Wednesday, April 17, 2019

Ask the Professor Part 1: Did the Fifth Amendment Impliedly Repeal the Natural-Born-Citizen Requirement for the Presidency?

by Michael C. Dorf

Today I'm inaugurating a new series of occasional blog posts in which I answer questions from readers. As those of you who visit the blog directly may know, I often respond to interesting questions or criticisms that readers pose in the comments, but I have found lately that between the comments section, social media, and email, I've been getting a fair number of interesting questions that call for a response on the blog. Rather than try to force my answers into the news cycle, I will from time to time simply reproduce a reader's question and then offer some thoughts in response. Unless readers publicly identify themselves (e.g., by using a real name in the comments) or expressly granting me permission, I shall post the questions as coming from anonymous sources. I shall sometimes take the liberty of modestly rephrasing questions.

Today I address a question posed by a reader who wants to know what I think of an argument set out in a 2006 law review article by lawyer Paul Clark to the effect that "the Fifth Amendment implicitly repealed the natural-born citizen requirement for the U.S. Presidency." Here is how the reader summarizes the article and addresses a potential counter-argument:
[Clark's] argument is that SCOTUS has ruled that the Fifth Amendment contains an implicit equal protection clause whose scope is identical to the 14th Amendment's explicit equal protection clause and that since any hypothetical state constitutional provision that limited its governorship to natural-born US citizens would be struck down by the courts as being contrary to the 14th A, SCOTUS should likewise nullify the natural-born citizen requirement for the US Presidency as being in violation of the 5th A. 
I know about the presumption against implied repeal, but why exactly should legal constitutionalists have to follow this presumption when this presumption is not in the text of the US Constitution? Just like the US Constitution does not mandate the use of a specific interpretive methodology, it also does not mandate the use of any canons of construction--thus leaving this issue to the people who actually interpret the Constitution to do with as they see fit.
The short version of my response is that I am not persuaded by Clark's argument on its own terms. Moreover, the fact that the US Constitution does not mandate the use of any canons is not especially informative.
Let's take those points in reverse order. Many canons of construction simply distill common sense. Take the canon that as between two statutes that irreconcilably conflict, the later-in-time statute prevails. That canon is not found in the text of the US Constitution. But the principle seems unassailable. The whole point of new legislation is to change the legal status quo. A rule that preferred earlier-in-time to later-in-time acts, or one that left the choice to some other procedure (such as a coin toss or even a judge's assessment of whether the earlier or later act better served the public interest) would be fundamentally inconsistent with not just democracy but governance more broadly.

To be sure, the presumption against implied repeal is less essential to governance than the later-in-time rule. One could have a working legal system in which implied repeals were freely acknowledged. However, I think the rule-of-law arguments for a presumption against implied repeals generally make sense. That's not to deny that there are circumstances in which one could reasonably conclude that a later-in-time statute that does not expressly repeal an earlier-in-time statute impliedly does so. But that's not an exception to the presumption against implied repeal; it's simply an acknowledgment that the presumption, though strong, is rebuttable. In any event, my point is that the Constitution's failure to set forth (or to reject) the presumption against implied repeal has little bearing on whether it's appropriate to apply such a presumption.

Accordingly, let's turn to the reader's and Clark's basic contention, and let's reframe it this way: There are sufficient grounds to think that the Fifth Amendment's Due Process Clause invalidates the natural-born-citizenship requirement for the presidency to overcome the presumption against implied repeal. Is that contention persuasive?

Clark's article begins by arguing--persuasively in my view--that in just about every other imaginable setting, a government preference for natural-born over other citizens would be a denial of equal protection. If deployed by a state, such a preference would violate the Fourteenth Amendment's Equal Protection Clause; if deployed by the federal government, it would violate the equal protection component of the Fifth Amendment's Due Process under the "reverse-incorporation" doctrine we now associate with Bolling v. Sharpe.

Does the argument work? On the face of it, no. As the late John Hart Ely wrote in a 2001 Virginia Law Review article,
Article I’s provision that the President must be a native-born (as opposed to a naturalized) citizen would obviously violate the Equal Protection Clause were it not in the Constitution. Given that it is, however, it would take a lunatic to argue that it is unconstitutional.
There's a little sloppiness in the foregoing. Ely ought to have cited the equal protection component of the Fifth Amendment Due Process Clause rather than the (Fourteenth Amendment's) Equal Protection Clause. But his core point is right, no?

In the rest of the article, Ely distinguishes between two sorts of "interclausal immunity," i.e., two sorts of arguments that the acceptance of a practice in one clause of the Constitution precludes its implicit invalidation by another clause. Where a constitutional provision expressly adopts a rule--such as the allocation of two Senators to each state and the natural-born citizenship requirement for the presidency--Ely says that it's loony to infer its implied repeal by some other, vaguer, constitutional provision. However, where a constitutional provision supplies solid evidence about what its framers thought about some practice but does not actually contain a mandate, then there need not be interclausal immunity.

In that latter category, Ely discusses and ultimately rejects the following arguments: that the Eighth Amendment cannot ban the death penalty, because the contemporaneously adopted Fifth Amendment impliedly allows deprivations of "life" with due process; that Section 1 of the Fourteenth Amendment cannot bar official sex discrimination with respect to civil and political rights, because its Section 2 allows states to disenfranchise women without paying a representation penalty; that poll taxes must be permissible in state elections because the Twenty-Fourth Amendment expressly forbids them only with respect to federal elections; and that felon disenfranchisement cannot violate a right to vote rooted in Section 1 of the Fourteenth Amendment, because Section 2's representation penalty does not count persons who have been disenfranchised as a consequence of having committed a crime.

Here's how Ely distinguishes those sorts of arguments from the kind of argument later made by Clark and the reader who posed the question inspiring this post:
The Constitution says in no uncertain terms that each state is to have two Senators and the President is to be a native-born citizen, and no provision remotely intended or fairly read to repeal either of these provisions has since been enacted. The Constitution does not say that either states or the federal government are to execute people, discriminate against women, levy poll taxes, or take the vote away from felons. And while many, probably most, of the people who wrote and ratified the bulk of our Constitution approved of these practices—as they approved of many practices since invalidated—and sometimes evidenced that approval in the document itself, in no case did they provide them unusual sanctuary from constitutional evaluation.
I find that distinction persuasive. Another way to put the point would be to say that, in addition to overcoming the presumption against implied repeal, the argument advanced by Clark and my reader also needs to overcome the interpretive canon that says that the specific language takes priority over general language (lex specialis derogat legi generali).

Admittedly, the lex specialis canon is not absolute, but abandoning it with respect to the natural-born-citizenship requirement could not be readily distinguished from abandoning it with respect to other hard-wired rules of the Constitution that could fairly be said to violate the best understanding of equality and liberty--such as the two-Senators rule (per Ely's example) and the Electoral College. Although I have no great love for these rules, I do think that using Due Process to supersede them would undercut the ability of the Constitution's hard-wired provisions to play their coordination and settlement functions.