Herbert A. Weiss Immigration Law Blog on Lawyers.com

As those familiar with my blog know, my articles have concentrated on describing U.S. immigration law from an historical perspective.  This enables me to satisfy my twin passions which are my profession as an immigration lawyer and studying American history. One of my more recent articles discussed The Steerage Act of 1819 and how it is related to immigration record-keeping and the ability nowadays to retrieve immigration records from the past.  Before The Steerage Act, the federal government kept no records regarding the arrival of immigrants to our shores.

After The Steerage Act, there were virtually no federal laws or court decisions that impacted on U.S. immigration law for approximately the next thirty years until the U.S. Supreme Court decided The Passenger Cases (1849).  Prior to this decision, the Supreme Court had held in New York v. Miln (1837) that states such as New York could, in the valid exercise of their state’s police power, pass laws requiring that ships’ masters provide them with certain information such as the name, age, occupation, and condition of their passengers.  New York State even imposed a small head-tax on each arriving passenger.  In The Passenger Cases, the Supreme Court reversed itself, finding that state laws imposing taxes on immigrants were a constitutional violation.  According to the Court, it was Congress under the Commerce Clause found at Article I, Section 8 of the Constitution that had the power to regulate the immigration of free persons. New York State’s head tax, according to the Court, was an infringement on this power. 

A debate is currently taking place as to whether individual states in the U.S. have the right to change the Constitution by changing the definition of who is a citizen under state and federal law.  The current law governing citizenship is found in the Constitution’s 14^th Amendment that provides that all persons born or naturalized in the United States and subject to its jurisdiction are citizens of the U.S. and the state in which they reside.  There has always been considerable debate, however, as to the meaning of the phrase “subject to its jurisdiction.”

A coalition of state legislators, likely motivated by their fear that immigration is out of control, are proposing that legislation be adopted that will create a new definition of  “state citizenship.”  The bill would narrow the categories of people who would be citizens at birth: only children born to at least one parent who is a U.S. citizen, national, or legal permanent resident would be considered a citizen.  Also proposed has been the issuance by states of two different types of birth certificate:  one for those considered “natural born citizens” and another for those whom the state might not consider a citizen.

The way one feels about this proposal by state legislators is likely governed by where one stands in general on U.S. immigration policy.  The debate about whether the country is being overrun -- or less dramatically -- harmed by illegal immigration continues unabated although its tone perhaps has grown increasingly harsh and divisive.  In a democracy, there is nothing wrong with debating issues of such vital national importance as immigration although it is to be hoped that the often vitriolic rhetoric on this issue can be toned down. 

What is important from a legal perspective about the proposals to change U.S. citizenship law is how the U.S. Supreme Court will view such laws if they are passed by some states.  If The Passenger Cases is a guide, the Court would likely strike down such state efforts to circumscribe citizenship although the Court might have a host of other arguments, e.g. the 14^th Amendment’s equal protection clause or its interpretation of the “subject to its jurisdiction” clause, to support such a holding. 

From the historical perspective, it is edifying to see that a case as old the The Passenger Cases can still be relevant to our constitutional and immigration history some 150 years later.

For more than 30 years, the law firm of Garganigo, Goldsmith & Weiss has been assisting people with immigration, green card or visa issues. For more information on how our NY immigration attorneys can help, please call us at 212-643-6400, email us online, or visit our office at 14 Penn Plaza, Suite 1020, New York, NY 10122.