The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
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eligible to seek the office of President of the United States (the "Natural Born Citizen Clause"), has been implicitly repealed by subsequent amendments to the Constitution.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.
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.*fn1
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.
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)).
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 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. 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." Posadas v. Nat'l City Bank of N.Y., 296 U.S. 497, 503 (1936). "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." Id.; see also Branch v. Smith, 538 U.S. 254, 273 (2003). "[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).
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 . . . ." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). 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 ...