The Nuance of 'Subject to the Jurisdiction'

I watched Judge Andrew Napolitano on the Fox Business Network talk about the jurisdiction clause in the 14th Amendment, specifically, “subject to the jurisdiction thereof.”

He made the point, as I did in my previous post, that one group of people that this applies to are foreign diplomats. He disagrees with the contention that it should apply to illegal immigrants too.

The point he made was that illegal immigrants are indeed subject to the laws of the country. If an illegal robs a bank and gets caught, he will be arrested and prosecuted. Therefore, the Judge concludes, they’re subject to the jurisdiction of the United States.

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I believe he’s not following his own logic regarding foreign diplomats. A foreign diplomat is not above the law. They can’t go around killing people, robbing banks or even excessively speed down FDR Drive.

They must obey the laws of their host nation or face a citation, prosecution or even expulsion back to their home country. The reality they’re expected to follow the same U.S. laws as citizens or face consequences makes them subject to the jurisdiction of the U.S.

If diplomats weren’t subject to U.S. jurisdiction, then someone with foreign diplomatic status could commit honor killings if honor killing was lawful in their home country. The fact is that while on U.S. soil, they can’t commit acts that violate U.S. law no matter what the law is from where they’re from. Therefore, foreign diplomats are subject to the laws of the United States.

If everyone effectively that sets foot on U.S. soil are subject to the jurisdiction thereof, then why include the clause? Perhaps the courts will decide the clause has a more nuanced meaning.

Though foreign diplomats are subject to U.S. law, they also are immune from prosecution for the crimes of their government. For instance, the Iraqi Ambassador was allowed to freely reside in the U.S. during the Iraq war because he represented Iraq’s position to the United States. The rest of Saddam Hussein’s officials were put on playing cards and hunted down, but not the diplomats.

This means that foreign diplomats are partly subject to U.S. laws and partly not – nuance.

Federal Immigration Jurisdiction

There are multiple jurisdictions in the United States. There’s local, state and federal. If aliens break other laws besides residing here illegally, they’re subject to the proper jurisdiction depending on the crime.

Illegal aliens are not, however, subject to the U.S. federal jurisdiction regarding citizenship and immigration services, except deportation. If they get caught by ICE, then they’re subject to deportation and the case can be made that they fit the definition of being subject to the jurisdiction, thereof.

The nuance here is that federal citizenship and immigration services do much more than deport illegal aliens. People who are subject to our immigration laws are vetted for public safety and security; they’re given legal status or denied entry; work permits are issued and they pay federal taxes, among other things.

Because illegal aliens are not subject to these federal immigration services, they do not fit the definition of subject to the jurisdiction, thereof.

This is because they’ve already declared by their very acts of illegal entry or illegal visa overstay that they’re not submitting themselves to federal immigration laws. They’ve chosen to reside here unknown and under the radar. Therefore, they’re not subject to most of our federal immigration laws.

The Federal government cannot vet them, allow access or deny access, issue visas which have expiration dates or collect federal taxes. How can illegals be subject to the jurisdiction of federal immigration if federal immigration doesn’t know who they are or where they are?

Do you disagree, Judge, that foreign diplomats are, at least, partly subject to the jurisdiction of the United States? If you judge correctly, then why is the clause added? If you say that it’s added because diplomats are partly not subject to U.S. laws, then can’t you agree that illegals share the same nuance?

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