Ediberto Roman on Birthright Citizenship

Ediberto Roman has posted a short essay for the Yale Journal of Regulation blog titled "Trump Is Wrong on Birthright Citizenship: A Son of Immigrants' Lesson on the Constitution. Ediberto, a sometimes blogger here, is always astute and insightful. He asked if I might respond to his essay, "even if you disagree with it," it "would be fun to read your take on the matter." Well, I do not at all disagree with it, so I thought I would just post the gist:

Thus, the Supreme Court’s repeated and consistent support for birthright citizenship should have put the question to rest. But politics are what they are, and consequently, Trump and his acolytes attempt to distort the terms of the Constitution to argue undocumented immigrants are not “subject to the jurisdiction” of the United States because the undocumented entered in violation of U.S. law. And according to them, U.S.-born children of the undocumented are somehow not citizens. Trump and his supporters resort to reinterpreting the meaning of the “subject to the jurisdiction thereof” language of the Fourteenth Amendment by attempting to ascertain the “original meaning of the term.” 

Ediberto makes two points about Supreme Court cases that are not generally referenced in opeds about Trump's order:

The latest citizenship decision, Plyler v. Doe, similarly prophetically addressed attempts like those being made by the Trump administration, stating:

Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term … Use of the phrase “within its jurisdiction” thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory.

And,

In fact, the Supreme Court in Afroyim prophetically rejected the very action Trump is trying to achieve with his executive order:

The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship.

 

Comments

[LawProf John Banzhaf]

The fight to end birthright citizenship may not ultimately prove successful, but it does not appear to be completely frivolous and doomed to failure for several reasons.

FIRST, that pesky and not completely clear - “All persons born . . . in the United States, AND SUBJECT TO THE JURISDICTION THEREOF, are citizens . . .” - clause arguably must have a meaning which cannot be completely ignored, and that cryptic meaning appears to be modifying or limiting the preceding “all persons born” portion of the amendment.

Indeed, it is a fundamental rule of legal construction, and especially construction of the Constitution, that every word and phrase must be given a meaning if at all possible. Fortunately, it appears possible to give the phrase a meaning relevant to acquiring citizenship by birth.

SECOND, from the analyses which I have read, it appears that the U.S. Supreme Court has yet to rule clearly and definitively that all children born in the U.S., even if their parents are illegal aliens, must be given all and full rights of citizenship.

Plyer dealt with the obligation of the government to provide schooling, not the full right of citizenship, and even then it could be overcome by a substantial (but not necessarily compelling) state interest

Afroyim was a U.S. citizen with all the legal rights of citizenship, and the ruling had to do with whether those rights could be taken away, not whether they adhered simply from being born in the U.S.

THIRD, the U.S. Supreme Court might just be willing to draw distinctions between different classes or categories of illegal aliens - i.e., those who, at this moment, are not legally in the county - with at least some not eligible to obtain birthright citizenship For example:

I. Those who entered legally but who have inadvertently overstayed their tourist visas or through a mere technicality did not continue to meet all the conditions of their student visa;

II. Those who entered the U.S. illegally but openly; by turning themselves over to authorities immediately upon entering, and fully complying with everything the law requires them to do subsequently;

III. Those who snuck across the border illegally and surreptitiously; not turning themselves over to authorities upon entering - but subsequently evidencing that they are subject to the jurisdiction of the U.S. by, for example, making no attempt to hide their true names, filing valid income tax returns, appearing for any legal proceedings as required, etc.

IV. Those who snuck across the border illegally and surreptitiously; not turning themselves over to authorities upon entering - but subsequently doing everything possible to avoid being subject to U.S. jurisdiction by, for example, using phony names and forged documents as necessary, never filing any income tax returns, not showing up for any legal proceeding as required, living “off the grid,” etc.

V. All of the elements of IV above PLUS they refuse - as members of groups such as the Sovereign Citizen Movement - to recognize, much less respect, that there are any valid governments which they might be subject to. Indeed, if they were challenged in a legal proceeding as not being subject to the jurisdiction of the U.S., they might even be estopped from opposing that claim.

In short, at least some classes of illegal immigrants might be found by this current Supreme Court to not be subject to the jurisdiction of the U.S., especially if both the President and the Congress made the same legal determination.

FOURTH, whether or not one agrees with some of the actions taken so far by the Trump administration, and/or by some of the recent decisions by the Supreme Court, it is clear that both are pushing boundaries and taking positions which may seem contrary to precedent. The same might well prove to be true with regard to birthright citizenship.

[Hubert Long, LSU]

"We can do better."

They could do worse, too, by either having quotas for the sake of having quotas, or including ideologues who spout identity politics bullshit instead of producing quality scholarship.

[Ediberto Roman]

John,

Without reading the legislative history, your subject to argument carries sone weight. However, reading the entire legislative history demonstrates the enacting Congress did not equate “subject to” with allegiance. I suggest all here to not take my word for it. To research the matter themselves. It will show the only time the word allegiance was used in connection with the subject to reference in the then proposal 14th Amendment was to emphasize that one was subject to our laws when one could be punished our laws. We cab always make revisionist arguments. They are just not accurate.

Second, if you read all the U.S. Supreme Court cases they actually do state anyone born in the U.S. are in fact U.S. citizens, with exception to children of diplomats and of the indigenous—which is exactly what the legislative history of the 14th established.

Third, the Supreme Court, may in fact draw parallels to those ineligible, but doing so would not comport with the enacting Congress’ intent. Further, they will be violating a principle of originalism the majority of the Court follows—they will be legislating.

Fourth, your “good for the goose …” argument should not apply to birthright citizenship. Neither the Supreme Court nor the enacting Congress has engaged in the inconsistency you suggest is appropriate.

If you don’t like birthright citizenship, the solution is constitutionally elsewhere. It is not for the Court to rewrite the 14th Amendment.

Good arguments, but sadly, the law is not with you. Happy to debate you one day on it.

[Ediberto Roman]

Hubert,

Your comment doesn’t deserve much of a response, especially since it seems to be a personal attack. Aside from making such statements to me in person without an audience, which I am certain you wouldn’t, let’s just compare resumes and see who spouts B.S. and who is the serious scholar.

[Hubert Long, LSU]

Ediberto,

The comment wasn't directed to you. It used quotation marks for a reason. It's quoting a more recent post on this site where the comments are, unsurprisingly, closed.

Mind you, you are also just an ideological hack. You were never properly trained to be a scholar and are unqualified for a university faculty position. Advocacy isn't scholarship. (The quotation marks point is too delicious to omit from noting again here, too, about your scholarly senses.) I would be more than happy to compare resumes in person. I'll then ask you to your face what you think your colleagues in other departments and faculties think about your being tenured faculty in a university, given what they had to do in order to get their jobs.

The person to whom the comment was actually directed isn't much better.

Thanks also for helping to turn this website into a tightly policed, low information propaganda effort. It's perfectly in keeping with your cohort's "scholarship."

Hugs and kisses,
Huey

[anon]

Ediberto
The SCOTUS held in the Slaughter-House cases (1872) that: “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Please consider one example. Mexico follows the principle of jus sanguinis, meaning citizenship is determined by the nationality of the parents, not the place of birth. Thus, a child born outside of Mexico to at least one Mexican parent is automatically granted Mexican citizenship.
Do you agree that, according to the Supreme Court, in a decision made very close in time to its enactment, such a child is not “subject to the jurisdiction” of the US, within the meaning of the 14th?