Patterico's Pontifications

10/30/2018

President Trump Set To Sign Executive Order He Believes Will End Birthright Citizenship

Filed under: General — Dana @ 9:41 am

[guest post by Dana]

Seeking to further rally his base around a key campaign issue just one week before the midterms, President Trump said in an interview that he is prepared to sign an executive order ending the 14th amendment protections for babies born to non-citizens and illegal immigrants:

Trump told “Axios on HBO” that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

“It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.

When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)

“It’s in the process. It’ll happen … with an executive order.”

The 14th amendment says:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Axios notes the disagreement between legal experts:

Few immigration and constitutional scholars believe it is within the president’s power to change birthright citizenship, former U.S. Citizenship and Immigration Services chief counsel Lynden Melmed tells Axios.

But some conservatives have argued that the 14th Amendment was only intended to provide citizenship to children born in the U.S. to lawful permanent residents — not to unauthorized immigrants or those on temporary visas.

John Eastman, a constitutional scholar and director of Chapman University’s Center for Constitutional Jurisprudence, told “Axios on HBO” that the Constitution has been misapplied over the past 40 or so years. He says the line “subject to the jurisdiction thereof” originally referred to people with full, political allegiance to the U.S. — green card holders and citizens.

Michael Anton, a former national security official in the Trump administration, recently took up this argument in the Washington Post.

Anton said that Trump could, via executive order, “specify to federal agencies that the children of noncitizens are not citizens” simply because they were born on U.S. soil. (It’s not yet clear whether Trump will take this maximalist argument, though his previous rhetoric suggests there’s a good chance.)

But others — such as Judge James C. Ho, who was appointed by Trump to Fifth Circuit Court of Appeals, in New Orleans — say the line in the amendment refers to the legal obligation to follow U.S. laws, which applies to all foreign visitors (except diplomats) and immigrants. He has written that changing how the 14th Amendment is applied would be “unconstitutional.”

Here is Ilya Shapiro discussing the birthright citizenship amendment from a few years ago:

[W]hat about illegal immigrants? Illegal aliens and their children are subject to our laws and can be prosecuted and convicted of violations – unlike diplomats, who enjoy certain immunities, and unlike foreign invaders, who are generally subject to the laws of war rather than domestic civil law. The illegal immigrants’ countries of origin can hardly make a “jurisidictional” claim on kids born in America (at least while they’re here). Thus, a natural reading of “subject to the jurisdiction” suggests that the children of illegals are citizens if born here.

On the other hand, the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration. “Subject to the jurisdiction” probably meant primary allegiance to the United States as a sovereign.

My sense of the constitutional question – again setting aside my policy view that more liberal immigration laws (accompanied by vigorous border control to prevent crime, terrorism, and public-health issues) would resolve much of the illegal-alien problem – is as follows.

When the original public meaning of a legal text is unambiguous, you have to adopt that meaning unless it leads to absurd consequences. Here, the consequences may well be irrational and self-defeating: We prohibit unauthorized entry while offering an inducement, giving citizenship to the children of those who violate the law. So if Congress were to deny citizenship to children of illegal aliens, the Supreme Court might not declare that law unconstitutional. It’s a close call (read the strong arguments pro and con constitutional birthright citizenship by my friends Jim Ho and John Eastman, respectively).

Would the Court consider the consequences of a textual meaning that gives birthright citizenship to the children of illegal immigrants to be absurd? If so, the intent or purpose of the Fourteenth Amendment’s enactors might trump the text. On the other hand, and being realistic, if Chief Justice John Roberts can find that a mandate is a tax and that a federal exchange was established by a state, there’s no way that the current Supreme Court would eliminate birthright citizenship for anyone.

Also, make sure to read Ed Morrisey’s analysis of the 14th amendment and a decision called U.S. v. Wong Kim Ark.

[I guess thinking this should be done by an Act of Congress and the President’s signature on it, is out of the question…]

(Cross-posted at The Jury Talks Back.)

–Dana

329 Responses to “President Trump Set To Sign Executive Order He Believes Will End Birthright Citizenship”

  1. Here we go.

    Dana (023079)

  2. It always amuses me when conservatives look to ‘intent’ rather than ‘plain language’.

    aphrael (3f0569)

  3. R.I.P. (with the fishes) Whitey Bulger

    Icy (012153)

  4. Red meat to Trumpkins.

    nk (dbc370)

  5. this is such a good conversation to start having as dirty lick-lick Paul Ryan pursues other career choices that perhaps don’t focus so much on obstructing the will of the American voters

    happyfeet (28a91b)

  6. It always amuses me when conservatives look to ‘intent’ rather than ‘plain language’.

    For sure. And it will be fun watching some progressives morph into originalists on this lone issue.

    JVW (42615e)

  7. R.I.P. (with the fishes) Whitey Bulger

    Woah, sounds like he was killed in prison! Goes to show that vendettas are lasting, I guess. Though maybe we’ll find out that this was just low-rent prison pecking order stuff.

    JVW (42615e)

  8. There is a very good chance that he isn’t “set to sign” ANYTHING.

    Icy (012153)

  9. It always amuses me when conservatives look to ‘intent’ rather than ‘plain language’.

    aphrael (3f0569) — 10/30/2018 @ 9:45 am

    I think conservatives looks at BOTH the intent and ‘plain language’ of the text.

    The issue, imo, stems from the ‘plain language’ as to how it evolves over time. (ie, like many folks still believe “militia” only means the National Guard and not it’s statutory definition).

    I think the intent/plain language here is to not grant citizen to illegal alien children born on US soil… however, it hasn’t been applied that way for what… over 100 years? I’m not so sure the SCOTUS would want to rule in Trump’s favor… essentially punting the issue to Congress. Which, I would prefer anyways as voters can hold Congress more accountable than the courts.

    whembly (b9d411)

  10. when they writed the constitution

    there wasn’t a huge gigantic welfare state what served as a magnet for the least-desirable immigrants and the head lice what accompanies them

    happyfeet (28a91b)

  11. Would this Exec Order obviate Ted Cruz’s citizenship? if so, Beto is all for it, so long as it happens before 11/6.

    JRH (f51cae)

  12. I think the intent/plain language here is to not grant citizen to illegal alien children born on US soil… however, it hasn’t been applied that way for what… over 100 years? I’m not so sure the SCOTUS would want to rule in Trump’s favor… essentially punting the issue to Congress. Which, I would prefer anyways as voters can hold Congress more accountable than the courts.

    Until the 1920’s we basically let anyone any, stay for a few years and declare your a citizen, as long as you appeared to be white. The Naturalization Act of 1790, further reiterated in the Naturalization Law of 1802, was the law of the land until the 14th Amendment, and it specified birthright citizenship but did have the “free white” provision, which is kind of problematic, later amended to add blacks. So birthright citizenship has been a thing in the US for a few hundred years, with laws written by the same authors as the bill of rights. Also, US v WKA has been the law of the land for 130 years.

    Colonel Klink (Ret) (6e7a1c)

  13. anyone any

    I hate the Apple keyboard, and the new Air has the crappy keyboard. That’s it, I’m ordering a new Thinkpad right this minute…done, Amazon Prime Now, Carbon X1 delivery in 2 hours.

    Colonel Klink (Ret) (6e7a1c)

  14. Y’know, I really love President Trump and everything he says and everything he does, and my passion makes me giddy with naughty, which is why I think all sorts of porn about RINO neveryTrump sleazy nasty, and make the words dance around my tippity tappity feet, even though they rhyme like they want to make sense, but like they don’t, except with seasonal fruit.

    Appalled (96665e)

  15. OT: Today’s news includes word that Trump Wants $342,000 in Attorneys’ Fees From Stormy Daniels.

    I wrote in a comment here on October 15, 2018 — after analyzing the anti-SLAPP ruling that included the awards of attorney’s fees:

    I’m guessing $80k on the low end, $250k on the high end, and that the judge will award whatever’s asked for so long as it’s not obviously and deliberately inflated.

    My first reaction therefore was that Trump and his lawyers are indeed overreaching, seeking a fee award that’s obviously and deliberately inflated.

    But the explanation is that Trump’s lawyers are asking not just for their fees in researching, filing, and arguing the anti-SLAPP motion (brought under Texas law, oddly enough, since Stormy is a Texas resident, even though this is a case that started in a New York federal court and was transferred to a Los Angeles federal court), but also for their fees in the earlier transfer motion. They rely on a phrase in the Texas anti-SLAPP statute, Tex. Civ. Prac. & Rem. Code § 27.009(a)(1), which provides that courts “shall award” to the winning movant under the anti-SLAPP statute that party’s “court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require.” Trump’s interpreting “the legal action” more broadly than just “the defamation claim,” which is just one of many claims and counterclaims that have been filed by Trump and Stormy between each other.

    Of course, Trump’s lawyers aren’t shy about their own worth: Lead counsel Charles Harder is billing at an “effective hourly rate” of $841.64, and two senior colleagues are billing at $756.49 and $611.99. A junior member of the team in his second year of practice is billing at $307.60. I’m not as familiar with prevailing hourly rates for similar work in Los Angeles as I am in Houston or other Texas cities, of course, and the factors that Texas law prescribes oblige this court to look to prevailing local rates. Whether you think this is the sort of case that requires three lawyers at more than $600/hour, in addition to less expensive minions to do the research and grunt work, depends a lot on whether you analyze this as “a case involving the POTUS” or “a case involving a sleaze-bag who bedded and then tried to buy off a porn star.”

    Note well: The fees requested don’t necessarily — or even very likely — correspond to what Trump is actually contractually obligated to pay his own lawyers. The application recites that “the fees incurred in defending against this case were fixed and not contingent on the results obtained,” hence “Mr. Trump bore the risk of having to pay all the fees incurred had he not prevailed on the [anti-SLAPP motion].” But gosh-golly-gee, if there’s any major public figure with a hard-earned reputation for stiffing his lawyers more than Trump traditionally has, I’m certainly unaware of it, and the notion that Trump would actually pay $342k for this work out of his own pocket is a very funny joke. Still, the question is what fee would be “reasonable,” not whether Trump regularly pays reasonable fees, so this may fly despite its disconnection from objective reality.

    The Bloomberg headline ought to have read, though, “Trump Wants $342,000 in Attorneys’ Fees and another $342,000 in Sanctions”: Trump’s also asking for sanctions — not to make him whole, but to punish Stormy and Avenatti — “in an amount equal to or greater than the fee award.” That’s also consistent with the Texas statute and practice under it in the Texas courts, because the same “shall award” directive in the statute requires courts to award “sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”

    This is where Avenatti’s big mouth may well get his client, and conceivably him, into worse trouble. All of his trash talk and self-promotion paints a picture of a lawyer who’s been leading with his chin, daring some judge to punch him in it. However much is determined to be an appropriate award of legal fees and expenses, then, I would not be surprised to see the court follow Trump’s lawyers’ suggestion that the same amount be awarded as a sanction.

    The bottom line is still that U.S. District Judge James Otero has a ton of discretion, under the Texas anti-SLAPP statute as written and subsequently interpreted by courts in and out of Texas, to either tamp down or ramp up this award. The only thing I’m willing to predict with any confidence is that the final award, including both fees and sanctions, will be well into six figures but below seven. And getting meaningful appellate review will be very difficult, because both the Texas statute and the cases interpreting it stress the “discretion of the trial judge,” meaning an appellate court would normally have to find an “abuse of discretion” before overturning either the fees/expenses or sanctions award.

    Beldar (fa637a)

  16. Oh: And somewhat to my surprise, Trump’s motion doesn’t specifically ask that Avenatti be sanctioned under Federal Rule of Civil Procedure 11 (for signing a frivolous pleading) along with his client’s sanction under the anti-SLAPP statute. In other words, the motion asks that Stephanie Clifford aka Stormy Daniels be ordered to pay Trump these fees/expenses and sanctions, and not Michael Avenatti personally. I suppose it’s possible that the court might sua sponte (that is, on “it’s own motion”) decide to put them both on the hook, and it’s also possible that Trump’s lawyers could come back and ask that the same sanction be awarded against Avenatti personally under Rule 11 after they see how Judge Otero rules on the sanction against Stormy. It’s certainly hard for me to imagine Trump approving any extension of “professional courtesy” by only seeking the sanctions against Stormy, so he may not have been consulted on this topic by his lawyers.

    Beldar (fa637a)

  17. *its own motion … sigh.

    Beldar (fa637a)

  18. I would argue as a reply to Judge Ho’s argument that US citizens are obligated to follow the law in countries they visit or reside in and they are not considered citizens of those countries. If you’ve been granted a green card or legally entered the US as a visitor, student, temporary worker, etc, you’ve entered into a compact with the US government that we will allow you to stay here and possibly acquire citizenship in exchange for acknowledging our legal jurisdiction over you. I believe we are the only Western democracy to extend birthright citizenship to all comers, however you came here and it serves as a magnet, both in Chinese birth tourism and the illegal immigration across the southern border. I would prefer the change coming from Congress and noticed that Graham, that noted amnesty advocate, has said he would do so. Speaking as a former immigration officer and the spouse of a foreign national who came here legally many years ago, it’s time for the magnet to be shut off.

    CygnusAnalogMan (9c66ec)

  19. When Trump signs that EO declaring hot fudge sundaes calorie free, voters will eat it up.

    DCSCA (797bc0)

  20. apple keyboards are pretty gay and utterly useless if you have real work to do

    this is why i eschew them

    happyfeet (28a91b)

  21. Poor Stormy will catch pneumonia trying to pay that off.

    nk (dbc370)

  22. ikes looks like dirty Bob Mueller’s got himself a nasty little metoo problem

    sleazy FBI sleazers gonna sleaze

    what can you even say

    it is what it is

    happyfeet (28a91b)

  23. I believe we are the only Western democracy to extend birthright citizenship to all comers, however you came here and it serves as a magnet, both in Chinese birth tourism and the illegal immigration across the southern border.

    The Maple-Leaf State also has unconditional birthright citizenship.

    They’re such wannabes.

    Dave (9664fc)

  24. Everything Apple is Millenial, which includes what you said with the addition of neuroses, consumerism, narcissism, and the pollution and impurification of society’s precious bodily fluids.

    nk (dbc370)

  25. Appalled (96665e) — 10/30/2018 @ 10:51 am

    6/10

    needs to be punchier, broken up into a lot more shorter bursts of footsiness and without run-on sentences all up in it

    Dave (9664fc)

  26. @ Dave – referenced in the Wikipedia article

    Exceptions

    Subsection 3(2) of the Act states that Canadian citizenship by birth in Canada is not granted to a child born in Canada if neither parent is a Canadian citizen or permanent resident, and either parent was recognized by Global Affairs Canada as employed by the following at the time of the child’s birth:[11]

    a foreign government in Canada,
    an employee of the foreign government in Canada, or,
    a foreign organization which enjoys diplomatic immunity in Canada, including the United Nations.

    So, if your parent isn’t a Canadian citizen or permanent resident, you aren’t either. Much like the Europeans do. Heck, if your mom is a Canadian citizen but your dad is on the diplomatic staff of the US Ambassador to Canada, you are SOL. Unless, you apply for naturalization via the mom’s citizenship status. It’s not automatic like it is here. Hence, the much derided (by liberals and immigration squishes) anchor baby.

    CygnusAnalogMan (9c66ec)

  27. I believe we are the only Western democracy to extend birthright citizenship to all comers, however you came here and it serves as a magnet, both in Chinese birth tourism and the illegal immigration across the southern border

    Just about every country in the Western Hemisphere, besides Columbia. Until the mid-2000’s most of the Commonwealth countries had Jus Soli citizenship, but Europe is generally limited to if one parent is a citizen or the parents are permanent residents.

    Colonel Klink (Ret) (6e7a1c)

  28. I would support a constitutional amendment to (non-retroactively) give Congress the power to determine the laws of citizenship for children of people without citizenship or permanent residence.

    A number of practical details seem problematic though:

    Currently it is pretty easy to determine whether someone is a citizen by their birth certificate. If birthright citizenship depends on the status of your parents, it becomes rather more difficult. What if your father was a citizen, but abandoned your mother before birth? What if the father is unknown? Would courts order DNA testing of potential fathers to determine the citizenship of newborns? What if the alleged citizen-father is deceased?

    While I’m in favor of the idea in abstract, I do wonder how feasible it really is.

    Dave (9664fc)

  29. So, if your parent isn’t a Canadian citizen or permanent resident, you aren’t either.

    Read more carefully.

    If your parent isn’t a Canadian citizen or permanent resident AND they are an employee of a foreign government or an organization with diplomatic immunity, THEN you are not a citizen.

    Basically it is the same as us, I think – foreign diplomatic personnel are exceptions.

    Dave (9664fc)

  30. 25

    e.e cummings on acid, I think

    with rightwing foolishness

    no punctuation

    but dirty sleazy nasty Rino nevertrumper trash

    In bits.

    Appalled (96665e)

  31. Appalled (96665e) — 10/30/2018 @ 12:23 pm

    8/10

    still some tell-tale capitalization non-errors and a little weak on content, but getting there

    Dave (9664fc)

  32. Would this Exec Order obviate Ted Cruz’s citizenship? if so, Beto is all for it, so long as it happens before 11/6.

    JRH (f51cae) — 10/30/2018 @ 10:27 am

    No. One of his parent (mother?) is a US citizen.

    whembly (b9d411)

  33. I’m guessing that #22 is a reference to a superduper exclusive story running on one of the Trumpkin worship sites, one that rhymes with “HatewayNumbTwit.” Here’s a view of the story from another angle and a more reputable source: Special counsel asks FBI to investigate conspiracy against Mueller:

    The office of the special counsel investigating the 2016 election has asked the FBI to investigate whether women have been offered money to make claims of sexual harassment against Robert Mueller.

    Peter Carr, a spokesman for the special counsel’s office, told The Hill in an email: “When we learned last week of allegations that women were offered money to make false claims about the Special Counsel, we immediately referred the matter to the FBI for investigation.”

    ….

    Mueller’s office confirmed that they learned of the scheme from several journalists who were approached by a woman who said she had been offered $20,000 to make sexual assault allegations against Mueller, The Atlantic reported.

    The unnamed woman in a recent email to multiple journalists wrote that GOP activist named Jack Burkman asked her “to make accusations of sexual misconduct and workplace harassment against Robert Mueller” in exchange for the money.

    Mueller’s office confirmed that they learned of the scheme from several journalists who were approached by a woman who said she had been offered $20,000 to make sexual assault allegations against Mueller, The Atlantic reported.

    The unnamed woman in a recent email to multiple journalists wrote that GOP activist named Jack Burkman asked her “to make accusations of sexual misconduct and workplace harassment against Robert Mueller” in exchange for the money.

    There are Trumpkin versions of Avenatti, of course, which should surprise no one at all.

    Beldar (fa637a)

  34. What if he gave it a cool name, like maybe “The Cuckoo’s Egg Defense Order”?

    Or, maybe he could call the practice, “Assault Gun Style Citizenship.”

    jim2 (a5dc71)

  35. I actually did look at the drivel over on HatewayNumbTwit, which is indeed from this Burkman fellow, who’s produced a name-redacted written statement purporting to be from someone who’s willing to say, essentially: “I got raped when I went with a man from the bar at the St. Regis Hotel to his room in 2010, but I woke up suddenly in 2018 to realize it was Robert Mueller.”

    Beldar (fa637a)

  36. the chick Bob Mueller raped can even tell you where he raped her

    rape hoaxer Christine Ford couldn’t even tell you the zip code

    happyfeet (28a91b)

  37. Citizenship by dint of birth on USA soil and posse comitatus are farcical doctrines. Someone, somewhere, sometime, must initiate a serious judicial review of each. If not a POTUS, who?

    If one wishes to argue that an Executive Order can’t change the current interpretations of relevant statute or precedent? Duh. We live in a time when a single judge can stop a POTUS from exercising basic and expressly named functions.

    The other meme, which came up at Pittsburgh, is that this is not THE solution to the X problem (immigration in this case). Who said it was? DJT’s order would be A solution. It is A beginning.

    Speaker Ryan is a corporate tool. He can shut up. Would he have told Dr. King to go home because current interpretations of law were against his cause? Ask him when was the last time the House under his leadership passed a budget in regular order.

    I am thrilled to see DJT plowing ahead into fields we must secure.

    Ed from SFV (6d42fa)

  38. Exceptions

    Subsection 3(2) of the Act states that Canadian citizenship by birth in Canada is not granted to a child born in Canada if neither parent is a Canadian citizen or permanent resident, and either parent was recognized by Global Affairs Canada as employed by the following at the time of the child’s birth:[11]

    a foreign government in Canada,
    an employee of the foreign government in Canada, or,
    a foreign organization which enjoys diplomatic immunity in Canada, including the United Nations.

    Except that is not the law in Canada, it’ exactly the opposite, you don’t get citizenship if you were a diplomat or work for an organization with diplomatic immunity. You could just look at the Canadian Citizenship site.

    Jus soli is Latin for “right of the soil,” and implies that citizenship or nationality is granted to anyone born within the territory or state that enforces these laws. This means that if you are born in Canada, you are considered a Canadian citizen. Even the children of foreign nationals automatically become Canadians if they are born in Canada.

    Nonetheless, if you have a child born in Canada that does not impart citizenship upon the parent. There is a chance that your child and you will not be allowed to stay in Canada. This is due to the widespread act defined as birth tourism where people who are not Canadian have children in Canada to give them citizenship and a chance at a better life.

    The Canadian Government is trying to discourage birth tourism, but that doesn’t mean there aren’t legal ways for you to become a citizen. You will first have to obtain permanent residence, then when you qualify you can apply to be naturalized as a citizen.

    However, having a Canadian child will not give you any special advantage to obtain permanent residence in Canada. The presence of children is of little relevance to most types of permanent residence applications, which focus on having work skills and education, or otherwise on the ability to become economically established in Canada.

    If you have a Canadian child and you are not a Canadian permanent resident, you could still remain in Canada with the child as a temporary resident, such as a visitor, student, or worker, provided that you qualify for these types of status. However, the Canadian immigration authorities will not grant you temporary resident status simply because you have a Canadian child.

    In fact, most birth tourists or other foreigners who happen to have a child in Canada will have to return to their home countries together with the child. Once the child is old enough, he or she can return to Canada on their own and begin their life in Canada, since they will have the right to remain in, study in, and work in Canada. However, the Canadian child may never be able to bestow the right to live in Canada upon their birth parents, since even the parental sponsorship category is becoming increasingly restricted. For those who engage in birth tourism this is not their major concern, but for those who otherwise find themselves pregnant in Canada and are wondering whether to give birth here, these are important considerations.

    Colonel Klink (Ret) (6e7a1c)

  39. Citizenship by dint of birth on USA soil and posse comitatus are farcical doctrines. Someone, somewhere, sometime, must initiate a serious judicial review of each. If not a POTUS, who?

    Well, since it’s been the law in the United States since 1790 when Congress did, there was the whole 14th amendment to the Consitution in 1868, in 1898 the Supreme Court did. Other than that, no one has initiated a serious judicial review, but sure, Donald J. Trump is the man for the job. He’s such a student of history and the Constitution.

    Colonel Klink (Ret) (ab0951)

  40. Donnie, Donnie, he’s our man, if he can’t do it…well probably most other people can, or he could just lie about it and a bunch of rubes will believe he did it.

    Colonel Klink (Ret) (ab0951)

  41. #31

    It may not be a location worth getting to. The guy has a gift for words and their rhythm, which is why I keep playing (and probably why he has never got a Patterico death sentence). But he has the sort of imagination I would rather leave to Stormy Daniels’ screenwriters.

    Appalled (96665e)

  42. Discussion of this supposed proposed executive order — right now, before in fact there’s an order ready to sign, a week away from the midterm elections — is something that Trump obviously thought would be good for the Trump Brand.

    It’s likely to be poison for a dozen or more GOP congressional districts that are teetering in the balance, once again demonstrating how interests of “the Trump Brand” don’t correspond to those of the GOP generally, nor those of conservative policy.

    He cares about nothing but himself. If you think he cares about you or things you believe in, then you’re the rube he’s conned.

    Beldar (fa637a)

  43. From US v. Wong Kim Ark: (emphasis added, possibly)

    >The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King

    aphrael (e0cdc9)

  44. Beldar, one might think this is a way of rodent procreating Ted Cruz one last time.

    urbanleftbehind (5eecdb)

  45. @28 Dave: “If birthright citizenship depends on the status of your parents, it becomes rather more difficult. What if your father was a citizen, but abandoned your mother before birth? What if the father is unknown? Would courts order DNA testing of potential fathers to determine the citizenship of newborns? What if the alleged citizen-father is deceased?”

    These are questions of definite concern to the people who might be affected by them, but while I’m not particularly happy to say this, I think the only possible answer may be: Tough luck, dudes.

    Or to walk that back to a general point I think is less disputable: Whatever law is passed to set the requirements of fitness for citizenship, it will exclude some people to whom — and about whom — that exclusion will seem “unfair” in the sense of appearing to punish people for circumstances they couldn’t control. If that is a disqualifying criterion, then no conceivable law can possibly meet that standard.

    Stephen J. (308ea7)

  46. I can see “citizenship tourism” ending. It would NEVER have occurred to the 1865 Congress that people could ever causally travel to the US while pregnant, give birth and go home, scoring a birth certificate. It’s clearly an abuse of the process.

    Further, the reasoning behind not granting citizenship to diplomats, being temporary residents with no intention of settling here, would seem to apply to the tourists.

    This could be extended to others who come here illegally AND temporarily for similar reasons. But the last bit — barring all offspring of illegal residents from citizenship no matter how long they stay — seems unlikely to get through the courts.

    Then again, I’ve been surprised before. Congress may have this power. An executive order is a stupid way to go about it, as it’s inevitable revocation by a later administration would just cause chaos, without lasting long enough for the Supreme Court to test.

    Kevin M (a57144)

  47. “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said. “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”

    Don McGahn leaves, and after a few days, we get this.

    Who';s the “they?”

    Stephen Miller? Steve Bannon?

    Now this argument has bene made for some time, and it’s a quack idea.
    `
    And if he could do it, it would be retroactive, because the only premise by which he could do it would be reinterpreting the law.

    Sammy Finkelman (102c75)

  48. 46. Kevin M (a57144) — 10/30/2018 @ 1:18 pm

    I can see “citizenship tourism” ending. It would NEVER have occurred to the 1865 Congress that people could ever causally travel to the US while pregnant, give birth and go home, scoring a birth certificate.

    You know why?

    Because there was no such concept at the time of an illegal immigrant. Anybody who got into the United States could stay, and anybody who got off as ship could come. So there was no motive.

    Another reason is people didn’t make short visits so you wouldn’t have many citizens with no real connection to the United States..

    Sammy Finkelman (102c75)

  49. you gotta

    celebrate trump, baby

    you gotta praise him like you should

    happyfeet (28a91b)

  50. ending the 14th amendment protections for babies born to *non-citizens* and illegal immigrants:

    I see Marla’s hand behind this. Were Ivana (wife one) and Melania (wife three) citizens when they had Trump’s kids?

    nk (dbc370)

  51. Another reason is people didn’t make short visits

    The reason you didn’t have short visits was because coming here by ship was a LONG ordeal. Long enough that turning around a week later and going home was something only sailors did.

    Kevin M (a57144)

  52. At this site, more than any other place in the universe, we are totally praising Trump like we should.

    nk (dbc370)

  53. James Michael Curley wrote in his autobiography that in 1911 he gave aspeech to Congressagainst immigration restriction. But he wrote what he actually did is find an 1867 speech that somebody else gave. Nobody knew it.

    In 1868 the United states sighned a treaty with China known as the Burlingame-Seward Treaty of 1868. It stated there was aright to emigrate to the United States (because the Chinese government was restructing it.

    Some defunct economist reversed the theory as to what was benefiical sometiome betwene then and 1884.

    Sammy Finkelman (102c75)

  54. but everybody hates birthright citizenship

    birthright citizenship’s a stinky fart in church

    this is shrewd politics

    happyfeet (28a91b)

  55. Paul Ryan pushes back against Trump:

    “Well, you obviously cannot do that,” he said during an interview Tuesday with Lexington, Kentucky’s WVLK radio. “You cannot end birthright citizenship with an executive order. We didn’t like it when Obama tried changing immigration laws via executive action, and obviously as conservatives we believe in the Constitution.”

    Yes.

    Dana (023079)

  56. ending the 14th amendment protections for babies born to *non-citizens* and illegal immigrants:

    I see Dana’s mistake behind that. Who the F is talking about children of LEGAL residents not being covered by the 14th Amendment?

    Kevin M (a57144)

  57. I can see “citizenship tourism” ending. It would NEVER have occurred to the 1865 Congress that people could ever causally travel to the US while pregnant, give birth and go home, scoring a birth certificate. It’s clearly an abuse of the process.

    Further, the reasoning behind not granting citizenship to diplomats, being temporary residents with no intention of settling here, would seem to apply to the tourists

    I seem to remember that argument, somewhere. Oh yeah, the founder’s never meant an AR-15 (insert any evil black rifle), said every gun control proponent ever.

    It’s the constitution, the words are there, and their meaning is known, highlighted above.

    If you want a new Constitutional amendment replacing the 14th, get on that, there is a known process.

    Colonel Klink (Ret) (ab0951)

  58. I see Dana’s mistake behind that. Who the F is talking about children of LEGAL residents not being covered by the 14th Amendment?

    The Constitution is the F talking about it.

    Colonel Klink (Ret) (ab0951)

  59. Trump himself did not state that offspring of legal residents (green card holders, l-permanent residents) are off limits, Kevin. That task, however, is the contribution Lindsay Graham can make – clarify as many of the permutations of both living and prospective birth parent scenarios – with his forthcoming legislation so as not to form a panic (hence my r-f worry about Cruz).

    urbanleftbehind (5eecdb)

  60. Who the F is talking about children of LEGAL residents not being covered by the 14th Amendment?

    Especially consider this is JUST what the 14th Amendment was about. The Dredd Scott case was decided based on the idea that non-whites could never be citizens. Laws at the time restricted citizenship to those whose grandfather was a citizen, which prevented black children from being citizens.

    While I doubt that the courts would allow the 14th Amendment to except illegals, they might. But this other is just crazy talk.

    Kevin M (a57144)

  61. Trump himself did not state

    Yeah, because he rigorously vets each word he utters.

    Kevin M (a57144)

  62. Considering Kanye West has been prattling about the 13th, now the 14th, will we see Kemp or DeSantis just throw down the hammer and de facto repeal the 15th? Thats a lot of memery to be made at an opportune moment.

    urbanleftbehind (5eecdb)

  63. trump makes me glow

    then i get mad at rapey nevertrumptrash

    how can feeling so good make me feel so bad?

    at least there is seasonal produce

    Appalled (96665e)

  64. Especially consider this is JUST what the 14th Amendment was about. The Dredd Scott case was decided based on the idea that non-whites could never be citizens. Laws at the time restricted citizenship to those whose grandfather was a citizen, which prevented black children from being citizens.

    While I doubt that the courts would allow the 14th Amendment to except illegals, they might. But this other is just crazy talk.

    Except the Supreme Court has already weighed in, this has been decided for 130 years, and even then it wasn’t controversial, it’s been the law of the land since the founding of the nation.

    Colonel Klink (Ret) (ab0951)

  65. The Constitution is the F talking about it.

    Hunh? Where does the Constitution even hint that that only citizens can bear citizens?

    Kevin M (a57144)

  66. Klink, you need to reread my posts, I think.

    Kevin M (a57144)

  67. The only controversial part was “whites only” bit.

    Colonel Klink (Ret) (ab0951)

  68. Sorry, “free whites”

    Colonel Klink (Ret) (ab0951)

  69. You might not realize this, but I’m not an ideologue like you or mg. So, I might be arguing the middle. Please improve your reading comprehension and stop the knee-jerk responses.

    Kevin M (a57144)

  70. The argument about Ted Cruz was never that he wasn’t a U.S. citizen, but rather, that he wasn’t a “natural born” U.S. citizen for purposes of the minimum requirement to be POTUS under Article II, Section 1, Clause 5 of the Constitution, which requires that the POTUS be a “natural born” citizen. It was always stupid argument, but it was a different stupid argument than the Fourteenth Amendment “no birthright citizenship” argument, to which the key is not the “natural born” provision of Article II, but the “subject to the jurisdiction thereof” provision of the Fourteenth Amendment. On that question, I agree with the views expressed by then-lawyer, now-Fifth Circuit Judge James C. Ho: Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, whose bottom-line opinion is that the “text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most U.S.-born children of aliens, including illegal aliens.”

    Beldar (fa637a)

  71. I think you need to reread the constitution, any child born in the United States has the right of citizenship. There is no mention of the parentage, other than diplomats.

    You may want to argue that for “free whites”, there was no such thing as illegal immigration in the United States until the 1920’s, so why would they mention it. That, of course, leads to some other issues. The 14th Amendment exists, it’s in the constitution, it’s meaning is patently obvious.

    If you want activist judges to overturn the constitution, that’s a different argument. The solution is a Constitutional amendment to replace/revise/repeal the 14th.

    Colonel Klink (Ret) (ab0951)

  72. Its not a subject that interest me much , perhaps if I had been born here:

    https://mobile.twitter.com/bigsteve207?lang=en

    narciso (d1f714)

  73. I’m not yet persuaded by Judge Ho’s assertion that “a constitutional amendment is … the only way to restrict birthright citizenship.” I don’t think the Fourteenth Amendment restricts Congress from adjusting, through legislation, who is to be “subject to the jurisdiction” of the United States on a going-forward basis. But I don’t see that as a proper matter for presidential decree by executive order.

    Beldar (fa637a)

  74. It might be roidiculous but who says the law has to make sense? Trump is all for enforcing the law (except maybe marijuana laws, but Jeff Sesssions is for that, too) regardless of how you feel about it. So how is this an argument?

    The law doesn’t make sense to you, so therefore it is not the law? And shouldn’t be followed?

    Sammy Finkelman (102c75)

  75. 73. Congress could give illegal immigrants diplomatic immunity, I suppose and so long as they retsained it, they would not be citizens.

    Sammy Finkelman (102c75)

  76. It’s a practical matter, there’s a reason that can’t just replace the 2nd amendment, and that one would actually get popular support, at least more than repealing the 14th. There is nothing to “judicially review”, once the SCOTUS allowed non-whites, it’s a known known.

    Commonwealth countries have replaced Jus Soli citizenship, Canada has toyed with it, but in countries with a constitutional foundation like ours, Ireland for instance, requires an amendment. If American’s want it enough, there’s a process.

    Trump’s ignorance of both American history and how the Constitution is galling, I actually haven’t seen much evidence he knows much about anything, but this is civics 101.

    Colonel Klink (Ret) (ab0951)

  77. I’m not yet persuaded by Judge Ho’s assertion that “a constitutional amendment is … the only way to restrict birthright citizenship.” I don’t think the Fourteenth Amendment restricts Congress from adjusting, through legislation, who is to be “subject to the jurisdiction” of the United States on a going-forward basis. But I don’t see that as a proper matter for presidential decree by executive order.

    Beldar (fa637a) — 10/30/2018 @ 1:50 pm

    I’m not convinced I agree with Judge Ho… but, then again I’m not a constitutional scholar, jurist nor attorney.

    Isn’t the and subject to the jurisdiction thereof blurb means not owing allegiance to any other sovereign?

    An illegal alien, while still can be subjected to the laws of the US, still owes allegiance to their home country on technically (since they’re not citizen, nor do have formal residency/green card). As such, any child born under this criteria wouldn’t satisfy the subject to the jurisdiction thereof criterion?

    And… as a practical matter, what does and subject to the jurisdiction thereof really mean? Do all they have to do, is verbally announce “I owe no allegiance to my home country!”, pop a baby and that child is now a US citizen… or is it more formal than that?

    whembly (b9d411)

  78. Mr. feets, you might want to re-read that story about the Mueller.

    Might’ve missed a detail or three.

    Icy (6efe21)

  79. It’ll all come out in court Mr. Icy, as long as the statute of limitations for doing rape on somebody hasn’t passed yet

    happyfeet (28a91b)

  80. I think you need to reread the constitution, any child born in the United States has the right of citizenship. There is no mention of the parentage, other than diplomats.

    I’ve fracking read Madison’s Notes in college. I’m up on the Constitution. The 14th Amendment has a weasel clause and just how big that clause is, is up for debate.

    To assert that the rule has always been a strict birthright citizenship ignores the reality for Blacks, Asians and Native Americans both before and after the 14th Amendment. The main reason that whites received automatic citizenship (even after immigrating) was that there was no way to track anyone until well into the 20th Century.

    It is a mistake to assume that a Constitutional clause, no matter how airtight, covers situations that where wholly outside the ken of the crafters. In the case of the 14th Amendment, casual intercontinental travel in mere hours was never considered. Had it been, the language that exempted diplomats and some Indian tribes would likely have included transients.

    Or maybe not. But the idea of “citizenship tourism” is suspect and ONLY exists through legal inertia.

    Now, I happen to believe that any child born to an actual immigrant, whatever their status, is a citizen under the 14th Amendment. But an immigrant is different than a tourist. They intend to create a life here, and THAT is why the child is a citizen: This is its country.

    Kevin M (a57144)

  81. On the other hand, the Fourteenth Amendment’s enactors probably didn’t intend birthright citizenship for illegal immigrants. At ratification in 1868, there were no illegal immigrants and no law had ever restricted immigration.

    And enacting such a law didn’t
    change the text of the 14th amendment.

    By the way there’s nothing in the constitution that gives the federal government any power to declare the presence of any people illegal. States, yes.

    The constitution gives the federal government power over naturalization not immigration.

    https://www.usconstitution.net/const.txt

    Article 1. Section 8

    The Congress shall have Power…

    …To establish an uniform Rule of Naturalization, and uniform Laws on the subject
    of Bankruptcies throughout the United States

    Is there anythuing here about immigration? No more than Congress has the power to write a commercial code because it has the power to establish a unifrm law on bankruptcies.

    And if you had any doubt there’s the Tenth amendment:

    Amendment 10
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    And if you still hjasd questions, and the word “uniform” wasn’t enough for you, there’s a clause that specifically implies that power over immigration belongs to the states:

    Article 1. Section 9:

    The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

    Now you may argue, Congress may supercede state laws then.

    Any power the fedferal goverment has is derivative of the power to regulate foreign commerce and to provide for the national defense.

    The only thing is, states have not specifically argued this.

    But Trump has appointed originalist and textualist judges.

    Sammy Finkelman (102c75)

  82. Do all they have to do, is verbally announce “I owe no allegiance to my home country!”, pop a baby and that child is now a US citizen… or is it more formal than that?

    I believe that any child born to an actual immigrant, whatever their status, is a citizen under the 14th Amendment. But an immigrant is different than a tourist. They intend to create a life here, and THAT is why the child is a citizen: This is its country.

    It might be reasonable to put some condition of residency on that. If the parents go home early on, the child no longer grows up an American. So, maybe they become citizens at age 3 or 5, given continuous residence.

    Kevin M (a57144)

  83. Sammy, Congress has enumerated powers to deal with immigration and naturalization, at least after 1808. It does not have the power to defrock native-born citizens. Probably not even those born to illegals PRIOR to a new interpretation of #14.

    Kevin M (a57144)

  84. “Subject to the jurisdiction” probably meant primary allegiance to the United States as a sovereign

    No, it doesn’t. It means to exclude Indians not taxed. They weren’t living under United States law, although within the external boundaries of the United States.

    In 1917, Congress extended citizenship to Indians in order to draft them into the army. (or such was the legal opinon at the time)

    In reality, I think no Indians were outside the jurisdiction of the United States after about 1890.

    Sammy Finkelman (102c75)

  85. But I don’t see that as a proper matter for presidential decree by executive order.

    The chaos it would cause after President Warren revoked the order is unimaginable.

    Kevin M (a57144)

  86. In reality, I think no Indians were outside the jurisdiction of the United States after about 1890.

    The Seminole never accepted that privilege.

    Kevin M (a57144)

  87. 83. The idea that Congress has power over immigrration, as opposed to naturalization. is a mirage, and the proof of it is that the American or Know Nothing Party of the 1850s, to my knowledge, did not propose any federal immigration law, on;y things like creating a 21-year waiting period for natrlization.

    The Emperor has no clothes!

    Sammy Finkelman (102c75)

  88. I think the Seminole were eventually brought under the jurisdiction of the United States, and before 1866, Cesar Sayoc notwithstanding.

    Sammy Finkelman (102c75)

  89. No, chaos is what coudl happen if gay marriage was suddenly revoked.

    This would cause chaos right away because there would be no easy way to prove citizenship if abirth record would not do it..

    Sammy Finkelman (102c75)

  90. “Subject to the jurisdiction”

    A reasonable interpretation of that would be “legally obligated to pay income tax.” And again, birthright tourism seems suspect.

    Kevin M (a57144)

  91. @ whembly (#77): My belief is that on a forward-going basis — to avoid ex post facto problems with stripping someone currently enjoying “birthright” citizenship — Congress is absolutely free to specify, through ordinary legislation, what “subject to the jurisdiction thereof” means for purposes of the Fourteenth Amendment.

    For one thing, Section 5 of the Fourteenth Amendment provides: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

    For another, elsewhere in the Constitution (including in Article III with respect to the federal judiciary), the Founding Fathers repeatedly delegated to Congress the job of establishing the “jurisdiction” of the United States, as that word is used in a variety of different contexts, but occasionally subject to express exceptions contained within the Constitution itself (as when Article III, Section 2 assigns to the SCOTUS original (i.e., trial court) jurisdiction over suits between states).

    It’s entirely commonplace for the “jurisdiction” of the federal courts, for instance, to expand and contract as Congress lives and breathes and amends the Judiciary Act, which dates back to 1789 but is still regularly tweaked. In the absence of congressional action, however, the “subject to the jurisdiction” language has previously been interpreted by Congress, courts, and past POTUSes to include pretty much everyone but diplomats and their kids who are physically present within some territorial space in which U.S. law is enforced by U.S. law enforcement officials.

    Beldar (fa637a)

  92. Indians not taxed were not counted for purposes of apportionment of members of the House of Represenatives both in the original constituion and in the 14th amendment which attempted to reduce representation for states that did not give all males except those who participated in rebellion or committed other crimes over the age of 21 the right to vote. It wss mostly superceded by the 15th amendment and never enforced.

    2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State

    Felons yes, Not many other reasons.

    Sammy Finkelman (102c75)

  93. This would cause chaos right away because there would be no easy way to prove citizenship if abirth record would not do it..

    1) not retroactive, I hope.

    2) The birth record shows the parent’s names and places of birth. It could show their nationality and, if necessary, visa status. Or, there could be a checkbox for those who prefer not to state nationality: “not to be used to show US citizenship.”

    Kevin M (a57144)

  94. Sammy, a person not subject to tax is not a citizen.

    Kevin M (a57144)

  95. Nor is he subject to US law in general.

    Kevin M (a57144)

  96. Kevin M (a57144) — 10/30/2018 @ 2:36 pm

    A reasonable interpretation of that would be “legally obligated to pay income tax.” And again, birthright tourism seems suspect.

    A poerson of Chinese origin, born in the United States but whio stayed here only a month or two, is indeed legally obligated to file United States federal income tax returns.

    Congress has made it very difficult to renounce citizenship and now requires an exit fee.

    Yes the IRS can go after them.

    Maybe you could say certain things imply renunciation. Technically, joining a foreign army does. It’s 98% mot enforced. (being drafted doesn’t count by the way)

    Anything like this would not pass Congress.

    Sammy Finkelman (102c75)

  97. “Trump’s ignorance of both American history and how the Constitution is galling, I actually haven’t seen much evidence he knows much about anything, but this is civics 101.”
    Colonel Klink (Ret) (ab0951) — 10/30/2018 @ 1:59 pm

    Does civics 101 cover the penumbras and emanations clause?

    Munroe (14a24e)

  98. BTW, Whitey Bulger has now completed the first of his two life sentences.

    Kevin M (a57144)

  99. month or two

    How about 5 days?

    Kevin M (a57144)

  100. seeing as the bergdahl five have joined the Taliban bench:

    https://www.longwarjournal.org/archives/2018/10/general-raziqs-assassin-trained-at-a-taliban-camp.php

    farrow was so enthused about the negotiations, as if he was being served chocolate cake

    narciso (d1f714)

  101. This is a BS talking point by Trump for Trumpkins even more ignorant than Trump. What he said, is all he knows. He couldn’t tell you what Article I is or what the Fourteenth Amendment is or what the Wong Kim Ark case is, if you threatened to take away his ketchup and Diet Coke.

    nk (dbc370)

  102. Is this poll of likely voters an outlier?

    Senator Ted Cruz R-TX now has a 10 point lead in the race for U.S. Senate over his Democrat challenger, Congressman Beto O’Rourke D-El Paso. That is according to the latest CBS 11 / Dixie Strategies Texas Poll released Tuesday – one week before Election Day. The poll also finds Texas Governor Greg Abbott has opened a commanding lead over his challenger for that office, former Dallas County Sheriff and Democrat Lupe Valdez.

    ….

    If the election for Senator were held today, 52% of likely voters in Texas said they would vote for incumbent Cruz while 42% said they would vote for O’Rourke. Just one month ago in the same poll the race could have been considered a dead heat. That spread was down to just 4% – within the margin of error – with Cruz at 46% and O’Rourke still at 42%. It would appear that many of the voters who were undecided back in September are now leaning towards Cruz.

    ….

    Abbott leads Valdez 59%-33% – a 26% margin which is up from 19% in the September poll.

    ….

    The poll surveyed 588 likely Texas voters between October 25-26th. Of those, 253 are Republicans, 223 are Democrats, and 112 are Independents. [This means that the poll likely oversampled both Democrats & independents, IMHO. — Beldar] The margin of error is +/-4.04%.

    I don’t think it’s an outlier, but rather, that the polls are just catching up to the basic reality: Beto O’Rourke’s best day as a candidate was the day he announced, and the more Texans got to know about him, the better Ted Cruz’ prospects would look. The rest of the down-ballot statewide races show similar margins, with undecideds breaking toward the GOP since this same poll was last conducted. I will not be a bit surprised if Abbott’s total exceeds 60%.

    Beldar (fa637a)

  103. Kevin, et al, I need to dial it down a bit, because when Trump does something so incoherently stupid, I get angry. Now that I’m retired, a week and a day and a half, I’m way too available to read, get mad, lash out, so dialing it down.

    To assert that the rule has always been a strict birthright citizenship ignores the reality for Blacks, Asians and Native Americans both before and after the 14th Amendment. The main reason that whites received automatic citizenship (even after immigrating) was that there was no way to track anyone until well into the 20th Century.

    The Supreme Court ruled specifically on that in 1898 in United States v. Wong Kim Ark. And starting in 1790 the Naturalization Act made any “free white” who was born in the United States a citizen.

    It is a mistake to assume that a Constitutional clause, no matter how airtight, covers situations that where wholly outside the ken of the crafters. In the case of the 14th Amendment, casual intercontinental travel in mere hours was never considered. Had it been, the language that exempted diplomats and some Indian tribes would likely have included transients.

    Same argument as saying “well regulated militia” and “arms” in the 2nd Amendment. Plus, the Indian Citizen’s act of 1924, fixed the Indian loophole. The text exists, it flatly states it’s meaning, and 130 years of rulings confirm it.

    Or maybe not. But the idea of “citizenship tourism” is suspect and ONLY exists through legal inertia.

    I’ll take the 218 years of legal inertia to something called “citizenship tourism” invented in the last 20 years. The 14th Amendment and 218 years tell you that an amendment is going to be required.

    Now, I happen to believe that any child born to an actual immigrant, whatever their status, is a citizen under the 14th Amendment. But an immigrant is different than a tourist. They intend to create a life here, and THAT is why the child is a citizen: This is its country.

    But that’s not how this works, the constitution says it’s about the child, not the parent.

    I don’t know how Congress could write a law that could even try to limit it, other than just doing it and ignoring the Constitution.

    I’ve read a bunch of “stories” by people like Michael Anton, quoting Erler who actively editing the words Sens Trumbull and Howard, he’s not the first, so that the words (14th Amendment) don’t mean what you think they mean, to also misquote Inigo Montoya.

    I have a convoluted workaround to discount the 14th Amendment since it was so difficult to ratify, Congress had to pass the Reconstructure Act, which Congress feared that with the Habeas Corpus Act the SCOTUS could repeal the Reconstruction Act. This allowed Congress to force through the 14th Amendment, and force it through prior to reconstruction, where it did finally get ratified. You could argue the unconstitutional nature of the Reconstruction act, that the imposing of the 14th amendment on the southern states prior to ratification (ignoring that it did get ratified) was unconstitutional in it’s process, so you invalidate the process of the 14th amendment, and force it to go back through Congress today and be re-ratified through the states.

    Of course, that kinda means you need to do the same to all of the Reconstructing Amendments, 13-15, and brings up the whole nasty process of how amendments were ratified, and the fact that there are a few amendments where states “ratified” them, but there’s no actual evidence that it actually happened, I live in Northern KY now and my neighbor was SoS for KY and they used to joke about how much of KY’s records for the first 100 years of the state Congress is just missing, so did they get ratified?

    Colonel Klink (Ret) (6e7a1c)

  104. BTW, I’ve been so livid about T-Rump’s doofusness, I forgot this gem from Steve Stivers on Steve King. King doesn’t just give the Beigepower, low-cal Nazi, wink and a nod, he gives them the full bear hug. I don’t who his opponent is, but how has this guy been elected for 8 terms?

    He’s from Storm Lake, Storm Lake…Stormfront, coincidence?

    C

    ongressman Steve King’s recent comments, actions, and retweets are completely inappropriate. We must stand up against white supremacy and hate in all forms, and I strongly condemn this behavior.

    Now, pull campaign dollars.

    Colonel Klink (Ret) (ab0951)

  105. @Beldar #91: Thank you for this… I agree 100% that we must avoid any ex post facto scenarios in this regard.

    I still think that phrase is ambiguous enough that it leaves the Executive Branch an opportunity to ‘clarify’ what it means, which the courts at times has deferred to the Executive Branch (the Chevron deference I believe?). As such, the new EO would be drawing a line in the sand declaring “from this point forward”, illegal aliens giving birth would not satisfy the and subject to the jurisdiction thereof criterion of it’s original meaning.

    That would still leave open for Congress to legislate exactly how it should be interpreted in the future.

    But, in the end, who are we kidding…this is a trial balloon a week before the midterm to drum up more Trump voters as immigration/wall is the biggest reason why we have Trump today.

    whembly (b9d411)

  106. “He believes”

    This is the kind of thing which get tiresome to address and shows the snark and silliness of the NeverTrump mindset.

    1) You don’t know
    2) Given experience with wacky Judges you know this will be litigated — and Trump does also which is why he is signing it.
    3) This undoubtedly was discussed internally as are all EO and lots of smart folks are pushing this. “He” = “Patriots in DC”
    4) The strategy to push SCOTUS to address this issues is FANTASTIC

    The inability to give the guy credit for doing EXACTLY what is needed for this Nation is normal to see from the Left but very dispiriting of the “Right.”

    Bob the Builder (9af831)

  107. we shall see the contours of the executive order, or has there not been enough egg on ones faith after the immigration pause,

    narciso (d1f714)

  108. But, in the end, who are we kidding…this is a trial balloon a week before the midterm to drum up more Trump voters as immigration/wall is the biggest reason why we have Trump today.

    Trial balloons that can help this Nation be better is a good thing.

    And if that to you is “politics” then I want more Trump “politics.”

    Bob the Builder (9af831)

  109. I think that the ‘original intent’ clause is a highly problematic legal argument, considering that this is what one of the drafters of the amendment, Jacob Howard, had to say:

    “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.

    Beldar’s opinion, while legally sound according to precedent, is, respectfully, financially insane and extremely politically unpopular with respect to the current US population and welfare state, neither of whose norms and issues existed at the time of the amendment’s drafting, and should only be used in idealistic thought experiments and not actual practice.

    “I’ve read a bunch of “stories” by people like Michael Anton, quoting Erler who actively editing the words Sens Trumbull and Howard”

    Use your new retired free time to give us some examples that don’t deeply offend the sensibilities and the pocketbooks of Legacy-Americans and Enthusiast-Americans, Colonel.

    Ajami (5c728e)

  110. “I don’t who his opponent is, but how has this guy been elected for 8 terms?”

    White nationalism is extremely and justifiably unpopular.

    The issues that white nationalists were able to steal from mainstream Republicans who give them short shrift and even shorter enforcement are suppressed but most decidedly not.

    Ajami (197bc6)

  111. alexandria ocasio-cortez says if trump cancels citizenship of mexican babies when we take power we cancel citizenship for all registered republicans and impeach conservative off courts as republicans in senate will be striped of citizenship!

    lany (510c68)

  112. As always, we must consider the funny angle:

    “Ending #BirthrightCitizenship will open a new market of qt latinas desperate to marry NEETs for green cards. Trump has brought about the age of state-issued gf’s”

    Ajami (9b99c6)

  113. @ whembly, who wrote (#105):

    I still think that phrase is ambiguous enough that it leaves the Executive Branch an opportunity to ‘clarify’ what it means, which the courts at times has deferred to the Executive Branch (the Chevron deference I believe?). As such, the new EO would be drawing a line in the sand declaring “from this point forward”, illegal aliens giving birth would not satisfy the and subject to the jurisdiction thereof criterion of it’s original meaning.

    That would still leave open for Congress to legislate exactly how it should be interpreted in the future.

    This isn’t exactly Chevron, but in a broad sense you’re certainly correct that the SCOTUS has recognized that the POTUS has an important role in immigration matters under authority delegated to the POTUS by Congress. In the “Muslim ban” litigation, Trump’s legal position has certainly relied upon very specific statutory powers expressly granted by Congress to the POTUS; the dispute has been about whether the particulars of those various orders were within or outside those delegated powers.

    Thus, in Trump v. Hawaii, Chief Justice Roberts’ 5/4 majority opinion upholding the Administration’s position that, based on authority delegated to the POTUS in 18 U.S.C. § 1182(f) to suspend the entry of aliens into the United States.

    I don’t know offhand, though, of a statute that can similarly be pointed to, or even leveraged into, as support for the proposition that the POTUS acting unilaterally can redefine what the “jurisdiction of the [United States]” is for purposes of the Fourteenth Amendment. And to the contrary, Congress is expressly given power of enforcement by appropriate legislation in the Fourteenth Amendment itself.

    If Trump tries to constrict the meaning of “subject to the jurisdiction of the [United States]” through an executive order, it will indeed, as others have noted above, certainly be challenged in court. I think without some statutory delegation of power to the POTUS comparable to 18 U.S.C. § 1182(f), though, I don’t think such an executive order will stand. Four members of the current SCOTUS would presumably treat the “jurisdiction” as being fixed and immutable, and placed beyond the reach of Congress. But I think the other five members would agree that changes are within the power of Congress, but not within the power of the POTUS; thus, I think Trump would lose the attempt to defend such an EO by a 9/0 ruling, with the four liberal justices “concurring on other grounds.”

    I could be wrong, but that’s my current best guess. Thanks for the very thoughtful & civil conversation!

    Beldar (fa637a)

  114. 1) You don’t know

    Uh, the Naturalization Act of 1790, the Civil Rights Act of 1866, 14th Amendment, the Expatriation Act of 1868, and the Indian Citizenship Act of 1924, exist, they are written in English.

    In 1873 wrote, The Attorney General of the United States published the following legal opinion concerning the Fourteenth Amendment:

    The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them.

    2) Given experience with wacky Judges you know this will be litigated — and Trump does also which is why he is signing it.

    Well, the SCOTUS has ruled on this multiple times. Inglis v. Trustees of Sailor’s Snug Harbor, Elk v. Wilkins, United States v. Wong Kim Ark. They are 100% consistent and also, written in English.

    3) This undoubtedly was discussed internally as are all EO and lots of smart folks are pushing this. “He” = “Patriots in DC”

    Well, Trump, Michael Anton, and Stephen Miller have been spouting it, but there’s no evidence that any of them are “smart”.

    4) The strategy to push SCOTUS to address this issues is FANTASTIC

    Why would the SCOTUS even entertain it? It would get bounced in a district any district, and the SCOTUS would only pick it up if they could agree on writ of certiorari, and I don’t foresee that as possible since this is supposed to be a conservative court, and this is settled law. Even if you could convince 4 to choose to review it, where’s the 5th vote, heck, where’s the 4th vote. I don’t know how you could get the 1st vote, since the 14th Amendment is plainly written, and Article 5 gives Congress the means to change it.

    Colonel Klink (Ret) (68437d)

  115. > The word ‘jurisdiction’ must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent.

    This argument would seem to me to be foreclosed by the 7-2 decision in US v Wong Kim Ark, which argues that the english common law rules for ‘subject to the jurisdiction thereof’ includes basically everyone except diplomatic personnel and occupying aliens from a country we’re at war with. See the quote I posted above.

    aphrael (e0cdc9)

  116. “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.

    Did you think that by bolding the part you liked, you could ignore the rest of the sentence which makes clear he is talking about diplomats and their families?

    Dave (9664fc)

  117. Dave: huh? i’m bolding a part that talks about diplomats and their families. the quote is saying that under english common law, “subject to the jurisdiction thereof” extended to all aliens except (a) diplomats and their families and (b) alien *enemies* engaged in occupation.

    it seems quite clear to me that the logic used in Wong Kim Ark would apply to children born to aliens on tourist visas or to aliens in the country illegally.

    aphrael (e0cdc9)

  118. Shall we quote Senator Reid on this?

    https://www.youtube.com/watch?time_continue=2&v=75a9Wa6KL7k

    jim2 (a5dc71)

  119. aphrael, I was responding to (and quoted) comment #109, not yours

    :)

    Dave (9664fc)

  120. alexandria occasional-cortex will never be in a position to do much of anything in this country beyond the further ruination of her neighborhood schools.

    Colonel Haiku (97d6f1)

  121. “Did you think that by bolding the part you liked, you could ignore the rest of the sentence which makes clear he is talking about diplomats and their families?”

    Yes, and the right to keep and bear arms applies only to the ‘well-regulated militia’.

    Ajami (1047cb)

  122. 101… I would imagine he is not alone among former presidents in that respect. What else ya got, nk?

    Colonel Haiku (97d6f1)

  123. “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.

    You bolded the wrong part, as Howard did not intend to exclude all children of foreigners from citizenship. He merely noted that, under long-standing international custom, the offspring of diplomats abroad do not receive the citizenship of their host country. Howard said, “is simply declaratory of what I regard as the law of the land already”, so what was the law of the land already? Of course, there was English Common Law, with Jus Solis, which was the law of the land. Then there was the Civil Rights Act of 1866, which was the law of the land when the 14th Amendment was written, Howard, and Trumbull should be pretty knowledgeable, they were authors and sponsors of it, as well as the 14th Amendment, which reads…

    That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

    Colonel Klink (Ret) (ffba1f)

  124. I have seen both Dave’s and Klink’s reply, and they are not in any way answering the main thrust of my post: why open-ended birthright citizenship to illegal aliens isn’t a bad interpretation in a fiduciary sense with regard to the current scale of the United States.

    Not ‘somewhat defensible in a legal sense’, not ‘allowed by sympathetic judges who were themselves dependent on lenient interpretations in their own family history and the current needs of the United States as a mostly frontier nation at the time’, but ‘good or bad for the finances and unity of the United States of America. It certainly devalues the citizenship and insults the heritage of people who’ve lived, worked, and sacrificed for the country over their own and their families’ lifetimes.

    Ajami (18535a)

  125. There was also the Naturalization Acts of 1790, 95, and 1802, all of which defined any child born in the United States as a citizen, except explicitly for those of the non-beige, or Indian, persuasion.

    Of course, if you were a “free white”, show up in the US, live here for 3-14-then 5 years, you were eligible for citizenship. Basically, we had no such thing as immigration for white folk, the door was open, that was true until the 1920’s. Unless you were Roma, not sure how you could tell though, my wife’s family is Roma, and Canadian maple syrup heads, and they’re pretty beige.

    Colonel Klink (Ret) (ffba1f)

  126. 98… well, Kevin, Bulger learned yesterday that in West Virginia, a reputation as a badass doesn’t add days to your life. You get a death sentence for it.

    Colonel Haiku (97d6f1)

  127. Sympathetic judges putting their own self-interests, history or situations ahead of the law and the interests of American citizens are unethical and have no place on the bench.

    Colonel Haiku (97d6f1)

  128. “Of course, if you were a “free white”, show up in the US, live here for 3-14-then 5 years, you were eligible for citizenship.”

    Yes, that’s covered under the ‘needs of the frontier’ clause. There ain’t no more frontier in the US, we’re full enough.

    As far as illegal immigrants are concerned:

    “Wong Kim Ark, who was born in San Francisco in 1873, to Chinese parents who were legally domiciled and resident there at the time and not employed by the Chinese government, had been denied re-entry to the United States after a trip abroad, under a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. He challenged the government’s refusal to recognize his citizenship, and the Supreme Court ruled in his favor, holding that the citizenship language in the Fourteenth Amendment encompassed the circumstances of his birth.”

    Let me repeat for the cheap seats: Birthright citizenship for illegal anchor babies is OFFENSIVE, REPUGNANT and UNFAIR to those currently living here(otherwise Trump wouldn’t be pushing against it right now!) Is anyone willing to make a good-faith argument that continuing to allow it under a very loose interpretation of 14th Amendment doctrine is good for the country or the greater legal system?

    Ajami (69150e)

  129. I have seen both Dave’s and Klink’s reply, and they are not in any way answering the main thrust of my post: why open-ended birthright citizenship to illegal aliens isn’t a bad interpretation in a fiduciary sense with regard to the current scale of the United States

    Well, in a fiduciary sense, we should let everyone over 70 die, of course, 65 would be better. That’s not really an option, if you (the general you) want to change the law, because of fiduciary reasons, that’s what Article 5 is for.

    I’m not really worried about ~300,000 (it averages out way less, but in the peak year of 2007, so just use that) American citizen babies a year. We’re barely at replacement population with illegal immigration now, we’re actually below replacement for citizens.

    If people want to come here because here is better than there, so their babies there will have a better future here, even if they have to go back there as babies, but come back here as adults, then I’m OK with it.

    Colonel Klink (Ret) (ffba1f)

  130. Let me repeat for the cheap seats: Birthright citizenship for illegal anchor babies is OFFENSIVE, REPUGNANT and UNFAIR

    And the law.

    Colonel Klink (Ret) (ffba1f)

  131. Canada and the USA are the only developed countries that offer birthright citizenship.

    Colonel Haiku (97d6f1)

  132. It is – by far – the exception and not the rule around the world, even in the developing countries. It’s not offered by any European country.

    Colonel Haiku (97d6f1)

  133. oh my goodness vicious trump-hater mia love’s behind in her race

    her vile hate campaign’s not doing the trick this time

    people are tired of the hate, mia

    they’re just tired of it

    happyfeet (28a91b)

  134. “…subject to the jurisdiction thereof” is key… you don’t owe allegiance to any other country and therefore it would not apply to anyone born to someone who is.

    Colonel Haiku (97d6f1)

  135. when is the FBI *not* being sleazy and criminal Mr. narciso

    it would be easier just to report those anomalies

    happyfeet (28a91b)

  136. This is one of the funniest things about birth tourism. It’s only Trump adjacent but still makes me giggle.

    Colonel Klink (Ret) (ffba1f)

  137. Ajami, while it’s true that the facts of WKA involved someone who was legally domiciled, the *actual reasoning* does not depend on that. It’s basically saying that longstanding principles of english common law, which predated the revolution and were never superceded by anything, attached citizenship at birth to the children of non-enemy, non-diplomatic-corps aliens who were born in the country.

    The dissent *accepts the premise* but attempts to argue that the immigration act of 1795 implicitly overturned english common law citizenship by requiring an oath of allegiance for naturalization.

    aphrael (e0cdc9)

  138. Easily amused…

    Colonel Haiku (97d6f1)

  139. 130. Except it’s not. Everyone who cites the 14th amendment as the justification for birthright citizenship forgets that last little part that reads, “…and subject to the jurisdiction thereof.” Non-citizens are not subject to American jurisdiction.

    Gryph (08c844)

  140. You mean if a non-citizen robs, rapes, murders, pillages, and burns, we cannot arrest him and try him?

    nk (dbc370)

  141. non-citizens are ok it’s the illegals that suck ass

    happyfeet (28a91b)

  142. Andrew McCarthy also points out (link added):

    Again, there are reports that the president may issue such an order. The problem as I see it is twofold. First, the legal landscape is not limited to the 14th Amendment. Congress has enacted a statute, Section 1401 of the immigration and naturalization laws (Title 8, U.S. Code). In pertinent part, it appears merely to codify in statutory law what the 14th Amendment says: included among U.S. citizens is any “person born in the United States, and subject to the jurisdiction thereof.” But that means the issue is not just what jurisdiction was understood to mean in 1868 when the 14th Amendment was adopted, but what it meant in 1952, when the statute defining U.S. citizenship was enacted (it has been amended several times since then).

    Secondly, even assuming the meaning was the same, Congress’s codification of the 14th Amendment — which it did not need to do — is a strong expression of Congress’s intent to exercise its constitutional authority to set the terms of citizenship.

    Specifically, section 1401 includes, as “nationals and citizens of the United States at birth,” “(a) a person born in the United States, and subject to the jurisdiction thereof.” Trump can’t override this statute through an executive order, either, and McCarthy’s certainly right that a future court could decide Congress meant something different in this statute than did the Congress that passed, for ratification by the states, the Fourteenth Amendment. I’m not aware of any statute by which Congress has arguably delegated to the POTUS any power to further define, or re-define, “subject to the jurisdiction [of the United States]” as used in this statute. But I still believe Congress could (and arguably already has, albeit opaquely, through 8 U.S.C. § 1401(a), as originally passed and since amended).

    I have no idea what a proposed executive order might claim as its authority for the POTUS to end birthright citizenship unilaterally, though. That sounds to me like Stephen Miller craziness, not like an actual legal opinion that’s defensible anywhere except Breitbart.com.

    Beldar (fa637a)

  143. unless you want head lice the best thing to do is get rid of birthright citizenship

    happyfeet (28a91b)

  144. Every day they get on teh bus (too much, Magic Bus)
    That magico thing that brings ‘em to us (too much, Magic Bus)
    They’re not nervous, they just sit and smile (too much, Magic Bus)
    Our country’s only a thousand miles (too much, Magic Bus)
    Thanks, 0bama, for bringin’ ‘em here (too much, Magic Bus)
    Your rotten legacy, have no fear (too much, Magic Bus)
    It just makes me want to cuss (too much, Magic Bus)
    When they ride that Magic Bus(too much, Magic Bus)

    https://www.redstate.com/brandon_morse/2018/10/30/report-mexico-providing-professional-charter-buses-migrant-caravan/

    Colonel Haiku (97d6f1)

  145. The orange-skinned pansy knows that he has alienated alt.cockroach by denouncing Florida Man and the Pittsburgh punk, so hes’ throwing them this bone(r). And they’re sucking it.

    nk (dbc370)

  146. hes’ he’s

    nk (dbc370)

  147. Except it’s not. Everyone who cites the 14th amendment as the justification for birthright citizenship forgets that last little part that reads, “…and subject to the jurisdiction thereof.” Non-citizens are not subject to American jurisdiction.

    Uhh, no, that is quite explicitly defined…I can’t anymore, just read above, the words don’t mean what you think they mean. No more than “well regulated” or “militia” mean different things. English common law is the basis for American law. “…and subject to the jurisdiction thereof.” is, was, and will be, well understood. This isn’t complicated, those words were written in English 152 years ago, it’s the utmost hubris that people are, just now, figuring out reasons to rewrite history.

    That’s the exact opposite of conservative, in fact, it is exactly the argument that Bloomberg makes on gun control.

    Colonel Klink (Ret) (ffba1f)

  148. Gryph, at 140: except that as the phrase was understood traditionally, at common law, non-citizens *were* subject to jurisdiction of the crown, and nothing in US law prior to the adoption of the 14th amendment contravened the underlying common law rule.

    That’s *entirely* the point the majority made in US v Wong Kim Ark.

    aphrael (e0cdc9)

  149. To anyone for whom it may matter: I don’t trust DJT a whit. The only motivation I ever am comfortable ascribing to him is self-interest.

    Yet, just as when a total scoundrel whom I abhor scores a TD or hits a home run for a beloved team, I am thrilled for the action.

    We simply must pull back significantly from the supposed legal protections/refuge so many claim. DJT is forcing the issue like no other in my lifetime. This is an ontological GOOD.

    McCarthy is a weasel, like all GOPe elites. Yet, if he were to become Speaker, I am somewhat hopeful he will accept a tightening of the statutes/regulations. He’ll never agree to a full wall, though. If the Dems take the House, the one remaining gambit is one the donkeys would well recognize – judicial relief in the face of impossible legislative goals. That pretty much has to come with POTUS as the catalyst. If the courts summarily shoot him down? An awesome and consistent re-election issue.

    Ed from SFV (6d42fa)

  150. There is a constitutional way to eliminate anchor babies. No, not Obama’s way with a drone and a Hellfire missile, what are you thinking? By allowing relative visas (a/k/a chain migration) only to the spouse and minor children of a U.S. citizen (maybe permanent resident too). Baby no longer an anchor for mommy, daddy, siblings, grandparents, and a 100 more relatives.

    nk (dbc370)

  151. “the children of non-enemy, non-diplomatic-corps aliens who were born in the country.”

    So under this reasoning Russian spies could anchor-baby all they want to and gain full citizenship?

    “I’m not really worried about ~300,000 (it averages out way less, but in the peak year of 2007, so just use that) American citizen babies a year. We’re barely at replacement population with illegal immigration now, we’re actually below replacement for citizens.”

    Yes, you’re below replacement for citizens (and far above replacement for disinterested slaves and helots given to treating civic institutions like renters treat rentals) because you’re not training or respecting the rights and privileges of the citizens you do have.

    If you think that ‘more people, I don’t care from where or how!’ is the answer, may you retire to a hospital staffed by people who exemplify the finest traditions of the Third World mindset and run by doctors who practice the finest traditions of anarcho-capitalism.

    Ajami (50c50c)

  152. >So under this reasoning Russian spies could anchor-baby all they want to and gain full citizenship?

    under the traditional common law of citizenship, which i think the fourteenth amendment wrote into the constitution (and which the supreme court more or less said the fourteenth amendment wrote into the constitution), yes.

    aphrael (e0cdc9)

  153. @ nk (#152): That was Dr. Krauthammer’s take: Solve the border/overstayed visa problem, and you’ll solve the birthright citizenship problem (or reduce it to the point of triviality). And Congress, which created chain migration, clearly has the power to end that.

    Beldar (fa637a)

  154. There is a constitutional way to eliminate anchor babies. No, not Obama’s way with a drone and a Hellfire missile, what are you thinking? By allowing relative visas (a/k/a chain migration) only to the spouse and minor children of a U.S. citizen (maybe permanent resident too). Baby no longer an anchor for mommy, daddy, siblings, grandparents, and a 100 more relatives.

    How would this address children of illegals? I agree that there should be some limits to chain migration, or at least more scrutiny, those are congressional, and potentially executive branch problems. Birthright citizenship is a constitutional problem, there’s a constitutional remedy, Congress passes a resolution which is then ratified by a supermajority of states.

    Colonel Klink (Ret) (ab0951)

  155. Here is the proclamation at issue in Trump v. Hawaii, linked above — the last version of Trump’s enhanced vetting executive order. Note the operative language:

    NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following: ….

    So what’s the preamble to this proposed executive order going to read? What statute is he going to cite, through which Congress delegated authority to him to adjust who is and isn’t “subject to the jurisdiction [of the United States]” for purposes of legal citizenship, whether under the Fourteenth Amendment or 8 U.S.C. § 1401(a)? Or where is that in Article II?

    Without such authority, this would be as illegal — and as outrageous, as a deliberate violation of his oath to preserve, protect & defend — as anything Obama ever did in his most outrageous executive orders.

    That’s why I say: I literally don’t know how you could write this up, if you were a WH lawyer trying to draft an executive order to make good Trump’s promise/boast.

    Beldar (fa637a)

  156. I have seen both Dave’s and Klink’s reply, and they are not in any way answering the main thrust of my post: why open-ended birthright citizenship to illegal aliens isn’t a bad interpretation in a fiduciary sense with regard to the current scale of the United States.

    So you’re saying the Constitution, and the fundamental rights it guarantees, should constantly be re-evaluated and re-interpreted in the ever-changing light of present circumstances and opinion?

    Hmm. That’s a very interesting idea. So the Constitution would become sort of a “living” document. A “living Constitution” (to coin a phrase).

    You know, that’s damn catchy. I think you should run with it.

    Dave (9664fc)

  157. Herr Oberst, it would eliminate the profit motive. Mama and papa will not have the expectation that the anchor baby would be a ticket to a green card for them and all their relatives.

    nk (dbc370)

  158. Question for Beldar – looking through the text of the INA, I don’t see any definition of what “subject to the jurisdiction thereof”. There’s plenty of legalese about jurisdiction in terms of what parts of the federal court system hold jurisdiction for judicial review of removal orders. I used to be an immigration officer and it appears throughout the law books that the standard definition of jurisdiction is the 14th Amendment and the Wong Ark cases. Any new case law that definitively cites jurisdiction as the one assumed by the legal establishment? My belief is absent any definitive case law that says otherwise, “subject to the jurisdiction thereof” applies to people who have legally entered the US, have a green card and are in a valid non-immigrant status. If there is new case law that I’m not aware of, then I would say your interpretation of only Congress having the statutory power of changing birthright citizenship. But I don’t think it requires a constitutional amendment.

    Cygnusanalogman (9e0e0f)

  159. From whence does Congress get the power to define terms in the Constitution?

    If Congress can redefine ‘subject to the jurisdiction thereof’ by statute, what other Constitutional phrases can it redefine by statute, and where and how is that list determined and delineated?

    aphrael (e0cdc9)

  160. So under this reasoning Russian spies could anchor-baby all they want to and gain full citizenship?

    Yes, you’re below replacement for citizens (and far above replacement for disinterested slaves and helots given to treating civic institutions like renters treat rentals) because you’re not training or respecting the rights and privileges of the citizens you do have.

    If you think that ‘more people, I don’t care from where or how!’ is the answer, may you retire to a hospital staffed by people who exemplify the finest traditions of the Third World mindset and run by doctors who practice the finest traditions of anarcho-capitalism

    We wouldn’t blame the kids of Russian spies, in fact, this exact scenario has happened before, and the kids do get to keep their citizenship. That’s why we have a Constitution.

    I never said I don’t care where they come from, illegal immigration, really any immigration, needs to be managed, but “Anchor Babies” isn’t really a problem, it’s a meme. But I appreciate you telling me how I should feel.

    Yes, We’re below replacement level, we’re not even at replacement level with illegal immigration.

    I don’t know how your country works, but I’m kind of familiar with mine, it’s been pretty good here for the last couple hundred years, and I’m OK with our way of doing things, warts and all.

    Colonel Klink (Ret) (ab0951)

  161. In this instance, Section 5, the enabling clause, of the Fourteenth Amendment. I would even go further and say, Marbury v. Madison notwithstanding, the interpretation of Congress of Amendments with enabling clauses is superior to the interpretation of the Supreme Court.

    nk (dbc370)

  162. And then President Trump ended birthright citizenship and everyone was happy the end

    happyfeet (28a91b)

  163. Herr Oberst, it would eliminate the profit motive. Mama and papa will not have the expectation that the anchor baby would be a ticket to a green card for them and all their relatives.

    Ah, I get it. Your (hypothetical your)kid born here is a citizen, but take them and go home, once they reach x_age they can return, or you can leave them, but you don’t get to stay until they reach the age of majority. Canada does something like that too, although to be honest, they’ve allowed pretty flimsy reasons for refugee status, and aren’t as strict as us on deportation.

    Colonel Klink (Ret) (ab0951)

  164. And when I’m elected to Congress, I will introduce an amendment to the Judiciary Act that says so.

    Of course, it will not pass. The lazy, cowardly Congresscritters, concerned only with keeping their phony-baloney jobs, are more than happy to let the Supreme Court wrestle with Constitutional questions, and would cry like little girls if they ever had to.

    nk (dbc370)

  165. You mean if a non-citizen robs, rapes, murders, pillages, and burns, we cannot arrest him and try him?

    nk (dbc370) — 10/30/2018 @ 5:50 pm

    You have the right to do what is appropriate to your custom
    We have the right to do what is appropriate to ours.

    NJRob (548805)

  166. @ Colonel Klink – anchor babies is the magnet for illegal immigration/visa overstays. Dreamers are a mere symptom of the underlying issue. It has gotten worse since the Flores Decree. Even the Obama Admin in 2015 argued that requiring catch and release for family units would exacerbate the problem and entice more illegal immigration. They know they can show up at the border, claim asylum/credible fear and disappear into the woodwork. They migrate to certain cities and states with strong sanctuary reputations and they are well versed as to when federal government policy changes with regards to immigration and how to exploit it.

    When I started with ICE in 2010, I worked for a enforcement unit in Vermont. It was routine to put immigration detainers on folks, illegals and overstays, who got pulled over for a traffic violation and then get arrested for driving without a license. By the time I left in 2013, that had radically changed due to sanctuary city policies and Obama Admin policy. ICE has a saying; It ain’t over till the alien wins.

    Cygnusanalogman (9e0e0f)

  167. but you don’t get to stay until they reach the age of majority.

    You don’t get to stay even when they reach the age of majority. The only relatives they will be able to sponsor are their spouses and minor children.

    nk (dbc370)

  168. You don’t get to stay even when they reach the age of majority. The only relatives they will be able to sponsor are their spouses and minor children.

    I’m fine with that, it might impact immigration a bit, but as long as countries, where you can walk here from, are veritable war zones, then there’s always going to be a problem, wall or no wall.

    If I lived in Guatemala, I’d be hoofing it north.

    Colonel Klink (Ret) (ab0951)

  169. @ NK – There are several loopholes in the system. One is if you have some sort of Temporary Protected Status (given to several latin american countries, Sudan, Syria, etc) and you have an immediate relative (defined as a spouse or child over the age of 21) who is a citizen or lpr, you can travel back to your home country with US travel authorization and come back and make a legal entry because of court decisions, both at the BIA and 9th Circus.

    Cygnusanalogman (9e0e0f)

  170. I believe that was what the Republicans were trying to negotiate last year in exchange for DACA/DREAM, but it went nowhere.

    nk (dbc370)

  171. #157 Beldar, I am sure there are legal minds much more versed in getting this done than you.

    In fact, it was likely one of those Lawyers who pitched the idea in the first place.

    And in a battle between Pinochet and Stalin, give me Pinochet every time. At least his instincts are better on the “do good vector”

    Bob the Builder (9af831)

  172. @ Colonel Clink @ 170 – True, but I think the United States has an obligation to its citizens to kindly tell the new arrivals to sod off and to tell their respective governments to clean up their act and start governing. I doubt that will happen as a lot of Latin American countries, including Mexico, depend on remittances from the US. I would start with taxing that through the SWIFT system and conditioning foreign aid on progress of these countries in fighting crime, corruption and improved governance.

    Cygnusanalogman (9e0e0f)

  173. The prime suspect in the killing of Whitey Bulger seems to be a Greek. A Maniote (Spartan) at that, judging from his name, Fotios “Freddy” Geas. According to a lawyer he once worked for, he hated “rats” and men who abuse women, and Bulger was both.

    nk (dbc370)

  174. #147 I like how folks like NK hate the very Americans who gave him this glorious time in our Republic. Deplorables, whatsoever should we do with them?

    As granny always said, Ingratitude is the greatest sin.

    Bob the Builder (9af831)

  175. Deplorables, whatsoever should we do with them?

    Lock them up!

    nk (dbc370)

  176. For examples in which the Constitution gives Congress the express power to dictate “jurisdiction” on a forward-going basis, consider Article III:

    Section one provides for the judicial power of the United States to be vested in a Supreme Court “and in such inferior Courts as the Congress may from time to time ordain and establish.” Section two, clause one, creates the general subject-matter jurisdiction of the federal judiciary (arising under, diversity, admiralty, U.S. a party, etc.). Section two, clause two, then establishes the SCOTUS’ extremely limited “original jurisdiction” as being limited to “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” And then — most specifically, for purposes of our present discussion — Section two, clause two, says, “In all the other Cases before mentioned [i.e., those for which clause one creates subject-matter jurisdiction], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

    The Congress exercised that power in the Judiciary Act of 1789, and in its subsequent amendments, which created the subordinate federal courts to begin with, and which has at various times expanded and contracted the federal courts’ subject-matter jurisdiction (e.g., bumping the amount-in-controversy threshold in 1887, and again in 1911, 1958, 1988, and 1996). The Congress has also created new subordinate federal courts, including specialized courts. It’s created new judgeships, including magistrate judges who aren’t even “Article III” judges. So Congress regularly changes, through ordinary legislation, the “jurisdiction” of the federal courts pursuant to the grant of Congressional authority in Article III, section two, clause two.

    Congress has likewise expanded the territorial jurisdiction of the United States — including but not limited to the operation of the federal judiciary therein, wherein the Constitution and Congress’ laws are enforced — through legislation admitting new states and territories to the Union.

    I don’t claim that Congress has a broad and general power to redefine terms defined by the Constitution. But specifically with respect to the terms “jurisdiction” and “jurisdiction of the United States,” there’s clear and longstanding examples of Congress being able to make adjustments by statute, when its otherwise acting within its plenary, enumerated powers, of which naturalization is one, and in which immigration and citizenship laws more generally have been held to be constitutional.

    I therefore don’t believe that “jurisdiction of the United States” is a term with fixed meaning under the Constitution. To the contrary, it was always expected and intended to vary over time based on actions of the Congress in either enlarging or contracting it. The enforcement clause of the Fourteenth Amendment reflected and carried forward that power.

    Or so would hold Justice Beldar, if anyone ever put a robe on him, despite his fondness for adult beverages and his one unsuccessful attempt to arrange a consensual ménage à trois while in high school.

    Beldar (dc9b91)

  177. Correction: That sentence in #178 ought have read: “So Congress regularly changes, through ordinary legislation, the “jurisdiction” of the federal courts pursuant to the grant of Congressional authority in Article III, section one, and section two, clause two.”

    Beldar (dc9b91)

  178. “From whence does Congress get the power to define terms in the Constitution?”
    aphrael (e0cdc9) — 10/30/2018 @ 7:06 pm

    Ever since Article 1, Section 8 was defined into inconsequence, oh, about a century ago. Are you wanting a do over on all that?

    Munroe (61e3f0)

  179. Thanks for the drive-by insult, Bob the Builder (#173). When you find one of those better minds who’s actually drafted this executive order, get back to us all, okay?

    Beldar (dc9b91)

  180. Breaking News, NeverTrumpinellas!!!!!!!!!!

    https://twitter.com/Fuctupmind/status/1056971162566250496

    Colonel Haiku (2601c0)

  181. #181 Beldar, I believe in professionals. So when professionals in the White House seemingly claim to be able to do something I tend to listen. You should take a pause and consider that. Simply doing Orangeman bad and stupid is an insult to the many bright and hard working on his team who actually care about this Nation.

    Bob the Builder (9af831)

  182. I don’t claim that Congress has a broad and general power to redefine terms defined by the Constitution. But specifically with respect to the terms “jurisdiction” and “jurisdiction of the United States,” there’s clear and longstanding examples of Congress being able to make adjustments by statute, when its otherwise acting within its plenary, enumerated powers, of which naturalization is one, and in which immigration and citizenship laws more generally have been held to be constitutional.

    How about this for a Trumpian fast one:

    By executive order, grant automatic diplomatic immunity (as an emissary of her country of citizenship) to every pregnant woman in the United States without legal status for exactly one minute before and after she completes delivery.

    That puts her outside the jurisdiction of the United States at the critical moment, and leaves her hapless child high and dry, citizenship-wise.

    Dave (9664fc)

  183. The one seemingly illogical thing of NeverTrump is this belief that not only Trump is a raging moron but that this seeming raging moron literally makes the entire bureaucracy morons too all the while actually improving our lives and the prospects of this Nation.

    Really is something.

    So stupid.

    So corrupting of everyone.

    Yet progress in spite of seditious activity by large parts of the bureaucracy, our media, many in the legal profession, academia, the DOJ, FBI, ……..

    That is one amazing orange moron.

    Can only imagine how much better it would be if the egos of the Beltway would actually work with him to move the Agenda along.

    Bob the Builder (9af831)

  184. It is it wrong to think “I don’t care about the childwins?”

    Kind of tired about illegals chillllrun and all the BS about them.

    Don’t care. They will be fine back in El Salvador.

    Bob the Builder (9af831)

  185. I believe in professionals. So when professionals in the White House seemingly claim to be able to do something I tend to listen. You should take a pause and consider that. Simply doing Orangeman bad and stupid is an insult to the many bright and hard working on his team who actually care about this Nation.

    I see your problem, right there.

    Colonel Klink (Ret) (53dc67)

  186. Simply doing Orangeman bad and stupid is an insult to the many bright and hard working on his team who actually care about this Nation.

    … and especially the ones who haven’t pled guilty yet.

    Dave (9664fc)

  187. Puhleeze…

    Colonel Haiku (2601c0)

  188. “I never said I don’t care where they come from, illegal immigration, really any immigration, needs to be managed, but “Anchor Babies” isn’t really a problem, it’s a meme.”

    That’s the type of thing you’d only believe if you read only newspapers. ‘Anchor babies’, birth tourism, and immigrant hubs turning ‘little China’ or ‘little Havana’ or ‘little Mexico’ with all the foreign meddling and sympathies that it implies have been happening for a long time, tolerated as curiosities previously but absolutely not tolerated as the general rule.

    Brazil lived it. Brazil has now elected an unapologetically right-wing military government.

    “But I appreciate you telling me how I should feel.”

    I was just trying to see if your analysis of the situation went beyond meme status.

    “Yes, We’re below replacement level, we’re not even at replacement level with illegal immigration.”

    So why not replace yourselves naturally, with children from among the current population? Are you unwilling or unable to pay them enough to have their own children, and have to import desperate people from overseas who’ll accept lower wages at a currency not currently as devalued as back home?

    “I don’t know how your country works, but I’m kind of familiar with mine, it’s been pretty good here for the last couple hundred years, and I’m OK with our way of doing things, warts and all.”

    It’s my country too, this plays out in Texas as it does California and Minnesota, and once the government debt bomb that you’re totally sure is coming hits your happy-clappy view of the situation is going to be tested quite sorely, and America may make Brazil look like Sweden in its response.

    Ajami (4bc980)

  189. Teehee, Kellyanne Conway’s husband had a nice little write up on this brainwave.

    Colonel Klink (Ret) (53dc67)

  190. I like this lady, she’s a scrapper…

    “The calls for him to cool his overheated rhetoric” are what I’ve been calling “civility bullsh*t” for years. It’s always only aimed at the other side. They want you to stop fighting them with vigor, and they have no intention of stopping fighting you. Trump obviously know this and can’t be played. You might think just this once — because 11 people were massacred — he’d go presidential, bow his head, and sing “Amazing Grace,” but his opponents didn’t refrain from closing right in on him and kicking him, and he kicks back.”

    https://althouse.blogspot.com/2018/10/blame-trump-and-trump-blames-you.html

    Colonel Haiku (2601c0)

  191. That’s the type of thing you’d only believe if you read only newspapers. ‘Anchor babies’, birth tourism, and immigrant hubs turning ‘little China’ or ‘little Havana’ or ‘little Mexico’ with all the foreign meddling and sympathies that it implies have been happening for a long time, tolerated as curiosities previously but absolutely not tolerated as the general rule.

    Awesome, where are these “China towns”? I’ve never heard of them, they must be very new. Is there a “Little Italy” or a “Greek town”?

    Colonel Klink (Ret) (53dc67)

  192. Cries of “have you no decency” coming from the likes of the Democrats and their media lap poodles are a scream…

    Colonel Haiku (2601c0)

  193. Col Klink —

    The 2nd Amendment has been ruled as not covering machine guns or RPGs. The argument is not that these are guns that didn’t exist in 1790, but that these are weapons on the other side of a singularity from 1790.

    Similarly jet travel leads to situations that could not be foreseen in 1865. You don’t have to be a “Living Constitution” radical to suggest that when Originalism is irrelevant to a question that Congress has power to clarify things. Especially when the 14th Amendment suggests that Congress HAS that power.

    Note: I say Congress. I don’t think the President can issue an Executive Order that has significant effect outside the bureaucracy — an issue I had with Obama — but even if he can, the next President can belay it just as easily. One of the reasons for the structure of the Congress is that making law has a hysteresis to it. It almost always takes more than a mere majority, given the way coalitions work. Executive Orders are mere tissue paper.

    Kevin M (a57144)

  194. Of course, if you were a “free white”, show up in the US, live here for 3-14-then 5 years, you were eligible for citizenship. Basically, we had no such thing as immigration for white folk, the door was open, that was true until the 1920’s.

    This was mere practicality. In truth, you could come here from England in 1830, move to Ohio and claim citizenship. Who could prove otherwise? There were no IDs. You could change your name after each move, and again, who’s to know? Pretty sure that my Irish ancestors didn’t have much contact with the federal government, except when they voted, more or less anonymously

    Somewhere around 1920 the bureaucracy started having ways to track, and the need to do so: cheap photography; police; telephones; radio. And they invented more shortly thereafter to weld you into their system: driver’s licenses; Social Security; the income tax.

    At that point, they could pass laws about immigration and naturalization that weren’t empty threats. So they did.

    Kevin M (a57144)

  195. Tucker Carlson had an expert who was rather convincing that the routine granting of citizenship to persons born on USA soil was an administrative (Executive) prerogative. To whatever extent this is true, an EO can vitiate such.

    The legislative history he cited is rather compelling in that it was decidedly NOT meant to apply to any person other than slaves. I want to see the Dems explain how legislative history does not apply. :)

    If nothing else, DJT is planting mustard seeds. This is progress.

    Ed from SFV (6d42fa)

  196. That puts her outside the jurisdiction of the United States at the critical moment, and leaves her hapless child high and dry, citizenship-wise.

    I am certain that diplomatic status requires the represented country to agree, usually in the form of credentials.

    Kevin M (a57144)

  197. the routine granting of citizenship to persons born on USA soil was an administrative (Executive) prerogative

    Well, hell, let’s not waste this power on mere illegals. Revoke the citizenship of all registered Democrats!

    Kevin M (a57144)

  198. Haiku–

    The whole thing with Trump going/not going to Pittsburgh is such incredible BS.

    1) He goes. How insensitive can he BE, what with all the hurt and grieving, to show his face where “he’s not wanted”!

    2) He doesn’t go. How insensitive can he BE, what with all the hurt and grieving, to snub the community when all he needed to do was come and say a few words!

    Kevin M (a57144)

  199. It’s likely to be poison for a dozen or more GOP congressional districts that are teetering in the balance

    Yes. AZ2, for example, not to mention the Senate race there.

    Kevin M (a57144)

  200. “Awesome, where are these “China towns”? I’ve never heard of them, they must be very new. Is there a “Little Italy” or a “Greek town”?”

    Right along with Dearbornistan and Little Somaliland on The Prairie (complete with female circumcision!)

    Ajami (2e89fd)

  201. Except it’s not. Everyone who cites the 14th amendment as the justification for birthright citizenship forgets that last little part that reads, “…and subject to the jurisdiction thereof.” Non-citizens are not subject to American jurisdiction.

    Now this is stupid, but in a useful way.

    LEGAL RESIDENT non-citizens are clearly subject to US jurisdiction. They pay taxes. They can be drafted (as much as anyone can be drafted). They are expected to obey all laws and generally do. There is no doubt that their offspring are citizens — that was part of the deal when they were permitted entry.

    OTHER-THAN-LEGAL RESIDENT non-citizens attempt to hide as best they can from US jurisdiction. They pay only those taxes they cannot avoid (e.g. sales taxes). They are not registered for the draft. They do NOT obey some laws, particularly immigration laws, and obey others only to avoid being noticed. That some states conspire to prevent US jurisdiction from being applied does not help them here. It’s not a sure thing that courts will find such scofflaws to qualify under the jurisdiction clause.

    That isn’t to say that an EO will fill the bill. To change things you have to overcome precedent and practice, and legislation would seem to be a minimum.

    Kevin M (a57144)

  202. @ Bob the Builder: If it pleases you to ignore my own law license and credentials, such is your privilege. Like I say, when your (and Trump’s) fantasies actually appear on paper, even as a draft, get back to us.

    Beldar (fa637a)

  203. We’re fortunate to be commenting on the blog of a lawyer, whose regular commenters include many other lawyers, some of whom have already weighed in.

    Bob the Builder insists (#183) that “professionals in the White House seemingly claim to be able to” craft an executive order ending birthright citizenship, and indeed, that Trump has “legal minds much more versed in getting this done than [me].” Perhaps so; it wouldn’t be the first time I’ve been wrong.

    But perhaps some of you who are indeed also memebers of the same profession as Patterico, me, Don McGahn, and Pat Cipollone, which is to say, fellow lawyers, can help me out. Bob the Builder insists that he “respects professionals” (presumably except for me), so maybe he respects one or more of you, and maybe one of you can answer the question I posed above in #157:

    What statute, or what provision of the Constitution, could such an executive order cite as its underlying authorization, in the same manner as the Enhanced Vetting executive order I quoted and linked above?

    Beldar (fa637a)

  204. Oh — Bob the Builder, I didn’t mean to exclude you from that question (#205)! By all means, if you can point to a statute or provision of the Constitution, pitch right in.

    Ditto any other non-lawyers; the question is open to anyone, even though I’m asking other lawyers in particular to weigh in, since Bob the Builder “respects professionals.”

    Beldar (fa637a)

  205. IANAL* but the sheer number of missed opportunities (and rotting low-hanging fruit) with this White House indicates a certain lack of on-feet thinking. Patterico’s practice is fairly narrow, but I’ve not seen Beldar say anything noticeably stupid regarding the law.

    Kevin M (a57144)

  206. *I did take a lot or pre-law in college, have a grasp of civics, and can read and understand appellate cases. But actual law never interested me much.

    Kevin M (a57144)

  207. *or of

    Kevin M (a57144)

  208. Beldar–

    An EO that denied birthright citizenship to non-citizen offspring who are taken from the country shortly after birth might fly, as having less connection to the US than a diplomat’s child does. Thereby removing an unintended abuse of the system.

    Kevin M (a57144)

  209. We must stop the caravan especially women with children desperately trying to come here to clean our portapotties! our uncleaned portapotties must be protected from them!

    lany (539f06)

  210. Either we have a border, or we don’t. Everything else is misdirection.

    Kevin M (a57144)

  211. Further to happyfeet’s #22 & #36, and to my #33 & #35: From the publisher of HatewayNumbTwit.com GatewayPundit.com:

    Earlier today we were given information on accusations against former FBI Director Robert Mueller.We took the documents down and we are currently investigating these accusations.There are also very serious allegations against Jacob Wohl.We are also looking into this.— Jim Hoft (@gatewaypundit) October 30, 2018

    So who’s the hoaxer?

    Beldar (fa637a)

  212. @ Kevin M (#210): And the proclamation references what statute or provision of the Constitution?

    In other words: What part of the Constitution and laws of the United States is the Executive executing in this executive order we’re hypothesizing that somehow does away with birthright citizenship?

    Beldar (fa637a)

  213. Beldar–

    The reference is to the “subject to the jurisdiction thereof” part of the 14th Amendment and the argument made at the time regarding transient diplomats. At the time there were few other transients; now there are.

    Passing tourists have very limited interaction with US jurisdiction. They are not subject to most taxation, for example. It was also wholly unanticipated (in 1865) that one could come to the US for a few days then leave. An originalist analysis of a post-singularity situation (e.g. air travel) isn’t convincing; here judges must do some work. The abuse is obvious and the need to preserve the loophole for other reasons is nil.

    Closing the “citizenship tourism” loophole has little to do with the “anchor baby” thing, except as potential.

    Kevin M (a57144)

  214. I start by assuming anything Jim Hoft says is false. I’m rarely wrong.

    Kevin M (a57144)

  215. Ok, we have a border.

    Now what? Do we let people across it, or not?

    Leviticus (1e8028)

  216. Bob Mueller, fbi rapist

    you made your own bed bob

    don’t look for any sympathy from me

    happyfeet (28a91b)

  217. Now what? Do we let people across it, or not?

    red rover red rover let head lice come over

    happyfeet (28a91b)

  218. So it was one of Jim Hoft’s twinks, eh? At least this one is the right age, unlike Lucian and Milo. I wonder, did Avenatti pay him to do it, in order to distract from him?

    nk (dbc370)

  219. Ah yes krassensteins Biden dog body and grishenko snipe hunter.

    Narciso (d1f714)

  220. Beldar – is it possible the Admin could argue that its interpretation of jurisdiction is no more different than Congress saying only certain types of federal circuit courts can hear certain types of cases and limiting the appeals to those courts? You have the legislative history of the 14th Amendment drafters saying their interpretation of jurisdiction was meant to exclude those who had allegiance to another country.

    I would argue that we have one type of jurisdiction over illegals and their children; that of being able to prosecute them for any civil/criminal violations and extending them the same Constitutional protections relating to that process. Think of it this way: You go on vacation to France. You commit some type of crime in France. You have the same rights as any other native born criminal defendant and you also have consular access as a US citizen. But, you don’t have the right to stay there indefinitely without applying through the proper process to acquire permanent residency in France. Therefore, I would argue, an illegal and their child born here have no allegiance to the US and are not subject to our jurisdiction. Wong Ark said those with legal residency and who have children here, those children are US citizens. If a legal permanent resident becomes a US citizen and that child that they brought with them through the same process is under a certain age, they automatically become citizens as well.

    CygnusAnalogMan (9c66ec)

  221. Dan McLaughlin is one of the smarter lawyers at NR, smarter than McCarthy.

    Paul Montagu (7b9e3b)

  222. I get Lucian wintrich confused with this century’s version of Ted Mcginley, Clark Duke.

    urbanleftbehind (49b0be)

  223. I believe the government’s case in Wong Kim Ark hinged on the Anti-Chinese Acts which denied legal residency to his parents. Same argument as now being made — if your parents are not legal residents, your birth does not grant you citizenship. The Supreme Court did not agree.

    nk (dbc370)

  224. The best argument against an EO — even if it could pass legal muster — is that it is ephemeral. The next president can cancel it with the stroke of a pen. If Trump actually wants to do this, he’d be better advised to get Congress to pass it. Not only would it have permanence, but Congress is mentioned in the 14th Amendment. EOs are not.

    Kevin M (a57144)

  225. Except that in this case, they were legally admitted only fraudulently so.

    Narciso (d1f714)

  226. OT, but perhaps grist for our legal Pontificators:

    Has Mueller Subpoenaed the President?

    Based on careful analysis of some unusual docket entries, Politico thinks Mueller and Trump may have been locked in a below-the-radar legal battle over a grand jury subpeoena for the last ten weeks.

    Captain Ed over at HotAir also picked this up.

    That Trump could stay quiet about it seems like the most implausible aspect to me…

    Dave (9664fc)

  227. What is the point of having a Conservative SCOTUS if our Executive Branch does not float up as many trial balloons to over turn / decide legal ambiguity in our favor.

    NeverTrump is like a porn star dude who not only can’t get i up but refuses to under “pwincipulls.” They have all the privilege in the world but can seem to pull the cord and get er done.

    Bob the Builder (9af831)

  228. What is the point of having a Conservative SCOTUS if our Executive Branch does not float up as many trial balloons to over turn / decide legal ambiguity in our favor.

    You may have misunderstood what “a Conservative SCOTUS” means.

    Hint: “conservative” is the opposite of “activist”.

    Dave (9664fc)

  229. If anybody knows about pron star dudes, it would be Trumpkins.

    nk (dbc370)

  230. Conservatives best chance for survival is exposing and disposing the Boooosh league fake conservatives

    mg (536c95)

  231. Well regardless, if you want this solved legislatively, this is a primer on how to get it done and to think the son might now become the swing 218th vote or the leader of a swing bloc.

    urbanleftbehind (5eecdb)

  232. Let’s review, last time there was a narrow executive order built on precedents, and what was the reaction here, because narrative was followed over the facts

    Narciso (d1f714)

  233. Baby Brown Boooosh, as mg may call him, might get booted out (the Dem silver lining) or lag way behind in victory margin.

    urbanleftbehind (5eecdb)

  234. The question is: is Trump doing this just for the campaign, or is he serious? People are undecided.

    Sammy Finkelman (102c75)

  235. Trump never does anything he promises, so it’s just a Pavlovian stimulus/response thing to make his cultists salivate.

    Dave (9664fc)

  236. I love seeing the fakers pontificate Trump hate.

    mg (9e54f8)

  237. 229 – insults and baby talk for your opponents. Impressive Trump tactics.

    DRJ (15874d)

  238. President Hickenlooper

    yeah that’s a thing

    happyfeet (28a91b)

  239. That’s like the original fantastic four film.

    Narciso (d1f714)

  240. In any case, as the Wall Street Journal says:

    https://www.wsj.com/articles/rewriting-the-fourteenth-amendment-1540939660

    President Trump really, really wants to make the midterm election about immigration…he wanted the political issue, and we’ll soon see how well that worked.

    Trump wants to lose on the issue (not get what he says he wants; and have the Democrats not have the intellectual ability or courage to defend their position on the merits (not just the law, or with insults ir half truths)

    He thinks he has got the Dems trapped.

    Sammy Finkelman (102c75)

  241. No, its best to look at Montana – Tester if he makes it, Bullock even Schweitzer. Hell, bring back pervy Eric Greitens to the D fold – notice how Trump did not much for him at all, methinks he was letting a potential primary challenger drown.

    urbanleftbehind (5eecdb)

  242. Well it was an initial sham charge, like the Turkish tape, which no one can confirm

    Narciso (d1f714)

  243. He might have maxed out and will now get diminishing returns, now you risk losing the Abbott (and Heller and McSally who was the most squish) Mexicans of multiple permutation of birth nationality who will have troops running around the backyard, then that whole passport/midwife issue….thats what I meant when this could be an inadvertent r-f of Ted Cruz (though that might only get him down at best to a 51-49 vcitory).

    urbanleftbehind (5eecdb)

  244. The sudden Saudi admission that Khashoggi’s murder was premeditated, which happened shortly after CIA Director Gina Haspel visited Turkey seems to argue that the recording is real. (it was also reportedly played in part to a high level Saudi prince. (a brother of King Salman)

    But it didn’t come becaused of Khashoggi’s iWatch, a story we never heard again.

    Sammy Finkelman (102c75)

  245. 225. No, Wong Kim Ark’s parents were legal residents, but could never become citizens. They were already here in 1882.

    Sammy Finkelman (102c75)

  246. So they just confirmed the Turkish prosecutors statement, it seems more an evidence of absence matter.

    Narciso (d1f714)

  247. CygnusAnalogMa #222. This kind of reasoning is the same kind of thing as arguing that Barack Obama was not a natural born citizen of the United States even if he was born in Hawaii because his father was a British subject.

    Sammy Finkelman (102c75)

  248. The Turks haven’t presented the tape, and the Saudis wont turn over the suspects

    Narciso (d1f714)

  249. 215. Kevin M (a57144) — 10/31/2018 @ 12:50 am

    Closing the “citizenship tourism” loophole has little to do with the “anchor baby” thing, except as potential.

    The people pushing this are interested in both. And the chidren born to people staying along time in the United States mainly.

    They are not content with the number of illegal aliens in the United ZStates – they want to increase the number.

    They would make the United States into another Dominican Republic, Ivory Coast or Burma.

    Think of it! An unlimited number of people to harass and scare.

    Sammy Finkelman (102c75)

  250. 252. Narciso (d1f714) — 10/31/2018 @ 9:38 am

    250.The Turks haven’t presented the tape, and the Saudis wont turn over the suspects.

    That’s where it stands now.

    People suspect that Erdogan wants some kind of a deal.

    Sammy Finkelman (102c75)

  251. I would argue that we have one type of jurisdiction over illegals and their children; that of being able to prosecute them for any civil/criminal violations and extending them the same Constitutional protections relating to that process. Think of it this way: You go on vacation to France. You commit some type of crime in France. You have the same rights as any other native born criminal defendant and you also have consular access as a US citizen. But, you don’t have the right to stay there indefinitely without applying through the proper process to acquire permanent residency in France. Therefore, I would argue, an illegal and their child born here have no allegiance to the US and are not subject to our jurisdiction. Wong Ark said those with legal residency and who have children here, those children are US citizens. If a legal permanent resident becomes a US citizen and that child that they brought with them through the same process is under a certain age, they automatically become citizens as well.

    I can’t understand how these 2 sentences.

    Therefore, I would argue, an illegal and their child born here have no allegiance to the US and are not subject to our jurisdiction.

    The Naturalization Act of 1790, through the modern era, does not define allegiance or jurisdiction the way you think. As has been explained in this thread, as well as a couple of hundred years of jurisprudence.

    Wong Ark said those with legal residency and who have children here, those children are US citizens.

    But that’s not all it said, and it didn’t limit applicability to only them, the meaning of the 14th Amendment was affirmed, and the question before the court was decided.

    Colonel Klink (Ret) (ab0951)

  252. I can’t understand how these 2 sentences…apply.

    Colonel Klink (Ret) (ab0951)

  253. I think CygnusAnalogMan has a peculiar definiton of the word “jurisdiction” in which it meansd legal residency.

    Sammy Finkelman (102c75)

  254. In the 1800’s the only importance of citizenship was the right to vote, and sometimes state laws that limited the rights of non-citizens. As for taxes, ordinary people did not pay income tax until 1943. (collected by withholding in 1942 – no taxes were levied on 1942 income I think)

    Sammy Finkelman (102c75)

  255. @ Sammy Finkleman – Jurisdiction as discussed by the writers of the 14th Amendment meant many different things. There’s a Federalist Blog article about it that goes into a lot of detail.

    http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

    With regards to Obama – the conspiracy theories were ridiculous; particularly the British subject one – Mom was a USC and Dad was here legally on student visa – so even under Wong Kim Ark – he’s a USC. I used to be an immigration adjudications officer and trying to sort out the child citizenship derivative classes is mind boggling.

    CygnusAnalogMan (9c66ec)

  256. Reading Blackstone till my eyes bleed out, I’ve come to see the rationality of the argument put forth by Beldar, et al. It’s interesting how the SC in Wong Kim Ark completely ignored the legislative history/notes and speeches the writers of the 14th Amendment made with respect to how they defined jurisdiction in two parts; political/cultural allegiance to the US and the legal right of the US to detain, try and convict a foreign born subject while extending the same protections of the US legal system to these persons. Interesting thought for Beldar, etc – given the SC interpretation in Wong Kim Ark and your belief that Congress has the legal power to change the meaning and scope of jurisdiction, is it possible new legislation and/or an EO will prevail under challenge? Or will the SC say we have to have a new Amendment to change the meaning and scope of jurisdiction as it applies to anchor babies?

    CygnusAnalogMan (9c66ec)

  257. @259

    Congress has the power. They pass a proposed constitutional amendment and states ratify it.

    It is a very liberal and activist matter to try to “evolve” the language of the constitution. It meant what it meant, there are literally dozens of laws and SCOTUS opinions on this PRIOR to the 14th amendment, so intent was some unknown quality. The 14th was plainly written, and subsequent decisions by the court confirmed it.

    Magical thinking over the last 10 years trying to redefine the language is just misguided, birthplace citizenship has been well defined for over 400 years, and the entire history of the United States.

    The least relevant branch of government to change this is the executive branch, and the worst possible way is an EO.

    I don’t believe Trump will actually do anything, it’s his typical bluster and lies, mixed up with his lack of understanding of what America is, and it plays with his nationalism, not patriotism.

    Colonel Klink (Ret) (ab0951)

  258. “so intent was NOT some unknown quality”. Haven’t set up my new Thinkpad yet, so stupid Apple keyboard.

    Colonel Klink (Ret) (ab0951)

  259. I agree with you Dana.

    The argument on the other side is that THE PARENTS are not subject to the jurisdiction of the US. They are one step removed from the baby. The baby has committed no crimes. In what way is a baby in the US not subject to the jurisdiction of the US?

    As conservatives, we want people treated as individuals, not as members of a group. That baby born in the US is an individual, and we can’t extend the crimes of the parents onto the baby.

    Mike S (89ec89)

  260. @ Mike, then just open the borders and let the flood commence because if you are unwilling to fix the anchor baby issue, through legal means, the parents will keep on coming till the end game of Obama and the Democrats is fulfilled.

    CygnusAnalogMan (9c66ec)

  261. then just open the borders and let the flood commence because if you are unwilling to fix the anchor baby issue, through legal means, the parents will keep on coming till the end game of Obama and the Democrats is fulfilled.

    So your solution is to ignore the constitution, both the 14th Amendment and Article 5? Those dirty babies, they have no rights anyway.

    Plus, you’re just making up Mike’s point.

    Colonel Klink (Ret) (53dc67)

  262. Question: Are illegal immigrants in a sanctuary state like California “subject to the jurisdiction” of the United States? It seems as if California is doing its level best to shield them from said jurisdiction.

    It would be ironic if ONLY children of illegals in sanctuary states were denied birthright citizenship.

    Kevin M (a57144)

  263. As conservatives, we want people treated as individuals, not as members of a group. That baby born in the US is an individual, and we can’t extend the crimes of the parents onto the baby.

    So, you recommend sending the parents home and putting the child in the foster-care system?

    Kevin M (a57144)

  264. It is a very liberal and activist matter to try to “evolve” the language of the constitution.

    Do you believe the 2nd Amendment applies to machine guns, and all the laws preventing private possession of same are unconstitutional? After all, a machine gun is a militia weapon. Or, how about fighter planes?

    It’s not that things evolve, but that new situations arise that Originalism cannot touch. Cell phones and the 4th Amendment. Things like that. Even the precise language of the Founders fails when questions outside their wildest expectations have to be adjudcated.

    Kevin M (a57144)

  265. You may have misunderstood what “a Conservative SCOTUS” means.

    Hint: “conservative” is the opposite of “activist”.

    That is SO 2012

    Kevin M (a57144)

  266. Do you believe the 2nd Amendment applies to machine guns, and all the laws preventing private possession of same are unconstitutional? After all, a machine gun is a militia weapon. Or, how about fighter planes?

    Yes, the 2nd applies to machine guns. You can possess a machine gun, I have two RDIAS for AR’s, an MP5, and an AK74. Anyone who can pass a background check can possess an automatic weapon, it has to have been registered and manufactured pre-86 ban. You just have to fill out a different ATF form, same as a silencer, SBR, DD, AOW, and it may take up to 12 months to get approval. And yes, if you have enough money, you can buy a fighter, lots of Eastern Bloc fighters are privately owned in the US. Most people can’t afford a $100M fighter, and the technology IN a modern fighter is actually more restricted.

    It’s not that things evolve, but that new situations arise that Originalism cannot touch. Cell phones and the 4th Amendment. Things like that. Even the precise language of the Founders fails when questions outside their wildest expectations have to be adjudcated.

    So babies are new, or borders, what’s new? If you want to change the meaning, there’s a process, and an EO isn’t it, the solution is well known, it’s quite simple, the same process as that which passed the 14th. Your argument is that the words should mean something else, it’s plain in your statement, but they don’t.

    Colonel Klink (Ret) (68437d)

  267. I don’t believe that FOPA, AWB(s), going back to GCA(68), and the NFA(34) are unconstitutional, or at a minimum, massive overreach.

    That is because THE TEXT of the Constitution has words, in both the 2nd Amendment and the 14th.

    I don’t get your equating liberals being wrong in changing the meaning of words making it OK for Trump to change the meaning of words.

    Colonel Klink (Ret) (68437d)

  268. unconstitutional should be constitutional. don’t-unconstitutional, double neg, should be single neg.

    Colonel Klink (Ret) (68437d)

  269. I think the prefatory clause in the Second Amendment pretty much says private citizens can have the same weapons a well-regulated militia would have. And the Supreme Court agreed going back to Miller. Heller focused on unreasonably dangerous but I would switch to time, place, and manner. Fully automatic rifles in shopping centers, no. Fully automatic rifles, grenades, RPGs, TOW and Stinger missiles, in the Llano Estacado, while waiting an attack by a Comanche war party, yes.

    nk (dbc370)

  270. There needs to be something like a modified Godwin’s law for constitutional discussions on the internet, the eventually devolve into an argument over guns or abortion, but usually guns.

    frosty48 (6226c1)

  271. The right to have weapons is the right to be free.

    nk (dbc370)

  272. Beldar can’t fathom Lawyers in the WH can draft an EO as imagined to stop Anchor Babies because other Lawyers who don’t deal with these issues on this blog know better? Ok.

    Listen, don’t get me wrong, a good lawyer can argue anything and be very convincing but you can’t convince me there is even one person on this blog more versed than what the WH likely is on this issue. Endless resources all linked to the Federal Courts working for the WH will be drawn to this fight and likely already have. Speculative yes, but reasonable.

    So yes our WH knows more about the Constitution and how the current system lines up to challenge this gray area than any Lawyer here. If that bothers some because “Orangeman Bad” psychosis then tough luck. That is not insulting, just sense.

    Looking forward to Orangeman Bad picking this fight, hope he picks many more. He has the right instincts and what we need to fight,

    Bob the Builder (9af831)

  273. “gray area”, LOL.

    Dave (9664fc)

  274. In two weeks it will have gone down the memory hole. Like the Wall, like DACA, like chain migration, like repealing Obamacare and replacing it with something better, like ….

    nk (dbc370)

  275. Beldar can’t fathom Lawyers in the WH can draft an EO as imagined to stop Anchor Babies because other Lawyers who don’t deal with these issues on this blog know better? Ok.

    Or the founder’s of the nation, or the nation that we based our laws on, it only goes back 600 years, but sure, the Trump White House, magically “found” a workaround. A workaround to the Constitution would be…like not constitutional, there may be a word for that…anti-constitutional, that’s not it, semi-constitutional, nope. I’m sure it will come to me.

    So yes our WH knows more about the Constitution

    Yup, the building definitely knows more, the people inside, kinda dumb.

    But sure, Go Donnie, he’s the smartiest bestest ever, and lil Stevey and big Micky are his superest law guys, they know all the laws, the most laws. America has been total losers for hundreds of years, only Donnie can see the hidden meaning.

    Colonel Klink (Ret) (ffba1f)

  276. Right because Collins and Co, would go along with a revamp of obamacare:

    https://www.tabletmag.com/jewish-news-and-politics/273097/american-press-middle-east

    narciso (d1f714)

  277. it has to have been registered and manufactured pre-86 ban.
    There’s some tension in your response.

    you can buy a fighter, lots of Eastern Bloc fighters are privately owned in the US.
    Minus everything that makes them a “fighter.”

    So babies are new, or borders, what’s new?
    Transportation isn’t horse-drawn. Stop being so intentionally dense.

    Kevin M (a57144)

  278. Heller focused on unreasonably dangerous

    And my point was that the 18th or 19th century language that seemed all-encompassing back then has been found in the modern day to have unreasonable implications in places. Sure, you can pass an amendment to correct some things (e.g. the 20th Amendment), but that is not generally they way things have gone. Mostly, it has been judges looking at the present day reality and the original meaning/intent and avoiding “suicide pacts.” With luck they aren’t just reading their politics into it.

    Kevin M (a57144)

  279. @ Colonel Klink – didn’t Beldar post that changing the jurisdiction via legislation and not an amendment was feasible? Why do we have to live with one way stare decisis on Supreme Court cases that liberals and immigration squishes like you favor and not on cases they don’t like? Maybe just a teeniest bit of hypocrisy there?

    If that legislation was challenged in court (and I would expect it to), the argument in favor would be to point out the long line of written discussion by the writers of the 14th Amendment on how they intended birthright citizenship for those who swear political allegiance to the US and how territorial jurisdiction doesn’t mean squat when these are children of folks who snuck across the border in defiance of the law.

    You have said earlier that we shouldn’t punish these USC born children of illegals for the sins of their parents. We already do so when the parents are caught and ordered removed. Its been standard practice for years that the USC children, if still a minor, will be sent back with their parents to their home countries if other arrangements have not been made (Putting the USC child with a US born/naturalized relative, etc). If you truly believe that that, then you are just throwing up your hands and surrendering because you want to feel compassionate.

    CygnusAnalogMan (9c66ec)

  280. I tend to agree, CygnusAnalogMan. Why should an invader, an exception even in Merry Old England, be an armed invader? Illegals who enter without permission are invaders. Moreover, for those who enter with permission, every visa is limited in some respects. Why should “your baby not become citizen” be a limitation only for diplomatic visas? Why not also for tourist, business, student, and temporary worker/professional visas?

    But the discussion is really academic. This is coming from Trump, which pretty much guarantees that it’s something you want to avoid stepping on in a cow pasture.

    nk (dbc370)

  281. @ NK, I noticed that Trump has now stated that Congress would be the better instrument to change the policy. With regards to tourists, business, etc – I would argue that as long as your visa is valid and you didn’t enter with the intent to give birth here, that would be fine. I would put more of a focus on Chinese birth tourism and those who willfully overstay a visa.

    CygnusAnalogMan (9c66ec)

  282. Thank you. I just remembered that when our baby was born, I was a citizen but my wife was an O-1 (national interest, not arts). 😉

    nk (dbc370)

  283. This is coming from Trump, which pretty much guarantees that it’s something you want to avoid stepping on in a cow pasture.

    I’m pretty sure this logic has embedded itself enough that DJT can just about reverse psychology anything.

    He could announce today that he won’t stop the caravan and someone on CNN would be demanding troops be sent to the border. If he times it right he can probably get them to go from condemning any plans to stop the caravan to condemning his lack of a plan to stop the caravan inside a single segment and maybe even between commercial breaks.

    He should consider announcing that he is going to reverse his plans and grant green cards to anyone who follows him on twitter. Within 15 minutes the meme on the left will be that we need to stop issuing green cards until 2020.

    frosty48 (6226c1)

  284. you are right, mr. frosty48

    mr. trump the president is a genius that way, and that is why everybody loves him

    me most of all

    nk (dbc370)

  285. The fact is that when Trump says anything truthful or informed, or dishonest or ignorant, it is entirely accidental, as random as a dice roll.

    nk (dbc370)

  286. To be clear: I can see plausible arguments to the effect that Congress — using its enumerated power from the Fourteenth Amendment to enforce that amendment, and its enumerated power from article I to regulate naturalization and its closely-related (and still plenary) power to regulate immigration — could, through ordinary legislation (signed by the POTUS or passed by super-majorities over his veto), restrict the “jurisdiction [of the United States]” in ways that would eliminate or limit “birthright citizenship.” Congress defines the geographical limits of that jurisdiction when it admits new states and territories; Congress defines the court structure and legal principles to govern within that geographical territory when it tinkers with the federal judiciary with power granted Congress within Article III. I don’t think Wong Kim Ark prohibits Congress from adjusting the limits of the United States’ jurisdiction, or speaks to that topic at all; I think Plyler v. Doe actually indirectly supports Congress’ power to adjust the jurisdiction of the United States, in its recognition that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.'”

    But: I do not see any practical possibility of passing such legislation through Congress in the first place; and even if there were, I’m by no means sure that the “plausible arguments” would in fact become winning ones when the new legislation was challenged in the courts. That uncertainty — associated with the difficult task of hewing out new precedent, distinguishable from past precedent like Wong Kim Ark — would further weaken its odds of passage in the first place. And Congress would have to repeal or substantially revise 8 U.S.C. § 1401(a), and probably some other existing statutes.

    Opponents of such legislation to eliminate birthright citizenship would also argue — to my way of thinking, quite persuasively — that proper border/expiring visa enforcement, combined with the very substantial restriction of chain migration (including the ability of a new-born citizen of illegal parents to become his parents’ immigration anchor), would solve most of this problem without tinkering at all with the “jurisdiction [of the United States].” Even if a majority in Congress could be found to enforce borders & visas and restrict chain migration, it strikes me as very improbable that a majority could also be found, as a subset of the larger group that wants to restrict immigration at all, that’s also willing to to eliminate birthright citizenship. It’s at least one bridge too far, and the “reform” most likely to end up on the cutting-room floor during any legislative compromises.

    And: The Constitution assigning no role whatsoever to the POTUS in defining or refining “the jurisdiction [of the United States],” and Congress having passed no law delegating any of its authority for that purpose to him, and there being no existing statute whose execution by the Executive would define or refine “the jurisdiction [of the United States],” I can’t see any way that the POTUS could try to eliminate birthright citizenship through an executive order. As for using an executive order to create a losing court battle that would then become a motivating cause for a congressional majority to act: That’s not the way motivation works in the real world, and one need look no farther than the utter failure to repeal or even substantially modify Obamacare after it was upheld throughout multiple court challenges. The POTUS having charged to the top of this hill, but having failed to hold it, in other words, isn’t likely to encourage Congress to charge to the top of that same hill, but rather to go around it.

    So I don’t see this leading anywhere productive in the short or middle term; I think the sort of executive order Trump seems to have in mind would be both illegal and politically counterproductive to his avowed purposes; and I think it was a mistake, just more than a week before the midterms, to give the Dems this political ammunition, because they’re using it quite effectively both to motivate their own base and to sew discord among Republicans who otherwise ought to be united in most of the Trump agenda (excluding trade, perhaps, but certainly including those who don’t want to see caravans of illegal immigrants breaching our borders).

    Beldar (fa637a)

  287. electing more panting wanton romney-boys like Paul Ryan isn’t exactly the aim of this exercise i shouldn’t think

    happyfeet (28a91b)

  288. Beldar, excellent point in the closing statement. It may give un-deserved new life to Sinema, Rosen, several CA house candidates, lop off some of Cruzer’s margin, perhaps threaten Dan Patrick who would have likely lagged Abbott by several points in most cases.

    urbanleftbehind (5eecdb)

  289. the dirty socialist base was already motivated but for example union democrats – thuggy and dirty as they are

    they’re as disgusted by anchor babies as real americans

    happyfeet (28a91b)

  290. they’re not as numerous in the SW as they are back east and there is overlap between between “blue collar” and Chicano/Tejano, moreso than in the rust belt and the triple hammer of troops in the backyard, the chicanery of passport renewal issues plus an undefined hasty blanket restriction of birthright citizen ship cuts to the quick of legal legit Mexican-American voters who occasionally give the Trumps and the R underticket a chance.

    urbanleftbehind (5eecdb)

  291. Plus I triple dog dare you to go to an Abrams or Gillum event and plead the case of Kemp and DeSantis – remember, you do get to indulge your Sessions = Wayciss! jag every so often here.

    urbanleftbehind (5eecdb)

  292. @ Beldar – thank you for the very succinct legal primer. With regards to the political argument of the viability/worthiness of enacting said legislation, I would point out that opponents of restricting immigration have been promising stricter enforcement of existing law in exchange for a pathway to amnesty/citizenship since Simpson/Mazzoli. The promise of enforcement has been the football that Lucy has been enticing the Charlie Brown Republican establishment to fall for ever since.

    CygnusAnalogMan (9c66ec)

  293. @ Urbanleftbehind – the so-called passport chicanery issues is a fake news story by the MBM to drum up outrage from their Democratic allies. If I remember correctly, whoever printed that garbage actually had to print a correction acknowledging that the number of cases was less under Trump than it was under his predecessor. I would think that those blue collar/Chicano/Tejano voters on the border would be more aware of the security/crime issues on the border given that they see and hear all sorts of reports of illegals/rip crews breaking into houses, trashing the outdoors, finding dead bodies in their neighborhoods, etc.

    CygnusAnalogMan (9c66ec)

  294. Let’s secure the border, restrict visas for pregnant women, address visa overstays, and quit worrying about it.

    DRJ (15874d)

  295. Mr. DeSantis is a good American, friendly and frugal, he’s always ready to lend a helpful hand to his friends and neighborhood

    he likes capitalism and freedom

    Gillum hates freedom and him and his staffers are disdainful of what they call “crackers” (racist dog whistle)

    happyfeet (28a91b)

  296. restrict visas for pregnant women

    That will go over well…

    Will we require every woman who applies for a visa to be tested to verify she is free of alien infestation?

    Dave (9664fc)

  297. I would think that the ol’ stirrup seat would be part and parcel of any sane humanoid alien processing.

    urbanleftbehind (5eecdb)

  298. It is in the woman’s and child’s health interest not to travel late in pregnancy, so I think you can reasonably argue visas should expire before the 6th or 7th month of pregnancy.

    DRJ (15874d)

  299. Airline rules for traveling while pregnant: 28 weeks seems to be a turning point.

    DRJ (15874d)

  300. … especially for international travel.

    DRJ (15874d)

  301. It’s interesting, that all of us together, figured out that in order to avoid sunburn, we don’t need to order the sun to stop shining, but we can do just fine with sunblock, hats, parasols, long sleeves and pantslegs, awnings, and roofs.

    nk (dbc370)

  302. We require health certificates for travelers from certain areas, and medical eligibility is a requirement of INA Sections 212(a) and 221(d). I think a President could require medical certificates regarding pregnancy. It might trigger a gender-related discrimination claim but there is a rational basis to restrict or make special ruled for third trimester international travel for health reasons. Airlines do it.

    DRJ (15874d)

  303. The key is altering visa rules and then enforcing visa overstays, but both are clearly within the power of the executive.

    DRJ (15874d)

  304. Further, if a foreign traveler gets pregnant while in America, we (probably) have access to the father and can hold him financially accountable as we do with American parents. The taxpayers may have to pay but it is possible there will be others to hold financially responsible.

    DRJ (15874d)

  305. But ignore this. What do I know compared to the brilliant White House lawyers?

    DRJ (15874d)

  306. Inspired by a link (dropped in another thread, but more germane to this one) by Haiku, I decided to follow the breadcrumbs dropped in this pro-Trump EO statement by David Horowitz:

    At Levin’s request, Horowitz explained how an executive order issued by Trump ending birthright citizenship for children of illegal immigrants would not be lawless because the order would be pursuant to law. It is not like Obama’s illegal DACA amnesty, which was an order contrary to law.

    “For 130 years there’s an uninterrupted stream of case law, including cases written by the Wong Kim Ark justice, Horace Gray, saying that if you come here without consent and you do not have legal status, it is, in the most literal and physical sense, as if you are standing outside of our boundaries in terms of access to the courts, in terms of rights, in terms of everything,” Horowitz said. This means that the 14th Amendment does not grant citizenship to the children of illegal aliens.

    Horowitz made the point that our modern concept of birthright citizenship came about not as the result of a court decision, not by an act of Congress, but by the executive branch’s lax enforcement of immigration law. Levin pointed out that if birthright citizenship is a bureaucratic creation, as the chief of the bureaucracy, President Trump has the right to correct years of extra-constitutional behavior by the executive branch.

    There are two points here that caused my eybrows to pop. One was a reference to a decision by the author Wong Kim Ark that seemed to back positions opposed to birthright citizenship. The other was an assertion that “birthright citizenship” was an administrative creation by the bureaucracy, rather than the fruit of Wong Kim Ark.

    Well, it actually wasn’t hard to find where Horowitz got his data. The same arguments are made in the pro-Trump American Greatness by a Mr. Pedro Gonzalez, in more detail:

    https://amgreatness.com/2018/10/30/birthright-citizenship-and-its-allies/

    That said, the case cited in the article, Nishimura Ekiu v. United States isn’t germane to birthright citizenship. It has an unremarkable holding that the US government has the right to keep non-citizens out.

    https://www.law.cornell.edu/supremecourt/text/142/651

    I actually found the argument relating to birthright citizenship being an administrative creation to be more compelling, although I have a feeling there are some Federal Laws being passed that compel the results being complained about. The American Greatness claim is as follows:

    Moreover, the claim that Trump is out to “reverse centuries of American tradition,” asserted by the likes of John Yoo and Angelica Alvarez, is bunk. As far as anyone can tell, unrestricted birthright citizenship for all children born on U.S. soil began sometime in the mid-1960s, not “centuries” ago.

    Embedded in that is the following link:

    https://claremont.org/crb/basicpage/birthright-citizenship/

    And we find the following claim by John Eastman, who has written some articles on this topic, there:

    Treating Wong Kim Ark has having “long-settled” the matter, as Chavez and others do, runs into other problems as well. For example, none of the various statutory offers of citizenship that Congress made to Native Americans in the 1920s would have been necessary if Wong Kim Ark had already settled the issue as a matter of constitutional right. The roughly 1.2 million children born during the 1920s to guest workers from Mexico and Central America who were “repatriated” along with their parents after work dried up in the wake of the Great Depression would have had claims to citizenship that simply were never made. The same is true of the Braceros program in the 1950s and early 1960s; when it ended, all of those guest workers, and the many children who had been born to them during the program, were returned home to their homelands, and no one has been able to identify for me a single instance of any of them claiming a right to stay in the United States on the ground they were “birthright citizens” under the language of the 14th Amendment.

    This post has become too long and consumed too much of my time, so I am not going to try to argue point 2, but leave the handling it to others. I will note that, if Birthright Citizenship is merely an artifact of bureaucratic custom (and not embedded in immigration law), there might be some ability to overturn it. I am deeply skeptical that’s the case, but there are people willing to make plausible arguments about it.

    Appalled (96665e)

  307. A rare conjunction. Harry Reid agrees with Beldar. Or at least, he agreed with Beldar’s view back in 1993
    https://reason.com/volokh/2018/10/30/jim-ho-on-the-fourteenth-amendment-and-c

    Of course, Volokh sets out the argument against. One further note to remember: the meaning of “not subject to the jurisdiction” as referring to diplomats (because of diplomatic immunity) was already established by the time of the Revolution, and the idea that we call birthright citizenship was part and parcel of British Common law. So those would have been the meanings and context in which the Founders would have approached the question.

    And one final note
    https://www.jstor.org/stable/25470577?seq=1#page_scan_tab_contents

    kishnevi (bb03e6)

  308. 304 – and PX – 10,000’s

    mg (536c95)

  309. Glacier glasses

    mg (536c95)

  310. we don’t need to order the sun to stop shining

    as long as the sun

    continues to shine

    happyfeet (28a91b)

  311. RE; link at 258:

    purpose of the Fourteenth Amendments first section was to end the denial of those fundamental rights that belong to all United States citizens by virtue of their citizenship under Article IV, Sec. II of the U.S. Constitution was imperative to first define citizenship of the United States. Otherwise, a State could refuse to recognize newly emancipated slaves as citizens by withholding the right to sue…

    Withholding the right to sue would be RESULT or JUSTIFIED by sayibng the person is not a citizen.

    the Fourteenth Amendment acts to recognize all persons as citizens who do not owe allegiance to some other government when naturalized or born.

    Wait wait wait here. There’s nothing here about any allegiance. It’s true taht the naturilization laws did require any citizen to rebnounce other citizenships.

    Perhaps the first most important thing to understand about national birthright is that there was no national birthright rule applicable within the States prior to the year 1866.

    Of course that’s obvious. Now this would apply to people who were not naturalized.

    in 1794. Madison said the question of whether Rep. Smith had been a citizen of the United States for seven years at the time of the declaration of independence rested entirely with the Constitution of South Carolina:

    That’s true and so what.

    Sammy Finkelman (102c75)

  312. The Democrats are afraid of this issue. That’s why trump doubles down.

    Look at this:

    https://twitter.com/NancyPelosi/status/1057315093418045441

    Nancy Pelosi
    @NancyPelosi

    .@realDonaldTrump’s new claim that he can unilaterally end the Constitution’s guarantee of citizenship (a power he does not have) shows his desperation to distract from the GOP’s attacks on Medicare, Medicaid & people with pre-existing conditions

    Nevertheless, Trump may increase Democratic turnout even without Democrats trying.

    He won’t increazse Republican turnout – it’s about as high as it can get. The Democrats used to try to scare people about taking away Social Security, Medicare. Now, here is Trump all on his own trying to scare people about taking away citizenship. Its hard to thik of soemthig that could juice turnout more against Republicans.

    But Democrats would rather talk about something unreal – taking away health care for those with pre-existing conditions. It is highly unlikely that legislation that does anything like that will be signed into law if Republicans retain control of both houses of Congress, especially with a reduced margin in the House of Representatives. (

    Nor will the Democrats, if they take control, pass any climate control bill.

    Those issues are irrelevant.

    Investigations, subpoenas and maybe even impeachment proceedings are a possibility, as is danger to free speech. If control of the Senate changes there could be problems confirming anyone to anything.

    The caravan won’t turn back either with Republicans in control, like Rush Limbaugh likes to say. It’s being sponsored, or supported, by the anti-American opposition in Honduras. Maybe with some help from some foreign dictatorships.

    Sammy Finkelman (102c75)

  313. Trump’s newest announcement/

    https://www.foxnews.com/politics/trump-caravan-remarks-at-the-white-house

    Now the catch-22 is that applications at ports of entry are being metered. There is waiting period that is now up to months – but the people in the first caravan will probably just wait in Mexico.

    Once entered into the United states, it takes several years for an asylum case to be heard. The only people deported quickly are those who leave voluntarily (and non-Mexicans without residency rights in Mexico cannot just cross back over the border – it then does not count as a deportation I think – that’s the incentive) those whose cases are prioritized, or those who have outstanding deportations orders against them – and that’s not so quick because there can be requests for hardship exemptions etc.

    Trump cannot deny asylum because of the way the person arrived in the United States. He can arrest them, and criminally charge them, but to confine them he has to release others, as he indeed is doing. He cannot confine children under 18 for more than 20 days, (at least not in most conditions) and he cannot separate them from their parents or guardians.

    Sammy Finkelman (102c75)

  314. Donald Trump is not the devil.

    He is…

    The devil’s advocate.

    And a very good devil’s advocate is he.

    He specializes in coming out in favor of positions that nobdy else will (because they are largely WRONG, morally, legally or factually, that, however, nobody is willing and able to argue against, but, at the same time. none of his oppoents are willing to endorse, because they are, again, WRONG, morally, legally or factually.

    Sammy Finkelman (102c75)

  315. Thank you, urbanleftbehind (#291). My guess is that Gov. Abbott — in his wheelchair, a well-known figure to Texans by now, for he’s been on every Texas statewide ballot since 1996 (as a state supreme court justice) — is the most popular politician in Texas right now by a wide margin. He is wicked smart — I personally know this from having answered his questioning from the bench, when he was a civil district judge in Houston. He is very articulate in every setting, which neither of his two predecessors, Rick Perry and George W. Bush, could claim, but he’s also comprehensively charming. I will not at all be surprised to see Abbott top 60% (which the latest polling has him nibbling at already), and I expect that he will lead both Sen. Cruz and the down-ballot statewide-race Republicans by several points. I claim no insights into his ambitions, but I expect him to become more visible in the GOP nationally during his next term. I’m also curious to see how Dan Patrick runs.

    And: You’re welcome, CygnusAnalogMan (#295). I was indeed trying to boil down my own thinking, which many comments and questions (including yours) on this thread have certainly affected.

    @ DRJ, who wrote (#297):

    Let’s secure the border, restrict visas for pregnant women, address visa overstays, and quit worrying about it.

    That’s my advice, too, both as a matter of policy and of practical, immediate politics. I enjoyed your following string of comments, too, DRJ, up to #308, which made me laugh loudly enough to wake my dog (briefly). None of us here can possibly be as smart as the White House lawyers who are advising Trump, as imagined within Trump’s biggest fans’ heads.

    @ kish: Thank you for that very interesting link in #310! I was unaware of the Reid precedent. Mine is surely a minority viewpoint.

    Beldar (fa637a)

  316. And more to the point: Congress has never passed a law trying to restrict birthright citizenship, and isn’t likely to, making my speculation quite idle in the real world.

    Beldar (fa637a)

  317. Next week: Beldar discusses how many Ted Cruz holographic simulacra can simultaneously dance on the head of a single pin! Stay tuned.

    Beldar (fa637a)

  318. DRJ – As plainly correct as you are, I simply can’t imagine a Congress or Judiciary who would agree to any such governmental limitation on a woman traveling. It is HER body and SHE gets to decide. This is the majority culture and it sadly would not be worth fighting in the abortion theater of politics to enough GOPe.

    Beldar – From what I have seen, Senator Howard, the author of the “jurisdiction” clause plainly meant it to limit protections to currently indigenous Africans and Islanders who were being done very wrong by the Democrat South. It was all about closing a loophole. To apply the current common and well-established usage of “jurisdiction” is to wildly expand the 14th beyond intent.

    Cheers.

    Ed from SFV (6d42fa)

  319. Pardon the source, but the guy talking at 00:35 to 00:50 gets the Denzel Washinton Training Day “Mah N^%/%<" award. http://www.univision.com/shows/noticiero-univision/amenaza-de-epidemias-en-nayarit-mexico-tras-la-devastacion-que-dejo-el-huracan-willa-video

    urbanleftbehind (49b0be)

  320. Oh and beto seems to have a taste for loafer.

    narciso (d1f714)

  321. He’ll beat the spread, but this aint horseshoes or hand grenades.

    urbanleftbehind (49b0be)

  322. No I think he is reasonably ticked off,

    Narciso (d1f714)

  323. Ed,

    Visas of many types have been created pursuant to Congressional legislation, but the issuance and administration of such visas is an executive branch responsibility. Accordingly, I believe my suggestions could be implemented by the executive branch without the need for further Congressional action.

    DRJ (15874d)

  324. And I already addressed the judicial response. Clearly some courts will find my suggestions unacceptable but there is a rational, legally defensible basis for it.

    DRJ (15874d)

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