The Significance of Parental Domicile Under the Citizenship Clause

Virginia Law Review ^ | APRIL 2015 | Justin Lollman

[nathanbedford]

It seems that every few minutes another article pops up debating the issue of birthright citizenship with most of the articles proclaiming its unconstitutionality and recommending a way in which it can be done away with. Most of the articles are long on conclusions and short on cogent legal reasoning and precedent. This article is long enough to suit even me, it addresses the pertinent questions in a scholarly manner, it is timely having been published in April, and its conclusions will surprise both sides of the argument.

[Hostage]

Good post to bring up the important distinction between the legal terms ‘residence’ and ‘domicile’. Distinguishing between these two legal terms is key to understanding the entire issue.

[DesertRhino]

And jog my memory, how did this topic even become the thing everyone is arguing about? I seem to not remember much argument about anchor babies until Mr Trump forced it into the discussion in a big way.

Go Trump.

[alloysteel]

The Chinese exception, for the children born of Chinese laborers here on a very limited work permit (not a visa), is not applicable when the parents of the children born here have neither a work permit or a visa to be within the borders of the United States or any of its territories. Therefore, the jurisdiction clause, which WOULD apply for the children of the Chinese laborers, cannot be similarly applied for invaders without documentation, who are not immigrating, so much as they are colonizing. And I am not aware that the US Code or the Constitution has any provisions for parts of what is US territory to be colonized by citizens or subjects of foreign governments.

Not unless they come with armed force to secure that claim, and defeat the US military, and surrender of the territory in dispute.

That has not happened for a long, long time in US history. If ever.

So if Mexico goes to war with the United States, and manages the military conquest of most of the American Southwest, forcing the US military, and the US government, to surrender, one of the terms of peace is the ceding of the disputed territory to the victorious government.

Does NOBODY understand “Game of War”?

[CaraMiaR]

If you Google Leo D’Onofrio, Esq. you can read some very well researched and scholarly writing about citizenship from 2007. He submitted an amicus brief to the Supreme Court re Obama’s citizenship.

[DesertRhino]

And good article sir. As always, you bring a touch of class to the argument.

[DesertRhino]

And good article sir. As always, you bring a touch of class to the argument.

[DesertRhino]

Solid analysis. I especially liked the “where in the constitution ,,,colonized by foreign settlers”.

That ONE sentence needs to go viral and make it into a debate. Its unassailable.

[Hostage]

The issue of ‘anchor babies’ has been argued between the right and left for decades now especially during the disastrous attempt by GW Bush in his 2006 Comprehensive Immigration Reform.

It’s not a new issue. It took a Donald Trump to bring it back to front and center in the media. He is setting the media’s daily agenda whether they like it or not.

[pgkdan]

As most of the developed world has recog-nized, it makes little sense to bestow citizenship on persons born to alien parents whose stay within the country is purely temporary; fortunately for us, the Citizenship Clause does not require that result.

This is the last statement of the conclusion. What they're basically saying is that for illegals who come over just to give birth, get a bc and then go back to Mexico...no citizenship should or need be granted. But any other category of immigrant...including illegals who managed to rent an apt or trailer or a tent in a vacant lot, would have established a domicile and their offspring would then be eligible for citizenship.

That's not nearly broad enough for me, but I would accept it as a first step.

[Robert DeLong]

That was informative. Thanks

[nathanbedford]

Though the Court recognized Congress’s “inherent and inalienable” “right to exclude or to expel all aliens,”244 it flatly rejected the idea that this, or any other, power could be used to “restrict the effect of birth,” or otherwise “abridge the rights conferred by the Constitution.”245 The Court reaffirmed this principle in Afroyim v. Rusk, noting that “Congress c[an]not do anything to abridge or affect . . . citizenship conferred by the Fourteenth Amendment.”246 Thus, even if Congress can restrict an alien entrant’s legal capacity to establish U.S. domicile for state law purposes (as was the issue in Elkins),247 it cannot do so for purposes of the Citizenship Clause. To allow otherwise would effectively give Congress authority to deny birthright citizenship to any person born of alien parents. Such a result not only conflicts with the Court’s opinion in Wong Kim Ark, it goes against the very purpose of having a constitutional rule of birthright citizenship in the first place, namely, to put the issue “beyond the legislative power.”

Page 498

It is important that the context for the above quotation be clear. The author concludes that "subject to the jurisdiction" is really a synonym for domicile. Hence, he concludes that birthright tourism can be excluded but he concludes that it will be difficult to exclude birthright citizenship to illegal aliens who live here and have babies. He confirms that citizenship by birth is defined by the Constitution and may not be restricted by Congress, although Congress is certainly free to liberalize the requirements of citizenship by naturalization.

[dennisw]

I will like to see the look on their farces when we end anchor babies for all those Mexican/Central American IQ-70 scam artists. The party will be over!! God willing that Donald Trump gets elected!

[nathanbedford]

The author of this Law Review article makes a compelling case that drive-by babies (tourism babies) can be denied birthright citizenship but he is skeptical that babies of illegal immigrants who are established here, that is, who have established a "domicile" can be denied citizenship even though their parents' stay is illegal.

[frog in a pot]

From a very quick skim of the 46 page article:
…one must be subject to the jurisdiction of the United States at birth in order to claim citizenship under the Amendment. The latter of these two requirements is known as the jurisdictional element of the Citizenship Clause, and it is this requirement which this Note argues excludes children born to nondomiciled, alien parents.

You seem to suggest by saying ...he concludes that it will be difficult to exclude birthright citizenship to illegal aliens who live here and have babies., that the reader will see the author later in the article ignores the legislators published definition of the clause and prefers to focus of the fact the illegal alien parents can, in essence, produce a local electric bill???

A careful reading of the entire argument is at the top of my list.

[C210N]

Not enough time during the day to study a 46-page in-depth article, but a browse thru, I found cause to search for the legal definition of domicile or parental domicile, which I did not find within.

I wonder if using it for the topic, though, is kind of grey.... if a domicile can be argued to be where one sleeps or “lives” or pays a utility bill, then even motel-born criminaliens could have legal citizen babies.

[nathanbedford]

Opponents of birthright citizenship argue that the clause "subject to the jurisdiction" means allegiance to the United States as opposed to some other country. This definition is advanced to avoid the conventional understanding that "subject to the jurisdiction" means obligated to obey our nation's laws. This the author accepts but he defines "allegiance" to be equated to "domicile" and makes a compelling case to that effect from the historical record and the cases.

Domicile can be affected by an illegal alien and is not effaced by the fact that the alien is "illegal." Hence, a child born to an illegal alien who has effectuated a domicile, perhaps evidenced as you say by an electric bill, cannot be denied citizenship for her child.

This is to be distinguished, says the author, from tourism babies or what I call drive-by babies because the element of domicile has not been accomplished therefore there is no allegiance and therefore the criterion of "subject to the jurisdiction" has not been satisfied and Congress (and the State Department) is therefore free to treat the baby as a noncitizen.

Further, nothing herein affects the rights of Congress to expel aliens, that is, the parents. But Congress may not legislate with a view to denying "domicile" in an attempt to amend the Constitution which prescribes jus soli rights of birth citizenship as a constitutional matter free of any interference by the Congress which, of course, remains free to regulate naturalization.

[dennisw]

I could care less what this lawyer’s case is. I want someone (lawyer) who can make the case that no offspring of illegal immigrants automatically become citizens. Then I want a President and a Congress who can carry it out.

No other nations allows this birthright scam so who would I want half a loaf that this author argues? You know what is fair and so do I. So get the laws changed to go along with our thinking. I don’t care what a President Trump does to stop birthright citizenship. Just so long as it gets done. THE CONSTITUTION IS NOT A SUICIDE PACT

[nathanbedford]

You have put your finger on the problem. Domicile is a matter of intent as well as residence, that is, the facts must show some indicia of an intention to live permanently. That means that every case is a factual case and that raises infinite problems of adjudication and bureaucracies. If we have tens of millions of illegal aliens in our midst and many of them are giving birth on a daily basis, how is this to be adjudicated? Who will pay for the process? Who has the burden of proof?

The other suggests practical ways that this administrative nightmare can be managed.

My problem is a statistical one, I suspect the drive-by tourism babies are the smallest part of the anchor baby problem with "domiciled" illegal aliens throughout the country. If this is so, we have no solution that brings practical relief except to remember that chain migration is not constitutionally mandated just because domicile creates another anchor baby.

[nathanbedford]

The reason we pay attention to court decisions is because they affect the way we govern ourselves. The reason we pay attention to Law Review articles is because they produce the most respected analyses of court decisions.

This lawyer, writing a Law Review article concerning a court decision concludes that neither the president nor the Congress can deprive babies of domiciled illegal aliens the right to citizenship but they may constitutionally do so for "tourism babies."

The article may be wrong, but at least we are dealing with the issue on the merits and not trumpeting bombast.