Patterico's Pontifications

8/21/2019

Trump Reconsidering Birthright Citizenship

Filed under: General — Dana @ 3:49 pm



[guest post by Dana]

While immigration has been a central plank of his presidency, and in light of the 14th Amendment, Trump said today that he is once again considering an end to birthright citizenship:

Donald Trump has said the government is weighing whether to abolish birth right citizenship, calling the constitutional right “ridiculous”.

Currently a child born in the US is entitled to a US passport. The constitution’s 14th amendment, passed after the civil war to ensure that black Americans had full citizenship rights, grants citizenship to “all persons born or naturalized in the United States”.

Speaking to reporters outside the White House on Wednesday, Trump said: “We are looking at birthright citizenship very seriously. It’s frankly ridiculous.”

Trump did not elaborate any further.

The 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Back in October, right before the midterms, Trump said that he would abolish birthright citizenship via executive order:

“You can definitely do it with an act of Congress. But now they’re saying I can do it just with an executive order,” he said at the time.

Uncoincidentally:

The president’s announcement came hours after the White House said it would move to scrap a major court agreement in order to allow for migrant families to be detained longer as their cases are being considered, instead of having to release them after 20 days.

And then there are the legal issue involved:

Legal experts say the ultimate question regarding birthright citizenship is whether the 14th Amendment – which affords citizenship to “[a]ll 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” – encompasses the children of illegal immigrants.

The unresolved legal dispute centers on whether those children are “subject” to the jurisdiction of the United States.

You can read the opinions of legal experts here, here, here and here.

(Cross-posted at The Jury Talks Back.)

–Dana

116 Responses to “Trump Reconsidering Birthright Citizenship”

  1. Hello.

    Dana (fdf131)

  2. More Pavlovian stimulus/response training for his gullible base.

    He won’t do jacksh*t.

    Dave (1bb933)

  3. What’s ridiculous is Trump’s opinion on the document he swore to defend and uphold.

    Paul Montagu (6950ff)

  4. not a bad idea, but shouldn’t be done by EO.

    JRH (52aed3)

  5. See the last time he moronically talked about this particular moronic idea…http://patterico.com/2018/10/30/president-trump-set-to-sign-executive-order-he-believes-will-end-birthright-citizenship/

    Colonel Klink (Ret) (6e7a1c)

  6. What’s ridiculous is Trump’s opinion on the document he swore to defend and uphold.

    Ya, well that ship sailed a long, long time ago.

    Dave (1bb933)

  7. “Trump did not elaborate any further.”

    No need to, really. He got himself into the news cycle, probably positively “for the base”, and that’s really always (OK, 92% of the time) the main -slash- sole goal. GOAAL!!!! (Though truth be told, I do suspect His Orangeness rather likes to raise blood pressures on the left -slash- otherwards-from-him, as well.)

    Q! (6c180d)

  8. Yeah, this is going to SCOTUS. And it smacks to me as a political-ploy as it would navigate through the courts during the election season.

    No idea how the courts would rule the “and subject to the jurisdiction thereof“.

    whembly (4605df)

  9. Well, as I read the 14th amendment, it means that citizenship passes from natural born or naturalized citizen parents to their children. In other words, only the children of citizens are granted citizenship. “Natural born” means someone born to a citizen, not some immigrant who wandered in and dumped a baby at a hospital. If it applies to legal diplomats, why not to illegal immigrants? This whole idea of birthright citizenship is absurd.

    Gawain's Ghost (b25cd1)

  10. Well, as I read the 14th amendment, it means that citizenship passes from natural born or naturalized citizen parents to their children.

    Are you sure you’re reading the right document? Because the 14th Amendment says nothing even remotely like that.

    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.

    “…and subject to the jurisdiction thereof…” is a well-understood exception for diplomatic personnel who are not subject to our laws while in the US (by agreement with their government to grant our emissaries the same privilege).

    Dave (1bb933)

  11. And it dates back to prior to America being country and the doctrine of Jus Solis, as well as the Immigration Act of 1790, with that pesky “free white” clause.

    Colonel Klink (Ret) (6e7a1c)

  12. In other news…“That was a big day, Medal of Honor. Nothing like the Medal of Honor, I wanted one, but they told me I don’t qualify, Woody. I said, ‘Can I give it to myself anyway?’ They said, ‘I don’t think that’s a good idea.’”

    Colonel Klink (Ret) (6e7a1c)

  13. What I think is that Trump has finally succeeded in surrounding himself completely with yes-men, that’s what I think. You think about it, too.

    nk (dbc370)

  14. As usual, Trump wraps the serious with the ridiculous. It’s like having an oncologist wear a clown suit while he examines you.

    Whether birthright citizenship for illegal aliens is a good idea is a debate worth having. With the understanding that a Constitutional Amendment would be needed to change it.

    Bored Lawyer (423ce8)

  15. Whether birthright citizenship for illegal aliens is a good idea is a debate worth having. With the understanding that a Constitutional Amendment would be needed to change it.

    I agree on both counts.

    Dave (1bb933)

  16. Whether birthright citizenship for illegal aliens is a good idea is a debate worth having.

    Being born here means your not an alien, legal or otherwise.

    Colonel Klink (Ret) (6e7a1c)

  17. Nk @ 14,

    If that’s true then does it mean they’re still only the best and the brightest??

    Dana (fdf131)

  18. Col. Klink @ 5,

    Thanks for posting the link. I meant to incorporate it in the post but forgot.

    Dana (fdf131)

  19. Being born here means your not an alien, legal or otherwise.

    He’s talking about whether it’s a good idea to grant birthright citizenship to the children of people not legally in the country.

    Dave (1bb933)

  20. He’s talking about whether it’s a good idea to grant birthright citizenship to the children of people not legally in the country.

    This has been America since before it’s founding, so I guess if you can repeal the 14th Amendment, which would require convincing a super-majority of congress, and a majority of states, then sure. Since that is never going to happen, and Trump is specifically not proposing that, just putting his autograph on a piece of paper and claiming it did something, so, you know, Trumpian success.

    Colonel Klink (Ret) (6e7a1c)

  21. Interesting look at efforts to undo birthright citizenship:

    Now, Republicans in every single Congress since 1991 have introduced legislation to undo birthright citizenship. They reached a high watermark of support when 95 House members, including two Democrats, one of whom is now a Republican, co-sponsored then representative Nathan Deal’s Birthright Citizenship Act of 2009.

    Dana (fdf131)

  22. No, Dana, it means that they are dead-enders with nowhere else to go and scared to death to contradict him no matter how deranged his ideas.

    nk (dbc370)

  23. When Trump rekindles this subject, you know he’s just in campaign mode.

    Dana (fdf131)

  24. So what did we learn this week? Donald J. Trump is an idiot, I know, shocking revelation.

    Colonel Klink (Ret) (6e7a1c)

  25. Gruber/mittens/2020

    mg (8cbc69)

  26. And it’s only Wednesday…!!!!

    Colonel Klink (Ret) (6e7a1c)

  27. This has been America since before it’s founding

    Uh, not really.

    so I guess if you can repeal the 14th Amendment

    Amend, not repeal. But you’re right that it’s hopeless in the current environment.

    Could maybe see it as part of some grand compromise that includes amnesty for long-term illegals without recent legal trouble, but compromise is hardly the zeitgeist of today’s America.

    Dave (1bb933)

  28. Being born here means your not an alien, legal or otherwise.

    That is not completely true even under current law. The 14th Amendment states that you have to be born in the U.S. and “subject to the jurisdiction thereof.” That was meant to exclude children of ambassadors born here, but not subject to U.S. jurisdiciton. (There are some who argue, not very convincingly IMO, that this could also exclude illegal aliens.)

    But the legal status of the parents at birth is relevant to the issue. One could see widening that exception to include those who are here illegally. Which would likely require a Constitutional amendment.

    Bored Lawyer (423ce8)

  29. Do Trump’s supporters want to live in a world where a crystal clear amendment to the constitution, such as the 1st or 2nd amendments, to say nothing of the 6th, can be reinterpreted wildly by an executive order by Elizabeth Warren in 2021?

    I definitely think birthright citizenship was a mistake. It should have been drafted narrowly to make slaves free and full citizens, and not what it is today, a powerful motivation to jump the fence while pregnant. We should have wide gates for immigration, but there should be a process beyond ‘cheat your way to the finish line and your kids are in’.

    Somehow Trump seems to have made this already far-fetched goal a little farther fetched.

    The more the dem primary heats up the more I’m trying to find a good reason to vote for Trump. It’s not like 2016. I actually know Trump will appoint good judges. I know the democrat will be worse, even if Trump is terrible on foreign policy and spending. But this stuff… it’s going to be a long year guys.

    Dustin (6d7686)

  30. Interesting Dana. The 2009 bill is only a few sentences, and the operative part is:

    “(b) Definition.—Acknowledging the right of birthright citizenship established by section 1 of the 14th amendment to the Constitution, a person born in the United States shall be considered ‘subject to the jurisdiction’ of the United States for purposes of subsection (a)(1) if the person is born in the United States of parents, one of whom is—

    “(1) a citizen or national of the United States;
    “(2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
    “(3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).”.

    (There’s also a grandfather clause)

    Dave (1bb933)

  31. January 20, 2021:

    Chief Justice Roberts: Repeat after me: “I, Donald John Trump ….”
    Trump: Wait a minute! You’re not Donald John Trump. You’re John Roberts. I’m Donald John Trump!
    CJ Roberts: Yes, Mr. President, I know that you’re Donald John Trump. That’s why I’m asking you to say, “I, Donald John Trump ….”
    Trump: You’re doing it again! Are you crazy? I’m not going to say you’re Donald John Trump. You just said I’m Donald John Trump. You’re John Roberts. John Roberts!
    CJ Roberts: Yes, President, but you see I’m here to give you the oath of office ….
    Trump: Hold on! Just hold on! Who are you?
    CJ Roberts: I am Chief Justice John Roberts, Mr. President.
    Trump: And who am I?
    CJ Roberts: President-elect Donald John Trump, Mr. President.
    Trump: You almost had me fooled there for a minute, but you gave yourself away at the end. You crazy people always do.
    CJ Roberts: How is that, Mr. President?
    Trump: That’s it, and you don’t even realize it, that’s how crazy you are. If I’m the President-elect, why do you keep calling me Mr. President?
    CJRoberts: (Speechless.)
    Trump: Security! Security! Kellyanne! Mommy!

    nk (dbc370)

  32. If you’re in the USA, you’re in the USA’s jurisdiction.

    Dustin (6d7686)

  33. Citizenship tourism is suspect, but the rest of it is sacrosanct.

    Kevin M (21ca15)

  34. The ‘economy’ of words; so many shiny objects this week, eh, Captain, sir?!

    Thursday ought to be about the time to propose raising the Titanic.

    Chum for the weekend shows.

    DCSCA (797bc0)

  35. If you’re in the USA, you’re in the USA’s jurisdiction.

    Foreign diplomats are not, and not due to any provision of the Constitution.

    Thus, at least in principle, who is “…subject to the jurisdiction thereof…” (and who is not) is a legislative question.

    I agree that it’s dangerous to meddle with.

    Dave (1bb933)

  36. nk (dbc370) — 8/21/2019 @ 6:07 pm

    Roberts is a known trouble-maker. He tried to pull a fast one on Obama in 2009, too.

    Dave (1bb933)

  37. The “Birthright Citizenship Act of 20XX” as it keeps getting revived as a zombie, would never pass constitutional muster. The citizenship clause of the 14th Amendment states in plain English, and has been reaffirmed time after time going all the way back to Kim.

    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.

    I could see how you could get around that, just pass a law that all embryo’s are property of the mother until birth, and then until some age later, children remain property with no more rights than a Buick (wait those are all Chinese or German aren’t they?); and also another law that ensure’s non-citizens are outside the jurisdiction of United States until they become citizens. I see a few pretty glaring problems with that, you know, the Constitution, freedom, pro-life philosophy, and an embryo being a person, and persons are free, immigration (illegal kind) kinda complicates things.

    Again, you can always pass a Constitutional amendment replacing the Citizenship Clause with something else, but I’d lay odds on that being only slightly more likely than passing a law that all children are chattel.

    You could make it illegal to give birth in the US by a non-citizen. There you go, if you do, prison, or the boot. If you have a green card or are a legal immigrant but not a citizen, tough, get out deadbeat, and take your anchor baby with you, or we keep it and give it to the nice white couple in the burbs…wait…yeah that.

    Colonel Klink (Ret) (6e7a1c)

  38. See the last time he moronically talked about this particular moronic idea…

    And my link back then to McLaughlin is just as relevant now.

    Paul Montagu (a2342d)

  39. Colonel Klink (Ret) (6e7a1c) — 8/21/2019 @ 6:32 pm

    I think it’s much simpler.

    Just give any child born to two parents without legal status diplomatic immunity until they reach the age of 1 minute.

    Bam. Done.

    Dave (1bb933)

  40. You mean Diplomatic Immunity.

    Colonel Klink (Ret) (6e7a1c)

  41. Waiting for the “five part test” to determine if you are born here and a citizen. No the Ninth circuit has a “8 part test!. But the restatement proposes a balancing test.

    Q: Where did the idea come from that born here =citizen, even if parent is here illegally?

    The concept seems a little weird as applied to birth tourists and border crashers.

    And despite Dave’s certainty that no one that uses silverware could possibly see it otherwise, if its from case law, we know how much respect the other side has for that. Does a penumbra permit a ruling on this? Not legally here, not a citizen?

    But it would have to be going forward right?

    Harcourt Fenton Mudd (0c349e)

  42. Q: Where did the idea come from that born here =citizen, even if parent is here illegally?

    The 14th Amendment, ratified by congress, and the states, and it’s words, as well as Article II of Constitution where the committee of 11 changed the draft for President and Commander in Chief from “Citizen” to “Natural Born Citizen”, as well as Jus Soli citizenship in basic English Common Law for centuries. Of course there is American SCOTUS decisions going back to Kim Ark as well. There was the Immigration Act of 1790, 1795, 1798, 1805…

    Heck, prior to the Constitution existing states used the words, ex.

    Be it enacted by the General Assembly of Maryland—that the Marquis de laFayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be entitled to all the Immunities, Rights and Privileges of natural born Citizens thereof

    Lady people and non-whites were not so originally blessed though, well free whites.

    Colonel Klink (Ret) (6e7a1c)

  43. Foreign diplomats are not, and not due to any provision of the Constitution.

    Thus, at least in principle, who is “…subject to the jurisdiction thereof…” (and who is not) is a legislative question.

    I agree that it’s dangerous to meddle with.

    Dave (1bb933) — 8/21/2019 @ 6:25 pm

    BANG!

    It’s JUST BEEN REVOKED.


    If the USA said “diplomats don’t have that immunity on Tuesday” then maybe that would break some agreements, but so be it.

    The fact that subject to jurisdiction is based on what our laws say proves that they are, in fact, subject to our jurisdiction. Even if that happens to mean they are immune right now.

    Dustin (6d7686)

  44. The 14th Amendment’s authors never considered a world where you could travel trivially from any place on the planet, give birth, then travel home, all in a few day’s time.

    In 1865, one brought their family to the USA for good, with the exception of diplomats or perhaps foreign factors. The act of committing to the USA is at the core of the 14th Amenment’s birthright citizenship, and it’s legal extensions to those born to US citizens overseas (which there also wasn’t much of in 1865, but has been written into law as that practice increased).

    Persons who immigrate to the US, legally or not, are making a valid commitment to make a life here and can be differentiated from the base-taggers. Their children, if actually born here, are and ought to be US citizens. Children born on a one-day layover, not so much.

    Kevin M (21ca15)

  45. Dustin,

    The language was discussed during the ratification, and explained to mean just that: diplomats excluded as they had no intention of living here for good, and were generally immune to our laws.

    BTW, diplomatic immunity may be part of our laws, but those laws simply implement Treaty obligations. You might as well be saying that laws protecting persecution of religious minorities can be BANG repealed and all the Zoroastrians sent off to camps.

    Kevin M (21ca15)

  46. At times like this, I wish that people took off their Trump-colored glasses and treated this as if the next President would be deciding it.

    Kevin M (21ca15)

  47. BTW, diplomatic immunity may be part of our laws, but those laws simply implement Treaty obligations.

    Exactly. If you can apply them, must be in jurisdiction. Immune diplomats are only immune because the jurisdiction said so.

    The language was discussed during the ratification, and explained to mean just that: diplomats excluded as they had no intention of living here for good, and were generally immune to our laws.

    I get what you’re saying. This is all a silly thought game.

    But it is foolish in the extreme to start playing games with words like jurisdiction in order to change what a constitutional amendment said. Gotta amend the constitution to do it.

    I wouldn’t like it if a Ministry of Truth started offering Regulations forbidding certain speech, even if congress made a law saying regulations aren’t laws and ministries aren’t congress. Laws have to be interpreted in good faith, to have consistent, predictable meaning, or they aren’t really laws. That 14th amendment has been understood for 150 years.

    In no shape, way, or form would I feel differently if it weren’t Trump’s stupid idea. In fact, I am quite sure Elizabeth Warren would love to reinterpret, say, the 2nd Amendment.

    Most Trump critics would not change their tune if Mitt Romney were doing this stuff. On the contrary, the guys carrying water for one GOP president are very likely to do it for another, even if they are as different as Trump and Romney.

    Dustin (6d7686)

  48. 10. Gawain’s Ghost (b25cd1) — 8/21/2019 @ 4:30 pm

    it means that citizenship passes from natural born or naturalized citizen parents to their children. In other words, only the children of citizens are granted citizenship.

    And that would of course, be retroaactive, so we’d need to investigate the citizenship of someone’s parents going back several generations.

    That would risk turning the United States into the Dominican Republic, the Ivory Coast or Burma, f not India.

    It would be a very nice way to increase Democratic turnout.

    Trump actually is not about to propose that – to threate to strip citizens of citizenship. What they’re working on is trying to find some way they could do that by reinsterpetation of the 14th amendment and have t not be retroactive.

    If it applies to legal diplomats, why not to illegal immigrants?

    Because there’s no claim they are outside the jurisdiction of the United States.

    This whole idea of birthright citizenship is absurd.

    What’s absurd is making the cutoff, before which you look no further, birth in the United States..

    The cutoff should be at least five or six years old if they have been here more than seven years at the time when the question is raised.

    Any other policy is absurd.

    Sammy Finkelman (b47846)

  49. “The 14th Amendment’s authors never considered a world where you could travel trivially from any place on the planet, give birth, then travel home, all in a few day’s time.”

    The 2nd Amendment’s authors never considered a world where a gun could trivially fire dozens of shots in a matter of seconds.

    Davethulhu (bc6fa6)

  50. Dustin,

    Do you think the child of two French nationals, who fly to New York on Tuesday, induce labor on Wednesday, and fly home on Thursday OUGHT to be an American citizen?

    The IRS doesn’t.

    Kevin M (21ca15)

  51. The 2nd Amendment’s authors never considered a world where a gun could trivially fire dozens of shots in a matter of seconds.

    They had cannon, and grapeshot, and other indiscriminate killing tools. None of which were prohibited.

    Kevin M (21ca15)

  52. And perhaps that’s how you kill Citizenship Tourism.

    Hospital bureaucrat: “So, Mssr and Mme, we come to a point of decision. We have a standard IRS Form W-4X, in which you claim, or do not claim, US citizenship for your child. Know, however that choosing the American citizenship option will require you to file a tax return for [him] each year, and require him to report all his adult earnings for US taxation. This may be in addition to French taxation. The IRS doesn’t care.”

    Mother: “Quoi le fuque?!”
    Fatehr: “I’m gonna KILL our lawyer!”

    Kevin M (21ca15)

  53. They had cannon, and grapeshot, and other indiscriminate killing tools. None of which were prohibited.

    They aren’t banned today, they’re regulated, you just have to file for a Destructive Devices license, as long as it is legal in your state. Same goes for a fully automatic firearm, a silencer, SBR…

    You can order a civil war era canon and have it delivered to your house if you want, no background check necessary.

    Colonel Klink (Ret) (6e7a1c)

  54. 45. Kevin M (21ca15) — 8/21/2019 @ 7:36 pm

    The 14th Amendment’s authors never considered a world where you could travel trivially from any place on the planet, give birth, then travel home, all in a few day’s time.

    They never considered a world in which immigration (and eventual citizenship) would be prohibited to anyone who could afford paying for the transportation. So who would want to use that as a loophole?

    They never considered a world in which immigration would be considered harmful economically to the country to which people freely came *

    I’d be interested in learning the name of the defunct economist who thought up that idea!


    * Except maybe for some people who were anti-Chinese in California, but they didn’t write the 14th amendment.

    There wasn’t too much birth registration then either, so someone might even have trouble proving they were born in the United states if they didn’tt grow up in the United States. Come to think of it – there were a few Africans brought to the United States circa 1857-1860 Nobody ever raised an issue with them I think, although they were not covered by that clause, but mabe that is wrong.

    Citizenship was an issue with regard to voting or taking government jobs. It didn’t affect much of anything else until World War I.

    Sammy Finkelman (b47846)

  55. . This may be in addition to French taxation. The IRS doesn’t care

    I think foreign taxes are deducted from taxes owed.

    Sammy Finkelman (b47846)

  56. It only took a week to cross the Atlantic in the 1860s (when the 14th amendment was passed) with travel time decreasing every year. Trains also existed and you could cross significant distances in relatively little time. The mid/late 1800s were probably closer in (lack of) limitations to the modern world than they were to the late 1700s.

    Nic (896fdf)

  57. Sonuvagun if these two didn’t try the old moose and squirrel trick… https://twitter.com/TheBabylonBee/status/1164294085907103744

    Colonel Haiku (2601c0)

  58. “They had cannon, and grapeshot, and other indiscriminate killing tools. None of which were prohibited.”

    I was trying to make a point, but if you want to be pedantic, at the time the 14th was written, there were essentially no restrictions on immigration. Thus, there would be no reason to sneak in.

    Davethulhu (bc6fa6)

  59. 52. The Second Amendment obviously applies to the most moddrn military weapons, which is not what Heller found.

    If it’s an individual right, it means any private person or small group can own ballistic missiles.

    That’s not what it means, although there wasn’t the concept of illegal to own weapons, just the concept of expensive ones. The “people” is a group that can be considered the population at large,. It just does not have to be sponsored by a state, or backed by a constitution, but it must be a group that can be considered to be the government. (in the same sense as we culd speak today oof the people of Hong Kong)

    Cf in the declaration of IndependenceL

    it is the right of the people to alter or abolish [a form of government]

    Or in the Preamble to the 1787 Constition:

    We the people

    Why did they start with that?

    A. Because the constitution was wrotten in dosregard of the rules for amending the Articles of Confederation.

    Thats “the people” mentioned in the Secod amendment. Not just states, because, for one thing, they intended to include Vermont.

    Sammy Finkelman (b47846)

  60. I think foreign taxes are deducted from taxes owed.

    Uh, no. There is a form so complex that tax programs won’t deal with it. Among other things, it varies greatly by country and tax treaty.

    Kevin M (21ca15)

  61. 59. Davethulhu (bc6fa6) — 8/21/2019 @ 8:42 pm

    Thus, there would be no reason to sneak in.

    Or to do anything special to qualify your son for U.S. citizenship. For what? So that he might one day become president of the United States?

    (By the way, there’s an opinion that Chester A Arthur wasn’t born in the United States in 1830, but in Canada before. The only reason anyone would have taken a shortcut and skipped naturalization mut have been because he got involved in politics on sort notice.)

    Sammy Finkelman (b47846)

  62. I was trying to make a point

    However invalid.

    But sure, there were no restrictions on immigration, but that did not mean you became a citizen, or could not be ejected for cause. As for practice, consider the Sioux or the Apache. Lots of mixed usage there.

    It also works both ways: if you defend the 14th Amendment to births among immigrants because laws about immigration are wildly different, you run the risk of some judge saying the 14th doesn’t apply BECAUSE the immigration laws are so different.

    Kevin M (21ca15)

  63. They had cannon, and grapeshot, and other indiscriminate killing tools.

    And such weapons were in the Revolutionary era communally owned. When Gen Gage sent his troops to Concord, he was hoping to seize the arms and ammunition belonging not to any individual but to the Massachusetts Provincial Congress.

    Kishnevi (bc20e2)

  64. 61. So what do people actually do?

    If their income is not too high, ptobably ignore the need to file a U.S. tax return.

    Sammy Finkelman (b47846)

  65. 63. If the judge is right wing and not a originalist.

    Sammy Finkelman (b47846)

  66. It’s August and Trump’s into re-runs. The birthright citizenship episode wasn’t a very good episode to start with, I doubt many people will tune in for the re-airing. As much as you might dislike Trump, you have to admit he’s entertaining. If he starts boring us with the same old tired shtick, well, what good is he? He’s going to have to come up with some new material if he wants to keep those ratings up, otherwise the Trump show risks cancellation.

    Jerryskids (702a61)

  67. He’s going to have to come up with some new material if he wants to keep those ratings up, otherwise the Trump show risks cancellation.

    “King of Israel” and “The Chosen One” aren’t fresh enough for you?

    Dave (1bb933)

  68. Dustin,

    Do you think the child of two French nationals, who fly to New York on Tuesday, induce labor on Wednesday, and fly home on Thursday OUGHT to be an American citizen?

    The IRS doesn’t.

    Kevin M (21ca15) — 8/21/2019 @ 8:16 pm

    Obviously I made it very clear that the correct solution to a constitutional amendment I don’t like is another constitutional amendment and not an executive order. Your response is that I must like the amendment?

    At any rate, what the IRS thinks ought to be is a truly bizarre thing to worry about. You don’t want to be in a country where the constitution is not, in fact, a constitution, and is just whatever the hell the president says. No doubt, there are many strained interpretations that will get tons of support from partisans. Wickard and Roe prove as much.

    Dustin (6d7686)

  69. The point about the IRS is that they are sometimes vicious about getting taxes from the offspring of Americans who are born overseas yet have never set foot in America or otherwise acknowledged their citizenship. But they do NOT go after the offspring of foreigners who are born in America. This is a long-standing situation, not something Trump or Obama dreamed up.

    This is ironic because the untaxed people are constitutionally citizens; and the taxed folks — born to Americans overseas — are only citizens by statute.

    Kevin M (21ca15)

  70. Melania’s kid baron better start worrying as his mom was an illegal alien.

    lany (c80f36)

  71. I just believe that citizenship passes from parent to child, not place of birth. This is why the children of American citizens born in foreign countries are deemed natural born citizens. The children of foreign nationals born here are not; they are deemed citizens of their parents country of origin.

    Thus, only the children of natural born or naturalized citizens should be granted birthright citizenship.

    That’s what I believe. Hey, if you want your child to be born American, immigrate legally and become a naturalized citizen. Then your child will be deemed a natural born citizen, no matter where the birth takes place.

    Yeah, “subject to the jurisdiction” originally applied to diplomats and tourists, people who happen to be in the United States but do not intend to remain here or swear allegiance to the Constitution. The jurisdiction of the US is that there is a legal process for immigration and naturalization. Illegal immigrants are not subject to the jurisdiction because they are in violation of it, therefore their children should not be granted birthright citizenship.

    Gawain's Ghost (b25cd1)

  72. Goombahs think the Second Amendment is ridiculous;
    Oranges think the Fourteenth Amendment is ridiculous.
    I think they should all move back to the countries where they have natural born citizenship by descent and no right to keep and bear arms.

    These “ridiculous” Constitutional provisions are what make America America and not some other sh!thole, you chimichanga-eating, MTV-watching, frappuchino-sipping, Charmin-squeezing, Clearasil-slathering, degenerate remnants of wretched refuse!

    Send them back!

    Trump can spend half of the year in Scotland and half of the year in Germany, like Persephone.

    nk (dbc370)

  73. I just believe that citizenship passes from parent to child, not place of birth.

    And this belief was used before the Civil War to deny citizenship to former slaves, since their parents were not citizens (being slaves). This chains forever, of course. It’s generally called the “grandfather clause.”

    This is the EXACT reason they passed the 14th Amendment. So your belief is null and void, having been trumped by Article V.

    Kevin M (21ca15)

  74. 74. That is the exact reason that they passed the 14th amendment — not to give birthright citizenship to people here illegally. Sorry, but GG is correct here if your concern is the intent of the 14th amendment.

    Gryph (08c844)

  75. This is not the 19th century. It is the 21st. We have completely different problems to deal with today.

    Citizenship passes from natural born or naturalized citizen to child, regardless of place of birth. Citizenship does not pass from foreigners to child.

    There is a process: legal immigration and naturalization. Anyone who followed the process would be subject to the jurisdiction of the United States. Anyone who did not is not, and therefore not to be granted birthright citizenship to their children. If the parents are not citizens, then their children are not citizens.

    And don’t talk to me about the Civil War. One of my great-uncles fought in the last battle at the Palmetto Ranch, outside of Brownsville, after Lee has surrendered at Appomattox. He had been drafted by the Confederacy, but surrendered as soon as he could and joined the Union army.

    Your attempt at refutation is ridiculous. You think I’m comparing illegal immigrants to slaves? All I’m saying is that they are not naturalized citizens, and therefore their children are not natural born citizens. They just happened to be born here by parents from another country. That does not define citizenship.

    Gawain's Ghost (b25cd1)

  76. #76 —

    There is a policy debate to be had over birthright citizenship. But, if you want your belief placed into law, you will need to amend the Constitution. Or convince a judge that theose silly 19th century people did not provide for it.

    Appalled (d07ae6)

  77. 77. There is only a policy debate to be had if you wish to ignore the intentions of the 14th amendment’s drafters.

    Gryph (08c844)

  78. Gryph –

    The concept of illegal immigraation really did not exist in the 1870s. The 14th amendment drafters really were not concerned with it. (Now, if you have something showing the contrary, bring it to the argument.)

    Appalled (d07ae6)

  79. 79. It did not. Hence, why it could not have been the drafters’ intention to make the children of illegal immigrants citizens. You’re making my point for me. Birthright citizenship is just another in a long line of examples of giving judges extraconstitutional authority to determine policy.

    Gryph (08c844)

  80. And for those making the argument, “There was no such thing as illegal immigration back then,” let me remind you that control of one’s borders is one of the most elementary aspects of sovereignty. If we owe anyone access to our borders, we might as well not be a sovereign entity at all.

    Gryph (08c844)

  81. Yes, there definitely was illegal immigration the 1870s. Google “Anti-Chinese Acts” for a start.
    Hint: The first 14th Amendment birthright citizenship case was a Chinese-descended person. This conversation the orange is promoting was already had over a Mandarin. Ha-ha.

    If you have nothing better to do after that, google about smallpox and the way we kept people who might have it out of the country. Hint: It was through “legal” immigration, permits to sail, inspections and quarantines.

    After that, you might want to do a little research about human trafficking — the smuggling of various kinds of foreign “contract labor”. But why bother to learn anything when you can just make it up?

    nk (dbc370)

  82. *in* the 1870s

    nk (dbc370)

  83. #50 “The 14th Amendment’s authors never considered a world where you could travel trivially from any place on the planet, give birth, then travel home, all in a few day’s time.”

    The 2nd Amendment’s authors never considered a world where a gun could trivially fire dozens of shots in a matter of seconds.

    Davethulhu (bc6fa6) — 8/21/2019 @ 8:15 pm

    That’s even incorrect.
    https://en.wikipedia.org/wiki/Puckle_gun
    The Puckle gun existed at the time when the Constitution was written… it was even debated by the newly form government to purchase these items for the people (was turned down because it was so expensive).

    whembly (51f28e)

  84. #40

    Colonel Klink (Ret) (6e7a1c) — 8/21/2019 @ 6:32 pm

    I think it’s much simpler.

    Just give any child born to two parents without legal status diplomatic immunity until they reach the age of 1 minute.

    Bam. Done.

    Dave (1bb933) — 8/21/2019 @ 6:40 pm

    LOL… that’s some interesting rules lawyering.

    Can you force diplomatic immunity on someone??

    whembly (51f28e)

  85. No. Their parent country has to issue them the “diploma” and they have to present it to you for acceptance.

    nk (dbc370)

  86. — “I’m sorry, Natasha, I cannot be here while you are having the baby. I have to go rob a couple of banks for to pay the doctor and the hospital and a little extra to fly back home.”
    — “Boris darlink, no! They will send you to prison.”
    — “Natasha, you forget we have diplomatic immunity?”

    nk (dbc370)

  87. I want to go back to what the writers of the 14th amendment meant by “subject to the jurisdiction thereof“…

    Has there ever been an explicit holding by SCOTUS that the children of illegal aliens are automatically accorded birthright citizenship??? I not seeing it anywhere…

    In the case of Wong Kim Ark (1898), the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. This is an important distinction… This was a 5–4 opinion which provoked the dissent of Chief Justice Melville Fuller, who argued that the 14th Amendment did not in fact adopt the common-law understanding of birthright citizenship.

    So, unless I’m missing something else, there’s no determination of what happens to illegal aliens’ children. (if you disagree, please do provide additional info).

    Keep in mind during this time, there was almost unanimous agreement among its framers that the amendment did not extend citizenship to Indians. Over the years there were some hodge-podge laws that moved the tribes under the US jurisdiction. Then, in 1923 Indian Citizenship Act, there was a universal offer to all tribes. Any Indian who consented could become a citizen.

    Thus Congress used its legislative authority under Section 5 of the 14th Am. to determine who was under the jurisdiction of the U.S.

    Congress could make a similar determination today, based on this legislative precedent, that children born in the U.S. to illegal aliens ARE or ARE NOT subject to the jurisdiction of the United States. A constitutional amendment is no more required today than it was in 1923.

    Since it’s ambiguous, even an executive order from the POTUS could change this policy (3 co-equal branches ya’ll). However, executive orders is fraught with perils as it is at the mercy of the next administration. Better for Congress to pass a law.

    Furthermore, the intent was plain –

    Congressional Globe, 39th Cong., 1st Sess. (1866), 2890 (Sen. Howard, authoring the 14th amendment):
    Howard said,

    …except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

    Illegal aliens fits the “foreigners” and “aliens” moreso than anything else.

    So, because Congress has passed laws to determine who’s under the jurisdiction thereof, with respect to the 14th amendment, Congress clearly has this ability to address children born of illegal aliens. Trump’s proposed Executive Order to prohibit birthright citizenship to illegal alien would be fought in courts till SCOTUS makes a ruling… and it’s not clear which way SCOTUS would rule.

    Furthermore, I would like to add that no one is advocating that those who have been granted birthright citizenship in the past be stripped of their citizenship. Equal protection considerations as well as plethora of other existing laws that citizenship once granted is vested and cannot be revoked. Any proposal to end birthright citizenship would obviously be prospective only….that is “from this point forward”.

    whembly (fd57f6)

  88. Nk,

    Writing without google is a commenter’s privilege, but I will insist on my point. The 14th amendment dates from 1868, and the first of the anti-Chinese acts was 1875. The case that is the source of the idea of birthright citizenship concerned the child of legal immigrants.

    There is nothing in the history of the 14th amendment directly addressing children of illegal immigrants and excepting them from the protections of the 14th.

    Appalled (708b06)

  89. Legal immigrants?

    That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid.

    That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China.

    That during all the time of their said residence in the United States as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China.

    nk (dbc370)

  90. #90

    Legal immigrants?

    That, at the time of his said birth, his mother and father were domiciled residents of the United States, and had established and enjoyed a permanent domicil and residence therein at said city and county of San Francisco, State aforesaid.

    That said mother and father of said Wong Kim Ark continued to reside and remain in the United States until the year 1890, when they departed for China.

    That during all the time of their said residence in the United States as domiciled residents therein, the said mother and father of said Wong Kim Ark were engaged in the prosecution of business, and were never engaged in any diplomatic or official capacity under the Emperor of China.

    nk (dbc370) — 8/22/2019 @ 9:53 am

    Correct.

    The US government authorized the parents’ presence by granting them full legal-resident status via the treaty at the time (the name escapes me at the moment), so their US born child was deemed a birthright citizen.

    That is distinctly different than an illegal alien who has NO right to be in the US.

    whembly (fd57f6)

  91. If you have nothing better to do after that, google about smallpox and the way we kept people who might have it out of the country. Hint: It was through “legal” immigration, permits to sail, inspections and quarantines.

    nk (dbc370) — 8/22/2019 @ 8:55 am

    The CDC advises that “in the United States, most of the measles cases result from international travel” — either from unvaccinated Americans who travel outside the US, get sick, and bring the disease home OR from “unvaccinated travelers” bringing measles to the U.S.

    Texas has had measles outbreaks in 2013-2014 and now again in 2018-2019. As shown in the map at the second link, the outbreaks are centered on the El Paso and South Texas areas — the border areas where the caravans of migrants come. The outbreaks have not been in the low vaccine compliance areas in Austin and Dallas that the outrage story of the day is proclaiming will be the source of measles outbreaks.

    DRJ (15874d)

  92. Trump should just issue an executive order. The 9th circuit will then block it. Then issue another Exec order on Immigration. Put pressure on Roberts so that everyone knows he’s complicit in the whole Judge war on Trump.

    rcocean (1a839e)

  93. Also per the CDC:

    “No, it is not immigrants or refugees causing these outbreaks,” Rowland said. “It has to do with travel and people who are not vaccinated or under-vaccinated. It has nothing to do with illegal immigrants.”

    Paul Montagu (a2342d)

  94. That is interesting since they haven’t identified the index case. They don’t know who it is but they know who it isn’t, right?

    DRJ (15874d)

  95. Legal immigrants and refugees almost certainly end up vaccinated. But illegal immigrants? They do not travel, they are not unvaccinated, they are not under-vaccinated?

    nk (dbc370)

  96. Is it right to assume that all legal immigrants have been vaccinated and that all illegal immigrants have not? To me, no.

    Paul Montagu (a2342d)

  97. The 2013 measles outbreak in the Dallas area was traced to a traveler — meaning someone who is unvaccinated or whose vaccination has lapsed, American or not American. It may have spread because of low vaccine compliance, although outbreaks often affect infants the most and they are too young to gave had all their shots.

    These issues present several problems but we can address them if the medical community would embrace titer testing options as well as vaccines. People who have concerns about vaccines or whose vaccines may no longer be effective can do titer testing, and we will all be safer.

    DRJ (15874d)

  98. Legal immigrants are required to have medical exams and current proof of vaccinations before they can get green cards.

    DRJ (15874d)

  99. Yup.

    nk (dbc370)

  100. The thing is that I am on Trump’s side (or he’s on my side, either way) on border security. But this birthright/anchor baby babble (yes, babble without a Constitutional amendment) has nothing to do with border security. It’s just red meat to the rednecks.

    nk (dbc370)

  101. #93 —

    This is not the issue to litigate as part of a “judicial war on Trump”. Though people tend to talk of this issue as solely a Constitutional matter, there are actual immigration laws, which can’t be unilaterally amended by an Executive Order. The decisions you are likely to get from an Executive Order are decisions that Trump does not have the power to legislate this issue — only Congress does. And the bedrock constitutional issue never gets reached. (You may also get the Supremes refusing to hear the very limited case from the 9th Circuit.)

    Appalled (d07ae6)

  102. Paul, I agree there may be tourists traveling into America who are not vaccinated. We know that has happened in 2007 and in 2015. I am not trying to quibble. I guess we could call tourists “legal immigrants” but they are different to me.

    DRJ (15874d)

  103. They’re visitors. An immigrant is a person who intends to permanently reside.

    nk (dbc370)

  104. Latin America is vaccinated to the same degree as it is over-treated with anti-biotics (which in turn worsens infections because of the mutations for resistance). Yes, that likelihood decreases once you account for rural indigenous and OTM/OTCA uninvited.

    urbanleftbehind (5eecdb)

  105. I only disagree because I care, DRJ. 😉

    Paul Montagu (a2342d)

  106. According to this report, detainees aren’t always vaccinated before they get here, and they are bringing or spreading disease. They can’t help it if they couldn’t get/afford vaccines in their countries of origin.

    DRJ (15874d)

  107. They can help it by staying in their home countries. Just one more reason why this invasion needs to be stopped.

    As if we needed another.

    Colonel Haiku (2601c0)

  108. Also, all unaccompanied minor detainees are vaccinated (except for the flu vaccine) at detention centers because we don’t know their status but the outbreaks in the centers suggest few are vaccinated. Most of the media is focusing on the Administration’s refusal to give flu vaccines but we have no way to know what kind of flu vaccine they need or how healthy they are. Giving a flu vaccine to someone who may be sick is contraindicated and unwise.

    DRJ (15874d)

  109. 99… it’s all part and parcel of the Rule of Law. Common sense… so uncommon these days.

    Colonel Haiku (2601c0)

  110. … over-treated with anti-biotics (which in turn worsens infections because of the mutations for resistance)

    Our doctors at the NIH say they aren’t sure this is true. It could be but they don’t really know. They told me patients with rheumatic fever are typically treated with penicillin for 5 years, and some for decades, with no problems. FWIW.

    DRJ (15874d)

  111. Coming to a last weekday open in December at a Federal office complex × a million, if anything actually comes from this proposal:

    http://news.yahoo.com/judge-hurries-u-naturalization-pregnant-193453132.html

    urbanleftbehind (255d90)

  112. I think thet=y have blamed overuse of antibiotics on people for drug resistance, but the big factor was feeding them to animals. You get mutations when the infection is chronic. This can happen with tuberculosis and this can happen in farms. They used to give them to animals to help them consume less food, because if an animal is fighting an infection, even a low grade infection, it uses up nutrients that could otherwise go into gaining weight, muscle etc.

    Sammy Finkelman (b47846)

  113. The 14th Amendment is just that – an amendment.
    How can it possibly be as important as an EXECUTIVE ORDER from the president?

    John B Boddie (11ac33)

  114. you understand they don’t want any immigration enforcement:

    https://www.kcur.org/post/kansas-judge-throws-out-convictions-undocumented-immigrants-ruling-favor-free-speech

    oh he’s the brother of the head of la raza,

    narciso (d1f714)


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