ControlsFreak
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User ID: 1422
ControlsFreak
28d ago
You can't even get the rock to admit that your position is internally consistent and coherent
It's kind of hard to admit that something is consistent and coherent when you can't even say what the terms mean. How would one check? "Blurfs are bleep." Is that consistent and coherent? How can one know, unless they know what those things are? At least when rocks use words, we know what they mean. (Heh, trivially true, since rocks don't use words.)
ControlsFreak
28d ago
you have a distressing tendency to vanish whenever I make an effort post calling out a bad argument you make
Is that better or worse than staying around long enough to declare the conversation over due to difficulties in your position and then insulting people to dismiss them when other difficulties are found in related positions?
I agree with your description of what Schooner actually did. What I am saying is that the framework that Schooner put in place is likely the correct framework within which to analyze the topic. Schooner does not directly answer our question, either, but my sense from all the follow-on cases is that if we're going to make conceptual sense of the matter, if we're going to construct a theory of the law, as Justice Barrett is always looking for, I'm not sure how we do that in any framework other than Schooner.
I don't think any courts have really analyzed the case of illegal aliens in detail, but I think if we look at a few other cases, we can at least get some ideas about what is plausible and how we might go about it.
The first one that I would mention, as @RoyGBivensAction says, is Indians. This is because we do have reasonably conclusive case law on it. Yes, Indians are Weird, yo, and I wouldn't appeal to any specifics there to actually tell us what the answer is for illegal aliens, but it reminds us of how we have to think of the framework. The jurisdiction of the sovereign is absolute, lest he consent to abridging it in some way. Whatever way that has weirdly been done for Indians, it is the case that they can, for example, be prosecuted for offenses, but also do not possess the "direct and immediate allegiance", not even one that is "local and temporary", that is necessary to be considered "subject to the jurisdiction thereof". Regardless of whether one mentally shoves "political jurisdiction" into that phrase, I really don't think one can just look at the case law and conclude anything other than that these two things are at least possible simultaneously.
Caveat paragraph: it is entirely possible that the Indians are Weird, yo caseline is just wrong. It is not impossible to think that the Court today could, for example, just state that Elk v. Wilkins was incorrectly decided, and that Indians either have to have birthright citizenship from 14A or be entirely immune from prosecution. This is possible! But absent that, I have to admit that these two things do not always follow in lockstep. So, we have to figure out how they fit into the framework. My sense is that one way to think about this is that the sovereign has consented to some amount of reduced jurisdiction, and this involves both some fuzzy amount of qualified allegiance (just to use the term that came up, but other descriptors may be fine) and that the sovereign has also consented to a limited amount of immunity in specific, qualified ways. I don't know that these necessarily work in lockstep, either; they may just be the outlines of what the sovereign has, in fact, consented to, factually.
Of course, as I said, because Indians are Weird, yo, that doesn't necessarily mean much about the specifics of the illegal alien case. Therefore, I would move to looking at the two closest other categories that we have. One of these categories has generated plenty of case law (some of which many folks, including Respondents, think is controlling), while for the other case that I think is close, we have just a short discussion from Schooner.
What we're looking for, in the language of Schooner, is people who are almost like lawful temporary visitors, but who don't have any license under which they enter, implied or otherwise. In fact, they have an express prohibition on entering. Obviously, one near miss is lawful temporary visitors. The other place to look for a near miss is any discussion of any hypotheticals where anyone else enters without a license. The only one I've seen anywhere in all of that case law is basically a relatively short passage in Schooner that talks about if an Army enters without the consent of the sovereign.1 It contrasts with the case of an Army entering with the consent of the sovereign. I'll quote that section in full again.
Without doubt, a military force can never gain immunities of any other description than those which war gives by entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a particular license, be expressed by a general declaration that foreign troops may pass through a specified tract of country, a distinction between such general permit and a particular license is not perceived. It would seem reasonable that every immunity which would be conferred by a special license would be in like manner conferred by such general permit.
We have seen that a license to pass through a territory implies immunities not expressed, and it is material to inquire why the license itself may not be presumed.
It is obvious that the passage of an army through a foreign territory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power is never understood to extend to a military force, and an army marching into the dominions of another sovereign may justly be considered as committing an act of hostility, and if not opposed by force, acquires no privilege by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of deciding that such military commander is without a license.
The passage is trying to consider the possibility that such entry may not in fact be hostile; it may not in fact be part of a declaration of war. And it's tricky. Remember my discussion of what I felt missing in Ex Parte Quirin. How do you deal with careful distinctions between official Armed Forces, which may or may not have hostile intent, nonofficial folks who are indeed belligerents, what counts as a "hostile occupation" or not? It's unsatisfying as of yet. But at the very least, we can see that Chief Justice Marshall wanted his framework to reason about unlicensed entry of Armed Forces, even perhaps without de facto hostile intent.
One might think that he concedes that hostile intent is inferred anyway, and that may be true. But then, I ask, in Chief Justice Marshall's framework, would one ascribe to them "temporary and local allegiance"? I think not. Nevertheless, they do not seem to gain any immunities. The sovereign has not consented to their entry, has not granted them any explicit/implicit license, has not consented to granting them "temporary and local allegiance", and has not consented to any limitation via immunities. As such, if one were to ask the question as to whether a birth occurred during such a hypothetical event to one of the members of this Army, would the child be a US citizen? I feel like I sort of have to believe that the answer is no, if I believe that this framework is the correct way to think about it.
Of course, yet again, this does not answer the actual question of illegal entry of non-Army regular folks. It's a near miss, but it's an exercise in working the framework.
The other near miss is temporary visitors, with the passage I have certainly quoted, and which WKA used for its entire analysis of this near miss case. My honest opinion, not trying to reach any result, just my impression of the words on the page, is that the implied license for their entry is critical for the "temporary and local allegiance" that is imputed to them. If, as it seems to me, that this implied license is a critical factor, then the absence of it leads to the inference that folks who lack any license whatsoever, express or implied, lack the "temporary and local allegiance" that lawful temporary visitors have. The sovereign has not consented to their entry, has not granted them any explicit/implicit license, has in fact expressly rejected giving a license, expressly prohibited their entry, has not consented to granting them any "temporary and local allegiance", and has also not consented to any limitation concerning prosecution via immunities.
Perhaps something is wrong there, but that is genuinely my best understanding of the framework. We can see that such a combination of conclusions is at least possible given some of the other cases, and it appears to be the most natural interpretation of the theory for the specific case.
1 - EDIT: I suppose it also gave the case of when another sovereign enters without consent. I think that's even further from a near miss, and I'm really not sure that it's all that helpful in either direction. That one is very weird.
I would also like to note that if we are inferring characteristics of our interlocutors from our own demonstrated efforts, I find it conveniently-timed that it is hard to say that I am unwilling to put in significant effort in good faith to understand vague terminology. I actually often thrive in environments where we don't have strict technical definitions, and we're trying to work through how to construct terminology that most closely matches our vague intuitions. I have one particular term at work that I've been saying I only have a "working definition" for for the past 4-5 years, because it still has plenty of vagueness around the edges and we're still learning stuff about it.
I am perfectly happy working with you on some amount of vagueness in your terms. But, as stipulated above, the natural inference is that you've given me nothing to work with. Not even an attempt.
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