How can Trump get around the 14th Amendment?

Great Debates
81

It’s happened dozens of times. It’s happened in this thread.

“The Supreme Court will do whatever Trump wants.”
“They didn’t do whatever he wanted in 2020, or after 2020 either, and it’s not like he’s appointed more justices since then.”
“B…b…but this time is DIFFERENT! Guardrails! Immunity! Project 2025!”

It’s repetitive, it’s completely baseless, and it’s not at all conducive to threads about how things will play out from a legal perspective to just throw your hands up and declare the law doesn’t matter. I assume you started this thread because you wanted a legitimate answer to the question, so why you’re falling back on doomerism is a mystery to me.

Still not gonna answer that one then? Noted.

82

Moderating:

These are personal attacks. Stop it now, or leave the thread if you can’t make your points without snarking.

83

For those that want an outline of how it might actually play out, rather than the more fanciful “Trump can do whatever he wants and nobody can stop him” argument, I found this article from Mother Jones informative:

Basically, it would start with an executive order that would declare that there was an “invasion” and that children of the “invaders” should not be given passports, Social Security cards, or other documents that prove citizenship. It would also declare a more restrictive interpretation of the 14th Amendment and the Kim Ark case.

I would imagine rather quickly some baby would be denied documentation and the case would be taken up by the ACLU. I would also expect that the executive order is likely to be stayed until a final ruling is made by SCOTUS, but I suppose it’s possible that a lower court might allow it to remain in force until that final ruling.

Whether SCOTUS would ultimately allow a President to unilaterally declare some arbitrary group of people “invaders”, and thus remove the protections of the 14th amendment, is (amazingly) anybody’s guess at this point.

But I imagine it would not be a blanket “nobody gets citizenship at birth anymore” EO, but rather one that says “no children born after Feb 1, 2025 to parents who are foreign invaders from the following countries (Mexico, Venezuela, Ecuador, etc) shall be issued citizenship-affirming documents because this administration does not consider them “subject to the jurisdiction” of the United State as required by the 14th amendment”.

There are also some practical enforcement issues, in that I’m not sure that the federal government can require a state to verify and list parental immigration status on birth certificates. So it’s not entirely clear to me how the State Department (for example) would be able to deny a passport to a baby born in California (for example, if they don’t go along with verifying parental citizenship) without adding additional paperwork requirements that don’t currently exist to all passport applications.

Right now the primary way to prove your citizenship for a passport is:

I guess you could add the requirement to verify parental citizenship or place of birth, but that could be a very big challenge for many folks, even “real Americans”. Maybe they will decide it’s worth it to stop the “invaders”. I suppose the time-gated nature of it would limit the impact, since it would only apply to kids born after a certain date and most parents have proof of their own citizenship (which would still just be a birth certificate) they could submit with a passport application for their child.

84

Why not? It’s a pretty straightforward question, no matter which side you support. It’s not like there’s a lot of nuance in the question. And basically everyone expects it to end up at the Supreme Court, regardless of how any lower court rules.

And we’ve seen the Supreme court move very rapidly on some questions that it actually cares about, like Trump’s eligibility to be on ballots. If they want to fast-track this, they can.

85

And that’s not going to be the question asked. I think even hard-core anti-immigrant forces know that retroactive denaturalization is both very unlikely to win in court and very unpopular.

Instead they are going to very narrowly attempt to limit the applicability of the 14th to not apply to (a) newly born children of (b) parents that are classified as “invaders”.

86

There is one element at work here that would defeat Trump’s attempt. The courts, for all of their faults and politics, ultimately want a system that works. I suppose they could say from this moment forward birthright citizenship is not a thing and leave it to Congress to pass the corresponding law and this would be the biggest success that Trump can get. However, no SCOTUS (and let’s face it, any case would end up in SCOTUS) will take away a person’s citizenship. To do that you would have to say citizenship laws in the past were unconstitutional and that means Congress cannot pass citizenship laws. And what? You are going to take away the citizenship of all Native Americans born on a reservation? All Americans born in the Canal Zone? And remember, Congress is given the enumerated power to naturalize people. Would SCOTUS say that Congress cannot likewise pass “natural-born” citizenship laws? And if those laws were constitutional, then SCOTUS would have to overrule Afroyim v Rusk in order to take away citizenship.

So no. Citizenship may be denied in the future by eliminating jus soli but no natural-born citizen is going to lose their citizenship no matter how it was acquired.

87

Any case will probably go to the Supreme Court, but is the Supreme Court forced to take the case?

88

No unless under original jurisdiction. But refusal to take the case would lead to an assumption they agree with the circuit court.

89

They do not have to be “invaders”. There is a minority legal opinion that foreign nationals with unlawful presence in the US is sufficient.

90

And the legal value of a minority opinion is…?

91

Not a minority opinion like judges/justices dissenting but rather a minority of legal “experts” with a certain view of the meaning of the law. Usually there is no legal value BUT occassionally an attorney with a minority can give the courts an excuse to change the law. That’s how the battle against “separate but equal” started.

92

But that only works if the court is of a mind to change the law in the first place. The problem I can see with depending on the law to stop Trump from carrying out his wishes is that the whole thing depends on human beings interpreting the laws in an honest and above-board manner that favors previous opinion.

93

I thought that was the hypothetical in this thread. I mean if SCOTUS rules, “The 14th Amendment means jus soli is a thing so with all due respect Mr. Trump, get the fuck out of my court.” then what are we doing here?

94

We are trying to find out if the mere fact that the 14th Amendment exists is enough to stop Trump in his tracks.

95

My gut is that deference to precedent is enough on the current SCOTUS to avoid such a broad conclusion. At the very least it would seem to me that Congress would have to act to declare that to be the law of the land.

But the narrower claim that the POTUS has the authority to declare some subset of non-permanent residents as “not subject to the jurisdiction of the US” in accords with Ark Kim (which used the “invader” terminology, IIRC) may be more palatable to a Thomas, Alito, Gorsuch, Kavanagh, Barrett majority.

Also that narrower claim seems to be the plan they are going to use. Declare via EO that children born after some date to parents without legal status from specific countries are not to be issued citizenship-affirming documents by the State Department or other government agencies. That has the nice feature (from Trump’s perspective) that it flows entirely from the Executive Branch, and also has zero perceived impact on any of his supporters.

Well, I think that has an obvious factual answer. He absolutely plans to draft and deliver an EO making some sort of claim limiting birthright citizenship to some number of people. The existence of the 14th won’t stop him from doing that. But how judges interpret his actions will likely depend on how narrowly the EO is drafted, and possibly whether Congress is willing to go along with it.

96

Was this not answered by SCOTUS after our numerous threads on Section 3?
And again, if there is a legal theory that could lead to overturning Wong Kim Ark, it will end up in the courts.

97

Piper, being Canadian, has likely never seen how enormous the set of volumes is that is called “the regs”. For every regulation that says “you must not. . .”, there is at least one or more others that tell you “sure, go ahead”. This is not an exaggeration.

98

aren’t we seeing this in recent voter suppression laws?

99

I guess that depends on what you mean by “stop him.” Will it prevent him from issuing an executive order to the federal bureaucracy to treat the American-born children of undocumented immigrants as noncitizens? No. Will a court enjoin enforcement of the order pending settlement of the inevitable lawsuit? Likely so. Will the Supreme Court uphold the principle of birthright citizenship? I think they likely would, although it’s more in doubt that it’s ever been.

100

It’ll win in the courts as long as it goes to Trumpite judges, and of course it’s win in the supreme Court. And it being unpopular is a bonus, not a problem; that means they are “owning the libs”. If they accomplish nothing more than enraging the majority of the population, they’ll consider that a victory.