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Notes -
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.
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:
But, uh, how did this work?
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.
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:
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:
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.
Well, I for one am still glad to see the writeup.
This is a good reminder that politics, especially in the courts, don’t always fall on public-discourse partisan lines. Maybe that’s been less true in the Trump era?
Either way, looking at the Circuit Court’s decision, there’s a conflict between the appellants and the entire Samoan government, which has historically not wanted citizenship. Since that intermediate level is also democratically elected, it gets the allegiance. There’s some analogy to the Native American nations. In this sense, the Biden administration is choosing between the majority and minority positions within American Samoa. I’m not surprised that they declined to jump on that grenade.
I agree that it has no bearing on today’s question. There’s no intermediate layer of government to which illegal immigrants (or their children) owe allegiance. We’re back to Wong Kim Ark: jurisdiction or no?
This is pretty plausible to me. But I don't really know? Of course, the question only matters to the extent one does think that allegiance has something to do with it, and I'm still not sure that everyone does. Moreover, my first instinct is that this probably mostly matters for analysis of whether they're "subject to the jurisdiction thereof", and it's not clear to me to what extent this sort of analysis bleeds into the "in the United States" question. Which, again, at least the USG position in the past decade has been to concede that they do owe enough allegiance to the US to be considered subject to the jurisdiction thereof (if that is "the relevant sense" of the phrase).
But in the event that it does matter, then I think that I (at least personally) am in for many question marks concerning how the analysis is supposed to go. I think it would require a lot of both historical work and theory work. For example, as mentioned, the Court long ago said that Puerto Ricans owed allegiance to the US. I don't know the details of how their local government was set up. I vaguely recall that the US still basically appointed someone there, but the locals also had some say in other parts of it. Obviously, there are parallels and possible question marks to be made with Indian tribes. What sort and how 'much' localized government counts? How much US gov't control above the localized process is acceptable before flipping the allegiance back the other way? And of course, questions still linger from that Fourth Circuit opinion about places like military prisons in Iraq. The US destroyed the foreign State that had existed. Does trying to prop up some other localized gov't matter? What if that local gov't has no authority whatsoever over places like military prisons?
My biggest concern really is the question about which parts of the analysis are purely in the domain of "in the United States" versus what parts are concerning "subject to the jurisdiction thereof". Where does allegiance matter? Where does it not matter? After another day, I'm currently waffling on whether I do actually need to deep dive on this other set of questions to see if I can make sense of a reasonably sharp distinction. Sigh. It's so confusing.
I think that the "and" in the 14th Amendment, by imposing two conditions, makes it clear that one can be subject to US jurisdiction but outside of the United States. If the clause only referenced jurisdiction it would be a different matter. There are already people who aren't in the US by any definition of the term, but are nonetheless recognized as being subject to US jurisdiction. For instance, a man in Guatemala who enters into a business contract with a man in Texas might be subject to US jurisdiction even if he's never been to the US in his life.
Right, and conversely, it can be the other way 'round, too. One can be inside the United States, but not subject to the jurisdiction thereof. Pretty much everyone would agree on examples like Napoleon or his diplomats. Questions start to become interesting when we consider, say, foreign armies with/without the consent of the sovereign or Indians, at which point, the natural question is to inquire as to "the relevant sense" of the phrase. One might even wonder if such a man in Guatemala who enters into a business contract with a man in Texas satisfies "the relevant sense" of the phrase. Maybe he does!
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