Plyler v. Doe (1982) and Jurisdiction

-Submitted by David Drumm (Nal), Guest Blogger

Plyler v. Doe was a case in which the Supreme Court decided that, under the Equal Protection Clause, Texas could not deny the children of undocumented aliens access to public schools.

The vote was 5-4. More interestingly, by a vote of 9-0, the court addressed the meaning of “jurisdiction” as found in the Fourteenth Amendment.

Section I of the Fourteenth Amendment uses the word “jurisdiction” twice, once in the Citizenship Clause as “subject to the jurisdiction”, and once in the Equal Protection Clause as “within its jurisdiction.” “Within its jurisdiction” has a geographical sense to it, while “subject to the jurisdiction” has an authoritative sense to it.

There’s not much wiggle room in the wording of the Fourteenth Amendment, but Texas, the appellants, tried:

In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws.

Writing for the majority, J. Brennan rejected that argument saying it was not supported by the logic of the Fourteenth Amendment.

Writing for the four dissenting Justices, J. Burger concurs on this point:

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically “within the jurisdiction” of a state.

Opponents of birthright citizenship for children of undocumented aliens often claim that these children are not “subject to the jurisdiction” of the United States and hence, should not be granted citizenship.

In footnote 10 (dicta?) of Plyler the Court addresses the “subject to the jurisdiction” phrase of the Citizenship Clause by citing Justice Gray in United States v. Wong Kim Ark who noted it was:

impossible to construe the words “subject to the jurisdiction thereof,” in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words “within its jurisdiction,” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”

Justice Gray concluded that:

[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

The idea that opponents can somehow construe the phrase “subject to the jurisdiction” to deny birthright citizenship to the children of undocumented aliens, is not supported by the logic of the Fourteenth Amendment. These children can be arrested, imprisoned, and their parents can be deported. To somehow consider them not subject to the authority of the state is ludicrous.

If undocumented aliens cannot be excepted from the protection of the laws of the State, then they cannot be excepted from subjection to the laws of the State.

In INS v. Rios-Pineda a unanimous Court observed:

By that time, respondent wife [an undocumented alien] had given birth to a child, who, born in the United States, was a citizen of this country.

H/T: Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature (James C. Ho) (pdf).