Amici wish to address a topic
overlooked by all parties: whether Petitioner Yaser Esam Hamdi
is, in fact, a United States citizen under the Citizenship Clause
of the Fourteenth Amendment to the Constitution. Counsel for all
parties have consented to the filing of this brief and letters
of consent have been lodged with the Clerk.1
The Center for American Unity is a national,
non-profit educational organization dedicated to preserving our
historical unity as Americans into the 21st Century. www.cfau.org.
CAU conducts research and monitors developments on a broad range
of economic, domestic, defense and foreign policy issues related
to the social, historical and political matters of the American
nation-state. CAU filed a brief amici curiae in Alexander
v. Sandoval, No. 99-1908 (brief of CAU, 14 Members of Congress
and two other organizations).
Friends of Immigration Law Enforcement (FILE)
is a national group of attorneys, law enforcement officers, legislators,
and others, who work to re-establish the rule of law in the area
of immigration to the United States. See www.fileus.org. FILE also arranges legal help for
Americans who have been victimized or injured by the federal government's failure to enforce immigration
law and publishes position papers on various aspects of immigration.
FILE filed a motion to intervene in this case in the court below,
but no action was taken on its motion.
The National Center for Citizenship and Immigration
is a national, nonprofit organization whose mission is to educate
the American people regarding the principles of American citizenship
and sound immigration policy in order to bring about a better
public understanding of the issues and choices facing the nation
due to open borders and unworkable immigration policies and practices.
www.ncciamerica.org.
Steve King is a Member of Congress, representing
the Fifth Congressional District of Iowa, and is a member of the
House Judiciary Committee and the Constitution and Immigration
Subcommittees. Dana Rohrabacher is a Member of Congress, representing
the 46th District of California, and was the principal
spokesman for California's Proposition 187, a successful ballot
initiative to deny social services to illegal immigrants, which
was later struck down on the basis of the erroneous interpretation
of the Citizenship Clause of Fourteenth Amendment discussed in
this brief. See, P. 23 infra. Lamar Smith is a Member
of Congress, representing the 21st District of Texas,
and is a Member of the Judiciary Committee and the Immigration
Subcommittee. Thomas G. Tancredo is a Member of Congress, representing
the Sixth District of Colorado, and is the Chair of the Congressional
Immigration Reform Caucus. Roscoe Bartlett is a Member of Congress,
representing the Sixth District of Maryland. Michael "Mac" Collins
is a Member of Congress, representing the Eighth District of Georgia,
and is Deputy Majority Whip of the House. Joe L. Barton is a Member
of Congress, representing the Sixth District of Texas, and is
Chairman of the House Committee on Energy and Commerce. John J.
Duncan, Jr., is a Member of Congress, representing the Second
District of Tennessee, and is a former state court judge.
Amici
believe that this Court's recent decisions have weakened or ignored
the jurisdictional requirement in the Citizenship Clause of the
Fourteenth Amendment ("and subject to the jurisdiction thereof").
Amici respectfully request this Court to avoid further
weakening or ignoring the jurisdictional requirement in the Citizenship
Clause in any decision in this case.
PRELIMINARY
STATEMENT
Petitioner Yaser Esam Hamdi ("Hamdi")
was apparently born on September 26, 1980, at Womens' Hospital
in the Parish of East Baton Rouge, Louisiana to Petitioner Esam
Fouad Hamdi and to Nadiah Hussen Fattah, both Saudi citizens.2 Esam Hamdi worked as a
chemical engineer for Saudi Arabia
Basic Industries, Inc. The Hamdis were in the United States on
some form of temporary work visas, and left when Hamdi was still
an infant. Hamdi apparently never returned to the United States.
When questioned after his capture on
the battlefields of Afghanistan, Hamdi told his interrogators
that he was a Saudi citizen. Affidavit of Special Adviser Michael
Mobbs ("Mobbs Decl."), J.A. 61, ¶ 5 (Hamdi identified himself
to the U.S. interrogation team "as a Saudi citizen who had been
born in the United States.").
Although Petitioners flatly assert
that Hamdi is a citizen, Brief for Petitioners, 4 ("Hamdi is an
American citizen by birth. J.A. 10-11."), the Government notes
only that Hamdi is "a presumed citizen." Brief for Respondents
in Opposition to Petition, I, 5 n. 4 ("a presumed American citizen
such as Hamdi"). Hamdi apparently was born in the United States,
but beyond the accident of birth, his circumstances do not seem
to satisfy the phrase "and subject to the jurisdiction thereof"
in the Citizenship Clause of Section 1 of the Fourteenth Amendment
(hereinafter "the jurisdiction requirement").
As discussed in more detail below,
this Court's comments and decisions on the jurisdiction requirement
in recent years have exacerbated the problem of illegal immigration
to this country. In some areas, a huge percentage of births are
to illegal immigrants.3
Yet the problem is not confined to
illegal immigration. Thousands of pregnant women legally come
to the United States each year just to give birth.4 These aliens have no ties
or allegiance to the United States. "Indeed, most are eager to
fly home as soon as they can get the birth certificates and passports
for their newborns." Barbara Demick, "The Baby Registry of Choice,"
The Los Angeles Times, May 25, 2002, A-1, Col. 1 (most
common reason for desiring American birth is to avoid mandatory
Korean military service).
This process might be termed "drive-by
citizenship," and it is a large and growing problem for the United
States: "Thousands of pregnant South Koreans travel to the U.S.
to give birth to American citizens. A mini-industry has been created
to serve them. . . . 'From birth to citizenship,' advertises one
Korean-language Web site (www.birthinusa.com)
that helps women give birth in Los Angeles." Id.
If an alien who is present in the United
States for mere moments during birth can impart citizenship, the
jurisdiction requirement ceases to have effective meaning. "Drive-by
citizenship" conflicts with the concept of citizenship envisioned
by the drafters of the Fourteenth Amendment, and poses significant
challenges to the United States.
While earlier decisions of this Court
reflected that dilemma by seriously considering the jurisdiction
requirement, in recent years this Court's decisions have effectively
nullified the jurisdiction requirement. This case shows the reach
of that nullification.
In the present case, a person with
no allegiance to the United States is "presumed" or declared to
be a citizen "by birth." Pet. Br. 4. Yet, to come within the jurisdiction
requirement, it is not enough that Hamdi was born in Louisiana.
He must also show that he was "subject to the jurisdiction" of
the United States, as that phrase (the jurisdiction requirement)
was meant in the Fourteenth Amendment.
Petitioners themselves note the distinction
between citizen and aliens in their opening brief: "The Court
therefore has taken pains to distinguish between citizens and
enemy aliens in the context of the war powers." Pet. Br. 33. Petitioners
cite Ambach v. Norwick, 441 U.S. 68, 75 (1979) for the
principle that "the status of citizenship was meant to have significance
in the structure of our government. The assumption of that status,
whether by birth or naturalization, denotes an association with
the polity which, in a democratic republic, exercises the powers
of governance." Id.
Oddly, Petitioners note no irony in
the fact that Hamdi himself has absolutely no such association
with the American polity. He never had such an association.
Petitioners' residence was ephemeral,
and neither Hamdi nor his parents demonstrated allegiance to the
United States in any way. Hamdi left the United States as an infant,
never returned, declared himself a citizen of Saudi Arabia, and
engaged in a conflict against the United States and its allied
forces. His actions are inconsistent with any allegiance to the
United States. His actions clearly reject being "subject to the
jurisdiction" of the United States.
If the United States is ever to confront
issues raised by "drive-by citizenship," the decision of this
Court in this case should not further complicate or expand the
issues presented by the jurisdiction requirement. This brief asks
whether, in light of these circumstances, the Court should deem
Hamdi a citizen. Was he ever, asks this brief, "subject to the
jurisdiction" of the United States? This brief also asks the Court
to respect the jurisdiction requirement of the Citizenship Clause
- in its original intention of requiring some allegiance to the
United States - or at least, not to further weaken or ignore it
in any decision in this case.
SUMMARY
OF ARGUMENT
The Citizenship Clause of the Fourteenth
Amendment was added during Senate debate. During the debate, the
authors discussed in great detail their purpose and intentions
in adding the requirement that a person be born, not just in the
United States, but "subject to the jurisdiction thereof." Sen.
Howard, sponsor and author of the Citizenship Clause, when questioned
about the meaning of "jurisdiction," responded that the phrase
was intended to be read as meaning "not owing allegiance to anybody
else." Sen. Trumbull, Chairman of the Judiciary Committee, described
persons who "are not subject to our jurisdiction in the sense
of owing allegiance solely to the United States." Chairman Trumbull
noted that even "partial allegiance if you please, to some other
government" is sufficient to disqualify a person under the jurisdiction
requirement.
For three decades following the adoption
of the Fourteenth Amendment, this Court recognized the jurisdiction
requirement of the Citizenship Clause as including a non-geographical
distinction between those with allegiance and those without. In
The Slaughter House Cases, 83 U.S. (16 Wall.) 36, 73 (1873),
this Court noted that the jurisdiction clause was "intended to
exclude from its operation . . . citizens or subjects of foreign
states born within the United States." In Elk v. Wilkins,
112 U.S. 94, 101 (1884), the Court described the jurisdiction
clause as covering "all persons, white or black, and whether formerly
slaves or not, born or naturalized in the United States, and owing
no allegiance to any alien power."
In United States v. Wong Kim Ark,
169 U.S. 649 (1898), however, Justice Gray wrote an opinion which
eviscerated the jurisdiction requirement. Justice Gray felt that,
once within a national territory, an alien gives up allegiance
to all other governments, at least temporarily. 169 U.S. at 693
(alien's "allegiance to the United States is direct and immediate,
and, although but local and temporary, continuing only so long
as he remains within our territory."). Thus, any alien born within
the United States would automatically gain citizenship without
reference to the jurisdiction requirement.
Yet this analysis of allegiance is
foreign to American history, earlier precedent and logic. Under
that analysis, for example, there would be no need to require
aliens to take an oath of naturalization renouncing all allegiances
to foreign powers. Similarly, the naturalization cases continue
to require some type of "talisman of dedicated attachment" on
the part of an applicant for citizenship. Rogers v. Bellei,
401 U.S. 815, 834 (1971).
Unfortunately, Justice Gray's faulty
analysis of the jurisdiction requirement was cited in later decisions
for the proposition that a child of alien parents "born in the
United States, was a citizen of this country," without further
analysis. INS v. Rios-Pineda, 471 U.S. 444, 446 (1985).
In fact, in Plyler v. Doe, 457 U.S. 202, 211 (1982), the
Court went further, suggesting that the authors of the Citizenship
Clause used the term "jurisdiction" in a "predominantly geographic
sense." Again, the Plyler opinion included no reference
to or use of any allegiance analysis, even though the authors
had made such an analysis central to the Citizenship Clause. The
evisceration of the jurisdiction requirement creates a powerful
magnet for "drive-by citizenship."
The jurisdiction requirement should
be applied in this case. Hamdi has no allegiance or attachment
to the United States. His is a classic case of "drive-by citizenship."
His and his parents' residence was temporary. They remained at
all times subjects of the Saudi government. Neither Hamdi nor
his parents ever demonstrated any intention of remaining in the
United States (and under the terms of their temporary visas, they
could not have). They never acted in a manner consistent with
the "association with the polity" which Petitioners themselves
cite as a requisite of citizenship. Pet. Br. 33, citing Ambach
v. Norwick, 441 U.S. 68, 75 (1979).
How, in these circumstances, can Hamdi
claim the same citizenship rights as a person born "subject to
the complete jurisdiction" of the United States? Hamdi is in the
same position as John Elk, the Native American denied citizenship
in an opinion by Justice Gray for the Court in Elk v. Wilkins.
He may have been born within the territory of the United States,
but he shows no "talismans of dedicated attachment" to this country.
The Court should apply the jurisdiction
requirement in its intended form - including an allegiance requirement
- and determine whether Petitioner Hamdi is, in fact, "an American
citizen by birth."
ARGUMENT
I.
The Jurisdiction Requirement in the First Sentence of Section
One of the Fourteenth Amendment Means Something More Than Just
Geography of Birth:
The jurisdiction requirement of Section
One of the Fourteenth Amendment must mean something. The jurisdiction
requirement was added to the draft of the Fourteenth Amendment
by the Senate after a lengthy and acrimonious debate. Congressional
Globe, May 30, 1866, 39th Congress, 1st Session, pp. 2890-97.
Both contemporary jurisprudence and the authors' expressed statements
indicate that the jurisdiction requirement was to include some
indication of allegiance to the country in addition to the geography
of birth. As a later case described it in the context of naturalization,
the Founders sought some "talisman of dedicated attachment." Rogers
v. Bellei, 401 U.S. 815, 834 (1971), citing, Weedin
v. Chin Bow, 274 U.S. 657, 666-67 (1927).
A.
Allegiance to the United States Was Important to the Authors of
the Fourteenth Amendment:
As early as the Act of Jan. 29, 1795
(1 Stat. 414, c. 20), applicants for naturalization to the new
United States were required to absolutely renounce and abjure
all allegiance to every foreign prince or state, and to support
the Constitution. The English common law theory of absolute and
perpetual allegiance to the Crown from birth was rejected. 8 Ops.
Atty Gen. 139 (1856), 9 Ops. Atty Gen. 356 (1859). Citizenship
thus required some demonstration of allegiance to
the United States.
The drafters of the Fourteenth Amendment,
and the earlier Civil Rights Act of 1866 (14 Stat. 27, c. 31),
were well aware of this difference between the old English system
of permanent allegiance by birth and the new American system of
some form of allegiance by choice and consent. "It is perfectly
clear that the mere fact that a man is born in the country has
not heretofore entitled him to the right to exercise political
power." Congressional Globe,
supra, 2890 (Sen. Cowan).
On May 30, 1866, on the floor of the
Senate, Senator Jacob Merritt Howard of Michigan proposed an amendment
to the Fourteenth Amendment resolution passed by the House of
Representatives. Id., 2890. The amendment, ultimately enacted
without change as the first sentence of Section One of the Fourteenth
Amendment, read: "All persons born in the United States, and subject
to the jurisdiction thereof, are citizens of the United States
and of the States wherein they reside." Id.
Sen. Howard said that "this will not,
of course, include persons born in the United States who are foreigners,
aliens, who belong to the families of ambassadors or foreign ministers
accredited to the Government of the United States, but will include
every other class of persons."5 Id.
Sen. James Doolittle of Wisconsin proposed
an amendment to Howard's amendment to add language to exclude
"Indians not taxed." Id. Sen. Edgar Cowan of Pennsylvania
asked questions about the definition of citizen:
If
[the children of Chinese immigrants in California and Gypsies
in Pennsylvania are citizens], what rights do they have? Have
they more rights than a sojourner in the United States? If
a traveler comes here from Ethiopia, from Australia, or from Great
Britain, he is entitled, to a certain extent, to the protection
of the laws. . . . He has a right to the protection of the laws;
but he is not a citizen in the ordinary acceptation of the word."
Id.
(Emphasis added).
Sen. Cowan noted that he had been unable
to get answers to his questions, either from his discussions about
the Fourteenth Amendment, or from decisions of the Supreme Court.
Id. Cowan read prior law as permitting States to describe
certain rights of "aliens and others who acknowledge no allegiance,
either to the State or the General Government."Id. Cowan
asked for clarification of rights: "Or is it only that he is entitled
as a sojourner to the protection of the laws while he is within
and under the jurisdiction of the courts?" Id., 2891.
Sen. John Conness of California, himself
an immigrant from Ireland, responded to Sen. Cowan's questions
by declaring that his intention was to "declare children of all
parentage whatever, born in California, should be regarded as
citizens of the United States." Id. There followed discussion
of the need for language excluding "Indians not taxed" from the
language.
Finally, Sen. Lyman Trumbull of Illinois,
the Chairman of the Judiciary Committee and a member of the Committee
of Fifteen which drafted the Fourteenth Amendment, stepped forward
to explain the jurisdiction requirement:
The
provision is, that 'all persons born in the United States, and
subject to the jurisdiction thereof, are citizens.' That means
'subject to the complete jurisdiction thereof.' . . . What do
we mean by 'subject to the jurisdiction of the United States?'
Not owing allegiance to anybody else. That is what it means.
Can you sue a Navajoe [sic] Indian in court? Are they in
any sense subject to the complete jurisdiction of the United States?
By no means. We make treaties with them, and therefore they are
not subject to our jurisdiction. If they were, we would not make
treaties with them."
Id.
(emphasis added).
Chairman Trumbull continued: "It cannot
be said of any Indian who owes allegiance, partial allegiance
if you please, to some other government that he is 'subject to
the jurisdiction of the United States.'" Id. (emphasis
added). Trumbull thought Sen. Doolittle's amendment
regarding "Indians not taxed" was unnecessary. Id.
Sen. Reverdy Johnson of Maryland, the
lone Democrat participating in the debate, then spoke up to support
Doolittle's amendment as a clarification. "Now all this amendment
provides is, that all persons born in the United States and
not subject to some foreign Power - for that, no doubt, is
the meaning of the committee who have brought the matter before
- shall be considered as citizens of the United States." Id.
(emphasis added). Johnson suggested that Doolittle's amendment
would do no harm if it were adopted, id., and pointed out
that the language of the recently-passed civil rights bill had
"the same provision"6 in it. Id., 2894.
I
read now from the civil rights bill as it passed: 'That all persons
born in the United States and not subject to any foreign Power,
excluding Indians not taxed, are hereby declared to be citizens.'
What did these words mean? They meant something; and their meaning
as they are inserted in that act is the same meaning which will
be given to them if they are inserted in the first section of
this constitutional amendment.
Id.
In further remarks, Chairman Trumbull
repeated his description of "Indians being subject to our jurisdiction.
They are not subject to our jurisdiction in the sense of owing
allegiance solely to the United States." Id. (emphasis
added). Reminded that Supreme Court decisions treated Indians
as "subjects" and not as citizens, Trumbull replied: "In some
sense they are regarded as within the territorial boundaries of
the United States, but I do not think they are subject to the
jurisdiction of the United States in any legitimate sense; certainly
not in the sense that the language is used here." Id.
After more discussion, Sen. Howard,
the author of the original amendment, said:
I
concur entirely with the honorable Senator from Illinois, in holding
that the word 'jurisdiction,' as here employed, ought to be construed
so as to imply a full and complete jurisdiction on the part of
the United States, coextensive in all respects with the constitutional
power of the United States, . . . . that is to say, the same jurisdiction
in extent and quality as applies to every citizen of the United
States now.
Id.
Sen. Howard summed up the debate by
saying:
In
one sense, all persons born within the geographical limits of
the United states are subject to the jurisdiction of the United
States, but they are not subject to the jurisdiction of the United
States in every sense. Take the child of an ambassador. In one
sense, that child born in the United States is subject to the
jurisdiction of the United States, because if that child commits
the crime of murder, or commits any other crime against the laws
of the country, to a certain extent he is subject to the jurisdiction
of the United States, but not in every respect; and so with these
Indians. . . . I understand the words here 'subject to the jurisdiction
of the United States,' to mean fully and completely subject to
the jurisdiction of the United States.
Id.,
2897.
The Senate then rejected Sen. Doolittle's
amendment on Indians by a recorded vote, and passed the amendment
to the proposed Fourteenth Amendment on a voice vote. Id.
Certain lessons can be drawn from this
debate. The authors of the Fourteenth Amendment did not want to
grant citizenship to every person born in the United States. They
wanted to grant citizenship only to persons born here who were
also "subject to the jurisdiction" of the United States. They
understood that phrase to be the same as the phrase "and not subject
to any foreign Power," used in the recent civil rights bill. And
by "subject to the jurisdiction," they meant "subject to the jurisdiction
of the United States in every sense," and "[n]ot owing allegiance
to anybody else." Even "partial allegiance" was sufficient to
demonstrate that a person was not subject to the "complete jurisdiction"
of the United States.
The authors made a distinction between
those within the jurisdiction of the United States and "a sojourner
in the United States," or "a traveler [who] comes here from Ethiopia,
from Australia, or from Great Britain." In other words, the authors
of the jurisdiction requirement were concerned about "drive-by
citizenship" and thought that the jurisdiction requirement would
exclude persons who had even a "partial allegiance" to another
government.
B.
This Court's Initial Applications of the Jurisdiction Requirement
Reflected the Authors' Intentions:
For three decades following the Senate
debate noted above, this Court recognized the jurisdiction requirement
as including a non-geographical distinction between those with
allegiance and those without. In The Slaughter House Cases,
83 U.S. (16 Wall.) 36 (1873), the Court noted that the phrase
"subject to the jurisdiction thereof" was "intended to exclude
from its operation children of ministers, consuls, and citizens
or subjects of foreign states born within the United States."
83 U.S. at 73 (emphasis added).
In Minor v. Happersett, 88 U.S.
162 (1874), the Court said:
At
common-law, with the nomenclature of which the framers of the
Constitution were familiar, it was never doubted that all children
born in a country of parents who were its citizens became themselves,
upon their birth, citizens also. These were natives, or natural-born
citizens, as distinguished from aliens or foreigners. Some authorities
go further and include as citizens children born within the jurisdiction
without reference to the citizenship of their parents. As to
this class there have been doubts, but never as to the first.
88
U.S. at 167-68 (emphasis added).
In Elk v. Wilkins, 112 U.S.
94 (1884), Justice Gray, for the Court, described the jurisdiction
requirement as intended "to put it beyond doubt that all persons,
white or black, and whether formerly slaves or not, born or naturalized
in the United States, and owing no allegiance to any alien
power, should be citizens of the United States." 112 U.S.
at 101 (emphasis added). Justice Gray continued: "The evident
meaning of these last words ["subject to the jurisdiction thereof"]
is, not merely subject in some respect or degree to the jurisdiction
of the United States, but completely subject to their political
jurisdiction, and owing them direct and immediate allegiance."
112 U.S. at 102.
This Court should not, in any decision
in this case, ignore or undermine this clear intent by suggesting
that geography is the sole determinant of citizenship. The Court
should find meaning in the jurisdiction requirement.
II.
Some of This Court's More Recent Interpretations of the Jurisdiction
Requirement Are Inconsistent With American History, Earlier Precedent
and the Explicit Intention of the Authors of the Jurisdiction
Requirement:
Unfortunately, some of this Court's
more recent precedents don't reflect the authors' intentions,
as expressed in the debate described above. In fact, some of this
Court's rulings appear to contradict the authors' intentions,
and make assertions directly opposite to those expressed in the
debate.
The most extensive - and problematic
- discussion of the jurisdiction requirement is in United States
v. Wong Kim Ark, 169 U.S. 649 (1898). In Wong, the
Court considered whether:
"a
child born in the United States, of parents of Chinese descent,
who, at the time of his birth, are subjects of the Emperor of
China, but have a permanent domicil and residence in the United
States, and are there carrying on business, and are not employed
in any diplomatic or official capacity under the Emperor of China,
becomes at the time of his birth a citizen of the United States,
by virtue of the first clause of the Fourteenth Amendment of the
Constitution."
169
U.S. at 653 (emphasis added). The Court, in an opinion by Justice
Gray, held that the child does become a citizen. 169
U.S. at 705.
This result is consistent with the
Senate debate discussed above. As Justice Gray noted in passing,
during the Senate debates on both the civil rights act and the
jurisdiction requirement in the Fourteenth Amendment, the question
of the American-born children of Chinese immigrants was explicitly
discussed and the expressed intention was that these children
would be citizens. 169 U.S. at 697-99, citing Congressional Globe, supra, pp.
498, 573, 574, 2890-92.
A.
Justice Gray's Analysis in Wong Kim Ark Conflicts With
the Authors' Intentions, This Court's Other Decisions, and Logic:
Justice Gray's reasoning, however, was inconsistent with earlier
decisions of this Court, and the intentions expressed clearly
in the Senate debate quoted above. Justice Gray's analysis in
Wong asserts a different understanding of "allegiance"
- the crux of both his and the authors' understanding of "jurisdiction."
To Justice Gray, in Wong, once
within a national territory, an alien gives up all allegiance
to all other governments, at least temporarily. Given the importance
the authors placed on allegiance, this belief is crucial to understanding
the elemental contradiction between Justice Gray's reasoning and
that of the authors of the jurisdiction requirement.
Justice Gray said that an alien's "allegiance
to the United States is direct and immediate, and, although but
local and temporary, continuing only so long as he remains within
our territory. . ." 169
U.S. at 693. This, to Justice Gray, was "complete" jurisdiction:
"it can hardly be denied that an alien is completely subject to
the political jurisdiction of the country in which he resides."
169 U.S. at 694.
Justice Gray's belief in an alien's
allegiance shifting in such a total and complete manner simply
upon entry to the United States, however, is foreign to American
history, this Court's earlier precedents, and logic. Under Justice
Gray's analysis, for example, there would be no reason to require
aliens to take an oath of naturalization renouncing all allegiances
to foreign princes or powers, as had been required since 1795,
and continues today. "I absolutely and entirely renounce and abjure
all allegiance and fidelity to any foreign prince, potentate,
state or sovereignty. . ." 8 U.S.C. § 1448(a)(1) (2001); U.S.
Dept. Of Homeland Sec., Oath of Naturalization,
http://uscis.gov/graphics/aboutus/history/teacher/oath.htm.
The authors of the jurisdiction requirement
apparently believed in a different definition of "complete" jurisdiction
and "allegiance." For example, Indians were thought to be within
the territory of the United States, but not completely subject
to its jurisdiction; this was considered so obvious that it was
sufficient reason to defeat Sen. Doolittle's amendment to explicitly
exclude Indians:
In one sense, all persons born within
the geographical limits of the United states are subject to the
jurisdiction of the United States, but they are not subject to
the jurisdiction of the United States in every sense. Take the
child of an ambassador. In one sense, that child born in the United
States is subject to the jurisdiction of the United States, because
if that child commits the crime of murder, or commits any other
crime against the laws of the country, to a certain extent he
is subject to the jurisdiction of the United States, but not in
every respect; and so with these Indians.
Congressional Globe, supra, at
2897 (Sen. Howard).
To the authors, as expressed by the
amendment's author, Sen. Howard, and the Chairman of the Judiciary
Committee, Sen. Trumbull, "subject to the jurisdiction" of the
United States meant simply that the person did not "ow[e] allegiance,
partial allegiance if you please, to some other government." Id.,
at 2984 (Sen. Trumbull).
In other words, rather than believing
that presence in the United States would immediately and automatically
oust any and all other allegiances to other governments, the authors
of the jurisdiction requirement believed that allegiance to a
foreign government could remain even while an alien was within
the territory of the United States. The remaining allegiance to
a foreign power, even if only "partial," was cognizable in determining
whether someone was "subject to the jurisdiction" of the United
States. If a person retained even some allegiance to another government
while within the United States, the person was not subject to
the "complete jurisdiction" of the United States.
In this Court, naturalization-related
cases, including some which cite Wong, similarly recognize
the continuation of partial allegiance by those residing in the
United States and require some type of residence, allegiance or
permanence on the part of the applicant for citizenship. In Rogers
v. Bellei, 401 U.S. 815, 834 (1971), for example, the Court
noted "the importance of residence in this country as the talisman
of dedicated attachment", citing, Weedin v. Chin Bow,
274 U.S. 657, 666-67 (1927).
Seen in this manner, "partial" allegiance
analysis is not difficult. Persons born of citizens have no such
partial allegiances. Persons on the road to citizenship or otherwise
precluded from immediate citizenship could demonstrate allegiance
through their intentions to join society as best they could. They
have, in other words, "talismans of dedicated attachment." Rogers
v. Bellei, 401 U.S. at 834. Persons who were only temporary
"sojourners" would have more difficulty demonstrating they did
not have at least partial allegiances to another power.
This sort of analysis was recognized
by this Court in Elk v. Wilkins, written by Justice Gray
himself. 112 U.S. 94 (1884). In Elk, John Elk, an Indian
who had forsaken his tribe, sought the right to vote. Elk argued
that he had renounced his allegiance to his tribe. Justice Gray,
for the Court, rejected his claim - on telling grounds:
Though
the plaintiff alleges that he "had fully and completely surrendered
himself to the jurisdiction of the United States," he does not
allege that the United States accepted his surrender, or that
he has ever been naturalized, or taxed, or in any way recognized
or treated as a citizen by the state or by the United States.
112
U.S. at 99.
Even Justice Gray's opinion in Wong
uses these tests as its final foundation. After a very long (though
selective and incomplete) analysis of English common law, Justice
Gray concludes his analysis by reviewing the statement of facts
agreed upon by the parties. Justice Gray emphasized that the Wongs
"ha[d] a permanent domicil and residence in the United States."
169 U.S. at 653. Although they could not have become citizens
under the naturalization laws of the time, the Wongs demonstrated
the allegiance to the United States sought by both Justice Gray
and the authors of the jurisdiction requirement, not by accident
of geography, but by explicit indicators of will and intent: "his
residence has always been in the United States, and not elsewhere,"
169 U.S. at 704; his temporary visits abroad were always made
with the intention of returning to the United States, id.,
he always returned to the United States, id., and neither
he nor his parents ever renounced his citizenship or did anything
to exclude him from citizenship. 169 U.S. at 704-05. These "talismans
of dedicated attachment," Rogers v. Bellei, 401 U.S. at
834, were sufficient to show that Wong Kim Ark had been born subject
to the complete jurisdiction of the United States.
Justice Gray's concern about using
the full jurisdiction requirement was apparent in this passage:
"To hold that the fourteenth amendment of the constitution excludes
from citizenship the children born in the United States of citizens
or subjects of other countries, would be to deny citizenship to
thousands of persons of English, Scotch, Irish, German, or other
European parentage, who have always been considered and treated
as citizens of the United States." 169 U.S. at 694. But as shown
above, this concern is easily ameliorated by something less than
evisceration of the authors' intent to require some form of allegiance;
any other form of demonstration of allegiance would produce the
same result as it did in his own opinion in Wong.
Put simply, in an effort to avoid a
perceived ill effect, Justice Gray swung too broadly in Wong
Kim Ark. In so doing, he cut down the jurisdiction requirement
to something less than its authors and this Court's earlier cases
intended.
B)
The Faulty Wong Analysis Lives On and Exacerbates Other
National Problems:
Nevertheless, Justice Gray's analysis
in Wong lives on. This Court has cited Wong with
approval, but without further analysis. See, e.g., Weedin v.
Chin Bow, 274 U.S. 657, 670 (1927)("The majority in [Wong],
as already said, held that the fundamental principle of the common
law with regard to nationality was birth within the allegiance
of the government and that one born in the United States, although
of a race and of a parentage denied naturalization under the law,
was nevertheless, under the language of the Fourteenth Amendment,
a citizen of the United States by virtue of the jus soli embodied
in the amendment."); Rogers v. Bellei, 401 U.S. 815, 830
(1971)(Citizenship Clause reflects law existing at the time);
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 n.10 (1963)(same).
Other cases have simply asserted that
a child of alien parents "born in the United States, was a citizen
of this country" without further analysis. INS v. Rios-Pineda,
471 U.S. 444, 446 (1985)(child of illegal immigrants from Mexico);
Morrison v. California, 291 U.S. 83, 85 (1933)(child of
parents of Japanese descent).
In Plyler v. Doe, 457 U.S. 202
(1982), however, the majority opinion went further than earlier
cases, by quoting, in a footnote, from Justice Gray's analysis
in Wong and describing the analysis as detailing "the predominantly
geographic sense in which the term 'jurisdiction' was used." 457
U.S. at 211. Yet, as shown supra, the authors of the jurisdiction
requirement did not suggest any "geographic sense" to the term
"jurisdiction;" they were predominantly concerned with allegiance,
since geography was already addressed by birth "in the United
States."
Even the Plyler dicta employed
the same type of "permanence" test used in Wong and cited
in Weedin and Bellei to decide that illegal immigrant
children should not be charged out-of-state educational tuition.
457 U.S. at 218-19 and n. 17 ("This situation raises the specter
of a permanent caste of undocumented resident aliens. . .", citing
"legalization" or amnesty proposals, and quoting the Attorney
General as noting that this "subclass is largely composed of persons
with a permanent attachment to the Nation"). The Plyler
Court noted that the District Court's findings of fact in that
case found that the families there "migrated illegally and - for
all practical purposes - permanently to the United States." 457
U.S. at 207. In footnote 3, the Plyler Court noted
the lower court's distinction
between these "permanent" illegal residents and "those illegal
aliens who entered the country alone . . . and who in many instances
remained in this country for only a short period of time." 457
U.S. at 207 n. 3.
The irony of the Plyler dicta
is that it is more likely to increase the probability of creating
"the specter of a permanent caste of undocumented resident aliens,"
457 U.S. at 418, than to ease it. The actual result of Plyler
is to create or strengthen a magnet for more illegal immigration
to the United States in the hope of obtaining free education and
other welfare benefits. See, n. 4 supra; League
of United Latin American Citizens v. Wilson, 908 F.Supp. 755
(C.D.Cal. 1995) (citing Plyler to strike down ballot initiative
- whose chief spokesman was amicus Cong. Dana Rohrabacher
- to deny social services to illegal immigrants). In the same
way, the net effect of the continuing attack on the jurisdiction
requirement (by deeming a child born in the United States of any
alien to be a citizen without regard to the jurisdiction requirement)
is to encourage more "drive-by citizenship."
The sweeping and imprecise language
used in these decisions, however, perpetuates Justice Gray's flawed
analysis in Wong. The Court should not use similar language
in this case, or otherwise further weaken the jurisdiction requirement
by describing citizenship as being based solely on geography without
reference to the jurisdiction requirement.
III.
Petitioner Hamdi is An Alien Who Has No Allegiance to the United
States and Who Was Not Born "Subject to the Jurisdiction" of the
United States:
Wong Kim Ark demonstrated the "allegiance"
sought by the jurisdiction requirement, through his and his parents'
permanent residence, his actions and his obvious attachment to
this country. On the basis of assertions by the Attorney General
and findings by the lower court of permanence and attachment to
American society, this Court found the same to be true of illegal
immigrant families in Plyler. 457 U.S. at 207, n. 3.
In this case, however, Hamdi has and
can offer no such allegiance or attachment. His and his parents'
residence was temporary. Hamdi remained, at all times, subject
to another government. Neither Hamdi nor his parents ever demonstrated
any intention of remaining in the United States (and, under the
terms of a non-immigrant visa as a visitor for business, they
could not have done so). They never acted in a manner consistent
with attachment to the United States.
Hamdi left the United States as an
infant, never to return. He describes himself as a Saudi citizen.
Ultimately, Hamdi apparently served as an enemy combatant opposed
to the United States and its allied forces.
Hamdi's service in a military force
opposed to the United States is a complete denial of his "imperative
obligations of citizenship, performance of which Congress in the
exercise of its powers may constitutionally exact. One of the
most important of these is to serve the country in time of war
and national emergency." Kennedy v. Mendoza-Martinez, 372
U.S. at 159.
How, in these circumstances, can Hamdi
claim the same citizenship rights as a person who was born "subject
to the complete jurisdiction" of the United States? Hamdi is in
the same position as John Elk: he may have been born within the
territory of the United States, but he shows no "talismans of
dedicated attachment." Bellei, 401 U.S. at 834.
In
this case, Hamdi described himself as a "Saudi citizen." Mobbs
Declaration, J.A. 61, ¶ 5. He and his parents were temporary residents
of the United States, but at all times owing allegiance to the
Kingdom of Saudi Arabia. They were, just as with "Indians not
taxed," subject to a foreign power, owing at least partial allegiance
to a foreign power, and thus not subject to the jurisdiction of
the United States in every way. They were, in short, sojourners,
not subject to the complete jurisdiction of the United States.
Petitioner Hamdi was born in the United
States, but he has not demonstrated that he has fulfilled the
jurisdiction requirement of the Citizenship Clause of the Fourteenth
Amendment. He was not born "subject to the jurisdiction" of the
United States.
Conclusion
Amici therefore respectfully urge the Court to affirm
the decision below.
Barnaby W. Zall
Counsel of Record for Amici Curiae
Weinberg & Jacobs, LLP
11300 Rockville Pike, #1200
Rockville, MD 20852
(301) 468-5500
March
25, 2004
