Author: Gerard Magliocca

3

Is the Logan Act Constitutional?

Now that the argument in King v. Burwell is over (looks like the Government will win, though three years ago it looked like the government would lose and then . . .), let us return to other subjects.

In 1799, Congress passed the Logan Act, which states, in part:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Nobody has ever been convicted under this statute, and I have to wonder whether it is constitutional.  Why don’t I have a First Amendment right to carry on correspondence with a foreign government or official to influence their policies in connection with ours?  If you construed this statute narrowly (say, to apply to giving the enemy information in wartime), that’s one thing, but the Logan Act covers much more.  The fact that this was passed by the same Congress that gave us the Alien and Sedition Acts (and was meant to bar Jeffersonians from talking to France), combined with the total lack of convictions over more than 200 years,  makes the case for constitutionality look even weaker.

5

The Arizona Redistricting Case

The press reports of today’s oral argument suggest that the Court will find the Arizona state constitutional amendment unconstitutional.  The Justices evidently think that the state legislature does have standing and that the federal statute governing redistricting does not authorize what Arizona has done.  (I think the statute does authorize the plan.)  On the constitutional issue, as I said in prior posts, I am inclined to agree that this is unconstitutional, though I find the issue challenging and took a long time to settle on a position.

17

Last Pre-Argument Thoughts on King v. Burwell

I’ll have more to say after we see the transcript on Wednesday (evidently we will not get same-day audio of the argument), but beforehand I thought I’d offer some final pre-game observations.

1.  We’ll see if any of the Justices ask about standing.  Thus far, there is no sign that any are interested.

2.  To me, the problem in the case is that neither side’s story is compelling.  Petitioners are arguing that Congress intended that subsidies would be available only on state exchanges.  I think that is implausible.  Respondents are arguing that “established by the State” is ambiguous.  That is also not plausible.

Instead, I think what we have is a text that is unambiguous and erroneous.  What is the right response to that?  Some errors of this type (say, a typo that gives the wrong date) would not be followed.  Others would not be followed because of some sort of constitutional avoidance doctrine.  This case falls into neither of these categories.  You could say something like “if this was an error, then Congress must usually be held to the mistake to ensure better drafting in the future.” (The subtext here would be “Don’t use reconciliation to enact major legislation.”)  Or you could say, “if there is an error then it should be disregarded, but the burden is on those alleging that there is an error to prove that there is.”  Maybe the respondents cannot meet that burden here.  These are the right questions, though the answer is not so clear.

3.  I’ll be curious to see if the Justices focuses on remedial questions.  If you want to rule for petitioners, you may want to reassure the uncertain that such a decision will not blow up Obamacare.  Some states will create their own exchanges in response.  Others could (as I have suggested elsewhere) try just delegating their exchange responsibilities to the federal exchange.  The Court could delay the application of its order for, say, six months to avoid chaos when subsidies are terminated in many states.  If Kennedy and the Chief Justice ask a lot about this, then they would suggest to me that they will go against the Gov’t.

6

Net Neutrality

Today the FCC voted to classify the Internet as a public utility and enforce net neutrality.  Kudos to Tim Wu (disclosure–I’ve known Tim for a long time).  Rarely has an academic had such a significant impact on public policy.  Congress may tinker with the regulatory framework in the coming years, but I suspect that the principle of net neutrality will remain a part of that framework.

2

There Are Many Fish in the Sea

For those of you who enjoy statutory interpretation, the Supreme Court’s long-awaited “discarded fish” opinion came out this morning.  Justice Kagan’s dissent probably marks the first Supreme Court reference to Mad Libs.

2

Committees in the Constitutional Convention

In reading David Stewart’s excellent new book on James Madison, I was surprised to learn that we have no idea why certain delegates to the Constitutional Convention served on some of the ad-hoc committees and not others. This fact is tucked into the Acknowledgements, which shows why should you read everything in a book (including endnotes) carefully.

Madison’s Notes simply name the people who serve on a given committee without explaining the process used to select the members.  Maybe this was a purely voluntary process, but maybe with some diligence another pattern can be discovered if one examines all of the committee assignments.

2

Who are “the people?”

My previous post said that some courts have held that the Second Amendment does not apply to illegal aliens in part because they are not part of “the people” described in the Constitution.  Why should we think that “the people” is a term of art rather than just a plural for person?

Here’s how the Supreme Court explained this in United States v. Verdugo-Urquidez:

The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

If we go back further, Dred Scott said that “the words ‘people of the United States’ and ‘citizens’ are synonymous terms.”  As far as I know, this was the first judicial statement on the issue, but this cannot be the only definition of “the people” in the Constitution, as that would mean legal aliens are not protected by the Second or the Fourth Amendment.  On the other hand, legal aliens do not vote for members of the House of Representatives, which would support the narrower view of what “the people” are. Note that the definition given in Verdugo-Urquidez (and repeated in Heller) does not cite any Founding-era materials.

Here is one last conundrum.  In incorporating the Second and Fourth Amendments, the Court held that these rights are fundamental, implicit in the concept of ordered liberty, etc.  If so, how can they not apply to illegal aliens?  Are there two kinds of fundamental rights?  Some apply to illegal aliens (say free exercise of religion) and some do not?  Perhaps one should say that any incorporated right applies to everyone, whereas unincorporated rights do not.

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Illegal Immigrants and the Bill of Rights

My next article is going to analyze the application of the Bill of Rights to illegal immigrants.  Some circuit courts have held (drawing in part on language in Heller) that the Second Amendment does not apply to them.  The Supreme Court has expressly reserved the issue of whether the Fourth Amendment applies to them.  These are important questions that I would like to address in a series of posts.

Here is the basic problem.  There are parts of the Bill of Rights that clearly apply to all persons.  (The Fifth Amendment’s protections for grand jury indictment, double jeopardy, self-incrimination, and due process.)  Other parts use definitions that are defined in terms that can apply to any person.  The Sixth Amendment refers to “the accused,” the Third Amendment refers to “any house,” and the Seventh Amendment refers to “suits at common law.”  Still other parts make general statements that cannot be limited to only some (The Eighth Amendment and most of the First Amendment).

Other parts of the Bill of Rights, though, that use the term “the people” to refer to the right in question.  (The Second, Fourth, Ninth, and Tenth Amendments, along with the Assembly and Petition Clauses of the First Amendment.)  The Supreme Court has said (more than once) that this term is not just the plural of person.  Instead, “the people” refers to the American political community and thus arguably excludes illegal aliens.  If this interpretation is correct, then there are two tiers of rights in the Bill of Rights.  In the Fourteenth Amendment, of course, there are two tiers of rights (privileges or immunities for citizens, due process and equal protection for everyone).  But is this reading of “the people” right?  I’ll take that up in another post.

This is just one piece of the puzzle.  Consider also that the Amendments that use “the people” have been incorporated through the Due Process Clause of the Fourteenth Amendment, which uses the term person.  Does this mean that the rights in the states are broader in scope than as against the National Government? If not, why?  Here’s another.  Does “the people” mean the same thing in each amendment that uses it?  Can you distinguish, say, the Fourth Amendment from the Second?  How does this relate to “We the People” in the Preamble?  And what about the Ninth Amendment?  Are some people entitled to unwritten rights but not others?  More to come.