But you’re saying that our immigration laws can’t apply to that person because they should be considered outside the reach of U.S. jurisdiction. What’s the legal basis to deport someone who isn’t accountable to our laws?
As has been said many times, persons with diplomatic immunity and up to a point Native Americans living on a reservation.
Diplomats and their families, under principles of international law predating the United States Constitution, much less the 14th Amendment. Diplomatic immunity, that bugaboo of many a melodramatic crime drama, places diplomats and their families beyond the ordinary criminal and civil jurisdiction of the host nation.
On what basis can we expel a diplomat (say he commits a murder) if the diplomat is not subject to the jurisdiction of US law?
What if Congress passed a law saying that from this day forward no person who is born of illegal immigrant parents is subject to the jurisdiction of U.S. law, but may be subject to the jurisdiction of state law? Would that fly?
{Removed by Monty.}
On the basis that the diplomat is no longer accredited to remain in the United States. There is a rub, though, as the sending nation may decline to exercise immunity and allow the arrest, trial, and incarceration of the diplomat for murder. I do not know if that has ever happened in the United States, however.
Of course not. Do you not see the problems with that?
Again, do you see any irony in that suggestion in light of the fact that immigration related crimes are purely the domain of the Federal government?
So as the diplomat is STTJ (I’m going to shorthand the phrase from now on) shouldn’t any children he has be citizens? I mean if we can expel him, we exercise jurisdiction over him, right?
It would be even crazier if the home country declined to exercise immunity and therefore made him STTJ thereby allowing the act of a foreign country to determine that his children would be U.S. Citizens.
But we certainly wield some power over diplomats. Imagine if after a U.N. meeting a diplomat goes to a local restaurant and lights a cigarette. The waiter tells him that smoking is forbidden in indoor workplaces in New York and to please put it out. The diplomat tells him (and the police who come later) to cram it up his cramhole that he will damn well smoke wherever he pleases, and for a flourish he whips his dick out and bangs it on the bar. At some point, an agent of the government will forcibly stop him from doing this. How can this agent do so as the diplomat is not STTJ?
Further, remember when Lincoln approved the hanging of 30 plus Sioux for raiding a town and murdering people? How is that not exercising jurisdiction over the Sioux? Yet they are held as the example of who is not a U.S. Citizen under the clause.
I mean, I am strongly leaning towards the majority interpretation of the clause, but the phrase STTJ seems to have stronger meaning than simply that we have the power to enforce certain laws upon someone.
No, but enforcing immigration laws are a basic attribute of sovereignty. How is that any different that saying that children of an invading army are STTJ because the government is taking adverse action under its lawful authority (i.e. shooting at them)?
As I said just above, there has to be more to STTJ than the idea that the U.S. government can take some sort of enforcement action against a person. If it is simply that, then everyone is STTJ and it makes the clause superfluous.
Nope. The accreditation is to accept him as a representative of his government. Once the accreditation is rescinded, he’s on his way home.
Of course the children of illegal immigrants, and, in fact, illegal immigrants themselves are within the jurisdiction of the United States. Remember Plyler v. Doe, the 1982 SCOTUS decision that said laws prohibiting children of illegal aliens (born in the US or elsewhere) were a violation of the Fourteenth Amendment’s Equal Protection clause? From the majority decision:
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It’s logic like this that makes me thoroughly confused as to whether you are a lawyer.
When a diplomat is accredited to come here, it is widely known that the accreditation is subject to the exception that the individual is privileged from arrest. Absent the accreditation, the diplomat cannot come here. Diplomats can’t force their way into other countries and enjoy immunity. But so long as they are invited, they do enjoy the immunity. And under the law, host nations can withdraw the invitation at their whim.
If they break the law, they don’t go to jail. Period. The U.S. has no jurisdiction on their criminal matters, unless the sponsoring state waives that provlidge.
Saying that someone is not subject to a particular jurisdiction is in effect an immunity. Come on, law talking guy, Rhode Island can’t go arrest one of your Mountaineer clients because they bought a beer in Boone County after last call in Woonsocket. Right?
You have to pick your poison: if someone is here illegally, and they are subject to legal processes to remove or punish them for that, then by definition they are subject to our jurisdiction.
If you want to make them NOT subject to our jurisdiction, then it is obvious that we cannot hold them to account for violating our laws.
This is like the most basic logic I can imagine. Why is this so hard to understand?
I don’t think he’s lying – I think he’s genuinely that stupid.
If Congress wants to try and narrow down the laws as to what exactly “birthright citizenship” means (for example, DOES it apply to children of illegal immigrants, or tourists?), that’s one thing.
But Trump is either too stupid to realize he can’t do this, or he’s just pandering to his base before the election. Probably a little bith of both.
I don’t know where you are getting all of this from because I agree with all of it.
I was responding to the argument that if a person was not STTJ then we could not even deport them.
That cannot be true as we can eject diplomats and (back when they were tribes) took action against American Indians. If that argument held water, then everyone present in the United States would be STTJ of the laws and nobody would be excluded under that phrase making it superfluous.
We can eject diplomats by saying they are no longer welcome in the country, at which point the country sending them basically always withdraws them.
The actions against American Indians were basically a policy of duplicity and genocide. I don’t think that’s here nor there; it wasn’t as if the racist policies of the past were all that careful to comply with the laws in place. See for example, all the broken treaties with Indian nations.
So the law and the logic is clear: 99.99+% of people inside the US today are subject to our jurisdiction. But that don’t mean the remaining small numbers are not in fact excluded from our jurisdiction.
It is a longstanding custom, predating the existence of the United States, that ambassadors are not subject to the laws of the nation they are visiting. But no country is obliged to accept an ambassador if they don’t wish. We currently don’t have diplomatic relations with Iran, because of a little incident a few years ago where our diplomatic staff was held hostage.
If a diplomat commits a crime here in the United States, they have immunity. If the police arrest the diplomat, a judge will order the cops to let him go. Even if it’s murder.
However, that diplomat will now lose his diplomatic credentials, and be told to go home, because we say he’s not a diplomat any more. He is persona non grata. He doesn’t have to go home. But if he doesn’t go home, he’s not protected by diplomatic immunity any more, because he’s not a diplomat any more. So he can be deported just like any other alien who doesn’t have permission to stay in the country.
For something egregious like murder, his home country might waive the immunity, since the immunity is held by the country, not the diplomat.
So all those TV-style diplomatic murder sprees are complete fiction. The diplomat represents a country, who wants a diplomat to represent their interests, not cause problems. The diplomat also needs the permission of the host country, they can’t be unilaterally imposed.
On the other hand, it really is true that UN diplomats in New York are notorious scofflaws for parking violations, since they’re judgement proof.
Style of upbringing is also different, I got in trouble when I started school in the US - there was a sing along set up, standard AMerican kiddy music of the mid to late 60s, including My Bonnie. Unfortunately, I only knew the "Army’ version … and as a very young sprout, volume control is set at loud so instead of the usual, I segued loudly into the whole ‘my god how the mortars roll in’ … and the tree hugging peacenik hippy teacher was shocked and immediately sent me to the office, and called my mom to answer pointed questions about how could I get exposed to such unsuitable music…
Well, let me just say that my cardiologist and my oncology GYN back in the early 2000s commented separately when they noticed that a nonmilitary doc sent me to them after some 20 years of seeing military docs that most of their ‘interesting’ [read that as mishandled] cases came from military docs … and that as a perfect example in 98 I had a multi month run in with pneumonia, with just after a civillian doc managed to get it whipped I had chest pains, went to the base hospital and was seen in the base ER by a doc known on base as "Dr Death’, who had some 22 malpractice suits going at the time - he didn’t read the screaming shocking pink folder with PENNICILLIN in 3 inch letters on both sides of it to tell me that I was ‘coming down with bronchitis’ and prescribed a rousing dose of pennicillin for me. When I said I couldn’t take it, he told me nonsense and walked out. A couple years later, I was in with my 20+ year old orthopedic file for an ortho consult for a crunchy right knee … that was firmly diagnosed as several knee injuries over about 4 years and a written advisory that I should expect osteoarthritis to be hitting about 10 years before I got tired of the crunching … he had the balls to tell a diabetic of some 20 years of experience who was following the diet and exercise [and managing to keep a good A1C without meds] that “you need to stop sitting on the couch eating candy all day, lose weight and your knee pain will get better” without bothering to do any diagnostic work other than to look at me and see the 150 pounds I put on in a year and a half when something the Navy refused to bother diagnosing properly [thyroid probably] gave out for the time between 1990 when we rotated to Groton and about 7 years ago when I started to be able to lose weight again. [and yes I had tried everything including low carb, no carb, vegan, vegetarian, carnivore and dropping to 800 cal from 1800 cal … my diet and exercise had not appreciably changed between 1980 when I got the original dx and 7 years ago when I started losing weight again.]
Talk to any long time service family, up until about 10 years ago, pretty much any branch medical location sucked and you were better off going to a civvy doc and hospital.
But as people keep pointing out, we’re talking about the children, not the parents. Is diplomat-ness genetic? If a diplomat gives birth here, the baby is not a diplomat, so he’s not excluded from being “subject to the jurisdiction thereof” by diplomatic immunity.
I am no con lawyer, but my thought is this:
Congress (and the President) can control the individuals who come into the country. They can impose restrictions on immigration. That’s their constitutional power.
But the language of the Constitution makes it clear that once you’re born here, you’re eligible for citizenship.
It’s worth noting that there were few restrictions on immigration until the 1880s, when the Chinese Exclusion Act was enacted. Congress had its authority to do so (I guess), but the Constitution makes it clear that once born here, you belong here.
If there’s a gray area, it’s natural-born persons of parents who’ve entered illegally. I could see a conservative court in a future case invalidating citizenship of illegally born children.
You’d think Chump would just want to focus on the economy. But the Orange One is desperate and painted into a corner, so he is throwing anything he can on the wall and seeing what sticks.