Not buying this argument. There have not been cases explicitly saying, for example, the US president can’t criminalize the practice of Islam (there have been related cases defining how far the 1st Amendment rights to freedom of religion go, but not specifically that) . But that doesn’t mean it wouldn’t be 100% completely unambiguously unconstitutional for the president to be allowed to make an executive order that does that. Same here.
The “jurisdiction” loop hole is clearly irrelevant. No one can possibly claim the US government doesn’t have “jurisdiction” over illegal immigrants, any more than they don’t have jurisdiction over people who are guilty of shoplifting, DUI or any other criminal infraction. You might as well say the 14th amendment only applies to people who have three sets of arms.
They could be made prisoners of war, but I don’t think they could be “arrested” in the usual sense and made subject to the normal criminal process. They might be guilty of war crimes, and able to be tried for that, but I think it (AFAIK) would be its own war crime for the USA to try to sanction them for criminal violations of immigration law.
Ok. Let’s assume that’s true, now change the facts. Instead of the regular Canadian army, it is a splinter branch of the Army who is not authorized by the government of Canada to invade. They are sick and tired of the people of Niagara Falls, NY making fun of them for pronouncing the word “about” as “aboot.” They invade for that reason, plus they consider themselves the “true” Canadian government and want both falls and to spread universal health care and cold weather.
They invade with the same amount of people and take over Niagara Falls, NY in the same manner. The U.S. does not respond with violence, but negotiates with the Canadian government. Or, change these facts in any manner so that the laws of war do not apply.
Are any children born natural born U.S. citizens under the 14th amendment?
That is an “edge case” which you can find on any fundamental human right (hence the whole “shouting fire in a crowded theater” thing). I’d say most likely the US would be very keen to refuse any claim Canada had on the invaded territory, which admitting they did not have jurisdiction over the occupied land would help. So they would be US citizens.
Doesn’t change the answer to the OP. “No absolutely not”. Any other answer makes the US constitution a “non-binding list of polite suggestions to the supreme leader”, not a constitution.
But the thread title misstates the issue. I will concede that most constitutional scholars agree that an illegal immigrant birth on American soil confers natural born citizenship status on the child. Point conceded.
However, there is a cognizable argument on the other side. To say that the President is “overruling” the Constitution with an executive order is very much overstating the case, as I believe, respectfully, you are.
You waive away the “subject to the jurisdiction of” portion of the clause to make it almost meaningless. I am in the middle on this issue, have not seen compelling arguments on either side to convince me.
To say that “subject to the jurisdiction of” means that the U.S. can enforce its laws upon the person is unsupported by text and history. The U.S. damned well enforced its will and laws over the American Indians, and even after the conquest, they were not held to be citizens until Congress passed a law. Contrary to popular belief, a diplomat can get a parking ticket and his immunity is only limited. Both of those groups are clearly not part of the 14th Amendment citizenship clause. Foreign invaders likewise were not part of the clause.
Causing the major interpretation problem at hand is the fact that “illegal immigration” was an unknown and (snicker) foreign concept to the drafters of the 14th Amendment. There simply was no such thing.
So how should the courts classify someone who Congress has said is not allowed to be here, is here anyways, yet tries to take advantage of our laws by conferring citizenship on his/her child? It’s an open question, and the OP’s title is very misleading.
Well, the good ol’ Patriot Act certainly chopped much of the 5th, 6th, 8th and 1st if somebody says, “poof, you’re a terrorist.” AND it didn’t matter if you were a citizen or not; off you went to some black site - no charges, no witnesses, lawyer, trial, or that pesky problem of punishment. Waterboarding anyone?
Spain is mainly jus sanguinis (we also have several procedures for different right of return cases), and what happens in hospitals is that the hospital records the birth as a medical procedure and opens the child’s medical history. If either of the baby’s parents has a Spanish Seguridad Social number, the child is automatically a beneficiary of SSS and so the birth gets reported to Tesorería de la Seguridad Social and to the regional Seguridad Social so records can be properly updated (batch jobs, the parents don’t need to do anything but provide their own SSS info). If someone needs a certificate that the birth happened, they can get it from TSS or from the hospital; it doesn’t indicate anything about nationality of either baby or parents.
The birth then needs to be recorded either at a Civil Registry (baby’s a Spanish citizen) or Consular Office (baby’s not a Spanish citizen). If at this point the parent(s) already had a Libro de Familia (lit. “family book”), it gets updated with the new child; if not, they get one.
If you’re a Spanish citizen you can get a Fe de Vida from the Civil Registry indicating that as far as they know you were born on such and such date and place, naturalization info if applicable, change of name info if applicable and that so far as they know you’re still alive.
One doesn’t have to necessarily agree with an argument about the Constitution personally to recognize there is room for courts to find contrary to that opinion. I think that’s the case here.
And it can illustrated by the major weaknesses in your analogy.
One element is original intent. The entire idea of the first amendment’s reference to religion is to prevent govt preference of one sect over another. It can be debated whether there was any intent to have ‘separation of church and state’ as in the modern idea of removing religious references from public life. But it was clearly understood at the time to be aimed at preventing different sects being advantaged/disadvantaged in the eyes of the law, and no reason to think that was originally intended to be limited to Christianity as opposed to, at least, monotheistic religions of the book in general. If not there would presumably have been at least some discussion of excluding Judaism, since there were at least a small recognizable Jewish community in the US at the time (if perhaps no recognizable Muslim community), but there was no such discussion.
Whereas the original intent of the 14th amendment citizenship clause was clearly mainly aimed at preventing laws denying citizenship to the freed people. Some proponents even denied at the time it was to do with immigrants. Courts nevertheless later found it related to the children of immigrants in at least some cases, but it would be different if the clause were originally written to deal with the children of immigrants, which it basically was not.
Then, the hypothetical case you posit, EO banning Islam, has been very specifically dealt with even in very recent cases. The fact remains that the citizenship clause of the 14th amendment has not been. It’s generally recognized it would not apply to the children of diplomats if challenged, or more hypothetically invading foreign military personnel. It does apply to the children of legal permanent residents (Wong Kim Ark).
Saying it ‘clearly’ applies to the children of illegal residents is just expressing an opinion. It’s the same as common statements that eg the 2nd amendment ‘clearly’ refers just to the National Guard, or alternatively that it ‘clearly’ prohibits particular strict gun laws in particular states, or that the 14th amendment ‘clearly’ bans race preferences in college admission or hiring based on ‘equal protection’. Courts haven’t found so, categorically, yet, at least.
So the jurisdiction argument is not a ‘loophole’ and it’s not 100% clear a narrowly crafted Congressional statute disallowing automatic citizenship for future children or illegal residents or ‘birth tourists’ would be found to violate the 14th amendment. You can handicap it as likely, but you’d have to see. It’s much more likely though that an EO doing the same thing would be thrown out because courts found it Congress’s prerogative to write immigration laws, and this would be writing an immigration law.
But by that standard loads of laws that have been upheld by the Supreme Court have ‘nullified the Constitution’. The USSC now would find the laws upheld under Plessy v Feguson and many other cases to be unconstitutional, even without intervening amendments. So EO or state or federal law. Many have ‘nullified the Constitution’ according to some, or even currently predominant, interpretations of what the Constitution actually says or means.
The point I’m trying to emphasize is distinguishing what a given persons thinks should be rejected as unconstitutional, v the probability of the USSC actually finding it so. Those two things get muddled together a lot in debates like this.
I think an EO restricting birthright citizen would highly likely be thrown out by USSC in a decision which said it was Congress’s prerogative to take such an action and wouldn’t even proceed to stating the court’s opinion on the underlying issue. I think a carefully constructed Congressional statute stating that ‘under the jurisdiction’ was being more narrowly construed to exclude ‘birth tourists’ with tickets back to their home country, for example, or perhaps illegal residents, would have some chance of passing muster with today’s actual USSC. In any case saying ‘that’s still unconstitutional’ is an opinion, not a statement of fact. The person saying so means ‘should be IMO’, not ‘is’.
What is the recourse if the President signs such an Executive Order and Congress does nothing more than publicly feel bad about it? Is the Supreme Court forced to rule on the matter(if an interested party can be found to bring it to them)?
Even that example (which most people agree is one of the most glaring examples of the failure of the US constitution to prevent terrible abuses of human rights*) is NOT comparable to what the POTUS is suggesting. There is no amendment that says “The government shall not force its citizens to camps based on what race they are”. Any reasonable person would interpret that as flowing from the amendments of the bill of rights (but clearly unreasonable opinions prevailed during wartime).
This is not that, there is an amendment to the constitution that clearly unambiguously says X, if the POTUS can overrule X by executive order, then the constitution is not a constitution, its just a some polite advice for absolute rulers.
The whole “jurisdiction” thing is just so much smoke. Yeah if we re-interpret “jurisdiction” to mean “just kidding this amendment is just an elaborate hoax feel free to ignore it” then yeah it makes doing this OK. Otherwise not.
While most sane, non-sociopaths would think this. It was explicitly listed as a shining example to follow by Trump and his supporters during the campaign, so none of what followed should surprise anyone.
I think it’s an absolute lock that someone will have standing to sue. Something like 5% of births in the U.S. are to non-citizens. (That’s a very rough swag based on some article I read a long time ago.)
Yes, well first a lower court rules. That will likely result in an injunction, that will stay in place while the case makes it way up through the court hierarchy to the supreme court.