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:
1 – 200 of 333 Newer› Newest»You can answer most of those questions yes or no, and it's fine to think about the questions and just give an honest yes or no, but you don't get credit on an exam for merely saying yes or no.
30 countries of 194 have birthright citizenship
https://www.worldatlas.com/articles/countries-who-offer-birthright-citizenship.html
It will be challenged by the usual federal judges and go to the USSC.
I expect that was his intention. The Caravan is probably part of his motivation.
This is an old story. When I was a resident at LA County hospital, the well baby clinic had a bus running from Tijuana for mothers and babies who lived in Tijuana. The babies were eligible for Medicaid. That was over 50 years ago.
1. No
2. No
3. No and Yes and No and Yes
that pop quiz was so easy!
Chinese Birth Tourism - Feds Raid
https://www.newsweek.com/feds-raid-maternity-hotels-birth-tourists-777643
I'm trying to find a reliable legal website that addresses the right of the president to end birthright citizenship by executive order.
So far haven't found one.
You got a reference, anybody?
1. No.
2. No.
3. That's four questions! There are three questions just in the first sentence!
No. Not applicable (I don't support it). No. Yes.
No, no and no, but it's time to start thrashing this out and finding out what is the way to end birthright citizenship.
Our Mexican business partner bought his pregnant wife to US
so his daughter would be born with dual citizenship.
1. constitutionally, the President can issue ANY executive order he wants; it is up to the courts to say it's not
2. any alien born in a 'sanctuary city' is no subject to the jurisdiction of the United States, and thus: IS NOT A CITIZEN
3. No, No, Yes
clamping down on immigrants and immigration....
Only the TRUTH from the New York Times, only the truth... It's almost as if they consider illegal immigration to be exactly the same as legal immigration. In answer to your question though, I don't see how a "strict constructionist" could find for Trump. Much as I wish he or she could, since I would like immigration to once again come under largely lawful control.
1. I believe the argument surrounds the text "subject to the jurisdiction"
2. An illegal parent is not subject to the jurisdiction.
3. I have no clue if the argument will be accepted.
No I have not read anything about it yet. This is based on a conversation I had with someone else in real life.
1) No
2) No
3) No
And this midterm was supposed to be hard?!?
"any alien born in a 'sanctuary city' is no subject to the jurisdiction of the United States, and thus: IS NOT A CITIZEN"
That's a good one.
An illegal parent is not subject to the jurisdiction.
In practice no, in theory, they are.
4. For the math portion, please write an algorithm that will detect the court's decision.
...but you don't get credit on an exam for merely saying yes or no.
Then the exam questions were incorrectly worded. Or the exam instructions should have included that information. I read through the entire exam, and answered the questions that were asked correctly.
Or is this a meta-conlaw exam, where I have to see the emanations from the penumbrae of the questions, and answer those as well?
Wait, do you mean to say Trump is not a King and can't just change the Constitution with a wave of his orange-colored hand? Well paint me gold and call me Oscar.
Deport the parents when they apply for a birth certificate.
Let them take the kid with them if they want to.
Do it enough and they'll stop trying to get certificates. Problem solved.
Saint Croix, read my first comment. You would be scored F on a real law school exam.
Althouse asks the right questions in (3)
This move is tactical.
1. Yes: As far as any Executive Order can go on constitutional issues, it's application goes to rival interpretations that have not yet been settled by SCOTUS, like this one.
2. Yes: EOs, in my opinion, have always been a gray area. But my Originalism takes from the Senator sponsoring the 14th Am. that this applies only to children of LEGAL residence/presence.
3a. <50% chance, but they haven't examined the issue in 120 years, so some finality would be nice.
3b&c. This is obviously more about winning the political case than the legal one, so B is irrelevant. That doesn't make it wrong, as the "bully pulpit" is a Presidential prerogative.
"That's four questions! There are three questions just in the first sentence!"
It's the much-loved "multi-part" question.
Whatever they did to the Tenth Amendment should do the trick!
Blogger Unknown said...
Our Mexican business partner bought his pregnant wife to US
so his daughter would be born with dual citizenship.
My next door neighbor did the same thing in reverse. His wife had her baby in Mexico City as Mexico does not "naturalize" anyone, especially Americans. He did a lot of business in Mexico.
"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."
So much of what he does seems to be aimed at ginning up outrage that will force us to demand that the House and Senate actually do their jobs. Is he trying to build outrage about illegal immigrants in this move or is he trying to build outrage against executive orders?
Thanks to the Prez for picking the fight, regardless whether he has the authority or not.
I think it is a brilliant move. People are fed up with illegal immigration.
1.) Since the 14th Amendment was adopted right after the Civil War with the intention of making all the freed slaves who had been born in the US, whose families have been in the US for generations, and those who were brought here involuntarily retroactive Citizens, it made sense at the time.
2.) And since in those days we didn't have enormous waves of people entering the country daily. It was much harder logistically to immigrate. In fact at a later date the US did institute some immigration policies
3.) AND SINCE there was no welfare state at that time to bleed the current citizens dry and be a huge magnet (as it is today) to draw people to come and get the free goodies. If you immigrated, you were on your own or depended on the help of families, charities, churches. Not a bucket of free goodies that are often MORE than the people paying the freight can afford for themselves.
Therefore It is about time that the system be refined and fine tuned for today's realities
If you are here LEGALLY, in the process of becoming a citizen..... Not just temporarily here and have no plans to ever become a citizen or just stepped across the border and squirted out a kid.....then the children you have WHILE BECOMING A CITIZEN should also become citizens. It can take several years to go through the process, so that would only be fair and correct.
Y'all should be thankful that I am not Queen of the World and thank Trump for being so very nice :-D
It's a damn fine (and tough) exam question about birthright citizenship.
You start with two broad questions:
1. Is X Constitutional?
2. Is X a good idea?
Many people answer the second, and then transpose it into the first.
Example - is it a good idea for pregnant Tijuana mothers to illegally enter the USA to give birth, so that the babies can be a US citizen, even though the mothers and fathers are not? Hell no.
But there's that pesky plain reading of the 14th Amendment - "all persons born ...in the US....are citizens..". Ain't a baby conceived in Tijuana bu later born in the US a "person" too?
Can we apply the Roe v Wade standard which denies "personhood" to unborn babies to all deny "personhood" to Tijuana babies born from illegal immigrants?
In the hierarchy of government rule making, we have:
1. The Constitution
2. Congressional Law
3. Executive Order
There is something unseemly about de facto amending No. 1, via an Executive Order (No. 3). But didn't Obama kinda sorta do this with his mighty pen via DACA, and a buncha pliable federal judges who upheld it?
It's all so confusing. The truthful answer is, I have no f%#ing idea, so I will take my C+ and like it!
My C+ answer is ...
I have a tummy ache. May I take the test tomorrow?
OMG! our Professor noticed me, Again! {Blush}
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."
The key to the square is the words 'to the best of my Ability'
Sometimes, to save a village, you have to firebomb it to the ground
or, In the Immortal words of Bart Simpson...
“I can’t promise I’ll try, but I’ll try to try.”
Take a midterm?
I'll pass.
Via Insty: https://threadreaderapp.com/thread/1057214626075680768.html
I wonder if they can find a penumbra somewhere?
Or maybe, as has been done recently, they could simply ignore the text and declare "Common Sense Wins!"
From the link posted by prairie wind:
More likely #SCOTUS could distinguish from Wong Kim Ark on the facts. Wong’s parent were authorized or we might say legal immigrants. Their presence in the US was authorized. Wong Kim Ark did not directly address the status of children born to unauthorized immigrants.
It will go to the Court and we will see.
I would take away "Naturalization" altogether and just retain birth-right or "BORN IN THE USA"
which is where this is likely to end up.
Trump is setting up amnesty without path to 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."
Clearly the Founders did not anticipate that one day the President of the United States would wield both a cell phone and a pen.
If conservatives took the same activist approach that liberals take, this would be a no brainer, and law professors would only exist to teach students how to frame rationalizations. Which, come to think of it, is pretty much what they do.
DBQ says "If you are here LEGALLY, in the process of becoming a citizen..... Not just temporarily here and have no plans to ever become a citizen or just stepped across the border and squirted out a kid.....then the children you have WHILE BECOMING A CITIZEN should also become citizens. It can take several years to go through the process, so that would only be fair and correct. "
SO, if you're here Illegally, you not subjecting to the jurisdiction of the United States, and thus:
ARE NOT A CITIZEN
I believe SCOTUS would invalidate this EO unanimously.
The Left Justices because they believe in unfettered immigration, the Right Justices because the 14th’s language is plain and unambiguous.
you don't get credit on an exam for merely saying yes or no.
oh man! zero on the pop quiz
here are last minute essay answers, sorry teach
1. The argument is that the words and subject to the jurisdiction thereof would disqualify babies born to people who are hear illegally. See here.
2. No, because only Congress has the authority to write new laws. Before you even try to introduce novel interpretations of citizenship, you have to explain how this text justifies that assumption of power. Bring back the non-delegation doctrine! Destroy the administrative state! And so forth and so on.
3. It would be nice for judges (and Justices) appointed by Trump to slap down something stupid, thus reasserting judicial independence. And this is an easy one. Executive orders should never be controversial because executive orders are, from a Constitutional perspective, weak sauce anyway. You want to challenge the Constitution, the Congress should pass a law and the President should sign it first. This is Obama all over again.
@Michael
Welp, LA saved transportation costs by moving Tijuana to LA, so there's that. /sarc
Wong Kim Ark did not directly address the status of children born to unauthorized immigrants.
And therefore Trump would be doing the Constitution a favor by offering the Supreme Court the opportunity to clarify the Fourteenth Amendment for future generations.
Is there anything Trump can't do?
On Sunday, a new wave of hundreds of migrants heading toward the U.S. attempted to force their way over Mexico´s southern border. Violence erupted, leaving one of the migrants dead after what the group says was a rubber bullet fired by Mexican federal police struck him in the head. Mexican authorities, however, deny that their security forces are to blame. The incident took place at the border near Tecun Uman, where the group of migrants "broke through border barriers," as
You would be scored F on a real law school exam.
I don't think anyone cares because the penumbra of ethereal emanations.
but it's time to start thrashing this out and finding out what is the way to end birthright citizenship.
The only way to end birthright citizenship is to amend the constitution (assuming the Supreme Court is serious about originalism and textualism). The language of the amendment couldn't be clearer. You can not contend that persons not in the country legally are not subject to the jurisdiction of the U.S. (which at the time of the amendment meant many Native Americans and diplomatic personnel). Now it means only diplomatic personnel.
The argument is that the words and subject to the jurisdiction thereof would disqualify babies born to people who are hear illegally.
That is ridiculous. That would mean if you were here illegally you couldn't be deported or arrested.
If conservatives took the same activist approach that liberals take . . .
As Dylan said, "It used to be like that, and now it goes like this"
LA saved transportation costs by moving Tijuana to LA, so there's that. /sarc
True. The illegals wrecked the LA County hospital which, when I was there, provided pretty good care for the poor.
First, it was badly damaged by Medicaid in 1965 which refused to pay for county hospitals. They ended up with "Medicaid Mill clinics."
I knew guys who quit residencies in 1966 to set up clinics like this. They made a lot of money.
Then came the flood of illegals.
On a real law school exam, I would have added "Explain." at the end of a question that was phrased as a yes-or-no question. I wouldn't leave that pitfall, but can you imagine sitting down for a 3-hour exam, reading questions, noticing that they're all yes-or-no, putting down only yes or no for each, and planning to argue your case to the professor afterwards, staking your grade for the entire course on the hope that the teacher would think you did it exactly right and reward you?
That would mean if you were here illegally you couldn't be deported or arrested.M
And Freder complains about "Vile accusations."
Jeez Freder, anybody could do better than that.
Trump's the voluntary vanguard. (I'll take the last question first, please.) If he gets his ass kicked by public opinion about this, Congress does nothing. If he gets applause, Congress will grow a spine and do something that can last and pass muster.
Blogger again.
2.) And since in those days we didn't have enormous waves of people entering the country daily. It was much harder logistically to immigrate.
Immigration from 1900-1909: 745,100
Immigration from 2000-2009: 1,029,900
That 745K is immigration to a country with 92M people (1910 census). I'm not sure the logistics were harder. There many shipping lines dedicated to selling space to immigrants. if you include legal hurdles, the logistics in 1900 could well have been easier.*
That 1M is to a country with 326M people.
Now This chart is really interesting. It suggest that the bulk of net illegal immigration in the US happened between 1990 and 2007 and that since then there has been no net increase. That's totally different reality than what Trump is focused on.
This chart show that in the last 10 years there are roughly 300K to 500K illegal immigrants being returned or removed each year. That seems to be enough to offset other increases. It certainly dwarfs the size of one random caravan.
* * * * *
*Details from Ellis Island National Park:
Since all steerage tickets were sold without space reservations, obtaining a ticket was easy. Principal shipping lines had hundreds of agencies in the United States and freelance ticket agents traveled through parts of Europe, moving from village to village, selling tickets. After 1900, in addition to a ticket, however, immigrants had to secure a passport from officials in their home country.
For many, simply getting to the port was the first major journey of their lives. They would travel by train, wagon, donkey or even by foot. Sometimes travelers would have to wait days, weeks and even months at the port, either for their paperwork to be completed or for their ship to arrive because train schedules were not coordinated with sailing dates. Assuming their paperwork was in order and tickets had been purchased, some provision was usually made for the care of the emigrants waiting for a ship. Steamship companies were required by the governments to watch over prospective passengers and, at most ports, the travelers were housed in private boardinghouses. Some port cities even boasted their own “emigrant hotels.”
I think the birthright citizenship goes back to the original Constitution and the 14th Amendment is irrelevant.
I would hate to see the birthright citizenship principle be abandoned. The "anchor-baby" thing is quite another matter; that is just "policy" dreamed up by the State Dept. and ought to be eliminated forthwith now that it is being so grossly abused.
As for the oath of office question, There is no telling what some President may take it into his head his office gives him the power to do, so it indeed comes down to the Supremes telling him whether he can do that or not.
And then we have such things as Dred Scott, Plessy v. Ferguson, Korematsu, and Roe v. Wade that show the Supreme Court changes through time though the Constitution remains the same.
Trump has presented a win or win situation.
Either
A) he's successful in deterring illegal immigration (he doesn't need to be truthful to people outside the US about their rights)
Or
B) he get's Democrats to make the argument for constitutional originalism.
Either way, he wins.
Confining his approach to constitutional law is missing the point.
For the record, I'd have to look back the legal argument. It's very fuzzy in my memory and it would not be the approach I'd appt to other ConLaw arguments.
Freder Frederson said...
The argument is that the words and subject to the jurisdiction thereof would disqualify babies born to people who are hear illegally.
That is ridiculous. That would mean if you were here illegally you couldn't be deported or arrested.
10/30/18, 8:08 AM
-------------
That's pretty weak. We arrest foreigners all the time. This speaks to citizenship exclusively.
The amendment clearly states their is an exception. I know a lot of people want to ignore it but it means something. What do you think the exception's for.
Sorry Professor , I’m fresh out of little blue books.
You don't need to be a legal scholar to understand why Amendment XIV was ratified in 1868. It was solely used to legitimize former slaves and their children as citizens of the USofA. It has absolutely nothing to do with illegal immigrants having their children here.
Get your pen and paper out POTUS Trump and EO this shit.
p.s. The initial numbers I listed above are for legal immigrants, from Wikipedia's article on immigration. That's what I searched for numbers for illegal immigration and found the other charts.
You don't need to be a legal scholar to understand why Amendment XIV was ratified in 1868. It was solely used to legitimize former slaves and their children as citizens of the USofA.
Does that mean the equal protection clause doesn't apply to you? White guy?
Can you square [RoevWade or gay marriage], with the oath of office:
Quaint. So now liberals are back to strict construction. Trump is a genius.
Althouse writes tough exam questions.
The legal argument lies in the statute that Congress passed sometime around WW2 that made Native Americans citizens. As members of a sovereign nation inside the United States, Congress did not consider them citizens under the 14th Amendment and therefore the law had to be passed. Many Indians before that time were born in hospitals on US territory. For example, many members of the Omaha and Winnebago Tribes were born in Omaha, Norfolk and Sioux City hospitals.
The clear conclusion of Congress before the statute was passed was that Indians - even those born on US soil - were not fully subject to the jurisdiction of the United States under the 14th Amendment. Congress did not undertake an unnecessary act with the passage of that law.
Bay Area Guy raises the policy issue. There are "hotels" in CA that cater to rich women from China, Hong Kong and Singapore. They fly into the US about 2 months before their due date and give birth here for the express purpose of obtaining US citizenship for their babies. Same deal with rich Central Americans flying into Atlanta and Miami. That's crazy.
It is a close question as to whether Trump can do this by EO. I think he can because SCOTUS has never ruled directly on the issue and the Executive Departments have adopted birthright citizenship as a policy. An EO can change Executive policy. A statute could be passed later.
And, of course Ann, this is all political. Trump is forcing the issue. CNN and MSNBC were foaming at the mouth this AM. One guy, "It is Trump vs. the Constitution and the Constitution will win." That smart ass is wrong because it is the exclusive province of the Supreme Court to say what the law is and the law is currently unsettled.
Prof. Althouse: What's my grade?
There's a good chance Trump is doing this for the politics. Generally speaking, the immigration issue helps him with lots of people, not just his "hard core," and it does not hurt him as much as Dems had hoped with Latinos. Trump hasn't actually done all that much about immigration, but I think it is very much to his credit that there is a real debate underway about many things: a wall, sanctuary cities, e-Verify, possible restrictions on visas, a strictly enforced points system for immigration, migrants and their children, etc. It's hard to believe even a small part of this debate would be taking place had it not been for Trump's election.
On the constitutional arguments, I've been impressed by Michael Anton's and Ann Coulter's arguments. There's no good reason why any country would grant automatic citizenship to children of illegal aliens who happen to be in the country. Several countries in the Americas do this, but otherwise it is mostly shithole countries that do it.
As for children born to legal immigrants or resident aliens, it is probably appropriate for the Supreme Court to re-consider and/or clarify Wong Kim Ark.
We arrest foreigners all the time.
Exactly, because they are subject to the jurisdiction of the U.S.
assuming the Supreme Court is serious about originalism and textualism
they say corporations are persons and babies are not-persons
so that's a hell of an assumption
I have not studied the question, nor do I think I am particularly well qualified to state an opinion on the legal issues.
That being the case, I think the EO would be a move of tactical genius on Trump's part. From what I understand, there is a legitimate constitutional question here which the court has not resolved. The EO would undoubtedly force the issue all of the way to the Supreme Court. Also, from a political perspective, it shines a bright light on an area of immigration law that most Americans would see as unfair-that someone can intentionally and illegally cross the border so that their child can become a citizen.
Freder Frederson said...
We arrest foreigners all the time.
Exactly, because they are subject to the jurisdiction of the U.S.
10/30/18, 8:22 AM
-------
Your ignoring the question. What is the exception for?
Are you arguing the authors of the amendment didn't know the law or what the heck they were writing?
It's a simple political argument, not a complex legal argument:
"The Constitution is not a suicide pact."
Fred (or someone) said:
That is ridiculous. That would mean if you were here illegally you couldn't be deported or arrested.
No, it would mean that if you are a felon, your children wouldn't be citizens either
Your ignoring the question. What is the exception for?
Answered above. Native Americans (no longer applicable) and persons under diplomatic immunity.
Blogger Freder Frederson said...
We arrest foreigners all the time.
Exactly, because they are subject to the jurisdiction of the U.S.
Poor Freder. Maybe the Germans we shot in 1944 should be honorary citizens, too.
1) No. I could only guess and that guess would be among the lines of how certain areas are not considered "being in the United States", such as around border entry locations, around embassies, and tribal lands.
2) No.
3) I expect the lower courts to reject this EO out of hand in the way they rejected more sound lawful arguments in denying entry to certain immigrants. I do support the EO primarily because the argument ought to be tested and the law made as clear as possible such that it is clear how to make changes in the law, if necessary.
Now back to engineering as rocket science is easier.
Once you start arguing that an amendment was to address a specific problem that existed at the time, you are very close to ending the right to bear arms.
What is the exception for?
I think it's a reference to Indian tribes, sovereign nations within the U.S.
What the Constitution REALLY says, is that:
As long as Internal Nations (Indian tribes) don't have to follow state laws (in gambling, gax taxes, etc); Their members are NOT Citizens. Don't Like it? Pass a new amendment
This upcoming legal battle will be way bigger than the "Muslim ban." It will rival that over same-sex marriage.
Trump wins 5-4. The Dems were right in worrying about Kavanaugh.
And just for the record Freder, I don't know the interpretation of the exception. I just know it's there and it means something. A lot of people want to ignore it.
Poor Freder. Maybe the Germans we shot in 1944 should be honorary citizens, too.
This statement is nonsensical. And you do realize that the POWs we executed were tried under full protection and procedures of military law according to the Geneva Conventions.
DBQ:
The writers at THAT TIME, could not foresee the technological changes in the world that would allow the massive immigration/invasions that we have today.
They couldn't foresee steamships?
Between 1820 and 1860, almost 2M Irish immigrants came to the U.S. Add in the Germans and Anglos and you have a much larger number. Between 1870 and 1900 some 10M immigrants arrived. Mass immigration in 1868 was both historical fact and easily predicted.
Your figures for Immigration from 2000-2009. Does this include the illegal aliens that are NOT able to be accurately counted? or are the figures of LEGAL immigrants?
See my postscript.
gilbar is correct about the Tribes not having to pay gas and cigarette taxes on those items sold on their reservations.
The well-developed law regarding Native Americans is the key to this whole issue.
People on Pine Ridge, and the Rosebud have their Own traffic laws, and their own traffic cops; yet get to vote in South Dakota elections. How does THIS square?
I didn't pay my tuition, and I haven't attended class, so I am not a student in good standing, but --
"the argument"
There are several arguments. One is a specious argument for birthright citizenship, based on a fabricated reading of "jurisdiction." The other is a reasonable reading of the actual meaning of the relevant provision, which also happens to protect the country against invasion and birth tourism.
Nothing prevents a president from issuing an Executive Order.
Nothing prevents the courts from making up any damn thing they please, arguments and evidence be damned.
And while we're at it, could SCOTUS please overrule the egregious Plyler v. Doe?
gilbar: Because Congress passed a law about the time of WW2 that made Indians citizens. Before that, they were not.
Native Americans = meta USA citizens
1) Yes. The legal argument would be around whether the baby is "subject to the jurisdiction thereof" I don't buy that argument. It seems clear to me that the baby is subject to the jurisdiction of the US. Are they subject to the jurisdiction of other countries? Perhaps, perhaps not. Depends on the country. From a practical standpoint the jurisdiction of the other country seems meaningless unless the baby returns to that country.
The 14th doesn't say subject to the sole,jurisdiction thereof.
So that is the argument and as I have said many times here, I think it is wrong.
2) The 14th is pretty clear. A) it is generally pretty clear whether or not the baby was "born in the US", though there are some cases of doctored birth certificates. B) Unless the parents are in the US on diplomatic status or the like, the baby is under US and state jurisdiction.
Thus a citizen.
3) I have no idea what the courts will say. I strongly hope they say he is full of shit on this one. It doesn't matter what they say, I will continue to think he is full of shit on this one. I really, really, wish he had not done it. I hope it is just shameless electoral pandering.
I feel strongly that this bright line that the US has on citizenship is part of what makes the US the US.
John Henry
Tim said
Only the TRUTH from the New York Times, only the truth... It's almost as if they consider illegal immigration to be exactly the same as legal immigration..
This. The left have removed the word "illegal" from their vocab. Actually, it's worse - the very word "illegal" is like saying Hitler.
Indian Citizenship Act signed into law in 1924. I was off by a few years.
I will answer only the first question, since I am not in the course for credit. I know the argument for and against the proposition that the fourteenth requires birthright citizenship, because of Michael Anton stirring up the debate and reading a couple of the relevant SC decisions, but not the case to be made for using an EO to press forward. I do not know anything from mainstream press accounts and expect that I never will, because it will be covered in insufficient depth and with condescending righteousness deployed to obscure the problem and encourage a partisan approach to the legal issues.
@ Freder
Freder Frederson said...
We arrest foreigners all the time.
Exactly, because they are subject to the jurisdiction of the U.S.
That is what it sounds like, but there is a good post at Legal Insurrection today explaining why that isn't the answer. It's the difference between being subject to jurisdiction and subject to American law.
"Anton went on to make a distinction between “subject to the jurisdiction” and “subject to American law.”
Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe.
Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here.
The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t."
Dave Begley said...
gilbar: Because Congress passed a law about the time of WW2 that made Indians citizens. Before that, they were not.
Which means that they lost their Internal Nation status. Pass a new amendment if you want them to keep it.
Please don't get me wrong, i'm not arguing what IS, i'm arguing what is CONSTITUTIONAL.
The Constitution doesn't allow titles of nobility (like, I'm a Lakota Sioux Tribal Chief)
The Constitution doesn't allow some laws for Some people, and other laws for the rest
Again, i'm not arguing what IS, i'm arguing what is CONSTITUTIONAL.
A couple people today and others in past discussions make the mistake of talking about the mother's status. The 14th makes no mention of the mother. The 14th applies ONLY to the baby.
Here is another question: What happens to a baby, born to an alien (legal or illegal) who's country does not recognize that baby's citizenship?
This used to be the case with the US. Still is in some circumstances. It used to be that a baby born to a US citizen mother under the age of 18 was not a US citizen. Ditto a baby born to a US mother who had not lived in the US for a certain number of years.
SO what do we do with that "stateless" baby?
John Henry
1. No.
2. No. I prefer textualism but if originalism is on the table then I highly doubt people in 1868 thought anything about the separation between "lawful permanent residents" and "illegal immigrants". The INA wasn't passed into well into the 20th century. In 1868 you either were in the territory of the U.S. or you weren't. Even under the textualist theory illegal immigrants are, arguably, "subject to the jurisdiction of tbe U.S." or how does anybody have the authority to make status determinations or prosecute them or plaace them into court proceedings?
3. No. I don't see how Trump can get around all the laws passed by Congress that treat people born in the U.S. as citizens, including the INA. This is arguably not an issue which Congress has delegated to the executive, nor is it one I think would pass Chevron deference.
I should add that I'm a practicing immigration attorney and, while bad for my clients, I understand the argument for the executive order referred to as the "travel ban" and, as perhaps unpaletable as it is, I believe there was a good argument that the president did have authority in that case.
I have this dream where I am sitting in a hall, exam papers are being handed out, and I haven’t gone to this class all semester. Forgotten until just now, in fact, that I’m even enrolled in the course. Clearly I am having it again ...
I hate this dream.
Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
Whoever inserted the bracketed "or" is being exceedingly dishonest. Read the statement as originally made, without the [or], and the entire meaning changes.
“Thanks to the Prez for picking the fight, regardless whether he has the authority or not.”
I’m going to cut the exam and drink cheap beer in my friend’s VW van out at Trinidad beach. Trump knows the usual judges are going to slap this down. It’s all about the fight, and that should be good for a couple of years of base-feeding.
Another question for interpretation:
"All persons born or naturalized in the United States"
What is "the United States" for purposes of 14A?
I know the answer as defined by statute I wonder how many others do?
John Henry
I don't know what arguments that may or may not be made on either side of the question, but I imagine that it comes down to what the phrase subject to the jurisdiction thereof in 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 means.
As it currently stands, it seems to be read as if that phrase were entirely absent and that the amendment says: All persons born or naturalized in the United States are citizens of the United States, with the single exception (that I am aware of) of children born to diplomats and other foreign officials. So, is a baby born here to a mother here illegally subject to U.S. jurisdiction? Can the president simply say, "Nope, they're not under our jurisdiction, out they go?" Who actually decides whether someone is under U.S. jurisdiction, and how is the decision made? Do judges decide who is under their jurisdiction, does Congress, or does the executive? The case of diplomats shows that mere presence is not enough. Is the fact that illegal immigrants are regularly brought before judges sufficient to show that they are under U.S. jurisdiction? If the president decides to deport people born here to illegally present mothers, would he necessarily also have to refuse to allow them to appear before a judge?
I think President Trump and many others are conflating two separate issues.
One is birthright citizenship. This is, at least arguably, enshrined in 14A. I also think it is a very good thing.
The other is anchor babies and chain migration. To a lesser extent govt benefits for the babies.
I agree fully with the arguments against chain migration. Just because the baby is a US citizen, no rights of any kind should confer on the mother or any other relation. That is a statutory issue and could be changed tomorrow by Congress. I suspect it could be changed by EO.
I also think it should be changed by Congress/EO tomorrow. Today would be better. I'd go even further, I would say that any mother having a baby while in the US illegally would be permanently disqualified from ever even entering the US.
Re medicaid and other payments, simply change the law so that only legal US residents get them. That US baby living in TJ that Michael mentioned is not a US resident. Not eligible for benefits.
John Henry
I think the argument is that the words "and subject to the jurisdiction thereof" imposes a requirement in addition to that imposed by "born or naturalized in the United States". So merely being born here is not enough by itself to be subject to the jurisdiction of the United States, and therefore not enough to be a citizen.
Dave Begley said...
...it is the exclusive province of the Supreme Court to say what the law is...
This is wrong. It is the exclusive province of Congress to say what the law is. They do this by legislating. They even write those laws down, so that everyone else can see exactly what the law is.
All the Supreme Court gets to do is to say how that law applies in any particular case or controversy.
Freder, I'm going to ease up on you. You post silly things but I will ignore them.
However, anyone in this country is "subject our jurisdiction." That does not establish the citizenship of babies born here.
Friends of mine were here in 1970 as a fellow in transplantation and his wife. While here, they had a daughter born in Pasadena. They live in Australia where they returned as soon as his fellowship ended. I have visited them in Australia. The daughter, Juliet, says it "blows her mind" that she is an American citizen. She has no intention of returning here and lives in Sydney.
It is a quirk of law that babies born of foreign citizens while visiting are US citizens. For legal immigrants, I have no objection, but illegal immigrants should be expelled and their children born here should not be citizens.
The whole immigration thing changed in 1920. The Frontier had closed and the need for immigrants to population the country was no longer an issue. Special circumstances, like the Jews in the 1930s, should have changed things but they did not, probably because of anti-Semitism which was still prevalent.
The present population of illegal immigrants is unskilled at a time when American citizens who lack skills are having a hard time. The only reason Democrats want illegal immigration is the same reason why Labour pressed for Muslim immigration in Britain. It is to replace a recalcitrant voting population with a new population more amenable to voting "right."
We also have an issue with legal immigration by H1B visa and that is the reason why Silicon Valley billionaires are solid Democrats,.
Blogger Ann Althouse said...
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."
How does it not square? I would agree if he were EOing something clearly unconstitutional. This EO is not. It is about something which many knowledgable people disagree on the Constitutional meaning. What is wrong with a president saying "I take the words to mean this and am issuing an EO to that effect. If my interpretation is wrong, the courts will correct me."
While I strongly disagree with this effort, I do see a bright side. We will finally get this question answered one way or the other. .
John Henry
For example, the children of diplomats are very likely not subject to the jurisdiction of the US. This suggests that the requirement has something to do with allegiance to or a duty of loyalty to the US.
Interesting argument on this very EXAM by one Justin Fox.
He provides support for Freder point that the "or" in the Jacob Howard speech is highly dubious.
Here’s Howard’s full quote from the May 30, 1866, Congressional Globe, the precursor to today’s Congressional Record
"The amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons."
In this context, it seems more likely that what Howard was implying in that spot was an “and” — that is, he meant to exclude only foreigners who belong to the families of foreign diplomats. Still, it is ambiguous, and Anton got the quote and the “[or]” from a 2015 National Review essay by Edward J. Erler, an emeritus professor of political science at California State University at San Bernardino who has written widely on such matters. Perhaps Anton assumed that Erler put it there because he’d read the whole debate and it seemed like the fairest interpretation of Howard’s views.
These days, a reader doesn’t have to stop at such assumptions, though, given that all these debates are online at loc.gov. After reading through the Senate citizenship-clause debate of May 30, 1866 (it fills eight densely packed pages), I can report that Erler — as well as John C. Eastman, a professor at Chapman University’s Dale E. Fowler School of Law in California who has been another leading proponent of this revisionist theory of the 14th Amendment — cannot be relied upon for accurate representations of 19th-century legislative history. (Even before I had finished reading the whole debate, I went on a Twitter rant about the dubiousness of that “[or],” after which the National Review almost immediately removed it from Erler’s 2015 piece and posted an editor’s note; the Washington Post hadn’t changed the quote in Anton’s piece as of Tuesday morning.)
Pussy Bush could not even use the phrase "Anchor Baby".
Bringing this up the week of election
(not issuing it, but talking about issuing it)
seems too controversial to me
but I don't have the balls Trump does
he apparently sees immigration as winning issue
to send his base to the polls
And enjoys moving our definition of what is acceptable to discuss
amazing man
"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?"
Of course the announcement now is political. However, I doubt it is connected to right wing terrorism. Why would we be talking about right wing terrorism it is rare? I would even go so far to say as right wing terrorism does not really exist as any type of movement. Anyone that thinks or says PDT is anti Semitic is a hack or idiot.
I think PDT has had this planned for weeks.
Blogger narayanan said...
I would take away "Naturalization" altogether and just retain birth-right or "BORN IN THE USA"
Then what happens to John McCain and Ted Cruz? Two recent candidates.
Neither was "Born in the USA"
Both are naturalized, statutory, citizens.
Would you take their citizenship away?
John Henry
As purely a legal matter, it would be preferable for Congress to pass a law,"No babies born on US soil to illegal immigrants are US citizens."
If the GOP retains the House, Congress should do so.
Then, of course, it will be taken up to SCOTUS, and who knows whether they will find it unconstitutional under the 14th Amendment.
I'm gonna stick with my original 3 yes/no answers so I can get out of the exam early.
I have a pancake eating contest to get to...
"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."
The notion that Chinese tourists' anchor babies are "subject to the jurisdiction of the United States" in any sense other than subject to deportation is an insult to good sense.
The language of the amendment couldn't be clearer.
LMFAO. Rack that one for the future. Freder the textualist. What's next? A venture into originalism?
Blogger Hagar said...
"anchor-baby" thing is quite another matter; that is just "policy" dreamed up by the State Dept.
Interesting point, Hagar. Is it just "policy" by the State Dept or is there some underlying statute?
If just policy, PDT doesn't even need an EO. I suspect he could kill it (and should) with a phone call.
If a statute, it might require Congress to pass a law negating it.
John Henry
Blogger buster said...
For example, the children of diplomats are very likely not subject to the jurisdiction of the US.
There was an interesting example that I';m not sure it fall under this issue. The son of a Spanish diplomat attended West Point a few years ago and turned out to be a football star.
This is him, Alejandro Villanueva.
Villanueva’s entire family is from Spain, but Villanueva was born in Mississippi while his father was stationed there as part of the Spanish Navy. He played rugby, but had a slow adjustment to football. Villanueva’s playing time grew steadily over his years at Army, mostly positioned as a lineman.
Interesting. I think he is still playing in the NFL.
3. No. The argument against birthright citizenship makes a distinction between political and territorial jurisdiction that, while it may have historical roots, is different from how federal courts normally analyze jurisdiction. There are all sorts of types of jurisdiction that courts are used to analyzing: original, exclusive, pendant, personal, subject matter, etc., but political and territorial are not typical ways of describing jurisdiction. Also, it involves convincing inferior federal courts that the Supreme Court's clear language going back to the 1890's can be disregarded because it is dicta. Taken together, the argument is a tough sell.
To be blunt, the argument against birthright citizenship sounds less like the argument of an experienced lawyer and more like the argument of one of those crank, militia-type, vexatious litigants.
”The notion that Chinese tourists' anchor babies are "subject to the jurisdiction of the United States" in any sense other than subject to deportation is an insult to good sense.”
Yeah, it is.
“Subject to the jurisdiction of the United States” is an ill-defined phrase. Pirates on the high seas would appear to be “subject to the jurisdiction of the United States.” At least, the United States Navy would appear to think they are. Are pirate babies US citizens?
No McCain didn't apply because he was born on us territory, Cruz was lawfully admitted,
The interest of a law professor hired to teach aspiring lawyers how to practice and pay attention to the decisions of higher courts as to what the current law is, is one thing. Starting a public discussion of what we think the law ought to be is another.
Incidentally, that "awful" Korematsu decision had precedent. During WWI the Wilson administration not only rounded up recent German immigrants and interned them in concentration camps, they also rounded up prostitutes - native American citizens - from the cities and towns near army camps and interned them on the basis that practicing their trade risked corrupting the morals of the recruits drafted for the war besides STD's endangering national security.
ignorance is bliss has just overruled Marbury v. Madison.
I think all we are going to talk about is whether Trump was right this is the only country that has birthright citizenship and how this is meant to gin up xenophobia and Trump is a hater and so is anyone who wants to discuss this further.
I started to try this...
Birthright citizenship is in the text of the 14th amendment where the first line 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.” The arguments for debating this clause lie in the “subject to the jurisdiction thereof” phrase.
Currently, we extend exceptions to this primarily to diplomats (or those who do not seek to be citizens or residents of the US) (and families thereof) who give birth within the borders of the US and are therefore still subjects or citizens of their respective countries. We do NOT grant citizenship to those children, because they do not intend to claim to be subject to the jurisdiction of the US.
Historically, this meant that we also did not grant citizenship to Native Americans who were members of their tribes and special cases of people born within the borders of the US but really citizens of tribal members of their separate tribal organizations. This changed through acts of congress over time, often tied to also applying taxation to these tribes along with the granting of citizenship upon birth. In Wong Ark, SCOTUS committed that the clause also applied to children of parents who were foreign born but residents of the United States.
The ability for the president to alter the application of “subject to the jurisdiction thereof” would lie in the power of the executive branch to execute and administer these laws. The president’s executive orders could conceivably order USCIS, ICE, and CBP to interpret the clause differently.
An opposing argument is that the language is clear and “subject to the jurisdiction thereof” is applicable even to illegal immigrants - they still have to obey the laws of the state and, often, are recipients of benefits of the state wherein they reside, including, but not limited to, equal protection under the law.
...
When I get to part 3 of the question, I'm at a loss. I see the point of both sides, but I don't understand the court enough to know how they balance text, precedent, and intent to make a decision. My support for the president's actions or lack thereof does not depend on whatever the court would decide. (Is an intent of the exercise to pick a position and argue that it would pass SCOTUS muster, regardless of our own misgivings? Confidence in one opinion over doubt about the definitiveness of any opinion?)
I accept that the president's actions are often calculated for effect on public opinion and not merely whims. His proclamation here is an attempt to claim the current narrative prior to the election, to counter the recent news headlines and the leading voter concern according to polls: health care.
I'm sure that's not up to law school midterm standards. Thanks for the mental exercise, though.
Ann Althouse said...
"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
Of course. It's a matter of opinion. Same with any EOs. BTW, not interested in submitting to your exam. Though I agree with Trump's idea behind this, I am against laws by EO.
they say corporations are persons
This is BS shorthand designed to self-refute. It is MSNBC-level stupid. SCOTUS said in Citizen's United that PEOPLE do not give up their right to free speech when they form a group. A corporation is a group of PEOPLE. The PEOPLE within the group retain their right of self-expression and 1A protection. It is notable that newspapers, usually owned by a corporation, seem to get this issue wrong every time, just like progressive talking heads on TV. Are you saying that the NYT has no rights under the Constitution?
If Citizen's United had been decided the other way, could we stop corporate news from expressing themselves? Or would the "Press" have special rights not available to other groups? Explain your statement.
I bid 5 Kavanaugh's. If DJT will play that hand , he will win the trick
Althouse's midterm exam is tough: It's about President Trump's executive order to end birthright citizenship.
The NYT reports.
I read this as if the NYTimes had published a story about our hostess.
Blogger narciso said...
No McCain didn't apply because he was born on us territory, Cruz was lawfully admitted,
True in both cases but were either of them born in the United States in the meaning of 14A?
No. Panama is not and never has been "The United States" for citizenship purposes. Nor are military bases.
This goes back to my question about what is the United States for citizenship purposes. It is clearly defined by statute. It is not defined by the Constitution.
Both are citizens because various statutes say they are. Neither were "Born in the USA" as you would seem to require.
The statutes could be changed tomorrow and neither a person born to the wife of an admiral outside the US nor a person born in Canada to a citizen mother would be a US citizen.
It would not affect Cruz or McCain's citizenship since it is basically impossible to revoke citizenship legally acquired.
John Henry
Wasn't the original ruling "ruling" on birthright citizenship contained in "dicta" and not the gravamen of the case, and therefore not precedent?
@Darkisland,
I think what began as just "policy" indeed is enshrined in the latest iteration of immigrant law, but it is really immaterial. If it is "just policy" the bureaucracy will still fight tooth and nail to defend it just because it is "policy."
Congress needs to straighten out the law and then the Supremes affirm it and then, if the public still strongly disagree with the results, we need to get ourselves a new Supreme Court.
"A switch in time, saves nine."
To take this in a gonzo parallel -
Given that it is turning into one world, inevitably as technologies and economies progress. Even Honduras and Mexico; in the past this caravan would have been logistically impossible for those poor people. It is because they, and the regions they are passing through, are relatively wealthy that they can conceive of and survive this trip.
Indeed, even in "Camp of the Saints" the migration is only possible because many large modern ships capable of sailing to Europe are available to be seized.
It is only going to get easier and cheaper, and more thinkable besides, as the whole world becomes ever more familiar with the trip and pre-acclimated to the First World.
I am thinking of Neal Stephensons "The Diamond Age", where there are no territorial nations as such. They have opt-in (or by invitation, or whatever) societies and cultures dispersed and intermixed with others in enclaves. Each acts like a state, with its own laws and culture and economy, treating their neighbors as aliens.
Ann Althouse said...
"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."
Now that there is funny.
Seriously, the president has a legal staff with whom he consulted and who presumably studied the matter and blessed it before he signed it. It would be weirdly ironic if the very same courts that ruled Trump can't revoke DACA were to rule this EO is unconstitutional.
The US Supreme Court doesn't issue advisory opinions, so therefore until the matter is heard it is presumed to be permissible until the court says it isn't. Look no further than John Roberts bending over backwards to bless the penalty is a tax to save Congressional passage of Obamacare. The very same oath of office is sworn by every member of Congress and it doesn't stop them from passing suspect laws. And most of them graduated law school so they should know better. State and local officials also swear to uphold the constitution and the laws so as per your inference quite a lot of officials at all levels of government have been breaching their oath.
What the courts will rule I have no idea. Yours is a far better qualified opinion than mine. I see this as a logical extension of children born of foreign diplomats while the mother is in the US. The child is not born a US citizen. While a diplomat has certain immunities not available to a foreign tourist in the US they are not completely exempt of the constitutional umbrella so therefore if their child born in the US isn't a US citizen it isn't a large leap to conclude a child born to someone here on a tourist visa automatically becomes a citizen. An illegal alien is by definition here illegally and it would appear that a child born here to an illegal alien would be profiting from the illegality of the mother.
A corporation is a group of PEOPLE. The PEOPLE within the group retain their right of self-expression and 1A protection.
When I was first in practice, it was right after professionals like doctors were allowed to incorporate. We had a lecture on incorporating and corporations. The lecture concluded with the advice that corporations could do anything that people could do with one exception.
They could not go to prison. The officers did that.
I think it is interesting that the wording of the amendment uses the verb "are" in the present tense since, together with the historical moment when it was passed, it indicates that the original intent was to make African Americans, who had just been freed from slavery, United States citizens. It had nothing to do with making birth tourism legal in the far distant future.
Would it be surprising if the Supreme Court agreed with this line of reasoning?
Barry said...
...His proclamation here is an attempt to claim the current narrative prior to the election, to counter the recent news headlines and the leading voter concern according to polls: health care.
Do you have a link to a poll showing that result?
I find healthcare ranked 4th or in a in a 3-way tie for third
“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."”
I think that getting into the Presidential oath is a sand pit. It differs significantly from that required by everyone else who must swear an oath to take office who merely have to promise to "support and defend the Constitution.". Since our Constitution depends on the safety of this country, the differences between the Presidential oath and the standard oath have been interpreted to mean that he has the primary responsibility of defending this country, and keeping it safe. Immigration policy can easily be seen to fall under that. Moreover, the entirety of the Executive Branch’s legal and moral justification derive from his Article II Powers. With that, who gets to decide what is involved in faithfully executing the office of President, and how best to preserve, protect, and defend our Constitution? Primarily, that would be the President himself. It’s his executive power that is being utilized. He was the one granted this power under our Constitution. Not Congress. Arguably not even the courts. And definitely not the press.
Separation of Powers does put some limitations on what a President can do. The Judiciary has taken upon itself the power to second guess whether his actions are within Constitutional and statutory limits, and Congress gets to set the statutory limits (that the Judiciary can reject and interpret). But here, we seem to be mostly talking the President ordering his Executive Department to operate differently, than was done under his predecessors, which is his right, and within his powers.
If one is truly a strict constructionist the answer is obvious. The constitution provides that one born in the US and subject to the jurisdiction of a state is a citizen. To quote the first sentence of Section 1 of the 14th Amendment:
"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."
I guess Republicans are only strict constructionists when they agree with the clear meaning of the constitutional provision at issue.
The 14th Amendment was of course part of the anti-slavery package of Constitutional amendments, intended to make clear that all Negroes born in America, regardless of their former chattel slave status, were full citizens, both of the US and their state of residence. I suppose that Trump's legal advisors are relying on that history as limiting the applicability of the Amendment to birth tourism.
According to my understanding of the doctrines of Constitutional and statutory construction, courts only look to outside sources of intent when the language is ambiguous. Much as I'd like to on policy grounds, I'd have to hold Trump EO unconstitutional. I expect the SCOTUS and other federal courts to do likewise.
but can you imagine sitting down for a 3-hour exam, reading questions, noticing that they're all yes-or-no, putting down only yes or no for each, and planning to argue your case to the professor afterwards, staking your grade for the entire course on the hope that the teacher would think you did it exactly right and reward you?
This is too much like the real life version of that dream where you forget you signed up for a course until just before the final exam.
Let us step back to the big the picture:
1. In 1920, both parties in the USA reached a position -- we want LESS immigrants to our country, period. This was the policy for nearly 50 years.
2. In 1969 or so, the Dems altered their position. They said, no more barriers to immigration from certain countries in Africa, in Asia and elsewhere. This seemed reasonable at the time - a spearhead for diversity.
3. In 2018, the Dems want a flood of illegal immigrants to enter our country, get government assistance, go to public schools, and vote Democrat either illegally now, or legally if amnesty is granted, in order to turn the southern border states Blue, like they did to California.
Sorry, most sane people in American (and now Sen. McCaskill!) do not believe in open borders, do not want to abolish ICE, don't want unfettered legal immigration, and certainly don't want illegal immigration to drive down blue collar wages.
Citizenship is valuable - protect it!
Under the penumbras clause of the 28th Amendment, none of these questions matter.
What matters is counting five Supremes.
Here Ann combines her talent for careless writing with her trademarked didacticism and specialty in ahistorical confusion. The answers are yes, yes, yes, and no. The 14th Amendment tried to redress Dred Scott to allow freed slaves to become citizens. Ann doesn't have the nerve to suggest bringing back Dred, but that's what she means. Piffle, and pathetic.
Bushman of the Kohlrabi said...
This is too much like the real life version of that dream where you forget you signed up for a course until just before the final exam.
"Oh no, I'm back in school. I can't believe I'm back in school."
The constitution provides that one born in the US and subject to the jurisdiction of a state is a citizen
Illegal immigrants by definition have not submitted themselves to the jurisdiction of the United States. They have in fact explicitly refused to become subject to our jurisdiction.
Here in Yuma, AZ, a shocking number of pregnant Mexican women cross the border while in labor to have their babies. Not only do they have their babies here--sometimes via expensive C-sections--but they don't have to pay their bill because Medicaid 'emergency' funding [the taxpayer] picks up the tab. So, apart from being 'anchor babies', they are costing us a bundle in initial medical costs. This is not about compassion. It's all about a scheme played against our flawed system.
The argument is that the words and subject to the jurisdiction thereof would disqualify babies born to people who are hear illegally.
That is ridiculous. That would mean if you were here illegally you couldn't be deported or arrested.}}}
I see this as the nub of the argument. Restated: Because the federal government can act upon any human being present within its borders in at least SOME limited fashion, all human beings who happen to be physically present here are subject to USA "jurisdiction." The problem is that this seems way too inclusive and would make the clause "subject to the jurisdiction thereof" superfluous.
Illegal immigrants by definition have not submitted themselves to the jurisdiction of the United States. They have in fact explicitly refused to become subject to our jurisdiction.
Right, gahrie! People who enter our country illegally have no legal rights!!!
1 Subject to the jurisdiction. I think it is not true already that being born in the country suffice. A pregnant ambassador giving birth for example. We saw the reverse with John McCain. The parents were deemed subject to the laws of countries other than were they were. The idea is that the kid is subject to the jurisdiction the parent is deemed subject to.
2. I think so. The clause says “and”. I can explain “and”. And the phrase should not b nugatory, it should mean something.
3. No, not as an executive order. I haven’t given it much thought. It might succeed as legislation.
The "subject to the jurisdiction thereof" language is of no help to those wanting to deny citizenship. If they are not subject to the jurisdiction of courts, then a court has no authority to deport the person. No jurisdiction means the court essentially is powerless to take any action in the matter.
Henry: [Quoting Justin Fox] In this context, it seems more likely that what Howard was implying in that spot was an “and” — that is, he meant to exclude only foreigners who belong to the families of foreign diplomats.
Except that moments later, when it was proposed to add "excluding Indians not taxed" to the amendment, Howard argued that Indians were already excluded. He said, "Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations."
I think he pretty clearly meant to exclude all foreign nationals, not just families of diplomats.
If you are born here, fine, you are entitled to citizenship, but you are still going back home with your mama. Come back when you are 18 or older with proof of your birth and you can claim your citizenship then, provided that there are not other reasons why you should be denied.
David Begley's example,tribal members,is much better than my ambassador one. Same principle but the precedents are far stronger.
I'm glad that I'm just auditing this class.
"Once you start arguing that an amendment was to address a specific problem that existed at the time, you are very close to ending the right to bear arms."
Free speech, even.
"Would it be surprising if the Supreme Court agreed with this line of reasoning?"
It all depends on what the meaning of 'are' is..."
Blogger mockturtle said...
So, apart from being 'anchor babies', they are costing us a bundle in initial medical costs. This is not about compassion. It's all about a scheme played against our flawed system.
And this has what to do with the Constitution? This requires a change to the Constitutional interpretation of birthright citizenship why?
An EO can fix both the anchor baby/chain migration problem and the medical expense problem. A statute would be better.
Perhaps what PDT should do is 2 EOs. One on birthright citizenship and one on chain migration et al. That way the first could be overturned and the second upheld more easily.
John Henry
Bay Area Guy: Let us step back to the big the picture:
1. In 1920, both parties in the USA reached a position -- we want LESS immigrants to our country, period. This was the policy for nearly 50 years.
2. In 1969 or so, the Dems altered their position. They said, no more barriers to immigration from certain countries in Africa, in Asia and elsewhere. This seemed reasonable at the time - a spearhead for diversity.
The "diversity spearhead", while it was likely the unspoken aim of the legislation, wasn't seen as reasonable by voters at the time. That's why the guys pushing the bill (like Teddy Kennedy) swore up and down that it wouldn't change the country's demographics in any significant way.
3. In 2018, the Dems want a flood of illegal immigrants to enter our country...
The GOPe does too, and always has. The illegal immigration mess is thoroughly bipartisan. Regardless of whether and when they are subjected to any electoral discipline on the issue, in which case they just pretend otherwise until after election day.
...get government assistance, go to public schools, and vote Democrat either illegally now, or legally if amnesty is granted, in order to turn the southern border states Blue, like they did to California.
As for the government assistance part, GOPe-ers (pols and donors) have been happy to have labor costs subsidized by taxpayers via any kind of welfare assistance to illegals. That they come to regret the consequent blue-ing...well, they're not the Stupid Party for nothing.
Original Mike said...Pirates on the high seas would appear to be “subject to the jurisdiction of the United States.” At least, the United States Navy would appear to think they are. Are pirate babies US citizens?
As (i think) Dr. K was saying, the German army came under the jurisdiction of the United States during WWII. Certainly, the Entire nation of Japan came under American rule, American governorship, and American jurisdiction post war.
Are ALL the children born on Japan in the late 1940's American Citizens? If not, WHY NOT?
They sure as shit were under McArthur's jurisdiction.
On the other hand, not that American laws used to have much in common with laws in other lands; Can someone give an example of ANY other country that allows birthplace citizenship of tourists or criminals?
I think that it's rich to hear the no borders types here explaining to us how wrong it would be to use reasoning that Sotomayor or RBG would use in a heartbeat. You guys made the SCOTUS about power.
I made this comment before but I think it bears repeating: The Left will absolutely go to war over this EO. It will make the travel ban look like an exhibition game. Lawsuits, protests, screeching on cable TV.
Reason? It totally undermines the future voting base of the Dem party.
”The "subject to the jurisdiction thereof" language is of no help to those wanting to deny citizenship. If they are not subject to the jurisdiction of courts, then a court has no authority to deport the person. No jurisdiction means the court essentially is powerless to take any action in the matter.”
Like in sanctuary cities?
@SeanF -- Could be. As is often the case, the Congressional arguments are frustatingly opaque.
No. No. No, No, No, and I don't know.
As written the intent of the 14th amendment seems clear enough. I doubt I need to look at anything else to understand what this means in the context of the Constitution.
(But I'll read the comments and see if there is a counter-argument.)
Blogger Ken B said...
We saw the reverse with John McCain. The parents were deemed subject to the laws of countries other than were they were. The idea is that the kid is subject to the jurisdiction the parent is deemed subject to.
But that is not why John McCain was a citizen. He was a citizen because our statutes say that a child born of a citizen mother anywhere in the world is a US citizen at birth. (A number of caveats have floated in and out of that over the years but that is the basic)
And to Narciso (I think it was) Cruz did not just enter the US legally, though he did that. He entered the US BY RIGHT since he was born a US citizen. By virtue of his mother's citizenship.
He was also, up until about 2015, a Canadian citizen too. He claims not to have known. I have never thought he was that ignorant. When he "found out", he renounced his Canadian citizenship.
John Henry
”Can someone give an example of ANY other country that allows birthplace citizenship of tourists or criminals?”
Only 30 countries do. Unknown posted the list in the second comment of this thread.
The Amendment was about slavery, and the citizenship rights of negroe's forced into slavery and brought to this country.
It had nothing to do with Mexicans, Canadians, or Irish stowaways.
Well I was using shorthand, our diaspora is not as simple as it appeals us policy into the 70s was designed to avoid one single enclave.
gahrie said...
Illegal immigrants by definition have not submitted themselves to the jurisdiction of the United States. They have in fact explicitly refused to become subject to our jurisdiction.
Irrelevant, for two reasons. First, whether or not illegal immigrants are subject to our jurisdiction is not up to them, so their refusal means nothing.
Second, in the relevant text, subject to our jurisdiction qualifies the person born here, not their parents. The baby who was born here definitely did not refuse to be subject to our jurisdiction. And if you were to say that the parents get to speak for the child on this issue, I'd bet the parents would agree that the child is subject to our jurisdiction.
A client of mine lives on the island of Antigua, an independent country in its own right.
His grandfather or great grandfather immigrated there many years ago from Portugal. I do not understand why but he still holds a Portugese passport.
He was born in Canada. He did go to college there but has otherwise never lived there. He holds a Canadian citizenship by virtue of his birth. When I was last there his wife was about 8 months pregnant and was about to go to Canada to have the baby. All his children were born in Canada and are Canadian citizens. It is apparently a thing with certain parts of the Antiguan community to do this.
And, since he has lived all his life in Antigua, he is also a citizen of Antigua.
He explained that he uses his Antigua passport traveling around the Caribbean, his Canadian PP to go to the US (He has some sort of unlimited access visa) and his Portugese passport to travel to Europe.
This seems to kind of make a joke of the whole concept of citizenship.
I have read the arguments before coming here, Legal Insurrection had a good write up. I'm not sure which way the argument will go. The Trump E.O. is a new angle. Sadly, it seems the eventual decisions will go down on the Left to the political leanings of the judge and what decision they want, not the actual meaning of the constitution. On the right, the judges seem to actually try to follow the constitution, plus all the precedents.
Anchor babies are a huge issue where I am, with a huge business of Chinese coming to my area, having kids, and then leaving. It's a huge business. The thing the parents forget, is that then puts their kids under the oversight of the IRS, something if they thought about it with all the usual BS family legally gray area business dealings a lot of Chinese rich enough to come here have, they probably want to avoid.
Another related issue is dual citizenship. For some reason it seems to have exploded, where it used to be at age 18 you had to choose US or the other nation (if you were born overseas to US parents like my Aunt).
I was not aware of the Indian issue with citizenship and the 14th amendment, as mentioned in other comments.
Great blog post by Althouse, it made the discussion a bit higher level.
gilbar said...
Original Mike said...Pirates on the high seas would appear to be “subject to the jurisdiction of the United States.” At least, the United States Navy would appear to think they are. Are pirate babies US citizens?
As (i think) Dr. K was saying, the German army came under the jurisdiction of the United States during WWII. Certainly, the Entire nation of Japan came under American rule, American governorship, and American jurisdiction post war.
Are ALL the children born on Japan in the late 1940's American Citizens? If not, WHY NOT?
No, and no. Read the amendment. They have to be both under our jurisdiction and born here.
Resolving issues with the 14th Amendment is a piece of cake compared to the effort that would be required to re-baseline the Commerce Clause (Article 1, Section 8, Clause 3. Maybe Trump should turn to that issue next. What would your exam questions be for that issue, Professor?
If they are not subject to the jurisdiction of courts, then a court has no authority to deport the person. No jurisdiction means the court essentially is powerless to take any action in the matter.
Steve, copying Freder's argument does not make you look smart. The German POWs were under US "jurisdiction."
Of course, this wouldn’t be much of an issue if we built a wall...
By getting rid of birth right citizenship, it may be a blessing for many in Europe who are trying to get rid of their social security cards that require them to file and pay US taxes, even though they've never been to the US except as a baby.
They can drop their citizenship, but the IRS won't let them drop their social security number without their going through an expensive legal process.
Trump may have found a way to end the IRS debacle.
I regard the "subject to the jurisdiction" language in the Citizenship Clause as applying to the children of diplomats. In other words, why grant citizenship to someone who is immune from your criminal laws? Illegal immigrants are prosecutable, taxable, deportable, etc. They may be violating the law by being here, but the law still applies to them.
okay, i'm going to quit digging my hole
Thanx Original Mike and Unknown for the 30 countries
Thanx IiB for the and
I’m for a new amendment to the Constitution. The right thing to do and a great political issue, IMO.
The Executive Order is good, because by creating it, the issue can then proceed to the Supreme Court. Congress is not going to let any paper-hanging President decide what the Constitution means. Regardless then, I support the Presidents action.
Ann Althouse said, 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."
I think Trump is pushing his oath a bit. Of course if there is an argument that would reconcile his proposed Executive Order with the Constitution, even if most people disagree with it, then that would let him off the hook. Still in the larger context, Trump's violation doesn't seem significant.
Part of the larger context is academia, where my rough impression is that something like 90% of legal academics have been doing whatever they can to gut and render the Constitution
of the United States meaningless.
But then maybe if I understood human nature better, this would all be predictable.
I don't see how the Constitution of the United States is going to survive in any meaningful sense unless we can get at least a significant number of educational institutions that are dominated by libertarians.
When we were kids, everyone knew that to be eligible to be president, you had to be born in America [at least that is what we thought]. It never occurred to any of us that just being born here [even to non-citizens] made you a citizen. I assume that became heavily bastardized and pushed as precedent by Dems since around 1980 or so.
Birthright citizenship is a fine policy but it does get abused.
It's not buses from Tijuana and pregnant women from overseas on "vacation." For decades there was rampant fraud in the Rio Grande Valley by midwives who would in exchange for a fee falsify birth records for Mexicans who wanted US citizenship for their children. There are many people in Texas today who were actually born in Mexico but obtained US citizenship at birth because Texas allows midwives to generate birth certificates. The US government is apparently still investigating these fraud schemes from decades ago, and even denying passports to people whose births were recorded by midwives who engaged in this fraud.
I meant, "It's not *just* buses from Tijuana ..."
Darkisland: An EO can fix both the anchor baby/chain migration problem and the medical expense problem.
Would be nice. But fixing the anchor baby/chain migration/medical expenses problem via EO or statute is probably no more doable (in any timely, meaningful way) than fixing things via constitutional amendment. We already have plenty of immigration statutes that are blithely ignored without consequence.
Attempts to deal with any of these obvious abuses and idiocies will be struck down by the courts as violations of somebody or others' human rights. (See, e.g., prop 187)
Michael K. How many German POWs were born in the US?
Is there some reason why whenever you respond to a comment you disagree with you must always include an insult?
Speaking of Ted Cruz: He was born in Canada and gets his US citizenship via his mother and statute.
14A says: 'All persons born or naturalized in the United States,
So was Cruz naturalized in the United States? No question he was naturalized by the US. As I understand the word. There may be some legal distinction between "naturalization" and how he got it.
Ditto McCain.
So does 14A apply to them?
John Henry
'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.'
I guess the left focuses on "persons born" and tries to apply thereto a strict constructionist interpretation.
The saner folks wrestle with "subject to the jurisdiction thereof" clause.
Are illegals "subject to the jurisdiction" of the US?
I reckon a "permanent resident" of the US who births a baby, would confer upon said baby, the golden ring of US citizenship -- much more than a Tijuana anchor baby.
Why don't the Democrats just declare their immigration policy to be, "People are people, so why should it be, You and I should get along so awfully?"
"Still in the larger context, Trump's violation doesn't seem significant."
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.
Prop 187 in California tried to deal with the issue. It banned welfare for illegals. It got 60% of the vote, even in Latino districts.
Of course the state Supreme Court reversed it and Brown was AG so he declined to appeal.
Then it was lied about for years and killed the GOP in California except the red inland districts.
Any violation of the Constitution by the President in any context is significant,<
So, Obama's "pen and phone" should have been grounds for impeachment?
Blogger steve uhr said...
Michael K. How many German POWs were born in the US?
Is there some reason why whenever you respond to a comment you disagree with you must always include an insult?
Only when the comment is stupid. Nobody was talking about "born." the issue was "under the jurisdiction."
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.
As stated above, the primary purpose of the amendment was to recognize that slaves born on U.S. soil were citizens. But what about everyone else?
As also stated above, the key is the "subject to the jurisdiction thereof" qualification. (1) Foreigners with diplomatic immunity are expressly not subject to U.S. jurisdiction. (2) Soldiers of an invading military force would not be subject to U.S. jurisdiction and there is no reason that the drafters of the amendment would have ever intended that invaders can make their children citizens, which would be the antithesis of sovereignty, recognizing that sovereignty is implicit to the concept of citizenship.
And how should that word "subject" be interpreted? (3) 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.? Are they then outside the terms of the amendment?
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.
It is highly unlikely that the Congress and states that passed the Fourteenth Amendment ever intended the newborns of people falling under scenarios (3) and (4) to automatically gain citizenship. Other than the accident of the place of delivery, they have no real connection to the nation. If they could claim citizenship on that insubstantial basis, then by the same reasoning their parents should be able to demand naturalization merely by stepping foot on U.S. soil for a moment or two.
That cannot be the law.
Ditto McCain.
McCain is a citizen because the Panama Canal Zone was American territory when he was born there.
To Michael K,
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 suspect that some may have been POWs
Related, Mitsugi Nishakawa was born in the US to Japanese citizen parents. In 1941 he was in Japan going to school and got drafted. Served in the Japanese army through the war.
After the war he attempted to come back and found that his US citizenship had been revoked for serving in the Japanese army. He fought, won and had his citizenship restored.
https://en.m.wikipedia.org/wiki/Nishikawa_v._Dulles
John Henry
I'd love for Trump to have the authority to issue such as Executive Order, but sadly I don't think he does.
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