Good for Newsweek’s staff. It’s a BS opinion, in my opinion, and in the opinion of well-respected con law professors.
I knew I should have gone back and read Wong Kim Ark. I almost included something in my post about children born to diplomats or inside embassies. Thanks.
It’s a pretty thin apology.
They only apologized after first running the article and then trying to defend it. And their apology is trying to misdirect the blame; they say that other people are misusing the essay. They’re not taking any responsibility on themselves for publishing it. They’re not repudiating the article. And it’s still available on their site.
And claiming “We entirely failed to anticipate the ways in which the essay would be interpreted, distorted and weaponized” and “The op-ed was never intended to spark or to take part in the racist lie of Birtherism” is ridiculous. It’s 2020. We’ve had over a decade of seeing these same lies being told about Obama. How can Newsweek pretend they didn’t anticipate the same reaction when they repeated the same things about Harris?
Yeah, management is engaging in a “but we did nothing wrong” non-apology. Too common.
I think what frustrates me the most is that in Harris’ case, they’re trying to claim that jus soli citizenship isn’t a thing because her parents may or may not have been 100% legal at the time of her birth.
But the rest of the time, they’re decrying jus soli citizenship with all that anchor baby nonsense- the tacit understanding is that it IS the law of the land, and they don’t like it.
They (the Republicans) can’t have it both ways by claiming it is the law of the land in the case of anchor babies, and then claiming it’s not in Kamala Harris’ case.
This may be hard to believe, but I somehow glossed right over that and mentally locked onto Monty’s reply (you’ll see my response directly below his). Sorry about that.
In reading what Volokh wrote - and in reading more detail about what the Supreme Court said in Wong Kim Ark - it seems like they have addressed the matter:
Upholding the concept of jus soli (citizenship based on place of birth),[122] the Court held that the Citizenship Clause needed to be interpreted in light of English common law,[1] which had included as subjects virtually all native-born children, excluding only those who were born to foreign rulers or diplomats, born on foreign public ships, or born to enemy forces engaged in hostile occupation of the country’s territory.[3][123][124] The court’s majority held that the subject to the jurisdiction phrase in the Citizenship Clause excluded from U.S. citizenship only those persons covered by one of these three exceptions (plus a fourth “single additional exception”—namely, that Indian tribes “not taxed” were not considered subject to U.S. jurisdiction).
OK, so SCOTUS laid out four exceptions to birthright citizenship, and Harris doesn’t seem to fit any of them.
OTOH, Eastman said this about Kim Wong Ark:
At issue there was a child born to Chinese immigrants who had become lawful, permanent residents in the United States—“domiciled” was the legally significant word used by the Court. But that was the extent of the Court’s holding (as opposed to broader language that was dicta , and therefore not binding). Indeed, the Supreme Court has never held that anyone born on U.S. soil, no matter the circumstances of the parents, is automatically a U.S. citizen.
Does this mean that the SCOTUS opinion regarding exceptions to birthright citizenship was not legally binding, and that their actual ruling (if you’re born in the US to foreign citizens who are domiciled here, then you’re a citizen) is narrow enough to not apply to Harris (whose parents may not have been domiciled in the US at the time of her birth)?
Jon Feere, of the Center for Immigration Studies (CIS), has said that “Several legal scholars and political scientists who have delved into the history of the 14th Amendment have concluded that ‘subject to the jurisdiction thereof’ has no plain meaning”.[209] Commenting on Trump’s idea of an executive order, Speaker of the House Paul Ryan said “you obviously cannot do that… I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”[210] Mark Krikorian, executive director of the CIS, said that if Trump follows through on his plan, “This will set up the court fight… the order will be enjoined, [and the] case will eventually reach [the Supreme Court], which then will finally have to rule on the meaning of ‘subject to the jurisdiction.’”
Eastman’s claim isn’t based on a question about the legality of her parents’ residence; it’s a question of whether they were permanent residents, or just here on a temporary visa (e.g. a student visa).
It doesn’t matter: she was born here; she’s a citizen.
That’s what I’m saying, she was born here, she’s a citizen. Unless I’m hugely mistaken, there’s tons of case law backing that up.
That’s also why I’m irritated with the Republicans; they treat it like it’s a done deal when they whine about anchor babies, but then when it’s Kamala Harris, somehow it’s not a done deal anymore? What kind of morons do they have listening and believing this nonsense and thinking there are two different ways this works?.
Eastman is just making stuff up.
The Supreme Court said that anyone who is born in the United States is a natural born citizen and defined the exceptions. Harris was born in the United States and none of the defined exceptions apply to her. She is a natural born citizen.
Eastman’s argument is that there might be other exceptions that didn’t occur the Supreme Court. And that if somebody had asked the Supreme Court about these exceptions that Supreme Court might have ruled that they also negated citizenship. And that one of these hypothetical exceptions might apply to Harris.
That argument is nonsense and has no legal validity. You can’t base a legal argument on imaginary laws.
If you or I made this argument, we could at least claim ignorance; we’re not lawyers. John Eastman is a lawyer and was the Dean of a law school; he must know enough about the law to know what he said isn’t true. He was lying.
FYI, but the Center for Immigration Studies isn’t just some think-tank or academic center that studies immigration. They are a strongly anti-immigrant lobbying group, to the point that they have been classified by some (the Southern Poverty Law Center) as a “hate group”.
I’m really not saying this to try to shut down debate–I’ve gotten to the point of being somewhat dubious of the SPLC’s “hate group” classifications–but merely pointing out that “Jon Feere, of the Center for Immigration Studies” is not just some disinterested legal scholar; he is someone who is very strongly pushing a point of view here. (And I do think what’s he’s saying is essentially nonsense–“subject to the jurisdiction thereof” has been ruled on by SCOTUS; it is not some strange and arcane phrase that no one knows the meaning of.)
Is eligibility for the presidency the only circumstance for which “native-born citizen” is an issue?
The crux of the idiotic argument is that her parents were not “subject to the jurisdiction of the United States” and, therefore, she is not a citizen by birth. It’s a bullshit argument and, of course, it’s based on, fueled by, steeped in, and perpetuated by racism.
Other than Trump, the claims were mentioned when they all ran. But they were dismissed by legal scholars and were relegated to “interesting facts” and quickly faded away.
Yes. The office of president and vice-president are the only constitutional offices which establish natural born citizenship for eligibility. The only exception to that was at the time of adoption of the constitution in which anyone who was a citizen of the United States at the time of said adoption would be eligible, provided, of course, they met the constitutional age requirement also.
As far as I can tell, eligibility to be President or Vice President is the only issue which distinguishes between being a citizen and being a natural-born citizen.
This seems like a weird claim in a thread that spent a good deal of time (much of it mine) on the argument that John McCain was not a natural born citizen. And, of course, McCain, Cruz, George (not Mitt) Romney, Goldwater (and Hughes and Arthur) all had these arguments made about them (based on very similar–tenuous–legal claims), with roughly the same level of intensity as this Harris article.
(Other than the conjecture that “AOC” is too young to be VP in 2020–they never say that about Biden or Trump, amirite?–I haven’t heard any claim that she is not a natural born citizen. But, of course, she falls into various theories about statutory (vs. constitutional) citizenship (as does, for that matter, Tulsi Gabbard, who I assume falls into the McCain loophole, but is certainly too young for that statute to have applied–but wait, was her father a real US citizen?). I have no idea what the theory would be for Trump.
What made the Obama claims so dishonest and offensive is that they were based on misrepresentations of fact (it’s also what made them “false” as opposed to a matter of legal opinion). The rest of these are various (fringe) legal opinions that float around the legal academy until they can be applied in some politically exciting way (law professors have a problematic tendency to mistake what they think the law should be with what it is – fine for a law review, bad for a new article).
I thought Ted Cruz’s case was not settled, and had not been resolved.
This is the internet. You can find pretty much anything here. Less than twenty-four hours ago I posted a theory that linked the sinking of the Titanic with The Sound of Music.
Theories about white candidates not being real citizens get discussed on the internet. Theories about non-white candidates not being real citizens get published by Newsweek and endorsed by the President.
Maybe. I mean, theories about (non-white) Cruz get published in Newsweek and the Washington Post. And CBS News.
But, of course, (distinctly white) John McCain made the New York Times. At least one law review article. NBC News. Roll Call. And, of course, a Senate resolution expressing the view that McCain was a citizen. Do you expect to see a CBS News article entitled “Harris Addresses Presidential Eligibility Question”?
And that’s just what I found with a few seconds on Google. I’m not sure what is gained by pretending that this didn’t happen.
(I’ve argued on here before, and convinced no one, that we have had two presidents whose fathers were not US citizens at the time of the son’s birth, and both of those presidents have been subjected to rumors that they were not actually born where claimed and were not (therefore) US citizens.)
“Nonsense,” runs the counter-commentary. Indeed, PolitiFact rated the claim of ineligibility as “Pants on Fire” false, Snopes rated it simply “False,” and from the other side of the political spectrum, Conservative Daily News likewise rated it “False.” All three (and numerous others) simply assert that Harris is eligible because she was born in Oakland—and is therefore a natural-born citizen from location of birth.
Only people who have diplomatic immunity are not “subject to the jurisdiction thereof”. Even Illegal aliens are subject to all US laws.
I note that the Professor didnt try this garbage about McCain,Ted Cruz , George Romney or Goldwater. It is always a Dem- hmm, I wonder why? Look, yes, there are people who want to get rid of “birthright citizenship”, and that is their right to try to change the law. But Eastman here is just pulling political crap out of his ass.
According to the U.S. Citizenship and Immigration Services, people are born U.S. citizens if they are born in the U.S. or their parents are U.S. citizens.