Re: The Old vs The New

On Nov 18, 2024 at 11:21:15 AM PST, "Ubiquitous" <weberm@polaris.net> wrote:

lcraver@home.ca wrote:

 Ubiquitous <weberm@polaris.net> wrote:

 

What would happen to American-born children left behind by non-legal
parents who got deported? I'm speaking of minors; obviously adults are
on their own unless perhaps they are severely disabled and not able to
fend for themselves.

 
For starters, they're not really citizens, and even if they were, they can
return to America when they grow up.

 
Actually they are.

 
I'd have to find it, but someone born in America of non-citizens doesn't
automagically become a citizen. That law/rule was origianlly meant for
ex-slaves after the War Between the States.

There's actually significant SCOTUS precedent for the idea that the 14th
Amendment's guarantee of birthright citizenship does not apply to illegals.

Even if one believes that United States v. Wong Kim Ark, 169 U.S. 649 (1898)
was rightly decided, thereby creating a definitive floor for citizenship
within the Constitution, outside Congress' regulatory power, for kids born to
all immigrants, there is no way that can apply to people who come here without
the legal consent of the nation.

It's absurd to assert that people who are supposed to be off our soil can,
strictly by trespassing on it, achieve the ultimate benefit of citizenship for
their kids.

The 14th Amendment stipulates two requirements for birthright citizenship:
that the individual be born "in the United States and subject to the
jurisdiction thereof". Let's put aside the debate over what "subject to the
jurisdiction thereof" means. Nobody can unilaterally assert jurisdiction
against the collective will of the nation. But even if the 14th Amendment
didn't contain the second condition and only stipulated that the child must be
"born in the United States", it is beyond settled law that if you are here
without consent, it is quite literally as if you are not present in this
country. This concept should not only shut down the phony birthright
citizenship debate once and for all, but end this notion that illegals can
come here and demand other benefits or standing in court for specific status
against the will of the political branches of government simply because they
successfully landed on our soil.

No foreigner or foreign entity can control the destiny of our nation and force
upon us prospectively an outcome for citizenship, judicial standing, or any
other benefit against the will of the president or Congress. It's obvious that
a country can never be forced to issue citizenship against its will, for if
that were the case, it would cease to be a sovereign country "free from
external control", as the term is defined by Webster's dictionary.

Nobody can dispute that a president has the power to keep out anyone seeking
entry for any reason. As Justice Thomas wrote in his concurrence in Trump v.
Hawaii, "Section 1182(f) does not set forth any judicially enforceable limits
that constrain the president. Nor could it, since the president has inherent
authority to exclude aliens from the country."

Yet I've been asked what happens if, after we close the points of entry, a
caravan sneaks onto our soil between the points of entry. The answer is
simple, because nothing trumps sovereignty. Therefore, for anyone who breaks
into our country without consent or overstays the terms of his or her entry,
it's as if they are physically not present on our soil. Constitutional rights
on our soil, much less the ultimate prize of citizenship, only apply if you
come here with consent. That is deeply rooted in social compact theory and
settled law. As the court said long ago in United States v. Ju Toy (1905), "a
person who comes to the country illegally is to be regarded as if he had
stopped at the limit of its jurisdiction, although physically he may be within
its boundaries".

Already as far back as the 1950s, the Supreme Court had already said, "For
over a half century this Court has held that the detention of an alien in
custody pending determination of his admissibility does not legally constitute
an entry though the alien is physically within the United States." [Leng May
Ma v. Barber (1958)]

This is why the court said in Turner v. Williams (1904) that an inadmissible
alien does not have 1st Amendment rights because "[h]e does not become one of
the people to whom these things are secured by our Constitution by an attempt
to enter forbidden by law."

In the notorious Zadvydas v. Davis case (2001), the court reiterated that any
alien "paroled into the United States pending admissibility" without having
"gained [a] foothold" has "not effected an entry".

The most important case that sheds light on this debate is Kaplan v. Tod
(1925), when the court denied citizenship and relief from deportation to the
daughter of a naturalized citizen who emigrated from Russia.

        On July 20, 1914, the Kaplan family came to Ellis Island to
        reunite with the father of the family, who had been working
        in the country for a few years. The 13-year-old daughter was
        deemed inadmissible for being "feeble minded", but because
        of the outbreak of World War I, her deportation was delayed.
        She was handed over to the custody of the Hebrew Aid Society,
        which had her live together with her father until she was
        ordered deported in 1923.

        In the meantime, the father had become a citizen three years
        earlier, and asserted that because his daughter was under 21
        at the time of his naturalization and was living in the United
        States, she should be automatically granted citizenship
        alongside him, pursuant to long-standing law. But in a
        unanimous and terse decision, the Court swatted down the
        petition:

            "Naturalization of parents affects minor children only
            if dwelling in the United States. The appellant could
            not lawfully have landed in the United States in view
            of the express prohibition of the Act of 1910 just
            referred to, and until she legally landed could not
            have dwelt within the United States."

The Court backhandedly rejected the notion that she "dwelt within the United
States" even though she physically lived with her father for nine years on
American soil, partly with temporary permission from the government. That is
because "she was still in theory of law at the boundary line and had gained no
legal foothold in the United States" and had never "been dwelling in the
United States within the meaning of the Act". Now stop for a moment and
compare the language of the naturalization statute for those immigrant
children seeking naturalization together with their parents to the wording of
the 14th Amendment governing those born here.

The 14th Amendment requires that the child be born here and "subject to the
jurisdiction thereof". It is indisputable that even according to those
opinions in which jurisdiction means territorial jurisdiction and not
political jurisdiction (absurdly rendering the phrase superfluous), the
language of "subject to the jurisdiction" is certainly more restrictive than
the purely geographical and literal phrase "dwelling in the United States".
After all, everyone concedes that Indian tribes and children born to foreign
diplomats were excluded by this phrase, even though they are physically born
on our soil.

Yet, the Court ruled in 1925, based on uncontested precedent, that those
living here unlawfully don't even satisfy the meaning and intent of "dwelling
in the United States"-- even in a case where they were granted temporary
permission to live here on humanitarian grounds. It is therefore simply
preposterous to assert that those who willfully violated our laws and snuck
into the country without permission can secure jurisdiction for their children
against the consent of the nation. As the Left would say, it's "settled law"
that illegal immigrants are considered "at the boundary line and have gained
no legal foothold in the United States", irrespective of where they physically
reside now.

The reality is that there was never a formal decision, much less a piece of
legislation or a court case, mandating automatic citizenship for people who
break into our country. Wong Kim Ark was about those invited in on immigrant
visas. Justice Horace Gray, the author of Wong, referred to "domiciled"
immigrants on twelve occasions in the case. Those promoting citizenship for
illegals conveniently ignore his opinion six years earlier in Nishimura Ekiu
v. United States, 142 U.S. 651 (1892), which clearly held that an alien not
legally domiciled in this country is legally as if he is standing outside our
soil as it relates to even due process rights, much less the right to assert
jurisdiction on behalf of his child.

Bottom line, it would not be that radical of an interpretation for the Court
to rule that the 14th Amendment's birthright citizenship clause does not apply
to illegals. There seems to be substantial SCOTUS precedent for that
position.