Said 5th Circuit Judge James C. Ho, quoted in "Is Trump’s Plan to End Birthright Citizenship ‘Dred Scott II’?/The 14th Amendment overturned the 1857 decision that denied citizenship to Black people. Scholars say President Trump’s proposal betrays that history" by Adam Liptak (NYT).
The 14th amendment language, written in the context of acknowledging that the freed slaves are citizens, is "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The textualist debate focuses on "subject to the jurisdiction thereof." What did that mean to exclude?
“It excludes those persons who, for some reason, are immune from, and thus not required to obey, U.S. law,” [Ho] wrote. “Most notably, foreign diplomats and enemy soldiers — as agents of a foreign sovereign — are not subject to U.S. law, notwithstanding their presence within U.S. territory.”
As you can tell from the headline, Liptak uses the importance of the citizenship of the freed slaves as a reason to read the phrase in the spirit of inclusiveness. Apparently, the Trump administration will group those entering the country illegally with enemy soldiers. It's an "invasion." We'll see the legal and political effects of this debate about what the Constitution means and what people wish it would mean.
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130 comments:
However much we may like to describe the influx of illegal immigrants as an invasion, the fact remains that they are subject to US jurisdiction while they're here.
Just exclude this alive during the Civil War from the revision, bringing in both sides.
“Scholars say…”
Listen to the educated class. But only the ones we bring forward.
The times are different now.
Now we have millions of Illegal entrants - LET IN by a corrupt president. Let in ILLEGALLY. Biden and his cabal broke the law.
This has nothing to do with "freed slaves"
This is a important discussion that I honestly am still wrestling with, so I appreciate this post and conversations.
The issue of invading armies does seem relevant. While not subject to the jurisdiction, enemy combatants certainly can be captured and their actions assessed as to potential criminality. Those who are captured may even be imprisoned for a long time, and those who commit crimes are punished based on international law as well as local laws. They may even be executed. But the key issue to me seems to be that in such cases, at the root, the US rejects the imposition of jurisdiction, first by preventing their occupancy and then by repatriating them back to their actual jurisdiction.
Anything subsequent to this rejection of jurisdiction is a temporary action until such a time comes where repatriating can take place. In other words, the only primary jurisdiction, the fundamental responsibility, the US has over those not legally present is to remove them from US controlled territory.
Where is this reasoning off track?
This doesn't address issues of temporary visas or those on vacation. Though I wonder how the issue of Britney Griner would be relevant. In that case, the position held by many was that while she did violate the laws of Russia, she was not actually subject to Russia's jurisdiction, so there was outrage that she was treated as such by Russian authorities.
I doubt the Supreme Court will interpret the 14th Amendment. Birthright citizenship was enshrined in statute in 1952, amended several times over the next 4 decades. The Court will not reach a constitutional question if the issue can be resolved by statutory interpretation. No question Congress took the broad view. Unless Trump gets big turnover in midterms the statute is not getting changed his way. His minions know this and are playing a cynical game.
"in the spirit of inclusiveness."
For people like Adam Liptak, I'm sure their "spirit of inclusiveness" basically means come one, come all for every single person on this planet. You can't be a Russian, or Chinese, or Japanese, or Zimbabwean, but everyone else on planet Earth sure gets to be an American whenever and however they put their pinky toe on US soil.
Vance is 100% correct. Our immigration and citizenship policies are a planetary joke. More than half the world's people live under regimes that put them at nowhere near the disadvantage ours does, and I can tell you factually that the people who abuse our broken system secretly laugh at us.
"Most notably, foreign diplomats and enemy soldiers — as agents of a foreign sovereign — are not subject to U.S. law, notwithstanding their presence within U.S. territory."
Logical errors for $50, Alex.
This is like the lawyer who said that his client's sweaters did indeed "contain 100% wool" and then pulled a single strand of wool from one and struck a match to it to prove that the fiber in question was "100% wool."
Whatever the legal mumbo jumbo, birthright citizenship is being abused, and most countries don't have it for a reason. Whatever conditions obtained in the past, things are different now.
Doesn't apply to tourists or students here on student visas either. A more apt term would be intruder. They are not under the jurisdiction of the United States as long as they have no legal status and have no allegiance to the United States.
If A then B. A being here illegally, B being repatriation.
If not A, where one is here legally, then C, where there is a mutual agreement of jurisdiction involving all the rest of the rights and laws of the US (and other subsequent legal authorities).
If B, there is no getting to C. Even if B involves certain stages of state controlled application of legal remedies, these remedies are an expression of rejection of jurisdiction not an expression of jurisdiction.
If I go to a university and sit in on a class, doing all the work and getting graded for it all, then they find out I never registered or never paid, then the grading in that class is moot. The remedy is to be removed from the class. The professor doesn't have jurisdiction over me because the school does not recognize my participation as valid to begin with.
I could argue the status quo too, born here means being under the jurisdiction, but that approach seems well established and assumed.
It is long past time for legal clarification in the modern age. It is time for legal clarification - in light of a corrupt president (Biden) and his loyal cabinet picks who dutifully broke the law.
They broke the law under our noses... and forced a media black-out to reality - while they shipped illegals all over the nation - and placed many of them in hotels at our expense.
why this squirrel focus/divert on 'subect to jurisdiction'
did 'slaves' need to be naturalized or is 14A effectuating?
Except for the logical contradiction: had the illegal immigrants subjected themselves to US jurisdiction, they wouldn't have illegally immigrated, nor remained here illegally.
Then there is this seemingly bizarre conclusion: The US, which has jurisdiction over its own citizenship requirements, doesn't have jurisdiction over to whom it awards citizenship.
I do believe that children of legal permanent resident non citizens would be citizens at birth
"The 14th Amendment overturned the 1857 decision that denied citizenship to Black people. Scholars say President Trump’s proposal betrays that history" by Adam Liptak (NYT)."
I'd say the "scholars" interpretation betrays that history. The 14th Amendment was enacted for the benefit of the freed slaves, period.
If a pregnant woman enters your house and has a baby there, does the woman and baby gain the right to stay?
I caught that too. "Experts Say" "Top. Men." Whom we should believe!!
While this is litigated, propose an Amendment that only those who have a parent who is a citizen or permanent lawful resident may be born a citizen. Specifically exclude those born in US whose parent is not a citizen or lawful permanent resident from birthright citizenship. So no birthright citizenship for children of visa holders or illegals.
invader (noun):
A person or group that invades a country, region, or other place.
Someone who enters a place, situation, or activity in an unwanted or unexpected way.
I see this argument a lot on social media. It makes me wonder what you think "jurisdiction" means. If an illegal robs a gas station, can they be arrested, tried, and jailed? Or are they above the law?
There is nothing bizarre about the second claim--in a system where the citizen is (at least conceptually) superior to government, it would be bizarre to not limit the government's ability to decide who is and who is not a citizen.
What's Dr. Fauci's opinion of this?
The American Indians were "here" before the US was, but they nonetheless were not considered to be "under US jurisdiction", because they were under tribal jurisdiction. So, the "fact" not only fails to remain, it was never there in the first place.
Birth tourism exists. Wealthy women in foreign countries can travel to the US to have their baby, and secure a valuable future option for their child. How is this good for America?
Good on Trump for testing birthright citizenship. The courts will decide, then we will know.
The question is not what Hey Skipper thinks "jurisdiction" means, nor what you think it means, it's what the people who wrote the law thought it meant. And they made it clear that Indians were not subject to US jurisdiction.
Children of an invading army are usually citizens. They come from raping the women to humiliate the husbands.
Re: "subject to the jurisdiction thereof"...
Are those illegal aliens being protected in sanctuary cities being subjected to the jurisdiction of the US government? Sure doesn't seem so.
Jonathan Turley: "When the 14th Amendment was drafted, some of the individuals involved in that process, some of the members of Congress said that they believed it did not extend birthright citizenship and that has really fueled a lot of this debate.”
More Jonathan Turley: But the Trump administration may win either way. That is, if they lose in the courts, this is going to be playing out right before the midterm elections,” Turley continued.
“Most citizens, it seems like in polls, the majority of citizens do not approve of birthright citizenship,” Turley said. “We’re in the minority of countries recognizing birthright citizenship. That may be what the Trump administration is looking for. If they lose in the courts, they could start a constitutional amendment campaign. This is a wedge issue that they might invite.”
Disagree. The Constitution is superior to any statutes. And since we are all originalists now, the case has to be decided based upon what the drafters of the 14th Amendment thought and the plain text.
I'm intrigued by the obsession with "jurisdiction". If we're going to read that word so plainly, then we should also read the word "reside" plainly. If the person who was born no longer resides in a state of the United States, then they are not under the jurisdiction of any state. If they are no longer under the jurisdiction of a state, then they are also not under the jurisdiction of the United States, and therefore no longer eligible to be citizens.
Such a simple, plain reading would eliminate the anchor babies aka birth tourism. Once we solve for that case and we start deporting mamacitas and their bambinos, the issue of jurisdiction is resolved.
Did Adam Liptak or Judge Ho even address the Native American issue. That’s the key.
A person that sneaks over the border unchallenged is here illegally, and hence has not been subject to jurisdiction. The simiarities to 'Invading army' overwhelm any other classification, whether they're hostile or friendly.
A person that is confronted at the border, then allowed to pass a-la 'Catch & Release' has similarly not been 'subject to jurisdiction', since the presiding authority chose not to enforce the laws of the land. Or alternatively, if provided with a court date and some kind of extension, if at any point ignored, holds similarly true.
I know quite a few women that came to the US on tourist visas and popped out a kid to claim US citizenship. It's going to be very difficult to rescind these, especially if there are other family connections (citizen) here.
It's a mess, but it's a solvable one. The US should not be a birthright destination for pregnant women. Let's start with the easy ones, and work our way through it. Governance 101.
It's even more than the Native American issue. There a a substantial number of carve outs that create legal exceptions to the carte blanche born-of-this-soil citizenship. Anyone focused solely on the meaning of 'jurisdiction' without attending to those other carve outs is just pounding the table.
This. The American people are fed up with mass illegal immigration.
Jupiter:
1st post: the Indians are not under US jurisdiction while they are on reservations, because, by treaty, those reservations are independent states. If they leave the reservation to come onto US soil, then they are.
2nd post: This is sufficiently obvious that I don't see why you bothered to say it.
I trust that all of these birthright citizens are filing their federal income tax returns. If any of them tries to claim US citizen privileges, like getting a passport, they should have to show they have filed and paid their taxes since birth. This would demonstrate that they are subject to US jurisdiction.
For example, Boris Johnson, ex-PM of Great Britain, was born in New York City and spent his first 3 months here before his parents returned to England. Apparently, he never considered himself a US citizen. Many years later, he sold a home in London at a large profit. To his surprise, the IRS came after him for US income tax on the gain. Citizenship has its privileges and obligations.
Is it not within Congress's purview to decide who is "subject to the jurisdiction thereof [the United States]" by legislation, and thereby eliminate any need to engage in constitutional interpretation or amendment to restrict birthright citizenship?
There are three issues to argue.
What is the law. Whether the law is good or bad, right or wrong, what is legal is what we must, MUST abide by. If the understanding of the 14th was that it applied to people we brought here, aka slaves, but not to people who we did not allow here No just natives and ambassadors, but people not invited), then anchor babies would not be legal.
If Anchor babies are deemed illegal, we would then need to determine if the new ruling would be retroactive, and if so, how far back. My soon to be daughter-in-law would be deemed an anchor baby, being born in the US to people not invited. After 21 years of acting and, yes, paying taxes, it would be hard to see that ended without consideration to the person who did not break the law herself. This would be different for a person born here, brought back to a home country and raised there. Maybe the cutoff could be after5 or 10 years residency.
Finally is what is right and sane for a nation to establish its authority on who is a citizen. If the 14th is ruled liberally to include everyone born here except diplomat children, we have do decide whether we want to make that change. The left wants anchor babies because it serves the politically, not because it benefits the country. But as Turley surmised, it would be a losing position to take and could hurt them politically. Clinton and Obama read the tea leaves in their time and, at least publicly opposed extremism on the immigration front.
Ultimately, birthright citizenship is a poor policy. Citizenship rights belong to the people of the nation, not a right for others to exploit against the desires of the people of the country in question.
I absolutely guarantee that the USA-born children of diplomats are given the exact same type of birth certificate as any other child, allowing them to easily obtain a USA passport. Check with the officials of NYC and DC Vital Statistics and Records and you'll find they do not track or otherwise record this status.
I am struck how the analogy between "invasion" and "illegal entry" is easily disguised by the connotations of those terms. "Illegal entry" invokes the decision of an individual to cross a border without the legal right. But it seems an exaggeration to call that an "invasion." An army crossing a border invokes an "invasion." But it seems a ridiculous understatement to call that an "illegal entry."
Only scale and perhaps visibility separate what are denotatively analogous acts.
"Scholars say"
Nice articles on the meaning of subject to the jurisdiction clause in the 14th Amendment.
https://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/
Also,
"Scholars today generally presume that all individuals born on
United States soil are United States citizens, under a theory that
the Fourteenth Amendment mandates a universal birthright
citizenship in the nature of the English common law’s jus soli.
While it is indeed clear that the Constitution recognizes that
citizenship is the birthright of certain U.S.-born individuals, both
textualist and originalist analyses of the Citizenship Clause
substantially undermine assertions that birthright citizenship
must be applied universally to all persons born on U.S. soil,
regardless of the immigration status of the parents. The framers
and ratifiers of the Fourteenth Amendment had a distinct
understanding of the Citizenship Clause’s jurisdictional element
that is incompatible with true jus soli. The Clause’s purpose was
to ensure that there would no longer exist in the United States a
class of persons relegated to perpetual noncitizen status on the
basis of race, despite not owing allegiance to any other foreign or
tribal power. This more limited application of birthright
citizenship was adopted by the earliest commentaries on and
Supreme Court assessments of the amendment. Supreme Court
precedent itself extends only to the premise that the U.S.-born
children of lawfully present, permanently domiciled aliens are
citizens even where the parents are excluded from naturalization.
This limited premise is consistent with the Amendment’s purpose
of foreclosing the possibility that the United States would create
generations of permanent resident noncitizens who nevertheless
owe permanent and undivided allegiance to the United States. To
the extent the Supreme Court appears to have adopted common
law’s jus soli, the “American” jus soli must be understood as a less
rigid version than its English counterpart, reformed to make it
consistent with the Amendment’s original purpose and scope. This
indeed appears to have been the Court’s intent with its principal
decision regarding birthright citizenship in United States v. Wong
Kim Ark. Finally, while United States naturalization law no
longer risks the creation of lawful resident classes held perpetually
to noncitizen status, immigrant aliens—unlike illegal or
nonimmigrant aliens—are subject to the complete jurisdiction of
the United States for purposes of birthright citizenship.”
SUBJECT TO THE [COMPLETE] JURISDICTION
THEREOF: SALVAGING THE ORIGINAL MEANING OF
THE CITIZENSHIP CLAUSE
AMY SWEARER*
Texas Review of Law & Politics Vol. 24, p. 135 et seq. (2020)
Illegal aliens (in the act of entering illegally)expressly reject the subjugation of US law. There is only one remedy which is the voluntary act of self removal to the nation of which they are legal citizens. I’m hard pressed to see any logic that children (innocent as they may be) are entitled to benefit from the illegal action of their parents.
If you argue that the enforcement of law is cruel I won’t disagree, that is however the very essence of law enforcement.
Prosecutorial discretion in choosing to enforce or look the other way depending upon the political whim of the executive in charge is exactly why we’re where we are today.
In the NYT Stephen Miller video, the expert says birfright citizens united is a keystone of flooding the zone creating distractions and absorbing radar protecting many other EO's. It's already a win for the administration and cementing their base even if they lose.
Everyone that wants to say that the 14th Amendment says everyone born here (save children of foreign ministers and occupying forces) is a citizen need to square the fact that the 14th as adopted (and understood by legal experts) expressly allowed for multiple categories of people to NOT be citizens by birth. Indians received their citizenship via law in 1924. Puerto Ricans are only citizen by law, and American Samoans are not citizens by birth. Clearly the wording of the 14th amendment does allow for some people born here to not be citizens, why is it that those here on temporary visas, or those here illegally, are not in those categories.
Further, it is my understanding (please correct me if I am wrong) the side that says born here means automatic citizenship are claiming this is so because of Common Law. But Common Law already recognized that the child born to diplomats and foreign ministers, and the children born to occupying forces were never viewed by Common Law as citizen by birth. Which means if Common Law were the prevailing interpretation here then the 14th could say “All persons born or naturalized in the United States are citizens of the United States and of the state wherein they reside.” In other words the phrase "and subject to the jurisdiction thereof" is unnecessary and superfluous - implying it must have an additional meaning. Please explain why this is not the case.
Lastly if you look at the Congressional Globe for the transcript of the Senate when they were debating clause 1 as it was adopted, Senator Howard stated "This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country." Please explain if the Senator that introduced the "jurisdiction" language and believed the amendment offered did exactly what he stated above why that should not be the interpretation of the 14 Amendment clause 1.
@Tim: I see this argument a lot on social media. It makes me wonder what you think "jurisdiction" means.
I think it could mean, depending on the usage, a couple of things. One meaning is being located within the jurisdiction's geographical boundaries.
Alternatively, there is a consequential meaning: to be "under jurisdiction" means to comply with the jurisdiction's requirements.
There is nothing bizarre about the second claim--in a system where the citizen is (at least conceptually) superior to government, it would be bizarre to not limit the government's ability to decide who is and who is not a citizen.
I perhaps typed unclearly. Birthright citizenship ship extended to the children of illegal immigrants means the government does not have the ability to deny citizenship, even though it had the power to deny illegal immigrants entry in the first place — the power to obtain citizenship lies with the illegal immigrants, not the government.
@Jupiter: "The question is not what Hey Skipper thinks "jurisdiction" means, nor what you think it means, it's what the people who wrote the law thought it meant ..."
I am all about originalism, but it might hit a wall here. The 14A's text covers the issues of ex-slave and Indian citizenship. It did not address illegal immigration, because, at the time, it wasn't an issue, certainly not in the tens of millions.
So, even if the words have textual meaning, it is impossible to say how the 14A would have been worded had the authors considered the possibility of mass illegal immigration. We can surmise the 14A would have then excluded illegal immigrant birthright citizenship, but (sfaik) would be creating that conclusion.
"Scholars say that President Trump's proposal betrays that history."
Slavery ended over a century ago. Times have changed.
tm:
Indians were not considered to be under US jurisdiction, without regard to where they were located at any particular time. They did not become US citizens by leaving the reservation, or even by being born off the reservation. You are insisting upon interpreting "under US jurisdiction" to mean "subject to US law". But that is obviously not what the authors meant.
That seems undeniable, without either amending the 14A, or through a new amendment.
I like the light this throws on the subject.
We don’t deny citizenship to persons in the United States for whom no other natural citizenship exists. Are there any exceptions that children born to foreign nationals are born with natural citizenship in the nation of their parents origin?
See Gordon Pasha's comment at 1:15, particularly the last couple sentences.
As an anecdotal example to muddy the waters,
I know someone born to American parents who at the time were living in Canada legally (as landed immigrants in about 1960) who, when he turned 18 was required to declare his citizenship. He chose to be counted a United States citizen.
Also during the last year I was privileged to witness the Citizenship swearing in ceremony and was surprised that the oath included swearing an allegiance to the US which was essentially identical to the oath I swore when entering the US. Navy,
We'll see the legal and political effects of this debate about what the Constitution means and what people wish it would mean.
…iow what a functional judiciary does. Feels so new and novel at the moment…
Excellent comment.
Not sure Dave is right - the Constitution provides who must be a citizen by birth, but does not necessarily eliminate the possibility that Congress can grant birth-right citizenship to additional classes of people.
However, not sure Readering is right, because the statute (8 U.S.C. § 1401) exactly tracks the language of the 14th Amendment and thus offers nothing new or different and provides no clarity as to what "subject to he jurisdiction" might mean.
That's a long law. Section 202 (3) an alien born in the United States shall be considered as having been born in the country of which he is a citizen or subject, or if he is not a citizen or subject of any country then in the last foreign country in which he had his residence as determined by the consular officer; Oh, born in the US, not a US citizen....
Citizenship by birth is covered in Title 3 Chapter 1- and is the 14th amendment, basically. Well, much deeper then that as it goes on, but it doesn't say "Born here, citizen!"
NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
SEC. 301. (a) The following shall be nationals and citizens of the
United States at birth:
(1) a person born in the United States, and subject to the
jurisdiction thereof;
(2) a person born in the United States to a member of an
Indian, Eskimo, Aleutian, or other aboriginal tribe: Pro^ided^
That the granting of citizenship under this subsection shall not
in any manner impair or otherwise affect the right of such person
to tribal or other property;
(3) a person born outside of the United States and its outlying
possessions of parents both of whom are citizens of the United
States and one of whom has had a residence in the United States
or one of its outlying possessions, prior to the birth of such
person;
(4) a person born outside of the United States and its outlying
possessions of parents one of whom is a citizen of the United
States who has been physically present in the United States or
one of its outlying possessions for a continuous period of one year
prior to the birth of such person, and the other of whom is a
national, but not a citizen of the United States;
Interesting part, to me- if US citizenship interferes with tribal rights- then not a citizen...
I mentioned this in a previous comment on another thread- someone who employed the son of a Russian diplomat who simply said - "I'm a citizen, I was born here."
I think that the rape was considered part of the pay, didn't Goethe say that in Faust?
Castles, with lofty ramparts and towers,
Maidens disdainful Both shall be ours!
Bold is the venture; splendid the pay!
Lads, let the trumpets for us be suing
—Calling to pleasure, calling to ruin.
Stormy our life is; such is its boon!
Maidens and castles capitulate soon.
Bold is the venture, Splendid the pay!
And the soldiers go marching,
Marching away! - Soldier's song
I think the humiliation was just a bonus.
Most crimes are punished by fines or incarceration, but breaking USA immigration law is rewarded by giving the violators' children USA citizenship.
Assume for the moment that a pregnant alien female enters the U.S. illegally, bringing a 1-year-old child with her. While here, she delivers a baby. So the baby becomes a U.S. citizen, but the 1-year-old child doesn't. Why the special right for the newly born baby? What does the act of happening to be born here have to do with becoming a U.S. citizen? Why is this random event such an important reason to grant the right of citizenship to migrants?
"Except for the logical contradiction: had the illegal immigrants subjected themselves to US jurisdiction, they wouldn't have illegally immigrated, nor remained here illegally.
Then there is this seemingly bizarre conclusion: The US, which has jurisdiction over its own citizenship requirements, doesn't have jurisdiction over to whom it awards citizenship."
Um no.
First, the intention of the immigrants re jurisdiction is irrelevant, the question is whether they are in fact subject to jurisdiction.
Second, of course the US decides, but it must decide consistent with its own constitution, which it is also free to amend.
They sure picked a weird way of saying that.
A good point - being susceptible to an arrest for murder (which is a state crime) is not the same as being subject to Federal US Jurisdiction.
A few comments here:
1. The invading army analogy is very weak and at best only touches on a subset of the people covered by Trump’s executive order, those whose parents made an unlawful entry and were not given permission to stay. Those whose presence here is lawful but temporary can’t be called invaders, nor those who entered legally but overstayed, nor those who entered illegally but were allowed to stay.
2. The “subject to the jurisdiction” clause applies to the person claiming citizenship under the 14th Amendment, to the child not the parents. The child of a foreign diplomat gets the same immunity from U.S. law as the diplomat. The child of an immigrant is subject to the same laws as other U.S. residents.
3. The 14th Amendment is a grant of citizenship but didn’t create citizenship and isn’t exclusive. Congress has granted citizenship to a number of classes of people not covered by the 14th Amendment. Trump would be on firmer ground if he could get legislation passed implementing his proposed new policy or, better still, a Constitutional Amendment.
4. Trump’s order grandfathers anchor babies born before his order takes effect, which acknowledges that they are citizens and seriously undercuts his argument that people born after that date in similar circumstances aren’t citizens.
5. Trump’s executive order sounds in unlawfulness: “no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to persons in his two proscribed classes. You may be a citizen but petulant Trump isn’t giving or accepting your documentation.
Other than the US, there are only two or three Third World shitholes that tax all income earned by their citizens anywhere in the world, and said shitholes don't really have any way of enforcing it on expatriates. We can and do, to the point that it is becoming a real challenge for U.S. citizens to find foreign banks that will open an account for them.
I don't have any plans to work overseas, but it still sticks in my craw that American citizens are subject to this abuse by a monster government that sticks its hands in our pockets everywhere we go.
It's a bit like the Cuban embargo. Yes, Castro was a tyrannical bastard, but half the countries on the planet are run by tyrannical bastards, and I am a free American who should be allowed to smoke a Cuban cigar if I damn well want to.
"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." (emphasis added)
Doesn't this settle the issue, at least as regards to the intent of the authors of the 14th Amendment?
https://x.com/AmyMek/status/1883761767618379788
We have the legislative history as guidance including the statements of the drafter of the Amendment and the chairman of the Senate Judiciary Committee at the time, both of whom clearly stated that the current leftie view was not their intention that it would apply to illegal aliens or anchor babies. For that matter, it wouldn't have passed if that were the intention.
- Krumhorn
It would seem that a citizen of Venezuela visiting the US legally or illegally still remains a citizen of Venezuela. Should that visitor happen to give birth in the US it still seems that child is a Venezuelan. I think "My name goes here" has nailed the issue in the final paragraph of his/her comment. Certainly we need to have a definitive answer one way or the other. The easiest, least painful way to implement a "what to do about the so -called dreamers", who seem to have the most at stake- and are the biggest stumbling block -is to declare an amnesty as of a given date then remove all those born here or brought here illegally after that date.
Of course it will be a miracle if the House and Senate develop the courage to actually settle this question through legislation.
#4 is just as a practical matter; no concession.
It's funny that even the quote from Sen. Howard (quoted by My Name above) is itself pretty ambiguous. "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." Are "foreigners, aliens" only those who belong to the families of ambassadors or ministers? (The pro-birthright folks seem to think so.) Or did he mean foreigners and/or aliens, and/or family members of ambassadors/ministers? I sure don't know. I think anyone who treats this as a no-brainer in either direction needs to pause . . . .
It does not take an army to invade. One person can invade a place, region or country. Any person who is not within the U.S. legally has in fact invaded in an unwanted or unexpected way.
What's the point of making an act illegal if you're going to reward those who break it?
Birthright citizenship, as well as chain migration, are two obvious policies that must be revisited. It’s fascinating that it took Trump to raise this dilemma. Did no other Presidents see this contradiction? When you have responsibility, you need clarity and consistency. Of course, if Biden hadn’t opened the borders, the issue would not be so hot to begin with. Trump is so smart to set this topic in motion at this time.
The point was- slave descendants didn't need to be naturalized. Democrats in the South were passing state laws denying the descendants of slaves citizenship. One of their arguments- their ancestors didn't come here voluntarily as immigrants, thus, they weren't citizens of the state... and state (or territory) citizenship was- and is- required for US citizenship. In the 14th amendment too. As is- someone who crosses into El Paso and drops a kid- is not resident in Texas nor anywhere else in the USA.
1. The invading army analogy is very weak No, it's not. Invader encompasses anyone who crosses a border unlawfully, period, end of discussion. Unless a law exists that says otherwise for certain classes. Like Cubans fleeing Cuba who set food on dry land in CONUS.
Like entering a private home. Anyone who enters a home unlawfully is and invader, even if they're a 13 year old just intent on stealing a few items... they can still (in most states) be killed on discovery as a presumed deadly threat. As they should be.
Some scholars believe that the key to "subject to the jurisdiction" lies in whether or not the U.S. has COMPLETE jurisdiction over the subject individual rather than just jurisdiction over them in certain, limited respects. Perhaps the clearest illustration is treason: If someone is born in the U.S. to, say, Japanese parents, and that person is never naturalized as a U.S. citizen, then that person can't be convicted of treason against the U.S. The treason statute (18 USC sec. 2381), begins: "Whoever, owing allegiance to the United States, levies war against them . . . ." People streaming across the southern border from Central and South America obviously don't owe any allegiance to the U.S. They may be subject to arrest and conviction for driving on the wrong side of the road and such, but they're not subject to the U.S.'s complete jurisdiction because they can't be charged with treason, they presumably can't be drafted into the army, etc. Whatever country they came FROM can charge them with treason or draft them, which just goes to show that they don't owe allegiance to the U.S.
Of course, the people we're talking about would gladly their (e.g.) Venezuelan heritage and claim allegiance to the U.S. But they don't OWE any allegiance to the U.S.
Think about this in the context of someone who happens to be born in the U.S. but has two wealthy Argentinian parents who only came here on some kind of special, 20-year tourist visa. It seems obvious that the government could never charge that person with treason -- espionage, yes; treason no -- and they couldn't be drafted into the U.S. Army. The person doesn't want to be regarded as an American. Obviously, we're obliged to respect that such a person is still an Argentine national. We can charge them with crimes while they're here; we can kick them out; but we can't just declare them an American against their will.
And if that's true for the Argentinian kid in this example, it must also be true for illegal immigrants: The test of citizenship can't just be whether or not they WANT to be treated as an American, or whether they are voluntarily OFFERING their loyalty (which none of these people are actually doing even). Again, the relevant test concerns whether, in addition to merely being born here, the person is subject to the complete jurisdiction of the U.S., and can make no claim of foreign nationality or citizenship that would exempt them from any U.S. laws.
From a policy perspective, we must also consider the multi-generational impacts. The French have much more significant restrictions on birthright citizenship than we do. One very bad result for them are these deep blocks of young adults who are not citizens, even though they were born in France and sometimes their parents were born in France, but they can never realistically become citizens. At the same time, because they've never lived anywhere else, it can be politically difficult to obtain the will to deport them to a company they (and their parents) have never lived in. It creates a great deal of unrest, and hinders their integration into the French culture.
Now, their parents or grandparents shouldn't have been allowed in France in large numbers, probably, to begin with, but that's in the past. The current reality must be dealt with.
So it's nice to say (again I'm talking policy, not interpretation of the "subject to the jurisdiction thereof" language) "no birthright citizenship unless your parents were citizens or lawful legal residents." And that policy can help discourage illegal immigration. But who really is going to feel comfortable deporting, 20 years from now, a 19 year old young woman to a third-world country she has never, in her life, ever set foot in?
Estimates put the number of illegal immigrants somewhere around 11 million right now. A Pew Research Center study suggested that there are about 4.4 million children currently in the country who were born here to illegal immigrant parents. If we can deport all of them, with the parents, right now, that's one thing. But suppose in 10 years we've failed to do so, and we then have 3 million 20 year olds, the majority of whom are law-abiding (their parents broke the law coming here, not them). Do we pass a law making them citizens at 18? Do we seriously try to deport millions of innocent 18 year olds to a country they've never been to before, and whose language they may not actually speak? And what happens when those kids have kids?
https://x.com/BillMelugin_/status/1883978090596163888
What is the upside of ending birthright citizenship? We create an expanding group of "Born Here Non Citizens". What rights and benefits, besides voting, do we deny them? Health care? Education? Enumerated rights? Chain migration? Wouldn't it be better just to end chain migration for everyone? Do we plan to deport them? Will their children be born citizens? It is far better to just reduce legals and illegal migration as much as possible and prevent the babies from being born here.
There are going to be problems working out and applying a policy, but they're minor compared to the problems created by not working out and applying a policy. This is something the country should have dealt with decades ago.
The men who drafted the 14th Amendment had just fought the bloodiest war in our history to protect the sovereignty of the United States and the supremacy of its national government. (Don't be fooled by woke simpletons, the issue in 1961 wasn't slavery; it was secession.) Consequently the idea that a constitutionally elected government would attempt to nullify the laws protecting and enforcing America's sovereign borders was utterly unthinkable.
All these analogies suck marbles. Illegal immigrants are not diplomats. They're not Indians off the reservation. And they are not soldiers subject to the Geneva conventions and the laws of war. For fuck's sake, Ho, you are really making up insane arguments in a transparent attempt to get yourself on the Supreme Court. I call bullshit on this lame attempt to amend the Constitution via judicial fiat.
Anybody born in the USA is a citizen by the grace of God. Spare me your attempts to decimate the U.S. Constitution. You sound like Bork when he was attacking the free speech clause. The only thing worse than right-wingers attacking the Constitution is leftists attacking the Constitution. Read the language and spare me your right-wing fantasies and rhetoric.
Are you sending illegal immigrants to war crimes tribunals? Or are you full of shit, Mr. Ho?
Once effective policies are put into place and the dust settles, the children brought here illegally will most likely be allowed to apply for citizenship. That won't happen and shouldn't happen before major reforms are adopted. Opportunities for self-deportation should also be encouraged.
One of the first things they taught me in law school was to consider the PURPOSE of a law in interpreting it.
The purpose of the First Section of the 14th Amendment was to overrule the Dred Scott decision, which held that NO BLACK PERSON FREE OR SLAVE was or could EVER be a "person" under US law. Think about that!
After four years of war and the deaths of untold thousands of soldiers and civilians, one condition of peace was that the States of the former Confederacy had to agree to the 14th Amendment that abolished slavery.
To me, that all involves a set of different issues than how the US treats illegal immigrants,
What did that mean to exclude?
President Biden just made a number of Americans not subject to the laws of the United States for quite a number of years.
“Most notably, foreign diplomats and enemy soldiers — as agents of a foreign sovereign — are not subject to U.S. law, notwithstanding their presence within U.S. territory.”
Does he realize he's arguing that illegal immigrants are not subject to U.S. laws?
"I broke the law, therefore I am outside the law, therefore you cannot punish me for violating the law."
This isn't legal reasoning. It's "pick me for the Supreme Court" bullshit.
So the NYT is still going with the "Scholars say" bit? Are parts of the audience still being fooled by that well-known magic trick?
We control immigration because we want to control how many outsiders we let into the USA. Babies who are born here are insiders -- Americans -- because our Constitution says they are. By the time these kids reach adulthood, they will speak English, and know our customs and our laws. We can and should trust them, as much as we trust any American citizens, because they are part of our people. And there is no blood guilt in American law. The sins of the baby's parents are irrelevant. Babies who are born here are Americans.
If someone is here illegally, have they not decided for themselves that they are not subject to US law?
The 14th Amendment was enacted for the benefit of the freed slaves, period.
So the 14th Amendment is null and void today, since all the freed slaves are dead?
Birthright citizenship didn't apply to Native Americans either. Why should apply to the children of economic migrants that are here illegally?
If a pregnant woman enters your house and has a baby there, does the woman and baby gain the right to stay?
That's when you smack them with the 3rd Amendment!
Here's the skinny from Ryan McBeth...
The Cost of Deporting 11 Million Illegal Immigrants?
You can have 82 new Destroyers or you can have 0 illegal immigrants, but you can't have both.
Either way this experiment in governance is over. Too bad for your children.
"I broke the law, therefore I am outside the law, therefore you cannot punish me for violating the law."
This isn't legal reasoning.
If you're seeing the argument as obviously ridiculous, perhaps you are misinterpreting the argument being made?
Aggie @ 12:47: "...A person that sneaks over the border unchallenged is here illegally, and hence has not been subject to jurisdiction. The simiarities to 'Invading army' overwhelm any other classification, whether they're hostile or friendly...." What you said. See also a good article at the Federal Society website. It's from about 2007 (I will try to dig up the cite) but it talked very plausibly about "subject to jurisdiction" = "swears allegiance to" -- which really focuses on "exactly what the claimant (of citizenship) has done to demonstrate and enact fealty to the sovereign." Citizenship is not endowed or imposed, it is chosen or declared. Something like that.
There are a lot of people talking about this as if the word "jurisdiction" was not a complicated word with different meanings in different contexts. Tell me you missed the first week of Civil Procedure without telling me you missed the first week of Civil Procedure.
Who will raise them if their parents are deported?
If you're seeing the argument as obviously ridiculous, perhaps you are misinterpreting the argument being made?
He's comparing them to diplomats who are immune to prosecution. Why would you make that analogy when you know -- beyond any shadow of a doubt -- that illegal immigrants are subject to our jurisdiction and our criminal laws?
Agree- it was about secession. Inextricably tied in with slavery since the (inevitable) ending of slavery was the reason each seceding state gave for seceding. If the hotheads in the Confederacy hadn't given Lincoln a casus belli by firing on the legal federal property of Fort Sumter- they'd could have have gotten away with it. Could have- but there were lots of hotheads down there, and I'm certain they'd have found another federal installation to attack. Or tried an armed takeover of one of the territories.
One of the many good arguments.
Link to the full 1952 act. https://www.govinfo.gov/content/pkg/STATUTE-66/pdf/STATUTE-66-Pg163.pdf
Here's something I don't see brought up much.
The 14th Amendment was passed in 1868.
Yet Native Americans did not gain citizenship until 1924.
If birthrate citizenship was created in 1868 why were Native Americans not citizens until specifically granted in 1924 ?
How many judges are releasing criminal defendants because we "don't have jurisdiction to hear this case?"
And how many judges say, "We can't try this killer because he's just like a diplomat from another land?"
We know it's a bullshit argument because an illegal immigrant is "outside our jurisdiction" when the question is whether a baby is a citizen, and an illegal immigrant is "part of our jurisdiction" when an adult is being prosecuted for murder.
I grant you that jurisdiction is a tough legal issue, but this is blatant hypocrisy.
And a lady who wanders into El Paso and drops her kid in the hospital is not a resident at all. States have residency requirements. Birth tourism stays do not (AFAIK) satisfy them. I was talking to my son- who travels to different places for a living. In NC, one he knows about, there's the typical tourist tax and other nuisance taxes on the room. If you pay for the room for 30 days in advance, not 29, but 30, those taxes go away- as the state considers that residency. Don't know if that applies elsewhere.
If the tap were turned off, I suspect most people would agree to an Amnesty for those such as your to be daughter in law. The problem with past amnesties was that the tap was not turned off, so the issue was never actually settled, the can was just kicked down the road.
One thing that I don't think I've ever seen from a proponent of the "we can give illegal aliens parking tickets so we have jurisdiction" argument is how to square that with extradition. If jurisdiction for criminal law is the same regardless of the citizen/non-citizen distinction and it's the same for the citizenship of your kid, why do all nations exercise the right to keep any of their citizens (not just diplomats) from being subjected to foreign criminal law if they feel it is being applied unjustly (and they can effectively intervene)? That would seem to indicate that the US has criminal jurisdiction over a non-citizen only to the degree their native country allows us to have it. (of course, given our global position we have a pretty wide latitude but it's not unlimited since we want to be able to exercise the same power)
That's a practical question. We could decide not to deport the relatives of a citizen. Or we could deport the parents, and let them decide whether to abandon their baby here, or take their baby back home.
What's Dr. Fauci's opinion of this?
He is recommending triple masking and social distancing of 7.3 feet.
I don't know. You'd have to ask him. All I'm saying is that if you're understanding him to be saying something that doesn't make any sense, it's possible there's a "failure to communicate" situation here.
I see that "Gordon Pasha" (at 1:15 above) supplies the cite and some good text as well. Thanks.
One thing that I don't think I've ever seen from a proponent of the "we can give illegal aliens parking tickets so we have jurisdiction" argument is how to square that with extradition. If jurisdiction for criminal law is the same regardless of the citizen/non-citizen distinction and it's the same for the citizenship of your kid, why do all nations exercise the right to keep any of their citizens (not just diplomats) from being subjected to foreign criminal law if they feel it is being applied unjustly (and they can effectively intervene)? That would seem to indicate that the US has criminal jurisdiction over a non-citizen only to the degree their native country allows us to have it.
Actually, extradition is used when criminal try to escape jurisdiction by running to another country. So a Canadian runs to the U.S. to avoid being prosecuted in Canada. And Canada requests that the U.S. send him back. That runaway guy is definition in the jurisdiction of the U.S. And Canada is saying, "He should be in our jurisdiction, so we can try him for crimes." And we may or may not send him back, depending on what the treaty says. Sometimes we ask for a runaway and we don't get him because the other country doesn't like our death penalty, for instance. He's not in our jurisdiction, he's in there's.
Roughly speaking, the jurisdiction of the USA is throughout our country, with some very small exceptions (like embassies or tribal lands). Of course we have jurisdiction to try illegal immigrants for crimes. It would be quite absurd for legal aliens to be subject to our criminal laws while illegals get a free plane ride back home. What the fuck, right-wingers.
If someone is here illegally, have they not decided for themselves that they are not subject to US law?
Babies do not decide where they are born.
It is not a "good argument" to suggest that American criminal laws do not apply to illegal immigrants. That's what we call a bad argument.
Just the other day I was googling who Trump might put on the Supreme Court, and I noticed that Ho was on the top of all the short lists.
So, my thought is that Ho wrote this article to give cover to Donald Trump, and to get himself nominated. He's sucking up to the boss man.
If Ho was actually nominated for the Supreme Court, and he was questioned as to whether illegal immigrants were subject to American jurisdiction, he would either refuse to answer the question, or back off from the implications of what he is saying.
The idea that illegal immigrants have diplomatic immunity is bottom-of-the-class stupid. I'm seeing a lot stronger arguments here, on the Althouse blog, than I'm getting from the guy sitting on the Court of Appeals.
Are those illegal aliens being protected in sanctuary cities being subjected to the jurisdiction of the US government?
Under the Biden administration, no. Under the Trump administration, yes.
It would be a real shock if an Attorney General told Trump that he didn't have jurisdiction to deport illegal immigrants. Of course we have jurisdiction over illegals!
And American Samoans are not citizens, even today, Let's not forget that in the birthright argument.
I think that the problem really is anchor babies and family separation. It’s the idea that if a couple come here, even with their full family, have a kid, who gets birthright citizenship you can’t deport the rest of the family because that would be cruel. The answer to this is to deport the rest of the family (assuming that they are all illegals) and I’ve the parents a horde what to do with their birthright citizen children. They old find someone, hopefully a family member, who is here legally, to take the kid. Or they could put them up for adoption. Or they could take the kid with them back home, and that kid could come back when emancipated or of age, with their citizenship. The one thing that you don’t do is allow the parents, other kids etc stay around here exude of the anchor baby. Which was, of course, what the FJB Administration did.
Everybody seems to forget Native Americans who did not get citizenship until 1924. Evidently they were not under the jurisdiction of the United States. How are illegal aliens like Native Americans and how are they different?
I posted this on last night's cafe, but it applies to this topic as well. I've amended it a bit for clarity and to correct tyos.
"As Mark Levin pointed out on Saturday, the Civil Rights Act of 1866 provides the predicate for what the "jurisdiction" language of the 14th Amendment meant, and means:
The Civil Rights Act of 1866 stated that "all persons born in the United States and *not subject to any foreign power* excluding Indians not taxed, are hereby declared to be citizens of the United States."
This language about being "not subject to any foreign power" provided a model for the 14th Amendment's "subject to the jurisdiction thereof" clause."
Congressional colloquies among the sponsors of the 14th Amendment stressed that point.
OBVIOUSLY and EVEN TODAY Mexico and other South/Central American countries regard parents and children born beyond their borders as still their citizens and under their jurisdiction!
So kids of illegal bortn here ARE still under another foreign jurisdiction. Ergo the 14th doesn't give them birthright citizenship.
As for the Wong Ark Kim case, Levin argues that it was wrongly decided, given that Ark's parents, while legal US residents when he was born here, were not citizens and thus still "under the jurisdiction" of China.
It may be, as Levin hints, an activist court wanted to undercut the Chinese Exclusion Acts, which forbade Chinese laborers from entering the US, and denied them the chance to become naturalized citizens. So they "distinguished" that law by saying the legal presence of Kim's parents made Kim a citizen at birth before the racist Acts were passed.
Yes, Congress engaged in a blatant racist act by discriminating against the Chinese while protecting former slaves and their descendants. And yes, the Supremes sided *with* the government in a three later cases involving Chinese immigration.
But... Wanna claim the Supremes are never wrong? Dred Scott? Plessey v. Ferguson? Korematsu v. United States?
Note further that, to this day, "naturalized US citizens "generally remain subject to their birth country's jurisdiction when they visit that country.
Some countries even claim ongoing jurisdiction over their *former* citizens for certain matters like military service obligations or tax requirements, though U.S. law may not recognize these claims".
The 14th Amendment was adopted as a result of the Dred Scott decision just prior to the Civil War in which the Supreme Court decided that black people were not and never could be Citizens of the US. After the Civil War the 14th was adopted to reverse that and make black people US Citizens. Unfortunately they used some rather funky language to do so. If they had foreseen that it would be twisted to mean that ANY child born on US soil thereafter was automatically a US Citizen, they would have been a bit more precise on exactly who this new Citizenship applied to. Of course, rampant immigration from south of the border was totally not a concern at the time, but geez....
Will the left scream at any attempt to clarify/ amend the 14th? If so, what’s their rational? Practically, I think it would impact future baby people, not those baby citizens previously born to illegal immigrants on US soil.
…rationale…
And yet Ho argued otherwise in 2006. Perhaps his tune change has something with a desire to serve on the Supreme Court. https://www.gibsondunn.com/wp-content/uploads/documents/publications/Ho-DefiningAmerican.pdf
The invasion argument is also undermined by the first section of Trump’s Protecting the American People from Invasion executive order:
“Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States. Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.“
There is your invasion: “invited,”, “permitted,” “allowed to settle.”
Also, in Trump’s Guaranteeing the States Protection Against Invasion executive order, he reserved the right to “issue a finding that the invasion at the southern border has ceased.” There goes the argument that all illegal crossings are invasions.
Birthright citizenship for babies of illegal aliens is much less important than all the others who use that citizenship to enter the country. The correct term for those kids is "Anchor Babies" who, through legislative allowances to other family members and perhaps just claimed family members, are the initial legal source for 10x, 20x more people to migrate here. Fixing that would eliminate >90% of the problems caused by birthright citizenship, adn the constitutional issue would be almost moot.
"...because our Constitution says they are."
Argument by assertion. Very nice. You lose. Thanks for playing.
"...American criminal laws do not apply to illegal immigrants."
The odd part of your assertions is that you seem to think there's an operative definition of "jurisdiction thereof" that is not actually the operative legal definition of "jurisdiction thereof".
This is getting you into all sorts of weird places, none weirder than to think you know more of Constitutional law than a federal judge and to assume everyone is wrong because illegal aliens can be prosecuted for crimes. That which you think is dispositive is not, in fact, dispositive.
That may be the stupidest hot take yet.
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