Trump and the 14th amendment.

[Dinner]

When I first heard about Trump declaring he was going to issue and executive order banning anchor babies my first respond was "well, the courts will shut that down in two seconds..." but now I honestly am not so sure. It appears there is a history of court cases going back 100 years and the ultimate ruling on birthright citizenship for the children of illegal aliens has never actually been ruled upon by the SCotUS.

Next there is the matter of original intent, and you will remember we now have 5 out of 9 supreme court justices who swear original intent is all that matters to them, and it turns out "sojourners" where never intended to be covered by at least two of the people who originally wrote the 14th. They also spoke at great length about jurisdiction and being subject to it meant as well as several other terms in the 14th.

Here is a decent summary:

https://www.14thamendment.us/birthright_citizenship/original_intent.html

Pay special attention to the quotes by the authors of the 14th.

Now, I only give this a 25% chance at succeeding but I am surprised to find that what I thought was a bed rock principle enshrined in the constitution might actually not be and that it had never actually been tested on court directly over the last 150 years. Comments, thoughts, or additions anyone?

[Dinner]

I honestly don't think under even the most generous definition long term illegals would be found to not be covered by the 14th. I could easily seeing the new 5-4 conservative court ruling that things like Chinese birth tourism doesn't earn citizenship though. You never know though as the court could rule parents without valid residency visas or citizenship are "sorjourners". That might actually unwind two or even three generations of people who came here illegally and that seems like a scary barrel of fish to me.

I could definitely see Republicans liking the idea of making most hispanics noncitizens though as it makes their reelections so much easier.

[Dinner]

https://www.nytimes.com/2018/10/30/us/politics/trump-birthright-citizenship.html

New York Times article on this topic.

[Berzerker]

yawn

[Aeson]

I don’t think the conservatives on the court are so partisan that they will allow an EO to override established case law.

[Aeson]

If they are, it’s the final nail in the coffin of the Constitutional Replublic.

[Aeson]

When I first heard about Trump declaring he was going to issue and executive order banning anchor babies my first respond was "well, the courts will shut that down in two seconds..." but now I honestly am not so sure. It appears there is a history of court cases going back 100 years and the ultimate ruling on birthright citizenship for the children of illegal aliens has never actually been ruled upon by the SCotUS.

Next there is the matter of original intent, and you will remember we now have 5 out of 9 supreme court justices who swear original intent is all that matters to them, and it turns out "sojourners" where never intended to be covered by at least two of the people who originally wrote the 14th. They also spoke at great length about jurisdiction and being subject to it meant as well as several other terms in the 14th.

Here is a decent summary:

https://www.14thamendment.us/birthright_citizenship/original_intent.html

Pay special attention to the quotes by the authors of the 14th.

Now, I only give this a 25% chance at succeeding but I am surprised to find that what I thought was a bed rock principle enshrined in the constitution might actually not be and that it had never actually been tested on court directly over the last 150 years. Comments, thoughts, or additions anyone?

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 ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

[Aeson]

I think they are misreading those commas ... he said if you were born in the US and your parents were not diplomats that you’re a citizen.

[Jon Miller]

It is obviously not a literal reading. And probably not an originalist reading. Illegals are definitely under the jurisdiction of the US, otherwise we couldn't send them to jail/etc. They would be treated like diplomats!

Additionally, part of the push for the 14th was stability after the civil war. If you suddenly have it that people are being made non-citizens (or citizens) by EO then you stop having a stable set of citizens (who can vote) and you can forget about having a stable democracy. So even if you decide that it was originalist that the children of tourists and illegal immigrants are not citizens, and that the conflict between originalist and literalist interpretations are not important, you still wouldn't want to do it by EO.

JM

[ZEE]

Trump is such a great man.

Sent from my HTC Desire 626 using Tapatalk

[Dinner]

It is obviously not a literal reading. And probably not an originalist reading. Illegals are definitely under the jurisdiction of the US, otherwise we couldn't send them to jail/etc. They would be treated like diplomats!

Additionally, part of the push for the 14th was stability after the civil war. If you suddenly have it that people are being made non-citizens (or citizens) by EO then you stop having a stable set of citizens (who can vote) and you can forget about having a stable democracy. So even if you decide that it was originalist that the children of tourists and illegal immigrants are not citizens, and that the conflict between originalist and literalist interpretations are not important, you still wouldn't want to do it by EO.

JM

It is also interesting that courts ruled Indians are not automatic citizens of the U.S. despite being born in the U.S.. They didn't get citizenship until an act of Congress. I still give this a 75% chance of failing but I really am seeing a line where courts may just rule the other way.

Take this quote from one of the writers of the 14th:

"[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word..." He goes on to say foreigners in the U.S. do not have allegiance to the U.S. and so would not be citizens. While their home country would have claims upon their children.

It is an interesting argument and may, in an outside chance, actually succeed. Either way at least courts would rule on this century old issue.

[Dinner]

It is obviously not a literal reading. And probably not an originalist reading. Illegals are definitely under the jurisdiction of the US, otherwise we couldn't send them to jail/etc. They would be treated like diplomats!

Additionally, part of the push for the 14th was stability after the civil war. If you suddenly have it that people are being made non-citizens (or citizens) by EO then you stop having a stable set of citizens (who can vote) and you can forget about having a stable democracy. So even if you decide that it was originalist that the children of tourists and illegal immigrants are not citizens, and that the conflict between originalist and literalist interpretations are not important, you still wouldn't want to do it by EO.

JM

EO is certainly not the best way to go about it and it would certainly cause a huge destabilizing uproar.

[Dinner]

From the link earlier:

-----------------
Supreme Court decisions


The correct interpretation of the 14^th Amendment is that an illegal alien mother is subject to the jurisdiction of her native country, as is her baby.

Over a century ago, the Supreme Court appropriately confirmed this restricted interpretation of citizenship in the so-called "Slaughter-House cases" [83 US 36 (1873) and 112 US 94 (1884)]¹³. In the 1884 Elk v.Wilkins case¹², the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was considered not an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance."

The Court essentially stated that the status of the parents determines the citizenship of the child. To qualify children for birthright citizenship, based on the 14th Amendment, parents must owe "direct and immediate allegiance" to the U.S. and be "completely subject" to its jurisdiction. In other words, they must be United States citizens.
-----------------

There does indeed seem to be a fair amount of case law to support the claims that children of noncitizens do not automatically get citizenship.

Notice the part where it says "citizens of foreign states"? Another downside is if this goes the way Trump seems to want it then there could be measures against dual nationals.

[spambot]

It is also interesting that courts ruled Indians are not automatic citizens of the U.S. despite being born in the U.S.. They didn't get citizenship until an act of Congress. I still give this a 75% chance of failing but I really am seeing a line where courts may just rule the other way.

Indians had (have?) their own tribal governments with their own laws.

[Dinner]

Indians had (have?) their own tribal governments with their own laws.

Read the article and follow the sources. Much is explained about their argument.

I am saying 75% chance this fails but there is indeed a fair chance their arguments may actually win over 5 on the SCotUS.