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Trump considering Executive Order ending Birthright Citizenship for children of non-citizens and illegal immigrants

Trump considering Executive Order ending Birthright Citizenship for children of non-citizens and illegal immigrants

CNN: “this is what the president wants to be talking about seven days before [the election], and we’re taking the bait.”

https://www.youtube.com/watch?time_continue=68&v=H0d21nQBY8o

Axios reports this morning that Trump is considering signing an Executive Order ending birthright citizenship for children of illegal immigrants:

President Trump plans to sign an executive order that would remove the right to citizenship for babies of non-citizens and unauthorized immigrants born on U.S. soil, he said yesterday in an exclusive interview for “Axios on HBO,” a new four-part documentary news series debuting on HBO this Sunday at 6:30 p.m. ET/PT.

Here’s the video clip teasing the interview:

The clip itself doesn’t tell us a lot other than Trump expressing a view he has expressed previously on ending birthright citizenship. Except the mention of an Executive Order is new. But in the clip, there is no indication such an Executive Order is drafted, whether such an Executive Order is definitely going to happen, or when.

Axios continued:

Trump told “Axios on HBO” that he has run the idea of ending birthright citizenship by his counsel and plans to proceed with the highly controversial move, which certainly will face legal challenges.

  • “It was always told to me that you needed a constitutional amendment. Guess what? You don’t,” Trump said, declaring he can do it by executive order.
  • When told that’s very much in dispute, Trump replied: “You can definitely do it with an Act of Congress. But now they’re saying I can do it just with an executive order.”
  • “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)
  • “It’s in the process. It’ll happen … with an executive order.”

The president expressed surprise that “Axios on HBO” knew about his secret plan: “I didn’t think anybody knew that but me. I thought I was the only one. “

  • Behind the scenes: “Axios on HBO” had been working for weeks on a story on Trump’s plans for birthright citizenship, based on conversations with several sources, including one close to the White House Counsel’s office.

Readers may recall that ending birthright citizenship has been argued by Former Trump Adviser Michael Anton: Constitution Does Not Require Birthright Citizenship:

Michael Anton, a lecturer and research fellow at Hillsdale College and a former national security official in the Trump administration. Anton also was the pseudonymous author of The Flight 93 Election article that cause a stir prior to the 2016 election.

Earlier this month, Anton penned an op-ed in the Washington Post in which he argued that birthright citizenship was not a constitutional requirement.

In his op-ed, Anton wrote, Citizenship shouldn’t be a birthright:

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

. . . . Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment. The purpose of that amendment was to resolve the question of citizenship for newly freed slaves. Following the Civil War, some in the South insisted that states had the right to deny citizenship to freedmen. In support, they cited 1857’s disgraceful Dred Scott v. Sandford decision, which held that no black American could ever be a citizen of the United States.

A constitutional amendment was thus necessary to overturn Dred Scott and to define the precise meaning of American citizenship.

That definition is the amendment’s very first sentence: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The amendment clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart. No state has the power to deny citizenship, hence none may dispossess freed slaves.

Anton went on to make a distinction between “subject to the jurisdiction” and “subject to American law.”

Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe.

Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.” That is true of any tourist who comes here.

The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t.

Anton offered multiple solutions, including Executive Order:

The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States, and thus not citizens under the 14th Amendment. But given the open-borders enthusiasm of congressional leaders of both parties, that’s unlikely.

It falls, then, to Trump. An executive order could specify to federal agencies that the children of noncitizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment?

I haven’t researched the issue, so I’m not going to express a view on whether Anton is correct. In 2011, James Ho, now a Trump appointee to the 5th Circuit, wrote an Op-Ed in The Wall Street Journal rejecting the argument set forth recently by Anton, Birthright Citizenship and the 14th Amendment:

A coalition of state legislators, motivated by concerns about illegal immigration, is expected to endorse state-level legislation today at the National Press Club in Washington, D.C., to deny the privileges of U.S citizenship to the U.S.-born children of undocumented persons.

This effort to rewrite U.S. citizenship law from state to state is unconstitutional—and curious. Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution.

In the aftermath of the Civil War, members of the 39th Congress proposed amending the Constitution to reverse the Supreme Court’s notorious 1857 Dred Scott v. Sandford ruling denying citizenship to slaves. The result is the first sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

The plain meaning of this language is clear. A foreign national living in the United States is “subject to the jurisdiction thereof” because he is legally required to obey U.S. law. (By contrast, a foreign diplomat who travels here on behalf of a foreign sovereign enjoys diplomatic immunity from—and thus is not subject to the jurisdiction of—U.S. law.)

Axios added:

Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.

  • Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call “anchor babies” — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.
  • The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.

Doing this by Executive Order certainly would be challenged in the courts, and there is little doubt that some district court somewhere, and perhaps multiple district courts, would enjoin such an executive order. Which means that in a year or two, it would be in front of the Supreme Court.

*Constitutional Scholar” Jim Acosta has declared any such move unconstitutional:

Drawn like a moth to fire, CNN laments that “this is what the president wants to be talking about seven days before [the election], and we’re taking the bait.”

Yet Jonathan Swan of Axios, who broke the story, disputes that this was a planned Trump rollout:

I had been working on a story for a while, based on a leak from a good source, but it wasn’t ready for prime time. I thought I’d spring the question on POTUS

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Comments

Has an injunction against this been issued yet? Maybe by a judge in Hawaii? Expect it in 3 … 2 … 1 …

DINORightMarie | October 30, 2018 at 9:25 am

When you listen to what he says, and read it carefully, he is NOT talking about all “birthright citizenship.” He is obviously addressing the “anchor baby” issue, not all citizens born in the US who have one or both parents who are U.S. citizens, have no allegiance to another sovereign nation, and are born in a state or territory (or are serving in the military, like John McCain). The 14th Amendment and the “natural born citizen” clause in the Constitution cannot be made null and void based on an EO.

But, for national security reasons, Trump can issue an EO clarifying that anyone who is here illegally, serving as a diplomat, as a resident alien who has not filed for naturalization, as a tourist, etc. and has ALLEGIANCE to another country does not get automatic citizenship just because they were born on US soil.

The Constitutional clause on “natural born citizen” and the 14th Amendment would both have to be amended to eliminate ALL “birthright citizenship.” I believe Axios is creating news and controversy, reaching for an “October surprise” to motivate leftists.

Let’s not fall for that #FAKENEWS trap.

    Bucky Barkingham in reply to DINORightMarie. | October 30, 2018 at 11:25 am

    The best way to do this would be for Congress to pass legislation, but Congressional leaders don’t want to antagonize strong lobbies by doin so.

      “The best way to do this would be for Congress to pass legislation, but Congressional leaders don’t want to antagonize strong lobbies by doin so.”

      Which is why an EO is probably as good as we’re going to get until we spend some more effort cleaning the RINOs out of the GOP caucus.

Whether or not the President has the power to change this is beside the point. The MSM now has to report on it because Trump said it.* He has introduced the topic into the news cycle which puts it on people’s radar. He is manipulating the narrative like a media jujitsu master.

(Well, they don’t have to report on it but, doggonit, they just can’t help themselves.)

    notamemberofanyorganizedpolicital in reply to JohnC. | October 30, 2018 at 9:54 am

    Heh heh heh!

    Isn’t it Great!!!!!

    MattMusson in reply to JohnC. | October 30, 2018 at 10:11 am

    “subject to the jurisdiction thereof” What does this mean?

    The President can interpret this his way. But, eventually the Surpreme Court must tell us what it means.

    In 1865 – this did NOT apply to Native Americas because they were not under the jurisdiction of the United States.

      Milhouse in reply to MattMusson. | October 30, 2018 at 11:18 am

      Whether someone is subject to a particular jurisdiction is not some obscure subject, it’s a matter courts deal with literally every day, and there is no question or dispute about what it means. Someone who is not subject to a jurisdiction cannot be summoned to that jurisdiction’s courts, and is thus immune from its laws.

      Foreign diplomats are the most prominent examples; a foreign ambassador can literally shoot someone in broad daylight on Fifth Avenue, and no US authority can do anything to him for it without his government’s consent. If he swindles money from someone, they are SOL. If a US court sends him a summons he can rip it up and ignore it. That is what “not subject to the jurisdiction” means.

      In the 1860s that was the case for “Indians not taxed”, i.e. those who belonged to their own sovereign tribes and had not accepted US citizenship. The debates over the 14th amendment explicitly made that point, that you could not sue an Indian in any US court, and used it to distinguish him from an alien, who could be sued, and was thus subject to US jurisdiction.

        counsel in reply to Milhouse. | October 30, 2018 at 11:58 am

        The jurisdiction you refer to is statutory in nature. Congress conveys jurisdiction to Federal District Courts through Statute.

        The word jurisdiction in the 14th Amendment is used in a different context. The Amendment refers to the Jurisdiction of the United States, not the jurisdiction of its Article III Courts.

        The precise meaning of the word jurisdiction in the 14th Amendment will ultimately be determined by the United States Supreme Court.

          Milhouse in reply to counsel. | October 30, 2018 at 12:06 pm

          Congress can’t convey a jurisdiction that it doesn’t have. By giving the courts jurisdiction over someone, it is necessarily asserting its own jurisdiction over that person.

          It will never get to the Supreme Court, because there will never be a circuit split. Every lower court this comes before will reject it, and every appeal from those decisions will be rejected.

          counsel in reply to counsel. | October 30, 2018 at 12:20 pm

          Very weak arguments unworthy of even a first year law student. BTW a circuit split is neither necessary nor sufficient for a United States Supreme Court certiorari grant.

          Milhouse in reply to counsel. | October 30, 2018 at 1:17 pm

          Weak?! You made no argument at all, and you call mine weak?! Are you asserting that Congress (or any entity) can convey jurisdiction it doesn’t have?!

          And no, a circuit split isn’t necessary for cert, but when’s the last time cert was granted without one? There’s no serious question here for the Supreme Court to resolve, so why would it take it on?

          counsel in reply to counsel. | October 30, 2018 at 2:34 pm

          Of course there is no serious question of law here — yet. That’s because there is no Executive Action yet. An legal cause of action will accrue the first time the United States denies an anchor baby a benefit of citizenship such as a U.S. passport.

          Your arguments are banal, prosaic and lack legal clarity. Courts will not “ignore” the Executive Action. The risible pablum you have spewed throughout this thread makes it pellucid that you are not a member of any bar. Your bald faced arrogant predictions about what courts will do are unbecoming.

          Courts will not ignore the Executive Action. They will issue opinions. The opinion of any District Court Judge or White House Counsel will be far more informed, learned and useful than what you have spewed here in a failed attempt to position yourself as an expert.

          Milhouse in reply to counsel. | October 30, 2018 at 2:44 pm

          The first time the United States denies an anchor baby a benefit of citizenship such as a U.S. passport, the first court that sees the case will ignore any executive order purporting to deny the baby’s citizenship, and will order the State Department to issue the passport. Any appeal will be denied, and it will never get to the Supreme Court.

        Milwaukee in reply to Milhouse. | October 31, 2018 at 2:17 pm

        “Foreign Diplomats…”

        Try to stay focused. The conversation is about people in the country , legally or illegally, having a child, and that child getting citizenship. This was reported as not being the case before the 1960s. What changed?

        Legal residents, green card holders, ok, give citizenship. Visa holders, maybe not.

        If a foreign visitor drives drunk, are they not subject to our laws?

        If a foreign visitor, must they register for the draft?

        Oh, some laws yes, some laws no.

          Milwaukee: If a foreign visitor drives drunk, are they not subject to our laws?

          Not if they are an ambassador, who would be under the jurisdiction of their home country.

          Milwaukee: The conversation is about people in the country , legally or illegally, having a child, and that child getting citizenship. This was reported as not being the case before the 1960s. What changed?

          Right-wing media.

          See United States v. Wong Kim Ark 1898.

“…in a year or two, it would be in front of the Supreme Court.”

In a year or two Ginsburg may very well be gone, perhaps one more Justice. How will the remaining Justices rule, if and when this gets to the Supreme Court? One can hope can’t they?

“I simply can’t build my hope on a foundation of confusion, misery and death…I think…peace and tranquility will return again.”
Anne Frank

“Where there’s hope there’s life. It fills us with fresh courage and makes us strong again.”
Anne Frank

    Milhouse in reply to userpen. | October 30, 2018 at 11:19 am

    In a year or two Ginsburg may very well be gone, perhaps one more Justice. How will the remaining Justices rule, if and when this gets to the Supreme Court? One can hope can’t they?

    It won’t make any difference. The remaining justices would rule 8-0 against this.

(More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)

Hahahaha, what ultramaroons. More than 30 countries provide birthright citizenship to the United States? Color me skeptical. Trump’s statement was obviously about US citizenship, as the plain text makes clear—

“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States

Disclosure: I am NOT a lawyer but I have stayed in a Holiday Inn Express.

The only challenge to the 14th is:
United States v. Wong Kim Ark, 169 U.S. 649 (1898),[1] is a United States Supreme Court case in which the Court ruled 6–2 that a child born in the United States, of parents of Chinese nationality who at the time had a permanent domicile and residence in the United States and were carrying on business there but not as employees of the Chinese government, automatically became a U.S. citizen.

Wong Kim Ark’s parents were in the US legally. The courts have held that children born here of foreign ambassadors are not entitled to citizenship because the parents were not subject to the jurisdiction of the US.

    MattMusson in reply to Ronbert. | October 30, 2018 at 2:30 pm

    You are right to point out His parents were in the country legally. Maybe there is some difference if the parents are in the country illegally.

    But, you are functionally incorrect about the children of Ambassadors. They are currently receiving SSN’s and citizens rights because the Executive Branch is not making the distinctions. Although, they should probably not be receiving these benefits.

I only applied to those people AT THE TIME IT WAS RATIFIED. Not future illegals. it was present tense in this regard. It was about the slaves IMO.
Wong Kim Ark was simply a bad interpretation made by the SCOTUS in 1898 and should be over ruled. Wong was covered by The Chinese Exclusion Act that prohibited Chinese from becoming US Citizens.
The US Congress should pass a new act excluding Mexicans and all Central Americans and those from Muslim nations from US citizenship.

    Milhouse in reply to Elzorro. | October 30, 2018 at 11:23 am

    That’s insane. It’s exactly the same as arguing that the Bill of Rights applies only to those alive in 1788, and the government can freely censor, disarm, quarter troops with, search, convict without due process, etc., anyone born since then.

The problem can be fixed easily. Congress could clarify legislatively that the children of noncitizens are not subject to the jurisdiction of the United States

Then they can’t be held responsible under U.S. law, which would have no jurisdiction over them. Or their parents, for that matter.

William A. Jacobson: I haven’t researched the issue …

Well, if the U.S. doesn’t have jurisdiction over undocumented aliens or their U.S. born children, then, well, you’re an attorney. What happens if a court doesn’t have jurisdiction?

JohnC: {Trump} is manipulating the narrative like a media jujitsu master.

Nothing like proposing an unconstitutional power grab to pander and manipulate the political environment.

Elzorro: The US Congress should pass a new act excluding Mexicans and all Central Americans and those from Muslim nations from US citizenship.

That would violate two clauses of the 14th Amendment, the citizenship clause and the equal protection clause.

notamemberofanyorganizedpolicital: Only thing better than that would be to make it retroactive to 100 years back!

Can’t imagine that would cause any problems.

Besides, the government arbitrarily redefining citizenship, what could go wrong?

    gmac124 in reply to Zachriel. | October 30, 2018 at 11:06 am

    “Then they can’t be held responsible under U.S. law, which would have no jurisdiction over them. Or their parents, for that matter.”

    They are breaking the law in being here. How is that being held responsible under U.S. law?

      gmac124: They are breaking the law in being here. How is that being held responsible under U.S. law?

      If an undocumented alien breaks criminal law, they can be held criminally responsible — because they are subject to the jurisdiction of the United States. Regardless, they are subject to deportation under civil proceedings.

        luagha in reply to Zachriel. | October 31, 2018 at 3:22 pm

        Boy, I ain’t never heard of an illegal alien tearing up his summons and not showing up for court. Skippin’ back to Mexico where we can’t extradite him for his crimes. That never happens. Oh, and why is it that Mexicans always get to contact the Mexican Consulate for help if they get in a legal problem and if you don’t let them make the call they go free on appeal? I don’t get to call the Mexican Consulate to apply pressure on my account. (Yes, I know, it’s a treaty provision. One that gives them a special right that I don’t have, letting them appeal to the person who DOES have jurisdiction over them.)

          luagha: I ain’t never heard of an illegal alien tearing up his summons and not showing up for court.

          Ain’t you never heard of a native-born citizen tearing up his summons and not showing up for court?

          Citizens and non-citizens (excepting diplomats and their families) are still subject to U.S. jurisdiction, including penalties for ignoring the warrant.

          luagha: I don’t get to call the Mexican Consulate to apply pressure on my account.

          If you get arrested, you get to call anyone you want. You might call your attorney, or you might call your spouse and tell her to call your attorney.

      Milhouse in reply to gmac124. | October 30, 2018 at 11:26 am

      If they’re not subject to US jurisdiction then they’re not bound by our laws, and thus have every right to be here, and we have no right to deport or arrest them, no matter how many people they kill or rape. That’s not what you want, is it? But you can’t have it both ways.

        No, at that point since they have no visas granting them permission to be here they are invaders and can be shot.

          Milhouse in reply to SDN. | October 30, 2018 at 1:33 pm

          That’s a criminally insane suggestion.

          1. If they’re not subject to our laws then they don’t need visas to be here.

          2. Since when can you shoot someone just for being where they shouldn’t be?

          luagha in reply to SDN. | October 31, 2018 at 3:23 pm

          Gee, signs used to say, “Trespassers will be shot.”

        gmac124 in reply to Milhouse. | October 30, 2018 at 2:50 pm

        “If they’re not subject to our laws then they don’t need visas to be here.”

        This is actually where I was trying to go. Just because they are living here doesn’t make them under U.S. jurisdiction. They came here by breaking the law and have not submitted to the law yet. Therefore they are not under U.S. jurisdiction at this point.

          Milhouse in reply to gmac124. | October 30, 2018 at 3:45 pm

          You have it backwards. It’s not up to them whether to be under US jurisdiction. Their presence in the USA, other than as part of a diplomatic mission, an invading army, or a sovereign Indian nation, puts them under that jurisdiction. And it’s that very jurisdiction that makes their presence without permission illegal. If they were not subject to US jurisdiction then by definition their presence wouldn’t be illegal because they’d have no obligation to obey our laws.

        JusticeDelivered in reply to Milhouse. | October 30, 2018 at 3:53 pm

        It might be interesting to coat sodium (metal) hollow point bullets with a plastic sheath and then shoot all illegals with them. More entertaining if they are say 22 caliber.

    Milhouse in reply to Zachriel. | October 30, 2018 at 11:30 am

    Elzorro: The US Congress should pass a new act excluding Mexicans and all Central Americans and those from Muslim nations from US citizenship.

    That would violate two clauses of the 14th Amendment, the citizenship clause and the equal protection clause.

    No, just the one clause. I don’t see an equal protection issue here, because naturalization is not a right, so the US doesn’t have to offer it equally to people of all races, nationalities, or religions. I believe the laws denying naturalization to Chinese immigrants were constitutional, and if I recall correctly the Wong Kim Ark court said so. But the clause denying citizenship to their US-born children was unconstitutional and was struck down.

    Elzorro in reply to Zachriel. | October 30, 2018 at 11:31 am

    Actually The Chinese Exclusion Act was challenged in the courts. SCOTUS upheld it. It was eventually repealed by Congress.

“and subject to the jurisdiction thereof”. This is the crucial phrase that will ultimately be decided by SCOTUS. To a non-lawyer, it is pretty obvious to me what it means. If you are subject to the jurisdiction of any place, city, state or country, it means that you are governed by the laws of that place. If you are not a member of that place then you are not governed by it and cannot benefit from its largess or facilities. If a pregnant woman has a baby in a department store does that mean that her baby becomes a part owner in that store? Of course not!

    DINORightMarie in reply to inspectorudy. | October 30, 2018 at 11:11 am

    Some good comments from Rep. Steve King on this phrase, including the history from when it was written and challenged in Wang:

    https://steveking.house.gov/media-center/columns/ending-birthright-citizenship-does-not-require-a-constitutional-amendment

    Milhouse in reply to inspectorudy. | October 30, 2018 at 11:32 am

    If you are not a member of that place then you are not governed by it

    Not true. If it were true then aliens could murder and rape to their hearts’ content and could not be called to account for it.

      Ratbert in reply to Milhouse. | October 30, 2018 at 12:30 pm

      I see you deployed the NPC strawman argument de jour. If that was the case, the phrase is not needed and would not have been included. Search for your NPC talking points harder and find one that makes sense.

      txvet2 in reply to Milhouse. | October 30, 2018 at 1:36 pm

      And if your contention were true, there would be no such thing as an “illegal alien”. Anybody who got across the goal line would be automatically “legal”.

        Milhouse in reply to txvet2. | October 30, 2018 at 2:27 pm

        Was your comment addressed to me or to inspectorudy? Assuming it was addressed to me, please explain, because it doesn’t seem to make any sense. People who are here illegally, i.e. contrary to the laws Congress has made, are subject to our jurisdiction, which is precisely why they can be illegal.

          txvet2 in reply to Milhouse. | October 30, 2018 at 2:52 pm

          “” It would only seem common sense that a person’s mere presence in the country makes them subject to the criminal statutes of the any jurisdiction in which they are found – but that such presence would confer none of the benefits nor obligations of citizenship, INCLUDING birthright citizenship, unless the individual’s presence was officially sanctioned by federal authority.””

          I’ll keep shooting until I get it in the right place. 🙁

          Milhouse in reply to Milhouse. | October 30, 2018 at 3:47 pm

          Already answered twice. Mere presence confers jurisdiction, not citizenship. There is no natural link between jurisdiction and citizenship. It’s the 14th that explicitly confers citizenship based on jurisdiction, which as you just conceded is conferred by mere presence.

          txvet2 in reply to Milhouse. | October 30, 2018 at 6:02 pm

          I know you already answered it, I was just trying to get it associated with the correct comment.

      JusticeDelivered in reply to Milhouse. | November 2, 2018 at 10:32 am

      If that was the case we could execute them for being here. That is what one does with parasites.

DINORightMarie | October 30, 2018 at 11:02 am

Axios added:

Between the lines: Until the 1960s, the 14th Amendment was never applied to undocumented or temporary immigrants, Eastman said.

Between 1980 and 2006, the number of births to unauthorized immigrants — which opponents of birthright citizenship call “anchor babies” — skyrocketed to a peak of 370,000, according to a 2016 study by Pew Research. It then declined slightly during and following the Great Recession.

The Supreme Court has already ruled that children born to immigrants who are legal permanent residents have citizenship. But those who claim the 14th Amendment should not apply to everyone point to the fact that there has been no ruling on a case specifically involving undocumented immigrants or those with temporary legal status.

What happened to change this? Teddy Kennedy’s immigration law was passed.

Blame it ALL on Democrats. Because that is where it belongs.

Anton is a ****ing liar. In this quote of his:

Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

The “[or]” is his deliberate insertion which completely changes what Howard actually said. The fact is that Howard was very clear that the children of aliens, other than foreign diplomats, would be US citizens, and rejected the idea that they could be excluded.

    Colonel Travis in reply to Milhouse. | October 30, 2018 at 4:02 pm

    If you think the [or] changes the meaning (which it doesn’t), then how come you didn’t place it somewhere else in the sentence to demonstrate how it would, in fact, change the meaning to what you think it means? Because it would then shoot your argument down in flames. But I don’t think you’re crafty enough to have experimented with the language like that in the first place.

    If “Howard was very clear that the children of aliens, other than foreign diplomats, would be US citizens”, then why didn’t Howard, ah, clearly state exactly that here?

    He didn’t.

    Again, move the [or] and look what happens. If Howard meant what you falsely claim, Howard would have to have made the exclusion this way: “This will not, of course, include persons born in the United States who are foreigners [or] aliens who belong to the families of ambassadors or foreign ministers.” Or replace the [or] with [and], etc. – some other verbal separator.

    The transcript we have comes from the Congressional Globe. “The Globe, at least initially, was not considered a verbatim account, but, according to its early subtitle, provided only “sketches of the debates and proceedings”.
    https://www.llsdc.org/congressional-record-overview

    In other words, 100% accuracy down to the punctuation was not a Globe priority, which means you have to look at the rest of the debate to figure out what the meaning of the language used.

    Howard also said that “a full and complete jurisdiction” meant “the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

    And what did “jurisdiction” mean?

    At the time of debate, Sen. Lyman Trumbull said that “subject to the jurisdiction” of the United States meant not “owing allegiance to anybody else.”

    Trumbull also said during the debate over the 14th Amendment that it would not apply to Indians because “they are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.”

    The 14th Amendment pulls from the 1866 Civil Rights Act: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

    There is plenty more out there to demonstrate that just having a physical presence in the U.S. wasn’t enough for citizenship.

    You have a tendency to morph your opinion into a cold hard fact, which is just ridiculous. The context of the times doesn’t agree with you, sorry.

      The “[or]” doesn’t belong anywhere in the sentence. There is no separator implied or called for. The only exclusion Howard referred to here was diplomatic families. He said so explicitly, in words that Anton omitted: “but will include every other class of persons”.

      Howard was very clear that the children of aliens, other than foreign diplomats, would be US citizens. He and his allies said so explicitly and repeatedly. So did his opponents, whose statements his side not only didn’t challenge but openly acknowledged.

      Howard approvingly interjected during the speech of John Conness, who said: “the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.”

      Andrew Johnson, who was against the idea, wrote: “the Chinese of the Pacific States, Indians subject to taxation, the people called Gipsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States.”

      The debate also concerned German-Americans who’d been in America for generations; if the children of aliens were not to inherit citizenship then how were any of them citizens? Proponents challenged opponents to come up with a formula that would give citizenship to US-born Germans but not Chinamen. None could do so.

        Colonel Travis in reply to Milhouse. | October 30, 2018 at 6:06 pm

        The [or] is there to emphasize what was meant, because of a famously-inaccurate source providing the transcript. This guy isn’t the first one to use the [or].

        I just told you how the sentence MUST read if your theory is to be correct. It wasn’t constructed like that – because if it had been, your theory is wrong. How come you don’t bother to think in depth about this? Because you’d rather the evidence fit your conclusion rather than the conclusion fitting the evidence.

        You keep saying Howard was very clear, offering zero evidence about his clarity.

        Produce the words by Howard. <—– see this?

        Let me show you how you do it. More Howard:

        Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.

        In other words, mere physical presence was not enough for citizenship- what part of this do you not understand? You cannot get any more clear than that.

        More Howard on what “jurisdiction” means:

        The word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

        There is plenty from the era explaining what “jurisdiction” meant, what “allegiance” meant, etc. Either you ignore it on purpose or you pretend it doesn’t exist.

        You say this:

        Howard approvingly interjected during the speech of John Conness, who said: “the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens.”

        The debate here had nothing to do with where a person was born and everything to do with if race should play a part in deciding citizenship.

        You are lazy, lazy, lazy.

Doing this by Executive Order certainly would be challenged in the courts, and there is little doubt that some district court somewhere, and perhaps multiple district courts, would enjoin such an executive order. Which means that in a year or two, it would be in front of the Supreme Court.

It wouldn’t need enjoining. Regardless of whatever the President says or orders, those children would be US citizens, and every court in the country would recognize that fact whenever it happened to come up in the course of some case.

    JusticeDelivered in reply to Milhouse. | November 2, 2018 at 11:55 am

    Yes, it will be challenged, but so far Trump has mostly prevailed with SCOTUS.

    One way or another, we need to plug the anchor baby problem.

    What would America or any other country do if 20-30 million people illegally entered their country and proceeded to take over major cities?

    Milhouse, you seem to consistently push a brown people open border agenda,and that makes me wonder if you are associated with Soros in some way. What is your vested interest in allowing these people to continue invading America?

Repeal the 14th Amendment; it no longer serves its original purpose.

    Milhouse in reply to stablesort. | October 30, 2018 at 11:34 am

    What an insane proposal. Without the 14th amendment we would have no rights at all against state governments. States could amend their constitutions to eliminate whatever rights they grant, and then pass whatever laws they liked, and no federal court could do anything about it.

      Morning Sunshine in reply to Milhouse. | October 30, 2018 at 11:45 am

      I don’t know…. that would give more power back to the states. Back to the idea that states have rights within boundaries that are sovereign. My understanding is that the states were supposed to be able to create laws that applied in their states. May have made things a little messier in congress, but I cannot help but think that may have been a good thing to limit the power of the central government.

      /not saying that I agree with repealing the 14th, just willing to discuss the idea of it. It would never pass anyway.

        Without the 14th amendment New York State, or the City of Ithaca for that matter, could ban this blog, and arrest Prof J for “hate speech”.

          txvet2 in reply to Milhouse. | October 30, 2018 at 1:59 pm

          Milhouse, you’re going far around the bend trying to defend an absurd position. You ignore totally the existence of Article VI.

          As for jurisdiction, it seems that the term has multiple applications while some of you are making singular arguments. It would only seem common sense that a person’s mere presence in the country makes them subject to the criminal statutes of the any jurisdiction in which they are found – but that such presence would confer none of the benefits nor obligations of citizenship, INCLUDING birthright citizenship, unless the individual’s presence was officially sanctioned by federal authority.

          Milhouse in reply to Milhouse. | October 30, 2018 at 2:38 pm

          Txvet2, nothing in Article 6 requires states to respect the rights protected from federal infringement by the Bill of Rights. “Congress shall make no law” infringing these rights; states are free to do so. It was only the 14th that forbade the states from infringing people’s rights.

          When has “jurisdiction” ever had multiple meanings? Yes, a person’s mere presence in the country makes them subject to the criminal statutes of the any jurisdiction in which they are found, except diplomats, invading armies, and, in the 19th century USA, Indians who were members of sovereign Indian nations. And without the 14th amendment such presence would indeed confer none of the benefits nor obligations of citizenship. But the 14th amendment explicitly says that if a person is both (1) born in the US and (2) subject to US jurisdiction, i.e. he is present in the US without falling under one of those exceptions, then he is a US citizen.

          txvet2 in reply to Milhouse. | October 30, 2018 at 3:00 pm

          It appears that for the first 70 years or so people didn’t all take that view of state’s rights (until we fought a war over it) – just as for another 100 years people didn’t view the 14th the way it’s been applied since the 1960’s. Time for Congress to issue clarification – not that they won’t duck the responsibility.

          Milhouse in reply to Milhouse. | October 30, 2018 at 3:56 pm

          It appears that for the first 70 years or so people didn’t all take that view of state’s rights

          Um, yes, they did. Everyone did. It was not even a question. Nobody thought the Bill of Rights bound the states.

          just as for another 100 years people didn’t view the 14th the way it’s been applied since the 1960’s.

          That’s not true either. I don’t know where you’re getting these ideas.

          The only aspect of citizenship clause jurisprudence that wasn’t made explicit by the Supreme Court till the 1960s was that since the 14th defines citizenship this way, Congress cannot remove anyone’s citizenship without their consent. It’s not that anyone before the 1960s considered and rejected this view; it just never came up. Nobody challenged Congress’s power to strip people’s citizenship. Until they did, and the courts looked at the constitution to see whether this was possible, and found that the 14th amendment says anyone born or naturalized is a citizen, no exceptions, so obviously Congress can’t come along and say such a person isn’t a citizen.

          JusticeDelivered in reply to Milhouse. | November 2, 2018 at 12:01 pm

          “forbade the states from infringing people’s rights.”

          Right now illegals have rights which they should not have. It is time to clip their wings.

      stablesort in reply to Milhouse. | October 30, 2018 at 12:29 pm

      Could state constitutions prohibit citizens from leaving that state? Don’t we have problems with concealed carry reciprocity today? Aren’t gun regulations already mixed and confusing across state lines?

      Solving a state’s denial of federal constitutional rights should be easier to solve than relying upon an anti-slavery amendment.

        Milhouse in reply to stablesort. | October 30, 2018 at 1:54 pm

        Without the 14th amendment there are no rights that a state need recognize. Congress, using its power over interstate commerce, could guarantee people’s right to leave their state, but it could do nothing to protect the right to travel within a state.

        Concealed carry reciprocity has nothing to do with the 14th amendment. Nothing in the constitution requires states to grant someone a privilege just because some other state has done so.

        Any regulations can be mixed and confusing across state lines, but the 14th prohibits states from infringing our basic rights, such as by banning guns altogether. (Whether carrying guns is also a basic right has yet to be officially determined, which is why some states still get away with banning it; very soon the courts will officially decide that it is a protected right, and once that happens those states will be forced to comply.)

        The 14th is not an anti-slavery amendment. That was the 13th. The 14th protects free people — all people — from their states.

      txvet2 in reply to Milhouse. | October 30, 2018 at 1:45 pm

      Only if they repeal Article VI.

        Milhouse in reply to txvet2. | October 30, 2018 at 1:59 pm

        What has Article 6 got to do with it? How would Article 6 prevent states from amend their constitutions to eliminate whatever rights they grant, and then passing whatever laws they like? Nothing in Article 6 forbids states from infringing any of our rights.

          txvet2 in reply to Milhouse. | October 30, 2018 at 2:05 pm

          Article VI precludes states from violating federal law, which would seem to prevent them from violating the First Amendment.

          Milhouse in reply to Milhouse. | October 30, 2018 at 2:23 pm

          The first amendment is not a federal law. It is a restriction on the federal government. Until the 14th amendment, states were completely free to restrict expression, religion, public assembly, etc., as well as weapons, etc.; they could take property without compensation, imprison people without due process, etc., limited only by whatever they chose to put in their own constitutions.

          txvet2 in reply to Milhouse. | October 30, 2018 at 2:38 pm

          As I commented elsewhere:

          “” It would only seem common sense that a person’s mere presence in the country makes them subject to the criminal statutes of the any jurisdiction in which they are found – but that such presence would confer none of the benefits nor obligations of citizenship, INCLUDING birthright citizenship, unless the individual’s presence was officially sanctioned by federal authority.””

          txvet2 in reply to Milhouse. | October 30, 2018 at 2:40 pm

          Oops, that was in response to another of your comments. Sorry.

          Milhouse in reply to Milhouse. | October 30, 2018 at 2:41 pm

          Addressed above. Mere presence confers jurisdiction, not citizenship. There is no natural link between jurisdiction and citizenship. It’s the 14th that explicitly confers citizenship based on jurisdiction, which as you just conceded is conferred by mere presence.

        txvet2 in reply to txvet2. | October 30, 2018 at 6:55 pm

        As it happens there was a lawyer on FBN arguing exactly opposite your opinion on the 14th. As usual, there are more opinions than yours. The courts will, as usual, step in with their own opinions, and Congress will, as usual, duck their own responsibility to provide clarity.

        Anyway, if I didn’t keep setting up targets, what would you shoot at?:-)

    Elzorro in reply to stablesort. | October 30, 2018 at 11:39 am

    The equal protection clause, if it is ever applied to social justice and civil rights laws and regulations, will destroy them.

      Milhouse in reply to Elzorro. | October 30, 2018 at 11:59 am

      It has always been applied to them, and it has not destroyed them precisely because they do apply to everyone equally, much to SJWs’ dismay.

Let me just state, for the record, when Trump says he didn’t think anyone else knew about his plan, the media has finally caught him in a bald-faced lie.

As for Axios, they may not be wittingly doing a Trump rollout, but that’s exactly what they’re doing, and from a distance it is very funny.

    barnesto in reply to JBourque. | October 30, 2018 at 12:03 pm

    Axios is no friend of the Trump administration.

    It’s been widely reported this was a gotcha question. The person who asked it has been researching this angle for some time and sprung it on Trump, who is always going to answer a question.

    Yet Jonathan Swan of Axios, who broke the story, disputes that this was a planned Trump rollout:

    “I had been working on a story for a while, based on a leak from a good source, but it wasn’t ready for prime time. I thought I’d spring the question on POTUS.”

    Ragspierre in reply to JBourque. | October 30, 2018 at 12:15 pm

    “…the media has finally caught him in a bald-faced lie.”

    The media…and everyone else…catches him lying all the time.

    He’s known for it…

    gwsjr425 in reply to JBourque. | October 30, 2018 at 12:28 pm

    Not sure how anyone comes to the conclusion “nobody knew” because Trump said more than once he wanted to end birthright citizenship for illegals.

    JusticeDelivered in reply to JBourque. | November 2, 2018 at 12:15 pm

    Media constantly tells bald faced lies, meanwhile Trump does a pretty good job of jerking them around.

Voice_of_Reason | October 30, 2018 at 12:19 pm

The headline is too good to be true.

Think the Kavanaugh protests were histrionic? If Trump issued an EO banning anchor-baby citizenship, the green-hair freaks screaming at the sky this time would be truly epic!

And just like that…Trump has democrats and their media enablers defending the lawless illegal aliens.

For today, the more narrow question is: Assuming arguendo that the 14th Amendment does not require birthright citizenship, is our practice of conferring it merely an executive policy that the president has the power to change by executive order?

I don’t think so.
https://www.nationalreview.com/corner/donald-trump-end-birthright-citizenship-by-executive-order/

I don’t agree entirely, but always worth a read.

    Milhouse in reply to Ragspierre. | October 30, 2018 at 2:19 pm

    Eastman, quoted by McCarthy, contradicts himself:

    The highlighted term, “subject to the jurisdiction thereof” was understood at the time of adoption to mean not owing allegiance to any other sovereign. To take the obvious example, if a child is born in France to a married couple who are both American citizens, the child is an American citizen.

    Is Eastman seriously suggesting that such a child owes no allegiance to France, even if French law said otherwise?!

    Further, the ratification debates make it clear that everyone, on both sides, understood that of course the US-born children of Chinese citizens would be US citizens. Does Eastman claim such children would owe no allegiance to China?! How could he do so at the same time as claiming the French-born child of US citizens owes allegiance to the US?

    luagha in reply to Ragspierre. | October 31, 2018 at 3:27 pm

    I was told that the President has a pen and a phone. If a President can create the DACA policy out of whole cloth, he can certainly create this policy out of whole cloth. It has far more basis in the ‘subject to jurisdiction’ line, isn’t counter to statute, and doesn’t run afoul of the Take Care clause.

California will be the first state to allow illegal and all aliens to vote for the presidential electors. They can certainly do it for President only. In fact any state legislature can select the electors in any manner they choose. Right now they all choose to do it in a general election. the state can allow anyone they wish to vote in that election. War is on the horizon over this fact. The big blue states want to cram as many illegals in as possible and count them in the census in order to get more seats in the House of Representatives. I think the wacky leftists in California will be the first ones to do it. Red states might retaliate in many differing ways.

The Constitution has a legal, not geographical scope. An unambiguous interpretation would be birthright citizenship for babies of “the People”, a citizen mother and citizen father. All other people and babies are subject to the jurisdiction of lower laws, and both are eligible for naturalization as the Congress sees fit.

Close The Fed | October 30, 2018 at 1:47 pm

Another example of being Gulliver tied down by a thousand different strings.

The idea that the Supreme Court is the final arbiter of EVERYTHING mocks all our other efforts to govern ourselves. Nine twits, with their own very obvious agendas, without any investigative staff, presume to overrule the legislative, executive and citizen-voters with vastly more resources and time to ponder the competing issues.

Time to clip their wings. Mr. President, IGNORE THEIR USURPATIONS, STARTING NOW — OR THE DAY AFTER THE ELECTION. Your choice!

P.S. Rep. Jordan: when you become speaker please begin impeachment proceedings against RBG. Thank you.

    Milhouse in reply to Close The Fed. | October 30, 2018 at 2:05 pm

    The whole point of a constitution is that there are things the the legislative, executive and citizen-voters, with all their resources and time to ponder, simply may not do. And it is the courts’ role to stop them.

This forces the Democrats into the ugly fight they never had to have about borthright citizenship and they “win” this like they “won” on Obamacare. It is a permenet stain on them with voters as long as they defend it and it exists. Democrats will pa a price at the ballot box for as long as they refuse to say that the 14th Amendment wasn’t there for forieners to have a loophole in immigration law.

It puts the open borders crowd permanently on the defensive and they never get out of it till birthright citizneship ends.

Actually, the wording of the 14th is pretty cut and dried. Any person, over whose actions the United States government, the States or any of their lesser entities has binding authority and who was born or naturalized within the territory of the United States of America is a citizen at the time of birth or naturalization. So, anchor babies would still exist. However, it is possible to limit impact that such children would have on immigration by modifying the laws concerning familial immigration to apply only to adult US citizens.

    Milhouse in reply to Mac45. | October 30, 2018 at 2:53 pm

    To the best of my knowledge that is already the case. Parents of a US citizen do not have an automatic right to immigrate; the child must sponsor them, for which he must first become an adult and get a job that can support both him and the parents he wishes to bring in, and then they must wait several years for the application to be considered.

      JusticeDelivered in reply to Milhouse. | October 30, 2018 at 4:00 pm

      All such applications should be deferred for a century.

      Mac45 in reply to Milhouse. | October 30, 2018 at 5:56 pm

      Correct. But, an illegal immigrant parent of a US citizen child can have an order for removal cancelled, if that person meets certain requirements, one of which can be that removal would result in extreme hardship to the person’s child. Normally, the minor child would go with the alien parent, if the child were also an alien. However, if the child has US citizenship, it can not be deported. Then, of course, you have the situation where a 21 year old person, with US citizenship, can sponsor his alien parent(s), even if the citizen has lived his whole life in another country and holds citizenship in that country.

        Milhouse in reply to Mac45. | October 30, 2018 at 6:19 pm

        It seems that we’ve found an issue on which we’re in full agreement. Let’s celebrate that.

        The “extreme hardship” issue can be solved. In most cases the parents should take the child with them when they are deported. Of course the child can’t be deported, but it belongs with its parents, and they can be. If their prospects at home are so desperate that the child will be severely deprived, let alone in danger, perhaps it can be solved with a monthly allowance for the child, a little lower than what it would be entitled to if it remained here. If that’s not a reasonable solution, perhaps some relative here could take it in. In the rare case where there’s no other solution, and there’s no other reason to deport the parents apart from their being here without permission, then I say fine, let’s exercise some human compassion and let them stay, as an exception. Don’t let it become the rule. And impose enough of a penalty on them that they warn the folks back home that it wasn’t worth it.

        Once the child is of age and has enough income to support the parents, then I see no problem with allowing this. Tighten the sponsorship deal, though, by excluding sponsored immigrants from any public benefit for some long period (or perhaps permanently). Also make it a condition of naturalization (if it isn’t already) that the new citizen waive all public support for some long period.

          Mac45 in reply to Milhouse. | October 30, 2018 at 10:48 pm

          The big problem with the wording of the 14th is that it was written by people who still viewed the United States as a group of semi-independent states banded together for mutual benefit. The citizenship clause was written to protect people already living within the borders of the United States and who had no true allegiance to any other country, mainly slaves. It was not written to set citizenship standards for everyone born within the territory of the US. This can be argued from the admittedly vague words of the author of the Amendment, Sen. Jacob M. Howard of MI:

          “that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.”

          The problem is in deciphering what Howard meant by the phrase, “foreigners, aliens, who belong to the families of ambassadors or foreign ministers who are accredited to the government of the United States.” Depending upon one’s position, this can be read that foreigners, aliens AND families of accredited foreign diplomats are excluded. Or it can be read that only family members of foreign, alien diplomats are excluded.

          However, the language of the 14th ;” All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”; would make it apply to anyone living with the US who is not accorded some type of diplomatic immunity.

Just more grandstanding. Meanwhile he’s talking about building tent cities for this and presumable future caravans. Call it Camp of the Saints. He thinks out loud and uses the bully pulpit to troll so who the hell knows what he really intends to do. I live in a border state and I’m tired of the dog and pony show.

    JusticeDelivered in reply to jack burns. | October 30, 2018 at 4:09 pm

    Trumps is a master at trolling, leading idiots from both parties around by the nose. Watching them is cheap enterainment.

      I was an ardent Trump supporter and my primary reason for being so was his position on illegal immigration like a lot of other folks. Now what for you is entertaining trolling is starting to appear worn and cynical. We may be past the point of no return as far as how many illegals we have on board and if/when Florida and or Texas are lost and we never win again. Aggressive measures are needed but enjoy the floorshow as the Titanic takes on water.

        JusticeDelivered in reply to jack burns. | November 2, 2018 at 9:47 pm

        I spent over two decades working with Congress, I retired from this five years ago, and I still have a bitter aftertaste.

        Trump is dealing with a cesspool, navigating a seething mess of snakes.

        You should not be giving up on Trump, he is doing quite well considering all the vested interests, at both ends of the political spectrum, who want to torpedo him.

        Draining the swamp is going to be a lengthy process.

Interesting. I do think, though, that Axios is being a bit disingenuous in the following point:

““We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States … with all of those benefits,” Trump continued. “It’s ridiculous. It’s ridiculous. And it has to end.” (More than 30 countries, most in the Western Hemisphere, provide birthright citizenship.)”

These are countries in the Americas, including Canada, but no other western or first world countries recognize birthright citizenship. Ireland was the last European country to get rid of it and did so in 2004. Each country has their own laws pertaining to this, but it’s misleading to suggest that it’s the norm in the first world.

The statement that Axios quotes is part of an argument that includes noting that the trend, even in the Western hemisphere, is to revoke/restrict birthright citizenship, though it has long-been “customary law” (130-31). The link is in the OP.

As to whether Trump can do this with an EO, that seems doubtful, and as we learned with Obama, pens and phones do not make for lasting policy change even if it is technically legal/Constitutional. Ending “anchor baby” situations and “birth tourism” should be a priority, but it should be done through the legislature and signed into law by the president. That is the “trend” mentioned in the article to which Axios links, and it seems reasonable.

    Colonel Travis in reply to Fuzzy Slippers. | October 30, 2018 at 6:51 pm

    As to whether Trump can do this with an EO, that seems doubtful

    Why? The subversion comes from past decades. If Congress writes a law, fine. But the courts and previous administrations have bastardized the 14th Amendment into meaning something that it never meant.

    Why is adhering to what the law is supposed to be out of bounds?

    This isn’t creating law, like Obama did.

      I guess I’m taking a longer view. Trump isn’t going to be in office forever, so EO’s aren’t really going to change a thing. They may excite the base today (and for midterms, even for 2020), but after that, he’s out of office, and his EO’s are subject to revision/elimination. I’m thrilled to see Trump doing away with so many Obama EO’s, and the left will be thrilled should Trump’s successor effectively erase his EO’s. Whether or not he can is, to me at least, kind of moot. Sure, he can, he’ll get his legal team to defend it, and others will get their legal teams to fight it, and stalemate for years. By which time, he’ll be out of office anyway, and his successor can drop the whole matter. EO’s like this are base bait. Obama knew it, and so does Trump.

        This isn’t a game for electioneering. The EO effectively would be “permanent” if and to the extent it forces the Supreme Court finally to rule on the issue.

          The next president can revoke it even if it’s been declared Constitutional by the Supremes; EO’s are not laws. And actually, since there is no EO as yet, this is all kind of moot. Once he signs one and we can all see the text of it, we can have a more fruitful discussion. Right now, we are speculating and staking out positions on something that doesn’t exist. I’m not really comfortable with that degree of uncertainty and have based my comments on the OP and the Axios piece (and its linked article). I want to see the end of “anchor babies” and “birth tourism,” but I want it to be a real and lasting, hard to overturn, change, not, in other words, an EO. EO’s don’t gain the force of law just because the Supremes don’t toss them; an EO is an EO.

          janitor in reply to janitor. | October 30, 2018 at 8:36 pm

          You’re missing the point.

          No one will care about the EO.

          The point is to get a Supreme Court ruling on the issue, at which time an EO purporting to interpret the law becomes moot. The Supreme Court interpretation cannot be reversed by an executive order.

          I’m pretty sure the Supremes would be faced with whether or not the EO is Constitutional, not on the merits of the EO itself. If that were the case, then the ruling would be sound (the EO is or is not within the Executive’s Constitutional authority), and the EO could still be overturned no matter the Supremes’ ruling. On the other hand, if an “anchor baby” or “birth tourism baby” with standing somehow got their case to the Supremes, I guess a ruling that they are not actually a citizen per the EO would provide precedent, but that’s not how such things are challenged or ruled upon, and I would be gob-smacked if it happened. Happy(ish), but thoroughly, to my toes surprised and shocked. The Supreme Court is not in the business of law-making (arguably excepting ObamaCare, Roe v Wade, and a few other such cases). I’m not sure we should be advocating for judicial activism, though. Aren’t we against that?

          janitor in reply to janitor. | October 30, 2018 at 9:05 pm

          Depends on how the EO is written.

          If it’s written as if “making law” (as Obama did), then unconstitutional.

          If it’s written as an interpretation of the law by the entity charged with enforcing the law, which law hasn’t been ruled on yet, then that would be the subject matter.

          Well, to get to the Supremes, there is more to consider than the text of the EO. But otherwise, yes, we really don’t know what we are talking about. Let’s see how this EO is written before we get too carried away. 😉

          janitor in reply to janitor. | October 30, 2018 at 9:12 pm

          Agreed. 😉

          Colonel Travis in reply to janitor. | October 30, 2018 at 9:15 pm

          Now that Fuzzy has explained further, I understand her point and think it’s valid. The problem in America now is that we have two divergent political cultures. One (allegedly) respects the constitution, the other does not. As far as I’m concerned, we are in a civil war. A civil civil war, with the left hellbent on destroying anything the right does by any means possible short of bullets and gulags.

          1.) A SCOTUS ruling on an EO doesn’t necessarily wrap it all up with a bow. This should have been apparent when SCOTUS “ruled” on the travel ban. Multiple questions were left unanswered.

          2.) Did Obama care whether EOs were constitutional? No. What the heck makes you think a SCOTUS ruling would hinder someone with the next (D) president who doesn’t give a crap?

          Whatever gets done needs to be pounded in there so hard that it’s impossible for leftists to remove.

          /This. A thousand times this.

I must have read a hundred thousand pages of opinions on this issue over the past some years. Many of them really get into the weeds.

Lots and lots about what “subject to the jurisdiction” means, as well as grammatical construction of commentary by the 14’s author, etc.

Law professors have written commentary ignoring, e.g. states’ having “jurisdiction” to levy income taxes, or exert long-arm jurisdiction, as well as
e.g. making incomprehensible claims that enemy soldiers are not subject to federal or state laws. (Huh? They’re subject to U.S. laws pertaining to enemy combatants.) And foreign diplomats who break U.S. laws can be summarily expelled from the country (the issue otherwise is handled.)

And in all the commentary, there’s little or nothing discussing this:

The presupposition inherent in the original intent that at the least, those born here, who are to be recognized as “citizens”, would be “residing” in the United States (“…subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside.”)

Babies under the natural guardianship of temporary aliens, whether illegals or birther tourists, are not “residing” in the United States, because their “residence” derives only by and through their parents, who unlike the babies of legally (recognized as) resident aliens, (why do we use the adjective) are not “residing” in the United States.

    Milhouse in reply to janitor. | October 30, 2018 at 8:36 pm

    Law professors have written commentary ignoring, e.g. states’ having “jurisdiction” to levy income taxes, or exert long-arm jurisdiction, as well as
    e.g. making incomprehensible claims that enemy soldiers are not subject to federal or state laws. (Huh? They’re subject to U.S. laws pertaining to enemy combatants.)

    No, they’re not. The armed forces can hold them indefinitely as prisoners, they’re not entitled to habeas corpus, basically they’re none of the civilian courts’ business.

    (No, Boumbedienne didn’t change this. It merely said that just because the government says someone is a prisoner of war doesn’t mean he is one; if he denies it he’s entitled to a hearing on whether it’s true. Once it’s been judicially determined that yes, he’s a prisoner of war all right, that’s it; the courts have no further role to play.)

    And foreign diplomats who break U.S. laws can be summarily expelled from the country (the issue otherwise is handled.)

    Yes; how is this relevant? Illegal immigrants can also be summarily expelled. The difference is that illegal aliens have to obey the law while they’re here, and can be arrested if they don’t. They can be sued by people with claims against them. They can be summoned as witnesses. They’re required by law to pay taxes, and can be punished if they don’t. Thus they’re under US jurisdiction, and their US-born children are citizens.

    Next. Illegal immigrants do reside in the USA. They have no legal right to do so, but they do it anyway. They are inhabitants of the state where they illegally reside, and count towards its representation. This isn’t even slightly controversial.

    But more importantly, it was never an expectation that all US citizens would reside in a state. In 1868 there were large numbers of citizens who resided in territories, or in DC, and were therefore not citizens of any state, but were citizens of the United States. And of course, ever since there was such a thing as US citizenship, there were some US citizens who resided in Europe or other foreign places. The 14th’s framers knew this, and it didn’t bother them. “And of the state where they reside” must thus be read with an implied “(if any)”.

      janitor in reply to Milhouse. | October 30, 2018 at 8:47 pm

      I guess you want to quibble on irrelevant tangents.

      (1) Our military laws are U.S. laws, just not civilian laws.

      (2) Foreign diplomats are effectively subject to our laws in the sense that when they break them, we can kick them out.

      (3) Whether illegal immigrants “reside” in the United States remains a matter of interpretation. Go pull up some tax court cases arguing over who “resides” in a state, or consider whether, if you are visiting relatives for a week in another state that ipso facto means that you’re “residing” there and have to register your car. Etc.

      It’s possible that a ruling will come down that illegals ARE “residing” in the United States. Or not. Or something more nuanced, that some are, e.g. whether subject to deportation, or some length of time indicating the establishment of a permanent “residence”.

      It’s time to find out.

      gospace in reply to Milhouse. | October 31, 2018 at 1:20 am

      Next. Illegal immigrants do reside in the USA. They have no legal right to do so, but they do it anyway. They are inhabitants of the state where they illegally reside, and count towards its representation. This isn’t even slightly controversial.

      Wrong. It is controversial. http://fairus.org/issue/societal-impact/illegal-immigrants-distort-congressional-representation-and-federal-programs

      It’s also why Democrats don’t want the census to ask for citizenship status, even though it was once a routine census question. They’re afraid all of those illegal aliens residing in their congressional districts will decide they shouldn’t obey the law and turn those census forms in.

Given that illegal immigration is really just human trafficking by global corporations for cheap labor, shouldn’t we see “illegal immigrants” as citizens of the Global World? And if they are citizens of the Global World” why should we give them US passports?/s

    Milhouse in reply to elle. | October 30, 2018 at 8:40 pm

    First of all, no it isn’t. Second, there is no such thing as “citizens of the Global World.” Third and most importantly, children born here are not illegal immigrants. Nor do they have any connection to “global corporations”. We are not “giving” them US passports; the constitution defines them as citizens, so they are us, and we’re not giving them anything. They’re entitled to US passports when they get old enough to want and apply for them, just as the rest of us are.

      janitor in reply to Milhouse. | October 30, 2018 at 8:51 pm

      “the constitution defines them as citizens.”

      That’s the question that has not been definitively ruled on, so you cannot use it as a premise in your argument.

      uh..I guess you missed the satire tag. /s means satire. A joke.

      That said, I see it upsets you that I called them “Global Citizens” but you don’t seem to concerned about them being trafficked and sold on the global market for cheap labor.

      But hey, if we can get a few pennies off our lettuce and our lawn mowed on the cheap, why do we care if they get raped and robbed and left in the desert to die. Right, Milhouse?

Trump prefers “original intent” nominees to the court, and the original intent of the 14th amendment was to fix the question of wether freed slaves and their descendants could claim citizenship or be denied it.

Good arguments can be made (and have been in this thread) that foreigners LEGALLY resident here are also covered by the language – but Diplo staff and/or illegal immigrants are not – depending on how you interpret “under the jurisdiction”.

Indeed until the 1960s that was how the govt itself interpreted the 14th amendment.
The change was not instituted by a new constitutional amendment, nor by a new court ruling on the amendment – so it’s never been instituted as CONSTITUTIONAL law – so the claim that Trump (or Congress) would be violating the constitution is weak sauce.

All that said – wether the change back to previous policy will hold up vs that weak sauce depends in the end upon how activist vs original intent the SCOTUS is.

And upon their LEGAL reading of the language, remembering always that legal definitions vs standard English definitions may overlap but they almost never exactly overlap.

Assuming the now +2 original intent court rules in Trumps favor, the remaining problem is how do you deal with the 60+ years of different treatment between pre-60s and now? I’d hope that the executive order or Congressional bill would grandfather those affected, otherwise it’d be a nightmare.

If Milhouse were totally correct, and he isn’t, a foreign flagged merchant ship full of pregnant women could sail with 12 miles of the US coast, and thus everyone on board would be subject to the jurisdiction thereof, stay in U.S. waters until all the kids were born, sail back from whence they came, and all the kids would be U.S. citizens. That isn’t the case. Along with diplomats, there are foreign servicemen (and women) in the U.S. for training or on exchange programs. They don’t have diplomatic immunity. They are subject to the jurisdiction thereof, as far as courts are concerned should they commit a crime, but any children born to them here aren’t U.S. citizens. For other than crimes, they are not subject to the jurisdiction thereof. The debate over who is subject to the jurisdiction thereof isn’t new.

The Supreme Court ruling applied to a child born to 2 permanent resident aliens. A ruling that makes sense. Two people with green cards, here on a permanent basis, have made themselves subject to the jurisdiction thereof.

Now let’s take one example. A Chinese woman flies into LA on a tourist visa. Not a residency visa, no intention of staying here. Drops the kid, and flies back to China. With the newborn. Under the 14th Amendment, is she subject to the jurisdiction thereof? I think the answer is a clear no. And an Executive order can address that. And there is precedent. Children born on a ship passing through U.S. waters aren’t citizens. Children of foreign servicemembers born here aren’t citizens. Someone here just to have a kid- well, her child shouldn’t be a citizen. The Supreme Court has never addressed this.

Now let’s take criminals who’ve come into the country illegally. No visa, no passport, crossed our border and entered the country without permission. And when caught- can be thrown out of the country. Should they be considered subject to the jurisdiction thereof? Again, IMHO, no. The Supreme Court has never addressed this.

Birthright citizenship should be for children of citizens, and children of permanent resident legal permanent resident aliens who stay here after their child is born. U.S. citizenship shouldn’t be awarded like a prize in a Crackerjack Box. Pop the baby here and BOOM!, the newborn’s a citizen. And citizenship definitely shouldn’t be a reward to those here illegally, breaking U.S. law by their mere presence.

Harry Reid wanted to end it.
https://www.breitbart.com/politics/2018/10/30/watch-harry-reid-in-1993-no-sane-country-would-grant-birthright-citizenship/
“If making it easy to be an illegal immigrant isn’t enough, how about offering a reward for being an illegal immigrant? No sane country would do that, right? Guess again. If you break our laws by entering our country without permission to give birth to a child, we reward that child with U.S. citizenship and guarantee a full access to all public and social services this society provides, and that’s a lot of services. Is it any wonder that two-thirds of the babies born at taxpayer expense in county-run hospitals in Los Angeles are born to illegal alien mothers?”

They should be playing this clip and those of other dems nonstop on the telly.

If the men who wrote the 14th wanted it to mean subject to the laws of the USA then that is they would have used. This means it doesn’t mean subject to the laws of the USA.

Before the 1960s government didn’t give birthright citizenship to illegal aliens. The bureauracy just started granting citizenship to children of illegals born in the USA without an EO, court ruling or a new law. Trump is just going to force them to return to the commonsence practice in place before the 1960s.

Antifundamentalist | October 31, 2018 at 4:11 pm

Talking about “ending citizenship” by Executive Order for anyone Constitutionally entitled to it isn’t something that should be discussed. It’s a bad idea. Now, if he wants to talk about requiring that Anchor babies must leave the country with their illegal guardians or be placed under the guardianship of someone entitled to remain in the country until the child is of age…that’s something Reasonable.

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