Pursuant to the doctrine of territorial incorporation established in the Insular Cases, Puerto Rico is an “unincorporated” territory, and as such, it does not form part of the United States within the meaning of the Constitution. As a result, persons born in Puerto Rico are not “born in the United States” under the Fourteenth Amendment and are not constitutionally entitled to citizenship. Because they enjoy only statutory citizenship, Congress arguably is able to expatriate most Puerto Ricans if the island is declared independent. Moreover, the inferior citizenship status of Puerto Ricans reveals a grave inconsistency in the law of the Fourteenth Amendment that has never been addressed. In response to Dred Scott, the Fourteenth Amendment constitutionalized the common law doctrine of jus soli, which provides that all persons born on U.S. territory and not subject to the jurisdiction of another sovereign are native-born citizens, regardless of race. Pursuant to this interpretation of the Citizenship Clause, persons born in Puerto Rico have been “born in the United States” since the ratification of the Treaty of Paris. By retroactively narrowing the scope of the term “United States,” the Supreme Court took advantage of the unique geographical circumstances of the insular territories and prevented their inhabitants from obtaining equal citizenship. Thus, the doctrine of territorial incorporation reasserts Dred Scott’s race-based approach to citizenship and should be overruled.
Issue 4
Judicial Sincerity
Although the idea that judges have a duty to be sincere or candid in their legal opinions is widely shared, critics have argued that a strong presumption in favor of candor threatens judicial legitimacy, deters positive strategic action on multi-member courts, reduces the clarity and coherence of doctrine, erodes collegiality, and promotes the proliferation of fractured opinions. Against these and other objections, I defend the view that judges have a duty to give sincere public justifications for their legal decisions. After distinguishing the concepts of sincerity and candor, I argue that the values of legal justification and publicity support a principle of judicial sincerity. This principle imposes weaker constraints than a general duty of judicial candor. But while candor may be desirable, judges who provide sincere justifications for their decisions satisfy the demands of legitimate adjudication.
Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State
Despite the administrative state’s extensive scope, we know little about how it operates as an empirical matter. This Article provides the first comprehensive empirical examination of agency rulemaking, with and without prior public comment, from President Ronald Reagan to President George W. Bush. Using a large new dataset constructed from twenty years’ (1983–2003) worth of federal agencies’ semi-annual reports in the Unified Agenda of Federal Regulatory and Deregulatory Actions, this Article analyzes variation in agency rulemaking activities with an emphasis on rulemaking at the beginning and end of presidential administrations and around shifts in party control of Congress—midnight and crack-of-dawn regulatory activity—while also assessing some patterns outside those periods.
The empirical results offer new insights into the rulemaking process and the interplay of politics and regulation. Some of these insights are surprising. For example, certain agencies withdrew more proposed rules after political transitions in Congress than after a new President took office. Rather than capitalizing quickly on their electoral mandates, Presidents generally started fewer, not more, rules in the first year of their terms than in later years. Agencies generally did complete more rules in the final quarter of each presidential administration, but cabinet departments (as a group), finished slightly more actions after the 1994 election changed control of Congress than in President Clinton’s last quarter. And although the press highlighted President Clinton’s spate of midnight regulatory activity, President George H.W. Bush began nearly 50 percent more notice-and-comment rulemakings in the final quarter of his term than did President Clinton and nearly 40 percent more than President Reagan.
The results have potentially far-reaching normative and doctrinal implications for the functioning and oversight of the administrative state. Politics aside, many agencies have engaged in considerable notice-and-comment rulemaking, suggesting that the traditional regulatory process may not be significantly ossified. Nevertheless, binding rulemaking without prior comment has increased across a wide range of agencies. Focusing on politics, these patterns of regulatory activity during political transitions undermine theories of judicial deference based entirely on agency expertise. But, at the same time, they do not support a political accountability theory based solely on the President. Rather, the regulatory trends call attention to the importance of Congress, in addition to the President, for bureaucratic oversight. In sum, the timing of rulemaking raises interesting questions about the effectiveness and legitimacy of the administrative state.