Legal briefs

Textualism and originalism

President-elect Trump campaigned on the promise to deport illegal immigrants. How and to what extent this may be done is unclear. On one end of a spectrum you have illegal immigrants who commit crimes after entering the country. There is broad agreement they should be deported. At the other end of the spectrum are children born in the U.S. to parents who crossed the border illegally. In a recent media interview, Trump suggested these people should be deported with their parents to avoid family separation. A likely impediment to such a move is the Fourteenth Amendment to the U.S. Constitution. The Amendment says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This seems to say that children born on U.S. soil are citizens, regardless of the status of their parents. But what does the phrase “and subject to the jurisdiction thereof” mean?

Some argue the phrase means if your parents weren’t here legally, then you are not “subject to the jurisdiction” of the U.S. This is probably not a winning argument. Even people here illegally are subject to the jurisdiction of the U.S. For instance, they can still be brought under the jurisdiction of U.S. courts for criminal prosecution. Others, such as Judge Richard Posner, argue that Congress can pass a statute defining whether children so born are “subject to the jurisdiction.” Bills like that have been filed in Congress, but none has passed. Originalist scholars interpreting this part of the Amendment will look to the meaning of the words when they were adopted. The Fourteenth Amendment was adopted after the U.S. Civil War to, in large part, grant citizenship to former slaves. This historical context strengthens the argument that the Fourteenth Amendment confers citizenship to the U.S. born children of illegal immigrants.

This issue is far from straightforward, and will take some time to sort out through the courts. The Federalist has a good article on the topic, which you can read here if you want.

Crime

A recent study from the Northeastern University Crime Prevention Lab examined use of force by police. The researchers explored what “situational, organizational, and community factors explain the distribution of use of force across police responses to calls for service.” They looked at thousands of police reports in Cincinnati, Ohio from 2014 to 2020. They found that whenever a call to the police described an individual being violent or having a mental health problem, use of force by police was more likely. Unsurprising. The researchers also found that when callers reported that crimes were ongoing, and the police rushed to the scene, they were more likely to use force. Again, makes sense.

There were also things that did not affect use of force. Whether it was nighttime or daytime made no impact. Time periods where alcohol use is higher made no impact. The number of police on duty did not alter the likelihood of use of force. And, disappointing to the recent criminal reform movement, the racial or ethnic makeup of the community made no difference. For the most part, police officers use force when the situation calls for it because of the suspect’s behavior. When, where or what the suspect looks like makes no difference.

More crime

The CDC recently released data showing a decline in overdose deaths in the U.S. over the last year. There were only—only—97,000 fatal overdoses over the last twelve months, down roughly fourteen percent over the previous year. This is certainly good news. Experts are unsure why overdose deaths are declining. Some argue that all the addiction services and the availability of naloxone are causing it. I’m skeptical of that explanation because those things have been in place for years to no real effect. Some argue that fentanyl and related drugs have become less potent. There is no real evidence for that. One argument, the one I find most persuasive, is that so many people have now died from drug overdose that the number of vulnerable users is going down. There’s a term for it—saturation. It’s a real shame, though. Permissive policies toward these drugs have allowed saturation and far more death than was necessary.

Other

In early November, Brittany Lovely, a second-year law student at Georgetown Law School, requested special accommodations for her upcoming law school exams. Brittany is pregnant and due to give birth just before the tests. She was asking to take her finals either earlier or later. The law school refused to accommodate her. They said she would have to come in a few days post-partum because to move the exams would be “inequitable to all the other non-birthing students…” and that “motherhood is not for the faint of heart.” After Brittany went public with the school’s response, the school faced heavy backlash, then relented. Brittany will now be allowed to take her exams in January. Good job, Brittany, and best of luck on your final exams. You can read more about it here.

Thank you Judex readers! As always, please forward this along to your friends and tell them to subscribe.