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November 19, 2018

How Professor Imwinkelried and I 'reversed' 28 50-year-old convictions last week

By Gabriel J. Chin

Often, the most essential part of lawyering is not brilliant legal analysis, factual investigation, or even winning the case.  Instead, the outcome turns on mundane details such as, say, collecting a judgment, or getting your client out on bail. That lesson was vividly driven home for me last week when I was reading Knight v. State, 161 So.2d 521 (Miss. 1964), a unanimous affirmance by the Mississippi Supreme Court of Freedom Rider Edythe Pauline Knight’s conviction for disturbing the peace after she had been ordered out of the “whites only” section of the Jackson, Mississippi bus terminal.  Based on its clean history on Westlaw, I’ve cited the decision a number of times in my scholarship, in part because of the court’s finding that for many, belief in segregation is “as deep or deeper than religion itself.” But I chanced to browse some other decisions citing the case, and noticed that Justice Douglas in his dissent in City of Greenwood, Mississippi v. Peacock, 384 U.S. 808 (1966), said that Knight had been reversed in Thomas v. Mississippi, 380 U.S. 524 (1965). 

The opinion in Thomas, a per curiam reversal, does not itself mention Knight; the text claims to reverse only Thomas’s case.  But Mabie Law Library reference librarians Peg Durkin and Kristin Brandt obtained the Supreme Court papers in Thomas and, lo and behold, the certiorari petition in Thomas was filed on behalf of Thomas, Knight and 27 other individuals, each convicted in separate cases. 28 cases shown as good law had actually been reversed, but that fact slipped through the cracks of the legal system.

I raised this issue with Professor Ed Inwinkelried, who is technically retired but seems to come to the office every day. As the author of many books and treatises, I suspected he would have contacts with Westlaw. Indeed he did, and when he brought it to the attention of the right editor, Westlaw immediately updated the status of all of the cases. Over fifty years after the fact, Knight and 27 companion cases are now shown as reversed by Thomas, including the conviction of Congress of Racial Equality founder James L. Farmer, who would later receive the Presidential Medal of Freedom.

Of course, these 28 individuals knew their convictions had been reversed in 1965, and now the historical record has been corrected. But there are still consequences. Not just scholars, but also courts and other authorities treated these decisions as valid. As high court decisions, they were influential, and have been cited by other Mississippi courts and administrative authorities, such as attorney general opinions. It would be very difficult to determine the impact of these cases on the development of the law, but is nearly certain that they would not have been cited if it had been clear that they had been reversed.

 

February 17, 2016

The Missing Discussion of Race and Xenophobia in the Ted Cruz Citizenship Controversy

Cross-posted from PrawfsBlawg.

The debate about Ted Cruz's eligiblility to the presidency, whether he is a natural born citizen (NBC), shows no sign of abatement or conclusive resolution. Eric Posner, Einer Elhauge, Robert Clinton, and Sol Wachtler voted nay, Jack Balkin and Laurence Tribe debated the issue at Harvard, Akhil Amar supports Senator Cruz's eligibility here and here. Former university president Donald Trump has threatened a lawsuit; according to his website, Ted Cruz is eligible. And in a free country, he should be.

Nevertheless, irony abounds, as Professor Tribe wrote, because Senator Cruz is an originalist, but the best arguments for his eligibility are based on progressive readings of the Constitution and US law.  There is another level of irony not yet considered.  Cruz's immigration policy is punitive and harsh, and has introduced what seems to be a patently unconstitutional law to expatriate U.S. citizens. The joke is that historical discrimination embodied in US immigration and naturalization law, of a type that he apparently hopes to revive, make his case for natural born citizenship a heavy lift.

Michael Ramsey, an important and influential scholar on the topic, recently updated his paper about British practices, which argues that "the Framers conveyed to Congress, through the naturalization clause, the power to define 'natural' birth."  While there is wide agreement that the question is difficult, the paper has persuaded me and, for example, Akhil Amar and Jack Balkin.

Critically, the paper reserves the question of whether Congress actually exercised this power to benefit Senator Cruz. (p. 37, n.138) Evaluation of that question requires recognizing the racism, sexism, and xenophobia dominating U.S. citizenship (and immigration) law from the founding until the civil rights revolution.  For example, the naturalization acts of 1790 and 1795 restricted naturalization to "free white persons," a qualification in effect for more than a century and a half.  Reading the relevant legal materials in light of these traditions raises doubt that Congress granted natural born status to people in Ted Cruz's situation.

Here is the problem. Congress only once purported to grant NBC status to foreign-born children of U.S. citizens, in the Naturalization Act of 1790. In the Naturalization Act of 1795 and every subsequent citizenship law, including the Fourteenth Amendment, Congress never mentioned "natural born." Congress grants only citizenship.  Many commentators contend that these acts are critical.  The 1790 Act shows that Congress intended to grant foreign-born children of U.S. citizens natural born status (and had the power to do so, given that many members of the first Congress were Framers of the Constitution.)   The 1795 Act shows that Congress intended to grant NBC status even without using the words "natural born", and, by implication, has done so ever since. 

Professor Ramsey's paper finds the legislative history of the 1795 Act inconclusive regarding the import of the elimination of natural-born status, and that the 1795 law's main effect was to extend the period of U.S. residence required for naturalization. (9-10) I read the 1795 Act as much more restrictive.  In addition to lengthening the residence requirement, the 1795 law: (1) established a monitoring regime by creating the longstanding requirement of filing a declaration of intention to become a citizen; (2) strengthened the required oath, requiring, in addition to supporting the Constitution, that the person "absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever"; (3) required renunciation of any hereditary titles; and (4) excluded from naturalization those convicted of having joined the army of Great Britain during the Revolutionary War.  The 1795 Act unquestionably reflects greater suspicion of noncitizens than its predecessor; perhaps it was a step toward the Alien and Sedition Acts a few years later. 

The 1795 Act's most critical change linked the kind of citizenship granted to foreign-born children of U.S. citizens to that granted foreign-born children of naturalized citizens.  When their parents naturalized, the 1790 Act had made noncitizen children under 21 "citizens of the United States."  In a separate provision, the 1790 Act made children of US citizen parents born overseas "natural born citizens."  The 1795 Act merged the two provisions. The combined provision made children in both categories "citizens of the United States." Thus, in 1795 Congress did not merely eliminate the words "natural born citizen;" it apparently intended two formerly distinct groups to be treated identically.  It is unlikely that Congress used "citizen" synonymously with "natural born citizen." That is, presumably, Congress did not mean to grant noncitizens presidential eligibility if they became citizens as teenagers upon their parents' naturalization. 

Under the circumstances, it seems fair to apply the canon that "change of language strongly implies an intent to change the object of legislation," United States v. Fisher, 6 U.S. 358, 388 (1805) (Marshall, C.J.), and therefore to conclude that the 1795 Act reflects the decision of Congress not to grant natural born status to overseas-born children of U.S. citizens.  That many in Congress in 1795 were Framers is as important as it was with the 1790 Act: It is impossible that the significance of voting to eliminate the words "natural born" was lost on James Madison and other drafters of the Constitution. I am aware of no indication in text or legislative history that Congress in any later naturalization or citizenship legislation desired to grant "natural born" status to any children born out of the United States.  (I assume that in recent decades Congress has given the issue little thought.)

There is another curve-ball.  Congress sometimes declares noncitizen adults, retroactively, to have been citizens "at birth."  For example, in 1994, Congress enacted 8 USC 1401(h), granting citizenship and nationality "at birth" to people born overseas to U.S. citizen mothers before the date in 1934 when female U.S. citizens were granted equal rights to transmit citizenship to their children.  Congress can at its pleasure grant retroactive citizenship for many purposes (such as to make the new citizen's existing children, retroactively, U.S. citizens "at birth"), but it seems doubtful that Congress can make NBCs out of people who were not citizens at all when born.  If so, then it cannot be assumed automatically that Congress intends to exercise its NBC power every time it grants citizenship "at birth"; perhaps Congress simply wants the beneficiaries, in law, never to have been "aliens" or has some other motive.

Senator Cruz's citizenship did not rest on the long-superseded 1795 Act; the applicable provision (Section 301(a)(7) & (b) of the 1952 Immigration Act) was written in the 1930s. But that also was the era of the "white America" naturalization policy.  As discussed before, Congress granted people with one US citizen parent only conditional citizenship, which automatically expired unless specific steps were taken to retain it. The retention requirement was imposed because of the potentially questionable loyalty of a person with only one US citizen parent, born in a foreign land. 

Applying "strict construction" and "neutral principles" to the words enacted by Congress, Senator Cruz may be in trouble. To conclude that he is an NBC requires, first, acceptance of Professor Ramsey's compelling but controversial theory about the breadth of congressional power under the naturalization clause. Next, it requires the assumption that Congress sub silentio intended to grant natural born status, when their last word on the subject was directly to the contrary. Third, it requires the assumption that by citizenship "at birth" Congress always means "natural born citizenship," when the 1994 amendment, I believe the most recent, makes clear that is not the case. Finally, it requires an assumption that Congress intended to grant presidential eligibility to a class that it distrusted to the point that it made their citizenship temporary.

Again, Senator Cruz should be eligible; the natural born citizen clause is confusing and illiberal. The cleanest resolution would be constitutional amendment; next best would be a statute not about Cruz as an individual but declaring that all citizens at birth are natural born. For whatever reason, both seem nonstarters. But there are other routes, based on progressive readings of the law, or originalism rooted in the Reconstruction Amendments.

On the principle that amendments can impliedly repeal earlier, inconsistent constitutional provisions, perhaps the NBC clause did not survive enactment of the Fourteenth Amendment. The Fourteenth Amendment itself, notably, makes no "natural born citizens," those born in the U.S. are merely citizens, yet this is the only provision for citizenship in the Constitution. The Framers of the Fourteenth Amendment must have contemplated that those born in the United States would be eligible to the presidency, yet it made them mere citizens. Perhaps this should be read as a determination that citizenship at birth suffices.

Alternatively, perhaps on the theory that acts of Congress and jurisprudence created in a pre-modern era should be eyed suspiciously, the broad immigration and naturalization powers recognized in Congress should be subject to far more searching judicial review. On that principle, it might be that, contrary to current doctrine, Congress may not make citizenship contingent. Indeed, perhaps Senator Cruz is a natural born citizen because, again contrary to current law, Congress must grant unconditional natural born citizenship to children of U.S. citizens born overseas.

Finally, relying on the democracy canon, Rick HasenSandy Levinson, Akhil Amar and others propose that there should be a heavy thumb on the scale on the side of finding Senator Cruz eligible. 

Any of these, or others, might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate.

January 20, 2016

United States v. Texas: Mountain or Molehill?

Cross-posted from ACSblog.

The Supreme Court granted certiorari this week in United States v. Texas; the case will undoubtedly be one of the term’s most interesting, important, or both. In a 2-1 decision, the Fifth Circuit invalidated the Obama Administration’s DAPA program making “deferred action” available to as many as four million unauthorized migrants who are parents of U.S. citizens or green card holders. Deferred action represents a formal decision by the government to exercise prosecutorial discretion not to initiate deportation proceedings; it creates neither a right to remain nor a path to permanent status. However, by regulation, the government may grant work authorization to holders of deferred action.

The Court will review several critical questions.

The merits issues are whether the administration had the power to establish the program, and if it did, whether it should have gone through formal notice and comment under the Administrative Procedure Act. As Congress does not appropriate enough money to completely enforce the immigration laws (or any other laws, for that matter) there is no question that prosecutorial discretion, for better or for worse, is inevitable. There is also little doubt that even in the government, bosses are allowed to give direction to subordinates about how programs are to be carried out.

The line between permissible “guidance” and formal, binding enforcement rules requiring notice and comment is debated by the parties. But given that the program does not purport to give noncitizens enforceable rights to relief and allows for case by case, discretionary evaluation of applications in the field, there is a strong reason to believe that the program constitutes permissible enforcement guidance. Certainly it is hard to dispute the idea that, in principle, discretion should be exercised consistently, transparently, and based on reasons rather than at the whims of individual officers in the field. I consider it unlikely that a majority of the Court will rule that general, non-binding guidance of this sort is impermissible.

However, the Court may well not reach the merits. Texas claims standing to sue on the ground that it chooses to offer non-citizens with deferred action discounted driver’s licenses, and creating more people with deferred action will likely result in more people seeking the discount. This self-created, de minimis harm is a thin reed for standing. It is particularly interesting because the Court sua sponte directed the parties to brief the question of whether the administration’s policy implicated the president’s obligation to take care that the laws be faithfully executed.

This case shows that states are often deeply concerned about federal law enforcement or lack thereof; 40-some states joined briefs supporting or opposing cert. I’m going to go out on a limb and predict that the Court will not rule both that states have standing on the ground that different federal enforcement policies would reduce their costs, and that states have the right to insist that the president enforce their preferred laws. If the Court did, we (and the Court) would witness an unprecedented blizzard of litigation.

Kevin R. Johnson has written about the politics of the case here.

January 16, 2016

Does Ted Cruz's Conditional Citizenship Affect the "Natural Born Citizen" Analysis?

Cross-posted from PrawfsBlawg.

I have previously written that Senator Ted Cruz is a natural born citizen, eligible to the presidency, because he was a citizen at birth.  Though born in Canada and having a father of Cuban heritage, his mother was a U.S. citizen; the Immigration and Nationality Act also made him one under the circumstances.  Neal Katyal and Paul Clement, Michael Ramsey, Randy Barnett, and many others, persuasively argue (and this is a paraphrase) that if Congress makes a person a full member of the U.S. political community at birth, that person is a natural born citizen.  (See also classic Charles Gordon article here).  In Wong Kim Ark in 1898, the Supreme Court, quoting a leading treatise, stated: "Natural-born British subject' means a British subject who has become a British subject at the moment of his birth." 169 U.S. 649, 657 (1898) (italics in original). 

There is a catch, though, that has apparently not been addressed.  Under the law in effect in 1970, when Cruz was born, a child born abroad to two U.S. citizen parents was generally an unconditional U.S. citizen.  However, a person like Senator Cruz with a single USC parent had only contingent citizenship, and would automatically lose U.S. citizenship and nationality unless she that child spent five years in the United States between the ages of 14 and 28.  In Rogers v. Bellei, 401 U.S. 815 (1971), the Court, 5-4, upheld the citizenship termination provision.  Senator Cruz's citizenship was perfected in 1978, when Congress eliminated the retention requirement.  But when he was born, Rogers v. Bellei explained, Congress granted children in his situation "presumptive," "conditional" citizenship, not "absolute," "full" citizenship, because Congress had a "legitimate concern" that non-citizen parentage coupled with foreign birth raised questions of "divided loyalty" and "primary allegiance" which should be resolved by future U.S. residence. 

The case remains strong that Congress has the power to make children of one or two U.S. citizen parents full members of the political community at birth, even if born overseas.  Therefore if Senator Cruz had been born in 1980, he would, fairly clearly, be a natural born citizen.  But there is wide agreement that a person either is, or is not, a natural born citizen at the moment of birth; automatic loss of citizenship based on future circumstances is in tension with this.  Congress granted Senator Cruz a status that did not guarantee that he would even be allowed into the country after age 23, because they did not fully trust people like him.  Focusing on the conditional nature of Senator Cruz's status makes it less clear than it was that Congress either intended to make children with one U.S. citizen parent full and equal members of the political community, or exercised its authority to do so.  I would love to hear what other people think.

Update: My intellectual heroes Jack Balkin and Akhil Amar also discuss the issue. Prof. Balkin and Prof. Amar each recently gave wonderful lectures at UC Davis Law.

November 12, 2015

NAPABA in New Orleans 2015

At the National Asian Pacific American Bar Association (NAPABA) meeting in New Orleans last week, I spoke on a panel for attorneys interested in transitioning to the legal academy; Professor Rose Cuison Villazor moderated. The two of us are involved in reactivating NAPABA’s law professor’s committee, the goal of which is to serve as a link between the practicing bar and the legal academy. 


Me, Professor Villazor, and alums Atticus Lee '13, clerking for the USDC, Southern District of Texas (our co-author in the 1965 immigration Act book) and Teddie Hsu '10 of Snell & Wilmer in Los Angeles


Our panel on entering the legal academy: Professor Villazor, me, Kim D. Chanbonpin of John Marshall in Chicago, and Elaine Chiu of St. Johns

I also gave the keynote address at the luncheon of the International Law Section, talking about my work with the UC Davis APALSA getting the California Supreme Court to posthumously admit Hong Yen Chang, the first Chinese American attorney in New York who was denied admission to the California bar in 1890 because of his race.  The California Supreme Court admitted Hong Yen Chang in March.

September 17, 2014

Happy Birthday to our Flexible, Popular Constitution

Cross-posted from ACSblog.

Americans know their history and want to change it. No ancient injustice is ever settled; Lenny Bruce and the Scottsboro Boys were pardoned long after their deaths.  There is a constant flow of high school and college diplomas awarded to elderly people who were denied them decades ago for illegitimate reasons, including University of California students of Japanese ancestry who were unable to finish because they were interned in World War II, high school students expelled for participating in civil rights marches,  excluded because of their race, or who could not graduate because the schools were shut down entirely rather than allow racial integration. My students and I are petitioning the California Supreme Court to posthumously admit Hong Yen Chang to the bar, over a century after they excluded him because of his race.  The examples go on and on.

In this context, the popularity of the Constitution is remarkable. It is studded with oppressive, offensive measures. One would think that those who, say, protest the disgraceful name of the pro football team in Washington, would insist, independently of the substantive meaning of the Constitution, that the document be revised and restated to eliminate the parts protecting slavery or which are otherwise inconsistent with widely shared contemporary views of justice.

Part of the reason the Constitution stays the same is because it is hard to amend. But there is more than that.  Women and men, people of all races, and others who were once outside the Constitution but are now part of it can live with it because they feel the meaning of the words can change over time.

For example, people who support non-discrimination might nevertheless regard the Fourteenth Amendment as something of an embarrassment; in Section 2, it seems to grant constitutional approval of the denial of the vote to female citizens. Similarly, the Fugitive Slave Clause is still in force (and of course the Thirteenth Amendment permits slavery for those convicted of crime).

Ultimately, arguably the most offensive part of the Constitution is one of the most popular, the preamble. The Constitution, it said, was ordained and established by "we the people of the United States" for "ourselves and our posterity." The republic was white and male, by text, tradition, and canonical statutes (such as the Naturalization Act of 1790, passed by the first Congress and signed by George Washington, which limited the privilege of naturalization to "free white persons"). When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers' posterity trod the earth. 

Somehow, though, the Constitution remains popular. Although almost nothing in the Constitution has been expressly repealed, with the exception of Prohibition, exclusionary provisions are reimagined as inclusive, or imagined away. The implications of later Amendments and even court decisions flow backwards in time to change the meaning of words, or eliminate them entirely.  

The point is not about how courts should interpret the Constitution, but that as the composition of the People have changed, so too has their conception of the Constitution and what it means.  In practice, among Americans, the meaning of the document itself changes and grows to accommodate changes in life and politics.  Jefferson famously proposed that "Every constitution . . . , and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right."  Jefferson might be correct, and yet the People seem to be creating and recreating the new Constitution they want using the words in the one that is already there.

September 3, 2013

A Debt of Gratitude for the Civil Rights Movement

Cross-posted from the American Constitution Society Blog.

As Americans reflect on events a half century in the past, I hope they will consider how it might guide our actions now. In particular, I hope people will think about what Americans still owe the African American community.

On August 28, 1963, the date of the March on Washington, the United States was pervasively discriminatory to a degree not fully appreciated today.  African Americans bore a significant burden; in many or most parts of the country, they could not vote, attend public schools with whites, patronize the public accommodations or live in the housing that they wished, or hope to be hired for a broad range of public and private employment. 

But African Americans were hardly the only oppressed group. Rape within marriage was no crime, and, although the Equal Pay Act was on the books and would take effect in 1964, employers could get around it simply by not hiring women for good jobs.  The idea that gay men and lesbians might legally marry someone of the same sex was absurd; instead, investigation, prosecution, and imprisonment for sodomy were an important part of the business of law enforcement.  Un-American immigrants (Africans, Jews and Catholics) were discouraged from immigrating through gerrymandered quotas; Asians were excluded by race.  The list of those whose marginalization was justified and defended as obviously correct was long, and included people with mental or physical disabilities, Indians, religious minorities including Jews and Muslims, children born out of wedlock, and single mothers.

America was remade thanks to the bodies and blood of African Americans -- whites and others also participated in the civil rights movement, of course, but, primarily, it was African Americans. The civil rights struggle, exemplified by the March on Washington, had revolutionary consequences. Part of its effect was near-term changes like passage of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the unsung but perhaps most effective anti-racist legislation of the period, the Immigration and Nationality Act Amendments of 1965, which, by allowing for immigration on a non-racial basis, put America on the path to being a majority-minority nation.  

But more fundamentally, the movement established a principle of equal dignity and treatment that is still bearing fruit, not just for African Americans but for all people. Perhaps its major legacy is that a working majority of Americans are skeptical of any claim that a group should be excluded or disadvantaged; discrimination must justify itself, and, usually, it cannot.

The bitter irony is that African Americans have not enjoyed a full share of the social changes which they unleashed.  Women as students, workers and political leaders have made great strides in just a few decades.  Asian and Latino immigration has exploded; Latinos are now the country’s largest minority group.  Homophobia as a legal policy is rapidly collapsing.  But, because of current discrimination and the present effects of past discrimination, African Americans remain residentially and educationally segregated, over-incarcerated and under-employed.  They are poorer, less healthy and otherwise disadvantaged not only in comparison to whites, but also in some respects compared to recent immigrant groups.

The truth is that it is not obvious that naked self-interest compels women, Asians, gays and Latinos to be concerned about the African American community. If the food stamp program is cut or affirmative action for African Americans is eliminated, for example, that likely will not reduce female participation in higher education or undermine support for gay marriage. And all of those groups suffered in their own ways and can take credit for fighting their own battles to win a place at the table.  Nevertheless, African Americans do not enjoy basic equality in the sense of a full and fair shot to make it in this country. For all Americans concerned about justice, particularly those who would not be where they are, or here at all, but for the African American contribution to the principle of equality, this anniversary should be a reminder that there is important unfinished business.