District Court Rules on In-State Tuition, Punts on Birthright Citizenship

By Jon Feere and Jon Feere on September 7, 2012

With the help of the Southern Poverty Law Center (SPLC), five Florida residents born to illegal aliens sued the Florida Commissioner of Education as well as the chancellor of the state's university system over a statute that denied in-state tuition rates to dependents (as defined under federal tax code) who could not prove that their parents had established legal residency in Florida and maintained it for at least a year. Last week the U.S. District Court for the Southern District of Florida held that the plaintiffs are citizens under the 14th Amendment and therefore cannot be denied in-state tuition rates based on their parents' illegal status.

In rendering his decision, Judge Michael Moore noted, with very little analysis, that each of the five plaintiffs was born in Florida to illegal alien parents who have resided in the state for varying lengths of time. The court described each of the plaintiffs as "a U.S. citizen by virtue of birthright". But Judge Moore did not go into detail about why children born to illegal aliens should be considered U.S. citizens under the Constitution. Instead, the judge simply footnoted the assertion about the plaintiffs' citizen status. The three items cited in the footnote — one a paper written by a third-year law student — illustrate the fact that the courts have never adequately addressed the issue of birthright citizenship and that modern rulings that touch on the issue are resting on weak foundations.

The first item cited in the footnote was the text of the Citizenship Clause of the 14th Amendment: "All 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." There was no explanation of why this language should operate to provide U.S.-born children of illegal aliens U.S. citizenship. The key issue is whether such children are "subject to the jurisdiction" of the United States, and that issue was analyzed in a recent Center for Immigration Studies report, which found that the language has no plain meaning and that broad application of the Citizenship Clause may not be warranted. Judge Moore avoided any discussion of this matter despite the fact that it is a critical component of his decision.

The second item cited in the footnote is the 1898 Supreme Court case, United States v. Wong Kim Ark. Judge Moore chose to cite language from the case that simply reiterated language from the 14th Amendment, as well as this language: "But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution." This tautological footnote does not get at the issue of what it means to be subject to the jurisdiction of the United States under the Citizenship Clause. Furthermore, a closer reading of the Wong Kim Ark case reveals that Wong Kim Ark was born in the United States to legal resident Chinese immigrants, not illegal aliens. The Supreme Court was careful to note that the child's parents had "a permanent domicile and residence in the United States", something that cannot be said of the parents in the tuition case.

The third item cited is a 2011 law review article written by a third-year law student (who presumably has since graduated). Judge Moore cited the article for the purpose of explaining the concept of jus soli, or citizenship by "right of soil" where birth on a country's land is sufficient to establish citizenship. A closer reading of the article reveals that the author correctly notes that Wong Kim Ark only applies to children born to permanently domiciled residents. However, the author then claims that this decision has been extended to cover "children born in the United States to undocumented immigrant parents". As evidence for this claim, the author cites a 1939 Supreme Court case, Perkins v. Elg. That case involved the citizenship status of a person born to Swedish parents who had been naturalized in the United States prior to the birth. It is difficult to see how these parents could be said to be similarly situated to illegal aliens. The Court in that case did cite a number of memoranda from various agencies, but none appear to support the concept of granting automatic citizenship to children born to aliens who have entered the U.S. clandestinely. To her credit, the law student did admit that the birthright citizenship issue "remains contested" and that many lawyers and politicians continue to work to clarify the proper scope of the Citizenship Clause.

The District Court in the Florida tuition case unfortunately glossed over a complicated issue that is deserving of greater judicial inquiry.