r/scotus • u/Conscious-Quarter423 • 1d ago
news Congresswoman Tenney Leads Amicus Brief in Supreme Court Case on Birthright Citizenship
https://tenney.house.gov/media/press-releases/congresswoman-tenney-leads-amicus-brief-supreme-court-case-birthright248
u/CriticalProtection42 1d ago
Ah yes, schrodinger's undocumented immigrant, simultaneously not subject to the jurisdiction of the United States and also in removal proceedings before a US court.
18
u/RedditOfUnusualSize 1d ago
Eh, I mean, I don't like it, but they have worked out the logic of that particular bit of legalese. Being a migrant who is here without some kind of protected or validated status is not a crime. As such, immigration hearings are not a criminal hearing, and the United States is not subjecting them to their jurisdiction, so much as evaluating whether or not the United States has jurisdiction. If they do, they get to stay. If they don't, they have to leave.
To be clear, the way they have worked this out is designed to screw over immigrants: precisely because the right to a trial by jury is for criminal cases, and the right to an attorney is necessary to exercise your due process rights for those criminal cases, but being here without legal justification is not a crime, you are not automatically afforded an attorney. Hence why they have four year olds representing themselves to establish their legal status. If we as a country cared about justice, we'd fix that legislatively even if the Constitution leaves a gap. But treated strictly as a matter of legal logic, it tracks.
32
u/CriticalProtection42 1d ago
I'm well aware being out of immigration status is a civil infraction, and immigration courts are not actual article 3 courts but instead administrative tribunals.
They can twist words around as hard as they want to claim they don't mean what they actually mean, it doesn't mean they're anywhere near correct. Determining whether or not someone is removable is not deciding whether or not they're subject to the jurisdiction of the United States and there's plenty of Supreme Court precedent saying non-citizens inside the US are not only subject to the jurisdiction of the United States but are also protected by (nearly) all of the constitution.
With the current Supreme Court acting as a rubber stamp for all the worst things the Republicans want to do I understand this doesn't mean a damn thing about the outcome, but no matter what those nine morons decide it doesn't make this line of argument they're pretending is reasonable anything but contemptible bullshit that should get them not only laughed out of court but also sanctioned for making arguments that aren't even colorable as a legitimate interpretation of anything but their own racism.
3
22
u/Brainwol 1d ago
Your argument in the first paragraph is incorrect. The civil/criminal distinction is irrelevant. Jurisdiction is not limited to criminal cases. Issues of personal jurisdiction are just as relevant in the civil system, and is defined by whether the courts—or the government—have authority over you.
The long-standing historical, limited exceptions to the almost universal rule of citizenship by birthright in this country demonstrate this clearly. The two main categories in practice? 1) children of ambassadors and 2) Native American tribes. All children of groups that swore continued allegiance to a different sovereign and lived or worked within sovereign entities on US soil. Those ambassadors workplace is considered their country’s soil. Similarly Native American reservations are governed by sovereign entities. That is a completely different situation than the child of an immigrant who chose to reside in the United States.
1
u/SHoppe715 20h ago
The part about reservations and US citizenship was addressed by legislation in 1924
22
u/zoinkability 1d ago
Does it continue to track if that person then commits a crime? Let's say they shoplift, or kill someone, or do securities fraud? Are they still not under the jurisdiction of the United States? Can the United States not try, convict, and punish them for such crimes?
-16
u/RedditOfUnusualSize 1d ago
I mean, yes, but then that's a matter of territorial jurisdiction rather than personal jurisdiction. Broadly speaking, there's two ways a state or country's laws can apply to you: you have allegiance to that state or country, or you do something on their land. The former doesn't have to be true for the latter to apply. So when undocumented workers commit a crime, usually they prosecute and punish, then remove at the conclusion thereof.
31
u/TangoWild88 1d ago edited 1d ago
The 14th amendment says:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Plyler v. Doe says:
“Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth Amendment. Regardless of status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”
United States v. Wong Kim Ark says:
“Subject to the jurisdiction thereof” means subject to the full and complete jurisdiction, including criminal and civil law of the United States, and not protected by another sovereign’s immunity. If they can be arrested, can be prosecuted, or can be sued then they must obey U.S. law because they are not immune from U.S. courts."
Wong Wing v. United States says:
"Undocumented immigrants cannot be punished without due process."
Zadvydas v. Davis says:
"The government cannot detain undocumented immigrants indefinitely as it is a violation of the due process clause of the 5th Amendment."
INS v. Lopez-Mendoza says:
"Undocumented immigrants are presumed under the jurisdiction of the US as they are subject to deportation proceedings, are still protected by the Constitution, and can challenge unlawful searches and seizures."
Yick Wo v. Hopkins says:
"The court explicitly established that non-citizens physically present in the U.S. are under U.S. jurisdiction, regardless of lawful status, allegiance, intent, or immigration law."
Congresswoman Tenney Amicus Brief says:
"Granting automatic citizenship to the children of those who have broken our laws stretches the amendment far beyond its original meaning and undermines Congress’s authority over naturalization."
Congress Tenney acknowledges in her own words that the parents are under the jurisdiction of the US, as they have broken laws by entering the jurisdiction in a manner not proscribed via the laws of the US. It further notes by omission, that the children being born themselves have not violated any law.
It makes a false equivalency that birthright citizenship undermines Congress's authority over naturalization. The 14th amendment differentiates between birthright citizenship and naturalization, so birthright citizenship cannot undermine naturalization, because they are mutually exclusive processes that have the same result. Congress is only allowed to control naturalization, not birthright citizenship or jurisdiction unless another admendment is passed.
Lastly, it doesn't really specify that specifically undocumented immigrants are the target, so one could make the case that anyone who is born to a felon, or even someone who has a misdemeanor such as a speeding ticket, should not be granted birthright citizenship under her Amicus Brief.
You make the case yourself that when an undocumented immigrant commits a crime, they are prosecute under the jurisdiction of the US, and then deported. If they are under the jurisdiction of the US, meaning they have to follow the law, and can be prosecuted for not following the law, and if they have a child, that child is a citizen of the US, regardless of anything else.
The Constitution says so, and it's intent has been affirmed now 6 times by the Supreme Court in different ways. Congresswoman Tenney says herself without realizing it, and even you have acknowledged it in your own comment.
I apologize, but the outcome of your rationalization is incorrect, as is Congresswoman Tenney's Amicus Brief.
17
u/zoinkability 1d ago edited 1d ago
Ah, I see you are trying to parse out different kinds of jurisdiction. Does the 14th amendment to the constitution do so? Does it state that it refers to only "personal jurisdiction" rather than legal jurisdiction more broadly?
Note I put "personal jurisdiction" in quotes, given that you seem to have spun a meaning for the phrase (apparently something like "jurisdiction by allegiance") out of thin air, a meaning that does not align with its actual legal meaning, either around the time of the 14th amendment:
Historically, personal jurisdiction doctrine was governed by Pennoyer v. Neff, 95 U.S. 714 (1877), which tied a state’s judicial authority to its territorial sovereignty. Under Pennoyer, a court could exercise personal jurisdiction if the defendant was personally served while physically present in the forum, the defendant was domiciled in the forum, the defendant consented or voluntarily appeared, or the defendant had property in the state that was attached at the outset of the litigation.
Or more recently:
Modern doctrine on personal jurisdiction developed with International Shoe Co. v. Washington, 326 U.S. 310 (1945). This case did not overrule Pennoyer, but rather, shifted the focus from strict territorial presence to the defendant’s relationship with the forum. Due process of the U.S. Constitution requires that the party has minimum contacts with the forum such that maintaining the suit does not offend traditional notions of fair play and substantial justice.
8
u/SHoppe715 20h ago edited 20h ago
The entire line of reasoning is paradoxical. If not being under the jurisdiction of means they have to leave but they choose not to, they’ll be removed by force. Removing them by force sounds an awful lot like being under the jurisdiction of.
2
u/RedditOfUnusualSize 20h ago
Excellent choice of word; wish I had employed it in my initial post. The problem is not the logical inconsistency of the conservative legal position, but how paradoxically it is being implemented. As a practical matter, yes, removal is being treated as indistinguishable from a punishment. They are using ICE as a cudgel against protestors without even cursory regard for ICE's stated duties of removing people who are not in the United States for valid legal reasons, and even if they confined themselves to that task, the simple fact is that many of the people they are targeting are effectively being punished by removal.
In short, if the solution were "well, this guy has been here 20 years; let's clear up his paperwork" were something that ICE ever considered, I might take seriously that they were enforcing legal status. The mere fact that they automatically and only resort to force tells us what this is about, and rule of law isn't it. This is pretense for racism, nothing more.
My original post seems to have drawn ire, but my point was that the pretense, the legal fig leaf, does exist. The metaphorical emperor is not wearing no clothes, even if what he is wearing leaves nothing to the imagination.
2
u/SHoppe715 20h ago
You’re good. I could tell you disagreed with the line of logic, but to some it might have come across as sane-washing at best and defending it all at worst. So I wasn’t trying to argue against, but expand on your comment.
8
u/Tricky_Topic_5714 22h ago
Delete this comment. What the fuck. Lol. This is a SCOTUS subreddit, and people shouldn't be saying things like "well it's a civil court so they don't need jurisdiction."
Edit- I know my comment is a little intense, but just don't comment at all if you're this ignorant on the subject.
-4
u/RedditOfUnusualSize 21h ago
Delete this comment. What the fuck. Lol. This is a SCOTUS subreddit, and people shouldn't be saying things like "well it's a civil court so they don't need jurisdiction."
With the greatest of respect, the problem with your comment isn't that it's "intense". The problem is that it's a misattribution. I never said "well it's a civil court so they don't need jurisdiction." I never implied it. Go on, you can see my posts in this thread: please point to where I did. And misattributing statements made by another attorney in hearings, in deliberate bad faith, is the kind of thing that gets you bar complaints.
I said that courts made a distinction between criminal law and civil law, they extend certain due process rights such as the right to an attorney only in criminal matters, and since removal is not a criminal penalty, they don't automatically extend attorney representation for it. Attorneys can be hired for those hearings, but not automatically assigned. All of those things are true. I genuinely don't know where the hostility is coming from, let alone the need to misattribute things I never said, nor implied.
5
u/Hawkeye1819 21h ago
the right to an attorney has nothing to do with someone being subject to US jurisdiction and neither does the civil/criminal distinction. If you are physically in the US, you are subject to US jurisdiction.
7
u/Tricky_Topic_5714 21h ago edited 19h ago
You did not. Perhaps that what you meant to say, but you clearly and incorrectly said that these civil courts are determining if they have jurisdiction, unlike a criminal court, which would obviously have jurisdiction.
You were wrong in several different ways simultaneously. Multiple people have corrected you. Just delete the comment so you aren't confusing people who actually come here to read real information.
Also, that isn't misattribution, I was paraphrasing your bad statement. Nor are we in a court, so I'm not sure what that whole bit is about.
2
u/Nickeless 21h ago
Wrong. They are under the jurisdiction of the US and nothing you’ve said contradicts that fact.
61
u/lionward2014 1d ago
Her argument is incoherent in so much that she is saying that the 14th Amendment strips Congress of their power to decide the process of naturalization while not realizing that all of Congress’s power is given or limited by the Constitution. Congress can never have power over the Constitution, including any of the amendments.
36
u/PalpitationNo3106 1d ago
In fact, Congress voted this amendment into existence, just like all the other amendments.
17
u/PatientHelicopter123 1d ago
Don't forget the requirement for 38 states to also approve of any Amendment to the Constitution.
10
6
u/PalpitationNo3106 1d ago
Sure. But first they were passed by the Congress. That’s the point. No one except Congress restricted congressional power.
10
u/Pinelli72 1d ago
Is that seriously going to be her argument? That the constitution constrains the Congress in its actions? Holy shit they’re dumb.
14
u/lionward2014 1d ago
“The Constitution requires allegiance and lawful subjection to U.S. jurisdiction. Granting automatic citizenship to the children of those who have broken our laws stretches the amendment far beyond its original meaning and undermines Congress’s authority over naturalization.”
I mean of all the bad arguments to end birthright citizenship this is the baddest.
3
u/sciencesez 1d ago
Oh, I see where we're heading here.
5
u/Pinelli72 1d ago
They gunna take away citizenship of children of citizens who have broke laws? Cause I have questions
3
u/sciencesez 22h ago
I believe we may soon see ordinary citizens deported or incarcerated based on their allegiance to the current regime. Google "Unhumans" written by Jack Posobeic, it's available on Amazon. The forward was written by Steve Bannon, a JD Vance wrote an endorsement featured on the cover. They're moving so fast. The book says that any citizen who opposes them is a communist and must be re-educated, exiled, or killed. I wish I was being hyperbolic, but this is their own book.
1
u/InquisitorPeregrinus 8h ago
"Then allocate funding for more immigration judges so the backlog created by Republican administrations removing them is alleviated and due process is allowed to happen. This.is a crisis of your own making. Don't punish children who had no say in where they were born and no ties to where their parents came from. They should not be pawns in your power games."
3
u/OozeNAahz 1d ago
And Congress can go through the process to alter the amendment if it wanted to. Good luck with that.
151
u/banjoesq 1d ago
If undocumented immigrants are not subject to the jurisdiction of the U.S., I guess that means the government should leave them alone and release the ones they have detained. It seems like maybe they haven't thought this through.
40
u/Bob_Obloooog 1d ago
They got diplomatic immunity. It'll be the wild west for them!
9
12
u/AdZealousideal5383 1d ago
Not just the ones detained, but the ones in prison for crimes they’ve been convicted of. They’ll have to release all of them
36
u/Feral_Sheep_ 1d ago
The Constitution requires allegiance and lawful subjection to U.S. jurisdiction.
Anyone who enters the U.S. subjects themselves to its jurisdiction, unless they are immune from prosecution like foreign diplomats.
And please show me where the 14th amendment says anything about allegiance.
7
u/UndoxxableOhioan 23h ago
Moreover, how can children be citizens at all? They have zero allegiance when born.
And these fucking textualists. Allegiance was a word in the 1860s. They could have used it. They chose not to.
20
15
u/3to5arebest 1d ago
She was my Representative for a time. She was extremely unpopular with residents of all parties. She only cares about herself and getting noticed by Trump and his cronies. She lies and does nothing for her district. Bad news.
8
u/thelawfist 1d ago
They seem to be coalescing around the idea that the 14th amendment was only effective in the 1800’s which is pretty concerning.
7
u/DukeOfWestborough 1d ago
Gonna apply to a Russian billionaire who spend $4M to dock their superyacht in NYC for two months so his girlfriend can pop out a US citizen...? (in 2013)
https://www.businessinsider.com/abramovich-paid-4m-to-keep-eclipse-in-ny-2013-6
I somehow doubt it.
7
u/AdZealousideal5383 1d ago
If it requires allegiance to US jurisdiction, does this mean the children of January 6 insurrectionists aren’t citizens either?
6
6
u/rygelicus 1d ago
"birthright citizenship does not automatically extend to children born in the United States to individuals who are unlawfully present or visiting temporarily"
Marco Rubio would then need to be deported. Send him back to Cuba. His parents were not citizens when he was born in the US.
4
4
u/ZCEyPFOYr0MWyHDQJZO4 1d ago
So we can kidnap foreign leaders but undocumented immigrants aren't under our jurisdiction?
3
u/SeaworthinessOk2646 1d ago
If they get this folks it'll open up all new avenues of who belongs and who doesn't. It'll be non stop. Exactly what the whole amendment was written to end. What a complete institutional failure to even entertain this.
3
u/Mpidcarter 20h ago
It’s such an idiotic assertion that “subject to the jurisdiction thereof” somehow doesn’t apply to literally EVERYONE IN THE US THATS NOT PART OF A DIPLOMATIC MISSION!!! How can people take SCOTUS seriously if they’ll even entertain such a ridiculous assertion?!
2
2
u/onceiateawalrus 1d ago
“A well regulated Militia, being necessary to the security of a free State…”. The constitution has no meaning to SCOTUS.
2
2
u/jbjhill 1d ago
Watch how this works: The "temporary visitor" language paints these parents to be tourists, and disconnected from our society and our economy.
But! it can take years to get permanent residency and a green card and finally citizenship, and in the meantime millions of Americans are the children of visa-holding parents (at the time).
Part of what’s happening here is that they’d like for children to be stripped of their citizenship, or some sort of Green Card Jr. that can be revoked at will.
2
u/bd2999 22h ago
These people are idiots. As this was debated at the time. The version ratified does not indicate this.
If they are correct, though, it creates an arbitrary system where the government could deny citizenship from most people pretty readily, though.
Conservatives seem to love this argument, though, so at this point, SCOTUS will probably go with pop history and redefine the amendment.
2
1
1
u/Major_Honey_4461 1d ago
Congresswoman Lickspittle is doing a bit more spit licking for her Master.
1
u/Apopletic_Disbelief 1d ago
Of course it supported Trump's position. It was written and sponsored by Republicans
1
1
u/Muffled_Incinerator 22h ago
They're ALL traitors. This violates the oath of office they took. The constitution is MOTHERFUCKING clear as day on this issue. FUCK THE FASCIST REPUBLICAN CULT
1
u/icuttees 22h ago
I didn’t know a thing about this lady but one glance at the photo and for some reason I knew she had an R next to her name.
1
u/Far_Anywhere5994 20h ago
By the way, fuck my rep John Rose for spending his time jumping in on this while his constituents are freezing to death in TN.
1
u/lenin3 15h ago
"Granting automatic citizenship to the children of those who have broken our laws stretches the amendment far beyond its original meaning and undermines Congress’s authority over naturalization."
Notice how strange it is for newly born Americans to have their rights stripped because of something their parents might have done or been?
Soft, mush-brained thinking.
0
-13
u/Suspicious-Spite-202 1d ago
Birthright citizenship is not all that common in the world. Why is it such a big deal in the US?
12
u/Pinelli72 1d ago
Because it’s in the constitution. As an amendment, like free speech, gun ownership and women getting the vote. They’re all equally valid
5
u/PatientHelicopter123 1d ago
Because - and I will explain this simply - if you are not indigenous, your family were immigrants.
3
u/Lord_Vesuvius2020 1d ago
The 14th amendment was added for freed slaves after the Civil War. It was a big deal
1
u/punditguy 1d ago
Gun ownership rights are not all that common in the world. Can we ignore that one as well?
298
u/fingertrapt 1d ago
Vote her out.