Topic: Constitution, the Law, and the Courts

What Americans Think about Birthright Citizenship

Last week I appeared on Hill.TV’s What America’s Thinking with Jamal Simmons to discuss what the public thinks about birthright citizenship. President Trump has proposed using an executive order to curtail birthright citizenship, which confers automatic citizenship on children born in the United States regardless of their parents’ nationality. Constitutional legal scholars say the president doesn’t have the authority to do this. What do Americans think about the value of birthright citizenship?

The Hill partnered with HarrisX to conduct a nationally representative survey of 1,000 registered voters November 2-3 to find out. First, the survey asked about a child born to a mother legally residing in the United States on a temporary visa: 57% said the child should be considered a U.S. citizen, 28% said the child should not be given citizenship, and 15% aren’t sure. 

What about children born to mothers residing in the United States illegally? Even still, a plurality (48%) support birthright citizenship for children born to mothers living in the U.S. illegally while 38% oppose and 14% aren’t sure. It would be interesting to see what Americans would think about children born to mothers who have a Green Card, but are not yet full citizens of the U.S.

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Republicans’ opinions on birthright citizenship are far more impacted by the mother’s legal status than Democrats’ opinions. Sixty-two percent (62%) of Republicans oppose birthright citizenship for children born to mothers in the country illegally; however, opposition declines by 20 points to 45% opposed if the child is born to a mother in the U.S. on a temporary visa. Conversely, 18% of Democrats oppose if the mother is in the country illegally and 14% oppose if the mother has permission to be in the country. Thus, when thinking about birthright citizenship, Republicans tend to care more about the legal status of the parents than Democrats do. 

These results are consistent with a Pew Research Center poll that finds 57% of Americans oppose “changing the Constitution” such that children of illegal immigrants born the U.S. would not longer be considered citizens. 

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On the program, I explained that birthright citizenship has become core to America identity and something that bolsters American exceptionalism.

Many argue that birthright citizenship is a major reason the United States has been so tremendous at assimilating immigrants from many different places. Since the country’s founding, America has successfully absorbed waves of German, Irish, Italian, and Polish immigrants, among many others. Today the U.S. continues to do so with new immigrants coming from Central and South America, East and Southeastern Asia, and Africa.

Further, birthright citizenship has distinguished the U.S. from many European counterparts who have not assimilated immigrants as well into their societies. Many European countries have primarily conferred citizenship to the children of current citizens, rather than to children born within their nations’ borders. For instance, it was only in 2000 that Germany allowed children with non-German parents to acquire citizenship if at least one parent had legally resided in the country for 8 years and if the child demonstrated a link to Germany such as attending or graduating from German schools. 

Why might birthright citizenship help with assimilation? Citizenship not only confers rights and benefits upon its citizens but also places duties upon them. With citizenship comes the implicit duty to be loyal to the country’s principles and values which encourages integration within the broader American community. Francis Fukiyama points out in his excellent book Identity: The Demand for Dignity and the Politics of Resentment, that before Germany liberalized its immigration laws in 2000, there could be second- and third-generation children of Turkish immigrants, born in Germany, speaking perfect German, and having never been to Turkey, and still not be considered German. Yet, ethnic Germans living in the former Soviet Union who spoke no German could be naturalized. It’s not hard to see why a child of Turkish immigrants might feel isolated and excluded from their surrounding community under such a regime.

It may be that Americans have observed the success of birthright citizenship in successfully integrating many immigrants from differently places, including their own grandparents, or great-grandparents and so on, into the American community. It has led most Americans to accept the notion that “we are a nation of immigrants.” This historical memory may help explain why most Americans continue to support birthright citizenship today.

A Taking by Any Other Name Still Smells Rotten

The state of Indiana wanted to expand beach property available to the public along the shoreline of Lake Michigan. Much to its irritation, the beach property was already owed by many other people, as natural extensions of their homes. Indiana could have used its power of eminent domain to pay for this property. Instead, the state attempted to take the beach property without just compensation by abusing the common-law doctrine of “public trust.”

In Gunderson v. Indiana, Cato now joins the National Association of Reversionary Property Owners and two other organizations on an amicus brief supporting the property owners’ request that the Supreme Court review this practice.

The “public trust” mechanism for Indiana’s machinations was once used by kings to control public waterways. In ye olden days, kings would assume authority over waterways abutting private property to ensure that navigation and fishing could continue at a relatively uniform pace. The Indiana bureaucracy and courts reformulated the rule to extend the “trust” upwards from any actual water to the “high water mark” on the sand. This meant that even if a house had a private section of beach behind it, if the water had at some time risen upward, the property was now forfeit to the government.

This is a perversion of the “public trust” doctrine and a misreading of the common law, which preserved private property rights both by adhering to uniform decisions over time and by clearly defining what rights people could expect in their property. The “public trust” doctrine was used only to give the sovereign control over waterways for navigation and fishing. It never extended to beaches—and certainly was not meant to deprive private parties of their reasonable expectation to their own property. For the Indiana courts to invoke that power in this context is to steal property under the guise of an ancient protector.

This redefinition is a taking by any other name: what once belonged to a person now belongs to the state. And a taking, by any other name, still requires payment under the Fifth Amendment’s Takings Clause. The Supreme Court has long recognized that states attempt takings without directly invoking their powers of eminent domain. These “inverse condemnations” often come in the form of physical invasions—such as the government’s putting objects on the people’s property—or in regulations. The regulations here may not have been so wide as to deprive the owners of all their land, but the wound to their interests is still there.

The lower courts don’t have the right to kick sand in the face of Fifth Amendment and then hide behind the common law. State and local officials may wish they could step into the place of benevolent kings, but their attempts to do so here show them to be despots.

Hacking the Appointments Clause

The naming of Matthew Whitaker as acting head of the Department of Justice, following the forced resignation of Attorney General Jeff Sessions, has kicked off a mini-debate between legal scholars over the propriety of his appointment.  On Thursday, Neal Katyal and George Conway argued in The New York Times that Whitaker’s elevation ran afoul of the Constitution’s Appointments Clause, which requires that the president appoint “principal officers” of the United States, such as the Attorney General, only with the “advice and consent” of the Senate.  John Yoo, a conservative legal scholar who served at DOJ under the Bush Administration, told Axios he agreed, and that the Federal Vacancies Reform Act, which purports to authorize the appointment of unconfirmed interim officers to fill vacancies, was unconstitutional as applied to such “principal” offices.  Supreme Court Justice Clarence Thomas expressed a similar view in an opinion just last year.  On the other side, we have Steve Vladeck, a law professor at the University of Texas, who notes that the Supreme Court blessed temporary appointments without confirmation back in 1898, in United States v. Eaton.  

I’m not sufficiently steeped in the history or jurisprudence of the appointments clause to have a strong view either way on the legality of Whitaker’s elevation, but it does at least seem to run contrary to the spirit and intention of the Appointments Clause as articulated by Alexander Hamilton in Federalist 76, which gives the following rationale for requiring Senate confirmation for the highest posts in the executive branch:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

 

The elevation of Whitaker to the role of acting attorney general seems as precise an instance as one could imagine of the scenario the Framers hoped to deter.  It is, after all, no secret why President Trump has been dissatisfied with Sessions: He has frequently made clear that he was infuriated by Sessions’ recusal (quite clearly required by DOJ rules) from overseeing the investigation into Russian election tampering—which has already seen legal penalties imposed on several of the president’s allies—and his insufficient enthusiasm for pursuing the president’s political adversaries.  Whitaker, formerly Sessions’ chief of staff, seems certain to be more accommodating.  He took that job only a year ago, after making a successful play to get noticed by the administration via editorials and television appearances in which he attacked Special Counsel Robert Mueller’s investigation, and asserted that he would have indicted Hillary Clinton over her private e-mail server, despite the consensus of DOJ attorneys that there was no sound basis for prosecution. Though he did serve a stint as U.S. Attorney during the George W. Bush administration, Whitaker had spent recent years running a nonprofit that produced partisan attack ads targeting Democrats.  Charitably put, his resume is a bit thin for the nation’s top law enforcement job, even in an “acting” capacity: His chief qualification for the post is being “personally allied” to Trump.  He might, under present circumstances, nevertheless muster the votes for confirmation in the Senate, but the confirmation process itself would doubtless be fraught, providing an opportunity for pointed questions about whether he’d signaled to the White House his eagerness to shut down investigations like Mueller, or pursue prosecutions of the president’s foes.  It seems quite plausible, in other words, that the Appointments Clause would have functioned as intended to deter the nomination of someone like Whitaker to head the Justice Department if he had to go through confirmation.

In the Federal Vacancies Reform Act, the White House has seemingly found a mechanism for, in effect, hacking the Appointments Clause:  Get a loyalist hired in a subordinate role to a Senate-confirmed “principal officer,” create a vacancy by forcing that officer to resign, and then promote the loyalist to the top job, circumventing the Senate for at least seven months.  Moreover, the seven-month clock is extended for the period during which the nomination of a permanent replacement is pending, and restarts if that nomination fails to win the Senate’s consent.  In theory, at least, that means Whitaker’s “temporary” leadership of DOJ could last for the remainder of Trump’s term, provided the Senate finds Trump’s nominees to replace him even less acceptable.  Given that Trump has been open about his desire to replace Sessions with a more “loyal” attorney general for more than a year, it’s even conceivable that the White House anticipated his eventual elevation back when he first joined the Justice Department.  

It’s anyone’s guess whether, in light of Eaton, the courts will balk at this circumvention of the Senate’s role in providing “advice and consent,” but if they don’t, the White House has drawn a convenient roadmap for circumventing a constitutional safeguard that seems ripe for further exploitation. 

N.Y. Proposal: Social Media Checks Before Gun Purchases

WCBS NewsRadio New York reports

Two New York lawmakers are working to draft a bill that would propose a social media check before a gun purchase.

Brooklyn Borough President Eric Adams and state Sen. Kevin Palmer’s proposal would allow authorities to review three years of social media history and one year of internet search history of any person seeking to purchase a firearm.

True, “free speech and gun rights complaints are likely to come up” – no kidding! – but Adams says it’s a way to identify persons who “not suitable to hold and possess a firearm.” 

The two are hoping to identify any hate speech on social media profiles, which are often revealed only after someone is arrested in a mass shooting.

The only way to make this proposal better – by which I mean worse – would be to arrange for New York to quarter troops on the homes of applicants with especially bad social media postings. That way the sponsors could achieve a straight flush of Bill of Rights violations.

Poll: The ACA’s Pre-existing Condition Regulations Lose Support When the Public Learns the Cost

Days before the 2018 midterms, 68% of voters say that health care is very or extremely important to how they plan to vote in this year’s elections, according to a new Cato 2018 Health Care Survey of 2,498 Americans. These numbers are driven primarily by Democratic voters with 86% who say this issue is especially important to them—in fact, 56% say the issue is “extremely important” to them. Independent (33%) and Republican voters (21%) are far less likely to say this is an “extremely” crucial issue for their vote this Tuesday.

 FIND FULL POLL RESULTS HERE

These results are consistent with analysis of 2018 campaign ads, which finds Democrats have made healthcare the centerpiece of their case to voters. About half of Democratic ads have featured health care issues compared to less than a third of Republican ads. At the core of the debate is what to do with pre-existing condition regulations embedded in the Affordable Care Act (ACA) that prevent health insurers from denying coverage or charging higher premiums to people with pre-existing conditions. Much of the public debate centered on pre-existing condition protections assume that these regulations enjoy widespread public support. However, these protections lose public support when voters learn about their costs, finds the Cato 2018 Health Care Survey.

The survey first replicated the results from myriad other surveys finding a majority (65%) of Americans favor regulations that prohibit insurance companies from refusing to cover, or charging higher premiums to, people with pre-existing conditions, while 32% oppose. However, support plummets when Americans are faced with likely consequences of these regulations. 

Support drops 20 points to 44% in favor and 51% opposed if pre-existing condition protections limited people’s access to medical tests and treatments. Similarly, 44% would favor and 50% would oppose if these regulations harmed the delivery of high-quality health care. Support drops 18 points to 47% in favor and 48% opposed if these regulations limited people’s access to top-rated medical facilities and treatment centers. Some may dismiss these potential costs as improbable; however, research finds these are likely consequences from the incentives these regulations create for the health care industry. It is for this reason that we investigate how the public evaluates these costs.

Compared to quality reductions, Americans are more prepared to pay higher taxes or premiums in exchange for keeping regulations that prevent insurers from denying coverage or charger higher premiums to people with pre-existing conditions. About half (51%) would favor and 44% oppose if these regulations raised taxes and 49% would favor and 47% would oppose if they drove up premiums. 

These results follow a familiar pattern identified in the Cato 2017 Health Care Survey that asked about each of these pre-existing condition protections separately. However, in this year’s survey we improve the desirability of these regulations by offering them as a bundle. Even still, when faced with the realistic costs of these mandates, public support plummets. 

Taking a look among partisans, we find that without any mention of costs, 83% of Democrats, 55% of independents, and 52% of Republicans initially support pre-existing condition protections. However, independents and Republicans turn against these regulations if they increase the cost of health insurance (66%, 55%), reduce access to medical tests and treatments (59%, 58%), harm the quality of health care people receive (57%, 55%), reduce access to top-rated medical facilities and treatment centers (57%, 55%), or increase taxes (57%, 57%). Democrats are less swayed by these trade-offs; however, they are least willing to sacrifice the quality of health care in exchange for keeping the pre-existing condition regulations (42%). Instead, majorities of Democrats are willing to have less access to medical tests (57%), or top-rated medical facilities (61%), or pay higher premiums (67%) or taxes (72%). Some differences in how partisans answer these questions may depend, perhaps, on how believable these costs seem to respondents rather than how acceptable they are. For instance, since Democrats are most enthusiastic about these regulations, they may be less likely to believe that they could harm the quality of care.

Higher-income Americans are more willing than low-income Americans to make trade-offs, such as shouldering higher premiums or having less access to top-rated medical facilities, to keep the pre-existing condition regulations. For instance, 61% of Americans earning more than $80,000 a year say they’d pay higher premiums to keep these regulations. In contrast, about a third (38%) of Americans earning less than $40,000 a year agree; instead, 56% oppose paying higher premiums for this reason. Nearly 6 in 10 (57%) of people earning more than $80,000 a year say they’d accept having less access to top-rated medical facilities compared to 35% of Americans earning less than $20,000 a year.

Short Term Plans

The survey also asked Americans about new federal rules that allow consumers to purchase alternative health insurance plans that don’t comply with ACA-mandates. The survey finds that majorities support new federal rules that allow consumers to purchase alternative plans, like short-term plans, even when confronted with likely trade-offs.

First, the survey presented respondents with only the anticipated benefits of the new federal rules. Doing so finds that 77% of Americans support new federal rules that allow consumers to purchase health insurance plans that cost 50% less and offer greater choices of hospitals and doctors than current plans and would cover 2 million more uninsured people. 

Support drops to 64% in favor and 31% opposed if these rules meant that some people would purchase insurance policies that cover fewer services than current plans. For instance, these new plans would not be required to cover services like mental health and prescription drugs. 

One reason why such plans have lower premiums is they do not have to comply with ACA pre-existing condition regulations and thus may exclude people, or offer limited services to people, with expensive medical conditions. These lower premiums could draw people who use fewer medical services out of the ACA-compliant plans and thus increase premiums for those who remain in those plans and are not eligible for subsidies. Nevertheless, the survey finds that 59% would continue to favor while 35% would oppose these new rules if they caused premiums to rise for some people who purchase insurance plans in the individual market.

These rule changes are popular among partisans with 77% of Democrats and 86% of Republicans in support. Majorities of Democrats and Republicans continue to favor allowing people to purchase non-ACA compliant plans even if doing so means people would not have as many services covered (58% and 71%) or if doing so increased premiums for unsubsidized people in the individual market (63% and 65%).

The Path Forward

The survey also asked Americans how they felt policymakers should approach health care reform going forward. A majority (55%) of Americans believe that the “better way” to sustainably provide high-quality affordable health care is through expanding free-market competition among insurance companies, doctors, and hospitals. Thirty-nine percent (39%) think that more government regulation of insurance companies, doctors, and hospitals is more likely to provide affordable coverage. These numbers are virtually unchanged from last year’s health care survey.

Independents (54%) and Republicans (79%) agree that more free-market competition rather than more government management of health care is more likely to lead to affordable coverage. However, a majority (60%) of Democrats think more government management is the key. Despite these partisan differences, majorities or slim majorities of whites (58%), African Americans (53%) and Hispanics (51%) believe more free market competition can better provide affordable health care than more government control.

Implications

These results do not support the widespread misperception among the political punditry that pre-existing condition regulations are necessarily and universally supported by voters across the political spectrum. Voters like benefits but not costs. And some costs are more acceptable to voters than others. Democratic accountability demands that we understand if voters are willing to bear the necessary trade-offs and costs in exchange for establishing a new policy, regulatory protection, or social program. But first, pollsters have to ask.

 
 
The Cato Institute 2018 Health Care Survey was designed and conducted by the Cato Institute in collaboration with YouGov. YouGov collected responses online October 26-30, 2018 from a representative national sample of 2,498 Americans 18 years of age and older. The margin of error for the survey is +/- 2.66 percentage points at the 95% level of confidence.

 

Judge Thapar Can Handle the Truth about the Fourth Amendment and Due Process

Before President Trump nominated now-Justice Brett Kavanaugh to fill Justice Anthony Kennedy’s Supreme Court seat, I wrote a piece about Judge Amul Thapar, a top contender for the seat who may yet find his way onto the Court. Thapar is on the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit and is a judge who has displayed a deep understanding of our founding principles. He’s also a clear writer with a fondness for movie references. Two of his recent opinions illustrate his commitment to individual liberty and due process through a nuanced, contextualized view of the Constitution.

Morgan v. Fairfield County concerned a “knock and talk,” where county policy involved forming a police perimeter around a suspect’s house while one officer attempts to talk to the residents. One of the perimeter officers behind the house saw marijuana plants on a balcony, pursuant to which the police eventually secured a search warrant. The majority found that the county’s “knock and talk” policy directed the officers to conduct a warrantless search – that forming the perimeter involved invading the “curtilage” of someone’s house – and so the county could be held liable for a Fourth Amendment violation (though the officers had qualified immunity because they were just following standard policy).

Judge Thapar dissented in relevant part, arguing that while the officers did have qualified immunity if all they were doing was preserving officer safety or preventing the destruction of evidence, the county’s policy itself did not direct the officers to conduct a search. Accordingly, there was no constitutional violation unless the police actively searched while they formed their perimeter. Looking at the history of the Fourth Amendment, Thapar defined a search as a “purposeful investigative act.” He argues that the Supreme Court muddies Fourth Amendment protections by describing them as relating to a reasonable expectation of privacy, rather than to the reasonableness of a search. That gives too much wiggle room to police and courts alike, as judges struggle to define subjective expectations of privacy. Thapar maintains that the question should instead be whether officers engaged in a purposeful investigative act – and indeed would have remanded the case for a determination of that issue. This would simplify the analysis and allow courts to apply the original meaning of the Fourth Amendment to the facts before them. 

“Eet eez, how you say — zee dumb law.”

Reuters reports (“French lawmaker proposes bill to outlaw mockery of accents”) that lawmaker Laetitia Avia of Emmanuel Macron’s ruling party intends to introduce a bill adding discrimination based on accent or pronunciation (“glottophobia”) to the list of banned discrimination categories. This came after an exchange between leftist party leader Jean-Luc Mélenchon and journalist Véronique Gaurel, born in Toulouse, in which he appeared to make fun of Gaurel’s southwestern accent and then called for the next question to be in “comprehensible French.”

I thought of researching whether France has enacted other vaguely framed laws aimed at soothing the sensibilities of the Toulouse region. But since there is no way to search for vague laws as a category in themselves, I soon realized that might set me off on — if you will excuse the expression — a Too-Loose-Law Trek.