Ambiguity, the Chevron Doctrine, Kavanaugh, and ‘Birthright Citizenship’

by Jon N. Hall11/18/18
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’re 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 10, The Heritage Foundation ran “Trump Hits Another Home Run With Supreme Court Pick Brett Kavanaugh” by John Malcolm and Elizabeth Slattery.

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

On July 16, The Hill ran “Chevron deference doctrine should not be a factor in Kavanaugh confirmation process” by Meryl Chertoff.

On July 24, Mother Jones ran “How Brett Kavanaugh Could Cripple the Next Democratic President” by Pema Levy.

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, of 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 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/analyst from Kansas City. • (137 views)

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18 Responses to Ambiguity, the Chevron Doctrine, Kavanaugh, and ‘Birthright Citizenship’

  1. Timothy Lane says:

    Laws are ambiguous because the English language is ambiguous, and the English (and probably any other) language is ambiguous because words have multiple, and sometimes even opposite, meanings. The word sanction can refer either to permitting an action or to punishing it. Most likely it started with one meaning, later added the other, and will eventually drop the less-common meaning. But right now it’s very ambiguous.

    Words also change meaning over time. One reason I was interested in the Night at the Museum movies was an ad for the second in which Ivan the Terrible complains that his sobriquet, properly translated, was actually the Awesome. The word terrible meant “awe-inspiring” as in “terrible as an army with banners”. The meaning has now virtually disappeared today. Similarly, the word “rede” meaning counsel is now extremely archaic, so the meaning of Ethelred the Unready isn’t quite what it was at the time. It was actually more like Ethelred the Unrede, and thus is related to Harald Hardrada, whose 1066 defeat at Stamford’s Bridge opened the door to William the Bastard.

    I once read that a “well-regulated” army referred to an army of citizens rather than (as was the case most notably in Prussia) one of mercenaries and other foreigners. This would provide a different perspective on the “well-regulated militia” of the Second Amendment. That’s one of the main purposes of originalism in the interpretation of the Constitution.

    The biggest problem isn’t accidentally ambiguous language; it’s deliberately uncertain or ambiguous writing. This way, Congress passes vague, “feel good” laws that can then be “interpreted” by bureaucrats who in reality are making laws. The proper way to deal with this is to resurrect the precedent of the Schechter Brothers case, which declared the National Recovery Administration unconstitutional because of the vague language explaining the basis for its regulations. (FDR was MOST unhappy about this decision and the conservative justices who led the way — although the decision was in fact unanimous. Even liberal justices such as Louis Brandeis agreed.)

    • David Ray says:

      I heard the audio version of 1066 by David Howarth ten years ago.
      It was such an exceptional book that I bought the written version from Half-price Books later on.

      • Brad Nelson Brad Nelson says:

        Here is that book at Amazon: 1066: The Year of the Conquest. There is a hardcover and paperback version of it. I don’t see a Kindle version of it.

        • Timothy Lane says:

          I believe this is the history of the campaigns that year that I read some time back. The cover looks vaguely familiar, and it’s certainly old enough. I believe this may have been the first known appearance of what became known as Halley’s Comet, which naturally was seen as a major omen.

  2. Kung Fu Zu Kung Fu Zu says:

    Though it may be the envy of the free world, America’s legal system is not perfect.

    Sorry, this is another conceit that Americans are wont to imagine. Something like, “We have the best medical system in the world.” Maybe we do, if you have a whole lot of money and are located in a major-metropolitan area. But there are excellent medical systems in places as far-ranged as Singapore and Germany.

    As to the American legal system, it is frankly a joke. Try suing someone today in court. Even a short simple suit can cost tens of thousands, and more likely hundreds of thousands. Then if you win a law suit, try collecting the money “awarded” you. Another joke. Winning a suit is only the first step.

    The American system strongly favors the government, the wealthy and lawyers. If you are middle class or poor, and you have to fight a large corporation, wealthy individual or government you are at a distinct disadvantage.

    Around thirty years ago, I read some study in Forbes or Business Week, which stated that the ridiculous legal system in the USA (meaning crazy liability cases, etc.) cost the equivalent of something like a 3% national sales tax on all goods and services. That is a huge drag on the economy.

    During the same period, I recall that Japan had about 60,000 lawyers for a population of about 125 million while the good old USA had 800,000 lawyers for a population of about 240 million. Lawyers have to earn a living too, so you know what they do. Cause trouble and charge others for it.

    Frivolous lawsuits are constantly brought with no chance of sanction against those who bring them. Shyster lawyers bring class action suits which if won, pay out peanuts to the individuals supposedly represented by these suits, but millions to the lawyers. I could go on, but won’t.

    The law, like much in this country, including many good intentions and ideas, gets taken to the limit and twisted beyond recognition and finally reaches a point where a positive good has spawned a good deal of bad.

    • Timothy Lane says:

      Mark Steyn has written a lot of articles on his legal misadventures. There’s the Michael Mann defamation suit against Steyn for telling the truth about Mann, which has been in a DC court for longer than anyone can remember. And he also won a suit against CRTV, only to have them try every trick to keep from actually having to pay off.

      It has been noted that as you get more of any type of business in time, the less each makes. But the more lawyers you add, the richer each gets. And we have half the world’s lawyers — and you know where that money comes from.

      • Kung Fu Zu Kung Fu Zu says:

        By in large, I still have to agree with Dick the Butcher.

        • Timothy Lane says:

          Since Dick (imagine repeating the name on Disqus) was one of Jack Cade’s rioters, it’s debatable that Shakespeare himself did. But they weren’t so infested with lawyers in 1600 England.

    • Rosalys says:

      “Something like, “We have the best medical system in the world.” Maybe we do, if you have a whole lot of money and are located in a major-metropolitan area. But there are excellent medical systems in places as far-ranged as Singapore and Germany.”

      My brother was going to a dentist who screwed him over royally. He needed an implant and had the tooth pulled. Instead of putting in the implant he did a whole bunch of non essential dental stuff, which used up all his allotted insurance benefit for the year. Doc told him, sorry, but he’d have to wait a year for the implant. Plus, even with the insurance, his co-pay was a good chunk. So he made an appointment with a new dentist – in Costa Rica. Despite the fact that his insurance wouldn’t cover it, he had not only the implant, but an old crown replaced, a cleaning, and one or two other things. The total cost came to about half of what the implant alone would have been by Dr. Unscrupulous; that included the airfare and the hotel he stayed in, and he did all the work in one visit! He had to return a few months later to get the “tooth” (the implant has to heal first,) but still the total came to less. And he flew down, got fitted for and received his tooth, and was back home in three days. It is a state of the art facility, where they do it all there.

      When I had my implant, I went to a specialist. Then a few months later I went back to my regular dentist to have the impression done for my new “tooth.” He doesn’t make teeth, so he sends it out. Four weeks later I go back to have it put in, only to find that the tooth was made wrong, so I had to wait another four weeks.

      Because this tooth was my upper right front, I was offered this thing called a “flipper,” which is sort of like a retainer with a prosthetic tooth attached. It cost $400, and was so uncomfortable I couldn’t wear it! (If you are ever in this situation I don’t recommend it.) I had to spend about five months walking around with an Alfred E. Neuman smile (though I believe Alfred E’s missing tooth is on the left.) This didn’t really bother me. In fact it was kind of fun to freaking out a few unsuspecting folks. I’d say my co-pays for this came to about the same as what my brother paid for all of his procedures.

      This is what medical tourism is all about!

      • Kung Fu Zu Kung Fu Zu says:

        I believe I mentioned my kidney-stone case, sometime back. I had the procedure done in Singapore on the latest machine with a young doctor who had just returned from an 18 month specialist course in Canada for less than US$3,000, including the flight there and back. In fact, the only out of pocket I had was the flight and about US$300 for some x-rays and incidentals, as my wife had a Singaporean “Medisave” account at the time.

        The doctor in Plano estimated the cost for the same procedure on an older machine would be between US$12-15,000. What a ripoff.

        • Rosalys says:

          My Dad was in and understood the insurance business, inside out. Decades ago he was predicting the mess we have now and often said that the way to fix the cost of medicine was for everyone to cancel their health insurance. This idea terrifies people, but the truth is, if no-one had health insurance, (except for a catastrophic plan, which I’m not sure you can even get nowadays) the costs would come way down to where your average Joe could afford to be a little sick once in a while.

          I had one of my molars (broken – I have to give up eating those partially popped corn kernels, 🙁 which causes me much sadness) drilled away Monday in preparation for a new crown. I have to wait two weeks to get a permanent crown. If I’d gone to Costa Rica I would be all done, plus I could have had my cracked filling replaced at the same time (which I have to go back and have done in January,) and I’d be returning home in time to cook my turkey. I’m sure it would have cost me much less, but I didn’t consider it. I actually kind of like my dentist, and we’ve been taking way too many trips lately, and I’m a home body. Excuses, excuses!

          • Kung Fu Zu Kung Fu Zu says:

            I had one of my molars (broken – I have to give up eating those partially popped corn kernels, which causes me much sadness) drilled away Monday in preparation for a new crown.

            I had the same problem once. Thank God it was many years ago when a partial gold crown did not cost so much. I am very careful with the little popcorn I eat nowadays.

            Major-medical insurance was inexpensive in Asia. It was also pretty reasonable in the USA when I moved back almost twenty years ago. They started expanding the things it covered and it started getting more expensive; so expensive that I dropped all medical insurance at one time.

          • pst4gop says:

            Every time you put barriers between consumer and provider, you must pay for those barriers. You are correct, insurance is the problem and government insurgence is just a bigger and more expensive barrier.

  3. Kung Fu Zu Kung Fu Zu says:

    The clause in the 14th amendment which anchor-baby proponents pin their claims on is:

    “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.

    Even given the ambiguous nature of language, it should be clear that the key words within this clause, which focus in on which people are U.S. citizens, is “and subject to the jurisdiction thereof.” Now, this clause clearly indicates that not everyone born in the U.S. is automatically a U.S. citizen. If this were not the case, the opening clause of the 14th amendment would read:

    “All persons born or naturalized in the United States are citizens of the United States and the State wherein they reside.”

    For example, that a visitor to the USA is subject to American laws goes without saying, but his presence in the USA does not automatically make him a citizen. It merely means that any visitor to our country must obey our laws regardless how different they may be from his own country’s. This is a well understood legal practice which is followed throughout the world.

    So the phrase, “and subject to the jurisdiction thereof” would be redundant if the writers of the 14th amendment meant anyone born here automatically became a citizen. The inclusion of the phrase means that the writers of the 14th amendment meant to narrow the actual field of people born in the USA who were automatically given citizenship, i.e. simply being born in the USA did not automatically bestow citizenship on a person.

    This undercuts the claim by those saying that anyone in the U.S. is under the “jurisdiction” of the U.S.A., therefore anchor babies are citizens.

    The only reason there is any question about this is that our dishonest rulers, with lawyers in particular, are doing their best to lie and cheat the legal citizens of the U.S.A.

    • Timothy Lane says:

      Apparently the main concern at the time was (untaxed) Indians who lived within the US but as members of separate nations and official foreign diplomats (as well as invading armies). Different people make different arguments as to whether it was intended to include immigrants, but SCOTUS eventually ruled that it did. On the other hand, no decision has ever covered illegal immigrants. At the time they passed the 14th Amendment, I don’t know if there even were any. And a good case can be made that they aren’t “subject to the jurisdiction” of the US.

  4. Kung Fu Zu Kung Fu Zu says:

    And a good case can be made that they aren’t “subject to the jurisdiction” of the US.

    I think there is a prima facie case that they weren’t. As I say, if they were, the writers of the 14th amendment would not have included the phrase, “subject to the jurisdiction” of the U.S. Foreigners visiting America are required to abide by American statutes while in America, but are subject to the jurisdiction of their home countries, not the U.S. For example, a young Singaporean male may be visiting the U.S.A. He must obey American laws, but upon reaching the age of 18 he is legally bound by his Singaporean citizenship and law to return to Singapore to fulfill his National Service obligation. He has no such obligation to the U.S.A.

  5. Rosalys says:

    I was unaware of this Chevron Doctrine. My Dad used to tell of an older court ruling that a law could be voided for vagueness. I don’t know what it is, but it makes sense, because if a law could be interpreted in any number of ways, how can one be expected to follow it? Anyway, nobody should be interpreting any laws – unless it’s written in a foreign language. They should be upholding them. And words do change their meaning, that is why “original intent” is important. Nowhere in the Constitution is it allowed to amend it by simply changing the current definition of words, which is something which the Left, through its “Living Document” doctrine, has been dedicated doing.

    • Timothy Lane says:

      Probably the Schechter Brothers case. The National Recovery Administration had the right to write regulations (in cooperation with private businesses, an example of Mussolini-style corporatism) with only vague generalities as their basis. On a very important day, SCOTUS announced 3 anti-New Deal decisions, of which this was the most important.

      Back when I was writing for Salem Press, I did several entries for The Thirties in America. One was a history of the National Recovery Administration, another was a biographical article on Chief Justice Charles Evans Hughes, who wrote the Schechter decision, and another on the 3 SCOTUS decisions that day. (I also did one on the Gold Clause Cases. The library at the Brandeis School of Law at U of L was very helpful.)

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