Is a state law protecting a non-citizen fetus unconstitutional? The Constitution and 14th Amendment expressly list protecting citizens as a core responsibility of Government. However, a fetus is not a citizen until it is born. The IRS defines as US person as someone that is born. Could the federal government argue that laws by states to protect the life of a non-citizen (a fetus) are unconstitutional according to a strict interpretation? This does NOT imply that murdering a non-citizen should be legal as murder is a general law. States currently want new explicit laws for a fetus because they cannot try abortion as murder as they may like. EDIT: The answer by bdb confuses the action of protection with a mandate of protection. This argument is not that protecting non-US citizens is unconstitutional. It is that laws mandating protection of non-US citizens are unconstitutional.
It may help to start by clearing up some false premises in the question/comments: The Fourteenth Amendment does not &quot;expressly list protecting citizens as a core responsibility of Government.&quot; The IRS does not define &quot;U.S. person&quot; as &quot;someone that is born.&quot; The Internal Revenue Code has no bearing on whether corporations are considered people for purposes of political contributions. Then we need to clear up the main logical fallacy on which the question is built: Even if we accept that the Fourteenth Amendment requires government to protect citizens, and even if we accept that fetuses are not citizens, that doesn't mean states can't protect fetuses. That argument -- &quot;States may protect citizens, therefore states may not protect noncitizens&quot; -- is a straightforward example of denying the antecedent and pretty obviously untenable once you stop to think about it. Houses aren't citizens. Elections aren't citizens. Can state laws protect them? Foreign exchange students aren't citizens; can state laws protect them? How about the Canadian ambassador? The answer is quite well settled. The Tenth Amendment ensures state governments' right to enact virtually any laws to promote health, safety, and welfare, so long as those laws do not run afoul of some constitutional limit. Existing Supreme Court precedent makes clear that that authority -- known as the &quot;police power&quot; -- is virtually boundless. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore &amp; M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895). While Roe v. Wade has long provided just such a constitutional limit against the exercise of that power to regulate abortion, it appears clear that protection is about to vanish. Without Roe, states looking to protect &quot;potential life&quot; will be free to enact virtually any law that would advance that goal.
They don’t, or not necessarily The primary purpose of a constitution is to define the structure, operation and limits on government. It contains the laws that the government cannot change except by any procedure included in the constitution. It isn’t necessarily to spell out the rights of citizens. Some do, some don’t. The median age of constitutions is 19 years - half of them are older than this, half of them are younger. Coincidentally, or perhaps not, this is close to the 20 years that Thomas Jefferson thought a constitution should last since “the earth belongs to the living, and not to the dead.” The US Constitution is the oldest (and shortest) still in modern use - it’s influential but it’s a poor example of what modern constitution’s are like. For some particular examples: the United Kingdom (a unitary state) does not have a written constitution. It’s unwritten one has only one clause - Parliament is sovereign. UK citizens have a bill of rights but that is under an Act of Parliament, they are not constitutional rights. New Zealand (a unitary state) has a constitution but that constitution is an act, or more precisely acts, of Parliament and their bill of rights is also an act of Parliament. Australia (a federal state) has a constitution which is an act of the UK Parliament with a single right (freedom of religion) and no bill of rights. Australians have an implied right of political discourse because the High Court has determined that that is necessary for the democracy described in the constitution to work. Their other rights are those that exist at common law. People in the state of Victoria have a bill of rights (made by Parliament) but no other state or territory has adopted one. the French (unitary) constitution creates the position of “Defender of Rights” but what those rights are and the procedures for defending them are delegated to parliament to decide.
Standing requirements are different in state and federal courts, and from one state to the next. A random individual would not have standing to object to a stranger's abortion in federal court, and likely not in any state court, under normal circumstances, as they are not injured in any meaningful way by the abortion. I don't know what the normal rules of standing are in Texas, but it is likely perfectly acceptable for the Legislature to wave its wand to grant standing to whomever it wants regarding any violation of the law it sees for. That seems to be what is happening here.
The Supremacy Clause makes Federal laws superior to state laws and even state constitutions, but that is only true for Constitutional federal laws. If Congress passed a law seeking to restore the effect of the now overruled Roe decision, there would be a question as to what provisions of the constitution empowered Congress to do so. Such a law might be challenged, and if no convincing source of congressional authority to pass such a law was cited, it could plausibly be overturned. One supposes that the members of the majority in Dobbs would be reluctant to see that decision superseded by a new Federal law. One hopes that they would take a principled stance, and only overturn such a law if there was good legal reason to do so. Without seeing the text of such a law, and the constitutional arguments for and against it, there is no legitimate way to judge if it would be within the power of Congress. As a political matter, I doubt that the current Congress will pass such a law.
No. While the Equal Protection Clause of the 14th Amendment doesn’t apply to the federal government, the Supreme Court has read the same requirements into the 5th Amendment. This is generally considered to have started with Bolling v. Sharpe 347 U.S. 497 (1954) (in this case, &quot;the Court began in earnest to fold an &quot;equal protection&quot; guarantee into the concept of &quot;due process.&quot;” United States v. Madero, No. 20-303, at *9 (Apr. 21, 2022)), and as Buckley v. Valeo, 424 U.S. 1, 92 (1976) put it, Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.
It appears that the "leading" source of Freedom of Movement is the Privileges and Immunities Clause (Art. IV, S.2 , Cl. 1) of the US Constitution, that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". See Crandall v. State of Nevada, 73 US 35: "We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own states" (quoted from an earlier case); US v. Wheeler, 254 U.S. 281 In all the states, from the beginning down to the establishment of the Articles of Confederation, the citizens possessed the right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom citing the Privileges &amp; Immunities clause as the constitutional foundation. However, this article, sect. IB notes a number of additional constiutional sources: Various Justices at various times have suggested no fewer than seven different sources: the Article IV Privileges and Immunities Clause, the Fourteenth Amendment Privileges and [sic] Immunities Clause, a conception of national citizenship said to be implicit in the structural logic of the Constitution itself, the Commerce Clause, the Equal Protection Clause, and each of the Due Process Clauses. Edwards v. California, 314 U.S. 160 relates freedom of movement to the Commerce Clause, Aptheker v. Sec’y of State, 378 U.S. 500 points us to the Due Process clause. The argument hasn't apparently been made based on the First Amendment, since there are better arguments.
Insofar as those treaties don't bind the US, the notion of "violating" such laws is moot. Hoda Muthana is, under Yemeni law, a Yemeni citizen (it is immaterial whether she has ever "accepted" or exploited it), and as such stripping her of US citizenship would not leave her stateless. In the case of Hoda Muthana, the action is based on the legal argument that she was not ever a citizen, based on the premise that her father was a foreign diplomat. Under US law, children born to foreign diplomats in the US are not birthright citizens, following US v. Wong Kim Ark. Birthright citizenship cannot be revoked. However, a person can renounce their citizenship, via certain acts, including taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years;or (3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer The defense argument would presumably be that ISIS is not a foreign state (despite their own claims to the contrary) so her affiliation with ISIS does not qualify. There are grounds for denaturalization, including falsifying or concealing relevant facts pertaining to naturalization, refusing to testify before Congress, or joining a subversive organization including Al Qaeda within 5 years of naturalization.
The Fifth Amendment protection relates to a repugnant act, that of forcing a person to testify against themselves, and it is not about ways of looking at &quot;information&quot;. The relevant (legally-ancient) distinction is between a general inquiry and an accusation. The courts have always had the power to make a general inquiry, but there have been limits on the ability of the courts to make accusations. It is a fundamental requirement of law that there must be an accuser, if there is to be a criminal proceeding. But is it also considered to be morally repugnant to force a person to accuse themselves. The difference lies not in the informational content in question, it is in what act – compelled self-accusation – is excluded from the legal system.