Please, no snark, no ‘trump is bad’, etc.
I’m interested in what the legal argument is that the Trump administration is using to justify ending birthright with an executive order vs. a constitutional amendment.
What is the legal wrangling they are using to think that an executive order is a legitimate means to accomplish the end goal?
IANAL
I think they are hanging their hats on this clause:
“and subject to the jurisdiction thereof,”
If you assert illegal immigrants are not subject to the laws of this country (fact:they are) then you can say babies born to non-legal immigrants are not citizens.
That and their misguided belief that this has never been tested in court. But US v Wong Kim Ark (1898) would seem to have settled the issue. (But we see how seriously the SCOTUS takes stare decisis these days.)
Also a “generous” interpretation of the 14th says Native Americans, since they are subject of the indian nations, are not citizens.
IANAL, but as I understand it, it comes down to one phrase in the 14th amendment: “and subject to the jurisdiction thereof”. All enabling legislation also uses that exact phrase, without defining it.
Previous jurisprudence has held that this applies to anybody born in the US, even if their parents are not citizens and hold allegiance to another country.
Trump’s executive order claims that “subject to the jurisdiction thereof” does not apply to
That is the whole argument, and no justification for it is given.
Nitpick: the “subject to the jurisdiction thereof” clause does come into play in some circumstances. The argument is over whether or not it applies to people here illegally; but uncontroversially, it does NOT apply to the children of diplomats (because as diplomats they aren’t subject to US law).
Note that when it says the parents must both be diplomats, I think a person in the US because they are the spouse of a diplomat counts as a diplomat for that phrasing. But if a diplomat has a kid with an American, or with a foreigner who does not have diplomatic immunity of their own, that kid is a US citizen.
Yup, took an act of Congress,
Elk v. Wilkins, 112 U.S. 94 (1884)
In a 7–2 decision, the Supreme Court ruled that even though Elk was born in the United States, he was not a citizen because he owed allegiance to his tribe when he was born rather than to the United States, and therefore was not subject to the jurisdiction of the United States when he was born. The United States Congress later enacted the Indian Citizenship Act of 1924, which established citizenship for Indians previously excluded by the Constitution.
which, now, seems to be at risk too.
Yes, this is key to their strategy. No one disputes this use of the “jurisdiction” clause. They’re trying to expand this exclusion to include the people they want to exclude from citizenship.
The question becomes, will the Supreme Court accept that expansion? Would they accept some lesser expansion*?
*Take, for example, the cartels that are operating on US soil. Someone could argue that members of a criminal gang with enough power to routinely flout US laws are de facto not “subject to the jurisdiction” of the United States, and so any kids they have should not be citizens. Of course, why apply this to Mexican cartels, and not the Mafia?
It does seem like the intent of the 14th amendment was to exclude members of Indian tribes who are subject to the jurisdiction of said tribe rather than the US; and with the ideas they had about tribal sovereignty at the time, that probably made sense. Of course, in practice, the US proceeded to completely ignore that sovereignty whenever convenient, and once the tribal land was fully conquered and essentially absorbed into the US, pretending to continue recognizing tribal sovereignty would only serve to strip Native Americans of the rights of citizens. So it made sense to correct this through the legislature.
I don’t see a risk of the Supreme Court ruling that the Indian Citizenship Act is unconstitutional; but as a simple act of congress, it could of course be reversed by congress as well. It doesn’t have the sticking power an amendment does.
That seems like a flimsy argument. If they were not subject to US jurisdiction, they wouldn’t be pursued by the law.
You could perhaps make the argument, “liberal states like California refuse to enforce the law so people born there aren’t subject to the jurisdiction of the United States” - but doing so would in essence legitimize that situation and show that the US recognizes the “separatists” as independent. We didn’t even do that during the Civil War - part of the point was making black people citizens, but another part was affirming that even though they claimed to secede, the people of the Confederacy were still subject to the jurisdiction of the United States (which is what gave the US the right to go kick ass until the rebel states backed down).
Does Trump have a specific outlook when it comes to Native American citizenship in general, and current treaties in particular?
That’s why I said de facto, and not de jure. Sure, the US wants to catch them and charge them, but they can’t.
If this was the best they could get, they’d still take it as a win.
And you could even argue that this is a good thing*. If these criminals want their kids to be US citizens, all they have to do is turn themselves in, and go to jail! That’s a win!
*If you were so inclined
This is a useful clarification, because I think part of the argument could be about a different exception that has been held going back to common law - children of a “hostile invader” are not granted birthright citizenship.
If the OP wants to consider what a ruling that overturned Wong Kim Ark might look like you could read the dissent in that case: UNITED STATES v. WONG KIM ARK. | Supreme Court | US Law | LII / Legal Information Institute
Basically it denies the idea that the English Common Law interpretations apply and instead holds that the drafters of the 14th amendment would not have felt that it was intended to do anything other than remove race as a qualifier when considering who was a citizen at birth. It’s entirely possible that a majority of SCOTUS agrees that the 14th does not require birthright citizenship and that Congress and POTUS can either draft or enforce laws limiting it.
My response to someone actually making that argument would be that the “jurisdiction of the United States” is broader than the federal immigration laws, and the laws of the United States including the individual states are routinely enforced upon undocumented residents, even in liberal California. They pay taxes, they’re arrested for non-immigration crimes and offenses, etc.
And you would be partially wrong. Wong Kim Ark’s parents were in the United States legally, although they could neve become citizens. Thus the argument that the children born here of people in the country illegally has never been settled. WKA did settle the question of does “subject to the jurisdiction thereof” apply to foreign nationals. The answer is definitely yes if here legally (agreeing to be subject to the jurisdiction of the United States) but it is nebulous if the parents are here illegally … or at least nebulous enough that stare decisis may not apply to the right SCOTUS.
The counter argument is: Are they a ‘subject’ of the United States? In Kim Wong Ark the argument was no foreign national was subject to the US jurisdiction because they owed allegience to a foreign government. The case said that does not apply to citizenship but some of the dicta implied that historically the parents had to be in the country legally. Enough of an out for SCOTUS
Plus look at this
96
Chinese persons, born out of the United States, remaining subjects of the emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe allegiance to the United States, so long as they are permitted by the United States to reside here; and are ‘subject to the jurisdiction thereof,’ in the same sense as all other aliens residing in the United States. Yick Wo v. Hopkins
Emphasis added.
FTR: I believe that looking at the decision in it’s entirety that it applies to foreign nationals here both legally and illegally, but I also believe there is enough there for SCOTUS to justify excluding children if those here illeglly if they so choose.
As @Jas09 notes, an argument that’s been advanced by some on the right – including Judge Jim Ho of the Fifth Circuit – is that illegal immigrants could be considered “enemies” and their presence in the United States a “hostile occupation.” This stems from the Supreme Court’s ruling in Wong Kim Ark that:
“The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of . . . enemies within and during a hostile occupation of part of our territory. . .”
Clearly, this is intended to mean that children born to foreign forces occupying U.S. soil do not gain birthright citizenship. But Ho thinks that the President could declare that illegal immigration constitutes a “hostile occupation” of U.S. territory and the courts would not be in a position to gainsay his determination.
Right, and if you officially recognize the limits of your jurisdiction you’re essentially throwing away all of those other things and setting California free as an independent Republic just to argue over immigration. It doesn’t make any sense.
But when you say that jurisdiction doesn’t apply, you’re not just saying “I can’t catch you”, you are saying “I no longer have the legal authority to go after you”. It’s the last thing a government looking to exert control would do.
I don’t know what it means to be “a subject”. I do know that if you’re arrested for a crime as an illegal alien you don’t get to say “I’m here illegally, I’m not subject to your laws!”. You might get deported, or you might get imprisoned or even executed for breaking US law, so yes, you’re subject to it.
You’re looking for a legal justification that is logical, consistent with precedent, and would be accepted by a reasonable court, and wouldn’t have unintended consequences.
That’s not what Trump wants. Well, he may want it, but it’s obvious he won’t get that. So what he wants instead is a good-enough sounding excuse that his compromised Supreme Court will accept it (even when this is legally ridiculous), so that he can do what he wants.
Now, you may argue that the SC won’t do this, but look at their recent history. There have been enough stupid rulings (See: Presidential immunity) that we can’t rule out them accepting this argument. This is also supported by some of the dissents written in the cases where the SC ruled against this kind of stupidity. Several of the Justices are fine with accepting legal bullshit if it would allow them to do what they want to do. It won’t take much to tip that from a minority opinion to a majority.
Which may give the Court an avenue to issue a “narrow” decision, maybe ditching the exclusion of those with legal-but-transitory status.
And remember, strictly, the Order does not “end” birthright citizenship. It specifies certain cases in which agencies are barred from officially certifying it. But yes, it then produces that “it just is so” justification for adding those cases, entirely unreferenced and unsourced.
The proper way to have done that would have been an amendment to the Nationality Act, but of course that would take time, could not be announced on Day One and would involve a number of Members of Congress of both parties who would ask “what about MY parents, Mr. Chairman? Do I have to prove they were not illegally here? Do you, yours?”
Given this, is a wholesale rewriting of immigration law what enough Justices actually want to do?
I’m seeing three against this, three bombthrowers who would probably go for it, and one I can’t figure on, but I don’t think that Roberts and Barrett really consider this as something they really want to get into. Am I missing something?
The alternate (Trumpian) interpretation is “a subject of the United States through swearing allegience i.e being here legally.” not “subject to the laws.”
But SCOTUS cannot say granting citizenship to children of illegal immigrants is unconstitutional can they? The most is they can say is that if Congress passes a citizenship law that denies NBC status to children of illegal immigrants that such law would be constitutional.