The following lecture took place on April 10, 2008 while George W. Bush was still President and Barack Obama had not yet been elected.
“The Principled War on Terror” Neal Katyal, Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center [upload May 29, 2008]:
The video is approximately one hour and twenty minutes in length. Neal Katyal comes on at about the 18:35 minutes mark and speaks throughout the remainder of the video (minus a few minutes of music from a quintet at the very end).
In the video Katyal states that upon meeting his client, Salim Ahmed Hamdan (a citizen of Yemen), for the first time (at Guantanamo Bay detention camp), that Hamdan asked him why that he was representing him (Hamdan v. Rumsfeld, et al.)
50:55 minute mark: “And then I gave him this answer, and it’s the part that motivated me the most in this case and this set of issues. I said you know the reason that I’m here is that my parents came to America with $8 dollars in their pocket, which was all that they were permitted to bring out of India, they didn’t come to America because of the quality of it’s soil, or because of the sports teams, they came to America for a simple reason, they could land on it’s shores and they’d be treated fairly and their children would be treated fairly.
“And when the president [Bush] issued this military order, which said if you’re one of them, if you’re a green card holder, as my parents were, or if you’re a foreigner, one of the 5 billion people, you get the beat up Chevy version of justice, you get sent to Guantanamo. But if you’re and American citizen, accused of the most heinous crime imaginable, the detonation of a weapon of mass destruction, you get the gold standard, you get the American civilian trial.
“I told him that’s why I was so offended, because we haven’t ever had us versus them justice.”
Katyal then tells the audience:
“And while all of the was almost verbatim I didn’t say this but I’ll say it to you in this academic setting, as a person who teaches constitutional law, I think back to those majestic words of the 14th Amendment, Equal Protection of the Laws. Who is it guaranteed to? Well its guaranteed to persons, all persons, that’s the text. And why does it say that? There are other these other parts of the 14th Amendment that talk about citizens, special rights for citizens, like social rights and the Privileges and Immunities Clause. But representative [John Armor] Bingham [R-OH], who wrote the 14th Amendment, said I need to overrule the worst line in the worst Supreme Court case in American history, the line in Dread Scott vs Sanford, which said only citizen have constitutional rights.
“Representative Bingham said we fought a war about that idea and that’s why it reads persons. And indeed the Congress passed right away two laws that made it a federal felony to give aliens different punishments than citizens. And those laws are still on the books today.”
Katyal then continues to further explain what he calls a “deep logic to insisting on equality” which he states goes all the way back to Chief Justice [John] Marshall in the Supreme Court case McCulloch v. Maryland, 17 U.S. 316 (1819).
Katyal talks about not having to set a “subsidence standard” as long as you insist on “fair treatment” and “equal treatment.”
He also mentions Justice [Antonin Gregory] Scalia in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
He also mentions Justice [Robert Houghwout] Jackson [in Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949)], “The framers of our constitution knew nothing opens the door to arbitrary action so effectively as to allow officials to pick an choose a few to whom they’ll apply legislative and escape the political retribution that might be visited upon them if larger numbers were affected.”
Katyal states that the idea is to insist on equality to “make the rules symmetric between aliens and citizens.”
Katyal states that “By subjecting those from foreign lands to the same justice that Americans face, America projects not only benevolence but strength.”
Katyal states that, “Carving out special rules for them, and different rules for us, is no way for us to win respect internationally.”
At approximately the 1:03:55 minutes mark Katyal starts to talk about what he calls the “sunset process…applying to judicial decisions.” He advocates “judicial sunset,” and provides thought-provoking reasoning in support of, for the next several minutes up until about the 1:08:35 minutes mark.
Birthers, Obots and the eligibility skeptics love to cite case law. I’ve never been a big fan of case law myself and I’ve talked in the past about my position on case law with people such as, though not limited to, Charles Edward Lincoln III.
I’ve seen Minor v. Happersett, 88 U.S. 162 (1875) and United States v. Wong Kim Ark, 169 U.S. 649 (1898) cited many times in eligibility issue discussions.
Katyal implies that we shouldn’t make decisions today based on what a judge(s) said a long time ago in a different world.
I don’t want to interject myself into the Minor v. Happersett, 88 U.S. 162 (1875) and Wong Kim Ark, 169 U.S. 649 (1898) debates, I don’t think that I ever have, and I’m not going to start now. Generally speaking though, I’m not a big fan of case law and I’m open to Katyal’s idea regarding the sunset judicial opinions.
It appears that the closest resemblance (maybe?) to a judicial decision sunset found so far (?) in a US judicial decision/opinion was that in Grutter v. Bollinger, 539 U.S. 306 (2003) regarding affirmative action: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Last week [Mar. 11, 2015] Neal Katyal and Paul Clement published On the Meaning of “Natural Born Citizen” at the Harvard Law Review Forum. What many readers probably don’t know is that both Neal Katyal and Paul Clement were attorneys in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (discussed in foregoing and in the video).
The case was argued before the Supreme Court on March 28, 2006. Attorney Katyal argued on behalf of Hamdan. Attorney Paul Clement, the Solicitor General of the United States, argued on behalf of the US Government.
Hamdan (and Katyal) won the case.
I think we can thank George W. Bush for Katyal’s position on natural born citizen.
I agree with much (almost all of it) of what Katyal says in his lecture (in the video). However, I don’t think that his positions (aside from perhaps disregarding case law) are applicable to the natural born citizen clause.
I recommend watching the entire hour and twenty-two minute lecture.
In closing I want add that I couldn’t find much regarding Katyal’s parents other than the following at KuwaitiFreedom.org:
Katyal: I Never Wanted to Sue the President
July 31, 2006
Katyal’s parents emigrated separately from India’s Punjab region in the early 1960s, and while Katyal rarely wears his Indian roots on his sleeve, he does not consciously cover them up, either. His parents did not know each other before they returned to India in 1968 for an arranged marriage. Katyal, following Hindu tradition, arrived at his own wedding in New York state on a horse.
Neal Katyal was born on March 12, 1970 in Chicago, Illinois. Were his parents, by that time, US citizens?
If they weren’t, is Neal Katyal a natural born citizen?
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