Ambiguity, the Chevron Doctrine, Kavanaugh, and 'Birthright Citizenship'

Though it may be the envy of the free world, America’s legal system is not perfect. One of the reasons for its imperfection is that our laws are written with imperfect language. And what are laws if not language? Judicial review was established, in part, to decide what the laws made with imperfect language mean. When you take judicial review to the max, you’ll be standing before SCOTUS, the Supreme Court of the United States. And the nine justices that make up that tribunal will be scrutinizing your language out the yingyang.

One of the things the justices will be on the lookout for is ambiguity. There are two types of ambiguity. There’s the equivocal, where statements can be interpreted more than one way. And then there are statements that are uncertain or indefinite. Americans should not tolerate laws that are ambiguous, because breaking laws entails punishment. If the folks are to know where they stand with the powers that be so that they can avoid punishment, laws must be unambiguous, i.e. univocal and clear. There should be no question as to what a law means.

One precedent used by the high court to decide the fate of laws which exhibit ambiguity is the doctrine called the “Chevron deference,” which arose out of a 1984 case involving the energy giant. This doctrine holds that if a provision of a law is found to be ambiguous that deference can be given to administrative agencies in its interpretation.

Could the ruling in the Chevron case have gotten to the same place, allowing the EPA to continue regulating as it had been, without creating some newfangled doctrine enshrining, of all things, ambiguity? After all, the Chevron doctrine has become a pillar of the “administrative state,” and it’s an invitation for lawmakers to deliberately write ambiguous laws that can be interpreted however swampy bureaucrats want. On July 13 at Townhall, David Harsanyi wrote:

Chevron deference […] allows administrative agencies to ignore their legal charge and have free rein to interpret statutory authority in virtually any way they please. Few things undermine the socialist agenda more than limiting our regulatory agencies' ability to lord over the economic decisions of Americans.

Ambiguity and the Chevron doctrine figured in a case involving the ACA that made it all the way to SCOTUS: King v. Burwell (2015). Obama’s lawyer argued that the clause “Exchange established by the State” is ambiguous. One could say that in King, ambiguity rescued ObamaCare. In his dissent, Justice Scalia ably dissected the incoherence of the Court’s ruling, asserting: “If that is all it takes to make something ambiguous, everything is ambiguous.”

The Chevron doctrine has its critics, which include the Court’s newest member, Justice Brett Kavanaugh. Several articles concerning Kavanaugh’s position on the doctrine began rolling out immediately after his nomination on July 9:

On July 10, E&E News, an organization focusing on energy and the environment, ran “Would Kavanaugh limit the Chevron doctrine?” by Amanda Reilly.

On July 12, the Washington Times ran “Judge Kavanaugh and the ‘Chevron deference’” by Randolph J. May.

On July 26, SCOTUSblog ran “Judge Kavanaugh on administrative law and separation of powers” by Christopher J. Walker.

On July 30, the Hoover Institution ran “Kavanaugh And The ‘Chevron Doctrine’” by Michael McConnell.

On August 13 at Reason, the Volokh Conspiracy ran “Overturning Chevron Would Not Gut the Administrative State—but It Would Strengthen the Rule of Law” by Ilya Somin.

On September 6, The Regulatory Review ran “The Ambiguity in Judge Kavanaugh’s Chevron Critique” by Cary Coglianese.

If “Exchange established by the State” is ambiguous, then what about this string: “and subject to the jurisdiction thereof”? That is, or course, the clause in the first sentence of the 14th Amendment at issue in so-called “birthright citizenship” for the children of foreigners. As various legal scholars have interpreted the clause in conflicting ways, it would seem to be ambiguous and therefore fall under the ambit of the Chevron doctrine.

In the final days of the midterm campaigns, with the Honduran caravans on the march to our border, President Trump raised the possibility of changing birthright citizenship through an executive order, or EO. Some have suggested that the better path to clarifying that pesky clause in the 14th Amendment is either legislation or another amendment. But those alternatives seem unlikely now that the House will soon be controlled by Democrats (who want a new electorate).

Unless the lame-duck House passes a measure before January, an executive order seems the only path to changing our practice of awarding citizenship to the children of illegal aliens. Such an EO would probably be throttled by some lefty judge on a lower court. But the president would appeal, and with our now more conservative Supreme Court, we might get some finality on this festering problem.

Several recent articles have explored ending birthright citizenship for the children of foreigners. If you want something with attitude and irony, read Anne Coulter’s “The True History of Millstone Babies,” which Human Events ran on October 31:

Congress had to pass a separate law making Indians citizens, which it did, more than half a century after the adoption of the 14th Amendment. (It’s easy to miss -- the law is titled: “THE INDIAN CITIZENSHIP ACT OF 1924.”) Why would such a law be necessary if simply being born in the U.S. was enough to confer citizenship?

On November 2, National Review ran “Why Trump Can End Birthright Citizenship by Executive Order” by Hans A. von Spakovsky, who makes a distinction between territorial jurisdiction and political jurisdiction, noting that foreigners present in our land cannot be conscripted into our military, cannot be called for jury duty, etc. Mr. Spakovsky seems to think that the president has a duty to end the current practice (italics added):

Andy [McCarthy] correctly says that a president cannot “unilaterally change an understanding of the law that has been in effect for decades under a duly enacted federal law.” But that assumes the “understanding” is the correct one. If that understanding actually violates the plain text and intent of the law, the president as the chief law-enforcement officer can, and indeed has an obligation, to direct the federal government to begin applying and enforcing it correctly.

Spakovsky assures us that were Trump to issue an executive order to end birthright citizenship, that there is no question that the government would be sued. But that’s exactly what one would hope for, because a suit gets one to the Supreme Court where now sits one Brett Kavanaugh, who looks askance at ambiguity.

Jon N. Hall of ULTRACON OPINION is a programmer from Kansas City.

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