Originally Posted by HM2Viking
The Supreme Court explicitly expanded the 14th amendment in Wong Kim ARK and ruled that being born on American soil makes you an American citizen even if your biological parents are ineligible for citizenship and that government cannot use this as a reason to deny citizenship. The court has revisited this issue on several occasions and not reversed itself. Bottom line of the ruling is that US citizenship through birth in the US is a constitutional right. The UN declaration of human rights of which our government is a signatory also establishes that all people have a right to a nationality. Any attempt of congress to redefine citizenship issues would be subject to court challenge and ruled as unconstitutional by the courts. (Arguably there would also be due process violations, cruel and unusual punishment arguments as well as a violation of the Ninth and Tenth Amendment issues relating to reserved rights of the people.)
You keep referring to UN law: the US pointedly adopts the policy that we are not under sovereignty, neither are our laws, to the UN. In any case, the U.S. being a signatory does not bind us with upholding these rules for MEXICAN citizens. And failure under your UN rules would not be an AMERICAN failure, but a MEXICAN failure.
Your assertions that the Court has supremacy on such issues, and that it has already decided such issues on point are both incorrect.
Wong Kim Ark is not on point:
http://en.wikipedia.org/wiki/Fourtee...s_Constitution
In Wong Kim Ark the Court found that a man, born within the United States to Chinese citizens who were lawfully residing here, was a citizen of the United States.
Under Wong Kim ARK, the following persons born in the United States are explicitly citizens:
* Children born to US citizens
*
Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws.
I didn't make that last, bold part up: it's part of the 1898 Wong Kim ARK decision.
Wong Kim Ark did not explicitly decide whether U.S.-born children of illegal immigrants are "subject to the jurisdiction of the United States" (it was not necessary to answer this question since Wong Kim Ark's parents were legally present in the United States at the time of his birth).
http://en.wikipedia.org/wiki/Plyler_v._Doe
The 1982 Plyler v. Doe IS partially on point. And that was a 5-4 decision. There is no ready reassurance that the Court would rule as such today, were Plyler directly revisited, or if the issue of Citizenship of children of illegal aliens born on American soil were visited for the first time, under a lens of Plyler.
"Plyler v. Doe did not explicitly address the question of so-called "anchor babies" born in the United States to illegal immigrant parents; the children dealt with in the case were born outside the U.S. and had entered the country illegally along with their parents."
Plyler applies the concept of 'jurisdiction' for the purposes of providing benefits to illegals, specifically schooling.
Plyler contains the CONCEPT that there be no distinction between legal and illegal when considering 'jurisdiction' for applying benefits, specifically, the benefit of public education. However, Plyler is NOT a case directly on point. Plyler merely asserts, for the purposes of public schooling, that jurisdictional burden is met by location. (It might be true that a supporting footnote of Plyler DOES make the case that Plyler applies to the 14th, but that is the footnoted opinion of one of Plyler's supporting Justices, and NOT part of the actual decision.)
The problem with applying Plyler to the 14th Amendment is that it makes the specific distinctions of the two-fold test, as applied in the 14th Amendment, redundent. So there is no legal crossover or on point case law to suggest that such an application DOES meet the burden of establishing 'jurisdiction' vis a vi the 14th. It is likely, due to the context of the 14th, that the Plyler burden would not rise to the intent of the 14th. In fact, there IS on point case law that refutes that Plyler would be on point: Wong Kim ARK, discussed above, and Elk v. Wilkins, discussed below, both ARE on point to the concept that the two fold test is more then a redundent concept.
A dissenting opinion from the closely decided Plyler:
"[t]he Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem"; and that the majority was overstepping its bounds by seeking "to do Congress' job for it, compensating for congressional inaction".
The inherent concern in Plyler was that, since the Congress had 'failed to do it's job' on this issue, an appropriate remedy WAS Congressional action. Plyler hints that Congressional action WOULD force the Courts to revisit and reconsider the issue.
Under the Supreme Court precedent of Afroyim v. Rusk, loss of U.S. citizenship is possible under the following circumstances:
*
Fraud in the naturalization process. Technically this is not loss of citizenship, but rather a voiding of the purported naturalization and a declaration that the immigrant never was a U.S. citizen.
Attempting to illegally cross to create an 'anchor baby' could well be conceived as fraud in the naturalization process, leading to a revocation of citizenship for such children. THAT is Supreme Court precedent.
http://en.wikipedia.org/wiki/Anchor_baby
"There have been several subsequent cases involving the citizenship status of people born to aliens legally within the United States, but the Supreme Court has never explicitly ruled whether-or-not the Fourteenth Amendment grants children of illegal immigrants automatic citizenship. "
There is legal precedent in both the concepts that mere birth does NOT establish Citizenship AND that Congressional action has supremacy on such decisions: Congress was considered by the Courts to be the appropriate venue to establish the question of the Citizenship of Native Americans whose 'jurisdiction' WAS previously established by the Supreme Court to not meet a burden of mere birth, considering that treaties had made Indian lands their own jurisdictions:
In fact, Indians are Citizens due to a clarifying act of Congress: the Indian Citizenship Act of 1924. This sets the precedent that Congressional action has supremacy, as the 1924 Federal Law is considered to have differently settled the previous 1884 Elk v. Wilkins Supreme Court decision that denied Citizenship due to mere location of birth.
But here is the kicker, and the CONSTITUTIONAL concept that Congress has supremacy in such decisions regarding the 14th:
Section 5 of the 14th Amendment:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Your assertion that the Courts would have supremacy in deciding issues of the 14th Amendment OVER Congress is directly refuted, BY THE 14TH AMENDMENT.
~faith,
Timothy.
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