On the Legal Obligations of Illegal Aliens

In my (perpetually-ongoing) research regarding the Fourteenth Amendment’s Citizenship Clause,[1] I came across this interesting tidbit from one of my intellectual antagonists:

[Birthright] citizenship [under the Citizenship Clause] is reserved for those of a sufficient affiliation with the nation, which case law to date has identified as those born to citizens or to immigrants lawfully and permanently residing within the United States. The same as citizens, the latter pay taxes, are subject to military service, and are under a duty of loyalty. These commitments being the case, it is fair that these persons gain birthright citizenship.[2]

Having read the article from which the above is excerpted, I consider his interpretation of the Citizenship Clause to be incorrect, but I won’t get into that now.  What interests me is the italicized portion above, which implies that the three obligations of loyalty, payment of taxes, & liability to military service do not apply to illegal aliens.  Granted, this guy’s an eminent law professor, and I’m a simple layman.  Nevertheless, I’m inclined to think his assertion is incorrect on all counts.

  • On the issue of taxation:  a recent Congressional Research Service report concluded that tax liabilities were just as certain for illegal aliens as for citizens & legal immigrants.[3] As for whether illegal aliens actually pay taxes:  A 2004 Center for Immigration Studies report, while deeming illegal aliens a net drain on federal coffers, nevertheless admitted that “In 2002, illegal households paid a total of nearly $16 billion to the federal government.”[4]
  • On the issue of military service:  The Selective Service, which presumably knows a little about the laws it enforces, apparently thinks “Undocumented (illegal) aliens” are required to register.[5] This is unsurprising, given that neither the Military Selective Service Act,[6] nor President Carter’s proclamation reinstituting draft registration,[7] excludes them.  Were conscription ever reinstituted, illegal aliens’ duty of registration would become a duty of military service.[8]
  • On the issue of loyalty:  Like other foreigners,[9] illegal aliens owe a duty of “local” or “temporary” allegiance while residing in the United States.[10] It follows that they may be tried for treasonous acts which violate that allegiance.[11] If alien enemies, who (like illegal aliens) are subject to summary detention & deportation during times of war,[12] can nonetheless be charged with treason,[13] it stands to reason that illegal aliens would possess similar liabilities.

Of course, these obligations – and probably many others – would disappear if Congress followed the advice of certain people,[14] and granted diplomatic immunity to illegal aliens & their children.


[1] See U.S. Const. amend XIV, § 1, cl. 1 (“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.”).

[2] William Ty Mayton, Birthright Citizenship and the Civic Minimum, 22 GEO. IMMIGR. L.J. 221, 253-254 (2008) (footnotes omitted).  Similar assertions have been made on the floor of Congress.  See, e.g., 153 Cong. Rec. H2287 (daily ed. Mar. 7, 2007) (statement of Rep. Bilray) (“The subject to the jurisdiction clause of the 14th amendment does not only mean that you can be arrested.  It means that you must, according to the common law, be totally obligated.  You must be able to be tried for treason and be forced into the military.”).

[3] See ERIKA LUNDER, FEDERAL TAXATION OF ALIENS WORKING IN THE UNITED STATES AND SELECTED LEGISLATION, at 3 (Congressional Research Service Report for Congress No. RS21732, 2008), available at http://www.club.cc.cmu.edu/pub/wikileaks/wikileaks-crs-reports/RS21732.pdf (“[T]he [Internal Revenue] Code treats [illegal aliens] in the same manner as other foreign nationals – they are subject to federal taxes and classified for tax purposes as either resident or nonresident aliens.”).

[4] See STEVEN A. CAMAROTA, CENTER FOR IMMIGR. STUD., THE HIGH COST OF CHEAP LABOR: ILLEGAL IMMIGRATION AND THE FEDERAL BUDGET 25 (2004) (“In 2002, illegal households paid a total of nearly $16 billion to the federal government.”).

[5] See SELECTIVE SERV. SYSTEM, WHO MUST REGISTER CHART (2009), available at http://www.sss.gov/PDFs/WhoMustRegisterChart.pdf.

[6] See 50 U.S.C. app. § 453(a) (2006) (mandating registration by “every male citizen of the United States, and every other male person residing in the United States, who…is between the ages of eighteen and twenty-six”, and excludes only “any alien lawfully admitted to the United States as a nonimmigrant…for so long as he continues to maintain a lawful nonimmigrant status in the United States.”).

[7] See Proclamation No. 4771, 3 C.F.R. 82 (1980) (requiring registration of “Male citizens of the United States and other males residing in the United States, unless exempted by the Military Selective Service Act, as amended….”).

[8] See 50 U.S.C. app. § 454(a) (2006) (providing that “every person required to register…shall be liable for training and service in the Armed Forces of the United States”).

[9] See, e.g., United States v. Verdugo-Urquidez, 856 F.2d 1214, 1236 (9th Cir. 1988) (“By voluntarily establishing residency within the United States, whether temporarily or permanently, aliens owe a local and temporary allegiance to the United States during the period of their residency.”), rev’d on other grounds, 494 U.S. 259 (1990); Fletes-Mora v. Rogers, 160 F. Supp. 215, 218 (S.D. Cal. 1958) (“Our law has long recognized an alien’s obligation of ‘temporary allegiance’ to a country while he is within its territory. The term ‘temporary allegiance’ refers to the alien’s duty to obey all laws of a country not immediately relating to citizenship so long as he remains in that country.”); Naito v. Acheson, 106 F. Supp. 770, 774 (S.D. Cal. 1952) (“Even a visitor to a foreign country owes temporary allegiance to the sovereign, while within his territories, as a consequence of his presence in such foreign country.”); Ashkir v. United States, 46 Fed. Cl. 438, 441 (2000) (“[T]he benefits of the compact also redound to aliens residing within the territory of the United States, who are deemed to owe temporary allegiance to the United States and thereby are entitled to the reciprocal protections of the Constitution.”); In re Pratt, 18 N.W.2d 147, 152 (Minn. 1945) (noting that “the reciprocal obligations of allegiance and protection and extends to all persons within the state, including aliens and strangers, who, while they are present here, are under obligations of temporary, local allegiance and are entitled to the state’s protection.”).

[10] See Janusis v. Long, 188 N.E. 228, 231 (Mass. 1933) (emphasis added) (“Aliens unlawfully within the country are subject to the criminal law and may be prosecuted and punished for its infraction according to the law of the land. To that extent they owe allegiance to the laws of the government.”).

[11] See Carlisle v. United States, 83 U.S. (16 Wall.) 147, 155 (1872) (holding that aliens who owed “local and temporary allegiance” to the United States “were amenable to the laws of the United States prescribing punishment for treason”).

[12] See 50 U.S.C. § 21 (2006) (providing that “natives, citizens, denizens, or subjects of [a] hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”).

[13] See 1 Op. Att’y Gen. 84 (1798) (concluding that “France is our enemy….”, and that a “Frenchman…somewhere in this country, on the business of buying ships and supplies of a military kind” could be “be apprehended and tried as a traitor….”); Robert D. Powers, Comment, Treason by Domiciled Aliens, 17 MIL. L. REV. 123, 127-129 (1962) (discussing the successful treason prosecution of a Japanese alien enemy residing in Guam for acts committed during the Japanese occupation of the island).

[14] See AndrewHyman, What Does “Subject to the Jurisdiction Thereof” Mean in the 14th Amendment?, REDSTATE (Aug. 14, 2010, 12:17 PM), http://www.redstate.com/andrewhyman/2010/08/14/what-does-subject-to-the-jurisdiction-thereof-mean-in-the-14th-amendment/ (“I don’t think that it would be a huge problem for Congress to treat illegal immigrants like foreign diplomats who are not subject to the jurisdiction of the United States; for example, the individual states would still have full jurisdiction, even though the federal government would not.”).

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