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PaperclipPerfector  3mo ago (text post)   36645 thread views

Culture War Roundup for the week of January 20, 2025

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The news is atwitter with talk of an EO on birthright citizenship. It's supposed to be signed today. I haven't seen a draft text yet, so part of this is so that I hopefully get a red notification when someone sees it and can link it here. The other part is to look back to my long long ago comment at the old old old place, with slight modification, since I'm pulling it out of the context of a conversation. The background is that the case that everyone points to concerning birthright citizenship is Wong Kim Ark. It's messy, because Constitutional law is very weird and particular when it comes to Indian tribes (now usually called "native", but at the time, they were called Indian, so I'm not going to bother going and replacing it out of some modern PC-ness). The Indian tribes were considered "separate sovereigns" at the time, which extra muddies the historical water, and that was the backdrop for a fair amount of their comparative analysis.

I know it's annoying, but I'm in single blockquotes; quoting opinions is in double blockquotes, and opinions quoting other opinions is in triple block quote:

[One can] call separate sovereignty a legal fiction that was discarded by statute (though I really don’t think that’s entirely the case, given the steady stream of Court cases on the matter; just the citizenship question was discarded), but this does have import nonetheless for the meaning of 14A. In fact, Wong Kim Ark specifically called this out as a particular category, but basically just to say, “Indians are weird, yo.” They discussed SCOTUS precedent on Indians:

The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.

That decision was placed upon the grounds that the meaning of those words was

“not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;”

that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that

“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ‘born in the United States, and subject to the jurisdiction thereof’ within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”

And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.”

Then, they discuss the dissent in Elk v. Wilkins, which they half seem to quote in favor of their expansive reading of jus soli and half say, “Ah, but Elk v. Wilkins was just about Indians, and they’re weird, so they don’t matter.” (Note: the dissent in question was written by Justice Harlan, who signed onto the dissent in Wong Kim Ark, too.) Ultimately, they just kind of move on and drag along an extra exception:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. [emphasis added]

In sum, it’s really not as simple as, “You can be detained, therefore you’re ‘subject to the jurisdiction thereof’.” In fact, it’s very messy. John Elk was born on a reservation, but the case had approximately nothing to do with physical location. I’m not sure that anyone would think that it would have come out differently if his parents had left the reservation briefly to, say, have his birth in a particular hospital. Further, in his adult life, he surely could be arrested by State authorities. It was entirely about political allegiance. And much of Wong Kim Ark discusses political allegiance, as well. AFAICT, the rule they embraced was, “Political allegiance has something to do with it, but we think that the only cases that are clear are foreign ministers (not consuls, though, in yet another strange nod to the type of criminal jurisdiction that you were referring to) and invaders… oh, and Indians are weird, yo.” Were there reasons for the court to think that the case in front of them should not be excepted? They cite The Schooner Exchange v. M’Faddon:

The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found.

You can start to see how there might be room here. There’s still a linkage between jurisdiction and allegiance, but it’s not entirely clear how it operates in all cases. They’re imputing a temporary allegiance to common travelers, but even this stems from “the implied license under which they enter”. It’s squishy. There are indicators that go the other way, too.

Further, I should note that the majority opinion was clear about the fact that they were engaging in a common law approach to this question (while taking some guidance from the above-quoted statute using the language “not subject to any foreign power”). There’s a lot of squishy room here, which is why folks ... are trying to make the comparison with invaders – he’s essentially saying, “We recognized two cases that were clearly problematic from the perspective of political allegiance; I think this a third.” And I’m not sure that there’s any super knockdown legal argument against that. In fact, if faced with a statute saying, “Illegal aliens are on this side of the political allegiance line,” rather than engaging purely in a common law exercise, I’m not sure how the Wong Kim Ark Court goes. (They had a statute saying that he couldn’t be naturalized, but that’s clearly different.)

A mere executive order may not be enough. I'm sure folks are furiously looking into statutes to figure out if there is anything stronger somewhere that can be played against an EO. I'm sure the details of the text of a forthcoming EO will matter a lot. But I really wonder how this argument is going to go and if Trump will have someone (like Jonathan Mitchell) who can get steeped enough in this legal niche to put together an argument along these lines. Just because the oral argument at SCOTUS would be divine. If they can actually dig all the way down to The Exchange in order to say that black letter precedent actually only covers folks who had an "implied license" when they entered. They could argue that if you were here legally, under an implied license, even just a tourist visa, then yes, your child born on US soil is a US citizen... but if you entered illegally, with no implied license whatsoever, then you simply don't make the cut.

I have little dog in the fight for which way SCOTUS comes out; there are tradeoffs either way. I just really really want these mushy Consitutional issues brought to light. I want it to be clear how mushy it is, and for SCOTUS to do the work of digging all the way back into the depths of the mush in order to say something now. They might hack it together and skim over the top, but ya know what? I almost wouldn't even care. If the argument is even just made, brought to the fore, it would be wild and exciting for a Constitutional law nerd. I would absolutely prefer a statute, just because it gives fewer possible procedural outs and makes it more likely that they have to dig deep into the history (not because I actually want such a statute to be law), but even with just an EO, mayyyyyybe there's a chance?

The executive order is out

Looks like it's stronger than has been suggested here, covering mothers with temp visas, etc. Only applies to those born after signing, avoiding (at least part of) the implementation nightmare.

I predict a TRO or preliminary injunction before the week is out. The ACLU has already announced its intention to sue.

ETA:

Lawsuit already filed in the District of New Hampshire.

Don't they have to wait 30 days for standing?

Probably not. Their cited basis is they are individuals who are currently pregnant who will have children born more than 30 days from now that will be impacted by the order.

Kinda stupid. Better to wait 4 or 8 years and the next Dem president to reverse than to risk a supreme court precedent.

This is a "what does the Constitution mean?" issue. If you take the Constitution seriously, once the issue is on the table you want to get it in front of SCOTUS asap.

If US-born children with noncitizen parents enjoy citizenship revocable by executive order, then they don't really enjoy citizenship. This needs to be resolved in a way which allows some degree of legal certainty, and under the system as it has existed since 1789, that means a definitive interpretation of the Constitution by the institution responsible for doing so.

Agreed. I'd personally be completely fine with SCOTUS resolving the issue in favor of birthright citizenship, but in a way that is much more clear than the current mishmash of extremely old cases that are confusing. To me, the important part is that we get some clarity and certainty. I do hope that the number of people who are harmed in some way during the transient period between the EO and an eventual SCOTUS resolution is minimized, but I acknowledge that even if it is eventually resolved in their favor, there are likely to be some who are harmed in the transient period. With any luck, they'll settle the issue of what the ground rules are, and then it may be up to Congress to make tweaks, given the clarified underlying Constitutional law.

It's one of those few areas where I think the "Cases and Controversies" Clause is annoying. It's not enough that I would want to get rid of it, because it protects the courts from many many other issues that would be a waste of time, but it's one of the few where I would have really really loved if they could have just given an "advisory" opinion on the matter rather than having to wait until something like an EO/statute was passed to force the issue into the courts. So even if I don't necessarily like the EO, I don't think there was really any other way to get a very clear legal resolution of the matter, and since I prefer having the clarity significantly over having the issue always lurking in the background, I weakly support it, with hopes that things like TROs can mitigate most issues until a ruling comes out.

I think the courts will duck the Constitutional issues and make their ruling based on Title 8. Trump will need to get Congress to go along before there's a Constitutional issue raised.

The relevant statutory text uses identical wording to the Constitution, so a sane legal system would find that resolving the statutory issue also resolves the Constitutional one. If Roberts tries to punt by interpreting the US Code one way while reserving the right to interpret the same words in the Constitution a different way, he should be beaten to death with a large hardbacked legal dictionary pour encourager les autres.

That said, the punting opinion does write. Congress passed 8 USC 1401 in 1952 at a time when Wong Kim Ark was good law, so you could claim that Congress intended the Wong Kim Ark meaning of "subject to the jurisdiction thereof" in 1952 even if it intended something else in 1866 when proposing the 14th amendment.

I can't imagine any of the justices except Roberts wanting to punt this one (although I can imagine Roberts sitting on Barrett). So the most likely punting scenario is a controlling concurrence in a 4-4-1 or 4-3-2 mess.

My guess would be that the government loses 8-1 with Alito dissenting.

The relevant statutory text uses identical wording to the Constitution, so a sane legal system would find that resolving the statutory issue also resolves the Constitutional one.

I do not believe our legal system is sane in that way.

I don't think the Supreme Court itself will punt (except in as much as they'll deny cert); I think the lower courts will explicitly not reach the Constitutional issue, basing their decision on statute (even though the wording is the same), and then the Supreme Court will refuse the case. Maybe if the Fifth Circuit goes rogue SCOTUS will be stuck with it.

Very possibly. They have copy/paste language, so it very well may be one of those where they grant cert on both questions and then have a variety of colloquies about whether there is any reason to interpret the same language differently. They may ultimately claim to punt on the Constitutional question, but my guess is that unless there is some form of "smoking gun" in the opinion for why they should interpret it differently, then I think the reasonable inference would be that we have significantly more certainty on the Constitutional question than we did before, and it significantly lowers the chance of a statute passing muster, either.

I would note that the only way they can really claim to punt on the Constitutional question would be if they rule against the gov't. They can't really rule for the gov't on the statutory question and then leave the Constitutional question unresolved. That's part of why they're likely to grant cert on both questions and from that point, there would be some chance of, "We're technically only resolving the statutory question against the gov't and leaving the Constitutional question open, but c'mon, it's gotta be 90+% that the Constitutional question with the exact same language will come out the same way."

You're not getting court precedent against birthright citizenship without a constitutional amendment. This is a slam dunk lawsuit.

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