Government Actions Regarding Naturalization and Immigration:

Naturalization

Legislation: 

- The Naturalization Act of 1790.

- The Naturalization Act of 1802.

- The Naturalization Act of 1804.

- The Naturalization Act of 1855.

- The Expatriation Act of 1868.

- The Expatriation Act of 1907.

- The Nationality Act of 1940.

Executive Actions

- 

Supreme Court Cases

- Dred Scott v. Sandford (1857).

- Perez v. Brownell (1958).

- Trop v. Dulles (1958).

- Afroyim v. Rusk (1967).

Immigration 

Legislation:


- An Act to Encourage Immigration. (1864)

- Page Act of 1875.

- Chinese Exclusion Act of 1882.

- Chinese Exclusion Repeal Act of 1943.

- Immigration and Nationality Act of 1952.

- Immigration and Nationality Act of 1965.

- Immigration Act of 1990.

Executive Actions

- National Origins Formula (1921 - 1965).

- Bracero Program.

- Operation WB.

- Remain in Mexico.



Court Cases

- United States v. Wong Kim Ark.

From GovTrack: A constitutional amendment to reapportion House seats based on citizenship, not residency.

Here's focus on a resolution introduced to change a key component of the Constitution.

- Click here for the article.

Seats in the U.S. House of Representatives are apportioned based on the number of residents of each state. That includes undocumented immigrants, green card holders, and other non-citizens. House Joint Resolution 30, introduced by Rep. Steve King (R-IA4), is a proposed constitutional amendment that would change House apportionment to be based upon citizenship instead of residency.

What the constitutional amendment would do

A 2015 Congressional Research Service report analyzed the effect such a change would produce, using 2013 citizenship figures. Compared to the current numbers, California would lose four House seats, while Texas, Florida, and New York would each lose one. Louisiana, Missouri, Montana, North Carolina, Ohio, Oklahoma, and Virginia would each gain one seat. The total of 435 seats in the House is fixed by a 1929 law.

The report also adds: “Using citizenship status to apportion the seats in the U.S. House of Representatives tends to benefit states with smaller immigrant populations and cost states with larger immigrant populations.” This is likely the real motivation here, as King has also introduced the Birthright Citizenship Act, which would end the policy of automatic citizenship to anybody born on U.S. soil regardless of parental citizenship.

The bill failed in years past, but the tide may turn under Trump

Rep. Candace Miller (R-MI10), who served until this past year, introduced a similar amendment three times before, in 2005, 2007, and 2009. If cosponsors are any indication, the idea actually became less popular by the year, as the amendment received 37 cosponsors, then 31 cosponsors, and 28 cosponsors. The resolutions proposing the amendment never received a vote in the House Judiciary Committee, and no member of Congress introduced it after that — until this year.

But now has the tide turned? The populist election of President Trump and a newly emboldened and more-conservative Republican congressional majority are resulting in new policies taken against non-citizens such as a Muslim refugee ban and withholding federal funding from sanctuary cities.

Judicial challenges to Texas' education funding system

Texas has been front and center - not always in a good way - regarding the constitutionality of education policy.

For consideration:

1973 - San Antonio Independent School District v. Rodriquez.
1981 - Plyler v. Doe.
1991 - Edgewood v Kirby.
2015 - Morath et al v. Texas Taxpayer and Student Fairness Coalition et al.

From Fox News: Judge rules Kansas cannot require citizenship proof to vote

A story from March illustrating the concept of federalism.

- Click here for the article.

A judge said Tuesday that Kansas can't require people to show proof of U.S. citizenship when registering to vote for federal elections at motor vehicle offices.

U.S. District Judge Julie Robinson ruled that the state's proof-of-citizenship requirements likely violate a provision in the National Voter Registration Act that requires only "minimal information" to determine a voter's eligibility. She ordered Kansas to register thousands of voters whose paperwork is on hold because they did not comply with the requirement. But she put her preliminary injunction on hold until May 31 to give the state a chance to appeal.

The state immediately said it would appeal. Unless a higher court halts Robinson's order before the end of the month, it would take effect then, clearing the way for those residents to cast a ballot in the upcoming federal elections.

Robinson wrote that "even if instances of noncitizens voting cause indirect voter disenfranchisement by diluting the votes of citizens, such instances pale in comparison to the number of qualified citizens who have been disenfranchised by this law."

The evidence shows only three instances in Kansas where noncitizens voted in a federal election between 1995 and 2013, and about 14 noncitizens attempted to register during that time. The court noted the "magnitude of harm" caused by 18,372 applicants at motor vehicle offices who were denied registration due to the state's proof-of-citizenship law.

The national outweighs the state law - and the state has not cleared the burden demonstrating a need for the requirement.

One of the concepts covered in the section on federalism is policy diffusion between the states. The push for Voter ID laws, including providing proof of citizenship, have spread throughout many states - mostly those that are controlled by Republicans. The working theory is that Republicans do better when voter turnout is low, and these laws suppress turnout.

For more:

- Ballotpedia: Voter identification laws by state.

And click here for a look at the National Voter Registration Act.

The Citizenship Law of Pericles

I stumbled across this while looking for background info on classical attitudes about the role of a citizen in the a governing system. Pericles is held out to be the most influential of the ancient Athenians and was referred to as the first citizen of Athens. It makes sense then that he would elaborate what qualified as a citizen in Athens and what citizens get that others don't in Athenian society.

- Click here for the source.

In 451 B.C. Pericles introduced one of most striking proposals with his sponsorship of a law stating that henceforth citizenship would be conferred only on children whose mother and father both were Athenians.1Previously, the offspring of Athenian men who married non-Athenian women were granted citizenship. Aristocratic men in particular had tended to marry rich foreign women, as Pericles' own maternal grandfather had done.

Pericles' new law enhanced the status of Athenian mothers and made Athenian citizenship a more exclusive category, definitively setting Athenians off from all others. Not long thereafter, a review of the citizenship rolls was conducted to expel any who had claimed citizenship fraudulently. Together these actions served to limit the number of citizens and thus limit dilution of the advantages which citizenship in Athens' radical democracy conveyed on those included in the citizenry.

Those advantages included, for men, the freedom to participate in politics and juries, to influence decisions that directly affected their lives, to have equal protection under the law, and to own land and houses in Athenian territory. Citizen women2 had less rights because they were excluded from politics, had to have a male legal guardian3(kurios), who, for example, spoke for them in court, and were not legally entitled to make large financial transactions on their own. They could, however, control property and have their financial interests protected in law suits. Like men, they were entitled to the protection of the law regardless of their wealth.

Both female and male citizens experienced the advantage of belonging to a city-state that was enjoying unparalleled material prosperity. Citizens clearly saw themselves as the elite residents of Athens.

I put the last sentence in bold for effect.

For more on Pericles.
- Wikipedia: Pericles.
- Plutarch: The Life of Pericles.

Texas is refusing to grant birth certificates to the children of illegal immigrants . . .

. . . and this will almost certainly be the next fight between Texas and the national government. Something else you can lay at the feet of the 14th Amendment. It also highlights conflicts between counties in the state and the state government.

For detail on the overall story click here:

- Children of Immigrants Denied Citizenship.
- Lawsuit: U.S. Citizen Children Denied Birth Certificates in Texas.

For background on the process since the lawsuit click on these. They are in roughly chronological order, elaboration to follow:

May 26 - Serna v Texas Department of Health Services filed.
July 22 - State Seeks to Dismiss Lawsuit Over Birth Certificates.
July 22 - Motion for dismissal filed.
July 23 - Texas Fights Suit After Denying Birth Certificates To Children Of Illegal Immigrants.

July 29 - Legal Experts Question State's Immunity Claim.
August 5 - Dallas County Drawn Into Birth Certificate Debate.
August 6 - County Judge Asks State to Resolve Birth Certificate Issue. 

August 25 - Mexican Government Files Brief in Birth Certificate Case.
September 3 - Judge Will Hear Birth Certificate Case Next Month.
October 2 - Judge Presses State on Birth Certificate Denials.
October 16 - Judge Denies Emergency Relief in Birth Certificate Case.

Introducing The Birthright Citizenship Act of 2015

Before too long we will be looking at Congress and the bill making process. When we do, we'll notice that the Constitution says very little about how bills become laws, so the process has changed over time. We will also point out that the cumbersome nature of the process makes it very difficult for bills to actually become laws. Most get bogged down in committee.

That may or may not be the fate of this law, but it's a good look at how one man proposes to change existing law to cut back on birthright citizenship. This was introduced in the House of Representatives on January 6, 2015 by Steve King who represents the 4th District of Iowa. It was referred to the Judiciary Committee, which then sent it to the Subcommittee on Immigration and Border Security.

- Click here for H.R 140 - The Birthright Citizenship Act.

Here's a description of the bill:

Amends the Immigration and Nationality Act to consider a person born in the United States "subject to the jurisdiction" of the United States for citizenship at birth purposes if the person is born in the United States of parents, one of whom is: (1) a U.S. citizen or national, (2) a lawful permanent resident alien whose residence is in the United States, or (3) an alien performing active service in the U.S. Armed Forces.

States that this Act shall not be construed to affect the citizenship or nationality status of any person born before the date of its enactment.

Since you are probably not familiar with the Immigration and Nationality Act, click here to catch up on it. The purpose of the bill seems to be to change birthright citizenship from being based on Jus Soli to Jus Sanguinis.

If anything happens to it, you'll hear about it here.

If you are really ambitious - here are two books on the history of citizenship

Both are by a man named Derek Heater and can be found on Google Books.

- A Brief History of Citizenship.
- A History of Education for Citizenship.

The last one is obviously related to the subject matter of the opening weeks of the class, so give it a look if you care to.

What does "subject to the jurisdiction thereof" mean?

It's the qualifier in the opening sentence 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.

The Federalist Blog explains what it means.

- Click here for the post.

It's worth reading in full, but this captures the basic argument:

Because the purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue, make contracts, due process, purchase property, etc. Therefore, the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.

The last sentence is the kicker, and it applies to - for example - children born of foreign ambassadors and to members of an invading army. Not only are they not allegiant to the United States, they are not subject to its rules - though that's probably more true of the diplomats. Those who argue that the children of illegal immigrants should not be covered under 14th Amendment raise the question of allegiance, but there still remains the question of whether they are subject to the laws of the state. They are. So that complicates things.

A few facts related to birthright citizenship

As mentioned below, Donald Trump issued a position paper on immigration reform - click here for it - where he calls for, among many other things, and end to "birthright citizenship." Here's the text:

End birthright citizenship. This remains the biggest magnet for illegal immigration. By a 2:1 margin, voters say it’s the wrong policy, including Harry Reid who said “no sane country” would give automatic citizenship to the children of illegal immigrants.

As with most of what Mr. Trump says, its kicked up a dust storm which will apply to a few subjects we will cover in both 2305 and 2306 - anything related to the 14th Amendment really. Just so we know, this is the problematic part of the 14th Amendment - and it just happens to start the thing:

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.

It goes on to require the states to treat people equally before the law, but we will touch on that later this semester. Rather than link to the news stories regarding the controversy, it might be better to be clear about the controversies associated with the it. The Wikipedia on Birthright Citizenship in the United States is worth a look partially because it details what does and does not qualify one to be a citizen of the United States - besides being born in the US to two citizen parents - that's the easy way. The most helpful primer I've found is an NPR piece called 3 Things You Should Know About Birthright Citizenship.

- Click here for it.

It also links to a great piece written by the Congressional Research Service detailing issues associated with birthright citizenship.

- Click here for it.

Some highlights from the story - and things to tuck away for future lectures. I'll post a few related items separately.

1 - There are two types of birthright citizenship: one based on place of birth, one based on the citizenship of the parents. British common law - which governed the colonies - used the former. Meaning that the type if citizenship stated in the 14th Amendment has historical roots.

2 - Until the 14th Amendment, the states determined who was and was not a citizen. The U.S. Constitution mentions, but does not define citizenship, or its requirements. It makes no requirement on the part of the states either and would not until the 14th Amendment.

3 - The 14th Amendment was written to overturn the Dred Scott decision which denied citizenship to African Americans whether slave or free. They were also unable to take cases to court - which kicked Scott's lawsuit to the curb. It is commonly argued to be one of the key precursors to the Civil War.
- Wikipedia: Scott v. Sandford.

4 - The 14th Amendment was ratified in large part to over turn Scott v Sandford. It was ratified in 1868 and is a companion to the 13th and 15th Amendments, which were ratified in 1865 and 1870 respectively. All three significantly expanded the powers of the national government over the states - which is a topic we hit in various parts of both 2305 and 2306. One of these powers involved the national government telling the states who gets to be a citizen. This ties the concept of national citizenship with the concept of state citizenship.
- Wikipedia: Reconstruction Amendments.

5 - The Supreme Court first ruled on the meaning of the 14th Amendment in the case of US v Ark, which applied the language to a man born in San Francisco from Chinese parent, left the country and then was denied the ability to return. The Supreme Court ruled that he was a citizen based on its reading of the language of the amendment and that he had the right to return.
- Wikipedia: United States v. Wong Kim Ark.

6 - Birthright citizenship based on birthplace is very common in the counties of the western hemisphere while blood relationship is generally required in the rest of the world. The argument is that the people that live in the nations of the west are largely immigrant and are based on shared values. Older nations can trace themselves to shared ethnicity.

From the Los Angeles Times: A History of U.S. Citizenship

This was written in 2007, but the key dates for us are covered.

- Click here for the article. 

1776: Declaration of Independence assails King George III for preventing colonies from naturalizing new settlers.

1790: Naturalization reserved for "free white person[s]" with at last two years residence.

1802: Jeffersonian Republicans repeal 14-year residency mandate breifly imposed by rival Federalists.

1848: Treaty ending U.S.-Mexico War guarantees citizenship to Mexican subjects in new territories, including California. Federal courts later cite treaty as removing racial bars to naturalization for Mexican settlers.

1857: Dred Scott decision holds that a "negro" cannot be a citizen.

1868: Fourteenth Amendment grants citizenship to those U.S.-born, cementing status of most blacks but leaving uncertainty on other minorities.

1882: Chinese Exclusion Act bars Chinese from naturalization.

1898: U.S.-born children of foreign nationals guaranteed citizenship, Supreme Court rules, even if immigrant parents are barred.

1906: Safeguards set for naturalization includes ability to speak and understand English.

1931: Repeal of statute stripping women of citizenship if they marry a foreigner racially barred from becoming a citizen.

1940: Birthright citizenship to Native Americans granted.

1944: Then record 442,000 naturalize amid wartime anxiety; 96% are Europeans, 1 in 4 Italian.

1952: Law amended to say citizenship "shall not be denied or abridged because of race or sex," ending 162-year legacy of racial bars.

1996: Record of more than 1.1 million people take citizenship oath; Asians and Latinos top list.

1997: Amid charges that ineligible criminals are being naturalized, federal officials move to strip citizenship of 5,000 immigrants with criminal arrest records.*

What is a citizen anyway?

I'll post a few items on the subject, partially because the purpose of the class is make you better citizens - or citizens to be, or whatever - and partially because "birthright citizenship" is suddenly in the news due to comments made by one of the more flamboyant candidates for the presidency.

Before digging into it, some preliminary info on the subject of citizenship would be helpful.

Here are a handful of definitions - from dictionary.com - of the word "citizen."

- a native or naturalized member of a state or nation who owes allegiance to its government and is entitled to its protection (distinguished from alien).- an inhabitant of a city or town, especially one entitled to its privileges or franchises.- an inhabitant, or denizen: The deer is a citizen of our woods.- a civilian, as distinguished from a soldier, police officer, etc.

And for good measure, here are a few for the word "citizenship."

- the state of being vested with the rights, privileges,and duties of a citizen.- the character of an individual viewed as a member of society; behavior in terms of the duties, obligations,and functions of a citizen: an award for good citizenship.- the fact or status of being a citizen of a particular place- the qualities that a person is expected to have as a responsible member of a community

I suppose a citizen could described as a subset of people who live in a community that have special rights. These seem to be primarily political, meaning that they can vote and hold office, but other political rights - like speech, assembly and the press, are applicable to everyone - as are many other rights.

I'll save it for a separate post to outline these a bit more. When we cover the equal protection clause in 2305 (and to a lesser degree 2306) we'll note that people cannot be treated unequally before the law due to citizenship - and the equal protection clause is not restricted to citizens, but instead applies to persons in a states jurisdiction.

There's much room for interpretation here.

If you feel ambitious, you might want to read through the Wikipedia on the "History of Citizenship."

- Click here for it.

Can Citizenship Be Revoked?

A good question from this afternoon's 2301: Can a USA Citizenship Be Revoked?

I had never thought about this much before, but for various reasons it can. This would help resolve the issues Holder raised a post below - no need to worry about due process rights for the non-citizen enemy combatant, but the person subject to having citizenship revoked would probably have due process rights to challenge it. So the question is, can citizenship rights be revoked without due process? I do not know, but my guess is no.

Anchor Babies and the 14th Amendment

From Slate, an argument that addressing the problem will require a constitutional amendment:

"Anchor babies" are back in the news: Be prepared for another round of railing against the granting of automatic citizenship to the children of illegal immigrants. There was a burst of this last summer, when Sen. Lindsey Graham rumbled about pregnant Mexican women crossing the border to give birth and win American citizenship for their babies—which he inelegantly called "drop and leave"—and how it was necessary to change the Constitution to stop them. Now Rep. Steve King of Iowa promises to end automatic birthright citizenship through legislation, and conservative legislators from five states are talking about excluding kids from a new thing called state citizenship, and also creating distinct (second-class) birth certificates for these kids.
Legally speaking, this is all pretty confusing.

About Birthright Citizenship

There's controversy concerning whether the opening language of the 14th Amendment actually establishes birthright citizenship. Here's the text:

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.
The highlighted text appears to be the tricky part. Are illegal immigrants truly subject to the jurisdiction of the United States? Can they vote and are they subject to a draft, if one were established? The courts have never ruled on this issue -- it took a court ruling to determine that the children of legal immigrants were citizens -- so we simply don't know.

- CRS Report: U.S. Citizenship of Persons Born in the United States to Alien Parents.
- Christian Science Monitor: Is Birthright Citizenship Really in the Constitution?
- Wikipedia: Birthright Citizenship in the United States.
- Wikipedia: Jus Soli.
- Wikipedia: Jus Sanguinis.
-

Proposed Constitutional Amendments

In response to the flurry of suggestions that the birthright citizenship provision of the 14th Amendment ought to be removed, Jonathan Chait lists other Constitutional Amendments "endorsed by mainstrean Republicans."

Some Bits for Today: 7/5/10

- Maryland is one of several states that must periodically decide whether to rewrite it's constitution.

- Debate continues over unemployment benefit extension. See unemployment data from the BLS for background.

- Teachers' union upset with Obama.

- The perks of seniority.

- Conflict between Obama's economic and political advisers.

- Commerce Clause in the news.

- From "subjects" to "citizens."

- Video of the Kagan hearings.

The Terrorist Expatriation Act

In response to the attempted bombing of Times Square, by a recently minted, Pakistani born, American citizen who received bomb making training apparently from the Pakistan Taliban, members of the U.S. House and Senate have proposed legislation that would "revoke American citizenship from people suspected of allying themselves with terrorists."

Senators Lieberman and Brown call theirs the Terrorist Expatriation Act. Jason Altmire and Charlie Dent are introducing the same bill in the House.

Questions are now being raised about the constitutionality of this legislation, and whether it is a good idea.

- PrawfsBlawg argues that it is unconstitutional. For one thing, the decision is not based on a conviction, but rather an accusation.
- Reason Magazine agrees. The law is vague and overbroad.

In all likelihood, the law has been introduced so that Congress appears to be on the ball and responsive to a threat. Members are well aware of the institution's low approval ratings and wants to be seen as being proactive. No word yet on whether this thing is likely to pass.

Riding the Circuits

Early Supreme Court members did it. Here's an argument that they should do it again.

A great point made by Timothy Sandefur:

" . . . one of the biggest reasons the Justices rode circuit was to explain the Constitution and its legal order to regular citizens. In fact, many of the great early Supreme Court pronouncements (like the wonderful Van Horne’s Lessee v. Dorrance are actually not decisions at all, but speeches made by the justices to juries, as part of this civic educational process.) True, the Justices today aren’t exactly John Marshalls or Joseph Storys. But they are the leaders of the legal profession in this country, and it is their duty to explain the constitution and the law to citizens."

Has the court system grown too detached from the citizenry?