On “Meet The Press” this morning Trump said that “birthright citizenship” will most definitely end, despite the fact that it is constitutionally guaranteed by the 14th Amendment. https://www.politico.com/news/2024/12/08/trump-end-birthright-citizenship-00193184
“We’re going to have to get it changed. We’ll maybe have to go back to the people,” Trump said in an interview with NBC’s Kristen Welker on that aired Sunday on NBC’s “Meet the Press.” “But we have to end it.”
Trump also falsely noted that only the United States has birthright citizenship, despite other countries like Brazil and Canada also offering birthright citizenship.
Welker asked how Trump plans to end birthright citizenship and whether he would do it through executive action. Trump responded: “If we can, through executive action.”
What has to be ignored for this to happen, and who has to ignore it?
He can’t. Trump is talking out of his ass because he has no idea what the Constitution says, and he apparently thinks he can hold a referendum on it. He says later in the interview that he could have done it in his first term but didn’t because he had to “fix covid” (which you may recall did not exist until the last year or so of his term) first, which is a blatant excuse for why it didn’t happen before, and he’ll come up with another excuse when he can’t do it again
The 14th amendment, and the Supreme Court. Unfortunately, they seem to have no problem doing so. I suspect they will decide that US v. Wong Kim Ark got it wrong and should thus be overturned, or else that it should be interpreted much more narrowly than it has been for over a century (possibly on the basis that it was decided on a very specific fact pattern, on arguments the government made at the time, but which have not been raised since), and thus announce that actually, the 14th amendment was only about ensuring slaves and their descendants would receive citizenship, no one else.
Or maybe, if they want to save face and don’t want to explicitly overturn Wong Kim Ark, they’ll fixate on the importance of “permanent domicile and residence,” and announce that, actually, only citizens, nationals, and legal permanent residents of the US have such a claim.
Maybe.
The ambiguity of “and subject to the jurisdiction thereof” had to be interpreted by SCOTUS in the Wong Kim Ark case. This SCOTUS could change it to the minority view some hold that the parents must have legal residence in the United States and be not subject to a foreign government. Since the US allows dual-citizenship I think that not owing allegiance to a foreign government is a non-starter but I could see SCOTUS choosing to interpret “subject” and owing allegiance to the United States through citizenship or legal status.
Question: if you are in the country legally like on a visa but not yet naturalized, at any point do you have to sign paperwork saying you will follow the laws of the country or similar? I could see someone saying THAT is the requirement to be subject to the jurisdiction. What about the argument that in this country you must follow the law, therefore you are subject to the jurisdiction of the United States if in the country and not an ambassador? Let’s ignore that while we deport you as an illegal therefore that’s not a thing.
I could see Trump implementing that interpretation by executive action and force it back into the courts.
Because first Congress would need to pass a new version of the Citizenship Act to change the legisiative definition of birthright citizenship AND (in the above scenario) a law enabling the president to designate immigrants as unlawful combatants, which from a practical standpoint would probably require declaring war on their countries of origin.
This requires 60 votes in the Senate, which they don’t have, so first they’ll need to flip 7 seats in the 2022 election.
Then, once they pass those laws, they will be sued, a judge will stay those laws, and it will take a decade or so before it even gets to the Supreme Court.
Let’s hope not, but the far right, including politicians in office and even Trump refer to migrants crossing the border as an invasion and an act of war (IIRC for the act of war part).
Whenever I am in the United States I am very conscious of the fact that I must follow all US laws, and if I screw up somehow
and get charged with breaking the law, all the Canadian consul can do is hold my hand and say « There, there. »
That makes me subject to the jurisdiction of the United States, as far as I can see.
[activist judge hat]
Oh, sure, subject to the jurisdiction of the United States de jure, but if you are in the US undocumented and thus unknown to the government of the US, then you are de facto not subject to its jurisdiction. How can the US be expected to exercise jurisdiction over someone who is not legally present? By inventing some sort of legal counter-fiction whereby a person may be physically present in the US, but not legally present in the US? Preposterous! It is thus as clear as an unmuddied lake that neither you nor your offspring for three generations hence may be US citizens, except by jus sangis, or else not at all.
[/activist judge hat]
« Hey judge, if I’m not subject to the jurisdiction of the United States, then you have no power to order me deported, and US marshals have no power to force me back across the border. Thanks, Judgie! »
You think the US government is going to be consistent? By the way, immigration courts in the US fall under the executive branch, not the judicial branch (makes it easier to justify treating immigrants differently between the two systems).
Alternatively “Oh, well of course you are subject to the jurisdiction of the US now that we have you in custody, but you weren’t when your children were born, so…”
And what happens if Trump says screw all that…Executive Order and orders immigration to start deporting those people?
SCOTUS has given the president carte blanche to do whatever they please because there are no repercussions.
If five years from now some court finally decides this was wrong so what? Trump is out of office, can’t be held accountable and those people are long gone.
He, ICE, and any other relevant officials will be sued by the ACLU, SPLC, and others, on behalf of millions of US citizens. The judge will order a stay of the order until the legal issues are settled. It will take several years for that court to make a ruling, which will then be appealed several times, taking several more years before it ultimately reaches the Supreme Court, by which time Trump will have had a stroke while sitting on the toilet and President Ocasio-Cortez will have appointed several new justices who will rule that that order was in violation of the 14th amendment and the Citizenship Act in addition to being an unconstitutional bill of attainder.
I hope you are right but we know Trump was pissed at being foiled in the past and means to make sure he has a government of yes-people. Are you willing to bet judge Eileen Cannon will rule in your favor?
“The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” ~Andrew Jackson (sometimes erroneously reported as, “John Marshall has made his decision; now let him enforce it!”)
What happens if Trump gives the court the finger and starts deporting those people anyway? Do you think the cronies he appointed to run the agencies needed for this will refuse him?
The SCOTUS gave Trump (the president) legal immunity. There is nothing to stop him.
This, exactly. I’ve been to the United States many times, always as a tourist, and at no time after being examined by the US border guard who looked at my passport, have I ever been asked by any American authority about who I am, where I come from, and why am I there.
(There was the waitress at TGIFridays in Chicago, which had a “We Card Everybody” policy, who wasn’t sure that my Canadian passport that I used for ID was a real Canadian passport and not a fake. When I said that I’d simply take my business elsewhere if she was doubtful, all of a sudden, my passport was real and genuine. But that’s the closest I’ve come to being examined about me being in the US.)
But I am always aware that I am subject to the jurisdiction of the United States, and/or the state in which I happen to be. Should anything go sideways, the best the Canadian consul can do, is to recommend a local lawyer.
Are they also gonna give legal immunity to the entire rest of the executive branch and every LEO involved? 'Cause those people can ALSO be held accountable to the law.
That’s certainly what Trump wants people to believe. It makes his job easier if people are convinced that there’s no point in fighting him because he can do whatever he wants.