fundamental constitutional crisis that has been called “post-constitutionalism.” We have reached the era in which the imperatives of the administrative state have replaced the formalism of the Constitution.
The ideological liberals who advocated this radical change contend that the Constitution has been replaced by the administration with the deliberate purpose of undermining the constitutional structures of limited government to magnify the power and extend the reach of administrative rule into every aspect of American life. They believe political decisions, based on election and ultimately the consent of the governed, have been replaced by decisions made by unelected bureaucrats — the “deep state” is real, and its creation was not haphazard.
However, the case before the Supreme Court on birthright citizenship is not as complicated as the court and the parties have made it out to be. The plain language of the 14th Amendment seems clear enough:
“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.”
It is clear that not all persons born within the geographical limits of the United States are automatically citizens. They must also be “subject to the jurisdiction,” thus establishing two requirements for citizenship. But what does it mean to be “subject to the jurisdiction”?
The principal supporters of the amendment were explicit: not owing allegiance to any other country, owing exclusive allegiance to the U.S. It is broadly agreed that the purpose of the 14th Amendment was to constitutionalize the Civil Rights Act of 1866, which was passed over the veto of then-President Andrew Johnson.
A supermajority of both chambers of Congress approved this act, which established the citizenship of newly freed slaves and the protection of their rights and liberties on the exact same basis as white citizens. Many in Congress initially argued that the passage of the 13th Amendment in 1865 granted citizenship and the rights and liberties attached to that status. Others argued that there should be explicit legislation, which resulted in the Civil Rights Act. Still, others thought the legislation was insufficient because future majorities could repeal it. This concern became the impetus for the 14th Amendment to “constitutionalize” the Civil Rights Act of 1866.
The citizenship clause was a late addition to the amendment. The first version merely stated that citizens were “persons born in the United States or naturalized by the laws thereof.” This language was referred to the Joint Committee on Reconstruction, which reported back the language that became the citizenship clause. It is evident that the Joint Committee placed importance on the “jurisdiction” clause, which meant, at a minimum, that not all persons born in the U.S. were automatically citizens. Former Michigan Sen. Jacob Howard, who was the manager of the amendment for the committee, said the change was “simply declaratory of what I regard as the law of the land already,” referring to the Civil Rights Act of 1866.
Former Illinois Sen. Lyman Trumbull, chairman of the powerful Senate Judiciary Committee and principal architect of the 13th Amendment and the Civil Rights Act of 1866, joined Howard in agreeing that the “law of the land” meant that “subject to the jurisdiction” connoted “complete jurisdiction,” not “owing allegiance to anyone else.” Under Section 5 of the 14th Amendment, Congress has the power to define “by appropriate legislate” who is subject to the jurisdiction of the U.S.
Much of the argument before the Supreme Court on May 13 did not reach the merits of President Donald Trump’s executive order to end birthright citizenship. The court seemed to be more interested in whether district court judges could issue universal restraining orders against the president or whether their orders were valid only in their districts. Trump has fairly complained that partisan “rogue” judges who oppose him politically have used universal, nationwide injunctions as political warfare against his administration. Since January, more than 40 have been issued, mostly by judges nominated by Democratic presidents, and mostly concerning Trump’s immigration enforcement efforts.
Solicitor General John Sauer argued before the Supreme Court, “Percolation of novel, sensitive constitutional issues is a merit of our system.”
What he intended to say is that these are political matters that should be decided by elections, not judges.
The Department of Justice did not ask the Supreme Court to decide the birthright citizenship matter because, as Sauer said, “a fast and furious” court decision would hinder the national political debate. Justice Clarence Thomas, a longtime critic of national injunctions, agreed, saying the U.S. had “survived” without them until their advent in the 1960s.
Congress has almost plenary power to regulate the jurisdiction of the district courts. Article III of the Constitution gives Congress the power to create “such inferior Courts” as it “may from time to time ordain and establish.” Necessarily included in the power to create inferior courts is the power to determine their jurisdiction. Congress can, at any time, withhold from any district court the power to issue nationwide injunctions or even to withhold the power to issue injunctions on matters of immigration altogether.
On May 13, 2005, District Court Judge Stephanie Haines issued a well-reasoned and exhaustively argued opinion supporting Trump’s order invoking the Alien Enemies Act in support of his proclamation of the invasion and predatory incursion of the U.S. by the Tren de Aragua gang.
Haines rightly noted that under the Alien Enemies Act, courts have a limited role in reviewing the decisions of the executive, relying on the authority of the 1947 case Ludecke v. Watkins. Former Justice Felix Frankfurter, writing for the majority, cited former Chief Justice John Marshall: “The act concerning alien enemies … confers on the president very great discretionary powers.” Frankfurter took a liberal view of executive power when it came to war powers: “A war power of the President [is] not subject to judicial review … ”
“The state of war may be terminated by treaty or legislation or presidential proclamation,” Frankfurter said. “Whatever the mode, its termination is a political act.”
In his conclusion, Frankfurter was clear: “The political branch of the Government has not brought the war with Germany to an end … it has proclaimed that ‘a state of war still exists’ … These are matters of political judgment for which judges have neither technical competence nor official responsibility.”
Some district courts are now issuing injunctions, arguing that actual war must be underway for the Alien Enemies Act to be invoked.
Haines was satisfied that the individual challenging his removal was deportable as a member of Tren de Aragua, but that he may not have been afforded proper notice for administrative appeal. She ultimately ordered a 14-day delay to allow him to organize an appeal. Prospects for this immigrant did not appear bright.
Expect another salvo to be launched from the front lines of lawfare. Deference to the executive branch on political questions regarding national security is surely not a part of this post-constitutional era.
Congress has the power to rewrite the Alien Enemies Act or modify the president’s political discretion that the act specifies, and court precedent has ratified. It is clear that courts, including the Supreme Court, are attempting to claim the political role of Congress.
Indeed, the Supreme Court issued a per curiam decision three days later, which further complicated the matter.
However, the court’s decision appeared to be limited: “We decide today only that the detainees are entitled to more notice … and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.”
Some notice, of course, is required by the Alien Enemies Act, but even here, presidential discretion is involved.
SUPREME COURT UNCERTAIN ABOUT SOLUTION TO NATIONWIDE INJUNCTION ‘EPIDEMIC’
In a dissent, joined by Thomas, Justice Samuel Alito vigorously defended Haines’s decision in the Tren de Aragua case. Haines’s case was complicated by an attempted “ex parte communication” on the part of the lawyers for AARP, which led to a delay of 14 hours and 28 minutes.
The judge’s actions were given the stamp of approval by the Court of Appeals, but not the Supreme Court. The court’s decision may not lead to anything of substance, but the fact that seven members of the court were willing to intervene in a case that seemed to require no intervention may forecast a future interpretation of the Alien Enemies Act that ventures on an attempt to curtail executive discretion in national security. Congress should act now to assert its proper political role and refuse to validate post-constitutionalism.
Edward J. Erler is a senior fellow at the Claremont Institute and the author of Prophetic Statesmanship: Harry V. Jaffa, Abraham Lincoln, and the Gettysburg Address.