Friday, May 05, 2006

Illegal Immigration Debate - employer addiction and the citizenship clause

The Federalist Society recently updated its Five Questions on Illegal Immigration. Amidst the discussion a few interesting thoughts came to mind.

While talking about the futility of enforcing immigration law at the border, Professor John Eastman, from Chapman University School of Law, says this:
"Although there is a portion of the illegal immigrant employment market that operates under the table, the bulk of it is in the open. Employers file withholding tax returns on these illegal employees, and dutifully receive back notices from the Social Security administration that the name and social security numbers do not match. At that point, any argument that the employer was unaware of the illegal status of his employee is gone (if it was ever credible at all), so imposition of significant fines on the employer would actually produce a significant decline in employers willing to use illegal immigrant labor. Dry up the job market, and you dry up the lion’s share of the incentive to illegal immigration."
Suggesting (rightly) that immigration policy may best be enforced by penalizing employers creating the market for illegal immigrants in the first place, Professor Eastman likens (deliberately?) immigration enforcement to drug enforcement. Like the war on drugs, where America creates a market someone is going to supply it. It matters little whether that market is for cheap labor or cheap drugs. America is addicted to both.

The similarity between the two policies, the matrix of federal agencies responsible for enforcing them, and the responsibility of Americans for creating and perpetuating the problem, is compelling. As drug use has been criminalized and prosecuted, Mr. Eastman suggests a more aggressive policing of illegal immigrant use be prosecuted. Dry up the market and you dry up the supply.

The second interesting point is the presumption their children are US citizens based on the citizenship clause of the 14th amendment. Perhaps incorrectly interpreted for over a century:
The Citizenship Clause of the 14th Amendment actually has two components: 1) “All persons born or naturalized in the United States,” and 2) “and subject to the jurisdiction thereof, . . . are citizens of the United States and of the State wherein they reside.” The claim of birthright citizenship is particularly troubling in the context of illegal immigrants, for it permits those who have not followed our law, who have not adopted the United States as their own country and sworn their allegiance to it, to nevertheless demand that the United States confer the privilege of citizenship upon their children (and derivatively upon them as well). The original intent of the 14th Amendment was to mandate that those born on U.S. soil and who were subject to the full and complete, allegiance-owing, can-be-prosecuted-for treason jurisdiction of the United States, would be citizens.
In essence, there can be no citizenship without allegiance. Birthright is insufficient to establish citizenship without subjugation to the laws of the United States of America. Having arrived illegally there first, and perhaps preemptive and primary, birthright is their illegal status. Illegal residents can not become citizens. Since their parents are illegal so are their offspring. Without their parents meeting the criteria for citizenship (which includes entering the county legally) and swearing allegiance to the United States before their native country neither they or their children are eligible for citizenship.

Lastly, there is a correlation made between illegal immigration and our minimum wage laws which is interesting:
One of the reasons there is such a demand for illegal immigrant labor in this country is the draconian regulations imposed on employers who try to hire legal labor. Minimum wage laws render unemployable a good portion of the unskilled labor pool of legal U.S. citizens—just look at the unemployment rates among inner city black youth for confirmation. Do you favor a reduction of the minimum wage laws (or blatant disregard of them, as [some people] do of the immigration laws) in order to help meet the labor demands of the U.S. economy? Mandated benefits, such as those recently imposed by the State of Maryland on Wal-Mart, knock out a good slice of unskilled or low-skilled labor as well. Shall we repeal all those mandates, or just ignore them? How about the numerous laws that make it almost impossible to fire anyone (at least anyone legal) in the workplace? Shall we repeal those laws? Workers compensation laws and the broken tort system also add significantly to the cost of hiring legal workers, providing a strong incentive for hiring illegals. Why don’t we focus our attention on these massive barriers to the competitiveness of American business before toying with permitting such a massive influx of illegal immigrants as is likely to overwhelm our institutions, our security, and our very way of life?
Some may be unconvinced our unskilled labor pool would be willing to do various jobs currently performed by illegal immigrants, but they haven't much of a chance to try, do they? The cost of hiring and firing them combined with the fear of discrimination lawsuits makes illegal workers a deal. No threat there. They won't complain because they'd prefer not to be deported.

Someone is going to pay for health care one way or another. Whether it's Wal-mart or Medicare and hospitals, it gets paid for. In this regard a case for constructing basic nationalized health care for US citizens can be made.


  1. "The Citizenship Clause of the 14th Amendment actually has two components: 1) “All persons born or naturalized in the United States,” and 2) “and subject to the jurisdiction thereof, . . . are citizens of the United States and of the State wherein they reside.”--quoted from Eastman

    The phrase "and subject to the jurisdiction thereof" is enclosed within a pair of commas. And this means that the phrase is "non-restrictive"--it can be omitted without changing the meaning of the main clause--"All persons born or naturalized in the United States ... are citizens of the United States and of the State wherein they reside."

    The Clause can be understood better if it is reduced to the basic subject/predicate/object structure.

    Persons born or naturalized, and subject to, are citizens.

    Clearly the Clause consists of a COMPOUND SUBJECT with the main subject, "persons," omitted rather than stated or repeated for brevity or style in the SECOND, thus:

    (1) Persons born or naturalized
    (2) [Persons] subject to

    This is consistent with how the author treated the COMPOUND OBJECT:

    "citizens of the United States and [citizens] of the State wherein they reside."

    Note that the second object of the compound, "citizens," is also omitted rather than repeated for brevity or style.

    Thus, the Citizenship Clause confers citizenship to TWO categories of persons:

    (1) All persons born or naturalized in the United States
    (2) All persons subject to the jurisdiction thereof (or All persons owing allegiance within the territory over which the United States is sovereign)

  2. You may or may not be focusing too much on the comma.

    Howard Sutherland has written multiple articles on this topic arguing "birthright citizenship" is a constitutional myth, unsupported by purpose or discussion of the drafters of the 14th amendment. Both Weigh Anchor: Enforce Citizenship Clause (8/2001) and Citizen Hamdi (09/2004) provide multiple references to the debate and comments from the drafters as to their intent and the limitations of citizenship.

    I can't argue the grammar with you, but grammar and punctuation, as important as it is, isn't as informative or revealing of the drafters' intentions as their own commentary.

  3. A Washington Post editorial today made an interesting comment:

    "Justice Scalia has long argued that only the texts of statutes matter. The congressional reports and deliberations surrounding their enactment are irrelevant. Indeed, rejection of legislative history is one of the distinctive features of his jurisprudence -- one that makes it particularly rigid. He often writes separately from opinions that cite such history to note his disdain.."

    Which then places far more emphasis on the text of the amendment than the debate that preceded it or commentary and judicial opinions that followed it. In Scalia's mind the interpretation of the comma would be more important than it would in Alito's.

    Is it enough to predict the two may find differently if a 14th Amendment Birthright Citizenship case made it to the supreme court?