The Governors Do Well To Take a Stand ... Yet They Lack Power to Deny Refugees Admission to Their States

When the States created the federal government via the ratification of the United States Constitution, among the powers donated to the Congress was power to enforce the "Law of Nations."

The "Law of Nations" is a legal term of art. It refers to the customary body of laws governing relations between nations. Within the scope of the Law of Nations is the question of migration from and to other nations. Thus, whatever were the powers of the States prior to the ratification of the Constitution, with the ratification Congress received that power from the States.

So, it seems quite likely, for this reason, and no other, that the federal government -- Congress specifically -- decides the rules for immigration to the United States. Enforcement of such laws as Congress enacts regarding immigration is the duty of the Executive Branch. 

This conclusion is supported in the outcome of longstanding Supreme Court cases, although the reasoning of those cases has not looked to the Law of Nations power exclusively, and, unfortunately, has sometimes taken the view that regulating immigration is a power "inherent to our national sovereignty." That troubling formulation fails to accord respect to the role of the States in creating the federal government, and inquiring whether, and how, their original power over migration was transmitted to the federal government.

While the federal government has the power to regulate migration into the United States under the Law of Nations Enforcement Clause, the question of how to manage the current press to admit refugees from the Syrian crisis is not answered in the Constitution. Rather, the specifics of how to treat refugees is governed by federal statutes.

Under the 1980 Refugee Act, the Congress requires consultation with the States as to placement of refugees, but not approval. Settlement of refugees, however, does not mean that the States are obliged to provide material support and benefits to those refugees; in fact, federal funding is the carrot for the stick of placement. So, this administration should be consulting with the States, and this administration should give consideration to whether unwilling states are the best placement for refugees, if being so placed means not having access to federally funded support programs.

Long and short of it, the Governors are right to take a stand, but wrong to think that the Constitution grants them the power to enforce that stand to the complete exclusion of refugees into their States.

One further matter.

Because refugees are lawfully admitted to the United States, they enjoy the equal protection of the laws. That equal protection is guaranteed against federal violation by the implicit requirement of equal protection in the Due Process Clause of the Fifth Amendment, and by the express requirement of the Fourteenth Amendment's Equal Protection Clause.

A Treatise on Law is Not Law

"He that would beat a dog can easily find a stick."

Folk Proverb

"To a man who has only a hammer, everything is a nail."

Abraham Maslow

I am more than a bit taken aback by the vehemence with which Vattel devotees command a slavish devotion to Vattel's observations about the nature of citizenship, and, in particular, his articulation of the legal principle -- jus sanguinus -- under which one's fealty to a nation is derived from one's parents (thus, "sanguinus" or blood). There are dozens of websites that discuss the Presidential Eligibility Clause requirement that one must be a "natural born citizen" and invoke Vattel's Law of Nations to conclusively determine that only those persons born in the United States and to parents who were themselves natural born citizens fit the natural born citizenship requirement.

There are a panoply of arguments that fully answer the Vattelists.

Still, as they are intent on beating candidates such as Marco Rubio and Bobby Jindal, who are, under the jus soli approach to eligibility, fully eligible to be elected President, and they easily find the Vattelic stick. But that stick is not suited to the task, any more than a hammer is suited to the task of removing lug nuts, still, to those who have only a hammer (or Vattel's Law of Nations) everything is a nail (or a good time to invoke jus sanguinus).

It perplexes me. The invocation of Vattel does seem quite selective. Vattel wrote a treatise on the Law of Nations. In his treatise, he begins with the beginning of the topic of nations and he lays out in meticulous detail hundreds and hundreds legal considerations relevant to the creation and maintenance of States. Yet, out of all that Vattel writes of the Law of Nations, only jus sanguinus is invoked.

What do I mean?

Well, for example, in the Law of Nations, Vattel also discusses the wisdom of establishing public granaries. I'm including that section of his treatise below. He provides general principles of operation of such granaries that are, to say the least, inconsistent with the American preference for free market economies and individual choice in the use and disposition of one's property and labor:

§ 82. Of public granaries.

The establishment of public granaries is an excellent regulation for preventing scarcity. But great care should be taken to prevent their being managed with a mercantile spirit, and with views of profit. This would be establishing a monopoly, which would not be the less unlawful for its being carried on by the magistrate. These granaries should be filled in times of the greatest plenty, and take off the corn that would lie on the husbandman's hands, or be carried in too great quantities to foreign countries: they should be opened when corn is dear, and keep it at a reasonable price. If in a time of plenty they prevent that necessary commodity from easily falling to a very low price, this inconvenience is more than compensated by the relief they afford in times of dearth: or rather, it is no inconvenience at all; for, when corn is sold extremely cheap, the manufacturer, in order to obtain a preference, is tempted to undersell his neighbours, by offering his goods at a price which he is afterwards obliged to raise (and this produces great disorders in commerce, by putting it out of its course); or he accustoms himself to an easy life, which he cannot support in harder times. It would be of advantage to manufactures and to commerce to have the subsistence of workmen regularly kept at a moderate and nearly equal price. In short, public granaries keep in the state quantities of corn that would be sent abroad at too cheap a rate, and must be purchased again, and brought back at a very great expense after a bad harvest, which is a real loss to the nation. These establishments, however, do not hinder the corn trade. If the country, one year with another, produces more than is sufficient for the support of her inhabitants, the superfluity will still be sent abroad: but it will be sent at a higher and fairer price.

Of course, Vattelists may wish to assert that the discussion of public granaries is merely an observation of the value to be found in the operation of such an enterprise, and is not a mandatory feature of the nation.

To which I will reply, "well, yes, precisely!" For it is in the nature of a treatise that it is a thorough and careful, complete discussion of a subject. In the case of Vattel's Law of Nations, his is a treatise that treats in detail and with care the broad topic captured in its title. But the law of nations is not, nor has it ever pretended to be THE LAW OF NATIONS. Instead, it is a thorough, expository, examination of its subject.

So, again, NO, we are not bound to Vattel. We are not bound to his preference for jus sanguinus over jus soli. Happily, we can be informed of a principle without having to conform to the principle, else we must begin to build the AmGranaries, the physical facilities of the National Granary Corporation.

Vattelic Fetishism

As a lawyer with over quarter century experience in the practice of federal constitutional law, and nearly a decade teaching advanced constitutional law, I can tell you this truth: the outcome of cases can nearly perfectly be predicted by knowing what legal standard a court will apply to any particular question. Like a student writing the results of a lab experiment before, or without, actually conducting the experiment, the outcome of many cases is entirely predicated on the test adopted by the court deciding the case. For example, in cases alleging violations of the right to freedom of speech, when a court announces that the case is governed by the strict scrutiny standard, the chances are extremely good that a government injury to freedom of speech will be found. On the other hand, when the court states that it is applying the reasonableness test, the chances are very good that whatever government action is in dispute will not be found to violate the right.

It is really just that simple. We can tell where others will have us end up by paying attention to the path on which they invite us to walk. Reasoning through disputes over the eligibility of various candidates to be President of the United States is a like experience.

In one camp, relying on English common law, some will contend that a person is a natural born citizen if they are born on United States soil. In the other camp, relying on Emmerich Vattel’s Law of Nations, some will contend that a person born on United States soil is not a natural born citizen if the person’s father is not a citizen of the United States. As the birther movement waxed in the earlier days of the Obama administration, those that depended on the outcome promised by applying principles from the Law of Nations began the torturous work of reconstructing the American Constitution to suit their theories.

Vattel’s Law of Nations, an eighteenth-century treatise, has enjoyed something of a renaissance in the last six years. Not a broad one, across the Nation, the renaissance for this author came from one quarter, namely activists opposed to Barack Obama’s election to the presidency, whose opposition results from their view that Obama is ineligible because he is not a “natural born citizen.” I have discussed this constitutional prerequisite here, here and here. Those activists invoke Vattel because he espoused the principle of jus sanguinus, the rule that one takes the citizenship of one’s father, a principle they have concluded should govern determination of citizenship for the United States.

Invocation of Vattel’s work as a talismanic determiner of citizenship, however, falls flat. True, in the Law of Nations, Vattel states the principle of jus sanguinus. True, jus sanguinus makes the all important questions in deciding citizenship, who is your father and of nation is he a citizen? But, despite the value found by many of the framers in Vattel’s orderly explication of natural law, his views do not now, nor have they ever, governed the disposition of legal questions in the United States.

First, jus sanguinus is contrary to the rule of English common law. Under English common law, one’s standing within the civic community was determined by jus soli, which makes the all important question, not who is your father, but where were you born? (This fact is incontestable: English common law limited status as “natural born subjects” to those persons born on English soil. Parliament enacted statutes to extend that status to persons born away from England because that status was denied to them by common law.) The significance of the English common law approach, adopting jus soli, appears in the following paragraph.

Second, at independence, all thirteen original States of the union by their constitutions, statutes, or judicial decisions, adopted the body of English common law for the decision of legal questions. So called Reception Statutes accomplished the adoption of English common law. Here are the Reception Statutes, or Constitutional Reception Clauses, of Virginia, Delaware, New York, North Carolina, Pennsylvania and Massachusetts. Some in the “birther” movement contend that Vattel’s Law of Nations governs citizenship because it contains an early reference to “natural born citizens” and defines them according to jus sanguinus. They even bolster the claim with the assertion that America is not an English common law nation. That latter claim they bolster by quoting George Mason, who, in a rhetorical flourish made during the Virginia Ratification debates, denied that the common law of England was the common law of the newly independent States. Virginia, as the link provided above demonstrates, enacted a Reception Statute. Virginia, of course, was George Mason's home.

A distaste from Barack Obama does not warrant the flight of fancy required to impose Vattel’s continental views on these Englishmen who had just become the new Americans. Moreover, even were Vattel relevant at our founding, those who depend on him, and on jus sanguinus, fail to account for an intervening fact of constitutional dimensions: ratification of the Fourteenth Amendment. That amendment, a tonic to the erroneous Dred Scott v. Sandford decision, defined citizenship and, for the first time, ensconced a definition of “citizen” where neither Congress nor Vattelists can dislodge it with ease:  in the Constitution. Ultimately, it appears that insistence that Vattel’s views govern these issues for the American republic are mere obstinancy, and approaches fetishistic dimensions.