Posted on 08/18/2015 4:03:12 PM PDT by dennisw
Parts of Trump’s immigration plan may raise serious constitutional questions, but the part that launched a media firestorm—ending birthright citizenship for the children of illegal aliens—does not.
The Constitution’s Fourteenth Amendment does not confer citizenship on the children of foreigners, whether legal or illegal.
Media commentators have gotten this dead wrong. Judge Andrew Napolitano says the Fourteenth Amendment is “very clear” that its Citizenship Clause commands that any child born in America is automatically an American citizen.
That’s not the law. It has never been the law.
Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.
How is that possible? This is from the Immigration and Naturalization Act of 1952 (INA), as it has been amended over the years. Is this federal law unconstitutional?
No. The Citizenship Clause of the Fourteenth Amendment provides: “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.” Today’s debate turns on the six words, “and subject to the jurisdiction thereof.”
As captured in the movie Lincoln, the Thirteenth Amendment—which ended slavery—barely passed Congress because many Democrats supported slavery, and it was only through the political genius and resolve of Republican President Abraham Lincoln that the proposed amendment passed Congress 1865, sending it to the states for ratification.
In 1866, Congress passed a Civil Rights Act to guarantee black Americans their constitutional rights as citizens, claiming that the Constitution’s Thirteenth Amendment gave Congress the power to pass such laws. But many voted against the Civil Rights Act because they thought it exceeded Congress’s powers, and even many of its supporters doubted its legality.
(Excerpt) Read more at breitbart.com ...
The biggest problem this has is precedence. Do you go and tell people born here 40 years ago, go home?
The only thing we could likely do is pass a statute that says birth right citizenship ENDS at XX date, win the legal challenges and have it over for any new cases.
Do you go and tell people born here 40 years ago, go home?
Yes, I would. How is it ex post facto when no laws by congress have been passed?
It’s there in one of the penumbras somewhere, trust me....
No stretch at all. Where is any evidence that the 14th, when drafted and passed, intended to grant citizenship to children born to foreigners illegally in the US? Levin also discussed the writing or speeches of a couple of senators who drafted and supported the 14th.
Listen to Levin at his website once today's show is available.
All three. If properly motivated Traitor Roberts could find it so.
Congress wants none of its powers. Only the remuneration.
I don’t know what motivates Roberts — but sure isn’t love of country.
Simple answer: border jumping while 7mos pregnant or more is child endangerment. CPS will take your newly minted American and place them for adoption with an American couple.
If your newly minted American crumb cruncher is lucky, they might even get a heterosexual couple...
Good argument. Actual constitutional analysis going on here. That is rare these days.
The law itself:
Under current immigration law—found at 8 U.S.C. § 1401(a)—a baby born on American soil to a (1) foreign ambassador, (2) head of state, or (3) foreign military prisoner is not an American citizen.
The Citizenship Clause of the Fourteenth Amendment provides: “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 Civil Rights Act [1866] included a definition for national citizenship, to guarantee that former slaves would forever be free of the infamous Dred Scott decision which declared black people were not American citizens. That provision read, “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.”
That was the original meaning of the jurisdiction language in the Fourteenth Amendment. A person who is “subject to the jurisdiction” of the United States is a person who is “not subject to any foreign power”—that is, a person who was entirely native to the United States, not the citizen or subject of any foreign government.
Under Article I, Section 8, Clause 4 of the Constitution, Congress has absolute power to make laws for immigration and for granting citizenship to foreigners. Congress’s current INA is far more generous than the Constitution requires.
In case law:
In 1884, the Supreme Court in Elk v. Wilkins noted that the language of the Civil Rights Act was condensed and rephrased in the Fourteenth Amendment and that courts can therefore look to the Civil Rights Act to understand better the meaning of the Fourteenth Amendment. The Court reasoned that if a person is a foreign citizen, then their children are likewise not constitutionally under the jurisdiction of the United States, and therefore not entitled to citizenship. In fact, the Court specifically then added that this rule is why the children of foreign ambassadors are not American citizens.
That is why Congress can specify that the children of foreign diplomats and foreign soldiers are not Americans by birth. They’re not “subject to the jurisdiction” of the United States. Congress’s INA does not grant them citizenship; federal law never has.
Napolitano, who I like, has this wrong IMO.
The 14th Amendment confers citizenship on persons (i) born in the US AND (ii)subject to to the jurisdiction of the US. If a child of an illegal alien is born in the US, at the second of its birth, it is “in the US”, on US soil [clause (i)]. I having the baby drop on US soil is automatically sufficient to satisfy the “subject to” clause [clause (ii)], there would be no reason to have the “subject to” clause in the first place since 100% of all babies born in the US would automatically satisfy the “subject to” clause. The “subject to” clause would have no meaning—it would be useless.
The amendment should be interpreted in such a way that the language of clause (ii) is not useless. That means that there must exist a class of babies born on US soil who fail the “subject to” clause.
There is plenty of room to interpret which babies born in the US do not satisfy the “subject to” clause.
Liberals would argue that the only babies born on US soil who do not satisfy the “subject to” test are children of foreign diplomats, heads of state, as set forth in the immigration statute. If they are not subject to US jurisdiction it is because of a treaty or international law, which are laws inferior to the constitution. It would be odd indeed to interpret the constitution by reference to a law inferior to the constitution.
Odd, but not impossible.
If the inferior law in question was in force when the 14th amendment was enacted, perhaps that should be taken into account since that inferior law might be considered to be the common interpretation at the time the 14th amendment was enacted. I do not know what the immigration statutes said at the time of the 14th amendment.
If the inferior law was enacted under Congress’ power to interpret and implement the 14th amendment, Congress should be able to change that law if they determine that an earlier interpretation was incorrect or did not address a specific situation, such as children of illegal immigrants. This is especially true in the case of immigration, given Congress’ broad powers over that field.
Well, then Mark Levin has not thoroughly reviewed the birthright citizenship cases because most of them rely on The Exchange v. McFadden
Chief Justice Marshall wrote the following in The Exchange v. McFadden. Many citizenship cases have cited it or cases that rely on it, including Wong Kim Ark, Elk v. Wilkins, and Minor v. Happersett.
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.It will take a constitutional amendment to undo birthright citizenship.
My comments concerned what Levin said was the intent of the 14th at the time it was passed. He devoted a large part of his discussion to that, not what has been interpreted or misinterpreted since passage.
Chief Justice Marshall was CJ several decades before the 14th amendment. Someone in the US to do business and someone who comes here strictly to have an anchor baby are very different circumstances. And the Wong case involved a child born in the US to legal residents, not illegal aliens.
Others have posted statements by the senator who drafted the 14th that make the intent clear, which Levin also addressed.
Not buying your logic. I'll take Levin's logic and, if you haven't, you should listen to the podcast of today's first hour when it's available at his site.
Seems to me that if you say illegal aliens aren’t “subject to the jurisdiction” of the USA, then you’re saying that (like foreign ambassadors) they can’t be penalized under our criminal laws. Therefore, they can only be deported, not put in prison.
There was no such animal as illegal immigration when Wong was decided. There were quota systems in place for some countries, but, as a whole, immigration was generally unregulated.
Forgetting citizenship cases for a moment, note that there are other cases decided upon whether or not someone was subject to the jurisdiction of the United States. Any action taken outside of a constitutional amendment to end birthright citizenship will end up being disputed through the judicial system. The courts, including SCOTUS, will not overturn the meaning of "subject to the jurisdiction."
So, debating the intent of the 14th Amendment ultimately does us as much good as arguing the illegality of the Obamacare individual mandate. We need a constitutional amendment and, as the author of the Liberty Amendments, Mark Levin should know that.
I hope Trump will confer with Levin; he couldn’t ask for anyone better.
Several articles have been posted here by legal types who believe no CA is necessary, and that Congress has the authority to pass laws to regulate immigration and naturalization. And that includes Levin and Laura Ingraham and other attorneys well known to the public.
In the end, like most every issue, any court ruling would depend on the makeup of the court.
There is and can be no debate about whether or not Congress has the power under the Constitution to establish uniform rules of naturalization.
I have argued here repeatedly with so-called birthers that in order for Congress to establish who must naturalize they must first determine who is not required to naturalize. That means that Congress can extend citizenship at birth to those whose citizenship is not first guaranteed in the Constitution.
Mark Levin and others will have to convince me that Congress has the power to redefine “subject to the jurisdiction.”
"Subject to the jurisdiction" had a specific meaning to those who wrote and passed the 14th Amendment.
Thanks for the posting!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.