Wednesday, August 11, 2010

No Controlling Precedent

These words were immortalized when then-Vice President Al Gore used them as an excuse to exonerate himself from fund-raising shenanigans while he was in the White House, making telephone calls from there. Ever since then, “no controlling precedent” has been shorthand to describe the rationalizing of cutting corners.

But to lawyers, especially constitutional lawyers, the absence of “controlling precedent” means something very different: that courts, preeminently the Supreme Court of the United States, writes on a clean slate; that there is no prior decision which requires the same result in a new case.

This is very important today because of a question just beginning to boil in the public arena: the meaning of six words in Section 1 of the Fourteenth Amendment, which provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” [My emphasis.]

The constitutional question is whether so-called “anchor babies”—children of illegal aliens, overwhelmingly Mexican, reportedly some 60,000 annually in Texas alone—are “subject to the jurisdiction thereof” and thus automatically citizens of the United States.

It is believed—but erroneously—that the Supreme Court has answered this question affirmatively.

It has not, even though many lawyers and commentators believe it has.

They cite to the Supreme Court case of Plyler v. Doe, decided in 1982.

The question of whether the children of illegal aliens were “subject to the jurisdiction” of the United States under Section 1 of the 14th Amendment, and thus citizens, was not even before the Court in the Plyler case.

How do I know?

Because Justice Brennan, author of the majority opinion in Plyer said so:

“The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.” [My emphasis.]

In Brennan’s Opinion’s infamous footnote 10—relied on by the “anchor babies are citizens” crowd—he admitted that the Court had never ruled on the meaning of “subject to the jurisdiction thereof” as it may pertain to the America-born children of illegal aliens.

But a small problem like that wouldn’t stop Brennan. Undeterred by the absence of any precedent, the High Priest of the Living Constitution slipped into his opinion’s footnote 10 the gratuitous statement that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Who asked him?

No “anchor babies” were before the court. The “jurisdiction” question as to them was not before the Court. The Court had, by his own admission, never addressed the question.

This means that constitutionally the “anchor baby-citizenship question is wide open. And a smartly designed statute to define and deny the citizenship status of anchor babies would eventually have to be evaluated by the Supreme Court.

Despite the incompetent, agenda-driven progressives Obama is seating on the High Court, good lawyering might, just might, relieve the American body politic of the heavy, unwanted and constitutionally unnecessary burden of anchor babies— and remove from them the precious American citizenship they do not deserve.