The example works IN COMPLETELY THE OPPOSITE DIRECTION that you’re suggesting.
The case you’re citing is universally viewed as a travesty and one of the low points of our court system. If this EO is signed, and the Solicitor General gets to argue this in front of the Supreme Court, do you believe that he will cite Korematsu in his briefs as precedent for the President’s actions?
I guess I don’t understand your argument. Is it:
<poster> EOs can’t overrule the Constitution
<me> It happened with EO 9066 and was upheld by SCOTUS
<you> Yeah well that ruling sucked so it’ll never happen again.
And more to your point the Slaughterhouse Cases is universally agreed to be a wrong decision but under stare decisis is still used as precedent in rulings.
Abraham Lincoln overturned habeas corpus by executive order, too. Not to mention the Emancipation Proclamation, which said a lot but did nothing.
I too thought this was the thrust of the argument.
When the original amendment was passed, do you think the intention by lawmakers was for illegal immigrants and tourist from other countries to have babies here and automatically become citizens?
No, it’s more like:
<poster> EO’s can’t overrule the Constitution
<you> Look at this wrongly decided case that has been thoroughly repudiated by literally everyone involved!
<me> Are you listening to yourself?
Look, if you want to say that Korematsu was correctly decided, just say it. Otherwise, it is just a twist of this argument:
<poster> Segregation in schools is illegal.
<you> Oh yeah? What about Plessy v Ferguson?
<me> Are you listening to yourself?
There was no such thing as illegal and legal immigration when the amendment passed. That concept was invented when we decided we didn’t like the Chinese any more and tried to exclude them. But they did understand that it would probably apply to immigrants who did not intend to remain in the US, though there was a debate about it at the time.
Yes. Illegal immigration might not have been a thing, but were plenty of tourists (you had to be rich and adventurous to travel around the world for entertainment, but there were plenty of rich Europeans who did just that) and other temporary visitors to the US in the 1860s, the fact they were not specifically excluded shows its crafters were fine with their children becoming citizens.
I’m not so sure. I believe at the time (and correct me if I am wrong) that most countries did not recognize dual-citizenship so if a woman came from the UK and had a baby that the baby while legally a US citizen would reside in and choose to be a citizen of the UK so why worry about it*.
*Not sure of the law at the time but court cases that affirm dual-citizenship as a right that cannot be taken away by the US government have only occurred in the last 60 years.
That doesn’t change the fact that it would be plain to the crafters of the 14th amendment that it would mean baby born to a temporary visitor from Canada, Europe or Mexico, etc would be a US citizen. That is not a weird inconceivable occurrence in 1968. If they had wanted to explicitly exclude those children from US citizenship they would have added language to that effect.
Perhaps belaboring a point, but what that shows is how unlikely it is an executive order limiting birth right citizenship could pass court muster. It tends to argue against what a lot of the posts have been saying, which is that the amendment itself clearly prohibits any such limitation. But it’s hard to show that without citing statutes passed by Congress defining the terms in the amendment. Courts could decide, or not, that Congress is prohibited from defining the terms any other way in a different statute. That’s non-obvious IMO.
Nor would it be equivalent necessarily to certain laws or policies the USSC did uphold (like Japanese American internment, Plessy v Ferguson etc). I don’t see how it’s against basic US principals to say you are not necessarily a citizen if born here, if it’s specific exclusions Congress decides on, and not retroactive. Again, nobody says the kids of foreign military personnel on duty occupying part of the US they’d conquered would automatically have to be citizens according to ‘basic human decency’ nor, more realistically, foreign diplomat’s kids. I don’t buy the pearl clutching argument, for lack of a better term, that a non-retroactive Congressional statute defining ‘under the jurisdiction’ as ‘legally in the country’ and seeking permanent residency’ (not birth tourists) would violate any moral principal on par with the issues in the past racial discrimination cases mentioned.
Back to the practical, the point that the amendment didn’t specifically exclude particular cases doesn’t mean Congress has no authority to define terms in implementing an amendment. So just pointing to a lack of a long text like the statutes in the amendment itself doesn’t invalidate the statutes. The existing statute, or a new statute Congress might write.
Again, I would guess that assuming Trump really intends to write such an EO (subject to doubt itself) the overwhelming likelihood would be a court decision saying ‘you can’t do that because it’s Congress’ prerogative’ and not getting into whether the substance violated the amendment. Though that wouldn’t gtee that a similar Congressional statute would pass muster. Just the legal hierarchy would be ‘violates separation of powers, therefore stop right there’. In that sense it can be compare to some Obama overreaches, even if the topic and substance is different, and/or more defensible from a certain political POV.
Executive Order for Internment of Japanese-Americans upheld by SCOTUS.
“But we were at war - things are different now.”
“Really?”, said I. “We are at war right now.”
“What?, that’s crazy talk Steve.”
“Nope, we still have just an armistice on the Korean peninsula.”
“Crazy talk, Steve. You can’t possibly use that as a pretext for executive actions.”
“Really? Nixon used the Korean armistice in his arguments for wage and price controls. Other presidents since, in both parties, have used the, ‘it’s only an armistice so we are still at war’ to justify executive imposition of tariffs.” *
“No Steve, SCOTUS would never buy the, ‘We’re at war’, argument again. We’ve learned our lesson.”
“Bullshit. My example of the Patriot Act (post 127) destroying all individual protections in the constitution negates that idea that SCOTUS will protect the constitution.”
“But that was terrorism; we were under attack. It saved American lives.”**
“More BS. The act was used against American citizens as well as <suspected> terrorists.” ---- “Don’t think Trump and his handlers are on the ‘war’ bandwagon? The big lies and conspiracy theories are already out there. It’s an ‘invasion’. ‘Armed thugs/violence’. ‘ISIS terrorists are mixed in with them’, ‘It’s middle easterners all the way down’. ‘We have to send troops’***.”
*The state of war along with a series of congressional power giveaways.
**Of course, we can’t tell you about that for security reason, but trust us.
***I’m sure we already sent troops to secure the border. I could be wrong, perhaps they already left due to boredom.
Good point…I admit, I hadn’t thought of it that way, though I see others have also made this point in the thread. I’m dense sometimes so appreciate you walking me through it.
All Trump has to do is to gum up the voting booths long enough to win whatever election he is trying to win. By the time the Supreme Court rules the Executive order Unconstitutional, the election will be over and no one will demand a re-vote to allow all the people Trump had banned a chance to vote.
Look at the Bush election and Florida. By the time the Courts got that fiasco settled, Bush was in office and could not be removed for an honest election.
I’m glad griffin1977’s post precedes mine because, while reading through this thread, I keep on thinking about Bruce Lee.
Now, admittedly, this is from a dramatization of a third-party semi-biography so veracity and even the interpretations of the key characters are suspect. But here goes anyway:
Early in the movie Dragon, (loosely) based on the memoirs of Bruce Lee’s former wife, we see Jun-Fan Lee’s father telling young Jun-Fan his scheme for helping him evade police problems (for getting into yet another fight). His plan was to send Jun-Fan to the USA because he was born there during the dad’s brief time there as part of the Peking Opera company that was touring. He even gave the newborn a very American-sounding name: Bruce.
So, as the movie reveals, young Bruce heads to the USA, armed with his birth certificate that shows he was born on US soil in a US hospital.
So, was the dad correct? He was a performer, not a lawyer – and certainly not any kind of expert in US Immigration Law. But did the USA “have to let [him] in” because jus soli made him a US Citizen?
[I suppose the point became moot two years after Bruce married Linda…]
But that was the 1960’s, well after Wong Kim Ark and even the Japanese Internment orders [but well before the USA admitted that was a shitty thing to do and started reparations payments].
Just wondering how/if that particular case fits into this controversy.
–G?
Rednecks?!
Why are we letting ANYONE play with anti-matter!?!
It’s not a toy!
I should point out that date is a typo. The 14th amendment was ratified in 1868 not 1968!
It expressly was not, In fact, it’s author stated it would NOT do that. This is from the Tucker Carson show, but the quote can be found easily via Google.
Whatever the Senator said at the time, that’s now what the Amendment says. Period.
Yes. I’ve heard a number of people whining about whites becoming the minority. They’re already a minority in one state and guess what. The state works rather well. It’s not the color of skin, it’s the character, etc. And, of course, it’s the idea of American values. Well, it used to be, but Trump and his supporters have flushed that concept down long ago.
In Germany, where I was born, the only things the birth certificate (Geburtsurkunde) proved were: (a) the fact of birth, (b) the date and time of birth, (c) the place of birth, (d) names of my parents. I don’t have the thing handy now, but it may state the name of the delivering doctor. I do know it was signed by a government official. That does not prove citizenship there as neither of my parents was German (although my mother’s grandfather immigrated to the US from the very city in which I was born). Since Mom died last year, and Dad this year, I rather doubt there’d be any way to agitate for me to gain citizenship in the Federal Republic of Germany at this late date.
In South Korea, it used to be the case that the father (or grandfather) would report the birth on the family register maintained by the government. That would grant citizenship even if the child was born overseas. The family register system was abolished effective 1 January 2008, so South Korea now uses a certificate system for deaths, births, marriages, divorces, etc. I have not seen any of the certificates yet. Oddly enough, many people I know in South Korea are unaware that the family register is no longer updated.
Great points. And it’s a great description of the apartheid that Trump and his supporters want. (You know they don’t actually want illegal workers getting paid under the minimum wage to be deported, right?) Oh, speaking of apartheid, look at how well that worked for South Africa.
Oh, I have no doubt he’ll pull this stunt. His supporters froth like ravenous wolves whenever he spews bigotry. Look at their reaction to his anti-Muslim comments. He came through for his supporters but “caved” when the courts dictated he was being discriminatory with his Muslim ban, and then amended it. That right there is what’s gotten a number of them completely miffed with the courts. He’ll sign it either the day before the election or shortly afterwards. And he’ll moan to high heaven about it getting tossed by the judiciary.
This proposed executive order doesn’t really have anything to do with the actual issue that has Trump and his supporters agitated. The migrants in the caravan are not seeking employment; they’re cool with that. At least the rich supporters are. IIRC, the folks in the caravan have stated they’re going to specifically request asylum in the US. That means they’re going to request a visa upon arrival. Once they’re granted asylum, of course, they’ll be able to legally work–and get paid the legal wage. Oh, and it means more people of a dusky hue will be living in the country legally.
Oh, I’m not sure where to put this in this long(ish) post, so I’ll just put it at the end:
the Supreme Court recently stated this regarding the wartime Korematsu decision:
There are 5 states and DC. Hawaii, California, Nevada, Texas and New Mexico. Whether they work well or not is probably a matter of opinion. My guess is that the people that think Texas works well do not think that California does and vice versa. I think we can all agree that DC is screwed up, but that’s more a product of their weird government than their demographics.
Economically, Texas and California are both rich. Nevada and New Mexico are both poor and Hawaii is in the middle.
On happiness indexes, Hawaii tends to score very happy, Nevada scores very sad, New Mexico, California and Texas tend to be somewhere in the middle.
Basically, being minority-majority doesn’t seem to really say much of anything about your state. It’s just another way to be.