Hassan v. NH, State of et al
Filing
12
///ORDER granting 4 Motion to Dismiss. Clerk to enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Abdul Karim Hassan
v.
Civil No. 11-cv-552-JD
Opinion No. 2012 DNH 038
The State of New Hampshire, et al.
O R D E R
Abdul Karim Hassan seeks a declaratory judgment that the
natural born citizen requirement of Article II, Section 1, clause
5 of the United States Constitution, which provides that only
natural born citizens are eligible to seek the office of
President of the United States (the “Natural Born Citizen
Clause”), has been implicitly repealed by subsequent amendments
to the Constitution.
Hassan further seeks a declaratory judgment
that New Hampshire state laws requiring all presidential
candidates to affirm that they are natural born citizens are
unconstitutional.
The State of New Hampshire and its Secretary
of State, William Gardner, move to dismiss the complaint.
Background
Hassan is a foreign-born, naturalized citizen of the United
States.
He satisfies all of the constitutional requirements for
holding the office of President of the United States except for
the requirement that he be a natural born citizen.1
In July 2011, Hassan asked the New Hampshire Secretary of
State’s office whether his status as a naturalized citizen would
prevent him from obtaining access to the New Hampshire
Presidential Primary ballot.
In a mailing dated July 19, 2011,
the Assistant Secretary of State, Karen Ladd, provided Hassan
with the Declaration of Candidacy form for the Presidential
Primary, RSA 655:47, and the Declaration of Intent form for the
general election, RSA 655:17-b.
Ladd’s cover letter informed
Hassan that both forms require the declarant to affirm under oath
that he or she is eligible for the office of President of the
United States under the Constitution.
The letter further stated
that the Secretary of State’s office would not accept a filing
from any person who is not a natural born citizen and hence, is
not eligible for the office of President.
Because of this
requirement, Hassan did not file either document.
1
Article II, section 1, clause 5 of the United States
Constitution provides, in pertinent part, “No person except a
natural born Citizen . . . shall be eligible to the Office of the
President.”
2
Standard of Review
When considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the court must determine whether the
facts alleged, when taken as true and in the light most favorable
to the plaintiff, state a claim on which relief can be granted.
Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).
Under the notice pleading standard of Federal Rule of Civil
Procedure 8(a)(2), a plaintiff need provide only a short and
plain statement that provides enough facts “‘to raise a right to
relief above the speculative level . . . .’”
Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The court must
separate the factual allegations from any legal conclusions and
decide whether the factual allegations, taken as true, state a
plausible claim for relief.
Ocasio-Hernandez, 640 F.3d at 10-11
(applying Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)).
Discussion
Hassan does not contend that the Constitution contains any
language expressly repealing the Natural Born Citizen Clause.
Hassan argues, however, that the clause “is irreconcilable with
and is trumped, abrogated and implicitly repealed by the Equal
Protection Clause, the Citizenship Clause and the Privileges and
3
Immunities Clause of the Fourteenth Amendment as well as the
Equal Protection guarantee of the Fifth Amendment.”
Hassan also
argues that because the Natural Born Citizen Clause has been
implicitly repealed by subsequent amendments to the Constitution,
New Hampshire state statutes consistent with that clause are
unconstitutional.
It is unclear whether the Constitution is subject to repeal
by implication as is a statute.
For example, unlike a statute,
the Constitution expressly provides the manner by which it may be
amended.
See U.S. Const. art. V.
Therefore, it may be that the
Framers did not intend the Constitution to be amended by any
other means, such as by implication.
In addition, other courts
have held that they do not have the power to determine whether
any part of the Constitution has been implicitly repealed.
See,
e.g., New v. Pelosi, 2008 WL 4755414, at *2 (S.D.N.Y. Oct. 29,
2008) (“as interpreter and enforcer of the words of the
Constitution, [the court] is not empowered to strike the
document’s text on the basis that it is offensive to itself or is
in some way internally inconsistent”) (internal quotation marks
and citation omitted).
On the other hand, the Supreme Court has
held that the Fourteenth Amendment limits Eleventh Amendment
sovereign immunity, even though the text of the Fourteenth
Amendment does not explicitly require that result.
4
See
Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
Because the
defendants do not address the issue, the court will assume
without deciding that the principles of repeal by implication are
applicable to the Constitution.
“The cardinal rule is that repeals by implication are not
favored.”
(1936).
Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503
“There are two well-settled categories of repeals by
implication: (1) Where provisions in the two acts are in
irreconcilable conflict, the later act to the extent of the
conflict constitutes an implied repeal of the earlier one; and
(2) if the later act covers the whole subject of the earlier one
and is clearly intended as a substitute it will operate similarly
as a repeal of the earlier act.”
538 U.S. 254, 273 (2003).
Id.; see also Branch v. Smith,
“[I]n either case, the intention of
the legislature to repeal must be clear and manifest.”
Posadas,
296 U.S. at 503; see also Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 662 (2007) (“While a later
enacted statute . . . can sometimes operate to amend or even
repeal an earlier statutory provision . . ., repeals by
implication are not favored and will not be presumed unless the
intention of the legislature to repeal is clear and manifest.”)
(internal quotation marks and citations omitted).
5
For there to be an irreconcilable conflict, “[i]t is not
enough to show that the two statutes produce differing results
when applied to the same factual situation . . . .”
v. Touche Ross & Co., 426 U.S. 148, 155 (1976).
Radzanower
Instead, the
“intent to repeal must be manifest in the ‘positive repugnancy
between the provisions.’”
United States v. Batchelder, 442 U.S.
114, 122 (1979) (quoting United States v. Borden Co., 308 U.S.
188, 199 (1939)); see also Ga. v. Penn. R. Co., 324 U.S. 439, 457
(1945) (“[o]nly a clear repugnancy between the old law and the
new results in the former giving way”).
Therefore, “‘a statute
dealing with a narrow, precise, and specific subject is not
submerged by a later enacted statute covering a more generalized
spectrum.’”
Nat’l Ass’n of Home Builders, 551 U.S. at 663
(quoting Radzanower, 426 U.S. at 153).
Hassan argues that the standard disfavoring repeal by
implication is inapplicable in this case because the Natural Born
Citizen Clause is discriminatory on its face and subject to
strict scrutiny.
He argues therefore that “there is no need to
show ‘irreconcilability’ or ‘intent’ to repeal.”
Hassan offers
no support for this argument, however, and does not cite any case
that suggests that the applicability of principles of implied
repeal depends on the content of the earlier statute.
6
Therefore,
the principles of implicit repeal apply to the Natural Born
Citizen Clause.
Hassan has not carried the high burden necessary to
demonstrate that the Natural Born Citizen Clause has been
implicitly repealed by the Fourteenth Amendment.2
Hassan argues
that Congress intended the Fourteenth Amendment, when enacted, to
abrogate the Natural Born Citizen Clause.
Hassan, however, does
not provide any support for his argument, and the Supreme Court
cases he cites merely discuss general equal protection
principles.
As such, Hassan has not overcome the presumption
against implied repeal.
In addition, articles discussing both
the Natural Born Citizen Clause and the Fourteenth Amendment have
noted that in the few years following the ratification of the
Fourteenth Amendment, Congress considered and rejected numerous
proposals to amend or repeal the Natural Born Citizen Clause.
2
Hassan also argues that the Natural Born Citizen Clause was
implicitly repealed by the Fifth Amendment. Because Hassan
argues that the “equal protection guarantee of the Fifth
Amendment will trump, abrogate and implicitly repeal the natural
born provision for the same reasons that the equal protection
clause of the Fourteenth Amendment has done so,” the court’s
analysis of Hassan’s arguments based on the Fourteenth Amendment
apply equally to Hassan’s arguments based on the Fifth Amendment.
See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217
(1995) (“[t]his Court’s approach to Fifth Amendment equal
protection claims has always been precisely the same as to equal
protection claims under the Fourteenth Amendment”) (internal
quotation marks and citation omitted).
7
See Sarah Helene Duggin & Mary Beth Collins, “Natural Born” in
the USA:
The Striking Unfairness and Dangerous Ambiguity of the
Constitution’s Presidential Qualifications Clause and Why We Need
to Fix It, 85 B.U. L. Rev. 53, 148 (2005) (citing H.R.J. Res. 52,
42d Cong. (2d Sess. 1871)); Malinda L. Seymore, The Presidency
and the Meaning of Citizenship, 2005 B.Y.U. L. Rev. 927, 947
(2005) (citing H.R.J. Res. 166-169, 42nd Cong. (3d Sess. 1872)
and S.R. 284, 41st Cong. (3d Sess. 1871)).3
Therefore, Hassan
cannot show that the Fourteenth Amendment was originally intended
to abrogate the Natural Born Citizen Clause.
Hassan also argues that the Supreme Court’s interpretation
of the Fourteenth Amendment has evolved since its ratification,
and that the current interpretation of the Amendment is
irreconcilable with the Natural Born Citizen Clause.
Again,
however, Hassan cannot meet the high burden necessary to
demonstrate implicit repeal.
Hassan relies on Supreme Court cases discussing the broad
reach of the Equal Protection Clause and other cases discussing
3
In addition, one of the articles notes that there is no
mention of the repeal of the Natural Born Citizen Clause, and
barely any mention of the clause at all, in the congressional
debates on the Civil Rights Act or the Fourteenth Amendment. See
Seymore supra p. 8, at 986. This further undermines Hassan’s
argument that Congress intended the Fourteenth Amendment to
abrogate the Natural Born Citizen Clause.
8
the equal footing of native and naturalized citizens.
See, e.g.,
McDonald v. City of Chi., Ill., 130 S. Ct. 3020 (2010); Afroyim
v. Rusk, 387 U.S. 253 (1967).
The cited cases, however, discuss
the “generalized spectrum” of equal rights for all citizens and
those principles do not implicitly repeal the Natural Born
Citizen Clause, which addresses the “narrow, precise, and
specific subject” of eligibility for the office of President.
See, e.g., Nat’l Ass’n of Home Builders, 551 U.S. at 663.
In
addition, the cases discussing the equal rights of naturalized
citizens often distinguish the Natural Born Citizen Clause.
Schneider v. Rusk, 377 U.S. 163, 165 (1964) (“[t]he only
difference drawn by the Constitution is that only the ‘natural
born’ citizen is eligible to be President”); see also Knauer v.
United States, 328 U.S. 654, 658 (1946); Baumgartner v. United
States, 322 U.S. 665, 673 (1944).
Cases discussing the equal
rights of naturalized citizens without specific reference to the
Natural Born Citizen Clause, see, e.g., Afroyim, 387 U.S. 253, do
not demonstrate the “manifest intent” necessary to overcome the
strong presumption against implicit repeal.4
4
Hassan contends that the Supreme Court in Afroyim quoted
language concerning the equal rights of naturalized citizens from
the court’s prior decisions but omitted the prior decisions’
references to the Natural Born Citizen Clause. Hassan argues
that the omission of that language is conclusive proof that the
clause has been abrogated. However, the Supreme Court’s use of
9
In addition, as it did in the years immediately following
the ratification of the Fourteenth Amendment, Congress has
continued to consider and reject amendments to or repeals of the
Natural Born Citizen Clause.
See H.R.J. Res. 59, 108th Cong.
(2003); see also Duggin & Collins supra p. 7, at 149 (citing
H.R.J. Res. 795, 90th Cong. (1967)); Seymore supra p. 8, at 947
(citing S.J. Res. 161, 92d Cong. (1971)).
Therefore, neither the
Fourteenth Amendment nor the Equal Protection Clause can be
interpreted to repeal the Natural Born Citizen Clause.5
Accordingly, because the Natural Born Citizen Clause has not
been implicitly repealed, New Hampshire state laws requiring all
language from an earlier decision does not undermine or overturn
the portion of the earlier decision that was not quoted. If it
did, every decision quoted in part by a later decision would, in
effect, be abrogated.
5
Hassan’s argument that the Absurdity Doctrine requires
avoidance of the plain language of the Natural Born Citizen
Clause is similarly unavailing. The Absurdity Doctrine provides
that “interpretations of a statute which would produce absurd
results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.” Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). As
discussed, Hassan has not demonstrated that the legislative
purpose behind the Fifth or Fourteenth Amendments was to abrogate
the Natural Born Citizen Clause. Similarly, Hassan’s contention
that the original rationale for the Natural Born Citizen Clause
is no longer relevant does not provide the basis for ignoring the
plain language of the Constitution.
10
presidential candidates to affirm that they are natural born
citizens are constitutional.
Conclusion
For the foregoing reasons, the defendants’ motion to dismiss
the complaint (document no. 4) is granted.
The clerk of court
shall enter judgment accordingly and close the case.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 8, 2012
cc:
Abdul Karim Hassan, pro se
Matthew G. Mavrogeorge, Esquire
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