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Death of Supreme Court Justice Antonin Scalia

The governor of Texas says:

Justice Antonin Scalia was a man of God, a patriot, and an unwavering defender of the written Constitution and the Rule of Law.

Vox News says:

Replacing Scalia with a liberal justice would tilt the balance of power on the Supreme Court in a significant way, giving liberals a majority for the first time in decades.

56 comments to Death of Supreme Court Justice Antonin Scalia

  • The truth, of course, is somewhere in the middle.

    Scalia was on the anti-free-speech side in Morse v. Frederick, the “Bong Hits 4 Jesus” case; and gave ridiculous deference to the cops in a whole slew of cases such as Heien v. North Carolina, the “ignorance of the law is an excuse if you’re the police” case.

    That having been said, the bigger cases likely to come before the court in the next term are I think the sort on which anybody Obama appoints would be an absolute disaster.

  • The Sanity Inspector

    Twitchy is going to be full of liberal vileness soon.

  • Alsadius

    Scalia wasn’t perfect, but he was probably the best defender of liberty on the Court all told. Plus, he was funny, and my friends who have met him say he was a kind man as well. We could do a lot worse, and probably soon will. (I’m just wondering how ugly the nomination fight will be…)

  • Laird

    Alsadius said it well. Obama has said that he will announce he nominee for the vacancy “in due time”, which almost certainly will be within the next month or so. That gives the Senate plenty of time to act on the nomination. That could indeed get ugly, and the really interesting question is whether (if the Senate declines to confirm the appointment, or even just delays the vote) Obama will attempt to make a recess appointment. That would be a truly divisive move, but hardly beyond the capacity of this, our most divisive president in decades.

  • Won’t Obama nominate himself?

  • Won’t Obama nominate himself?

    No, because a US President makes most of his money after he leaves office and Michelle wants to continue that good life well into the future.

    Supreme Court Justices are subject to severe restrictions on outside earnings, which would scupper Michelle’s dreams of future financial security.

  • Laird

    I doubt it, Tim. Being on the Supreme Court would be too much work for someone as lazy as Obama. Besides, he wouldn’t know where to begin: he’s never practiced law or even clerked for a judge. I wouldn’t be surprised to see him nominate Eric Holder, though. On paper Holder has all the right credentials: former federal judge, US Attorney and Attorney General, now in private practice with a prestigious Washington law firm. Of course, the small detail that he has been held in contempt of Congress should be disqualifying but won’t be, although he would never be confirmed. But he could wind up with a recess appointment, which would last until the end of the next session of Congress (January 2017), long enough to cause serious problems even if a Republican is elected President.

  • Lee Moore

    the really interesting question is whether (if the Senate declines to confirm the appointment, or even just delays the vote) Obama will attempt to make a recess appointment

    It’s not necessary. The four liberal justices never break ranks. So the worst Obama can ever do until a new justice is appointed is 4-4. And with a draw the ruling of the lower court prevails. Since Harry Reid’s removal of the filibuster on lower court appointments has allowed Obama to pack most of the Appeal court circuits, almost every case arriving at the Supreme Court will involve anti-Obama litigants trying to overturn pro-Obama rulings. A draw is a win.

    Obama’s best tactic would be to nominate a middle of the road liberal – by which I mean a standard Kagany type, not a red rag to a bull nomination like Holder, and watch the Rs vote him or her down, or filibuster. Then sit back and laugh while he wins all the cases. Then next year, even if the Rs win the Presidency and retain the Senate, the Ds can filibuster the R President’s nominee. So the Ds will control the court at least until 2019.

    But since Obama is in his final year, I think he’ll nominate Holder just by way of a middle finger gesture.

  • Chester Draws

    Obama will attempt to make a recess appointment. That would be a truly divisive move, but hardly beyond the capacity of this, our most divisive president in decades.

    Yeah, because Republicans would never do that! Except they have, of course, such as Bolton under Bush Jnr. Obama has way fewer recess appointments than other recent Presidents. He really is a “do nothing” guy.

    The “divisiveness” of Obama is now built into the US system. Until there is a breaker of some sort, every president will be divisive. You may not notice if they are on “your” side, of course.

    A Trump presidency would be divisive in ways that Obama couldn’t come close to.

  • AngryTory

    Obama’s best tactic would be to nominate a middle of the road liberal

    There’s no such thing as a middle of the road liberal. There will be no appointment until after the election.

    Then next year, even if the Rs win the Presidency and retain the Senate, the Ds can filibuster the R President’s nominee

    The R’s under either Trump or Cruz will read the constitution and burn the filibuster

    Obama will attempt to make a recess appointment. That would be a truly divisive move, but hardly beyond the capacity of this, our most divisive president in decades.

    If he does that he will be impeached immediately: the other Constitutional judges will announce that appointment is unconstitutional and refuse to recognise it. That’s the “good outcome” — the other possibility being open revolt, leading to effective martial law and the election being cancelled. Then I guess president-for-life Obama can just appoint Hitlery (or even vice versa) — appoint himself to the court, and the court declares Hitlery president.

  • AngryTory

    Worst of all: chances are the election will follow 2000 and go to the court…

  • Lee Moore

    The R’s under either Trump or Cruz will read the constitution and burn the filibuster

    You’d better hope they read the right bit ! The only relevance of the presidential election to the filibuster is the identity of the Vice President who gets a casting vote in the Senate. So if the Rs hang on to 50 Senate seats (minus 4 from now, but they’re likely to lose plenty, even if they win the Presidency as they’re defending all sorts of unlikely 2010 wins like Wisconsin, Pennsylvania, Illinois etc) they’ll “control” the Senate. But to get rid of the filibuster they have to get all 50 R Senators – if they have them – to vote in favour. And the RINO Senators aren’t going to go there. In reality they need to keep all 54 (at least) to cope with their nervous ninnies. And they’ll only get 54 if the Ds have a complete meltdown.

  • AngryTory

    The only relevance of the presidential election to the filibuster

    wrong: the ‘buster is unconstitutional, and with a GOP Senate, a GOP senate should be able to confirm whoever it likes – I’d pick Roy Moore, Ann Coulter, David Daleiden, Cliven Bundy for example. The Constitution says nothing about vacancies or the size of the court so a GOP Pres & Senate should nominate and confirm them all anyway.

    Then again: I’d prefer McConnel to have the Seajeant-at-Arms round up 20-odd libs, jail them, and then impeach both SCOTUS and POTUS and confirm their replacements…

  • QET

    Lee Moore is right about the 4-4 being a win for the Left. And if the GOP does not win the presidency then the delay will have been for naught. There is no telling how GOP recalcitrance on Obama’s nomination will affect the presidential election, not to mention House and Senate races. The media can be counted on to ignore Hillary’s e-mails, Obama’s foreign policy disasters and every other matter in favor of concentrating fire on the Court nomination and how horrible and awful the GOP is for preventing Obama’s will from realization. This could especially affect the youth vote, as not only do most of them have no idea who Robert Bork was and how the Democrats behaved, the media surely will suppress all reminders. The effect of 9 months of unrelenting, shrill, sky-is-falling media barrage on the GOP on this issue cannot be predicted, but at best it would not win them a single vote they don’t already have and at worst it would cost the GOP the presidency. Even the liberal media lately has been forced to report on Hillary’s e-mail criminality after months of pretending it was all a right-wing fantasy, and Scalia’s death is a gift from heaven to them if the GOP mismanages the nomination.

    So the best course for the GOP is probably to convey to Obama that it will approve a center-ish liberal nominee, approve said nominee, disarm the media of this weapon and then continue the drive for the presidency, with the intention of re-establishing the 5-4 balance when Ginsburg retires or passes (how much longer can she possibly hold on?).

  • Paul Marks

    Ted Cruz has been warning about the Supreme Court for a long time.

    Electing at Democrat – or a “Progressive Lite” Republican, would be the end.

    Not just of the United States – but of the Western World.

    “Libertarian Alliance” people please note – if the United States of America falls, the West can not stand.

    And the West includes the United Kingdom – which they keep calling “England” (for some demented reason of their own).

    The Constitution of the United States, including the Bill of Rights, has to be upheld – and that means upheld by the Supreme Court.

    And that means that there is a desperate need for Constitutionalist Justices.

    Only Ted Cruz can defeat Donald Trump – the lifelong Progressive Donald Trump.

    Which means that only Ted Cruz can save the Republic – that is just the way it is.

    Someone tell the cretins at “Fox News”.

  • mezzrow

    from Ross Douthat’s remarks at the NYT – sums my feelings up, really.

    As absurd as it often feels to have Anthony Kennedy as the last arbiter of everything, in a way we’ve been weirdly fortunate in the court’s long-running 5-4-with-a-swing-vote split. It’s allowed both halves of our polarized republic to feel somewhat represented on the highest court, to feel as if they have at least a fighting chance in the majority of controversies, to feel as if there’s some legitimacy — not a lot, maybe, but some — to the decisions of our unelected guardians. (As much as liberals may hate the Roberts court for Citizens United, it also gave them same-sex marriage and protected Obamacare; as much as conservatives object to Kennedy’s ruling in Obergefell, they’re grateful for his ruling in Hobby Lobby.)

    To have the intellectual godfather of the conservative bloc replaced by a liberal appointee would upset this balance, perhaps irrevocably. As it was for a time — and not a happy time — in the 1960s and 1970s, the court would simply become the Enemy to half the country, a vanguard force pulling the political order to the left.

    This reality trumps the patterns of (very modest) compromise that enabled Samuel Alito, John Roberts, Elena Kagan and Sonia Sotomayor to win confirmation, and it makes it impossible to imagine Republican senators confirming an Obama appointee in the next 11 months. And it’s probably a good thing for the republic that they won’t: If there is to be a liberal replacement for a figure as towering as Scalia, if the court is about to swing sharply to the left, it’s far better for the judicial branch’s legitimacy if that swing follows a democratic election, a campaign in which the high court stakes are front and center in the race.

    But because they will be front and center, Scalia’s death promises a war like none other between here and November, and an extra layer of insanity in a campaign already defined by radicals and demagogues.

    The irony is that this kind of high-stakes collision of law and politics is precisely the thing that Scalia’s legal philosophy strained to curb and check and roll back, by promoting a more limited and humble vision of the Supreme Court’s role in our republic.

    But for all of his importance, all his influence, in this effort he clearly failed — and what’s about to come will prove it.

  • PersonFromPorlock

    I never thought quite as much of Scalia as his eulogizers, because it seemed to me that when push came to shove, he favored administrative ‘necessity’ over the Constitution. But at least he nodded in the direction of the Constitution now and then.

    Obama’s nominee will probably be black, female, preferably Muslim and preferably lesbian. Not to be confirmed, but to cause the Republicans as much trouble as possible with the MSM in an election year, and to whip up the Democratic party base.

    I exaggerate, but not by much.

    And who knows? The Republican senate may run (le mot juste) true to form and confirm her.

  • Mr Ed

    In a surprise, valedictory show of Constitutional propriety, the POTUS sent to the Senate, for the SCOTUS, Judge Andrew Napolitano.

    And then he sang ‘…And I’m proud to be an American, where at least I know I’m free’.

    Damn, it was a dream…

  • Laird

    AngryTory, you have a strange understanding of the Constitution (have you ever actually read it?). There’s nothing “unconstitutional” about filibusters; the only thing remotely on point is the statement that “[e]ach House may determine the Rules of its Proceedings”, which is no bar to what is, in fact, a very old rule. Recess appointments are specifically permitted (see Article 2, Section 2, Clause 3). Clearly that would provide no basis for an impeachment (as if our Congress would do that anyway, after 7 years of Obama’s extra-constitutional escapades), and the other justices would most certainly respect it (recess appointments to the Supreme Court have happened before). And while you are correct that the Constitution does not specify the size of the Court, its size is fixed by statute which would have to be amended before any more than 9 justices could be appointed, and I find the prospect of that to be highly unlikely, even under a Republican president and with a Republican-controlled Congress.

  • If the Senate consents to an Obama nomination, every single Republican senator who voted yea will be voted out of office in the next election — especially those who come from conservative states like Texas. You heard it here first.

    As for the 4-4 situation: as many conservative lower court decisions come before the SC as liberal ones, so I’d take my chances.

    Replacing Scalia’s intellectual rigor on the Court will be extremely difficult, let alone his conservative, pro-Constitutional position. (As one wag put it: whoever wants to win the presidential election need only say that his first act as President will be to nominate Ted Cruz to the SC.)

    Obama dare not risk a recess appointment to the SC. The result might help his liberal cause in the short term, but the next president will most likely have to replace three or even four SC judges — and the precedent having been established, four conservative recess appointments would make the SC a profoundly conservative court for the next quarter century.

    All this, of course, presupposes actual logic and commonsense on the part of all the actors in this little drama — not a situation I’d place a bet on.

  • Greg

    Laird and others, I think AngryTory might be, well, angry. So am I.

    And while I appreciate a good argument as much as the next man, often more is needed.

  • RRS

    Lord, what speculators these mortals be.

  • Oh, and one other thing. Recess appointments (for any office, not just the SC) are only valid for the remainder of the Congressional term — in this case, until 2 Jan 2017, at which time the judge would have to resign and be replaced by the new President anyway.

  • Laird

    @ Kim: “As for the 4-4 situation: as many conservative lower court decisions come before the SC as liberal ones, so I’d take my chances.”

    Agreed.

  • mojo

    Especially since the SC can’t just decide to issue a judgement – there has to be a pleading, a lower court disagreement, something. Hard to arrange on short notice, but 9-10 months might be enough. Depends whats already in the queue I’d say.

  • Nicholas (Excentrality!) Gray

    Seems a shame there isn’t a vice-judge already in the sidelines! That could be the next amendment, so the process is automatic. Would that work?

  • AngryTory

    “As for the 4-4 situation: as many conservative lower court decisions come before the SC as liberal ones, so I’d take my chances.”

    only because of the current makeup of the court: unconstitutionally communist but not quite abandoned the republic yet. Even 4-4 will just encourage the liberals to push more unconstitutional judgements like gay marriage, obamacare, obamnesty, or going further back, the new deal, SS & Welfare.

    Which is why a solid constitutional majority on the court is crucial – and if we need 2nd Amendment impeachment then so be it

  • AngryTory

    There’s nothing “unconstitutional” about filibusters

    Of course there is! The constitution is clear that a 2/3rds vote is required to expel or convict upon impeachment: general business can only require a bare majority. It would be perfectly constitutional for the Senate to suspend 30 DRATS for treason, and then impeach them with the resulting 2/3rds majority. On the other hand requiring more than a bare majority for progress is unconstitutional.

    that would provide no basis for an impeachment

    The House is the sole judge – they can Impeach Obama for being a DRAT if they want, as well as for being a Traitor.

    its size is fixed by statute which would have to be amended before any more than 9 justices could be appointed

    If the senate appoints a justice, they are appointed, that counts as a legislative act – which would then be interpreted by the Court — which is why we need a Conservative, Constitutional Court who will interpret the Constitution as it was intended, especially including the guarantee clause of Republican (not D’RAT) government, and the 10th Amendment.

    , and I find the prospect of that to be highly unlikely, even under a Republican president and with a Republican-controlled Congress.

  • Mr Ed

    AngryTory,

    Laird is perfectly right. The Constitution establishes the Senate and the House, but they were and are, as with the then British Parliament’s respective Houses, masters of their own internal affairs, and the Constitution is, if you like, a ‘reset’ of Magna Carta.

    It provides a check on the Common Law powers of the Congress and the Executive, the Monarch being replaced by an Unholy Trinity of judicial, legislative and executive powers. With, it turns out, the Supreme Court taking on a mantle approaching a Collegiate Papacy, with an infallible majority, an appointment for life, held on to by many until the Grim Reaper calls.

  • PeterT

    Paul, I am afraid that at the moment a Trump candidacy seems almost inevitable. If Cruz does win, then chances are pretty good that Trump will run as an independent (maybe with Webb as VP – if he runs as a Republican Ben Carson is almost guaranteed a VP candidate), which will virtually guarantee a Clinton presidency.

  • Laird

    “If the senate appoints a justice . . . “

    But the Senate doesn’t appoint justices, the President does. The Senate merely concurs.

    The House certainly can impeach Obama or any other civil officers (although only for “Treason, Bribery, or other high Crimes and Misdemeanors”, a difficult standard to meet), but conviction is only by the Senate, which would not happen.

    It’s pointless to try to carry on a rational debate with someone who appears to lack basic reading comprehension skills. I’m done with this.

  • Mr Ed

    It’s pointless to try to carry on a rational debate with someone who appears to lack basic reading comprehension skills. I’m done with this.

    Welcome to Samizdata!

  • AngryTory

    But the Senate doesn’t appoint justices, the President does. The Senate merely concurs.

    Or not. In practice the president nominates a justice: he must nominate a justice that the senate will appoint.

    (although only for “Treason, Bribery, or other high Crimes and Misdemeanors”, a difficult standard to meet)

    No, once again: the The House is the sole judge of those standards; the senate is the sole judge of whether those standards have been breached. For Obama the case is clear.

  • Julie near Chicago

    Laird, and RRS, I have been wondering for years whether “high” is intended to modify both “crimes” and “misdemeanors,” giving “high crimes and [high/ultra-serious] misdemeanors,” or whether it applies only to “misdemeanors”: “high crimes, [or even mere misdemeanors].” If the first, what’s an example of a “high misdemeanor” warrenting impeachment? Actually, once this occurred to me, it’s seemed to me that the second reading is much the more natural and likely one.

    Enlightenment please?

  • Julie near Chicago

    “Warranting….: 🙁

  • Mr Ed

    AngryTory

    he (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States,

    Got it? You are wrong, wrong, wrong, wrong, wrong, wrong, wrong.

    Yes, wrong.

    You could not be more wrong, that’s how wrong you are. There is nothing more to be said, except that you are wrong (on this point).

  • Laird

    Julie, “high crimes and misdemeanors” is a term of art. It is one of those phrases* which was well understood (by those learned in the law) at the time the Constitution was written but which sounds strange to modern ears. It derives from Anglo-Saxon legal principles dating back at least to the 14th century. What it refers to are not “crimes” in the sense of normal criminal law, but rather transgressions which are uniquely possible for those holding high political office. Basically, what it means is abuse of power, which can take forms as varied as the failure to prosecute, appointing unqualified subordinates, granting illegitimate warrants, etc.; the specifics of the offense are peculiar to the office held. Since many of these offenses are not “crimes” in the conventional sense the only permissible penalty following impeachment and conviction** is removal from office (i.e., forfeiture of the power which was abused); see Article I, Section 3 of the Constitution. Of course, if the offense is also criminal in nature (such as bribery) one can subsequently be tried in a criminal court, with all the protections that affords (the evidentiary rules and standards of proof are much lower in an impeachment proceeding).

    Does this help?

    * Another being “natural born citizen”.

    ** Remember, “impeachment” is merely the charge; conviction is a separate matter. Clinton was impeached but not convicted.

  • Mr Ed

    Laird,

    How about a Constitutional Convention to ‘future-proof’ the text? i.e. re-write it to say ‘No f**ing way do you have a Department dealing with Education’ etc.?

  • Laird

    [Sidebar to Mr Ed: “Welcome to Samizdata!” Don’t I know it!? I’ve been around these parts a long time.]

  • Laird

    ” ‘future-proof’ the text?” Good luck with that. You know as well as anyone just how creative lawyers can be when it comes to twisting words around.

    Mere words won’t work, at least not permanently. (Paul Marks is always harping on about this.) The only way I can see of keeping the federal government in check is to give the states the explicit power to overrule it. We have “separation of powers” in a horizontal sense (among the three supposedly co-equal* branches); what is needed is one in a vertical sense as well (between different levels of government). Since the states originally created the federal government, under standard principles of agency law as principal they should retain the power to remove at will any authority granted to their “agent”. Remember, the federal government possesses only “enumerated” powers; the states have plenary authority. They should reclaim it.

    * They’re really not supposed to be “co-equal”, but that’s another discussion.

  • AngryTory

    Mr Ed: idiot.

    he (the President) shall nominate,

    that’s a substantive act. He nominates, even if he is ineligible to hold that position under the original, Constitution, which he most certainly is.

    Consent of the Senate

    The sent Consents. Or not.

    shall appoint

    whoop de do. just like the Royal Assent, El Pres signs the papers. The president nominates. the Senate decides. Just like in impeachment: the house nominates, the Senate decides. And in these matters that House and Senate are sovereign judges of fact and law: they can do whatever the f**k they like and there is no appeal possible. In particular, both the House and Senate can execute their own members for Treason without further recourse; the Senate can imprison anyone for the length of their term. The reason why the founders established these provisions should be obvious, especially today: before we decry the Constitution we should ask why those provisions have not been used!

  • Julie near Chicago

    Laird, thank you, I got it. That, of course, is the way I always sort of took it, but being me I always like to have the technicalities well in hand, and it’s been bugging me. (And, yes, I do understand that impeachment is one thing and conviction is another. Also, I hope I am correct that impeachment, of the President at least, is a function of the House, whereas trial and conviction occurs in the Senate.)

    As for “natural born,” I think we’re in agreement, tentatively. Of course, I wish people would remember that 1795 specifically in so many words repealed 1790 (the citizenship statutes of those dates), thus taking statutory “natural born” citizenship out of play altogether, and I also wish that people including T.C. and R.B. would have a look at the Immigration and Nationality Act of 1952, which by my reading specifically makes T.C. not a citizen; unless somebody can tell me what is a U.S. national as opposed to a U.S. citizen, and whether, in that case, papa was for some reason a “U.S. national.” A shouldn’t think being here for a year as a student would do it, but for all I know….

    But that is why I wondered whether “natural born citizen” must be understood as a unitary term (so to speak), rather than as two separate adjectives modifying the noun: an “ugly mod fabric.” If you remember your ’70’s décor. :>(( Because in that case, one must entertain the possibility that there could be a natural born citizen who is, nonetheless, not a citizen proper in any legal sense. –Not that I think that’s the case; not that I argue for it; just that the possibility occurs to me, and again, being me, I would like to know one way or the other.

  • Julie near Chicago

    Sorry, Laird. I should have re-read the discussion before I commented. Yes, the House impeaches; the Senate convicts. That’s always been my understanding. :>)

  • AngryTory

    could be a natural born citizen who is, nonetheless, not a citizen proper in any legal sense

    presumably a natural born citizen could give up or lose their citizenship (e.g by naturalising in another country).
    At which point they are no longer legally a citizen, probably no longer eligible to be president under statute law, but Constitutionally would still be a “natural born citizen”.

    Perhaps the Senate could break the deadlock by sending O.b.K a list of a few names and invite him to nominate off that list: Roy Moore, Anne Coulter, Priscilla Owen, Janice Brown, William Pryor. Just a pity that Phyllis Schlafly is probably too past it.

  • Julie near Chicago

    No, the question includes your hypothetical. If a “natural born citizen” as intended by the Constitution is not in fact necessarily a citizen, then giving up citizenship in any of its usual meanings doesn’t matter.

    But if a natural born citizen is a citizen who is “natural born” as such, then giving up his citizenship would make him ineligible.

    The question of dual citizenship is very unclear, I think. The idea was that the natural born citizen would have no ties of either nativity (“I was born here!”) or alliegance to the given nation, or its sovereign. That was precisely the condition the Founders and Framers were at extra pains to avoid. But today any U.S. citizen can have dual citizenship; however, a natural born citizen would, I should think, properly give up his eligibility as a natural born citizen if he were a dual citizen (when? At birth? Or later? What if he would otherwise be natural born, but has dual citizenship which he gives up as did Ted Cruz?)

    . . .

    I maintain that you cannot have a workable set of laws, or a Constitution, that is highly and strictly detailed. The more precise you are about can’s and can’ts, musts and mustn’ts, the more there are situations that fall “in the cracks” between what is prohibited and what is mandatory, and being wedded to the Specification of Everything, you must try to fill in every crack, which cannot be done. It’s like trying to clutch a handful of wet mud firmly in your paw — the tighter you clench your fist around it, the more you exert pressure on the mud that causes it to ooze out between your fingers.

    I am well acquainted with this phenomenon, having made a career of making mud pies when I was in the 4-7 age range, and of pie dough for edible people-pies as an adult.

  • Julie near Chicago

    I should clarify that a bit. It seems to me that there is a somewhat “sweet spot” between underspecificity and overspecificity in legal codes that are both reasonable and practical.

  • Laird

    Julie, that is precisely the point made by Bayless Manning in his delightful article “Hyperlexis and the Law of Conservation of Ambiguity”. (That article is out of print and almost impossible to find on-line, so I have kindly posted a copy in my Dropbox file which can be accessed here. You’re welcome.)

  • AngryTory

    a natural born citizen would, I should think, properly give up his eligibility as a natural born citizen if he were a dual citizen (when? At birth?

    if you get some other citizenship at birth, you can’t be a natural born citizen of the US, probably anywhere else.
    So you’re a dual citizen, but not a naturl born citizen anywhere.

    Or later? What if he would otherwise be natural born, but has dual citizenship which he gives up as did Ted Cruz?)

    then he’s just a dual citizen, if that’s allowed by both countries.

  • All the Ted Cruz arguments (is he or isn’t he eligible?) are pointless. He’s been certified as a valid POTUS candidate by every state’s Board of Elections, following on from the Illinois Board’s decision that Cruz has never been required to be naturalized — ergo, he is a bona fide natural-born citizen.

    That’s the law, it’s an inarguable decision, and all the rest is just wind, pontificating and hypothesizing. To overturn this decision, you would have to prove that Cruz DID undergo the naturalization process, and he never has. Post facto nullification of his birthright citizenship and eligibility cannot be enforced under existing U.S. law, UNLESS he has acted as a foreign citizen (e.g. voted in Canadian elections, enlisted in the Mexican military, etc). Outside the latter, it’s a moot point.

  • AngryTory

    That’s the law, it’s an inarguable decision,

    Wrong. The supremes can and will decide: and without Scalia, they will deal so the GOP cannot nominate anyone else, then decide he is ineligible, and throw the presidency to Hitlery or Bezerkey.

  • AngryTory, I’m trying to decide whether you deliberately missed my point, or whether you’re just drunk. The only way Cruz’s eligibility can be challenged is by one of the states’ Board of Elections — nobody else, not even a state legislature, has “standing” to do so — and as all the state BoEs have certified Cruz, it’s a non-issue. There is no other way, and there is absolutely no way that any such challenge from another agency or group could reach the Supreme Court, as you seem to suppose.

    I repeat: the ONLY way Cruz’s eligibility could be challenged is that after Illinois’ Board of Elections certified him (on the grounds of non-naturalization), another state BoE could have challenged or refuted that certification by proving that Cruz had been naturalized — and no such proof exists. No other entity has standing to challenge certification; not the Republican Party, not the Democrats, not the NRA, not Planned Parenthood or Mothers Against Drunk Driving. Not even Congress, the Supreme Court or the Executive can challenge certification.

    In case you’re wondering why I’m so adamant on this topic: it’s that we had PRECISELY this scenario back in 2008, with Obama’s mysterious country of birth. Ultimately, all the opposition to Obama as a “foreigner” collapsed when the Boards of Elections (unanimously) said that Obama had never had to undertake a naturalization hearing, ergo he was a natural-born citizen and therefore eligible to run for the office of POTUS.

  • Julie near Chicago

    First, a mea culpa and an important one.

    Re-reading the 1952 Act, Section 301, I see that I overlooked subsection (g), which states that a person not born in the U.S., one of whose parents was an alien and the other was a U.S. citizen (at the time of the person’s birth, I assume) “was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years…” is a citizen.

    Ted Cruz does fulfill this requirement, assuming that his mother didn’t give up her citizenship prior to his birth and also that she met the residency requirement.

    . . .

    Kim, I’m afraid your first paragraph ends with a non sequitur. :>(

    What the Illinois Board of Elections has to say is irrelevant. If, as you say, all the other States have followed along like pet spaniels on Illinois’ lead, their opinions are still irrelevant to the issue of Constitutional eligibility.

    The states certainly are not in a position to determine the Constitutional meaning of “natural born citizen,” and therefore are not in a position to resolve eligibility questions that arise pursuant thereto. In the current State of the Nation, only the Supreme Court has the authority to hand down a binding Opinion on the meaning of the requirement; and a candidate’s eligibility is controlled by that meaning (plus the age and residency requirements).

    The most any state can do is to say that it is satisfied. It can, I suppose, even enact a statute stating what its own requirements for eligibility will be, and require that these be met if a candidate is to be placed on the ballot. But that has no legal bearing on the Constitutional issue.

    This time, perhaps all the states agree. But what if there comes a time when the states do NOT agree on a candidate’s eligibility? What will be the guiding principle then?

    It is most certainly NOT, therefore, the case that

    “That’s the law, it’s an inarguable decision….”

    . . .

    If we do not fight for upholding the principles of our Constitution, if we concede that “what’s done is done so that’s all right then” when political actions aren’t legitimate according to the Constitution, then we are playing “anything goes” and we might just as well admit that we have, indeed, allowed ourselves to submit to arbitrary law.

    The issue is important to anyone who thinks the Constitution is the fundamental rule-book of our system, is the foundation of our entire political project, and is thus pre-eminently important.

    And Ted Cruz is running as THE Original-Constitutionalist candidate, now that Rand Paul has dropped out.

    He cannot live up to this status if he is aware of the ambiguities of his position. Furthermore, if he’s as knowledgeable about the Constitution as he claims and as his supporters believe, and if he has intellectual pride enough to look into the matter at all, he can be expected to know of the 1795 citizenship act (I forget its actual title), which specifically repeals that of 1790, which is the one a lot of people quote when they don’t like having to think too hard about the matter, or they quit investigating five years too soon.

    It goes to either his integrity (intellectual and behavioral honesty) or his knowledgeability, or both; and either way, to the degree of credence one gives to his statements about important matters such as the TPA and TPP.

    So far I excuse it on the grounds that such shining lights as Randy Barnett and the other Legal Lights at Volokh* think he’s legitimately eligible, so at least whatever errors of interpretation may or may not exist there, people having less of a dog in the fight** and at least some reputation of credibility among libertarians do support the same conclusion. So, sez I to myself, maybe he really honestly does believe it.

    *According to R.B. — and E. Volokh did a posting himself pro-Cruz-eligibility.
    **Barnett said he was an advisor to Rand Paul’s campaign, not to Cruz’s.

    That is why we continue to discuss it. Not only with regard to Sen. Cruz, although he’s the reason for the immediate concern, but also concerning Obama and both his opponents, one of whom (Caldero) was a Nicarguan who hadn’t, I think, even any claim to U.S. citizenship, yet was on the ballot, and George Romney (though 1968 is distinctly rear-view-mirror territory), and of course both Rubio and Jindal.

  • Julie near Chicago

    Laird, that’s a terrific paper by Bradley Manning. Short, entertaining, and makes its point beautifully.

    Unfortunately, even among non-lawyers there are those of us who want every i dotted, every t crossed, and who sometimes end up crossing the i‘s and dotting the t‘s, or doing both to both. The result tends to be rightly called an Unmitigated Mess.

    It also seems to me, as a layman, that his conclusion about both the etiology and course of prolixity and the results it has on our own legal system and on the nature of our society (namely, tending to foster in us a diminution of our respect for the law) are quite right.

    So thank you, much appreciated. 🙂

  • Rich Rostrom

    1) Because birth citizenship may be granted in two ways (jus loci and jus sanguinis) a person may be born with nominal citizenship in two or even three nations. These conflicting nominal citizenships do not affect one another unless formally claimed.

    2) “of course both Rubio and Jindal”? Rubio was born in Miami; Jindal was born in Baton Rouge. Rubio’s parents were naturalized after he was born; Jindal’s parents immigrated six months before he was born, so it is unlikely they were then naturalized, if they ever were.

    However, that is irrelevant. The claim that the child of immigrants not yet naturalized is not a “natural-born citizen” has been made before: against Republican candidate Charles Evans Hughes in 1916. (A St. Louis lawyer published the claim in the Chicago Law Journal.) No one paid it much heed. It shouldn’t get any more attention now.

  • Julie near Chicago

    I disagree entirely, Rich. In the first place, this has come up even before Charles Evans Hughes. It came up with Chester A. Arthur. Apparently a few people recognized the difficulty at the time, but it was hushed up. However, there’s evidence that in fact Mr. Arthur’s father was a Canadian, but not an American, citizen at the time. If I remember, he wasn’t naturalized until Chester was somewhere in his teens. A few people also questioned George Romney’s eligibility in 1968, but his campaign died before the public was aware of the circumstances.

    It’s nice that you’re happy if the “natural born citizen” description applies to a citizen who at birth meets just one, it matters not which, of the two criteria; not everyone agrees with you, and that does include Constitutional scholars in the legal professoriate. It even includes Prof. Laurence Tribe, who is not an entirely unknown attorney and professor, and is certainly not “right-wing.” He may be a loon, but if so it’s because he’s a librul and a Living Constitutionalist, not because he’s in any way fringe-y, if you see what I mean.

    As several Samizdatistas have stated, either here or in prior discussions, only the Supreme Court has the power to give a binding definition of the term. In theory, what you or I may think matters not at all, except insofar as the Court is composed of human beings and its members are, therefore, influenced for a variety of reasons by what they think the public wants. Would that they were the impartial angels of complete historical knowledge and perfect wisdom that we imagine they are supposed to be.