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crime victims

The Crime Victims' Rights Movement's Past, Present, and Future (Part II - the Present)

The modern crime victims' rights movement has been remarkably successful in inserting the victim's voice into criminal justice processes.

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This post is the second of three posts, serializing my comprehensive law review article on the crime victims' rights movement. In yesterday's post, I described the movement's roots in the history of private prosecution. This post describes the movement's last several decades, during which the movement has successfully created participatory rights for victims throughout America's criminal justice system.

The modern victims' rights movement began to stir in the late 1960s, coalesced in the 1970s, and gained momentum in the early 1980s. The movement has continued ever  since "as one of the most significant and successful forces for reshaping the criminal justice process."  The movement's birth can be traced to the confluence of five developments: (1) the creation of an academic field of victimology; (2) the introduction of state victim compensation programs; (3) the rise of the women's movement; (4) an increase in crime and an accompanying dissatisfaction with the criminal justice system; and (5) the growth of victim activism.

In late 1982, the President's Task Force on Victims of Crime published a report, calling for victims' rights to be enshrined in criminal justice—and also for adoption of a federal constitutional amendment protecting victims' rights. The Task Force's report catalyzed crime victims' rights efforts across the country. Indeed, the Task Force Report and other similar recognitions of victims triggered "a literal explosion of federal and state action to increase crime victim access to and participation in the criminal justice process."

In 1986, four years after the Task Force released its report, the Justice Department surveyed changes in the criminal justice landscape concerning victims. The Department found that nearly 75 percent of the Task Force's proposals had been implemented to some degree, including the creation of a new Office for Victims of Crime in the Department to help implement the reforms.

Perhaps the most important change sparked by the President's Task Force was the creation of specific crime victims' rights in criminal justice processes. Before 1982, the victims' rights movement had spoken generally about protecting victims' "rights" in criminal cases. Beginning in 1980, states began establishing specific victims' rights by enacting statutory and constitutional victims' bills of rights. Wisconsin was the first state to create a specific list of victims' rights. In 1981, four more states followed suit, and, by 1989, 42 states had enacted statutes called a "victim bill of rights" and most of the remaining states had adopted similar statutory protections.

States also began to add protection for victims' rights in their own constitutions. In 1982, California passed Proposition 8, which was the first state constitutional victims' bill of rights. In a 1984, an ad-hoc gathering of national victim's rights groups decided to first seek constitutional protection for victims' rights in the states before undertaking the significant effort that would be required to pass a federal constitutional amendment—a "states-first approach." The next six amendments that were adopted came from Rhode Island (1986), Florida and Michigan (1988), Texas and Washington (1989), and, perhaps most important, Arizona (1990). These six amendments exhibit a trend from largely aspirational language (Rhode Island's) to more specific guarantees of rights for victims (Arizona's).

These early victims' rights amendments seemed to spur other states to action. In 1991, New Jersey added a state constitutional amendment. In 1992, Colorado, Illinois, Kansas, Missouri, and New Mexico followed suit. In 1993, Wisconsin joined. In 1994, Alabama, Alaska, Idaho, Maryland, Ohio, and Utah added amendments. In 1996, Connecticut, Indiana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, and Virginia also added amendments. Oregon passed an amendment that same year, only to see the Oregon Supreme Court overturn it on technical grounds surrounding the initiative process. The court ruling lead Oregon's voters to swiftly reenact an amendment in 1999. In 1998, Louisiana, Mississippi, Montana, and Tennessee approved amendments. Thus, at the turn of the century, 32 states had state constitutional amendments protecting crime victims' rights. As victims' rights advocates had hoped, the state amendments had set the stage for a push to amend the United States Constitution to add a victims' rights provision.

To place victims' rights into the federal Constitution, the National Victims Constitutional Amendment Network and other advocates approached the President and Congress. In 1996, Senators Jon Kyl (a Republican from Arizona) and Dianne Feinstein (a Democrat from California) introduced a federal victims' rights amendment, with the backing of President Clinton. The Amendment was designed to "restore, preserve, and protect, as a matter of right for the victims of violent crimes, the practice of victim participation in the administration of criminal justice that was the birthright of every American at the founding of our Nation." Read More

Crime Victims Rights Act

How Should the District Court Evaluate the Motion to Dismiss the Charges Against Mayor Adams?

Under existing Second Circuit caselaw, the district court will almost certainly need to approve the motion to dismiss. But existing Circuit law fails to take into account the Crime Victims Rights Act. And there may be a "victim" who rights are being ignored: New York City.

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Yesterday, I blogged about the Justice Department's pending motion to dismiss in the criminal case against Mayor Adams. My argument was that the dismissal motion was easy to justify, particularly given the new Administration's change in priorities for law enforcement. I also noted that the Department's dismissal motion would be subject district court review under a deferential "public interest" standard.  I also criticized those who argued that the dismissal motion was a negotiated quid pro quo between the Justice Department and Adams—a position that was unequivocally corroborated by a letter to the court from Adams's defense attorneys.

In another development yesterday, the district judge in S.D.N.Y. handling the matter (Judge Dale E. Ho) entered an order directing the parties (the Justice Department and Adams) to appear before him today to "address, inter alia, the reasons for the Government's motion, the scope and effect of Mayor Adams's 'consent in writing,' and the procedure for resolution of the motion."

In this post, I discuss what standard Judge Ho should apply in evaluating the pending dismissal motion, making three points: (1) existing Second Circuit case law is very deferential on issues relating to prosecutorial priorities, which would seem to dictate approval of the dismissal; (2) existing Second Circuit caselaw appears to improperly ignore the possibility that crime victims might exercise their congressionally protected right to be reasonable heard on dismissal motions; and (3) while some parts of the Adams prosecution appear to involve "victimless" crimes, at least one of the counts appears to involve a "victim"—specifically New York City, which has (allegedly) been defrauded of "matching funds" during the election process. If my analysis is correct, the judicial procedures for determining the dismissal will need to include the crime victim's right to confer and to be heard under the federal Crime Victims' Rights Act.

I. The Deferential Standard for Reviewing Dismissal Motions in the Second Circuit.

Turning first to the issue of what standard the district court applies in reviewing a motion to dismiss filed under Federal Rule of Criminal Procedure 48(a), let's start with the rule's text: "The government may, with leave of court, dismiss an indictment, information, or complaint" (emphasis added). The key issue that arises, of course, is how to interpret the "leave of court" requirement. The Advisory Committee Notes to the 1944 Amendment adding this language indicate that this requirement was a "change [in] existing law. The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts."

Interesting history underlies the 1944 Amendment, usefully recounted by (now-Virginia law professor) Thomas Frampton. In his June 2020 Stanford Law Review Online article, entitled "Why Do Rule 48(a) Dismissals Require 'Leave of Court'?", Frampton recounts forty-year-old old dicta in the "sole Supreme Court case interpreting Rule 48(a)," Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam). As Frampton explains, there the Court stated that the "leave of court" language was added to Rule 48(a) "without explanation," but "apparently" this verbiage had as its "principal object …. to protect a defendant against prosecutorial harassment." Frampton's article argues that this position is simply wrong: "In fact, the 'principal object' of Rule 48(a)'s 'leave of court' requirement was not to protect the interests of individual defendants, but rather to guard against dubious dismissals of criminal cases that would benefit powerful and well-connected defendants."

Perhaps the most famous case interpreting the "leave of court" requirement is the 2020 case involving Michael Flynn. There, the Justice Department moved to dismiss criminal charges against Flynn, and the district judge handling the matter, Judge Sullivan, appointed an amicus to argue against dismissal. I blogged about the case at that time--taking the position that the "victimless" crime alleged against Flynn was "a curious one for close judicial scrutiny of a Government motion to dismiss--closer scrutiny should be reserved for cases in which crime victims have a clear interest." Because what I wrote then appears to have some application to the Adams case, I recount some of my analysis about the Flynn case here.

In the Flynn case, the standard that the district judge was to apply in reviewing a motion to dismiss was generally understood to give considerable deference to prosecutors. For example, the D.C. Circuit (the appellate court which had authority over Judge Sullivan) had previously explained the limited role that trial judges have in reviewing motions to dismiss:

Rule 48(a) of the Federal Rules of Criminal Procedure requires a prosecutor to obtain "leave of court" before dismissing charges against a criminal defendant. Fed. R. Crim. P. 48(a). That language could conceivably be read to allow for considerable judicial involvement in the determination to dismiss criminal charges. But decisions to dismiss pending criminal charges—no less than decisions to initiate charges and to identify which charges to bring—lie squarely within the ken of prosecutorial discretion. See e.g., Newman, 382 F.2d at 480. To that end, the Supreme Court has declined to construe Rule 48(a)'s "leave of court" requirement to confer any substantial role for courts in the determination whether to dismiss charges. Rather, the "principal object of the 'leave of court' requirement" has been understood to be a narrow one—"to protect a defendant against prosecutorial harassment … when the [g]overnment moves to dismiss an indictment over the defendant's objection." Rinaldi v. United States, 434 U.S. 22, 29 n. 15  (1977).…

So understood, the "leave of court" authority gives no power to a district court to deny a prosecutor's Rule 48(a) motion to dismiss charges based on a disagreement with the prosecution's exercise of charging authority. For instance, a court cannot deny leave of court because of a view that the defendant should stand trial notwithstanding the prosecution's desire to dismiss the charges, or a view that any remaining charges fail adequately to redress the gravity of the defendant's alleged conduct.

United States v. Fokker Servs. B.V., 818 F.3d 733, 742 (D.C. Cir. 2016). Read More

Free Speech

Claim That Minnesota Agency Retaliated Against Rancher for Petitioning Legislature to Change Law …

can go forward, the Eighth Circuit rules.

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From Wagner v. Scheirer, decided last week by Eighth Circuit Judge Bobby Shepherd, joined by Judges Jane Kelly and David Stras:

Wagner owns two separate cattle farming operations in Minnesota. The first is a cow/calf operation aimed at breeding, and the second is an animal feedlot operation aimed at raising cows until they can be sold for processing. Wagner's cow/calf operation takes place in several pastures around Minnesota, while his feedlot operation takes place in feedlots in Minnesota.

Notably, animal feedlots and pastures are not the same under Minnesota law. Feedlots generally use lots and buildings to house animals, while pastures are open grazing areas. The key distinction between the two is the amount of vegetative cover; feedlots are not required to maintain any vegetative cover, while pastures must generally maintain vegetative cover during the growing season.

This distinction is significant because Minnesota feedlots are subject to stricter regulations than pastures. Under Minnesota law, the MPCA [Minnesota Pollution Control Agency] has the authority to adopt permitting requirements for feedlots, but not for pastures. Permitting requirements for feedlots are intended to minimize manure runoff into water sources; pastures are exempt from the rules that feedlots are subject to because the vegetative cover of pastures slows the discharge of manure into water.

The distinction between feedlots and pastures under Minnesota law has been at the center of multiple feuds between Wagner and the Appellees (collectively Scheirer). In two instances in 2014 and 2015, Scheirer accused Wagner of violating certain laws and regulations applicable to animal feedlots and imposed penalties on him. Both times, Wagner denied the violations and disputed Scheirer's authority to regulate the properties—maintaining that they were pastures, not feedlots—but ultimately entered into agreements with Scheirer and paid a portion of the penalties to avoid costly legal fees….

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Politics

Class Action Not Allowed in Suit Alleging Psychological Harm to TikTok Content Moderators

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From yesterday's Order Denying Motion for Class Certification, by Judge Vince Chhabria (N.D. Cal.) in Young v. ByteDance Inc.:

[1.] The primary relief sought by Young on behalf of the class is forward-looking: he wants the Court to order TikTok to institute various protective measures to mitigate the risk that content moderators will suffer psychological harm from reviewing disturbing videos and photos. But Young has no standing to seek such relief in federal court. He is no longer employed as a TikTok moderator and has no intention of returning to that work. He had already left his job by the time he sued TikTok, so the "capable of repetition" doctrine is not available to him. Furthermore, even if Young had quit after he filed suit, he has not submitted sufficient evidence to support his assertion that no monitor would remain in the job long enough to pursue a class action.

[2.] The secondary form of relief Young seeks is something he calls a "medical monitoring fund." There is no mention of this proposed fund in the motion for class certification, much less an explanation of how it would work. On reply, Young makes general reference to it, but still doesn't really explain it. At the hearing, Young's counsel explained that TikTok should be ordered to put money in a fund that would be used to benefit the class in two ways: to monitor all class members for signs of emotional distress, and to provide people treatment (for example, therapy) in the event they need it.

Even after this explanation, the Court lacks the information necessary to assess whether such a fund would be feasible. For example, while Young uses the phrase "medical monitoring," he seems to be asking for more than that: by saying it's for treatment in addition to monitoring, he's proposing to provide compensation for injuries that have been or will be suffered by class members. In the same breath, Young says that this is "not a personal injury case," even though he is proposing that class members receive at least partial compensation for their personal injuries. Nor has Young explained how fund administrators would be able to determine whether any mental health condition suffered by a class member was caused by watching disturbing videos or by something else in their life, or some combination of both. It's not even clear, based on the parties' briefs, that this proposed fund should be considered retrospective relief or prospective relief, or a combination of the two. This is not to suggest that a fund could never be a proper remedy in a case like this, but Young has not adequately explained how it would work.

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Impeachment

The Battle over Judge Newman's Unconstitutional "Stealth Impeachment" Continues

Judge Newman files a powerful reply to the unprecedented claim of the Federal Circuit's Judicial Council that she can be suspended from her duties indefinitely. And the Judicial Council's recent hiring of adversarial experts raises new questions about bias against Judge Newman.

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I've previously blogged about the "stealth impeachment" of Judge Pauline Newman of the Federal Circuit. This post reviews Judge Newman's recently filed reply brief and the Federal Circuit's recent hiring of adversarial experts against Judge Newman. The whole process continues to raise troubling constitutional questions.

Some quick background: Judge Newman has been "temporarily" suspended by the Federal Circuit's Judicial Council due to her alleged failure to cooperate with a Special Committee of the Circuit. The Committee was investigating Judge Newman's alleged declining mental capacities. Judge Newman has sought federal judicial review of whether her indefinite suspension violates her constitutional rights. But a judge on the D.C. District Court dismissed many of her claims as not subject to judicial review and rejected her facial constitutional challenges to the Judicial Conduct and Disability Act. She has appealed to the D.C. Circuit.

In December, I joined former judges Susan Braden, Janice Rogers Brown, Paul Michel, Randall Rader, and Thomas Vanaskie in an amicus brief (written by experienced appellate lawyer Richard Samp) urging the D.C. Circuit to direct that Judge Newman's claims be reviewed on their merits.  And now, just last week, Judge Newman herself weighed in with a powerful reply to the Judicial Council's position that it can simply suspend her from her judicial duties under the Judicial Conduct and Disability Act, at least so long as she continues to draw her salary.  Here is Judge Newman's response (some citations omitted):

Article III does require that duly-appointed judges exercise "judicial power," which is "the power to make authoritative and final judgments in individual cases." William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1815 (2008).

[The Judicial Council's] argument that a judge "subject to a temporary suspension who still holds her commission and is still entitled to draw her salary has not been dismissed from her office" must fail. First, entitlement to salary is a guarantee that is separate and apart from the guarantee that office will be held "during good Behaviour." Nat'l Comm'n on Judicial Discipline and Removal, Report, 152 F.R.D. 265, 287 (1993). Second, there is nothing "temporary" about Judge Newman's suspension. This is recognized even by neutral commentators. See Dennis Crouch, Is Google Simply Asking for More Efficient Infringement?, Patently-O (Jan.29, 2025), https://tinyurl.com/5bushudm ("I put 'temp' in scare quotes because it appears that [Judge Newman's] suspension is—in fact—permanent."). And third, having a framed commission on the wall while being unable to exercise any powers granted by that very commission, is meaningless. Judge Newman's commission, like commissions of Defendants-Appellees and of every judge of this Court, "empower[s] her to execute and fulfil the duties of [her] Office … and to Hold the said Office with all the powers … to the same of right appertaining …." Judge Newman's suspension from her judicial office deprived her of the effects of the very commission upon which Defendants-Appellees rely as evidence that she continues to hold office. While it is true that as a literal matter Judge Newman's seat on the Court is not vacant, the Constitution "deals with substance, not shadows." Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). A functional removal runs afoul of Article III's protections no less than a formal removal would. Ergo, any act of Congress other than impeachment and removal that divests a judge of "the power to make authoritative and final judgments" violates Article III's guarantee that judges "shall hold their Offices during good Behaviour." U.S. Const. art. III, § 1. Such a divestment is a removal from office (whether permanently or temporarily) in all effects.

You can read Judge Newman's entire brief here.

Judge Newman's on-going suspension has the potential to interfere with many other cases. For example, with Judge Newman suspended, it would seem that en banc proceedings in the Federal Circuit could be improperly constituted—and later en banc decisions could be invalidated—because Judge Newman has been barred from participating. The New Civil Liberties Alliance (which is representing Judge Newman in the suspension proceedings) recently made this point in an amicus brief in an important en banc case currently before the Federal Circuit. En banc proceedings must be conducted before all judges in "regular active service." And yet Judge Newman is not being allowed to participate.

H/T to my co-blogger, Josh Blackman, for coming up with a pithy phrase that captures exactly what is happening here: "stealth impeachment." Of course, the Constitution does not permit stealth impeachment. That should be the end of the matter.

BTW: If you want to see the (supposedly mentally disabled) Judge Newman speaking just a few months ago, you can watch her cogently defending her legacy—and her right to serve—in a 49-minute video here. Frankly, she seems to be on the ball and "with it." Watching the video prompts one to wonder if her suspension has anything to do with the fact that she has long been a powerful critic of the judicial opinions of other members of the Federal Circuit?

Speaking of other members of the Federal Circuit, one curious thing about the Judge Newman's suspension is that it appears to have been orchestrated by the Chief Judge of the Federal Circuit, and then agreed to by other members of the Circuit. It is not unusual for issues of judicial conduct to be resolved by referrals to judges in a different Circuit from the one involved, who would have a more detached point of view. Josh Blackman made this point powerfully when the suspension proceedings started, explaining that the decision not to refer the issues to a different circuit

is especially problematic due to the nature of the allegations. Here, we are not dealing with a misconduct complaint from a litigant, or private citizen, who objects to something the judge did on bench, or in public. Rather, the allegations here concern actions that Judge Newman has taken during the opinion writing process. Other than the final date on which an opinion is actually published, the public has no knowledge about how the sausage is made. We do not know when drafts were circulated. We do not know how long judges took to make and revise edits. And we do not know whether complicated legal issues made the process take longer. The only people who have this evidence would be the fellow judges of the circuit, including [the Chief Judge], and court staff. Yet, [the Chief Judge] purports to decide whether there was misconduct. She is the fact-witness, the fact-finder, and the adjudicator. There is an apparent conflict of interest.

In its brief, the Judicial Council responds that it has given Judge Newman due process and that this is not a case that would be better handled by judges outside the Federal Circuit. But Josh's point about an apparent conflict of interest seems even more salient given recent events in the case, namely the Federal Circuit's hiring of adversarial experts against Judge Newman. Read More

President Trump's Executive Order on Birthright Citizenship is Unconstitutional

Trump is doing many great things but trying to get rid of birthright citizenship is not one of them

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Section 1 of the 14th Amendment says that "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." Trump's defenders argue that children born of illegal immigrants in the United States have never entered into a social compact that makes them citizens of the United States protected by U.S. law.

Samarth Desai, a second year law student at Yale Law School, has a devastating response to this claim, which was recently argued for by Georgetown Law Professor Randy Barnett and University of Minnesota Law Professor Ilan Wurman in an op-ed in the New York Times. Desai's article, with which I totally agree, appears below.

Birthright Citizenship: A Test Case

Samarth Desai

President Trump's birthright-citizenship executive order is illegal and unconstitutional, and no "allegiance-for-protection theory" can save it.

No one doubts that children born on American soil to unauthorized migrants were "born … in the United States." So if these children are not birthright citizens, it must be because they were not "born … subject to the jurisdiction" of the United States despite being born under the American flag.

Two prominent scholars claim, in the New York Times and elsewhere, that the children of unauthorized migrants were not born "subject to the jurisdiction" of the United States because their parents disobeyed the laws by entering illegally. According to these scholars, (1) jurisdiction depends on obedience (as a condition of a theoretical social compact), and (2) the disobedience of a parent can be imputed to a child. Unauthorized migrants "gave no obedience or allegiance to the country when they entered," these scholars say. "[T]hey and their children are therefore not under the protection or 'subject to the jurisdiction' of the nation."

This allegiance-as-obedience theory has an obvious and simple test case: Confederate rebels and their children.

If Professors Barnett and Wurman are right, then Confederate rebels and their children would also not have been "subject to the jurisdiction" of the United States, and it would have been perfectly constitutional to deny or revoke their birthright citizenship. Confederate rebels were, after all, paradigmatically disobedient. In the words of the Prize Cases (1863), they had "declared their independence," "cast off their allegiance," "organized armies," and "commenced hostilities" against the United States. True, Confederate rebels, unlike unauthorized migrants, were at one point citizens, but this distinction is irrelevant if jurisdiction requires the existence of a social compact conditioned on obedience to the laws.

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Court Declines to Block Federal Government's New "Government-Wide Email System"

The employees who claimed adoption of the system violated the E-Government Act of 2002 lacked standing to bring the challenge, a federal judge concluded.

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From yesterday's decision by Judge Randolph Moss (D.D.C.) in Doe v. Office of Personnel Mgmt.:

In late January 2025, the Office of Personnel Management ("OPM") began to test "'a new capability allowing it to send important communications to ALL civilian federal employees from a single email address,'" and OPM subsequently began using this new system to send messages "to most if not all individuals with Government email addresses." That new system uses the email address HR@opm.gov and is known as the "Government-Wide Email System" or "GWES." This putative class action challenges the process by which OPM implemented this new system.

Plaintiffs are two federal executive branch employees and five other individuals who have ".gov" email addresses but are not executive branch employees. They contend that in the rush to adopt this new system, OPM at first entirely failed to comply with Section 208 of the E-Government Act of 2002, which requires the preparation of a Privacy Impact Assessment ("PIA") before "initiating a new collection of [certain] information … using information technology," and, then, when confronted with that omission, immediately threw together an inaccurate, insufficient, and unconsidered PIA in the hope of mooting the case. According to Plaintiffs, OPM's failure to prepare a meaningful Privacy Impact Assessment has left vast amounts of private information, including the government email addresses of millions of individuals (which reveal their names and, at least in some cases, their employers) at risk of disclosure in the event that the GWES is hacked.

OPM, for its part, contends that it was not required to prepare a PIA because, on OPM's reading, Section 208 does not apply to the collection of information about government employees, as opposed to about members of the public. And, even if that contention is wrong—either because it has misread the statute or because OPM inadvertently collected email addresses from individuals who do not work for the federal government but nonetheless use .gov or .mil email addresses—OPM, in any event, has now prepared a PIA. That is all that is required, on OPM's telling, and the Court lacks the authority to examine the "substance and accuracy" of the PIA that the agency prepared….

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Chris Christie on the Eric Adams Controversy

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Since my cobloggers have been discussing this, on both sides of the question, I thought I'd also pass along Chris Christie's column on this in the Free Press. (Before becoming Governor of New Jersey, Christie had been a federal prosecutor, culminating in heading the federal prosecutorial office for the District of New Jersey.) His conclusion:

Finally, as to Mayor Adams, I have reached no judgment on his guilt. How could I? Like every American, he is presumed innocent, and an indictment contains allegations by the DOJ that have to be proved beyond a reasonable doubt. His job now is to prove to the citizens of New York City that he serves the people who elected him and has not become a tool of any other force in order to save himself personally from having to face these charges. The oath he took requires nothing less from him.

The administration has an obligation to work as hard as they can to implement the policies the American people voted for in November. They also have an obligation to assure the public that the criminal law will be administered fairly and not used as a carrot or a stick to achieve any goal other than to have the guilty held to account for their conduct and the innocent free of unwarranted criminal charges.

This is an embarrassing episode for the Department of Justice and further undercuts the public confidence in our system of justice. Congress and the courts must play their constitutional role as well and not sit as idle bystanders while our system of justice is not de-weaponized, but just weaponized in a different direction. Either dismiss forever an indictment Mr. Bove characterizes as politicized and tainted, or let the charges proceed and let a jury of his peers judge the allegations against Mayor Adams.

Again, I have no well-informed view on the subject, but I agree that it's an important issue, and thought Christie's perspective was worth passing along.

Birthright Citizenship

More on Birthright Citizenship and Undocumented Immigrants - Rejoinder to Barnett and Wurman

Why their response to me and other critics fails to refute key objections.

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In a recent blog post, Randy Barnett and Ilan Wurman have responded to my piece and others criticizing their NY Times op ed that had offered partial defense of President Trump's executive order denying birthright citizenship to children of undocumented immigrants, and migrants in the US on temporary visas. I think they fail to effectively rebut several key points, most notably that their argument - if applied consistently - would also deny birthright citizenship to recently freed slaves - the group the Citizenship Clause of the Fourteenth Amendment was principally intended to protect.

Section 1 of the Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." Barnett and Wurman argue that only people who have exchanged "allegiance" for "protection" qualify as "subject to the jurisdiction" of the US. As pointed out in my earlier post, freed slaves did not qualify, because they had never made any such exchange. The US government sought to compel their obedience, but did not offer any meaningful protection. To the contrary, it facilitated their subjugation and oppression.

In their response, Barnett and Wurman state that " enslaved persons brought here against their will were not afforded protection of the law. But obedience and ligeance were demanded of them nonetheless." The US, they say, owed them protection in exchange. The obvious problem here is that a demand for obedience without any reciprocal provision of protection is not an "allegiance-for-protection" compact. It's just straight-out coercion in exchange for virtually nothing. One could just as easily say that a Mafia protection racket qualifies as "allegiance-for-protection." Indeed, the slavery situation was actually worse than that, since the Mafia usually doesn't impose lifelong forced labor on its victims.

If a mere demand of obedience is enough to trigger "jurisdiction," then illegal migrants also qualify. After all, the US government certainly demands their obedience to its laws. They can be prosecuted for crimes, subjected to civil suits in US courts, and so on.

At one point, if I interpret them correctly, Barnett and Wurman seem to suggest that the allegiance-for-protection exchange may have occurred when the former slaves were freed. I anticipated this kind of argument in my previous post:

This situation changed, to an extent, with the abolition of slavery through the Thirteenth Amendment. But the "subject to the jurisdiction" language of the Citizenship Clause refers to people subject to that jurisdiction at the time they were born. For example, the [US-born] child of a foreign diplomat doesn't get birthright citizenship if her parents later lose their diplomatic immunity.

By its very nature, birthright citizenship is acquired through circumstances present at the time of one's birth, not by ones that occur years later.

Barnett and Wurman also continue to err in focusing almost exclusively on materials that predate the drafting and enactment of the Fourteenth Amendment. Given that the whole purpose of the Citizenship Clause was to grant citizenship to a large class of people who didn't have it before, we cannot assume that it was merely following preexisting legal rules (even assuming that Barnett and Wurman interpret the latter correctly). Scholars who have canvassed the drafting and enactment history, and its aftermath find that the evidence supports birthright citizenship for the undocumented. See, for example, Michael Ramsey's extensive work on this subject.

The source Barnett and Wurman rely on the most is an 1862 opinion by Attorney General Edward Bates. Even assuming this opinion is relevant to the construction of the Citizenship Clause (drafted years later), Barnett and Wurman fail to effectively address Jed Shugerman's critique of their construction of it. As Shugerman points out, far from concluding that an allegiance-for-protection exchange is necessary to trigger birthright citizenship, Bates argued the exact opposite: being born in the United States creates a presumption of citizenship, which in turn triggers both allegiance and protection. As Bates put it, "nativity furnishes the rule, both of duty and of right, as between the individual and the government" (emphasis added).

Barnett and Wurman overlook this crucial point in both their original article and their response. I am not convinced the Bates opinion should be given any great weight in interpreting the Citizenship Clause. As a legal matter, it is not actually an interpretation of the Citizenship Clause, which had not yet been drafted. As a matter of political theory, I find the argument that mere birth triggers an obligation of allegiance morally repugnant. But to the extent that Bates' position matters, it actually undercuts the Barnett-Wurman thesis rather than supports it.

Finally, Barnett and Wurman continue to claim that their opponents' position cannot account for such anomalies as the denial of birthright citizenship to people born on foreign public vessels in US waters and its extension to children of American citizens born in territories occupied by an invading army.  I covered both in my original post:

These aren't actually anomalies at all. As the Supreme Court ruled in 1812, foreign public vessels in US territorial waters remain under the sovereignty of their governments, and therefore are not within US jurisdiction. Citizens residing within enemy-held territory remain under an obligation to follow US law, and that duty can be enforced upon them in a way it cannot be on foreign troops (for example through prosecutions undertaken after the US recaptures the territory).

I would add that the US government retains a variety of other means of leverage over US citizens residing in temporarily occupied territories. For example, it can strip them of citizenship if they commit treason by collaborating with the enemy. Such people remain under US jurisdiction in a way invading enemy troops are not.

Finally, I think Barnett and Wurman are wrong to suggest that the phrase "subject to the jurisdiction" is ambiguous with respect to the issue at hand. In both ordinary usage and legal parlance, "jurisdiction" refers to authority. A person is subject to the jurisdiction of a government if that entity can exercise power over her by enforcing its laws against her. There may be some situations where the term is used in a non-standard or counterintuitive way. But if so, the burden of proof is on those who advocate an interpretation that deviates from ordinary usage.

In sum, I much appreciate Barnett and Wurman's thoughtful efforts to address criticisms and clarify their position. But the ultimate result does more to highlight the power of the critiques than to refute them.

UPDATE: It may be worth reiterating, as stated in my earlier post, that the Barnett-Wurman argument - even if completely sound - cannot justify the part of Trump's order denying birthright citizenship to children of migrants who legally entered the US on temporary visas.

Gun Control

Supreme Court Amicus Briefs on Gun Crime in Mexico

Mexico's amici take shots at our brief in Smith and Wesson v. Mexico

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In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, the Mexican government is suing several of the most popular American firearm manufacturers in an attempt to hold them liable for violence committed by Mexican drug cartels in Mexico. The Mexican government seeks billions of dollars in damages and the imposition of extensive gun controls in America.

This post is coauthored with Joseph Greenlee, who is a research associate at the Independence Institute (where I work) and Director of the Office of Litigation Counsel for the National Rifle Association's Institute for Legislative Action.

We filed an amicus brief on behalf of the National Rifle Association, FPC Action Foundation, and Independence Institute in support of the American manufacturers. The State of Montana, joined by 25 more states, filed a brief as well. In response to these two briefs, a group of social science, medical, and legal scholars supporting the Mexican government joined a brief filed by Crowell & Moring aimed at refuting our claims. This post addresses their arguments.

Homicides in Mexico after the 2004 repeal of the American "assault weapon" ban

Mexico's amici accuse us of denying "there has been a significant increase in gun violence in Mexico since the expiration of the U.S. assault weapons ban in 2004." They fault us for "conflat[ing] the Mexican homicide rate . . . with the overall rate of national gun violence." Actually, it was the Mexican government that argued "homicides in Mexico . . . increased dramatically beginning in 2004." Mexico Complaint at ¶ 13 (emphasis added). And the Mexican government has focused its statistical case on the number of homicides and the homicide rate. E.g., Complaint at ¶¶ 14, 279, 440, 441, 442, 444, 450, 471, 472.

Our brief provided statistics—which the amici did not dispute—that "Mexico's homicide rate was lower during each of the first three years after the ban's expiration (2005–2007) than during any year in which the ban was in effect (1995–2003)." The plaintiff, the  Mexican executive branch, incorrectly told courts that Mexican homicides "increased dramatically beginning in 2004."

In later years, Mexican homicides have increases. We argued that the increases were caused by the Mexican government's military offensive against its own citizens, the militarization of public security forces, government corruption, the government's failure to punish criminal conduct, and the Mexican government's human rights violations—including unlawful killings by police and military, forced disappearance by government agents, torture committed by security forces, and violence against journalists. In other words, the homicide increase is the result of the Mexican government's own misdeeds and failures, not the American manufacturers' lawful activity.

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Campus Free Speech

New Episodes of the Academic Freedom Podcast

Conversations on campus free speech with Timothy Zick, Jennifer Ruth, and Michael Berube

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In recent weeks, the Academic Freedom Podcast has released two new episodes focusing on campus free speech issues.

First up was a conversation with Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School. He is the author most recently of Managed Dissent: The Law of Public Protests. The episode focuses on the law surrounding public protests on and off college campuses.

Next was a conversation with Jennifer Ruth and Michael Berube about their recent book, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom. They are both long-serving leaders in the American Association of University Professors, and the book develops a provocative proposal for patrolling the acceptable boundaries of extramural speech by university faculty.

More to come.

Birthright Citizenship

A Reply to Critics

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By Randy E. Barnett and Ilan Wurman

Since the publication of our opinion piece on birthright citizenship in the New York Times ("Trump Might Have a Case on Birthright Citizenship"), we have received numerous critiques, some quite thoughtful (others less so), both in this and other venues. In this short essay we recapitulate and elaborate upon the argument of our initial piece, emphasizing especially the parts that are responsive to the criticisms. None of the objections has convinced us that we erred. 

The Common-Law Default

The aim of our NYT op-ed was principally to establish the actual common law rule of birthright subjectship and subsequently birthright citizenship. As readers will know, the questions with which we are confronted today—those involving illegal immigration or temporary sojourning, the latter represented in its most concerning form by those who temporarily visit for the specific purpose of having a child in the United States—were not prominent issues at the time the common law rule developed. Nor has the Supreme Court addressed either issue: in Wong Kim Ark, the Court held that a child born here of domiciled, permanent residents was a birthright citizen.

Thus, we make two overarching points. First, whether the common law rule would have applied to either group can only be determined by understanding the actual principle and operation of the rule and extrapolating it to these situations. Second, we presume, as the Supreme Court has, that the Fourteenth Amendment's language "subject to the jurisdiction" of the United States was intended to encapsulate the rule, whatever it was. It is of course possible that the language was intended to, or simply does as a matter of original meaning, extend or restrict the common law rule. One can therefore disagree with us on any of these points: One can disagree with our characterization of the common law; or with our application of its rule to modern-day questions; or with the presumption that the language of the amendment tracks that rule as opposed to doing something else.

What we emphatically reject is that the meaning of the word "jurisdiction" is somehow plain or obvious. The Supreme Court has famously said that jurisdiction is a word of many meanings. It appears to us that the members of the 39th Congress would have agreed. And, to reiterate, in Wong Kim Ark the Supreme Court presumed that jurisdiction referred to the common law allegiance-for-protection view that we elaborate in our initial piece and further below.

As a methodological matter, we think the original public meaning of the text is what matters. We say more about this below. And if it incorporated the common law rule, the actual content of that historical rule is what matters. But to the extent either is ambiguous as applied to the modern-day questions, the interpretation of either, as Madison once said, can also be "triable by its consequences."

We find it particularly puzzling that opponents of our position, many of whom would normally object to following original meaning, in this case insist on following a particularly feudalistic and archaic conception of subjectship. In our view, the best understanding of the common law rule does not require such feudalistic applications today. At a minimum, how the rule would apply to present circumstances is ambiguous, in which case the feudalistic and archaic conceptions should also be avoided.

We also emphatically reject, however, the claim that the framers of the amendments intended to adopt something other than birthright citizenship. We reject the claim that some scholars have made that the framers were adopting "jus sanguinis," or citizenship by blood, according to which only the parents' citizenship determined one's own status (aside from naturalization). What we do claim, however, is that the status of the parents mattered for jus soli too. That is, we aim to show that even under the birthright rule, the status of the parents mattered. The parents could, indeed, be aliens. We therefore think Wong Kim Ark was rightly decided. But it was not enough merely to be an alien physically present. The exceptions to the rule show this to be the case.

The Puzzles of the Conventional View

One central issue that justifies our exploration of the common law rule is that the standard view of "subject to the jurisdiction" creates a series of puzzles. It is known that certain groups were excluded from birthright citizenship: the children born to (1) ambassadors, (2) Native Americans subject to tribal authority, (3) members of invading armies, and (4) foreigners on foreign vessels in U.S. waters. There is also some reason to think other "nontaxed" Native Americans—those not subject to tribal authority, but who nevertheless had not assimilated—were also excluded.

The question then becomes why they were excluded.

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Politics

The Motion to Dismiss the Charges Against Mayor Adams Is Easily Supportable

The Justice Department's decision to seek dismissal of the pending charges seems like standard fare in plea bargaining and helps to support a top Administration policy.

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I've been following the debate between my co-bloggers David Post and Josh Blackman (and other commentators elsewhere) on the Mayor Eric Adams criminal case. Dedicated VC readers will have seen that David calls the Justice Department's decision to move to dismiss the charges an "outrageous" deal – and in an earlier post, he called it an "odious and reprehensible" deal. Josh calmly responds that this "is the sort of thing DOJ does all the time." Who's right?

As a professor who teaches criminal law (and as former federal prosecutor who cut plea deals), I will weigh in on Josh's side as a descriptive matter, without taking a position on the ultimate merits of whether the Justice Department should have moved to dismiss the charges. This motion to dismiss does not seem "outrageous" to me, particularly since the matter now goes for review by a federal judge.

Initially, exactly what has happened here needs to be clarified. David writes about "the conditions [Mayor Adams] has accepted in return for the DOJ dropping the case against him …." But the Mayor has accepted no such "conditions." This is proven by looking at the text of the Department's motion to dismiss pending before the federal district court, linked here. The motion lists no conditions on the dismissal—DOJ is simply moving to have the case dismissed, without prejudice, as is specifically authorized by Federal Rule of Criminal Procedure 48. Now, to be sure, there may be a tacit recognition by the Justice Department that, going forward, the Mayor will cooperate on immigration matters. But it is well known that the Mayor is generally supportive of greater immigration restrictions. Informally recognizing the reality of the situation is not the same thing as formally imposing "conditions," as David inaccurately (in my view) describes the situation.

But wait, some may argue—its not fair to place the Mayor in a position where he might feel tacitly pressured to follow the political lead of the Justice Department. But here Josh is spot-on—this sort of thing happens all the time. To see an example, one need look no further than this very case. Consider Mayor Adams' position between November 10, 2023, when the Justice Department (acting through the FBI) seized his cell phones in the corruption probe, and September 26, 2024, when the Justice Department indicted him on various federal corruption-related charges. During that time, while he was under federal investigation, Mayor Adams no doubt felt some pressure to follow Biden Administration's lead on immigration and other issues. But that is simply a function of having the possibility of criminal charges hanging over one's head.

Of course, last September, the Biden Administration chose to file charges and, last week, the Trump Administration moved to dismiss them. If the Department's motion to dismiss is granted, things simply return to the status quo ante—that is, Mayor Adams will be placed in the legal position where he was before last September 26. He will have the possibility of having criminal charges being filed hanging over his head. And, to be sure, when the criminal charges have been previously spelled out through a grand jury indictment, that makes the possibility much clearer. But that awkward position is not some unique situation that the current Administration has "outrageously" created. That is simply a function of a background criminal investigation, which has placed the Mayor in an uncomfortable position, regardless of whether charges are actually filed or only a possibility.

But wait, some may argue, the Trump Administration can be expected to uniquely place pressure on Mayor Adams. If true, that argument is simply a question of degree. Indeed, while the Biden Justice Department was investigating the Mayor, there was a robust debate about the pressure the Mayor might feel to follow the lead of progressive Democrats or take a different tack. As is well known, Mayor Adams chose to "buck[] the radical progressive base of his party," as Republican Representative Anthony D'Esposito put it. It is not at all clear that the pressure that the Mayor might now face from the Trump Administration will be greater than the pressure that he felt from the other side of the political spectrum, including the implicit pressure to toe the line of the Biden Administration.

One way to perhaps distinguish the pressures involved is that the Justice Department now apparently predicts that Mayor Adams will provide his assistance in enforcing federal immigration laws—something that is entirely lawful on the Mayor's part and, indeed, perhaps even his duty. The lawfulness of helping to enforce the law quickly distinguishes David's defective hypothetical. David asks what if "the DOJ uncovers evidence that [a Supreme Court Justice] has cheated on her income taxes, and convinces a grand jury to indict her, and then offers her a deal: we'll defer prosecution (but keep the possibility open), as long as you vote in the government's favor in all cases coming before the Supreme Court." But David's hypothetical would be an illegal deal—specifically conditioning the dismissal on a Supreme Court Justice violating her oath of office.

The Judicial Oath that Supreme Court Justice's take is provided by 28 U.S.C. sec. 453, which unsurprisingly requires judicial impartiality:

I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [Supreme Court Justice] under the Constitution and laws of the United States. So help me God."

Of course, agreeing in advance to rule in a particular party's favor is not "administer[ing] justice without respect to persons." But agreeing in advance to assist in enforcing federal immigration laws—assuming for sake of argument that an (unwritten) advance agreement exists—is entirely consistent with the Mayor's official responsibilities, not a deviation from them. Read More

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