On January 21, the states of Washington, Oregon, Arizona and Illinois filed their own federal lawsuit, challenging President Donald Trump’s executive order on citizenship. State of Washington v Trump, w.d., 2:25cv-127. Here is the brief that asks for injunctive relief. The case is assigned to U.S. District Court Judge John C. Coughenour, a Reagan appointee.
The Trump side should pull out The Laws of Nations and writings from the founding fathers on this suject.
Hopefully, all these frivolous lawsuits will meet their just demise in court.
As others have said, the term “subject to the jurisdiction thereof” has been interpreted to refer to anyone in the US who is NOT a diplomat. When a diplomat does something illegal by US law, he is NOT prosecuted, but is asked to leave the country. So, if an illegal is NOT subject to the jurisdiction of the US, can he be arrested for ANYTHING? Can we only politely ask him to leave??
Diplomats can be forced, not just asked, to leave. Until they leave, they can have their freedom to move about restricted, which is a form of arrest. That interpretation is illogical and historically wrong.
The way you’re trying to read it, the language would be superfluous since anyone physically present in the country can be arrested. The history and logic of how those words got there shows the intended meaning was “not owing allegiance to any other country.” See the preceding 1866 act, etc.
Tourists can be arrested, just like US citizens visiting whatever country they are visiting. That doesn’t make children born to tourists citizens of whatever country they are born in.
Prisoners of war can be taken during a military invasion, but a POW or enemy combatant soldier giving birth does not make her baby a citizen of the country she is invading or held prisoner in.
Logically, children of illegal invaders and trespassers aren’t more entitled to citizenship of the country where they are a fetus inside an illegal invader/trespasser. They are not like natural born citizens or legal immigrants. The distinction is fundamental to national sovereignty.
The fact that American Indians were not originally considered subject to the jurisdiction illustrates that those words have a meaning other than “potentially subject to arrest.” That meaning was more like “owing allegiance to,” which citizens of other countries (including, at that time, of American Indian tribes) who are in the US temporarily or illegally do not.
The prequel to 14th amendment citizenship was the civil rights act of 1866 which includes the language “…all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
Illegal aliens are subjects of foreign powers, unlike either natural born citizens or legal immigrants. Foreign tourists, temporary residents, diplomats, invading enemy combatants, and (until subsequently changed) members of American Indian nations are all subjects of foreign powers, so their children born in the US are not within the original intent of birthright citizenship.
Natural born citizens, naturalized citizens, and legal permanent residents are not subjects of foreign powers, so their children have birthright citizenship. They remain US subjects even when outside of the US, not foreign subjects, so their children have US birthright citizenship even if born outside the US.
If, however, subjects of the US or subjects of foreign powers were distinguished by physical location at any given moment, even the children of natural born US citizens wouldn’t have birthright citizenship if born abroad – after all, their parents can be arrested by the government of whatever country they’re in, and can’t be arrested by the US government unless and until they return to the US.
Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.
Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth, then the condition of the parents would be entirely irrelevant.
During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country – an issue he would not have raised if Congress were merely reaffirming the common law doctrine – and of course, the question of Indians.
A common mischaracterization of the debates says Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the Fourteenth Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the condition of the parents. However, this is an erroneous conclusion because they were discussing concerns over whether “race” of the parents could play a role. They were not suggesting locality of birth alone was to be the sole requirement of citizenship under the Fourteenth Amendment. Additionally, this discussion appeared before the chief authors, Senators Lyman and Howard, provided the proper intended operation of the language.
Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.
In Steel Co. v. Citizens for a Better Environment (1998) the court said, “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather than assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provide the answer, with Trumbull declaring:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
Trumbull argued Indians could not be subject to the jurisdiction for the reason the United States deals with them through treaties. This is also exactly how the United States deals with aliens from other nations as well; they enter into treaties with other countries to define legal rights of their citizens while within the limits of the United States and vice versa.
Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.’” Sen. Trumbull further restates the goal of the language: “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens…” Note that Trumbull does not say temporarily within our jurisdiction, but “completely within our jurisdiction”.
He of course is talking about the laws of naturalization and consent to expatriation by the immigrant for him to come completely within the jurisdiction of the United States and its laws, i.e., he cannot be a subject of another nation. Without this full and complete jurisdiction, any foreign government can intervene on behalf of their own citizens while they visit or reside within the United States – just as the United States is known to do on behalf of U.S. citizens within other countries.
Sen. Howard introduced the clause as excluding “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
Many mistakes Howard’s above commentary as suggesting he was speaking only of persons who may have been foreigners or alien who belonged to “families of ambassadors or foreign ministers accredited to the Government of the United States.” For one thing, members of families of ambassadors or foreign ministers where never referred to as foreigners or aliens, so these remarks must be read as persons who are foreigners or alien and persons who belong to families of ambassadors or foreign ministers, i.e., he is speaking of three distinct persons rather than making a single distinction centered around ambassadors or foreign ministers.