Thread: FOX LEGAL EXPERTS DIVIDED ON IMMIGRATION AND BIRTHRIGHT CITIZENSHIP

by KEN KLUKOWSKI
6 Sep 2015

Debates still rage on whether the children of illegal aliens are entitled to birthright citizenship, and Fox News now has two of their prominent legal personalities coming down on opposite sides.

Advocates for open borders and amnesty found support in Judge Andrew Napolitano’s argument this week in the Washington Times, where he argued that the Constitution does not empower the federal government to make immigration laws, and the Constitution guarantees a fundamental right to travel, under which illegal aliens may freely enter the United States and move within it.

Advocates for upholding the original meaning of the Fourteenth Amendment found support in Judge Jeanine Pirro, host of Fox News’s “Justice with Judge Jeanine.” On her Sept. 5 show, Pirro took the position that the Supreme Court has never held that the Fourteenth Amendment’s requires birthright citizenship for the children of illegal immigrants.

Judge Pirro is right; Judge Napolitano is wrong. The Citizenship Clause of the Fourteenth Amendment provides, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, shall be citizens of the United States and of the State wherein they reside.”

Breitbart News has published a full series on birthright citizenship, which all turns on the meaning of the Constitution’s phrase of being “subject to the jurisdiction” of the United States. Our first report explained how the Fourteenth Amendment—which Congress drafted in 1866—restated the Civil Rights Act of 1866, which explained that “subject to the jurisdiction” meant that the person was not a citizen of any foreign power and that the Supreme Court held in 1884 that courts should interpret the Fourteenth Amendment consistent with the Civil Rights Act.

Our second report explained that the Citizenship Clause is a the constitutional minimum for citizenship, not its outermost limit, and that Article I of the Constitution allows Congress to be however generous it wishes in granting citizenship through its Immigration and Naturalization Act (INA) to foreigners who are not entitled to it by the Fourteenth Amendment.

One of our subsequent reports discussed the scholarship of top constitutional professors who showed that the framers of the Fourteenth Amendment explained during their congressional debates that the Citizenship Clause would not apply to citizens of foreign countries (such as illegal aliens), and the Supreme Court’s first two authoritative cases on the meaning of these provisions of the Fourteenth Amendment—from 1873 and 1884—formally adopted this meaning as the correct interpretation of the Citizenship Clause.

Finally, we reported on the 1898 case where the Court deviated from this original meaning said that the Citizenship Clause could reach foreign citizens, but limited its holding in that case of children born to permanent legal residents in this country, not illegal aliens.

Napolitano’s position has been completely rejected by the Supreme Court. The Court has always held that the federal government has plenary authority under Article I, Section 8, Clause 4 of the Constitution to make immigration laws: laws that determine who can enter this nation, and for foreigners, how long they can stay, under what conditions, and whether they can someday become citizens.

After Arizona v. United States, we reported how the Supreme Court in 2012 was divided on how immigration law works when the president does things without Congress, but that the Supreme Court reaffirmed a century of precedent that the Constitution vests all immigration powers in the federal government. There’s simply no legal debate on that question at all.

Likewise, Napolitano’s right-to-travel argument is wrong, for three separate reasons. First, it is a right to interstate travel only, not international travel to cross the U.S.-Mexico border. That’s why any American citizen can, for example, move freely from Indiana to Ohio without government permission. It does not—and never has—applied to entering or leaving this country.

Secondly, it is a right to travel from one state to another and settle in that new state to live there permanently. That is what the case Napolitano cites—the Supreme Court’s 1969 case Shapiro v. Thompson—was about: a person moving from Massachusetts to Connecticut to receive welfare benefits in her new state. If this right applied to illegal aliens, they would have the right not to just enter the United States, but also to permanently settle here and receive immediate welfare benefits.

Third, the Supreme Court has repeatedly held—as recently as its 1999 case Saenz v. Roe—that the right to travel is a right of American citizens only; it applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause (which immediately follows the Citizenship Clause), a provision that applies to U.S. citizens only. Natural rights—by contrast—apply to the states through the Fourteenth Amendment’s Due Process and Equal Protection Clauses. Foreigners have never had a constitutional right to free movement within this nation; only American citizens can do so.

By contrast, Judge Pirro was exactly correct when she explained that, in the Supreme Court’s 1898 case, it abandoned the original meaning of the Citizenship Clause. U.S. v. Wong Kim Ark was a case where the Court’s holding only applied to foreigners “domiciled” in the United States—a legal term meaning permanent lawful residents. The Court’s statements quotes to support birthright citizenship for illegal aliens is what is called obiter dicta, which is not part of the Court’s holding and thus is not binding precedent.

Pirro also noted that in 1923, Congress retroactively granted citizenship to American Indians, who, up to that point, had been denied citizenship ever since the Fourteenth Amendment’s ratification in 1868, thus proving that the Fourteenth Amendment never granted them citizenship. Pirro’s only mistake is saying that it appears that Congress was ignoring the Fourteenth Amendment.

That’s not entirely accurate. Instead, it shows that the Citizenship Clause is a floor, not a ceiling. As our previous report explained, the Fourteenth Amendment says that certain children born in this country must be granted citizenship, but it leaves Congress unfettered to grant citizenship to be more generous than that floor requires, and it can give citizenship to anyone else Congress wants. That’s what the current INA does, and it’s why Congress can narrow the INA back to its constitutional floor at any time to eliminate the issue of illegal aliens’ anchor babies receiving birthright citizenship.

http://www.breitbart.com/big-governm...t-citizenship/

We should know by now that court rulings just follow the course of politics. Probably the phrase 'subject to the jurisdiction thereof" was meant to not naturalize individuals such as diplomatic personnel, conquerors, foreign visitors or business travelers. However, when you get into the matter of illegal aliens, left wing lawyers always argue that even if they are here illegally they still get constitutional protection.

Another twist:
Discussion on how to end the “anchor baby” problem whereby kids born to tourists, illegal aliens, and other non-resident aliens are documented as U.S. citizens by virtue of being born in this country has focused on getting a law through Congress and signed by the president. That would set the stage, when challenged by the immigration advocacy lobby, for a Supreme Court decision on whether the current practice is required by the citizenship clause of the 14^th Amendment.
But, the debate over this issue prompted by Donald Trump’s immigration policy paper has provoked another view on that issue. Writing in The Hill Center for Immigration Studies staffer, John Frere, suggests that there is also an option for executive action.


As much as executive action on immigration has become abused by the Obama administration to dismantle immigration law enforcement, it could work to toughen enforcement. In the area of birthright citizenship a president could instruct the executive branch to apply a definition of U.S. citizenship by birth that recognizes only those births that are to one or more U.S. citizens or legal permanent residents. Frere argues that this action could deny U.S. passports and SSNs to the children born to tourists, illegal aliens and other non-residents.


The application for a U.S. passport already requires the applicant to specify the names and birth places of the parents. That information coupled with immigration data on the parents would establish whether the birth of the child conformed to the new birthright policy. If this were done, it would immediately impact the birth tourism industry, because the purpose of it is to gain a U.S. passport for the baby before returning home. It would have less impact on illegal aliens, because they generally have no short-term intention of traveling home and, therefore, are less likely to apply for a passport for the child.


The issue of curtailing the issuance of an SSN to newborns would be more complicated. The process now starts in hospitals for newborns. The information on the application for an SSN does not require the same information about parents as does the passport application. This means that a new form would be required and a new capability would have to be created in SSA – or farmed out to another agency – to vet the status of the parents and whether they met the new criteria for automatic citizenship for the newborn.


The most important benefit of executive action on the anchor baby issue would be that even if it were confined to the issuance of passports, it surely would provoke a lawsuit challenging the new policy in the same way as would passage of a law. That means that opponents in Congress could not prevent the issue coming before the courts.



http://immigrationreform.com/2015/09...cutive-action/

Leaving the issue of so-called birthright citizenship up to a final decision by the Supreme (black nightie wearing hippies) Court is a formula for open borders. The activists scum who parade around as judges do not deserve our respect let alone our obedience.

Ultimately it is not the Supreme (black lingerie wearing ) Court that determines what the law of the land is, it is the people, who are ultimately the sovereign. And--guess what--the people do not want any foreigner to become equal to them just because their parents sneaked across the border just in time to get free medical care in a US hospital. Screw you Supreme Court, the whole Democrap party, RINOs, George Will, Charles Krauthammer, most of FOX news, judge Napolitano, Ben Carson, Marko Rubio and the whole elitists aristocracy.