Notes From Babel

Posts Tagged ‘immigration

Letter about Hispanic Students in Glendale Spurs Controversy

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A shocking letter written by a Glendale, Arizona middle school teacher.

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Written by Tim Kowal

March 26, 2011 at 12:30 pm

Posted in Immigration

Tagged with , , ,

Birthright Citizenship, and What It Means to Be “Subject to the Jurisdiction” of the U.S.

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Last week, Shikha Dalmia at Reason ran this highly disingenuous and disappointing policy rant against the push by several states to enact stronger laws to curb illegal immigration.  In it, Dalmia falsely claims that “automatic or birthright citizenship” is “a right enshrined in the 14th Amendment,” erroneously explaining that

the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.

Frankly, I don’t know how to explain these claims other than an outright intent to mislead.  In fact, the question of whether birth on U.S. soil is enough, or whether only “children of foreign diplomats and American Indians” are excluded rather than anyone not “subject to the jurisdiction thereof” as the Fourteenth Amendment actually states, is a contentious issue that many constitutional experts are currently vigorously debating.

In my ongoing research into this area of law, I’ve come across some interesting cases shedding insight on the concern in British case law concerning persons born on British soil yet subject to the jurisdiction of a foreign sovereign.  Various European countries grappled with the problem of children born to citizens of foreign nations. In such instances, it is clear that children followed the citizenship of the father, but faith and credit to the jurisdiction of the country of birth was also given. Recognition of the proper jurisdiction to which a person was subject was important since the laws of one nation may purport to conscript putative citizens of a foreign nation into military service, potentially pitting those persons against his adopted country. See Prentiss Webster’s A Treatise on the Law of Citizenship in the United States: Treated Historically (Bender 1891), at 58-59. In this light, it is easy to see the concern against extending citizenship, the right to participate in the legislature, or of becoming the Commander-in-Chief of the United States military forces, to a person subject to the jurisdiction of a foreign power.  For example:

This rule was laid down at an early date in the state of Massachusetts as follows: “This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth, remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself.” Ainslie vs. Martin, 6 Mass. Rpts.

Id. at 78.  Similarly,

The Revised Statutes, section 1993, declare children born out of the limits of the United States, whose fathers were or may be at the time of their birth, citizens of the United States, to be citizens of the United States.

This statute is held to mean that the legislation of the United States should not be construed so as to interfere with the allegiance which such children so born owe to the country of their birth, while they continue within its territory. Under this, if the French government should see fit to hold Verdelet as a citizen of France for reason of birth within its territory, it might do so, and the government of the United States could not interfere with such a claim, if made by the French government upon him.

Id. at 119. This appears to give insight into the understanding of the “and subject to the jurisdiction thereof” clause: U.S. law was not meant to interfere with the jurisdiction other sovereigns might have over persons born or naturalized in the U.S.  In a government of consent such as the United States, consent may not be presumed to be given, and thus no citizenship may be conferred, where another sovereign lays claim to the person’s allegiance.

Specious Logic in the Arizona Immigration Ruling

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I was able to read the order before any of the editorializing about it, and I can confirm that the flawed analysis really does leap off the page.  Most of the ruling strikes me as sound.  To remove my predispositions concerning the issues as I read the opinion, I imagined the ruling was talking about trademark law—another body of law subject to the plenary authority of Congress.  In that regard, I tended to agree that creating new crimes for acts that the Constitution reserves to Congress to regulate is probably subject to preemption.

But what about the portion of SB 1070 that required Arizona’s law enforcement simply to verify immigration status?  Why should this be objectionable?  Again, as I was reading the opinion, I thought to myself, what if Arizona simply wanted to verify that companies registering to do business in the jurisdiction complied with applicable federal trademark laws.  It might be an extra burden on the state, but why should that be objectionable to anyone else?

Judge Bolton, however, did find it objectionable:

The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s Mot. at 30.) State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (expressing concern in preemption analysis for preliminary injunction purposes that burden on DOJ and DHS as a result of immigration status checks could “impede the functions of those federal agencies”).

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities.

(Emphasis added.)  In other words, Congress has required that the Department of Homeland Security (“DHS”) respond to reports from state officials concerning illegal aliens.  The Obama Administration argued that the Arizona law should be enjoined because it would increase the number of such reports, thus creating more work for the DHS.  The extra work would create irreparable harm to the United States, thus requiring injunction of Arizona’s law.  The judge bought it.

On the bright side, it is very possible the Ninth Circuit, depending on which judges sit on the panel, will reverse the ruling.  The Supreme Court, if and when the case makes it up that far, would very likely uphold SB 1070.  Until then, the Obama Administration will continue taking on water for waging this unpopular lawsuit.

[I also forgot to mention another odd argument the DOJ and some liberal bloggers have made that has gone largely unnoticed: that the “federal government” has plenary power over the subject of immigration.  This would be to misstate what the Constitution actually says.  It is true that Article I, section 8 of the Constitution provides that “The Congress shall have Power . . . To establish an uniform Rule of Naturalization.”  But notice this power is given to “The Congress”—not to some amorphous “federal government.”  In other words, Congress is given complete discretion to determine what immigration laws apply, but this grant of legislative authority does not mean that Congress, the President, or the courts can prevent the states from enforcing those laws.]

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Written by Tim Kowal

July 28, 2010 at 9:41 pm