The Ayyadurai Debacle

by Joseph DeMaio, ©2024

(Nov. 23, 2024) — Whooo boyyy… here we go again.

On Nov. 18, 2024, the Supreme Court issued its order denying the petition for certiorari in the case Shiva Ayyadurai v. New Jersey Democratic State Committee, (USSC Docket 24-342). 

The case, – and Dr. Shiva Ayyadurai’s claim that the “natural born Citizen” (“nbC”) presidential eligibility restriction in the Constitution…, is itself unconstitutional as being a denial of the equal protection of the laws under the 14^th Amendment to naturalized U.S. citizens, as is Dr. Ayyadurai – was discussed back in 2023 here.  Dr. Ayyarudai admitted that he is not an nbC, but based his claim on the fact that his naturalization should not render him ineligible to the presidency.

Before proceeding further here, interested P&E readers may want to first review that 2023 post to refresh the memory of how Dr. Ayyadurai’s claim relates to the nbC issue.

Back already?  Good.  Let us proceed…, but keep a supply of your favorite caffeinated beverage nearby, as this may become long and somewhat convoluted.

To begin with, the Court’s recent denial of the petition for certiorari provides no explanation of the basis for the denial, whether it be for lack of litigant “standing” (the usual basis in a case challenging the nbC status of a candidate) or for some other substantive reason.  It is noteworthy, however, that Dr. Ayyadurai included (as required by Supreme Court rules), as an appendix to his certiorari petition, copies of the lower rulings of the New Jersey Supreme Court; New Jersey Appellate Court Division; Administrative Tribunal and New Jersey Secretary of State’s decision.  These documents are replete with substantive nbC arguments.

Second, as your servant recently discussed here, although the formal Supreme Court Rules do not directly address what are called “Opinions Relating to Orders,” they exist in practice.  The Supreme Court’s website describes them thusly: “Opinions may be written by Justices to comment on the summary disposition of cases by orders, e.g., if a Justice wants to dissent from the denial of certiorari or concur in that denial.”

The most common, by far, example of the “summary disposition” of a case seeking the Court’s review is (as in Dr. Ayyadurai’s case) the denial of a certiorari petition.  As the Court’s website protocol suggests, by allowing an individual Justice the opportunity to comment, the parties, their attorneys and, significantly, the general public might be treated to the non-binding views of one or more of the Justices regarding the denial (or, on occasion, the granting) of certiorari, including, if the Justice desires, his/her comments on the substantive issues involved.   Here, there is, or should be, little if any disagreement that the nbC definition is a substantive, if not central, component of Dr. Ayyadurai’s claims.

In this way, at least with respect to the Justice writing the opinion relating to, for example, the denial of a certiorari petition, lawyers, law students and the public might gain better insights into a future case where the substantive issue comes front and center where a certiorari petition is granted.

Third, the denial of Dr. Ayyadurai’s certiorari petition presented a golden opportunity for one or more Justices to prepare and/or join in an opinion relating to the denial expressing their views on the substantive nbC definition issue.  While a grant of the certiorari petition may have been clouded or foreclosed because of procedural anomalies which were present in the lower courts and tribunals (and there were several), the denial of the petition presented the perfect opportunity for a Justice to prepare an opinion relating to the order of denial which could have included illuminating discussions of the nbC issue.  Lamentably, no Justice saw a need to do that.

For example, the record in the case included several significant and substantive nuggets of evidence which support a conclusion that the Founders did, in fact, adopt the definition of an nbC corresponding to that set out by Swiss lawyer, jurist and legal scholar Emer de Vattel in Book 1, Ch. 19 § 212 of his 1758 treatise, “Le Droit des Gens,” or “The Law of Nations” (hereafter, for brevity, “ § 212”).  That definition was a person born on the soil of a country where his/her parents were already its citizens.

Indeed, the attorney for the New Jersey Respondents on the appeal, at an August 5, 2024 administrative hearing in the State of New Jersey Office of Administrative Law before Administrative Law Judge William Cooper III conceded, among other things, that Dr. Ayyadurai “was naturalized as a United States citizen in, I believe, 1983. He was born outside of the United States to parents who were not citizens of the United States at the time, and therefore he is not qualified on that basis to run for the office of President of the United States. And that is the sum and substance of our argument.” (Emphasis added) (See USSC Docket 24-342, Petition Appendix at 31a – 32a.)  This ruling seems clearly to state that a true nbC requires two citizen parents and birth in the United States.

This “admission against interest,” articulating the definition of a natural born citizen as being one born in a country to parents who were then its citizens, mirrors precisely the de Vattel § 212 definition. 

In addition, at that stage of the New Jersey proceedings before the New Jersey Secretary of State, the presiding officer, one Jessica Mayer, cited with approval the 2015 flawed Harvard Law Review Forum article by former U.S. Solicitor General Paul Clement and Acting Solicitor General Neal Katyal, “On the Meaning of Natural Born Citizen.” She stated: “Leading constitutional scholars agree that “the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time.” Paul Clement and Neal Katyal, “On the Meaning of’Natural 10a Born Citizen,'” 128 Harv. L. Rev. 161 (2015).  See USSC Docket 24-342, Petition Appendix at 9a – 10a.

The Clement/Katyal view is that if one is a “citizen at birth” or a “citizen by birth,” with no need for later naturalization proceedings, and regardless of parental citizenship or place of birth anywhere on the globe, that will suffice to be deemed an nbC.  Your humble servant posits that the Clement/Katyal article is deeply flawed and does not represent a definition of the nbC term with which the Founders would have agreed, as dissected here, here and here.  

If the pontifications of Messrs. Clement and Katyal are to become the “law of the land” on the nbC issue, why even bother the Supreme Court for a binding, precedential decision on the point? The answer, clear to some but obscure to others, is because it is the Supreme Court, not private lawyers, even well-credentialed ones, which has the “last say” on what the terms of the Constitution mean.

As even a cursory, but objective view of the evidence in the record of the Ayyadurai certiorari petition demonstrates, there are far more than enough evidentiary bases upon which to premise an opinion relating to the order denying certiorari review, if only the will to do so existed.

Indeed, those evidentiary points could have been the “hooks” for either (a) an opinion relating to the denial order dissenting from the order, with potential Justices Thomas and/or Alito and/or Kavanaugh as the author(s) or (b) an opinion relating to the denial order concurring in the denial, with potential Justices Sotomayor and/or Kagan (herself a former U.S. Solicitor General) and/or Jackson as the author(s).

Either way, at least there might have been a better “indication” or, as with John Jay’s July 25, 1787 letter to George Washington, a “hint” of what the full Court (or some of its Justices) believed was the correct interpretation of the nbC term.  Moreover, such an opinion would counter some of the negative comments the Court continues to weather regarding its apparent desire to continue “evading” the issue.

In point of fact, by passing altogether on the opportunity to sprinkle some “hints” over the nbC conundrum, the Court has done little to dispel the conclusion that it desires to keep evading the issue.  This is not a prudent decision, and it should change.  Perhaps a re-elected President Trump – should an opening appear – might appoint a Justice more interested in stopping the evasion of the issue rather than perpetuating it.