President Trump said he was preparing an executive order to end birthright citizenship in the United States, his latest maneuver days before midterm congressional elections to activate his base by clamping down on immigrants and immigration....There are 3 questions on the midterm exam:
At issue is the 14th Amendment to the Constitution, which states, 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' But some conservatives have long made the argument that the amendment was meant to apply only to citizens and legal permanent residents, not immigrants who are present in the country without authorization....
"Now they’re saying I can do it just with an executive order,': Mr. Trump said.
1. Do you know the constitutional argument that the President can end birthright citizenship with an executive order? The answer is not: I know there is one or I read what the argument is and I understood it at the time. The question is: Do you know the argument? Did you read or hear the argument, understand it, and retain it, such that you could articulate it without looking it up again and you could explain it to someone else?
2. Drawing on your present knowledge or researching the argument and boning up on it, can you explain it to someone who is looking at that 14th Amendment text and who will expect you to adhere to an approach to constitutional interpretation that you apply to all the other text in the Constitution?
3. Do you think the argument will be accepted in court, and do you need the answer to be yes before you will support Trump's plan to sign this executive order or do you think signing the order is a good thing for Trump to do even if it will ultimately be rejected in court? Does the fact that Trump is announcing this one week before the midterms show that Trump's decision is based on a desire to affect what we're talking about this week, to redirect us away from right-wing terrorism and anti-Semitism and back to the Caravan and illegal immigration?
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333 comments:
«Oldest ‹Older 201 – 333 of 333Executive Orders are Constitutional.
I have no problem interpreting “and subject to the jurisdiction thereof,” to mean someone legally entitled to reside here.
Blogger gahrie said...
McCain is a citizen because the Panama Canal Zone was American territory when he was born there.
So the child of a Panamanian woman, born in the Panama Canal Zone would be a US citizen by virtue of being "born in the United States"?
Nope. Not hardly.
I asked the question early on and nobody has tackled it so let me ask again:
What is "the United States" for purposes of citizenship?
Hint, it is not defined by the Constitution but by statute.
Additional hint, it does not and has never included the Panama Canal Zone. There did used to be a special clause for children of employees of the Panama Canal Company but that does not apply to McCain in particular or the discussion in general.
Additional hint, it specifically excludes those born on Swain's Island who are "Nationals but not citizens" of the US.
John Henry
My biggest beef with birthright citizenship is that combined with family unification policies, it allows illegal immigrants to benefit from prior bad acts.
People come here illegally, have a child and the child is an American citizenship. The illegal immigrants are now allowed to stay here as the parents of an American citizen, and in fact bring other family members in also.
I would be fine with birthright citizenship if the residency requirement was enforced (the children of tourists, temporary residents or visa holders don't get citizenship) Otherwise family unification and chain migration is a far bigger problem.
I suspect, but don't know, that there were a number of Germans who had been born in the US (US Citizens), emigrated back to Germany and were drafted into or joined the German military in WWII.
I'm reading Ambrose's book, "Citizen Soldiers" about the war after D Day. There are several stories about German officers who had exactly that dilemma.
So the child of a Panamanian woman, born in the Panama Canal Zone would be a US citizen by virtue of being "born in the United States"?
We'll never know now, but I bet if a case had ever been brought before 1979 the courts would have ruled yes.
Lindsay Graham introduced just such legislation.
He added that he plans "to introduce legislation along the same lines as the proposed executive order" from Trump. Congress is out of session until Nov. 13.
If Graham is going to propose legislation to amend the Constitution, his bill would need to win over not only two-thirds majorities in Congress, but also be ratified by three-quarters of the states.
His announcement comes hours after Trump said in an interview released Tuesday that he will sign an executive order intended to end the practice of birthright citizenship.
The more immediate question is enforcability. How does the federal government "deny" citizenship to an infant? There no rights or privileges that an infant can exercise for the very reason that they are infants. They may or may not be deportable if their parents are deported, but their parents can be prohibited from abandoning their infants when the parents are deported.
Likewise there is the question of standing and ripeness.
The notion that anyone can obtain a major legal benefit by committing a blatantly illegal act is absurd.
The intent and meaning of the framers of the 14th Amendment was not to commit a manifest absurdity.
Mark, at 10/30/18, 11:11 AM, makes a good counterargument.
In particular the part about residence. The language of the amendment does seem to exclude children born to parents that have no residence in the United States. If they are just passing through and staying in some motel then they are not citizens if we take the 14th amendment literally. And very likely that was the sense in which it was intended.
Of course what does 'residence' mean? That's the problem. That could be defined so many different ways. That's why it's so attractive to just make it the simple question of where the child is born.
But Mark is right. That's not what the 14th amendment says.
All persons born...
Has the Supreme Court ruled on whether or not caesarean sections count?
"So, Obama's 'pen and phone' should have been grounds for impeachment?"
Did it create new law? Did Congress oppose it? Even if the president commits impeachable offenses, Congress must still act to impeach. I wouldn't have been unhappy to see Obama impeached...as with Bush, he was a war criminal, and he worked for the benefit of the rich elites who rule the country, and not for the benefit of the people.
(1) Yes, I understand the argument.
(2) Yes, I can explain it – Trump is trying to redefine what “subject to the jurisdiction of {the United States]” means in a way that is pretty much contrary to what everyone who deals with “jurisdiction” knows it means. Basically, if you are physically present in a country, you are subject to its laws regardless of whether you are there “legally” or not. The only exception that I’m aware of is where the laws of the country exclude certain persons or classes of persons (e.g. diplomats) from its jurisdiction. No one has seriously tried to argue that an illegal alien who murders someone or robs a convenience store could not be arrested and prosecuted for those crimes which is why trying to argue that they are not “subject to the jurisdiction” of the United States is so patently frivolous.
(3) No, I expect the argument to fail and if it gets to the Supreme Court to be defeated by at least 7-2 (with Gorsuch and/or Kavanaugh being in the majority ruling against Trump). The only reason I’m thinking Trump might get two votes is that it’s possible that Alito might vote for Trump and that RBG has gone so far down the path of her senility by that point she votes to uphold Trump’s executive order by mistake. I do not support any plan to sign an executive order because I consider the argument that he is trying to make frivolous on its face. Yes, I do think this is part of an (ill-conceived) plan to try and whip up his base for the midterms in two weeks and while I would prefer that Republicans win over Democrats, I think that this will fail and it should.
"What about those who enter upon U.S. soil with the express intent of avoiding U.S. jurisdiction? That is, those who by their own actions do not submit themselves to the jurisdiction of the U.S.?"
Any person on U.S. soil is under U.S. jurisdiction, foreign diplomats excepted, (unfortunately).
Mark said...
...So let's look at the text -
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
But we can't stop there. There is that uniformly overlooked language at the end referring to the state where the person "resides." (4) If the person is merely sojourning through, a mere traveler passing through or even a short-term tourist, they are not residing here.
The wherein they reside is in reference to state citizenship. It was forcing states to treat people to whom the Amendment applied as citizens of the state where they are living. Note that it has nothing to do with the state where they were born. If they meet the criteria of citizenship under this amendment, then state citizenship follows them around if they move. As such, residing in a state is not part of the condition for attaining U.S. citizenship.
"Executive Orders are Constitutional."
Yes, but they cannot violate the Constitution or be new law created out of whole cloth. That would give the president dictatorial power, something the founders most especially did not want. Executive orders direct how existing law will be interpreted and enforced. They are also subject to judicial review.
Blogger Michael K said...
I'm reading Ambrose's book, "Citizen Soldiers" about the war after D Day. There are several stories about German officers who had exactly that dilemma.
in Nevil Shute's novel Pied Piper there is a German major, born in Milwaukee, who gets John Howard, the "Pied Piper" of the title, to include his children in the group of children that Howard is taking back to England. He wants to get them to safety with his sister in Milwaukee. I don't remember if his children were born in the US or Germany.
Otto Preminger played the major in the movie. I doubt there was ever anyone who played the evil National Socialist as well as Preminger did in several films, including this one.
As with many of Shute's novels, there is some factual basis behind the story. I have no idea about the colonel specifically.
The 1942 movie is, or used to be, available on YouTube. Not great but an enjoyable way to spend an hour or two.
Any other Norwegians here beside Michael and myself?
John Henry
This is where I wake up and realize that I have been skipping Althouse's class since day 1.
Michael K. Of couse your insult came before I responded to your POW comment so your explanation makes no sense. Why such a strong desire to make those who disagree with you feel unwelcome on this blog?
Blogger mandrewa said...
Of course what does 'residence' mean? That's the problem. That could be defined so many different ways. That's why it's so attractive to just make it the simple question of where the child is born.
I don't think the residence clause applies to US citizenship but to state citizenship.
States get to set their own residency requirements. I was in Chicago on election day 2016. As I understand it, I could have gone down Tuesday morning to the polling place, shown my hotel receipt as proof of residence and voted for Donal Trump. Then come back to PR on Thursday.
I didn't, having more interesting things to do that day.
Perfectly legal since, not being in PR on election day, I could not vote here. (Extremely limited and strict access to absentee ballots and no early voting at all)
John Henry
GMTA, IIB
John Henry
I have read most of Neville Shute's novels and have a copy of "Pied Piper" but never got into it.
I didn't know there was a movie.
I read "Little Drummer Girl" by Le Carre but did not understand the plot until I saw the movie.
I have a nephew who was born in Germany to an American mother who was the wife of my American Air Force brother.
Does my nephew have German citizenship or American citizenship? Explain.
(Extremely limited and strict access to absentee ballots and no early voting at all)
I heard on the radio yesterday that 59% of Arizona voters have already voted absentee.
"I wasn't clear on the 'Obama pen-and-phone' referenced by Doc Holliday, so I just did a quick search and review."
Yes, to the extent Obama may have essentially created new laws, he exceeded his rightful power, and he should have been sanctioned, including by impeachment. I recall now being unhappy about all the executive orders he was issuing. (I'm of the opinion that executive orders should be used rarely by any president, and only to clarify existing policies and statutes.)
Of course, I never voted for Obama as I knew he was a liar before he even became president.
The President can do anything he wants to. He is there God-King, the Lighrworker ... Oh, that was the last guy, wasn’t it?
Does my nephew have German citizenship or American citizenship? Explain.
I think the American mother establishes US citizenship but, I think the child has to spend time in the US before age 18.
I think that was the reason why Obama was sent to live with his grandparents.
I dint know about German citizenship laws.
Blogger DavidD said...
I have a nephew who was born in Germany to an American mother who was the wife of my American Air Force brother.
Does my nephew have German citizenship or American citizenship? Explain.
Don't know about German citizenship but probably not, for the same reason that a baby born to the wife of a German military born in the US would not have US citizenship.
Does not have American citizenship.
Does have US citizenship which he gets from his mother's citizenship. Same as Ted Cruz, same as John McCain.
John Henry
Why such a strong desire to make those who disagree with you feel unwelcome on this blog?
First, it is not my blog.
Second, as I recall, you were quoting something by Freder who keeps posting silly things that he knows nothing about,
I have considered you fairly civil compared to Inga and Ritmo and Howard. Freder is sort of hapless and keeps posting stuff he doesn't know anything about, like the military.
When you quote or repeat what he has posted, I suffer fools poorly.
The issue of birthright citizenship is complex and an immigration lawyer would be the best but so many of them are left wing and let politics trump logic.
On (2), I understand the argument that the amendment didn't mean to include the children of illegal aliens- indeed I think this is an open and shut case since the writers of the amendment wrote the conditional phase in the first place- in other words, they could have simply written "all children born within the boundaries of the United States are citizens thereof", but they didn't write it that way, so the conditions must have been intended to exclude the births of some people, right?
On (1), I would have to research to see what Congress has written in regards to birthright citizenship. My belief is that Congress has never explicitly written it into the law that illegal aliens can give birth to US citizens in this manner, but I could be wrong since I have never actually researched this topic, or even given it much thought. If Congress has been silent in this regard, then I think Trump can issue his executive order and have it thrashed out in the court system- he is, after all, the executive, and as such has the power to grant or deny/revoke citizenship status under the laws passed by Congress- the courts would then have to decide whether the decisions in this case follow the laws passed by Congress, and whether or not such citizenship is granted by The Constitution itself.
On (3), I expect such an order to be stayed almost immediately, and that the EO would be tossed out at the district level somewhere in the 9th Circuit, and that decision would be upheld by the DC Circuit. I can't say what SCOTUS might do. If Congress has, however, written such citizenship into the actual law, I think even SCOTUS would overturn the EO and do so unanimously.
Generically, I would question whether or not Congress could give such citizenship rights if SCOTUS were to interpret the amendment the way I would. I would argue that Congress couldn't write birthright citizenship into the law that way, and that a President couldn't grant it by decree either. So, I think the issue really comes down to what the amendment means, and SCOTUS would decide this.
The Constitution has a legal, not geographical scope. It is written for two parties: "the People" and "our Posterity". The jurisdiction of The Constitution is of those two parties. Natural born is to a citizen mother and citizen father. All others are subject to the jurisdiction of lower laws. The question of children born to non-citizens is settled conclusively by the Twilight Amendment, wherein the baby has no human or civil rights until it is deemed worthy. Any unPlanned babies of a non-citizen mother or non-citizen father are eligible for naturalized citizenship.
When they strike it down, I just hope that they add "By golly, the Constitution IS a suicide pact!"
gilbar,
"Can someone give an example of ANY other country that allows birthplace citizenship of tourists...?"
I can!
My daughter was born in Kenya in 1981, and received a Kenya birth certificate. We were definitely there on a temporary basis: we lived in Sudan at the time, and there wasn't a single Hospital in that entire country where you would want to give birth, in case an emergency arose (thankfully, none did.). So we went to Kenya for a month.
As a result, my daughter held dual citizenship for a number of years, even after we returned to the US. Kenya law at the time she was born specified that upon attaining the age of 18, she could only retain her Kenyan citizenship if she were announced any other citizenship... But then they rendered that question moot before she reached that age, by retroactively abolishing all dual citizenship. I guess too many wazungu were coming to reside in Kenya...?
John Henry,
"his Canadian PP to go to the US (He has some sort of unlimited access visa) "
Don't all Canadians have the ability to enter the US as visitors, without a Visa? The reverse is certainly the case!
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Ignorance is Bliss argues that of the State wherein they reside is meant merely to emphasize that citizens of the United States are also citizens of the states that they live in.
I note that other parts of the Constitution already made it clear, and far more explicitly, that citizens of the United States have the right to move to any state and become residents, and in particular that states never have the right to prevent citizens from leaving them or entering into them.
Mark argues that the phrase is meant to mean something more than that, and that is a restriction: the parents have to reside.
It seems to me that both interpretations are legitimate.
Since part of the unwritten rules of the Constitution and the amendments is that ideas are stated concisely then I wonder why the 14th amendment wasn't simply: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States if in fact that was the intended meaning. Why add the additional predicate if it doesn't change anything?
The counter-argument might be that it was stuck on there because it makes the sentence flow better.
I think that is possible but probably not the case, and it is more likely the predicate means something, and the intended meaning was that the parents of a US citizen have to 'reside' or live in the United States.
Blogger Kirk Parker said...
Don't all Canadians have the ability to enter the US as visitors, without a Visa? The reverse is certainly the case!
I think, but am not sure, that a Visa is required to enter on business. This would be a lot of his trips. In any event, his traveling to the US on the Canadian passport is pretty easy.
It is very easy for me (US Citizen) to enter Canada as a tourist. Entering on business used to require me to show a purchase order from the company at the Toronto airport and buy a temporary permit for $100. That allowed me only to visit that company.
In recent years it has changed and gotten much more difficult.
The only troll I would kick off of this blog if I could would be Inga. I have attended many Friday night and Saturday services at Temple. I have B* Mitzvahed both children, and attended many more and she crossed a line when she said that I didn't care about the people shot. I won't even go into friendships with blacks living in a black majority district in Florida. What a fucking bitch blinded by partisanship.
Since part of the unwritten rules of the Constitution and the amendments is that ideas are stated concisely then I wonder why the 14th amendment wasn't simply: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States if in fact that was the intended meaning. Why add the additional predicate if it doesn't change anything?
Because we are the United STATES not the United Provinces.
Absent the state citizenship requirement, states could have said that black US Citizens were unable to reside in the state. Or were unable to be citizens of the state and thus unable to vote and so on.
At that time we were still a collection of sovereign states under a federated compact. Not a single country.
Think France, Germany etc and the EU.
John Henry
He's trying to unite the country in the wake of recent tragedy. He will be criss-crossing the country to do the same.
There is another clue in the 14th amendment that implies it does not mean:
All persons born or naturalized in the United States are citizens of the United States.
This is the standard interpretation of what the 14th amendment means. It was my understanding before this afternoon. But if that was the intended meaning why wasn't that sentence the 14th amendment?
What's the point of adding and subject to the jurisdiction thereof, and the business about residing?
Both of those qualifications seem to imply that it isn't enough to just be born in the United States.
Who actually does subject to the jurisdiction thereof exclude? By the current interpretation, it would seem only to exclude the children of diplomats posted to the United States. Does it really seem reasonable that the writers of the 14th amendment would be worried about this very special case?
Does it really seem reasonable that the authors of the 14th amendment felt that the children of tourists born in the United States should be US citizens but that the children of diplomats born in the United States shouldn't?
Does it really seem reasonable that they would even be thinking about the children of diplomats?
I think Inga is just stupid and Ritmo is more annoying but I just need to keep reminding myself to ignore them.
Their purpose, especially Ritmo, is to get responses. Classic troll behavior. I think Inga is not a classic troll. She just thinks DNC talking pints are gospel.
I am now reading that WA state's AG is going to sue the Trump administration over this. On what basis? Don't you have to show some kind of 'harm' to the state that would be caused if the act was implemented?
gahrie said...
I'd love for Trump to have the authority to issue such as Executive Order, but sadly I don't think he does.
I wouldn't, because Trump having that authority would mean that other presidents would have similar authority, and I don't want them to.
I'd need to know what "subject to the jurisdiction thereof" means. If it's not defensible, it's a bad idea. I noticed he didn't sign anything, he just said we would sign it presumably after it has been vetted by competetent legal experts.
Any violation of the Constitution by the President in any context is significant, especially if it sets a precedent that will allow Presidents to create law by edict.
Have to agree with Cookie on this one. What we need is a Constitutional amendment. Not easy to achieve but if ratified should end this abuse once and for all.
Immigration paralegal here. Canadians coming to the US on business (TN, H-1B, E2) don't get visas but they do get an I-94 Admission Record (as do all non citizens entering the US) and they only get that if USCIS (petition application via mail) grants the approval (they take this paper to the border) OR via border application via USCBP. In the latter case they have to present the same evidence to the CBP officer for adjudication.
But there is an application/petition process but no visa in their passport. The I-94 serves to show their immigration status and length of stay.
Who actually does subject to the jurisdiction thereof exclude? By the current interpretation, it would seem only to exclude the children of diplomats posted to the United States. Does it really seem reasonable that the writers of the 14th amendment would be worried about this very special case?
At the time of the amendment, it also covered Native Americans who were under tribal jurisdiction. That has since changed due to other changes in the law. It was not that special of a special case.
Does it really seem reasonable that they would even be thinking about the children of diplomats?
Whether or not it seems reasonable, they were clearly thinking about the children of diplomats, since they specifically discussed that case while debating the amendment.
Thorley Winston:
1. Where do you teach con law at?
2. Nasty comment about RBG. She should have retired when Obama was President but she thought HRC would win. Now she is stuck for another 6 years, if not 10.
3. Here's the thing: this case will be litigated and SCOTUS will settle it. I say 5-4 in favor of Trump's view of the 14th Amendment but will the decision be prospective or retrospective?
4. Althouse needs to post an answer key to her questions.
Here's a record of the congressional debate about the 14th amendment at the time it was being considered:
https://www.scribd.com/document/36527058/Congressional-Debates-of-the-14th-Amendment
Senator Jacob Merritt Howard of Michigan: "this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
That is of course just one person's opinion. But if we go and look at the debate and don't find even one person contradicting, or arguing with, Senator Howard's words, or related statements by others, then that would definitively establish what the authors of the 14th amendment intended.
That comma after "aliens" is really curious.
The words of the 14th amendment All persons born or naturalized in the United States and subject to the jurisdiction thereof are not plain and unambiguous. "subject to the jurisdiction thereof" is a huge opening. First- we know that kids of accredited diplomats born here don't acquire citizenship. That' established law. Clear and unambiguous. Diplomats aren't subject to the jurisdiction thereof. So, it comes down to, who is subject to the jurisdiction thereof?
My answer- and one that I would hope the courts agree with, is U.S. citizens, and lawful aliens here with permanent legal residency. Not students on temporary visas, not Chinese women here on a birth visit, not random vacationers who happen to go into labor, but citizens and lawful alien permanent residents. And definitely not children of aliens here unlawfully.
I'll defer to the House Speaker on this one.
I am now reading that WA state's AG is going to sue the Trump administration over this. On what basis?
Bob Ferguson has a macro he punches up when it comes to suing the Trump Administration. He simply swaps out the subjects.
He's a political whore who's running for governor when Inslee eventually crashes and burns on the national stage.
Ignore him. I do.
Althouse, you are framing the question the way YOU would expect it to be contested. If I was Trump, I would frame it as a national defense issue: America is being invaded by persons who do not mean us well and it is the President’s job to defend against invasion. Framed that way, he clearly has the power to stop the invasion. Not only from illegal border crossers, caravans, etc. but also from aliens who fly in to sightsee and, oh by the way, have an anchor baby.
Referring to an earlier comment of yours:
"1. constitutionally, the President can issue ANY executive order he wants; it is up to the courts to say it's not."
Can you square that with the oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
What a fatuous rebuttal! Should I point out that a President is the ONLY person who can decide what the meaning of this oath is?
Nasty comment about RBG. She should have retired when Obama was President but she thought HRC would win. Now she is stuck for another 6 years, if not 10.
Sorry if you feel that it’s “nasty” but she made the choice to cling to a job well past the point where she could do it effectively and with her age and health problems, I doubt that she’ll last another two years.
The issue of birthright citizenship is complex and an immigration lawyer would be the best...
Read the 14th amendment much? Capable of interpreting its "plain meaning," as your right-wing jurists call it?
...but so many of them are left wing and let politics trump logic.
Don't forget to complain about how the Declaration, Constitution and Bill of Rights are "left wing" also. Go ahead and point out what was "conservative" in any of those things, you Old European rat-face.
I have considered you fairly civil compared to Inga and Ritmo and Howard.
Check out who appointed himself guardian of the Althouse blog. Hall Monitor Michael K.
He's the guardian of taste, here.
What a bore.
"My answer- and one that I would hope the courts agree with, is U.S. citizens, and lawful aliens here with permanent legal residency. Not students on temporary visas, not Chinese women here on a birth visit, not random vacationers who happen to go into labor, but citizens and lawful alien permanent residents. And definitely not children of aliens here unlawfully."
Exactly. Everything else is shady penumbrae.
TW:
For the Dems, a horrible misjudgment by RBG. She had to cling to power. And now Trump will replace her. She is so, so vain.
What a ridiculous post, as usual. Trump never advanced any "argument" for abrogating the 14th amendment. He just said the usual BS about what "some people said."
It gets harder and harder to take Ann's scholarship seriously when the majority of what she does here is play interference for a client so bad that his own attorneys argue that he can't be made to answer questions or appear before a judge because of how much of a legal liability he is to himself. And just because he's the president? Is her need to suck up to a power junkie like Trump really that acute?
What an embarrassment.
1. Do you know the constitutional argument that the President can end birthright citizenship with an executive order? The answer is not: I know there is one or I read what the argument is and I understood it at the time. The question is: Do you know the argument? Did you read or hear the argument, understand it, and retain it, such that you could articulate it without looking it up again and you could explain it to someone else?
Mmm, no, I don't know the argument. But I think the argument is that there is a class of illegal immigrants who is not "subject to the jurisdiction" of the United States under the 14th amendment, and hence is not covered by the guarantee of citizenship.
2. Drawing on your present knowledge or researching the argument and boning up on it, can you explain it to someone who is looking at that 14th Amendment text and who will expect you to adhere to an approach to constitutional interpretation that you apply to all the other text in the Constitution?
Present knowledge only, so part of this is made up. But I think the "subject to the jurisdiction" requirement is there essentially in contemplation of the possibility of foreign invasion, i.e. that if an invading army were to occupy some portion of the territory of the US and administer it as their own territory, colonise it, etc., those colonists could not thereby acquire US citizenship. In other words, having done no research whatsoever, I think that's the "original meaning" of the provision, as it was or would have been understood at the time of its enactment.
Applying that to the problem of birthright citizenship, the implications may be different for different categories of immigrants. Legal immigrants, for example, acknowledge the authority and the laws of the US. They have entered peaceably and openly, are clearly subject to the jurisdiction of the US. Illegal immigrants who seek to evade border control (e.g. by attempting to cross at undefended points of the border) are not quite the equivalent of an invading army, but they are less clearly subject to the jurisdiction of the US, and the argument that they are excluded from the scope of automatic birthright citizenship is correspondingly much stronger. When would-be illegal immigrants are organized into a caravan that openly proclaims its contempt for US laws, the argument is even stronger. On the other hand, the numerous class of illegal immigrants who entered the US lawfully but unlawfully overstayed their visas is a harder case -- that class of people could reasonably be considered subject to the jurisdiction of the US.
3. Do you think the argument will be accepted in court, and do you need the answer to be yes before you will support Trump's plan to sign this executive order or do you think signing the order is a good thing for Trump to do even if it will ultimately be rejected in court? Does the fact that Trump is announcing this one week before the midterms show that Trump's decision is based on a desire to affect what we're talking about this week, to redirect us away from right-wing terrorism and anti-Semitism and back to the Caravan and illegal immigration?
I think the argument will not be accepted in court as is. Or rather, I don't think the above is likely to be the precise argument that the administration presents, if what I am reading is correct, viz. that he is trying to end birth tourism and the anchor baby strategy. Anchor babies are frequently born to people who are lawfully present in the US, e.g. on student visas (true of several of my relatives). I also don't think we have a blanket policy of prohibiting pregnant women who will shortly come due from entering the US under ESTA/visa waivers. Consequently, I think the administration could be in the position of arguing for abolishing birthright citizenship for the children of people who are, in the above analysis, subject to the jurisdiction of the US. And I don't think that will work.
United States v. Wong Kim Ark,
https://www.law.cornell.edu/supremecourt/text/169/649#writing-USSC_CR_0169_0649_ZD
He can use an EO because there is no binding legal precedent on the issue. The only law is the 14th Amendment, and a Supreme Court case interpreting it in relation to the child of legal, not illegal immigrants.
The EO will obligate the Supreme Court to rule on the issue, and perhaps will spur Congress to legislate. But for the time being, there's no law directly addressing the question. The executive is an equal branch of government, nothing wrong with weighing in and getting the ball rolling.
The phrase itself, subject to the jurisdiction thereof, must refer to being subject to U.S. law when not present on U.S. territory. For example, having to file a U.S. tax return even when living overseas. If the phrase only refers to being subject to U.S. law when on U.S. soil, it's not really necessary.
Political considerations? Those always exist, but I think he's right on the law.
Done. Do I get an A?
I think the argument will not be accepted in court as is.
It DOESN'T MATTER what will be accepted in court.
Trump says that "some people told him" something. Don't you understand that that is the new standard for truth in America?
Blogger mandrewa said...
“Here's a record of the congressional debate about the 14th amendment at the time it was being considered:
https://www.scribd.com/document/36527058/Congressional-Debates-of-the-14th-Amendment
Senator Jacob Merritt Howard of Michigan: "this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons."”
“this will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors...”
Holy Cow! foreigners? aliens? Reasonable reading of that says the people in question are NOT to be granted citizenship.
Can you square that with the oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
1. If the issue is not clearly defined, the President isn't abdicating his responsibility by choosing the interpretation s/he prefers.
2. I suspect this is more than simple electioneering, but the first step at cutting off the arguments that ending birthright citizenship requires a Constitutional Amendment.
3. Trump knows this will likely be struck down along the way, but he plans to press Congress to change the law, and their pending legislation will be attached to the case by the time it reaches the SC.
4. If he fails to get a law passed, but the SC grants its within his Executive Powers to regulate immigration, Trump wins anyway so he needs to get the clock ticking on this.
5. If all this fails, he runs for a second term on changing the Constitution.
Not the questions you asked, but answers I found more interesting to ponder.
Having submitted my answer, let me browse the thread . . .
Re: mandrewa:
Who actually does subject to the jurisdiction thereof exclude? By the current interpretation, it would seem only to exclude the children of diplomats posted to the United States. Does it really seem reasonable that the writers of the 14th amendment would be worried about this very special case?
At the time (19th century), I would bet they were worried about invasion and occupation of US territory by foreign powers. It's actually conceivable that they might also be concerned about illegal immigration, seeing as massive illegal immigration from the USA into Mexico's northern territories is how Texas ended up declaring independence and eventually becoming part of the US. But that was a generation before, so perhaps not all that salient at the time.
In other news, the media will go berserk about "the plain meaning of the Constitution" making fools of themselves in the process.
Is it true that the SCOTUS has never ruled on the application of the 14th to children of illegals?
If the phrase only refers to being subject to U.S. law when on U.S. soil, it's not really necessary.
Why not? When the amendment was passed, not all Native Americans were subject to U.S. law (they were sovereign nations). They remain sovereign nations but since 1924, by statute, are also U.S. citizens. And of course, there is always the issue of diplomatic personnel, who were not, and still not, subject to the jurisdiction of the U.S. (the illegal parking by people with diplomatic plates is a nightmare in D.C. and New York, and the cops can't do anything about it). Also, when the amendment passed, a U.S. citizen would not be subject to U.S. law while abroad.
oly Cow! foreigners? aliens? Reasonable reading of that says the people in question are NOT to be granted citizenship.
No a reasonable reading is that the foreigners and aliens he is referring to are the "families of ambassadors...”. That is why that "scholar" felt the need to add the [or] to change the meaning of the sentence.
”No a reasonable reading is that the foreigners and aliens he is referring to are the "families of ambassadors...”. ”
No, it’s not. A reasonable reading is that it is a list. This is a much better case than I thought.
1) Well, considering the existence of case law and Lexus terminals, I am guessing that 95% of our attorneys (including a couple of former Presidents) would ALSO not be able to cite the antecedents and citations of these laws, so I join good company indeed by not knowing.
That being said, IIRC, there was a citation that the President was the final arbiter on all immigration policy, which has been used to exclude Jews (FDR) Chinese, Japanese, Communists, and even Slavic people. It was bandied about quite a bit during the debate over the ability of Trump to keep out Syrians, Yemenese, Iranians etc. Final arbiter is a pretty broad power.
2) Translation: You strict constructionist gun nuts are letting your hypocrisy show here. And you 'Living Constitution' types who are suddenly strict constructionists are just as bad.
The norm of consistency has been destroyed. Democrats don't like these new rules. And as a Conservative, I am quite content to be inconsistent.
3) Since Hawaiian judges and the 9th circuit have decided that 'we don't like Trump' is a suitable standard for stopping black letter law, no, I do not require the sign off of highly partisan Liberal Justices to support a Presidential EO. 'The Constitution is not a suicide pact', as one Justice famously said.
Further, as we saw with the 18th Amendment, many amendments are...ill considered or insufficiently defined. Loopholes are made...and abused. See Title IX for an incredible slew of examples in a single law.
So if you can find a right to murder children in penumbras in the 4th, I can certainly find the right to deny criminals legal protections and citizenship when they are trying to commit fraud through a loophole in the 14th.
I think political actions by political figures are ALWAYS driven by politics...AND.
Was Medicare and Medicaid about helping people OR just a big elaborate political scheme to buy the votes of minorities? LBJ had some words on that.
I prefer 'and'. Trump played politics AND he was bringing to light legal abuses and preference of the Democrats which needed to be addressed by a larger constituency than merely the media cheerleaders who stood in 'judgement' of such practices.
What is a border? What is a citizen?
Like 'civility bullshit' the term 'playing politics' means 'something effective and popular (or unpopular when I am doing it) that my political opponent is doing which I disapprove of'.
At the time (19th century), I would bet they were worried about invasion and occupation of US territory by foreign powers. It's actually conceivable that they might also be concerned about illegal immigration
The only problem with this argument is "at the time" there was no such thing as illegal immigration. If you made it to U.S. soil, you were a legal immigrant. Depending on your port of entry, you might be subject to a cursory screening to see if you were diseased or "feeble minded". Or you might just stroll across the border from Mexico or Canada and set up shop. Nobody would ask for your papers because very few people had papers.
A major consideration is the welfare cost and privileges accrued by anchor babies. Mommie gets to stay and raise the baby(s) here in the USA. At what point does this become cost efficient. As long as you are paying for it, she'll have more. My sister ran a landscaping crew whose (permitted) Mexicans men couldn't get their brains around why "she won't marry me". Nobody asks who is gonna pay for this stuff. Obama certainly didn't, and for the last 10 years we don't know where these people are, what they're doing or what it is costing. Pig in a poke works for dems, you foot the bill. More like your children will.
Is a child a 'citizen'?
To wit: if Trump said: any anchor babies born here will be given all rights, responsibilities and duties of a citizen when they reach adulthood, would that pass muster?
Responsibilities?? duties?? See here FIDO, you're oppressing them already!
I think the American mother establishes US citizenship but, I think the child has to spend time in the US before age 18.
You complain about me posting about things I don't know about and then you go and do it.
Here is the answer, and you are mistaken. If a child is born of an American parent, the child is a U.S. citizen (and a natural born citizen at that), provided that certain requirements (mostly paperwork) are met. I am sure there may be complications if the couple is not married and the father is the U.S. citizen. But you don't have to spend time in the U.S. You could have just looked it up at State Department's website
If you made it to U.S. soil, you were a legal immigrant.
Until 1882 and the Chinese Exclusion Act.
Is it true that the SCOTUS has never ruled on the application of the 14th to children of illegals?
Yes.
Donald has it in everybody's face. The discussion rages... at no cost to him.
”If you made it to U.S. soil, you were a legal immigrant.”
So illegal immigrants didn’t exist when the 14th amendment was enacted? Hard to make a case that the enacters sought to protect their rights to birth citizens.
"He's trying to unite the country in the wake of recent tragedy. He will be criss-crossing the country to do the same."
Who? Trump? Hahaha! He's already forgotten that any recent tragedy has occurred other than someone insulting him on social media.
Hard to make a case that the enacters sought to protect their rights to birth citizens.
Actually it is easy to make the case. There was concern that the states would deny citizenship rights to former slaves or their offspring (since slaves were not considered citizens before the civil war).
Yes, Freder, their concern was to protect the rights of former slaves. That’s not the class of people we are dealing with here. That class of people didn’t even exist then.
I admit, I find the left's new-found respect for the actual words written in the Constitution quite refreshing.
Actually it is easy to make the case. There was concern that the states would deny citizenship rights to former slaves or their offspring (since slaves were not considered citizens before the civil war).
The argument is that they were putting a nail in the idea that former slaves AND THEIR OFFSPRING were citizens.
The idea was not 'let us make a loophole for immigrants to exploit to bypass our legal system'.
Your argument is unpersuasive.
A question that should be posed to the left is why do you want the US to grant citizenship to illegal aliens?
The beauty of President Trump is his EO is not the goal. His goal is to force the left to yell at the top of their lungs that anchor babies are a constitutional right. That our Great Nation will fail if the govt does anything to hinder the abilities of illegal aliens to come here, and drop a baby in the dust.
Can anyone come up with any scenerio that the United States, as a Nation, needs birthright citizenship? Conversely, the harm of outlawing the same?
Ted Cruz was made a citizen through right of blood (Jus sanguinis), as one of his parents was a citizen. In this case the child is automatically naturalized. Their registered birth is recognized. So Ted Cruz is not a natural born citizen, he is a naturalized citizen.
My mother was naturalized, but not automatically. She had to go to school to learn English and pass a test that was only written in English. It took her two years, as she had children to take care of.
This birthright without a parent being a citizen bullshit is just a scam, and I don't think it should apply to anyone except slaves brought here against their will, and having children from their masters or other slaves.
There was concern that the states would deny citizenship rights to former slaves or their offspring (since slaves were not considered citizens before the civil war).
That might be the reason the "States" was mentioned. Of course, Reconstruction was so harsh that the KKK and the white "lost cause" types, like Senator Byrd for example, did deny voting rights on a local basis.
If Lincoln and Sherman's approach had been used instead, we will never know.
You complain about me posting about things I don't know about and then you go and do it.
I said "I think asshole" and did not look it up. I actually think the topic was if the mother was NOT a citizen but I am not going to bother with you anymore.
It would be good if you did more of that.
Can anyone come up with any scenerio that the United States, as a Nation, needs birthright citizenship? Conversely, the harm of outlawing the same?
It is not a question of whether birthright citizenship is or is not a good idea (many countries have ended birthright citizenship for non citizen parents). The question is whether you acknowledge that birthright citizenship is enshrined in the Constitution and requires a constitutional amendment to end it.
For what are supposedly a bunch of textualists and originalists, you sure have a hard time accepting the plain language of the Constitution.
”For what are supposedly a bunch of textualists and originalists, you sure have a hard time accepting the plain language of the Constitution.”
The language is not plain.
The Amendment is NOT "plain language" otherwise it would have the word "Negro" in it somewhere in the sentence. It is legal mumbo-jumbo in order to get it ratified.
I think the American mother establishes US citizenship but, I think the child has to spend time in the US before age 18.
I said "I think asshole" and did not look it up.
And my point is that you accuse me of commenting on things I know nothing about yet you obviously do also.
And it was a pretty easy thing to look up. All I did was google children of U.S. citizens born overseas and there it was. Actually I already knew the answer but wanted to have documentation, because I know what an asshole you are.
"Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, had this reaction:
“The president cannot erase the Constitution with an executive order, and the 14th Amendment's citizenship guarantee is clear. This is a transparent and blatantly unconstitutional attempt to sow division and fan the flames of anti-immigrant hatred in the days ahead of the midterms.” "
Birthright citizenship of illegal aliens is not clear at all. It is an undecided question. The ACLU should welcome Trump's move. More donations. More lawyer fees. Let SCOTUS decide this.
And when was it unconstitutional to start conversation about an unsettled question of constitutional law?
Bottom Line: Birthright citizenship was a tool to populate the west.
We don't need to do that anymore.
Not sure how you can make an appeal to originalism when the class of people in question did not exist at the time the amendment was written.
Look at how the president makes something out of nothing. Prior to this week, it was just established knowledge that there wasn't much to do about immigration and anchor babies, etc. Everybody knows it's a tricky problem.
Poof, Trump gives an interview where he just mentions he might sign an EO to do away with the practice and immediately it consumes the news cycles. Bringing the caravan back into the news cycle right before the midterms.
Meanwhile he has a new negotiating tool. Hasn't signed the EO yet. No court case winding its way to the conservative majority SCOTUS. Maybe he doesn't issue an EO. Maybe this gets resolved in legislation instead? And meanwhile the media takes it to 11 and calls him Hitler.
What does Trump gain? What does he lose? As I see it he gains a lot, worst case he loses a little pride if he's overturned in a SCOTUS case several YEARS down the road. Fair trade.
Is there anybody that could honestly say that they thought on Sunday that this would be the topic of conversation on Tuesday.
He has re-written the rulebook.
Come on Freder. Let me hear you whine and cry.
Mongol General: Wrong! Conan! What is best in life?
Conan: To crush your enemies. See them driven before you. And to hear the lamentations of their women.
Mongol General: That is good! That is good.
Freder, I said I was going to let up on you because you are such a pussy but this is too much fun.
In other news:
https://mobile.twitter.com/jimgeraghty/status/1057354986047356928
However, before deciding whether someone is a citizen based on acquisition, you need to check on the law that was in effect on the date of the child’s birth. The laws governing whether or not a child born outside U.S. boundaries acquires U.S. citizenship from his or her parents have changed several times, and set different requirements for the passing on and retaining of citizenship.
Most laws regarding acquisition of citizenship require that the parent, the child, or both have spent some time living in the United States (had "residence" there). Sometimes the residence is required to have been for a specified length of time (such as five years) and sometimes it is not. When the law doesn’t say exactly how long the residence period must have been, you can assume that even a brief time, such as a month, might be enough, depending on individual facts and circumstances.
The key element is often not the amount of time spent in the U.S. but whether or not you can convince U.S. Citizenship and Immigration Services (USCIS) or the State Department that the parent had established a residence in the U.S. and wasn’t just visiting. If the stay meets the characteristics of residence, the exact length of time doesn’t matter.
Below is a brief summary of the laws in effect during different time periods.
Freder you pussy.
narciso, we knew he was sending them back to the fight at the time.
Still, we should have been out of Afghanistan ten years ago.
...you accuse me of commenting on things I know nothing about yet you obviously do also.
Michael K. said that Craig Venter discovered the human genome.
Michael K. said that Craig Venter was the first to decipher or decode human genes.
When pointing out that he was wrong on both counts (and had months in between posting each error to correct himself - on a topic he pretends to enjoy learning much about) he twisted like the pissy pansy that he is and resorted to the typical phony protests: You work at McDonalds! You failed molecular biology!
Michael K. is a stupid, whiny twat. He probably couldn't even manage to get his nursemaid's titty properly into his mouth.
Actually, I shouldn't second-guess Michael K's adeptness at the suck reflex. It seems it's one thing he may actually be good at.
Freder you pussy.
So you were correct for the specific case of children born between 1934 and 1941 where only one parent was a U.S. citizen.
Congratulations. I am so stupid.
The question is whether you acknowledge that birthright citizenship is enshrined in the Constitution and requires a constitutional amendment to end it.
Birthright citizenship is not enshrined in the constitution, for children of illegals. That is a current interpretation. The lawmakers that wrote the amendment make clear in their debate, that the parents had to be subject to the jurisdiction of the United States, and lists a couple of examples. The Text was edited, to make clear of their intentions. A Presidential Executive Order, would be a directive to the appropriate agencies that a shift in the interpretation is how the agencies will move forward. Congress also has the ability to way in on the interpretation.
Michael T K. knows about birthright citizenship acquired by jus sanguinis. That's because he remained American despite being born in a sewer.
He is the King of the Drainpipe. All hail the King of the Drainpipe!
Oh no. A Michael T Kennedy thread!
Anybody smell anything ?
This guy disagreed with the idea that the language of the 14th was "plain":
"In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision."
That was quoted in the Wong Kim Ark decision which determined that a child born in the US to legally resident aliens was a citizen by virtue of the 14th and based that decision largely on an interpretation of "jurisdiction" that relied on the history of English common law.
The sticky point there is that Wong's parents were present in the US long term and legally under the laws of the time and that was factored into the decision which found that the parents were "subject to the jurisdiction" of the US.
The matter is unsettled and will remain so until it is pushed up to the SC. An XO would do the pushing.
Also, Althouse, I'm not so sure that Trump "announced" this. Discussions related to the XO were leaked to a reporter and the leak was sprung on Trump in an interview.
Also, I ain't taking no fucking test. Been there, done that, not going back.
yes, I don't know the solution, there, but stocking their top executives staff, doesn't seem to be the smartest move, rowan farrow, seemed so impressed over the negotiating team based in Qatar,
Anybody smell anything ?
I smell Michael K's Depends undergarments.
is his reading compression that incoherent,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3068906/
...birthright citizenship acquired by jus sanguinis.
No, no, brush up on your Latin...
soli = soil
sanguinis = blood
Re: Freder Frederson:
The only problem with this argument is "at the time" there was no such thing as illegal immigration. If you made it to U.S. soil, you were a legal immigrant. Depending on your port of entry, you might be subject to a cursory screening to see if you were diseased or "feeble minded". Or you might just stroll across the border from Mexico or Canada and set up shop. Nobody would ask for your papers because very few people had papers.
US had an open border policy at the federal level at the time. But lots of countries did not (e.g. basically every country in Northeast Asia). And even in the Western world, many countries had restrictions on immigrations (e.g. through colonization laws).
Although it is often said that the US had no immigration laws until the Chinese Exclusion Act in the 1880's, I don't think this is actually true. At minimum, immigration was regulated at the state level. For example, since 1824, New York has had a number of laws directed at regulation of immigration, many of which ended up in front of the Supreme Court. The basic framework evident from the Supreme Court cases is that immigration was constrained by imposing either on immigrants or on persons transporting immigrants to the US reporting requirements and fees (to pay into a general fund to defray the costs of caring for indigent immigrants), with hefty penalties for evasion. I can't actually find (on brief googling) a copy of the New York statute as it existed in the mid-19th century, but the 1875 case Henderson v. Mayor of the City of New York suggests that in addition to the reporting and fee structure, there may have been provisions directed at excluding vagrants and criminals from entering New York, at least via its ports.
Furthermore, in the 18th century up through the 19th century, it's clear that cross-border settlement was an issue of significant concern to the powers active in the New World. In the 19th century, concerns about American settlers in British territory and vice versa in the Pacific Northwest led to a series of border disputes and treaties. The basic conceptual model, whereby countries sort of took responsibility for border violations committed by their citizens/subjects is also apparent back in the 18th century, where under the Proclamation of 1763, American colonists were prohibited from settlement in Indian territories west of the Appalachians.
Long way of saying -- it's correct to say the modern model of immigration laws didn't exist in the US until the late 19th century. But I think it's a misleading oversimplification to suggest that there were no immigration laws at all (or to go further and suggest there was no regulation of immigration).
It seems to me that it's a sign of what's wrong in our system that there is not an obvious answer to this.
It's classic Trump. This is a negotiation.
He's telling us he already owns the moon.
When a court and Congress say he can only claim half the moon, that's a win.
narciso, it's a waste of time with some people.
Especially sociopaths.
I do this for the rest of the class, it's a reasonably thorough precis,
If people born overseas to an American mother are US citizens then why would people born here to foreigners be US citizens?
Re: DavidD:
If people born overseas to an American mother are US citizens then why would people born here to foreigners be US citizens?
First, because passing citizenship on to your children is a valuable perk, so we decided to give it to ourselves (or our representatives did so on our behalf). But also because the developed world is almost entirely jus sanguinis. American-style jus soli is a distinct outlier. If children of American mothers overseas weren't eligible for US citizenship, you could conceivably end up with a bunch of stateless persons who are children of American citizens. And their American citizen parents would probably find that rather unfortunate.
DavidD said...If people born overseas to an American mother are US citizens then why would people born here to foreigners be US citizens?
The USA has both "automatic naturalization citizenship" or blood citizenship, and "natural born citizenship" or birthright citizenship. The only other way is "naturalization citizenship" which is not automatic, and is performed in a ceremony to welcome the new citizens to their adopted country.
By allowing birthright citizenship to tourists and illegals, is the definition of a corrupt government.
I don't see any good argument that the president has the legal authority to determine the meaning of "subject to the jurisdiction thereof." I didn't think President Obama had the legal authority to grant relief to the children of illegal aliens, either. I can see a decent argument that Congress can do that (it did so in 1924 when it passed legislation extending US citizenships to native Americans). Let President Trump propose legislation if he really wants to change this. I'd oppose that, however, and I suspect it would not pass either branch of Congress even if the GOP retains control of both chambers.
mockturtle said...
Is it true that the SCOTUS has never ruled on the application of the 14th to children of illegals?
Yes, that is true. It is also true that the SCOTUS has never ruled on me proclaiming myself the Queen of England.
The birthright clause was intended to overrule Dred v. Scott and give citizenship to black Americans. There was no discussion at the time what "subject to the jurisdiction thereof" meant with respect to immigration since the US didn't regulate immigration in those days. The phrase has consistently been interpreted to exclude the children of diplomats, the children of invading foreign soldiers, and children born on foreign-flagged vessels passing through US waters. The latter pretty clearly were "subject to the jurisdiction of the United States" since vessels and their crew and passenger in US waters can be arrested and charged under US law for violations of US law , but nonetheless they were not deemed "subject to the jurisdiction." Native Americans were not deemed subject to the jurisdiction of the US even though US federal law is and has been supreme on tribal lands. Congress had to extend citizenship to native Americans by statute in 1924, an act which supports the view that Congress can interpret the "subject to jurisdiction" clause.
Where in that link did it say what Michael K. said about how Craig Venter "discovered the human genome?"
I mean, I know he soiled his Depends undergarments convincing himself otherwise, but that doesn't make it true.
And it doesn't make me sociopath, either! Grow up, Nursemaid Boy! Grow some hair on your eighty-year old chest!
Douglas said...
I don't see any good argument that the president has the legal authority to determine the meaning of "subject to the jurisdiction thereof."
Someone has to have the authority. Congress has never defined it. They could. Article 1 Section 8 powers of congress: To establish an uniform Rule of Naturalization, . Congress has never defined who is subject to the jurisdiction thereof. The Supreme Court has never addressed the issue fully. They did rule that legal immigrants are. The law has simply been agency interpreted to include children of illegal aliens. All government institutions are run by the executive branch- The President. He has the authority to change the interpretation over the objections of unelected bureaucrats. Congress has the power to step in and define who is subject to the jurisdiction thereof if they don't like the President's definition. Or the courts can once again overstep their bounds and override any decision the President or Congress makes on the matter. The matter is unsettled and has actually been the subject of debate for some time.
As I said earlier in the discussion, a common sense definition would include the Supreme Court decision, lawful aliens here with permanent legal residency. But not students on temporary visas, not Chinese women here on a birth visit, not random vacationers who happen to go into labor, but citizens and lawful alien permanent residents. And definitely not children of aliens here unlawfully. Congress could also include residency requirements. For example, children born here must be resident in the US for 16 of their first 18 years. If lawfully present parents send their offspring off to another country for all their education- they're not being brought up as citizens.
1. The President can end birthright citizenship because by the Constitution he is the sole executive of the land. Congress, and the courts, have not acted on this issue so the interpretation of the Jurisdiction clause of the 14th Amendment can be defined by that executive power via an executive order. If the Congress or Courts do not act within Trump's terms in office, he can define for the Executive branch how they will act with respect to citizenship. If Congress acts by statute defining under what terms children born on U.S. soil of illegal immigrants under the jurisdiction of other countries then the President of the United States would be required to uphold that statute.
2. The President is the Executive and has the power to make rules for how the Executive branch operates under his term.
3. I believe there is a good chance that the court would accept this argument but that is far from certain. The text ofthe 14th Amendment clearly does not grant birthright citizenship because the jurisdiction clause is not just wasted random words thrown into the amendment. The conservative justices would give a lot of weight to that text and the interpretation of the text from the Framers of the Civil War Amendments. But you never know. Justice Roberts might feel obliged to stand in the Anthony Kennedy role on the Court in this matter because it would be such a significant social change (for the better) that will upset many people who follow their emotions rather than the law. While there is obviously some political motivation, it is a legitimate policy issue as are other factors of immigration such as chain migration and DACA.
I believe that Congress should act upon the matter myself as part of a comprehensive immigration reform package, liberalizing immigration flow for work visas, eliminating non-work immigration such as chain migrations, determining rules of conduct and economic conditions for migrant workers, improving the work eligibilities and verification systems, addressing requirements for asylum and refugee status, stream lining all immigration paperwork and process, including that of deportation, addressing border security and reviewing the sentencing for those that violate our border laws, improving both our border security and interior immigration control, and addressing DACA and other paths to citizenship for deserving individuals such as those that volunteer for the U.S. military service. There is a lot of room for bipartisanship on these matters, and Trump has already offered that branch which the Democrats unwisely refused, and there are a lot of solutions for the coutnry in immigration reform that will make the United States a much stronger nation.
Something to mention. It's already been mentioned that children of foreign diplomats who are born here aren't citizens under the 14th Amendment because the diplomats are not subject to the jurisdiction thereof.
But there are other cases where children born in the U.S. are not citizens. There are foreign servicemembers in the U.S. Sometimes with spouse. They do not have diplomatic immunity. If they break a law, U.S. courts can try them. If they have have children while here their children are NOT U.S. citizens, as they are not considered subject to the jurisdiction thereof. They owe fealty to another nation.
Foreign flagged merchant ships pass through U.S. waters all the time. Sometimes stopping here, sometimes not. While in U.S. waters, whether or not they're making a port call, they're under U.S. jurisdiction, and can boarded by the USCG. Without warrant or probable cause. If a child is born to a non-citizen on board one of these vessels while in U.S. waters, the child is not a citizen. I suspect the same also applies to foreign aircraft.
So subject to the jurisdiction thereof isn't as much of a clearcut concept as some think it is.
Best comments on this thread: Dave Begley.
The 'interpretation' of birthright citizenship seems to be a holdover from the 60's and 70's, when the Democrats were the ones doing the interpretation.
This is no longer the case and has not been the case for decades.
We tried in 86 to come up with a compromise and the Democrats welched.
Well, now we get to have a NATIONWIDE conversation...and the Democrats are on the unpopular side of that conversation.
They are not used to this. They are 'the cool kids'. But no one else thinks they are so cool anymore. Now they look stupid and dangerous...and that is not a good look for anyone.
"Althouse, you are framing the question the way YOU would expect it to be contested. If I was Trump, I would frame it as a national defense issue: America is being invaded by persons who do not mean us well and it is the President’s job to defend against invasion. Framed that way, he clearly has the power to stop the invasion."
That's false framing. First, we're not being "invaded," and it's not a national defense issue: the number of illegal immigrants entering our country has declined over the past decade or so. Second, they're fleeing here seeking escape from dire circumstance where they were. They don't harbor ill will against the U.S. or its citizens...they want to become part of it!
This is BS shorthand designed to self-refute. It is MSNBC-level stupid.
It's a literal interpretation of the word "person." Clearly you're not a biologist if you're arguing a corporation is a member of homo sapiens.
SCOTUS said in Citizen's United that PEOPLE do not give up their right to free speech when they form a group.
The claim that a corporation is not a person has nothing to do with free speech. Idiots might make that argument, but I'm not an idiot. The First Amendment clearly strips Congress of any ability to censor anyone. When leftists argue that Congress can censor corporations, I want to start listing corporations: New York Times, Amazon, Google, Disney, Twitter. Etc. Etc. The idea that Congress can censor the New York Times is preposterous on its face. Whether or not they have incorporated is utterly irrelevant.
A corporation is a group of PEOPLE.
That's glib and stupid. A corporation is a legal fiction. It's created by lawyers in a room. Corporations aren't born and they don't die. Corporations don't have hearts, lungs, hands or feet. Corporations don't have feelings, don't write love letters, and have never laughed, not once. A church might incorporate, but a corporation has never gone to church. Corporations don't cry. I understand that Republicans like corporations, because they make money and pay taxes. But I'm of the opinion that humanity is way bigger than money.
And can I say that Republican who get furious at me for denying the humanity of corporations always manage to say zippo about denying the humanity of babies. Why don't you shout about baby murder for a while and quit worrying about those poor oppressed corporations.
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