ControlsFreak
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User ID: 1422
Birthright Citizenship in US Territories
I was going to stop commenting on this topic, honest.
In my gigantic post, I said that I read almost all of almost all of the briefs, meaning the many amicus briefs. I totally skimmed through some of them (and outright skipped big parts of some that were completely whacko). One that I mostly skimmed, thinking, "This could be interesting, and maybe I should come back to it, but I'm not sure how much I'm going to care," was this brief by 'current and former elected officials and judges from U.S. territories'. Like, I get it. The territories are weird, too. But at the time, it felt like just a sideshow. Do I really have to learn anything about the territories in order to have a pretty good sense of what's going on for temporary visitors/unlawful entrants?
Well, SCOTUSBlog pulled me back in. The first author on that brief, Neil Weare, published this article there, as a made-for-a-popular-audience version of the brief. It was a good reminder to go check out that brief again, and I'm glad it came up after I had already completed the journey I had completed. Before that, I was probably unlikely to have been perceptive enough to catch any items that were really pertinent in influencing my bigger picture views. Now, however, since I had a good background and framework, I could pretty quickly grab on to a few snippets that seemed potentially interesting; they honestly might have gone unnoticed before.
So, what's going on with the territories? Honestly, even at first read, I didn't quite grasp the key details, but after a little digging, I can pull out the main pieces.
Unbeknownst to most, following the 1898 Spanish-American War President William McKinley redefined the phrase “in the United States” in the citizenship clause to deny citizenship to people born in Puerto Rico, Guam, and other territories that became subject to the sovereignty and jurisdiction of the United States following the war.
I sort of glossed over this on a first read, but that is the key. What does it mean to be "in the United States"? They go through some history, and then give what the McKinley administration's 'solution' was:
Redefine the long-settled meaning of the phrase “in the United States” to exclude these new island territories so birthright citizenship would no longer be an obstacle to overseas expansion.
But, uh, how did this work?
Specifically, the department took the novel position that “the United States is not bound and privileged by our Constitution” when acting in those territories, even while claiming exclusive “sovereignty” and “jurisdiction” over them. Accordingly, the department concluded that people born there did not “fulfill the requirements of the fourteenth amendment to the Constitution, for while they are subject to the jurisdiction of the United States they are not ‘persons born or naturalized in the United States.’” Under this twisted logic, those born in the new territories would “owe[] allegiance to our Government” but would not be “a member of the civil state, entitled to all its privileges.”
I mean, I don't quite understand it. It sounds weird. Of course, this is a telling from someone who is opposed to the reasoning, so maybe that's to be expected. In any event, we have our first moment where it seems to be important whether individuals "owe allegiance" to the US. Mr. Weare seems to think that allegiance is important.
Unsurprisingly, he sort of calls the gov't at that time racist in their motivations, but moves on to the Supreme Court's response. Thus we get to the "Insular Cases", which is quite the series of cases on a variety of topics concerning US territories. I'd known of them before, but never really spent much time with them. It was sort of an analog to "Indians are Weird, yo" in that "Territories are Weird, yo", and I didn't want to go through the nightmare of trying to make coherent sense out of everything.
Moreover, it seems like plenty of people today think that at least a significant amount of the Insular Cases are wrong, and footnote 3 in Mr. Weare's brief in today's case mentions statements by Justices Gorsuch and Sotomayor calling for them to be overruled. That adds to the mess of actually trying to understand them in a conceptual framework that is coherent with modern doctrine, so I've mostly just not spent much time with them.
In any event, the SCOTUSBlog article specifically references Gonzales v. Williams from the Insular Cases as being the moment the Supreme Court (almost) addressed the issue. Isabel González was born in Puerto Rico and wanted to enter the continental US, arguing that she was a US citizen.
Rather than decide whether the citizenship clause applied in the new territories, it [the Supreme Court] simply avoided the question, concluding that although Puerto Ricans owe “permanent allegiance . . . to the United States,” the justices were “not required to discuss . . . the contention . . . that a citizen of Porto Rico [sic] . . . is necessarily a citizen of the United States.” They demurred that the question at issue was “the narrow one whether Gonzales was an alien within the meaning of” the relevant statute, ruling only that “Porto Ricans [sic]” were not “aliens.”
The Court did, indeed, acknowledge that folks born in Puerto Rico owed allegiance to the US, indeed, that this allegiance was permanent. Mr. Weare does seem to care about allegiance.
He talks about a treaty with Denmark when the US acquired the US Virgin Islands. Treaties are sort of separate thing, and I'll kind of skip it.
Congress eventually made folks born in most territories to be US citizens by statute, though it seems that American Samoa is not exactly covered by it.
Where the article really caught my attention though was this:
In 2022, President Joe Biden’s solicitor general, Elizabeth Prelogar, argued to the Supreme Court that “[b]irth in a territory does not automatically confer citizenship under the Citizenship Clause,” because people in U.S. territories are not part of the constitutional “We the People of the United States,” echoing troubling language from Justice Roger Taney’s decision in Dred Scott. Similarly, President Barack Obama’s solicitor general, Donald Verrilli, argued in 2016 that “the Citizenship Clause does not apply to unincorporated territories of the United States,” because the Insular Cases “set out a ‘general rule’ that in an ‘unincorporated territory,’ the Constitution does not necessarily apply in full.”
Whoa. Interesting. Generally speaking, these are people who one would think would be typically desiring a more expansive understanding of birthright citizenship, so it caught my attention. The briefs are certainly worth a read. What does an argument look like, ostensibly from the 'left' for whatever that's worth, for claiming that people born in territories aren't US citizens by 14A?
Both briefs were concerning petitions for cert. That is, in both cases, the respective Circuit Court had ruled that a particular individual, born in American Samoa, was not a 14A US citizen. They had appealed to the Supreme Court, and the federal government was asking the Supreme Court to deny cert, meaning that they would not hear the case and the Circuit Court rulings would stand (the Court did, indeed, deny cert in both cases, so they did not write on the question). As a reminder, the text of the Citizenship Clause of the Fourteen Amendment says:
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 primary focus of today's case is "subject to the jurisdiction thereof", but it seems like everyone pretty much agrees that people in the territories are "subject to the jurisdiction thereof", whether you think that's because of something to do with Congress' plenary powers, ability to prosecute offenses/lack of certain immunities, or the allegiance they owe to the US. The 2022 brief doesn't outright state it, but the 2016 brief does say that persons born in the territories are "subject to the jurisdiction thereof", contrasting with Indians who are not subject to the jurisdiction of the US "in the relevant sense". They don't go into detail as to what "the relevant sense" is for how to determine that they are subject to the jurisdiction thereof, but they believe it to be so.
Instead, they say that they are not born "'in the United States' within the meaning of the Clause", as phrased in the 2016 brief, which seems to comport with the general structure of the 2022 argument. This has clear connections to questions I had in Footnote 7 of my original gigantic post and in a follow-up where I was exposed to a recent Fourth Circuit decision which thought that a military prison in Iraq was "in the United States".
The briefs try to give some historical hook, saying that the "People" who participated in "We the People of the United States", as preamble to the Constitution, were only those in the States, and that the Northwest Territory didn't participate. They reach to Article II for their first textual hook. It says that Congress "may determine the Time of chusing the [presidential] Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States [emphasis in 2022 brief]", with the idea being that people in the territories don't participate in presidential elections. Probably a slightly better textual hook is the Territory Clause, referring to "Territory or other Property belonging to the United States", reasoning that territories are "belonging to, but not a part of" the US.
Perhaps the best textual hook is comparing 14A with 13A and 18A. The Citizenship Clause of 14A says "in the United States, and subject to the jurisdiction thereof [emphasis in 2016 brief]", whereas 13A prohibits slavery "within the United States, or any place subject to their jurisdiction [emphasis in 2016 brief; 2022 brief emphasizes the rest of the quote starting at 'or']". 18A, when it was in effect, prohibited intoxicating liquors in "the United States and all territory subject to the jurisdiction thereof [emphasis in 2022 brief]". [EDIT: I didn't state this the first time, but the idea being that "in the United States" and "subject to the jurisdiction thereof" are independent criteria that are not identical.]
They make some hay over statutes that read similarly. Of course, they have some history and prior cases (including the Insular Cases), but I'm not going to dig deep into that. If I wanted to actually figure out what the right answer was to these questions, I'd probably need to spend a lot more time on it (at the very least read the briefs in opposition). I'm probably not going to do that anytime soon. Getting this far suffices for me to have a sense that it's not trivially obvious that this type of distinction is total bollocks. It might still be wrong! The Insular Cases might be completely wrong, and this whole line of reasoning could be wrong, and territories and military prisons in Iraq and whatever should be properly understood as being "in the United States", but I'm not going to rabbit hole on that one. Maybe the Court will say something on the topic in today's case, and at least I'll have a basic sense for the issues that are at play.
It is still somewhat of a sideshow to today's main question of whether temporary visitors/unlawful entrants are "subject to the jurisdiction thereof". I'd have to dig deeper to, again, think more about what we can learn from thinking about territories to better understand "the relevant sense" of that key phrase, and to what extent it relates to Congress's powers, allegiance, and/or immunities. It's probably unlikely that the Court will reach out and use this case to overturn the Insular Cases and say that folks in territories (or, I guess, military prisons in Iraq) have 14A birthright citizenship, but I'm sure plenty of folks will be reading the opinion(s) with an eye on to what extent what they say pertains to the topic and whether they're likely to be willing to opine on it directly if someone got them a suitable case in the next few years.
ControlsFreak
1d ago
Keep in mind that most conflicts go on for years so knowing how it’s going in two weeks is impossible.
I don't think this is quite true, at least if we're talking about active, open conflicts and thinking in the domain of interstate conflicts. Civil wars tend to drag out much longer. Some example data here. In Table 1, all four types of termination criteria for interstate conflicts had a median duration of a year or less. I'd seen graphs somewhere in the past, but can't easily find them. All of the means are definitely higher than the medians, and I recall the distributions being pretty skewed.
Of course, if you're thinking in terms of geopolitical 'conflict' that is not active hostilities, that's much harder to measure.
ControlsFreak
2d ago
Maybe so. I'm not entirely sure. As I was writing this, I just had in the back of my mind that I recalled discussions of "residence"/"domicile", and residence was weaker than domicile, which I remembered also being somewhat weak. It's not helped by the fact that many sources, unless they're really being careful and directly considering the matter, don't bother to specify whether they're talking lawful/unlawful or whether that would change anything.
Looking back at my original massive post, I see this quote from that same commentary:
The term “municipal status” acquired under the immigration laws is in no way to be confused with the acquisition of domicile. An alien, who, whether entering in violation of the Immigration acts, or, after being duly passed by the immigration authorities in the manner provided by law, takes up his residence here with intent to remain has done all that is necessary for the acquisition of a domicile. The only difference is that if the entry is lawful the municipal status is fully established, subject only to termination by the commission of acts subsequent to entry which the law provides shall justify the forfeiture of the domicile lawfully acquired; whereas, if the entry is unlawful the municipal status is not complete except on the expiration of the three year period within which aliens entering in violation of law are subject to deportation on the ground of unlawful entry.
That seems to me, on first glance, to imply that one can "get residence" and even "get domicile" without anything about it being acknowledged as lawful.
Thanks! I can understand getting busy with the Pittsburgh saga; certainly, I now know the time/effort investment required for such a significant post. I greatly appreciate them, even though I haven't had much to say on them.
I'm also grateful for your clarification that you were not accusing me of bad faith.
First, I think we can both agree that the purpose of a constitutional provision, as opposed to a law, regulation, enforcement policy, etc., is to take certain issues outside the realm of politics. In other words, we recognize that certain things should be beyond the temporary whims of the legislature, executive, or government agency, and only be changeable if there is broad consensus to do so.
In some sense, yes, but it is easy to think that this concept is more capacious than it is. For example, some constitutional provisions grant authority to political actors. So, the same provision both takes the question of whether that political actor has such authority outside of various temporary whims (and this question can only be changeable if there is broad consensus to do so), but then within the scope of authority that has been granted, it is entirely plausible that there is plenty of room for a variety of temporary whims to lurch policy one way or another. Other Constitutional provisions may not directly grant authority, but may place bounds within which there is still room for choices to be made. Just speaking purely generally at this point, as you seem to be.
That being said, let's look at the context of the 14th Amendment. There is broad consensus that the immediate purpose of the amendment was to guarantee citizenship to former slaves. The language itself, however, doesn't limit the scope of the clause to former slave, and this wasn't some oversight, since other parts of the amendment explicitly mention slavery, and the near-contemporaneous 13th and 15th Amendments also explicitly refer to slavery, so we can assume that the clause takes on a general scope. The framers would have understood that general scope to be in reference to the common law. I know you dismissed the common law, but it's important here....
...
The reason Schooner Exchange is important here is because it is basically a restatement of 19th century American understanding of the common law insofar as it pertains to jurisdiction. In other words, this is the context through which the framers of the 14th Amendment would have understood it.
Sure. Nothing objectionable about the basic context and the scope being broader than just slaves. Like I said, British Common Law may be important, and like I said, I was going to let American legal authorities tell us what they thought it meant when they were using it. So yes, Schooner Exchange, and the various US cases that cited it in context of the Citizenship Clause, told us some parts of the old Common Law to pay attention to and what it meant. It's entirely possible that the Roberts Court could, this year, add, "...and oh by the way, we haven't really addressed how the old common law would treat this situation, but there is nothing to do here but to look at the common law for an answer." That could happen! They might not cite any US cases, especially not post-14A.
Notable, the Schooner Exchange opinion does not mention slavery....
I mean, sure? The reasoning you give is plausible. I also sort of think it wouldn't have made sense to bring it up at any point in the opinion.
What the 14th Amendment did was abolish statutory definitions of citizenship and reinstate the common law definition.
This is a claim. Presumably, the Court's subsequent opinions on the topic told us this? And they told us where the bounds of the common law definition were? That's why I went through all of them. I tried to observe what they said. And sure, they sometimes appealed to a reference in the common law. They also just told us with words what they were doing.
That said, it certainly didn't abolish all statutory definitions of citizenship. We still have plenty of them! But 14A at least instated some grant of citizenship that was not removable by statute, sure.
"Illegal aliens" was not one of those exceptions.
This is certainly another claim. Where does the Court say that? The Court seems to tell us, over and over again, that principles of sovereignty, allegiance, license, and jurisdiction... perhaps coming from common law... are the principles by which one determines the bounds and exceptions. As you say later, Indians weren't discussed in the old common law, either. The Court didn't say, "Whelp, they weren't called out in the old common law, soooo." Instead, they looked into the principles of sovereignty, allegiance, and jurisdiction, perhaps being informed by common law.
I use scare quotes because the concept did not exist in 1868.
Right. This strict historical part of the above claim certainly seems right. So, we probably have to consider the principles of sovereignty, allegiance, license, and jurisdiction. Perhaps the common law will have clearly applicable principles, and perhaps the US Courts have elucidated them.
Illegal aliens are a creature of statute, and we can't modify the constitution simply by passing legislation to limit its scope.
Here's where we get to my caveat at the top of the comment. I think this is interpreting the principle of "taking outside of politics" too capaciously. I just responded to another comment in this thread by going through a 1912 commentary on the matter, a section that I had apparently missed, but actually would have liked to have read. They sure seem to think that allegiance has something to do with it. They sure seem to think that the "sovereign's will" has something to do with it. Perhaps the Constitution does make it so that the sovereign's will cannot accomplish some things. Perhaps it allows the sovereign's will to accomplish some things within some bounds. The sovereign certainly does seem to be able to make some choices concerning things like jurisdiction. When? How? Schooner gives some examples, like choosing to withdraw some jurisdiction (Elk seems to comport with this) or to choose whether to give consent/license to various folks to enter.
Presumably, to take an example we saw in Schooner, the sovereign can choose whether or not to consent to an Army entering US territory. The sovereign can choose whether to issue a license for such. If we follow Schooner's reasoning, it sure seems that this is one of those sort of situations where the sovereign's choices can affect something having to do with jurisdiction/immunities. But is that actually not the case? Is the sovereign actually so prohibited by 14A from making any choices that could in any way impact any sort of 'jurisdiction', at least not without getting a Constitutional amendment? Do we need a Constitutional amendment each and every time to determine whether a particular Army has a license to be on US territory, and thus, how jurisdiction/immunities work?
Where, exactly, the lines are for what the sovereign can/cannot affect when it comes to the Citizenship Clause remain unclear to me. Moreover, as I mentioned in my first post, it's also not clear to me what counts as the "sovereign's will" for things like this. Does Congress need to act every time to give consent/license? Can the President do it? I don't know! Maybe it's different for different things.
Taking your proposed framework at face value would mean that we could have denied citizenship to freed slaves by reading antebellum slave statutes and Supreme Court rulings as evidence that they were not subject to the jurisdiction of the US at the time of their birth.
I sort of don't think we could have? At least if Justice Swayne is to be believed in US v. Rhodes. The Thirteenth Amendment and Civil Rights Act of 1866 certainly prevented that possibility of even needing to ask the question. But you're hitting on quite a question that was live in Elk, as I observed. Does it matter if a person was born before the Civil Rights Act/14A, and how does that affect their situation? As I quoted the dissent:
according to the doctrines of the Court in this case -- if we do not wholly misapprehend the effect of its decision -- the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been at the time it was adopted, a permanent resident of one of the states, subject to taxation and in fact paying property and personal taxes, to the full extent required of the white race in the same state.
That is, does 14A have some sort of retroactive effect back to people who were born before it, but then subject to the jurisdiction at the time of passing? I don't think the Court has really ever said, other than what one thinks one can surmise by a small portion of this dissent. It probably mostly didn't come up otherwise, as even if there were any possible questions about 14A, the vast vast majority of cases were clear under the Civil Rights Act, and the window of time when we had people born before it who could have provided cases was likely fleeting.
In any event, I'm really not sure why my position requires coming down on either side of the retroactivity question, and it really just doesn't seem all that relevant. Maybe this is just getting at a theoretical, "What if one, in a vacuum, just asked whether a slave, at the time of birth, in say, 1860, was "subject to the jurisdiction thereof?" I mean, I sort of don't know? Justice Taney in Dred Scott said that they owed allegiance to the US. Would that do it? My guess is probably.
First, Schooner Exchange says nothing about Indians, because Indians don't exist at common law
...or... again, possibly because there just didn't seem to be any reason for them to come up? TBH, I'm not really sure what I'm supposed to take away from your sections on Indians. Yeah, it wasn't all that controversial. As you started off pointing out, the language of 14A takes a pretty general scope. But people didn't think this general scope included Indians. Why not? The Court explains the matter in terms of sovereignty, allegiance, and jurisdiction. Maybe the Court was wrong? I'm not sure if something in what you've said is supposed to change what I said I thought was the 'best fit':
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.
Back to you:
I doubt anyone arguing that illegal aliens or their children are not subject to US jurisdiction would be arguing that they are entitled to some special judicial treatment as a result. As long as illegal aliens have existed we have not treated them any differently wrt the court system than anyone else (subject to the well-recognized exceptions), and I don't hear anyone arguing that we should.
I mean, at this point, I hate to say it, but I have to ask whether you read my expounding comment prior to writing this one. I don't really know how they should be treated, but at face value, it doesn't seem like the sovereign has consented to their entry, has not granted them any license, any "temporary or local allegiance", and has not consented to any limitation concerning immunities to prosecution.
As I just said in the other comment in this thread, maybe the boundary is residence, like that 1912 commentary drew it? Maybe there's some room for the sovereign's will to make some choices, but with some bound that comes from somewhere? Maybe it's less? Maybe it's mere presence, with or without a license, and that's the bound enshrined in the Constitution? Like, this is still stupid unclear. But I don't think you've said anything here that makes me think that Schooner doesn't provide the proper framework and background, or that we don't have to engage with principles of sovereignty/allegiance/license/jurisdiction/immunities. I don't think you've successfully convinced me that literally all of those factors, in every detail, were utterly fixed by 14A, and that there's nothing that the sovereign can do that affects any of them in any way. That would seem to defy the reality that the sovereign has made choices concerning its own jurisdiction and such, pretty regularly, in fact. Maybe none of those choices have much room within the bounds of 14A, but I still sort of don't see why. I don't see how the theory comes together within the framework of Schooner, and I don't see why Schooner is the wrong framework.
If someone asks, "Are there exceptions?" the answer is, "Yes." If it's followed up with, "Where do we learn about how those exceptions work?" the very next second, the answer seems to be, "Let's go back, start with the principles of Schooner, and go from there." That's what the Amar bros did, that's what WKA and basically every Court has done when they've said something coherent on the topic, because almost none of it makes any sense unless we start from, "Well, here are the principles of sovereignty, allegiance, license, jurisdiction, and immunities." Many of the Citizenship Clause cases make no sense without it.
ControlsFreak
3d ago
I wrote the below before you deleted/re-wrote this comment. I'm not going to change my reply. I don't think much needs to change.
I notice in your "chonker" post you skip quoting section (a) of the holding:
The boring but true reason behind this is because I pretty much never did block quotes of the syllabus. At least, I don't think I ever did. I pretty much just pulled quotes from opinions.
Like, where in Plyler did the majority opinion leave open the question of whether immigrants who entered the United States unlawfully are within its jurisdiction?
Sure, as I mentioned, they certainly held that illegal immigrants are within the "no person"/"any person" language of 5A, within the "any person" language of Due Process, and are within "any person within the jurisdiction" of EPC.
I then quoted the section of the opinion where they said there didn't seem to be any difference between the "any person" language of Due Process and the "any person within the jurisdiction" language of EPC. Requoting here, so you don't have to scroll on the big post:
There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment.
I didn't actually blockquote the paragraph around Footnote 10, so I'll do that now:
Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [Footnote 10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority.
It actually came before the first quote. I certainly wasn't trying to hide this; I clearly couldn't block quote everything; my post was already hideously long. I don't know that there's all that much that is substantively different between these two block quotes. I even further quoted what I believed to be the opinion's best encapsulation of its notion of jurisdiction:
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. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.
I went on to block quote the entirety of Footnote 10, rather than just a snippet of it, so that everyone could read the whole thing. It's probably pretty important for what Plyler says about the Citizenship Clause, because to the best of my understanding, it's the only part of the opinion that addresses it directly. That included the entirety of the sentence that you pulled from, rather than just a part of it:
As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. [citation removed]
Admittedly, upon looking again, I did miss something! I removed the citation on this sentence. Interestingly, it was the same curious 1912 commentary that I noticed from the sentence that the Respondents quoted. I didn't realize that it was the same thing quoted here. And in fact, I don't think I ever read this part of that commentary (pages 425-427). This is quite the oversight! I'll start from page 421, because some context is needed to understand where they're putting the distinction:
(b.) Children of Aliens Born
a. While in Detention Prior to Admission.
That a child born in detention pending the deportation of the alien mother is born in the United States cannot be denied. That both mother and child are subject to the jurisdiction of immigration officers and to criminal and civil process; that they can claim police protection, the protection of the constitutional guarantee that they shall not be deprived of life, liberty, or property without due process of law, and are, hence, in a limited sense subject to the jurisdiction of the United States, is equally incontrovertible. The question can, perhaps, be advantageously examined by considering the cases of the mother and child separately.
The mother, an alien, seeks admission into the United States, and, because of disabilities which exclude her from admission under the immigration laws is refused entry and held for deportation. The situation presented is an offer of allegiance by an alien and its rejection by the United States Government, the sovereign to whom the offer is made. The fact that pending the execution of the order of deportation the woman is, from motives purely of humanity, afforded hospital treatment under the temporary protection of the United States in no way constitutes an indication that the allegiance offered is or will be accepted, and is not to be construed as a mark of that protection offered by a sovereign state to those resident, even temporarily, within its dominions. That the woman is not under these conditions even a resident of this country, is clear. In this case no question of citizenship arises; the only issue involved is her right to enter the United States, and this, because she is an alien, is determined exclusively by the provisions of the immigration law.
A very different question is presented by the case of the child. Never having existed beyond the territorial limits of the United States, before coming within what, for the present, we may designate as the limited jurisdiction of the United States, no question of its alienage, in the sense of allegiance to any foreign power, can arise. Consequently it can scarcely be said that with reference to the child the offer of allegiance and subsequent refusal on the part of the Government which occurred in the mother’s case has taken place, or that its situation in detention is “as if it had never been removed from the vessel.” If the child is to be considered an alien, then, to be sure, the mere fact of its presence on shore can vest it with no right to enter which it would not have had, if its birth had taken place on the vessel. On the other hand, the fact that the mother is debarred as an alien from entering this country could not, it would seem, be a bar to the acquisition of citizenship by the child provided that the latter could be under such circumstances deemed to be born subject to the jurisdiction of the United States as the words are used in the Constitution. If the child is subject to deportation it can only be on the ground that it is an alien; and to be found to be an alien it must be found not to have been born in and subject to the jurisdiction of the United States; and if found to have been born not subject to the jurisdiction of the United States this conclusion must be based on some theory other than that the child was at any time physically subject to the jurisdiction of some other power.
At first glance a comparatively simple solution of the question presents itself with inviting insistence. It is easy to suggest that since the allegiance of the mother has never been accepted her situation is as if she had never entered the territorial limits of the United States, and the child’s political status is what it would have been had the birth occurred at sea or elsewhere outside the jurisdiction of this country. But we are at once confronted with the principle so forcibly expounded and so often reiterated in the Wong Kim Ark case that under the common law, international law, and the fourteenth amendment of the Constitution the place where the birth actually took place is one of the two great factors on which American citizenship depends. It is impossible to overlook it or to attempt to supplant it by dint of legal fiction. The solution of the question would seem to turn on the meaning to be attributed to the words “subject to the jurisdiction.”
Its purpose was stated in the Wong Kim Ark case to be to exclude in the fewest and fittest words possible the children of members of Indian tribes, the children of aliens in hostile occupation, and of diplomatic representatives of a foreign state — recognized exceptions to the “fundamental rule of citizenship by birth within the country.” This fundamental rule was then designated as “birth within the allegiance also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the King, and embraced, it is said, all persons born within the King’s allegiance and subject to his protection. Allegiance, obedience, faith, loyalty, protection, power, and jurisdiction are classed together apparently as synonymous terms. “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.” It is of interest to note the frequency with which the terms “residence” and “domicile” are used in connection with “allegiance” and “subject to the jurisdiction.” Justice Harlan is quoted as saying in the dissenting opinion in Elk v. Wilkins that an Indian “having severed himself from his tribe and become a bona fide resident of a state and thereby become subject to the jurisdiction of the United States, within the meaning of the fourteenth amendment” and again: “The amendment in clear words and manifest intent includes the children born within the territory of the United States of all......persons......domiciled within the United States’’ “Chinese persons are entitled to the protection of and owe allegiance to the United States so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof’ in the same sense as all other aliens residing in the United States.”
Finally, in the last paragraph of the opinion the court draws attention to the fact that the parents of the petitioner had at the time of his birth a permanent domicile and residence in the United States and were carrying on business there.
From the language and reasoning in the Wong Kim Ark decision it is difficult to dissociate the words “subject to the jurisdiction” from the idea of unqualified subjection to the national protection. As before stated, an alien woman held for deportation is in no sense a resident of this country, and the Supreme Court, not once but several times, uses language which indicates strongly that residence, no matter how transitory or how brief must exist in order to give rise to allegiance. “Allegiance and protection,” said Chief Justice Waite, in the case of Minor v. Happersett, “are reciprocal obligations. The one is a compensation for the other; allegiance for protection, and protection for allegiance.” By refusing the alien’s offer of allegiance the United States indicates not only its unwillingness to extend its protection but actually refuses to do so. To refuse its protection is to refuse to the extent that the dictates of national justice will allow, the benefits of the machinery by which protection is afforded; in a word, the full complement of the laws which, when enforced, constitute the physical manifestations of the “jurisdiction” of the state. In the case of the child, as in that of the mother, presence under detention does not constitute residence; and, therefore, its relations to the United States do not partake of the nature of allegiance, and consequently fall short in laying the foundation for the existence of that protection without which the child could not, it would seem, be correctly said to be “subject to the jurisdiction of the United States.”
The above must not be taken as intending to convey the idea that allegiance cannot exist without residence. A sovereign state has the right to designate who shall become its citizens, and under what circumstances the privilege of citizenship shall be bestowed. We have already seen that, under the Act of 1855, a foreign woman can by marriage enter into a condition of allegiance to the United States even though she has never entered the country. “The acquisition,” says Mr. Dicey, “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.”
It is only where allegiance is predicated of an individual within the territorial limits of a foreign sovereign state that residence appears to be necessary. This is the temporary allegiance owed by strangers sojourning in a foreign state in return for the protection which they enjoy by the mere fact of having placed themselves under the sovereign’s jurisdiction. And it is thought that this protection must exist even though the presence of the alien within the territory of a state involves a breach of the municipal law of that country at the time of entry.
b. Of Aliens Unlawfully Residing in the United States.
This point may be considered in connection with the following state of facts: Two aliens, man and wife, both excludable under the immigration laws, succeed in evading the watchfulness of the immigration officials, and in taking up their abode in the United States. After living here for a year a son is born to them. Their unlawful presence becomes known to the immigration officers, and together with their child they are arrested on a warrant of the Secretary of Commerce and Labor ordering their deportation. The facts are admitted. Does the immigration law apply to the son born in this country? Or, in other words, is the child under these conditions born in, and subject to the jurisdiction of the United States? It is admitted that at the time of the arrest the parents had come to this country with the intention of making it their home, and actually established their home here in pursuance of their original design. In the words of Mr. Justice Gray, every subject of a foreign country while domiciled here is within the allegiance and protection, and consequently subject to the jurisdiction of the United States. Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile — it is immaterial which — in this country. True, the parents never acquired a municipal status by virtue of or under the immigration law; and they never acquired a lawful domicile in the sense that they were never entitled to enter for the purpose of establishing a home. But the fact remains that they entered this country and proceeded to reside here, until their arrest, in enjoyment of every benefit which the law of the United States confers on persons lawfully resident here, and under the same duty to carry out their correlative obligations. Their temporary allegiance to the United States was complete and gave rise to reciprocal protection on the part of the state, unaffected by the fact that in order to enjoy and exercise the rights and duties incident thereto they had violated the immigration law.
This does not mean that an alien may continue in a position of allegiance to the sovereign against that sovereign’s will. The state may prevent the existence of the condition, by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner. But as certain as is the fact that any such alien resides within the limits of a given sovereign state, just so certain is it that the mutual relation of allegiance and protection exists. To deny this would be to deny the fact of sovereignty itself, and the existence of a sovereign right, which, like the inherent right of an independent member of the family of nations to expel or exclude aliens, cannot, in the words of Mr. Justice Field, “be granted away or restrained on behalf of any one.” The case under discussion would seem to differ from that of the child is born in detention in this: that the latter at the time of his birth is not residing nor is his mother residing in the United States, and, therefore, he is not born in allegiance to or subject to the jurisdiction thereof; while the child born of alien parents who, though under the immigration law they have no right to do so and are subject at any time to deportation thereunder, are nevertheless residing in the United States and owe temporary allegiance thereto, is necessarily born in allegiance to, and, therefore, is a citizen of this country. [emphasis in original]
Whew. That was kind of a lot. Also, it was annoying to try to copy/paste from that source; I hope I managed to clean it up acceptably.
Ok, thoughts. First, I want to remember that this is just a person's commentary, not a holding of the Court or anything. They're clearly just trying to interpret some of the same cases that we all know about now. This is their take on interpreting them. It might be right! But that's what it is.
Second, to the best of my reading, this commentary wants to draw the line at residence. They think that if an illegal alien is caught and detained before establishing "residence", then even if they have a child on US soil, the US "refuse[s] the alien's offer of allegiance". Why can't the US 'refuse the offer of allegiance' to an illegal alien who made it across the border undetected? I'm not entirely sure. They seem to not think that a 'bare legal prohibition' can do so:
Does the fact that the parents belong to a class of aliens whose allegiance the United States does not desire and whose entrance into the United States is forbidden by law affect the political status of the child? Obviously not, unless the bare legal prohibition suffices to prevent the parents from acquiring a residence or domicile — it is immaterial which — in this country.
I'm not entirely sure why? Maybe the "unless" is saying, "Uh, maybe they could pass a law that suffices to do so"? They say that the alien cannot "continue in a position of allegiance to the sovereign against the sovereign's will." But I'm sort of not sure how?
The state may prevent the existence of the condition, by making it impossible for the alien to acquire a residence within its territorial limits, or, if the condition exists may withdraw its protection by expelling the foreigner.
Does this mean that they have to physically prevent them from acquiring residence? How does the sovereign make it "impossible", given the reality of the physical world? Can they do it with a bare legal prohibition? I don't know! It just feels sort of weird to say that they can't get allegiance-by-residence against the sovereign's will, but also say that oopsie-daisy, the sovereign's will didn't have enough of a panopticon to physically show up and physically prevent residence, so they can get allegiance-by-residence against the sovereign's will.
I may be reading it wrong, but even if I'm reading it right, and they think that an illegal immigrant can get allegiance-by-residence against the sovereign's will if the sovereign doesn't physically show up in time to stop it before a baby is born (and thus, the baby is a US citizen), I'm not sure that's the wrong line? I'm not sure it's the right line, either? I don't know!
What I do know is that Plyler cited this for the caveat that the "principles of sovereignty and allegiance" might form some sort of bound on the meaning of "subject to the jurisdiction thereof" for the purposes of the Citizenship Clause. If it does, does that mean this is the case also for "within the jurisdiction"? Does that mean there is this one possible difference? I don't know! As I wrote in the chonker post:
That is, the phrase "bounded only, if at all, by principles of sovereignty and allegiance". Like, to me, that's kind of been the question all along?! Is he saying, 'Nah, those principles of sovereignty and allegiance aren't real bounds; maybe they were at one point, but now they basically don't matter'? Is he saying that principles of sovereignty/allegiance might provide bounds for the Citizenship Clause, but not Due Process/EPC? That would seem contrary to him just saying that they're the same? I don't understand how it's supposed to work.
I don't think Plyler cleared this up at all. Maybe the Roberts Court will do so. Maybe they'll say that this 1912 commentary got the principles of sovereignty and allegiance right, and so long as an illegal alien got allegiance-by-residence, even if against the sovereign's will, their child is a citizen. Maybe they'll clarify whether these principles affect both "within the jursidiction" and "subject to the jurisdiction thereof", or whether there's actually a difference that wasn't fully analyzed. I don't know what they'll do! I think it's a mess.
The other thing that I know is that the entire discussion is squarely within the domain of reasoning about sovereignty, allegiance, license (perhaps), and jurisdiction, and the questions there are subtle and difficult. And that the same moment that a person acknowledges that there is something, anything, that actually needs to be said on these topics to be able to explain the various possible cases, the very first place that seems most natural to start from is Schooner. That's why the Amar bros did it. Where else are you going to go to even start building a theory for how this works for even the case of foreign ministers, much less all these other cases?
I'll finish by repeating something that I only said in a reply comment on the chonker post. Perhaps my best reading of Schooner is wrong, and a better reading of how it treats sovereignty/allegiance/license/jurisdiction ends up with a different result. It's even possible that Schooner got some piece of one of the various cases wrong! But I think a person needs to seriously grapple with Schooner to provide a basic framework first, and then one can start looking for how these principles best fit into a theory that can be applied to all the various cases.
ControlsFreak
3d ago
Akhil and Vikram Amar, along with their student, Samarth Desai, have been posting a series of articles on SCOTUSBlog about the birthright citizenship case. I haven't really covered them. They sort of trickled in as I was working on my chonker post on the topic. I'm not going to go back and pick at every one of them. They have pretty clear difficulties for their arguments once you've just read through all the case law. They do, indeed, cite many of the relevant precedents. I would even give them credit for not really getting distracted by the smattering of random state court opinions that have been mined for dicta.
Yesterday, they posted another installment, with the primary argument being that since "parents" (or variants) are not to be found anywhere in the text of 14A, one simply cannot consider them in any way. Of course, this runs into the typical difficulties if you've read the case history. I won't go through this post in detail either. Suffice to say, this one doesn't talk at all about Indians; they address that case in other posts, and, well, it leaves something to be desired, for sure. But I guess I'll just let their glaring lack of addressing it here speak for itself.
What stuck out to me was this section, addressing the other categories that pose difficulties for their position:
What about the traditional “exceptions” to the general rule? (These exceptions involve children born to foreign diplomats, children born on quasi-sovereign Indian land, children born behind the lines of an occupying enemy army, and children born aboard foreign-flagged warships.) At pages 3 to 4 of his reply brief, the solicitor general claims that the Trump v. Barbara respondents (represented by the ACLU) “recognize” multiple “exceptions” to birthright citizenship “based on parental status.” We doubt that’s the best reading of the ACLU’s brief, but even if it is, it’s surely not the best reading of the Constitution. To win the case, the solicitor general needs to outrun not just the respondents, or even the doctrine, but the document itself. And as we’ve explained in prior writings, the soil-and-flag touchstones cleanly explain both the scope and the limits of the Constitution’s grand birthright-citizenship guarantee. The so-called exceptions are really just applications of the originalist “under the flag” principle.
True, one – and only one – of the birthright-citizenship rule’s main exceptions, exempting an American-born child of a foreign diplomat, is parent-based. (The others, as Akhil’s amicus brief carefully explains, are based entirely on birth-place, and in no way whatsoever on birth-parentage.) But even the tiny diplomat-child wrinkle, properly conceptualized, is an exception that illustrates and confirms the under-the-flag rule. A legal “fiction” of “extraterritoriality” treated diplomats and their children as if they were floating human chunks of foreign soil, with partial or total diplomatic immunity from America’s laws. Indeed, diplomats and their broods were seen as personal extensions of the foreign sovereign.
To see this point most vividly, imagine that Queen Victoria herself visited America in 1869 and gave birth to a child on American soil. Were America to claim this heir to the British throne as an American citizen, war between America and Britain might well have ensued. The 14th Amendment, properly read, viewed neither Victoria nor her hypothetical baby as ever being squarely “under the American flag.” The monarch, and her brood, and her diplomats, and their broods, were always in legal contemplation under the British flag, wherever they went, rather like British warships in American waters. But none of this extraterritoriality logic applied to American-born babies of foreign sojourners generally.
I didn't want to spend the time to copy over their links, so click through if you want to read them. What stood out to me was that their only case link was to, wait for it... Schooner! Of course they're appealing to the framework and theory of Schooner! That's the case that elucidated a framework and theory for how to think about the principles of sovereignty, allegiance, license, and jurisdiction. They even pull what is perhaps one of the most confusing examples from the case - when a sovereign, himself/herself, were to enter the US.
Of course, they don't talk about Schooner's discussion about the case in which a foreign sovereign entered the US without the consent of the US. Nor do they actually work through the rest of the framework and theory that Schooner put in place. They want the Full Schooner, but they don't want to take it seriously! They don't want to actually read through the case and engage with how the opinion says the framework applies to various specific situations. They just want to pull very specific pieces and then form their own, different, theory to wrap around it. It's just so glaring now, every time I see someone write on this topic. I can't unsee it.
ControlsFreak
4d ago
The vast majority of people have a completely wrong conception of what "proportionality" means in international law. The most common belief, which is completely wrong, is that one counts up the amount of damage that Party A did to Party B and say that the amount of damage that Party B then does to Party A must be in some way proportionate.
The part of international law that contains the thing generally referred to as "proportionality" is International Humanitarian Law. You can already get a sense that it has something to do with pain to civilians, who are not, in a sense, "part of the conflict". Indeed, the main treaty provision that is pointed to for this principle is Article 51(5)(b) of Additional Protocol I of the Geneva Convention. It prohibits attacks which:
may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
That is, it acknowledges that there will be military objectives, and that pursuing those military objectives may cause damage to civilians. In some sense, military commanders are supposed to weigh those things. This is not a trivial task, and there aren't clear, objective ways to compare those things, either. But the entire consideration is different in character than how it is considered by most people.
ControlsFreak
13d ago
People advocating for the court to rule in the president's favor aren't making a principled legal argument, they're looking for an escape hatch where they can end birthright citizenship for illegal aliens but have everything else stay the same.
I don't know if this is actually a swipe at me or not, since I said that my best reading of what the Court has done to date, within the framework of Schooner, would have the Court ruling partially against the President and partially for the President. But then you only call out illegal aliens, so maybe it's still a swipe at me.
Suffice to say, I have now waited 24hrs since further elaborating1, and I would like to include that I do not appreciate the low-effort insult. I have put forth significant effort in trying to, as neutrally as possible (I might have failed!), present a long history of confusing cases on a confusing topic. I believe I have genuinely tried to give my best effort to glean some sort of theory and framework that is something of a 'best fit'. I use that phrase with a sort of connotation from mathematics in the back of my mind, where you have very messy data, and you know you are unable to construct a theory that accounts for all aspects of it, so you attempt to try to fit some sort of understanding, knowing that it is messy and that there may be errors/difficulties/room for revisions to the theory that can increase explanatory power.
Coincidentally, but hilariously as if it were on cue, Short Circuit just linked this 2-1 decision from the Fourth Circuit, with a pretty bitter fight over several topics, one of which being jurisdiction. They fought over multiple different types of jurisdiction in different contexts. The dissent even has hypos of whether the US invading Normandy on D-Day made it "US territory", which is hilariously apropos of my Footnote 7. Does one sort of have to conclude that the Fourth Circuit thinks that if a child was born to a hostile enemy alien belligerent in a military prison in Iraq, it would be a US citizen? I don't know! It's crazy confusing!
You're an incredibly smart commenter here, and you're clearly a well-trained legal professional. I typically highly enjoy your legal insight. I would actually very much appreciate if you could engage meaningfully on the topic. That could be arguing that the Schooner framework isn't actually the correct "best fit" framework. It could be arguing that the Schooner framework, properly applied, should come to a different conclusion. It could be a wide variety of other things, too. But I don't particularly appreciate a low-effort swipe, an insult to my character as an honest interlocutor trying to make any sense out of an extremely messy topic, or an insanely surface-level dichotomy that just doesn't seem to cohere with a significant amount of what we've seen here.
That's not even to say that the surface-level dichotomy is wrong! Like I said, it might be right! Perhaps it is the best fit, but it would seem to require other "real consequences in areas outside of citizenship" as well as probably overturning cases and having real consequences directly within the topic of citizenship. Maybe that's right, and those things should be overturned! I just want your help in how we can actually make a 'best fit' theory/framework and understand what its consequences would be.
1 - Perhaps 24hrs was not sufficient, and you are still thinking deeply about the matter, working through the issues, and preparing a very helpful response. If so, I appreciate your effort greatly.
ControlsFreak
13d ago
I think there are both meaningful Constitutional and statutory triggers/constraints that are different for the two cases. I'm not quite sure how an understanding of whatever form of jurisdiction impacts them. At least for the main route that has been tried (invocation of the Invasion Clause), there is not a lot of substantial high-level judicial reasoning on the topic. There are federalism questions at play, too. In my brief search for writing, it's kind of funny that this was brought up earlier in the 90s by California/New York/New Jersey, which are not the 'usual suspects' that you would expect.
But beyond just the Invasion Clause, there are other statutory triggers/constraints. It's likely to get complicated, and I'm probably not likely to spend the time required to really dive deep into it. I think it suffices to say for the Schooner framework that Chief Justice Marshall is thinking that there is a meaningful difference between an Official Public Armed Force that has been commissioned or otherwise designated as being in direct support/control of a foreign sovereign and otherwise private individuals who are committing unlawful entry.
ControlsFreak
13d ago
I think it is abundantly clear that I am unusually willing to engage in debate and spend an immense amount of effort in elaborating on my arguments, usually in good faith. That includes people I earnestly disagree with or those who dislike me.
I think that is evidence that someone who still manages to annoy me into disengaging is more likely to be in the wrong than I am.
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.
ControlsFreak
14d 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
14d 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.
ControlsFreak
16d ago
Thank you! It's a chonker.
ControlsFreak
16d ago
Cool. Thanks! I'll try to remember that, so I won't accidentally ask again the next time I try to make a main post, which could be months. Mods! Hello! Not @'ing you or calling you out or anything, but if you happen to see this. :) Thank you!
ControlsFreak
16d ago
Tech support question. I just posted a new main post. Logged in, it shows fine. If I open TheMotte in incognito, it doesn't show. If I open the direct link in incognito, it says [Deleted by user], which, uh, I don't think I did? Do all main posts need to be approved? Did I break something?
We have designs
As I wrote (and just linked to):
Stepping back and taking a very broad view, there are several steps to the research, development, and engineering of a system. Generally, one begins with physical principles. With those physical principles, one can compute theoretical limits. One can also sketch a concept of operation based on those physical principles. Often times, at that point, one can still handwave away many practical concerns and compute how close a concept could, in theory, get to the raw theoretical limits. As one progresses, one may include an increasing number of more real-world difficulties.
For nuclear rocketry, we are not building on a blank slate, as though no one has ever started down this path at all, as though we simply have no idea what the theoretical limits are or what the concept-based performance could look like (still handwaving away many practical considerations). People have been doing this work and publishing it for half a century.
Sigh.
What we DO know is that most fusion systems provide much better specific impulse and exhaust velocity than chemical rockets can.
As I just wrote, and you ignored:
I'll note here that you've already betrayed that you know nothing about what you speak of. We already have some other technologies that are "massively more efficient", but you're not talking about them. They have trade-offs, because yeah, trade-offs exist. When discussing them, we talk about standard performance metrics and how that corresponds to capabilities.
But I'm glad to hear that you've finally admitted that there are at least two useful performance metrics that we can actually talk about (specific impulse and exhaust velocity). So, uh, about how much better, in theory? (A range is perfectly fine here.) How does that compare to other existing systems? Are there tradeoffs with other performance metrics?
ControlsFreak
17d ago
The physics has already been worked out!
This was literally my claim, which you rejected.
We do not need to go over it.
This is, in a word, stupid. Perhaps in two words, monumentally stupid. It is nothing other than a self-declaration that you intend to remain ignorant of what you speak.
a general point that using a massively more efficient power source is superior
Sure. Are there trade-offs? How much more efficient? Is there a performance metric for that? What does it look like? What does that physically mean in terms of capabilities?
I'll note here that you've already betrayed that you know nothing about what you speak of. We already have some other technologies that are "massively more efficient", but you're not talking about them. They have trade-offs, because yeah, trade-offs exist. When discussing them, we talk about standard performance metrics and how that corresponds to capabilities.
ControlsFreak
18d ago
Frankly, I was saying that your prior comments are basically incoherent.
Instead of taking the experts at their word, we should debate the physics of fusion rocketry as amateurs
...lol, you don't know what my profession is.
Look, I didn't want to wave credentials around, but the reason why I got into this discussion is because you were showing that you are ignorant of the physics involved. What I'm arguing is that you need to learn a little bit about it before you make claims about it. Especially before you make dismissive claims where you say that we don't even need to consider the physics involved. That we don't even need to think about concepts like the rocket equation, specific impulse, thrust, delta-v, etc.
My claim was that we already had pretty decent published literature on various not-yet-existing propulsive methods, that this literature uses the standard physics and the standard methods of analysis and standardized performance metrics. You were saying that we should just ignore all that. That it was wholly irrelevant.
Nah, dawg. You need to have a basic understanding of the domain you want to speak on. If you're going to now agree that we can go look at the published literature (at least I think this is what you want to go for; you just called out an "internet search", so maybe you're going to crackpot sites) and that doing so is not wholly irrelevant, then one requires a sufficient understanding of the basic physics and terminology to have any clue what it is, and is not, saying.
Ah, so you think that there is something to be looked at in terms of designs, and at least something about distances/payloads, yes? And you think that this information can be found and understood with just a quick internet search? You just think that these internet sources don't use first principles reasoning, conceptual designs, concepts like specific impulse, thrust, and delta-v, etc., I guess. Those things are wholly irrelevant to your point. Am I understanding you correctly?
ControlsFreak
20d ago
As long as it's significantly better than chemical rocketry, which it is, then that makes it a better option for long-range spaceflight, since it can do the work and chemical rockets can't.
Lets use another one of your examples. Cars are much better than horses. Does that imply that cars are a better option for long-range spaceflight? If you think this statement doesn't quite make sense, try to explain without reference to any first principles, conceptual designs, concepts like specific impulse, thrust, and delta-v, etc.
Alternatively, to hone in really narrow:
since it [fusion rocketry] can do the work
How do you know that it can do the particular type of work you're asking it to do? Wouldn't it be nice if you had some reasoning, from first principles and/or conceptually, which could inform you as to whether it is plausibly up to the type of task you're asking of it? Some sort of check to see if you're accidentally expecting a car to go to the moon, just because it's better than a horse?
ControlsFreak
21d ago
Stepping back and taking a very broad view, there are several steps to the research, development, and engineering of a system. Generally, one begins with physical principles. With those physical principles, one can compute theoretical limits. One can also sketch a concept of operation based on those physical principles. Often times, at that point, one can still handwave away many practical concerns and compute how close a concept could, in theory, get to the raw theoretical limits. As one progresses, one may include an increasing number of more real-world difficulties.
For nuclear rocketry, we are not building on a blank slate, as though no one has ever started down this path at all, as though we simply have no idea what the theoretical limits are or what the concept-based performance could look like (still handwaving away many practical considerations). People have been doing this work and publishing it for half a century.
Do you agree or disagree with this general picture?
ControlsFreak
22d ago
Why would we need to escape the rocket equation? It's like going from horses to cars.
Neither horses nor cars are propelled by the physics of the rocket equation. The rocket equation is an exponential (or a logarithm, depending on which way you arrange it). It provides a hard limit on performance that cannot be hand-waved away. You say, rightly, that future technologies can perform better. This is true. How much better? What are the numbers that we can plug into the rocket equation in order to compare to the other numbers that we can plug into the rocket equation? It is only then that we can really get a sense for the scale of how much better future technologies can be.
ControlsFreak
24d ago
PRISM is a code name for one of the tools that Section 702 authorized.
I think an equivalent way of saying this is, "Section 702 is the statutory authorization for tools like PRISM."
(I believe your comments are blurring the distinction between being something and authorizing something.) The fact that PRISM is a code name and was classified justifies calling it a "black program". Also, I interpreted the phrase line item from OP to be budgetary, since I have only ever heard that term used in a budgetary context before.
Perhaps blurring occurred. I would contend that the blurring occurred here:
As for the statutory authorizations, they were black programs and their replacements are almost certainly black. There's no statutory line item for PRISM or XKEYSCORE any more than there was for the SR-71, and there won't be for the replacements either.
Is this talking about "statutory authorizations"? Or is it talking about line items, which you interpret to be budgetary?
I contend that if it's talking about "statutory authorizations", we obviously have it. I will concede that if all that Nybbler was saying was that we don't have public budget lines, then sure, we don't have it. But I would also contend that that's pretty much entirely beside the point when the conversation is about what they have legal authority to do and what we know about what their programs actually did.
I also think that whether proper names are in the statutory text isn't particularly salient for whether we have a statutory authorization or are able to understand how something works. A couple of prompts to some AI on the topic, and it appears that the term "Head Start" was nowhere to be found in the Economic Opportunity Act of 1964, but nevertheless, a program by the name "Head Start" was understood to be authorized by this statute. That does not imply that this program was so 'black' that we can't understand anything about how it works.
Look, I'm normally not this belligerent, but Nybbler in particular has a history of being willfully ignorant on this topic. Over and over again.
296, but I absolutely lol'd at that one and the 420 one, in exactly the same way as @sarker.
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