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Wednesday, March 06, 2024

Birthright Citizenship and Invasion

One implication of the ongoing fight between Texas and the United States over immigration is the constitutional definition of invasion. So far, courts have rejected Texas's argument that the flow of illegal immigrants constitutes an invasion because an invasion involves the use of force and because a contrary view would raise all sorts of problems (such as authorizing Texas to attack Mexico).

I'm interested in this question due to its relationship to birthright citizenship. At common law, there were two exceptions to birthright citizenship. One involved children born here to foreign ambassadors. The other involved children born to enemy soldiers on our territory. Some of the arguments for denying birthright citizenship to children here to illegal immigrants rely on the second exception and say that there is an analogy. The recent cases rejecting the invasion argument make that analogy even more implausible than it already was. It'll matter because--sooner 0r later--the birthright citizenship question will be litigated.

Posted by Gerard Magliocca on March 6, 2024 at 12:31 PM | Permalink


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