Author Archive for
Peter Spiro

Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

The visual out on the web of the passport with the Stars and Stripes and other official US Government ornamentation as background on the personal information page would have easily been mistranslated as US Government recognition of Israeli sovereignty. Without the graphic, there’s too much explaining to do — you have to connect the document with a person (and that person’s birth information) to cause the offense. The attenuation should mitigate the risk of damage on the ground.

2. The government lacks the amicus support one has come to expect in a case like this. Where is the brief from former U.S. diplomats? In Medellin, Madeleine Albright et al. argued that the failure to find the VCCR self-executing would do serious damage to US foreign relations. There’s no equivalent in Zivotofsky, in circumstances in which the risk of damage would seem an order of magnitude higher (in the end, US-Mexico relations survived Medellin’s execution, and there have been no reported cases of other countries violating US citizen rights under the VCCR). The silence from other quarters might make the justices feel a little more confident that upholding the statute is not going to spark riots in the Arab world.

The government garnered only three amici in support. Perhaps everyone is scared aware from taking a stance that looks anti-Israel. The Arab Anti-Discrimination League makes a non-delegation argument (as in, the statute unconstitutionally delegates decisionmaking to private individuals, namely, those who choose “Israel” over “Jerusalem”). The “True Torah Jews” argue that Zivotofsky lacks standing. And one David Boyle makes a grab-bag of arguments, including a Logan Act claim. Can anyone with a bar admission file green briefs these days? On the petitioner’s side, check out Louis Fisher’s anti-Curtiss-Wright diatribe (okay, did the Government have to cite Curtiss-Wright more than a dozen times in its brief?).

3. Why would the Court have taken the case, except to reverse? If the Court were inclined to strike the statute down, letting the D.C. Circuit’s creditable ruling stand would have accomplished that objective in a low-profile, low-cost way.

The doctrinal math for sustaining the statute is straightforward. The Secretary’s action is readily framed as Youngstown category 3 (much more so than the presidential memo in Medellin). From there, it’s a simple matter of finding Congress to have authority over the issuance of passports.

Assuming it doesn’t ignite the Arab Street, the decision won’t be of immediate consequence. Recognition decisions are much less important than they once were, and the probability of serious splits between Congress and the White House slighter still (hence the relative paucity of recent historical precedent for the issue). Ditto for passport authority parameters. This just isn’t something that gets fought over very often. Because the result looks unthreatening in these ways, I don’t see the Court going through Article I gymnastics to carve out this particular aspect of passport issuance from what is otherwise clearly within congressional authority (that is, some general authority over the issuance of passports under the foreign commerce and naturalization clauses). The Article I argument sounds more like a hairsplitty Breyer dissent than a broadly reasoned Roberts majority.

Upholding the statute would fit nicely into the Court’s project of normalizing foreign relations law. Zivotofsky I was a key step in that agenda, playing the Marbury card against the conventionally deployed political question doctrine in this kind of foreign relations dispute. Medellin was another. Upholding the statute would be normalizing. Exclusive presidential powers are exceptional; they seem less amenable to judicial supervision, especially when they are located in an amorphous and historically uncabined foreign relations power.

Paul Barrett’s Law of the Jungle (Excellent Account of Chevron Ecuador)

by Peter Spiro

Paul Barrett gave a talk earlier this week at Temple on his Law of the Jungle. It’s a terrific journalistic account of the epic 20-year battle over Chevron’s pollution of Ecuador’s rain forest.

For anyone with a vague awareness of the case the book supplies a highly readable cheat-sheet. I suspect like many with incidental interests in international law, I had some idea that Chevron (Texaco) did some awful things in Ecuador but also that there was something not-quite-right about the plaintiffs’ side of the equation. Barrett’s account fills out the picture on both sides.

The book is a model biography of a case with epic turns. It’s also in many respects the biography of Steven Donziger, the activist lawyer who made this case different from other suits against US multinationals for misdeeds abroad. Barrett paints a pretty persuasive picture of how Donziger’s hubris ultimately did him in. For starters, Donziger had himself shadowed by a documentary filmmaker, the raw footage of which ended up discoverable along with the rest of his paper trail. Material that would ordinarily have remained protected by attorney-client privilege ends up supplying the backbone to Barrett’s narrative.

That gives the book something of an unbalanced feel — the equivalent from Chevron’s side isn’t part of the record ($400 million in fees to Gibson Dunn!), so Chevron’s litigating maneuvers get much less air time here. Conservatives and the business community will be happy with the result (see this favorable review in the Wall Street Journal, for instance). But although Chevron got itself in trouble in various respects along the way (starting with the oil drilling itself, but also including the strategically disastrous push to have the proceedings transferred to an Ecuadorian court which ultimately delivered an $18 billion judgment in the case), its lawyering was clearly of a more conventional description. There are interesting cameos of Ecuadorian politicians and judges, litigation venture capitalists, and other US lawyers who misguidedly jumped on board even after the veneer of celebrities and good press had started to crack. But it’s Donziger that makes this the exceptional case.

And exceptional for the telling. For any cause lawyer, this is a cautionary tale. Sure, one has to play public interest cases from various angles, in and outside the courtroom (including of course the media, with which Donziger proved masterful until things started falling apart). But there are limits, and Donziger clearly exceeded them on various fronts. Though he may yet survive the RICO judgment entered against him in the SDNY (on appeal, on fairly technical grounds unrelated to the underlying facts), he’ll come out of this with a severely tarnished reputation among progressives as well as more natural adversaries.

I’m not sure that the lessons are generalizable much beyond that. The book closes with thoughts on how US class-action lawyers have overreached in other contexts. I don’t know that Chevron Ecuador necessarily points in that direction. US-style litigation could still take hold on a global basis even as it gets a haircut at home. This case shows that transnational disputes have yet to be adequately institutionalized, with much greater potential to get out of hand in various directions. No one really wins on that terrain.

Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

ISIL Foreign Fighters: You Can’t Take Their Citizenship. Can You Take Their Passports?

by Peter Spiro

The concern over ISIL foreign fighters had ramped up even before President Obama announced that he will preside over a September 24th UN Security Council Meeting on the subject. No surprise that politicians are jumping on the bandwagon. Ted Cruz introduced legislation last week in the Senate that would purport to terminate the citizenship of those associated with terrorist organizations. Michelle Bachmann has done the same over in the House. (Funny how the two chief sponsors of expatriation laws have their own personal experience with the loss of citizenship, Cruz with Canadian, Bachmann with Swiss.)

But Bachmann’s bill goes further in mandating passport revocation.

SEC. 4. AUTHORITY TO DENY OR REVOKE PASSPORT AND PASSPORT CARD.

(a) Ineligibility-

(1) ISSUANCE- Except as provided under subsection (b), the Secretary of State may not issue a passport or passport card to any individual whom the Secretary has determined is a member of an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) that is engaging in hostilities against the United States or its allies.

(2) REVOCATION- The Secretary of State shall revoke a passport or passport card previously issued to any individual described in paragraph (1).

(b) Exceptions-

(1) EMERGENCY AND HUMANITARIAN SITUATIONS- Notwithstanding subsection (a), the Secretary of State may issue a passport or passport card, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1) of such subsection.

(2) LIMITATION FOR RETURN TO UNITED STATES- Notwithstanding subsection (a)(2), the Secretary of State, before revocation, may–

(A) limit a previously issued passport or passport card only for return travel to the United States; or (B) issue a limited passport or passport card that only permits return travel to the United States.

In contrast to citizenship-stripping, this kind of passport-stripping would pass constitutional muster from a rights perspective. In Haig v. Agee, the Supreme Court upheld passport revocation where justified by national security interests (that case involved Philip Agee, notorious for disclosing the names of undercover CIA operatives). No problem doing that in the context of ISIL fighters, one wouldn’t think.

To the extent there’s an issue here, it would involve separation of powers, Congress dictating to the President. The Supreme Court will have something to say about that this term. But the humanitarian exceptions clause undercuts any claim that this trespasses on presidential power, regardless of where the Zivotovksy case ends up.

At the same time, it’s pretty clear that the President could do this on his own (that was the case in Agee). A UNSC resolution (assuming one is adopted) would further legitimize the policy. Insofar as Congress has trouble getting its act together on anything, the Obama Administration might make passport-stripping a subsidiary component of its anti-ISIL strategy.

Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)

by Peter Spiro

I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here.

The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future Congresses from authorizing the use of force even where such congressional authorization is necessary.

It’s a little like Tonkin Gulf. That resolution gave the President what he needed to respond to an (alleged) attack by North Vietnamese forces. But the ensuing conflict was beyond anything that Congress could have imagined at the time, and it felt burned for a generation thereafter for having written what turned out to be a blank check. Depending on how the ISIL operation goes, Obama’s justification could result a similar kind of institutional resentment and distrust, which will make cooperation even more difficult than it already is.

Part of the disappointment here is that he had a much better card to play: longstanding historical practice. (This typically comes under an Article II/Commander in Chief label, though I don’t think you need the constitutional text to get there). The ISIL operation would have comfortably fit into the tradition of Presidents undertaking limited uses of force without congressional authorization. There would have been continuity to that argument — many would have disagreed, but I think the critique would have subsided in due course, because it would have enjoyed a strong basis in the practice. I don’t know if the critique of the AUMF justification is going to subside so quickly. The early returns are not promising.

Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes

by Peter Spiro

It looks like President Obama learned his lesson. Last summer he decided to seek Congress’s advance approval for a strike against Syria’s chemical weapons capabilities. Political support for the operation evaporated. Obama looked weak and waffly (the decision was taken on a dime after a 45-minute South Lawn stroll with chief of staff Denis McDonough, almost certainly not vetted through the legal chain of command). Even though the ISIS operation will probably be more significant than what he had in mind for Assad, he won’t be looking for a formal nod from Congress.

In the run-up to the decision (which will likely be announced in his speech Wednesday night) there emerged a nearly unanimous chorus of voices — scholars, lawmakers, commentators — arguing in favor of advance congressional authorization. Among law profs, those pressing the case included Jack Goldsmith, Harold Koh, Ilya Somin, Steve Vladeck and Jennifer Daskal. Tim Kaine and Ted Cruz agreed on this one. The Atlantic’s Conor Freidersdorf had this stinging column pressing for a congressional mandate.

Why Obama is better served bucking this consensus:

1. Authorization would not have been easy to get. Most sane people agree that ISIS presents a threat that needs to be addressed. Prospective military action against the entity enjoys high levels of US popular support.

But that doesn’t mean Congress would have handed Obama the authorization he sought, even on a narrowly tailored basis. Remember, Congress is totally dysfunctional. GOP members facing reelection in November may be loath to do anything that supports the President. The tradition of politics stopping at the water’s edge seems quaint.

If an authorization measure were voted down, Obama would have boxed himself into a corner. Either he would have backed down, with US (and global) security taking the hit. Or he could have persisted with the action on a lonely and legally shaky basis. Although he would surely have framed a request for congressional authorization as constitutionally discretionary (as he did with Syria), that line would have rung hollow in the wake of rejection. This is a context in which actions speak louder than words. The legitimacy of any military action following a failed authorization would have been undermined at home.

And what would Congress’s approval have won him, assuming he got it? Politically, not much. Congress’s favorability ratings are at all-time lows (it is less popular than the U.S. going communist). Anything that can get through Congress now must by definition be so popular that Congress’s approval is itself like a single candle on a crowded cake. That small reward wasn’t worth the significant downside risk of a rebuffed request.

2. Seeking congressional okay would have set a terrible precedent for the future. Leaving aside direct attacks on the United States, there won’t be an easier case for military strikes than against the Islamic State, whose brutality has provoked international revulsion. Most future cases will involve adversaries not nearly so scary. The rise of Rand Paul Republicanism will raise the bar for authorizing any military action, however well advised. Imagine a close case arising during a GOP primary season. If President Obama had asked today, his successors would have had to ask tomorrow.

In that respect, he’s lucky that the Syria CW episode mooted out before it developed any further (it almost certainly would have gone badly). As an incomplete episode it didn’t set down a constitutional precedent. It’s a lot easier to walk back from Rose Garden statement than from a closed constitutional case-file.

3. Obama has ample constitutional authority for not securing congressional authorization. There has been a lot of hair splitting on constitutional war powers lately, the unfortunate byproduct perhaps of the AUMF experience. But the basic dividing line (as nicely argued in the OLC Libya opinion) is between real wars (requiring advance congressional authorization) and everything else (not requiring it). Whatever the ISIL operation ends up being, it is unlikely to be of the former description, involving high risk of significant casualties, huge appropriations that Congress can’t refuse, and escalation. It won’t be “war” for constitutional purposes. I don’t need Article II for this. I’ll take 200+ years of history.

There will be inevitable carping about the refusal to seek the congressional okay here. But that has always been the case, even with respect to quick and painless military action. It will be a little louder than usual this time around. There are the contingencies of this particular operation, which is likely to be complicated and drawn out, with no immediate prospects of erasing the problem. There may also be a broader shift against using force in the wake of Iraq and Afghanistan. But Obama will weather the denunciations, just as have all of his predecessors, validating the constitutional order in the process.

Ted Cruz Moves to Strip Citizenship of ISIL Fighters

by Peter Spiro

As predicted last week, it was only a matter of time before someone on the Hill dropped a bill to terminate the citizenship of Americans who are fighting with the Islamic State. Ted Cruz has taken the plunge, so it will probably get a little more attention than if some backbencher had adopted the cause. Press statement here; text of the bill here.

Either Cruz’s staff hasn’t done its homework here or this is counter-terror showboating pure and simple. If enacted thIs bill would have effect in approximately zero cases. The law amends the loss of nationality provision of the Immigration and Nationality Act to add fighting with or giving material support to listed terrorist organization as a ground for expatriation.

The problem: as per the Supreme Court, any expatriating conduct must be undertaken with the specific intent to relinquish U.S. citizenship. To strip an ISIL fighter under this amendment, the government would have to show not just that someone had fought with ISIL, but that he consciously intended to give up his citizenship by so doing. That would be impossible to show in the ordinary case. Al-Qaeda operative Adam Gadahn is the only notable case from the post-9/11 era in which it might work: in a jihadist youTube, he shredded his U.S. passport.

The Cruz bill is a repeat of Joe Lieberman’s stillborn effort in 2010 (name change: Lieberman’s “Terrorist Expatriation Act” is now Cruz’s “Expatriate Terrorist Act”), unpacked here. You can find an elaborated constitutional analysis from a recent Fordham Law Review symposium here.

Will the U.S. Move to Citizenship-Strip ISIS Fighters?

by Peter Spiro

It’s only a matter of time before we start seeing proposals to take away the citizenship of Americans fighting for ISIS/ISIL forces in Syria and Iraq. They have drawn renewed attention in the wake of James Foley’s beheading (apparently by a British citizen) and the death, reported at length today in the NYT, of American Douglas McCain in Syria. Several hundred individuals with Western citizenships are thought to be fighting with the extreme Sunni group.

A proposal to expatriate terrorists associated with entities hostile to the United States went nowhere in 2010 when Joe Lieberman’s Terrorist Expatriation Act failed to garner so much as a committee hearing. A similar initiative might have more legs today.

The Lieberman effort had the Times Square bombing as a hook, but that just looked like ordinary crime. (There was also the problem of Joe Lieberman.) The face of the ISIL fighters is way more scary and foreign. They make bin Laden look like Jesse James — criminal, but not unrecognizable. (Bin Laden had a brother who went to Harvard Law School.) Al-Qaeda has a lot of blood on its hands, but it doesn’t go around cutting peoples heads off and tweeting the results.

The U.S. would be following the UK and Canada’s lead, both of which have adopted expatriation measures aimed at citizens fighting in Syria. That gives U.S. legislators some cover on the international human rights front. Even human-rights-pure Norway is looking to follow suit.

That doesn’t mean terrorist expatriation would make any more sense now than it did in 2010. Any punitive intent would be clearly unconstitutional under the Supreme Court’s 1958 decision in Trop v. Dulles. The law would pass the Court’s test only if the conduct was taken to reflect an individual’s intent to relinquish citizenship. In other words, the law would have to work from the calculation that fighting for ISIS evidences an individual’s desire to expatriate. (For the full constitutional analysis, see this.)

Beyond the constitutional niceties, it’s not clear what expatriation would accomplish. True, ISIS may look to weaponize adherents with premium Western passports and visa-free mobility. But you couldn’t take away someone’s citizenship for being associated with ISIS before you knew that he was associated with ISIS. Once a citizen is identified as an ISIS fighter, you can bet he gets put on a watch list. That minimizes the threat. There’s no case in which citizenship-stripping adds much to the counter-terror toolbox.

That may not stop legislators from adding expatriation to their rallying calls. Chalk it up to counter-terror showboating. But it won’t be any more than that.

Behind July 4 Naturalization Ceremonies, Three Distortions

by Peter Spiro

The naturalization ceremony is now a part of the July 4th ritual, right up there with picnics, parades, and fireworks. The script is faithfully recounted in newspapers across the country. Dignified surroundings (courtrooms, historic sites, ballparks) with presiding local luminaries (judges, office holders, public intellectuals), celebratory family members in tow. US flag-waving applicants from [fill-in-the-blank] number of countries. Short summaries of patriotic speeches, interviews with newly-minted citizens overjoyed by their new status. Perfect assignment for a cub reporter working the holiday weekend, a piece that practically writes itself.

This year was no exception, with the accelerant of President Obama’s presiding over a naturalization ceremony for active-duty military personnel (who, by the way, can pretty much become instant citizens — no residency requirement applies).

I don’t want to detract from the accomplishment that naturalization can represent (especially for those with less education, who are forced to pass tests on civics, history, and facility in the English language to attain full equality in their place of habitual residence, as well as for those with refugee status). The sentiments voiced are no doubt genuine, and for some naturalization remains a transformative experience.

But the picture these reports paint distorts the reality of naturalization today in at least these three ways:

1. Naturalization ceremonies are always so dignified. Hardly. More than half of all applicants are sworn in ceremonies at local Department of Homeland Security offices. These can be drab affairs, the proceedings supervised by lower-level USCIS bureaucrats following a strict operating-manual protocol. Think one-step up from the DMV. In some cities, deportation proceedings are being held across the hallway. (Not that court-presided ceremonies are always so dignified. See page 8 of this 2008 DHS ombudsman report for some less-than-inspiring examples; note also the use of “oathed” as a transitive verb.)

2. Applicants are mostly naturalizing for sentimental reasons. Naturalization is not about being proud to be an American. A Pew Research poll found that only 6 percent of naturalization applicants are motivated by “their sense of identity as an American or their love of the U.S.” Eighteen percent cite civil and legal rights as the primary reason for naturalization (that more closely aligns with a conventional trope that naturalization is about getting the vote). Sixteen percent are interested in the “benefits and opportunities” of citizenship, including the value of travelling on a US passport, being able to apply for certain public sector jobs, and acquiring eligibility for public benefits. In other words, many who naturalize are (quite rationally) doing it for instrumental reasons.

3. Naturalization applicants are transferring their allegiance to the United States. The vast majority of naturalizing citizens are also keeping their citizenship of origin. A clear majority of countries allow dual citizenship — according to one survey, 19 out of the top 20 source states for immigrants to the US allow naturalizing citizens to keep their citizenship. Others that don’t recognize the status fail to police against it (China for example). Only a few take dual citizenship bans seriously — Japan is probably the best example. When it comes to the July 4th accounts, it’s hard to know whether this is an implicit distortion or whether it’s just not reported on. My guess is that most native-born Americans would be surprised to discover that dual citizenship is the new normal among naturalized Americans.

So why the continuing convention of July 4th naturalization accounts? USCIS keeps up the pace, this year with more than 100 ceremonies across the country in the week leading up to and including the 4th. From a PR perspective, this is money well spent. From the reporters’ perspective, why rain on the parade? They probably understand this isn’t a battle to pick with their putatively patriotic readership (an assumption that may be thinning on a generational basis, according to this NYT report). For others, finally, it may be politically risky business to challenge naturalization tropes. For proponents of immigration reform, highlighting a less-than-pure path to citizenship is hardly going to help move the ball forward. Political and other elites, even on the progressive side, are still nationalists. So no one has much of an interest to leave the script, even if it no longer jives with circumstances on the ground.

How the Recess Appointments Case Speaks to Foreign Relations Law

by Peter Spiro

Not much surprise that the Supreme Court’s ruling in the recess appointments case NLRB v. Noel Canning would draw on historical practice, since there wasn’t much else to draw on. Breyer’s opinion in the case sets out a notable defense of practice as precedent:

[I]n interpreting the [Recess Appointments] Clause, we put significant weight upon historical practice. For one thing, the interpretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that

“a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819).

And we later confirmed that “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions” regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U. S. 655, 689 (1929) ; see also id., at 690 (“[A] practice of at least twenty years duration ‘on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning’ ” (quoting State v. South Norwalk, 77 Conn. 257, 264, 58 A. 759, 761 (1904))).

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417–450 (1998) (Kennedy, J., concurring), and that it is the “duty of the judicial department”—in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803). But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Marbury, supra, at 177.

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989) ; Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ; Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579–611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Grossman, 267 U. S. 87–119 (1925); United States v. Midwest Oil Co., 236 U. S. 459–474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892) ; McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

Strike another blow against constitutional formalism. For proof, see Scalia’s dissent cum concurrence in the judgment, which plays heavily to Chadha. Scalia sees in the majority opinion’s use of history an “adverse possession theory of executive power” (though Scalia himself is forced to play on its turf and engage the practice, including modern practice). Perhaps, such is life.

The use of history is obviously prominent in the foreign relations context, given the dearth of judicial precedent for so many foreign relations law questions (though the courts have been busy trying to fill many gaps in recent years, there are still many left unfilled). Next year’s engagement with the recognition power in Zivitovsky will surely be looking to practice, including practice post-dating the founding era, and the Noel Canning methodology gives it a recent launching point. For those who need the Court’s imprimatur on what qualifies as constitutional authority, this decision reminds us that it’s on board with history-as-law, too.

Canada Citizenship-Stripping Law (Probably) Violates International Law

by Peter Spiro

Canada last week enacted a major amendment (Bill C-24) to its citizenship law. As a general matter it makes citizenship harder to get and easier to lose. Residency periods for naturalization are lengthened and physical presence requirements toughened up, English and civics tests will apply more broadly, and naturalization fees are tripled. This on top of the elimination of the “golden visa” program through which many (mostly Chinese) secured permanent residence through investment. These moves are all well within Canada’s sovereign discretion over its citizenship practices (whether they are good policy or not is another question – for an excellent critical analysis, see this from the Canadian Association of Refugee Lawyers).

But there are two provisions are at least problematic and may violate international human rights.

1. Naturalization applicants will now need demonstrate an intent to reside in Canada after naturalization. This is a response to the phenomenon of “naturalization as exit strategy” — one we are seeing in the U.S. as well. A growing number of long-term permanent residents are naturalizing only once they want to go back home to their countries of origin. With Canadian citizenship, they know they can freely travel back to Canada to visit friends and relatives, and perhaps also to take advantage of the social welfare net (remember: Canada has universal health care). Acquiring citizenship becomes a kind of insurance. This template for naturalization is the opposite of the traditional sequence, in which naturalization is the final act of commitment to the new community. The amendment means to end it.

Some fear that the new requirement will be used to de-naturalize anyone who moves abroad after naturalization (on the theory of fraudulent intent), and in any event the requirement is likely to have a chilling effect on those who would like to. It discriminates against naturalized citizens, since native-born Canadians are free to leave the country and keep their citizenship in the process. That’s in tension with an emerging norm under which naturalized and native born citizens should be equal before the law (see for example article 5(2) of the European Convention on Nationality).

Key to how this plays out: whether it is enforced (one can imagine not at all — in the way that the naturalized U.S. citizens are never held to the renunciation oath).

2. The government gets the power to strip individuals for convictions relating to treason, spying, or terrorism. Here Canada follows a British lead. But the Canadian measure may be the more problematic. The British law extends a very broad power to the Home Secretary to revoke citizenship where it is “seriously prejudicial to the vital interests of the United Kingdom.” That would seem worse than the Canadian approach, which at least requires a conviction. But because it requires a conviction, the Canadian measure is more clearly penal — expatriation is tied to the criminal activity. The result looks like banishment. The U.S. Supreme Court long ago found the penal use of expatriation to violate the constitution, in a 1958 decision (Trop v. Dulles) that drew extensively on international law norms prevailing even in the mid-twentieth century against the penal use of expatriation.

Moreover, this ground of revocation discriminates against dual citizens. The law does not apply where it would result in statelessness, so mono-nationals are insulated. This argument has had some traction against the UK measure, which until recently at least also discriminated against dual citizens. To the extent that maintenance of dual citizenship is framed as a human right, the new Canadian law burdens it.

Both elements are already being challenged in Canadian courts. It will be interesting to see whether international law enters into the constitutional equation. In any case forgive me for suffering just a touch of legal schadenfreude in seeing our usually internationally law-abiding northern neighbor push the envelope much harder than we are. This is one context in which the U.S. probably has it right in keeping expatriation out of the counterterror mix.

Bond Cheat Sheet

by Peter Spiro

As David Kaye notes, treaty-power advocates everywhere may be breathing a collective sigh of relief with the Supreme Court’s decision in Bond v. United States. I’m not so sure how big a difference it makes, given the Senate’s persistent refusal to put an expansive treaty power to work. From an academic perspective the decision is a big let-down. No big pronouncements on Missouri v. Holland, the treaty power, the future of federalism in a different world.

On the substance, we have Jean’s excellent post below as well as Curtis Bradley’s characteristically precise analysis on AJIL Unbound. As Curt points out, the straight-up application of the federalism clear-statement rule in the foreign affairs context is significant. Perhaps a little tension with Charming Betsy? But this is incremental stuff, not the kind of ruling that marks a major pivot on the Court’s part in foreign relations law. The money quotes in the majority opinion relate to domestic affairs of a decidedly mundane kind, as Roberts decries an application of the treaty that “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”

The Court may have understood this to be too freaky a case on which to peg a major ruling (hence also the silence from the Left side of the Court). The parade of horribles may be theoretically long and broad when it comes to imagining the ways that treaties might subsume core state authorities. But when it comes to making that specter a little more concrete, Justice Scalia is left conjuring up a multilateral “Antipolygamy Convention” with which Congress then trumps state intestacy laws. Really? (Scalia is known to write his concurrences and dissents from scratch. That was once a good thing; now it may be a bad. His concurrence here has a sloppy feel to it.)

For his part, Justice Thomas walks us through the original understanding of the Treaty Power in calling for its limitation to international relations. With due respect to the many rigorous scholars of an originalist orientation, I must admit that I have less patience for this oracular stuff the older I get. It never coughs up determinate answers. (How could it, in this context perhaps more than any other.) In what should be a candidate for SCOTUS understatement of the year, Thomas concludes: “I acknowledge that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”

As foreign affairs law becomes increasingly doctrinalized, with a slew of major cases over the last 15 years, this is one area that will now remain up for grabs (the persistence of the century-old Holland decision notwithstanding). Maybe that’s not a bad thing for methodological and pedagogical purposes. As the Court plays the Marbury card more frequently (Scalia does it here), a last-word mirage rises in which the Court seems to be calling all the shots. But the new global architecture is far too immense and intricate for the Court to stay on top of it. Better to stay attuned to non-judicial mechanisms of constitutional evolution.