The babies are excluded as part of the concept that the status of the spouse or the parent is transferred to the other spouse or the child. For this particular case, the US is saying that sanguinis beats soli for the child because it does for the parent.
That is definitely food for thought. Suppose a diplomat came here from the UK in 1992 and has held his post since. He and his wife had a child born in 1998. The child lives with them until he graduates from high school, but before graduating, he becomes 18 years old.
Prior to turning 18, may the child be arrested for juvenile delinquency offenses? May he inherit property and have U.S. courts enforce his inheritance? If his parents are not feeding or clothing him properly, can the U.S. (well, state) courts take emergency custody of him?
While still living with his parents, and age 18, he commits a murder. May that child be arrested and charged with murder in U.S. courts?
If so, it seems that he is subject to the jurisdiction of U.S. courts and is therefore a citizen by birth. But that is directly contrary to what was said in the debates.
Depends. Does he have diplomatic immunity?
You may say, this is the very question we’re trying to answer. But in practice, I doubt it. I’m sure the British Embassy provides to the US State Department and regularly updates a list of persons that are here under the cloak of diplomatic immunity. The kid’s either on the list or off the list, either covered by his parents’ immunity, or here on his own. There are surely policies specifically covering children of diplomats; it’s not like foreign diplomats having children of various ages with them while serving in the U.S. is a new thing.
Article 37 of the Vienna Convention on Diplomatic Relations (large PDF file) specifies that “[t]he members of the family of a diplomatic forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36”.
So, a child of a diplomat may not be arrested for juvenile delinquency offenses, or even murder. (Article 29, “a diplomatic agent…shall not be liable to any form of arrest or detention”). IANAL, but I doubt that state courts could take emergency custody of a minor child who has diplomatic immunity. I don’t know about inheritance, but Article 34 of the convention does specify that diplomatic agents (and by Article 37 their families as well) are not subject to estate taxes or inheritance duties.
He’s pushing the boundaries of presidential power. He’s saying “I honestly don’t give a fuck about the Constitution - and neither does my party. Now, try and stop me.”
“Suppose a diplomat came here from the UK in 1992 and has held his post since. He and his wife had a child born in 1998.”
Emphasis added.
But in the hypothetical, the child is a national of the receiving state, no?
OK, so they kid is not a national. I wonder if anyone born here to diplomats has tried to claim citizenship and challenged it in courts. Would such a person, if they grew up and turned 18 here, have any case at all, or is it just: Sorry, pal, you are SOL.
Senator Howard said this in the debate surrounding the proposed 14th. His words do not appear in the actual text of the amendment as passed. It is reasonable to assume that someone later in the debate said “Of course this applies to the children of people visiting the country.” Everyone except Howard may have nodded in agreement.
While it is useful to know the context of the debate, this bit from Sen. Howard neither supports nor refutes the idea that the 14th was intended only for former slaves. It only shows Howard’s thoughts on the matter.
It has happened. If the offense is egregious enough.
And even if that was the intent, doesn’t 150+ years of it being practiced to include visitors and immigrant children mean something as well?
As that is in the CFR, in other words, regulations passed by the executive branch, why can’t Trump order the person responsible to draft a order stating:
Though a constitutional amendment could certainly make a change to end birthright citizenship I don’t think it is the only way.
Courts have tread lightly on immigration matters. Congress has a plenary power in this area and judicial review has been limited. But should the courts wade into a dispute about immigration status Congress could pass a law removing the ability of the courts to handle such immigration related cases. Such jurisdictional stripping has been rare, but it represents a possible path short of an amendment.
And to add one more twist, the 14th Amendment refers to “All persons born or naturalized in the United States” and there has been a federal case dealing with what it means to be born “in the United States”. In Tuaua v. United States a Utah resident who was born in American Samoa sued for citizenship. Persons born in American Samoa have the status of US National, but not US Citizen.
The United States District Court for the District of Columbia heard the initial case. It ruled that even though American Samoa is a US territory persons born there are not US citizens under jus soli, though they may be citizens by jus sanguinis. The U.S. Court of Appeals for the District of Columbia upheld the lower court ruling. In 2016 the Supreme Court of the United States declined to accept an appeal, letting the lower court ruling stand. So, indeed, for certain meanings of US soil, there are persons born in certain parts of US soil who do not get US citizenship at birth.
Another similar case was filed by earlier in 2018.
Well, so more food for thought: Is someone born in American Samoa STTJ of U.S. laws? Say a “national” of American Samoa posts on Facebook threatening the president. Can he be hailed into federal court?
Again, I agree with the majority here, but there are so many twists and turns that it seems to me that: 1) not-STTJ does not mean that the United States must let you go on a murder spree and watch you do it, 2) STTJ is not satisfied if you are merely subject to some law enforcement activity during a temporary (and especially illegal) stay, and 3) that Congress and/or the President by EO cannot define what it means to be STTJ.
These are fair and open questions up for debate.
STTJ seems to have arisen from feudal traditions where a peasant owed allegiance to the lord who controlled the land where the peasant was born. STTJ in this sense seems to be a term of art, not reflective of the idea of court jurisdiction.
Records of the debate in Congress on the STTJ phrase reflected competing views. But more than one senator used the word “complete” when describing the jurisdiction the 14th amendment applied to. Discussion included examples of persons who were not citizens because the United States did not have “complete” jurisdiction. Examples were also expounded of those who were not citizens since the United States had jurisdiction over them only to a limited extent.
The US Attorney General in 1873 was, George Henry Williams, and he was a US Senator from Oregon at the time of the debate on the 14th Amendment. As US Attorney General William released a formal opinion relating to issues of loss of citizenship that included:
So I don’t think the term “jurisdiction” in the 14th Amendment implies that non-citizens cannot be prosecuted for crimes in the United States.
I mean when he claimed that the U.S. is the only country with birthright citizenship. I think he really did think that was true.
Other than that, who knows?
They certainly can be. The longest-serving inmate at Alcatraz was Alvin Karpis–a Canadian citizen, from Montreal, Canada (and who was deported to Canada upon his parole). Many years later, we’d see the case of Ronald Smith, a Canadian citizen on death row in Montana. Although not quite so newsworthy, there are likely many more such instances that prove non-citizens are certainly subject to the jurisdiction of the US and its states, when physically inside the United States. Heck, when I’m in the US, I make sure not to drive drunk, shoplift, or anything else that might run afoul of US/state criminal law.
I am well aware that I am allowed into the US at the pleasure of the US Government, and that it can revoke that privilege at any time. So, I do my best to give them no reason to.
What in the language of the 14th Amendment would suggest that?
“If A and B, then C” has the contrapositive “If not C, then either not-A or not-B,” not “if not C, then not-A and not-B.”
Do you really need an answer to this? Seriously?
And can you really not understand the issue addressed by that particular section of the CFR versus what you’re proposing?
This is rediculous.
Wasn’t it originally “except for Indians not taxed?” The law was originally written to exclude native populations and favor immigrants. The idea was that immigrants would immigrate to and assimilate to the USA, not the Cherokee Nation or such.
If racist policies from “white America” have gotten the Indians and the Latin Americans to work together as metaphorical brothers in arms against the Anglo dominant culture of the USA, that’s the opposite effect.