Null and Void: Unconstitutional Laws

In my last article, I wrote of the Executive Branch’s responsibility to enforce all laws passed by the legislature.  Failure to do so means that the Executive (whether Governor or President) is not doing his or her job.  However, I was at dinner the other night with a friend that studies constitutional law when she posed this question in response.  If a law is passed by the legislature that is in clear violation of the US Constitution (or even a state constitution), does the Executive have a responsibility to still enforce the law?

PREVIOUS ARTICLE: Executive Responsibility to Enforce Laws

My response to her question was to quote conservative columnist George Will who once stated on This Week with George Stephanopoulos that no law is unconstitutional until it is ruled so by the courts.  And though my response seemed to move the conversation in an entirely different direction, it still had my mind thinking about it.

According to the legal encyclopedia American Jurisprudence,

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)

Though in my previous article, I was basically discussing the topic of same-sex marriage, in this instance I will use a couple of other topics.  Let’s say a state legislature decides to take away a woman’s right to vote or brings back segregation laws.  The nation has already decided these two issues.  A woman is guaranteed the right to vote via the 19th Amendment to the US Constitution.  And segregation laws were ruled unconstitutional based on the Equal Protection Clause of the 14th Amendment.

So are these laws automatically unconstitutional  or do they need to be ruled so by the courts yet again since they pertain to different laws?  This is also somewhat being played in the Religious Freedom bills that are coming up in states like Arizona that would allow people/businesses with severe religious convictions to deny services to LGBT people.

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These laws would seem to be quite similar to the old segregation laws and would be in clear violation of the Equal Protection Clause of the 14th Amendment in the same way.  So if they are enacted, does the Governor or state Attorney General have the responsibility to defend these laws in court?  The definition found in the American Jurisprudence would indicate ‘no’ since the law is already null and void.

When it comes to the federal Executive (the President), remember the oath of office he/she must take: “[…] preserve, protect and defend the Constitution of the United States.”  And though the oaths of office for the various state governors might be different, they are still similar in their overall message… to uphold their state constitution and must still uphold the US Constitution as no law may violate that document.

Some laws are a bit murkier, and the courts need to make a decision regarding its constitutionality.  But when it comes to laws that are in clear violation, it would seem the government doesn’t really have the responsibility to defend the law in court (or even enforce the law) as the law is already null and void from the start.

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By Order of the Executive

With any administration, we tend to hear from time to time the mention of Executive Orders being issued by the President.  Even in his last State of the Union speech, President Obama stated that he would use Executive Orders to move things forward where he could when Congress could not or would not act.  But what are Executive Orders and what can a President do with them?

No where in the US Constitution does it mention Executive Orders.  The most basic definition is that they are orders to help officers and agencies of the Executive Branch enforce the laws that are passed by Congress.

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Article I, Section 1

The President cannot use Executive Orders to legislate though under Article II, Section 3, Clause 2, he is allowed to make suggestions to the Congress on legislation.  Under Clause 5 of the same Article and Section, the President must “take care that the laws be faithfully executed” that are passed by Congress.

All Presidents dating back to George Washington have issued orders that can be counted as Executive Orders even though they didn’t officially have the name.  Washington’s first one stated that the US was remaining neutral in the war between France and Great Britain.  The numbering system we use today when referring to a specific order was not done until later, though they have been retroactively back-numbered to an order issued by President Abraham Lincoln in 1862.  Since a Supreme Court decision in 1952, Presidents have also made sure to cite which specific laws they are acting under when they are issuing the Executive Order.

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Though the President cannot use Executive Orders to make laws, the orders can still have a very wide-range effect.  President Harry Truman issued an Executive Order to integrate the armed forces, and President Dwight Eisenhower issued one to integrate public schools.  Executive Order #9066 was issued by President Franklin Roosevelt for the relocation of Japanese-Americans and German-Americans living in war zones during World War II.  He claimed it was within his power under his military authority.

Lately, there has been criticism from Republicans as President Obama has signed several Executive Orders that delay certain parts of the Affordable Care Act (ACA) even though the law makes no specific mention of the President having that ability.  Their claim is that the President is “cherry-picking” which part of the law to obey and which not to.  Executive Orders cannot violate the laws passed by Congress or the responsibilities delegated to the Executive Branch.

But with no clear constitutional authority, where is the line drawn for an Executive Order?  The Supreme Court ruled in Humphrey’s Executor v. United States that the President must obey the law.  He/She has no authority under the Constitution to suspend the enforcement of the law.  By this definition, the President’s actions described above in regard to the ACA are not valid without congressional approval.

So when any President states that he/she is going to issue an Executive Order to do something, one must not blink.  We must make sure that it falls within the responsibility of the President in executing laws passed by Congress.

“Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
Justice Robert H. Jackson

To Get Our Financial House In Order

Long Term Reform Instead Of “Kicking The Can”

Out of Washington, we tend to hear the same old stories.  Republicans want to cut spending and not raise taxes.  Democrats want to tax the rich and not let Republicans touch the entitlement programs.  Tea Party Republicans just want to defund the Affordable Care Act.  In a divided government, it has managed to get us into one stalemate after another.  This last time, it finally shut down the government and nearly brought us to the brink of defaulting on our debt.  Obviously, there are some common sense things that can be done to help move our government from the way it currently governs.  Instead of just “kicking the can” on each fiscal/economic crisis, it can easily put this together so we aren’t constantly facing the same problems.

The first thing our politicians must do is talk to each other especially people from the other side of the proverbial aisle.  This is a must.  We have a Republican-controlled House of Representatives and a Democratic-controlled Senate and President.  This means that everyone must work together.  It shouldn’t be about scoring political points or who’s right or “who’s winning.”  It’s about doing the work of the nation, and doing what the people need you to do.  Will there be times that we disagree on things?  Of course, but we can still be civil with our disagreements and work our way around them.  It all begins with respect and dialogue and knowing that neither side is going to get everything that it wants.  It’s called compromise, and it’s not a dirty word.  It is how this nation was founded.  The Constitution is one big compromise.  We should not lose sight of that fact.  We should respect it in our history and in the present.  Is it perfect?  No.  The Missouri Compromise and the Compromise of 1850 only delayed the start of the Civil War.  Compromising on the issue of slavery was just not going to work, but the effort was given.  When talking about our fiscal problems, compromise can work though much like the compromises that forged the very document upon which our government was formed.

new-congressSo now that we have the politicians talking to each other, what should they be talking about?  One word: budget.  The House of Representatives is correct in that it has passed a budget every year since Republicans took control in 2011.  The Senate has killed those budgets every time.  For the 2013-14 budget, the House stuck an amendment onto it that forced the Senate to pass a budget or not get paid.  Technically, that amendment would have been unconstitutional via the 27th Amendment.  However, it did get the Senate to pass a budget which the House then passed over.  Speaker of the House John Boehner (R-OH) then declared there would be no conference and the rest, we now know, is part of history.  Being controlled by different political parties, the two chambers are bound to come up with different budgets based on their party’s political views; however, they must remember the other side is controlled by the other party.  If all one side does is pass a budget that they know the other side won’t agree to then we aren’t getting anywhere.  Both chambers need to pass a budget that the other side will start working on with them.  This particularly goes to the House since all appropriation bills must start in that chamber via the US Constitution.

We are making progress.  Now they are talking to each other about the budget.  But now what is in that budget?  (Quick note: Some of these are just ideas and mentioning them does not mean ‘yes’ or ‘no.’)  The budget needs to start backing us away from the debt ceiling or it will need to be raised continuously and doesn’t solve the problem.  The debt ceiling must be raised each time because we have an obligation to pay for the things that Congress and the President spend money for.  But with the right budget, the nation can begin to back off the debt ceiling.  If Congress cannot work together to pass a budget through both chambers each year, then they should not be paid for that year as passing spending resolutions is one of their key tasks. (Note: This last part would only take effect after an election per the 27th Amendment.)

Let’s start with funding the various government departments.  The sequester cuts must remain in place though each department should be allowed where to make those cuts.  In addition, it wouldn’t hurt to at least take another 5% from each department.  There is plenty of waste in each department to do this. (click here)  With the new funding levels, departments will still lose money, misappropriate funds, or just waste it away.  When this becomes known, then that particular department would lose that specific amount of funding for the next budget year in order to repay the taxpayers and would lose any chance of an increase in their budget (minus returning to their previous level once that year is complete) for the next five years.  No department likes to lose money, so hopefully this will make them become more aware of how it is spent.  Automatic budget increases must be stopped.  Increases in funding should be determined by the economy, income, and how each department manages its current funding.  This would apply to all departments including defense (which could probably withstand an additional 10% cut instead of the 5% mentioned above).

tax-pressuresThe government is funded through various taxes… one of which is the income tax.  (Before income tax was made legal, the government was mainly funded from a sales tax on alcohol.)  Our tax code is a disjointed mess to say the least.  There needs to be tax reform both income and corporate.  This means that some will be paying less and some will be paying more.  In regards to income taxes, leave them at the levels they are currently with the exception of the top 1%.  As part of the sequester deal, the very, very top of the 1% saw an income tax increase but not the rest of the 1%.  Bring the rest of them into the fold.  Next are corporate taxes.  The US does have one of the highest rates in corporate taxes.  This should be brought down to a respectable level to make corporations headquartered here to be competitive internationally and also attract those foreign companies to locate jobs here.  Our politicians should also be open to finding new sources of revenue.  These sources could come in the form of legalizing medical marijuana and taxing it accordingly or leasing out certain federal lands  for renewable energy such as solar and wind.  Maybe they could sell of some of their property they are underutilizing, and maybe even sell some land back to the states.  There are plenty of ideas that can fit into this and should be independently explored openly.

Notice that I didn’t discuss individual departments.  That’s mostly because this would have gotten rather lengthy, even if there had only been a few examples.  This was a blueprint in order to get the two sides talking about some common sense ideas.  It’s not about political points or who’s winning.  It’s about doing their jobs and doing what the nation needs them to do.  We have to get our financial house in order; otherwise, we are going to continue to go around in the same circle that we have been for the past few years.  The latest government shutdown and nearly defaulting on our debt once again should teach us this lesson.  Our politicians need to wake up and take care of business.

Defining “Natural Born Citizen”

The Debate Over Who Qualifies To Run For President

In order to qualify to be President, the US Constitution states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”  So what defines a “natural born citizen.”  The answer has not been so simple over the years.  The framers left it fairly vague and up to us to interpret throughout our history, and it is an issue that has gone back and forth.

This has all been brought into question as a result of one man whom various media outlets have kept an eye on that he might try to run for President in 2016.  The man in question is freshman Senator Ted Cruz (R-TX).  Cruz was born in Canada to an American mother and a Cuban father.  His parents were working in the oil business there.  (This will be addressed later on.)  Cruz’s father did not become a US citizen until 2005.  So though he has made trips to Iowa and the media seems to be watching him quite closely, does he even meet the qualifications of being a natural born citizen?

145731159_640Section 1 of the 14th Amendment to the US Constitution states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  This still only leaves a very vague definition for what constitutes a natural born citizen.  So now we look toward Section 5 of the 14th Amendment which states, “ The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  It should also be noted that under Article 1, Section 8, Clause 4 of the US Constitution, Congress has authority to create law regarding naturalization which includes citizenship.  So now we know that Congress, under the 14th Amendment, can write legislation declaring what constitutes a natural born citizen.  And yes, that means that there will be legal challenges and the US Supreme Court (SCOTUS) will have to make sure such legislation does not violate the Constitution in any way… including Section 1 of the 14th Amendment.  In the case Minor v. Happersett (1875), the Court ruled, “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.”

Now though the Constitution is vague in what constitutes a natural born citizen, Congess has stepped in to attempt to fill in the gap.  Under Title 8 of the US Code, Section 1401 defines the following as citizens of the United States upon birth… or natural born citizens:

  • Anyone born inside the United States.  The person must be “subject to the jurisdiction” of the United States.  (This would exempt the child of a diplomat, for example, from this provision.)
  • Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person’s status as a citizen of the tribe
  • Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
  • Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
  • Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
  • Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
  • Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)

By the conditions just laid out, it would appear that Senator Ted Cruz is not eligible to run for President as he would not qualify as a natural born citizen since only one of the parents was a citizen of the US.  However, there still exists one more historical clause which will challenge this argument.  The clause states, “a person born before May 24, 1934 of an alien father and a US citizen mother who has lived in the US” is a citizen.  Does this change the argument?  If it is grouped with Section 1401 of Title 8 of the US Code, then it would appear so.

Currently, citizenship in the US is governed by the Immigration and Nationality Act of 1952.  The most recent changes to statutory law was done by Congress in 2001.  So since this most recent debate has circulated around Sen. Cruz, I am going to focus on one particular section… birth abroad to one US citizen.  There are a certain set of rules for those born after November 14, 1986, but I’m focusing on the rules at the time of Cruz’s birth which are the rules that were in effect from December 24, 1952 – November 14, 1986.  A person born abroad between those dates is a US citizen upon birth if all of the following are true:

  1. The person’s parents were married at the time of birth
  2. One of the person’s parents was a U.S. citizen when the person was born
  3. The citizen parent lived at least ten years in the United States before the child’s birth;
  4. A minimum of 5 of these 10 years in the United States were after the citizen parent’s 14th birthday.

By these very definitions of the law, it would appear that Sen. Cruz is a natural born citizen and thus meets the qualifications to run for President if he decided to do so.  This also does one more thing, as well.  In regards to President Obama, if the “birther” theory had been proven correct (and I’m not saying that it is) in that he had been born in Kenya (instead of Hawaii) to his US mother and his Kenyan father, he would still qualify as a natural born citizen.

image005As I stated at the beginning, this issue is a complicated mess.  The Framers left it vague when they wrote the Constitution.  Did they do it because they couldn’t foresee our future situations or was it so we could make such a determination as our nation progressed?  One can only really speculate on that.  Regardless, we have done our best to set forth a definition, and one that holds for all Americans… born here and born abroad.  The laws have changed throughout our history, and they will probably change again in our future.  For now, we go by the laws which we have… the laws in which we live by… the laws that govern our society.  They apply to us all equally.  In this confusing mixture, I hope there has been some small sense to the issue and that now we can have a better understanding of it.

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