Come to America to Have your Baby!! - page 3

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  1. by   HM2VikingRN
    from findlaw at http://caselaw.lp.findlaw.com/script...=387&invol=253 :

    afroyim v. rusk, 387 u.s. 253 (1967)

    387 u.s. 253
    held: congress has no power under the constitution to divest a person of his united states citizenship absent his voluntary renunciation thereof. perez v. brownell, supra, overruled. pp. 256-268.
    (a) congress has no express power under the constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by congress before the passage of the fourteenth amendment; and a mature and well-considered dictum in osborn v. bank of the united states, 9 wheat. 738, 827, is to the same effect. pp. 257-261.
    (b) the fourteenth amendment's provision that "all persons born or naturalized in the united states . . . are citizens of the united states . . ." completely controls the status of citizenship and prevents the cancellation of petitioner's citizenship. pp. 262-268.

    the bill was finally defeated. 14 it is in this setting that six years later, in osborn v. bank of the united states, 9 wheat. 738, 827, this court, speaking through chief justice marshall, declared in what appears to be a mature and well-considered dictum that congress, once a person becomes a citizen, cannot deprive him of that status:
    "[the naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. the constitution does not authorize congress to enlarge or abridge those rights. the simple power of the national legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."

    any doubt [color=#005500][387 u.s. 253, 262] as to whether prior to the passage of the fourteenth amendment congress had the power to deprive a person against his will of citizenship once obtained should have been removed by the unequivocal terms of the amendment itself. it provides its own constitutional rule in language calculated completely to control the status of citizenship: "all persons born or naturalized in the united states . . . are citizens of the united states . . . ." there is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the government at any time. rather the amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. once acquired, this fourteenth amendment citizenship was not to be shifted, canceled, or diluted at the will of the federal government, the states, or any other governmental unit.

    further on within afoyim the court gives a brief history of the intent of the 14th amendment’s sponsors in regard to establishing the individuals right to citizenship. (the senate functionally represents the interests of the states and their governments in regards to federal legislation.)

    but the civil rights act of 1866, 14 stat. 27, had already attempted to confer citizenship on all persons born or naturalized in the united states. nevertheless, when the fourteenth amendment passed the house without containing any definition of citizenship, the sponsors of the amendment in the senate insisted on inserting a constitutional definition and grant of citizenship….it was to provide an insuperable obstacle against every governmental effort to strip negroes of their newly acquired citizenship that the first clause was added to the fourteenth amendment. 16 [color=#005500][387 [color=#005500]u.s.[color=#005500] 253, 263] senator howard, who sponsored the amendment in the senate, thus explained the purpose of the clause:
    "it settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the united states. . . . we desired to put this question of citizenship and the rights of citizens . . . under the civil rights bill beyond the legislative power . . . ." cong. globe, 39th cong., 1st sess., 2890, 2896 (1866).

    afoyim also reviewed us vs wong kim ark:
    the court then held 22 that congress could not do anything to abridge or affect his citizenship conferred by the fourteenth amendment. quoting chief justice marshall's well-considered and oft-repeated dictum in osborn to the effect that congress under the power of naturalization has "a power to confer citizenship, not a power to take it away," the court said:
    "congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act . . . of congress . . . [color=#005500][387 u.s. 253, 267] can affect citizenship acquired as a birthright, by virtue of the constitution itself . . . . the fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship." id., at 703.

    the court in summary states:

    our holding we think is the only one that can stand in view of the language and the purpose of the fourteenth amendment, and our construction of that amendment, we believe, comports more nearly than perez with the principles of liberty and equal justice to all that the entire fourteenth amendment was adopted to guarantee. citizenship is no light trifle [387 u.s. 253, 268] to be jeopardized any moment congress decides to do so under the name of one of its general or implied grants of power. in some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world - as a man without a country. citizenship in this nation is a part of a co-operative affair. its citizenry is the country and the country is its citizenry. the very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. we hold that the fourteenth amendment was designed to, and does, protect every citizen of this nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.

    what the court is ultimately saying within this decision is that citizenship from birth is a right of the people of the united states that is beyond the reach of congress to regulate as a result of the fourteenth amendment.
    Last edit by HM2VikingRN on Dec 31, '06
  2. by   ZASHAGALKA
    Quote from HM2Viking
    AFROYIM v. RUSK, 387 U.S. 253 (1967)
    Afroyim isn't at point at all to the concept of birthright citizenship as it involved a naturalized citizen. All Afroyim determines is the concept that generally, once a person becomes a citizen, that cannot be revoked without consent.

    That says NOTHING about determining who is a citizen IN THE FIRST PLACE. THAT is a power delegated in the Constitution to Congress along the framework of birthright PLUS jurisdiction, the two part test.

    And it says NOTHING about denying citizenship obtained by fraud. It can be argued that the attempt to create an 'anchor baby' is an attempt to defraud the citizens of the United States, thereby creating the legal mechanism to deny citizenship to those that have already been granted it through these fraudulent means. This would be a separate test, and could not fall under Afroyim as fraud was not addressed in Afroyim. However, I have conceded in our Colorado Illegal thread that it is a practical impossibility to deny previously granted citizenship. Determining fraudulent intent after the fact would be a high burden on the part of the gov't.

    That says NOTHING about denying citizenship in the first place. Legislation to define jurisdiction would likely affect only FUTURE determination of citizenship. THAT is well within the power of Congress. As I mentioned before, in Plyler, the Supreme Cabal practically begged the Congress to address this issue.

    Another important item of note regarding Afroyim: it was a 5-4 decision in 1967 that reversed a prior decision by the Court that had ruled exactly the other way: that Congress had the right to revoke citizenship. That was the 1958 Perez v. Brownell decision. IF Congress acted on this issue today, not only would Afroyim not be on point, to the extent that it were, there is no assurance that Afroyim could stand a real test of stare decisis, having ITSELF been the mechanism to deny stare decisis in the Perez decision. In other words, although the Cabal generally looks to securing its own previous decisions in future cases, in THIS case, the Cabal could choose to either support its previous decisions in Afroyim, or alternatively, Perez.

    Interestingly, while Afroyim reversed Perez generally, it could be argued that it supported Perez specifically. Perez had indicated to Immigration upon his first re-entry to the U.S. (during WWII) that he was a Mexican national and that could be viewed under the lens of Afroyim as a consenual self-revocation of his U.S. citizenship, especially in light of the fact that he denounced his U.S. citizenship upon entry to the U.S. for the purposes of avoiding WWII Selective Service laws.

    ~faith,
    Timothy.
    Last edit by ZASHAGALKA on Dec 31, '06
  3. by   mercyteapot
    Quote from ZASHAGALKA
    Afroyim isn't at point at all to the concept of birthright citizenship as it involved a naturalized citizen. All Afroyim determines is the concept that generally, once a person becomes a citizen, that cannot be revoked without consent.

    That says NOTHING about determining who is a citizen IN THE FIRST PLACE. THAT is a power delegated in the Constitution to Congress along the framework of birthright PLUS jurisdiction, the two part test.

    And it says NOTHING about denying citizenship obtained by fraud. It can be argued that the attempt to create an 'anchor baby' is an attempt to defraud the citizens of the United States, thereby creating the legal mechanism to deny citizenship to those that have already been granted it through these fraudulent means. This would be a separate test, and could not fall under Afroyim as fraud was not addressed in Afroyim. However, I have conceded in our Colorado Illegal thread that it is a practical impossibility to deny previously granted citizenship. Determining fraudulent intent after the fact would be a high burden on the part of the gov't.

    That says NOTHING about denying citizenship in the first place. Legislation to define jurisdiction would likely affect only FUTURE determination of citizenship. THAT is well within the power of Congress. As I mentioned before, in Plyler, the Supreme Cabal practically begged the Congress to address this issue.

    Another important item of note regarding Afroyim: it was a 5-4 decision in 1967 that reversed a prior decision by the Court that had ruled exactly the other way: that Congress had the right to revoke citizenship. That was the 1958 Perez v. Brownell decision. IF Congress acted on this issue today, not only would Afroyim not be on point, to the extent that it were, there is no assurance that Afroyim could stand a real test of stare decisis, having ITSELF been the mechanism to deny stare decisis in the Perez decision. In other words, although the Cabal generally looks to securing its own previous decisions in future cases, in THIS case, the Cabal could choose to either support its previous decisions in Afroyim, or alternatively, Perez.

    Interestingly, while Afroyim reversed Perez generally, it could be argued that it supported Perez specifically. Perez had indicated to Immigration upon his first re-entry to the U.S. (during WWII) that he was a Mexican national and that could be viewed under the lens of Afroyim as a consenual self-revocation of his U.S. citizenship, especially in light of the fact that he denounced his U.S. citizenship upon entry to the U.S. for the purposes of avoiding WWII Selective Service laws.

    ~faith,
    Timothy.
    Didn't this particular discussion start as a result of a suggestion a poster made about rescinding any citizenship that had been granted during the previous decade, though? The thread has taken so many twists and turns that maybe I missed the start of this, but my understanding was that HM2Viking was responding specifically to the idea that we start rescinding citizenship, which besides being unconstitutional, is such a horrible idea on so many levels it is hard to know where to start.
  4. by   ZASHAGALKA
    Quote from mercyteapot
    Didn't this particular discussion start as a result of a suggestion a poster made about rescinding any citizenship that had been granted during the previous decade, though? The thread has taken so many twists and turns that maybe I missed the start of this, but my understanding was that HM2Viking was responding specifically to the idea that we start rescinding citizenship, which besides being unconstitutional, is such a horrible idea on so many levels it is hard to know where to start.
    No, I believe it started with the concept of prenatal care and anchor babies. I believe the OP was looking at the concept through her own lens of prenatal care.

    But, somebody DID mention early on the concept of revoking citizenship to anchor babies and I DID discuss that in the quote you posted: it might be technically possible because such citizenship could be viewed to be obtained through fraud, but it is a practical impossibility. Future legislation would probably be limited to future status of those not yet born.

    The status of anchor babies generally is directly on point to the title of the thread.

    But technically, if we did go back and re-evalaute citizenship, it would not be RECINDING citizenship, but a proper evaluation of the Constitutional two-fold test to determine citizenship in the first place. It wouldn't be an issue of 'you are no longer a citizen', rather one of 'you were never a citizen in the first place'.

    In any case, no amount of closing the border will suffice so long as there can be a real and defined benefit derived from violating our immigration laws. The most comprehensive step to eliminating illegal immigration is to eliminate the benefits derived from that illegal alien status. And regardless what anybody says, the concept of protecting our domestic security is an absolute Constitutional concept. Viking even directly quotes the Constitutional concept of immigration being limited to those the states shall think 'proper to admit'. Anchor babies do not survive that Constitutional threshold.

    The legal concept at issue is 'fruit of the forbidden tree'. In our legal system, it is generally not permissible to derive benefit from an illegal act. THAT is a founding principle of English Common Law, upon which the Constitution is based.

    ~faith,
    Timothy.
    Last edit by ZASHAGALKA on Dec 31, '06
  5. by   mercyteapot
    Hmmm... I went back and re-read HM2Viking's posts and discovered that yes, this particular part of the discussion began when a poster, not the OP, suggested rescinding citizenship. HM2Viking's posts are directly on topic, while the rebuttals are not. We do not grant citizenship and then yank it away in this country.
  6. by   ZASHAGALKA
    According to the Center for Immigration Studies, in 2002, there were approx 383,000 babies born to parents that violated immigration laws to have their children in the United States. This accounts for 1 in 10 births in the U.S.

    Center for Immigration Studies

    In any case, a 'temporary worker program' would likely aggravate any potential solution to the problem as granting a legal status to temporary immigrants would serve codify the citizenship status of the babies of those temporary workers that give birth. In THAT case, the Supreme Cabal case of Kim Wong Ark WOULD apply and grant said citizenship based on both prongs of the 2-fold test: birthright and jurisdiction to be here.

    ~faith,
    Timothy.
    Last edit by ZASHAGALKA on Dec 31, '06
  7. by   ZASHAGALKA
    Quote from mercyteapot
    Hmmm... I went back and re-read HM2Viking's posts and discovered that yes, this particular part of the discussion began when a poster, not the OP, suggested rescinding citizenship. HM2Viking's posts are directly on topic, while the rebuttals are not. We do not grant citizenship and then yank it away in this country.
    I respectfully disagree that I'm off topic discussing the status of anchor babies in a thread about 'coming to America to have your baby!!'

    I also disagree that I'm somehow not discussing the status of revoking citizenship; I have discussed that in detail. I agree with Viking in the main on that point, but the other issues regarding anchor babies are at issue with the rationale for WHY, as my rationale is different then Viking.

    Viking argues that revoking citizenship is not possible because jus soli, birthright, absolutely confers that citizenship. I argue that while it might not be technically possible to revoke said citizenship, jus soli is not at sole issue to that determination because the Constitution has a 2 fold test, jus soli being only 1 prong of that test. So, I AM directly rebutting Viking's assertions, or at least, the rationale behind them.

    I think a case COULD be made for not revoking, but a retro-active determination denying citizenship status to anchor babies. However, I do agree that possibility is unlikely at best, unpalatable at worst. But a case COULD be made that we never granted such citizenship in the first place. The Constitution doesn't grant such citizenship based on Jus Soli alone and neither the Congress nor the Supreme Cabal have ever directly addressed this issue.

    To date, the determination of citizenship status of babies born to illegals has only been made indirectly by the Executive in gov't policy created by Cabinet level gov't agencies. One thing for sure: the Constitution does NOT grant the Executive as the arbiter of this decision. Once the Congress rules on this issue (it hasn't to date), it would have controlling authority, subject to review by the Supreme Cabal. The Executive's only Constitutionally granted role is the ability to veto the Congress, not the ability to create law absent Congressional input. That default extra-Constitutional creation of law, or at least, policy by the Executive is why these children are considered 'citizens'.

    ~faith,
    Timothy.
    Last edit by ZASHAGALKA on Dec 31, '06
  8. by   Euskadi1946
    Oh God, here we go again!!!!!
  9. by   CJ777
    Quote from prmenrs
    It's only about 13 miles from the TJ border to my hosptal. They sure don't have to fly to get here!!!

    It just seems like the norm to me. I decided a long time ago that it was not MY job to worry about it. If TPTB want to deal w/it, great, if not, oh well, job security!
    HELLO, i JUST WANTED TO SAY i LIKE YOUR RESPONSE. AS NURSES WE REALLY CANNOT BE JUDGEMENTAL. IF WE DO, IF AFFECTS OUR WORK PERFORMANCE. THE PATIENT THEN WILL SUFFER. IT ISN'T WORTH IT TO ME EITHER. I DON'T WORK IN LABOR AND DELIVERY. BUT I AM SURE THERE ARE TIMES THE SITUATION GETS ON A PERSON'S NERVES. ESPECAILLY WHEN YOU ARE THE TAX PAYER PAYING FOR IT. BUT THAT IS WHEN YOU HAVE TO SAY AS YOU DID ABOVE. GOOD ATTITUDE!! HAVE A HAPPY NEW YEAR. :hatparty:
  10. by   fiestynurse
    I have to say that Zashagalka makes some very good arguments and I agree with most of what he is saying. Thank-you - I learned a lot from your posts.
  11. by   OB_RN
    How about those from the Arabic speaking countries??? They come, deliver and go home with thier little American citizen, who will be raised in the middle east, and possibly sent back here as an adult with all the priveleges/ rights of any other US Citizen.
    Am I concerned????
    Oh yes!!!
    Is our govt concerned? Apparently NOT!
  12. by   CJ777
    Quote from fiestynurse
    I have to say that Zashagalka makes some very good arguments and I agree with most of what he is saying. Thank-you - I learned a lot from your posts.
    I hope I didn't come across wrong. I totally agree with Zashagalka. I found his comment as very intelligent and useful information. I have to try (especailly at work) not let it get under my skin. Because it is VERY irritating that our country gets taken advantage of so much. If I went to their country. I would probably be more likely to get shot. Than to get FREE medical care, etc..But I am like Zashagalka. Some of it is of our own doing. Our government needs to tighten some things a bit. I am all about helping our own first. There are bred, born, USA babies /Mothers we need to attend to. Please don't take this wrong. I love children from EVERYWHERE. But sometimes charity should start at home. As I said. Go to the countries these people have come from. See if we are welcomed with open arms. LOL. Not likely. I really enjoy these forums. I feel that everyone has a point that is good. Maybe at times I don't feel as strongly. But almost always they have a very good POINT. Thanks for reading. I don't usaually write so much. It is New Years EVE. I am babysitting. My 10 1/2month old Grandson is sleeping. I am trying to stay up until the NEW YEAR>>>LOL
  13. by   HM2VikingRN
    article 1 section 9 was a limitation of the power of congress to outlaw the practice of slavery. it has nothing to do with the issue of establishing a uniform naturalization process.
    see: crs/lii annotated constitution article i

    powers denied to congress
    general purpose of section 9
    this section of the constitution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of habeas corpus, the enactment of bills of attainder or ex post facto laws,

    interestingly the qualifications for president read:http://www.law.cornell.edu/constitut....html#section1

    no person except a natural born citizen, or a citizen of the united states, at the time of the adoption of this constitution, shall be eligible to the office of president

    this phrasing certainly tends to support the idea that citizenship was seen as a birthright from day one by the framers of the constitution.

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