Tuesday, October 30, 2018
The Invalidity of the Proposed Executive Order on Statutory Grounds
Gerard N. Magliocca
Another fatal flaw in the proposed Executive Order that would create two legal classes of babies in this country (one born to citizen parents and the other not) is that there is a contrary federal statute on this subject. 8 U.S.C. Section 1401(a) defines citizenship as "a person born in the United States, and subject to the jurisdiction thereof." This statute was enacted in 1952.
Looks to me like 8 U.S. Code § 1401a tracks the language of the 14A, and thus was intended to copy whatever the 14A means. Thus, if the 14A means something different from what was said in Wong Kim Ark, then 1401a sides with the former. That said, overturning Wong Kim Ark at this late date would be quite a challenge. It seems very much worth noting, however, that Wong Kim Ark did not involve illegal immigration.
"It seems very much worth noting, however, that Wong Kim Ark did not involve illegal immigration."
Doesn't that beg the question, which was whether he was in the country in violation of the Exclusion Act or whether his birth in the country excluded him from that by virtue of the Citizenship Clause.
As for Andrew's point, statutes (unlike Constitutions) are interpreted according to their intent as of the time they were enacted. Since Wong Kim Ark was and had been the law for over 60 years at that point, it would be hard to see the statute as doing anything other than restating existing law. That's putting aside the fact that both the plain language of the 14th A and the debates from that era demonstrate the intent to codify jus soli.
There was obviously no dispute in Wong Kim Ark that the parents had lawful permanent domicile in the U.S. having legally immigrated to the U.S. In that sense, the issue then was different from the current issue of issue of parents who have immigrated unlawfully.
It's worthwhile to point out the legal stupidity of Trump's statement, but doing so does not address the main problem.
Trump is not saying this because he thinks it will work. He is saying it to rile up his base, who do think it will work, with another round of immigrant hatred. A President who foments bigotry this way is a disgusting, destructive, individual, and the followers he plays to need to wake up.
Exactly. Trump's history says he could not care less whether this works. That's not his aim. His aim is to drive his voters to the polls on November 6th. His means is appeal to bigotry and fear. And at this point, none of this is new or debatable: this is who he is and how he acts. Along the way he'll further divide Americans, and further inflame racial tensions, to the great pleasure of Russia.
The legal stupidity of Trump's statement is worth pointing out, but only as a prelude to identifying those real issues: how far down this road you go before the American Experiment is over.
Andrew Hyman's latest troll is multiply wrong. First, he just ignores the statutory construction point about the intent behind 8 USC Sec. 1401. The holding of Wong Kim Ark was controlling law at the time the statute was passed (the one he cited was merely the latest iteration of longstanding law) and therefore the courts would have to construe the statutory intent as consistent with that holding (absent clear evidence to the contrary). Here's the language from the case, holding that Wong Kim Ark was a citizen although his parents were not and, indeed, had permanently left the country:
"Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."
Second, assuming for the sake of argument that the category "lawful permanent domicile" had any meaning when Wong Kim Ark was born, the status of his parents was irrelevant in light of the universal language used in both the 14th A and the opinion.
Third, what Hyman seems to be implying is that "lawful permanent residence" made Wong Kim Ark's parents "subject to the jurisdiction" of the United States, whereas "illegal immigrants" are not. This is nonsense both textually and as a matter of common sense. Text first: the language of the 14th A doesn't mention parents at all. It mentions those "born in the United States". It's those people, people born in the US, who must be "subject to the jurisdiction" of the US: "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States". The dependent clause "subject to, etc." refers back to the subject of the sentence, that is, "persons born in the US", not to their parents. Babies born in the US are "subject to the jurisdiction" of the United States regardless whether the parents are here legally or not.
And that gets to the common sense of it all. Someone who's not "subject to the jurisdiction" of the US couldn't be tried for a crime committed here. That would be a nonsensical result, though perhaps MS-13 would like to hire Hyman as their attorney to make this argument. So even if the parents were relevant under the 14th A, and even if they are here without proper documentation, they're still "subject to the jurisdiction" of the US.
If you read e.g. http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/ it is clear that the conservative/rightwing legal intent here is make the claim that Trumbull (primary draftee of 14a) intended "subject to the jurisdiction thereof" to be synonymous with "having exclusive allegiance to". If you follow this reasoning, then clearly citizens of other nations who happen to be present on US soil do not have exclusive allegiance to the US, and are therefore not the subjects of 14a. They want to argue that the customary interpretation - that a person is subject to the legal and police authority of the US government - is not what was intended at the time of passage of 14a.
As you note, the first problem with this line of reasoning is that it really has nothing to say about what the children of people in this situation should be considered as, vis-a-vis jurisdiction/allegiance. You can make a case either way, or even down the middle, but it's non-obvious.
The second problem, as noted by Magliocca in his 2007/2014 paper, is that it is clear if you go back and read the congressional records from the passage of 14a that the wording of "subject to the jurisdiction thereof" had way more to do with the citizenship status of Native Americans than with "illegal immigrants" (a concept that mostly did not exist in the US at that time).
Another brief thought occurs to me, in support of Mark Field's point.
Just a couple of years ago, British politician Boris "The Brexit" Johnson was struggling with the question of his US tax liabilities. He had been born in the USA while his parents/mother was temporarily here. Because of 14a, the US government considered him "subject to the jurisdiction thereof". People like to talk about "birth tourism" as if it is always a boon to the newly born US citizen, but Johnson faced problems with likely legal action if he ever travelled to the USA or had certain kinds of financial interactions, specifically because he hadn't followed US (tax) law.
This is a person who clearly had UK citizenship in the eyes of more or less everyone, but merely because he was born in the USA became subject to US law (and acknowledged this, and took actions, I believe, to end this).
There's a great deal of discussion about the switch from "ligeance" to "subject to the jurisdiction thereof", both in the Wong Kim Ark opinion and in the brief for the US. There are 2 problems with the right wing argument. First, as you note, the text doesn't mention the parents at all. It refers to the children. Second, at English common law, "ligeance" attached at birth. Thus, Blackstone:
"Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign."
The majority in Wong Kim Ark discussed the common law history in tedious detail, concluding that jus soli was the English law and therefore was the understanding of the meaning of "citizen" at the time the Constitution was adopted. It's so strange for the wingnuts to overlook an originalist argument like that. I wonder why.
Mark - the Federalist Blog article goes to some lengths to claim that the US had already drifted significantly from (English) common law by the time the 14a was passed, and that its draftees consciously intended for it to differ from that.
"In early America the common law rule of “natural allegiance” was discarded as well as the rule of automatic citizenship to children born to aliens regardless of their condition. Other differences that differed from the common law were the general rule children born to transient aliens or temporary sojourners remained alien."
"The Fourteenth Amendment’s citizenship clause differed from the common law rule in that it required owing complete allegiance only to the United States in advance rather than automatically bestowed by place of birth, i.e., only children born to parents who owed no foreign allegiance were to be citizens of the United States – that is to say – not only must a child be born but born within the complete allegiance of the United States politically and not merely within its limits. Under the common law rule it did not matter if one was born within the allegiance of another nation."
Some of the quotes from the draftees around the time of passage are quite interesting. I don't know where this supposed quote from Trumbull comes from, but taken at face value, it's somewhat compelling:
"The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means."
Those arguments were made by the dissent in Wong Kim Ark. The majority went through them, again in tedious detail (did I mention the opinion is tedious?). They concluded that US law reiterated the common law.
Note that in all of this the shadow of Dred Scott lurks in the background, though the Court never mentioned it. That, after all, was the main reason why this clause is in the 14th A, namely to overrule Taney's conclusion that blacks couldn't be citizens. The reason that the Court in Wong Kim Ark engaged in a lengthy discussion of the common law was to reach the conclusion that "citizen" was originally -- that is, at the time of the adoption of the Constitution -- based on jus soli; therefore Taney was wrong. The Court then discussed US law after the Framing (also at length) and concluded that US decisions and statutes between 1787 and the Civil War also applied jus soli. By their reasoning, this clause simply reiterated that which had always been the law until it was twisted in Dred Scott.
That quote from Trumbull is probably out of context. If I get the chance I'll check. Or maybe our host can supply the context, since he tends to know this stuff off the top of his head. That said, even the quote itself means less than the wingnuts would like. It just restates the equivalence between "ligeance" and "subject to the jurisdiction". Whichever applies, attaches at birth.
Ok, Garret Epps discusses the misuse of the Trumball quote here: https://www.theatlantic.com/ideas/archive/2018/07/the-fourteenth-amendment-is-a-battleground-for-citizenship/565655/ Here's how Epps describes the context:
Trumbull actually was explaining “not owing allegiance” in the context about which it was written—federal Indian law as it existed in 1866. At that time, the United States recognized the governments of many Indian tribes as quasi-independent national governments, governed by treaty agreements. Native people on those reservations could not be sued in U.S. courts or punished for crimes on U.S. territory—so they were not “subject to the jurisdiction” of the U.S. Here is the actual quote from Trumbull: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.”
This Bloomberg article gives more detail: https://www.bloomberg.com/opinion/articles/2018-10-30/birthright-citizenship-puts-trump-judges-in-a-bind
"Looks to me like 8 U.S. Code § 1401a tracks the language of the 14A, and thus was intended to copy whatever the 14A means. Thus, if the 14A means something different from what was said in Wong Kim Ark, then 1401a sides with the former. That said, overturning Wong Kim Ark at this late date would be quite a challenge. It seems very much worth noting, however, that Wong Kim Ark did not involve illegal immigration."
You just failed statutory interpretation 101.
A statute that references positive law incorporates the governing interpretation of that positive law. Section 1401a thus incorporates Wong Kim Ark.
"There was obviously no dispute in Wong Kim Ark that the parents had lawful permanent domicile in the U.S. having legally immigrated to the U.S. In that sense, the issue then was different from the current issue of issue of parents who have immigrated unlawfully."
You just failed jurisprudence 101.
There are fairly recent Supreme Court cases that tell you exactly what Wong Kim Ark means. Those authorities are controlling (after all, the Supreme Court gets to tell us what their cases mean) and they say that Wong Kim Ark adopts birthright citizenship with narrow exceptions not relevant here.
Oh, and there is no bind here. This will very likely not get to the Supreme Court, being rejected by every District Court and Court of Appeals panel that hears it, and it is not going to get 5 votes if it does get there.
The argument that Wong Kim Ark is wrongly decided is seen as a kooky position even on the legal right. John Eastman is where you go when the conservative mainstream rejects your position. This is just not going anywhere.
The concluding sentence of Wong Kim Ark is:
"Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States." But this explicitly limits its holding concerning those who are not "permitted by the United States to reside here." Even further, one could say the implication of Wong Kim Ark is that is an exception to the normal rules of birthright citizenship apply when someone is not "permitted by the United States to reside here." And if this is the implication of Wong Kim Ark then the same would apply to 8 U.S.C § 1401(a)
Oh and concerning those more modern cases. They are all dicta (often in footnotes) which are not controlling on any lower federal court.
1. Have you ever actually argued a case in a lower court? Supreme Court dicta is, shall we say, HIGHLY persuasive.
2. Given the holding of Plyer, I would actually say that the citizenship discussion (which was 9-0) was necessary to the judgment and therefore a holding and not dicta.
Yes, of course I know that Supreme Court dicta is highly persuasive. I expect that Trump will likely be preliminary enjoined, lose in lower federal court (probably someone filing in the Northern District of California) and then the administration would appeal to the Supreme Court (which will likely grant). But the Supreme Court is a lot less concerned about ignoring dicta of prior cases than explicit holdings.
The holding of Plyer concerned the meaning of the Equal Protection Clause.
Devin's claim about the closing paragraph of Wong Kim Ark is wrong for several reasons.
1. The words he quotes are not the concluding words of the decision. They appear, in fact, near the beginning of the lengthy (have I mentioned this opinion is long?) discussion of the effect of the Chinese Exclusion Act on Wong Kim Ark's right to be readmitted to the country after leaving for a visit to China. The actual conclusion of the opinion reads as follows:
"No one doubts that the Amendment, as soon as it was promulgated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been, and yet, for two years afterwards, there was no statute authorizing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain classes of persons to be made citizens by naturalization could be allowed the effect of correspondingly restricting the classes of persons who should become citizens.by birth, it would be in the power of Congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white persons only, to defeat the main purpose of the Constitutional Amendment.
The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States." … [Discussion of whether Wong Kim Ark had renounced his citizenship, concluding that he had not]
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
2. As I've pointed out repeatedly above, the phrase "subject to the jurisdiction thereof" does NOT refer to the parents, it refers to the children, that is, to those born in the United States.
3. At the time of Wong Kim Ark's birth, there were no statutes limiting immigration to the US, nor was there any distinction made on the ground of race or ethnicity (a point the opinion makes repeatedly and at length). Nor, given the passage I quoted in #1 would it have mattered if there had been. Under those circumstances, the issue of whether Wong Kim Ark's parents were here "legally" was irrelevant.
4. To argue that the status of the parents is relevant is to reintroduce the doctrine of jus sanguinis, when the express purpose of the whole opinion was to confirm that the law of the US was and always had been that of jus soli.
The reference in the long quotation Mark Field provides to "are not employed in any diplomatic or official capacity under the Emperor of China" suggests that the children of foreign diplomats who happen to be born in the US do not therefore become US citizens. This in turn supports the general notion of jus solis birthright citizenship, in that it carves out narrow exceptions for (per Trumball) Native American tribal members and diplomats.
"Yes, of course I know that Supreme Court dicta is highly persuasive. I expect that Trump will likely be preliminary enjoined, lose in lower federal court (probably someone filing in the Northern District of California) and then the administration would appeal to the Supreme Court (which will likely grant). But the Supreme Court is a lot less concerned about ignoring dicta of prior cases than explicit holdings.
The holding of Plyer concerned the meaning of the Equal Protection Clause."
The holding of Plyer was that illegal immigrant children could not be excluded from school. That was based on a claim that they needed to be treated equally to the children of illegal immigrants born here-- i.e., because those children were citizens.
That makes the 9-0 holding that they are citizens a holding, not dicta.
At any rate, no, Devin, the Supreme Court does not routinely ignore its dicta. It follows it. Most of the time. Almost all of the time. Especially 9-0 dicta.
I might add that this issue kicked around the background of Hamdi v. Rumsfeld (and John Eastman urged the Court to take it up). Not one justice was interested in doing so-- they all presumed Hamdi a citizen.
This issue literally has no chance. Its only a few crazy racists on the Internet who advance it. It's a completely fringe theory.
btfjd is correct. Diplomats and their families are not subject to US law. They can't be arrested, for example. They therefore are not "subject to the jurisdiction" of US law. That has always been an exception to jus soli and still is.
@Mark Field: (1) Yes, it wasn't the closing paragraph, but it was when the Court first directly stated its conclusion. Notice in the part you have quoted includes that they "have a permanent domicil and residence in the United States" and "at the time of his birth." And as you noted, the court emphasizes that there was no immigration prohibition at the time of his birth. These are important facts that the Court specifically calls out limiting its conclusion.
(2) I disagree that "'subject to the jurisdiction thereof' does NOT refer to the parents." Instead it refers to the "reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also."
(3) It is a doctrine of jus soli (not jus sanguinis), in that it requires that at the time of birth on the sovereigns soil. But it is limited to the restriction that the parents owed at least temporary allegiance to the government (as any visa holder would) and the government granted them protection (by allowing them into the country). That is what makes them subject to the sovereign's jurisdition.
@ btfjd. Everyone agrees that the children of ambassadors are not subject to the US jurisdiction. They never agreed to even temporary allegiance to the sovereign. Likewise native american's (at the time) never agreed to even temporary allegiance to the US even when in the US territory.
@Dilan Believe what you want.
" I disagree that "'subject to the jurisdiction thereof' does NOT refer to the parents." Instead it refers to the "reciprocal obligations. "
This isn't something you get to "disagree" with. It's right there in the text of the Fourteenth Amendment. All persons born in the United States. We are talking about the kids. And then the and subject to the jurisdiction therof clause. Still talking about the kids.
Look, here's the deal. This is a nonstarter as constitutional theory. You got Trump appointed judges saying it is BS. You have the husband of his communications counselor, an excellent lawyer, saying it is BS. You have Eugene Volokh, who doesn't even think birthright citizenship is a good idea on policy grounds, saying it is BS.
So the question is, why do people on the Internet attach themselves to and passionately argue an issue that everyone who is actually smart and not completely hackish in the legal community says is complete BS?
And that gets back to racism. You guys just don't like that the 14th Amendment makes everyone born here a citizen, because you don't want foreigners in the country. So we have to listen to you guys and your theories that, as I said, everyone who actually knows something about this subject, right and left, thinks are nuts.
It's really a sad situation.
The question is what makes someone "subject to the jurisdiction thereof" and that can include the status of the parents. We know that it doesn't apply to the children of ambassadors for instance (which is a property of their parents). So it doesn't only refer to the territory on which someone is born.
There is one Trump appointed judge who has disagreed in the past James Ho, and he isn't on the Supreme Court which will decide this issue. I read his article long before this current controversy and I disagreed with it then. Get back to me when Gorsuch, Kavanaugh, Thomas, Alito, or Roberts says it is BS.
The guy who can't stand Trump, disagrees with Trump, big surprise.
No, actually as a policy matter I support making everyone born here a citizen. I just think that is up to congress to decide as a policy matter rather than mandated by the Constitution.
In response to Devin
1. No, that's not when the Court "first directly stated its conclusion". There were 2 issues in the case. The first was that of birthright citizenship, and the Court upheld that. The second was whether, even assuming birthright citizenship, the Chinese Exclusion Act could be used to bar Wong Kim Ark's re-entry into the US. The passage you quoted is from the beginning of that second half of the opinion and relates to the Court's conclusion that the guarantee of equal protection meant that the Chinese Exclusion Act could not bar re-entry.
Neither is it accurate to say that the Court was emphasizing the facts of Wong Kim Ark's parents' residence. They were, as the passage expressly states, simply repeating the stipulated facts of the case. That does not mean all of those facts were necessarily important or intended to distinguish his case from others.
2. Dilan dealt with this.
3. This fails as a result of 1 and 2 above. Again, there is no such limit in Wong Kim Ark.
"The question is what makes someone "subject to the jurisdiction thereof" and that can include the status of the parents. We know that it doesn't apply to the children of ambassadors for instance (which is a property of their parents). So it doesn't only refer to the territory on which someone is born."
This makes no sense. The fact that an exclusion is expressly applicable to group A does not tell us that the same exclusion applies to group B. In fact, by the principle of inclusion unius, it tells us the opposite.
As for the argument that Congress should be able to decide, that was (part of) the argument made by the dissent in Wong Kim Ark. Your argument that the language of the majority opinion supports your conclusion is contradicted by the fact that the dissent exists. You can't have it both ways. If the majority was wrong, just say so and argue that the dissent got it right. If the majority was correct, then don't try argue that it supports the conclusion reached by the dissent. And either way, don't try to argue that Congress should get to decide an issue expressly held controlled by the Constitution.
Your right just because we know that the children of ambassadors were not "subject to the jurisdiction" doesn't mean we know the children of illegal aliens are also not "subject to the jurisdiction." But what it does prove is that the properties of the child's parents can impact if the child falls within that clause.
The children of ambassadors is not specifically listed as an exception so that cannon of construction doesn't apply. Just because one thing falls within a generic description doesn't mean nothing else does.
The dissent in Wong Kim Ark believed that Congress should decide if the children of all foreigners, even though lawful permanent residents, should be get citizenship. I've talked to people who think Wong Kim Ark was wrongly decided and think the dissent was right, but I actually agree with the majority. That is that the Constitution guarantees to all people who have at least temporary allegiance to the United States (which would include all lawful residents, including in my opinion even tourist visa holders and even those who overstay their visa), and in exchange the government agrees to provide them protection, are "subject the jurisdiction of the United States" and their children would be citizens (as I believe the majority holds). But illegal immigrants who cross the border illegally do not fit within that description. They never agreed to have any allegiance to the United States. If a person sneaks across the boarder to commit an act of sabotage, they cannot be found to have committed treason as they never had any allegiance to the US. Likewise the government never agreed to provide them protection, it didn't even know they were in the United States so it couldn't agree to anything.
If Congress wished to, it can of course under its powers of naturalization allow the children of such people to be citizens, but that is up to Congress to decide.
Sneaking across the border to commit sabotage is Quirin, not the facts here. To compare undocumented immigrants to sabateurs is racist.
The question isn't allegiance, it is subject to jurisdiction. Plenty of people haven't pledged allegiance but are subject to jurisdiction.
Wong Kim Ark says very clearly that allegiance (of the citizen to the government) and protection (of the government to the citizen) is "subject to the jurisdiction": "The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country,..." "subject to the jurisdiction" = "birth within the territory, in the allegiance and under the protection of the country." Mere birth isn't enough, you also need allegiance/protection. And Ambassadors, Native Americans, and enemy solders are merely examples of the people who are within the territory but not under the allegiance/protection.
I did not say that undocumented immigrants are sabateurs. The question is, if a person in that situation had committed an act of sabotage, would they be guilty of treason? (not that they would actually commit an act of sabotage) If such a person had committed an act of sabotage and would still not be guilty of treason, then they are not truly subject to our laws. Treason can be committed by any person who owes allegiance to the United States, and this can include noncitizens. But such noncitizens must have at least temporary allegiance to the United States (see for instance Carlisle v. United States, 83 U.S. 147 (1872)). Normally visa holders would qualify. But a person who sneaks across the border (as in Quirin), would not be guilty of treason as they never agreed to any kind of allegiance (even temporary) to the United States. For the same reason, they wouldn't be subject to the jurisdiction of the United States.
"I did not say that undocumented immigrants are sabateurs. The question is, if a person in that situation had committed an act of sabotage, would they be guilty of treason? (not that they would actually commit an act of sabotage) If such a person had committed an act of sabotage and would still not be guilty of treason, then they are not truly subject to our laws. "
Well, they are only subject to 99.9999% of them.
And you will find few newborn infants in the ranks of saboteurs.
I wonder if it is at all relevant that there is no exception in the Amendment for the children of criminals.
Let me say first that Devin doesn't believe his own argument. Let's take diplomats. They aren't subject to the jurisdiction of the US and there's an important consequence of that -- they can't be arrested for any crime they commit here. That's what "not subject to jurisdiction" means. But if someone overstays a visa or sneaks across the border, that person CAN be arrested for committing a crime. And nobody -- not Devin, not anybody -- argues to the contrary. Yet the *reason* they can be arrested is precisely because such persons ARE "subject to the jurisdiction".
This segues nicely into Devin's argument. He's saying that Wong Kim Ark was decided correctly, but that the majority opinion placed a restriction on birthright citizenship that nobody then or since noticed: that the parents of Wong Kim Ark were required to have been in the US "legally" at the time he was born in order for him to have birthright citizenship. It's a condition precedent, as it were.
But this gets him into all kinds of problems:
1. This "requirement" has gone unnoticed and unenforced, affecting millions of people, for 120 years.
2. Any such "requirement" would have been irrelevant to his case because at the time Wong Kim Ark was born, there was no such thing as being in the US "illegally". There were no immigration laws at all. Cases are not precedent for issues not actually decided.
3. He has to argue that in order for Wong Kim Ark to be "subject to the jurisdiction" of the US, his *parents* had to be subject to such jurisdiction also, although the 14th A imposes no such requirement. To overcome this major difficulty, he now has to argue that the children of diplomats aren't citizens because such children take on the status of their parents, therefore others can and should take on the status of their parents. This, however, gets him back to the problem of what it means to be "subject to the jurisdiction". If the diplomats and their families can't be arrested, then by his own analogy that would have to be true of border crossers and their families.
4. As the Court pointed out in Wong Kim Ark (I quoted the passage above), giving Congress the power to control citizenship of those born in the US by deciding who can enter legally would defeat the whole purpose of making the provision part of the Constitution. Congress could, in the example they gave, have passed a law denying citizenship to Africans and their descendants. But the whole point of this clause was to give citizenship to such persons (the former slaves) and overrule Dred Scott.
In addition to what Mark says, the people advancing this position are advancing a notion ot "jurisdiction" that is completely alien (bad pun, I know) to the rest of the law.
"Jurisdiction" refers to power. It always refers to power. If a court has no jurisdiction it means the court either had no power to decide the dispute or no power over a particular party. If an arbitrator exceeds jurisdiction it means she had no power to resolve the issue she decided. If a Sheriff is out of his jurisdiction it means his power to act as a law enforcement officer is sharply limited. "Jurisdiction" always refers to power.
And yet here, we are to believe that in this one instance it doesn't refer to the United States' power (despite the United States being the referent in the clause) but rather to whether the child or the parents owe allegiance to some foreign government.
That would, if true, be a completely anomalous usage of the word "jurisdiction" in all of American law.
It is true that Diplomats are not normally arrested, but it is not that they cannot be arrested or prosecuted. This is because the US chooses to give diplomats this protection (in exchange for the foreign government doing the same to our diplomats). But foreign governments do sometimes waive diplomatic immunity and allow those individuals to be prosecuted for crimes committed here. But even when diplomatic immunity is waived, they cannot be convicted of treason. They never agreed to allegiance with the United States and as such cannot be convicted of that. A person who is not "subject to the jurisdiction of the United States" in the first sentence Fourteenth Amendment does not mean immune from all US crimes. Instead it merely means they never agreed to any kind of allegiance to the United States, which is why their children are not subject to the jurisdiction of the United States.
People have noticed this for a while. Why do you think Justice Brennan tried to argue against it in Plyler? But even he noted that the first sentence meant being born in the "geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance." (notice also he cites no case for his conclusion concerning illegal immigrants vs legal immigrants) But it is these principles of sovereignty and allegiance that are the key part. For an example of law professors who have discussed this I suggest you read (originally posted in 2007): https://papers.ssrn.com/sol3/papers.cfm?abstract_id=965268
Its true that Wong Kim Ark is not binding precedent for this claim. There are parts of it that are suggestive dicta, and the reasoning of it seems to apply, but it is true that wasn't the issue directly before the Court.
Its simple, the child is "subject to the jurisdiction of the United States" if they are born within the geographic territoriality of the United States while their parents have at least temporary allegiance and were granted the protection of the government. The last two are not true for ambassadors, native Americans, enemy occupiers, or illegal immigrants who sneak across the border. This is the law of natural born citizenship or natural born subjectship going all the way back to common law England in Calvin's Case by Sir Edward Coke.
Treason is special as far as laws go. Go read Calvin's Case by Sir Edward Coke and you will see treason mentioned a lot because it has such a close relationship to citizenship and if someone can be a natural born citizen. Go look at Kawakita v. United States, 343 U.S. 717 (1952), and you will see that close relationship. That is the case where the United States citizen was convicted of treason for actions that occurred outside the territorial jurisdiction of the United States. But they were still subject to the political jurisdiction of which treason and the first sentence of the Fourteenth Amendment refer to.
"Its simple, the child is "subject to the jurisdiction of the United States" if they are born within the geographic territoriality of the United States while their parents have at least temporary allegiance and were granted the protection of the government. The last two are not true for ambassadors, native Americans, enemy occupiers, or illegal immigrants who sneak across the border."*
It's simple as a policy argument, but it's not based on anything in the Constitution or the case law. You're making it up. There's nothing in the Constitution itself, in the legislative history, or in the case law to support it. To the contrary, there's a great deal to be said against it as can be seen in the comments here and posts here and elsewhere. You've yet to supply a surviving argument against any of those points, other than the policy argument you've now made. If you want that to make that the law, fine -- amend the Constitution.
*I don't know why you bring up Calvin's Case or the issue of what it means to be a "natural born" citizen. That's a separate issue, limited to eligibility for the presidency (Afroyim v Rusk; Rogers v Bellei; Schneider v Rusk; et al.), unless your position is that naturalized citizens can't commit treason. Hint: they can.
Calvin's case is the foundation of birthright citizenship under English common law. Yes, it helps define who is a "natural born citizen" under the requirements for President. But it also determined who was a citizen by birth prior to the Fourteenth Amendment. There were many people, at least in the north, who were both black and a citizen, including that they voted in the ratification of the Constitution. Dred Scott v. Sandford changed that saying that a black man could never be a citizen. The radical republicans wished to restore what they believed was the correct interpretation of the Constitution (that all men had the same ability to be a natural born citizen as white men) and in so doing reverse Dred Scott with the Fourteenth Amendment. So it is of course critically important to understand the common law as it existed prior to Dred Scott. And that is why it is mentioned in Wong Kim Ark (including a whole section on English common law in section II, and then in section III it shows how "The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."). Its a basic cannon of construction to disfavor derogation of common law. The meaning of the terms of the Fourteenth Amendment have to be read in light of what had already existed in the area of birthright citizenship.
My argument is based on the common law understanding of birthright citizenship prior to Dred Scott and I believe fully explained and endorsed by the majority in Wong Kim Ark. It is true the court in Plyer (mostly) said otherwise in a footnote that I believe is dicta (but even it noted the pure territorial view could potentially be bounded by principles of sovereignty and allegiance). That is a lot more than as "simple as a policy argument." And I haven't even started to mention legislative history, of which there is plenty to believe such an understanding.
(well not entirely determined, it determined who was a natural born citizen and then Congress extended that with statutes to also include more people under its powers over naturalization)
"Its simple, the child is "subject to the jurisdiction of the United States" if they are born within the geographic territoriality of the United States while their parents have at least temporary allegiance and were granted the protection of the government. "
1. You are making this up.
2. Everyone in the country has the protection of the government. Murdering an illegal alien is still murder.
As to byomtov's point #2, at the time Chinese immigrants were considered subjects of the Emperor of China notwithstanding their presence in the US. Nevertheless, the debates on the 14th A expressly noted that point and yet the supporters said that children of such people would be citizens.
To follow up my last point, here are the relevant portions of the Wong Kim Ark opinion:
"In the courts of the United States in the Ninth Circuit, it has been uniformly held, in a series of opinions delivered by Mr. Justice Field, Judge Sawyer, Judge Deady, Judge Hanford, and Judge Morrow, that a child born in the United States of Chinese parents, subjects of the Emperor of China, is a native-born citizen of the United States.....
Mr. Conness, of California, replied [to a question about the citizenship of ethnic Chinese born in the US]:
The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States. . . . We are entirely ready to accept the provision proposed in this Constitutional Amendment that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others."
I mention this because at British common law nobody could give up or renounce the citizenship into which they were born. Once in allegiance to a King (any King), always in allegiance to that King. As the above quotes demonstrate, the 14th A intended the contrary. Allegiance to a foreign government was irrelevant to the citizenship of their child.
1. Go read section II of Wong Kim Ark
2. Yes killing illegal aliens is murder, so is killing ambassadors. That isn't the kind of protection that is being referred to. It doesn't have to do with the specific municipal laws, but with the duty of the sovereign.
As I said Wong Kim Ark was rightly decided. The Chinese immigrants were lawful permanent residents at the time they had a child and as such the child is a citizen per the Fourteenth Amendment.
Yes in British common law no one could could give up or renounce their subjectship. But we are not subjects of a King anymore. After the declaration of independence, we used the words citizen rather than subject and a key part of that transition is that citizenship can be given up while subjectship cannot. Otherwise the two terms are almost the same.
"It doesn't have to do with the specific municipal laws, but with the duty of the sovereign."
If this were true, the word "jurisdiction", which always refers to power, not duties, would not have been used.
Query: To what extend may Section 5 of the 14th A permit Congress to "define" "subject to the jurisdiction"? Or is such "defining" limited to SCOTUS?
Devin's/Unknown's comment at 11:44 is correct. The rest of what he's said in this thread is not.
Final (I hope) comment: the distinction made between "lawfully here" and "not lawfully here", whatever its merits as policy, cannot be used to make arguments about the history of the 14th A. The reason is that US law at that time made no such distinction. There were no immigration laws, so nobody was "not lawfully here". Devin/unknown is taking today's controversy and imposing it back in time. That's not history, that's ideology.
@Dilan. Although we often refer to the territorial jurisdiction of the United States today, that isn't always the way it was referred to when the 14th amendment was drafted. Instead it referred to the political jurisdiction (which is allegiance and the protection) as the Court noted in Wong Kim Ark:
"Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides..."
Or under the naturalization acts (from the very first Congress) which required for someone to be considered for citizenship that they have lived "within the limits and under the jurisdiction of the United States." Those are two different requirements that are usually, but not always, the same. One example of when they were not can be seen in McKay v. Campbell, 16 F. Cas. 161, 164 (D. Or. 1871).
Or look at Elk v. Wilkins, 112 U.S. 94 (1884): "The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."
In each of those sentences there's an "and". Allegiance and jurisdiction are two separate, but connected, things.
"and consequently" says that "allegiance and the protection" causes a person to be "subject to the jurisdiction." Its like saying "and therefore..." I think Elk is very clear that the clause requires such allegiance.Post a Comment