# How can Trump get around the 14th Amendment? **URL:** \ **Category:** Great Debates\ **Tags:** trump\ **Created:** [December 9, 2024, 1:15am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368 "2024-12-09T01:15:56Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Zoobi](https://avatars.discourse-cdn.com/v4/letter/z/13edae/32.png) [@Zoobi](https://boards.straightdope.com/u/Zoobi)\ **Post date:** [January 21, 2025, 2:29am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/201 "2025-01-21T02:29:05Z")
Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth. Any person who can’t prove his parents citizenship is at risk of having their citizenship denied by any State, local etc authority. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 2:30am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/202 "2025-01-21T02:30:12Z")
> [@Zoobi](#): > > Any person who can’t prove his parents citizenship is at risk of having their citizenship denied by any State, local etc authority. Which obviously cannot apply when nobody knows who the parents are. None of this is going to survive the courts. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 21, 2025, 2:31am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/203 "2025-01-21T02:31:42Z")
Y’know what we need here? A real American Immigration and Naturalization lawyer. 'cause it seems we have people looking at the same text and getting locked in on that it can only mean the worst possible thing they can imagine, or that it’s word salad that means nothing. ---
**Author:** ![Zoobi](https://avatars.discourse-cdn.com/v4/letter/z/13edae/32.png) [@Zoobi](https://boards.straightdope.com/u/Zoobi)\ **Post date:** [January 21, 2025, 2:31am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/204 "2025-01-21T02:31:55Z")
It will be quite obvious who’s applications are going to get scrutinized and who’s aren’t. Come on man. The whole point is that no one can prove it, but only some will need to. ---
**Author:** ![PhillyGuy](https://avatars.discourse-cdn.com/v4/letter/p/ed655f/32.png) [@PhillyGuy](https://boards.straightdope.com/u/PhillyGuy)\ **Post date:** [January 21, 2025, 2:32am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/205 "2025-01-21T02:32:38Z")
> [@Smapti](#): > > Please indicate how an executive order can nullify a law passed by Congress. > > [8 USC 1401: Nationals and citizens of United States at birth](https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1401&num=0&edition=prelim) 1. That law does not define “subject to the jurisdiction of the United States”. It just repeats it. So Alito could argue that Congress still has not implemented that clause of the 14th amendment. 2. Trump said he would be a dictator on day one. He has 148 minutes to go. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 2:32am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/206 "2025-01-21T02:32:38Z")
> [@Zoobi](#): > > It will be quite obvious who’s applications are going to get scrutinized and who’s aren’t. Come on man Which will make it all the easier to prove in court that this is unconstitutional. ---
**Author:** ![Zoobi](https://avatars.discourse-cdn.com/v4/letter/z/13edae/32.png) [@Zoobi](https://boards.straightdope.com/u/Zoobi)\ **Post date:** [January 21, 2025, 2:34am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/207 "2025-01-21T02:34:18Z")
Look I get it. You don’t think there’s anything to worry about. Other people don’t have the luxury to do that. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [January 21, 2025, 2:34am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/208 "2025-01-21T02:34:19Z")
Which court are you possibly talking about? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 21, 2025, 2:35am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/209 "2025-01-21T02:35:36Z")
> [@RickJay](#): > > This is one of the few broad rights (e.g. not a minority language right) I can think of that is specifically spelled out in the Charter than the US does not have in the Bill of Rights. There are others: - Freedom of association (Charter, s. 2(d); has been held to be implicit in the 1st Amendment, but it’s not express) - Right of citizens to vote in federal and provincial elections (Charter, s. 3; US Constitution prohibits certain restrictions on the right to vote, but doesn’t guarantee the right to vote to all Americans, such as convicted felons) - Right to security of the person (Charter, s. 7; was the basis for the SCC’s decision striking down federal abortion law) - Express prohibition on discrimination based on sex (Charter, s. 15; may be what the Equal Rights Amendment would have done) - Express guarantee of gender equality (Charter, s 28; again, may be what the ERA would have done). When you get into the weeds of the guarantees in relation to criminal process, there are also express provisions that in the US are held to be implicit in the due process guarantee), but I won’t go into that much detail. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 2:36am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/210 "2025-01-21T02:36:01Z")
> [@PhillyGuy](#): > > That law does not define “subject to the jurisdiction of the United States”. Which the Supreme Court has conveniently already addressed; > [@](#): > > The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born r naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution… > > The fundamental principle of the common law with regard to English nationality was birth within the allegiance—also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’—of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,—as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,’—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king. > > This fundamental principle, with these qualifications or or explanations of it, was clearly. though quaintly, stated in the leading case known as ‘Calvin’s Case,’ or the ‘Case of the Postnati,’ decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679… > > Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: ‘By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.’ Cockb. Nat. 7… > > It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. > > The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. > **[UNITED STATES v. WONG KIM ARK.](https://www.law.cornell.edu/supremecourt/text/169/649)** TLDR: “Subject to the jurisdiction of” means that by dint of being born in this country, one holds allegiance to the state and is protected by its laws, because that’s what it meant under English Common Law. > [@Czarcasm](#): > > Which court are you possibly talking about? All of them. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [January 21, 2025, 2:41am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/211 "2025-01-21T02:41:18Z")
> [@Smapti](#): > > TLDR: “Subject to the jurisdiction of” means that by dint of being born in this country, one holds allegiance to the state and is protected by its laws, because that’s what it meant under English Common Law. You quoted the _“or the children of alien enemies”_ exception. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 2:42am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/212 "2025-01-21T02:42:28Z")
> [@The\_Other\_Waldo\_Pepper](#): > > You quoted the “or the children of alien enemies” exception. Which clearly does not apply here, because undocumented immigrants are not “alien enemies”, nor is any part of the US currently under “hostile occupation” as Lord Chief Justice Cockburn put it. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [January 21, 2025, 2:44am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/213 "2025-01-21T02:44:24Z")
At least I seem to have been right about one thing in the lead-up, that this was going to have to be something applied _going forward_ to those born **after** the order. The rights-protection based defense here, on the Administration side, will be that this exception to the “subject to jurisdiction” concept “it does, too”, exist in the US notwithstanding the Common Law. They are not going to argue **in the Court** that they are children of a hostile invading force or diplomats or any such. They’ll leave that to the guests at Fox & Friends. Just that their interpretation is what’s _really_ originalist by the standards of the Thomito Court. And I continue to think that some, maybe many, states will fight this as an unfunded mandate to start recording parental citizenship/residency status within the next 30 days, when there’s probably not even a blank for that in the form they are now using. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 2:46am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/214 "2025-01-21T02:46:22Z")
> [@JRDelirious](#): > > And I continue to think that some, maybe many, states will fight this as an unfunded mandate to start recording parental citizenship/residency status within the next 30 days, when there’s probably not even a blank for that in the form they are now using. I have my original birth certificates in my physical possession - both the one issued by the hospital and the one issued by the state of California. Neither of them list the citizenship status of my parents. If hospitals are going to be expected to start collecting that information, that’s going to be a violation of medical privacy rights, and if states are going to, then that is indeed an unfunded mandate that many states are probably going to not bother with unless they’re somehow forced into it. ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 21, 2025, 2:55am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/215 "2025-01-21T02:55:02Z")
> [@Smapti](#): > > In that case, the order fails at what it purports to accomplish. It intends to accomplish precisely what it means to; ending birthright citizenship for the children of illegal immigrants. Might not do it until later this year, but the Trumpists will say better late than never. ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [January 21, 2025, 3:08am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/216 "2025-01-21T03:08:16Z")
> [@Smapti](#): > > I can already see a dozen holes in this order. Foundlings, for example, are presumed to be citizens - what’s to stop an undocumented parent from abandoning their baby at the door of St. Mary’s, for instance, so that their parentage will be forever unknowable and therefore make citizens of them? Love and the maternal instinct? You’re gleefully parading this as some sort of fatal gotcha, but the number of undocumented immigrants who are going to come all the way to the US just to abandon their babies has got to be vanishingly small. And I can guarantee that Trump and the MAGA crowd don’t care about the few cases that might arise. They’re concerned about so-called anchor babies—the notion that temporary or undocumented immigrants connive to give birth in the US so that they can’t be deported. That trick doesn’t work if you disown your baby. So as far as MAGA is concerned, ending birthright citizenship solves the anchor baby problem. ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [January 21, 2025, 3:09am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/217 "2025-01-21T03:09:39Z")
> [@Smapti](#): > > If hospitals are going to be expected to start collecting that information, that’s going to be a violation of medical privacy rights Which medical privacy right specifically? ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [January 21, 2025, 3:09am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/218 "2025-01-21T03:09:48Z")
> [@psychonaut](#): > > You’re gleefully parading this as some sort of fatal gotcha, but the number of undocumented immigrants who are going to come all the way to the US just to abandon their babies has got to be vanishingly small. I’m pointing out ways in which the order as written doesn’t work. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [January 21, 2025, 3:10am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/219 "2025-01-21T03:10:59Z")
> [@Smapti](#): > > Which the Supreme Court has conveniently already addressed The Supreme Court has never had a problem reversing itself, whether liberal (_Brown v. Board of Education_) or conservative (Dobbs v. Jackson Women’s Health) when it feels the need. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [January 21, 2025, 3:11am UTC](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368/220 "2025-01-21T03:11:19Z")
> [@JRDelirious](#): > > Y’know what we need here? A real American Immigration and Naturalization lawyer. That would be me. I’ve made my comments in this thread and have nothing further to add at this time. Standard disclaimer: Nothing I have said in this thread should be considered legal advice, and I am not your lawyer. What I have copied below is what I said 1.5 months ago, and it seems to be the path Herr Trump has taken. Whether it holds up in the courts or not… that’s so far beyond the law as to be anyone’s guess. Get enough judges on your side and you can just make shit up as you go along, you know? > [@ASL\_v2.0](#): > > > [@Czarcasm](#): > > > > What has to be ignored for this to happen, and who has to ignore it? > > 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. > > [United States v. Wong Kim Ark - Wikipedia](https://en.wikipedia.org/wiki/United_States_v._Wong_Kim_Ark) > > 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. [Previous page](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368.md?page=10) [Next page](https://boards.straightdope.com/t/how-can-trump-get-around-the-14th-amendment/1011368.md?page=12)