The Tulsa Forum by TulsaNow

Here we go again. Senator Shortey submitted SB898 which proposes that children of illegal immigrants not be granted Oklahoma citizenship. If this passes, its only going to more taxpayer dollars when it inevitably gets challenged and defeated.

"Freshman Sen. Ralph Shortey, who wrote the bills, said he disagrees with the current interpretation of the 14th Amendment to the U.S. Constitution that babies born in the U.S. automatically become American citizens."

http://www.kgou.org/index.php?news-management&action=view_news&news_id=2267

http://webserver1.lsb.state.ok.us/WebApplication2/WebForm1.aspx

The Citizenship Clause of the 14th Amendment:
""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."

http://en.wikipedia.org/wiki/Birthright_citizenship_in_the_United_States


This has already been approved by the Judiciary Committee: http://www.oksenate.gov/news/press_releases/press_releases_2011/pr20110215e.html

*Triple facepalm*

Sounds like Sen. Shortey hasn't brushed up on his Constitutional reading.  This is not the "current interpretation".  This is how millions of people became U.S. citizens over the years. 

However, if it does pass, challenges don't really cost taxpayers any extra.  It's attorneys and judges already on government payroll who shepherd challenged legislation through the system.

Conan, that's not quite correct.  It is true that the case is an open-and-shut slam dunk.  But the legislature indulging in this kind of nonsense should not assume that being shot down in federal court is cost-free.  In a Section 1984 civil rights action (deprivation of a constitutional right under color of state law), attorneys fees are typically awarded to the plaintiff if he/she prevails.  The government may play a role in the case as an amicus curae, but the constitution requires someone adversely affected by the bill to be plaintiff (the "case or controversy" clause in Article III). An individual will step forward as a standard bearer. There will be plenty of candidates available.

Also, the time spent by the AG defending this idiocy could better be spent representing the state in cases in which the state or the public official being sued has a colorable defense to the action. Time is money in government as well as in the public sector.  But not in the Oklahoma legislature, it seems.

Fortunately, I doubt that even Scott Pruitt would bother to put up much of a defense. They'd just let it be found unconstitutional and leave it on the books for when Oklahoma secedes and becomes its own third-world country.

How could you possibly interpret the 14th ammendment ANY other way?

As I understand it, the argument is that while the 14th Amendment grants US citizenship, these folks are arguing that it doesn't grant citizenship in a particular state.  A reasonable person would assume that a supposed 'state citizenship' is a subset of national citizenship, but the folks who propose these ideas may not be entirely rational let alone reasonable.  At best, they're pandering to the xenophobes among us, a fairly large group here in Oklahoma.

I though all this was settled when we dropped the Articles of Confederation and adopted the US Constitution, and finalized the supremacy of the Constitution over the several states during the late unpleasantness of 1861-1865.  For those of you who are not history buffs, the Confederate States of American was awarded second place.

But the Union (USA) came in next to last.   ;D

Edit: Add (USA) in an attempt to preclude smart a$$ remarks comments about me being anti-union.

Oklahoma is not the only state doing this.

http://www.ajc.com/news/georgia-politics-elections/states-seek-to-deny-795912.html

Our constitution specifically discusses certain rights which are unique to Oklahoma citizens. I would like to have the time to do some research (real legal research not opinions on the web) on whether the feds can force a state to give children born to illegals rights under its own constitution. I am sure there are substantive/procedural due process and equal protection issues that are implicated.

Not difficult at all if you read all of the words to have meaning.  The issue is: "what is the meaning of the phrase ' and subject to the jurisdiction thereof'"?  The current interpretation, by granting citizenship to anyone born in this country, pretty much ignores those words. The argument is that the words "and subject to the jurisdiction thereof" must have meaning.  There is legislative history suggesting that the words were in fact intended to exclude persons born in the U.S. but who are children of citizens of another country (and therefore subject to the jurisdiction of that other country).

Symbolic legislation is a complete waste of time, there's far more pressing issues facing our state and nation right now than to keep pulling partisan shenanigans.

What legislative history is that?  Besides the ignorance being indulged in by Oklahoma and Georgia.  

The is more than ample judicial history - as well as the amendment itself - that trumps ANY "legislative history" except for that "legislative history" that actually ratified the amendment in the first place.  You know, that 2/3 majority of state legislative history required to ratify any amendment.

This is just another birther BS type moment for Oklahoma.

And Conan, I am sure you cringe when I say it, but I couldn't agree more!

Please direct me to legal authority/legislative history that supports the notion that smuggling pregnant illegal alien women into this country to deliver their babies on U.S. soil was what Congress and our country was thinking when the 14th Amendment was passed.

I cringe every time I read this argument.  It is complete nonsense.

Every single illegal alien is "subject to the jurisdiction of the United States" without exception.  "Jurisdiction" is legal power, and illegal aliens are clearly subject to that power. Otherwise, the government would lack the legal power to prosecute them for crimes they commit or to detain them and deport them when caught. The only aliens not subject to the jurisdiction of the U.S. while within U.S. territory are those covered by diplomatic immunity.  The "subject to the jurisdiction thereof" language was intended to do what it does - exclude children of diplomats posted to the United States from birthright citizenship.  The 14th Amendment means what it says, nothing more and nothing less. The language is so clear and straightforward there is no room for interpretation. 

Ed, if the argument is as you say, the proponents are ignoring the express language of Section 1. Applying the rule to state citizenship requires no implication at all.  It is expressly provided for.



For the meaning of "and subject to the jurisdiction thereof, see my response to someone else's post in this thread.  I left the remaining language for y'all to ponder.  But in answer to Guido's clever argument, the drafters and ratifiers of the 14th Amendment were intelligent people who were easily capable of creating a narrowly focused protection for former slaves. That they chose the broader words they used cannot be disregarded by arguing that they were only trying to deal with former slaves.

Try Black's Law Dictionary. I'm not sure which nutter started the trend of attempting to redefine "jurisdiction," but this 1984 newspeak smile has got to go.

I may be mistaken, but I'm pretty sure that the idea behind the 14th Amendment being passed was so that ANYONE born in the United States was a citizen, regardless of how they got here, rather through immigration or slavery.  Of course, I'm sure that it would never have been dreamed of at the time that a person wishing to be an American citizen would have been denied that because too many had been accepted as such that year from that particular country.

And no one thought about people coming here for the express purpose of exploiting our overly generous access to medicine, good doctors, and other rights of citizenship, including allowing the mother to stay in the country and get on the government dole to support the child.

There are other ways to tighten the noose which would have a real impact.  This is simply some moronic, newly minted state legislator trying to get a star on his door.

If, as the TulsaNow constitutional scholars seem to be claiming, the 14th amendment clearly means that all babies born on US soil are automatically citizens of the US, then what is the meaning of the restrictive language "and subject to the jurisdiction thereof"?  Is it just there for decoration?  If it means nothing more than the Black's Law Dictionary of jurisdiction, it is indeed nothing more than decoration.  An odd approach to constitutional construction.

During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding American Indians who maintain their tribal ties, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." He was supported by other senators, including Reverdy Johnson and Senate Judiciary Committee Chairman Lyman Trumbull.[6] Howard further stated the term jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[6] and that the United States possessed a "full and complete jurisdiction" over the person described in the amendment.[7][8][6]

Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means."

This does not happen. Having a citizen child does not entitle one to stay here. A person under 18 can't even sponsor their parents for a green card, much less citizenship. The parent's application must stand on its own.

After the child is 18, they are subject to the same rules as I would be if I were to sponsor some guy from Qatar with whom I had no familial relationship, including having the income to support whoever it is they sponsor.

Incorrect. 

Immigration lawyers use the legal principal of Jus soli to initiate family reunification provisions outlined in the Immigration and Nationality Act.  Many even advise their clients to return to the US to give birth.  The process is long, but takes less time than the standard citizenship application and approval process. It also gives the child the advantage of American education, healthcare, and opportunity.  I would probably do it too if I lived in Mexico.

While the practice does not allow them to stay in the US after the child is born, it does build the legal foundation that many need to eventually immigrate legally, and provides provisions for them to do so much faster than they could otherwise. 

In many cases birthright citizenship is used not to help the parents to immigrate, but to help siblings gain sponsorship.  US immigration law allows birthright citizens to sponsor siblings starting at age 18.  They actually cannot sponsor their parents until age 21 (W.T.F?).  Some never have any intension of immigrating to the US at all.  Some simply want the opportunity for their children to have a healthy childhood and a good education.

I have an Indian friend who was born here 46 years ago.  His parents spent every dime they had 46 years ago to travel to the US and give birth under a temporary travel visa. They falsified the document indicating that she was not pregnant.  Subie was raised by a foster family and educated here.  He received a scholarship to the University of Michigan and received his Master's degree in business.  He moved back to Mumbai and started his own pharmaceutical company.  This is very common practice, especially in countries with high child mortality rates and poor educational systems.

I like how you say "incorrect," but then go on to back up what I said. Minors can't sponsor immigrants.

How do infants born in the United States owe allegiance to a country that they have never visited? Because of mom and dad's allegiance? That's thin.

Not thin at all.  An infant's entire existence is wrapped up in and entirely dependent upon the allegiences and decisions of the infant's parents.

LOL!  It was the "this does not happen" part.

How exactly is this new U.S. citizen supported then, and why is it few of the mothers return to their home country after giving birth?

Familiar with the term "Anchor Baby"?  Now just what do you suppose that implies?

Dispelling "Anchor Baby" Myths

http://swampland.blogs.time.com/2010/08/11/dispelling-anchor-baby-myths/ (http://swampland.blogs.time.com/2010/08/11/dispelling-anchor-baby-myths/)

It implies stupidity, malice, or ignorance on the part of the person using the term.

As for what happens to the baby, they go home with the parents unless they have family or someone else to take the child.

And Gaspar, it doesn't happen like you said it does. Period. The law doesn't allow for it. Babies cannot, by definition, do anything to help the status of their parents.

Is this proper statistical protocol?  The author "knows" so it becomes fact?

"...so I called Jeff Passel, co-author of the report. He told me that based on the years that the report's underlying data was produced, he knows [/t] that "well over 80%" of the 340,000 births cited in the report happened to women who had been in the U.S. more than one year.

Read more: http://swampland.blogs.time.com/2010/08/11/dispelling-anchor-baby-myths/#ixzz1EL3dlWQj"

I guess it will always be someone's opinion up until the SC gives theirs.

Another opinion:
http://articles.latimes.com/2011/feb/04/local/la-me-0204-tobar-20110204 (http://articles.latimes.com/2011/feb/04/local/la-me-0204-tobar-20110204)

Another:
http://www.politifact.com/truth-o-meter/statements/2010/aug/06/lindsey-graham/illegal-immigrants-anchor-babies-birthright/ (http://www.politifact.com/truth-o-meter/statements/2010/aug/06/lindsey-graham/illegal-immigrants-anchor-babies-birthright/)

Oil Capital starts off with a false argument that reducing the word "jurisdiction" to its legal meaning renders it merely decorative.  Jurisdiction is all about government power and being subject to that power.  Being subject to the coercive power of the government is not mere "decoration."

What about the quotes cited?  Legislative history is only admissible to resolve ambiguity, not to disprove the clear meaning of the statute or law in question.  Since the term "jurisdiction" had a clear meaning in 1868 that has not changed since, the meaning of "subject to the jurisdiction thereof" would not be affected by any number of speeches.  But assuming that there is at least some validity to Oil Capital's concerns, does the reference to Indian tribes have any relevance to illegal immigrants today?

In Elk v. Wilkins, The Supreme Court decided in 1884 that a person born on an Indian reservation within U.S. territory was not entitled to citizenship under the 14th Amendment.  The court focused on the fact that the tribes were distinct entities with which the United States had treaty relations. The court described them as "alien nations" and "distinct political communities." There was some discussion about the allegience the tribal members owed to the tribes. It is important to separate out allegiance from jurisdiction. 

Allegiance is not and has not been an attribute of jursidiction.  It is an atribute of citizenship.  Neither legal nor illegal aliens owe "allegiance" to the United States, but both are subject to laws of the United States or the States. Being subject to the laws of a place is the essence of jurisdiction. On the other hand, if the offspring of one who has no allegiance is to have birthright citizenship, that offspring will owe allegiance. 

More to the point, in 1898 the Supreme Court expressly rejected Oil Capital's argument in United States v. Wong Kim.  In Wong, the Court held that in spite of the fact that Federal law prohibited Chinese nationals from obtaining citizenship via naturalization, the only persons excluded from birthright citizenship were persons born to foreign rulers and diplomats, persons born on foreign ships, and persons born to foreign military forces engaged in hostile occupation of United States territory, along with the previously mentioned exception of members of Indian tribes. The fact that Wong's parents owed allegiance to the Emperor of China was irrelevant, as was the fact that Wong also owed allegiance to the Emperor. 

The Wong opinion contains a long discussion showing beyond any serious contention that birthright citizenship was inherited from English Common Law and recognized from the very earliest days of our Country. The Dred Scott decision limiting birthright citizenship to offspring of parents who were themselves citizens was a departure from previous jurisprudence.  The 14th Amendment restored the status quo. Here's a link to the Wong opinion: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html)

I agree.  I think it's time SCOTUS hears the issue and rules on it so we can put it to bed...for now at least.  So perhaps this isn't such a "bad" thing though I still think the issue as it's being spelled out to deny Oklahoma citizenship is moronic.

Oh and FYI, we were on MSNBC when I was home for lunch.

Will the “Battle of Bull Run” be coming to the BOK in the future to explain in eighth grade terms what Moses was able to do with the ten commandments whereas  a small band of Spaniards was to lay waste to three superior empires? 

Does anyone stop to think we are the aliens who are choking on interpretations of what was the intent of a group of English renegades?

Our constitution has come to where past decisions clutter our thinking, now of such a magnitude that our mental capacity is being effected?         

Another interpretation - if a child is born here to parents with diplomatic immunity, that child and his parents are not subject to the jurisdiction of the United States.  The child would not be a citizen...I think.

How do we prove that a child was born here? 

I don't know..how do we prove you were born here?

All births that are recorded at hospitals or elsewhere, that have certificates of them recorded to the state in which they happened to that states DHS. After that, I think it would become the states responsibility to document the status of the nationality and legal status of the parents.

Or am I just being logical and simplifying, that this will never happen?

On a side note, Arizona is looking at requiring that people with non-life threatening health issues be checked for citizenship before treatment to alieviate ER overcrowding.

http://www.ktar.com/?sid=1385137&nid=509 (http://www.ktar.com/?sid=1385137&nid=509)

The one salient detail I left out on my comment about "us" being on TV.  Of course the usual groups are calling the Ok and Az laws "hateful".

You are a little more left than me, but live in a state where resources are stretched thin due to either a federal or state indifference (apparently more federal) to immigration laws and how that affects state budgets, and have a realistic view of it.  Do you think many people underestimate the burden illegal immigration places on all of us?

Yes I do, only because I live in one of the states affected by illegal immigration, or I guess directly affected. There is so much that is not carried nationally, but is in the media here, and Southern California, and New Mexico, that never sees the light of day in the rest of the media. About five years ago, the former Mrs. was turned away from an emergency room, because they could not take anymore patients, so we spent time going to another ER, when she was suffering from pneumonia. The second time was when she contracted menegitis, and was in the isolation ward while they tried to determine which form it was, and I was informed by the ER doc, that menengitis cases were on the rise because of people coming to the US undocumented and unchecked. There has been a rise in menengitis, TB, and other diseases in the southwest because of the influx of undocumented aliens. When was the last time that TB was a concern?

That sounds suspiciously like the illegal leper scare they were having in Arkansas a couple of years ago.

That is a good question as we have been unable to determine where the president of United States was born up to this day.

Remember the US national shrine (The Alamo) was built by Mexico as a church and is a shrine only because Mexico destroyed all the US defenders.

The arguments are as moot as “The little big Horn and Remember the Alamo are”,

The ironic part is that with limited tools the Great wall was erected some 1400 feet long whereas we have abandoned the short wall between Mexico and the United States presume because of graft, lack of engineering and shortage of funds.       

The machine that was designed either by the creator or nature to produce armies for defense, who’s ability to produce such has been curtailed by the pill as this machine come to a silent shutdown.  The ultimate end we seek will bring defeat within the next decades. The days of which we were superior, regardless of God or nature is on the horizon.       

OK, I know my decoder ring is around here somewhere....

I am sure that you will be provided with a new ring for those who can and will see a new generation of a ghostly protecting army. We are on the razor edge when race becomes an unspeakable issue.  The bill being discussed is a selective racial issue. Stand by because the events  are over 5 centuries old and will not go away and the ring you seek could be knocking on your door on the norrow.   

Wow....

Tell me about it - it's like Yoda joined the Klan.

No, I'm pretty sure that if it was Yoda, I would have a clue of what he was talking about.

I think I'm getting it now:


I needs to get me one o them rings.

There is no question that we are all being fitted for a pig ring in our nose as with the passing of time we will join the hundreds of empires who have come before us allowing our greed to overtake us.
  It was after the war that people were told that the monster to fear was inflation.  Where most countries keep a hold on inflation we allowed it to run wild. When the last television moved its operations to Mexico we said “so what”.
  Then we inflated our phony green backs along with the middle man profit and the major world suddenly had refugees who want to come here to cash in on the glory pot.
   One of the major banks established a pipeline directly to Mexico in   order to transport the phony paper there where the were able to buy our utilities we would have a hard a time doing without.     The swarm of illegal invade to our territory each day is hidden behind being able to take the inflated dollar back to their homeland where they can and do purchase our life blood daily.
   There are some very intelligent men in Washington who are trying to stand guard over try to keep this country in tact.
   Liken unto the Alamo, a church built as a fort today would be considered as “Would a rose by any other name, smell the same”.
   One could think that they taught us a lesson.       

Just trying to clarify for those playing at home...

I am sure that is absolutely NOT what the intent was.  But that is the way things have been interpreted and applied.  And knowing it is still futile and worthless, I agree with the statements related to "subject to the jurisdiction of".  Illegals are pretty much not subject to the jurisdiction of the US, so how can their kids be??  Makes no sense in a  real world, but then most courts don't agree with me anyway.  (Like the court of Kurt Glassco here in town.)

 

Heironymous, if illegals weren't "subject to the jurisdiction" of the United States, they would be immune from arrest and prosecution, just as diplomats are.  Your statement that "illegals are pretty much not subject to the jurisdiction of the US" is completely false in the real world. Illegal immigrants are arrested and prosecuted for crimes under state and federal law every day. Some are deported, some are incarcerated.  How does that happen?  It happens because state and federal courts have personal jurisdiction over them.  With the singular exception of citizens of Indian tribes before the 1920s, the courts have been completely consistent in reading the 14th Amendment exactly as it is written.  The phrase is not ambigious.  Why is this so difficult to understand, and why must we have the same arguments every time a new non-white population moves to the U.S?

If enough people don't like the 14th Amendment, the remedy is to repeal or amend it, not to redefine "subject to the jurisdiction thereof." 

I even tried to "read in" an intent or alternative meaning of that guy's post and failed.

Yeah, I know they are subject to prosecution for illegal acts (except the one that got them here!).

It just always seemed to me that phrase was more related to the idea that they are subjects/citizens of the government where they are legal citizens (as in owing allegiance to).  (And no, I haven't read much on the case law.)  Kind of like if we go to another country, bribe an official for business, we are still subject to US law, even though no act was committed here.  And yeah, I know our law says that if the act is committed elsewhere it is illegal here, so the concept has been formalized.  And still liable in the other country.  Unless it is Equatorial Guinea - then bribery is mandatory, and their law says the government official MUST participate in the bribe.

Here is a big, honking diatribe about it;
http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html

Still seems kind of squirmy.

Are we mixing messages here?

The pregnant woman thing is one that I think the authors of the amendment didn't consider and I don't think there intent was for the US to become an illegal immigrant's baby magnet.

But the amendment has been interpreted as to mean if born here, citizen.  Period.  

Subject to jurisdiction is still a phrase that seems like it has been redefined somewhat over the years.  Kind of like "a well regulated militia" has been massively redefined over the years.

Squirmy.