Even the most fundamental, cast-iron constitutionally guaranteed human rights have “penumbra”, for example the famous “shouting fire in a crowded theater” example.
This is not a penumbra or an edge case, it is a fundamental question of “is the constitution really a constitution or just some polite suggestions for absolute rulers to consider if they see fit”. For all the screaming about the constitution from the right we’ve heard over the Obama years you would THINK Obama had decided to write an EO explicitly saying “No one has any right to bear arms anymore”. But he didn’t do that, because it would be fundamentally unconstitutional. If he had suggested such a thing there would blood running in the streets (literal actual blood).
The fact there is not a peep out of the right when Trump suggested this, shows all the shouting about the constitution from them was just so much BS, they don’t give a shit about the constitution.
No, millennia of tradition is not what established law means. Established law is things like the Constitution, statutes enacted by Congress, and prior court decisions. These have all established how our laws are enacted.
Laws against abortion and same-sex marriages were brought before the Supreme Court for them to decide on their constitutionality. That’s the role of the Supreme Court as written in the Constitution.
If a President had simply declared that he was going to legalize abortions or same-sex marriages by an Executive Order after laws had been enacted that banned it or the courts had upheld those laws, that would have been unconstitutional. And it’s unconstitutional if President Trump decides he’s going to repeal birthright citizenship by an Executive Order.
But to your point, there has been no Supreme Court ruling regarding birthright citizenship for children of people in the country illegally. Many scholars dispute the idea and it remains an open question, although again, the majority seems to have the better argument.
It would be like saying Obama “overruled” the Constitution by making recess appointments when the Senate was in pro-forma session. When the Court later ruled he could not do that, he stopped. Nobody claimed that he attempted to violate the Constitution. The thread title is misleading.
That’s not how law works. By that definition—the ability to cite a factual distinction irrelevant to the reasoning of a decision—there is never established law on anything.
That would be a valid comparison IF there was a amendment that explicitly said that “federal appointments cannot be made while the senate is in pro-forma session”. But there isn’t so its not.
There would be no more blatant violation of the constitution than the president attempting to revoke an amendment to the constitution by executive order.
And this is what Trump is threatening to do, it would (in the unlikely event he actually tries it) sure be stuck down by all the judges of the supreme court. But the act of doing it (and the threatening it) would have weakened the constitutional checks and balances that protect our democracy.
Obligatory nitpick: The principle of judicial review is not, in fact, explicitly stated in the Constitution. It was established in Marbury v. Madison (1803).
I’m not sure that the factual distinction was irrelevant to the holding. Wong Kim Ark made much that the Chinese family was in the country legally AND there were dissents. If they snuck in illegally would it have made a difference? That is the unsettled law. Plus, the decision was in 1898, one year after Plessy v. Ferguson. I’m not sure how much stare decisis effect to give that decision.
But I agree with you that facts are always different, but the legal/illegal distinction makes a difference in a whole bunch of law.
You keep repeating yourself that it is a clear and obvious violation of the Constitution. You do not acknowledge that there are legal scholars who disagree with you. A poster in this thread can point out the disagreement, and you respond, “But the language is plain!”
It may be. If I had to vote today, I would side with you. I think it’s real close, but I’m willing to hear arguments. That’s up to the Court and not your opinion or mine.
Again, it would be like Obama saying, “It’s so obvious! The Senate is in recess! They are conducting no business, just gaveling in and out. How is that not a recess? You guys are idiots. The Constitution is plain.”
Many times I read a law and think it is plain and then read a court case that says it isn’t plain. I guess that’s why neither you nor I are judges. It has to play out first.
The thing about Wong Kim Ark is that Chinese were banned from immigration into the uSA at that time. "That the said Wong Kim Ark is not entitled to land in the United States, or to be or remain therein, because he does not belong to any of the privileged classes enumerated in any of the acts of Congress, known as the Chinese Exclusion Acts, [li] which would exempt him from the class or classes which are especially excluded from the United States by the provisions of the said acts."[/li]
So he was a illegal immigrant .
That was the government’s contention. However his parents lived here legally prior to the Chinese Exclusion Acts, and Wong Kim Ark was born here to legal permanent resident parents. He left the U.S., went to China briefly, and was detained coming back into the country as an illegal immigrant. He claimed he was a citizen by virtue of his birth in the U.S. He won.
Would he have won had his parents been here illegally? That’s the open question.
“I can find a legal scholar to take position X” should be, in this context, treated much the way “I can find a doctor to take the position that vaccines should be banned” - the most interesting part about it is the horrifying realization that someone might take the quack seriously on anything else. Perhaps the better comparison is to young earth creationism. You can find a YEC geologist (Andrew Snelling, specifically), but this says more about his qualifications than about his conclusions, and we can hazard a guess that he holds that opinion for less-than-honest reasons. And to spell it out: yes, I’m calling it - many of the people against birthright citizenship are against it because they support white nationalism.
Yeah you can find scholars who believe you can redefine “jurisdiction” to mean whatever you want to me mean, and so the 14th amendment is meaningless (you can find “scholars” who would do the same with words like “speech”, “freedom”, “religion” and “shall” for the other amendments). That is as Budget Playe Cadet says, like finding a geologist who believes the world was created 6000 years ago. It doesn’t make it a reasonable position.
When the constitution says X, clearly and unambiguously, the POTUS saying “I will issue an executive order to end X” is the president threatening to revoke an amendment of the constitution by executive order. It is as blatantly unconstitutional an action as is it possible to get.
No it would not be like that at all. He just used his clearly defined constitutional right to appoint a judge during senate. It would have been analogous if instead he’d said “I am going to issue executive order ending the requirement that the senate must give Advice and Consent on my appointments”
It is not at all like that. I have raised some concerns in this thread that STTJ does not simply mean that the person could be arrested or detained. As I said, murder of a U.S. national anywhere in the world can be punished in our courts. Does that mean that every single person in the world, except for diplomats and their families, are STTJ of the United States?
And again, as I said, I think your side has the better argument, but once again those on the left want to argue that ANY contrary position to leftist ideology is unreasonable, racist, and a reason to keep brown people out of the country. Keep debating this way and watch the divide continue.
The people on the left have had to put up with eight years of people on the right screaming “Ah!!! Tyranny! Why do you hate the constitution! Why are you wiping your feet on the constitution! The framers of the constitution are rolling in their grave! Ignoring the constitution like this will doom us to dictatorship! Constitution! Constitution! CONSTITUTION!!!” Whenever Obama so much as opened his mouth.
Now a GOP president has proposed the most blatant cut-and-dried unconstitutional action imaginable, revoking an amendment of the constitution by executive order. And those same voices are either silent or actively shouting their encouragement.
No mealy mouthed redefining what the word “jurisdiction” means can get around that. Birthright citizenship is right there in the 14th, its not implied, or a reasonable interpretation of the text, its it literally what the text says. If are your are issuing an executive order to “end birthright citizenship” you are revoking the 14th amendment.
The only conclusion you can draw from this is all that screaming about the constitution during the Obama era was just a convenient ruse by people who really don’t give two craps about the constitution.
So let’s say the executive order goes through. “Natural born citizen” is not defined in the Constitution. Does that mean, if the Democrats take control of Congress at some point, they can change the law to say “Donald Trump is not a US citizen”?
But yeah, outside of a universe where Trump became El Jefe, an executive order would directly contradict the 14th.
Also
“John Marshall has made his decision; now let him enforce it!”